ML19316B127

Response in Opposition to Applicant Motion to Compel Addl Documents from Tx Pirg & C Hinderstein.Financial Terms Between Intervenors & Witnesses Are Proprietary in Nature. Tx Pirg Does Not Possess City Water Supply Studies

ML19316B127
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	05/31/1980
From:	Jeffrey Scott TEXAS PUBLIC INTEREST RESEARCH GROUP
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8006110346
Download: ML19316B127 (5)

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I UNITED STATES OF AMERICA Huclear Regulatory Commission Atomic Safety and Licensing Board In the Matter of HOUSTON LIGHTING & POWER CO. Docket 50-466

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(Allens Creek Unit 1)

TEXPIRG'S RESPONSE TO APPLICANT'S REQUEST FOR FURTHER BOARD ACTION, Re: MOTION TO COMPEL 1/

TexPIRG is in receipt of a letter from Applicant Houston Lighting & Power Company's (HL&P) counsel to the Board in the above-styled proceeding, which apparently modifies the nature of the HL&P Motion to Compel Discovery of documents from TexPIRG and Hinderstein witness Saxion. TexPIRG herein requests leave to respond to that letter / motion. As admittedaby Applicant, TexPIRG and Hinderstein have supplied HL&P with copies of Mr..

Saxion's substantial number of workpapers and supporting documenta-tion. HL&P,'s houever, continues to request a motion to compel against certain specified document s. TexPIRG* seeks denial of the motion to compel.

TexPIRG objects to those remaining requests.

Applicant seeks copies of contracts between intervenors and their witness. That information simply has no relevance to this proceeding. Any financial agreements or terms between intervenors and their witnesses are proprietary in nature and will have no bearing whatsoever on the merits of any contention in controversy.

1/ TexPIRG received a copy of the '1etter from HI&P's counsel in Washington, D;C. on May 30. Because of the subst&ntihl time which may have passed since when the Board received a copy, we do not know if the Board may have-ruled yet. If perchance, this instrumenti

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_ _ TexPIRG,

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4 This Board has no regulatory anthority regarding the

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amount of fees or types of contracts available to expert witnesses.

TexPIRG knows of no plausible way in which knowledge of such information would impact upon the Board's duties and authorities in licensing a nuclear power plant.

Applicant also seeks all documents regarding certain ongoing

. studies of city water supplies. TexPIRG is not in possessiolof

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those documents, and this is the reason they have not been provided.

Mr. Howard Saxion is an environmental manager for thercon-sulting firm of Gutierrez, Smouse, Wilmut & Associates. Mr. Saxion has been retained by TexPIRG and Hinderstein on 'an individual basis; Mr. Saxion's employer is in no way related to this proceeding, and Applicant's counsel are full well aware of that. Mr. Saxion is performing his work for intervenors in the instant proceeding outside of his employment hours with the above-cited firm.

Applicant is seeking water supply studies performed--and in the stage of being performed--by Mr. Saxion for his employer, Gutierrez, Smouse, Wilmut & Associates. Those work documents are in the custody and possession of that consulting firm,- not-TexPIRG or Mr. Saxion. Those studies, such as.the Cleburne and MacGregor activities, are not completed; they have not been viewed by thefirm's clients yet, and there is an understandable reluctance to provide such incomplete work at this time.

Furthermore, Applicant is, in actuality, ma' king a request for documents from a non-party to this proceeding. In order to

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_ enforce di3covery against one who is not a party here, a greater i

showing of relevance and materiality must be made. Consumers Power

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• Co. (Midland Units 1 & 2) AIAB-118, 6 AEC 263 (1973). Applicant has neither shown that die information is otherwise unavailable nor U1at HI&P has attempted to minimize burdens on non-parties.

Consumers Power Co. ibid.

In fact, Hinderstein has suggested to HI&P counsel that said documents will be available once they are completed and be-come public information available from the client city governments.

Certainly, HI&P can show that degree of patience, especially when the~ documents are peripherally relevant, and not directly material to the licensing of Allens Creek Nuclear Station. Furthermore, HL&P has already directly examined Mr. Saxion under oath regarding those studies. Moreover, HI&P will have another opportunity to question Mr. Saxion on those matters in an upcoming deposition.1/

Since other background documents of subtantially the same nature have been supplied to HL&P, and HL&P has an opportunity to seek information through examination of Mr. Saxion, this request should be denied. See, Illinois Power Co. (Clinton Nuclear Station, Units 1 & 2) ALAB-340, and Public Service Co. of New Hampshire (Seabrook Station Units 1 & 2) 1 NRC 513, 514.

Finally, TexPIRG would point out that no formal request. for production of documents has been made, with service of 20 copies upon the Secretary of the Commission, et . HIaP has provided TexPIRG a letter requesting certain documents, per the Board's request that discovery be carried out and resolved informally; and TexPIRG has attempted to-co-operate with those requests, providing information that is relevant. However, 'TexPIRG has considered TexPIRG believes its consent to the forthcoming dep sition f/ this month amounts to liberal co-operation with the Applicant, since the deadline established by the Poard for discovery on the contentions related to Mr. Saxion's testimony has/ f' . _

f. .. Q 1ong since passed.

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those requests to be purely informal in nature, and therefore not requiring any motion for protective order to register 4

objection.

Applicant's original motion to compel discovery relied upon supposed committments made by Mr. Saxion during his deposition.

Yet an examination of the relevant portJ.ons of his deposition does not reveal any such agreement, but rather mere assertions

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i by HIAP counsel that they wanted those documents.

Regarding the request for contractual agreements, th e deposition reads:

"Q. All right, I would lika to request a copy of that (assignments). Do you have a contract with her? .

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A. We do.

Q. I would like a copy of that.

A. I think, you know, any correspondence 'that Miss Hinder-stein has sent to me, I think it's probably proper that you request those from her." (Dep. at 26-27)

Regarding the other request, the relevant portion of l

the deposition 1 :

"Q. Okay. Do you know or can you recall whether any of of these studies looked at water availability in the Brazos River watershed?1 A. Yes, I am conducting a study currently for McGregor,

, Texas, which is in the Brazos River basin and I am conducting a study currently for Cleburne which is also in the Brazos River basin.

Q. I would like to request copics of those two studies.

A. They are in progress.

Q. They are in progress?

A. Yes.

Q. All right. Are there any other studies where you have worked on the Brazos River basin?

A. Not to my knowledge right now.

(Dep. at 18-19) ,

Thus, TexPIRG does not believe HI&P has established the proper foundation upon which to request a motion to compel -

discovery.

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For the foregoing reasons, TexPIRG urges the Board to deny-the motion to compel production of additional documents

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by-TexPIRG and Hinderstein.

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• i i Respectfully, f James Scott, Jr.

Counsel for TexPIRG i

Box 237 UC University of Houston

- Houston, TX 77017 i I, Clarence Johnson, herein certify that this document has been served upon parties to this proceeding on or before

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Junej), 1980s

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