ML20010B153

Response Opposing Applicant 810724 Oral Motion to Quash F Cortez & J Tobola Subpoenas.Motion Impermissible Under 10CFR2.720(F).Alternatively,testimony Is Relevant. Certificate of Svc Encl.Related Correspondence

ML20010B153
Person / Time
Site:	South Texas
Issue date:	08/07/1981
From:	Sinkin L Citizens Concerned About Nuclear Power, INC.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8108140147
Download: ML20010B153 (4)

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NUCLEAR REGULATORY COMMISSION \1 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD g g i19M & ,

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.: Q' In the Matter of (

) Docket Nos. 50-4980L ~~6d p HOUSTON LIGHTING AND POWER CO. ET AL ( 50-4990L 4; g d (South Texas Project, Units 1 & 2) ) g CITIZENS CONCERNED ABOUT NUCLEAR POWER, INC. (CCANP) RESPON dM TO APPLICANTS' MOTION TO QUASH SUBPOENAS FOR MS. FREDA COR MR. JIM TOBOLA 7 / TUG 131981 - )..

On July 24, 1981, during a hearing in the above-entitled ma r",* EE$?" f #/

Applicants made an oral motion to quash the previou' sly issued sub anas

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for Ms. Freda Cortez and Mr. Jim Tobola. Both subpoenas were iss the request of Citizens Concerned About Nuclear Power, Inc. (CCANP . IM \,6 The Soard in these proceedings provided CCANP an opportunity to reply in writing to the Applican's' motion.

In response to Aplice.mts' motion to quash, CCANP offers the following:

A. 10 CFR Section 2.720(f) provides for motions to quash a subpoena. The only party identifie3 as competent to make occh a motion is "the person to whom the subpoena is directed." Neither Ms. Cortez nor Mr. Tobola made such a motion. Applicants' motion is, therefore, moot as impermissible under the rules of the Nuclear Regulatory Commission.

B. Assuming arguende that Applicants are entitled to make such a motion, CCANP responds as follows:

1. A request for a subpoena requires only a " showing of general relevance of the testimony or evidence sought." 10 CFR Section 2.720(a). A showing of general relevance appears in thc transcript of the July 24, 1981 hearing at which the motion to quash was made. Among the points of relevance noted by CCANP were:

(a) the interface between management and non-management personnel at the South Texas Nuclear Project.(Tr. 7844)

! (b) daily interactions between management and non-management personnel demonstrating the managerial character and technical competence

• l of the Applicants. (Tr.7845) l (c) Applicant abdication of responsibility to contractor.

( (Tr. 7847).

(d) working conditions at the South Texas Nuclear Project.

(Tr. 7851).

(e) attempts by witnesses to correct various matters and management response to those corrective efforts. (Tr. 7851, 7852)

(f) unsatisfactory interface by one witness (Ms. Cortez) with a member of Applicants' quality assurance staff. (Tr. 7852)

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2. Reasons (a) through (f) above are sufficient to show the

! relevancy of the teetimony sought.

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( i C. Should the Board not consider the reasons set forth in B above as sufficient to deny Applicants' motion, CCANP offers the following-additional reasons:

1. Almost all testimony by Applicants has been and will be the testimony of persons in management or supervisory positions. Ms. '

i Cortez and Mr. Tobola offer the Board an opportunity to see this project from a different perspective - the perspective of someone who is not in charge but rather someone who is subject to' the acts of those who are in charge.

2. The essence of the testimony of both witnesses will be the existence of poor morale at the South Texas Nucleer Project and the root causes of this poor morale. Among the root causes these witnesses can testify to are: high turnover, personnel assigned tasks for which

{ they are not qualified, constantly changing procedures, issuance of g' 'g ~c equipment unsuitable for the task given, arbitrary acts by management, and lack of concern for worker safety.

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3. A decision on the operating license is predictive.in nature. In addition, Issue B in these proceedings involves a judgment on the remedial measures Applicants claim to have taken. To predict future performance and particularly to predict the weight to be given Applicants' promises of remedial action, the Board should have the broadest possible exposure to acts of Applicants and their agents and

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. particularly exposure to how Applicants and their agents respond to situations calling for remedial actions. For example, if Applicants permitted a very dangerous condition to exist which threatened their own workers, Applicants' commitment to public health and safety may be called into question. If Applicants failed to remedy the dangerous condition despite complaints of employees, Applicants' commitment to remedy other unacceptable conditions or practices may be called into-question.

D. While many objections made on July 24, 1981 to said testimony revolved around the question of safety-related versus non-safety-related work, the distinction is not.as clear as it appears on its face for the following reasons:

1. Working conditions producing poor morale will have a tendency to adversely affect safety related work.

2. Non-safety related work which results in an operational failure during construction could create a safety-related problem. .

3. Poor workmanship in non-safety-related areas may be predictive of poor workmanship in safety-related areas, especially when the area of work in to eventually include safety-related work.

Hei there been closer attention paid to concrete and welding work prior to the safety-related phases of such work, the subsequent safety related failures might have been avoided.

E. Undet the Federal Rules of Evidence, the testimony sought should be allowed.

1. The ' testimony of Ms. Cortez and Mr. Tobola will not create an unjustifiable delay or expense as their testimony is not expected to take any lengthy amount of hearing time. Furthermore, compared to the amount of testimony presented by Applicants, the testimony of CCANP witnesses is considerab.ly less. CCANP testimony will promote a clearer showing of the truth of the matters in contention in these proceedings.

F.R.E. 102

____m

2. In deterinining the relevancy of the testimony sought, the test is whether such evidence will have "any tendency to make the existence of any fact that is of consequence to the determination of the action inore probable or less probable than it would*be without the evidence." (emphasir., added) F.R.E. 40L CCANP clearly shows in this response that the testimony sought has at least some tendency to show the managerial character and competence of Applicants.

For the above and foregoing reasons, CCANP urges the Atomic Safety and Licensing Board in these proceedings to:

Deny the Applicants' motion to quash as impermissible under 10 CFR Section 2.720(f), or altern.itively Deny the Applican'ts' motion to quash based on the above showing of the relevancy of the testimony sought.

Res ectfully, submitted, L

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Lanny Sinkin Intervenor Representative for Citizens Concerned About Nuclear Power, Inc.

August 7, 1981 o

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MTE.Q . CUP 332:'.?my:,7 l CERTIFICATE OF SERVICE I hereby certify that the above and foregoing Citizens Concerned About Nuclear Power, Inc. (CCANP) Response to Applicants' Motion to Qussh Subpoenas for Ms. Freda Cortez and Mr. Jim Tobola was sent in the United States Mail, first class postage prepaid on this 7th day of August, 1981 to the following:

Charles Bechhoeffer, Esq. Atomic Safety and Licensing Chairman Board Panel Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Docketing and Service Section Dr. James C. Lamb, III Office of the Secretary 313 Woodhaven Road U. S. Nuclear Regulatevy Commission Chapel Hill, North Carolina 27514 Washington, D.C. 20555 Mr. Ernest E. Hill Lawrence Livermore Laboratory ~

University of California @

P. O. Box 808, L-123 4/

Livermore, California 94550 8 g w

'- William S. Jordan, III, Esq. 27 g Harmon & Weiss -

AU611 G 1725 I Street, N.W. M .

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Washington, D.C. 20006 9 ggg..:

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I Jay Gutierrez, Esq. C5 g Hearing Attorney A Office of the Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Brian E. Berwick, Esq.

Assistant Attorney General for the State of Texas P. O. Box 12548 Capitol Station .

Austin, Texas 78711 Thomas Hudson, Esq.

Baker and Botts One Shell Plaza Houston, Texas 7'002 Jack R. Newman, Esq.

Newman, Axelrad, Toll, & Reis 1025 Connecticut Ave., N.W.

Washington, D.C. 20036 7

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