ML19260C434
| ML19260C434 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak  |
| Issue date: | 12/11/1979 |
| From: | Blum R BAKER & BOTTS, HOUSTON LIGHTING & POWER CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7912260357 | |
| Download: ML19260C434 (9) | |
Text
.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
HOUSTON LIGHTING & POWER COMPANY,
)
Docket Nos. 50-498A et al.
)
50-499A
)
(South Texas Project, Units 1
)
and 2)
)
)
TEXAS UTILITIES GENERATING COMPANY,
)
Docket Nos. 50-445A et al.
)
50-446A
)
(Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
RESPONSE OF HOUSTON LIGHTING & POWER COMPANY TO DEPARTMENT OF JUSTICE'S MOTION FOR EXTENSION OF HEARING SCHEDULE AND ANCILLARY RELIEF In its Motion for extension of the hearing schedule and ancillary relief (the " Motion"),b! the Department seeks to h' ave both the com-pletion date for discovery and the starting date of the evidentiary hearing delayed by two months.
(Motion at 8.)
Additionally, the Department seeks to have further depositions of its (and other parties')
expert witnesses confined to one day per expert in a specified ten-day period after the completion of normal discovery.
(Motion at 6, 8.)
On principle, Houston opposes any further slippage of the pres-ent schedule.
Houston has substantially completed its discovery and would be ready for hearing had not the Department propounded a new 1/
- The Department styled its pleading " Motion of the Department of Justice for Modification of the July 24, Order of t..e Atomic Safety and Licensing Board and Application for Issuance of Subpoenas," dated November 30, 1979.
1618 350 7912e 60 ]sds 7 $
witness list at the eleventh hour, and had the Department's and the Staff's experts not been dilatory in preparing for the hearing.
How-ever, if the Board deems further delay necessary, Houston urges the Board to modify the schedule proposed by the Department in the respects detailed below.
I.
THE HEARING SCHEDULE SHOULD PROVIDE THAT HOUSTON MAY FILE ITS TRIAL BRIEF IN RESPONSE TO THOSE OF THE GOVERNMENT AND OTHER COMPLAINING PARTIES First, the hearing schedule should provide that the respondent parties, such as Houston, file their trial briefs in response to the briefs of the parties seeking license conditions.
Houston still has not been informed what theories of antitrust violations or supporting facts will be presented in this case by the Department or the NRC Staff.
As set out in Houston's pending motion to compel, neither the Department nor the Staff has answered interrogatories concerning such fundamental antitrust issues as competition, alleged injury to com-petition, and relevant markets.2/
Furthermore, depositions of expert witnesses of the Department and the Staff have produced little, if any, substantive information.
For example, both Dr. Gordon T.
C.
Taylor, the Department's economic expert, and Dr. Norman Lerner, the Staff's econonist, testified in their respective depositions that they do not have even a tentative idea what their hearing testimony might be.3/
Given this paucity of information, and the late stage 2/ ouston's Motion sought an Order requiring answers by December 15, H
1979.
If the Board grants the extension of the hearing date requested by the Department, Houston proposes that the Board order responsive interrogatory answers be required by January 15, 1980.
See Motion of Houston Lighting & Power Company to Compel the Depart-ment of Justice and the NRC Staff to Respond to Houston's First Set of Interrogatories and Requests for Production of Documents, dated November 30, 1979.
1618 351 3/
-- S e e,
e.g.,
Lerner Deposition at 84.
Dr. Tay. tor's deposition has not yet been transcribed; his testimony was 'o.the same effect.
. of this proceeding, it is not realistic or equitable to propose, as does the Department, that trial briefs be filed simultaneously.
Responsive trial briefs would be preferable here even if the Government had formulated its case.
Houston is undeniably in the position of a defendant or respondent in this proceeding, and as such is bound to respond in its defense at trial to the contentions of others.
A responsive trial brief will enable Houston more sharply to focus on those issues, factual and legal, that will actually be liti-gated and argued in the hearing, and will be far more helpful to the Board in bringing those issues into resolution than any simultaneous brief could be.A/
These factors, as well as traditional principles of civil and administrative procedure, militate in favor of a schedule in which Houston files its trial brief after and in response to that of the parties that now seek to add conditions to the STP operating license.1/
For this reason, Houston requests that in any hearing schedule the Board mandates, its trial brief, designation of witnesses, and summaries of testimony be due thirty (30) days after the trial briefs, 4/
- Even assuming that additional discovery of the Department, the Staff, and their experts will be more meaningful than heretofore has been true, such discovery would probably be too late to use in detail in simultaneous briefs, and would not make simultaneous briefing desirable in any event.
Houston should be provided in advance of the preparation of its trial brief the legal theories and supporting precedent briefed by the Department and the Staff.
Any other course would leave the Board with briefs that do not squarely meet on the issues--an unsatisfactory result.
5/
- Likewise, permitting Houston to designate witnesses and file summaries of testimony in response to the designations and summaries of the com-plaining parties will prevent the naming of potential witnesses who are not needed to rebut the case presented by the Department, the Staff, and other complaining parties.
1618 352 f
designations of witnesses, and summaries of testimony of the Department, the Staff, and other complaining parties.
II.
THE BOARD SHOULD NOT ADOPT THE DEPARTMENT'S REQUESTED ARTIFICIAL LIMITATIONS ON DISCOVERY Second, the Department's Motion seeks to limit further depositions of all expert witnesses to (a) one day each (b) in a ten-day period (c) approximately thirty days after the close of discovery.
(Motion at 6, 8.)
The Department furnished no explanation for seeking these limi-tations, and the Board should not adopt them.
The time required to obtain all relevant testimony from an expert should define the length of his deposition.
Artificially limiting depositions to a single day will preclude a thorough airing of all relevant facts.
It could also encourage dilatory tactics from counsel and witnesses alike.
As the Department's and the Staff's experts have been unable to formulate satisfactory antitrust theories and by their own admissions are still on square one, limiting dis-covery of their final opinions to one day is unreasonable.
Scheduling all depositions of experts in a fixed ten-day period will be extremely burdensome from a scheduling standpoint.
This sug-gestion turns on the one-day limitation on the depositions of experts and should be similarly rejected for the reasons outlined above.
The Department's position that factual discovery must cease thirty (30) days before its experts' depositions presumes that those experts will begin and complete their assignments all within that hiatus.
This, however, is contrary to experience and common sense.
The better procedure is to adopt a single termination date for discovery, with the burden of scheduling borne by counsel.
I618 353
. III.
CONCLUSION For all the foregoing reasons, Houston requests that in the event th'2 Board modifies the discovery schedule, it does so (1) by adopting a single termination date for all discovery, (2) by refusing artificial limitations on depositions absent a particularized showing of good cause, and (3) Fy requiring a trial brief, witness designation and testimony summaries from Houston no sooner than thirty (30) days after the filing of such documents by the Department, the Staff and other complaining parties.5/
Dated:
December 11, 1979 Respectfully submitted,
/
. ', I W
' jm /
y,
~
. v
Attorney for Housten Lighting
& Power Company Baker & Botts 3000 One Shell Plaza Houston, Texas 77002 Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.
Washington, D.
C.
20036 b! ee also supra at p.2 note 2 for Houston's proposal with respect S
to its outstanding Motion to Compel.
1618 354
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
HOUSTON LIGHTING &
)
POWER COMPANY, et al
)
Docket Nos. 50-498A
)
50-499A (South Texas Project,
)
Units 1 and 2)
)
)
)
TEXAS UTILITIES
)
Docket Nos. 50-445A GENERATING CO., et al )
50-446A
)
(Comanche Peak Steam
)
Electric Station,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the foregoing:
RESPONSE OF HOUSTON LIGHTING & POWER COMPANY TO DEPARTMENT OF JUSTICE'S MOTION FOR EXTENSION OF HEARING SCHEDULE AND ANCILLARY RELIEF were served upon the following persons, by hand *, or by deposit in the United States Mail, first class postage pre-paid, this lith day of December, 1979.
/
/(-
. sum _ -
,,, y-r 1618 355
Marshall E. Miller, Esquire Frederic D.
Chanania, Esquire U.S.
Nuclear Regulatory Commission Roy P.
Lessy, Jr., Esquire Washington, D.C.
20555 Michael B.
Blume, Esquire Ann P. Hodgdon, Esquire
- Michael L.
Glaser, Esquire U.S. Nuclear Regulatory Comm.
1150 17th Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 Roff Hardy Sheldon J. Wolfe, Esquire Chairman and Chief Executive U.S. Nuclear Regulatory Commission Officer Washington, D.C.
20555 Central Power and Light Company Post Office Box 2121 Atomic Safety and Licensing Corpus Christi, Texas 78403 Appeal Board Panel U.S. Nuclear Regulatory Commission G.K.
Spruce, General Manager Washington, D.C.
20555 City Public Service Board Post Office Box 1771 Chase R.
Stephens, Supervisor (20)
San Antonio, Texas 78203 Docketing and Service Branch U.S. Nuclear Regulatory Commission Mr. Perry G. Brittain Washington, D.C.
20555 President Texas Utilities Generating Company Mr. Jerome D.
Saltzman 2001 Bryan Tower Chief, Antitrust and Indemnity Dallas, Texas 75201 Group U.S. Nuclear Regulatory Commission G.W.
Oprea, Jr.
Washington, D.C.
20555 Executive Vice President Houston Lighting & Power Company J.
Irion Worsham, Esquire Post Office Eox 1700 Merlyn D.
Sampels, Esquire Houston, Texas 77001 Spencer C.
Relyea, Esquire Worsham, Forsyth & Sampels R.L.
Hancock, Director 2001 Bryan Tower, Suite 2500 City of Austin Electric Utility Dallas, Texas 75201 Post Office Box 1086 Austin, Texas 78767 Jon C. Wood, Esquire Matthews, Nowlin, Macfarlane Joseph Gallo, Esquire
& Barrett Robert H.
Loeffler, Esquire 1500 Alamo National Building Isham, Lincoln & Beale San Antonio, Texas 78205 1050 17th Street, N.M.
Suite 701 Washington, D.C.
20036 Charles G. Thrash, Jr., Esquire E.W.
Barnett, Esquire Michael I. Miller, Esquire Theodore F.
Weiss, Esquire David M.
Stahl, Esquire J. Gregory Copeland, Esquire Martha E.
Biggs, Esquire Baker & Botts James A.
Carney, Esquire 3000 One Shell Plaza Sarah Welling Houston, Texas 77002 Isham, Lincoln & Beale One First National Plaza R.
Gordon Gooch, Esquire Suite 4200 Steven R.
Hunsicker, Esquire Chicago, Illinois 60603 Baker & Bctts 1701 Pennsylvania Avenue Don R.
Butler, Esquire Washington, D.C.
20006 Sneed, Vine, Wilkerson, Selman
& Perry Post Office Box 1409 Austin, Texas 78768 1618 356
l I Jerry L.
Harris, Esquire W.S.
Robson Richard C.
Balough, Esquire General Manager Cicy of Austin South Texas Electric Cooperative, Inc.
P.O. Box 1088 Route 6, Building 102 A2stin, Texas 78767 Victoria Regional Airport Victoria, Texas 77901 Joseph B.
Knotts, Jr., Esquire Nicholas S.
Reynolds, Esquire Robert C. McDiarmid, Esquire Debevoise & Liberman Robert A.
Jablon, Esquire 1200 17th Street, N.W.
Marc R.
Poirier, Esquire Was hington,
D.C.
20036 Spiegcl & McDiarmid 2600 Virginia Avenue, N.W.
Don H.
Davidson Washington, D.C.
20037 City Manager City of Austin Kevin B.
Pratt P.O. Box 1088 Texas Attorney General's Office Austin, Texas 78767 P.O. Box 12548 Austin, Texas 78711 Jay Galt, Esquire Looney, Nichols, Johnson & Hays William H.
Burchette, Esquire 219 Couch Drive Frederick H.
Ritts, Esquire Oklahoma City, Oklahoma 73102 Law Offices of Northcutt Ely Watergate 600 Building Knoland J.
Plucknett Washington, D.C.
20036 Executive Director Committee on Power for the South-Tom W.
Gregg, Escuire west, Inc.
P.O.
Box Drawer 1032 5541 East Skelly Drive San Angelo, Texas 76902 Tulsa, Oklahoma 74135 Leland F.
Leatherman, Esquire John W.
Davidson, Esquire McMath, Leatherman & Woods, P.A.
Sawtell, Goode, Davidson & Tioilo 711 West Third Street 1100 San Antonio Savings Building Little Rock, Arkansas 72201 San Antonio, Texas 78205 Paul W.
- Eaton, Jr.,
Esquire Douglas F. John, Esquire Hinkle, Cox, Eaton, Coffield &
Akin, Gump, Hauer & Feld Hensley 1333 New Hampshire Avenue, N.N.
600 Henkle Building Suite 400 P.O.
Box 10 Washington, D.C.
20036 Roswell, New Mexico 88201 David A.
Dopsovic, Esquire Robert M.
Rader, Esquire Frederick H.
Parmeter, Esquire Conner, Moore & Corber Susan B.
Cyphert, Esquire 1747 Pennsylvania Avenue, N.W.
Nancy A.
Luque, Esquire Washington, D.C.
20006 Energy Section Antitrust Division U.S.
Department of Justice W.N.
Woolsey, Esquire P.O. Box 14141 Dyer and Redford Washington, D.C.
20044 1030 Detroleum Corpus Christi, Texas 78474 Morgan Hunter, Esquire Bill D.
St. Clair, Esquire McGinnis, Lockridge & Kilgore Fifth Floor jfjg[ Texas State Bank Building 600 Congress Avenue Austin, Texas 78701
.. Donald M. Clements, Esquire Gulf States Utilities Company P.O. Box 2951 Beaumont, Texas 77704 Dick Terrell Brown, Esquire 800 Milam Building San Antonio, Texas 78205 1618 358}}