ML19276E523

Joint Motion for Protective Order to Ensure Confidentiality of Info & Documents Produced by Movants & to Allow for Development of Evidence.Proposed Order & Certificate of Svc Encl

ML19276E523
Person / Time
Site:	South Texas
Issue date:	03/01/1979
From:	Cohn R, Leidl R BUTLER, BINION, RICE, COOK & KNAPP
To:
References
NUDOCS 7903140601
Download: ML19276E523 (19)

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UNITED STATES OF /sMERICA NUCLEAR REGULATORY CCMt'ISSION BEFORE THE ATOMIC SisFETY AND LICENSING DOARD NRC PUBLIC DOCUMENT ROOM In the Matter of  :

IlOUSTON LIGHTING AND POWER COMPANY  :

THE CITY OF SAN ANTONIO  : Docket Nos. 50-498A TIIE CITY OF AUSTIN and  : 50-499A CENTRAL POWER AND  :

LIGHT COMPANY  :

(South Texas Project, Units Nos.  :

1 and 2).  :

JOINT MOTION FOR A PROTECTIVE ORDER Comraunications with respect to this document should be addressed to the following:

R. Bruce Whitney, Esq. Jonathan Day, Esq.

Air Products and Chemicals, BUTLER, B I N I O tl , RICE, COOK Inc. & KNAPP P.O. Box 538 1100 Esperson Buildings Allentown, Pennsylvania 1810 5 Houston, Texas 77002 Ross Austin, Esq. Robert E. Cohn, Esq.

E. I. DuPont de Nemours & Co. Richard J. Leidl, Esq.

Wilrai ng to n , Delaware 19898 EUTLER, DINION, RICE, COOK

& KNAPP John Stapleton, Esq. 818 Connecticut Avenue, N.U.

Nonsanto Conipany Washington, D.C. 20006 800 North Lindbergh St. Louis, Missouri 63166 Attorneys for Joint Movants Paul M. King, Esq. cu PPG Industries, Inc. / D One Gateway Center g Pittsburgh, Pennsylvania 15222 // eg2

• I Stanley Baurablatt, Esq., @ g i1979) p t Union Carbide Corporation -

270 Park Avenue T;t.,.,,,a o s.a*=

New York, New York 10017 6 5""

March 1, 1979 9 m

790314O(9O/

UtJITED STATES OF AMERICA 11UCLEAR REGULATORY COMMISSIOI!

BEFORE TI!E ATOMIC SAFETY Af1D LICEliSIt!G EOARD In the Matter of  :

IlOUSTON LIGIITI!1G AIJD PCWER COMPAI1Y  :

Ti!E CITY OF SAN IstiTONIO  :

THE CITY OF AUSTIII and  : Doche t IJos . 50-498A CENTRAL POWER AIJD  : 50-499A LICIIT COMPAIJY  :

(South Texas Project, Units IJos.  :

1 and 2).  :

JOIl1T MOTIO11 FOR A PROTECTIVE ORDER Pursuant to 10 C.F.R. sections 2.740(c) and 2.790(b)(6), Air Products and Chemicals, Inc., C. I. DuPont de I!emours & Co., Mon-santo Company, PPG Industries, Inc., and Union Carbide Corporation,

( "ruov a n t s " ) , hereby jointly move for the issuance of the attached protective order (Exhibit A) concernira the public disclosure of trade secrets or other confidential commercial information and documents obtained in connection with (1) depositions of five emp3 rices of movants pursuant to an agreeuent among raovants, Central Power and Light Company (CPL), and the Public Utilities Board of the City of Crownsville, Texas (Brownsville), (2) the production of documents or information of movants to CPL pursuant to an agreement between CPL and movants and (3) the production by movants of any documents or information voluntarily or otherwise in tinis or any other proceeding before the Atomic Safety and Licensing Board.

_2-On February 16, 1979, the novants filed a joint motion to quash related subpoenas for the production of documents and depositions issued by the Atomic Safety and Licensing Board on Juanuary 31, 1978 on the application of CPL. Subsequently, Brownsville, an intervenor in the captioned proceeding, filed a " Motion In Opposition to the Motion to Quash Subpoenas" and submitted an application dated February 22, 1979 to the Atomic Safety and Licensing Board for the issuance of a subpoena for the deposition of Mr. Robert L. Wright of Union Carbide Corporation.

By motion filed on March 1, 1979, movants, CPL and Browns-ville jointly requested the withdrawal of all applications by CPL and Brownsville for subpoenas directed to movants, the withdrawal of the subpoenas themselves, the withdrawal of the motion of movants to quash the subpoenas and the withdrawal of the motion of Brownsville in opposition to the motion to quash the subpoenas. Movants, CPL and Brownsville have agreed that, subject (1) to the withdrawal of all subpoenas against movants and (2) to the prior issuance of an appropriate protective order preventing the public release of confidential commercial information or trade secrets and limiting such release only to counsel for the parties and their independent consultants, movants will furnish for deposition the employees set forth in the respective subpoenas and such depositions will be limited to inquiries concerning areas covered by the following documents, which the movants agree to produce:

1. All documents which relate to the testimony given by the deponent before the Public Utility Commission of Texas in Docket No. 1776 (Generic Rate Hearings).

2. Documents suf ficient to show the typical considera-tion accorded electric utility rates, costs, reliability of service or availability of service in a plant or facility siting or locational decision of a movant.

3. Examples of documents which shou, describe or relate to comparisons, contrasts or studies the objective of which, in whole or in part, was to access or evaluate different electric utility companies in terms of rates, costs, reliability of service or availability of service.

4. Best efforts to obtain documents since January 1, 1976 which show, describe or relate to attempts on the part of any electric utility operating, in whole or in part, in Texas to provide new or expanded electric service to prospective or current plants or facilities of a movant.

Although the joint movants are voluntarily providing the opportunity for discovery in accordance with the aforementioned terms, the documents produced or exhibited by the joint movants and testimony of the deponents may contain trade secrets or in-formation, data, or material which are privileged, confidential and proprietary. The disclosure of such confidential business information could adversely and substantially effect the competi-tive position of a movant.

_4_

In order to ensure the confidentiality of the information and documents produced by movants and at the same time to allow for the development of evidence in this proceeding, movants re-quest the issuance of the attached protective order (Exhibit A) by the Atomic Safety and Licensing Board limiting the release of any confidential information only to counsel for the parties and/or their independent consultants.

flovants urge expeditious action on this motion since, under the agreement described above the issuance of a protective order is a precondition to the production by movants of witnesses for deposition and documents.

WIIEREPORE, movants respectfully request that the attached protective order be issued.

Respnctfully submitted, f

I i -

Vf& . / / ' A&

tobert E .' Coh n~

hsI Riciihrd J.

\

Lliic'I 1: ~'

BUTLER, BINION, RICE, CCOK & KNAPP Attorneys for Air Products and Chenicals, Inc.

E. I. DuPont de Nemours & Co.

Monsanto Company PPG Industries, Inc.

Union Carbide Corporation

EXHIBIT A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of  :

HOUSTON LIGHTING AND POWER COMPANY  :

THE CITY OF SAN ANTONIO  : Docket Nos. 50-498A THE CITY OF AUSTIN and  : 50-499A CENTRAL POWER AND  :

LIGHT COMPANY  :

(South Texas Project, Units Nos.  :

1 and 2).  :

ORDER WHEREAS, documents and information may be produced, exhibited, or provided by Air Products and Chemicals, Inc., E.I. DuPont de Nemours & Co., Monsanto Company, PPG Industries, Inc. and Union Carbide Corporation (each referred to as a " Company" and collecti aly as the "Cor: p an ic s ") in connection with the captioned proceeding or related proceedings. which material relates to trade secrets or other confidential commerical information which may be exempt from public disclosure under 10 C.F.R.

sections 2.740(c) and 2.790(b),

IT IS HEREBY ORDERED THAT:

1. Confidential business information for purposes of this order is information which concerns or relates to the trade secrets or other confidential business plans, pro-cedures, relationships or arrangements, of any kind which if disclosed have the potential of causing substantial harm to the competitive position of the person, firm, partner-ship, corporation, or other organization from which the information was obtained and as to which that person, firm, partnership or corporation could claim confidential treatment under 10 C.F.R. sections 2.740(c) and 2.790;

2. Any information submitted in this proceeding which is asserted by a Company to contain or constitute such confidential business information shall be so designated by such Company in writing, or orally at a deposition, and shall be segregated from other information being submitted.

Documents shall be clearly and prominently marked on thcir face with the legend: " [ Company 's name] CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER," or a comparable notice. Such information shall be disclosed at any hearing only in camera before the Nuclear Regulatory Commi ssion , (" Commission" ) , the Atomic Safety and Licensing Board (" Board") or the officer presiding over this proceeding.

3. In the absence of written permission from the Company or an order by the presiding officer, any confi-dential documents or business information submitted in accordance with the provisions of paragraph 2 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 testimony involving such documents or information and necessary stenographic and clerical personnel thereof; (iii) independent con-sultants and technical exports and their staff who are engaged directly in this litigation; (iv) the Commission, the Board, the presiding officer, or Commission's staff.

4. Confidential business information submitted in accordance with the provisions of paragraph 2 above shall not be made available to any person designated in para-graph 3(i) and (iii) unless they shall have first read this order and shall have agreed, in writing: ( L) to be bound by the terms thereof; (ii) not to reveal such con-fidential business infornr. tion to anyone other than another person designated in paragraph 3; and (iii) to utilize such confidential business information solely for purposes of this proceeding.

5. If the Commission or the Board orders, or if the Com-panies agree, that access to or dissemination of, information sub-mitted as confidential basiness information shall be made to persons not included in paragraph 3 above, such matter shall only be accessible to, or disseminated to, such persons based upon the conditions pertaining to, and obligations arising from this order, and such persons shall be con-sidered subject to it.

6. Any confidential business information, submitted to the Commission, Board or the presiding of ficer in connection with a motion or other procedural device within the purview of this proceeding shall be submitted under seal pursuant to paragraph 2 above. Any portion of a transcript in connection with this proceeding con- )

taining any confidential business information submitted pursuant to paragraph 2 above shall be bound ceparately and filed under seal. When any confidential business in-formation submitted in accordance with paragraph 2 above is included in an authorized transcript of a deposition or exhibits thereto, arrangements shall be made with the court reporter taking the depe3ition to bind such confi-dential portions and separately label them "[ Company's name),

/

CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER." Before a court reporter receives any such infor-mation, he or she shall have first read this order and shall have agreed in writing to be bound by the terms thereof. Copies of each such signed agreement shall be provided to the Company providing such confidential bus-iness information.

7. The restrictions upon, and obligations accruing to, persons who become subject to this order shall not apply to any information submitted in accordance with paragraph 2 above to which the person asserting the confidential status thereof agrees in writing, or the Commission, the Board or the presiding officer rules, after proper notice and hearing, was publicly known at the time it was supplied to the receiving party or has since become publicly known through no fault of the receiving party.

8. Any document or information submitted as confidential business information pursuant to paragraph 2 above is to be treated as such within the meaning of 5 U.S.C. 552 (b) (4) and 18 U.S.C. 1905, subject to a final ruling, after notice, by the Commission, Board, the presiding officer, or the Commission's Freedom of Information Act Officer to the contrary, or by appeal of such a ruling, interlocutory or otherwise.

9. The Commission's staff shall take all necessary and proper steps to preserve the confidentiality of, and to protect each Company's rights with respect to, any confidential bcsiness information designated by the Company in accordance with paragraph 2 above, including, without limitation, (a) notifying the Company promptly of: (i) any inquiry or request by anyone for the substance of or access of such confidential business infor-mation, other than those authorized pursuant to this order, under the Freedom of Information Act, as amended (5 U.S.C.

r 52) , and (ii) any proposal to declassify or make public any such confidential business information; and (b) pro-viding the Company at least seven days after receipt of such inquiry or request within which to take action before the Commission, the Board, its Freedom of Information Act Officer, or the presiding officer, or otherwise to preserve the confidentiality of and to protect its rights in, and to, such confidential business information.

10. If confidential business information submitted in accordance with paragraph 2 is dicciose9 to any' person other than in the manner authorized by this protective order,

the person responsible for the disclosure must immediately bring all pertinent facts relating to such disclosure to the attention of the Company and the presiding officer and, without prejudice to other rights and remedies of the Company, make every effort to prevent further dis-closure by it or by the person who was the recipient of such information.

11. Nothing in this order shall abridge the right of any person to seek judicial review or to pursue other appropriate judicial action with respect to any ruling made by the Commission, its Freedom of Information Act Officer, the Board or the presiding officer concerning the issue of the status of confidential business information.

12. Upon final termination of this proceeding, each person that is subject to this order shall assemble and return to the Company all items containing confidential business information submitted in accordance with paragraph 2 above, including all copies of such matter which may have been made, but not including copies containing notes or other attorney's work product that may have L2en placed thereon by counsel for the receiving party. All copies containing notes or other attorney's work product shall

be destroyed. Receipt of material returned to the Company shall be acknowledged in writing. This paragraph shall not apply to the Commission, the Board, the presiding office" and the Commission's staff, which shall retain such material pursuant to statutory requirements and for other recordkeeping purposes, but may destroy those additional copies in its possession which it regards as surplusage.

A copy of this order shall be served on all parties.

BY ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD J

,, 1979

CERTIFICATE OF SEltVICE I hereby certify that I have this day served a copy of the foregoing Joint Motion for a Protective Order on all parties set forth in the attached list by first-class mail, postage prepaid.

/W Robert C. Cohn, Esquire Counsel for the Joint Movants tiarch 1, 1979

'ichard S. Salzman, Esquire R. Bruce Whitney, Esq.

l.S. Nuclear Regulatory Commission Air Products and Chemicals, Inc.

.ashington, D.C. 20555 P.O. Box 538 ,

Allentown, Pennsylvania 18105 .

d f

Jerome E. Sharfman, Esquire .

U.S. Unclear. Regulatory Commission Paul M. King, Esq. ,

!ashington, D.C. 20555 PPG Industries, Inc.

One Gateway Center Pittsburgh, Pennsylvania 15222 i'iiomas G. Ryan, Esq. Ross Austin, Esq.

Icham, Lincoln & Beale E. I. DuPont de Nemours & Co.

One First National Placa Wilmington, Delaware 19898

uite 4300 - .

':hicago,-Illinois 60603 .

ifohn Stapleton, Esq. R. Gordort Cooch, Eng. '

IIonsanto Company- John P. Mathis, Esq.

800 N. Lindbergh Baker & Botts -

S t. Louis, Missouri 63166 1701 Pennsylvania Ave., N.W.

. Washington, D.C. 20006 1 -

Stanley Baumblatt, Esq. -

Union Carbide Corporation -Roy P. Lessy, Jr., Eng. .

270 Park Avenue "icahel B. Blume, Eng.

Neu York, NY 10017 U.S. Muclear Regulatory Commission Washington, D.C 20555 -

Roff Hardy Don R. Butler, Esq.

Chairman and. Chief Executive Sneed, Vine, Wilkerson, Officer Selman & Perry Central Power & Light Company P.O. Box 1409 P.O. Box 2121 Aus tin , TX 787G7 Corpus Christi, TX 78403 Mr. Perry G. Brittain President Jerry L. Harris, Esq.

Texas Utilities Generating Richard C. Balough, Esq.

Company City of Austin 2001 Bryan Tower P.O. Box 1088 Dallas, T;: 75201 Austin, TX 78767 R.L. Hancock, Director Don H. Davidson City of Austin Electric Utility City Manager P.O. Box 1086 City of Austin Austin, TX 78767 P.O. Box 1088 Austin, TX 78767 G.W. Oprea, Jr. Robert Lowenstein Executive Vice President J.A. Bouknight, Jr.

Houston Lighting & Power Company William J. Frani;lin P.O. Box 1700 Lowenstein, New. nan , Reis &

Houston, TX 77001 Axelrad 1025 Connecticut Ave., N.W.

Washington, DC 20036 John W. Davidson, Esq.

Judith Harris, Esq. Sawtelle, Goode, Davidson &

Ronald Clark, Esq. Tioilo U.S. Department of Justice 1100 San Antonio Savings Bldg.

Antitrust Division San Antonio, TX 78205

.'11 - llth St., N.W. ,

Washington, DC 20530

Douglas F. John, Esq. Joseph Rutberg, Esq.

Akin, Gump, Haver & Feld Antitrust Counsel 1100 Madison Office Bldg. Counsel for NRC Staff 1155 15th Street, N.W. U.S. Nuclear Regulatory Washington, DC 20005 Commission Washington, DC 20555 Morgan Hunter, Esq. Joseph J. Saunders, Esq.

Chief, Public Counsel &

Bill D. St. Clair, Esq.

McGinnis, Lockridge & Legislative Section Kilgore Antitrust Section Fifth Floor, Texas State Bank Bldg. U.S. Department of Justice 900 Congress Avenue P.O. Box 14141 Austin, TX 78701 Washington, D.C. 20044 Kevin B. Pratt Texas Attorney General's Office G.K. Spruce, General Manager State of Texas City Public Service Board P.O. Box 12548 P.O. Box 1771 Austin, TX 78711 San Antonio, TX 78203 william H. Burchett, Esq.

W.S. Robson General Manager Frederick II. Ritts, Esq.

South Texas Electric Cooperating, Northcutt Ely Inc. Watergate 600 Building Route 6, Building 102. Washington, JC 20037 Victoria Regional Airport Victoria, TX 77901 Joseph B. Knotts, Jr. Robert C. McDiarmid, Esq.

Robert Jablon, Esq.

Nicholas S. Reynolds Debevoice & Liberman 2600 Virginia Avenue, N.W.

806 15th Street, N.W. Washington, DC 20037 Suite 700 Washington, DC 20005

Marshall E. Miller, Esq. Mr. Jerome D. Saltzman U.S. Nuclear Regulatory Commission Chief, Antitrust and Washington, D.C. 20555 Indemnity Group U.S. Nuclear Regulatory Commission Nuclear Reactor Regulation Washington, D.C. 20555 Michael L. Glaser, Esq. J. Irion Worsham, Esq.

1150 17th Street, N.W. Merlyn D. Sampels, Esq.

Washington, D.C. 20036 ,

Spencer C. Relyea, Esq.

Worsham, Forsythe & Sampels 2001 Bryan Tower, Suite 2500 Dallas, TX 75201 Jon C. Wood, Esq.

Sheldon J. Wolfe, Esq. W. Roger Wilson, Esq.

U.S. Nuclear Regulatory Commission Matthews, Nowlin, Macfarlane Washington, D.C. 20555 & Barrett 1500 Alamo National Building San Antonio, TX 78205 Atomic Safety and Licensing Charles G. Thrash, Jr., Esq.

Appeal Board Panel E.W. Barnett, Esq.

U.S. Nuclear Regulatory Commission Theodore F. Weiss, Esq.

Washington, D.C. 20555 J. Gregory Copeland, Esq.

Baker & Botts 3000 One Shell Plaza Houston, TX 77002 HAND DELIVERED Chase R. Stephens Samuel J. Chilk, Secretary Docketing and Service Branch Office of the Secretary of the U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

t.

John E. Mathews, Jr., Esq.

Richard D. Cudahy, Esq.

Robert H. Loeffler, Esq.

Mathews, Osborne, Ehrlich, McNatt Joseph Gallo, Esq. Gobelman & Cobb Isham, Lincoln & Beale 1500 American Heritage Life Bldg.

1050 17th Street, N.W. Jacksonville, Florida 32202 Seventh Floor Washington, DC 20036 Wheatley & Miller Robert E. Bathen 1112 Watergate Office Bldg. R.W. Beck & Associates 2600 Virginia Ave. N.W. P.O. Box 6817 Washington, DC 20037 Or]ando, Florida 82853 Linda L. Aaker, Esq.

Assistant Attorney General P.O. Box 12548 Capital Station Austin, TX 78711 Knoland J. Plucknett Eyecutive Director Canmittee on Power for the Southwest, Inc.

5541 E. Skelly Dr.

Tulsa, Oklahoma 74135 Jay M. Galt, Esq.

Looney, Nichols, Johnson & Hayes 219 Couch Drive Oklahoma City, Oklahoma 73101