ML19329D225
| ML19329D225 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 01/31/1975 |
| From: | Farmakides J Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 8002260796 | |
| Download: ML19329D225 (65) | |
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NUCLE AR REGUL ATORY COMMISSION
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Telephone:
l (Code 202) 547-6222 ACE - FEDERAL REPORTERS. INC.
Official Reporters
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MTl004 WIDE COVERAGE 80022607 %
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GIBSON ngl 1
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
4 PREHEARING CONFERENCE 5
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In the matter of:
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TOLEDO EDISON COMPANY and CLEVELAND ELEC2RIC ILLUMINATING Docket No. 50-346A 8li COMPANY 9
(Davis-Pesso Nuclear Power Station) 10 and 1Ip CLEVELAND ELECTRIC ILLUMINATING tj COMPANY, et al.
12' It Docket Nos. 50-440A 13;i: (Perry Nuclear Generating Station, 50-4A.lA
]Unita1and2) i li 143____________________
Courtroom No. 24 15i
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U. S. D'istrict Court 16 ll ll 3rd & Constitution, N. W.
Washington, D.
C.
17 Friday, 31 January 1975 18 i
j The prehearing conference in the above-entitled matter 19, was convened, pursuant to notice, at 9:35 a.m.
20 BEFORE:
21 JOHN FARMAKIDES, Chairman, 22 Atomic Safety and Licensing Board Panel l
23 JOHN BREBBIA, Esq., Member 24 '
DOUGLAS RIGLER, Esq., Member Ace Feo,rne Repor*ers. Inc.
25 lj ls lla fi I;
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ll 943 1
APPEARANCES:
2 DAVID HJELMFELT, Esq., Suite 550, 1700 Pennsylvania
- Avenue, N. W., Washington, D. C.; on behalf of the 3
City of Cleveland, Ohio.
4 W. BRADFORD REYNOLDS, Esq., and GERALD CHARNOFF, Esq.,
Shaw, Pittman, Potts & Trowbridge, 910 Seventeenth 5
Street, N. W., Washington, D.
C.,
and DONALD H. HAUSER, Corporation Solicitor, Cleveland Electric Illuminating 6
Company; on behalf of the Applicants.
7 BENJAMIN H. VOGLER, Esq., and ROY LESSY, Esq., Office of General Counsel, United States Nuclear Regulatory 8:
, Commission, Washington, D.
C.,
20555; on bahalf of the Regulatory Staff, Nuclear Regulatory Commission.
9 I
STEVEN M. CHARNO, Esq., Antitrust Division, United 10 States Department of Justice, Washington, D.C.
20530; on behalf of Department.of Justice,.
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PESEEESlEEE 2
CIIAIRMAN FARMAKIDES :
Good morning.
We will 3
commence this prehearing conference and for purposes of identi-4 fication this is Docket No. 50-346A, 50-440A and 50-441A.
5 This conference was called to discuss further a 6
matter that arose from a motion for an order compelling pro-7 duction and delivery of documents which motion was discussed 8
further during oral argument the early part of this month, 9
following which the Board ruled that the Department of Justice, i
10 the Nuclear Regulatory Commission, the City of Cleveland, and 11 any other party, primarily ANPO and the State of Ohio, could 12 review the materials already gathered by the Applicants and to 13 screen then to see whien of those materials they would like to 14 review further.'
15 We were then to hold a prehearing conference again 16 on January 17, at which' time we would receive in the record I
17 reports of what took place.
The parties requested and the 18 Board found good cause to extend that time until today.
19 The Board also went to Cleveland to see examples of j
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20 some of the documents and how they were packaged and presented j
21 and the Board also went to Akron, Ohio to visit Ohio Edison.
22 In Cleveland the Board visited Cleveland Electric Illuminating 23 Company.
By the Board, I mean myself.
It was not considered t
3 24 necessary that all three members of the Board go, so I volun-Als ede rol Reporters. Inc.
25 teered.
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945 1
I think it was a most useful exercise.
I think it 2
has resulted in the parties understanding each other's problams 3
a little bit more, so perhaps we're a little bit closer to a 4
resolution of this problem.
5 I'd like to have a report and I don't care how we 6
proceed.
Perhaps we can just take it in order of the parties 7
as they appear.
Mr. Charno, you happen to be sitting in the 8
right place at the right time.
9 MR. CHARNO:
Can I pass to the AEC staff?
They've 10 got our compiled figures.
II CHAIRMAN FARMAKIDES:
All right, sir.
Mr. Lessy.
12 MR. LESSY:
Pursuant to this Board's preliminary IJ ruling o f Ja nua ry 3, 1975, the start has traveled to each of 14 the five Applicants' offices in Ohio and Western Pennsylvania 15 to review and scre - documents and the methods of organization 16 utilized by each of the Applicant companies.
17 Pursuant to the procedure discussed with the 18 Chairman at the CEI offices on January 7, 1975, Staff has r
19 marked with colored ' dots those documents which it wisnes to 20 examine more closely at a later date.
Employees of each of the I
21 Applicant companies have been fully advised as to the marking 22 system used by Staff.
23 The Department of Justice has also utilized a 24 similar system.
- 1., oderol Reporters, Inc.
25 The following are the results of this preliminary I
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screening:
The figures used include documents screened by the 2
Department of Justice.
This is a composite figure on behalf i
3 of the government.
4 First, the government was able to eliminate as eith( r S! not responsive or not desired approximately 9.1 percent of those 6
materials that were " produced. "
Thus, pursuant to the Board's i
7 ruling, the government wishes to examine in detail a total of 2
8 only 24 file drawers of material or 8 file cabinets.
t i
9 Now the Board will recall that Applicants in their 10 letter of 12-19-74 said that approximately 201 file drawers r
1 II were produced and available for inspection.
The raw figures 12 are as follows:
The government wishes to examine a total of j
13 595-1/2 jnche.s of materials.
A file dra.cr contains 27 inches I4 and this equals 22 file drawers.
Two additional drawers must iS I be added because of the company-by-company breakdown.
This 16 totals, as I mentioned previously, 24 file drawers or z.pproxi-4 I
17 mately 60,000 pages.
18 Second, cost of certified copies.
The approximate 19 cost of pro.iding both the Department of Justice and Staff with 20 copies of the requested documents pursuant to the joint request, 21 assuming Xeroxing cost of 60 a page is $7,200.
There is no 22 mailing charge included as the government would furnish frank 23 envelopes.
24 If the government were to be provided with one
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25 Xerox copy only the cost would be half of that, or $3,600.
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Secondly, if the requested materials were to be 2 shipped from each of the five cities to a central depository in 3 Washington, D.C. and then reshipped railway express would charge 4
a grand total of approximately $178.64'for this.
The breakdown 5
of shipping costs would be as follows:
At Cleveland Electric l
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6 Illuminating Company there were a total of three file drawers.
7 The roundtrip shipping charges would be $26.26.
At Duquesne 8
there were eight file drawers,'a total of S41.20.
Toledo Edicon,
9 five file drawers, a total of $32.42.
At Ohio Edison, a total 10 of six file drawers, a total of $38.44; and at Pennsylvania.
11 Power, two file drawers, $24.70.
Tais totals $144.32.
12 REA pickup and delivery charges of $34.32 must also 13 ibe added, producing an approximate total ccst of $173.64.
14 Because of the small number of file drawers that 15 we're requesting, this figure assumes that employees of the com-i 16 pany would make the file drawers readily available to REA when 17 the truck came; that is, they could take it down the elevator 18 to approximately the first floor.
If that were not available,
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19 we would also have to add additional small sums; but at CEI, 1
20 for example, there being a total of only three file drawers, 21 we didn't feel this would be any burden.
4 22 Third, cost incurred by the government in its initial 23 screening.
In order to comply with the Board's preliminary I
24 ruling, the government has expended approximately $4,000 for A., rederal Reportert Inc.
l 25 air fare, lodging, etc., not including salaries.
In addition, I
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t 948 I 438 professional hours were spent away from the office initially 2
screening materials.
Accordingly, the Board should be aware, 3
as pleaded by Staff on January 7,1975, that Staff's firm 4 position is that any expenses incurred by Applicants in order 0
to comply with this Board's final ruling on discovery should be 6
borne solely by Applicants.
7 If the Board were to order that a proportionate 8
share of expenses be borne by the government, Staff would j
adamantly and urgently request, pursuant to 10 CFR 2.730, 9
10 Subsections F and G, certification up to the Commission of II expenses and the appropriateness of Applicants' motion for a 12 protective order.
. rime.
In the event certified copies were to be 13 l
Id ordored, we will require 45 days af ter receipt of those copies l
15 before we would be in a position to proceed with depositions.
16 In the event a special depository in Washington, D. C. would I7 be ordered, we would require 90 days after delivery before we 1
l 18 would be in a position to proceed with depositions.
I 19 Because of the small quantity of file drawers --
20 that is a total of 24 -- and in order to save time, it is i
21 suggested that all 25 files be brought to Washington at the 22 same time if a central depository were to be ordered.
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23 Additionally, if a central depository were to be 24 ordered, based on our experience in the field, we strongly~.
A.
ede rol Reporters, Inc.
request that the order establishing the depository contain the
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I following three provisions as a minimum:
(1)
That the deposi-i i
2 tory be a single large room or connecting rocms with tables.
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chairs, adequate lighting and reliable Xerox facilities; (2) i d'
j That the govermert have unrestricted access to the depository
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5 during normal business hours; (3)
That the produced material 6
shall remain intact and shall not be moved or removed from the i
7 room except pursuant to expressed Board order.
8 In addition, we have five observations pursuant to our I
9 initial screening that we would like to make.
First, we were
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10 disappointed that at CEI on Tuesday, January 7, 1975 Applicants i
II were not represented by counsel so that a dialogue and dis-I2 d
cussion which may have facilitated our chore was not possible.
13l That was the date at *thich tiac the Chairman and the gcVernmenti 14 and the City of Cleveland examined the offices.
15 Second, we were disappointed that pursuant to the 16 Chairman's request during a conference call which took place 17 I believe on January 8, 1975, it took three weeks for counsel 1
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18 for Applicants to attempt to demonstrate the relevancv nf two i
I 19 random items selected by the Chairman from the City c ' t-20 covery request at CEI.
21 In addition, the mode of communication I believe that was a
l 22 requested by the Chairman and agreed to by Mr. Charnoff was a 23 conference call, not a letter which we have just received.
24 Thirdly, notwithstanding axpressed language to the con-Ac6. ederal Repo<ters, Inc.
25 trary on page 18 of CEI's answars to interrogatories, there was 6
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0 950 I
no central document depository at CEI.
t 2{l Fourth, we're surprised and disappointed that our review 3
l of CEI's production yielded only from 33 to 50 percent of what 4
our review of Duque.ne, Toledo Edison and Ohio Edison productio.1 5
had yielded.
This failure to produce by CEI will necessitate 6
extensive depositions pursuant to subpoenas duces tecum in 7
Cleveland and we hope the Board will take this into considera-1 l
8 tion in its revised schedule.
9 Fifth, we generally feel that the volume figures contained 10 in Applicants' counsel's letter of 12-19-74 must have been II greatly exaggerated.
In fact, a very large percentage of the l
12 materials produced were produced only in response to a few 13 questions -
With respect to many of the ques tions there were j
I4 very few materials produced.
15 Sixth, generally, the labeling of materials was bad.
The 16
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best example of this is at Ohio Edison, pursuant to Joint t
I 17 Request No. 7, we asked for a description of reliability a
18 criteria used in the system.
What we were shown was a roomful i
li I9 of IBM runs which tested the reliability criteria against
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20 various components of the system.
Nowhere in that room were 21 the actual reliability criteria disclosed and the room was a
22 approximately the size of this room and filled with IBM runs.
23 We immediately requested a conference with the Assistant 24 Counsel of Ohio Edison and the Chief Engineer to ask if they A
ide rol Reporters, Inc.
25 could help in trying to determine the relevancy of what was 4
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produced.
We were then told that the actual reliability cri-j teria were contained upstairs in another room in two black i
2 I
n tebooks and that these were, as we mentioned previously, the 3
4 tests.
s We went upstaire and the two black notebooks were con-l 5
tained in a corner of a room but not labeled.
Once we opened 6
the notebooks we found that there was a mark, " Government 7
t Request No.
7," but the two black notebooks were not contained 8
with the rest of the produced documents.
They were separate 9
i 10 and apart.
Accordingly, on the basis of that discussion, we were'
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lj able to eliminate an entire roomful of IBM runs.
12 That'? ell 'ec have to report at thir time, sir.
l 13 CHAIRMAN FARMAKIDES: Could you tell me again about CEI's ja fa lure to produce that you mentioned?
Go into more detail on 15 I
that, please.
That was your item number four, I believe.
16 MR. LESSY:
The way we have structured this, the Depart-
- 7 ment is going to go into detail in their remarks.
18 CHAIRMAN FARMAKIDES:
Off the record.
l j9 (Discussion off the record) t l
20 CHAIRMAN FARMAKIDES:
Back on the record.
21 I'd like to hear Mr. Hjelmfelt and then the Applicants.
22
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Mr. Vogler, did you have anything else or Mr. Charno?
23 l
MR. CHARNO:
If I may, first, we had some problems with 24 acw. ederal Reporters, Inc.
labeling that necessitated our requesting a larger volume of 25 i
fl 952 1
documents from Ohio Edison than from anyone aise, and our pro-2 blem was with the labeling systen at Ohio Edison.
3 I prepared a small chart trying to illustrate by way of 4
example what our problem was.
When one looks at Department 5
of Justice Information Request No.
1, one finds that it's 6
cross-referenced to four City of Cleveland requests which are, 7
in turn, cross-referenced to the Joint Request of the City of 8
Cleveland Request and back to the Department of Justice's 9
Request.
10 So that in order to be sure you have seen everfthing that 11 is responsive to a single request, you end up,on the exampla 12 which was the only one I did all the way through, going to 17 13 different places.
Then, cbviously, you're going to go back 14 looking for something else unless you adopt the expedient that 15 we ultimately adopted which was going through everything which 16 was produced for the City of Cleveland for the Department of Ju tice and for the Staff.
17 s
18 As a result, we have a substantially larger volume of 19 documents from Ohio Edison than we do from anywhere else.
20 MR. BREBBIA:
Excuse me.
I'm not sure I understand the 21 point.
You made document requests for a certain number of 22 documents and they were cross-referenced to similar requests 23 by other parties?
24 MR. C11ARNO:
That's correct.
A:_. ederal Reporters, Inc.
25 MR. BREBBIA:
What concera is it that it therefore ultimat al) 4 1
1:
1 11 953 I
1 produced more documents than you anticipated?
2 MR. CHARNO:
A large amount of that material was 3
only marginally relevant to the original document request, if 4
at all.
For instance, if we had asked for documents relating I
to requests for participation in coordinated development, we S
6 would ultimately get every document that Ohio Edison produced i
We would have to go through to find those.
In other 7
on CAPCO.
8 words, the breakdown system was such that --
9 MR. BREBBIA:
Your criticism is that they should 10 have been broken down into finer categtries by the Applicants?
I 11 MR. CHARNO:
The labeling system was totally meaning i
12 less insofar cs Ohio Edison was concerned.
13' Md. BREBBIA:
The late.Ing on tnc categorics of I
3 14 files?
i MR. CHARNO:
That's correct.
15 16 MR. RIGLER:
Can you explain your diagram a little 17 better starting with your original reference and taking, for I
18 example, the fifth level reference of C-14B' "8
I
'I what goes on to get down to that little one?
J 19 20 MR. CHARNO:
Well, you look at the Department of 3
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4 21 Justice -- they had two master lists of discovery requests and 22 if you look at the Department of Justice's request which they 1s l
23 designate E-1, you will f f 31 E-1 cross-referenced to four i
24 different things, four dilferent City of Cleveland requests.
As recerol Repcrters, Inc.
25 Those are the "C" discovery requests.
When you look at C-12 1
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you will find it's cross-referenced to five different dis-2 covery re, quests and inquiry of their production staff indicatec 3
that in order to be sure that you would see every document 4
relative to DJ-l you would have to go through each of the 5
cross-references until you ran out of cross-references.
6 MR. BREBBIA:
Did they provide the cross-references?
7 MR. CHARNO:
They provided the two master lists of 8
cross-references.
That's correct.
9 CHAIRMAN FARMAKIDES:
But you indicate in your 10 fourth level that, for example, C-14 Y"
^" #8 B'
11 and there you found a reference for the firs t time.
12 MR. CHARNO:
C-14 occurs for the first time at the B
131 fourth level.
Tha fifth level is entirely reiterative --
14 redundant.
15 CHAIRMAN FARMAKIDES:
The fifth level is nothing 16 more than following through to be certain there's nothing 17 further on down.
But your C-14B' 18 there you find a reference for the first time?
I 19 MR. CHARMO:
That's correct.
20 CHAIRMAN FARMAKIDES:
Is that reference properly classified under C-14 r should that have been classified 21 B
22 under DJ-l?
23 MD. CHARNO:
It's properly classified under C-14B*
24 CHAIRMAN FARMAKIDES:
So it was a question of 4trederal Reporters, Inc.
25 manual work rather than any attempt to mislead?
4
'l 955 I
I MR. CHARNO:
Well, the problem is that when you 2
take a category of documents and then you cross-Jeference it 3
to something that hat marginal relationship, and then you 4
cross-reference that to something that has marginal relation-4 5
ship and then you cross-reference that to something that has 6
marginal relationship, by the time you got to the second, the i
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third or fourth levels of cross-reference they have little, if 8
any, relationship,'but there may be one dccument in that cate-9 gory.
i 10 Now we also found at Ohio Edison that there were l
Il documents we would have expected to find in certain categories 12 For example, documents relating to AMP Ohio, in the request l
13!
reference to AMP Ohio, which icre not in that request, were 14 not made available pursuant to that request; and after we
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15 tracked through all the cross-references on that particular 16 example the documents weren't in any of the cross-references, f
17 And we questioned staff and they said, "Well, we don' t have a y documents relating to AMP Ohio, if you haven' t found 18 n
19 them," and I said, "We haven' t found them and we have copies I
20 of documents that you have."
Then they found a file folder J
21 that had documents in it but it hadn't been referenced to any 22 of the appropriate references or cross-references.
23 CHAIRMAN FARMAKIDES:
Well, now, that's a completel r 24 different point from what you state here.
l Ace ederal Reporters, Inc.
l 25 MR. CHARNO:
That's true.
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1 CHAIRMAN FARMAKIDES:
And that point may well be a 2
little bit more important than here.
This, to me, connotes 1
3 workload, who's going to carry the workload.
4 MR. CHARNO:
I think we have already carried it.
5 I'm just explaining why we have more documents from them than 6
we would otherwise have.
We have overlapped, I'm sure, the 7.
City of Cleveland's request for documents frcm them also, 8
since there was no dichotomy between the two which could be i
9l observed.
10 CHAIRMAN FARMAKIDES:
In getting down to the fifth 11 level of references, did you find any references appearing for 12 the first time in that fifth level?
13 LK. C'ARNO:
Not on this particular document i
14 request.
As I said, this was the only one I worked through 15 and I just gave up and did everything.
It takes quite a 16 while to work out the cross-references because you're working I
17 with two pieces of paper and you want to make sure you don't 18 miss one.
19 CHAIRMAN FARMAKIDES:
All right, sir.
20 MR. CHARNO:
With respect to copies of documents
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pr duced, we fine-screened two drawers at CEI.
We went
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22 through every sheet of paper in them marking individual l
23 sheets of paper.
We found in no case did we have any interest 24 in or request production in Washington of any document that Aa ede rol Reporters. Inc.
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25 there wasn't a copy or wasn't accompanied by copies.
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Now certainly I can't generalize to any documents 2
other than the two drawers that we went through in detail, but 3
they were certainly well represented by copies, and I would 4
suggest that perhaps it would be helpful if the Applicants 5
would look a little bit more closely at their files to deter-6 mine if there aren' t copies available of a number of the docu-l 7'
ments that they're worried about being able to retain at their 8;
honic offices.
9 MR. RIGLER:
You're saying that you had multiple 10 copies of the same document which accounted for part of the 11 Volume?
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12 MR. CHARNO:
That, too.
I'm also saying that 13!
Applicants it.L Liully dald t. hey couldn't leL docuaents leave 1
l 14 their home offices becauce these were in large measure the only i
15 copies of those documents and they were required in the day-to-16 day work of the companies and we did not find that to be true 17, in the limited sample that we fine-screened.
18 MR. RIGLER:
On the production of copies, though, 19 couldn' t some of them have had marginal notations that would 20 have required them to produce multiple copies of the same 21 document?
22 MR. CHARNO:
No.
We noticed when there were multiple 23 copies they were generally an original and a succession of 24 copies with no notation on any of them.
I think this is due to A.
Jeral Reporters. tx.
25 the method by which at least C2I produced documents. They
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11 959 I
I produced file folders apparently when anything within the file 2
folder was relevant and no attempt was made to climinate the 3
duplications that we could observe.
4 The Department also has problems with the responsive 5
ness of some of the companies.
Let me start by saying that we 6
received very good cooperation and apparently fully responeive 7
production from Toledo Edison and from Duquesne Light.
With 8
respect to the other companies we had different problems in 9
different places.
10 As Mr. Lessy has pointed out, the volume of produc-II tion from the CEI of what we consider relevant production was 12 much smaller.
This was due to several factors that we can 4
i 13 l identify immediately.
One of whem was that CEI didn' t produco 1
I4 a large amount of material that was produccd by other companies 15 For instance, Toledo Edison and Duquesne Light, large volumes 16 of CAPCO minutes and indeed most of the materials that other 17 companies cecmed to have underlying those minutes were not 18 m de available to the Department or the Staff, as indicated, as a
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I9 being responsive.
Perhaps they were to the City of Cleveland.
20 We don't know.
But we feel that there are requests that we 21 made that that type of material should be responsive to and
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22 that other Applicants considered it responsive to.
l 23 We had similar problems with fragmentary production i
24 at Pe.:nsylvania Power and, to a much lesser extent, at Ohi'o-A<e ede rol Reporters, Inc.
25 Edison, with respect to CAPCO materials.
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So we have identified an inconsistency in production 2
of material which should be equally in the possession of each 3
of the companies involved.
We had a great deal of dif ficulty 4
locating materials relating to AMP Ohio in Ohio Edison, 5
Pennsylvania Power a'id CEI.
Now we can state with reasonable 6
certainty that those materials were not among those that we say l
7 l, we don't want to see further.
We can't state with absolute l
I 8I certainty that they may not be among the materials that we have 9
asked to be produced.
I think there are a, number of other 10 categories of documents where we have control documents that 11 we did not find.
We don't know whether or not they are in the 12 materials that we have asked to have produced.
I 13' This is due to the method by which we proceeded.
I 14 We went through in more detail material we rejected than 15 material we accepted.
If we find upon final production that 16 those materials are not included, we are going to have a serious>
17 problem that's going to go one of three ways:
Either, as Mr.
18 Lessy suggested, it will require extensive depositiorn -- it 1
19 certainly requires that this Board order the production of a 20 list of documents which have been destroyed so that we have some idea of whether the documen'.s that have not been produced 21 22 are no longer in existence -- and it could, if it's suf ficiently 23 comprehensive, necessitate further dccument discovery.
24 MR. BREBBIA:
Mr. Charno, you --
4:c4ederal Reporters, Inc.
25 MR. CHARNO:
Could I make one further point along 1
060 i
I the line of recponsiveness and then I think I have covered all l
2 I have to say on that subject.
3 We found in several companies the apparent absence of executive materials.
By'that, I mean memoranda, letters, 5
correspondence from executive offices.
Other companies were 6
very careful to produce this, notably Toledo Edison.
We saw 7
i executive materials at Ohio Edison and we saw the complete 8
files o'f the executives at Duquesne Light, but CEI, the files 9
appeared to be primarily the working files of the working 10 divisions and appeared to be *he same at Pennsylvania Fower.
11 i
MR. RIGLER:
Did you ask anyone at CEI to guide you I2 to the executive files?
i 13
.!R. CHAR.;0 :
We were infcrmed that everything wo 14 sought was located -- everything the Department of Justice 15 sought was located in one room.
Now we found later that that 16 wasn't -- we were informed on the site'that this was the case 17 by the staff individual who was assisting us.
We did find 18
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one cross-reference in one of the drawers that directed us to 1
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another room.
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MR. RIGLER:
But going back to the executive file 2I problem, did you ask that staff individual to help you find 22 the portion of the room in which the executive files were 23 stored?
24 MR. CHARNO:
He said that any files that were in Ace-rederal Reporters, Irm.
25 there would be located in the drawer that was responsive to tho I
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specific request and he wasn't sure of the nature and extent I.
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MR. RIGLER:
How many days were you at CEI?
4 MR. CHARNO:
Well, we were originally there one I
5 day, came back two days, and then the next me.cning we sought 6!
production of the catorials that we had been cross-referenced l
7l to.
We were told that we couldn' t get to those materials l
l 8l because they were in an attorney's office and the attorney i
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wasn't there.
So we came back the following week for an addi-l l
10, tional day to go through those materials.
And there were two 11:
of us there most of that period.
I 12; c1R. BREB3IA:
Mr. Charno, back to the question I i
13!
vas going to mik you earlier, the cuggocticn cf miccing dccu-14 ments, does that arise out of references to documents which to 3
1 15; your knowledge were not produced which appear in documents that l
16l were produced?
Is that what you' re referring to?
i I
17l MR. CHARNO:
No, sir.
I'm referring to documents l
18 that the Department presently has in its possession that were 19 either prepared by or received by one of the Applicants which 20 we did not discover.
21 MR. BREBBIA:
You mean which were not produced in th 2 22 materials that were produced?
23 MR. CIIARNo:
Let me back up.
I'm saying that we 24 did not see them in the materials we rejected and they may-be Ace ed wol Reportert Inc.
25 in the materials that we have requested, but we did not see
't
I 962 then on a rapid, once-through.
MR. BREBBIA:
I follow that part of it.
What I 2
an t f 11 w is how you arrive at the fact that there are 3
missing documents.
Do you have documents that refer to docu-4 nts that you didn' t find?
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MR. CHARNO:
No.
We have documents that we did not 6
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We have them from other sources.
j 7
MR. RIGLER:
In the interval betwoon visits to CEI 8i or these other companies, were you in contact with Mr. Reynolds j-9 and Mr. Charnoff or anyone to see if they could help you solve 10 jj your problems?
MR. CHARNO:
No, we were not.
This was in the 12 n=tur Of u r*u" acreen und we didn' c teally realize une 13 problems with the exception of Ohio Edison, and we worked very j4 ha d while we were there, but that problem was inherent in the r
15 makeup of their production.
g MR. BREBBIA:
Well, if I can summarize your position j7 f r the Board, you have done the rough screen and you have 18 reduced this to roughly 25 file drawers, and is it your feeling q
j9 that if we order the production of the 25 file drawers or we 20 rder them reproduced and shipped to you that your discovery 21 w uld perhaps not be substantially completed as a result of 22 what you feel to be possible gaps in the documents that you 1
23 have requested?
24 Ace-,oderal Reporters, Inc.
MR. CHARNO:
I think that is our position.
We know 25 i
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there are substantial gaps in production.
For instance, the c
2 CAPCO materials, we know that one produced them and another I
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We don't know whether those gaps are due to the l
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destruction of the documents, which is why we want the list of 5
documents that have been destroyed which would explain it 6
certainly, and may be the complete and sole explanation of why 7
they weren't produced.
8 With respect to other categories of documents, we 9
are not sure whether they are in what is beirg produced or not, i
10 but it is a possibility -- and I raise this point -- a possibil it) i 11 that document discovery has not been adequate thus far and l.
12 production has not been adequate and it is not a certainty but 13 !
l I want to put the Board on notice.
j MR. BREBBIA:
In regard to the reference to CAPCO 15 documents, are you saying that, for instance, one of the 16 Applicants has produced an entire CAPCO file and you expected I
17 the same file to be reproduced, or you expect different docu-18 ments to be produced?
r.
I9 MR. CHARNO:
I'm actually saying both.
Say Duquesne 20 Light,as an example, produced the CAPCO executive conmittee
- l t
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minutes which I think are clearly called for.
They also pro-22 i
duced their internal memoranda relating to those minutes.
Now 23 we received neither from CEI.
MR. BREBBIA:
Well, you wouldn't need but one ' set Ace ederol Reporters, Inc.
f i
25 of the minutes.
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964 i
MR. CHARNO:
That's correct.
2 MR. BREBBIA:
If you had a complete set of the 3
minutes that would be the same minutes -- I mean, if you were i
4 satisfied you had them for every meeting --
5 MR. CHARNO:
That's true.
We requested only one 6
set of minutes.
7 MR. BREBBIA:
But if there were any documents from 8
reading the minutes you found them in one place and in at least i
9 one other place they were not produced without a notation that 10 there were none?
11 MR. CHARNO:
Not only without a notation that there 12 were none, but the fact that the minutes themselves were not 13 produced at the second location tends to eliminate the assump-t 14 tion that I would normally make that when I didn't see them 15 they didn't exist.
I 16, MR. BRLaBIA:
Well, you go back to your original 17 discussion in your original request to the effect that you t
18 wanted a list of what was destroyed.
19 MR. CHARNO:
Definitely.
I j
20 MR. BREBBIA:
So you could resolve this problem 21 without further discovery.
22 MR. CHARNO:
Hopefully, it would hava that effect.
23 Obviously, if a document was not produced that we knew existed 24 and further was not on the list of destroyed documents, it Ace
- deral Reporters, Inc.
i 25 would not resolve the problem.
I think that covers the i
I-o
1 965 i
4 II Department's position.
2 CHAIRMAN FAR*4AKIDES:
Thank you.
1 3
Mr. Hjelmfelt, and then we'll get to the Applicant.
l 4
MR. HJELMFELT:
Yes, sir.
The situation of the I
i 5!
City of Cleveland is a bit dif ferent at this time because at I
6 the point at which the Chairman made the suggestion as to the 7f methed of marking files that we requested or documents that we 8
would like to have produced in Washington the City had already 9
completed tours with a rough screen in all or nearly all of 10' these cities.
11 Accordingly, we proceeded on the basis of developing 12 a list of categories of documents which I would find to be morc 13 in keeping with the Chairman's earlier suggestion that possibir 14 as a result of the rough screening there could be a narrowing 15 l of the document requests.
I 16l Copies of our suggested listing of categories of i
I7 documents that would not be needed to be oroduced here have 18 been furnished to all the parties.
I have copies available I9' for the Board if the Board desires to see it.
Do you have any 20 feeling in that regard?
Would you like me to hand them up?
21 l
CHAIRMAN FARMAKIDES:
I think we may need to see 22 those, yes, but let's hold off a minute.
Let's hear the rest 23 of your comments, sir.
I 24 MR. HJELMFELT:
The result is that it's our estimate Ace
- eral Reporters, Inc.
l 25 that the total number of file drawers which de would desire i
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produced in Washington has been reduced to 60 file drawers, l
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i which comes out to an average of 12 from each of the cities.
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12 from each of the cities and as part of our method of settine l
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j forth categories where they're referring to documents which i
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ordinarily are available from all five of the Applicants or-i 7;
may be available in the files of all five of the Applicants we i
81 I
have not undertaken to designate a particular set from a i
9 particular city, but rather, we would allow the Applicants to i
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10 divide that chore among themselves in a nature that they could 11 more equitably distribute the number of file drawers.
If they I
12I prefer, we could designate a particular Applicant to produce 13 sets.
With respect to the costs of producing the file I
15 drawers, the cost figure that I have is developed from the n
i 16!l actual transportacion by RZA of two file drawers from the City 17 of Cleveland to our offices at $6.33 per file sent in transfer i
18 files, and by my arithmetic for the 60 drawers, going two ways, 19' I come up with a figure of $777.
20' We would suggest that when the documents are 21 delivered to Washington that we would need approximately three 22 months to review the documents and thereafter we would request 23 one additional month to prepare for depositions, for a total 24 f f ur months.
- Ace s-d.,oi R p,ters, inc.
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I might add to that, that my experience viewing the J
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967 1
CEI documents and that that I understand from discussing with 2
Mr. Brand his experience, both there and the other cities, 3
would very much coincide with the experience of the Department 1
I 4
of Justice with respect to materials that were produced and i
5 the comparability of materials that were produced in other of 6j this Applicant's cities.
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7l MR. BREBBIA:
Mr. Hjel= felt, I understand 8j the position of the governtent on the question of production I
9 of documents in Washington because there are two agencies that f
10 are located in the City of Washington.
The document requests 11 for production made by you are in fact made by the City of 12; Cleveland.
The City of Cleveland is located in fairly close 13 proximity to most of these organizations from whom you sub-
)
14 poenaed documents.
15 Why should this Board put the Applicants to the l
16 ii burden of shipoing documents for the City of Cleveland to 17 Washington?
18 MR. HJELMFELT:
Well, Your Honor, the actual work 19 of course that's going to be done, the utilization of the docu-20 ments, will be done by Washington counsel for the City of 21 Cleveland.
So the fact that the City itself is the intervening 22 party does not relate to where the documents are going to be 23 utilized.
24 MR. BREBBIA:
Well, document requests are not Ace Federal Reporters, Inc.
25 usually governed by the convenience of counse'1, Mr. Hjelmfelt.
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you're making it on their behalf at least, and they are located l
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in Cleveland.
You're asking us, despite that fact, to put the i
4 Applicants to the expense or to bear the expense of shipping 5
the documents here for your convenience.
6 Now the Justice Department and the Commission Staff 1
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are located in Washington.
They don' t have staff out there i
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and they understandably asked for production here.
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MR. HJELMFELT:
Yes, sir.
The City would suggest i
1 10 that the circumstances of having the documents centrally l
11 located, particularly when there are documents that, as was t
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j 15 trally located in one locality.
i 16 Secondly, the time required by the City to complete i
17 its review of the documents we believe would be shortened by 1
1 18 having the documents located not simply in one place but in a
19 Washington where those persons reviewing the documents will be 4
20 located, and also having the documents from all the cities 21 together at one place from all the Applicants.
22 MR. BREBBIA:
When you made your document request I
23 originally before we got into this fracas you made no request l
24 for production of documents in Washington.
j AceJederal Reporters Inc.
25 MR. I!JELMFCLT:
That's correct, Your Hon 1
and in i
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MR. BREBBIA:
Well, you didn't ask.
I don't under-5 stand that statement.
You didn' t ask them to be produced in 6
Washington originally when your e::perience was in other hearings I
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that you have been in that you did request them to be produced i
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in Washington.
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MR. HJELMFELT:
I'm sorry.
I misled you there.
The 10 other AEC hearings in which we have been involved -- for 11, example, the Farley case and the Waterford case, where all the i
I I
12 documents had not reached the production stage, the Board had 13 indicated that a central depository would be established in i
i 14 Washington and in the Farley case Alabama Power Company pro-1 15 duced all docunents in Washington and we did not specifically l
16t request that they be produced here.
17 CHAIRMAN FARMAKIDES:
I think though, Mr. Hjelmfelt, 18 in both of those cases the Applicants agreed to that procedure 19 as part of a discussion they had with all counsel.
Isn't that 20 correct, sir?
21 MR. HJELMFELT:
That's correct, Your Honor.
22 CHAIRMAN FARMAKIDES:
Anything else, sir?
23 MR. HJELMPELT:
Not at this time.
MR. RIGLER:
Tell me again about your 60 file 24 AceJ aderoi Reporters, Inc.
25 drawer figure, how you came to that.
970 MR. HJELMFELT:
Yes, sir.
That is an estimate based i
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upon the quantities of material that we know from observation 3
that we have eliminated through the categories that.te have l
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said we do not require produced here.
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MR. BREBBIA:
This is from a screen made by you 5
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screening documents, from the actual screening of documents?
i 7
MR. HJELMFELT:
That's right, frcm actually going i
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Which was much more ex' tensive than the l
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10 rough scre.a that took place in the past couple weeks?
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11 MR. HJELMFELT:
Well, a portion of the screening 12 was because I started out early in December simply reviewing 13{
documents, but thereafter we did a rough survey screen equiva-14 lent to what the Staff and the Department did.
MR. RIGLER:
If we establish a central document i
15 i
16 ll depository in 'tachington, would the City of Cleveland be i'
17l amenable to picking up part of the tab for production of addi-1 t
I tion l files over and above those requested by the Staff and a
18 19 Justice?
You have given us a figure o'f $777.
I assume.here's 20 some duplication in that between the files you would be request iz 21 and the 25 files that Justice and Staff want.
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22 MR. HJELMFELT:
I assume there would be, Your Honor.
23 MR. BREBBIA:
You don't know offhand whether they 24 are all included or what number of them would be included in Ar
-deral Reporters. Inc.
25 the 25 drawers asked for by the Staff and the Justice Departme:,t?
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I MR. HJELMFELT No, I don't.
However, it is 2
obvio"3 that there's a great many CAPCO documents that we're 3
requesting to see that would also be sought by the other 4
intervenors -- or the Staff and the Department -- and l
l 5
accordingly, it would be a considerable duplication I would I
6l believe between what we are asking and what the Department and 7
Staff are asking.
That's particularly true with the Applicanta 8'
other than the Cleveland Electric Illuminating Company.
9 MR. RIGLER:
Do you want to reflect further about 10 my question about picking up the cost while listening to the II Applicant?
12 MR. HJELMFELT:
Yes, sir.
13 CHAIPMAM FARMAKIDES:
I have a couple more points.
14 Mr. Hjelmfelt, the last point, however, the NRC Staff and the 15.
Department of Justice Staf f, both of those people vere il
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160 separating out documents by apoending to them some sort of I
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17 i indicator.
You're talking about approximately 60 file drawers 18 bas d on categories.
So we really can't tell if there's any e
1 19 overlapping.
Who in the world would decide which documents 20 in fact were overlapping?
That would be quite a' job in itself 21 So we're talking about 60 file drawers as to yourself and 25 22 l
as to the Justice Department and Staff, whicP is roughly 85 23 file drawers.
i 24 MR. HJELMFELT:
That is true if t ose categories Ac ferol Reporters, Inc.
25 we have asked for are not fully duplicated in requests by I
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I 2'
CHAIRMAN FARMAKIDES:
But who's to determine that?
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You see?
Are you going to take that job on?
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MR. HJELMFELT:
Well, I should think that, for l
5 example, if the Department has requested all CAPCO executive 6l minutes from one of the parties and we have a request of a i
l 7i similar nature, then it would be obvious that they're over-i 8l lapping.
i 9!
CHAIRMAN FARMAKIDES :
Yes, but let me clarify this l
J 10 1 point.
Mr. Charno, you don' t have a list of the documents Ilj that you have tabbed, have you?
l 12' MR. CHARNO:
No.
The Department Staff individually 13 marked everything that was to be produced.
I4l CHAIRMAN FARMAKIDES :
Okay.
So you don't really 4
1 15l know that you have asked for all CAPCO documents.
All you d;
i 16 li kncu is you have marked certain documents and you want those l
17; produced here.
18 MR. CHARNO:
I think there are categories that we 19 could readily agree that we had asked for all the document,1 20 in that category; for instance, CAPCO executive minutes.
2I CHAIRMAN FARMAKIDES:
Anything else?
22 MR. CHARNO:
I think that would best be directed 23 to the Staff since they did most of the structural search.
24 MR. LESSY:
The CAPCO executive minutes were Ac
'erol Reporters, Inc.
25 requested from Toledo Edison by Staff and they totaled roughly 4
973 1,
a file drawer and a half, maybe two file drawers.
T l
2' CHAIRMAN FARMAKIDES:
What other category could you 3
identify?
4 MR. LESSY:
I don't know what other categories they 5
have.
6l CHAIR?GN FARMAKIDES :
Well, let's go back to the 7l!
25 file drawers.
Does that include, assuming, Mr. Charno, that 8:
we would take your chart and chart out all of the Department of 9
Justice's requests and the NRC's requests with the first level, 10 seconel level, third level references, fourth and fifth level 11 references -- would those 25 file drawers include all cross-12 references?
13 MR. CHARNO:
Well, they would include our selection 14 from everything produced by Ohio Edison.
15 CHAIRMAN FARMAKIDES:
But that doesn't mean that 16k there aren't additional references that you would like to see 17 from your review of these cross-references?
18 MR. CHARNO:
I'm not sure that I followed you.
I 19 don't believe that's the case.
In other words, what we ended 20 up doing at Ohio Edison is going through every document they 21 produced.
22 MR. BREBBIA:
And scrEhriig Rut what you wanted?
23 MR. CHARNO:
THat't cor a_,ct.
24 CHAIRMAN FARMAKIDES :
Now those 2h.at you have Ac
'eral Reporters Inc.
25 screened out, you have marked with a red tab?'
I
974 1
1 MR. CHARNO:
Yes, sir.
2 CHAIRMAN FARMAKIDES:
And let's assume one of those 3
with a red tab also is cross-referenced to -- or in that file 4
cabinet you have a cross-reference to another document.
Have 5
you also included that other document?
6 MR. CHARNO:
Not unless when we went through it _
appeared on its face to be relevant, in which case we would 8!
have marked that.
I 9
CHAIRMAN FARMAKIDES:
So we actually are talking 10 a net of 25 file drawers?
11 MR. CHARNO:
This would be true only with respect a
12 to Ohio Edison, however, because they are the only ones that 13 did this cross-references system.
We had to go through all j
the documents produced.
1 15 CHAIRMAN FAPlIAKIDES:
How about CEI?
I 16 MR. CHARNO: CEI produced one set of documents for i
I7 the Department and one set for the CILy of Cleveland.
So we 4
i 18 went through only those designated the Department of Justice 19 and AEC Staff.
20 CHAIRMAN FARMAKIDES:
I didn't understand this 21 earlier.
In other words, you're talking only of Ohio Edison 22 Comoany when you're talking of cross-references?
23 MR. CHARNO:
Yes, sir.
The purpose of that chart is 24 Wy we're n@esWg me docceMs hom M o M son.
cm wera Reporters, Inc.
I 25 CHAIRMAN FARMAKIDES:
You had no problems with the t
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I
I 975 i
1 other four?
2 MR. CHAPNO:
Well, we didn't have that problem.
I' MR. BREBBIA:
Enlighten me again, Mr. Charno.
Is it b'
3 1
4 25 file drawers total that you're talking about from everybody?
ij h 4 5
MR. CHARNO:
Yes, sir,
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i 6
MR. BREBBIA:
Okay.
7, CHAIRMAN FARMAKIDES:
And there are no other cross-l 8f references that you have to look at?
i 9
MR. LESSY:
If there are cross-references they are 10 counted.
11 CHAIRMAN FARMAKIDES:
Mr. Charnoff?
t i',
12 MR. CHARN0FF:
Let me first indicate, gentlemen, I
13 that the CAPCO engineering people have examined the plant 14 schedules the last couple weeks in light of a number of circum-stances and IJthink that the new schedules would be pertinent 15j l
16 to your consideration of everything here.
g
' l 17 Taking into account certain financing problems and
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19 the Perry unit, particularly at this moment, and looking at
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21 people have settled on the following best schedule for their 22 units:
The Perry unit which had been scheduled for April 1979
'i 23 and 1980 for units 1 and 2 is now set for June 1980 for unit 1 24 and April 1982 for unit 2, provided that construction is
- + Federal Reporters, Iric.
25 allowed to resume at the site this spring.
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976 8
This results from the fact that the I.pril 1979 date l
l 2
had originally been set based upon commencement of site work 3
this past summer.
As the Board and some other people know, 4
that didn't get started until the fall.
We have now encountered 5
ar ther delay due to a suspension of the -- hopefully a short 6 I su pension of the limited work orders, and as a result, on some s
7 realistic basis, the CAPCO executives now hope and are confi-i 8!
dent that they can meet a mid-1980 date on unit 1.
f 9
i MR. BREBBIA:
Didn't you just say June of 1980?
t i
10 MR. CHARNOFF:
Mid-1980 is June 1980.
II MR. BREBBIA:
You mean mid-year?
I2 MR. CHARNOFF:
Yes.
I'm sorry.
The other plant j
l 13l that's relevant to this proceeding is Davis Besse Unit 1 and i
l 14 that is still scheduled for fuel loading early in 1976 and 15 hopefully will go commercial by June of 1976.
11 I0 So that notwithstanding this new schedule, we are t
II still in some difficulty as we see it with the antitrust 18 review process here unless insofar as Davis Besse is concerned 19 I
the grandfather clause applies, and we have some question as to 20 that, and there's a great dependency upon our commencement or
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recommencement of site work.
If that were to continue to 22 slip, that June 1980 date would be defeated.
23 Now in light of that, the need to get on with this i
l 24 pa ticular proceeding and taking into account that the Justice r
o deral Reporters, Inc.
25 Department and AEC Staf f have collectively expended considerabie 2
i
.l 977 1
time during the last four weeks trying to screen and reduce 2;
the amounts of material that they wish, and as I understand their reduction to 24 file drawers, that's back in the category 3
4 of what Mr. Reynolds and I had assumed last September when we 4
5 had looked at the discovery requests and assumed it would be i
6; in the ballpark of the kinds of discovery requests that had i
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7 been made in other cases where you recall that I believe 1
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8, Farley was about four file drawers and Louisiana about four, and i
.]
I think Duke went up to about 25 -- in light of that reductior; I
9 10 down to 24, in light of our schedule, the Applicants would pr pose to bring in those 24 file drawers to a depository in o
11
- t1 12 our office building.
'}
We will undertake the expense of the transportatior 13 i
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15, as based upon the other cost data that we have given you
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j 163 earlier this week in respcnse to your request for the total ol 500 small file drawers -- we would assume that would exced 17 about S1500.
We will accept that cost.
We would place those 18 19 files in a room on probably the eighth floor of the Bar 20 Building and I hope that it will have adequate 1ighting and 21 adequate chairs.
We wouldn' t want Mr. Lessy to have to sit i
22 on the floor.-
And we would make available Xerox facilities 23 in our offices.
i 24 CHAIM1AN FARMAKIDES:
Off the record.
l
- deral Reporters, Inc.
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25 (Discussion off the record) i 4
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I CHAIR".AN FAPRAKIDES:
Back on the record, i
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2 MR. CHARNOFF:
And we would provide those documents i
3I and have them available and it's our view that having'them f
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available in that central room for a three to four week period
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5 would be consistent with the schedules that have been undertaken 1,
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0 i by these attorneys at our January hearing when they indicated i
i 7l that they could -- certainly Mr. Lessy did -- that they could i
8i review all the documents, had we brought them all in, ina
)
I 9j four to six week period.
And to the extent that we have to i
10 reproduce those documents to bring them in to my offices, the IIj companies would undertake that cost as well.
12 The companies, however, would resist having to 13 reproduce copies to transmit directly to the other parties in l
14' this case because that would be a double reproduction.
The t
15 reason why we will undertake that reproduction in the first j
i 16; case, in one set, would be simply because I,
too, would want 17 those documents available to me, and Mr. Hauser has assured me j
18 that he wouldn't charge me for those particular documents.
19 Now it's our view that bringing them in -- and we 20 will bring them all in in about -- I would say it would take 21 about two weeks, I'm told, to reproduce these documents.
So i
l 22 that we could bring them in and make them available roughly 23' about February 15 or 16, whatever it is, and we would propose u
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3 certainly consistent with the original schedule of the Board i
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with regard to document discovery.
5 CHAIRMAN FARMAKIDES:
Mr. Charnoff, I do understand
(
6 you to say, however, that these documents will be available to 7l not only Justice and NRC, but also the City of Cleveland.
8!
MR. CHAR"OFF:
I hadn't said that, but I will say 9
that.
I am perfectly prepared to have the City of Cleveland 10 examine the Department of Justice and AEC documents that are 11 brought in here.
I'm not proposing to bring in the documents 12 that MELP requested unless they happen to be in the same file l
13 drawers that were requested by the Department of Justice and t
14; the AEC, and I would like to get to the MELP ques tion in a l
I 15 while.
16l MR. RIGLER:
May I ask you a question at this point?
I 17 Where are the depositions going to take place?
18 MR. CHARNOFF:
I don't know.
I would think, as I 19-understood Mr. Lessy, he would have depositions taken in 20 Cleveland, if that's where the deponents are going to be 21 loacted.
I would think that would be where most of them would 22 take place.
23 MR. LESSY:
We haven' t discussed it and we don' t have a position as to the site of depositions,.
24 Are 8ederal Reporters, Inc.
25 MR. RIGLER:
Has any thought been 'given to having i
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some of the depositions where a large part of the documcnts 2l will be examined?
I 3
MR. CHARNOFF:
We are flexible on that.
We really 4
have had no discussions internally or with the other parties 5
as to the site.
i 6
MR. RIGLER:
I'm thinking of the availability of 7l the documents during the depositions.
If you had the deposition l
8 program taking place in the close vicinity of the central I
9:
depository, sometimes that's helpful.
10 MR. CHARNOFF:
The only comment I would make with f
11 regard to the documents, I would assume, sir, that Justice and 12i AEC and MELP, to the extent they wish to visit our offices to 13 look at the same documents -- and they would be welcome to do 14; so -- to the extent they would wish copies of those documents i
15l for their use, we will charge them for those at the 8C a copy ratt l
16l and they may take them with them.
At that point, if they wish e
17ll to v e them for purposes of deposition, I guess they can do it 18 anyway.
We're willing to be somewhat flexible depending upon 19 the convenience of the deponents.
20 We would then think that depositions ought to begin 21 after that month and should take no longer than roughly another 22 month, which, again, would be consistent with the original 23 schedule that we all agreed to and the Board established in 24, this particular proceeding.
Ace F-4rol Reporters, Inc.j 25' We would really disagree quite strongly with the i
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Staff and Justice position that if we mailed the documents to I;
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them that they could do all of their docunent discovery work i'
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3l in 45 days, but if it's locatec in the deposit.ory that they i
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I would need 90 days.
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Now I would like to comment briefly on the MELP 1
6l proposal.
We did receive a letter from one of Mr. Hjelmfelt's o
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i, as'sociates, Mr. Brand, on Wednesday purporting to outline the l
8' categories of, documents that MELP would wish brought here and 1
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those it would not wish brought in here.
We have no way of 10 I
knowing whether or not that results in 60 file drawers or 600 l
11 file drawers, t
12' In effect, the proposal by MELP'would have us do a 13 9reat deel of further file segregation.
It would require us to k
I4 provide samples of certain documents and to note on those 1
t i
15 ll sarples certain information so that they could knou what it is i
e 16,! that the dccument sample purports to represent.
It would, in i
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effect, have us do the discovery work for MELP and we believe, 18 as one of the Board members noted, that MELP had never before 19 requested in its original request that the documents be brought 20 in here, and I would ask that the Board take cognizance of the 21 fact that the City of Cleveland has produced all of two file i
22 drawers in response to our request,that the MELP and the City 23 of Cleveland has large legal staff -- at least three of whom 24 have been familiar with the activities of the Cleveland A-- ' deral Reporters, loc-25; i
Electric Illuminating Company, I am told, in connection with I
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982 1
other matters -- and so I would think that there's no justifi-2 cation for our bringing in additional file drawers to conveniene:
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counsel for the City of Cleveland.
I 4
I will, however, as I indicated, agree to having i
S Mr. Hjelmfelt or his associates review the Justice Department i
6:
files in our particular location.
l 7
I would also point out that the S777 transportation f
8i cost mentioned by "r.
Hjelmfelt, of course, does not include i
i a y duplication cost.
I would also indicate that insofar as 9l n
10 Mr. Hjelmfelt made reference to the Fcrley and Waterford cases 11 that, in total, those cases resulted in about almost four file l
12 drawers for Justice and for the intervenors, and you're talking 13!
about a substantially different number in this particular case.
I 1
(
14 I would like to just briefly comment on some of the 15, observations made by Mr. Lessy and Mr. Charno to the extent II 16 ] that I can.
First of all, the fact that no counsel by Appli-i 17 l cants were present on January 7 was simply in light of the fact that at the prehearing conference it was indicated that that 18 i
19 wouldn't be necessary.
We had tried to have one of the local 20 UUcasel present but they were ccmmitted at that point to other 21 meetings, and I must say, until today, we never heard any 22 particular observation that there was something inappropriate 23 about that.
i 24 Insofar as comments are concerned about the Ohio A" F derol Reporters, Inc.
e 25 Edison cross-references system, I an imoress'cd with the fact
33, i
i 1
that what happened was Ohio Edison did a quite thorough job l
2l of locating documents and identifying just where they would be I
^
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located for each of the parties, and it impresses me'that a 1
4 very thorough job of production was done by Ohio Edison.
5 In any event, our agreement to bring the documents 6:
in seems to me meets the particular observation.
I would note, i
7; however, that Mr. Charno did indicate that a large number of I
8j the document.s were marginally relevant.
If that's true, then i
9l what happened was this particular Applicant took pains to put 10 before the other parties everything that was marginally rele-11 vant, and I must say that we instructed them to do that so that.
12l there would be no cause for anybcdy saying the documents are I
13 missing.
(
14 Now insofar as the allegations are concerned about
.i 1
15, Cleveland Electric not having documents available, to the I
j 16i the best of my knowledge, the CAPCO ninutes are available in i
17 the documents available at Cleveland Electric Illuminating i
18 Company unless they appear in the privileged documents for 19 which privilege was requested.
I don't know that, nor does 20 Mr. Charno, but we have not destroyed any files.
The only 1
21 company that has indicated any files have been destroyed was 22 Ohio Edison and we presented a paper pursuant to the Board 23 order indicating that.
24 I would propose that Mr. Charno wait to see whether A - 5.deral Reporters, Inc.
2S j or not the documents he's alleging are not present are indeed 1
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present either in the files we produced or unless they are in 2!
some other category which are producible subject to the privi-3l lege question.
I 4
I believe that really represents our response to 5
those comments that are worth us putting in any response to I
6l at this point, Mr. Chairman, unless the Board has any questions.
l MR. RIGLER:
Mr. Charnoff, you commented that some 7j 8;
of the CAPCO documents may have been withheld on grounds of i
9 privilege.
Did I misunderstand you?
I 10 MR. CHARNOFF:
What I meant by that 4.s some of the 11l backup documents that Mr. Charno says are not present might 12 very well be within the privileged category of documents -- no:
13; the minutes per se, but some of the backup documents.
I4 MR. RIGLER:
But could it at best only be individua l i
15, member company documents?
Is that correct?
9 16 ll MR. CHARNOFF:
Well, he was addressing himself, 17 sir, as I understand it, to the absence -- and I don't know i
18 '
whether they are totally absent -- but to the absence of back-19 up documents to certain CAPCO executive minutes.
20 MR. RIGLER:
But those would have to be individual 21 m mber company documents, would they not?
e 22 MR. CHARNOFF:
They would be individual member 23 company documents, that's correct, and I believe we're talking 24 about the CEI documents.
Atee 4routeparten, inc.;
25i MR. RICLER:
He also raised a problem of an i
i 1
sas i
1 apparent inability to find executive files.
Would you be abic 2
to work with him on that?
3 MR. CHARNOFF:
I will be glad to work with him. It 4
was our understanding that the CAPCO minutes were provided i
5
.In all of the companies' production.
6 MR. RIGLER:
I thought he was talking then about 7i individual executive files within the CEI organization. Maybe i
I misunderstood Mr. Charno.
9 MR. CHARNO:
No.
You understood correctly.
10 MR. CHARNOFF:
Individual executive files?
I 11 don' t know that they're not produced, but to the extent that 12 there may be some -- and I might point out that there may be i
131 some and they may be in the privileged files.
I point out 14 that Mr. Hauser is an attorney and some of them may be in his 15 confidential files.
161; MR. RIO!.IR :
If they '.nre in the privileged files, 17 thcugh, they would at least be identified to Mr. Charno even 18 though they would not be produced.
19 MR. HAUSER:
Really, I know that we did ask each 20 one of the executives to produce documents responsive to the 21 request of the Department and the Staff and the City of 22 Cleveland.
Ther material there is included in the documents 23 produced.
24 Quite frankly, the number of documents to be a,dederal Reporters. Inc.
25 obtained frca the executives would be very'small in that you l
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found documents at the lower levels of management is perfectly l
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companies is concerned.
I wouldn't anticipate that the execu-i r
4 tives wou13 have very much material at all pertaining to the
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0 MR. LESSY:
May I make a comment?
We didn't find
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Hauser.
i 8
MR-HAUSER:
That's correct.
I 9'
l MR. CHARNOFF:
Mr. Chairman, let me point out that j
2 10 Mr. Hauser's files are indicated in the privileged files and will II be made available.
12 MR. CHARNO:
That certainly doesn't accord with the 13l list of privileged documents that you supplied.
I4 MR. HAUSER:
It said in there, all the files --
15 !
M2. CH.',RUC:
1.11 the files?
O 16 y "R.
ERC27IA:
1 the files respenci're to the I
17 h request is what you're t2.'. king about.
You didn't receive any i
18 of his files.
I9 MR. LESSY:
No, nor from any of the executives from CEI, where, correspondingly, other copies pursuant to the 21 same request we did.
That's the point.
22 CHAIRMAN FARMAKIDES:
Let me understand, Mr. Charnoff.
You indicate now that you feel you could have all the 24 or 25 24 4
1.
file drawers delivered here in the next week or so?
Ac.. detal Reporte s, Inc.
t 25 MR. CHARNOFF:
I would say about two weeks.
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4 i
1 CHAIEDl FAFlGKIDES:
By the 15th of February, and l
2!
you were then suggesting that the Staff of both Justice and l
3 NRC could review those files within a month and then take 4
depositions the second month?
Si MR. CHARNOFF:
Yes, sir.
I 6
CHAIRMAN FARMAKIDES:
Could I hear a response to 7'
that, Mr. Charno?
8, MR. CHARNO:
Yes.
I'd like to hit several different 9
things.
I must admit that I have not adequately looked at the l
101 list of privileged documents.
Let me address that first and II then I will address time.
12 CHAIRMAN FARMAKIDES:
Excuse me, Mr. Charno. I just 13 noticed it's time for all of us to have a recess here.
Let's
(.
I 141 take a ten-minute rccess.
15 (Recess) 16 hl l
CHAIRMAN FAR"aKIDES:
Mr. Charno, we interrupted yct i.
t 17l sir.
.1 18 MR. CHARNO:
If I may, let me address myself first to 19 the list of privileged documents.
The purpose of the list of 20 privileged documents is to provide an ini'ial basis for the c
I i
21 parties and for the master in this case to assess claims of 22 privilege.
Now when you have a large number of documents which 23 happened to be in substantial part executive files, which are 24 not identified specifically and about tihich o specific infor-Ace Federol Reporters, lnc.
25 mation is given, that privileged document list is well nigh I
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I useless with respect to those documents.
2 I would assume that CEI would intend to supplement 3j the privileged document list and give specific information on 1
4 the documents that it is withholding pursuant to an assertion 5
of the claim of privilege.
j 6
With respect to copies, if I may, I'd like to 7:
address a question to counsel for the Applicant.
l 8l CHAIRMAN FARMAKIDES:
Proceed, sir.
1 9
MR. CHARNO:
What is your positior on paying for 10; the cost of copying those documents that the Department and II' the Staff wish to have copied in the central depository?
12 MR. CHARNOFF:
As I had indicated, ve would be glad 13 to do it for you at 80 a page or you can do it yourself.
14' MR. LESSY:
Or we can do it ourselves?
i 15 j, MR. CHARNOFF:
Supply your own paper and labor.
i 16l MR. LESSY: At no charge?
17 MR. REYNOLDS:
You provide the paper and the labor.
I 18 MR. LESSY:
No overhead or cost of the building or 19 lighting?
i 20 MR. CHARNOFF:
The Bar Building is so cheap, Mr.
21 Lessy, there's no overhead.
22 MR. REYNOLDS:
You still have the cost of the 23 Xerox machine.
24 CHAIRMAN FARMAKIDES:
I think the Board understood Ac<
'eral Reporters, Inc.
25 there would be no charge if you gentlemen brought in your
989 I
labor, your ink and your paper.
Let's proceed.
Is that 2
right, Mr. Charnoff?
3 MR. CHARNOFF:
That's right.
4 MR. CHARNO:
With respect to time, the schedule
\\
5 outlinod intially by Mr. Lessy of 45 days from when we 6'
received copies and 90 days if we were going to run a fine 7
screen in Applicants' offices, the offices of their counsel, 8
was put forward as a good faith minimum under the circum-l 9j stances.
10 We have seen the materials.
We are not dealing II with a situation any more where we're talking about 15 file 12 drawers a week with the implicit assumption that over 90 13 percent of it, as we found, is going to be chaff for our
(,
14 purposes.
We are dealing with documents which seem to have 15 direct relevance which are going to have to be screened in 16{
their entirety.
They are going to have to be read through 17 and we feel that 90 days, under those circumstances, is a 18 minimum time necessary for preparation.
19 As to the period depositions should last beyond 20 that, I would say it would be a minimum of 60 days and that 21 might have to be expanded depending upon the nature of actual 22 production once we have gone through it and the extent to 23 which depositions will have to replace documentary discovery.
24 MR. BREBBIA:
Mr. Charno, is this assistance still Ac.
eral Reporters, Inc.
25 available tc you if we establish the central depository to e
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review these documents; that is, staff people trained in this 2
area; or is that only relevant to, as you have just described 3! it, merely a screen of documents to see whether or not of the 4f 15 file drawers a week variety to see whether you would want S
the documents?
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6.
MR. CHARNO:
I think that it is far more relevant
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7 to the rough screening of documents simply because with the S I knowledge of. electric power you can be useful in knowing I
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generally what's going to be required.
When you're talking 10 about educating someone as to a case, you're not going to be I
li t educating that many additional people to the specific fact I
12; situation that they are searching for materials concerning.
13, We could perhaps secure additional people, but it's not going i
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14l to be as extensive as it would have been.
We're going to have 15 l to educate each one in what's going on.
Il 16 ll Ma, cgapNOFF:
"ay I r?k: a ccr.~.cnt en echafule, f
17 Mr. Chairman?
i 16 CHAIRMAN FARMAKIDES:
Yes, sir.
i 19 MR. CHARNOFF:
Maybe this would be constructive.
In light of the new plant schedule and in light of the fact that 20 k
21 that new plant schedule means that reserves in the CAPCO area 22 can be way down from where they were supposed to be, in the 23 neighborhood of 11 to 12 to 13 percent as compared with the 24 20 percent that at least one licensing board,and the FPC deter-A.- 'deral Reporters, Inc.
25! mined to be the right level, I would like to propose the i
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eme.
.l 391 i
1 following:
We could relax on scheduling in light of the fact 2!
that all of the parties here are presumably in f avor of letting 3
the plant get en the line.
I uould suggest tha t if each of I
4' the parties here would stipulate to the issuance of the con-l 5
struction permit.
6 MR. LESSY:
I object, sir.
We are antitrust counsel 7
CHAIRMAN FARMAKIDES:
Let the man finish, Mr. Lessy.
8, MR. CHARNCFF:
But stipulate to the issuance of I
9l the construction permit for Perry and the operating license 10!
for Davis Besse Unit 1.
When the other proceedings regarding I
i 11l s fety and environmental matters are concluded, subject to the a
i 12j subsequent issuance of conditions to that construction permit l
13l and that operating license based upon the outcome of this par-1 I
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14!
ticular proceeding, then it seems to me we could relax on the 15 schedule to provide the time that Justice needs.
I think we 16 ij are committed to ging anead with the hearing on some sort of 17 reasonable schedule in any event.
The public interest would be 18 served by non-delay in the plants.
The MELP, if they're 19 interested really in access to that plant, certainly has an 20 interest in having the plant on the line. Certainly the AEC 21 Regulatory Staff so far has taken the position that there's a
~
22 need for power from the plant.
I 23' I'm not asking AEC to waive any of its envi ronmental 24 or safety reviews on any of those plants and, to the ' ee of AceJ.J.rol Reporters, Inc.
25j my knowled e, the Department of Justice is not opposoc une 9
9 71-I construction of the Perry plant or the operation of Davis Bessc 2;
Unit 1.
I 3!
I would respectfully submit that now we're-on track I
4 for a schedule that would lead to a hearing perhaps this fall 5l or at latest this winter, no one will be deletory in that i
t 6l regard.
The public interest could well be served by such a 7l stipulation and we would not have a quibble over 30 days versur 8 i, 90 days.
We could agree to the 90-day concept under those
!i
-9 'i circumstances and it seems to me we could remove that terrible 10, pressing public interest on having the plant on line on some I
11!
reasonable schedule from intruding into this particular pro-12 ceeding.
13 MR. LESSY:
May I make a motion, sir?
I'd like to I
(
141 move that that whole statement be stricken from the record as 15 not relevant.to this proceeding.
We're talking about substan-N 16 tiVe issues that none of us are familiar with.
We're talking j r
17 li about other proceedings that I have read press releases on in 5
18 fron of the Chairman and other members of another panel.
I 19 think December 2 was the due date for production.
The Chairmar.
20 has seen what we have had to go through in five cities and we 21 need three months I think to review those documents, and I hate
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22 to even get near matters beyond our expertise.
I frankly 23 didn't understand anything Mr. Charnoff said.
24 MR. CHARNOFF:
We're not going beyond his --
AceNerol Reporters, Inc.
I 25 CHAIRMAN FARMAKIDES:
Excuse me, Mr. Charnoff.
l E
f92 Mr. Lessy, we're not going to strike.
What it tas was an offer, 2
as I understand it, on the part of the Applicant to join in 3
whatever time frame you all want provided you then stipulate 4
as to the matter that he suggested, and that is the construc-5' tion permit for Perry.
Now what's your response to that, Mr. Charno or Mr. Lessy or "r.
Hjelmfelt?
I 7
MR. CHARNO:
I think we can state with completc 8!
c-j irmness tha.t the Department will not so stipulate.
It ill 1
9l behooves one representing the public interest to flaunt the 10 Congressional vill and the explicit provisions of the statutory 11 scheme in the manner suggested by counsel, and we will not do 12 so.
13 MR. CHARNOFF:
Mr. Chairman, may I say --
14 i
CHAIRMAN FARMAKIDES:
Excuse me, Mr. Charnoff.
i 15 "R.
LESSY:
The ctatute requires prelicensing anti-l 16 i L
trust rmrie", if that's '1 hat is requi rod.
We are unwilling to 17 stipulate.
I think it's unfair to bring up that kind of offer 18 without advising us ahead of time because we're unprepared to i
address it.
I think that the Applicants' tactics here on 20 discovery have caused a delay in this proceeding.
I think 21 that the Board will require that we were not advised until the 22 final date after documentary discovery was completed that they 23 were unwilling to produce and deliver as requested.
24 Ace f.Jeral Reporters, inC.
25i an essential non-compliance with the Board's order of i
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I privileged documents and a motion for protective order was 2l made almost six weeks after the period the Board scheduled t
3l' for completion of documentary discovery was due, and we 4
absolutely object to it and we are unwilling to stipulate to 5
it.
I agree with the Department's time frame, as stated by 6
Mr. Charno about ten minutes ago.
7 CHAIPMAN FAPl1AKIDES: Mr. Hjelmfelt?
8 MR. HJEDIFELT :
The City of Cleveland is not pre-9 pared to enter into such a stipulation.
We allege that the 10 !
operation of the Davis Besse without suitable licensing pro-11 visions will maintain a situation which is inconsistent with 12l the antitrust laws and detrimental to the municipal electric I
13l light and power plant of the City of Cleveland.
We would not i
I I4' be eager to stipulate that that plant go into operation until 15 ve e.re protected.
l!
i 1611 Furthermore, with respect to the public interest I
i 17f of the area of the City of Cleveland in the CAPCO area, if I8 indeed reserves in this area of the country are going to be 19 in the nature of 11 or 12 percent and if indeed there is 20 going to be a shortage of power in this area, then I would 21 submit that a very appropriate way to alleviate this situation 22 and perhaps conclude this entire hearing would be for the 23 Applicants to agree now to stipulate that they are willing to 24 enter into agreements with the City of Cleveland for third 4
- 0. deral Reporters. Inc.
25 party of Wheeling, which would bring an influx of 30 megawatt s i
l I
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995
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1 of power into the City of Cleveland and help redace the need 2
of the public for this power.
3 CHAIRMAN FARMAKIDES.
So that we htve two offers 4
now, gentlemen.
5 MR. CHARNOFF:
Mr. Chairman, may I observe with 6
regard to the remarks of Mr. Charno and Mr. Lessy, that the 7l Atomic Energy Commission in its Waterford decision -- I can't i
8;I site it right now -- clearly contemplated that a construction
~
1 9
permit could issue in an antitrust case provided all the 10 parties stipulate to it.
I didn't create something neu in my lij particular proposal.
It was created and suggested by the I
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12 {>Atomic Energy Commission and to the extent that the Staff still I
l 13: works for the Nuclear Regulatory Commission they ought to exami ne l
(
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- that particular footnote in the Waterford decision.
I believe 15, it was last September.
Ar.f they cught to decide whether or not 1611 the oublic interest is really coing to be served b'1 hering a 17 decision on this case which will be rendered presumably some I
18 ' time this year or early next year affect the availability of 19 those power plants.
I can do no more.
20 CHAIRMAN FARMAKIDES:
Mr. Charnoff, as one member 21 of the Board, I agree with that; but let me also say, sir, that 22 I think Mr. Hjelmfelt's offer was also responsible.
In other 23 words, what I'm saying in essence is that I consider your offer 24 to be a responsible offer made on the record.
I consider that Ace'
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i 25' of Mr. Hjelmfelt to be equally responsible.
Now I don't, i
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2 996 I
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j however, feel that Justice or the NRC is bound to accept that 2
j offer by reason of any decision.
I think that they have to act t
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in what is in their best interest, which is, of course, the 4
public interest.
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I do feel, however, sir, that you could have made 6
that offer perhaps prior to this occasion, priot to meeting of t
i 7l counsel, to allow them the opportunity of digesting and con-l 8l sidering the offer, and I think that may be one of the problems 9
here.
10 I do know of the decision that you refer to and, IIf very frankly, I was involved in that decision and certainly we i
12 did contemplate the needs of that part of the country, the t
13 ! power needs, and we did reach the conclusion that you articu-Id i lated.
That conclusion is a conclusion of the Nuclear Regula-i 15 ! tory Cetmiscion, not the Socrd that issued it.
It went all the il 16 4way up.
So it is nor a final det:rminatio.n.
17 But I would feel that this type of offer can better I
l 18 he explored by you and perhaps can be better explored by the j
19 parties in a private negotiation between you and perhaps you i
20 could do so immediately after our session today, but I do think, 21 gentlemen, all counsel, that those are two offers, both of them
- 22. responsible.
Perhaps you can compromise and reach an agreement 23 between you, l
24 Let's go back to ?k. Charno.
Did you have anything b ?ederal Reporters. Inc.
25 else, sir?
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1
997 I
MR. CHARSO:
No.
2 CHAI?lGN FAR'GKIDES :
Were you finished?
I i
3 MR. CHARUO:
Yes, I was.
I t
i 4
CHAIRMAN FAR'GKIDES :
Mr. Lessy?
i 3
MR. LESSY:
Except to say, sir, that we support 6; the time frane suggested by the Department of Justice and that 7! we acceot the crocosal by the Applicants as far as Xeroxing is 8; concerned.
That is, if we supply the paper, ink and lcbor, i
9i there will be no charge for copies.
10 CHAIRMAU FARMAKIDES:
Mr. Hjelmfelt, anything else, 11 sir?
12 MR. HJELMFELT:
Yes, sir.
First, I would like to 13 q suggest that Applicants have indicated that proceeding on the o
l
'[
14 :libasis of cur selection of categories of documents and a method 15, of narrowing our document request and reducing the number of 1
16;1 documents prcduced in Washington would put the burden on tham i
17 l0f performing our discovery.
We would be willing to have a man I
I 18 in Cleveland or any of the cities on Monday to start undertaking l
19 to designate the documents now in a fashion similar to the 20 Staff and the Department did.
This of course would also be a f
21 method of eliminating any duplication in that we would identify 22 the duplication as we went along, marking the da-uments we i
23 desired.
The City of Cleveland would also be willing to parti-l 24 cipate in sharing the expenses of transportation from the cities Ar.* e.'deral Reporters, Inc,l to the City o f Washington 25!
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998 I
CHAIRMAN FARMAKIDES:
What does that maan, sir?
4 2
MR. HJELMFELT:
We would be willing to pay the REA 3
costs for the transportation, the S777 or thercabouts, i
l 4
MR. BREBBIA:
For the 60 filec?
f 5
MR. HJELMFELT:
For the 60 files.
We think we're i
j.
i 6
making a high side estimate with 60 files.
We would anticipate 1
I 7l that it would be less than 60 files, but without being in a I
i 8'
position to make an actual measurement we wanted to give the l
9' Board the high figure.
I 10 CHAIRMAN FARMAKIDES:
All right, gentlemen.
11 Mr. Charnoff, anything else, sir?
12 MR. CHARNOFF:
I'd only say if MELP wishes to pay for 13 the cost of freight and reproduction of the documents and send
(
l 14 their man out there next week, we will be glad to reproduce it I
15, at their expense and send it in at their expense.
I see no l,
16ii rearcn why the City of Cleveland shculd be a beneficiary cf the l
171 payers of the Cleveland utility company.
If they're going to 18 - have a man out there next week, that man could go out there and l9 do the document work that he has to do.
He can determine which 20 documents he wants and they could be reproduced at their expense 21 and he could have their copies.
22 As far as Mr. Charno's statement that he needs 90 23 days to digest the particular contents of our documents, once 24 he determines he wants a particular document he could have it r.i ferol Reporters, fec,l 25! reproduced at his cost and he could take it with him and digest i
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'iit as long as he wishes.
But I don't see the need for 90 days l
s 2 lon this kind of matter when for a far larger set of documents 3
they were prepared to do this matter in a far chorter period.
4 MR. LESSY:
That was before we had seen he documents 5
CHAIRMAN FAR'iAKIDES:
Mr. Charno, anything else?
i 0
MR. LESSY:
The previous time frame we gave on 7
January 3rd was before we had seen the documents.
8; CHAIRMAN FARMAKIDES:
Mr. Hjelmfelt?
9 MR. HJELMFELT:
I would merely state what I had in i
10!-
of course, is l
mind in going out and marking the documents now, 11 l:merely the segregation by categories which we would perform, i
12' certainly not the full reading of the documents which would be 1
(.
l done eventually and, secondly, with respect to reproduction 14' costs, I think throughout this proceeding the costs of repro-15 ll du'cing theco documents have been greatly exaggerated because of n
16 4the numercur cccccions on which nurcrcur cenies of the decurentd 17l
' are already in existence and that there's no reason for any l
18 !
party to incur a cost now of reproducing an additional copy of i
s 19 some of these documents.
I CHAIRMAN FARMAKIDES:
Anything further, Mr. Charnoff?
l 21 l
MR. CHARNOFF:
No, sir.
22 CHAIRMAN FARMAKIDES:
All right.
The Board is going 23 to discuss this at the bench for just a few minutes.
Bear with 24
~
us.
ierol Reporters Inc.
25 (Bench conference) s I
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1000 1
CHAIRMAN FARMAKIDES:
I think the Board is prepared 2' to rule on the record and we will follow this thing up with a 3
prehearing conference order.
t 4
The Board then, in agreement with the offer made by Sl. the Applicant and accepted by the Department of Justice and the 6
NRC Staff, the Board does hereby order the establishment of a 7
document depository established at Applicants' councel's office h
8]TheApplicantswillproduceupto25filedrawersasrequested il 9! by the Department of J stice and the Nuclear Regulatory 1
10' Commission Staff, the documents to be forwarded to that deposi-11 tory as quickly as possible, hopefully by February 10, 1975.
12l The entire production of 25 file drawers will be l
13!
made by February 15.
The Board would expect that at least 14 half of those documents will be there by February 10.
j 15 The depositions may then commence April 7, 1975, and 16 1 the focuments depository till r2 main in enistence throughout l
17 [ the depccitions.
18 As to the City of Cleveland, the City may request 19 production of documents up to 60 file drawers to be placed in 20 the document depository that we have just identified, at the 21 City's transportation expense.
The Board would expect that 15 22 drawers per week, commencing February 10, will be so placed in 23 the depository.
The City must also be prepared for its depo-24 sitions by April 7, 1975.
d,
,rol Reporters, Inc.
25 The Board will then review the progress at a l
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1001 4
1l prehearing conference that we are now tentatively setting for I
2 April 23, 1975.
Other hearings might arise in the interim as i
3-necessary.
4 Now one thing that we would not only urge but we i
{
5 now direct the parties to discuss these discovery problems i
6 with each other. Any discovery problem that ensues should be 7
discussed with other counsel, all counsel, before any remedy 8,
is requested of the Board.
We can anticipate a lot of house-i 9
keeping chores and a lot of relatively minor administrative 10 problems arising by reason of discovery.
I think you all know 11 this, but it would seem to us that the basic rule is talk to t
12' each other first.
If you come to us with a motion for relief l
13 without having exhausted first the opportunity of talking to l
I4 each other and hopefully resolving the issue, we will consider 1
]
15 this in granting or denying the motion.
16 lj l
4 1
Any quest.4 7ns, gentlemen?
i 17 MR. LESSY:.One~of the points that Staff made this 4
18 morning was we asked for three provision -- or descriptions I9 being made with respect to the document depository if it were 20 established by the Board.
Just briefly, one, that the deposi-e to y be adequately lighted, etc., and have adequate Xerox 21 r
22 facilities; second, that the government have unrestricted 23 access during normal business hours; and third, that the pro-i 24 duced material shall remain intact and shall not be moved or I
Ac' eral Reporters, Inc.
25 removed from the Board except pursuant to Board ruling.
O
,.--.._s 7 -,
to o t-i I
So we would like to hope that the Board would consider proposing these for the convenience of counsel.
2 i
3 CHAIPMAN FARMAKIDES:
Mr. Charnoff?
We will agree to those, obviously.
MR. CHAR::OFF:
4 5
CHAIRMAN FARMAKIDES:
You will agree to that?
l 6
MR. CHARNOFF:
Certainly.
7 CHAIRMAN FAR*4AKIDES :
Anything else, sir?
e 8
MR. CHARNOFF :
Yes, sir.
On the MELP matter, I'm l
unclear as to whether the Board has decided the cost of 9'
duplicating the materials and bringing them in here for MELP 10 inspection is on the Applicant or is on MELP?
II CHAIRMAN FARMAKIDES:
Sir, the only expense that 12 i
we have assigned to the City of Cleveland is the transporta-13 j
14 tion of the file drawers here.
If there's any duplication We do not 15 necessary the Applicants will bear that cost.
N if any, i anticipcto there uculd be much need for duplication, 16 g
especially in view of the fact that we have asked that only 17 i
18 15 file drawers per week be delivered.
l 19 MR. CHARNOFF:
I had a second question, sir.
We e
i l
do not know which drawers MELP wants in that we really have 20 I
not had the documents in the same manner that Justice has.
21 Thatisaresponsibilityofl 22 CHAIRMAN FARMAKIDES:
How soon can the City of Cleveland, sir, and Mr. Hjelmfelt.
23 t
24 you do that, sir?
l I
e-Federal Reporters. Inc.
25 MR. HJELMFELT:
We will commer)ce on Monday, Your Honor.
~
. =.
1003 1
MR. RIGLER:
If he doesn't start to d2signate until P
2 Monday -- it's going to take Mr. Hjelmfelt some time to desig-
]
3 nate those drawers, and I don't. see how the Applicant can 4
possibly get them here by the 10th.
5 CHAIRMAN FARMAKIDES:
Let's say that you two gentle-i 6
men work that out between you.
If you cannot, and after you i
7j have talked to each other to see if you can resolve this, I
come back to us.
8 9
MR. CEARNOFF:
As long as we have a reasonable 10 time, I'm sure we can work it out.
11 CHAIRMAN FARMAKIDES:
Certainly, you have ample 12 time before April 7 to in fact review all those documents, 13 Mr. Hjelmfelt.
14 Anything else, gentlemen?
15 MR. CHARNOFF:
Yes, sir.
I'm sorry.
I'm puzzled.
0 16 !) I do understand that the 15 drawers for MELP are to be here I
171 for one reek and then they are returned?
18 CHAIRMAN FARMAKIDES:
That's something else we would 19 like you two to work out, if possible.
From the point of view 20 of the Board, we do not feel that those drawers should be kept i
21 here throughout titc en*iro period of time.
Now if it's con-22 venient for both of you to keep them here for two weeks rather 23 than one week, or three weeks, I think you should do it.
24 MR. CEARNOFF:
We begin to run into the reproduction AsJ rol Reporters, Inc.
l 25 Problem.
t I
I, I
1004 I
i CHAIRMAN FARMAKIDES:
I don't see, si, -- I was out j
i 2l there and I looked at your files.
I just don't see the repro-i 3l duction problem that you have teen talking about.
I don't see i
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4j lt.
I went both to Ohio Edison and I went to CEI.
I agree l
5l with the other parties.
If there is a reproduction problem, i
6; it's a very minimal one.
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MR. CHARNOFF:
Well, let us examine it, but I do r
8:
understand we're not obliged to keep the MELP files here i
9; throughout the deposition period the same way as we are the 4
10; others.
i i
i 11 CHAIRMAN FARMAKIDES:
That's correct.
But, again, i
12i I would hope that you would talk to the City of Cleveland to I
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see if you can' t both come up with an agreeable solution to tha I
i 14 l particular problem.
We don' t see it as a very serious problem.
4 15 b Anything else?
I i
16 ll MR. CHARNOFF:
I take it at the Acril 23 conference i
t l'
i 17 l we will have some discussion of termination of deposition 18 period.
19 CHAIRMAN FARMAKIDES:
Yes, sir.
That's primarily 20 the reason for that particular conference.
21 MR. LESSY:
And size of depositions, sir?
i 22 CHAIRMAN FARMAKIDES :
Yes.
There may well be some 23i need for conference before that.
We hope that you will talk 24 to each other and resolve these matters.
It's taking too much A
der 21 Reporters. Int-l 25 time of all of us and it's not necessary.
i f
I l
1
1005 Is there anything alse?
e l
2j (No response) i 3;
Gentlemen, I will see you then en April 25 and by 4
that time I hope we have a set schedule fixed.
Thank you very i
5!
nuch.
6 1 (Whe reupon, at 11:40 a.m.,
the prehearing 7, conference was adjourned.)
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