ML19305C877

Motion to Issue Order Compelling Midwest Electric Cooperative & General Manager P Wetzel to Produce,For Insp & Copying,Documents Responsive to Subpoena Served on Wetzel.Draft Subpoena & Certificate of Svc Encl

ML19305C877
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	04/07/1980
From:	Green D BAKER & BOTTS, HOUSTON LIGHTING & POWER CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19305C871	List: ML19305C868 ML19305C877
References
NUDOCS 8004100560
Download: ML19305C877 (15)

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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ,

In the Matter of ) ,

)

llOUSTON LIGIITING & ) Docket Nos. 50-498A i POWER COMPANY, ET AL ) 50-499A

)

(South Texas Project, )

Units 1 and 2) )

)

)

TEXAS UTILITIES ) Docket Nos. 50-445A' GENERATING CO. , ET AL ) 50-446A

)

(Comanche ~ Peak Steam )

Electric Station, )

Units 1 and 2) )

IlOUSTON LIGilTING & POWER COMPANY'S l

MOTION TO COMPEL PRODUCTION OF DOCUMENTS  :

SUBPOENAED FROM Ti!E FILES OF Ti!E MIDWEST ELECTRIC COOPERATIVE IIouston Lighting & Power Company (Houston) moves the Atomic Safety and Licensing Board (the Board) to issue an Order compelling the Midwest Electric Cooperative (Mid-west) and its General Manager, Mr. Parker Wetzel, to produce for inspection and copying the documents responsive to the subpoena served on Mr. Wetzel in this matter.

On February 1, 1980, the Department of Justice l

(the Department) filed its Fourth Supplemental Response to

!!ouston's Second Set of Interrogatories, adding to its witness list the name of Mr. Parker Wetzel, General Manager

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of the Midwest Electric Cooperative in Roby, Texas. Houston requested and the Board issued a subpoena (Attachment A) directed to Mr. Wetzel, which required him to appear on February 22, 1980, and bring documents responsive to the subpoena. Shortly before his deposition, Mr. Wetzel notified counsel for Houston that he was to undergo an operation and had been advised by his doctor not to travel to Dallas for his deposition on the 22nd. Counsel for Houston contacted counsel for the Department and obtained an agreement from the Department that Mr. Wetzel's deposition could be re-scheduled af ter the formal close of factual discovery in this matter in return for Houston's agreement not to press for Mr. Wetzel's deposition on the 22nd.

Counsel for Houston is currently negotiating the re-scheduling of Mr. Wetzel's deposition with the Depart-ment. However, counsel for Houston has been notified by Mr.

Wetzel's attorney, Mr. Robert O'Neil, that Mr. Wetzel will not comply with the subpoena issued to him with respect to I

the production of documents at his deposition. Mr. O'Neil has taken the same position with respect to documents sub-poenaed from another of the Department's witnesses, Mr.

Elton McGinnes, whose deposition was taken on February 21, 1980. Mr. McGinnes' refusal to produce documents at his deposition, and his counsel's subsequent refusal to prodoce any documents with or without a Protective Order, is the

i subject of a separate motion to compel filed by Houston.

[See Houston Lighting & Power Company's Motion to Compel Production of Documents Subpoenaed from the Files of the i

Southwest Texas-Electric Cooperative.]

It is Houston's position that the documents Mr. [

Wetzel intends to withhold go to the heart of the testimony  ;

I that the Department intends to elicit from him. This was-  !

certainly true in the case of Mr. McGinnes' testimony, and

Houston believes that Mr. Wetzel's testimony will be virtually identical to that of Mr. McGinnes.1/

Houston's right to cross-examine and obtain dis-covery from Mr. Wetzel will be severely impaired unless Mr.

i Wetzel is compelled to produce the documents requested in the subpoena served upon him. No witness in this proceeding has been permitted to ignore the subpoenas of the parties, nor should such behavior be countenanced. Consequently,.

t-Houston requests that the Board enter an Order requiring the Midwest Electric Cooperative immediately to produce the s

documents responsive to the subpoena served upon Mr. Parker

- Wetzel. In the alternative, Houston requests that the Bo.cd order that if such documents are not produced,-Mr. Wetzel 1/ Houston has attempted to negotiate the production of.the subpoenaed documents under a Protective Order with counsel

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~for both of the recalcitrant witnesses, to no avail.

Neither of the witnesses have sought to quash their_sub- .

poenas or to otherwise seek protection beyond their flat refusal to produce any of the subpoenaed documents.

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and all other members or. representatives of the Midwest Electric Cooperative may not testify at the hearing, and that the deposition testimony of Mr. Wetzel be stricken from the record in this matter.

Respe fully submitted, l

/ds b Green '

cf Attorney for liouston Lighting

& Power Company OF COUNSEL:

Baker & Botts 3000 one Shell Plaza llouston, Texas 77002 Lowenstein, Newman, Reis Axelrad & Toll 1025 Connecticut Avenue, N.W.  ;

Washington, D. C. 20036

-Dated: March 26, 1980 4

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E- J I ATTACHMENT A h

UNITED STATES .0F AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD .

In the Matter of )

)

- HOUSTON LIGHTING & POWER COMPANY, ) Do'cket Nos. 50-498A et al. ) 50-499A

)

(South Texas Project, ), ,

Units 1 and 2) )

)

TEXAS UTILITIES GENERATINO ) Docket Nos. 50-445A COMPANY, et al. ) 50-446A

)

(Comanche Peak Steam Electric )

Station, Units 1 and 2) )

SUBPOENA TO: Parker Wetzel Midwest Electric Coop P.O. Box 518 Roby, Texas 79543 YOU ARE HEREBY COMMANDED, pursuant to the Atomic Energy Act of 1954, as amended, and 10 C.F.R. 52.720, to appear at the (2500) Bryan 'Itwer, 2001 Bryan StreetIn the City of . Dallas,

! 'Ibxas . on the 22nd . . day of . February,

, . . -1980 i

9:00 A.M. (and thereafter from day to day, if necessary) to at . . . . . .

testifyLby' deposition on oral examination in the above-entitled action, and to bring with you the document (s) or objects described in the attached schedule. Your testimony _will be required as to.the. testimony you may give in the-trial of this. action,Jall

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1 matters relating.thereto, and all subject matters covered in~the

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o attached schedule.

BY ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD .

By

. . . . . . . . . . , 19 . .

Douglas G. Green Attorney for Houston Lighting

& Power Company LOWENSTEIM, NEMMAtl , REIS, AXELRAD L TOLL 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 (202) 862-8400 10 C.F.R. 2.720 ( f)

On motion made promptly, and in any event at or before the time specified in the subpoena for compliance by the person to whom the subpoena is directed, and on notice to the party at whose instance the subpoena was issued, the presiding officer or, if he is unavailable, the Commission may (1) quash or modify the subpoena if it is unreasonable o'r requires evidence not relevant to any matter in issue, or (2) condition denial of the motion on just and reasonable terms.

b h SCHEDULE TO SUBPOEUA

1. All documents which set forth, contain information about, refer or relate to instances of competition in any phase of the electric utility industry involving: (3 ) Houston Lighting & Power Company and/or (2) Texas Power and Light Company and/or (3) Texas Electric Service Com-pany and/or (4) Dallas Power and Light Company; or to any communications between Midwest Electric Coop, its agents, or employees and any of the aforementioned entities.

}

2. All documents provided to or received from the U.S. Depart-ment of Justice or the U.S. Nuclear Regulatory Commission or any of their consultants or designated witnesses in connection with this pro-ceeding, or the licensing of any nuclear powered electric generation plant. All documents referring or relating to or setting forth meet-ings or conversations with any attorney, consultant, or designated wit-ness for or employee of the U.S. Department of Justice or U.S. Nuclear Regulatory Commission.

3. All documents provided to or received from an attorney for or an employee of: (1) the Public Utilities Board of the City of Browns-ville, Texas; (2) Tex-La Electric Cooperative, Inc.; (3) the Committee on Power for the Southwest; (4) Tex-La of Texas, Inc.; (5) C. H. Guernsey Corporation; (6) Central and Southwest Corporation and/or any of its subsidiaries including without limitation Central Power and Light Com-pany, West Texas Utilities Company, Public Service Company of Oklahoma and Southwestern Electric Power Company; (7) any other party to this proceeding; (8) any municipality, cooperative, government agency, or entity which operates or proposes to operate electric generation, trans-mission, or distribution facilities in any of the States of Texas, New Mexico, Oklahoma, Arkansas, and Louisiana or in the Republic of Mexico; and (9) any designated witness in this proceeding. Any documents refer-ring or relating to or setting forth meetings or conversations with any of the aforementioned entities or individuals.

4. All documents referring or relating to or setting forth evalua-tions as to the benefits or detriments of ownership, or any other form of participation, in any nuclear powered electric generating plant by any electric utility, municipal system, electrical cooperative, or com-bination thereof.

5. All documents referring or relating to or setting'forth the desirability, feasibility, benefits or detriments of interconnecting the electric systems in the Texas Interconnected Systems and the Electric Reliability Council of Texas and (1) the Southwest Power Pool, and/or (2) Western Systems Coordinating Council.

6. All documents referring or relating to or setting forth any adverse effects resulting from the present lack of interconnections between the Texas Interconnected Systems and/or the Electric Reliability Council of Texas with (1) the Southwest Power Pool and/or (2) the Western S1' stems Coordinating Council.

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7. All documents referring or~ relating to or setting forth each. i bulk power supply plan prepared by or for Midwest Electric Coop since -;

January 1, 1973.  ;

l' 8. All documents referring or relating to or setting forth each transmissi'on study developed by or for the Midwest Electric Coop ~ in connection with any of the bulk power supply plans covered in item ,

number 7 above, i 1

9. All documents referring or relating' to or setting forth corre- .

spondence or contracts between Midwest Electric Coop and any electric i

utility or electric cooperative concerning the purchase and/or sale of l clectric power.

j 10. All documents referring or relating to or setting forth any '

correspondence or contracts between Midwest Electric Coop and any

. electric utility or electric cooperative concerning the purchase and/or l

sale of fuel to be used for the generating of electric power. ,

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Instructions The period of time for which documents are reauested in-cludes the entire period from January 1, 1970 to the date on which documents are made available for inspection, and copying by Houston Lighting & Power Company or its representatives.

Houston Lighting & Power Company requests'that the Keeper of the Records identify the specific reauest or reauests to which each document is responsive. Where possible, the Keeper of the Records is reauested to maintain the intecrity of its filing and recordkecoing systems by producing together documents responsive to this. subpoena which are found together in the Keeper of the Records' files.

If you claim that any document requested hereunder is privileged, with respect to each such document, please i

provide the following:

(a) date; (b) type of document; (c) identity of author and addresses; (d) present location and custodian; (c) any other description necessary to enable the custodian to locate the particular document; (f) the basis for the claimed privilege; and (g) a detailed description of the nature of any judicial orotection alleged to be necessary to protect the privilege or confidential nature of any such document.

" Documents" means, without limiting the generality of its meaning, all or original (or copies where originals are unavailable) and non-identical cooies (whether different from originals by reason of notation made on such copies or otherwise) of all written, recorded or graohic matter, however produced or reproduced, whether or not now in existence, however produced or reproduced, whether or not  !

now in existence, of correspondence, telegrams, notes or sound recordings of any type of conversation, meeting or conference, minutes of directors' or committee meetings,

. memoranda, inter-office communications, studies, analyses,

. notes, books, records, reports, summaries and results of-investigations.and tests, reviews, contracts, agreement,-

pamphlets, diaries, calendar or. diary entries,-maps,

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i graphs, charts, statistical records, computer data, or papers similar to any of the foregoing, however denomina-ted, including preliminary versions, drafts or revisions -

of any of the foregoing and any supporting, underlying or preparatory material.

h b RETURM ON SERVICE Received this subpoena at............................on -

...................and on .................at..........

................... served it on the within names.......

...................by delivering a cooy to h.....and tendering to h...the fee for one day's attendance and the mileage allowed by law.

Date.............. 19.... By..........................

Service Fees Travel....................$

Services..................$

Total.....................$

Subscribed and sworn to before me, a..................

this......... day of...............,19.....

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I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TI!E ATOMIC SAFETY APD LICENSING BOARD ,

In the Matter of )

) -- ,

IIOUSTON LIGilTING & POWER COMPANY, ) Docket Nos. 50-498A et al. ) 50-499A

)

i (South Texas Project, Units 1 )

and 2) )

)

)

TEXAS UTILITIES GENERATING COMPANY ) Docket Nos. 50-445A et al. ) 50-446A

' )

(Comanche Peak Steam Electric )

- Station, Units 1 and 2) ) ,

r i

CERTIFICATE OF SERVICE i i

l I IIEREDY CERTIFY that copies of the foregoing: ,

llOUSTON LIGIITING & POWER COMPANY'S MOTION TO COMPEL PRODUCTION OF l

DOCUMENTS SUBPOENAED FROM TIIE FILES OF TIIE SOUTilWEST TEXAS ELECTRIC COOPERATIVE and llOUSTON LIGi! TING & POWER COMPANY'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS SUBPOENAED FROM Tile FILES OF Ti!E MIDV"<T ELECTRIC COOPERA- {

TIVE were served upon the following persons, by hand , or by deposit in j i

i the United States Mail, first class postage prepaid, this 26th day of March 1980.

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• Marshall'E. Miller, Esquire Frederic D. Chanania, Esquire c g' U.S. Nuclear Regulatory Commission Michael B. Blume, Esquire 1 Washington, D.C. 20555 Ann P. Hodgdon, Esquire U.S.-Nuclear Regulatory Commission

• Michael L.-Glaser, Esquire Washington, D.C. 20555 1150 17th Street, N.W.  ;

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

• Sheldon J. Wolfe, Esquire Officer U.S. Nuclear Regulatory Commission . Central Power and Light Company

Washington, D.C. 20555 Post Office Box 2121 Corpus Christi, Texas 78403 Atomic Safety and Licensing Appeal Board Panci G.K. Spruce, General Manager U.S. Nuclear Regulatory Commission City Public Service Board Washington, D.C. 20555 Post Office Box 1771 San Antonio, Texas 78203

• Chase R. Stephens, Supervisor (20)

Docketing and Service Branch Mr. Perry G. Brittain U.S. Nuclear Regulatory Commission President Washington, D.C. 20555 Texas Utilities Generating Company 2001 Bryan Tower Mr. Jerome D. Saltzman Dallas, Texas 75201 Chief, Antitrust and Indemnity i Group G.W. Oprea, Jr.

U.S. Nuclear Regulatory Commission Executive Vice President Washington, D.C. 20555 Houston Lighting & Power Company Post Office Box 1700 l

J. Irion Worsham, Esquire Houston, Texas 77001 Merlyn D. Sampels, Esquire Spencer C. Relyea, Esquire R.L. Hancock, Director Worsham, Forsyth & Sampels City of Austin Electric Utility 2001 Bryan Tower, Suite 2500 Post Office Box 1086 Dallas, Texas 75201 Austin, Texas 78767

, Jon C. Wood, Esquire Joseph Gallo, Esquire d

Matthews, Nowlin, Macfarlane Robert H. Loeffler, Esquire  ;

& Barrett David M. Stahl, Esquire 1500 Alamo National Building Isham, Lincoln & Beale San Antonio, Texas 78205 1120 Connecticut Avenue, Suite 325.

Washington, D.C. 20036

( Charles G. Thrash, Jr., Esquire E.W. Barnett, Esquire .

Michael I. Miller, Esquire Theodore P. Weiss, Esquire James A. Carney, Esquire i Sarah Welling, Esquire J. Gregory Copeland, Esquire Baker & Bq.t ts Martha E. Gibbs, Esquire 3000 One Shell. Plaza Isham, Lincoln &-Beale Houston, Texas 77002 One First National Plaza Suite 4200 R. Gordon Gooch, Esquire Chicago, Illinois. 60603 Steven R. Hunsicker, Esquire Baker'& Botts 1701 Pennsylvania Avenue Washington, D.C. 20006-

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h 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. G. 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 Route 6, Building 102 Debevoise & Liberman Victoria Regional Airport 1200 Seventeenth Street, N.W. Victoria, Texas 77901 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' Tulsa, Oklahoma- 74135 Watergate 600 Building Washington, D.C. 20036 John W. Davidson, Esquire Sawtell, Goode, Davidson &-Tioili Tom W. Gregg, Esquire 1100 San Antonio Savings Building Post Office Box Drawer 1032 San Antonio, Texas 78205 San Angelo, Texas 76902 Douglas F. John,.Escuiro Leland F. Leatherman,' Esquire McDermott, Will and Emery .McMath, Leatherman & Woods, P.A.

1101 Connecticut Avenue, N.W. 711 West Third Street' Suite z l201 .Little Rock, Arkansas 72201 Washington,-D.C. 20036 s

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

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

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