ML19319C361
| ML19319C361 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 07/14/1975 |
| From: | Goldberg R, Hjelmfelt D, Hjelmfelt D, Oldak M CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19319C355 | List: |
| References | |
| NUDOCS 8002130873 | |
| Download: ML19319C361 (11) | |
Text
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O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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The Toledo Edison Company
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Docket No.
50-346A The Cleveland Electric Illuminating
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Company
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(Davis-Besse Nuclear Power Station,
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Unit 1)
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The Cleveland Electric Illuminating
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Docket Nos. 50-440A Company, et al.
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and 50-441A (Perry Plant, Units 1 and 2)
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RESPONSE OF CITY OF CLEVELAND, OHIO, TO APPLICANTS' REPLY TO MOTIONS OF CITY OF CLEVELAND AND DEPARTMENT OF JUSTICE FOR CERTIFICATION OF SPECIAL MASTER'S RULINGS ON CLAIMS OF PRIVILEGE TO APPEAL BOARD In an answer to the Motions of the City of Cleveland, Ohio, (City) and Department of Justice (Department) for certification to the Appeal Board of the Special Master's rulings on Applicant Cleveland Electric Illuminating Company's (CEI) claims of privilege, counsel for Applicants asserts that the requests for certification "are directly contrary to the express agreement of all counsel, made in a conference call on Dece mber 6,1974, with the then Licensing Board Chairman, John Farmakides" (Applicants' Reply, page 2). Applicants' counsel accuses the City backing away from its agreement on the ground that City did not appreciate 0
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' that the agreement "to be bound" by the Special Master's ruling would fore-close a possible appeal to the Appeal Board. (Applicants' Reply,. page 2)
Applicants' counsel also accuses City and Department "of prolonging the case at least one additional month by proceeding with their deposition interrogation at a snail's pace " (Applicants' Reply, pages 1-2; see also Applicants' Reply, page 7), and asserts (Applicants' Reply, page 8) that the "present effort to certify the Special Master's ruling to the Appeal Board, in the face of an explicit and express agreement among counsel not to take such action, can only be viewed as another ploy to interject indirectly into this proceeding an additional element of delay in the hearing process. "
Applicants' counsel's assertions and accusations are baseless, j
scurrilous, and scandalous. There is nothing more precious to City's counsel than the integrity of counsel's word to be bound by agreements made.
City's counsel resents even the most remote and oblique suggestion that counsel for the City is reneging on any agreement. There is no backing away from an agreement on the ground that the City failed to appreciate that the agreement would foreclose appeal to an Appeal Board (Applicants' Reply, page ?.).
City's position, clearly set forth in its motion (Motion, pages 10-11),
is that there was no agreement to forego the right to review by higher authority of the Special Master's rulings which were to be the rulings of the Licensing Board. There is no backing away from an agreement actually made by City's counsel on any ground.
3 Applicants' counsel professes (Applicants' Reply, page 3) a recollection "that the precise focus of the telephone discussions" en the December 6,1974 conference, " relating to the agreement 'to be bound' was directed to the matter of possible Appeal Board review. " These are weasel words. What does " precise focus" mean?
Exactly what does counsel recollect ? Is Applicants' counsel saying that the parties discussed review by the Appeal Board and agreed there was to be no such review? We challenge Applicants' counsel to set forth precisely his recollection of the " precise focus of the telephone discussions" and to show that anything other than insulation of the Licensing Board from documents that might be declared privileged was the only " raison d'etre" of the agreement for reference to a Special Master.
The agreement had its origin with the then Chairman of the Licensing Board, Mr. Farmakides. Mr. Farmakides did not want ths Licensing Board's decisional process placed in jeopardy by access to, and review of, documents that might be privileged. Mr. Farmakides, therefore, suggested to counsel for the parties that they agree to the reference of the claims of privilege to a Special Master and to agree to be bound by the Special Master's rulings.
To fulfill Mr. Farmakides' objective -- to immunize the Licensing Board from knowledge of privileged documents -- agreement on reference to a Special Master was not enough. The agreement also had to include an agreement that the parties would not ask the Licensing Board to review the documents at the request of parties dissatisfied with the Special Master's ruling. Hence ther0 was also agreement to be bound by the Special Master's i
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4-ruling, i.e., not to ask the Licensing Board to review the. Special Master's rulings.
At no time was foreclosure of administrative review by an Appeal Board and the Commission and judicial review discussed. If this were in the mind of Mr. Farmakides or Applicants' counsel it was never brought forward and was never agreed to by City.
Such an agreement was not discussed or sought because it was totally unnecessary and unrelated to the goal sought by Mr. Farmakides --
l protection of the integrity of the Licensing Board.
On a matter as fundamentally important to the case as access to the i
documents claimed to be privileged by CEI, it would have been the height of folly for counsel for City to forego administrative and judicial review, parti-cularly when such an agreement was unnecessary to protection of the Licensing Board's integrity. Applicants' counsel's argument (Applicants' Reply, page 3) that the agreement to "be bound" could only have had reference to review 1/
by an Appeal Board, is completely without evidentiary and logical support.
Applicants' counsel argues (Applicants' Reply, pages 3-4) that City and Department have waited six months to object to the agreement, and 1/ Contrary to Applicants' counsel's statement that City admits that the agreement to "be bound" did not pertain to review by the Licensing i
Board (Applicants' Reply, page 3), there is no such admission in City's rnotion. The City's position is that the agreement relates only to re-review by the Licensing Board (Motion, pages 10-11).
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, argues further that "it is... too late in the day for the City and Department now to be permitted to restruct' re their express agreement in the manner being u
being suggested by these motions so as effectively to make it a nullity. "
These arguments are frivolous. First, it is only since the Special Master's report was issued on June 20, 1975 that anyc>ne has attempted to give the agreement the breadth now claimed for it by Applicants. Second, there is no restructuring of the agreement by City and Department; only insistence that the agreement not be restructured by Applicants. Third, neither the position of City or Department makes a nullity of the agreement to "be bound" because its purpose was to protect the integrity of the Licensing Board.
That goal is not jeopardized by administrative and judicial review by appellate 1
authority.
To the very limited extent that Applicants' Reply addresses the merits of City's motion with respect to the validity of the Special Master's rulings, Applicants' replies are without merit and include a misleading version of Natta v. Hogan, 392 F. 2d 686 (CA10,1968).
With respect to the lack of authority of the Special Master to grant privileged status to documents on grounds not advanced and waived by Applicants, there is no answer in Applicants' reply to the legal analysis presented ta City's motion that the Special Master erred. There is only the rather silly statement that City and Department are indulging in " wild conjecture" that "the Appeal Board might decide otherwise". (Applicants '
Reply, page 6)
There is no " wild cpnjecture" involved in the solid legal
6-analysis presented by City's motion to which Applicants' counsel is unable to reply.
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Nor does it help Applicants to assert that each document qualify for the attorney - client and work - product privileges (Applicants' Reply, page 5). If this were so, why didn't CEI claim both privileges for the j
documents? The answer is, of course, that there is no basis for the double claim of privilege.
With respect to the claims of privilege allowed by the Special Master i
for documents where the identity of the author, assistant, addressee, or distributee was unknown, Applicants assert that the rulings of the Special Master are supported by his findings of fact (Applicants' Reply, page 6) and that the Special Master was able to ascertain who ~ rote the document and 1
who was the recipient on the basis of a review of the document (Applicants'
{
Reply, page 6).
But the Special Master did not find facts. Nor was he able to ascertain i
the indentity of the author, the addressee, and the recipients. If, the author, the addressee, and the recipients were ascertainable from a review of the documents, it is indeed strange that CEI, with its closer kinship and intimacy with the documents, admitted that it could not ascertain the identity of the author, of the assistant, of the addressee, or of the distributee.
The Special Master concedes he relied on inferences which City's motion and supplement thereto show were unlawful, unwarranted, and unsupportable.
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7-Seeking to distinguish Natta v. Hogan, and the compelling circumstance that Natta v. Hogan alone requires reversal of the Special Master's rulings on the " unknown author, etc. " group of documents, Applicants' counsel states (Applicants' Reply, page 7, note 3) that here the documents challenged by City are all " law firm opinion letters... on matters of law relevant to, and prepared in connection with, the present litigation", whereas in Natta v.
Hogan "(s)uch was not even remotely the nature of the documents". Natta v.
Hogan reveals that the documents ordered produced were all of attorneys working for the Company, were prepared in connection with the litigation, and, more pertinent here, some of them were handwritten notes of an unidentified attorney (392 F. 2d at 693-694).
1 Finally, with respect to Applicants' counsel's claim that City and Department are deliberately delaying the case through the conduct of depositions at a " snail's pace" and through the request for certification, the shoe is on the 4
other foot. Applicants' counsel has refused to accelerate the progress of the depositions by insisting on a 3 day week, by declining to draw on their army of counsel to keep the depositions going when Applicants' counsel Mr. Reynolds has a conflict of commitments, and refusing to have the depositions continue for longer periods during the day to expedite completion.
From the very inception of this proceeding Applicants have preached ex-pedition but their actions have been actions of delay not expedition. More-over depositions have been needlessly lengthened by the evasiveness of Applicants' witnesses and continuous objections of Applicants' counsel.
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m Even if the City and Department were responsible for the undue length of depositions, an assertion which is without any basis in fact, the City by its motion to change procedural dates of July 10, 1975 recommends a hearing date only one week later than that set by the Board's Order of April 29, 1975.
For all of the reasons stated in City's motion, as supplemeu:ed, and stated herein, the City's request for certification should be granted.
Respectfully submitted, de x/k Reuben Gold erg
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David C. Hjelmfelt i
Michael D. Oldak i
Goldberg, Fieldman & Hjelmfelt i
1700 Pennsylvania Avenue, N. W.
Washington, D. C.
20006 i
Telephone (202) 659-2333 Attorneys for City of Cleveland, Ohio July 14,1975 mw
CERTIFICATE OF SERVICE I hereby certify that service of the foregoing Motion for Leave to File Response of City of Cleveland, Ohio, to Aoplicants' Recly to Motions of City of Cleveland and Denartment of Justice for Certification of Syf cial Master's Rulings on Claims of Privilege to Apoeal Board and the Rc".ppnse of City of Cleveland, Ohio, to Aeolicants' Reniv to Motions of City of Cleveland and Department of Justice for Certification of Soecial Master's Rulings on Claims of Privilege to Acceal Board has been made on the following parties listed on the attr.chment hereto this 14th day of July,1975.
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Reuben Goldberg
N P.
N ATTACHMENT Atomic Safety and Licensing Board Jon T. Brown, Esq.
U. S. Nuclear Regulatory Commission Duncan, Brown, Weinberg & Palmer Washington, D. C.
20555 Suite 777 1700 Pennsylvania Avenue, N. W.
Mr. Frank W. Karas, Chief Washington, D. C.
20006 Public Proceedings Branch Office of the Secretary John C. Engle, President U. S. Nuclear Regulatory Commission AMP-O, Inc.
Washington, D. C.
20555 Municipal Building 20 High Street Douglas V. Rigler, Esq. Chairman Hamilton, Ohio 45012 Atomic Safety and Licensing Board Foley, Lardner, Hollabaugh Melvin C. Berger, Esq.
and Jacobs Joseph J. Saunders, Esq.
Schanin Building Steven Charno, Esq.
815 Connecticut Avenue, N. W.
Antitrust Division Washington, D. C.
20006 Department of Justice Post Office Box 7513 John H. Brebbia, Esq.
Washington, D. C.
20044 Atomic Safety and Licensing Board Alston, Miller & Gaines William T. Clabault, Esq.
1800 M Street, N. W., Suite 1000 David A. Leckie, Esq.
Washington, D. C.
20036 Departrrent of Justice Post Office Box 7513 John M. Frysiak, Esq.
Washington, D. C.
20044 Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commis sion Gerald Charnoff, Esq.
Washington, D. C.
20555 Shaw, Pittman, Potts & Trowbridge 910 17th Street, N. W.
Benjamin H. Vogler, Esq.
Washington, D. C.
20006 Joseph Rutberg, Esq.
Office of the General Counsel Frank R. Clokey, Esq.
Regulation Special Assistant Attorney General U. S. Nuclear Regulatory Commission Room 219 - Towne House Apartments Washington, D. C.
20555 Harrisburg, Pennsylvania 17105 Robert J. Verdisco, Esq.
Thomas J. Muns ch, Jr., Esq.
Roy P. Les sy, Jr., Esq.
General Attorney Office of the General Counsel Duquesne Light Company Re gulation 435 Sixth Avenue U. S. Nuclear Regulatory Commission Pittsburgh, Pennsylvania 15219 Washington, D. C.
20555-David McNeil Olds, Esq.
Abraham Braitman, Esq.
John McN. Cramer, Esq.
Office of Antitrust and Indemnity Reed, Smith, Shaw & McClay U. S. Nuclear Regulatory Commission Post Office Box 2009 Washington, D. C.
20555 Pittsburgh, Pennsylvania 15230 1
Pags 2 ATTACHMENT (Continued)
John R. White, Esq.
Leslie Henry, Esq.
Thomas A. Kayuha, Esq.
Fuller, Henry, Hodge & Snyder Ohio Edison Company 300 Madison Avenue 47 North Main Street Toledo, Ohio 43604 Akron, Ohio 44308 John Lansdale, Jr., Esq.
Pennsylvania Power Company Cox, Langford & Brown 1 East Washington Street 21 Dupont Circle, N. W.
New Castle, Pennsylvania 16103 Washington, D. C.
20036 Lee C. Howley, Esq.
Donald H. Hauser, Esq.
Vice President and General Counsel Corporate Solicitor The Cleveland Electric illuminating Co.
The Cleveland Electric Illuminating Co.
Post Office Box 5000 Post Office Box 5000 Cleveland, Ohio 44101 Cleveland, Ohio 44101 Alan S. Rosenthal, Chairman Richard S. Salzman, Chairman Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.
U. S. huclear Regulatory Commission U. S. Nuclear Regulatory Commis sion Washington, D. C.
20555 Washington, D. C.
20555 Dr. John H. Buck William C. Parler Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Dr. Lawrence K. Quarles Dr. W. Reed Johnson Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.
U.S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Wa shington, D. C.
20555 Edward A. Matto Karen H. Adkins Assistant Attorney General Richard M. Firestone Chief, Antitrust Section Assistant Attorneys General 30 East Broad Street, 15th floor Antitrust Section Columbus, Ohio 43215 30 East Broad Street, 15th floor Columbus, Ohio 43215 Christopher R. Schraff, Esq.
Assistant Attorney General Howard K. Shapar, Esq.
Environmental Law Section Executive Legal Director 361 East Broad Street, 8th Ficar U.S. Nuclear Regulatory Commission Columbus, Ohio 43215 Wa shington, D. C.
20555 t
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