ML19329D338
| ML19329D338 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 02/25/1977 |
| From: | Lessy R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8003050911 | |
| Download: ML19329D338 (6) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COPHISS 1
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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THE TOLEDO EDISON COMPANY and
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NRC Docket Nos.J50'-346A )
THE CLEVELAND ELECTRIC ILLUMINATING )
50-500A COPFANY
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50-501A (Davis-Besse Nuclear Power Station, )
Units 1, 2 and 3)
THE CLEVELAND ELECTRIC ILLUMINATING )
NRC Docket Nos. 50-440A COMPANY, ET AL.
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50-441A (Perry Nuclear Power Plant,
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Units 1 and 2)
)
ANSWER OF NRC STAFF TO MOTION OF DEPARTMENT OF JUSTICE FOR AN ORDER REQUIRING SUBMISSION OF AFFIDAVITS PRIOR TO ORAL ARGUMENT AND FOR REOPENING OF DISCOVERY By motion dated February 23, 1977, the Department of Justice moved the Appeal Board to (i) require submission of affidavits prior to oral argument on Applicants' " Motion to Stay Pendente Lite The Attachment of Antitrust Conditions," and (ii) reopen discovery on data underlying affidavits when filed. The Department's motion follows the Appeal Board's Order of February 15, 1977 which, inter alia, requested counsel to be prepared to address, with particularity at oral argument on March 9,1977, the ir-reparable injury, if any, which Applicants or others may suffer as a result of the stay, or the denial of a stay, of antitrust conditions ordered pursuant to the initial decision (antitrust) below. Co6nsel was also asked to be prepared to address with particularity public interest con-siderations, and the details of any interconnections which would be required pursuant to the initial decision. In Supplementary Remarks, l
Mr. Sharfman indicated that 10 CFR 2.730 (b) and (c) contemplate 1
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the use of " affidavits or other evidence" in support of motions or answers.
The Department asserts in its motion that unless it is able to examine in advance of argument Applicants' affidavits and record citations, it will be unable to reply meaningfully to such authorities at argument. The Depart-ment also asserts that in order to respond to Applicants' affidavits it will require discovery of the underlying data and analyses. The Department requested the submission of affidavits, underlying data, and record citations on }tarch 2,1977.
On February 24, 1977, the Appeal Board informed the parties that it desired responses to the Department's motion by February 25, 1977.
Inasmuch as all parties are familiar with the evidentiary record, and the undertakings eventually ordered by the Board such as " meaningful access" to nuclear units, transmission services, reserve sharing, and other such matters were the subject of both factual and expert testimony during the evidentiary hearing, it is the Staff's position that the parties should solely rely on evidence of record to support their arguments. That would obviate the need for both re-opening discovery and filing affidavits while providing "other evidence" as contemplated oy 10 CFR 5 2.730.
Accordingly, it is the Staff's position that the Department's motion be denied but that in order to afford the parties an opportunity to prepare If New interconnections necessitated by the license conditions were not dis-cussed at the hearing except for the principle of apportioning the costs of interconnections. New interconnections may not be necessary if Appli-cants are correct in their renewed motion that there are no isolated electric entities in the CCCT. As to the use of affidavits in this pro-ceeding, cf. Department's Motion pp. 3 and 4 with Applicants' response, p. 3, n. 'E 9
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3-such record citations in lieu of affidavits, the Staff would also propose that the parties exchange record citations on Friday, March 4,1977.
Respectfully submitted, w * '! ),
Roy[.Lessy,T.7 Counsel for NRC Staff Dated at Bethesda, Maryland this 25 the day of February 1977.
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UNITED STATES OF AMERIC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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THE TOLEDO EDISON COMPANY and
)
NRC Docket Nos. 50-346A THE CLEVELAND ELECTRIC ILLUMINATING )
50-500A COMPANY
)
50-501A (Davis-Besse Nuclear Power Station, )
Units 1, 2 & 3)
THE CLEVELAND ELECTRIC ILLUMINATING )
NRC Docket Nos. 50-440A COMPANY, ET AL.
)
50-441A
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(Perry)NuclearPowerPlant, Units
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1&2 CERTIFICATE OF SERVICE I hereby certify that copies of ANSWER OF NRC STAFF TO MOTION OF DEPART-MENT OF JUSTICE FOR AN ORDER REQUIRING SUBMISSION OF AFFIDAVITS PRIOR TO ORAL ARGUMENT AND FOR REOPENING 0F DISCOVERY in the above-captioned proceeding have been served on the following by deposit in the United Staes mail, first class or air mail, or as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 25th day of February 1977 Douglas V. P.igler, Esq.
Atomic Safety and Licensing Chairman, Atomic Safety and Board Panel Licensing Board U.S. Nuclear Regulatory Commission Foley, Lardner, Hollabaugh Washington, D.C.
20555
- and Jacobs 815 Connecticut Avenue, N.W.
Docketing and Service Section Washington, D.C.
20555 Office of the Secretary U.S. Nuclear Regulatory Commission Ivan W. Smith, Esq.
Washington, D.C.
20555
- Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Joseph J. Saunders, Esq.
Melvin G. Berger, Esq.
Washington, D.C.
20555
- Janet R. Urban, Esq.
John M. Frysiak, Esq.
Antitrust Division Atomic Safety and Licensing P.O. Box 7513 Board Washington, D.C.
20530 U.S. Nuclear Regulatory Commission t
Jerome Saltznan, Chief Washington, D.C.
20555
- Nuclear Reactor Regulation John Lansdale, Esq.
Antitrust and Indemnity Group Cox, Langford & Brown U.S. Nuclear Regulatory Commission l.
21 Dupont Circle, N.W.
Washington, D.C.
20555
- Washington, D.C.
20036 l
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i Reuben Goldberg, Esq.
Terence H. Benbow, Esq.
David C. Hjel'nfelt, Esq.
A. Edward Grashof Esq.
Michael D. Oldak, Esq.
Steven A. Berger, Esq.
Goldberg, Fieldman & Hjelmfelt Steven B. Peri, Esq.
1700 Pennsylvania Avenue, N.W.
Winthrop, Stimson, Putnam & Roberts Suite 550 40 Wall Street Washington, D.C.
20006 New York, New York 10005 Vincent C. Campanella, Esq.
Thomas J. Munsch, Esq.
Director of Law General Attorney Robert D. Hart, Esq.
Duquesne Light Company 1st Assistant Director of Law 435 Sixth Avenue City of Cleveland Pittsburgh, Pa.
15219 213 City Hall Cleveland, Ohio 44114 David Olds, Esq.
Reed, Smith, Shaw & McClay Union Trust Building Wm. Bradford Reynolds, Esq.
Box 2009 Robert E. Zahler, Esq.
Pittsburgh, Pa. 15230 Jay H. Bernstein, Esq.
Shaw, Pittman, Potts &
Lee A. Rau, Esq.
Trowbridge Joseph A. Rieser, Jr., Esq.
1800 M Street, N.W.
Reed, Smith, Shaw & McClay Washington, D.C.
20036 Madison Building - Rm. 404 1155 15th Street, N.W.
Frank R. Clokey, Esq.
Washington, D.C.
20005 Special Assistant Attorney General Edward A. Matto, Esq.
Room 219 Richard M. Firestone, Esq.
Towne House Apartments Karen H. Adkins, Esq.
Harrisburg, Pa. 17105 Antitrust Section 30 E. Broad Street,15th Floor Donald H. Hauser, Esq.
Columbus, Ohio 43215 Victor F. Greenslade, Jr., Esq.
William J. Kerner, Esq.
Christopher R. Schraff, Esq.
The Cleveland Electric Assistant Attorney General Illuminating Company Environmental Law Section 55 Public Square 361 E. Broad Street, 8th Floor Cleveland, Ohio 44101 Columbus, Ohio 43215 Michael M. Briley, Esq.
James R. Edgerly, Esq.
Roger P. Klee, Esq.
Secretary and General Counsel
-Fuller, Henry, Hodge & Snyder Pennsylvania Power Company P. O. Box 2088 One East Washington Street Toledo, Ohio 43604 New Castle, Pa.
16103 Russell J. Spetrino, Esq.
Paul M. Smart, Esq.
Thomas A. Kayuha, Esq.
Fuller, Henry, Hodge & Snyder Ohio Edison Company 300 Madison Avenue 47 North Main Street Toledo, Ohio 43604 Akron, Ohio 44308
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Alan P. Buchmann, Esq.
Squire, Sanders & Dempsey 1800 Union Comerce Building Cleveland, Ohio 44115 Alan S. Rosenthal, Esq., Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comission Washington, D.C.
20555
- Richard S. Salzman,.Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comission Washington, D.C.
20555
- Jerome E. Sharfman, Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comission Washington, D.C.
20555 m
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' 'A M R'oy P/ Lessy, Jrg //
Counsel for NRC Staff l
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