ML19317E767

Responds to Applicant'S Objections to Joint Discoverors' Interrogataries, Document Request & Motion for Protective Orders.Urges Denial of Applicant'S Objections.Certificate of Svc Encl

ML19317E767
Person / Time
Site:	Oconee, Mcguire, McGuire
Issue date:	12/07/1973
From:	Stover D TALLY, TALLY & BOUKNIGHT
To:	US ATOMIC ENERGY COMMISSION (AEC)
Shared Package
ML19317E764	List: ML19317E763 ML19317E767
References
NUDOCS 7912180954
Download: ML19317E767 (9)

Text

- _ _ _ - _ - - _ _ _ _ _ _ _ _ _ _ .

~

llk UNITED STATES OF AMERICA '

ATOMIC ENERGY COMMISSION In the Matter of )

DUKE POWER COMPANY Docket Nos. 50-269A, 50-270A (0conee Units 1, 2 & 3; 50-287A McGuire Units 1 & 2) 50-369A, 50-370A RESPONSE TO APPLICANT'S OBJECTIONS TO JOINT DISCOVER 0RS' INTERROGATORIES AND DOCUMENT REQUEST AND TO MOTION FOR PROTECTIVE ORDERS Intervenors (Cities of High Point, et al.) respond herein to Applicant's objections and motion for protective orders, filed 21 November 1973.

I. APPLICANT'S OBJECTIONS TO INTERR0GATORIES

1. Interrogatory 16 of Joint Discoverors asked Applicant to List all land and water rights owned or controlled by Applicant th;r. a'e considered by Applicant as poten-tially useful *  !.3 elf or to any othe ' electric utility or potential e' .ric utility for hydro lactric generation.

Applicant has briefly described three pieces of its property (at Keowee-Toxaway, Green River, and Trotters Shoals) which it considers (or in one case, which "others" consider) useful power development. It states that it owns land or water rights at no other site it considers potentially useful, to itself or others. Apparently Applicant wishes to avoid listing all the individual land and water rights in these three areas.

We believe that Applicant's objections as to burden cannot be sustained. Prelim-inarily,-we must note that the general description furnished (e.g., "along the Green River in North Carolina") is not sufficient to show whether Applicant has, or may have,. acquired lands with the design er effect of interfering with hydroelectric 79121809&y

2 development by others. There can be numerous different projects, appealing to different electric entities, on the same reach of a river. See, e.g.,

Washington Public Power Supply System v. Federal Power Cor$nission, 387 U.S. 428 (1967)(the"HighMountainSheep" case).'Tomakethejudgmentreferredto,we must know with reasonable precision (a) where Applicant's holdings are and (b) when they were acquired. Such a judgment is clearly-relevant to the issues herein.

In order to minimize the burden and expense of compliance, Intervenors suggest the following procedure: (i) Applicant will supply maps showin 'he location of its holdings in these areas, without identifying individual purchases; (ii) Joint Discoverors .Il will examine these maps and designate 'those maps or parts of maps where the detail originally requested is required, which (iii) Applicant will then supply.

Applicant's objections with rega,d to possible prejudice would be met com-pletely, in Intervenors' view, by entry of 3 orotective order as described on page 5 of the Objections. Intervenors have no objection to such an order.

2. Interrogatory 28 U is objected to on grounds of burden alone. Applicant's statement, however, goes only to the last branch of the interrogatory (complete

. listing of its contacts with Ebasco). It does not assert that stating whether it had if Or, as the case may be,, AEC Staff and the Department of Justice only.

y "Did Applicant participate in the selection of Ebasco as Greenwood County Electric Power System's enginearing consultant to prepare a study ev7.luating the proposed sale of the Greenwood. County system to Applicant? If so, what was the nature and extent of Applicant's participation? List each and every ccc. tact between Applicant and Ebasco concerning such an Ebasco study or concerning business trans-actions between Applicant and Ebasco (both prior and subsequent to Applicant's acquisition of the Greenwood County system)."

i

-l' i

i I

a hand in the selection of Ebasco as consultant in the Greenwood County study and, if so, describing its participation, would be burdensome or otherwise objectionable.

This information should therefore be provided.

The list of 167 Ebasco bills paid by Applicant is not an alternative to any of the requests made under number 28. We note that Applicant is required to report paymer;ts made to outside consultants to the Federal power Commission (FpC Form 1, pp. 354 et seq.) together with a characterization of the services paid for.

If in fact the list furnished co,rresponds to the transactions reported (as a total) in the Form 1, there must be some record available of the subject matter of these 4

transactions. No such indication has been supplied.

3. Applicant asserts that Interrogatory 30 1/ s iburdensome and asks for irrelevant material. We have adverted above to the importance of detail information on land' holdings. There is admittedly a catego y of land holdings (such as office

. building sites and parking lots) which have little relevance to present issues.

If Applicant is able to segregate such acquisitions, non-production of the data thereon would not foreseeably prejudice Intervenors. But the answer that " * *

• where Applicant's holdings may be of competitive significance, they have been identified in response to other inquiries * * *" is not an adequate response.

In the first place, the Interrogatory spoke not only of Applicant but of "any subsidiary thereof". Applicant has not represented that the holdings of its 1/ " Furnish a list of all parcels of land, interests in land, or water rights purchased since January 1, 1960, by Duke Power Company or by any subsidiary thereof.

.The list should include the name of the purchasing entity, the name of the seller, the size of the parcel of land, the nature of the interest or water right(s) pur-chased, sufficient description of the property to permit its identification on a map, and the name(s) of any waterway (s) located on or adjacent ,to such property."

e w

4 subsidiaries are all shown. In the second place, Intervenors should not be required to accept Applicant's conclusory judgment as to which of its land holdings

^

have competitive significance.

4. In discussing Interrogatory 33 0 , Applicant appears to have overlooked the fact that the Board sustained its Noerr-Pennington_ objection "without pre-judice to a renewal thereof [i.e., of discovery requests] on the showing of prerequisites required by law." Prehearing Order 2, 27 November 1972, 5 B(2)(b).

s The prerequisite referred to was greater specificity in requesting information.

See Tr. 241-242. This is what the Joint Discoverors have done in Interrogatory 33.

It is not necessary for the' Board to reexamine its position on this subject as Applicant suggests.

Applicant has suggested in discussing Document Request 6 that the Board defer ruling until after the depositions of Mayor Quis and Mr. MacPherson. Intervenors believe that this procedure, if adopted at all (and they have no objection to the Board's doing so) should apply also to any ruling on Interrogatory 33, We do not admit that the Interrogatory is moot by reason of Mr. Sood 's affidavits. Inter-venors do not mean to impugn Mr. Booth's good faith in executing them; however, it should be noted that his first affidavit, which is reaffirmed in his second, refers only to assistance to two named mayoral candidates. Interrogatory 33 is not so limited. Intervenors therefore urge that the Board either require a complete answer to Interrogatory 33 or' defer any ruling thereon until after the depositions referred to above.

M " Describe any participation or assistance undertaken by Duke Power Ccmpany

. or any subsidiary thereof in each of the following political campaigns: [ describing two specific campaigns]."

5

5. Interrogatories 34 and 35. Only a brief response is needed here:

(a) The Form 1 data is.useful so far as it goes, but it does not, in many cases, g.ive the addresses of th attorneys listed, as the interrogatory requested, and (b) it does not, in many cases, segregate retainer fees from fees for specific matters. If Applicant will (a) now supply the addresses not given in the Form 1 reportr, and (b) undertake to furnish promptly on request a breakdown between retainer and other payments for such attorneys as Joint Discoverors designate after study of the Form 1 data, Intervenors would belilling to forego present production of all the data requested. Otherwise, we must press our request.

That "mucn of the information sought" is a matter of public record is not responsive when what is not public record is necessary to understanding of the rest.

II. APPLICANT'S OBJECTIONS TO DOCUMENT REQUESTS

1. Document Request5 1 _/ is first objected to as moot in view of Applicant's objection to Interrogatory 30. This is a non sequitur. Far from deciding, as Applicant would have it, that a complete answer to Interrogatory 30 is a "prerequi-site" to responding to Request 1, the Board might consider the inquiries in reverse order and require production of those land purchase data which had some connection wi.th power generation studies. Intervenors are not advocating this procedure, but merely pointing out that Applicant's first argument does not follow.

i l

l 5_/ "All studies of and documents pertaining to the hydroelectric potential, or potential other use for power generation, of each parcel of land, interest in land, or water rights purchased as indicated in Applicant's response to interrogatory no. 30; and all documents relating to the use of such lands, interests in land, or water rights by others for power generation (including but not limited to hydro-electric generation). ,

6 With respect to " burden and scope", Intervenors see no grave prejudice in Applicant's dealing with the lands and rights in groups corresponding with the individual studies of power potential. We agree that if a 500-acre potential power

~

site is acquired in a thousand discrete half-acre purchases, there would be additional paperwork in documenting the a'ssociation of each half-acre with the generation etudy. The possibility of handling this item in that fashion should be explored before Applicant, or the Board, concludes, that this request is too burdensome.

2. Document Request 2 N. Intervenors believe that a practical solution to Applicant's objections here could be based on Applicant's proposal. We would suggest that Applicant supply all relevant (meaning, in Intervenors' view, " relating to the electric operations, service, or sales of Applicant or any other electric utility") clauses (regardless of how often used), as it proposes. Joint Discoverors would retain the right to call for specific classes of further documents as to specific clauses, following a study of the clauses themselves.

3. Document Request 4 2/. We understand Applicant to challenge the relevance of this item. Applicant is respectfully referred to Northern Pacific Railway Co.

v. United States, 356 U. S. 1 (1958).

E "All documents relating to limitatic'1s on the use of any parcels of land, interests in land, or water rights sold during the period January 1,1960, to the present by Duke Power Company or any subsidiary thereof."

2/ "All documents relating to the provision of utility services to properties sold by Duke Power Company or any subsidiary thereof."

~

7 ,

DocumentRequest6./. 8

4. Intervenors' position here is described under the corresponding Interrogatory, number 33. We would point out, however, that with respect to the paragraph quoted from Prehearing Order 6 (Applicant's Objections ,

p. 21), Intervenors maintain that attempts to govern the outcome of elections in cities whose electric systems compete with Applicant's are attempts "to interfere directly with the business relationships of a competitor."

s III. ALPLICAtlT'S MOTI0tlS FOR PROTECTIVE ORDERS Intervenors have no objection to protective orders limiting access to documents under Interrogatory 16 and Document Requests 3 and 7 to counsel for the AEC Staff and the Department of Justice.

~

IV. -GENERAL MATTERS Intervenors have attempted in this pleading to suggest ways in which adequate, if not complete, discovery might be had at less cost and with less expenditure of time. We do not claim that these suggestions represent the position of any other party, but our own belief is that they are worthy of exploration.

WHEREFORE, Intervenors respectfully urge that the 30ard deny Applicant's objections and other prayers except as specifically consented to herein.

4 Respectfully submitted, y $Y CL s ) 197]f) -

TALLY & TALLY Attorneys for Intervenors "All documents relating to the participation of Duke Power Company or any subsidiary thereof in the Statesville and High Point election campaigns referred to in interrogatory no. 33."

.~

.o .

UNITED STATES OF AMERICA ATOMIC ENERGY C041ISSION I'n the Matter of )

DUKE POWER COMPANY ) Docket Nos. 50-269A, 50-270A (0conee Units 1, 2 & 3 ) ~ 50-287A, McGuire Units 1 & 2) ) 50-369A, 50-370A CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing documents in the above-captioned matter have been served on the following bF deposit in the United States mail, first class or air nail, this .7th day of December,1973:

Walter W. K. Bennett, Esquire Troy B. Connor, Esquire P. O. Box 185 Connor & Knotts Pinehurst, North Carolina 28374 1747 Pennsylvania Avenue N.W.

Washington, D.C. 20006 Joseph F. Tubridy, Esquire 4100 Cathedral Avenue N.W. Joseph Rutberg, Esquire Washington, D.C. 20016 Benjamin H. Vogler, Esquire Antitrust Counsel for AEC John B. Farmakides, Esquire Regulatory Staff Atomic Safety and Licensing Atomic Energy Commission Board Panel Washington, D.C. 20545 Atomic Energy Comnission Washington, D.C. 20545 Mr. Frank W. Karas, Chief Public Proceedings Branch Atomic Safety and Licensing Office of the Secrotary Board Panel of the Commission Atomic Energy Commission Atomic Energy Ccmmission Washington, D.C. 20545 Washington, D.C. 20545 Abraham Braitman, Esquire Joseph Saunders, Esquire Special Assistant for Antitrust Division Antitrust Ma'tters Department of Justice Office of Antitrust and Washington, D.C. 20530 Indemnity Atomic Energy Commission George A. Avery, Esquire Washington, D.C. 20545 Toni K. Golden, Esquire Wald, Harkrader & Ross 1320 19th Street N.W.

Washington, D.C. 20036

- 4

' ~

David A. Leckie, Esquire Antitrust Public Counsel Section .

Department of Justice

P.O. Box 7513 Washington, D.C. 20044

]

4 Wallace E. Brand, Esquire Antitrust Public Counsel Section P.O. Box 7513 Washington, D.C. 7]O44 TALLY & TALLY By: AfA 4't%.-- ==-

Attorneys for Intervenors l .

Suite 307 j 1300 Connecticut Avenue N.W.

. Washington, D.C. 20036 and P. O. Box 1660 Fayetteville, North Carolina 28302 l

4 e

S e

--a , _