ML20083C051
| ML20083C051 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 12/16/1983 |
| From: | Clewett J GUILD, R., PALMETTO ALLIANCE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8312220083 | |
| Download: ML20083C051 (14) | |
Text
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T, rt e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
$ht BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL'8)AREC 21 A9 5
)
In the Matter of DUKE POWER COMPANY, et al. )
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) Docket No. 50-413
) 50-414 (Catawba Nuclear Station. !
Units 1 and 2) f
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PALMETTO MOTION TO DIRECT CERTIFICATION OF LICENSING BOARD'S DENIAL O DISCOVERY BY PALMETTO ON ISSUES, RAISED BY IN CAMERA WITNESSES, AS TO WHICH THE BOARD IS ALLOWING FURTHER FACTUAL TTSTIMONY BY APPLICANT, AND TO REVERSE THAT DENIAL; AND PALMETTO MOTION TO DIRECT THAT THE RECORD REMAIN OPEN UNTIL SUCH DISCOVERY CAN BE HAD Pursuant to 10 C.F.R. 2.718, Palmetto Alliance (Palmetto), an intervenor in this proceeding, hereby moves the Atomic Safety and Licensing Appeal Board (Appeal Board) to direct certification from the Atomic Safety and Licensing Board (Licensing Board), of its December 13 and 14 denial of any discovery rights on the part of Palmetto as to issues raised by in camera witnesses as to which the Licensing Board has decided to allow further factual testimony by Applicant.
Palmetto further requests that the Appeal Board reverse that License Board decision, for the reasons discussed below.
In addition, Palmetto moves the Appeal Board to direct that the record remain open on.all of these issues until such discovery can be had.
I. BACKGPOUND In response to representations by Palmetto and the Government Acc;untability 8312220083 831216 CS PDR G
ADOCK 05000413 PDR MV
i Project (GAP) that th:re were potential witnesses among Duke Power Company (Duke) !
i employees who would testify about unsafe condition 5, equipment, and procedures at the Catawba Nuclear Power Plant except for the fact that they feared retali- s ation against them by Duke, the Licensing Board appealed directly to the Duke i workers to consider testifying under in, camera procedural safeguards.
On November 8,1983, the Licensing Board received the testimony of the 1 first of four witnesses responding to the Board's invitation. He testified in camera, as did two other workers the following day, November 9. The last of the i four who came forward, Mr. H. Langley, chose to testify publicly rather than h camera, and did so on November 10.
In their testimony, the four men offered numerous specific examples of l
unsafe conditions, equipment, and procedures. They testified to a wide variety of safety-related problems at the Catawba Plant, including a number that suggest that there may be a widespread evasion of proper construction procedures at Catawba, rendering the as-built quality of the plant either indeterminate or affirmatively unsafe.
As stated by the Licensing Board, the " principal objective of hearing this testimony is to learn what your concerns are in the record and in some detail and give counsel an opportunity to ask questions so that they can begin l investigating your concerns." Tr. 40 in camera .
1 t
On November 28, almost three weeks after the last of these witnesses had testified, the Applicant moved to strike the testimony of all four witnesses, 1 in its entirety, save one issue, concerning improper reading of x-rays, which it conceded was relevant. In response, the NRC staff moved to strike all of a the testimony, except for the issues of falsification of certain quality i assurance records, and dangerous procedures and conditions relating to the containment spray system.
h
E The following day, November 29, Judge Kelley suggested that some of the issues raised by the four witnesses might be allowed into controversy so that s further evidence could be received, and told counsel for Palmetto to select .
ten issues of those raised that he would most like to see evidence received on.
On December 2, counsel for Palmetto was allowed one hour to argue why these issues, and all others raised in camera, were important ones for the Board to !
receive evidence on. ~
f The Licensing Board issued its decision on these motions to strike in
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several installments, spanning a six-day period from December 8 through December -
13, 1983. k In its decision, the Board admitted the e camera testimony, and allowed further testimony to be received from the Applicants, concerning a _
number of specific factual issues, including the safety-related consequences of f
laminations in reactor containment "knuckleplates," the harassment of welders by their foremen to put scheduling ahead of quality in welding, the intimidation of welding inspectors, the use of improper welding material, the improhr reading of x-rays, the pre-notification of the times and subjects of NRC inspections, and the safety issues of the containment spray system.
The very same day that the Board's ruling on the motions to strike was completed, December 13, counsel for Palmetto moved for discovery of the issues as to which the Board had agreed to hear further testimony from the Applicant.
The Board denied the request for discovery on these issues, stating that 9
" formal discovery procedures...would take too much time," would therefore
" prejudice the Applicants," and might " prejudice the Board's ability to decide the safety issue prior to the fuel load, anticipated fuel load date.. . ." ;
Tr . 11,217-8. Because the Applicants had filed very extensive pre-filed
testimony on several of the approved issues less than 18 hours2.083333e-4 days <br />0.005 hours <br />2.97619e-5 weeks <br />6.849e-6 months <br /> before Palmetto's motion 'ar discovery rights, and because the Board planned to take testimony from these witnesses beginning on December 14 Palmetto subsequently, on December 14, renewed its motion for discovery rights in the context of a stay of the proceedings until such discovery cculd be had. The Licensing Board denied this motion also, and denied Palmetto's request to certify or refer the question to the Appeal Board.
In support of its decision to deny discovery by Palmetto, the Appeal Board stated that the discovery request should have been made, if at all, "several weeks ago" (that is, after the in, camera testimony, but before the Appeal Board's decision on whether to allow this testimony in the record, and to allow other testimony on such issues). It further stated that " informal
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discovery has been presumably available all along." Tr. 11,219.
However, Duke and the NRC :taff have consistently refused to allow any informal discovery. This position was again affirmed, on the record, on December 14, when Duke refused to allow any informal discovery as to the pre- -
filed testimony it had filed within the previous 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />. Tr. .
(December 14, 1983). This Duke testimony consists of a number of panels of as many as n,ine witnesses put forth to rebut specific allegations of fact made by the in camera witnesses. Counsel for Palmetto had requested, on December 13, to be allowed informal discovery regarding the underlying documentary and other evidence referred to in the pre-filed testimony, and to be allowed to depose or otherwise interview several of the specific witnesses advanced by Duke.
In response to the testimony of the four original in camera workers, the NRC staff initiated investigations of a substantial number of the issues they
raised, in spite of the fact the staff moved to have testimony on these issues stricken from the hearing record. The staff did not plan to offer any of the .
fruits of its investigation into the hearing record. But on December 14, 1983 the Licensing Board directed that the record would remain open on the
" lamination" issue until the NRC staff finished its investigation into that issue, and submitted its findings for the record. The Board stated that it would have refused to keep the record open as to this issue as well, except for the fact that the staff was unable to present its position now. Indeed, the Licensing Board said it "doesn't seem sensible" to proceed without staff input, if the Board will "in effect quite likely have to retry the matter." Tr. !
(December 14, 1983).
l Even as to this issue, for which the Board decided to keep the record i open until January,1984, for staff input, the Board has refused to allow Palmetto any discovery rights at all . The Board asserted, on December 13, that discovery on the lamination issue was not warranted because "there has been no showing by Palmetto that they can make any technical contribution to the resolu-tion of that issue." Tr. 11,219.
II. THE APPEAL BOARD SHOULD DIRECT CERTIFICATION OF THE LICENSING BOARD'S DENIAL OF DISCOVERY BY PALMETTO, AND SHOULD REVERSE THAT DENIAL The Commission's regulations indicate that a presiding officer (which includes an Atomic Safety and Licensing Board) may, among other things, " Certify questions to the Commission for its determination, either in his discretion or on direction of the Commission." 10 C.F.R. 2.718(i).
Commission precedent clarifies that 10 C.F.R. 2.718(i) gives any party the right to seek interlocutory review of Licensing Board decisions by filing a petition for " directed certification" to the Appeal Board. Public Service Co. of N.H. (Seabrook Station Units 1 and 2), ALAS-271,1 NRC 478, 482-83 (1973).
This remedy is not, of course, automatically available, but is limited to those circumstances where one of two showings canbe made: either that the ruling below threatens the adversely affected party with immediate and serious irrepar-able injury which, as a practical matter, could not be alleviated by a later appeal, or that it affected the basic structure of the proceeding in a pervasive or unusual manner. Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-588,11 NRC 533, 536 (1980); Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-405, 5 NRC 1190,1192 (1977).
In the situation in which the Licensing Board's order places Palmetto, both of these separate standards are met, although either one separately would constitute an adequate basis to support directed certification, and reversal of the order.
Perhaps the most immediately obvious reason why the Licensing Board's order should be reversed on directed certification is that it affects the basic structure of the proceeding in a pervasive and most unusual manner.
In order to insure the development of a sound record on the issues the Board decided were relevant, it is crucial that all of the parties have a fair chance to ascertain and present the underlying facts. But in the present situation, there is a profound and pervasive unfairness in the hearing. One
party, Duke, with the most immediate and complete access to the underlying facts, has used that access to develop a massive set of pre-filed testimony geared toward refuting specific assertions of the ir[ camera witnesses. Duke has also had the benefit of informal discovery of the irt camera witnesses themselves, as the Licensing Board notes on Tr.11,217. Duke has been granted permission to address the truth or falsity of the factual issues raised by the in, camera witnesses, and has mounted an elaborate effort to do so.
Another party, the NRC staff, also has some effective access to the underlying facts, through its official investigations and the factual data it can compel or persuade the Applicant to yield. The sta ff, however, has shown little interest in adduci,ng evidence on these issues at the hearings, preferring to wait until after the hearings are closed to reach its conclusions (except as to one issue, where the Board is holding the record open for the staff concl usions) .
The remaining active party in these proceedings is Palmetto, which does not believe that a full and fair record is likely to result from a procedure where only the Applicant can mount a factual case concerning the in camera witnesses' issues. Palmetto needs to engage in the normal sorts of discovery, traditionally available when a Licensing Board declares particular issues to be relevant, and subject to further factual presentations. The Board has forbidden this, leaving Palmetto in a much worse position than the other parties, who have much greater formal and informal access to the under-lying facts on which a just decision should be based. This problem is compounded because Duke and the staff have refused to cooperate with Palmetto even in any informal discovery.
Palmetto's requests were not unusual--they consisted of such things as
8 deposing some of the welders who have apparently been harassed, for example, and seeing the documents on which Duke's witnesses claim to base their factual conc-lusions. The record will be seriously, and unfairly, skewed if the only evidence on this point is a statement by Duke's panel of nine management per-sonnel (and not a single welder), who swear that no harassment of welders ever occurred. The Board's decision te proceed with evioentiary hearings while one party has both hands tied behind its back is an unusual departure from the norm.
Nor is it at all fair to charge Palmetto, as the Board does, with having waived any and all procedural rights to normal discovery on issues which had not previously arisen, simply because there had been a prior discovery period.
That is, until the in, camera witnesses appeared, no one had any reason to attempt discovery on, for instance, the question whether welder M. D. Ray covered up defective welding because he was afraid of foreman pressure or retaliation. Now that that issue, and many more specific issues of fact, have arisen and have been accepted by the Licensing Board as relevant issues, fundamental fairness requires that all parties have a fair opportunity to discover the underlying facts, and present them to the Board, to aid the full development of the record.
In similar situations, Appeal Boards have not hesitated to reverse, on directed certification, orders that interfered with the full development of the evidentiary records. In Consumers Power Co. (Midland Plant, Units 1 and 2),
ALAB-379, 5 NRC 565 (77), the Licensing Board had ordered staff witnesses sequestered so that only one staff expert could observe the testimony of other witntsses. The Appeal Board concluded that this order was "not merely inconvenience," but that the Board actions " threaten to impede rather than aid the full development of the record. There is, then, justification both to
review these rulings now and, as it turns out, to reverse them." Id. , at 568.
This analysis is even more appropriate here. The Board's action, by effectively prohibiting Palmetto from preparing its factual case on these issues, clearly " threatens to impede rather than aid the full development of the record."
Similarly, Federal Courts have held that it is reversible error to curtail discovery so that one party is unable to obtain crucial evidence, if the party can show that more diligent discovery was impossible. Eli Lilly Co.
- v. Generix Drug Sales, Inc., 460 F.2d 1096 (5th Cir.1972). In the instant case, no discovery is possible. Moreover, Commission precedent establishes that when a party fails to produce relevant evidence within his control, the inference arises that the evidence is unfavorable to him. Public Service Co.
of New Hampshire (Seabrook Station, Units 1 and 2), 7 NRC 477 (1978). Thus, the fact that, for instance, Duke's nine-man panel on " Foreman Override" claims to have evaluated " relevant portions of documents," but produces none at all, suggests that. crucial evidence is not being brought forward. Palmetto would request copies of these allegedly relevant documents if it had the chance.
Because of the unusual and pervasive effect on the basic structure of the hearing discussed above, the Appeal Board should direct the certification of, and reverse, the Licensing Board's order.
A second independent basis for granting Palmetto's motion to direct certi-fication and reverse, is the irreparable harm that will occur to Palmetto in the absence of Appeal Board action. There are at least two separate such irreparable harms to Palmetto. First of all, there is the irretrievable waste of Palmetto's very limited resources (along with the waste of other parties' resources) in preparing proposed findings based on an incomplete record if,
as the Licensing Board said in reference to one issue, it will "in effect quite likely have to retry the matter." This is a waste of everyone's time and effort, but it must be undertaken to avoid further prejudicing one's position, even though the record might ultimately have to be re-opened.
Beyond this, there is another irreparable harm to Palmetto. If the Licensing Board is allowed to go ahead with its plan to close the record after receiving massive factual evidentiary submissions from Applicants and nothing from the other parties (except the staff on one issue), the record on which appeal is taken will probably contain many factual findings based on the skewed and incomplete factual record.
If the Appeal Board follows the usual practice on appeal, it will accord a substantial degree of deference to the Licensing Board's factual findings.
Thus, Palmetto could prevail on the legal issue that its discovery rights were improperly denied, and yet lose on a motion to re-open the record because the legal error would be viewed as harmless in light of the Licensing Board's factual findings based on the record as it then exists.
To avoid this " Catch-22" situation, actior, must be taken now. This is consistent with Commission precedent, which hold that a party "must make a reasonable effort to have a procedural error corrected, not hoard it for use as a ground of reversal in the event it does not like the ultimate decision on the merits." Public Service Co. of N.H. (Marble Hill Nuclear Generating Station, Units 1 and 2) ALAB-459, 7 NRC 159,189 (1978).
For these reasons, the second separate basis for directed certification and reversal has been met. Therefore, based upon each and upon both of those standards, Palmetto Alliance respectfully requests that the Atomic Safety and
Licensing Appeal Board direct the certification of the Licensing Board's '
denial of discovery by Palmetto on issues that it has declared to be relevant .
and on which it is allowing extensive factual evidentiary presentations by Applicant, and that the Appeal Board reverse that denial.
III. THE APPEAL BOARD SHOULD DIRECT THAT THE RECORD j REMAIN OPEN PENDING DISCOVERY BY PALMETTO l
i i It would be a Pyrrhic victory for Palmetto to be allowed discovery if 3
the Licensing Board were to close the record out from under Palmetto. And it is axiomatic that tribunals may exercise powers necessary to enforce their jurisdiction.
Therefore, Palmetto respectfully moves the Atomic Safety and Licensing Board to direct the Licensing Board not to close the record on the relevant factual issues until Palmetto has had a reasonable opportunity to engage in 4
discovery on those issues and to present the fruits of that discovery to the Licensing Board.
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IV. CONCLUSION i
l For'the reasons set forth above, Palmetto Alliance respectfully moves the Atomic Safety and Licensing Appeal Board to direct the certification of the Atomic Safety and Licensing Board's denial of discovery by Palmetto
, Alliance on the issues that the Licensing Board has declared relevant and on which it is allowing extensive factual evidentiary presentations by Applicant, that the Appeal Board reverse that denial, and that the Appeal Board direct m
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-12 the Licensing Board not to close the record on the relevant factual issues until Palmetto has had a reasonable opportunity to engage in discovery on those issues and to present the fruits of its discovery to the Licensing Board.
Respectfully submitted,
/f ,, E-7 j)A*_ 1, (
JobrtTewett, Esquire 236 Tenth Street, Southeast Washington, D.C. 20003 Telephone: 202/547-8323 Robert Guild, Esquire 2135h Devine Street Columbia, South Carolina 29205 Attorneys for Palmetto Alliance DATED: December 16, 1983 e
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00 METER
- w:
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
'83 DED 21 A9:59
) CCkEifkG I'shN 3 RANCH In the Matter of DUKE POWER COMPANY, et al. )
) Docket No. 50-413
) 50-414 (Catawba Nuclear Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " PALMETTO MOTION TO DIRECT CERTIFICATION OF LICENSING BOARD'S DENIAL OF DISCOVERY BY PALMETTO ON ISSUES, RAISED BY IN CAMERA WITNESSES, AS TO WHICH THE BOARD IS ALLOWING FURTHER FACTUAL TESTIMONY BY APPLICANT, AND TO REVERSE THAT DENIAL; AND PALMETTO MOTION TO DIRECT THAT THE RECORD REMAIN OPEN, UNTIL SUCH DISCOVERY CAN BE HAD" in the above-captioned matter have been served upon the following by deposit in the United States mail, first class postage prepaid, this 16th day of December,198S.
- Alan S. Rosenthal James L. Kelley, Chairman Chairman Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Soard Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Paul W. Purdom, Member Atomic Safety and Licensing Board
- Thomas S. Moore 235 Columbia Drive Atomic Safety and Licensing Decatur, Georgia 30030 Appeal Board U.S. Nuclear Regulatory Commission Dr. Richard F. Foster, Member Washington, D.C. 20555 Atomic Safety and Licensing Board Post Office Box 4263
- Howard A. Wilber Sunriver, Oregon 97702 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555
Chairman J. Michael McGarry, III, Esquire Atomic Safety and Licensing Debevoise and Liberman Board Panel 1200 - 17th Street, Northwest U.S. Nuclear Regulatory Commission Washington, D.C. 20036 Washington, D.C. 20555 Karen E. Long Chairman Assistant Attorney General Atomic Safety and Licensing Appeal North Carolina Department of Justice Board Panel Post Office Box 629 U.S. Nuclear Regulatory Commission Raleigh, North Carolina 27602 Washington, D.C. 20555 Scott Stucky George E. Joh6 son, Esquire Docketing and Service Section Office of the Executive Legal Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Don R. Willard Albert V. Carr, Jr., Esquire Mecklenburg County Duke Power Company Department of Environmental Health Post Office Box 33189 1200 Blythe Boulevard Charlotte, North Carolina 28242 Charlotte, North Carolina 28203 Richard P. Wilson, Esquire Martin G. Malsch Assistant Attorney General Deputy General Counsel and State of South Carolina Acting General Counsel Post Office Box 11549 U.S. Nuclear Regulatory Commission Columbia, South Carolina 29211 Washington, D.C. 20555 1
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