ML20137J193
| ML20137J193 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 08/27/1985 |
| From: | Reynolds N BISHOP, COOK, PURCELL & REYNOLDS, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#385-360 LBP-84-54, OL, NUDOCS 8508300162 | |
| Download: ML20137J193 (18) | |
Text
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August 27, 1985.
I UNITED STATES OF AMERICA f
NUCLEAR REGULATORY COMMISSION 00CKETED C
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD A%28M0:,'!
In the matter of
)
Docket Nos. 50-445-1
)
50-446-1 TEKAS UTILITIES ELECTRIC
)
CFFl'2E OF SECRETAm COMPANY, ET AL.
)
00CHETydG 4 SERvlbri
)
(Application for cRANCH (Comanche Peak Steam Electric )
Operating Licenses)
Station, Units 1 and 2)
)
l" APPLICANTS' RESPONSE TO CASE'S THIRD SUPPLEMENT TO ITS MOTION FOR RECONSIDERATION OF LBP-84-54 l
I.
INTRODUCTION On August 15, 1985, CASE filed a supplement to its pending motion for reconsideration of the Licensing Board's i
December 18, 1984 Mer.orandum (concerning Welding Issues) l (LBP-84-54).
CASE's motion for reconsideration of LBP-84-54 I
was filed on Janaury 7, 1985.2 The August 15, 1985 supplement to the Reconsideration Motion is the third such j
1/ " CASE's 8/15/85 Supplement to CASE's 1/7/85 Motion for f
Reconsideration of Board's 12/18/84 Memorandum (Concerning Welding Issues) (LBP-84-54)" (" Third Supplement").
t 2/ " CASE's Motion for Reconsideration of Board's 12/18/84 Memorandum (concerning Welding Issues) (LBP-84-54),"
January 7, 1985 (" Reconsideration Motion").
8508300162 B 7
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. supplement to the original motion.3 Applicants.herein respond to the Third Supplement in three parts.
- First, Applicants continue an objection to CASE's unauthorized submittals of extra-record material in supplementation of the Reconsideration Motion.
Second, Applicants respond to CASE's latest arguments, which attempt, without success, "to vindicate" CASE's witness Henry Stiner.
Finally, Applicants strenuously object to CASE's continuing insidious practice of attacking the integrity of Applicants' counsel in legal documents filed in this proceeding.
II.
DISCUSSION A.
CASE's Unauthorized Supplementation l
l When CASE filed its January 7, 1985 Reconsideration 1
Motion, CASE included a motion that it be allowed to thereafter supplement the Reconsideration Motion.
Reconsideration Motion at 64.
The Board, however, has never I
3/ The first two supplements to the January 7 Reconsideration Motion were filed respectively on March 16, 1985 ("First supplement") and March 19, 1985 ("Second Supplement"). Applicants have opposed the Reconsideration Motion in an opposition filed on January 22, 1985
(" Applicants' First Response"), and have objected to l
CASE's practice of supplementing its Reconsideration Motion in a pleading filed April 1, 1985 (" Applicants' objection").
m
0
- ruled on the motion to allow supplementation.
Notwithstanding,t'his fact, CASE has unilaterally invoked the authority to file three supplements to the original
. Reconsideration Motion. 'In each of the supplements CASE has reiterated its intent to file additional supplements.4 Most recently, in the Third Supplement, CASE writes that:
CASE does not ask that the Board close the record and rule based-on what is currently before it regarding 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 ask again that the Board continue to hold the record open awaiting receipt of this additional information.
Third Supplement at 4 (emphasis supplied).
Applicants opposed CASE's original motion to supplement and subsequently objected to CASE's practice of filing unsolicited supplements.5 raced with a third supplement to the Reconsideration Motion and the prospect of countless more supplements, Applicants are constrained to renew the earlier opposition and objection.
The Board has issued a decision in LBP-84-54 largely resolving welding issues in controversy.
The Board's 4/ See First Supplement at 1-2; second Supplement at 11.
5/ see Applicants' First Response at 20-22; Applicants' 55Tection at 2-3.
e n.
. l decision specifically resolved the safety issue raised by Mr. and Mrs. Stiner with respect to misdrilled holes and included specific finding's with respect to Mr. Stiner's credibility.
The Board has never reopened the welding record on the issue of Henry Stiner's credibility (the subject of the Third Supplement), yet CASE asks the Board to
" continue to hold the record open."
Absent a specific reconsideration of LBP-84-54 by the Board, or a reopening of the record by the Board, the Board should not consider the extra-record information presented by CASE in its Third Supplement.
CASE's continuing submittals of new arguments and new information (such as the TRT SSER's submitted and proffered in the Third Supplement) exceed the proper bounds of a petition for reconsideration.
Under the Appeal Board's guidance in Tennessee Valley Authority (Hartsville Nuclear l
Power Plant, Units lA, 2A, 1B, & 2B), ALAB-418, 6 NRC 1, 2,
!~
(1977), petitions for reconsideration must be confined to "an elaboration upon, or refinement of arguments previously l
advanced."
CASE's new arguments, based on allegedly new i
information, are not a proper basis for a reconsideration p
motion and should not be received by the Board on that ground.
Further supplements promised by CASE, based on further new information, should be forestalled.
.~
L D ' CASE's supplements are not styled as, and certainly do not constitute, motions to reopen the record.
Even if presented by CASE as:such, a motion to reopen,the record must demonstrate a change in a material fact which warrants litigation anew.
Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-9-10, 10 NRC 675, 677 (1979).
Specifically, the: motion must a) timely present new evidence, which b) addresses a significant issue, and which c) might warrant a different licensing board decision.
Pacific Gas & Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-598, 11 NRC 876, 879 at n.6 (1980). CASE.has made no such showing in its Third Supplement, and, at a minimum, the information submitted in the Third Supplement would fail to meet the timeliness requirement.0 In sum, CASE's previously filed and proposed supplements constitute an improper paper hearing and are inconsistent with the Rules of Practice.
B. The Credibility of Henry Stiner l'
CASE's Third Supplement to its Reconsideration Motion is predicated upon a telephone call between Henry Stiner and the NRC, held on September 10, 1984.
The phone call is
-6/ The conversation relied upon by CASE, between CASE's witness and the NRC, took place almost one year ago.
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> reported in an excerpt from SSER No. 10, issued in April 1985.
CASE argues that the phone conversation demonstrates the true interpretation of Henry Stiner's testimony in this proceeding, and therefore undermines the Board's ' finding that stiner lacked credibility as a witness.
Contrary to CASE's assertions, however, the conversation reported in SSER No. 10 is inadequate to restore Stiner's credibility and raises nothing that calls into question the findings and conclusions reached by the Board in LBP-84-54.
The Third Supplement arguments are too late and too insignificant to outweigh the Board's accurate first-hand perceptions of Henry Stiner's testimony based upon proceedings on welding _
issues that spanned many months and many hearing sessions.
Applicants understand the theory of CASE's Third Supplement to be as follouc:
1)
SSER No. 10 documents a telephone call from Stiner to the NRC Staff on September 10, 1984.
In the telephone call Stiner attempted to " clarify" his earlier testimony regarding misdrilled holes.
I Specifically, Stiner stated that his incredible testimony that misdrilled holes could be repaired by using 0 1 weld rods was only an " estimate". 9 y two i
Moreover, Stiner further refined his l
theory by arguing that the holes were not actually filled but " capped" with a weld
-7/ The Board's finding was based on testimony from both the Applicants and the NRC Staff that proper repair of 1 1/4-inch diameter hole in 2-inch thick steel (assuming no air gap) would require at least 20-25 weld rods.
See LBP 54, 20 NRC at 1655-56.
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. on each face.
Under this refined theory there would be an air gap rather than weld material in the middle of the hole, and thus fewer rods would be required.
Third Supplement at 3.
2)
Because this theory is what Stiner "really meant" all along (at least as of September 10, 1984), CASE would have the Board reconsider its finding that Stiner was an incredible witness.
Specifically, CASE argues that the Board's finding of a lack of credibility was based largely upon Stiner's " estimate" of the time and number of weld rods it would take to repair a misdrilled hole (see LBP-84-54, 20 NRC at 1683).
Third Supplement at 2.
CASE concludes that if Stiner was operating under the air gap theory, his estimate was not so unbelievable.
Both parts of CASE's logic are fundamentally flawed.
It is implausible that Henry Stiner held the air gap theory throughout the proceeding, and even assuming that such was the case, the fact would not restore his credibility.
First, the facts of record do not support CASE's argument that Stiner's testimony was actually based upon a procedure of capping the holes and leaving an air gap in the middle.
Applicants addressed the substance of this argument in Applicants' First Response to the Reconsideration Motion.
See Applicants' First Responue at 13-15.
To briefly summarize, Applicants therein demonstrated that as a factual matter the air gap theory is not plausible.
First, with the hole being repaired lying flat (as is indicated in Stiner's I
testimony (Tr. 10,697-99)), it would be virtually impossible o
L.
4
. to hurrily (within two minutes as stiner testified (Tr.
10,698)) weld caps over air without the weld material running down into the hole.
Second, it would be very unlikely that even a capping operation such as that described by Stiner in the September 10, 1984 telephone call could be completed with only two weld rods.
Applicants invite the Board to their earlier response (at 13-15) for a complete discussion of these arguments.
In sum, however, CASE's latest interpretation of the testimony is not believable.
However, even setting aside the rather absurd factual substance of Stiner's latest theory, CASE's argument that this was the theory Stiner had in mind all along, is even more implausible.
In the extensive hearings on this issue, Stiner never voiced the air gap theory.
He instead testified that his overriding concern was entrapped slag -
not missing material (Tr. 10,684-5; 10,689-94; and 10,695-99).
It would seem that if Stiner was operating under the air gap theory, he would have mentioned it at the time.
The air gap theory (involving use of only 2 weld rods instead of the 20-25 testified to by Applicants and Staff), would involve a misdrilled hole filled, at a minimum, with 18/20 air - a situation that would create a structural problem far more severe than any problem caused by slag inclusion.
Moreover, in discussing his welding technique, Stiner
explicitly referred to welding "around the inside of that hole until you get it filled in" (Tr. 10,697-99).
Such testimony is not compatible with the theory of welding caps on each face as is now offered by CASE.
Further, CASE would have the Board believe that Stiner
[
. held the air gap theory all along merely because SSER No. 10 documents a September 10, 1984 phone call to the NRC Staff in which Stiner voiced the theory.
CASE's argument, i
i however, is inconsistent with the entire history of the welding proceeding.
Stiner was specifically examined on the number of weld rods required to repair a hole (Tr. 11,158),
alerting him to the fact that his estimate would be severely challenged.
Stiner and CASE were also well aware of l
testimony from the NRC Staff and the Applicants (Staff Testimony at 26; Tr. 12,250-51; Tr. 11,767-68) on the required number'of weld rods which directly conflicted with Stiner's estimate.
Nevertheless, neither CASE nor the witness attempted to " explain" the discrepancy at the l
hearings or in CASE's proposed findings of fact filed on September 9, 1985.
Further, Applicants in their prefiled testimony discussed tests performed by Applicants to determine any effects of slag inclusions in repaired holes (Applicants' Exhibit 177 at 43-44).
The test specimens were welded through and did not include air gaps.
The test specimens were intended to illustrate Stiner's practice.
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Nevertheless, witness Stiner and CASE never challenged the test on the grounds that it failed to accurately reflect an air gap theory (see Tr. 10,683).
In sum, the extra-record phone call of Stiner to the Staff is grossly inadequate to counterbalance the testimony of record in this proceeding and.the fact that, despite ample opportunity and ample time for deliberation, the record includes no mention of air gaps or cap welds.
In light of the record and the history, it is implausible that the theory proffered in CASE's Third supplement is anything other than an after-the-fact rationalization of the witness.8 It is now too late in this case for a witness or a party to put forward new arguments to explain away the witness's past testimony.
The second step of CASE's argument is equally flawed.
CASE's argument is premised on the incorrect assumption that Stiner's testimony on the number of weld rods is the only basis for the Board's finding that Stiner was not a credible witness, and that a clarification of the estimate will l
negate the finding.
The fact is that, contrary to CASE's l
l presumption, the Board explicitly found many inconsistencies in many aspects of Stiner's testimony.
See LBP-84-54, 20 8/ Coincidentally, the phone call came three days after the filing of Applicants' proposed findings of fact, which set forth Applicants' arguments on welding issues -
particularly the number of weld rods required to complete a weld.
i b
l-l
2
, NRC at 1654-57.
Although the Board correctly found the grossly inaccurate " estimates" of the time and number of rods required to repair misdrilled holes to be the most eggregious example, the Board based its finding on credibility on a pervasive milieu of inconsistent and improbable testimony from the witness.9 SSER No. 10 does nothing to dispel that atmosphere.
In fact, in light of the other inconsistencies, conflicts, and changes in Stiner's testimony found by the Board, the phone conversation can perhaps best be viewed as merely another example of the c
witness altering his story to conform to the developing facts.10 CASE's Third Supplement provides no basis for a reconsideration of the Board's finding on Stiner's credibility, i
I
(
9/ By Applicants' count, the Board in LBP-84-54 explicitly found at least ten examples of changing, inconsistent, conflicting, improbable, or biased testimony from Mr.
Stiner.
20 NRC at 1654-57.
Even if the Board were to l
disregard the weld rod estimate, there are at least nine J
other examples on which the Board could base its finding as to Stiner's credibility.
10/ As stated by the Board, "Mr. Stiner's testimony also indicates that he has had a tendancy to elaborate on testimony adverse to Applicants as the proceeding progresses."
LBP-84-54, 20 NRC at 1654.
-O 4 '
C. CASE's Unwarranted Attacks on Applicants' Counsel CASE's Third Supplement is problematical in a third respect, unrelated to the Reconsideration Motion.
CASE carelessly charges in its Third Supplement that " CASE can understand that the Board might be reluctant to accept some counsel's. representations" (Third Supplement at 2) and that the " Board has good cause to doubt representations made by Applicants' attorneys" (Id. at 2, n.3).
These gratuitous comments are totally unsupported by CASE, and represent merely the latest in a long series of ad hominen attacks by CASE on the integrity of Applicants' counsel.
Applicants' move that the remarks be stricken from CASE's pleading and that CASE's representative be again instructed to act with candor and proper professional decorum in this proceeding.
CASE bases the comments in the Third Supplement on an extremely obscure allegation by CASE of a " deliberate violation.
. by Applicant's counsel of the Board's l
specific orders."
Third Supplement at 4.11 The allegation I
concerns Applicants' reasons for Henry Stiner's dismissal l-11/ The asserted " deliberate violation" is not readily apparent.
Only after close scrutiny, and a conversation between CASE's representative and one of Applicants' counsel have Applicants been able to understand with any certainty the exact nature of CASE's complaint.
4 1
r e from employment at Comanche Peak.
Id. at 5-6.
Apparently CASE perceives an inconsistency between Applicants' First Response (filed on January 22, 1985) to the Reconsideration Motion and a pleading filed by Applicants on August 30, i.
1982.
In Applicants' First Response, Applicants (referring to' Applicants' proposed findings on welding issues and the Board's decision on same) maintained that the Board was correct in finding that "Mr. Stiner was discharged because of a long standing absentee problem" (emphasis supplied).
In the 1982 pleading, Applicants had written that Stiner "was fired for unsatisfactory job performance" (emphasis supplied).
CASE would have the Board find that these two positions are inconsistent and hence constitute a "diliberate" attempt by Applicants to mislead the Board.
Suffice it to say in response, Applicants do not believe there is any inconsistency between the two statements.
Absenteeism (and conversely attendance) has always been viewed by Applicants to be an integral aspect of job performance.
CASE's charge that an inconsistency exists f
between the two terms is simply ludicrous.
CASE's charge l
that the use of the two statements represents an attempt to l
diliberately mislead the Board is even more fantastic.
Such an example cannot support the defamatory (and rather self-serving) comments made by CASE on page 2 of its pleading.
The comments and the " supporting" allegation should be
. stricken from the record.
The Board can be assured that Applicants' counsel are well-apprised of their " iron-clad l
obligation of candor" to the Board.
Public Service Company of Oklahoma, et al.
(Black Fox Station, Units 1 & 2), ALAB-505, 8 NRC 527, 532 (1978).12 i
Further, CASE's unsupported remarks, presented in a legal document filed in this proceeding, again point out the
~
need for the Licensing Board to caution CASE as to proper conduct before an NRC tribunal.
The Board in this proceeding has at least once reminded all parties that ad hominen attacks on opposing counsel are not to be tolerated.
See Memorandum and Order (March 1, 1983), at 4.
- Moreover, the NRC's Rules of Practice caution that parties and their representatives "are expected to conduct themselves with honor, dignity, and decorum as they should before a-court of law."
10 C.F.R.
S 2.713 (a).
Conduct with honor, dignity, t
and proper decorum does not include unwarranted and l
unprofessional attacks upon opposing counsel.
- See, e.g.,
Northern' Indiana Public Service Co.
(Bailly Generating Station, Nuclear - 1), ALAB-204, 7 AEC 835, 838-39 (1974).
The Licensing Board has the authority and the duty to 4
l
--12/ CASE's Third Supplement, however, ironically demonstrates that CASE itself should be reminded of its obligation of candor to the Board.
In the same pleading that CASE attacks Applicants' counsel's integrity on remarkably flimsy grounds, CASE presents a patently absurd revisionist theory of Henry Stiner's testimony.
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regulate the conduct of an attorney or a representative,13 and Applicants ask that the Board exercise this authority to again remind CASE that there are limits to the zealous representation of CASE's position.
III.
CONCLUSION For the reasons stated above, Applicants reach the following conclusions:
1)
CASE's unauthorized Third Supplement to its motion for reconsideration of the Board's welding decision should not be considered by the Board.
CASE's request to file future supplements should be denied.
2)
In any event, CASE's Third Supplement presents no basis for Board reconsideration of LBP-84-54.
For this reason and the reasons stated in Applicants' First Response to the Reconsideration Motion, CASE's Reconsideration Motion should be denied.
3)
CASE's charges of misrepresentations by Applicants' counsel are baseless and should be stricken from CASE's pleading.
Further, CASE's representatives should be reminded of their obligations under the Commission's Rules of Practice to represent their position with honesty and candor, and to act with professionalism and proper decorum in this proceeding.
~~13/ See, e.c 10 C.F.R. 5 2.713 (c); Consumers Power Company (Midlanc Plant, Units 1 & 2), ALAB-417, 5 NRC 1442, 1445-46 91977).
~
.O. '
i Respect 11' submitted, I
I Nichola S. Reynolds David A. Repka
- BISHOP, IB MAN, COOK, PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 (202) 857-9817 Robert A. Wooldridge WORSHAM, FORSYTHE, SAMPELS
& WOOLDRIDGE 2500 - 2001 Bryan Tower Dallas, Texas 75201 (214) 748-9365 Counsel for Applicants Dated:
August 27, 1985 i
1 9
f
i J
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOLMETED USNRC BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 15 AE 28 A10:21 In the Matter of
)
50-4 yfrn3if SEcdti;ua -
)
Docket Nos.
a 4
TEXAS UTILITIES ELECTRIC
)
50-4 4 '8jyhklE8vlCf.
)
)
(Application for (Comanche Peak Steam Electric
)
Operating Licenses)
Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Response to CASE's Third Supplement to its Motion for Reconsideration of LBP-84-54" in the above-captioned matter was served upon the following persons by express mail (*), or deposit in the United States mail, postage prepaid, on this 27th day of August, 1985 or i
by hand delivery (**) on this 28th day of August 1985.
- Peter B.
Bloch, Esquire Chairman, Atomic Safety Chairman, Atomic Safety and and Licensing Appeal Licensing Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory l
Commission Commission Washington, D.C.
20555 Washington, D.C.
20555
- Dr. Walter H.
Jordan Mr. William L. Clements 881 West Outer Drive Docketing and Service Oak Ridge, Tennessee 37830 Branch U.S. Nuclear Regulatory
- Dr. Kenneth A. McCollom Commission l
Dean, Division of Washington, D.C.
20555 l
Engineering, Architecture and Technology
- Stuart A.
Treby, Esquire t
l Oklahoma State University Office of the Executive l
Stillwater, Oklahoma 74074 Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555
4
' Chairman, Atomic Safety
- Elizabeth B. Johnson and Licensing Board Oak Ridge National Panel Laboratory U.S. Nuclear Regulatory Post Office Box X Commission Building 3500 Washington, D.C.
20555 Oak Ridge, Tennessee 37830 Robert D. Martin Renea Hicks, Esquire Regional Administrator, Assistant Attorney General Region IV Environmental Protection U.S. Nuclear Regulatory Division Commission P.O. Box 12548 611 Ryan Plaza Drive Capitol Station Suite 1000 Austin, Texas 78711 Arlington, Texas 76011
- Mrs. Juanita Ellis.
Lanny A.
Sinkin President, CASE 3022 Porter Street 1426 South Polk Street Suite 304 Dallas, Texas 75224 Washington, D.C.
20008 Nancy Williams Ms. Billie P. Garde Cygna Energy Services, Inc.
Citizens Clinic Director 101 California Street Government Accountability Suite 1000 Project San Francisco, CA 94111 1555 Connecticut Avenue, N.W.
Suite 202 Washington, D.C.
20036 S
ehYL 2
David A.
Repka 'l cc:
John W.
Beck Robert A. Wooldridge, Esq.
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