ML19329C712
| ML19329C712 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 10/17/1975 |
| From: | Frysiak J, Rigler D, Smith I Atomic Safety and Licensing Board Panel |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002180205 | |
| Download: ML19329C712 (11) | |
Text
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OCT17IO73 > H NUCLEAR REGULATORY COMMISSION cf.a. s +. s
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S Before the Atomic Safety and Licensing Board g
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~~ m THE TOLEDO EDISON COMPANY and
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Docket Nos.mSC-346A '
THE CLEVELAND ELECTRIC ILLUMINATING )
50-500A COMPANY
)
50-501A (Davis-Besse Nucleat Power Station, )
Units 1, 2 and 3)
)
)
THE CLEVELAND ZLECTRIC ILLUMINATING )
Docket Nos. 50-440A COMPANY, ET AL.
)
50-441A (Ferry Nuclear Power Plant,
)
Unics 1 and 2)
)
MEMORANDUM AND ORDER OF BOARD ON MOTION OF THE CITY OF CLEVELAND TO COMPEL DISCOVERY i
By Motion of October 1, 1975, the City of Cleveland (City) moved the Board to enter an order directing Donald "..
Hauser, an employee of the Cleveland Electric Illuminating Company (CEI), to appear in Washington, D. C. to respond to questions put to his during the course of his deposition and to reasonable additional questions.
City further moved that Appli-cants bear all expenses attributable to the reconvening of the Hauser deposition.
On October 7, 1975, Applicants filed a reply in opposition to the Motion citing Section 2.740(f)(1) of the Commission's Rules of Practice which provide.s in pertinent part as follows:
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'l If a deponent
. fails to respond or objects to the request, or any part thereof.
the deposing party.
. may move the presiding officer, within five (5) days after the date of the response.
. for an order compelling a response.
The motion shall set forth the nature of the questions
., the response or obj ection.
., and arguments in support of the motion.
The Hauser deposition took place on July 11, 12 and
]
18, 1975 (City's Motion, p. 1).
Thus, no later than July 15 l
City was aware of the basis upon which a motion to compel discovery could be formulated.
The questions as to which answers i
now are sought were ob.iected to on the ground that the answers i
invaded the area of attorney / client privilege.
City contends that had the Board ordered CEI to make available certain documents l
withheld on grounds of privilege, the instant motion might not i
j have been necessary.
At the sane time, City contends that the 4
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answers being sought do not ask for the contents of the documents.
That being so, we can see no reason why the City should not have been prepared to move ttnely for an order requiring the answers now being sought irrespective of any decision of this Board relating to privileged docenents.
Mcreover, we note that on July 21, 1975, the Board declined to review the Master's rulings with respect to privilege and further refused to certify the issue to the Appeal Board.* Thus, since at least late July, City was i
The Appeal Board in turn rejected City's attempt to obtain access to the assertedly privileged documents in its 1
rulin6 of September 19, 1975.
Eleven days elapsed before the City tiled the instant motion, and although the City has applied (Footnote continued on following page) 4
m in a position to apply for the relief now being sought.
City's Motion is in such obvious disregard of Rule 2.740(f) that the request for relief must be denied.
In so ruling, we have carefully read the City's moving papers to determine if good cause has been demonstrated to require some further evaluation on our part.**
We are persuaded that none exists because the City unquestionably was aware of the Board's posture with respect to the privilege issue as it related to CEI documents and with respect to the termination of discovery by August 1.
We see no justification for the delay until October 1 for the Motion now filed.
i In ordinary circumstances, we would say no more.
Where the rules of procedure require a certain result, no proper purpose is served by speculating as to what the ruling might have
- (Footnote cont. from preceding page) for reconsideration by the Appeal Board, surely reasonable pru-dence would require it to have applied for related relief within five days of the intitial Appeal Board decision.
We do not rely on this sequence of events in reaching our ruling, however, since we consider the plain requirements of the rules as they relate to activities before the Licensing Board to control our deter-mination of the City's Motion.
- We are not unmindful that on occasion the Board has exercised its discretion to permit parties to file additional pleadings which filings were not accorded the parties as a =atter of right.
Our inability to see any reasonable good cause basis for the City's delay, however, tips the balance against the exer-cise of such discretion as the rules may permit in the Motion now before us.
9
, l been but for the requirements of the rules.*
Here, however, we see some advantage in adumbrating our position with respect to certain of the recurring objections taken by CEI counsel during the Hauser deposition and cited by City as erroneous.
Our preliminary thoughts, of course, are subj ect to re-evaluation based upon brief arguments which may take place at the hearing stage.
All parties should recognize that the Board's action in commenting further with respect to evidentiary rulings it may be required to make is done solely for the purpose of placing what promises to be a recurring dis-pute into a framework for prompt resolution.
The parties should read into this an intent by the Board to utilize the powers set forth in 10 CFR 52.718(c) and (e) and 10 CFR 52.757 to control closely the duration of these proceedings consistent with the j
requirements of due process.
We now turn our attention to the specific objections set forth in the deposition pages attached to City's Motion.
Although a serir s of documents and incidents are covered within these pages, a general pattern has emerged in which obj ections This is not to say that we regard the application of Rule 2.740 as a triumph of procedure over substance in the instant case.
We are in agreement with the position set forth by Applicants at the prehearing conference of September 13, 1973 l
tbatt at some point discovery must terminate and that due process i
requires the Applicants to be aware of the boundaries of the charges being made against them.
Thus, without a showing of good cause, to reopen at this late date what could become a major area of discovery would not be warranted.
l
were taken to questions involving (1) the identificacicr of the person requesting a study or evaluation; (2) questions relating i
to the use of the study; and (3) questions relating to any i
action taken pursuant to or as a result of the study.
Our preliminary opinion is that obj ections as to the identification i
of the person requesting a study would not be sustained, and if Mr. Hauser is called as a witness in these proceedings, he may be required to answer such questions.
With respect to the use of the various studies, it is difficult to determine whether such information infri7.ges upon the attorney / client privilege, and i
such rulings may necessitate consideration on ar. individual basis.
j With respect to questions relating to any action taken pursuant to or as a reault of the study, we regard this as the most important of the three questions in terms of providing information relevant to the resolution of the issues in controversy.
Subj ect to further argument from counsel, our preliminary view is that
" action" taken is an objective fact and that objections to dis-closing action based upon attorney / client privilege would not be i
sustained.
There are several reasons why this is so.
The'
" action" would not necessarily disclose any confidential coc= uni-cation intended to be protected since (a) several courses of action may have been proposed; (b) the " action" may not be consistent with the reccamendation of the study; and (c) the
" action" may have been a modified version of the study proposal.
Moreover, " action" will constitute an event which by its nature i.
,.., - - ~ -.-..
. will be disclosed to those outside of any confidential com= uni-cation group.
I Finally, we wish to address an assertion in Appli-cants' Reply to City's Motion in the interest of eliminating any misunderstanding as these proceedings reach the hearing stage.*
We are troubled by the assertion in paragraph two of Applicants' Reply that "this (privileged cec =unications between CEI and its attorneys] has repeatedly been held to be entitled to protection from disclosure."
No such blanket ruling has been made with respect to all communications between CEI and its attorneys.
Indeed, witt respect to the documents claimed by CEI to be privileged, the Special Master found some portion of these documents not to be protacted by privilege or found the privilege to have been lost.
With respect to claims of privilege other than those relating to the documents designated by CEI, no rulings have been made.
l It is not necessary, of course, in ruling on a motion for the Board to address each factual or legal assertion contained in the various parties' moving and reply papers.
The fcet that a party has made an assertion does not make it so, ner does the assertion become binding on the Board or any other party to these proceedings.
Nonetheless, in vies of the pro-longed cont oversy with respect to privilege, the Board considers it approorface to have the record as clear and correct as possible before the evidenciary stage of the proceedings.
,.. - -. ~,,,
.- MOTION DENIED.
ATOMIC SAFETY AND LICENSING BOARD M A 7 Q _,.-.
Jd4n M. Fry k,' Member 2
A Ivdn W.
Smica, Member JA Dotigl V.
Rig Unairman Dated at Bethesda, Maryland this 17th day of October 1975.
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UNITED STATES OF A;! ERICA NUCLEAR REGULATORY COM:1ISSION
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In the Matter of
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)
THE TOLEDO EDISON COMPANY, ET AL.)
Docket No.(s) 50-346A CLEVEL\\ND ELECTRIC ILLUMINATING )
50-440A COMPANY
)
50-441A 4
)
(Davis-Besse Nuclear Power
)
Station, Unit No. 1; Perry
)
Nucicar Power Plant, Units 152))
CERTIFICATE OF SET.' ICE I hereby certify that I have this day served th'c foregoin; document (s) upon cach person designated on the of ficial service list ce= piled by the Of fice of the Secret ry :f the Cc: mission in this proceeding in accordance with the requirements of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Rc;ulatory Coraission's Rules and Regulations.
i Dated at Washington, D.C. this 0
day of O d.
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UNITED STATES OF AMERICA NUCLCAR REGULATCRY CO:':1ICSION In the Matter of
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Docket No.(s) 50-346A (Davis-Besse Unit 11
)
CLE'.'E'XT E'ECTRIC ILLC'1INATING
)
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50-441A (Perry Units 1 and 2)
)
)
50-500A (Davis-Sesse Units 2 and 3)
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50-501A SER'lIC LIST rouglas Rigler, Esq., Ch. irman Joseph Rutberg, Esq.
Foley, Lardner, Hollabaugh E Jacobs Antitrust Counsel 815 Connec:icut Avenue, N. W.
Counsel for NRC Staff Washington, D. C.
20026 U. S. Nuclear Regulatory Co==ission Washington, D. C.
20535 Ivan 9.
$=ith, Esq.
Office of Antitrus: 5 Indennity At0=ic Safety and Licensing Beard Office of Nuclear Reactor Regula:ica U. S. Nuclear Regu.atory Cc==issi:n U. S. Nuclear Regulatory Co==ission Washin;;on, D.
C.
20535 Washington, P.
C.
20555 John M. Frysiak, Esc.
Benja=in H. Vogler, Esq.
Atomic Safety and Licensing 30ard Roy ?. 'essy, Jr., Esq.
U. S. Nuclear Re;ula:ory Co==ission Antitrus: Counsel Washing cn, D. C.
20535 Counsel for NRC Staff U. S. Nuclear Regula:ory Co==ission Alan S. Rosenthal, Es7., Chair =an Washington, D. C.
20535 Atomic Safety an2 Licensing Apoeal Board ronald H. Mauser, Es.
U. S. Nuclear Regulatory Cc==is sion Jictor F. Greenslade, Jr., Esq.
Washing:on, D. C.
205.55 Cleveland Electric Illuminating Co=pa ny Mr. Michael C. Farrar P. O. Box 5C00 Acc=ic Safety and Licensing Appeal Cleveland, Chio 44101 3oard U. S. Nuclear Regula:ory Co==ission Joseph J. Saunders, Esq., Chief Washington, D. C.
20535 Public Counsel and Legislative Section R' harf R.
Saler.:n, E3c.
Antitrus: rivis ion i
Atomic Safety and Licensing. Appeal U. S. Cepartment of Justice Board Washington. D. C.
20530 U. S. Nuclear Regulatory Co==ission 3O9)JJ1 eudD Washington, D. C.
20535 i
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50-346A, -440A, -441A, -500A, -501A pega 2 Gerald Charnoff, Esq.
Honorable Edward A. Matto Shaw, Pittman, Potts, Trowbridge Assistant Attor.iey General and Madden Chief, Antitrust Section 910 -17th Street, N. W.
30 East Broad Street, 15th Floor Washington, D. C.
20006 Columbus, Ohio 43215 Lee C. Howley, Esq., Vice President Honorable Deborah P. Highsmith and General Counsel Assistant Attorney General t
Cleveland Electric Illuminating Antitrust Section Company 30 East Broad Street, 15th Floor P. O. Box 5000 Colu= bus,0h io 43215 Cleveland, Ohio 44101 Honorable Christopher R. Schraff l
David C. Hjelmfelt, Esq.
Assistant Attorney General Michael Oldak, Esq.
Environmental Law Section 1700 Pennsylvania Avenue, N. W.
351 East 3 road Street Washington, D. C.
20006 Columbus, Ohio 43215 Reuben Goldberg, Esq.
Duncan, Brown, Weinberg & Palmer Arnold Fieldman, Esq.
1700 Pennsylvania Avenue, N W.
1700 Pennsylvania Avenue, N. W.
Washington, D.
C.
20006 Washington, D. C.
20006 John Lansdale. Jr., Esq.
I Steven M. Charno, Esq.
Cox, Langford & 3rown Melvin G. 3erger, Esq.
21 Dupont Circle. N. W.
Antitrust Division Washington, D. C.
20036 U. S. Department of Justice Washington, D. C.
20530 Leslie Henry, Esq.
W. Snyder, Esq.
Honorable Thomas E. Kauper Fuller. Henry, Hodge & Snyder Assistant Attorney General 300 Madison Avenue Antitrust Division Toledo, Ohio 43604 U. S. Department of Justice Washington, D. C.
20530 Mr. George 3. Crosby Director of Utilities John C. Engle, President Piqua, Ohio 45350 AMP-0, Inc.
Municipal Building William M. Lewis, Jr.
20 High Street W. M. Lewis & Associates Hamilton, Ohio 45012 P. O. Box 1383 Portsmouth, Ohio 45662 Honorable Richard M. Firestone Assistant Attorney General Robert D. Hart, Esq.
Antitrust Section As s is tant Law Director 30 East 3 road Street,- 13th Floor City Hall Columbus, Ohio 43215 Cleveland, Ohio 44114 Honorable William J. Brown Anthony G. Aiuvalasit, Jr., Esq.
t Actorney General Antitrust Division State of Chio Department of Justice Columbus, Ohio 43215 P. O. Box 7513 Washington, D. C.
20044
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50-346A, -440A, -441A, -500A, -501A Pagn 3 Susan B. Cyphert, Esq.
Antitrust Division Depart =ent of Justice 727 New Federal Building 2140 East Ninth Street Cleveland, Ohio 44199 David M. Olds, Esq.
Reed, Smith, Shaw and McClay P. O. Box 2009 Pittsburgh, Pennsylvania 15230 Thomas A. Kayuha, Eaq.
47 North > bin Street Akron, Ohio 44308 Perry Public Library 3753 Main Street Perry, Ohio 44081 Director Ida Rupp Public Library 301 Madison Street Port Clinton, Ohio 43452 S
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