ML19211A128
| ML19211A128 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak  |
| Issue date: | 11/29/1979 |
| From: | Cyphert S, Parmenter F JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7912170068 | |
| Download: ML19211A128 (15) | |
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\ UNITED STATES OF AMERICA J
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i NUCLEAR REGULATORY COMMISSION i : $bgy 7y
% 0 Before The Atomic Safety and Licensing Board 3-
% c:n' 4, In the Matter of ) '
HOUSTON LIGHTING AND POWER )
COMPANY, et al . (South ) Docket Nos. 50-498A Texas Project, Units 1 and 2)) 50-499A
)
TEXAS UTILITIES GENERATING )
COMPANY (Comanche Peak ) Docket Nos. 50-445A Steam Electric Station, ) 50-446A Units 1 and ,2) )
MOTION OF THE DEPARTMENT OF JUSTICE FOR MODIFICATION OF THE JULY 24, 1979 ORDER OF THE ATOMIC SAFETY AND LI. CENSING BOARD AND APPLICATION FOR ISSUANCE OF SUBPOENAS Pursuant to the July 24, 1979, Order of the Atomic Safety ,
and Licensing Board (" Board") the Department of Justice sub-mits this Motion for Modification and Ap' plication for Issuance of Subpoenas.
I.
INTRODUCTION On July 24, 1979, the Board issued an Order extending the discovery schedule in this matter to December 31, 1979.
This Order reflected notices for depositions issued by the Department and Nuclear Regulatory Commission Staf f ("NRC Sta f f") . 1/ During this period, the Department dnd the NRC Staff, as well as all, of the other parties to this proceeding, have taken advantage of the additional time to pursue discovery.
The extensive deposition discovery and document production 1596 121 1/ Joint Motion by the Department of Justice and the Nuclear Regulatory Commission Staf f for Partial Reconsideration of the Board's Order of June 25, 1979 and the Application for Issuance of Subpoenas.
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, accomplished since the Board's Order in July has been reflected in the Monthly Reports. Depositions have been conducted on almost every work day since July and in many instances, deposi-tions were conducted simultaneously in more than on,e city.
Despite the hard work and diligence of all parties to complete discovery by December 31, 1979, a limited amount of important work remains to be done. Thus the Department respectfully requests the B,oard modify the Order of July 24, 1979, by ex-tending the cutoff for discovery to February 29, 1980, and that the Board issue the attached subpoenas itemized in Appendix B to this Motion.
II. ,
REASONS IN SUPPORT OF MODIFICATION OF JULY 24, 1979 ORDER A. Depositions Remain to be Completed At least eight individuals, who were noticed for deposi-tion prior to December, have not been deposed and must be fit into the existing schedule, 1/ which presently has only six open days. 2/ The following list shows the names and positions of the remaining . potential witnesses, where the witness was to be deposed and the reason why the depositions were not completed when originally noticed.
1/ Attached hereto is Exhibit A representing the existing depo-sition commitments for the remaining month of December, without these eight reschedules.
2/ December 3, 7, 24, 26, 28, 31, 1979. These dates, however, are currently being used to try to reschedule or complete the witnesses listed on page 3 of this Motion.
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REASON WITNESS HAS NOT NAME AND PLACE TO BEEN DEPOSED OR POSITION BE DEPOSED DEPOSITION NOT COMPLETED
- 1) T. Sweatman, Austin, Texas Postponed from July 24, Chief Engineer 1979, by agreement of Texas Public counsel until other Utilities engineers' depositions Commission were completed and docu-ments examined.
- 2) A. Gerber, Washington, D.C. All of Gerber's documents Houston Light- or have not yet been provided ing & Power Palm Beach, Fla. to counsel. 1/ Counsel
("HL&P") Expert are currently negotiating Economist. Nati)nal this matter. Deposition Economic Researct. may be rescheduled on De-Associates - cember 18, 1979.
- 3) J. M..Pennebaker, Dallas, Texas Postponed from Manager, Market- November 15, 1979, by ing & Cus.tomer agreement of counsel.
Services of Department may not need Texas Electric to depose Pennebaker, '
j Service Company pending information from .
("TESCO.") Taylor's deposition.(infra)
- 4) W. M. Taylor, Dallas, Texas Deposition not completed Vice-President on November 16, 1979.
of TESCO Power- Agreement of counsel to Engineering- reschedule as soon as Purchasing & possible in December.
Services
- 5) E. D. Scarth, Dallas, Texas Postponed from August 29, Vice-President, 1979, by agreement of Operations of counsel pending completion TESCO & Texas of Scarth's examination Utilities Generating at Securities & Exchange Company's ("TUGCO") Commission Hearing and expert economic because of personal and engineering family illness. Scarth witness finished testifying at SEC on November 13. Coun-sel is seeking a date in December.
1/ See Letter from Roy P. Lessy, Jr., Counsel for NRC Staff to J. A. Bouknight, Counsel for HL&P dated November 9, 1979.
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REASON WITNESS HAS.NOT NAME AND PLACE TO BEEN DEPOSED OR POSITION BE DEPOSED DEPOSITION NOT COMPLETED 1 6) J. F. Meyer, Houston, Texas Continued from Supervising September 13, 1979, by Engineer, HL&P agreement of counsel due to death in witness' immediate family.
- 7) H. Woodson, Austin, Texas Woodson's documents were HL&P expert not made made available witness
- to Department for inspection in Austin, Texas until November 20, 1979. NRC s ta f f has not yet reviewed these documents. NRC Staff has decided to postpone Woodson's deposition, scheduled
- for November 27, 1979, until NRC can review the documents. 1/
- 8) D. D. Jordan, Houston, Texas Not available on da tt no-President and ticed, Decem'ber 27, 1979.
CEO of HL&P Counsel are trying to reschedule.
In addition to these pre-existing depositions, the l'
Department has also recently agreed to join with Central and South West Corporation in noticing the depositions of four offi-cers of Texas Utilities Company, (Messrs. Austin, Brittian, Hulsey i
and Spence) for the third week of December, if arrangements can be ma d e . These deposition will probably take place in Dallas.
l 1/ See Letter from Michael B. Blume, Counsel for NRC Staf f to 1 J. Gregory Copeland, Counsel for HL&P, da ted November 19, 1979.
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s B. New Potential Witnesses Have Been Revealed Since the Board's Order, the Department has determined, through its investigation and discovery, the names of twenty-two additional individuals who may be called to testify in these proceedings. These names were recently provided to' Applicants. 1/
Although some of these individuals have already been deposed by one or more of the parties, others have not yet been deposed.
Applicants may wish to depose these remaining individuals before tr ial . Under the present schedule, additional depositions can-not be held prior to December 31, 1979.
C. A Limited Number of Potential Witnesses Remain to Be Noticed Several officers and employees of Applicants, and other individuals also remain to be deposed. The depositions of these witnesses will relate to specific facts critical to these proceedings. The Department was unaware that these individuals had relevant .information until the recent discovery phase was completed. The Department has set forth the names and positions of these additional deponents in Appendix B,
~ attached herewith. The Department is filing herewith Appli-cations to Notice these individuals for deposition testimony. 2/
1/ Third Supplemental Response of the Department of Justice to ,
'the Second Set of Interrogator ies and Requests for Production 01 Documents from Houston Lighting & Power Company to Antitrust Division, U.S. Dept. of Justice, filed on November 27, 1979.
I 2/ The Department also anticipates applying These for thesubpoena production duces l of documents from some of these witnesses.
' tecum applications will be submitted to the Board af ter i t ha s i ruled on this Motion.
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\ t D. Discovery of Expert Witnesses Cannot Be Completed by 4 December 31, 1979 -
Completion of the discovery of the expert witnesses cannot be accomplished by December 31, 1979. The Department's expert economist, Dr. Gordon Taylor, was deposed for two da'ys on Oc-tober 25-26, 1979, but Counsel for HL&P and TUGCO were unable to complete their line of questioning. Counsel for the Appli-cants have requested that Dr. Taylor 's deposition be continued at some date af ter he has completed his anal? sis of the ongoing discovery. The Departmen'. does not object to continuing the deposition of Dr. Taylor for one day af ter the close of discovery so long as repetitive questions are not asked, the ,
Depa r tment is allowed reciprocal discovery of HL&P and TUGCO's experts af ter the close of discovery,l/ and adequate time is permitted to include this information in the Depart-ment's trial brief.
E. Houston Lighting & Power Company's Appeal of Board's Order Regarding Collateral Estoppel On November 9, 1979, HL&P petitioned the Atomic Safety and Licensing Appeal Board for Certifi ation and Review of this Board's October 9, 1979 Order Denying Motions for Summary Decision based on the doctrine of collateral estoppel.
On November 13, 1979, the Appeal Board ordered that responsive briefs on the issues of certification and the merits be filed by December 14, 1979. Obviously, this appeal will require coun-sel to devote their resources and time to a matter not 1/ HL&P's expert witnesses are Messrs. Simmons, Woodson and Gerber. TUGCO's expert witness is Mr. Scarth. ,
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originally contemplated in the Board's Order. This problem is compounded because there is not a suf ficient amount of time to schedule.
complete discovery already committed under the present TII.
- APPLICATION FOR ISSUANCE OF SUBPOENAS In addition to, and in conjunction with, this requested
^
modification of the Order of July 24, 1979, the Department respectfully requests, pur sua nt to C.F.R. S 2.720, that the Board issue the attached subpoenas. itemized in Appendix B to this Motion. The subpoenas listed in Appendix B are for depositions that the Department proposes to take af ter Decem-ber 31, 1979. The subpoenas call for the giving of testimony which is relevant to the issue of competition in the electric utility industry in and af fecting the State of Texas, access to nuclear power plants, other sources of generation and/or transmission, and the issue of inter sta te/ intra sta te opera tion of electric utilities in the State of Texas and surrounding states.
IV.
CONCLUSION The Department wishes to assure the Board that the Depart-ment's Motion for a modification of the Order of July 24, 1979, was filed only af ter the Department determined that the existing schedule could not reasonably accommodate the discovery needs of the parties to this proceeding. The additional discovery requested by the Department is reasonable and should assist the Board in narrowing the issues to be tried in this case.
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For all of the foregoing reasons, the Department requests that the Board modify the Order of July 24, 1979, to reflect:
(1) the outstanding discovery remaining to be completed; (2) the notification of the attached depositions; (3) the continua-tion of the deposition of all expert witnesses 30 days after the close of discovery;and (4) an expeditious and reasonable br iefing schedule and tr ial date. Accordingly, the Department
- requests the O der of July 24, 1979, Le m.odified as follows:
February 29, 1980 - Completion of all discovery, except for 1 day continuation of each expert witness.
March 24 - April 4, - Continuation of depositions of 1980 expert witnesses.
April 14, 1980 - Final prehearing conference, pur sua nt to 10 C.F.R. 52.752, exchange of witness lists, short summaries of testimony and recommenda tions regarding consolida tion , submission of trial briefs.
April 30, 1980 - Evidentiary Hearing i Respectfully submitted,
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/' Susan B. Cypher 1 s hC
_Fre ' rick If. Pa rmenter h
j Attorneys, Energy Section Antitrust Division l U.S. Department of Justice 1 (Telephone: 202-724-6667)
Washington, D. C. . , .
1596 128 November 29, 1979 .n c: >
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UNITED STATES OF AMERICA g
NUCLEAR REGULATORY COliMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
)
HOUSTON LIGHTING AND POWER ) Docket Nos. 50-498A CO., et al. (South Texas ) 50-499A Project, Units 1 and 2) )
)
TEXAS UTILITIES GENERATING ) Cocket Nos. 50-445A COMPANY (Comanche Peak Steam ) 50-446A Electric Station, Units 1 )
and 2) )
) .
CERTIFICATE OF SERVICE I hereby certify that service of the foregoing MOTION OF THE DEPARTMENT OF JUSTICE FOR MODIFICATION OF THE JULY 24, 1979 ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD AND APPLICATION FOR ISSUANCE OF SUBPOENAS has been made on the following parties listed hereto this 30th day of November 1979, by depositing copies thereof in the United States mail, first class, postage prepaid.
Marshall E. Miller, Esquire Atomic Safety and Licenring Cha irma n Appeal Board Panel Atomic Safety & Licensing Board U.S. Nuclear Regulatory Panel Commission U.S. Nuclear Regulatory Wa shington, D. C. 20555 Commission Washington, D. C. 20555 Richard S. Sa lzma n , Esquire U.S. Nuclear Regulatory Michael L. Glaser, Esquire Commission 1150 17th Street, N.W. Washington, D. C. 20555 Washington, D. C. 20036 Jerome E. Sharfman, Esquire Sheldon J. Wolfe, Esquire U.S. Nuclee r Regulatory Atomic Safety & Licensing Board .
Commission Panel Washing ton, D* C. 20555 U.S. Nuclear Regulatory Commission Chase R. Stephens, Secretary Washington, D. C. 20555 Docketing and Service Branch U.S. Nuclear Regulatory Samuel J. Chilk, Secretary Commission Office of the Secretary of the Washington, D. C. 20555 Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 l}gf l2g
Jerome Saltzman Chief, Antitrust and Michael I. Miller, Esquire Indemnity Group David M. Stahl, Esquire U.S. Nuclear Regulatory Thomas G. Ryan, Esquire Commission Ma rtha E. Gibbs, Esquire Washington, D. C. 20555 Isham, Lincoln & Beale One First National Plaza Roff Hardy Chicago, Illinois 60603 Chairman and Chief Executive-Officer Roy P. Lessy, Esquire Central Power and Light Michael Blume, Esquire Company U.S. Nuclear Regulatory P. O. Box 2121 . Commission Corpus Christi, Texas 78403 Washington, D. C. 20555 G. K. Spruce, General Manager Jerry L. Harris, Esquire City Public Service Board City Abtorney,
. P.O. Box 1771* Bichard C. Balough, Esquire San Antonio, Texas 78203 Assistant City Attorney City of Austin Perry G. Brittain P.O. Box 1088 President Austin, Texas 78767 Texas Utilities Generating Company Robert C. McDiarmid,' Esquire 2001 Bryan Tower Robert A. Jablon, Esquire ,
Dallas, Texas 75201 Spiegel and McDiarmid 2600 Virginia Avenue, N.W.
R.L. Hancock, Director Washington, D. C. 20036 City of Austin Electric Utility Depa rtment Dan H. Davidson P. O. Box 1088 City Manager Austin, Texas 78767 City'of Austin P. O. Box 1088 G. W. Oprea, Jr. Austin, Texas 78767 Executive Vice President Houston Lighting & Power Don R. Butler, Esquire Company 1225 Southwest Tower P. O. Box 1700 Austin, Texas 78701 Houston, Texas 77001 Joseph Irion Worsham, Esquire Jon'C. Wood, Esquire Merlyn D. Sampels, Esquire W. Roger Wilson, Esquire Spencer C. Relyea, Esquire Matthews, Nowlin, Macfarlane Worsham, Forsythe & Sampels
& Barrett 2001 Bryan Tower, Suite 2500 1500 Alamo National Building Dallas, Texas 75201 San Antonio, Texas 78205 Joseph Knotts, Esquire Joseph Gallo, Esquire Nicholas S. Reynolds, Esquire Richard D. Cudahy, Esquire Debevoise & Liberma n Robert H. Loeffler, Esquire 1200 17th Street, N.W.
Isham, Lincoln & Beale Washington, D. C. 20036 Suite 701 Was ingt n D C. 2b36 1596 i30
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Douglas F. John, Esquire R. Gordon Gooch, Esquire Akin, Gump, Hauer & Feld John P. Mathis, Esquire 1333 New Hampshire Avenue, N.W. Baker'& Botts suite 400 1701 Pennsylvania Avenue, N.W.
Washington, D. C. 20036 Washington, D. C. 20006 Morgan Hunter, Esquire Robert Lowenstein, Esquire McGinnis, Lochridge & Kilgore J. A. Bouknight, Esquire 5th Floor, Texas State Bank William J. Franklin, Esquire Building Lowenstein, Newman, Reis, 900 Congress Avenue Axelrad & Toll Austin, Texas 78701 1025 Connecticut Avenue, N.W.
Washington, D. C. 20036 Jay M. Galt, Esquire Looney, Nichols, Johnson E. W. Barnett, Esquire
& Hayes Charles G. Thrash, Jr . , Esquire 219 Couch Drive J. Gregory Copeland, Esquire Oklahoma City,, Oklahoma 73101 Theodore F. Weiss, Jr., Esquire Baker & Botts Knoland J. Plucknett 3000 One Shell Plaza Executive Director Houston, Texas 77002 Committee on Power for the Southwest, Inc. Kevin B. Pratt, Esquire 5541 East Skell'y Dr ive Assistant Attorney General Tulsa, Oklahoma 74135 P.O. Box 12548 Capital Station John W. Davidson, Esquire Austin, Texas 78711 Sawtelle, Goode, Davidson *
& Tiollo Freder,ick H. Ritts, Esquire 1100 San Antonio Savings Law Of fices of Northcutt Ely Building Watergate 600 Building San Antonio, Texas 78205 Washington, D.C. 20037 W. S. Robson Donald M. Clements, Esq.
General Manager Gulf States Utilities Company South Texas Electric P.O. Box 2951 Coopera t ive , Inc. Beaumont, Texas 77704 Route 6, Building 102 Victoria Regional Airport Victor ia , Texas 77901 /
gp773 Robert M. Ra de r , Esquire Susan B. Cyphert, Attorney Conner, Moore & Corber Energy Section 1747 Pennsylvania Ave. , N.W. Antitrust Division Washington, D.C. 20006 Department of Justice W.N. Woolsey, Esquire Dyer and Redford 1030 Petroleum Tower Corpus Christi, Texas 78474 1596 131 aW.= - . . _, . =- e
EXHIBIT B . .
J Department Applications to Notice Depositions After December 31, 1979 Place to Name of Deponent Position be Deposed James W. Atkins Manager Beaumont, Texas 1)
Gulf States Utilities
(" Gulf States")
E.B. Barnes General Manager Houston, Texas 2)
Texas Division Dow Chemical Co.
R. Steve Beard Superintendent of Power Fort Worth, Texas 3)
Texas Electric Service Co. ("TESCO")
- 4) Joseph E. Bondurant Executive Vice President Beaumont, Texas for Operations Gulf States Robert Corder Director of Electric Dallas, Texas 5)
Department, City of Garland, Texas Oscar Castillon de la Manager of Area Fort Worth, Texas 6)
Gaza Development Ln Houston Lighting & Power
[f( ("HL&P")
Robert J. Earhart Former Engineer Houston, Texas
-- 7)
( ,a HL&P N
Jack Greenwade Cooperative Planning Houston, Texas 9)
Administrator HL&P
=
Place to '
Name of Deponent Position be Deposed
- 10) George Knowles Utility Director Houston, Texas Diamond Shamrock Corporation
- 11) Norman Lee President Beaumont, Texas Gulf States
- 12) T.R. (Tom) Locke Division Manager Wichita Falls, Texas TESCO
- 13) Henry L. Manning Engineering Manager- Fort Worth, Texas Planning TESCO
- 14) Marty W. Milberg Vice President Houston, Texas Gulf Coast Area Diamond Shamrock Corporation
- 15) James E. Monahan Executive Vice President Waco, Texas and General Manager City of Brazos
- 16) Robert M. McCuistion Vice President for Houston, Texas Engineering HL&P
- 17) George W. Oprea, Jr. Executive Vice President Houston, Texas e HL&P Ln '
yf 18) A.M. Smith Superintendent of Beaumont, Texas Operations
_. Gulf States La LN 19) Aubrey Sprawls Vice President Beaumont, Texas Consumer Services Gulf States
' Place to -
Name of Deponent Position be Deposed '
- 20) Thomas A. Standish Senior Vice President Houston, Texas u HL&P
- 21) Frank Taylor Director of Purchases Houston, Texas Dow Chemical Co.
- 22) Edward A. Turner Vice President Houston, Texas Power Plant Construction HL&P
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EXHIBI*I" A TU/HT.xp une,cn --
ACTIVITY SCHEDULE Cest/Doa notice - DECEMBER 197.9 EUN. MOf; DAY TUE5 DAY """" * "WENNd8Mr" " **
THURSDAY FR: DAY liAT. .
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