ML20128M379

Motion to Quash Subpoenas of C Robertson,J Poston & M Powell Re Quadrex Rept.Certificate of Svc Encl.Related Correspondence

ML20128M379
Person / Time
Site:	South Texas
Issue date:	07/18/1985
From:	Axelrad M HOUSTON LIGHTING & POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#385-920 OL, NUDOCS 8507250300
Download: ML20128M379 (12)

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WTED CORRM UNITED STATES OF AMERICA 00LKETED NUCLEAR REGULATORY COMMISSION USMC BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

,85 JUL 24 A10:54 In the Matter of f.,mcE y 3duk m.

00C8EilhG A SEFv:fI Docket Nos. 50-498 OL BRANCH HOUSTON LIGHTING & POWER COMPANY, ET A_L_. 50-499 OL (South Texas Project, Units 1and2)

NOTION OF APPLICANTS TO QUASH SUBPOENAS OF MR. CLOIN ROBERTSON, MR. JESSE POSTON AND MR. MICHAEL POWELL Applicantsmove,pursuantto10C.F.R.52.720(f)and10C.F.R.G2.757(a),

for an order quashing the subpoenas of Mr. Cloin Robertson, Mr. Jesse Poston and Mr. Michael Powell issued at the request of Citizans Concerned About Nuclear Power ("CCANP"). The grounds supporting Applicants' motion are set forth below.

I.

On June 13, 1985, CCANP submitted a list to the Board identifying the witnesses it planned to subpoena to testify at the Phase II hearings ("CCANP's Identification of Witnesses," hereafter "CCANP's Identification"). By order of June 24, 1985, the Board stated that it would issue subpoenas to the "non-NRC named witnesses who are not already scheduled to be witnesses." (" Memorandum and Order (telephone conference call of June 21,1985)"at4). However, the Board required CCANP to " file a statement of what it intends to prove . . .

through the testimony of all non-NRC employees on its list . . . , together with some identification of why it expects each witness to so testify." id. CCANP filed this statement on June 26,1985 ("CCANP Specification of Testimony Sought from CCANP Witnesses," hereaf ter "CCANP's Specification").

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Section 2.720(f) of the Commission's Rules of Practice provides that:

the Commission may: (1) Quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any matter in issue . . . .

In addition, Section 2.757 provides:

To prevent unnecessary delays or an unnecessarily large record, the presiding officer may: i (a) Limit the number of witnesses f whose testimony may be cumulative.  !

See also Part 2, App. A,Section V(d)(5).

As discussed at pages 9-11 of " Applicants' Memorandum Concerning the Permissibility of and Need for Calling Certain Attorneys for the Applicants as Witnesses," the authority to quash subpoenas which would call for duplicative or cumulative testimony is established in federal case law. Harvey v. Andrist, 754F.2d569,572(5thCir.), cert. denied,53U.S.L.W.3838(1985). In Harvey, 4

the court upheld the district court's refusal to subpoena certain witnesses, stating: "It is well established that testimony which is merely repetitious and

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! cumulative of testimony already introduced may be excluded by the trial court in its discretion." Accord Meadow & Walker Drilling Co. v. Phillips Petroleum Co.,

417F.2d378,382(5thCir.1969). See also in re Arthur Treacher's Franchisee f 4 Litigation,92F.R.D.429,438-39(E.D.Pa.1981)(inwhichthecourtquasheda subpoena that sought testimony concerning a meeting which four others attended, l -

on the ground that the testimony would be duplicative and cumulative); Johnson

v. University College of the University of Alabama in Birmingham, 706 F.2d 1205, 1208-09 (11th Cir.1983), cert. denied 104 S.Ct. 489 (upholding the quashing of 4

a subpoena duces tecum on grounds not only that the subpoena was of questionable relevance but also that much other evidence on the subject had already been submitted). ,

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In the discussion that follows, Applicants demonstrate that, in light of the areas of testimony identified in CCANP's Specification, the subpoenas of Mr.

Robertson, Mr. Poston and Mr. Powell would serve only to elicit testimony that ,

is either cumulative or irrelevant to the issues in Phase II. Moreover, in CCANP's Specification it has failed to comply with the Board's directive that it set forth clearly what it intends to prove through each witness or why it expects each witness to so testify. JJ Such subpoenas should therefore be quashed in accordance with the Commission's rules and consistent with practices in the federal courts. ,

A. Mr. Cloin Robertson In CCANP's Identification, CCANP states that it is calling Mr. Cloin Robertson "to testify regarding his role in the decision making process regarding which items in the Quadrex Report would be notified to the Nuclear Regulatory Commission Staff and whether the Quadrex Report as a whole would be turned over to the ASLB." (CCANP's Identification at No. 5). In CCANP's . l Specification, CCANP makes clear that it is asking Mr. Robertson to testify as to the May 8,1981 meeting at which Mr. Goldberg, Dr. Sumpter and Mr. Robertson examined the Quadrex Report and Brown & Root's evaluation of that report.

(CCANP's Specification at 6).

Such testimony would be completely duplicative or cumulative of testimony already being presented in this proceeding. Applicants have filed the testimony of Mr. Goldberg and Dr. Sumpter. A major portion of Mr. Goldberg's testimony is devotedtotheMay8 meeting (at22-49),andthemeetingisalsodiscussedby l

l Dr. Sumpter in his prefiled testimony (at 13). As of the date of this motion, i 1/ In some instances, CCANP has improperly used the CCANP Specification to expand upon the matters described in the CCANP Identification.

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4 Mr. Goldberg had been cross-examined extensively concerning the reportability review of May 8, and Dr. Sumpter, the next scheduled witness, was also available for cross-examination thereon.

The Robertson subpoena clearly calls for the exercise of the Board's authority to quash unreasonable subpoenas (10 C.F.R. 2.720(f)) in circumstances where it is necessary to " limit the number of witnesses whose testimony may be cumulative."

Moreover, CCANP's statement as to what Mr. Robertson is expected to testify to (CCANP's Specification at 6) provides no justification for the subpoena request. 2/ Indeed, the statement is not only unfounded but in total disregard of the Board's order for CCANP to identify "why it expects each witness to so testify." 3_/ (Memorandum and Order (Telephone conference call of June 21,1985)at4). In the course of that telephone conference the Board clearly stated that it expected a statement in the nature of an offer of proof.

The pleading is simply an attempt to call a duplicative witness in the empty hope, and without any expressed reason to believe, that he may contravene the testimony of other witnesses.

AtthesehearingsHoustonLighting&PowerCompany("HL&P")isproviding testimony by its principal involved management, as well as knowledgeable members 2/ CCANP states:

"Mr. Robertson is expected to testify that during his participation in the HLAP review of the Quadrex Report, Mr. Goldberg made it clear that even though he thought there might be a need to report many of the findings in the Quadrex Report and even to turn over the entire report to the NRC, the goal of the review was to minimize the number of reports to be made."

3/ To the contrary, an examination of NRC Investigation Report No. 82-02 which includes the separate sworn statements of Messrs. Robertson, Sumpter and Goldberg shows no conflict on the matters for which Mr. ,

Robertson's testimony is requested.

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l of its staff, the Quadrex project manager and Bechtel experts who have reviewed the Quadrex Report. The number of witnesses and their backgrounds encompass all aspects of the Quadrex Report and fully cover everything requested or suggested by the Board. For Applicants to be compelled to produce yet another HL&P l

witness, whose testimony would be merely cumulative and in circumstances where l

CCANP has failed to provide anything like the required offer of proof for its l

l expectations as to the witness's testimony, is burdensome, unreasonable, and in l

l contravention of the objective of the Commission's rules which call for the i

avoidance of unnecessary delays and an unnecessarily large record. (10C.F.R. 2.757).

B. Mr. Jesse Poston  !

CCANP has subpoenaed Mr. Jesse Poston to testify "regarding the discussions held by the Management Committee for STNP regarding the Quadrex Report and l

l communication or lack thereof regarding that report to the NRC and parties to l l

this proceeding.

Reference:

Applicants [ sic] response to Board ordered [ sic]

discovery, Documents #10,12, 44." (CCANP's Identification at No. 11; see also l

! CCANP's Specification at 10). Mr. Poston was the representative on the Management Committee from the City Public Service Board of San Antonio, and the referenced documents deal with notes of two meetings of the Committee (on April 27 and June 26,1981) which Mr. Poston attended. Both Mr. Oprea and Mr.

Goldberg, who also attended those meetings, are already testifying in this proceeding.

l In its Specification, CCANP sets forth four points as to which it expects Mr. Poston to testify. The " offer of proof" required by the Board is wholly lacking with respect to any of those matters. The pleading is classic discovery I

at the eleventh hour - a "wish list" without foundation. ,

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l First, CCANP states that Mr. Poston is expected to testify "that three weeks prior to the receipt of the final Quadrex Report, Mr. Goldberg told the Management Committee that all of the Most Serious Quadrex findings would be

! reported to the NRC since they affected licensing." (CCANP's Specification at t

l l 10). The basis for CCANP's statement appears to be Document 12, which contains draft notes of a Management Committee meeting of April 27, 1981 (less than two weeks before receipt of the final Quadrex Report). These notes (which have been

! introduced into evidence as Applicants' Exhibit 59) simply indicate Mr.

Goldberg's expectation that when the Quadrex Report would be issued, its i

findings would be divided into four categories, with the "most serious" defined as those which "will reflect on licensability" and would have to be reported to the NRC. (Document 12(Applicants' Exhibit 59)at2130). The changes in this definition and their effect on reportability are addressed by Mr. Goldberg in t

hisprefiledtestimony(at15-16)andMr.Goldbergwasavailablefor cross-examination thereon. See also prefiled Sumpter testimony at 9-10. Mr.

Sumpter was primarily responsible as HL&P's coordinator in developing the l categories of findings. Mr. Oprea can also be questioned concerning the April 27, 1981 meeting. Further testimony from Mr. Poston, who could only report what Mr. Goldberg said, would be cumulative and duplicative. CCANP has made no l

l showing of why such cumulative testimony should be required, and the request i

should therefore be denied. H_arvey, 754 F.2d at 572; in re Arthur Treacher's, 92 F.R.D. at 438-39; Johnson, 706 F.2d at 1208-09.

CCANP also expects Mr. Poston to testify "that after receipt of the Quadrex Report by HL&P, the Quadrex Report became a major problem recognized by the partners as facing the project." (CCANP'sSpecificationat10-11). Document 44, containing draf t notes of a June 26, 1981 Management Committee meeting.

l simply includes a heading "Maj. Prob. List" under which the Quadrox review is i

7 listed, along with ten other items. This hardly constitutes an " offer of proof" but, more importantly, the question of whether the Quadrex Report became a

" major problem" to the co-owners is irrelevant to the issues in this proceeding, which concern whether the Quadrex Report should have been reported to the NRC.

See FDIC v. Mercantile National Bank of Chicago, 84 F.R.D. 345, 350 (N.D. Ill.

1979) (subpoena modified where it did not " exhibit any particular nexus to the issues raised by [the] complaint"); Demeulenaere v. Rockwell, 13 F.R.D. 134 (S.D. NY 1952) (subpoena duces tecum modified so that items requested related to specificallegationsincomplaint). See also Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669,15 NRC 453, 479 (1982) (Board refused to issue subpoena for lack of relevance where testimony requested related to a concern that was not one of issues in proceeding).

Similarly, CCANP's only proferred basis for expecting Mr. Poston to testify "that members of the Management Committee repeatedly questioned whether the Quadrex Report would be turned over to entities outside the project . . . and that repeatedly Mr. Goldberg refused to do so" (emphasis added) is a notation in the draft notes of the June 26, 1981 meeting that Mr. Goldberg "has refused to send [theQuadrexReport]toNRC." (Document 44 at 2143, marked for identification as Applicants' Exhibit 70). That document reflects only that the question was raised once, and answered by Mr. Goldberg. Mr. Goldberg has, in any event, testified as to his actions and thinking regarding the release of the QuadrexReport(Goldbergprofiledtestimonyat 49-51,52-53), and was questioned at the hearing session of July 18, 1985, on the precise portion of these draft notes. Mr. Oprea attended the June 26 meeting and can therefore also be questioned concerning such meeting. The slim documentation upon which CCANP relies cannot justify calling a witness to provide testimony that at best would be merely cumulative.

8 Finally, CCANP expects Mr. Poston to testify "that the members of the Management Comittee were familiar with the requirements of 50.55(e) but took no steps to independently assure that the HL&P decisions on 50.55(e) regarding Quadrex were appropriately made." (CCANP's Specification at 11). The premise that the members of the Management Comittee had either the competence or responsibility for making the sophisticated technical and regulatory judgments involved in reporting matters under the Comission's regulations is wholly without foundation and preposterous. Clearly, among the Applicants, HL&P has the responsibility to make Section 50.55(e) reports, and is the sole Applicant with sufficient technical staff and familiarity with project design for these purposes. It is HL&P's competence to make such judgments which is at issue and not the Management Comittee's. CCANP thus has shown no reason why Mr. Poston should have to testify.

C. Mr. Michael Powell CCANP's Identification at No. 6 states that CCANP is calling Mr. Michael Powell "to testify regarding his role and the role of the HL&P Incident Review Comittee (IRC) in the notification to the NRC of 50.55(e) potentially reportable items and in the reporting of significant developments at the project to the ASLB during the period April-June 1981." In its Specification at 6-7, CCANP states that Mr. Powell is " expected to testify" that on May 8, 1981 he followed Mr. Goldberg's direction to report only three findings, that he had "little, if any, knowledge of the actual substance" of the Quadrex Report, that the HL&P procedure for notifying the NRC of matters pursuant to 10 C.F.R. I 50.55(e)(whichplacedthatresponsibilitywiththeIRC)"wasnotfollowed"in the case of the Quadrex Report, and that the IRC reviewed the three matters which were reported, rather than the " entire re,3 t".

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9 The factual matters upon which Mr. Powell's testimony is sought are already part of this record and are uncontroverted. (See Mr. Goldberg's prefiled testimony at 23-25; Tr.11755-58,12527-31, and hearing session of July 18, 1985.) These are quite simply that: (1) Mr. Powell was Chairman of the Incident Review Committee (IRC) on May 8,1981;(2) the portions of the HL&P procedures providing for the determination of reportability of deficiencies by the IRC were not used in the review of the Quadrex Report; (3) the decision not to use the IRC was made by Mr. Goldberg; (4) Mr. Powell called the NRC on May 8, 1981, to notify the NRC of the three items in the Quadrex Report whose potential reportability had been determined by Messrs. Goldberg, Sumpter and Robertson; (5) Mr. Powell followed Mr. Goldberg's instructions to notify the NRC of those 1

three items; and (6) neither the IRC, nor its individual members, reviewed the Quadrex Report to determine its reportability, other than the three items which were reported to the NRC by Mr. Powell on May 8,1981. Absent essential facts in controversy and, given the prior testimony on these matters, the testimony sought from Mr. Powell is not necessary to the development of the record and is, at best, cumulative. No reason thus exists to compel Mr. Powell's testimony. 4/

II.

The testinony CCANP requests would add no new information which is essential to the development of a full and complete record in this proceeding.

It is for the most part "merely repetitious and cumulative of testimony already introduced." Harvey, 754 F.2d at 572. Moreover, in most instances CCANP's 4/ CCANP originally indicated that it would like to cross-examine Mr.

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Powell regarding the reporting of certain, unspecified "significant developments at the project during . . . April-June 1981"

.(Identification at 6). However, it has failed to identify either what those matters are or how they are relevant to the issues being litigated and has, therefore, not complied with the Board's June 24,

' 1985 directive to describe what it " intends to prove" through Mr.

Powell's tee.imony, t

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10 suppositions as to what the witnesses would testify are entirely speculation and .

1 clearly not in the nature of an " offer of proof" as contemplated by the Board.

CCANP also makes requests for testimony that would ba irrelevant to the issues in this proceeding. The Board should therefore exercise its authority "to prevent unnecessary delays or an unnecessarily large record" (10 C.F.R. 92.757) and to minimize undue and unreasonable burdens on Applicants, by quashing these subpoenas.

WHEREFORE, for the foregoing reasons, Applicants urge the Board to grant Applicants' motion to quash the subpoenas of Messrs. Robertson, Poston and Powell.

Respectfully submitted, Jack R. Newman Maurice Axelrad Alvin H. Gutterman Stephen P. Frantz Donald J. Silverman 1615 L Street, N.W.

Washington, D.C. 20036 Finis E. Cowan 3000 One Shell Plaza Houston, Texas 77002 Dated: July 18, 1985 ,

NEWMAN & HOLTZINGER, P.C. ATTORNEYS FOR HOUSTON LIGHTING &

1615 L Street, N.W. COMPANY, Project Manager of the Washington, D.C. 20036 South Texas Project acting herein on behalf of itself and the other BAKER & BOTTS Applicants, THE CITY OF SAN 3000 One Shell Plaza ANTONIO, TEXAS, acting by and Houston, Texas 77002 through the City Public Service Board of the City of San Antonio, CENTRAL POWER AND LIGHT COMPANY, and CITY OF AUSTIN, TEXAS.

7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00M ETED USNRC BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) FF HOUSTON LIGHTING & POWER ) Docket Nos. 50-498 OL 'f 0C G S i COMPANY, ET A_L_. ) 50-499 OL BRANCH (South Texas Project, Units 1and2)

CERTIFICATE OF SERVICE I hereby certify that a copy of " Motion of Applicants to Quash Subpoenas of Mr. Cloin Robertson, Mr. Jesse Poston and Mr. Michael Powell" has been served on the following individuals and entities by hand delivery, deposit with air courier or deposit in the united states mail, first class, postage prepaid as designated, on this 18th day of July,1985.

Charles Bechhoefer, Esq. (Hand Del.) Brian Berwick, Esq. (Mail)

Chairman, Administrative Judge Assistant Attorney General Atomic Safety Atomic Safety and Licensing Board for the State of Texas U.S. NuclearRegulatory Commission Environmental Protection Washington, D.C. 20555 Division P.O. Box 12548, Capitol Station Dr. James C. Lamb, III (Hand Del.) Austin, TX 78711 Administrative Judge 313 Woodhaven Road KimEastman, Coordinator (Mail)

Chapel Hill, NC 27514 Barbara A. Miller Pat Coy FrederickJ.Shon(HandDel.) Citizens Concerned About Administrative Judge Nuclear Power Atomic Safety and Licensing Board 5106 Casa Oro U.S. Nuclear Regulatory Commission Washington, D.C. 20555 San Antonio, TX 78233 Mrs.PeggyBuchorn(Mail) LannyAlanSinkin(HandDel.)

Executive Director 3022 Porter St., N.W., #304 Citizens for Equitable Washington, D.C. 20008 Utilities, Inc.

Route 1, Box 1684 Ray Goldstein, Esq. (Mail)

Brazoria, TX 77422 Gray, Allison & Becker 1001 Vaughn Building 807 Brazos Austin, TX 78701-2553 a

2 Oreste Russ Pirfo, Esq. (Hand Del.)

Robert G. Perlis, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Comission Washington, D.C. 20555 AtomicSafetyandLicensingBoard(Mail)

U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board (Mail)

U.S. Nuclear Regulatory Comission ,

Washington, D.C. 20555 DocketingandServiceSection(Mail)

Office of the Secretary U.S. Nuclear Regulatory Comission Washington, D.C. 20555

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