ML19289F101
| ML19289F101 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak  |
| Issue date: | 05/11/1979 |
| From: | Harris J JUSTICE, DEPT. OF |
| To: | |
| References | |
| NUDOCS 7906020037 | |
| Download: ML19289F101 (15) | |
Text
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UNITED STATES OF AMERICA e
9 NUCLEAR REGULATORY COMMISSION
><G S
BEFORE THE ATOMIC SAFETY AND LICENSING BOARE if /
)
G Qf In the Matter of
)
)
HOUSTON LIGHTING AND POWER
)
Docket Nos.
50-498A CO.,
et al (South Texas
)
10-499A Project, Units 1 and 2)
)
)
TEXAS UTILITIES GENERATING
)
Docket Nos. 50-445A COMPANY (Comanche Peak Steam
)
50-446A Electric Station, Units 1
)
and 2)
)
)
ANSWER OF THE DEPARTMENT OF JUSTICE TO MOTIONS OF GULF STATES UTILITIES COMPANY FOR A PROTECTIVE ORDER AND AN ORDER SETTING CONDITIONS FOR COMPLIANCE WITH SUBPOENA I.
Introduction By application dated February 22, 1979, the Public Utilities Board of the City of Brownsville ("Brownsville")
sought the issuance of a subpoena for production of docu-ments to the Keeper of the Records for Gulf States Utilities Company ("GSU").
On February 26, 1979, the Board issued the subpoena.
That subpoena commanded that the requested docu-ments (itemized in a schedule attached to the subpcena 1/)
be made available for inspection and copying on March 12, 1979.
1/ By letter dated March 5, 1979, Brownsville apparently submitted to GSU a shortened list of those documents which Brownsville considered to be the most essential contained in the original schedule attached to its subpoena.
It is the Department's understanding that this " revised schedule" was to be the basis of negotiations among counsel and was provided in the interest of expedition but was (footnote con't on next page) 2236 263 7906020037
Shortly after issuance of the subpoena, attorneys for the Department of Justice (" Department") contacted attorneys j
for GSU and sought their permission to inspect those docu-ments which were to be made available pursuant to the subpoena.
GSU's attorneys assured the Department that
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they could inspect the requested documents when (or after) those doc _ments were shotn to Brownsville. 2/
Based on this representation, the capartment refrained from applying for I
its own subpoena of GSU.
s Now, however, because approximately two and a half months have elapsed since the issuance of Brownsville's GSU subpoena and because it has become increasingly clear from subsequent developments discussed hereinafter that GSU is attempting to delay and complicate its inevitable production of the subpoenaed documents, the Department feels compelled to express its concern to the Board.
II. GSU Must No Longer Be Permitted to Continue Its Dilatory Tactics With Respect To The Brownsville Subpoena On March 9, 1979, three days before the date originally designated for Brownsville's document inspection, GSU filed (footnote con't) not meant to affect Brownsville's right to seek compliance with its entire original subpoena.
See discussion infra.
2/ At the Department's request, Brownsville consented to the Department's inspecting the documents to be produced by GSU. 2236 264 O w
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a MOTION TO EXTEND THE TIME WITHIN WHICH TO RESPOND TO THE BOARD'S SUBPOENA ISSUED ON BEHALF OF THE PUBLIC UTILITIES
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BOARD OF THE CITY OF BROWNSVILLE, TEXAS.
Citing the fact that the subpoena had not been served until March 6, 1979 and that the subpoena requested a wide range of documents, requested an additional thirty days (until April 11, GSU 1979) within which to respond.
That motion was granted, without opposition, on March 13, 1979.
s On April 9, 1979, two days before the extended deadline, GSU filed a MOTION FOR FURTHER EXTENSION OF TIME.
In that motion, counsel for GSU stated that they had reviewed approximately 80% of the documents identified by GSU as possibly responsive to the request but that additional time (until April 25, 1979) would be necessary to complete the review process.
Throughout the foregoing time period, Brownsville (as well as counsel for other parties to the proceeding including the Department) indulged GSU's requests without objection. By order dated April 13, 1979, the Board granted this second request for an extension of time, thus extending the return date to April 25, 1979. 2236 265 O %
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b On April 25, 1979, however, rather than responding to the subpoena, counsel for GSU filed a MOTION FOR A PROTECTIVE ORDER AND AN ORDER SETTING CONDITIONS FOR COMPLIANCE WITH SUBPOENA ( " April 25, 1979 Motion").
In that motion, GSU asked that a protective order be entered "to safeguard the confidentiality of certain business information" and "to protect against disclosure altogether a small number of documents pertaining to attorney / client communications and Gulf States' ongoing negotiations with another electric s
utility cooperative".
Additionally, GSU requested that any production be conditioned upon reimbursement to GSU for its costs and expenses.
April 25, 1979 Motion at 2-3.
Although the Depr _ ment is not directly involved in the Brownsville subpoena, the Department is constrained to make its views known to the Board in order to protect its own very real interest in the matter and to do what it can to halt the excessive delay regarding the production of GSU's documents.
2236 266 ;
S e
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First, insofar as GSU now seeks reimbursement for costs, it appears to the Department that filing a motion at this late date on an issue that could have been brought to the attention of Brownsville and the Board long before GSU's actual review of documents had been completed 3/, is a patent abuse of the patience which has been displayed by all interested parties with respect to this matter.
It now appears that GSU intends to await a ruling from the Board and then, if its motion is granted, to begin to prepare (for the Board's approval) a complete tabulation of the man-hours and costs incident to production. After 3/ GSU cannot be heard to argue that it could not file Its motion for costs until its document review was completed since, by its own admission, it is only asking that the principle be ruled upon at this time:
While it has not been possible to prepare a complete tabulation of the man-hours and costs incident to production, Gulf States will provide the Licensing Board and Brownsville with appropri-ate affidavits and schedules establishing its in-curred costs once the principle of reimbursement has been established. (April 25, 1979 Motion, footnote 4, at 5).
That principle could have been put before the Board at any time after the subpoena first issued two and a half months ago. 2236 267 O
all that is completed, GSU:
stands ready to tender [the requested]
documents at its offices upon reimburse-ment of its expenses. 4/
(April 25, 1979 Motion, footnote 4 at 5, emphasis and footnote added).
The Department urges the Board not to acquiesce in this tansparent attempt by GSU to obtain additional delay and, regardless of the position ultimately adopted by the Board on the issue of costs, to issue an order requiring GSU to s
comply with the subpoena forthwith.
In its April 25, 1979 Motion, in addition to requesting reimbursement for costs, GSU also seeks a protective order prohibiting the disclosure of documents relating to ongoing negotiations between GSU and Sam Rayburn Dam Electric Cooperative, but states that:
4/ Later in its April 25, 1979 Motion, GSU seems to back off this position somewhat when it states:
Gulf States wishes to comply with the subpoena demand and merely seeks recoup-ment after full production of expenses determined by the Licensing Board to be reasonable.
However, prior to the com-mencement of production, the principle of recoupment should be established.
(April 25, 1979 Motion, footnote 7 at 8,
emphasis added).
See also, April 25, 1979 Motion at 9. 2236 268
t t
Upon request, Gulf States will submit these documents for an in camera inspection by the Licensing Board.
'f (April 25, 1979 Motion, footnote 12, at 10).
Shortly thereafter GSU adds:
[I)n order to accommodate the needs of the parties to this proceeding for re-levant information, Gulf States is will-ing to provide a summary of these docu-ments.
(April 25, 1979 Motion at 11).
The Department respectfully requests that the Board order s
GSU to provide such a summary immediately, leaving open the possibility of an in camera inspection should such an inspection prove to be necessary after a review of the summary.
Additionally, in its April 25, 1979 Motion, GSU requests a protective order with respect to communications to and from GSU and its counsel.
Once again, GSU offers to make available, upon request, a list of the documents with respect to which GSU is asserting the attorney / client privilege.
Id. at 11, n.
13.
The Department requests that
/
the Board order the production of such a list, again leaving open the possibility of a later in camera inspection should that prove necessary. 2236 269 9
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The Department is also concerned with an additional aspect of the April 25, 1979 Motion.
In a proposed Protective Order attached to that motion, GSU includes a paragraph
- 5 (numbered paragraph 1 at 1-2) to the effect that production of the documents requested in the modified schedule attached to a March 5, 1979 letter from Brownsville's counsel, see footnote 1 at 1-2 supra, should be deemed full and complete compliance with Brownsville's subpoena.
It is the Depart-ment's understanding, based on a reading of that letter and s
based on subsequent conversations with Brownsville's counsel, that the March 5, 1979 letter was neither intended to nor could reasonably be interpreted to mean that GSU's compliance with that letter excused GSU from compliance with the subpoena.
As noted above, the March 5, 1979 letter simply constituted an attempt by Brownsville to facilitate and expedite GSU's compliance with the subpoena, but this letter did not supercede the subpoena.
Therefore, any questions regarding the enforceability of Drownsville's entire subpoena should be left open until after Brownsville (and others) have had ample opportunity to review the documents produced in response to the " modified" schedule.
2236 270.
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One important point remains.
On April 30, 1979, five days after filing its April 25, 1979 Mot'.on, GSU filed a SUPPLEMENTAL MOTION FOR A PROTECTIVE ORDER AND AN ORDEA SETTING CONDITIONS FOR COMPLIANCE WITH SUBPOENA
(" April 30, 1979 Motion").
In that motion, GSU alleges that certain documents with respect to which it had asserted a claim of s
privilege based upon proprietary and confidential business information, were already covered by the Board's Order of April 16, 1979 which protected from disclosure " documents generated by HL&P and other parties solely as part of negotiations to settle this proceeding", GSU's April 30, 1979 Motion at 1-2, quoting from Board's April 16, 1979 Order.
The position taken by GSU in its April 30, 1979 Motion is totally at odds with the grounds relied upon by GSU in its March 9, 1979 motion meeting its initial extension of time.
In that motion, GSU stated:
[Il t should be noted that Gulf States, not a party to this antitrust proceeding, will require some time simply to familiarize it-self with the antitrust review underway in order to determine the relevancy of each document request.
(March 9, 1979 Motion at 2, emphasis added). 2236 271
4 Moreover, throughout the papers it has filed with this Board in connection with the subpoena, GSU has attempted to portray itself as "a disinterested third party", see e.g.,
GSU's April 25, 1979 Motion at 2, arguing that Brownsville and not GSU should bear the costs and expenses incident to production of the demanded documents, April 25, 1979 Motion at 2.
Now, however, in a total reversal of position, GSU s
seems to be implying that it is covered by a limited order pertaining to HL&P "and other parties" (in which category it now includes itself, see April 30, 1979 Motion at 2) and, further, implies that, far from being a disinterested party, it has somehow been involved in negotiations (of which the Department is wholly unaware) to settle these proceedings.
It is the Department's position that, insofar as GSU is not a party to these proceedings, it does not fall within the Board's April 16, 1979 Order, and that any so-called
" settlement" documents must be produced pucsuant to the Brownsville subpoena.
At the very least, GSU should be compelled to supply immediately a detailed list (with accompanying explanation) of the documents (including author, addressee, subject and date) which it claims are protected by the Board's April 16, 1979 Order.
2236 272.
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III. Conclusion
[.
To obviate any further delay regarding this entire f
matter, the Department respectfully requests that the Board:
(1) Order GSU to respond immediately to the Brownsville subpoena, regardless of the Board's ultimate ruling on the cost issue raised in GSU's April 25, 1979 Motion; (2) Order GSU to produce forthwith a summary of all s
purportedly privileged documents relating to ongoing negotia-tions between GSU and Sam Rayburn Dam Electric Cooperative; (3) Order GSU to supply immediately a complete list of any documents it intends to withhold on the basis of the attorney / client privilege; (4) Delete from the proposed Protective Order accompany-ing GSU's April 25, 1979 Motion numbered paragaph 1 at 1-2; this paragraph states that production of documents in the schedule attached to the March 5, 1979 letter is to be deemed full and complete compliance with Brownsville's subpoena; and
% 2236 273 4.
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(5) Deny GSU's April 30, 1979 Motion for a protective order with respect to any so-called " settlement" documents.
Respectfully submitted,
'h & l.
Ju6ith L.
Harris Susan B.
Cyphert Ronald H.
Clark Frederick H.
Parmenter s
Attorneys, Energy Section Antitrust Division U.S. Department of Justice Washington, D.C.
20530 Dated: May 11, 1979 2236 274.
/
9 L
9 e
e
t UNITED STATES OF AMERICA
[,
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
~
)
In the Matter of
)
)
HOUSTON LIGHTING AND POWER
)
Docket Nos. 50-498A CO.,
et al.(South Texas
)
50-499A Project, Units 1 and 2)
)
)
TEXAS UTILITIES GENERATING
)
Docket Nos. 50-445A sOMPANY (Comanche Peak Steam )
50-446A Electric Station, Units 1
)
and 2)
)
)
s CERTIFICATE OF SERVICE I hereby certify that service of the foregoing ANSWER OF THE DEPARTMENT OF JUSTICE TO MOTIONS OF GULF STATES UTILITIES COMPANY FOR A PROTECTIVE ORDER AND AN ORDER SETTING CONDITIONS FOR COMPLIANCE WITH SUBPOENA have been made on the following parties listed hereto this 14th day of May, 1979, by depositing copies thereof in the United States mail, first class, postage prepaid, or where an
- appears, by hand delivery on this lith day of May, 1979.
Marshall E.
Miller, Esquire
- Atomic Safety and Licensing Chairman Appeal Board Panel Atomic Safety & Licensing Board U.S.
Nuclear Regulatory Panel Commission U.S. Nuclear Regulatory Washington, D.
C.
20555 Commission Washington, D.
C.
20555 Richard S.
Salzman, Esquire U.S. Nuclear Regulatory Michael L. Glaser, Esquire
- Commission 1150 17th Street, N.W.
Washington, D.
C.
20555 Washington, D.
C.
20036 Jerome E.
Sharfman, Esquire Sheldon J. Wolfe, Esquire
- U.S. Nuclear Regulatory Atomic Safety & Licensing Board Commission Panel Washington, D.
C.
20555 U.S. Nuclear Regulatory Commission Chase R.
Stephens, Secretary
- Washington, D.
C.
20555 Docketing and Service Branch U.S. Nuclear Regulatory Samuel J. Chilk, Secretary Commission Office of the Secretary of the Washington, D.
C.
20555 Commission 2236 275 U.S. Nuclear Regulatory Jerome Saltzman Commission Chief, Antitrust and Washington, D.
C.
20555 Indemnity Group U.S. Nuclear Regulatory Commission Washington, D.
C.
20555
Mark J. Wetterhahn, Esq.*
Joseph Gallo, Esquire c
Robert M.
Rader, Esq Richard D. Cudahy, Esquire Conner, Moore & Corber Robert H.
Loeffler, Esquire 1747 Pennsylvania Ave, N.W.
Isham, Lincoln & Beale Washington, D.C.
Suite 701 1050 17th Street, N.W.
Roff Hardy Washington, D.
C.
20036 Chairman and Chief Executive Officer Michael I. Miller, Esquire Central Power and Light Richard E.
Powell, Esquire Company David M.
Stahl, Esquire P.
O. Box 2121 Thomas G.
Ryan, Esquire Corpus Christi, Texas 78403 Isham, Lincoln & Beale One First National Plaza G.
K.
Spruce, General Manager Chicago, Illinois 60603 City Public Service Board P.O.
Box 1771 Roy P.
Lessy, Esquire San Antonio, Texas 78203 Michael Blume, Esquire U.S.
Nuclear Regulatory Perry G.
Brittain Commission President Washington, D.
C.
20555 Texas Utilities Generating Company Jerry L.
Harris, Esquire 2001 Bryan Tower City Attorney, Dallas, Texas 75201 Richard C. Balough, Esquire Assistant City Attorney R.L.
Hancock, Director City of Austin City of Austin Electric P.O.
Box 1088 Utility Department Austin, Texas 78767 P.
O.
Box 1088 Austin, Texas 78767 Robert C. McDiarmid, Esquire Robert A. Jablon, Esquire G.
W.
Oprea, Jr.
Spiegel and McDiarmid Executive Vice President 2600 Virginia Avenue, N.W.
Houston Lighting & Power Washington, D.
C.
20036 Company P. O.
Box 1700 Dan H. Davidson Houston, Texas 77001 City Manager City of Austin Jon C. Wood, Esquire P. O.
Box 1088 W.
Hoger Wilson, Esquire Austin, Texas 78767 Matthews, Nowlin, Macfarlane
& Barrett Don R.
Butler, Esquire 1500 Alamo National Building 1225 Southwest Tower San Antonio, Texas 78205 Austin, Texas 78701 Joseph Irion Worsham, Esquire Merlyn D.
Sampels, Esquire Spencer C. Relyea, Esquire Worsham, Forsythe & Sampels 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 2236 276
P P
Joseph Knotts, Esquire W.
S.
Robson Nicholas S.
Reynolds, Esquire General Manager J
Debevoise & Liberman South Texas Electric 1200 17 Street, N.W.
Cooperative, Inc.
Washington, D.
C.
20036 Route 6, Building 102 Victoria Regional Airport Douglas F. John, Esquire Victoria, Texas 77901 Akin, Gump, Hauer & Feld 1333 New Hampshire Avenue, N.W.
R. Gordon Gooch, Esquire Suite 400 John P. Mathis, Esquire Washington, D.
C.
20036 Baker & Botts 1701 Pennsylvania Avenue, N.W.
Morgan Hunter, Esquire Washington, D. C.
20006 McGinnis, Lochridge & Kilgore 5th Floor, Texas State Bank Robert Lowenstein, Esquire Building J. A.
Bouknight, Esquire 900 Congress Avenue William J.
Franklin, Esquire Austin, Texas 78701 Lowenstein, Newman, Reis, Axelrad & Toll Jay M. Galt, Esquire 1025 Connecticut Avenue, N.W.
Looney, Nichols, Johnson Washington, D.
C.
20036
& Hayes 219 Couch Drive E.
W.
Barnett, Esquire Oklahoma City, Oklahoma 73101 Charles G. Thrash, Jr., Esquire J. Gregory Copeland, Esquire Knoland J.
Plucknett Theodore F.
Weiss, Jr.,
Esquire Executive Director Baker & Botts Committse on Power for the 3000 One Shell Plaza Southwest, Inc.
Houston, Texas 77002 5541 East Skelly Drive Tulsa, Oklahoma 74135 Kevin B.
Pratt, Esquire Assistant Attorney General John W.
Davidson, Esquire P.O.
Box 12548 Sawtelle, Goode, Davidson Capital Station
& Tioilo Austin, Texas 78711 1100 San Antonio Savings Building Frederick H.
Ritts, Esquire San Antonio, Texas 78205 Law Offices of Northcutt Ely Watergate 600 Building Washington, D.C.
20037 i hd
{
bkk Judith L'. ' Hdr r is, A ttordey
$6ergy Section Antitrust Division Department of Justice 2236 277 O