ML19340A309
| ML19340A309 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 07/16/1976 |
| From: | Reynolds W, Zahler R CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8003050894 | |
| Download: ML19340A309 (8) | |
Text
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. July 16, 1976 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
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THE TOLEDO EDISON COMPANY and
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THE CLEVELAND ELECTRIC ILLUMINATING
)
Docket No. 50-346A,
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COMPANY
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(Davis-Besse Nuclear Power Station,
)
Unit 1)
)
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THE JLEVELAND ELECTRIC ILLUMINATING
)
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Docket Nos. 50-4t0A (Perry Nuclear Power Plant,
)
50-440A Units 1 and 2)
)
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THE TOLEDO EDISON COMPANY, ET AL.
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(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-500A Units 2 and 3)-
)
30-501A CEI'S RESPONSE TO THE FILING.OF THE CITY OP CLEVELAND RELATING TO APPLICAFTS EXHIBITS 278-283 (CEI) 1 1.
The CleveLmd Electric Illuminating Company
("CEI") objects to being forced.to take time out from what is already an all-too-short period for preparing its Post-Hearing Proposed Findings of Fact and Conclusions of Law to respond to the City of Cleve3mid's
(" City's") intemperate.
motion filed on. July 15, 1976.. We would respectfully request the Licensing Board to direct the City to confine its col-lateral attacks ~ henceforth to matters, if any, which are worthy of serious' consideration.
2.
As.for the City's-objections to Applicants.Ex-hibits 278-283 (CEI), they rest -on strained arguments of an 1
i
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overly technical nature which totally disregard the fact that the undersigned counsel explicitly cleared with the Board Chairman the procedure to be followed for furnishing the materials requested by the Board,(Tr. 12,459-12,460).
The affidavits identified as Applicants Exhibits 278, 280 and 281 satisfy that procedure.
Moreover, the statements contained in Applicants Exhibits 278 and 280 are fully con-sistent with the testimony given by Mr. Hauser and Mr. Gaul, respectively, on July 1, 1976.
The City 33 thus being less than honest with the Board to suggest now that it has had "no opportunity to explore the matters stated therein on cross-examination" (City's Motion, p. 2).
As for Ms. Coll's affi-davit (Applicants Exhibit 281), its contents can be compared Jord for word with the " tape" marked as Applicants Exhibit 283; so, tco, can the contents of the earlier corrected transcrip-tion marked as Applicants Exhibit 282.
There is thus no basis whatsoever for the City's suggestion that these exhibits can be faulted for insufficiency or lack of probative value.
3.
With respect to the tape itself, it is a copy of the City's own recording.
To the extent it contains imper-fections, those imperfections will be found to exist on the City's original sound belt used on the City's " permanently in-stalled sound scriber system" (City's Motion, p. 5 n.2).
If there really is reason to doubt the accuracy of the cassette
--y-
~e..
w
. furnished to the. Board -- and CEI seriously questions the sincerity of the City's protests in this regard -- we would ask that the City furnish the original sound belt for com-parison.
Curiously, the City has yet to make this item available to the Board or-the other parties.
If it is going to continue to withhold the original recording,' the City can b3rdly be heard to complain of the authenticity of the only copy available.
See Fed. R. Evid. 1003 & 1004(3).
4.
Turning briefly to the City's motion to strike the testimony of Messrs. Gaul and Hauser given on July 1, 1976, we do not see how this request is entitled to any recognition once the record has been closed.
The City had full opportunity to cross-examine both men at the time of their appearances and it did so.
No effort was made to strike their testimony at that time; indeed, the City explicity urged that Mr. Gaul be allowed to give live testimony concerning his March, 1974 con-versations with Mr. Kudukis (Tr. 12,430).
It is too late in the day.for the city now to ask that the testimony it insisted upon be stricken.
5.
Equally infirm is the City's request to reopen the record to call rebuttal witnesses in response to the testi-mony in question.
Such an opportunity was also made available to the City prior to the close of the reccrd in this case, and the City explicitly declined to take advantage of it L
1 (Tr. 12,659-12,660).
The mere fact that the City seems on hindsight to have rethought its stand on rebuttal witnesses clearly provides no legitimate basis for reopening the record.
Similarly, Applicants Exhibits 278-283 (CEI) are not cause for such relief.
These materials are simply corroborative of the live testimony heard by the City and do not open up any new avenues for inquiry that might have escaped the City when it affirmatively decided not to present a rebuttal case.
6.
Nor does the shallow contention regarding CEI's alleged non-production of documents on discovery advance the City's arguments any.
In the first place, it was not until recently that CEI gained possession of the recording and tran-script which have been furnished to the Board as Applicants Exhibits 282 and 283.
While Mr. Hauser had reviewed a copy of the earlier transcription (Applicants Exhibit 282) in con-nection with his work on a draft of the affidavit executed by Lee C. Howley, dated March 27, 1974 (Tr. 12,468-12,469, 12,473),
he did not retain any copy thereof.
In short, CEI did not have in its possession, custody and control any materials re-sponsive to City Document Request No. 90 at the time of its 1/
answer thereto.-
1/
It obviously follows that this material was therefore not available for production in response to City Document Request No. 24 ielther, although we would submit that a proper reading of that Document Request probably would not have re-quired production of Applicants Exhibits 282 and 283 in any event.
- 7.
Even more to the point, however, we do not understand how the City is in any position to claim prejudice because it did not earlier obtain from CEI copies of Appli-cants Exhibits 282 and 283.
The substance of CEI's under-standing of the March 4 and 5, 1974 conversations between Messrs. Gaul and Kudukis was set forth in the aforementioned Howley affidavit dated March 27, 1974, which was served on the City more than two years ago.
Both Mr. Gaul and Mr. Kudukis were affiliated with the City at the time and thus were readily available to the City for questioning on this matter.
More-over, the City had, and presumably still has, the original recording of the March 5 meeting.
In these circumstances, for the City to step forward now with a claim of surprise is, to say the least, itself surprising.
8.
This is all the more so in view of the fact that the City has been on notice from the beginning that CEI doubted the sincerity of the City's requests for CAPCO member-ship and for ownership participation in the designated nuclear units.
As ecrly as March 27, 1974, CEI put the City, and all other parties, on notice with its filing of the Howley affi-davit that it intended to place in issue the " good faith" of the City's negotiating posture with CEI.
The Company explic-itly confirmed in its Prehearing Brief, at p.
8, its intention to advance such a position at the hearing.
R, portion of CEI's
~
- cross-examination of Robert Hart went directly to this point.
For the City to assert now that it was without notice of CEI's defense regarding the City's lack of any genuine in-terest in CAPCG membership or in an ownership participation in nuclear generation is tantamount to an admission that it inexplicably approached and sat through the evidentiary 2/
hearing wearing blinders.-
Accordingly, to the extent that the City's perceptions of CEI's case were in fact misdirected --
3/
which real.ly seems unlikely -- it is not CEI who is to blame.
-2/
The City tries to make something of the fact that CEI did not designate Mr. Gaul on its initial witness list.
We would caution reading too much into this omission, however.
It is to be remembered that Mr. Gaul's affiliation and al-legiance were essentially with the City, not with CEI, and thus counsel's judgment initially was not to add him to CEI's witness list.
This decision was buttressed by the fact that the City had already designated Mr. Kudukis as a witness whom it intended to call, and thus CEI could anticipate an oppor-tunity to explore the matter with him on cross-examination.
As it later developed, the narrow line of direct examination of Mr. Kudukis would not permit CEI to proceed in such a fashion.
As for the exhibit list of CEI, once it appeared that CEI would be able to cross-examine Mr. Kudukis about the Caul-Kudukis conversation during the City's direct case, there was no good reason to reference materials relevant thereto as exhibits to be used by CEI on its direct case.
Of course, at the time the Exhibit List was prepared some of the materials in question were not even in existence.
3/
While the City makes reference to a prior ruling by the Boa d excluding evidence'outside the scope of the City's
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pleadings (City Motion, p. 8), that ruling has no application to CEI whatsoever.
CEI is not the moving party in this pro-ceeding, it is the defendant.
The most fundamental under-pinnings of our adversary process recognize that a defendant need not come forward at the outset of litigation and file a pleading which circumscribes his-area of proof.
A defendant is' entitled to introduce into evidence any matters relevant to the issues raised by the plaintiff's pleading which are (Cont'd p. 7) l
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. 9.
For the foregoing reasons, CEI urges that the City's requests for relief in its filing of July 15, 1976 be denied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
_By:.
Wm. Bradford Reynolds Robert E.
Zahler Counsel for Applicants Cated:
July 16, 1976.
3/ Cont'd from p. 6 responsive to the allegations made.
The Licensing Board has devised no different procedure for this administrative hearing.
The City's suggestion, therefore, that some exclusionary rule can be applied here to bar evidence of CEI on the ground that it fails to conform to some unidentified CEI " pleading" is preposterous, especially since the Board explicitly declined to require CEI, or-any of the other. Applicants, to file s2ch a " pleading" (Tr.~8108-8112)'.
UNITED STATES OF AMERICA I
NUCLEAR REGULATORY COMMISSION i
Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE TOLEDO EDISON COMPANY and
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
Docket No. 50-346A COMPANY
)
(Davis-Besse Nuclear Power Str. tion,
)
Unit 1)
)
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
)
Docket Nos. 50-400A (Perry Nuclear Power Plant,
)
50-440A Units 1 and 2)
)
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THE TOLEDO EDISON COMPANY, ET AL.
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(Davis-Besse Nuclear Power Station,
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Docket Nos. 50-500A Units 2 and 3)
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50-501A CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "CEI's Response To The Filing Of The City Of Cleveland Re-lating To Applicants Exhibits 278-283 (CEI)" were served upon each of the persons listed on the attached Service Lis'_, by hand delivering copies to those persons in the Washington, D. C. area and by mailing copies, postage pre-paid, to all others, all on this 16th day of July, 1976.
SHAW, PITTMAN, POTTS & TROWBRIDGE By:
s.1 Wm. Bradford Reynolds s
Counsel for Applicants
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