ML19329C524
| ML19329C524 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 07/27/1975 |
| From: | Lessy R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19329C525 | List: |
| References | |
| NUDOCS 8002140894 | |
| Download: ML19329C524 (3) | |
Text
Q 3,~
._p ~
=
y w~~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of d
THE TOLED0 EDISON COMPANY and THECLEVELANDELECTRICILLUMINATING)
NRC Docket No. 50-346A COMPANY
)
(Davis-Besse Nuclear Power Station)
THE CLEVELAND ELECTRIC ILLUMINATING NRC Docket Nos. 50-440A COMPANY, ET AL.
50-441A (Perry Nuclear Power Plant, Units 1 & 2)
ANSWER OF NRC STAFF TO MOTION TO QUASH SUB00ENA j
OF WAYNE R. MILBURN l
On June 17, 1975 pursuant to 10 CFR 52.720 of the Commission's
' Rules of Practice, the Nuclear Pegulatory Commission Staff (" Staff")
requested this Board to issue three subpoenas, one of which was to Mr. Wayne R. Milburn of the City of Painesville, Ohio. On June 23, 1975, this Board issued the subpoenas one of which was duly served by registered mail on Mr. Milburn.
The first paragraph of page 2 of the subpoena provided as follows:
In accordance with Section 2.720(f) of the Rules of Practice of the Nuclear Regulatory Commission,10 CFR Part 2, you may, by motion oremotly made, and in any event at or before the time specified herein for compliance and uoan notice to Roy P. Lessy, Jr.
Counsel for the Nuclear Regulatory Commission Staff, Was$ington, D.C. 20555, request that this subpoena be quashed or modified if it is unreasonable or reouires evidence not relevant to any matter in issue in tnis oroceeding.
i
~
~ 8 0 0'2140 8 e.
. On July 9,1975 Mr. Joseph Pandy, Jr. of the City of Painesville, who was also subpoenacd, appeared pursuant to that subpoena and read into the record and presented to Staff Counsel a Motion to Quash the subpoena of Mr. Milburn. Attached herewith are pages 3, 4, and 5 of the deposition of Mr. Pandy, relating to Mr. Milburn's non-attendance at his sche ^tled deposition based on the motion to quash.
original of Mr. Milburn's motion to quash was delivered Al thc _
e te deposition no other copies were served on any to Staff Cc/
~
.t other parties. Staff Counsel then delivered the motion to the NRC Docket-ing and Service Section for distribution pursuant to the Commission's Rules of Practice.
It should also be noted that as contrary to the requirements of both 10 CFR 92.720(f) and the terms of the subpoena, no notice was given to Staff Counsel (or any other party) that a motion to quash or modify the subpoena was to be filed. Staff also questions whether or not a motion is "promptly made" if it is served on the date of the deposition without prior notice to counsel.
Notwithstanding these procedural irregularities, the sole reason contained in the motion to quash is that Mr. Joseph Pandy would be in attendance at raid deposition and would be in a position to furnish the information requested of Mr. Milburn, who as of February 1,1975 was no longer Law Director of the City of Painesville. The record now indicates that the negotiations between the Cleveland Electric Illuminating Company
("CEI") and the City of Painesville fqr an interconnection agreement took place over a period of approximately 11 years. The record also indicates that Mr. Milburn was employed or. served the City of Painesville i
4
)
, 3-during that entire time. Mr. Pandy has been employed by the City since 1971. Because of that (and as set forth in Staff's Application for Subpoenas filed June 17, 1975) some of the relevant documents and information relating to the period of negotiation are within the sole possession or knowledge of Mr. Milburn. Therefore, it is Staff's position that Mr. Milburn's deposition may be the best evidence of certain of that information regarding the relationship between CEI and the City of Painesville.
Accordingly, it is Staff's position that the motion to quash should be denied and that Wayne Milburn be directed to appear and give testimony by deposition on oral examination and produce documents at the time and place specified in the subpoena issued to Mr. Milburn at a time convenient to all counsel but in any event no later than August 8,1975.
Respectfully submitted, QO 1
1 w. n Roy P. pessy, Jr. // /
Counsel for NRC Staff Dated at Bethesda, Maryland this 22nd day of July 1975.
4 4
,_-