ML19319C577
| ML19319C577 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 09/09/1974 |
| From: | Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002191013 | |
| Download: ML19319C577 (14) | |
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'SLptcmbar 9, 1974 UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and Licensing Board 4
In the Matter of
)
)
THE TOLEDO EDISON COMPANY and
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
COMPANY
)
(Davis-Besse Nuclear Power Station,
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Docket Nos. 50-346A.
Unit 1)
)
~ 50:440A
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50-441A THE CLEVELAND ELECTRIC ILLUMINATING
)
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
APPLICANTS' OBJECTIONS TO THE JOINT REQUEST OF THE AEC STAFF AND THE DEPARTMENT OF JUSTICE FOR ANSWERS TO INTERROCATORIES AND FOR PRODUCTION 0? DOCUMENTS Pursuant to Section 2 740 of the Atomic Energy Commission's Restructured Rules of Practice and Prehearing Conference Order No. 2, dated July 25, 1974, Applicants hereby raise the following objections to the " Joint Request of the AEC Regulatory Staff and the U. S. Departnent of Justice for Interrogatories and for Production of Documents by Applicants" (hereinafter " Joint Statement") on the grounds stated.
These objections are not intended, and should not be construed, as a waiver by Applicants of any rights they have in connection with the unresolved procedural issues in this proceeding, spe-cifically the issues relating to the jurisdiction and scope of this proceeding, and all such rights are hereby explicitly re-served.
80021910/3
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, 1.
Definition No. 1.1./
Applicants raise a general objection to the definition of the term " Company" as it appears in each Joint Request insofar as it includes " subsidiaries or affiliates" of the " Company" to whom the Joint Request is addressed.
Section 2.741(a) of the Commission's Restructured Rules of Practice explicitly limits requests for information served "on any other party" to those ma:erials "which are in the possession, custody or control of the party upon whom the re-quest is served * *
- Thus, to the extent that the Joint Request is seeking production by Applicants of documents in
.the possession, custody or control of " subsidiaries or af-filiates" of_ Applicants, such request is improper under the Commission's rules.
Moreover, to sweep into the Joint Request by use of an overbroad definition entities other than Applicants greatly. exaggerates the already burdensome nature of the Joint Request.
Such other companies are not parties to this pro-ceeding and as such should not be forced to engage in a file search of the nature envisioned by the Joint Request unless some substantial basis is shown as to the need for such a search
-1/. The " Definition" section of the separate Joint Requests addFessed to each of the five Applicants varied only insofar as a different Applicant was named in each definition of the term
" Company."
The numbered paragraphs, the terms defined, and the definitional language used in that section were otherwisc con-sistent in each document.
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. and a more detailed specification of the materials sought is made, as required under the Commission's rules dealing with the issuance of subpoenas duces teevg. to persons not parties
.to a proceeding (10 C.F.R. 52.720).
Finally, to the extent that the Joint Reqeust is intended to reach only those materials relating to such affiliated companies which are within the possession, custody and control of the respective Applicants, the effort is ob-jectionable on grounds of remoteness and burdensomeness.
Under this interpretation, each Applicant would have to search its files to determine whether it had any document therein which, for example, relates to requests for emergency or maintenance support.under Document Request No. 20 addressed to The Cleveland Electric Illuminating Company ("CEI") and under Document Re-quest El addressed to each of the other four Applicants.
This type of search would be virtually impossible to accomplish without considerable delay, and, equally important, would have no reasonable relationship to the issaes in this proceeding.
Accordingly, Applicants request that the def-inition of the term " Company" as used in the Joint Request be rectricted to the named Applicant, " predecessor companies and any entities providing electric service at wholesale or retail, the properties or assets of which have been acquired by the
[ named Applicant]."
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. 2.
Definition No. 3.
Applicants also raise a general objection to the definition of the term " Electric Utility" as being far too broad to serve any meaningful purpose in this proceeding.
No geographic limitation whatsoever is contained in the der-inition, so that dealings of any sort which any of the Appli-cants might have had with " electric entit'ies" located in areas of the United States far removed from the Combined CAPCO Com-pany Territories ("CCCT") would presumably be dragged into the discovery process.
Furthermore, the definition includes not only those described entities which actually own or control electric pcwer facilities, but also any other such entity which so much as " proposes to own or control" electric power facilities.
To hold Applicants to the burden of undertaking a file search for documents pertaining to all entities with which they have had some dealing that might, at one time or another, have had under consideration a proposal to own cr co.1 trol electric power fa-cilities is unduly-burdensome in the extreme.
More likely than not, Applicants would not even be aware of such a proposal.
This definition goes well beyond the definitions of " electric entities" used.by the Licensing Board in its Order Requesting Clarification of June 28, 1974 (p. 4) and in Pre-hearing Conference Order No. 2 of July 25, 1974 (ft. 10), both
. of which were restricted as to relevant geographic area and as to actual ownership and control of electric power facilities.
Applicants request that the definition of " Electric Utility" in the Joint Request be similarly restricted, with the relevant geographic area being limited to the CCCT.
i 3.
Scone of Production.
Applic. ants object to the scope of production as contemplated in the Joint Request in the following two respects:
(a)
The Joint Request designates January 1, 19o4 as the starting date for purposes of discovery in this pro-ceeding.
To require Applicants to conduct a file search for documents which are ten years old is unduly burdensome and wholly unnecessary to resolve the matters in dispute in the present inquiry.
This is not a general antitrust case, such as might be brought in a District Court, requiring review of all aspects of Applicants' behavior over an extended period; it is. a very narrow hearing under Section 105 of the Atomic En-ergy Act to ascertain only the anticompetit1*.u impact, if any, of proposed-nuclear plants scheduled to come on the line scme b
five years hence.
No useful purpose _can be served by forcing j.
Applicants to conduct an exhaustive examination of stale files which cannot'possibly contain information relevant to the present proceeding.
Accordingly, Applicants request that the discovery contemplated in the Joint Request be limited to tue period from
?
d.
January 1, 1967 to date.
It is within this tir frame that the Applicants became members of CAPCO and that planning com-menced for the construction of the nuclear plants involved here.
(b)
Applicants request that no productic.1 of documents be required with respect to documents on file and available to the public in the office of the Federal Power Com-mission, the Securities and Excht.nge Commissic 1, the Atomic Energy Commission, the Ohio Public Service Octmission, the Penn-sylvania Public Service Commission, or any other State or Federal regulatory body or office, and further, that no pro-duction be required of documents previously furnished to the AEC Staff and the Department of Justice and which are available.
In administering the similar provision of Rule 34 of the Federal Rules of Civil Procedure, courts have held that when the information is available to a party other than through discovery, resort to the discovery process will not be permitted.
See Reid v. Earper R. Brothers, 17 F.R.D. 281 (S.D. N.Y. 1955).
4.
Document Recuest No. 23c (No. 15c).2/
Applicants object to this request for all docu-ments containing the slightest mention of any sort of effect that membership in CAPCO has had on any conceivable aspect (no 2/
The reference to request "No. 23c" relates to the Joint Request made of CEI.
The parenthetical reference to "No. 15c" relates to the corresponding and identically worded request appearing in the Joint Requests separately addressed to each Applicant other than CEI.
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. matter how remote frou the issues at hand) of eaca Applicant's business or operations.
Literally construed, this request would require the production of virtually every scrap of paper or record in each of the Applicants' files since becoming a member of CAPCO.
No attempt has been made to identify the category of documents being sought with reasonable particularity, as re-quired by Section 2 741(a) and (c) of the Commission's Restruc-tured Rules of Practice; thus, the request can only be viewed as an attempt to engage in an impermissible fishing expedition at Applicants' expense.
See 10 C.F.R. Part 2, App. A, VI(a),
which explicitly provides that "In no event should the parties be permitted to conduct a ' fishing expediton' or to delay the proceeding."
It is clear that the vast majority of documents swept within this expansive request can have no possible rele-vance to the issues in this proceeding.
Particularly as to 4
all Applicants.other than CEI, no conceivable relationship can be shown to exist between the effect that CAPCO membership has had on their respective businesses and operations in the areas they service and the claims of anticompetitive conduct which this Board has been asked to' review.
No allegation has been made in this' proceeding by the Department of Justice, the AEC Staff,.or, the Intervenors that even remotely suggests that
. there exists an actual or potential "anticompetitive situation" in the respective service areas of these other four Applicants, or that the business and operations of these other Applicants in their respective service areas bears in any way on the claimed anticompetitive situation in the City of Cleveland.
Indeed, the Perry Advice Letter explicitly removes all possi-bility of sny such implication, r,tating (p. 3):
"The competi-tive situation outlined in the Department's Advice Letter dated 4
April 20, 1973, on the Beaver Valley facility [which recommended
- that there was no reason for an antit1Sst hearing] appears to be unchanged with respect to all but one of the Applicants, CEI."
To the extent that this Joint Request is actually seeking production of documents relevant to the scope of this inquiry, it must be recast so as to give Applicants some def-i
- initional fra.aework within which to comply.
An it now s*anda, it is' framed in such broad, general terms as to make compliance excessively burdensome and vexatious in light of the purpose to be served.
Until there is provided a more precise desig-nation of the documents being sought, together with a showing of some relevance between the items requested and the issues in this proceeding, it is. Applicants' position that no such production should be required.
5 Interrogatory No. 2.3/
Applicants object to this interrogatory, which requests a definition of the geographic and product markets and submarkets on which the Applicants intend to rely, as calling for precisely the sort of statement of legal conten-tions and conclusions which the courts have traditionally protected from the discovery process under Rule 33(b) of the Federal Rules of Civil Procedure.
See United States v. Mary-land and Virginia Milk Producers Association, 22 F.R.D. 300, 302 (D. D.C. 1958), where the court declared:
"It is not the purpose of discovery to ascertain what arguments the opposing party intends to use in support of his cententions."
And see United States v. Glaxo Grouc Limited et al._, 302 F. Supp. 1, 18 (D. D.C. 1969); Fisherman & Merchants '~ Bank v. Burin, 11 F.R.D. 142 (S.D. Cal. 1951).
This principle has particular application with regard to this interrogatory.
Clearly, it is not the Appli-cants' burden in the present proceeding to define the relevant markets foc purposes of antitrust review; that burden rests with the parties claiming that the proposed nuclear plants will create or maintain a situation inconsistent with the anti-trust laws.
To attempt through interrogatories to shif: that
-burden at the outset of the proceeding to the parties defending 3/
This interrogatory appears in identical form as "No. 2" in all of the Joint Requests served on the five Applicants.
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. against charges of anticompetitive conduct is an impermissible use of the discovery process.
4/
6.
Interrogatories Nos. 8 and 9.-
For the reason stated as Applicants' objection to Interrogatory No. 2, CEI objects to these interrogatories, which request statements of its legal position as to the ex-1stence of legal impediments on s. municipally-owned electric utility which would limit or preclude its (a) ownership of nuclear facilities, (b) purchase of unit power from nuclear facilities, or (c) sale of electric power within the franchised areas of other electric utilities.
See United States v. Mary-land and Virginia Milk' Producers Association, suora.
7 In conclusion, Applicants state that they obvi-ously have not had an opportunity to make even a perfunctory exanination of their files to ascertain which documents therein are subject _to production under the Joint Request.
It is likely that some individual documents within the broad categories re-quested are entitled to protection from discovery on the ground that they contain matter:of a privileged and confidential nature which is le5 ally protected from di closure.
Applicants reserve the right to assert the appropriate claim of privilege as to t
I jif These interrogatories appear only in the Joint Request addressed to CEI.
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. specific doctr.ents which are entitled to such legal protection as those documents are found in the course of Applicants' re-spective file searches, and the foregoing general objections to the Joint Request are not intended, and should not be con-strued, as a waiver of such right.
Respectfully submitted, SHAW,- PITTMAII, POTTS & TROWBR.*:DGE
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s - 2 i
By:
e-s..i5..
. u-.. _
-s Wm. Bradford Reynolds Gerald Charnoff Counsel for Applicants i
Dated:
September 9, 1974 i
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE TOLEDO EDISON COMPANY and
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
COMPANY
)
(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-346A Unit 1)
)
50-440A
)
50-441A THE CLEVELAND ELECTRIC ILLUMINATING
)
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
f CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing
" Applicants' Objections To The Joint Request Of The AEC Staff And The Department Of Justice For Answers To Interrogatories And For Production Of Documents" were served upon each of the I
persons listed on the attached Service List by U. S. Mail, postage prepaid, on this 9th day of September, 1974.
SHAW, PITTMAN, POTTS & TROWBRIDGE By:
L.'..
(
Wm. Bradford Reynolds Counsel for Applicants Dated:
September 9, 1974
o a
UNITL STATES OF AMERICA ATAMIC ENERGY COPl!ISSION
'In the Matter of
)
)
THE TOLEDO EDISCN COMPALY and )
THE CLEVELAND ELECTRIC
)
ILLUMINATING COMPANY
)
)
(Davis-Besse Nuclear Power
)
Docket Nos. 50-346A Station, Unit 1)
)
50-440A
)
50-441A THE CLEVELAND ELECTRIC
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ILLUMINATING COMPANY
)
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
SERVICE LIST John B.
Farmakides, Esq.
Mr. Chase R. S tephens Chairman Docketing & Service Section Atomic Safety and Licensing Board U. S. Atomic Energy Commission U. S. Atomic Energy Commi sion 1717 H Street, NW Washington, D. C.
20545 Washington, D. C. 20545 John H. Brebbia, Esq.
Benjamin H. Vogler, Esq.
Atomic Safety and Licensing Board Office of General Counsel Alston, Miller & Gaines Regulation 1776 K Street, N. W.
U. S. Atomic Energy Commission Washington, D.
C.
20006 Washington, D. C.
20545 Robert J. Verdisco, Esq.
Dr. George R. Hall Atomic Safety and Licensing Board Office of General Counsel U. S. Atomic Energy Commission Regulation Washington, D. C.
20545 U. S. Atomic Energy Commission Washington, D. C.
2054'S Atomic Safety and Licensing Board Panel Andrew F. Popper, Esq.
U. S. Atomic Energy Commission Office of General Counsel Washington, D. C.
20545 Regulation U. S. Atomic Energy Commission j
Washington, D.
C.
20545 t
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Joseph J. Saunders, Esq.
John R.
White, Esq.
Steven Charno, Esq.
Executive Vice President Antitrust Division hio Edison Company Department of Justice 6' North Main Street Washington, D. C.
20530
- ,xron, Ohio 44308 Reuben Goldberg, Esq.
Thomas J. Munsch, Esq.
David C.
Hjelmfelt, Esq.
General Attorney 1700 Pennsylvania Avenue, N. W.
Duquesne Light Company Washington, D. C.
20006 435 Sixth Avenue Pittsburgh, Pennsylvania 15219 Frank R.
Clokey, Esq.
Special Assistant John Lansdale, Esq.
Attorney General Cox, Langford & Brown Room 219 21 Dupont Circle, N. W.
ToJne House Apartments Washington, D. C.
- 20036 Harrisburg, Pennsylvania 17105 Wallace L. Duncan, Esq.
Mr. Raymond Kudukis Jon T.
Brown, Esq.
Director of Utilities Duncan, Brown & Palmer City of Cleveland 1700 Pennsylvania Avenue, N. W.
1201 Lakeside Avenue Washington, D.
C.
20006 Cleveland, Ohio 44114 C. Raymond Marvin, Esq.
Herbert R. Whiting, Director Assistant Attorney General Robert D. Hart, Esq.
Chief, Antitrus't Section Department of Law 8 East Long Street 1201 Lakeside Avenue Columbus, Ohio 43215 Cleveland, Ohio 44114 Deborah M. Powell, Esq.
John C. Engle, President
. Assistant Attorney General AMP-0, Inc.
Antitrust Section Municipal Building 8 East Long Street-20 High Street Suite 510 Hamilton, Ohio 45012 Columbus, Ohio 43215 Donald H. Hauser, Esq.
Christopher R.
Schraff, Esq.
Managing Attorney Assistant Attorney General The Cleveland Electric Environmental Law Section Illuminating Company' Eighth Floor 55 Public Square 361 East Broad Street Cleveland, Ohio 44101 Columbus, Ohio 43215 Leslie Henry, Esq.
Fuller, Henry, Hedge.& Snyder l
300 Madison Avenue Toledo, Ohio 43604 l
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