ML19323B729
| ML19323B729 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak  |
| Issue date: | 04/24/1980 |
| From: | Oneil R MILLER, BALIS & O'NEIL, SOUTHWEST TEXAS ELECTRIC COOPERATIVE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8005140147 | |
| Download: ML19323B729 (6) | |
Text
P 8005140 /YY M
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
)
)
HOUSTON LIGHTING &
)
Docket Nos. 50-498A POWER COMPANY, et al.,
)
50-499A
)
(South Texas Project,
)
Units 1 and 2)
)
)
TEXAS UTILITIES
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Docket Nos. 50-445A GENERATING CO., et al.,
)
50-446A
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(Comanche Peak System
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Electric Station,
)
Units 1 and 2).
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ANSWER OF SOUTHWEST TEXAS ELECTRIC COOPERATIVE IN OPPOSITION TO HOUSTON LIGHTING & POWER COMPANY'S MOTION TO COMPEL PRODUCTION'OF DOCLMENTS SUBPO5 NAED FROM THE FILES OF THE SOUTHWEST TEXAS T,LECTRIC COOPERATIVE' Southwest Texas Electric Cooperative
(" Southwest")
submits herewith its Answer in Opposition to Houston Lighting
& Power Company's
(" Houston") Motion to Compel Production of Documents Subpoenaed from the Files of the Southwest Texas Electric Cooperative (" Motion").
As grounds for its opposition,
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Southwest states that the documents. sought by Houston's Motion have not been subpoenaed from Southwest, and if they were subpoenaed, such process should be quashed as unduly burdensome and oppressive in that it seeks confidential busines s information and expert work product which if released to Southwest's
/ competitors would adversely affect pending litigation and Southwest's future competitive viability as a supplier of electric power and energy in Texas.
I.
BACKGROUND Southwest is a rural electric cooperative which serves 1,329 members in Texas.
It now purchases all the capacity and energy necessary to meet the power requirements of its members from West Texas Utilities Co., a participant in these proceedings.
As a cooperative, Southwest is owned by its members, whose interests are represented through elected directors.
Day-to-day activities are superviced by an employed manager.
The manager of Southwest is Mr. Elton McGinnes.
Southwest is now engaged in litigation with West Texas Utilities Co. (')EU") before the Federal Energy PogulatcTy Commission ( " FE RC" ) in Washington, D.C.
concerning unilaterally filed increases in charges for power and energy purchased from WTU, as well as changed terms and conditions governing the provision of electric service.
Southwest's participation in this case is in conjunction with other rural electric cooperative wholesale customers of WTU.
Southwest also is engaged with these other cooperatives in joint studies directed at identifying and evaluating power supply alternatives.
The participating cooperatives are referred to as the Power Procurement Group.
The Power Procurement Group has retained Mr. Carl N. Stover of C.
H. Gurnsey and Company to undertake the study.
l
. e The. work product of Mr. Stover is paid for by the Cooperatives in the Power Procurement Group, and is the property of and is controlled by those Cooperatives.
II.
ARGUMENT A.
Houston Has Not Properly Subpoenaed The Documents Sought From Southwest.
It is clear on the face of Houston's subpoena that
' it is directed to Mr.'Elton McGinnes individually, and not to Southwast.
The subpoena does not even include Mr. McGinnes' position as Manager of Southwest.
The documents sought, however, are corporate materials under the control of Southwest.
To gain access to the documents of a corporation, such as Southwest, the proper p rocedure for Houston is to issue a subpoena to Southwest.
See SA Moore's Federal Practice, V 4 5. 07 (2]..
i B.
Southwest Should Not Be Required To Produce The Documents Sought By Houston Although, for the reasons indicated above, Southwest does not believe that Houston properly has sub'poenaed documents from its files, the Cooperative is of the opinion that the general question of whether the. documents should be produced at all, and if so under what terms and condi' ions, should be c
addressed by the Board.
Southwest does not question the ability of Houston to co'rrect any procedural deficiencies in its
/ subpoena, and if Southwest were properly served it would be the intent of the Cooperative to file a Motion to Quash, or for a Protective Order.
Accordingly, in the interest of saving the time and expense of the Board, the parties, and the non-parties involved in this dispute, Southwest does not object to the Board's dealing with the issue of production on the merits.
I Essentially, it is the position of Southwest and the l
Power Procurement Group that the studies sought by Houston"are confidential business documents which if released to Southwest's competitors could adversely affect the interests both of its members and the members of the other Cooperatives participating in the Power Procurement Group.
Southwest and the other members of the Group are now engaged in negotiations with WTU toward settlement of pending litigation before the FERC, and the studies and correspondence sought could provide WTU with improper advantage over the Cooperatives.
Additionally, revelation of the Cooperative's analysis of future power supply options could compromise certain options to the detriment of Southwest and the other Cooperatives.
Accordingly, the documents sought should not be ordered produced.
Despite Houston's allegations to the contrary (Motion at 6), it is not the intention of Southwest or its counsel to wrongfully deny Houston access to documents necessary to its case and properly discoverable.
Nor have they acted in bad faith or in a dilatory manner with respect to the question of the discoverability of the studies.
When it became apparent
r
- to Southwest and its counsel that Houston desired certain documents the release of which could adversely affect a number of other cooperatives as well as Southweat, a joint decision was made that the cohfidential data should be protected if legally permissible.
Southwest does not believe that it is properly discoverable and requests that the Board so rule.
If the Board does determine that the documents must be produced, Southwest requests that a Protective Order, as already agreed to by Houston, be issued.
Furthermore, the Board should make it clear that privileged communications need not be produced (although Southwest would provide Houston with a list of such documents).
Respectfully submitted,,
/
'b ' $f,#>&M6 Robert A.
O'Neil Attorney for Southwest Texas Electric Cooperative MILLER, BALZS & O'NEIL, P.C.
776 Executiva Building 1030 Fif teent'. S treet, N.W.
Washington, D.C.
20005 Date:
April 24, 1980
r VERIFICATION
'l DISTRICT OF COLUMBIA /ss:
Robert A.
O'Neil, being first duly sworn on oath deposes and says that he has read the foregoing document and knows the contents thereof, that he has been authorized to present the same on behalf of Southwest Texas Electric Cooperative and that the facts therein stated are true and
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correct as he verily believes.
i Robert A. O'Neil
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Subscribed and sworn to before me this 24th day of April, 1980.
Ca~t? A Notary Public My Commission Expires:
My Canmission Empi,a June 14, 1982 e