ML20099B537

Motion to Modify ASLB 841004 Order to Limit Witnesses to Norris Only or Permit Roth to Sit at Counsel Table During Trallo Testimony.Certificate of Svc Encl.Related Correspondence

ML20099B537
Person / Time
Site:	Comanche Peak
Issue date:	11/15/1984
From:	Gallo J ISHAM, LINCOLN & BEALE, OLIVER B. CANNON & SON, INC.
To:	Atomic Safety and Licensing Board Panel
References
CON-#484-180 OL-2, NUDOCS 8411190193
Download: ML20099B537 (6)

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i . ($k REL.ATED CORRESPONDENT 11/15/84 COCMETED U%RC UNITED STATES OF AMERI'M NOV 16 N1 :14 NUCLEAR REGULATORY COMMISSION rr:a. =r .

BEFORE THE ATOMIC SAFETY AND LICENSINGiBOARD clONCH -

In the Matter of )

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TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-2 and COMPANY, _e t _al . ) 50-446-2 (Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating Licenses) s Motion to Modify Order On October 4, 1984, the Atomic Safety and Licensing Board (" Licensing Board") ordered that Messrs. Roth, Norris and Lipinsky be called as witnesses to testify with respect to the matters delineated in the order. The Licensing Board further ordered that these witnesses will be sequestered so that none will hear the testimony of the others. Counsel on behalf of Oliver B. Cannon & Son, Inc. and Messrs. Norris and Lipinsky moves the Licensing Board to modify its sequestration order to limit its applicability to (i) Mr. Norris only, or in the alternative, (ii) permit Mr. Roth to sit at counsel's table during the testimony of Mr. Trallo. In support of the motion, counsel states:

1. Sequestration of witnesses in NRC proceedings is not common. Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-365, 5 NRC 37, 38 (1977). Such a measure should be applied with a sensitive concern for the special nature of i NRC proceedings. Consumers Power Company (Midland Plant, Units 8411190193 841115 PDR ADOCK 05000445 o PDR

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1 and 2), ALAB-379, 5 NRC 565, 568-69 (1977). An atomic safety and licensing board must specify its reasons for such action to insure adequate appellate review. ALAB-365; ALAB-379; and Consumers Power Company (Midland Plant, Units 1 and 2),

ALAB-373, 5 NRC 415 (1977). The usual reason for sequestering witnesses is that such action is necessary because their credibility is at issue. ALAB-373 at 416.

2. The Licensing Board's October 4, 1984 Memorandum does not articulate the reasons for seques'tering Messrs. Roth, Lipinsky and Norris. Hence, it is defective since it cannot serve as a basis for appellate review. Counsel assumes, however, that the sequestering order was motivated by concerns of witness credibility. On that assumption, the Board can only justiify sequestering Mr. Norris because of its perception that Mr. Norris testified in an inconsistent manner. (But see, the Motion to Strike filed by counsel with respect to Mr. Norris' October 1 and 2 testimony.) No basis exists to suggest a credibility queE'.Jon with respect to the testimony of Messrs.

Roth and Lipinsky. The Licensing Board did not seek to bar these witnesses from discussions among themselves and reading of the relevant transcripts. Moreover, the Licensing Board acknowledged in its October 4 Memorandum that it expected these witnesses to testify "to the truth, without regard to their professional positions or financial interests." In these circumstances, the October 4 Memorandum is overbroad inasmuch as there is no basis to sequester Messrs. Roth and Lipinsky and

4 it should be modified to exclude these witnesses. ALAB-379 at 570.

3. Good reason exists to impose witness sequestration orders only in compelling circumstances because such an order by clear implication impugns the integrity of the witness. That is, the fact that a tribunal finds sequestration necessary implies that if the witnesses concerned hear the testimony of others they will alter and shade their testimony to comport with what they heard. Such an implication is completely unwarranted with respect to Messrs. Roth and Lipinsky. Moreover, in NRC hearings the unfettered avail-ability of experts to counsel is deemed essential. ALL'-3 7 9 .

Counsel needs the assistance of these witnesses during the course of the hearings. Admittedly the testimony at issue is less technical than in the usual case; however, quality control and assurance questions involving safety-related protective coatings raise technical issues that are inextricably linked with the Cannon intimidation issue. Moreover, because of counsel's brief involvement in this case, assistance will undoubtedly be needed to clarify factual matters that may arise during cross-examination. Counsel recognizes that Mr. Trallo will be available for assistance since he is not subject to the sequestration order. However, his assistance will not be available at the time of his testimony. Moreover, the assis-tance of Mr. Trallo alone is likely to be insufficient. Mr.

Lipinsky is the QA/QC expert not Mr. Trallo. Mr. Roth

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speaks for O.B. Cannon &_ Son, Inc., not Mr. Trallo. Thus, the assistance and availability of all three witnesses is required by counsel.

For the foregoing reasons, the Licensing Board should modify its sequestration order to exclude Messrs. Roth and Lipinsky. In the alternative and only if the Board denies the primary request for relief, the order should be modified insofar as permitting Mr. Roth to assist counsel during the presentation of Mr. Trallo's testimony.

Respectfully submitted, oseph Gallo Counsel to O.B. Cannon

& Son, Inc., and Messrs.

Norris and Lipinsky ISHAM, LINCOLN & BEALE 1120 Connecticut Avenue Suite 840 Washington, D.C. 20036 Phone: (202) 833-9730 DATED: November 15, 1984 1

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-2 and COMPANY, et al. ) 50-446-2

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(Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating Licenses)

CERTIFICATE OF SERVICE I hereby certify that copies of " Motion to Modify Order" in the above-captioned matter were served upon the following persons by deposit in the United States mail, first class, or as otherwise indicated by hand delivery , this 15th day of November, 1984.

Peter B. Bloch, Esquire Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board U. S. Nuclear Regulatory U. S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

, Mr. William L. Clements Herbert Grossman, Esquire Docketing & Services Branch Alternate Chairman U. S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U. S. Nuclear Regulatory ,

Commission Stuart A. Treby, Esquire Washington, D.C. 20555 Office of the Executive Legal Director  !

Dr. Walter H. Jordan U. S. Nuclear Regulatory l Administrative Judge Commission

881 West Outer Drive Washington, D.C. 20555

! Oak Ridge, Tennessee 37830 l

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Chairman, Atomic Safety and Anthony Z. Roisman, Esquire Licensing Board Panel Executive Director U. S. Nuclear Regulatory Trial Lawyers for Public Commission Justice Washington, D.C. 20555 2000 P Street, N. W.

Suite 600 Renea Hicks, Esquire Washington, D.C. 20036 Assistant Attorney General Environmental Protection Ellen Ginsberg, Esquire Division Atomic Safety and Licensing P. O. Box 12548 Board Panel Capitol Station U. S. Nuclear Regulatory Austin, Texas 78711 Commission

, Washington, D.C. 20555 Nicholas S. Reynolds, Esquire McNeill Watkins, II, Esquire Mrs. Juanita Ellis Bishop, Liberman, Cook, President, CASE Purcell & Reynolds 1426 South Polk Street 1200 17th Street, N. W. Dallas, Texas 75224 Washington, D.C. 20036 Dr. Kenneth A. McCollom Administrative Judge Dean, Division of Engineering, Architecture and Technology Oklahoma State University /

Stillwater, OK 74078 O Mf Jgypph gallo' DATED: November 15, 1984

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