ML19263D632

Objections & Motion for Protective Orders by Tx Util Generating Co Re Central Power & Light'S First Set of Interrogatories & Request for Production of Documents.Asks Board to Defer Ruling.W/Certificate of Svc

ML19263D632
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	03/28/1979
From:	Knotts J DEBEVOISE & LIBERMAN
To:
References
NUDOCS 7904130085
Download: ML19263D632 (8)

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PIII?T,TC noc7p UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

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HOUSTON LIGHTING AND POWER CO., p. oo Docket Nos. 50-498A et al. og 50-499A A

(South Texas Project, Units yg f>)

1 and 2) E yh ,

s b pY ^$ i_;lDocket Nos. 50-445A TEXAS UTILITIES GENERATING COMPANY, e c al.

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ghb) 50-446A db (Comanche Peak Steam Electric c" [ip , ,

Station, Units 1 and 2)

TUGCO'S OBJECTIONS AND MOTION FOR PROTECTIVE ORDERS WITH REGARD TO CP&L'S FIRST SET OF INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS On February 23, 1979, the Centra) Power & Light Company, an intervenor in the South Texas proceeding, and'also one of the intervenors (along with Central and Southwest Corporation, et al) in the Comanche Peak proceeding, served by mail interrogatories and requests for production of documents to TUGCO, et al., which is a party intervenor in South Texas and is the aoplicant in Comanche Peak. By order of March 13, 1979, this Board approved March 28, 1979 as the date by which TUGCO could answer or other-wise plead with respect to these interrogatories and document requests. In accordance with the Commission's Rules of Practice and in order to protect its rights under 10 C.F.R. 52.740(f),

TUGCO submits these objections and request for protective orders.

TUGCO is mindful of the Board's several orders regarding disagreements over discovery and of the related discussions at the March 20, 1979 prehearing conference. TUGCO believes that vso413Co8f

it is incumbent upon it and CP&L to attempt to reduce their areas of apparent disagreement before putting numerous objections and related pleadings before the Board for formal resolution.

Accordingly, while TUGCO is filing its objections and motions for protective order herein as required by the rules, it asks the Board to defer ruling and defer the schedule for responsive pleadings by CP&L while the parties attempt to resolve their disagreements without requiring formal Board action.

TUGCO would object generally to any effort by CP&L to elicit privileged or other confidential information, although we do not interpret the interrogatories as seeking the same, except as otherwise noted. TUGCO's specific objections to each interrogatory and the specific relief requested by way of pro-tective orders are set out seriatim below.

CP&L's Interrogatories Nos. 1, 2 and 11 There are several problems with these interrogatories which make them impossible to answer. It is not at all clear to TUCCO, et al exactly what " Mode 4 Operation" means.

The concept of " Mode 4" has been an ill-defined and everchanging one. The question does not provide sufficient information to permit an intelligent response.

Therefore, TUGCO objects to Interrogatories Nos. 1, 2 and 11 on the grounds that they do not contain sufficient information for TUGCO to make an intelligenc response. TUGCO of course reserves the right to make further objections if and when specific information is supplied.

, Interrogatories Nos. 12 and 13 It is impossible to provide meaningful answers to these questions without knowing the precise factual situation postu-lated or assumed to exist. The concept of " adverseness" is necessarily a relative one. TUGCO has no way of knowing whether a consequence would be relatively adverse or not unless it is told what the alternative is. Thus any particular disconnection might be better or worse than remaining connected depending on the circumstances leading to the disconnection. Moreover, given the order of the Texas Public Utilities Commission in Docket 14, disconnection would require PUC approval and thus is hypothetical and speculative and is in any event beyond the control of any particular utility.

For these reasons, **:GC? objects to the interrogatory and requests a protective order to the effect that TUGCO not be required tn answer.

Interrogatory No. 17 ro the extent that this interrogatory calls for confidential commercial and financi al information which has not been heretofore publicly disclosed, TUGCO claims privilege and asserts that all appi.icable criteria for privileged confi-dential financial informttion are met. TUGCO will enter into discussions with CP&L tc attempt to resolve this matter. In any event, the confidential material does not appear relevant.

In Kansas Gas and Electric Company (Wolf Creek Generating Station Unit No. 1), 3 NRC 408 (1976), the Appeal Board set out the standards for protective orders regarding proprietary

information which had earlier been developed in the ECCS rule-making proceeding. Under those standards, the party claiming entitlement to protective treatment for proprietary information should demonstrate that: (1) the information in question is of a type customarily held in confidence by its originator; (2) there is a rational basis-1/ for so customarily holding it in confidence; (3) it has in fact been kept in confidence, and (4) it is not found in public sources. In this proceeding, the proprietary information is contained in forecasted budgets which are prepared for internal use only, protection is sought for data which has in fact not been disclosed and is not found in public sources, the budgets are of the same type customarily held in confidence by business organizations including electric utilities, the rational basis inheres in potential injury to business, including sale of securities, and disclosure would be injurious in a clearly defined and substantial fashion to the business of TUCS. A more detailed basis for the assertion of privilege can be set forth by affidavit if that becomes necessary after our discussions regarding confidentiality and relevancy with CP&L.

Interrocatory No. 26 This Board has already directed that the parties need not disclose to each other prospective witnesses whom a party

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1/ The Appeal Board has indicated that the rational basis test goes to a showing that the public disclosure of the allegedly proprietary information would work a clearly defined and serious injury to the business of the applicant for protective order. 3 NRC at 417, n.13.

. has interviewed or otherwise contacted but has decided not to call. (March 20, 1979 Prehearing Conference Tr. 183-185).

Although TUGCO, et al have not contacted any prospective out-side witness and have therefore no one in the protected category at the present time, TUGCO by so answering does not wish to be taken to have waived the benefit of the Board's ruling already noted, particularly in view of the continuing nature of the interrogatories. No further order seems required.

es ectfully submitted,

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x LvENv Josep B. Knotts, r.

DEBEVOISE & LIBERMAN

' Seventeenth Street, 17d Washington, D.C. 20036 J. Irion Worsham Merlyn D. Sampels Spencer C. Relyea k GSHAM, FORSYTHE & SAMPELS 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 Date: March 28, 1979.

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

)

HOUSTON LIGHTING AND POWER CO., ) Docket Nos. 50-498A

_e t _a l . ) 50-499A (South Texas Project, Units )

1 and 2) )

)

TEXAS UTILITIES GENERATING ) Docket Nos. 50-445A COMPANY, _e t _a l . ) 50-446A (Comanche Peak Steam Electric )

Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "TUGCO's Objections and Motion for Protective Orders with Regard to CP&L's First Set.of Interrogatories and Request for Procuction of Documents" in the above captioned matters, were served upon the following persons by deposit in the United States mail, first class postage prepaid this 28diday of March,1979.

Marshall E. Miller, Esq. Mr. Jerome D. Saltzman U.S. Nuclear Regulatory Chief, Antitrust and Commission Indemnity Group Washington, D.C. 20555 Nuclear Reactor Regulation U.S. Nuclear Regulatory Michael L. Glaser, Esq. Commission 1150 17th Street, N.W. Washington, 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 Worsham, Forsythe & Sampels Washington, D.C. 20555 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 Atomic 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 Chase R. Stephens San Antonio, Texas 78205 Docketing and Service Branch U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Charles G. Thrash, Jr., Esq. Don R. Butler, Esq.

E.W. Barnett, Esq. Sneed, Vine, Wilkerson, Theodore F. Weiss, Esq. Selman & Perry J. Gregory Copeland, Esq. P.O. Box 1409 Baker & Botts Austin, Texas 78767 3000 One Shell Plaza Houston, Texas 77002 Jerry L. Harris, Esq.

Richard C. Balough, Esq.

R. Gordon Gooch, Esq. City of Austin John P. Mathis, Esq. P.O. Box 1088 Baker & Botts Austin, Texas 78767 1701 Pennsylvania Avenue, NW Washington, D.C. 20006 Don H. Davidson City Manager Roy P. Lessy, Jr., Esq. City of Austin Michael B. Blume, Esq. P.O. Box 1088 U.S. Nuclear Regulatory Austin, Texas 78767 Commission Washington, D.C. 20555 Robert Lowenstein J. A. Bouknight, Jr.

Roff Hardy William J. Franklin Chairman and Chief Executive Lowenstein, Newman, Reis &

Officer Axelrad Central Power and Light Company 1025 Connecticut Avenue, N.W.

P.O. Box 2121 Washington, D.C. 20036 Corpus Christi, Texas 78403 John W. Davidson, Esq.

bhr. Perry G. Brittain Sawtelle, Goode, Davidson &

President Tioilo Texas Utilities Generating 1100 San Antonio Savings Company Building 2001 Bryan Tower San Antonio, Texas 78205 Dallas, Texas 75201 Douglas F. John, Esq.

R.L. Hancock, Director Akin, Gump, Haver & Feld City of Austin Electric Utility 1100 Madison Office Building P.O. Box 1086 1155 15th Street, N.W.

Austin, Texas 78767 Washington, D.C. 20005 G.W. Oprea, Jr. Morgan Hunter, Esq.

Executive Vice President McGinnis, Lockridge & Kilgore Houston Lighting & Power Fifth Floor, Texas State Company Bank Building P.O. Box 1700 900 Congress Avenue Houston, Texas 77001 Austin, Texas 78701 Judith Harris, Esq. Richard D. Cudahy, Esq.

Ronald Clark, Esq. Joseph Gallo, Esq.

U.S. Department of Justice Robert H. Leoffler, Esq.

Antitrust Division Isham, Lincoln & Beale P.O. Box 14141 1050 17th Street, N.W.

Washington, D.C. 20044 Suite 701 Washington, D.C. 20036

Michael I. Miller, Esq. Kevin B. Pratt, Esq.

Richard E. Powell, Esq. Attorney General's Office David M. Stahl, Esq. State of Texas Thomas G. Ryan, Esq. P.O. Box 12548 Isham, Lincoln & Beale Austin, Texas 78711 One First National Pls .za Chicago, Illinois 60603 Frederick H. Ritts, Esq.

William H. Burchett, Esq.

Bill D. St. Clair, Esq. Northcutt Ely McGinnis, Lockridge & Kilgore Watergate 600 Building Fifth Floor, Texas State Bank Washington, D.C. 20037 Building 900 Congress Avenue Austin, Texas 78701 W.S. Robson General Manager South Texas Electric Cooperative, Inc..

Route 6, Building 102 Victoria Regional Airport Victoria, Texas 77901 Robert C. McDiarmid, Esq.

Robert Jablon, Esq.

2600 Virginia Avenue, N.W.

Washington, D.C. 20037

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b LM Jpseph B. Knotts, Jr.

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