ML19329C997

Responds to DOJ 760713 Objection to Applicants' Exhibits & Requests That Motion Be Granted

ML19329C997
Person / Time
Site:	Davis Besse, Perry
Issue date:	07/15/1976
From:	Reynolds W SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Frysiak J, Rigler D, Smith I Atomic Safety and Licensing Board Panel
References
NUDOCS 8002240012
Download: ML19329C997 (3)

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'"**""*"'" . ., .. . .,, c . o. e. July 15, 1976 Douglas V. Rigler, Esquire Ivan W. Smith, Esquire Chairman, Atomic Safety and Atomic Safety and Licensing Licensing Board Board Foley, Lardner, Hollabaugh U. S. Nuclear Regulatory and Jacobs Commission Chanin Building - Suite 206 Washington, D. C. 20555 815 Connecticut Avenue, N.W.

Washington, D. C. 20006 .[. d Uq John M. Frysiak, Esquire eg* g Atomic Safety and Licensing Board ,9 ,

'y U. S. Nuclear.Regulatorv Commission _i Washington, D. C. 20555' g' .)Ok 1g $' ,vn ,t 6 s h *

{8 op.s.N;f[J}f Re: The Toledo Edison Company and y The Cleveland Electric Illuminating Company

__ . ... .(Davis-Besse Nuclo " Mwer Station, Unit 1) gry%g,.c Q' 0'.'

NRC Docket No 0-3 The Cleveland ric 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 1 Gentlemen:

By letter of July 13, 197d, the Department of Justice hts objected to the introduction into evidence of Applicants Ex-  !

hibits 278-283 (CEI). Since the exhibits in question were made  ;

cvailable at the specific request of the Licensing Board, and j carve to complete the record in this proceeding by including therein the materials explicitly referenced in the testimony given by

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D;uglas V. Rigler, Esquire Ivan W. Smith, Esquire John M. Frysiak, Esquaire July 15, 1976 ,

P ge Two Maasrs. Gaul and Hauser on July 1, 1976, Applicants would question tha appropriateness of the Department's position with regard to this matter. In any even,t, the objections are not well taken.

In the first place, the Department complains that the exhibits relate to an " eleventh hour charge." We would simply observe at the outset that of all the parties in this proceeding, the Department is the last one which should be heard to register cuch a complaint. It is, after all, the Department who waited until June 23, 1976, virtually at the close of the hearing, to cdvise Applicants of its reformulated allegations. By contrast, the assertion that "the City of Cleveland has not acted in good faith" with regard to its requests for membership in CAPCO and '

participation in the designated nuclear plants has been a part of CEI's defense from the beginning. It was specifically referenced in CEI's Prehearing Fact Brief, at p. 8, and was an underlying thosis running throughout the cross-examination of Mr. Robert A.

Hart.

. The Department, therefore, had ample notice of this par-ticular aspect of CEI's case. Nor is it in any position to claim

" surprise" as to the contents of Applicants Exhibits 278-283 (CEI). ,

By its own admission, the Department had much earlier received, cnd was familiar with (see DOJ Exhibit 633), the affidavit of '

Len C. Howley.d.ated. March. 27,_1974,. which.w.as. filed with the Li .

ennsing Board over two years ago. As the testimony of Mr. Hauser makes clear, the statements in that prior affidavit are substan-tively no different from the accounts of the March 1974 meetings contained in the exhibits now under discussion (Tr. 12,468-12,469).

There is thus no information being disclosed at this time which the D'epartment can honestly represent to this Board it had not been opprised of long before.

As for the Department's accusation that the tape recording, cnd transcriptions thereof, were improperly withheld from the De-partment on discovery, this charge is unfounded. Passing for the moment the Department's misguided assumption that the materials in question were in the possession,vcustody or control of CEI at tha time of the Company's document production, it is clear that th3 recorded conversation between Mr. Gaul and Mr. Kudukis at the Committee meeting of City Council does not come within either of tha document requests referenced in the Department's July 13 letter, Cr, for that matter, any of the other Joint Document Requests.

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Douglas V. Rigler, Esquire Ivan W. Smith, Esquire .

John M. Frysiak, Esquire July 15,.1976 Pige Thrse- .

In th'is regard, it is manifest that the material in question is not concerned in any way with the Company's consid-oration of, or response-to, a request, inquiry "or" espression of interest in coordinati'on or integration from any other electric utility -- which, by use of the conjunctive term "and", is plainly fundamental to the broadly framed document request set forth in numbered paracraph 20. Nor does it have any relationship to the mitter referred to in Document Request No. 21, which seeks only materials bearing on the subject of an " exclusion" from or "un-auccessful efforts" to participate in a pooling arrangement such as CAPCO. The Department may now wish that it had framed more carefully its document requests to embrace the Gaul recording, but its inartful draftsmanship should not now be used by the De-partment as a basis for faulting CEI's legitimate understanding of what was called for under the imprecise language employed.

In light of the foregoing, the Department's objections to Applicants Exhibits 278-283 (CEI) are singularly unpersuasive.

The July 1, 1976' testimony of Messrs. Gaul and Hauser is a matter of record. That testimony is wholly consi' stent with'the infor-mation regarding the same subject matter that the Department has had in its possession since the filing of the Howley affidavit of March 27, 1974. The additional exhibits being offered by Ap-plicants simply corroborate that testimony and complete the record in-connection therewith; -They have been-furnished at the-Board

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request.,

I'n such circumstances, the Department's cry _of " severe prejudice" has a particularly hollow ring. We would remind the D partment that it had ample opportunity to cross-examine Mr. Gaul cnd Mr. Hauser,.on July 1, 1976, but it elected not to. In ad-dition, the' Board granted the Department leave to call Mayor Perk in rebuttal to Mr. Gaul's testimony, and the Department chose not to pursue that course. It is therefore unclear how the receipt

~into evidence of Applicants Exhibits 278-283 (CEI) can cause any prejudice to the Department, let alone severe prejudice.

Applicants, therefore, ask that their motion with respect ,

to the aforesaid exhibits be granted. l Respectfully submitted,

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