ML19331A132
| ML19331A132 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 08/10/1973 |
| From: | Bannan C, Brand W, Leckie D JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006110538 | |
| Download: ML19331A132 (7) | |
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UNITED STAT'ES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION In the Matter of
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CONSUMERS POWER COMPANY Docket Nos.
-329' (Midland Plant, Units 1 and 2)
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50-0A MOTION TO THE BOARD FOR AN ORDER REQUIRING APPLICART TO STATE THE FACTS EXPECTED TO BE PROVED BY ITS OUTSTANDING DISCOVERY REOUESTS TO NONPARTIES Pursuant to Section 2.730 of the Commission's Rules of Practice,10 C.F.R. Part 2, the Department of Justice moves the Board for an order requiring Applicant to state with particularity the facts which it expects to prove by its outstanding discovery reques ts to nonparties.
Applicant is presently embarking on a second round of discovery against several nonparty systems and has indiccted that depositions will not be taken until the satis factory completion of document production.
The Department does not contest the right of Applicant to this discovery.
We are, however, seriously concerned with the delay in the hearing which will apparently be occasioned by awaiting the completion of this second round discovery.
While it is presently impos-sible to forecast the magnitude of this delay, from the i
discussion during the August 3,1973, conference call, there appears to be a substantial proba'cility that the hearing will be delayed for a lengthy, ariod.*/
At this point, it is
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Applicant concedes that its new discovery is of the same character and magnitude as discovery by Applicant that required a three month period for response earlier in the proceeding.
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entirely conceivable the hearing postponement may run up to a year or longer.
While the Department agrees that full and adequate discovery for all parties is essential for a fair hearing, we would like to point out that this case was noticed for hearing' April 11, 1972; and we believe every effort should be made to expedite this matter to hearing.
The necessity of a prompt decision in this proceeding in not only for the relief of small systems in Michigan who are in dire need to make decisions on generation and transmission in the near term; its concurrent value to furnish guidelines for other pending cases, cannot be overemphasized.
The Department is of the view that Judge Clark's suggestion during the August 3,1973, conference call of a stipulation process merits more serious consideration then was given to it by Applicant during the conference call.
Were the parties able to remove from issue, via stipulation some or all of the facts which Applicant seeks l
to prove through this discovery of the nonparties, this second round discovery could be substantially reduced in time span, if not eliminated entirely.
Contrary to representa-tions by Applicant's counsel during the above conference call, stipulating is not a novel suggestion by the Department.
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For example, Mr. Brand, during.the prehearing conference of February 12, 1973, indicated on several occasions the Depart-ment's willingness to stipulate in order that the time required for both discovery and hearing could be reduced.*/
Much of Applicant's discovery appears to be directed toward the issue of whether the few remaining municipal electric power systems in Michigan's icwer peninsula are making a profit at the present time.
The Department would not contest that and on any reasonable showing is prepared to stipulate to it, which would save not only time for discovery but also time for elaborate presentations of these facts by direct testimony.
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During the February 12, 1973, Prehearing Conference, Mr. Brand stated:
The Department is not taking the position that counsel for Consumers has in other cases; that is to say, you tell us what you want stipulated, write it down, and we will consider it.
We are willing to sit down and work out a stipulation as to whether or not the end conclusion is true, the end conclu-sion being:
is the municipal selling power at rates above or below Consumers power, and are they making a profit?
(TR p. 203)
The Department is anxious to expedite the pro-cceding, we want to make licensing work.
We have done this (drawn up Request for Admissions and Interrogatories as to Proposed Contentions) in an effort to do so.
We are prepared to sit down and discuss a stipulation as to the end conclusions as to whether or not the municipals are making a profit and whether a particular category of rates are above i
and below.
We think the easiest t.ay to do this is to base on the studies already carried out by Consumers, apparently they make them continuously.
And we are prepared to do that.
(TR p. 205) i 3
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Therefore, in an effort to lessen the time necessary for completion of Applicant's second round discovery and to expedite this case to hearing, the' Department proposes the iollowing:
If Applicant, pursuant to an order of the Board will specify with particularity the facts which it expects to prove by its outstanding discovery requests, the Depart-ment will, if we are able, stipulate as to the truth of one or all of these facts, and/or agree, based on evidence pre-sently available to the Department, not to contest one or all of Applicant's statement of the facts.
This response by the Department will be made within five working days from receipt of Applicant's statement.
The procedure of requiring the party requesting discovery to specify the facts expected to be proved thereby is not cn extraordinary procedure.
Rule 56 of the Interstate Commerce Commission's Rules of Practice, 49 C.F.R. Part 1100,*/
requires, as a matter of course, that a party seeking docu-ment production by subpoena state with particularity the facts sought to be established by the requested documentary production.
And since presumably Applicant's second round discovery is not a fishing expedition, logically it knew before submission of the discovery requests the facts which it was
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S1100.56 Subpcenas (Rule 56); (a) Reauests: Particularity.
Unless directed by the Commission upon its own motion, a subpoena to compel a witness to produce documentary evidence will be issued only upon petition showing general relevance and reasonable scope of the evidence sought, which petition must also specify with particularity the books, papers, or documents desired and the facts expected to be proved thereby.
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h hoped would be established thereby.
Hence, particularization of these facts will not burden Applicant.
CONCLUSION For the reasons stated above, to wit, adoption of this' procedure may substantially lessen the time required for completion of Applicant second round discovery and expedite this matter to hearing; this procedure has been accepted as reasonable and practical by other regulatory agencies; and Applicant presumably has in some form such a listing of the facts sought to be established by its request, the Depart-ment respectfully requests that the Board order Applicant to specify with particularity the facts its expects to prove by its newly filed discovery.
Respectfully submitted,
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C. FORREST BANNAN WALLACE E. BRAND DAVID A. LECKIE Attorneys, Antitrust Division Department of Justice Washington, D. C.
Augus t 10, 1973
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l UNITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION In the Matter of
)
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329A Midland Plant, Units 1 and 2
)
50-330A CERTIFICATE OF SERVICE I hereby certify that copies of McIION TO THE BOARD FOR AN ORDER REQUIRING APPLICANT TO STATE THE FACTS EXPECTED TO BE PROVED BY ITS OUTSTANDING DISCOVERY REQUESTS TO NONPARTIES, dated August 10, 1973, in the above-captioned matter have been served on the follow-ing by deposit in the United States mail, first class or air mail, this 10th day of Augus t, 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 Commission Washington, D. C.
20545 Washington, D. C.
20545 Chairman, Atomic Safety and Honorable Hugh R. Clark Licensing Appeals Board Atomic Safety and Licensing Board U. S. Atomic Energy Commission Post Office Box 127A Washington, D. C.
20545 Kennedyville, Maryland 21645 Mr. Abraham Braitman, Chief Honorable J. Venn Leeds, Jr.
Office of Antitrust and Indemnity Atomic Safety and Licensing Board U. S. Atomic Energy Commission Post Office Box 941 Washington, D. C.
20545 Houston, Texas 77001 Harold P. Graves, Esquire William Warfield Ross, Esquire Vice President and General Counsel Keith S. Watson, Esquire 212 West Michigan Avenue Wald, Harkrader & Ross Jackson, Michigan 49201 1320 Nineteenth Street, N.W.
Washington, D. C.
20036 Joseph Rutberg, Esquire Benjamin H. Vogler, Esquire Honorable Frank Kelly Antitrust Counsel for AEC Attorney General Regulatory Staff State of Michigan U. S. Atomic Energy Commission Lansing, Michigan 48913 Washington, D. C.
20545 Robert A.'Jablon, Esquire 2600 Virginia Avenue, N.W.
Washington, D. C.
20037 I
Mr. Frank W. Karas, Chief Public Proceedings Branch Office of the Secretary of the Comission U. S. Atomic Energy Comission Washington, D. C..
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C. FORREST BAdNAN Attorney, Antitrust Division Department of Justice Washington, D. C.
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