ML20082D887

Answer Opposing Citizens Assoc for Sound Energy 831109 Response to ASLB 831025 Memorandum Directing Production of List of Specific Const Deficiencies.Response Is Merely Contumacious Reiteration.Certificate of Svc Encl

ML20082D887
Person / Time
Site:	Comanche Peak
Issue date:	11/21/1983
From:	Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8311230122
Download: ML20082D887 (12)

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g November 21, 1983 00CKETED USHRC NUCL R REGU TORY C MMISSION Uf 2259 d1 BEFORE THE ATOMIC SAFETY AND LICENSINGrSQARD SECEETAC 00CKETING & SE9v ,

iiR.ANCH In the-Matter of )

) Docket Nos. 50-445 and TEXAS ~ UTILITIES GENERATING ) 50-446 COMPANY, _et _al. )

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

APPLICANTS' ANSWER TO CASE'S RESPONSE TO BOARD MEMORANDUM AND CASE'S MOTION FOR HEARINGS The stream of invectiveness from the intervenor continues to flow. Its most recent pleadingl recasts the same tired aspersions on the NRC Staff and Applicants that we have all heard before from the intervenor. The pattern is clear -- wherever the intervenor seems unable to focus for very long on factual issues regarding quality assurance and plant construction, resorting instead to ad hominem rhetoric in an attempt to divert the eyes of the Board from the true issues and to thereby prolong the proceeding.

We will not address the intervenor's renewed attacks on the competence and integrity of the NRC, including Region IV and the Office of Investigations. We assume that the Staff 1 CASE's Answer to Board Memorandum and Motions for Additional Hearings and Protective Orders, November 9, 1983.

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will respond to these insulting and inappropriate charges and insinuations. Suffice it to say that nothing in the record supports the intevenor's attacks on the NRC.

Nor' will we - distirguish the intervenor's attacks on Applicants' counsel with a detailed reply. This Board is well aware of the standards governing-the conduct of any person appearing before an NRC tribunal, and of the Board Chairman's authority to reprimand, censure or suspend such person. 10 C.F.R. $ 2.713. In order for an attorney-at-law to represent a party before the NRC, the attorney must be "in good standing" and admitted to practice before a state or federal court. 10 C.F.R. I 2.713(b). As such, the conduct of the attorney is also governed by the Canons of Ethics of the bar to which he or she is admitted. Unfortunately, there are not similar high standards of ethics that govern the conduct of other participants in NRC proceedings (such as the representative of the intervenor here) .

The result in this case has been that the other parties, and even the Board occasionally, have been subjected repeatedly to the insults of intervenor's poison typewriter.

l Intervenor's cruel reference to Mr. Lobbin's speech impediment as " stuttering and stammering" (CASE Answer, et i

10) is particularly distasteful. The Board charged the parties to refrain from filing invective pleadings, but that

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.V instruction.has~been ignored by the intervenor. It is time 1

for the Board to sanction the intervenor for this j contumacious conduct.

At bottom, the intervenor's diversionary tactics cannot relieve it of-the obligation to come forward, once and for all, with information it has regarding alleged construction deficiencies. The time for sensationalism and insinuation on the part of the intervenor has past. It is time for the intervenor to conduct _itself in a professional and controlled manner. It is time for the intervenor to produce evidence of the deficiencies that it claims exist, or to stop making the claims. It is time to complete the hearings on the issues that remain open and to proceed to decision on those issues.

II. RESPONSE TO CASE'S PLEADINGS 2 In its October 25, 1983 Memorandum (Procedure Concerning Quality Assurance), the Board directed the intervenor to submit, under.a strict protective arrangement, a list of specific construction deficiencies of which CASE claims to have knowledge or to have witnesses who have knowledge.3 The 2 CASE's pleading is titled " CASE's (1) Partial Answer to Board's 10/25/83 Memorandum (Procedure Concerning Quality Assurance); (2) Motion for Additional Hearings; and (3)

Motion for Protection Orders." The Board has already communicated to the parties its decision to deny the motion for protective orders. Accordingly, Applicants' answer is confined to the motion for additional hearings.

We also comment on and respond to CASE's answer to the Board's Octcber 2 5, 1983, Memorandum.

3 The Board has already communicated to the parties a (footnote continued)

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Board indicated it would. determine, through a site visit if necessary, whether there was a need to hold hearings on these matters.

Applicants request that the Board verify the procedures

- it now believes are in place for identification of these alleged deficiencies. Specifically, Applicants request that the Board verify that the nature of the alleged deficiencies must be identified with' sufficient specificity (with an indication of why the deficiency is likely to still be present and why it is indicative of a " quality" deficiency) to enable the Applicants and Staff to respond meaningfully.

, The Board must require information sufficient to allow it (and the parties) to evaluate the relevance and materiality of the allegations and Whether a site visit is warranted.4 We believe this aspect of the procedures is essential to assure that the Board is presented with sufficient information as to the potential significance or insignificance of any alleged deficiency to determine Whether there is a reasonable bauis for the Board to inquire further.

(footnote continued from previous page) modification to the procedures established in its Memorandum which allows the intervenor to withhold from the Board and parties information regarding specific locations and other identifying features of alleged deficiencies. This modification is responsive to the intervenor's request, and Applicants assume that the intervenor will comply with the Board's procedures.

4 We do not purport to address here (without waiving the right to do so later) the procedures the Board will employ if it determines that a site visit is necessary in view of the intervenor's forthcoming allegations.

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1 While the Board orally clarified to Applicants and the other parties the procedure it intends to use regarding the identification and pursuit of allegations, Applicants make these comments to assure there is a clear understanding, on the record, of Applicants' concern regarding these procedures.

Applicants believe that the procedures the Board has established will provide the intervenor with a full and fair opportunity to demonstrate that the deficiencies which it alleges in fact exist. We have reached a point in this proceeding where it is time to dispense with allegations and pursue specific issues. Further delay by the intervenor should not be permitted. If CASE has information Which indicates a deficiency, the Board should insist that CASE produce the information now to enable the case to proceed to closure.

In its October 2 5, 1993 Memorandum, the Board stated its determination that further hearings would be necessary to resolve certain allegations of inspector intimidation. These allegations are presently under investigation by the NRC Office of Investigations ("OI"). To obviate awaiting the completion of these investigations,-the Board indicated it intends to hold hearings on matters Which would demonstrate the adequacy of completed construction. Applicants agree that further hearings are warranted to resolve the

e 1 6 outstanding issues in this case and to close the record. We

. will file later this week Applicants', specific position on the scope and timing of such additional hearings.

. Applicants do not agree that still other hearings to address the matters raised in the intervenor's motion are warranted. Intervenor moves the Board to conduct additional hearings on (1) allegations of intimidation, (2)'open items regarding pipe support design allegations and (3) Board Notification 82-lO5A. The Board has already ruled with respect to the second and third motions, determining that these matters will be considered in the Board's initial

. decision on the pipe support design allegations.

CASE argues.that the Board should hold additional hearings to address the discharge of a coatings inspector (Mr. Dunham) and the initial determination by a Department of Labor investigator that the inspector was engaged in a protected activity within the ambit of the Energy

, Reorganization Act and that discrimination as defined and i

prohibited by that statute was a factor in his dismissal.

CASE also seeks to include within the scope of its proposed l

hearings, certain allegations by that inspector that a supervisor in the coatings department had intimidated certain u inspectors.5 CASE's argument is essentially two fold.

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5 CASE attempts to expand the allegations of intimidation by that supervisor to include inspectors other than thoso j in the coatings department by refering to the testimony l of Darlene Stiner who, as welding inspector, was also

! supervised by that supervisor. We note, however, that (footnote continued)

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First, CASE argues that this inspector has information regarding possible_ intimidation of inspectors in the coatings

' department, and second, CASE contends that the inspector's dismissal was improper and should be -litigated in this proceeding.- Applicants submit that both bases are insufficient for pursuing these allegations in additional hearings.

With respect to the inspector's allegations of intimidation, these are simply a reiteration of allegations previously made regarding the coatings department. As this Board has recognized, these matters are presently under

- investigation by OI and the results of those investigations will not be available for some time. Accordingly, the Board has, properly in Applicants' opinion, determined that in lieu of taking evidence regarding these allegations, it will take evidence on the results of the coatings reinspection program.

The Board has recognized that such evidence could demonstrate that, regardless of those allegations, there was no adverse impact on the final quality of coatings at Comanche Peak.6 Accordingly, the Board should adhere to the decision it made in'its Memorandum by finding that these allegations are within the scope of those matters as to which the Board (footnote continued from previous page?

the Board has already addressed these particular allega-4 tions or indicated that it itends to address them within the scope of a future decision. Accordingly, we do not believe these to be appropriate bases for ordering further hearings.

6 Memorandum (Procedure Concerning Quality Assurance) at 2.

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already intends to pursue by taking evidence on the reinspection program. Thus, it is not necessary for the

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Board' to take any evidence on the particular allegations of Mr. Dunham.

As for CASE's desire to litigate the facts surrounding the dismissal of the paint inspector, Applicants note that the legal issue involved in the finding by the Labor Department-investigator arises under Section 210 of tne

-Energy Reorganization Act. This Board has previously recognized that the jurisdiction to pursue issues arising under Section 210 is vested exclusively with the Department

! of-Labor.7~ Thus, whether the inspector was improperly dismissed pursuant to that statute is not a matter which this Board should pursue.

Further, that finding was not based upon an evidentiary record compiled before an Administrative Law Judge, but

.merely-upon the unilateral findings of the Labor l

L investigator. Thus, no evidence has been presented in that I

proceeding that would warrant the Board's independent pursuit i

! of this matter. We note that the Department of Labor evidentiary proceeding regarding this matter is scheduled to commence on December 9, 1983. The proper course would be for t- the Board to allow the Labor case to proceed, and to find l-7 Memorandum and Order (Emergency Planning, Specific Quality Assurance Issues and Board Issues) (September 23, 1983) at 19 n. 44.

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that.in'any event that the allegations are subsumed by the course outlined by the. Board to receive evidence on the coatings reinspection. l A final point should be made with respect to this allegation. -The Board suggested during the conference call

-of November 16, 1983, that it was particularly concerned with the involvement in the Dunham dismissal of the same QC management personnel who were involved in the Atchison dismissal (Tr. 9175-76). As Applicants briefly mentioned in response to the Board's concern, those same individuals are the persons responsible for all personnel actions in the

- Comanche Peak quality control organization. No individual is

- hired or dismissed from'that organization without the involvement of these persons. Thus, the mere fact that such involvement exists provides no additional justification for holding hearings on these matters, and the Board should not rely on this fact to reach a decision that hearings need be i ' held.8 Accordingly, the Board should deny,the intervenor's motion for hearings on these matters. I I

8 CASE'also argues that the Board should call as witnesses all QC inspectors who were at any time under the supervi-sion of Mr. Harry Williams. Applicants submit that such an approach by the Board is wholly inappropriate given that the NRC investigations now being conducted apparently are examining all allegations regarding Mr.

Williams. Further, the coatings reinspection program is fully responsive to the allegations concerning the coatings program, while the only allegations regarding Mr.-Williams and inspectors not in the coatings department are not new (see CASE Motion at 4, regarding Mrs. Stiner's allegations) .

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The intervenor also calls for additional hearings to address the memorandum written by Mr. Lipinsky regarding the coatings program at Comanche Peak. Applicants believe that the matters raised by that memorandum will be covered fully in the' hearings on the coatings program, and need not be addressed separately. Applicants will provide more details

.on the proposed scope of those hearings later this week. We urge the Board to withhold its decision on the. future scope and schedule of the case until it receives Applicants' proposal.

I Respectf y submitted, Nicholj .' Reynolds L <>

( 15 Silliam A. Horin Counsel for Applicants

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DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202) 857-9817 November 21, 1983

't UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 and COMPANY, _e t _a l . ) 50- :46 (Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating Licenses)

CERTIFICATE OF SERVICE I.hereby certify that copies of the foregoing " Applicants' Answer to CASE's Response to Board Memorandum and CASE's Motion for Hearings" in the above-captioned matter were served upon the following persons by overnight delivery (*), or deposit in the United States mail, first class postage prepaid, this 21st day of November, 1983 or by hand delivery (**) on the 22nd of November, 1983.

• • Peter B. Bloch, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Panel Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Mr. Scott W. Stucky

• Dr. Walter H. Jordan Docketing & Service Branch 881 W. Outer Drive U.S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission Washington, D.C. 20555 l *Dr. Kenneth A. McCollom-Dean, Division of Engineering Architecture and Technology **Stuart A. Treby, Esq.

Oklahoma State University Office of the Executive Stillwater, Oklahoma 74074 Legal Director U.S. Nuclear Regulatory Mr. John Collins Commission i Regional Administrator, Washington, D.C. 20555 l

Region IV U.S. Nuclear Regulatory Chairman, Atomic Safety and l Commission Licensing Board Panel l 611 Ryan Plaza Drive U.S. Nuclear Regulatory suite 1000 Commission

( Arlington, Texas 76011 Washington, D.C. 20555

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4-David J. Preister, Esq. *Mrs. Juanita Ellis Assistant Attorney General President, CASE Environmental Protection 1426 South Polk Street Division Dallas, Texas 75224 P.O. Box'12548 Capitol Station Austin, Texas 78711 Lanny A. Sinkin 114 W. 7th Street Suite 220 Austin, Texas 78701 (j) .

William A. Horin cc: Homer C. Schmidt Spencer C. Relyea, Esq. ,

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