ML20080G477

Response Opposing Citizens Concerned About Nuclear Power 830909 Motion to Participate in State of Tx Deposition of J Goldberg.Discovery Period Expired.Certificate of Svc Encl

ML20080G477
Person / Time
Site:	South Texas
Issue date:	09/15/1983
From:	Gutterman A HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8309200291
Download: ML20080G477 (11)

Text

00CMETED 4 USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 'O bE l9 b! 1 BEFORE THE ATOMIC SAFETY AND 0 LICENSING 8QAR 00CHLT!t4G & SEW:Cf.

DRANCH In the Matter of )

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HOUSTON LIGHTING & POWER )

COMPANY,~~ET AL. Docket Nos. 50-498 OL

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50-499 OL l (South Texas Project, Units 1 )

i and 2) )

APPLICANT 3' RESPONSE TO CCANP MOTION TO PARTICIPATE IN STATE OF TEXAS DEPOSITION OF JEROME GOLDBERG -

I. Introduction By motion dated September 9, 1983,*/ Citizens Ccncerned About Nuclear Power (CCANP) has requested that the Atomic Safety und Licensing Board (Board) authorize it to participate

! in the deposition of Mr. Jerome H. Goldberg scheduled for l September 27, 1983.**/ ,

Applicants oppose the Motion on the grounds that CCANP's participation in the deposition is inconsistent with prior orders of this Board, and is neither

! mandated by applicable authority nor warranted under the circumstances.

Accordingly, CCANP's Motion should be denied.

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! CCANP Motion to Participate in State of Texas Deposition of Jerome Goldberg (September 9, 1983) (Motion).

' ~~/ The deposition was noticed by the Attorney General for l the State of Texas on August 22, 1983. State of Texas' Notice 1983). for Oral Deposition of Mr. Jerry Goldberg l

dateH.

Alvin set for the deposition on September 7,All parties 1983. Letter, w

1983). Gutterman, Esq. to Brian Berwick, Esq. (September 7, I

8309200291 830915

! PDR ADOCK 05000490 i

O PM 96

. II. Argument The original discovery period established by the Board for Phase II of the South Texas Project operating license proceeding expired on April 22, 1983.

By motion dated April 21, 1983, however, the Attorney General requested an extension of time to engage in discovery based upon " unique circumstances" not applicable to the other parties to this proceeding.*/

Recognizing the unusual circumstances surrounding the Attorney General's motion, Applicants did not object to the requested extension.

Their lack of objection was based, in part, on the fact that extension of discovery appeared justified only for the Attorney General and that "none of the factors set forth by the Attorney General serve to justify an extension of the original deadline for any other party to this proceeding, and no such extension would be warranted." **/ ,,

In granting the Attorney General's motion, the Board recognized that the circumstances warranting the requested relief applied only to the Attorney General.***/ Thus, the Board extended the time in which the Attorney General was authorized to engage in discovery while maintaining the original discovery dead 3ine for the other parties.

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Attorney General.of Texas' Motion for Extension of Discovery Deadline (April 21,1983) at 3.

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Applicants' Response to Attorney General of Texas' Motion 1983), atfor 1-2.

Extension of Discovery Deadline (May 3,

• • • / Memorandum and Order (May 18,1983) at 2.

Purcunnt to the Board's prior discovery orders, CCANP is not entitled to engage in any further discovery in Phase II of this proceeding. The Board provided CCANP ample opportunity for discovery - a three month pericd - but CCANP chose not to avail itself of that opportunity. Now, after its discovery period has expired, CCANP seeks to examine Mr. Goldberg.

Applicants have already indicated that Mr. Goldberg will be called by them as a witness in the Phase II proceeding.*/ ,

CCANP will have the opportunity to cross-exanine Mr. Goldberg at the hearing. Any examination CCANP may seek, in addition to the cross-examination to be permitted at the hearing, constitutes discovery by CCANP, and has no possible legitimate purpose other than discovery.

Furthermore, CCANP will not be prejudiced if the Board permits the State of Texas to take this deposition, while deferring CCANP's opportunity to cross-examine Mr. Goldberg until he is called as a witness. In NLRB v. Interboro Contractors, Inc., 432 F.2d 854, 860 (2d Cir. 1970), cert.

denied, 402 U.S. 915 (1971), the court held that the agency's refusal to permit the respondent to take the depositions of two discha,rged employees did not prejudice the respondent because counsel had " ample opportunity to cross-examine the I

[ employees] at the hearing about the matters on which he i

. wanted to depose them." Thus, the courts have recognized Applicants' Answers and Objections to State of Texas' l

First Set of Interrogatories to Applicants on Quadrex at 51 (August 26, 1983).

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l that "no prejudice [isi suffered . .

. where those from whom s

depositions [are) sought appeared as witnesses at the hearing and were thus made available to cross-examination by the party seeking discovery."*/ Id.; NLRB v. Safway Steel Scaffolds Co.,

383 F.2d 273, 277 (5th Cir. 1967), cert. denied, 390 U.S. 955 (1968);

Northern Indiana Public Service Co.

(Bailly Generating Station, Nuclear 1), ALAB-303, 2 NRC 858 ,

869 (1975).

In these circumstances, permitting CCANP to question Mr. Goldberg in the deposition would be an unwarranted imposi-tion on the time of a busy executive whose attention to the South Texas Project is important to its success.**/ ,

The deposition of Mr. Goldberg has been scheduled by mutual agreement of the State of Texas and Applicants for the afternoon of September 27.

The date was based on Mr. Goldberg's

~/ In NLRB 996 (5th v. Miami Cir. Coca-Cola Bottling Co., 403 F 2d 994, 1968), .

decision was based, denying in part, the right to depose a witness whichthe court up individual "would be presented as a witness at theupon the agency's f hearing." (Emphasis added).

~~/

CCANP argues authority, erroneously, and without citation to legal that to deny it the right to cross-examine Mr. Goldberg process. at the Motion deposition would be to deny it due at 1.

incorrect, but in fact, Not only is CCANP's position its due process rights do not even require that it be granted any discovery right.s let alone this the ample discovery opportunity accorded to it in proceeding.

judicial and quasi-judicial proceedingsIt is well settled that parties to trative hearings) have no due process right to pre-trial (such as adminis-discovery.

Bailly, 2 NKC at 869; P.S.C. Resources, Inc.

Manor v. NL!tB, F.2d 380, 386 (1st Cir. 1976); D'Youville

v. NLRB, 576 4

Ynterboro Contractors, 526 F.2d 3, 7 (1st Cir. 1975); NLRB v.

Commissioner, 226 F.2d 721, 722Inc., 432 F.2d at 857-58; Starr v.

denied, 350 U.S. 993 (1956 . (7th Cir. 1955), cert.

process period hasright to discovery)after an ample discoveryCertalnly expired. it i

personal schedule.

The State of Texas has assured Applicants that the deposition can be completed in that one afternoon.

. Applicants' agreed'to schedule this deposition for a date more than one month after the close of the discovery period for the State of Texas, because this delay in schedule would permit the' State sufficient time to sharpen its focus of inquiry and thus reduce the imposition on Mr. Goldberg's time. The State, however, did agree that any deposition of Mr. Goldberg should

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be completed by the end of September (see Exhibit 1, attached

' hereto). That limitation was requested by Applicants to confine the potential imposition on Mr. Goldberg's time of the deposition and the preparation for it. We are concerned that if CCANP participates in this deposition it will not be ~

sharply focused and might not be completed during the agreed upon time.,*/

Finally, it is beyond question that the Board was acting I

within its authority when it decided to limit discovery and to tailor discovery procedures to the circumstances of this particular case. 10 CFR SS 2.740, 2.718; Bailly, 2 NRC at

• /

The Board has in the past been forced to terminate unduly long and unproductive cross-examination by the representa-tive of CCANP. Tr. 6818-20. -The danger of such abuse is especially great where no hearing officer will be present to rule on objections and keep the examination within reasonable bounds. Even if CCANP were permitted to cross-examine only within the scope of the direct examination of extended, of the State unfocused of Texas there would still be a likelihood examination. Moreover, enforcing such a limit in the absence of a hearing officer would be difficult at best and would be likely to lead to conflicts which could be avoided by deferring such examination until Mr. Goldberg's testimony at the hearing. '

,o 870. For CCANP to establish that the Board's ruling limiting discovery constitutes an impermissable " curtail-ment of discovery procedures, [it] must demonstrate that the action made it impossible to obtain crucial evidence, and implicit in such showing is proof that more diligent discovery was impossible." Bailly, 2 NRC at 869; Eli Lilly and Co. v. Generix Drug Sales, Inc. 460 F.2d 1096, 1105 (5th Cir. 1972).

CCANP cannot reasonably assert that prohibiting it from participating in Mr. Goldberg's deposition will make it impossible to obtain crucial evidence, given its opportunity to cross-examine Mr. Goldberg at the hearings. Furthermore, since CCANP failed to submit a single discovery request in the time allotted to it, it can hardly argue that more diligent discovery was impossible.

III. Conclusion CCANP should not be permitted to actively participate in Mr. Goldberg's deposition. CCANP's opportunity for discovery has now expired and there is no reason to extend its discovery rights. Applicants believe that any active participation on CCANP's part will impose upon the limited time of an important corporate executive and is entirely unwarranted.

Nothing in CCANP's Motion justifies such relief. Denial of

the Motion is entirely consistent with due process, and will not pre'udice j CCANP's legitimate rights as a party to this proceeding. For the reasons set forth above, CCANP's Motion should be denied.

Respectfully submitted, hJack NkW R. Newman Maurice Axelrad Alvin H. Gutterman Donald J. Silverman 1025 Connecticut Avenue, NW Washington, D.C. 20036 Finis E. Cowan 3000 One Shell Plaza Houston, Texas 77002 Dated: September 15, 1983 LOWENSTEIN, NEWMAN, REIS ATTORNEYS FOR HOUSTON LIGHTING

& AXELRAD, P.C. & POWER COMPANY, Project 1025 Connecticut Avenue, NW Manager of the South Texas Washington, D.C. 20036 Project acting herein on be-half of itself and the other L BAKER & BOTTS Applicants, THE CITY OF SAN i 3000 Shell Plaza ANTONIO, TEXAS, acting by and i

Houston, Texas 77002 through the City Public Service Board of the City of San Antonio, CENTRAL POWER AND LIGHT COMPANY, and CITY OF

j. AUSTIN, TEXAS l

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.; 7 The Attorney General of Texas August 8, 1983

• JIM MATTOX Attorney General sup eme cut smi$ng Mr. Tom Hudson e

= o sei $2548 austin. Tx 787 1 2548 Graves, Dougherty, Hearon & Moody g p, o, nox 9 g .

m gop-y,'#5Ifg'741367

,,n Telecocier 512<475 0266 n, Texas WM k Up Re: .

STNP Licensing Proceeding f . # [.'

'607 Main st . suite 1400 canas Tu 7520tJ709

Dear Tom:

2:4 742 8944

\pe-At the conference you and I attended with Mr.

482: Aioe ia ..r . suite 160 Jack Newman and Mr. Alvin Gutterman on Friday, August ElPas; TA 79935 2793 5, 1983, came up. the subject of Texas's discovery deadline

5'5333'8' At various times acroSS the past few weeks I have mentioned to you that I might insist on tak-s220 0anas Ave . rmte 202 ing the deposition Lighting & Power. of Mr. Jerry Goldberg of Houston Houston fx 77002 6986 You agreed tha t I have the right 713'650 0066 to depose Mr. Goldberg, but we also agreed that it would and onbe worthwhile possible for us to work on other discovery stipulations.

sos ereauay. suite st2 As an aspect of the Ludeock Tx 7940s 3479 voluntary discovery HL&P has been providing me, we agreed that Mr.

so6/747 5Me Gutterman will meet me in Houston this week and will guide Ine through HL&P's design procedures and documentation (with the help of

,3,, , y g,, knowledgeable company people) so that I can see for ucAnen Tx 7a50ia6es myself what stage various designs were at when reviewed 512rss2 4547 by the Quadrex Corporation in winter 1981.

too ua n paara swoe doo Toward the end of the Friday meeting I mentioned san "' ' that I felt compelled to file a protective notice

,,r225 ,

for Mr. Goldberg's deposition. I reasoned that it will take me some days or even weeks to receive and evaluate An Equai ceporton.t> the other discovery you are providing, and only after Aqamat. e Aci.cn Ernotoyer that task is complete will I know whether or not I can do without the deposition. By that time a notice would be untimely.

suggested I not fileYou and Mssrs. notice.

a protective Newman and Gutterman We all agreed EXHIBIT I

u* g () , s4

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Mr. Tom Hudson

• August 8, 1983 Page 2 4

thatitwe get donewillbywork together August on other discovery and will try to 22 (the end of Texas's discovery period).

We further agreed that a notice filed by me on er before August 22 would be regarded as timely even though it would specify an actual deposition day some time after August 22. If, after all the dust has settled, 1 wind up filing a notice, we agreed that we will work together to select a convenient date, perferably getting the deposition done by the end of September 1983.

Please let me know immediately if this letter is at odds with your understanding of our Friday agreement.

I look forward to working with you on pending document discovery, and I look forward to hearing from Mr. Gutterman.

Sincerely,

.vh,_

Brian E. Berwick Assistant Attorney General Environmental Protection Division P. O. Box 12548 Austin, Texas 78711 (512) ,475-4143 BEB:dwr "

cc: Mr. Alvin Gutterman y _ -.~ .. ; .. . , _

e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOAR In the Matter of )

)

HOUSTON LIGHTING & POWER )

COMPANY,~ET AL. Docket Nos. 50-498 OL

~ ~ )

) 50-499 OL (South Texas Project, Units 1 )

And 2) .

)  !

CERTIFICATE OF SERVICE _

I hereby certify that copies of " Applicants' Response to CCANP Motion to Participate in State of Texas Depositi Jerome Goldberg" have been served on the followingon of individ uals and entities postage by deposit prepaid, in the United or by personal serviceStates mail, first class ,

on this 15th day of September, 1983. (as indicated by asterisk) '

• Charles Bechhoefer, Esq.

Chairman, Administrative Judge Brian Berwick, Esq.

Atomic Safety and Licensing Assistant Attorney General Board Panel for the State of Texas U.

S. Nuclear Regulatory Commission Washington, D.C. Environmental Protection 20555 Division P.O. Box 12548, Capitol Station Dr. James C. Lamb, III Austin, TX 78711 Administrative Judge 313 Woodhaven Road Chapel Hill, NC 27514 William S. Jordan, III, Esq.

Harmon & Weiss 1725 I Street, N.W.

Ernest E. Hill Washington, D.C. 20006 Administrative Judge Lawrence Livermore Laboratory Kim Eastman, Co-coordinator University of California Barbara A. Miller P.O. Box 808, L-46 Pat Coy Livermore, CA 94550 Citizens Concerned About Nuclear Power Mrs. Peggy Buchorn 5106 Casa Oro Executive Director San Antonio, TX 78233 Citizens for Equitable Utilities, Inc. Lanny Sinkin Route 1, Box 1684 2207-D Nueces Brazoria, TX 77422 Austin, TX 78705 m g --s w ~,r- -we r r ~w n ,

. Robert G. Perlis, Esq.

Office of the Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Gafety and Licensing Appeal Boald U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Office of:the Secretary U. S. Nuclear Regulatory Commission Warhington, D.C. 20555 f'l/W i

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