ML20129G165
| ML20129G165 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/11/1985 |
| From: | Mizuno G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#385-823 OL-2, NUDOCS 8507170549 | |
| Download: ML20129G165 (8) | |
Text
RELATED CORRESPor$Dttwa, July 11,NcED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'85 JUL 16 P3:22 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 00CKETING & SERyla BRANCH In the Matter of
)
l Docket Nos. 50-445 50-446 TEXAS UTILITIES ELECTRIC COMPANY, et al.
)
)
Docket Nos. 50-445/2 (Comanche Peak Steam Electric
)
50-446/2 Station, Units 1 and 2)
)
NRC STAFF RESPONSE TO CASE'S MOTIONS FOR DISCOVERY ON THE MAC REPORT I.
Introduction CASE has filed a " 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" (June 24,1985) ('; CASE's Motion").1/
Attached to CASE's Motion is " CASE's Interrogatories to Applicants and Requests to Produce Re: the MAC Report and Issues Raised by the MAC Report" (" CASE's Interrogatories"). CASE's Motion requests that the Board hold immediate hearings on a 1978 report prepared by Management Analysis Company ("MAC") for Applicants, and on " issues raised by the MAC Report and recent reassignments / resignations of Applicants' management personnel." CASE's Motion, pp. 5, 6.
CASE proposes that such a hearing
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Although CASE'S Motion was filed in Docket 1, CASE has subsequently indicated that the information scught is " equally applicable to both dockets and should be produced in both Docket 1 and 2."
June 24, 1985 letter from Anthony Roisman, Counsel for CASE, to Robert Wooldridge, Counsel for Applicants.
85071{0 g g50 50 45 Y*
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commence without the prefiling of testimony by Applicants or the NRC Staff (" Staff"), and that witnesses be sequestered and be ordered not to discuss their testimony.
M.,p.5.
In the alternative, CASE asks that immediate " evidentiary depositions" be held, with Judge Bloch presiding over the depositions. CASE's Motion, pp. 5, 6.
CASE proposes that witnesses be sequestered and be ordered not to discuss their testimony.
M.,p.5.2_/
CASE finally suggests that if these two alternatives are rejected by the Board, that CASE be permitted to conduct discovery on an expedited basis, as permitted by 10 C.F.R. QS 2.740b(b) and 2.741(d).
CASE's Motion, p. 6.
Immediate action on these alternatives is necessary, according to CASE, because of the possibility that " key individuals involved will be moving on to other jcbs and other locations, and therefore may not be available for testifying / depositions of a later time."
,I d.
II. Background On May 29, 1985, Applicants filed a letter informing the Board and parties that Applicants had discovered a 1978 report prepared by Manage-ment Analysis Company (the "MAC Report"). 3_/ The MAC Report was provided to the Board and parties as an attachment to Applicants' May 29, 1985 l
letter. Also attached to Applicants' May 29, 1985 letter is a July 11, l
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CASE also asks that the hearings / depositions be held in Dallas or Fort Worth. CASE's Motion, p. 6.
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May 24, 1905 Letter from Robert Wooldridge, Counsel for Applicants, to Atomic Safety and Licensing Board.
0,
1978 Office Memorandum from R.J. Gary and L.F. Fikar to Perry Brittain, which sets forth the Applicants' response to the concerns identified in the MAC Report. The MAC Report appears to summarize the findings of a two-week audit by MAC of the Applicants' Quality Assurance ("QA") program for CPSES. Nine (9) areas of concern were identified by MAC, including problems with the design control ("DC") system, QC inspection instruc-tions and checklists, timely disposition of nonconforming items, and qualifications and training of QC personnel.
On June 12, 1985, Applicants transmitted a second letter S o the t
Board and parties, which discussed the Applicants' failure to provide CASE with the MAC Report during discovery, and the circumstances surround-ingtheApplicants'rediscoveryoftheMACReport.El CASE's Motion was filed on June 24,1985.5/ On June 28, 1985 Appli-cants' counsel, Mr. Wooldridge, transmitted a letter to Chairman Bloch stating that Applicants' counsel had no reason or basis to believe that by allowing Applicants the full time to respond to CASE's Motion, "any relevant evidence (either documents or potential witnesses) relating to
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June 12, 1985 letter from Robert Wooldridge to the Atomic Safety and Licensing Board.
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In a June 13, 1985 Memorandum the Staff has requested the NRC Office of Investigations ("01") to investigate TUGC0's withholding of the MAC Report. See Roard Notification 85-067 (June 28,1985).
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On June 26, 1985, Chairman Bloch informed Staff counsel that any Staff response to CASE's Motion be filed by July 1, 1985, since the Board intended to issue a decision on CASE's Motion on July 2, 1985.
Subsequently, on June 28, 1985, Chairman Bloch informed Staff counsel that, based upon representations by Applicants' counsel, the Staff and Applicants would be afforded the normal time for response to CASE's Motion.
T the matter of the MAC Report will be rendered unavailable for any appro-priate legal review process."
III.
Discussion CASE's request that immediate hearings or evidentiary depositions be held on the MAC Report appears to be based upon CASE's apprehension that potentially relevant evidence on the MAC Report may become unavail-able, and that certain individuals will be moving at1d therefore become unavailable for testifying either at discovery depositions or at hearing.
See, e.g., CASE's Motion, pp. 4, 6.
Applicants' counsel has represented to the Board and parties that he:
had no reason or basis to believe that by allowing Applicants the full time to respond to CASE's June 24, 1985 motion for discovery.... any relevant evidence (either documents or potential witnesses) relating to the matter of the MAC Report will thereby be rendered unavailable for any appro-priate legal review process.
See, June 28, 1985 Letter from Robert Wooldridge to Peter Bloch. To assuage any concern that potentially relevant evidence is preserved, the Applicants should commit to preserving 'll documentary evidence on the a
MACReport.El Such a commitment will be sufficient to ensure that the status quo is maintained, and that the Board and parties will have the benefit of all relevant information should the Board find that evidence Z/
Although somewhat ambiguous, Applicants appear to have made such a commitment.
See " Applicants' Response in Opposition to CASE's Motion'for Immediate Hearings, Evidentiary Depositions, and/or Discovery Regarding the MAC Report" (July 8, 1985), in which Appli-cants, referring to this sentence in Mr. Wooldridge's letter,
" reiterate that commitment."
. y on the MAC Report is necessary for a decision. With regard to CASE's concern that individuals with possibly relevant information may be leaving the company and therefore be unavailable for discovery deposi-tions or hearings, the Staff notes that discovery of any individual with information relevant to a licensing decision may be had under 10 C.F.R.
is 2.740 and 2.740a. Moreover, the Atomic Safety and Licensing Board has the authority, pursuant to 10 C.F.R. QS 2.718(b) and 2.720, to issue subpoenas requiring the testimony of individuals.
In summary, the Staff concludes that the need for immediate hearings or evidentiary depositions has not been adequately demonstrated by CASE.
With regard to CASE's request for discovery on the MAC Report, the Staff points out that the MAC Report is not currently identified as an issue in controversy in this proceeding, and CASE's Motion does not discuss either the relevance of the MAC Report to those issues or the independent significance of the MAC Report to Contention 5.
Accordingly, CASE is not entitled to discovery on the MAC Report unless it shows the relevance of the MAC Report to already-identified issues, or the independent significance of the MAC Peport to Contention 5.
See 10 C.F.R. $ 2.740(b); Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), LBP-77-13, 5 NRC 489 (1977). The Staff notes that Applicants have filed a Management Plan E which sets forth the Applicants' current position as to what issues, now in contention in this proceeding, need to be resolved, and which issues are moot, together with a statement of basis for their position. The MAC
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" Applicants' Current Management Views and Management Plan for Resolu-tion of All Issues (June 28,1985).
9 Report and the circumstances of its withholding and subsequent release have not been directly discussed by Applicants in their Management Plan. El If CASE believes that the MAC Report is either relevant to currently admitted issues or has independent significance, the Staff submits that CASE's position on this matter and the reasons for its position should be presented in its response to Applicants' Management Plan. The Staff will consider the question of relevance of the PAC Report in its response to Applicants' Management Plan. The Board should not permit discovery on the MAC Report until all parties' positions are filed with the Board, and the Board finds that the MAC Report is either relevant to currently-admit +ed issues, or has independent significance to Contention 5.
IV. Conclusion For the reasons set forth above, the Board should deny those portions of CASE's Motion which request immediate hearings or evidentiary depositions, and defer ruling on that portion of CASE's Motion requesting discovery.
Respectfully submitted,
^
Ga S. Mizuno ouns for NRC Staff Dated at Bethesda, Maryland this lith day of July, 1985
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Applicants only discussion of the PAC Report is a statement that the failure to disclose the MAC Report is an indication of the " lack of appreciation of nuclear power regulation." Applicants' Management Pl a n, p. 15, n.14.
Applicants have now set forth their views on the relevance of the MAC Report to the existing issues in this proceeding in their " Response in Opposition to CASE's Motion for Immediate Hearings, Evidentiary Depositions, and/or Discovery Regarding the MAC Report" (July 8, 1985).
e DOCKETED i
USMC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'85 JJ.16 P3 :22 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFICE OF SECRt.iAF -
00CKETING & SEPvlCL BRANCH In the Matter of
)
Docket Nos. 50-445 TEXAS UTILITIES ELECTRIC 50-446 COMPANY, et al.
)
Docket Nos. 50-445/2 (Comanche Peak Steam Electric
)
50-446/2 Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO CASE'S MOTIONS FOR DISCOVERY ON THE MAC REPORT" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this lith day of July, 1985:
Peter B. Bloch, Esq., Chairman
- Mrs. Juanita Ellis Administrative Judge President, CASE Atomic Safety and Licensing Board 1426 South Polk Street U.S. Nuclear Regulatory Commission Dallas, TX 75224 Washington, DC 20555 Renea Hicks, Esq.
Dr. Kenneth A. McCollom Assistant Attorney General Administrative Judge Environmental Protection Division Dean, Division of Engineering P.O. Box 12548, Capital Station Architecture and Technology Austin, TX 78711 Oklahoma State University Stillwater, OK, 74078 Nicholas S. Reynolds, Esq.
William A. Horin, Esq.
Elizabeth B. Johnson Bishop, Liberman, Cook, Administrative Judge Purcell & Reynolds Oak Ridge National Laboratory 1200 17th Street, N.W.
P.O. Box X, Building 3500 Washington, DC 20036 Oak Ridge, TN 37830 Billie Pirner Garde Dr. Walter H. Jordan Citizens Clinic Director Administrative Judge Government Accountability Project 881 W. Outer Drive 1901 Que Street, N.W.
Oak Ridge, TN 37830 Washington, DC 20009
a y Herbert Grossman, Alternate Chairman
- Mr. W. G. Counsil Administrative Judge Executive Vice President Atomic Safety and Licensing Board Texas Utilities Generating Company U.S. Nuclear Regulatory Comission 400 North Olive Street, L.B. 81 Washington, DC 20555 Dallas, TX 75201 Ellen Ginsberg, Esq.*
William L. Brown, Esq.
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission 611 Ryan Plaza Drive, Suite 1000 Washington, DC 20555 Arlington, TX 76011 Robert A. Wooldridge, Esq.
Lanny Alan Sinkin Worsham, Forsythe, Samples 3022 Porter Street, N.W., #304
& Wooldridge Washington, DC 20008 2001 Bryan Tower, Suite 2500 Dallas, TX 75201 James T. McGaughy Southern Engineering Co. of Georgia Mr. James E. Cummins 1800 Peachtree Street, N.W.
Resident Inspector / Comanche Peak Atlanta, GA 30367-8301 Steam Electric Station c/o U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board P.O. Box 38 Panel
- Glen Rose, TX 76043 U.S. Nuclear Regulatory Comission Washington, DC 20555 William H. Burchette, Esq.
Mark D. Nozette, Esq.
Atomic Safety and Licensing Appeal Heron, Burchette, Ruckert Board Panel
- 8 Rothwell U.S. Nuclear Regulatory Comission Suite 700 Washington, DC 20555 1025 Thomas Jefferson Street, N.W.
Washington, DC 20007 Docketing and Service Section*
Office of the Secretary Robert D. Martin U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comission Washington, DC 20555 611 Ryan Plaza Drive, Suite 1000 Arlington, TX 76011 Robert A. Jablon, Esq.
Spiegel & McDiarmid Anthony Z. Roisman, Esq.
1350 New York Avenue, N.W.
Trial Lawyers for Public Justice Washington, DC 20005-4798 2000 P Street, N.W., Suite 611 Washington, DC 20036 Joseph Gallo, Esq.
Isham, Lincoln & Beale Suite 8401120 Connecticut Avenue, N.W.
Washington, DC 20036
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Staff I