ML19329F041

Motion for Order Modifying Procedural Schedule.Requests That ASLB-directed Documentary Production Be Completed by 730501

ML19329F041
Person / Time
Site:	Midland
Issue date:	12/22/1972
From:	Golden T, Ross W, Watson K CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), WALD, HARKRADER & ROSS
To:	US ATOMIC ENERGY COMMISSION (AEC)
Shared Package
ML19329F042	List: ML19329F041 ML19329F049
References
NUDOCS 8006190835
Download: ML19329F041 (10)

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

) Docket and Q 29A )

Nos.50-Ja0A CONSUMERS POWER COMPANY )

(Midland Unite 1 and 2) 4

)

' MOTION FOR ORDER MODIFYING PROCEDURAL SCHEDULE To: The Atomic Safety and Licensing Board Pursu.7t to Section 2.711(a) of the Commission's Rules of Practice, 10 C.F.R., Part 2, Consumers Power Company

(" Applicant") hereby moves the Board for an order establishing a modified schedule for completion of documentary production pursuant to the various document requests heretofore served upon the Applicant.

Applicant makes this Motion reluctantly, knoving the Board's desire to maintain the schedule which has previously been established. However, taking account of the very sub-stantial effort to date and the t asks which remain, Applicant has concluded, in light of experience thus far, that it will not be possible to respond to the outstanding demands within the allotted time. Accordingly, it is compelled to seek modification of the Board's prior directives.

Briefly, if the full file search is to be pursued, Applicant has concluded that production cannot possibly be completed any earlier than May 1, 1973, thus requiring a signifi-l 8006190 83.s- e s 'z7  ;

cant realignment of all scheduling dates. However, if the Board issues an order excluding the Applicant's field offices from the file search -- a step which, we believe, is justi-fied -- a much more limited change. in the schedule would be 1/

necessary.

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Specifically, Applicant in those circumstances could complete documentary production by February 16, 1973, six weeks later than presently contemplated.

The prcblem with which Applicant has been grappling, and which it must now bring to the Board, arises from two principal factors. First, the documentary requests are very broad and sweeping in nature and require a search of almost all the company's files. Second, in order to comply with these requests in a thorough and careful manner, Applicant must employ careful search techniques. These techniques, while they require a major commitment of company resources, require some limitation on the size of the search and review force. Otherwis e , uniformity and control of judgment will Le lost. Hence, there are some absolute limits on the speed with which the task can be completed, and the time consumed

'l/ Applicant has discussed elimination of the field office file' search v ;h counsel for the Joint Discoverers. They have taken the position that they are unwilling to con-sent to such elimination at this time. When Applicant has produced all documente called for from its central office files, counsel for Joint Discoverers have advised that they may be prepared to discuss some modification of the field search.

is not wholly within the Applicant's control. To ignore these limits would either deprive the discovering party of the thorough compliance to which it is entitled, or the complying party of procedural due process.

We turn now to a discussion of the effort to date e and the tasks remaining. Factual statements in this discus-sion are supported by af fidavit submitted herewith,

l. The File Search to Date The search was initiated, following opposing parties' document requests of-July 26, August 16, September 21, and September 25, 1972. All but the last of these requests made multiple demands for all documents " relating" or " referring" to numerous broad subject categories, and, therefore, required a review of a substantial portion of all file drawers located in the Company.

I As each of these aforementioned document requests was received, counsel reviewed them with appropriate Company employees to discuss problems of comprehension, interpretation and t>e like. These and other difficulties ~were, in turn, presented to opposing counsel at meetings of September 9 and 18, and October 5, 1972. Issues which could not be resolved  ;

were presented to the Board in Applicant's Motion of October 26; tr e Board's order in response to this Motion was issued November 28, 1972.,

Throughout this period, the file search moved forward, focusing initially upon the asterisked requests which, it will be recalled, opposing' counsel sought first, and which l

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raised relatively few legal or interpretive difficulties.

As a result, on October 16, November 20, December 1 and December 7, 1972, Applicant produced 2,724 pages of documents for in-spection and in so doing substantially completed responses to each of the asterisked items and several other items as well. -

The file search with regard to the remaining requests also progressed during this period. Two Company attorneys were assigned to the search on a full-time basis while another senior attorney and other non-legal personnel also contributed significantly in time and effort. By late October, review of the files of Marketing and Rate Departments, as well as personal files of the vice-presidents in charge of these Departments had been completed. Most of the files containing documents responsive to the asterisked items had also been reviewed by that time . Based on experience to that date, Applicant estimated that the search could be completed by.

the first of the year. --2/

Since that time, the search has pr' oven more time-consuming than originally anticipated. The relative ease with which the searchers were able to extract the asterisked documents resulted in a substantial underestimation of the 2/ Applicant so advised the Board at the Prehearing Confer-ence on October 26, 1972 (Tr. 118).

J time required to search the rcmaining central office files, as well as the field offices. .The actual dimensions of the remaining files, as well as the time required for reading, indexi g and review of already extracted documents proved -

substantially greater than had been anticipated. To this point, approximately 39,000 document pages have been extracted and transported to Washington counsel for review, an effort whicP rap.:esents approximately two-thirds of the central office search.

To deal with this situation, another Company attorney was committed to work full-time on the project on December 4, 1972, and all three attorneys were ordered to work overtime.

- One week later, three non-legal employees were assigned to assist these attorneys on a full time basis. To date the search has consumed approximately 1,760 legal manhours and 1,400 non-leg i manhours and has resulted in the review of the following offices: All offices except Chairman of the Board and the President; Marketing Department; Executive Manager Electric Planning; Power Resources and System Planning Department (substantially . complete) ; Director Power Resources and System Planning; Senior Supervisory Engineer, Interconnection Planning; Interconnection Coordinator; Rate Research Department; Data Control Department.(partial); Rates Department; Executive Director of Rates, Research and Data Control; Data Control Supervisor (partial); Legal Department; and the Electric Engineering Department (partial).-

Despite such efforts, the filei of the following headquarters offices remain to be searcheo Chairman of the Board and President; Executive Committee; Director of Division Administration; Executive Assistant to Vice President in charge of Divisions; Manager of Marketing; General Supervisor of Ccm-mercial Electric and Governmental Services; General Govern-mental Services Engineer; Area Development Department; Director of Area Development; Executive' Manager of Electric Transmission and Distribution; Principal Engineer, Power Facilities Planning; Bulk Power Production Department; Manager of Bulk Power Pro-duction; System Operations Superintendent; Project Manager, Karn Units 3 and 4; Project Manager, Ludington; Project Manager, Midland; Project Manager, Palisades; Manager of Electric Engineering; Electric Transmission and Distribution Department; Manager of Electric Transmission and Distribution; Electric Transmission and. Distribution Coordinator; Assistant Controller; Assistant Secretaries (2); Assistant Treasurers (3); Director of Government Affairs; Director of Civic Affairs; Director of Economic and Financial Planning; Personal Attorney files; Director, Public Information. Applicant estimates that another 1,500 manhours will be required to complete this effort.

Adding additional personnel to the file search at this juncture would destroy the relative uniformity of control and judgment that has heretofore been maintained, and would

jeopardize Applicant's ability to acnure the Board that the search had properly been undertaken and completed. Thus, although significant interim production has been and will be forthcoming, it appears unlikely that the headquarters file search can be completed prior to February 16, 1973.

2. The Field Office File Search It is obviously not possible to state with certainty the time and resources necessary to complete a field office file search. However, it should be noted that the Company has twelve electric service division headquarters and 26 local district offices located throughout the lower 1ininsula of Michigan -- offices which are as far as 250 miles from Jackson.

These offices employ more than 1,100 executive, professional and admir.istrative employees who have electric service respon-sibilities. By contrast, the Jackson headquarters has only about 1,000 such employees (or less than one-half of the total of such employees). We are advised that the files located in a division headquarters are approximate 1y comparable in bulk to those in a major Department in the central office headquarters.

The fact that few documents of interest would likely be uncovered by a search of the field office files would

.not shorten the time since it is the search itself, not the extraction process , which consumes most of the time.

9 In addition to the time required for the actual search of-field office files, the process would be further lengthened by the need of trained headquarters personnel to supervise and coordinate the search with field office offi-cials and the need to transport documents to Company head-quarters for processing and review. All in all, the process will require the entire time at least until May 1, 1973. While Applicant will undertake this effort if the Board so requires, it is respectfully suggested that a completely adequate response to this document request could be provided by confining the search to company headquarters. In that event, Applicant can complete the task by February 16, 1973.

3. Documents Likely to be Found at Field Offices Applicant is, of course, generally aware of the type of documents contained in its field office files, but absent a thorough file search, it is not possible to state categorically what documents are, or are not, located therein. However, given the nature of the issues raised in this proceeding, Applicant believes that such a search would primarily' produce duplicative or cumulative documents, and is not required to develop an ade-3/

quate record in this case.

The issues of this proceeding, as set forth in the Board's prehearing conference order of August 7, 1972, concern i

It should be noted that the central office search has already

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included the files of the vice-president for divisions to whom each of the district headquarters directly reports and through whom.

Company policy is communicated to these field offices.

the Applicant's alleged power and refusal to deal with regard to coordination with smaller neighboring electric systems.

Applicant's policies concerning coordination are formulated, initiated, and overseen by officers and other Company officials, all of whom are located in the Jackson headquarters. Thus, for example, negotiations with other utilities are conducted and e policy determinations concerning such subjects as wholesale power, interconnections,. pooling, reserve sharing, or wheeling are made and supervised by headquarters personnel.

In view of the foregoing, the great bulk of dccuments located in field offices which could be deemed germane would be either copies , or at most cumulative, of material located in the' Jackson headquarters. Applicant submits that the production of such material is not essential to the elucidation of the issues raised herein.

Conclusion All of the considerations discussed herein have led Applicant to seek an order from the Board. -If the entire Company files are to be searched, Applicant respectfully re-quests that the Board direct the documentary production be

- completed by May 1, 1973. This will, of course, require modification of the other procedural dates previously estab-lished by the Board. Obviously, the views of the other parties

! should be considered in establishing these dates. Hence, Applicant makes no suggestion concerning them herein.

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-Alternatively, if the Board wishes to confine the file search to headquarters files, Applicant respectfully re-quests that the Board so order and, in addition, direct that Applicant complete documentary production required by the aforementioned requests by February 16, 1973. Again, this will require some modification of the other procedural dates already established, albeit more modest changes than under the first alternative. Applicant will await the suggestion

.of other parties in this regard.

Respectfully submitted, n

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Wm. Warfield/Ross it bd Kei'th S. Watson r Y L/Jed Toni K. Golden WALD, HARKRADER & ROSS 1320 Nineteenth Street, N. W.

Washington, D. C. 20036 Of Counsel:

Harold P. Graves, Esq.

Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201 December 22, 1972

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