ML19317E797

Applicant'S Motion to Amend Paragraph B(2)(b) of Prehearing Order 2,App a & Certificate of Svc Encl

ML19317E797
Person / Time
Site:	Oconee, Mcguire, McGuire
Issue date:	07/18/1973
From:	Avery G, Goldem T, Golden T DUKE POWER CO., WALD, HARKRADER & ROSS
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 7912180986
Download: ML19317E797 (9)

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1-18-1 3 UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of ) s

) Docket Nos. -26 , 50-270A DUKE POWER COMPANY ) 50-287A, 50-369A (Oconee Units 1, 2 & 3 ) 50-370A McGuire Units 1 & 2) )

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APPLICANT'S MOTION TO AMEND P ARAGRAPH B ( 2) (b) OF PREHEARING ORDER NUMBER TWO To the Atomic Safety and Licensing Board:

Duke Power Company (" Applicant") respectfully request:

that paragraph B(2) (b) of Prehearing Order Number Two, issued November 27, 1972, be amended to include Joint Document Request item 6(f) (2) .-1/

In paragraph B(2) (b) of Prehearing Order Number Two, the Board sustained Applicant's objection to the production of documents relating to its constitutionally protected right to petition legislative, executive, administrative and judicial 2/

of ficials and tribunals .- The ruling specifically applied to Joint Document Request items 4(f), 4(h), 4(1), 6 (f) ( 3) , 6(i),

6(p), 16, 37 and 38. These requests originally had been itemized 1/ Applicant seeks this action pursuant to Sections 2.730 (a) and (b) of the Commission's Rules of Practice, 10 C.F.R. Part 2, and to paragraph F(6) of Prehearing Order Number Two.

2/ The ruling provides:

(b) "2. Applicant's Political Activity" Applicant's objection to joint requests number 4 (f) , 4(h) and 4 (d) ; 6 (f) (3) ,

l l 6(i) and 6(p); 16, 37 and 38 are sus-tained without prejudice to a renewal thereof on the showing of prerequisites required by law.

. N91218o 986 /9

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by Applicant in footnote 6 on page 4 of its pleading entitled

" Objections to Document Requests and Motion for Protective Orders ," dated October 12, 1972.

As the document review for compliance with the Joint Request proceeded, Applicant discovered that item 6 (f) (2) had not been included in the footnote just referred to nor, therefore, in the Board's ruling in paragraph B(2) (b) of Prehearing Order Number Two. This omission from the list of items objected to was entirely inadvertent. Applicant believes that it may have been a typographical error but cannot so establish at this late date.

Applicant believes that the fact of inadvertence is plain.

First, the subject matter of item 6(f)(2) --

" communications to or about elected officials , councils , and boards" -- f alls plainly within the political sphere covered by the Noerr-Pennington doctrine which formed the basis for Applicant's objection. It cannot reasonably be argued that Applicant did not intend to include this item in its Noerr-Pennington objection. Second, as evidence of inadvertency, Applicant has attached hereto as Appendix A an excerpt from a pleading filed in the AEC's Consumers Power Midland proceeding (AEC Dkt. Nos. 50-329A and 50-330A) . In raising the Noerr-Pennington objection in that proceeding, Consumers Power included in its list an item precisely identical l

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to item 6(f) (2) herein.-3/ Consumers is represented by the same counsel as Applicant. Its pleading in the Consumers case was filed almost simultaneously with the objections in this pro-4/

ceeding.- The inclusion of the item there and its omission here is a clear indication that the failure to include 6 (f) (2) was unintended and inadvertent.

The Board's ruling on the other items objected to by Applicant on Noerr-Pennington grounds should clearly apply to 5/

item 6 (f) (2) . Communications to elected officials are perhaps the clearest example of the type of exercise of First Amendment rights which those cases hold immune from scrutiny under the antitrust laws. Moreover, there is no question that discovery of documents relating to Applicant's participation in the political process serves to deter and otherwise " chill" the exer-cise of its First Amendment Noerr-Pennington prerogatives.

Recognizing the validity of these arguments, the Board indicated

-3/ The enumeration of items objectionable on Noerr-Pennington rounds is found in footnote 7 (page 5) of " Applicant's objections to Document Requests and Motion for Protective Orders," Consumers Power Co. (Midland Units 1 and 2), AEC Dkt. Nos. 50-329A and 50-330A, Oct. 26, 1972. The objections there stated are equivalent to the items to which Duke Power Co. objected. Item 5 (f) (2) (ii) of the Consumers request was renumbered as 6(f) (2) in the Joint Request served on Duke.

4/ The objections in this docket were filad on October 12, 1972.

The objections in the Consumers case were filed on October 26, 1972.

5/ Applicant incorporates by reference its arguments on the scope of the Noerr-Pennington doctrine contained in " Applicant's Objec-tions to Document Requests and Motion for Protective Orders ,"

Oct. 12, 19 72, at pp. 4-9 and " Applicant's Reply to Answer of the Department of Jus tice , " Nov. 10, 1972, at pp. 5-13.

at the Prehearing Conference on discovery objections held on November 17, 1972, that it was sustaining all of Applicant's objections to requests for information concerning Applicant's political activity. (Tr. 177) Therefore, based on the rationale underlying that decision, constitutional considerations require the Board to amend paragraph B(2) (b) of Prehearing Order Number Two so as to include item 6(f) (2) among those to which Applicant's objection was sustained.

The instant motion is made because of the Board's statement that only those requests to which specific objection and reference has been made would be subject to the Board's Order. (Tr. 272) Because of this direction, when Applicant discovered its inadvertent failure to include item 6(f) (2) in the enumeration contained in footnote 6 of its objections, Applicant segregated the documents responsive to item 6 (f) (2) and proceeded with production of other documents responsive to the Joint Request. Th us , production of documents has continued unimpeded. Applicant now asks the Board to take note of Applicant's omission of item 6 (f) (2) from its list of objection-able items and apply its ruling in Prehearing Order Number Two thereto.

For the reasons set forth above, Applicant believes it has demonstrated good cause for the amendment of Prehearing Order Number Two, as required by paragraph F(b) of that Order.

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9 WHEREFORE, Applicant moves the Board to amend paragraph B(2) (b) of Prehearing Order Number Two by adding 6 ( f) (2) to the enumeration of Joint Request items to which 6/

objections were sustained."

Respectfully submitted, George A. Avery Toni K. Golden Wald, Harkrader & Ross Attorneys for Duke Power Company 1320 Nineteenth Street, N.W.

Washington, D. C. 20036 July 18, 1973 .

6/ In the event this motion is denied, Applicant requests that such order be without prejudice to Applicant's seeking further relief on the ground that some of the documents in question may be legally privileged or that some may come within the categories for which a protective order is being sought.

APPENDIX A Excarpt from Consumars Powcr Co. (Midland Units 1 and 2),

AEC Dkt. Nos. 50-329A et al,

" Applicant's Objections to Document Requests and Motion l for Protective Orders ,"

Oct. 26, 1972.

AEC staff during the last eighteen months; Applicant's

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replies were also made available to the Intervenors. In addition, the other requests contained in the Joint Document Request are clearly so broad in scope as to sweep into their dragnet every document conceivably germane to any issue raised in the proceeding.

Given the ample opportunity of the Justice Depart-ment and the other parties to obtain information about the Applicant, there is no justification for permitting them to engage in an open-ended and undirected invasion of the privacy of Applicant's filing system. Since request 2, on its face, is an effort to " fish" for additional issues or evidence, it should be stricken from the Joint Document Request.

2. Applicant's Political Activity Applicant objects to the production of documents relating to its constitutionally-protected right to petition 6/ The responses to the Justice Department inquiries were filed as Amendment No. 19 to the Midland Units Applica-tion on March 22, 1971. Additional information was provided in response to Justice Department inquiries in June and October, 1971. See letter from Brand to Youngdahl of June 4, 1971; letter from Graves to Saunders of June 23, 1971; letter from Brand to Watson of October 29, 1971; and letter from Watson to Brand of June 29, 1972. Extensive interrogatories by the staff were' served on November 11, 1971 and answered by Appli-cant during the next several months.

. legislative, executive, administrative and judicial officials and tribunals. At least seven of the document requests seek such documents on their face while many other requests will undoubtedly sweep such material into their broad ambit.

The very nature of Applicant's operations as a public utility in Michigan serves to thrust Applicant into the political process with great frequency. In the first place, Applicant is subject to pervasive federal and state executive, legislative and administrative regulation'. More-over, Applicant serves many local jurisdictions only at the sufferance of the elected officials and/or the voters of such jurisdictions. In the second place, its wholesale customers and several of other neighboring utility systems are publicly owned, operated and financed.

Thus, through its frequent interaction with various executive, legislative, administrative and judicial forums and officials, Applicant inevitably participates in a signi-7/ See Requests 3 (e) (legislation and constitutional revision);

5 (f) (2) (ii) (communications with elected officials , etc. ) ;

5 (f) (2) (iii) (activities of citizen or taxpayer committees) ;

5 (k)*(activities to obtain " favorable action" from any governmental entity); 10 (e) (communications with " persons in elective or appointive office") ; 10 (f) (documents concern-ing. tax payer's committees and similar groups); 22 (issues regarding FPC or Michigan Public Service Commission juris-diction).

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

) Docket Nos. 50-269A, 50-270A DUKE POWER COMPANY ) 50-287A, 50-369A (Oconee Units 1, 2& 3) 50-370A McGuire Units 1 & 2)

CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANT'S MOTION TO AMEND PARAGRAPH B (2) (b) OF PREHEARING ORDER NUMBER 'IWO, dated July 18, 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 18th day of July, 1973:

Wa_ter W.K. Bennett, Esquire J.O. Tally , Jr. , Esquire P. O. Box 185 P.O. Drawer 1.00 Pinehurst, North Carolina 28374 Fayetteville, No. Carolina 28302 Joseph F. Tubridy, Esquire Troy B. Connor, Esquire 4100 ' Cathedral Avenue , N.W. Connor & Knotts Washington, D. C. 20016 1747 Penna. Avenue, N.W.

Washington, D. C. 20006 John B. Farmakides, Esquire Atomic Safety and Joseph Rutberg, Esquire Licensing Board Panel Benjamin H. Vogler, Esquire Atomic Energy Commission Antitrust Counsel for Washington, D. C. 20545 AEC Regulatory Staff Atomic Energy Commission Atomic Safety and Washington, D. C. 20545 Licensing Board Panel Atomic Energy Commission Mr. Frank W. Karas, Chief Washington, D. C. 20545 Public Proceedings Branch Office of the Secretary Abraham Braitman, Esquire Of the Commission Special Assistant for Atomic Energy Commission Antitrust Matters Washington, D. C. 20545 Office of Antitrust and Indemnity Joseph Saunders, Esquire Atomic Energy Commission Antitrust Division Washington, D. C. 20545 Department of Justice Washington, D. C. 20530 w ~

William T. Clabault, Esquire J.A. Bouknight, Jr., Esquire David A. Leckie, Esquire David F. Stover, Esquire Antitrust Public Counsel Section Tally, Tally & Bouknight Department of Justice Suite 311 P. O. Box 7513 429 N Street, S.W.

Washington, D. C. 20044 Washington, D. C. 20024 Wallace E. Brand, Esquire Antitrust Public Counsel Section Department of Justice P. O. Box 7513 Washington, D. C. 20044 Wald, Harkrader & Ross By:

Attorneys for Duke Power Company 1320 Nineteenth Street, N. W.

Washington, D. C. 20036

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