ML19329C970

Discusses SM Charno 751010 Ltr Re Util Failure to Comply W/Two Document Requests by Doj.Request for Documents Addressed Separately in Encl Reply & Supporting Affidavits

ML19329C970
Person / Time
Site:	Davis Besse, Perry
Issue date:	10/21/1975
From:	Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	Charno S JUSTICE, DEPT. OF
Shared Package
ML19329C973	List: ML19329C970 ML19329C974 ML19329C975 ML19329C976 ML19329C979 ML19329C980 ML19329C981
References
NUDOCS 8002200945
Download: ML19329C970 (12)

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OCCt f7ED h

Steven M. Charno, Esquire Antitrust Division U. S. Department of Justice p OC T211975 > 9 Washington, D. C. 20530 '

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,,3 q Re: The Toledo Edison Company The Cleveland Electric Illuminating Company #

Davis-Besse Nuclear Power Station, Unit 1

• NRC Docket No. 50-346A; The Cleveland Electric Illuminating Company, et al.

Perry Nuclear Power Plant, Units 1 and 2 NRC Docket Nos. 50-440A and 50-441A; The Toledo Edison Company, et al.

Davis-Besse Power Station, Units 2 and 3 NRC Docket Nos. 50-500A and 50-501A

Dear fir. Charno:

Your letter to me of October 10, 1975, comes as a complete surprise, not only because it contains the unwarranted suggestion that Applicants failed to comply with the two document requests served upon them by the Department of Justice -- notwithstanding their production of some 2 million documents -- but also because it was written without first extending even the minimal courtesy of a preliminary telephone call to discuss the matter.

I regard your insinuation that. Applicants intentionally withheld material from production to be outrageous. You have re-quested a total of 21 " additional" documents. In light of the imprecise language used in the Perry and Davis-3 esse 2 & 3 document requests, which Applicants consistently construed expansively in order to guard against the kind of accusation you have made, even if all of these documents had not been produced a charge of bad faith would be irresponsible. It is even more inexcusable in light of the fact that only 2 of the 21 documents listed were inadvertently missed in the original document searches.

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. b@w.jlTTMAN, PCTTS 6 TROCUDGE l

Steven M. Charno, Esquire

, October 21, 1975 j Page Two i

.Nor is there any legitimate reason for writing this sort of letter just prior to commencement of the hearing, unless, as I suspect, you were hoping by this tactic to secure indirectly another delay in the hearing schedule. It is clear to me by the  ;

j specific nature of the request that virtually all of the documents d

you have asked for are already in your possession. To the extent

. that this is the case and Applicants do not.have a copy of any

such document (as indicated on the attachment hereto), I formally

, request that you produce copies to us immediately.

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) In direct response to your listing, I am attaching a i reply which addresses each document separately, and includes a

supporting affidavit from each of the Applicants. You will note that several of the documents are not in Applicants' possession or control. This was not disclosed earlier for the very obvious reason that Applicants, not being aware of the specific material at the time of the earlier production, had no information to trigger

. the sort of' response required by Section B of the two document

! requests.

I am appalled that you chose to premise your October 14, 1975 request for leave to amend the Department's allegations on the demand letter to me for 21 documents. Only one document in that list bears even remotely on the new proposed allegation. And, as I suspect you knew when you wrote the letter, that document -- i.e.,

the Prentice letter of February 28,.1967 -- simply requested comments on a specific piece of legislation that was being considered for .

presentation to the Ohio State Legislature at the time. It lends no support whatsoever to your proposed allegation concerning some purported territorial allocation agreement between Ohio Edison Company and Ohio Power Company.

I am equally appalled at the suggestion in your letter --

made for the first time -- that you intend to try to use documents in this proceeding which the Department obtained from The Cleveland Electric Illuminating Company in response to Civil Investigative Demand No. 1629. That document production was in response to a l request having nothing to do with this proceeding; it went far beyond

.the discovery limitations imposed here by the Licensing Board, both

, as to the time period and subject matter involved. You know full  !

well that the statute under which your CID issued strictly confines the use of the material produced. As I read that statute and under-stand the arrangement you had with CEI regarding the CID production, any.use of this material in the above. antitrust hearing is pro-  !

hibited. I intend to resist every effort on your part to undermine this prohibition.

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• dMAW, PITTM AN, PCTTO & TCoVlDGE Steven M. Charno, Esquire October 21, 1975 Page Three In this regard, let me also make it clear in closing that, contrary to your October 10 letter, 1 have as yet entered into no stipulation.concerning the authenticity of any documents that may be introduced at the hearing. If you will refer to the September 18, 1975 transcript of the Sixth Prehearing Conference (p. 1218),

you will see that, while I do not now anticipate a problem regard- ,

ing the authentication of the bulk of the documents produced by Applicants in this proceeding, I am not prepared to enter into any stipulation in this regard until I know specifically which documents we are talking about.

Sincerely yours,

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i Q. G.LQ L \ C - " - -

Wm. Bradford Reynolds WBR:ats Enclosures cc: Atomic Safety and Licensing Board All Parties 4

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DOCUMENTS REQUESTED BY DEPARTMENT OF JUSTICE IN OCTOBER 10, 1975 LETTER -

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% arJu., . .5 e THE CLEVELAND ELECTRIC ILLUMINATING COMPANY w es ao Request No. 1:

Letter from Richard A. Miller to the Federal Power Commission, attention of Gordon M. Grant, Secretary, dated January 23, 1968, with enclosure.

(D. 6 - Perry)

CEI Response:

The Miller letter of January 23, 1968 and the en-closures thereto, were produced in response to the Perry document request. The Department did not designate that this material be transmitted to the Central Depository in Washington, D. C., and it was not.

Request No. 2:

The cost studies and engineering studies which were made to back up CEI's claim that CEI could sell power to MELP at a rate that would make the proposed $12,000,000 expansion both uneconomical and unnecessary. See entry of June 27, 1963 on document entitled "CEI Efforts Toward Elimination or Curtailment of MELP 1957 - Present." (D-B)

CEI Response:

The cost studies and engineering studies described above are no longer in the possession or control of CEI. This material was not required to be produced under the Departmenc's document requests since it falls outside the permissible discovery i period of September 1, 1965 to the present. More- l over, CEI was under no obligation to advise the i Department earlier (under Part B of the document request) that this material was no longer available, since such advir.e was requested by the Department i only as to post-1970 documents. l l

THE TOLEDO EDISON COMPANY Request No. 1:

' Letter from A. N. Prentice, OP, to Davis, Henry and others, dated February 28, 1967.

(D. 14; E. 1 - Perry; E. 3 - D-B)

TE Response:

The Prentice letter of February 28, 1967 cannot be located in the files of TE and, to TE's knowledge and belief, it is not now in the company's possession or control.

Request No. 2:

Letter from Charles E. Flahie to Lawrence McNealey, C&SOE, dated December 27, 1968.

(E. 1 - Perry; E. 3 - D-B)

TE Response:

The Flahie letter of December 27, 1968 cannot be located in the files of TE, and to TE's knowledge and belief, it is not now in the company's possession or control.

Request No. 3:

1 Letter from T. A. Kostanski to Morris R. l Fitzgerald, Chief of North Central Region, I Division of Audit, Federal Power Commission, l dated December 30, 1971, with enclosures. l (D. 6 - Perry)

TE Response:

The Kostanski letter of December 30, 1971, with enclosures has been located after an extensive search of TE's files. A copy is attached. This material was not produced earlier only because it was inadvertently overlooked in the original search of TE's files. ,

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Request No. 4:

Speech given by Mr. W. H. Schwalbert at the Edison Electric Institute meeting held in January 1968. (E.1 - Perry)

TE Response:

The Schwalbert Speech cannot be located in the files of TE and, to TE's knowledge and belief, it is not in the company's possession or control.

Request No. 5:

Letter from Dewey G. Ries to John K. Davis, dated November 20, 1965. (E.1 - Perry)

TE Response:

The Ries letter of November 20, 1965 cannot be located in the files of TE and, to TE's knowledge and belief, it is not in the company's possession or control.

Request No. 6:

Letter from John K. Davis to Dewey G. Ries, dated November 23, 1965. (E.1 - Perry)

TE Response:

The Davis letter of November 23, 1965 Jannot be located in the files of TE and to ?E's knowledge and belief, it is not in eta company's possession or control.

Request No. 7:

Minutes taken by Stratman Cooke of meeting held on June 24, 1971 between Messrs. Cooke and Keck of Toledo Edison, Mr. Robert Badner of the Rural Electrification Administration, Mr. Joseph Wigham of Southern Engineering Company and representatives of the Southeastern Michigan Rural Electric Cooper-ative. (E.1 - Perry) 4 l

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, y s s TE Response:

The Minutes taken by Stratman Cooke of meeting held on June 24, 1971 were not produced in response to the Perry document request because this material was not called for under any reasonable interpretation thereof.

OHIO EDISON COMPANY Request No. 1:

Letter frcm R. J. Dreisbach, General Coordi-nator of Division Distribution Practices, to F. G. Streit, C&SOE, dated February 2, 1966.

(D.14; E.1 - Perry; E.3 - D-B)

OE Response:

The Dreisbach letter of February 2, 1966 was not produced in response to the Department's document requests because it was not called for under any reasonable interpretation thereof.

Request No. 2: .

Letter from A. N. Prentice, OP, to Mansfield, White, and others, dated February 28, 1967.

(D.14; E.1 - Perry; E.3 - D-B)

OE Response:

The Prentice letter of February 28, 1967 was not produced in response to the Department's docu-ment requests because it was not called for under any reasonable interpretation thereof. More-over, this document, even if its production had been called for, would have been entitled to protection from disclosure under the Noerr-Pennincton doctrine, with particular reference to that doctrine's application by the Sixth Circuit Court of Appeals.in Lam'n Enterprises, Inc. v Toledo Blade Co., 461 F.2d 506 (6th Cir.), certiorari denied, 409 U.S. 1001 (1972).

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, . A copy of the Prentice letter, together with enclosures thereto, is attached, however, simply to expose fully what a slender reed the Department chooses to rely upon to support its request to amend its statement of allega-tions. This is the only document that bears, even remotely, on the matter of an alleged territorial allocation agreement between Ohio Edison Company and Ohio Power Company.

Request No. 3:

Letter from J. L. McNealey, C&SOE, to Messrs.

Zimmer, Oxley, Flahie, McVay, dated December 31, 1968. (E.1 - Perry; E.3 - D-B)

OE Response:

The McNealey letter of December 31, 1968 cannot be located in the files of OE and, to OE's knowledge and belief, it is not now in the company's possession or control.

Reg'uest No. 4:

Letter from J. L. McNealey, C&SOE, to Messrs.

Zimmer, de Bruyn Kops, Flahie, Dunham, Mansfield,

dated December 27, 1968, with attachments.

(E.1 - Perry; E.3 - D-B)

OE Response:

The McNealey letter of December 27, 1968 cannot be located in the files of OE and, to OE's knowledge and belief, it is not now in the company's possession or control.

Request No. 5:

Letter from Howard A. Cummins, Buckeye Power, Inc.,

to Roger Waite of Norwalk, Ohio, dated March 15, 1971 with handwritten marginal notes in upper right corner. (Send the original or ten copies made from the original.) (E.1 - Perry; E.3 - D-B; E.5 - D-B)

OE Response:

The Cummins letter of March 15, 1971, with handwritten marginal notes in upper right corner, was produced in response to the Department's document requests, was trans-mitted to the Central Depository in Washington, D. C., pursuant to the Department's request, and, according to our records, was actually copies by the Department.

PENNSYLVANIA POWER COMPANY Request No. 1:

Letter from Charles S. Bowden to Borough of Ellwood City, dated July 30, 1966.

(E.1 - Perry; E.2 - D-B; E.3 - D-B)

PP Response:

The Bowden letter of July 30, 1966 was produced in response to the Department's document re-quests. The Department did not designate that it be transmitted to the Central Depository in Washington, D. C., and it was not. ,

Request No. 2:

Registered letter from James R. Edgerly to Borough of Ellwood City, attention of Mrs. Mildred R. Kettler, Secretary, dated August 10, 1966, with enclosures.

(E.1 - Perry; E.2 - D-B)

PP Response:

The Edgerly registered letter of August 10, 1966, with enclosures, was produced in response to the Department's document requests. The De-partment did not designate that it be transmitted to the Central Depository in Washington, D. C.,

and it was not.

4 Request No. 3:

Letter from James F. Haas, Encrgy Application Engineer, to Mrs. Kettler, Ellwood City, dated March 12, 1975, with enclosures.

(E.2 - D-B; E.3 - D-B)

PP Response:

The enclosures to the Haas letter of March 12, 1975 were produced in response to the Depart-ment's document requests and were transmitted to the Central Depository in Washington, D. C.

It cannot be ascertained from our records whether or not this material was actually copied by the Department.

The Haas cover letter was inadvertently over-looked in PP's earlier document search and a copy thereof is attached.

Request No. 4:

All wholesale municipal contracts in effect as of September 1, 1965. (E.2 - D-B)

PP Response:

All but four of the PP wholesale municipal con-tracts were produced in response to the Depart-ment's earlier document requests, were trans-mitted to the Central Depository in Washington, D. C., and, according to our records, were actually copied by the Department. The four such contracts not produced antedate the September 1, 1965 cut-off date and were therefore not called for. PP has no reluctance making these four contracts available to the Department, however, and copies are attached.

Request No. 5:

Document entitled " Pennsylvania Power Company -

Determination of Revenue Requirements for Municipal Resale Classification, Year Ended July 31, 1965",

dated November 18, 1965. (D.6 - Perry)

PP Response:

The document dated November 18, 1965 was not caZed for under any reasonable interpretation of paragrph D. 6 of the Perry document requests, and therefore it was not produced. PP has no reluctance making this document available to the Department, however, and a copy is attached.

DUQUESNE LIGHT COMPANY Request No. 1:

Attachments to letter from W. F. Gulfillan, Jr.

to David McNeil Olds, dated July 23, 1969.

(E.1 - Perry)

DL Response:

Attachments to letter from Gilfillan, Jr. dated July 23, 1969 cannot be located in the files of DL and, to DL's knowledge and beliefe this material is not in the company's possession or control. DL was under no obligation to advise the Department earlier, under Part B of the document requests, that this material could not be located, since such advice was requested by the Department only as to post-1970 documents.

The Gilfillan cover letter was produced in response to the Perry document requests, was transmitted to the Central Depository in Wash-ington, D. C., and, according to our records was

actually copied by the Department.

Request No. 2:

Questionnaires, as complete'd by Ohio Edison, Pennsylvania Power, Toledo Edison and Cleveland Electric Illuminating, which were distributed for completion by W. G. Dempler at the CAPCO Planning Committee Meeting #24, dated July 27, 1972.

(E.1 - Perry)

DL Response:

No completed questionnaires were ever re-ceived by DL. The questionnaires themselves were produced in response to the Perry document requests, were transmitted to the Central Depository in Washington, D. C., and, according to our records, were actually copied by the Department.

Request No. 3:

Speech given by John W. O' Nan at the Edison Electric Institute meeting held in January 1968.

(E.1 - Perry)

DL Response:

The O' Nan Speech was produced in response to the Perry document requests; it was trans-mitted to the Central Depository in Washington, D. C. pursuant to the Department's request, and, according to our records, it was actually copied by the Department.

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