ML19329C378

Motion for Certification to Aslab of Appeal of Special Master'S Findings of Privilege.Certificate of Svc Encl

ML19329C378
Person / Time
Site:	Davis Besse, Perry
Issue date:	07/08/1975
From:	Aiuvalasit A, Berger M, Charno S JUSTICE, DEPT. OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002130745
Download: ML19329C378 (5)

Text

i UNITED STATES OF AMERICA

/ NUCLEAR REGULATORY COMMISSION BEFORE'THE ATOMIC SAFETY AND LICENSING BOARD In the Matter Of )

)

The Toledo Edison Company and )

The Cleveland Electric Illuminating ) Docket No. 50-346A Company , )

(Davis-Besse Nuclear Power Station, )

Unit 1) )

)

The Cleveland Electric Illuminating ) Docket Nos. 50-440A Company, et al. ) and 50-441A (Perry Nuclear Power Plant, )

Units 1 and 2) )

MOTION FOR CERTIFICATION TO THE ATOMIC SAFETY AND LICENSING APPEAL BOARD OF AN APPEAL OF THE SPECIAL MASTER'S FINDINGS OF PRIVILEGE Pursuant to Rules 2.730(f) and 2.785 (b) of the Commission's Rules of Practice (10 C.F.R. 52. 730 (f) and 10 C.F.R. S2.785(b)),

the Department of Justice (" Department") moves for Certification to the Atomic Safety and Licensing Appeal Board of an appeal of the Report of Special Master dated June 19,.1975 and the Order of the Special Master dated June 30, 1975 and found in the trans-cript of the proceedings before the Special Master of June 30, 1975. Pursuant to Rule 2.730(g) of the Commission's Rules of Practice (10 C.F.R. 2. 730 (g) ) , certification of an appeal would not serve to delay the proceedings.

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l Tho Depar...cnt requsstc certificatio of an appsal b:ccuco of errors of law contained in the findings of the Special Master. The Special Master made findinge of the attorney-client privilege for do,cuments which had been claimed under the work-product exclusion and findings of work-product exclusion for documents which had been claimed under the attorney-client privilege. Because the privileges granted had not been claimed, the Department was not

. afforded the opportunity to present evidence and points of law in opposition to Applicant's claims of privilege. Thus, the Depart-ment was denied due process of law.

Certification of this Appeal is necessary so that the Depart-ment may be provided with any documents which the Appeals Board finds were erroneously granted privilege, before proceeding with its case in chief. Denial of certification would preclude the Departraent obtaining documents necessary for its preparation for this litigation.

For the foregoing reasons, the Department respectfully moves  ;

this Board for certification to the Atomic Safety and Licensing Appeal Board of an appeal of the Special Master's findings of privilege.

Respectfully submitt d, a

r- - }'/( . /_ w STEVEN M. CHARNO

. 0l<nst M $%,p._ , -

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MELVIN G. BERGER

. de h .h. d a a s A.

ANTHONY G4 AIUVALASIT,VJR.  !

Jaakk.

(/hNET R. URBAN W

Attorneys, Department of Justice Washington, D.C. 20530 July 8, 975 l

I t

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .

• BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter Of )

)

The Toledo Edison Company and )

The Cleveland Electric Illuminating ) Docket No. 50-346A Company )

(Davis-Besse Nuclear Power Station, )

Unit 1 )

) .

The Cleveland Electric Illuminating ) Docket Nos. 50-440A Company, et al. ) and 50-441A (Perry Nuclear Power Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of MOTION FOR CERTIFICATION TO THE ATOMIC SAFETY AND LICENSING APPEAL BOARD OF AN APPEAL OF THE SPECIAL MASTER'S FINDINGS OF PRIVILEGE have been served upon all of the parties listed on the attachment hereto by deposit in the United States mail, first class, airmail or by hand delivery, this 9th day of July 1975.

1 7.it C. h h. fh brlM

' f JANET R. URBAN Attorney, Antitrust Division Department of Justice 1 l

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ATTACHMENT Douglas Rigler, Esquire Chairman Benjamin H. Vogler, Esquire At'omic Safety and Licensing Roy P. Lessy, Jr., Esquire Board Office of'the General Counsel Foley, Lardner, Hollabaugh Nuclear Regulatory Commission

& Jacobs Washington, D.C. 20555 815 Connecticut Ave., N.W.

Washington, D.C. 20006 Gerald Charnoff, Esquire William Bradford Reynolds, Esquire

' John H. Brebbia, Esquire Shaw, Pittman, Potts & Trowbridge Atomic Safety and Licensing 910 Seventeenth Street, N.W.

Board Washington, D.C. 20006 Alston, Miller & Gaines 1800 M Street, N.W. Lee C. Howley, Esquire Washington, D.C. 20036 Vice President & General Counsel The Cleveland Electric John M. Frysiak, Esquire

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Illuminating Company Atomic Safety and Licensing Post Office Box 5000 Board Panel Cleveland, Ohio 44101 Nuclear Regulatory Commission Washington, D.C. 20555 Donald H. Hauser, Esquire Corporate Solicitor Atomic Safety and Licensing The Cleveland Electric Board Panel Illuminating Company Nuclear Regulatory Commission Post Office Box 5000 Washington, D.C. 20555 Cleveland, Ohio 44101 Frank W. Karas John Lansdale, Jr., Esquire Chief, Public Proceedings Cox, Langford & Brown Staff 21 Dupont Circle, N.W.

Offi_e of the Secretary Washington, D.C. 20036 Nuclear Regulatory Commission Washington, D.C. 20555 Chris Schraff, Esquire Office of Attorney General Abraham Braitman State of Ohio Office of Antitrust and State House Indemnity Columbus, Ohio*

43215 Nuclear Regulatory Commission Washington, D.C. 20555 Karen H. Adkins, Esquire Assistant Attorney General Herbert R. Whitting, Esquire. Antitrust Section Robert D. Hart, Esquire 30 East Broad Street Law Department 15th Floor City Hall Columbus, Ohio 43215 Cleveland, Ohio 44114 Leslie Henry, Esquire l Reuben Goldberg, Esquire Fuller, Henry, Hodge David C. Hjelmfelt, Esquire & Snyder 1700 Pennsylvania Avenue, N.W. 300 Madison Avenue Suite 550 Toledo, Ohio 43604 Washington, D.C. 20006

Thomas A. Kayuha, Esquire Ohio Edison Company 47 North Main Street ,

Akron, Ohio 44308 David M. Olds, Esquire Reed, Smith, Shaw & McClay 747 Union Trust Building .

Pittsburgh, Pennsylvania 15219 Mr. Raymond Kudukis Director of Utilities City of Cleveland 1201 Lakeside Avenue Cleveland, Ohio 44114 Wallace L. Duncan, Esquire Jon T. Brown, Esquire Duncan, Brown, Weinberg

& Palmer 1700 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 Edward A. Matto, Esquire Assistant' Attorney General i Chief, Antitrust Section l 30 East Broad Street j 15th Floor Columbus, Ohio 43215 ]

l Richard M. Firestone Assistant Attorney General Antitrust Section 30 East Broad Street 15th Floor i Columbus, Ohio 43215 ,

Victor F. Greenslade, Jr., Esquire Principal Staff Ccunsel The Cleveland Electric -

Illuminating Company Post Office Box 5000 Cleveland, Ohio 44101 D

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