ML19269E420
| ML19269E420 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 05/31/1979 |
| From: | Rader R, Wetterhahn M CONNER, MOORE & CORBER |
| To: | |
| References | |
| NUDOCS 7906280232 | |
| Download: ML19269E420 (37) | |
Text
-_
._ .m _ _. _.
Nac FUBLIC D00mfE)G ROOM n[f4 p
a 5s,Aeda#q:
M e.'-t ".. ~
UNITED STATES OF AMERICA NUCLEAR REGULATORY ~ COMMISSION
% T, /[ # 'y
/,g [I' ;
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
Houston Lighting & Power Company ) Docket Nos. 50-498A The City of San Antonio ) 50-499A The City of Austin )
Central Power & Light Company )
(South Texa;2 Project, Unit Nos. )
1 and 2) )
REPLY BRIEF OF GULF STATES UTILITIES COMPANY TO ANSWERS OF THE DEPARTMENT OF JUSTICE AND THE PUBLIC UTILIT7ES BOARD OF THE CITY OF BROWNSVILLE Preliminary Statement In response to the 15-page subpoena and instructions for compliance issued by the Atomic Safety and Licensing Board (" Licensing Board") in this proceeding at the request
~
of the Public Utilities Board of the City of Brownsville, Texas ("Brownsville"), Respondent Gulf States Utilities Company (" Gulf States") filed a Motion for a Protective Order and an Order Setting Conditions for Compliance with Subpoena. As set forth in the accompanying affidavit of Donald M. Clements, an attorney employed by Gulf States who coordinated the document search and response to the subpoena, Gulf States has made every fair and reasonable effort in good faith to be responsive to the subpoena. The attacks upon Gulf States' good faith response by the Department of77 3}2 7906280.23 3
, r Justice (" Justice") and Brownsville in their respective Answers are .thout foundation.
Indeed, Gulf States has assembled thousands of pages of documents in response to the subpoena which it is prepared to make available to the parties to this proceeding upon a resolution of the issues presented by its Motion for a Protective Order and an Order Setting Conditions for Com-pliance and this further reply. Incomprehensibly, Brownsville and Justice argue that Gulf States' Motion is merely a 1/ dilatory tactic.~- Neither Brownsville or Justice has suggested any plausible reason why delay would be an advantage to Gulf States, since it is not a party to this proceeding and has not objected to the production of the documents
--1/ In this respect, the position of the Department of Justice is particularly questionable. The subpoena was not issued at its request, and its knowledge of the document demand is limited to the face of the subpoena and its attorneys' consultation with counsel. Citing what it regards as " excessive delay" and accusing Gulf States of engaging in a "[ transparent] attempt . . . to obtain additional delay," Justice Brief at 4 and 6, Justice cynically and without good cause assumes that Gulf States has not acted in good faith in complying with the Board's subpoena. As demonstrated by the Affidavit of Donald M. Clements, Gulf States personnel have expended roughly 300 manhours in collecting, reviewing and collating documents responsive to the sub-poena, the mass of which amounts to several thousand pages of documents. Also, not reflected in the Affidavit are the many hours by counsel expended in personally re-viewing documents and preparing responsive pleadings, which necessarily affected the progress that could be made in document retrieval and assambly by Gulf States personnel. Considering the length of this hearing, the timing of Brownsville's request, and the available time ror discovery, this matter could not be considered to have delayed the proceeding.
2\12 >\h
a F requested except on certain narrow, specified grounds of privilege commonly recognized by the past orders of other licensing boards. Obviously, if delay were an objective, Gulf States could have insisted upon a resolution of the procedural issues presented by its Motion before even beginning to retrieve potentially responsive documents, profferred additional objections on the basis of rele-varece as well, or required enforcement in a federal District Court. By going forward with production first and then moving as to the terms of production later, Gulf States has not delayed the ultimate production of the documents requested. At most, only the sequence of events has been affected. Moreover, the relief sought by Gulf States in its Motion is patently well-founded. Under the principles applicable to the enforcement of administrative subpoenas in the first instance by the agency itself, or subsequently by a United States District Court under the Federal Rules of Civil Procedure, this Licensing Board hae :mple authority to determine whether production of documents in compliance with the subpoena requires recoupment of the respondent's cost as a "just and reasonable" term for production under 10 C.F.R. S2.720(f). Such discretion to condition production upon reimbursement or partial reimbursement of Gulf States' costs should be exercised in this instance in light of the several equitable factors discussed below. 2172 314
I. THE COMMISSION HAS AUTHORITY UNDER THE ATOMIC ENERGY ACT OF 1954, AS AMENDED, AND ITS RULES OF PRACTICE TO REQUIRE REIMBURSEMENT TO GULF STATES AS A CONDITION FOR COMPLIANCE WITH THE SUBPOENA Brownsville argues that a Isspondent's costs in com-plying with an administrative subpoena are non-reimburseable without express statutory authority, relying upon Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975) (declining to overturn the "American rule" by which attorneys' fees are not allowed without express statutory authority). However, the availability of attorneys' fees is far different from recoupment of a subpoena respondent's cost. First, in examining the history of the statute allow-ing for the recovery of court costs, the Supreme Court in Alyeska found no evidence of a congressional intent ever to allow attorneys' fees as a " cost." Instead, he Court found that Congress had, on a case-by-case basis, provided for
" specific and explicit provisions for the allowance of attorneys' fees under selected statutes."--2/ Also, the Court found that the allowance of at torneys ' fees without express authorization from Congress "would immediately collide with the express provision of 28 U.S.C. S2412" not permitting recovery of fees and expenses of an attorney as " costs."--3/
Finally, the Supreme Court in Alyeska concluded that reversing the long-standing "American rule" wou.id usurp _2/ 421 U.S. at 260. 421 U.S. at 265. _ 3/ 2372 315
Congress' policy-making role. Thus, the Court stated that it was
. . . asked to f ashion a f ar -reaching exception to this "American rule;" but having considered its origin.and develop-ment, we are convinced it would be inappropriate for the Judiciary, without legislative guidance, to reallocate the burdens of litigation . . . . _4/
By contrast, there exists no such long-standing statement of congressional policy against recoupment of costs by dis-interested third-party subpoena respondents. In fact, congressional ratification of Rule 45 (b) and Rule 81 and the courts' decisions allowing recoupment of administrative subpoena costs under these Rules show a history that affir-matively favors a policy of reimbursement. It is also noteworthy that in Ash Grove Cement Co., FTC Docket No. 8785, 27 Pike and Fischer Adm. Law (2d) 1038, 1040 (1970); the FTC found authority under its own Rules of Practice "to require the payment by a respondent of appropriate and deter.ninable expenses connected with compliance by a third person with a subpoena issued at the instance of the respondent," precisely the situation presented by Gulf States'
-5/
Motion. - While neither the Federal Trade Commission Act nor
--4/ 421 U.S. at 247. To the same effect is Turner v. F.C.C.,
514 F.2d 1354 (D.C. Cir. 1975) where the Court of Appeals relied upon Alyeska in declining to award legal fees to a petitioner opposing license renewal for a radio station whose application was challenged but nonetheless granted. _1/ Clearly, almost 300 manhours expended by Gulf States at a cost of $5,000 involved "semething more . . . than . . . routinely pulling records from files in the ordinary sense. "
--Id.
2172 316
the FTC rules expressly authorized recoupment of such coscs, the Commission held that its rules were sufficiently broad to permit application of Rule 45(b), F.R. Civ. P., by analogy. As an equitable matter, a party which petitions for an award of attorney's fees has actively sought relief of some sort on the merits, while a subpoena respondent seeks no relief on the merits whatever. Brownsville also relies upon an order issued by the Licensing Board in Pacific Gas & Electric Co. (Stanislaus Nuclear Project, Unit No. 1), NRC Docket No. P-56f-A (January 25, 1979), with respect to a claim for reimburse-ment by a third party in response to a subpoena duces tecum. As Brownsville concedes, the Board's order dces not discuss the subpoena respondent's request for reimbursement of its costs in compliance, much less articulate the basis for its deci'sion. While Brownsville relies upon the Staff's brief on appeal, Gulf States respectfully refers the Board herein to the transcript of oral argument which indicates that the Appeal Board by no means accepted without question the Staff's argument. In particular, Mr. Salzman pointed out that, whatever the authority of the NRC's li. censing boards to assess costs, such discretion clearly lay within the power of a United States District Court in a proceeding under Rule 81, F.R. Civ. P. Accordingly, there is no good reason for the Licensing Board to decline to make a determi-nation as to cost in the first instance where such authority 2172 317
clearly would fall within the province of the District Court 6/ in a subsequent enforcement proceeding.-- Finally, it should be noted that the provision au-thorizing the issuance of the subpoena in question here, 10 C.F.R. 5 2. 720 (a) , provides only for the " production of evidence," not for the production of prehearing discovery, which is what Brownsville is obviously seeking. It has been held elsewhere that a regulation authorizing the issuance of an administrative subpoena for the production of evidence simply does not authorize the issuance of a subpoena for prehearing discovery. See FMC v. Anglo-Canadian Shipping 7/ Co., 335 F.2d 255 (9th Cir. 1964).
--6/ Brownsville also relies upon a decision under a state utility law entitled Central Maine Power Co. v. Maine Public Utilities Commission, 395 A.2d 414 (Me. 1978),
where the Maine Supreme Court denied a request for reim-bursement with respect to the production of information from a public utility. Obviously, the decision is limited on its facts to a construction of the Maine utilities statute, which contains no provision pertaining to condi-tions for production comparable to the "just and reasonable terms" provision of 10 C.F.R. S2.720(f). Moreover, the documents in that instance were demanded as part of an ongoing investigation by the Public Utilities Commission, not pursuant to a subpoena at the request of a third party, and the utility from which the information was sought was in fact made a party to the Commission's proceeding in-voluntarily. Thus, the procedures of the Maine Public Utilities Commission vary from those cLilized by the NRC under the Atomic Energy Act of 1954 and the NRC's Rules of Practice, and the Maine statute simply reflects a dif-ferent conclusion by its legislature as to the recoupment of costs. There is simply no basis for discerning such an absolute rule under the Atomic Energy Act, NRC Rules and Regulations or federal administrative subpoena practice, generally.
--7/ The matter was discussed exhaustively by the parties in the Stanislaus proceeding as well as by the Appeal Board members during oral argument, and the Licensing Board is respectfully referred to the transcript and record for a full discussion of this point.
2172 318
While Gulf States has not directly challenged the authority of a Licensing Board to subpoena prehearing 'iscovery, it would be inconsistent for the Licensing Board to interpret 10 C.F.R. 52. 720 (a) so broadly as to include discovery documents when only the production of evidence is explicitly - authorized, but then construe the "just and reasonable terms" provision of subsection (f) so narrowly as to exclude reim-bursement of costs. Indeed, there is little else that could be provided a third party subpoena respondent except reim-burseme.it of its costs as such a "just and reasonable" conditien for its compliance with the subpoena. Moreover, by permitting the subpoena respondent to recoup costs before the Licensing Board rather than obliging the respondent to seek recoupment under Rule 81 in an enforcement proceeding brought in federal court, the licensing proceeding will be substantially expedited. II. GULF S'2ATES IS NOT A PARTY, AND ITS EFFORTS TO ACT CONSISTENTLY WITH THE BOARD'S PRIOR ORDERS DO NOT RENDER IT THE EQUIVALENT OF A PARTY Both Justice and Brownsville contend that Gulf States is other than a nonparty respondent to a subpoena because it has sought, by Supplemenesl Motion, an additional paragraph 16 to its proposed protective order that would ruintain the integrity of the prior orders of this Licensing Board govern-ing the production of documents pertaining to settlement negotiations involving a party. By orders dated April 16 2172 319
/ 0 and May 7, 1979, the Licensing Board ruled that " documents generated by HL&P and other parties solely as a part of negotiations to settle this proceeding" need not be produced in light of the Commission's policy to encourage settlement negotiations and protect their confidentiality. At the time Gulf States submitted its initial Motion for a Protective Order and an Order Setting Conditions for Compliance, these prior orders of the Licensing Board were unknown to it or its counsel. Alerted to these orders, Gulf States determined that it should request supplemental relief so that by its actions a party could not circumvent the Licensing Board's orders governing settlement negotiations by the simple expedient at demanding the identical documents from a non-party, a rationale Brownsville concedes "has some plausi-bility." --8/ Gulf St_ates does not deny that the documents in question were generated with its technical input.--9/ Similarly, Gulf States has never attempted to hide what is clearly a matter of public record, that. it is a party to a FERC proceeding involving some of the same parties and similar issues. As _8/ Brownsville Answer at 45.
--9/ Gulf States stands ready to provide the Licensing Board with a list of documents in camera to confirm the pro-priety of non-production. --Such a list should be provided in camera, if requested, since the Board has not even re-quired HL&P to provide such a list, presumably on the grounds that to identify the protected documents would divulge confidential information and impair settlement negotiations.
2172 J20
i o must be recognized, Gulf States, which currently operates in Louisiana as well as Te.as, would certainly be affected by any required or agreed upon interconnection resulting from any proceeding, including this one . However, notwithstanding the position of Brownsville and Justice, there is absolutely no reason to attribute to Gulf States either the status or burdens of a party to this proceeding simply on the basis of its status in other proceedings or understandable concern for maintaining the integrity of the Licensing Board's prior orders. e M e 2172 32I
III. NEITHER GULF STATES NOR A CUSTOMER OR CLIENT OF GULF STATES IS UNDER INVESTIGATION BY THE NRC AND ITS COSTS INCURRED IN COMPLYING WITH THE SUBPOENA ISSUED AT THE PZQUEST OF BROWNSVILLE ARE PROPERLY RECOVERABLE Brownsville resists the recoupment principle applicable to compliance with an administrative subpoena by a third party on the grounds that every person has a public duty to provide evidence, and that the costs incurred by Gulf States in complying with the subpoena are merely the normal costs of doing business. The authorities relied upon by Brownsville are misplaced because they pertain to criminal proceedings or proceedings in which an administrative agency was in-vestigating the subpoenaed party itself or its customer or client. This is far different from the instant situation in which Gulf States is responding to a subpoena issued by the Licensing Board at the request of Brownsville, a petitioner merely seeking prehearing discovery, rather than at the request of the regulatory Staff or even the Commission 10/ itself.-- It must be remembered, in this respect, that under 10 C.F.R. 52. 720 (a) , the Licensing Board is obliged to issue a subpoena requested by a party if the documents or testimony sought is determined to be " generally relevant." 10/ Compare Ash Grove Cement Co., supra, and discussion at page 5, supra. 2172 322
The decision in Hurtado v. United States, 410 U.S. 578 (1973), does not support Brownsville's position because that case merely involved the testimony of a material witness incarcerated prior to a hearing in a criminal matter. Like-wise, In re Grand Jury Subpoena Duces Tecum Issued to the First National Bank of Maryland Dated November 4, 1976, 436 F.Supp. 46 (D. Md. 1977), simply involved an analysis of supoena power under Rule 17, F.R. Civ. P., which, unlike Rule 45, F.R. Civ. P., does not provide for a court-ordered shifting of costs from the producing to the requesting 1 l_1_/ party. Brownsville cites a number of cases which have required a bank to provide its records of a bank customer tc the IRS pursuant to its audit or criminal investigation of a tax-12/ payer. The issuance of an administrative summons by the IRS to require the production of a taxpayer's records is substantially different from the subpoena procedure involved here. First, the IRS issues the subpoena only after the 11/
~~
Indeed, as noted in Gulf States' Motion at 6, the Court in that case observed that Rule 45(b) expressly provides for the reimbursement of costs in compliance with a sub-poena and is applicable to a proceeding to enforce an administrative subpoena by virtue of Rule 81(a) (3) . The Court further obsvrved that this provision in the Civil Rules " reflects a significant policy judgment that the weight and import of administrative subpoenas is comparable to that of ordinary civil subpoenas and that witnesses, particularly neutral witnesses, should not bear unreasonable expenses in cor91ying with subpoenas in either a civil or an administrative proceeding." 436 F. Supp. at 48. 12/ See Brownsville Answer at 23, 25. 2172 323
13 - agency itself has determined to its satisfaction that there is a reasonable basis for inquiring further into the taxpayer's financial records. By contrast, when a private party that has merely made allegations of monopoly or anticompetitiveness against someone other than the subpoe:..a respondent requests that a subpoena be issued, the Licensing Board merely determines the " general relevancy" of the documents demanded. In no sense does that subpoena, unlike the summons issued by the IRS, carry an official imprimatur as to the necessity for the demanded documents. Nor i; there any official in-vestigation or record to support the truth of underlying allegations. Thus, with no input from the regulatory or investigative federal agency, a party like Brownsville which requests the issuance of subpoena is under no restraint, other than the broad bounds..of " general relevance," to pare down its document request to discrete matters. In issuing an administrative summons, however, the IRS has narrowed its focus to a single taxpayer's records and is guided by its own sense of restraint as a responsible governmental agency in limiting its document
-13/
demands. - A private party lacks any real incentive to 13/
-- For example, in United States v. Friedman, 532 F.2d 928 (3rd Cir. 1976), the IRF did not insist on the production of all documents at once if the subpoena respondents were to retrieve the documents themselves in order to protect con-fidentiality. The IRS offered to examine critical categories, and then determine if other categories of documents were really needed. Although Brownsville appeared to make such an offer in this case, it has retreated from this position and now in-sists upon full document production under the subpoena even before it has reviewed those documents already assembled for inspection, contrary to its earlier proposal. This signal retreatconfirmsBrownsville'slackofself-restr7YtNA 21
limit its document request unless it stands to reimburse, in whole or in part, the costs incident to retrieving the subpoenaed documents. Accordingly, the efforts required by Gulf States to respond to a document request of a private party in antitrust litigation pursuant to an administrative subpoena issued on the party's behalf must be viewed differently from the efforts of a bank or taxpayer in responding to a request by the IRS pursuant to its audit or criminal investi-gation of the taxpayer. The same is true of an investigation by the FTC regarding the relationship of bank holding companies with energy companies where the holding companies themselves are subpoenaed for information and are, therefore, "not mere repositories of information" sought by a government agency. FTC v. Rockefeller, CCH Trade Regulation Reporter 162,439 (2d Cir, February 1, 14/
-~
1979). Contrary to Brownsville's assertion, Gulf States' production of documents to Brownsville is therefore quite 13/ (cont.) emphasizes the distinction between a subpoena issued at the request of a private party in litigation and a subpoena served by a regulatory agency as part of its own investigation.
~~14/ Indeed, the Court of Appeals observed the nature of the relationship and stated that "it is for that reason that the subpoena could be justified." 162,439 at 76,600.
2172 325
distinguishable from its compliance with other non-subpoena orders of the NRC as part of its overall regulatory functions. A determination by the Commission that further antitrust review at the operating license stage is advisable proceeds on the ground that "significant changes" in the licensee's activities have occurred subsequent to the previous review by the Attorney General and the Commission under 5105c(1) of the Atomic Energy Act of 1954, as amended. --15/ Thus, under the structure of the Act, the Commission relies to a large extent upon the initiative of private parties in making allegations of anticompetitive circumstances to warrant further review at the operating license stage. The statutory structure is therefore different from the Securities Exchange 16/ Act of 1934,-- the Federal Trade Commission Act, --17/ or the Internal Revenue Act of 1954. --18/ IV. THE COSTS INCURRED BY GULF STATES IN RESPONDING TO THE SUBPOENA CANNOT BE FAIRLY CONSIDERED ORDINARY COSTS OF DOING BUSINESS _ Even the distinguishable cases relied upon by Brownsville recognize the discretion of the District Court in conditioning
--15/ In the instant proceeding, the Commission relied upon the
" substantial agreement among the parties" in making its determination that a further antitrust review is advisable because of such "significant change." Houston Lighting &
Power Company (South Texas Project, Units 1 and 2), CLI 13, 5 NRC 1303, 1319 (1977). 16/ Securities and Exchange Commission v. Arthur Young & Co., 584 F.2d 1018 (D.C. Cir. 1978). 1]/ FTC v. Rockefeller, CCH Trade Regulation Reporter, 162,439 439 (2d Cir., February 1, 1979). 18/ E.g., @ ..ted States v. Davey, 543 F.2d 996 (2d Ci 76
compliance with the subpoena upon recoupment of the re-spondent's costs. For example, in United States v. Friedman, supra, the Third Circuit fashioned a reimbursement principle analogous to Rule 45 (b) , F.R. Civ. P. for enforcement of an IRS summons, even though there was no underlying statute or IRS regulation conditioning compliance upon "just and rea-sonable terms" as that language appears in 10 C.F.R. ;i2. 720 (f) . The Second Circuit Court of Appeals also recognized in United States v. Davey, 543 F.2d 996, 1000 (2d Cir. 1976), that a District Court may impose conditions as to costs when enforcing an IRS summons, although it declined to do so in that case because the supoenaed tapas pertained to the activities and tax liability of the taxpayer itself. --19/ Most recently, the Court of Appeals for the District of Columbia in Securities and Exchange Commission v. Arthur Young & Cp., 584 F.2d 1018 (D.C. Cir. 1978), held that reimbursement for expenses incurred in compliance with an SEC subpoena must be considered where justified by the circumstances "in safeguarding against undue financial outlays," particularly by a subpoena respondent which is "not the primary target"
--19/ In an earlier case entitled United States v. Davey, 426 F.2d 845 (2d Cir. 1970), the IRS had subpoenaed documents from a non-taxpayer custodian of records.
The court concluded that the IRS "has the right to re-quire the production of relevant information wherever it may be lodged and regardless of the form in which it is kept and the manner in which it may be retrieved so long as it pays _its reasonable share of the cost of retrieval." Id. an 849 (emphasis added). 2172 327
20/ of the administrative investigation or proceeding. -- The remaining reasons cited by Brownsville for considering compliance with the subpoena a " cost of doing business" are 21/ not persuasive.-- Finally, Brownsville asserts that reimburseme:.t is inappropriate because the costs incurred by Gulf States are relatively small compared to its overall budget, and because Gulf States has failed to establish the amount of those costs. Each of these reasons is erroneous. The Court in Securities and Exchange Commission v. Arthur Young & Co., supra, expressly held that the computation of costs could be postponed until after document production. This avoids the problem of speculating as to the time and effort in-volved in complying with the subpoena, particularly where, as here, there is some doubt whether Gulf States need respond
--20/ 584 F.2d at 1031, 1033. The other cases supporting an allowance of costs incurred by the subpoenaed respondent have been discussed in Gulf States' Motion and will not be repeated herein. In addition, the Board is respectfully referred to United States v. Farmers & Merchants Bank, 397 F.Supp. '418 (C.D. Cal. 1975) (subpoenaed respondent should not bear other than nominal costs in complying with government summons).
~~21/ The fact that Brownsville may wish to compare Gulf States' activities with those of others, including its competitors, scarcely renders the presentation of such a comparison by compiling diverse documents a " cost of doing business." More-over, if Gulf States were truly " vitally affected by the sub-stantive issues before this Board" (Brownsville Answer at 27),
surely intervention would have been sought. While Gulf States may have occasion to review subpoenaed documents for other reasons, (Brownsville Answer at 27), such review is irrelevant to the effort and costs incurred in retrieving the documents specifically in response to the subpoena. Nor can any weight be attached to vague allegations that Gulf States "was aware of or acqu'.esced in joint activities PUD challenges before this Board" (Brownsville Answer at 28). To the best of our 2172 328
to the entire subpoena or only a portion thereof.22/ -- The Affidavit of Donald Clements satisfies Gulf States' burden of proof as to its costs incurred to date in complying with the subpoena. As explained in the Affidavit, several drawers of documents have been amassed from the numerous sources within the Gulf States' filing system, requiring a total manpower effort of about 300 hours at a cost of approximately
$5,000.
These costs cannot be compared with the overall budget of Gulf States because, for the reasons discussed earlier, the costs incurred in complying with the subpoena simply are not
" costs of doing business," like a bank responding to an IRS summons for a taxpayer's records held by the bank. While a bank or auditor might expect periodic requests from the 21/ (cont.),
knowledge, neither Brownsville nor any other party to this proceeding has accused Gulf States of any anti-competitive activity. 22/ The Court of Appeals ruled that it was " unable at this time to rule affirmatively that appellant is entitled to reimbursement, for its actual future expenses con-ceivably could fall far short of its present projection. Its estimate will be vindicated only if the Commission designates every subpoenaed document for copying . ... We cannot ignore the possibility that ultimately the Commission may sett:ie for a much smaller number of documents . . . . There is no need to speculate in this regard. Appellant has expressed its willingness to postpone recoupment of its expenses until after full production in response to this opinion - when of course, the problems of reimbursement could readily be determined." 584 F.2d at 1034 (footnote omitted).. Thus, while Gulf States was criticized for moving forward with production and postponing the issue of reimbursement until retrieval of the demanded documents had been accomplished, the Court of Appeals for the District of Columbia regards this pro-cedure as an eminently fair and responsible 21 approach. 3g 72
IRS for their customers' records, no comparison can be fairly drawn with respect to Brownsville's request to Gulf States for production of its own records. By contrast, if Brownsville had sued Gulf States, alleging anticompetitive activities in conspiracy with other utilities, and had demanded the same documents by way of a Rule 34 request for production, Gulf States would have been clearly entitled to the costs of such production if it prevailed in the litigation. In the present instance, however, Gulf States is a non-party, and there is no way its costs can abide the outcome of the in-stant proceeding. Gulf States is not a party to this pro-ceeding under 5105c(2) of the Atomic Er :gy Act of 1954, as amended, nor have any tilegations of anticompetitiveness on-its part been made by the other parties to this proceeding. Hence, there is nothing for it to " prove," and no mechanism other than the "just and reasonble terms" provision of 10 C.F.R. 52. 720 (f) to recoup its costs in furnishing documents to Brownsville. Thus, the issue is not whether such crsts are burdensome in light of Gulf States' overall operating expenditures, but whether it is just and reasonable that such costs be borne by an innocent thir? party. In FTC v. Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977), cert. denied, 431 U.S. 974 (1977;, upon which Brownsville relies to support its " comparison" theory, by contrast, the FTC was investigating the withho'lding of natural gas reserves 2172 330
by energy companies, which themselves had been supoenaed for documents. In sustaining the subpoena,.the Court of Appeals distinguished the situation: "This is not a case in which the subpoena is directed to a third party not under investi-22/ gation." Similarly, In Re Grand Jury Subpoena Duces Tecum Issued to the First National Bank of Maryland Dated November 4, 1976, supra, and Application of Radio Corporation of America, 13 F.R.D. 167 (S . D .N .Y . 1952), which involved grand jury inves,tigations,are irrelevant to recoupment of costs under Rule 45(b) or an analogous administrative regu-23/ lation, such as 10 C.F.R. 52.720 (f) . Likewise, cases such as FTC v. Rockefeller, supra, are inapposite insofar as they pertain to the costs of production since, as noted earlier, they pertain to subpoenas directed squarely at a party under investigation by a federal adminis-trative agency. --24/ Accordingly, the comparison of the 22,/ 555 F.2d 883 n.59.
--23/
Brownsville cites United States v. Morton Salt Co., 338 U.S. 632, 642 (1950) for the proposition that a grand jury subpoena is analogous to an administrative subpoena. How-ever, the Supreme Court compared the two only by saying that an administrative subpoena, like a grand jury subpoena, serves an investigative purpose and need not be premised upon a case or controversy to be valid. 24/
~~
The other cases relied upon by Brownsville in support of its analysis are also irrelevant. In fact, in Goodman v. United States, 369 F.2d 166 (9th Cir. 1966), the subpoenaing party agreed to help bear the costs of production. The decision in Westinghouse Electric Corp. v. City of Burlington, Vermont, 351 F.2d 762 (D.C. Cir. 1965) Involved no issue of cost what-ever, and the subpoenaing party offered to restrict itself to a partial search tentatively in order to lessen the burden of production. Similarly, Sullivan v. Dickson, 283 F.2d 725 ( 9 th Cir . 19 60 ) , cert. denied, 379 U.S. 984 (1965), did not pertain to the costs of producing documents, but rather to the production of a criminal record of a medical examination 2172 331
expenditures by Gulf States in complying with the subpoena with its overall budget is immaterial, since the costs of compliance with the subpoena drafted and requested by Brownsville are not, in a practical business sense, " normal costs of doing business" incurred by responding to an investigation initiated and conducted by the regulatory agency itself. V. AL'. OF THE COSTS REASONABLY INCURRED BY GULF STATES SHOULD BE ALLOWED None of the "several points" argued by Brownsville as to the amount of costs recoverable (Brownsville Answer at 34-38), has any merit. First, Brownsville asserts that it should not have to pay for any of Gulf States' efforts in screening its documents so as not to disclose privileged or confidential information. The distinction urged by Browns-ville is fatuous. It cannot be disputed that Gulf States, like any other subpoena respondent, has a right to protect privileged or confidential information. The protective orders issued by the Licensing Board in this very proceeding fully recognize this principle, and, indeed, even the sub-poena issued to Gulf States recognizes the right to assert a claim of privilege with respect to demanded documents (See Instructions at p. 8). Since screening for privileged or 24/ (cont.) in a habeas corpus proceeding. Finally, in United States
- v. Davey, 543 F.2d 996 (2d Cir. 1976), the IRS subpoena respondent was the taxpayer under investigation, and the issue there was not the cost to be incurred in retrieving documents, but rather the cost of duplicating certain subpoenaed tapes.
2172 332
confidential information that should not be disclosed is a necessary concomitant of production, it follows that these costs are necessarily incurred in the subpoena response and are reimbursable. Brownsville also claims that its personnel were willing 25/ to travel to Beaumont to search files themselves. In fact, while there was some limited discussion with Gulf States' Washington, D. C. counsel about the place at which the documents would ultimately be produced, depending on their bulk, there was no discussion whatever regarding a " search" by Brownsville of Gulf States' files. Indeed, Gulf States would not have agreed to such a procedure, in light of its entitlement to protect privileged and confidential documents. Even in the IRS subpoena cases, the courts have recognized that the respondent bank may decline to permit the IRS to search bank files and retrieve documents in order to protect the confidentiality of the bank's records. See, e.g., United States v. Friedmen, supra, at 934. Moreover, as indicated by the Affidavit of Donald Clements, the possi-bility of a file search by Brownsville personnel would have been precluded, in any event, by the sheer dimensions of the areas to be searched and the bulk of the files to be reviewed. It is naive to believe, as Brownsville suggests, that Gulf States could comply with he subpoena by opening up discrete files or drawers of information. 25/ Brownsville Answer at 35. 2172 333
Brownsville's " willingness to negotiate" as to a
" discovery compliance method in even more steps than the 26/
March 5 schedule"-- cannot be taken at face value. As noted earlier, Brownsville has retreated from its prior offer to examine the documents in the narrower March 5th schedule before demanding other documents required by the subpoena. Thus, as the matter stands now, Brownsville will not even agree to the two-step production to which it had 27/ initially committed itself, let alone multi-step production. -~ Brownsville'further asserts that the production of certain categories of documents could not be burdensome 28/ because they are " regularly supplied to regulatory agencies."-- On the contrary, it is inherently burdensome for a party to produce documents which are otherwise publicly available: The rationale for permitting an independent action for production of documents and things from a non-party witness presumes a situation in which the items sought are un-available from a party . . . or are not otherwise obtainable by the movant's own efforts. 2j!/ 16/ Brownsville Answer at 35. J7/ Informal negotiations on production continued up until the point Brownsville counsel received a draft of the motion to be filed by Gulf States. At that time, notwithstanding assurances from opposing counsel to continue negotiations, Brownsville abruptly ceased further communication and re-sponded with its 55-page Answer two weeks later. Thus, the prospect of " informal negotiation" as a method for reducing costs was obviously never viable. 28/ Brownsville Answer at 36. 29/ In Re Penn Central Commercial Paper Litigation, 61 F.R.D. 453, 467 (S.D.N.Y. 1973). See also Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, 40 F.R.D. 318, 328 (D.D.C. 1966); United States v. E.I. DuPont de Nemours & Co., 14 F.R.D. 341, 345 (N.D. Ill. 1953).
Brownsville offers no explanation as to why publicly available documents coula not and were not obtained from the appropriate regulatory agency. In any event, the affidavit of Donald Clements establishes the time that was in fact required to retrieve, review and assemble the demanded documents, whether publicly available or not. VI. BROWNSVILLE'S REMAINING POINTS AS TO THE PROPER FORM OF THE PROTECTIVE ORDER TO BE ENTERED BY THE LICENSING BOARD ARE WITHOUT MERIT By letter dated March 5, 1979, coun.ael for Brownsville forwarded to Gulf States' counsel a Schedule containing a list of topics drawn from the subpoena served on Gulf States, which Brownsville regarded as " essential." The Schedule was proposed as an alternative document production "as c means of accommodation, and without prejudice to Brownsville's right to seek compliance with the NRC subpoena." The letter
..lso noted that " informal coop 2 ration will be advantageous to GSU as well as Brownsville, and will speed the preparation of our case." Gulf States has accepted and relied upon the proposed "means of accommodation," and has assembled all documents responsive to the narrower demands of the Schedule attached to the March 5th letter, subject to appropriate claims of privilege.
Now, however, Brownsville insists upon compliance with the entire subpoena, even before it has reviewed those documents already compiled for production. While Browns-ville's proposal was made "without prejudice" to its right 2172 335
to seek compliance with the entire subpoena, Brownsville was obviously prepared to forego its demands for certain docu-ments in exchange for Gulf States' " informal cooperation" in order to " speed the preparation of (its) case." At a minimum, the Board should require that Brownsville review the documents already assembled for production prior to requesting other documents not yet retrieved, and that Brownsville make a prima facie showing of need as to other documents it may later seek. Otherwise, Brownsville's proposal for a more limited production and Gulf States' reliance upon this offer are rendered meaningless. Gulf States, as a non-party, should not be required to expend its own time and effort searching for documents only "of relatively . . . less interest" to 3L/ Brownsville. , obviously, the sequence in which certain documents are retrieved, as opposed to the bulk of documents demanded, is practically inconsequential to Gulf States. It makes no sense for Gulf States to have negotiated or proceeded with document production on the basis of Brownsville's priorities alone, without tying any agreement to the total 30/
-- Even Brownsville concedes that its proposal was intended "to reduce or even obviate certain additional pceduction of documents." Brownsville Answer at 5.
g/ Brownsville Answer at 7. 2172 336
6-32/ number of documents to be produced. For these reasons, Gulf States should not be required to produce, at least at this time, documents other than those responsive to the revised Schedule in accordance with paragraph 1 of the proposed protective order. Brownsville has requested that Gulf States be ordered to produce a list of documents which are privilegid because they were generated solely as a part of settlement negotiations. As discussed at length earlier, Gulf States has simply acted to protect the integrity of the Licensing Board's prior orders and has voluntarily offered to produce such a list in 3,3/ camera, .as well as produce the documents themselves, in camera, should the Board so desire. Accordingly, we do not respond to Brownsville's arguments on this point except to note that the settlement negotiation documents should be withheld under paragraph 16 of the proposed protective order until the Licensing Board determines that they should other-wise be produced. Brownsville seeks to limit the definition of " confidential business information" in paragraph 3 of the proposed protective 32/ In this respect, we dispute the many representations of counsel in Brownsville's Answer, including the several self-serving recordations and counse]'s memoranda to files. In particular, counsel was fully advised during the relevant period that Gulf States was limiting its subpoena response to those documents indicated by the Schedule attached to counsel's letter of March 5, 1979. 33/ An in camera presentation is appropriate since, even as Brownsville acknowledges, the Board has ruled that HL&P need not produce even a list of such settlement negotiation documents. Brownsville Answer at 45 n.l. 2172 337
order to " current" studies or joint projects. Brownsville simply misapprehends the nature of privileged information. A document does not lose its privileged character simply with passage of time. If this were so, a lawyer's advice to his client would no longer be privileged after the client's case had ended, and the President's instructions to an ambassador would become non-privileged at the end of his Administration. Obviously, an attorney / client or Executive privilege does not evaporate because the events or circumstances in which context the privilege statements were uttered have concluded. Similarly, it cannnot be said that disclosure of privileged proprietary matters will not adversely affect the position of a business with its competitors if the matters disclosed are not " current." Even relatively older infor-mation may give a competitor an unfair competitive edge, and will in any event discourage third parties from providing proprietary information to a business, like Gulf States, out of an apprehension that the privileged information will at some later date be revealed without its knowledge or consent. Brownsville also proposes that paragraph 5 (iii) of the proposed protective order be amended to allow Brownsville personnel access to confidential documents. Since the very purpose of paragraph 5 is to limit confidential documents in a manner such that they are not accessible to the parties themselves, the proposed amendment would effectively destroy the claimed privilege. No precedent has been cited to authorize disclosure of confidential information to a party 2172 338
itself. The adverse consequences of unauthorized disclosure cannot be fairly shifted to Gulf States simply because Brownsville maintains that it has not retained independent consultants or technical experts. Gulf States relies upon the language of its proposed protective order in opposition to the additional modifications suggested by Brownsville, and respectfully refers the Board to its previous orders of March 23 and April 9, 1979, both of which show that the proposed order submitted by Gulf States is in accord with prior precedent. CONCLUSION For the reasons discussed above and in the movant's initial pleading, the Motion for a Protective Order and an Order Setting Conditions for Compliance with Subpoena should be granted. Respectfully submitted, CONNER, MOORE & CORBER Mark J. Wetterhahn Robert M. Rader Counsel for Gulf States Utilities Company, appearing specially May 31, 1979 2172 339
f ATrlDMli g it:L SLATE Of TDA5 i [ C0tiNTY Of JEFFErts0N l t BLFORL ME, the undersigned authority, nn this day personhlly I appeared Donald M. Clemnts Jr., known to me to be the person whose i narrf is subscribed hereto, who first being duly sworn did upon his oath
! depose end say as iollows: ! "My name is Donald M. Clemnts, Jr. My business address is i 225 Libery Street, Beau':ont, Texas 77701. 1 an employed in the
{ position of Staf f Attorney by Gulf States Utilfiles Company. L "On or about March 6, 1979 1 accepted, on behalf of Gulf States i Utilities f,txnpany, service of a subpoena issued by the United States i of Awrica Nuclear Regulatory Comission, in Docket No. SU-49M and t i 50 49 % Af ter service of this subpnena, Gulf States received. through retained counsel, a copy of a Schedule, attached hereto, which reflected those itams indicated by attorneys for the City of Brownsville to be most significent to them imediately thereaf ter. On or about March 9,1979, a meeting was called among varinus Culf States renagement personnel, which meeting 1 attended. Instructions were given at this meeting to 3 cx' ply with the Schedule which had been presented. Mr. Virgil Shaw, Contract,CoordinStor, assuned the rnie of coordinotor of the efforts. Mr. Shaw irr,ediately set about making a place available for the presentation of the requested docteents and urging prorrpt response frrra the varicus departments involved. He frequently reported to ma his progress in locating and neking various files available for inspection.
" People were contacted drwrel various departcietits at Gulf States with reuuests to produce wha tever iniogr.a tion the.y might have availotsie whir.h was respcmsive to the reriuest in the Schedule. lor the most part, the cepartrents produced entire files concerning different atters, wnich files were then reviewcd in order to detemine their resprinsiveness.
The Gulf States' f acilities (omprisir;p the corporate headquarters in Etaumont, Te/as, are spread nut a'mng five (5) huildings in downtewn Beaumont, only two (?) of which are physically connected. This has Nde necessary the transporting of files and r%terials from one building to another, in order to make them available in one physical location to 119.= greatest cytent possible. Sore documents have been retained in individual dephrtments, because of the continual need for surh dectnrents. The raterials teade available for inspection would fill approxira tely three or four filing drawers. The noterials consist of various maps and drawings, file folders containing (orrespondence and repnets, and bound reports. An effort has been made to break down the riaterials into the classificatfors set out in the Sc hedule presented b.y the attorneys for Erewnsville, but because of the nature of the P00RORUEL 2172 uo
materials there is some overlap frr>m one classification to another. The materials were reviewed in order to ascertain whether or not they were responsive, and to determine whettar they contained confidential, proprietary or otherwise privileged inform 3 tion. A principal concern of Gulf States has tw en to pmtett th8t infor12 tion which, if released, 11ight hJm third parties withwhom Gulf States has transacttd nr is curtently transacting business and thus be censidered proprietary by Gulf States or such third party.
"At the tim of the initial Sectings amng management personnel such personnel were instructed to I.eep track Of TID 2 expended in o!!tain-ing and reviewing the documents presented in compliance with the wtgoena.
A listing of the estimated hours as prnvided by the named persons or their representatives is attached hereto. This list is for time egended through April 30, 1979. A dollar value for the tine e< pended was corp,uted by ecch indivic'ual b annual hours worked)y dividing the
, mitiplying theannual resultingsalary by P,000 figure by the(representing rmber of
_ hours worked in contvfction with this Ntter, and adding thereta an addition-al one-third as ove: nead costs. Further af fiant saith not,
' ) $ b .4 pj u -.
Donald M. Clements, Jr. g SUBSCRIBED NiD 5'n'Oh!i TO BETOPI MT int tm0(R$1stilp AWHCRjlY en thir, 51d d3y of ,7 _ ,_
,1979, Lt.in 5Au0_
fiatary Fuhlic In and for /' Jef fersen County
- ]"e .w.m
- r. '.. v,c,rv.n,un',s
. ., t. Ac.g g
%, . CMt*Mb % p. J,.yf __
?00RORIGNa 2172 30
- SClicui r.R
[ - A,- Mape sufficient to indfeste all actua'l end projected CSU s i transmincion end subtransniccion llnes 1cented within the I i St.ste of Tc.rar, (l(a)) i I j B. All documente relating to each offer of certicipation in i any nuclear electric generating unit located in Tc:<53, j made or received by GSUJ all documents relating to par-l ticipation, actual or potentiel, by any electric utility j in the South terns Units, incimiing the terms and con-j ditions, limltations or reetrictions of such I
} participation. (5ts) & (b))
t j C. All documents Islating to CSU policy tnr sale of power, ectabilshing terms fot sale ci pcwer, or to intereennected operation or tranGr.ission services by GEU tc =Unlcipally or .l ccoperatively owned and/or operated electrie ut!11 ties i located in i: ole er in part in the state o( Texas. (Parts , I of questions 6,7,S,9,10,11) 4 y D. All dccusents IcLating to policy for participation by any
- ! utility located th whole cr in part in Te::.3s !c cny r generation facility of which CSU is whole or part canor.
i (6(b)) { c. ' All prinedysl documenta relating to c:ch r*ason ::! y CSU h i - doe.9 cet operate in synchroniam with any electric
; utility that is a me=ber of TIS; all decuw.nts relat!nq i to relative advantagen to any electric utility cf operi- )
tion eolely within the state of Ter.c2 an1 <>ror a ting. In { t interstate cosmerce; all docuo6nts reisting to sny c.tudy ; r or :tport by any electric utility, or by any state o. f ederal r;cncy that regulates electric utilitics, the i i sub$ect of which relates to, in Whole or in part, poten-
- t141 cperAtion of any electric utility or ut!11 tief.9 2 octually croreting solely within the state of. Te:n.- to .3 3
- to place such utility or utilities into interstato cc. -
r.erec { including docuacnts relating to c02 mnication: bct-ween CSU and any other electric utility relat inq tc ano
- sucn study .): t epor t ) (13(2), (b) 1 (c)).
2172 342
~
k. 1
. . . )
I _ t' . id L dC:aaants re.1:: ting tu the t.:h.711.s.s L.? 1 ate of Fcuor $ ar.6/cL- 49 ny EU to Col.lege Statior., h.vue, including i rate; Jnd tcrns r.^.2 conOtreetico of int.erwnnee t ions sudf.)r trar.Satts.ich linh. {l4(4), fb) & (c)) ,
- 4. hil doenmente relating to actual, ptantial, possible cr contc mlate.-i comper.i.t!.cn bet. teen G3U &nd any oth6Y
<.lcetric utilit.y located in Texas. (IS)*
ea a
%BR BR11%L 1
.e O
O i i s 5
- e em 9.e .
- e
- We p 2172 5 0
. .ee M M M W
,l
~ ~
NRC SUBPOEHA Nar!e Hours fol_lars G. Goodson 20.5 302.00 D. Clements 30.25 328.00 A. Haylor 8,0 131.00 V. Shaw 151.00 3,397.00 P. Liddle 6.00 59.00 C. Anderson 2.0 22.00
- t. Gerac 10,03 184.00 W. Heaner 6.0 187.00 C. Johnson ,
6.0 115.00
- v. Ward 1,o 33,99 S. Baker 3.00 78,0a B. Raine5 16.00 160.00 B. Rogers 4 00 55.00 D. Wheeler 1,00 10 00 M. Cole 1.00 20.'00 J. Moses 2,og j R. Cecil 4 00 64.'97 00 1.00 20.00
{. Bourn?
.. Sterlin9 4.00 58.00 P. Lancon 4 00 33.00 J. Iranks 4 00 50.00 P90R ORillNAL
. . 2172 344
I . UNITED STATES OF AMERICA 8 '* BEFORE THE - NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
Houston Lighting & Power Company ) Docket Nos. 50-498A The City of San Antonio ) and 50-499A The City of Austin ) Central Power & Light Company- ) (South Texas Project, Unit Nos. ) 1 ed 2) ) CERTIFICATE OF SERVICE I hereby certify that copies of " Reply Brief of Gulf States Utilities Company to Answers of the Department of Justice and the Public Utilities Board of the City of Browns-ville," dated May 31, 1979, in the captioned matter, have been served upon the following by deposit in the United States mail this 31st day of May, 1979: Marshall E. Miller, Chairman Joseph J. Saunders, Esquire Atomic Safety & Licensing Board Chief, Public Counsel & Panel Legislative Section Nuclear Regulatory Commission Department of Justice Washington, D. C. 20555 P. O. Box 14141 Washington, D. C. 20044 Sheldon J. Wolfe, Esquire Atomic Saf ety & Licensing Board Joseph Gallo, Esquire Panel Richard D. Cudahy, Esquire Nuclear Regulatory Commission Robert E. Loeffler, Esquire Washington, D. C. 20555 Isham, Lincoln & Beale Suite 701 Michael L. Glaser, Esquire 10 50 17 th S tree t , N. W. 1150 17th Street, N. W. Was hing ton , D. C. 20036. Washington, D. C. 20036 P00R ORGINAL . 2172 ;45
I, .
~2-John D. Whitler, Esquire Joseph Rutberg, 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 Debevoise & Liberman Cffice of the Secretary 1200 17th Street., N. W.
Nuclear-Regulatory-Commission Washington, D.. C. 20036 Washington, D. C. 20555 - Douglas F. John, Esquire Joseph f. Worsham, Esquire Akin, Gump, Hauer & 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 K L Hancock, Director Robert Lowanstein, Esquire City of Austin Electric J. A. Ecukn.ght, Jr., Esquire Utility Department Lowenstein e 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 Austin, Texas 78767 1025 Connecticut Avenue., N. W. Washington, D. C. 20036 Richard C. Balough, Esquire Assistant City Attorney Frederick H. Ritts, Esquire City of Austin Law Offices of Northcutt Ely P. O. Box 1088 Water'ga.te 600 Building Austin, Texas 78767 Washington, D. C. 20037 Dan E. Davidson Wheatley & Wolleson City Manager 1112 Watergate Office Building City of Austin 2600 Virginia Avenue, N. W. P. O. Box 1088 Washington, D. C. 20037 Austin, Texas 78767 9 P00R OR H 1 2172 646
i - n.. o.
'Roff Hardy, 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 P;blic Service Board McGinnis, Lochridge & Kilgore P. O. Bor 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 Texa.s Utilities Generating P. O. P 12548 Company Capital Station 2001 Bryan Tower Austin, Texas 78711 Dallas, Texas 75201 E. W. Barnett, Esquire John E. Mathews, Jr., Esquira Charles G. Thrash, Jr. , Esquire Mathews, Osborne, Ehrlica, Baker & Botts McNatt, Gobelman & Cobb 3000.One Shell Pla=a 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 Pla=a orlando, Florida 82803 Ecuston, Texas 77632 Somervell County Public Library G. W. Cprea, Jr. P. O. Box 417 Executive Vice President Glen Rose, Texas 76403 Ecuston Lighting & Power Company P. O.- Box 1700 Maynard Human, General Manager Houston, Texas 77001 Western Farmers Electric Coop.
P. O. Box 429 Anadarko, Oklahoma 73005 PDDRORGNAL 4
"". l *~ W. S. Robson, General Manager
- South Texas Electric Cooperative, Inc. James E. Monahan Route 6, Building 102 Executive Vice President and Victoria Regional Airport General manager Victoria, Texas 77901 Brazos Electric Power Cocp., Inc.
P. O. Box 6296 Michael I. Miller, Esquire Waco, Texas 76706 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 Thomas G. Ryan, Esquire Jerome Saltzman, Chief Isham, Lincoln & Beale Antitrust A Indemnity Group One F-irst National Plaza Nuclear Regulatory Commission Chicago, Illinois 60603 Washington, D. C. 20555 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 2172 548
.P00-.R OR'GINa t}}