ML19319C528
| ML19319C528 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 07/17/1974 |
| From: | Goldberg R CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002190959 | |
| Download: ML19319C528 (8) | |
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UNITED STATES OF AMERICA ATOMIC ENERGY 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
-346A The Cleveland Electric Iliuminating
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Company
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(Davis-Besse Nuclear Power Station)
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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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MOTION OF CITY OF CLEVELAND FOR LEAVE TO FILE REPLY TO PROPOSED HEARING SCHEDULES SUBMITTED BY APPLICANTS, STAFF AND DEPARTMENT OF JUSTICE The Atomic Safety and Licensing Board at the Prehearing Con-ference held on June 25, 1974, requested the parties to offer proposed procedural dates for the consolidated Davis-Besse and Perry cases.
The Board made no provision for comments by the I arties respecting the dates proposed by other parties to the proceeding. City of Cleveland (Cleveland) hereby requests leave to file the attached reply to Applicant's Proposed Expedited Hearing Schedule.
The dates set for various procedural events in these matters is of serious importance. While Cleveland recognizes the desirability of expediting this procedure, it also recognizes that too short a schedule 8 0 02190 9g g
s will prevent the full factual development of the case required for pro-tection of all the parties and for the advancement of the public interest.
This Board can only carry out its important duties when it has access to a full and complete hearing record.
n. a t,th In its Reply, Cleveland will demonstrate that dwees proposed by
. Applicants, Staff and Department of Justice do not allow adequate time for discovery and formation of writ. en testimony.
WHEREFORE, Cleveland prays that it be granted leave to file the attached reply to Applicants' Proposed Expedited Hearing Schedule.
Re,spectfully submitted,
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' % d C % b a h i' Reuben Goldbeirg i,
David C. Hjelmfelt 1700 Pennsylvania Avenue, N. W.
Washington, D. C.
20006 Telephone (202) 659-2333 Herbert R. Whiting Director of Law Robert D. Hart Assistant Director of Law City of Cleveland City Hall Cleveland, Ohio 44114 Telephone (216) 694-2717 July 17, 1974 2
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UNITED STATES OF AMERICA ATOMIC ENERGY 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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'ic Illuminating
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Docket Nos. 50-440A The Cle.
a
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and 50-441A Comp. -
(Perry h.;:
L nits 1 and 2)
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REPLY OF THE CITY OF CLEVELAND TO PROPOSED HEARING SCHEDULES SUBMITTED BY APPLICANTS, STAFF AND DEPARTMENT OF JUSTICE City of Cleveland (Cleveland) is as desirous of an early completion of these proceedings as are Applicants, Staff and the Department of Justice.
To that end, Cleveland has submitted an expedited schedule of procedural dates that would move a complex antitrust case from the start of discovery to the start of hearing in less than one year -- a schedule almost unknown in antitrust law and unmatched by other AEC $105c cases. Cleveland sub-mits that the schedule which it has submitted is the only realistic schedule proposed.
Applicants, Staff and Department of Justice have submitted schedules which would be impracticable even if all of the parties and all of the witnesses and all of the counsel involved had only this proceeding to attend to.
For 1
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example, even assuming there are no objections to any discovery requests, the Applicants' schedule allows only 30 days from the last day for discovery requests to the last day to responding to those requests. Merely to state it demonstrates its absurdity. Experience gained in other AEC cases clearly shows that one month is inadequate for documentary discovery. In the Farley case, for example, more than six months was allowed documentary dis cove ry.
The bulk of the documents were produced during the last few days of the allowed period. Additional documents followed the close of discovery as did supplemental discovery requests. Cleveland proposes a short 21/2 months for the completion of documentary discovery.
The purpose of utilizing documentary discovery and interrogatories prior to engaging in depositions is to_ permit the parties to utilize the know-ledge so gained to take more efficient, more effective and more relevant depositions. Obviously, this requires that the parties first have an oppor-tunity to study the documents produced prior to the commencement of depo sitions. Applicants allow only 30 days for depositions commencing the ~ day after completion of the first phase of discovery. When one con-siders that most documents are produced near the close of the discovery period it is obvious that the parties will be unable to make effective use of the documents during' depositions. Referring again to the Farley case, there the original two month period allowed for depositions was extended to three months. - Even with the one month extension parties were for ced to take back-to-back depositions of numerous witnesses all scheduled within a one week period. Cleveland proposes a three month period for depo:itions 2
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which is effectively a 21/2 month period when allowance is made :or the intervening holidays.
Applicants permit only 20 days for ' e Department of Justice, 4
Staff and Interve 2 ors to prepare, reproduce and serve written testimony and documents. Considering the complexity of the matter that period is woefully. inadequate. A similarly inadequate 19 day period is proposed for Applicants to prepare, reproduce and serve their responsive testimony and exhibits. Under the circumstances of this case, the Board would be ill-served by testimony prepared under such time constraints. Applicants in the Farley case recently requested an additional 30 days for a total of sixty days in which to prepare their responsive testimony and exhibits.
In connection with the preparation of testimony, time must be allowed for transcription of the depositions so that they can be studied. The schedules
. proposed by Staff, the Department of Justice and Applicants fail to give adequate consideration to this matter.
Trial briefs will fill an important role in guiding the Board's under-standing of the development of the facts and theories of the parties. To be helpiul, they must be carefully prepared. The haste equired to prepare such a document in the two weeks proposed by Applicant could only result in a shoddy product of little value to the Board.
In short, Applicants hsve proposed a " defendants" schedule designed to fe reclose discovery and preclude full development of the record. Staff's proposed schedule is even more unrealistic than that proposed by Applicants, i
The Department of Justice proposed schedule, while better thar Staff's and j
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m Applicants', is clearly inadequate in many respects including the short 1 1/2.-onth period allowed for depositions and the ', days allowed for Applicant to prepare its responsive testimony and exhibits. Cleveland submits that its proposed time schedule is the only one that comports with fuli litigation of Cleveland's claims by all parties. In its decision docketed June 11, 1974, in the Beaver Valley case, the Atomic Safety and Licensing Appeal Board relied heavily on Cleveland's right to a full hear-ing in Davis-Besse and Perry in denying Cleveland's petition to intervene.
Similarly, this Board in denying Cleveland's petition to intervene in Beaver Valley (Final Memorandum and Order on Petitions to Intervene and P.equests for Hearing, docketed April 16, 1974) said (Mimeo. p. 7-8):
Furthermore, a key point in assessing the weight to be given to a question of untimeliness is Cleveland's ability to protect its interests without a Beaver Valley hearing. The City of Cleveland has teen. admitted to the Davis-Besse and Perry proceeilings which involve the same factual and legal issues that Cleveland seeks to litigate in B_eaver Valley. (footnote omitted)
Cleveland submits that imposition of procedural dates advocated by Applicants, Staff or the Department of Justice would preclude Cleveluid from having an opportunity to fully develop and present its case. Indeed a hearing on Applicants' " defendants" schedule could be no more than a sham.
WHEREFORE, Cleveland requests that the Board adopt its proposed procedural dates.
Respectfully submitted, CITY,OF CLEVELAND, OHIO A 11eLhurh By
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Reuben Goldberg
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4 Its Attorney b
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~ Reuben Go* 2 erg David C. Hjelmfelt 1700 Pennsylvania Avenue, N. W.
Washington, D. C.
20006-Telephone (202) 659-2333 Herbert R. Whiting Director of Law Roba.? D. Hart Assistant Director of Law City of Cleveland City Hall Cleveland, Ohio 44114 Telephone (216) 694-2717 July 17, 1974 f
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
The Toledo Edison Company
)
Docket No. 50-346A The Cleveland Electric Illuminating
)
Company
)
(Davis-Besse Nuclear Power Station)
)
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The Cleveland Electric Illuminating
)
Docket Nos. 50-440A Company, et al.
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and 50-441A (Perry Plant, Units 1 and 2)
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Certificate of Service I hereby certify that service of the foregoing " Motion of City of Cleveland for Leave to File Reply to Proposed Hearing Schedules Sub-mitted by Applicants, Staff and Department of Justice" and " Reply of the City of Cleveland to Proposed Hearing Schedules Submitted by Applicants, Staff and Department of Justice" has been made on the following parties listed on the attachmer' hereto this 17th day of July, 1974, by depositing copies thereof in the United States mail, first class i
or air mail, postage prepaid.
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Reuben Goldberg
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Attachment
rs ATTACHMENT
- Atomic Safety and Licensing Board Joseph J. Saunders, Esq.
U.S. Atomic Energy Commission Steven Charno, Esq.
Washington, D.C.
20545 Antitrust Division Department of Justice Mr. Frank W. Karas, Chief Washington, D. C.
20530 Public Proceedings Branch Office of the Secretary Abraham Braitman, Esq.
U. S. Atomic Energy Commission Office of Antitrust and Indemnity Washington, D. C.
20545 U. S. Atomic Energy Commission Washington, D. C.
20545 John B. Farmakides, Esq.
Chairman William T. Clabault, Esq.
Atomic Safety and Licensing Board David A. Leckie, Esq.
U. S. Atomic Energy Commiss.on Department of Justice Washington, D. C.
20545 Post Office Box 7513 Washington, D. C.
20044 John H. Brebbia, Esq.
Atomic Safety and Licensing Board Gerald Charnoff, Esq.
Alston, Miller & Gaines Shaw, l'ittman, Potts & Trowbridge 1776 K Street, N. W.
910 - 17th Street, N. W.
Washington, D. C.
20006 Washington, D. C.
20006 Dr. George R.- Hall Frank R. Clokey, Esq.
Atomic Safety and Licensing Board Special Assistant Attorney General U. S. Atomic Energy Commission Room 219 - Towne House Apartments Washington, D. C.
20545 Harrisburg, Pennsylvania 17105 Benjamin H. Vogler, Esq.
Thomas J. Munsch, Jr., Esq.
Joseph Rutberg, Esq.
General Attorney Office of the General Counsel Duquesne Light Comptny 435 Sixth Avenue Regulation U. S. Atomic Energy Commission Pittsburgh, Pennsylvania 15219 Washington, D. C.
20545 David McNeil Olds, Esq.
Robert J. Verdisco, Esq.
John McN. Cramer, Esq.
Office of the General Counsel Reed, Smith, Shaw & McClay Regulation 747 Union Trust Building U. S. Atomic Energy Commission Pittsburgh, Pennsylvania 15219 Washington, D. C.
20545 John R. White, Esq.
Jon T. B rown, Esq.
Vice President and General Counsel Duncan, B rown, Weinberg & Palmer Ohio Edison Company Suite 777 47 North Main Street 1700 Pennsylvania Avenue, N. W.
Akron, Ohio 44308 Washington, D. C.. 20006 i
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m Page 2 ATTACHMENT (Continued)
Pennsylvania Power Company E
1 East Washington Street Ncus Castle, Pennsylvanis 16103 Leslie. Henry, Esq.
Fuller, Henry, Hodge & Snyder 300 Madison Avenue Toledo, Ohio 43604 Donald H. Hauser, Esq.
The Cleveland Electric Illuminating Co.
Post Office Box 5000 Cicveland, Ohio 44101 John Lansdale, Jr., Esq.
C ox, Langford & Brown 21 Dupont Circle, N. W.
Washington, D. C.
20036 Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeals Board U. S. Atomic Energy Commission Washington, D. C.
20545 Dr. John H. Buck Atomic Safety and Licensing Appeals Board U. S. Atomic Energy Commission Washington, D. C.
20545 Dr. Lawrence K. Quarles Atomic Safety and Licensing Appeals Board U. S. Atomic Energy Commission Washington, D. C.
20545 C. Raymond Marvin, Esq.
Daborah M. Powell, Esq.
Antitrust Section 8 East Long Street Suite 510 Columbus, Ohio 43215
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