ML20148Q307
| ML20148Q307 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak  |
| Issue date: | 11/16/1978 |
| From: | Knotts J, Reynolds N DEBEVOISE & LIBERMAN |
| To: | |
| References | |
| NUDOCS 7811300008 | |
| Download: ML20148Q307 (9) | |
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UNITED STATES OF ER C M UfROOM NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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TEXAS UTILITIES GENERATING
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Docket Nos. 50-445A COMPANY, et al.
os N 50-446A (Comanche Peak Steam Electric g $}) h [ q Station, Units 1 and 2) g
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O HOUSTON LIGHTING & POWER COMPANY, et al.
h Docket Nos. 50-498A D
50-499A (South Texas Project, 4
Units 1 and 2)
MOTION FOR PARTIAL CONSOLIDATION By its Order of October 19, 1978, the Board set a prehearing conference in the Comanche Peak proceeding for 9:30 a.m. on December 5, 1978.
By Notice dated November 8, 1978, the Board rescheduled a prehearing conference in the South Texas proceeding for 3:00 p.m. on December 5, 1978, and scheduled a conference of counsel in both proceedings regarding consolidation for 2:30 p.m.
that same day.
Texas Utilities Generating Company, Applicant in the Comanche Peak proceeding and an intervenor in the South Texas proceeding, hereby moves the Board ~1/to consolidate, as appropriate, discovery 1/
The Board presiding in the South Texas operating license
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antitrust proceeding has the same members as the Petitions Board in Comanche Peak and presumably will be named to pre-side in the Comanche Peak operating license antitrust pro-ceeding.
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and evidentiary hearings, but not the initial decisions, in the two proceedings, as more specifically proposed below.
I.
DISCUSSION The Nuclear Regulatory Commission's Rules of Practice, 10 C.F.R. 52.716, provide, in pertinent part:
"On motion and for good cause shown.
the presiding officers of each affected proceeding may consolidate for hearing or for other purposes two or more proceedings if it is found that such action will be conducive to the proper dis-patch of (the NRC's] business and to the ends of justice and will be conducted in accordance with the other provisions of this subpart".
Thus, the following factors are to be taken into account in considering a motion to consolidate proceedings.
a.
Whether good cause has been shown.
b.
Whether consolidation will be conducive to the proper dispatch of NRC business aad to the ends of justice.
c.
That the consolidated proceedings will be conducted in accordance with the other proviaions of this l
subpart.
Consolidation in NRC practice does not necessarily connote l
merger of all phases of two or more proceedings into a single proceeding.
In the procedures for duplicate plants (10 C.F.R. Part 2, Subpart D) for example, the Commission has authorized noth separate hearings on site-specific safety and environmental 2/
matters and antitrust aspects (10 C.F.R.
S2. 402 (a)) and con-l solidation for hearing pursuant to 10 C.F.R.
$2.716 of individual i
i 2/
Duplicate plants generally involve different applicants utilizing the same design at widely-scattered sites, so typically antitrust or environmental proceedings would have. nothing in common while many safety aspects would be identical.
phases of proceedings to consider common issues (10 C.F. R.
- 52. 4 02 (b) ).
Consolidation of seme issues for hearing, separation of other issues for hearing, and, thereafter, issuance of separate initial decisions was effected by the Licensing Board in Matter of
-Duke Power Company (Perkins NucleapA Station Units 1, 2 and 3 and Cherokee Nuclear Station Units 1, 2 and 3), Docket Nos. STN 50-488 -
50-493 (see Order of July 6, 1977 therein and Matter of Duke Power Company (Cherokee Nuclear Station Units 1, 2 and 3),
LBP-77-74, 6 NRC 1314 at 1316 (1977)).
That Consolidation is a flexible tool in the hands of this Board may be inferred from the foregoing.
Specifically, as may be seen from the foregoing, the Commission has viewed in other contexts that consolidation pursuant to 10 C.F.R. 52.716 includes partial consolidation of common issues for the hearing phase, with separate hearings on matters which are peculiar to one or more applications and with separate initial decisions.
A.
Good Cause There is good cause for partial consolidation here in that many issues are the same, most of the parties are the same, and the same Board is presiding in both proceedings.
Economy in the utilization of governmental resources as.well as the resources of those parties participating in both proceedings militates in favor of consolidation.
Issues not common to both proceedings can be heard separately, especially where an issue peculiar to one proceeding threatens to delay both proceedings unless heard separately.
Prompt resolution of any outstanding antitrust issues n
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is essential in both proceedings. ~ For purposes of discovery and the trial of many cectral issues, as well as memoranda of law and possible stipulations of fact, partial consolidation will be more conducive to the proper dispatch of the Commission's business with reasonable expedition than would separate sequential or concurrent proceedings.
It may be that one proceeding may experience significant delays not experienced in the other proceeding.
The Board should implement consolidation flexibly such that,if circumstances warrant, the proceedings may be timely severed for some or even all issues.
In an; event, separate j
initial decisions should be issued.
B.
Dispatch of NRC Business; Ends of Justice l
The rights.of all parties will be protected in the event of partial consolidation, given the flexibility of the consolidation procedure.
Since there are some parties to one proceeding who are not parties to the other, the Board may be required to exercise its broad powers unde-i 52.718 to control the participatioc.
of such party and
- rresentation of evidence bearing en its interest and
-h a matter as to protect its rights or th.
e partial consolidation will avoid unnecer me and effort and eliminate 3/
Operatins-licenses ac are needed by the late summer c1 1980.
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unnecessary paperwork, and can be managed in such a manner as to protect the' rights of a;l parties, it will serve the ends of justice and should be orderec.
C.
Other Provisions cf Subpart G The proceeding, as partially consolidated, can and should be conducted in accordance with the other applicable provisions of Subpart G " Rules of General Applicability" of the Commission's Rules of Practice, 10 C.F.R. Part 2.
In this regard, the powers of the Board set forth in 10 C.F,R.
52.757 with regard to the prevention of unnecessary dezay and of the accumulation of an unnecessarily large record would be fully applicable, as would its authetity'to summarily dispose of some or all issues in one or both proceedings.
Likewise, the provisions regarding stipulations (10 C. F. R.
52.759) would remain fully applicable to all or part of one or both proceedings. -
In -, sense would the, South Texas and Comanche Peak pro-ceedings merge into a single proceeding simply because discovery and evidentiary hearings on many issues would be consolidated.
Separate hearings could be held on matters peculiar to each application on motion for gcod cause shown, or at the initiative of the Board to avoid prejudice to any party ci as the ends of justice may require.
Since there would be separate initial decisions, an appeal by a party to one proceeding would not necessarily result in briefing obligations on the parties to the other proceeding.
i..
II.
CONCLUSION For the foregoing reasons, the Board should order partial consolidation of the two proceedings on the flexible terms discussed herein.
es ectfully submitted, 6-s j,C4k (W Josep'las S.
B.
Knotts, fr.
Nich,o Reynolds DEBEVOISE & LIBERMAN 806 15th Street, N.W.
Ste. 700 Washington, D.C.
20005 Counsel for Texas Utilities Generating Company Of Cou..oel:
J.
Irion Wcrsham M.
D.
Sampels Spencer C.
Relyea WORSHAM, FORSYTHE & SAMPILS 2001 Bryan Tower Suite 2500 Dallas, Texas 75201 Date:
November 16, 1978
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the matter of
)
)
TEXAS UTILITIES GENERATING
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Docket Nos. 50-445A COMPANY
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50-446A
)
(Comanche Peak Steam Electric
)
Station, Units 1 and 2)
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HOUSTON LIGHTING AND POWER
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Docket Nos. 50-498A CO.,
et al.
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50-499A
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(South Texas Project, Units
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1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the " Motion for Partial Consolidation" in the captioned matters were served upon the following persons by deposit in the United States mail, first class postage prepaid, this 16d3 day of November, 1978.
Marshall E. Miller, Esq.
Mr. Jerome D.
Saltzman U.S.
Nuclear Regulatory Chief, Antitrust and Commission Indemnity Group Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Michael L.
Glaser, Esq.
Nuclear Reactor Regulation 1150 17th Street, N.W.
Washington, D.C.
20555 Washington, D. C.
20036 J.
Irion Worsham, Esq.
Sheldon J.
Wolf, Esq.
Merlyn D.
Sampels, Esq.
U.S.
Nuclear Regulatory Spencer C.
Relyea, Esq.
Commission Worsham, Forsythe & Sampels Washington, D.C.
20555 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 Atomic Safety and Licensing Appeal Board Panel Jcn C. Wood, Esq.
U.S. Kuclear Regulatory W.
Roger Wilson, Esq.
Commission Matthews, Nowlin, Macfarlane &
Washington, D.C.
20555 Barrett 1500 Alamo National Building Chase R.
Stephens San Antonio, Texas 78205 Docketing and Service Branch U.S.
Nuclear Regulatory Charles G.
Thrash, Jr., Esq.
Commission E.W.
Barnett, Esq.
Washington, D.
C.
20555 Theodore F.
Weiss, Esq.
J.
Gregory Copeland, Esq.
Baker & Botts 3000 One Shell Plaza Houston, Texas 77002 R.
Gordon Gooch, Esq.
Michael I. Miller, Esq.
Baker & Botts Richard E.
Powell, Esq.
1701 Pennsylvania Avenue, N.W.
David M.
Stahl, Esq.
Washington, D.C.
20006 Thomas G.
Ryan, Esq.
Isham, Lincoln & Beale Roy P.
Lessy, Jr., Esq.
One First National Plaza Michael B.
Blume, Esq.
Chicago, Illinois 60603 U.S.
Nuclear Regulatory Commission Don R.
Butler, Esq.
Washington, D.C.
20555 Sneed, Vine, Wilkerson, Selman & Perry Roff Hardy P.O.
Box 1409 Chairman and Chief Executive Austin, Texas 78767 Officer Central Power and Light Jerry L.
Harris, Esq.
Company Richard C.
Balough, Esq.
P.O.
Box 2121 City of Austin Corpus Christi, Texas 78403 P.O. Box 1088 Austin, Texas 78767 Mr. Perry G. Brittain President Don H.
Davidson Texas Utilities Generating City Manager Company City of Austin 2001 Bryan Tower P.O.
Box 1088 Dallas, Texas 75201 Austin, Texas 78767 R.
L. Hancock, Director J.
A.
Bouknight, Jr.
City of Austin Electric Utility Lowenstein, Newnan, Reis &
P.O.
Box 1086 Axelrad Austin, Texas 78767 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 G.W.
Oprea, Jr.
Executive Vice President John W.
Drividson, Esq.
Houston Lighting & Power Sawtelle. Goode, Davidson &
Company Ticilo P.O.
Box 1700 1100 San Antonio Savings Houston, Isxas 77001 Building Richard D.
Cudahy, Esq.
Joseph Gallo, Esq.
Douglas F.
John, Esc.
Robert H.
Leoffler, Esq.
Akin, Gump, Haver & Feld Isham, Lincoln & Beale 1100 Madison Office Building l
1050 17th Street, N.W.
Suite 701 1155 15th Street, N.W.
Washington, D. C.
20036 Washington, D.C.
20005 John D.
Whitler, Esq.
Ronald Clark U.S.
Department of Justice Energy Section Antitrust Division U.S.
Department of Justice Washington, D.C.
20530 P.O.
Box 14141 Washington, D.C.
20044 l
1
Morgan Hunter, Esq.
Kevin B.
Pratt Bill D.
St. Clair, Est.
A o ney General,s O.,,1ce McGinnis, Lockridge & Kilgore State of Texas Fifth Floor, Texas State Bank P.O.
Box 12548 Building Austin, Texas 78711 900 Congress Avenue Austin, Texas 78701 Frederick H.
Ritts, Esq.
Northcutt Ely W.S.
Robson Watergate 600 Building General Manager Washington, D.C.
20037 South Texas Electric Cooperating, Inc.
Route 6, Building 102 Victoria Regional Airport Victoria, Texas 77901 Robert C.
McDiarmid, Esq.
Robert Jablon, Esq.
2600 Virginia Avenue, N.W.
Washington, D.C.
20037 N
ESR W Joseph ~B. Knotts, Jr.\\
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