ML20099L407

Case Motion for Sanctions to Ensure Applicant Does Not Profit from Improper Tactics,Impose Punishment as Deterrence for Future Conduct & Thwart Applicant Effort to Isolate Liner Plate Incident to Unit 2

ML20099L407
Person / Time
Site:	Comanche Peak
Issue date:	10/18/1984
From:	Roisman A Citizens Association for Sound Energy, TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
To:	Atomic Safety and Licensing Board Panel
References
CON-#484-359 OL-2, NUDOCS 8412010114
Download: ML20099L407 (6)

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Octooer 18, 1984 CQVRip UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

,84 I7/ 23 P 2 33 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of ) u aCr

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

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l (Comanche Peak Steam Electric ) l Station, Units 1 and 2) )

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CASE'S MOTION FOR SANCTIONS DUE TO REPEATED UNTIMELY FILINGS BY APPLICANT It is a well-estaolished rule that an Atomic Safety and Licensing Board has the authority to impose sanctions for untimely filing oy a party. 10 C.F.R. 2.718 ( e ) . In this proceeding Applicant has f ailed to meet numerous deadlines for filing including:

' the deadline for Applicant's original pre-filed 1) testimony;

2) the deadline for filing Preliminary Proposed Findings of Fact;

3) the deadline for filing a orief on the issue of ^

attorney work product privilege with respect to OB Cannon documents; and

4) at least three deadlines for filing the testimony of Thomas Brandt with respect to the liner plates.

I412010114 841018 PDR.ADOCK 05000445 0 PDR T50" s _ _ . - - - -

In its most recent three failures to meet filing deadlines the Applicant has falso ignored accepted practice and common decency and has n,either sought nor obtained consent of the parties or permi$hion of the Board for their lack of diligence.

We Delieve it is now apparent that Applicant will continue such l dilatory tactics at least so long as no sanction is imposed l

against them for their conduct. Thus, we here seek an Order of this Board to impose the following sanctions with respect to the failure of Applicant to timely file the testimony of Thomas Brandt:

1) exclude the pre-filed testimony and any other evidence oy Applicant with respect to answering Intervenor evidence and allegations regarding discrepancies in

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the liner plate travellers;

2) allow Intervenor to supplement its filing of-Septemoer 27th within two days of the Board's action on this motion and require Applicant to pre-file any evidence or testimony in opposition ~ to the supplement and to do so within two days of receipt of CASE's filing;

3) allow Intervenor to extend the time for filing its proposed findings af ter receipt of Applicant's pf proposed findings Dy the 15 days Applicant missed its deadline; and --

4) require Applicant to produce for inspection the liner plate travellers for the Unit 1 reactor cavity and transfer canal, ,the fuel pool ouilding and the Unit 2

transfer canal, all of which are implicated oy the record to date in improper procedures and discovery -

as to which Applicant would resist as untimely.

Ooviously we could devote pages_ to the justification for any_

or all of such action, out frankly we feel it is clear that ApplicanthasflauhtedtheauthorityandordersofthisBoardand grossly aoused the administrative process. The most recent example serves to make the point. During the conference call on Octooer 11, 1984, Applicant's counsel assured the parties and. the Board that the Brandt testimony would De filed no later than Monday, Octooer ,15:

MR WATKINS: . . . As to the Brandt matter, I understand --

I am informed that approximately 125 pages of testimony will .De filed either tomorrow or later [ sic] than Monday.

[TR. 19,271]

The Board clearly indicated that it expected the filing no later enan Monday and Applicant's counsel agreed:

JUDGE BLOCH: Okay. Now the Brandt testimony will De filed either tomorrow or Monday, and it will De only 125 pages; is that right?

MR. WATKINS: Yes.

[TR. 19,273]

Counsel for CASE made clear his understanding that the filing was to De no later than Monday and no party suggested any contrary view:

MR. ROISMAN: ... The Brandt testimony day is next Monday at the latest.

4 (TR. 19,306) i Despite all of this, no filing was made on Monday, Octooer 15, no attempt to contact the Board or parties for an extension was made, a call f rom the Board Chairman and counsel for CASE on l

-<- l Monday to Applicant';s counsel was not returned and the delayed I filing was not accompanied Dy any explanation much less a motion for leave to file out of time. Were this Board possessed of a greater range of legal power such contemptuout conduct would and i should result in sucstantially more harsh penalties against Applicant and/or its counsel than those proposed here. See e.g.

Rule 37(D) of the Federal Rules of Civil Procedure.

It is not without significance that the untimely testimony now offered has Deen twice previously due and Applicant missed those deadlines without prior explanation and without leave of the Board. More importantly the filing which triggered the decision oy Applicant to file testimony was timely filed Dy CASE under an extremely short time schedule with great logistic inconvenience and thus was suostantially less thorough than it would have been had CASE, like the Applicant here, simply ignored its deadline and af ter several additional weeks filed its analysis. By its dilatory tactics Applicant has greatly prejudiced CASE Dy ootaining nearly three weeks to craf t its testimony in response to CASE when the schedule agreed to Dy all the parties -

contemplated three days.1/ Counsel for CASE made clear on the 1/ Applicant's of t expressed willingness to proceed with Mr.

Brandt as a live witness at any time is no answer to the points made here. First, Dy mutual consent all parties agreed to a pre-filing format. CASE had already articulated its concerns live and on the record. Second, having once accepted the oargain Applicant is not free to unilaterally ignore it. Third, Mr. i Brandt completed his " live" testimony on October 3 Dut Applicant I was unaole to deliver that live testimony until it had completed almost two weeks of editing, deleting and adding material.

Ooviously Mr. Brandt was not ready to appear " live".

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record that its agreement to quickly file its position and analysis of the travellers was contingent on Applicant equally quickly filing its response. Otherwise, Applicant would obtain a e

signiilcant and unwarranted advantage. They nave now taken that advantage witnout leave and should not De allowed to profit from r

it.

CASE offers several sanctions which we believe are readily availaole to the Board nere. We Delieve under the circumstances and in light of Applicant's consistent misconduct with respect to meeting deadlines, particularly deadlines to produce paper and information, all 5e sanctions should De imposed. Should the Board De unwilling to accept such an approach, we urge that it at i

least grant the last three sanctions proposed 1) to ensure that i f- Applicant does not profit from its improper tactics (allow CASE A further liner plate contentions), 2) to impose a punishment as deterence for future conduct (granting CASE at a later date the same amount of time Applicant improperly seized for itself at a time in the hearing process when it will De most useful to CASE and most unpleasant to Applicant) and 3) to thwart Applicant's i

ef fort to isolate the liner plate incident to Unit 2 when it clearly infects the entire plant.2j 2f As Mr. Brandt concedes in his pre-filed testimony (TR.

43,439), Applicant has yet to produce all the travellers signed l l Dy Susie Neumeyer and Fred Evans nor has Mr. Brandt conclusively 1

, determined that Ms. Neumeyer and Mr. Evans didn't sign travellers for the Fuel Pool Building as Ms. Neumeyer testified they did.

Given Applicant's anxiety over licensing Unit 1, these evasions may oe understandable although clearly unjustified. The Board has already ruled that documents signed by Ms. Neumeyer related

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to the liner plate incident De produced. (TR. 38,721-22)

[ cont'd.)

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l For the reasons stated we urge the imposition of the sanctions requested.

Respectfully suomitted, ,

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/ANTHONY Z. ~O N

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- ~-n s Trial Law for'Puolic Justice l 2000 P reet, N.W., Suite 611 Washington, D.C. 20036 (202) 463-8600 Counsel for CASE s

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2 cont'd/ To respond to that request, given Ms. Neumeyer's testimony that some of the travellers related to the Fuel Pool Building (TR. 59,526), Applicant must at least search those travellers-(or allow a CASE representative to do so) to determine whether other travellers exist relevant to the incident.

Applicant must also produce the remaining Unit 2 travellers signed oy Ms. Neumeyer and Mrs Evans referred to by Mr. Brandt in his pre-filed testimony. (TR. 45,439) 1 l

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