ML20003D216
| ML20003D216 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 03/04/1981 |
| From: | Copeland J, Newman J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8103190611 | |
| Download: ML20003D216 (25) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD d
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In the Matter of S
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p' HOUSTON LIGHTING & POWER COMPANY S
Docket No. 50-466
[f (Allens Creek Nuclear Generating e)
Station, Unit 1)
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APPLICANT' S RESPONSE TO TEXPIRG' S MOTIONg ["'
4 FOR RECONSIDERATION OF VARIOUS RULINGS e,,W" j
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'd DURING EVIDENTIARY HEARINGS, AND FOR d
CERTIFICATION OF VARIOUS ISSUES TO THE APPEAL BOARD s'
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Procedural History On January 29, 1981, TexPirg filed, under one cover, a series of motions to the Licensing Board and the Appeal Board seeking the followin'g relief:
(1) a variety of rulings on various procedural matters; -(2) referral of an interlocutory appeal pursuant to 10 CFR S2.730 (f) ; (3) certification of various issues pursuant to 10 CFR S2.718 (i) ; and (4) the re-moval of the Licensing Board.
On February 3, 1981, the Appeal Board issued a Memorandum and Order denying TexPirg the relief sought from that' panel.
Houston Lighting & Power Co.-(Allens Creek Nuclear Generating Station, Unit 1), ALAB-630, NRC (February 3, 1981).
Specifically, the Appeal Board noted its disapproval of "the practice.of simultaneously seeking Li-censing _ Board reconsideration of interlocutory rulings and h'
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appellate review of the same rulings."
(Slip op. at 2).
The Appeal Board further reminded TexPirg that any subsequent appeal "must refer to the specific page or pages of the hearing trans-cript upon which each challenged ruling or action appesrs" (Id.)
and admonished that it did not normally 4.nterfere with the " day-to-day" rulings of the Licensing B-rds.
(Slip op. at 3).
Finally, the Appeal Board explained the correct procedur~e for presenting a request to disqualify one or more members of a li-censing board pursuant to 10 CFR S2.704 (c).
(Id.)
At the evidentiary sessions held on February 5, 1981, Applicant's counsel inquired of the Board whether, in light of ALAB-630, th'e Board wanted Applicant and Staff to file written responses to TexPirg's motion.
(Tr. 4807).
The Board stated that written responses would be helpful in ruling on the remaining portions of TexPirg's motion, and requested Applicant and Staff to respond.
(Tr. 4808).
The Board then ruled that the portion of TexPirg's filing which sought disqualification of the Board, being procedurally defective, was denied-With respect to the remaining portions of TexPirg's motion, the Board ruled that L
TexPirg would be required to resubmit its motion after inserting citations to the record of rulings which TexPirg sought to have reconsidered.
-(Tr. 4812).
On February 17, TexPirg resubmitted the same document with a few textual changes and record citations written-in by.
hand at various places.
The portions of Texpirg's morion which requested disqualification of the Board and which sought inter-locutory review by the Appeal Board were also resubmitted.
On February 23, the Appeal Board issued a Memorandum and Order again dismissing TexPirg's attempt to obtain review from that panel and Instructing TexPirg that it had not intended for TexPirg to simply refile its earlier motion with citations added.
In light of the two Appeal Board rulings and the Li-censing Board's rulings at Tr. 4807-4812, Applicant has not responded to those portions of TexPirg's refiled motion which have already been mooted.
In addition, Applicant has treated as withdrawn those allegations in TexPirg's motio.n which have not been supported-by citations to the record as required by
- /
the Board.-
II.
Backcround TexPirg's motion was originally filed after approxi-mately two weeks of hearings and was refiled after four weeks of hearings in this proceeding.
It is re.plete with assertions of Board prejudice, misrepresentations of rulings by the Board,
-*/
However, Applicant has addressed several of these unsupported allegations in the body of this response, since in our view a ccmplete' record on TexPirg's motion requires that certain of these matters _be brought to the Board's attention. k-
I 1
and mischaracterizations concerning the state of the record.
Applicant responds below to each of the allegations in TexPirg's filing, however, it is esse'ntial that the allegations raised by TexPirg be considered'in the context of the behavior of its own counsel.
Applicant believes that the record will show that counsel for TexPirg has ' conducted cumulative and repetitious cross-examination (E.g.,
Tr. 2993, Tr. 3021-22, Tr. 3526-29, Tr. 3564-71, Tr. 3673-76, Tr. 4173-74, Tr. 4919-24, Tr. 4955-59, Tr. 5021-23, Tr. 5051); that many lines of questioning have been pursued with no legitimate purpose (E.g., Tr. 2793-99, Tr. 2886-90, Tr. 2913-16, Tr. 3043-45, Tr. 3048-53, Tr. 3544-50, Tr. 3592-94, Tr. 3632-34, Tr. 4062-68, Tr. 4131-35, Tr. 4931-34, Tr.
5025-31, Tr. 5051, Tr. 5082-88, Tr. 5366-73); that counsel for TexPirg has come into and walked out of the proceeding, returning to ask questions already_put to the-witness by other parties (E.g.,
Tr. 2773; Tr. 2885-86, Tr. 2960-61, Tr. 4181-84) and to
-re-argue Board rulings made at earlier sessions (E.g., Tr. 4068, Tr. 4109).
Counsel has even failed to appear at sessions at which his own witness was being cross-examined (E.g., Tr. 4497-98, Tr. 4511-13, Tr. 4556-58, Tr. 4616-19) -- all at the expense of the orderly conduct of this proceeding, and indeed to the
~ disservice of.his fellow-intervenors.-*/
-*/
One fellow-intervenor went so far as to reprimand TexPirg counsel cn1 the record-for acting in a discourteous manner.
(Tr. 6198-99).
Ultimately, the Board was required to take graduated measures to guarantee the development of a meaningful record.
In Applicant's view the Board has acted reasonably in the face of this conduct, and has taken minimal steps (far short of those it might have taken) to preserve order in this proceeding.
It is against this background that the matters raised by the extant pleading must be considered.
III.
Limitations on Cross Examination The majority of TexPirg's allegations challenge vari-ous Licensing Board rulings limiting the scope and extent of cross-examination and imposing attendance requirements on inter-venors who wish to engage in cross-examination.
The gravaman of TexPirg's motion is that this Board has abuced its discretion in the-conduct of this proceeding.
In Applicant's view, the Board's actions are consistent with its obligation to take evi-dence in an orderly and expeditious, manner, while ensuring full l
ventilation of the issues.
(10 CFR S2.718; Northern Indiana 1
i Public Service Co. (Bailly Generating Station), ALAB-22 4, 8 AEC l
[
244, 250-51 (1974)).
Because questions of the scope of cross-examination,
'and the parties that may engage in it often depend upon the posture of a particular case, such matters are committed to the discretion-of the Licensing Board.
Public Service Company of Indiana (Marble Hills Units 1 and 2), ALAB-461, 7 NRC 313, 316,
e
(1978).
The Connission's regulations explicitly authorize Licensing Boards to "[t]ake necessary and proper measures to prevent argumentative, repetitious or cumulative cross-examina-tion," (10 CFR 52. 757 (c) ) and to " [i]mpose such time limitations on arguments as [it] determines appropriate, having regard for' the volume of the evidence and the importance and complexity of the issues involved."
(10 CFR S2.757 (d) ).
Consistent with this authority, the Board may " halt immediately cross-examination which manifestly is making no contribution to the ventilation of the issues in contest but, rather, is productive simply of delay and an unduly encumbered record."
Northern States Power Company (Prairie. Island Units 1 and 2), ALA3-244, 8 AEC 857, 868 (1974).
Ultimately, the Board must determine whether cross-examination is relevant and is assisting the development of a sound record on the issues before it.
(ld. at 869) ; Administrative Procedure Act, S7(c), 5 USC S556 (d).
The necessity for Licensing Board action imposing reasonable limitations on cross-examination was apparent almost from the outset.
Applicant and Staff witnesses addressing the viability'of the Allens Creek cooling lake were cross-examined for well'over a week by a rotating battery of intervenors who attended the hearings on a sporadic basis.
-(Tr. 2521-4365, Tr.
- /.
4 499-4 519,. 4701-50 9 6).~
.This process resulted in an intolerable
-*/
A review of'this incredibily long (and largely useless) record demonstrates what micht have' continued to occur had the Board not stepped'in to impose reasonable limita-tions on intervenor cross-examination, and supports the
-Board's subsequent actions in1this regard.
amount of repetitious cross-examination since intervenors made no meaningful effort to coordinate their activities.
Intervenors in this proceeding have failed to recog-nize that their party status carries with it, not only the rights afforded-parties under the NRC's rules of practice, but also the obligations which those rules impose.
Offshore Power Systems (Nanufacturing License for Floating Nuclear Power Plants),
LBP-75-67, 2 NRC 513, 815 (1975).
One such obligation is to attend the evidentiary hearings or risk losing the right to contest a particular issue.
(10 CFR S2.707).
As the Appeal Board has stated "
i'.tervention in an NRC adjudicatory proceeding does not carry with it a license to step into,and out of the consideration of a particular issue at will."
Northern States Power Company (Prairie Island Units 1 and 2),
ALAB-288, 2 NRC 390, 393 (1975).
As Applicant discusses below, many of Texpirg's own citations to the record support the Board's decisica to take actions new complained of by TexPirg.
A.
TexPirg's citations to the record do not support its allegation that the Board required "all parties be present at all times in the hearing or lose their rights," for at the time Texpirg's motion was prepared, the Board had imposed no such requirement.
At Tr. 2738, the Board noted that the NRC's rules
-of practice require intervenors to be present during all hearing sessions but that the Board,.in deference to the intervenors in L
1 1
4 this proceeding, was not insisting on full attendance.
The Board admonished, however, that it was concerned about the quality of the record and the large amount of wasted time due to repeated asked and answered objections.
In light of these problems, intervenors were put on notice that the Board was con-sidering imposing strict attendance requirements.
(Tr. 4116; Tr. 5712-13, Tr. 5781).
Ultimately, after finding that inrer-venors had abused the Board's more liberal attempts to rein-in the scope of cross-examination, the Board did impose an attendance requirement on all parties who wish to cross-examine a particular witness.
(Tr. 5973-77).-*/
3.
Texpirg argues (Motion, p. 2) that the Board has im-properly limited the se' ope of intervenor cross-examination by restricting cross to "the literal direct testimony instead of the scope of the contention."
Under the Federal Rules of Evi-dence (Fed. R. Evid. 611(b)) and the Commission's rules of practice (Prairie Island, ALAB-244, 8 AEC at 867, affirmed, 1 NRC'l (1975)), cross-examination is normally limited to the scope of the witness's direct testimony.
The Board has applied this
-*/
TexPirg further asserts (Motion, p. 2) that the Board should have allowed intervenors to arrange among them-selves the order of their cross-examination, without regard to prior attendance.
As stated above, however, the Board has already ruled that that procedure burdens the record with numerous objections and unduly delays the proceeding.
.= -
i l
rule liberally throughout this proceeding and has often per-mitted cross-examination of matters which are within the scope of the contention, even if those matters were not specifically addressed in the witness's testimony.
(E.g.,
Tr. 2821, Tr. 2789).
TexPirg also argues, somewhat inconsistently (Motion,
- p. 2), that the Board restricted the scope of cross-examination by limiting TexPirg to the " literal basis mentioned in the contention."
This further argument, that the Board has confused the " substance" and " bases" of its contentions, was raised earlier with regard-to TexPirg's cooling lake contention and as the Board already explained (Tr. 2786-88, Tr. 2 9 28-30, Tr. 5010-11), this 4
contention is bounded by the five discrete allegations contained in its subparts-(a) through (e).
The truth is, TexPirg has never adopted a consistent f
position on-the scope of permissible cross-examination in this proceeding.
A review of transcript.pages 2781-38 and 2934-37, j
cited by TexPirg, reveals that TexPirg's counsel repeatedly sought to cross-examine on matters beyond the witness's testi-mony and the contention being addressed.
In fact, counsel ad-mitted this when he argued to'the Board at Tr. 2935-37 that he had the right to cross-examine Applicant's witness-Schlicht on-L any matters relevant to the "overall' decision as to whether or not this project meets NEPA requirements."
The Appeal Board r
l has ruled that cross-examination may-not be employed to expand the number. or boundaries of the. contested issues.
(ALAB-244,.
~
1 8 AEC at'867, 870).
I'
C.
TexPirg claims that the Board prevented effective cross-examination by demanding that a " cross-examiner tell the witness what his goal was."
TexPirg's own citations to the record demonstrate, however, that the Board's actions were con-sistent with its responsibility to prevent " repetitious and cumulative cross-examination," and to prevent counsel from wandering into pointles's areas,of cross-examination.
At Tr. 4102, Staff counsel requested the Board to ascertain from Mr. Scott the purpose of a long and seemingly irrelevant line of questioning in which Mr. Scott had apparently attempted to dissect, for the record, the Staff's calculation of the " turnover time" for water in the cooling lake.
This line of questioning had proceeded for a long period of time without any point being made' before Staff-counsel interjected to determine the purpose of counsel's questions.
A fair reading of the record leading up to Staff's interjection at Tr. 4102 supports the Board's decision to elicit from Mr. Scott the purpose of his line of questions.
It is equally clear from Mr.
Scott's responce and the ensuing conversation at Tr. 4103-4106 that Mr. Scott's alleged goal was not being accomplished by this line of questions and that the Board's interruption pre-vented him from wasting a large block of time.
Applicant would al=o note that Mr. Scott did not even attempt to resume pursuit of his alleged goal when he commenced cross-examination of Dr.
Gotchy at Tr. 4126, even though the Board had permitted him to so proceed.
(Tr. 4106).
_,n_
At Tr. 4944-54, the Board ruled that the relationship between water depth and spawning habitat had already been es-tablished on the record and requested Mr. Scott to explain what additional information he wished to elicit for the record that would not be cumulative and repetitious.
Mr. Scott refused to do this, claiming again that he did not wish to divulge the purpose of his questions.
When cross-examination proceeded again at Tr. 4160 (Mr. Scott's cross-examination had been limited, but he was not required to divulge the purpose of this line of questioning) he commenced to wander from subject to subject without establishing the point of his continued ques-tioning.
By Tr. 4168 Mr. Scott had quietly left.this subject without making any point or reaching any conclusion.
In Applicant's view these portions of the transcript, cited by TexPirg, typify the quality of cross-examination and
- /
demonstrate why the Board's interruptions were necessary.
In sum, the record fully supports the Board's requirement, at various times, that counsel divulge the purpose of his long lines of cross-examination.
_ */
At Tr. 3144, also cited by TexPirg, the Board interposed to
_ prevent Mr. Scott from entering into an argument with Appli-cant's witness Schlicht.
Judge Linenberger suggested that Mr.-Scott ask a direct question of the witness, which he did, and subsequently 1tr. Scott received a full and re-sponsive-answer.
Applicant cannot perceive any prejudice to TexPirg'from the Board's interruption. -
~
D.
TexPirg alleges that on several occasions the Board refused to allow counsel to continue cross-examination even though counsel stated that he had more questions to pursue.
TexPirg explains that "the Board and witnesses did not expect to be cross-examined by an attorney with a M.S.
in nuclear physics and 3.5. in Physics, Chemistry, and Math who had read the co' plete ER and FES. "
(Motion, pp. 2a3).
One implication
=
of this statement is that either the Board did not understand the'value of Mr. Scott's questioning or that it purposely limited TexPirg's cross-examination in order to protect Appli-cant's witnesses.-*/
Neither interpretation is supported by the record.
That record shows that cross-examination was repetitive, poorly prepared and often pointless.
The Board so found (Tr.
6298-99), and it was ce=pletely justified in setting limitations on this party's right to cross-examine.
E.
TexPirg claims that the Board improperly applied the Appeal Board's decision in Prairie Island (ALA3-244) to prevent intervenor Rentfro irem cross-examining on cententions other
-*/
Later in its Motion, TexPirg alleges that "the Board, especially Dr. Linenberger" interrupted ";exPirg's cross-examination at " critical times"'and asked questions which permitted the witness to change an answer and " reduce the damage" inflicted during prior cross-examination.
Tex?irg has not supported this allegation by citation to the record and indeed it.cannot..
than his one admitted contention regarding the health effects of high voltage transmission lines.
Ecwevar, TexPirg has mis-construed both the Licensing 3 card's ruling in this case and the ruling in ALA3-244.
As the transcript =akes clear (Tr.
3843-46), the Board did not hold that Prairie Island prevents an_intervenor frem cross-examining on another party's contentions, but rather applied a portion of the Prairie island rule which prevents such cross-examination unless an intervenor has a
" discernable interest" in the contention on which he wishes to cross-examine ~.
-(8 AEC at 868 and n. 15).
Since the state =ent of interest in Mr. Rentfro's petition to intervene only discusses the proximity of high voltage transmission lines to his residence, the Board properly refused to permit him to cross-examine Appli-c1nt's witness on the effects of heavy =etals in the Allens Creek cooling lake.
The Scard explained en the record that this
. holding was' directed only to Mr. Rentfro and that it was based cn the narrowness of his petition to intervene.
(Tr. 3846).
TexPirg's argument is legally and factually flawed and should be rejected by the Scard.
IV.
Other.Allecations of Board Error
'TexPirg's Motion also contains' assertions of alleged Board error with regard to rulings other than those' limiting
. cross-examination.
A.
TexPirg claims that "the Board specifically refused to hold some night and week-end sessions" to allow intervenors more input into the hearing process.
TexPirg's own citation to the record demonstrates, however, that the Board's position has been misrepresented.
At transcript pages 2462~through 2464 the Board exprecsly stated that it would be "more than willing to acccmmodate counsel" if an agreement were reached among the parties to hold such special sessions.
Mr. Scott responded that he couldn't "ask anymore" from the Board.
At no subsequent time has he approached Applicant's counsel requesting such a special session.
.The Board's position on holding extra sessions is perfectly clear in the record and that record does not support TexPirg's allegation.
(Tr. 6168-69).
f B.
TexPirg claims that (1) by refusing to permit Mr.
Rentfro to engage in cross-examination, (2) by working through lunch, (3) by dismissing two witnesses, and (4) by closing the hearing on Friday, the Board wrongly denied the right to cross-examine: Applicant's witnesses to intervenors who appeared later 1
[
in theLday..Again, TexPirg-has mischaracterized the Board's
[.
i actions.
The record simply does not support TexPirg's implica-
. tion'that the Board rushed witnesses off the stand to prevent i
l -
further. cross-examination.
As the record reflects, the Board had scheduled the
~
completion of cross-examination of Applicant witnesses for l
l
_14_
e k~
v that Friday, and TexPirg's counsel knew the schedule when he left the hearing room on Thursday evening.
(Tr. 3735).
Counsel also knew that if he, or any other intervenor, failed to appear for cross-examination bef. ore the Board was ready to dismiss a witness, that intervenor would forfeit his/her right to engage in cross-examination of that witness.
By failing to appear during the morning session on January 23, at which time all other cross-examination and Board questioning of these wit-nesses was completed, Mr. Scott, Ms. McCorkle and Mr. Bishop simply waived their right to cross-examir,e.
This occurrence, in fact, demonstrates the kind of conduct which ultimately led the Board to impose a strict attendance requirement.
C.
Finally, TexPirg asserts that the Board permitted the Applicant and Staff to introduce into evidence the Environmental Report Supplement (ER Supplement) and Final Supplement to the Final Environmental Statement (FSFES) when TexPirg's counsel was not present in the hearing room thereby preventing counsel from cross-examining those persons who wrote various sections of those documents.
The record will reflect'that the scheduled witnesses for Friday, January 23, were completed earlier than scheduled.
Applicant's counsel informed the Board that Applicant's witness sponsoring the ER Supplement had been waiting in the hearing..
room for several days and that Applicant wished to introduce that document into the record.
Staff's witness sponsoring the FSFES was also available and therefore Staff requested to in-trcduce that document following the Applicant's presentation.
TexPirg implies that the Board is somehow to blame for allowing this to occur.
In Applicant's view, if Mr. Scott prejudiced the interests of his client by failing to attend the hearing, the responsibility is his and not the Board's.
In addition, TexPirg does not appear to have familiarized itself with the applicable law regarding the intreduction of li-censing dor.uments in NRC construction permit and operating license proceedings.
Boston Edison Company (Pilgrim Nuclear Station, Unit 1), ALAB-83, 5 AEC 354, 369-70 (1972).
TexPirg's motion makes clear that counsel wanted to test the knowledge of Appli-cant's and Staff's sponsoring witnesses on every matter contained in these documents, but the Pilgrim decision T.ais clear that such knowledge is not required, and that the admissibility of such documents is established by their identification in the record.
Of cou.se, as the Board has already ruled, to the extent any Staff or Applicant witness' relies in his testimony on statements in the_ER Supplement or the FSFES, that witness may be cross-examined on the accuracy and validity of those statements.
(See Tr. 2934-37, Tr. 3170-75).
. = _.
.. =.
~.
2 V.
Referral and Certification Under Sections 2.730 (f) and
- 2. 7_18 (i).
The Commission's regulations set forth in 10 CFR 52.730 (f) proscribe interlocutory appeals to the Appeal Board except in cases where the Licensing Board in its discretion determines that a prompt review of its ruling "is necessary to prevent detriment to the public interest or unusual delay or
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If the Board makes such a determination, it expense.
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may refer its rnling to the Appeal Board for decision.--
No specific criteria for certification are set forth in the provi-sions of 52.718 (i), but the standards under this section are no less than those for referral.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271,1 NRC 478, 483 (1975).
- /
If the Board has issued a ruling on a particular issue, referral under S2.730 (f) is the proper procedure rather
. than certification under $2.718 (i).
Consumers Power Co.
(Midland Plant, Units 1 and 2), ALAB-152, 6 AEC 816, 818, n. 6 (1973).
- / The Appeal Board may refuse to accept a referral from the Licensing Board where there has been no strong showing that $2.730 (f) criteria have been met.
- See, e.g.,
Consumers L
Power Co. (Midland Plant, Units 1 and 2), ALAB-438, 6 NRC 638 (1977); Public Service Co. of Indiana-(Marble Hill Nuclear Generating Station, Units 1 and 2) ALAB-405, 5 NRC 1190, 1191 (1977); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-293, 2 NRC 660 (1975).
The general policy of the Commission, however, does not favor certification of an issue during the pendency of a proceeding, Id. at 483, and certification is the exception and not the rule, Toledo Edison Company, et al. (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 759 (1975).
Moreover, the Appeal Board has made it clear that it will undertake discretionary interlocutory review only sparingly, and only if the Licensing Board's ruling (a) threatens the party adversely affected with immediate and serious irreparable harm which could not be remedied by a late appeal or (b) affects the basic structure of the proceeding in a pervasive or unusual manner.
Pennsylvania Power & Light Co. (Susquehanna Steam Electric Sta-tior, Units 1 and 2), ALAB-59 3, 11 NRC 761, 762 (1980) ; Accord, Public Service Co. of Indiana (Marble Hill, Units 1 and 2),
ALAB-405, 5 NRC 1190, 1192 (1977).
See, Houston Lighting &
Power Company (South Texas Project, Units 1 and 2), ALAB-608, 12 NRC 168, 169 (1980).
TexPirg has failed to demonstrate that referral or certification of its seven questions is warranted under the criteria of SS2.730 (f) or 2.718(i).
On page 6 of its motion, TexPirg lists seven questions which it seeks to have reviewed by the Appeal Board.
However, TexPirg never addresses the criteria for referral or certification of its sev-.
- estions to the Appeal Board.
The only justification provide,cy TexPirg i
to support its request for interlocutory review is TexPirg's belief that the Licensing Board has committed " reversible error."
TexPirg states that the Licensing Board should correct its errors "or refer its ruling to the Appeal Board so they can promptly set the standards to be used in this proceeding."
(Motion, p. 4).
This conclus6ry statement hardly provides an adequate basis to justify an exception to the 'ule prohibiting r
interlocutory appeals.
The Appeal Board has made it clear that its role is not to monitor a Licensing Board's ruling on what evidence is 4
admissible and in what " procedural framework it may be adduced."
4 Toledo Edison Company (Da.vis-Besse Nuclear Power Station, Unit
- 1), ALAB-314, 3 NRC 98, 99 (1976).
In that cas.e, the Appeal Board noted_that-during the course of a proceeding a licensing board almost inevitably will be called upon to make numerous determinations respecting what evidence is permissible and in what procedural framework it may be adduced.
Were we to allow ourselves to be cast in the role of a day-to-day monitor of those deter-minations, we would have little time for anything else.
Id. at 99.
A brief look at each of the questions raised by
~
TexPirg will-show that all fall within this category; none are appropriate for referral or certification to the' Appeal Board.
In question 1, TexPirg raises the issue of whether the Licensing Board can stop cross-examination "even though 2.757 has.not been violated?"
This question is stated in the '
nesE. --
.w.
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abstract without any reference to specific rulings made by the Licensing Board.
Second, to the extent TexPirg refers to rulings made by the Licensing Board with respect to other parties, TexPirg has no standing to raise the grievances of other parties who are not represented by TexPirg.
Houston Lightinc & Power Co.
(Allens Creek Nuclear Generating Station, Unit 1), ALAB-631, NRC (Slip op at 3-4, February 4, 1981).
Finally and most importantly, 10 CFR S2.757 (c) authorizes the Licensing Board to "[tlake necessary and proper measures to prevent argumentative, repetitious, or cumulative cross-examination."
As we have dis-cussed above, the Licensing Board was totally justified, in the circumstances of this case, in exercising its discretion to stop such cross-examination.
Accordingly, TexPirg's question does not warrant Appeal Board review.
In question 2, TexPirg raises the issue of whether the ASLB " improperly stopped TexPirg from, cross-examination."
-Again, as discussed above, the Licensing Board was more than justified, in the exercise of its discretion under 52.757, in placing reasonable limits on TexPirg's repetitious cross-examination.
Nothing in TexPirg's motion demonstrates that the Board in any way abused its discretion with respect to TexPirg's right of cross-examination.
Accordingly, Appeal Board review is not warranted.
In question 3, TexPirg raises the issue of the Board's ruling with respect to cross-examination by Intervenor Rentfro on another intervenor's contention.
This question is not appropriate for referral or certification since the Appeal Board has previously ruled that the Licensing Board's ruling with respect to Mr. Rentfro's cross-examination "is scarcely worthy of our interlocutory examination."
S,ee Allens Creek, Appeal Board Memorandum and Order dated February 5, 1981.
In question 4, TexPirg complains of various procedural rulings made by the Licensing Board during the absence of TexPirg's counsel.
As discussed above, the Board acted in a more than reasonable manner with respect to the scheduling and dismissal of witnesses.
TexPirg's complaint arises as a direct result of its own choice in not attending the evidentiary hearing.
Accordingly, this question does not warrant certification or referral to the Appeal Board.
In question 5, TexPirg questions whether the ASLB properly allowed the introduction into evidence of the ER Supplement and FSFES without making available for cross-examina-tion those persons who prepared the document.
This is exactly the type of question relating to the admissibility of evidence which the Appeal Board in To'edo Edison, suora, stated did not.
W
warrant interlocutory review.
Applicant and Staff dccuments, as we have discussed above, were properly received into evidence by the Board in accordance with the long standing practice of this agency and Board decisions.
(ALA3-93, 5 AEC at 369-70).
Moreover, TexPirg has not shown how it has-been prejudiced by the Board's ruling since both Applicant and Staff have provided witnesses on all of TexPirg's contentions relating to these docu=ents.
TexPirg has provided no basis to justify referral or certification of this question to the Appeal Board.
In question 6, TexPirg requests that new members of the Licensing Board be appointec or that the Appeal Scard pro-vide sc=e unspecified " firm direction" to the Licensing Board.
Neither.of these requests is appropriate for interlocutory re-view.
First, TexPirg's request for sc=e undefined " firm direction" by the Appeal Board is much too vague to provide an independent basis for referral or certification.
Second, the Appeal Board has already ruled that the question of replacement of the Licensing Board me=bers is not appropriate for censidera-tion by the Appeal Board at this time.
The Cc= mission's regula-tions (10 CFR S2.704(c)) require that a motion to disqualify members of a Licensing Board must be supported by an affidavit
" setting forth the alleged grounds for disqualification."
This procedure nust be strictly followed.
(ALA3-630, Slip op. at 3).
TexPirg has not filed such an affidavit nor has it set forth any good canse whatsoever for disqualification of the present Board members.
Accordingly, there is no basis for referral or certification of this question to the Appeal Board at this time.
In question 7, TexPirg asks whether the evidentiary hearing should be delayed until the above six questions are answered by the Appeal Board.
Since none of the six questions are appropriate for referral or certification, obviously this question need not be considered by the Board.
VI.
Conclusion For all of the foregoing reasons, Applicant believes the Board should deny each of.TexPirg's requests for reconsidera-tion of Board rulings.
In addition, the Board should deny TexPirg's request for referral or certification of various issues to the Appeal Board.
Respectfully submitted, OF COUNSEL:
4tlf, [ [/
n-
'ack R. Newhan LOWENSTEIN, NEWMAN, Robert H.'Culp REIS & AXELRAD David B.
Raskin 1025 Connecticut Ave.,'N.W.
1025 Connecticut Ave., N.W.
Washington, D.C.
20036 Washington, D.C. 20036
-BAKER & BOTTS J. Gregory Copeland 3000 One Shell Plaza 3000 One Shell Plaza Houston, Texas 77002 Houston, Texas 77002-ATTORNEYS FOR APPLICANT HOUSTON LIGHTING L POWER COMPANY UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of S
S HOUSTON LIGHTING & POWER COMPANY S
Docket No. 50-466 S
(Allens Creek Nuclear Generating S
Station, Unit 1)
S CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Appli-cant's Response to TexPirg's Motion for Reconsideration of Various Rulings During Evidentiary Hearings, and for Certifi-cation of Various Issues to the Appeal Board in the above-captioned proceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand-delivery this 4th day of March, 1981.
Sheldon J. Wolfe, Esq., Chairman Hon.. Charles J.
Dusek Atomic Safety and Licensing Mayor, City of Wallis Board Panel P.
O.
Box 312 U.S.. fuclear Regulatory Commission Wallis, Texas 77485 Washington, D. C.
20555' Hon. Leroy H. Grebe Dr.
E.
Leonard:Cheatum County Judge, Austin County Route 3, Box 350A P.
O.
Box 99 Watkinsville,_ Georgia 30677 Bellville, Texas 77418
~
11r. Gustave A.
Linenberger Atomic Safety and Licensing
' Atomic Safety and Licensing Appeal Board
' Board Panel U.S.
Nuclear-Regulatork
'U.S. Nuclear Reg' latory Commission-Commission u
Washington, D.
C.
2055L Washington,-D.
C.
20555 Mr.' Chase R.
Stephens:
Atomic Safety-and Licensing JDocketing and Service'Section
' Board Panel' Office of the Secretary "U.S'. Nuclear Regulatory of the! Commission
~
Commission:
t Washington, D. C.
20555 washington, D.
C.
20555 Susan Plettman Richard Blach-David Preister Sta'ff Counsel Texas Attorney' General's Office U.S.
Nuclear Regulatory P.
O.' Box 12548, Capitol' Station Commission Austin, Texas 78711_
Washington, D..C.
20555 w
e Bryan L.
Baker Brenda McCorkle 1118 Montrose 6140 Darnell Houston, Texas 77019 Houston, Texas 77074 J. Morgan Bishop W.
Matthew Perrenad 11418 Oak Spring 4070 Merrick Houston, Texas 77043 Houston, Texas 77025 Stephen A.
Doggett Wayne E.
Rentfro P. O. Box 592 P.
~
4327 Alconbury 5810 Darnell Houston, Texas 77021 Houston, Texas 77074 arro Hinderstein James M.
Scott 609 Fannin, Suite 521 13935 Ivy Mount Houston, Texas 77002 Sugar Land, Texas 77478 D. Marrack 420 Mulberry Lane Bellaire, Texas 77401 I
f.
W Jack R. Newman
-.