ML19329C922
| ML19329C922 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 11/03/1975 |
| From: | Reynolds B SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Frysiak J, Rigler D, Smith I Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002200900 | |
| Download: ML19329C922 (2) | |
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Rigler, Esquire Ivan W. Smith, Esquire Chairman, Atomic Safety, and A'tomic Safety and Licensing Board Licensing Board U.S. Nuclear Regulatory Commission Foley, Lardner, Hollabaugh Washington,-L.C.
20555 and Jacobs Chanin Building - Suite 206 John M.
Frysiak, Esquire 815 Connecticut Avenue, N.W.
Atomic Safety and Licensing Board Washington, D.C.
20006 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Re:
In the matter'of The Toledo Edison Company and The Cleveland Electric Illuminating Ccmpany (Davis-Besse Nuclear Power Station, Unit 1) ;
The Cleveland Electric Illuminating Company, et al.,
(Perry Nuclear Power Plant, Units 1 and 2) ;
The Toledo Edison Comnany, et al.,
(Davis-Sesse Hecle'ar Power Station, Units 2 and 3)
NRC Docket Nos.
5 0-3 4 6 A,' 5 0-4 0 0 A, 50-4416, 50-500A and 50-501A Gentlemen:
On October 31, 1975, the Department of Justice
(" Department")
filed a draft subpoena directed to the Cleveland Electric Illuminating Company ("CEI"), and a memorandum of law supporting the issuance of the subpoena.
The draft subpoena directs CEI to produce the requested material at 9 :00 a.m. cn Noventer 6,1975.
It also informs CEI that they may move to quash or modify the subpoena by appropriate motion prior to "the time specified-herein for compliance," that is, prior to November 6, 1975.
The requirement,to. produce or move to quash prior to N.ovember 6 is directly contrary to the Board Chairman's ruling during the October 28, 1975 conference. call which gave CEI until November 15, 1975, to move to quash or otherwise respond to the subpoena sought by the Department.
("Mi.nutes of Conference call of October 28, 1975," p.2, filed on October 31, 1975).
It is my under-standing that the f ailure of CEI to respond by the November 6 date 9
eco2 2oo 7co m
. (CHAWl PkTTMAN, P3TTO & TECWORIOSC Novqmber 3, 1975 Pa 2
will not waive.any of CEI's rights to resist the subpoena by Novem-ber 15, 1975.
On or before November 15, CEI will file with this Board.its opposition to the Departmeht's attempt to unlawfully use herc material-obtained by means of a Civil Investigative Demand ("CID").
- However, at this time, CEI feels compelled to record its strong and violent objection to the breach of good faith already committed by the De-partment.
The statute under which a CID may issue imposes a strict duty on the Department not to disclose the contents of documents re-ceived pursuant to the CID.
See 15 U.S.C. S1313 (c) (1970).
The statutory scneme makes crystal clear that the Department is to act as a " custodian" cver the documents.
For some unknown reason, the
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Department has seen fit to breach its obligation of confidentiality.
Attached to the draft subpoena and circulated to a[1 parties in this proceeding are Schedules A, B and C which list in detail the documents requested.
Those Schedules include information as to the type of document; author, title, docket number, etc.; date; and number of pages.
Such disclosure, by itself, violates the confidential and custodial obligations of the Department.
Furthermore, the memorandum of law filed by the Department, and again circulated to all parties, compounds the breach by characterizing the contents of the documents.
The Department's violation of its statutory obligations -- which plainly cannot be excused as m-ere inadvertence -- is unconscionable.
The propriety of the subpoena depends in no way on the contents of the documents requested.
The issue is whether material obtained by a CID may be introduced in this proceeding.
For the Department to argue at length over the contents of the documents can only be viewed as a ploy to color the decision of this Board, to obfuscate the true legal issue involved in the dispute and to widely disseminate the contents of the documents even though the Department is under a strict legis-
'lative mandate to keep the material confidential.
This Board should not allow the Department to take its respon-sibilities so lightly, especially when the calculated.effect is to undermine the precise confidential tr'eatment that Congress intended to guarantee.
CEI has already lost much of the protection which the statute affords.
We urge that this Board take whatever steps it deems necessary to insure that there be no further improper disclosure of the CID material 'and that CEI's rights be fully protected from such inexcusable conduct in the future.
Very truly yours,,
1 ( '~ ( 4?. es:..,~.Q G) 4, Wm. Bradford Reynolds
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Counsel for Applicants cc: all parties e
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