ML19305E228

Motion to Preclude DOJ from Filing Principal Brief Re Aslab 800328 Order.Doj Failed to File Principal Brief by 800404. DOJ Seeks to Obtain Unfair Tactical Advantage by Untimely Filing

ML19305E228
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	04/07/1980
From:	Bouknight J, Green D BAKER & BOTTS, HOUSTON LIGHTING & POWER CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19305E229	List: ML19305E228
References
NUDOCS 8004230154
Download: ML19305E228 (3)

Text

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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

)

In the Matter of ) -

HOUSTON LIGHTING & POWER COMPANY ) Docket Nos. 50-498A

_e t _a l . ) 50-499A (South Texas Project, Units 1 and 2) )

)

TEXAS UTILITIES GENERATING COMPANY ) Docket Nos. 50-445A

) 50-446A (Comanche Peak Steam Electric )

Station, Units 1 and 2) )

)

MOTION TO PRECLUDE THE DEPARTMENT OF JUSTICE FROM FILING PRINCIPAL BRIEF AS A REPLY On March 28, 1980, this Board issued an Order directing all of the parties to the pending discovery controversy to file memoranda furnishing additional authority by April 4, 1980.1[ The Board's Order instructed:

"[A]ll parties are hereby given one week to furnish us any additional authority . . ."

[ Emphasis in original omitted).

The Board expressly made it clear that:

The additional memoranda called for by this Order are to be in our hands by the close of business on Friday, April 4, 1980.

_/ A copy of that Order is annexed as Exhibit A.

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It was added that each party would have the opportunity to reply to its opponents' initial memoranda on April 9,1980, if deemed necessary.

Houston Lighting & Power Company [" Houston"), Central & >

South West Corporation, Texas Utilities Generating Company, and the NRC Staff all filed principal memoranda on April 4, in compliance with the Board's Order.

The Department of Justice [" Department"), however, did not do so. Instead, the Department has advised Houston that it intends to file its principal memorandum on April 9, the date set by the Board for reply memoranda only.

The Board's Order is not subject to legitimate misread-ing. The " memoranda called for by th[e] order" were to be in the hands of the Board by April 4. Any principal memor-andum from the Department would now $<. untimely. "Any party" was to have the opportunity to reply. By filing its princi-pal memorandum on the date for responses thereto, the Depart-ment seeks to preclude its opponents from submitting a writ-ten rejoinder, and thereby obtain a tactical advantage. Such maneuvering contravenes the Board's March 28 Order directly.

Accordingly, Houston respectfully moves the Appeal Board not to receive the Department's memorandum on April 9, 1980; or in the alternative, to order that any memorandum received t

. on that date from the Department shall be confined to dis-cussing the authorities which have been already furnished to the Board by other parties in compliance with its March 28 Order, and no others.

Respectfully submitted, t .

JY A. BoukNig 't, Jr.

/ . l4YY\

ulJ1~as 'GY Grepn Attorneys for Houston Lighting

& Power Company OF COUNSEL:

BAKER AND BOTTS 3000 One Shell Plaza Houston, Texas 77002 LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, N. W.

Washington, D. C. 20036 April 7, 1980

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