ML19322E202

Response in Opposition to DOJ & NRC 800228 Joint Motion Proposing Acceleration of Schedule Re Protection of Settlement Discussions.Urges Adherence to Normal 10-day Period or Grant of Oral Argument.Certificate of Svc Encl

ML19322E202
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	03/03/1980
From:	Ahearn C DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8003260277
Download: ML19322E202 (8)

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UNITED STATES OF AMERICA

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1 NUCLEAR REGULATORY COMMISSION h \0 Vh2 Before the Atomic Safety and Licensing Board gge In the Matter of: )

)

HOUSTON LIGHTING & POWER ) Docket Nos. 50-498A COMPANY, _e t _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) )

OPPOSITION OF TEXAS UTILITIES GENERATING COMPANY TO THE ACCELERATION OF SCHEDULE PROPOSED IN THE JOINT MOTION OF THE DEPARTMENT OF JUSTICE AND THE NUCLEAR REGULATORY COMMISSION STAFF 1

On February 28, 1980, the Department of Justice and the Nuclear Regulatory Commission Staff ("Movants") filed a

" Joint Motion ... for Modification of the Board's Order Regarding Protection of Settlement Discussions and for an Order to Compel Production of Certain Documents and Testimony."

They requested this Board to order that all responses to this Motion be hand-delivered to the Board by March 3, 1980, and that a conference call be initiated on March 4, 1980, to resolve the issues raised by the Motion.

Texas Utilities Generating Company ("TUGCO") strongly opposes the proposed schedule and moreover raises the threshold question of whether the Motion may even be entertained. The rulings which Movants seek to have changed were reaffirmed in June 1979 after an earlier attempt by the Department to obtain 8 00S260 2l9 k

reconsideration and modification. Any further reconsideration is extraordinary relief and untimely in the extreme, especially in view of the reliance of the parties on the prior rulings, the length of time Movants have been aware of the matters involved, and the timing of their presentation to the Board. However, it the Board should decide to entertain the Motion, TUGCO requests that it be granted the normal time for response contained in 10 C.F.R. 52.730(c) or that the period for response be shortened I

to no earlier than March 7, 1980. Counsel for Central and South West Corporation has authorized me to state that they join in the request for a reasonable amount of time in which to file their response should the Board entertain this Motion. TUGCO also respectfully requests that pursuant to 10 C.F.R. 52.730 (d),

the parties be granted the opportunity for oral argument before the full Board, and not merely a conference call, if the Board should decide to entertain the Motion.

Failure to afford a reasonable time for response and to afford the opportunity for oral argument before the full Board would be extremely prejudicial to the settlement of these and related matters and unfair in view of the reliance by the parties on the Board's rulings. The settlement discussions and documents generated pursuant thereto are of paramount importance to all parties to this proceeding for obvious reasons.. If the confidentiality of these discussions and documents were compromised, it would eliminate any possibility of settling this proceeding, or facets thereof, short of a l

l

l complete Board hearing. It is thus simply a matter of elementary due process that counsel for TUGCO and the other parties be afforded a sufficient amount of time to thoroughly review the issues raised by the Movants' Motion and to adequately for-mulate their responses. The Motion raises several important issues that must be addressed, including, but not limited to, the effect of the prior Board Orders on the protection from discovery of settlement matters, the issue of the reliance of the various parties on these Orders as a basis for entering into these discussions, and the limitations on retroactive

-changes in rulings relied upon by the parties.

Given the extreme importance that a breach of the confi-dentiality of the settlement matters could have, the Movants have offered no justification for the extremely abbreviated reply schedule they ask this Board to adopt. As indicated in the introduction to the Joint Motion and by the dates of the

! various depositions referred to, the Movants have been well aware of the position of TUGCO and the other parties engaged in settlement discussions regarding the confidentiality of those discussions since the early stages of these proceedings.

Absolutely nothing has changed in the past few months that can be said to have just now brought this matter to their attention.

Since they have chosen to wait until this late date to raise a matter of which they have long been aware, and since they have failed to offer any reasonable excuse for waiting so long, they should not be rewarded for their procrastination by forcing

TUGCO and the other parties into an unreasonable and inadequate schedule for response.

The Movants' hand-delivery of their Motion and various other papers occurred sometime after the close of business, and the close of the offices of TUGCO's counsel, on February 28, 1980, and counsel for TUGCO thus did not learn of this Motion until the morning of the 29th. The proposed reply schedule would thus allow counsel for the various parties a maximum of two busi-ness days in which to respond to the Motion, a patently unreasonable amount of time. In addition, TUGCO's lead counsel has irrevocable commitments to discovery matters in this proceeding throughout the period of the proposed response schedule and will thus be unable to work on a reply during that period. It seems only fair to allow TUGCO and the other parties a reasonable amount of time in which to respond to this belated attempt to change the rules of the game.

For the foregoing reasons, TUGCO respectfully requests the Board to deny the Movants' Motion as improper, or, if it should decide to consider the Motion, to grant the parties the opportunity for ora.1 argument. TUGCO also respectfully requests that if the Board decides to entertain the Motion, that it adhere to the normal 10-day period for responses contained in 10 C.F.R. 52.730(c) , or that it shorten the reply period to no earlier than March 7, 1980.

., J Respectfully submitted,

[.1 hatk C. Dennis Ahehrn u -^

DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202) 857-9800 Counsel for Texas Utilities Generating Company Date: March 3, 1980 I

l i

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION  ;

In the Matter of )

)

EOUSTON LIGHTING AND POWER CO., ) Docket Nos. 50-498A e_t, al. ) 50-499A

)

(South Texas Project, Units )

1 and 2) )

)

TEXAS UTILITIES GENERATING ) Docket Nos. 50-445A COMPANY, _e t _al . ) 50-446A

)

(Comanche Peak Steam Electric )

Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " opposition of Texas Utilities Generating Company To The Acceleration of Schedule Proposed In The Joint Motion of the Department of Justice and the Nuclear Regulatory Commission Staff" in the above captioned matters, were served upon the following persons by deposit in the United States mail, first class postage prepaid this 3rd day of March, 1980, or by hand delivery to those dosignated by an asterisk.

A Marshall E. Miller, Esq. Mr. Jerome D. Saltzman U.S. Nuclear Regulatory Chief, Antitrust and Commission Indemnity Group Washington, D.C. 20555 Nuclear Reactor Regulation U.S. Nuclear Regulatory 5 Michael L. Glaser, Esq. Commission 1150 17th Street, N.W. Washington, D.C. 20555 Washington,_D.C. 20036 J. Irion Worsham, Esq.

4 Sheldon J. Wolfe, Esq. Merlyn D. Sampels, Esq.

U.S. Nuclear Regulatory Spencer C. Relyea, Esq.

Commission Worsham, Forsythe & Sampels Washington, D.C. 20555 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 Atomic Safety and Licensing Appeal Board Panel Jon C. Wood, Esq.

U.S. Nuclear Regulatory W. Roger Wilson, Esq.

Commission Matthews, Nowlin, Macfarlane &

Washington, D.C. 20555 Barrett

1500 Alamo National Building

Chase R. Stephens San Antonio, Texas 78205 l

Docketing and Service Branch U.S. Nuclear Regulatory Dick Terrell Brown, Esq.

Commission 800 Milam Building Washington, D.C. 20555 San Antonio, Texas 78205

Charles G. Thrash, Jr., Esq. Don R. Butler, Esq.

E.W. Barnett, Esq. Sneed, Vine, Wilkerson, Theodore F. Weiss, Esq. Selman & Perry J. Gregory Copeland, Esq. P.O. Box 1409 Baker & Botts Austin, Texas 78767 3000 One Shell Plaza Houston, Texas 77002 Jerry L. Harris, Esq.

Steven R. Hunsicker, Esq. Richard C. Balough, Esq.

R.Gordon Gooch, Esq. City of Austin John P. Mathis, Esq. P.O. Box 1088 Baker & Botts Austin, Texas 78767 1701 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 Robert Lowenstein, Esq.

J.A. Bouknight, Jr., Esq.

Roy P. Lessy, Jr., Esq. William J. Franklin, Esq.

Michael B. Blume, Esq. Douglas G. Green, Esq.

Fredric D. Chanania, Esq. Lowenstein, Newman, Reis, Ann P. Hodgdon, Esq. Axeirad and Toll U.S. Nuclear Regulatory 1025 Connecticut Avenue, N.W.

Commission Washington, D.C. 20036 Washington, D.C. 20555 John W. Davidson, Esq.

Roff Hardy Sawtelle, Goode, Davidson &

Chairman and Chief Executive Tioilo Officer 1100 San Antonio Savings Bldg.

Central Power and Light Company San Antonio, Texas 78205 P.O. Box 2121 Corpus Christi, Texas 78403 Douglas F. John, Esq.

i Akin, Gump, Haver & Feld 4

Mr. Perry G. Brittain 1333 New Hampshire Ave., N.W.

President Suite 400 Texas Utilities Generating Washington, D.C. 20036 Company 2001 Bryan Tower Bill D. St. Clair, Esq.

Dallas, Texas 75201 Morgan Hunter, Esq.

McGinnis, Lockridge & Kilgore R.L. Hancock, Director Fifth Floor, Texas State City of Austin Electric Utility Bank Building P.O. Box 1086 900 Congress Avenue Austin, Texas 78767 Austin, Texas 78701 G.W. Oprea, Jr.

Executive Vice President Houston Lighting & Power David M. Stahl, Esq.

Company Isham, Lincoln & Beale P.O. Box 1700 1050 17th Street, N.W.

Houston, Texas 77001 Suite 701 Washington, D.C. 20036 Susan B. Cyphert, Esq.

Frederick H. Parmenter, Esq. l David A. Dopsovic, Esq.  ;

Nancy Luque, Esq.

U.S. Department of Justice l Antitrust Division l P.O. Box 14141 Washington, D.C. 20044

hg Sarah Welling, Esq.

Michael I. Miller, Esq. Kevin B. Pratt, Esq.

James A. Carney , Esq. Attorney General's Office Isham, Lincoln & Beale State of Texas One First National Plaza P.O. Box 12548 Suite 4200 Austin, Texas 78711 Chicago, Illinois 60603 Frederick H. Ritts, Esq.

Don H. Davidson William H. Burchette, Esq.

City Manager Northcutt Ely City of Austin Watergate 600 Building P.O. Box 1088 Washington, D.C. 20037 Austin, Texas 78767 W.S. Robson General Manager South Texas Electric Cooperative, Inc.

Route 6, Building 102 (? > " " m Victoria Regional Airport C. Dennis Ahearn Victoria, Texas 77901 Robert C. McDiarmid, Esq.

Robert Jablon, Esq.

Marc Poirier, Esq.

2600 Virginia Avenue, N.W.

Washington, D.C. 20037 W.N. Woolsey, Esq.

Dyer and Redford 1030 Petroleum Tower Corpus Christi, Texas 78474 Donald M. Clements Gulf States Utilities Company Post Office Box 2951 Beaumont, Texas 77704 Marc J. Wetterhahn, Esq.

Robert M. Rader, Esq.

Conner, Moore & Corber 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 Mr. William C. Price Central Power & Light Co.

P.O. Box 2121 Corpus Christi, Texas 78403 Mr. G. Holman King West Texas Utilities Co.

, P.O. Box 841 l Abilene, Texas 79604 l