ML19329F008
| ML19329F008 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 11/28/1972 |
| From: | Clark H, Garfinkel J, Leads J Atomic Safety and Licensing Board Panel |
| To: | CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| References | |
| NUDOCS 8006190791 | |
| Download: ML19329F008 (10) | |
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of
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Docket Nos. 50-329A CONSUMERS POWER COMPANY
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50-330A (Midland Plant, Units 1 and 2)
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ORDER RULING ON APPI,ICANT'S OBJECTIONS TO DOCUMENT REQUESTS, THE DEPARTMENT OF JUSTICE'S MOTION TO COMPEL THE PRODUCT-ION OF FOUR CATEGORIES OF DOCUMENTS, AND APPLICANT'S MOTION FOR PROTECTIVE ORDERS Before ruling on the specific matters raised by the parties, a brief statement by this Board dealing with the appropriate scope of discovery would be apropos.
The Department of Justice is given 180 days during which to obtain facts from which it can draw conclusions for trans-mittal to the Atomic Energy Commission in the form of a j
" Letter of Advice".
The Commission's Rules of Practice contemplate that the Board in the first prehearing con-ference will reach agreement with the parties as to the relevant matters in controversy and will set them forth in the prehearing conference Ord'er.
Under Section 2.740 of the Restructured Rules, discovery with regard to such I
relevant matters in controversy may be had by the partien.
It is not the purpose of discovery to explore matters not F
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. in controversy.
With these principles in mind, we now turn to the specific items before us.
Applicant's first objection is to request no 2 --
file indexes and documents describing Applicant's filing system.
Unless we take the position that all of Applicant's files are relevant to the matters in controversy, a position we do not take, then this request calls for irrelevant material.
The Department of Justice argues that the data requested will enable it to locate relevant material.
We do not agree.
With the issues c1carly drawn, the Department should be able to frame requests appropriately limited to relevant material.
Accordingly, Applicant's objection to this request is sustained.
Applicant next objects to requests for documents relating to Applicant's political activities (Request 3(e)).
The Department argues that under the guise of appropriate political activitics, the Applicant may have practiced a mere sham to engage in forbidden activities.
Whether or not Applicant has engaged in unfair practices through polit aal maneuvers is a matter not relevant to the issues in controversy; more particularly, issues pertaining to
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d coordination.
Under the Commission's Notice of Antitrust
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Hearir.g, dated April 11, 1972, this Board may not address itself to matters not in controversy.
Consequently, we agree with Applicant's arguments concerning the invalidity of the request.
The objection is sustained.
The next matter relates to request no.
4, calling for minutts of pooling and coordination committee meetings.
All' parties agree that the requested documents include many which are irrelevant.
The Department of Justice argues that it cannot tell what is relevant without examining all of the files.
This type of argument, if carried to its logical conclusion, would give the Department of Justice access to all of Applicant's documents, a procedure forbidden by i
Section 2.740.
The request is hereby limited to those documents which deal with Applicant's power to grant or deny access to coordination, and those documents dealing with the use of this power against smaller utility systems.
As so limited, Applicant is required to produce the documents.
Applicant objects to the production of documents relating to its gas operations on the ground that they are not relevant.
Possibly, Applicant may have used its gas operations to
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How-ever, even if it has done so, it is not a relevant matter in controversy.
Misbehavior not directly related to coordination activities is not relevant.
Therefore, the objection is sustained.
Applicant objects to the request for all documents in certain files - - request no. 10 - - pertaining to each wholesale customer.
The Department of Justice argues that the main thrust of the inquiry concerns the various means and techniques by which Applicant is believed to have retained and expanded its monopoly of bulk power supply at the expense of these very wholesale customers.
The theory appears to be that, by refusing coordination with its wholesale customers, Applicant has been able to achieve and expand a monopoly in bulk power supply.
All documents in these files relating to or discussing attempts of the whole-sale customers to obtain coordination-are relevant to the matters in controversy.
Such documents must be produced.
The remaining documents in these files are irrelevant.
As to them, Applicant's objection is sustained.
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Request no. 23 - - Applicant's income tax returns.
Applicant has indicated that it will attempt to show healthy competition between itself and the smaller utility systems and, as an item in such showing, tax differentials will be discussed.
Income tax returns are not privileged, as Applicant admits.
There is no burden in producing them and they are an appropriate sources of tax information.
The objection is overruled.
The Department of Justice has filed a Motion to Compel Production of Documents which predate January 1, 1960.
Applicant strenuously objects to the production of such documents as burdensome and irrelevant.
It is the opinion of the Board that the Applicant's present economic position and the nature of its recent activities can be shown ade-quately with documente dated on and after January 1, 1960.
However, it is recognized that the negotiations which form i
i' the basis of executed agreements may have encompassed a i
l substantial period of time.
Thus, in this case, contracts executed after January 1, 1960, may have had their origins l
l prior to that date.
Since negotiations may explain the l
intricacies of a written contract, the request of the Department of Justice is valid.
Therefore, Applicant is s
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- G-required to produce documents prior to January 1, 1960, which form part of the recoris of negotiatio.ns of each coordination contract executed by Applicant after January 1, 1960.
As thus modified, the motion is granted.
Lastly, the Applicant objects to the production of those portions of three manuscript.s relating to events prior to January 1, 1960, althoug1 the manuscripts them-selves were prepared subsequent to January 1, 1960.
In all likelihood, many documents dated past January 1, 1960, will mention events prior to that date.
This is inherent in any agreed upon date.
Applicant's objection is contrary to the agreed upon scope of discovery and is denied.
Based on the foregoing rulings, the Board sees no need at this time in granting Applicant's motion for protective orders.
s In reaching our decision on the objections, we gave no weight to the supplemental memoranda. filed by the Applicant without leave of the Board - - although a motion for leave was filed with each memorandum.
At this point, we wish to indicate our unfavorable reaction to a motion for leave to file supplemental memorandum and, at the same time, have
' the memorandum attached.
This approach presumes that the motion will be granted.
On the other hand, if not granted, it will be difficult to alter the impression that the Board was influenced by an unacceptable document.
Accordingly, in the future, any motion for leave to file a supplemental memorandum will not be accompanied by that document.
Only upon the granting of the motion, will the memorandum be filed.
No reasonable need has baen shown for an oral argument and Applicant's requert therefor is denied.
IS IS SO ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD C
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J/. V. Leeds, Jr.,hjember
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l Hu~gh K. Clark, Member
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{,% W J-geromeGarfinkel,Cl3 airman 1
Issued at Washington, D. C.,
this 28th day of Navember, 1972 9
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION
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In the Matter of
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CONSUMERS POWER COMPANY
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AEC Docket No. 50-329A (Midland Plant, Units 1 and 2) 1 NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter.
In accordance with 12.713,10 CFR Part 2, the following information is provided:
Nare:
Robert J. Verdisco Address :
U. S. Atomic Energy Commission Washington, D. C. 20545 Telephone Number:
Area Code 301, 973-7268 (Or Code 119, Ext. 7268)
Admission:
District of Columbia Court of Appeals Nara of Party:
Regulatory Staff U. S. Atomic Energy Commission Washington, D. C.
20545 Respectfully submitted, ab~
. []bu6' a Robert J.dVerdisco Counsel fbr AEC Regulatory Staff Dated at Bethesda, Maryland this 22nd day of November,1972.
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of CONSUtERS POWER COMPANY
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Docket No. 50-329A
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S0-330A (Midland Plant, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of NOTICE OF APPEARANCE, dated November 22, 1972, in the above captioned matter have been served on the following by deposit in the United States mail, first class or air mail, this 22nd day of November 1972:
Jerome Garfinkel, Esq., Cnairman James F. Fai rman,.1r., Esq.
Atomic Safety and Licensing Board 2600 Virginia Avenue, N. W.
U. S. Atomic Energy Commission Washington, D. C.
20037 Washington, D. C.
20545 Wallace Brand, Esq.
(3)
Hugh K. Clark, Esq.
Department of Justice i
P. O. Box 127A Room 8107, Star Building Kennedyville, Maryland 21645 1101 Pennsylvania Ave., N. W.
Washington, D. C.
20530 Dr. J. V. Leeds, Jr.
P. O. Box 941 James Carl Pollock Houston, Texas 77001 Suite 312
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William Warfield Ross, Esq.
Keith S. Watson, Esq.
Wald, Harkrader, Nicholson & Ross Harold P. Graves, Esq.
132019th Street, N. W.
Vice President and General Counsel Washington, D. C.
20036 Consumers Power Company 212 West Michigan Avenue Honorable Frank Kelly Jackson, Michigan 49201 Attorney General State of Michigan Atomic Safety and Licensing Board Panel Lansing, Michigan 48913 U. S. Atomic Energy Commission Washington, D. C.
20545 l
of dsept}(RutDbrg titvust Counsel fo AEC Regulatory Sta.
.. DISTRIBUTION:
GIG Central Files Public Document Rm Local Public Document Rm Frank U. Karas, SECY (3)
A. Braitman. L:0AI (2)
ASLB (James Yore)
Office of Antitrust Counsel (2)
OGC Files (2)
OGC Formal Files (2)
Solicitor, GC e
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?,/72 l'NITED STATES OF AMERICA ATC:iIC E.ERGY CO:r!ISS10::
In the Matter of
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et 3042T,, 330A CONSINEitS POWER COMPANY
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(Midland Plant, Units 1 and 2)
CERTIFICATE OF SER\\' ICE I hereby certify that copies of an ORDER RULING 0:I APPLICA:TT 'S 03 JECTIONS TO DOCUMENT REQUESTS, TIIE DEPARTMENT OT Jt'STICE 'S
OT TON TO COMPET. c.1E PRODUCTION OF FOUR CATEGORIES OF PDCI!ENTS, AND APPLICA:.T'S :TrIn:I m!t PROTECTIi'E ORDERS dated November 28, 1972, in the captioned i.atter have been servcd on the following by deposit in the United States mil, firat class or air mail, this 28th day of November 1972:
Jerome Garfinkel, Esq., Chairman James F.
Fairman, Jr., Esq.
Atomic Safety and Licensing 130ard James Carl Pallock, Esq.
U. S. Atomic Et.ergy Car =iss ion 3 9,).lir" inia Avenue, N. W.
Wa s h ington, D. C.
20545 Washintton, P.
C 20037 Huch K. Clark, Esq.
Mr. A5rahan Brairman, Chief P. n.
Box 127A Office f Antitrust and ce n ned yv il l e, Maryland 21645 Indemnity Directorate of Licensing Wallace E. 1 rand, Esq, U.
S. Atomic Energy Connission
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S. Department of Justice Waahington, D. C.
203',5 P. O.
i3ox 7513 Washington, D.
C.
20044 Harold P. Graves, Fsq.
.' ice President and Ceneral Counsel ravid A. Leckie, Eso,
- " * "" # 8 "P'"F Public Counsel Sect ion "I E"" ^ " "
Antitrust Division Jackson, Michigan
'M201 Department of Justice Washington, D. C.
20530 i!anarable Frank Fellv
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UE" 'I C r. J. \\'. Leeds, Jr.
Michigan P. O. Box 941 L m ing, Mkhinan 4 F413 Houston, Texas 77001 seph J. Saunders, Esq., Chiof Joseph Rutberg, Esq.
len j amin 11. \\' ogle r, Esq.
$ ""3"I 3"d
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Antitrust Counsel
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Office of the General Counsel "P"# ""
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'?. S. Atomic Ener;:/ Co : mission Wa s h in t;t an, ". C.
- 0570 Washincton, D. C.
2 ? 3 '. 5 "IU1" William Warfield Ross, Esq.
Antit nst "ivision i'cith S. Watsen, Esq.
Tani K. Jalden, Esq.
{. n. M 7313 Wald, Harkrader, Nacholson 5 Ross 1320 19th Street, N.W.
Washington, D. C.
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Of ficc of the Secretare t* the CoEirsion ec:
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