ML19329E945

Applicant Motion to Compel Intervening Parties to Complete Responses to Applicant 720804 Discovery Order.Motion Should Be Granted.Certificate of Svc & List of Deficiencies in Responses from Zeeland,O&A & Northern Mi Encl

ML19329E945
Person / Time
Site:	Midland
Issue date:	05/21/1973
From:	Ross W, Watson K CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), WALD, HARKRADER & ROSS
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 8006180815
Download: ML19329E945 (11)

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

) Docket Nos. d N '

CONSUMERS POWER COMPANY ) and 50-330A (Midland Power Units 1 & 2) )

APPLICANT'S MOTION TO COMPEL Pursuant to Section 2.740 (f) (1) of the Commission's Rules of Practice, 10 C.F.R. Part 2, Consumers Power Company

(" Applicant") moves the Board for an order compelling three 1/

intervening parties- to complete responses to Applicant's 21 discovery, served on August 4, 1972. Applicant also moves the Board for an order compelling the intervening parties to respond to Applicant's interrogatories "under oath or affirm-ation", as the Rules provide. Applicant requests that such orders compel compliance therewith no later than May 25, 1973 or five days following a Board order (whichever is later) .

This Motion culminates Applicant's persistent efforts to obtain complete responses to its initial discovery requests 1/ O & A electric cooperative, Northern Michigan electric cooperative, and the'Zeeland electric system.

2/ The deficiencies of Intervenors' compliance with Appli-

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cant's discovery are attached hereto as Attachment A.

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', .s to the municipal and cooperative intervenors which were served on August 4, 1972. Although the Board ordered completion of all outstanding discovery demands by April 2, 1973, the Intervenors' responses as of that date were pat-ently incomplete. Applicant's motion to compel further )

i production, dated April 9, 1973, was held in abeyance by i the Board pending the efforts of the parties in question  :

1 to resolve their differences informally.  :

l On ?pril 19, 1973, counsel for Applicant presented to Intervenors' counsel a catalogue of those discovery de-mands which had not been adequately answered and which Appli-cant considered essential for the preparation of its case. In a later discussion by telephone between counsel (confirmed by the attached correspondence), Applicant requested, and Intervenors agreed to, compliance by May 7, 1973. On May 8, 1973, the Intervenors' counsel sent Applicant a letter (with copies to Board members) which purported to contain responses to Applicant's interrogatories.-3/ According to the letter O & A electric cooperative's responses had not been " received" (p.2) , Northern Michigan electric cooperative responses were "in the mail" (p. 3) and Zeeland's responses were to be supp-3/ The letter was_ accompanied by several hundred document responses as well.

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lied "as soon as possible", p.13.

Since nearly two months have passed since the Board ordered discovery completed and since the information Applicant seeks is essential to its case, Applicant submits that the Board should not countenance further delay.

In addition, the aforementioned letter from Intervenors' counsel of May 8 which contained responses to interrogatories by other Intervenors failed to conform with Section 2. 740b (b) of the Commission's Rules. That section requires that response be made "under oath or affirmation" and be " signed by the person making them", not by counsel.

Although Applicant has brought this deficiency to Inter- i venors' attention (see attached letter) , compliance has not been forthcoming. Applicant therefore requests the ,

1 Board to order the Intervenors to comply with Section 2.740b i (b) with regard to their responses to Applicant's interroga-tories.

WHEREFORE, Applicant moves the Board for orders l

4/ Intervenors' counsel today advised that Zeeland's res-ponse would be mailed forthwith while no word had been received from the other two parties.

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(1) compelling certain Intervenors to complete responses to discovery within five days and (2) compelling Intervenors to sign and affirm responses to Applicant's discovery pur-suant to Section 2.740b(b) of the Rules.

Respectfully submitted, Wm. Warfield Ross l

Keith S. Watson l Attorneys for Consumers Power Company WALD, HARKRADER & ROSS 1320 Nineteenth Street, N.W. 1 Washington, D. C. 20036 (202) 296-2121 j Of Counsel:

Harold P. Graves, Esquire Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201 May 21, 1973 2

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i ATTACHMENT A Deficiencies-in Responses to Applicant's Discovery.from 4 Zeeland, O & A, and Northern Michigan.

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NOTE: The numbers on the left of this attachment refer to the number of the item of Applicant's discovery request.

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A. Zeeland Ba'rd of Public Works

1. No Form 1-M was provided for the year 1961. This document should be furnished. Zeeland purports to have fur-nished copies of FPC Forms 3 for the period 1960-1971. App-licant has no copies of these documents. Copies requested.

3. Only one set of rate schedules was provided; others should be provided for the applicable period. No effective dates are provil.:d. Applicant's sources indicate Primary Service schedule provided not eff .:tive until Nov. 15, 1966.

Effective dates for all rate schedules should be supplied, as requested.

7. In responae to this Interrogatory, Zeeland stated that there have been no rate changes during the period in question. This response appears to be inconsistent with the 1

reply to Interrogatory 3, which states that Zeeland's rates I

were changed recently. Applicant requests explanation of I this inconsistency.

9. Zeeland did not provide either typical bill calcu-

, lations or indicate which rate schedules would apply to the various cor.sumption levels. Applicant r quests a full res-ponse to this Interrogatory.

10 (a) and (b). The five largest commercial and indus-trial customers were indicated as of the February 1973 bill-ing. No historical or other data were provided as requested.

l These data should be furnished.

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l and circuit miles of distribution facilities for each year 1960-1971. . Zeeland provides one nu.nber with no indication of the time period to which it applies. Complete response requested.

77. Reply "see FPC reports" is unresponsive. Complete response requested. .

79. This interrogatory inquires if the municipal has ever considered buying wholesale power. Zeeland's response "we are not a member of NMCPP { sic]" is totally unresponsive.

Reply requested.

93 and 94. F.esponses refer to FPC Form 12. These reports supply the data for 1960-1971, but they contain no projections ,

for the next 10 years. Responce for the period 1972-1981 should be furnished.

B. O&A

3. The customer characteristics required for service under various rate schedules refer to " established rules and regulations" but these rules are not provided. These docu-ments should be furnished.

l The' earliest commerc'ial and industrial rate schedules l l

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provided are January 1, 1968. O&A should provide commercial and industrial rate schedules applicable for the period Jan-

-uary 1, 1960 to December 31, 1967.

10. The response fails to provide (for each customer listed) the voltage at which service is supplied and the applicable rate schedule. These data should be furnished.

28 (a) The dates on which service was initiated to each of the largest customers gained over the period under consideration are not given. These dates should be provided.

36 (a) . O&A responds to this subparagraph:

(ai) yes (aii) no This response indicates that customers had the option of changing from O&A service to service by another utility, but'that the reverse was not true. Applicant requests clar-ification of this response since it appears contradictory l and purports to cover the entire period from 1960 to date.

(c). O&A responds to this subparagraph:

(ci) Our records co not indicate why an account was retired, but (the respondent is) aware of some changeovers to another utility on at least e-four occasions. )

(cii) Don't know.

1 Although O&A may not possess the exact kilowatt-hour con-1 sumption information requested in (cii), a general statement

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i to the class and size of customers who changed service should be provided.

39. No response provided. Reply requested.

C. Northern Michigan Electric Cooperative

66. Northern Michigan has furnished in response to this

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request, power supply studies for 1961, 1964 and 1968. The 1968 study is responsive for the years 1970 to 1979. Earlier studies, although they deal with capacity requirements, do not provide data for 1960-1969 on reserve criterion employed by Northern Michigan. The response is therefore incomplete.

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ATTACHMENT B l l

l Correspondence between Counsel  !

for Applicant and Intervenors concerning compliance with l

Applicant's discovery. -l.

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1 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 MOTION TO_ COMPEL, dated May 21, 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 21st day of May, 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. Clerk, Esq. Joseph J. Saunders, Esq.

P. O. 3ox 127A David A. Leckie, Esq.

Kennedy ille, 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 i

Washington, D. C. .20545 ,

Wallace E. Brand, Esq.

Antitrust Public Counsel Section 4

P. O. Box 7513 Washington, D. C. 20044 Atomic Safety and Licensing Board Atomic' Energy Commission Washington, D. . C. 20545 Keith S. Watson l

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