ML19329C460
| ML19329C460 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 09/12/1975 |
| From: | Aiuvalasit A, Berger M, Charno S JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002140840 | |
| Download: ML19329C460 (10) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY CO CIISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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The Toledo Edison Company
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The Cleveland Electric Illuminating
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Docket No. 50-346A Company
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(Davis-Besse Nuclear Power Station)
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The Cleveland Electric Illuminating
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Dccket Nos. 50-440A Company, et al.
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and 50-441A (Perry Plant, Units 1 and 2)
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The Toledo Edison Company, et al.
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Docket Nos. 50-500A (Davis-Besse Nuclear Power S ta tion,
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and 50-501A Units 2 and 3)
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MOTION SY THE DEPART:: NT CT JUSTICE TO CIIAEGE PRCCZDUPAL DJdES Pursuant to Rule 2.73 0 of the Ccmmission's Rules of ?? Ictice (10 C.F.R. 52.730),. the Departnent of Justice hereby moves the Licensing Board to adjust the Procedural Dates set forth in the Licensing Board's Ruling en Motion of the Department of Justice for Reconsideration of Changes in Procedural Dates, dated August 21, 1975, to the schedule hereinaf ter set forth.
This revised schedule would move back all procedural dates in the present schedule by approximately one month.
Although the' Department has attempted to comply with the schedule of procedural dates set forth in the Licensing Board's August 21, 1975 Crder, it now finds that additional time is s'
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required because of a large number of unforeseen and unavoidable
' obstacles which have extended the time required for proper prep-aration of this case.
These obstacles are set forth below.
1.
Applicants estimated that in Perry they originally pro-duced 1,208,000 pages of documentary materials for the Department (See Applicants' Motion for A Protective Order, filed January 2, 1975).
The Department was required first to do a rough screening of these documents and then do a finer screening in order to gather together the documents which would be carefully reviewed and digested.
The result of this was about 90,000 documents which the Department has had to categorize and digest.
This has been an extremely time-consuming task, especially when the Depart-ment has had to concurrently prepare for depositions, attend depositions, continue our investigation, apply for and reply to discovery requests in the proceeding concerning the Davis-Besse Plant (Units 2 and 3), and respond to a large number of Motions which Applicants have filed.
2.
In addition, Applicants' ccmpletion of production of documents for the Perry proceeding has been extremely slow.
For example, it was not until September 9, 1975 that Applicants finally produced the last of the documents responsive to our 1974 discovery request.
(These specific documents were produced in response to a written request made on July 26, 1975.
It should be noted, however, that oral requests for the same information were made during various depositions prior to July 26, 1975.)
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3.
The number of depositions taken by the various parties also turned out to be considerably grnater than originally expected.
A total of 63 depositions were taken over a period of more than three months.
Since the Department had attorneys present at each of these depositions and since these attorneys also had to prepare for these depositions in advance, little digesting of the depositions or of documents obtained by discovery could be accom-plished until August 1, 1975.
The sheer volume of the depositions has made digesting considerably more time-consuming than originally anticipated.
In addition, the last of the deposition transcripts was not received by the Department until September 8, 1975.
- Thus, completion of the digesting of depositions has been an impossible task, not only because of their volume, but also because some of them have only recently been received.
4, Since the middle of March 1975, the Department has found it necessary to prepare more than a dozen filings (see Exhibit A) concerning various aspects of this proceeding.
Most of the major filings have revolved around the privileged document question, which is still not resolved, and Applicants' repeated attempts to place the nexus question before the Board under the guise of various other issues, e.c.,
expediting the hearing, dis-missal of AMP-Ohio, etc.
The large amount of time and effort involved in these filings has also prevented the Department from devoting all of its time to other, more meaningful aspects of this Case.
5, For the foregoing reasons, the Department has not been in a position to place the complete factual particulars of our 3
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case before our expert witnesses until quite recently.
This situation has been exacerbated still further by circumstances I
wholly beyond the Department's control.
i The Department has retained Dr. Harold Wein, a professor at Michigan State University, as its expert econcmic witnese in this proceeding.
Although Dr. Wein was originally contacted concerning testimony in this proceeding on or about April 11, 1975, he was I
unable to devote any time to this matter until Augus*. of 1975 i
because of his involvement as an expert witness in the Alabama j
Power Company hearing before the NRC.
Thus, in May of this year, Dr. Wein started to prepare for his appearance as a witness in the i
- i Alabama' proceeding.
This preparation continued throughout June.
In July, Dr. Wein appeared in that proceeding and was kept on the i
j wita. ass stand by cross-examination for over ten days, finally con-cluding on July 31, 1975, After a brief vacation, Dr. Wein started to work on his testimony in this proceeding, In the course of his preparation, i
Dr. Wein has requested that certain information be generated by 1
j the Department's expert engineering witness, Some of this informa-tion will take considerable time to generate,and then Dr. Wein will have to review it for possible incorporation int 6 his own t?stimony.
In view of this unforeseen development, it is estimated that approximately a month will be needed to complete the prepa-ration of expert testimony.
6.
Finally, discovery obtained from the Applicants, the j
review of which could only be ccmpleted a week ago for the reasons 1
j noted above, has resulted in disclosure of evidence of many i
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anticompetitive practices in addition to those known when the schedule of procedural dates was originally established.
(See Answers to Applicants' Interror'. tories and Request for the Production of Documents for the Department of Justice, September 5, 1975.)
Additional time is' required in order to integrate this evidence into the Department's presentation.
In addition to the other reasons for the requested thirty-day revision through-out the schedule, this extra time -- a relatively small extension in the context of this case -- will allow the Department to adequate'ly develop this new evidence so that the Lice.9 sing Board may protect the public interest with respect to these additional activities.
7.
For the foregoing reasons, the Department requests that the Board adopt the following schedule:
PROPOSED SCHEDULE Parties Other Than Applicants Pile Direct Written Testimony of Expert Witnesses October 28 Applicants File Direct Written Testimony of Expert Witnesses lovember 4 All Parties File Pretrial Briefs
.7vember 17 Hearing Begins December 1 8.
The Department asks that this motion be placed on the agenda for the prehearing conference scheduled for September 18, 5
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1975 and urges the Board to adopt the schedule proposed l
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Respectfully submitted, v/f.
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STEVEN M.
CHARNO 1
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MELVIN'G. BERGER v
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m ANTHONY G.
AIUVALASIT, JR.
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Attorneys, Department of Justic September 12, 1975 J
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s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
The Toledo Edison Company
)
The Cleveland Electric Illuminating
)
Docket No. 50-346A Company
)
(Davis-Besse Nuclear Power Station)
)
)
The Cleveland Electric Illuminating
)
Docket Mos. 50-440A Company, et al.
)
and 50-441A (Perry Plant, Units 1 and 2)
)
)
The Toledo Edison Company, et al.
)
Docket Nos. 50-500A (Davis-Besse Nuclear Power Station,
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and 50-501A Units 2 and 3)
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CERTIFICATE OF SERVICE I hercby certify that copics of MOTION BY THE DEPARTMENT OF JUSTICE TO CHANGE PROCEDURAL DATES 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 15th day of September 1975.
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4 STEVEN M.
CHARDO Attorney, Antitrust Divisica Department of Justice
Thomas A.
Kayuha, Esquire James 9.
Davis, Esquire Ohio Edison Company Robert D. Hart, Esquire 47 North Main Street Director of Law 7.kron, Ohio 44308 City of Cleveland 213 City Hall David M.
Olds, Esquire Cleveland, Ohio 44114 Reed, Smith, Shaw & McClay 747 Union Trust Building Pittsburgh, Pennsylvania 15219 Mr. Raymond Kudukin Director of Utilities City of Cleveland 1201 Lakeside Avenue Cleveland, Ohio 44114 Wallace L.
Duncan, Esquire Jon T Brown, Esquire Duncan, Brown, Weinberg a
& Palmer 1700 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Ecward A.
Matto, Esquire Assistant Attorney General Chief, Antitrust Section 30 East Broad Street 15th Floor Columbus, Ohio 43215 Richard M.
Firestone Assistant Attorney General Antitrust Section i
30 East Broad Street 15th Floor Columbus, Ohio 43215 Victor F.
Greenslade, Jr.,
Esquire Principal Staff Counsel The Cleveland Electric Illuminating Company Post Office Sox 5000 Cleveland, Ohio 44101 Robert P.
Mone, Esquire George, Greek, King, McMahon
& McConnaughey Columbus Center 100 East Broad Street Co lumbus, Ohio 43215 I
ATTACHMENT
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Douglas Rigler, Esquire Andrew Popper, Esquire Chairman Benjamin H.
Vogler, Esquire Atomic 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 Ivan W.
Smith, Esquire Shaw, Pittman, Potts & Trowbridge Atomic Safety and Licensing 910 Seventeenth Street, N.W.
Board Washington, D.C.
20006 Nuclear Regulatory Commission Washington, D.C.
20555 Lee C. Howley, Esquire Vice President & General Counsel The Cleveland Electric John M.
Frysiah, Esquire Illuminating Company Atomic Safety and Licensing Post Office Box 5000 Board 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 & Brcwn Staff 21 Dupont Circle, N.W.
Office of the Secretary Washington, D.C.
20036 Nuclear Regulatory Ccamission Washington, D.C.
20555 Chris Schraff, Esquire Office of Attorney General l
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 An trust Section Robert D.
Hart, Esquire 30 East Broad Street Law Department 15th Flcor City Hall Columbus, Ohio 43215 Cleveland, Ohio 44114 Leslie Henry, Esquire Reuben Goldbarg, Esquire Fuller, Henry, Hcdge David C.
Hjelmfelt, Esquire
& Snyder 1700 Pennsylvania Avenue, N.W.
300 Madison Avenue Suite 550 Toledo, Ohio 43604 Washingtcn, D.C.
20006 I
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EXHIBIT A Among the varicus filings by the Department, have been the following:
1.
Interrogatories of the Department of Justice Relating to Claims of Attorney-Client Privilege and Work Product Exclusion, filed March 14, 1975.
2.
Answer of the Department of Justice in Opposition to Applicants' Motion Entitled " Proposal for Expediting The Antitrust Hearing Process," filed April 7, 1975.
3.
Motion by the Department of Justice For Order Concerning Discovery, filed April 23, 1975.
4.
Memorandum of the Department of Justice in Support of Claims of Privilege, filed April 25, 1975.
5.
Reply Memorandum cf the Department of Justice on Applicants' Claim of Privilege, filed May 2, 1975.
6.
Reply of the Department of Justice in Opposition to Appli-cants Argument in Support of its Propcsal For Expediting the Antitrust Hearing Process, filed May 12, 1975.
7 Request of the Department of Justice for Interrogatories And For Production of Documents by Applicants, filed May 23, 1975.
8.
Memorandum of Points and Authorities of Department of Justice With Regard to the Decision of the Special Master, filed June 27, 1975, 9.
List of Challenges ro the Special Master's Findings of Privilege, filed June 27, 1975.
10.
Motion for Certification to the Atomic Safety and Licensing Appeal Board of an Appeal of the Special Master's Findings of Privilege, filed July 8, 1975.
11.
Answers to Applicants' Interrogatories and Request for the Production of Documents for the Department of Justice, filed September 5, 1975.
12.
Memorandum of the Department of Justice ca Exceptions to the Ruling of the Atcmic Safety and Licensing 3oard, due September 12, 1975, 13.
Reply to App 3. cants' Renewed Motion for Summary Disposition, due Septembe.- 12, 1975.
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