ML20003H523
| ML20003H523 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 05/01/1981 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | HOUSTON LIGHTING & POWER CO., NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| ISSUANCES-OL, NUDOCS 8105060268 | |
| Download: ML20003H523 (7) | |
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-9=n UNITED STATES OF AMERICA 2 MAy NUCLEAR REGULATORY COMMISSION 3I *
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,~4 ATONIC SAFETY AND LICENSING BOARD
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,o Before Administrative Judges:
[ga Charles Bechhoefer, Chairman Dr. James C. Lamb Mr. Ernest E. Hill 5'WED ;ijgy
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7 In the Matter of:
HOUSTON LIGHTING AN9
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Docket Nos. STN 50-498 OL POWER COMPANY, ET AL.
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STN 50-499 OL (South Texas Project s
Units 1 and 2)
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May 1,1981 OL(1lT
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MEMORANDUM AND ORDER (Ruling upon (1) Staff Motion Relative to
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.'A Persons to be Subpoenaed As
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.g Witnesses Pursuant to 10 CFR 52.720, 4
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and (2) Acolicants' Motion for Sanctions)
A.
On April 8,1981, the NRC Staff filed a tr.otion to require Citizens for Equitable Utilities, Inc. (CEU) and Citizens Concerned About Nuclear Power, Inc. (CCANP), Intervenors in this proceeding,to (1) give notice of application for any subpoenas in this proceeding, and (2) set out the questions they intend to propound to any person they intend to subpoena and the substance of the answers they hope to elicit to those questions, both by a specified date (which has now passed). On April 20,1981, the Applicants filed a response in support of the Staff's requests and seeking certain additional procedural relief. On April '22,1981, the Inter-venors responded in opposition to the Staff's requests.
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. reasons which follow, we hold that certain information concerning witnesses to be subpoenaed should be supplied to the Staff and Applicants by Saturday, fiay 16,1981, but tha't the questions to be propounded and answers sought to be elicited need not be provided.
In support of its motion, the Staff first refers to a lengthy list of potential witnesses filed by the Intervenors on tsarch 30,1981, and it opines that many of the persons are likely to be subpoenaed as adverse witnesses. That this prognostication is well founded is raflected by Intervenors' letter to us dated April 23,1981 (the date on which prepared testimony was supposed to be filed), which stated that none of the witnesses en which the Intervenors intended to rely would appear voluntarily, that all would have to be subpoenaed, and that the Ir.tervenors were thus unable to file prepared direct testimony. The Staff claims that the relief it is seeking is consistent with the Commission's general practice of requiring the filing of prepared testimony (10 CFR 52.743(b)) and is necessary to avoid surprise and to enable it to prepare its case and its cross-examination l
adequately. The Staff also expresses its v'iew that several witnesses on Intervenors' list apparently had nothing to do with the construction of or inspections at the South Texas facility; the inferation sought would therefore assist the Staff in evaluating the potential relevance of the testimony.
In their response, the Applicants general 1y reiterated the points l
stressed by the Staff. They additionally sought permission for them and 1
the Staff each to file responses to any of the Intervenors' applications f
for subpoenas, on the ground that the Intervenors had identified many l
. individuals at a late date and "because it appears to Applicants that many of the individuals do.not possess relevant information for the record, and because many can provide only repetitive and cumulative evidence".
The Applicants recognize that the filing date suggested by the Staff cannot be met (in view of the time for responses permitted by the rules) but suggest that the subpoena applications be filed within five (5) days of this Order.
In opposing the Staff's request, the Intervenors describe the April 23, 1981 filing date sought by the Staff as applicable only to prepared testimony by willing witnesses, not to adverse witnesses. They also note that the rules contemplate the filing of testimony as late as 15 days prior to the hearing session at which the witnesses will be heard, and they observe that their witnesses will not likely be heard during the sessions scheduled for May, 1981.
(They appear to be correct in this esti' ate.) Moreover, they m
assert that there is no requirement that intervenors divulge specific ques-tions to be asked of subpoenaed witnesses; rather, in the case of subpoenas, they claim that only " general relevance" need be demonstrated.
10 CFR 52.720(a). They assert that previous notice of questions might taint the witnesses' responses. They state that when they seek subpoenas they will provide the Board--but presumably not the other parties--with adequate information to determine the relevancy of the testimony sought.
The Staff's request requires us to balaned two potentially conflicting goals:
t' hat of avoiding surprise, against the possibility that some testi-many would be tainted by advance notice of the questions to be,;ropounded.
' In our view, the NRC rules provide us ample authority to balance these goals in a manner appropriate to the circumstances of a particular proceed-ing. See 10 CFR 52.718, especially paragraphs (e).and (m).
In the present situation, with charges and countercharges involving such matters as harass-ment of QA/QC inspectors and the competence and dadication of management, and where many potential witnesses of the Intervenors appear to be adverse to the Intervenors' position, we do net view it as appropriate for the Inter-venors to furnish questions they expect to propound and answers they expect to receive from subpoenaed witnesses (or, indeed, for them to have furnished prepared testimony for such witnesses). To the extent the Staff and Appli-cants seek questions and answers, therefore, the Staff's motion is denied.
The goal of avoiding (or at least minimizing) surprise can, however, be achieved in some measure by the submission, along with subpoena requests, of a description of.the general relevance of the testimony, as prescribed by 10 CFR 52.720(a). Such a showing is not only contemplated by the rules but would not appear likely to "ta, int" the testimony of the proposed witnesses.
We also believe that the Applicants and Staff should have the benefit of this information 15 days prior to the earliest hearing session at which the witnesses could appear.
Because the Intervenors' witnesses could potentially be heard during the week of June 1-4, we will require that sub-poena requests (including a description of general relevance) be filed by
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i i j Saturday, May 16, 1981.
(Those requests should be hand-served at the hearing that day, if not received,by the parties previously.)1/
We also grant the' Applicants' request for them and tha Staff to be permitted to file responses to the subpoena requests. These responses should be filed no later than Wednesday, May 20, 1981.
(Such responses also should be hand-served at the hearing.)
In that connection, we note that with respect to harassment allegations, seemingly cumulative or repetitive testimony might well bear upon the seriousness of such allegations; objections on that basis will not routinely be granted.
s In addition, to the extent that surprise may result from the examination of subpoenaed witnesses, we will provide the Applicants and Staff sufficient opportunity to develop and present additional rebuttal or direct testimony during later hearing sessions.
B.
On April 9,1981, the Applicants filed a motion for sanctions against CCANP for its asserted failure to comply with one aspect of our Order compelling discovery, dated March 18, 1981 In relevant part, the Order in question provided that:
CCANp is further directed to review the tape recording it received from Mr. Swayge's attorneys and provide pursuant to the protective Order the identities oj[ the insoectors interviewed in such recording if they pro-vided information relevant to Contentions 1 or 2 or information likely to lead to information relevant to Contentions 1 or 2.
Order at p. 3 (emphasis supplied).
1/ The fdregoing schedule for subpoena requests and descriptions of general relevance will not apply to individuals identified by the Staff pursuant to our Order of March 24,1981 (assuming the Appeal Board upholds thatOrder).
Should it be necessary, we will later adopt a schedule governing those witnesses.
- The Applicants claim that.CCANP declined to review the tape recording and provide the required information; they seek an order for CCANP to " deliver the subject tape recording to Applicants' counsel within five (5) days or be dismissed from the. proceeding."
C^ANP's response pointed out that the March 18 Order required only the identification of inspectors interviewed, not submission of the entire tape.
It added that the identities of the inspectors had been includad in the list of names provided under Protective Order on March 30, 1981.
We agree with CCANP that only the identities of inspectors were required to be provided by our March 18,1981 Order. We also will accept CCANP's representation that the names have already been provided and, on that basis, will dismi:;s the Applicants' motion as moot. However, upon examination of the March 30, 1981 list of names, we must admit that it'is unclear to us which of the numerous names are those derived from the tape.
If the Appli-cants wish, cCANP should provide (subject to the Protective Order) further specification of which persons on the list are inspectors identified on the tape.U l
U We agree with CCANP that, if the Applicants had inquired of that organization, they might have obviated their perceived necessity to file a motion of this type. Moreover, nothing we have said here should be taken as expressing any opinion 6n the appropriateness of the sanctions sought by the Applicants in the circumstances of this proceeding.
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For the foregoing reasons, it is, this 1st day of May, 1981, ORDERED l
That:
1.
The Staff's Motion Relative to Persons to be Subroenaed as Witnesses Pursuant to 10 CFR 52.720 is granted in part and denied in part.
2.
The Applicants' Motion for Sanctions Against CCANP is dismissed as moot.
FOR THE ATM0IC SAFETY'AND LICENSING BOARD 2
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Charles Bechhoefer, Cha,prman ADMINISTRATIVE JUDGE f
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