ML19329D177
| ML19329D177 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 08/12/1977 |
| From: | Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8002250882 | |
| Download: ML19329D177 (7) | |
Text
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August 12, 1977 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Appeal Board
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In the Matter of
)
THE TOLEDO EDISON COMPANY and
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
Docket No. 50-346A COMPANY
)
(Davis-Besse Nuclear Power Station,
)
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.
)
(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-500A Units 2 and 3)
)
50-501A APPLICANTS' REPLY TO THE DEPARTMENT OF JUSTICE'S MOTION TO STRIKE The Department of Justice has moved to strike from Applicants' Reply Brief both Appendix B and the following state-ment appearing as the final sentence in footnote 9 on page 13:
In this regard, we are admittedly dis-appointed to find DOJ stating categorically to this Appeal Board that Mr. Lewis' affi-davit of January 19, 1973 (S-127) "was not prepared for litigation" (D. Br. at 142 n.177), when it knows full well that the Lewis affidavit was in fact prepared at the explicit request of the then lead counsel for DOJ, Mr. Charno, in connection with the Department's antitrust investigation of these very Applicants under Section 105c (see correspondence attached hereto as Appendix B).
In all_ candor, Applicants made this statement and at-tached the supporting documentation only as a last resort.
We 8002 250 M d
- had hoped that the Department would itself have come forward in the circumstances and corrected what it knew to be a serious factual error in the record below.-1/
Instead, the Department chose, not simply to remain silent (as it did below when the misrepresentation was made), but to reinforce and perpetuate the error by highlighting the Licensing Board's misguided finding concerning the intended use of the Lewis affidavit.
Our ex-pression of disappointment is grounded on the realization that such tactics inexcusably compromise the Department's strong tradition for setting above all else the objective of insuring that justice prevail (even if the result requires the Department to confess error in some instances).
Interestingly, there is no dispute -- as there obvi-ously cannot be -- that the Lewis affidavit was solicited by Mr. Charno in connection with the Department's Section 105c antitrust investigation of these Applicants.
Rather, the motion to strike is premised on Applicants' failure to expose the error in Mr. Lewis' contrary testimony at the hearing.
In all honesty, we were not then any more aware than was the Licensing Board that Mr. Lewis' reference to the "Zimmer plant" was untrue (Lewis 5617-18 (24-25 & 1-2)).
This is not to deny that the correspondence in Ap-pendix B to Applicants' Reply Brief was at the time among the 1/
Applicants suggested such a course to the Department (albeit to no avail) in " Applicants' Response To Motion Of Department of Justice Pertaining To The Filing Of Affidavits And The Reopening Of~ Discovery", at p.
3 n.3, filed with the Appeal Board on February 24, 1977.
- hundreds of thousands of documents in Applicants' possession which had been produced in this case.
Regrettably, however, we did not actually learn of the existence of these three letters in our files until well after the close of the record below.
For this understandable oversight, Applicants' counsel are per-haps not entirely free from criticism.
However, the Department can hardly expect to be excused on this ground for withholding the true facts as to the Lewis affidavit in the face of false testimony given in direct response to the Department's interro-gation, and while Mr. Charno, who obviously knew better, was sitting at the counsel table.-2/
When the Department made it plain that it had no in-9 tention, despite our entreaty (see n.1, supra), to correct the record, but, instead, was intent on trying to capitalize on the false testimony by Mr. Lewis, we considered it appropriate to bring the matter to the attention of this Appeal Board.
The expression of disappointment is genuine.
The documents attached as Appendix B are displayed, not for their " probative value" in the sense suggested by the Department (DOJ Mot., p.
3), but merely to confirm that Mr. Charno did in fact solicit such an affidavit and that, in response to his request, the Lewis affi-davit (among others) was in fact forwarded to Mr. Charno by Mr. Ardery.
2/
While the Department's interrogation of Mr. Lewis was handled by Mr. Berger, Mr. Charno was present throughout the examination.
He actively participated in the hearing both di-rectly prior to and immediately following Mr. Lewis' testimony (see, e.g.,
Tr. at 5604 and 5646), but remained silent during the examination and cross-examination of this witness.
., This information is, we believe, relevant to the Appeal Board's review of Applicants' behavior, which, as we have maintained throughout, should not be condemned as incon-sistent with the antitrust laws.
If the administrative review process of this agency is intent upon reaching the proper and just result in fairness to all parties to the controversy --
and we firmly believe it is -- we can perceive of no legitimate reason for the Appeal Board to ignore the true facts surrounding the preparation of the Lewis affidavit.
The weight which is ultimately attached to that affidavit is, of course, for the Appeal Board alone to decide.
The only purpose for our marginal comment and its supporting documentation is to enable this Board to make an infcrmed, not a misinformed, decision in this regard.
WHEREFORE, Applicants believe that the Department's motion to strike is not well taken and should be denied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By:
wL1 J)-
Wm. Bradford Refnolds Robert E.
Zahler Counsel for Applicants Dated:
August 12, 1977.
t
.. g UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of
)
)
THE TOLEDO EDISON COMPANY and
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
Docket No. 50-346A COMPANY
)
(Davis-Besse Nuclear Power Station,
)
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.
)
(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-500A Units 2 and 3)
)
50-501A CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing
" Applicants' Reply To The Department Of Justice's Motion To Strike" were served upon each of the persons listed on the attached Service List, by hand delivering copies to those persons in the Washington, D.
C.
area, and by mailing copies, postage prepaid, to all others, all on this 12th day of August, 1977.
SHAW, PITTMAN, POTTS & TROWBRIDGE y: T..
Bradfo9d Reynolys' 6 Wm.
Counsel for Applicants
UNITED STATES OF AMERICA "UCLEAR REGULATORY COMMIS' 7N Sefore the Atomic Safety and Licensinc. Ac.c.eal Ecard e
In the Matter of
)
)
THE TOLEDO SDISON COMPANY and
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
Decket No. 50-346A COMPANY
)
(Davis-Besse Nuclear Power Station,
)
Unit 1)
)
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
)
Docket Nos. 50-440A (Perry Nuclear Power Plant,
)
SG-441A Units 1 and 2)
)
)
THE TOLEDO EDISON COMPANY, ET AL.
)
(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-500A Units 2 and 3)
)20-003,a SERVICE LIST Alan S.
Rosenthal, Esq.
Ivan W.
Smith, Esq.
Chairman, Atcmic Safety and Atcmic Safecy and Licensing Board Licensing Appeal Scard U.S.
Nuclear Regulatory Cermissic U.S.
Nuclear Regulatory Ccmmission Washington, D.
C.
20555 Washington, D.
C.
20555 John M.
Frysiak, Esq.
Jercme E.
Sharfman, Esq.
Atomic Safecy and Licensing Scard Atcmic Safety and Licensing U.S. Nuclear Regulatory Commissic Appeal Board
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Washingcon, D.
C.
20555 U.S.
Nuclear Regulatory Commission Washington, D.
C.
20555 Atcmic Safety and Licensing Ecard Panel Richard S.
Salzman, Esq.
U.S. Nuclear Reculatcrv Commissic:
Atomic Safety and Licensing Washington, D.
C.
2'0555 Appeal Board U.S. Nuclear Regulatory Ccmmission Occketing & Service Section Washington, D.
C.
20555 Office of the Secretary U.S.
Nuclear Reculatory Ccmmissio:
Atomic Sa. ty and u.lcensing e
Appeal Boarc Panel Washington, D. 6. 20006
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U.S. Nuclear Reculatorv Commission Washincton, D.
C.
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Roy P.
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Office of the Execucive Legal Director U.S.
Nuclear Regulatory Ccemissic:
Washington, D.
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20555 I
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Joseph J.
Saunders, Esq.
Terence H. Eenbow, Esq.
Antitrust Division A. Edward Grashof, Esq.
Dcpartment of Justice Steven A.
Berger, Esq.
Washington, D.
C.
20530 Steven 3.
Peri, Esq.
Winthrop, 'S timson, Putnam & Pcherts-Malvin G.
Berger, Esq.
40 Wall Street Janet R. Urban, Esq.
New York, New York 10005 Antitrust Division-P.
O.
Box 7513 Thomas J. Munsch, Esq.
Washington, D.
C.
20044 General Attorney Duquesne Light Company Reuben Goldberg, Esq.
435 Sixth Avenue David C.
Hjelmfelt, Esq.
Pittsburgh, PA 15219 Michael D.
Oldak, Esq.
.Goldberg, Fieldman & Hjelmfelt David McNeil Olds, Esq.
Suite 550 Reed Smith Shaw & McClay 17.00 Pennsylvania Ave.,
N.W.
Union Trust Building Washington, D.
C.
20006 Box 2009 Pittsburgh, Pi 15230 Vincent C. Campanella, Esq.
Director of Law Lee A.
Rau, Esq.
Robert D.
Hart, Esq.
Joseph A.
Rieser, Jr.,_Esq.
1st Ass't Director of Law Reed Smith Shaw & McClay a
City of Cleveland Suite 900 213 City Hall 1150 Connecticut Avenue, N.W.
Cleveland, Ohio 44114 Washington, D.
C.
20036 Frank R.
Clokey, Esq.
James R.
Edgerly, Esq.
Special Ass't Attorney General Secretary and General Counsel Ecom 219 Pennsylvania Pcwer Ccmpany Towne House Apartments One East Washington Street Harrisburg, PA 17105 New' Castle, PA 16103 Donald ~H.
Hauser, Esq.
Jchn Lansdale, Esq.
Victor F.
Greenslade, Jr., Esq.
Ccx, Langford & Brown William J.
Kerner, Esq.
21 Dupont Circle, N.W..
The Cleveland Electric Washington, D.
C.
20036 Illuminating Company 55 Public Square Alan P. Suchmann, Esq.
Cleveland,. Ohio 44101-Squire, Sanders & Dempsey
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1800. Union Cenmerce Building Michael M.
Briley, Esq.
Clevela'nd, Ohio 44115 Paul M.
Smart, Esc.
Ec. ward.A. Matto, Esq.
-Fuller, Henry,- Hodge_& ~ Snyder P.
O.
Box 2083 Richard'M. Fires:One, Esq.
. Toledo, Oh.o 43603 Karen H.
Adkins, Esq.
Antitrust Section Russell J.
Spetrino, Esq.
30 E.
Broad Street, 15th Ficor Thomas A.
Kayuha, Esq.
Columbus, Ohio 43215 Ohio _ Edison Ccmpany Cw.., s too.n.. e.
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76 Scuta, Main Street-Assistaht Atccrney General" Akron, Ohio 44308 Environmencal Law Section-361 E.
Ercad Street, 8th Flec Columbus, Ohio 43215
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