ML20107C447

Response Opposing Case Motion for Sanctions Countering Allegations Re Prefiled Testimony,Proposed Findings of Fact, Brief Re Ob Cannon Documents & Testimony of Liner Plates. Certificate of Svc Encl

ML20107C447
Person / Time
Site:	Comanche Peak
Issue date:	11/01/1984
From:	Downey B BISHOP, COOK, PURCELL & REYNOLDS
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20107C430	List: ML20107C447
References
OL-2, NUDOCS 8411020534
Download: ML20107C447 (8)

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. RELATED CORRESPONDENCE

.k.U.,SIJ3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4 b7/-I P4:23 a" - :.

BEFORE THE ~ ATOMIC SAFETY AND LICENSING BOARDT h e '; . . b ,

Ucq In the Matter of )

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TEXAS UTILITIES GENERATING ) Docket Nos. 50-445-2 COMPANY, et al. ) 50-446-2

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(Comanche Peak Steam Electric )

Station, Units 1 and 2) )

A PPLICANTS ' OPPOSITION TO CASS'S MOTION FOR SANCTIONS By its motion filed October 13, CASE seeks a variety of sanc-tions against Applicants for what CASE terms " repeated untimely filings by Applicant [s]."

In support of its motion, CASE alleges that Applicants failed to meet deadlines for filing: (1) Appli-cants' original prefiled testimony; (2) proposed findings of fact; (3) a brief on the issue of the attorney work product privilege with respect to 0.B.

Cannon documents; and (4) prefiled testimony concerning the liner plate issues. The facts, however, do not support CASE's contentions.

1. Original prefiled testimony.

CASE's contention that Applicants' original prefiled testi-many was untimely filed is groundless. By Board Order, prefiled testimony was due August 20, 1984. On August 19, Applicants completed over 1,000 pages of prefiled testimony (which was accom-panied by several thousand pages of exhibits). On the morning of August 20, this testimony was sent via two different messengers to 8411020534 841101 DR ADOCK 05000 4

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'i s 2-the Dallas-Ft. Worth Airport for1 transmission to Washington and filing with'the Doard.

One messenger,.however, missed his flight, which was the last flight that would have arrived in Washington in time for filing ~ with the Eoard.

When counsel learned that the messenger had missed his plane, counsel phoned the Board Chairman from Glen Rose, Texas, explained what had happened, and sought a one-day extension for. filing the prefiled' testimony being trans--

mitted by the messenger who missed the flight. The Chairman granted the extension and the remainder of - Applicants ' testimony was filed on August 21. Counsel's telephone charges for August, a copy of which is attached to this memorandum, indicate that the call was placed at 2:13 p.m. on August 23.

2. Proposed Findings of Fact.

CASE's contention that Applicants' proposed findings of fact were filed out of time is also groundless. Indeed, in light of the facts, it is nothing short of remarkable. The original dead-line for filing proposed findings was August 31. During the week of August 27, counsel for Applicants had several conversations with counsel for the NRC and counsel for CASE about extending the filing deadline for all parties until September 4. Counsel for the NRC did not object to such an extension, but initially counsel for CASE did. After several discussions, however, counsel for CASE agreed to the extension, provided that Applicant undertake to copy the Dunham record for filing with the Board. Applicants agreed to this condition (which the Applicants fulfilled) and counsel for Applicants and CASE then telephoned the Board Chair-

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-,c man,-who granted the extension. (As an incentive for the parties to file as.soon as possible, the Chairman indicted that (1) no

- party would be required to _ serve their findings on another until the receiving party was prepared-to make service on the serving party, and (2) the Board Chairman would review the parties' proposed findings in-the order in which'they were received.)

Applicants then timely filed their proposed findings on Tuesday, September 4.

3.- Brief on Privilege CASE's contention concerning the brief on privilege is also groundless. During the hearing of October 11, the Board directed Applicants to file a brief concerning any claim of privilege for O.B. Cannon documents that were prepared prior to the time Appli-cants began working on the testimony of J.J.- Lipinsky (which was ultimately filed as an affidavit) in support of Applicants' motion for summary disposition. The deadline for filing the memorandum was set for October 18. On the due date, Applicants informed the Board and the parties that it was not claiming privilege with respect to any such documents, and, thus, the issue on which the brief was to be filed was moot.

4. Prefiled Testimony on the Liner Plate Issues.

At the hearing on September 18, the Board permitted CASE to recite for the record a number of allegations concerning the liner plate travelers. None of these allegations related to the claims of intimidation pending before the Board and Applicants objected to the new " filed" contentions being raised and objected further o

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to CASE's reciting allegations without any testimony to substan-tiate them. Both objections were overruled. The Board then permitted CASE to file a memorandum memorializing its contentions by September 27, seven working days (nine calendar days) later.

The Board also directed' Applicants te file prefiled testimony on Monday morning, October 1, one working day (3 calendar days) after Applicants were to receive CASE's filing. CASE failed to meet its filing deadline, but Applicant was able to obtain a copy of CASE's filing on the twenty-ninth after normal business hours by sending a messenger to the offices of CASE's counsel. Over the weekend of September 29 and 30, it became apparent that Applicants could not complete its prefiled testimony, and Applicant informed the Board and the parties of its inability to do so at the beginning of the hearing on October 1. The Board then directed Applicants to continue preparing the prefiled testimony.

As directed, Applicants began preparing prefiled testimony on October 1. During the initial session it became apparent that, if Applicant addressed each traveler individually, rather than the generic issues, the prefiled testimony could span several hundred pages. Applicants' counsel then informed the Board of this fact and that counsel were looking at ways to present the testimony in a more succinct manner. Counsel then spent several hours on October 2 and 3 preparing a matrix that matched traveler numbers with CASE's allegations, and dictated draft testimony to a court reporter on October 3. The draft transcipt was reviewed, corrected, and supplemented as necessary over October 4 and 5.

Counsel then returned to Washington. During the conference call of October 11, counsel informed the Board that it anticipa'ted filing the corrected draft (which still lacked some dates) by Friday, October 12, or Monday, October 15. The corrected tran-1~

script was received in Washington on October 16 and was filed on that date. While the transcript was filed one day after Appli-cants thought it would be completed, so was CASE's memorandum.

Moreover, all substantive work on the prefiled testimony was completed on October 5, six working days after Applicants received CASE's filing.

In light of these circumstances, the sanctions sought by CASE are not warranted, and the motion should be denied.

Respectfully submitted, Bruce LJ Downey BISHOP, LIBERMAN, ', PURCELL &

REYNOLDS 1200 Seventeenth Street, N.W.

Washington, D. C . 20036 (202)857-9800 November 1, 1984

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OO C&PTelephone ACCOUNT NUMBER - 202 857 9800 547 '

SEP 13 84 1

- DETAIL OF ITEMIZED CALLS - PAGE 39  !

DATE TIME CALLED-PLACE AREA-NUMBER RATE MIN

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AT&T COMMUNICATIONS (CONT.)----

8 20 1221PM WASHINGTON DC 202 857 9800 FR GLN RS TX 817 897 2941 CD79 Jh' ) 92 38.96 8 20 330PM GLEN ROSE TX 817 897 2941 FR PROVIDENCE RI 401 831 0159 CD G@) 33 14.77 8 20 329PM GLEN ROSE TX 817 897 2941 FR PROVIDENCE RI 401 831 0159 CD8hD 1 1.65 8 20 213PM BETHESDA MD 301 492 7479 FR GLN RS 8 20 434PM PROVIDENCE RI TX 817 897 2941 )

CDP 4 h' 0 4 2.88 401 831 0159 FR GLN RS TX 817 897 2941 CDD90 5 3.29 8 20 1130PM ARLINGTON VA 703 527 5016 FR GLN RS TX 817 897 2941 CNCRJ9 21 5.07 8 20 643PM ARLINGTON VA 703 527 5016 FR GLN RS TX 817 897 2941 5 2.39 CELT 44 See Ba:k 4 = Cred4 Amount

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

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TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-2 and COMPANY, et--

al. ) 50-446-2 (Comanche Peak Steam Electric ) ( Application for Station, Units 1 and 2) ) Operating Licenses)

CERTIFICATE OF SERVICE I hereby1 certify that copies of the foregoing " Applicants' Opposition to CASE's Motion for Sanctions" in the above-captioned matter were served upon the following persons by hand-delivery on October 31, 1984, or by overnight delivery,* or deposit in the United States mail,** first class, postage prepaid, this 1st day of November, 1984:

Peter B. Bloch, Esq. ** Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Panel Licensing Board U. S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

• Dr. Walter H. Jordan Mr. William L. Clements Docketing & Services Branch 881 West Outer Drive U. S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission Washington, D.C. 20555 Herbert Grossman, Esq.

U. S. Nuclear Regulatory Stuart A. Treby, Esq.

Commission Office of the Executive Washington, D.C. 20555 Legal Director U. S. Nuclear Regulatory

• • Mr. Robert D. Martin Regional Administrator Commission Washington, D. C. 20555 Region IV U.S. Nuclear Regulatory ** Chairman, Atomic Safety and commission Licensing Board Panel 611 Ryan Plaza Drive Suite 1000 U.S. Nuclear Regulatory Arlington, Texas 76011 Commission Washington, D.C. 20555

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• • Renea Hicks, Esq. Anthony Z. Roisman, Esq.

Assistant Attorney General' Executive Director Environmental Protection Trial Lawyers for Public Justice Division 2000 P. Street, N.W.

P.O. Box 12548 Suite 600 Capitol Station. Washington,' D. C. 20036 Austin, Texas 78711 Ellen Ginsberg, Esq.

• • Mrs. Juanita Ellis Atomic Safety.and Licensing President, CASE Board Panel 1426 South Polk Street U. S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D. C. 20555

" Bruce L. Downey cc: Homer C. Schmidt John W. Beck Robert Wooldridge, Esq.

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