ML19326B104

Applicants' Response to Motion of DOJ Filing of Affidavits & Reopening of Discovery.Hearing Stay Application Should Not Be Prolonged.Deadline for Filing of Affidavits Should Be Granted.Certificate of Svc Encl

ML19326B104
Person / Time
Site:	Davis Besse, Perry
Issue date:	02/24/1977
From:	Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8003060908
Download: ML19326B104 (7)

Text

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s February 24, 1977

• A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )

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THE TOLEDO EDISON COMPANY and ) .

THE CLEVELAND ELECTRIC ILLUMINATING ) Docket No. S'0;3T6AN COMPANY )

(Davis-Besse Nuclear Power Station, )

Unit 1) ) .

) '

Cr1E CLEVELAND ELECTRIC ILLUMINATING )

COMPANY, ET AL. ) 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 APPLICANTS' RESPONSE TO MOTION OF DEPARTMENT OF JUSTICE PERTAINING TO THE FILING OF AFFIDAVITS AND THE REOPENING OF DISCOVERY

1. The Department of Justice, by motion dated

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February 23, 1977, has asked this Appeal Board to order all parties wishing to submit affidavits in support of, or in opposition to, Applicants' pending application for a stay, pendente lite, to make such filings by March 2, 1977. Appli-cants are. currently in the proces.= of preparing supporting affidavits, and they fully intend to, file and serve them by no later than March 2, 1977. We certainly have no objection to the Department's request that a similar deadline be imposed

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2-upon all other parties to this proceeding intending to . .

submit affidavits.-1/

2. As to the matter of reopening discovery and 3 delaying oral argument on the stay application beyond March 9, 1977, such a procedure seems to us to be wholly unnecessary. This Appeal Board is certainly capable of evaluating the affidavits put before it.-2/ To the extenc any counsel believes the statements of an affiant should

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for some reason be accorded less weight, he will have ample opportunity at the' March 9 hearing tc articulate his position 1/ We also see merit to the proposal that record citations to materials and hearing testimony of relevance to the stay application be communicated by each party to this Board and to the opposition parties on or before March 2, 1977. SLmi-larly, the Department's request that there be an opportunity in advance of oral argument to file with this Board " rebuttal affidavits" appears to make good sense. We would suggest that the filing requirement in this connection be noon on March 8, -,

1977, so as to provide the Appeal Board and all counsel an op-portunity to review and digest the rebuttal statements prior.

to the " stay" hearing itself.

2/ We would like to believe that the intemperate tone of the Department's motion is more the product of a misguided ex-uberance than it is the product of out-and-out poor judgment.

In any event, we need do nothing more than direct this Appeal Board to the referenced transcript pages of~the Hauser and Gaul testimony to lay to rest any doubts as to the' truth and accuracy of'the matters set forth in the questioned affidavits (see also C-168 as transcribed at Tr. 12726-37; Gaul 12427-63; Kudukis 12738-69). Nor do we understand the apparent implication of the Department that said affidavits are somehow suspect because counsel was involved in the preliminary drafting stages of their preparation. Such assistance has always been preculiarly within the province of legal counsel, and, if anything, lends credence to -

rather than detracts from, the accuracy of the sworn statements set.forth in the affidavit ultimately executed.

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j and have it carefully considered by the Appeal Board.- -

This is, we submit, not only fully consonant with due pro-4 cess requirements, but also much the preferred procedure "- 1 I

to follow.

4 i 3. In this connection, we would further note that the issuance of the Davis-Besse Unit 1 operating license now -

appears imminent. The Toledo Edison Company and The Cleveland Electric Illuminating Company -- which are the only two Ap-plicants involved in the licensing process for Davis-Besse 1

3/ The Department's quickness to find fault with the Howley and Gaul affidavits filed below (but see n. 2, supra) should be measured _against its own behavior in this regard at the hearing. For example, when Mr. Lewis was questioned by the Board Chairman concerning preparation of his affidavit identi-fied as Exh. NRC-127, he testified that it'had been prepared in connection with the licensing of the Zimmer Plant, Unit 1, being constructed by the Cincinnati Gas & Electric Company, Dayton Power'& Light Company and Columbus and Southern Ohio

-Electric Company (Tr. 5617-19). In point of fact, the affidavit -

in question was prepared by Mr. Lewis at the specific request of Mr. Charno (the lead lawyer for the Department of' Justice in the hearings below) in connection with the Department's anti-trust investigation of.the Applicants involved in this consol-idated proceeding. The Department, however, allowed Mr. Lewis'

obviously inaccurate testimony.to stand uncorrected, notwith-standing its knowledge at the time that the-testimony was er-roneous -- a matter of no little importance in view of the Li-

-censing Board's decision to assign weight to Mr. Lewis' affi-davit on the1 basis of its faulty impression that the affidavit had been prepared "not in contemplation of these proceedings" (slip op. at 17 6, n. *) . We would not only hope.that the De-partment will show more candor with regard to this matter in-their Brief to the Appeal Board,.but, indeed, believe that it islthe Department's responsibility and obligation to set the record straight regarding its request of November 29, 1972 to ~

Mr.-Ardery, then counsel for AMP-0, for " affidavits setting forth in' detail the circumstances surrounding" discussions be-

. tween the City of Napoleon and The Toledo Edison Company rel-evant-to the matters described in the Lewis affidavit, and ' ~

.Mr. Ardery's responses.thereto of January 11 and 22, 1973.

Unit 1-4/ -- have completed essentially all the steps neces- ,,

sary to obtain the operating license for that facility. It is anticipated that the Commission will be in a position to ,

issue the license within a matter of weeks. In view of this schedule, for the Department to suggest that the hearing on the stay application be prolonged in order te afford an op-portunity for discovery into matters that are, to the Depart-

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ment itself, speculative at best, is, we believe, in the truest sense, to lose sight of the forest due to a misdirected focus on nothing more than ephemeral shadows cast by the trees.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By: b . [ M 483 Wm. Bradford ReynoldsF Robert E. Zahler Counsel for Applicants Dated: February 24, 1977.

4/ The consolidation for hearing purposes only of the Davls-Besse Unit 1 proceeding with the Perry Units 1 and 2 and the Davis-Besse Units 2 and 3 proceedings does not alter -

the undisputed fact that only two of the five Applicants herein have applied for a license to operate Davis-Besse Unit 1. In-sofar as that facility is concerned, the license conditions have no application to the other three non-Applicant private .

utilities (i.e., Ohio Edison, Penn Power and Duquesne Light).

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Appeal 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 )  :

COMPANY, ET AL. ) 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 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing

" Applicants' Response To Motion Of Department Of Justice Pertaining To The Filing Of Affidavits And The Reopening Of Discovery" were served upon each of the persons listed on the attached Service List, by hand delivering copies to those persons in the Washington, D. C. area, and by mailing copies, postage prepaid, to all others, all on this i 24th day of February, 1977.

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SHAW, PITTMAN, POTTS & TROWBRIDGE By: Me. 4 / AEd Wm. Bradford Refnolds -

l Counsel for Applicants

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m UNITED STATES OF AMERIF'

. .1UCLEAR REGULATORY CCMMI- ION Before the Atomic Safety and Licensinc Appeal Board c

In the Matter of ) ,

)

THE TOLEDO EDISON CCMPANY and )

THE CLIVILAND ELECTRIC ILLUMINATING ) Docket No. 50-345A COMPANY ) '

(Davis-Besse Nuclear Power Station,

)

Unit 1) )

. ) .

THE CLEVELAND ELECTRIC ILLUMINATING )

COMPANY, ET AL. ) Docket Nos. 50-440A ,

(Perry Nuclear Power Plant, ) 50-441A Units 1 and 2) )

)

THE TOLEDO EDISON COMPANY, IT AL. )

(Davis-Besse Nuclear Power Station, ) Dcchet Nos. 50-500A Units 2 and 3) )

50-501A SERVICE LIST Alan S. Rosenthal, Esq. Ivan W. Smith, Esq.

Chairman, Atomic Safety and Atomic Safety and Licensing Board Licensing Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Co= mission Washington, D. C. 20555 Washington,.D. C. 20555 John M. Frysiak, Esq.

Joro,me E. Sharfman, Esq. Atomic Safety and Licensing Board

. Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, D. C. 20355 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 - Atomic Safety and Licensing Board Panel

. Richard-S. Salzman, Esq. U.S. Nuclear Regulatorv Commission -

Atomic Safety and Licensing Washington, D. C. 20555 Appeal Board -

i U.S. Nuclear Regulatory Commission .

Docketinc & Service Section Washington, D. C. 20555 Office of the Secretary

. . U.S. Nuclear Reculatorv Commission

-Atomic Safety and Licensing .

Washington, D. C. 2000'6 Appeal Board Panel

.U.S. Nuclear Regulatory Commission Joseph Ru.berc, m csc.

Washington,ED. C. 205m_m_ Benjamin-H. Vogler,' Esq.

Douclas V. Rigler, Esc. EUY.P. Lessy, Jr., Esq.

Chairman,' Atomic Safety and Ofrice of the Execucive Legal Director Licensing Board U.S. Nuclear. Regulator / Commission Foley, Lardner, Hollabauch and Jacobs ,

Washington, D. C. 205mm Chanin Building - Suite 206 ,

815 Connecticut Avenue, N.W. -

Washington, D. C. 20006 _

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Joseph J. Saunders, Esq. Terence H. Benbow, Esq.

~Antitrusc Division A. Edward Grashof, Esq.

Department of Justice Steven A. Berger, Esq.

4 Washington, D. C. 20530 Steven B. Peri, Esq. '

Winthrop , 'S timson , Putnam & Roberts Melvin G. Berger, Esq. 40 Wall Stree:

Janet R. Urban, Esq. New York, New York 10005 Antitrust Division P. O. Box 7513 Thomas J. Munsch, Esq. =

Washington, D. C. 20044 General Attcrney

. Duquesne Light Company Reuben Goldberg, Esq. 435 Sixth Avenue

' David C. .Hjelmfelt, Esq. Pittsburgh, PA 15219 Michael D. Oldak, Esq. '

.Goldberg, Fieldman & Hjelmfelt David McNeil Olds, Esq. -

Suite 550 Reed Smith Shaw & McClay 1700 Pennsylvania Ave., N.W. Union Trust Building -

Washington, D. C. 20006 Box 2009 Pittsburgh, PA 15230 Vincent C. Campanella, Esq. .

Director of Law Lee A. Rau, Esq.

, Robert D. Hart, Esq. Joseph A. Rieser, Jr., Esq.

1st Ass't Director of Law Reed Smith Shaw & McClay City of Cleveland Suite 900 213 City Hall 1150 Connecticut Avenue, N.W.

Cleveland, Ohio 44114 Washington, D. C. 20036 Fpank R. Clokey, Esq. James R. Edgerly, Esq.

Special Ass't Attorney General Secretary and General Counsel Room 219 Pennsylvania Power Company Towne House Apartments .

One East Washington Street Harrisburg, PA 17105 -

New Castle, PA 16103.

Donald H. Hauser, Esq. John Lansdale, Esq.

Victor F. Greenslade, Jr., Esq. Cox, Langford & Brown William J. Kerner, Esq. 21 Dupont Circle, N.W.,

Tha Cleveland Electric Washington, D. C. 20036 Illuminatine Company 55 Public Square . Alan P. Buchmann, Esq.

Cloveland, Ohio 44101 Squire, Sanders & Dempsey 1800. Union Commerce Building ~

Michael M.'Briley, Esq. Clevela'nd, Ohio 44115 Paul M.. Smart, Esc.

Fuller, Henry,.Hodge &'Snyder Edward.A. Matto, Esq.

P. O. Box 2088 Richard M. Firestone, Esq.

. Toledo, Ohio 43603 Karen H. Adkins, Esq.

Antitrust Section Russell J. Spetrino, Esq. ,30 E. Broad Street, 15th Ficor Thomas A. Kayuha, Esq. Columbus, Ohio 43215 Ohio Edison Company

, Christooher R. Schraff, Esc.

! 76 South Main Street Assistant Attorney General ~

l Akron, Ohio 44308 ', Environmental Law Section 361 E. Broad Street, 8th Floor '

Columbus, Ohio 43215 l _ , . - - - . - - - -