ML19309C255

Response in Opposition to DOJ & NRC Joint Motion for Mod of ASLB Order Re Settlement Discussions & for Order to Compel Production of Documents.Nrc Policy Favoring Settlement Is Designed to Protect Sources Involved.W/Certificate of Svc

ML19309C255
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	03/06/1980
From:	CENTRAL & SOUTH WEST CORP., ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8004080360
Download: ML19309C255 (11)

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'N UNITED STATES OF AMERICA kk NUCLEAR REGULATORY COMMISSION - I'N g ~cmj y k-

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• EGMh ' 7 Before the Atomic Safety and Licensing BoaC5 g,p' In the Matter of )

HOUSTON LIGHTING & POWER )

COMPANY, et al. (South )

Texas Project, Units 1 ) Docket Nos. 50-498A and 2) ) 50-499A

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TEXAS UTILITIES GENERATING ) i COMPANY, et al. (Comanche } Docket Nos. 50-445A Peak Stream Electric ) 50-446A ,

Station, Units 1 and 2) )

RESPONSE OF CENTRAL AND SOUTH WEST CORPORATION, ET AL., TO JOINT MOTION OF THE DEPARTMENT OF JUSTICE AND THE NUCLEAR REGULATORY COMMISSION STAFF FOR MODIFICATION OF THE BOARD 'S ORDER REGARDING PROTECTION OF SETTLEMENT DISCUSSIONS AND THE JOINT MOTION FOR AN ORDER TO COMPEL PRODUCTION OF CERTAIN DOCUMENTS AND TESTIMONY The Department of Justice and the Nuclear Regula-tory Commission Staff have filed a Joint Motion (the " Joint Motion") which seeks to compel production of and testimony about certain documents in the possession of Texas Utilities Generating Company ("TUGCO") and Houston Lighting & Power  !

Company ("HL&P") which assess the technical feasibility  ;

l and/or cost of interconnections between the Texas Intercon-nected System ( " TIS " ) and the Southwest Power Pool ("SWPP")

These documents have been withheld on the basis of an Order l

i entered by the Atomic Safety and Licensing Board (" Board")

l on April 16, 1979.

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Central and South West Corporation, Central Power and Light Company, West Texas Utilities Company, Southwestern Electric Power Company and Public Service Company of Oklahoma I

(collectively, "CSW " ) hereby file their response to the Joint Motion. The policy of encouraging settlement is a well-recognized policy designed to conserve the resources of everyone involved, including the tribunal before which the conflict is to be litigated.1/ Full and candid appraisal of each litigant's respective strengths and weaknesses is necessary for a viable settlement process; these appraisals would not be made if the parties believed they would be subject to discovery. Consequently the Board properly ruled that documents generated solely as a part of settlement negotiations and testimony related thereto should be privileged and protected from discovery so as to facilitate 3 settlement negotiations among the parties.

1/ The Nuclear Regulatory Commission's Rules of Practice recognize the desirability of encouraging settlement of contested proceedings:

52.759 Settlement in initial licensing proceedings.

The Commission recognizes that the public interest may be served through settlement of particular issues in a proceeding or the entire proceeding. Therefore, to the extent that it is not inconsistent with hearing requirements in section 189 of the Act (42 U.S.C.

2239), the fair and reasonable settlement of contested initial licensing proceedings is encouraged. It is expected that the presiding officer and all of the parties to those proceedings will take appropriate steps to carry out this purpose.

10 C.F.R. 52.759.

t Nothing has occurred since the Board entered its Order that undermines the rationale underlying or the just-ification for that Order. Consequently to the extent that the Joint Motion seeks the production of documents protected by that Order, the Joint Motion should be denied.

For the foregoing reasons, CSU opposes the Joint Motion.d!

Respectfully submitted, ISHAM, LINCOLN & BEALE By Attorneys for Central and South West Corporation, Central Power and Light Company, West Texas Utilities Company, Southwestern Electric Power Company and Public Service Company of Oklahoma Isham, Lincoln & Beale One First National Plaza Suite 4200 Chicago, Illinois 60603 (312) 558-7500 2/ There is, however, one limitation inherent in the settlement privilege: a party asserting the privilege and withholding documents as non-discoverable should thereafter be foreclosed from introducing those documents at the hearing.

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E7 0

Was it Mr. Sampols?

1

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2 A.

It would have been probably Mr. Sampels 3 if anybody.

4 0 And then I take it that your knowledge 5

of the lack of response by West Texas Utilities 6

is based on reports from Mr. Sampels or the lI 7

attorney, the other attorney who made the offer; (~

i' 8 is that correct?  !

9 A.

Well, based on ny assumption that if 10 there had been any response of any kind to anyone, 11 I would have known about it and I did not know 12 about it.

13 0 Well, Mr. Hulsey, is there any capacity 14 in Comanche Peak available today?

MR. SLICKER: Object to the form of 15 16 the question and I instruct the witness not to answer the question.

This falls clearly within 17 18 the settlement parameter of the board and in 19 answer to that question is beyond the pail of 20 discovery in this case by the Boar.d's order and I 21 instruct the witness not to answer on that basis.

22 Q. I'm talking apart from any settlement, .

23 is there capacity available out of Comanche Peak , .

24 today?

MR. SLICKED: My instruction still 25 ATTACHMENT pAGE 1 i

Mi 1 stands, Mr. Hulsey.

2 MR. BLUME: May I ask what the 3 availability of capacity from comanche Peak has 4 to do with settlement aside from any offers that -

5 are made?

MR. SLICKER: Everything. My 6

7 instruction is clear and it's unequivocal and I 8 instruct the witness not to answer the question.

MR. BLUME: Does this go to any 9

10 availability from Comanche Peak prior to the end 11 of the District Court proceeding?

12 MR. SLICKER: It goes to an answer 13 to Mr. Miller's question. The answer to the 14 question is privileged under the settlement 15 privilege, specifically ruled upon three times by 1G the board and it's clearly covered by that order.

17 MR. MILLER: I'll state for the 18 record that I think this whole settlenant gamut 19 has just been absolutely abused by TU and Houston 20 in these proceedings to thwart legitimate 21 discovery and at some appropriate time, we are 22 going to move to reopen all of these depositions j i

23 and get to the bottom of this. l 24 MR. SLICKER: Well, you can state l l

25 anything you want to on the record, but the Board l

l ATTACIL'4ENT PAGE 2 I

I has been very clear with respect to its respect 2 of the parties attempting to negotiate a 3

settlenent with regard to the issues in this and 4 related cases.

MR. MILLER: Well, Mr. Slicker, 5

6 when I ask a question that excludes --

7 MR. SLICKER: You can let me finish.

8 MR. MILLER: That excludes 9

settlement negotiations, that is clearly outside 10 the scope of any Board order. ,

MR. SLICKER: I disagree with you 11 and my instruction still stands. The Board has 12 13 been very clear and I think the law supports very 14 loudly the proposition that settlement 15 discussions are beyond the pail of discovery 16 because as a general matter, you cannot negotiate 17 in a fish bowl and while I recognize there are 18 lots of things that you don't like about these 19 proceedings, not the least of which the results 20 of every single one of them so far and I ,

i 21 recognize -the attempts by the CSW systen to 22 violate its agreement with respect to l

23 confidentiality and to seek to discover matters j I

24 that relate to settlement discussions for l whatever purpose you want to. My instruction to 25 .

1 ATTACHMENT PAGE 3'

- 2 ---- . . m m_u_en n u_,r- n r u ciaTJzunu Jos.cq l

1 the witness in this question is clear and'it will

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2 stand.

3 MR. MILLER: Well, if you-think  ;:

4 you've got a breach by Central & Southwest of any 5 agreement, you better give me the specifics so we 6 can talk about it and if not, you can keep those 7 gratuitous comments to yourself.

8 O. (BY MR. MILL ER) : Now, Mr. Hulsey, I'd 9 like you to look at a document that's previously 10 been marked as Austin Deposition Exhibit 9. It's a letter from Mr. Campbell to Mr. J. D. Nichols, 11 12 Tex-La Electric Cooperative. And I ask you 13 whether you ever saw that letter on or about the 14 date it bears?

15 A. I can't say that I saw this particular 15 letter, but I generally many familiar with the 17 subject matter.

18 0 You were aware of the request for 19 information regarding Comanche Peak nuclear plant

! 20 from, Tex-La; is that correct?

21 A. Yes.

i 22 Q. So that as of February, 1978, there was,  ;

23 in fact, capacity available in the Comanche Peak i

24 project; is that correct? l 25 A. Well, I can only testify what the letter

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l ATTACHMENT PAGE 4  ;

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

HOUSTON LIGHTING & POWER NRC DOCKET NOS. 50-498A S

COMPANY, THE CITY OF SAN S 50-499A ANTONIO, THE CITY OF AUSTIN,5 and CENTRAL POWER AND LIGHT S COMPANY S (South Texas Project, S Unit Nos. 1 and 2) S S

TEXAS UTILITIES GENERATING S NRC DOCKET NOS. 50-445A COMPANY, et al. S 50-446A (Comanche Peak Steam S Electric Station, 5 Unit Nos. 1 and 2) S CERTIFICATE OF SERVICE I, David M. Stahl, hereby certify that copies of the foregoing Response of Central and South West Corporation, et al. to the Joint Motion of the Department of Justice and the Nuclear Regulatory Commission Staff for Modification of the Board's Order Regarding Protection of Settlement Discussions and the Board's Motion for an Order to Compel Production of Certain Documents and Testimony were served upon the following listed persons by deposit in the United States mail, first class postage prepaid on this 6th day of March, 1980.

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David M. Stahl i

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MAILING LIST Marshall E. Miller, Esq. Roy P. Lessy, Jr., Esq.

U.S. Nuclear Regulatory Commission Michael B. Blume, Esq.

Washington, D.C. 20555 U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555 Michael L. Glaser, Esq.

1150 17th Street, N. W. William C. Price -

Washington, D. C. 20036 Chairman and Chief Executive Officer Sheldon J. Wolfe, Esq. Central Power & Light Co.

U.S. Nuclear Regulatory Commission P. O. Box 2121 Washingte1, D.C. 20555 Corpus Christi, Texas 78403 Atomic Safety and Licensing G. K. Spruce, Gen. Manager Appeal Board Panel City Public Service Board U.S. Nuclear Regulatory Commission P. O. Box 1771 Washington, D. C. 20555 San Antonio, Texas 78203 Chase R. Stephens (20) Mr. Perry G. Brittain Docketing and Service Section President U.S. Nuclear Regulatory Commission Texas Utilities Generating Co.

Washington, D. C. 20555 2001 Bryan Tower Dallas, Texas 75201 Jerome D. Saltzman Chief, Antitrust and Indemnity Group R. L. Hancock, Director U.S. Nuclear Regulatory Commission City of Austin Electric Utility Washington, D.C. 20555 P. O. Box 1088 Austin, Texas 78767 J. Irion Worsham, Esq.

Merlyn D. Sampels, Esq. G. W. Oprea, Jr.

Spencer C. Relyea, Esq. Executive Vice President Worsham, Forsythe & Sampels Houston Lighting & Power Co.

2001 Bryan Tower, Suite 2500 P. O. Box 1700 Dallas, Texas 75201 Houston, Texas 77001 Jon C. Wood, Esq. Michael I. Miller, Esq.

W. Roger Wilson, Esq. James A. Carney, Esq.

Matthews;.Nowlin, Macfarlane & Barrett Isham, Lincoln & Beale 1500 Alamo National Building One First National Plaza San Antonio, Texas 78205 Chicago, Illinois 60603 Morgan Hunter, Esq.

l J. A. Bouknight, Esq. Bill D. St. Clair, Esq.

I Bill Franklin, Esq. McGinnin, Lockridge & Kilgore Lowenstein, Newman, Reis, Axelrad Fifth Floor, Texas State i & Toll Bank Building 1025 Connecticut Avenue, N. W. 900 Congrecs Avenue Washington,.D. C. 20036 Austin, Texas 78701 R. Gordon Gooch, Esq. Don R. Butler, Esq.

Baker & Botts 1225 Southwest Tower 1701 Pennsylvania Avenue, N. W. Austin, Texas 78701 Washington, D. C. 20006

Jerry L. Harris, Esq. W. S. Robson Richard C. Balough, Esq. General Manager City of Austin South Texas Electric P. O. Box 1088 Cooperative, Inc.

Austin, Texas 78767 Route 6, Building 102 Victoria Regional Airport Joseph B. Knotts, Jr., Esq. Victoria, Texas 77901 Nicholas S. Reynolds, Esq.

Debevoise & Liberman Robert C. McDiarmid, Esq.

1200 17th Street, N. W. Robert A. Jablon, Esq.

Washington, D. C. 20036 Marc R. Poirier Speigel & McDiarmid Don H. Davidson 2600 Virginia Avenue, N.W.

City Manager Washington, D. C. 20036  ;

City of Austin P. O. Box 1088 Kevin B. Pratt Austin, Texas 78767 Texas Attorney General's Office P. O. Box 12548 Jay Galt, Esq. Austin, Texas 78711 Looney, Nichols, Johnson & Hays 219 Couch Drive William H. Burchette, Esq.

Oklahoma City, Oklahoma 73102 Frederic H. Ritts, Esq.

Law Offices of Northcutt Ely Knoland J. Plucknett Watergate Building Executive Director Washington, D. C. 20037 Committee on Power for the Southwest, Inc. Wheatley & Wolleson <

5541 East Skelly Drive 1112 Watergate Office Bldg.

Tulsa, Oklahoma 74135 2600 Virginia Avenue, N.W.

Washington, D. C. 20037 John W. Davidson, Esq.

Sawtelle, Goods, Davidson & Tiolo Joseph Rutberg, Esq.

1100 San Antonio Savings Building Antitrust Counsel San Antonio, Texas 78205 Counsel for NRC Staff U.S. NRC Washington, D. C. 20555 Douglas F. John, Esq. Linda L. Aaker, Esq.

Akin, Gump, Hauer & Feld Asst. Attorney General 1333 New Hampshire Avenue, N. W. P. O. Box 12548 Suite 400 Capitol Station Washington, D. C. 20036 Austin, Texas 78711 W. N. Woolsey, Esq. Robert M. Rader Dyer and Redford Conner, Moore & Corber 1030 Petroleum Tower 1747 Pennsylvania Ave., N.W.

i Corpus Christi, Texas 78474 Washington, D.C. 20006 i Donald Clements Melvin G. Berger, Esq.

Gulf States Utilities Company Ronald Clark, Esq.

P. O. Box 2951 Antitrust Division, Energy i Beaumont, Texas 77704 Section Room 8308 l 414 lith Street, N.W. ,

I Washington, D.C. 20530 1

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Charles G. Thrash, Jr., Esq. Joseph J. Saunders, Esq.

E. W. Barnett, Esq. Chief, Public Counsel &

Theodore F. Weiss, Esq. Legislative Section J. Gregory Copeland, Esq. Antitrust Section Baker & Botts U.S. Department of Justice 3000 One Shell Plaza P. O. Box 14141 Houston, TX 77002 Washington, D.C. 20044 Donald A. Kaplan, Chief Robert E. Bathen Robert Fabrikant, Asst. Chief R. W. Beck & Associates Energy Section P. O. Box 6817 Antitrust Division Orlando, Florida 82853 U.S. Department of Justice Washington, D.C. 20530 Mr. G. Holman King West Texas Utilities Company Nancy Luque P. O. Box 841 Susan B. Cyphert Abilene, TX 79604 Ronald H. Clark Frederick H. Parmenter John Carney, Esq.

Antitrust Division Weil, Gotshal & Manges Energy Section 767 Fifth Avenue U. S. Department of Justice New York, NY 10022 Room 8413 414 lith Street, N.W.

Washington, D.C. 20530

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