ML19253C746

Reply to Intervenor Tx Pirg 791114 Brief Re Applicant 791109 Motion to Dismiss Intervenor.Intervenor Disregarded NRC 790712 Order Re Identification of Witness to Answer Interrogatories.Certificate of Svc Encl

ML19253C746
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	11/21/1979
From:	Copeland J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19253C739	List: ML19253C737 ML19253C746
References
NUDOCS 7912120067
Download: ML19253C746 (3)

Text

, November 21, 1979

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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

,

REPLY TO TEX PIRG BRIEF IN RESPONSE TO APPLICANT'S MOTION TO DISMISS Applicant has received TexPirg's response to its November 9, 1979 Motion to Dismiss TexPirg. The response is an attempt to divert the Board from the essential fact that its Order of July 12, 1979, has been willfully dis-regarded in contempt of the Board's authority and to the severe prejudice of the Applicant.

The Motion to Dismiss describes the events leading to its filing and shall not be restated here. TexPirg's response is, very simply, that Applicant did not depose the right person. Thus, TexPirg argues that Applicant's attempt to depose Mr. Scott was " unprecedented" and improper and that:

"If Applicant were truly interested in obtaining the most information, they should have sought Mr. Johnson's deposition." 1/

1537 081 1/ TexPirg Response, pp. 10-11.

7912120

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.

This statement stands in stark contrast to the fact that Mr.

Scott signed the affidavit attached to those answers, and swore in the affidavit that he answered the interrogatories. -2/

Applicant did, in fact, attempt to depose Mr. Johnson but he failed to appear on the date shown in the subpoena issued by this Board. Neither Mr. Johnson nor his attorney ever sought to explain this failure to appear nor did TexPirg move to quash the subpoena.-3/

II.

The situation facing the Applicant and, indeed, the challenge to the authority of this Board can be sum-marized as follows:

1. Mr. Doherty answered interrogatories as an officer of TexPirg and was subsequently deposed. TexPirg then disavowed Mr. Doherty's authority to answer questions on deposition about his answers to interrogatories. For this reason, the Board ordered TexPirg to resubmit their answers to interrogatories.

2/ See Applicant's Motion to Dismiss TexPirg, November 9, 1979, Exhibit A, p. 23.

3/ As discussed below, the attempt to depose Mr. Johnson would, in any event, have come to naught.

_2_ 1537 082

2. Mr. Scott " resubmitted"~4/the answers in response to the Board's July 12 Order by signing an affi-davit attached to those answers and swore that he answered the interrogatories, but when asked a question about the answers to TexPirg's First Interrogatories he said he could not answer the question because John Doherty had answered the interrogatories. He also refused to answer questions on grounds of attorney-client privilege.

3. Mr. Scott now argues that Applicant should have directed its questions to Mr. Johnson because he had answered the interrogatory "in its most complete and detailed s./

form...in TexPirg's Supplemental Response..." As the Board knows, Mr. Scott swore he resubmitted TexPirg's answers in response to the July 12 Order. In fact, Mr. Johnson could not possibly be the individual to whom Applicant must turn for further information concerning these interrogatories because as TexPirg admits:

4/ TexPirg's Response (fn. on p. 7) shows that Applicant was correct in asserting that TexPirg did not resubmit the answers

,

as required by the July 12 Order. Mr. Scott simply attached an affidavit to the answers prepared by Mr. Doherty.

5/ The only interrogatories Mr. Johnson answered were Appli-cant's Third Interrogatories, which are in no way related to the July 12 Order. As noted in Applicant's motion, Mr. Scott admitted Mr. Sansom had answered the interrogatories and that Mr. Scott had made a futile attempt to get an affidavit from Mr. Sansom. Contrary to TexPirg's reply on this point, Applicant specifically requested Mr. Scott to get an affidavit from Mr. Sansom in order to avoid the exact problem which has developed.

_3_ 1537 083

"Mr. Johnson was not in TexPIRG at the time those responses had been originally submitted, and therefore, technically, would have violated the Board's order that the affadavit [ sic] contain the name of an individual with knowledge of the responses...." 6/

In sum, Mr. Scott will not, answer questions about the contentions because of an assertion of privilege (and he admits that he could not answer them as true anyway), he asserts Applicant should have deposed Mr. Johnson instead of him because Mr. Johnson provided the responses to the July 12 Order (even though Mr. Scott swore he had) , but he has admitted that Mr. Uehnson could not have answered ques-tions about TexPirg's " resubmitted" answers.

III.

The result of the foregoing situation is that there is no one whom the Applicant can depose, thus frustrat-ing its right of full discovery. The purpose of the July 12 Order was to identify an individual with knowledge of the facts set forth in TexPirg's answers to interrogatories.

Had TexPirg chosen to comply with the July 12 Order in good faith, the Applicant could have proceeded with discovery in 1537 084 6/ TexPirg Response, p. 8.

_4_

the manner contemplated by the NRC's regulations. TexPirg chose to frustrate the purpose of the July 12 Order and it is TexPirg, not Applicant, which should suffer the conse-quences of TexPirg's chosen course of conduct.

Respectfully submitted,

. M OF COUNSEL: J/ Gregor' @ elahd

1. Thomas BMdle, Jr.

BAKER & BOTTS arles G. Thrash, Jr.

3000 One Shell Plaza 3000 One Shell Plaza Houston, Texas 77002 Houston, Texas 77002 LOWENSTEIN, NEWMAN, REIS, Jack R. Newman AXELPAD & 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 HOUSTON LIGHTING & POWER COMPANY l537 085

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 Reply to TexPirg Brief in Response to Applicant's Motion to Dismiss in the above-captioned proceeding were served on postage the following by deposit in the United prepaid, or by hand-delivery this 2/S/ dayStates of mail, 7/nje M, 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 Regulatory 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. 20555 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 1537 086

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Steve Schinki, Esq. Carolina Conn Staff Counsel 1414 Scenic Ridge U.S. Nuclear Regulatory Commission Houston, Texas 77043 Washington, D. C. 20555 Elinore P. Cumings John F. Doherty Route 1, Box 138V 4327 Alconbury Street Rosenberg, Texas 77471 Houston, Texas 77021 Stephen A. Doggett, Esq.

Robert S. Framson P. O. Box 592 Madeline Bass Framson Rosenberg, Texas 77471 4822 Waynesboro Drive Houston, Texas 77035 Robin Griffith 1034 Sally Ann Carro Hinderstein Rosenberg, Texas 77471 8739 Link Terrace Houston, Texas 77025 Leotis Johnston 1407 Scenic Ridge D. Marrack Houston, Texas 77043 420 Mulberry Lane Bellaire, Texas 77401 Rosemary N. Lemmer 11423 Oak Spring Brenda McCorkle Houston, Texas 77043 6140 Darnell Houston, Texas 77074 Kathryn Otto Route 2, Box 62L F. H. Potthoff, III Richmond, Texas 77469 7200 Shady Villa, #110 Houston, Texas.77055 Frances Pavlovic 111 Datonia Wayne E. Rentfro Bellaire, Texas 77401 P. O. Box 1335 Rosenberg, Texas 77471 Charles Pere:

1014 Montrose James M. Scott, Jr. Houston, Texas 77019 8302 Albacore Houston, Texas 77074 William Schuessler 5810 Darnell Bryan L. Baker Houston, Texas 77074 1118 Montrose Houston, Texas 77019 Patricia L. Strelein Route 2, Box 395C J. Morgan Bishop Richmond, Texas 11418 Oak Spring Houston, Texas 77043 Dorothy F. Carrick Box 409, Wagon Rd. Rdf. #1 1537 087 Wallis, Texas 77485

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Glen Van Slyke 1739 Marshall Houston, Texas 77098 Donald D. Weaver P. O. Drawer V Simonton, Texas 77476 Connie Wilson 11427 Oak Spring Houston, Texas 77043

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