ML19329D028

Objections to Applicants Exhibits,Motion to Strike & Alternative Request for Hearing Date to Offer Rebuttal Testimony.Certificate of Svc Encl

ML19329D028
Person / Time
Site:	Perry, Davis Besse
Issue date:	07/15/1976
From:	Campanella V, Goldberg R, Hjelmfelt D CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002240037
Download: ML19329D028 (15)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION j

Before the Atomic Safety and Licensing Board

'l In the Matter of

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%a Toledo Edison Company and

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Docket Nos. '_50-34hA-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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CITY OF CLEVELAND'S OBJECTIONS TO APPLICANTS' EXHIBITS, MOTION TO STRIKE AND ALTERNATIVE REQUEST FOR A HEARING DATE TO OFFER REBUTTAL TESTIMONY By letter of July 8,1976, Applicants served on the Board and all parties copies of proposed Exhibit Nos. 278 through 282.1 For the reasons stated below, City of Cleveland (City) objects to the admission of Exhibit Nos. 213, 278, 280, 281, 282, and 283.

Applicants' Exhibit No. 278. City objects on the grounds of rele-s Moreover, Applicants' Exhibit No. 278 contains obvious hearsay

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vance.

1/ Exhibit No. 283, a cassette recording purportedly of a portion of a tape of the March 5,1974 meeting of the Finance Committee of the Cleveland City Council, was served only on the Board Chairman.

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8002240o3 9 M

, prepared the transcription, or that she compared the transcription to either the original of the tape or a copy of the tape. In short, there is no state-ment that Ms. Coll has personal knowledge of the matters contained in the

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tape. The record demonstrates that in the past CEI has not hesitated to file affidavits with the Commission sworn to by persons having no personal knowledge of the contents thereof (Tr. 12,474).

Further, a comparison of Applicants' Exhibit No. 282 with Appli-cants' Exhibit No. 281, an earlier transcript of the same proceeding, shows changes which are totally without explanation. Did Ms. Coll prepare Exhibit No. 282 ? Did she make the corrections ? Entire phrases which appear in Exhibit No. 282 do not appear in Exhibit No. 281. Words in some instances are deleted from Exhibit No. 282 and at the points of deletion Exhibit No.

281 indicated " break". Does " break" mean material deleted, inaudible material, or material that simply was not recorded ?

In a paragraph appearing on page 4 of Exhibit No. 282 there is an indication that Mr. Kudukis's statement was interrupted. That same paragraph on page 5 of Exhibit No. 281 does not show an interruption but i

l instead shows a " break".

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Similarly, a comparison of Mr. Gaul's statement on page 7 of l

Exhibit No. 282 with the same statement appearing on page 8 of Exhibit No. 281 demonstrates that statements which may have been inaudible or i

I garbled on the copy of the tape have simply been deleted and the word

" break" inserted in Exhibit No. 281.

' Finally, there is no evidence at all that the copy of the tape from

'which the transcript was made was a complete copy of all relevant portions of the statements made by Mr. Kudukis. Nor is there any statement as to who prepared the copy from which the transcript was made or how the copy was made. Nor ie there any evidence that Applicants' Exhibit No. 281 is not merc.ly a " cleaned-up" copy of Applicants' Exhibit No. 282.

Applicants' Exhibit No. 282. If Applicants' Exhibit No. 281 is not admitted, Applicants' Exhibit No. 282 should not be admitted. In Mr. Reynolds' letter of July 8,1976, Exhibit No. 282 is described as "the transcription containing handwritten notes". Applicants' Exhibit No. 278 describes Exhibit No. 282 as follows: "Also enclosed is a copy of an earlier transcript that was made of the recording. The handwritten notes indicate certain inaccuracies in the earlier transcript. "

The record is devoid of any evidence as to who prepared Applicants' Exhibit No. 282, when it was prepared, w' ten the handwritten corrections were made, who made the handwritten corrections, or even whether Appli-cants' Exhibit No. 282 was n,ade from the same tape as Applicants' Exhibit No. 281.

Standing alone, Applicants' Exhibit No. 282 should not be admitted.

However, if Applicants' Exhibit No. 281 is admitted, Applicants' Exhibit No. 282 should be admitted to complete the record.

Applicants' Exhibit No. 283. City objects to Applicants' Exhibit

- No. 283 as a less than complete, frequently inaudible copy of a tape of a b

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. hearing before a committee of the Council of the City of Cleveland. There is no evidence which would indicate how, when, or by wh.om the copy was made or whether this is a copy of the original or a copy of a copy. 2/ It appears that the entire discussion may not have been recorded by CEI.

As noted above Applicants' Exhibit No. 280 is insufficient to support admission of Applicants' Exhibit No. 283.

Applicants' Exhibit No. 213. Applicants' Exhibit No. 213 has been offered and rejected on at least two previous occasions. By Mr. Gaul's own admission it is inaccurate on its fact. Mr. Gaul did not prepare the i

i affidavit and merely relied on his recollection of events occurring more than two years previously to determine whether the affidavit was accurate.

Moreover, his recollection was refreshed by being shown the Hauser pre-pared affidavit. Thus, Applicants' Exhibit No. 213 is not even an unrefreshed recollection of conversations occurring two years previously.

City objects generally to Applicants' Exhibit Nos. 213 and 278 through 283 and moves to strike the testimony of Mr. Gaul (Tr. 12,427-12,459) and the testirnony of Mr. Hauser (Tr. 12,467-12,475) on the following grounds.

On August 26, 1974, the City timely filed its request for document production by CEI. City Request 90 called for the production of:

Documents _/ concerning the March 4,1974, and 3

March 5,1974, meeting of the Public Utilities Com-mittee of the Council of the City of Cleveland and the FNnce Committee of the Council of the City of

~[ City Council of Cleveland uses a permanently installed sound scriber 2

system which records on 2-inch wide belts. Any cassette recording, therefore, is only a copy of the original. Counsel for the City has not besI3 able to listen to the cassette as of the date of this motion.

3/ " Documents" was broadly defined to include recordings or transcriptions.

Cleveland, including documents concerning contacts with Mr. Francis E. Gaul and Mr. Michael Zone or any other person either before or after.the public hearings pertaining to matters discussed at those hearings or in any way connected with the allegations contained in Mr. Howley's affidavit filed on March 27, 1974, in these procee' dings.

City request No. 24 called for production of:

Documents concerning the request made by the City of Cleveland for membership in CAPCO, including correspondence with and among other members of CAPCO pertaining thereto.

Neither discovery request was objected to by CEI. During discovery CEI did not produce any transcripts or recordings of the March 5,1974, meeting of the Finance Committee of the Cleveland City Council. Such documents were clearly called for by both Request Nos. 90 and 24.

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On December 1,1975, CEI filed its list of proposed exhibits. None of the 211 documents listed has any relationship to the March 4, 1974, or March 5,1974, council committee meetings. A/

On December 1,1975, CEI filed a list of proposed witnesses and their expected testimony. Again no reference to the March 4,1974, or March 5,1975, council committee meetings appears.

On December 1,1975, CEI filed its prehearing brief. CEI relies upon page 8 of its brief as injecting the statements of Mr. Kudukis into these proceedings (Tr.11,982). The only statement on page 8 of CEI's prehearing brief which even remotely bears on the issue for which these e

' exhibits are offered is the final sentence on the page which states in its entirety:

4_/ On December 8,1975, CEI added to its list of proposed exhibits. The additional document in CEI's December 8 filing does not relate to the March 4 and 5 committee meetings.

• CEI questions whether Cleveland is really interested in such participation, and whether Cleveland has sought to negotiate in good faith with CEI on these matters.

A slender reed indeed for the last-minute interjection of a patently absurd issue. Whatever CEI had in mind on page 8 of its prehearing brief, it clearly was not the March 4 and 5 committee meetings, for CEI on December 1,1975, listed neither documents nor testimony to support an allegation based on the March 4 and 5 statements.

The Department of Justice called Mr. Hart from the City Law Department to testify to a broad range of subjects including negotiations for ownership participation. Mr. Hart was cross-examined over a period of days but was not asked a single question about the March 4 and 5 com-mittee meetings.

City witness Mr. Mayben offered exper^ testimony regarding the City's need and desire for participation in nuclear units and was not asked a single question about the March 4 and committee meetings.

3 Mr. Hauser, author of the Howley affidavit, author of the Gaul affidavit (Applicants' Exhibit No. 213), and apparently custodian of the s

recording (Applicants' Exhibit No. 283), was called by CEI to testify and said not a word about the March 4 and 5 committee meetings.

Nor can CEI argue that it intended all along to rely on the Hauser-drafted Gaul affidavit (Applicants' Exhibit No. 213). Mr. Hauser has testi-fled as to the circumstances surrounding preparation of the Gaul affidavit (Tr. 12,467-12,468):

_ Q. Will you explain to the Board how it came about that you made that request of Mr. Gaul.

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Yes.

Carl Steinhouse and Joe McEntee, attorneys with the firm of Jones and Day who represent Ohio Edison in the civil antitrust case in the Federal District Court in Cleveland, asked if I would contact Mr. Gaul to give an affidavit concerning the subject matter to support their motion on behalf of Ohio Edison for summary disposition of the case filed by the City of Cleveland against Ohio Edison.

The Gaul affidavit was not executed until June 10, 1976, and could not have been contemplated when CEI filed its prehearing brief. Furthe r, as Mr. Hauser's testimony makes clear, it was not even CEI's idea to obtain the affidavit. Obviously the March 4 and 5 committee meetings were injected into this case as a last ditch afterthought when it became apparent 1

that all of CEI's seriously asserted defenses had crumbled.

In the past this Board has not hesitated to exclude from evidence matters not raised by the pleadings. 5 / CEI has failed to show cause why a different rule should apply to it as an applicant for a license, nor has CEI shown good cause for escaping the rule. CEI had full knowledge of the events of March 4 and 5 within one or two days after March 5 (Tr. 12,440) and, hence, cannot claim that it was not previously aware of the matter.

Nor do the offered testimony and exhibits provide probative evidence.

CEI's offer of proof which appears at Tr. 11,980-11,981 is that:

5_/ The Board refused to admit testimony of Mr. Kudukis on the grounds that it was not mentioned specifically in the City's September 5,1975 filing (Tr. 7499).

We would offer this evidence to show that the City was not sincere in its request for membership or for ownership participation, that it knevi at the time it made its request that it was not practical for it to participate as a member or participate in ownership and that further, as of the March 174 date of the meeting that the City itself did not understand that there had been any refusal whatsoever with regard to its request but indeed that it was continuing to rely on its outstanding request as a bargaining ploy, if you will, vis-a-vis its negotiations for settlement in this proceeding with The Cleveland Electric Illuminating Company.

Even accepted at face value, the proferred evidence does not meet the offer of proof._/When considered in light of the City's 5-year participation in these 6

proceedings including four matters which have gone to the Appeal Board and one issue taken to the U.S. Court of Appeals and the City's participation in the taking of more than 60 depositions, the examination of 2,300,000 pages of documents, attendance and active participation in nearly 70 days of hearings which have compiled a record thus far of 12,710 pages and 1,306 exhibits, the assertion that the City is engaged in a sham request which is no more than a bargaining ploy is ridiculous. It is so ridiculous that even CEI did not raise it until all else had failed. For all of de foregoing reasons the proffered exhibits should be rejected and the testimony of Messrs. Gaul and Hauser should be stricken.

Also relevant is the fact that the City has been precluded from obtaining discovery into the relationships between CEI and City Council.

The record does show that Mr. Gaul accepted gifts from CEI (Tr. 12,452-12,453) as did other members of the Council (Tr.

10,856

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6/ City's Exhibit C-163 was rejected because it merely represented PASNY's position taken for purposes of litigation and therefore was not probative of PASNY's real intent. A fortiori, evidence relating to Mr. Kudukis's state-ments before the Cleveland legislative body must be rejected as having no orobative value.

The record shows that employees of CEI assisted Mr. Gaul in writing speeches and preparing exhibits (Tr. 12,449-12,451,.DJ Ex. 623). The record does show that Mr. Gaul was stimulated by Mr. Howley to ask questions of Mr. Kudukis (Tr. 12,436). The record discloses that Mr.

Gaul may even have consulted with Mr. Howley between the unrecorded

-March 4 committee meeting and the recorded March 5 committee meeting (T r. 12, 4 56). Mr. Gaul was in constant discussion with Mr. Howley during this time period (Tr. 12,456), and committee meetings were seldom recorded (Tr.12,439). The recording was made available to CEI one or two days after the March 5 committee meeting (Tr. 12,440), but the City administration ;vas unable to obtain a copy of the recording. It is patently unfair for CEI to claim a Noerr-Pennington privilege on one hand and to offer evidence of City Council matters with the other.

In the event the Board admits Applicants' proffered exhibits, City asks that the Board set a hearing date at which the City can present rebuttal te stimony. City would also urge that its outstanding motion to reopen dis-covery be granted. City believes the tendered evidence has no probative value but if the evidence is admitted, the nature of the evidence compels i

City to offer rebuttal testimony.

WHEREFORE, City objects to Applicants' Exhibit Nos. 213, 278, 4

and 280 through 283 specifically, and generally to Nos. 213 and 278 through 283 and moves to strike the testimony of Mr. Gaul appearing at transcript pages 12,427-12,459 and the testimony of Mr. Hauser appearing at

. transcript pages 12,467-12,475. In the alternative, City prays that the Board set a hearing date for the presentation of rebuttal evidence and that the City's outstanding request to reopen discovery be granted.

Respectfully submitted, Reuben Goldber David C. Hjelmfelt Goldberg, Fieldman & Hjelmfelt 1700 Pennsylvania Avenue, N. W.

Washington, D. C.

20006 Telephone (202) 659-2333 Vincent C. Campanella Director of Law 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 July 15,1976 i

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CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing City of Cleveland's Objections to Applicants' Exhibits, Motion to Strike and Alternative Request for a Hearing Date to Offer Rebuttal Testimony on the parties listed on the attachment this 15th day of July,1976, by depositing copies in the United States mail, first class postage prepaid, or by hand delive ry.

David C.

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ATTACHMENT Douglas V. Rigler, Esq. Chairman Christopher R. Schraff, Esq.

Atomic Safety and Licensing Board 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 Washington, D. C.

20555 Richard S. Salzman Jerome E. Sharfman Andrew C. Goodhope, Esq.

Atomic Safety and Licensing Appeal Board 3320 Estelle Terrace U.S. Nuclear Regulatory Commission Wheaton, Maryland 20906 Washington, D. C.

20555 Robert M. Lazo, Esq., Chairman Howard K. Shapar, Esq.

Atomic Safety and Licensing Board Panel Executive Legal 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. Karas, Chief Atomic Safety sud Licensing Board Panel Public Proceedings Branch U.S. Nuclear Regulatory Commission Office of the Secretary Washington, D. C.

20555 U.S. Nuclear Regulatory Commission Washington, D. C.

20555 Atomic Safety and Licensing Appeal Board Panel Abraham Braitman, Esq.

U.S. Nuclear 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 Special Assistant Attorney General U. S. Nuclear Regulatory Commission Towne House Apartments, Room 219 Washington, D. C.

20555 Harrisburg, Pennsylvania 17105 Benjamin H. Vogler, Esq.

Edward A. Matto, Esq.

Robert J. Verdisco, Esq.

Assistant Attorney General Roy P. Lessy, Jr., Esq.

Chief, Antitrust Section Office of the General Counsel 30 East Broad Street, 15th floor Regulation Columbus, Ohio 43215 U. S. Nuclear Regulatory Commission Washington, D. C.

20555

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ATTACHMENT (continued)

Melvin G. Berger, Esq.

David McNeill Olds, Esq.

Joseph J. Saunders, Esq, William S. Lerach, Esq.

Steven M. Charno, Esq.

Reed, Smith, Shaw & McClay David A. Leckie, Esq.

Post Office Box 2009 Janet R. Urban, Esq.

Pittsburgh, Pennsylvania 15230 Antitrust Division j

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 i

Richard M. Firestone, Esq.

i Assistant Attorneys General Alan P. Buchmann, Esq.

Antitrust Section Squire, Sanders & Dempsey 30 East Broad Street, 15th floor 1800 Union Commerce Building l

Columbus, Ohio 43215 Cleveland, Ohio 44115 Russell J. Spetrino, Esq.

Leslie Henry, Esq.

Thomas 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 2088 Toledo, Ohio 43604 John Lansdale, Jr., Esq.

Cox, Langford & Brown James R. Edgerly, Esq.

21 Dupont Circle, N. W.

Secretary and General Counsel l

Washington, D. C.

20036 Pennsylvania Power Company One East Washington Street Richard A. Miller, Esq.

New Castle, Pennsylvania 16103 Vice President and General Counsel

.l The Cleveland Electric Illuminating Co.

Donald H. Hauser, Esq.

Post Office Box 3000 Victor A. Greenslade, Jr., Esq.

Cleveland, Ohio 44101 The Cleveland Electric Illuminating Co.

Post Office Box 5000 Gerald Charnoff, Esq.

Cleveland, Ohio 44101 Wm. Bradford Reynolds, Esq.'

Thomas J. Munsch, Jr., Esq.

Robert E. Zahler, Esq.

Jay H. Berstein, Esq.

General Attorney

~ Shsw, 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 U. S. Nuclear Regulatory Commission Office of the Secretary Washington, D. C.

20555 U. S. Nuclear Regulatory Commission Washington, D. C.

20555 l

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, ATTACHMENT (continued)

Joseph A. Rieser, Esq.

Reed, Smith, Shaw & McClay 1155 Fifteenth Street, N. W.

Washington, D. C.

20005 John C. Engle, President AMP-O, Inc.

• 20 High Street Hamilton, Ohio 45012 Michael R. Gallagher, Esq.

630 Bulkley Building 1501 Euclid Cleveland, Ohio 44115 9

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