ML19276E887
| ML19276E887 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak  |
| Issue date: | 02/27/1979 |
| From: | Bouknight J LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | |
| References | |
| NUDOCS 7903210574 | |
| Download: ML19276E887 (9) | |
Text
%d4
- git, b 'N N
ll N
2,
- ggs ' ci LY.h h 44 4<s g
UMITED STATES OF AMERICA NUCLEAR REGULATOR 1 COMMISSION g
To-BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
)
)
HOUSTON LIGHTING & POWER
)
Docket Nos. 50-498A COMPANY, et al.
)
50-499A
)
(South Texas Project, Unit
)
Nos. 1 and 2)
)
)
TEXAS UTILITIES GENERATING
)
Docket Nos. 50-445A COMPANY, et al.
)
50-446A
)
(Comanche Peak Steam Electric )
Station, Unit Nos. 1 and 2)
)
RESPONSE OF HOUSTON LIGHTING & POWER COMPANY TO DEPARTMENT OF JUSTICE MOTION FOR EXTENSION OF TIME Introduction This proceeding was triggered with the receipt, on February 21, 1978, of an advice letter from the Department of Justice (Department).
That advice letter runs for eighteen pages and outlines, with some specificity, economic and engineering theories supporting serious antitrust allegations made by the Department that the activities of Houston Lighting
& Power Company (Houston) have been inconsistent with the antitrust laws. Now, exactly one year later, the Department requests an indefinite delay in the deadline for it to respond to basic interrogatories inquiring into its plans to offer expert and non-expert testimony in this proceeding.
In seeking the extension, the Department admits that it has practically no idea of the testimony which it will present 790321o #
in the proceeding or of who its witnesses will be.
The Department's request poses a basic problem for the Board and the other parties.
Obviously, the Department's witnesses cannot be deposed until they are selected, and effective depositions cannot be taken until particularly the expert witnesses have formed some conclusions about the case and the content of their testimony.
The one certain conclusion that must be drawn from the Department's Motion for Extension of Time is that the theories spun in its advice letter had no basis in factual, ecomonic or engineering analysis.
Obviously, the Department is only now at the threshold of any serious analysis of the case.
Discussion On February 9, 1979, Houston served interrogatories on the Department requesting the Department to:
(1) identify non-expert witnesses whom the Department may call in this proceeding, and identify documents on which such witnesses may rely; (2) identify expert witnesses who the Department expcets to call in the proceeding, provide the information specified in Rule 26 (b) (4) (A) of the Federal Rules of Civil Procedures as to each such expert, and provide certain related documents; and (3) identify and describe the scope of work contemplated for experts who are performing work for the Department in connection with this proceeding, but who are not expected to testify.
On February 22, the day before response to Houston's interrogatories were due, the Depart-ment filed a Motion for Extension of Time (Motion), requesting i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COM'4ISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
HOUSTON LIGHTING & POWER
)
Docket Nos. 50-498A COMPANY, e_t al.
)
50-499A
)
(South Texas Project,
)
Units 1 and 2)
)
Docket Nos. 50-445A TEXAS UTILITIES GENERATING 0-446A et al.
COMPANY, --
)
)
(Comanche Peak Steam Electric )
Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the foregoing:
RESPONSE OF HOUSTON LIGHTING & POWER COMPANY TO DEPARTMENT OF JUSTICE MOTION FOR EXTENSION OF TIME, dated February 27, 1979 were served upon the following persons, by hand *, or by deposit in the United States Mail, first class postage prepaid, this 17 th day of February, 1979.
Il
\\
- d.,/ A. Bouknigh Jr.
Marshall E. Miller, Esquire
- Roy P.
Lessy, Jr., Esquire U.S. Nuclear Regulatory Commission Michael B.
Blume, Esquire Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Michael L. Glaser, Esquire
- 1150 17th Street, N.W.
Roff Hardy Washington, D.C. 20036 Chairman and Chief Executive Officer Sheldon J. Wolfe, Esquire * '
Central Power and Light Company U.S. Nuclear Regulatory Commission P.O. Box 2121 Washington, D.C.
20555 Corpus Christi, Texas 78403 Atomic Safety and Licensing G.K. Spruce, General Manager Appeal Board Parel City Public Service Board U.S. Nuclear Regulatory Commission P.O. Box 1771 Washington, D.C.
20555 San Antonio, Texas 78203 Chase R. Stephens, Supervisor (20)*
bk. Perry G.
Brittain Docketing and Service Branch President U.S. Nuclear Regulatory Commission Texas Utilities General Company Washington, D.C.
20555 2001 Bryan Tower Dallas, Texas 75201 Mr. Jerome D.
Saltzman Chief, Antitrust and Indemnity R.L. Hancock, Director City of Austin Electric Utility Group U.S. Nuclear Regulatory Commission P.O. Box 1086 Washington, D.C.
Irion Worsham, Esquire G.W.
Oprea, Jr.
Merlyn D.
Sampels, Esquire Executive Vice President Spencer C.
Relyea, Esquire Houston Lighting & Power Company Worsham, Forsyth & Sampels P.O. Box 1700 2001 Bryan Tower, Suite 2500 Houston, Texas 77001 Dallas, Texas 75201 Richard D. Cudahy,- Esquire Jon C.
Wood, Esquire Joseph Gallo, Esquire W. Roger Wilson, Esquire Robert H.
Loeffler, Esquire Matthews, Nowlin, Macfarlane Isham, Lincoln & Beale 1050 17th Street, N.W.,
Suite 701
& Barrett 1500 Alamo National Building Washington, D.C.
20036 San Antonio, Texas 78205 Michael I.
Miller, Esquire Charles G. Thrash, Jr., Esquire P' chard E. Powell, Esquire E.W.
Barnett, Esquire L _ /id M.
Stahl, Esquire Theodore F. Weiss, Esquire Thomas G. Ryan, Esquire J. Gregory Copeland, Esquire Isham, Lincoln i Beale One First National Plaza Baker & Botts 3000 One Shell Plaza Chicago, Illinois 60603 Houston, Texas 77002 R.
Gordon Gooch, Esquire Baker & Botts 1701 Pennsylvania Avenue, N.W.
Washington, D.C.
20006
. Don R.
Butler, Esquire Morgen Hunter, Esquire Sneed, Vine, Wilkerson, Selman Bill D.
St. Clair, Esquire
& Perry McGinnis, Lockridge & Kilgore P.O.
Box 1409 Fifth #1oor Austin, Texas 78767 Texas State Bank Building 900 Congress Avenue Jerry L.
Harris, Esquire Austin, Texas 78701 Richard C.
Balough, Esquire City of Austin W.S.
Robson P.O. Box 1088 General Manager Austin, Texas 78767 South Texas Electric Cooperative, Inc.
Joseph B.
Knotts, Jr., Esquire Route 6, Building 102 Nicholas S.
Reynolds, Esquire Victoria Regional Airport Debevoise & Liberman Victoria, Texas 77901 1200 -- 17th Street, N. W.
Robert C. McDiarmid, Esquire Washington, D. C.
20036 Robert A. Jablon, Esquire Marc R.
Poirier McDiarmid Spiegel &
Don H.
Davidson irginia Avenue, N.W.
City Manager Washington, D.C.
20036 City of Austin P.O.
Box 1088 Kevin B.
Pratt Austin, Texas 78767 Texas Attorney General's Office P.O. Box 12548 Jay Galt, Esquire Austin, Texas 78711 Looney, Nichols, Johnson & Hays 219 Couch Drive William H.
Burchette, Esquire Oklahoma City, Oklahoma 73102 Frederick H.
Ritts, Esquire Law Offices of Northcutt Ely Knoland J.
Plucknett Watergate 600 Building Executive Director Washington, D.C.
20037 Committee on Power for the Southwest, Inc.
Tom W.
Gregg, Esquire 5541 East Skelly Drive P.O. Box Drawer 1032 Tulsa, Oklahoma 74135 San Angelo, Texas 76902 John W.
Davidson, Esquire Leland F.
Leatherman, Esquire Sawtelle, Goode, Davidson & Tioilo McMath, Leatherman & Woods, P.A.
1100 San Antonio Savings Building 711 West Third Street San Antonio, Texas 78205 Little Rock, Arkansas 72201 Douglas F. John, Esquire Paul W. Eaton, Jr., Esquire Akin, Gump, Haver & Feld Hinkle, Cox, Eaton, Coffield &
1100 Madison Office Building Hensley 1155 15th Street, N.W.
600 Henkle Building Washington, D.C.
20005 P.O.
Box 10 Roswell, New Mexico 88201 Ronald Clark, Esquire
- Frederick H. Parmenter, Esquire
- Judith Linda Harris, Esquire
- Energy Section Antitrust Division U.S. Department of Justice P.O. Box 14141 Washington, D.C.
20044
. conference scheduled for March 20.
The candor of the Department's Motion may well lead to a discussion of scheduling which is more productive than that which occurred at the December prehearing conference.
The statements in the Motion drain the Department's advice letter of whatever remaining vitality it had.
Perhaps the Department will now abandon its effort to mold the facts of the case to its preconceptions and suggest, on March 20, a realistic timetable for preparation of its case based upon the facts which it has garnered from the discovery process.
WHEREFORE, Houston requests tha t the Board hold in abeyance its ruling on the Department's Mocion until the March 20 prehaaring conference, and that it then consider the Department's Motion in the context of fixing a schedule which affords Houston a fair opportunity for discovery of the Department's case.
Respectfully submitted,
/7
/
By
/
.C y,J.
A. Bouknight, JC Of Counsel:
[/
f Baker & Botts E.
W.
Barnett 1701 Pennsylvania Avenue Baker & Botts N.W.
3000 One Shell Plaza Washington, D.C.
20006 Houston, Texas 77002 J.
A.
Bouknight, Jr.
Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.
Wushington, D.C.
20036 Attorneys for Houston Lighting & eower Company Dated:
February 27, 1979 its charges.
Mindful that the Department has disclosed nothing meaningful about its case beyond what appears in the advice letter, Houston intends to make extensive use of depositions in preparing to meet the Department's case.
However, now Houston is informed that the Department's experts will not for some time be in any position to respond meaningfully to deposition questions.
Houston has difficulty in recommending any specific action by the Board in response to the Department's Motion.
The problem, from Houston's standpoint, is that the discovery period is about to end without Houston's having a meaningful opportunity to discover the nature of the Department's case.4,/
The Board cannot by fiat direct that engineers and economists who apparently have not even been selected be prepared for depositions within thirty days.
Nor is it practical to suggest that the Department's participation in the proceeding be limited, as might well be appropriate were the Department a private party.
Outright denial of the Motion will not yield Houston useful responses to its interrogatories or a meaningful opportunity for depositions.
It appears that the best course would be to hold the De'1rtment's Motion in abeyance pending discussion of the progress of the proceeding as a whole at the prehearing 4/
By contrast, the Department has received thousands of documents made available to it by Houston in August 1978 and has had the benefit of the depositions and transcript at the trial in West Texas Utilities Company, et al. v. Texas Electric Service Company, et al.,
F.Supp No. CA3-76-0633-F (N.D. Tex., January 20, 1979).
and through and including pleadings filed as recently as February 6, 1978.2/
Concerned with the forceful and (Houston believes) largely erroneous statements made in i a Department's advice letter, Houston set forth early in the discovery period to probe the basis for these allegations.
On August 2,
- 1978, Houston propounded a set of interrogatories to the Department, many of which were designed to inquire into the specific basis for statements made in the advice letter.
The Depart-ment's response, served on October 10, 1978, disclosed virtually no basis for the advice letter.
In twelve instances, most of them involving questions directed at statements in the advice letter, the Department responded by saying that it could not respond until its discovery progressed farther, which suggests strongly that the letter was written in the expectation that a basis could be constructed later.3/
The next step in Houston's efforts to probe the basis for the allegations contained in the advice letter is to take the depositions of the Department's proposed witnesses and others on whom the Department has relied in formulating 2/
See particularly the Department's Response (dated February 6) to Houston's Objections and Motion for a Protective Order, pp.
2-3.
3,/
In the four months which have elapsed since the Department's response was served, the response has not been supplemented in any substantive respect.
. that the Board exter.l indefinitely the time for responding to Houston's request.
The grounds stated in the Motion are that (1) "all parties to this proceeding are still c.igaged in the first phase of discovery" and (2) the Department at this time "cannot determine the number and identity of the witnesses it will call, much less what those witnesses wit? saf or upon which documents they will rely".
(Motion, p. 3)
This description of the status of the Department's preparation contradicts the posture that the Department has assumed before the Board throughout the proceeding, from the advice letter through the December prehearing conference,l/
1/
See the colloquy at pages 24-26 of the transcript of the December 5, 1978, prehearing conference which includes the following:
" CHAIRMAN MILLER:
You believe now that March 9 -- this is December, that is 90 days, approximately -- do you really think that the Department will be able to initiate and conclude the discovery it desires, as well as participate in that which may be requested by others?
"I don't want optimism.
Neither do I want pessimism.
But I wonder if you aren't crediting yourself Do you really think you can have it?
"MR.
CLARK [ Attorney for the Department] :
We have evaluated the status of the stage at which we have reached, and we've reached the state after very serious consideration.
Now, obviously, there are unforseen problems that could develop.
But based upon our present information and knowledge we believe this is a realistic schedule for the department.
" CHAIRMAN MILLER:
We are not going to hear a different tune now in February, are we, from the Department?
"MR.
CLARK:
[W)e're well aware of the board's determination expressed many times to move ahead expeditiously and we carefully tried to assess what we had completed and what we thought we still needed to do.
And March 9th was a result of that process."