ML19296A562
| ML19296A562 | |
| Person / Time | |
|---|---|
| Site: | 07900125 |
| Issue date: | 04/18/1979 |
| From: | Goldberg J, Volger B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| PROJECT-564M NUDOCS 7905100138 | |
| Download: ML19296A562 (49) | |
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NRC PUBLIC DN ROOM
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N UNITED STATES OF AMERICA k
NUCLEAR REGULATORY C0tNISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD c
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,p In the Matter of D
PACIFIC GAS AND ELECTRIC
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NRC Docket No. P-564A
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COMPANY
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(Stanislaus Nuclear Project.
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UnitNo.1)
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7 f
NRC STAFF'S BRIEF IN SUPPORT OF THE LICENSING BOARD'S ORDER DENYING SOUTHERN CALIFORNIA EDISON COMPANY'S MOTION TO QUASH SUBPOENA DUCES TECUM r
.,m Jack R. Goldberg Counsel for NRC Staff (g
Benjariin H. Vogler
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Assistant Chief Antitrust Counsel for NRC Staff j
April 18,1979
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t 7905100ff/ q i 0
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPFAL BOARD In the Matter of
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PACIrlC GAS AND ELECTRIC
)
NRC Docket No. P-564A COMPANY
)
(Stanislaus Nuclear Project,
)
i Unit No. 1)
)
/
NRC STAFF'S BRIEF IN SUPPORT OF THE LICENSING BOARD'S ORDER DENYING SOUTHERN CALIFORNIA EDIS0N COMPANY'S MOTION TO QUASH SUBPOENA DUCES TECUM Jack R. Goldberg Counsel for NRC Staff Benjamin H. Vogler Assistant Chief Antitrust Counsel for NRC Staff April 18,1979 r
TABLE OF CONTEf'TS 1.
INTRODUCTION..
I II.
THE COMMISSION'S RULES OF PRACTICE AUTHORIZE THE ISSUANCE OF SUBPOENAS DUCES TECUM DIRECTED TO NON-PARTIES 3
A.
The Rules of Practice, by Their Own Terms, Authorize Licensing Boards to Issue Subpoenas Duces Tecum Directed to Non-Pa rti es....
3 4
B.
The Appeal Board Has Upheld the Authority of Licensing Boards to Issue Broad Subpoenas Duces Tecum Directed to 4
Non-Parties III.
THE COMMISSION'S RULES OF PRACTICE CANNOT BE ATTACKED IN 6
ADJUDICATORY LICENSIfiG PROCEEDIf1GS.
IV.
THE LICENSING BOARD DID NOT ERR IN DENYIflG SOUTHERN CALIFORflI A EDISCN COMPANY'S MOTION TO QUASH AND IN ORDERING COMPLIANCE WITH THE CONDITIONED SUBPOENA 9
A.
No Showing of the Relevance of the Documents Sought or of the Propriety of the Subpoena Is Required Prior to the Licensing Board's Issuance of a Subpoena Duces Tecum; In Any Event, Such a Showing Has Now Been Made 9
B.
The Documents Required to be Produced by the Conditioned Subpoena Are Relevant 10 C.
The Licensing Board Did Not Err in Refusing to Accept Pr'ivilege Determinations by the Federal Energy 16 Regulatory Commission V.
PRODUCING THE DOCU"ENTS ORDERED BY THE ICENSING BOARD WOULD 17 NOT BE UNCONSTITUTIONALLY BURDENSOME VI.
SOUTHERN CALIFORNIA EDISON COMPANY SHOULD NOT BE REIf!BURSED FOR ITS COSTS OF COMPLIANCE WITH THE CONDITIONED SUBPOELA 20 A.
The NRC Cannot Order DWR to Reimburse Edison Without Express Statutory Authority; There Is flo Such 21 Au tho ri ty B.
The NRC Cannot Reimburse Edison Without Express 24 Statutory Authcrity; There Is No Such Authority C.
Even if There Were Authority for Reimbursement, Reimbursement Is Nei ther Requi red Nor Prooer Under the 26 Facts of this Case VII.
CONCLUSION.
28 i
AUTHORITIES CITED COURT CASES:
F.2d $f (8th Cir. 1961)..
/, 13 Aleyska Pigeline Service Co. v. The Wilderness Society, 421 U.S. 420 (1975) 21 Central Maine Power Co. v. Maine Public Utilities Commission, 395 A.2d 414 (Me.1979) 22, 23 Endicott Johnson Cor -. v. Perkins, 13 317 U.S. 501 (19 FCC v. Cohn, 154 F.Supp. 899 (S.D.N.Y.1957) 7 FTC v. Rockefeller,
~
Antitrust & Trade Reg. Rep. (BNA),
7, 19, 26 No. 899, F-1 (2d Cir.1979)
FTC v. Texaco, Inc.,
555 F.2d 862 (D.C.' Ci r. ), cert. denied, 434 U.S. 883 (1977) 19, 20 G.M. Leasing Corp. v. United States, 17, 18 429 U.S. 338 (1976)
Greene County olar.ning Boarn v.
- FPC, 559 F.2d 1227 (2d Ci r.
1976), cert. denied, 434 U.S. 1086 (1978) 25 Moore Busi nes s Forms, Inc.
- v. FTC, 307 F.2d 188 [D.C. Ci r. 1962) 12, 13 Oklahoma Press Publishing Co. v. Walling, Ware and Hour Admi ni s tra ti on,
327 U.S. 186 (1945) 18, 19 M C_ v. Arthur Young & Co.,
584 F.2d 1018 (D.C. Ci r.1978) 13 SE
- Bri gadoon Scotch Dis tributing Co.,
~
480 F.2d 1047 (2d Cir. 1973), cert. denied, 415 U.S. 915 (1974) 19 See v. _Ci ty o f Sea ttle, 17 387 U.S. 541 (1967) ii
Turner.v. FCC, 21 e
514 F.2d T354 (D.C. Cir. 1975).
United States v. Biswell, 18 406 U.S. 311 (1972)
Unite
- States v. Dauphin Depos i t Trus't Co.,
385 i.2d 129 (3d Cir. 1967), :ert. denied,
'-~~
27 e
390 U.S. 921 (1968)
United States v. Davey, 26 543 F.2d 996 (2d Cir.1976)
United States v. Friedman, 26 532 F.2d 928 (3d Cir.1976)
United States v. Harrington, 13 358 F.2d 520 (2d Cir.1968)
United States v. Morton Salt Co.,
18 338 U.S. 632 (195~0)
NRC/AEC CASES:
Alabama Power Co.,
(Joseph M. Farley Nuclear Plant, Units 1 & 2),
10 5 NRC 804 (1977)....
Allied-General Nuclear Services et al.,
(Barnwell Fuel Receiving and Storage Station),
5 NRC 489 (1977) 3 Commonweal th Edison Co.,
(Zion Station, Units 1 & 2),
2, 5 ALAB-116, 6 AEC 258 (1973)
Commonweal th Edison Co.,
[ Zion Station. Units 1 & 2),
3 ALAB-196, 7 AEC 457 (1974)
Consumers Power :o.,
(Midland Plant, Units 1 & 2) 5 ALAB-118, 6 AEC 263 (1973)
Consumers Power Co.,
(Midland Plant, Units.I & 2)
.. 2, 4, 5 ALAB-122, 6 AEC 222 (1973) iii
Illinois Power Co.,
(Clinton Power Station, Units 1 & 2),
ALAB-340, 4 NRC 27 (1976)...
3 Kansas Gas & Electric Co. and Kansas City Power & Light Co.,
(Wolf Creek Generating Station, Unit 1),
ALAB-279,1 NRC 559 (1975)
. 10 Kansas Gas & Electric Co. and Kansas City Power & Light Co.,
(Wol f Creek Nuclear Generating Station, Unit 1),
5 ALAB-311, 3 NRC 85 (1976)
Louisiana Power & Light Co.,
(Waterford Steam Electric Generating Station, Unit 3),
6 AEC 48 (1973)
....................10 Louisiana Power & Light Co.,
(Waterford Steam Electric Generating Station, Unit 3),
6 AEC 619 (1973)
. 10 Metropolitan Edison Co. et al.,
IThree MiIe Island Nuclear Station, Unit 2),
Al.AB-456, 7 NRC 63 (1978)..
8 Nuclea r Regula tory Corniss ion, (Financial Assistance to Participants in Commission Proceedings)
...............25 Paci fic Gas & Electric Co.,
T6iablo Canyon Nuclear Poser Plant, Units 1 & 2),
ALAC-410, 5 NRC 1393 (1977) 8 Potomac Electric Power Co.,
TiroGTilas Point Nuclear Generation Station, Units 1 & 2),
ALAB-218, 8 AEC 79 (1974) 8 STATUTES:
Atomic Energy Act of 1954, as amended, 42 U.S.C. 52011 et seq. (1970):
6105c(5) 9 9161 6
~
5161c 1, 7, 9 Federal Rule of Civil Procedure 45(b).
24 iv
NRC Rules of Practice,10 C.F.R..
3 62.718(b)....
52.720 1, 9 3
52.720(a)...........................
52.720( f)........
11, 12, 23 3, 9 52.72n(f)(3) 3 52.721(d)...........................
11 52.740(b)(1) 5 52.740(c)...........................
8 52.758(a)-(e).........................
Other Authorities:
Matter of Reimbursement by Federal Agency of Private Attorney for Out-of-Pocket Expenses in Agency Proceeding Comptroller General Decision B-l'.12784 (January 10,1979) 25 Y
a
I.
INTRODUCTION On August 24, 1978, the State of Cali fornia Department of Water Resources ("DWR"), pursuant to section 161c of the Atomic Energy Act of 1954, as amended, ~~1/
and 10 C.F.R. 52.720 of the Commissiun's Rules of i
Practice, applied to the Licensing Board for issuance of a subpoena duces tecum directed to the Custodian of Records of Southern California Edison Company (" Edison") requiring the production of certain categories of documents. The Chairman of the Licensing Board signed the Subpoena Duces Tecum ("the subpoena") attacned to DWR's application on August 28, 1978.
Immediately after applying for the subpoena, DWR commenced negotiations with Edison concerning Edison's compliance with the subpoena for which DWR applied.
DWR agreed not to serve the subpoena on Edison pending the outcome of the negotiations. ~~~2/
Althaugh DWR agreed to narrow the scope of the subpoena ~~~3/
and reduce the burden of Edison's compliance with the
_4_/
narrowed subpoena, DWR and Edison failed to reach a compromise.
DWR therefore served the (original) subpoena on Edison by mail on November 17, 1978, and Edison filed its Notice of Motion to Quash Subpoena Duces Tecum with a supporting memorandum of law and affidavit on December 29, 1978.
The NRC Sta ff filed an answer to Edison's Motion to Quash on January 12,
~
_1/ 42 U.S.C. 5 2201 (c )(l o 70).
_2/ See the August 20, 1978, letter from Michael J. Strumwasstr, Deputy Attorney General, State of Cali fornia, to Arthur L. Sherwood, Esq.,
Counsel for Edison.
_3/ See the September 12, 1978, letter from Strumwasser to Sherwood.
_4/ See the October 31, 1978, letter from Strumwasser to Sherwood.
5/
6/
- 1979, and DWR filei its answer on January 15, 1979.
The Licensing Board heard extensive oral argunent on Edisoti's it ; o to Quash on January 24, 1979. -7/The Board heard general arguments frou Edison as to why the subpoena should be quashed as well as specific rele-vancy and burden objections by Edison with respect to each of the ten categories of documents requested by the subpoena. As a result, the Licen-sing Board narroweds deleted, or otherwise modified the subpoena's document requests and issued a-Order dated January 25, 1979, formally denying Edison's Motion to Ouash and ordering Edison to produce the documents requested by the subpoena as conditioned by the Board's Order (" conditioned subpoena").
8/
9/
Edison then brought this appeal, filing its Exceptions on February 3,1979, and its Brief -10/in support thereof on March 5,1979.
DWR filed its Reply Brief on March 30, 1979.
The Staff hereby files its Brief in Support of the Licensing Board's Order Denying Southern California Edison Company's Motion to Quash Subpoena Duces Tecum.
5/ NRC Sta f f's Answer to Southern Cali fornia Edison Company's Motion to Quash Subpoena Ducec Tecum-
_6/ Answer of Department of Water Resources to Southern California Edison Company Motion to Quash Subpoena Duces Tecum.
7/ The oral argument lasted almost the entire day.
It appears at transcript pp. 1771-1959.
8
_/ A Licensing Board order granting discovery against a non-party is not interlocutory and thus the Appeal Board has jurisdiction over the appeal notwi ths tanding 10 C.F.R. 5 2.730( f).
Consuners Power Company (Midland Plant, Units 1 and 2), ALAB-122, 6 AEC 322 (1973), Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-116, 6 AEC 258 (1973).
, 9/ Exceptions of Southern California Edison Conpany to Order of Licensing Board dated January 25, 1979.
10/ Brie f of Southern Cali fornia Edison Ccepany in Support of Exceptions to Order Denying Motion to Quash Subpoena Duces Tecum (" Edison's Brief").
q II.
THE C0f' MISSION'S RULES OF PRACTICE AUTHORIZE THE ISSUANCE OF SUBP0Ef1A DUCES TECUM DIRECTED T0 TION-PARTIES A.
The Rules of Practice, by Their Own Terms, Authorize Licensing Boards tu Issue Subpoenas Duces Tecum Directed to flon-Parties Under 10 C.F.R. 652.721(d) and 2.718(b) of the Commission's Rules of Practice, a licensing board has the power to issue subpoenas authorized by law.
Section 2.720(a) provides, in pertinent part:
On application by any party, the designated presiding o f fice r.
will issue subpoenas requirina the attendance and testimony of witnesses or the production of evidence. Q/
And section 2.740(f)(3) states, in relevant part:
This section [" General provisions governing discovery"]
does not preclude an independent reauest for issuance of a subpoena directed to a person not a party for production 13/
~.s and things. U-/
of docum These rules clearly and specifically establish the authority of the Licensing Board to issue a subpoena duces tecum directed to Edison notwithstanding its status as a non-party to this proceeding.
R/
10 C.F.R. 62.720(a) (emphasis added),
12/
10 C.F.R. 92.740(f)(3) (emphasis added).
13/ The fiRC's Rules of Practice are based on the Federal Rules of Civil P roce du re.
Illinois Power Company (Clinton Power Station, Unit Nos,
I and 2), ALAB-340, 4 NRC 27, 33 (1976)', Comronwealth Edison Company (Zion Station, Units 1 and 2), ALAB-196, 7 AEC 457T1974), Allied-General fluclear Services et al. (Barnwell Fuel Receiving and Storage Station), 5 f!RC 489 (1977).
The Licensing Board in this case has ruled that the Federal Rules of Civil Procedure apply by analogy to discovery in this proceeding.
July 8,1977, Special Prehearing Can ference tr. a t 215-16.
4_
B.
The Appeal Board Has Upheld the Authority ___of_L_icensing Boards to !ssue Bro,a_d Subpoenas Pucc- 'ccum Pi rec ted to Ncn ca rt ies Some of the same arguments advanced by Edison challenging the issuance of the subpoena at issue here were raised in a prior NRC anti-trus t proceeding.
The facts concerning the issuance of a subpoena in I4
.../
the Consumers case are strikingly similar to those in the instant matter.
In the course of discovery in Consumers, the Licensing Board, upon the application of a party, issued a subpoena duces tecum directed to twenty-one non-party Michigan municipal electric systems.
~~15/
As stated by the Appeal Board:
Twenty-one Michigan municipalities have appealed to us fram discovery orders against them by the Licensing Board
... in this antitrust proceeding. [T] hey are not parties to the proceedi ng...
The subpoenas sought the production, for each year from 1960 to date, of a substantial number of documents relating to virtually all facets of the marketing operations conducted by these municipal electric sys tems..
Appellants [the twenty-one municipals] moved to quash the subpoenas and the attached document requests and interroga-tories on the grounds that (1) the information sought was irrelevant to the issues in controversy; (2) " full-blogn" discovery of non-parties is not oermitted by either tae Commission's Rules of Practice or the Federal Rules af Civil Procedure; and (3) an undue burden would be imposed upon them i f required to respond.
.The Motion to quash was denied
[by the Licensing Board] and the appellants were directed to comply...with the sub'poenas and interrogatories, as modi fied.16j 13/ Consumers Power Co_mpany (Midland Plant, Units 1 and 2), NRC Docket Nos. 50-329A, 50-330A.
15/ See Consuners Power Company (Midland Plant, Units 1 and 2), ALAB-122, 6 AEC 322, 323 (1973).
16/
Id. at 322-23 (emphasis added; footnote omitted).
Following the oral argument of the Appeal...we rendered a ruling from the bench which was then incorporated in a wri tten memorandum issued on the same date ' ALAB-ll8... ).
In that ruling, we rejected all of appellants contentions except those relating to burden and confidentiality. While expressly holdinq that the applicant was entitled to the discovery which was allowed it by the Licensing Board, we noted that we are authorizea by Secticn 2.740(c) of the Rules of Practice,10 C.F.R. 2.740(c), "to take various kinds of action - short of an outright denial of discovery - to protect against undue ' urden or expense or to preserve o
confidentiality." 12/
[W]hile the discovery allowed by the Licensing Board is obviously quite broad, so too is the scope of issues..
18/
Thus, the Appeal Boa rd has upheld the issuance by a Licensing Board in an antitrust proceeding of a broad.ubpoena duces tecum directed to non-15/
parties.
Edison attempts to distinguish the Consumers case (ALAB-122) on the basis that the twenty-one municipals upon whom the subpoenas were served in that case were members of an intervenor group, the Michigan Municipal Electric f ssocia tion.
Edison says it does not disagree with the conclusion that these nembers "should be treated as parties thenselves for discovery p;r-20/
poses."
In fact, the Consumers' Appeal Board treated the twenty-one
~~17/ Id. at 324-25 (2mphasis added; footnotes omitted).
See ALAB-110, 6 AEC 263 (1973).
18/ Consumers, supra note 15, a t 326.
19/
lther Appeal Board cases which impliedly recognize the right of miscovery against non-parties are: Kansas Gas and Elegtric Co.
(Wol f Creek tiuclear Gene ra ting Station, Uni t No.1),,', LAB-311, 3 NRC 85 (1976)- Corronwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-ll6, 6 AEC 25TTl DJ).
l 20/ Edison's Brief at 8.
municipais as non-parties for all purposes.
Not only did the Consumers' Appeal Board consider the Licensing Board's discovery orders again;t the 21 /
municipals as final and appealable because they were non-parties.~ but it also held that discovery against non-par +'es is authorized by the Commission's Rules of Practice.
'Thus contrary to Edison's position that Consumers "is of no value in deciding the issues here",--23/ the Stafr submits that Consumers is controlling precedent.
III. THE COMMISSION'S RULES OF PRACTICE CANNOT BE ATTACKED IN ADJUDICATORY LICENSING PROCEEDINGS Having established the fact that the Commission's Rules of Practice, by their own terms and as interpretated by the Appeal Board, provide the authority for this Licensing Board to issue the subpoena duces tecum directed to Edison, it is the Staff's position that the subpoena cannot be quashed on the ground offered by Edison that there is no statutory basis for such issuance. -24/
The Staff strongly disagrees with Edison's position that the subpoena was issued without statutory authority.
Section 161 o f the 25/
Atomic Energy Act of 1954, as amended, provides, in pertinent part:
n/ Consumers at 322.
22/
Id. at 323-25.
23/
Edison's Brief at 8, 24/
Id. a t 3-11, 25] 42 U.S.C. 52201.
In the performance of its functions the Commission is authorized to -
- c. make such studies and investigations, obtain such in-formation, and hold such meetings or hearings as the Commission may deem necessary or proper to assist it in exercising any authority provided in this Act, or in the administration or enforcement of this Act, or any regulations or orders issued thereunder.
For such purposes the Commission is authorized to administer oaths and affirmations, and by subpena to require any pe-
,n to appear and testify, or to appear and produce documents, or both, at any designated place.
The Staff believes this is clear statutory authority for the issuance 26/
of the subpoena duces tecum directed to Edison.
Furthermore, the language that for the purposes of investigating or obtaining information "to assist it," "the Commission is authorized...by subpoena to require any person to appear and testify or to appear and produce documents, or both, 27) is contrary to Edison's argument that the at any designated place,"
Commission can issue subpoenas only for testimony or production at__a hearing.~28/
El Courts have found a statutory basis for the issuance of adninis-trative subpoenas under similar statutes: FTC v. Rockefeller Antitrust & Trade Reg. Rep. (BNA), No. 899, at F-1 (2d CirT1979)
(FTC Act), rC__C_v. Cohn, 154 F.Supp. 899 (S.D.N.Y.1957) (Federal Commtnications Act) ("This [ subpoena] power is, of course, not ccnfined to those over whom it may exercise regulatory jurisdiction, but to any persons fron whon it can obtain information and documents which are relevant and naterial to i ts inquiry."
Id. at 906).
See also Adams v. FTC, 296 F.2d 861 (8th Ci r.1961T~
27/ 42 U.S.C. s2201(c)(1970) (emphasis added).
28/ Edison's Brief a 6.
Notwithstanding this clear statutory authority, however, it is the Staff's position that if Edison's argument that there is no statutory basis for the issuance of the subpoena against it constitutes an attack on the Commission's Rules of Practice, then the issues raised by such an attack are not justiciable in the Commission's adjudicatory proceedings on initial licenses.
Section 2.758(a) of the Rules of Practice provides, in pertinent part:
[A]ny rule or regulation of the Commission, issued in its program for the licensing and regulation of production and utilization facilities...shall not be subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding involving initial licensing subject to this subpa rt... _2_9/
Since the Rules of Practice clearly provide for the issuance of subpoenas
_30/
requested by intervenors and directed to non-parties, neither the Licensing Board nor the Appeal Board can look behind those Rules in this proceeding. -31 It follows that Edison's argument that the Atomic Energy Act limits the 2_9/
Section 2.758(a) provides that a prty to an initial licensing adjudicatory proceeding may petition that the appli-cation of a speci fic rule be waived or an exception made for the particular proceeding based on the sole ground that special circunstances are such that application of the rule would not serve the purposes for which i t was adopted.
Section 2.758(c) governs the Licensing Board's derial of such a petition to waive or except.
Section 2.758(d) requires the Licensing Board, before granting such a petition to waive or except, to certify the petition directly to the Commission for determination of the matter.
Section 2.758(e) permits parties to initial licensing proceedings to petition for rulemaking pursuant to section 2.802.
3_0/ Pa rt II o f this brie f, supra.
3_l / Metropolitan Edison Company et al. (Three Mile Island Nuclea r Sta tion, Unit 2), ALAB-456, 7 NRC 63, 65 (1978); Paci fi c Gas & Electric Company
~
(Diablo Canyon Nuclear Power Plant, Units 1 ' 2), ALAB-410, 5 NRC 1398, 1402 (1977), Potomac Electric Power Company,,' Douglas Point Nuclear Generating Sta tion, Uni ts 1 & 2), ALAS-215,
'EC 79, 89 (1974).
I e t
Commission to issuing subpoenas for its "own," purposes at a heari_n3 and not l
32/
33/
for Intervenors during prehearing discovery must fail as an attack on the Commission's Rules of Practice.
IV. T_HE LICENSING BOARD DID NOT ERR IN DENYING SOUTHERN CALIFORNIA EDISON COMPANY'S ff0 TION TO QUASH AND IN ORDERING COMPLIANCE WITH THE CONDITIONED SUBPOENA A.
No Showing of the Relevance of the Documents Sounht or of the Propriety of the Subpoena Is Required Prior to the Licensing Board's Issuance of a Subpoena Duces Tecum; In Any Event, Such a Showing Has Now Been Pade Edison takes the position that the subpoena was improperly issued be-cause DWR made no showing of its propriety. But such a showing is not re-quired.
Section 7.720 of the Rules of Practice states that the presiding of ficer "may require a showing of general relevance of the testimony or evidence sought." Clearly, the failure to make that showing, i f not required by the Licensing Board, as it was not in this case, is not a ground for quashing the subpoena.
In any event, DWR did make a proper showing of relevance at the R/ Edison argues that the subpoena issued in this case was unauthorized because it was issued "for the benefit..of an Intervenor" and not for the Commission's "own purposes" Edi on's Brief at 5-6.
Section 2.740(f)(3) o f the Commission's Rules of Practice does not preclude an " independent reque_st_ for issuance af a subpena directed to a person not a party for production of documents" (emphasis added).
Thus the NRC Rules of Practice certainly permit intervenors to obtain subpoenas directed to non-parties. While it is not necessary here to search for a statutory ba.es for this rule, as the Staff is arguing, it certainly is not di f ficult to find such authority in Section 161c of the Act (quoted at page 7 suora):
Clearly the Commission is
" assist [ed]" in making i ts statutory finding under section 105(c)(5) of the Act by conducting proceedings in which all parties have discovery necessary to p'epare and present cases which, while protecting their own sel '-interests, also serve the broader public interest of enabling thi' Commission to make that statutory finding based on a fully-developed record concerning the competitive situation.
y/ Edison's Brief at 5-11, 34/ The Licensing Board ruled specifically that it was not requiring a prior showing of general relevance because such a showing was unnecessary based on the state of the record.
Tr. at 1798.
oral argunent and in its Answer to Edison's Motion to Quash. -35/
8.
The Documents Required to be Produced by the Conditioned Subpoena Are Relevant Edison argues that the subpoena asks for irrelevant material and at therefore should be quashed.
The Staff disagrees that the conditioned subpoena requires the production of irrelevant documents.
Initially, Edison's argument is based on an incorrect standard of relevance.
Edison argues that the standard of relevance is whether the information requested is relevant to a " substantial" connection between the activities relating to the nuclear facility and the applicant's competitive practices.
Edison derives this " relevancy" standard from the Licensing Board's antitrust Ml decision in the Alabama Power Company case.
A reading of that case, g/
however, as well as the Appeal Board and Commission decisions upon which the pertinent language in Alabama is based, conclusively demonstrates that Edison has confused the Commission's nexus requirement with the correct standard of relevancy in discovery.
357 hote 6, supra.
-35/ Alabama Power Co. (Joseph.M. Farley Nuclear Plant, Units I and 2),
5 NRC 804, 843 (1977).
37/ Kansas Gas & Electric Co. and Kansas City Power and Licht Co.
(Wolf Creek Generating Station, Unit 1) ALAB-279,1 NRC 559 (1975); Louisiana Power & Licht Co. (Waterford Steam Electric Generating Station, Unit 3), 6 AEC 48 (1973), Louisiana Power &
LBht Co. (Waterford Steam Electric Generating Station, Unit 3),
6 AEC 619 (1973).
Section 2.740(b)(1) of the Commission's Rules of Practice states, in relevant part:
Parties may obtain discovery reo3rding any matter, not privileged, which is relevant to the subject matter in-volved in the proceeding, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party...
In a proceeding on an application for a construction permit or an operating license for a production or uttiization facility, discovery shall begin only a f ter the prenearing conference...and~
shall relate only to those matters in controversy whitn have been identi fied by the Cornission or the presiding of ficer in the prehearing order entered at the conclusion of tha+
rehearing conference.... It is not ground for object.u. that the information sought will be inadnissible at the hearing i f the information sought appears reasonably calculated to lead to the discovery of admissible evidence. 38/
It follows that the conditioned subpaena is not of
- tionable on relevancy grounds if it requires the production of dccuments, not privileged, which are relevant to the " subject matter" of this proceeding.
The " subject matter" of this proceeding is defined by the issues as set forth in the Licensing Board's " Order Regarding Special Prehearing Conference: Iden ti fi ca tion of Issues Discovery Schedule (July 14,1977)" (" Order Identi fying Issues").
Therefore, the Sta ff subnits that the correct way to determine whether or not the docunents sought by tha conditioned subpoena are relevant is to compare the specific document requests of the conditioned subpoena with the Issues in Controversy as defined by the Licensing Board's Order Identi fying Issues. ~~39/Indeed, 62.720(f) of the Commission's '.ules of Practice, upon which Edison bases its motion to quash the subpoena, --40
]@~~ TOC.F.R.%2.740(b)(1)(emphasisadded).
39
_/
Pa ges 3-10.
40/ Edison's Brief at 8.
provides that the Commission may " quash or nodify the subpoena if it.
requires evidence _not relevant, to_any ma tter in issue.
-41/
The Appeal Board has recognized this as the correct procedure for judging the relevancy of a subpoena duces tecum directed to non-parties, stating that "while the discovery allowed by the Licensing Board is ob-vously quite broad. so too is the sc_ ole of issues which may possibly have to E.e resolved by that Board." -42/This is in accord with the pro-cedure approved by the U.S. Court of Appeals for the District of Columbia Ci rcui t. ~-43/
The Staff suggests that the Licensing Board' Order requiring Edison to produce documents pursuant to the conditioned subpoena cannot be reversed on relevancy grounds unless the Appeal Board finds that the documents requested by the conditioned subpoena are "not possiblv relevant and ma te ri al" -44/
to the issues in controversy.
This is precisely the standard 41/ 10 C.F.R. 52.720(f) (enphasis added).
42/ Consumers, supra note 15, at 326 (emphasis added).
43/ Moore Business Forms, Inc. v. FTC, 307 F.2d 188,189 (D.C. Cir.
1962)("when we place the instant subpoena alongside the Commission's complaint, we cannot say that the requested information is plainly irrelevant to the charges contained in the complaint.").
See also Acans v. FTC, 296 F.2d 861, 867 (8th Ci r.1961).
44/ Consumers, supra note 15, at 326 (emphasis added). ("It is idle, we think, to suggest that the information which the applicant seeks is not possibly relevant and material to the far-ranging issues..."
Id-)
15/
16 /
used by the Appeal Board in Consumers and by many courts.
The Staff believes that the documents required to be produced by the conditioned subpoena are relevant when considered in light of the correct s ta nda rd of "not possibly relevant and material" to the issues in contro-This can be seen by comparing each category of documents requested versy.
by the conditioned subpoena with the issues in controversy, as follows:
(1) The documents requested by Category (1) of the subpoena relate to the California Power Pool to which the Applicant, Pacific Gas and Electric Company ("PG8E"), Edison, and San Diego Gas and Electric Company are the parties. These documents are relevant to the issues, inter alia, concerning whether PG&E, either alone or by means of a contract, combination, all or conspiracy with others, has hindered or precluded competition E/
.I.d.
46/ Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943) ("The evidence sought by the subpoena was not plainly incompetent or irrelevant.
"), SEC v. Arthur Young & Co., 584 F.2d 1018,1029 (D.C. Cir.1973) ("we disagree...that the Dis trict Court utilized an erroneous standard in passing on the issue of relevance.
The court held that 'the materials sought are not clearly irrelevant or immaterial, '"); Uni ted S ta tes v. Ha rrington, 388 F.2d 520, 52 3 (2d Cir.1963) ("whither the records sought were relevant.
'whether the inspection sought might have thrown light upon the
[ issue].'"); Moore Business Forms, Inc. v. FTC, 307 F.2d 188,189 (D.C. Cir.1962) ("we cannot say that the requested information is plainly i rrelevant").
47] As stated in Adams v. FTC, 296 F.2d 861, 867 (1961):
[B]roadness alone is not sufficient justification to refuse enforcenent o f a subpoena so long as the material sought is relevant.
It is readily apparent that many of the speci fica tions o f the subpoenas are broad in scope.
However, when a consoiracy is alleged the search might take a broad sweep in order that inforration revealing the na ture o f tha rela tionship between ; " alleged co-conspirators can be obtained.
[Enphasis added).
~
(Issues -48/
II A 1-3 and It!), has hindered or precluded others from coordinating (Issues II A 4 and IV), has prevented or frustrates! others from doing business with each other (Issues II A 14 and IV), has limited or denied others membership in a power pcol (Issues II A 18 and IV),
~
has hindered or prevented transactions between or among others (Issues II A 19 and IV), and has limited service obligations (Issues II A 20 and IV).
(2)
The documents requested by category (2) of the subpoena relata to the Paci fic Northwest-Southwest Intertie.
These are relevant, inter alia_, to the issues concerning whether PG&E. alone or in concert, has precluded competition for sources of bulk power supply (Issues II A 2 and IV), has refused to wheel (Issues II A 5 and IV), has prevented others from doing business or transacting with each other (Issues II A 14, 19 and IV), has excluded others from access to Pacific Northwest power (Issues II A 21 and IV) has controlled and denied access to essential or unique resources, and has abused, or attempted to acquire, a strategic position in bulk power trar.snission (Issues V A-E).
(3)
The documents requested by category (3) of the conditioned subpoena must relate to DWR and bulk power services.
DWR is a party to this case in competition with both PG&E and Edison, and, therefore, those documents are clearly relevant to all of the issues comprising DWR's allegations.
48/ Citations are to the Issues in Controversy as set forth in the Licensing Board's July 14, 1977, Order Regarding Special Prehearing Co n fe rence : Identification of Issues: Discovery Schedule, a copy of which is attached hereto for the convenience of the Appeal Eaard.
Oh{
OD (4) The documents requested by category (4) relate to transactions between utilities in the Pacific Northwest and utilities in California These are relevant to the issues identified with respect to category (2).
The docuu.ents requested by category (5) relate to nuclear power (5) plants and are relevant to the issues concerning access to nuclear power i
(Issue VI), nexus (Issue IX), and relief (Issues X and XI).
(6) The documents requested by category (6) of the conditioned sul poena, relating both to PG&E and culk power services, are relevant to the allegations af contract, combination or conspiracy between PG&E and others, including Edison.
(7) The documents requested by category (7) relating to Edison's reserve requirements or reliability are relevant to the issue concerning concerted action between PG&E and others, including Edison, to impose unfair, unreasonable, or disproportionate reserve requirements (Issues II A 10 and IV).
(8)
The documents requested by category (8) relating to interconnection or integra tion of Edison's systen wi th others are relevant to the issues concerning concerted action between PG&E and others, including Edison, to hinder or preclude ot::ers from achieving coordination (Issues II A 4 and IV),
to refuse to interconnect (Issues II A 7 and IV), and to refuse to coordinate (Issues II A 8 and IV).
(9) The documents requested by category (9) relating to the benefits or detriments to Edison, PG&E, or any other utility of participation in bulk power supply services transactions are relevant to the issues concerning concerted action between PG'.E and others, inciading Edison, to hinder or preclude competition (Issues II A 14 and IV), to refuse to whee 1, sell bulk power, ii.erconnect or coordinate (Issues II A 5-8. respectively,
+
and IV), to allocate territories (Issues II A 11 and IV), to prevent Others from dealing with each other (~ Issues II A li,19 and IV), and to limit the size of generating units (Issues II A 27 and IV).
(10)
Category (10) has been deleted from the conditioned subpoena.
In summary, the Staff believes that the documents requested by the conditioned subpoena are relevant when conpared to the Issues in Controversy.
At the very least it cannot be said that the requested documents are "not possibly relevant and material" ~~49/
to the Issues in Controversy.
C.
The Licensing Board Did Not Err in Refusing to Accent Privilege Determinations by the Federal Energy Regulatory Commission 52l With respect to certain documents requested by DWR in this proceeding which are also responsive to prior production requests in proceedings before the Federal Energy Regulatory Commission ("FERC"), the Licensing Board ruled that Edison need only produce in this proceeding the documents which it produced in the FERC proceedings plus documents responsive to the 5_1_/
FERC requests that postdate Edison's production at FERC.
The Licensing Board further ruled, however, that "all documen'.s responsive to the FERC 49/ See notes 44-46 and accompanying text, supra.
50/ Categories (1) and (2) of the subpoena.
51/ Licensing Board's Order dated January 25, 1979.
production requests but withheld on claim of privilege shall be the subject of a new claim of privilege, which shall, if necessary, be ad-judicated by this Board." ~~52/Edison argues that this is needless, has the poten;ial for inconsister.t findings betwetn two federal agencies 53/
and therefore, as a matter of comity, cannot be permitted.
Edison's argument suffers from a fundamental flaw: neither DWR, the party in this proceeding which requested the documents at iosue here, nor the NRC Sta ff, are parties or in privity with any party in the FERC proceedings. Therefore to the extent that privilege determinations were or should be based in part on positions (of law or fact or both) advanced by advocates, both DWR and the Staff will have been precluded from advocating positions in both forums if the Licensing Board blindly accepted the FERC de termina ti ons. As a matter of fairness, that should not be permitted.
V.
PRODUCING THE DOCUf1ENTS ORDERED BY THE LICENSING BOARD WOULD NOT BE UNCONSTITUTIOMLLY BURDENS 01 Edison argues that comoliance with the subpoena would be unduly burdensome in violation of Edison's Fourth and Fi fth Amendment rights. ~~54/
While the Fourth Amendment's protection against " unreasonable searches and seizures" extends to corporations, ~~55/and in particular to 5_6/
administrative agency subpoenas of corporate documents, the cases 52/
Id. at 2.
53/ Edison's Brief at 29.
54/
Id. a t 44-52.
55/
G.M. Leasing Corp. v. United States, 429 U.S. 338 (1976).
56/
See v. City of Seattle, 337 U.S. 541 (1967),
b evidence a clear distinction between the scope of protection afforded 57/
corporations and persons.
As summarized by the Surrene Court <
[N]either incorporated nor unincorporated associations can plead an unqualified right to conduct thair affairs in secret.
While they may and should have protection from unlawful demands made in the name of public investigation, corporations can claim no equality with individuals in the enjoyment of a right to privacy.
They are endowed with public attributes.
They have a collective inpact up;o society, from which they derive the privilege of acting as artificial entities.
The Federal Governnent allows them the privilege of engaging in interstate commerce.
Favors from governnent o ften carry with them an enhanced measure of regulatio" Even i f one were to regard the request for information it 'his case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satis fy themselves that corporate behavior is consistent with the law and the public i n te re s t.
Of course a governmental investigation into corporate matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power.
But it is sufficient if the inquiry is within the authority of the agency, the demand i' not too indefinite and the information sought is reasonably r sevant. 33/
More speci fically, the Supreme Court has sta ted:
Without atterpt to sur-arize or accura tely distingeish all of the cases, the f air distillation, in so far as they dpply nerely to the production of corporate records and papers in response to a subpoena or ceder authorized by law and safeguarded by judicial sanction, seems to be that the Fifth Amendment affords no protecticn by virtue of the sel f-incrimination provision, whether fcr the corpora tion or for its officers - and the Fourth, i f applicable, at the most gu:rds against abuse only by way of too nuch 57/
G.M. Leasing Corp. v. United States, supra note 55; United States
- v. Biswell, 406 U.S. 311 (1972); United States v. Morton Salt Co.,
338 U.S. 632 (1950); Oklahoma Press Publishing Co. v. Walling, Wage and Hour Administration, 327 U.S. 186 (1945).
58/ Uni ted States v. Portor Sal t Co., suora note 54, a t 652 (ci tations omitted).
indefiniteness or breadth in the things required to be "particularly described," if also the inquiry is one tb demanding agency is authorized by law to make and the materials specified are relevant. The gist of the protection is in the requirement, exoressed in terms, that the dis-closure sought shall not ce unreasonable.
...It is enough t'at the investigation be for a lawfully authorized purpose, within the power of Congress to command..
1
...Beyond this the requi rement of reasonableness, including particularity in " describing the place to be searched, and the persons or things to be seized," also literally applicable to warrants, comes down to specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry. Necessarily, as has been said, this cannot be reduced to formult; for relevancy and adequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope oi~
the inqui ry.
When these principles are applied to the facts of the present cases, it is impossible to conceive how a violation of petitioners' rights could have been involved.
Both were corporations.
The only records or documents sought were corporate ones.
No possible element of self-incrimination was therefore presented or in fact claimed. All the records sought were relevant to the authorized inquiry.. 59/
Finally, Edison has the burden of showing that the conditioned subpoena is unreasonable, a burden that is not easily met when the documents 10/
6_1/
requested are relevant.
As stated in FTC v. Texaco, Inc.
We emphasize that the question is whether the demand is unduly burdensome or unreasonably broad. Some burden cn subpoenaed parties is to be expected and is necessary in furtherance of the agency's legitimate inquiry and the public interest.
The burden of showing that the request is unreasonable is on the subpoenaed party.
Further, that burden is not easily met where, as here, the agency inquiry is pursuant to a lawful purpose and the requested documents are relevant to that purpose.
Broadness alone is not sufficient justification to refuse enforcement of a subpoena.
Thus courts ave refused to modi fy investigative subpoenas sq/ Oklahoma Press Publishing Co. v. Walling, Wage and Hour Administra tion, supra note 57, at 208-10 (citations and footnotes omitted).
60/
_F_T_C. v. R cy k efe_11 e r, s upra n o te 26, a t F-5 ; FTC v. Te va c o, I n c.,
555 F.2d 66c, SE2 (D.C. Ci r. ), cert. denied, 434 U.S. 053 (13 77),
SEC v. Brigadoon Scotch Distributing Co., 480 F.2d 1047, 1056 IlRi Cir.19);), cert. denied, 415 U.S. 915 (1974).
61 / 555 F.Nd 862 (D.C. Cir. 1977).
unless compliance threatens to unduly disrupt or seriously hinder normal operations of a business.
There is no doubt tha t these subpoenas are broad in scope, but the FTC's inquiry is a comprehensive one -- and must L? so to serve its purposes.
Furt' er, the breadth complained of is in large part attributable to the magnitude of the producers' business operations. p2/
When these principles are applied to the facts of this case, it is also 1
impossible to conceive how a violation of Edison's constitutional rights could be involved.
Edison is a corporation.
The only documents sought by the subpoena and ordered by the Licensing Board to be produced are corporate documents relevant to a statutorily authorized proceeding.
The requested documents are described with adequate specificity so as to not be unreasonably broad.
Edison has not met its burden of showing that producing the relevant documents would be unduly burdensome.
It follows that Edison's constitutional objections to the condition?" subpoena should be overruled.
VI.
SOUTHERN CALIFORNIA EDISON COMPANY SHOULD NOT BE REIMBURSED FOR ITS COSTS OF COMPLIANCE WITH THE CONDITIONED SUBP0ENA Edison argues that if the subpoena is not quashed, the costs of 21!
compliance should be advanced to Edison by either the NRC or DWR.
At the outset, it is important to realize that Edison's position on reimburse-ment amounts to an argument that Edison ought to be reimbursed for its compliance with a Licensing Board Order.
The Sta ff submits that there is no statutory authority to support Edison and, even if there were, reimburse-ment is neither required nor proper under the facts of this case.
62/
Id. ot 882 (emphasis in original).
~
63/ Edison's Brief at 52-66.
A.
The NRC Cannot Order DWR to Reimburse Edison Without Express Statutory Authori ty; There Is No Such Authority Edison cites no statutory authority for the NRC ordering DWR to reimburse Edison for its costs of complying with the conditioned subpoena.
The Staff has been unable to identify any such statutory authority.
The Sta ff has identified, however, some cases which, while not directly on point, are sufficiently analogous to suggest that express statutory authority is required before this Commission can order DWR to reimburse 54/
Edison for its costs.
65f 5
In Turner v. Federal Communication Commission, peti tioners attempting to persuade the FCC to deny the renewal of a license sought by a radio station requested that the radio station reimburse petitioners for their legal expenses.
The Commission denied the request, holding that it had no power to order reimbursement " absent speci fic statutory a utho ri ty. " --66/The Court of Appeals affirmed, holding that "[b]efore an agency may so order [reimburserent], it must be granted clear statutory 57/
power by Congress."
64/
Cf. Aleyska Pipeline Service Co. v. The Wilderness Society, 421 U.S. 420 (1975).
65/ 514 F.2d 1354 (D.C. Cir.1975).
66/
Id. a t 1355.
67/
Id. at 1356.
-. 3 In a state court case, ~~68/a customer of the Bangor Hydro-Electric Company ("Bangor Hydro") filed a complaint with the Maine Public Utilities Commission ("PUC") alleging that the ' rates it was paying Bangor Hydro were unrea onable.
The customer's complaint stated that the rates of the Central Maine Power Company (" CMP"), which served a neighboring town, were specifically lower, evidencing " geographic discrimination." ~69/
In proceedings before the PUC, the customers filed a motion to compel the production of documents by CMP. The PUC issued an order making CMP a party and ordering it to produce the documents.
CMP sought judicial relief from the Maine Supreme Court, alleging, inter alia, that the PUC's order compelling CMP to respond to the document request violated the 5th and 14th Amendments to the U.S. Constitution and would " impose upon CMP an immediate and substantial financial burden." ~70/
The Maine 68/ Central ffaine Power Company v. Maine Public Utilities Commission, 395 A.2d 414 (Me. 1979).
69/
Id. at 417.
3/ M. at 421.
Supreme Court ruled that CMP had not sustained its burden of provinq the PUC's order unreasonable, helding:
Whatever the wisdom or fairness of requiring CMP, in effect, to absorb the costs it must incur in an investi-gation instigated by a customer of Bangor Hydro, the re-sulting burden is unavoidable under the applicable s ta tu tes.' Title 35 grants the Commission broad authority to compel the production of infornation from public utilities but makes no provision concerning the cost of complying with orders issued pursuant to that authority.
In effect, the legislature has determined that such ex-penses are to be absorbed by public utilities an a cost of doing business. ]J/
The Staff submits that these cases suggest that without express statutory authority, of which there is none, the NRC cannot order OWR to reimburse Edison.
Although Edison cites no statutory authority for reimbursement, it does cite Section 2.720(f) of the Commission's Rules of Practice as authority for the power to order reimbursement.
Section 2.720(f) provides:
On motion made promptly, and in any event at or uefore the time specified in the subpoena for compliance by the person to whom the subpoena is directed, and on notice to the party at whose instance the subpoena was issued, the presiding officer or, i f he is unavailable, the Commission may (1) quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any mattcr in issue, or (2) condition denial of the motion on just and reason-able terms.
72/
71 /
Id. at 432.
72/ 10 C.F.R. @2.720( f) (amphasis added).
This rule is based on Federal Rule of Civil Procedure 45(b), which provides :
A subpoena nay also ce,and the person to vwn it is directed to produce the books, papers, documents, er tangible things designcted therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, nay (1) quash or modi fy the subpoena i f it is unreasonable and oppressive or (2) condition _ penial of the motion upon the advancement by the persen in whose behal f the subpoena is issued of the reason _able cost o f produ,cing the books, papers, documents,
or tangible things. 73/
Upon comparison of these two rules, it is clear that while the federal rule specifically authorizes conditioning denial of a motion to quash a subpoena on reimbursement, the NRC rule does not, but rather authorizes conditioning denial of the motion "on just and reasonable terms." The Staff submits that this departure of the NRC rule frnn the federal rule on the issue of reimbursement is significant in view of the case law, discussed above, suggesting that an agency's order of reimbursement must be founded on express statutory authority.
Since there is no such authority in the Atomic Energy Act, Edison's interpretation of section 2.720(f) 14/
to encompass reimbursement must be erroneous.
B.
The NRC Cannot Reimburse Edison Withcut Express Statutory Authority; There Is No Such Authority Just as Edison cites no statutory authority for the NRC ordering DWR to reimburse Edison, it cites no statutory authority for the NRC it-
~
sel f reimbursing Edison for its cos 3 of complying with the conditioned subpoena.
Once again, the Sta ff has been unable to identi fy any such statutory authority.
It does believe, however, that express statutory 23/
Fed. R. Civ. P. 45(b) (emphasis added).
14/ As the rule provides, of course, the NRC does have the authority to completely quash the subpoena, or nodi fy it, or grant ;t on just and reasonable conditions other than ones which require money to change hands.
authority also is required before this Commission can itself reimburse Edison for its costs.
In Greene County Planning Board v. Federal Power Commission, ~~75/
intervenors who were successful in persuading the FPC to select an alternate route for a transmission li.ne from a hydroelectric project planned by the Power Authority of the State of New York requested the 76/
FPC to reimburse them for their attorney's feet and witness expense.
The Commission denied the requests for reimbur sement, holding that it had no authority for reimbursing the intervenors. -~~77/
The Court of Appeals, sitting en banc, denied petitions to review the FPC Order refusing reimburse-ment and held that "[t3he authority of a Connission to disburse funds must 28/
come from Congress.
This case supports the Staff's position that the NRC cannot reimburse Edison for its costs of complying with the conditioned 21/
subpoena because of the absence of specific statutory authority to do so.
25/ 559 F.2d 12'7 (2d Cir. 1976), cert. denied, 434 U.S. 1086 (1978).
ZE/
Id. at 1230,1234 22/ Id. at 1234 Zg/
Id. a t 1233.
23/ This position is consistent with the views of the Commission concerning the need for specific legislation before taxpayers' money can be spent to fund participants in agency proceedings.
Nuclear Regulatory Commissior (Financial Assistance to Participants in Commission Pro-ceedings), CLI-76-23, 4 NRC 494 (1976).
See also "atter of ReirLursement by Federal Agency o f Priva te Attorney for Out-of-Pocket Expenses in Agency Proceeding, Decision B-192784 (January 10, 1979), a decision involving reinbursenent of expenses by the NRC, wherein the Office of the Comptroller General stated that they "are aware of no specific statutory authority for NRC to reimburse the private attorney" who requested reimbursement for legal expenses in conrection with a special proceeding involving charges of misconduct both by that private attorney and by two NRC Sta f f a ttorneys.
i t.
1 e
. C.
Even i f There Were Authori ty for Reimbursenent,
Reimbu r_s eme n t Is_ Ne i t he r__Requi red Nor Prope r Under_t he Facts of this Case Even if there were express or implied authority for reimbursing Edison for its costs of complying with the conditioned subpoena, the Staff does not believe it is required or appropriato under the facts of this case In FTC v. Rockefeller, ~~80/
the FTC subpoenaed documents from seven bank holding companies as part of its investigation of the energy industry.
The banks attacked the subpoenas on several grounds and also argued that "i f they must comply with the subpoenas, they are entitled to reimbursement of their costs of compliance from the government." --~81/
The Court of Appeals for the Second Circuit affirmed the district court's i sfusal to order reimbursement, holding:
While the district court has the power to require the govern-ment ultimately to pay the costs of compliance, it is a natter of discretion.
Generally, such costs will not be awarded un-less tney are found to be "not.. reasonably incident to the conduct o f [a respondent's] business".
United Sta tes v. Davey, 543 F.2d 996,1001 (2d Cir.1976)... Here it is obvious that the subpoenas are directly related to the conduct of appellants' business..
82/
Similarly, it has been held that before a district court can order reim-bursement, it must make an individualized finding that the costs of com-pliance exceed the reasonably expected cost of doing business. ~~83 80/ Anti trust & Trade Reg. Rep. (BNA) No. 899, F-1 (February 1,1979).
81/
I d. a t F-5.
82/
Id.
83/ United States v. Friedman, 532 F.2d 928, 933 (3d Cir.1976).
4 Also:
If the Fourth and Fifth Amendments accord any protection it could only be from the imposition of an unreasonable and excessive financial burden. 83/
These cases, as well as the others cited by Edison and DWR, fairly can be said to stand for the proposition that, assuming statutory authority for reimbursement, where the non-parties' cost of complying with a subpoena reasonably can be expected to be considered a cost of doing business, the non-party should bear the cost; otherwise, reimbursement a t the non-party of " unreasonable and excessive" costs by the party requestanc compliance would be proper.
The Sta ff believes that Edison's cost of complying with the Licensiim Board's order in this case reasonably can be expected to be considered a cost of Edison's doing business.
The business affairs of Edison and the Applicant, PG&E, are inextricably intertwined.
Both are parties to a number of contracts alleged in this proceeding to be inconsistent with 85/
anti trus t 'ews.
Both are NRC licensees subject to the NRC's anti trus t review and to the federal antitrust laws.
Edison should not now be heard 84/ United States v. Dauohin Deposi t Trust Co., 385 F.2d 129,130 (3d Cir.1967), cert. denied, 390 U.S. 921 (1968).
85/
E.g., the California Power Pool Agreement; the Seven Party Agreement,
the several contracts between the Cali fornia Suppliers and the Sta te of Cali fornia, the Contract Among the Cali fornia Suppliers; the California Companies Paci fic Intertic 'greement; the U.S. Department of Interior, Bureau of Reclamation Con 'act with the Cali fornia Companies for Extra High Voltage Transmission and Exchange Servici to claim that it reasonably could not have expected that its corporate documents relating to its relationship with PG&E concerning bulk power supply services wculd have to be produced in a proceeding involving allegations of PG&E's unilateral and concerted action.
VII. CONCLUSION For the reasons set forth abeve, the Staff respectfully requests the Appeal Board to affirm in its entirety the Licensing Board's January 25, 1979, Order denying Edison's Motion to Quash Subpoena Duces Te-Respectfully submitted, eI-
'b/
\\
c Jack R. Goldberg
/
Counsel for NRC Staff 9
c y e w n,.
cp.i Benjanin H. Vogler Assistant Chief Antitrust Counsel for NRC Sta ff Dated at Bethesda, Maryland this 18th day of April 1979.
to claim that it reasonably could not have expected that its corporate documents relating to its relationship with PG&E concerning bulk power supply services would have to be produced in a proceeding involving allegations of PG&E's unilateral and concerted action.
VII. CONCLUSION For the reasons set forth above, the Staff respectfully requests the Appeal Board to affirm in its entirety the Licensing Board's January 25, 1979, Order denying Edison's Motion to Qaash Subpoena Duces Tecum.
Respectfully submitted, t'I
'o l 4 c
Jack R. Goldberg f
Counsel for NRC Staff l
d
[4 '7/h/A
..f.
Benjamin H. Vogler Assistant Chief Antitrust Counsel for NRC Sta ff Dated at Bethesdu, " >yland this 18th day of April 1979.
UNITED STATi:S OF A:! ERICA NUCLEAR REGULATORY CG:ellSSIO::
q RECE!vio BEFORE Tile ATOMTC CAFi'TY A!!D LICE' SI :G BOARD C77 m" i:i ti o e,,
In the Matter df
)
)
i PACIFIC GAS & ELECTRIC CO:'PANY
)
Docket No. P-564A
)
(Stanislaus Nuclear Project,
)
Unit No. 1)
)
ORDER RECARDINC SPECIAL PREHE!,RISG CO"FERENCE:
IDENTII'ICATIO:: OF ISSUES: DIECO'!ERY SCHEDULE (July 14, T97?)
i A special prehearing conference was held on~ July 8, 1977 pursuant to notice duly published in the. Federal Rec,ister.
All parties ucre present and represented by counsel, including the Applicant, Pacific Gas and Electric Company (PGLE), the Intervenors, Northern California Pouer Agency (NCPA), the Department of Water Resources of the State of California (DWR), the Cities of Anaheim and Riverside, California (Cities) and the Staff.
The Departnent of Justice uas pres-ent cnd reprcacn cd by co:nsel fat a portie-of the proceedings.
Gral argument was heard on PG&E's motion for summary disposition, and thereafter an order was issued denying the motion (Order Denying Motion of Pacific Cas and Electric Company (Applicant) f or Sur.rary Dispos ition, entered July 8, 1977).
D h
( DWR has filed a motion to anend pleadings by adding allegations to its petition to intervene at pages 7, 9 and 10. NCPA moves to amend its petition to add the NCPA -- Georgia Pacific Arrangment, while the Cities seek to plead the PG&E -- Nevada Power Interconnection Agreement. There is no obj ectiod to these pleading amendments, and they are hereby granted. The Board, in accordance with the Commission's Rules of Practice governing a special prehearing conference (10 CFR 52.751a), identifies the key issues in this proceeding as follows: Ultimate Issues 1. Whether PG&E's activities under the proposed license would create or maintain a situation inconsistent uith the specified antitrust laus or the polic;en underlyir.g thost l m.c a (5105c (5)) 2. If there is an affirmative finding of incon-sistency with the. antitrust laus, what license conditions vould be appropriate to remedy the situation, taking into consideration both ~. antitrust and such other public interest factors, if any, as may be involved (5105c (6)). j {0 h v ( Issuef. in Controvernv With renpcet to the u1Limate in nue:., each of the f o l l o.;- i ing issues is relevant in the view of one or more of the 1 parties-i 1. Monopoly Pouer or Dominant Position A. 16at are the relevant product market (s) or submarket(s) for determining whether PG&E's activities under the license would create or maintain a situation inconsistent with the specified antitrust laws or the. policies underlying those laws? B. What are the relevant geographic market or submarkets for determining whether PGLE's activities under the license would create or maintain a situation inconsistent with the antitrust laws or the policies underlying those In:s? C. 1.'hether PGLE has (1) monopoly or (2) dominant position in any or all of the relevant product and geographic markets. D. Ilow PGEE acquired its monopoly power or dominant position, if any, in any or all of the relevant product and geographic carkets? O} k ~
4-( E. Whether PG&E has attempted to acquire (1) monopoly or (2) dominant penition in any or all of the relevant product and geographic markets. F. Whether PG&E has sufficient monopoly power to foreclose competition or to gain a competi-tive advantage. G. What is the structure of the relevant market, including the nature and extent of, competition for electric power,'and PG&E's relations to and arrangements with other utilities for the generation, transmission ( and sale of electric power. II. PG&E's Acts, Practices, and Policies A. Has PGLE acted to, ceas PGoE have a policy to, or has PGT " th e ab # l i t,- to: 1. liindu or preclude c c: pc.i;1 tion in any or all of the relevant product and geographic markets; 2. Hinder or preclude coupetition for sources of bulk po.:er supply,. 3. Hinder or preclude competition ~in the genera-tion, transmission, sale or exchange of bulh power: 4. Hinder or preclude other electric entities from achieving coordinated operation, coordinated \\0 \\f. t t ( planning and development, or economics of scale; I t 5. Refuse to wheci power or provide other trans-t mission services; 6. Refuse to sell bulk power; 7. Refuse to interconnect or reach an interconnec-tion agreement, delay in interconnecting or reach-4 ing an interconnection agreement, or make sham offers to interconnect or reach an interconnection agreement; 8. Refuse to coordinate or reach a coordination agreement, delay in coordinating or reaching a / l coordination agreement, or make sham offers to s coordinate or reach a coordination agreement; 9. Impose long tern contracts, 10. Impose ur. fair, unrec. con.ble, or dispropor-tionate reserve re w_re: a :e r. - 11. Allocate territories or customers for whole-sale, ret-il or transmission service, or agree not to compete; 12. Impose or attcapt to impose tying arrangements; 13. Engage in price fixing; ~ ~ 14. Prevent or frustrate other electric entities from doing business with each other; ( 15. Purchase or obtain the right to purchase output or surplus output of various generation facilities; 16. Control the dispatch of power to the detriment of other electric untities; 17. Refuse to offer reasonable contracts; 18. Limit membership in a power pool or deny others membership in a power poo1; 19. Hinder or prevent transactions betueen or among other electric entities; 20. Limit service obligations; 21. Exclude other electric entities from access to Pacific Northwest power; Engage in exclusive dealings arrangments-22. 23. Place limits on loads served by other electric
- entities, 24.
Obtain the right to execsu t rar. anis s io n
- capacity, 25.
Allocate deficiencies in other electric entities' capacity and/or energy, which entities are served in part by PG&E, first to loads in that part of the other entities' service area which is outside PG&E's service area; 26. Cause other electric entities to build duplica-tive and une'conomic transmission lines as a condi-tion to deali:o u i t h o t..e r:,, and 9 ( 27. Limit the size of generating units constructed by ot her ent i t i c, ITI. Legal Consequences of PGLE's Acts, Practices and Policies .A. Whether any one or combination of PGLE's acts, practices or policies enumerated above in conjunction with PGLE's (1) monopoly or (2) dominant position, if either is established, constitutes a situation inconsistent with the specified antitrust laws.or the policies underlying those laws.* B. Do any of the acts, practices or poli.ics of PG&E allegedly constituting unlawful maintenance of PG&E's share of a relevant market constitute a legally cognizable defense against (1) the unfair methods of another entity or group, or (2) the ef forts of another entity or grcup to concpolize that enrhet. C. Uhether any of the acts, practices or policies of PG&E allegedly constituting unlauful maintenance of PGSE's share of a relevant" market were approved or mandated by a regulatory agency or approved by Congress, and if so, what legal consequences flow therefrom. go \\%@ ' 9 kga 4 e t Concracts, Combinations or Conspiracies in Pcstraint IV. of Trade; Unfair Methods of Competition Notwithstanding PG&E's (1) monopoly or (2) dominant position or lack therc af, whether any one or combination of the items enumerated above c6nstitutes a " contract, combina-tion...or conspiracy, ir restraint of trade", or constitutes an unf air method of competition" (Sherman Act, Sl; Federal Trade Commission Act, 55). V. Essential or Uniaue Resources A. Whether PG&E, individually or wi.th others, controls access to essential or unique resources which cannot practically be duplicated by other (j electric entities. . ~- B. Whether PG6E, individually or with others, has improperly denied access to essential or unique resources. C. 1 hethcr PGLE, individually or uith others, has a strategic position in bulk power transmis-sion. D, Whether PGSE, individually or with others, has used its strategic position improperly to deny access to bulk power transmission. E. Whether PCGE, individually or with others, has improperly attempted to acquire a strategic position in bulh pouer tr.-nemi s : ion. N. - )
_ 9 ( VI. Access to Nuclear Pouer Whether PG&E's policy or policien with respect to its nuclear facilitiet, denies er pay deny me.ntin..: u ! .t e c c.... to nuclear power by other electric entities entitled thereto. VII. Primary-or Exclusive Jurisdiction 1 Whether this Commission should defer to the Federal Po'ier Commission for a determination of one or more of the issues in this proceeding. / VIII. gr,a1 Consequences What, if any, legal conseque-s flow from findings or conclusions on Issues I through VII. ( ( IX. Nexus Whether there is a nexus between the situation, if any, inconsistent with the antitrust laus and PGLE's activitico under the license < i e., uhether the siturrion inconsisicnt with the antitrust la. n woulc be create d or rai:.tainct. b; PGEE's activities under the license. X. PG&E Commitre n_t.s_. Whether the PG6E Comai.tnents are adequate to remedy a situation allegedly inconsistent with the antitrust laws. (a) Whether the acti.vities perrntted under the PCEE Commitments uould create or maintain a situation incouristent ' 'i l h t !' ' a n ! s *. r m, t 1 :' t
.o XI. License Conditions A. What, if any, 1icense condi.tions would be appro-priate or necessary as a consequence of findings and conclusions on the above issues? Does the Commission;have the power or authority to impo;c such proposed license conditions. Yne time established for discovery in this p r o c e e d in;, for a period of eight'(8) months, ccmaencing on the i e> issuance of this Order and tenninating on March 14, 1978. m ni ry may proceed simultaneously between and among the respecting all cognizable issues and methods of p
- 1 G.va
'. y. Joint discovery among some or all of the parties iath permissibic and encouraged. The parties are requested 2 to c< :n dinate all discovery in order not to require PGLE to makt o, re than one massive search of its voluminous files and r ats. Discovery practice and procedure shall be governN 1.
- S
<cc.;ssion's P.ulet of r:actice (1D CE" s 2 7/, 0 c '. : .), n n. aalogy to the Federal 1,ules of Civil l'rocedure. A clo has responded to a request for discovery shall be continuing duty to supplement his response to includc m t
- i. m fi Lion thereafter acquired, in accordance uith S 2. 7.',0 (e)
(3) o f the P,ules of Practice. Counsel for each parr.y to this p occoling shall submit concise status reports on discovery 'o the coard every thirty (30) days, commencing on Se, r 1, 197 7 a:,3 :'anthly tim rea f ter O eggO h
11 - ( DWR has filed a motion for an order directing PG&E to produce a certain document containing a description of the classification and categorization of the PG&E filing system. This document has been referr;ed to by counsel for PG&E as the "Deucy Decimal System" pf the PG&E central files. DUR has voluntarily produced a detailed written description of its filing system pricr to the,special prehearing conference. Having heard arguments of counsel, the Board grants the motion of DWR and directs PG&E to produce forthwith the requested description of its filing syste'm. The Board has previously entered an Interim Order For e. Preservation of Documents and Records (May 26, 197 7). This ( Order shall remain in effect until modified by further order of the Board. Counsel have requested a week within which to mutually agree upon a method of narrowing the scope of the interim order. The Boc.rd '.;.111 entert.in re:.t>nabic sugges-tions from counsel regarding, limiting the scope of the present. order for preservation of documents, which covers "all existing documents, files and other materials which arguably might be relevant t o any, i s s u e... '.' There is no date limita-tion on this Order, and we have overrul'ed the request of PG&E to limit preservation ~of certain documents to those extant prior to January 1, 1977, or to exclude from \\ D c
. preservation documents emanating from ongoing discu:,sionr. or negotiations. All documents relating to interconnection or any other so-called negotiationr, shall be prese"ved. Issues concerning privilege or producibility of such documents vill be resolved independently when the need arises. In accordance with the provisions of 52.751a(d), obj ec tions to this Special Prehearing Conference Order may be filed by a party uithin five (5) days after service of the Order, except that the Staff shall have ten (10) days. The Order shall control the subsequent course of the pro-ceeding unless modified for good cause. IT IS SO ORDEPID. THE ATO'1IC SAFETY AND LICENSIGG BOARD (C
- o.
s'. ' '. e / Eli.r eth 5. i,ot. e r u,..er:oer (.. ( -fD f. / ~ .i / k -. Edteard Luto n, heir.ner . ~,h, !,. o ' l [s l'i. ' 0s Marshall E. Miller, Chairman Dated at Bethesda, Maryland this 14th day of July 1977. k p,D b
UNITED STATES OF AMERICA NUCLEAR REGULATORY COM!11SSI0'4 BEFORE THE ATOMIC SAFETY ANP LICENSIriG APPEAL BOA _RD_ the Matter of ) ) iVlFIC GAS AND ELECTRIC ) NRC Docket No. P-554A 'lPANY ). ' hmislaus Nuclear Project, ) Unit No. 1) ) CERTIFICATE OF SERVICE veby certify that copies of NRC STAFF'S BRIEF IN SUPPORT OF THF FNSING BOARD'S ORDER DENYING SOUTHERN CALIFORNIA EDIS05i C0"PANY'S MOTION GUA5H SUBPOENA DUCES TECUP in the above captioned proceedinrj have been med on the following by deposit in the United States rail, first class, , as indicated by an asterisk, thr3 ugh deposit in the Nuclear Regulatory 1t ssion's internal mail system, this 18th day of April 1979: irshall E. Miller, Esq., Chairman George Spiegel, Esq. itonic Safety and Licensinn Board Robert C. McDi a rmi d, Esq. Nuclear Regulatory Commission Daniel I. Davidson, Esq. Sandra J. Strebel, Esq.
- 1ington, D.C.
20555 Peter K. Matt, Esq. w our Wenner, Esq. Bonnie S. Blair, Esq. acmic Safety and Licensing Board Thomas C. Trauger, Esq. ' 07 Morgan Drive 2600 Virginia Avenue, N.W. 1evy Chase, Maryland 20015 Washington, D.C. 20037 ard Luton, Esq. Evelle J. Younger i trnic Sa fety and Licensing Board Attorney General of Cali fornia
- i. Nuclear Regulatory Conmission Michael J. Strumwasser Deputy Attorney General of
- hington, D.C.
20555
- Cali fornia ald A. Kaplan, Esq.
555 Capitol Mall, Suite 550
- . Box 14141 Sacramento, Cali fornia 95814 hington, D.C.
20044 Morris M. Doyle, Esq. ne Saltzman, Chief William H. Armstrong, Esq. e 'titrust and Indemnity Group Terry J. Houlihan, Esq. . Nuclear Regulatory Commission Meredith J. Watts, Esq. McCutchen, Doyle, Brown & Enersen hington, D.C. 20555 Three Embarcadero Center, 28th Floor . i ! i p A. C ra ne, J.. San Francisco, Cali fornia 94111 en West, Esq. ' cha rd L. Meiss, Esq. H. Chester Horn, Jr., Esq. i 5 . aci fic Gas & Electric Company Deputy Attorney General 'J Beale Street Office of the Attorney General an Francisco, Cali fornia 94106 3580 Wilshire Blvd., Sui te 800 Los Angeles, California 90010 q%D
Docketing and Service Section Alan S. Rosenthal, Esq., Chairman Office of the Secretary Atomic Safety and Licensing Appeal U.S. Nuclear Regulatory Commission Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555
- Washington, D.C.
20555
- Clarice Turney 3900 Main Street Michael C. Fa rra r, Esq.
Riverside, California 92521 Atomic Safety and Licensing Appeal Board Atomic Safety and Licensing Board U.S. Nuclear Pagulatory Commission U.S. Nuclear Regulatory Commission Washf 3i. con, v.C. 20555 Washington, D.C. 20555
- Jerome~ E. Sharfman, Esq.
Eugene Wagner, Esq. Atomic Safety and L.icensing Appeal David N. Barry, III, Esq. Board Thomas E. Taber, Esq. U.S. Nuclear Regulatory Commission Southern California Edison Company Washington, D.C. 20555 P.O. Box 800 Rosemead, Cali fornia 91770 Irwin F. Woodland, Esq. Arthur L. Sherwood, Esq. Robert A. Rizzi, Esq. /' / Gibson, Dunn & Crutcher / ps/ 515 South Flower Street 4 Los Angeles, California 90071 ck R. Goldberg unsel for NRC Staff 7' f -4 4 0}}