ML19305E571

Forwards Correspondence Between DOJ & Doe,Re WE Scott Availability as Doi Expert Witness,For Redeposition

ML19305E571
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	04/16/1980
From:	Cyphert S JUSTICE, DEPT. OF
To:	Copeland J BAKER & BOTTS
References
60-416-105, NUDOCS 8005200066
Download: ML19305E571 (10)

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j,'jhI UNITED STATES del %)rnlENT OF JUSTICE vmh) g ^Q/'v , wrsist.scl o.s, D c. osso C3

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J. Gregory Copeland, Esquire -

i Baker & Botts j 3000 One Shell Plaza l Houston, Texas 77002  !

Re: In the Matter of Houston Lichting j

~and Power Co., et al. (South Texas Project, Units 1 and 2), Docket Nos. 50-498A, 50-499A; Texas Util-ities Generating Company, et al.

(Comanche Peak Steam Electric Sta-tion, Units 1 and 2), Docket Nos.

50-445A, 50-446A i

Dear Mr. Copeland:

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Enclosed please find copies of the correspondence between the Department of Justice and the Department of Energy relating to the availability of Mr. William E. Scott, the Department of .

Justice's designated expert engineering witness, for participa-tion in the above-captioned proceedings. As is evident from the correspondence, these time restraints have now been imposed on the Department of Justice by the Department of Energy due to Mr. Scott's other duties and responsibilities as Branch Chief of the Atlanta Office of the Division of Power Supply and Re-liability, Office of Utility Systems. The Department of Jus-tice will, however, continue to cooperate with you to provide the Applicants and other parties with an opportunity to redepose l Mr. Scott at a mutually convenient time and place. In the ,

l event that Mr. Scott's allotted time does not meet your needs t or those of the Board, I suggest we raise that problem with the f l Board if and when a problem arises.

Sincerely, M y

! Susan Braden Cyphert b l Attorney f l Energy Section Enclosures i cc: all Board members all counsel of record William E. Scott

- THIS DOCUMENT C0NTNHS f POOR QUAUTY PAGES Richard Weiner 1

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"'7 Departrnent of Energy

. Washington, D.C. 20461 APR 0 1 1990 y Mr. Donald L. Flexner -

Deputy Assistant Attorney General Antitrust Division U. S. Department of Justice Washington, D. C. 20530

Dear Fe. Flexner:

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I am in receipt of your letter of March 27, 1980, requesting that Mr. William Scott, Branch Chief of the Atlanta, Georgia, office of the Division of Power Supply and Reliability, Office of Utility Systems, participate in a Nuclear Regulatory Commission (NRC) anti trust hearing. I understand that you are requesting that Mr. Scott appear as an expert witness for the Department of Justice in the NRC proceeding. Personnel from both of our staffs have been discussing this request for the past several days.

Mr. Scott has, for some time, been affording considerable assistance to your staff in both the preparation of expert testimony and the taking of various depositions. Since the Department of Justice's original request for Mr. Scott's service in November of 1978, several changes in your requirements have added significantly to the time required of him in this matter. We have allowed for an extension of his participation well past a time and into areas other than we originally anticipated in our desire to be cooperative.  :

Although your staff, earlier this year, informed us that Mr. Scott's service was no longer required as an expert witness, we still offered to make him available on an "ad hoc" basis to help with a few depositions.

I I understand that a health problem with an NRC expert witness, I making his appearance at the hearing questionable, has caused you to make this expanded request for assistance. I am sympathetic ,

with your situation and am willing to provide you this further assistance. However, because of very limited resources, our participation in a similar proceeding, and Mr. Scott's unique l participation in certain legislatively mandated efforts, I must l insist on the following preconditions to making William Scott l available as you request: ,

1) Mr. William Scott, in his participation in the NRC proceedings, is representing himself and that any ,

and all opinions, conclusions, or statements made by him are solely his own and in no manner represent any

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policy, conclusions, or statements of the Department of Energy (DOE), the Federal Energy Regulatory Commis-sion (FERC), and its predecessor agency, the Federal .

Power Commission (FPC). Mr. Scott is not authorized , ,

nor is he in a position to draw any conclusion or '

j recommendations on behalf of DOE from any studies or _

analyses in which he participated for DOE, FERC, or FPC.

This is because the Department of Energy has not pre-judged any of the issues in this case.and is awaiting -

the outcome of the ongoing FERC study to determine the feasibility and benefits of interconnection across the Texas border. Mr. Scott's participation in the NRC proceeding is solely to testify for the Department of Justice and not as a representative of the Department

, of Energy.. ,

2) The following time commitment presented by your staff for Mr. Scott's participation must be adhered to:

o Two days for continuance of his deposition - between now and May 14, 1980.

o Two days for the further preparation of the presentation of his direct testimony - between now and May 14, 1980.

o Five days for the presentation of his direct testimony, including all voir dire and cross examination - between May 14, 1980, and June 15, 1980.

o Three days for review of oth'er technical testimony presented in this hearing and the presentation of any rebuttal testimony by him. This time commitment includes all cross examinations of Mr. Scott's rebuttal. (After June 15, 1980) -

4 While we are interested in assisting your staff, due to my very limited resources and Mr. Scott's other responsibilities, we will not be able to allow any deviation from the above time commitment.

3) The Atomic Safety and Licensing Board (ASLB) must formally accept the conditions 1 and 2 above prior to my granting of your request.

4) All travel costs incurred by Mr. Scott in this assignment must be paid directly by the Department of Justice. We can no' longer await reimbursement for such expenses.

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Please notify me of your acceptance of the above conditions and forward the ASLB's acceptance of conditions 1 and 2. I shall 1

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await hearing from you and receiv'ing'the ASLB acceptance so that;.

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' ':1.g I may satisfy'your request. .

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Sincerely, -

i Jerry . Pfeffer Assistant Administrator j for Utility Systems Economic Regulatory Administration i d

cc: Richard Weiner ~

r Mike Oldak

• Lawrence Gollomp ,

William Scott Bob Fabrikant e

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U.S. Department ofJustice

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l MAR 271980 wan ton.o.c s zono ,

r. Jerry L. Pfeffer ,

,- Assistant Administrator for Utility Systems Economic Regulatory Administration Department of Energy '

6 0 01 M S t . , N . W .

Washington, D.C. 20485 __

Dear Mr. Pf ef fer:

The purpose of this letter is to formally renew the .,

Department of Justice's request to have Mr. William Scott, an engineer in the Atlanta . regional of fice of the Economic L Regulatory Administration, testify as an expert witness in the upcoming Nuclear Regulatory Commission ("NRC")

Antitrust proceeding relating to the licensing of several nuclear generating plants in Texas. The Department of Justice is participating in this proceeding pur suant to Secion 105c 4 of the Atomic Energy Act. The Department's initial request to the Department of Energy regarding Mr. Scott was set forth in a letter of November 29, 1978 from Assistant Attorney j General John H. Shenef ield (attached) to Mr. David J.

l Ba rdin, Administrator of the Economic Regulatory Administration.

l The Department of Justice believes that Mr. Scott will be essential for the presentation of its case before the NRC. The evidentiary hearing in that proceeding is scheduled to commence May 14, 1980. We would appreciate if the Department of Energy would make Mr. Scott available for a limited period of time in order to prepare and deliver ~

expert testimony on behalf of the Department of Justice in this proceeding. The Department of Justice will make clear to the NRC that Mr. Scott would be testifying as an expert engineer and not as a representative of the Department of Energy.

In view of the very close hearing date of May 14, 1980 we would appreciate receiving a response as soon as possible. I thank you very much for your cooperation in this matter.

Sincerely, -

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. W Donald L. Flexner Deputy Assistant Attorney General )

Antitrust Division l Enclosure cc: Richard We iner '

Lawrence Gollom

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60-415-105 . _

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Mr. Da'vid J.'Bardin, Adninistrator -

Econ 0mic' Regulatory Administration Department of Energy 6001 H. St., N.W.

• l Washington, D.C. 20485

Dear Mr. Bardin:

The Department of Justice would like formall'y to '

request the permission of the Depar,tment of Energy to utilize the services of Mr. William Scott, an engineer in the Fort Worth regional office of the Economic Administration, as an expert witness for the Departnent of Regulatory Justice in an upcoming Nuclear Regulatory Commission proceeding relating to the licensing of several nuclear generating plants in Texas.

All electrical utilities seeking permission to construct and operate nuclear generating plants must,

• pursuant to S105 of the Atomic Energy Act of 1954, as }

amended, submit to an antitrust review by the Justice Depar tmen t. On February 21, 1978, the Depar tment of Justice formally advised the Nuclear Regulatory Commission that it recommended the Commission conduct an antitrust hearing pertaining to the granting of an operating license .

for the South Texas Project. In response to that advice, the Commission scheduled, pursuant to S105c(c)(2), a..

hearing to explore the antitrust problems raised by the Department's advice letter. ,

The proceeding at issue, a formal judicial proceeding, will in all probability .

involve, in addition to the South Texas Project, the other, two nuclear plants planned for Texas, Comanche Peak and

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. ,,T Th'e Departmerit has con'cluded that the present -

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agreement among the major Texas electrical utilities -

seeking these NRC licenses to limit their interconnections (%

to utilities operating exclusively within the state of 'f and to enforce that agreement by immediately Texas, disconnecting from any intrastate utility which would attempt interstate interconnection, is inconsistent with the antJtrust laws. He hope to demonstrate the anticora--

petive nature of this artificial restriction at the .

hearing and thereby persuade the Commission to impose a license condition foreclosing this agreement to disconnect I from any utility which engages in interstate commerce. frustrates ~-

might add that the agreement in question also one of the major policy objectives of the Department of Energy, the fostering of ef fective interconnections

. between electrical utilities. .

Both the FERC and the De'partment of Energy have ,-

intervened in a federal court action challenging a 1977 order of the Texas Public Utility Commission diirect,ing ,

Central Power and Light and West Texas Utilities to 1 disconnect from interstate conmerce.- PERC is also current ~ g. . . .

ly challenging this order in Texas state court. 'If this Y

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order of the state commission is overturned, as seems likely, there would remain no obstacle to Cent.ral Pouer .

and Light and West Texas Utilities reconnecting with their .,

affiliates in Oklahona, other than the intrastate ~ only -

policy which the Department is challenging in the NRC proceeding. .

The current schedule adopted for the South Texas Project proceeding by the NRC's Atomic Safety and Licensing Board, specifies that discovery cust be concluded by .

January 9, 1979. Our best estimate is that the bearing itself will-commence in early riarch and that the entire procecding can be concluded prior to the proposed 1981 operating date for the South Texas Project. .

Iir . Scott's role vould be that of an expert elect ~ric-al engineer assessing enginering data. He vould be a uniquely valuable witness in this matter since he has a

. total coneand of the utility situation in Texas and woeld .

require *very ninimal preparation in order to testify. For  :

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example, he has . already ' read the major engineering studies . . .

that will be involved in the hearing and could utilize his , , ,

inpressive expertise in analyzing these and other eng ineer- _ .

Ing studies and findings that may come into evidence. -

Consequently, valuable time can be conserved in utilizing Mr. . Scott's expertise that would otherwise have to be -

expended in familiarizing another engineer with the -

pertinent facts , ,

He would not ask Mr. Scott to testify as to economic or other non-engineering factors.- Moreover, it uould be ,

cade clear to the Atomic S'afety and Licensing Board that ,

' Mr. Scott would be testifying as an expert engineer, not as a representative of the Department of Energy. .

I hope I have provided you with sufficient in forma tion as to why the Department believes fir. Scott's participation as our engineering witncss would advance the cxercise of its statutory responsibilities in the South Texas Project MRC -

proceeding. If you or your staf f are in need ofany addition-al information please contact Donald Itaplan, the Chief of the Antitrust ~ Division's Energy Section, (724-6410) who'will be able to assist you. ,

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. l Sincerely yours, John H. Shenefield -

i Assistant Attorney General l

- bl. Antitrust Division  !

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cc: 11r. Gerald Pfeffer '

Mr. William Lane -

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Division of Power Supply ~ -

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Washington, D.C. 20461

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Dear Richard:

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i Pursuant to our telephone conversations of April 4 and

' April 10, 1980, I should like to confirm the terms and conditions under which the Department of Energy will allow Mr.

William Scott to appear as an expert witness for the Depart-ment of Justice in the pending proceedings at the NRC regard-ing the South Texas and Comanche Peak projects.

As agreed, Mr. Scott will be unavailable to participate in the NRC proceeding except as follows: ,

Two days for cantinuance of his deposition - between now and June 14, 1980.

Two days for the further preparation of the presentation of his direct testimony - between now and June 14, 1980.

Five days for the presentation of his direct testimony including all voir dire and cross-examination -

between June 14, 1980, and July 15, 1980.

Three days for review of other technical testimony y presented in this hearing and the presentation of i any rebuttal testimony by him. This time commitment includes all cross-examinations of Mr. Scott's N rebuttal . . ( Af ter July 15, 1980) e e

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, ,. 5 :, 4 The Department of Justice will ~ read into the record the - -

following statement, a't-the commencement of this deposition ,' '!h

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testimony and his-;:;testimony at the hearing itself:.' _ , . ..;/

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., Mr. William Scott, in his participation,in the NRC ,,

' o;'j proceedings, is representing himself and any and all -i opinions, conclusions, or statements made by him are solely ,

his own and in no manner represent any policy, conclusions, or statements of the Department of Energy (DOE), the Federal ~j Energy Regulatory Commission (FERC), and its predecessor  ;

agency, the Federal Power Commission (FPC). Mr. Scott is not j authorized nor is he in a position to draw any conclusions or recommendations on behalf of DOE from any studies or analyses

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3 in which he participated for DOE, FERC, or FPC. This is 1 because the Department of Energy has not pre-judged any of

- the issues in this case and is awaiting the outcome of the ongoing FERC study to determine the feasibility and benefits of interconnection across the Texas border. Mr. Scott's participation in the NRC proceeding is solely to testify for the Department of Justice and not as a representative of the Department of Energy.

Finally, the Department of Justice will advise the other parties to this proceeding that Mr. Scott will be unavailable for _

a deposition beyond two days, and will notify the NRC that Mr. -

Scott will be available for direct testimony for not more than .

five days and for rebuttal testimony for not more than three '

days. The Department will notify the NRC of these time contraints at the time Mr. Scott commences his trial testimony in this case. J 2

I trust that this letter accurately reflects the substance of our telephone conversations of April 4 and April 10.

Sincerely yours, j Robert Fabrikant -

Assistant Chief - '

Energy Section [

Antitrust Division a

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