ML19329F032
| ML19329F032 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/28/1973 |
| From: | Hatfield C, Leckie D JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19329F033 | List: |
| References | |
| NUDOCS 8006190827 | |
| Download: ML19329F032 (10) | |
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UNITED STATES OF AMERICA
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BEFORE THE ATOMIC ENERGY COMMISSION
-In.the Matter of
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CONSUNERS POWER COMPANY Docket Nos. 50-329A (Midland Plant, Units 1 and 2) 50-330A ANSWER OF THE DEPARTMENT OF JUSTICE TO APPLICANT 'S MOTION FOR LEAVE TO SUBMIT OUTSIDE EXPERTS '
DIRECT TESTIMONY IN WRITTEN FORM Pursuant to Section 2.730(c) of the Commission's Rules of Practice,10 C.F.R. Part 2, the Department of Justice answers and opposes Applicant Consumers Power Company's motion of June 19, 1973, for an order " authorizing" submission of direct expert testimony prepared by outside consultants in written form.*/
Applica.c's motion is nothing more than an attempt to c
reargue one more time a decision (1) made by the Board at l
l the first prehearing conference in this proceeding (July 12, 1972),
(2) reiterated at the second prehearing conference (October 25,1972), and (3) reaffirmed after further argu-ment at the third prehearing conference (February 12, 1973).
Chairman Garfinkel expressed quite clearly the Board's ruling on the question of live versus prepared expert testi-mony at the first prehearing conference:
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We note that, despite styling its motion as one "for Teave" to submit written testimony and using the_ word
" authorizing" in stating the motion initially (page 1), Appli-cant would ~ in fact have the Board compel all parties to submit such direct expert testimony in writing (pages 8-9).
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CHAIRNMN GARFINKEL:
Again, counsel for all parties, as the Board sees it', it looks like the question of credibility of witnesses may come up, and also because the issues are complex, this Board is not going to accept written testimony in lieu of oral testimony.
This Board will want the witnesses to be present, to be subject to cross examination, and also to examination by the Board.
NR. ROSS:
Point of clarification, Mr. Chairman.
Are you by that ruling precluding our preparing and circulating testimony in advance?
CHAIRMAN GARFINKEL:
You can do anything you want, but we will not accept it unless there is a stipulation that the testimony is valid testimony and it will not be subject to cross examination.
If there is.any testimony that is going to be subject to cross examination we want that party to be there personally for direct examination.
MR. ROSS:
In other words, you want the direct put in live?
CHAIRMAN GARFIHKEL:
Live.unless there is a stipulation that this testimony is the testimony everybody agreed to.
(Transcript, pp. 80-81)
The question arose again at the second prehearing con-ference, when Mr. Brand suggested that a change in the Commission's Rules of Practice [Section 2.743(b)] might affect the Board's earlier ruling.
Chairman Garfinkel emphasized that such was not the case:
CHAIRMAN GARFINKEL:
No, forget about that.
I made a ruling in this case that we will take oral testimony and that ruling stands.
MR. BRAND:
I see, your Honor.
That elimi-nates our problem.
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CHAIREMN GARFINKEL:
Right.
I was worried about your question of canned testimony.
That is out.
The question of credibility of witnesses--
as I recall the Board 's ruling, the credibility of witnesses in this case is very important and it is not the same situation as you would find in a licensing case.
I am not applying the restruc-tured rules, canned-testimony rules, in this case.
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4 Moreover, Mr. Brand, this proceeding, I believe, preceded the promulgation of the restruc-tured rules, in which case I am not, the Board is not bound by the restructured rules in this matter.
(Transcript, p. 156) i In.responsh to a question from Mr. Fairman, Chairman Garfinkel elaborated further on.the matter:
CHAIRMAN GARFINKEL:
.. I think the Board
. ruled in the: prior prehearing conference if the
. entire testimony.is stipulated, then we don 't have any objections to having it in, because that is a stipulation.
But I don t want just the direct testimony stipulated and ti.en have the other party cross-examine.
If that is going to happen, I want the direct testimony to be given orally and I want the cross-examination orally.
(Transcript, p. 163)
Notwithstanding the Board's prior ruling, and the reitere-j tion and explanation thereof, Mr. Ross saw fit to raise this question once again at the third prehearing conference, and i
the following discussion transpired:
MR. ROSS:
Can I bring up one other wrinkle at this time?
CHAIRMAN GARFINKEL:
Sure.
MR. ROSS:
We. don't know what the Department of Justice or intervenors are going to put on, but
-we have some general idea, and we do contemplate putting on testimony, as I have already said, on the record, of both company witnesses and of experts, outside experts, who will be economists.
The Board has ruled that it wants the direct testimony on live,' and we, of course, acquiesce in that, and we would intend to put the company wit-
.nesses on live in complian'ce with that ruling.
i I just want to raise, ' just for the Board 's consideration, as to whether it would not be more expeditious and a better -procedure if we could 1
have the experts direct--I am talking about all parties' experts--put on in prepared form and the 3
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witness called for cross-examination, since expert testimony lends itself very readily to this and since there is no real question of credibility with,
regard.to an expert who has no personal knowledge of the matters-here, and to the extent that his testimony needs to be tested, it can be tested on a
- cross-examination.
. CHAIRMAN GARFINKEL:
How do you feel about that, Mr. Brand?
MR. BRAND:
Your Honor, we can live with a'ny set of ground rules, but we don't care to have the ground rules changed.
We thought this was going 3
to be all live.
. CHAIRMAN GARFINKEL:
I just wanted to get your feeling.
I think in an antitrust case, es.pecially
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a case of first impression, the credibility of experts may be in issue in an antitrust case, Mr. Ross, and in my experience with the Federal Trade Commission, we have had a number of experts who were severely cross-examined and they didn't come out for the better.
MR. ROSS:
I wasn't contemplating doing away with the cross-examination, Mr. Chairman.
CHAIRNAN GARFINKEL:
But that is not the same as listening to live--and the Board, unlike in other cases, the-Board itself has the right to ask questions and is also getting an impression of how lus answers the questions.
I think the question of credibility is-so important that the Board should be able to vieu him live all of the way.
On that basis, we would'like it live, we will stay with that order.
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MR. ROSS:
. And one more clarification, Mr. Chairman, I hate to take the Board 's. time, but we have.to be clear on this, because there is a
-tremendous. effort involved. in this.
L Live:t'estimony can.mean two things, it.can mean that the witness has to testify without l
reference to prepared testimony, and the numbers l
and :the details in that.
It also can mean that the witness must be asked the question and he must testify orally, but he can make reference to his notes.and to his prepared materials.
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If it were the former, the extent of prepara-tion of a witness would have to be quite different.
He would, in effect, have to memorize a lot of things.
My query specifically is suppose Mr. Brand and I' decide to exchange prepared direct, which you have said we could do, if we chose to do so.
CHAIRMAN GARFINKEL:
You can do anything between the parties.
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'MR. ROSS:
Would it be permissible, if we put on a witness and I ask him a question and he would, in effect, be reading the answer which he has previously prepared?
- CHAIREMN GARFINKEL:
The question first, in order for us to make a ruling, I would have to know whether Mr. Brand would raise an objection to that type of approach.
FR. BRAND:
I would, your Honor, if we are going to have live testimony, we ought to do it 1
live.
However, I would h:ve no objection to any witness examining, for Lxample,. tables or statistics i
or reference books, anything of that sort, on the i
stand, that he needs on which to base a responsible answer.
But the idea of a witness, if we arc going to 4
have a live testimony proceeding, simply reading from an already prepared answer, that would be objectionable, in my view.
CHAIRMAN GARFINKEL:
There is your answer, Mr. Ross.
MR. ROSS:
You realize, of course, that there will be, we will have rather extensive statistical exhibits and he couldn't function if he couldn't refer to those.
MR. BRAND:
I have no objection whatsoever to his referring to statistical exhibits and I would propose that our witnesses be afforded the same advantage.
They probably will have great notebooks of statistical materials that they may have to refer-to.
MR. ROSS:
We have no' difficulty with this,
- we are prepared to do it, I just wanted to know 5
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beforehand, before we got in there and hadn't preaared the witnesses adequately for the memory work that is required, whether this would be c requirement.
MR. BRAND:
There is one additional item to which I would like to refer--
CHAIRMAN GARFINKEL:
I wanted to ask how the intervenor feels about this?
MR. JABLON:
I agree totally with Mr.'Ross,
.I think the testimony should be written.
CHAIRMAN GARFINKEL:
Very well.
We have ruled against that.
(Transcript, pp. 350-352, 353-355)
The record is plain that the Board has decided to require live direct testimony in this proceeding.
The Department agrees with the Board's ruling for the reasons stated by Chairman Garfinkel and Mr. Brand at the February 12, 1973, prehearing conference, as quoted above, and believes no further reconsideration of that ruling is called for.
The role of the experts in this proceeding will be to explain effectively to the Board the economics of the electric power industry and the antitrust principles to that industry.
In some cases an explanation of the results and significance of technical and statistical exhibits may be required.
The exhibits may be complex; the experts ' explanations thereof need not and should not be complex.
We are confident that the. Department's expert witnesses will be able to present their testimony live ',n a coherent and intelligible fashion 6
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without requiring an inordinate amount of time to do so and would hope - Applicant's experts are qualified to do the same.*/
We maintain that taking the depositions of outside-
. consultant expert witnesses to prepare for their cross-examination is entirely practicable.
It would be proper and necessary and not at all a waste of time even 4 f " canned"'
testimony were to be permitted, because statistical tables and other such formulations frequently require explanation.
We anticipate and have heretoforeoffered our expert witnesses for such depositions by the Applicant on reasonable terms and conditions.**/
We see no difficulty in scheduling such depositions during the eight-week period between the proposed July 30, 1973, exhibit-exchange date and the September 24, 1973, hearing date. ***/
Further, we are agreeable to exchang-ing summaries of our experts ' proposed testimony, on July 30, along with the exhibits they will sponsor and the underlying working papers.
We oppose Applicant's suggestion that, in lieu of deposing the Department 's experts prior to hearing,
- / - And, of course, no one suggests that the experts may not refer to their exhibits, working papers, tables, notebooks of statistical materials or reference books in presenting their testimony.
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Reasonable terms cand conditions" would include the ability to take similar depositions of Applicant's outside expert wit-nesses and of its officers and employees who possess qualifica-tions as experts in engineering or economics and intend to present testimony of a technical or conclusory nature in this proceeding.
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We did not intend the proposed August. 30,1973, discovery-l cutoff date co -limit the taking of depositions of this type.
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.In any event, the parties could take such depositions by agree-ment even after an. established date for the close of discovery.
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e the. hearing be recessed after their testimony so as to permit Applicant then to formulate cross-examination.
Applicant will have ample opportunity to prepare its cross-examination in the eight weeks before the hearing.
CONCLUSION For the reasons stated above, the Department of Justice urges that' Applicant's motion be denied.
Should the Board nevertheless decide now to authorize the parties to submit
" canned" direct testimony, we ask that it do so in the true sense of the word " authorize"--and not require the Depart-ment present its direct expert testimony in such fashion.
Respectfully submitted, f-A
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ITAIid A. LECKIE (T
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C. KENT HATFIELD
'WALLACE E. BRAND j
l Attorneys, Antitrust Divisien Department of Justice Washington, D. C.
June 28, 1973 i
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UNITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION In the Matter of
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CONSUMERS ~ POWER COMPANY Docket Nos. 50-329A (Midland Plant, Units 1 and 2)
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50-330A CERTIFICATE OF SERVICE I hereby certify that copies of ANSWER OF THE DEPARTMENT OF JUSTICE TO APPLICANT S MOTION FOR LEAVE TO SUBMIT OUTSIDE EXPERTS '
DIRECT TESTIMONY IN WRITTEN FORM and NOTICE OF APPEARANCE for C. Kent Hatfield, dated June 28, 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 28th day of June,1973:
Honorable Jerome - Garfinkel Atomic Safety and Licensing Chairman, Atomic Safety and Board Panel Licensing Board U. S. Atomic Energy Commission U. S. Atomic Energy Co=ar'.ssion Washingcon, D. C.
20545 Washington, D. C.
20545 Chairman, Atomic Safety and Honorable Hugh R. Clark Licensing Appeals Board Atomic Safety and Licensing U. S. Atomic Energy Commission Board Washington, D. C.
20545 Post Office Box 127A Kennedyville, Maryland 21645 Mr. Abraham Braitman, Chief Office of Antitrus t and Indemnity Honorable J. Venn Leeds, Jr.
U. S. Atomic Energy Commission Atomic Safety and Licensing Washington, D. C.
20545 Board Post Office Box 941 Harold P. Graves, Esquire Houston, Texas 77001 Vice President and General Counsel Consumers Power Company William Warfield Ross, Esquire 212 West Michigan Avenue Keith S. Watson, Esquire Jackson, Michigan 49201 Wald, Harkrader & Ross 1320 Nineteenth Street, N.W.
Joseph Rutberg, Esquire Vsshington,.D. C.
20036 Benjamin H. Vogler, Esquire Antitrust Counsel for AEC Regulatory Honorable Frank Kelly Staff Attorney' General U. S. Atomic Energy Commission State of Michigan Washington, D. C.
20545 Lansing, Michigan 48913
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Mr. Frank W. Karas, Chief Robert A. Jablon, Esquire Public Proceedings Branch 2600 Virginia Avenue, N.W.
Office of the Secretary of Washington, D. C.
20037 the Comission U. S. Atomic Energy Comission Washington, D. C.
20545
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C. KENT HATFIELD Attorney, Antitrust Division Department of Justice Washington, D. C.
20530 8
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