ML19323B770

Response to Houston Lighting & Power 800326 Motion to Compel Production of Documents Subpoenaed from Southwest Tx Electric Cooperative Files.Urges Denial of Request to Strike Mcginnes Potential Testimony.Certificate of Svc Encl

ML19323B770
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	04/07/1980
From:	Cyphert S JUSTICE, DEPT. OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8005140215
Download: ML19323B770 (6)

Text

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. 80051409/6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

HOUSTON LIGHTING & POWER )

COMPANY, et al. (South ) Docket Nos. 50-498A Texas Project, Units 1 ) 50-499A and 2) )

)

TEXAS UTILITIES GENERATING )

COMPANY,'et al. (Comanche ) Docket Nos. 50-445A Peak Steam Electric ) 50-446A Station, Units 1 and 2) )

DEPARTMENT OF JUSTICE'S RESPONSE TO HOUSTON LIGHTING & POWER COMPANY'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS SUBPOENAED FROM THE FILES OF THE SOUTHWEST TEXAS ELECTRIC COOPERATIVE On February 1, 1980, the Department of Justice (" Department")

designated Mr. Elton McGinness as a potential witness in the above-captioned proceedings. Mr. McGinness is General Manager of Southwest Texas Electric Cooperative in Eldorado, Texas. On February 21, 1980, Mr. McGinness was deposed by counsel for Houston Lighting & Power Company ("HL&P") and Texas Utilities in Dallas, Texas, for almost a complete day. Mr. McGinness had apparently been served with a subpoena duces tecum for certain documents which Mr. McGinness did not bring with him on that day on advice of his counsel. Thereafter, on March 26, 1980, HL&P filed the instant motion to obtain these documents. 1/

1/ Despite the Atomic Safety and Licensing Board's instruction and the Department's understanding that it would receive a hand-delivered copy of this Motion following a Jretrial Telephone Conference with the Board on March 28, 1980, the Department did not in fact receive this Motion until March 31, 1980.

The Department has no additional knowledge of whether Mr. McGinness has any documents responsive to this subpoena other than what was revealed at his deposition or whether they have been withheld on the basis of some privilege or concern regarding confidentiality on advice of his counsel. Accordingly, the De-partment is not in a position to oppose or support HL&P's Motion. The Department, however, does not object to entering into an appropriate protective order which may address any concerns of Mr. McGinness or his counsel. As the record of Mr. McGinness' deposition demonstrates, the Department also made this representation at the time of his deposition.

HL&P's Motion requests that this Board order the Southwest Texas Electric Cooperative to produce the documents sought by its subpoena. In the alternative HL&P requests that the Board strike all potential testimony of Mr. McGinness and all other members or representatives of the Southwest Texas Electric Cooperative if the Board will not order production of the documents at issue. Irrespective of the merits of whether the documents should be produced, the Board should not grant HL&P's alterna-tive relief since such a sanction clearly is not an appropriate remedy under the circumstances and would severely prejudice the Department of and any other parties which may wish to designate Mr. McGinnesc as a potential witness or adopt his potential tes-timony, particularly since the Department has no power to compel or control the production of these documents other than through i

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the issuance of an order by the License Board as requested by HL&P. Moreover, if the Board adopted such a sanction sought by HLAP, the Board could be deprived of the substance of Mr. McGinness' potential testimony, which clearly bears upon the ultimate issues in these proceedings.

Therefore for the aforementioned reasons, the Department respectfully requests that HL&P's Motion insofar as it seeks ,

to strike the potential testimony of Mr. McGinness or all other members or representatives of the Southwest Texas Electric i Cooperative be denied. ,

Respectfully submitted,

$ s e usan Braden Cyphert C Attorney, Energy Section Washington, D. C. Antitrust Division April 7, 1980 Department of Justice (202) 724-6667 I

I e

e a

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licenting Board In the Matter of )

HOUSTON LIGHTING AND POWER ) Docket Nos. 50-498A CO., et al.(South Texas ) 50-499A e :

Project, Units 1 and 2) )

) e TEXAS UTILITIES GENERATING ) Docket Nos. 50-445A COMPANY (Comanche Peak ) 50-446A -

Steam Electric Station, )

Units 1 and 2) ) o CERTIFICATE OF SERVICE I hereby certify that service of the foregoing Department of Justice's Response to Houston Lighting & Power Company's Motion to Compel Production of Documents Subpoenaed from the Files of the Southwest Texas Electric Cooperative has been made .

on the following parties listed hereto this 7th day of April, 1980, by depositing copies thereof in the United States mail, first class, postage prepaid.

Marshall E. Miller, Esquire Alan S. Rosenthal, Esquire Chairman Chairman i Atomic Safety & Licensing Board Michael C. Farrar, Esquire Panel Thomas S. Moore, Esquire U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board Panel Washington, D. C. 20555 U.S. Nuclear Regulatory Commission Michael L. Glaser, Esquire Washington, D. C. 20555 1150 17th Street, N.W.

Washington, D. C. 20036 Jerome E. Sharfman, Esquire U.S. Nuclear Regulatory  !

Sheldon J. Wolfe, Esquire Commission Atomic Safety & Licensing Board Washington, D. C. 20555 Panel U.S. Nuclear Regulatory Chase R. Stephens, Secretary i Commission Docketing and Service Branch i Washington, D. C. 20555 U.S. Nuclear Regulatory J Commission Samuel J. Chilk, Secretary Washington, D. C. 20555 Office of the Secretary of the Commission Jerome Saltzman ,

J U.S. Nuclear Regulatory Chief, Antitrust and Commission Indemnity Group Washington, D. C. 20555 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 l t i

Mr. William C. Price Michael Blume, Esquire Central Power & Light Co. Fredric D. Chanania, Esq.

P. O. Box 2121 Ann P. Hodgdon, Esq.

Corpus Christi, Texas 78403 U.S. Nuclear Regulatory Commission G. K. Spruce, General Manager Washington, D. C. 20555 City Public Service Board P.O. Box 1771 Jerry L. Harris, Esquire San Antonio, Texas 78203 City Attorney, Richard C. Balough, Esquire Perry G. Brittain Assistant City Attorney President City of Austin Texas Utilities Generating P.O. Box 1088 Company Austin, Texas 78767 2001 Bryan Tower Dallas, Texas 75201 Robert C. McDiarmid, Esquire Robert A. Jablon, Esquire R.L. Hancock, Director Spiegel and McDiarmid City of Austin Electric 2600 Virginia Avenue, N.W.

Utility Department Washington, D. C. 20036 P. O. Box 1088 Austin, Texas 78767 Dan H. Davidson City Manager G. W. Oprea, Jr. City of Austin Executive Vice President P. O. Box 1088 Houston Lighting & Power Austin, Texas 78767 Company P. O. Box 1700 Don R. Butler, Esquire Houston, Texas 77001 1225 Southwest Tower Austin, Texas 78701 Jon C. Wood, Esquire W. Roger Wilson, Esquire Joseph Irion Worsham, Esquire Matthews, Nowlin, Macfarlane Merlyn D. Sampels, Esquire

& Barrett Spencer C. Relyea, Esquire 1500 Alamo National Building Worsham, Forsythe & Sampels San Antonio, Texas 78205 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 David M. Stahl, Esquire Isham, Lincoln & Beale Joseph Knotts, Esquire Suite 325 Nicholas S. Reynolds, Esquire 1120 Connecticu t Avenue, N.W. Debevoise & Liberman Washington, D. C. 20036 1200 17th Street, N.W.

Michael I. Miller, Esquire James A. Carney, Esquire Douglas F. John, Esquire Sarah N. Welling, Esquire Akin, Gump, Hauer & Feld Isham, Lincoln & Beale 1333 New Hampshire Avenue, N.W.

4200 One First National Plaza Suite 400 Chicago, Illinois 60603 Washington, D. C. 20036 l

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Morgan Hunter, Esquire Robert Lowenstein, Esquire McGinnis, Lochridge & Kilgore J. A. Bouknight, Esquire 5th Floor, Texas State Bank William J. Franklin, Esquire Building Lowenstein, Newman, Reis, 900 Congress Avenue Axelrad & Toll Austin, Texas 78701 1025 Connecticut Avenue, N.W.

Washington, D. C. 20036 Jay M. Galt, Esquire Looney, Nichols, Johnson E. W. Barnett, Esquire

& Hayes 219 Couch Drive Charles G. Thrash, Jr., Esquire Oklahoma City, Oklahoma J. Gregory Copeland, Esquire 73101 Theodore F. Weiss, Jr., Esquire Knoland J. Plucknett Baker & Botts 3000 One Shell Plaza Executive Director Houston, Texas 77002 Committee on Power for the Southwest, Inc.

5541 East Skelly Drive Kevin B. Pratt, Esquire Tulsa, Oklahoma Assistant Attorney General 74135 P.O. Box 12548 Capital Station John W. Davidson, Esquire Austin, Texas 78711 Sawtelle, Goode, Davidson

& Tioilo Frederick H. Ritts, Esquire 1100 San Antonio Savings Law Offices of Northcutt Ely Building San Antonio, Texas Watergate 600 Building 78205 Washington, D.C. 20037 W. S. Robson General Manager Donald M. Clements, Esq.

South Texas Electric Gulf States Utilities Company P.O. Box 2951 Cooperative, Inc. Beaumont, Texas 77704 Route 6, Building 102 Victoria Regional Airport Mr. G. Holman King Victoria, Texas 77901 West Texas Utilities Co.

P. O. Box 841 Robert M. Rader, Esquire Abilene, Texas 79604 Conner, Moore & Corber 1747 Pennsylvania Ave., N.W. W. N. Woolsey, Esquire Washington, D.C. 20006 Kleberg, Dyer, Redford & Weil 1030 Petroleum Tower R. Gordon Gooch, Esquire Corpus Christi, Texas 78474 John P. Mathis, Esquire Steven R. Hunsicker Baker & Botts 1701 Pennsylvania Avenue, N.W. '

Washington, D. C. 20006 Susan B. Cyphert, Attorney

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Energy Section Antitrust Division Department of Justice l