ML19319B844
| ML19319B844 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 09/09/1974 |
| From: | Charnoff G, Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8001280674 | |
| Download: ML19319B844 (38) | |
Text
sh S&ptembtr 9, 1974
-UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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THE TOLEDO EDISON COMPANY and
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r THE CLEVELAND ELECTRIC ILLUMINATING
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COMFANY
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(Davis-Besse Nuclear Power Station,
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Docket Nos. 50-346Ar (Unit 1)
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50-440A
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50-441A THE CLEVELAND ELECTRIC ILLUMINATING
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(Perry Nuclear Power Plant,
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Units 1 and 2)
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OBJECTIONS TO THE INTERROGATORIES AND DOCUMENT REQUESTS OF TEE TOLEDO EDISON COMPANY, PENNSYLVANIA POWER COMPANY OHIC EDISON COMPANY AND DUQUESNE LIGHT COMPANY Pursuant to Section 2.740 of the Atomic Energy Commission's Restructured Rules of Practice and Prehearing Conference Order No.
2, dated July 25, 1974, the Toledo Edison Company, Pennsylvania Power Company, Ohio Edison Company and Duquesne Light Company
(" Applicants")
hereby raise the following objections to the Interrogatories pro-pounded to them by the City of Cleveland
(" City") on the grounds stated.
These objections are not intended, and should not be construed, as a waiver by Applicants of any rights they have in connection with the unresolred procedural issues in this proceeding, specifically the issues relating to the jurisdiction and scope of this proceeding, and all such rights are hereby explicitly reserved.
8001280 g
. 1.
Definition No. 1 Applicants raise a general objection to the defini-tion of the term " Company" insofar as it includes " subsidiaries or affiliates" of Applicants.
Section 2.741(a) of the Commission's Restructured Rules of Practice explicitly limits requests for information served "on any other party" to those materials "which are in the possession, custody or control of the party upon whom the reques-is served * * *."
Thus, to the extent that the City is seeking production by CEI of documents in the possession, custody or control of " subsidies or affiliates" of Applicants, such request is improper under the Commission's rules.
Moreover, to sweep into the Interrogatories by use of an overbroad definition non-party entities other than Applicants greatly exaggerates the already burdensome nature of the Interro-gatories.
These other entities should not be forced to conduct a file search of the nature envisioned by the City unless substan-tial basis is shown as to the need for such a search and a more detailed specification of the materials sought is made, as required under the Commission's rules dealing with the issuance of subpoenas ducas tecum to persons not parties to a proceeding (10 C.F.R. S2.720).
Finally, to the extent that the City's Interrogatories are intended to reach only those materials relating to such affili-ated companies which are within the possession, custody and control of Applicants, the effort is objectionable on grounds of remoteness and burdensome.
Under this interpretation, Applicants would have l
. to search their files to determine whether they had any document therein which, for example, related to reliability data for any such affiliated companies under Document Request No. 14(e), or the various cost data requested in Document Request No. 27 for each of these other companies' generating facilities.
This type of search would be virtually impossible to accomplish without con-siderabic delay, and, equally important, would have no reasonable relationship to the issues in this proceeding.
Accordingly, CEI requests that the definition of the term " Company" as used in the City's Interrogatories be restricted to Applicants " predecessor companies and any entities providing electric service at wholesale or retail, the properties or assets of which have been acquired by Applicants."
2.
Definition No. 3 Applicants also raise a general objection to the definition of the term " Electric Utility" as being far too broad to serve any meaningful purpose in this proceeding.
No geographic limitation whatsoever is contained 1: the definition so that dealings of any sort which Applicants might have had with " electric utilities" located in areas of the United States far removed from l
their own respective service areas, or from the Combined CAPCO l
Company Territories ("CCCT"), would presumably be dragged into the discovery process.
Furthermore, the definition includes not only those described entities which actually own or control electric power
. facilities, but also any other such entity which so much as
" proposes to own or control" electric power facilities.
To hold Applicants to the burden of undertaking a file search for docu-ments pertaining to all entities with which they have had some dealing and which might, at one time or another, have had under consideration a proposal to own or control electric power facilities is unduly burdensome in the extreme.
More likely than not, Applicants would not even be aware of such a proposal.
This definition goes well beyond the definition of
" electric entities" used by the Licensing Board in its Order Requesting Clarification of June 28, 1974 (p. 4) and in Prehearing Conference Order No. 2 of July 25, 1974 (ft. 10), both of which were restricted as to relevant geographic area and as to actual ownership and control of electric power facilities.
Applicants request that the definition of " Electric Utility" in the City's Interrogatories be similarly restricted, with the relevant geo-graphic area being limited to the CCCT.
3.
Definition No. 5 Applicants raise a further general objection to the definition of the term " Competition."
Basically, this objec-tion is grounded on the fact that the definition as written defies comprehension.
The City has apparently abandoned the dictionary definition of the word -- as "the act or process of competing", or "a contest between rivals" -- in favor of its owt formulation which speaks in terms of actual or possible effects
. on "any other electric utility company" of action taken or contem-plated by Applicants, and vice-versa.
Without regard to the City's listed-areas of " action" in its definition, Applicants submit that, at the very least, the definition should be revised to make it clear that the reference to "any other electric utility company" includes only such entities which are competitors or potential competitors of Applicants, and not all others.
- Moreover, it is difficult to understand how a= tion " considered' by Applicants, but not taken, has any place in the definition of " Competition";
nor should the term be so broadly defined as to include the nebulous reference to " estimated or possible" effects on competitors.
4.
Scope of Production Applicants object to the scope of production as contemplated in the City's Interrogatories in the following two respects:
(a)
The City designates January 1, 1964 as the general starting date for purposes of discovery in this proceeding, and in many instances seeks the production of documents as far back as January 1, 1960.
To require Applicants to conduct a file search for documents which are ten, and in some instcnces fourteen, years old is unduly burdensome and wholly unnecessary to resolve the matters in dispute in the present inquiry.
This is not a general antitrust case, such as might be brought in a Dictrict Court, requiring review of all aspects of Applicants' conduct over an extended period; it is a very narrow hearing under Section
105 of the Atomic Energy Act to ascertain only the anticompetitive impact, if any, of proposed nuclear plants scheduled to come on the line some five years hence.
Significantly, no charges of anticompetitive conduct have been levelled by anyone against the Applicants.
There thus is clearly no reason to delve into the background files of these four utilities to ascertain the nature and scope of their local businesses in the distant past.
Such a probing into matters con-cerning how generating and transmission facilities operated in past years is appropriate in this case only with regard to the City, since the status of its facility as "a viable competitor" in the City of Cleveland has alone been placed in issue -- and that was done by the City itself.
Plainly, no useful purpose can be served by forcing these Applicants, who have no real involvement with the t
City, to conduct an exhaustive examination of stale files which cannot possibly contain information relevant to the present proceeding.
Accordingly, Applicants request that the discovery contemplated in the City's Interrogatories be limited to the period from January 1, 1967 to date.
It is within this time frame that these Applicants and The Cleveland Electric Illuminating Company became members of CAPCO and that planning coramenced for the
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construction of tSa nuclear plants involved here.
l (b)
Applicants request that no production of docu-l l
ments be required with respect to documents on file ane; available to the public in the office of the Federal Power Commission, the
. Securities and Exchange Commission, the Atomic Energy Commission, the Ohio Public Service Commission, the Pennsylvania Public Ser-vice Commission, or any other State or Federal regulatory body or office, and further, that no production be required of documents previously furnished to the City of Cleveland and which are available.
In administering the similar provision of Rule 34 of the Federal Rules of Civil Procedure, courts have held that where the information is available to the party other than through discovery, resort to the discovery process will not be permitted.
See Reid v. Harper & Brothers, 17 F.R.D. 281 (S.D.N.Y. 1955).
5.
Interrogatory No. 2 The City joined in the interrogatories propounded to Applicants by the AEC Staff and the Department of Justice, jointly, and adopted said interrogatories as its own.
Applicants' objection to No. 2 of those interrogatories, as set forth in Applicants' objections to the Joint Request, applies with equal force to the City of Cleveland and is incorporated herein by reference.
6.
Document Request No. 1(d)
Applicants object to this request for the occupa-tions of Applicants' directors and an identification of all their other business affiliations.
There exists no conceivable reason why the City should be provided such information in this proceeding.
l The separate business of Applicants' directors are totally irrele-vant to the issues raised concerning the possible antitrust
. implications of granting a license to construct the subject nuclear facilities.
To seek to impose on Applicants the undue burden of searching their files for documents showing this information can only be designed to harass Applicants by requesting that they undertake a wholesale fishing expedition on the City's behalf.
If, as is suspected, the city is interested in learning whether Applicants' directors are holding positions in other electric utility con'panies, it should direct a question to that limited, point, rather than to make a broad, generalized inquiry for docu-mented information unrelated to the subject matter of this proceeding.
7.
Document Recuest No. 2(d)
Applicants object to this request for documents relating to legislation and constitutional revisions which affect certain specified activities of electric utilities.
The request is far too broad in scope and without any meaningful relevance to this proceeding.
The City's definition of " documents" is sufficiently expansive to include virtually every scrap of paper and record in each Applicants' voluminous files.
If literally construed, compliance with the present request would require Applicents to make an exhaustive file search for written references
" relating to" any legislation of the sort described -- whether it be Federal, State or local legislation, and without regard to its relationship to the City.
No good reason exists for imposing such a burden on Applicants.
Certainly, documents relating to legis-lation and constitutional revisions enacted by other municipalities,
. for example, can be of no legitimate interest to the City in pursuing the claims it has raised here.
Without a more specific showing of relevance, discovery of these materials should be barred.
8.
Document Recuest No. 4(a)
Applicants object to this request for documents relating to area growth and site development as being unrelated to the matters at issue and so broadly phrased as to make compliance unduly burdensome and vexatious.
While the request is far from clear, it appears to be addressed to documents concerning new areas of growth or development available for service "by electric utilities other than [ Applicants]."
The City's interest in such information clearly has no relevance to this proceeding.
This is particularly so with respect to Applicants l
here, which are concededly not engaged in retail competition with the City and have had no dealings with American Municipal Power-Ohio, Inc.
The Department of Justice acknowledged in its Perry Advice Letter (p. 3) that, with respect to these Applicants, it could find no evidence of anticompetitive behavior in their respective service areas that would warrant antitrust review.
In these circumstances, the City's efforts to initiate a fishing expadition at Applicants' expense into the entire area of com-mercial development, as reflected in Applicants' documents, is wholly imappropriate.
The material sought can have no probative value in this proceeding, and there thus exists no legitimate i
purpose to impose on Applicants the oppressive burden of conducting l
an extensive file search for the documents requested.
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9 Document Request No. 4 (c)
Applicants object to this request which seeks the production of all docu,3gsts relating to inquiries, invitations, negotiations, evaluation, and proposals for the acquisition of electric power facilities of municipalities, electric cooperatives or other electric utilities.
The City has made no attempt to provide any definition to the categories of documents sought under this request, but has been content to ask for this material 1
in the broadest possible terms.
A conscientious effort by the Applicants to comply would require a file search of massive proportions for documents which clearly can have no relevance to this proceeding.
In this regard, it bears repeating that Applicants are not competitors of the City of Cleveland; the City is not located in their service areas.
Applicants' inquiries to, and negotiations with, other municipalities have no bearing on the charges which have been made in the City's petition to intervene, all of which concern the special relationship between the City and The Cleveland Electric Illuminating Company.
Clearly, no legitimate purpose can be served by requiring Applicants to reveal to the City any of the information sought in this request.
To impose on Applicants the intolerable burden of conducting the sort of file search contemplated by the expansive terms used in Document Request No. 4 (c)~ can only result in a undue delay of the hearing process, and with no liklihood that the documents
. produced will contribute in any meaningful way to a re:alution of the issues under consideration.
10.
Document Request No. 5 Applicants object to this entire request for correspondence with, and other documentation relating to, Edison Electric Institute and National Association of Electric Companies, as being so devoid of definitional framework as to make it vir-tually impossible to ascertain what dot aments are being sought.
The City has made no pretense of relating this request to the present proceeding.
It has not restricted the inquiry to the subject nuclear facilities; nor has it tailored the scope of the request to clothe only those documents relevant to the City's claims.
Rather, the City has sought to launch an extravagant fishing expedition involving the whole utility industry at Appli-cants' expense.
To even attempt compliance with this request would measurably delay the proceeding.
It would impose on Applicants the intolerable burdea of examining many rooms of documents, without any assurance that the material produced pursuant to this request would have any relevance to the contested issues.
At a time when the lagging economy has already forced virtually all privata electric utilities to make drastic budget cuts and to lay off numerous personnel in order to remain operational, it l
would be burdensome in the extreme to require so oppressive a file search when so little is to be gained.
. 11.
Document Request No. 7 (c)
Applicants object to this request for documents relating to NERC, ECAR and NAPSIC on the ground that such records have no relevancy to this proceeding.
These national and regional associations are not identified as participants in the Davis-Besse and Perry projects.
No issue has been raised concerning their activity or behavior.
For the City to seek information regarding the formation and activities of these associations aptly serves to demonstrate how far afield the City will go to harass Appli-cants with burdensome discovery and to attempt to prolong the present proceeding.
12.
Document Request No. 8 Applicants object to this request, regarding docu-ments referring or relating to the formation of a holding company, as irrelevant to this proceeding.
The subject matter of this request is not at issue here, and there is no good reason why the city, whose discovery is limited by its pleadings, should now be permitted to gain access to other remote areas of inquiring having no relevancy-to the matters at hand.
This is particularly so where -- as is the case with respect to this request -- any such intrusion would compromise business confidences and jeopardize future business relationships.
In such a case, it is incumbent upon the party seeking to intrude first to demonstrate that he has a legitimate overriding need which justifies granting him the limited discovery he specifies.
13.
Document Request No. 9 Applicants raise a limited objection to this request for CAPCO organization and operation agreements, as amended.
Applicants have no difficulty with producing such of those agree-ments as have been executed, but to require also that Applicants turn over those unexecuted agreements which are "under considera-tion" goes too far.
Agreements in the preparatory stages are constantly undergoing revision and alteration.
These preliminary drafts become totally inconsequential once the agreement is finalized and executed.
Many times the working drafts are disregarded; almost always they are incomplete.
To require the production of such materials serves no useful purpose.
Until executed, draft agreements which are still "under consideration" are of little substantive import.
The City will thus have all it needs for purpose of this hearing if it rec'eives the executed agreements.
14.
Document Request No. 10 Applicants raise an objection to this request, but only insofar as it seeks production of "any power pooling arrange-ment under consideration."
Such a request for contracts and agreements which are not yet executed but are still under active consideration is objectionable for the reasons already ptated in response to Document Request No. 9, paragraph 13 supra.
15.
Document Request No. 11 Applicants object to this request for, among other things, a description of the economic condition of the area served l
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by Applicants, and projections of future economic conditions, as being but another example of the City's seemingly endless quest for every scrap of paper in the files of Applicants that it can obtain, without regard to the relevance of the information sought.
It is apparent on its face that Applicants' projections of future economic conditions, or its evaluations of "other potential stimuli of economic growth of the area" served by each of the Applicants, is not being sought for any useful purpose it might serve in the present proceeding.
The City cannot have any legitimate interest in such information with regard to the remote service areas of the respective Applicants.
There is thus no sound reason to put Applicants to the task of searching their files for any such documents.
16.
Document Request No. 12, Applicants object to this request on the grounds that (i) such documents requested are not properly designated or described with reasonable particularity, and (ii) compliance with the request would be unduly burdensome in view of the remoteness of the requested material to the subject matter of the proceeding.
The City seeks all documents relating.to (a) interconnection' plans, proposals or agreements with other electric utilities, and (b) ex-l l~
pansion of or additions to generating capacity or transmission j
j systems'to be sole'y or jointly owned by any of the Applicants.
In view of the definition of the term " document,"
this request would require production of all relay setting l
calculations; hundreds of relay test sheets; prints or drawings of relay scheme of substations; design drawings of wiring schemes; purchase request for relays; manufacturers' drawings relating to equipment; circuit breaker analysis reports; hundreds of test reports of all types of transformers and circuit breakers; hundreds of right of way surveys; hundreds of right of way pro-posals to purchase; test reports on equipment such as transformers and circuit breakers; right of way purchase contracts covering hundreds of miles of transmission lines; condemnation proceeding documents, embracing applications for condemnation, definitive land descriptions, reports of right of way agents with reference to value and condition of land; reports of appraisers; reports of commissioners; court orders; appraisals; purchase contracts; correspondence, agreements, checks and other documents relating to transactions between Applicants and numerous counties and/or the States of Ohio or Pennsylvania relating to the relocation of roads and other public ways in connection with the development of sites for purposes of construction, operation and maintenance of nuclear generating plants; correspondence with or reports of investigations relating to relatives or next of kin of deceased persons interred on proposed construction sites or right of way; contracts with undertakers, and various other documents relating to the removal of decomposed bodies located in areas to be utilized for said construction projects; all types of test reports on plant construction such as for suitability of ground; concrete
- tests, soil tests, contracts with the States of Ohio or Pennsylvania for geological surveys, checking faults; contracts, correspondence and reports relating to the employment of geologists and other consultants with reference to investigation and report of the seismic conditions and other geological aspects of large segments of the States of Ohio or Pennsylvania, including geological maps and aerial photographs, in connection with the selection and determination of sites for nuclear generating plants; all manu-facturers' instruction books for operation of generating units, including instrumentation manuals, all of which would embrace hundreds of thousands of pages, such as spare parts manuals and manuals as to use of each part of the equipment; invoices, journals, and ledgers relating to the initiation and maintenance of plant accounts covering all items of plant equipment involved in the construction of generating plants and transmission lines, which would embrace hundreds of thousands, if not millions, of pages of documents; employment files, consisting of employment appli-cations, performance reports, documents relating to discipline, transfer, promotion and changes in rates of pay of hundreds of employees involved in the construction activities of Applicants in connection with the construction of transmission lines and generating plants, together with payroll records, records and documents relating to pension plans, hospital insurance plans, major medical insurance plans, jury service performance and various other matters concerning employees employed by Applicants i
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in connection with its transmission and generating plant t
construction; copies of contracts with right of way clearing con-tractors, together with copies of checks, correspondence and other related documents with respect to the clearance of hundreds of miles of transmission line rights of way in various parts of the States of Ohio or Pennsylvania; correspondence, contracts, inspection reports, insurance coverage, work schedules and various other documents relating to construction activities per-formed by independent contractors in the construction of the generating plants of Applicants; documents embracing thousands of pages, containing specifications relating to the purchase of transformers, circuit breakers, switch gear, switches, conductors, insulators, towers, and other facilities necessary in the con-struction of transmission line and substation facilities.
The above is just a partial listing of the millions of documents which could be required under the request as written.
It is not dissimilar from other listirgs, equally extensive, that could be made with respect to the other requests objected to by Applicants on the ground that they were phrased too broadly.
The City apparently has chosen to take such a broad-brush approach in an effort to use the discovery process in this proceeding as a vehicle for engaging in an extended fishing expedition which will inevitably prolong discovery and unduly delay the proceeding.
It has, for the most part, ignored the commission's admonitions in Section 2.741(a) and (c) to request only " designated documents" and identify the item or category of document requested with reasonable particularity.
. One of the basic measurements to determine preciseness of a request for production of documents under Rule 34, Federal Rules of Civil Procedure -- the judicial counterpart to the admin-istrative discovery procedures involved here -- is whether a reasonable man would know what documents and things are called for.
4A Morre's Federal Practice, Par. 34.07, at p. 34-57 (1972).
Document Request No. 12 gives Applicants absolutely no definitional guidance within which to attempt to comply except in a broad, general manner.
So expansive a request can only lead to confusion and frustration in searching for documents arguable within its scope.
It imposes an intolerable burden both in terms of con-ducting an adequate file search for purpose of compliance and in terms of ascertaining what material must be produced.
No litigant should be put to the time and expense of undertaking such an onerous task where it is as clear as it is here that L.e 2nd result cannot possible serve the legitimate purposes which pretrial dis-4 covery is designed to accomplish.
17.
Document Request No. 13 Applicants object to this request as another example of the City's effort to set forth on a prohibited fishing expedition.
The City here senks production of rll minutes of meetings and repo.rts of each committee established under pooling l
or coordination agreements to which Applicants are parties, those of each subcommittee or task force thereof, and documents relating thereto prepared or circulated within the companies.
The request
, l totally abandons any attempt to relate the documents requested to the issues in this proceeding.
In asking for all documents relating to minutes of meetings of a group without designating or relating the request to matters thought to be contained in such minutes, the request is prima facie overly broad.
It provides no j
basis for determination of whether it is related to the subject matter of the proceeding.
18.
Document Request No. 14(a)
Applicants object to this request which seeks all documents relating to studies of joint ownership or other parti-cipation considered, proposed or agreed upon between any of the j
Applicants and other electric utilities'with respect to nuclear, fossil-fuel or hydroelectric generating facilities and transmission facilities.
Like Document Request No. 12, discussed in paragraph 16 above, this request lacks designation of the documents sought with the reasonable particularity required by 10 C.F.R. 52.741(a) and (c), and literal compliance would be burdensome and vexatious I
in view of the lack of probative value of the documents which Appli-cants would be required to produce.
As written, Document Request No. 14(a) would require production of material similar to that described in paragraph 16, supra, with regard to Document Request No. 12, since it encompasses all material such as contracts for l
l facilities, site surveys, condemnation proceedings, etc., " relating to" studies of joint ownership or other participation between any of.the Applicants and other electric utilities or generating or transmission facilities.
/
19.
Document Request No. 14 (b)
Applicants object to this request, which asks for all documents relating to presen and future planned intercon-nections with other utilities.
To furnish all of the minutiae required by this request would be extremely burdensome and vexatious; certainly such documents have no possible relevance to the issues in this proceeding.
Applicants presently maintain a large number of interconnections with other utilities.
Each of the transmission lines associated with such interconnections involves various types of activity, including right of way clearance, right of way inspec-tion, line maintenance, replacement and modification; and involves relay settings and other electric operation controls.
All of such activity, including the payment for services of employees involved in such activities, is reflected in numerous documents, including payrolls and checks for labor performed in connection with such interconnection facilities; contracts for aerial inspection of such facilities and reports of such inspections; contracts for right of way clearance and reports of right of way clearance; l
work orders for construction and maintenance of facilities; and l
various other documents, as described in more detail in the discussion in paragraph 16, supra relating to Document Request l
l No. 12.
l Document Request No.14 (b) would require the pro-duction of all of this material.
In addition, Applicants would have to furnish under this request such records as daily log sheets relating to such tie lines, which would embrace hourly entries showing kilowatt-hour flows and status of switching faci-lities and would include delemetering and other charts produced on a continuous basis involving charted documents extending more than 72 inches per day per tie line and which, in the aggregate for the period covered by this request, would embrace charts extending many, many miles.
A requirement for production of such documents should not be ordered where the material sought is not likely to have any probative value with respect to the issues in the proceeding.
20.
Document Request No. 14(c)
Applicants object to this request, seeking docu-ments relating to studies or analyses of full generator and/or transmission integration or coordination between the respective Applicants and any other electric utility, on the principal ground that the requent 's unintelligible, ambiguous, incomprehensible, and puts Applicants to the burden of undertaking an interpretation without adequate guidance.
If interpreted broadly, as we suspect the City intends, the request would require furnishing many of the irrelevant documents listed in paragraph 16, supra, with regard to Document No. 12.
21.
Document Requires No. 14 (d)
Applicants object to this request for all documents relating to its line extension policy as being far too broad in scope and wholly unrelated to the matters in dispute.
Such ob-jection is similar to that stated in paragraph 16, supra, with respect to Document Request No. 12.
Even if the present request were narrowly interpreted, it would require each Applicant to produce all documents relating to the initiation of service to any customer since January 1, 1964, which service necessarily required some extension of the respective Applicants' line facilities.
Each Applicant has added thousands of customers since that date.
Production of all documents relating to the accompanying line extension in each case would be burdensome, vexatious and not calculated to produce evidence remotely related to the subject matter of this proceedings.
22.
Document Request No. 14(e)
Applicants object to this request which seeks pro-duction of all documents relating to reliability data for each generating unit, including forced and planned outages, number of hours of down-time, number of outages, nature of forced outage rate and calculations thereof, and number of hours operated during the past year.
The information sorght here has no bearing on the issues in this proceeding.
Unlike MELP, whose status as a
" viable competitor" in the City of Cleveland is called into ques-tion, no iscue has been raised by the city as to the reliability of any of Applicants' existing generating plants.
The detailed data which is the subject of this request plainly contributes neither to ascertaining the structure of the relevant market, I
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3 -
t f
nor to determining whether installation of the subject nuclear plants will maintain or create a situation inconsistent with the antitrust lawn.
Thus, Applicants should not be required to pro-duce this information.
Moreover, the request, as written, is without reasonable particularity and compliance would be unduly burden-some.
Literally construed, the City seeks production of all the daily log sheets for each of the generating units of the respec-tive Applicants for the period in question; all schedules which i
have been prepared for maintenance of each unit and all corres-pondence, memoranda, reports and other " documents" between any Applicant and equipment manufacturers, manufacturers' represen-i j
tatives, consultants and others (including pleadings in civil i
actions where disputes have-arisen), concerning reasons for i
outages and solutions to such problems.
Such request is not even i
limited to production of documents relating to Applicants' gene-rating units but would encompass any report, article or corres-pondence in Applicants' respective files which relate to the outage of any generating unit in the world.
23.
Document Request No. 14 (f)
Applicants object to this request for all documents relating to " reliability data of transmission. lines, including 1
i outages per 100 mile per year for each of the various voltage I
classification of lines, reason for outages and maximum single i
occurrence-outage time, in hourn, during the past year."
Such i
(
i
request is unduly broad.
It is not limited to documents relating to Applicants' transmission lines, but, even if it were, the l
request is objectionable in its present form.
Applicants' operate and maintain hundreds of miles of transmission lines of various voltage classifications.
Such lines during the course of a year are subjected to outages from various causes, including storms, lightning, sleet, snow, automobile collisions, and activities of animals, such as squirrels.
To undertake to develop the documen-tation relating to all of such outages is unreasonable and calcu-lated to have no probative value on any of the issues in this proceeding.
If it were relevant, Applicants would be willing to furnish a summary analysis of the major activities occurring during the course of a year affecting the substantial reliability of their respective transmission lines.
24.
Document Request No. 14 (g)
Applicants object to this request for all documents relating to the outage time in 1973 per customer per year in each of Applicants' respective districts and the number of outages per customer per year.
The grounds for this objection are similar to those stated above with regard to other requests by the City.
Documents which would be required to be produced under this request would include, for example, all notations of telephone calls from each Applicants' customers reporting outages, reports of Appli-cants' personnel checking such outages, reports of actio<. taken including time of outages.
To collect such information from the many offices maintained by each Applicant across the States of
. Ohio and Pennsylvania and produce all such documents would be burdensome in the extreme.
Applicants can conceive of no purpose to be served by such production which would relate to the issues of this proceeding.1/
25.
Document Request No. 14 (h)
Applicants object to this request, which seeks all j
documents relating to financing, (1) method and mix, (2) cost of capital, (3) cost of existing capital, (4) terms and conditions i
associated with capital, (i) restricted funds and payments thereto, (ii) interest and debt service coverage, (iii) accumulative nature of pre'ferred dividends, and (5) schedules of projected payments on debt, (6) plans for future financing through December 31, 1969.
As is apparent on its face, this request lacks reasonable particu-larity; it is <t.alogous to the request for " financial records"
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ruled improper by the court in Richland Wholesale Liquors, Inc. v.
Joseph E.
Seagram & Sons, Inc., 40 F.R.D.
480 (D.S.C. 1966).
obviously, a massive file search, followed by production of documents potentially swept within so broad a request, would impose an intolerable burden on Applicants; under no circumstances should such a result be countenanced by this Licensing Board.
This is particularly so in view of the fact j
that Applicants are all publicly held corporations, and have each revealed in prospectuses on file with the Securities and Exchange l
1/ With respect to the offer to accept a " verified summary of such information," it should be noted that to " verify".any summary which Applicants might have in their possession, custody or control would require the expenditure of many hours by Applicants' personnel to collect all relevant documents, and analyze and compile the results.
l i i
Commission all the financial information that they are required 1
to make known to the public.
That information is readily avail-able to the City; it is not entitled to anything more.
Its efforts here to explore financial material outside the jurisdiction of the SEC is a classic example of the sort of fishing excursion prohi-bited by 10 C.F.R. Part 2, App. A, VI (a).
26.
Document Request No. 15.
Applicants object to this request, for names of all engineers retained by each Applicant for any conceivable pur-pose, as being overbroad.
The City does not indicate any time frame for its request; it does not place any reasonable limitation on the purpose for which said engineers might have been employed; nor does it state what areas of engineering expertise are relevant.
Such an open invitation to supply names of individuals obviously unsuited for the presumed purpose of the request requires no re-sponse.
It is incumbent on the City first to limit its inquiry to a defined category having some meaningful relationship to the relevant issues.
27.
Document Request No. 19 Applicants object to this request, for such yearly peak flow diagrams through 1985 as may be studied by any power planning or operating groups in which any of the Applicants par-ticipates, to the extent it seeks to require a file search for such diagrams by groups other than CAPCO.
The activities of such other power planning or operating groups in which Applicants might T
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' participate have no relevance whatsoever to this proceeding and Applicants should not be burdened with a file search to ascertain whether or not they have requested material generated by these unrelated groups.
As for such yearly peak flow diagrams through 1985 studied by CAPCO, Applicants will undertake to determine if any such document is in their files.
28.
Document Recuest No. 21 Applicants object to this request for, among other things, internal documents describing each Applicants' bulk power control center.
This request, even if given a limited interpre-tation, could require furnishing numerous reports of studies made by manufacturers as well as consulting engineers relating to the design and installation of electronic equipment and other faci-lities to be utilized in the carrying out of the economic dispatch function and in determining reliable electric system operations.
The documents relating to such matters consist of thousands of separate pieces of paper, many of which could have no relevance to the subject matter of this proceeding, such as electronic circuit diagrams for computers and telemetering equipment, wiring print of each remote at each substation, and wiring diagram of each remote at each generating unit, wiring diagram of each remote at each tie line or interchange point.
All of such docu-ments would have to be housed in several filing cabinets.
Applicants further object to the furnishing of such documents on'the ground that much of the information sought i
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w
. is proprietary to parties who have supplied the subject matter to Applicants, and Applicants are contractually bound not to reveal such information without prior approval of the suppliers.
Further-more, many of the documents which would be required under this request are deemed confidential by Applicants to assure security and reliability of system operation and to prevent any act of sabotage.
Disclosure of such material in a public proceeding would, violate the integrity of their respective systems.
29.
Document Request No. 24 Applicants object to this request in its entirety on the same grounds stated in paragraph 16, supra, with regard to Document Request No. 12.
This request seeks all " documents con-taining or pertaining to" capital and operation and maintenance cost estimating factors used by each Applicant for a number of categories of facilities, operating costs and other costs.
Appli-cants could never be certain that it had complied with this request since it would require production of all manufacture catalogues in each Applicants' possession, invoices of past purchases on which the future costs are estimated, land appraisals for trans-mission line rights of way, labor contracts and numerous other l
tools used in attempting to estimate costs.
All of such documents l
l pertain to cost estimating factors utilized by Applicants.
Applicants further object to furnishing such docu-ments on the basis that the request seeks confidential business records of the Applicants, and such disclosure would compromise
each Applicant's relationship with its respective " competitors" as well as with third parties with whom it must deal.
To reveal all documents used by Applicants in establishing escalation fac-tors for labor, fuel, generating equipment, and the other matters requested would seriously jeopardize future procurements by Applicants and negotiations with others in these areas.
Appli-cants submit that their separate projections of such cost i.ncreases due to escalation are thus not a proper subject for inquiry in request for production of documents.
30.
Document Request No. 26(a)
Applicants object to this request for all documents regarding cost studies of nuclear vs. fossil-fueled generation on the ground it is totally devoid of any reference to relate the
. documents requested to the issues in this proceeding and thus must be viewed, once again, as an attempt by the City to engage in a fishing expedition at Applicants' expense.
While Applicants could furnish the cost studies themselves, this request would require production of a voluminous amount of material which lies behind the cost studies made by Applicants in this area, all of which are remote and irrelevant to the issues under review.
Moreover, some of this backup material relates to fuel supply information of a highly confidential nature, and no legitimate reason has been articulated for invading those business confidences.
31.
Document Request No. 26(b) l Applicants object to this request, which seeks i
production of documents relating.to " planning studies" rade in l
o the period 1960 to date, alone or jointly with other utilities.
The category of items requested is not designated with any reason-able particularity and would include all studies made by an Appli-cant which related to any imaginable subject, such as merchandise sales programs, personnel policies, plans for operation and main-tenance during nuclear attack by an enemy of the United States or other potential disasters, and any of thousands of other planning functions required in operation of an electric utility.
A request framed in such sweeping terms cannot be designed to produce materials of any relevance to this proceeding.
Even when construed narrowly, it is difficult to perceive how any " planning studies" undertaken by Duquesne Light Company, for example, which is located in Pennsylvania, can bear on the matters raised here by the City of Cleveland.
Unless the City can demonstrate relevancy with regard to this request, discovery should not be allowed.
32.
Document Request No. 26(c)
Applicants object to this request, which seeks documents regarding transmission load flow studies made in the period 1960 to date which have been used in planning, for the reasons stated in paragraph 16, supra, with regard to Document Request No. 12.
The backup materials used in formulating such transmission load flow studies are swept into the request.
It would thus constitute an extreme burden on Applicants to attempt to comply with Document Request No. 26 (c), with no feasible l
l benefit to be gained therefrom upon production of the documents l
requested.
33.
Document Request No. 26(d)
Applicants object to this request for the same basic reasons articulated above as to other objectionable requests.
Here the City seeks all documents regarding discussions with other uti-lities relating to allocation of responsibility for the location and the time of transmission construction.
The request is patently burdensome in view of the limited potential for relevance of any of the documents related thereto.
To furnish, with respect to each constructed transmission line, documents relating to Appli-cants' discussions with other utilities relevant to some aspect of said construction would be a physical impossibility.
Nor is such an exercise calculated to be relevant to any contentions raised by the City in this proceeding, especially where all the referenced discussions concern transmission lines of Applicants -- which are located in distant service areas not served by the City.
34.
Document Request No. 27 Applicants. object to this request, which seeks
" documents showing" the following with respect to each existing generating unit on Applicants' respective systens, and estimates thereof with respect to each unit under construction or planned, and thereafter lists a number of requests which are in the nature of interrogatories.
It is inconceivable that the detailed infor-mation sought as to operating statistics and costs of each unit owned and operated by the respective Applicants over the past ten years can shed any light on the issues in this proceeding.
To
. require the production of such material, including such irrelevant I
matter as insurance rates and number of employees, wage rates, fringe benefits, etc., and methods of design and operation of nuclear units, would require a document search of innumerable files.
For the reasons stated in paragraph 16, supra, with regard to Document Request No. 12, Applicants should not be ordered to assume such an unfair burden with so little benefit to be derived therefrom.
As we have stated repeatedly, the City is not in direct j
competition with these Applicants, and it has suggested no reason why, in the context of this proceeding, it should be given access to documents relating to the detailed operations of there Appli-cants' existing generating units.
Applicants further object to this request on the ground that many of the documents sought under it, especially in subparagraphs (p) and (q), are proprietary to the suppliers of Epplicants.
Applicants are contractually bound not to reveal such information without the prior approval of such suppliers.
35.
Document Request No. 28 Applicants object to this request, which seeks production of documents showing all actual or proposed power pur-chases and sales for the period 1970-1985, indicating mw and mwh quantities and fixed and variable charges for each such transaction.
Even a limited construction of this request appears to require Applicants to produce all documents relating to any sale of power, including, among other things, every contract for sale of power to i-
customers at both wholesale and retail.
Applicants submit that the request as written is not reasonably particularized; it clearly is overly burdensome and vexatious in view of the irrelevancy of i
the material to the subject matter of this proceeding.
36.
Document Request No. 29 Applicants object to this request, for all cost of service studies relating to wheeling or transmission service on Applicants' respective systems for specified periods, as falling wholly outside the scope of this proceeding and therefore being an impermissible line of inquiry for the City to pursue.
The issue of wheeling, in the generic sense of that term, is simply not in this case.
Certainly, it has not been raised in the City's petition to intervene, and thus is not open to the City as a permissible area for pretrial discovery.
At most, the wheeling concept has been interjected into these proceedings in a very limited sense, and that was by American Municipal Power-Ohio, Inc.
(" AMP-Ohio"), not by the City.
The Licensing Board has made it clear that AMP-Ohio is entitled to discovery, if it choses (and apparently it does not), on the limited question of wheeling 30 mw of PASNY power from New York to the City of Cleveland.
The door has not thereby been opened, 4
however, on the much broader issue of wheeling generally.
Nowhere in the pleadings in this case has that question been raised, either by the Justice Department, the AEC Staff, or the Inter-venors.
Accordingly, the subject of wheeling generally is not within the bounds of permissible discovery, and Document Request No. 29 warrants no response.
. 37.
Document Request No. 39 Applicants object to this request for documents relating to the proposed Yankee-Dixie generation and transmission system as being wholly irrelevant to any aspect of the present proceeding.
We are here concerned with Davis-Besse Unit 1 and Perry Units 1 and.2.
It serves no legitimate purpose to permit the City to use the discovery process available in connection with the Commission's antitrust review associated with those three nuclear facilities in order to explore,ther areas of inquiry regarding proposals for systems not now under consideration.
38.
In conclusion, Applicants state that they obviously have not had an opportunity to make even a perfunctory examination of their files to ascertain which documents therein are subject to production under the City's Interrogatories.
It is likely that some individual documents within the broad categories requested are entitled to protection from discovery on the ground that they contain matter of a privileged and confidential nature which is legally protected from disclosure.
Applicants reserve the right to assert the appropriate claim of privilege as to specific documents which are entitled to such legal protection as those documents are found in the course of Applicants' respective l
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. file searches, and the foregoing general objections to the City's Inte.rrogatories are not intended, and should not be construed, as a waiver of such right.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
' 'd
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,s By Nm. Bradford Reynolds Gerald Charnoff Counsel for Applicants Dated:
September 9, 1974.
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE TOLEDO EDISON COMPANY and
)
THE CLEVELAND ELECTRIC ILLUMINATING
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COMPANY
)
(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-346A Unit 1)
)
50-440A
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50-441A THE CLEVELAND ELECTRIC ILLUMINATING
)
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing
" Objections to the Interrogatories and Document Requests of the Toledo Edison Company, Pennsylvania Power Company, Ohio Edison Company and Duquesne Light Company" were served upon each of the persons listed on the attached Service List by U.S. Mail, postage prepaid, on this 9th day of September, 1974.
SHAW, PITTMAN, POTTS & TROWBRIDGE By:
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'o Wm. Bradford Reynolds Counsel for Applicants Dated:
September 9, 1974.
UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION "In the Matter of
)
)
THE TOLEDO EDISON COMPANY and )
THE CLEVELAND ELECTRIC
)
ILLUMINATING COMPld1Y
)
)
(Davis-Besse Nuclear Power
)
Docket Nos. 50-346A Station, Unit 1)
)
'50-440A
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50-441A THE CLEVELAND ELECTRIC
)
ILLUMINATING COMPANY
)
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
SERVICE LIST John B.
Farmakides, Esq.
Mr. Chase R.
Stephens Chairman Docketing & Service Section Atomic Safety and Licensing Board U. S. Atomic Energy Commission U. S. Atomic Energy Commission 1717 H Street, NW Washington, D. C.
20545 Washington, D. C. 20545 John H. Brebbia, Esq.
Benjamin H. Vogler, Esq.
Atomic Safety and Licensing Board Office of General Counsel Alston, Miller & Gaines Regulation 1776 K Street, N. W.
U. S. Atomic Energy Commission Washington, D. C.
20006 Washington, D. C.
20545 Dr. George R. Hall Robert J. Verdisco, Esq.
Atomic Safety and Licensing Board Office of General-Counsel i
U. S. Atomic Energy Commission Regulation Washington, D. C.
20545 U. S. Atomic Energy Commission Washington, D. C.
2054'5 Atomic Safety and Licensing Board Panel Andrew F. Popper, Esq.
U. S. Atomic Energy Commission Office of General Counsel Washington, D. C.
20545 Regulation U. S. Atomic Energy Commission Washington, D. C.
20545 l
l i
Joseph J.
Saunders, Esq.
John R.
White, Esq.
Steven Charno, Esq.
Executive Vice President Antitrust Division Ohio Edison Company Department of Justice 45 North Main Street Washington, D. C.
20530 Akron, Ohio 44308 Reuben Goldberg, Esq.
Thomas J. Munsch, Esq.
David C.
Hjelmfelt, Esq.
General Attorney 1700 Pennsylvania Avenue, N. W.
Duquesne Light Company Washington, D. C.
20006 435 Sixth Avenue Pittsburgh, Pennsylvania 15219 Frank R. Clokey, Esq.
Special Assistant John Lansdale, Esq.
Attorney General Cox, Langford & Brown Room 219 21 Dupont Circle, N. W.
Towne House Apartments Washington, D. C.
20036 Harrisburg, Pe nsylvania 17105 Wallace L. Duncan, Esq.
Mr. Raymond Kudukis Jon T.
Brown, Esq.
Director of Utilities Duncan, Brown & Palmer City of Cleveland 1700 Pennsylvania Avenue, N. W.
1201 Lakeside Avenue Washington, D. C.
20006 Cleveland, Ohio 44114 C. Raymond Marvin, Esq.
Herbert R. Whiting, Director Assistant Attorney General Robert D. Hart, Esq.
Chief, Antitrust Section Department of Law 8 East Long Street 1201 Lakeside Avenue Columbus, Ohio 43215 Claveland, Ohio 44114 Deborah M. Powell, Esq.
John C. Engle, President
. Assistant Attorney General AMP-O, Inc.
Antitrust Section Municipal Building 8 East Long Street 20 High Street Saite 510 Hamilton, Ohio 45012 Columbus, Ohio 43215 Donald H. Hauser, Esq.
Christopher R. Schraff, Esq.
Managing Attorney Assistant Attorney General The* Cleveland Electric Environmental Law Section Illuminating Company' Eighth Floor 55 Publle Square 361 East Broad Street Cleveland, Ohio 44101 Columbus, Ohio 43215 Leslic Henry, Esq.
Fuller, Henry, Hodge.& Snyder 300 Madison Avenue Toledo, Ohio 43604 e
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