ML20134E853

Suppl to 850107 Motion Requesting Reconsideration of ASLB 841218 Memorandum (LBP-84-54) Re Welding Issues.Certificate of Svc Encl

ML20134E853
Person / Time
Site:	Comanche Peak
Issue date:	08/15/1985
From:	Ellis J Citizens Association for Sound Energy
To:	Atomic Safety and Licensing Board Panel
References
CON-#385-263, CON-#385-265 LBP-84-54, OL, NUDOCS 8508200488
Download: ML20134E853 (18)

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M5 8/15/85 Uti!TED STATES OF AMERICA fiUCLEAR REGULATORY COMMISSIO:1 BEFORE THE ATOMIC SAFETY AfiD LICEtiSIflG BOARD OXHETED "C

in the flatter of I Docket flos. 50-445CL.

l and 50-446 TEXAS UTILITIES ELECTRIC l 85 AUG 19 All :27 COMPAfiY,- ~~et al . l l (Application for an (Comanche Peak Steam Electric l Operating License)CFFICE 0: SEWil, Station, Units 1 and 2) l 00cnLTglich CASE'S 8/15/85 SUPPLEMENT TO CASE'S 1/7/85 MOTION FOR RECONSIDERATION OF BOARD'S 12/18/84 MEMORANDUM (CONCERNING WELDING ISSUES) (LRP-84-54)

In CASE's 3/19/85 Supplement to CASE's 1/7/85 Motion for Reconsideration of Board's 12/18/84 Memorandum (Concerning Welding Issues)

(LBP-84-54), we stated that we would be filing additional information (some of which we believed would be new and signficant). There is still additional information which we expect to file following further contact with the NRC Technical Review Team (TRT) to clarify a few matters, but there are two specific matters which we believe are especially important to get into the hands of the Board right away.

Board's Order at Page 10, last sentence of second paragraph; and page 59 and first full paragraph of page 60; re Welding of Misdrilled Holes In CASE's 1/7/85 Motion for Reconsideration f_1/ (pages 31-39) and briefly in our 3/16/85 Supplement g/ (bottom of page 32 and page 33),

CASE discussed staternents of the Board regarding its strong doubts both of the credibility of CASE Witness Henry Stiner and of his testimony.

Ll/ CASE's 1/7/85 Motion for Reconsideration of Board's 12/18/84 Memorandum (Concerning Welding Issues) (LBP-84-54) g/ CASE's 3/16/85 Supplement to CASE's 1/7/85 Motion for Reconsideration of Board's 12/18/84 Memorandum (concerning Welding issues) (LDP-84-54) 0500200408 H50015 PDH 0

ADOCK 05000445 PDR 1

, )

The Board stated, on page 10, last sentence of second paragraph:

"Mr. Stiner subsequently testified that he had performed 20 or 30 plug welds in a single day (Tr. 10699-70)."

The Board stated, on pages 59 and 60:

"The one overriding factor regarding the Board's decision involves Mr.

Stiner's incredible statement that a 1 1/4 inch hole in two inch thick material (on which he allegedly welded many times (Tr. 10683-84)) could be easily welded in about two minutes (excluding the blending of the weld with surface material (Tr. 10698-9)), and it would only require two weld rods to complete (Tr. 11158)." (First emphasis added; second emphasis in the original.)

"Mr. Stiner's sworn testimony on this point is not accurate and reliable. The board believes that any welder who had ever weld-repaired a misdrilled hole of this large size or smaller would hase been able to at least provide a response that was in the ballpark. In that Mr. Stiner was not able to do so, the Board questions whether Mr.

Stiner has ever performed a weld repair on a misdrilled hole. . ."

(Emphasis added.)

In CASE's 1/7/85 Motion for Reconsideration, CASE explained (pages 31 through 39) the correct interpretation of Mr. Stiner's testimony as CASE understood it and as it was explained by Mr. Stiner. As discussed therein, it appears to CASE that the Board has misinterpretted the testimony in the record regarding this matter.

However, CASE can understand that the Board might be reluctant to acceptsomecounsel'srepresentationsofthecorrectinterpretation/3,/.

Fortunately, it is not necessary for the Board to do so, because there is now new and significant information which fully supports and corroborates CASE's interpretation of the record, and which vindicates Henry Stiner's testimony and credibility.

/3/ The Board has good cause to doubt representations made by Applicants' attorneys, as discussed later in this pleading; however, CASE does not believe that it has given the Board reason to doubt its representations.

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It is important to remember the time frame during which the various events discussed herein occurred. CASE filed its Proposed Findings of Fact on Welding Issues on 9/9/84. The Board's Memorandum (concerning Welding i

Issues) was issued December 18, 1984.

CASE now calls the Board's attention to SSER No. 10 f4/, page N-57, regarding the TRT's investigation of " plug welding," as a}leged by Henry Stiner. In the next-to-last paragraph, last three sentences, it is stated:

"In a telephone interview with the alleger on September 10, 1984, the alleger clarified this allegation. The alleger stated that the number of electrodes used was only an estimate, and that such holes were

' capped' with a weld on either face and had slag and an air pocket in the middle. A ' plug weld' made in this manner woulld obviously require fewer electrodes."

Thus, on September 10, 1984 (the day after CASE filed its Proposed Findings), months before the Board's 12/18/84 Memorandum was issued and before Henry Stiner or CASE realized that the Board had misinterpretted the testimony in the record regarding this matter, Mr. Stiner explained to the TRT his method of " plug welding." His explanation at that time was consistent with the interpretation given by CASE in our 1/7/85 Motion for Reconsideration. The TRT's SSER No. 10 came out in April 1985.

CASE has not completed reviewing the several SSER's issued by the TRT in recent months; in addition, we have been involved with various other pleadings and matters relating to these proceedings. It was not until Mr.

Stiner recently called the statements by the TRT to CASE's attention that we realized their full significance.

NUREG-0797, Supplement No. 10, Safety Evaluation Report related to the f4/ operation of Comanche Peak Steam Electric Station, Units 1 and 2, Docket Nos. 50-445 and 50-446, April 1985 3

CASE submits that this new and significant information, especially when combined with the information contained in our 1/7/85 Motion for Reconsideration and its 3/16/85 and 3/19/85 Supplements, fully vindicates and supports Mr. Stiner and his testimony in this regard.

Further, since the "one overriding factor regarding the Board's decision involves Mr. Stiner's incredible statement" regarding the manner in which, and the time in which, he completed a " plug weld" (Board Memorandum at page 59, second paragraph), this clarification and substantiation of Mr.

Stiner's testimony should add credibility to any other testimony of his I which the Board questioned and go far towards establishing his overall l

credibility -- and correspondingly call into question the testimony of Applicants' witnesses.

However, CASE does not ask that the Board close the record and rule based on what is currently before it regarding the welding issues. There is much additional information already in the TRT's SSER's and expected to be in future SSER supplements which the Board should consider prior to closing the record on welding. We therefore again ask that the Board continue to hold the record open awaiting receipt of this additional information (although we must admit that we, and undoubtedly Mr. Stiner, would not be adverse to a ruling by the Board at this point reversing its previous ruling on this particular point).

Representations by Applicants' Counsel in our 1/7/85 Motion for Reconsideration (pages 7 through 19), CASE submitted information regarding what we consider to be deliberate violations by Applicants' counsel of the Board's specific orders.

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In reviewing some of the welding information in our files, additional support of CASE's position regarding the willful and deliberate misrepresentations by Applicants' counsel was found.

We call the Board's attention to the Board's Order at page 1 (which CASE asked the Board to reconsider in our 1/7/85 Motion for Reconsideration at pages 20 and 21). The Board stated:

. . . we find that Henry Stiner had a long-standing absentee problem at work and that he was discharged from the plant because of his absenteeism, not because he gave information to a OC inspector about a gouge ina pipe preceding the three day absence that precipitated his termination. . .

And in Applicants' 1/22/85 Reply to CASE's Motion for Reconsideration of Licensing Board's Memorandum (Concerning Welding Issues), Applicants counsel argued against CASE's Motion, stating:

" CASE alleges that the Licensing Board erred in finding that Mr. Stiner was discharged because of a longstanding absentee problem and not because he gave information to a OC inspector regarding a gouge in a pipe. Accordingly, CASE moves that this finding he stricken and the Board exclude its findings regarding Mr. Stiner's credibility f rom consideration concerning the issue of his terninntion. CASE's Motion at 20-21.

" Applicants maintain that the unrefuted evidence current 1v in the record and briefed by Applicants and CASE provides subAtantial evidence to support the Licensing Board's finding regarding Mr. Stiner's termination. See, e.g., Applicants' Proposed Findings at 3 and CASE's Proposed Findings on Welding Issues at 6-7 (September 9, 1984). For this reason the motion for reconsideration should be denied."

(Emphases added.)

CASE calls the Board's attention to Applicants' 8/30/82 Answer to CASE's Motion for Protective Order at page 5, second paragraph (copy of applicable portions are attached for the Board's convenience), where Applicants' counsel made the representation to the Boards 5

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"His (Mr. Stiner's) efforts to obtain his personnel records pre-date these hearings and therefore have no rational connection to them.

Further, as a former Brown & Root employee who van fired for unsatisfactory job performance (and not matters related to these hearings), Mr. Stiner's election to tentify in these hearings does not bring him within the scope of Section 210 of the Energy Reorganization Act." (First emphasis in the original; second emphasen added.)

CASE does not accept the representations by either Applicants' witnesses or of Applicants' counsel regarding the reasons alleged by Applicants for Mr. Stiner's firing. Whether or not the Board ultimately accepts Appiteants' reasons, however, the above representation by Applicants' counsel is inconsistent with the later sworn testinony of Applicant 9' own witnennes. It is a gross misrepresentation to the 1.icensing Board, and the Board should no rule.

CASE naks that the Board consider this in connection with CASE's 1/7/85 Motion for Reconsideration. Further, we ask that the Board take this and other misrepresentations of Appliennts' counsel into consideration in the overall context of these proceedings and in any future Board decintons as to whether or not to accept representationn of Applicants' counsel.

Respectfully submitted,

^

jt6 /{ {W/Eu Ajits.) Juanita Ellin, President

' CASE (Citizenn Association for Sound Energy) 1426 S. polk Dallas, Texan 75224 214/946-9446 6

UNITED STATES OT AMERICA 00D ETED NUCLEAR REGULATORY COMMISSION USNRC EEFORE THE ATOMTC SAFETY AND LICENSING E0ARD

'65 AUG 19 All :27 in the Matter of }{

II CFFit: Os 5't Ch i A TEXAS UTILITIES ELECTRIC }( Docket Nos. 50-445-1 00ChE. TING A SEFvlu COMPANY, et al. }{ and 50-446-1 BRANCH (Comanche PU k7 team Electric }(

Station, Units 1 and 2) )(

CERTIFICATE OF STRVICE By my signature below, I hereby certify that true and cerrect copies of CASE's 8/15/85 Supplement to CASE's 1/7/85 Motion for Reconsideration of Board's 12/18/84 Memorandum (Concernino l!eldinq !ssues) (LBP-84-54) have been sont to the naces listed below this 15th day of August ,,198 5 ,

by: EXpXXX)%%It share indicated by

• and First Class Mail cirewhere.

redoral r.xpress

• Administrativo Judge Peter E. Ele:h * !;ich21as S. Keyncids, Esq.

C. S. Nuclear Regulstsry C:nmission 11 shop, Literman, Cook, Iurcell 4350 East / Wast liighway, t4 h Tint 4 Feyncids tethesda, Maryland 0!i; 1 00 - 17 th I':, , !;. W.

Washington, D.C. 20036

• Judge Eli=abeth B. Johnson Cak Ridge !;atienal Laboratory

• Ceary S. Mi:uno, Esq.

P. O. Box X, Building 3500 office of Executive Legal Oak Ridge, Tennessee 37833 Director U. S. Nuclear Regulatory

• D r. ranneth A. !!ccollen Commission c/o t;oal M Collen . Maryland National Bank Bldg.

4051 Wlaosanker Way - Room 10105 Tert Worth, Texas 7(133 7735 Old Georgetown Road

. Bethesda, Maryland 20814

• Dr. Walter it. Jordan Chairman, Atomic Safety and Licensing ,

, 881 W. Outer Drive Board Panel Cak Ridge, Tannessoa 37330 U. S. Nuclear Regulatory Commission Washington, D. C. 20555

• Administrative Judge IIerbert Crossman U. S, Nucioar Regulatory Commission 4350 East / West liighway, 4th Floor Bethesda, Marylant 20814 I

Chairman Renes 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 Mr. Robert Hartin

• Anthony Z. Roisman, Esq.

Regions 1 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 Robert A. Wooldridge, Esq.

Worsham, Forsythe, Sampels William Counsil Vice President & Wooldridge Texas Utilities Generating Company 2001 Bryan Tower. Suite 2500 Skyway Tower Dallas, Texas 75201 400 North Olive St., L.B. 81 Dallas, Texas 75201 Thomas G. Dignan. Jr., Esq.

Ropes & Gray Docketing and Service Section 225 Franklin Street (3 copies) Boston, Massachusetts 02110 Office of the Secretary U. S. Nuclear Regulatory Commission Ms. Nancy H. Williams Washington, D. C. 20555 Project Manager Cygna Energy Services Ms. Billie P. Garde 101 California Street, Suite 1000 Government Accountability Project San Francisco, California 1901 Oue Street, N. V. 94111-5394 Washington, D. C. 20009 Mark D. Nozette, Counselor at Law Heron, Burchette, Ruckert & Rothwell 1025 Thomas Jefferson Street, N. W.,

Suite 700 Washington, D. C. 20007 1/A , b s.) Juanita Ellis7 President ASE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 2

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING $ BOARD In the Matter of ) .

)

TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 and COMPANY, ett al. ) 50-446

)

(Comanche Peak Steam Electric ) (Application for ,

Station, Units 1 and 2) ) Operating Licenses) ,

APPLICANTS' ANSWER TO CASE'S

. MOTION FOR PROTECTIVE ORDER

't s

Pursuant'to 10 C.F.R. 82.730(c) Texas Utilities Generating Company, et_ al. (" Applicants") .hereby submit their answer to CASE's Motion for Protective 0,r d e r , served August 12, 1982, as supplemented by letter from CASE dated August 19, 1982. For the reasons set forth below, Applicants urge the Atomic Safety and Licensing Board (" Board") to deny CASE's motion as beyond the jurisdiction of the Board or, in the alternative, as being without merit or substance.

I. BACKGROUND

. During the evidentiary hearings conducted July 26-30, 1982, .

CASE identified and sought a subpoena for the attendence of Mrs. Darlene Stiner, a QC inspector at the C manche Peak site.

CASE stated that Mrs. Stiner possesses information relevant to matters at issue in Contention 5. The board granted the requested .

subpoena, Tr. 2964. Mrs. Stiner is scheduled to testify upon s

the resumption of the evidentiary hearings on September 13, 1982.

On August 11, 1982, Applicants' Counsel became aware'that Mrs. Stiner had been engaged in efforts during working hours to

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Clearly, an employee's remedy for alleged discriminatory practices by an NRC licensee lies with the Department of Labor,'

pursuant to 42 U.S.C. 85851, and not with the NRC. This board, being vested with only such authority.as the Commission may delegate, accordingly, is not empowered to pr'oVTde CASE with- .

the relief it seeks. Thus, the Board should deny CASE's motion as being not within the Board's authority.

B. In Any Event, The Motion Is Without Merit Assuming arguendo that the Board had jurisdiction over a claim under Section 210 of the Energy Reorganization Act, 42 U.S.C. H5851, nevertheless the Board should deny CASE's motion as being without merit or substance. As to Mr. Stiner, even CASE concedes that Mr. Stiner's efforts to reverse his terminations in 1980 and 1981 started "long before CASE had any f ili a Mr. and Hrn. Stiner would be testifying in these proceedings" (CASE Motion, at 1). Mr. Stiner's situation is purely a personnel matter between him and Brown & Root. His efforts to obtain his personnel records pre-date these hearings and therefore have no rational connection to them. Further, as a former Brown & Root employee who was fired for unsatisfactory job performance (and not matters related to these hearings), ,

Mr..Stiner's election to testify in these hearings does not

. bring him within the scope of Section 210 of the Energy Reorganization Act. .

As to Mrs. Stiner, the allegations raised by CASE are inine. Apptionnen have taken no ap. tion "in retaliation for her testifying in the operating license hearings for Comanche Peak"

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.Ji' of Mrs. Stiner. Accordingly, CASE's motion should be denied. . #. ,.

ic III. ' CONCLUSION .

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For the foregoing reasons, Applicants urge the Board to .

. ~ .,

deny CASE's motion for lack of jurisdiction over the subject .-

L matter or, in the alternative, for lack of merit. ,,

m.

Respect u y Submitted, Nicho . Reynolds 1

J

(,j +

William A. Horin Debevoise & Liberman 1200 17th Street, N. W.

Washington, D. C. 20036 (202) 857-9817 .

Counsel for Applicants August 30,.1982

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