ML19329D016

Summary of 760806 Telcon Between Doj,Aslb,Utils,Nrc & City of Cleveland Re Utils 760802 Ltr Moving Exhibits App 248 & 284-89 Into Evidence.Certificate of Svc Encl

ML19329D016
Person / Time
Site:	Davis Besse, Perry
Issue date:	08/09/1976
From:	Berger M JUSTICE, DEPT. OF
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19329D015	List: ML19329D013 ML19329D016
References
NUDOCS 8002240029
Download: ML19329D016 (8)

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UNITED STATES OF AMERICA W" '(d NUCLEAR itEGULATORY COMMISSION P O 67U J.y Y s.  ;

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,i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD E s *** .g/

'6

_ (.S In the Matter of )

g lh The Toledo Edison Company and )

The Cleveland Electric Illun.inating .) Docket Nos. M' Company ) STT:T00A (Davis-Besse Nuclear Power Station, ) 50-501A Units 1, 2 and 3) -)

)

The Cleveland Electric Illuminating ) Docket Nos. 50-440A Cot;any, et al. ) 50-441A (Firry Nuclear Power Plant, )

Jnits 1 and 2) )

)

MINUTES OF CONFERENCE CALL ON AUGUST 6, 1976 On August 6, 1976 at 11:00 a.m., Mr. Charno of the' Department of Justice initiated a confernce call with Chairman Rigler, Board Member Frysiak and counsel for all parties, including Messers. Le,ssey, Hjelmfelt and Reynolds, to discuss Mr. Reynold's letter of August 2, 1976, wherein Applicants moved Exhibit App. 248 into evidence ,

as well the newly identified Exhibits App. 284-89.

Chairman Rigler noted receipt of Mr. Reynold's letter and Mr. Charno's August 3,1976 response, wherein the Department objected to the admission of App. 248 and 284-89 and proposed a stipulation. After Mr. Reynolds stated that he had not received the Department's August 3 letter and stipulation, Mr. Charno read the stipulation.

8002240 0 2 9

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6 Mr. Reynold's tcOk issue with paragraph 1 of the stipulation concerning which parties had requested a Business Review Clearance for the Buckeye Agreements. Mr. Reynolds also suggested that

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paragraph 2 be amended to indicate that the Department made no requests for information concerning the matters set forth therein. Mr. Charno noted that the portion of the Code of Fed? al Regulations dealing with the Business Review Procednre requires full and fair disclosure of all relevant material and facts, whic-would include the matters referred to in paragraph 2 and, further, that the Department's request did specifically called for such information and/or representations.

Chairman Rigler and Mr. Frysiak questioned the need for a stipulation with respect to who made the request, since they felt this would be demonstrated by Applicants ' new exhibits.

Mr. Charno agreed and conceded that paragraph 1 of the stipulation was unnecessary if Applicants' new exhibits were admitted.

A discussion of paragraph 2 of the stipulation followed.

Chairman Rigler questioned the need for paragraph 2 of the stipulation since he was of the opinion that App. 284-89 contained the af firm-ative representations which were made to the Department. Mr.

Charno responded that the important point was which representations were not made, rather than which were made. If the Department were required to prove the absence of represntation, without the stipulation, the introduction of hundreds of additional documents might be required. Mr. Charno suggested that if representations, 2

such as those containec i- pyragraph 2 had been made, a different business review letter would' have resulted. Mr.

Reynolds suggested that there is no way of knowing what the Department's response would be if the representations in question had been made. Chairman Rigler agreed.

Mr. Charno reiterated that the Department felt that there was a significant difference between arguing that there was no evidence that certain representations were made and having Droof of record that such representations were not in fact ende.

In response to a question by Chairman Rigler as to whether or not a complete search for materials directly connected with the request for App. 248 had been made, Mr. Reynolds represented that Ohio Power Company and its law firm had search ~ed their files and were unable to provide any material other than the correspondence which Mr. Reynolds had previously supp3 ied the Department. Mr.

Reynolds also represented that no other material could be found in the files of Toledo Edison or Ohio Edison.

At about 11:15 technical dif ficulties disrupted the conference call and it was not reconvened until 11:45. Chairman Rigler noted that during the interruption he had been in ,

l contact with Mr. Frysiak and that they were ready to make a decision. Mr. Reynolds reiterated that he would not accept  !

the stipulation.

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Chairman Rigler ruled that App. 248 and 284-89 would be received in evidence, but leave would be granted to the Department to designate additional materials from the Buckeye documents which it might wish to identify and move into evidence.

Mr. Charno reoffered Exhibit DJ 200, attachments 11-14 and 16, which had previously been rejected. In response to Chairman Rigler's inquiry regarding the reason for exclusion of these documents, Mr. Charno stated that he did not recall any reason reing given by the Board for rejection, but that the documents did predate September 1, 1965. Chairman Rigler asked how these d>cuments would effect the business review request. Mr. Charno responded that these documents were not made available to the Department and that' they fell within one of the Department's requests for documents (paragraph 6 in App. 286) and that they should have been produced pursuant to the requirement for full and f air disclosure.

Mr. Reynolds objected to the receipt into evidence of DJ 200, attachments 11-14 and 16, on the ground that the Board had already ruled on them and that they represented isolated instances of communications by Ohio Power Company. Chairman Rigler indicated that the Board will examine DJ 200 before ruling.

Mr. Charno requested additional red-lining of the Applicants '

naw exhibits:

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App. 264 - first full paragraph under II (p. 6) pages 12, 15, 16, 18, 19 - remainder of each page App. 287 " Item 4' (three pages)

Mr. Reynold's asked for additional tim 9 to object to DJ 200,

. attachments 11-14 and 16. He agreed that the would telephone tne Board and the Department during the af ternoon of August 6 to inform them as to any addtional objection.

Chairman Rigler stated that, absent further objections, the 97ard would rule on DJ 200 and advise all parties by letter The .

Loard will also advise the reporter by letter of the admission of App. 248 and 284-289, as well as the additional red-lining.

All parties agreed' that there were no other outstanding

, matters.

The conference call was terminated at 11:55 a.m.

Respectfully submitted W -$u.i I ^5 a gz,p. ' '~

MELVIN G. BERGER Attorney, Antitrust Division Department of Justice Washington, D.C. 20530 August 9, 1976 9

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

, BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) .

The Toledo Edison Company and )

The Cleveland Electric Illuminating ) Docket Nos. 50-346A Company ) 50-500A (Davis-Besse Nuclear Power Station, ) EO-501A Units 1, 2 and 3) )

)

Che Cleveland Electric Illuminating ) Docket Nos. 50-440A Company, et al. ) 50-441A (Perry Nuclear Power Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE l

I hereby certify that copies of MINUTES OF CONFERENCE CALL  ;

ON AUGUST 6, 1976 have been served upon all of tIhe parties listed on the attachment hereto by deposit in the United States mail, first class or airmail this 9th day of August 1976.

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N/YL Y k MELVIN G. BERGER Mcffy , bl

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Attorney, Antitrust Division

Department of Justice l

- 72.TTACHMENT '

i Gerald Charnoff, Esq.

Douglas V. Rigler, Esq. Wm. Bradford Reynolds, Esq.

Chairman, Atomic Safety and Robert E. Zahler, Esq.

Licensing Board Jay H. Bernstein, Esq.

Foley, Lardner, Hollabaugh Shaw, Pittman, Potts &

and Jacobs Trowbridge 815 Connecticut Avenue, N.W. 1800 M Street, N.W.

Washington, D.C. 20006 Washington, D.C. 20036 I

Ivan W. Smith, Esq.

Frank R. Clokey, Esq.

Atomic Safety and Licensing Special Assistant, Attorney Board General Nuclear _ Regulatory Commission Washington, D.C. 20555 Room 219 Towne House Apartments Harrisburg, Pennsylvania 17105 John M. Frysiak, Esquire A.tomic Safety and Licensing Donald H. Hauser, Esq. i Board Victor A. Greenslade, Jr., Esq.

Nuclear Regulatory Commission 7asnington, D.C. 20555 The Cleveland Electric /

Illuminating Company 55 Public Square Atomic Safety and Licensing Cleveland, Ohio 44101 Board Panel Nuclear Regulatory Commission Leslie Henry, Esq.

Washington, D.C. 20555 Michael M. Briley, Esq.

Docketing and Service Section Roger P. Klee, Esq.

Paul M. Smart, Esq.

Office of the Secretary Fuller, Henry, Hodge & Snyder Nuclear Regulatory Commission Washington, D.C. 20555 Post Office Box 2088 '

Toledo, Ohio 43604 Reuben Goldberg, Esq. ,

David C. Hjelmfelt, Esq. Russell J. Spetrino, Esq.

Thomas A. Kayuha, Esq.

Goldberg, Fieldman & Ohio Edison Company Hjelmfelt 1700 Pennsylvania Avenue, N.W. 47 North Main Street '

Akron, Ohio 44308 Suite 550 Washington, D.C. 20006 Steven B. Peri Esm.

Terence H. Benb,ow Tsq.

James B. Davis, Director of A. Edward Grashof, Esq.

Steven A. Berger, Esq.

Law Winthrop, Stimson, Putnam Robert D. Hart, 1st Assistant  ;

Director of Law & Roberts '

City of Cleveland 40 Wall Street New York, New York 10005

.213 City Hall  ;

Cleveland, Ohio 44114

• Thomas J. Munsch, Esq.

General Attorney

Duquesne Light Company 435 "ixth Avenue 15219 Pittsburgh, Pennsylvania l

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' ha~vid Olds, Esq. Joseph Rutberg, Esquire William S. Lerach, Esq. Office of the Executive Reed, Smith, Shaw & McClay Legal Director Union Trust Building Nuclear Regulatory Commission Box 2009 Washington, D.C. 20555 Pittsburgh, Pennsylvania 15230 William J. Kerner, Esquire Lee A. Rau, Esq. Office of the General Attorney Joseph A. Rieser, Jr., Esq. The Cleveland Electric Reed, Smith, Shaw & McClay Illuminating Company Suite 900 Post Office Box 5000 1150 Connecticut Avenue Cleveland, Ohio 44101 -

Washington, D.C. 20036 Alan P. Buchmann, Esquire Edward A. Matto, Esq. Squire, SanCers & Dempsey Richard M. Firestone, Esq. 1800 Union Commerce Building Karen H. Adkins, Esq. Cleveland, Ohio 44115

..ntitrust Section 30 E. Broad Street 15th Floor Columbus, Ohio 43215 Christopher R. Schraff, Esq.

Assistant Attorney General -

Environmental Law Section 361 E. Broad Street 8th Floor Columbus, Ohio 43215 James R. Edgerly, Esq.

Secretary and General Counsel Pennsylvania Power Company One East Washington Street -

New Castle, Pennsylvania 16103 John Lansdale, Esq.

Cox, Langford & Brown 21 Dupont Circle, N.W.

Washington, D.C. 20036 Michael R. Gallagher, Esq.

Gallagher, Sharp, Fulton, Norman & Mollison 630 Bulkley Building 4

Cleveland, Ohio 44115 Jack R. Goldberg, Esq.

B'enjamin H. Vogler, Esq.

Roy P. Lessy, Jr.,.Esq.

( Office of the General Counsel Nuclear Regulatory Commission Washington, D.C. 20555 t

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Joan Lansdale, Esq. - Jerome Saltzman, Chief Coz. Langford & Brown Antitrust and Indemnity Groua 21 Duo:e.t Circle.. .N.W. U.S. Nuclear Regulatory Comission ,

Washingtn, D.C. 20035 ,

Washington, D.C. 20555

• Alan P. Suchmann, Esq. A;an S. Rosenthal, Chairmn .

Squire, Sanders & Dempsey Atomic Safety ans Licens :ng 1300 Union Comerce Building Appeal Board Cleveland, Onio 44115- U.S. Nuclear Reculatory Comission

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. __ _ .. .. Washingten, D.C. 20555 + '

Robert M. Lazo, Esq.

. Chairnen (Spe:ial) Atomic Safety and .

. Licensing 3 card A '/ ~

U.S. (fuclear Regulatory Comission Washia.gton , D.C. 20555 1

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Andrew C. Gecdhope, Esq.

packR.GoldbergCounsel for NRC Staff. j '

(Special) Atomic Safety and Licensing Board -

3320~ EsteIIe Terrace Wheaton, Maryland 209C6 Daniel M. Head, Esq.

(Special) Atomic Safety and Licensing Ecard U.S. Nucleer Regulatory Comission Washingten, D.C. 20555

• Michael R. Gallagner, Esq.

630 Bulkle. Building Cleveland, Ohio 44115 James E. Da /is, Esq.

Special Cuasel '

Hann. Ices er, Freedheim,

nn 11:e laan Ndtional C.:y - E. 6th Building . .

Cle /-hn> 'hio 44114 Ric.v d 3. ialzman At ;ai: Saf :y and Licensing-Appeal to ed U.S. Nuclear Regulatorf Comissicn ,

Was4 -+" D.C. 20555 * '

Jerome E. Sharfman .

Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comission Washington, D.C. 20555

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