ML19329C363
| ML19329C363 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 12/20/1974 |
| From: | Lessy R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002130728 | |
| Download: ML19329C363 (9) | |
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G UNITED STATES OF AMERICA
'0 ATOMIC ENERGY C0fEISSIO.'l BEFORE THE ATOMIC SAFETY #10 LICENSI!MBCARD Ch' Q &'cf5
'2' In the Matter of
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THE TOLED0 EDISOff C0!iPANY and
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THE CLEVELAND ELECTRIC ILLUMINATING )
AEC Docket No. 50-346A COMPN 1Y
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(Davis-Besse Nuclear Power Station)
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THE CLEVELAND ELECTRIC ILLUMINATING )
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(Perry Nuclear Pcwer Plant,
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AEC Docket No. 50-440A Units 1 and 2)
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50-441A REQUEST FOR ORAL ARGUMENT BY AEC REGULATORY STAFF 03 ITS' MOTION TO COMPEL PRODUCTION AND DELIVERY OF DOCUMENTS AND AflSWER TO APPLICANTS' REFLY TO STAFF'S MOTION The Atomic Energy Ccmmission Regulatory Staff (hereinafter " Staff")
pursuant to Rule 2.730(d) of the Ccc11ssicn's Rules of Practice,10 CFR 32.730(d) respectfully requests oral argument en its "Motica For An Order Compelling Production And Delivery Of Documents Requested Of Applicants" filed by Staff on December 5,1974 This request to have full argunents heard en the record is being made because of the serious consequences, as set forth hereunder, of applicants' disregard of (i) the Ccalission's Rules of Practica, (ii) this Board's Order "On Objections To Interrogatories And Document Requests", and (iii) the express provisions of the August 23,1974 " Joint Request of the AEC Regulatory Staff and the U. S. Department of Justice for Interrogatories and for Production of Documents" ("the joint request"). Applicants' 8002 130 7 2 /k[
9 2-conduct will seriously and materially delay the Board's Schedule, foreclose the possibility of any truncation of this hearing, and under-mine the hearing process in this matter.
8ACKGROUtlD l
On August 23, 1974, the Department of Justice and the AEC Rcou-
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1atory Staff filed the Joint request.
On September 9,1974, applicants filed " Applicants' Objections to the Joint Request of the AEC Staff and the Department of Justice...
l for Production of Documents." Applicants included in that filing certain objections to the producticn of documents but did not object l
to the specific request for the production and delivery of certified copies of all documents requested to both Staff and the Department of Justice.
On October 23, 1974, applicants moved for a thirty day extension of time within which to produce dccuments and answer interrcgatories "in order to assure a proper and complete document production" (Motien For Extension of Tiire, 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 flovem-ber 30, 1974, was to be the date for completion of all documentary
~ discovery and responses to interrogatories. 1/
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_lj 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 December 3,1974, applicants delivered their responses to the Joint Request. Applicants (1) failed to produce and deliver certified copies of documents as requested.in the Joint Request, (2) rafused to per' form certain activities related to document production, and (3) supplied unnotarized, evasive and incomplete answers to it?rr,gatories propounded in the Joint Request. Consequently, Staff filed its De-cember 5,1974 " Motion... For An Order Ccmpelling Producticli And Delivery Of Documents Requested By Applicants" which motion is pre-sently awaiting disposition by the Licensing Board.
UNCONSCIONABLE DELAY 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 their cbligations on discovery. This positien is incredulous as al-most four months have elapsed since the joint request was issued.
Not once during that period did applicants indicate to the Board or Staff that (i) the time allotted to produce documents was inssfficient, or (11) that tney had r.o intention of ccmplying with the express pro-visions of the joint request.
Instead, one day late 2_/ applicants hand-delivered piecemeal, un-2/ Applicants hand delivered answers to the joint request en December 3,1974, dated December 2,1974, the latter being final date for completion of doc-umentary discovery pursuant to this Board's Order of November 4, 1974.
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, notarized responses containing no documents and the statement that doc-uments were available in five different cities in Ohio and Pennsylvania, listing the names of five persons through whom " access to this material can be arranged."
Further (i) no identification or description was made of C1cuments withheld as privileged pursuant to the Board's Order, (ii) no listing was prepared showing documents no longer in the posessicn of applicants as requested, (iii) no listing was prepared showing which documents were produced in response to particular paragraphs of the Joint Request.
l ApPLICARTS' NON-COMPLIANCE WITH CCM!ilSSION RULES Paragraph two of page 1 of the Joint Request provides as folicws:
Responses to the interrogatories and certified cocies of the requested documents shall be served upcn the AEC Regulatory Staff at the Office of tne Eeneral Counsel, U. S. Atomic Energy Conmission, Regulation, Washington, D. C.
20545 and upon the U. S. Department of Justice, Washingten, D. C.
20545(emphasissupplied).
Section 2.741(d) of the Commission's Rules provides in pertinent part:
The party upon whcm the request is served shall serve on the party submitting the request a written response within thirty (days) after the service of the request. The re-sponse shall state, with respect to each item or category, that inscecticn and related activities will be permitted as requested unless the request is objected to,"In which case '
the reasons for objection shall be stated.
(emphasis supplied)
On September 4,1974, applicants filed objections to the Joint Request. A subsequent pre-hearing conference was held on discovery.
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. The Board considered and ruled in detail on objections and other matters pertaining to discovery. Applicants, howe'ver, did not object at any I
time to the specific request for'the production and delivery of certi-fied copies of requested documents to Staff and the Department of 4
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 Commissien case, or any judicial or administrative decision, argue that "related activities" in the above quoted language in 10 CFR 22.741(d) does not include the right to require production, copying, and delivery of documents as requested.
Such an attempted delimitation of the phrase "related activities" is without precedent in Commission regulations or Commission practice.
Staff proposes to demcnstrate to the Board during oral argument.ex-amples of Ccamission licensing proceedings where production and delivery of certified cepfes of requested documents have been produced when requestad.
In such proceedings, various applicants produced and delivered a very large number of documents as requested.
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-a
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. covery to be made within 30 days after service of the request.
It is Staff's position that for applicants to object in the form of a failure to produce and deliver any documents almost four months after the joint request constitute: both an unconscionable delay and a disregard of the Commission's Rules of Practice.
In light of statements maJe b,* 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 deliver documents as requested in August, September, October, or even November, both Staff and the Board could have effectively dealt with 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 economical proces* ing of this case.
It is the positicn of the regulatory Staff that this Board cannot permit applicants at this stage in the proceedings to place the burden of time, personnel, and expense on Staff and the Department of Justice.
APPLICANTS BURDEN Applicants real argument in their December 16 reply is the fa-miliar " burden" argument. Applicants claim that " hundreds of thousands" O
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1 1 of documents have been " collected" over relatively short time periods.
This Board must decide whether applicants' conduct, manner, and timing Staff is of the view precludes their reliance on the burden argument.
that in order to preserve (i) the integrity of the Comission's Rules, (ii) the Congressional mandate of expeditious prelicensing antitrust review, (iii) full compliance with Orders of Atomic Safety and Li-censing Boards and (iv) the orderly conduct of Licensing Hearing in general, that this Board should not pemit applicants to success-fully utilize a burden argument at this stage of this proceeding.
A brief more fully setting forth the position of Staff will be filed no later than January 2. -1975.
For the reasons stated Staff respectfully requests oral argument on its December 5th "ilotion To Compel Production And Delivery of Documents" at the earliest possible date.
Respectfully submitted,
- 40v1, RoyP.'Lessy,Jr#I Counsel for AEC Regulatory Staff Dated: December 20, 1974 i
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30clET 0 UNITED STATES OF AMERICA
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e-ATOMIC EtlERGY COMMISSION IO$74 BEFORE THE dTOMIC SAFETY AND LICENSING BOARD
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Q,3 6A In the Matter of
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THE TOLEDO EDIS0tl COMPANY and THE CLEVELAtID ELECTRIC' ILLUMINATING COMPAtlY AEC Dkt. Nos. 50-346A (Davis-Besse Nuclear Power Station) 50-440A 50 441A THE CLEVELAND ELECTRIC ILLUMINATIt1G COMPANY, ET AL.
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(Perry Nuclear Power P1 ant,
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Units 1 and 2)
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CERTIFICATE OF SERVICE
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I hereby certify that copies of REQUEST F0R ORAL ARGUMENT BY AEC REGULA-TORY STAFF Oil ITS' t:0 TION TO C0t1PEL PR000CTI0fl Atl0 DELIVERY OF DCCUI!Ei!TS AND AtlSWER TO APPLICANTS' REPLY TO STAFF'S f10TI0il, 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. Farmakides, Esq., Chairman Docketing and Service Section Office of the Secretary Atomic Safety and Licensing Board U. S. Atomic Energy Comission U. S. Atomic Energy Commission Washington, D. C.
20545 Washington, D. C.
2054S John Lansdale, Esq.
John H. Brebbia, Esq.
Cox, Langford & Brown Atomic Safety and Licensing Board 21 Cupont Circle, N. W.
Alston, Miller & Gaines Washington, D. C.
20035 1776 K Street, N. W.
Washington, D. C.
20006 Joseph J. Sw ders, Esq.
Steven Charno, Esq.
Douglas Rigler Antitrust Division Hollabaugh & Jaccbs Department of Justice Suite 817 Washington, D. C.
20530 Barr Building 910 17th Street,f:. W.
Washington, D. C.
20006 Reuben Goldberg, Esq.
David C. Hjelmfelt, Esq.
Atomic Safety and Licensing 1700 Pernsylvania Avenue, N. W.
s Washington, D. C.
20006 Board Panel U. S. Atomic Energy Commission Washington, D. C.
20545 Frank R. Clokey, Esq.
Special Assistant Attorney General Room 219, Towne House Apartments Harrisburg, Pennsylvania.17105 4
Herbert R. Whiting, Director Dwight C. Pettay, Jr.
Robert D. Hart, Esq.
Assistant Attorney General Department of Law Chief, Antitrust Section 1201 Lakeside Avenue 30 East Broad Street,15th Floor Cleveland, Ohio 44114 Colunbus, Ohio 43215 John C. Engle, President' George Chuolis AMP-0, Inc.
Comissioner of Light & Power Municipal Building City of Cleveland 20 High Street 1201 Lakeside t"e'ue Hamilton, Ohio 45012 Cleveland, Ohio 4'114 George B. Crosby Deborah Powell Highsmith Director of Utilities Assis tant Attorney General Piqua, Ohio 45350 Antitrust Section 30 East Broad Street,15th Floor Donald H. Hauser, Esq.
Columbus, Ohio 43215 Managing Attorney The Cleveland Electric Christnpher 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.
Ftriler, Henry, Hodge & Snyder Mr. Raymond Kudukis, Director
. 300 Madison Avenue-of Public Utilities Toledo, Ohio 43504 City of Cleveland 1201 Lakeside Avenue John R. White, Esq.
Cleveland, Ohio 44114 Executive Vice President Ohio Edison Ccmpany 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. L.
20006 General Attorney Duquesne Light Company 435 Sixth Avenue PittsburSh, Pennsylvania 15219 Wallace L. Duncan, Esq.
Jon T. Brown, Esq.
O Duncan, Brown, Weinberg & Palmer m
1700 Pennsylvania Avenue, N. W.
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Washingten, D. C.
20005'
.t Roy P. Le(sy
'f8 David McNeil Olds Counsel for AEC Regulatory Staff Reed, Smith, Shaw & McClay Union Trust Building Pittsburgh, Pennsylvania 15230 O
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