ML19347B639

Requests,On Behalf of Util,That Board Hold Conference Call Involving All Parties to Discuss & Resolve Serious Questions Re Trial Brief & Related Filings Submitted by Tx Util Generating Co.Certificate of Svc Encl

ML19347B639
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	10/14/1980
From:	Bouknight J LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Glaser M, Mark Miller, Wolfe S Atomic Safety and Licensing Board Panel
References
ISSUANCES-A, NUDOCS 8010150476
Download: ML19347B639 (9)

Text

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• Davec e maSeism 1 : ';;P October 14, 1980 Marshall E. Miller, Esquire Michael L. Glaser, Esquire Sheldon J. Wolfe, Esquire

, Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Houston Lighting & Power Company (South Texas Project, Units 1 and 2)

Docket Nos. 50-498A, - 499A; Texas Utilities Generating Company (Comanche Peak Steam Electric Station; Units 1 and 2) Docket Nos. 50-445A, - 446A Gentlemen:

"ouston Lighting & Power Company hereby respectfully requests the Board to hold a conference call involving all partie: as soon as possible, to permit discussion and reso-lution of serious questions raised by the character of the Trial Brief and related filings submitted by the Public Utilities Board of Brownsville, Texas (PUB).

Houston was not provided untillateThursdayafternoon,pthacopyofPUB'sfilings

- and has been able to 1/ The Trial Brief and other filings are dated October 8, 1980.

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LowENSTEIN, NEWMAN. REss. AXELRAD & TOLL Marshall E. Miller, Esquire Michael L. Glaser, Esquire Sheldon J. Wolfe, Esquire October 14, 1980 Page 2 review them only a short time, but even from this initial review it is clear that those filings fail to conform in every respect with the procedural Orders issued by this Board, both recently and throughout this proceeding, and that they are openly contemptuous of the Board's rulings in at least the following material particulars:

1. The first sentence of PUD's Trial Brief states its intention to " supplement" its Brief in a manner not explained; it later expresses PUB's intention to " refine and eliminate parts of its proposed evidence and to introduce other evidence."

(Br. at 6). PUB views its BrJef as merely a preliminary submission, not its final one, in direct contradiction of the rulings of the Board. 1

2. PUB's filing provides no witness summ It also fails to provide copies of PUB's exhibits.gpies. PUB thus ,

utterly fails to apprise the Board and the parties what its j evidence will be. 1 l

3. PUB does not intend to rely on live testimony gen- i erally. Rather it seeks to incorporate the record of depositions and testimony from this and other cases before FERC, SEC, and the District Court. This is a flatly unfounded course in the following respects:

l (a) This Board has on at least three occasions l l emphasized its determination to hear and decide this l proceeding on the basis of live testimony, emphasizing i that depositions would generally only be utilized "in the case of death or unavailability of a witness."

(Tr. 104-05, 203-04, 441-44). Not only does this comport with controlling legal standards, (see Fed. R. Evid.

804 (b)) but moreover, all parties have conducted their deposition practice and prepared for hearing with this ground rule in mind.

-2/ PUB gives the author and date of some documents it evi-dently seeks to offer as exhibits (though no exhibit numbers are provided), but this plainly is not what the Board directed. The Board ordered exchanges of copies, so that each litigant's exhibits could be reviewed for sub-stance and admissibility, and initialed as to authenticity.

(Tr.635-36). Indeed, Houston may never have seen and/or copied a number of PUB's exhibits, nor can Houston readily extract those it may have in its possession from among the tens of thousands of documents in this case.

o LowuxsTEtw, NEWM AN. REIS, AXELHAD & TOLL s

Marshall E. Miller, Esquire Michael L. Glaser, Esquire Sheldon J. Wolfe, Esquire October 14, 1980 Page 3 l

l (b) The Board ruled at the beginning of this 1 l

proceeding that testimony in other proceedings would not even be treated as deposition testimony in this i proceeding, much less swept into the record as evi-4 dence (Tr . 101-04 ) . Moreover, none of the other forums from which PUB wishes to import testimony are dealing with the same issues involved here. Indeed, PUB has previously advised the Board that "in a word, this is a different case with different issues."

Response to Motions fo{/ Summary Decision or Dismissal (April 23, 1979) at 6._

5. PUB lists as its witnesses the expert witnesses designated by the governmental parties including Dr. Taylor, Mr. Scott, Mr. Hartley, plus three experts utilized by the government as nog-testifying consultants in conjunction with the settlement.4/ Thus PUB would have the Board conscript into PUB's service the experts retained by the governmental parties which have settled. Aside from the patent impropriety of the conscription, PUB's filing gives no inkling of the substance of the testimony that these persons might provide, and thus affords Houston no notice of the presentation which it must meet.

3/ Not only does the procedure proposed by PUB conflict with the Federal Rules of Evidence and this Board's rulings, it would, contrary to PUB's claims, lengthen and burden the hearing. If PUB succeeds in importing parts of the record of other proceedings into this one, Houston would have little alternative but to import in most of the remainder of these records in order to present the complete picture. The same is true for the deposition record in this proceeding.

4/ " Argyll Toalston [S I C), William Zelinksy, and Whitfield Russell." PUB Filing at 50. With respect to Mr. Toalston and Mr. Zelinsky, PUB ignores 10 C.F.R. S 2.720 (i.) (2) (i) in addition to the Board's prior orders.

LOWENSTEIN. NEWMAN. REss. AxEtnao & TOLL 4

Marshall E. Miller, Esquire Michael L. Glaser, Esquire Sheldon J. Wolfe, Esquire October 14, 1980 Page 4

6. A number of the witnesses named by PUB have never been designated as a witness by any party to this case. Witness designations were equested in Houston's Inter-rogatories to PUB and others. Pc sons not named were never the subjec of discovery and pla;cly are not appropriate p

witnesses Accordingly, Houston requests a conference call as afore-said for prompt resolution, inter alia, of the following questions:

1. Whether the Board should require PUB to comply fully with its Orders, and provide complete witness summariesandcopiesofexhibitsbyThursday,Octobergp, upon pain of default pursuant to 10 C.F.R. S 2.707 (a) .-

2. Whether the ground rules that have been in effect since the outset of this proceeding should be radically altered to permit:

(a) Th' incorporatien as evidence of testimony from va ious proceedings in other forums; (b) The use of depositions in place of live testimony by persons who are alive and available  !

to testify (in each instance the depositions in ,

issue were taken without notice that the deponent j might be called as a witness by PUB),  ;

I 5/ Moreover, none of the witnesses named by PUB was ever pre-  ;

viously designated by PUB as its witness. Thus even leaving 1 aside the uniqueness of the issues here as opposed to l those in other cases, Houston has never had any reason l to cross-examine or take discovery from such witnesses 1 regarding PUB's allegations and has not done so. l

-6/ If this course is taken, the other parties should be afforded until two weeks thereafter to file their responsive submissions.

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LOWENSTEIN, NEWM AN. HEls. AXELHAD & TOLL Marshall E. Miller, Esquire Michael L. Glaser, Esquire Sheldon J. Wolfe, Esquire October 14, 1980 Page 5 (c) The use of expert and/or fact witnesses whose identity as possible witnesses for PUB was not divulged prior to Thursday, notwithstanding the pendency of continuing interrogatories re-quiring this information; (d) The conscription by PUB of other parties' experts.

Houston believes strongly that it would be unfair to consider any change in basic ground rules at this eleventh hour, even in response to a properly filed motion requesting changes. PUB has filed no such motion. It has simply taken the matter into its own hands in open contempt of the Board's Orders. Houston requests that the Board consider this matter promptly, because PUB's filings diverge so thoroughly from the procedures specified by the Board as to prevent Houston and other parties from filing responsive papers in the form specified in the Board's Orders.

Respectfully submitted,

%./$ lc J.A.

r d' h Bouknight,' Jr.

Counsel for Houston Lighting & j Power Company

. OF COUNSEL: I Baker & Botts 3000 One Shell Plaza Houston, Texas 77002 Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Ave., N.W. I Washington, D.C. 20036 DATED: October 14, 1980

l UNITED STATEL OF AMERICA NUCLEAR REGULA'10RY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

l HOUSTON LIGHTING & POWER )

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

)

l TEXAS UTILITIES GENERATING )

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

f CERTIFICATE OF SERVICE

! I hereby certify that copies of the foregoing letter dated October 14, 1980 were served upon the following persons, by hand *, or by deposit in the United States Mail, first class postage pre-paid, this 14 th day of October, 1980.

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• Fredric D. Chanania, Esquire l

• Marshall E. Miller, Esquire Michael B. Blume, Esquire l

U.S. Nuclear Regulatory Commission l 20555 Ann P. Hodgdon, Esquire Washington, D.C. U.S. Nuclear Regulatc y Commission j Washington, D.C. 20m 5 l

• Michael L. Glaser, Esquire 1150 17th Street, N.W.

Roff Hardy Washington, D.C. 20555 Chairman and Chief Executive ,

• Sheldon J. Wolfe, Esquire Officer Central Power and Light Company j U.S. Nuclear. Regulatory Commission Washington, D.C. 20555 Post Office Box 2121  :

Corpus Christi, Texas 78403 Atomic Safety and Licensing J.K. Spruce, General Manager Appeal Board Panel City Public Service Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Post Office Box 1771 San Antonio, Texas 78296 Chase R. Stephens, Supervisor (20)

Docketing and Service Branch Mr. Perry G. Brittain U.S. Nuclear Regulatory Commission President i

20555 Texas Utilities Generating Company Washington, D.C. 2001 Bryan Tower Dallas, Texas 75201 Mr. Jerome D. Saltzman

' Chief, Antitrust and Indemnity G.W. Oprea, Jr.

Group Executive Vice President U.S. Nuclear Regulatory Commission Houston Lighting & Power Company Washington, D.C. 20555 Post Office Box 1700 Houston, Texas 77001 J. Irion Worsham, Esquire Merlyn D. Sampels, Esquire R.L. Hancock, Director Jpencer C. Relyea, Esquire City of Austin Electric Utility Worsham, Forsyth & Sampels Post Office Box 1086 2001 Bryan Tower, Suite 2500 Austin, Texas 78767 Dallas, Texas 75201 Jon C. Wood, Esquire Joseph Gallo, Esquire Matthews, Nowlin, Macfarlane Robert H. Loeffler, Esquire David M. Stahl, Esquire

& Barrett Isham, Lincoln & Beale 1500 Alamo National Building 1120 Connecticut Avenue, Suite 325 San Antonio, Texas 78205 20036

' Washington, D.C.

Charles G. Thrash, Jr., Esquire Michael I. Miller, Esquire E.W. Barnett, Esquire James A. Carney, Esquire Theodore F. Weiss, Esquire Sarah Welling, Esquire 2 Gregory Copeland, Esquire Martha E. Gibbs, Esquire Baxer & Botts Isham, Lincoln & Beale 3000 One Shell Plaza One First National Plaza Houston, Texas 77002 Suite 4200 Chicago, Illinois 60603 R. Gordon Gooch, Esquire Steven R. Hunsicker, Esquire Baker & Botts 1701 Pennsylvania Avenue Washington, D.C. 20006 i

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• Kenneth M. Glazier, Esquire Don R. Butler, Esquire David A. Dopsovic, Esquire 211 East Seventh Street Frederick H. Parmenter, Esquire Austin, Texas 78701 Susan B. Cyphert, Esquire Nancy A. Luque, Esquire Mr. William C. Price Robert Fabrikant, Esquire Central Power & Light Company Energy Section Antitrust Division Post Office Box 2121 U.S. Department of Justice Corpus Christi, Texas 78403 P.O. Box 14141 Washington, D.C. 20044 Mr. m Holman King West Texas Utilities Company Morgan Hunter, Esquire Post Office Box 841 Bill D. St. Clair, Esquire Abilene, Texas 79604 McGinnis, Lockridge & Kilgore Fifth Floor Jerry L. Harris, Esquire Texas State Bank Building Richard C. Balough, Esquire 900 Congress Avenue City of Austin Austin, Texas 78701 Post Office Box 1088 Austin, Texas 78767 W.S. Robson General Manager

• Joseph B. Knotts, Jr., Esquire South Texas Electric Cooperative, Nicholas S. Reynolds, Esquire Inc.

C. Dennis Ahearn, Esquire Post Office 151 Debevoise & Liberman Nursery, TX 77976 1200 Seventeendt Street, N.W.

Washington, D.C. 20036

• Robert C. McDiarmid, Esquire Don H. Davidson George Spiegel, Esquire City Manager Robert A. Jablon, Esquire City of Austin Marc R. Poirier, Esquire P.O. Box 1088 Spiegel & McDiarmid Austin, Texas 78767 2600 Virginia Avenue, N.W.

Suite 312 Jay Galt, Esquire. Washington, D.C. 20037 Looney, Nichols Johnson & Hays 219 Couch Drive Kevin B. Pratt Oklahoma City, Oklahoma 73102 Texas Attorney General's Office Post Office Box 12548

' Knolant J. Plucknett Austin, Texas 78711 Executive Director Committee on Power for the South- William H. Burchette, Esquire west, Inc. Frederick H. Ritts, Esquire ,

5541 East Skelly Drive Law Offices of Northcutt Ely 1 Tulsa, Oklahoma 74135 Watergate 600 Building Washington, D.C. 20036 j John W. Davidson, Esquire  ;

Sawtell, Goode, Davidson & Tioili Tom W. Gregg, Escuire l 1100 San Ant 6nio Savings Building Post Office Box Drawer 1032 l San Antonio, Texas 78205 San Angelo, Texas 76902 Douglas F. John, Esquire Leland F. Leatherman, Esquire t

McDermott, Will and Emery McMath, Lsatherman & Woods, P.A.

l 1101 Connecticut Avenue, N.W. 711 West Third Street l Suite 1201 Little Rock, Arkansas 72201 l Washington, D.C. 20036 1

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Paul W. Eaton, Jr., Esquire Hinkle, Cox, Eaton, Coffield & Hensley 600 Henkle Building Post Office Box 10 88201 Roswell, New Mexico Robert M. Rader, Esquire Conner, Moore & Corber 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 W.N. Woolsey, Esquire Kleberg, Dyer, Redford & Weil 1030 Petroleum Tower Corpus Christi, Texas 78474 Donald M. Clements, Esquire Gulf States Utilities Company Post Office Box 2951 Beaumont, Texas 77704 Dick Terrell Brown, Esquire 800 Milam Building San Antonio, Texas 78205 Robert E. Cohn, Esquire Richard J. Leidl, Esquire Butler, Binion, Rice, Cook

& Knapp 1747 Pennsylvania Avenue, N. W.

Ninth Floor Washington, DC 20006 Stephen H. Lewis, Esquire U. S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, DC- 20555 Robert A. O'Neill, Esquire Miller, Balis & O'Neil, P.C. ' , '

776 Execr.'.ve Building

! {L 1030 Fifteenth Street, N.W. ,

y Washington, D.C. 20005 N3