ML19317E775

Motion to Resettle Prehearing Order 6.Certificate of Svc Encl

ML19317E775
Person / Time
Site:	Oconee, Mcguire, McGuire
Issue date:	04/03/1973
From:	Bannon C, Brand W, Leckie D JUSTICE, DEPT. OF
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 7912180962
Download: ML19317E775 (6)

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..s-UNITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY CO> MISSION In the Matter of -

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DUKE POWER COMPANY ) Docket Nos. (0-269A, 50-270A, (Oconee Units 1, 2 and 3 ) 5 0- 87A, 50-369A, McGuire Units 1 and 2) ) 50-370A MOTION OF THE DEPARTMENT OF JUSTICE TO RESETTLE PREHEARING ORDER NUMBER SIX The Department of Justice moves the Board to resettle Prehearing Order Number Six, dated March 22,19 73, in the following particulars: .

1. Issue 3(i) should be changed to read as follows :

Has Applicant engaged in any other activities , includ-ing litigation and attempts to influence Government acts, which demonstrate that Applicant has engaged in monopoli ation or a combination to monopolice--or are evidence of an intent of Applicant to restrain competition or show the anticompetitive character of Applicant's course of conduct?

The Department agrees that litigation and attempts to influence Government action must be a sham in order to violate the antitrust laws. The decisions of the Supreme Court in the Noerr, Pennington, California Motor Transoort and otter Tail, */ cases make this quite clear.

This proceeding under Section 105c of the Atomic Energy Act, however, is directed neither to finding violations of the antitrust laws nor to penalizing or enjoining such

• / Eastern Railroad Conference v. Noerr Motor Freight, Inc.,

765 U.S . 127 (1961) ; California Motor Transport Co. v. Truck-ing Unlimited, 404 U.S. 508 (1972); United Mine Workers v.

Pennington, 381 U.S. 657, (1965); Otter Tail Power Co. v.

United States , 41 U.S.L.W. 4293, Slip opinion 71-991 (1973).

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violations. Duke Power Company has applied for licenses to operate the Oconee nuclear generating units and construct the McGuire unit,. The Board will be asked to find that the activitics under th_se licenses would create or maintain a situation,b x .sistent with the antitrust laws or their underlying policies , and if it so finds , to condition the licenses so as to correct that situation. To correct an antitrust-inconsistent situation through nuclear facility licenso conditions is not to penalize the Applicant for exer-cising First Amendment rights or enjoin such exercise, which is what Noerr, Pennineten, California Motor Transoort and Otter Tail were concerned with avoiding. Those cases should not be applied to limit the evidence which the Board may con-sider here.

Apart from the violation--inconsistency distinction, the Department maintains that litigation or attempts to influence government cetion--even though not a sham--even though constitutionally protected--may be proper evidence of the purpose and character of other conduct alleged to be inconsistent with the antitrust laws.

For example, Applicant allegedly refuses to afford intervenors and other municipal systems access to the full benefits of large-scale generation through reserve sharing, wheeling, coordinated development, and other forms of coordi-nation. Whether or not this is inconsistent with the anti-trust laws may depend on the availability of said benefits to the intervenors and other munir.ipals from sources other 2

t than the Applicant. If no other sourcas are available, perhaps in part as a result of Applicant's legitimate Government-influencing efforts , Applicant's alleged refusal, itself, privately to provide access to these benefits takes on added antitrust significance. The facts and the results of Government-influencing conduct would be evidence of the pur-pose and character of Applicant's private course of conduct.

We rely on Pennington, wherein the Supreme Court stated:

It would of course still be within the pro-vince of the trial judge to admit this evidence ,

if he deemed it probative and not unduly prejudicial, under the " established judicial rule of evidence that testimony of prior or subsequent transactions ,

which for some reason are barred from forming the basis for a suit, may nevertheless be introduced if it tends reasonably to show the purpose and character of the particular transactions under scrutiny. Standard Oil Co. v. United States , 221 U.S.1, 46-47 ; Unitea scaces v. Reacing to. , 253 ]

U.S. 26, 43-44." Feaeral Trade Comm'n v. Genent Institute, 333 U.S. o83, 705; see also Heike v.

United s tates , 227 U.S.131,145 ; American Hedical )

Assn. v. United States, 76 U.S. App. D. C. 10, )

87-89,130 F.2c 233, 250-252 (1942) , aff'd , 317 U. S. 519 (certiorari limited to other issues) . 1 Evidence of this nature was held properly admitted in Household Goods Carrier's Bureau v. Terrell, 452 F.2d 152, 158 (5th Cir.1971) .

The Department is particularly concerned that the state-i ment of issues , adopted to indicate "the general relevancy" (Prehearing Order at 6), not be construed to prevent our establishing the admissibility of particular evidence of liti-gation and attempts to influence Government acts , whether sham or otherwise, specifically to show the~ purpose and character of other, private conduct of the Applicant.

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2. From a review of our notes and a reading of the transcript of the March 7, 1973, prehearing conference (Tr. 814-834), it appears that the Board inadvertently omitted the following issue from the prehearing order:

5(b). Is each of the conditions listed in 5(a) appropriate to remedy the situ-ation and carry out the purposes of the Act?

This issue should be designated 5(b), and 5(b) et seq.

of the Board's order should be consecutively redesignated.

The appropriateness of this issue , pointed out by Mr. Brand during the March 7,1973, conference (Tr 828-831),

is obvious in that it adopts the language of Sections 105c(6) and 183 of the Atomic Energy Act, 42 U.S.C. 52011, et seq.

and incorporates by reference Section 1 of the Act.

' Respectfully submitted, j -

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C. FORREST BA5 NAN p,' '

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u .?s . .y DAVID A. LECKIE WALLACE E. BRAND Washington, D. C.

April 3, 1973

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UNITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION In the Matter of )

DUKE POWER COMPANY Docket Nos. 50-269A, 50-270A, (0conce Units 1, 2 and 3 ) 50-287A, 50-369A, McGuire Units 1 and 2) ) 50-370A CERTIFICATE OF SERVICE I hereby certify that copies of MOTION OF THE DEPART:ENT OF JUSTICE TO RESETTLE PREHEARING ORDER NU:IBER SIX, dated April 3, 1973, in the above captioned matter have been served on the following by deposit in .the United States mail, first class or air mail, this 3rd day of April,1973:

Honorable Walter W. K. Bennett William Warfield Ross, Esquire Chairman, Atomic Safety and George A. Avery, Esquire Licensing Board Keith Watson, Esquire Post Office Box 185 Toni K. Golden, Esquire Pinchurst, Ucrth Carolina 28374 Wald, Markrader & Ross 1320 Nineteenth Street, N.W.

Honorable Joseph F. Tubridy Washington, D. C. 20036 4100 Cathedral Avenue, N.W.

Washington, D. C. 20016 J. O. Tally, Jr., Esquire J. A. Bouknight, Jr., Esquire Honorable John B. Farmakides Tally, Tally & Bouknight Atomic Safety and Licensing Post Office Drawer 1660 Board Fayetteville, North Carolina 28302 U. S. Atomic Energy Commission Washington, D. C. 20545 Troy B. Conner, Esquire Ried & Priest Carl Horn, Esquire 1701 K Street, N.W.

President, Duke Power Company Washington , D . C . 20006 422 South Church Street Charlotte, North Carolina 28201 Joseph Rutberg, Esquire Benjamin H. Vogler, Esquire William H. Grigg, Esquire Antitrust Counsel for AEC Vice President and General Counsel Regulatory Staff Duke Power Company U. S. Atomic Energy Commission 422 South Church Street Washington, D. C. 20545 Charlotte , North Carolina 28201 Mr. Abraham Braitman, Chief W. L. Porter, Esquire Office of Antitrust and Indemnity Duke Power Company U. S. Atomic Energy Commission 422 South Church Street Washington, D. C. 20545 Charlotte, North Carolina 28201 6

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David Stover, Esquire ,

Mr. Frank W. Karas, Chief Tally, Tally & Bouknight Public Proceedings Branch 429 N Street, S.W. Office of the Secretary Washington, D. C. 20024 of the Commission U. S. Atomic Energy Commission Atomic Safety and Licensing Washington, D. C. 20545 Board Panel U. S. Atomic Energy Commission Chairman, Atomic Safety and Washington, D. C. 20545 Licensing Appeals Board U. S. Atomic Energy Cc= mission Washington, D. C. 20545

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David A. Leckie Attorney, Antitrust Division Department of Justice Washington, D. C. 20530 O

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