ML20128H123

Motion for Sequestration of Listed Witnesses on Issues Re Credibility of Phase 1 Testimony.Certificate of Svc Encl

ML20128H123
Person / Time
Site:	South Texas
Issue date:	07/05/1985
From:	Sinkin L Citizens Concerned About Nuclear Power, INC.
To:	Atomic Safety and Licensing Board Panel
References
CON-#385-694 OL, NUDOCS 8507090416
Download: ML20128H123 (6)

Text

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gy g UNITED STATES OF AMERICA 7/5/85 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD MC E ED USNRC In the Matter of (

)

. HOUSTON LIGHTING AND ( '85 19. -8 P12 :22 POWER COMPANY, ET AL. ) Docket Nos. 50-498 OL

_(South Texas Project, ( 50-499 OL Units 1 and 2) ) GFFIC: or UCRt.iAb Y gggg g SERVICI: '

', BRM;CH CCANP MOTION TO SEQUESTER WITNESSES At the prehearing conference held April 30 - May 1, 1985, CCANP placed the Board and the parties on notice of its intention t o request sequestration of witnesses "on the issues dealing with the credibility of Phase I testimony" and the notification to the NRC of the Quadrex Report findings. Tr. 11236. The ASLB

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instructed CCANP to file a written motion af ter CCANP received the prefiled testimony on June 26, 1985. Sixth Prehearing Conference Order (Further Definition of Phase II Issues) dated May 17, 1985 at 13. CCANP herein moves the Board to grant CCANP's request for sequestration of the following witnesses:

Mr. Jerome Goldberg._

Dr. James R. Sumpter Mr. Loren Stanley Mr. George Oprea, Jr.

Mr. Richard Frazar Mr. Cloin Robertson .

Mr. M. E. Powell Mr. Jesse Poston Mr. Jack Newman Mr. Maurice Axelrad Mr. Alvin Gutterman DR D 1 33o3

'* ., ^

i Baker.and Botts attorneys as yet to be_ identified.

.There is an unusual problem raised by this motion in that the Board has af forded the Applicants an opportunity to move to 4: quash subpoenas for Mssrs. Robertson, Powell, Poston, Newman, Axelrad, Gutterman, and the Baker and Botts attorneys in oral

' argument during the proceeding., The argument on whether to quash, j however, will not take place under the current schedule until the

$ hearings have progressed at least through the first three days in Bay City. Obviously, for CCANP, this schedule is not adequate to achieve the purposes of sequestration. CCANP seeks either a decision on the first day of hearings regarding the calling of

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and sequestration of the witnesses sought by CCANP (as opposed to '

produced by the Applicants) or an agreement from the Applicants that Mssrs. Robertson, Powell, and Poston will be instructed to observe the rules of sequestration once the hearing begins at least until the time it is determined that they will indeed be called as witnesses with all the attendant authority given to the Board to take appropriate actions should these witnesses not follow said rules.

As to the sequestration itself, CCANP notes that none of the 4

witnesses for whom sequestration is sought are being called to I'

testify as part of a panel, so there is no question before the

j. . Board as to.the appropriateness of hearing said witnesses in

' panels or individually. See Sixth Prehearing Conference Order at i

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13.

The essence of CCANP's contention regarding the handling of the Quadrex Report is that there was a conspiracy to mislead the

.NRC about the seriousness of the findings in that report and a

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s withhold the report itself. From this perspective, the witnesses 66 identified in this motion are all alleged co-conspirators, employe'd by the corporation engaged in the alleged conspiracy, or employed by a partner in the project with an' interest in minimizing any actions by the ASLB that would adversely impact

'the project. CCANP is entitled to the presumption that there might have been a conspiracy and is, therefore, entitled to question these witnesses under circumstances which minimize the possibility of continuing the conspiracy through efforts to harmonize individual testimony. The appropriate mechanism for establishing such circumstances is sequestration.

Even absent the conspiracy allegation, there is still the '

questions of why-only three findings from the Quadrex Report were notified to the NRC, why the entire report was not turned over to the NRC Staff, and why the entire report was not given to the ASLB. Depending on the answers to these questions,-the ASLB will decide not only whether NRC regulations were violated but also how those alleged violations reflect- on the character and competence of the Applicants. In the exploration of a common decision making by numerous individuals in which their individual thought processes, opinions, and actions will determine what, if any, adverse action the Board will take, CCANP is entitled to question such individuals in isolation to minimize their obvious

. incentive to tell the same innocuous story.

There is a separate issue of the credibility of the testimony of four of the witnesses in Phase I - Mssrs. Jordan, Goldberg, Frazar, and Oprea. The Board itself raised the-issue of apparent inconsistencies in previous testimony. See Memorandum 3

and Order (Phase II IIea ring s on Quadrex-Report Issues) dated February 26, 1985 at 19. In this instance, all four witnesses are tetifying about the same topics with their credibility being the issue. Sequestration is uniquely suited to the situation where the credibility of a group of witnesses on a common topic is the issue. CCANP is entitled to cross examine these witnesses without their having an opportunity to harmonize their presentations any further than they have done in their prefiled testimony.

Mr. Robertson and Mr. Powell are integral participants in the decision making process referred to as the " handling" of the Quadrex Report. Their testimony is sought to test the credibility of the testimony of other Applicant witnesses. CCANP is similarly entitled to sequestration of these witnesses to minimize their exposure to the testimony of witnesses they may unwittingly contradict.

Mr. Poston is an employee of City Public Service of San Antonio, a partner in the South Texas Nuclear Project. IIis inclination will be to protect the other witnesses by not contradicting their testimony. To minimize this inclination, CCANP seeks sequestration of Mr. Poston as well.

Regarding the attorneys (Newman, Axelrad, Gutterman, and Baker and Bo t t s) , prior representations by the attorneys presented their recollection of the role they played in the decisions regarding the Quadrex Report and the Brown and Root removal. CCANP seeks to test those recollections both through the testimony of other witnesses and the testimony of the attorneys.

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! Again to minimize the natural inclination to harmonize testimony, l CCAMP is entitled to have the attorney absent while the other i

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witnesses on this subject testify, i.e. Mssrs. Jordan, Oprea, Goldberg, Frazar, Robertson, Powell, and Poston.

While the Applicants may argue that it would be a hardship fQr these licensing attorneys to be sequestered, CCANP responds that Applicants took the position in the sixth prehearing conference that even if their attorneys were to be called as witnesses, they would have no problem with said attorneys continuing to represent them. Applicants cannot now claim hardship, if the Board decides that as witnesses the attorneys should be sequestered. The Applicants took this risk upon themselves.

Should the Board decide to grant this motion in whole or in #

part, CCANP seeks clear and comprehensive instructions from the Board to the sequestered witnesses either directly or through their attorneys regarding the limitations imposed by sequestration.

Respectfully submitted,

, dum '

Lann Sinkin Representative for Intervenor, Citizens Concerned About Nuclear Power, Inc.

3022 Porter St. N.W., #304 Washington, D.C. 20008 (202) 966-2141 Dated: July 5, 1985 Austin, Texas 5

UNITED STATES OF AMERICA g g % PONDEh -

NUCLEAR REGULATORY COMMISSION '

s BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i 00LAETED USMC In the Matter of (

)

HOUSTON LIGHTING AND ( Docket Nos. 50-498 OL i POWER COMPANY, ET AL. ) 50-499 OL TS J3. -8 R2 :22 (South Texas Project, (

> Units 1 and 2) ( 0FF!CE OF SEUit;Ar

00CKETmG & SE8vlCL BRANCH CEBIlEICAIE DE SE8 MICE I hereby certify that copies of CCANP'S 010 Tiod ~ 7'o SEQLESTGL lyffA/65xf3 '

were served by hand delivery (*) or deposit in the U.S. Mail, first class postage paid to the following individuals and entities on the 5:th day of Julg 1985, i

Charles Bechhoefer, Esquire Brian Berwick, Esquire Chairman Asst. Atty. Gen.

Atomic Safety and Licensing Board State of Texas U.S. Nuclear Regulatory Commission Environmtl. Protection Washington, D.C. 20555 P. O. Box 12548, Capitol Sta.

Austin, Texas 78711 Dr. James C. Lamb, III 4

Administrative Judge Oreste Russ Pirfo, Esquire 313 Woodhaven Road Office of the Exec. Leg. Dir.

Chapel Hill, North Carolina 27514 U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555

• Frederick J. Shon Administrative Judge Jack R. Newman, Esquire U. S. Nuclear Regulatory Commission 1615 L Street, NW, Suite 1000 Washington, D.C. 20555 Washington, D.C. 20036 Melbert Schwar=, Esquire Baker and Botts Mrs. Peggy Buchorn 300 One Shell Plaza Executive Director, C.E.U. Houston, Texas 77002 i Route 1, Box 1684 Brazoria, Texas 77422 Atomic Safety and Licensing Bd.

U.S. Nuclear Regulatory Comm.

William S. Jordan, III, Esq. Washington, D.C. 20555 Harmon, Weiss & Jordan 2,001 S Street, N.W., Suite 430 Atomic Safety and Licensing Washington, D.C. 20009 Appeal Board U.S. Nuclear Regulatory Comm.

Pat Coy Washington, D.C. 20555 5106 Casa Oro San Antonio, Texas 78230 Docketing and Service Section Office of the Secretary Ray Goldstein U.S. Nuclear Regulatory Comm.

' 1001 Vaughn Bldg. Washington, D.C. 20555 807 Brazos Austin, Texas 78701 7

, Lanny inkin

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