ML19305E021

Response to Houston Lighting & Power 800403 Motion to Compel Production of Documents & Deposition of Public Utils Board of City of Brownsville,Tx.Does Not Oppose Motion If Subj to Encl Protective Order.Appearance & Certificate of Svc Encl

ML19305E021
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	04/09/1980
From:	Jo Jacobs, Roth A ERVIN, VARN, JACOBS, ODOM & KITCHEN, FLORIDA CITIES, SPIEGEL & MCDIARMID
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8004220152
Download: ML19305E021 (14)

Text

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• ~ f UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BF? ORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

HOUSTON LIGHTING & POWER ) Docke t Nos. 50-4 98A COMPANY, ~et al. ) 50-499A

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(South Texas Project, Units )

1 a nd 2 ) )

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TEXAS UPILITIES GENERATING ) Docke t Nos. 50-4 4 5A COMPANY, -et al. ) 50-445A

)

(Comanche Peak Steam Electric )

Station, Units 1 and 2 ) )

COMMENTS AND REQUEST OF CERTAIN FLORIDA CITIES IN RESPONSE TO HOUSTON LIGHTING & POWER COMPANY'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND DEPOSITION TESTIMONY BY THE PUBLIC UPILITIES BOARD OF BROWNSVILLE'S EXPERT WITNESS, JOHN W. WILSON Certain Florida Cities 1/ hereby respond to the April 3, 1980 motion of Houston Lighting & Power Company (" Houston") insofar as Houston moves to compel the production of documents and deposi-tion testimony by the Public Utilities Board of Brownsville's

(" PUB") expert witness John W. Wilson concerning a nuclear power market in Florida. Florida Cities do not oppose such discovery if it is subject to a protective order that rigorously protects Cities' rig hts .

1/ The City of Gainesville, the Lake Worth Utilities Authority, the Utilities Commission of New Smyrna Beach, the Sebring Utilities Commission, and the Cities of Alachua , Bartow, Ft.

Meade, Homestead , Kissimmee , Mt. Dora, Newberry, St. Cloud, Starke , and Tallahassee , Florida.

80042pn E

Florida Cities are plaintiffs in Ft. Pierce Utilities Authority et al. v. Florida Power & Light Company, United States District Court for the Southern District of Florida, No. 79-5101.

In that case the Florida Cities allege tha t , among other thing s ,

there is a nuclear power market in Florida. Florida Cities have -

notified defendant Florida Power & Light Company ("FP&L") that Dr. Wilson is an expert for the Cities in the Florida case and  !

they are considering presenting Dr. Wilson as an expert witness in that case.

Florida Cities are also intervenors in Florida Power & Light Company (St. Luc ie Uni t No . 2 ) , NRC Docke t No. 50-3 89A, along witn L three other interve nors . The issue of whether there is a nuclear power market in Florida may also arise in the NRC's St. Lucie Unit No. 2 proceeding.

Discovery of exper' Wilson in Ft. Pierce et al. v. FP&L remains subject to t' d limitations of Rule 26(b)(4 ) of the Federal Rules of C.vil Procedure, unless and until the Court orders otherwise or the parties in that case agree to other discovery procedures. It wou1J be unf air and potentially preju-dicial to Florida Cities if FP&L achieves early discovery of Wilson's views about Florida through Houston's examination of Wilson in this Texas proceeding, especially if FP&L's experts are not subject to corresponding discovery.

Houston's motion recites that co-counsel for Houston of fered to have the sought-af ter testimony taken under an appropriate

protective order. Florida Cities request that any order granting Houston's motion to compel include protective provisions that will limit disclosure of Florida-related answers by Wilson.

Disclosure should be limited to (1) Florida Cities, (2) counsel, consultants and their staf fs who do not also represent FP&L, (3) the NRC and its staff, (4) the Department of Justice, and (5) the reporter. Disclosure to others might lead to premature disclo-sure to FP&L. We attach a proposed protective order, which follows and generally paraphrases the Board 's protective order of March 31, 1980 in this case. The proposed protective order pro-vides that any party may move for termination of the protective order if and when the matter under protection is disclosed through other proceedings.

Respectfully submitted, George Spiegel Robert A. Jablon Alan J. Roth Daniel Guttman of the law firm of Spiegel & McDiarmid 2600 Virginia Avenue N.W.

Washingto n, D.C. 20037 Joseph C. Jacobs Robert K. High, Jr.

of the law firm of Ervin, Varn, Jacobs , Odom

& Kitchen P.O. Box 1170 Tallahassee, Florida 3 02 By ,

Alan J. Roth ({,/

Attorneys for Florida Cities

• Draft Order Proposed by Florida Cities UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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HOUSTON LIGHTING & POWER ) Docke t Nos. 50-498A COMPANY, et al.

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) 50-499A

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(South Texas Project, Units )

1 a nd 2 ) ) '

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TEXAS UTILITIES GENERATING ) Docke t Nos . 50-4 4 5A COMPANY, ~et al. ) 50-446A

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(Comanche Peak Steam Electric )

Station, Units 1 and 2 ) )

ORDER TO COMPEL AND PROTECTIVE ORDER On April 3, 1980, Houston Lighting & Power Company filed Houston Lighting & Power Company's Motion to Compel Production of Documents and Deposition Testimony by the Public Utilities Board of Brownsville and Its Expert Witness, John W. Wilson, concerning nuclear power markets. On April 9, 1980 certain Florida Cities filed comments. They requested that any discovery of Dr. Wilson, who is an expert for Florida Cities in other proceedings con-cerning power markets in Florida, be subject to a protective order so that Florida Cities will not be prejudiced by unfair or premature disclosures that might reach parties adverse to the Cities in the other proceedings.  !

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The Board finds that there is good cause for granting HL&P's [

motion to compel, subject to the protective order requested by Florida Cities.

WHEREFORE, IT IS ORDERED that the aforementioned motion of HL&P is granted, subject to the following protective provisions: .

1. Documents produced pursuant to this order by John W. Wilson and deposition testimony by John W. Wilson concerning Florida shall not be disclosed to any pe,rson other than (a)

Florida Cities; (b) counsel for parties to this proceeding and those assisting counsel for such parties, including necessary 1

secretarial, paralegal and clerical personnel, but excluding any who are also counsel to Florida Pvwer & Light Company ("FP&L")

and those assisting counsel to EP&L; (c) indepeadent consultants and technical experts and their staff who are ass sting counsel in connection with this litigation but excluding ary who are also (

consultants or advisors to FP&L or their staffs; (d) qualified court reporters involved in reporting matters in this litigation; j i

and (e) the Nuclear Regulatory Commission (" Commission"), the Atomic Safety and Licensing Board (" Board"), the presiding officer or Commission's Staff.

2. Protected documents, information contained therein, and protected deposition testimony shall not be made available to any person de'signated -in paragraph 1(c) unless they shall have [

first read this Order and shall have agreed in writing (a) to be bound by the terms thereof and (b) not to reveal such protected a

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. . documents, information and testimony; provided , however, that nothing in this Order shall p: ' ant any party from disclosing documents or testi aony produced under the terms of this Order that indicate any violation of law or statute to the agency of the Federal Goi ernment authorized to prosecute such violation; but further p'ovided, that Florida Cities be given ten (10) days written notice prior to the disclosure of such documents or testimony, outside of the NRC Staff, the Antitrust Division of the Department of Justice, or the Office of the Attorney General.

It is understood that before seeking judicial relief, the fur-nishing party will consult Justice in an effort to reach an agreement concerning the appropriate protection of such i

materials.

3. If the Commission or the Board orders that access to or dissemination of protected documents, information, and testimony defined above shall be made to persons not included in paragraph 1 above, such matter shall only be accessible to, or disseminated to, such persons based upon the conditions per-taining to , and the obligations arising from this Order, and such persons shall be considered subject to it.

4. Any portion of a transcript in connection with this proceeding containing any protected documents, information con-tained therein, or protected testimony shall be bound separately and filed under seal. When-any protected documents, info rma tion

contained therein, or protected testimony are included in an authorized transcript of a deposition or exhibits thereto, arrangements shall be made with the court reporter taking the depositions to bind such confidential portions and separately label them " Florida Cities, CONFIDENTIAL INFORMATION, SUBJECT TO PROTECTIVE ORDER." Before a court reporter receives any such document or information, he or she shall have agreed in writing to be bound by the terms thereof.

5. Any protected document, information therein, or protected testimony defined above is to be treated as such within the meaning of 5 U.S.C. S552(b)(4) and 18 U.S.C. S1905, subject to a final ruling , after notice, by the Commission, Board, the presiding of ficer, or the Commission's Freedom of Information Act Officer to 'he c contrary, or by appeal of such a ruling, interlo-cutory or otherwise.

6. If protected documents, information therein, or protected testimony are disclosed to any person other than ir. the manner authorized by this Protective Order, the person respon-sible for the disclosure must immediately bring all pertinent facts relating to such disclosure to the attention of counsel for Florida Cities and the presiding of ficer and , without prejudice to other rights and remedies of Florida Cities, make every effort to prevent further disclosure by counsel or by the person to whom the document or information was communicated.

7. Nothing in this Order shall affect the admissibil-ity into evidence of protected documents, information therein, or protected testimony defined above, or abridge the right of any person to seek judicial review or to pursue other appropriate judicial action with respect to any ruling made by the Commission, its Freedom of Information Act Officer, the Board of the presiding of ficer concerning the issue of the status of pro-tected information.

8. Upon final termination of this procedure, each per-son that is subject to this Order shall assemble and return to counsel for Florida Cities all protected documents, info rma tion taken therefrom, and protected testimony including all copies of such matter which may have been made, but not including copies containing notes or other attorney's work-product that may have been placed thereon by counsel for the receiving party. Copies containing attorneys ' work-product shall be destroyed or the pro-tected material obliterated. This paragraph shall not apply to the Commission, the Board, the presiding of ficer or the Commission's Staf f, which shall retain such material pursuant to statutory requirements and for other record keeping purposes, but may destroy those additional copies in its possession which regards as surplusage.

9. This order shall not apply to any document, info r-mation contained therein, or testimony that becomes available to i

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others without restriction and without violation of this order.

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10. Any person may move that the protective provisions of this order be terminated if discovery in other proceedings causes unrestricted disclosure of the matter protected herein, or for other good cause shown. -

1 A copy of this Order shall be served on all parties. [

< r It is so ordered. I

, FOR THE ATOMIC SAFETY {

AND LICENSING BOARD [

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Dated at Bethesda, Maryland  !

' this day of , 1980  ;

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

HOUSTON LIGHTING & POWER ) Docke t Nos. 50-498A '

COMPANY, et al.

) 50-499A (South Texas Project, Units )

1 and 2) )

)

TEXAS UTILITIES GENERATING ) Docke t Nos . 50-445A COMPANY, et al. ) 50-446A (Comanche Peak Steam Electric )

Station, Units 1 and 2 ) )

NOTICE OF SPECIAL APPEARANCE BY CERTAIN FLORIDA CITIES Notice is hereby given that the undersigned attorney herewith enters a special appearance on behalf of certain Florida Cities in the captioned matter, to raspond to an April 3, 1980 motion of Houston Lighting and Power Company af fecting those Cities. In accordance with S 2. 713 of the Commission's Rules of Practice, the .

following information is provided:

Name: Alan J. Roth Address: Spiegel & McDiarmid 2600 Virginia Avenue N.W.

Wa shing to n, D.C. 20037 Telephone Number: Area Code 202-333-4500 Admission: District of Columbia Name of Party: The City of Gainesville, the Lake Worth Utilities Authority, the Utilities Commission of New Smyrna Beach, the Sebring Utilities Commission, and the Cities of Alachua, Bartow, Pt. Meade, Homestead, Kissimmee, Mt. Dora, Newberry, St. Cloud , Starke , and Tallahassee ,

Florida.

Ala'n J. Roth (,/

Attorney for Florida Cities Da ted : April 9, 1980 e

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• UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

HOUSTON LIGHTING & POWER ) Docke t Nos. 50-498A COMPANY, et al. ) 50-499A

)

(South Texas Project, Units )

1 and 2) )

)

TEXAS UTILITIES GENERATING ) 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 I have caused copies of the foregoing Notice of Special Appearance and Comments and Requests of Certain Florida Cities to be made on the following parties listed hereto this 10th day of April 1980, by depositing copies thereof in the United States mail, first class, postage paid.

Marshall E. Miller, Chairman Sheldon J. Wolfe, Esquire i Atomic Safety & Licensing Board Atomic Safety & Licensing Board Panel Panel Nuclear Regulatory Commission Nuclear Regulatory Commission '

Washing to n, D. C. 20555 Wa shing to n, D. C. 20555 Michael L. Glaser, Esquire Joseph Rutberg , Esquire 1150 17th Street, N. W. Antitrust Counsel Washing to n, D. C. 20036 Nuclear Regulatory Commission Wa shing to n, D. C. 20555 Fredric D. Chanania, Esquire Michael B. Blume, Esquire R. Gordon Gooch, Esquire Ann Hodgdon, Esquire John P. Mathis, Esquire Nuclear Regulatory Commission Baker & Botts Washing ton, D. C. 20555 1701 Pennsylvania Avenue N.W.

Washing to n, D. C. 20006 Jerome E. Sharfman, Esquire U.S. Nuclear Reglatory Commission Washing to n, D.C. 20555

2-Jerome Saltzman, Chief Robert Lowenstein, Esquire I Antitrust & Indemnity Group J. A. Bouknig ht , Jr., Esquire Nuclear Regulatory Commission William J. Franklin, Esquire Washington, D. C. 20555 Lowenstein, Newman, Reis, Axelrad & Toll  !

Chase R. Stephens, Chief 1025 Connecticut Avr.ue , N. W.

Docketing & Service Section Washington, D. C. 20036 office of the Secretary Nuclear Regulatory Commission Frederick H. Ritta, Esquire Washing ton, D. C. 20555 Law Offices of Porthcutt Ely Watergate 600 Luilding David M. Stahl, Esquire Washing to n, D. C. 20037 Sarah F. Holzsweig, Esquire Isham, Lincoln & Beale Robert O'Neil, Esquire 1120 Connecticut Avenue, N.W. Wheatley & Wolleson Suite 325 1112 Watergate Office Building Wa sning to n, D.C. 20036 2600 Virginia Avenue, N. W.

Washing ton, D. C. 20037 Susan B. Cypher t , Esquire Robert Fabricant, Esquire Rof f Hardy, Chairman and Kenneth M. Glazier Chief Executive Officer Antitrust Division Central Power & Light Company Department of Justice P. O. Box 2121 P. O. Box 14141 Corpus Christi, Texas 78403 Washing ton, D.C. 20444 G. K. Sprucc, General Manager Joseph Knotts, Esquire City Public Service Board Nicholas S. Reynolds , Esquire P. O. Box 1771 Debevoise & Liberman San Antonio, Texas 78201 1200 17th Street, N. W. ,

Washington, D. C. 20036 Jon C. Wood, Esquire W. Roger Wilson, Esquire Douglas F. John, Esquire Matthews, Nowlin, Macfarlane McDermott, Will & Emery & Barrett 1101 Connecticut Avenue , N.W. 1500 Alamo National Building Suite 1201 San Antonio, Texas 78205 Washing to n, D.C. 20036 Perry G. Brittain, President Joseph I. Worsham, Esquire Texas Utilities Generating Co.

Merlyn D. Sampels, Esquire 2001 Bryan Tower Spencer C. Relye a , Esquire Dallas, Texas 75201 Worsham, Forsythe & Sampels 2001 Bryan Tower Robert C. McDiarmid, Esquire Suite 2500 Robert A. Jablon, Esquire Dallas , Texas 75201 Spiegel & McDiarmid 2600 Virginia Avenue N.W.

Washing ton, D.C. 20037 s

. , R. L. Ha ncock, Director G. W. Oprea, Jr.

City of Austin Electric Utility Executive Vice President Department Houston Lighting & Power Co.

P. O. Box 1088 P, O. Box 1700 Austin, Texas 78767 Houston, Texas 77001 Jerry L. Harris, Esquire W. S. Robso n , General Manager Richard C. Balough, Esquire South Texas Electric Coop. , Inc.

City of Austin Route 6, Building 102 P. O. Box 1088 Victoria Regional Airport Austin, Texas 78767 Victoria, Texas 77901 Dan H. Davidson Michael I. Miller, Esquire City Manager Isham, Lincoln & Beale City of Austin One First National Plaza P. O. Box 1088 Chicago, Illinois 60603 Austin, Texas 78767 Donald Clements, Esquire Do n R. Butler, Esq. Gulf States Utilities Co.

Sneed , Vine, Wilkerson, Selman P. O. Box 2951

& Perry Beaumont, Texas 77074 P. O. Box 1409 Austin, Tbxas 78767 Knoland J. Plucknett Executive Director Morgan Hunter, Esquire Committee on Power for the McGinnis, Lochridge & Kilgore Southwest, Inc.

900 Congress Avenue 5541 Skelly Drive Austin, Texas 78701 Tulsa, Oklahoma 74135 Kevin B. Pratt, Esquire Jay M. Galt, Esquire Linda Aker, Esquire Looney, Nichols, Johnson & Hayes P. O. Box 12548 219 Couch Drive Capital Station Oklahoma City, Oklahoma 73101 Austin, Texas 78767 Somervell County Public Library E. W. Barnett, Esquire P. O. Box 417 Charles G. Thrash, Jr., Esquire Glen Rose , Texas 76403 J. Gregory Copeland, Esquire Theodore F. Weiss, Jr., Esquire Maynard Human, General Manager Baker & Botts Western Farmers Electric Coop.

3000 One Shell Plaza P. O. Box 4 29 Houston, Texas 77002 Anadarko, Oklahoma 73005

7 James E. Monahan Robert M. Rader, Esquire Executive Vice President Conner, Moore & Corber and General Manager 1747 Pennsylvania Avenue, N. W. ,

Brazos Electric Power Coop., Inc. Washing to n, D. C. 20006 P. O. Box 6296 Waco, Texas 76706 W. N. Woolsey, Esquire  ;

Dyer and Redford Mr. G. Holman King 1030 Petroleum Tower West Texas Utilities Co. Corpus Christi, Texas 78474 P. O. Box 841 Abilene, Texas 79604 W

t O a . _ , >j Alan J. Rothv /

Attorney for Certain Florida Cities I

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