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| Nuclear Regulatory Comnission Washington, D.C. 20555 . Donald H. Hauser, Esquire Corporate Solicitor Atomic Safety and Licensing The Cleveland Electric Illuminating Company Board Panel Post Office Ecx 5000 Nuclear Ragulatory C:mmission Cleveland, Ohio 44101 Washington, D.C. 20555 . | | Nuclear Regulatory Comnission Washington, D.C. 20555 . Donald H. Hauser, Esquire Corporate Solicitor Atomic Safety and Licensing The Cleveland Electric Illuminating Company Board Panel Post Office Ecx 5000 Nuclear Ragulatory C:mmission Cleveland, Ohio 44101 Washington, D.C. 20555 . |
| John Lansdale, Jr., Esquire Frank W. Karas Cox, Langford & Brown Chief, Public Proceedings 21 Dupont Circle, N.W. | | John Lansdale, Jr., Esquire Frank W. Karas Cox, Langford & Brown Chief, Public Proceedings 21 Dupont Circle, N.W. |
| Staff Washing ton, D.C. 20026 Office of the Secretary Nuclear Regulatory Commission Chris Schraff, Esquire Washington, D.C. 20555 Office of Attorney General Abraham Braitman State of Ohio State House Office of Antitrust and Columbus, Ohio 43215 Indemnity Nuclear Regulatory Commissica Karen H. Adkins, Esquire Washington, D.C. 20555 Assistant Attorney General Herbert R. Whitting, Esquire Antitrust Section Robert D. Hart, Esquire 30 East Broad Street Law Department 15th Floor Columbus, Ohio 43215 City Hall Cleveland, Ohio 44114 Leslie Henry, Esquire Reuben Goldbarg, Esquire Fuller, Henry, Hodge | | Staff Washing ton, D.C. 20026 Office of the Secretary Nuclear Regulatory Commission Chris Schraff, Esquire Washington, D.C. 20555 Office of Attorney General Abraham Braitman State of Ohio State House Office of Antitrust and Columbus, Ohio 43215 Indemnity Nuclear Regulatory Commissica Karen H. Adkins, Esquire Washington, D.C. 20555 Assistant Attorney General Herbert R. Whitting, Esquire Antitrust Section Robert D. Hart, Esquire 30 East Broad Street Law Department 15th Floor Columbus, Ohio 43215 City Hall Cleveland, Ohio 44114 Leslie Henry, Esquire Reuben Goldbarg, Esquire Fuller, Henry, Hodge David C. Hjelmfelt, Esquire & Snyder . |
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| David C. Hjelmfelt, Esquire & Snyder . | |
| 17.00 Pennsylvania Avenue, N.W. 300 Madison Avenue Toledo, Ohio 43604 | | 17.00 Pennsylvania Avenue, N.W. 300 Madison Avenue Toledo, Ohio 43604 |
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| ' Columbus, Ohio 43215 Richard M. Firestone , | | ' Columbus, Ohio 43215 Richard M. Firestone , |
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| Assistant. Attorney General Antitrust Section 30 East Broad Street , | | Assistant. Attorney General Antitrust Section 30 East Broad Street , |
| 15th Floor Columbus, Ohio 43215 . | | 15th Floor Columbus, Ohio 43215 . |
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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20212J1581999-09-30030 September 1999 Order Approving Transfer of License & Conforming Agreement. Orders That License Transfer Approved,Subj to Listed Conditions ML20205D4901999-02-22022 February 1999 Transcript of 990222 Informal Public Hearing on 10CFR2.206 Petition in Rockville,Md.Pp 1-105.Supporting Documentation Encl ML20198L1911998-12-21021 December 1998 Submits Comments Re Proposed Rule to Revise 10CFR50.59, Changes,Tests & Experiments ML20198L1361998-12-15015 December 1998 Comment Opposing Proposed Rule 10CFR50.65 Re Requirements for Monitoring Effectiveness of Maint of NPP ML20198D9711998-11-0909 November 1998 Petition Per 10CFR2.206 Requesting That Facility Be Immediately Shut Down & OL Be Suspended or Modified Until Such Time That Facility Design & Licensing Bases Properly Updated to Permit Operation with Failed Fuel Assemblies ML20155F4561998-08-26026 August 1998 Demand for Info Re False Info Allegedly Provided by Wh Clark to Two NRC Licensees.Nrc Considering Whether Individual Should Be Prohibited from Working in NRC-licensed Activities for Period of 5 Yrs ML20236V5261998-07-20020 July 1998 Computer Access & Operating Agreement Between Cleveland Electric Illuminating Co & NRC PY-CEI-NRR-2284, Comment Opposing Proposed Generic Communication, Lab Testing of Nuclear-Grade Activated Charcoal1998-05-21021 May 1998 Comment Opposing Proposed Generic Communication, Lab Testing of Nuclear-Grade Activated Charcoal ML20216B5111998-04-0909 April 1998 Order Imposing Civil Monetary Penalty.Denies Request for Remission of Violation C,Ea 97-430 & Orders Licensee to Pay Civil Penalty in Amount of $50,000 within Next 30 Days PY-CEI-NRR-2269, Comment on Proposed Rule 10CFR50.NRC Should Demonstrate That Not Only Is Code Process Flawed,But That Proposed Change Justified from Cost Versus Safety Protective1998-04-0303 April 1998 Comment on Proposed Rule 10CFR50.NRC Should Demonstrate That Not Only Is Code Process Flawed,But That Proposed Change Justified from Cost Versus Safety Protective ML20217J2161998-03-27027 March 1998 Comment on Proposed Generic Communication Re Lab Testing of nuclear-grade Activated Charcoal ML20217F5361998-03-25025 March 1998 Comment Opposing Draft Regulatory Guide DG-1071, Std Format & Content for Post-Shutdown Decommissioning Activities Rept ML20217J0661998-03-11011 March 1998 Order Approving Application Re Merger Agreement Between Dqe, Inc & Allegheny Power System,Inc ML20216G3821998-03-11011 March 1998 Order Approving Application Re Merger Agreement Between Duquesne Light Co & Allegheny Power Systems,Inc ML20199J4651998-01-22022 January 1998 Comment Opposing Draft RG-1070, Sampling Plans Used for Dedicating Simple Metallic Commercial Grade Items for Use in Npps. RG Unnecessary Based on Use of EPRI Guideline & Excellent Past History of Commercial Grade Items at DBNPS ML20198P9311997-11-0707 November 1997 Comments of American Municipal Power-Ohio,Inc.NRC Should Require Allegheny Power Sys,Inc to Affirm That Capco Antitrust License Conditions Will Be Followed ML20148M6421997-06-17017 June 1997 Comment on Proposed NRC Bulletin 96-001,suppl 1 Re Control Rod Insertion Problems.Nrc Should Review Info Provided in Licensee 970130 Submittal & Remove Statements of Applicability to B&W Reactors from Suppl Before Final Form ML20134L3401997-01-22022 January 1997 Resolution 96-R-85, Resolution Supporting Merger of Centerior Energy Corp & Ohio Edison Under New Holding Co Called Firstenergy ML20133B6941996-12-18018 December 1996 Submits Ordinance 850-96 Re Approval of Merger of Centerior & Oh Edison Into Firstenergy ML20135F4731996-12-0606 December 1996 Memorandum & Order CLI-96-13.* Commission Reverses & Vacates ASLB LBP-95-17 Which Granted Motion for Summary Disposition Submitted by Ocre & Hiatt.W/Certificate of Svc.Served on 961206 ML20132A8461996-12-0202 December 1996 Resolution 20-1996 Supporting Merger of Ohio Edison & Centerior Corp Under New Holding Company Called Firstenergy ML20134M6191996-10-28028 October 1996 Proclamation of Support by City of Sandusky,Oh Re Merger of Ohio Edison and Centerior Energy Corp ML20112J8281996-06-18018 June 1996 Licensee Reply Brief on Review of Licensing Board Decision LBP-95-17.* W/Certificate of Svc ML20112D8721996-05-29029 May 1996 Intervenor Brief in Support of Commission Affirmation of LBP-95-17.* Commission Should Affirm Licensing Board Decision.W/Certificate of Svc ML20108D9571996-05-0303 May 1996 CEI Response to City of Cleveland 2.206 Petition.Nrc Should Deny Petition ML20108B7571996-04-26026 April 1996 Licensee Brief on Review of Licensing Board Decision LBP-95-17.* Recommends That Commission Reverse Board Memorandum & Order Issued 951004.W/Certificate of Svc & Svc List PY-CEI-NRR-2034, Comment Opposing Proposed Rule 10CFR20 Re Reporting Requirements for Unauthorized Use of Licensed Radioactive Matl1996-03-11011 March 1996 Comment Opposing Proposed Rule 10CFR20 Re Reporting Requirements for Unauthorized Use of Licensed Radioactive Matl ML20097G5731996-02-13013 February 1996 Comment Supporting Petition for Rulemaking PRM-50-63 Re Use of Potassium Iodide ML20101B5841996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement Or,In Alternative,For Severance of Issue & Expedited Hearing Procedures.W/Certificate of Svc ML20097B8911996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement or in Alternative,For Severance of Issue & Expedited Hearing Procedures ML20097B8721996-01-23023 January 1996 Petition of City of Cleveland,Oh for Expedited Issuance of Nov,Enforcement of License Conditions & Imposition of Appropriate Fines,Per 10CFR2.201,2.202,2.205 & 2.206 ML20096E9781996-01-0808 January 1996 Comment on Proposed Suppl to GL 83-11, Licensee Qualification for Performing Safety Analyses in Support of Licensing Actions ML20096E2471996-01-0303 January 1996 Comment on PRM 50-64 Re Stockpiling Ki for Use as Thyroid Protectant in Event of Nuclear Accident.Supports Distribution of Ki to Public ML20094N1951995-11-17017 November 1995 Oh Edison Application for License Transfer in Connection W/ Sale & Related Transactions ML20094M5941995-11-15015 November 1995 Intervenors Answer to Licensees Petition for Review.* Intervenor Conclude That Commission Should Not Review Board Decision.W/Certificate of Svc ML20094J9141995-11-0707 November 1995 Petition for Review.* Submits That Commission Review of Board Decision Appropriate Under 10CFR2.786. W/Certificate of Svc & Svc List ML20093N9491995-10-23023 October 1995 Licensee Request for Extension of Time to File Petition for Review.* Requests That Commission Grant Extension Until 951107 of Deadline for Filing Petition for Review. W/Certificate of Svc ML20087J3611995-08-14014 August 1995 Comment Opposing Proposed Rule 10CFR2 Re Rev of NRC Enforcement Policy ML20086M8241995-06-29029 June 1995 Comment on Proposed Review of NRC Insp Rept Content,Format & Style ML20083M8701995-05-10010 May 1995 Comment on Proposed Rule 10CFR50 Re Primary Reactor Containment Leakage Testing for Water-Cooled Power Reactor ML20081C8841995-03-0303 March 1995 Comment Re NRC Proposed Generic Communication Suppl 5 to GL 88-20, IPEEE for Severe Accident Vulnerabilities. Util Ack NRC Efforts to Reduce Scope of GL 88-20,but Believes That Proposed Changes Still Overly Restrictive ML20077M5831995-01-0404 January 1995 Comment Opposing Proposed Rule 10CFR50 Re Shutdown & low-power Operations for Nuclear Power Reactors ML20072K3611994-08-16016 August 1994 Comment Opposing Proposed Rule 10CFR72 Re Plans for Storage of Sf at Davis Besse NPP ML20072K4411994-08-14014 August 1994 Comment Opposing Proposed Rule 10CFR72 Re Dry Storage of Nuclear Waste at Facility in Toledo,Oh ML20072K5261994-08-12012 August 1994 Comment Supporting Proposed Rule 10CFR72 Re Addition of Standardized NUHOMS Horizontal Modular Storage Sys to List of Approved Sf Storage Casks ML20072B1581994-08-0909 August 1994 Comment Opposing Proposed Rule 10CFR72 on List of Approved Spent Fuel Storage Casks:Addition ML20029D8221994-04-19019 April 1994 Comments on Proposed Rule 10CFR50 Re Codes & Stds for Nuclear Power Plants;Subsection IWE & Subsection Iwl ML20065L3571994-04-0505 April 1994 Intervenors Answer to NRC Staff Response to Intervenors Motion for Summary Disposition & Licensees Cross Motion for Summary Disposition.* Urges Board to Deny Licensee Cross Motion.W/Certificate of Svc ML20064N6341994-03-21021 March 1994 Affidavit of RW Schrauder in Support of Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.W/Certificate of Svc ML20064N6081994-03-21021 March 1994 Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.* Moves for Decision in Licensee Favor on Ocre Contention 1999-09-30
[Table view] Category:PLEADINGS
MONTHYEARML20198D9711998-11-0909 November 1998 Petition Per 10CFR2.206 Requesting That Facility Be Immediately Shut Down & OL Be Suspended or Modified Until Such Time That Facility Design & Licensing Bases Properly Updated to Permit Operation with Failed Fuel Assemblies ML20112J8281996-06-18018 June 1996 Licensee Reply Brief on Review of Licensing Board Decision LBP-95-17.* W/Certificate of Svc ML20112D8721996-05-29029 May 1996 Intervenor Brief in Support of Commission Affirmation of LBP-95-17.* Commission Should Affirm Licensing Board Decision.W/Certificate of Svc ML20097B8721996-01-23023 January 1996 Petition of City of Cleveland,Oh for Expedited Issuance of Nov,Enforcement of License Conditions & Imposition of Appropriate Fines,Per 10CFR2.201,2.202,2.205 & 2.206 ML20101B5841996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement Or,In Alternative,For Severance of Issue & Expedited Hearing Procedures.W/Certificate of Svc ML20094M5941995-11-15015 November 1995 Intervenors Answer to Licensees Petition for Review.* Intervenor Conclude That Commission Should Not Review Board Decision.W/Certificate of Svc ML20094J9141995-11-0707 November 1995 Petition for Review.* Submits That Commission Review of Board Decision Appropriate Under 10CFR2.786. W/Certificate of Svc & Svc List ML20093N9491995-10-23023 October 1995 Licensee Request for Extension of Time to File Petition for Review.* Requests That Commission Grant Extension Until 951107 of Deadline for Filing Petition for Review. W/Certificate of Svc ML20065L3571994-04-0505 April 1994 Intervenors Answer to NRC Staff Response to Intervenors Motion for Summary Disposition & Licensees Cross Motion for Summary Disposition.* Urges Board to Deny Licensee Cross Motion.W/Certificate of Svc ML20064N6081994-03-21021 March 1994 Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.* Moves for Decision in Licensee Favor on Ocre Contention ML20063L4621994-02-0707 February 1994 Motion for Summary Disposition.* Intervenors Request That Board Grant Summary Disposition Favorably & Issue Declaratory Relief by Finding Challenged Portion of Amend 45 to Be in Violation of Aea.W/Certificate of Svc ML20058P4451993-12-13013 December 1993 Licensee Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Supplemental Petition for Leave to Intervene.* W/Certificate of Svc ML20059B0701993-10-12012 October 1993 Motion to Defer Consideration of Remanded Issue.* Requests That Licensing Board Defer Consideration of Remanded Issue Pending Outcome of Commission Review of 2.206 Process.W/ Certificate of Svc ML20126D5171992-12-23023 December 1992 City of Brook Park Answer to Petitions for Review.* Opposes Applicants 921208 Petitions for Review Based on Fact That ASLB Decision in proceeding,LBP-92-32,adequately Addressed Issues Raised in Petitions.W/Certificate of Svc ML20126D5461992-12-23023 December 1992 Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Limited Petition for Review of City of Cleveland,Oh of 921118 Decision of Aslb.* Commission Should Deny City of Cleveland Petition.W/Certificate of Svc ML20126D5781992-12-23023 December 1992 Answer of American Municipal Power-OH,Inc in Opposition to Petitions for Review of Oh Edison Co & Cleveland Electric Illuminating Co/Toledo Edison Co.* W/Certificate of Svc ML20126D5801992-12-23023 December 1992 NRC Staff Answer in Response to Petitions for Review Filed by Oh Edison Co,Cleveland Electric Illuminating Co,Toledo Edison Co & City of Cleveland.* W/Certificate of Svc ML20126F6501992-12-23023 December 1992 Answer of City of Cleveland,Oh,Intervenor,In Opposition to Petitions for Review of 921118 Decision of Aslb.* Petitioners Petitions for Review Should Be Denied. Certificate of Svc Encl ML20126D4761992-12-22022 December 1992 Alabama Electric Cooperative Answer to Applicants Petitions for Review.* Applicants 921208 Petitions for Review Should Be Denied.W/Certificate of Svc ML20126A5751992-12-0808 December 1992 Petition for Review.* Requests That NRC Review LBP-92-32, 921118 Board Decision in Proceeding.Board Erroneously Interpreted Section 105(c) of AEA by Ignoring Fundamental Underpinning of Statute.W/Certificate of Svc ML20126A5871992-12-0808 December 1992 Petition for Review.* Requests That NRC Review ASLB 921118 decision,LBP-92-32.Board Erroneously Interpreted Section 105(c) of AEA by Ignoring Fundamental Underplanning of Statute.Certificate of Svc Encl ML20126A7651992-11-18018 November 1992 Limited Petition for Review of City of Cleveland,Oh of 921118 Decision of Aslb.* City of Cleveland Petition for Review Should Be Granted.W/Certificate of Svc ML20116M4671992-11-16016 November 1992 Licensee Response to Lake County Commissioners 10CFR2.206 Petition.* Petition Should Be Denied.Certificate of Svc Encl ML20116E7941992-09-29029 September 1992 Petition for Action to Relieve Undue Risk Posed by Const of Low Level Radwaste at Perry Plant.* Requests Public Hearing Be Held Prior to Const of Storage Site & Const Should Be Suspended Until NRC or Util Produces EIS on Risks ML20101N5131992-07-0808 July 1992 City of Cleveland Opposition to Applicant Request That Licensing Board Disregard Certain Arguments of City of Cleveland Counsel in Oral Argument.Certificate of Svc & Svc List Encl ML20101N6401992-07-0707 July 1992 Reply by American Municipal Power-Ohio,Inc to Applicant Request That Board Disregard Factual Issues.* Applicant Requests Board Disregard Irrelevant Assertions by All Parties.W/Certificate of Svc ML20101K2101992-06-29029 June 1992 Applicants Request That Licensing Board Disregard Factual Issues Discussed During Oral Argument.* Foregoing Issues Represent Factual Issues Which Board Should Disregard in Disposition of Phase One of Case.W/Certificate of Svc ML20098D5181992-05-26026 May 1992 Reply of City of Cleveland,Oh to Arguments of Applicants & NRC Staff W/Respect to Issues of Law of Case,Res Judicata, Collateral Estoppel & Laches.* W/Certificate of Svc & Svc List ML20096A6281992-05-0707 May 1992 Applicants Reply to Opposition cross-motions for Summary Disposition & Responses to Applicants Motion for Summary Disposition.* Applicants Conclude NRC Has No Authority to Retain Antitrust Licensing Conditions.W/Certificate of Svc ML20090F4261992-03-31031 March 1992 Motion for Summary Disposition of Intervenor,City of Cleveland,Oh & Answer in Opposition to Applicant Motion for Summary Disposition.* City of Cleveland,Oh & Applicant Motions Should Be Denied.W/Certificate of Svc ML20094K3791992-03-18018 March 1992 Applicants Motion to Amend Summary Disposition Schedule.* Applicants Request That Motion to Amend Summary Disposition Schedule Be Granted.W/Certificate of Svc ML20094J2891992-03-0909 March 1992 Response of DOJ to Applicant Motion for Summary Disposition.* Urges ASLB to Resolve Bedrock Legal Issue in Negative & Concludes That Commission Possess Legal Authority to Retain License Conditions.W/Certificate of Svc ML20091N1241992-01-24024 January 1992 Applicants Answer to Cleveland Motion to Amend Schedule for Summary Disposition Motions.* Applicants Have No Objection to Request for Opportunity to Submit Reply.W/Certificate of Svc ML20087E7821992-01-16016 January 1992 Motion to Amend Schedule for Summary Disposition Motions.* Cleveland Requests That Motion Be Granted & 911114 Order Establishing Schedule for Motions for Summary Disposition Be Amended.W/Certificate of Svc & Svc List ML20086U5371992-01-0606 January 1992 Applicants Motion for Summary Disposition.* Requests That Board Grant Applicants Motion for Summary Disposition Due to Lack of NRC Authority to Retain Antitrust License Conditions.W/Certificate of Svc ML20086J4821991-12-31031 December 1991 Reply Brief of City of Cleveland,Oh in Support of Notice of Appeal of Prehearing Conference Order Granting Request for Hearing.* Appeal Should Be Granted,Ref to Board Revoked & Applications Dismissed.W/Certificate of Svc ML20086Q9231991-12-27027 December 1991 Motion of City of Cleveland,Oh for Leave to File Reply & Reply to Applicants Answer to City Motion for Commission Revocation of Referral to ASLB & for Adoption of 910424 Decision as Commission Decision.W/Certificate of Svc ML20086Q3001991-12-24024 December 1991 Applicant Answer to Motion of City of Cleveland,Oh for Commission Revocation of Referral to ASLB & for Adoption of 910424 Decision as Commission Decision. * W/Certificate of Svc ML20091H7161991-12-19019 December 1991 Motion of City of Cleveland,Oh for Commission Revocation of Referral to ASLB & for Adoption of 910424 Decision as Commission Decision.W/Certificate of Svc ML20086N4601991-12-17017 December 1991 Licensees Response to Ohio Citizens for Responsible Energy, Inc & SL Hiatt Amended Petition for Leave to Intervene.* Determines That Intervenor Failed to Demonstrate Interest in Proceeding.W/Certificate of Svc & Svc List ML20086J4741991-12-0909 December 1991 Motion of City of Cleveland,Oh for Leave to File Reply Brief.* Motion to File Reply Should Be Granted for Listed Reasons ML20086G4001991-11-26026 November 1991 Ohio Edison Co Motion for Reconsideration.* Util Respectfully Requests That NRC Vacate CLI-91-15 & Direct Forthwith Answer to Licensee Motion to Compel.W/Certificate of Svc ML20079Q0301991-11-0606 November 1991 Oec Motion to Compel NRC Staff to Respond to Interrogatories.* Util Moves Board to Compel NRC to Respond Completely,Explicitly & Properly to Licensee Interrogatories.W/Certificate of Svc ML20083B5841991-09-0606 September 1991 Licensee Answer to Oh Citizens for Responsible Energy,Inc & SL Hiatt Petition for Leave to Intervene & Request for Hearing.* Ocre Has Shown No Interest in Proceeding.W/Notice of Appearance,Certificate of Svc & Svc List ML20076D0481991-07-18018 July 1991 Answer of Cleveland Electric & Toledo Edison to Petition of American Municipal Power-Ohio for Leave to Intervene.* Utils Believe That 910703 Petition Should Be Granted.W/Certificate of Svc ML20076D1611991-07-18018 July 1991 Answer of Ohio Edison Co to Petition of American Municipal Power-Ohio,Inc (AMP-Ohio) for Leave to Intervene.* Util Does Not Object to Admission of AMP-Ohio as Intervenor on Basis of Status as Beneficiary.W/Certificate of Svc ML20081K8961991-06-20020 June 1991 Alabama Electric Cooperative Reply to Oppositions Filed to Petition to Intervene.* Informs of Util Intention to Assure Vindication of Proper Legal Principle.W/Certificate of Svc ML20079D2211991-06-17017 June 1991 Answer of Ohio Edison Co to Opposition of City of Cleveland, Oh to Hearing W/Respect to Denial of Applications to Suspend Antitrust License Conditions & Petition to Intervene in Event Hearing Requested & Granted.W/Certificate of Svc ML20079D2391991-06-17017 June 1991 Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Opposition of City of Cleveland,Ohio,To Hearing W/Respect to Denial of Applications to Suspend Antitrust License Conditions & Petition to Intervene.* ML20079D2151991-06-14014 June 1991 Answer of Ohio Edison Co to Petition of Alabama Electric Cooperative,Inc for Leave to Intervene.* Alabama Electric Cooperative,Inc Petition for Leave to Interveve Should Be Denied.W/Certificate of Svc 1998-11-09
[Table view] |
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1' ?' 7 .
- '?aDC n'.lAn.23 Gi .222B
- Ch
. fur"ipkn *: 'GU*J. TORY CO'!MISSICN ESFORE T.", J TCMIC SAFETY FJID LICENSING SOARD In the Matter )
)
. The Toledo Edison Company )
The Cleveland Electric Illuminating ) Docket No. 50-346A Company )
' (Davis-3 esse Nuclear Power Station) )
)
The Cleveland Electric Illuminating ) Docket Nos. 50-440A Company, et.al. ) and 50-441A (Perry Plant, Units 1 and 2) ) .
MEMORA';DUM OF -
POINTS AND AUTHORITIES'OF DEPARTMENT OF JUSTICE WITH REGARD TO THE DECISION OF THE SPECIAL MASTER f
Pursuant to the Order of Chairman Rigler of June 25, 1975, the Department of Justice submits this memorandum of points and authorities in support of its challanges to findingsof privi-lege by the Special Master. The Department incorporates by reference its arguments in opposition to Applicants' C'. aims of Privilege contained in the Reply Memorandum of the Department of Justice on Applicants Claims of Privilege, submitted May 2, 1975.
8 002180 fff n4: .
o I
In its List of Challenges to the Special. Master's Findings .
of Privilege the Department nas challenged the findings of
- uttorney-client privilege cs tc those documents for which Applicants either failed to claim the privilege (Category 2) o.r waived the privilege entirely (Category 4) . In the classic statement of the attorney-client privilege, made in United States v. United Shoe Machinerv Corp., S7 F. Supp. 357, 358-59 (D. Masc. 1950), Judge Wyzanski stated that: "The privilege applies only if . . . (4) the privilege has been (a) claimed and (b) not waived by the' client." It is clear from this languaga that for the privilege to be uph' eld it must be specifically claimed; the mere lack of waiver of a claim of privilege by a party does not constitute the positive assertion necessary to bring the document within the privilege. It was held in Magida
- v. Continental Can Co., 12 F.R.D. 74, 77 (S . D .N. Y . 1951) that "where there has been a waiver of privilege, clearly expressed, the deponent cannot object to questions concerning the privilegsd matter. The waiver need not be expressed in writing nor in any particular form, but the intent to waive must be expressed either by. word or act or omission to speak and act." (emphasis added).
This rule, requiring a specific claim of privilege, is consistent with the theory behind its applicaticn. The purpose of the attorney-client privilege is to promote full disclosure l l
and communication between attorney and client. 8 Wigmore, Evidence ;
S2290, at 554 (Mcnaughten rev. 1961). (hereinafter cited as Wigmore). On the other hand, the privilege acts as a car to full examination of all the evidence bearing on the litigation.
2 e
I
4 To accommodate each of these opposing interentu insofar as pos-sible, the privilege "is worth preserving for the sake of a
. ge,n'eral policy, but it is nonetheless an obstacle to the inves-tigation of the truth. It ought to be arrictly confined within the narrowest possible limits consistent with its principle." ,
Wigmore, S2291, at $54. See also, Radient Burners, Inc. v.
American Gas Association, 320 F. 2d 314 (7th Cir.) cert. denied, 375 U.S. 929 (1963); United States v. Gcidfarb, 328 F. 2d 280 (6th Cir.) cert. denied 377 U.S. 976 (1964).
Because the privilege is to be narrowly applied, it follows .
tha't the party seeking to withhold evidence through use of the privilege "has the burden of establishing the existence of the privilege." S Wright & Miller, Federal Practica and Procedure, S2016 at 125 (1970); United States v. Johnson, 465 F. 2d 793 (5th Cir. 1972); Honeywell, Inc~. v. Piper Aircraft Co., 30 F.R.D.
117 (M.D. Pa. 1970).
In order to sustain its burden of proof, the party claiming the privilege must "show sufficient facts as to bring the identified and described document within the narrow confines of the privilege." International Paper Co. v. Fireboard Corporation, 63 F.R.D. 88, 94 (M.D. Pa. 1974). It is apparent in the present situation that if the Applicants did not claim the privilege, or if they specifically waived it, they could not have met their burden of establishing factually that the documents were within the privilege. The Department requests the Master to so hold with respect to the documents in Categories 2 and 4.
3 r )
l i
. II Tile Department of Justice has also challenged those documents which the Master held to come within the " work product" exclusion;-
~~ ~ al*thoug'h no claim of " work product" had been made with respect thereto (Category 3) , and those documents as to which the " work product" privilege had been waived (Category 5). The " work product" exclusion is inrended to promote. full preparation of a case by an attorney, free from the fear that his thoughts and mental impressions will later be discovered by his opponents. Hickman
- v. Taylor, 329 U.S. 495 (1947). As with the attorney-client privilege,.a party claiming protection under the " work product" exclusion has the burden of proving that documents claimed.as protected fall within the exclusion. McNeice v. Oil Carriers Joint Venture, 23 F.R.D. 15 (E.D. Pa. 1958); Hazell v. Pennsylvania R.
Co., 15 F.R.D. 232 (E.D. Pa. 1953). Since Applicants have failed to claim the exclusion, it is difficult to believe that they have sustained the burden of proof required for its application.
Further, the fear that mental impressions would be revealed, an essential element of the privilege, cannot have been present where. Applicants felt no need to make a claim of exclusion.
Under these principles the Master should hold that the documents in Categories 3 and 5 are not validly to be deemed i
privileged.
1 III l Finally, the Department of. Justice has challenged findings of privilege for those documents, claimed as protected under the. attorney-client privilege, where neither the author nor the 4
l l
. i
recipient.is an attorney (Catescry 6).
It_is an essential
. element of the privilege that only communications between an attorney and a client are privileged. United States v. United Sh'oe Machinery Corp., 89 F. Supp. 357, 358-359. (D. Mass. 1950)'.
Documents _which on their face are not privileged do not become so when transmitted to an attorney, even if for the purpoce of seeking legal advice. Colton v. United States 306 F. 2d 633 -
(2d Cir. 1962); Bouscher v. United States, 316 F. 2d 451 (8th Cir. 1963); Falsone v. United States, 205 F. 2d 734 (5th Cir.
1953). As the Second Circuit noted in Bouscher v. United States, 316 F. 2d at 639, "any other rule would permit a person-to pre-vent disclosure of any of his papers.by the simple expedien.t of keeping them in the possession of his attorney." This rule was applied to a corporation in Radiant Burners, Inc. v. American Gas Asscciation, 320 F. 2d 314, 324 (7th Cir. 1963):
Certainly the privilege would never be avail- .
able to allcw a corporation to funnel its papers and documents into the hands of its lawyers for custodial purposes and'thereby avoid disclosure.
Thus, those documents neither written by nor addressed to an attorney cannot be privileged, regardless whether they may eventually have found their way into an attorney's files.
IV As noted in the List of Challenges, the Department of Justice joins in the challenge to those documents challenged by the City of Cleveland in Category 2, Part A of their List of Challenged Documents for the reasons given by the City of Cleveland.
5-i e
In conclusion, the Department urges application of the
-principles set forth above and,in'the Reply !tenorandum of the Department of Justice on Applicants' /?laims of Pnvilege to the
~
proceeding concerning the Master's granting of claims of priv-ilege.
Respectfully submitted,
~"
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_ STEVEN M. CHARNO 4
~
MELVIN G. EERGER 1/ / Ovth!' & .. . 2: .ovh ANTHONY G.-A1UVALASIT /.J-
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, NET R. URBAN AAttorneys, Department of Justice
. Washington, D.C. 20530
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.. . 4 UNI' FED STATES OF AMERICA NUCLEAR REGULA?CKY COIC*ISSION -
BEFORE THE ATOMIC SEFETY AND LICENSING EOARD In the Matter )
)
)
The Toledo Edison Company )
'The Cleveland Electric Illuminating )
Company )
(Davis-Besse Nuclear Pcwer Station) ) Docket No. 50-346;
)
The Cleveland Electric Illuminating )
Company, et al. -
)
Docket Mos. 50-440A (Ferry Plant, Units 1 and 2) )
and 50-441A CERTIFICATE OF SER' LICE I hereby certify that Ocpies cf IGMORANDUM CF ?OINTS AND AUTHORITIES OF DE?ARTMENT OF JUSTICE WITH REGARD TO THE DECISION OF THE SPECIAL MASTER have been served upon all -
of- the parties listed on the attachment hereto by deposit in the United States mail, first class, airmail or by hand delivery, this 27th day of June 1973.
- t f v ! i e~
gCPJANET R. URBAN l Attorney, Antitrust Division Department of Justice 1
e . .
9
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ATTACHMENT Douglas Rigler, Esquire Denjenin H.'Vogler, Esquire Chairman Roy P. Lessy, Jr., Esquire Atomic Safety*and Licensing Board- Office of the General Counsel Nuclear Regulatory Commission o
- Foley, Lardner, Hollabaugh Washington, D.C. 20555 s Jacobs 815 Connecticut Ave., N.W. Gerald Charnoff, Esquire Washington, D.C. 20006 William Bradford Reynolds, Esquire John H. Brabbia, Esquire Shaw, Pittman, Potts & Trowbridge
.?
Atomic Safety and Licensing 910 Seventeenth Street, N.W.
Washington, D.C. 20006 Board Alston, Miller & Gaines Lee C. Howley, Esquire 1776 K Street, N.W.
Washington, D.C. 20006 Vice President & General Counsel .
The Cleveland Electric Illuminating Company ,
John'M. Frysiak, Esquira Atomic Safety and Licensing Post Office Box 5000 .
Cleveland, Ohio 44101 Board Panel .
Nuclear Regulatory Comnission Washington, D.C. 20555 . Donald H. Hauser, Esquire Corporate Solicitor Atomic Safety and Licensing The Cleveland Electric Illuminating Company Board Panel Post Office Ecx 5000 Nuclear Ragulatory C:mmission Cleveland, Ohio 44101 Washington, D.C. 20555 .
John Lansdale, Jr., Esquire Frank W. Karas Cox, Langford & Brown Chief, Public Proceedings 21 Dupont Circle, N.W.
Staff Washing ton, D.C. 20026 Office of the Secretary Nuclear Regulatory Commission Chris Schraff, Esquire Washington, D.C. 20555 Office of Attorney General Abraham Braitman State of Ohio State House Office of Antitrust and Columbus, Ohio 43215 Indemnity Nuclear Regulatory Commissica Karen H. Adkins, Esquire Washington, D.C. 20555 Assistant Attorney General Herbert R. Whitting, Esquire Antitrust Section Robert D. Hart, Esquire 30 East Broad Street Law Department 15th Floor Columbus, Ohio 43215 City Hall Cleveland, Ohio 44114 Leslie Henry, Esquire Reuben Goldbarg, Esquire Fuller, Henry, Hodge David C. Hjelmfelt, Esquire & Snyder .
17.00 Pennsylvania Avenue, N.W. 300 Madison Avenue Toledo, Ohio 43604
. Suite.550 .
Washington, D.C. 20006 e.e m e,._. , , _
l
Thomas A. Kayuha, Esquire Ohio Edicon Company 47 North Main Stract-
' Akron, Ohio 44308
- David M. Olds, Esquire
- Reed, Smith, Shaw & McClay 747 Union Trust Building
. Pittsburgh, Pennsylvania 15219 s,.
' !!r . Raymond Kudukis Director of Utilities City of Cleveland 1201 Lakeside Avenue Cleveland, Ohio 44114 Wallace L. Duncan, Esquire
- Jon T. Brown, Esquire Duncan, Brown, Weinberg .
L Palmer 1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006 .
e Edward A. Matto, Esquire Assistant Attorney General Chief, Antitrus t Section.
30 East Broad Street .
15th Floor
' Columbus, Ohio 43215 Richard M. Firestone ,
Assistant. Attorney General Antitrust Section 30 East Broad Street ,
15th Floor Columbus, Ohio 43215 .
Victor F. Greenslade, Jr., Esquire ,
Principal Staff Counsel The Cleveland Electric Illuminating Company Post Office Box 5000 Cleveland, Ohio 44101 e
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