ML19305B418
| ML19305B418 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak, South Texas  |
| Issue date: | 03/11/1980 |
| From: | Blume M, Chanania F NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8003190628 | |
| Download: ML19305B418 (5) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE AT0filC SAFETY AND LICENSING BOARD In the Matter of
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HOUSTON LIGHTING & POWER COMPANY
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NRC Docket Nos. 50-498A PUBLIC SERVICE BOARD OF SAN ANTONIO
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50-499A CITY OF AUSTIN
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CENTRAL POWER AND LIGHT COMPANY
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(South Texas Project, Unit Nos.1
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and 2)
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TEXAS UTILITIES GENERATING
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NRC Docket Nos. 50-445A COMPANY, et al.
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50-446A (Comanche Peak Steam Electric
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Station, Units 1 and 2)
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NRC STAFF RESPONSE TO MOTION 0F HOUSTON LIGHTING &
POWER COMPANY TO COMPEL FURTHER PRODUCTION' BY THE NRC STAFF AND ITS EXPERT ECONOMIC WITNESS Pursuant to 10 CFR Section 2.730(c), the NRC Staff hereby respectfully requests this Board to deny Houston's Motion to Compel further documentary discovery against the NRC Staff and its designated expert economic witness, Dr. Norman Lerner, of Transcomm, Inc.
Despite Staff's production of all documents responsive to the numerous requests by Houston Lighting & Power Company ("HL&P"), HL&P has filed a motion to compel fuller production by the Staff and Dr. Lerner.M
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In response to the three, overlapping discovery requests outlined in the NRC Staff's Motion to Modify the Transconn subpoena, dated February 25, 1980, the Staff produced all mcmoranda written by Dr. Lerner or Rodney Frame, another Transcomm employee, which Dr. Lerner has seen and which he may rely upon; (2) all documents reflecting the contractual relation-ships, work orders, and various government forms as requested by Houston; (3) a list of approximately 117 documents which have been added to the Transconn files since Dr. Lerner's deposition on July 19,1979; and (3) all documents reflecting Dr. Lerner's communication with any other parties or prospective witnesses or other electric utilities in connection with the South Texas and Comanche Peak proceedings.
80031'30 M
ls l The Staff's production of documents which may fom the basis of any of Dr. Lerner's conclusions which might be contained in his expert economic testimony in these above-captioned proceedings has been complete, notwith-standing HL&P's protestations to the contrary.
In its Motion to Modify the Transcomm subpoena, the Staff set forth its position as to the documentary discovery pemissible under previous Board orders in the above-captioned proceedings. The Staff maintains that the Board Orders of April 16, May 7, and October 25 are clear-discovery directed to an expert extends to written and oral communications which may fom the bases for conclusions or thoughts of the expert witness.
It is precisely for that reason that the Board ruled in both its May 7,1979 and October 25, 1979 Orders that discovery directed at Mr. D. E. Sininons, HL&P's designated expert engineering witness, was limited to those documents upon which he relied.
This was the detemining factor for distinguishing between those documents which Mr. Simmons reviewed in his capacity as a corporate officer, and those which might fom the bases of his conclusions or thoughts to which he might testify in these proceedings. This factor -- reliance - was repeated in the Board's Order of October 23, 1979 relating to draft testimony of the Department of Justice's then-designated expert engineering witness:
In return, all factors which could condition or affect these opinions are properly the subject of cross-examination, and hence discovery in advance of trial.
The second clear thread appearing in the same Board order is that non-testifying outside consultants are subject neither to documentary nor
l 3-testimonial discovery in these proceedings. On April 16, and again on May 7,1979, the Board sustained HL&P's argument that documents generated by ncn-testifying outside consultants need not even be identified.
See Orders; HL&P Motion of April 11, 19 79, a t 2.
HL&P, in its Motion to Compel Fuller Responses, in effect argues that one rule should apply to the Staff's expert witnesses and another should apply to its own witnesses and its own non-testifying outside consultants. How-ever, if Dr. Lerner has not seen, or if he cannot remember ever having seen certain documents, there is simply no way that they can fonn the basis for challenging thoughts or conclusions he reached during the evolutionary process of developing his testimony for these proceedings. As Dr. Lerner has been evolving his testimony and has been receiving more documentary materials, the Staff has produced all such documents. Dr. Lerner was deposed in July of 1979, and will again be available for deposition this month. Contrary to the assumptions and innuendos contained in Houston's motion, all documents which are responsive under the guidelines set by the Board have been produced. Houston apparently labors under the mistaken impression that all documents prepared by Transcomm personnel are prepared at Dr. Lerner's direction, and in fact reviewed by him.
This is not the case. Transcomm is retained by the NRC for several purposes, only one of which is to have Dr. Lerner appear as its designated expert economic wit-ness. Other documents generated by Transconin personnel, but not reviewed by Dr. Lerner, fall under the category of 6.on-testifying outside consultant privilege, as established by the Board.
In the interest of full discovery, e
however, the Staff has listed all documents which have been sent by the Staff to Transcomm, even though Dr. Lerner may n'ot actually have reviewed them.E For these reasons, Houston's recitation of the circumsttvas surrounding the memoranda identified at the initial deposition of Dr. Lerner are simply irrelevant; those memoranda were produced as soon as HL&P indicated its interest in them by the letter of December 7,1979 from Peter Flynn, Counsel for Houston, to counsel for the NRC Staff. These memoranda were made avail-able, pursuant to verbal agreement between NRC Staff counsel and Mr. William Franklin, HL&P attorney, and were produced in accordance with that verbal agreement on January 23, 1980. This production was some two months before the Lerner deposition now scheduled for March 17, 1980. There can be no hint of prejudice to Houston in this regard, and Staff deems this entire matter unduly duplicative and burdensome.
The crux of HL&P's concern seems to be that there exist other documents which Dr. Lerner has prepared, seen, or reviewed in the course of developing y
These documents have been produced both at Dr. Lerner's deposition of July 19,1979, at which time HL&P made a selection of those which it had sought, and in response to the recent wave of discovery requests.
In response to the latter requests, the Staff produced the documents set forth in Footnote 1, and listed an additional 117 documents which are in the Transconin files. Counsel for HL&P and the Staff discussed these matters prior to Houston's filing without warning of its motion to compel. Nevertheless, Counsel for Houston has not yet notified NRC Counsel of any documents which it, in fact, seeks to obtain.
- Instead, HL&P seeks to posture and involve the Board in the discovery process by fonnal motion rather than by pursuing infonnal means of discovery, as suggested by the Board.
his testimony in the present matter.
This is not the case; all documents have been produced under the guidelines set forth by the Board in its Orders, as outlined above. The NRC Staff objects to producing documents which hap not been prepared, seen, or reviewed by Dr. Lerner in the course of developing his testimony in the present case, since they cannot form the basis for his opinions. To the extent that there are any documents which may form the basis or may relate to the formation of Dr. Lerner's opinions on the issues in the above-captioned proceedings, these have been produced to HL&P.3./
For the reasons stated above, the NRC Staff respectfully requests that the Board deny the Motion of HL&P to Compel Fuller Prod 0ction by the Staff and its expert economic witness, Dr. Lerner.
Respectfully submitted, 4 m b. u e Fredric D. Chanania Counsel for NRC Staff Michael B. Blume Counsel for NRC Staff Dated at Bethesda, Maryland this lith day of March,1980.
3f The Staff believes that HL&P has embarked upon a highly improper course of conduct in attempting to bring before the Board discovery documents prior to the time they are admitted into evidence. Thus, Appendix D to the HL&P motion to compel fuller responses is highly irregular, and should not be entertained or considered by the Board.