ML19263E311
| ML19263E311 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 04/25/1979 |
| From: | Rader R, Wetterhahn M CONNER, MOORE & CORBER |
| To: | |
| References | |
| NUDOCS 7906080141 | |
| Download: ML19263E311 (29) | |
Text
s,'j V ~ N 9 NRC PUBLIC DOCU3ENT ROON q , d'0g UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION j'pf,s
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In the Matter of )
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HOUSTON LIGHTING AND POWER COMPANY ) Docket Nos. 50-498A THE CITY OF SAN ANTONIO ) 50-499A THE CITY OF AUSTIN and )
CENTRAL POWER AND LIGHT COMPANY )
)
(South Texas Project, Units Nos. )
1 and 2) )
MOTION BY RESPONDENT GULF STATES UTILITIES COMPANY FOR A PROTECTIVE ORDER AND AN ORDER SETTING CONDITIONS FOR COMPLIANCE WITH SUBPOENA Preliminary Statement on the application of counsel for the Public Utilities Board of the City of Brownsville, Texas ("Brownsville ") , the Atomic Safety and Licensing Board (" Licensing Board") in this proceeding issued a subpoena dated February 26, 1979, to respondent Gulf States Utilities Company (" Gulf States") ,
which is not a party to the proceeding.-1/ The subpoena to Gulf States required the production of a broad range of documents, pertaining to Gulf States ' generation and transmission of power, its interconnections and projected interconnections with other utilities, and studies, reports and negotiations with other utilities for participation in nuclear and non-nuclear generating facilities. The subpoena and the instruc-tions for compliance were some fifteen pages in length.
By letter dated March ',1979, Brownsville furnished Gulf States with a modified schedule, which it represented to contain 2356 087 lj Counsel for Gulf States has appeared specially.
7906080I93 8
those items listed in the subpoena of greatest interest to it and which it proposed "as a means of accommodation."~2/
Based upon this proposal and subsequent representations of counsel for Brownsville that the modified schedule constituted Brownsville's true demand for documents, Gulf States has pro-duced for inspection and copying the documents requested in the modified schedule.
Nonetheless, production of the documents requested in the even more " limited" schedule has required Gulf States to expend hundreds of man-hours in the compilation and review of potentially relevanc materials. Sound and equitable principles of law require that Brownsville, as the party re-questing issuance of the Licensing Board's subpoena, rather than Gulf States, a disinterested third party, bear the costs and expenses incident to production of the demanded documents.
Gulf States wishes to comply fully with the subpoena demand and to cooperate with the parties and the Licensing Board in the pending proceeding.
Accordingly, Gulf States asks only that a protective order be entered pursuant to 10 C.F.R. S2. 74 0 (c) to safeguard the confidentiality of certain business information under standard .
provisions customarily utilized by Licensing Boards, and to protect against disclosure altogether a small number of docu-ments pertaining to attorney / client communications and Gulf 2/ A copy of the March 5 letter and modified schedule is attached.
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States' ongoing negotiations with another electric utility cooperative. Also, Gulf States requests that all production be conditioned, pursuant to 10 C.F.R. 5 2. 72 0 (f) , upon reim-bursement to Gulf States for its costs and expenses in render-ing full compliance.
Arcument
- 1. Gulf States should be Reimbursed for Costs and Expenses in Comoiline the Subcoenaed Documents. The provisions of 10 C.F.R. 52.720, pursuant to which the subpoena was issued, follow the language of Rule 45, Federal Rules of Civil Pro-cedure, by enabling the Licensing Board to " quash or modify the subpoena if it is unreasonable" or " condition denial of 3/
the motion (to quash] on just and reasonable terms."~ The decisions of the Federal courts under Rule 45 (b) establish the appropriateness of reimbursing a disinterested third party respondent to a subpoena, such as Gulf States, where the costs and expenses incident to compliance are substantial.
Although burdensomeoness is not a defense to compli-ance with a subpoena, it is recognized that the subpoenaing party may be required to reimburse the respondent for its 3/ The Appeal Board in Illinois Power Co. (Clinton Power Station, Unit Nos. 1 and 2), ALAB-340, 4 NRC 27, 33 (1976), "noted the parallel between [NRC] discovery rules and those contained in the Federal Rules of Civil Procedure,"
specifically, the rules for production of documents under either Rule 34 or Rule 45 (b) . An earlier Appeal Board in Commonwealth Edison Co. (Zion Station, Units 1 and 2),
ALAB-196, 7 AEC 457, 460 (1974), reviewing a demand for documents pursuant to a subpoena issued under Section 2.720, likewise commented that the Commission's Rules are
" strikingly parallel to the analogous provisions of the Federal Rules of Civil Procedure."
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expenses as a condition to a denial of a motion to quash. For example, in Miller v. Sun Chemical Coro., 12 F.R.D. 181, 183 (D.N.J. 1952), the court stated:
A subpoena need not be necessarily quashed because the documents sought are voluminous and cumbersome and be-cause considerable trouble and expense are involved in producing them. . . .
[Ilf the plaintiff is subjected to any unusual expense in procuring the requested documents, the court may require that the reasonable cost of such production be assessed against the defendant."
In other cases, such as Goodman v. United States, 369 F.2d 166, 169 ( 9 th Cir. 1966 ) , and Freeman v. Seligson, 405 F.2d 1326, 1338 (D.C. Cir. 1968), the court cited the willingness of the subpoenaing party to bear the costs of compliance with the subpoena as evidence that the subpoena was not unreasonable or oppressive.
Where no such offer was tendered, the court has afforded the subpoena respondent protection by an order under Rule 45 (b) conditioning denial of a motion to quash upon the reimbursement of such expenses. See, e.g., State Theatre Co. v.
Tri-States Theatre Coro., 11 F.R.D. 381 (D. Neb. 1951); Fox v.
House, 29 F.Supp. 673 (E. Okla. 1939); Collins & Aikman Corn. v.
J.P. Stevens & Co., 51 F.R.D. 219 (D . S . C . 1971). In ordering the subpoenaing party to bear the expense of producing those documents it has demanded, the court in Celanese Corn. v.
E.I. duPont Nemours & Co., 58 F.R.D. 606, 612 (D. Del. 1973),
stated:
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-5 The Court is fully aware that the documents which will be ordered produced, as indicated by the present record, are very numerous and the period covered extends over an inordinate number of years. The Court is also aware that the search and production of the broad category of documents will be time-consuming and expensive for DuPont which is not a party to the Florida litigation, The Court, therefore, will order that r.he search begin immediately, that the production be made weekly as the documents are collected, and that petitioners will be required to reimburse DuPont i s reason-able expenses for the search and produc-tion.4/
Moreover, the courts have specifically recognized that reimbursement to a third-party subpoena respondent is appropriate in agency proceedings. In United States v.
Friedman, 532 F.2d 928 (3rd Cir. 1976), the Third Circuit re-viewed a subpoena of the IRS demanding production of eight categories of bank documents. Even without authorization of a specific rule, such as the one adopted by the NRC in 10 C.F.R.
S2. 720 (f) , the Third Circuit fashioned a reimbursement principle by analogy from Rule 45 (b) of the Federal Rules of Civil Procedure.
Although refusing to adopt such a principle with respect to grand jury subpoenas in criminal proceedings, the discussion of this issue by another court lends insight:
4/ Gulf States has, as stated, already compiled and reviewed the documents requested by Brownsville. It stands ready to tender such documents at its offices upon reimbursement of its expenses. While it has not been possible to prepare a complete tabulation of the man-hours and costs incident to production, Gulf States will provide the Licensing Board and Brownsville with appropriate affidavits and schedules establishing its incurred costs once the principle of reimbursement has been established.
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(I]n a proceeding to enforce e.dministra-tive subpeonas, Rule 45 (b) , F.R.Civ.P. ,
provides expressly that the court may condition compliance with the subpoena on reimbursement. Rule 45 (b) is made applicable to proceedings to enforce administrative subpoenas by Rule 81(a)
(3), F.R.Civ.P. Application of the Civil Rules to administrative subpoenas, especially with respect to this pro-vision for transferring the cost of compliance, reflects a significant policy dudement that the weight and im-port of administrative subcoenas is com-parable to that of ordinarv civil subpoenas and that witnesses, particularly neutral witnesses, should not bear unreasonable expenses in complvina with subpoenas in either a civil or an administrative croceeding.5/
More recently, the Court of Appeals for the District of Columbia has authorized reimbursement of a third-party's costs in complying with a subpoena duces tecum issued by a federal agency in Securities and Exchance Commission v.
Arthur Young & Co., 584 F.2d 1018 (D . C . Cir. 1978). Although _
the Court of Appeals broadly read the authority of a federal agency to subpoena relevant documents, it balanced its conclu-sion by agreeing with the subpoena respondent that, in par-ticular instances, administrative supboenas might impose "an unconscionable burden, in the constitutional as well as the 6/
ordinary sense." The Court of Appeals held that, under the 5/ In Re Grand Jurv Subcoena Duces Tecum Issued to The First National Bank of Marvland Dated November 4, 1976, 436 F.Supp. 46, 48 (D. Md. 1977) (emphasis added) (footnotes omitted).
6/ 584 F.2d at 1031 (emphasis added).
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circumstances, some consideration must be given to reimbursement for expenses incurred in compliance with the SEC subpoena:
3 No less than the District Court, we recognize the value of feasible con-ditions in the effort to minimize the onus of subpoena-compliance, and it is evident that cost-reimbursement could make a great deal of difference here.
(J]udicial authority to temper enforce-ment with fairness stems inexorably from congressional entrustment of subpoena enforcement to the judiciary. Surely, then, in formulating protective condi-tions for administrative subpoenas, courts may resort analogously to tech-niques conventional to judicial sub-poenas, and thus in safecuardinc acainst undue financial outlays may appropriately insist upon a reasonable measure of re- ...
imbursement. _
As applicant readily concedes, con-siderations of fairness do not call for reimbursement in every instance, or necessarily for full reimbursement in any given case. There is a continuing general duty to respond to governmental process; in consequence, subpoenaed parties can legitimately be required to absorb reasonable expenses of compliance with administrative subpoenas. It follows that the power to exact reim-burse-ent as the price of enforcement is soundly exercised only when the financial burden of compliance exceeds that which the party ought reasonably be made to shoulder. And what is reasonable will depend--as over the legal spectrum it ultimately does-upon the circumstances of each case.7/
7/ 584 F.2d at 1032-33 (emphasis added) (footnotes deleted).
The Court of Appeals noted that it was " unable at this time to rule affirmatively that [the bank] is entitled to reimbursement, for its actual future expenses conceivably could fall far short of its present projection." 584 F.2d at 1034. Nonetheless, upon the offer of the bank, the (Footnote 7/ centinued on next page) 2356 093
Under the principle established by the Court of Appeals, it is appropriate that Gulf States be fully reimbursed for its costs and expenses incident to full production. First, as in the Arthur Young & Co. case,, Gulf States is "not the 8/
primary target" of the pending NRC antitrust proceeding under 5105c (2) of the Atomic Energy Act of 1954, as amended, 42 U.S.C.
52135 (c) (2) . The subpoena is not one issued by the NRC pursuant to its own inquiry, but rather at the behest of a private party seeking antitrust relief. No allegation has been made that Gulf States is in violation of any antitrust law. Second, Gulf States has foregone any objection based on relevancy or burdensomeness, and has stated its intention to comply fully with the subpoena request by Brownsville under its modified schedule. Third, the costs and expenses incurred by Gulf States in producing the requested documents has been sub-stantial, requiring hundreds of man-hours from administrative and managerial personnel, clerical personnel, and in-house 7/ continued court expressly authorized postponement of reimbursement "until after full production," even though this arrange-ment could not have been demanded by the SEC as a matter of right. Id. Similarly, Gulf States wishes to comply with the subpoena demand and merely seeks recoupment after full production of expenses determined by the Licensing Board to be reasonable. However, prior to the commence-ment of production, the principle of recoupment should be established.
8/ 584 F.2d at 1031.
9/ The instant proceeding therefore is distinguishable from enforcement actions in which recoupment of expenses incident to document production under Rule 45 (b) has been denied such as United States v. International Business Machines Corp., 71 F.R.D. 88 (S.D.N.Y. 1976) and United States v.
International Business Machines Corp., 62 F.R.D. 507 (S . D . N . Y . 1974).
10/
counsel.
In Public Service Comoany of Oklahoma (Black Fox, Units 1 and 2), LEP-77-18, 5 NRC 671 (1977), the Lic.asing Board held that it could require payment of expert witness fees under the provisions of either Section 2.740 (c) of the Commission's Rules of Practice, governing protective orders, or Section 2.720 (f), governing conditions imposed for denial of a motion to quash. The Licensing Board pointed out that its construction of these rules was intended to afford reimburse-ment for discovery expenses incurred by the responding party similar to that available under the Federal Rules of Civil Procedure. The parties were directed to reach an agreement as to " reasonable fees," but were directed to go forward with the depositions even if an agreement could not be reached, leaving the Board to determine upon a subsequent submission the fee to be awarded. It is suggested that the same approach is appropriate here in order to avoid unnecessary delay in the instant proceeding and to assure Gulf States that its reasonable costs and expenses will ultimately be recouped.
10/ Gulf States does not seek recoupment of legal fees in-curred with respect to tnis subpoena. However, it should be noted that these costs, too, have been substantial because of the necessity to review many documents for possible claims of proprietary privilege, the preparation of a proposed protective order, the instant motion, as well as coordinating a response by Gulf States and negotiating with counsel for Brownsville for compliance with the subpoena. The fact that these extraordinary expenses cannot be recovered is an additional reason why the Licensing Board should permit Gulf States to recoup its other reimbursable expenses.
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- 2. Gulf States is Entitled to Protection of Confidential Business Information and Attorney / Client Communications. Gulf States has submitted a proposed form of protective order which would limit confidentiel business information to a specified number of persons, including counsel, who promise not to dis-11
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close the furnished information. The provisions of this' guarantee against unauthorized disclosure are similar to those in protective orders issued by this Board in protecting against disclosure of confidential business information.
In addition, however, certain of the documents de-manded by the subpoena relate to ongoing negotiations with the Sam Rayburn Dam Electric Cooperative,-12/ and disclosure of the substance of these negotiations, even under the safeguards afforded by a protective order limiting further disclosure, might seriously jeopardize negotiations. If other investors or potential participants were to learn the details of there negotiations, the competitive position of either Gulf States or Sam Rayburn Dam Electric Cooperative would be compromised.
Moreover, even the mere possibility of disclosure (unknown to participants) might itself be sufficient to disrupt negotiations.
11/ See, e.c., Kansas Gas and. Electric Comoany (Wolf Creek Nuclear Generating Station, Unit No. 1), ALAB-327, 3 NRC 408 (1976).
12/ These documents relate to a proposed participation agree-ment between Gulf States and the Sam Rayburn Dam Electric Cooperative in the River Bend Nuclear Plant and, second, renegotiation of an existing contract with the Sam Rayburn Dam Electric Cooperative for transmission of its power from the dam by Gulf States to the Cooperative's members after November 1980. Upon request, Gulf States will silbmit these documents for an in camera inspection by the Licensing Board.
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Given the obvious sensitivity of these ongoing negotiations, neither Gulf States nor the Sam Rayburn Dam Electric Cooperative should be asked to run the risk of disclosure incident to document production even under a limiting protective order.
Nonetheless, in order to acccmmodate the needs of the parties to this proceeding for relevant information, Gulf States is willing to provide a summary of these documents.
Finally, a number of the documents that fall within the scope of the subpoena are communications to and from Gulf States and its counsel. These documents should be fully protected against disclosure under the familiar principle 13/
of atto:.ney/ client privilege.
Numerous decisions have sus-tained a claim of privilege asserted by a corporation with respect to similar correspondence to and from counsel' .
Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 19; i Natta v. Zletz, 418 F.2d 633 (7th Cir. 1969);
Natta v. '
can, 392 F.2d 686 (10th Cir. 1968); Pfizer, Inc. v.
Lord, 456 1 ?45 (8th Cir. 1972).
Conclusion For the reasons more fully discussed above, it is re-spectfully requested that the Licensing Board enter the pro-tective order proposed by Gulf States for the safeguarding of confidential business information and reimbursement of costs 13/ The attorney / client communications are too numerous to list here, but such an enumeration will be provided if requested.
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and expenses incurred in the production of documents pursuant to the Licensing Board's subpoena.
Respectfully submitted, CONNER, MOORE & CORBER Mark J. Wetterhahn Robert M. Rader 2356 098 April 25, 1979 9
SPIF.GI:L de MCDYA Wm
. asCO VIRGINtA AVENUE. N.W.
g WASHINGTQN. D.C. 20037 3EsetEGEL TT C. McCIAAMID TILgComER (2023 333 2374 SCNNIE 3. St. AIR tA J. STREBEL RCSENT MAALEY SEAA IT A. JASLON THCMAS C. TRAUGER N.MCAWCCO JCHN M8CMAEL ACAAGNA z.ACTH CTNTHIA S. SCGCRAC 13 L FMANCIS (MASSACMUSETTS SAA QMb79
.L GAv103CN GAAT J. NEWELL
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March 5, 1979 -
L STRAUS .
N Benjamin H. Hughes, Esquire Orgain, Bell & Tucker P.O. Box 1751 g*
Beaumont, Texas 77704 -
Re: Houston Lighting & Power Company, et al.
(South Texas Project Units No.1 & No. 2)
NRC Docke t Nos . 50-498A, 50-499A Dear Mr. Eughest As we discussed today by telephone, although the Public Utilities Board of the City of Brownsville, Texas
("Brownsville") has prepared a subpoera for production of documents to Gulf States Utilities Company ("GSU") in the above proceeding, informal cooperation will be advantageous to GSU as well as Brownsville, and will speed the preparation of ou: case. In fhe interest of cooperation, I am enclosing, as you requested, a list of topics on which we consider it essential to ben access to GSU's documents for inspection and copying. This list is drawn from, and is a subset of, the requests for documents to which GSU would be obligated to respond under subpoena. We. propose it to you as a means of accomodation, and without prej udice to Brownsville 's right to seek compliance with the NRC subpoena.
I as telecopying to you a copy of this letter and the attached schedule so that you may confer right away with the GSU counsel you have contacted. I expect to be in touch with you very shortly about this matter.
Very trul yours, 4tC Marc R. Poirier b .-; ' -
Attorney for the Public Utilities
%9 - Board of the City of Brownsville, Ap. Texas
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Enclosure
SCHEDULE As Maps sufficient to indicate all actual and proj'ected GSU i hin the transmission and subtransmission lines located w t (l(a))
State.cf Texas.
3 All documents relating to each offer of participation in any nuclear electric generating cnit located all documents in Texas, relating to par-made or received by GSU; actual or potential,. by any electric utility ticipation, including the terms and con ~
in the South Texas Units ,
ditions, limitations or restrictions of such participation. ( F(a) & (b)) ,
C.
All documents relating to GSU policy for sale of power, d establishing terms for sale of power, or to interc ecoperatively cwned and/or cperated electric utilities (Parts located in whole or in part in the state of Texas. ,
of questions 6,7,8,9,10,11)
D.
All documents relating to policy for in participation Texas in anyby any utility located in whole or in part generation facility of which GSU is whole or part owner.
(8(b))
E.
All principal. documents relating to each reason why' GSU does not operate in synchronism with any electricu to relative advantages to any electric utility of opera- in tion solely within the state of Texas and operatingi or report by any electric utility, or by any statethe or federal agency that regulates electric utilities, in whole or .in part, poten-subject of which relates to, tial operation of any electric . utility or utilities actually operating solely within the state of Texas so as to place such utility or utilities into interstate com-(in merce ween GSU *and any other electric utility relating to any such study or report) (13(a), (b) & (c)).
2356 100 I
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A11 documents relating to the wholesale salTexas, including
_e of power and/or energy by GSU to College (14(a), (b) &Station, (c)) rates and term and/or transmission lines.
G.
All documents relating to actual, potential, ;:cssible or contemplated competition between GSU (13)and any other electric utility located in Texas N .
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. UNITED STATES OF AMERICA -
NUCLEAR REGULATORY COMMISSION - 3 9 @
In the Matter of ) b
) &
HOUSTON LIGHTING AND POWER COMPANY ) Docket Nos. 50-498A THE CITY OF SAN ANTONIO ) 50-499A THE CITY OF AUSTIN AND )
CENTRAL POWER AND LIGHT COMPANY )
)
(South Texas Project, Units Nos. )
1 and 2) )
PROTECTIVE ORDER WHEREAS, by subpoena of the Atomic Safety and Licensing Board (" Licensing Board") in these proceedings dated February 26, 1979, Gulf States Utilities Company (" Gulf S tates ") was, at the request of Public Utilities Board of the City of Brownsville, Texas ("Brownsville") pursuant to 10 C.F.R. S2.720, commanded to make available for inspection and copying the documents described in the Schedule attached to said subpoena; AND, WHEREAS, Gulf States has shown good cause for the imposition of terms and conditions for compliance with said subpoena under 10 C.F.R. S 52. 720 (f) and 2.740(c) as set forth below; IT IS HEREBY ORDERED THAT:
- 1. Production by Gulf States of those documents specified in the attached Schedule in lieu of the documents specified in the Schedule to Subpoena for Production of Documents attached to the Licencing Board's subpoena of February 26, 19 79, in accordance with the terms and conditions stated below, shall 2356 102
be deemed full and complete compliance with the subpoena of the Licensing Board.
- 2. City of Brownsville shall bear all costs and expenses incurred by Gulf States in responding to the Licensing Board's subpoena of February 26, 1979.
- 3. As used herein, " confidential business information" is information which concerns and relates to the trade secrets or other confidential business plans, procedures, relationships or arrangements of any kind which, if disclosed, have the potential c2 causing harm to the competitive position of the person, firm, partnership, corporation or other organization from which the information was obtained. and as to which that person, firm, partnership or corporation could claim confiden-tial treatment. Suchconfidentialinformationsha15 include, but not be limited to, data, information, or options furnished by third parties to Gulf States for the purpose of preparing and conducting a joint study of the feasibility of interconnec-tion, the construction of jointly owned or utilized generation or transmission facilities; offers and responses with regard to participation by Gulf States or a third party in the owner-ship, construction or operation of any electric power facility or portion thereof; and, the terms and conditions of any contract currently under negotiation between Gulf States and any other party for the sale or supply of electric power (excluding documents covered by Paragraph 14 below) .
- 4. Any documents produced in response to the subpoena of February 26, 1979, which are asserted by Gulf States to 2356 103
3 contain or constitute such confidential business information shall be so designated in writing and shall be segregated frem other information being produced. Cocuments shall be clearly and prcminently marked on their face with the legend:
"GUI2 STATES CCNFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER,"'or a ccmparable notice. As used herein, "docen t" shall include all contents oc any portion of any document so designated. Only in camera disclosure of such documents shall be made at any hearing before the Nuclear Regulatory Ccmmission ("Cccmission"), the Licensing Board or the officer presiding over this proceeding.
- 5. Confidential documents produced in accordance with the provisions of paragraph 4 above shall.not be disclosed to any person other than: (i) counsel for parties to this proceeding, including necessary secretarial and clerical personnel assisting such counsel; (ii) qualified persons taking testi=cny involving such documents or information and necessary stenographic and clerical personnel thereof; (iii) independent consultants and technical experts and their staff who are engaged directly in this litigation; (iv) the Commission, the Licensing Board, the presiding afficer, or Commission's Staff.
- 6. Confidential business information submitted in .
accordance with the provisions'of paragraph 4 above shall ._
' ~
not be made available to any person designated.in paragraph 5(i) and (iii) unless they shall have first read this Order and shall have agreed, in writing: (i) to be bound by the terms 2356 104
thereof; (ii) not to reveal such confidential business in-formation to anyone other than another person designated in paragraph 5; and (iii) to utilize such confidential business infor=ation solely for purposes of this proceeding.
- 7. If the Commission or the Licensing Board orders that access to or dissemination of documents designated confidential shall be made to persons not included in paragraph 5 above, such documents shall be accessible to or disseminated to such other persons only upon the conditions and obligations of this Order. Such persons shall agree in writing to be bound.thereby prior to such access or dissemination.
- 8. Any confidential document shall be submitted to the Ccmmission, Licensing Board or the presiding officer only in connection with a motion or other procedure within the purview of this proceeding, and shall be submitted under seal in the. manner described in paragraph 4 above. Any portion of a transcript in connection with this proceeding containing any confidential document submitted pursuant to paragraph 4 above shall be bound separately and filed under seal. When any confidential documents submitted in accordance with paragraph 4 above is included in an authorized transcript of a deposition or exhibits thereto, arrangements shall be made with the court reporte:r taking the deposition to bind .
such confidential portions and separately label them "GUIS -
STATES CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE -
ORDER." Before a court reporter receives any such document, he or she shall have first read this Order and shall have 2356 105
agreed in writing to be:. bound by the ter=s thereof. Copies of each such signed agreement shall be provided to Gulf States.
- 9. Any document produced and designated as confidential pursuant to paragraph 4 above is to be treated as such within the meaning of 5 U.S.C. 5552(b) (4) and 18 U.S.C. 51905, subject to a final . 6 g, after notice, by the Commission, Licensing Board, the presiding officer, or the Commission's Freedom of Information Act Officer to the contrary, or by appeal of such a ruling, intericcutory or otherwise.
- 10. The Commission's Staff shall take all necessary and proper steps to preserve the confidentiality of, and pro-tect Gulf States' rights with respect to,-any confidential documents designated by Gulf States in accordance with para-graph 4 above, including, without limitation, (a) notifying Gulf States prcmptly of: (i) any inquiq or request by anyone for the contents of or access to such confidential documents (other than those authorized pursuant to this Order) under the Freedcm of Information Act, as amended, 5 U.S.C.
5552, and (ii) any proposal to declassify or make public any such confidential document; and (b) providing Gulf States at least seven days after receipt of such inquiry or request within which to take action before the Commission, the Board, ,
, its Freedcm of Informatien Act Officer, or the presiding -
officer, or otherwise to preserve the confidentiality of such confidential documents. 2356 106
- 11. If confidential documents produced in accordance with paragraph 4 are disclosed to any person other than in the manner authorized by this Order, the person responsible for the disclosure shall i= mediately bring all pertinent facts relating to such disclosure to the attention of Gulf States and the presiding officer and, without prejudice to other rights and remedies of Gulf States, make every effort to prevent further disclosure by him or by the person to whom the document was improperly disclosed.
- 12. Nothing in this Order shall abridge the right of any person to seek judicial review or to pursue other ap-propriate judicial action with respect to any ruling =ade by the Commission, its Freedom of Information Act Officer, the Licensing Board. or the presiding officer concerning the status of confidential documents.
13 Upon final. termination of this proceeding, each persca subject to this Order shall assemble and return to Gulf States all confidential documents as well as all other documents containing confidential business information pro-duced in accordance with paragraph 4 above, including all copies of such matter which may have been made, but not in-cluding copies containing notes or other attorney's work product that may have been placed thereon by counsel for .
the receiving party. All copies containing notes or other -
attorney's work pre. duct shall be destroyed, and certification of same shall be made to Gulf States. Receipt of material 2356 107
returned to Gulf States shall be acknowledged in writing.
This paragraph shall not apply to the Commission, the Board, the presiding officer and the NRC Staff, which shall retain such material pursuant to statutory requirements and for a
other recordkeeping purposes, but may destroy those additional copies in its possession which it regards as surplusage.
- 14. Gulf States need not produce any docu=ents required by the subpoena that relate to its proposed. participation agreement with the Sam Rayburn Dam Electric Cooperative, Inc.
for the River Bend Nuclear Plant. Upon request, Gulf States shall provide a summary of documents particularly requested so as not to compromise its proprietary interests. If the parties are unable to reach agreement on the sufficiency of Gulf States '
response, the documents shall be submitted to the Licensing Board for in camera inspect 4cn. If the Board determines that the inspected documents may be disclosed, such disclosure shall be in accordance with the terms and conditions of paragraphs 3-13 of this order, except that the Board may order that the documents be produced only in part of with certain deletions to protect the confidentiality of proprietary interests.
- 15. Gulf States need not produce any correspondence or communication between Gulf States and outside counsel. Gulf States shall, upon request, furnish a list of such documents with a description of each. If the privileged nature of the document is contested, the document shall be submitted to the Licensing Board for in camera inspection. If the Board 2356 108
determines that the inspected documents may be disclosed, such disclosure shall be in accordance with the terms and conditions of paragraphs 3-13 of this Order, except that the Board may order that the documents be produced only in part or with certain deletions to protect attorney / client confidentiality.
FOR THE ATOMIC SAFETY AND LICENSING BOARD Dated at Bethesda, Maryland this day of , 1979.
2356 109
~
SCHEDULE l.
to indicate all actual and projected GSU A,
Maps sufficienttransmission and subtransmission lines located within the State of Texas. (l(a)) in 3
All documents relating to each of fer of participation in Texas, any nuclear electric generating unit locatedall dccuments relating to par-made or received by GSU; actual or potential, by any electric utility ticipation, including the terms and con-in the South Texas Units, ditions, limitations or restrictions of such participation. ( T(a) & (b)) .
C. All documents relating to GSU policy for sale of power, interconnected establishing terms for sale of power, or to operation or transmission services by GSU to municipally or ccoperatively owned and/orin operated the stateelectric of Texas.utilities (Parts located in whole or in part ,
of questions 6,7,8,9,10,11)
D.
All documents relating to policy for in participation Texas in any by any utility located in whole or in part generation facility of which GSU is whole or part cwner.
(8(b))
E.
All prin~cipal documents relating to each reason why GSU
) does not operate in synchronism with any electric utility that is a membertoofany TIS;electric all documents utility ofrelating opera-to relative advantages tion solely within the state of Texas and operating or report by any electric utility, or by any state or- the federal agency that regulates electric utilities ,
in whole or in part, poten-subject of which relates to, tial operation of any electric . utility or utilities actually operating solely within the state of Texas so as to place such utility or utilities into interstate com-relating to communic merce (including document:
ween GSU 'and any other electric utility relating to any such study or report) (13(a), (b) & (c)).
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h lesale sal.e of power including tion, Texas, All documents relating to the w o F. and/or energy by GSU to College Staf interconnections ,
rates and terms and construction(14(a), /b) & (c)) o and/or transmission lines. l, potential, possible or All docu lents relating to actua GSU and any cther G. (15) contempl.ated competition betweenelectric utility lo
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UNITED STATES OF AMERICA SEFORE THE -
NUCLEAR REGULATORY COMMISSION BEFORE THE ATCMIC SAFETY AND LICENSING 30A2D In .the Macter of )
) :
Ecuston Lighting & Power Company ) Docket Nos. 50-498A The City of San Ant =nic ) . and 50-499A The City of Austin ),
Central Pcwer & Light.C=mpany- )
(Scuth Texas Project, Unit Nos )
~
l ed 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Motion by Respondent Gulf States Utilities Ccmpany for a Protective Order and an Order Setting Conditions for Ccmpliance with Subpoena," dated April 25, 1979, and a proposed " Protective Order," in the captioned =atter, have been served upon the folicwing by deposit in the United States mail this 25th day of April, 1979:
Marshall E. Miller, Chairman Joseph J. Saunders , Esquire At=mic Safety & Licensing Beard Chief, Public Counsel &
Panel Legislative Section Nuclear Regulatory Ccmmission Department of Justica Washington, D. C. 20555 P. O. Box 14141
- Washington, D. C.
20044 Shelden J. Wolfe, Esquire Atomic Saf ety & Licensing 3 card Jcseph Galle, Esquire Panel Richard D. Cudahy, Esquire-Nuclear Regulator 1 Cc=missien acbert E. Leeffler, Iseuirs Washingren, D. C. 20555 Isham, Linccin & Beale Suite 701 Michael L. Glaser, Esquire 10 50 17 th S tree t, N. W.
1150 17 th Street, N. W. Washingten, D. C. 20036.
Washington, D. C 20036 2356 li2 G
l
John D. Whitler, Esquire Joseph Rutherg, Esquire Ronald Clark, Esquire Antitrust Counsel Department of Justice Counsel for NRC Staff P. O. Box 14141 Nuclear Regulatory Commission Washington, D. C. 20044 Washington, D. C. 20555 Joseph Knotts, Esquire Chase R. Stephens, Chief Nicholas S. Reynolds, Esquire Docketing and Service Section Debeycise & Liberman Office of the Secretary 1200 17 th 5 tree t, N. W.
Nuclear- Regulatory Commission Washington, D. C. 20036 Washington, D. C. 20555.
Douglas F. John, Esquire Jeseph I. Worsham, Esquire Akin, Gu=p, Eauer & Feld Merlyn D. Sampels, Esquire 1100 Madison office Building ~ Worsham, Forsythe & Sampels 1155 15 th Street, N. W. 2001 Bryan Tower, Suite 2500 Washington , D. C. 20024 Dallas, Texas 75201 R. Gordon Gooch, Esquire Spencer C..Relyea, Esquire John P. Mathis , Esquire Worsham, Forsythe & Sampels Baker & Botts 2001 Bryan Tower, Suite 2500 1701 Pennsylvania Avenue, N. W. Dallas, Texas 75201 Washington, D. C. 20006 R. L. Eancock, Director Rcbert Lowensteine Esquire City of Austin Electric J. A. Ecuknight, Jr., Esquire Utility Department Lowenstein, Newman, Reis & P. O. Box 1088 Axelrad Austin, Texas 78767 1025 Connecticut Avenue, N. W.
Washington, D. C. 20036 Jerry L. Harris, Esquire City Attorney William J. Franklin, Esquire City of Austin Lowenstein, Newman, Reis & P. O. Box 1088 Axelrad Aus tin, Texas 78767 1025 Connecticut Avenue, N. W.
Washingten, D. C. 20036 Richard C. Balough, Esquire Assistant City Attorney Frederick E. Ritts, Esquire City of Austin Law Offices of Northcutt Ely
~
P. O. Box 1088 Watergate 600 Building Austin, Texas 78767 Washington, D. C. 20037 .
Dan E. Davidson Wheatley &.Wolleson City Manager 1112 Watergate Office Building City of Austin 2500 Virginia Avenue, N. W. P. O. Box 1088 Washingten, D. C. 20037 Aus tin , Texas 78767 2356 113 6
m
. 4 . .
'Reff Eardy, Chairman and Chief Don R. Butler, Esquire Executive Officer Sneed, Vine, Wilkerson, Selman Central Power & Light Company & Perry P. O. Box 2121 P. O. Box 1409 Corpus Christi, Texas 78403 Austin, Texas 78767 G. K. Spruce, General Manger Morgan Hunter, Esquire City Public Service Board McGinnis, Lochridge & Kilgore P. O. Box 1771 900 Congress Avenue San Antonio, Texas .78203 Austin, Texas 78701 Jon C. Wood, Esquire Kevin B. Pratt, Esquire W. Roger Wilson, Esquire Assistant Attorney General Matthews, Nowlin, Macfarlane P. O. Box 12548
& Barrett Capital Station 1500 Alamo National Building Austin, Texas 78711 San Antonio, Texas 78205 Linda L. Aaker, Esquire Perry G. Brittain, President Assistant Attorney General Texas Utilities Generating P. O. Box 12548 Company Capital Station 2001 Bryan Tower Austin, Texas 78711 Dallas, Text.s 75201 E. W. Barnett, Esquire John E. Mathews, Jr., Esquire Charles G. Thrash, Jr. , Esquire Mathews, Osborne, Ehrlich ,
Baker & Botts McNatt, Gobelman & Cobb 3000. One Shell Plara 1500 American Heritage Life Bldg.
Houston, Texas 77002 Jacksonville, Florida 32202 J. Gregory Copeland, Esquire Robert E. Bathen Theodore F. Weiss, Jr., Esquire R. W. Beck & Associates Baker & Botts P. O. Box 6817 3000 One Shell Plara Orlando, Florida 82803 Ecuston, Texas 77002 Somervell County Public Library G. W. Oprea, Jr. P. O. Box 417 Executive Vice President Glen Rose, Texas 76403 Houston Lighting & Power Company P . O.- Box 1700 Maynard Human, General Manager Ecuston, Texas 77001 Western Farmers Electric Coop.
P. O. Box 429 Anadarko, Oklahoma 73005 2356 114
e a
e' W. S. Robson, General Manager
- South Texas Electric Cooperative, Inc. James E. Menahan Route 6, Building 102 Executive Vice President and Victoria Regional Airport General manager Victoria, Texas 77901 Bra =os Electric Power Coop. , Inc.
P. O. Box 6296 76706 Michael I. Miller, Esquire Waco, Texas
- Richard E. Powell, Esquire Isham, Lincoln & Beale Judith Harris, Esquire one First National Pla:a Department of Justice Chicago, Illinois 60603 P. O. Box 14141 Washington, D. C .. 20044 David M. Stahl, Esquire Jerome Salt: man, Chief Thomas G. Ryan, Esquire Antitrust & Indemnity Group Isham, Lincoln & Beale one First National Plaza Nuclear Regulatory Ccmmission Chicago, Illinois 60603 Washington, D. C. 20555 i
Knoland J. Plucknett Jay M. Galt, Esquire Executive Director Looney, Nichols, Johnson &
Committee- on Power for the Hayes Southwest, Inc 219 Couch Drive 5541 Skelly Drive- Oklahoma City, Oklahoma 73101 Tulsa, Oklahoma 74135 -
Marc R. Poirier, Esq.
Spiegel & McDiarmid 2600 Virginia Avenue, N.W.
Washington, D. C. 20037
\
- Robert M. Rader 2356 115 8