ML19260C692

Opposition to DOJ 791214 Request for Protective Order & for Extension Until 800201 to Respond to Nonantitrust Interrogatories.Request Unreasonable & Contradicts NRC Rules of Practice.Certificate of Svc Encl

ML19260C692
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	12/20/1979
From:	Franklin W BAKER & BOTTS, HOUSTON LIGHTING & POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8001080397
Download: ML19260C692 (12)

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&+h ggs/F 3 ge r 4g UNITED STATES OF AMERICA v w NUCLEAR REGULATORY COMMISSION g BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

HOUSTON LIGHTING AND 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 MOTION FOR EXTENSION OF TIME On November 30, 1979, more than twenty-one months after the Attorney General's advice letter, Houston Lighting & Power Company (" Houston") moved to compel the Department and the Staff each to identify -- for the first time -- the economic theories and supporting facts for each antitrust allegation they expect to assert against Houston. The Department failed to respond to Houston's motion, and did not seek a protective order limiting the discovery Houston sought.

Instead, on December 14, 1979, the Department filed a Motion for an Extension of Time which proposes that the Depart-ment not be required to disclose its fundamental antitrust economic theories, i.e., relevant market, competition, etc.

-- the crux of its allegations against Houston -- until 1703 008 80 01080 5f k [

m

(;;

after the close of all factual discovery when its expert witness is deposed. With respect to those interrogatories not related to its antitrust contentions, the Department prcposes that it be permitted to defer answers until February 1, 1980, only 28 days before the close of factual discovery. Both proposals are with-out merit.

THE DEPARTMENT MUST PROVIDE ITS FUNDAMENTAL ANTITRUST ECONOMIC THEORIES IN RESPONSE TO HOUSTON'S INTERROGATORIES.

In its Motion, the Department states as follows with respect to Houston's request for answers as to alleged relevant market restraint on competition, and other fundamental antitrust conten-tions:

[W]ith respect to supplementary interrogatory responses regarding the Department's economic analysis, HL&P enjoyed an extensive two-day deposition of the Department's expert economist, Dr. Gordon Taylor. At that deposition, Dr. Taylor stated the general parameters of his analysis to date, and indicated that he would not be able to formulate his final conclusions until after he had completed his analysis of the facts following the conclusion of discovery in this case. The Department has stated that Dr. Taylor will be made available for another deposition after this work is completed.

(Motion at 2, footnote omitted.) Thus the Department apparently propcses that it never be required to provide its fundamental antitrust economic theories and contentions in response to Houston's interrogatories, and that Houston should only be apprised of these theories and contentions in a deposition after factual discovery has been concluded.

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(3)

If this is indeed the Department's position, it is patently unreasonable. Moreover it is irreconcilable with the discovery scheme of the NRC Rules of Practice, under which discovery methods may be used in the alternative. Further, the Department's economic witness cannot identify the antitrust contentions the Department itself intends to adopt or level against Houston.

Houston's deposition of that witness, Dr. Gordon Taylor, on October 25-26, 1979 shed no light on the Department's allegations, and in fact illustrates quite plainly why supplemental inter-rogatory answers stating the Department's contentions well before the close of factual discovery are required. Dr. Taylor had not reached any conclusions as to what product or geographic markets are relevant to the proceeding. (Tr. at 114, 134, 141.)b!

He could not provide even a " tentative idea" of what his testi-mony might be. (Tr. at 168.) That Dr. Taylor promises to reach some conclusions af ter discovery closes is hardly pertinent now.

Houston is entitled to learn the economic substance of the Department's allegations against it at this time. The Department's unjustifiable position seeks to withhold that information.

THE DEPARTMENT SHOULD BE REQUIRED TO RESPOND TO ALL OF HOUSTON'S INTERROGATORIES BY JANUARY 15.

The Department's request for an extension until February 1 is not justified. While all parties have been very busy, Houston has agreed to give the Department an extension cf time until January 15, 1980,2/ and this is ample. February 1 is only twenty-eight days from the close of factual discovery. The remaining 1/ Transcript pages attached as exhibit A.

2/ Response to the Department of Justice's Motion for Extension of Hearing Schedule and Ancillary Relief, dated December ll, 1979 at 2. n.2.

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(4) period of time is simply too short for Houston to resolve possible prob) ems with the Department's answers and to conduct factual discovery to test the merits of the Department's contentions and develop the appropriate refutation.

As Houston pointed out in its Motion, a defendant in an antitrust case is clearly entitled to discover a plaintiff's antitrust contentions and their factual bases at an early enough time to permit the defendant to prepare its defense.

(Motion to Compel at 4-5. ) The Department's position and its proposals are groundless.

Houston renews its Motion to Compel production from the Department of Justice for complete substantive answers to Houston's First Set of Interrogatories and Request for Production of Documents. The Department's Motion for an Extension should be denied, and the Department should be ordered to respond, as requested in Houston's Motion to Compel, by January 15, 1980.

Respectfully submitted, A

/

Attorney for Houston Lighting

& Power Company Baker & Botts 3000 One Shell Plaza Houston, Texas 77002 Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avence, N.W.

Washington, D. C. 20036 Dated: December 20, 1979 1703 011

EXHIBIT A - Excerpts from the deposition of 114 Dr. Gordon Taylor, Oct. 25-26, 1979 1

direct tie voltage retail.

2 Q Was the purpose of -- was one of the pur-p ses of this exercise to consider the mcrket 3

4 theory on which you and the department might wish to proceed?

5 A I don't know about the department, but I 6

was looking at economic parameters of 7

g defining the geographic extent of the bulk 9

Power markets and the retail power markets 10 in Texas.

11 Q And I gather that these markets that you 12 have just listed for me are product markets, 13 are they not?

14 A Yes, they are.

15 Q Do you believe that any or all of these 16 product markets are relevant to this pro-17 ceeding?

1 18 A I have not proceeded that far in my analysis 19 to have reached a conclusion on that.

20 Q All right, sir. Let's go back to just where B 21 you are in your analysis. Let me ask you 22 this one more question about these three 23 meetings.

3 24 Aside from the discussion of these hypotheticals and the resultant j 25 1703 012 3

134 1 from chlorine?

2 MR. BOUKNIGHT: If you wish a

,~

3 clarification, let me give it to you.

4 MS. CYPHERT: Okay.

5 MR. BOUKNIGHT: We're discussing 6 a geographical market for industrial competi-j 7 tion, and Dr. Taylor has outlined th' market 8 that he contends is relevant. And these 9 questions go to the subject of whether that 10 geographical market applies in a variety of 11 cases.

[ Attorney for Dept. of Justice]

12 MS. CYPHERT:/ I don' think Dr.

13 Taylor has testified about any market being 14 relevant for purposes of this case. I think 15 he has taken the time to explore his thinking 16 on areas with you this afternoon, and I think 17 that perhaps you're reading a little bit too 18 much into wha t's going on here. Why don't 19 you state a question, start the question 20 again and I'll attempt to listen to it a little I

21 more carefully and see if I can follow what 22 you're doing now.

23 MR. BOUKNIGHT: Ms. Cyphert, I'd 24 like to e: plore Dr. Taylor's thinking as j 25 much as possible this afternoon.

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141 1 I'll be happy to. Let me ask you: Dr.

o 2 Taylor, do you plan on testifying on relevant

.~

3 markets in this proceeding?

4 A If I'm asked to do so, I will.

5 o Do you predict at this point that you may be 6 asked to do so?

7 A I would think that I would be.

8 o And if you were asked to do so, would you 9 consider the question of competition for 10 retail industrial customers?

11 A Probably I would, yes.

12 o And if you were to do so, would it be necessary 13 for you to define relevant geographic markets?

- 14 A Yes, it would.

15 o And where do you stand now in the Process 16 of defining those relevant geographic markets?

17 A I have not completed analysis 6f tha*. ques-18 tion.

19 o What else do you need to do and what else

- 20 do you need to look at in order to complete 21 your analysis of hat question?

"I 22 23 (A discussion was had between l

24 the tness and Ms. Cyphert, and the following 25 proc ..g s were then had:) i 1703 014

168 1 And I have notes on them and I think that 2 you have a copy of that.

0 Fai) enough. As of this stage, Dr. Taylor, 3

4 what do you understand your assignment to 5 be in the department in this case?

6 A I have been asked to look at what the structure of the electric ntility industry is in Texas, j 7 8 to look at whether there is competition in 9 that industry and what the competitive effects 10 would be of staying -- I guess staiing inter-state or going -- excuse me. -- staying 11 12 intrastate or going interstate; and whether 13 there are other types of competitive problems 14 that need to be resolved, whether or not 15 Texas should go interstate.

16 O Have you prepared any sort of written outline 17 or draft of your potential testimony at this 18 stage?

19 A No.

20 Q Wheie do you stand in your thinking about 21 your testimony? Have you reached some tenta-22 tive ideas of your own as to what it is going

'23 to look like?

24 A I have not.

25 C Do you have any idea as to when you're going 1703 015 j

UNITED STAT-- '

aICA NUCLEAR REGULA1T uOMMISSION BEFORE THE ATOMIC SAFETY 7"' LICENSING BOARD In the Matter of '

HOUSTON LIGHTING & POWER ) Docket Nos. 50-498A COMPANY, et al. ) 50-499A

)

(South Texas Project, )

Units 1 and 2) )

)

)

TEXAS UTILITIES GENERATING ) Docket Nos. 50-445A COMPANY, 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 MOTION FOR EXTENSION OF TIME, dated December 20, 1979, were served upon the following persons, by hand *, or by deposit in the United States Mail, first class postage prepaid, this 20th day of December, 1979.

A 1703 016

• Marshall E. Miller, Esquire *"rederic D. Chanania, Esqaire 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 Commission 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 Corous 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 Comoany J. Irion Worsham, Esquire Post Office Box 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. Food, Esquire Matthews, Nowlin, Macfarlane Joseoh Gallo, Esquire

& Barrett Robert H. Loeffler, Esquire 1500 Alamo National Building Isham, Lincoln & Beale San Antonio, Texas 78205 1050 17th Street, N.W., Suite 701 Washingtor. D.C. 20036 Charles G. Thrash, Jr., Esquire E.W. Barnett, Esquire Michael I. Miller, Esquire Theodore F. Weiss, Esquire James A. Carney, Esquire J. Gregory Copeland, Esquire Sarah Welling, Esquire Baker & Botts Isham, Lincoln & Beale 3000 One Shell Plaza One First National Plaza Houston, Texas 77002 ' Suite 4200 Chicago, Illinois 60603 R. Gordon Gooch, Esquire Steven R. Hunsicker, Esquire David M. Stahl, Esquire Baker & Botts Isham, Lincoln & Beale 1701 Pennsylvania Avenue 1050 17th Street, N.W.

Washington, D.C. 20006 Suite 701 Washington, D.C. 20036 1703 017

Don R. Butler, Esquire

• David A. Dopsovic, Esquire Sneed, Vine, Wilkerson, Selman Frederick H. Parmeter, Esquire

& Perry Susan B. Cyphert, Esquire Post Office Box 1409 Nancy A. Luque, Esquire Austin, Texas 78768 Energy Section Antitrust Division U.S. Department of Justice Mr. William C. Price P.O. Box 14141 Central Power & Light Company Washington, D.C. 20044 P.O. Box 2121 Corpus Christi, Texas 78403 Morgan Hunter, Esquire Bill D. St. Clair, Esquire Mr. G. Holman King McGinnis, Lockridge & Kilgore West Texas Utilities Company Fifth Floor P.O. Box 841 Texas State Bank Building Abilene, Texas 79604 900 Congress Avenue Austin, Texas 78701 Jerry L. Harris, Esquire Richard C. Balough, Esquire W.S. Robson City of Austin General Manager P.O. Box 1088 South Texas Electric Cooperative, Inc.

Austin, Texas 78767 Route 6, Building 102 Victoria Regional Airport Joseph B. Knotts, Jr., Esquire Victoria, Texas 77901 Nicholas S. Peynolds, Esquire Debevoise & Liberman Robert C. McDiarmid, Esquire 1200 17th Street, N . id . Robert A. Jablon, Esquire Washington, D.C. 20036 Marc R. Poirier, Esquire Spiegel & McDiarmid Don H. Davidson 2600 Virginia Avenue, N.W.

City Manager Washington, D.C. 20037 City of Austin P.O. Box 1088 Kevin B. Pratt Austin, Texas 78767 Texas Attorney General's Office P.O. Box 12548 Jay Galt, Esquire Austin, Texas 78713 Looney, Nichols, Johnson & Hays 219 Couch Drive William H. Burchette, Esquire Oklahoma City, Oklahoma 73102 Frederick H. Ritts, Esquire Law Offices of Northcutt Ely Knoland J. Plucknett Watergate 600 Building Executive Director Washington, D.C. 20036 Committee on Power for the South-west, Inc. Tom W. Gregg, Esquire 5541 East Skelly Drive P.O. Box Drawer 1032 Tulsa, Oklahoma 74135 San Angelo, Texas 76902 John W. Davidson, Escuire Leland F. Leatherman, Esquire Sawtell, Goode, Davidson & Tioili McMath, Leatherman & Woods, P.A.

1100 San Antonio Savincg Duilding 711 West Third Street San Antonio, Texas 78205 Little Rock, Arkansas 72201 Douglas P. John, Esquire Paul W. Eaton, Jr., Esquire Akin, Gump, Hauer & Feld Hinkle, Cox, Eaton, Coffield & Hensley 1333 New Hampshire Avenue, N.W. 600 Henkle Building Suite 400 P.O. Box 10 Washington, D.C. 20036 Roswell, New Mexico 88201 1703 318

Robert M. Rader, Esquire Conner, Moore & Corber 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 W.N. Woolsey, Esquire Dyer and Redford 1030 Petroleum Corpus Christi, Textas 78474 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 C. Dennis Ahearn, Esgitire Debevoise & Liberman 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 t

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