ML19329C787
| ML19329C787 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 11/14/1975 |
| From: | Bell R, Berger M, Charno S JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002190899 | |
| Download: ML19329C787 (9) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2
i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l
a In the Matter of
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The Toledo Edison Company and
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The Cleveland Electric Illuminating
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Docket No Q -3.46 g l
Company
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So-duoA (Davis-Besse Nuclear Power Station,
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50-501A Units 1, 2 and 3)
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The Cleveland Electric Illuminating
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Docket Nos. 50-440A Company, et al.
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50-441A 7
(Perry Nuclear Power Plant,
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Units 1 and 2)
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OBJECTIONS OF THE DEPARTMENT OF JUSTICE TO CHIO EDISON CC1'??JiY'S AND PENN3YLV21!!A l
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l DISCC'C.2'i "J.OM TH LI?..T.T: _:':T OI JUC'. ICC A :D M20 STAFJ i
Pursuant to Sections 2.740 and 2.740b of the Com:aission's 1
Rules of Practice (10 C.F.R.
SS2.740 and 2.740b), the Department of Justice
(" Department") hereby opposes the " Ohio Edison Company's 1
and Pennsylvania Power Company's Motion For Additional Discovery From the Department of Justice and NRC Staff
(" Additional l
Request") on the grounds stated below.
By leave of the Licensing' Board, the Department was cranted until November 15, 1975, to i
l respond or object to this Motien (Prehearing Conference No.
7, transcript at 1351).
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Ohio Edison and Pennsylvania Power Ccmpany Have Already 2cceived A Detailed List of Allegations From the Department Both Ohio Edison ("OE") and Pennsylvania Power Company
("PPC") are already in possession of a detailed list of allega-tions from the Department as well as a full outline of the matters-in-controversy.
On July 25, 1974,the Board, in Pre-l hearing Conference Order #2, set forth'the issues-in-controversy in the Perry proceeding.
In April 1975, when the issues-in-controversy for the Davis-Besse 2 & 3 proceeding were being con-sidered, the Board rejected Applicants' argument that the matters-in-controversy as listed in Prehearing Conference Order No. 2 were not sufficiently specific and adopted the same matters-in-controversy to govern the Davic-Besse 2 & 3 proceeding, i
Notwithstanding the specificity of the matters-in-
.l controversy in the Perry,end Davis-De.-se 2 3,proceedinca, Applicants, en Aagust 26, 1974 and again on July 16, 1975,
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served the Department with discovery requests seeking even more specific information on the allegations the Department was making against each of the CAPCO companies.
Since no motions to compel further answers were ever filed by the i
Applicants, the Department assumes it answered these requests i
satisfactorily in its filings of December 2 1974 and September 5, 1975.
l In Prchearing Conference Mumber 7, Chairnan Rigler summcd up the situation (Tr. 1336):
l The issues in controversy were framed in pre-I hearing conference order number 2.
At the April j
1975 pre-hearing conference the Board indicated 2
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d that it heard your argument, Applicants' argument about specificity and it was satisfied that the.Tsues it set l
forth in pre-hearing conference order number 2 were sufficiently specific.
Nonetheless, in deference to the Applicant's request for greater specificity we required the other parties to take the additional step fo filing inte -
rogatory answers, amendments or a statement of the case so at the conclusion of discovery and after all the facts were in, the Applicant could t further 4
advised as to how discovery materials *alated back to the issues in controversy.
And the statement of the case was supposed to address each of the issues in controversy and again we had argument as to whether or not the other parties complied with that 1
requirement.
Once more_we were satisfied they did.
i You have had your argument on specif2 city.
We 4
are aware of your position.
I don't find it fruit-t
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ful to go back into whether or not there was cufficient specificity.
Since all of the Applicants, including OE and PPC, are j
fully eppriced of the details of the case to be presented against them and cannot candidly clain pre 3udice, no further diccovery on this matter should bs allowed.
II.
Ohio Edison and Pennsylvania Power Company Will Be Receiving Additional Information on the Department's Allegations In The Pre-Hearing Brief i
Lven if OE and PPC are not now fully apprised of the nature 1
of the case to be presented by the Department, they will be receiving additional information on the Department's allegaticns j
in our prehearing brief and the lists of documentary exhibits and witnesses which are now due to be filed on November 17.
I The Department's prehearing brief contains a discussion of the legal issues involved in this proceeding, a description of 'the alleged anticompetitive behavior of OE and PPC, and specific 3
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citation of many of the documents and witnesses upon which the Department intends to rely in support of these allegations.
For the Department to answer the Additional Request in addition to 1
supplying this material, would be harassment of the Department l
and would s;gnificantly interfere with the preparation of our 1
case.
III.
.The Additional Request Is Unduly Burednsome 1
Requiring the Department to answer the Additional Request would also be unduly burdensome.
This is especially true here where OE and PPC had more than ample opportunity to make a more j
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timely request for such information.
OE and PPC have waited until the eleventh hour, on the very eve of trial, to request more discovery, and have submitted 15 I
cccole:: and multipart cdditional rcquent.' to the Dcpartment.
Applicants were clearly in a positica to datermina uhat, if any, further information they required and to request this i
information at a much earlier date.
While it is true that OE I
i and PPC were not aware of certain specific allegations which are the subject of the Additional Request, a cursory review of l
these requests indicate that the information requested with respect to each allegation is virtually identical.
Thus, OE and PPC could have filed these 15 requests in addition.to, or in place of, the information requested by Applicants in their l
j July 24, 1974 or July 16, 1975 discovery requests to the Department.
In any event, such a request could and should have been made I
I i mmediately after September 5, 1975.
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In the Additional Request, Mr. Benbow appears to attempt to 1
dissociate himself and his clients, OE and PPC, from what Messrs. Charnoff and Reynolds did on behalf of OE and PPC prior i
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to Mr. Benbow's active participation in this proceeding.
The j
record will show that Messrs. Charnoff and Reynolds have fully i
represented OE and PPC; this attempt to argue, sub silentio, that 4
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i its new. counsel needs information that his associates did not i
j request should be sec - merely as an attempt to obtain the I
advantage of an extra round of discovery.
IV.
If This Additional Discovery Is Allowed, The Department I
Requests That It Be Given 60 Da,rs or Until Five Days
(
Prior To The Beginning Of Its Direct Case To Answer
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If the Board.is cf the opinion that this additional dis-I j
covery should be granted, the Department hereby requests that l
it be given 50 days, or until five days prior to the presenta-tica of its direct case, whienaver occurs first, to answar.
The Board has recognized that all of the parties are presently j
l burdened by entensive trial preparation -- worh which muct be l
completed in the near future.
As the reccrd in this case will show, the Department will be presenting an extensive case and is in need of adequate time to develop that case.
Requiring the Department to stop trial preparation in order to answer burdensome and unnecessary discovery requests would be an 1
injustice and could cause further delay in this proceeding.
4 Thus, the Department requests that, if OE and PPC are per-l l
mitted to conduct additional discovery, the Department be l
given 60 days or until five days prior to the presentation of i
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its direct case, in which to answer.
Since OE and PPC would still i
have months to prepare their defenses, no prejudice would thereby result.
i CONCLUSION For the foregoing reasons, the Department requests the 1
I Board to deny the Additional Request.
Respectfully submitted,
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STEVEN M. CliARNO
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1 RUTH GREENSPAN BELL i
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MELVIN G.
BERGER 4
Attorneys, Antitrust Division j
Department of Justice Washii.7 ton', D. C.
20530 l
l Dated:
November 14, 1975 4
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4
e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
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The Toledo Edison Company and
)
The Cleveland Electric Illuminating
)
Docket Nos. 50-346A Company
)
50-500A (Davis-Besse Nuclear Power Station,
)
50-501A Units 1, 2 and 3)
)
)
The Cleveland Electric Illuminating
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Docket Nos. 50-440A Company, et al.
")
50-441A (Perry Nuclear Power Plant,
)
Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of OBJECTIONS OF THE DEPARTMENT OF JUSTICE TO OHIO EDISON COIIPANY'S AND PENNSYLVANIA POWER COMPANY'S MOTION FOR ADDITIONAL DISCOVERY FROM THE DEPARTMENT OF JUSTICE AND NRC STAFF 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 14th day of November 1975.
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STEVEN M.
CHA2NO Attorney, Antitrust Division Department of Justice 7
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ATTACHMENT Douglas Rigler, Esquire Benjamin H. Vogler, Esquire Chairman Roy P.
Lessy, Jr., Esquire Atomic Safety and Licensing Office of the General Counsel Board Nuclear Regulatory Commission Foley, Lardner, Hollabaugh Washington, D.C.
20555
& Jacobs 815 Connecticut Ave., N.W.
Gerald Charnoff, Esquire Washington, D.C.
20006 William Bradford Reynolds, Esquire Shaw, Pittman, Potts & Trowbridge Ivan W., Smith, Esquire 910 Seventeenth Street, N.W.
Atomic Safety and Licensing Washington, D.C.
20006 Board Nuclear Regulatory Commission Jack R.
Goldberg, Esquire Washington, D.C.
20555 Office of the Executive Legal Director John M.
Frysiak, Esquire Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Board Nuclear Regulatory Commission Donald H.
Hauser, Esquire Washington, D.C.
20555 Corporate Solicitor The Cleveland Electric Atomic Safety and Licensing Illuminating Company Board Panel Post Offica Bor 5000
- ucler Requi.at.cy C-mic.sion Clevelar d, Ohio G 101 Washington, D.C.
20535 John Lansdale.,Jr., Esquire Frank W.
Karas Co::, Langford & Brown Chief, Public Proceedings 21 Dupont Circle, N.W.
Staff Washington, D.C.
20036 Of fice of the Secre cary Nuclear Regulatory Commission Chris Schraff, Esquire Washington, D.C.
20555 Office of Attorney General State of Ohio Abraham Braitman State House Office of Antitrust and Columbus, Ohio 43215 Indemnity Nuclear Regulatory Ccmmission Karen H.
Adkins, Esquire Washington, D.C.
20555 Assistant Atrcrney General Antitrust Section Herbert R.
Whitting, Esquire 30 East Broad Street Robert D.
Hart, Esquire 15th Ficor Law Department Columbus, Ohio 43215 City Hall Cleveland, Ohio 44114 Leslie Henry, Esquire Fuller, Henry, Hodge Reuben Goldberg, Esquire
& Snyder David C.
Hjelmfelt, Esquire 300 Madison Avenue 1700 Pennsylvania Avenue, N.W.
Toledo, Ohio 43604 Suite 550 Washington, D.C.
20006
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.-6.
Thomas A.
Kayuha, Esquire James B.
Davis, Esquire Ohio Edison Company Robert D.
Hart, Esquire 47 North Main Street Director of Law Akron, Ohio 44308 City of Cleveland 213 City Hall David M. Olds, Esquire Cleveland, Ohio 44114 Reed, Smith, Shaw & McClay 747 Union Trust Building Lee A.Rau, Esquire Pittsburgh, Pennsylvania 15219
~ Joseph A.
Rieser, Jr., Esquire Reed, Smith,Shaw s McClay Mr. Raymond Kudukis Suite 404 Director of Utilities Madison Building City of Cleveland Washington, D.C.
20005 1201 Lak'eside Avenue Cleveland, Ohio 44114 William S.
Lerach, Esquire Reed, Smith Shaw & McClay Wallace L.
Duncan, Esquire 747 Union Trust Building Jon T.
Brown, Esquire Post Office Box 2009 Duncan, Brown, Weinberg Pittsburgh, Pennsylvania 15230
& Palmer 1700 Pennsylvania Avenue, N.W.
Michael M.
Briley, Esquire Washington, D.C.
20006 Roger P.
Klee, Esquire Fuller, Henry, Hodge & Snyder Edward A.
Matto, Ecquire 300 Madison Avenue Assistant Attorney General Toledo, Ohio 43604 Chief, Antitrust Section 30 East Bread S baret 15th Floor Columbus, Ohio 43215 Richard M.
Firestone Assistant Attorney General An.titrust Section 30 East Broad Street 15th Floor Col'umbus, Ohio 43215 Victor F.
Greenslade, Jr., Esquire Principal Staff Counsel The Cleveland Electric Illuminating Ccmpany Post Office Box 5000 Cleveland, Ohio 44101 Robert P. Mone, Esquire George, Greek, King, McMahon
& McConnaughey Columbus Center 100 East Broad Street Columbus, Ohio 43215 m e-