ML19261C498

Memorandum by Util Re Discovery Per ASLB 790209 Order. Disputes Claims of Fact in Intervenor Fl Cities Response; Requests Clarification of Discovery Cutoff Dates.Objects to Cities' Requests 57-59 & 72-73.Certificate of Svc Encl

ML19261C498
Person / Time
Site:	Saint Lucie
Issue date:	03/02/1979
From:	Dym H, Gribbon D, Grossman J COVINGTON & BURLING
To:
References
NUDOCS 7903230025
Download: ML19261C498 (9)

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GN c.k UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 9-'

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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NRC PUBLIC DOCIDENT RCOM wI@

In the Matter of )

) Docket No. 50-389A FLORIDA POWER & LIGHT CCMPANY )

(St. Lucie Plant, Unit No . 2 ) )

APPLICANT'S MEMORANDUM CONCERNING DISCOVERY Florida Power & Light Company (the " Applicant" or

" Company") submits this memorandum pursuant to the Board's Memorandum and Order on Discovery dated February 9, 1979.

The Company Disputes Many of the Cities' Assertions of Fact The Company disputes many of the assertions of fact contained in the intervenor Cities' Response to Applicant's Objections to Interrogatories and Motion for a Protective Order (filed December 22, 1978). The Cities' purported justificaaj on for their Request No. 7, to which the Board directed its attention in this regard, is but one example of the jumble of allegations the Cities have made which the Company believes are misleading and entirely unfounded. In addi tion , the Company disputes the relevance of many of the assertions contained in the Cities ' pleading.

The Board has stated that the Cities ' allegations were not accepted for any purpose except to determine whether a request might reasonably be expected to lead to admissible 7 9 0 3 2 3 0 0;1d5'

evidence. (Memorandum and Order, pp. 29-30.) In light of this and the other considerations cited by the Board, the Company believes that no useful purpose would be served by litigating its pervasive factual disputes with the Cities at this time and in this context. Accordingly, the Company does not move the Board to reconsider any of its rulings on discovery, even though some of them may have been influenced by allegations that the Company believes are untrue and will be disproven during the course of this proceeding.

The Board Should Clarify the Cutoff Date for Applicant's Discovery Requests to the Cities Upon Applicant's objections to the time periods spanned by a number of the Joint Requests and Cities' Requests, the Board set 1965 as the general cutoff date for discovery.

The Board did allow a number of specific requests that reached back before 1965, principally where it believed the requests related to the basic structure of the industry in the relevant market. (Memorandum and Order, p. 12.) In addition, the Board allowed certain requests where it appeared that responsive data could easily be produced. (Id., p. 13.)

The Cities did not interpose objections to any of Applicant's discovery requests on the basis of the period of time covered. Moreover, the Board has stated, "In the trial of this litigation the parties relying upon evidence, either defensively or in their respective cases in chief, which pre-dates the 1965 cutoff date, must be prepared to allow the other parties to follow the evidentiary trail." (Memorandum and Order, pp. 8-9.)

Accordingly, Applicant moves the Board to clarify that the general 1965 cutoff date does not relieve the Cities of their obligation to respond to discovery requests concern-ing periods prior to 1965 that deal with the same general subjects as to which the Board allowed pre-1965 discovery of the Applicant. Set forth in the Appendix is a table contain-ing a list of those general subjects, tne interrogatories and document requests of the Applicant that deal with such subjects, references to comparable Joint Requests or Cities' Requests allowed by the Board to extend back before 1965, and the exact time period authorized by the Board with respect to each general subject. Applicant submits that the same cutoff dates should apply to all discovery requests dealing with similar subjects, no matter which party propounded them.

Discoverv Concerning Natural Gas in This Proceeding The Staff, the Department of Justice and the Applicant have discussed Joint Requests Nos. 79-82, which generally deal with Applicant's natural gas supplies. All three parties accept the principles set forth on pages 32 to 35 of the Board's Memorandum and Order on Discovery.

Applicant withdraws its objections to Joint Requests Nos. 79-82 on the understanding that the Staff and the Department of Justice share its view that while matters which are relevant to issues in this proceeding should not be excluded from discovery in this proceeding simply because they also relate to issues

_4-pending before another forum, matters not otherwise relevant to issues in this proceeding should not be subject to dis-covery in this proceeding merely because they relate to issues arising under the Natural Gas Act. These three parties also share the vie- that discovery in this proceeding should not be undertaken for the principal purpose of obtaining material to be used in another forum.

Applicant is unwilling to withdraw its objections to Cities' Requests Nos. 57-59 and 72-73, which also purport to deal with Applicant's natural gas supplies. Applicant believes that all information of conceivable relevance to issues properly before the Board on this general topic will be produced in response to Joint Requests No. 79-82. It submits that the additional materials sought by the Cities in Requests Nos.

57-59 and 72-73 should not be discoverable here merely because they relate to possible violations of the Natural Gas Act --

which is their obvious focus -- and that the Cities ' apparent effort to utilize the NRC discovery process to obtain informa-tion for use before other federal agencies should not be countenanced.

The Cities are attempting to make the inadequacy of their existing natural gas supplies an issue in this pro-ceeding (Cities' Response to Applicant's Objections, dated December 22, 1978, pp. 18-28). They have alleged that the

Company contributed to their present dif ficulties , inten-tionally or at least under circumstances in which the Company should have known the consequences that would befall the Cities.

To the contrary, the Company contends that the Cities' current shortages of natural gas are due entirely to their own lack of foresight. At the time the Company negotiated long-term guaranteed gas supply contracts, the Cities opted for cheaper, interruptable gas supply contracts.

The Company understands that the studies and negotiations which led to execution of the Cities ' interruptable gas contracts occurred during the mid-1950 's and early 1960 's.

Accordingly, if this matter is to become an issue in the pro-ceeding, the Cities should be required to respond to Applicant's Requests Nos. 136, 142, 142A, 142B, 142C, 142D, 142E and 313-314, which concern the Cities ' gas contracts, for a period that begins earlier than the general 1965 cutoff date. Applicant submits that a 1950 cutoff as to these discovery requests would be appropriate.

Conclusion For the foregoing reasons, Applicant submits that the Board should 1) establish cutoff dates for Applicant's requests to the Cities that are comparable to the cutoff dates it ruled should govern requests directed to the Applicant;

2) sustain Applicant's objections to Cities' Requests Nos. 57-59 and 72-73; and 3) set a 1950 cutoff date for Applicant's requests to the Cities concerning their natural gas supplies.

Respectfully submitted,

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uu l- La Daniel M. Gribbod Herbert Dym Joanne B. Grossman Covington & Burling 888 Sixteenth Street, N.W.

Washington, D.C. 20006 (202) 452-6000 J.A. Bouknight, Jr.

E. Gregory Barnes Lowenstein, Newman, Reis & Axelrad 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 (202) 862-8400 John E. Mathews, Jr.

Jack W. Shaw, Jr.

Mathews, Osborne, Ehrlich, McNatt Gobelman & Cobb 1500 American Heritage Life Building 11 East Forsyth Street Jacksonville, Florida 32202 (904) 354-0624 Attorneys for Florida Power & Light Company March 2, 1979

APPENDIX Comparable Pre-1965 Time Periods For Discovery Requests Comparable Applicant's Requests Requests Allowed Time General Subject Nos. By Board Period Territorial Allocations 196-206, 218 JR 29, CR 12, 1950 -*/

392, 418. 10, 16, 31 Franchise Acquisicions 168, 176, JR 30, 48 1950 --**/

185-193, 397

• • • /

Development Nuclear 101-104, 112, JR 26, CR 22 1955 Capacity; Participation 121 in Nuclear Units

• • • • /

Coordination; Pooling; 13, 35, 36A, JR 8, 24, 1955 Bulk Power Supply 79-80, 82-4, 25, 33, 39, 90-1, 373-4, 41, CR 9 398, 419 Wholesale Policy; 60,67-72A, CR 5, 6 1955 Competition 162-4, 173-4, 194, 388-9, 407, 409-12

• • • • • /

Easily Available 30, 40-1 JR 2, 12 1955 Information; Peak 346 Load Projections

• / 1955 for Cities' Request Nos. 10 and 31.

• • / 1555 for Joint Request No. 48.

• • • / 1960 for Cities' Request No. 22.

• • • • /1960 for JR 39.

• • • • • / 1960 for JR 12.

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

) Docket No. 50-389A Florida Power & Light Company )

(St. Lucie Plant, Unit No. 2) )

CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the following:

Applicant's Memorandum Concerning Discovery have been served on the persons shown on the attached list by hand delivery

• or deposit in the United States mail, properly stamped and addressed on March 2, 1979.

x (J

)  %, y W-tw Joanne B. Grossman Covington & Burling 888 Sixteenth Street, N.W.

Washington, D.C. 20006

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

) Docket No. 50-389A FLORIDA POWER & LIGHT COMPANY )

(St. Lucie Plant, Unit No. 2) )

SERVICE LIST Ivan W. Smith, Esq.

• Melvin G. Berger, Esq.

Chairman, Atomic Safety and Mildred L. Calhoun, Esq.

Licensing Board Departmer.t of Justice U.S. Nuclear Regulatory Commission P.O. Box 14141 Washington, D.C. 20555 Washington, D.C. 20044 Valentine B. Deale

• Robert A. Jablon, Esq.

1001 Connecticut Ave., N.W. 2600 Virginia Avenue, N.W.

Washington, D.C. 20036 Washington, D.C. 20037 Robert M. Lazo, Esq. Jerome Saltzman Atomic Safety and Licensing Chief, Antitrust & Indemnity Board Group U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Docketi.ng and Service Section Office of the Secretary Mr. Robert E. Bathen U.S. Nuclear Regulatory Commission R.W. Beck & Associates Washington, D.C. 20555 Post Office Box 6817 Orlando, Florida 32803

• Lee Scott Dewey, Esq. .

Frederick D. Chanania, Esq. Dr. John W. Wilson David J. Evans, Esq. Wilson & Associates Office of Executive Legal 2600 Virginia Avenue, N.W.

Director Washington, D.C. 20037 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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