ML20204F636

Applicant Response to Case Proposed Schedule for Hearings Re Ol.Certificate of Svc Encl

ML20204F636
Person / Time
Site:	Comanche Peak
Issue date:	07/30/1986
From:	Gad R ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#386-161 OL, NUDOCS 8608040258
Download: ML20204F636 (36)

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CCCe'f ,.,,- e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

) Docket Nos. 50-445-OL TEXAS UTILITIES ELECTRIC ) 50-446-OL COMPANY et al. )

) (Application for an c (Comanche Peak Steam Electric ) Operating License)

Station, Units 1 and 2) )

)

APPLICANTS' RESPONSE TO CASE'S PROPOSED SCHEDULE FOR HEARINGS Introduction With the completion of certain CPRT Action Plans and the publication of the associated Results Reports accomplished in certain cases and imminent as to many more, the Applicants filed a motion for the establishment of a hearing schedule in respect of any portions of these Results Reports that might be contested. The motion was filed on March 21, 1986 and 8608040258 860730 PDR ADOCK 05000445 O PDR Y{]h

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was the subject of a pre-hearing conference on April 22, 1986.

In essence, the Applicants motion called for the litigation of contested Results Reports seriatim (at least within the groups in which they are published).

At the pre-hearing conference this suggestion was endorsed by the Staff, but was opposed primarily on the basis of an objection lodged by CASE to the effect that litigition of any Results Report that was significantly dependent upon the completion of another Action Plan should be deferred until the second Action Plan was completed. In response, the Applicants did not challenge the conceptual wisdom of such a suggestion but did assert that it had little or no (and no presently apparent) application, since each of the Action Plans was intended by the CPRT Program Plan to be " stand alone" within its assigned scope. Tr. 24392-93 (4/22/86). If interdependence was to be a reason for deferring any required litigation of completed investigations, the Applicants urged, the party contending for the existence of such interdependence should be required to demonstrate that it exists. Id.

at 24392, 24401-02. At the conclusion of the pre-hearing conference, the Board afforded CASE an A

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opportunity to demonstrate the actual or potential existence of the asserted action plan interdependence:

"The only reason I would invite you to

[ file a post-hearing submission] is if you assure me that it will show an interconnection between this ISAP and subsequent ISAPs such that it would not be proper to ask you to specifically deal with this ISAP independently."

Tr. 24417 (the Chairman). CASE accepted this challenge. Id.

CASE filed the invited pleading (" Response to ,

Board Questions") on May 5, 1986. The pleading, however, completely failed to make the promised demonstration, as the Applicants pointed out in their response filed May 20, 1986 (" Applicants' Response to

' Response to Board Questions'"). ,

Under date of June 12, 1986, the Board issued an order calling for further input from CASE.

(" Memorandum and Order (Scheduling of Hearings)".) The Board did not address or allude to the theretofore critical question of interdependence of action plans.

Rather, it asserted that, because CASE had "twice prevailed in this litigation" (referring to one decision in which the Board determined that there were questions about the adequacy of design in the piping and pipe support area and to the decision of the

o Applicants, made concurrently with management's " fresh look" at the status of licensing, to withdraw then pending summary disposition motions so that the issues subsumed thereby could be considered by the CPRT), CASE should have "the opportunity to suggest a workable schedule . . . ."

CASE filed its suggestions on June 30, 1986. In this pleading any attempt to demonstrate such inter-ISAP interdependence as would render essentially seriatim litigation wasteful has been abandoned.

Rather, CASE opposes the Applicants'/ Staff's scheduling proposal on the basis of other objections. Principal among these are the assertions (i) that design" review and assessment must be completely finished, published, discovered and litigated before any issues relating to the adequacy of construction could be considered ripe, and (2) that there should be litigation of the theoretical, pre-implementation adequacy of the CPRT Program Plan before any CPRT investigation, analysis or re-inspection results should be considered. An attempt was made to support this second assertion by enumerating several supposedly " generic" theoretical issues common to all action plans. Attached to the pleading is a proposed schedule that, if implemented as

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o written, would require about months (and perhaps years) to complete litigation after the completion of the last outstanding CPRT or TUGCO investigation or corrective action.

By leave granted, the Applicants submit this response to CASE's latest objections to the proposed schedule.2 Herein we demonstrate that the " design first" assertion provides no basis for the derailment of orderly consideration of completed issue-specific action plans and that the assertion of common " generic" issues is without basis. We also attempt to explain why the CASE proposal would severely and adversely impact the Applicants' ability to present to the 2In its order of June 12, 1986, the Board established July 3, 1986 as the date for the filing of this response. That time was enlarged as a result of CASE's acquiescence in the Applicants' motion of July 3, 1986, for additional time, which the Board allowed in an unrecorded telephonic conference on July 9, 1986.

Board -- and the Board's ability to consider -- the i

fruits of all the labor that has been invested in closing out the manifold very specific allegations of improper construction or design that have been raised in thd.s proceeding to date.

ARGUMENT

1. CASE's Insistence on Design First. The hallmark of CASE's proposed schedule is its insistence that the process of assessing, analyzing, correcting (to the extent required), documenting, discovering, litigating, and issuing a decision upon the design of CPSES commence and complete before the process' relating to construction even begins. This insistence is premised upon the simple logic that design (or analysis) must precede construction and that, if a final decision on design is in hand before any consideration of construction is even commenced, then i the remotest possibility of considering the adequacy of installed hardware that may later have to be replaced

e or modified is reduced to absolute zero.2 That reduction is the prime consideration, according to CASE,,because of the overarching necessity of minimizing the impact of its intervention in these

1. l proceedings upon CASE's claimed limited resources.

While this simple syllogism has some surficial appeal, it ignores reality. First, even in an area (pipe supports) in which it has been known for some time that there are design problems, and in the area in which the design reanalysis efforts are most advanced,a only a subset of the installed hardware will require 2

CASE also claims that "unless and until the design issues are resolved, resolution of any other issues is impractical, if not impossible." CASE Procosed Schedule at 4. This hyperbolic assertion is plainly not so; there is an existing design to which the construction can be compared as easily as it can be compared to any modified design. CASE's concern is not the possibility of testing the adequacy of construction first, it is the potential for testing the adequacy of construction against a standard that might change.

aThe first of the Stone & Webster products in the piping and pipe support area was published on July 28, 1986. While short of the full output called for in the CPRT Program Plan, the Applicants expect to make these products available (as the initial one was to CASE

, semi "in process" for the purpose of inviting CASE's review.

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any physical work (and the bulk of that work is relatively minor). Thus in this one area alone, to postpone all consideration of any claims of ,

unacceptable construction will guarantee unnecessary delay and time wasting at the back end of the process.*

Second, CASE and this Board must, no less than the Applicants, live with the truism that time is money. In the case of a nuclear power plant time is indeed a great deal of money. No one claims that in l the face of ongoing costs safety should be compromised -- but safety is not the basis for 'the

' CASE's claim that " Applicants have not explained, much less provided documentation-for, the relationship of these efforts to the CPRT design work" (referring to the efforts of Stone & Webster, EBASCO and Impell) (Case Proposed Schedule at 3) manifests a fundamental failure of comprehension on CASE's part of the CPRT program. The program calls for a design review structursG ta prcvida a messure of the adequacy of the entire CPSES design of safety related systems (excluding the NSSS and certain other " givens"). It also provides that areas of design may be singled out, for a variety of reasons, for redesign or requalification efforts, in which case the redesign or requalification will be performed by the CPSES project (or a contractor) and will be overviewed by CPRT. This is precisely what is going on in the areas referenced by CASE.

The CYGNA program to which CASE refers

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O CASE-proposed schedule. Rather, what CASE proposes is that its purely voluntary exposure to the unquantified possibility of challenging the construction of some hardware later to be repaired or replaced be ruled to be paramount to the staggering public impact that its proposal would guarantee. To endorse this logic would be to stand any commonsense notion of public policy on

, its head (not to mention the violence it would render to expressed Commission policy. -

Finally, the bottom line fact is that an intervenor in a nuclear power plant licensing proceeding has no standing to urge its own limited was formulated prior to the time that the Applicants undertook the present design effort, and it has (insofar as it was once thought to be the final review of selected design areas) since been overtaken by that decision. The CYGNA work will, as the Applicants have said, provide a useful input into the CPRT program.

But as the Applicants have also said clearly, their principal reliance fer the adequacy of the CPSES design will be on CPRT (and the redesign requalification efforts overviewed by CPRT), not on CYGNA. See Tr.

24403-05 (4/22/86).

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O resources as a consideration in scheduling. As this I agency has ruled before, an intervenor is a volunteer.

Hundreds of millions of dollars Of public funds are spent upon NRC staff, consultants, research and related facilities in order to provide that level of regulatory oversight that the Commission deems necessary. See Financial Assistance to Participants in Commission Proceedings, CLI-76-23, 4 NRC 494, 502-04 (1976).

Regardless of how well CASE may have functioned heretofore,5 the structure of NRC licensing 5

CASE claims, and rightly so, a fair measure of success in respect of the piping and pipe support design issues. However, it entered these proceedings with claims relating to the adequacy of construction and in that area CASE's adjudicated efforts have thus far borne little fruit. The Applicants therefore suggest that the Board's observation that CASE has "twice prevailed" in this matter is a tad one-sided.

(See " Memorandum and Order (Scheduling of Hearings),"

6/12/86, at 2. )

Moreover, the Board's assertion that, because CASE has "twice prevailed," some sort of penalty-like burden should be borne by the Applicants ic, we respectfully suggest, a misreading of Byron.

Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-770, 19 NRC 1163 (1984). There the Appeal Board, while holding that "so long as legitimate uncertainty remained respecting whether the Byron facility has been properly built, the Licensing Board was obliged to withhold the green light for an operating license" (id. at 1169), held that outright

i practice does not regard the intervenor to be a neces.sary component whose needs demand the priority that such necessity might bring. True enough the Commission invites those who wish voluntarily to enter the process to do so, but the invitation is subject to the precept that the Commission will not accept unnecessary delay in the licensing process. CASE denial of the operating license authorization could follow only from "a supported finding that it is not possible for the ascertained quality assurance failings either to be cured or to be overcome to the extent necessary to reach an informed judgment that the facility has been properly constructed," Id. The Licensing Board's duty, held the Appeal Board, was to inform the parties of its inability to reach a decision favorable to the operating license authorization and then to "provid[e] for further proceedings before lit].

when the various inspections, investigations and remedial action [have] become ripe for consideration."

Id. The issue, therefore, is whether the "reaso'nable assurance" standard (as stated in Union Electric Co.

(Callaway Plant, Unit 1), ALAB-740, 18 NRC 343, 346 (1983)) has been met -- and, if not, what is required yet to be done in order that it be met -- and there is not a hint that it would ever be appropriate to penalize the operating license applicant because the required demonstration was not accomplished on the first pass (or without the need for remedial work).

See also the authorities cited in " Applicants' Memorandum in Response to Board's Memorandum (Statistical Inferences from CPRT Sampling)," 1/31/86, at 19-21 & nn.6-7.

simply cannot bootstrap its voluntarily incurred burdens (real or imagined) into competing interests asserted to outweigh the terrible waste of needless delay.

For these reasons, the CASE insistence on "desian first" should be -- and must be -- rejected.5

2. CASE's Suggestion of Trying the CPRT Program Separately. CASE's suggestion that separate litigation of the adequacy of the CPRT program should be 6

We wish to emphasize that the Applicants are not pressing haste per se, nor suggesting any particular time period within which the Operating License hearings must be completed, nor suggesting that celerity requires or suggests any diminution in the attention paid to the question of whether reasonable assurance exists that CPSES has been designed and constructed free of such undetected and uncorrected safety significant deficiencies that, if remaining undetected and uncorrected, would render the facility incapable of being operated safely. How long that will take, frankly, is a matter determined by the scope of the investigations ultimately undertaken by the Applicants (including CPRT) and by what is found; for that reason, how long that will take is something not presently known or knowable. What we do press -- and what is known and knowable (indeed, axiomatic) -- is that the order on which CASE insists insures that extra, wasted time will be built into the process. Licensing CPSES should take no less time than that required to do it properly -- and it should take no more.

undertaken does not make sense. The CPRT Program Plan is the Applicants' tool for organizing and proce.duralizing its response to the many issues that have been raised. As a separate document or program, however, it is irrelevant to the Operating License proceeding, because there is no legally cognizable issue subsumed in Contention 5 that turns upon the prospective adequacy of this or any other re-inspection / analysis / corrective action program. Between now and the time that hearings open on any remaining contested issue under Contention 5, the Applicants can and will, as they from time to time they judge appropriate, alter, amend, expand, contract cr' revise the CPRT Program Plan; issues may be added to the Program Plan or deleted from it; other studies and assessments or corrective action programs may be initiated;7 and any other additional evidence that the Applicants judge relevant, truthful and helpful can and will be offered. What is relevant is whether the

'See " Applicants' First Progress Report," filed today, at " Corrective Actions."

evidence that is offered (when it is offered) by the Applicants on each contested issue (which it is CASE's obligation to specify) is sufficient to convince the Board that, within the scope of that issue, there is reasonable assurance of the lack of any remaining undetected, uncorrected safety significant deficiencies that render the facility incapable of being operated safely. Until the time that such evidence is offered,

. however, there is nothing before the Board on which a decision should be or can be based.

Second, such hypothetical litigation of the unexecuted portions of the CPRT Program Plan is not likely to lead to meaningful results. In the abstract, all sorts of hypothetical questions about what might happen "if" could be the subject of nearly endless litigation. None of those questions is relevant if, following implementation of the portion cf the program plan in question, the "if" hasn't happened. Thus, for instance, it becomes totally irrelevant how Action Plan I.a.4 would have handled the discovery of deficiencies once it is determined that no deficiencies exist. Such litigation is, therefore, neither practical, likely to be fruitful, nor, frankly, consistent with CASE's i

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professed desire to conserve resources.s In th4.s connection, CASE's specification of

" generic issues" confirms that the proposed process eat one time the Applicants had proposed that the acceptability of the CPRT Program Plan should be litigated prior to its implementation. (See

" Applicants' Current Management Views and Management Plan for Resolution of All Issues," June 28, 1985, at 71.) That proposal made sense at the time, when CPRT results were not.available. In that way " generic" CPRT -

issues could be addressed early on without interfering with litigation of CPRT results and, indeed, the acceptability of the CPRT program might have supplied a basis for OL approval without need of awaiting implementation. However, CASE opposed in general Applicants' proposal for litigation of the CPRT Plan (see " CASE's Initial Response to Applicants' 6/28/85 Current Management Views and Management Flan for Resolution of All Issues," July 29, 1985), and subsequently the Board ruled that it was the results of  :

CPRT implementation that it was interested in seeing and, thus, litigation of the CPRT program was not appropriate. (Memorandum and Order (Proposed for Governance of this Case)), LBP-85-32 22 NRC 434, 436 (1985). Since that time the CPRT Program Plan has been implemented and the early results are in or are imminent. We suggest that not only is it no longer open to CASE to urge pre-implementation litigation of the acceptability of the Program Plan, but such an approach is no longer necessary or consistent with efficient litigation of the CPRT issues. However much CASE might now view the Applicants' original proposal to be a good one, the passage of time has eclipsed that opportunity.

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would be an exercise in wheel-spinning. Thus:

a. " Independence." There is no requirement that a witness offered by an applicant in support of an operating license application be " independent" (a term of multiple possible interpretation and which CASE does not define) from the applicant, its constructor, or any of its contractors.' Indeed, stated so globally, the proposition is facially impossible. What matters is whether the testimony and evidence of the witness is -

persuasive of the matters asserted therein. There is, therefore, no ruling that this Board could issue in the absence of that evidence, i.e., until after the results are in litigation.

b. " Safety Significance Criteria." While it is difficult to discern from CASE's description of this issue precisely what CASE has in mind, it is plain (1) that the safety significance criteria differ from

'See, e.g., Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1210-11 (1984); Louisiana Power and Light Co.

(Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1091 (1983).

action plan to action plan, depending upon the nature of the item under consideration, (2) that the issue is likely to turn upon how actual questions of potential safety significance have been resolved, which is not possible absent the results of the action plan, and (3) that, as noted above, the whole issue is moot if there have been no deviations (as defined in the program plan).

c. " Root Cause" and " Generic Implications" definitions. This is a similarly barren field for useful hypothetical litigation. As this Board has itself noted, there'is much to be said for flexibility in any attempt to define " root cause," since the concept cannot be adequately assessed devoid of the context in which the issue arises. The term " generic implications" is in fact nowhere defined: not only is it a non-technical term, but the issue of potential generic implications of a found safety-significant deficiency is impossible to deal with in a vacuum.

d. " Sampling Procedures." Again, the CPRT Program Plan is a response to a mix of issues: some action plans are quite specific to the external source being responded to (these use sampling in many different ways, if at all) (compare, for instance, the

use of sampling in Results Report I.a.4 with the use of vastly different sampling techniques in Results Report II.b); others are more globally addressed to hardware; and some (largely in the design area) make little if any use of statistical (or random) sampling at all.

The proof, however, is in the pudding. To attempt to deal conclusively with all of the potential philosophical issues relating to sampling is to sign on for an endless journey of no prospective usefulness.

e. " Adequacy of Checklists." If ever there was an issue that is specific to particular action plans, it is this one. Each action plan that uses ch'ecklists (and some do not) uses checklists specifically tailored to the action plan and the tasks it seeks to accomplish.

f. " Absence of QA Program." We do not understand what CASE is asserting. Prescinding from the fact that the CPRT Program Plan does contain provisions' relating to assuring the quality of its output, there is no a priori requirement that a witness offered by an applicant for a construction permit in support of the application have applied someone's concept of a formalized, ritualized "QA Program" to his work or else be disqualified from even mounting the

stand. As above, the proof lies in whether the testimony of the witness -- when offered -- is persuasive and, as above, there is no ruling that this Board could legally issue on this supposedly " generic" issue until after that testimony has been offered.

g. "Retrofitting." We do not understand the basis for this assertion, which, in any event, appears on its face to be dependent upon (1) the nature of the specific action plan in question and (2) the results of the action plan.

h. " Failure to Include All Deficiencies Alleged." We do not understand what the supposed issue is.

i. " Inadequate Public, Staff and Board Participation." Frankly this appears te be the closest CASE comes to a generic issue but it is susceptible of a purely legal resolution. There is no requirement of "public" input into the process by which witnesses in an NRC operating license proceeding prepare their testimony (or the investigative work that precedes the

. preparation of testimony), and the failure of the witness or his sponsor to tolerate "public" involvement in that process is not a litigable topic. The adequacy of Staff review of (and a fortiori involvement in) such

a process is not a litigable issue; the standard by which the pending application will be judged is whether the evidence demonstrates that there is reasonable assurance of a lack of undetected, uncorrected deficiencies and how well, how poorly or how anything else the Staff performed its functions is irrelevant as a matter of law. Finally, there is no legal basis for the wholly novel proposition that the admissibility or credibility of testimony that hasn't yet been offered -

into evidence depends to any extent on " Board participation" in its preparation.

j. " Absence of Staff Hold Points." Fo,r the same reasons, this topic is generic perhaps but it is also generically non-litigable as a matter of law.

k. " Inadequate Construction and Inspection Procedures." We do not see any demonstration in CASE's pleading of any theory that could possibly render this topic, which is inextricably bound to the specifics of particular issues and which not only depends upon but also assumes the availability of results, " generic."

1. " Inadequate Training." Once again, the mere statement of the issue assumes the availability of results.

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m. " Inadequate Review of Other's Programs."

Again, the assertion of " inadequate" review assumes that the review has been completed and is capable of being judged either adequate or not.

n. " Failure to Requalify All Equipment." We do not understand what the supposed issue means.

CASE's suggestion of litigation of hypotheticals, of little merit on its face, is, we respectfully submit, demonstrated to have no merit by CASE's own attempt to justify it. The suggestion can lead to no meaningful or dispositive rulings and should be rejected.

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3. Length of the Discovery Period. A hallmark of the CASE-proposed schedule is overly long (and overly repetitious) discovery periods. Without denigrating CASE's right to reasonable discovery as to matters legitimately in contest, we urge the Board to recall that the Applicants have committed to provide the entirety of the CPRT working files on each action ,

plan (which, in the case of matters like the redesign or reanalysis efforts being undertaken in the piping and pipe support areas, includes the working files of the organizations doing that work)28 as the Results Reports are published. This means that CASE will have the entirety of the information and data that is available on the topic, that it will have this without the need of formulating discovery requests (and the need of formulating several rounds of discovery requests to cure deficiencies in initial rounds), and that it will have this essentially as soon as the Results Report has 28 CASE's possible assertion to the contrary at page 7 of its pleading is devoid of any citation and properly so; if so asserted, the proposition is false.

been published.11 Moreover, the Applicants have in fact implemented this commitment (even in the absence of the adoption by the Board of a hearing schedule).

CASE will, therefore, already have had the substantive equivalent of a thorough "first round" of discovery in respect of each action plan or group of action plans, even before the discovery period opens.

Any subsequent discovery is -- by definition " follow up discovery." E.g., " CASE's Interrogatories and Requests for the Production of Documents on ISAP I.a.4," filed May 15, 1986. As a consequence, there should be only one period of discovery for each action plan or group of action plans. We submit that there is no need for that period to exceed 60 days.12 11 A period of time is required for the indexing and bundling of the working files and their physical transmission from the CPSES site to TUGCO's offices in Dallas. This process does not begin until the results report has been approved by the Senior Review Team.

12 In order to benefit from what we have learned

, regarding discovery scheduling in the CPA proceeding, we suggest the discovery period for each action plan or group of action plans should be described simply by:

4. Old Summary Disposition Motions. Prior to Revis, ions 2 and 3 to the CFRT Program Plan, and prior to the Applicants' undertaking regarding the adequacy of design, and under a procedure crafted specially for this proceeding that, as CASE observes failed to meet the expectations of anyone, a number of summary

1. A " Discovery Commences" date--to be defined as the first day upon which discovery .

requests relating to an action plan could be served (and which we suggest should be the date of issuance of the results report (s) associated with the action plans to be litigated); and,

2. A " Discovery Closes" date--to be defined as the last day on which discovery requests related to with the action plan (s) could be served.

Within the 60 days between these two dates, the parties would have abundant opportunity to formulate and serve several sets of discovery requests pursuant to 10 CFR 5 2.740 et. Sec. As for responses, the parties would have whatever periods are made applicable by the Rules of Practice to the discovery vehicles chosen by the propounding party by the Rules of Practice.

In addition, it could (and in light of past concerns perhaps should) be made clear that the parties would be afforded appropriate opportunity to seek more complete answers to any discovery requests served prior to the Discovery Closes date. It also could (and again probably should) be made clear that parties could continue after the Discovery Closes date the process of reviewing and ccpying documents things made available z

disposition motions were filed, both by the Applicants and by CASE. The Design Adequacy Program was subsequently commenced. As the Applicants have recognized, that program renders moot the previously filed summary disposition motions (which were limited to the area of piping and pipe supports) simply because a new design / qualification effort will supplant the subject of the the motions. It is for that reason that the Applicants' motions have been withdrawn and are no -

longer pending before the Board. CASE's insistence on continued litigation of its motions (CASE Proposed Schedule at 8, 10) fails to make any sense. Even if perfectly successful, all the pending summary i

disposition motions could yield is a conclusion that in response to 10 CFR S 2.741 requests served in a timely manner. This period, however, should not be unlimited in view of the need for the custodians of the documents or things offered for inspection viewed to obtain unlimited and unobstructed access to the items in order to ready them, and the party possessing or controlling them, for trial of any issues to be litigated with respect thereto. We suggest that 30 days after the receipt of the last 10 CFR $ 2.741(d) response regarding the itemn should be the maximum period permitted for such a review process.

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I a design or design qualification no longer being relied upon was flawed. Such a conclusion has no bearing on whether any operating license should be authorized, because it does not address the sufficiency of the present design or design qualification. Moreover the suggestion of such pointless litigation would seem to be fundamentally inconsistent with CASE's professed desire to avoid the burdens of litigating something that is no longer relevant.

5. Nature of the Applicants' Case. CASE professes some doubt about the nature of what the Applicants' evidence will be when we do get to' hearings. CASE Proposed Schedule at 18. We would have thought the matter clear: the Applicants' will formulate the nature of the evidence they will offer, which may well include additional direct testimony, after (1) CASE has announced whether it wishes to contest the conclusion of any of the Results Reports or Collective Evaluations, or of the Senior Review Team's overall Collective Significance Report, and (2), if so, after CASE has responded to such discovery as the Applicants may propound to it.

6. "One Last Chance." CASE urges, albeit appropriately timidly, that this Board rule that the n

1 Applicants may have only one "last chance" to demonstrate that the operating license standard has been -met insofar as it is relevant to Contention 5.

CASE Proposed Schedule at 20. The Board can and should make no such ruling. It is the Board's function, if it finds that licensing standard has not been met, to point out the respects in which it believes corrective action is still required. It is the Applicants' call at that point whether it disagrees with the Board, in which case the Board may render a final initial decision and the matter will be reviewed on appeal, or whether the Applicant wishes to perform and submit the results of the indicated corrective action. See note 5, supra. There is no artificial limit on the number of iterations this process may take.

7. Points on which the Parties are in Agreement. The Applicants agree with CASE's conclusion that the attempt to resolve design issues that are contested on the basis of written filings has proved undesirable. See CASE Proposed Schedule at 8-11.

While the concept did indeed, as CASE notes, have some a priori appeal in the context in which it was employed, both the experience of that process and the nature of the technical matters that the remaining

o litigation will involve suggest that an attempt to shorten matters by the use of evidentiary depositions is likely to backfire. Should, following the publication of CPRT results in any area, CASE indicate that the area is contested in respects that are not susceptible of legal rulings, the Applicants are not likely to favor a repetition of the evidentiary deposition process.

The Applicants also agree that the Board's order that all filings are to be made so as to be received in hand by the parties on the due date is unnecessary at this time. CASE Proposed Schedule at 12-13. -

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9. Unaddressed Practical Problems with the CASE Proposal. Demonstrated above is the failure of CASE to offer persuasive arguments in favor of its proposal. We wish to add that nowhere does CASE deal with the overwhelming practical problems that its proposal would present. We see two major problems.

The first is needless delay. By definition, the CASE proposal has sets of people sitting around having completed their work and ready to defend it in the

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hearing room (if challenged), but unable to do so. To delay the litigation of that that is now completed is to insure needless delay in the availability of a completed, fully compliant CPSES -- however long it takes to bring the plant into a state of demonstrable compliance. That delay translates into additional, wholly wasteful costs, and there is no reason why that cost should be incurred.

The second severe practical problem that the CASE proposal will inflict upon the Board and the parties are the difficulties of demobilization and remobilization of the CPRT people whose work is

( finished. These problems are described in the

" Applicants' Fir'st Progress Report," filed today. The CPRT people are consultants brought in to address

certain specific problems. They aren't going to sit around in Texas waiting for other projects, in which they.have no involvement, to be completed so that the litigation and defense of their work can begin; they will, rather, move on to other jobs and other projects.

When finally CASE is ready to litigate the work of these people, they may be unable or unwilling to drop what they are then doing and return for a limited hearing room engagement. Moreover, even if they could return, they will be returning to something they had laid down and put out of their minds for six months or longer; the inevitable impact of this on the quality of the case that the Applicants will be able to present to this Board will be negative.

In its order of June 12, 1986, the Board quite properly notes that its prime concern should be fairness. We suggest, however, that the Board might wish to consider again how fairness applies to the present issue. It would be, we respectfully submit, fundamentally unfair to the Applicants to adopt the CASE-proposed rubric that nothing is ready for litigation until the last item is ready for litigation.

It would be no less unfair to force the Applicants to litigation of abstract questions surrounding unexecuted

and ongoing investigations before those investigations are, in the words of ALAB-770, " ripe for consideration." Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-770, 19 NRC 1163, 1169 (1984). Second, we suggest that the notion that fairness to CASE requires that it "not be deprived of the right to control the presentation of its own case in its own way" is contrary to the principles governing the proceeding at hand; as CASE itself is ever quick to point out, it is the Applicants who have the burden of proof, not CASE. CASE's only role is one that is responsive to whatever is offered by the Applicants to meet that burden; unless CASE wants to assume 'a burden of proof (and the Board so to order), it produces no unfairness to CASE to recognize that "its case" depends entirely on what the Applicants first offer as "their case."

The present issue is how to conduct, fairly and efficiently, the litigation of the results of the CPRT effort. A priori, the proper way is to schedule hearings on the action plans as each is completed. The only valid objection yet voiced to such a procedure is that, to the extent and in those cases where two or i more action plans are so interdependent that the l

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litigation of one cannot logically proceed without the other,, the two should be tried as a group. Indeed, the Applicants did not object to such a proposal; they argued only that it had no application and this Board's instruction to CASE was to demonstrate where such interdependencies exist. CASE was unable to do so.

Conclusion In its order of June 12, 1986, the Board offered CASE the opportunity to propose a schedule that is reasonable, has the prospect of dealing with the matters on the table efficiently and meets certain explicit criteria. What CASE has proposed is>

illogical, patently inefficient (to the point of requiring potentially endless litigation of non-issues) and not compliant with the Board's criteria. Earlier on the same topic of scheduling, the Board offered CASE the opportunity of showing that litigation of the already-issued Results Reports should be deferred into groups because of some dependency on Action Plans yet to be closed; CASE failed in that effort as well. We therefore respectfully submit that the time has come for the Board to set a scheduling order that deals with matters in an orderly and efficient manner, and we respectfully submit that the only proposal that meets

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that requirement is the one offered by the Applicants (as modified by the Staff in its pleading entitled

" Staff Response to Applicants' Motion for Establishment of a Schedule" (4/10/86). (See note 13, supra, for additional modifications that we commend to the Board's attention.)

Nicholas S. Reynolds William A. Horin BISHOP, LIBERMAN, COOK PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.

Suite 700 -

Washington, DC 20036 (202) 857-9800 Robert A. Wooldridge WORSHAM, FORSYTHE, SAMPELS &

WOOLDRIDGE 2001 Bryan Tower, Suite 3200 Dallas, TX 75201 (214) 979-3000 Roy P. Lessy, Jr.

WRIGHT & TALISMAN, P.C.

1050 Seventeenth Street, N.W.

Washington, DC 20036-5566 (202) 331-1194 Thomas G. Dignan, Jr.

R. K. Gad III ROPES & GRAY 225 Franklin Street  ;

Boston, MA 02110 (61 y -6100 1

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By R. K. Gad III l

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4 CERTIFICATE OF SERVICE I, Robert K. Gad III, one of the attorneys for the Applicants herein, hereby certify that on July 30, 1986, I made service of the within " Applicants' Response to CASE's Proposed Schedule for Hearings" by mailing copies thereof, postage prepaid, to:

Peter B. Bloch, Esquire Mr. James E. Cummins Chairman Resident Inspector Administrative Judge Comanche Peak S.E.S.

Atomic Safety and Licensing c/o U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory P.O. Box 38 .

Commission Glen Rose, Texas 76043 Washington, D.C. 20555 Dr. Walter H. Jordan Mr. William L. Clements Administrative Judge Docketing & Services Branch 881 W. Outer Drive U.S. Nuclear Regulatory Commissier Oak Ridge, Tennessee 37830 Washington, D.'C. 20555 Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commissiot Commission Washington, D.C. 20555 Washington, D.C. 20555 ,

Stuart A. Treby, Esquire *Mrs. Juanita Ellis Office of the Executive President, CASE Legal Director 1426 S. Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C. 20555

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'Renea Hicks, Esquire Ellen Ginsberg, Esquire Assistant At.torney General Atomic Safety and Licensing Environmental Protection Division Board Panel P.O. Box 12548, Capitol Station U.S. Nuclear Regulatory Commission Austin, Texas 78711 Washington, D.C. 20555 Anthony Roisman, Esquire

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Mr. Lanny A. Sinkin Executive Director Christic Institute Trial Lawyers for Public Justice 1324 North Capitol Street 2000 P Street, N.W., Suite 611 Washington, D.C. 20002 Washington, D.C. 20036 Dr. Kenneth A. McCollom Mr. Robert D. Martin Administrative Judge Regional Administrator 1107 West Knapp Region IV Stillwater, Oklahoma 74075 U.S. Nuclear Regulatory Commission Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 -

Ms. Billie Pirner Garde Geary S. Mizuno, Esq.

Citizens Clinic Director Office of the Executive Government Accountability Project Legal Director 1901 Que Street, N.W. U.S. Nuclear Regulatory Commission Washington, D.C. 20009 Maryland National Bank Bldg.

Room 10105 7735 Old Georgetown Road Bethesda, Maryland 20814 Elizabeth B. Johnson Administrative Judge Oak Ridge National Laboratory P.O. Box X, Building 3500 Oak Ridge, Tennessee 37830 Nancy Williams Cygna Energy Services, Inc.

101 California Street Suite 1000 San Francisco, California 94111 Robert K. G d) III 1

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