ML19319C575

Objections to Prehearing Conference Order 2.Certificate of Svc Encl

ML19319C575
Person / Time
Site:	Davis Besse, Perry
Issue date:	07/31/1974
From:	Goldberg R, Hjelmfelt D, Njelmeelt D CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002191011
Download: ML19319C575 (7)

Text

_ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

7,pf -

UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and LicensMg Board In the Matter of )

)

The Toledo Edison Company ) Docket N . 50-346A The Cleveland Electric Illuminating ) ~

Company )

(Davis-Besse Nuclear Power Station))

)

The Cleveland Electric Illuminating ) Docket Nos. 50-440A Company ) and 50-441A (Perry Nuclear Power Plant, Units )

l and 2) )

OBJECTIONS OF THE CITY OF CLEVEL/.ND TO PREHEARING CONFERENCE ORDER NO. 2 Pursuant to $2. 751(d) of the Commission's Rules of Practice, the City of Cleveland (Cleveland) objects to so much of the Board's Prehearing Conference Order No. 2 as states that "the i3oard considers the contentions to relate primarily to structure, and only inc! tally to conduct," and fails 4

to provide for an end to the period for the production of documents prior co the commencement of the period for discovery by deposition.

The purpose of utilizing documentary discovery and interrogatories i

prior to engaging in depositions is to permit the parties to utilize the know- l ledge so gained to take more efficient, more effective and more relevant depo sitions. Indeed, the documents produced frequently identify the persons most suitable fo r deposing. In many instances, the identity of persons having I

8002191 0// /$f

particular knowledge is unknown to other parties until documents produced are reviewed. Obviously, this requires that the parties first have an opportunity to study the documents produced prior to the commencement 1/

of depositions.-

Under the schedule established by the Board, all discovery begins 2/

on August 1,1974, and runs concurrently through December 15, 1974.-

Counsel's experience in the Farley case, in which one period was established for doc'umentary discovery, followed by a second period for depositions, teaches that the bulk of all documents produced in response to discovery requests are produced during the closing days of the discove,ry period. One might expect this to be the case here where there is even greater incentive to withhold production until the last day. Why will any partt produce docu-ments prior to December 15, when the result will be to prepare his adversary for depositions. For the foregoing reasons, Cleveland urges the roard to r2odify its Prehearing Order No. 2 to establish separate rounds of discovery for the production of documents and for the taking of depositions.

-1/ The purpose of Clevelandi s Motion For Leave To File Reply To Pro-posed Hearing Schedules Submitted By Applicants, Staff and Department Of Justice, was to demonstrate to the Board certain realities of the discovery process which must be used as criteria for the design of a reasonable schedule of procedural events. The Board refers to Cleve-land's motion as untimely. We respectfully submit this characterization of the motion is not appropriate. Since no provision was made for.com-ment on schedules submitted by the other parties, Cleveland's motion was not to submit an untimely brief in support of its proposed schedule but as a request to the Board to permit a reply for which no provision had been 1 made. Section 2.730 provides for the filing of motions by the parties.

-2/

Decembe r 15, 1974, is a Sunday.

i 2 l

,. . m 3

Cleveland believes that " conduct" of the Applicants is an important issue in this proceeding and was fully and fairly raised by the City's pleadings filed in both the Davis-Besse and Perry cases.

Cleveland cited numerous instances of unfair trade practices and anti-competitive activities of Applicant CEI in the Cleveland retail market.

Full development of these and other activities will demonstrate that CEI has acted to maintain and extend its position of dominance and has used its position of dominance to hinder the City's ability to cornpete. Mo re-over, the City will show that CEI has continually acted to prevent the City from improving the reliability of its bulk power supply while at the same time joining with the other Applicants to develop numerous %rge scale bulk power generating stations which insure its ability to offer reliable electric service at retail in direct competition with the City of Cleveland.

Further, Cleveland will fully develop the activities engaged in by CEI and the other Applicants designed to deny Cleveland access to alternate sources of bulk power supply. These activities will include CEI's repeated refusal to wheel third party power such as the 30 mw of PASNY power much 1 I

needed by the people of Cleveland as well as by the City's electric system. I l

Cleveland submits that conduct of the Applicants is very much an issue in these proceedings. If Cleveland is to be accorded a full hearing on the factual and legal issues it has raised, it must be accorded an opportunity to engage in full discovery. With regard to Cleveland's right to make a full l presentation of the legal and factual issues it has raised, Cleveland notes that in its decision docketed June 11, 1974, in the Beaver Valley case, the ,

1 I

3

Atomic Safety and Licensing Board relied heavily on Cleveland's right to a full hearing 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 Requests 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 been admitted to the Davis-Besse and Perry ,

proceedings which ir.volve the same factual and legal issues that Cleveland seeks to litigate in i Beaver Valley. " (footnote omitted)

WHEREFORE, Cleveland requests that the Board modify its Prehearing Conference Order No. 2 to create separate rounds of discovery for the produc-tion of documents and the taking of depositions and to eliminate the language in the Order which indicates that " activities" of the Applicants are only of in- j cidental impo rtance.

Re pectfully submitted, sb Mc uw Reuben GoMber David C. Hjelmfelt l 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 31, 1974 4

, . . M 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))

)

The Cleveland Electric Illuminating ) Docket Nos. 50-440A Company ) and 50-441A (Perry Nuclear Power Plant, Units )

1 and 2) )

Certificate of Service I hereby certify that service of the foregoing " Objections of the City of Cleveland to Prehearing Conference Order No. 2", has been made on the following parties listed on the attachment hereto this 31st day of July,1974, by depositing copies thereof in the United States mail, first class or air mail, postage prepaid, i k41 /WW

' Reuben Goldberg /

Attachment

ATTACHMENT A+omic 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 Commission Depar* ment 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, Pittman, Potts & Trowbridge 1776 K Street, N. W. 910 - 17th Street, N. W.

Washington, D. C. 20006 W ashington, 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 Company Regulation 435 Sixth Avenue 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. 7 ice President and General Counsel Duncan, Brown, Weinberg & Palmer Ohio Edison Company Suite 777 47 North hiain Street 1700 Pennsylvania Avenue, N. W. Akron, Ohio 44308 Washington, D. C. 20006

' Page 2 ATTACHMENT (Continued)

Pennsylvania Power Company 1 East Washington Street New Castle, Pennsylvania 16103 Leslie Henry, Esq.

Fuller, Henry, Hodge & Snyder 300 Madison Avenue Toledo, Ohio 43604 Donald H. Hauser, Esq.

The Cleveland Electric 111uminating Co.

Post Office Box 5000 Cleveland,' 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. G. 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.

Deborah M. Powell, Esq.

Antitrust Section  ;

8 East Long Street ,

l Suite 510 l Columbus, Ohio 43215 l

. I