ML20198B843

Motion to Strike Reckless Charges in 851029 Withdrawal Motion from Record.Intervenor Should Be Warned That Repetition of Behavior Will Not Be Tolerated.Certificate of Svc Encl

ML20198B843
Person / Time
Site:	South Texas
Issue date:	11/04/1985
From:	Axelrad M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#485-072, CON-#485-72 OL, NUDOCS 8511070280
Download: ML20198B843 (13)

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UNITED STATES OF AMERICA

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(.a NUCLEAR REGULATORY COMMISSION C$2 J 7 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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HOUSTON LIGHTING & POWER ) Docket Nos. 50-498 OL COMPANY, ET AL. ) 50-499 OL

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(South Texas Project, Units 1 )

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APPLICANTS' RESPONSE TO "CCANP MOTION TO WITHDRAW MOTION",

DATED OCTOBER 29, 1985 I. Introduction On November 1, 1985, Applicants received "CCANP Motion To Withdraw Motion" dated 10/29/85 (Withdrawal Motion). Therein CCANP moves to withdraw its October 16, 1985 motion to reopen the Phase II record, which was based on notes (dated September 22, 1981) of a meeting on the morning of September 12, 1981 in which certain HL&P management officials and legal counsel partici-pated. 1/ Motion III accused Applicants' counsel (Mr. Newman) of gross risconduct and HL&P management of ficials (Mess: 3. Jordan and Goldberg) of presenting perjured testimony. Underlying its Motion III was CCANP's erroneous assertion that Applicants failed to produce the notes as required by the Board's June 18, 1985,

-1/ CCANP Motion to Reopen the Phase II Record: III and for Discovery (October 16, 1985) (Motion III, hereinafter).

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Memorandum and Order, 2/ and CCANP's distorted interpretation of Applicants' Phase II testimony. Although CCANP now seeks to withdraw its Motion III based upon its recognition that Applicants did, in fact, produce the document in question (Withdrawal Motion at 5), it reiterates its charges against HL&P management. CCANP continues to assert that Applicants' witnesses lied in their testimony and (implicitly) that Applicants' counsel, although aware of the facts, did not attempt to correct the record. Withdrawal Motion at 1, 4 and 5. As shown below, the testimony was truthful and there was no error to correct.

The charges made in CCANP's Motion III and reiterated in its Withdrawal Motion are baseless and scandalous.

The effect of granting CCANP's Withdrawal Motion would be to eliminate the need to consider the requests for relief in CCANP's Motion III. Since Applicants agree that such relief should be denied, they do not oppose the Withdrawal Motion.

However, in acting on the Withdrawal Motion, the Board should strike from the record both CCANP's Motion III and its Withdrawal Motion because they contain charges that defame HL&P management and Applicants' counsel. Comparable attacks on the integrity and professional responsibility of Applicants' counsel and HL&P management officials have been made by CCANP on at least three prior occasions. 3/ Motion III requires a strong response, 2/ Memorandum and Order (Jur e 18, 1985) (Memorandum and Order) at 34.

3/ See e.g., Tr. 14186-89, 14193-94; CCANP Motion for Board

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not only to preserve the reputations of those affected, but also the integrity of the adjudicatory process. In addition, CCANP's representative should be admonished that further unwarranted accusa'. ions regarding the integrity of Applicants' counsel or management officials will result in sanctions. 4/

II. Argument Pursuant to 10 C.F.R. S 2.713(a), " parties and their representatives . . . are expected to conduct themselves [in NRC proceedings] with honor, dignity and decorum as they should before a court of law." Gratuitous comments regarding opposing counsel are unwarranted. Northern Indiana Public Service Co.

(Bailly Generating Station, Nuclear-1), ALAB-204, 7 AEC 835, 837-38 (1974).

10 C.F.R. S 2.718(e) authorizes NRC adjudicatory boards to regulate the conduct of participants in NRC proceedings.

Pleadings which do not " live up to the~high standard of practice Ordered Production of Documents, To Reopen the Record, for New Contention, for Discovery, and for Extensions of Time (September 30, 1985) at 15 (September 30 Motion to Reopen);

CCANP Motion to Reopen Phase I Record (April 15, 1985) at 4-6, 9-10.

4/ In the Board's May 17, 1985 Sixth Prehearing Conference Order at 14-15, CCANP (as well as Applicants' counsel) were admonished for making " charges and countercharges against each other -- including ' cheap shots' which contribute nothing to resolving" the issues before the Board, and for

" quoting critical passages out of context, amounting to a lack of candor in dealing with the Board," and warned that similar behavior in the future would result in sanctions.

CCANP has ignored that warning.

I 4-expected before . . . [the] Commission" may be struck (Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), slip op., (September 17, 1985)). 5/

In addition, 10 C.F.R. S 2.708(c) provides that "[t] he signature of a person signing [a document) in a representative capacity is a representation that he has read it and knows the contents, that to the best of his knowledge, information, and belief the statements made in it are true, and that it is not interposed for delay. If a document ... is signed with intent to defeat the purpose of this section, it may be stricken."

Implicit in the rule is the obligation of a representative to make some reasonable investigation of the truth of the allega-tions. Cf. Rhinehart v. Stauffer, 638 F.2d 1169 (9th Cir. 1979).

Motion III asserted that Applicants' counsel failed to produce the notes of the September 12 meeting as required by the Board's Memorandum and Order. Motion III at 1, 5. As CCANP has subsequently acknowledged, 6/ -Applicants did, in fact, produce the document in question. CCANP's Withdrawal Motion " explains" 5/' In Comanche Peak, the Licensing Board struck a party's motion to compel which contained "[a}d hominem attacks on opposing counsel," and " baseless" allegations. Id. at 2.

See, Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), LBP-81-34, 14 NRC 637, 678

. 11981), in which the Licensing Board struck an affidavit amounting to a " scurrilous personal attack upon Applicants' affiant. . . ." See also, Louisiana Power & Light Co.

(Waterford Steam Electric Station, Unit 3), ALAB-121, 6 AEC 319 (1973) in which the Appeal Board struck sua sponte a brief which represented "a gratuitously insulting personal attack" on the Licensing Board Chairman.

6/ Withdrawal Motion at 2.

D that in filing its Motion and leveling its charge against Applicants' counsel, CCANP made no effort to investigate the validity of its charges. It failed to approach Applicants' counsel off the record (although it previously recognized that such action would be appropriate (Tr. 14194)); failed to consult Statf counsel; failed to review the documents produced by Applicants; and even failed to consult the list of produced documents contained in Applicants' July 2, 1985, transmittal letter (although it admits that letter was readily accessible).

Nevertheless Motion III cited the July 2, 1985 letter (Motion III at 1; as if CCANP had reviewed it, implying that the letter did nca list the notes of the September 12, 1981, meeting. CCANP's conduct in filing its Motion III thus reflects a reckless disregard of the standards applicable to parties to NRC pro-ceedings. This is at least the second instance in which CCANP has proceeded in this fashion only to withdraw such charges after finding them baseless. 7/

Of even greater concern is CCANP's penchant for stretching the record beyond the bounds of reasonable inter-pretation, alleging " inconsistencies" in testimony that do not exist and then equating such inconsistencies with perjury on 7/ During the Phase II hearings, CCANP alleged that Applicants had failed to produce another document within the scope of a Board production order (Tr. 12660-63, 14186-89), and subsequently apologized after determining that the document had, in fact, been produced (Tr. 14193-96).

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the part of officers of HL&P. One of CCANP's most flagrant distortions is its allegation that Mr. Jordan lied regarding Mr.

Newman's presence at the September 12 meeting. Motion III at 3.

At the very pages cited by CCANP (Tr. 11981-83, 12164 (Jordan)), Mr. Jordan testified that Messrs. Goldberg and Oprea assisted in rating the various candidates for replacement contractors, and that while he did not recall precisely who attended the September 12 meeting, Mr. Jordan explicitly stated that "[f] rom the standpoint of contract terms and . . . regu-latory advice, Mr. Newman assir,ted . . . " in their deliberations.

Tr. 11981-82 (Jordan). To allege that Mr. Jordan testified, either explicitly or implicitly, that Mr. Newman was not present at the September 12 meeting is to take grotesque liberties with the plain language of the testimony. 8/ The testimony of the other witnesses present at the meeting also mentioned Mr.

Newman's participation (Tr. 12680-83 (Goldberg); Tr. 14388-89 (Oprea)), as has every relevant filing by Applicants in this proceeding (Applicants' Proposed Findings of Fact and Conclusions

-8/ Accordingly, although CCANP professed " profound concern" regarding "why Mr. Newman ... made no effort ... to have Mr.

Jordan correct [his] testimony about Mr. Newman's presence and role on the morning of September 12, 1981," (Motion III at 5) there was no error to correct. CCANP was all too willing to charge counsel with unethical conduct without fulfilling its obligation to check the accuracy of its charges. CCANP's apology for this baseless charge in its Withdrawal Motion (at 5) is premised on the strange conclusion that it would not be improper to permit erroneous testimony if opposing counsel was aware of the error. That is not Applicants' view. However, here there was no error in the testimony.

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of Law (Phase II) (September 30, 1985) (Applicants' Proposed Findings) at 11 IX.28, IX.33; Draft " Chronology of Events" submitted to the Board and the parties by letter from A. H.

Gutterman (July 29, 1985) at 4; Applicants' Memorandum Concerning Counsel's Continued Representation of Appli. cants (April 25, 1985) at 3-4). 9/

In short, CCANP's allegations that Mr. Jordan lied regarding Mr. Newman's presence at the meeting on September 12 and that Applicants somehow attempted to obscure the fact of Mr. Newman's presence are so outlandish, and based upon so gross a mischaracterization of the record, as to raise questions regarding the good faith with which they were proffered.

CCANP also accuses Mr. Goldberg of lying regarding Mr.

Newman's role at the September 12 meeting. In particular, CCANP alleges that the notes of the meeting demonstrate that Mr. Newman was a " key participant" in that meeting " contrary to the sworn testimony of Mr. Goldberg." Motion III at 4. This allegation is no more than a repetition of CCANP's familiar assertion that Mr.

9/ CCANP asserts disingenuously that a sentence in Applicants' response to its September 30, 1985 motion to reopen was intended to show Mr. Newman was not even present. Motion III at 3 n.*. That sentence stated that "neither the

[ Jordan] Chronology entry cited by CCANP nor any other entry refers to the meeting on the morning of September 12, 1981. . . . " Applicants' Response In Opposition to CCANP Motion Dated September 30, 1985 (October 10, 1985) at 17.

It is perfectly clear that Applicants, in noting the absence of an entry in the Jordan chronology regarding the September 12 meeting, were simply pointing out that, since the meeting was not even mentioned, the chronology was irrelevant to CCANP's earlier charge regarding the role of counsel.

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Newman was a " decision-maker" on the question of replacement contractors, which was reiterated without foundation in CCANP's September 30 Motion.

Far from supporting CCANP's position, the notes of the September 12 meeting furnish strong support for Mr. Goldberg's recollection of those events as well as the related testimony of Mr. Oprea. Mr. Goldberg testified that, while Mr. Jordan made the HL&P management decision to select Bechtel, Mr. Newman "had an opinion about some of the people that we met that he would share with me." Tr. 12676 (Goldberg). He also testified that on the morning of September 12th he and Mr. Oprea:

evaluated the contractors in a broad range of areas of interest on management capability, experience, technical competence, quality of-the people that were wi] ling to commit to the job. -And Mr. Newman had provided advice on the strengths that he saw in the areas of licensing, and regarding . . . commercial terms . . . Mr. Newman did not, to the best of my knowledge, rate the contractors in the areas of management . . . and technical competence . . . . And I believe Mr.

Newman's remarks were confined to those areas of licensing, commercial terms. If he expressed an opinion about anything else, it was an opinion of a very casual nature, he was not asked to provide us insights on management competence.

Tr. 12680-82 (Goldberg). Finally, he testified that:

Mr. Newman was very impressed with Stone &

Webster's licensing capability and he was also impressed with the manner in which Stone

& Webster was going to handle the licensing aspects of the takeover. He thought they had a pretty good strategy. And he shared that with Mr. Jordan as we did Mr. Oprea and myself.

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Tr. 12682 (Goldberg). See also, Applicants' Proposed Findings at 1 IX.33.

Mr. Oprea also testified that, at the meeting, Mr. Newman expressed views as to his preference among the firms being considered and that his preference was primarily based upon his perception of Stone & Webster's skill and understanding on licensing issues. Tr. 14388-89 (Oprea). The notes of the September 12 meeting so strongly support the record that any argument to the contrary is plainly' specious.

Although it was not necessary to the consideration of its withdrawal request, rather than retracting these specious cha_Jes, CCANP's Withdrawal Motion reiterates them. In fact the only charge it withdraws is its assertion that Applicants did not produce the notes of the September 12, 1981, morning meeting.

Its other charges are also baseless and made with reckless disregard for the truth. Such pleadings should be stricken from the record. CCANP's Withdrawal Motion should not be permitted to have the effect of allowing its charges to be left on the record unrefuted.

While the use of strong language may be an element of zealous advocacy, CCANP's charges in both its Motion III and its Withdrawal Motion go beyond the bounds of permissible advocacy and constitute an abuse of the privileges of an advocate. The NRC allows and encourages the airing of issues across the broadest spectrum of differences. Its processes, however, have never been a safe harbor for libel.

F III. Conclusion In its Motion III, CCANP recklessly charged Applicants' counsel and HL&P management officials with unethical and illegal

' conduct, including failure to adhere to Board ordered production, intentional concealment of documents, perjury and subornation of perjury. Given the gravity of the charges and the utter absence of any basis for them in either the actions of Applicants' counsel or the testimony of their witnesses, such charges should be stricken from the record. Except with respect to document production, CCANP's Withdrawal Motion repeats these baseless allegations. CCANP should be admonished that repetition of this behavior will not be tolerated and may result in sanctions. We urge the Board to act decisively, not. only in the interests of protecting the record of this proceeding, but also to discourage any further abuse of the Commission's processes.

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

Washington, D.C. 20036 Finis E. Cowan 3000-One Shell Plaza Houston, Texas 77002 Dated: November 4, 1985

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NEWMAN & HOLTZINGER, P.C. ATTORNEYS FOR HOUSTON LIGHTING 1615 L Street, N.W. & POWER COMPANY, Project Washington, D.C. 20036 Manager of the South Texas Project acting herein on

, behalf of itself and BAKER & BOTTS. the other Applicants, THE CITY 3000 One Shell Plaza OF SAN ANTONIO, TEXAS, acting Houston, Texas 77002 by and through the City Public Service Board of the City of San Antonio, CENTRAL POWER AND LIGHT COMPANY, and CITY OF AUSTIN, TEXAS

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION H NOV.61995b r-bb Doc:cc:c s C7 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD gg%($j[ /8 Cu /

In the Matter of N

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HOUSTON LIGHTING & POWER ) Docket Nos. 50-498 OL COMPANY, ET AL. ) 50-499 OL

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(South Texas Project, Units 1 )

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CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Response To 'CCANP Motion To hithdraw Motion', dated October 29, 1985" have been served on the following individuals and entities by deposit in the-United States mail, first class, postage prepaid, or by arranging for delivery as indicated by asterisk, on this 4th day of November, 1985.

Charles Bechhoefer, Esq.* Brian Berwick, Esq.

Chairman, Administrative Judge Assistant Attorney General Atomic Safety and Licensing For the State of Texas Board Panel Environmental Protection U.S. Nuclear Regulatory Division Commission P.O. Box 12548, Capitol Station Washington,'D.C. 20555 Austin, TX 78711 Dr. James C. Lamb, III** Kim Eastman, Co-coordinator Administrative Judge Barbara A. Miller 313 Woodhaven Road Pat Coy Chapel Hill, NC 27514 Citizens Concerned About Nuclear Power Frederick J. Shon* 5106 Casa Oro Administrative Judge San Antonio, TX 78233 U.S. Nuclear Regulatory Commission Lanny Alan Sinkin*

. Washington, D.C. 20555 3022 Porter St., N.W., #304 Washington, D.C. 20008 Mrs. Peggy Buchorn Executive Director Ray Goldstein, Esq.

Citizens for Equitable Gray, Allison & Becker Utilities, Inc. 1001 Vaughn Building Route 1, Box 1684 807 Brazos Brazoria, TX 77422 Austin, TX 78701-2553

• Hand Delivery

• • Air Courier

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Oreste Russ'Pirfo, Esq.*-

Robert G.-Perlis, Esq.

Office of the Executive Legal Director

'U.S. Nuclear Regulatory Commission

. Washington, D.C. 20555 Atomic Safety and Licensing. Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

. Atomic _ Safety and Licensing Appeal Board DU.S. Nuclear Regulatory Commission zwashington, D.C. 20555 Dccketing and Service Section-Office.of the Secretary U.S. Nuclear Regulatory Commissior Washington, D.C. 20555 m

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