ML19326D421

Responds to Applicant 730409 Motion to Compel Document Production & DOJ Motions for Protective Orders & to Compel Document Production by Applicant.Certificate of Svc & Correspondence Re Document Production Encl

ML19326D421
Person / Time
Site:	Midland
Issue date:	04/17/1973
From:	Bannan C, Brand W, Leckie D JUSTICE, DEPT. OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8006110438
Download: ML19326D421 (10)

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

CONSULERS POWER COMPANY Docket Nos. 0-329 (Midland Plant, Units 1 and 2) ) -

A ANSWER OF THE DEPARTMENT OF JUSTICE TO APPLICANT 'S MOTION TO COMPEL PRODUCTION OF DOCUMENT AND MOTIONS OF THE DEPARTMENT FOR PROTECTIVE ORDERS AND TO COMPEL PRODUCTION OF DOCULENTS BY APPLICANT Pursuant :o Sections 2.740(f)(2) and 2.740(c) of the Commission's Rules, 10 C.F.R. , Part 2, the Department of Justice answers Applicant's motion to compel production, dated April 9,1973; and further moves the Board for a protective order denying discovery of the document sought by Applicant. i l

In the alternative , should the Board order the document I produced , the Department moves for a protective order' limit-

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ing its distribution strictly to Applicant's counsel in this proceeding, with timely notification to Intervenors and the l Department prior to any further disclosure in the proceeding, so as to permit application for an additional protective order. Finally, again should the Board order this document discovered, the Department moves that Applicant be ordered

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likewise to produce its documents relating' to current negotia-tions--which it now reveals have been withheld according to l 06 110

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-s Keith S. Watson's letter of April 10, 1973, Appendix A hereto)--to the Intervenors and the Department, with such conditions for confidentiality as the Board deems appropriate.

The document sought by Applicant is a report dated February 14, 1973, prepared by Daverman Associates, engineer-ing consultants to the Michigan Municipal and Cooperative Power Pool (MMCPP), summarizing a meeting of Pool members held at the Daverman offices on that date. The subject of this meeting was Applicant's contract proposal of January 29, 1973, to the MMCPP, the reaction of its members to this proposal, and contemplated counterproposals to parts of Applicant's offer.

Mr. A. J. Hodge , of Daverman Associates , included this conference report with other material recently forwarded to the Department (see Department's document No. 8799 made available to Applicant on discovery, attached as Appendix B).

According to counsel for Intervenors , Mr. Hodge had apparently misunderstood instructions from Mr. A. E. Steinbrecher, manager of Northern Michigan Electric Cooperative , concerning what material was to be forwarded. Thus we are in possession, apparently by mistake, of an MMCPP internal memorandum

- detailing its bargaining position and objectives in future negotiations with Applicant.

Clearly, fisclosure of this information, even if limited

' to Applicant's attorneys in this proceeding, would be patently unfair and prejudical to the MMCPP.

In the process of contract

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negotiation, if one side becomes totally informed as to the objectives of the other, it achieves a significant bargaining advantage.

Per Chairman Garfinkel's conference call of April 11, 1973, the Department is submitting the document for in camera inspection by the Board. We believe an examination of the document will show that it would be o f little or no value to Applicant in preparing for this hearing. If anything, it helps the cases of the Department and the Intervenors by illustrating MMCPP's desire for coordination with Applicant and its problems with the terms offered by Applicant. We submit that the Board, in ruling on these motions should weigh the negligible benefit to Applicant of disclosure against the substantial prejudice to the MMCPP.

Should the Board nevertheless order discovery, we believe that a protective order strictly limiting dis tribution to counsel in this proceeding would be necessary to minimize the damage to MMCPP. Under such an order, if counsel for Applicant, after examining the document, believes it necessary to introduce or otherwise disclose the document in this pro-ceeding,. they would timely notify the Intervenors and the Department so as to permit application for an order protecting against such introduction or disclosure.

Applicant has suggested that this procedure would be

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satis factory to it (Motion to Compel, p.._2) . j

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Should the Board nevertheless rule that internal docu-ments regarding current negotiations are subject to discovery, this burden should be made to fall upon Applicant as well.

We have obtained nct documents of this sort from the Appli-cant, despite its claim to the contrary. Of the documents it has provided us -(only after securing our promise to hold them confidential and to advise counsel beforehand if ever we sought to use them herein--the documents referred to on page 2 of Applicant's April 9,1973, Motion to Compel),

none concern Applicant's current negotiations with MMCPP.

Most are correspondence to or from Applicant--material

.already in the hands of the MMCPP as the sender or recipient, and hardly confidential to Applicant. The most recent internal document of Applicant regarding negotiations with MMCPP that it has provided , " confidentially," is dated .

January 13,1971--more than five months be fore the Department l rendered its antitrust advice to the Atomic Energy Commission in this matter. On April 2 1973, Applicant advised us that ,

additional documents were available completing its document production under the First Joint Request as the Board had

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directed , except for matters deemed privileged (see letter of Keith S. Watson, dated April 2, 1973, attached as Appendix C). We duly obtained those doduments for copying. Then on April 9, for the first time, Applicant informed us that it had additional nonprivileged documents Hos. 25375-25391 and 25427225431--

documents ostensibly relating to current negotiations--and would

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withhold those documents from production pending the Board's ruling on its April 9 Motion to Compel (see Appendix A). We ask that the Board, if it orders production of MMCPP's internal current negotiation document, out of fairness require Applicant to produce. the alleged current negotiation docu-ments it now admits to withholding--as well as any other current negotiation documents, internal or otherwise, that may be responsive to the First Joint Request.

Respectfully submitted,

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C. F01UEST BANNAN a

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j DAVID A. LECKIE WALLACE E. BRAND Attorneys, Antitrust Division Department of Justice April 17,1973 Washington, D. C.

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, APPENDIX A LAW OFFICES WALD, H ARKR AD ER & ROSS .

RCsERTL.wALO CARLETON A. M ARNR ADER 8320 NINETEENTH STREET. N W . WASHINGTON. D. C. 20036 wM.wARr ELD ROSS STERMEN O IVES JR AREA CODE 202 DO N ALD M. C R E E N 296-2:21 TM M AS C TTH EW S. J R JOELE.MOFFMAN LE,X A N D R SIERCN PHIL P ELM N TERRENCE R. MURPHY NEAL P. RUTLEDG E EPHEN T U 0"TN*

• fw"$'O N April 10, 1973 TO NI N.GQLDEN JAM ES COUGLAS wCLCM ROBERT A. SKITOL THOMAS w. 8 RUNNER

• 8 MOT AOMeTitO f N D C.

Wallace E. Brand, Esquire Antitrust Public Counsel Section P. O. Box 7513 .

Washington, D.-C. 20044 Re: Consumers Power Company, Midland Plant Units 1 and 2, AEC Docket Nos. 50-329A, 50-330A, Department of Justice File No. 60-415-20

Dear Mr. Brand:

Please be advised that document pages numbered 25375 to 25391 and 25427 to 25431 are being withheld from the normal

/ production process since they relate to negotiations currently in progress between Applicant and other entities, including MMCPP members who are intervening parties in this proceeding.

Although a confidentiality arrangement would crdinarily appear to be in order (see my letter to you dated February 7, 1973), the Department has taken the position in Mr. Bannan's letter of April 2, 1973, that such arrangements are not appro-priate. Since this issue is now before the Board pursuant'to our Motion to Compel filed yesterday, we do not deem disclosure of the aforementioned documents to be called,for pending the Board's ruling in this regard.

Sincerely, ,

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Mt Keith S. Watson U-s Q KSW:asl- -

cc: ' James Carl Pollock, Esquire -

Joseph Rutberg, Esquire e

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APPENDIX B DAVERMAN ASSOCIATES.INC . ARCHif S ENGINEERS. 200 MONROE N W . GRAF, APIDS. MICHIGAN 49502 3 (616) 451-3525

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_j February 16, 1973 J.C.L. l DA 7111-24 L-*" d Mr. Wallace Brand

.' Anti-Trust Division U. S. Departcent of Justico P. O. Box 7513

'Vashington, D.C. 20044

Dear Mr. Brand:

At the request of Mr. A. E. Steinbrecher, Manager, Northern 11ichigan Electric Cooperative, we are sending you one ccpy each of the following:

1. Late::t contract proposal from Consumers Power Co.,pany to the flichigan 11unicipais & Cooperatives Power Pcol . Proposal bears the date of 1/29/73. (Note that this is an interchange Agreement, but does not include a schedule for purchase of firm cepaci ty and energy. Consumers proposed that firm purchases be handled under a separate form of cen tract using Consumers' FPC filed "PP-l" tariff; see following item.)

', 2. Contract forn prcpesed by Censu.ers for firm purchasas required by interchange Agreement dated I/1o/73. (Note that "PP-1" schecule is based on kVA demand, while interchange Agreement is based on kW demand for the tyres of interchange involved; this would pose control problems since both contracts would have to work through the sama interconnection (s).

Also, "PP-1" contract does not provide for multiple points with respect to metering and bl.Iling, whereas Interchange Agreement is clear on multiple points and intergration of ~

metering.)

3. "PP-1" schedule with increased rates as filed with FPC in conjunction with request for permission to increase wholesale rates.

4. Daverman Asscciates' conference report of February 14, 1973, covering l'.;1CPP necting and proposed counter proposals to parts of Consumers' latest contract proposal.

Very truly yours, DAVERitAN ASSOCIATES, INC. "

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A. 'J. Hodge 'j. '

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A. E. Steinbrecher

-John N. Keen c0; a -

Robert Sablon, (wi th attachment)

APPENDIX C

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LAW OFFICES WALC. H ARKR ADER & ROSS ROSCRT L WALD CARL ON A. M ARN R ADER 8320 NINETEENTH STREET. N W..WASHtNGTON. D. C. 20036 STEPH EN 5. IVES. J R OONALD H GREEN ARsA CODE 202 S ELMA M. levin E ""-*

THOM AS C. M ATTHEWS. JR GSM ADDRESS. WAWM JOELE.HOFPMAN GEORGE A. AVERy OFCOUNSEL ALEXANDER W SIERCK PMtLIR ELMAN TERRENCE R. MURPHY N EAL P. RuTLEDG E WI LLI A M R. WEISSM AN STEPHEN M. TRuiTT JAM ES . ws TC

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JAM ES DOUGLAS WELCH ROBE RT A. SMITOL THOMAS w. BRuMNER e eNOT AOpsTTED $N O. C.

Wallace E. Brand, Esquire Antitrust Public Counsel Section P. O. Box 7513 Washington, D. C. 20044 Re: Consumers Power Company, Midland Plant Units 1 and 2, AEC Docket Nos. 50-329A, 50-330A, Department of Justice File No. 60-415-20 Dec.r Mr. Brand:

I am pleased to advise that additional documents in response to the Joint Document Request are available for ins-

.pection in accordance with procedures set out in my letter of October 16, 1972. Subject to the Board's orders and under-standingsof counsel, this submission completes production of non-privileged documents in response to discovery demande served upon Applicant in this proceeding.

1 We will advise shortly concerning those documents I which Applicant deems to be privileged.

Sincerel ,

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- S. W tson KSW:asl cc: Board members -

Joseph Rutberg, Esq.

James Pollock, Esq.

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e' UNITED STATES OF A> ERICA BEFORE THE ATOMIC ENERGY C01CIISSION In the Matter of )

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CONSUMERS POWER COMPANY )

(Midland Plant, Units 1 and 2) Docket Nos. 50-329A

) 50-330A CERTIFICATE OF SERVICE I hereby certify that copies of ANSWER OF THE DEPART >ENT OF JUSTICE TO APPLICANT S MOTION TO COMPEL PRODUCTION OF DOCU MOTIONS OF THE DEPART >ENT FOR PROTECTIVE ORDERS AND TO COM PRODUCTION OF DOCUMENTS BY APPLICANT dated April 17, 19 73, in the above-captioned matter have been serv,ed on the following by deposit in April, of the United 19 73 : States mail, first class or air mail, this 17th day Honorable Jerome Garfinkel Atomic Safety and Licensing Chairman, Atomic Safety and Board Panel Licensing Board U. S. Atomic Energy Commission U. S. Atomic Energy Commission Washington, D. C. 20545 Washington, D. C. 20545 i

Honorable Hugh R. Clark Chairman, Atomic Safety and

. Licensing Appeals Board Post Office Box 127A U S. Atomic Energy Commission Kennedyville, Maryland 21645 Washington, D. C. 20545 i l

Honorable J. Venn Leeds, Jr. Mr. Abraham Braitman, Chief Post Office Box 941 {

Houston, Texas 77001 Office of Antitrust and Indemnity '

U. S. Atomic Energy Commi~ssion Washington, D. C. 20545 William Warfield Ross , Esquire Keith S. Watson, Esquire Harold P. Graves, Esquire Wald, Harkrader & Ross 1320 Nineteenth Street, N.W. Vice President and General Counsel Washington, D. C. 20036 Consumers Power Company 212 Wes t Michigan Avenue Honorable Frank Kelly Jackson, Michigan 49201 Attorney General ,

Joseph Rutbarg, Esquire State of Michigan Benjamin H. Vogler, Esquire Lansing, Michigan 48913 Antitrust Counsel for AEC Robert A..Jablon, Esquire Regulatory Staff '

2600 Virginia Avenue, N.W. U. S. Atomic Energy Commission Washington, D. C. Washington, D. C. 20545 20037

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Mr. Frank W. Karas , Chief Public Proceedings Branch Office of the Secretary of the Comission U. S. Atomic Energy Comission Washington, D. C. 20545 C. Forrest Bannan Attorney, Antitrust Division i

Department of Justice Washington, D. C. 20530 t

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