ML20138L465

Memorandum & Order Granting Case 850805 Motion to Reconsider 850722 Order Re Mgt Analysis Co Rept & Denying Case 850814 Motion for Equipment to Be Preserved.Served on 851029

ML20138L465
Person / Time
Site:	Comanche Peak
Issue date:	10/29/1985
From:	Bloch P Atomic Safety and Licensing Board Panel
To:	Citizens Association for Sound Energy
References
CON-#485-981 79-430-06-OL, 79-430-6-OL, OL, OL-2, NUDOCS 8510310316
Download: ML20138L465 (11)

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' W UNITED STATES OF AMERICA / D NUCLEAR REGULATORY COMMISSION J %[fe 'O f Z

Before Administrative Judges:

• Peter B. Bloch, Chairman #/

Dr. Kenneth A. McCollom '

Dr. Walter H. Jordan Herbert Grossman, Esq.

)

In the Matter of ) Docket Nos. 50-445-OL & OL-2

) 50-446-OL & OL-2

)

TEXAS UTILITIES ELECTRIC COMPANY, et al.)

--) ASLBP No. 79-430-06 OL (Comanche Peak Steam Electric Station, )

Units 1 and 2) )

) October 29, 1985 MEMORANDUM AND ORDER MEMORANDUM (Status of Pending Motions) SERVED OCT 301985 The purpose of this memorandum is to clarify the status of a variety of motions and to decide certain issues that are ripe. One 3

issue we are not acting on is TEXAS UTILITIES ELECTRIC COMPANY, et al.'s (Applicant's) " Motion for Reconsideration of Licensing Board's Memoran-

'dum (Reopening Discovery; Misleading Statement)", January 7,1985. We are permitting Applicants up to two more weeks within which to file additional information that we have been expecting since January.

I. Reconsideration of Management Analysis Company (MAC) Report Discovery Order n

On August 5, 1985 CASE moved for us to reconsider our Order of July 22, 1985 concerning the MAC Report. Fi rst, we wish to coment ori footnote *43of CASE's filing. In that footnote, CASE attacks the motives 8510310316 851029 PDR ADOCK 05000445 a eon 4

a Status: 2 of Applicants. Such an attack is not acceptable. Responses must be limited to the subjnat matter involved. Attempts to impugn the motives of a party are unseemly and irrelevant.

Furthermore, it is the Board that concluded that the scope of the interrogatories, as presented, was irresponsible given the nature of our proceeding. We consider that aspects of the discovery request were a fishing expedition not justifiable by the matters in controversy.

Whatever CASE may speculate that Applicants motives are, our conclusions are objective, based on a consideraticn of the facts and law governing the motion.- Given CASE's own natural biases, which are to be expected in a proceeding of this kind, it would be helpful if it took the Board's conclusions on this matter seriously. We do not impugn CASE's motives y

but we do think the discovery request was overly broad. In light of our conclusion, CASE may wish to examine its own future conduct in order to assure itself that its requests are properly limited to allowable i

subject matter.

We note that CASE's motion for reconsideration was very limited and we have decided to grant the request in its entirety. Had CASE known about the existence of the MAC report, it could have used that report as a basis for questions concerning the response of particular individuals to the information contained in that report. The withholding of that t

report deprived CASE of the opportunity to examine witnesses on that score. Furthermore,- discovery on this matter will permit CASE td evaluate *whether or not to use the MAC report in future examinations of witnesses. Consequently, the request that each of the engineers, Cygna l

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Status: 3 and Billy R. Clements be reinstated into the list on page 7 of the interrogatories, shall be granted. This portion of the interrogatories shall be considered to be refiled on the date of issuance of the accom-panying Order.

We note that Applicants' response to CASE's motion about the MAC Report purported to follow the Board's Order, but there is one aspect that clearly was not followed. In our Order, we resolved the question of relevance. To the extent that we felt a question was a " fishing expedition," we excluded it. Consequently, that one objection of relevance was already ruled on by the Board and was no longer available to Applicants, who might have moved for reconsideration but did not. To the extent that Applicants have raised relevance objections in their response, without also claiming and documenting the burden of response (which our order permitted them to do), those objections are overruled and the affected interrogatories shall be answered as if they were filed on the date of issuance of the accompanying Order. No new objections on those particular questions shall be allowed.

II. Preserving Evidence CASE's August 14, 1985 motion has asked that equipment taken out of the plant be preserved for its evidentiary value.1 We dealt with this

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I We as.sume that some equipment may be taken out of the plant. N

one' dienies that. See CASE's Offer of Proof in Support of CASE's j (Footnote Continued) l l

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Status: 4 issue in LBP-85-32, Proposal for Governance of this Case, August 29, 1985, slip op. at p. 6. footnote 6. Additionally, we are aware that, in an earlier aspect of this proceeding, CASE previously was offered the right to inspect any part of the plant it wished and that it declined to do so.

Since the design documents for the removed pipe supports will be retained, a record will be kept of the design problem resolved by removing the support. Hence, the removal of the support will not prevent CASE from proving a design deficiency. Furthermore, there is no reason to believe that supports will be removed for the purpose of masking construction deficiencies or that construction deficiencies would cluster in the supports being removed. (We note that this deter-mination is a determination on a motion for reconsideration and is not subject to a further motion for reconsideration. Nor may CASE renew this motion; it is fully and finally determined by us.)

It is true that Applicants or the Staff could use the removed supports for destructive testing of welds. They might consider preserv-ing the supports in case that became necessary. However, we see no reason at this point to require them to do so. Hence, it is up to Applicants whether they wish to preserve some or all of the supports to i

(Footnote Continued) 8/14/B5 Motion for Immediate Board Order for Applicants to Preserve Evidence, filed August 19, 1985.

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l Status: 5 E be removed. . We will not order the retention of supports or other ,

equipment.-

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III. Lack of Independence of the Comanche Peak Response Team (CPRT)

The alleged lack of independence of the CPRT is relevant only to the. credibility of its testimony. Hence, CASE's offer of proof, filed August 19, 1985,- is not yet ripe. We do not plan to act on that motion,

as it may become a matter of proof either in a " paper proceeding" or a hearing held to determine issues arising out of the Staff's Technical Response Team (TRT) and CPRT efforts.

IV. Request for the Board to Ask Applicant to Supply Documents -

i Given the current status of the case, we see no need ta order i Applicants to supply any documents to us. We urge that Applicants and

-Staff examine documents as they are completed, however, from the stand-4 ,

point of whether they have an important bearing on this case --whether favorable or unfavorable to their position. For example, a mechanism should be adopted by which the Board can be kept abreast of the com- .

' plete, current CPRT Plan. By serving important documents on us current-ly, the parties will enable us to keep abreast of our homework and help us to be prepared for the intense work that appears to be on the hori-t 20n.

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Status: 6 V. CASE's Motion to Compel of July 29 Applicants' August 13, 1985 response to CASE's Motion to Compel, filed July 29, 1985, is now inapposite, because of . subsequent Board orders. We ask that Applicants evaluate discovery requests, including these, with an eye toward responding rather than objecting.

Applicants failure to prevail on the technical merits of'its case has imposed enormous unnecessary costs on CASE. This Board heard inadequate proof of design adequacy. It then received Summary Disposi-tion motions - that have been withdrawn. So we are now on the third iteration concerning design.

There is a general policy with respect to discovery to favor the granting of discovery requests. When, as here,. each objection to a request imposes delay and costs on intervenors that is additional to costs unnecessarily imposed on them by Applicants' failure to prevail on the merits through persuasive presentation of proof, the Board is even more inclined to favor discovery.

This is not, of course, an invitation for free fishing. In this memorandum, we have admonished intervenors_ to examine their own ques-tions carefully. To the extent that intervenors seek to engage i n' fishing expeditions', we expect Applicants to object, at first informally with intervenors and then (if necessary) before the Board. But we t

expect responsible behavior on both sides and will not look favorably on technical objections from Applicants unless supported by clear and l persuasivei reasoning. When the problem is merely one of inconvenience

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Status: 7 or of limited expense, we expect Applicants to cooperate voluntarily with the intervenors.

We do not consider the Commission's general policy favoring "a smaller number of better focused interrogatories" to be controlling in this case. CLI-81-8, 13 NRC 452, 453. We are not in a stage of explor-ing the merits of admitted contentions in a preliminary fashion. We are in the advanced stages of a complex case in which Applicants have already lost on the merits on one occasion and have attempted to with-draw their sumary disposition motions on a second occasion. The policy on interrogatories was not designed with this litigation posture in mind.

VI. Reconsideration of Welding Issues With a few minor exceptions, we deny CASE's January 7,1985 Motion for Reconsideration of the Board's 12/18/84 Memorandum (Concerning Welding Issues). LBP-84-55, 20 NRC 1646 (1984). We note at the outset the inadvertent omission of a heading, "0VERALL CONCLUSIONS," which should have appeared after the first full paragraph on p.1666. The remaining two paragraphs in this section do not relate only to Mrs.

Stiner; they represent our overall conclusions concerning an alleged t

breakdown in the QA/QC program for welding.

We note that at the time we issued our decision we reached d conclusi6niconcerning the firing of Henry Stiner. On that issue, we had not received final briefing from the parties. The evidence we relied on

4 Status: 8 for this point was in a companion docket. We had received proposed findings from both parties, but those findings were subject to revision.

We considered the evidence received in the companion docket to have some importance and we disclosed our conclusions on that evidence. Now that the parties have seen our conclusions, they have not persuaded us that we were in error. However, we also have examined the importance of this conclusion and find that even in the absence of this evidence we would have reached the same conclusions on the welding issues.

On rereading our decision, we think we discussed clearly the kind of technical problems and the kind of inconsistencies in testimony that led us to reject the conclusions CASE would have us reach. We do not believe that the Stiners intentionally misled the Board. What we do believe is that they lacked technical sophistication and that their ability to recall factual details was colored by their biases. Given the complexity of the facts presented to us, this effect of personal biases is not surprising. However, our observation that there were inconsistencies in the Stiners' testimony prevents us from accepting the conclusions presented to us by CASE.

With respect to CASE's subsequent, post-trial statements that Mr.

Stiner made repair welds simply capped on both sides (and not filled in the middle), we consider this explanation inconsistent with Mr. Stiner's own testimony that he made a fillet weld around the inside of the hole and then filled ~ it in; he also said that it connects in the middle and that if 'y$u welded a one-and-a-quarter inch hole in a two-inch thick plate properly it would take five minutes. Tr. 10697-99. We conclude

r-4 Status: 9 that CASE's untimely post-trial statement does not affect our decision concerning the lack of credibility of the Stiners because of inconsis-tencies in their testimony.

In other respects, we affirm our initial reasoning. Should signif-icant new information be developed by the CPRT, a motion for reopening the record would be considered pursuant to the applicable standards.

VII. Reconsideration on AWS/ASME Issues CASE's Motion for Reconsideration of Licensing Board's 6/29/84 Memorandum and Order (Written-Filing Decisions, #1: Some AWS/ASME Issues) raises some important issues about undersized welds and cap-welds, citing the transcript of a January 10, 1985 meeting among the NRC Staff, Cygna and Applicants.

Since CASE's Motion cites new material it is, properly speaking, a motion to reopen the record, not a motion to reconsider. As a motion to reconsider, it is deficient because 'it does not indicate how the Board erred in interpreting the record. Hence, the motion to reconsider shall be denied.

However, we urge Applicants to study CASE's motion and to determine whether technical testimony on cap welding may require clarification.

We also will consider these issues to have been raised, for the purpose of reopening the record, as of the date of CASE's motion. At this time, given the CPRT activities, we do not consider it proper to determind whether orinot to reopen the record as CASE seeks. CASE may renew this motion at the proper time, addressing the criteria for reopening, should

- Status: 10 the CPRT efforts not address these matters in a way that CASE considers to be adequate.

ORDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 29th day of October 1985 ORDERED:

1. CASE's August 5, 1985 motion for us to reconsider our Order of July 22, 1985 (concerning the MAC Report) is granted pursuant to the discussion in the accompanying memorandum.

2. CASE's August 14, 1985 motion for equipment to be preserved has been denied F f our order in LBP-85-32.

3. CASE's offer of proof of August 19, 1985, related to the alleged lack of independence of the CPRT, is considered not relevant at this time, d

4. We take no formal action concerning CASE's request for Appli-l cants to supply us with documents.

5. Applicants'1 August 13, 1985 response to CASE's Motion to 4 Compel, filed July 29,' no longer provides reasons for Applicants' L failure to respond.

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CASE's January 7, 1985 Motion for Reconsideration of the

6. .

Board'sbebember 18, 1984 Memorandum (Concerning Welding Issues) is t

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Status: 11 granted in part, as indicated in the accompanying memorandum, and in all other respects is denied.

7. CASE's Motion for Reconsideration of Licensing Board's 6/29/84 Memorandum and Order (Written-Filing Decisions, #1: Some AWS/ASME Issues)isdenied.

FOR THE ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland a

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