ML20027D574

Response to Citizens for Sound Energy 821023 Motion for Reconsideration of ASLB Ruling Re Attachments to J Doyle Testimony.Motion Should Be Stricken or Alternatively,Denied. W/Certificate of Svc.Related Correspondence

ML20027D574
Person / Time
Site:	Comanche Peak
Issue date:	11/03/1982
From:	Horin W, Reynold N, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8211080084
Download: ML20027D574 (11)

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~ .- UNITED ST'ATES OF AMERICA a- . NUCL, EAR REGULATORY COMMISSION *gg SOV g -

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- , BEFORE THE ATOMIC SAFETY NND LICENSING BOARb5.,.

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. TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 and COMPANY, et al. ) 50-446 .

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.(Comanche ' Peak Steam Electric ) (Application for ,

, , Station Uni'ts 1 and 2)

, ) Operating Licenses)

.- APPLICANTS' RESPONSE TO CASE'S MOTION FOR RECONSIDERATION OF BOARD'S RULING REGARDING ATTACHMENTS TO TESTIMONY OF CASE' WITNESS JACK DOYLE Pursuant to 10 C.F.R. $2.730(c), Texas Utilities Generating C6, et al. (" Applicants"), hereby respond to CASE's October 23, 1982 " Motion for Reconsideration of Board',s Ruling Regarding Attachments To Deposition / Testimony of CASE Witness Jack Doyle." For the reason's set forth below, Applicants urge the Board to strike CASE's motion, or 1

in the alternative to deny the motion.

I. BACKGROUND l

l On September 13, 1982, CASE sought to introduce the deposition 1 of Mr. Jack Doyle as his prefiled testimony.

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1 Mr. Doyle had been deposed on August 19 and 20, 1982 by CASE and cross-examined by Applicants at that time. In prefiling the testimony of its other witnesses, CASE l

indicated it would submit Mr. Doyle's deposition, but also I requested a subpoena "to assure his presence September 13." See CASE's " Testimony of CASE Witnesses and Motion for Subpoena," dated September 2, 1982.

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However Mr. Doyle was present at the hearing, and the Board

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- indicated that in li~ght of Mr. Doyle's presence he would be expected to'present direct testimony at the hearing. Tr.

,3587-88. ' CASE 'indictated it had intended to use the

. deposition in ' lieu of prefiled testimony even though Mr.

. Doyle .was also present at the hearing.

Tr. 3588. J ,,

Applicants suggested that as a matter of efficiency Mr.

Doyle's deposition could be admitte.d as-direct examination and cross ~exa'mination, and that Applicants would waive further cross-examination. Tr. 3588-89:. . The NRC Staff also

, waived cross ' examination. Tr. 3592. Consequen'tly, the Board indicafed it*would permit Mr. Doyle's deposition to be admitted as his full testimony, both direct and cross-examination. Tr. 3592. Mr. Doyle was subsequently called as i .', '

a witness and made corrections to his testimony. Tr. 3622-3627. CASE then sought to introduce the attachments to Mr.

Doyle's deposition. Tr. 3627-28. The Soard stated that the attachments would be admitted as exhibits for " clarification only." Tr. 3628.

On September 14, 1982, CASE introduced supplemental testimony of Mr. Doyle, which had been distributed to the

! parties the previous day. Tr. 4705. Mr. Doyle was cross-examined and questioned by the Board on his supplemental testimony and the accompanying exhibits. Tr. 4714-4761. The questioning concerned, in part, the exhibits attached to Mr.

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.. Doyle's supplcmental testimony, Which were photographs of

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• s.f',...- models of particular* pipe supports, E.g., Tr. 4719. This quest oning ~ focused on the matters raised in Mr. Doyle's

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, supple ental testimony.

. Applicant's presented a panel of witnesses on September

.14-16, 1982',ihrebuttaltothetestimony'fMr.Doyle.

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D,uring cross ~ examination of Applicants.' witnesses by CASE, several questions were posed regarding ~ th'e exhibits attached th Mr. Doy'le',"s direct testimony. The. questioning dealt with th,e details of the pipe support designs'. ref,lected in those exhibits '. E.g., Tr. 4907, 4908, 4946-47, 4953, 4973 and 5008-16. On~ redirect examination of Applicants' witnesses, Applicants suggested that clean copies of the drawings attached to Mr. Doyle's testimony on Which hand-written notes were made be submitted for the record. Tr. :5190. The Board subsequently directed that those exhibits on Which Mr.

Doyle's notes appeared be deleted and c ean copies submitted.

Tr. 5190. CASE made no objection to this ruling. Tr. 5191.

On the last day of the hearings, CASE again raised the matter of the exhibits on Which Mr. Doyle had written notes.

Tr. 5776. CASE requested that it be permitted to submit, apparently for the record, a separate page setting forth the information in Mr. Doyle's notes. Tr. 5777. The Board-denied that request. Id. Applicants suggested, and the

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Board agreed, that Applicants shoulds provide Mrs. Ellkswith i

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yS?, - the clean . copies Whi~ch would be submitted and try to work out

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a stipulation with CASE.2 Tr. 5778. '

CASE' has now filed a motion for reconsideration of the-

. Board's rulings on the Doyle exhibits.

. II. APPLICANTS' ANSWER TO 3 MOTION FOR RECORSIDERATION ,

A., The Board Should Strike CASE's Motion CASE's motion for reconsideredion is simply another in a lo'ng series of supplements to motions and motio.ns for " x ,

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reconsideration requesting the Board to change its' previous rulings. CAS3 does not present new or significant '

tN, information that could alter. the Board's decision, but merely s

repe,a't's or reformulates arguments presented before. ',This -

practice unnecessarily burdens thei record, the parties and the Board and is Wholly contrary to. established rules of '

practice governing this proceeding. Indeed, the' Board has admonished CASE on other occasions to reft;ain from filing such repetitious pleadings. E.g., Tr. 5320; May 25, 1982 Telegram from Board. g .

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2 Applicants have compiled unannotated copies of these

' exhibits and intend to discuss the procedure for submittal of them into the record with CASE this week.

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Accordingly, Applicants urge the Board to strike CASE's Ti(., , s 4 motion.

In the alte"rnative, Applicants submit the Board

, should deny ' CASE's motion on the merits, for the reasons set

,forth below. -

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B. General

Mo,vanti-[ seeking reconsideration of d'ecisions rendered in

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.NRC adjudicat~ory proceedings bear a heavy burden. See Duke 5

Power Company (Catawba Nuclear Station, Units 1 and 2),

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ALAB-359, 4'NRC 619,620 (1976). A motion'for reconsideration must present .more than a mere rehearsaf ~of , arguments raised previously.' Kansas Gas and Electric Company (Wolf Creek Genera $ing Station, Unit No. 1), ALAB-477, 7 NRC 766, 767 (1978); Houston Lighting and Power Company (South Texas Project, Unit Nos. 1 and 2), ALAB-387, 5 NRC 638, 638 (1977).

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The motion must set forth sufficient informa~ tion and arguments not previously advanced to persuade the Board that its original decision was unwarranted. See Wolf Creek, ALAB-477, supra at 768, 770; South Texas, ALAB-387, supra at d 638; Maine Yankee Atomic Company (Maine Yankee Atomic Power

' s Station), ALAB-166, 6 AEC 1148, 1149 (1973).

As demonstrated below, CASE has failed to satisfy any of the requirements applicable to motions for reconsideration.

Accordingly, Applicants urge the Board to deny CASE's motion.

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C. CASE Must Overcome a

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Particularly Heavy Burden v&Ci o .- -

While CASE would need to overcome a heavy burden in

, making a motion for reconsideration, see Catawba, ALAB-359,

. supra,'it must overcome an even greater burden where, as

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. he r'e , i,t is: seeking reconsideration for a'second time.

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.the Board'ini'tially made its decision on the Doyle exhibits, CASE raised no objections.

Tr.-519.1. 'The following day, hhwever, CASE sought reconsideration of the-Board's decision, which the Board declined to alter. .Tr.: ~57 7,6-7 7. CASE'now .

seeks a third ~ bite at the apple, its second on reconsid-eration. Applicants submit that CASE has failed to present information that overcomes its particularly heavy burden of persu,asion.-

D. CASE's Arguments Are Without Merit CASE raises three arguments in support of its motion.

First, CASE contends that Applicants we5e u5 timely in raising the matter of Mr. Doyle's notations on the exhibits. Second, CASE suggests that Applicants wrongly implied that CASE had i mislead the Board as to the authenticity of the exhibits.

Finally, CASE contends that the notations on the drawings are

" vital" to Mr. Doyle's testimony and must be included in the 4 i record. Applicants demonstrate below that each of these I

arguments is without merit. i q . i i

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- 1. *he matter of Mr. Doyle's '

a r, . 'r.'tations was timely raised.

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CASE claims that Applicants' suggestion to provide clean

, copies of' the -Doyle exhibits was untimely, Motion at 1-4, in that the existence of the notat1<ms on Mr. Doyle's exhibits

.was'known to. Applicants when Mr. Doyle's ' deposition was taken ,

a,nd when the Board admitted the material-as CASE Exhibit 669'B.

Although not expressly stated, CASE apparently contends t' hat Applicants should have been'. precluded from suggesting When they did that clean. cop'ies ,of the exhibits be submitted. 1N) the contrary, Applicants raised'the question only after CASE had conducted detailed cross-examination of Applicants' witnesses with regard to those exhibits, e.g.,

Tr. 4907, 4908, 4946-7, 4953, 4973 and 5008-10. Until that time, .the exhibits were either not-in the record (at the time the deposition was taken) or were received for " clarification only",(Tr. 3628). Accordingly,-Applicasts'Isuggestion was timely made in view of the altered use to Which those exhibits were put.

2. CASE has wrongly accused Applicants of suggesting CASE mislead the Board.

CASE once again has resorted to attacking the character of another party in this proceeding, rather than addressing the merits of an issue. In this instance, CASE claims that "th'e manner in which Applicants' concern was expressed" (regarding the Doyle exhibits) implied that CASE had mislead

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the Board as to the authenticity of those exhibits. Motion at 4. To the contra'ry, Applicants.neither intended nor made

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such n' implication. ipplicants merely suggested that they -

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, arrange w'th i CASE to provide clean copies of the exh'ibits on

.which Mr. Doyl'e had made notes. The Board's ruling was

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entirely conskstent with the rules of evidence and its r,esponsibility for developing a sound record. CASE's accusation provides no basis for changing' the Board's original d'ecision. .

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3. CASE's claim that the hotations are vital is unsupported. "- ,

CA.SE states that the notations on Mr. Doyle's exhibits are a " vital portion" of his testimony. Motion at 6. At the time CASE first sought reconsideration they requested, as they.Jdd now, that if Mr. Doyle's notes contained any " vital" ,

information they be permitted to include a page indicating the changes made. Tr. 5776-77. Howeveg, nqither at that time nor in the instant motion has CASE presented even one example of such information. CASE's vague rehearsal of arguments raised previously affords no basis for reconsideration of the Board's ruling. See Wolf Creek, ALAB-477, supra; South Texas, ALAB-387, supra. Applicants submit that the combination of the information presented by Mr. Doyle on direct and cross-examination (over 400 record pages) and Mr. Doyle's handwritten notes preceeding each

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~ .- group of exhibits (to which' Applicants posed no objection)

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vj{., - adequately describe Mr. Doyle's concerns. CASE has failed to carry its burden of peisuasion on this matter.

. III. CONCLUSION

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For the. foregoing reasons, Applicants submit that CASE's motion for reconsideration should b.e striken.

In the alternativ'e, " Applicants urge the Board to . deny CASE's motion.

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'- . Respectfu y submitted,

. . - Nichol S Reynolds

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. William'A. Horin DEBEVOISE & LIBERMAN 1200 17th Street, N.W.

Washington, D.C. 20036 (202) 857-9817 Counsel for Applicants November 3, 1982 -

• l UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION U3NRC

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

,Q NOV -4 A9 Q

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• y{.,- In the Matter.of ) .

0FHG OF SWm

) Docket Nos. 50-445 and DOCXETING & SERVlCE TEXAS UTILITIES' GENERATING ) 50-446 BRANCH  !

COMPANY, ~et al.- )

) (Application for (Coma'nche, Peak Steam Electric' ) Operating Licenses)

Station, Units 1 and 2) )

CERTIFICATE OF SERVICE [

I hereby certify that copies of the foregoing " Applicants' Respon'se To C,ASE's Motion for Reconsideration of Board's Ruling Regarding Attachments To Testimony of CASE Witness Jack Doyle," in the above-captioned matter, were served 'upon'the following persons by deposit in the United States mail, firs't. class postage prepaid, this'3rd day of November 1982 or by hand-delivery ,(*) on November 4, 1982:

• Marshall E. Miller, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Board Panel Licensing Board U.S. Nuclear Regulatory U.S. Nuclear

• Regulatory~

Commission Commission Washington, D.C. 20555 Washington, D.C. 20555  :

Lucinda Minton, Esq.

Dr. Kenneth A. McCollom Atomic Safety & Licensing Dean, Division of Engineering Bo.ard. .

Architecture and Technology .U.S. Nucleaf Regulatory Oklahoma State University Commission Stillwater, Oklahoma 74074 Washington, D.C. 20555

• Dr. Richard Cole, Member Marjorie Ulman Rothschild, Esq.

Atomic Safety and Licensing Office of the Executive l

Board Legal Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory commission Commission Washington, D.C. 20555 Washington,'D.C. 20555 Chairman, Atcmic Safety and -

l Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 I

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-Y , . David J. Preister, Esq' Mr. Scott W. Stucky

• r~r- Assistant Attorney Gene ~ral . Docketing & Service Branch

'" Environmental Protection -

U.S. Nuclear Regulatory Division" Commission P'.O. Box 8125.48 Washington, D.C. 20555 Capitol Station Austin, Texas 787.11 Mrs. Juanita Ellis President, CASE

. 1426 South Polk Street '

. Dall'as, Texas 75224 --

A .

William A.' Horin cc:' Homer C.' Schmidt  :

Spencer C. Relyea, Esq.

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