ML19329C235
| ML19329C235 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 06/03/1975 |
| From: | Rigler D Atomic Safety and Licensing Board Panel |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002120952 | |
| Download: ML19329C235 (8) | |
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1975 >J2 UNITED STATES OF AMERICA JUN 3 NUCLEAR REGULATORY COMMISSION e,
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j Before the Atomic Safety and Licensing Board
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In the Matter of
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THE TOLEDO EDISON COMPANY and
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THE CLEVELAND ELECTRIC ILLUMINATING
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COMPANY (Davis-Besse Nuclear Pcwer Station,
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Unit 1)
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Docket Nos. 50-346A THE CLEVELAND ELECTRIC ILLUMINATING
)
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50-441A (Perry Nuclear Power Plant,
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Units 1 and 2)
)
MEMORANDUM AND ORDER OF THE BOARD WITH RESPECT TO SPECIAL MASTERS RECEIPT OF AFFIDAVIT BY DONALD HAUSER OF MAY 22, 1975 RELATING TO PRIVILEGED DOCUMENTS On May 15 1975 the Board issued an order granting in part and denying in part Applicants' motion for leave to file an additional response on claims of privilege.
By the terms of l
that order, Applicants were permitted to file an affidavit limited to a description of the authors and recipients of the documents for which privilege was claimed, their legal qualifi-cations and their corporate positions.
Applicants' disavowed any intent to submit legal argument in the text of the affidavit and the Board specifically rejected the inclusion of legal arguments in the affidavit.
Subsequently, the Board received an affidavit dated May 22, 1975 by Donald H. Hauser, Corporate Solicitor of Applicant Cleveland Electric Illuminating Company (CEI).
The affidavit was so02120162 M
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, 66 pages in length and discussed virtually every document as to which privilege previously had been claimed.
Applicant withdrew its claim of privilege with respect to a limited number of these documents.
On Friday, May 30 at 3:00 p.m.,
a conference telephone call initiated by counsel for the City of Cleveland (City) was 2
accepted by the Chairman of the Board.
All parties tc these pro-ceedings were represented on the conferencecall except for AMP-o which has not taken any position with respect to the privileged documents in controversy.
The purpose of th.e telephone call was stated to be an oral motion to strike the Hauser affidavit on grounds that it exceeded the grant of authority contained in the Board's order of May 16, 1975.
The City of Cleveland was joined in its objections by the Nuclear Regulatory Commission Staff (Staff) and by the Department of Justice (Justice).
These parties contended that the affidavit contained substantially more informa-tion than Applicant CEI originally had stated to be available.
Specific reference was made to certain of the documents which originally were listed as recipient unknown or author unknown and which, in the Hauser. affidavit, were identified by author or recipient.
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In addition, Justice joined by the Staff and the City objected to the affidavit's conclusory remarks relating to whether certain individuals wars in the corporate "centrol group" and to the factual assertion that certain of the documents were prepared in response to lawyers' requests for advice.
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. The parties moving to oppose receipt of the affidavit stated that the motion was being made orally and by telephone conference call because of the tight time parametars imposed by the Board with respect to the completion of discovery.
It was noted that the opposing parties were scheduled to commence depo-sitions during the next week and that they desired the Master to complete his examination by then, if possible, in order that any documents found not to be privileged might be made available for purposes of witness deposition.
Counsel for Applicant CEI opposed the oral motion to strike and requested the Board to require that any such motion be filed in writing.
Applicant CEI requested an opportunity to reply in writing.
The Chairman stated that he would not rule on the motion prior to consultacion with other members of the Board.
The Board now 'nas had an opportunity to confer with respect to the City's motion.
The Board has decided on its own initiative and pursuant to the City's motion to direct the Master not to accept as fact, solely on the basis of the affidavit, Applicant CEI's contention with respect to whether the author or recipient of the documents for which privilege is claimed are members of a corporate
" control group."
The Master may determine that certain individuals are members of a " control group" if he deems such information to be relevant to his decision, but that determination shall be made on the basis of evidence of record apart from that submitted in the I
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. Hauser affidavit.
Similarly, the Master is directed not to accept as binding assertions in the Hauser effidavit that various docu-ments were prepared in response to requests for advice by counsel.
Such documents indeed may reveal on their face or the record may show that they were prepared pursuant to such request, and the Master then can apply appropriate legal criteria in determining whether any privilege exists.
However, in permitting Applicant CEI to file its supplemental affidavit, it was not the intention i
of the Board to give Applicant CEI an opportunity to avoid any contest with respect to factual conclusions as to whether individuals either were members of the " control group" or were acting pursuant to direction of counsel.
We emphasize that while we sare granting the jo.nt oral motion of the City, Staff and Justice to limit, at least to this degree, we also issue this ruling independently and based upon our own review of the affidavit and the purpose for which we originally permitted to to be untimely filed.
10 CFR S2.730; 10 CFR 52.718; 10 CFR S2.757, The City's oral motion to strike the affidavit in its entirety is denied but the City is granted leave to refile such motion in writing should it desire to do so.
During the course of the conference call, counsel for Applicant CEI indicated that he would accept responsibility for an kamediate reply to any written motion.
Accordingly, should a motion to strike be filed, Applicants are directed to file their answer, by hand, within three days of the receipt of any such motion.
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. The Board indicated in the course of its May 16, 1975 Order permitting filing of the affidavit that it would not delay consideration by the Master of the documents for which privilege is claimed.
Likewise, the Board will not allow the dispute with respect to whether the affidavit as submitted exceeded the scope of the authority to file to delay the Master's consideration.
Accordingly, the Master will continue his review and may utilize the affidavit except as limited herein by Order of the Board.
ATOMIC SAFETY AND LICENSING BOARD P
Nf0 hk Dougl
. Rigle,1 Chairman Dated at Bethesda, Maryland this 3rd day of June, 1975.
m UNITED STATES OF A>! ERICA NUCLEAR RECULATORY CO>t!ISSION In the Matter of
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THE TOLEDO EDISON COMPANY, ET AL.)
Docket No. (s) 50-346A CLEVELAND ELECTRIC ILLQ!INATINC )
50-440A COMPANY
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50-441A
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(Davis-Besse Nuclear Power
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Station, Unit No. 1; Perry
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Nuclear Power Plant, Units 1&2))
CERTIFICATE OF SE?3 ICE I hereby certify that I have this day served the foregoing document (s) upon each person designated on the official service list compiled by the Office of the Secretary of the Cormission in this proceeding in accordance uith the requirements of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Regulatory Cormission's Rules and Regulations.
Dated at Washington,
.C.
this
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day of
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Of ficc of /c!(e Secretary of the Cer=Sssion S
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r UNITED STATES OF AMERICA NUCLEAR REGULATORY CO:::!ISSION In the Matter of
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Docket No.(s) 50-346A CLEVELAND ELECTRIC ILLUMINATING
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50-440A COMPANY
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50-441A
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(Davis-Besse Nuclear Power
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Station, Unit No. 1; Perry
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Nuclear Power Plant, Units 1&2) )
SERVICC LIST
- Douglas Rigler, Esq., Chairman Alan S.Rosenthal, Esq., Chairman Foley, Lardner, Hollabaugh Atomic Safety and Licensing and Jacobs Appeal Board 815 Connecticut Avenue, N. W.
U. S. Nuclear Regulatory Commission Washington, D. C.
20006 Washington, D.C.
20555 John H. Brebbia, Esq.
Mr. Michael C. Farrar Alston, Miller & Gaines Atomic Safety and Licensing 1776 K Street,N. W.
Appeal Board Washington, D. C.
20006 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 John M. Frysiak, Esq.
Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Atomii Safety and Licensing Washington, D. C.
20555 Appeal Boa rd U. S. Nuclear Regulatory Co= mission Joseph Rutberg Esq., Chief Washington, D. C.
20555 Antitrust Counsel for NRC Staff U. S. Nuclear Regulatory Cocsission Honorable Richard W. McLaren Washington, D. C.
20555 Assistant Attorney General Antitrust Division Mr. Abraham Braitman, Chief U. S. Department of Justice Office of Antitrust and Indcnnity Washington, D. C. 20530 Nuclear Reactor Regulation U. S. Nuclear Regulatory Commission Gerald Charnoff, Esq.
Washington, D. C.
20555 Shaw, Pittman, Potts, Trswbridge and Madden Donald _H. Hauser, Esq., Managing 910 - 17th Street, N. W.
Attorney Washington, D. C.
10006 Cleveland Electric Illuminating Company Leslie Henry, Esq.
-Pub,lic Square Fuller, Henry, Hodge & Snyder Cleveland, Ohio 44101 300 Madison Avenue Toldeo, Ohio 43604 O
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50-346A, -440A, -44.1A P:go 2 John C. Engle, President Honorable Christopher R. Schraff AMP-0, Inc.
Assistant Attorney General Municipal Building Environmental Law Section 20 High Street 351 East Broad Street Hamilton, Ohio 45012 Columbus, Ohio 43215 George B. Crosby, Esq.
Wallace L. Duncan, Esq.
Director of Utilities Jon T. Brown, Esq.
Piqua, Ohio 45350 Duncan, Brown & Palmer 1700 Pennsylvania Avenue, N.W.
William M. Lewis, Jr., Esq.
Washington, D. C.
20006 W.M. Lewis & Associates P.O. Box 1383 Lee C. Howley, Esq., Vice President & General Counsel Robert D. Hart, Esq.
Cleveland Electric Illuminating Assistant Law Director Company
' City Hall Cleveland, Chio 44114 P. O. Box 5000 Cleveland, Ohio 44101 Reuben Goldberg, Esq.
Arnold Fieldman, Esq.
John Lansdale, Jr., Esq.
1700 Pennsylvania Avenue, N. W.
Cox Langford & Brown Washington, D. C.
20006 21 Dupont Circle, N. W.
Washington, D. C.
20036 David C. Hjelmfelt, Esq.
1700 Pennsylvania Avenue, N. W.
Steven M. Charno, Esq.
Washington, D. C.
20006 Antitrust Division U. S. Department of Justice Honorable Thomas E. Kauper Washington, D. C.
20530 Assistant Attorney General Antitrust Division Melvin G. Berger, Esq.
U. S. Department of Jus tice Antitrust Division Washington, D. C.
20530 Department of Justice Washington, D. C.
20044 Honorable William J. Brown Attorney General Dunkin, Brown, Weinberg & Palmer State of Ohio 1700 Pennsylvania Avenue, N.W.
Columbus, Ohio 43215 Suite 777 Washington, D. C.
20006 Honorable Dwight C. Pettay, Jr.
Assistant Attorney General Director Chief, Antitrust Section Ida Rupp Public Library 30 East Broad Street, 15th Floor Port Clinton, Ohio 43452 Columbus, Ohio 43215 Perry Public Library Honorable Deborah P. Highsmith 3753 Main Street Assistant Attorney General Perry, Ohio 40081 Antitrust Section 30 East Broad Street, 15th Floor Columbus, Ohio 43215
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