ML19326A598
| ML19326A598 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 09/02/1977 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8002250912 | |
| Download: ML19326A598 (9) | |
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4,N UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION M$
q,\\3ll y ATOMIC SAFETY AND LICENSING APPEAL BOARD 6-5 c[ f.,T Alan S.
Rosenthal, Chairman Richard S.
Salzman g
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9 Jerome E. Sharfman y
)
o.
In the Matter of
)
)
THE TOLEDO EDISON COMPANY AND THE CLEVELAND ELECTRIC
) Docket Nos 25 ILLUMINATING COMPANY
)
-500A
)
50-501A (Davis-Besse Nuclear Power Station, )
Units 1, 2 and 3)
)
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THE CLEVELAND ELECTRIC
) Docket Nos* 50-440A ILLUMINATING COMPANY, et al.
)
50-441A (Perry Nuclear Power Plant,
)
Units 1 and 2)
)
)
Messrs. Reuben Goldberg and David C.
Hjelmfelt, Washington, D.
C.,
and Malcolm Douglas and Robert D.
Hart, Cleveland, Ohio,for the City of Cleveland.
Mr. Melvin G.
Berger and Ms. Janet R. Urban for the Department of Justice.
Mr. Roy P.
Lessy, Jr.
for the Nuclear Regulatory Commission staff.
Messrs. William Bradford Reynolds and Robert E.
- Zahler, Washington, D.
C.,
for applicants Cleveland Electric Illuminating Company, Toledo Edison Company, Duquesne Light Company, Ohio Edison Company and Pennsylvania Power Company.
MEY.CRANDUM AND ORDER September 2, 1977 (ALAB-430)
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The City of Cleveland and the Department of Justice have each moved to strike a different appendix to applicants' reply brief in this antitrust proceeding.
We will discuss each motion in turn.
8002 250 f/2 A (d
. The City of Cleveland seeks to strike Appendix A, a series of charts purportedly showing where the parties' initial briefs discuss certain findings in the decision below.
There are extensive footnotes to the charts con-sisting of legal argument.
The City contends that this appendix tiolates the 100 page lim.itation set by us for reply briefs in this case.
The City is correct.
The lengthy footnotes are plainly legal argument and, therefore, should have been in the body of the brief.
The charts themselves are also argumentative in nature for they are explained by applicants as having been submitted for the purpose of demonstrating that the staff, the Justice Department and Cleveland have not gone beyond the " language" of the decision below in attempting to support their positions. ~~1/
That this proposition is controversial is shown by the staff's answering papers, which claim that the charts are incomplete in significant respects.
We view Appendix A as simply an attempt by the applicants to exceed the page limitations which we set.
We decline to 1/
Applicants also state that another purpose of the appendix was to demonstrate the failure of these parties to coordinate their positions on appeal.
This purpose is hardly relevant to the merits of the appeal; nor is it relevant to any other issue now before us.
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,m countenance it.
Their contention that there may have been similarly improper appendices attached to other parties'
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briefs filed earlier is beside the point; they did not complain about those appendices at the time they were filed.
We will therefore grant this motion to strike Appendix A and disregard any arguments made therein which are not also set forth in the body of the brief.
The Department of Justice moves to strike Appendix B to the reply brief.
Its motion is supported by the staff.
This appendix relates to an affidavit of Justice Department witness William M. Lewis, Jr., which was admitted into i
evidence at the hearing below.
The appendix consists of several letters submitted for the purpose of showing that Mr. Lewis' testimony that the affidavit "was not prepared in connection with any then-pending litigation" (Tr. 5619),
relied upon in the Justice Department's brief, was not true.
In fact, if anything, the documents substantiate this testimony.
They seem to show that his affidavit was prepared to assist the Department in determining what advice to give this Commission, pursuant to section 105c of the Atemic Energy Act, regarding whether activities under a license to construct the Beaver Valley power plant (not involved in
'this case) would create or maintain a situation inconsistent
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m
. with the antitrust laws.
Advice of this nature is required by that section on each construction permit application.
It is rendered whether or not a hearing is recommended by the Department.
Indeed, Justice represents (and applicants do not deny) that it recommended against an antitrust
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hearing on Beaver Valley and that none was held.
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Still, we cannot permit Appendix B to become part of the record.
That would be unfair because the Justice Department would not have the opportunity to present evidence explaining it or rebutting it.
This might be prejudicial were some reviewing tribunal to interpret the bare documents differently than we do.
If the letters in the appendix were newly discovered evidence and tended to show that significant testimony in the record was false, we might be 3/
sympathetic to a motion to reopen the hearing.-- However, in this case, the applicants do not deny the Department's asser-tion that they had the Appendix B documents in their possession for over a year prior to the introduction of Mr. Lewis '
affidavit at the hearing and for more than 2-1/2 years before the submission of Appendix B to this Board.
_2/
While Appendix B does show that Mr. Lewis' recollection was faulty when he testified that he believed the affi-davit was prepared in connection with the Zimmer plant (Tr. 5617), applicants have not shown why that mistake is of any consequence.
_3/' No such motion has been made by the applicants.
w
. Applicants' assertion that they were not aware of the existence of the letters in their own files until well after the close of the hearing below neither excuses nor justifies their unauthorized attempt to supplement the record by appending the-documents to their appellate
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brief.
For the reasons stated, the motions to strike Appendices A and B of applicants' reply brief are granted.--4/
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING APPEAL BOARD Mh
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- .1 S et !
s
.w.
Margaret E.
Du Flo Secretary to the Appeal Board
_4/ In addition to Appendix B, the Justice Department would have us strike the last sentence in footnote 9 on page 13 of the body of the reply brief. Although we decline to take that action, it should be noted that the sentence in questien contains argumentation based exclusively upon the contents of Appendix B.
In view of our determination respecting that appendix, the sentence obviously will not serve to advance l
applicants' cause.
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I UNITED STATES OF A! ERICA NUCLEAR REGULATORY CO:0!ISSIO::
a In the' Matter of
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4 J
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THE TOLEDO EDISON C0:!PANY, ET AL.)
Docket No.(s) 50-346A CLEVELAND ELECTRIC ILLD:INATING )
50-440A COMPANY--
.)
50-441A
)
50-500A.
50-501A (Davis-Besse Nuclear Power-
)
Station,.L' nit No.1; Perry
)
Nucicar Power Plant, Units 1&2))
CERTIFICATE OF SERVICE I hereby. certify that I have this day served the foregoing docucent(s) upon cach person. designated on the official servd.ce' list compiled by the Of fice of the Secretary of the Cortission in this proceeding in 2-accordance with the require: rents of Section 2.712 of 10 CFR Part Rules of Practice, of the Nuclear Regulatory Coctission's Rules and Regulations.
i Dated at Washington, D.C. this I
day of '.bf M 197 n
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.i j',%.) LU.)v& 4._W-l Of fice-of the Secret ry of thc[Co=ission l-COm 9
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e UNIT.:D STATES OF AMF.illC?s UUCLE! R IUNi'LATORY C0:'MISS10' In the ::tter of
)
)
TOLEE0 ErISO:I CCM?A:~?, ET AL
)
Docket !!o.(9) 50-3i h (Davis;3cssc Unit 1)
)
CLE*1E'.AND E1ECTRIC ILUJ'C'IATING
)
)
30 L 1i (Perry Units 1 and 2)
)
T0.ED3 Ei'ISci! C0!P'AYJ. ET AL.
)
50-500A (ravis-sesse Units 2 and 3)
)
50-551.i SERVICE LIST rouglas Rigler, Zsq., Chairman Joseph Rutherg, Esq.
Foley, Lardnar, Hollabaugh 6 Jacobs Antitruct Counsel 313 Connecticut Avenue, N. W.
Counsel for ERC 3:sf:
Washington, D.
C.
20025 U. S. Nuclear Regulatory Co iasion Washington, D. C.
20355 Ivan ". Snith, Esq.
Office of Antitrust & Indamalty Atomic Safety and Licensin Sirrd Of fica 'of ::uclea r Reac tor Raf.ulatioa U. S. Nuclear Regt 'a tor:* Cc 'is sian U. S. Nuclear Regulatory Connissica Uas ilng ton. D C.
20555 "ashington, " C 20355 John 23 Trysich, Esh.
Benjamin li. Vogler, Esq.
Atomic Safety cnd i,1 censing ",oarc Roy I. Le:sy, Jr., Es".
U. S. ::ue l un. Regulatory Commission Antitrust Counsel Wa shinr, ton, D. C.
20535 Counsel for N2C Staff U. S. 2.uclacr 12guictory Co=cission Alan S. Rosenthal, Esc., Chairman Washington, D.
C.
20555 Atomic Safety and Licensing Appaal noard Conald ', Eauser, Es,
U. S. Nuclear Regulatory Cetnission
'ic:or ~. Greanric.,
_r.,
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Washingcon, D. C.
20555 C te caland Elec*.ric It'.< ninat ing Company
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Son 5000 Atomic Sa:ety rad 'icensin:, Appeal Clataland, Chio 0,101 Socrd U. S. :*uelear Regulatory Commissioa Joseph J. Sarnders, Ern., Ch t >.
'J a c h in g ton, C. C.
'.0555
-ubli: Counse? anc - :31;1ati 2 9ection 3 se ! -,, E-Antitrust rivision Atomic Wifety and licensing / ppsal U.
- 5. Z?partren.: ol
-ice Boarc
.cahington, D.
C.
35:,
cuclec r 'e;;uletary Conmis: ion
..ashington, P. C.
20555 k
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50-346A, -440A, -4/-1 A, -500A, -501A page 2 q
3 Gerald Charnoff, Esq.
Honorable Edward A. 'Stto Shau, Pittman, Potts, Trodbridge Assistant Attorney Cen2ral and Madden Chief, Antitrust Section 910 -17th Street, ::. W.
30 East Broad Etreet, 15th Floor Washington, D. C.
20006 Columbus, Ohio 43215 Lee C. Houley, Esq., Vice President Honorable Deborah P. iiighsnith and Gencrcl Counsel Assistant Atterney Gen 2ral Cleveland Electric Illuminating Antitrust Section Company 30 East 3 road Street, 15th Floor P. O. Bon 5000 Columbus,0hio L3215 Cleveland, Ohio 44101 Michael R. Galla3 er, Esq.
h David C. Hjelafelt, Esq.
Gallagher, Sharp, Fulton, Michael Oldak, Esq.
Norman cad Mollison 1700 Pennsylvania Avenue, N. W.
630 Bulhicy Suilding Uashington, D. C.
20005 Cleveland, Ohic 44115 Reuben Goldberg, Esq.
Duncan, Brown, '.Jeinberg & Pa lmer Arnold Fieldaan, Esq.
1700 Pennsylvania Avenue, N W.
1700 Pennsylvania Avenue, N. W.
Uashington, D. C.
20006 Washington, D. C.
20006 John Lansdale. Jr., Esq.
Steven M. Charno, Esq.
Cox, Langford & Bro ;n Melvin C. Berger, Esq.
21 Dupont Circ le, N.
'.J.
Antitrust Division Washington, D. C.
20036 U. S. Departcent of Justice Washington, D. C.
20530 Leslie Henry, Esq.
i U. Snyder, Esq.
IIonorable Thomas E. Kaup =-
uller, Henry, Hodge & Snyder r
A3aistant Attorney Gbneral 300 Madison Areaue Antitrust Division Toledo, Ohio 43604 U. S. Department of Justice Cashington, D. C.
20530 Mr. George B. Crosby Director of Utilities John C. Engle, President Picua, Ohio 45350 AMF-0, Inc.
Municipal Building Uillinr.' Lat is, Jr.
20 High Street U
M.
Lceis E Associates Hamilten, Ohio 15012 P. O.
Son 13S3 Portsmouth, Ohio 45662 Honorchle Richard M. Firestone Assistant Attorney Geaeral Robert D. Hart, Esq.
Antitrust Section Assistant Lav Director 30 Ecst 3 road Stceet, 15th Floor City Hall Colu= bus, Oh io 43215 Cleveland, Ohio 4'1114 Honorable Willic.n J. Drown Anthony G. Ainvalasit, Jr., Esq.
Attorney General Antitrust Division State of Ohio repartaent of Justice Columbau, Ohio 43215 P. O.
Dez 7513 U shington, -
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50-346A, -440A. -441A, -500A, -50iA
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Susan 3. Cyphert, Esq.
Joseph A. Rieser, Jr., Esq.
Antitrust Division Lee A. Rau, Esq.
i Reed, Smith, Shw & :1cClay Departtent of Justice 727 ::cw Federal Suilding Madison Euilding, Suite '04 2140 East 1;inth Street Uashingtca, D. C.
20005 Cleveland, Ohio 44199 Terence H. Benbow, Esq.
David M. Olds, Esq.
A. Edward Grash f, Esc:.
P.eed, Smith, Shaw and McClay Winthrop, Scinscn, Putna-P. O. Box 2009 and Roberts Pittsburg,h, Pennsylvania 15230 40 Wall Streat
!!eu Yor':, ::et: York 10033 Thomas A. Ka yuha, Esq.
47 North Main Street Akron, Ohio 44303 Janet R. I!rban, Esq.
Antitrust Division Perry I'ublic Library Department of Justice 37531hin Street Washington, D.
C.
20530 Perry, O'Tio 44081 Director Ida Rupp Public I.ibrary 301 Madison Street Fort Clinton, Ohio 43452 bo$
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