ML19329C338
| ML19329C338 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 12/20/1974 |
| From: | Lessy R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| NUDOCS 8002130703 | |
| Download: ML19329C338 (10) | |
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UNITED STATES OF AMERICA j
ATOMIC EllERGY. COMMISSION
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BEFORE THE ATOMIC. SAFETY NID LICENSING BOARD In the Matter of
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-J THE TOLEDO EDISON COMPANY and
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'1 THE CLEVELRID ELECTRIC ILLUMINATING
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AEC Docket No. 50-346A j
COMPANY
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(Davis-Besse Nuclear Power Station)
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THE CLEVELAND ELECTRIC ILLUMIflATING )
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(Perry Nuclear Power Plant,
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AECD6cketNo.50-440A Units 1 and 2)
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50-441A E,
REQUEST FOR ORAL ARGUMEflT BY
. AEC REGULATORY STAFF Gil ITS' MOTION TO COMPEL PR000CTI0ft AND DELIVERY OF DOCUMENTS AND AflSWER TO APPLICANTS' REPLY TO STAFF'S MOTI0il The Atomic Energy Comraission Regulatory Staff (hereinafter " Staff")
pursuant to Rule 2.730(d) of the Comission's Rules of Practice,10 CFR f2.730(d) respectfully requests oral argument on its " Motion For An I
Order Compelling Production And Delivery Of Documents Requested Of j
Ap;Mcants" filed by Staff on December 5,1974 This request to have full arguments hea~rd on the record is being made because of tne serious consequences, as set forth hereunder, of applicants' disregard of Mj, (1) the Comission's Rules of Practice, (ii) this Board's Order "On Objections To Interrogatories And Document Requests", and (iii) the 4
express provisions of the August 23, 1974 " Joint Requbst of the AEC Regulatory Staff and the U. S. Department of Justice for Interrogatories j
' and for Production of Documents" ("the joint request"). Appl,icants' l
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conduct will seriously and materially delpy,the Board's Schedule, foreclose the possibility of any trunca$fon of this hearing, and under-mine the hearing process in this matter.
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l BACKGROUND a
i On August' 23, 1974, the Department of Justice and the AEC Regu-
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latory Staff filed the Joint request.
On September 9,1974, applicants filed " Applicants' Objections I
to the Joint Request of the AEC Staff and the Department of Justice...
i for Production of Documents." Applicants included in that filing certain objections to the production of documents but did not object to the specific request for the production and delivery of certified
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. copies of all documents requested to both Staff and the Department of Justice.
n On October 23, 1974, applicants-moved for a thirty day.extensien
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of time within which to produce documer.ts and answer interrogatories "in order to assure a proper and complete document production" (Motion For Extension of Time, p. 2).
Said motion was granted by the Board.
On November 4,1974,.the Board issued the most recent revised schedule for the stages of this proceeding, which provided that Novem-ber 30,1974, was to be the date for completion of all documentary discovery and responses to_ interrogatories.,1]
j 1/ Because November 30, 1974, was a Saturday, the actual date upon which discovery responses were made was December 2,1974.
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- On D" cember 3,1974, applicants delivered their responses to the e
Join t ' Request. Applicants (1) faiNd to produce and deliver certified j
d copies of documents as requested in the Joint Request, (2) refused to
'l; perform certain activities related to document production, and (3) 5 supplied unnot~arized, evasive and inccmplete answers to interrogatories propounded in the Joint Request. Consequently, Staff filed its De-cember 5,1974 "Motien... For An Ordi.r Ccmpelling Production And Delivery Of Documents Requested By Applicants" whi5h motion is pre-sently. awaiting disposition by the Licensing Board.
UNCONSCIONABLE DELAY
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.y Applicants indicate that they have had "a relatively short time period" (Applicants Reply To Motions Of The AEC Regulatory Staff...
To Produce Documents dated December 6, 1974, p. 3) with which to meet Ltheir obligations en discovery. This position is incredulops as al-
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most four months have elapsed since the joint request was issued.
Not once during that period did applicants indicate to the Board or
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Staff that (i) the time allotted to produce documents was insufficient, or (ii) that they had no intention of ccmplying with the express pro-u
".j visions of the joint request.
Instead, one day late,Eapplicants hand-delivered piecemeal, un-r.
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-2/ Applicants hana delivered answers to the joint request on December 3,1974, dated December 2,1974, the latter being final date for completion of doc-j umentary discovery pursuant to this Board's Order of November 4, 1974.
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4-notarized responses containing no documents and the statement that doc-uments were available in five different cities in Ohio and Pennsylvania,
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listing the names of five persons through whom " access to this material 1
,4 can be arranged."
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Further ('i) no ' dentification or description was made of documents i
withheld as privileged pursuant to the Board's Order, (ii) no listing was prepared showing documents no longer in ths'posession of applipants.
as requested, (iii) no listing was prepared showinh which documents were produced in iesponse to particular paragraphs of the Joint Request.
APPLICAtlTS' f:Off-CCMPLIAfiCE WITH COMf1ISSI0fl RULES Paragraph two of page 1 of the Joint Request provides as follows:
Responses to the interrogatories and certified cooies of the requested documents shall be served upon the AEC Regulatory
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Staff at the.0ffice of theTeneral Counsel, U. S. Atomic Energy Comission, Regulation, Washington, D. C.
20545 and upon the U. S. Department cf Justice, Washington,,0.
C.
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20545 (emphasis supplied).
Section 2.741(d) of the Commission's Rules provides in pertinent part:
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The party upon whom the request is served shall serve on the party submitting the request a written response within e.
thirty (days) after the service of the request. The re-sponse shall state, with respect to each item or category, that inspection and related activities will be permitted as requested unless the request is ocjected to, in whicn case j
the reasons for objection shall be stated.
(emphasis supplied)
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}.1 On September 4,1974, applicants filed objections to the Joint i
Request. A subsequent pre-hearing conference was held on discovery.
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The Board, considered and ruled in detai) bn* objections and other matters
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. pertaining to discovery. Applicant,s, h'owever, did not object at any 4
j time to the specific request for the production and delivery of certi-1 l
.fied copies of requested documents to Staff and the Department of
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- Justice.
In " Applicants' Reply To Motions Of The AEC Regulatory Staff...
To Produce Documents..." dated December 16, 1974 applicants, without citing any Commission rule, any Commission case, or any judicial or administrative decision, argue that "related activities" in the above
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quoted language in 10 CFR 32.741(d) does not include the right to
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require production, copying, and delivery of documents as requested.
.i Such an attempted delinitation of the phrase "related activities" I
is without precedent in Comission regulations or Ccmission practice.
Staff proposes to demonstrate to the Board during oral argument,ex-amples of Comission licensing proceedings where production
- and delivery of certified copies of requested documents have been produced j
when requested.
In such proceedings, various applicants produced and delivered a very large number of documents as requested.
pj In addition, the Commission's Rules of Practice are expressly
. structured, for the very purpose of avoiding untimely objections on discovery, to require all objections to the scope and manner of dis-i
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- i covery to be made within 30 days after s'ebice of the request.
It is l
Staff's position that for applicants to object in the fom of a failure to produce and deliver any documents almost four mo'nths after the joint request constitutes both an unconscionable delay and a disregard of die Commission's Rules of Practice.
In light of statements made by appli-cants expressing their desire to expedite this proceeding, it is difficult to understand their current position with regard to discovery.
If, for example, applicants had expressed their refusal to produce and i
deliver documents as requested in August, September, October, or even
-j November, both Staff and the Board could have effectively dealt with
-J the issue of situs of documents produced without materially delaying and/or derailing the hearing schedule.
If applicants position were to be sustained now, in addition to the time spent in arguing the issue,, Staff, and the Department of Justice may be required to spend many additional months in five cities in Ohio and Pennsylvania, reviewing, screening, and xeroxing documents, thus prohibiting the orderly, efficient and econcmical processing of this case.
It is the position of the regulatory Staff that this Board cannot pemit applicants at this stage in the proceedings to place the burden of time, personnel, and expense on Staff and the Department of Justice.
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' APPLICANTS BL'RDEtt
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l miliar " burden" argument. Applicants claim that " hundreds of thousands" i
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of documents have been " collected" over.relatively short time periods.
This Board must decide whether applicants' conduct, manner, and timing precludes their reliance on the burden argument.
Staff is of the view that in order to preserve (i) the integrity of the Ccamission's Rules,
.i (ii) the Congressional mandate of expeditious prelicensing a~ntitrust
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review, (iii) full compliance with Orders of Atomic Safety and Li-censing Boards and (iv) the orderly conduct of Cicensing Hearing in i
general, that this. Board should not pemit applican'ts to success-
. l fully utilize a burden argument at this stage of this proceeding.
A brief more fully sGting forth the position of Staff will be filed no later than January 2,1975.
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For the reasons stated Staff respectfully requests oral argument on its December Sch " Motion To Compel Production And Delivery of
. Documents" at the earliest possible date.
Respectfully submitted, j
A4, Roy P.# Lessy,Jr0'd'
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Counsel for AEC Regulatory i*
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Staff f
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t Dated: December 20, 1974 l (-
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.d UNITED STATES OF AMERICA i
o' ATOMIC ENERGY COMMISSION BEFORE THE ATOMIC _ SAFETY AND LICENSING BOARD
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3 In the Matter of 1
THE TOLED0 EDISON COMPANY and J
THE CLEVELAND ELECTRIC ILLUMINATING 1
COMPANY
'i (Davis-Besse Nuclear Power Station)
AEC Dkt. Nos. 50-346A 50-440A THE CLEVELNt0 ELECTRIC ILLUMINATING 50-441 A COMPANY, ET AL.
(Perry Nuclear Power P1 ant, I! nits 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of REQUEST FOR ORAL ARGUNEilT BY AEC REGL'LA-TORY STAFF Oil ITS' MOTION TO CC 'PEL PRODUCTION NtD DELIVERY OF DOCUMEi!TS AND ANSWER TO APPLICAi!TS' REPLY TO STAFF'S l'0 TION, dated December 20, 1974, in the captioned matter, have been served upon the following by deposit in the United States mail, first class, or air mail, this 20th day of December 1974:
John B. Famakides, Esq., Chairman Docketing and Service Section Atomic Safety and Licensing Board Office of 'the Secretary U. S. Atomic Energy Commission U. S. Atomic Energy Cccmission Washington, D. C.
20545 Washington, D. C.
20545 John H. Brebbia, Esq.
John Lansdale. Esq.
Y.
Atomic Safety and Licensing Board Cox, Langford & Brown Alston, Miller & Gaines 21 Dupont Circle, N. W.
1776 K Street, N. W.
Washington, D. C.
20036 Washington, D. C, 20006 Joseph J. Saunders, Esq.
.l Douglas Rigler Steven Charno, Esq.
Hollabaugh & Jacobs Antitrust Division Suite 817 Departrent of Justice Barr Building Washington, D. C.
20530 910 17th Street, N. W.
Washington, D. C.
20006 Reuben Goldberg, Esq.
David C. Hjelmfelt, Esq.
Atomic Safety and Licensing 17vd Pennsylvania Avenue, N. H.
t Board Panel-Washington, D. C.
20006 c~!
U. S. Atomic Energy Commission Washington, D. C.
20545 Frank R. Clokey, Esq.
Special Assistant Attorney General Y
Room 219, Towne House Apartments Harrisburg, Pennsylyania 17105 j
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Herbert R. Whiting, Director Dwight C. Pettay, Jr.
.j Robert D. Hart, Esq.
,, Assistant Attorney General Chief, Antitrust Section i
Department of Law j
1201 Lakeside Avenue 30 East Broad Street,15th Floor j
Cleveland, Ohio 44114 Columbus, Ohio 43215
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. John C. Engle, President George Chuplis
.l AMP-0, Inc.
Commissioner of Light & Power 4
. Municipal Building City of Cleveland 20 High Street 1201 Lakeside Avenue Hamilton, Ohio 45012 Cleveland, Ohio 44114
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George B. Crosby Deborah Powell Highsmith Director of Utilities Assistant Attorney General Piqua, Ohio 45350 Antitrust Section 30~ East Broad Street,15th Floor Donald H. Hauser, Esq.
. Columbds, Ohio 43215 Managing Attorney The Cleveland Electric Christopher R. Schraff, Esq.
Illuminating Company Assistant Attorney General 55 Public Square Environmental Law Section Cleveland, Ohio 44101 361 East Broad Street, 8th Floor Columbus, Ohio 43215 Leslie Henry, Esq.
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Fuller, Henry, Hodge & Snyder Mr. Raymond Kudukis, Director j
300 Madison Avenue of Public Utilities Toledo, Ohio 43604 City of Cleveland 1201 Lakeside Avenue John R. White, Esq.
Cleveland, Ohio 44114 Executive Vice President
.f Ohio Edison Company Gerald Charnoff, Esq.
47 North Main Street Brad Reynolds, Esq.
Akron, Ohio 44308 Shaw, Pittman, Potts & Trewbridge 910-17th Street, N.W.
Thomas J. Munsch, Esq.
Washington, D. C.
20006 General Attorney Duquesne Light Company 4
435 Sixth Avenue I
Pittsburgh, Pennsylvania 15219 Wallace L. Duncan, Esq.
1 Jon T. Brown, Esq.
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Duncan, Brown, Weinberg & Palmer 1700 Pennsylvania Avenue. N. W.
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Roy P. Le(sy David McNeil Olds Counsel for AEC Regulatofy Staff Reed, Smith, Shaw & McClay i
Union Trust Building l
Pittsburgh, Pennsylvania 15230
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DISTRIBUTION:
.;R'3 Central Files ublic Document Room)
.(Local Public Document Room) 4 A. Braitman, L:0AI-(2)
ASLB J. Rutberg (3)
-B. Vogler ASLAB (5)l Files (2)
OGC Forma i
'0GC Reading File OGC Gmtn File Solicitor, GC H. K. Shapar T. Engelhardt f
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