ML19338G463

Response in Opposition to Jf Doherty 801013 Motion to Present Direct Testimony on Tx Pirg Contentions.No Good Cause Shown for Untimely Filing.Certificate of Svc Encl

ML19338G463
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	10/24/1980
From:	Copeland J, Newman J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-CP, NUDOCS 8010290394
Download: ML19338G463 (11)

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' October 24, 1980 l

l UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LI' CENSING BOARD In the Matter of S S

HOUSTON LIGHTING & POWER COMPANY S Docket No. 50-466 (Allens Creek Nuclear Generating O Station, Unit 1) S D m ,

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HOUSTON LIGHTING & POWER COMPANY'S

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L c7, ANSWER TO DOHERTY MOTION TO PRESENT 7, Q.fEa, y g; 9g A 3)

DIRECT TESTIMONY ON TEXPIRG CONTENTIONS -l %cDff '

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On October 13, 1980, Intervenor Doherty filed a motion requestirg that he be permitted to present direct testimony on thirteen contentions which have been admitted 1

at the request of other parties to this proceeding. 1 Twelve out of the thirteen contentions were TexPirg conten-tions.1! The other was a contention admitted on behalf of the various clients of Mr. Dogett. !

i 1/ It is not clear why TexPirg Additional Contention 41 is on this list. On May 23, 1980, the Board issued an order

( designating Mr. Doherty as the lead party on this contention.

2_/ Mr. Doherty has filed a separate motion to include his own i contention on the health effects of low level radiation releases. Applicant will address that motion in a separate response. Mr. Doherty's effort to take over as the lead party on that contention is therefore premature. Applicant's response will thus focus only on the TexPirg contentions.

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Under the Commission's rules of practice an intervening party is not perm!tted to file direct affirmative testimony in support of another party's contentions.

Northern States Power Company i (Prairie Island, Units 1 and 2), ALAB-244, 8 AEC 857, 869, n.17(1974),

reconsideration denied, ALAB-252, 8 AEC 1175, aff'd, 1 NRC 1 (1975); Project Management Corporation (Clinch River Breeder Reactor), ALAB-354, 4 NRC 383, 392 (1976). In

' order to obtain this right a party must amend his or her petition to intervene and address the factors which govern the admissibility of late-filed contentions. 10 CFR S2.714 (a) . The Licensing Board so notified the parties at the Prehearing Conference held on August 13, 1980 (Tr. 1725). Mr. Doherty has not satisfied the requirements

• of 10 CFR S2.714 (a) and his request should therefore be denied. /

II.

Good Cause:

Mr.

Doherty asserts that the reason he did not file his request earlier is that he was unsure whether it would be necessary to do so.

Mr. Doherty now believes, based upon his l

-*/ Initially, it is important to note that Mr. Doherty does not represent that the other intervening parties are agreeable The Board has made it clear that parties consolidated on ato .

contention are not to submit duplicative direct testimon Apparently, Mr. Doherty is not challenging this ruling. y.

Instead to he evidence.

present is arguing that he is more capable than TexPirg However, the Board has been provided no groundr for permitting Mr. Doherty to take over another party's approval.contentions at this late date, without that party's

w review of the fruits of discovery, that " relevant items" are likely to be missed in TexPirg's direct testimony. This non- '

specific assertion provides the Board with absolutely no information upon which to base a determination as to good cause. Mr.

Doherty does not set forth any particulars as to the " relevant items" that TexPirg's direct testimony will not caver. Furthermore, in light of the fact that TexPirg has not yet stated whom it intends to call as an expert witness on many of these contentions Applicant finds it difficult to understand the basis for Mr. Doherty's assertion that TexPirg's testimony will not cover relevant areas.

It should be remembered that Mr. Doherty is here requesting the Board to admit late-filed contentions in his behalf so that he may file direct testimony. To the extent that he is citing the insufficiency of TexPirg's interpretation of their contentions as the basis for an assertion of good cause, Mr. Doherty should be required to set forth "with particularity" the precise concerns that he believes will not be addressed by the admitted parties, so that there is some substance upon which the Board may base a ruling under S2.714 (a) .

Mr. Doherty's assertion of good cause as to the conten-tions numbered 6-13 in his motion, should be rejected by the Board for an additional reason. As Mr. Doherty admits, he authored these contentions several months ago, in his capacity as an employee of TexPrig. If Mr. Doherty believed I

\ that he had the knowledge and expertise necessary to support l

l his own contentions he should have timely so informed the Board .

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Instead he waited until all discovery had ended.

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The Board will recall that during his employment at TexPirg Mr. Doherty represented that he was authorized to speak for that organization, and allowed himself to be deposed in order to provide information alleged to support these contentions.

Subsequently, TexPirg disavowed Mr. Doherty's authority even though Doherty had vritten the contentionE Applicant argued

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that TexPirg's disavowal constituted an  : cempt to thwart Applicant's rights to full discovery, and later renewed its I complaint as responsibility for and knowledge about these con-tentions appeared again to shift from TexPirg's Mr. Scott to l Mr. Johnson.

As a result of that controversy, the Board directed TexPirg's counsel to designate the persons at TexPirg who had substantive knowledge as to each of TexPirg's contentions so that the Applicant and Staff could engage in meaningful discovery.2./

TexPirg complied with that order and with respect to the con-tentions at it: sue here, designated Mr. Clarence Johnson as the TexPirg emplo3ee with substantive knowledge as to TexPirg's contentions. In relia 1ce upon that representation Applicant took several depositiors of Mr. Johnson and examined the basis for each of TexPirg's contentions solely through Mr. Johnson.

Applicant has relied upon those depositions, and the knowledge gained therein, in both preparing its direct case and in responding to motions for summary disposition.

Now after having remained silent for these many months, Mr. Doherty has come forward to assert that TexPirg, through 3/ Order of December 4, 1970 at p. 5.

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Mr. Johnson, has not adequately supported these contentions .-4/ i After proceeding full circle {

(Doherty to Scott to Johnson to Doherty), Mr. Doherty asks the Board to substantially n egate all of Applicant's discovery and allow him to pursue these contentions on his own behalf.

The Board should deny this outrageous attempt to undermine its earlier resolution of the dispute as to whether Mr. Doherty was the individual with full knowledge of TexPi rg's contentions.

Other Means To Protect Interests:

Mr.

Doherty has also failed to sney that there are no other means available whereby his interests will be protected E! He .

claims that TexPirg will not be able to adequately support these contentions because it lacks the financial resources to do so and because of the " lack of knowledge on the part of its Interrogat or."

On the question of financial resources, Applicant finds it difficult to perceive how Mr.

Doherty could use another party's scarcity of resources to suoport an attempt to broaden his parti-cipation since Mr. Doherty himself has pleaded financial diffi-culty throughout the course of this proceeding.

As to the second point, Applicant assumes that TexPirg's 4/

What this apparently meuns is that Mr. Doherty is di spleased with i.e. the thatanswers provided by Mr. Johnson on deposition -

his answ6rs are favorable to the Apr '.icant.

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Applicant believes that through his long silence Mr Doherty .

has waived any legitimate interest he may have on these con tentions over and above that which he earlier passed on t o TexPirg's acknowledged representative, Mr. Johnson .

" interrogator" is Mr. Scott.

It is not clear how Mr. Scott's capabilities as an interrogator are relevant to Mr. Doherty's need to present direct written testimony on these questions, nor is it clear whether Mr. Doherty understands the distinction between presenting direct testimony and engaging in cross-examinatien of another party'c expert witness.5/ Mr. Scott has not been desig-nated as a witness in this proceeding, and thus will not be pre-senting any direct testimony. Moreover, Mr. Doherty has stated that he has not retained any expert witnesses to testify on his own coatentions (August 13, Prehearing Conference, Tr.1726-27) and does not now state that he has any such witnesses for the 13 con-tentions which are the subject of the instant motion. Mr. Doherty has also admitted in deposition that he is not an expert on the subject of his own admitted contentions and nothing in his back-ground provides a basis for supposing that he has special expertise on any of these 13 contentions.

Developing a Sound Record:

The simple fact that Mr. Doherty wrote the contentions while employed by TexPirg does not demonstrate that his parti-cipation would be reasonably expected to assist in developing a sound record. Mr. Doherty does not make any representation as to the type of evidence he would be able to present which could 6/ Mr. Doherty may believe that he will be a more competent cross-examiner than Mr. Scott, hcaever, that question is irrelevant to his motion. Mr. Doherty's right to engage in cross-examination on these issues is not disputed.

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. l not be presented by TexPirg. l As stated earlier, it must be pre-sumed that Mr. Doherty has no expert witnesses to call on these contentions.

If he did, he should have so informed the Board.

Representation by Existing Parties:

Mr.

Uoherty's argument that other parties are too heavily burdened is tr.uly extraordinary.

No other intervenor has as many contentions as Mr.

Doherty and he is still attempting to admit new ones.1/ If Mr.

Doherty were to prevail upon his motion, the result would be to significantly increase his burden of pre-senting evidence on his numerous contentions that will be dealt with in the health and safety phase of the proceeding. Mr.

Doherty has complained to the Board on several occasions about the burden he is under in handling the numerous contentions for which he is responsible, and he has already requested extensions of time within which to carry out his responsibilities during the prehearing process.

He has also appealed to the Board for a pro-longed schedule due to his other commitments. These many com-plaints can only be expected to increase if his motion is granted .

Delay:

The Appeal Board has noted on several occasions that the delay factor is very significant in striking a balance on the ad-missibi.i.ty of a late petition.

Long Island Lighting Company

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On October 13, Mr. Doherty filed a motion to add Contention 50 dealing with cracking in jet pumps.

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(Jamesport Station), ALAB-292, 2 NRC 631, 650-51 (1975); Project Management Corporation (Clinch River Breeder Reactor), ALAB-354, 4 NRC 383, 394-95 (1976).

The later in the proceeding the request is made, the greater the potential for delay. Detroit Edison Corporation (Greenwood Energy Center), ALAB-476, 7 NRC 759, 762 (1978).

If Mr.

'erty is successful in having these contentions admitted on his own behalf, Applicant has no choice but to attempt to undertake its full rights of discovery against Mr Doherty.

This would inject substantial celay into these proceedings at this time, and must be considered as an important factor weighing against the granting of Mr. Doherty's motion.

Vircinia Electric and Power Co.

(North Anna Station) , ALAB-289, 2 NRC 395, 400 (1975).

Mr. Doherty's attempt te distinguish between delay and " useless" delay is entirely without support in NRC jurisprudence.

Further-more, his argument assumes that he has the intention of presenting direct testimony through expert witnesses which, as stated above ,

is contrary to his prior representations to this Board .

III.

For the foregoing reasons, Mr.'Doherty has failed to estab-lieh good cause for his untimely attempt to raise the contentions in question on his own behalf. Mr.

Doherty has known about these contentions for many months and he can have absolutely no good cause for attempting to raise them in his own behalf at this

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time.

None of the relevant factors weigh in favor of permitting Mr. Doherty to file direct testimony. Mr. Doherty has totally failed to satisfy the standards of Section 2.714 and his motion should be denied.

Respectfully submitted, OF COUNSEL: d6449 d J.; Gregopy 06peLdnd BAKER & BOTTS C/ Thods Biddle, Jr.

3000 One Shell Plaza Darrell Hancock Houston, Texas 77002 3000 One Shell Plaza Houston, Texas 77002 LOWENSTEIN, NEWMAN, REIS, Jack R. Newman AXELRAD & TOLL 1025 Connecticut Ave., N.W. Robert H. Culp Washington, D.C. 20036 David Raskin 1025 Connecticut Ave., N.W.

Washington, D.C. 20036 ATTORNEYS FOR APPLICANT HOUSTON LIGHTING & POWER COMPANY

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UNITED STATES OF AMERICA NI! CLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i

In the Matter of )

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HOUSTON LIGHTING & POWER COMPANY ) Docket No. 50-466,

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(Allens Creek Nuclear Generating )

Station, Unit 1)

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CERTIFICATE OF SERVICE I hereby certify that copies of Houston Lighting &

Power Company's Answer to Doherty Motion to Present Direct Testimony on TexPirg Contentions, were served on the following by deposit hand in the United States mail, postage prepaid, or by delivery, this 24th day of October, 1980:

B Sheldon J. Wolfe, Esq., Chairman Atomic Safety and Licensing Susan Plettman, Esq.

Board Panel David Preister, Esq.

U.S. Nuclear Regulatory Commission State Attorney General's Office Washington, DC 20555 P.O. Box 12548 Austin, Texas 78711 Dr. E. Leonard Cheatum Route 3, Box 350A Watkinsville, Georgia 30677 Hon. Charles J. Dusek Mayor, City of Wallis Mr. Gustave A. Linenberger P. O. Box 312 Atomic Safety and Licensing Wallis, Texas 77485 Board Panel U.S. Nuclear Regulatory Commission Hon. Leroy H. Grebe Washington, DC 20555 County Judge, Austin County P. O. Box 99

' Chase R. Stephets Bellville, Texas 77418 Docketing and Se rvice Section Office of the Se retary of Atomic Safety and Licensing the Commission Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Pegulatory Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555

e 9 a Richard Black, Esq. James M. Scott, Jr.

U.S. Nuclear Regulatory 13935 Ivy Mount Commission Sugar Land, Texas 77478 Washington, DC 20555 William Schuessler John F. Doherty 5810 Darnell Houston, Texas 77074 4327 Alconbury Street Houston, Texas 77021 Stephen A. Doggett, Esq.

P. O. Box 592

, Rosenberg, Texas 77471 Att: Clarence. Johnson Bryan L. Baker Executive Director 1923 Hawthorne Box 237 U.S. Hous ton, Texas University of Houston 77098 Houston, Texas 7704 J. Morgan Bishop Carro Hinderstein Margaret Bishop 609 Fannin Street 11418 Oak Spring Suite 521 Houston, Texas 77043 Houston, Texas 77002 W. Matthew Perrenod D. Marrack 4070 Merrick 420 Mulberry Lane Houston, Texas 77024 Bellaire, Texas 77401 Brenda McCorkle 6140 Darnell Houston, Texas 77074 F. H. Potthoff, III 7200 Shady Villa, #110 Houston, Texas 77080 Wayne E. Rentfro P. O. Box 1335 Rosenberg, Texas 77471