ML20238E480
| ML20238E480 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 09/08/1987 |
| From: | Eggeling W, May J, Steenland D ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#387-4322 CPA, OL, NUDOCS 8709150023 | |
| Download: ML20238E480 (5) | |
Text
.
1 h?
CNE T E T-thNTC Filed: September 8,1987
'87 SEP 10 P3 :26 UNITED STATES OF AMERICA
.y c NUCLEAR REGULATORY COMMISSION Uk" before the ATOMIC SAFETY AND LICENSING BOARD
)
In the matter of
)
)
TEXAS UTILITIES ELECTRIC
) Docket Nos. 50-445-OL COMPANY, ALAL
)
50-446-OL
)
50-445-CPA (Comanche Peak Steam
)
Electric Station, Units I and 2
)
)
)
RESPONSE TO TEXAS MUNICIPAL POWER AGENCY'S
" MOTION FOR PROTECTIVE ORDER" On August 14, 1987,1 Texas Municipal Power Agency ("TMPA") filed a purported response to " Consolidated Interveners' (6-19-87) Interrogatories and Request for i
Production of Documents"8 along with a Motion for a Protective Order (" Motion").
l TMPA's motion seeks expressly the relief which is only lurking in Brazos' " Motion for Declaratory Order" (August 14,1987): ' a prohibitive injunction forbidding TU Electric 1
Through apparent inadvertence, neither the Project Manager, TU Electric, nor its counsel, Ropes & Gray, were included on the service list prepared by TMPA's counsel.
i They were not served with TMPA's filing until August 26, 1987.
2 TMPA's " response" consisted of blanket objections to the entire set of interrogatories and to the accompanying document production request. TU Electric, as j
Project Manager, concluded that it was unable to advance or sponsor these objections on behalf of the Applicants. Thus, TMPA was advised that, to the extent it deemed such objections meritorious, it should file them with the ASLB itself in accordance with customary procedures. Sct, t&, Response to Brazos' Motion for Declaratory Order (September 8,1987 at 9 n.21) k
)f05 0
i
+
i from legitimately exercising its legal rights in the Texas state courts. ' TMPA's Motion should be denied.
I.
. TMPA's " Motion For a Protective Order" is misnamed. TMPA is not seeking a protective order, i.e., an order restricting or ameliorating the burden of discovery in a-f
' particular case.s Rather, TMPA is requesting this Board to issue 'an injunction, the.
terms of which would specifically prohibit TU Electric from taking certain future actions. This Board, of course, lacks the jurisdiction
- to issue such injunctive relief.s TMPA's " Motion" may thus properly be dismissed.s II.
Assuming arguendo this Board could consider the issuance of some injunctions, the specific injunction sought by TMPA would be wildly improper. This injunction would purport to prevent TU Electric from bringing breach of contract claims to Texas state court.7 As is more fully argued in the Resnonse to Brazos' Motion, TU Electric's s
Sag,' gJL,10 C.F.R. $ 2.740(c); Fed. R. Civ. P. 26(c).
4 Even if there were some jurisdictional power, moreover, it is impossible to divine from the TMPA' filing the requisite showing of good cause necessary to support any protective order. For example, while the text of the motion discusses "a small' number of documents" which it desires to disclose, the only reference cited describes only a single document. There is thus no way even to consider what actions TMPA actually proposes, much less whether there is any basis for its unadorned and wholly explained claim that the disclosure of such as yet unidentified documents would be in "compl[iance] with its legal duties before the NRC." The source and nature of these hypothesized " duties" have yet to be disclosed to the Project Manager.
5 As the authorities and precedents on this fundamental deficiency are collected and analyzed in the Response to Brazos' Motion being filed contemporaneously herewith, we incorporate that brief by reference herein and respectfully invite the Board's attention to pp.10-13, and n.26, therein.
e Marshall v. Gibson's Products. Inc. of Plano,584 F.2d 68 (5th Cir.1979)
(where court lacked power to issue injunctive relief sought, it lacked subject matter jurisdiction).
7 Or, indeed, to present such claims to anX court competent to entertain them. _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ -
4 i
rights to petition a state court for enforcement of alleged contract rights is nearly.
I absolute.
It would be repugnant to the Constitution, including both the express I
f prohibitions of the First Amendment and the implicit restrictions imposed by' the basic
]
l Federalism scheme, for a federal agency to purport to impede or interfere with these i
rights.s CONCLUSION TMPA seeks relief which is patently beyond the power of this Board to effectuate.
Its request is, moreover, expressly motivated by the desire to attempt to immunize TMPA's proposed conduct from the legal effects it may have elsewhere. It is settled that the entry of any such purported immunity would contravene fundamental rights.
The Motion should therefore be dismissed.
TEXAS UTILITIES ELECTRIC COMPANY For th Owners of CPSES 62 & 9 i.1k William S. Eggeling 7-Deborah S. Steenland Jeffrey H. May David A. Martland ROPES & GRAY 225 Franklin Street Boston, MA 02110 (617) 423-6100 Attorneys for Texas Utilities Electric Company a
Sgg, g&, Bill Johnson's Restaurant. Inc. v. N.L.R.B., 461 U.S. 731, 743-44 (1983); see also Response to Brazos Motion at 10-15. _
r.
DC( nE p r
'w
'87 SEP 10 P3 :26 CERTIFICATE OF SERVICE fri.
I, William S. Eggeling, hereby certify thatlonLSeptember 8, p
1987, I made service of " Response to Texas Municipal Power Agency's Motion for Protective Order" by mailing copies thereof, postage prepaid, to:
Peter B.
Bloch, Esquire Mr. James E. Cummins Chairman Resident Inspector Administrative' Judge Comanche Peak S.E.S.
~ Atomic Safety and Licensing c/o U.S.
Nuclear Regulatory Board Commission U.S. Nuclear Regulatory P.
O.
Box 38 Commission Glen Rose, Texas 76043 Washington, D.C.
20555 Dr. Walter H. Jordan Ms. Billie Pirner Garde Administrative Judge GAP-Midwest Office 881 W.
Outer Drive 104-E. Wisconsin Ave.
-B Oak Ridge, Tennessee 37830 Appleton, WI 54911-4897 l
Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington,-D.C.
20555 Washington, D.C.
20555 Lawrence J.
Chandler, Esquire Mrs. Juanita Ellis Office of the Executive President, CASE Legal Director 1426 S.
Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C.
20555 Renea Hicks, Esquire Ellen Ginsburg, Esqujre Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel P. O.
Box 12548 U.S. Nuclear Regulatory Capitol Station Commission Austin, Texas 78711 Washington, D.C.
20555 l
_-______a
W rn.
l.! ?"
o
. $.5 V-
, Anthrny Roisman,. Esquire Mr. Lanny A. Sinkin Suite 600 Christic Institute L
- 1401 New York Avenue, N.W.
1324 North Capitol Street i
- Washington, D.C.
20005 Washington, D.C.
20002 l
Dr. Kenneth A. McCollom Mr. Robert D. Martin Administrative Judge Regional Administrator i
1107 West Knapp Region-IV I
Stillwater, Oklahoma 74075 U.S. Nuclear Regulatory Commission i
Suite 1000 1
611 Ryan Plaza Drive Arlington, Texas '76011 Elizabeth B. Johnson
'Geary S. Mizuno, Esquire Administrative Judge.
Office of the Executive Oak Ridge National Laboratory Legal Director P. O. Box X,. Building 3500 U.S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission
~
Washington, D.C.-
20555 Nancy _H. Williams James :R.. Bailey, Esquire 2121 N. California Blvd.
P.O.
Box 7000 Suite'390 Bryan, Texas-77805 Walnut-Creek, CA' 94596 Foster De Reitzes, Esquire Robert A. Jablon, Esquire Heron, Burchette, Ruckert, Spiegel'& McDiarmid
& Rothwell Suite 1100 Suite 700 1350 New York Ave., N.W.
i 1025 Thomas Jefferson St., N.W.
Washington, D.C.
20005-4798 Washington, D.C.
20007 2
e William S. Eg flingP w
1 i
i I
i
._-_____-_D