ML19329C287

Minutes of SM Charno 750624 Telcon W/Counsel:Dv Rigler (Aslb),Wb Reynolds (Applicant), RP Lessy (NRC) & R Goldberg (City of Cleveland) Re Special Master Rept.Tentative Hearing Date 750630 & 750710 Alternate Date.Certificate of Svc Encl

ML19329C287
Person / Time
Site:	Davis Besse, Perry
Issue date:	06/26/1975
From:	Charno S JUSTICE, DEPT. OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002120995
Download: ML19329C287 (10)

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UNITED STATES OF MCRICA NUCLEAR REGULATORY COD'ISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter Of 1

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The Toledo Edison Company and )

The Cleveland Electric Illuminating ) Docket No. 50-346A Company )

(Davis-Besse Nuclear Power Station, )

Unit 1) )

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The Cleveland Electric Illuminating ) Docket Nos. 50-440A Company, et al. ) and 50-441A (Perry Nuclear Power Plant, ) .

Units 1 and 2) )

MINUTES OF CONFERENCE CALL WITH BOARD CHAIRMAN ON JUNE 24, 1975 On Tuesday, June 24, 1975, the Licensing Board Chairman initi-ated a conference rall at 2:30 p.m. concerning the Rcport of the Special Master. .articipants

> in the call were: Licensing Board Chairman Douglas V. Rigler; Mr. Wm. Bradford Reynolds, counsel for Applicants; Mr. Roy P. Lessy, Jr., counsel for Nuclear Regula-tory Commission Staff; Mr. Reucen Goldberg, counsel for the City of Cleveland; and Mr. Steven M. Charno, counsel for Department of Justice.

Mr. Rigler opened the ' call by inquiring whether the parties wanted the documents delivered or if they had any objections to the ruling of,the Special Master. ,

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iir. Goldberg indicated 'that he was dismayed by the Report, and that he could not explain some of the things done by the Master. He gave as examples the Master's granting of privilege for thirty documents on which the Applicants had waived their claims of privilege, and the Master's holding that a document prepared by the City was privileged. He stated that Cleveland wished to have the Report reviewed. The Chairma:. inquired whether the parties could supply a specific list detailing possible errors of this nature.

Mr. Charno stated that the degree of error appeared to be far broader than could be democstrated by merely listing the clear errors contained in the attachments to the Report. He noted, however, that over 10L documents were held to be privileged on grounds other than the ones asserted by Applicants; that the Master made no rulings at all concerning 26 documents; that the Paster both granted and denied claims of privilege for some docu-ments; and that the Report contained rulings on nonexistent docu-ments.

Fe. Charno stated that the conclusorv nature of the Report, which lc.cked specific factu=1 rind 'gs a 5 detailed legal con-clusicas, made the challenge of oth. r p; ,bable errors extremely diffic alt. Mr. Goldberg stated that certain documents for which the auth'or and addressee were unknown had been held by the Master to be communications among attorneys.

Mr. Lessy reserved comment since the NRC Staff had not ,

participated in the briefing.

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2r. Reynolds indicated that all documents for which CEI had waived privilege would be produced. He further indicated that.

the waiver of privilege was not necessarily inconsistent with a finding by the Master that a privilege applied. Mr. Reynolds also stated that he believed the work product and attorney-client privilege had been' claimed for all documents. He noted that the .

December 10, 1974 Board Order, which appointed the Special Master, i appeared to state that the parties agreed to be bound by the decision of the Master. He stated that he did not want the Master's decision reopened or the Board to go over the Master's ,

work product. Mr. Rigler asked Mr. Reynolds if the Applicants were willing to produce documents for which the Master found no privilege applicable. Mr. Reynolds indicated that one copy of j

the documents listed on Attachment No. 4 to the Rcport would be produced in Cleveland on Wednesday and that the Master's copies of such documents could be placed in the Washington, D.C.,

depository.

Mr. Goldberg indicated that he interpreted the agreement cited in the December 10 Order as saying that no one would seek review by the Licensing Board, not that any review by the Appeal Board was waived. Mr. Lessy indicated that the Master's decision was an interlocutory decisien which could not be appealed without certification by the Licensing Board.

Mr. Rigler stated that for certain categories of documents, there appeared to be no problems. For example, no problem existed with respect to the document authored by the City of Cleveland i

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. . e because the City already had a copy. As to th3 documents for which CEI waived privilege, no problem would exist because those documents wourd be turned over to the other parties. As to docu- y ments where the granted privilege had not been claimed, there was a pr.oblem which would have to be resolved.

Mr. Lessy indicated that a motion for reconsideration by the Master might be in order. Mr. Goldberg ' stated that reconsidera-tion by the Master should be requested as a first step toward appeal. Mr. Reynolds stated that he wanted the right to reserve .

an appeal by the Applicants and that the original agreement was made to avoid delay. Mr. Goldberg and Mr. Reynolds had a brief discussion en their disagreement on the interpretation of the December 10 Order. Mr. Goldberg indicated that former Chairman Formakides had been concerned that the Licensing Board would have to review all allegedly privileged documents, but that the agreement did not constitute a waiver of the right to appeal to an Appeal Board. Mr.' Rigler indicated his preliminary feeling that if certification of the issue was to be requested, it would be denied since he saw nothing of sufficient magnitude to require consideration by the Appeal Board. He did, however, indicate that'either the Master or the Licensing Board might make a limited

? review of the Report; and he wanted the parties to list the plain or apparent errors in the Report.

Mr. Goldberg indicated that this procedure might have an )

l effect on the depositions presently being taken, but that the parties should endeavor to prevent resolution of this issue from 4

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'dela'ying these depositions. He suggested that the depositions continue and that these people be recalled later for further deposition on matters contained in any sub'sequently disclosed documents. The Department and the Staff agreed to this.

Mr. Reynolds indicated that the Applicants also wanted to ask for recensideration. Mr. Reynolds said he did not have the exact. number of documents for which he would challenge the decision of the Special Master, but there was one category as to which he took exception. He believed it was Part 1 of Attach- .

ment No. 4. The Applicants were wilAing to specifically designate documents of which they would request rcconsideration.

Mr. Rigler indicated that the Master may have made a few

- minor errors, such as finding privilege to apply on dccuments for which Applicants had waived any privilege. He also indica *:ed that the Master and/or the Licensing Board should review the l aport to climinate such possible errors. He further indicated that the agreement cited in the December 10 Order obviously had to con-template the presence of certain minor errors and that these wou'1d be reviewable. He stated that he had seen certain documents in Part 1 of Attachment No. 4 and believed that these documents, which related to negotiating strategy involved in this case, should not have been found to'be nonprivileged. He suggested that they may well'be found to be privileged.

Mr. Lessy suggested that possibly a special appellate master should be appointed to review the errors. Mr. Rigler again stated that perhaps a limited review by the Special Master on specific 5

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documents would be in order, but not a blanket review. Mr. Rigler asked if Mr. Reynolds would be willing to release all documents, except those in Part 1 of Attachment No. 4. Mr. Reynolds indi-cated that there may be similar documents in Parts 2 and 3 of Attachment No. 4 and that he did not want those released.

Mr. Rigler asked if the parties were seeking correspondence between CEI and Mr. Reynolds' law firm. Mr. Goldberg indicated that he did not know what was in those documents, and he could not say whether he wanted them or not. Mr. Lessy stated that ,

perhaps a briefing for the Master or a limited hearing before the Master would be in order. Mr. Charno said that since h'e did not know whether the documents contained nonprivileged portions relating to the case, he was unable to determine whether the Department would seek their production. Mr. Charno stated that if they relate solely to facts, they should be nonprivileged; if they relate merely to strategy, that may be another question.

Mr. Rigler suggested that he would like to speak to the Special Master and other members of the Board and reconvene the conference telephone call at 4:30 p.m.

The parties were unable to reconvene the conference call until 9:30 a.m. on June 24, 1975.

Mr. Rigler stated that he' had consulted with the full Board, and that it was decided that the parties should be held to their prior agreement to be bound by the decision of the Master. However, he continued that Mr. Coufal, the Mast?r, had acknowledged that he may have made a few miscategorizations of documents and that he 6

was willing to make himself available for a one-day hearing on the Report. Mr. Rigler stated that he hoped Mr. Coufal would be able to make on-the-spot rulings on any objections to his findings.

Mr. Goldberg inquired whether presently scheduled depositions should proceed with reservation of the right to recall any witnesses for further deposition if new areas of inquiry were disclosed by subsequently released documents. Mr. Rigler ruled that the pro-cedure should be followed.

After a discussion on scheduling, it was decided to set a tentative hearing date of June 30, 1975 with an alternate date of July 10, 1975, based on the availability of Mr. Couf al. Mr. Rigler stated that the parties will be informed of the hearing date by Mr. Lessy.

Respectfully submitted,

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STEVEN M. CHARNO Attorney, Antitrust Division Department of Justice Washington, D.C. 20530 June 26, 1975 I

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, UNICED STATES OF MIERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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The Toledo Edison Company )

The Cleveland Electric Illuminating ) Docket No. 50-346A

.. Company )

(Davis-Besse duclear Power Station) )

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The Cleveland Electric Illuminating )

Company, et al. ) Docket Nos. 50-440A (Perry Nuclear Power Plant, ) and 50-441A .

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of MINUTES OF CONFERENCE CALL WITH BOARD CHAIRMAN ON JUNE 24, 1975 have been served upon all of the parties listed on the attachment hereto by deposit in the United States mail, first class or airmail, this 26th day of June 1975.

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Steven M. Charno Attorney, Department of Justice Antitrust Division 4 i

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ATTACHMENT t

Douglas Rigler, Esquire '

Chairman

• Benjamin H. Vogler, Esquire Roy P. Lessy, Jr., Esquire Atomic Safety and Licensing Board Office of rhe General Counsel Foley, Lardner, Hollabaugh Nuclear Regulatory Commission

-& Jacobs Washington, D.C. 20555 815 Connecticut Ave., N.W.

Washington, D.C. 20006 Gerald Charnoff, Esquire i William Bradford Reynolds, Esquire John H. Brebbia, Esquire Shaw, Pittman, Potts & Trowbridge Atomic Safety and Licensing 910 Seventeenth Street, N.W.-

Washington, D.C. 20006 Board

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Alston, Miller & Gaines 1776 K Street, N.W. Lee C. Howley, Esquire l Washington, D.C. 20006 Vice President & General Counsel The Cleveland Electric John M. Frysiak, Esquire Illuminating Company Atomic Safety and Licensing Post Office Box 5000 .

l Board Panal Cleveland, Ohio 44101

- Nuclear Regulatory Commission Washington, D.C. 20555 Conald H. Hauser, Esquire Corporate Solicitor Atomic Safety and Licensing The Cleveland Electric Board Panel Illuminating Company Nuclear Regulatory Commission Post Office Box 5000 Washington, D.C. 20555 Cleveland, Ohio 44101 Frank W. Karas John Lansdale, Jr., Esquire Chief, Public Proceedings Cox, Langford & Brown Staff 21 Dupont Circic, N.W.

Office of the Secretary Washington, D.C. 20036 Nuclear Regulatory Commission Washington, D.C. 20555 Chris Schraff, Esquire Office of Attorney General State of Ohio j Abraham Braitman j Office of Antitrust-and State House Columbus, Ohio 43215 Indemnity Nuclear Regulatory Commission Washington, D.C. 20555 Karen H. Adkins, Esquire l Assistant Attorney General Herbert R. Whitting, Esquire Antitrust Section Robert D. Hart, Esquire 30 East Broad Street

- Law Department 15th Floor City Hall _

Columbus, Ohio 43215 Cleveland, Ohio . 44114 Leslie Henry, Esquire

.Reuben Goldbarg, Esquire Fuller, Henry, Hodge David C. Hjelmfelt, Esquire & Snyder 1700 Pennsylvania Avenue, N.W. 300 Madison Avenue Suite 550 Toledo, Ohio 43604 >

l Washington, D.C. 20006 -

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e Thomas A. Kayqba, Esquire Ohio Edison Company

. 47 North Main Street Akron, Ohio. 44308 .

David M. Olds, Esquire Reed, Smith, Shaw & McClay 747 Union Trust Building Pittsburgh, Pennsylvania 15219 Mr. 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 -

& Palmcr 1700 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 Ecwarc A. Matto, Esquire Assistant Attorney General Chief, Antitrust 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 P. Greenslade, Jr., Esquire Principal Staff Counsel The Cleveland Electric.

Illuminating Company

. Post Office Box 5000 .

Cleveland, Ohio 44101 e

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