ML19329E678

Requests That Attached Subpoena Duces Tecum Be Ordered & That Documents Requested in Encl Be Provided

ML19329E678
Person / Time
Site:	Midland
Issue date:	01/24/1974
From:	Jablon R, Joseph E Pollock MICHIGAN MUNICIPAL COOPERATIVE POWER POOL, SPIEGEL & MCDIARMID
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19329E679	List: ML19329E678 ML19329E682 ML19329E683
References
NUDOCS 8006160454
Download: ML19329E678 (6)

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, j p -T.l UNITED STATES OF AMERICA

.* BEFORE THE ATOMIC ENERGY COMMISSION In the Matter of ) Docket Nos. 50-329A Consumers Power Company ) 50-330A Midland Plant (Units 1 and 2) )

APPLICATION FOR SUBPOENA The Joint Interveners respectfully request that the attached subpoena duces tecum (Appendix A) be ordered, and that the documents requested (Appendix B) be provided.

TO: Mr. Arthur Land, Consumers Power Company Jackson, Michigan In support whereof, Joint Interveners state:

1. On information and belicf, Arthur Land is a reg-istered lobbyist in the state of Michigan for Consumers Power Com-pany (See Appendix C, excerpts of depositions of Judd L. Bacon and Alphonse H. Aymond)

, 2. Consumers Power Company has made it clear that it views the existence of legislation, including the "25 percent rule", ! which creates barriers to entry or restricts markets, as a defense to claims that it is acting in violation of antitrust law or principles.

• / Michigan Constitution, Article VII, S24.

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7) , s E.g., prepared testimony of Joe D. Pace, pg. 37 "The barriers to competition for meeting the bulk power requirements of retail areas served by Consumers Power are of two fundamentally different types. The first type is barriers imposed by law. I am advised that cooperative electric utility systems are prohibited by statute from initiating service to any community of 1,500 population or greater. This prohib-ition covers both direct retail service and bulk power supply service. Thus, the great portion of the area served at retail by Consumers Power legally could not receive bulk power from a co-operative supplier. Moreover, I understand that it is against REA policy to provide cooperatives with funds for generation and transmission equip-ment if adequate facilities are available in the area.

" Municipal electric systems also face substantial legally imposed barriers to competing with Con-sumers Power Company's own generation for service to areas served at retail by Consumers. I am advised that under Michigan Law, municipal systems cannot sell outside their corporate limits power equivalent to greater than 25 percent of the power sold within their corporate limits. Apparently, already many systems are approaching this limit."

3. Consumers Power Company "readily concedes" that it "is, by the nature of its business, thrust into the political and legal process at several levels" " Applicant 's Reply to the Answers of the Department of Justice and the Interveners", p. 8 (November 15, 1972). The President and Chairman of the Board of Consumers Power Company has admitted supporting legislation limiting 1

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the sales of interveners. Furthermore, the Company supports a full time lobbying office in Lansing. It is reasonable to con-clude that the Company's lobbying activity is extensive and not incidental (Appendix C). ,

4. If the existence of restrictive legislation is to be used either to defend Applicant's conduct or to support infer-J ences concerning the growth potential, competition or other econ-omic factors pertaining to interveners, it is important to know whether these limitations result from actions of Applicant. See, Sacramento Coca-Cola Bottling Co. , v. Chauffeurs Local 150, 440 F2d 1096, 1098-1099 (CA9, 1971) cert. denied 404 US 826, (1971);

Georae R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F2d 25, 31-34 (cal, 1970), cert. denied 400 US 850 (1970) ; Woods Exoloration and Producing Co. v. Aluminum Co. of America, 438'F2d 1286 (CAS, 1971) cert. denied, 404 US 1047 (1972); Hecht v. Pro-Football Inc., 444 F2d 931 (CADC , 1971), cert.. denied, 404 US 1047 (1972).

5. Furthermore, there is evidence that Consumers Power's political activities may have passed legally permissible limits --

or at least may be such not to permit reliance by the Company as a defense to other anti-competitive activities. Thus, as has been #

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previously related to the Board, a $6,000 payment was made by Consumers Power Company, Detroit Edison Company and Michigan Bell l

Telephone Company to a close assistant and advisor to the Governor of Michigan. " Motion for Reconsideration of the Trial Board's .

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November 28, 1972, Order and Motion to Compel" pp. 8-14 (June 2 9, '

1973). A different payment has been the subject of the following

. comment by the Michigan State Attorney General in the current Con-sumers Power rate case before the Michigan Public Service Commission:

"Mr. Larkin made an adjustment in the amount of $2,000 to eliminate a fee paid to Donald Gordon, former Executive Assistant to the Governor. The fee was paid in connection with a press report allegedly prepared by Mr. Gordon, but with respect to which there is no evidence that he had anything to do 4

with the preparation. Therefore, this ad-justment should be adopted by the Commission. "

Consumers Power Comnanv. Case Nos. U-4331. 4332, "Brief of At-torney General in Opposition to Permanent Rate Increases ", p. 23 (December 7, 1973).

.6. As the. Board is aware, inquiry concerning the 25%

rule has been permitted by the Board in connection with the De-partment of Justice direct case. There has been considerable testi-mony in this regard. Absent obtaining additional evidence about Consumers Power's efforts to maintain this rule, the present. record may be misleading concerning Michigan public policy.

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7. In view of the Board's directions of January 2.7, 1974, we limit this subpoena request to documenta concerning changes in the "25 percent rule" and payments which may have affected such legislation. In so doing, we do not waive our position that broader inquiry into Applicant 's attempts to influence or maintain legis-lation should have been allowed. E.g., Joint Document Request 3 (e) , 5(k).

WHEREFORE, for the foregoing reasons, Joint Intervenors request issuance of the attached subpoena.

Respectfully submitted,

'% 0. bh Robert A. Jablon James C. Pollock Attorneys for Intervenors Coldwater, Grand Haven, Holland, Traverse City and Zeeland, Michigan, the Michigan Municipal Electric Association, the Northern Michigan E.'.ectric Coopera-tive and the Wolverine Electric Co-operative.  ;

1 January 24, 1974 Law Offices Of:

Spiegel & McDiarmid 2600 Virginia Avenue, N.W. _

Washington, D.C. 20037

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AEC DISTP "ITICN FCR PART 50 DOCKET MATE?' "

(TE1PORARY FORM) CONTROL NO: P>

FILE: ANTITRUST FROM: DATE OF DOC DATE REC'D LTR MEMO RPT OTHER SIcretary of AEC Unhington, D.C. 1-29-74 1-31-74 TO: ORIG CC OT!IER SENT AEC PDR _

AEC SENT LOCAL PDR PROP INFO INPUT NO LYS REC'D """7 UO:

CLASS UNCLASS XXXX 30A DESCRIPTION: ENCLOSURES:

No ltr of trans rec'd with Hearing Transcripts HEARING TRANSCRIFIS for Midland Units 1 & 2 PAGES 4646 thru 4819 dtd 1-29-74 DO NOT REMOVE PLANT NAME: Midland Units 1 & 2 ACYNnunsr3GED

( 2 cys rec'd )

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