ML19262A755
| ML19262A755 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 11/29/1979 |
| From: | Sohinki S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19262A753 | List: |
| References | |
| NUDOCS 7912100482 | |
| Download: ML19262A755 (6) | |
Text
11/29/79 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSIl4G BOARD In the Matter of HOUSTON LIGHTING & POWER COMPANY Docket No. 50-466 (Allens Creek Nuclear Generating
)
Station, Unit 1)
)
NRC STAFF'S RESPONSE TO MOTION FOR DISMISSAL 0F TEXPIRG The NRC Staff o,9 poses the Applicant's " Motion for Dismissal of TEXPIRG,"
filed in the captioned proceeding on November 9, 1979. We need not agair, recount the ' complex sequence of events which have led the Applicant to file its Motion.
Suffice it to say that we agree that TEXPIRG's course of conduct with regard to responses to oiscovery requests has been extremely confusing.
Given that confusion, we can understand how the Applicant could retsonably interpret TEXPIRG's actions ac an intentional attempt to thwart the Com-mission's discovery procedures. On the other hand, we can also understand how TEXPIRG could view itself as attempting to respond as best it could given the apparent confusion regarding the leadership of the organization over the course of the past several months.
The Staff does not believe that the cases cited by the Applicant support dismissal of TEXPIRG as an intervenor. Generally, those cases all dealt with situations in which there was an intentional and deliberate refusal to respond to discovery requests. We do not believe that the series of events discussed in the Applicant's motion demonstrates that TEXPIRG has engaged in that course 7912100 1527 020
. of conduct in this proceeding. Further, it is apparent that much of the controversy centers around the fact that Mr. Scott, counsel for TEXPIRG, has signed interrogatories on TEXPIRG's behalf.
Implicit in the Applicant's motion is the view that by signing responses to interrogatories, Mr. Scott becomes the substantive " expert" witness with regard to all matters contained in the questions. However, our review of the law of the Federal Courts with regard to this issue leads us to believe that the Applicant is incorrect.
Under the Federal Rules of Civil Procedure, interrogatories are directed to the adverse jarty, and if the adverse party is not an individual, then the party sele, cts some officer or agent to respond to the interrogatories and swear to the answers. Holland v. Minneapolis-Honeywell Regulator Co.,
28 FRD 595 (DDC 1961).
For the purpose of the interrogatories in question, therefore, Mr. Scott has been designated as TEXPIRG's agent. However, that designation does not automatically make Mr. Scott the " repository of infor-mation" with regard to the substance of TEXPIRG's contentions, as the Appli-cant suggests. While 10 CFR s2.740b does indeed require that the answers to interrogatories be signed by the person making them, in the case of a party which is not an individual, Professor Moore makes clear that the selected
" agent" may be an attorney, that the agent only makes the answers in the formal sense in any event, and that the person signing interrogatories need not be, and often is not, the person having first hand knowledge of the matters contained in the responses. He reed only be authorized to bind the corporation, association, etc. by the responses made.
4A Moore's Federal Practice 533.07 (1978).
S n this regard, we note that it is customary for project managers for I
both the Applicant and Staff to sign interrogatory responses. Of course, these individuals are not experts in all of the substantive areas covered by the responses, but are authorizei to provide the responses on behalf of the party to whom the interrogatories are addressed.
527 021
. The above discussion clearly suggests that the agent or attorney who signs inter-rogatories on behalf of an association such as TEXPIRG need not he the same person who, as a substantive aatter, did the work in preparing the responses. Of course, this does not mean that the interroaating party is without recour.,e in its attempt to discover the basis for the opposing party's case. The " identity and location of persons having knowledge of any discoverable matter" may be sought, for example.
10 CFR S2.740(b)(1). Thus, the appropriate person or persons for purpose of the taking of a deposition could be discovered by the Applicant simply by asking who has substantive technical knowledge with regard to the matters covered by each contention.
Thus, while we agree with the Applicant that Mr. Scott improperly invoked the attorney-client privilege in refusing to answer questions re'ating to the substance of TEXPIRG's contentions, we believe that it was perfectly proper for Mr. Scott to respond to those questions by stating that he is not an expert in the areas covered by the contentions. As we have already discussed, the fact that he signed the interrogatorias on TEXPIRG's behalf would not necessarily signify a claim of expertise on his behalf with regard to the substance of the issues in controversy.
However, while we do not agree that TEXPIRG has intentionally sought to thwart legitimate discovery requests, as stated supra, it h apparent that 1527 022 c
_4_
the actiuns of TEXPIRG have created substantial confusion regarding the person or persons with expertise in the areas covered by the issues in controversy.
Therefore, rather than imposing any sanction on TEXPIRG, the Staff believes that the Board should consider requiring TEXPIRG to identify, within a reasonable period of time, the person or persons having substantive technical knowledge in the subject area covered by each TEXPIRG contention. Such a requirement would move the proceeding along expeditiously, accomplish what we believe is ':he object sought by the Applicant, and would not be burdensome to TEXPIRG, especially in view of the confusion which it has itself created.
Respectfully submitted, 4 ms&L Stephen M. Sohinki Counsel for NRC Staff Dated at Bethesda, Maryland this 29th day of November,1979 1527 023
UNITCD STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of HOUSTON LIGHTING & POWER COMPANY Docket No. 50-466 (Allens Creek Nuclear Generating
)
Station, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO DISMISS MCCORKLE AND HINDERSTEIN AS PARTIES TO THIS PROCEEDING" and "NRC STAFF'S RESPONSE TO MOTION FOR DISMISSAL OF TEXPIRG" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 29th day of November,1979:
Sheldon J. Wolfe, Esq., Chairman
- Richard Lewarre, isq.
Atomic Safety and Licensing Board Panel Asst. Attorney General for the U.S. Nuclear Regulatory Commission State of Texc Washington, DC 20555 P.O. Box 1254ti Capitol Station Dr. E. Leonard Cheatum Austin, Texas 78711 Route 3, Box 350A Watkinsville, Georgia 30677 Hon. Jerry Sliva, Mayor City of Wallis, Texas 77485 Mr. Gustave A. Linenberger
- Atomic Safety and Licensing Board Panel Hon. John R. Mikeska U.S. Nuclear Regulatory Commission Austin County Judge Washington, DC 20555 P.O. Box 310 Bellville, Texas 77418 R. Goraon Gooch, Esq.
Baker & Botts Mr. John F. Doherty 170i Pennsylvania Avenue, N.W.
4327 Alconbury Street Washington, DC 20006 Houston, Texas 77021 J. Gregory Copeland, Esq.
Mr. and Mrs. Robert S. Framson Baker & Botts 4822 Waynesboro Drive One Shell Plaza Houston, Texas 77035 Houston, Texas 77002 Mr. F. H. Potthoff, III Jack Newman, Esq.
1814 Pine Village Lowenstein, Reis, Newman & Axelrad Houston, Texas 77080 1025 Connecticut Avenue, N.W.
Washington, DC 20037 D. Marrack 420 Mulberry Lane Carro Hinderstein Bellaire, Texas 77401 8739 Link Terrace Houston, Texas 77025 1527 024
Texas Public Interest Margaret Bishop Research Group, Inc.
11418 Oak Spring c/o James Scott, Jr., Esq.
Houston, Texas 77043 8302 Albacore Houston, Texas 77074 Glen Van Slyke 1739 Marshall Brenda A. McCorkle Houston, Texas 77098 6140 Darnell Houston, Texas 770/4 J. Morgan Bishop 11418 Oak Spring Mr. Wayne Rentfro Houston, Texas 77043 P.O. Box 1335 Rosenberg, Texas 77471 Stephen A. Doggett, Esq.
Pollan, Nicholson & Doggett Rosemary N. Lemer P.O. Box 592 11423 Oak Spring Rosenberg, Texas 77471 Houston, Texas 77043 Bryan L. Baker Charles Andrew Perez
,1118 Montrose 1014 Montrose Blvd.
Houston, Texas 77019 Houston, Texas 77019 Robin Griffith Leotis Johnston 1034 Sally Ann 1407 Scenic Ridge Rosenberg, Texas 77471 Houston, Texas 77043 Elinore P. Cummings Atomic Safety and Licensing
- 926 Horace Mann Appeal Board Rc5enberg, Texas 77471 U.S. Nuclear Regulatory Comission Washington, DC 20555 Mrs. Connie Wilson 11427 Oak Spring Atomic Safety and Licensing
- Houston, Texas 77043 Board Panel U.S. Nuclear Regulatory Commission Patricia L. Streilein Washington, DC 20555 Route 2, Box 398-C Richmon, Texas 77469 Docketing and Service Section
- Office of the Secretary Carolina Conn U.S. Nuclear Regulatory Comission 1414 Scenic Ridge Washington, DC 20555 Houston, Texas 77043 Mr. William J. Schuessler Mr. Robert Alexander 5810 Darnell 10925 Briar Forest #1056 Houston, Texas 77074 Houston, TX 77042 4
Stephen /M.Sohinki Counsel for NRC Staff 1S27 025
.