ML19263E275

Applicant'S Response in Opposition to Tx Pirg Request for Entry Upon Land.Request Fails to Set Forth & Describe Items & Lands to Be Inspected W/Reasonable Particularity. Certificate of Svc Encl

ML19263E275
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	04/30/1979
From:	Copeland J, Newman J, Thrash C BAKER & BOTTS, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:
References
NUDOCS 7906080052
Download: ML19263E275 (8)

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UNITED STATES OF AMERICA

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NUCLEAR REGULATORY COMMISSION 9% , >lg,jll

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                                                               -}h      CTU ~ Y"   2 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD        t{}            W
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HOUSTON LIGHTING & POWER COMPANY S Docket No. 50-466 S (Allens Creek Nuclear Generating S Station, Unit 1) S APPLICANT'S RESPONSE TO TEXPIRG'S REQUEST FOR ENTRY UPON LAND In response to the Request for Entry Upon Land by Texas Public Interest Research Group, Inc. (TexPirg), Houston Lighting & Power Company (Applicant) files the following objections: I. TexPirg's Request for Entry Upon Land fails to set forth and describe the items or lands to be inspected with

     " reasonable particularity" as required by S2.714(c) of the Commission's Rules of Practice. The request states that "all parts of the sites" relating to certain contentions will be visited "such as likely reactor sites, the ' Bluff area', Wallis and Sealy sewer plants and their outfalls into the cooling lake, and the barge unloading site."    The Request also states that "those parts of the South Texas plant that relate to safety contentions...[are to be examined] closely."    This type of
     " wholesale" discovery request has been described as "overbroad" under Rule 34 of the Federal Rules of Civil Procedure on which 2357 188 7 906 0 801Q$~    f R4 i

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the Commission's rules are based. United States v. International Business Machines Corporation, 72 F.R.D. 78, 82-85 (S.D.N.Y. 1976). Detweiler Bros., Inc. v. John Graham & Co., 412 F.Supp. 416 (E.D. Wash. 1976). Paiewonsky v. Paiewonsky, 50 F.R.D. 379 (Virg. Isl. D.C. 1970). It has also been found that when descriptions are broad, vague and ambiguous, the relevancy of the request is impossible to judge. Branerton Corp. v. Ce7missioner of Internal Revenue, 20 F.R. Serv. 2d 690, 64 T.Le No. 16 (U.S. Tax Court 1975), Biliske v. American Live Stock Insurance Co., 73 F.R.D. 124 (W.D. Okla. 1977). The Commission's relevancy requirement is even more strict than that of the Federal Rules. Section 2.740 (b) (1) of the Commission's Rules of Practice requires that requests be re-lated to matters in controversy as identified in the prehearing conference order. TexPirg asserts that it should "have the freedom to see and visit all parts of the sites that relate to the contentions." However, TexPirg has failed to specifically describe the areas it wishes to see and has failed to state how those specific areas are related to issues in the prehearing order. Accordingly, the motion is deficient on its face. II. The Request is also objectionable on the grounds that the proposed manner of inspection is not reasonable. TexPirg asks that en unspecified number of people be allowed to make the inspection, including any or all unnamed " Tex PIRG members, their attorney, and any witnesses" (which TexPirg admits are as of yet unnamed) and indeed "all parties." 2357 189

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. . TexPirg cites no reason or need for allowing numerous un-named individuals to visit the sites. The Request indicates that TexPirg has no real need or purpose in making this inspection. TexPirg's field day approach to the inspection of Applicant's property is not contemplated under the Commis-sion's rules or the Federal Rules of Civil Procedure. Under Federal Rule 34, on site inspections have been strictly limited as to the number of individuals allowed on the property, and the credentials of those making the inspec-tion. Morales v. Turman, 59 F.R.D. 157 (E.D. Tex. 1972); Cox v. E. I. DuPont de Nemours and Company, 38 F.R.D. 396 (South Carolina D.C. 1965); U.S. v. National Steel Corporation, 26 F.R.D. 603 (S.D. Tex. 1960); Martin v. Reynolds Metals Corp., 297 F.2d 49 (9th Cir. 1961). Clearly, the inspection would be preinature and a complete waste of time since TexPirg has not retained a single expert witness whose testimony would be aided by the requested inspection. Without limitation as to numbers and credentials, an inspection would be irrelevant since the observers would not be competent to assess what they see and, therefore, the visit would not lead to admissible e'. ~.d e n c e . III. Applicant specifically objects to the request that it " guide" the inspection. This request does not comply with either S2.741 of the Commission's rules nor the Federal Rules. The request to be " guided" is no different than a request that Applicant be ordered to make assessments for 2357 190 __

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TexPirg. Applicant cannot be required to make such assess-ment, Sladen v. Girltown, 425 F.2d 24 (7th Cir. 1970). Sperberg v. Firestone Tire & Rubber Co., 61 F.R.D. 80 (N.D. Ohio 1973). Similarly, Applicant cannot be forced to lead a tour of ite facilities. Applicant's only burden is to provide access. TexPirg must then interpret what it sees and cannot ask Applicant to give over its expertise on those matters. TexPirg's request for a guided tour further indi-cates that the entire request is irrelevant, without purpose, and unnecessary. Unless TexPirg's representatives are capable of making their own assessments of what is to be seen, TexPirg cannot hcpe to come away from the tour with anything tending to lead to admissible evidence.-1/ IV. Applicant specifically objects to the request for inspection of the planned barge unloading facility and the Wallis and Sealy sewer plants and their outfalls. Under S2. 741(a) (2) of the Commission's Rules of Practice, only sites in possession or control of the party are open to 1/ If Applicant is ordered to provide access to TexPirg, Applicant would, of course, expect to accompany TexPirg on any entry on its property, but should not be ex-pected to guide a tour group for individuals who know nothing about what they see. 2357 191

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inspection. Federal Rule 34 has the same limitation. The barge unloading area has not been acquired by the Applicant. The sewer plants and their outfalls are not owned by Applicant. and will never be. Applicant does not possess and has no control over these areas. The request for entry is therefore overbroad and cannot be complied with. La Chemise Lacoste

v. Alligator Company, Inc., 60 F.R.D. 164, 171 (Del. D.C.

1973); Folding Carton Antitrust Litigation, 76 F.R.D. 420 (N.D. Ill. 1977).

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V. Applicant specifically objects to the request that the site of the South Texas Nuclear Project be inspected. The issues related to TexPirg's request for inspection of the South Texas plant (i.e. " safety contentions such as the

   ' buckling of the containment', thickness of the concrete shield, and reactor vessel") are at issue in this proceed-ing, if at all, only with respect to the Allens Creek pro-ject. The PWR design of the South Texas Project, particularly the containment, is much different from that of the BWR design of Allens Creek, and, therefore, inspecting these features of the South Texas plant would be irrelevant, would not tend to lead to admissible evidence, and would be outside the scope of the contentions in issue, thus violat-ing S2. 74 0 (b) (1) of the Commission's rules.

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e VI. For each of the foregoing reasons, TexPirg's motion should be denied. Applicant suggests that the denial can be without prejudice to a later request to be filed when and if TexPirg retains an expert wintess whose testimony is to cover site specific contentions. In such a motion, TexPirg must set forth the name of the expert witness, the subject matter of his testimony, the specific areas of the site to be examined and the information sought by examination of such areas. Respectfully submitted, OF COUNSEL: . V e J Grego g Cypeland ' BAKER & BOTTS arles G. TMrash 3000 One Shell Plaza 000 One Shell Plaza Houston, Texas 77002 souston, Texas 77002 LOWENSTEIN, NEWMAN, REIS, Jack R. Newman AXELRAD & TOLL Robert H. Culp 1025 Connecticut Ave., N.W. 1025 Connecticut Ave., N.W. Washington, D. C. 20036 Washington, D. C. 20036 Attorneys for Applicant h0USTON LIGHTING & POWER COMPANY 2357 193

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of S S HOUSTON LIGHTING & POWER COMPANY S Docket No. 50-466 S (Allens Creek Nuclear Generating S Station, Unit 1) S CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Applicant's Response to TexPirg's Request for Entry Upon Land in the above-captioned proceeding were served on the following by deposit in the United States mail, p stag. prepaid, or by hand-delivery this 3dyT day of , 1979. / ( Sheldon J. Wolfe, Esq., Chairman Richard Lowerre, Esq. Atomic Safety and Licensing Assistant Attorney General Board Panel for the State of Texas U.S. Nuclear Regulatory Commission P. O. Box 12548 Washington, D. C. 20555 Capitol Station Austin, Texas 78711 Dr. E. Leonard Cheatum Route 3, Box 350A Hon. Charles J. Dusek Watkinsville, Georgia 30677 Mayor, City of Wallis P. O. Box 312 Mr. Gustave A. Linenberger Wallis, Texas 77485 Atomic Safety and Licensing Board Panel Hon. Leroy H. Grebe U.S. Nuclear Regulatcry Commission County Judge, Austin County Washington, D. C. 20555 P. O. Box 99 Bellville, Texas 77418 Chase R. Stephens Docketing and Service Section Atomic Safety and Licensing Office of the Secretary of the Appeal Board Commission U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D. C. 20535 Washington, D. C. 20555 R. Gordon Gooch, Esq. Atomic Safety and Licensing Baker & Botts Board Panel 1701 Pennsylvania Avenue, N. W. U.S. Nuclear Regulatory Washington, D. C. 20006 Commission Washington, D. C. 20555 2357 l94

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. .. Steve Schinki, Esq. Staff Counsel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 John F. Doherty

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4438 1/2 Leeland Houston, Texas 77023 Madeline Bass Framson 4822 Waynesboro Drive Houston, Texas 77035 Robert S. Framson 4822 Waynesboro Drive Houston, Texas 77035 Carro Hinderstein 8739 Link Terrace Houston, Texas 77025 D. Marrack 420 Mulberry Lane Bellaire, Texas 77401 Brenda McCorkle 6140 Darnell Houston, Texas 77074 F. H. Potthoff, III 1814 Pine Village Houston, Texas 77080 Wayne E. Rentfro P. O. Box 1335 Rosenberg, Texas 77471 James M. Scott, Jr. 8302 Albacore Houston, Texas 77074 bfMcur bebnel-J.[Grego C peland 2357 i95

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