ML19326A716
| ML19326A716 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 01/12/1976 |
| From: | Charnoff G, Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002270885 | |
| Download: ML19326A716 (10) | |
Text
o January 12, 1976 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE TOLEDO EDISON COMPANY and
)
Docket No. 50-346A,v' THE CLEVELAND ELECTRIC ILLUMINATING
)
COMPANY
)
(Davis-Besse Nuclear Power Station,
)
Unit 1)
)
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
)
Docket Nos. 50-440A (Perry Nuclear Power' Plant,
)
50-441A Units 1 and 2)
)
)
THE TOLEDO EDISON COMPANY, ET AL.,
)
(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-500A Units 2 and 3)
)
50-501A RESPONSE OF THE CLEVELAND ELECTRIC ILLUMINATING COMPANY TO CITY OF CLEVELAND'S MOTION FOR REVIEW OF THE SPECIAL MASTER'S RULINGS ON THE PRIVILEGED DOCUMENT CLAIMS 1.
By motion dated December 30, 1975, the City of Cleveland once again seeks review of the Special Master's rulings on the claims of privilege asserted in this proceeding-by The Cleveland Electric Illuminating Company ("CEI").
Ref-erence is made to the statement by the Appeal Board in ALAB-290 that the " parties' voluntary-agreement" to be bound by the Master's decision did not operate to foreclose the Licensing Board "trom exercising its discretion to review theSpecial Master's' discovery rulings sua sponte * *
(Memorandum and Order, September 19, 1975, p. 4).
From this 8002279 p g M
9
. it is urged that the Appeal Board left open the possibility that a review of the determination on CEI's claims of privi-lege could, even at this late date, be undertaken by the Licensing Board in its discretion.
2.
If the City is interpreting the above-quoted language by the Appeal Board as an invitation to this Board now to examine the Master's rulings, we' seriously question the sincerity of the present motion.
Plainly, the Appeal Board's reference to the discretionary authority of this Board was made in the context of a discussion concerning the " binding effect" of the parties' agreement upon those not participating in that agreement.
In further explanation of its comments on this point in ALAB-290, the Appeal Board stated clearly in ALAB-300 (Memorandum and Order, November 26, 1975, p.
- 30) that the Licensing Board had not been deprived of its discretionary powers to review the Master's rulings sua sponte if it deemed such action appropriate.
However, it noted that the Board had already declined to exercise this discretionary review authority af ter careful consideration of all the circumstances
-- a decision in which the Appeal Board itself fully concurred.
3.
The City argues here that the Board's recent T
disinclination to hold Applicants' Washington counsel to a tiarch' 29, 1974 " agreement" to conduct cross-examination through a single counsel provides a basis for reassessing its earlier i
. decision to hold the parties to their voluntary agreement "to be bound" by the Master's rulings.-1/
This position is not well taken.
The' Board's determination not to review the
" privilege" controversy was made after full argument by both sides; it has been affirmed by the Appeal Board after ex-tensive briefing and argument.
The matter is presently before the U..S.
Court of Appeals for the District of Columbia Cir-
-2/
cuit on the City's Petition for Review.
No aspect of that
-entire question has even a superficial connection to this Board's. considered judgment in a wholly different context re-garding the separate matter of cross-examination of witnesses 3/
t the evidentiary hearing.-
Unlike the City's pending a
disqualification motion, no claim is made here that any of the. privileged documents buns directly or indirectly on the cross-examination decision.
1/
While the City also makes reference to the fact that a single brief was not filed by Applicants in accordance with the' March 29, 1974 statement, this point seems to exalt form over substance.
Applicants filed a single Legal Prehearing Brief and, under separate cover, four separate Fact Prehearing Briefs addressed to the separate allegations against each Ap-plicant.
There was no repetition of argument; nor would Ap-
.plicants have made any.different presentation had they filed a." single'brief" ---the five separately bound Prehearing Briefs would simply have been included under a single cover.
2/.See City of Cleveland v Nuclear Regulatory Commission, DocEet'No.. 75-2115, filed November 17, 1975.
I-3/' We do not understand the City's present motion to take l
' issue with this Board's ruling on the cross-examination ques-I tion;'in any event, such an objection would not withstand (Cont'd p.
4)~
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~
. i i
-4.. There is thus no reason whatsoever for the Bxed now to re-examine its earlier determinat' ion not to re-I view.the Master's rulings on CEI's claims of privilege.
~
[
l-t 3/ Cont'd i
scrutiny.
At the time that the March 29, 1974 filing was made, Applicants, and indeed all the. parties, viewed this antitrust proceeding as embracing only the isolated " situ-ation" within the geographic marke.t of the City of Cleveland.
i The City's petition to intervene and the Department of Jus-tice's advice letters spoke only in terms of alleged anti-competititve practices by CEI vis-a-vis the Municipal Electric Light Plant'("MELP") of the City of Cleveland.
.To the extent
[.
that any of'the other Applicants was involved, it was only j
insofar as-its activities'toward MELP may have impacted on the " situation" in the Cleveland geographic market.
It was with1 the understanding.that the antitrust hearing in Davis-Besse and Perry would-be so confined that' Applicants' Wash-ington counsel stated in the March 29, 1974 filing that cross-examination would be through a single counsel.
Since that j
filing, however, a.very broad statement of issues and matters in controversy was framed over Applicants' strong objection; the ongoing antitrust hearing _was consolidated with the anti-trust hearing scheduled.to commence in Davis-Besse 2 and 3 --
i
.thereby incorporating into this proceeding the Department of I
LJustice's-Davis-Besse-2 and 3 advice letter containing new t
. allegations against some of.the other Applicants which had
>+
no relationship whatsoever to.the City of Cleveland and which were being raised for the first time; and finally on September 5,
1975, the opposing parties advised Applicants -- again for 4
the first time -- that they intended to present evidence in the consolidated proceeding of alleged anticompetitive conduct by each Applicant not just as to MELP but'as to other electric entities located.in that Applicant's particular service area in~an effortcto establish five separate " situations" incon-
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sist'ent1with Section-2 of the Sherman Act.
Accordingly, by-the commencement'of the evidentiary hearing,! Applicants were confronted.with a materially dif-ferenticase than'had been contemplated at the time of the Marchc29, 1974-" agreement" as to cross-examination.
It was 1 apparent-that each Applicant.had different, a:.d even potentially.
conflicting,. interests to be protected at the hearing which could-not be represented adequately by a single counsel oper-ating at all--timeston behalf of all Applicants together.
By contrast,'.the parties' agreement "to be bound" by the Master's rulings was made under circumstances.that have remained un-
? changed throughout the proceeding.
- Indeed, there is serious question whether, in the absence of special circumstances, it would in any event be free to do so in light of the City's pending Petition for Review.
The issue which the City now asks this Board to reconsider is presently in the U.
S. Court of Appeals for the District of Columbia Circuit.
As provided in 28 U.S.C.
S234 9 (a) :
The court of appeals has juris-diction of the proceeding on the filing and service of a petition to review.
The court of appeals
- has exclusive jurisdiction to make and enter, on the petition, evidence, and proceedings set forth in the record, a judgment determining the validity of, and enjoining, setting aside, or sus-pending, in whole or in part, the order of the agency.
[ Emphasis added.]
Accordingly, the City's Petition for Review has, in similar fashion to a Notice of Appeal filed in response to a district court decision, removed from the agency the matter of the re-viewability of the Master's privilege rulings and lodged that issue exclusively in the court of appeals.
Any further.evalu-ation of the question by this Board must await a decision by that tribunal.
See Starnes v McGuire, 512 F.2d 918, 924 n.6 (D. C. Cir. 1974 )
( en banc) ; Reserve Mining Co. v Environ-mental Protection Agency, 514 F.2d 492, 541'(8th Cir. 1975).
5.
Such a conclusion is not only legally sound; it
-is the most equitable result in the circumstances of the present i
)
. motion.
As to the agreement "to be bound," CEI has already turned over to the City certain documents in reliance thereon which it continues to believe, contrary to the Master's rulings, are entitled to protection from disclosure as privi-leged communications.
Thus, the City has derived full benefit from its agreement.
As was pointed out both by this Board and the Appeal Board, it would be unfair to allow the City in such circumstances to ignore its responsibilities and com-mitments under the same agreement.
However, no such argument can be made with regard to Applicants' March 29, 1974 " agree-ment" with respect to cross-examination.
The City has not acted to its detriment in reliance thereon.
Nor will it be prejudiced in any way if Applicants continue to conduct cross-examination-through their respective independent counsel.
The
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Board has already stated clearly on several occasions that it does not intend to allow duplicative cross-examination; it is plainly in a position to assure that the parties adhere to this adnonition.
Applicants have made every effort thus far to coordinate their respective roles in the evidentiary hearing to the fullest extent possible, and they will continue to do so.
To date, where a second counsel representing one of.the Applicants has deemed it necessary to cross-examine a witness already subjected to cross-examination by counsel for another Applicant, his questions have been non-repetitive and a
4 to the point.
There is no reason to anticipate any departure from this practice.
6.
For all of the above reasons, the December 30, 1975 motion of the City of Cleveland for review of the Special Master's rulings on CEI's claims of privilege should be denied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE q
~~
By: '. -
D. u. IE.. 5,
.O.s
.s..
WF Bradford Reynolds \\
G.ald Chernoff Rvbert E.
Zahler Dated:
January 12, 1976.
e
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE TOLEDO. EDISON COMPANY and
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
Docket No. 50-346A COMPANY
)
(Davis-Besse Nuclear Power Station,
)
Unit 1)
)
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
)
Docket Nos. 50-440A (Perry Nuclear Power Plant,
)
50-441A Units 1 and 2)
)
)
THE TOLEDO EDISON COMPANY, ET AL.,
)
(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-500A Units 2 and 3)
)
50-501A 1
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing
" Response Of The Cleveland Electric Illuminating Company To City Of Cleveland's Motion For Review Of The Special Master's Rulings On The Privileged Document Claims" were served upon each of the persons listed on the attached Service List, by hand delivering a copy to those persons in the Washington, D. C. area and by mailing a copy, post' age prepaid, to all others, all on this 12di day of January, 1976.
SHAW, PITTMAN, POTTS & TROWBRIDGE
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Wm. Bradford Reynolds Y
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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE TOLEDO EDISON COMPANY and
)
THE CLEVELAND ELECTRIC ILLUMINATING )
Docket No. 50-346A COMPANY
)
(Davis-Besse Nuclear Power Station, )
Unit 1)
)
)
THE CLEVELAND ELECTRIC ILLUMINATING )
)
(Perry Nuclear Power Plant,
)
Docket Nos. 50-440A Units 1 and 2)
)
50-441A
)
THE TOLEDO EDISON COMPANY, ET AL.
)
(Davis-Besse Nuclear Power Station, )
Docket Nos. 50-500A Units 2 and 3)
)
50-501A SERVICE LIST Douglas V.
Rigler, Esq.
Atomic Safety and Licensing Chairman, Atomic Safety and Board Panel Licensing Board U.S. Nuclear Regulatory Foley, Lardner, Hollabaugh Commission and Jacobs Washington, D.
C.
20555 815-Connecticut Avenue, N. W.
Washington, D.
C.
20006 Docketing and Service Section Office.of the Secretary Ivan W.
Smith, Esq.
U.S.
Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.
C.
20555 U.S.
Nuclear Regulatory Commission Washington, D.
C.
20555 Benjamin H. Vogler, Esq.
Roy P.
Lessy, Jr., Esq.
John M.
Frysiak, Esq.
Jack R. Goldberg, Esq.
Atomic Safety and Licensing Office of the Executive Legal Board Director U.S.
Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commissic Washington, D.
C.
20555 Washington, D.
C.
20555 I
>e Joseph J. Saunders, Esq.
Terence H. Benbow, Esq.
' Antitrust Division A. Edward Grashof, Esq.
Department of Justice Steven A. Berger, Esq.
Washington, D..C.
20530 Winthrop, Stimson, Putnam
& Roberts Steven M.
Charno, Esq.
40 Wall Street Melvin G.
Berger, Esq.
New York, New York 10005 Janet R. Urban, Esq.
P. O. Box 7513 Thomas J. Munsch, Esq.
Washington, D. C.
20044 General Attorney Duquesne Light Company Reuben Goldberg, Esq.
435 Sixth Avenue David C.
Hjelmfelt, Esq.
Pittsburgh, Pa.
15219 Goldberg, Fieldman & Hjelmfelt 1700 Pennsylvania Avenue, N.W.
David Olds, Esq.
Suite 500 William S.
Lerach, Esq.
Washington, D.
C.
20006 Reed, Smith, Shaw & McClay Union Trust Building James B. Davis Box 2009 Director of Law Pittsburgh, Pa.
15230 Robert D.
Hart 1st Assistant Director of Law Lee A.
Rau, Esq.
City of Cleveland Joseph A.
Rieser, Jr., Esq.
213 City Hall Reed, Smith, Shaw & McClay Cleveland, Ohio 44114 Madison Building - Room 404 1155 15th Street, N. W.
Frank R.
Clokey, Esq.
Washington, D. C.
20005 Special Assistant Attorney General Edward A. Matto, Esq.
Room 219 Richard M. Firestone, Esq.
Towne House Apartments Karen H. Adkins, Esq.
Harrisburg, Pa.
17105 Antitrust Section 30 E.
Broad Street, 15th Floor Donald H.
Hauser, Esq.
Columbus, Ohio 43215 Victor A. Greenslade, Jr., Esq.
The Cleveland Electric Christopher R. Schraff, Esq.
Illuminating Company Assistant Attorney General 55 Public Square Environmental Law Section Cleveland, Ohio 44101 361 E.
Broad Street, 8th Floor Columbus, Ohio 43215 Leslie Henry, Esq.
Michael M.
Briley, Esq.
James R.
Edgerly, Esq.
Roger P.
Klee, Esq.
Secretary and General Counsel Fuller, Henry, Hodge & Snyder Pennsylvania Power Company P.
O.
Box 2088 One East Washington Street Toledo, Ohio 43604 New Castle, Pa.
16103 Russell J.
Spetrino, Esq.
John Lansdale, Esq.
Thomas A.
Kayuha, Esq..
Cox, Langford & Brown Ohio Edison Company 21 Dupont Circle, N.W.
l 47 North Main Street Washington, D.C.
20036 Akron, Ohio 44308
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