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UNITED STATES OF AMERICA h -3 O ~ |--NUCLEAR REGULATORY COMMISSION

Before the Atomic Safety and Licensing Board

In the Matter of ) _ _,- 3yDocket No( 5_0 w 1The Toledo Edison Company ) _

500A50-The Cleveland Electric 111uminating )Company ) 50-501A

(Davis-Bes se Nuclear Power Station, )Units 1, 2 and 3) )

)The Cleveland Electric Illuminating ) Docket Nos. 50-440A

Company, et al. ) 50-441A(Perry Nuclear Power Plant, )

Units 1 and 2) )

MOTION OF THE CITY OF CLEVELAND FORREVIEW OF THE DECISIONS OF THE SPECIAL MASTER

ENTERED JUNE 19, 1975 AND JUNE 30, 1975

On June 19, 1975 and June 30, 1975, the Special Master in these

proceedings entered his decision with respect to certain claims of privilege

asserted by The Cleveland Electric Illuminating Company (CEI) with respect

to documents responsive to discovery requests of the City of Cleveland

(Cleveland). By motion of July 8,1975, Cleveland, pursuant to its under-

standing of the Boards order of December 10, 1974, requested the Board

to certify the Special Master's decision to the Appeal Board for review on

the merits. Cleveland sought certification rather than review by the Board

because it understood the Board's order of December 10, 1974 to foreclose

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review by the Board but not by the Appeal Board. On July 21,1975, the

Board denied Cleveland's motion for certification. Cleveland then noticed

an appeal and filed exceptions to the Board's ruling of July 21, 1975. The

Appeal Board subsequently exercised its discretion to grant interlocutory

review and upon review held that Cleveland was precluded from seeking

review at any time by any reviewing body by virtue of the agreement it

found Cleveland bad entered into. M n the light of recent events whichI

have occurred during the hearing in &is matter, Cleveland now requests'

the Board to review the decisions of the Special Master.

In its order of September 19, 1975, de Appeal Board intimated'|

I (mimeo. p. 4) that this Board might exercise its own discretion to reviewi'

the Special Master's rulings. The Board itself recognized that if any

review were to be had it should be by the Licensing Board (Decision of

July 21, 1975, mimeo. p. 6). The Board, however, noted that the agree-

ment of the parties was a binding waiver of the right to review (mimeo. p. 9).

The agreements / of the parties to be " bound" by the decision of the

Special Master was net the only agreement entered into by the parties to

this proceeding. On March 29, 1974, Applicants agreed with the other

parties that cross-examination would be conducted by a single attorney for

the Applicants and that Applicants would file a single prehearing brief. 3 /

1/ Appeal Board decisions of September 19, 1975 and November 28, 1975.Cleveland appealed the Appeal Board's decision to the U. S. Court ofAppeals for the District of Columbia Circuit, No. 75-2115.

1/ Cleveland does not believe there was such an agreement but for purposesof dis motion will assume, arguendo, that such an agreement was made.

3_/ Statement On Consolidation Procedures, dated March 29, 1974 and signedby Mr. Charnoff for de Applicants.

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At no time did Applicants seek to modify this agreement. Nor have they,

ever claimed that the agreement was invalid. Despite their solemn agree-

ment to the contrary, they proceeded to file separate prehearing briefs.

By motion of November 20, 1975, Cleveland brought to the Board's

attention Applicants' agreement to file a single prehearing brief and

requested an order of the Board requiring the Applicants to abide by their

solemn agreement. At a prehearing conference of November 26, 1975,,

the Chairman noted the correctness of Cleveland's position but declined to

enter what by that time was a futile, unenforceable order.

Also, at the November 26,1975 prehearing conference Applicants

made it known that they had no intention of fulfilling their agreement to

proceed by only one counsel during cross-examination. On Dec ember 3,

1975, Cleveland filed its Answer to Applicants' Statement of Procedural

Matters to be Considered (incorporated herein by reference), again bring-

ing to the Board's attention Applicants' agreement to proceed by a single

counsel 3uring cross-examination.

Cleveland again raised the matter of Applicants' agreement to

cross-examine by only one counsel during the second day of hearing. 4/

Applicants first stated they did not understand how Cleveland came to<

5_/understand that Applin 2nts would proceed pursuant to their agreement.

Then, in response to the Chairman's question "How do you avoid the effect

of your own March 29 agreement?" Applicants responded by saying thati

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4/ Tr. 1764-1769.5_/ Tr. 1765.

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when the agreement was made they did not know what the case was all

about. kl

On December 16, 1975, during the cross-examination of Mr. Lyren,

the matter first arose in a context requiring the Board to rule directly on

the question of whether Applicants, like Cleveland, would be required to:

' abide by their agreement. Mr. Steven Berger, representing Chio Edison,

cro ss-examined Mr. Lyren. Following the completion of Mr. Berger's

cross-examination, Mr. Lerach, representing Duquesne Light, undertook

to cros s -examine Mr. Lyren. At that point, Cleveland again objected to

cross-examination by more than one counsel for Applicants.

It is now clear from the record that Applicants are not to be held

to their agreement regarding procedures to be followed in this proceeding.

Cleveland believes that it is manifestif unfair and unjust for it to be

required to conform to an agreement, which it disputes was made, while

Applicants are free to ignore an agreement which they have never denied

making or suggested was ambiguous.

If evenhanded fairness is to be done all parties, Cleveland must be

granted review on the merits of the decisions of the Special Master. No

delay need be occasioned thereby for the matters have been fully briefed.

The Board may make its decision on the briefs previously filed by the

partie s.

p/ Applicants have raised a similar argument repeatedly for a variety ofreasons. On each occasion the Board has rejected the argument asinvalid and contrary to fact.

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WHEREFORE, Cleveland prays that the Board review the meritsi

of the Special Master's decision with respect to documents claimed

privileged by CEI.

Respectfully submitted,

C[ eta F.-

|Tv wAf Yki.4

Reuben Goldb/rg/;/ .-(fDavid C. '.-IjelmfeltGoldberg, Fieldman & Hjelmfelt1700 Pennsylvania Avenue, N. W.Was hington, D. C. 20006Telephone (202) 659-2333 t

James B. Davis,

Director of LawRobert D. HartFirst Assistant Director of Law

City of Cleveland

| City Hall, Room 213Cleveland, Ohio 44114Telephone (216) 694-2737

iAttorneys for

City of Cleveland

| December 30, 1975

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CERTIFICATE OF SERVICE ;

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I I hereby certify that service of the foregoing Motion of the City ofi

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Cleveland for Review of the Dectstons or the Special Master Entered,

| June 19,1975 and June 30, 1975 has been made on the following partiesr

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: listed on the attachment hereto this 30th day of December, 1975, by2

depositing copies thereof in the United States mail, first class postage

I prepaid, or by hand delivery,

db 44 |ctL//Reuben Goldb[g

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Attachmenti

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ATTACHMENT! r

Douglas V. Rigler, Esq. , Chairman Ivan W. Smith, Esq. ,Atomic Safety and Lice.nsing Board John M. Frysiak, Esq. >Foley, Lardner, Hollabaugh and Jacobs Atomic Safety and Licensing Board !815 Connecticut Avenue, N. W. U. S. Nuclear Regulatory Commission '

| Washington, D. C. 20006 Washington, D. C. 20555i

! Alan S. Rosenthal, Chairman Richard S. Salzman, Chairman1 Atomic Safetf and Licensing Appeals Board Atomic Safety and Licensing Appeals Board; U. S. Nuclear Regulatory Commis sion U. S. Nuclear Regulatory Commission,' Washington, D. C. 20555 Washington, D. C. 205551

| Dr. John H. Buck Michael C. Farrar

! Dr. Lawrence K. Quarles Dr. W. Reed Johnson|

Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Board: U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commis sion

Washington, D. C. 20555 Washington, D. C. 20555>

Howard K. Shapar, Esq. Andrew F. Popper, Esq.

| Executive Legal Director Jack R. Goldberg, Esq. I

1 U. S. Nuclear Regulatory Commission Office of the Executive Legal DirectorWashington, D. C. 20555 U. S. Nuclear Regulatory Commis sion i

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Washington, D. C. 20555,Mr. Frank W. Karas, ChiefPublic Proceedings Branch Benjamin H. Vogler, Esq.Office of the Secretary Joseph Rutberg, Esq.U. S. Nuclear Regulatory Commission Robert J. Verdisco, Esq.Washington, D. C. 20555 Roy P. Lessy, Jr. , Esq.

Office of the General CounselAbraham Braitman, Esq. RegulationOffice of Antitrust and Indemnity U. S. Nuclear Regulatory Commission

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

i Melvin C. Berger, Esq.Frank R. C1okey, Esq. Jo s e ph J. Saunde r s , Esq.

,

j Special Assistant Attorney General Steven M. Charno, Esq.' Towne House Apartments, Room 219 David A. Leckie, Esq.

Harrisburg, Pennsylvania 17105 Janet R. Urban, Esq.Ruth Greenspan Bell, Esq.

Edward A. Matto, Esq. Antitrust DivisionAssistant Attorney General Department of JusticeChief, Antitrust Section Post Office Box 751330 East Broad Street, 15th floor Washington, D. C. 20044Columbus, Ohio 43215

Karen H. Adkins, Esq.,

| Christopher R. Schraff, Esq. Richard M. Firestone, Esq.I Assistant Attorney G .2eral Assistant Attorneys General

Environmental Law Section Antitrust Section361 East Broad Street, 8th floor 30 East Broad Street, 15th floor

| Columbus, Ohio 43215 columbus, Ohio 43315

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Page 2 ATTACH 1..ZNT (Continued)

P.us sell J. Spetrino, Esq. Leslie Henry, Esq. jThomas A. Kayuha, Esq. Michael M. Briley, Esq. |Ohio Edison Company Ro ger P. Klee, Esq.47 North Main Street Fuller, Henry, Hodge & Snyder-Akron, Ohio 44308 Post Office Box 2088

Toledo, Ohio 43604John Lansdale, Jr. , Esq.Cox, Langford & Brown James R. Edgerly, Esq.21 Dupont Circle, N. W. Secretary and General CounselWashington, D. C. 20036 Pennsylvania Power Company

One East Washington StreetLee C. Howley, Esq. New Castle, Pennsylvania 16103Vice President and General CounselThe Cleveland Electric Illuminating Co. Donald H. Hauser, Esq.Post Office Sox 5000 Victor A. Creenslade, Jr. , Esq.Cleveland, Chio 44101 The Cleveland Electric Illuminating Co.

Post Office Box 5000Ge: aid Charnoff, Esq. Cleveland, Ohio 44101Wm. Bradford Reynolds, Esq.Shaw, Piaman, Potts & Trowbridge Thomas J. Munsch, Jr. , Esq.010 Seventeenth Street, N. W. General AttorneyWashington, D. C. 20006 Duquesne Light Company

435 Sixth AvenueDavid McNeill Olds, Esq. Pittsburgh, Pennsylvania 15219William S. Lerach, Esq.Reed, Smith, Shaw & McClay Jo s eph A. Rieser, Esq.Post Office Sox 2009 Reed, Smith, Shaw & Mc ClayPittsburgh, Pennsylvania 15230 1155 Fifteenth Street, N. W.

Washington, D. C. 20005Terrence H. Benbow, Esq.Winthrop, Stimson, Putnam & Roberts John C. Engle, President40 Wall Street AMP-O, Inc.,New York, New York 10005 20 High Street

Hamilton, Ohio 45012Jon T. Brown, Esq.Duncan, Brown, Weinberg & Palmer Atomic Safety and Licensing Board Panel1700 Pennsylvania Avenue, N. W. U. S. Nuclear Regulatory CommissionWashington, D. C. 20006 Washington, D. C. 20555

Dc cketing and Service Section Atomic Safety and Licensing Appeal |Office of the Secretary Board PanelU. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory CommissionWashington, D. C. 20555 Washington, D. C. 20555

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