ML19260C409

Response in Support of DOJ Motion for Mod of ASLB 790724 Order by Extending Discovery & Hearing Schedule.Delay Needed to Assimilate Evidence & to Narrow Issues.Certificate of Svc Encl

ML19260C409
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	12/07/1979
From:	Welling S CENTRAL & SOUTH WEST CORP., ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 7912260297
Download: ML19260C409 (10)

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(\ . ') T UNITED STATES OF AMERICA + 4 NUCLEAR REGULATORY COMMISSION 8dN*

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\r l c-BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

HOUSTON LIGHTING & POWER ) NRC DOCKET NOS. 50-498A COMPANY, THE CITY OF SAN ) 50-499A ANTONIO, THE CITY OF AUSTIN, )

and CENTRAL POWER AND LIGHT )

COMPANY )

(South Texas Project, Unit )

Nos. 1 and 2) )

)

TEXAS UTILITIES GENERATING ) NRC DOCKET NOS. 50-445A COMPANY, ET AL. ) 50-446A (Comanche Peak Steam Electric )

Station, Unit Nos. 1 and 2) )

RESPONSE OF CENTRAL AND SOUTH WEST CORPORATION, ET AL., TO MOTION OF THE DEPARTMENT OF JUSTICE FOR MODIFICAIION OF THE JULY 24, 1979 ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD THE DEPARTMENT OF JUSTICE ("DOJ") has filed a Motion (the "DOJ Motion") for Modification of the July 24, 1979 Order of the Atomic Safety and Licensing Board, which seeks to extend the discovery and hearing schedule in the captioned matters.

CENTRAL AND SOUTH WEST CORPORATION, CENTRAL POWER AND LIGHT COMPANY, PUBLIC SERVICE COMPANY OF OKLAHOMA, SOUTHWESTERN ELECTRIC POWER COMPANY and WEST TEXAS UTILITIES COMPANY (collectively "CSW, et al.") hereby respond to the DOJ Motion, stating their support for said Motion.

In supporting the DOJ Motion, CSW, et al., adopt the statements set forth by the DOJ in Parts I, IIA, D and E of its Motion. CSW, et al. also accept as factual the statements 1618 269 297 y 7912260 **'

set forth by the DOJ in Parts IIB and C of its Motion, regarding its intention to schedule additional depositions (consistent with the DOJ's Application in Part III of its Motion for the issuance of additional subpoenas) and the reasons set forth therein by the DOJ for so doing at this time.

In further support of the DOJ Motion, CSW, et al. state as follows:

1. In addition to the list of presently scheduled depositions set forth in Part IIA of the DOJ Motion and Exhibit A thereto, there are other depositions which various parties have planned, including the following:

a. CSW, et al. have now filed and served Notices of Depositions of the followinT persons on the dates set forth opposite their names:

Mr. T.L. Austin, December 17, 1979 Chairman of the Board of Directors of Texas Utilities Company Mr. B.B. Hulsey, Jr., December 18, 1979 President of Texas Utilities Company Mr. Perry G. Brittain, December 18, 1979 President of Texas Utilities Services, Inc. and Texas Utilities Generatina Company Mr. Michael D. Spence December 19, 1979 Vice President of Texas Power and Light Company

b. The Public Utilities Board of Brownsville had filed and served a Notice of Deposition of Merle L. Burchelt, to be held on December 12, 1979.

(By agreement between the parties, because of scheduling conflicts, the deposition of Mr. Burchelt 1618 270

and the depositions of Messrs. Autrey, Hardy and Phillips, previously scheduled for December 11, 13 and 17, 1979, respectively, have now been con-tinued to some time in January, 1980, on specific dates later to be agreed upon.)

c. When notified of the intention of CSW, et al. to file and serve Notices of the Depositions of Mr. D. Jordan, President of Houston Light and Power Co. ("HLP"), and Mr. R. M. McCuistion, Vice President of HLP, for some time in December, 1979, attorneys for HLP agreed to make those individuals available for depositions some time in January, 1980, if CSW, et al. refrained from filing and serving the intended Notices of Deposition at the time.

d. Texas Utilities Company and its subsidiary-parties (collectively "TU, et al.")together with HLP had previously caused to be served on certain employees of CSW, et al. (who had been identified as possible hearing witnesses for CSW, et al.) subpoenas duces tecum for depositions to have been held on various dates prior to December 31, 1979. Because of scheduling conflicts and uncertainty as to which of those employees would likely be called as hearing witnesses by CSW, et al., the parties have agreed to continue those depositions to some time after January 1, 1980, on dates later to be agreed upon, if not otherwise cancelled.

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. c. TU, et al. together with HLP had previously caused to be served on persons identified by CSW, et al. as their contemplated expert witnesses for the hearing (including Mr. James Bruggeman and Mr. Al Wood) subpoenas duces tecum for depositions to have been held prior to December 31, 1979. Because of scheduling conflicts and the preliminary status of the trial preparations by Messrs. Bruggeman and Wood *, the parties have agreed to continue those depositions to some time after January 1, 1980, on dates later to be agreed upon.

2. The parties have been diligent in pursuing discovery since the time of the Board's July 24, 1979 Order establishing the present discovery and hearing schedule. In the approximately 97 business days between July 17, 1979 and November 30, 1979, various parties have participated in approximately 68 depositions **

in at least 15 different metropolitan areas in Texas, Oklahoma, Arkansas, Massachusetts and the District of Columbia, several of which have proceeded simultaneously (with as many as three depositions proceeding in three different places at the same time) and several of which have continued for more than one day's time

• The preliminary status of those trial preparations is primarily the result of the need for further factual information being discovered in the course of the several other ongoing depositions.

• • Attorneys for CSW, et al. have personally participated in approximately 65 of those 68 depositions.

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(with some continuing for as 3 rag as three day's time). In addition, counsel for the various parties have spent a sig-nificant amount of additional time outside the depositions reviewing documents produced by the deponents pursuant to subpoenas duces tecum and arranging for the production of copies of certain of those documents.

3. The time consumed by the unusually heavy schedule of depositions over the past four and one-half months, together with that consumed by other proceedings in this and related matters, has allowed counsel for CSW, et al., and presumably counsel for the other parties as well, minimal opportunity to date to organize and assimilate the relevant evidentiary materials that have been developed through discovery for orderly presentation at the hearing in the matter.

CONCLUSION It is unrealistic to expect that the less than one month period (including the upcoming holiday season) between now and the presently scheduled date for the hearing to commence (February 4, 1980) will be sufficient to allow the effective completion of the already scheduled discovery

• and the organiza-tion and assimilation of the relevant evidentiary matter developed through discovery for orderly presentation at the hearing in the matter. The revised discovery and hearing schedule proposed by the DOJ in its Motion would remedy this

• Also to be considered are the additional depositions for which the DOJ has sought the issuance of subpoenas in Part III of its Motion.

1618 273

. problem. The grant of the DOJ Motion should ultimately redound to the Board's benefit by helping to narrow the issues to be tried in this case.

For all of the foregoing reasons,CSW, et al. support the DOJ Motion.

Respectfully submitted, ISHAM, LINCOLN & BEALE By i' ,

Attorneys for Central'-and South West Corporation, Central Power and Light Company, Public Service Company of Oklahoma, Southwestern Electric Power Company and West Texas Utilities Company ISHAM, LINCOLN & BEALE One First National Plaza Chicago, Illinois 60603 (312) 558-7500 1618 274

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

)

HOUSTON LIGHTING & POWER ) NRC DOCKET NOS. 50-498A COMPANY, THE CITY OF SAN ) 50-499A ANTONIO, THE CITY OF AUSTIN, )

and CENTRAL POWER AND LIGHT )

COMPANY )

(South Texa0 Project, Unit )

Nos. 1 and 2) )

)

TEXAS UTILITIES GENERATING ) NRC DOCKET NOS. 50-445A COMPANY, ET AL. ) 50-446A (Comanche 7e'aE Steam Electric )

Station, Unit Nos. 1 and 2 )

CERTIFICATE OF SERVICE I, Sarah Welling, hereby certify that copies of the foregoing Response to DOJ Motion were served upon the following persons by deposit in the United States mail, first class postage prepaid, on this 7th day of December.

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SERVICE LIST Marshall E. Miller, Esq. Mr. Jerome D. Saltzman U.S. Nuclear Regulatory Chief, Antitrust and Commission Indemnity Group Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Michael L. Glaser, Esq. Nuclear Reactor Regulation 1150 17th Street, N.W. Washingten, D.C. 20555 Washington, D.C. 20036 J. Irion Worsham, Esq.

Sheldon J. Wolfe, Esq. Merlyn D. Sampels, Esq.

U.S. Nuclear Regulatory Spencer C. Relyea, Esq.

Commission Frederic K. Slicker, Esq.

Washington, D.C. 20555 Worsham, Forsythe & Sampels 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 Ato.aic Safety and Licensing Appeal Board Panel Jon C. Wood, Esq.

U.S. Nuclear Regulatory W. Roger Wilson, Esq.

Commission Matthews, Nowlin, Macfarlane Washington, D.C. 20555 & Barrett

~

1500 Alamo National Building San Antonio, Texas 78205 Charles G. Thrash, Jr., Esq.

Chase R. Stephens E. W. Barnett, Esq.

Docketing and Service Branch Theodore F. Weiss, Esq.

U.S. Nuclear Regulatory J. Gregory Copeland, Esq.

Commission J. Michael Baldwin, Esq.

Washington, D.C. 20555 Baker & Botts 3000 One Shell Plaza Houston, Texas 77002 R. Gordon Gooch, Esq. Don R. Butler, Esq.

John P. Mathis, Esq. Sneed, Vine, Wilkerson, Baker & Botts Selman & Perry 1701 Pennsylvania Avenue, N.W. P.O. Box 1409 Washington, D.C. 20006 Austin, Texas 78767 Roy P. Lessy, Jr., Esq.

Michael B. Blume, Esq. Jerry L. Harris, Esq.

Fredric D. Chanania Richard C. Balough, Esq.

Ann P. Hodgdon City of Austin OELD U.S. Nuclear Regulatory P.O. Box 1088 Commission Austin, Texas 78767 Washington, D.C. 20555 Durwood Chalker Chairman and Chief Executive Don H. Davidson Officer City Manager Central Power and Light Company City of Austin P.O. Box 2121 P.O. Box 1088 Corpus Christi, Texas 78403 Austin, Texas 78767 1618 276

Mr. Perry G. Brittain Robert Lowenstein President J. A. Bouknight, Jr.

Texas Utilities Generating William J. Franklin Company Douglas G. Green 2001 Bryan Tower Lowenstein, Newman, Reis &

Dallas, Texas 75201 Axelrad 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Joseph Rutberg, Esq. Wheatley & Miller Antitrust Counsel 1112 Watergate Office Bldg.

Counsel for NRC Staff 2600 Virginia Avenue, N.W.

U.S. Nuclear Regulatory Commission Washington, D.C. 20037 Washington, D.C. 20555 Joseph J. Saunders, Esq. Linda L. Aaker, Esq.

Chief, Public Counsel & Assistant Attorney General Legislative Section P.O. Box 12548 Antitrust Section Capital Station U.S. Department of Justice Austin, Texas 78711 P.O. Box 14141 Washington, D.C. 20044 I G. K. Spruce, General Manager Knoland J. Ilucknett City Public Service Board Executive Director P.O. Box 1771 Committee on Pcwer for the San Antonio, Texas 78203 Southwest, Inc.

5541 East Skelly Drive Tulsa, Oklahoma 74135 Jay M. Galt, Esq. Robert E. Bathen Looney, Nichols, Johnson & Hayes R. W. Beck & Associates 219 Couch Drive P.O. Box 6817 Oklahoma City, Oklahoma 73101 Orlando, Florida 82853 John E. Mathews, Jr., Esq. W. N. Woolsey, Esq.

Mathews, Osborne, Ehrlich, Dyer & Redford Gobelman & Cobb 1030 Petroleum Tower 1500 American Heritage Life Bldg. Corpus Christi, Texas 78474 Jacksonville, Florida 32202 Robert M. Rader, Esq. Tom W. Gregg Connor, Moore & Corben P.O. Box Drawer 1032 1747 Pennsylvania Ave. N.W. San Angelo, Texas 76902 Washington, D.C. 20006 Donald M. Clements, Esq. Leland F. Leatherman, Esq.

Gulf States Utilities Co. McMath, Lea + herman & Woods, P.A.

Post Office Box 2951 711 West Third Street Beaumont, Texas 77704 Little Rock, Arkansas 72201 David A. Dopsovic Paul W. Eaton, Jr., Esq.

Antitrust Division Hinkle, Cox, Eaton, Coffield Department of Justice & Hensley Post Office Box 14141 600 Henkle Bldg., P. O. Box 10 Washington, D.C. 20044 Roswell, New Mexico 88201 1618 277

John W. Davidson, Esq.

R.L. Hancock, Director Sawtelle, Goode, Davidson &

City of Austin Electric Utility Tioilo P.O. Box 1086 1100 San Antonio Savings Austin, Texas 78767 Building San Antonio, Texas 78205 G.W. Oprea, Jr.

Executive Vice President Douglas F. John, Esq.

Houston Lighting & Power Akin, Gump, Haver & Feld Company 1333 New Hampshire Ave. N.W.

P.O. Box 1700 Suite 400 Houston, Texas 77001 Washington, D.C. 20036 Melvin G. Berger, Esq. Morgan Hunter, Esq.

Ronald Clark, Esq. Bill D. St. Clair, Esq.

Frederick H. Parmenter, Esq. McGinnis, Lockridge &

Susan B. Cyphert, Esq. Kilgore Nancy A. Luque Fifth Floor, Texas State U.S. Department of Justice Bank Building Antitrust Division 900 Congress Avenue 411-llth Street, N.W. Austin, Texas 78701 Washington, D.C. 20530 Kevin B. Pratt Texas Attorney General's Office State of Texas William H. Burchett, Esq.

P.O. Box 12548 Frederick H. Ritts, Esq.

Austin, Texas 78711 Northcutt Ely Watergate 600 Building W.S. Robson Washington, D.C. 20037 General Manager South Texas Electric Cooperative, Robert C. McDiarmid, Esq.

Inc. Robert Jablon, Esq.

Route 6, Building 102 Marc Poirier, Esq.

Victoria Regional Airport 2600 Virginia Avenue, N.W.

Victoria, Texas 77901 Washington, D.C. 20037 Joseph B. Knotts, Jr. Joseph Gallo, Esq.

Nicholas S. Reynolds Isham, Lincoln & Beale Debevoise & Liberman 1050 17th Street, N.W.

1200 Seventeenth St., N.W. Seventh Floor Washington, D.C. 20036 Washington, D.C. 20036 Dick Terrell Brown 80G Milam Building San Antonio, Texas 78205

. A^;I t/Ifll1 j Sarah Welling 1618 278