ML19329C668
| ML19329C668 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 10/23/1974 |
| From: | Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002180173 | |
| Download: ML19329C668 (8) | |
Text
October 23, 1974 UNITED STATES OF AMERICA ATCMIC E:iERGY CC:GIISSION Before the Atomic Safety and Licensing Board In the Matter of
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THE TOLEDO EDISON COMPA:IY and
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THE CLEVELAND ELECTRIC ILLUMI?iATI:iG
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COMPANY
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j (Davis-Eecse Nuclear Power Station,
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Docket Nos. 50-346A Unit 1)
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50-440A
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50-441A THE CLEVELA:ID ELECTRIC ILLUMI?iATING
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(Perry Nuclear Power Plant,
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Units 1 and 2)
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APPLICANTS' RESPONSE TO THE CITY OF CLEVELA:ID 'S OBJECTIONS TO THE ORDER OF THE LICENSI:IG EOARD DATED OCTOBER 11, 1974 1.
The City of Cleveland (" City") h.3 requested the Licensing Scard, pursuant to Section 2 751a(d) of the Ccmmission's Restructured Rules of Practice, to reconsider virtually every ruling en objections to interrogatories and document requests that sustains (1) the position taken by The Cleveland Electric Illuminating Ccapany ("CEI") -- as to the City's discovery requests addressed separately to CEI --
and (2) the position taken by the other Applicants -- as to the City's discovery requests addressed separately to the other Applicants.
In addition, the City has challenged most of the Licensing Board's decisions overruling the City's ob-jections to interrogatories and document requests propounded 80021so /7 3 q
. to the City by Applicants.
The numerous objectidns now raised by the City are not well taken and provide no basis for revising the earlier Order of October 11, 1974.
2.
Applicants believe it is neither necessary nor desirable to burden the Licensing Board with a repetition of the arguments already presented to this Board in opposition to the City's discovery requests, on the one hand, and in response to the City's objections to Applicants' discovery requests, on the other hand.
The matters raised by the City in its most recent filing are not new.
The same arguments were made, and answered, at the time of the City's original objections in this context, both in written submissions and in oral argument at the lengthy Prehearing Conference held on September 16, 1974 3
While Applicants are not in total agreement with the Licensing Board's disposition of the various challenges to the interrogatories and document requests propounded, they appreciate the careful consideration which the Board has given to this entire matter, as reflected in its thorough Order of October 11, 1974.
It serves no useful purpose to go over again
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the same ground which has already been so painstakingly tra-versed.
4.
The Licensing Board was confronted with numerous objections to discovery requests; it obviously dealt conscien-tiously with each one in order to provide a cleaf definition to the scope of discovery.
As a consequence, the extensive file searches whi h now must be undertaken have unavoidably been delayed so that the original October 31 date set for completion of this phase of discovery cannot realistically be met.
To delay further this process simply to provide the City with another opportunity to rehash arguments which the Licensing Board has already once rejected would impose on the Applicanto and this Board an undue burden which should not be tolerated.
5 Accordingly, the City's objections to the Licens-ing Board's Order of October 11 should be denied in their en-tirety.
In this regard, Applicants would observe only that the City's effort, in connection with its Document Request 16(d) to 1,
CEI,-
to read Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307 (1942),
narrowly so as not to preclude prcduction of documents in Ap-plicants' possession " relating to.* *
- legislation and con-stitutional revisions * * *," not only misconstrues the thrust of that decision, but also ignores the clear pronour..
later made by the Supreme Court in Eastern Railroad Presie;"..
2n-ference v. Noerr Motor Freight, Inc., 365 U.S. 127, 8
- c. ut.
523 (1961).
As one member of this Board accurately pointed out at the Prehearing Conference of September 16, 1974 (Tr. 596),
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The same request appears as Document Request 2(d) to the other Applicants.
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i Parker v. Brown and the Noerr case " provide a pretty broad 3
1 protection for peop who pursue legislative remedies, espe-l cially the Noerr case."
This was recently underscored by the United States District Court for the District of Minnesota j
in United States v. Otter Tail Power Cemoan', 331 F. Supp.
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I 54, 62 (1971).
The District Court there made the following statement, with which the Supreme Court agreed on appeal (401 U.S. 366, 93 S. Ct. 359 (1973)):
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- the Noerr principle is applicable * *
- j to efforts aimed at influencing the legis-lative and executive branches of government.
It * *
- immunizes political activity di-rected toward the enactment and enforcement of the laws frem antitrust attack.
i The Licen-ing Board's ruling with respect to the City's Docu-l j
1 ment Request 16(d) -- and also with respect to the City's Doc-ument Request 16(f)2/ -- 13, therefore, correct.
This is j
especially so in view of the fact, as the Licensing Board ac-curately observed (October 11 Order, para. 5, p.
6), that "CEI's activities, if any, in the areas of legislation or con-1 stitutional revision do not possess the requisite degree of relevance to these proceedings."
4 6.
The only other point made by the City deserving I
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of separate ccmment pertains to the City's Document Request 1
113 The City now suggests a modification of that request to i
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This particular Document Request was addressed only to CEI and not to the other Applicants.
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l require production only of those pages of daily dlarics
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and appointment calendars belonging to officers and directors of CEI which reflect appointments or meetings with certain
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identified individuals for the purpose of discussing the i
ability of the City to finance its electric system.
As so j
l modified, CEI will withdraw its objection to Document Request l
113, and will produce the pages, if any, which reflect the requested information.1/
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE l
f By b dmP[/4 d
-. "A e
l Wm. Bradforg Reynoldh Gerald Charnoff
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Counsel for Applicants i
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Dated:
October 23, 1974.
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3/
By way of clarification, Applicants take this opportunity to refer to paragraph 66 of the Licensing Board's Order (p. 27),
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wherein there appears to be a typographical error.
The corres-ponding paragraph to which reference is made therein is "B.21";
i we believe that the proper reference is to paragraph "B.20,"
which discusses the Document Request to CEI that corresponds to Document Request No. 12 addressed to the other Applicants.
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UNITED STATES OF AMERICA ATOMIC ENERGY COICIISSION Before the Atomic Safety and Licensing' Beard In the Matter of
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THE TOLEDO EDISON COMPANY and
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l THE CLEVELAND ELECTR'iC ILLUMINATING
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i COMPANY
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(Davis-Besse Nuclear Power Station,
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Docket Nos. 50-346A Unit 1)
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50-440A 1
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50-441A THE CLEVELAND ELECTRIC ILLUMINATING
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(Perry Nuclear Power Plant,
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Units 1 and 2)
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i CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing
" Applicants' Response To The City Of Cleveland's Objections To The Order Of The Licensing Board Dated October 11, 1974" i
were served upon each of the persons listed on the attached Service List by U. S. Mail, postage prepaid, on this 23rd I
day of October, 1974.
l SHAW, PITTMAN, POTTS & TROWBRIDGE By U
d k
W i
Wm. BradfordsReynoldy l
Counsel for Applicants Dated:
October 23, 1974.
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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THE TOLEDO EDISON COMPANY and
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THE CLEVELAND ELECTRIC
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ILLUMINATING COMPANY
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(Davis-Besse Nuclear Power
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Docket Nos. 50-346A Station, Unit 1)
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50-440A
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50-441A THE CLEVELAND ELECTRIC
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ILLUMINATING COMPANY, ET AL. )
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(Perry Nuclear Power Plant,
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Units 1 and 2)
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SERVICE LIST John B. Farmakides, Esq.
Mr. Chase R. Stephens Chairman Docketing & Service Section Atomic Safety and Licensing Board U. S. Atcmic Energy Commission U. S. Atomic Energy Cc= mission 1717 H Street, N.W.
Washington, D. C. 20545 Washington, D. C.
20545 John H. Brebbia, Esq.
Benj amin H. Vogler, Esq.
Atomic Safety and Licensing Eoard Office of General Counsel Alston, Miller & Gaines Regulation 1776 K Street, N.W..
U. S. Atomic Energy Commission Washington, D. C. 20006 Washington, D. C.
20535 Douglas V. Rigler, Esq.
Robert J. Verdisco, Esq.
Atomic Safety and Licensing Board Office of General Counsel Foley, Lardner, Hollabaugh Regulation and Jacobs U. S. Atomic Energy Commission Schanin Building Washington, D. C.
20545 815 Connecticut Avenue, N.W.
Washington, D. C.
20006 Andrew F. Popper, Esq.
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Office of General Counsel Atomic Safety and Licensing Regulation Board Panel U. S. Atcmic Energy Ccmmission U. S. Atomic Energy Commissict Washington, D. C.
20545 Washington, D. C.
20545
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i Joseph J. Saunders, Esq.
Leslie Henry, Esq.
Steven Charno, Esq.
Fuller, Henry, Hodge & Snyder Antitrust Division 300 Madison Avenue Department of Justice Toledo, Ohio 43604 Washington, D. C. 20530 l
l Melvin G. Berger, Esq.
Ohio Edison Company Antitrust Divisi6n 47 North Main Street Department of Justice Akron, Ohio 44308 Washington, D. C. 20530 Thomas J. Munsch, Esq.
Reuben Goldberg, Esq.
General Attorney
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David C. Hj elmfelt, Esq.
Duquesne Light Company j
1700 Pennsylvania Ave., N.W.
435 Sixth Avenue j
Washington, D. C. 20006 Pittsburgh, Pennsylvania 15219 Frank R. Clokey, Esq.
David Olds, Ecq.
j Special Assistant Reed, Smith, Shaw & McClay i
Attorney General Union Trust Building Room 219 Box 2009 Towne House Apartments Pittsburgh, Pennsylvania 15230 Harrisburg, Pennsylvania 17105 4
John Lansdale, Esq.
Mr. Raymond Kudukis Cox, Langford & Brown I
Director'of Utilities 21 Dupont Circle, N.W.
City of Cleveland Washington, D. C. 20036 1201 Lakeside Avenue Cleveland, Ohio 44114 Wallace L. Duncan, Esq.
Jon T. Brown, Esq.
Herbert R. Whiting, Director Duncan, Brown & Palmer Robert D. Hart, Esq.
- 1700 Pennsylvania Ave., N.W.
j Department of Law Washington, D. C. 20006 1201 Lakeside Avenue a
Cleveland, Ohio 44114 Dwight C.
Pettay, Jr.
Assistant Attorney General j
John C. Engle, President Chief, Antitrust Section AMP-0, Inc.
30 East Broad Street, 15th Floor Municipal Building Columbus, Ohio 43215 20 High Street Hamilton, Ohio 45012 Deborah Powell Highsmith, Esq.
Assistant Attorney General Donald H. Hauser, Esq.
Antitrust Section j
Managing Attorney 30 East Broad Street, 15th Floor The Cleveland Electric Columbus,.0hio 43215 Illuminating Company 55 Public Square Christopher R. Schraff, Esq.
j Cleveland, Ohio 44101 Assistant Attorney General i
Environmental Law Section 361 East Broad Street, 8th Floor Columbus, Ohio 43215 l
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