ML19331A184

Util Response to Intervenors' 730827 Motion to Limit Discovery & Issues & for Summary Findings.Motion Should Be Denied or Response Date to Motion Should Be Extended to Due Date of Pretrial Brief.Certificate of Svc Encl

ML19331A184
Person / Time
Site:	Midland
Issue date:	09/06/1973
From:	Ross W, Watson K CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), WALD, HARKRADER & ROSS
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8006120738
Download: ML19331A184 (7)

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UNITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION q.6-75 In the Matter of )

) Docket Nos . (50-3293)

CONSUMERS POWER COMPANY ) 50-330A (Midland Plant, Units 1 and 2) )

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Applicant's Response To Motion To Limit Discovery And Issues And For Summary Findings Pursuant to Sections 2.730 (c) and 2.711(a) of the Commission's Rules of Practice, Applicant responds to the

" Motion To Limit Discovery and Issues . . . and/or Summary Findings" filed by the Intericnors on Auguat ,27, 1973.

A. Motion to Limit Discovery Reargues Issues Raised by Intervenors ' Motion of August 16, 1973 and Should Be Denied.

On August 16, 1973, the Intervenors filed a Motion "For an Order Requiring Applicant To State the Facts Expected to Be Proved by Its Outstanding Discovery Requests" . The Motica was founded upon the Intervenors ' claim that the

" issues raised by Applicant . . . do not constitute a defense and are extremely burdensome to try" (p. 2) . The Intervenors' instant Motion, in essence, simply reargues these contentions concerning the burden and relevance of Applicant's discovery.

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With regard to burden, Applicant's " Response" of August 16, 1973, makes clear that Applicant is not responsible for the delay or the expansive scope of these proceedings and has made every effort to narrow the scope and expedite the hearing of the issues raised herein. We incorporate the aforementioned Response by reference as fully responsive to the Intervenors' claims that the delay for which they are responsible justifies their ignoring the Appeals Board's order to comply with Applicant's discovery.

The Motion To Limit Discovery also advances the time-worn claim that Applicant's di,scovery about " profitability" and " costs and revenues" of the municipal-cooperative systems "have no bearing on this case" (p. 6) and are " unnecessary" (p. 11). The municipals have litigated and relitigated this issue in this proceeding and their arguments have been rejected by I both this Board and the Appeals Board. In this regard, the

. Appe.als Board held:

". . [W]hile the discovery allowed by the Licensing Board is obviously quite broad, so too is the scope of issues which may possibly have to be resolved by that Board. In its June 28, 1971 letter recommending j an antitrust hearing, the Department of Justice as-

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serted that the applicant might be using its market power to deny to competitors ' participation in '

coordinated bulk power supply to the extent neces-sary to maintain" their long-term competitive via-bility' . . . .

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"It is idle, we think, to suggest that the information which the applicant seeks is not possibly relevant and material to the far-ranging issues em-braced by the Department of Justice's theory of the case . . . .

"Further, we are disinclined to accept the appellants' (the municipals'] invitation to decide ourselves -- at this preliminary stage of the case and for no purpose other than to settle a discovery controversy -- whether the scope of the Inquiry to be made by the Board below is significantly more limited than the Department of Justice (and pre-sumably the intervenor electric systems) would have it.

"Similarly, we see no necessity for us now to pass upon the appellants ' [the municipals'] claim that the information sought by the discovery would not assist the applicant's preparation of any valid defense which it might have to the charges made against it by the Department of Justice. Particularly in as complex a case as an antitrust proceeding, it would be clearly inapprocriate to pronounce judgment -- prior even to the completion of discovery -- on what may or may not consti-tute valid defenses.

"In short, all we need con 5ider at this juncture is whether the information sought bears a reasonable relation to defenses the applicant may wish to assert to claims which are being made by one or more of the parties and as to which, if only provisionally, the Licensing Board is permitting the receipt of evidence.

As indicated in ALAB-118, we are satisfied that an affirmative answer is required." Decision ( ALAB-12 2) ,

May 16, 1973, pp. 13-15 (footnote omitted) [ Emphasis supplied.] -

Thus, the Appeals Board has, long ago, laid to rest the Intervenors ' contentions that Applicant's discovery has "no bearing" upon this proceeding. We submit that this Board should reject the Intervenors' efforts to relitigate those issues and thus to delay compliance with discovery the Appeals Board has held to be "relevand' to this proceeding.

. .' s II. Intervenors' Motion For Summary Judgment Should Be Denied.

In the alternative, the Intervenors move for

" summary findings" or judgment contrary to Applicant's interest in this proceeding. The Intervenors argue in their Motion that they "are threatened with -long, drawn-out pro-ceedings to relitigate . . . the substance" of the Otter Tail and Gulf States cases (p. 22). Applicant, of course, disagrees with this position and is prepared to demonstrate that the aforementioned cases have little direct bearing upon the instant proceeding -- except possibly in support of Applicant's

position.

However, the Motion is defective under summary judgments principles and should be denied at this time. The Appeals Board has recognized that Applicant's defense in this proceeding rests, in part, upon factual showings for which discovery of the munic.ipal and cooperative systems is required.

Since there exist exter31ve disputed issues of fact underlying j the movants complex mixed legal and factual allegations, se . mary findings cannot be made and partial summary judgment cannot be quoted. As the Appeals Board has held, "it would be clearly inappropriate to pronounce judgment -- prior even to the completion of discovery -- on what may or may not i constitute valid defenses". ALAB-122, supra, p. 14.--1/

1/ The Supreme Court has of ten recognized that antitrust cases involving complex fact issues are particularly inappropriate for summary judgment. U.S. v. Diebold, 369 U.S. 654; Paller v. I Columbia Broadcastina System, 368 U.S. 464; White Motor Co. v.

U.S., 372 U.S. 253.

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Even if the Board is not disposed to deny the Motion as ill-founded at this time, the legal and factual issues raised by the Intervenors are too complex to be adequately addressed in the five days established by the rules for response to procedural motions. Further, the Board has re-quested the parties to discuss such issues in pre-trial briefs to be submitted to the Board prior to the commencement of the hearing. In this brief, Applicant will present thorough legal and f actual analysis of the issues set forth by the Board in its order of August 7, 1972 (p. 3) , and this pleading will res' pond in full to the arguments contained in the instant Motion For Summary Finding.

Thus, should the Board decide for any reason not to deny the motion, Applicant requests leave to address such issues (and to respond to the Intervenors ' Motion for Summary Findings) in its pre-trial brief.

There is good cause for permitting the requested extention of time. Requiring Applicant to respond at this juncture will divert its energies from review of discovery provided recently by the municipal-cooperative systems and from other activities essential to the timely preparation of its case. Our. concern in this regard is particularly acute in light of the substantial diversion already necessitated by the six motions (and as many letters) from the Inter-venors and the Department of Justice within the last three

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- weeks which have required considerable time and attention by counsel and Company officials.

Since Applicant's response to the Motion for Sum-mary Findings will duplicate its pre-trial brief and since requiring such duplication at this juncture will jeopardize Applicant's ability to prepare for hearing by the date established by - the Board, ' Applicant urges the Board to permit it to incor-porate its response to the Motion in its pre-trial brief,'should the Board not deny the motion.

WHEREFORE, Applicant respectfully urges the Board to deny the Motion To Limit Discovery and to deny the Motion For Summary Finding or alternatively, to extend until the due date of its pre-trial brief the time to respond to the Motion for Summary Finding.

Respectfully submitted, Wm. Warfield Ross September 6, 1973 Keith S. Watson Wald, Harkrader & Ross 1320 Nineteenth Street, N.W.

Washington, D. C. 20036 Of Counsel:

Harold P. Graves, Esquire Consumers Power Company 212 West Tichigan 7. venue Jackson, Michigan 49201

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

) Docket Nos. 50-329A CONSUMERS POWER COMPANY ) and 50-330A (Midland Units 1 and-2) )

CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANT'S RES-PONSE TO MOTION TO LIMIT DISCOVERY AND ISSUES AND FOR SUMM-ARY FINDING, dated September 6, 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 6th day of September, 1973:

Jerome Garfinkel, Esq., Chairman Dr. J. V. Leeds, Jr.

Atomic Safety and Licensing Board P. O. Box 941 Atomic Energy Commission Houston, Texas 77001 Washington, D. C. 20545 William T. Clabault, Esq.

Hugh K. Clark, Esq. Joseph J. Saunders, Esq.

P. O. Box 127A David A. Leckie, Esq.

Kennedyville, Maryland 21645 Public Counsel Section Antitrust Division James Carl Pollock, Esquire Department of Justice 2600 Virginia Avenue, N. W. Washington, D. C. 20530 Washington, D. C. 20037 Joseph Rutberg, Jr., Esq.

Antitrust Counsel for AEC Regulatory Staff Atomic Energy Commission Washington ,- D. C. 20545 Wallace E. Brand, Esq. -

Antitrust Public Counsel Section P. O. Box 7513 Washington, D. C. 20044 Atomic Safety and Licensing Board Atomic Enercy Commission Washington. D. C. 20543 l

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Keith S. Watson I l

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