ML19296C524

Answer in Opposition to Public Utils Board of City of Brownsville,Tx Motion to Compel RW Hardy Deposition.Urges Denial of Brownsville Request for Shortened Time & for Leave to Reply.No Justification Provided.W/Certificate of Svc

ML19296C524
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	02/08/1980
From:	Hardy R, Stahl D AFFILIATION NOT ASSIGNED, CENTRAL POWER & LIGHT CO., ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002260445
Download: ML19296C524 (7)

Text

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4 lm UNITED STATES OF AMERICA U T NUCLEAR ".EGULATORY COMMISSION ~ I e s e BEFORE THE ATOMIC SAFETY AND LICENSING BOA k g In the Matter of: S 4 y S

HOUSTON LIGHTING & POWER S NRC DOCKET NOS. 50-498A COMPANY, THE CITY OF SAN S 50-499A ANTONIO, THE CITY OF AUSTIN,S and CENTRAL POWER AND LIGHT S COMPANY S (South Texas Project, S Unit Nos. 1 and 2) S S

TEXAS UTILITIES GENERATING S NRC DOCKET NOS. 50-445A COMPANY, ~et al. S 50-446A (Comanche PeaE Steam S Electric Station, S Unit Nos. 1 and 2) S ANSW"n OF CENTRAL POWER AND LIGHT COMPANY AND ROFF W. HARDY TO THE MOTION TO COMPEL DEPOSITION, FOR SHORTENED TIME FOR RESPONSE, AND FOR LEAVE TO REPLY OF THE PUBLIC UTILITIES BOARD OF THE CITY OF BROWNSVILLE, TEXAS Central Power and Light Company (" CPL") and Roff W. Hardy hereby file their Answer to the Motion to Compel Deposition, for Shortened Time for Response, and for Leave to Reply (the " Motion to Compel") filed by the Public Utilities Board of the City of Brownsville, Texas (" PUB").

It should be noted at the outset that, at the time the PUB filed its Notice of Filing of Deposition (Attachment "A" to the Motion to Compel), Mr. Hardy was not employed by CPL; consequently, in the absence of a subpoena directed to Mr. Hardy, under Section 2.720 of the, Rules, CPL had no obligation under the Commission's Rules ot i

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t Practice to produce Mr. Hardy for a deposition.and Mr. Hardy was under no obligation to appear. Since no subpoena has ever been issued requiring Mr. Hardy to appear, he is still under no legal obligation to do so. For this reason alone the PUB Motion to Compel must be denied.

For other reasons as well, and under the circum-stances presented here, the PUB should not be permitted to compel Mr. Hardy to appear at a deposition to give oral answers to oral questions. Counsel for CPL long ago advised counsel for the PUB that Mr. Hardy's physical condition would not allow him to endure the stress and strain of an oral deposition. Upon request, counsel for CPL produced to counsel for the PUB written verification of that fact from Mr. Hardy's physician. The PUB Motion to Compel attempts to mislead this Board by characterizing the letter as "hardly sufficient to establish that there are no circumstances or arrangements under which Mr. Hardy could give a deposition."

(Motion to Compel, p. 2) In fact, the letter (Attachment "C" to the Motion to Compel) unequivocally states the medical opinion that Mr. Hardy is "quite ill" and that it "is not advisable that he participate fc' the time being in the depositions . . . CPL and Mr. Hardy respectfully suggest that this opinion as to Mr. Hardy's physical condi-Nor, contrary to the assertion in the Motion to Compel (p.2), did counsel for the PUB offer "to structure the deposition so as to accommodate Mr. Hardy" and Attachment B to the Motion to Compel reflects no such offer.

PUB has presented no evidence to the contrary except apparently to attempt to cast some doubt on the authenticity of the letter by referring to it as "unnotarized".

tion and the inadvisability of subjecting him to a deposi-tion is sufficient basis upon which to deny the PUB's Motion to Compel.

The PUB fails to provide any justification for requiring Mr. Hardy to appear. The PUB has already deposed various executive and engineering personnel of CPL, includ-ing the present Chairman, Chief Executive Officer and President. The Notice of Deposition to Mr. Hardy indicates that PUB intends to question him in the same areas as it did those individuals. Though this Board has ruled that duplica-tion of discovery is not sufficient grounds by itself to avoid a deposition, surely the fact that the party seeking the discovery of an individual who cannot attend for medical reasons has already had extensive and identical discovery from other individuals reinforces the conclusion that the PUB ought not be permitted to compel the appearance of Mr. Hardy.

WHEREFORE, CPL and Roff W. Hardy respectfully request that the PUB Motion to Compel be denied ir all respects.

Res egtfully submitted, t

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• David M'. Stahl One of the Attorneys for Central Power and Light Company and Roff W. Hardy February 8, 1980 ISHAM, LINCOLN & BEALE Suite 701 1050 Seventeenth St., N.W.

Washington, D.C. 20036 202/833-9730 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: S S

HOUSTON LIGHTING & POWER S NRC DOCKET NOS. 50-498A COMPANY, THE CITY OF SAN S 50-499A ANTONIO, THE CITY OF AUSTIN,S and CENTRAL POWER AND LIGHT S COMPANY S (South Texas Project, S Unit Nos. 1 and 2) S S

TEXAS UTILITIES GENERATING S NRC DOCKET NOS. 50-445A COMPANY, et al. S 50-446A (Comanche Peak Steam S Electric Station, S Unit Nos. 1 and 2) S CERTIFICATE OF SERVICE I, David M. Stahl, hereby certify that copies of the foregoing Answer of Central Power and Light Company and Roff W. Hardy to the Motion to compel Deposition, for Shortened Time for Response, and for Leave to Reply of the Public Utilities Board of the City of Brownsville, Texas were served upon the following listed persons by deposit in the United States mail, first class postage prepaid on this 8th day of February, 1980.

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David M. Stahl

MAILING LIST Marshall E. Miller, Esq. Roy P. Lessy, Jr., Esq.

U.S. Nuclear Regulatory Commission Michael B. Blume, Esq.

Washington, D.C. 20555 U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555 Michael L. Glaser, Esq.

1150 17th Street, N. W. William C. Price -

Washington, D. C. 20036 Chairman and Chief Executive Officer Sheldon J. Wolfe, Esq. Central Power & Light Co.

U.S. Nuclear Regulatory Commission P. O. Box 2121 Washington, D.C. 20555 Corpus Christi, Texas 78403

. Atomic Safety and Licensing G. K. Spruce, Gen. Manager Appeal Board Panel City Public Service Board U.S. Nuclear Begulatory Commission P. O. Box 1771 Washington, D. C. 20555 San Antonio, Texas 78203 Chase R. Stephens (20) Mr. Perry G. Brittain Docketing and Service Section President U.S. Nuclear Regulatory Commission Texas Utilities Generating Co.

Washington, D. C. 20555 2001 Bryan Tower Dallas, Texas 75201 Jerome D. Saltzman Chief, Antitrust and Indemnity Group R. L. Hancock, Director U.S. Nuclear Regulatory Commission City of Austin Electric Utility Washington, D.C. 20555 P. O. Box 1088 Austin, Texas 78767 J. Irion Worsham, Esq.

Merlyn D. Sampels, Esq. G. W. Oprea, Jr.

Spencer C. Relyca, Esq. Executive Vice President Worsham, Forsythe & Sampels Houston Lighting & Power Co.

2001 Bryan Tower, Suite 2500 P. O. Box 1700 Dallas, Texas 75201 Houston, Texas 77001 Jon C. Wood, Esq. Michael I. Miller, Esq.

W. Roger Wilson, Esq. James A. Carney, Esq.

Matthews,.Nowlin, Macfarlane & Barrett Isham, Lincoln & Beale 1500 Alamo National Building One First National Plaza San Antonio, Texas 78205 Chicago, Illinois 60603 Morgan Hunter, Esq.

J. A. Bouknight, Esq. Bill D. St. Clair, Esq.

Bill Franklin, Esq. McGinnin, Lockridge & Kilgore Lowenstein, Newman, Reis, Axelrad Fifth Floor, Texas State

& Toll Bank Building 1025 Connecticut Avenue, N. W. 900 Congress Avenue Washington, D. C. 20036 Austin, Texas 78701 R. Gordon Gooch, Esq. Don R. Butler, Esq.

Baker & Botts 1225 Southwest Tower 1701 Pennsylvania Avenue, N. W. Austin, Texas 78701 Washington, D. C. 20006

s ,n r Jerry L. Harris, Esq. W. S. Robson Richard C. Balough, Esq. General Manager City of Austin South Texas Electric P. O. Box 1088 Cooperative, Inc.

Austin, Texas 78767 Route 6, Building 102 Victoria Regional Airport Joseph B. Knotts, Jr., Esq. Victoria, Texas 77901 Nicholas S. Reynolds, Esq.

Debevoise & Liberman Robert C. McDiarmid, Esq.

1200 17th Street, N. W. Robert A. Jablon, Esq.

Washington, D. C. 20036 Marc R. Poirier Speigel & McDiarmid Don H. Davidson 2600 Virginia 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, Esq. Austin, Texas 78711 Looney, Nichols, Johnson & Hays 219 Couch Drive William H. Burchette, Esq.

Oklahoma City, Oklahoma 73102 Frederic H. Ritts, Esq.

Law Offices of Northcutt Ely Knoland J. Plucknett Watergate Building Executive Director Washington, D. C. 20037 Committee on Power for the Southwest, Inc. Wheatley & Wolleson 5541 East Skelly Drive 1112 Watergate Office Bldg.

Tu_sa, Oklahoma 74135 2600 Virginia Avenue, N.W.

Washington, D. C. 20037 John W. Davidson, Esq.

Sawtelle, Goods, Davidson & Tiolo Joseph Rutberg, Esq.

1100 San Antonio Savings Building Antitrust Counsel San Antonio, Texas 78205 Counsel for NRC Staff U.S. NRC Washington, D. C. 20555 Douglas F. John, Esq. Linda L. Aaker, Esq.

Akin,- Gump, Hauer & Feld Asst. Attorney General 1333 New Hampshire Avenue, N. W. P. O. Box 12548 Suite 400 Capitol Station Washington, D. C. 20036 Austin, Texas 78711 W. N. Woolsey, Esq. Robert M. Rader Dyer and Redford Conner, Moore & Corber 1030 Petroleum Tcwer 1747 Pennsylvania Ave., N.W.

Corpus Christi, Texas 78474 Washington, D.C. 20006 Donald Clements Melvin G. Berger, Esq.

Gulf States Utilities Company Ronald Clark, Esq.

P. O. Box 2951 Antitrust Division, Energy Beaumont, Texas 77704 Section Room 8308 414 llth Street, N.W.

Washington, D.C. 20530

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Charles G. Thrash, Jr., Esq. Joseph J. Saunders, Esq.

E. W. Barnett, Esq. Chief, Public Counsel &

Theodore F. Weiss, Esq. Legislative Section J. Gregory Copeland, Esq. Antitrust Section Baker & Botts U.S. Department of Justice 3000 One Shell Plaza P. O. Box 14141 Houston, TX 77002 Washington, D.C. 20044 Donald A. Kaplan, Chie_ Robert E. Bathen Robert Fabrikant, Asst. Chief R. W. Beck & Associates Energy Section P. O. Box 6817 Antitrust Division Orlando, Florida 82853 U.S. Department of Justice Washington, D.C. 20530 Mr. G. Holman King West Texas Utilities Company Nancy Luque P. O. Box 841 Susan B. Cyphert Abilene, TX 79604 Ronald H. Clark Frederick H. Parmenter John Carney, Esq.

Antitrust Division Weil, Gotshal & Manges Energy Section 767 Fifth Avenue U. S. Department of Justice New York, NY 10022 Room 8413 414 llth Street, N.W.

Washington, D.C. 20530