ML19322C017

Application for Issuance of Subpoenas Duces Tecum Re Document Production.Schedule & Certificate of Svc Encl

ML19322C017
Person / Time
Site:	Oconee, Mcguire, McGuire
Issue date:	11/16/1972
From:	Brand W, Clabault W, Leckie D JUSTICE, DEPT. OF
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 7912200735
Download: ML19322C017 (9)

Text

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UNITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COFDIISSION In the Matter of )

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DUKE POWER COMPANY 3 Docket Nos. 50-269A, 50-270A, (Oconee Units 1, 2, and 3; ) 50-287A, 50-369A, McGuire Units 1 and 2) ) 50-370A APPLICATION FOR ISSUANCE OF SUBPOENAS DUCES TECUM The Department of Justice respectfully requests the issuance of the attached subpoenas duces tecum pursuant to the Regulations of the Atomic Energy Commission,10 CFR 2.720 and Section 2.740f(3) as amended 37 F.R.15133 in which the following companies as defined in the schedules attached thereto would be required to produce the documents referred to in the schedule for inspection and copying by the Depart-ment of Justice.

Virginia Electric and Power Co.

7th and Franklin Streets Richmond, Virginia 23209 American Electric Power Co., Inc.

2 Broadway New York, New York 10004 Carolina Pc7ar end Licht Co.

336 Fayetteville Straet

- Raleigh, North Carclina 27502 South Carolina Electric & Gas Co.-

323 Main Street C:1."m5ic,.Scuth Ocrolin 2920 The Scuthern Ccapsny

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The Board's " Order Setting Forth Ebeters in Controversy" dated September 20, 1972, adopts as the relevant matters in controversy the statement of issues framed by the parties which includes:

Does Applicant have substantial monopoly power in, or has it monopolized bulk electric power supply in the relevant markets (s) ?

The documents referred to in the schedule would assist in measuring the extent of that monopoly power by establishing the existence or lack of other bulk power supply coordinating alternatives to actual or potential bulk power suppliers in the Piedmont Carolinas or other, independent sources of bulk power supply to retail distribution systems in that area of North and South Carolina.

As the Supreme Court said in United States v. El Paso Gas f

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Co. , 376 U. S . 651 (1963) speaking of the utilities industry:

l "This is not a field where merchants are in a continuous daily struggle to hold old customers and to win new ones over from their rivals." The number of episodes of actual or potential competition of the type for which documents are I

request 2d herein are relatively few; and accordingly, produc-tion of such documents made or dated on January 1, 1940, and thereafter relating to competition at wholesale in the Piedmont Carolinas, should not be a substantial burden to the addressee companies, while producing the number of episodes necessary to indicate a policy or pattern.

December 15, 1972, the time for return, is reasonable.

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On request of the subpoenaed corporations, we will, of course, waive personal appearance in Washington by a representa-tive of the corporation and would even be agreeable to return by mail accompanied by an appropriate certificate of compli-ance by the chief executive officer of the corporation.

Respectfully submitted, WALLACE E. BRAND DAVID A. LECKIE WILLIAM T. CLABAULT Attorneys, Department of Justice Washington, D. C.

November 16, 1972 J

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SCHEDULE A. De finitions ,

1. " Company" "you" or "your" means the company that is the addressee of this subpoena, its subsidiaries or affiliates, predecessor companies.and any entities providing

. electric service at wholesale, the properties or assets of which have been acquired by the addressee company.

2. " Documents" means all writings and records of every type made or dated January 1,1940, or thereafter, in the possession, control or custody of the company, its directors , officers , employees or agents , including but not lLuited to memoranda, correspondence, reports, surveys, tabulations, charts, books, pamphlets, photographs, maps, bulletins , minutes , notes , diaries, log sheets , ledgers ,

transcripts , microfilm, computer printouts , vouchers ,

accounting statements, engineering diagrams ("one-line" j diagrams), mechanical and electrical recordings , telephone l and telegraphic communication, speeches, and all other records, written, electrical, mechanical or otherwise.  !

" Documents" shall also cean copies of documents, even l 1

though the originals thereof are not in possession, custody 1 or control of the Company, and every copy of a document which contains handwritten or other notations or which other-

-wise does not d~uplicate the original or any other copy.

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3. "Rholesale customer" means any entity such as a private corporation, municipal corporation, or rural electric cooperative engaging in or proposing to engage in the distri-bution and sale of electric power at retail, including but not limited to entities additionally or solely engaging in or proposing to engage in the generation and transmission of power in bulk and/or those purchasing or proposing to purchase firm power or coordinating power and energy from other electric utilities, including but not limited to the Duke Power Company.

4. " Supply of bulk power" includes the furnishing of firm full requirements bulk power supply service at whole-sale for resale by any company or the interchange or supply of cocrdinating poner and energy.

5. " Coordination" and " coordinating" shall include, but are not limited to, reserve sharing, economic dispatch or economy interchange, and pooling of load growth for joint or staggered additions of generating or transmission facili-ties.

" Coordination" and "c'cordinating" shall also mean joint ventures or the sharing of participation in the ownership,  !

operation or output of generating facilities and the sharing l

of ownership, construction or use of transmission facilities.  ;

6. "CARVA" or "VACAR Pool" means the. utilities compris-ing those pools: Duke Feuer Company, Carolina Pouer and Light Company,,Scuth Carolina Electric and Gas Company, Virginia Electric and Fouer Ccmpany.

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I B. Documents Recuested.

1. Documents reflecting your basis for determining whether the supply of bulk power by your company to a whole-sale customer in the Piedmont Carolinas would be economically feasible based on the size of load, rate of growth and distance from existing facilities and/or any other factors considered in the determination of economic feasibility.

2. Documents concerning or reflecting (a) agreements or understandings, or (b) unilateral policies--not to compete with other electric utilities in specified areas or for specified wholesale customers in the Piedmont Carolinas for supply of bulk power, including but not limited to. restrict-ing use of ycur transmission facilities which might permit others such as Yankee-Dixie or EPIC to compete for such supply of bulk power. Documents cencerning or reflecting your policy or policies based on other considerations (apart from technical or economic feasibility) on whether or not to make such supply of bulk power to wholesale customers in the Piedmont Carolinas

[or to permit others such as Yankee-Dixie or EPIC to make such supply of bulk power by utilizing your transmission facilities) including but not limited to interpretatiens of state or federal law or interpretations of state or federal adminis tra tive action.

3. Documents reflecting your consideration of the acquisition of the facilities of wholesale customers in the

?iedmont Carolinas including but not limited to documents which re flect a boundcry line, or understanding, or arrange-ment concerning .the respective spheres of influence of your 3

company and the Duke Power Company or members of CARVA or VACAR. Please exclude documents related wholly to considera-tion of the cost of such acquisition and documents implementing or carrying out any determin'ation to acquire such wholesale-customer.

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4. Documents concerning the tieing or conditioning of any interconnection or coordination between your company and a the Duke Power Company to any such agreements, arrangements

) or understandings, in paragraphs 2 and 3, supra.

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5. Documents concerning competition between your company i

and tne Duke Power Company for wholesale customers in the Piedmont Carolinas and any request for a supply of bulk power

. by any wholesale customer now served by Duke Power Company or located generally within its service area.

6. Documents concerning joint efforts to restrict sales of bulk pcwer supply by TVA by any method which would restrict it from marketing bulk power supply in the Piedmont Carolinas.

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

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DUKE POWER COMPAh"I ) Docket Nos. 50-269A, 50-270A (Oconee Units 1, 2 and 3 ) 50-287A McGuire Units 1 and 2) ) 50-369A, 50-370A CERTIFICATE OF SERVICE I ereby certify that copies of APPLICATION FOR ISSUANCE OF SUBPOENAS DUCES TECUM, dated November 16, 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 16th day of November.

Honorable Walter W. K. Bennett William Warfield Ross, Esquire Chairman, Atomic Safety and George A. Avery, Esquire Licensing Board Keith Watson, Esquire Post Office Box 185 Toni K. Golden, Esquire Pinehurst, North Carolina 28374 Wald, Harkrader & Ross

, 1320 Nineteenth Street, N.W.

Honorable Joseph F. Tubridy Washington, D. C. 20036 ,

4100 Cathedral Avenue, N.W.

Washington, D. C. 20016 J. O. Tally, Jr. , Esquire  !

J. A. Bouknight , Jr. , Esquire Honorable John B. Farmakides Tally, Tally & Bouknig'ht l Atomic Safety and Licensing Post Office Drawer 1600 Board Panel Fayetteville, North Carolina 28302 U. S. Atomic Energy Commission Washington, D. C. 20545 Troy B. Conner, Esquire Reid & Priest Carl Horn, Esquire 1701 K Street, N.W.

President, Duke Power Company Eashington, D. C. 20006 Charlotte, North Carolina 28200 ,

Joseph Rutberg, Esquire William H. Grigg, Esquire Benjamin H. Vogler, Esquire Vice President and Antitrust Counsel for AEC General C:unsel Regulatory Sta ff Duke Power Company U. S. Atomic Energy Commission 422 South Church Street Washington, D. C. 20545 Charlotte, North Carolina 28201

. Mr. Abraham Braitaan, Chief W. L. Porter, Esquire Office of Antitrust and Indemnitv l Du'.-:e Pct ar Com.cny U. S. At mic Energy Commissica  ;

422 Scuth Church Street Washington, D. C. 20545 Charlotta, North Carolina 28201 1

l David Stover, Esquire Mr. Frank W. Karas , Chie f Tally, Tally & Bouknight Public Proceedings Branch 429 N Street, S.W. Office of the Secretary of Washington, D. C. 20024 the Commission U. S. Atomic Energy Commission Atomic Safety and Licensing Washington, D. C. 20545 Board Panel U. S. Atomic Energy Ccmaission Chairman, Atomic Safety and Washington, D. C. 20545 Licensing Appeals Board-U. S. Atomic Energy Commission Washington, D. C. 20545 WALLACE E. BRAND Attorney,' Antitrust Division Department of Justice Washington, D. C. 20530 d

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