ML19329C435
| ML19329C435 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 07/10/1975 |
| From: | Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002130798 | |
| Download: ML19329C435 (11) | |
Text
, g - 7[
' July 10, 1975 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
)
COMPANY
)
(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-346A Unit.1)
)
50-440A
)
50-441A THE CLEVELAND ELECTRIC ILLUMINATING
)
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
APPLICANTS' REPLY TO MOTIONS SEEKING CERTIFICATION TO THE APPEAL BOARD OF THE SPECIAL MASTER'S RULINGS ON CLAIMS OF PRIVIL3GE 1.
On July 8, 1975, both the City of Cleveland
(" City") and the Department of Justice
(" Department") moved the Atomic Safety and Licensing Board to certify to the Appeal Board the rulings of the Special Master on the claims of privilege asserted by The Cleveland Electric Illuminating
' Company ("CEI").
Applicants respectfully submit that certi-1 fication of these matters would be wholly unwarranted in the circumstances, would, in any event, not lead to a different result from that reached by the Special Master, and, finally, would only serve to delay unjustifiably the already overextended discovery process which the City and the Department have thus far succeeded in prolonging at least one additional month by 80021302f[
m
, proceeding with their deposition interrogation at a snail's pace.
2.
First, and perhaps most significant to the proper disposition of the present motions, the requests for vartification are directly contrary to the express agreement of all counsel, made in a conference call on December 6, 1974, with the then Licensing Board Chairman, John Farmakides, and thereafter accurately reflected in the Board's "Grder Appointing Marshall E. Miller, Master," dated December 10, 1974.
The Board there ruled, without objection from any party, as follows:
The above
[i.e., referral of privi-lege claims to special Master) is ac-complished with the express agreement of the parties to be bound by the de-terminations of the Master.
This was discussed and agreed upon during a tele-phone conference call on December 6, 1974 with the Chairman of this Board.
3.
The City now seeks in its present motion to back away from the aforesaid agreement on the ground that the City failed at the time to appreciate that its agreement to "b3 bound" by the Special Master's ruling would foreclose a pos-sible appeal to the Appeal Board.
Such a post hoc rational-ization is unpersuasive.
The City is already on record as understanding that its express agreement does not bar a chal-lenge to the Special Master's initial decision by means of a request of the Special Master for reconsideration.
It correctly states the unanimous opinion of all counsel -- and of Chairman Rigler (City Motion, p. 10, n. 12) -- that, quite apart from O
S
any agreement on the matter, review by the Licensing Board of possible privileged material would be improper at any
~
time, since "the integrity of the Board should be maintained by shielding it from the contents of documents that might be held to be privileged" (City Motion, p. 10).
To what, then, could an agreement to "be bound" by the Special Master's ruling be directed if not to the matter of possible review of that ruling by the Appeal Board?
By the City's own admission, the agreement did not pertain to possible reconsideration of the initial decision by the Special Master himself; nor did it have any application to possible review by the Licensing Board -- which all parties have recognized would be inappro-priate under any circumstances.
Indeed, it is the recollection of the undersigned counsel, who was a participant in the December 6, 1974 conference call on behalf of Applicants, that the precise focus of the telephone discussions relating to the agreement to "be bound" was directed to the matter of possible Appeal Board review.
4.
In these circumstances, certification is clearly inappropriate.
The Licensing Board set forth in its December 10, 1974 Order the terms of counsel's agreement.
No objection was made at that time to the agreed nature or extent of the Special Master's authority with regard to the claims of privilege.
Not until more than six months later, after the Special Master had ruled in favor of CEI in large part, and i
against the City and the Department, do we hear expressed for the first time some dissatisfaction with the agreement to "be bound".
It is, we submit, too late in the day for the City and the Department now to be permitted to restructure their express agreement in the manner being suggested by these motions so as effectively to make it a nullity.
5.
Nor is the City on any firmer ground in arguing that, by requiring it and the Department to adhere to their express agreement, there is a denial of due process.
In the first place, the process that is due in circumstances such as these does not contemplate any right of review by the Appeal Board.
The Special Master's ruling on claims of privilege is, by nature, interlocutory, and, as such, it is not subject to direct appellate review.
See Section 2.730(f) of.the Com-mission's Rules of Practice.b!
6.
Pursuant to Section 2.718(i) of the Commission's Rules of Practice, a party can request the certification of an interlocutory ruling to the Appeal Board; the disposition of such a request lies in the sole discretion of the Licensing Board.
Where, as here, the parties have expressly agreed i
'in advance to "be bound" by an interlocutory ruling, it is, 1
unquestionably, a proper exercise of discretion for the Licensing Board to deny certification of that ruling to the 1/
See generally In the Matter of Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3),
ALAB-133, RAI 73-6, 438, 440 (June 29, 1973); In the Matter of Consumers Power Company (Midland Plant, Units 1 and 2),
CLI-74-27, RAI-74-7, 4-5 (July 19, 1974).
i t
% Appeal Board.
The due process concept of fundamental fairness is fully satisfied in such circumstances, since the action of-the Licensing Board does not bind the parties to anything more than that to which they expressly agreed --
i,.e.,
the ruling of the Special Master.2/
7.
We would point out, moreover, that the City and the Department have offered no sound reason to believe that further review of the Master's rulings by the Appeal Board would produce a different result.
Much is made of the fact that certain documents protected as privileged by the Master were miscategorized, as being treated as attorney-client confidential communications although claimed by CEI as attorney's work product, and vice-versa.
Both the City and the Department had, and fully availed themselves of, the 1
opportunity to develop this argument, both orally and in sup-plemental briefs, in connection with their motions to the Special Master for reconsideration, heard on June 30, 1975.
As Applicants pointed out at that time in response, virtually all of the documents in this category fit both privilege claims -- i.e., they were both attorney-client materials and work product materials.
The Special Master had access to each of these documents, and, on the basis of his in camera 2/
As to the City's passing remark (p. 12) that it was denied an opportunity to present interrogatories to CEI on the privilege claims, we can only state that the City had ample time to formulate and propound interrogatories in this area, but (unlike the Department of Justice) it chose not to avail itself of this opportunity in a timely manner.
e --
Appeal Board.
The due process concept of fundamental fairness is fully satisfied in such circumstances, since the action of the Licensing Board does not bind the parties to anything more than that to which they expressly agreed --
i.e.,
the ruling of the Special Master.2/
7.
We would point out, moreover, that the City and the Department have offered no sound reason to believe that further review of the Master's rulings by the Appeal Board would produce a different result.
Much is made of the
' fact that certain documents protected as privileged by the Master were miscategorihed, as being treated as attorney-client confidential communications although claimed by CEI as attorney's work product, and vice-versa.
Both the City and the Department had, and fully availed themselves of, the opportunity to develop this argument, both orally and in sup-plemental briefs, in connection with their motions to the l
Special Master for reconsideration, heard on June 30, 1975.
As Applicants pointed out at that time in response, virtually all of the documents in this category fit both privilege claims -- i.e., they were both attorney-client materials and work product materials.
The Special Master had access to each of these documents, and, on the basis of his in camera 2/
As to the City's passing remark (p. 12) that it was dented an opportunity to present interrogatories to CEI on the privilege claims, we can only state that the City had ample time to formulate and propound interrogatories in this area, but (unlike the Cepartment of Justice) it chose not to avail itself of this opportunity in a timely manner.
i
examination, he found them entitled -- both initially and on reconsideration -- to protection from disclosure.
There is no real basis for the sort of wild conjecture indulged by the City and the Department, neither of whom has ever seen the documents in question, that the Appeal Board might decide otherwise.
8.
As to the remaining documents challenged by the City and the Department, the arguments concentrate on certain fact findings by the Special Master.
Applicants would submit that such, findings would not be a proper subject for appellate review even assuming arguendo that certification was deemed to be~ appropriate.
Even if the situation were j
otherwise, however, Applicants are confident that those fact findings would be sustained as unequivocally by the Appeal Board as they were by the Special Master upon the motions for reconsideration.
9.
In this regard, Applicants would simply remind the Licensing Board'that, in meeting its burden of proof, CEI j
i submitted to the Special Master extensive interrogatory answers, a lengthy supplemental affidavit, and every document with respect to which a claim of privilege was asserted.
On the basis of a careful review of this voluminous material, the Special Master was able to ascertain who wrote the document, who was the recipient (s), and what'was the nature of the subject i
matter under discussion.
In some cases, he was not satisfied
'that the document should be accorded privileged status, and he so ruled.
In many other instances, he determined that the communication was privileged.
10.
The Special Master's laborious analysis should not now be lightly cast aside on the basis of some whimsical notion by those dissatisfied with his findings that a similar fact review by others might possibly lead to a different
- result, permissible inferences were drawn by the Special Manter, when and where appropriate, in reaching his decision; they are fully supported by the documents themselves, the interrogatory answers and the Hauser Affidavit (as modified by the Licensing Board).3/
It would thus serve no useful purpose to call upon the Appeal Board to undertake once again the same kind of lengthy examination.
11.
To the contrary, such a wasted exercise would only result in further delay in the discovery process.
The s
City has already dragged out depositions so that it has become necessary to extend discovery at least one full month beyond the July 1,-1975 cut-off date designated by the Licensing Board.
3/
While the City seems to feel that Natta v Hogan, 392 F2d 686-(10th Cir 1968), has some bearing on the matter of certi-fication, there is little substance to the argument.
The doc-uments here which have been challenged by the City as not "having been written by any particular attorney" (id at 694),
are all law firm opinion letters (specifically as identified on their face) on matters of law relevant to, and prepared in connection with, the present litigation.
Such was not even remotely the nature of the documents considered in.Natta v Hogan.
s 4
.- As is all too well known to the City, every day of delay impacts on the. schedule for commencing the operation of Davis-Besse Unit 1 and the construction of Perry Units 1 and 2.
Applicants can ill-afford to miss those projected dates.
The present effort to certify the Special Master's ruling to the Appeal Board, in the face of an explicit and express agreement among counsel not to take such action, can only be viewed as another ploy to interject indirectly into this proceeding an additional element of delay in the hearing process.
Such an effort should not be tolerated by this Board.
12.
For the foregoing reasons, Applicants urge that the Licensing Board deny the requests for certification to the Appeal Board of the Special Master's rulings on CEI's claim of privilege.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By:
wit h4 Wm. Bradford Reynolds\\
Gerald Charnoff Counsel for Applicants Dated:
July 10, 1975.
e r
. 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
)
1 COMPANY
)
(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-346A Unit 1)
)
50-440A
)
50-441A THE CLEVELAND ELECTRIC ILLUMINATING
)
)
(Perry Nuclear Power Plant,-
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing
" Applicants' Reply To Motions Seeking Certification To The Appeal Board Of The Special Master's Rulings On Claims Of 3
Privilege" were served upon all persons listed on the at-tached Service List, by hand delivering a copy of the same to the Chairman and Members of the Licensing Board, and by mailing a copy of the same, postage prepaid, to all others, all on this 10th day of July, 1975.
~
SHAW, PITTMAN, POTTS & TROWBRIDGE i
By:
%C Wm. Bradf ord 'Reynolds' Counsel for Applicants Dated:
July 10, 1975.
-s
~
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
)
COMPANY
)
(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-346A i
Unit 1)
)
50-440A
)
50-441A THE CLEVELAND ELECTRIC ILLUMINATING
)
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
SERVICE LIST Douglas V. Rigler, Esq.
Mr. Chase R. Stephens Chairman, Atomic Safety and Docketing & Service Section Licensing Board Offico of the Secretary Foley, Lardner, Hollabaugh U. S. Nuclear Regulatory Commissior and Jacobs 1717 H Street, N.W.
Chanin Building - Suite 206 Washington, D. C.
20006 815 Connecticut Avenue, N.W.
Washington, D. C.
20006 Benjamin H. Voglor, Esq.
Office of the Executiva Legal John H. Brebbia, Esq.
Director Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commissior Alston, Miller & Gaines Washington, D. C.
20555 1800 M Stroet, N.W. - Suite 1000 Washington, D. C.
20036 Robert J. Vordisco, Esq.
Office of the Executive Legal John M. Frysiak, Esq.
Director Atomic Safety and Licensing U. S. Nuclear Regulatory Commission Board Panel Washington, D. C.
20555 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Roy P. Lessy, Jr., Esq.
Office of the Executive Legal Atomic Safety and Licensing Director Board Panel U. S. Nuclear Regulatory Commissior U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555
,, Joseph J.
Saunders, Esq.
Donald H. Hauser, Esq.
Steven M. Charno, Esq.
Corporate Solicitor Antitrust Division The Cleveland Electric Department of Justice Illuminating Company Washington, D. C.
20530 55 Public Square Cleveland, Ohio 44101 Melvin G. Berger, Esq.
Anthony G. Aiuvalasit, Esq.
Leslie Henry, Esq.
Antitrust Division Fuller, Henry, Hodge & Snyder Department of Justice 300 Madison Avenue Washington, D. C.
20530 Toledo, Ohio 43604 Thomas A.
Kayuha, Esq.
Reuben Goldberg, Esq.
David C.
Hjelmfelt,-Esq.
Ohio Edison Company 47 North Main Street Goldberg, Fieldman & Hjelmfelt Akron, Ohio 44308 1700 Pennsylvania Ave., N.W.
Washington, D. C.
20006 Thomas J. Munsch, Esq.
eneral Attorney Wallace E.
Brand, Esq.
Duquesne Light Company Pearce & Brand 435 Sixth Avenue Pittsburgh, Pennsylvania 15219 0 0 Co eticut Ave., N.W.
Washington, D. C.
20036 David Olds, Esq.
Reed Smich Shaw & McClay
'Wallace L. Duncan, Esq.
Union Trust Building Jon T.
Brown, Esq.
Box 2009 Duncan, Brown & Palmer Pittsburgh, Pennsylvania 15230 1700 Pennsylvania Ave.,
N.W.
Washington, D. C.
20006 John Lansdale, Esq.
Cox, Langford & Brown Frank R.
Clokey, Esq.
21 Dupont Circle, N.W.
Special Assistant Washington, D.
C.
20036 Attorney General Room 219 Edward A.
Matto, Esq.
Towne House Apartments Assistant Attorney General Harrisburg, Pennsylvania 17105 Chief, Antitrust Section 30 E.
Broad Street, 15th Floor Mr. Raymond Kudukis Columbus, Ohio 43215 Director of Public Utilities City of Cleveland Richard M.
Firestone, Esq.
1201 Lakeside Avenue Assistant Attorney General Cleveland, Ohio 44114 Antitrust Section 30 E.
Broad Street, 15th Floor Herbert R. Whiting, Director Columbus, Ohio 43215 Robert D.
Hart, Esq.
Karen H. Akdins, Esq.
Department of Law 1201 Lakesdie Avenue Assistant Attorney General Antitrust Section Cleveland, Ohio 44114 30 E.
Broad Street, 15th Floor John C. Engle, President Columbus, Ohio 43215 AMP-0, Inc.
Christopher R.
Schraff, Esq.
Municipal Building Assistant Attorney General 20 High Street Environmental Law Section Hamilton, Ohio 450l*
361 E.
Broad Street, 8th Floor Columbus, Ohio 43215 i