ML19329C966
| ML19329C966 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 12/02/1975 |
| From: | Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002200940 | |
| Download: ML19329C966 (9) | |
Text
Dictmbsr 2, 1975 i
a 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
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p-s THE CLEVELAND ELECTRIC ILLUMINATING
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Docket No.740-346Aj COMPANY
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W (Davis-Besse Nuclear Power Station,
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Unit 1)
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THE CLEVELAND ELECTRIC ILLUMINATING
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Docket Nos. 50-440A (Perry Nuclear Power Plant,
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50-441A Units 1 and 2)
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THE TOLEDO EDISON COMPANY, ET AL.
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(Davis-Besse Nuclear Power Station,
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Docket Nos. 50-500A Units 2 and 3)
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50-501A RESPONSE OF THE CLEVELAND ELECTRIC ILLUMINATING COMPANY TO MOTION SY THE DEPARTMENT OF JUSTICE FOR PRODUCTION OF DOCUMENTS 1.
On November 21, 1975, the Department of Justice filed a motion with this Licensing Board to compel production in this proceeding by The Cleveland Electric Illuminating Company ("CEI") of documents already in the Department's pos-session by reason of a separate and independent statutory procedure invoked by the Department on May 1, 1975.
Pursuant thereto, the Department issued Civil Investigative Demand No. 1629 ("CID"), requesting a large amount of documentary material relating to CEI's business operations and relation-ships over the period January 1, 1960 to the date of the CID.
CEI fully responded on June 27, 1975.
8002 200 DO A
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. 2.
Some four months later, well after the close of discovery in this proceeding, the Department on October 31, 1975, sought unsuccessfully to obtain production here of the CID material by-invoking the subpoena powers of 1/
this Board under Section 2.720 of the Commission's Rules.-
Having failed in that effort, the Department now seeks to accomplish the same result by way of the present motion under Section 2.741 of the Commission's Rules.
3.
CEI set forth in its motion to quash the aforesaid subpoena the reasons why it would be wholly inap-propriate for the Board to entertain at this late date the untimely motion now under consideration.2/
That discussion
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is incorporated herein by reference in accordance with the Board's November 18, 1975 Order.
We further add that there is no cause whatsoever, let alone " good cause," to compel production of the documents requested.
The Department, by its own account, already has the requested material in its possession; it has suggested no legitimate reason why this Board should require CEI to surrender the same documents yet another time.
1/
See " Memorandum and Order Of The Board Granting Motion 13f Cleveland Electric Illuminating Company To Quash Subpoena,"
dated November 18, 1975.
2/
See " Motion Of The Cleveland Electric Illuminating Com-pany To Quash Subpoena Issued At The-Request Of The Department Of Justice," paras. 6 and 7.
(November 15, 1975)
. 4.
If, as we suspect, the underlying purpose of the present motion is not the proper one (i.e.,
to obtain the documents in question), but a wholly improper one (i.e.,
to use_the CID material in this proceeding), this Licensing Board should not permit the Department to rely on the excuse to reopen discovery here as a pretext for sidestepping its custodial obligation under the Antitrust Civil Process Act, 15 U.S.C.
S1311(e) (1970), not to make the CID material "available for examination."
The nature of the prohibition against disclosure was also discussed in CEI's motion to quash and is incorporated herein by reference. /
3 5.
This Board has been advised of the suit filed by CEI in the United States District Court for the District of Columbia seeking enforcement of the non-disclosure pro-visions of the Antitrust Civil Process Act.
See CEI v Charno, et al.,
U.S.D.C., Civil Action 75-1914. /
4 If the Board is at all receptive to the present motion by the Department, we submit that any disposition thereof would necessarily have to await the outcome of that judicial proceeding.
As the Department itself acknowledges, production of the CID docu-ments in this forum cannot be compelled in the absence of
" good cause," both as to the lateness of the filing and as 3/
See n.2, supra, at paras'. 9-20.
4/ A copy of the Complaint is attached to CEI's motion to_ quash filed with this Board.
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. to the need for the documents.
And see 10 C.F.R. 2.750 (b) (1).
Clearly, the Department has not made such a showing to date; nor could-it possibly do so in the circumstances.
6.
As to the matter of lateness, the Department has set forth no reason whatsoever in its filings why it waited some four months after it received the CID documents, and three months after the close of discovery, before making its present motion.
Failure even to address that question cannot be conveniently brushed aside.
As stated in Common-wealth Edison Co. (Zion Station, Units 1 and 2), ALAB-196, RAI-74-4, 457, 463 (April 25, 1974), " discovery requests filed outside time period * *
- are to be regarded as prima facie unreasonable."
7.
As to the "need" for the documents, the Depart-ment has set forth in broad conclusory fashion that all the material is "of relevance and probative value in this pro-ceeding."5/
CEI has already objected strongly to the Depart-ment's self-serving characterizations of the contents of these documents as contravening the Antitrust Civil Process Act.
Of more direct relevance to the present motion, CEI disputes those characterizations as being inaccurate repre-sentations irresponsibly advanced in what appears to be a naive attempt-to color the attitude of this Board.
Accord-5/
See " Application Of The Department Of Justice For A Subpoena To The Cleveland Electric Illuminating Company," p.3.
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ingly, in the unlikely event that this Board should see
'any reason to reach the second element of the " good cause" issue relating to the need in this proceeding for use of the documentary material in question, we submit that the matter must be decided on the basis of a~ document-by-document inspection of the CID material by this Board, not on the basis of the Department's misleading asseverations.
8.
Such a procedure would, of course, have to await a ruling in CEI's civil suit.
Unless the district court permits disclosure of the CID material -- and we do not believe it will -- the members of this Board are pre-cluded by statute from examining the documents, either in camera or otherwise.
Moreover, the Department and CEI have entered into a stipulation in the civil action explicitly agreeing as follows:
It is stipulated that pending the' decision of the Court on Petitioner's Motion for Pre-liminary Injunction, Respondents will make no disclosure of such documents to any person whatso-ever outside tne Department of Justice for any purpose whatso-ever and will not make any fur-ther disclosures or distributions beyond that already made of the lists or summaries of said docu-ments;
[ Emphasis added.]
9.
For the foregoing reasons, including those set forth in CEI's motion to quash to_which reference has been
'. made, CEI-submits that the present motion should be denied out of hand as being.an improper use of the Commission's discovery procedures and as failing to advance even a super-ficial justification for lateness.
If the " good cause" ques-tion needs to be explored further, however, an examination by this Board of the requested CID material is required.
That can be accomplished-only if the United States District Court for the District of Columbia rules that disclosure of the CID material is permissible. /
In that unlikely event, 6
j CEI will insist upon an ex parte, in camera hearing on the question of the relevance of the CID material to the present proceeding. /
7 Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE 7
i) O\\ D,._ C (
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By:
Wm. Bradford Reynolds Gerald Charnoff Counsel for Applicants Dated:
December 2, 1975.
i 6/
Argument on CEI's Motion for Preliminary Injunction is set for January 8, 1976.
7/
We believe it would be appropriate for the Department i
to attend and participate in the proceeding.
Neither the Staff i
nor.the City should be allowed to participate, however, since they have shown no interest in this material.
Moreover, the City should not be permitted'to use this forum as a vehicle for discovery in its' civil antitrust suit.
s._.,,
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE TOLEDO EDISON COMPANY and
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THE CLEVELAND ELECTRIC ILLUMINATING
)
Docket No. 50-346A COMPANY
)
(Davis-Besse Nuclear Power Station,
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Unit-1)
)
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
)
Docket Nos. 50-440A (Perry Nuclear Power Plant,
)
50-441A Units 1 and 2)
)
)
THE TOLEDO EDISON COMPANY, ET AL.
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(Davis-Besse Nuclear Power Station,
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Docket Nos'. 50-500A Units 2 and 3)
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50-501A CERTIFICATE OF SERVICE
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I hereby certify that copies of the foregoing
" Response Of The Cleveland Electric Illuminating Company
.To Motion By The Department Of Justice For Production Of Documents" were served upon each of the persons listed on the attached Service List, by hand delivering a copy to those persons in the Washington, D.
C.
area and by mailing a copy, postage prepaid, to all others, all on this 2nd day of December, 1975.
SHAW, PITTMAN, POTTS & TROWBRIDGE e?
By:
\\ DuMS.
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Wm. Bradf6rd Reynolds
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
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THE CLEVELAND ELECTRIC ILLUMINATING
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Docket No. 50-346A COMPANY
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(Davis-Besst Nuclear Power Station,
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Unit 1)-
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THE CLEVELAND ELECTRIC ILLUMINATING
)
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Docket Nos. 50-440A (Perry Nuclear Power Plant,
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50-441A Units 1 and 2)
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THE TOLEDO EDISON COMPANY, ET AL.
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(Davis-Bosse Nuclear Power Station,
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Docket Nos. 50-500A Units 2 and 3)
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50-501A SERVICE LIST
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Douglas V.
Rigler, Esq.
Mr. Chase R.
Stephens Chairman, Atcmic' Safety and Docketing & Service Section Licensing Board U.S. Nuclear Regulatory Cc= mission Foley, Lardner, Hollabaugh 1717 H Street, N.W.
and Jacobs Washington, D.C.
20006 Chanin Building - Suite 206 815 Connecticut Avenue, N.W.
Benjamin 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 Director
-Atomic-Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington, D.C.
20555 U.S. Nuclear Regulatory Commission-Washington, D.C.
20005 Joseph J.
Saunders, Esq.
Steven M. Charno, Esq.
John M.Frysiak, Esq.
Melvin G.
Berger, Esq.
Atomic Safety and' Licensing Anthony G. Aiuvalasit, Esq.
Board Panel Ruth Greenspan Bell, Esq.
U.S. Nuclear Regulatory Commission Janet R.
Urban, Esq.
Washington, D.C.
20555 Antitrust Division Department of Justice Atomic-Safety and Licensing Washington, D.C.
20530 Board Panel U.S. Nuclear-Regulatory. Commission Washington, D.C.
20555 I
w.
p Reuben Goldberg, Esq.
Russell J.
Spetrino, Esq.
David C. Hjelmfelt, 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 Clevel'and Union Trust Building 1201 Lakeside Avenue Box 2009 Cle'veland, Ohio 44114 Pittsburgh, PA 15230 James B.
Davis, Director Lee A.
Rau, Esq.
Robert D. Hart,-Esq.
Joseph A.
Rieser, Jr., Esq.
Department of Law Reed Smith Shaw & McClay 1201 Lakeside Avenue Madison Building - Rm. 404 Cleveland, Ohio 44114 ll55 15th Street, N.N.
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,' 15bh 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 Floor Leslie Henry, Esq.
Columbus, Ohio 43215 Michael M. Briley, Esq.
Roger P.
Klee, Esq.
James R. Edgerly, Esq.
Fuller, Henry, Hodge & Snyder Secretary and General Counsel P. O. Box 2088 Pennsylvania Power Company Toledo, Ohio 43603 One East Washington Street New Castle, PA' 16103 l
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