ML20205G689

Memorandum & Order Allowing Applicants to Withdraw Motions for Summary Disposition by Notifying ASLB in Writing of Continuing Intent.Served on 851112

ML20205G689
Person / Time
Site:	Comanche Peak
Issue date:	11/08/1985
From:	Bloch P, Block P Atomic Safety and Licensing Board Panel
To:	Citizens Association for Sound Energy, HOUSTON LIGHTING & POWER CO., NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
References
CON-#484-130, CON-#485-130 79-430-06-OL, 79-430-6-OL, OL, NUDOCS 8511130318
Download: ML20205G689 (5)

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00LKETEc USNitC LBP UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 85 NOV 12 Pl2:54 Before Administrative Judges: GFFiCE OT SECREW -

00CHEnNG a sggyn Peter B. Bloch, Chairman BRANCH Dr. Kenneth A. McCollom Dr. Walter H. Jordan SERVED NOV121983

.In the Matter of Docket Nos. 50-445-0L 50-446-0L TEXA3 UTILITIES ELECTRIC COMPANY, et al.)

--) ASLBP No. 79-430-06 OL (Comanchei .a Steam Electric Station, )

Units 1 and 2) )

) November 8, 1985 MEMORANDUM (Withdrawal of Written Filings Motion)

Now that. the parties have responded 1 to the Board's October 16, 1985 request concerning the effect of the " written filings" stipulation on Applicants' withdrawal of their sumary disposition motions, the Board is free to decide the matter.

The written filings stipulation was the result of a telephone conference conducted on May 24, 1985. The impetus fcr the stipulation was the Applicants' reliance on sumary disposition motions for the purpose of disposing of complex technical matters that had initially been decided adversely to Applicants' position. The idea for the stipulation was suggested by the Board.

1 Texas Utilities Electric Co., et al. (Applicants) responded on November 1 1985, and the Staf f of the Nuclear Regulatory Commission [ Staff)respondedonNovember8,1985.

8511130318 85 5 PDR ADOCK O pg ,

C

(a b1 Written Filings Withdrawal: 2 The Board first suggested a stipulation in a dialogue with Mr.

Treby, representing the Staff, at Tr. 13,800. The Board asked:

[D]o you think that it would be fruitful to look forward to a situation where the Board would attempt to resolve these matters based furtheron the written written filingsfilings, supplemented, requested by the Board if necessary[,

or by 2]by oral [1]

argument or, [3] if the Board considers it necessary to resolve the issues fairly, by cross examination of specified witnesses.

Careful reading of this Board statement reveals that it departs from the

" genuine issue of fact" standard ordinarily applicable to summary Ordinarily, there would be a trial (with cross-

~

disposition motions.

examination of witnesses) unless the Board were to determine that there were no " genuine issue of fact" to be tried. By contrast, the third leg of the standard applied under the stipulation permits a trial only "if necessary to resolve the issues fairly."2 .

The stipulation was also discussed in the same conference in the following dialogue with Mrs. Ellis (Tr.13,803), the lay representative for CASE:

[W] hat we'[(the Board)] were requesting is that the parties agree in advance that the Board would attempt to reach decisions based on the written filings and that . . . we would only have a hearing or cross-examination jf the Board determined that that was necessary to make a reasoned decision.

2 See also Commission on Law and the Economy, American Bar Association (ABA), Federal Regulation: Roads to Reform; Final Report' 1979 With Recommendations (1979) at 3 (Recommendations 6, 7 (2)(a), as adopted by the ABA); United States Senate, Committee on Governmental Affairs, Study on Federal Regulation (1977-1978),

Volume IV, p.37.

3 The transcript incorrectly reports this word as "recent." The 4 (FootnoteContinued)

Written Filings Withdrawal: 3 As the Applicants recognize in their filing on this matter, at p. 2:

The purpose of the procedure was to limit the need for hearings to issues as to which the Board felt it could not reach a " reasoned decision," ther matters,..."gbyavoiding"undulyprolongedhearingsoftechnical Considering that the stipulation involved was adopted by the Board and was trilateral, there is no reason to permit one party to withdraw voluntarily from the stipulation. Nor need withdrawal be permitted by any legal or equitable consideration. Applicants' problem is that.they now consider their filings not to be an adequate basis on which to stand at this time. Extensive studies are underway by the design review group of the Comanche Peak Review Team, and findings about design issues could affect the Applicants motions, as well as the other Walsh-Doyle matters covered by our December 1983 Order and not yet responded to by Appli-cants.

Under the circumstances, we could permit Applicants to withdraw their motions. Since withdrawal would have no effect on the rights of the other parties under the stipulation, this would leave CASE and the Staff as the only parties requesting a decision under the stipulated procedure.

(FootnoteContinued) transcript should be corrected to include the word " reasoned" in place of "recent."

4 Memorandum and Order (Applicants' Motion for Modification), October 2, 1985, at 4.

1, 1I s

h.

Written Filings Withdrawal: 4 What we believe would serve both justice and the Applicants better, would be for us to suspend consideration of the written filing motions at the present time (awaiting filings on the merits from both Applicants and Staff) and to permit Applicants to supplement or entirely supersede their filings when they have completed the necessary studies.5 (As we understand Applicants' Plan in relation to the stipulation, we expect that eventually they will make written filings on all the Walsh-Doyle issues; if our understanding is incorrect we expect Applicants to correct our impression with a brief covering this point.)

After Applicants make their supplementary or superseding filings, there will of course be an opportunity for CASE and the Staff to re-spond. Then .the stage will be set for the Board to determine the outcome of this proceeding by considering the documents . before us, pursuant to the stipulation. The Board will have the discretion to-request additional information or to schedule whatever hearings it considers to be necessary to resolve the issues fairly (in a reasoned decision).

5 As Applicants have pointed out in their brief, at p. 7, CASE may use Applicants' affidavits as evidence when it is relevant.

Withdrawal, amendment or superseding of the motion does not affect CASE's ability to utilize the affidavits Applicants submitted.

r t

Written Filings Withdrawal: 5 0RDER For all the foregoing reasons and based on consideratico of the entire record in this matter, it is this 8th day of November 1985 ORDERED:

1. Applicants may withdraw their motions for summary disposition by notifying the Board in writing of their continuing intent to do so.

Withdrawal would not prejudice the rights of other parties pursuant to the written filings stipulation.

2. The Board will not decide the written filings motions until (a)

Applicants have had an opportunity to complete the necessary studics and to file new documents either supplementing or superseding their prior filings, (b) the Staff has responded to the Applicants' new filing, and (c) CASE.has had an opportunity to complete its studies of the new filings and to supplement or supersede its prier filings.

FOR THE .

ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland

[ written /BLOCH4]

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