ML19329A972

Applicants' Response to American Municipal Power-OH Request for Extension of Time to Respond to Motion for Summary Disposition.Motion Should Be Denied.Certificate of Svc Encl

ML19329A972
Person / Time
Site:	Davis Besse, Perry
Issue date:	08/30/1974
From:	Charnoff G, Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8001280711
Download: ML19329A972 (11)

Text

.. a August 30, 1974 UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

THE TOLEDO EDISON COMPANY and )

THE CLEVELAND ELECTRIC ILLUMINATING )

COMPANY )

(Davis-Besse Nuclear Power Station, ) Docket Nos. 0-346A Unit 1) ) 5-

) 50-441A THE CLEVELAND ELECTRIC ILLUMINATING )

COMPANY, ET AL., )

(Perry Nuclear Power Plant, )

Units 1 and 2) )

APPLICANTS' RESPONSE TO AMP-OHIO'S REQUEST FOR EXTENSION OF TIME TO RESPOND TO THE MOTION FOR

SUMMARY

DISPOSITION

1. On August 16, 1974, American Municipal Power-Ohio, Inc. (" AMP-Ohio") filed with the Licensing Board a motion for an extension of time to answer Applicants' Motion for Sum-mary Disposition from August 23, 1974, to and including May 12, 1975, a total of 262 days. In a conference call among counsel for all parties to this proceeding, initiated by Chairman Farmakides on August 22, 1974, each party was directed to reply to AMP-Ohio's motion, and to address additionally the question I of what date would be appropriate as a deadline for AMP-Ohio's I response to Applicants' Motion for Summary Disposition assuming arguendo that the Licensing Board refuses to grant the pending motion for mcre time.

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2. Applicants submit that AMP-Ohio's request for an additional 262 days to answer the Motion for Summary Dis-position is ill-founded and should be denied. While we con-tinue to believe that Section 2.730(c) of the Commission's Restructured Rules of Practice sets the time for AMP-Ohio's response, Applicants would not object to the Licensing Board extending AMP-Ohio's answering period to a date no later than September 30, 1974, as requested by the City of Cleveland.

3. AMP-Ohio relies on Section 2.749(a) of the Com-mission's Restructured Rules of Practice to maintain that it can defer filing its response until 2 days before May 14, 1975, the date set for the substantive hearing on matters ultimately determined to be in controversy. That regulatory directive, however, must be read in proper context; it clearly contem-plates that the "two (2) days before the date of the hearing" requirement for responses is to have application only in those circumstances where the motion for summary disposition is filed, as permitted by Section 2.749(a), " ten (10) days before the time fixed for the hearing." In such a situation, the respondent, if served with a copy of the motion by mail, would, under normal motion procedures pursuant to Section 2 730(c) of the Commission's Restructured Rules of Practice, not be re-quired to respond thereto until the date that the hearing

1

. l actually commenced (or perhaps even the following day).1/

The Licensing Board would thus have no real opportunity to consider in advance whether the issues raised by the movant should be disposed of summarily without a hearing.

4. Accordingly, the Commission wisely chose to restrict to an 8-day period the time for answering summary disposition motions which are filed 10 days before a scheduled hearing. It would be contrary to the entire thrust of this sensible limitation on the general requirements for motion pleading (10 C.F.R. 52.730) now to read Section 2.749(a) in the manner urged by AMP-Ohio, as intending to enlarge, rather than contract, the time within which to file an answer.

5 Moreover, such an expansive reading of the Com-mission's regulation would largely undermine the essential purpose for the summary disposition procedure. It is, of course, generally recognized that a motion for summary decision is designed to remove from administrative adjudication, at the earliest opportunity, those matters as to which "there is no genuine. issue as to any material fact and * *

• the moving 1/ Pursuant to Section 2.730(c), responses to motions are to be filed 5 days after the service thereof, not including Saturdays, Sundays and holidays (10 C.F.R. 52 710). If service is by mail, Section 2.710 provides that "three (3) days shall be added to the prescribed period." Hence, the filing of a response to a motion for summary disposition filed 10 days before the hearing would,.but for $2.749(a), not be required for a minimum of 10 days, and, if a holiday should fall within that period,

.the respondent would then have 11 days to file his answer.

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party is entitled to a decision as a matter of law" (10 C.F.R.

$2 749(d)).

6. To this end, the summary procedure permits the Licensing Board to cut off discovery directed to areas where no showing can be made that a genuine controversy exists; it serves to protect the parties and the Board from unnecessary time-consuming and expensive pretrial and trial proceedings relating to generalized allegations which have no real factual support or legal basis. The aim of the summary disposition pro-cedure is to shorten the discovery and hearing process to the fullest extent permissible, or, if appropriate, to dispose sum-i marily of the action altogether, and to do so as expeditiously

+

as possible. Thus, AEC Appeal Boards have repeatedly encouraged the use of motions for summary disposition in environmental and safety hearings, as a way of eliminating in advance of the hear-ing the issues which involve no disputed facts and need not be heard. See In the Matter of Northern ~ States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, RAI-78-3 188, 194 (March 29, 1973); In the' Matter'of Duquesne Light Co.,'et al. (Beaver Valley Power Station, Unit 1), ALAB-109, RAI-73-4 243, 244-245 (April 2, 1973); In the Matter of Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, RAI-73-6 423, 424-425, 426 (June 19, 1973);

i 1

)

1 In the Matter of Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, at p. 19 (July 8, 1974).

7 A3:P-Ohio's construction of Section 2.749(a) would necessarily have the effect of precluding such expeditious consideration of the present motion for summary disposition.

Instead, before entertaining AMP-Ohio's response to Applicants' Motion, the Licensing Board would have to a' wait the completion of all pretrial discovery, the subsequent filing of each party's statement on the ultimate issues'to be heard, the preparation of written testimony, and the submission of pretrial briefs.

4 But, so to defer consideration of matters which are now deemed ripe for early disposition would effectively defeat a major objective of the summary procedures. It_would foreclose any possibility of eliminating altogether, or at least narrowing considerably, the pretrial discovery process as it relates to AMP-Ohio's claims. Clearly, the Commission did not intend for its summary procedures to be so compromised.

8. This is particularly apparent in the present context, where the motion for summary disposition is based on the argument that no ne;us exists between AMP-Ohio's contentions in its petition t'o intervene and activities under the licenses being sought by Applicants. As pointed out by the Licensing Board

in its Final Memorandum and Order of April 15, 1974 (p. 10,

n. 14), the Commission has explicitly directed that the sum-mary procedures be invoked at any time to dispose of the nexus issue in antitrust proceedings under the Atomic Energy Act.

Thus, the Commission stated in one of its Waterford decisions:2/

The hearing issues cannot and should not be divorced from the overriding requirement that there be a reasonable nexus between the alleged anticompeti-tive practices and the activities under the particular license. This is a primary and predominant question which must pervade the proceeding.

We' remin'd the' Board'an'd'the ' parties that if it'becomes' apparent' at any point that no meaningful nexus can be shown, all or part of'the proceeding-should beJsummar11y disposed of. This can be done under the provisions of 10.C.F.R. 2.749 or by any other appro-priate means. [ Emphasis added.]

The underlying reason for this reminder is manifest. As the Commission observed in the same opinion (ibid. ): "If activities relating to a facility have no substantial connection with al-leged anticompetitive practices, there is no need for a hearing as to such practices or proposed forms of relief from them."d!

2/ Memorandum and Order of September 28, 1973, in In the Matter of Louisiana' Power'and Light' Company (Waterford Steam Electric Generating Station, Unit 3), Docket No. 50-328A, CLI-73-25, RAI-73-9-619, at p. 621.

1/_ It is noteworthy that the Licensing Board in Waterford did subsequently entertain a motion for summary disposition as to all of the issues raised in the proceeding, and, after re-ceiving timely responses thereto (filed well before the day preceding the eve of the scheduled hearing date), ruled on the 1 i motion. See Memorandum and Order With Respect To Staff's Motion  !

For Summary Disposition, LBP-74-23, RAI-74-4 698 (April 12, 1974).

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9. It is, therefore, plain that AMP-Ohio's request for an additional 262 days within which to answer Applicants' Motion for Summary Disposition should be denied. No authority whatsoever has been cited by AMP-Ohio to support its position.

Not only does its undue emphasis on the "two (2) day" require-ment in Section 2 749(a) run counter to the clear intent of the Commission, as expressed implicitly in the regulation and explicitly in Waterford; it also is wholly inconsistent taith the judicial counterpart to Section 2.749(a), i.e., Rule 56 of the Federal Rules of Civil Procedure, which the Commission, in its 1972 revisions of the summary disposition procedures, in-tended "to track more closely." Commission's Statement of Considerations Accompanying Issuance of its Restructured Rules of Practice, 37 Fed. Reg.15127 (July 28,1972). It hardly need be stated that the judicial procedure for disposing of summary judgment motions filed under Rule 56, Fed. R. Civ. P., does not contemplate a deferral of respondents' answers thereto until the day before the time fixed for the trial.

10. Accordingly, Applicants continue to believe that the general requirements for motion pleading, as set forth in Section 2.730(c) of the Commission's Restructured Rules of Practice, control the time when AMP-Ohio's response to Applicants' Motion for Summary Disposition should be filed. Since the 5-day period prescribed therein has elapsed during the pendency of l

l-l

l AMP-Ohio's present motion, AMP-Ohio could, consistent with 10 C.F.R. $2 730(c), appropriately be given an additional 5 days to respond from the date that the Licensing Board rules on the present request for an extension of time. Nor would Applicants have any objection, in light of the existing schedule for the filing of written objections to interrogatories and re-quests for documents, to allowing AMP-Ohio until September 30, 1974 (the date mentioned by the City of Cleveland in its filing of August 20, 1974) as the outside date for answering App 11-cants' Summary Disposition Motion.

11. AMP-Ohio would thus have a total of 45 days from the date it received Applicants' Motion to formulate a response.

This should be more than ample time, especially since AMP-Ohio has necessarily had the nexus question under constant considern-tion since the outset of this proceeding - .as a result of requests for clarification of its nexus position made both by Applicants and the Licensing Board -- and has indicated that it has engaged in repeated conversations with its Consulting Engi-neers, O'Brien & Gene Engineers, Inc., regarding this issue.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By:' . .% QS %C Wm. Bradford Reynolds Gerald Charnoff Counsel for Applicants Dated: August 30, 1974.

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

)

THE TOLEDO' EDISON COMPANY and )

THE CLEVELAND ELECTRIC ILLUMINATING )

COMPANY )

(Davis-Besse Nuclear Power Station, ) Docket Nos. 50-346A Unit 1) , ) 50-440A

) 50-441A THE CLEVELAND ELECTRIC ILLUMINATING )

COMPANY, ET AL., )

(Perry Nuclear Power Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " Applicants' Response to AMP-Ohio's Motion For Extension Of Time To Respond

.To The Motion For Summary Disposition" were served upon-es.ch of the persons listed on the attached Service List, by hand de-11vering a copy to each such person in the Washington, D. C.

area and by mailing copies, postage prepaid, to the others, all on this 30th day of August, 1974 SHAW, PITTMAN, POTTS & TROWBRIDGE By: C. . .' _._ 94Lm Wm. Bradford Reynolds \

Dated: August 30, 1974.

t

Joseph J. Saunders, Esq. John R. White, Esq.

Steven Charno, Esq. . Executive Vice President Antitrust Division Ohio Edison Company Department of Justice 47 North Main Street Washington, D. C. 20530 Akron, Ohio 44308' Reuben Goldberg, Esy. . Thomas J. Munsch, Esq.

David C. Hjelmfelt, Esq. General Attorney 1700 Pennsylvania Avenue, N. W. Duquesne Light Company Washington, D. C. 20006 435 Sixth Avenue -

Pittsburgh, Pennsylvania 15219 Frank R. Clokey, Esq.

Special Assistant John Lansdale, Esq. -

Attorney General Cox, Langford & Brown -

Roon 219 21 Dupont Circle, N. W.

ToWne House Apartments Washington, D. C. 20036 -

Harrisburg, Fennsylvania 17105 Wallace L. Duncan, Esq.

Mr. Raymond Kudukis Jon T. Brown, Esq.

Director of Utilities

• Duncan, Brown & Palmer City of Cleveland 1700 Pennsylvania Avenue, N. W.

1201 7.akeside Avenue Washington, D. C. 20006 Clevelaad, Ohio 44114 C. Raymond Marvin, Esq.

Herbert R. Whiting, Director Assistant Attorney General '

Robert D. Hart, Esq.

• Chief, Antitrust Section

. Department of Law 8 East Long Street 1201 Lakeside Avenue Columbus, Ohio 43215 Cleveland, Ohio 44114 Deborah M. Powell, Esq.

John C. Engle, President . Assistant Attorney General AMP-0, Inc. Antitrust Section Municipal Building 8 Es.st Long Street 20 High Street Suite 510 Hamilton, Ohio 45012 Columbus, Ohio 43215 Donald H. Hauser, Esq. Christopher R. Schraff, Esq.

Managing Attorney Assistant Attorney General The Cleveland Electric Environmental Law Section Illuminating Company' Eighth Floor 55 Public Square 361 East Broad Street Cleveland, Ohio 44101 Columbus, Ohio 43215 Leslie Henry, Esq. ,

! Fuller, Henry, Hodge.& Snyder

• i 300 Madison Avenue -

Toledo, Ohio 43604

l. '

1

l UNITED STATES OF AMERICA ,

{

ATOMIC ENERGY COMMISSION 1

)

'In the Matter of ) l

- )

THE TOLEDO EDISON COMPANY and )

THE CLEVELAND ELECTRIC )

ILLUMINATING COMPANY )

)

(Davis-Besse Nuclear Power ) Dochet Mos. 50-346A I Station, Unit 1) ) '50-440A

. ) 50-441A THE CLEVELAND ELECTRIC )

ILLUMINATING COMPANY )

~

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

SERVICE LIST John B. Farmakides, Esq. Mr. Chase R. Stephens Chairman Docketing & Service Section Atomic Safety and Licensing Board U. S. Atomic Energy Commission U. S. Atomic Energy Commission 1717 H Street, NW Washington, D. C. 20545 Washington, D. C. 20545 John H. Brebbia, Esq. Benjamin H. Vogler, Esq.

Atomic Safety and Licensing Board Office of General Counsel Alston, Miller & Gaines Regulation 1776 K Street, N. W. U. S. Atomic Energy Commission Washington, D. C. 20006 Washington, D. C. 20545 -

Dr. George R. Hall -

Robert J. Verdisco, Esq.

Atomic Safety and Licensing Board Office of General Counsel U. S. Atomic Energy Commission Regulation Washington, D. C. 20545 U. S. Atomic Energy Commission

. Washington, D. C. 2054~5 Atomic Safety and Licensing Board Panel Andrew F. Popper, Esq.

U. S. Atomic Energy Commission Office of General Counsel Washington, D. C. 20545 Regulation ,

U. S. Atomic Energy Commission Washington, D. C. 20545

,