ML20093D374
| ML20093D374 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 10/06/1984 |
| From: | Ellis J Citizens Association for Sound Energy |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#484-391 OL, NUDOCS 8410110222 | |
| Download: ML20093D374 (8) | |
Text
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10/6/84 l
DOCKETED UStuRC l
UNITED STATES OF AMERICA ~
NUCLEAR REGULATORY COMMISSION
'84 DCT 10 Ali:j3 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD r M OF SEc t r.;
In the Matter of l
"DCCXETjflG 4 Sir n:,
.Ra ticu y-TEXAS UTILITIES GENERATING 1
Docket Nos. 50-445 b
COMPANY, et al._
l and 50-446-CQ l
L(Comanche Peak Steam Electric Station l
Station, Units 1 and 2) 1 CASE'S MOTION FOR BOARD TO REFUSE APPLICANTS' MOTION FOR
SUMMARY
DISPOSITION
- REGARDING TRIP REPORT OF J. J. LIPINSKY On October 2, 1984, CASE received Applicants' 9/29/84 Motion for Summary Disposition Regarding Trip Report of J. J. Lipinsky.
It is noteworthy that Applicants' Motion was filed, not in the intimidation
. portion of these proceedings, but in the other' portion. For the reasons stated herein, CASE (Citizens Association for Sound Energy), Intervenor herein, hereby. files this, its Motion for Board to Refuse Applicants' Motion for Summary Disposition Regarding Trip Report of J. J. Lipinsky.
The Board.is well aware of the background and details of the L1pinsky trip report (at this point, undoubtedly much more familiar than is CASE-President Juanita Ellis, CASE's primary representative in these proceedings excent for the intimidation portion). The Board is also aware of the fact that these proceedings have been basically broken up into two separate proceedings.-- the intimidation portion and the remaining portion n /. To avoid confusion, hereinafter in this pleading unless specifically H/ This occurred because of an apparent misunderstanding on the part of Mrs. Ellis, who would never have agreed to such a procedure had it been clear that such was intended, but who has to date accepted such procedure because it appeared that'she was the only one who did not understand it that way.
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stated otherwise, whenever CASE is referred to it should be construed to mean that part'of CASE which is involved in everything except the intimidation portion of the proceedings and for which Mrs. Ellis is the primary representative.
CASE is generally aware that there are also substantive issues being discussed.in the intimidation portion of the proceedings as an integral and necessary part of that issue. CASE's primary representative has been able
.to. assist in some small way by supplying documents when she became aware of some of the issues under discussion; however,.there is no doubt that there is other necessary documentation which could, should, and would have been
-supplied to-complete the record, had she not had to address all her time and energies to answers to Applicants' Motions for Summary Disposition and other matters, and had been more aware of the issues under discussion in the Intimidation portion of the proceedings.
She has not, in fact, even been able to fin,d the time to read the transcripts of the intimidation proceedings, much less take - the time to attend the intimidation ~ hearings.
The Board has ruled that the clock on CASE's responses to Motions for
' Summary Disposition will keep running and has not allowed Mrs. Ellis to deduct the weekend before or the time during the intimidation hearings, as has been'the usual practice for these proceedings. CASE ds, for all intents and purposes, currently engaged in the equivalent of hearings on the design /
design QA/QC issues.
It should also be noted that, although other CASE Board members (Dr.
and Mrs. Boltz)-have sporadically attended portions of the intimidation hearings, they did so only occasionally and as casual observers and certainly not with the understanding that they might be called upon later to 2
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provide-background.information necessary to answer a Motion for Summary Disposition.
Applicants had to have known that they were at least thinking of filing such a Motion for Summary Disposition. Had Applicants ever indicated to CASE's primary representative in 'the other-than-intimidation portion of the hearings that they had any intention of filing a Motion for Summary Disposition in that portion of the proceedings on matters which were under discussion in the intimidation portion, she would have insisted upon being given time to attend those proceedings. At a minimum, this would have afforded CASE the opportunity for argument regarding this matter -- in advance of hearings on those issues -- and the Licensing Board would probably have provid,,ed her with the opportunity to attend those hearings under such circumstances.- However, Applicants did not so indicate to Mrs.
-Ellis, and the Board has now been robbed of the opportunity to have made that decision in advance of hearings, and Mrs. Ellis has now been robbed of Q
the opportunity to have attended pertinent'and material hearing sessions.
For these reasons, CASE's primary representative is not at all familiar even with who has testified in the intimidation portion of the proceedings, much less what their testimony was.
Although she is aware that the Vice President of 0. B. Cannon Company, apparently Applicants' Witness Brandt, and Board Witness Corey Allen have testified regarding intimidation /
protective coatings, and that the Dunham DOL transcript has been accepted, that is about the extent of her knowledge in this regard (except for brief general comments heard about the hearings and newspaper reports).
It would take quite a bit of time to obtain copies and review the necessary portions of the depositions / hearings transcripts to be able to adequately respond.
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Moreover, the intimidation portion of these proceedings is right in the middle of litigation, and it is Mrs. Ellis' understanding that the Licensing Board has just Lissued subpoenas for the President of O. B. Cannon Company and for Mr. Lipinsky. It is obvious that testimony pertinent and material
-to the issues discussed in Applicants' Motion for Summary Disposition Regarding Trip Report of J. J. Lipinsky (which includes an affidavit by Mr.
Lipinsky himself) hss already been developed in the intimidation portion of the proceedings, and that additional substantive testimony is likely to be developed during.the hearings, especially those at which the President of O.
.B. Cannon and Mr. Lipinsky testify.
Additionally, for-CASE to respond to Applicants' Motion for Summary Disposition would take valuable and limited time away from pleadings regarding the design / design OA/QC portion of these proceedings. Although there are no hearings presently underway regarding these matters, the back-
.and-forth written pleadings are in effect replacing hearings and should be so considered.
Applicants'. Motion will also obviously delay these proceedings, since (in addition to being allowed time to review-the record), it.will also be necessary for CASE President Juanita Ellis to attend the remaining hearings where O. B. Cannon representatives, Applicants' witnesses testifying rtgarding these matters, or other Board witnesses testify.
Further, it will be necessary to engage in discovery regarding many of the statements made in Applicants' pleading, a factor which would result in additional delay. Such discovery is absolutely essential since CASE does not intend to subpoena any present or former protective coatings OC inspectors to testify in future hearings on protective coatings; (and as far 4
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as we are; aware,Lthere isino provision under NRC regulations which would s
even" enable)usLto subpoena affidavits from such inspectors, even if we were.
inclinedIto do so, which we are not). I/2/
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~ Applicants could have avoided many'of these problems had they simply.
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' opened their collective mouth and advised Mrs. Ellis of their intentions.
i They;did not'. 'And they-should not now be allowed to use this to their own-r
' advantage and'to CASE's detriment.
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CASE does not believe that it is appropriate, under these circumstances,'to order'it to answer Applicants' Motion, and CASE moves that ithe Board refuse-Applicants' Motion under the provisions of 10 CFR 2.749(a),
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-which~ states,-in part:
.22/,.1r3thepast,wehavesimply.defaultedonrespondingtoApplicants' sMotions for Summary Disposition on other protective coatings matters when' the Board declined to allow us to obtain admissions and answers to
~ interrogatories from Applicants. We have made the decision that.we-will not jeopardizecthe current;or-future livelihood of any CASE twitnesses or have them jected to further intimidation and
- harassment, whether in hearings or by^ affidavit, by forcing them to
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icone forward againstitheir will, even if we were able to do so under a protective order or irl camera.
(Had there been any doubt regarding our
- decision in_this regard, that doubt would have.been removed by'the lunfortunate and unforgivable blunders of the NRC regarding the
. identification of CASE's Witness F in the intimidation' hearings.)
-To default on this issue, however, would be extremely prejudicial 4
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,to CASE and very'detimental to a complete. record on this important issue. On the other hand, we'do not intend to roll over'and' play dead-on 'the.Lipinsky Trip Report, and will attempt to comply with the' Board's^ orders as necessary to adequately address this issue.
3/f=It should also be noted that Applicants'_ Statement of Material Facts
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- Regarding Trip Report of J. J. Lipinsky As To Which There Is No Genuine
-.IssueLis not done in the~ usual format, in that there is' absolutely njt
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citation to any affidavit or attachment. This leaves CASE with the
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. additional chore of having to dig through what appears to be about 250 pages ' or so to determine the basis for 'each of ' Applicants' statements.
Although this may not be specifically1 contrary to NRC regulations, this
.is not the format which has been used before in these proceedings, and fit certainly. places an additional and unnecessary burden on this
-Intervenor.and'will require additional time, should-the Board rule that we must1 respond ~to Applicants' Motion.
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'"TheLBoard may dismiss summarily motions filed shortly before the-Thearing' commences or during the hearing if the other parties or the
' board.would be required to divert substantial resources from the
, hearing in order to respond adequately to the motion."
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-As-discussed herein, although there are not actually hearings under way regarding the design / design OA/QC issues, the procedure currently under way Lisstaking the-place of hearings, and should be treated as though hearings were ongoing, to which CASE is already devoting almost all of its' time.
'We also make this motion under the provisions of 10 CFR 2.749(c), which states,[inpart:
"Should it appear from tha affidavits of a party' opposing the motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition,'the presiding officer may refuse
- the application for summary decision or may order a continuance to permit' affidavits to be obtained or make such other order as is
-appropriate and a determination to that:effect shall be made a matter of. record." /4/
Respectfully submitted, j u E4, f/A L) ps.)JuanitaEllIs,' President CASE (Citizens Association for Sound Ener'gy) 1426 S. Polk L'
Dallas, Texas 75224 L
'214/946-9446 I
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./4/: Should the Board decline to accept Mrs. Ellis' representations herein.
please advise and she will supply a sworn affidavit.
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00CKETED USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIOrl84 OCT 10 All :13 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 06ChiffiNG & [ENI f In the Matter of
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BRANCH
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TEXAS UTILITIES ELECTRIC
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Docket Nos. 50-445-1 and -2 COMPANY, et al.
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and 50-446-1 and -2 (Comanche _ Peak Steam Electric
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Station, Units'I and 2,)
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' CERTIFICATE OF SERVICE By my signature below, I hereby certify that true and correct copies of CASE's Motion for Board to Refuse Appliants' Motion for Swanary Disposition Recarding Trio Report of J. ~J.
Lipinsky 6th October 4
have been sent to the names listed below this day of
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by: Express Mail where indicated by
- and First Class Mail elsewhere.
- Administrative Judge-Peter B. Bloch
- Nicholas S. Reynolds, Esq.
U. S. Nuclear Regulatory Commission Bishop, Liberman, Cook, Pu,rcell 4350 East / West Highway, 4th Floor
& Reynolds Bethesda, Maryland 20814 1200 - 17th St., N. W.
Washington, D.C.
20036
- Ms. Ellen Ginsberg, Law Clerk U. S. Nuclear Regulatory Commission
- Geary S. Mizuno, Esq.
4350 East / West Highway, 4th Floor Office of Executive Legal i
Bethesda, Maryland 20814 Director U. S. Nuclear Regulatory
- Dr. Kenneth A. McCollom, Dean Commission Division of Engineering, Maryland National Bank Bldg.
Architecture and Technology
- Room 10105 Oklahoma State University 7735 Old Georgetown Road Stillwater, Oklahoma 74074 Bethesda, Maryland 20814
- 'Dr. Walter H. Jordan Chairman, Atomic Safety and Licensing 881 W. Outer Drive Board Panel Oak Ridge, Tennessee 37830 U. S. Nuclear Regulatory Commission Washington, D. C.
20555
- Herbert Grossman, Alternate Chairman Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission 4350 East / West Highway, 4th Floor Washington, D. C.
20814 1
L.
" Chairman Renea Hicks, Esq.
Atomic Safety and Licensing Appeal-Assistant Attorney General Board Panel Environmental Protection Division U. S. Nuclear-Regulatory Commission Supreme Court Building Washington, D. C.
20555 Austin, Texas 78711 John Collina Lanny A. Sinkin Regional Administrator, Region ~-IV 114 W. 7th, Suite 220 LU. S. Nuclear Regulatory Commission Austin, Texas 78701 611 Ryan Plaza-Dr., Suite 1000 Arlington, Texas 76011
' Michael'D. Spence, President Dr. David H. Boltz Texas Utilities Generating Company 2012 S. Polk-Skyway Tower Dallas, Texas 75224 400 North Olive St., L.B. 81-Dallas, Texas 75201.
Docketing and Service Section Anthony Roissan, Esq.,
(3' copies)
Trial Lawyers for-Public Justice Office of the Secretary 2000 P St., N.W., Suite 611 U. S. Nuclear Regulatory Commission Washington, D. C.
20036 Washington, D. C.
20555 Ms. Billie P.'Carde
-Government Accountability Project 1901 Que Street, N. W.
Washington, D. C.
20009 LA~. -
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W ps.)JuanitaEllis, President UASE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 2