ML19329A969

Response of City of Cleveland,Oh to Questions Posed by Board Re Motion for Summary Disposition Filed by Applicants. Certificate of Svc Encl

ML19329A969
Person / Time
Site:	Davis Besse, Perry
Issue date:	08/30/1974
From:	Goldberg R CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8001280707
Download: ML19329A969 (7)

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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

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The Toledo E'dison Company and

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The Cleveland Electric Illuminating )

Company ) Docket Nos.[A z*uA0T34 (Davis-Besse Nuclear Power Station, ) 50-441A Unit 1) )

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The Cleveland Electric Illuminating )

Company, et al. )

(Perry Nuclear Power Plant, )

Units 1 and 2) )

RESPONSE OF CITY OF CLEVELAND, OHIO, TO QUESTIONS POSED BY THE BOARD WITH RESPECT TO MOTION FOR

SUMMARY

DISPOSITION FILED BY APPLICANTS The City of Cleveland, Ohio, Intervenor in the above-entitled pro-ceedings, hereby files its response to the following questions posed by the Board:

1. Whether or not the Board is authorized, or should exercise its discretion, to decide Applicants' motion for summary disposition prior to the date provided e

in the Commission's Rules or the Board's order prescribing procedural dates.

2. Assuming, arguendo, that the Board ma c decide the motion prior to the date provided in the Commission's 8 001280 707 g7

O O Rules or the Board's order, what is a reasonable time for response to the motion 7

1. Response to Question No. 1 It is the position of the City of Cleveland that Section 2.749 governs the proceduial treatment of a motion for summary disposition.

With respect to the filing of such motions, Section 2. 749 provides that they may be filed up to ten days before the date of hearing. The Board has fixed April 2, 1975 as the date for filing motions for summary disposition, although under the Commission's Rules, motions for sum-mary disposition could be filed up to May 5,1975 (the hearing has been set for May 14, 1975). While the Board's date for filing such motions would have to yield to the Rules if challenged, the City of Cleveland has not, and does not, take exception to the Board's date of April 2,1975.

In any case, since the Rule prescribes a cut-off date and Applicants could file at any time up to that date, there is no issue presented on this score by Applicants' motion.

With respect to answers to motions for summary disposition - the more germane inquiry - Section 2. 749 provides that answers may be filed t

up to two days of the date of hearing, i. e. , May 12, 1975. Under the Board's procedural dates, answers may be filed to motions filed for '

summary disposition by April 14, 1975. The City of Cleveland is of the i

f. ,.

opinion that Section 2. 749 would govern if the Board's date were chal-lenged. City of Cleveland does not interpose any challenge thereto, however.

Since the Commission's Section 2.749 is binding on the Board and is not subject to change by the Board, even though no challenge has been made of the Board's procedural dates dealing with motions for sum-mary disposition, the City of Cleveland believes that the Board should adhere to the dates for response that it prescribed.

If the Board were to rule that it does have discretion to decide Applicants' motion prior to the dates prescribed by Section 2.749 or by the Board, the Board should not do so. It seems obvious that the Com-mission in Section 2.749, and the Board in the date it prescribed, have recognized that the opportunity for discovery and deposition are pre-requisites to a determination of the question whether genuine issues of fact exist. Disposition of the motion prior to the dates prescribed would operate to deprive the parties of the right to discovery and depositions.

Prior thereto, the motion is not ripe for disposition.

2. Response to Question No. 2 If the Board determines that it can decide the motion prior to the date provided in Section 2.749 or the Board's order, City of Cleveland suggests, as it did in its Motion for Clarification, that the Board require-answers no earlier than September 30, 1974.

Counsel for Cleveland, as are counsel for other parties, are cordronted with the necessity of reviewing a voluminous discovery request, determining whether objections should be filed, preparing the objections, dealing with objections that may be filed by Applicants to Cleveland's. discovery request and interrogatories, and preparing to argue the objections before the Board by September 16, 1974.

Additionally, Cleveland's counsel requires time to consult with consultants on the very complex and technical matters that are the subject of the affidavit accompanying the motion for summary disposition.

Respectfully submitted, CITY OF CLEVELAND, OHIO By - < Y Reuben Goldberg Its Attorney Reuben Goldberg David C. Hjelmfelt 1700 Pennsylvania Avenue, N.W.

Washington, D. C. 20006 Telephone (202) 659-2333 Herbert R. Whiting Director of Law Robert D. Hart Assistant Director of Law City of Cleveland City Hall Cleveland, Ohio 44114 Telephone (216) 694-2717 August 30, 1974

Certificate of Service I hereby certify that service of the foregoing " Response of City of Cleveland, Ohio, to Questions Posed by die Board with Respect to Motion for SUrnmary Disposition Filed by Applicants" has been made on the following parties listed on the attachment hereto, this 30th day of August, 1974, by depositing copies thereof in the United States mail, postage prepaid.

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0 Attachment

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ATTACHMENT f

Atomic Safety and Licensing Board Jo8ePh J. Saunders, Esq.

U.S. Atomic Energy Commission Steven Charno, Esq.

Antitrust Division Washington, D. C. 20545 Department of Justice Mr. Frank W. Karas, Chief Post Office Box 7513 Public Proceedings Branch Washington, D. C. 20044 Office of the Secretary Abraham Braitman, Esq.

U. S. Atomic Energy Commission Office of Antitrust and Indemnity Washington, D. C. 20545 U. S. Atomic Energy Commission Washington, D. C. 20545 John B. Farmakides, Esq.

Chairman William T. Clabault, Esq.

Atomic Safety and Licensing Board David A. Leckie, Esq.

U. S. Atomic Energy Commission Department of Justice Washington, D. C. 20545 Post Office Box 7513 Washington, D. C. 20044 John H. Brebbia, Esq.

Atomic Safety and Licensing Board Gerald Charnoff, Esq.

Alston, Miller & Gaines Shaw, Pittman, Potts & Trowbridge 1776 K Street, N. W. 910 - 17th Street, N. W.

Washington, D. C. 20006 Washington, D. C. 20006 Dr. George R. Hall Frank R. C1okey, Esq.

Atomic Safety and Licensing Board Special Assistant Attorney General U. S. Atomic Energy Commission Room 219 - Towne House Apartments Washington, D. C. 20545 Harrisburg, Pennsylvania 17105 Benjamin H. Vogler, Esq. Thomas J. Munsch, Jr. , Esq.

Joseph Rutberg, Esq. General Attorney Office of the General Counsel Duquesne Light Company Regulation 435 Sixth Avenue U. S. Atomic Energy Commission Pittsburgh, Pennsylvania 15219 Washington, D. C. 20545 David McNeil Olds, Esq.

Robert J. Verdisco, Esq. John McN. Cramer, Esq.

Office of the General Counsel Reed, Smith, Shaw & McClay Regulation 747 Union Trust Building U. S. Atomic Energy Commission Pittsburgh, Pennsylvania 15219 Washington, D. C. 20545 John R. White, Esq.

Jon T. Brown, Esq. Vice President and General Counsel Duncan, Brown, Weinberg & Palmer Ohio Edison Company Suite 777 47 North Main Street 1700 Pennsylvania Avenue, N. W. Akron, Ohio 44308 Washington, D. C. 20006

Page 2 ATTACHMENT (Continued)

Pennsylvania Power Company 1 East Washington Street New Castle, Petasylvania 16103 Leslie Henry, Esq.

Fuller, Henry, Hodge & Snyder 300 Madison Avenue Toledo, Ohio 43'604 Donald H. Hauser, Esq.

The Clev iand Electric Illuminating Co.

Post Office Box 5000 Cleveland, Ohio 44101 John Lansdale, Jr. , Esq.

C ox, Langford & Brown 21 Dupont Circle, N.W.

Washington, D. C. 20036 Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeals Board U. S. Atomic Energy Commission Washington, D. C. 20545 Dr. John H. Buck Atomic Safety and Licensing Appeals Board U. S. Atomic Energy Commission Washington, D. C. 20545 Dr. Lawrence K. Quarles Atomic Safety and Licensing Appeals Board ,

U. S. Atomic Energy Commission Washington, ~ D. C. 20545 C. Raymond Marvin, Esq.

Deborah M. Powell, Esq. .

Antitrust Section 8 East Long Street -

Suite 510 Columbus, Ohio 43215 l

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