ML19319C581
| ML19319C581 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 11/14/1975 |
| From: | Goldberg J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002191018 | |
| Download: ML19319C581 (8) | |
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s UNITED STATES OF AMERICA NUCLEAR REGULATORY C0iC11SSION 83 MV17197.5 > d
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4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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THE TOLED0 EDIS0il COMPANY and NRC Docket Nos THE CLEVELNID ELECTRIC ILLUMINATING )
50-500'A COMPANY
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50-501A (Davis-Besse Nuclear Power Station, )
Units 1, 2 & 3)
THE CLEVELAND ELECTRIC ILLUMINATING )
NRC Docket Nos. 50-440A COMPANY, ET AL.
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50-441A (Perry Nuclear Pcwer Plant,
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Units 1 & 2)
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ANSWER OF NRC STAFF IN OPPOSITION TO CHIO EDISON COMPANY'S AT1D PETINSYLVANIA PO'elER COMPANY'S MOTICN FOR ADDITIONAL DISCOVERY FROM THE DEPART!*ENT OF JUSTICE AND NRC STAFF
.0n October 30, 1975, Ohio Edison Company (Ohio Edison) and Penn-sylvania Power Company (Penn Power), moved, pursuant to 10 C.F.R. 55 2.740(b)(1) and 2.730, for an order requiring the NRC Staff (Staff)
.and the Department of Justice to answer certain interrogatories and produce certain documents. During a conference call of November 5,1975, this Board set November 15, 1975, as the date on which answers to that motion must be filed.
For the reasons set forth below, Staff opposes the motion.
Section 2.740(b)(1) of the Commission's Rules of Practice,10 C.F.R. 52.740(b)(1), provides that:
In [a proceeding on an application for a construction
' pennit or an operating license for a production or utilization facility], no discovery shall be had after the beginning of the prehearing conference held pursuant to 52.752 exccot ucon leave of the cresidino officer upon good cause snewn. LEmpnasis aoded j ll,
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Since the Section.2.752 prehearing conference in this proceeding already has b'een held (on September 18, 1975), this provision now requires Ohio Edison and Penn Power to show good cause before they can be granted leave to have additional discovery. The only " good cause" asserted by Ohio Edison and Penn Power, however, is.that because they were not specifically informed of the allegatiens against them.until September 5,1975, they have not had an opportunity to obtain discovery of the basis for those allega-tions until their present motion of October 30, 1975.
This assertion by Ohio Edison and Penn Power is inaccurate and should not be considered by the Board as a sufficient showing of good cause.
The issues and matters in controversy in this p.roceeding were set forth by the Board on July 25, 1974, in Prehearing Conference Order No. 2.
Immediately therdafter, on August 23, 1974, the Staff and the Department of
~ Justice jointly fil'ed a formal request that Ohio Edison and Penn Power answer interrogatories and produce documents as part of the Stafi's and Department's discovery against those applicants. M nasmuch as Staff's I
present case against Ohio Edison and Penn Po.ter is based primarily en the issues and matters in controversy and on the information received pursuant to the August 23, 1974, discovery request, it cannot fairly be said that the specific allegations contained in the September 5,1975, pleading (Nature of Case to be Presented by NRC Staff) are a surprise to Ohio Edison or Penn Power.
If Joint Request of tne AEC R gulatory Staff and U.S. Department of
. Justice ft.' Interrogatories and 'for Production of Documents by Applicants, August 23,1974.-
.c.
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t Nor can it be said that the recent appearance of additional counsel on behalf of Ohio Edison and Penn Pater is a good reason why those applicants are uninformed as to the charges against them, since those applicants, from the very beginning of this proceeding, have been ably represented by counsel in all phases of discovery, at all meetings, both formal and informal, and at all prehearing conferences.
Furthermore, notwithstanding the appearance of additional counsel for Ohio Edison and Penn Power at the sixth prehearing conference, on September 18, 1975, at which time Staff's September 5th " Mature of the Case" pleading was discussed and amended, 2/ Counsel for Ohio Edison' and Penn Power waited an additional six weeks before filing the present motion for additional discovery.
Thus Ohio Edison and Penn Pcwer waited a total of 8 weeks after'the filing of our " Nature of the Case" pleading before requesting further discovery. No good cause has been shown for this delay.
2/ Staff amended the last sentence of page 5 of its'" Nature of Case to be Presented by NRC Staff," an allegation concerning Chio Edison, to read: "(d) A policy of imposing long-term cap? city restrictions and financino restrictions in contracts or crocosed centracts with wnole-sale customers wnicn trestrictions] nave an aaverse effect on the operation and growth of the systens of said customers in a manner in-consistent with the antitrust laws." [ Underlined words added, bracketed worddeleted.] Transcript at 1206-1208; The Board overruled Counsel for Ohio Edison and Penn Power's objection tt this change. Trans cript.
at 1209.
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In light of the fact that Staff has the initial burden of presenting
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i hearing, Staff is fully committed, in its witnesses at the forthcom ng Any granting terms of manpower, time and effort, to preparing its case.
of leave for additional discovery would only further interrupt and delay this proceeding. 3/ As stated by the Appeal Board in Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALdB-i96, 7 AEC 457, 467 n.15 (April 25,
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1974):
The availability of a period in advance of a hearing or trial for parties to engage in orderly, final pre-paraticn, without a flurry of " midnight" discovery on the eve of the hearing, has been ' ^e;rized as worth-while. JKin v. Georaia Power Cc.
~ F. R. D. 134, 135-36 (N.D. Ga. 1970).
And as stated by this Board in the f09tnote on page 4 of its October 17, 1975, " Memorandum and Order of Board on Motion of the City of Cleveland to Compel Discovery":
We are in agreement with the position set forth by Applicants _ at the prehearing conference of September 18, 1975 that at some point discovery must terminate...
Thus, without a showing of good cause, to. reopen at this late date what could become a major area of dis-covery would not be warranted. [ Emphasis added.]
3/ Staff agrees with applicants tnat the mere preparat causes "the very sort of predictable interruptions which were deemed inappropriate" oy the Appeal Board in Commenwealth Edison Co. (Zion Station, Units 1 & 2) ALAB-196, 7 AEC 457, 467 n.15 (April 25,1974).
See " Applicants' Motien for an Extensien of Time within which to File n.2.
their Prehearing Brief", November 4,1975, p. 3
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In addition to Chio Edison and Pern Power waiting a total of 8 weeks after the filing of our " Nature of the Case'" pleadi.ng before re-questing additional discovery, the above quote shows that applicants argued for terminating discovery almost two weeks after they had received Staff's " Nature of Case" pleading.
Thus Chio Edison and Penn Power are now arguing that (1) while it was the Staff's Sectember 5th " Nature of Case" pleading that created their need for additional discovery, and (2) while, as stated by applicants on Seotember 18th, disc.overy must terminate at some point, (3) still Ohio Edison and Fenn Power should be allowed additional discovery now. Either the time for terminating discovery for all parties has occurred or it has not.
Staff believes that such time has indeed arrived and that Ohio Edison and Penn Power cannot have it one way for them and the 6ther way for everyone else. S/
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4/ Applicants opposed additional discovery over one month ago in
" Applicants' Reply to Motion of the City of Cleveland to.Comcel
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Discovery," October 7,1975.
They opposed additional discovery once again on November 7,1975, in " Applicants' Response to the City of Cleveland's Motion to Reopen Discovery."
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6-In view of the foregoing, Staff opposes Ohio Edison's and Penn Power's motion for additional discovery and respectfully reque'sts the Board to deny the motion.
Respectfully submitted, L.i Jack R. Goldberg Counsel for NRC Staff j-Dated at Bethesda, Maryland this 14th day of November 1975.
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UNITED STATES OF AMERICA ~
NUCLEAR REGULATORY COMMISSION e
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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THE TOLED0 EDISON COMPANY and
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NRC Docket Nos. 50-346A THE CLEVELAND ELECTRIC ILLUMIllATIilG )
50-500A COMPANY
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50-501A (Davis-Besse Nuclear Power Station, )
Units 1, 2 & 3)
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THE CLEVELAND ELECTRIC ILLUMINATIrlG )
NRC Docket Nos. 50-440A CORPANY, ET AL.
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50-441A (Perry Nuclear Power Plant,
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Units 1 & 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of ANSWER OF flRC STAFF IN OPPOSITION TO OHIO EDISON COMPA!!Y'S AND PENilSYLVANIA POWER COMPAtlY'S MOTION FOR ADDITIONAL DISCOVERY FROM THE DEPARTMENT OF JUSTICE AND flRC STAFF, dated November 14, 1975, in the captioned matter, have been served upon the following persons by hand delivery to those persons in the Washington, D.C. area and by mail to all others via the United States mail, first class or airmail, this 14th day of flovember 1975:
Douglas V. Rigler, Esq.
Melvin G. Berger, Esq.
Chairman, Atomic Safet/ and Joseph J. Saunders, Esq.
Licensing Board Steven Charno, Esq.
Foley, Lardner, Hollabaugh Ruth G~reenspan Bell, Esq.
and Jacobs Janet Urban, Esq.
Schanin Building P. O. Box 7513 815 Connecticut Avenue, fl.W.
Washington, D.C.
20044 Washington, D.C.
20006 Docketing and. Service Section Ivan W. Smith, Esq.
Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555
' John Lansdale, Esq.
Mr. John M. Frysiak Cox, Langford & Brown Atomic Safety and Licensing Board 21 Dupont Circle, N.W.
U.S. Nuclear Regulatory Commission
. ashington, D.C.
20036 W
Washington, D.C.
20555 Reuben Goldberg, Esq.
Atomic Safety and Licensing Board David C. Hjelmfelt, Esq.
Panel 1700 Pennsylvania Avenue, N.W.
U.S. Nuclear Regulatory Commission
' Washington, D.C.
20006 Washington, D.C.
20555 o
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-t-Donald H. Ha'.ser, Esq.
James B.' Davis, Director Victor F. Greenslade, Jr.
of Law The Cleveland Electric
' Robert D. Hart, Esq..
Illuminating Company City of Cleveland P. O. Box 5000 213 City Hall Cleveland, Ohio 44101 Cleveland, Ohio 44114 Leslie Henry, Esq.
Joseph A. Rieser, Esq.
Fuller, Henry, Hodge & Snyder Lee A. Rau, Esq.
300 Madison Avenue Reed, Smith, Shaw & McClay Toledo, Ohio 43604 Suite 404 Madison Building, N.W.
Thomas A. Kayuha Washington, D.C.
20005 Executive Vice President Ohio Ediscn Company Alan S. Rosenthal, Chairman 47 North Main Street Atomic Safety and Licensing Akron, OSio 44308 Appeal Board U.S. Nuclear Regulatory Comission Thomas J. Munsch, Esq.
Washington, D.C.
20555 General Attorney Duquesne Light Ccmpany Michael C. Farrar 435 Sixth Avenue Atomic Safety and Licensing Pittsburgh, Pennsylvania 15219 Appeal Board U.S. Nuclear Regulatory Comission Karen H. Adkins, Esq.
Washington, D.C.
205 o RicM*d M. Firestone, Esq.
j Richard S. Salzman Antit ust Section Atomic Safety and Licensing 30 East Broad Street,15th Floor Columbus, Ohio 43215 Appeal Board U.S. Nuclear Regulatory Ccmission Mr. Raymond Kudukis, Director Washington, D.C.
20555 of Public Utilities City of Cleveland Michael M. Briley, Esq.
1201 Lakeside Avenue Roger P. Klee, Esq.
Cleveland, Ohio 44114 Fuller, Henry, Hedge & Snyder 300 Madison Avenue David McNeil Olds, Esq.
Toledo, Ohio 43604 William S. Lerach, Esq.
Reed, Smith, Shaw & McClay Terence H. Benbcw, Esq.
747 Union Trust Building A. Edward Grashof, Esq.
P. O. Box 2009 Steven A. Berger, Esq.
Pittsburgh, Pennsylvania 15230 40 Wall Street New York, New York 10005 Gerald Charnoff, Esq.
Wm. Bradford Reynolds, Esq.
Shaw, Pittman, Potts &
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Trowbridge
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910-17th Street, N.W.
Washington, D.C.
20006 Roy P.,Lessy, Jr.
Counsel for NRC Staff O
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