ML20214N220
| ML20214N220 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 05/18/1987 |
| From: | Jovan Dennis ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3591 CPA, NUDOCS 8706020102 | |
| Download: ML20214N220 (35) | |
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DOCYETED Filed: k 18, 1987 UNITED STATES OF AMERICA '87 MY 22 P5 :03 NUCLEAR REGULATORY COMMISSION before the er, c, ,
ATOMIC SAFETY AND LICENSING BOA {gFICd v hu lh:3 .. u m:f *
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In the Matter of )
)
) Docket No. 50-445-CPA TEXAS UTILITIES ELECTRIC COMPANY, et al. )
)
)
(Comanche Peak Steam )
Electric Station, Unit 1)
)
RESPONSE TO CONSOLIDATED INTERVENORS' REPLY RE: GREGORY DISCOVERY (Sets 5 & 6)
The Consolidated Intervenors ("Intervenors") filed a reply memorandum in response to the opposition to their motion to 1
compel production of work product documents which have been generated by an independent audit firm (Cresap, McCormick &
Paget, hereinafter "Cresap") during its inccmplete retrospective prudence audit of TU Electric.2 The Intervenors' Reply attempts to create doubts with regard to the affidavit and sworn answers 1 " Consolidated Intervenors' Reply to TUEC's Opposition to Motion to Compel Re: Gregory Discovery (Sets 5 & 6)"
(April 20, 1987) hereinafter " Reply".
2 "Permittees' Response to ' Joint Intervenors' Opposition to Motions for Protective Order and Motion to Compel (March 18, 1987)
Re: Gregory Discovery (Sets 5 & 6)'"
hereinafter " Opposition".
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to interrogatories submitted by TU Electric -- which submissions conclusively establish that the primary reason the audit was commissioned was to aid TU Electric (and its attorneys) in their preparation for forthcoming rate making proceedings before the Texas Public Utility Commission ("TPUC"). The fundamental thrust of the Intervenors' latest effort consists of unfounded attacks on the credibility of competent evidence coupled with the unrestrained speculative hypothesizing suggesting facts of which there is no evidence whatsoever. Upon this shaky foundation, the Intervenors attempt to place an argument, crafted by reliance upon discredited case law, that the Cresap audit materials are not work product. They suggest this is so in part because of their surmise that TU Electic's attorneys were not involved in the supervision of the audit.
The Intervenors' conjecture is in error. Contrary to their assertions, moreover, there is no contradiction in the evidence regarding the history of the Cresap audit and the details of the Cresap Work Specification. The audit was commissioned to aid TU Electric in its preparation for forthcoming rate hearings before the TPUC. No evidence supports the Intervenors' speculations that the audit was not commissioned in anticipation of the rate case, but rather was an attempt to meet the licensing requirements of CPSES. Inasmuch as the Intervenors offer nothing but conjectured " facts" and conclusory arguments to substantiate the showing they are required to make to overcome TU Electric's priv'ilege, their motion to compel should be denied.
J
I. THE AUDIT MATERIALS ARE WORK PRODUCT PREPARED IN-ANTICIPATION OF LITIGATION.
The Intervenors accept the fundamental legal principles applicable to this discovery dispute -- that materials prepared primarily.in anticipation of litigation in this or another proceeding are not discoverable in the ordinary course under applicable NRC Rules of Procedure. See Reply at 1. The Intervenors attempt instead to characterize the Cresap audit as something other than work product. Those efforts are unavailing.
First, the Intervenors' citation to principles of the federal securities laws, Reply at 6-7 -- apparently in an attempt to establish that the primary purpose of the Cresap audit was to comply with the securities laws rather than in preparation for the TPUC rate case -- is facially ridiculous. Public corporations plainly have duties under the securities laws, but just as plainly can perform studies primarily in anticipation of litigation rather than primarily for securities law disclosure purposes. The Intervenors have advanced no facts tending to suggest that it was TU Electric's purpose to do the latter rather than the former. The evidence in the record, moreover, flatly contradicts such a fanciful hypothesis. The existence of federal securities laws, to which the Intervenors point without any limiting principle, thus proves far too much. If accepted, moreover, such logic would strip publicly-held companies of all
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' work product protection. No court has so held and the
?)Intervenorscitenoauthorityinsupportoftheirposition.3 s.
In addition the Intervenors attempt to supplement their Reply with an incomplete reference to a recent proxy statement issued Letter to Licensing Board, May 5,
~
by TU' Electric.
1987.4 Nothing set forth in that statement regarding the prudence au'dit negates that it is being prepared in anticipation of litigation, or precludes TU Electric from deciding what portions of Cresap's work product, which currently comprices the only_ work completed on the audit, may be disclosed in its rate case. The portion of the..TU Electric proxy statement correctly
. recites only that an " independent consultant is performing . . .
a management prudency" review. This is exactly congruent with TU Electric's responses to the Intervenors' interrogatories and presents no inconsistency. See Permittees' Supplemental 3 Equally devoid of evidentiary support is the Intervenors' speculation that "the real' driving force behind the Cresap audit" was to meet licensing requirements imposed by the-Staff._ Reply.at 5. This contention is_ buttressed by nothing more than a. citation to the fact of the Staff's issuance of SSER-11. Id. at 4. The record in this case is replete with the Permittees' responses to that and other SSERs issued by-the Staff, and the'Intervenors' unsupported conjecture on the Permittees' alleged "real" motives is hardly~an adequate substitute for factually-based argument.
that the Intervenors filed this further addition to
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their brief without obtaining leave from this Board to do so, or giving the other parties the opportunity to challenge such further supplementation. This was improper.
10 C.F.R. 52.730(c); Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), LBP-76-38, 4 NRC 435, 441 (1976).
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Responses to Meddi e Gregory Interrogatories (Set 5) (February 10, 1987). As reflected in both documents, the current suspension of 2 Work'on the prudence audit is only temporary and will be a discontinued in order to finish the work in coordination with TU Electric's filing of its request for a rate making proceeding.5 The proxy stathment also correctly forecasts that " findings [from l
the prudency review] will be presented in one or more public forums." Not only is there no inconsistency, this commitment has little to do with whether Cresap will necessarily be a witness in
'such fora or the more fundamental question of whether Cresap's current work product, which will presumably eventually be used to reach publicl'y issuable " findings", should now be made available to the Intervenors. 10 C.F.R. 92.740(b)(2) guarantees that it should not. Attached, for the Board's information, is the entire Proxy Statement.
Second, in what appears to be their only focused legal argument [.theIntervenorsclaimthatworkproductimmunity applies only to attorney work product. This contention simply misstates the law. The work product privilege is in no way 5 Note that the issue of the current suspension of Cresap's work only became injected into this dispute as a result of TU Electric's required response to the See Intervenors' specific question of current status.
Permittees' Supplemental Responses to Meddie Gregory So far Interrogatories (Set 5) (February 10, 1987) at 3-4.
as we can see, the' current level of activity on the prudence audit has little to do with the discoverability of the wo:.-k product generated therein to date.
dependent on the involvement of an attorney. See Exxon Corp. v. Federal Trade Commission, 663 F.2d 120, 129 (D.C. Cir.
1980) (doctrine protects report by economists which party used to i
furnish " advice and assistance on issues and strategic options relevant to the trial"); In re International Systems & Controls Corp., 693 F.2d 1235, 1240 (5th Cir. 1982)'(doctrine applies to audit by accounting firm executed as part of corporation's internal investigation of bribery allegations); J.H. Rutter Rex Manufncturing Company, Inc. v. NLRB, 473 F.2d 223, 224 (5th Cir.)
cert, denied 414 U.S. 822 (1973) (notes of non-lawyer prepared in anticipation of litigation are protected work product); Feldman v. Pioneer Petroleum, Inc., 87 F.R.D. 86, 88 (W.D. Okla. 1980) (" material need not be prepared by an attorney as Rule 26(b)(3) expressly extends protection to materials prepared by or for a representative of a party, including his agent"); 4 Moore 126.64[2] ("under the rule [26(b)(3)] there is no distinction between materials prepared by a claim agent, insurer, or any other agent of the party, or by the party himself. Therefore involvement of an attorney is not a prerequisite to application of [ Rule] 26(b)(3)").6 s The Intervenors rely on Thomas Organ Co. v. Jadranska Plovidba, 54 F.R.D. 367 (N.D, Ill. 1972), for their contention that "there needs to be sufficient guidance from a lawyer to reflect the employment of the attorney's expertise" in order for a document to be protected by the work product privilege. Reply at 10. Thomas organ is a maverick decision that rightly has been criticized on the ground that it ignores the 1970 amendment to Rule 26(b)(3),
J Third, the Intervenors' attempts to challenge the probative force of the affidavit of Mr. Schmidt are wholly specious. .
J the Apparently recognizing the paucity of their own evidence, Intervenors first attempt to discredit the affidavit of Mr.
Schmidt simply because his affidavit is offered by the Permittees and the Permittees have in the past, according to the Intervenors, offered non-creditable testimony. Reply at 8. Such attempts to refute objective evidence by trying to taint a witness with the brush of guilt-by-association is undeserving of further comment. Cf. United States v. Pritchett, 699 F.2d 317, 318-20 (6th Cir. 1983) (line of prosecutor's questioning objectionable because it could be perceived as an attempt to Fed. R. Civ. P., and that it " misinterprets the purpose of the 1970 amendment" (to It Fed. R. Civ. P. 26(b)(3)]." 4 Moore is thus not surprising that it has 1 26.64 [2] at n. 23.
been flatly rejected by subsequent decisions. E.g.,
Basinger v. Glacier Carriers, Inc., 107 F.R.D. 771, 773 (M.D. Pa. 1985) and cases cited; Fontaine v. Sunflower Beef Carrier, Inc., 87 F.R.D. 89, 92 (E.D. Mo. 1980).
Burlington Industries v. Exxon Corp. 65 F.R.D. 26 (D. Md. in 1974), relied upon by the Intervenors for the same point, fact recognizes that the work product privilege encompasses documents generated by non-attorneys and states that the question of whether a document is protected by the work product privilege "becomes one of when a document made by a non-lawyer or a lawyer acting in a non-legal capacity may be deemed to have been prepared in anticipation of litigation." Id. at 42. This is precisely the standard espoused by TU Electric.
In any event, TU Electric's attorneys were involved in ,
advising it to commission the audit and directly supervised its performance. The Intervenors suggest no reason why, even under the criticized cases they rely upon, such involvement is insufficient.
J establish guilt by association); United States v. Singleterry, 646 F.2d 1014, 1018 (5th Cir. 1981) cert. denied 459 U.S. 1021 (1982) (attempt to show guilt by association held to be plain error); Fed. R. Evid. 608 (limitations on the manner in which J credibility of a witness may be challenged); Wright & Miller,
$2726 at 118-119 (1983) ("the general rule is that specific facts must be produced in order to put credibility in issue so as to preclude summary judgment. Unsupported allegations that credibility is in issue will not suffice").
The Intervenors' further criticism of that affidavit as "a list of evidentiary conclusions devoid of any evidence", Reply at 7, entirely misses the point. Mr. Schmidt's affidavit speaks to objective facts concerning the purpose of TU Electric when it commissioned the prudence audit. He has personal knowledge regarding that decision, was also personally involved in the hiring of Cresap, and his testimony is thus competent, probative and compelling. The Intervenors' arguments that Mr. Schmidt has advanced " evidentiary conclusions" rather than facts suggests a misunderstanding of the casic principles of evidence. It is correct that legal conclusions such as, "the defendant was negligent" or, as would be relevant to this case, "the documents are work product" do not properly belong in an affidavit. See, e.g., A.L. Pickens Co. v. Youngstown Sheet & Tube Co., 650 F.2d 118, 121 (6th Cir. 1981) ("when ultimate facts or conclusions of law appear in an affidavit which also contains the proper subject of affidavit testimony, facts within the personal knowledge of the affiant, the extraneous material should be disregarded, and only the facts considered"); Donnelly v. Guion, 467 F.2d 290, 293
J (2nd Cir. 1972) (affidavit in opposition to summary judgment should present facts rather than conclusion that "cause of death was obscure"); 6 Moore 156.22[1] (1976) and Supp. (1986). Mr.
Schmidt's affidavit, however, does not contain legal conclusions, but factual statements based on his personal knowledge.
Moreover, Mr. Schmidt's affidavit appropriately speaks to matters regarding corporate purpose or intent. See Brooks v. Utah Power
& Light Co., 151 F.2d 514, 516 (10th Cir. 1945) (uncontroverted affidavit of company president sufficient to refute allegation of fraud).
In addition, the Intervenors cite Kleinerman v. United States Postal Service, 100 F.R.D. 66, 70 (D. Mass. 1983) for the proposition that Mr. Schmidt's affidavit is not sufficient because it "does not attach the primary evidence on which the conclusion is based." Reply at 8. Kleinerman stands for the different, and more limited, proposition that a party seeking protection from disclosure on the basis of claimed work product has the initial burden of proof on the issue and must come forward with something more than "a few conclusory statements,"
100 F.R.D. at 70. It is not clear that in Kleinerman the party resisting discovery had proferred any affidavit on the work product point. By contrast, TU Electric has submitted the Work Specification establishing the reasons for the Cresap audit, supplemented by the sworn recollection of Mr. Schmidt on the same point.
'l Moreover, Mr. Schmidt's affidavit is amply supported by the only other evidence in the record, evidence that the Intervenors conveniently ignore in their Reply. In this regard, we respectfully refer the Board to the history of this prior It also discovery, which was set forth in the Opposition at 3-6.
bears repeating that CASE has previously conceded that the Cresap audit was undertaken in preparation for an appearance in front of the Public Utility Commission. See " CASE's Motion for Aside Reconsideration of Board's 7/22/85 Memorandum" at 2 n.4.
from attempting to label the Permittees' discovery responses as
" cryptic", Reply at 2, the Intervenors' Reply ignores this prior filed evidence, the fact that the Permittees have supplied consistent responses, and that much of the information on which the Cresap auditors will rely in eventually formulating its conclusions (after work on the audit is resumed) has already been provided through discovery to the Intervenors in the operating license proceeding.
The allegedly " obvious inconsistencies" claimed by the Intervenors to exist in the Work Specification, the earlier filed i
responses to discovery and Mr. Schmidt's affidavit are not in l fact in the least inconsistent. Any conceivable concern that might be raised by real inconsistencies vanishes because there are none. For example, the Intervenors allege an inconsistency i
between Mr. Schmidt's statement that the decision to conduct a prudence audit was made upon advice of counsel, and the Work Specification's statement that its results would be disclosed to
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TU Electric, conceivably submitted to the TPUC, and that further contractual. negotiations would be held if testimony was to be required at the rate hearing. Reply at 2-3.7 TU Electric confesses to some initial puzzlement about how the Work Specifications cited-by the Intervenors could possibly have been thought to have been inconsistent with Schmidt's unadorned factual statement that the decision to commission such an audit was based upon the advice of TU Electric's counsel. Apparently the Intervenors would admit that this confusion is not unfounded, for upon careful reading one discerns that their claimed inconsistency is not based upon what Mr. Schmidt said but rather upon-the " intended implication" which the Intervenors would draw from the Schmidt affidavit. Reply at 2. While the establishment and subsequent destruction of " straw men" may be a time-honored advocacy technique, its implementation to suggest a witness has been dishonest in what he has said under oath strains the There is, in propriety of such a conceit to its bursting point.
fact, nothing inconsistent between Mr. Schmidt's statements and any other item of evidence! The truth of those statements cannot be avoided by attempts to rewrite them in order to create some nonexistent tension.
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7 The Intervenors state that "the decision to conduct the I audit included, but apparently was not based principally The affidavit upon, ' advice of its counsel.'" Reply at 2.
actually states that the decision was made "upon advice of counsel." 2.
- Schmidt Affidavit at l
l.
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s Another purported " contradiction", Reply at 3, allegedly lies between Mr. Schmidt's statement that the auditor's work would be kept confidential and the Work Specification provision that possible briefings by the auditor might include discussion of key facts, preliminary conclusions and the like. But it is utterly inconceivable how anyone could deem disclosure to the person commissioning an audit to contradict the audit's confidential nature.s The further alleged inconsistency -- between Mr. Schmidt's statement that TU Electric concluded that there would not be interim reports on conclusions or assessments, while the Work Specification allowed for the possibility of interim technical briefings -- is no more real. The Work Specification's allowance' for interim reports on "possible future a We cannot help but comment on the Intervenors' concomitant assertion (Reply at 3), if only to share our bemusement at the occasional excesses of their advocacy.
The notion that a provision in one of the contract documents which contemplated the possible sharing of Cresap's data with TU Electric's other " agents" should be read as a commitment that work product information would be shared with " essentially everyone of the 5,000 person [TU Electric] workforce" may transcend even the ludicrous.
- It should perhaps be noted, inasmuch as it seems to have eluded the Intervenors, that the Work Specification is not a blueprint for work actually done, or to be done, in the prudence audit. As a review of its entire text will reflect, it is in essence an outline of the work which TU Electric wanted someone to bid upon: in essence a Request for Proposal. The members of this Board may note from their own experience that there may often be differences between work as described at the stage of requesting the bid and the work actually performed.
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J Nor can recommendations" does not require their submission.
job reserving the possibility of such reports in the auditors' description be employed to alter the primary purpose of the Cresap audit'in preparation for litigation. Cf. Hermsdorfer v.
American Motors Corp., 96 F.R.D. 13, 15 (W.D.N.Y. 1982)
(Rule 26(b)(4) procedures apply to attempted discovery of expert even if the expert is employed for product improvement purposes in addition to retention as expert witness).
Fourth, the Intervenors urge that the Work Specification is the best evidence of why the Cresap prudence audit was commissioned, Reply at 2, yet seek to deny the Work Specification's express statement that the audit is being prepared in anticipation of litigation:
TUEC will file a rate case with the Texas Public Utilities Commission (TPUC) to recover costs and expenses associated with the plant. In anticipation of this rate case, TUEC is initiating a retrospective audit of the project management decisions . . . .
the Intervenors Notwithstanding this plain language, speculate that the "real driving force behind the Cresap audit was to meet the more immediate licensing requirements
' being imposed by the Staff and specifically to avoid preparing material for the hearing," Reply at 5-6.
they go on Unfettered by anything but their own imagination, to hypothesize that "the principle purpose of the prudency audit program at audit was as a part of the ongoing [CPRT]
Commanche Peak [as required by] 10 CFR Part 50, Appendix B, l
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XVII," Reply at 4. The Intervenors' only " support" for these charges is the provision of the Work Specification permitting, but not requiring, interim technical briefings.
Any trail of logic leading from that fact to the Intervenors' contention is impossible to follow, however.
The possibility -- or indeed the execution -- of interim briefings of a client can hardly alter the essential (in this case litigation preparation) purpose for which the agent's work was commissioned. Were that not so, one might argue that showing a draft memorandum of law to a client could strip it of its otherwise undoubted status as attorney work product. This is of course neither the law nor an adequate foundation for the sort of conjecture and surmise the Intervenors would urge upon this Board.
Fifth, the Intervenors continue mistakenly to assert that because the auditors may or may not be asked to testify at the rate case, the audit has not been conducted primarily in anticipation of the TPUC rate proceedings.18 As explained in the Opposition, the very fact that the auditors may or may not be called to testify at the rate case merely confirms that Cresap is acting as an expert advisor to TU 18 The Intervenors argue that the Work Specification indicates that "the use of theInaudit in such a case was at fact, the Work Specification best remote." Reply at 3.
simply states that the " auditor also may be called to provide expert testimony at public hearings in support of its findings." Work Specification at 1.
E l
J Electric and its attorneys in the preparation and conduct of the rate making proceedings -- viz. a representative of, or consultant to, a party who is preparing material in anticipation of litigation as well as a non-testifying expert. See 10 C.F.R. 52.740(b)(2). The Intervenors point 1 to no authority for their unstated proposition that the characterization of a document as " work product" may vary depending upon whether the author (s) have been immutably designated to appear as trial witnesses. There is no such authority.
II. INTERVENORS FAIL TO DEMONSTRATE UNDUE HARDSHIP.
Once it is established that the documents at issue are trial preparation materials, see Point I, supra, production may be ordered only if the party seeking discovery meets the burden of showing that they are " unable without undue hardship to obtain the substantial equivalent of the materials by other means." Fed. R. Civ. P. 26(b)(3); 10 C.F.R. 52.740(b)(2). The burden is on the Intervenors to I demonstrate that such exceptional circumstances exist. Wright & Miller 52023 at 196 (1970). See also Hickman v. Taylor, 329 U.S. 495, 512 (1946) (burden rests on the one who would invade work product privilege to establish adequate reasons to justify production through a subpoena or court order); United States v. Lisphy, 492 F. Supp. 35, 46 (N.D. Tex. 1979) (same); Texas Utilities Electric 3
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-Company (Comanche Peak Stream lE ectri c LBP-84-50, 20 NRC 1464, 1474 (1984) (same).
The-Intervenors have a like burden in seeking to overcome the "non-testifying expert" privilege which also protects'the prudence audit documents from discovery.
See. Opposition at 19-21. Federal Rule 26(b)(4)(B) provides that a party may not discover " facts known or opinions held
.by an expert who has been retained or specifically employed and.who by another party in anticipation of litigation . . .
is not expected to be called as a witness at trial" unless the party makes "a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by .
other means."
When a party The Intervenors have not met their burden.
can discover the " substantial equivalent of the material
[ protected by work product] by alternate means" it has no
" substantial need" for the privileged document and is not entitled to view it. In re Murphy, 560 F.2d 326, 336 (8th Cir. 1977). See Hickman v. Taylor, pupra, 329 at 509; Gay
- v. P.K. Linday Co., Inc._,
666 F.2d 710, 713 (1st Cir. 1981) cert, denied 456 U.S. 975 (1982).
Here, the substantial equivalent is available to the Intervenors. The historical material and information that TU Electric may have made is available to Cresap, which is not otherwise privileged, similarly available to the Intervenors upon a proper 1
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ . _ . . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ _ _ _ _ . _ _ . _ _ _ _ . . _ _ _ _ _ . _ _ _ _ _ _ _ _ . _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _____..________.)
J discovery request. The Intervenors then may find their own expert to interpret this data. This scenario differs fundamentally from those where an inability to obtain the substantial equivalent has been found to exist -- e.g.,
where a witness over time becomes unable to remember the details of an event, and one party obtained a contemporaneous statement from that witness. See Teribery
- v. Norfolk & Western Railway Co., 68 F.R.D. 46 (W.D. Pa.
1975).
Instead, the Intervenors' only attempt to make the required showing is to provide the blanket assertion that the cost and delay in having to conduct their own discovery and audit would result in undue hardship. This has repeatedly been rejected as legally insufficient. For example, the Court held in In Re: LTV Securites Litigation, 89 F.R.D. 595 (N.D. Tex 1981):
Potential duplication of effort and cost is implicit in every application of the work product rule. Unless the cost of such duplication is prohibitive, such cost will not, of itself, serve as
" undue hardship" within the meaning of Rule 26(b)(3). See 8 C. Wright & A.
Miller, Federal Practice and Procedure
$2024 (1970). Moreover, the class has submitted no evidence that would meet its burden of demonstrating prohibitive cost. (Citing Hickman v. Taylor).
Id. at 616.
The Intervenors' further argument that the disputed documents' asserted relevance to this proceeding makes them
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discoverable, in spite of the claimed privilege is patently Relevance is merely the starting point. A frivolous.
document may not be discoverable if it is not relevant to the subject matter in a pending action, Fed. R. Civ. P.
26(b)(1), but beyond that, a document may still not be discoverable if it is protected by a privilege. The method provided by the rule to defeat the privilege is to demonstrate that the failure to allow discovery would create an undue hardship. It is this burden that the Intervenors have failed to meet.
Finally, the asserted " countervailing policy" that the public health and safety concerns attendant on the construction and completion of a nuclear power plant justify overriding the work product privilege, Reply at 15-16, fails for a variety of reasons. First, it ignores the fact that the NRC has expressly adopted the work product privilege in the Rules of Practice notwithstanding that all nuclear power plant litigation implicates public health and safety concerns. The Intervenors have offered no basis on which the Board could conclude that the Cresap audit documents raise different or more substantial public health and safety concerns than other work product documents; nor can any logically be expected. Second, the Intervenors' argument is incorrect because, as TU Electric has reiterated, the non-privileged historical documents and witnesses which Cresap has consulted to perform its work are shielded 18 -
J neither from discovery nor from the Commission's regulatory (
functions. To the contrary, upon a proper discovery request, the non-work product historical material and information is fully available to the Intervenors.
Similarly,.the Permittees remain obliged to bring to the Commission's attention any factual matter of public health and safety concern within the meaning of applicable regulations, regardless of how such a safety concern may have come to their attention. There is thus no reason to fear that proper respect for the privilege afforded work product materials will in any way lessen the flow of safety or other regulatory data to the Commission.
III. CONCLUSION Notwithstanding the inordinate amount of paper which has now been exchanged on Intervenors' mot 1on to compel, the issues presented to this Board on this record are remarkably simple. TU Electric has resisted the production of certain documents by asserting a privilege expressly conferred upon it by the Rules of Practice and the applicable case law.
The discovering parties have not challenged the general availability or sanctity of that privilege in this proceeding but have instead questioned (A) whether it factually applies, and (B) whether it should be overridden by their claim of a particularly strong interest in the discovery.
A The issue presented with regard to Question A is whether TU Electric's primary purpose in commissioning the prudence audit was to support its upcoming litigation efforts in The only connection with a state rate making proceeding. b competent direct evidence on TU Electric's purpose are TU Electric's sworn answers to Interrogatories, the preamble to the Work Specification and the affidavit of a witness with personal knowledge of the original decisions to commission This the audit and served as its initial project manager.
consistent and unambiguous strain of evidence is bolstered by the Intervenors' previously made Judicial admission that the purpose of the audit was for the rate case litigation, and this Board's previous recognition that discovery forays into such an area were of questionable propriety. See Memorandum and Order (July 22, 1985) at 2. Inasmuch as there is no evidence to counter these additive facts, it follows that this Board is bound to accept TU Electric's position with regard to the applicability of the privilege.
With regard to Question B, the Intervenors' only argument is that they need to get the opinion work product of TU Electric's rate making experts in order to prepare to This argument is support their contentions before the NRC.
Even limited acceptance of insufficient as matter of law.
such reasoning on these facts would, moreover, threaten to subvert extremely important public policies recognized and The protected by the Commission's Rules of Practice.
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O position the Intervenors now urge upon this Board would effectively cripple the ability of any utility to appear before this Commission as an actual or potential licensee while at the same time trying to comply with its state laws regarding the proper and equitable establishment of a rate base for the service of its customers and shareholders.
-There is no warrant for such a distortion of settled principles. The Intervenors' motion must be denied.
TEXAS UTILITIES ELECTRIC COMPANY p ?.w:
William S. Eggeling John P. Dennis Robert J. Stillman Deborah S. Steenland Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 Attorneys for Texas Utilities Electric Company n c. c 1; '57 5:32 WC P 5 r;.M F0P5YTHE 5/W P A 3 E . O .I TEXAS UTILITIES COMPANY 2001 Styen Tower Dallas Texas 75201 NOTICE OF ANNUAL MEETING OF SHAREHOLDERS Aprill,1987 To the Shareholders of TEXAS UTILITIES COMPANY:
- The annual meeting of shareholders of TEXA3 UTIUTIES COMPANY will be held in the Cold Room of the Fairmont Hotel Ross Avenue and Akard Street. Dallas. Texas, on Friday.
May 15,1987, at 9:30 a.m. for the following purposes:
- 1. To elect a Board of Directors for the ensuing year; 1 To approve the selection of auditors for the year 1987;
- 3. To consider and act upon a shareholder proposal,if presented at the meeting. whtch appears in the proxy statement on pages 8 through 11; and
- 4. To transact such other b&siness as may properly come before the meeting and any adjourntnents thereof.
The Board of Directors has Exed the close of business on March 27,1987, as the tune us of which shareholders enutled to notice of, and to vote at, the meenng and any adjournments shall be determined.
If you cannot be present in person, PI. EASE SICN AND RETURN THE ACCOMPANY.
ING PROXY PROMPTLY. No postage need be afRxed to the reply envelope which is enclosed herewith for your convenience if it is mailed in the United States.
PETsa B.TINKHA.sl Secretary
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NA( 11 '97 9:32 UCP5 HAM FOR5Y NE 9/u PAGE.03 , ,
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TEXAS UTILITIES COMPANY 2001 Bryan Tower Dellas, Texas 75201 PROXYSTATEME.VT l . April 3,1987 A proxy its the accompanying form is solicited by the Board of Directors of TEXAS UTILITIES COMPANY for use at the annual meeting of shareholders to be held in the Gold Room of the Fairmont Hotel. Ross Avenue and Akard Street, Dallas. Texas, on Friday, May 15.
1987, at 9:30 a.m. and any adjournments thereof for the purposes set forth in the accompanying notice.
The close of business on March 27, 1987, has been fixed as the time as of which shareholden entitled to notice of, and to vote with respect to this solicitation shall be determined. At such date there were outstanding and entitled to vote 148,786,011 shares of common stock each share of which is entitled to one vote on all questions submitted to shareholden.
Any shareholdse may exercise the right of cumulative voting in this election of directors provided the shareholder gives written notice of such intention to the Secretary of the Company on or before the'd.iy proceding. the election. When exercising this right the shareholderis entitled to one vote for each share held' multiplied by the number of directors to be elected.and he may cast ullof his votes for a single nominee or spread his votes unong the nominees in any mannerdesired.
The cost of soliciting pro'xies will be borne by the Company. In addition to use of the mails, proxies may be solicited by directors, olilcers and regular employees of the Company in '
person or by telephone. The Company has hired Morrow or Co. to assist in the solicitation of proxies at an estimated ' cost of 49.500 plus disbunements. Shareholders may assist the Company in avoidin6 <xpenses in this connection by returning their proxies promptly.
Any proxy delivered pursuant to this solleitation is revocable at the option of the person executing the same, at any time prior to the exercise thereof. The shares represented by any proxy duly given as a result of this request will be voted in the discretton of the persom N named in the proxy unless the shareholder specilles a choice by means of the ballot space on the proxy,in which case the shares will be voted accordingly.
This Notice. Proxy Statement and form of proxy are being mailed or given to shareholders on or about April 3,1987.
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. . 1 198& ANNUAL MEETING SHAREHOLDERS' PROPOSALS All proposals from shareholders to be considered at the annual meeting scheduled for May W,1988, must be received by the Secretary of the Company,2001 Bryan Tower, Dallas, Texas 15201, not later than the close of business on December 4,1987.
ELECTION OF DIRECTORS ft is theintent of the Board of Directors that the penons named in the proxy will vote your shares in favor of the nominees foe directors listed below, all of whom have been nominated by the Nominating Committee, unless authority is withheld. All of the nommees are at present members of the Board of Directors. The persons named in the proxy may cumulate the votes represented thereby and in case any such nominee shall become unavailable, which the Board of Directors has no reason to anticipate, may vote for a subetitute.
'Ihe names of the nominees for the oEce of director for the ensuing year and information about them, as furnished by the nominew themselves, are set forth below:
served .e nu.inem eseevienee dunne ones see yenre
.%ene g dereseernuiee Jamee K. Dolwy 8T 1961 Reetred Cherman. Weds Farge at Coatpany a bank holdins companye
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- A 0tnoctor of. writs Farso ar Company and wells Farso 8ani. and a Trusse,s wells Farge Mortsmee sad Equitv Trust.
Jaele W. Evans (Ln (3) t4H5) ...... . 6+ ". 1966 Cholsmea of the Bourd. Chief Esecutive Omcer and Director. Cullum Compeues. tae. . ford and deus chain). Maor. City of Danas.1991 1963. A Director of Chde's. Ine, and Republic 8 mon Dallas.
i SS 1963 Charman et the unued and Chief Esecutive of the Compun, unce J. S. Farnnstonis) . Februarv twrtr. pr4r thereto President of the Cornpany unce %v i
19% pnor trweeto Pre.Nient and Chief Esecuene of Duitas Power &
U6ha a divisam of Tetas Utilittee Elecme Company, a nues. diary of i
' the Company. .mee I976. A Director of Texas Ledities Doctric Com-( party.
William M. Cnan 60 1966 Corpetute Jirretur eid micitment odWsoe. President. The mig (1) i 3: s 4i t s) . .
Compum. Fweutne he Prendent iuntil Avaust 194. cid Chair- .
,A manof the FinanceCwnmittees tunn!Wrch l9% of the ti rtfore '
Fire Insurance Omnpuni and Subsidtanes. A Dweetor of The llart.
- ford Fire Insurmice Compimy. Hertford %uonal Corpuration .pd i New England Aswt %nagement Company. {
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...'?- - :+3 Served as Sunse esportenee dunns pese A., ...r.
g g diesseerunse Atfredin Jr.e L983 as Vlee Chadtman of the llourd of the Cmnpun..
ttuel S. Hulsey.Jr. til . os 1966 President of the Company from 1973 until 1991 Vice Chiurm.in ex the Board of the Company from IMI unni 196.
Wrpret N. Maaer D(reeter.Clat W. Mureheson.Sr. Chear of Free Enterprue and Pmfes.
40- 1994 itii3) 4)($n........ ser. 86eanodieel Engineerms Program. College of Enoneenna. The tlniversity of Teens at Ausam since.lML Assntant Director. Enerey Reeserob Inattruter, Columbia. South Caruhna. INL prior iheretr.s Professerof 36eethies.Uniseritty of Detroit. Detroit. itichigan imeir 1970.
IM7 Prendent of the Company since Febru.sr) LW. pnnr thereto 10ccu-Ert r .%)e s 21 ... 4e tiveYlee President of the Company since Iwt 4 ihrectme e4 Tri.s.
Uttlittes Eleetete Company. a subsidiary at the ().mpan.t t br(.= K. Ferry 57 LMS Oil and ens interests, praate irnestments. Chwi ISccuene oineer.
.t. 1. 4...D . ..... Perry Management. Inc Betona Austinn. Inc. Rnerenurw Desel.
opment. Inc. Munalung partner. Perrv Espluration t'nino nv anis Shamroels Cornpeny. Ch rman MikuA (ktew. (MtM. Di.
reeter. Compressor 59 toms lae. and Milank4kicm CNrles N. Prothre Own r. Perhans.Prochro compunv .ince two .mi pn=hstam runen.
80- 1984 e tiiali3)(44 (5) .... ing commeretut properties . Chuerrnan of ttle 16aurd of Interfint penh, Wichita Falls. Tousa unct! january iM. .ind 4 (hreetar e4 (n.
terftret Corp wattam H. Sear .
( D (t) (3) (4) f 5) .... 67 wr* Invesernenas. Aectred as Chairmun and Chief F.secutne Odicer of
- j. $sushweseem Life insurunce Compimv in Detuber lW. A Directar of InterFtric Corp. A. H. 8cle Corp . Reenememn Fe.umment Inc.
- . andwd. Mart secre, lae.
(1) Memberof Audit Committee.
(2) Memberof Executive Committee.
(3) Member of Finance Committee.
(4) Member of Nominating Committee.
(5) Member of Organization and Compensation Committee.
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.f During 1986 the Board of Directors held Eve meetings.The committees of the Beard of 1*
Directors and the membership of each commictee are shown above. During 1986 all of the Directors attended 75% or moreof the aggregate of the-Board of Directors meetings and the eneetings of the Committees on which they serve except for Mr. Seay. The Executive 'l Committee exercises the authority of the Board in the interval between meetings of the l Board, this Committee held no meetings in 1986. The Audit Committee nominates to the Board, for approval of shareho'.derr at each annual meeting, a firm of independent certised 1 public accountants to audit the books of account and records of the Company and to perform sucir othec duties as< this Committee may prescribe or approve, receives the reports and comments from such independent accountants, reviews the adequacy of intemal control. j reviews theaccounting principles employed in AaanM reporting, and takes any action with respect thereto as may seem appropriate, reports to the Board of Directors upon its Endings and recommendations and performs such other duties as may be assigned to it from time to
- time by the Boards the Audit Committee held two meetings during 1986. The Organization and Compensation Committee reviews and establishes the duties, tities and remuneration of ;
oScers of the Company; this Committee held two mutings in 1986. The Finance Committee reviews and recommends to the Board, for its consideration, major Snancial undertakings and policies and performs such other duties as may be assigned to it from time to time by the
. Board; the Finance Committee held two meetings during 1966. The Nominating Committee selects and recommends to the Board, foe its considersdn, persons as nominees for election sa directors 06 the Company and performs such other duties as may be assigned to it from time to time by the Board the t Nominating Committee held one meeting in 1986.
Shareholders may recommend nominees fordirectors to the Nominating Committee by addressing the Secretary of the Company, 2001 Bryan Tower, Dallas, Texas 75201.
Non.oEcer directors were compensated in 1986 by a retainer fee at the annual rate of
$15,000 plus $600 for ency Board meeting attended and $J00 for each committee meeting attended. Directors who are o8cers of the Company do not receive fees. All'directen are reimbursed forexpenses. '
Texas Electric Service, a division of Texsa cilities Electric Company, a subsidiary of the l
l Company, in 1971 enterad into a twenty. year lease of an oEce building in Wichita Falls, Texas, at an annual rental of approsmately $152,000, from a group of individuals, one of J whom is Charles N. Prothro, a director of the Company, who owns a 25% interest in the t
property. The Company believes that the terms of this lease are at least as favorable as could N have been obtained from others for,simi!*r facilities. (,
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l BENEFICIAL OWNERSHIP OF COMhtON STOCK OF TIIE COMPANY Each nominee for director, and directors and oEcers of the Company as a group.
reported beneficial ownership of common stock of the Company as of February 29.1987, .a follows:
%ndm nr.l cn
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.................... . I .IIOO f ames K. OQhey' . . . . . . . . . . . . . .
... . .... 1.000 Jack W. Evans . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
J. S. Farrington. . . . . . . . . . . . . . . . ..... ....... . 1410 l
. . . . .......... . 2.000 William ht Grian . . . . . . . . . . HM6 Burl a. Hulsey.Jr. . . . ........... .. ... .
.... 917 Margarct N. Maxey . . . . . . . .. ....... .. .
6." W Erle N y e . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
%o Charles R. Perry . . . . . . . . . ........ ..
.. .. . . . 4. lfW Charles N. Prothro . . . . . . . . . . . . . . . .
William H. Seay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 2.00" All directors and officers as a group i14). including thox-
. .. ............. .. . $1N4H named above . . . . . . .
(1) The named individuals, and all directors und.oEcers us a group, have sole soting und investment power for the shares of corrunon stock reported except for :).31:1. 2.32~ and 10,668 shares held under the Employee Stock Ownership Plan of the Te2.ua L*tilitim s
Company System for the accounts of Messrs. Farrington and N>e and all director. and l
olilcers.aa a group, respjtivf y, as to which.they have sole voting power only.
I ownership of such common stock constituted less than 1% of the outstundmg shares for each I Individualdirecto'f and for directors and oEcers as a group. The Company has no know fedg of any per9n wno beneftefally owned more than 5", of the common stock of the Company a of February 28,1987.
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1 EXECUTIVE COMPENSATION The Company and its subsidiaries paid cash compensation during 1936 to the following executiveoEcors for services in all capacitfes:
Pfamieoffadividuel.
and numeer of Capee(ty in *Mch persons la argup Can eemeenestion ens reeened Quenpem tinn Ferry C. Brite.drr. . . . . . .. . . . . . . . . . . . . . .. . .. ...
Chairman of the Board and Chicf s 64,tR7 Esecuthe of the Compuni 1,5. Famnstom .. . . . . ...
................ . . ........ President olthe Campany. n2.vn)
Erle Nye. . ... .. .... . ....
f.aecunw V6ce Prudentof the 14tm Company.
such et 0 Sperwe . . .
Presidens of the Generatma 140 es D m on. =
R. L C mpbell . .. . ... ... . .. .. .
Pree6 dent of Texas Power er Lasht. 1 m ust All eveenttve oNicers of the Cornpeny as 4 group 195 it.clusting tho.e named .new . . ... ...
i.ca.m Under the Employees' Thrift Plan of the Texas Utilities Company System, all employees with at least one year of full time service with the Company or any of its subsidiaries muy invest up to 12% of their regular salary or wages in common stock of the Compuny. a Un(ted States Govemment Bond fund, a guaranteed 8xed income fund, an equity mutual fund or a percentage in each. Employer. corporations make a contribution to each participant's secount of 409tr,50% or 60% of the, employee's savings, up to the 696 level, depending upon length of service, which arnount is invested in the common stock of the Company. During 1988, employer contributions under this Plan made for all executive oEcers of th'e Company as a group (9) amounted. to 562.448 including contributions made for Messrs. Brittain.
Farrington. Nye, Spence and Carnpbell in the amounts of $16,350, 311,970, 59,480. $7,470 and 38,280, respectively.
Under the Employee Stock Ownership Plan of the Texas Utilities Company System. ,
which covers substantially all employees, the Company and its subsidiaries base elected additional Federal income tax credits to the extent that amounts equal to such credits have been contibuted to the Plan. The Plan Trustee uses such contributions to purchaw :ommon stock which is allocated to participating employees in proportion to their compematmn.
During 1988 employer contributions made for the Plan Year 1985 for all executive oFicen of the Company as a group (9) amounted to 14.275. including contribution > made for Monts, l Brittain Farnngton, Nye. Spence and C.impbellin the amounts of S500, $%n. 8500. M00 and i
. S500. respectively. '
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- m, The Company and its subsidiaries maintain retirement plans quali6ed under upplieuble provisions of tho' Internal Revenue Code. Annual retirement benents are ecmputed as follows: Foreach year of accredited service prior to age 65,1.3% of the Erst 37,800 plus 1.3%
of the excess over $7,800 of average annual earnings received by the participant during his three years of highest earnings. Such benents are not subject to any reduction for Social -
Security payments. Amounts reported as salaries for speciaed officers appronmate earnings as deaned by the retirement plans. As of February 28,1987, years of accredited service under the plans for Messrs. Brittain, Farrington, Nye, Spence and Campbell were 36, 27. 24, 20 and 34, respectively. The table below illustrates the annual benent payable at retirement after age
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$ 7,188 1 10.782 S 14.376 s 25,000 14.688 %2,032 29.376 50.000 W,376 29,688 44,532 100,000 59,688 89,531 119.376 200,000 119.688 179,532 239.376 400,000 299,376 L49,688 224,532 500,000 BeneSts payabk in 1983 and subsequent yours from a quallSed retirement plan were limited by the Tax Equity and Fiscal Responsibility Act of 1982 ITEFRA1. The Comptmy maintains an unfunded Supplemental Retirement Plan to provide for the payment of retirement benents calculated in accordance with the foregoing retirement plan formula i
which would otherwise belimited by the provisions -
of TEFRA. ,
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SELECTION OF AUDITORS The firm of Deloitte Haskins & Sells, independent certiSed public accountants, has been the outside accountants for the Company since its organization in 1945 and for certain of the subsidiaries since 1932, including the last fi: cal year. Representatives of Deloitte Haskins &
Sells areexpected to be present at the annual meeting,and will have the opportunity to make a statement, if they desire to do so, and to respond to appropriate questions.
The Audit: Committee has nominated to the Board of Directors for its consideration the firm of Deloitte Haskins.& Sells to actas independent accountants for the Company for the year 1987and, subject to the approval of shareholders at the annual meeting, the Board has selected that Erm to audit the books of account and records of the Company and to make a .
report thereon to shareholders. The persons named in the proxy will, unless otherwise :
instructed thereon, vote your shares in favor of the following resolution which will be submitted for consideration: >
Rasot.vsD that the selection of the firm of Deloitte Haskins & Sells, independent certiSed public accountants, to audit the books of account and records of the Company .
for the year 1987, to make a, report thereon "To the Shareholders of Texas L*tilities Company", and to perform other services, be, and it hereby is, approved.
The Board of Directors Reeommends a Vote FOR The Approvalof Auditors.
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.5 SHAREHOLDER. PROPOSAL
.T Two. shareholders, the Sisters of Saint Mary of Namur and the Medical Mission Sisters, who own a. total of 450 shares of the common stock of the Company, have advised the Company that they will introduce the following proposal for action at the Annual Meeting.
The proposal is reproduced below in the form it was received from the proponents, and the ,
Company is not responsible for the accuracy or inaccuracy of any statements made in the proposal or the supporting statement. After reviewing the proposal, management of the Company and the Board of Directors have concluded that they cannot support the proposal for the reasons stated under the heading Recommendation of the Board of Directors to Vote ACA!NST This Shareholder Proposal. ,
WHEREAS Comanche Peak nuclear project, estimated to cost 9779 mil-lion in 1974, has a current cost estimate of S6.7 billion. .g
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WHEREAS Texas Utilities' credit ratings have been downgraded by Moody due to problems with Comanche Peak.
WHEPEAS Texas Utilities has sued the minority partners asking a state district court to uphold Joint ownenh!p and force the part-
. ners to continue making payments. -
WHEREAS the minority partners have sued Texs4 Utilities, asking that the agreement between the owners of the project be modi.
Eedior rescinded and that the plaintifs be awarded dam-ages. They state that the utility was already aware of numer-ouade8eiencies in the plant' construction when the minori-
, ty partners joined the project.
WHEREAS Texas Utilities has been assessed 3450,000 in anes by the Nuclear Regulatory Commission related to Comanche Peak's design problems, quality assurance / quality control and construction, and harassment and intimidation of work-en.
WHEREAS Texas Utilities has been buying power to boost their reserve margin because of the delay in Comanche Peak going on line, .- 3
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! The Management Analysis Co. of SEn Diego included the WHEREAS following areas of concern in a 1978 report: overall quality assurance, denigrr change controls, qua!(ty control inspec-tions, and quali8 cations and training of impection personnel '
and the Nuclear Regulatory Commission found the same arena cf concern for the time frame of 1984 to the present, RESOLVED that the shareholders request the Board of Directors of Tex- \
as Uti!Ities to provide the shareholders, by September,1987, with an independent review (prepared at reasonable cost %
and omitting proprietary information) of Comanche Peak #,
meluding the fellowing:
N 1. the pros and cons of cancellation and/or conversion of the plant, l
l 2. report on the studies done on management prudency with regard to the history of the project.
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- 3. any studies done to hold contracters, architects, engt. .
neers liable for cost overruns. '
- 4. any other factors which will affect the cost of Comanche Peak's completion.
SUPPORTING STATEMENT Witir the continuing problems at Comanche Peak, Texas Utilities should consider what the alternatives are. The plant has been a source of anos, of reduced credit ratings, and negative publicity for thecompany.
IF YOU AGREE, PLEASE VOTE "FOR" THIS PROPOSAL, OR '
'AB6TALY IF THERE ARE ONLY SOME POINT 5 WITH WHICH YOU AGREE. THANK YOU. 1 Recommendation of the Board of Directors to vote AGAWST This Shareholder Proposah ComanchePeak is a cornerstone of theCompany's long. term resource plan for providing continued reliable electric Sarvice. Comanche Peak is needed now to serve customers, and the need for the plant will be moreacute in coming years. In 1990, with both units operating, the Company's projected reserve margin will be 20.5%, essentially the margin traditionally needed to assure reliability.
It is less expensive to complete Comanche Peak than it would be to build any other form of baseload generation and place it in service during the time when the capacity is needed.
The plant's estimated cost is about average for nuclear units scheduled for operation in the 1987-1990 time frame, and the units can be placed in service without a substantial impact on rates. .
The Company initiated an extensive reinspection and corrective action program to address all deign and construetfon concerns and to provide usurances as to the safety of Comanche Peak. Through this program, the Company believes substantial progress has been g
- made toward obtaining an operating license for the plant. Because of this and because the
\ plant is nearing completion at a time when it is urgently needed, study of cancellation and/or "
conversion of die plant would be unnecessarily costly and non. productive.
- Que' scions of management prudency and responsibility for cost increases are aiready under review. An independent consultant is performing a complete analysis of management prudency. The causes of deGefencies in the plant's construction are being assened in the h)a ongoing reinspection and corrective action program. Findings in these areas will be {
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edGM$s and unnecessarily costly. presented in one or more publica.. tforums. Therefore
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factors afecting Comanche Peak's cost that have in annual and quarterly reports to shareholden and othernnual ,
periodic filings such a provide,without charge, a copy ofits current Form .
would be an inappropriate duplicatione value. of ents eFort, undul <
The Board of Directors Recommends a Vote ACAINST This Shareholder . '
OTHER BUSLNESS before the meeting andit hu not been informed othe of any meeting by others. However,if any other matten properly come before the m intentof theBoard of Directors that the persons named proxy in accordance with the8rjudgment in such matters.
in tha proxy will vote p ant to the Dated: April 3,1987 ffyoucannot bepresentin person,
please sign and return the accompanying proxy promptly.
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00ChE TEi-UiNPC CERTIFICATE OF SERVICE 17 MY 22 PS:03 I, William S. Eggeling, hereby certify that on May 18, 1987, I made service of the "Permittees' ResponsetoConshat[dQ;,g' BRANCH Intervenors' Reply Re: Gregory Discovery (Sets 5 & 6)" by mailing copies thereof, postage prepaid, to:
l Peter B. Bloch, Esquire Mr. James E. Cummins Chairman Resident Inspector Administrative Judge Comanche Peak S.E.S.
Atomic Safety and Licensing c/o U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory P.O. Box 38 Commission Glen Rose, Texas 76043 Washington, D.C. 20555 Dr. Walter H. Jordan Ms. Billie Pirner Garde Administrative Judge GAP-Midwest Office 881 W. Outer Drive 104 E. Wisconsin Ave. -B Oak Ridge, Tennessee 37830 Appleton, WI 54911-4897 Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Lawrence J. Chandler, Esquire Mrs. Juanita Ellis Office of the Executive President, CASE Legal Director 1426 S. Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C. 20555
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Ellen Ginsberg, Esquire I Renea Hicks, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division U.S.Board Panel Nuclear Regulatory Commission P.O. Box 12548, Capitol Station Washington, 78711 D.C. 20555 Austin, Texas Anthony Roisman, Esquire Mr. Lanny A. Sinkin Suite 600 Christic Institute 1401 New York Avenue, N.W. 1324 North Capitol Street Washington, D.C. 20005 Washington, D.C. 20002 Dr. Kenneth A. McCollom Mr. Robert D. Martin Administrative Judge Regional Administrator 1107 West Knapp Region IV Stillwater, Oklahoma 74075 U.S. Nuclear Regulatory Commission Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 Elizabeth B. Johnson Geary S. Mizuno, Esq.
Administrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director P.O. Box X, Building 3500 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Oak Ridge, Tennessee 37830 Nancy Williams Cygna Energy Services, Inc.
101 California Street Suite 1000 San Francisco, California 94111 sb s be '
William S.'E [elidg