ML19317E223
| ML19317E223 | |
| Person / Time | |
|---|---|
| Site: | Oconee, Mcguire, McGuire  |
| Issue date: | 12/15/1972 |
| From: | Avery G, Ross W, Watson K DUKE POWER CO., WALD, HARKRADER & ROSS |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 7912170469 | |
| Download: ML19317E223 (24) | |
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of ) Docket Nos._50-269A, 50-270A, DUKE POWER COMPANY ) 50-28 , 50-369A,
) 50-370A (Oconee Units 1, 2 & 3 )
McGuire Units 1 & 2) )
APPLICANT'S MOTION TO COMPEL DISCOVERY BY INTERVENORS LANDIS, SHELBY AND LEXINGTON IN REGARD TO CERTAIN REQUESTS To the Atomic Safety and Licensin- Board:
Duke Power Company (hereinaf ter " Applicant") respect-fully moves this Board, pursuant to section 2.730(a) and (b) and 2.740 (f) of the Commission's Rules of Practice, 10 C.F.R. Part 2, for an order compelling the cities of Lexington and Shelby and the town of Landis, intervenors in this proceeding, to clarify their responses and/or respond more fully to certain interrogatories and docume'nt requests heretofore served on such parties.
Intervenors Landis, Lexington and Shelby submitted responses to request items 1-4, 7, 17, 18, 39, 40, 55, 82, 84 and 91 on November 14, 1972. Their counsel stated that these were intended as full and complete responses to the requests propounded. For the reasons stated below Applicant submits that a clarification or further response is necessary in regard 7912170 % y
to the following items:
Landis - 1, 2, 4(a), 17, 40, 82 and 91; Shelby - 1, 2 , 4 (a) , 17, 55 and 82; Lexington - 1, 2 , 4(a), 82 and 91.
It may be possible for counsel to resolve some of these items. However, there was not sufficient time to review the responses adequately, and, in addition, resolve the problem areas with counsel for the intervenors, and thereby limit the motion to the Board to those matters left unresolved. Should the Board sc desire, however, we would be willing to attempt to resolve any or all of the following items with counsel for the intervenors.
Landis
- 1. The request states:
For each year 1960 to date furnish copies of all finan,cial, operating, load and capacity reports or statements pertaining to the muni-cipality's electric system and which have been submitted to the Federal Power Commission, the North Carolina Utilities Commission, the Edison Electric Institute, The American Public Power Association, Electric Power in Carolina, In-corporation (sic] , Electricities of North Carolina or the Piedmont Electric Cities Assoc-I 4
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l iation, or to any local governing authority or official.
In response to this item, Landis submitted FPC Annual Power System Statement, Form 12-A, and North Carolina Utilities Commission Annual Report, Form M-U, for each year requested. On advice of counsel, Landis did not include data submitted to Electric Power in Carolina (EPIC) and Electricities of North Carolina.
(a) In light of the Board's ruling on discovery as to EPIC, data submitted to that organization should be proccced.
(b) No objection was ever made to production of data submitted to ElectriCities of North Carolina, and, accordingly, Landis should be required to produce such data.
(c) FPC, Form 1-M, Annual Report, for years ending June 30 have been submitted by other intervenors. Landis should clarify whether it has filed such reports for any of the years ending June 30, 1960 through 19 72, and, if so, produce such reports for inspection and copying. In order to avoid any am-biguity, if any of these reports were not filed, Landis should so state.
(d) Any maps filed with FPC Forms 12-A should be pro-duced. None were submitted with the copies of the reports served.
(e) The following pages of certain forms submitted are illegible and cannot be reprodrced. Clear copies of the following should be produced:
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(i) Form M-U, year ending June 30, 1966 -
the entire report except for the cover page; (ii) Form M-U, year ending June 30, 1968 -
Exhibits A and B; (iii) Form M-U, year ending June 30, 1964 -
Page MU-3 and Exhibit A (balance sheet) ;
(iv) Form 12-A, year ending Dec. 31, 1961 -
Schedule 2.
- 2. The request states:
For each year 1960 to date furnish copies of all public reports, writings or notices of any type reflecting the financial or operating condition of the electric system of the muni-cipality.
Copies of the town's audit reports (Report of Examina-tion) for the years requested, together with a copy of a 1967 Electric Distribution System Study Report, were submitted in response to this item.
(a) Applicant believes that in addition to the audit reports, other financial and operating reports, perhaps less formal, are released to the public; if so, these documents should be produced.
(b) Reports of Examination for the years ending June 30, 1961 and 1966 are illegible and cannot be reproduced.
i Clear copies should be submitted.
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-S- l 4 (a) . The request states:
Furnish copies of all electric rate schedules, tariffs, rate contracts or agree-ments, conditions and terms of service or any other statement of rates applicable to each customer class served by the system and in effect at any time during the period January 1, 4
1960 to date.
Landis submitted certain rate schedules and lists of rates, effective after June 1, 1963, in response to this request.
i The response is incomplete in the following respects:
(a) No schedules are provided for the period January 1, 1960, through June 1, 1963. Accordingly, all electric rate schedules, tariffs, rate contracts or agreements, or conditions or terms of service in effect at any time from January 1, 1960, through June 1,1963, should be produced.
(b) Schedule L - clarify discrepancy between the 2.7-cent incremental rate shown on the rate schedule and the 1.7-cent incremental rate shown on the typewritten sheet of rates submitted. (Both pages are attached hereto as Exhibit A.)
(c) In regard to Landis' wholesale rates, only a typewritten sheet was submitted on which the rates were indi-cated.- The terms and conditions by which service may be taken under this schedule should be produced.
b (d) Although the town reports in Form 12-A that it has industrial customers, no industrial rate schedule was pro-duced. This omission should be clarified.
(e) Reference is made in Form M-U for the year ending June 30, 1970, to a schedule W, but no schedule was produced.
The schedule should be provided, together with its effective date, and a statement as to whether it is still in effect.
- 17. The request states :
Furnish a copy of your system's charter, and any other document, statute or provision, which evidences the system's right to organize and operate together with any rules, regulations, bylaws or other similar directives promulgated by the system or any other entity which govern its organization and operations. Furnish a copy of any, amendment to or suspension or re-penler of the aforesaid documents adopted, or in effect, during the period January 1, 1960 to date.
In response to this request, Landis submitted only the act attached hereto as Exhibit B. The response thus appears to be wholly deficient and Landis_should be required to produce the material requested.
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- 40. The request states:
State the most recent credit rating applicable to debt instruments of the system or the municipality.
Landis answered that there is "[n]o current credit rating applicable to debt instruments of the Town. " (Emphasis added.) This is not responsive and Landis should state the "most recent credit rating applicable" as requested.
- 82. The item requested a listing of the electric, power, energy or similar organization in which the town or the system is a member and certain information regarding such associ-ations and the town's involvement therein. (The request, being lengthy, is set forth in full as Exhibit C.)
(a) In response to subpart (a) of the request, Landis stated that it is a member of Piedmont Electric Cities Associa-tion and Electricities of North Carolina, and gave the dates of its membership in such associations. In addition, Landis stated that on advice of counsel, it was "not submitting any data per-taining to EPIC or Electricities." In light of the Board's decision in regard to discovery involving EPIC and the failure of the intervenors to object to providing information and docu-ments relating to ElectriCities of North Carolina and Piedmont !
Electric Cities, Landis should be directed to respond fully to all subparts of request 82 in regard to these three associations.
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1 (b) By agreement between counsel, each intervenor could defer responding to subparts (b) through (d) of this item until after submitting its response to subpart (a). Applicant would then specify the organizations, listed in answer to sub-part (a), as to which it wanted the information sought in (b) through (d). Applicant states now that it wishes Landis to respond to (b), (c) and (d) for each association listed in sub-part (a) and for EPIC and Electricities of North Carolina.
- 91. This item called for production of "the organi-zation chart of the system." In response, Landis stated'that
"[t]here is no official organization chart of the system." If Landis has an " unofficial" organization chart in its possession, custody or control, it should be directed to produce such chart.
Shelby
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1.- In response to this request, Shelby submitted FPC Forms 12-A and North Carolina Forms M-U for the years indicated. For the reasons outlined in regard to Landis, Shelby should be directed to:
(a) Provide data submitted to EPIC and Electricities l
of North Carolina; l
i l (b) Submit any FPC Form 1-M filed for the years ending June 30, 1960 through 1972, or state that such reports were not filed; and i
- / Since the requests made to each intervenor were identical, only those requests not previously quoted in this motion will be set forth.
(c) Produce any maps filed with FPC Forms 12-A.
(d) In addition, clear copies of the following docu-ments should be provided in lieu of those submitted, the latter being illegible and incapable of being reproduced:
(i) Audit Report, year ending June 30, 1962 - Proposed budget 62-63, pages 1, lA, 2, 3, 4, 5, 6, 7 and last unnumbered page; (ii) Except for title pages, all of FPC Forms 12-A for.the years ending December 31, 1960, 1962, 1964, through 1968 and 1970; (iii) Form MU, year ending June 30, 1972
- pages MU 5 through MU 7.
- 2. As in the case of Landis, Applicant believes that in addition to the audit repcrts submitted, other financial and operating reports have been issued to the public. If so, the Board should require Shelby to produce these documents.
4 (a) . Shelby indicates that it has industrial cus-tomers, but, like Landis , has not submitted any industrial rate schedule, tariff or contract. Shelby should be required to submit appropriate documents or clarify its response in this regard.
- 17. Shelby has submitted a copy of pages 1-81 of its charter and code. Page 81 indicates that the document con-tinues on page 85 ("The next page is 85"), but no additional l
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pages have been submitted. The Board should require Shelby to submit such additional pages, or state why the same are in-applicable.
55 (a) . As modified by agreement between counsel, the request states:
Describe each change in territory served with electricity by the system from January 1, 1960 to date, the classification and number of customers affected and annual kilowatt-hour sales to such customers, or where the foregoing classification, number of customers and consump-
' tion information is not available, state the size of the area involved, the population of the said area at the time of the change, the number of households in the said area at the time of the change and any information compiled in connection with the change in the said territory which indicates the number or type of commercial or industrial establishments in the area at the time of the change.
In response, Shelby lists 2 schools and 4 areas in which service has been extended. As to the latter, the approximate size of the area has been provided. No other information called for by the request, however, is given. Accordingly Shelby should 1
be directed to provide the additional information requested or to state why it cannot do so.
55(b). The request states:
Furnish each document related to any territorial gain or loss over the afore-mentioned time period (January 1,1960 to date].
Shelby has produced excerpts from Board of Aldermen I meetings and other enactments regarding the territorial changes listed in response to subpart (a) of the item. Other documents to which reference is made in the minutes have not been provided and Shelby should be required to produce these:
(a) "A petition by all the owners of the property" in Wesson Heights, an area annexed, which document is referred to in an Ordinance Extending,the Corporate Limits of the City of Shelby; (b) A letter from "the School Board requesting the extension of all City utility services to the sites of the pro-posed elementary schools (Morgan and Jefferson) " referred to in minutes of Regular Meeting, Shelby Board of Aldermen, October 21, 1968.
(c) In addition, there is a discrepancy between the reference in the October 31, 1968 Board of Aldermen minutes to
extension of utility services to the " Morgan" school and listing number 4 of Shelby's response to request 55 (a) which refers to extension of services to the " James Love School." This discrep-ancy should be explained.
- 82. This request was set forth in Exhibit C.
Shelby lists several associations of which it is a member, but has not stated whether it is a member of EPIC --
possibly on the ground relied on by Landis. Since information regarding EPIC must be produced under the Board's ruling, Shelby should be directed to respond with regard to EPIC.
82 (d) . This item seeks the articles of association or other documents pertaining to the organization of each asso-ciation in which the municipality or its electric department is a member. Shelby has refused to respond to this request on the ground that it calls for a legal conclusion. Applicant sub-mits that a request for the production of an association's charter or articles of association or incorporation is not asking for a legal conclusion and requests the Board to direct Shelby to respond.
Lexington
- 1. In response to this request, Lexington submitted some but not all of the FPC Form 12-A, FPC Form 1-M and North Carolina Form M-U for the years indicated.
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(a) Forms for the following years were not provided, however, and Lexington should be directed to produce them:
(i) FPC Form 1-M, years ending June 30, 1960, 1961 and 1972; (ii) North Carolina Form M-U, year ending June 30, 1972.
(b) Applicant also requests that the numbers shown on Schedule 4 of FPC Form 12-A for the year ending December 31, 1971 be verified as follows:
Col. 1 Col. 2 Col. 3 Line 3 10,125 83,363,541 4 1,594 47,611,323 5 72 59,107,519 Due to typing carbon copies of this report, Applicant believes that the numbers shown are not properly aligned and therefore seeks this verification.
(c) For the reasons outlined in regard to Landis, Lexington also should be directed to:
(i) Provide data submitted to EPIC and Electricities of North Carolina; (ii) Produce any maps filed with its FPC Forms 12-A.
(d) Due to the illegibility of those served, Lexington should produce clear copies of the fo11cwing forms:
s (i) FPC Form 1-M, years ending June 30, 1967 and 1970; (ii) FPC Form 12-A, years ending Decem-ber 31, 1963 and 1965; (iii) North Carolina Form M-U, years end-ing June 30, 1960, 1961, 1963, 1968, 1970 and 1971.
- 2. The audit report for the year ending June 30, 1972, though requested, has not been provided. Lexington should be directed to produce it.
Also, as in the case of Landis and Shelby, Applicant believes that in addition to the audit reports submitted, other financial and operating reports have been issued to the public.
If so, the Board should require Lexington to produce these documents.
4 (a) . The rate studies and schedules submitted in response to the item contain numerous omissions and unclear information. To resolve these matters, Applicant requests that the following be supplied or clarified: ,
l (a) Electric Rate Schedule 3 - Small Industrial l i
(contained in the 1964 Electric Rate Analysis Report): pro-vide the number of months and the number of KW applicable in determining the alternate billing demand. Applicant believes these numbers should be eleven months and 20 KW but has no way of verifying this without Lexington's assistance.
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(b) The following requests arise from the rate schedules contained in the 1969 Retail Electric Rate Study:
(i) Residential Service Schedule effec-tive July 1, 1966: are all the terms and i conditions of Schedule No. 1 effective under the Residential Service Schedule except for the change in the monthly minimum charge and monthly energy charge; 1 (ii) Residential All-Electric: this sheet states that it is revised as of March 1, 1967.
No comparable earlier schedule was provided.
Accordingly, Lexington should produce each l
all-electric rate schedule in effect at any time during the period January 1, 1960 through l February 28, 1967. In addition, the sheet submitted shows only the rates applicable as of March 1, 1967, but includes no other terms or conditions of service under the all-I electric schedule. This information was called for and should be produced.
(iii) Schedule 2 - verify that the terms and conditions shown in Sections V and VI of this l schedule also apply to the Schedule 2 included in the 1964 Electric Rate A,:alysis Report. In
addition, it is unclear whether the monthly minimum charge shown on the rate schedule in the 1969 Study is S2.00 or $3.00. If it is
$3.00, this would constitute a change in rate from that shown earlier and the effective date of this new rate should be provided.
(iv) Schedule GA - provide the effective date and the full terms and conditions of this schedule; (v) Schedule 3: provide the effective date of the $30 monthly minimum demand charge; supply the number of KW omitted from section IV; verify that the terms and conditions shown in sections VI and VII of this schedule also apply to the schedule 3 contained in the 1964 Report.
(vi) Schedule 4 - provide the effective date of this schedule; verify that the terms and conditions shown in sections VI and VII of this schedule also apply to the Schedule 4 contained in the 1964 Report; (vii) School Rate - verify that the effective i
date of these rates and those shown separately '
on a sheet marked Special All Electric Rate (SA) was November 12, 1964.
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(c) The following requests arise from the rate schedules contained in the 1972 Retail Electric Rate Study and from the omission of certain earlier schedules from this study:
(i) Schedule 5 (Time Controlled Storage Water Heating) : supply a copy of this schedule, provide its effective date; state whether it is still in effect and, if not, the date on which it was suspended; (ii) State whether Sch'edule 2 is still in effect and, if not, provide the date on which it was suspended; (iii) Schedule G: state whether this schedule replaced Schedule 2; provide the full terms and conditions contained in Schedule G; (iv) Schedule GA: provide the effective-date of this schedule and the effective date of the increase in the rate block over 400 kwh per kw demand to 0.55 cents per kwh; l (v) Schedule 3 - provide the missing kw i
! _ figure in section IV; i (vi) Page No. 1 Cr4+ 7 of Appendix F indi-l cates that thi s ; vtr amers were served under Schedule SA. .rlso, this page only shows a
two-block rate as distinguished from the rates listed in Appendix B which indicate more than two blocks. Clarify whether the rates extended under this schedule to the x'
"New Junior High School" are still in effect for that school or for either or both of the other two customers indicated; state when the rates shown in Appendix F became effective for the other two customers; clarify the discrepancy between the rate blocks shown in Appendix F as opposed to Appendix B.
(d) Provide the effective date of Schedule I.
- 82. As above, Lexington should be directed to respond to this request in regard to EPIC and ElectriCities of North Carolina. .
- 91. Lexington has provided an organization chart of the city, but not of its electric department. If an organiza-tion chart of the latter is in the possession, custody or control of the city, Lexington should be required to produce it.
For the reasons stated above, Applicant requests
A iho Board to compel intervenors Shelby, Lexington and Landis, rccpectively, to produce the clarifications and additional natorial set forth above.
Respectfully requested, Wm. Warfield Ross George A. Avery l
Keith S. Watson Toni K. Golden WALD, HARKRADER & ROSS 1320 Nineteenth Street, N.W.
Washington, D. C. 20036 Attorneys for Applicant
$ccember 15, 1972 l
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EXHIBIT E AN ACT TO AMEND CHAPTER 245 PRIVITE LA?!S OF 1901,33 TITLED, "AN ACT TO INCORPORATE THE TOWN OF LANDIS"j. ,
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THE GENERAL ASSEMBLY OF NCRTH CARCLINA DO EUACT:
- 1. That the Commissioners or Board of Aldermen a'nd their successors in office of the Town of Landis '
shall not have the right to sell, lease or otherwise dis-pose of the electric light plant, transformers, wires, poles, meters or anything pertaining to the municipaly owned electric light plent until the question of sale or other disposal of said plant shall be first submitted to the voters of the incorporated tcwn of Landis, and such sale shall not taze pince unless ratified by three.fcurths of the qualified vo ters of the town of Landis.
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- 2. That this Act shall be in force from and af ter its ratification. .
rhis tne day of February, 1931.
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EXHIBIT C
- 82. Is the system, the municipality or any municipal official (in his capacity as such) a member of any electric, power, energy or similar association or organization? If so:
(a) Provide the name and address of each such association or organization and state the year in which membership commenced; (b) State the date on which each such asso-ciation or organization was organized, the purposes for which it was formed, and, if known, the names and addresses of the individuals responsible for the formation of the association or organization, together with the name and address of their employer at that time and at present.
(c) State the name and address of any system or municipal employee who is or has been an officer or direc-tor of each such association or organization during the period of January 1,1960 to date; the title of the position he held; the period of time during which such office or directorship was held; and the present position of the employee in the i system or the municipality, or if not now employed by the system or the municipality, the date on which such employment l terminated and the reason therefor.
(d) Provide a copy of the original articles of incorporation or ,1ny other document which describes the I
purposes, membership categories, legal status, members' voting rights and structure of each association or organi-zation named in response to subparagraph (a) of this inter-rogatory, together with a copy of any amendment thereto adopted to date by the association or organization, whether or not such amendment is presently in effect.
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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 COMPEL DISCOVERY BY INTERVENORS LANDIS , SHELBY AND LEXINGTON IN REGARD TO CERTAIN REQUESTS, dated December 15, 1972, in the above-captioned matter have been served on the following by deposit in the- United States mail, first class or air mail, this 15th day of December,1972:
Walter W. K. Benr.ett, Esquire J. O. Tally, Jr., Esquire P. O. Box 185 P. O. Drawer 1660 Pinehurst, North Carolina Fayetteville, North Carolina 28302 Joseph F. Tubridy, Esquire Troy B. Connor, Esquire 4100 Cathedral Avenue , N.W. Reid & Priest Washington, D. C. 20016 1701 K Street, N.W.
Washington, D. C. 20006 John B. Farmakides , Esquire .
Atomic Safety and Joseph Rutberg, Esquire Licensing Board Panel Benj amin 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
1 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 1513 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 Wald, Harkrader & Ross By:
Attorneys for Duke Power Company 1320 Nineteenth Street, N.W.
Washington, D. C. 20036 e
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