ML19256A759
| ML19256A759 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 12/22/1978 |
| From: | Dym H, Gribbon D, Grossman J COVINGTON & BURLING |
| To: | |
| References | |
| NUDOCS 7901160098 | |
| Download: ML19256A759 (10) | |
Text
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NRC PUBLIC DOCUMENT ROOM
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p UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION SEFORE THE ATOMIC SAFETY AND LICENSING SOA
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In the Matter of
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) Docket No. 50-389A FLORIDA POWER & LIGHT COMPANY (St. Lucie Plant, Unit No. 2)
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APPLICANT'S REPLY TO INTERVENORS' OBJECTIONS TO DISCOVERY REQUESTS In accordance with the Board's Order of November 14, 1978, Florida Power & Light Company (tne " Applicant" or
" Company") hereby replies to Intervenors' Objections to Applicant's discovery requests ("Intervenors' Objections").
I.
Requests That Seek Information From Individual Parties Are Wholly Permissible; Counsel Confuse Their " Burden" With That Of The Parties They Represent Applicant's Requests Nos. 116-117, 144-145, 149-150 and 154-155 Intervenors recognize the relevance of Applicant's Requests Nos. 116-117, 144-145, 149-150 and 154-155.
(Intervenors' Objections, p. 2.)
But Intervenors nevertheless would have the Board limit their obligation in replying to these requests, which concern economies of scale in the construction and operation of nuclear and fossil-fueled generating facilities, to furnishing responsive documents and a written response to be prepared by Intervenors' "e:<perts. " Intervenors seek to avoid conducting inquiries to determine if any additional responsive information exists.
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, The basis for this limitation on an admittedly relevant inquiry is the convenience of counsel.
The complaint is not and could not be that a response to these requests by any one of the Intervenors would be burdensome.-*/ Instead, the problem apparently is that the same counsel represent all 18 of the Intervenors, which are separate entities scattered throughout the state of Florida, so that Intervenors' counsel will have to interview 18 times as many officials to prepare answers to these requests as counsel for one party would. --**/
The " burden" involved in answering these requests should be no different than that involved in answering any of Applicant's other discovery requests.
In each instance that a written response is requested, responses are to be obtained from each party.
Each of the Intervenors is a separate party.
As such, its responsibilities can be no less than those of Applicant or any other party in responding
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The fact that several individuals associated with a party may have to be interviewed to respond to a particular discovery request does not thereby make the request objectionable.
- See, e.g.,
Harvey v. Eimco Corp., 28 F.R.D. 381 (E.D. Pa. 1961).
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Intervenors raise the spectre that hundreds of officials will have to be interviewed to respond to these requests.
Of course, it is for Intervenors' counsel to determine in good faith which officials of each party must be interviewed to respond to a particular discovery request.
Mevertheless, a plicant doubts that a good faith response would call for as maasive an undertaking as counsel suggest.
It is probable that the number of persons involved in generation planning at the level of detail called for will be small in the case of any Intervenor.
o
. to discovery requests.
See Rules of Practice, S S 2. 714 ( f) ;
2.740b(a); 2.741(a).
If Applicant's requests would not be objectionable had they been put to one party, they do not become objectionable merely because 18 separate parties are represented by the same counsel.
If any individual intervenor has information respon-sive to these requests in addition to that comprised in docu-ments, Applicant is entitled to be told that in response to its discovery requests.~*/A specially prepared statement of the understanding of the " experts" Intervenors intend to rely on at the hearing is hardly a substitute for what even one of the parties may understand.
Certainly it could not be a sub-stitute for the understandings of 18 disparate parties.
Applicant's Request No. 185 Intervenors put essentially the same objection with respect to Applicant's Request No. 185, which concerns the consideration which any of the Intervenors may have given to establishing a municipal electric systEn.
They object to the
" burden" of interviewing " hundreds" of municipal officials, which they say would be necessary to respond to the request. --**/
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Intervenors have asserted that their continued existence is dependent on obtaining access to the Company's large nuclear gener-ating units.
Joint Petition of Florida Cities to Intervene (August 6,
1976), pp. 58-60.
The unstated premise is that the fossil-fired generating units individual intervenors have built or may build, separately or jointly, are no substitute.
Applicant is entitled to test the basis of this cremise vis-a-vis each intervenor, and to inquire into the understan' ding of scale economies (if any) which has influenced the generating planning of each intervenor.
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Again, Applicant doubts whether the burden is as great as Intervenors suggest.
a
_4-The information sought is relevant to issues
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involved in this proceeding.~ Intervenors mistakenly assume that only the market power and conduct of Applicant are rele-vant to this proceeding.
But what individual intervenors did and did not do also is relevant.
If particular intervenors gave consideration to establishment of municipal electric systems or evaluated proposals to do so, such considerations and eval-uations may pertain to allegations as to the Company's market power and the effects of Company conduct.
In these circumstances, Intervenors' proposal to limit their responses to Applicant's Request No. 185 to the production of documents is unacceptable.
Applicant has no way of knowing whether all considerations by individual intervenors of establishment of municipal electric systems have been reflected in documents, and Applicant should not be forced to accept counsel's speculation that they have.
(Intervenors' Objections, p. 7.)
II.
Protection of Applicant's Legislative Activities Does Not Require as Extensive " Parity of Treatment" as Intervenors Seek Applicant has argued that its legislative activities are protected from discovery by the First Amendment and decisions of the Supreme Court.
Apparently Intervenors do not share that view.
Nevertheless, they seek " parity of treatment" should Applicant's objections be sustained.
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It is unclear whether Intervenors actually object to Applicant's Request No. 185 on the basis of relevancy.
The caption of Section II of Intervenors' Objections recites such an objection, but the text states, " Cities are prepared to provide all documents respon-sive to this request. " (Intervenors' Objections. p. 6.)
~.
. Putting to one side the question of whether the municipal intervenors, as public bodies, have the same First Amendment rights as Applicant, Applicant submits that Intervenors would apply the First Amendment protection entirely too broadly.
Specifically, Applicant disputes that Intervenors' responses to Applicant's Request Nos. 269-275 and 293(b) would be entitled to such protection.
Each of these requests deals with allegations by Intervenors that the Applicant has attempted to impede their legislative activities.
The focus of the requests is on allegations concerning Applicant's conduct, not on Intervenors' legislative activities.-*/ Moreover, when parties voluntarily focus attention in a proceeding on their legislative activities, as Intervenors have done here, they waive any privilege they might have had to protect those activities from discovery.
- See, e.a.,
Grinnell Corp. v.
Hackett, 20 F.R.
Serv. 2d 668, 670 (D.R.I.
1974), aff'd 519 F.2d 595 (1st Cir.), cert. denied, 423 U.S.
1033 (1975) ("it is elementary that a party must as a matter of course have the right to inquire into the factual bases of allegations contained in the opponent's pleading").
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For example, Applicant's Request Nos. 269-275 specifically deal with allegations that the Applicant opposed legislative proposals of various intervenors.
These allegations were made by Mr. Osee R.
Fagan in an affidavit in support of the Joint Petition of Florida Cities for Leave to Intervene in the South Dade proceeding, Florida Power & Light Company (South Dade Plant), Docket No. P-636A (April 14, 1976).
Applicant's Request No. 29 3 (b) seeks to particularize the relief which the Intervenors have requested in their Joint Petition to Intervene in this proceeding (August 6, 1975), pp. 53-54
(" Cities request that this Commission use its authority to condition the licens-ing of the nuclear generating units (sic) [on]
support by FP&L for state legislation that will implement and facilitate Fn. cont'd
. III.
The Time Period for Discovery Should be Limited Applicant has urged that a general cut off date for discovery of January 1, 1972 (with a showing of good cause re-quired for specific discovery requests with an earlier date) would be appropriate under pertinent authorities and in view of the limited issues before the Board in this proceeding.
Applicant's Objections to Discovery Requests and Motion for a Protective Order (December 11, 1978), pp.
3-9.
Without belaboring Applicant's position on this matter, Applicant responds here to the arguments of Intervenors contained in their Cbjections.
1.
Intervenors' reliance on civil damage actions bet-ween private parties brought on account of past conduct to justify discovery reaching back more t. ban a quarter of a century is mis-placed.
This is a much different sort of proceeding -- under section 105c of the Atomic Energy Act, the inquiry must be con-fined to the existing and prospective competitive conditions under the license for Unit No. 2 of the St. Lucie plant.
In such a proceeding, the relevance of ancient history simply cannot be assumed.
Moreover, while orders in certain retrospective lock-ing private damage actions have provided for extensive periods of discovery, other cases, which Applicant believes are more soundly decided, have limited a party's ability to " rove at will through the past."
Austin Theatre, Inc.
v.
Narner Bros. Pictures, Inc., 30 F.R.D.
156, 157 (S.D.N.Y.
1958).
See also New Dyckman Theatre Corp. v.
Radio-Keith-Orpheum Corp., 16 F.R.D.
203, 207 (S.D.N.Y.
1954)
(to require defendants to incur tremendous Fn. cont'd
[the other requested relief and] authorize joint ventures among municipal and other electric systems
.").
7-expense to answer interrogatories on matters of history long since past may well open the door.
for harrassment rather than for the production of competent evidence").
2.
Nor can Intervenors' course of conduct allegations serve to justify the substantial and unreasonabic search burden that would be imposed on Applicant by the extended period of discovery Intervenors seek.
Even if the relevance of ancient history could be assumed, the likelihood is that the results of such an effort would be, at best, incomplete and unreliable, as many of the key actors -- who may have had some knowledge of the events Intervencrs would place in question -- are now retired from the Company or deceased.
3.
Intervenors' novel attempt, at this early date, to limit in any way the arguments upon which Applicant may rely "in defense" of the charges Intervenors have leveled against it, is wholly inappropriate.
Applicant recognizes that, in limited instances, discovery requests that reach back before January 1, 1972 might be appropriate.
Accordingly, Applicant has proposed that such requests be allowed if good cause is shown.
This represents a workable procedure that is recognized and endorsed by the authorities and that Boards have adopted in the past.
Such a procedure would be fair to all parties.
For the foregoing reasons, Applicant respectfully requests that the Board overrule Intervenors' o'cjections to
. Applicant's discovery requests, decline to limit those requests, and refuse the other relief sought by Intervenors.
Respectfully submitted, l-
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Daniel M.
Gribbon Herbert Dym Joanne B. Grossman Covington & Burling 838 Sixteenth Street, N.W.
Washington, D.C.
20006 (202) 452-6000 J.A.
Bouknight, Jr.
E.
Gregory Barnes Lowenstein, Newman, Reis & Axelrad 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 (202) 862-8400 John E. Mathews, Jr.
Jack W.
Shaw, Jr.
Mathews, Osbo rne, Ehrlich, McNatt Gobelman & Cobb
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1500 American Heritage Life Building Jacksonville, Florida 32202 (904) 354-0624 Attorneys for Florida Power & Light Company Dated: December 22, 1978
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THF ATCMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket No. 50-389A Florida Power & Light Company
)
(St. Lucie Plant, Unit No. 2)
)
CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the following:
Applicant's Reply to Intervenors' Objections to Discovery Requests have been served on the persons shown on the attached lis' by hand delivery
- or deposit in the United States mai'.,
properly stamped and addressed on December 22, 1978.
I m.s..s i _u m:
.,.a..
Joanne S.
Grossman Covington & Burling 888 Sixteenth Street, N.W.
Washington, D.C.
20006
Alan S.
Rosenthal, Esquire C.R.
Stephens, Supervisor At6mic Safety and Licensing Dccketing and Service Station Appeal Board Panel Cffice of the Secretary of the U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20535 U.S.
Nuclear Regulatory Cc= mission Washington, D.C.
20555 Jercme E.
Sharfman, Esquire Atcmic Safety and Licensing Jerome Saltzman Appeal Board Panel Chief, Antitrus: and Indemnity U.S.
Nuclear Regulatory Ccmniission Group Washing to n, D.C.
20555 U.S.
Nuclear Regulatory Commission Washington, D.C.
Richard S. Sal: man, Esquire Atcmic Safety anc Licensing Samuel J.
Chilk Appeal Board Panel Secretary U.S.
Nuclear Regulatory Commission U.S.
Nuclear Regulatory Ccmmission Washington, D.C.
20555 Washington, D.C.
20555 ivan W.
Smith, Esquire Chairman, Atomic Safety and Licensing Board Panel U.S.
Nuclear Regulatory Commission Washington, D.C.
20535 Robert M.
Lazo, Esquire Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Valentine B.
Deale, Esquire Atomic Saf ety and. Licensing Board Panel U.S.
Nuclear Regulatory Commission Washington, D.C.
20535
- Robert A. Jablon, Esquire Spiegel & McDiarmid 2600 Virginia Avenue, N.W.
Washington, D.C.
20037
- Melvin G. Berger, Esquire Antitrust Division U.S. Department of Justice P.O.
Box 14141 Washing ton, D.C.
20044 Lee Scott Dewey, Esquire Fredric D. Chanania, Esquire Counsel for NRC Staff U.S. Nuclear Regulatory Commission Washington, D.C.
20555