ML19322E357
| ML19322E357 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak  |
| Issue date: | 03/18/1980 |
| From: | Knotts J DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8003270270 | |
| Download: ML19322E357 (7) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of:
HOUSTON LIGHTING AND POWER
)
Docket Nos. 50-498A COMPANY, et _al.
)
50-499A (South Texas Project, Units
)
1 and 2)
)
)
TEXAS UTILITIES GENERATING
)
Docket Nos. 50-445A COMPANY, _e t _al.
)
50-446A (Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
OPPOSITION OF TEXAS UTILITIES GENERATING COMPANY TO NRC STAFF MOTION TO QUASH SUBPOENA DF MR. RODNEY FRAME On February 21, 1980 Texas Utilities Generating Company
("TUGCO") applied for, and the Board issued, a subpoena for the deposition of Mr. Rodney Frame of Transcomm, Inc. as an adverse witness and to have him produce relevant documents.
On March 11, 1980 the NRC Staff filed its motion to quash this subpoena.
TUGCO asserts that this motion to quash is ill-founded and should be denied for the reasons stated herein.
As the basis for its motion to quash, the Staff contends that Mr. Frame is a "non-testifying outside consultant to the NRC Staff" (Motion at page 1), that the Staff has made avail-able to both TUGCO and HL&P "all the information which Dr. Lerner, as Staff's expert, has seen, reviewed, and may rely upon for his testimony in the above-captioned proceedings, based upon present knowledge and information," and that TUGCO should ask 800827g S j
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Dr. Lerner (but not Mr. Frame) anything it wants regarding what he has reviewed or relied on.
(Motion at page 1-2).
The Staff contended that previous orders of this Board are to the affect that the work of non-testifying outside consultants is not discoverable in this proceeding, and in essence seems to be saying that because Mr. Frame has not been designated as a testifying expert, his work is that of a non-testifying expert and is thus immune from discovery unless Dr. Lerner relies upon it.
This is essentially the same NRC Staff argument which this Board found to have no merit in its Order of March 13, 1980.
There, the NRC Staff argued that it should not have to produce additional Transcaen documents because they constituted the work of non-testifying experts.
Applying the same reasoning here as in the March 13, 1980 Order, it seems clear that Mr. Frame raust be produced and respond regarding any proper i
matter.
j Moreover, Dr. Lerner has already testified in his earlier deposition that Mr. Frame had done much of the work up to that time for Dr. Lerner's testimony.
The work which has been done i
by Mr. Frame obviously could have an influence on Dr. Lerner's testimony, and TUGCO is entitled to compare and test Dr. Lerner's recollection of what Mr. Frame has done and is doing to Mr. Frame's 1/
At page 92 of his deposition, Dr. Lerner testified that he assigned Mr. Frame and others at Transcomm to work with him on this case and that their work is being done under his direct supervision.
Under Transcomm's contracts with the NRC, Mr. Frame is classified as " key personnel" considered to be essential to the work being performed hereunder."
Article IV of Contracts NRC-03-79-131 (February 23, 1979),
NRC-03-79-165 (August 8, 1979), and NRC-03-80-129 January 14, 1980).
s.
recollection of that work.
Presumably, TUGCO will be provided additional documents under the March 13, 1980 Order including writings authored by Mr. Frame.
TUGCO is entitled to question
,that witness regarding these and other documents and whether to his knowldege or information Dr. Lerner has seen or been apprised of them.
Further, TUGCO is entitled to probe any oral communications to which Mr. Frame and Dr. Lerner were parties.
It would be surprising if Mr. Frame could add nothing at all to Dr. Lerner's recollections.
TUGCO is entitled to this discovery by the reasoning of the Board's Order of October 23, 1979:
Various steps in the analyses and thinking processes of expert witnesses in arriving at their conclusions are discover-able, as bearing upon the bases for their opinions as well as their credibility as witnesses.
The reasons for changes or refinements in expert opinions may be very illuminating to the Board in evaluat-ing opinion evidence, especially where there are conflicts in the opinions of proferred experts.
. [Alll factors which could condition or affect these opinions are properly the subject of cross-examination, and hence discovery in advance of trial (Order at p.2, emphasis added).
l TUGCO cannot reasonably be confined, as the Staff would have it, to asking Dr. Lerner about his recollections I
when Mr. Frame, who worked on the case for Dr. Lerner, by
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the latter's own testimony, may have further information that l
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-4 would relate to credibility or shed light on the bases for preliminary or final conclusions or opinions.
Accordingly, TUGCO requests that the motion to quash be denied.
Respectfully submitted, hb Jose B.
Knotts, Jr.
DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 Counsel for Texas Utilities Generating Company Date:
March 18, 1980 f
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
HOUSTON LIGHTING AND POWER CO.,
)
Docket Nos. 50-498A
_et _al.
)
50-499A (South Texas Project, Units
)
1 and 2)
)
)
TEXAS UTILITIES GENERATING
)
Docket Nos. 50-445A
- _al.
)
50-446A
- COMPANY, et (Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Opposition of Texas Utilities Generating Company to NRC Staff Motion to Quash Subpoena of Mr. Rodney Frame" in the above captioned matters, were served upon the following persons by deposit in the United States mail, first class postage prepaid this 18th day of March, 1980.
Marshall E. Miller, Esq.
Mr. Jerome D.
Saltzman U.S. Nuclear Regulatory Chief, Antitrust and Commission Indemnity Group Washington, D.C.
20555 Nuclear Reactor Regulation U.S. Nuclear Regulatory Michael L.
Glaser, Esq.
Commission 1150 17th Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20036 J.
Irion Worsham, Esq.
Sheldon J. Wolfe, Esq.
Merlyn D.
Sampels, Esq.
U.S. Nuclear Regulatory Spencer C.
Relyea, Esq.
Commission Worsham, Forsythe & Sampels Washington, D.C.
20555 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 Atomic Saftty and Licensing Appeal Board Panel Jon C. Wood, Esq.
U S.
Nuclear Regulatory W.
Roger Wilson, Esq.
Commission Matthews, Nowlin, Macfarlane &
Washington, D.C.
20555 Barrett 1500 Alamo National Building Chase R.
Stephens San Antonio, Texas 78205 Docketing and Service Branch U.S. Nuclear Regulatory Dick Terrell Brown, Esq.
Commission 800 Milam Building Washington, D.C.
20555 San Antonio, Texas 78205-i 0
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Charles G.
Thrash, Jr., Esq.
Don R.
Butler, Esq.
E.W.
Barnett, Esq.
211 East Seventh Etreet Theodore F. Weiss, Esq.
Austin, Texas 78701 J. Gregory Copeland, Esq.
Baker & Botts 3000 One Shell Plaza Houston, Texas 77002 Jerry L.
Harris, Esq.
Steven R.
Hunsicker, Esq.
Richard C.
Balough, Esq.
R.Gordon Gooch, Esq.
City of Austin John P. Mathis, Esq.
P.O. Box 1088 Baker & Botts Austin, Texas 78767 1701 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Robert Lowenstein, L35 J.A.
Bouknight, Jr., Csq.
Roy P. Lessy, Jr., Esq.
William J.
Franklin, Esq.
Michael B.
Blume, Esq.
Douglas G.
Green, Esq.
Fredric D.
Chanania, Esq.
Lowenstein, Newman, Reis, Ann P.
Hodgdon, Esq.
Axelrad and Toll J.6.
Nuclear Regulatory 1025 Connecticut Avenue, N.W.
Commission Washington, D.C.
20036 Washington, D.C.
20555 John W. Davidson, Esq.
Roff Hardy Sawtelle, Goode, Davidson &
Chairman and Chief Executive Tioilo Officer 1100 San Antonio Savings Bldg.
Central Power and Light Company San Antonio, Texas 78205 P.O.
Box 2121 Corpus Christi, Texas 78403 Douglas F.
John, Esq.
McDermott, Will and Emery Mr. Perry G. Brittain 1101 Connecticut Ave., N.W.
President Suite 1201 Texas Utilities Generating Washington, D.C.
20036 Company 2001 Bryan Tower Bill D.
St. Clair, Esq.
Dallas, Texas 75201 Morgan Hunter, Esq.
McGinnis, Lockridge & Kilgore R.L. Hancock, Director Fifth Floor, Texas State City of Austin Electric Utilitf Bank Building P.O. Box 1086 900 Congress Avenue Austin, Texas 78767 Austin, Texas 78701 G.W.
Oprea, Jr.
Executive Vice President Houston Lighting & Power
. David M.
Stahl, Esq.
Company Isham, Lincoln & Beale P.O.
Box 1700 1120 Connecticut Avenue, N.W.
Houston, Texas 77001 Suite 325 Washington, D.C.
20036 Susan B.
Cyphert, Esq.
Frederick H. Parmenter, Esq.
David A.
Dopsovic, Esq.
Nancy Luque, Esq.
U.S.
Department of Justice Antitrust Division P.O.
Box 14141 Washington, D.C.
20044
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Sara Welling, Esq.
Mr.
G.
Holman King Michael I. Miller, Esq.
West Texas Utilities Co.
James A. Carney, Esq.
P.O. Box "41 Isham, Lincoln & Beale Abilene, Texas 79604 One First National Plaza Suite 4200 K7 vin B.
Pratt, Esq.
Chicago, Illinois 60603 Attorney General's Office State of Texas Don H. Davidson P.O. Box 12548 City Manager Austin, Texas 78711 City of Austin P.O. Box 1088 Frederick H. Ritts, Esq.
Austin, Texas 78767 William H. Burchette, Esq.
Northcutt Ely W.
S.
Robson H;tergate 600 Building General Manager Washington, D.C.
20037 South Texas Electric Cooperative, Inc.
Route 6, Building 102 Victoria Regional Airport victoria, Texas 77901 George Spiegel, Esq.
eg' r 1(obert C. McDiarmid, Esq.
j-(,W/
Robert Jablon, Esq.
4 Marc Poirier, Esq.
Jdseph B.
Knotts, Jr.
Spiegel & McDiarmid u
2600 Virginia Ave., N.W.
Ste. 312 Washington, D.C.
20037 W.N. Woolsey, Esq.
Dyer and Redford 1030 Petroleum Tower Corpus Christi, Texas 78474 Donald M. Clements Gulf States Utilities Company Post Office Box 2951 Beaumont, Texas 77704 Marc J. Wetterhahn, Esq.
Robert M.
Rader, Esq.
Conner & Moore 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Mr. William C. Price Central Power & Light Co.
l P.O. Box 2121 l
Corpus Christi, Texas 78403 e
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