ML19345H091

Response in Support of NRC 810408 Request That ASLB Require Intervenors to Give Notice by 810423 of Subpoenas to Be Filed.Nrc & Util Should Be Allowed to File Responses. Certificate of Svc Encl

ML19345H091
Person / Time
Site:	South Texas
Issue date:	04/20/1981
From:	Axelrad M HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8104300471
Download: ML19345H091 (7)

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m e 'M NUCLEAR REGULATORY COMMISSION  ! o v-y(m=~;BEFORE THE ATOMIC SAFETY4 AND LICEN 7

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HOUSTON LIGHTING & POWER ) Docket Nos. 50-498 OL COMPANY, ET AJ. 50-499 OL -

(South Texas Project, )

Units 1 and 2) ) April 20, 1981 APPLICANTS' RESPONSE TO " STAFF MOTION RELATIVE TO PERSONS TO BE SUBPOENAED AS FITNESSES PURSUANT TO 10 C.F.R. S 2.720" On April 8, 1981, the NRC Staff moved the Board to require intervenors to give notice by April 23, 1981, of any subpoena applications they intend to file for the upcoming expedited OL proceeding, and to set forth the information they intend to elicit from subpoenaed individuals by that same date. The Applicants support the Staff's request, with the following clarifications and additions.

As the Staff points out, to the extent an intervenor sub-poenas witnesses and the testimony of those witnesses cannot be pre-filed, Applicants and the Staff will be at a substantial disadvantage in preparing for litigation because the subject matter of the testimony that intervenors hope to adduce at the hearing will not be available in advance. The Commission's regulations are intended to preclude such surprise testimony.

(10 C.F.R. S 2.743(b)). It is therefore appropriate for the Board to provide alternative means to apprise the parties in advance 9509 810430 0 "

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of the information that intervenors intend to adduce at trial from the subpoenaed witnesses. The Staff's request would accomplish this objective.

The Staff's request is also consistent with the rules of practice which permit the Board Chairman to " require a showing of general relevance of the evidence sought" by the party re-questing a subpoena. (10 C.F.R. S 2.720). This showing, as amplified by the Staff's request, is particularly important here because of the large number of. individuals named by intervenors at a late date and the limited notice to the parties as to the substance of any information that intervenors expect to elicit from them.

Applicants also roguest the Board to grant Applicants and the Staff permission to file responses to any of the inter-l

! venors' applications for subpoenas. The Board clearly has l

authority to permit the filing of such responses pursuant to 10 C.F.R. S 2.718. This procedure, while not explicitly l

l provided for in the rules of practice, is necessary in this case not only because the intervenors have named a large number of individuals so late but because it appears to Applicants that many of the individuals do not possess relevant information l

l for the record, and because many can provide only repetitive l and cumulative evidence. Judging from the intervenors' lengthy witness list filed on March 30, the Board will undoubtedly have to carefully evaluate any subpoena applications to determine the appropriateness of issuing subpoenas for particular individuals, i

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and it will be aided in this task by the knowledge and views i

of all the parties. In Applicants' view, this procedure is

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] preferable to having a large number of subpoenas issued on

, the basis of an incomplete record subject to subsequent motions to quash.

The Applicants agree that subpoena applications should be submitted promptly-*/ so that the parties are timely apprised i of the substance of all the testimony that the intervenors intend to adduce. However, it is not clear whether the April 23 2 **/

date suggested by the Staff can be feasibly met. Applicants

. therefore suggest that the Board require the intervenors to provide this information within five days after the Board issues its ruling on the Staff's motion. Since intervenors presumably knew what information they expected to obtain when they listed the individuals to be called as adverse witnesses,

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• / Pursuant to S 2.720(b) any subpoena issued by the Bo'ard l must specify the time and place at which the witness' l attendance is required. In this case, as in other multi-I party proceedings, it cannot be known until sometime later in the proceeding precisely when the intervenors' cases will be presented. However, this common problem presents no obstacle to requiring that subpcena appli-cations be submitted promptly. If any subpoenas are issued by the Board, it can simply specify thereon that the attendance of subpoenaed individuals will be required s

for a period of time beginning on a particular date and continuing from there forward. Since Applicants' case will in all likelihood not be completed before June 1, i any subpoena issued can specify June 1 as the initial date fcr attendance. After the evidentiary hearings begin, and when it becomes clearer when the intervenors can present their witnesses, the Board can modify the subpoenas if necessary.

• • / Under 10 C.F.R. 5 2.730, Applicants and the intervenors have until April 23 to respond to the Staff's motion.

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they should have no difficulty complying with this requirement during the proposed time frame. Applicants further request that the Board issue its ruling as soon as possible after securing responses from the parties, and that it notify the t

parties of its ruling by phone so that the five-day period can

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commence immediately after the Board renders a decision.-

Respectfully submitted, Jack R. Newman t Maurice Axelrad David B. Raskin 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Finis E. Cowan Thomas B. Hudson, Jr.

3000 One Shell Plaza Houston, Texas 77002 Attorneys for HOUSTON LIGHTING &

POWER COMPANY, Project Manager of l the South Texas Project acting herein on oehalf of itself and the other Applicants, THE CITY OF SAN ANTONIO, TEXAS, acting by and l

through the City Public Service Board of uhe City of San Antonio, CENTRAL POWER AND LIGHT COMPANY and CITY OF AUSTIN, TEXAS l

-*/ Intervenors should also be instructed that any individuals appearing at the hearing under subpoena issued at inter-venors' request must be reimbursed by them for travel and witness fees. (10 C.F.R. S 2.720 (d)) .

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OF COUNSEL:

LOWENSTEIN, NEWMAN, REIS,

& & AXELRAD 1025 Connecticut Avenue, N.W.

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

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UNITED STATE 3 OF AMERICA '

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l In the Matter of )

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HOUSTON LIGHTING & POWER ) Docket Nos. 50-498 OL COMPANY, ET A_L.

) 50-499 OL

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f (South Texas Project, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the Applicants' Response to " Staff Motion Relative to Persons tc be Subpoenaed as Witnesses Pursuant to 10 C.F.R. S 2.720", dated April 20, 1981, uas served on the following individuals and entities by deprisit in the United States mail, first class, postage prepaid, on this 20th day of April, 1981.

Charles Bechoefer, Esquire Docketing and Service Section Chairman Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Mrs. Peggy Buchorn Washington, D.C. 20555 Executive Director l

Citizens for Equitable Utilities, Mr. James C. Lamb Inc.

313 Woodhaven Road Route 1, Box 1684 Chapel Hill, North Carolina Brazoria, Texas 77422 27514 Pat Coy Ernest E. Hill Citizens Concerned About Nuclear Lawrence Livermore Laboratory Power l

University of California 5106 Casa Oro l P. O. Box 008, L-123 San Antonio, Texas 78233 Livermore, California 94550 Atomic Safety and Licensing Appeal Jay Gutierez, Esq. Board Panel.

Office of the Executive Legal U.S. Nuclear Regulatory Commission Director Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Lanny sinkin Washington, D.C. 90555 2207-D Nueces Austin, Texas 78705

e 2-Brian E. Berwick Atomic Safety and Licensing Board Assistant Attorney General Panel for the State of Texas U.S. Nuclear Regulatory Commission P. O. Box 12548 Washington, D.C. 20555 Austin, Texas 78711 I

Maurice Axelrad 4

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