ML20010C325
| ML20010C325 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 08/14/1981 |
| From: | Gutierrez J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8108190352 | |
| Download: ML20010C325 (10) | |
Text
7 8/14/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD MLI N In the Matter of s\\
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NRC STAFF RESPONSE TO CITIZENS C0iiCERNED ABOUT 14UCLEAR POWER'S RESPONSE TO APPLICANTS' 110 TION T0 QUASH SUBPOENAS FOR MS. FREDA CORTEZ AND MR. JIM T0BCLA INTRODUCTION During the January 24, 1981, session of the evidentiary hearings in the above captioned matter applicants' made an oral motion to quash the subpoenas ad testificandum previously issued to Freda Cortez and James Tobola. (Tr. 7845,7858). The challenged subpoenas had been previously granted in accordance with 10 CFR 9 2.720M on May 21, 1981.
(Tr. 2685).E At that time, Citizen, Concerned About Nuclear Power (hereinafter referred to as CCAllP) made a showing of general relevancy as reo.uired by 10 CFR 9 2.720.
CCAllP represented 11. hoped to elicit from Ms. Cortez and Mr. Tobola testimony relative to Inspection and Enforcement (I & E)
If 10 CFR b 2.720(a) states in relevant part:
"On application by any party, the designated presiding officer gog
... will issue subpoenas requiring the attendance and testimony of witnesses or the production of evidence. The j
1 officer to whom application is made may require a showing of general relevance of the testimony or evidence sought, and may withhold the subpoena if such a showing is not made, but he
/j shall not attempt to determine the admissibility of evidence."
y See, Intervenor's Request for Subpoenas, undat.ed, wherein subpoenas were requested for 20 individuals.
8108190352 810814 gDRADOCK05000
. a Report 81-11 and its companion flaport 81-17.3.] In addition, CCANP stated Ms. Cortez would testify to unspecified "other areas."
Subsequent to the issuance of these subpoenas, the Intervenors notified all parties on July 10, 1981, that they no longer intended to call any witnesses with respect to toe incidents reported in I & E Report 81-11, and presumably its companion Report 81-17.O Nevertheless, on July 24, 1981, CCANP indicated it st;,1 intended to call Ms. Cortez and Mr. Tobola as witnesses in this proceeding.
(Tr. 7843). As a result of this apparent inconsistency, the applicants soughc clarification from CCANP concerning the general relevancy of the testimony it now sought from Ms. Cortez and Mr. Tobola.
(Tr. 7844). The applicants and Staff reasoned that sirce these individuals were no longer expected to testify to matters contained in i & E Reports 81-11 and 81-17, there was no showing on the record of the general relevancy of the testimony CCANP sought to elicit from these persons. Accordingly, the applicants noved to quash the subpoenas previously issued to Ms. Cortez and Mr. Tobola.
(Tr. 7845, 7857).
Based upon the state of the record at the hearing, the Staff supported the Applicants' oral motion to quash. (Tr. 7858).
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See Inspection and Enforcement Reports 81-11 and 81-17, Docket 50-498/50-499.
These Reports addressed allegations of, inter alia, intimidation and harassment of employees at the South Texas Project and a conspiracy to obstruct an NRC investigation.
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See, let ter, dated July 10, 1981, from William S. Jordan, III, Esq., Counsel to Intervenor Citizens for Equitable Utilities, to Maurice Axelrad, Esq. Mr. Jordan further stated in this letter that he had been authorized by Mr. Lanny Sinkin of CCAMP to respond on behalf of that organization relative to the subpoenaed witnesses.
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Tu Tne Board agreed with the applicant 4 and Staff and accordingly required CCANP to set forth additional reasons by August 3,1981, relative to why Ms. Cortez and Mr. Tobola should be subpoenaed (Tr. 7859-60).5.f In its supplemental filing of August 10, 1981, CCANP essentially offers two arguments relative to the Applicants' motion to quash:
(1) that the applicants' motion is impermissible under the rules of practice of the Nuclear Regulatory Commission and (2) if the motion is permitted to be made, it should be denied since in its most recent filing, CCAHP made a further showing of general relevance.O It is the Staf f ': position that (1) the rules of practice of the Nuclear Regulatory Commission do not prohibit the motion brought by the applicants and SJ This deadline was subsequently extended to August 10, 1981. The Staff and Applicants were given until August 14, 1981, to respond to CCAHP's filing.
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In its filing of August 10, 1981, the relevant testimony which CCANP represents it hopes to elicit from Ms. Cortez and Mr. Tobola includes:
the interfcce between management and non-management; daisy interactions between management and non-management; abdication of the applicants' responsibilities to the contractor; attempts by witnesses to correct various matters while employees at the sit and maaagement's response to those corrective efforts; personnel being assigned tasks for which they are not qualified; the fact procedures are in constant flux; and alleged arbitrary acts by management, as well as the lack of concern on tiie part of management for worker safety.
Assumedly, these areas of testimo.1y would relate to a specific issue i
this Board must decide.
From the pleading, it would appear CCANP l
contends this testimony will be relevant to whether Houston Lighting and Power has the requisite corporate character and competence to l-safely complete construction of and operate the South Texas Project.
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. 0 (2) that in its subsequent filing of August 10, 1981, CCANP has made the minimal showing of general relevancy required by 10 CFR 9 2.720 to justify the issuance of subpoenas to Ms. Cortez and Mr. Tobola. To be sure, and it should be stressed, that based upon the information the Staff currently possesses it is unlikely that either Hs. Cortez or Mr. Tobola can offer testimony which is competent, probative, and material to the issues this Board must ultimately decide.E However, the surest way and most appropriate manner to confirm this position is by voir dire and eventually through cross-examination.E II.
DISCUSSION (6) THE RULES UF PRACTICE OF THE NUCLEAR REGULATORY COMMISSION DO NOT PROHIBIT THE APPLICANTS' FROM BRINGING A MOTION TO QUASH THE SUBPOENAS OF FREDA CORTEZ AND JAMFS TOBOLA In its August 10, 1981, filing CCANP reasons:
"10 CFR Section 2.720(f) provides for motions to quash a subpoena.
The only party identified as competent to make such a notion 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 Commi ssion.
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In this regard, it should be mentioned Ms. Cortez is a clerk in the electrical termination shack where no safety related activity is currently being performed.
Similarly, the Staff has been informed that Mr. Tobola was a backhoe operator assigned to the electrical o,artment digging trenches for non-safety related lines and left the site in January 1981. Accordingly, by reason of both their job positions and locations at the site it is unlikely that they would be privy to information which might be of aid to the Board. The Staff would object to any testimony Ms. Cortez or Mr. Tobola might offer in the nature of " personnel problems" typical of what is to be expected on any job site where three thousand people are employed.
Their testimony must relate to specific issues before this Board to be admissible.
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This procedure was previously suggested by the Staff during oral argument on this matter on July 24, 1981.
(See Tr. 7855).
That this ~1s a misreading of 10 CFR 9 2.720(f) is beyond question.
Sub Part(f) states in full:
"On motion made promptly, and in any event at or before the time specified in the subpoena for compliance by the person to whom the subpoena is directed, and on notice to the party at whose instance the subpoena was issued, the presiding officer or, if he is unavailable, the Connission may:
(1) Quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any matter in issue, or (2) condition denial of the motion on just and reasonable terms."
The clause within Sub Part(f) quoted by CCANP limits the time an individual has to make a motion.to quash a subpoena.
The clause qualifies the word "promptly" and does not limit the individual who may make such a motion.
Sub Part(f) requires a motion to quash be made promptly, "and in any event at or before the time specified in the subpoena for compliance by the person to whom the subpoena is directed,..." ilowhere does 10 CFR 5 2.720 restrict the person who may make such a motion to quash only to the subpoenaed individual.
(b) CCANP HAS SHUWil THE TESTIMONY SOUGHT FROM MS. CORTEZ AND MR. TOBOLA IS OF GEllERAL RELEVAHCE TO THIS PROCEEDING, AND THEREFORE, SUBPOENAS SHOULU BE ISSUED. THE QUESTION REMAINS FOR VOIR DIRE AND CROSS EXAMIkATION WHETHER EITHER WITNESS IS COMPETENT TO TESTIFY IN THE SUBJECT AREAS OUTLINED OR CAN OFFER TESTIMONY WHICH IS PROBATIVE AHD MATER?al TO ANY ISSUE THIS BOARD MUST ULTIMATELY DECIDE.
10 CFR 9 2.720(a) permits a presiding officer to condition the issuance of a subpoena upon a showing that the testimony sought to be elicited from the subpoenaed witness is of general relevance to the proceeding.
This regulation further states that no attempt should be made to determine the admissibility of the evidence sought from subpoenaed witnesses at the stage of issuing the subpoena. A presiding officer may quash a subpoena if the information sought is unreasonable
or requires evidence not relevant to any matter in issue.
This rule has been strictly construed in favor of the issuance of subpoenas. The Appeal Board has held that the Commission's rules of 1
practice preclude a Board from declining to issue a subpoena on any basis other than that of a lack of general relevance of the testimony sought.
Public Service Company of New Hampshire, et al (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 93 (1977); affirmed CLI-78-2, 7 NRC (1978); affirmed sub. nom., New England Coalition on Nuclear Pollution v. NRC, 582 F. 2nd 87 (1st Cir.1978). The Licensing Board is specifically prohibited 6t the stage of issuing a subpoena from attempting to determine the admissibility of evidence hoped to be acquired through that subpoena.
Id.
In Pacific Gas & Electric Company (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683 (1979) a corporation sought to have a subpoena quashed on grounds of both relevancy and burdensomeness. The Appeal Board's answer to this motion was succinct:
"We need not prolcng this opinion with an extended canvass of the jurisprudence in this area; fortunately, this has been done for us in Chief Judge Bazelon's decision in Federal Trade Commission v.
Texaco, Inc. 555 F. 2nd 862 (DC Cir.1977), certiorari denied, 431 U.S. 974 (1977). As there noted, the information sought by an administrative subpoena need only be ' reasonably relevant' to the inquiry at hand. United States v. Morton Salt Company 338 U.S.
632, 652 (1950). And, on the matter of burden, '[tJhe question is whether the demand is unduly burdensome or unreasonably broad...
Broadness alone is not sufficient justification to refuse enforcement of a subpoena.
Thus courts have refused to modify investigative subpoenas unless compliance threatens to unduly disrupt or seriously hinder normal operations of a business.
Texaco, 555 F. 2nd at 882 (emphasis in original; footnotes omitted).'
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- Texaco, in. common with most (if not all) of the.dec'sions cited i
therein, was concerned with a subpoena issued. in the furtherance of r
an agency investigation. The same standards are applicable, however.
- to subpoenas issued in connection with adjudicatory proceedings.
This is illustrated by, e.g., Federal Trade Commission ex. -rel.
Kaiser Aluminum, v. Dresser ' Industries Inc., 41 Ad. L. 2nd 517 (DOC 1977)."
With respect to the instant subpoenas, neither the individuals sub-poenaed nor any other party has maintained their testimony would be burdensome. At least some of the information sought fron'Ms. Cortez and
-Mr. Tobola by CCANP is arguably relevant, on its face, to the inquiry of whether Houston Lighting and Powr has the technical competence and corporate character.to safely construct and operate the South Texas Project.
It is not this Board's role in issuing subpoenas to rule.upon the admissibility of any testimony CCANP may hope to elicit from the two subpoenaed witnesses.
It is emphasized, however, that it is not denied by the Staff that good arguments can and should be made at the appropriate time that both
- witnesses may not be competent to testify to issues outlined in CCANP's.
I filings of August 10,1981.E The competency of witnesses to testify and the probative value of any such testimony offered can be more appropriately examined and tested during voir dire and cross-examination.
III.
CONCLUSION For the reasons aforesaid, it is respectfully submitted:
(1) the rules of practice of the Nuclear Regulatory Commission do not prohibit y
In addition, it will be incumbent upon CcAhP to make a more particularized showing when specific questions are put to these witnesses relative to just-how the testimony of Ms. Cortez and Mr. Tobola is relevant and material-to specific issues before this Board.
It is only stressed that at this juncture such arguments are premature.
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8-6 an individual other than the person to whom the subpoena is directed ~ from moving to quash that subpoena and (2) CCANP has made the miniral showing of general relevancy required to warrant the issuance of' subpoenas 7.d testificandum to Freda Cortez and James Tobola.
Jgespectfullysubmitted, A-ti
. Jay'M. Gutierr z Counsel for NRC Staff Dated at Bethesda, Maryland this 14th day of August, 1981.
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> UNITED STATES OF AMERICA
.i NUCLEAR REGULATORY COMMISSION i
~
BEFORE THE AT0 HIC SAFETY-AND LICENSING BOARD
~ In the. Matter. of HOUSTON LIGHTING AND POWER COMPANY.).
50-499-(South Texas Project.- Units 1 & 2) )
CERTIFICATE OF SERVICE 4
- I hereby certify that copies of NRC STAFF RESPONSE TO CITIZENS CONCERNED ~
ABOUT N0 CLEAR POWER'S RESPONSE TO APPLICANTS'~ MOTION TU QUASH SUBPOENAS FOR MS. FREDA CORTEZ AND MR. JIM TOBOLA in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class' or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commissien's internal-mail system,. this 14th day of August,1981.
Charles Bechhoefer, Esq., Chairman
- Administrative Judge Brian Berwick, Esq.
Atomic Safety and Licensing Board Assistant Attorney' General Panel Environmental Protection Division U.S. Nuclear Regulatory Commission P.O. Box 12548, Capitol Station Washington, DC 205SS.
Austin, TX 78711 j
Dr. James C. !.amb III L
Administrative Judge Jack R. Newman, Esq.
313 Woodhaven Road Lowenstein, Newman, Reis,
- Chapel Hill, NC 27514 Axelrad & Toll 1025 Connecticut Avenue, N.W.
Mr. Ernest E. Hill Washington, DC 20036 Administrative Judge L
Lawrence Livermore Laboratory j
University of California Mrs. Peggy Buchorn 1
P.O. Box 808, L-123 Executive Director I.ivermore, CA 94550 Citizens for Equitable Utilities, Inc.
Melbert Schwarz, Jr., Esq.
Route 1, Box 1684 Baker and Botts Brazoria, TX 77442 i-One Shell Plaza i
Houston, TX 77002 Mr. Lanny Sinkin Citizens Concerned About William S. Jordan, III Esq.
Nuclear Power Harmon & Weiss 2207 D. Nueces 1725 I Street, N.W.
Austi n, TX ~
78705 Suite 506
- Washington, D.C.
20006
.s
Kim Eastman, Co-coordinator Atomic Safety and Licensing Board Barbara A. Miller Panel
- U.S. Nuclear Regulatory Commission Pat Coy Washington, DC 20555 Citizens Concerned About Huclear Power 5106 Casa Oro Atomic Safety and Licensing Appeal San Antonio, TX 78233 Board Panel
- U.S. Nuclear Regulatory Commission Docketing and Service Section*
Washington, DC 20555 Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 y
f Jgy/M' Guti z
Cbunsel for C Staff l.
.