ML19309C020

Response by Public Utils Board of City of Brownsville,Tx, in Opposition to Central & Southwest Corp 800222 Motion for Protective Order,Re Second Set of Interrogatories & Production of Documents.W/Certificate of Svc & 800207 Ltr

ML19309C020
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	03/10/1980
From:	Poirier M SPIEGEL & MCDIARMID, TEXAS, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8004080044
Download: ML19309C020 (12)

Text

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72&T UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY LICENSING BOARD In the Matter of ) .

)

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

)

(South Texas Project, Unit Nos. )

1 and 2) )

)

)

)

In the Matter of )

)

TEXAS UTILITIES GENERATING COMPANY, ) Docke t Nos . 50-445A et al. ) and 50-446A

)

(Comanche Peak Steam Electric )

Station, Unit Nos. 1 and 2) )

)

ANSWER OF THE PUBLIC UTILITIES BOARD OF THE CITY OF BROWNSVILLE, TEXAS, TO THE MOTION FOR PROTECTIVE ORDER OF CENTRAL AND SOUTH WEST CORPORATION FILED FEBRUARY 22, 1980 The Public Utilities Board of the City of Brownsville, Texas ("Brownsville"), pursuant to 10 C.F.R. S2.730(c) and the discussion of the March 7, 1980, prehearing conference in this proceeding, hereby files its Answer to the Objection by Central & South West Corporation ("C&SW") to the Second Set of Interrogatories and Requests for Production of Documents and Motion for Protective Order, which was filed on February 22, 1980.

8 0 04 08 004Lf

C&SW and Central Power & Light Company ("CP&L") have indeed repeatedly agreed to produce documents voluntarily. to Brownsville, as detailed further below. Indeed, at the pre-hearing conference on March 20, 1979, this Board refused to issue subpoenas to C&SW and C&SW Services because of an assurance that documents would be voluntarily produced. (Tr.

182-83) C&SW's production has been intermittent and haphaz-ard. Brownsville's most recent request, in a letter of February 7, 1980, (Attachment A) was prompted by a review of various documents received from CP&L in January, 1980, as well as from other parties, which show on their face that they would be in C&SW files but had not provided to Brownsville in June, 1979. On Februcry 22, 1980, C&SW attor-neys produced two boxes containing eleven file folders, more than two thousand pages, that had not been produced in June, 1979.1/

In view of this, the general objections of C&SW should be considered invalid. Since March of 1979 C&SW counsel has promised that documents would be produced. C&SW should be estopped from objecting that the date for production of docu-ments exceeds by one week the deadline for factual discovery under this Board's Orders in this case, since if C&SW had been diligent in its earlier commitment to document production, Brownsville would have received all the documents it now seeks months ago. Furthermore, C&SW's assurance that it "has already committed to providing these additional documents" (C&SW Motion 2-3) has not proved to be an assurance in the 1/ CP&L attorneys have suggested there may be more.

. . past that the documents will be forthcoming. Accordingly, Brownsville should not be denied the assurances afforded by this Commission's formal discovery procedures.

Requests la and Ib, to which C&SW specifically objects, are:

a. Is the document now in the files of C&SW? If so, please produce all documents in the file in which the document is located.

b. If the document is not in C&SW's files, has it ever been in these files? If so, please produce all documents in the file in which the document is located.

These requests are designed to assure that C&SW finally does a thorough search of its files. Also, it is likely that the missing documents will be concentrated in a few files, so as to reduce any possible burden. In view of C&SW's past performance in discovery, this Board should not grant C&SW's motion as to these requests.

Requests 4 and 5 request all documents referring to the cities or municipal electric systems of Brownsville and San Antonio, respectively. Again, in view of C&SW's past discov-ery request, these documents should not be considered unduly burdensome. C&SW's files appear to contain documents relating to takeovers of Brownsville and San Antonio, and the request is relevant because it will show the extent to which C&SW was kept informed of, or perhaps played an active l role in, anticompetitive activities of CP&L directed at Brownsville and/or San Antonio.

t l

For the above reasons, the Public Utilities Board of the City of Brownsville, Texas, respectfully requests that this Board deny the Motion for protective Order of C&SW, and require C&SW to respond to the. interrogatories and requests -

for document production filed and served on February 20, 1980.

Respectfully submitted, (M(

Marc R. Poirier Attorney for the Public Utilities Board of the City of Brownsville, Texas Law Offices Of:

SPIEGEL & MCDIARMID 2600 Virginia Avenue, N.W.

Suite 312 Washington, D.C. 20037 March 10, 1980

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

)

HOUSTON LIGHTING & POW 2 COMPANY, ) Docket Nos. 50-498A et al. ) and 50-499A

)

(South Texas . );ect, Unit Nos. )

1 and 2) )

)

)

)

In the Matter of )

)

TEXAS UTILITIES GENERATING COMPANY, ) Docket Nos. 50-445A et al. ) and 50-446A

)

(Comanche Peak Steam Electric )

Station, Unit Nos. 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that I have caused copies of the foregoing ANSWER OF THE PUBLIC UTILITIES BOARD OF THE CITY OF BROWNSVILLE, TEXAS, TO THE MOTION FOR PROTECTIVE ORDER OF CENTRAL AND SOUTH WEST CORPORATION FILED FEBRUARY 22, 1980, to be served on the following by deposit in the United States mail, first class, postage paid , this 10th day of March, 1980.

Marshall E. Miller, Chairman Sheldon J. Wolfe, Esquire Atomic Safety & Licensing Board Atomic Safety & Licensing Board Panel Panel Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Michael L. Glaser, Esquire Joseph Rutberg, Esquire 1150 17th Street, N. W. Antitrust Counsel Washington, D. C. 20036 Nuclear Regulatory Commission Washington, D. C. 20555 Roy P. Lessy, Esquire R. Gordon Gooch, Esquire Michael B. Blume, Esquire John P. Mathis, Esquire Nuclear Regulatory Commission Baker & Botts Washington, D. C. 20555 1701 Pennsylvania Avenue, N. W.

l Washington, D. C. 20006

O Jerome Saltzman, Chief Antitrust & Indemnity Group Robert Lowenstein, Esquire Nuclear Regulatory Commission J. A. Bouknight , Jr., Esquire Washing ton , D. C. 20555 William J. Franklin, Esquire Lowenstein, Newman, Reis, Chase R. Stephens, Chief Axelrad & Toll Docketing & Service Section 1025 Connecticut Avnue, N. W.

Office of the Secretary Washington, D. C. 20036 Nuclear Regulatory Commission Washing ton , D. C. 20555 Frederick H. Ritts, Esquire Law Offices of Northcutt Ely Joseph R. Saunders, Esquire Watergate 600 Building Chief, Public Counsel & Washington, D. C. 20037 Legislative Section Antitrust Division Wheatley & Wolleson Department of Justice 1112 Watergate Office Building P. O. Box 14141 2600 Virginia Avenue, N. W.

Washing ton , D. C. 20444 Washington, D. C. 20037 Joseph Gallo, Esquire Rof f Hardy, Chairman and Robert H. Loeffler, Esquire Chief Executive Officer David M. Stahl, Esquire Central Power & Light Company Isham, Lincoln & Beale P. O. Box 2121 1050 17th Street, N. W. Corpus Christi, Texas 78403 Suite 701 Washington, D. C. 20036 G. K. Spruce, General Manager City Public Service Board Susan B. Cyphert, Esquire P. O. Box 1771 Antitrust Division San Antonio, Texas 78201 Department of Justice P. O. Box 14141 Jon C. Wood, Esquire Washington, D.C. 20444 W. Roger Wilson, Esquire Matthews, Nowlin, Macfarlane Joseph Knotts, Esquire & Barrett Nicholas S. Reynolds, Esquire 1500 Alamo National Building Debevoise & Liberman San Antonio, Texas 78205 1200 17th Street, N. W.

Washing ton , D. C. 20036 Perry G. Brittain, President Texas Utilities Generating Co.

Douglas F. John, Esquire 2001 Bryan Tower Akin, Gump, Hauer & Feld Dallas, Texas 75201 1333 New Hampshire Avenue, N. W.

Suite 400 Joseph I. Worsham, Esquire Washington, D. C. 20036 Merlyn D. Sampels, Esquire Spencer C. Relyea, Esquire Worsham, Forsythe & Sampels 2001 Bryan Tower Suite 2500 Dallas, Texas 75201

R. L. Hancock, 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. Robson, 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 Don R. Butler, Esq. Gulf States Utilities Co.

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

& Perry Beaumont, Texas 77074 P. O. Box 1409 Austin, Texas 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 John E. Mathews, Jr., Esquire E. W. Barnett, Esquire Mathews , Osborne , Ehrlich , McNat(

Charles G. Thrash, Jr., Esquire Gobelman & Cobb J. Gregory Copeland, Esquire 1500 American Heritage Life Bldg <

Theodore P. Weiss, Jr., Esquire Jacksonville, Florida 32202 Baker & Botts 3000 One Shell Plaza Robert E. Bathen Houston, Texas 77002 R. W. Beck & Associates P. O. Box 6817 Orlando, Florida 82803

Somervell County Public Library P. O. Box 417 Glen Rose , Texas 76403 Maynard Human, General Manager Western Farmers Electric Coop.

P. O. Box 429 Anadarko, Oklahoma 73005 James E. Monahan Executive Vice President and General Manager Brazos Electric Power Coop., Inc.

P. O. Box 6296 Waco, Texas 76706 Robert M. Rader, Esquire Conner, Moore & Corber 1747 Pennsylvania Avenue , N. W.

Washing ton , D. C. 20006 W. N. Woolsey, Esquire Dyer and Redford 1030 Petroleum Tower Corpus Christi, Texas 78474 Mr. G. Holman King West Texas Utilities Co.

P. O. Box 841 Abilene , Texas 79604

)

dll stt &

Marc R. Poirier Attorney for the Public Utilities.

Board of the City of Brownsville,:

Texas March 10, 1980 l c l

LAW oPPICES CECCGE SPIEG El.

• C. SPIEGEL & MCDIARMID scNNat s. sLAsR D30ERT C. MCDIARMIO ROBERT MARLEY SEAR S AN3RA J. STREdEL 2600 VIRGINIA AVENUE. N.W. THOMAS C. TRAUGER RQZ ERT A. J AS LQN WASHINGTON. O.C. 20037 JO"""'C"*I'^U"#GN^

JAM 25 N. MORWCCQ CYNTH4A S. 5CGORAD ALAN J. ACTH TELEPHONE (2023 333-4500 GARY J. NEWELL FCANCES E. FR ANCIS M ARC R. POIRIER CANIEL 1. D AVIOSCN TELECCPtER (202) 333-2974 wAnyA A,MAnstgg THO M AS N. McHUGH. JR. JC5EPH L. VAN EATON D ANIEL J. GUTTM AN

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$"A7a"RlsTRy3 February 7, 1980 HAND DELIVERY David M. Stahl, Esquire Isham, Lincoln & Beale Suite 701 1050 17th Street, N. W.

Washing ton , D.C. 20036

Dear Mr. Stahl:

O In previous correspondence, we have sought document pro-duction concerning matters involving the relationship between Central Power & Light Company and Brownsville, and between Central & South West Corporation and Brownsville , among other things.1/

In Mr. Poirier's letter of July 5, 1979, the question was raised as to whether C&SW had produced all of the docu-ments germane to Brownsville's subpoena application.

His letter attached copies of some 14 documents, most of which had been obtained from CP&L or from parties obtaining the

• documents from CP&L (documents listed on Attachment A hereto). As the Attachment A list shows, each of these docu-ments was sent by or to a C&SW official directly or as a copy O eddressee. sowever, when Mr. Poirier visited C&SW ee De11es for the purpose of inspecting documents produced by C&SW, under the direction of Messrs. Philip McConnell, Esquire , and James Bruggeman, not one of these documents was included in the mass of documents produced. Many of these involved possible CP&L takeovers of the Brownsville or San Antonio municipal electric system; and others involved questions of FPC jurisdiction related to CP&L's obtaining Falcon hydro power (International Boundary Waters Commission) to which Brownsville had statutory preference.

1/ March 14, 1979: Brownsville's Application For Issuance of Subpoenas for Production by C&SW and affiliates March 20, 1979: NRC Prehearing Conference discusses voluntary compliance June 18-19, 1979: Visit to C& SW, Dallas , by Marc Poirier, Esquire, Brownsville's attorney June 5, 1979: Poirier letter to David Stahl, Esquire August 13, 1979: Poirier letter to Stahl

Mr. Poirier's letter pointed out that files containing these documents had not been produced by C&SW although they are within the ambit of Brownsville's request as embodied in Therefore, it would Schedules for Production of Documents.

appear that C&SW failed to produce for inspection all the documents within the Schedules contained in the subpoenas I have reviewed your reply of August 14, 1979, in my Your letter merely preparation for the upcoming depositions.

states broadly that "no additional documents exist." In my view, your reply is insuf ficient in that there is no explana-tion as to why the files produced did not contain the copies of the correspondence listed in Attachment A to the this 1979).

letter (and attached to Poirier's letter of July 5, .

7, sir?

Accordingly, it is requested that arrangements be made for a second visit by us to C&SW's Dallas headquarters for files containing each of the inspection of each Attachment A documents.

of the In addition, we request permission for inspecticn of all files containing documents relatidg or referring to Brownsville or San Antonio. If these are very numerous, we could start with: (a) files which include reference to either Brownsville or San Antonio in the title, name, or subject index; (b) go on to files which contain a substantial number of references to Brownsville or-San Antonio; and (c) then determine by discussion betweenInattor- this neys the need to go on to inspect additional files. ,

connection, we request a copy of the index and table of con-

" tents and filing instructions covering C&SW and CP&L files, i 1

k[) It would be appreciated if this could be promptly arranged so that Mr. Poirier and I can visit Dallas next week to inspect C&SW's documents in the above categories.

Very truly yours, m<w /

' George Spiegel Attorney for the Public Utilities Board of the City of Brownsville, Texas Robert E. Roundtree, Manager, Brownsville i

cc:

John W. Davidson, Esquire, Attorney for Brownsville All counsel of record GS/vha

ATTACHMENT A DOCUMENTS ATTACHED TO POIRIER' S LETTER OF JULY 5, 1979 TO STAHL

1. 11/16/61 L. C. Hill (CP&L) to H. Dewer, blind copy to J. S. Osborne (C&SW); subject: relating to possible San Antonio takeover.

2. 11/10/61 Hill (CP&L) to Osborne (C&SW); subject:

Possible San Antonio Takeover.

3. 9/13/67 R. McClanahan (Consultant to CP&L and C&SW) to J. M. Wilson (CP&L), copies to S. B. Phillips and F. J. Herr (C&SW): subject: Takeover By Lease of Brownsville Municipal System

[ 4. 12/6/66 R. L. Johnson (consultant to CP&L and C&SW) to S. B. Phillips (C&SW); subject: Study For Price For Takeover Of Brownsville Municipal System

5. 2/7/66 E. S. Joslin (CP&L) to R. B. Phillips, (C&SW) subject: Takeover of Brownsville Municipal System

6. 1/31/66 R. B. Phillips (C&SW) to E. S. Joslin (CP&L) subject: Price For Takeover Of Brownsville Municipal System .

7. 5/9/60 William Bates (CP&L) to R. Garzic (attorneys),

copy to J. S. Osborne; subject: affect of creation of Brownsville of Public Utilties Board on CP&L Service Order I() 8. 2/16/60 J. M. Wilson (CP&L) Osborne to R. D. Stevenson (C&SW); subject:

(attorney), copy to J. S.

Preventing Creation Of Brownsville Public Utilities Board

9. 2/8/60 J. L. Bates (CP&L) to J. S. Osborne (C&SW) subject:

Effect Of Creation Of Brownsville Public Utilities Board On CP&L Service area M. Wilson (CP&L) to George B. Bailey

10. 11/8/57 J. Osborne (C&SW); subject:

(attorney), copy to J. S.

Acquisition Of Brownsville Municipal Electric System

11. 10/26/62 J. L. Bates (CP&L) to J. S. Osborne (C&SW);

subject: Refers To Avoiding FPC Jurisdiction In  ;

l Contract For Purchase Of Falcon Hydroelectric  ;

i Power l

1 1

12. 9/28/54 J. L. Bates (CP&L) to Leonardo de Lozanne (Comision Federal de Electricidad) blind copy to J. S. Osborne (C&SW); subject: Purchase of Mexican Share of Falcon Hydroelectric Power

13. 8/26/77 R. W. Wilson (C&SW) to Merle Borchelt (CP&L);

subject: Planning for C&SW System, Including Joint Generation And Off-system Sales

14. 5/19/76 S. B. Phillips (C&SW), F. J. Herr (C&SW) address to the New York Society of Security Analysts, discussing fuel supply and advantages of interstate interconnection C

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