ML19305D495
| ML19305D495 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak, South Texas  |
| Issue date: | 04/09/1980 |
| From: | Chanania F, Hodgdon A NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8004150157 | |
| Download: ML19305D495 (10) | |
Text
TSk UtlITED STATES OF Af1 ERICA flVCLEAR REGULATORY C0ft:11SSIO!1 BEFORE THE AT0'11C SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
HOUST0tl LIGHTING & POWER C0!!PANY NRC Docket Nos. 50-498A PUBLIC SERVICE BOARD OF SAN AflT0t110
)
50-499A CITY OF AUSTIll
)
CENTRAL POWER AND LIGHT C0t1PANY
)
(South Texas Project, Unit Nos.1
)
and 2)
)
TEXAS UTILITIES GENERATING NRC Docket Nos. 50-445A C0f1 pat 1Y, et al.
)
50-446A (Comanche Peak Stean Electric
)
Station, Units 1 and 2)
)
NRC STAFF RESP 0t;SE TO MEf10RANDA 0F AUTHORITIES SUB 11TTED BY HOUSTON LIGHTING & POWER COL 1PANY, TEXAS UTILITIES GENERATING C0f1PANY, AND CENTRAL AND SOUTH WEST C0f1PANIES Pursuant to the Board's Order of flarch 28, 1980, permitting responses to opposing parties' nemoranda of authorities on whether certain settlement documents are privileged and not discoverable, the NRC Staff hereby files its response to the nemoranda submitted by Houston Lighting & Power Company
("HL&P"), Texas Utilities Generating Company ("TUGC0") and Central and South West Companies ("CSW") on April 4, 1980.
At the outset it is important to bear in mind that the documents sought by the Joint Motion are characterized as " factual evaluations and/or studies...
9 800.4150 /g 7
. i which assess the technical feasibility and/or cost of electrical intercon-nections between the Texas Interconnected System (' TIS')/ Electric Reliability Council of Texas ('ERCOT') and the South West Power Pool ('SWPP')."1/
We l
are not seeking the terms of any settlement agreement, or the positions with respect to settlement or an attorney's work product in connection with settlement.2/
NRC Staff now turns to the authorities relied upon by the petitioners here to establish the existence of a privilege against discovery for documents j
relating to settlement. HL&P relies on the Licensing Board's Anial in this l
proceeding of an analysis made by Staff's economic expert witness of license conditions agreed upon by the parties in another pending proceeding.2/
F 1/
Joint Motion of the Department of Justice and the Nuclear Regulatory Commission Staff for Modification of Board's Order Regarding Protection of Settlement Discussions and for an Order to Compel Production of Certain Documents and Testimony, February 28, 1980 at 2.
2/
The parties opposing discovery (petitioners here) have now attempted to change the characterization of the documents requested; previously, there was no dispute as to the Staff and the Department's characteriza-tion of the documents sought as " feasibility studies of certain inter-state interconnections."
In fact, counsel for HL&P estimated that there were fewer than twenty such documents in HL&P's possession and repeatedly expressed his willingness to list them.
(PrehearingCon-ference, June 1,1979 Tr. 384, Prehearing Conference March 7,1980 Tr. 575-76, 621).
Counsel for the other parties have been equally untroubled by this characterization. Now, however, HL&P refers to these documents as " documents in the nature of studies of settlement i
proposals" (HL&P's Memorandum, April 4, 1980, at 9) and offers court and agency decisions denying discovery of such documents as precedent for a denial here. Another party, CSW, now characterizes the documents, l
which were fonnerly conceded to be engineering studies, as " work product" but does not address the issue of whether there is a settlement privilege i
(CSW's Memorandum, April 4, 1980).
1 3/
HL&P's Memorandum, at 8.
i l
l
~
. The Staff submits that feasibility studies of proposed interconnections between utilities in TIS /ERCOT and the South West Power Pool are far differ-ent from economic commentary on license conditions.
HL&P has neglected to consider the objectives of discovery as set forth in 10 CFR $ 2.740(b)(1):
that the infonnation sought must be reasonably calculated to lead to the discovery of admissible evidence.
Discovery of Dr. Lerner's brief opinions on a set of proposed settlement license conditions in another proceeding cannot be calculated to lead to admissible evidence of any relevance to the issues raised in these proceedings.
By contrast, the technical studies sought here are the only recent studies of ERCOT-SWPP interconnections done by the affected parties themselves and would be highly relevant to the issues in these proceedings.
Further, HL&P argues that it needs Dr. Lerner's analysis to discover his views on the electric utility industry.O HL&P has had two opportunities to depose Dr. Lerner to ascertain "the economic principles that Dr. Lerner has applied in an antitr st analysis of this industry...,"U t' e last being two full days of cross-examination on April 1-2, 1980.
Conversely, the NRC Staff and D0J have not had any opportunity to discover the documents sought nor to ask ny questions based on these recent technical studies during depositions.
l 9
W e.
. HL&P and TUGC0 attempt to demonstrate that a " settlement" priviler,e exists, by referring to cases denying motions to compel discovery of certain settle-nent documents.
None of the cases suggest that a settlenent privil9ge exists.
The cases they use to support that argument, however, do sugsest that the denials were not based on the existence of a " settlement priviiege" but upon the failure of the requesting party to sustain the burden applicable to any discovery rbquest: showing that the requested material was discoverable because of the need for such information.
In Ayers v. Pastine Anusement Co., 240 F.Supp. 811 (E.D. S.C. 1965),E a defendant in a private antitrust action noved for discovery under Rule 34 of docunents concerning negotiations which culminated in the execution of a covenant not to sue.
The court compelled discovery of a true copy of the covenant and granted novant leave to apply for further discovery if the nature of the settlement did not appear on the face of the agreement.
The court's decision was based on its reluctance to ask a lawyer to open his files and disclose correspondence, memoranda and other evidence reflecting the negotiations leading up to settlenent.
It is apparent from a reading of the case as a whole that the court's basic rationale was that (1) a valid need for the infomation had not been demonstrated and (2) it considered a lawyer's files a sanctuary.
City of Groton v. Connecticut Light and Power Co., 84 F.R.D. 420 (D.C.,
l D. Conn.1979), is cited by both HL&P and TUGC0 as authority for the existence 6/
Id. at 4.
. of a settlement privilege.E In that case, the specific tems of the actual settlement were sought by non-settling plaintiffs. The court, in applying Fed. R. Civ. P. 26(b)(1), simply followed the nomal tests of relevancy in evaluating the discovery request involved.
Indeed, this was the predicate for balancing the prejudice to the settling parties against the movants' need.
The court stated that "[r]elevancy, the touchstone of discovery, is defined in terms of the liklihood that evidence useful to a party's case may be uncovered."U In denying the requesi, the court did not suggest the existence of a " settlement privilege."
In addition, fomal discovery in that case had long since closed, mooting the non-settling plaintiffs' argu-ments that disclosure of the tems of the settlement might turn up evidence of " additional anticompetitive activities" on the part of the defendants.E The movants further rely upon two cases involving the conciliation process followed at the Equal Employment Opportunity Commission, in Haykel v. G.F.L.
Furniture Leasing Co., et. al. 76 F.R.D. 386 (D.C. N.D. Ga.1976)E efendant d
sought all conciliation material in an EE0C file. The court considered this request as an inquiry into the substantive aspects of conciliation and could conceive of no purpose which would be served by allowing discovery of this material. With respect to the specific question that the Board asked the l
))
HL&P's Memorandum, at 3-4,10; TUGC0's Memorandum, at 2, 9-11.
y 84 F.R.D. at 422.
9/
Id. at 423.
i 10f Cited in HL&P's Memorandum, at 5-6.
~
. parties to address, i.e., is ttere a settlement privilege, the Court in effect answers in the negative:
"while we car. cot say that any discovery request which defendants might make concerning conciliation negotiation material would be denied a fortiori, we must conclude that the instant request is overbroad and unsupported by relevant case authority."E In EE0C v. E.I duPont de Nemours & Co., 9 FEP Cases 65 (W.D. Ky 1974), $
the court states that the EE0C is required as a jurisdictional pre-requisite to an enforcement action to attempt through informal methods to secure a conciliation agreement.
In this case the court concluded that allowing the requesting party to probe into every aspect and detail of negotiations carried out without formality or ceremony would produce chilling effects on the parties and emasculate the entire conciliation procedure.
Staff submits that discovery sought in that case was different from that sought here, and there is nothing in the decision to suggest the existence of a settlement privilege.
The last major case relied upon by movants involves a request for FTC Staff memoranda commenting on a settlement proffered by the company and rejected by the Commission.
In Seeburg Corp. 20 Ad L 2nd 603 (FTC 1966) E the Federal l
Trade Commission (FTC) refused to produce the memoranda. The company in g 76 F.R.D. at 392.
I 12/ Cited in HL&P's Memorandum, at 6.
i g Cited in HL&P's Memorandum, at 7.
1 I
I I
J o
. support of its position relied on provisions of the Freedom of Infomation Act to support its claim. The FTC held that the documents in question were specifically exempted from disclosure under the FOIA. E The material sought would have disclosed the mental processes involved in an FTC decision on whether to issue a complaint.
This situation is clearly not relevant to the NRC staff's request for specific factual studies of the economic and engineering feasibility of interconnecting electrical systems.
As nothing offered as authority in HL&P, TUGCO, and CSW's Memoranda in response to the Board's Order of March 28, 1980, establishes the existence of a settlement privilege or a trend toward the establishment of such a privilege, Staff respectfully asks the Appeal Board to deny directed certi-fication of the Licensing Board's ruling on the Department of Justice and the NRC Staff's Joint Motion of February 28, 1980 or, if directed certifi-cation is granted, to affim the Licensing Board ruling of March 7,1980, ordering the production of the documents sought.
Respectfully submitted,
.g_k e(c
>h h Cwt t A h
Joseph Rutberg Fredric D. Chanania Counsel for NRC Staff W
9 Ann'P. Hodgdon
/
Counsel for NRC Staff Dated at Bethesda, Maryland this 9th day of April, 1980 M/ 20 Ad. L. 2d at 616.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
(
In the Matter of
)
)
HOUSTON LIGHTING & POWER COMPANY
)
NRC Docket Nos. 50-498A PUBLIC SERVICE BOARD OF SAN ANTONIO
)
50-499A CITY OF AUSTIN
)
CENTRAL POWER AND LIGHT COMPANY
)
(South Texas Project, Unit Nos.
)
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)
)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO MEMORANDA 0F AUTHORITIES l
SUBMITTED BY HOUSTON LIGHTING & POWER COMPANY, TEXAS UTILITIES GENERATING COMPANY, AND CENTRAL AND SOUTH WEST COMPANIES in the above-captioned proceeding have been served on the following by deposit in the United States mail, first i
class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 9th day of April 1980:
Robert Fabrikant, Esq.
Marshall E. Miller, Esq., Chairman Donald A. Kaplan, Esq.
Atomic Safety and Licensing Board Panel Susan B. Cyphert U.S. Nuclear Regulatory Commission Nancy A. Luque Washington, D. C.
20555 Frederick H. Parmenter, Esq.
David A. Dopsovic, Esq.
Michael L. Glaser, Esq.
P. O. Box 14141 1150 Seventeenth Street, N.W.
Washington, D. C.
20044 Washington, D. C.
20036 Mr. William C. Price Sheldon J. Wolfe, Esq.
Central Power & Light Co.
Atomic Safety and Licensing Board Panel P. O. Box 2121 U.S. Nuclear Regulatory Commistion Corpus Christi, Texas 78403 Washington, D. C.
20555 G. W. Oprea, Jr.
Atomic Safety and Licensing Board Executive Vice President U.S. Nuclear Regulatory Commission Houston Lighting & Power Company Washington, D. C.
20555 P. O. Box 1700 Houston, Texas 77001 Docketing and Service Section Office of the Secretary Robert E. Bathen U.S. Nuclear Regulatory Commission R. W. Beck & Associates Washington, D. C.
20555 P. O. Box 6817 Orlando, Florida 32803 R. L. Hancock, Director City of Austin Electric Utility Somervell County Public Library P. O. Box 1088 P. O. Box 417 Austin, Texas 78767 Glen Rose, Texas 76043 l
t
.. R. Gordon Gooch, Esq.
Robert Lowenstein, Esq.
John P. Mathis, Esq.
J. A. Bouknight, ESq.
Steven R. Hunsicker, Esq.
William J. Franklin, Esq.
Baker & Botts Peter G. Flynn, Esq.
Suite 300 Douglas G. Green, Esq.
1701 Pennsylvania Avenue, N.W.
Lowenstein, Newman, Reis, Axelrad Washington, D. C.
20006
& Toll 1025 Connecticut Avenue, N.W.
J. K. Spruce, General Manager Washington, D.C.
20036 City Public Service Board P. O. Box 1771 Jerry L. Harris San Antonio, Texas 78203 Richard C. Balough Dan H. Davidson, City Manager Robert C. McDiarmid, Esq.
City of Austin Robert A. Jablon, Esq.
P. O. Box 1088 George Spiegel, Esq.
Austin, Texas 78767 David A. Giacalone, Esq.
Marc R. Poirier, Esq.
Jerome Saltzman, Chief Spiegel & McDiarmid Antitrust & Indemnity Group 2600 Virginia Avenue, N.W.
U.S. Nuclear Regulatory Commission Washington, D.C.
20037 Washington, D. C.
20555 Jon C. Wood, Esq, Jay Galt, Esq.
W. Roger Wilson, Esq.
Jack P. Fite, Esq.
Matthews, Nowlin, Macfarlane Looney, Nichols, Johnson & Hayes
& Barrett 219 Couch Drive 1:00 Alamo National Building Oklahoma City, Oklahoma 73102 San Antonio, Texas 78205 Merlyn D. Sampels, Esq.
Mr. W. N. Woolsey Jos. Irion Worsham, Esq.
Kleberg, Dyer, Redford & Weil Spencer C. Relyea, Esq.
1030 Petroleum Tower Worsham, Forsythe & Sampels Corpus Christi, Texas 78474 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 Dick Terrell Brown, Esq.
800 Milam Building Morgan Hunter, Esq.
San Antonio, Texas 78205 McGinnis, Lochridge & Kilgore Fifth Floor, Texas State Bank Building E. William Barnett, Esq.
900 Congress Avenue Charles G. Thrash, Jr., Esq.
Austin, Texas 78701 Melbert D. Schwarz, Esq.
Theodore F. Weiss, Esq.
Joseph B. Knotts, Esq.
J. Gregory Copeland, Esq.
Nicholas S. Reynolds, Esq.
Baker & Botts C. Dennis Ahearn, Esq.
3000 One Shell Plaza Debevoise & Liberman Houston, Texas 77002 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeal Michael C. Farrar, Esq.
A c Safety and Licensing Appeal U
Nuclear Regulatory Commission Washington, D.C.
20555
- U.S. Nuclear Regulatory Commission Thomas S. Moore, Esq.
Washington, D.C.
20555
- Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 *
- Douglas F. John, Esq.
Donald M. Clements, Esq.
McDermott, Will and Emery Gulf States Utilities Company 1101 Connecticut Avenue, N.W.
P. O. Box 2951 Suite 1201 Beaumont, Texas 77704 Washington, D. C.
20036 Robert M. Rader, Esq.
Don R. Butler, Esq.
Conner, Moore & Corber 1225 South West Towers 1747 Pennsylvania Avenue, N.W.
Austin, Texas 78701 Washington, D.C.
20006 John W. Davidson, Esq.
Sawtelle, Goode, Davidson & Troilo Mr. G. Holman King 1100 San Antonio Savings Building West Texas Utilities Co.
San Antonio, Texas 78205 P. O. Box 841 Abilene, Texas 79604 Linda Aaker Attorney General's Office State of Texas P. O. Box 12548 Austin, Texas 78711 James E. Monahan Executive Vice President and General Manager Brazos Electric Power Cooperative, Inc.
P. O. Box 6296 Waco, Texas 76706 Frederick H. Ritts, Esq.
William H. Burchette, Esc.
Law Offices of Northcu:t Ely Watergate 600 Building Washington, D. C.
20037 Michael I. Miller, Esq.
Michael B. Blume James A. Carney, Esq.
Counsel for NRC Staff Sarah N. Welling, Esq.
Isham, Lincoln & Beale 4200 One First National Plaza Chicago, Illinois 60603 i
David M. Stahl, Esq.
l Isham, Lincoln & Beale l
Suite 325 1120 Connecticut Avenue, N.W.
Washington, D. C.
20036 l
Maynard Human, General Manager Western Farmers Electric Cooperative P. O. Box 429 Anadarko, Oklahoma 73005