ML20127K327

Notification & Motion for Discovery,Hearings & Evidentiary Depositions Re Mgt Analysis Co 1978 Rept,Which Should Have Been Provided to Case in 1980.Issues Raised Constitute New Info.Certificate of Svc Encl.Related Correspondence

ML20127K327
Person / Time
Site:	Comanche Peak
Issue date:	06/24/1985
From:	Ellis J Citizens Association for Sound Energy
To:	Atomic Safety and Licensing Board Panel
References
CON-#285-588 OL, NUDOCS 8506270373
Download: ML20127K327 (9)

Text

___- _____ ____- ,

fSlf '

W CORRESPONDENCL 6/24/85 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 000 KE TEP' USNRC In the Matter of l Docket Nos. 50-445 l

TEXAS UTILITIES ELECTRIC l and 50-446*85 dlN 26 Pl2 COMPANY, et al. Q l (Application for AdT:CE cr sicat fg (Comanche Peak Steam Electric i Operating LicensppCXETING & SEf<vir.r Station, Units 1 and 2) l BRANCH BOARD NOTIFICATION AND ,

e CASE'S MOTIONS:

FOR DISCOVERY REGARDING THE MAC REPORT AND ISSUES RAISED BY THE MAC REPORT AND/OR ,

FOR HEARINCS AND/OR EVIDENTIARY DEPOSITIONS On May 29, 1985, Applicants filed a letter and attachments informing the Board that Applicants had discovered a 1978 report which they should have provided to CASE in 1980 in response to our interrogatories and requests for documents. On June 12, 1985, Applicants supplemented their May 29 letter with additional representations. None of the representations by Applicants' counsel were supported by affidavit. The report, prepared by Management Analysis Company (MAC) (hereinafter referred to as the MAC Report), Applicants' response to the MAC Report, the circumstances under

.which it was provided, representations of Applicants' counsel, information and references contained in the MAC Report and/or Applicants' response to it, and issues raised by this matter, constitute new and significant information and, as such, are grounds for discovery.

8506270373 850624 PDR ADOCK 05000445 0 1

The implications of this management review and audit of the quality assurance program at Comanche Peak, and Applicants' response to it, are numerous and important. Many of them go directly to the heart of the commitment of Applicants' management to quality and the adequacy of management over the design and construction process, and, as such, are subject to discovery.

Representations of Applicants' counsel, the MAC Report itself, and Applicants' response to the Report, indicate that many key individuals were aware of this Report (including several of Applicants' witnesses who have testified in these proceedings, as well as upper management, including Perry Brittain, Chairman of the Board and Chief Executive Officer of Texas Utilities Company and a Director of one of its subsidiaries, Texas Utilities Electric Company, which is the primary Applicant in these proceedings).

Knowledge of the existence of, but failure to acknowledge, this report may constitute misleading testimony (perhaps even material false statements) on the part of one or more of Applicants' witnesses in these proceedings.

The deliberate withholding of this important evidence may constitute obstruction of justice. Certainly CASE should be allowed the opportunity to examine these possibilities through discovery. The credibility of witnesses and the accuracy of representations by counsel have long been recognized as an integral part of these proceedings /1/, and some issues have already been f1/ CASE's See, for instance:

8/22/83 Proposed Findings of Fact and Conclusions of Law

. (Walsh/Doyle Allegations),Section XXVII; the Board's 3/15/84 Memorandum (Clarification of Open Issues) at page 20, 00; the Board's 11/7/84 Memorandum (Rejection of Misleading Filing);

the Board's 12/18/84 Memorandum (Concerning Welding Issues),

especially pages 1, and 8-19; (continued on next page) 2

-l

1 closed based on the Board's acceptance of affidavits / testimony of some l

. witnesses /2/.

i In addition, this entire matter raises questions regarding document retrievability, prompt identification and correction of deficiencies, and Applicants' commitment and adherence to other requirements of 10 CFR Part 50, Appendix B. Further, CASE should be allowed to pursue certain other new or previously unknown information, as set forth in the attached interrogatories and requests to produce, which is referenced or discussed in the MAC Report.

Also, CASE takes this opportunity to notify the Board that it is CASE's belief that Applicants are still withholding relevant and material information from the Board, specifically:

1. In their June 12 letter, Applicants state that "Mr. Fikar has announced his retirement from the company. As of July 1, 1985, he will no longer be a part of TUGC0 management." +

While this may be true, CASE believes that it is also misleading by omission. It is CASE's understanding that, prior to his announced retirement, Mr. Fikar was reassigned to non-nuclear duties on or about May 1, 1985. (This is one of the questions raised in CASE's attached discovery requests.)

/1,/ (continued from preceding page) the Board's 12/19/84 Memorandum (Reopening Discovery; Misleading Statement);

the Board's 12/21/84 Memorandum (Standards Applicable to Pending Motions, at page 2); and s CASE's 6/10/85 Answer in Opposition to Applicants' 6/10/85 Motion to Extend Time, at pages 3 and 4).

4

/ 2,/ See the Board's 3/15/84 Memorandum (Clarification of Open Issues) at:

page 9, L.; page 10, M. and N; page 13, U; and page 16, Y and Z.

i 3

2. It is CASE's understanding that Mr. Gordon Purdy is no longer 1

employed by Applicants at Comanche Peak, and that he resigned effective the week of June 10, 1985. (Applicants did not mention whether or not Mr. Purdy was also aware of the MAC Report; this is one of the questions included in our attached discovery requests.)

These two changes in management along with previous changes raise questions about the timing of Applicants' various reassignments and the resignations of key management personnel, whether or not such reassignments and/or resignations were tied to the rediscovery of the MAC Report and its implications, etc. Further, this raises questions regarding compliance by Applicants' counsel and representatives with the Board's previous admonitions that they should inform the Board promptly of potentially significant matters. Although Applicants' June 12 letter states that "We also will reiterate Applicants' obligations in this regard to those who have responsibility to provide information to the NRC and to the parties,"

Applicants' counsel and representatives have been under Board Order in this regard since 1981, as a review of the record demonstrates f3/.

CASE also takes this opportunity to put the Board and parties on notice that it is our intent, should discovery substantiate that it is warranted, to call for sanctions against Applicants for their failure to have previously provided the MAC Report.

/3/ See: Board Order of October 20, 1981; December 1, 1981, hearing transcript pages 119-124, especially:

page 120, line 24, through page 121, line 7; page 122, lines 12-15; page 123, line 21, through page 124, line 6.

January 4,1983, Board !!emorandum and Order, pages 5 and 6.

4

Discovery vs. Hearings vs. Evidentiary Depositions CASE offers the following as our proposal for expeditiously ascertaining the facts regarding these important issues, while at the same time requiring a minimum amount of time from all parties for preparation and preserving the rights of all parties:

1. CASE believes that the issues raised by the MAC Report, recent reassignments and resignations of key Applicants' management personnel, and related matters would best be handled by immediate hearings, without prefiled testimony, with Applicants (and, if applicable, the NRC Staff) providing all witnesses (including key former employees), and with all witnesses sequestered and immediately ordered not to discuss the issues with anyone prior to their testimony.

2. Should immediate hearings be unacceptable to the Board for any reason, CASE believes that the next best alternative would be to have immediate evidentiary depositions, handled in the same manner as that held in the case of Everett Mouser in Docket -2 of these proceedings (wherein the NRC Staff held the deposition, with Judge Bloch presiding over it f4/).

As with the option of immediate hearings, Applicants (and, if applicable, the NRC Staff) should provide all witnesses (including key former employees), and all witnesses should be sequestered and immediately ordered aot to discuss the issues with anyone prior to their testimony.

/4/ However, CASE believes that it would be appropriate for Applicants to bear the costs of all such depositions, since the need for such depositions has arisen out of deliberate actions of Applicants and its management. In any event, CASE should not be penalized by having to bear the cost of depositions due to Applicants' deliberate actions.

5

3. The third (and, CASE believes, the least conducive to expeditiously and accurately ascertaining the facts regarding these-issues) would be to allow CASE discovery, as set forth in our attached discovery requests. If this option is chosen by the Board, we ask that it be had on what has become an expedited basis in these proceedings (i.e., on the timetable set forth in 10 CFR 2.740b(b) and 2.741(d)).

CASE believes that any of the three alternatives chosen requires immediate action, since there is a good possibility that some of the key individuals involved will be moving on to other jobs and other locations, and therefore may not be available for testifying / depositions at a later time. Further, expeditious handling will be less disruptive to such individuals and relieve Applicants of the additional paperwork involved with answering written discovery requests.-

In addition, CASE asks that hearings / depositions be held in Dallas or Ft. Worth.

In conclusion, for the reasons and in the manner discussed herein, CASE moves that the Board:

(1) Hold immediate hearings regarding the MAC Report and issues raised by the MAC Report and recent reassignments / resignations of Applicants' management personnel; (2) Order immediate evidentiary depositions regarding these matters; and/or (3) Grant CASE discovery as set forth in the attached discovery requests, on an expedited basis.

6

Respectfully submitted, J D - 2bv h]L

/ s.) Juanita Ellis, President ASE (Citizens Association for Sound l Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 cc: Service List t

5 1

3 i

1 i 7 i

- ,.-, , , - . - . , - m_ - -,my

@@MED DSLKETED USNGC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'85 JUN 26 Pl2:01 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of }{ f! S

• f0CK T (G bikL Ab

}{ BRANCH TEXAS UTILITIES ELECTRIC }{ Docket Nos. 50-445-1 COMPANY, et al. }{ and 50-446-1 (Comanche Peak Steam Electric }{

Station, Units 1 and 2) }{

CERTIFICATE OF SERVICE By my signature below, I hereby certify that true and correct copies of Board Notification and CASE's Motions: For Discovery Regarding the MAC Report and Issues Raised by the MAC Report and/or for Hearings and/or Evidentiary Depositions have been sent to the names listed below this 24th day of June ,198 _5 ,

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, Purcell 4350 East / West Highway, 4th Floor & Reynolds Bethesda, Maryland 20814 1200 - 17th St., N. W.

Washington, D.C. 20036

• Judge Elizabeth B. Johnson Oak Ridge National Laboratory

• Geary S. Mizuno, Esq.

P. O. Box X, Building 3500 Office of Executive Legal Oak Ridge, Tennessee 37830 Director U. S. Nuclear Regulatory

• Dr. Kenneth A. McCollom, Dean Commission Maryland National Bank Bldg.

Division of Engineering, 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 1

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. 20:55 Austin, Texas 78711 Mr.. Robert Martin Anthony Z. Roisman, Esq.

Regional Administrator, Region IV Trial Lawyers for Public Justice U. S. Nuclear Regulatory Commission 2000 P Street, N. W. , Suite 611 611 Ryan Plaza Dr., Suite 1000 Washington, D. C. 20036 Arlington, Texas 76011

?

Mr. Owen S. Merrill Lanny A. Sinkin Staff Engineer 3022 Porter St., N. W., #304 Advisory Committee for Reactor Washington, D. C. 20008 Safeguards (MS H-1016)

U. S. Nuclear Regulatory Commission Dr. David H. Boltz Washington, D. C. 20555 2012 S. Polk Dallas, Texas 75224 Mark D. Nozette, Counselor at Law Heron, Burchette, Ruckert & Rothwell Michael D. Spence, President Suite 700, 1025 Yhomas Jefferson St. , N.W.

Texas Utilities Generating Company Washington, D. C. 20007 Skyway Tower 400 North Olive St., L.B. 81 Robert A. Wooldridge, Esq.

Dallas, Texas 75201 Worsham, Forsythe, Sampels & Wooldridge 2500 - 2001 Bryan Tower Docketing and Service Section Dallas, Texas 75201 (3 copies)

Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Ms. Billie P. Garde Government Accountability Project 1901 Que Street, N. W.

Washington, D. C. 20009

-f ?A S) ?O)

,(Mrs.) Juanita Ellis, President CASE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 2