ML19329C776
| ML19329C776 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 12/30/1975 |
| From: | Goldberg R, Hjelmfelt D CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002190890 | |
| Download: ML19329C776 (8) | |
Text
r
.y i
l l
l UNITED STATES OF AMERICA h -3 O ~
NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
3 y
Docket No( 5_0 w 1 The Toledo Edison Company
)
500A 50-The Cleveland Electric 111uminating
)
Company
)
50-501A (Davis-Bes se Nuclear Power Station, )
Units 1, 2 and 3)
)
)
The Cleveland Electric Illuminating
)
Docket Nos. 50-440A Company, et al.
)
50-441A (Perry Nuclear Power Plant,
)
Units 1 and 2)
)
MOTION OF THE CITY OF CLEVELAND FOR REVIEW OF THE DECISIONS OF THE SPECIAL MASTER ENTERED JUNE 19, 1975 AND JUNE 30, 1975 On June 19, 1975 and June 30, 1975, the Special Master in these proceedings entered his decision with respect to certain claims of privilege asserted by The Cleveland Electric Illuminating Company (CEI) with respect to documents responsive to discovery requests of the City of Cleveland (Cleveland). By motion of July 8,1975, Cleveland, pursuant to its under-standing of the Boards order of December 10, 1974, requested the Board to certify the Special Master's decision to the Appeal Board for review on the merits. Cleveland sought certification rather than review by the Board because it understood the Board's order of December 10, 1974 to foreclose 80 02190 DO 8
. review by the Board but not by the Appeal Board. On July 21,1975, the Board denied Cleveland's motion for certification. Cleveland then noticed an appeal and filed exceptions to the Board's ruling of July 21, 1975. The Appeal Board subsequently exercised its discretion to grant interlocutory review and upon review held that Cleveland was precluded from seeking review at any time by any reviewing body by virtue of the agreement it found Cleveland bad entered into. M n the light of recent events which I
have occurred during the hearing in &is matter, Cleveland now requests the Board to review the decisions of the Special Master.
In its order of September 19, 1975, de Appeal Board intimated
'l I
(mimeo. p. 4) that this Board might exercise its own discretion to review i
the Special Master's rulings. The Board itself recognized that if any review were to be had it should be by the Licensing Board (Decision of July 21, 1975, mimeo. p. 6). The Board, however, noted that the agree-ment of the parties was a binding waiver of the right to review (mimeo. p. 9).
The agreements / of the parties to be " bound" by the decision of the Special Master was net the only agreement entered into by the parties to this proceeding. On March 29, 1974, Applicants agreed with the other parties that cross-examination would be conducted by a single attorney for the Applicants and that Applicants would file a single prehearing brief. 3 /
1/ Appeal Board decisions of September 19, 1975 and November 28, 1975.
Cleveland appealed the Appeal Board's decision to the U. S. Court of Appeals for the District of Columbia Circuit, No. 75-2115.
1/ Cleveland does not believe there was such an agreement but for purposes of dis motion will assume, arguendo, that such an agreement was made.
3_/ Statement On Consolidation Procedures, dated March 29, 1974 and signed by Mr. Charnoff for de Applicants.
i
I
. At no time did Applicants seek to modify this agreement. Nor have they ever claimed that the agreement was invalid. Despite their solemn agree-ment to the contrary, they proceeded to file separate prehearing briefs.
By motion of November 20, 1975, Cleveland brought to the Board's attention Applicants' agreement to file a single prehearing brief and requested an order of the Board requiring the Applicants to abide by their solemn agreement. At a prehearing conference of November 26, 1975, the Chairman noted the correctness of Cleveland's position but declined to enter what by that time was a futile, unenforceable order.
Also, at the November 26,1975 prehearing conference Applicants made it known that they had no intention of fulfilling their agreement to proceed by only one counsel during cross-examination. On Dec ember 3, 1975, Cleveland filed its Answer to Applicants' Statement of Procedural Matters to be Considered (incorporated herein by reference), again bring-ing to the Board's attention Applicants' agreement to proceed by a single counsel 3uring cross-examination.
Cleveland again raised the matter of Applicants' agreement to cross-examine by only one counsel during the second day of hearing. 4/
Applicants first stated they did not understand how Cleveland came to 5_/
understand that Applin 2nts would proceed pursuant to their agreement.
Then, in response to the Chairman's question "How do you avoid the effect of your own March 29 agreement?" Applicants responded by saying that i
4/ Tr. 1764-1769.
5_/ Tr. 1765.
. when the agreement was made they did not know what the case was all about. kl On December 16, 1975, during the cross-examination of Mr. Lyren, the matter first arose in a context requiring the Board to rule directly on the question of whether Applicants, like Cleveland, would be required to abide by their agreement. Mr. Steven Berger, representing Chio Edison, cro ss-examined Mr. Lyren. Following the completion of Mr. Berger's cross-examination, Mr. Lerach, representing Duquesne Light, undertook to cros s -examine Mr. Lyren. At that point, Cleveland again objected to cross-examination by more than one counsel for Applicants.
It is now clear from the record that Applicants are not to be held to their agreement regarding procedures to be followed in this proceeding.
Cleveland believes that it is manifestif unfair and unjust for it to be required to conform to an agreement, which it disputes was made, while Applicants are free to ignore an agreement which they have never denied making or suggested was ambiguous.
If evenhanded fairness is to be done all parties, Cleveland must be granted review on the merits of the decisions of the Special Master. No delay need be occasioned thereby for the matters have been fully briefed.
The Board may make its decision on the briefs previously filed by the partie s.
p/ Applicants have raised a similar argument repeatedly for a variety of reasons. On each occasion the Board has rejected the argument as invalid and contrary to fact.
1 1 WHEREFORE, Cleveland prays that the Board review the merits i
of the Special Master's decision with respect to documents claimed privileged by CEI.
Respectfully submitted, C[ eta F
-lTv wAf Yki 4
Reuben Goldb/rg/;/.-(f David C. '.-Ijelmfelt Goldberg, Fieldman & Hjelmfelt 1700 Pennsylvania Avenue, N. W.
Was hington, D. C.
20006 Telephone (202) 659-2333 t
James B. Davis Director of Law Robert D. Hart First Assistant Director of Law City of Cleveland l
City Hall, Room 213 Cleveland, Ohio 44114 Telephone (216) 694-2737 i
Attorneys for City of Cleveland l
December 30, 1975 e
4 t
l
i i
CERTIFICATE OF SERVICE I
I hereby certify that service of the foregoing Motion of the City of i
Cleveland for Review of the Dectstons or the Special Master Entered l
June 19,1975 and June 30, 1975 has been made on the following parties r
t 1
listed on the attachment hereto this 30th day of December, 1975, by 2
depositing copies thereof in the United States mail, first class postage I
prepaid, or by hand delivery, db 44 lctL//
Reuben Goldb[g I
i Attachment i
r l
1 i
i l
3 I
l
.._,.c..
ATTACHMENT r
Douglas V. Rigler, Esq., Chairman Ivan W. Smith, Esq.
Atomic Safety and Lice.nsing Board John M. Frysiak, Esq.
Foley, Lardner, Hollabaugh and Jacobs Atomic Safety and Licensing Board 815 Connecticut Avenue, N. W.
U. S. Nuclear Regulatory Commission l
Washington, D. C.
20006 Washington, D. C.
20555 i
Alan S. Rosenthal, Chairman Richard S. Salzman, Chairman 1
Atomic Safetf and Licensing Appeals Board Atomic Safety and Licensing Appeals Board U. S. Nuclear Regulatory Commis sion U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 1
l Dr. John H. Buck Michael C. Farrar Dr. Lawrence K. Quarles Dr. W. Reed Johnson l
Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Board U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commis sion Washington, D. C.
20555 Washington, D. C.
20555 Howard K. Shapar, Esq.
Andrew F. Popper, Esq.
l Executive Legal Director Jack R. Goldberg, Esq.
I 1
U. S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, D. C.
20555 U. S. Nuclear Regulatory Commis sion i
Washington, D. C.
20555 Mr. Frank W. Karas, Chief Public Proceedings Branch Benjamin H. Vogler, Esq.
Office of the Secretary Joseph Rutberg, Esq.
U. S. Nuclear Regulatory Commission Robert J. Verdisco, Esq.
Washington, D. C.
20555 Roy P. Lessy, Jr., Esq.
Office of the General Counsel Abraham Braitman, Esq.
Regulation Office of Antitrust and Indemnity U. S. Nuclear Regulatory Commission j
U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 i
Melvin C. Berger, Esq.
Frank R. C1okey, Esq.
Jo s e ph J. Saunde r s, Esq.
j Special Assistant Attorney General Steven M. Charno, Esq.
Towne House Apartments, Room 219 David A. Leckie, Esq.
Harrisburg, Pennsylvania 17105 Janet R. Urban, Esq.
Ruth Greenspan Bell, Esq.
Edward A. Matto, Esq.
Antitrust Division Assistant Attorney General Department of Justice Chief, Antitrust Section Post Office Box 7513 30 East Broad Street, 15th floor Washington, D. C.
20044 Columbus, Ohio 43215 Karen H. Adkins, Esq.
l Christopher R. Schraff, Esq.
Richard M. Firestone, Esq.
I Assistant Attorney G.2eral Assistant Attorneys General Environmental Law Section Antitrust Section 361 East Broad Street, 8th floor 30 East Broad Street, 15th floor l
Columbus, Ohio 43215 columbus, Ohio 43315 l
1 m
Page 2 ATTACH 1..ZNT (Continued)
P.us sell J. Spetrino, Esq.
Leslie Henry, Esq.
j Thomas A. Kayuha, Esq.
Michael M. Briley, Esq.
Ohio Edison Company Ro ger P. Klee, Esq.
47 North Main Street Fuller, Henry, Hodge & Snyder Akron, Ohio 44308 Post Office Box 2088 Toledo, Ohio 43604 John Lansdale, Jr., Esq.
Cox, Langford & Brown James R. Edgerly, Esq.
21 Dupont Circle, N. W.
Secretary and General Counsel Washington, D. C.
20036 Pennsylvania Power Company One East Washington Street Lee C. Howley, Esq.
New Castle, Pennsylvania 16103 Vice President and General Counsel The Cleveland Electric Illuminating Co.
Donald H. Hauser, Esq.
Post Office Sox 5000 Victor A. Creenslade, Jr., Esq.
Cleveland, Chio 44101 The Cleveland Electric Illuminating Co.
Post Office Box 5000 Ge: aid Charnoff, Esq.
Cleveland, Ohio 44101 Wm. Bradford Reynolds, Esq.
Shaw, Piaman, Potts & Trowbridge Thomas J. Munsch, Jr., Esq.
010 Seventeenth Street, N. W.
General Attorney Washington, D. C.
20006 Duquesne Light Company 435 Sixth Avenue David McNeill Olds, Esq.
Pittsburgh, Pennsylvania 15219 William S. Lerach, Esq.
Reed, Smith, Shaw & McClay Jo s eph A. Rieser, Esq.
Post Office Sox 2009 Reed, Smith, Shaw & Mc Clay Pittsburgh, Pennsylvania 15230 1155 Fifteenth Street, N. W.
Washington, D. C.
20005 Terrence H. Benbow, Esq.
Winthrop, Stimson, Putnam & Roberts John C. Engle, President 40 Wall Street AMP-O, Inc.
New York, New York 10005 20 High Street Hamilton, Ohio 45012 Jon T. Brown, Esq.
Duncan, Brown, Weinberg & Palmer Atomic Safety and Licensing Board Panel 1700 Pennsylvania Avenue, N. W.
U. S. Nuclear Regulatory Commission Washington, D. C.
20006 Washington, D. C.
20555 Dc cketing and Service Section Atomic Safety and Licensing Appeal Office of the Secretary Board Panel U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 l
- -. - -