ML19305C540
| ML19305C540 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak, South Texas  |
| Issue date: | 03/26/1980 |
| From: | Chanania F, Cyphert S JUSTICE, DEPT. OF, NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19305C541 | List: |
| References | |
| NUDOCS 8003310032 | |
| Download: ML19305C540 (7) | |
Text
a UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
HOUSTON LIGHTING & POWER COMPANY NRC Docket Nos. 50-498A PUBLIC SERVICE BOARD OF SAN ANTONIO 50-499A i
CITY OF AUSTIN CENTRAL POWER AND LIGHT COMPANY (South Texas Project, Unit
)
No. 1 and 2)
)
TEXAS UTILITIES GENERATING
)
NRC Docket Nos. 50-445A COMPANY, et al.
50-446A (Comanche Peak Steam Electric Station, Units 1 and 2)
NRC STAFF AND DEPARTMENT OF JUSTICE JOINT RESPONSE TO MOTION OF HOUSTON LIGHTING & POWER COMPANY TO QUASH SUBP0ENA 0F MR. GLENN W. STAGG On March 14, 1980, the Licensing Board issued a subpoena for the deposition l
and production of documents by Mr. Glenn W. Stagg upon joint application by the Department of Justice (hereinafter "D0J") and the NRC Staff.
Service of the subpoena was made on March 17,1980,1/ and Houston Lighting & Power Company (hereinafter "HL&P") moved to quash Mr. Stagg's subpoena on March 21, 1980.2_/ The NRC Staff and D0J hereby file their joint response in opposition to HL&P's Motion to Quash the Stagg subpoena.
jf See Exhibit A, attached hereto.
2f The NRC Staff received HL&P's Motion to Quash at 8:15 a.m. on Monday morning, March 24, 1980; D0J did not receive HL&P's Motion until approxi-mately 5:30 p.m. on the same day.
f 80038100 %
1 The role of Mr. Stagg's work, vis-a-vis HL&P's contenticas, was made clear by Mr. D. Eugene Simmons, of HL&P, under oath, on February 27, 1980.3_/ On that date, Mr. Simons verified HL&P's response to Interrogatory No. 4 of D0J's First Set of Interrogatories and Requests for Production of Documents which asked:
In order of their relative importance, describe the underlying policies or bases upon which HL&P and TU justify their refusal to engage in the interstate transmission or reception of electrical power or enenjy or to be interconnected with any other Electric Utility engaged in interstate commerce; provide any documents which state or describe these policies or bases.
HL&P's response of February 27, 1980, sta ted:
The December 17, 1979 study entitled " Economic Evaluation of Alternative Generation Expansion Plans for Electric Reliability Council of Texas and Southwest Power Pool", which was perfonned for Houston by Stagg Systems, Inc., supplements Houston's prior response. Houston believes that the Department has already been furnished a copy of this report.
Mr. Simons, on February 7,1980, during his latest deposition, indicated that he still did not know whether he would rely upon the work of Mr. Stagg for his expert opinions in this case.M Under the circumstances, the Staff believes that its ability to obtain discovery of Mr. Stagg through deposition and through inspection of his documents is crucial to its preparation for HL&P's business justification defense. The intentions of HL&P's attorneys, l
3/
Mr. Simons is HL&P's Vice-President for Corporate Planning, and is their designated, expert engineering witness in the South Texas proceeding. See Exhibit B, attached hereto.
y See Simons deposition transcript, at 11-12 attached hereto as Exhibit C.
1 announced in the Motion to Quash, contrast with the sworn statements of their client and expert witness. The NRC Staff and D0J believe the plain language of Mr. Simmons' responses on HL&P's behalf are compelling reasons for permitting the Stagg deposition tr so forward.
In addition, Mr. Simmons '
deposition is nw set for April 4-5, 1910.
To enable the NRC Staff and D0J to ask Mr. Siriarons meaningful questions about Mr. Stagg's work, the deposi-tion of Mr. Stagg must be held on March 31st as scheduled.
HL&P mentions the oral offer made by an attorney for HL&P during the Simons' deposition of February 7,1980, insofar as inspection of Mr. Stagg's documents is concerned.E Central & Scuth West Corporation's inspection of Mr. Stagg's documents arose in the context of Mr. Stagg's expected appearance as a witness before the Securities and Exchange Comission. Until the Department of Justice and the NRC Staff applied for this subpoena, Mr. Stagg was not obliged to produce any documents to the NRC proceeding. The NRC and the Department of Justice have the right to subpoena documents and to depose j
Mr. Stagg in this proceeding under 10 CFR E 2.740, irrespective of discovery in other agencies. As indicated, the initial " inspection" by C&SW revealed that, in the view of two of its engineers, meaningful review will take six months.O 1
HL&P maintains that Mr. Stegg is beyond the scope of discovery in this case since he is a non-testifying outside consultant. The Board's Orders of l
April 16, May 7, and March 20, 1980, indicate, however, that a non-testifying y
See transcript of deposition, at 10, attached hereto as Exhibit C.
y See Statement of Central & South West Corporation and Its Subsidiaries 0pposing Consolidation, at 4 (March 17,1980) in these proceedings.
s
, outside consultant cannot be immune from discovery if the non-testifying consultant's work may have an effect on testimony of a designated expert witness in the instant proceedings, or if that consultant is not part of an attorney's pretrial preparation. Under these criteria, the distinction HL&P attempts to draw between Rod Frame, a non-testifying outside consultant for the NRC Staff, and Mr. Stagg is inappropriate.
Rod Frame will be deposed in this proceeding, since he has ostensibly had input into Dr. Lerner's testimony (i.e., part of the NRC Staff's direct cast:) and because his work for NRC Staff counsel could not be separated from his work for Dr. Lerner.
See Board Order of March 20, 1980.
In the same vein, testimony of Mr. Robert McCuistion, Vice-President of Engineering for HL&P, establishes clearly that Glenn Stagg was actively involved with officers and employees of Houston Lighting & Power Company-in examining various electrical operations, including interstate operations, for planning and other purposes.3 Mr. Stagg, far from being solely employed by counsel for pretrial preparation, has had an ongoing relationship with HL&P staff engineers and other HL&P personnel. Under these circumstances, Mr. Stagg does not meet the criteria of a non-testifying outside consultant.
l Finally, attached to the HL&P Motion to Quash is a three-page letter from Mr. Douglas Green, attorney for HL&P, relating to the matter of consolida-tion. The NRC Staff and D0J deem this to be an unauthorized pleading which should not be considered by this Board. The Board's direct a for submittal Jf See McCuistion deposition transcript, at 153-55, 161-63, attached hereto as Exhibit D.
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t of views on consolidation was clear:
any party who wished its views heard should have presented them in writing by March 17,1980.U For the reasons stated above, the NRC Staff and 00J oppose the Motion of HL&P to Quash the Subpoena of Mr. Glenn W. Stagg. The NRC Staff also asks for expedited treatment of this matter, via conference call on Friday, March 28, 1980, since Mr. Stagg's deposition is set for Monday, March 31, 1980.
+
Respectfully submitted, j a' > > n -
Fredric D. Chanania Counsel for NRC Staff pW Susan B. Cyphert Attorney for U.S. Department of Justice Dated at Bethesda, Maryland this 26th day of March, 1980.
8f See Prehearing Conference Transcript, at 682 (March 7,1980).
Should the Board decide to review Mr. Green's letter, the Staff and D0J note that references in that letter to prior HL&P interrogatory responses are inapposite.
CP&L's Second Set of Interrogatories Addressed to HL&P, No. 25 concerns itself with the Mr. Simmons' testimony in the district court case and the issue of maximized coordination in ERCOT; CP&L's First Set of Interrogatories to HL&P, No. 9 concerns a descrip-tion of studies performed after January 1,1968 analyzing effects on HL&P's system if HL&P's facilities were in interstate commerce.
Neither of these two interrogatories nor HL&P's responses thereto are the same as the issues focused upon in D0J's First Set of Interrogatories to HL&P, No. 4.
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EXHIBIT B D)
CNITED STATES OF A" ERICA NUCLEAR REGULATOEY CG" MISSION BEFORE THE ATOMIC SAFETY AND LICENSING EC.'OD
. j3 In the Matter of
)
)
HOUSTON LIGHTING & POWER COMPANY
)
Docket Nos. 50-498A et al.
)
50-499A
)
(South Texas Project, Units 1
)
and 2)
)
)
)
TEXAS UTILITIES GENERATING COMPANY
)
Docket Nos. 5.0-445A
)
50-446A (Comanche Peak Steam Electric
)
Station,. Units 1 and 2)
)
HOUSTON LIGHTING & POWER COMPANY'S SECOND SET OF ADDITIONAL RESPONSES TO THE DEPARTMENT OF JUSTICE'S FIRST SET OF INTERROGATORIES AND O
REQUESTS FOR PRODUCTION OF DOCUMENTS The Department of Justice
(" Department") served its First Set.of Interrogatories and Requests for Production of Documents
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to Houston Lighting and Power Company
(" Houston") and Texas Utilities Companies on November 30, 1978.
Houston filed its Objections and Answers on January 11, 1979, and filed Additional Responses on April 27, 1979. Pursuant to the directive of the Board at the June 21, 1978 Prehearing Conference, and pursuant to General Instruction 2 of the Department's discovery requests, Houston hereby supplement's its prior responses.
Interrogatory No. 4 In order of th'eir relative importance, describe the under-
)
lying policies or bases upon which HL&P and TU justify their refusal to engage in the interstate transmission or reception of electrical power or energy or to be interconnectcd with any other Electric Utility engaged in interstate' commerce; provide any documents which state or describe these policies b se l
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'n 2;
i O Supplementa y Answer to Interrocatory No. 4 Thc December 17, 1979 study entitled " Economic Evaluation of Alternative Generation Expansion Plans for Electric Relia-bility Council of Texas and Southwest Power Pool", which was performed for Houston by Stagg Systems, Inc., supplements Houston's prior response.
Houston believes thet the Department has already been furnished a copy of this report.
Interrogatory No. 6 State in current dollar amounts what cost, if any, would be borne by HL&P and TU if ERCOT were interconnected with the Southwest Power Pool.
Had these costs, if any, been calculated prior to the opening of any interconnections on or about May 4, 19767 State all assumptions, underlying these calculations, who made such assumptions, the basis for such assumptions, when the calculations were made, and whether these calculations were undertaken for any purpose other than to use in this or related litigation.
Provide all studies, drafts, working papers, etc.
relating to the calculations of any such osts.
Supplementary Answer to Interrogatory No. 6 See Supplementary Answer to Interrogatory No.
4, supra.
In'arrogat'ory No. 9 (a) Identify each and every occasion, if any, upon which HL&P and/or TU communicated with West Texas Utilities Company or Central Power & Light Company the subject of possible inter-state operation by WTU or CP&L, giving the date(s) of any such communication (s), the surrounding circumstances, the indidivual(s) so communicating, the recipients of any such communication (s) and the response (s), if any, of those recipients.
(b) Provide all documents which relate to the response to this interrogatory.
Supplementary Answer to Interrocatory No. 9 The order of Administrative Law Judge Daniel M. Head in the proceeding Central Power and Light Company, FERC Docket No.
EL79-8 (October 31, 1979), supplements Houston's prior response.
A copy of the order is attached hereto as " Attachment A."
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Respectfully submitted,
[gq Qg-William J. Franklin Attorney for llouston Lighting
& Power Company r't' COUNSEL:
BAKER & BOTTS 3000 One Shell Plaza Houston, Texas 77002 LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 Dated:
February 27, 1980 e
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STATE OF TEXAS S
COUNTY OF HARRIS S
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared D. E. SIMMONS, who upon his oath stated that he has answered the foregoing Houston Lighting & Power Company's Second Set of Additional Responses to the Department of Justice's First Set of Interrogatories and Requests for Production of Documents in his capacity as Vice President-Engineering and Transmission and Distribution for Houston Lighting & Power Company, and all statements contained therein are true and correct.
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D. E.
SIMMONSV SUBSCRIBED AND SWORN TO BEFORE ME by the said g)/o h day of February, 1980.
C D. E. Simmons, on this M Md -
iOTARY PUBLIC in and for Harris County, T E X A S l
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