ML19263C452
| ML19263C452 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak  |
| Issue date: | 02/06/1979 |
| From: | Clark R, Harris J, Parmenter F JUSTICE, DEPT. OF |
| To: | |
| References | |
| NUDOCS 7902220267 | |
| Download: ML19263C452 (26) | |
Text
7 EW UNITED STATES OF AMERICA '
? E ys ,
NUCLEAR REGULATORY COMMISSION , 'dh I , , -b B_EFORE THE ATOMIC SAFETY AND LICENSING BOARD /
0
- i
) >
In the Matter of ) t
) <j s HOUSTON LIGHTING AND POWER ) Docket Nos.'50-498A ~ ~ - '
CO., et al (South Texas Project, Units 1 and 2)
)
)
{0-499,,.
3
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TEXAS UTILITIES GENERATING ) Docket Nos. 50-445A COMPANY (Comanche Peak Steam ) 50-44GA Electric Station, Units 1 )
and 2) )
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RESPONSE OF DEPARTMENT OF JUSTICE TO TUGCO'S OBJECTIONS AND MOTIONS FOR PROTECTIVE ORDERS REGARDING CERTAIN OF DEPARTMENT'S INTERROdATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS John H. Shenefield Donald L. Flexner Assistant Attorney Deputy Assistant Attorney General. General Antitrust Division Antitrust Division Communications with respect to this document should be addressed to:
Donald A. Kaplan Chief, Robert Fabrikant Assistant Chief, Energy Section Antitrust Division U.S. Department of Justice Washington, D.C. 20530 Judith L. Harris Ronald H. Clark Frederick H. Parmenter Attorneys Energy Section Department of Justice P.O. Box 14141 Washington, D.C. 20044 February 6, 19'i9 780222 o'dlo7
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE Tile ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
)
HOUSTON LIGilTING AND POWER ) Docket Nos. 50-498A CO., et al (South Texas ) 50-499A Project, Units 1 and 2) )
)
TEXAS UTILITIES GENERATING ) Docket Nos. 50-445A COMPANY (Comanche Peak Steam ) 50-446A Electr ic Station, Units 1 )
and 2) )
)
. RESPONSE OF DEPARTMENT OF JUSTICE TO TUGCO'S OBJECTIONS AND MOTIONS FOR PROTECTIVE ORDERS REGARDING CERTAIN OF DEPARTMENT'S INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS I. INTRODUCTION On January 12, 1979, the Department of Justice ("De-partment") served its FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS (" Interrogatories")
upon Texas Utilities Generating Company ("TUGCO"). Subse-quently, the Department agreed informally to a joint 30-day response period both for producing documents and for reply-ing to interrogatories. On December 20, 1978, TUGCO for-mally asked the Board for more time, requesting that the deadline be moved to January 12, 1979. Che Department did not oppose this motion.
On January 12, 1979, the Department was served by mail with the ANSWER OF TEXAS UTILITIES COMPANY AND ITS SUB-SIDIARIES TO THE FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS FROM THE DEPARTMENT OF JUSTICE
("TU's Responses") and with TUGCO'S OBJECTIONS TO AND MOTIONS FOR PROTECTIVE ORDERS REGARDING CERTAIN OF DEPART-MENT'S INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS ( "TUGCO 's Obje ct io ns" ) , to which this pleading responds.
It no time during the period November 22 through January 12, in clu s ive , did counsel for TUGCO indicate to the Department that they had problems with any of the Depart-ment's interrogatories and/ar its document requests.
It was only on January 12, when TUGCO's Objections were filed, that the Department became aware of these problems.
This, of course, made it impossible for the Department to work with counsel for TUGCO to resolve these matters in-formally.
The mostly fr ivolous objections which TUGCO raises, coupled with the insufficient answers it has supplied to several of the Department's interrogatories and its f ailure to provide any documents other than those produced in the case of West Texas Utilities Company, et al., v. Texas Electric Service Company, et al., No. CA-3-76-0633-F (N.D.
Tex., Dallas Div. ) (" civil case"), may well imp a ir the ability of the Department to develop its case withiri the April 9, 1979, closure date for discovery. Without adequate discovery, the Board will not be presented with the fully developed records which it neede in order to render de-cisions in these complex proceedings.
Th is is not the first time the Department has en-countered delays due to actions of TUGCO and/or its counsel.
In the past, TUGCO has substantially slowed the Depart-ment's discovery efforts by its lack of cooperation in scheduling informal document review (three weeks), ir.
delivering copies of the documents requested by the Depart-ment during that review (one month) and in providing a list of purportedly privileged documents (three months). Th is unbroken pattern of recalcitrance has been documented in the Department's monthly progress reports filed with the Board.
Such a course of conduct is at variance with TUGCO's fre-quently stated desire to resolve expeditiously these matters before the Board. 1/
1/ See, e.g., Transcript of December 5, 1978, Pretrial Conference at 31.
- v e .
At one point in its Object ions, TUGCO states that, during the June 21, 1978 Prehearing Conference, the De-partment noted "that it would be working on a proposed f actual stipulation and that it hoped it would be in a position to put forward a draft of such stipulation 'about four months into discovery'" (TUGCO's Objections at 4).
TUGCO then commented that if the Department would come forward with such a draft stipulation, it might be possible to resolve many, if not all, of the disputes sur rounding discovery (See TUGCO's Objections at 5). However, the Department must have command of all the facts pertinent to the proceedings before it can tender a draf t stipulation.
Accordingly, the Department will not be able to tender such a stipulation until TUGCO f ully and f aithf ully discharges its discovery obligations to the Department.
II. RESPOJtgE TO TUGCO'S OBJECTIONS TUGCO's Objections to the Department's interrogatories fall into three categories: (a) those that relate to the definitional section of the interrogatories; (b) those that pertain to the accompanying ins t r uc t io ns ; and (c) those that relate to specific interrogatories and/or document requests.
In this Response, the Department will discuss each of-these three categories separately and will demonstrate that, in s
each instance, TUGCO's objections should be overruled and its motion for a protective order denied.
A. TUGCO's Objections to the Departnqnt's Definitions TUGCO raises two pr incipal objections with respect to the " Definitions" section of the Department's Interroga-tories (see Interrogatories, Section A, at 2-5). TUGCO's first objection relates to definition A.3, and will be addressed in our discussion of TUGCO's objections to the Department's ins t ruc t io n s .
TUGCO's other objection in this first category pertains to definition A.8, which provides, in pertinent part, that:
Requests concerning a subject or item should be understood to include possible or contem-pla'ted actions as to such subject or item.
(Interrogatories at 5.)
TUGCO would have the Department append language requiring "no more than a reasonable inquiry of likely officers as to their recollection of contemplated actions, and limited to such contemplated actions as reached the stage of discussion among senior management" (TUGCO's Objections at 3).
The Department has no objection to TUGCO's interpreting the definition at issue so as to require only a reasonable inquiry of those persons likely to be possessed of relevant knowledge. Indeed, the NRC discovery rules do not require
more than that, and the Department expects no more.
Because of the varying interpretations which can be placed upon the phr ase " senior management," the Department does object, however, to l im i t ing responses to "such contemplated actions as reached the stage of discussion among sen ior management."
B. TUGCO'S Objections to the Department's Instructions
- 1. The Department's Instruct ion, Contained in Section C of Its Interrogatories, Requiring that Purportedly Privileged Documents Be Delivered to the Board Under Seal, Is Basec Upon Sound Practical and Policy Cons iderat ions and Is Not Unduly Burdensome The first instruction contained in the Department's Interrogatories to which TUGCO objects is that portion of Section C, "Per iod Covered and Pr ivilege", wh ich reads:
All documents for which pr ivilege is cla imed shall be submitted to the Licensing Board under seal no later than the last day for this document production. (Interroga-tories at 6.)
TUGCO maintains that this procedure will unnecessarily burden the Board. (See TUGCO's Objections at 3.) In a list ma iled to the Department in late December, 1978, TUGC0 inaicated that approximately 96 pages of documents had been excepted, on the grounds of privilege, from the in-formal document production earlier made to the Department.
~. _ _ .---. . ..
To date, TUGCO has identified no additional purportedly pr ivileged documents. 2/ Whetber the delivery of so few documents would constitute a burden is for the Aoard, not TUGCO, to dec ide.
Even more importantly, there are sound practical and policy considerations justifying this instruction. Those considerations are discussed at le ng th in the RESPONSE OF THE DEPARTMENT OF JUSTICE TO HOUSTON LIGHTING & POWER COMPANY'S OBJECTIONS AND MOTION FOR A PROTECTIVE ORDER REGARDING THE DEPARTMENT'S DISCOVERY REQUEST, Section IIC, at 9-12, being filed simultaneously with this pleading, and need not be repeated here. Suffice it to say that, for the reasons discussed there, TUGCO's objections to the instruc-tion contained in Section C of the Department's intscroga-tories should be overruled.
- 2. The Department's Instruction, Permitting TUGCO to Identify Documents Already Provided to the De-partment in Lieu of Furnishing Further Copies, is Neither Unduly Burdensome Nor Inconsistent With the Board's Order Governing Discovery TUGCO further objects to the Department's instruction contained in Sect ion E .1, as well as in Definition A.3, 2/ Nor has TUGCO produced to the Department any additional documents. Th is is one of the subjects addressed in detail in the Department's motion to compel, wh ich is being filed along with this Response.
which directs that where requested documents have already been produced to the Department informally, it is suf fic ient
~
for TUGCO to identify those documents ( ind ic a t ing to which requests they respond) rather than to provide extra copies of them. TUGCO maintalns that this instruction, included by the Department to spare needless duplication, is " burden-come and uncalled for and inconsistent with the letter and spirit of the stipulation of the pc: Lies regard ing discovery in other proceedings and the Licensing Board order on the same subject." (TUGCO's Objections at 3-4.)
TUGCO's object ion is bottomed on the notion that it should not be asked to perform any tasks in connection with these proceedings which it has not already performed in connection with other previous or pending actionc. More-over, TUGCO seems to contend that the Department is obliged to accept the fruits of those previously performed tasks in the exact form in which they were offered to opposing parties in the other actions.
TUGCO's arguments are wholly without merit. First, the July 13, 1978 Order of the Board (embodying the parties' stipulation) cannot be construed as supporting TUGCO's position. To the contrary, directive 3 of that Order (at 7) mandates that any party shall be allowed to obtain dis-covery beyond that obtained in other ac t io ns , and direct ive 5 ( id. ) imposes upon TUGCO the obligation to "tooperate to provide the other parties to this proceeding mutually convenient access to the materials covered by this order and the opportunity to obtain copies of such ma ter ials" .
The Departrent, following both the spirit and the letter of this Order, began its discovery effort last fall by informally reviewing, and requesting copies of, the documents produced by TUGCO (,and others) in connec-tion with the civil case. Those documents had not been structured according to topic, nor did they seem to relate to particular discovery requests in the civil case.
That this was considered a satisfactory discovery ef fort in another action does not foreclose the Department in these proceedings f rom d irecting that, in response to its formal discovery requests, documents be produced in a meaningful fashion, that is by ident ifying the interrogatory to wh ich they rciate. This is nothing more than the Department would ask in any proceeding and it does not believe it must accept less simply because the parties here were previously in-volved in somewhat similar litigation.
TUGCO complains that:
for the Department to cast upon TUGCO the burtien of determining which of the documents the Department requested and already has should be matched with what questions in its current interrogatories and document requests is for the Department to have TUGCO do its indexing. It would be unduly burdensome and expens ive for TUGCO to have to match up documents already pr ov id c J with after-the-fact questions, especially where the questions do not reflect an effort to avoid duplicative discovery. (TUGCO's Objections at 4).
It stretches credulity to believe that TUGC0 could respond fully to the Department's interrogatories without going through all of its documents and, by matching up those documents with the Department's ind iv idu al requests, as-certain which of the documents have already been produced to the Department (pursuant to its informal dis-covery),and which now need to be produced.
Contrary to TUGCO's assertion, the interrogatories were expressly designed to avvid duplicative discovery. Not once has TU identified the particular responnes wh ich allegedly are duplicated by the Department's interrogatories.
Nonetheless, despite the Department's attempt to avoil duplicative requests, despite the dif ferences between these proceedings and the civil case and despite the f act that d iscov ery in the civil case closed over a year and a half ago, no new documents were produced by TUGCO in response to the Department's interrogatories. Moreover, there was no indication or assertion by TUGCO that it had made any file search of materials produced since discovery in the civil case closed on July 15, 1977, or that it had searched its f iles relating to new arean* explored in the Department's interrogatories.
In order for the Department to be assured that a complete search has been undertaken in connection with the Department's interrogatories, it is essential that TUGCC indicate to which requests particular documents, including those previously produced, r es po nd . The Department main-tains that Instruction E.1, and the procedures it es-tablishes for ident ifying documents and relating them to particular discovery requests, are reasonable, necessary and not unduly burdensome.
C. TUGCO's Objections to Specific Requests in the Department's Interrogatories Finally, TUGCO objects to particular interrogatories and document requests contained in the Department's inter-rogatories numbered 4, 7, 9, 16, 20, 21, 23 and 25. TUGCO's objections to each of these interrogator ies will be dis-cussed individually below. Some of those objections lack any proper foundation; others can be easily met without the Board issuing a protective order. The Department again reitera es that, had TUGCO indicated during the period between November 22 and January 12 that it perceived problems with the Department's in te r r oga to r ie s, the Depart-ment would have attempted to alleviate those problems.
- 1. Interrogatory 3 TUGCO first objects to the Department's third inter-rogatory, which states:
(a) Describe in detail the reasons, factors or policies which were considered by IIL&P and/or TESCO in determining to disconnect on May 4, 1976, from other Electric Utilities with wh ich they had been interconnected.
(b) Provide all documents which relate to the response to this interrogatory. (Interroga-tories at 9.)
TUGCO objects to this interrogatory because it employs the phrase "[d}escribe in detail". This phrase simply expresses the general good f aith requirement which must be met by any party responding to in te r roga to r ies, namely that as much detail must be provided as is reasonable. The first set of interrogator ies filed in these proceedings by TUGCO, along with !!ouston Lighting and Power Company, employed a similat phrase, "specify the exact details", in questions 17 and 20(b). Such phraseology is both common and appropriate in discovery requests. Any objection by TUGCO to the use of that phrase is frivolous and should be overruled.
- 2. Interrogatory 4 TUGCO next objects to the Department's fourth inter-rogatory, which reads: ,
In order of their relative importance, describe the underlying policies or bases upon which HL&P and TU justify their refusal to engage in the interstate transmission or reception of electrical power or energy or to be interconnected with any other Electric Ut ility engaged in interstate commerce; provide any documents which state or describe these policies or bases. (Interrogatories at 9.)
TUGCO objects to that portion of this interrogatory which directs that its reasons for particular conduct be ranked "in order of their relative importance." Simply listing a universe of facts which may have led to a certain course of conduct provides an imbalanced and incomplete explanation of why that particular course of conduct was undertaken.
The interrogatory asks only that TUGCO distinauish between determinative and non-determinative reasons or policies.
Such a request is not unduly burdensome and does not justify the issuance of a protect 1ve order. Th is ob]ect ion should, therefore, be overruled.
- 3. Interrogatory 7 The Department's seventh interrogatory reads:
(a) Identify every occasion upon which TESCO either threatened to open or in fact did open any or all of its in te r connect io ns with West Texas Utilities Co. (b) With
respect to each such occasion identified in response to (a), describe and/or identify all individuals involved in either threatening to open or in actually opening interconnections, the surrounding circumstances, the substance of any such threats, the rec ipient(s) of any threats, and the response (s) of all involved individuals or entities to any threatened or actual disconnections. (c) In addition, identify and describe each reason, justifica-tion, or policy which led TESCO either to threaten disconnection or actually to discon-nect from WTU. (d) Provide all documents which relate to the response to this inter-rogatory. (Interrogatories at 10-11).
TUGCO objects to this interrogatory because of its use of the term " threats," maintaining that such language is argumentative. Ironically, TUGCd employs the very same term (" threaten") in response to interrogatory 3(a) when it characterizes purported conduct of Central and Southwest Corporation (TU's P.esponses at 3). Th is phrase is descrip-t ive , not argumentative, and the suggested substitutes
(" advised" or " notified") are not acceptable because they do not convey the idea that a sanction would be im-posed, namely d isconnection, if a particular course of conduct were embarked upon. Consequently, TUGCO's objection to this interrogatory should be overruled. ,
- 4. Interrogatory 9 The Department's ninth interrogatory states:
(a) Identify each and every occasion, if any, upon which HL&P and/or TU communicated with West Texas Utilities Company or Central Power & Light Company the subject of possible interstate operation by WTU or CP&L, g iv ing the date(s) of any such communication (s), the suriounding cir cumstances, the ind iv idu al ( s )
so communicating, the recipients of any such communication (s) and the response (s), if any, of those recipients. (b) Provide all docu-ments which relate to the response to th is interrogatory. (Interrogatories at 12.)
TUGCO claims "there can be no assurances that all occasions of communication and all documents involved have in fact been obtained despite good faith efforts to that end."
(TUGCO's Objections at 6). This argument overlooks the fact that the NRC rules and the Department's interrogatories require only that a party make a good faith effort to respond in a reasonably completc fashion. Consequently, TUGCO's object ion and request for a protective order should be overruled.
- 5. Interrogatory 16
- The Department's sixteenth interrogatory reads:
(a) State for every wholesale customer of HL&P and TU: the full name or title of the customer; complete address of the customer; and the amount of wholesale power purchased by that customer by year for the period 1950-1978. (b) State all requests rece ived by HL&P and/or TU for wholesale service whether or not such service was ever provided, specifying when the request was rece ived, by whom the request was made, and whether the requesting party was at the time of the request engaged in interstate commerce.
(c) Provide all documents relating to the response to this interrogator". (Interroga-tories at 15.)
4 TUGCO's objection to this interrogatory is, in effect, a request for additional time in which to respond. IIad this matter been brought totheDepartment'sattent1}onduring the period when TUGCO was drafting its response, a mutually agreeable arrangement might have been reached which would not have impeded the discovery process. The Department has no objection to a reasonable extension of time in wh ich to compile the information sought. The Department also has no objection to allowing some flexibility regarding the form in wh ich the requested data is furnished, pr ov id ed that TUGCO's ultimate response contains every item of information sought in the interrogatory. Again, TUGCO's objection and request for a protective order are unnecessary and should be overruled.
- 6. Interrogatory 20 The Department's twentieth interrogatory states:
In reference to the formation of ERCOT, identify each occasion upon which any employee of HL&P or TU engaged in any communication with any other party, individual or entity, specifying the substance of each such communi-cation, the employee of HL&P or TU who made it, the date, the recipient of the communi-cation, and the recipient's response, if any, relating to:
(a) the advisability of limiting member-ship in ERCOT to Electric Utilities engaged only in intrastate commerce; (b) concern about possible antitrust implications of so limiting membership to intrastate Electric Utilities only; (c) alternative devices or understandings, either formal or informal, whereby Electric Utilities engaged in interstate commerce could be foreclosed from membership in ERCOT without th is being made an explicit requirement for membership; and (d) provide all documents relating to (a)-
(c) above. (Interrogatories at 16-17.)
TUGCO's object ion, i.e., that it would be virtually impos-sible to catalogue every communication relating to the subject of the interrogatory, is similar to its objec-tion to interregatory 9. The Department therefore re-iterates here what it said there. Nothing less than a good faith effort to respond in a reasonably complete fashion is acceptable, and a good faith effort to uncover evidence of any and all communications regarding the subjects described, whether or not in written form, is all the interrogatory asks.
As for TUGCO's objection to identifying which of its documents respond to'the twentieth interrogatory, the Department would ask the Board to consider the arguments set forth in Section II.B 2 of this Response.
- 7. Interrogatory 21 The Department's twenty-first interrogatory reads:
In reference to the agreement, under-standing, or contractual arrangements whereby HL&P and TU reconnected following their disconnection of May 4, 1976, identify and specify in detail:
(a) the occasions, instances, and dates upon wh ich negotiations between HL&P and TU, employees relating to possible reconnection occurred; (b) the precise agreement, und e rs ta nd ing or contractual arrangement whereby the reconnection was ef fected; (c) any conditions that HL&P and/or TU insisted upon, requested or solicited from the other as a requircment before reconnection could be ef fected; (d) any contacts or communications from Electric Utilities other than HL&P and TU pertaining either to recor.nect ion or new interconnections, and the response of HL&P and TU to those communications; (e) any conditions that HL&P or TU insisted upon, requested or solicited from other Electric Utilities as a requirement before
'either Company would consider reconnection; and (f) provide all documents which relate to (a)-(e) above. (Interrogatories at 17-18.)
TUGCO's objection to interrogatory 21, namely that it has been fully addressed in the discovery materials and testimony f rom the civil case, again presupposes that the civil case is equivalent to this proceeding. Th is assertion overlooks the fact that TUGC0 has an obligation to provide acceptable and complete interrogatory responses in this pr oceed ing . The mere fact that testimony in another forum may relate to this interrogatory is not an acceptable interrogatory response. Consequently, TUGCO's objection should be overruled.
- 8. Interrogatory 23 The Department's twenty-third interrogatory states:
(a) Describing the circumstances and prov id ing the date, persons participating, ano f acilities inspected, identify each occasion upon which employees of HL&P and/
or TU (including attorneys retained by either Company) visited the generating plants, relays, installations, or equip-ment of the other Company, either alone or accompanied by employees of the Company own ing the f acility, for the purpose of inspecting any relays, mechanical devices, or other equipment designed to prevent the flow of electrical power or energy in interstate commerce; (b) Describing the circumstances and
,providing the date, persons participating, and f ac il it ies inspected, identify each occasion upon which employees of HL&P or TU visited the generating plants, relays, installations, or equipment of any other company, entity or Electrical Utility (i.e., other than HL&P or TU) for the purpose of inspecting any relays, mechanical devices, or other equipment designed to prevent the flow of electrical power or energy in interstate commerce; (c) Identif y each occas ion, occurrence, or date upon which any employee of HL&P or TU requested, provided or received any pamphlets, printed material, reports, or other wr itten matter, pertaining to the installation or maintenance by any Electrical Utility, of any relays, mechanical devices, or other equipment designed to prevent the flow of electrical power or energy in interstate commerce, specifying the date, requested material, material received or pr ov id ed , and the ind iv idu als involved; (d) estimate how much money has ocen expended, if any, since 1965 by IIL&P and TU for the purpose of seek ing to inspect relays, mechan ical devices, or other equipment of another Electrical Utilit,v or entity to ascertain whether any electr ical power or energy was flowing from that equip-ment into interstate commerce; and (e) provide all documents which relate to (a)-
(d) above. (Interrogatories at 19-20.)
TUGCO objects to this interrogatory on the grounds of its burdensomeness and, further, that it would require TUGCO to conduct a study in erder to respond. TU's summary
. response is completely unacceptable. It does not id en t if y any i nd iv idu als , occas io ns , locations, or facilities in-spected. Wh ile the Department recognizes that it may not be possible for TUGCO to identify and document each relevant inspection, it is clear that TUGCO is in the best position to ascertain who made any such inspections and the dates and details of such inspections. The interrogatory and the discovery rules direct only that reasonable ef forts guided by good faith be undertaken to ascertain the details regard-ing any inspections relevant to the Department's twenty-third interroaatory. The summary response offered does not satisfy this standard.
The Department does not agree that a study would have to be performed in order to answer this interrogatory.
Nonetheless, if TUGCO will provide the basic data, the Department will assess it.
TUGCO's objection and request for a protective order with respect to interrogatory 23 should be overruled, and TUGCO should be directed to answer the interrogatory in accordance with the good faith standard indicated above.
- 9. Interrogatory 25 The Department's twenty-fifth interrogatory states:
(a) Describe in detail how the desire, practice, preference, er policy of HL&P and TU to operate exclusively in intra-state commerce has affected, influenced, controlled, or modified the design of physical f acilit ies, plants, trans-mission facilities, or any other con-struction engaged in by the two Companies; (b) state whether or not the maintenance of intrastate status or operation on the part of HL&P and TU had any impact, influence, effect, or consequences upon the cost of the physical facilities, plants, transmission f acilities, or
, other construction costs borne by the two Companies; (c) indicate an approxi-mate figure representing how much additional cost, if any, was borne by -
HL&P and TV since 1965 in undertaking new construction or maintenance of existing facilities as a result of any policy or desire to remain exclusively in intrastate operation; (d) state in detail what assumptions and calcula-tions were employed to prepare a response to subsection (c) of this interrogatory; and (e) identify every ind iv idu al ,
person or employee of HL&P or TU who decided, or participated in decid ing ,
to design, construct, or bu ild any f acility or modify any existing f acility in such a manner that the owner Company would not become engaged in interstate commerce. (Interrogatories at 20-21.)
TUGCO objects to this interrogatory on the grounds that it is based on a hypothetical premise, would require a study to be performed, and that it is argumentat ive. If TUGCO believes that this interrogatory rests on a hypothetical premise, TUGCO should simply state its belief and supply the assumptions and data that led it to reach that' conclusion.
Given the continuous planning and engineering studies that utilities of the size of Texas Utilities Company must undertake, the Department doubts that TUGCO would have to perform a new study in order to answer this interrogatory.
If the contrary is true, TUGCO should supply the basic data to enable the Department to make its own analysis.
Consequently, TUGCO's objection and request for a pro-tective order with respect to interrogatory 25 should be overruled, and TUGCO should be directed to answer the interrrgatory.
III. CONCLUSION For the reasons stated above, the Department urges this Board to overrule all of TUGCO's objections to the Department's Interrogatories and to deny TUGCO's motion for a protective order.
Respectfully submitted, n ,
'l Y(1, l>~ "
ll r n ,
Jud'ith L. Harris Ronald H. Clark Frederick H. Parmenter Attorneys, Energy Section Antitrust Division L.S. Department of Justice Washington, D. C. 20530 February 6, 1979 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
IlOUSTON LIG!! TING AND POUCR ) Docket Nos. 50-498A CO., et al.(South Texas ) 50-499A Project, Units 1 and 2) )
)
TEXAS UTILITIES GENERATING ) Docket Nos. 50-445A COMPANY (Comanche Peak Steam ) 50-446A Electric Station, Units 1 )
and 2) )
)
CERTIFICATE OF SERVICE I hereby certify that service of the foregoing RESPONSE OF DEPARTMENT OF JUSTICE TO TUGCO'S OBJECTIONS AND MOTIONS FOR PROTECTIVE ORDERS REGARDING CERTAIN OF DEPARTMENT'S INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS has been made on the following parties listed hereto thin 6th day of February, 1979, by depositing copies thereof in the United States mail, first class, postage prepaid.
Marshall E. Miller, Esquire Richard S. Salzman, Esquire U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D. C. 20555 Washington, D. C. 20555 Michael L. Glaser, Esquire Jerome E. Sharfman, Esquire 1150 17th Street, N.W. U.S. Nuclear Regulatory Washington, D. C. 20036 Commission Washington, D. C. 20555 Sheldon J. Wolfe, Esquire U.S. Nuclear Regulatory Chase R. Stephens, Jacretary Commission Docketing and Service Branch Washington, D. C. 20555 U.S. Nuclear Regulatory Commission Samuel J. Chilk, Secretary Washington, D. C. 20555 Office of the Secretary of tne Commission Jerome Saltzman U.S. Nuclear Regulatory Chief, Antitrust and Commission Indemnity Group Washington, D. C. 20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D. C. 20555 Appea] Board Panel U.S. Nuclear Regulatory Commission Washington, D. C. 20555
Roff Hardy Michael I. Miller, Esquire Chairman and Chief Executive Richard E. Powell, Esquire Officer David d. Stahl, Esquire Central Power and Light Thomas G. Ryan, Esquire Company Isham, Lincoln & Beale P. O. Box 2121 One First National Plaza Corpus Christi, Texas 78403 Chicago, Illinois 60603 G. K. Spruce, General Manager Roy P. Lessy, Esquire City Public Service Board Michael Blume, Esquire P.O. Box 1771 U.S. Nuclear Regulatory San Antonio, Texas 78203 Commission Washington, D. C. 20555 Perry G. Brittain President Jerry L. Hatria, Esquire Texas Utilities Generating City Attorney, Company Richard C. Balough, Esquire 2001 Bryan Tower Assistant City Attorney Dallas, Texas 75201 City of Austin P.O. Box 1088 R.L. Hancock, Director Austin, Texas 78767 City of Austin Electric Utility Department Robert C. McDiarmid, Esquire P. O. Box 3 088 Robert A. Jablon, Esquire Austin, Texas 78767 Spiegel and McDiarmid 2600 Virginia Avenue, N.W.
G. W. Oprea, Jr. Washington, D. C. 20036 Executive Vice President Houston Lighting & Power Dan H. Davidson Company City Manager P. O. Box 1700 City of Austin Houston, Texas 77001 P. O. Box 1088 Austin, Texas 78'/67 Jon C. Wood, Esquire W. Roger Wilson, Esquire Don R. autler, Esquire Matthews, Nowlin, Macfarlane 1225 Southwest Tower
& Barrett Austin, Texas 78701 1500 Alamo National Building San Antonio, Texas 78205 Joseph Irion Worsham, Esquire Merlyn D. Sampels, Esquire Joseph Gallo, Esquire Spencer C. Relyea, Esquire Richard D. Cudahy, Esquire Worsham, Forsythe & Sampels Robert H. Loeffler, Esquire 2001 Bryan Tower, Suite 2500 Isham, Lincoln & Beale Dallas, Texas 75201 Suite 701 1050 17th Street, N.W. Joseph Knotts, Esquire Washington, D. C. 20036 Nicholas S. Reynolds, Esquire Debevoise & Liberman 806 15th Street, N.W.
Suite 700 Washington, D. C. 20005
Douglas F. John, Esquire R. Gordon Gooch, Esquire Akin, Gump, Hauer & Feld John P. Mathis, Esquire 1100 Madison Office Building Baker & Botts 1155 15th Street, N.W. 1701 Pennsylvania Avenue, N.W.
Washington, D. C. 20024 Washington, D. C. 20006 Morgan Hunter, Esquire Robert Lowenstein, Esquire McGinnis, Lochridge & Kilgore J. A. Bouknight, Esquire 5th Floor, Texas State Bank William J. Franklin, Esquire Building Lowenstein, Newman, Reis, 900 Congress Avenue Axelrad & Toll Austin, Texas 78701 1025 Connecticut Avenue, N.W.
Washington, D. C. 20036 Jay M. Galt, Esquire Looney, Nichols, Johnson E. W. Barnett, Esquire
& Hayes Charles G. Thrash, Jr., Esquire 219 Couch Drive J. Gregory Copeland, Esquire Oklahoma City, Oklahoma 73101 Theodore P. Weiss, Jr., Esquire Baker & Botts Knoland J. Plucknett 3000 One Shell Plaza Executive Director Houston, Texas 77002 Committee on Power for the Southwest, Inc. Kevin B. Pratt, Esquire 5541 East Skelly Drive Assistant Attorney General Tulsa, Oklahoma 74135 P.O. Box 12548 Capital Station John W. Davidson, Esquire Austin, Texas 78711 Sawtelle, Goode, Davidson
& Tioilo Frederick H. Ritts, Esquire 1100 San Antonio Savings Law Offices of Northcutt Ely Building Watergate 600 Building San Antonio, Texas 78205 Washington, D.C. 20037 N. S. Robson General Managet South Texas Electric p -
j J* - / W, /AV Cooperative, Inc. 7/ltiLOh Route 6, Building 102 Judith L. Harris, Attorney Victoria Regional Airport Energy Section Victoria, Texas 77901 Antitrust Division Department of Justice