ML20003C316

Requests to ASLB for Interlocutory Appeal & Certification of Questions & to ASLAP for Direct Certification of Question Re Ability of Intervenors to cross-examine Witnesses. Certificate of Svc Encl

ML20003C316
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	02/17/1981
From:	Jeffrey Scott TEXAS PUBLIC INTEREST RESEARCH GROUP
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP), Atomic Safety and Licensing Board Panel
References
NUDOCS 8102270696
Download: ML20003C316 (6)

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ATOMIC SAFETY AND LICENSING 3 CARD and the 8\ ,Uw<. -(

s ATOMIC SAFETY AND LICENSING APPEAL 30ARD ' Q /'

In the Matter of X

.v.

Houston Li6hting and Power Co. X Docket No. 50-466 s y

( Allens Creek, Unit 1) 2

TEX PIRG'S MOTIONS TO

A. LICE'! SING 50ARD FOR:

1. Reconsideration of certain actions taken during week o f Jan.18 to 24 which restricted right o f intervenors to cross-examine.

2. Interlocutory appeal per 2.730(f), and

', 3. Certification of Questions per 2.718(i)

• and

3. APPEAL EOlt2D FOR:

1. Directed Certification o f Questions related to restrictions on

Croas-examination

2. Appointment o f a new Licensing Board.

1 BACKGROUND Ever since Mr. Samuel VI. Jensch :as replaced as chairman o f the I

Licensing Board, this board has attempted to restrict intervenors in this proceeding. In ALAB_333 the Appeal Board held that the Licensing I Eoard had unduly restricted intervenors' contentions. In ALA3-539,this decision was upheld Still the Board refused to republish the Notice of t

Intervention Procedures until the Appeal Board in ALAB-544 pointed out to the Board and Applicant that they might be making a mistake. Still tue Board refused to publish a unrestricted notice , but recuirec citizens l to state in public that the only reason that they had not askea to I intervene earlier was that they had been stopped by the prior restrictions.

One intervenor actually cried when asked why che had not asked to intervene earlier. Of the over .100 people who asked to intervene less than 10% were allowed to take part.

Now, after the past week , it is clear that even the parties are not going to be given a fair chance to fully participate in the hearings.

I 1 First the Board has required that all uarties be present at a times .

. in the hearir es or lose their rign]es,b

. If 2 r73t ]at))one J01c' 2.!o) 2 das no 't }requirec arc'1 2 Jy-)1}f J Th Gy f,o natlVione Spt-NRC D Nand Applicant witnesses be present at all times or even

- until. a carty has finished cro ss-examination. It is totally iryo ssi ble a rd ? 2 Ay- )t:S ', 9- ' ^

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for most intervenors to miss several months o f work to sit in the hearings on a full time basis. The Board specifically refused to hold g y some night and week-end sessions to allow those intervenors moro input.

2, The Board refuses to let intervenors arrange between themselves so that one intervenor can do their cross-examination by another intervenor stopping their cross-examination then starting up again at a later time.

Most of the intervenors will not be able to sit for hours or even days .

cwaiting their chanco to ask a few questions. T8 2/o l)IW-%

3. The Board does rA 2not 71/ allow

-2 9,yYcomplete cross ,rfan)inanhn 4 v 4o; 7thebyscope TNinstead restricting of the questions to the pitoral alrect testimony,/

contention. They also restrict the scope o f the contention to the literal basis mentioned in the contention. For example in the Tex pIRG cooling lake contentions, 2 and 4, Tcx PIRG was not allowed to ask about pest-icides in the lake just becauso that was not one of the bases used in the original contention to show that the lake would not be good for recreation.

4. The Board refused to allow complete anc through c;coss-examination even though for most intervenors that is their only :ay to participate since they could not afford expensive " expert" witnesses. This refusal took several forms.

(a) The Board demandgd that the Cross-examiner tell the witness what his goal was. [htoaby rhentseffectivecrossbecausethe witness can answer in such a way as to prevent the desired result.

Tex PIRG offered to tell the Board what the goal of a line o f quesNons was so long as it was nct told to the witness. The Board refused this o f f er. .

(b) The Board often ruled that if someone had cross-examined any witness on a general subject that noone else could cross on that subject even though they would have asked different or more detailed questions.

} rma ' at Tex pIRG continue cross-(c) The Board W refused, ta J'Tfc-vo d Th Dr Sen Ar- tiron- even though its attorney examination (78 3cv)l}icht

>&mo s in and 47FfD"l9f i yo told the board that it had over 70 wr;tten questions that were not

" argumentative, repetitious, or cumulative". It is clear that the Board was . unhappy with the numerous admissions and impeachment o f so called experts that Tex PIRG8 s attorney had managed. The Board and witnesses did not expect to be cross-examined by an attorney with a M3 in nuclear 2.

physics, and ES in Physics, Chemistry, and Math who had read the J

complete ER and FIS. Hu=erous court decision nave held that c ro ss-examination may be full and exhaustive and cust not be unculy limited I or resthicted. 360 F2 569,577; 350 F, 231; 130 F 2 330; 12S F, 6C4; - - -

164 F, 641; 55 7 7 139;55 F2 844; 24 7 2 153; 232 F 662; Also see 2.743(a) .

> (d) The Board often " pressured" intervenors to complete their cross in a short time , like thirty minutes or force intervenors to detail i

what their questions would be.

5. In several cases the Board totally prevented cross-examination.

1 (a) on Friday, Jan. 23,1981, the Eocrd refused to let Mr. Rentfra i

i conduct even limited cross-examination. They claimed that the Prairie I

d from t Island case, 8 URC 458; 8 NRC 657; S HRC 1175 prever:)c%41'nyone.4 TA i 174 Hlo ?

I

> cross examination except on thair own contentions. In fact the cdse J

says exactly the opposite, ie that any party can cross-examine all other party witnesses. The only reason that the pro se intervonor in i that caso did not got to cross examine is that when asked by the appeal Board what he wished to cross on , he said his contentions that had not been admitted into the proceeding. Therefore the Licensing board errc" i was harmless. Still the appeal Ecard allowed him to cross examine on i

the remand of the casc. Chere can be no valic clain that Mr Rentfro had no interest in the contentions that he asked to cross on. He lives 1 close to the plant, owns land very close to the plant, was one of only two intervenors who took part in the hearings of 1975, has transmiss-ion lines planned to pass over his land that would not do so if the plant is either not built or moved to another location, and by helping with the cooling lake contentions would be helping to get the plant coved to another location.

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case by. case basis, they will be able to prevent nos if ne: all intervonors frc= cross-examination except on their own contentions.

1 i For example Mr. Baker's only contention is related to financial qual-1

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S.bhbo# ) _, . ugh khe lunch break, and dismissing the witnesses,T Schlicht and Tischler, by dismissing early to catch a plane, the three intervenors who appeared for the afternoon session (Tex ?IRG, McCo-kle, T/f '1H I a .a 4 v>..o ,3 i,s. ;j .

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64.-n'ened titnesses. This is another exa:ple of 3 card action whe e

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4 pt{ 9]yc. - i]F i ; )3 V I5 7l (d) Also on Friday, Jan. 23,1981,A the Ecard allowed both the Applicant and URC Staff to introduce into evidence their ZR Supplement

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and Final Supplenent to FES even though the record showed that Tex I

PIRG had said that it objected to their introduction unless a showing was made as to what parts of each were done by who and those persons were made available for cross examinati N 7 4 4-n ag 49")o those 'narts that related J

to any of the accepted contentions. Ra her than introduce the documents when Tex PIRG's attorney was present they waited until no intervenor i 1

attorneys woro present then introduced them without objection then i

promptly dismissed the witnesses so they could not be cross-examined.

The Board was fully aware o f w..at they were doing and how it would hurt the intervonors case yet they allowed it to happen.

, 6. On several occasions the Board, especially Dr. Linenberger, would stop Tex PIRG's cross-examination at critical times when a witness had just made statements that helped intervenors case or was just about to I

dc so. The Board e/ould then ask its own question in such a way that the witness could see that he had damaged Applicants case. The witness then would either change or " clarify" its answer to reduce the damage caused.

In summary, for the reasons mentioned above, and many others that can be seen if the transcript for the hearing to date is read, Tex P!RG believes that reverseable error that is harmful to it and other i' intervenors has already occured in this case such that any final decision by this Board to grant the construction permit will be overturned.

Rather than waste about one year of time in hearings before a final decision is made which will almost certainly be overturned based on errors already made Licensing Board should promptly either correct its errors (let Tex PIRG continue its cross of the three witnesses dismissed, let Rentfro, McCorkle, Bishop etc cross, make those who prepared the 2R Supp and FSFES available for cross, etc) or refer its ruling to the Appeal hoard so- they can promptly set the standards to be used in this i

proceeding. Even if the Board corrects its errors, Tex PIRG is very doubtful that it can get a fair, impartial decision from this Board because of the obvious friction- and tension between the Board and Tex l' -PIRG's attornay (no matter who's fault it is).It is therefore with great reluctance that Tex PIRG asks that a new Board hear this case.

4.

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Ylith the foregoing background as basis , Tex pIRG MOVIS that:

1 The Licensing Board:

.l (a) Tex PIRG be allowed to continue to cross Dr Schlicht and CA, 5 441 Dr. Armstrong until it has finished or that a valid limit based on 2.756 can be made.

.; (b) Tex PIRG be allowed to cross-examine Dr. Tischler who was I

i-dismissed early by impr,operly preventing Mr. Rentfro from cross and working through the lunch break elithout notice to the parties. Three parties were there to cross him before 1:30 pm which is the earliest that the Board had ever returned< from lunch.

(c) Allow Tex PIRG to do its cross of the above three witnesses j and all other NRC Staff and Applicant witnesses before it presents its witness Dr. Marrack for cross."litnesses means those who presented direct testimony on the contentions that Dr Marrack supplied direct l testimony for. It includes those that prepared the NRC FSFZ3 and applicants ER Supplement.

(d) Allow all other parties to cross examine all witnesses if they 3

can so so without causing the panel or witness if not part of a panel 4

1 to be delayed for over 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> without anyone to cross them, 1 (e) Allow Rentfro to cross-examine all witnesses that any other l party is allowed to cross-examine.

( f) Allow 31 shop to finish cross-examination of Dr. Armstrong.

(g) Allow Bishop and McCorkle to cross all three applicant witnesses.

which were dismissed early by working through lunch and improperly preventing the cross by Rentfro.

(h) Allow all parties to cross-examine all witnesses on all issues relevant to the contention and their general subject matter of direct testimony as opposed to liciting it to the exact bases listed to supply the one basis needed for a valid contention. For example

Tex PIRG- should be allowed to cross on pesticides because they can vouse health hazards directly and through their heavy =etal contributions.

(1)' All intervenors to schedule among themselves so that any party can stop its cross of a witness to allow another party to do

'their cross o f even another witness present, then allow the original party to continue their cross-examination.

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(j) ' To schedule at least one evening and one neckend session for each week, and to allow at least one full seekday to be free o f i

hearings. This is to allow participation by those that have full time

] jobs, and to allow others to get some other work done while the i courts and businesses are open.

(k) Strike the introduction into evidence the Applicants ER anc ER Supplement as well as the URC Staff FES and Supplements until

", a w'. tness has been identified that prepared each part of each document f and that person is made available for cross examination by all parcies.

Otherwise most of the record is gross hearsay and the due process right of cross-examination is denied.

2. The Appeal Eoard:

J (a) Promptly road the complete record of the hearing to date I

' (one neck) to see for itself the unfairness to intervenors,

,, (b) Direct Cortification of the following questions:

I (i) Can the Licensing Board stop cross-examination even though 2.757 has not been violated?

(ii) Did the Licensing Board improperly stop Tex PIRG from

-cross-exanination?

(iii) Uas it proper to prevent Mr. Rentfro from cross-exat-J ination except as to his own contentions?

(iv) 'llas it proper to prevent cross-examination by preventing Mr Rentfro's cross, changing the hearing schedule without 4

notice, and dismissing the witnesses bafore the carties got to the hearing before the normal afternoon session was scheduled to start?

(v) Is it proper to allow the introduction into evidence documents without making available those that prepared it for cross-exanination?

(vi) Does the record already show reverseabic error such that detriment to the public interest and unusual delay and expenso -could be saved by promptly changing 30ards and/or 'having the appeal board provide firm direction to the licensing board so that the pasc errors are i

promptly corrected and others of the same kind do not occur?

!.! (vii) Should the present hearings be delayed until the above questions are answered by the appeal Board?

R pectfully submitted, m hyt)n, ,k&k 3 , games dorgan' Jco tt, Jr.

Attorney for Tex PIRG

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The attached Motion was mailed to all parties (or hand celivered) and others required on Gan. 2^,G5;.

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