ML20153F037

Partial Response to ASLB 860207 Order to Show Cause Why Board Should Not Impose Sanctions Ranging from Striking Motion to Reopen Phase II Records to 10CFR2.713(c) Sanctions.Certificate of Svc Encl

ML20153F037
Person / Time
Site:	South Texas
Issue date:	02/21/1986
From:	Goldstein R Citizens Concerned About Nuclear Power, INC., GRAY & BECKER
To:
References
CON-#186-184 OL, NUDOCS 8602250282
Download: ML20153F037 (7)

Text

. Iff DOCHETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TILE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) OC [h,,'

) ERAT:%'"

HOUSTON LIGHTING & POWER ) Docket Mos. 50-498 OL COMPANY, RI (1, ) 50-499 01

)

(South Texas Project, Units 1 )

and 2)- )

CCAMP PARTIAL RESPONS.E

, TO SHOW CAUSE ORDER On February 7, 1986, the Board issued a Memoradum and Order (additional information required to resolve CCANP motion to reopen Phase II records: IV) which directed CCANP to show cause why the Board should not impose sanctions ranging from the striking of CCAMP Motion to reopen Phase II records: IV to the various forms of sanctions contemplated by 10 C.F.R. _ S2.713(c) for some letters written by Mr. Lanny Sinkin to Mr. Jack Newman. The above and foregoing response is intended to solely address the issue that a sanction of striking the motion would be inappropriate. It is the understanding of the undersigned that Mr. Lanny Sinkin intends to file a response on his own behalf regarding the motive for filing the motion, the letters and whether sanctions are appropriate as contemplated by 10 C.F.R. S 2. 713 (c ) . The basic contention of the above and ..

foregoing response is that the substantive merits of the motion to reopen is independent of any issue of motive for filing and 8602250282 B60221 ADOCK 05000498 PDR G PDR ,

03

thus this Board should address the motion to reopen as it does

. any motion to reopen with a high . regard for the character and ,

safety issues that are inherently involved with these proceedings.

That the motion (as opposed.'to the letters) raises

-significant issues that must_be addressed is amply-illustrated by the Board 's interest in the substantive merits of the i

motion. As this Board noted in its Show Cause Order:

Although CCANP advanced this inf orniation as part of a Motion to' Reopen the record as to HL& P's handling of the quadrex report (contention 9 and/or 10) , it appears ',

to us to be equally relevant to-HL&P's character and confidence to complete construction of STP.. If the individual in question were to remain with the company .

When STP is in operation, the statement might also bear upon HL&P's character-and competence to operate the

,l STP.

In addition, the Board noted that responses of the applicant 2

l snd staff did not adequately respond to this type of question.

Therefore, the Board 's own Show Cause Order illustrates that the substantive merits of the motion are independent.of its motive l

for filing and thus striking the motion would be an inappropriate sanction.

Moreover, even the State of Texas has abandoned its -

"somewhat passive role" in these proceedings to support the motion to reopen concluding as follows: )

The documents attached in the motion appear to contain potentially significant evidence regarding quadrex report. The State believes that the. records should be. l fully developed on the important issues surrounding the-l report.

i

The State additionally concluded that "the need for full adjudication of HL&P's character incompetence will not be met unless the record is reopened with additional discovery and hearings." Thus, if this Board were to strike the motion-to reopen it would be denying the opportunity for an independent party with the nost significant interest in the project, the ,

State of Texas, from participating in further discovery and proceedings on the relevant issues. Thus, striking the motion to reopen is an inappropriate sanction.

CCANP notes that Applicants did not request that the motion to reopen be struck. The Applicants and their counsel are well aware of the procedure for striking a motion .to reopen as is t illustrated by thair earlier filings with re' gard to the motion to reopdh which CCANP volunrarily withdrew from the proceedings. CCANP also notes that the Applicants' main objection was that the letters written by Mr. Lanny Sinkin represented conduct inconsistent with standards of " honor, dignity and decorum" as set forth in 10 C.F.R. 52.73(a). None of the sanctions listed in 10 C .F . R. S2.713(c) involve striking a motion to reopen. In fact, all of the sanctions in .10 C.F.R.

S2.713(c) involve sanctions to the representative of a party and-not a sanction to a party itself. Thus, striking.the motion to reopen would punish CCANP rather than its representative, Mr. Lanny Sinkin.

The letters written by Mr. Sinkin speak for themselves and as stated above, Mr. Lanny Sinkin will address the issue of the motive behind those letters. If the letters did represent a

" threat" of any kind, which CCANP denies, they certainly did not involve a " threat" not to file the motion to reopen which was actually filed concomitantly with the dates of the letters.

Thus, striking the motion to reopen would be inappropriate because the objectionable aspect of the letters, if any, do not relate to the filing of the motion to reopen.

The motion to reopen clearly represents an attempt by a representative for a party to fulfil his obligation under the McGuire Doctrine by supplying the Board additional relevant 4 evidence regarding character and safety. The motion to reopen would have had to be brought to this Court's attention regardless of any extraneous correspondence between the parties.

She letters, on the other hand, if they represent anything at all, represent only an overly naive and idealistic attempt to settle this proceeding. There is no doubt that there is not a document that CCAMP could produce or prepare which would induce.

the settlement of this litigation. It is clear that Applicants used the letters as a means of attacking the motion to reopen not on its merits but as an irrelevant side issue. It is ironic that Mr. Newman "cannot conceive of passions running so high" in this proceeding considering the earlier investigation of Mr. Sinkin's personal military records. In any e'1ent, the 1

I letters are irrelevant to the motion.to reopen and thus striking the motion to reopen would be inappropriate.

4 It is time for the Board to put away, once and for all, the Applicants' tired, old argument regarding possible discovery by 4

CCANP that might have been done years ago. Egg, Applicants' Response at page 8. It is also time for the Board to reject once and for all the argument that documents were easily available to CCANP at the Matagorda County Courthouse ence the stay was lifted considering the fact.that CCANP's counsel work-for free and reside in Austin, Texas and Washington D.C. Seg, Staff's Response at 3 and Applicants' Response at 9. Even the Applicants acknowledge that not all documents involved in the litigation are generally available. Egg, ST-II;L-AE-13 4 6 (South Texas Project Litigation Review Program) . It is clear that the Board must take one of two actions: _(1) allow broad discovery and not severely limited discovery whicli. allows the Applicants to not produce relevant material like the Salterelli information. Eta, State of Texas' Response at 2 concluding. that j the " severe limits precluded from discovery potentially -

! significant evidence -- July, 1984, deposition of a senior Brown Root official, in his December, 1980 or January, 1981 memorandum.") .The State of Texas puts it wellLwhen it questions as follows:

One wonders what more evidence could be brought to light, .especially since the conclusion of the HL&P v.

Brown E Root li tig ation . Clearly, broader discovery is now in order.

4 An alternative to the lengthy, time-consuming and adversarial route of ordering broad discovery which CCANP has i sought on several occasions would be for the Board to f ashion a discovery order which put the burden on the Applicants to ,

produce any and all relevant information available to Applicants-from the litigation (whether it was filed with the Court or not filed with the Court) reg arding the quadrex report and the motive for authorizing the quadrex report. Given Newman and Holtzinger's and Baker & Botts' involvement in the litigation, such an order would not be overly burdensome to applicants. The Board could then avoid a continuing series of motions to reopen as is occurring presently. Applicants have the resources to officially produce relevant materials known to them. CCANP does l not. Given the critical safety-issues of interest to the Board, i

either broad discovery by CCANP or Board-ordered production by the Appl'1 cants should begin immediately.

I Respectfully submitted ,

j GRAY & BECKER 901 Vaughn; Building 807 Brazos

Austin, Texas 78701 (512) 482-0061

.1 By: * /

Ray G81dstein 4

1

f 4

4 00LKElEP CERTIFICATE OF SERVICE I certify that a true and correct copy of t app 38

foregoing Response was mailed, first-class post , he

} following on this 21st day of February,1986.

0Frit.; . * . J Charles Bechhoefer, Esq. , Chairman

• 00CKlit% e - 'M BRANC" Administrative Judge Brian Berwick, Esq.

Atomic Safety and Licensing Board Assistant Attorney General

, Panel Environmental Protection Division U.S. Nuclear Regulatory Commission P.O. Box 12548, Capitol Station l Washington, DC 20555 Austin, TX 78711 i

Dr. James C. Lamb III Administrative Judge Jack R. Newman, Esq.

313 Woodhaven Road Newman & Holtzinger, P.C.

Chapel Hill, NC 27514 1615 L Street, N.W.

Washington, DC 20036 Mr. Frederick J. Shon*

Administrative Judge Atomic Safety and Licensing Board Mrs. Peggy Buchorn Panel Executive Director ~ ,

U.S. Nuclear Regulatory Commission "' Citizens for Equitable Utilities,  !

Washington, DC 20555 Inc.

Route 1, Box 1684 Mell ert Schwarz , Jr. , Esq . Brazoria, TX 77442 Brker and Botts One Shell Plaza Houston, TX 77002 Kim Eastman, Co-coordinator Atomic Safety and Licensing Board Barbara A. Miller Panel

• Pat Coy U.S. Nuclear Regulatory Commission Citizens Concerned About Nuclear Washington, DC 20555 Power 5106 Casa Oro Atomic Safety and Licensing Appeal San Antonio, TX 7 P."3 3 Board Panel

• U.S. Nuclear Regulatory Commission Oreste Russ Pirfo, Esq. Washington, DC 20555 Robert G. Perlis, Esq.

Office of the Executive Legal Lanny Allan Sinkin Director Christic Institute U.S. Nuclear Regulatory Commission 1324 North Capitol Street Washington, D.C. 20555 Washington, D.C. 20002 Docketing and Service Section*

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

Ray Go38 stein ,