ML20106D448
| ML20106D448 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 10/23/1984 |
| From: | Gallo J, Thornton P ISHAM, LINCOLN & BEALE, OLIVER B. CANNON & SON, INC. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#484-702 OL-2, OLA-2, NUDOCS 8410250157 | |
| Download: ML20106D448 (8) | |
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MUCLEAR REGULATORY COPJIISSION N - OC[ g 7 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD y
In the Matter of
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TEXAS UTILITIES ~ ELECTRIC
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Docket Nos. 50-445--2 COMPANY, _e t _a l.
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50-446-2 s
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(Comanche Peak Steam Electric
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(Application'for p
Station, Units 1.and 2)
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Operating Licenses)
.c MOTION TO STRIKE si tf J. t 5[/ I Oliver B. Cannon & Son, Inc.,
(" Cannon") and
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John J. Norris through their attorneys, Isham, Lincoln &
Beale, move the Atomic Safety and Licensing Board (the x
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" Board") to strike the testimony of John J. Norris appearing on pages 18670 through 18903 and pages 19034 through 19139 of the hearing transcript.
The totality of the circumstances surrounding this testimony, as reflected in the transcript I pages in question, reveals a basic lack of procedural fairness that has prejudiced Cannon and Mr. Norris and that can best se be remedied by striking these transcript pages.
We believe s[N that this unfair prejudice and the confusion apparent in much of the record in question outweigh the probative value of the d
testimony and bring thia Motion within the principle of Rule 403 of the Federal Rules of Evidence.
Mr. Norris was called to the stand as a Board witness t.,
and subjected to extremely lengthy, detailed and vigorous examination by the Board and counsel for Intervenors.
On the
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second day of his testimony, the Board Chairman voiced the v
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- ob'servationithat he wasidisturbed by what? appeared to him t be N
linconsistencies-in:Mr.?Norris') testimony (Tr. 19118, --1913 3) ;.:,
This'ledito the Board permitting-Mr. Norris-to' retain. counsel
.before: proceeding'with further; examination.
The Chairman' offered.Mr.:Norris,the1opportunityIto-go over theTtranscript;
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. ith.his counselL and correct-iti(Tr. 191'18)'.
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the' transcript,.we believe that :the remedy of strikingf the portions in question:would be'more appropriate.
Examination ' of ' the' record - by._ Mr. Norris.L and - his.
counsel has-left1them uncertain whether his; testimony does in
" fact'contain' inconsistencies.
What is readily apparent 1through-L
.out the. record is a great deal of confusion on the part;of both the' questioners and the witness.
This confusion renders the:
s testimony of little probative 1value and was-clearly caused.by
-the procedural circumstances surrounding the witness' questioning.
It was due in the first instance to a lack of.
. preparation.
Mr. Morris was called as-a Board witness.
He was not represented by counsel and had not consulted counsel'in
. preparation for his appearance in the Learing room (Tr. '18672).
He.did not know what he would ba T.
itioned'about and above all he did not understand the det3-ie9 ture of the questioning-to:
which he would be subjected-(Tr. 19190-91).
He had not brought with him the numerous documents that would have been necessary-to refresh his memory.on the long and complicated sequence of meetings and conversations that he was questioned about, and he
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had not reviewed those documents before testifying-(Tr.
18675-76, 18780, 18873, 19053).
Mr. Norris had not even-t ik-e
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- attemptedito ' reviewfand clarify;in his c niind 1thef sequence of
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eventsLabo6t'which;h'e wasEques'tioned, wh'ich;wouldihave been' 3
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necessary'at a'minimumffor..him tolhave-given? complete-and-c 3
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Laccurate ' answers..
u Furthermore.,JtheseJproblems were-exacerbated byithe~
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- nature. and ~ manner of f the7 1engthy and vigorous questioningcto which Mr. Norris'was subjected, particularly-by.the1 Board.. The.
Board:was-understandably lunder the samensort of handicap that-Mr. Norris 'was ~ with. respect 1to.the availability: of documents.
- necessary to understand.: the sequence. of events finL which'they-.
were interest'ed.. Mr. Norri's repeatedly pointed out L.that :th'e
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facts about_which,he'was being questioned.could onlytbe 1 ascertained af ter an : examination ' of a sheaf of documents not-present in the hearing room (Tr.~18675-76, 13780,)18873f,
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19053).
The examination nonetheless continued, attempting : to -
reach conjectures on the basis of the inadequate' documents at hand (see Tr. 18781-82).
The result was a wandering, repetitive examination that skipped back and forth between different points, often ill-defined, in a long and complicated ~
sequence of telephone calls, memoranda, letters and meetings.
The examination frequently came back to-the same point-from a
-different angle.
-In sum, this type of examination is quife-likely-to confuse the witness and betray him into what may' be perceived as. inconsistent statements.
The question here is certainly not the Board's-discretion to call and examine on its own authority a witness Ithat it-believes necessary.to enlighten it on a material-
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.s matter.;l.The" question 7is'the reasonabl'e:exerciselof tha't fdiscretion.
Cf..SouthlCarolina Electric ~and--Gas Co.
7
[(~VirgI.11 C.ESummer 'NuclSar [St ation, L Unit 1),c ALAB-66 3, 14 NRCJ1140,fil52 f(1981).. "We5believe.thatE in th'is circum -
1 stance the Board)should-havestaken on.itself<theirole of' ulook'ing, after-its ' witness..
Thefexaminationof MA. Norris.
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.should1 have beengterminated' and he :should-have been t encouraged'to-retain' counsel at'an'earlyLtimeson1the first day wh'en the Boardfdetermined it would'be necessary.to treat:
c him as a hostile witness.
The' result'of this process is that Mr.-Norris.
made a. considerable ~ ef fort, to. be cooperative and. to testify.
fully and. accurately on natters within his. knowledge and for his pains his reputation is today;unQer a cloud in the eyes of the Board. 'We-believe that it would'be both difficult' and-essentially unproductive to attemptfto go'back^through'
'the transcript page by page and attempt to clarify the record.
'It is really not clear whether the record contains incon-sistencies.
It is certainly clear-that the record reflects a great deal of confusion on the part of all concerned.
The unfair prejudice to Cannon and Mr. Norris, couple'd with-the confusion-which1is likely to make the record misleading as a guide to the trier of fact, surely outweighs the. probative.
value of the testimony elicited..For that reason we submit
.that it-would be' appropriate to exclude the testimony under; I
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' Rule 403 of the Federal Rules of Evidence. -1/
Mr. Norris will be available for exanination again.
Both he and the Board will have the advantage of being able to refer to the relevant documents.
In these circumstances, a full and accurate record can be compiled, and wh submit that the interests of justice will_best be served if that record is started afresh.
~1/
Rule 403 states:
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or nisleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
A trial court has broad discretion in balancing these elements.
Liew v. Official Receiver and Liquidator, 685 F.
2d 1192, 1195 (9th Circuit, 1982).
Although the Federal Rules of Evidence are not directly applicable to Commission proceedings, the-adjudicatory boards often look to.
them for guidance.
Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 365n. (1983).
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For.the' reasons stated,J.this Motion.should be~
z granted.
-Respectfullyfsubmitted,-
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/ Jose'ph Gallo
- Peter'Thornton l Counsel ~to Oliver'B. Cannon.
&.-Son, Inc.
'ISHAM, LINCOLNi& BEALE 1120-Connecticut Avenue, N.W.
Suite 840
.- Wa shin gton,
D.C.
20036 (202) 833-9730 and ISHAM, LINCOLN & BEALE Three First National Plaza Chicago,. Illinois 60602 (312) 558-7500
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-Dated:
October 22, 1984 i.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'84 00T 24 P2:29 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD GrF 2 3 a.$..
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In the Matter of
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-TEXAS UTILITIES ELECTRIC
)
Docket Nos. 50-445-2 COMPANY, et _al.
)
50-446-2 (Comanche Peak ~ Steam Electric )
(Application for Station, Units 1 and 2)
)
Operating Licenses)
CERTIFICATE OF SERVICE I hereby certify that copies of the " Motion to Strike" and Notices of Appearance of Joseph Gallo and Peter Thornton in the above-captioned natter were served upon the following persons by hand-delivery
- or by deposit in the United States mail, first class, postage prepaid, this 23rd day of October, 1984:
- Peter B. Bloch, Esq.
Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Panel Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Mr. William L. Clements Dr. Walter H. Jordan Docketing & Services Branch 881 West Outer Drive U.S.
Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission Washington, C.
20555
- Herbert Grossman, Esq.
U.S.
Nuclear Regulatory
- Stuart A.
Treby, Esq.
Commission Office of the Executive Washington, D.C.
20555 Legal Director U.S.
Nuclear Regulatory Mr. John Collins Commission Regional Administrator Washington, D.C.
20555 s
Region IV U.S.
Nuclear Regulatory Chairman, Atomic Safety and Commission Licensing Board Panel 611 Ryan Plaza Drive U.S. Nuclear Regulatory Suite 1000 Commission Arlington, Texas 76011 Washington, D.C.
20555 w
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5 Renea Hicks, Esq.
- Anthony Z. Roisman, Esq.
Assistant Attorney General Executive Director Environmental Protection Trial Lawyers for Public Justice Division
-2000 P Street, N.W.
P.O. Box'12548
- Suite 600 Capitol Station Washington, D.C.
- Ellen Ginsberg, Esq.
Lanny A.
Sinkin-Atomic Safety and Licensing
-114 W.
7th Street Board Panel Suite 220 U.S. Nuclear Regulatory Austin, Texas 78701 Commission Washington, D.C. 20555 0w / Joseph Gallo 4
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