ML19329C798
| ML19329C798 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 11/15/1975 |
| From: | Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002190909 | |
| Download: ML19329C798 (27) | |
Text
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N
^ vember 15, 1975,/
4 UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION Before the Atcmic Safety and Licensing Board In the Matter of
)
)
THE TOLEDO EDISON COMPANY and
)
THE CLEVELAND ELECTRIC ILLUMINATING )
Docket No.~'5.0 346A i
COMPANY
)
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(Davis-Besse Nuclear Power Station, )
i Unit 1)
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)
THE CLEVELAND ELECTRIC ILLUMINATING )
)
Docket Nos. 50-440A (Perry Nuclear Power Plant,
)
50-441A Un'ts 1 and 2)
)
)
THE TOLEDO EDISON COMPANY, ET AL.
)
(Davis-Besse Nuclear Power Station, )
Docket Nos. 50-500A Units 2 and 3)
)
50-501A l
MOTION OF THE CLEVELAND ELECTRIC ILLUMINATING COMPANY TO QUASH SUBPOENA ISSUED AT THE REQUEST OF THE DEPARTMENT OF JUSTICE 1.
un October 31, 1975, thia Board issued a sub-poena addressed to The Cleveland Electric Illuminating Company ("CEI") at the request of the Department of Justice
(" Department").
The subpoena was served on CEI on November 10, 1975 It dire:ts CEI to produce, at a designated time 3
and place, certain documentation for use in the present pro-ceeding.
The material covered by the subpoena is already 1
in the possession of the Department as a result of CEI's i
l earlier compliance with Civil Investicacive Demand No. 16 9 1
("CID").
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Pursuant to Section 2.720(f) of the Commis-l l
sion's Rules of Practice, 10 C.F.R. $2.720(f) (1975), CEI lj hereby moved to quash the subpoena.
The Department's 1
l efforts to gain use of the CID-material indirectly by sub-i poena, knowing full well that it is unavailable to the Department in this proceeding dit?ctly, should be condemned.
4 Such a ploy is not only untimely; it is in conflict with the requirements of the Commission's Rules, and contrary to the law.
i 3
On May 1, 1975, the Assistant Attorney General t
]
in charge of the Antitrust Division issued the CID in question to CEI.
The documents requested therein were fur-i nished to the Department on June 27, 1975 It was not until October 10, 1975, hosever, that the Department, by way of 1
letter to counsel for Applicants, indicated for the first 4
time an intention to use in this proceeding material re-ceived pursuant to the CID.
By letter of October 21, 1975, counsel for Applicants strongly objected to the implication l
.that CID-material was available for use in.this proceeding and advised the Department that all steps it took in this
'I direction would be resisted by CEI as unlawful.
i 4.
Copies of the subpoena now under considera-tion were then circulated to all Applic. ants and all other 1
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. I
. parties on October 31, 1975 In the memorandum supporting issuance of the subpoena, the Department inexplicably chose to disclose publicly the identity of the documents sought and the Department's self-serving characterisation of their contents.
On November 3, 19'3, the undersigned counsel in a letter to this Board tc exception to the Department's subpoena request as being a clear breach of the confidentiality which by statute is to enshroud CID-material held by the Department in its custodial capacity.
As a follow-up to this letter, CEI has j ust filed in the United States District Court for the District of Columbia a petition pursuant to Section 5(c) of the Antitrust Civil Process Act, 15 U.S.C. 51314(c) (1970), seeking an injunc-tion against further disclosure and other relief.1/
5 It la CEI's position here that the subpoena in question must be quashed.
Secticd 2.720(a) of the Con-mission's Rules of Practice does not extend the Commission's subpoena power tu authorize the issuance of a discovery subpoena of this sort against CEI, a party'to this proceed-ing.
This was made clear by the Appeal Bcard in Consumers Power Co. (Midland Plant, Units 1 and 2 ), ALAB-35, '4 ASH-1218, j
1/
A copy of the petition is attached to this motion as Exhibit "A".
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241 (September 21, 1970).
As there explained:
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The Commission's Rules of Prac-tice, 10 C.F.R. Part 2, include three separate sections pertaining i
to the production of documents in connection with a licensing pro-I.
ceeding, Section 2.720 (subpoenas),
Section 2.741 (discovery and pro-duction of documents), and Sec-l tion 2.744 (production of AEC [NRC]
records and documents).
In adopting l
three separate sections to cover i
this subj ect, we believe that the l
Commission did not intend to estab-l lish duplicative procedures for dealing with the same documents.
We believe, instead, that the Com-mission contemplated a plan in which each section would establish a procedure to govern the produc-tion of documents depending on the circumstances involved -- Section 2.720 to apply to records in the l
possession of persons who are not parties to the proceeding; Section 2.741 to records of parties other than the regulatory staff; and i
Section 2.744 to records of the i
regulatory staff.
[ footnotes j
omitted]
Id. at 245-47.
[ Emphasis added]
1 6.
There is thus no room under the Commission's j
Rules to invoke the Section 2.720 subpoena power in an effort i
j to obtain documentary material frcm a party.
As the Consumer J
Power Co. decision declares, the only available avenue open to the Department if it wished to obtain documents from 4
)
CEI was to file a request for document production under Sec-j tion 2.741.
This procedure was, of course, available to the I
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t Department for a full year (August 1, 1974-August 1, 1975).
'During that time, it directed not one, but two separate i
document requests to CEI.
Both were fully answered.
Not-g withstanding that the Department's CID issued on May 1, I
1975, and CEI produced documents in response thereto on June 27, 1975 -- well before prehearing discovery came to i
a close (August 1, 1975) -- no discovery request for the i
CID-material was made here.
7 The prehearing discovery period has long since t
j concluded.
Any attempt now to reopen discovery and request anew the documents referenced in th'e subpoena under Section 2.741 would be grossly out of time.
See Commonwealth Ed-ison Co. (Zion Station, Units 1 and 2), ALAB-196, RAI-74-4, 457, 463 (April 25, 1974) (" subpoena or discovery requests filed outside time period.
. are to be regarded as crima facie unreasonable"),
Having had the full benefit of a long and ext'ensive discovery period, during which it was given access to more than 97,000 document pages produced from CEI's l
files, the Department is in no position to come in now in i
an untimely fashion'to request an additional document pro-l duction.
If requests of this sort were sanctioned by this i
Board there would be no meaningful end to the' discovery process.
Any time an adversary thought he needed just one i
more document, he could come to the Licensing Board with i
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, the trumped up argument that this latest discovered material will determine the outcome of the proceeding.
Such a pro-cedure is not only inconsistent with orderly prehearing procedures; it is wholly inconsistent with the Commission's own rules, which frown on such tactics once a Section 2.752 prehearing conference has been held -- which, of course, is the case here.
only extra-ordinary circumstances should permit discovery at this late date in the proceeding.
8.
Furthermore, the innuendo implicit in the De-partment's application for the subpoena, that CEI did not in fact comply with the Department's original requests for production of documents, and therefore the need for the sub-poena, is as groundless as its earlier charge to the same 1
effect contained in the October 10, 1975 letter from Mr. Charno to Mr. Reynolds.
As reflected in the affidavit of Mr. Donald H. Hauser, CEI complied fully with the Department's earlier l
document raquests in this proceeding.'f l
o 9
'dhat is patently clear from the Department's ill-fated attempt to invoke the subpoena power of this Board, is that the Department is attempting to acccmplish indirectly 2/
The Hauser Affidavit is attached hereto as Exhibit "B".
. what the law says it cannot do directly.
The Department is being less than candid with the Board when it states that "the Department dces not seek to directly use docu-ments obtained pursuant to a Civil Investigation Demand."
(Application for Subpoena, p.
10, filed October 31, 1975).
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Ite intended effect of the present subpoena is to obtain permission from this Board to introduce at the evidentiary hearing the very CID-material which is unavailable to the t
Department in this forum under the statute pursuant to i
l which the CID issued.
i l
10.
While the Department asserts baldly that ma-i terial produced by means of a CID may be used in this pro-ceeding (Application for Subpoena, pp. 7-10), the plain lan-guage of the relevant statute is clearly to the contrary.
A CID may be issued only in accordance with the provisions of the Antitrust Civil Process Act, 15 U.S.C. 551311-14 (1970).
That Act provides in relevant part as follows:
Whenever the Attorney General, or the Assistant Attorney General in charge of the Antitrust Division has reason to believe'that any person under investigation may be in possession * *
- of any documentary material relevant to a civil antitrust investigation, he may prior to the institution of a civil or criminal proceeding thereon, issue * *
- a civil investi-gative demand requiring such person to produce such material for exami-nation. [15 U.S.C. $1312(a)(1970)]
l l
The above statutory provision is unique because it provides for broad investigative powers prior to the institution of any court action and without the normal constraints of relevancy, both as to time and subject matter, that attach to the more traditional discovery and investigatory pro-cedures associated with pending litigation, 11.
In partial response to this fact, the Act imposes strict " custodial" requirements on the Department with respect to material turned over in this context.
It specifically requires that the ClO " identify the custodian to whom [the] material chall be made available," 15 U.S.C.
S1312(b)(4) (1970); that the custodian be an " antitrust in-vestigator," 15 U.S.C. 51313(a) (1970), such person being defined as "any attorney or in..stigator employed by the Department of Justice who is charged with the duty of en-forcing or carrying into effect any antitrust law," 15 U.S.C.
51311(e) (1970);2/ and tnat "[w]hile in the possession of the custodian, no material so creduced shall be available for examination, without the consent of the person who pre-duced such material by any individual other than a duly 3
3/
In the petition filed in district court, CEI alleges, inter alia, that on suspicion and belief the CID may well have issued as a veiled excuse to engage in discovery for purposes of this proceeding which falls outside the scope of discovery allowec by this Board, or that if a lawful inves-tigation was begun it has been terminated and the Decartment is no longer pursuing a separate investigation of the company as required by the statute, 15 U.S.C. 551312(a) and (b)(1)
(1970.
(Petition, 511)
. authorized officer, member, or emoloyee of the Decartment of Justice. "
15 U.S.C. 51313(c) [ emphasis added].4/
Any i
attempt by the Department to introduce the CID-material in this proceeding would run afoul of this obligation.
None of the other parties, including the other Applicants, is privileged to see the material, nor can the material be disclosed even to this Board.5/
4/
CEI woula again remind this Board that the Japartment has already breached its duty of confidentiality by disclosing to all parties self-serving characterizations of the CID-material.
As stated in the November 3, 1975 letter to this Board, CEI believes it is imperative that this Board take whatever steps are deemed necessary to insure that no further improper dis-closures occur.
5/
The only exception to this strict requirement of con-fidentiality is that
[w]henever any attorney has been designated to appear on behalf of the United States before any court or grand jury in any case or pro-ceeding involving an alleged anti-trust violation, the custodian may deliver to such attorney such docu-mentary material in the possession of the custodian as such attorney determines to be required for r.se in the presentation on behalf of the United States.
[15 U.S.C.
51313(d) (1970).]
But even then, the disclosure of material is
.o be kept to a minimum.
At the conclusion of the case the attorney is to return to the custodian that material which has not been intro-duced into evidence.
Id.
And at the conclusion of the case, or if no case has been brought at the conclusion of the anti-trust investigation, or if the antitrust investigation has not concluded, "within a reasonable time after completion of the examination and analysis of all evidence assembled," the cus-todian must return to the person who produced the material, all material not introduced into evidence.
15 U.S.C.
SS1313(e) and (f) (1970).
I i
t s 4 12.
Moreover, by the clear terms of the statute, disclosure of the CID-material in this proceeding would be I
contrary to law.
As just noted (n. 5, supra), use of ma-terial obtained pursuant to a CID is confined to a " court or grand jury" proceeding.
15 U.S.C. 51313(d) (1970).
This administrative licensing proceeding cannot properly be classified in either category.
Cf. In re Grand Jury Pro-ceeding, 309 v.2d 440, 443 44 (3d Cir. 1902) (grand jury proceeding not to be disclosed to Federal Trada Commission, since FTC investigation not a judicial proceeding).
One clear difference relates to the fact that the Beard here has the responsibility under Section 105c to determine only if there might exist antitrust inconsistencies as a result of issuance of the license involved.
This is to be compared with a court or grand jury proceeding which focuses on antitrust violations, It is the latter standard which is referenced specifically in the CID statute --
i.e.,
"any act or omission in violation of any antitrust law or antitrust order."
15 U.S.C. S1311(d) (1970).
13 No good reason has been suggested why the unique, statutory method devised by Congress to aid the De-partment in antitrust investigations contemplating civil or criminal Judicial action should be extended beyond its in-tended purpose to provide the Department with yet another I
.~ _
vehicle for discovery in administrative proceedings such as the one involved here.
If the Department is going to avail itself of the investigative power provided by the Antitrust Civil Process Act, it has a special obligation to follow strictly the legislative scheme Congress devised 2
for such activity.
That scheme does not contemplate the l
use in this context of privileged CID-material received pur-suant to a legislative promise of confidentiality, except in the limited circumstance of disclosure necessary for the presentation of a case before a " court or grand jury."
14.
The Department, in an effort to get around the clear statutory prohibition against disclosure of the CID-ma'terial, argues that the " analogous situation of the utili-sation of documents obtained pursuant to antitrust Grand Jury subpoenas duces tecum shed some light on the government's l
obligation," under the statute.
(Application for Subpoena, p.
8)
The case of grand jury subpoenas, however, is neither analogous to the present situation, nor la the law cn their use so clear as to support the Department's pcsition.
15 Reference is made to Section 3(c)(1) of the Act (15 U.S.C.
51312(c)(1) (1c70)) as a basis for suggesting a re-lationship between grand jury subpoenas and a CID.
(Applica-tion for Subpoena, p.
8, n. 1)
But that provision merely states that the validity of the CID, when originally issued, is to 1
~ - _ -
,1 be tested by the standards for issuing a grand jury sub-poena.
Thus, if the CID demand would require disclosure of privileged or otherwise protected material, or if the demand was not stated with sufficient particularity, or if compliance would be excessivel;' burdensome or would run aroul of any other standard whi;h controls the issuance of a grand jury subpoena, the drf.and itself can be quashed pur-suant to 15 U.S.C. 51314(>' (1970).
It is disingenuous for the Department to argue, on the basis of this provision, that the disclosure cf material actually produced pursuant to a CID is goven;ed by the disclosure provisions for grand jury material.
16.
In the first place, the relevant statutory lan-guage pertinent to grand jury material is different.
'dhereas disclosure of CID-material is limited to a court or grand jury proceeding involving an antitrust violation, the disclosure provision relevant to grand jury proceedings is significantly broader.
Disclosure of matters occurring before the grand jury other than its deliber-ations and the vose of any juror may be made to the attorney for the govern-ment for use in the cerformance of their duties.
[ Fed.
R.
Crim.
P.
6(e); en-phasis added]
The cases relied upon by the Department (Application for Sub-poena, pp. 8-9) explicitly rest their decisions on the "per-
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! l formance of their dutics" language from Rule 6(e).
In United States v. General Electric Co., 209 F.
Supp. 197 (E.D. Pa. 1962), the court held that language to include
'l "any kind of legal proceeding, civil or criminal" in which I
the United States is a party in interest.
Id. at 199,
,f citing language presently codified at 28 U.S.C.
3(a)
E970).
It is no wonder that under such a broad standard disclosure may be justi11ed ir certain circumstances.
But disclosure on these terms is certainly not a persuasive rea-6/
son for disclosing the CID-material.- '
17.
Seccnd, the nature of the privilege granted is different.
Under the Antitrust Civil Procuss Act, the de-cision to disclose material or keep it confidential belongs to the person who produces the material.
15 U.S.C.
51313(c)
(1970).
Thus, in the present case the privilege against disclosure is CEI's.
In comparison, it has been held that Rule 6(e) creates a privilege for the benefit of the grand jury.
What is protected are the proceedings of the grand jury and not the evidence introduced before the grand jury.
of There are further examples of statutory differences that cannot be ignored.
In In re Petroleum Industry Investi-gation, 152 F. Supp. 646, 647 (E.D. Va. 1957), the court held that the Department of Justice could retain copies of the materials produced for the grand jury even after the investi-sation terminated.
That view is consis. tent with the conclusion of the court cited by the Department.
(Application for Sub-poena, p. 9).
Cn the other hand, the Antitrust Civil Process Act, specifically states that the Department c.annot, as a general matter, retain copies of all documents obtained pursuant to a CID.
15 U.S.C. 51313(e) (1970).
See, e.g.,
United States v. Interstate Dress Carriers, Inc.,
280 F.2d 52, 54 (2d Cir. 1960).
If such a rule were read into the Antitrust Civil Process Act, it would be equivalent to saying that what is protected is the Department's in-vestigation and not the material produced pursuant to the CID.
The absurdity of that conclusion further undersecres the material differences between a grand jury subpoena and a CID.
13.
And third, the purposes behind the issuance of a grand jury subpoena and a CID are different.
It has been held that a CID must be confined to material relevant to de-termine whether an antitrust violation has been committed in the past and a complaint shculd issue, and not include in-vestigations of activity that might be a violation in the future.
United States v. Union Oil Co.,
333 F.2d 29, 31 (9th Cir. 1965) (CID void where part of investigation into proposed acquisition that if consummated might violate Clayton Act).
Thus, as stated in Petition of Gold Bond Stamn Co.,
221 F. Supp. 391, 393 (D. Minn. 1963), affirmed, 325 F.2d 1018 (Sth Cir. 1964), the basic aim of the Antitrust Civil Process Act is to provid[e] a ccmpulsory pre-ccmplaint procedure through which the Anti-trust Division can obtain documentary information upon which it can make a determination of whether or not a person has committed a civil violation of the antitrust lays.
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. By contrast, the scope of the grand jury subpoena is sig-nificantly less constrained.
Its purpose is to assist a free-wheeling investigation into all matters brought before the grand jury, subject only to the limitaticn of abuse of process.
- See, e.g., United States v. Georgq, 444 F.2d 310, 314 (6th Cir. 1971).
To ignore these differences by now expanding the use of CID-material in the manner urged by the Department would pervert tr.e limited aims of Congress in enacting the Antitrust Civil Process Act.
19 It is clear that a CID is not the general in-vestigative tool that a grand jury subpoena is.
Its function is more limited and the use that can be made of material re-ceived pursuant to a demand is similarly more limited.
At the core of the reasoning in In re Petroleum Investigation, sucra, (Application for Subpoena, p.
9), is that the grand jury subpoena may be just the first step in an investigation that may lead to criminal, or civil, or administrative accion, or perhaps even some other type of investigation.
But a CID is the first step in an investigation that can only lead to an action in federal court or before a grand jury.
And it is in that judicial context alone that the Department is permitted to make use of the CID-materials it obtains.
20.
In these circumstances, to the extent that de-cisions involving grand jury subpoenas provide any guidance
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. on the c".estion of the proper treatment of CID material in the present context, the decision in In re Grand Jury Investigation (General Motors Core.), 210 F.
Supp. 904 (S.D.N.Y. 1962),7/ would appear to be most relevant.
Dur-ing the course of a grand jury investigation, General Motors had produced doculnents pursuant to a grand jury subpoena duces tecum under a protective order providing for access only to certain designated government attorneys "in fur-therance of the grand jury investigation and thereafter for use in connection with any proceeding or proceedings arising as a result of said investigation."
Id. at 904.
That pro-tective order effectively read into Rule 6(e) a disclosure limitation similar to that provided for in the Antitrust 1
Civi] Process Act.
In light of such an order the court re-fused to allow the government to use the material in a pro-ceeding not arising from the grand jury investigation.
Id.
at 905 If the Department is going to rely on grand jury subpcena cases, the above General Motors decision provides the best analogy for reaching the correct result here.
7/
This case involved different material under slightly varying factual circumstances than that adjudicated in In re Grand Jury Investication (General tiotors Corn.) 32 F.R.D.
1/ 5 ( S. D..'J. Y. ), appeal dismissed, 316 F.2d 533 (2d Cir.),
cert. denied, 375 U.S. 802 (1963), and cited by the Department at pp. 8-9.
- m. -
'JHEREFORE, CEI moves this Board to quash the sub-poena issued at the request of the Department on October 31, 1975 Respectfully submitted, SHAW, PITTMAN, POTTS & TRO'43 RIDGE By:
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_,._ L am Wm. Bradford,Reynoldcg Gerald Charnoff Counsel for Applicants Dated:
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.m ANTITRU3T 00C'C:ENT CUSTCDIAN, FOR A PRCTECTIV2 OROZR / ND "OR I !Ji': CTIG AND OT:!ER RELI:7 1.
This is an action to prevent the further unauthorized and illegal usa and disclosure by the Respendents, or persons acting en their behalf er in cencart with them, of privileged and confidential documents, or the contents or descriptions thereof, which are copies of documents contained in the files of the Petitioner which have core inte the possession and I
,i control of the Respondents by virtue of Petitioner's compliance I,
with Civil Investigative Demand No. 1629 and to require the l
recall and prohibit the further use or disclosure of descriptions or designaticas of such confidential documents already disclosed 6
to others.
i 2.
This action arises under the provisions of the Anti-t trust Civil Process Act, 15 U.S.C.
551311-1314 and Rule 25(c) of the Federal Rules of Civil Procedure. This Court has j
jurisdiction pursuant to the provisions of $5(c) of the Antitrust Civil Process Act (15 U.S.C. 51314(c)).
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3.
Petitioner, T':e Cleveland Electric Illuminating i
i Company, is :n Ohio Corporat ton.eith its principal of fice..ad i
place of business at Cleveland, Ohio.
l 4.
Each of the Respondents is an at orney employed by the t.
Department of Jus tice.
Said Respond:nts were collectively designated as custadians or deputy custodians under the provi-sions of $4(a) of said Act (15 U. S. C. 513'_3(a)) to whom the t
documentary material required to be made available under said Civil Investi;ative Decand was to be delivered and to when such
=aterial was delivered. As such, they and each of them are officially respcasible for the usa made of the Petitioner's doc:nunts, er ccpies thereof, obtained oursuant to said Derand, a copy of which is attached hereto, marked Ei 'ht: A and =ada a part hareto.
The Respondents, other than Cyohert, whose office is in Cleveland. Chio, have their ef fica and placa of business at the Dep1rtrent cf Justice in the District of ColunSia at
';hich place said docu 2nts or copies t'.arcof are kept and held.
5.
Civil Investigative Demand :!o. 1629 was issued on or i
about the first day of "ay, 1975.
Cn June 27, 1975, Petitioner delivered to the Respcndents more than 300 documents in full I
cceplianca,:ith said Civil Investigative Demand as slightly modified by agreement.
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3v the e:mress provisions of the Antitrust Civil t
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Process Act, the docunentary raterial produced as aforesaid may not, without the ecnsent o f Petitiener, be examined by any
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i individual other than a dulv authoriced efficer, n:=ber or t
s employee of the Department of Justice and may be used only by an attorney designated to appear on behalf of the United States before a court or grand jury in a case or proceeding involving P
an alleged antitrust violatien. Petiticner expressly refused to.
i censent to the use of such nacerial ether than as provided l
by such statute as aforesaid.
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7.
No civil or criminal action haa been brought by the j
Department of Justice against the Petitioner nor is the United i
l States appearing before any court or grand jury in any c. se or l
1 proceeding involving any alleged antitrust violatien by 1
Petitlener.
8.
There is pending before the United States District i
l Court for the Northern District of Chio an action brought by the City of Cleveland, Ohio, against the Petitioner herein, i
l and four other electric companies, alleging violations of the antitrust laws which allegaticns embrace, in part, the subj ect matter of the documents produced under said Civil Investigative Demand No. 1629.
Petitiener is also an applicant befera the Nuclear Regulatory Commission alon; with certain other electric cc=panias for licensee to construct and operata nuclear power plants and a party to a consolidated proceeding captiened In The "atter Of Toledo Edisen Company, et al. (Docket Mos.
50-?46A, 50-440A, 50-441A, 50-500A and 50-501A) involving an inquiry as to whether the issuance of the licenses applied for in such proceedings, or any of them, will create or maintain a situatien inconsistent with the antitrust laws under the provi-siens of 5105(c) of the Atenic Energy Act of 1954, as c= ended (42 U.S.C. 12135(c)). Section 105(c) is not an antitrust law I
as defined by the Antitrust Civil Precess Act nor is said i
proceedin; before a court or grand j uiy. Extensive discovery has been had by the United States and others in connection with k
said proceeding before the Atomic Safety and Licensing 3oard in the course of which this Petitioner, alone, has produced approximately 97.000 documents. Discovery has been closed in i
said proceeding, although it was open and still in progress at the time of service en this Petitioner of the Civil Investigative Demand aforesaid. Written testimeny has been filed in said i
Nuclear Regulatory Commission proceeding and hearings are i
scheduled to begin on December 1, 1975.
I I
i i
I t
i f
f 4_
9.
The demands of said Civil Invastigative Demand over-lapped in part the discovery demands aircady made by the Depart-ment of Justice acting through the Respondent, Charno, and others, in said Nuclear Regulatory proceeding. Iloweve r, the demand in the Civil Investigative Ocnand.ient bac.; five years further in tire than the cut-off date prescribed by the Atomic Safety and Licensing Board which is conducting said Fuclear Regulatory Ccmmission proceeding. A number of the documents produced under the Civil Investigstive Demand are the same as those made availa-ble to Respondents during discovery in the Nuclear Regulatory proceeding. Petitioner censents to the use of such documents in said Nuclear Regulatory Cc= mission preceeding and the alleda-tions of this Petition are no: to be understood as directed to such dea" ents.
10.
In spite of tha prohibitions of the Antitrust Civil Process Act and the requirements of confidentiality imposed upon the Respondents by said Act and their designation as custodians
)
l or deputy custodians of said docucents under :he provisions cf
)
said Act, the Respcndents, in violation of the express require-
=ents of said statute, have (a) disclosed the centents and
, subject matte cf a substantial number of said documents in the course of applying to the Atenic Safety and Licensing Bosrd, sitting in the 'L: clear Regulatory Commissicn proceeding as aforesaid, for the issuance of 2 suopoena to this Pctitioner
- quiring the p. duction cf said documents on or before November 15, 1975, Ib) have caused the aforesaid Atomic Safety and Licensing Board to issue said subpoena, which was serv 2d upon Petitioner on or about November 10, 1975, (c) propose to and will, unless restrained by this Court, disclose said documents to the parties and counsel in said litigation, one of whoc is the City of Cleveland rhich has an antitrust suit pending a;ainst this Petitiener as aforesaid, and (d) propose to and will, unless restrained by this Court, use said documents in said Nuclear
l.
t
?
3 Pu;ul itory Commi;sion proceedin;; and permit t":.e i r ne by the City of Cleveland, although said Nuclear Regulatorf proceedinr, is not before a court or grand jury and does not in">1ve an alleged violation of the antitrust laws as aforesaid. The
'Jnited States i not involved in the pending suit by the City of Cleveland against this Petiti:ncr and others.
11.
Petitionar suspects and t e. eve; and therefore alleges that in view of the other duties and activities of the Respondents i
and the circumstances surrounding the conduct of the Nuclear Regulatory C:mmis sion proceedi:.g, the 33parate and independent antitrust investi;atian required to be conductad pursuant to the provisions of the Antitrust Civil Prc:2:s Act either uns, contrary
~.o lau, initiatsd primarily to supplement the discovery afforded
.e the Atomi: Safety and Licensing Scard or, if it e;ce was initiated, has been terminated, and that Respondents unlay-fully and contrarv to the requirements of that Act continua in possession of said documentary material.
12.
Petitionar has no adequate remedy at 129 k lr,arrn,a-,
e r. r I v-u.. -,.s
.a.oAv. a-
.nc c.m_m,..
e
.v
.t v
A.
That an injunction be issued requiring,. tith respect I
I to the docuran7s delivered by Petitioner to the R2:pondents pursuant to Civil Investigative Demand "o.
1529, that all copies i
thereof, or summaries cr descriptions thereof, be returned by all persons who shall have notica of such order to the custodians, the Respondents merein, and that Respendants be r2 quired 1
personally to visit each person to whcm said documents or l
summaries er descriptions have been deltvered and retrieve the 1
l same.
I B.
That an injunction and protective order be issued directing Respondents and each of them not to disclose any of the documents delivered to them pursuant to Civil Investi;2-j tive Oemand "o.
1629 or ecpies or summaries or descriptions f
I i
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i 1
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l
. thereof, to any person, inclulin-attorneys of the Department of Ju;tice, without the further order of this Court and enjoining any person who chall have notice of said order from utilizin,,
in any proceedin; anf of the documents produced by Petitioner in renponse to said Civil Investigative Decand No. 1629 and which are designated or described or summari:ed in the papers circulate 3 by the Respcndents in the : ucicar Pegulatory i
Commission procee ding.
C.
That 2espondents and each of them be required to return to Petitioner all of the dccuments delivered to them pursuant to Civil Investigative Demand No. 1629 and all copies.
summaries er d22cripti:na thereof.
Respectfully submitted,
(<
lt
.,a.. \\. t _
,\\
s John Lansdaic 21 D[ent Circle,
- 3. '1 Washin:; ten.
D.C.
20036 Telephone (202) 735-0200 Attcrney for Petitioner of Counsel:
Jeffrey Kemarou Cox, Lang, ford I, 3rcun 21 Dupont Circle, N.U.
Washin3 ten, D.C.
20026 i
Richard Miller Vice Presidant--yinance--Gen 2ral Counsel The Cle'zaland Zlactric Illuminatin; Ccrpany Donald H. Hauser General Attorr-The Claveland I'.e:tri: Illuminatinz Ocepany P.O.
Cox 5020 55 Pualic Squara Cleveland, Ohia 14131 Telephone (216) 523-1350 November 3, 1975 t
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I UNITED STATES OF AMERICA NUCLEAF REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
TiiE TQLEDO EDISON COMPANY and
)
THE CLEVELAND ELECTRIC ILLUMINATING )
Docket No. 50-346A CCMPANY
)
(Davis-Besse Nuclear Power Station, )
Unit 1)
)
)
THE CLEVELAND ELECTRIC ILLUMINATINJ )
)
Docket Nos. 50-44CA (Perry Nuclear Power Plant,
)
50-441A Units 1 and 2)
)
)
THE TOLEDO EDISON COMPANY, ET AL.
)
(Davis-Besse Nuclear Power Station, )
Docket Nos. 50-500A Units 2 and 3)
)
50-501a CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing
" Motion Of The Cleveland Electric Illuminating Ccmpany To Quash Subpoena Issued At The Request Of The Department Of Justice" were served upon each of the persons listed on the attached Service List, by hand delivering a copy to those persons in the 'dashington, D C.
area and by r. ailing a copy, postage prepaid, to all othert, 911 on this 15th day of November, 1975 S HA*d, PITTMAN, POTTS & TROWBRIDGE
). p... I N. A1--.\\
u _1 <.1 L By:
s CounselforApplicants(
Wm. Bradford Reynolds
UllITED STATES OF AMERICA liUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Mat ter of
)
)
THE TOLED] EDISOI COMPANY and
)
THE CLE7LLA !D ELECTRIC ILLUMINATI!!G
)
NRC Docket No. 50-346A COMPh:Y
)
(Davis-desse Nuclear Power Station,
)
UnJc 1)
)
)
THE CLEVELA: D ELECTRIC ILLUMII!ATING
)
)
!!RC Doc l:et IIo s. 50-440A (Perry ::uclear Pc. er Plant,
)
50-4hlA Units 1 and 2)
)
)
THE TOLEDO EDISCII COMPANY, ET AL.
)
(Davis-Besse Nuclear Power Station,
)
IIRC Docket Nos. 50-500A Units 2 and 3)
)
50-501A SERVICE LIST Douglas e.
Rigler, Esq.
Mr. Chase R.
Stephens Chairman, Atcmic S2fety and Docketing & Service Section Licensing Board U.S. Nuclear Regulatory Commission Foley, Lardncr, Hollabaugh 1717 H Street, N.W.
and Jacobs Washington, D.
C.
20006 Cnanin Building - Suita 206 815 Connecticut Avenue, N.N.
Benj amin H.
Vogler, Esq.
Washington, D.
C.
20006
.Roy P.
Lessy, Jr., Esq.
Jack R. Goldberg, Esq.
Ivan W.
Smith, Esq.
Office of the Executive Legal Direc :
Atomic Safety and Licensing U.S. Nuclear Regulatcry Commissica Board Panel Washington, D.
C.
20555 U.S.
Nuclear Regulatory Ccrmission Washington, D.
C.
20555 Joseph J.
Caunders, Esq.
Steven M.
Charno, Esq.
John M.
Frysiak, Esq.
Melvin G.
Berger, Esq.
Atenic Safety and Licensing Anthony G.
Aiuvalasit, Esq.
Board Panel Ruth Greenspan Bell, Esq.
U.S.
Nuc1 car Reculatory Commission Janet R.
Urban, Esq.
Washincton, D.
C.
20555 Antitrust Division Department of Justice Atomic Safet:, and Licensing Washincton, D.
C.
20530 Board Fanel em U.S.
Nuclear Regulatory Commission D kl!Oli u
Washington, D.
C.
20555 c' ! U,; ' 1.' ! 4 gar go+qq,h.
3:
...a il
,'~us p
'_,., % A
Reuben Goldberg, Esq.
Russell J. Spetrino, Esq.
David C.
Hj elmfelt, Esq.
Thomas A. Kayuha, Esq.
Michael D. Oldak, Esq.
Ohio Edison Company Goldberg, Fieldman & Hjelmfelt 47 North Main Street 1700 Pennsylvania Ave., N.W.
Akron, Ohio 44308 Washington, D.
C.
20006 Terence H. Benbow, Esq.
Wallace E.
Brand, Esq..
A. Edward Grashof, Esq.
Pearce & Brand Steven A. Berger, Esq.
Suite 1200 Winthrop, Stimson, Putnam & Roberts 1000 Connecticut Ave., N.W.
40 Wall Street Washington, D. C. 20036 New York, New York 10005 Frank R. Clokey, Esq.
Thomas J. Munsch, Esq.
Special Assistant General Attorney Attorney General Duquesne Light Company Room 219 435 Sixth Avenue Towne House Apartments Pittsburgh, PA 15219 Harrisburg, PA 17105 David Olds, Esq.
Mr. Raymond Kudukis William S.
Lerach,.Esq.
Director of Public Utilities Reed Smith Shaw & McClay City of Cleveland Union Trust Building 1201 Lakeside Avenue Box 2009 Cleveland, Ohio 44114 Pittsburgh, PA 15230 James'.B. Davis, Director Lee A. Rau, E'sq.
Robert D.
Hart, Esq.
Joseph A. Rieser, Jr., Esq.
Department of Law Reed Smith Shaw & McClay 1201 Lakeside Avenue Madison Building - Em. 404 Cleveland, Ohio 44114 1155 15th Street, N.W.
Washington, D. C.
20005 Donald H. Hauser, Esq.
Victor A.
Greenslade, Jr., Esq.
Edward A. Matto, Esq.
The Cleveland Electric Richard M. Firestone, Esq.
Illuminating Company Karen H. Adkins, Esq.
55 Public Square Antitrust Section Cleveland, Ohio 44101 30 E. Broad Street, 15th Floor Columbus, Ohio 43215 John Lansdale, Esq.
Cox, Langford & Brown Christopher R. Schraff, Esq.
21 Dupont Circle, N.W.
Assistant Attorney General Washington, D. C. 20036 Environmental Law Section 361 E.
Broad Street, 8th Ploor Leslie Henry, Esq.
Columbus, Ohio 43215 Michael M.
Briley, Esq.
Roger P. Klee, Esq.
James R. Ecserly, Esq.
Fuller, Henry, Hodge & Snyder Secretary and General Counsel P. O. Box 208d Pennsylvania Power Comoany Toledo, Ohio 43603 One East Washington Str'eet New Castle, PA 16103
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