ML19208C309

Opposition to Jf Doherty 790806 Motion to Postpone Discovery Until After Next Special Prehearing Conference.Intervenor Allegation Re Interference by Applicant Has No Factual or Legal Basis.Certificate of Svc Encl

ML19208C309
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	08/16/1979
From:	Copeland J, Newman J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:
References
NUDOCS 7909260020
Download: ML19208C309 (6)

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NUCLEAR REGULATORY COMMISSION , - #" g BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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HOUSTON LIGHTING & POWER ) Docket No. 50-466 COMPANY )

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(Allens Creek Nuclear )

Generating Station, Unit 1) )

APPLICANT'S RESPONSE TO JOHN F. DOHERTY'S MOTION TO POSTPONE DISCOVERY UNTIL AFTER THE NEXT SPECIAL PREHEARING CONFERENCE Applicant files this response to " John F. Doherty's Motion to Postpone Discovery Until After the Next Special Prehearing Conference," dated August 6, 1979.-*/

• / The relief Mr. Doherty seeks might be more properly re-quested by a motion for a protective order pursuant to 10 CFR S2. 740 (c) :

(c) Protective Order. Upon motion by a party or the person from whora discovery is sought, and for good cause shown, the presiding officer may make any order which justice requires to protect a party or per-son from annoyance, embarrassment, oppression, or undue burden or expense. . ..

The parallel federal court provision, FRCP 26 (c) , has been interpreted to permit the court to regulate the time of discovery. See generally 4 Moore's Federal Practice 26.70[2] (2d ed. 1979). Applicant respect-fully submits that Mr. Doherty has not demonstrated

" good cause shown" pursuant to 10 CFR S2.740 (c) .

-w 790926 m2O 1015 342

Mr. Doherty's complaint is that the Applicant has served interrogatories on him at a time when he is otherwise occupied with preparations for the next Special Prehearing Conference in this proceeding. Mr. Doherty states that Applicant did this in a calculated effort "to interfere with his time avail-able to amend contentions . . . and are only secondarily involved with information gathering." This statement is not supported by the facts.

First, Applicant forebore the service of interroga-tories on Mr. Doherty until the time to amend contentions pursuant to this Board's Memorandum and Order of April 11, 1979, had ex-pired. It was Applicant's view that to file interrogatories before the expiration of the period allowed by the April 11 Order would have been both burdensome and confusing. The process of discovery against Mr. Doherty was further complicated by the fact that for several months he wore "two hats" -- as an intervenor in his own right and as an official of intervenor TexPirg. In the latter role his deposition was taken and he responded to interrogatories served by Applicant. (To have proceeded with separate discovery on Mr. Doherty as an individual during this period of time would, undoubtedly, have been cause for comparable protest )

On the single issue as to which Mr. Doherty was initially af*itted as an intervenor (ATWS), his deposition was taken promptly 1015 343

(March 26, 1979) and related interrogatories were served on May 18 on intervenor TexPirg, with whom he was consolidated for purposes of this issue.

In summary, Applicant proceeded first with discovery against the intervenor (TexPirg) with the most extensive set of initially accepted contentions. Applicant chose L;t to burden Mr. Doherty during his tenure as a TexPirg official and pending expiration of the time allotted for amendment of his contentions. In any event, Applicant proceeded with discovery in an orderly fashion and in a manner which we earnest-ly believe accommodated Mr. Doherty's many and varied roles over the past several months. Mr. Doherty's assertion that Applicant delayed discovery against him for more than three months is simply wrong.

Mr. Doherty characterizes Applicant's interrogatories as "merely questions about the wording of contentions. . . ."

A function of discovery is to ascertain with more precision the meaning of contentions. As Mr. Doherty states, "At the heart of any construction license proceeding is the conten-tions of the parties." Determining the scope of contentions is essential to preparing motions for summary disposition and testimony, and is a necessary and legitimate end of the pre-hearing procedures of which Mr. Doherty complains.

1015 344

In summary, the essential elements of the motion are wrong as a matter of fact and law. The record, we believe, shows that discovery has proceeded fairly and in good faith, and consistent with the requirements of 10 CFR S2.740 (d) .

For the foregoing reasons, the motion should be denied.

Respectfully submitted, i

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/ Jack R. Newman

,'jilarold F. Reis v Robert H. Culp 1025 Connecticut Avenue, N. W.

Washington, D. C. 20036 J. Gregory Copeland Charles G. Thrash C. Thomas Biddle, Jr.

3000 One Shell Plaza Houston, Texas 77002 Attorneys for Applicant HOUSTON LIGHTING & POWER COMPANY OF COUNSEL:

LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, N.W.

Washington, D. C. 20036 BAKER & BOTTS 3000 One Shell Plaza Houston, Texas 77002

.s 1015 345

U'IITED STATES OF AMERICA NUCLEAR REGULATORY COH'!ISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

HOUSTON LIGHTING & POWER ) Docket No. 50-466 COMPANY )

)

(Allens Creek Nuclear )

Generating Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of Applicant's Response to John F. Doherty's Motion to Postpone Discovery Until After The Next Special Prehearing Conference, in the above captioned proceeding, were served on the following by deposit in the United States mail, postage prepaid, or by hand delivery this 16th day of August, 1979:

Sheldon J. Wolfe, Esq., Chairman R. Gordon Gooch, Esq.

Atomic Safety and Licensing Baker and Botts Board Panel 1701 Pennsylvania Avenue, N.W.

U.S. Nuclear Regulatory Commission Washington, D. C. 20006 Washington, D. C. 20555 Richard Lowerre, Esq.

Dr. E. Leonard Cheatum Assistant Attorney General Route 3, Box 350A for the State of Texas Watkinsville, Georgia 30677 P. O. Box 12548 Capitol Station Mr. Gustave A. Linenberger Austin, Texas 78711 Atomic Safety and Licensing Board Panel Hon. Charles J. Dusek U.S. Nuclear Regulatory Commission Mayor, City of Wallis Washington, D. C. 20555 P. O. Box 312 Wallis, Texas 77485 Chase R. Stephens Docketing and Service Section Hon. Leroy H. Grebe Office of the Secretary of the Codnty Judge, Austin County Commission P. O. Box 99 Washington, D. C. 20555 Bellville, Texas 77418 1015 346

Atomic Safety and Licensing Robert S. Framson Board Panel 4822 Waynesboro Drive U.S. Nuclear Regulatory Houston, Texas 77035 Commission Washington, D. C. 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Steve Sohinki, Esq.

Staff Counsel U.S. Nuclear Regulatory Commission Washington, D. C. 20555 John F. Doherty 4438 1/2 Leeland Houston, Texas 77023 Madeline Bass Framson 4822 Waynesboro Drive Houston, Texas 77035 Carro Hinderstein 8739 Link Terrace Houston, Texas 77025 D. MarracP 420 Mulberry Lane Bellaire, Texas 77401 Brenda McCorkle 6140 Darnell Houston, Texas 77074

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F. H. Potthoff, III 7200 Shady Villa #10 Houston, Texas 77080 Wayne E. Rentfro P. O. Box 1335 Rosenberg, Texas 77471 Scott, Jr. '

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Houston, Texas 77074 /' Jack R. Newman 1015 347