ML19319C469
| ML19319C469 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 11/20/1975 |
| From: | Frysiak J, Rigler D, Smith I Atomic Safety and Licensing Board Panel |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8002190919 | |
| Download: ML19319C469 (13) | |
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UNITED STATES OF AMERICA
. IE NOV 211975 > c NUCLEAR REGULATORY COMMISSION a
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.aw Before the Atcmic Safety and Licensing Board
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THE TOLEDO EDISON COMPANY AND
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THE CLEVELAND ELECTRIC ILLUMINATING
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Docket Nos. 96-T!5?J COMPANY
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50-500A (Davis-Besse Nuclear ?cwer Station,
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50-501A Units 1, 2 and 3)
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Docket Nos. 50 440A (Ferry Nuclear Power Plant,
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50 L41A Units 1 and 2)
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MEMORANDUM AND CRDER OF THE BOARD AMEND ~NG SCHEDULE FOR COMMENCEMENT C; u.r A2. v-._._aa n.Lm :- _ -. v c. v c. :.. m. o. r_ A r :c._ere a
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The Scard has considered Applicants' Ncvember 4, 1975 Motion for an Extension of Time Within Which to File Applicants'
? rehearing 3rief, and we have taken into account the comments of the various parties at the Seventh ? rehearing Conference n
of October 31, 1975 A review of the transcript indicates that the hearing might be conducted acre efficiently with the savings in time to all concerned if the Board were to grant a brief delay so that the parties could present their respec-tive cases in a more concise and cogent manner.
Accordingly, Our ruling herein, conveyed to the parties by telephone conference call of November 5, 1975 subsequently has under-gone additional =cdification.
This written Memorandu and Order is necessitated by our desire to comment upon certain representations in Applicants' noving papers.
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2-the hearing commencement was postponed until December 1 in the expectation that additional preparation time will result in a shorter hearing.*
With respect to Applicants' Motion for an Extension of Time within which to file their pretrial brief, we grant substantially the relief requested by Applicants, but we are granting the Motion not for the reasons set forth in paragraph two and three of Applicants' moving papers.
The Scard does not accept the validity of the assertions in paragraphs two and three of Applicants' Motion.
We refer to the issue of
" specificity."
Pursuant to the request of Applicants, the Board in its Fourth Prehearing Conference Order dated April 29, 1975 required parties other than Applicant to file a " Statement of the Nature of the Case to be Presented."
As Applicants themselves have recognized, the degree of specificity required in the September 5, 1975 filing could not be obtained until the completion o'f the discovery process.
A realistic predi-cate.to a comprehensive statement as to the nature of the evidence which will be utilized in support of each issue in controversy is the completion of the discovery process.
Were
- Hearing commencement subsequently reset to. December 8, 1975
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. it otherwise, the value of the discovery process would be substantially reduced.
Indeed, the purpose of discovery is to enable the parties to ascertain what evidence supports each contention and if some of the contentions should be withdrawn or otherwise modifitd.
The Board is cencerned that Applicants in this pleading, in recent prehearing conferences, and in other recently filed pleadings
- are misreading and distorting the record of these proceedings.
Applicants now have alleged both in the instant motion and at the Seventh Prehearing Conference of October 31, 1975 (Tr. p. 1323-29) that the Board's procedures in requiring other parties to make available to Applicants upon completion of discovery a " Statement of the Nature of the Case" somehow i
l has been prejudicial to Applicants.
In fact, the procedure 1
1 of the Board in granting Applicants extra relief - relief not I
mandated by NRC rules - by making available to Applicants the e"*dentiary basis upon which opposition parties would j
1 rely in ddressing each issue in controversy set forth in
~Prehearing Conference Order No. 2, was the relief requested by Applicants themselves.
On page 530-531 of the transcript of these nroceedings, Applicants' counsel, at lines 10-14, requested the Board to
- E.g., Ohio Edison and Pennsylvania Power Ccapany Motion for Additional Discovery of October 30, 1975
4-require other parties in this proceeding to " submit their definition of the me ters in issue with that ultimate precision they claim they can't make at this time" at scme reasonable time following the closing of discovery (See also, Tr. p. 530, line 24 and p. 531, line 1).
cn page 531 of the transcript, Applicants' counsel requested that the Statement of the Nature of the Case should be filed not as a part of the pretrial statement of the other parties, but prior to the filing of l
written testimony.
The asserted need for this greater defini-tion of the issaes was to enable Applicants to better prepare their own testimony on those matters.
The matter was further explored at the Fourth Frehearing Conference held on April 21, 1975 and, once again, the Board granted the relief requested by Applicants with respect to having the other parties " simply delineate the matters they seek to place in controversy" (Tr. p. 1065, lines 8-9).
Counsel for Applicants conceded that by Applicants' own read-ing of the rules, a final statement of issues to be controverted should be discussed at a prehearing conference following the i
completion of discovery.
i Even more expressly on page 1063 of the transcript, Applicants' counsel states:
- "May I make this suggestion, Mr. Chairman?
May I make a suggestion that, sometime price to the Y
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5-15th of August, sufficient so that we can review dt and respond if appropriate, that the other side answer the interrogatories or otherwise delineate the issues?"
Although the filing date subsequently was moved from August 15 to September 5, it is uncontestable that the procedures followed were directly responsive to and in accord with proposals advanced by or agreed to by Applicants.
See Prehearing Conference Order No. 4 dated April 29, 1975.*
'de see no basis for Applicants' assertion that they have been prejudiced or their rights abused by the grant of the very relief they requested.**
Continuing the distortion of the record, Applicants, in footnote four of their Motion of Nevesber 4, 1975, contend that they "have been forced by the plant schedules to forego objecting to the infringement" of their due process rights Although Applicants have posed objections to some prehear-ing c'enference orders, they filed none with respect to paragraph two of the Prehearing Conference Order No. 4
- Applicants may consider themselves dissatisfied with the responses contained in the September 5 filing, but this is a far different matter frc= attacking the procedure by which they were put on specific notice as to how evidence obtained through discovery would relate'to each issue in controversy.
As to the adequacy of the September 5 filing, the 3 card has already ruled that these filings meet the requirements established by the Board.
Applicants new have submitted to other parties discovery requests addressed to certain of the evidentiary contentions se cut in the September 5 filings.
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A 6-relating to their claim that the ten-day period between the filing of other parties' prehearing briefs and the commencement of evidentiary hearing is too short to allow Applicants fair opportunity to prepare for hearing.
This representation is flatly incorrect and inconsistent with the record.
First, the assertions of Applicants' footnote are contra-dicted by reference to Applicarts' filings of July 12, 1974 and August 5, 1974.
The July 12, 1974 filing entitled "Appli-cants' Proposed Expedited Hearing Schedule" correctly recites that at the June 25, 1974 prehearing conference, the questien of scheduling activities for completion prior to commencenent of hearing was discussed extensively.
See Tr. p. 539-40.
Shcrtly after the conference,* the parties submitted propesals for the ccmpletion of necessary prehearing events.
Applicants' proposal was that there be an interval of approximately 18 days between the filing of pretrial briefs and the ecmmence-ment of hearing.*d After all interested parties had submitted proposals for the completion of pretrial events, the City of It was the Applicants who requested a slight delay in the submittal of their schedule proposals (Tr. p. 539).
- We note that Applicants' proposed schedule allowed a period of apprcximately two and a half weeks for the con-pletion of the entire hearing.
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7-Cleveland filed objections to certain of the dates and Applicants responded on August 5, 1974 setting forth their views with respect to proposed schedule changes.
Thus, it is apparent that Applicancs had ample opportunity to object to the' schedule (indeed, their views were considered and in general accepted by the Board in the formulation of the proposed schedule), and further took advantage of their procedural rights to object or to respond to the objections of others.
Second, the representations in footnote four are inaccurate because on September 5, 1975, at page 1270 of the transcript, Applicants' counsel specifically did object to the asserted brevity of the period between filing of pretrial briefs and commencement of hearings.
Discussion continued for several pages in the record and indeed the objection was reiterated i
on page 1273 of the transcript by yet another counsel for I
Applicants.
Thus, the assertion that Applicants' due process i
rights somehow have been abridged because they had to forego objection is extremely disturbing.
Further, the concluding sentence of footnote four stating that Applicants' due process rights have been infringed through foregoing of objections in other aspects of these proceedings
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is hereby rejected.
First, it is impermissible to base such charges on vague or unstated allegations.
Second, with b #%
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s 8-respect to the sole allegation made in support of Applicants' charge of due process deprivation, we have just pointed out that Applicants are completely in error in making such assertion.
The error was known to Applicants since Applicants were directly involved in formulating and proposing the prehearing schedule and in objection to those dates with which it was in disagreement.
Counsel for Applicants are cautioned against the practice of setting forth assertions blatantly inconsistent with the record of this proceeding.
This is not to say that arguments presented in strong terms and vigorously presented objections to rulings or proposed rulings of the Board are inappropriate.
The overall excellence performance of Applicants' counsel in these proceedings (of which the Board takes recognition) should not be obscured by what we hope is a one time careless reading of the record.
As noted, the date changes incorporated in th's memorandum were nade available to the parties by telephone conference call of November 5, 1975 so that, despite the f
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later filing of this memorandum, the parties had ample notice of the Board's decision with respect to date changes.
ATOMIC SAFETY AND LICENSING E0ARD i
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J pd M. Frysiak,/ Member 1/
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Shiin, Member
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Douglas V. Rig.T.
, Chairman Dated at 3ethesda, Maryland this 20th day of November 1975 i
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o UNITED STATES OF AMERICA NUCLEAR RECULATORY Com!ISSION i
In the Matter of
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THE -TOLEDO EDISON COMPANY, ET AL. )
Docket No. (s) 50-346A CLEVELA,'D ELECTRIC ILLCIII:ATI:G )
59-440A COMPANY
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50-441A
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(Davis-Besse Fuclear Fewer
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Ststion, Unit ::o. 1; Perry
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Nuclear Powe,r Plant, Units 1&2)).
CERTIFICATbOFSERVICE I hereby certify that I have this day served the foregoing document (s) upon cach person desi;nated on the official service list ec= piled by the Of fice of the Secretary of the Cercission in this proceeding in accordance uith the recuirements of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Regulatory Cormission's Rules and Regulations.
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Dated at Washington, D.
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day of / //
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.s UNITED STATCS OF l.:.ZRICA N"C'r'a PIGi LATORY W 'ISSION In the Matter of
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' TOLEDO EDISON COMPANY, ET AL
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Docket No.(s) 50-346A (Davis'Besse Unit 1)
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CLEVELAND ELECTRIC ILLDIINATING
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50-441A
'(Ferry Units 1 and 2)
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TOLEDO EDISCN CC:FANY, ET AL. -'
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50-500A (Davis-Sesse Units 2 and 3)
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50-501A SERVICE LIST Douglas Rigler, Esq., Chair =an Joseph Rutberg, Esq.
Foley, Lardner, No11abaugh & Jacobs Antitrust Counsel 815 Connecticut Avenue, N. W.
Counsel for NRC Staff Washington, D. C.
20026 U. S. Nuclear Regulatory Co= mission Washington', D. C.
20555 Ivan W. Smith. Esq.
Office of Antitrust & Inde=nity Atomic Safety and Licensing Beard Office of Nuclear Reactor Regulation U. S. Nuclear Regula tory Co= mission U. S. Nuclear Regulatory Co= mission Washington, D.
C.
20555 Washington, D. C.
20535 John M. Frysiak, Esc.
Benjamin H. Vogler, Esq.
Atomic Safety and Licensing Board Roy P. Lessy, Jr., Esq.
U. S. Nuclear Regulatory Co= mission Antitrust Counsel Washington, D. C.
20555 Counsel for NkC Staff U. S. Nuclear Regulatory Co==ission Alan S. Rosenthal, Esq., Chairman Washington, D. C.
20555 Atomic Safety and Licensing Appeal Board' Donald H. Hauser, Esq.
U. S. Nuclear Regulatory Commission Victor F. Greenslade, Jr., Esq.
Washington, D. C.
205,55 Cleveland Electric Illuminating Company Mr. Michael C. Farrar P. O. Box 5000 t
Atomic Safety and Licensing Appeal Cleveland, Ohio 4a101 L
Board U. S. Nuclear Regulatory Commission Joseph J. Saunders, Esq., Chief Washington, D. C.
20555 Public Counsel and Legislative Section Richard R. Salzman, Eso.
Antitrust Division j
Atomic Safety and Licensing Appdal U. S. Department of Justice Board Washington, D. C.
20530 U. S. Nuclear Regulatory Commission Washington, D. C.
20355 1
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50-346A,
'40A, -441A, -500A, -501A pags 2 Gerald 'Charco f., Esq.
Honorable Edvard A. Matto Shaw, ?itte:n 2:tts. Tr:' trid :e Asstatant Atterrey Cen2ral and L2dden Chief, Antitrust Section 910 -17th Street, N. W.
30 East Broad Street, 15th Floor Washingten, D. C.
20C06 Colu= bus, Ohio 43215 Lee C. Howley, Esq., Vice President Honorable Deborah P. Highsmith and General Counsel Assistant Attorney General Cleveland Electric Illuminating Antitrust Section Company 30 East Broad Street, 15th-Floor P. O. Box 5000 Columbus,0hio 43215 Cleveland, Ohio, 44101 Honorable Christopher R. Schraff David C. Hjelmfelt, Esq.
Assistant Attorney General r
Michael Oldsk, Esq.
Environmental Law Sectior.
1700 Pennsylvania Avenue, N. W.
351 East Broad Street Washington, D. C.
20006-Columbus, Ohio 43215 Reuben Goldberg, Esq.
Duncan, Brown, Weinberg & Palmer Arnold Fieldman, Esq.
1700 Pennsylvania Avenue, N W.
1700 Pennsylvania Avenue, N. W.
Washington, D. C.
20006 Washington, D. C.
20006 c-John Lansdale. Jr.,' Esq.
Steven M. Charno, Esq.
Cox, Langford & Brown Melvin G. Berger, Esq.
21 Dupont Circle. N. W.
Antitrust Division Washington, D. C.
20036 U. S. Department of Justice Washington, D. C.
20530 Leslie Henry, Esq.
W. Snyder, Esq.
Honorable Thomas E. Kauper Fuller, Henry, Hodge & Snyder Assistant Attorney General 300 Madison Avenue Antitrust Division
-Toledo, Ohio 43604 U. S. Department of Justice Washington, D. C.
20530 Mr. George B. Crosby Director of Utilities John C. Engle, President Piqua, Ohio 45350 AMP-0, Inc.
Municipt1 Building William M. Lewis, Jr.
20 High Street W. M. Lewis & Associates Hamilton, Ohio 45012 P. O. Box 1383 Portsmouth, Ohio 45662 i
Honorable Richard M. Firestone Assistant Attorney General Robert D. Hart, Esq.
Antitrust Section Assistant Law Director 30 East Broad Street,'15th Floor City Hall
.g Columbus, Ohio 43215 Cleveland, Ohio 44114 Honorable William-J. Brown Anthony G. Aiuvalasit, Jr., Esq.
Attorney General Antitrust Division State of Ohio Department of Justice Columbus, Ohio 43215 P. O. Box 7513 Washington, D. C.
20044 1
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50-34eA, -140 A,
/ ' 1 A, -300A, -301A Page 3 Susan 3. ~*r:1ert. E;:.
Jcseph A. RLesar. Jr.. Esq.
Antitra:t !
- tist:n Lee A. Rau, Esq.
Department cf Justice Reed, Smith, Shaw & McClay 727 New Federst E.211 ding Madison Building, Suita 404 i
2140 Easd :iinth Streat Washington, D. C.
20C05 Cleveland, Ohio 44199 Terence H. Benbow, Esq.
David M. Olds, Esq.
A. Edward Grashof, Esq.
Reed, Smith, Shaw and McClay Winthrop, Stimson, Putnam P
- 0. Box 2009 and Roberts Pittsburgh, Pennsylvania 15230 40 gall Street New York, New York 10005 Thomas A. Kayuha, Esq.
47 North Main Street Ruth G. Bell, Esq.
Akron, Ohio 44308 Janet R. Urban, Esq.
Antitrust Division Perry Jublic Library Department of Justice 3753 dbin Street Washington, D. C.
20530 Perry, Ohio 44081 Director Ida Rupp Public Library 301 Madison Street Port Clinton, Ohio 43452 I
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