ML20033B882
| ML20033B882 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/30/1981 |
| From: | Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20033B879 | List: |
| References | |
| NUDOCS 8112020389 | |
| Download: ML20033B882 (6) | |
Text
s 11/30/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
TEXAS UTILITIES GENERATING COMPANY, )
Docket Nos. 50-445 E AL.
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50-446 (Comanche Peak Steam Electric Station, Units 1 and 2)
)
NRC STAFF'S RESPONSE TO CASE'S MOTION FOR ISSUANCE OF SUBF0ENAS On November 18, 1981, Intervenor Citizens Association for Sound Energy (CASE) filed " CASE's Motion for Issuance of Subpoenas" (" Motion")
in which it requested that subpoenas be served upon nine individuals, compelling them to appear as the Licensing Board's witnesses and at the expense of the Commission.
For the reasons set forth below, the NRC Staff (" Staff") opposes CASE's Motion and recommends that it be denied.
10 C.F.R. 5 2.720(a) provides that subpoenas requiring the attendance and testimony of witnesses may, upon a showing of relevance, be issued on application of a party, as follows:
The 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 shall not attempt to determine the admissibility of evidence.
10 C.F.R. 9 2.720(d) further provides that " witnesses summoned by subpoena shall be paid, by the party at whose instance they appear, the fees and mileage paid to witnesses in the district courts of the United States."
Only in unusual circumstances are the expenses of a witness who testifies 8112O20389 E11130 PDR ADOCK 05000445-
.G_
_2 under subpoena not paid by a party -- where the Licensing Board, itself, decides to subpoena the witness as a Board witness, upon finding a " genuine
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need" for the person's testimony. Consumers Power Co. (Midland Plant.
Units 1 and 2), ALAB-382, 5 NRC 603, 607 (1977). Where a witness would have been sponsored by a party but for financial considerations, "the Board's authority in this respect should be exercised with circumspection,"
in order to avoid providir) " indirect financial support to an intervenor" in violation of the Commission's regulations (Id., at 608).E The Staff believes that CASE has not demonstrated that there is any need for the witnesses for whom subpoenas have been requested.2./ One of those persons, Erle A. Nye (Chief Finaacial Officer and Executive Vice President of Texas Utilities Generating Company) has, in fact, been listed by the Applicants as a witness in the upcoming hearing.E ccordingly, A
it is readily apparent that no subpoena is required to compel the testimony of Mr. Nye.
In addition, the Staff believes that subpoenas for the other persons identified by CASE similarly are unnecessary. Mr. Nye is to be joined on the witness stand by Mr. H. Dan Farrell, Controller of Texas Utilities Services,Inc.4/ A reading of the Applicants' Trial Brief demonstrates 1/
See generally, " Domestic Licensing Proceedings; Procedural Assistance Program," 46 Fed. Reg. 13681 (February 24, 1981) (suspending Commission regulations providing procedural assistance to non-applicant parties in licensing proceedings following receipt of GA0 opinion).
y Indeed, CASE has not even attempted to discuss the need for these witnesses to be subpoenaed.
3_/
See " Applicants' Trial Brief On Contentions 9, 25 and Board Question 2" (" Applicants' Trial Brief"), dated November 24,1981, at 12.
4_/
Id. at 12-13.
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. that these individuals should be able to respond adequately to any ques-tions which the parties and Licensing Board may have as to the Applicants'
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financial qualifications.
In these circumstances, there is no need whatsoever to compel the testimony of other employees of the Applicants, as the Licensing Board's witnesses and at the expense of the Commission.
Further, as set forth in the Staff's response to CASE's motion to allow testimony to be admitted on affidavit,E the evidence sought to be elicited from these individuals essentially relates to portions of testi-mony given in rate-setting hearings held before the Public Utilities Commission (PUC) of Texas. That testimony is neither relevant nor material in this proceeding, nor does it have any bearing on the issue of Applicants' financial qualifications to operate the Comanche Peak facility. The adequacy of the Applicants' financial qualifications are best evaluated by an examination of their annual reports, financial summaries, and historical ability to recover operating costs through the sale of electricity to their customers, and by the likelihood of their obtaining future rate increases sufficient to cover the operating costs of the Comanche Peak facility. Those documents have been reviewed by the Staff and will be a proper subject for cross-examination in this proceeding. There is no " genuine need" to compel further witnesses to appear on the Licensing Board's behalf when those reports and financial results are available and when the Applicants have already indicated that they are making available two of their financial officers to appear as witnesses in this proceeding.
5j "NRC Staff's Response to CASE's Motion to Allow Testimony to be Admitted on Affidavit Only," dated November 30,1981, at
., CONCLUSION For the reasons set forth above, the Staff opposes CASE's Motion and recommends' that it be denied.
Respectfully submitted, sh T d Sherkin E. Turk Counsel for NRC Staff Dated at Bethesda, Maryland this 30th day of November, 1981.
i l
1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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TEXAS UTILIT1ES GENERATING COMPANY, ET AL. )
Docket Nos. 50-445
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50-446 (Comanche Peak Steam Electric Station,
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Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF'S RESPONSE TO CASE'S MOTION TO ALLOW TESTIMONY TO BE ADMITTED ON AFFIDAVIT ONLY and NRC STAFF'S RESPONSE TO CASE'S M0 TION FOR ISSUANCE OF SUBPOENAS 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 Commission's internal mail system, this 30th day of November, 1981.
Marshall E. Miller, Esq., Chairman
- Mrs. Juanita Ellis Administrative Judge President, CASE Atomic Safety and Licensing Board 1426 South Polk Street U.S. Nuclear Regulatory Commission Dallas, TX 75224 Washington, DC 20555 David J. Preister, Esq.
Dr. Kenneth A. McCollom Assistant Attorney General Administrative Judge Environmental Protection Division Dean, Division of Engineering, P. O. Box 12548, Capital Station Architecture and Technology Austin, TX 78711 i
Oklahoma State University Stillwater, OK 74074 Mr. Richard Fouke 1668-B Carter Drive Dr. Richard Cole, Administrative Judge
- Arlington, TX 76010 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Nicholas S. Reynolds, Esq.
Washington, DC 20555 Debevoise & Liberman 1200 17th Street, N.W.
J. Marshall Gilmore, Esq.
Washington, DC 20036 1060 W. Pipe ~ine Road Hurst, TX 76053
2-Atomic Safety and Licensing Board Docketing and Service Section (1)*
Panel
- Office of the Secretary U.S. Nucipar Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Appeal Panel (5)*
U.S. Nuclear Regulatory Comission Washington, DC 20555 m
Sherwin E. Turk Counsel for NRC Staff i.
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