ML19309G123

Response in Opposition to Public Utils Board of City of Brownsville,Tx Motion to File Re Roundtree 800327 Affidavit. Affidavit Consistent Representation But Does Not Support Issue of Consummated Settlement.W/Certificate of Svc

ML19309G123
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	04/09/1980
From:	Stahl D CENTRAL & SOUTH WEST CORP., ISHAM, LINCOLN & BEALE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8005050006
Download: ML19309G123 (8)

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80050 UNITED STATES OF AMERICA 50 cro 4 NUCLEAR REGULATORY COMMISSION [f BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of: S S

HOUSTON LIGHTING & POWER S NRC DOCKET NOS. 50-498A 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, S Unit Nos. 1 and 2) S RESPONSE OF CENTRAL AND SOUTH WEST COMPANIES TO MOTION FOR LEAVE TO FILE AFFIDAVIT BY BROWNSVILLE AS AMICUS CURIAE Pursuant to the Appeal Board's Order of April 2, 1980, the Central and South West Corporation (CSW) , on behalf of itself and its subsidiaries, hereby submits its Response to the March 31, 1980 Motion for Leave to File Affidavit by Brownsville as Amicus Curiae ("the Motion") .

The Motion, filed on behalf of the Public Utilities Board of the City of Brownsville, Texas (" Brownsville ") , indicates that it and the affidavit appended thereto were filed as a supplement to the oral argument which was held before the Appeal Board on March 27, 1980 on the petitions for certification filed on behalf of CSW, Houston Lighting & Power Co. ("HLP")

and the Texas Utilities Generating Co. ("TUGCO") (" petitioners")

on the issue whether documents prepared solely in connection with settlement discussions should continue to be protected from discovery.

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. 1 CSW believes that the Board should not accept the l

affidavit for filing. The reason for this is not any irregularity in the manner in which this affidavit was brought to the Appeal Board's attention, but rather because the affidavit does not support the central matter alleged in the Motion, namely that HLP, CSW and TUGCO had already " consummated a negotiated settlement" (Motion, p. 2), and that the Appeal Board should consider this " fact" in determining whether the arguments advanced in favor of the settlement document privilege "need be given any substantial weight" (Motion,

p. 4). Instead, the contents of both the Motion and the affidavit are in complete accord with the petitioners' representations in their pleadings and at oral argument.

The affidavit indicates that Mr. Robert E. Roundtree, Brownsville's General Manager, was informed of the status of the negotiations on March 25. The affidavit states that he was told that the parties to the negotiations had reached agreement on the construction of two direct current inter-connections, and that interested federal and state regulatory bodies had reacted favorably to the anticipated settlement.

Paragraphs 2 and 3 of the motion indicate that it is on the basis of these pieces of information that Brownsville suspects that the parties have already reached agreement as to all matters of substance. However, other statements in the affidavit itself indicate that settlement is by no means a foregone conclusion. Mr. Roundtree was told, according to the affidavit that, while the parties were close to agreement, L

! they did not expect to reach complete settlement until early April. Thus, it appears that even as of March 25, there were still to be resolved issues of sufficient importance to delay the settlement, and that both Mr. Roundtree and his counsel Mr. Spiegel were aware of that fact, both on March 25 and on March 27 when Mr. Spiegel appeared before the Appeal Board.

In sum, the affidavit is completely consistent with the petitioners' representation that the parties are on the brink of settlement and that while the petitioners have made substantial progress and have resolved a number of issues which have divided them in the past, critical details remain to be worked out. Brownsville's submission only affirms that the settlement negotiations are at an extremely sensitive stage and should not be unnecessarily constrained. CSW can affirm that as of this date, negotiations and discussions are

continuing and that no overall settlement has yet been concluded.

Brownsville has not been ignored in the settlement process. CSW has been negotiating matters of common interest with Brownsville and was under the impression that these negotiations were in furtherance of a common desire to settle issues pending before the Licensing Board. CSW does not believe .:.t is either appropriate or desirable to burden the Appeal Board with a detailed description of the CSW -

Brownsville negotiations and the concessions which have been made to Brownsville. CSW raises the matter only to correct a misimpression which Brownsville and its counsel have 3-n

attempted to create, that petitioners have completely ignored the interests of Brownsville and other interested parties to serve their own interests. This is contrary to the facts and is not an inference that can fairly be drawn from the fact that petitioners first discussed settlement among themselves.

WHEREFORE, CSW opposes the entry of an Order accepting the $ffidavit of Robert E. Roundtree, dated March 27, 1980, into the recc. This proceeding.

Respectfully submitted, ISHAM, LINCOLN & BEALE

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Attorneys for THE CENTRAL AND SOUTH WEST COMPANIES Suite 325 1120 Connecticut Avenue, N.W.

Washington, D.C. 20036 202/833-9730 One First National Plaza Chicago, Illinois 60603 312/558-7500 Dated: April 9, 1980 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: S S

HOUSTON LIGHTING & POWER S NRC DOCKET NOS. 50-498A 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, Unit S 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, S 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 Companies to Motion for Leave to File Affidavit By Brownsville as Amicus Curiae were served upon the following listed persons  ;

either by hand delivery or by deposit in the United States mail, first class postage prepaid on this 9th day of April, 1980.

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David M. Stahl l

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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. 1 U.S. Nuclear Regulatory Commission P. O. Box 2121 Washington, D.C. 20555 Corpus Christi, Texas 78403 l Atomic Safety and Licensing G. K. Spruce, Gen. Manager i Appeal Board Panel City Public Service Board i 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. l Washington, D. C. 20555 2001 Bryan Tower j Dallas, Texas 75201 .

Jerome D. Saltzman 1 Chief, Antitrust and Indemnity Group R. L. Hancock, Director  !

U.S. Nuclear Regulatory Commission City of Austin Electric Utility I 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 & Sampela 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

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1500 Alamo National Building One First National Plaza San Antonio, Texas 78205 Chicago, Illinois 60603 Morgan Hunter, Esq.

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

Bill Franklin, Esq. McGinnin, Lockridge & Kilgore Lowenstein, Newman, Reis, Axelrad Fifth Floor, Texas State

& Toll Bank Building 1025 Connecticut Avenue, N. W. 900 Congress 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 l

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Jerry L. Harris, Esq. W. S. Robson Richard C. Balough, Esq. General Manager City of Austin South Texas Electric l 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. Poiri.er Speigel & M Jiarmid 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.

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

Gulf States Utilities Company Ronald Clark, Esq.

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

Washington, D.C. 20530 l l 1

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

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

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