ML19319C630
| ML19319C630 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 11/18/1975 |
| From: | Frysiak J, Rigler D, Smith I Atomic Safety and Licensing Board Panel |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8002191073 | |
| Download: ML19319C630 (6) | |
Text
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UNITED STATES OF AMERICA NOV 191975 > -.
NUCLEAR REGULATORY COMMISSION W
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t In the Matter of
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THE TOLEDO EDISON COMPANY AND
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THE CLEVELAND ELECTRIC ILLUMINATING
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Docket Nos. 50-346A COMPANY
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50-500A (Davis-Besse Nuclear Power Station,
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50-501A Units 1, 2 and 3)
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THE CLEVELAND ELECTRIC ILLUMINATING
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Dceket Nos. 50 L40A (Perry Nuclear Power Plant,
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50 241A Units 1 and 2)
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ORDER AND MEMORANDUM RULING ON CLEVELAND'S MOTION TO REOPEN DISCOVERY The City of Cleveland u,ges the Scard to permit additional discovery se that it may prepare to respond to the testi=cny of Applicants' experts, Messrs. Owen A. Lent and Henry A.
Caruso.
Matters Relating to Mr. Lent: and ECAR During discovery City requested (21(c) and 7(c), acticns dated August 26, 1972) documents relating to the formation and activities of East Central Area Reliability Cecrdination Agreement (ECAR) and other organizations with particular reference to the Applicants' participaticn and membership qualifications.
By objections dated September 9, 1972, all Applicant.s resisted the request:
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....on the ground that such records have no relevancy to this proceeding.
These national and regional associations are not identified as participants in the Davis-Besse and Perry projects.
No issue has been raised concerning their activity or behavior.
For the City to seek information regarding the formation and activities of these associations aptly serves to demonstrate how far afield the City will go to harass CEI with burden-some discovery and to attempt to prolong the present proceeding."
In its October 11, 1974 order on objections to Interroga-tories and Document Requests, the Board sustained the objections except as to documents dealing with membership, qualifications for membership, and full participation.
Applicants now seek to offer the written expert testimony of ECAR's Executive Director, Mr. Lentz.
In addition to
=embership considerations, Mr. Lent: testifies concerning the development of interconnection agreements in the ECAR area (p. 5 et sec.).
The genesis of ECAR and CA?CO (p. 8) and ECAR's objectives (pp. 9, IC) and methods (pp. 11 and 12).
City observes that Mr. Lent ' testimony includes the very matters asserted by Applicants to be without relevance and' oves for an order compelling Applicants to respond fully to' document requests numbered 21('c) and 7(c).
City also requests the production of the documents rel... upon by Mr. Lent: in describing the formation of CA?CO and ECAR.
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. In repl ing to City's motion, Applicants argue that it is untimely in that City had earlier opportunities tc dincover, and that the motion is a ploy to accc=plish delay.
Applicants
-simply ignore the fact that they had thwarted City's timely efforts to discover on this subject by claining irrelevancy, and now assert these same matters to be relevant.
Applicants' position is manifestly inconsistent as has been demonstrated by City in its motion.
Since Applicants failed to address themselves to this factor, their respense to the cotion provides little guidance to the Scard.
Therefore, the Board is faced with the option of either (1) striking the portiens of Mr. Lent =' testimony which concerns matters previously s:.
asserted by Applicants to have no relevancy, or (2) permitting further discovery.
To assure an opportunity for a ecmplete record, and to give Applicants the widest latitude in rebutting the charges made against them, we choose the latter course.
Any inconvenience to Applicants is chargeable to their change of position.
City seeks a full response to its document requests which would also include documents relating to the Northeastern Electric Reliability Council and NAPS 1C (Northeast Region).
City has failed t'o show good cause for recpening discovery in relation to these organizations and they are not included
4-in our Order.
In relation te ECAR and CAPCO, the Board orders Applicants to comply with City's document requests numbered 21(c) and 7(c), respectively, dated August 26, 1974, without regard to the September 1, 1965 cutoff date for discovery.
Production shall be cocpleted no later than December 4, 1975 In relation to documents relied upon by Mr. Lente, City may proceed separately under the 3 card's order of November 10, 1975 providing for the exchange of data underlying conclusionary testimony of expert witnesses.
Matters Relating Oc Mr. Caruso's Testimony Mr. Henry E. Caruso testifies in effect that it was and is feasible for Cleveland to 'caild its own transmission facility thereby prcviding access to cutside power sources independent of C5I's transmission facility.
The relevance and importance of this factual question is undisputed.
If Cleveland has the practical capaci.; to build its own trans-mission, a proximate cause of the alleged anticcmpetitive situation could be Cleveland's failure to avail itself of its opportunities, not CE:'s refusa? to wheel pcwer to Cleveland.
Dominance of transmission as it relates to access to outside power has been adopted by the Scard as a matter in controversy and all parties adverse to Applicants have stated an inten*
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. to offer evidence concerning the effect of CEI's refusal to wheel.
Therefore, the Board generally will hold a broad view of the need for evidence on this issue.
City prays that Applicants be required to respond fully to Document Requests 16(d), 16(f), 16(g), 18(a), 58, 59, 70, 81, 87 and 88 dated August 24, 1974, on the ground that the requested documents will go to Cleveland's "real ability" to construct transmission and to "CEI's many activities designed to prevent Cleveland from constructing transmission lines."
(P. 8, City's cotion)
In its order of Cctober 11, 1974, the Soard sustained objections to these documents requests mainly on grounds of relevancy.
New relevancy is apparent.
If, as all agree, Cleveland's capacity to build transmission is relevant, then evidence of acts designed to prevent or frustrate such construction also would be relevant.
- Moreover, City's initial request was timely made.
The init al burden is witn City to prc/e that CEI's transmission is essential to Cleveland's access to outside power.
The rebuttal burden of proceedir.g with evidence that other transmission was available to Cleveland will rest with Applicants.
Thus, before the discovery requested by City is required, it nust meet substantial evidentisry burdens.
At the point in the proceedings at which the 3 card is satisfied
- that City has made a prima facie showing of the necessity for CEI transmission, the Board will reconsider its permitting the requested discovery.
We would contemplate a more precise specification of the grounds for CEI's asserting that alternate transmission was/is available.
This could enable us to control more closely the boundaries of additional discovery, if any.
Our ruling deferring the requested discovery could lead to reopening of limited discovery after commencement of hearing.
Although this need not lead to any delay, we previously have indicated that if delay is required, it would be chargeable to Applicants because it is they who, for their purposes, will be attempting to introduce evidence in an area where they prevented discovery.
City's instant request "or the studies and other data underlying Mr. Caruso's testimony is governed by the Board's Order of November 10, 1975 providing for the exchange of data underlying expert testimony.
IT IS SC CRDERED THE ATCMIC SAFETY AND LICENSING ECARD JanMJa >
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.l. Frygak, Member s#" Ivan W. Smith, Member k
Dated at Bethesda, Maryland this 18th day of November 1975
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