ML19259B670

Joint Mqs for Production of Documents & Deposition Issued by ASLB on 790131 on Application by Central Power & Light. Movants,Five Manufacturers Not Parties in Proceedings,Argue Subpoenas Are Too Broad.Certificate of Svc Encl

ML19259B670
Person / Time
Site:	South Texas
Issue date:	02/16/1979
From:	Cohn R, Leidl R BUTLER, BINION, RICE, COOK & KNAPP
To:
References
NUDOCS 7903130522
Download: ML19259B670 (17)

Text

'

UNITED ATE FD M"@ R00lf ,

(v r

/

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD d tgg{ h II.: , FEB1 6 N # I5 '

(\b  :,2,;\ ?: g

D  ; 4 In the Matter of HOUSTON LIGHTING AND POWER COMPANY  :

THE CITY OF SAN ANTONIO  :

THE CITY OF-AUSTIN and  : Docket Nos. 50-498A -

CENTRAL POWER AND  : 50-499A LIGHT COMPANY  : -

~ ~ '

(South Texas Project, Units Nos.  :

1 and 2).  :

JOINT MOTION TO QUASH SUBPOENAS Communications with respect to this document should be addressed to the following:

R. Bruce Whitney, Esq. Jonathan Day, Esq.

Air Products and Chemicals, BUTLER, BINION, RICE, COOK Inc. & KNAPP

'P.O. Box 538 1100 Esperson Buildings Allentown, Penns*rlvai:ia 18105 Houston, Texas 77002 Ross Austin, Esq. Robert.E. Cohn, Esq.

E. I. DuPont de Nemours & Co. Richard J. Leidl, Esq.

Wilmington, Delaware 19898 BUTLER, BINION, RICE, COOK

& KNAPP John Stapleton, Esq. .818 Connecticut Avenue, N.W.

Monsanto Company Washington, D.C. 20006 800 North Lindbergh St. Louis, Missouri 63166 Attorneys for Joint Movants Paul M. King, Esq.

PPG Industries, Inc.

One Gateway Center Pittsburgh, Pennsylvania 15222 Stanley Baumblatt, Esq.

Union Carbide Corporation 270 Park Avenue New York, New York 10017 February 16, 1979 79031305 @

Richard D. Cudahy, Esq. John E. Mathews, Jr., Esq.

Robert H. Loeffler, Esq. Mathews, Osborne, Ehrlich, McNatt Joseph Gallo, Esq. Gobelman & Cobb Isham, Lincoln & Beale 1500 American Heritage Life Bldg.

1050 17th Street, N.W. Jacksonville, Florida 32202 Seventh Floor Washington, DC 20036 Wheatley & Miller Robert E. Bathen 1112 Watergate Office Bldg. R.W. Beck & Associates 2600 Virginia Ave. 'W. P.O. Box 6817 Washington, DC 20037 Orlando, Florida 82853 Linda L. Aaker, Esq.

Assistant Attorney General P.O. Box 12548 Capital Station Austin, TX 78711 Knoland J. Plucknett Executive Director Committee on Power for the Southwest, Inc.

5541 E. Skelly Dr.

Uulsa, Oklahoma 74135 Jay M. Galt, Esq.

Looney, Nichols, Johnson & Hayes 219 Couch Drive Oklahoma City, Oklahoma 73101

}

Marshall E. Millet, Esq. Mr. Jerome D. Saltzman U.S. Nuclear Regulatory Commission Chief, Antitrust and Washington, D.C. 20555 Indemnity Group U.S. Nuclear Regulatory Cocmission Nuclear Reactor Regulation Washington, D.C. 20555 Michael L. Glaser, Esq. J. Irion Worsham, Esq.

1150 17th Street, N.W. Merlyn D. Sampels, Esq.

Washington, D.C. 20036 Spencer C. Relyea, Esq.

Worsham, Forsythe & Sampels 2001 Bryan Tower, Suite 2500 Dallas, TX 75201 Jon C. Wood, Esq.

Sheldon J. Wolfe, Esq. W. Roger Wilson, Esq.

U.S. Nuclear Regulatory Commission Matthews, Nowlin, Macfarlane Washington, D.C. 20555 & Barrett 1500 Alamo National Building San Antonio, TX 78205 Atomic Safety and Licensing Charles G. Thrash, Jr., Esq.

Appeal Board Panel E.W. Barnett, Esq.

U.S. Nuclear Regulatory Commission Theodore F. Weiss, Esq.

Washington, D.C. 20555 J. Gregory Copeland, Esq.

Baker & Botts 3000 One Shell Plaza Houston, TX 77002 RAND DELIVERED Chase R. Stephens Samuel J. Chilk, Secretary Docketing and Service Branch Office of the Secretary of the U.S. Nuclear Regulatory Commission Commission tashington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Douglas F. John, Esq. Josepts Rutberg, Esq.

Akin, Gump, Haver & Feld Antitrust Counsel 1100 Madison Office Bldg. Counsel for NRC Staff 1155 15th Street, N.W. U.S. Nuclear Regulatory Washington, DC 20005 Commission Washington, DC 20555 Morgan Hunter, Esq. Joseph J. Saunders, Esq.

Chief, Public Counsel &

Bill D. St. Clair, Esq.

McGinnis, Lockridge & Legislative Section Kilgore Antitrust Section Fifth Floor, Texas State Bank Bldg. U.S. Department of Justice 900 Congress Avenue P.O. Box 14141 Austin, TX 78701 Washington, D C. 20044 Kevin B. Pratt Texas Attorney General's Office G.K. Spruce, General Manager State of Texas City Public Service Board P.O. Box 12548 P.O. Box 1771 Austin, TX 78711 San Antonio, TX 78203 William H. Burchett, Esq.

W.S. Robson General Manager Frederick H. Ritts, Esq.

South Texas Electric Cooperating, Northcutt Ely Inc.

Watergate 600 Building Route 6, Building 102 Washington, DC 20037 Victoria Regional Airport Victoria, TX 77901 Robert C. McDiarmid, Esq.

Joseph B. Knotts,'Jr.

Robert Jablon, Esq.

Nicholas S. Reynolds 2600 Virginia Avenue, N.W.

Debevoise & Liberman 806 15th Street, N.W. Washington, DC 20037 Suite 700 Washington, DC 20005

Roff Hardy Don R. Butler, Esq.

Chairman and Chief Executive Sneed, Vine, Wilkerson, Officer Selman & Perry Central Power & Light Company P.O. Box 1409 P.O. Box 2121 Austin, TX 78767 Corpus Christi, TX 78403 Mr. Perry G. Brittain President Jerry L. Harris, Esq.

Texas Utilities Generating Richard C. Palough, Esq.

Company City of Austin 2001 Bryan Tower P.O. Box 1088 Dallas, TX 75201 Austin, TX 78767 R.L. Hancock, Director Don H. Davidson City of Austin Electric Utility City Manager P.O. Box 1086 City of Austin Austin, TX 78767 P.O. Box 1088 Austin, TX 78767 G.W. Oprea, Jr. Robert Lowenstein Executive Vice President J.A. Bouknight, Jr.

Houston Lighting & Power Company William J. Franklin P.O. Box 1700 L'awenstein, Newman, Reis &

Houston, TX 77001 Axelrad 1025 Connecticut Ave., N.W.

Washington, DC 20036 John W. Davidson, Esq.

Judith Harris, Esq. Sawtelle, Goode, Davidson &

Ronald Clark, Esq. Tioilo U.S. Department of Justice 1100 San Antonio Savings Bldg.

Antitrust Division San Antonio, TX 78205 411 - lith St., N.W.

Washington, DC 20530

Richard S. Salzman, Esquire R. Bruce Whitney, Esq.

U.S. Nuclear Regulatory Commission Air Products and Chemicals, Inc.

Washington, D.C. 20555 P.O. Box 538 Allentown, Pennsylvania 18105 Jerome E. Sharfman, Esquire U.S. Nuclear Regulatory Commission Paul M. King, Esq.

Washington, D.C. 20555 PPG Industries, Inc.

One Gateway Center Pittsburgh, Pennsylvania 15222 Thomas G. Ryan, Esq. Ross Austin, Esq.

Isham, Lincoln & Beale E. I. DuPont de Nemours & Co.

One First National Plaza Wilmington, Delaware 19898 Suite 4300 Chicago, Illinois 60603 John Stapleton, Esq. R. Gordon Gooch, Esq.

Monsanto Company John P. Mathis, Esq.

800 N. Lindbergh Baker & Botts St. Louis, Missouri 63166 1701 Pennsylvania Ave., N.H.

Washington, D.C. 20006 Stanley Baumblatt, Esq.

Union- Carbide Corporation Roy P. Lessy, Jr. , Esq.

270 Park Avenue Micahel B. Blume, Esq.

New Yorx, NY 10017 U.S. Nuclear Regulatory Commission Washington, DC 20555

CERTIFICATE OF SERVICE I hereby certify that I have this day served a copy of the foregoing Joint Motion on all parties set forth in the attached list by first-class mail, postage pre-paid.

/ -

' Robert E.' Cohn, Esquire Counsel for the Joint Movants February 16, 1979 h

WHEREFORE, movants respectfully request that the subpoonas for the production of documents and for deposi-tions that have been issued to movants be quashed.

Re p tfully submitted,

/

o e t E.iCohn Richard J. Leidl BUTLER, BINION, RICE, COOK

& KNAPP ,

Attorneys for Air Products and Chemicals, Inc.

E. I. DuPont de Nemours & Co.

Monsanto Company PPG Industries, Inc.

Union Carbide Corporation February 16, 1979

example, Air products alone estimates that no less .

than 200,000 documents relate in some respect to the broad issues raised by CPL's subpoena. These documents are housed in almost 120 linear feet of file space.

Requiring each company to comb all of its plants and facilities for documents rel.ating to the subpoenas would place an enormous burden on each movant's resources.

Such regulatory coercion must not be imposed without a strong demonstration that it is essential to the pro-ceeding. As established above, no such demonstration has been made, or indeed, can be made. In any event, the movant's should not be required to bear' the cost of pro-ducing the data. SEC v. Arthur Young & Co., 584 F2d 1018 (D.C. 1978).

III. CONCLUSION In consideration of the foregoing it is submitted that the subpoenas issued on the application of CPL and served on the novant's are " unreasonable," unduly burdcu-some and " require evidence which is not relevant to any matter in issue," and should be quashed. 10 C.F.R. S 2.720.

business forecasts, data, etc. relating to cost of pro-duction and other highly sensitive matters. The public release of such confidential documents and sensitive trade secrets would provide competitors with valuable information concerning each movant's internal operations and would have a severe adverse impact on its ability to compete in its field. Such invasions of privacy and confidential business relations should not be permitted. Hecht v. Pro-Football, Inc., 46 F.R.D. 605 (D.

D.C. 1969); United States v. Serta Associates, Inc., 29 F.R.D. 136 (N.D. Ill. 1961); Continental Distilling Cor-poration v. Humphrey, 17 F.R.D. 237 (D. D.C. 1955). Even where a compelling showing has been made--which it has not in this case--for the release of confidential information, a protective order must be issued to protect the confi-dentiality of the documents.

3. Compliance with the subpoenas would entail a monumental and undue burden on all of the movants. As noted, the document request reaches every plant and facility of each movant throughout the country. Movants would be required to produce literally millions of documents. For

parties to the proceeding cannot adequately satisfy CPL's need for information. Equal Employment Opportunity Co==ission v. Packard Electric Division, General Motors Corp., 1569 F.2d 315 (5th Cir. 1977).

In these circumstances, the subpoenas should never have been issued and, therefore, should be quashed.

Premium Service Corporation v. Sperry & Huteninson Company, 511 F2d 225 (9th Cir. 1975); In Re Grand Jury Investigation (General Motors Corp.), 174 F. Supp. 393 (S.D. NY 1959).

2. The documents demanded contain--indeed, they themselves constitute--internal information which is privi-7/

leged, confidential and proprietary. Such information relates to the canner in which each movant conducts its operations, the various factors each movant considers in its own judgnent important in making business decisions concerning the location of facilities, the individual energy needs of its operations, the costs of production of its facilities, and proposals regarding future expansion and development. Hence, documents relating to siting of plants and consideration of energy usage, costs, availability, reliability, etc. , are inextricably intertwined in the entire operating process of the movant's and involva internal 7/ Documents relating to testicony in the Generic Rate Hearings nay in addition be privileged lawyer-client co==unications.

Thus, even those documents that pertain to activities of the movants in Texas are material and relevant only to the extent that they post-date the Commission's original anti-trust inquiry in the construction permit phase which termi-nated in early 1976 All but a very few of movant's manu-facturing plants were established and operating prior to 1/

1976. Consequently, documents relating to Texas siting deterninations of movants are all beyond the scope of this proceeding, with the arguable exception of the few facili-ties set forth in the margin below constructed subsequent to 1976.

Putting aside the question of relevancy and materiality, it is our understanding that all of the information which CPL wants is presently in the possession of persons who are already parties to this proceeding. There is no reason why disinterested non-parties must be forced to incur the time and expense of accumulating material which can be developed through other less burdensome means, or why discovery of 6/ All of the facilities of DuPont and Monsanto predated 1976. Of Union Carbide's facilities, only two very small pumping stations have been built since 1976.

Expansion is currently underway at one of Air Product's three Texas plants. One of PPG's six Texas plants was recently purchased from a third party; but the plant had been established prior to 1976.

Documents that do not bear on the question of consumer choice among the electric utilities in Texas can in no way be relevant or material to the Commission's limited anti-trust inquiry. CPL simply cannot establish anti rust in-fractions against Houston Lighting and Power Comrjany (HLP)

(or cthers) that do not involve the particular service areas of CPL and HLP.

Furthermore, the Commission's June 15, 1977 order instituting the instant proceeding makes it clear that the only matters which are in issue in this case are changes which occurred after the close of the construction permit proceeding in 1976. In this connection the Commission stated

. . .we are making the Section 105(c) (2) "de-termination" that a further antittust review is " advisable" because of "significant changes" in the licensee's activities occurring subse-quent to the antitrust review previously completed at the construction permit stage.

...we have concluded that this second look at the operating license state is to be a restricted one, focusing on the changed circumstances. 5/

5/ NRC Order dated June 15, 1977, at p. 28, 30. See also, NRC Notice of Special Prehearir; Conference dated May 17, 1978 at p. 2.

aspects of competition or the competitive conduct of 3/

the applicant."

CPL's subpoenas, on the other hand, if not quashed would require movants--who are not parties to this case and do not wish to participate in it--to produce all docu-ments in their possession since January 1970 relating to considerations of electrical power, usage, prices, reliability and availability in every plant or facility throughout the nation. The outrageously broad scope of the subpoenas would involve a vast number of industrial and operational facilities including DuPont's 90 plants, PPG's 44 plants, Monsanto's 78 plants, 23 laboratory facilities and 102 sales offices, Union Carbide's 130 (+) plants, 7 research and development facilities and 4 sales offices and Air Product's 97 plants, 5 laboratory facilities and 99 sales offices. Moreover, only a smal-1 fraction of movants' facilities are located in Texas (5 of DuPont's 90 plants, 6 of PPG's 44 plants, 2 of Monsanto's 78 plants, 12 of Union Carbide's 130 plants and 3 of Air Products 97 4/

plants).

3/ NRC Order dated June 15, 1977, p. 27. As the Commission stated, "a full-blown de novo antitrust review...would be inconsistent with the statutory scheme..." Id. at p. 31.

4/ These figures were assembled quickly and can only be con-sidered approximate.

Furthermore, the documents requested are not relevant to the issues in this proceeding and even if found to be relevant, they can be obtained through persons already parties to this case.

Finally, compliance with the subpoenas will place a monumental and unreasonable burden on the movants for which no need has been demonstrated.

In support of these premises, movants state as follows.

II. ARGUMENT

1. The subpoenas are unreasonably broad in scope, covering documents and data which are clearly irrelevant to the issues in this proceeding.

This case involves a limited antitrust inquiry into the activities of two electric utility companies in Texas. In its June 15, 1977 Order, the NRC instituted a limited antitrust review under section 105 of the Atomic Energy Act, 42 U.S.C. 2135, to determine whether any "significant changes" had occurred in the activities in Texas of the joint licensees in this case relating to "the impact of the operation of the [ nuclear] plant on

I. INTRODUCTION AND

SUMMARY

OF ARGUMENT Movants are industrial manufacturers. They are not parties to the captioned proceeding and have no interest or desire to participate in it. Movants are only five of thousands of industrial users of electrical energy through-out the nation. Yet, to the best of our knowledge movants are the only commercial consumers to have been served with subpoenas in this case. As a matter of law and sound administrative policy the subpoenas must be quashed.

The subpoenas are unreasonably broad in scope, covering documents which relate generally to almost every phase of the manner in which movants do business, and specifically to considerations of electricity usage in every plant or facility throughout the nation. Moreover, the documents embraced by the subpoena contain trade sec.rets and are privileged, confidential and proprietary in nature. They cover movants' internal policies and operations, the public release of which would have a severe adverse impact on each movant's ability to compete in its respective field.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of  :

HOUSTON LIGHTING AND POWER COMPANY  :

THE CITY OF SAN ANTONIO  :

THE CITY OF AUSTIN and  : Docket Nos. 50-498A CENTRAL POWER AND  : 50-499A LIGHT COMPANY  :

(South. Texas Project, Units Nos.  :

1 and 2).  :

JOINT MOTION TO QUASH SUBPOENAS Pursuant to 10 C.F.R. S 2.720, Air Products and Chemicals, Inc. (Air Products), E. I. DuPont de Nemours & Co. (DuPont) ,

Monsanto Company (Monsanto), PPG Industries, Inc. (PPG),

and Union Carbide Corporation.(Union Carbide), herein jointly called movants, hereby jointly move to quash the related sub-poenas for the production of documents and for depositions issued by the Atomic Safety and Licensing Board on January 31, 1979 on the application of Central Power and Light Company 1/ 2/

(CPL). .

1/ This motion to quash is timely under Rule 2.720 (f) of the Commission's Rules of Practice since it is filed promptly after service (on or about February 8, 1979) and "at or be-fore the time specified in the subpoena for compliance" which is February 19,.1979.

2/ This motion to quash relates to the subpoenas for the pro-duction of documents and the subpoenas for depositions since both demand information regarding the same sets of documents.