ML20132E445
| ML20132E445 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/29/1985 |
| From: | Roisman A Citizens Association for Sound Energy, TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#385-047, CON-#385-47 OL-2, NUDOCS 8508010815 | |
| Download: ML20132E445 (13) | |
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W M CORRESPONDEng 00'XETED U9tHC July 29, 1985
'85 Al]G -1 A10 :37 GFRr? C SECRETA 300_Tnc
- 1Env, UNITED STATES OF AMERICA E
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket Nos. 50-445-2 TEXAS UTILITIES GENERATING
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and 50-446-2 COMPANY, et al.
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(Comanche Peak Steam Electric
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Station, Units 1 and 2)
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MOTION TO COMPEL RESPONSES TO INTERROGATORIES FILED JULY 3, 1985 By letter dated July 3, 1985, CASE advised Applicants that a previous informal discovery request (letter from A.
Roisman to R.
I Wooldridge (May 28, 1985) should now be considered formal.
By letter dated July 22, 1985, Applicants filed a letter which is apparently intended to be a formal objection to responding to the discovery request.
Although in the future we will take the position that if Applicants intend to file legal papers they should obey the Rules of Practice, inasmuch as they are 1.
The use of this informal discovery was at the express invitation of the Licensing Board. Applicants never responded to the request, formally or informally.
8508010815 850729 DR ADOCK 0500 5
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represented by counsel, we will on this occasion treat the letter as their full response to the discovery request in the nature of a blanket objection.
The essence of the Applicants' position if that because they have argued that Docket 2 is moot, all parties and the Board must act on the assumption that Docket 2 is moot until the Board rules to the contrary.
This novel legal theory has no support.
Unless and until this Board rules that Docket 2 is moot, it is not moot and all parties must operate on that assumption.
This Board implicitly followed that principle when on July 22 it issued an Order in both Docket 1 and Docket 2 requiring Applicants to respond to discovery related to the MAC Report.
Another line of flawed reasoning advanced by Applicants is that this Board has given them unfettered discretion to decide whether to answer a discovery request based upon Applicants' balancing of the risks and benefits.
That, of course, is not what the Board ruled.
This Board imposed on Applicants a duty to
" respond to discovery requests that are likely to survivo regardless of what the Staff does."
It did not state, or even imply, that Applicants were free to make this decision on their own although this Board may have hoped that Applicants' application of the standard and request for relief from discovery would reflect a more forthcoming attitude.
Thus it is the duty of Applicants to seek leave from this Board to avoid responding ;
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to discovery.
Unless and until that request is accepted, the duty to respond pursuant to the Rules of Practice remains.
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There is a second reason why Applicants' attempt to avoid responding.to the July 3 discovery under the aegis of the May1
.30th Order must fail.
That Order addresses only Docket 1 discovery.- The February 15 protective order addresses only Docket 1. There is no such restriction on Docket 2.
In addition, i
i by its terms, the February 15 Protective Order expires "[o]ne i
month after the last Staff filing" which was SSER 11, filed sometime before June 6, 1985 (the date of the Board J
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i, Notification). Thus there is now no Protective Order and the provisions of the May 30th Order interpreting that-Protective Order.are -- dare we say -- moot.
There are serious equitable considerations 1which s';rongly favor requiring Applicants to respond to discovery now.
On January 16 of this year Applicants, by ex parte communication with the Board Chairman from Mr.-Wooldridge,fsought and obtained a temporary cessation of the^ hearings in Docket 2 until the first I
of March. The alleged purpose of that request was to allow Applicants to digest and prepare to respond the TRT findings.
There was no indication that the purpose of the temporary halt l
was to permanently end Docket 2 and we are confident that if this i
hidden agenda had been revealed at that time, the requested halt would not have been granted.
Throughout the hearings,'as l
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e evidence developed the Board, either sua sponte or at the request of CASE, allowed discovery, particularly document production.
Applicants' ploy was to stop this damage to Applicants' process (e.g. the fallout from discovery of the liner plate travellers),
and then try to halt Docket 2 in its entirety.
At a minimum Applicants hoped to obtain control of Docket 2 by halting the flow of damaging information to CASE. Now we see the intended fruits of their labor.
The mootness allegation, filed after a several month discovery black-out in Docket 2, is itself used as a basis for preventing discovery to which CASE had, as of January 16, and still has, a right.
However, Applicants went further in their deception.
They sought further time extensions and hearing postponements based upon the purported need for their new counsel, Ropes & Gray, to become familiar with the case.
But where is Ropes & Gray? Except for responding to CASE's Motion for Establishment of an Evidentiary Standard and having their name appear, without signature, on some but not all filings, Ropes & Gray is gone, their apparent usefulness as a justification for delay now over.
Or did Applicants discover that they had another O.B. Cannon?
Regardless, the Ropes & Gray gambit was more misrepresented justification for more postponement of hearings and discovery.
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It would be unconscionable for this Board to now reward the l'
shenanigans of Applicants by allowing them to obtain a stay of discovery in Docket 2 until resolution of the mootness issue.
In fact, the discovery sought relates to evidence that bears directly on the issue of.nootness.
If the existence of the CPRT arguably moots Docket 2, CASE is surely entitled to know fully what the CPRT is, who is running it and their character and competence.
It is surely not possible that just any CPRT would moot Docket 2 or that any mea culpa would be sufficient.
CASE is entitled to discovery to test that question even if we accept the Applicants' premise (which we do not) that Docket 2 could be moot solely on the basis of a CPRT and a mea culpa.
As this Board ruled in its May 24th Order, the character and competence of the current management could be " powerfully influence [d]" by their
" understanding of the plant condition and of prior management actions."
Order, Slip Op. 4. There are many of the old management in the current management, including most of the highest corporate executives.
What role did thes'e people play in advising various private and governmental bodies about the status of the plant that was inconsistent with the reality and/or with representation made to this Board and the Staff?
Answers to i
- 2. Our concern that someone employed by Applicants has misrepresented reality to other govenmental bodies is not idle speculation.
See the two attached documents prepared by DOE representatives which reflect 1) the concensus among observers at the hearings (on November 19-21) is that Docket 2 would be completed in a week in favor of Applicants (obviously no CASE observers were questioned) and 2) a January 28, 1985 DOE report l
t these questions will help to measure whether the CPRT is merely old wine in new botttles or, as Applicants would have us believe, a new vintage.
Surely CASE is entitled to know the answers to the pending discovery to help make its arguments on this point.
5 Finally, we want to stress that the frequently used argument that delaying discovery will not prejudice CASE because the Board will not allow the Applicants to use later time pressures to shorten CASE's time is not,.If it ever was, valid.
As we have i
seen, the six month delay in Docket 2 has allowed Applicants to seek to claim that a live docket is moot and to seek to foreclose j
discovery that would have been legitimate (even by Applicants' i
f theory) before the CPRT was filed.
That is, if Applicants I
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succeed here, an irreversible injury.
Moreover, as Applicants' Case Management Plan reflects, Applicants are still setting schedules for CASE based on the unrealistic asumption that CASE i.
can match Applicants in numbers of lawyers.
Since Applicants act l
as though they can still lay down 30-day response schedules after 3
l taking six months to prepare their filing, this Board should stop i
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accepting the fiction that CASE is not being prejudiced by j
i postponement of what it seeks.
Just responding to Applicants' r
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.t that reflects a number of inaccuracies communicated by Applicants j
regarding Applicants' expected resolution of TRT issues and its fuel loading schedule (see letter from R. Wooldridge to P. Block dated January 30, 1985 noting indefinite postponement of the fuel l
load application).
Apparently Applicants are not the only ones reporting false hopes to DOE as the final paragraph of the l
January 28 DOE memo reflects.
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endless parade of unrealistic deadlinesLis prejudice enough.
For all these reasons we urge the Board to direct Applicants to respond to the July 3 CASE discovery in Docket 2 by August 2, the required due date.
This will enable CASE to factor in some of the. data in its response to the Staff filing of August 2.
Repectfully submitted, O
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Anthony Z.
Roisman
/ INK Billie Pirner Garde Trial Lawyers for Public Justice 2000 P Street, N.W.
Suite 611 Washington, D.C.
20036 202 463-8600 Counsel for CASE 1.
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Feport of Ata-ic Safety and Licensing Boani Hearing N
on the Ctranche Peak reactor
.'IW days of, at times, excrutiatingly detailed hearirgs before the NBC's Atattic Safety and Licersing Board (ASLB) have certainly produced the legal equivalent of sound and fmy. hhat is uncertain at this stage of the proceedings is
- 4 ether this sound aM fm,j signifies nothing, i
At issue is Wether a quality matrol inspector hired by Texas Utilities ccrpany (7UCO) had been harrased ard intimidated into changing a highly critical irspc< tion report he r.ade of paint coatire proed2res at 'IUCD's caranche Peak nuclear reactor under constraction near Dallas.
i Tne fcnal point of this prcceeding is a trip report written by Joseph IJpinsky, a l
senior quality control expert of Oliver B. Cannon and Sons. Tne Cannon fir:n had
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been retained bi TsCO to look into paint coating problers at the Car.anche Peak construction site.' Lipi-sky visitcd the site for three days and was highly I
critical of the paint coatire and q;ality cont 2r1 documntation proedares of TUCO's ccnstruction contractors. At one point in his report, Wich was interded for internal use only but was subsequently leaked by unkncwn parties, Lipinsky I
likened the q;ality control probicrs at Ctranche Peak to those at the now abandoned Zi:mer plant in Ohio.
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The soecter of a nultibillion dollar atand:: rent at Cttranche Peak, as was the case t
at Zimer, caused no small degree of constemation among 'IUCO officials. D: charges i
betwen 7UCO and O. B. Cannon senior officials developed into a series of reetines, scne involvirs Lipirsky, in which the implications of the report were discussed.
A fcrar unth impasse transpirai daring which Lipinsky refused to sign af faciivits j
charactericing his q;ality control' assertions in a light rcre favorable to the utility. Ulti ately, Lipinsky signsi an affadavit stating he was satisfied with i
the gaality centrol procedures. That affadavit is the focus of today's hearing.
l In it, Lipinsky, in a carefully wonied statmentj stated his opinion was based on l
uncorretorated assurances by 'IUCD officials that the procedures were in fact i
folle m i.
O. B. Can:en head Patert B. Foth stated this af tenoon that he had held extersive discussions of the Lipinsky report with the author and with 'ILKD officials. Both l
characterizcd *.ipinsky as an b:r.est ran but stated that Lipinsky's asserticas that paint q;31ity staabnis coald never lo achieved with ut a crrplete rc..urk -
were inax.: rata biscd on Foth's 20 years of c:qerience in the field. Path notcd that Lipinsky sdsegacntly acceptcd 7UCt' representations that appropriate staadards were ret. Ca.~n:n cfficials J.-rel it outsid2 the scope of their contract with WCO to verify that prccMarca ware in fact fellowd.
Path roted that n.rerous other audit.t of paint gaality had tc-2n carried out at WCO's request a:vi that O. B. Can:On'; position was' tint if SUW is satisfial, Ca:.non is satisfitd.
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'Ihe ec:.sensus a crg the ch:crvers at the hearing is that the intiridation a-d harrammt -l.ase cf the proce..iirgs vill b2 setticd in SUCO's favor r ut wc-2k.
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he paint coatings issue is significant because widespread paint flaking during a reactor anergency could conceivably cics vital croling ducts.
Indep2ndant investigations by 1.K staf f and others have sha.m that 40it of the paint samles listed failed appropriate tests. @c agency's final report on this ratter is due later this week.
Inf t to be resolvcd are such intriguing questions as Scv could the utility desi.jn the walls of the contro1ror. to withstand pralicted earthpakes and fail to note the possibility that parts of the ceiling could break 1cese aat endanger the reactor op2rators who would have to ran the controls during a seis-ic event.
h% staff and interested parties fel hearings to dete mine if Cmanche Fcak is suitable for limnsina will run into the seiner of 1985. Observers esti~ ate t'.at Cmanche Peak will inbar $750,000 in interest e.qcase for each day its startup is delayed once construction is tu_lete.
Action officar: Fred Tath. ell 252-2764 I
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Department of Energy Washington, D.C. 20585 January 28, 1985 NOTE TO:
The Secretary Deputy Secretary
Subject:
Status of Comanche Peak Licensing The Comanche Peak 1 nuclear power plant, owned by Texas o
Utilities (TU), has been under intense scrutiny by the NRC for the past six months.
In order to respond to approximately 700 safety allegations, the NRC formed a Technical Review Team (TRT) to conduct an on-site investigation.
The inspection began in July 1984 and the results of the inspection were released to the utility on January 17, 1985.
This was the most detailed and comprehensive inspection by the NRC to date in response to allegations.
Comanche Peak has received considerable negative news 1
o coverage as a result of the allegations and NRC inspection.
The Government Accountability Project (GAP) has been very o
active in the licensing proceedings.
Tony Roisman of GAP represents the local intervenors, Citizens Association for Sound Energy.
The NRC met with TU on January 17 to discuss the results of o
the TRT report.
TU will respond to the report with a program to resolve the deficiencies identified.
TU's plan l
is expected to be finalized in March or early April with the resolution of issues to be concluded in, approximately, June.
o TU has retained new council to represent them.in the hearings on QA contentions which have been ongoing for over three years.
TU has stated that they would like continuation of these hearings to be delayed until March.
These hearings are expected to last until September 1985.
l At such time, the utility may receive a fuel-loading license.
Full-power operation of the unit is not expected before early 1986, about six months later than the last l
projection.
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. Although Comanche Peak has been receiving much adverse o
publicity, informal communication with involved NRC staff 1 eaves the strong impression that there are no technical or quality assurance difficulties with the plant that cannot be resolved and that there is no reason to expect that the plant will not be licensed.
o don L. Chi an, r.
Director, Task Force on Nuclear Power Plant Construction E. der'occo cc:
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J. Vaughan T. Carrish R. Odle J. McAvoy S. Britt S. Herod T. Werner i
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WWPOND4 July 29, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00LKETED BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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TEXAS UTILITIES GENERATING
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GFFICE OF SECRtTAu f 50-445 fCKEiggERVIO f
COMPANY, et al.
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Docket Nos.
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and 50-446-2 (Comanche Peak Steam Electric
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Station, Units 1 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 To Compel Responses To Interrogatories Filed July 3, 1985 have been sent to the names listed below this 29th day of July, 1985, by:
Express mail where indicated by *; Hand-delivery where indicated by **; and First Class Mail unless otherwise indicated.
i Administrative Judge Peter B. Bloch U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Herbert Grossman Alternate Chairman ASLB Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Kenneth A. McCollom, Dean Division of Engineering, Architecture and Technology Oklahone State University Stillwater, Oklahoma 74074 f
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Dr. Walter H. Jordan 881 W. Outer Drive Oak Ridge, Tennessee 37830 Ms. Ellen Ginsberg, Law Clerk U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Robert A.-Wooldridge, Esquire Worsham, Forsythe, Sampels
& Wooldridge 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 Nicholas Reynolds, Esgeire Bishop, Liberman, Cook, Purcell & Reynolds 1200 17th Street, N.W.
Washington, D.C.
20036 Stuart Treby, Esquire Geary S. Mizuno, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Renea Hicks, Esquire Assistant Attorney General i
Environmental Protection Division Supreme Court Building Austin, Texas 78711 Mrs. Juanita Ellis President, CASE 1426 S. Polk Dallas, Texas 75224
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-_n ANTHONY U. ROISMAN 4 k
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