ML19319C580
| ML19319C580 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 09/09/1974 |
| From: | Dewey L, Vogler B US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002191017 | |
| Download: ML19319C580 (9) | |
Text
- -
.=.
qq ns@
i 6S e
.VilITED STATES OF AMERICA ATOMIC EllERGY C0illISSICli BEFORE THE ATOMIC SAFETY AND LICEllSIt'G BOARD In the l'atter of
)
l' THE TOLED0' EDIS0ii COMPAHY and
.)
-Q THE CLEVELAliD ELECTRIC ILLUMIflATING )
AEC Docket
.~50-346A C0i1 patly
)
(Davis-BesseI:uclear'PowerStation )
i
)
THE CLEVELAliD ELECTRIC ILLU!11NATING )
)
AEC Docket t!os. S0-440A
. (Perry Nuclear Pcwer Plant,
)
50-441A Units 1 and 2).
)
4
- 1. STAFF'S OBJECTIONS TO APFLICAtlTS' ItiTERR0GATORIES AND DOCUi! Erit REQUEST TO THE REGULATORY STAFF
~
- 2. STAFF'S OBJECTIONS TO CERTAIN DISCOVERY REQUESTS AUD INTERRCGATORIES BY APPLICANT Ai!D INTERVENOR, CITY OF CLEVELAT:0, DIRECTED TO OTHER PARTIES I.
STAFF'S OGJECTICt:S TO APPLICAI!TS' IllITIAL INTERRCGATCRIES AII0 REQUEST FOR 00CUMEilTS TO STAFF A.
Privileged Informaticn Pursuant to 10 CFR Section 2.7401/ of the Commission's Rules of Practice, Staff objects to applicants' interrogatories directed tcwcrd documents and informaticn concerning AEC investigational activitics and reports on grounds that much of this information is privileged.2I 1/ See also Consumers Power Ccmpany.(itidiand Plants, Units 1 and 2),
~
RAI-74-7, pp. 4-6.
-2/ Certainly the requested inforr.ation is immune from discovery to the extent that it includes lega~1 advice rendered by government atterneys.
i Similarly, inter-agency or intra-agency memorandums or letters prepared by attorneys would not be available by law to a party. The work product-of agency staff members may also be privileged to the extent such dis-closure wculd ir.$cde an agency's policy making process and adversely affect the working habits of staff cambers.
D*O%
o o El 8002191oq dpm,[g-I _
J]
. klrd a 4
o
, Whercas Staff at present makes the general assertion of privilege with respect to such information, Staff will,nevertheless carry out applicants' request by identifying the parties and subject matter for those documents to which Staff asserts privilege.
In addition, at that time Staff will furnish the legal grounds with appropriate case citations for any docu-ments or information that we believe must be withheld.
B.
Relevancy Staff notes that applicants' interrogatories have failed to meet the requirements of 10 CFR s2.744(a) which provides that, "The request shall set forth the records or documents requested either by individual item or category, and shall describe each item or category with reasonable particularity and shall state why that record or document is relevant to the proceedinc."
(Emphasis added). Accordingly, Staff objects to this request until applicants cone forward and state their canplete reascns for seeking such informaticn.
In this regard, it is not apparent to Staff why interrogatories one through four concerning possible investigational activities of Staff are relevant to this p.cceeding.
Staff specifically objects to the relevancy of applicants' inter-rogatories eight and nine.
Interregatories ei.ght and 9(b) and (c),
referring to costs, tax advantages, interest rates, cost analysis, and rate of return information are not relevant. The costs or profitability of electric systems are not in issue.
Even if the operations of the 1 -
)
. smaller utilities are presently profitable, or for that matter even if i
f i
they are more profitable than applicants' cperations, this should not be a factor in this proceeding. A similar' pleading by a defendant has been considered and rejected by the Sunreme Court in the landmark antitrust case of Utah Pie Co. v. Continental Baking Co., 386 U.S. 685 (1967).
Similarly, interrogatory 9(a) which refers to lccal laws, i
ordinances or other legal restrictions which might effect coordination and joint-cunership in facilities between electric utilities is not relevant, since state and local laws can usually be changed at any time.
C.
Legal Theories and the Furnishing nf Evidentiary flaterials Staff notes that many of applicants' interrogatories call for a descripticn of Staff's leoal thcory and a furnishing of certain evidentiary materials upon which Staff will rely to establish its case in chief. Such information will be furnished applicants in keeping with the principle of p
10 CFR 52.740(b)(2) which provides that parties are entitled to trial pre-i paration materials "...only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the
. substantial equivalent of the material by other means." Since Staff has not yet received discovery from applicants and third parties it would be premature to furnish complete information at this time. Once the applicants have established this need, Staff will answer these interrogatories
~
and update them.
c
. II. STAFF'S OBJECTIONS T0 CERTAIN DISCOVERY REQUESTS AND INTERR0GATORIES BY APPLICANT AND INTERVENOR, CITY OF CLEVELAND, DIRECTED TO OTHER PARTIES
~
Pursuant to 10 CFR Section 2.740 of the Commission's Rules of Practice, Staff also objects to certain discovery requests and interrogatories by applicants and intervenor, City of Cleveland, and moves that such requests and interrogatories be denied.
Staff is aware that the parties to whcm discovery and interrogatories are directed are in the best position to make specific cbjections; however, Staff takes this opportunity to coject to several broad areas of discovery which clearly are not relevant to this proceeding.
A.
Costs and Rates of Return In certain interrogatory and document regsests both applicant and intervenor request costs, cost analysis, rates and rates of return. As described in Section I, Staff submits that such infonnation is not relevant and will only serve to unduly burden the record in this proceeding.
B.
Dates Before January 1, 1964 Staff objects to the extended period of tire ence' assed in some Lof the discovery requests. Documents and information dating as far back as 1948 have been requested. However, most requested documents are requested for time perieds as far back as January 1,1960, a period of over 14 years.
It can reasonably be anticipated that_this extended type of discovery will add many months to.the pre-trial proceeding and will
-a,
- result in the record herein being deluged with documents at the trial itself.
Staff ccntends that all that is necessary in this proceeding is an analysis of the present situation in the Ohio area.
Staff submits that a reasonable time frame for document discovery should not exceed a period of 10 years, to wit, January 1,1964, unless the party so requesting information for a longer period can justify such a request.
C.
Retail Ccmcetition The Staff is well aware that due to the City's position, vis-a-vis, the applicant, that applicant's dcminance will affect retail conpetition between the parties. However, Staff objects to that discovery and those interrogatories that relate to the retail market, including specific acts, practices or conduct by any party.
A full exposition of the wholesale market will enable the Scard and the Ccnmission to obtain a clear understanding of the cccpetitive situation in the relevant markat and order such relief as may be neces:ary. Any relief so ordered while dealing with the 1.holesale level will obvicusly have an impact on retail competition. Thus, censideration of the retail market will not further the purpose of this proceeding and will undul; burden the Board and the parties with unnecessary information and paperwork thereby delaying the
. proceeding unnecessarily.
Respectfully submitted, 4,
6.s rt V
k fr$
h Benjamin H. Vogler Assistant Antitrust Ccunsel for AEC Regulatory Staff Q'
c.4 GeQ
- Lc4 Lee Scott Dewey Counsel for AEC Regulatory Staff Dated at Bethesda, Maryland tilis 9th day of September 1974.
I
t UNITED STATES OF AMERICA ATOMIC EllERGY COMMISSI0ft BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
THE TOLEDO EDIS0tl COMPA1Y and
)
THE CLEVELAtlD ELECTRIC ILLUMINATING )
AEC Docket No. 50-345A COMPAtlY
)
(Davis-Besse Nuclear Power Station) )
)
THE CLEVELAND ELECTRIC ILLUMIflATIllG )
)
AEC Docket Nos. 50-440A (Perry Huelear Power Plant,
)
50-441A Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of: 1. STAFF'S OCJECTIONS TO APPLICAtlTS' IllTERROGATORIES AND 00CUMENT REQUEST TO THE REG'JLATORY STAFF, 2. STAFF'S OBJECTICliS TO CERTAIN DISCOVERY REQUESTS AND IllTERR0GATORIES BY APPLICANT 1
AND INTERVENOR, CITY OF CLEVELAND, DIRECTED TO OTHER PARTIES, dated September 9,1974, in the captioned matter, have been served upon the follo'. ting by deposit in the United States mail, first class or air mail, this 9th day of September 17/4:
i John B. Farmakides, Esq., Chairman Docketing and Service Section
. Atomic Safety and Licensing Board Office of the Secretary U. S. Atomic Energy Commission U. S. Atomic Energy Ccmmission Washington, D. C. 20545 Washingten, D. C.
20545
. John H. Brebbia, Esq.
Joseph J. Saunders, Esq.
Atomic Safety and Licensing Board Steven Charno, Esq.
Alston, Miller & Gaines Antitrust Division 1776 K Street, N. W. -
Department of Justice Washington, D. C. 20006 Washington, D. C.
20530 Dr. George R. Hall Reuben Goldberg, Esq.
Atcmic Safety and Licensing Board David C. Hjelmfelt, Esq.
U. S. Atomic Energy Commission 1700 Pennsylvania Avenue, N. W.
Washingten, D. C. 20545 Washington, D. C.
20006-Atomic Safety and Licensing Frank R. Clokey, Esq.
Board Panel Special Assistant Attorney General U. S. Atomic Energy Commission Room 219 Towne House Apartments Washington, D. C. 20545 Harrisburg, Pennsylvania 17105 John Lansdale, Esq.
Cox, Langford & Srown 21 Dupont Circle, N. W.
Washington, D.C. 20036
_ Herbert R. Whiting, Director C. Raymond Marvin, Esq.
Assistant Attorney General Robert D. Hart, Esq.
Department of Law Chief, Antitrust Section 1201 Lakeside Avenue 8 East Long Street Cleveland, Ohio 44114
' Columbus, Ohio 43215 John C. Engle, President George Chuplis AMP-0. Inc.
Commissioner of Light & Power Municipal Building City of Cleveland 20 High Street 1201 Lakeside Avenue Hanilton, Ohio 45012 Cleveland, Ohio 44114 George B. Crosby Director of Utilities Deborah T1. PoweH, Esq.
Piqua, Ohio 45350 Assistant Attorney General Antitrust Section Donald H. Hauser, Esq.
8 East Long Street Managing Attorney Suite 510 The Cleveland Electric Columbus, Ohio 43215 Illuminating Company 55 Public Square Christopher R. Schraff, Esq.
Cleveland, Chio 44101 Assistant Attorney General Environmental Law Section Leslie Henry, Esq.
361 East Broad Street, 8th Floor Fuller, Henry, Hodge & Snyder Columbus, Ohio a3215 300 Madison Avenue Tolado, Ohio 43604 fir. Raymond Kudukis, Director of Public Utilities John R. White, Esq.
City of Cleveland Executive Vice President 1201 Lakesida Avenue Ohio Edison Company Cleveland, Chio 44114 47 tlorth Main Street Akron, Ohio 44308 Gerald Charnoff, Esq.
Brad Reynolds, Esq.
Thomas J..'tunsch, Esq.
Shaw, Pittman, Potts S Trowbridge General Attorney 910-17th Street,fl. W.
Duquesne Light Company Washington, D. C.
20006 435 Sixth Avenue Pittsburgh, Pennsy:vania 15219 Wallace L. Duncan, Esq.
L,
@[<agep,4;f,s.y,./Q;./-
y //
Jon T. Brown, Esq.
Duncan, Brown, Weinberg & Palmer 1700 Pennsylvania Avenue, 'l.
W.
Washington, D. C.
20006 Benjamin H. Vogler
~-
Assistant a titrust Counsel n
David McNeil Olds for AEC Regulatory Staff Reed, Smith, Shaw &
McClay Union Trust Building Pittsburgh, Pennsylvania 15230
'DISTRIBUTI0t!:
liEG Central Files (Public Document Room)
(Local Public Document Room)
A. Braitman, L:0AI (2)
ASLB J. Rutberg (3)
B. Vogler OGC Fo(mal Files (2)
ASLAB 5) r OGC Reading File OGC Gmtn File Solicitor, GC H. K. Shapar T. Engelhardt
.