ML19326A725
| ML19326A725 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 03/01/1976 |
| From: | Frysiak J, Rigler D, Smith I Atomic Safety and Licensing Board Panel |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002270893 | |
| Download: ML19326A725 (13) | |
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'A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION MAR 11976 >
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In the Matter of
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ebt l W THE TOLEDO EDISON COMPANY AND
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Docket Nos. 50-3463)
THE CLEVELAND ELECTRIC ILLUMINATING
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5-JA COMPANY
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50-501A (Davis-Besse Nuclear Power Station,
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THE CLEVELAND ELECTRIC ILLUMINATING
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Docket Nos. 50-440A (Ferry Nuclear Power Plant,
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50-441A Units 1 and 2)
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MEMORANDUM OF THE BOARD RELATING TO HOTION TO COMPEL PRODUCTION OF CIVIL INVESTIGATIVE DEMAND DOCUMENTS On May 1, 1975, in a separate proceeding, the Department of Justice (Department) issued a Civil Investigative Demand (CID) to the Cleveland Electric Illuminating Company (CEI) under the Antitrust Civil Process Act, 15 U.S.C. Section 1311-14. CEI produced the demanded documents on June 27, 1975. On October 31, 1975, the Department applied for a I
subpoena to CEI under 10 CFR 2.720 fer some of the documents produced pursuant to the Demand.
Upon motion of CEI, the Board by Order of November 18, 1975, quashed the subpoena, but granted leave to the Department to proceed i
under Sections 2.741 and 2.740(f) which provide for the pr.oduction of documents among parties.O We now address the Department's motion to-compel production of documents filed November 21, 1975.
If See Consumers Power Company (Midland Plant, Units 1 and 2),
ALAB-35, 4 AEC 711, 713, Sept. 21, 1971).
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i i Physical production of the documents is not required because the Department already has them as a result of the Demand. The Department considers the documents to be unavailable for use in this proceeding unless they are produced under NRC process because of the provisions of the Antitrust Civil Process Act.
Tr. p. 5646.
The problem arises because, where documents produced under a Demand are in the posession of the Department's custodian for such documents,
.../37o material so produced shall be available for examination, without the consent of the person who produced such material, by an individual other than a duly authorized officer, member or employee of the Department of Justice.
(15 U.S.C. Section 1313(c))
i Use of the material in this proceeding would, of course, permit examination by others. Section 1313(d) permits the use of Demand-produced documents:
(d) Whenever any &ctorney has been designated' to appear on behalf of the United States before any court or grand jury in any case or proceeding involving any alleged antitrust violation, the custodian may deliver to such attorney such documentary material in the possession of the custodian as such attorney determines to be required for use in the presentation of such case or proceeding on behalf of the United States. * * * * *.
CEI observes that this proceeding is before neither a court nor j
a grand jury. We are told that documenta produced pursuant to Demand
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under the Antitrust Civil Process Act are beyond the reach of NRC agency process. Our examination of the language of that Act discloses no intent to foreclose the production of documents turned over to the Department during the course of a civil investigation to federal agencies having independent reason to call for their production.
Neither have Applicants pointed to anything in the legislative history of the Antitrust Civil Process Act which would give credible support to such an interpretation. Thus, as we approach the controversy with respect to CID documents, we find no legislative barrier, neither i
l by reference to the terms of the Act itself nor from any expression of Congressional intent to foreclose production in federal agency i
proceedings.
The test for resolving this motion, as we see it, is whether the documents for which production is being sought are relevant to the proceedings before this Commission, and in this instance, whether they contain materials thought to be of probative value to the Board in reaching its decision.1/ Ordinarily, we would rely solely upon i
the relevance test set forth in Section 2.740.
In this proceeding, i
2/
Rule 2.740(b)(1) provides that: " Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding..." and that "It is l
I not ground for objection that the information sought will be inadmissible at the hearing if the information sought appears
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reasonably calculated to lead to the discovery of admissible evidence." Rule 2.740(b)(1) closely parallels Rule 26(b)(1) of the Federal Rules of Civil Procedure.
. however, we require a higher standard of probativ'e valph because the Department made application for production after the termination date for discovery established by this Board. Thus, to the extent, if any, that the Department would seek to enlarge or prolong the ample discovery period allocated by this Board, we would require a showing of good cause, i.e., that documents not previously produced are specifically thought to offer meaningful support of the Depart-ment's position with respect to the Issues in Controversy in this l
proceeding.3/ The Department's request for production probably would i
be denied as untimely if it were made, not for the purpose of obtain-ing documents to be introduced into evidence, but for the purpose of conducting depositions and seeking additional materials which might l
l be of probative value. Here, however, it is apparent that the Depart-ment already possesses and is familiar with the content of the docu-ments for which production is sought. We are informed that production at this time is sought for the express purpose of obtaining documents.
l the contents of which already are known but which the Department con-siders to be unavailable absent Commission process because the docu-ments come to its attention as a result of a CID.
Tr. p. 5646.
To hold that documents produced to the Department pursuant to the Antitrust Civil Process Act thereafter are not reachable by the 3,/
These issues were set by the Board on July 25, 1974, at the commencement of the discovery period. The discovery period extended through August 1975.
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. Department in federal agency proceedings would create an irrational and absurd result. The effect of such a holding would be to confer hmity in the agency forum upon a producing party with respect to those documents merely because the party was fortunate enough to have received a Civil Investigative Demand. The federal agencies' abil-ities to discharge their statutory obligations would be frustrated in that significant documents of probative value would be excluded from consideration by the agency and the public interest would be subverted by the Department's inability to build a complete record with respect to its posit. ion.
Although we make this decision in the context of an NRC anti-trust proceeding, our reasoning will become even more apparent if we apply Applicants' argument to documents of probative value in a license proceeding relating to the safety of a nuclear plant. Appli-cants' contention is that documents produced to the Department pur-suant to CID request thereafter would be shielded or immunized from use by the Department in NRC proceedings notwithstanding the presence in those documents of information which might disclose safety-related defectsoftheplant.O This argument is untenable.
'fe do not 4_/
We recognize that the Department is not ordinarily a party to license proceedings in which safety and environmental concerns are the only issues in controversy. Nonetheless, the mere suggestion that the Antitrust Civil Process Act prevents Commission consideration of such documents illustrates in a safety context the mischief which could result if we should adopt Applicants' rationale.
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. believe that Congress even remotely contemplated such a result, and we would not accept this result absent an express Congressional directive forbidding production or use of the documents.
We conclude:
(1) That the Antitrust Civil Process Act establishes no inherent barrier to the use of NRC process to obtain documents relevant in NRC proceedings; (2) That the Department's request for these documents, though filed pursuant to a discovery request, in actuality is made for the purpose of obtaining documents for direct evidentiary use in these proceedings ;
(3) That the Department is able to evaluate whether it wishes to present these documents in evidence because it already has been able to analyze their content; (4) That there is representation of relevance by Department; (5) That we can permit production of these documents pursuant l
to Rule 2.740 because, even viewing production as discovery related, it would not violate the spirit or intent of our discovery date cut-off rule.
(a) No' additional burden is placed upon Applicants since 1
no file search is necessary. The documents already are in the possession of the Department.
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. (b) No surprise with respect to hearing preparation can be claimed by Applicants since:
- 1) We have not enlarged upon any of the issues in controversy nor the specific Statement of the Nature of Claims to be Asserted which we are using to control the introduction of evidence in these proceedings; 4
- 2) The documents came from Applicants' own files and therefore the contents should have been known to them in any event;
- 3) The Department's first notice to Applicants that it intended to utilize the CID documents in this proceeding occurred well prior Novem-ber 10, 1975, the date by which we required all parties to list documents they intended to introduce into evidence in these proceedings.
Thus, Applicants were placed on timely notice that if the Department were successful in its motion to compel production, the documents would be utilized by the Department in support-of its case.
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.In the interval since the motion to compel production first was l
made, the hearings have proceeded for more than two months. Issues
v have become refined and all parties have been made aware of the Board's intent not to permit repetitious and cumulative introduction of evidence. See Rule 2.757(b). Accordingly, the Department no longer may desire to introduce many of the documents for which pro-duction is being sought. We would discourage the introduction into evidence of documents which, while otherwise relevant, do nothing more than duplicate materials already in the record.- Therefore, although we announce our intent to grant the Motion to Compel Pro-duction, we direct the Department to review documents listed on the schedules attached to that motion and to designate those documents which it presently intends to attempt to introduce into evidence.
Because the Department already has had extensive discovery and access to voluminous materials of Applicants apart from documents covered by the Civil Investigative Demand, we anticipate that a substantial reduction of the documents requested may be achieved.
Upon receipt of the revised list of CID documents for which production is sought, it is our intent immediately to sign the production order.
The submission of the revised list will be taken as a representation by the Department that introduction of the documents will not burden the record in cumulative and repetitious fashion and that the l
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. documents are asserted to be of significant probative value in these proceedings.
TFE ATOMIC SAFETY AND LICENSING BOARD
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[Ivan W. Smith, fid!iser
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g6hn M. Frysiak, Mender ft-i 21 u yt W
o same fer S ev a DouglaY V. Rigler, Clifirman Dated at Bethesda, Maryland this 1st day of March 1976.
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U:!ITED STATES OF '.'.':R!CA a..:. G.. -,.,,. L i.... r y,.,..
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In the ':atter of
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THE TOLE 00 EDISO:: CC:GA::Y, EI AL. )
Docket Nd.(s) 50-346A CLEVELA::D ELECTRIC ILLt?!II:ATI::G )
50-440A CO:-1?A:iY
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50-441A
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(Davis-P, esse !;uclear Power
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Station, Unit ::o. 1; Perry
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!!uclear Power Plsat,. Units 1&2))
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I hereby certify that I have this day served the fore;cing doc =::-nt(si upon eac: perren dcsigna:ed an the ef ficial ser ticc ~ 1is t c:rriic; by the Of fice of the Secretary of t'.;c Cr mi:3 ion in this preceedin; in accordance ':ith the requirements of 52ccion 2.712 of 10 CrR Part 2-Rules of Practice, of the Nuclear Regulator.y C:---issica's fules and Regulatiena.
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50-346A, -440A, -4 &'4, -500A, -501A page 2
_ Gerald Charnoff, Esq.
Honorabic Edward A. Matto Shaw, Pittman, Potts, Troubridge Assistant Attorney General and Madden Chief, Antitrust Section 910 -17th Street, N. W.
30 East Broad Street, 15th Floor Washington, D. C.
20006 Columbus, Ohio 43215 Lac C. Houlcy, Esq., Vice President Honorable Deborah P. Highsnith and General Counsel Assistant Attorney General Cleveland Electric Illuminating Antitrust Secticn Company 30 East Broad Street, 15th Floor P. O. Bo:< 5000 Columbus,0hio 43215 Cleveland, Ohio 44101 Michael R. Gallar.her, Esq.
9:vid C. !!jcirfelt, Esq.
Gallagher, Sharp, Fulton, Lichael 01daa, Esq.
Nornan and Mollison l'n.m Pennsylvania Avenue, N. U.
63G Bulhley Suildier
,em...r.;:en, 3. C.
20005 Clavelanc, Chi: 4'115
'let: ban Goldb erg, Esq.
Duncan, Brown, -Je inb erg Palner A nold Tieldn'an, Esq.
1700 Pennsylvania keenue, N '. '.
17C0 Fennsylvania Avenue, :'. W.
Usshington, D. C.
20035 i:n,1. :.ngt on, D. C.
20006 John L,n s d ale. J r., E s q.
Ste"en M. Char o. Ecc.
Con, Lnn;; ford Gre::n
- i:! vin G. Sc r:r r, Esq.
21 Dupent Circle.. '. ".
, titres Livi.:ica rashington. D. C.
20036 U.
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203C0 Leslic denry. Esq.
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20530 Mr. George L. Crrc5v Director of l'ef.litiu.3 a m C. Engtc, ?residen:
Piqu.a, Ohio 55330
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..ric "?.ll:.at J. Sec..a Anthony G.
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. 50-346A,; -440A, -44A, 500A, -501A Page 3
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, Susan B.:Cyphere, Esq.
Joseph A. Rieser, Jr., Esq.
' Antitrust Division -
I.ee A. Rau, Esq.
Department of Justice
- Reed,. Smith, Shaw & McClay-727 Now Federal'Suilding.
Madison Building, Suite' 404 '
' 2140 East Ninth Screet
- Washington, D. C.
20005-
- Cleveland, Ohio 441.99-Terence H. Benbow,. Esq.
David M.-Olds, Esq.
A. Edward Grashof, Esq.
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-Reed,-Smith, Shau cnd McClay Winthrop, Stimson, Putnam P. O. Box 2009 and Roberts Pitt.sburgh, Pennsylvanic. 15230 40 k'all Street
- icu York, I;ew York 10005
- Thomus A. Kayune, Esq.
47 North Main Street Ruth G. Ecll, Esq.
' Ai:ron, Ohio-44308 Janet R. Urban, T.sq.
Antitrust Dtn sica Ferry Publie-i,ibrary Departmaat of Justice 3753 ::ain-Strat i.'a s hint:to n, D. C.
20530 Perry,- Chio. - 440S1
.DLrector.
T.da Rupp Public Libr6:y
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