ML19329D402
| ML19329D402 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 02/24/1977 |
| From: | Douglas M, Goldberg R, Hjelmfelt D CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8003050990 | |
| Download: ML19329D402 (8) | |
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7 UNITED STATES OF AMERICA e....
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S NUCLEAR REGULATORY COMMISSION w.,
C' Before the Atomic Safety and Licensing Aeoeal Board In the Matter of
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The Toledo Edison Company and
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Docket NosG0-344A?
The Cleveland Electric Illuminating )
50-500A Company
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50-501A (Davis-Besse Nuclear Power Station )
Units 1, 2 and 3)
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The Cleveland Electric Illuminating )
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)
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c1.94-77 ANSWER OF CITY OF CLEVELAND TO DEPARTMENT OF JUSTICE MOTION TD REQUIRE SUBMISSION OF AFFIDAVITS PRIOR TO ORAL ARGUMENT In its Order of February 15, 1977, the Appeal Board set for hearing Applicants' Renewed Motion for a stay of license conditions, permitted Applicants to file a supplemental memorandum addressed to the issue of the Appeal Board's power to condition a sta7 of license conditions, and directing counsel to be prepared to address three specific issues during oral argument. In supplementary remarks, Mr. Shariman cautioned counsel that attorney's representations would not be sufficient to establish factual matters and that factual assertions should be supported by affidavits or citations to the record. On February 23, 1977, the Department of Justice RT t
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2-filed its motion to require that all affidavits and record citations to be relied upon be submitted by March 2,1977, and that disecvery be reopened to test affidavits filed. Subject to the following comments, the City of Cleveland (City) supports the Department's motion.
Under the Appeal Board's order, Applicants are authorized to file only one more piece of paper--a supplemental memorandum addressed to the authority of the Appeal Board to condition the grant of a stay upon some undertaking, such as the posting of a bond. Since this is an issue addressed in Applicants' Renewed Motion (p. 20) any affidavits relevant thereto should have been submitted at the time of filing the Renewed Motion. To the extent that the Appeal Board considers this a new issue raised by the Board, Appli-cants' affidavits should be filed by March 2,1977.
With respect to the three issues which the Appeal Board directed counsel to be prepared to address in oral argument, each of those issues is among the criteria established by Virginia Petroleum Jobbers. Applicants have had two opportunities to file affidavits and make record citations in sup-port thereof. Mr. Sharfman's supplemental remarks announce no new law.
Applicants, having twice failed to file affidavits in support of their motion, should not be given yet another bite at the apple. This is particularly true where the time schedule established by the Board does not provide for a round of reply affidavits as required by 52. 730 of the Commission's rules.
The only specific issue which may be deemed to have been raised by the Appeal Board is the request that the Board be advised whether the
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license conditions would necessitate any new physical interconnections and, if so, where, when, at what cost and by whom would these interconnections have to be furnished. City believes that it is only on this issue that Appli-cants should, under the Appeal Board's order, be granted an opportunity to submit affidavits.
Paradoxically this issue is one which least lends itself to resolution by untested affidavits. First, the nature, location, timing and size of any new interconnections will depend on the extent to which any entity elects to utilize the rights accorded by the license conditions. Second, the nature, location, timing and size are to a large degree a matter subject to negotiation. Third, the nature, location, timing and size of such intercon-nection may be determined by the long-range planning of either or both par-
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ties to the interconnection totally unrelated to the license conditions (Tr.
10,010,10,066, DJ 579 pp. 43-47, DJ 580 pp. 21-34). Fourth, payment for the capital costs of interconnections is also a manner of negotiation with costs usually apportioned upon an assessment and apportionment of the benefits of the interconnection. Acc.ordingly, affidavits on this issue must be predicated upon opinion, assumption, and speculation. Without an opportunity to lay bare the frailties of such affidavits, City will be prejudiced.
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I Wherefore City prays that Department of Justice's motion be granted subject to the limitations discussed herein.
Respectfully submitted, r~
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Reuben oldber David C. Hjelmfelt Goldberg, Fieldman & Hjelmfelt, P. C.
1700 Pennsylvania Avenue, N. W.
Washington, D. C.
20006 Telephone (202) 659-2333 Malcom C. Douglas Acting Law Director Robert D. Hart First Assistant Director of Law City of Cleveland 213 City Hall Cleveland, Ohio 44114 Telephone (216) 694-2737 Attorneys for City of Cleveland, Ohio February 24, 1977
W'rEn CORREE Dtprpe j
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CERTIFICATE OF SERVICE 8
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I hereby certify that service of the foregoing " Answer of City of Cleveland to Department of Justice Motion to Require Submission of Affi-davits Prior to Oral Argument" has been made on the following parties listed on the attachment hereto, this 24th day of February,1977, by depositir.g copies thereof in the United States mail, first class postage prepaid.
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David C. gfelmf t Attachment
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ATTACHMENT Christopher R. Schraff, Esq.
Douglas V. Rigler, Esq.
Assistant Attorney General Foley, Lardner, Hollabaugh and Jacobs Environmental Law Section 815 Connecticut Avenue, N. W.
361 East Broad Street, 8th floor Washington, D. C.
20006 Columbus, Ohio 43215 Alan S. Rosenthal, Chairman Ivan W. Smith, Esq.
Atomic Safety and Licensing Appeal Board John M,. Frysiak, Esq.
U. S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D. C.
20555 U. S. Nuclear Regulatory Commission Wa shington, D. C.
20555 Richard S. Salzman Jerome E. Sharfman Andrew C. Goodhope, Esq.
Atomic Safety and Licensing Appeal Board 3320 Estelle Terrace U. S. Nucicar Regulatory Commission Wheaton, Maryland 20906 Washington, D. C.
20555 Robert M. Lazo, Esq., Chairm:.n Howard K. Shapar, Esq.
Atomic Safety and Licensing Board Panel Executive L2 gal Director U. S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Daniel M. Head, Esq., Member Mr. Frank W. Kara s, Ch,!ef Atomic Safety and Licensing Board Panel Public Proceedings Branch U. S. Nuclear Regulatory Commission Office of the Secretary Wa shington, D. C.
20555 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Atomic Safety and Licensing Appeal Board Panel Abraham Braitman, Esq.
U.S. Noclear Regulatory Commission Office of Antitrust and Indemnity Washington, D. C.
20555 U. S. Nuclear Regulatory Commission Washington, D. C. ~ 20555 Joseph Rutberg, Esq.
Jack R. Goldberg, Esq.
Frank R. Clokey, Esq.
Office of the Executive Legal Director l
Special Assistant Attorney General U. S. Nuc1 car Regulatory Commission l
Towne House Apartments, Room 219 -
Wa :5hington, D. C.
20555 l
Harrisburg, Pennsylvania 17105 Benjamin H. Vogler, Esq.
Edward A. Matto, ' Esq.
Roy P. Le s sy, Jr., E sq.
Assistant Attorney General Office of the General Counsel Chief, Antitrust Section R e gulation 30 East Broad Street, 15th floor U.S. Nuclear Regulatory Commission Columbus, Ohio ~ 43215 Washingion, D. C.
20555
ATTACHMENT (continued)
David McNeill Olds, Esq.
Melvin G. Berger, E sq.
William S. Lerach, Esq.
Joseph J. Saunders, Esq.
Reed, Smith, Shaw & McClay David A. Leckie, Esq.
Post Office Box 2009 Janet R. Urban, Esq.
Pittsburgh, Pennsylvania 15230 Antitrust Division Department of Justice Terrence H. Benbow, Esq.
Post Office Box 7513 Steven B. Peri, Esq.
Washington, D. C.
20044 Winthrop, Stimson, Putnam & Roberts 40 Wall Street Karen H. Adkins, Esq.
New York, New York 10005 Richard M. Firestone, Esq.
Assistant Attorneys General Alan P. Buchmann, Esq.
Antitrust Section Squire, Sanders & Dempsey 30 East Broad Street, 15th floor 1800 Union Commerce Building Columbus, Ohio 43215 Cleveland, Ohio 44115 Russell J. Spetrino, Esq.
Leslie Henry, Esq.
' Thoma s A. Kayuha, Esq.
Michael M. Briley, Esq.
Ohio Edison Company Roger P. Klee, Esq.
47 North Main Street Fuller, Henry, Hodge & Snyder Akron, Ohio 44308 Post Office Box 2028 Toledo, Ohio 43604 Jolm Lanedale, Jr., Esq.
Cox, Langford & Brown Ja me s R. Edgerly, Esq.
21 Dupont Circle, N. W.
Secretary and General Counsel Washington, D. C.
20036 Pennsylvania Power Company Oae East Washington Street Richa rd A. Miller, Esq.
New Castle, Pennsylvania 16103 Vice President and General Counsel The Cicveland Electric Illuminating Co.
Donald H. Hauser, Esq.
Post oui. c Box 5000 Victor A. Greenslade, Jr., Esq.
C1c.ve1wd, Ohio 44101 The Cleveland Electric Illuminating Co.
Post Office Box 5000 Gerald Charnoff, Esq.
Cleveland, Ohio 44101 Wm. Bradford Reynolds, Esq.
Robert E. Zahler, Esq.
Thoma s J. Munsch, Jr., Esq.
Jay H. Berstein, Esq.
General Attorney Shaw, Pittman, Potts & Trowbridge Duquesne Light Company 1800 M Street, N. W.
435 Sixth Avenue Washington, D. C.
20036 Pittsburgh, Pennsylvania 15219 Atomic Safety and Licensing Board Panel Docketing and Service Section 4
- U. S. Nuclear Regulatory Commission Office o' the Secretary Washington, D. C.
20555 U.S. Nuclear Regulatory Commission TVa shington, D. C.
20555
, ATTACHMENT (continued)
Joseph A. Rieser, Esq.
Reed, Smith, Shaw & McClay 1150 - Conneeticut Avenue, N. W.
Wa shington, D. C.
20036 John C. Engle, President AMP-O, Inc.
20 Eigh Street Hamilton, Ohio. 45012 Michael R. Gallagher, Esq.
630 Bulkley Building 1501 Euclid Cleveland, Ohio 44115 4
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