ML20077N394
| ML20077N394 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 08/25/1983 |
| From: | Ellis J Citizens Association for Sound Energy |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8309130070 | |
| Download: ML20077N394 (11) | |
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UNITED STATES OF AMERICA N'
NUCLEAR REGULATORY COMMISSION DOCKyED A, ' '
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 12 P1 :25 In'the Matter of l-I APPLICATION OF TEXAS. UTILITIES D o c k e t ifd5U50-44 5 q'.'.,.,
s GENERATING COMPANY, ET AL. FOR Tr1F50g46' 4
'AN OPERATING LICENSE FOR I
COMANCHE PEAK SfEAM ELECTRIC STATION UNITS #1 AND #2
'(CPSES).
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b CASE'S ANSWER TO APPLICANTS' MOTION TO STRIKE INTERVENOR'S EXTRA-RECORD'SUBMITTALS 1~!*
- a Pursuant to 10 CFR 2.730, CASE (Citizens Association for Sound Energy) hereby files this, its Answer to Applicants' Motion to Strike Intervenor's A
This mo' tion was filed by Applicants' on 8/12/83 and Extra-Record Submittals.
received.by CASE on 8/15/83.
4 CASE has acted in good faith always in these proceedings and attempted to follow the Board's directions. However, there is now and always has been
. a difference of opinion as to what CASE believes is significant and what Applicants and the NRC Staff believe is significant.
Applicants' motion is, as usual skewed, misleading, and deliberately As has i
designed to influence the Board adversely against this Intervenor.
been ' pointed out before, this is standard opeTating procedure for the Appli-caiits in these proceedings -- when backed into a corner, without sufficient evidence to support their claims, they resort to attacking. CASE's witnesses and CASE and its representatives personally.
Applicants cited a March 1,1983, Board Memorandum and Order, which we will' discuss later in this pleading. However, they conveniently forgot to 3g M 0309130070 830825 PDR ADOCK 05000445 O
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'#8-mention another Board Order, that of January 4,1983. That Order dealt with I
certain documents which CASE moved be accepted into the record.
Regarding four of the five documents submitted, the Board stated that
" Rulings on the admissibility of the remaining exhibits will be deferred until the evidentiary hearing is resumed." (Footnote omitted.)
It should be noted that at that time, future hearings were anticipated regarding matters' raised by events and by CASE:
"The Intervenor has challenged the NRC Staff's com-petence in handling and investigating QC allegations by ' whistle-blowers,'
and has questioned the Staff's alleged bias in favor of the Applicants. Clearly further evidence on these issues will be required when the evidentiary hearing resumes." (Footnote omitted.) Order at pages 4 and 5.
In regards to the other document submitted, the Board accepted it into the record and made the following comments:
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" Exhibit 738 is a detailed, closely reasoned opinion and proposed order (by a Department of Labor Administrative Law Judge), finding that Mr.
Atchison's wrongful discharge as a quality control (QC) inspector by 4
Brown and Root resulted from his complaints about and reporting of con-struction defects and quality control deficiencies... "
"The Recommended Decision results from an appeal of that determination, and is based upon a full evidentiary hearing before an Administrative Law Judge. Such decision contains important additional evidence directly connected with testimony already in our record.
In fact, we are surprised that only the Intervenor called this matter to the Board's attention on December 14, 1982 and filed a copy on that date. We have previously admonished both the Applicants and the Staff that they have an affirmative _
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duty to inform the Board promptly of new facts or developments. /12/
-(Footnote /12/ Order dated October 20,1981.) This.Recomended Decision is a potentially significant matter which Applicants and Staff should have immediately forwarded to this Board. /13/ (Footnote /13/ Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 406, fn. 26 (1976).)
"The Staff has an additional reason to break its silence in this matter..."
(Emphases added.)
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Applicants also forgot to mention a few important aspects of the very n
Board. Order which they cite (March 1,1983). One of the most significant
. omissions is the fact that the Board's admonishment was not directed solely
,p at CASE, as Applic[nts would have the Board believe, but at all parties, Applicants and Staff included.
Further, in that Order, the Board struck not only CASE pleadings, but pleadings by both Applicants and NRC Staff as well.
In its comment that "The Board is concerned that the parties are having difficulty meeting deadlines important to the schedule..." the Board might f
~ well have been referring to the fact that Applicants had just missed the deadline for filing their provisional Proposed Findings of Fact. (CASE and the Staff, in accordance with the Board's directive, had filed on February 24; Applicants
.a did not file until February 25, giving them the benefit of an extra day and i
allowing them to receive the pleadings of the Staff and CASE prior to filing,
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in addition to their usual edge of being in the same city and being able to run overand hand-deliver a copy to the Board, whereas CASE has to send things a day in advance at great added expense and effort).
Applicants also conveniently forgot to mention that CASE paid dearly for its taking the time to answer one of Applicants pleadings (which was stricken by the Board in its 3/1/83 Order) -- Applicants' 2/8/83 Answer to CASE Motion 6
-(and Supplement) for Protective Orders.
This pleading by Applicants was so detrimental to CASE, CASE's representative Mrs. Ellis personally, and Ms. Billie Garde (with GAP) personally, that CASE was in fear of being kicked out of the hearings if we allowed Applicants scurrilous, untrue pleading to remain in the record unopposed (as it surely would have absent an answer from CASE).
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~. ;,1 In our 2/21/83 Motions to (1) Respond to Applicants' Charges of Misconduct
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c by CASE;l(2)' Strike' Applicants' February 8,1983 Answer to CASE Motion (and
' Supplement) for Prote[tive Orders; and (3) Impose' Sanctions Again Applicanti, CASE urged that the Licensing Board not allow Applicants' false and malicious
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accusationsL(and CASE's mandatory reply)'to rob CASE of valuable time needed to complete our. Findings. Our plea fell on deaf ears.
Instead, then-Board
- Chairman Miller struck'both Applicants' 2/8/83 Answer and CASE's 2/21/83 l
~ Motions and all pleadings leading up to it by CASE, Applic' ants' and NRC b'
Staff.
.It was Applicants 2/8/83 Answer which led directly to CASE's not being able to complete its Provisional Proposed Findings of Fact. The Licensing p
. Board severely. penalized CASE for-our not having completed those Findings.
i In its JulyL 29,l 1983, Proposed Initial Decision (Concerning aspects of con-i struction quality control, emergency planning and Board questions), the Board l
.. stated:
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... CASE did not include these matters in its proposed findings even l
though the proposed findings were ' mandatory.... Because this Board is consequently left-to speculate about what CASE currently contends about I
these issues, its failure to file proposed findings constitutes cbandon-
~j ment of this portion of its case....
We' therefore find that CASE.has abandoned -the allegations on which it
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- [g hastnot filed findings...." (Emphases addpd.)
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This was a: severe blow to CASE. Since its inception in 1974, we have j
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' intervened in all Dallas Power & Light rate hearings and are the only remaining
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.'Intervenor in these operating license hearings for Coma,nche Peak. Through the
~I Erroneously cited in the Board Order as 2/2/83.
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t years, we have worked diligently, continuously, digging out facts, under extreme handicaps of lack of funds, all-volunteer w srkers (most of whom work full-time at other paid jobs), under constant pressure of deadlines. But
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CASE.has always fulfilled our obligations and been very careful to maintain our credibility and integrity.
The Board's recent Order was the first time that CASE has ever been found in default in meeting its obligations.
Frankly,
it hurts.
It hurts primarily because we feel very strongly that we have been 9
treated very unfairly in this matter by the Licer. sing Board. The Board's action hardly constitutes " continuing to coddle the Intervenor at the expense of the Applicants," as suggested in Applicants' 8/12/83 Motion to Strike.
It is not just CASE which has been hurt by the Board's decision in this regard.
The Board has also been hurt, as has the entire hearings process --
because Applicants have succeeded in using the Licensing Board to achieve their aim of diverting CASE from its Findings.
Apparently, judging from Applicants' very cursory treatment of its Findings on the Walsh/Doyle allegations (contrary to the Board's directives that the parties include reasoned arguments on the issues which set forth the positions of the other parties and stated why the arguments of the other parties did not stand up), Applicants believed that CASE would be unable to file its Proposed Findings on the Walsh/Doyle allegations and fin'd time to respond to Applicants' several recent pleadings simultaneously. We assume that Applicants will, upon receipt of CASE's Proposed Findings on the Walsh/Doyle allegations, be crying to.the Board for more time to respond (since they did not file adequate Findings to begin with).
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i It should also be noted that many of the pleadings stricken by the Board's 3/1/83 Order were pleadings wherein CASE was seeking -- no, begging -- for help from the then-constit $ted Licensing Board in dealing with the fact that CASE was being contacted by potential witnesses because they had no confidence in the NRC Region IV office's ability and/or willingness to adequately investigate concerns of workers and/or whistleblowers.
CASE simply did not know where to turn. And the Licensing Board Chainnan at that time, Mr. Miller, would not discuss even the most trivial procedural-type questions with this Intervenor.
CASE presently feels a return of its lack of confidence in the established system,' because of the fact that the three individuals for whom we sought protective orders from the Board are no longer employed at Comanche Peak --
two were in a layoff shortly after the Board's ruling striking CASE's pleadings, and one quit shortly before that layoff (convinced that he too would be included
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-in the layoff).
They, and CASE, firmly believe that this was in direct retali-ation for their stated willingness and desire to testify in these proceedings.
As: indicated earlier-in this pleading, it may well be that the significance of some' of CASE's pleadings has not been clear. We believe that it is significant that the Chairman of the Board and Chief Executive Officer of Texas Utilities Company. has now become the Chief Executive Officer of Brown & Root, the contractor for Comanche Peak. We believe it is significant because it supports the Board's
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decision on collateral estoppel in the Atchison case, and might well be used as supportive information should Applicants later seek to appeal the Board's decision in this regard.
We believe it is signif' cant that not just CASE, but Congressional sub-committees and even the Licensing Board in the South Texas hearings, are aware
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'. J s ji that the investigation'in the past by NRC Region IV have been inadequate (tobe~ kind). We think it is significant that the NRC Senior Resident In-spector - Construction at Comanche Peak, and the whole NRC Region IV office appa.rently, could n$t find Larry Witt, when anybody with a Glen Rose phone book could have found him, when the County Judge, the Sheriff, officials with Brown & Root, etc., etc., could have told the NRC where to find him.
We think it is significant that three people that CASE knows of (and that f
now the NRC investigators, NRC Region IV, and anybody else who has access to NRC documents knows of) have concerns about the illegal use of rebar eaters at Comanche Peak.
It should also be noted that, as explained to the Board r
r% airman when CASE advised that we would be sending our 8/3/83 letter regarding discouragement from reporting nonconforming conditions, what we filed was the same information we turned over to NRC investigators as part of what CASE believes they should look at in their ongoing investigation, with a few additions.
One of our purposes for doing this was to deliver this information to the in-vestigators in writing, so that there could be no misunderstanding lator about what had been said or about whether or not the individuals named by CASE in that letter wanted to remain confidential. We did not want the NRC investi-3 gation (at least insofar as CASE's witnesses or potential witnesses is concerned) to be shrouded in die cloak of " confidentiality," as happened with the invest 1-gation into the allegations of Henry and Darlene Stiner.
CASE submits that the Licensing Board is well able to decide for itself what is significant and what is not, without a pre-determination being made for it by either the Applicants or the NRC Staff.
If it believes that what In fact, it
- CASE is_ submitting is not significant, it has only to say so.
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'recently availed.itself o'f its authority to do so, when it. denied CASE's
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8/3/83 pleading due to-lack of ripeness.
Further, it is CASE's -intention to advise the Board Chairman of any future pleadings we plan to file prior i
to filing them.
If he does not feel. that they are significant we will not do so.
4 It is obvious, from the record in these proceedings, that neither Appli-
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cants nor,.the NRC Staff have any intention of complying with the Board's _ di-rective to-inform the Board promptly of new facts or developments. CASE has attempted' to fulfill. its duty in this regard. Our efforts have at all times been in good faith. We have done the best we can considering the circumstances under which we must' operate, which includes the fact that we are without
' legal representation (as the Board is well aware, but which should be stated
.here for the' record) and the fact that we do not.have paid consultants as the Applicants and NRC Staff do, but must work (often by long-distance telephone l
j Land with daily Federal Express pick-ups five, days a week, as when preparing
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' Lour Proks'ed. Findings on Walsh/Doyle) with individuals whose only payment
'.is that they can sleep nights knowing that they; have done their best to make l
. Comanche Peak a safer plant.
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. With regard to the materials and information which CASE has referenced in pleadings recently.which has been previously" stricken, CASE did so only fi
- to avoid burdening.the record unnecessarily by repeating what has previously
- been' sai d.
However, Applicants ignore the fact that the framework within
- which this information has recently been submitted is 'far different from
. its original subm'ssion and its original ripeness, if you will.
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as pointed'out herein, the specific pleadings which the Board struck regard-
.ing Messrs. Combs, Smith, and Harrell, are now directly rele/ ant (as are
,.u the submissions regarding Messrs. Dillingham and Messerly) to an ongoing NRC investigation.
(Speaking of which, CASE is unable to discuss these matters further at this time, since we have been asked to meet with some of our potential witnesses -- one in two hours, 80 miles away, from the tine we are typing this pleading) when they talk with NRC investigators.
CASE believes that it is important that the Board be aware of what is i
going on in the real world -- not just the phony, make-believe world which Mw Applicants and the NRC Staff would have the Board believe really exists --
a world in which Applicants and NRC Staff seek to pressure the Board with inaccurate, deliberately optimistic construction completion dates into making a hasty decision, without all the facts, to grant Applicants an operating license for Comanche Peak. And CASE believes that the Board is well able, as stated previously, to determine for itself what is significant without predeterminations by the Applicants and/or the NRC Staff.
For the reasons set forth herein, CASE moves that the Board deny Appli-cants' 8/12/83 Motion to Strike Intervenor's Extra-Record Submittals in its We further move that the Board order Applicants to cease and desist f.
entirety.
from its unfounded, untrue, and unwarranted at* tacks on CASE and its representatives.
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Respectfully submitted, u
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.(Mrs.~) Juanita Ellis, President CASE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 A___-____-___-_-__-___--____-_________--________________-______
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n, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD i ~
a In the Matter of I
I APPLICATION OF TEXAS UTILITIES
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GENERATING COMPANY, ET AL. FOR Q
Docket Nos. 50-445 AN OPERATING LICENSE FOR
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and 50-446 COMANCHE PEAK STEAM ELECTRIC Q
STATION UNITS #1 AND #2 (CPSES)
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CERIlFICATE OF SERVICE By my signature below, I hereby certify that true and correct copies of CASE'S ANSWER TO APPLICANTS' MOTION TO STRIKE INTERVEN0R'S EXTRA-RECORD SURMITTALS by: ggfgXVaMX MVEi&%XJXUyXXXMY5 First Class MailXMMMMBU
-3, have been sent to n mes listed below this 25th day of August
,198 Administrative Judge Peter B. Bloch Alan S. Rosenthal, Esq., Chairman U. S. Nuclear Regulatory Comnission Atomic Safety and Licensing Appeal Board
' Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Dr. Kenneth A. McCollom, Dean Dr. W. Reed Johnson, Member Division of Engineering, Atomic Safety and Licensing Appeal Board Architecture and Technology U. S. Nuclear Regulatory Commission Oklahoma State University Washington, D. C.
20555 Stillwater, Oklahana 74074 Thomas S. Moore, Esq., Member
~Dr. Walter H. Jordan Atomic Safety and Licensing Appeal Board 881 W. Outer Drive U. S. Nuclear Regulatory Commission Dak Ridge, Tennessee 37830 Washington, D. C.
20555 Nicholas S. Reynolds, Esq.
Atomic Safety and Licensing Appeal Panel Debevoise & Liberman U. S. Nuclear Regulatory Commission 1200 - 17th St., N. W.
Washington, D. C.
20555 Washington, D. C.
20036 Docketing and Service Section Marjorie Ulman Rothschild, Esq.
Office of the Secretary Office of Executive Legal Director U. S. Nuclear Regulatory Comnission U. S. Nuclear Regulatory Comnission Washington, D. C.
20555 Washington, D. C.
20555
' Atomic Safety and Licensing Board Panel U. S. NJclear Regulatory Commission Washington, D. C.
20555
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-(C rtif'ic;te of Service Pags 2 David J. Preister, Esq.
Assistant Attorney. General
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- Environmental Protection Division
- Supreme Court Build.ing.
Austin, Texas 78711 John Collins Regional Administrator, Region IV
, U. S. Nuclear Regulatory Commission 611 Ryan Plaza Dr., Suite 1000 Arlington, Texas 76011
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Lanny Alan Sinkin '
838 East Magnolia Avenue
-San Antonio, Texas 78212 Dr. David H. Boltz
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2012^S. Polk Dallas, Texas 75224 l
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(firs.) Juanita Ellis,~ President i
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i CASE (Citizens Association for Sound Energy) i l
1426 S. Polk Dallas, Texas 75224 2.14/946-9446
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