ML20207T544
| ML20207T544 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 03/17/1987 |
| From: | Roisman A Citizens Association for Sound Energy, TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2849 OL, NUDOCS 8703240116 | |
| Download: ML20207T544 (11) | |
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L 2-.9-19 cI bet' ORE THE DOCMETED UNITED' STATES USNRC NUCLEAR-REGULATORY COMMISSION Before the Atomic Safety and Licensing uoidb i@ 20 P2 i42 In the Matter of
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)
.BRAht H
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TEXAS UTILITIES GENERATING COMPANY,
)
Dkt. Nos. 60-446-OL et al.
)
50-446-OL.
)
(Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
CASE OPPOSITION TO APPLICANTS' MOTION TO COMPEL Introduction Rejoinder to Applicants' snide tone aside,'the Motion to Compel is baseless and the charges against CASE irresponsible, particularly coming from Applicants.
Their only valid point is that they are entitled to know the specific objections to Applicants' CPRT plan and the Comanche Peak plant that CASE intends to pursue at hearing.
CASE.does not disagree.
The issue is timing.
Applicants claim that CASE must now declare what its objections are.
We respond that until Applicants have completed their disclosure of iinformation sought by CASE, information which is essential to an unnderstanding of what Applicants are doing, CASE cannot know what its final objections will be and I
cannot be legally required to devote the time and resources to develop interim objections based on incomplete information.
Applicants seek to compel CASE to divulge information it does not possess.
That scheme is inherently doomed to failure.
l 8703240116 B70317 l
PDR ADOCK 05000445 9
PDR 0303
Argument The 'present dispute centers on what cuallenges CASE will make regarding the inherent defects (inaccurately labelled by Applicants " theoretical adequacy") of the CPRT and when those challenges will be known and what objections CASE intends to raise to the CPRT Results Reports and when those challenges will be known.
Since Applicants' motion relies on a massive
' distortion of the facts of this case, we begin our discussion with a brief review of the relevant facts.
The facts disclose that Applicants, not CASE, are the culprits whose conduct has caused delay.
In January 1985 CASE was pressing toward a conclusion of the harassment and intimidation issue and Applicants cried " uncle" by seeking a then promised " temporary cessation of formal hearings.
..until the first of March, 1985."
Letter, Wooldridge to Bloch (1/30/85,
- p. 1.
Applicants, not CASE, missed that deaaline.
It was CASE who then sought to move this proceeding ahead by having this Board establish an evidentiary standard which Applicants would know they would have to meet in order to have a qualified reinspection effort and to suspend narassment and intimidation hearings until completion of the reinspection effort.
CASE Motion for Establishment of an svidentiary_ Standard (2/4/85).
Although the Board rejected this effort as premature, it recognized that the motion was one "apparently designed to prevent litigation from running down blind alleys."
Memorandum i
(CASE Motion for Evidentiary Standard), 3/12/85.
CASE then also moved to have Applicants promptly admit or deny the validity of the factual rindings of the TRT, and Applicants, in language. _..
including approved extensions of time and overruled objections.
See Mernorandum (Motion to = Compel CASE's set 12), 3/16/87.
Despite all of Applicants' delays and missed.' deadlines, CASE has still indicated that, assuming depositions of Applicants an'd
.Staf f and answers to' Set 12 are received-by the week of April
~
- 20th, CASE will complete its motion for summary -disposition on inherent defects in the CPRT for which CASE believes summary disposition is appropriate by the first week of May.
Finally, a large,part of the " delay" that Applicants.
complain about is directly attributable to their insistence on the "in process" excuse for not producing requested and available 7
documents that are being used in the process of completing a results report.
See Prehearing Conference,. November 12, 1985,
' Tr. 24,175-77; 24,228-244; 24,251 (1n. 3-5); see also Memorandum
.(Current Status of Discovery), 8/16/8,
- p. 2.
This Board has frequently recognizied that CASE will not be prejudiced by this delay caused by Applicants.
Proposed Memorandum (Questions i
Needing to Be Resolved in Results Reports), 4/14/86, p. 2
("...we' assure CASE once again that Applicants' delay in providing the documents will not be permitted to interfere with CASE having adequate time to prepare its case."); Memorandum (Scheduling of hearings), 6'/12/86, pp.
1-2.
Thus CASE has sought and been granted the right to not be required to complete its examination.
L of documents in less time than it would have had had the
, documents been produced when they were originally generated.
In light of these facts, the Applicants' Motion to Compel, which rides on the false claim of a CASE-generated and -motivated delay, must fail.
Questions related to CASE's views on the I, _. - -.
inherent cefects of the~CPRT, to the extent CASE believes they are appropriate. for summary disposition, will be answered when CASH ~ files its summary disposition motion.
As to inherent defects not covered by that motion, CabE will not know which ones M will pursue at hearings until it has seen and reviewed all the results reports (including completion of design work by Stone &
Webster and otners), particularly the elusive VII.c.
Significantly, Applicants' discovery seeks, as it must, only CASE's views of the CPRT related to its position to be taken in these hearings.
as explained in our objections and here, CASE does not yet know the answer to the question asked.
Applicants apparently recognize that they cannot force CASE to tell them what CASE does not know but claim that CASE must go through the hundreds of interrogatories and answer each with "we don't know."
Surely that is the essence of pointless effort designed solely to harass, intimidate, and delay CASE from completing its serious work.
With respect to results reports, the situation is different because, admittedly, there is no time certain by which CASE will be required to take a position except it must come af ter the results reports (including design work) ar'e out and CASE has had a reasonable time to digest the material.
CASE does not deny that Applicants are entitled to answers to some of the types of questions it poses with respect to results reports.
The issue is timing.
At this time, CASE's attorneys, not CASE, have limited preliminary views on some of these matters.
In a few instances, non-testitying experts have preliminary views.
Since only final views are discoverable, and only the views of CASE, this discovery is premature.
Since CASE is never reluctant to disclose a disagreement with Applicants and the basis for the disagreement, Applicants can rest assured they will get the portion of the information to which they are' entitled.
Rather than suggest a schedule for responses now, which we are reluctant to 'do until we have a sense of the size of VII.c., the issues it will c'over, and the depth of their coverage, we will await Applicants' promised scheduling motion to formulate our views.
What is clear is that now is too early to answer the discovery.
In the course of their motion, Applicants make an assumption that the CPRT adequacy is an irrelevant issue which CASE may pursue but has nothing to do with what tnis case is about and that the totality of the -remaining issues here are.the acceptability of the results reports.
Applicants' myopic view of 4
this-case, often rejected by this Board in the past ( e.g.,
Memorandum (current Status of Discovery), 8/16/85;. Memorandum (Proposal for Governance of This Case), 8/29/85; Memorandum (Definition of " Root Cause"), 6/6/86; Memorandum (Board Concerns), 6/26/86), is particularly misleading here.
First, if, as CASE will demonstrate in its summary disposition motion, the CPRT is inherently defective, the Applicants' plan to license the plant based upon the CPRT will fail.
Second, beyond the CPRT are the design reanalyses, which are taking place to some extent outside the CPRT, and these raise separate issues.
Third, the implementation of design changes and/or construction changes are issues yet to be developed, and CASE will litigate implementation to the extent it finds major defects.
Fourth, the implementation 1 1
of the CPRT. necessarily raises the question of root causes of
< the failure of OA/QC 'to detect construction errors and the
. generic implications of those root causes.
Within this
. analysis, - an Applicant assertion of a narrow root cause may De met by a CASE argument regarding management failures and/or harassment and intimidation.
These examples illustrate that the end of the road is by no means the litigation of each results report.
Contention 5 necessarily brings before this Board efforts by Applicants to substitute an alternative to Appendix B compliance, the acceptability of such an alternative, the implementation of such an alternative, and the adequacy of the redesign and reconstruction work. undertaken as a result of such an alternative.
Applicants labor under the wholly absurd theory that, if they lose on Contention 5 because their UA/QC program failed, they can then avoid any intervenor or Board involvement in the implementation of a solution.
That theory has no currency in this case.
~
J Conclusion Applicants Ljoin issue with CASE's objections principally on-whetner postponin'g answering the legitimate questions is unjustified delay.
We demonstrate above that CASr.: nas not caused
~
~ and is not: causing celay; Moreover the postponement in answering.
questions is ' merely application of the same. work 'in process doctrine;that Applicants have.successfully pursued, only, as CASE' demonstrated in its Motion for Protective Order L(2/17/87s, pp.
3' 5,'the' argument for-its applicability is stronger here.
In addition / some questions are objectionable at any time.
Discovery of the position and basis.for~it to the extent it is solely the~ product of CASE's attorneys is not permitted.
The discovery answer would be prepared by the atto'rney and would at that moment become an' undiscoverable document under Rule 26.(b) (3 ).
The output of an attorney _is learned when the attorney
. makes a filing.
Similarly the. opinions of non-testifying experts are not' discoverable.
Rule 26(b)(4).
Applicants made no rational 1 argument 'why CASE should tell Applicants when CASE
- visited Applicants' office.
Applicants, not CASE, keep a log of the' visits.- Thus CASE should not have to answer any of these questions, which are identified on page 3 of its Motion for Protective Order, supra.
- Frankly we are a little puzzled by Applicants' motion.
It appears to be little more than intervenor-bashing, using the tired cliche of. delay.
Applicants surely know that CASE will tell them what it finds objectionable about Comanche Peak and
-why.
All this paper to ask CASE the questions and seek to compel
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answers 'is " full of sound and ~ fury signifying nothing."
j (Shakespeare,. Macbeth, Act V, Scene 5, line 19. )
Respectfully submitted,
?f ANTiiONY (.) ROISMAN
/
Trial Lawyers for Public Justice 2000 P Street, NW, #611 Washington,'
D.C.
20036 (202) 463-8600 Counsel for CASE Dated:
March 17, 1987 gpft UNITED STATES'OF AMERICA D
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING yRieR E P2 2 hk vtCl.
In the Matter of
)
FFL
)
BRANCH
' TEXAS UTILITIES GENERATING J
COMPANY,'et al.
)
Docket Nos. 50-445-OL
)
and SU-446-OL H
(Comanche Peak Steam Electric
)
l Station, Units 1 and 2)
)
l l
l CERTIFICATE OF SERVICE l
By my signature below, I hereby certify that true and correct copies of CASE'S OPPOSITION TO APPLICANTS' MOTION TO COMPEL have been sent to the persons listed below this 17th day l
= of March 1987 by:. Express mail where indicated by *; Hand-delivery where indicated by **; and First Class Mail unless l
otherwise indicated.
Administrative Judge Peter B. Bloch l>
U.S. Nuclear Regulatory Commission i
Washington, D.C.
20555 l
t Dr. Kenneth A. McCollom 1107 West Knapp
.Stillwater, Oklahoma 74075 Dr. Walter u. Jordan 881 W.
Outer Drive Oak Ridge, Tennessee 37830 Elizabeth B.
Johnson Oak Ridge National Eaboratory P.O.
Box X, Building 3500 Oak Ridge, TN 37830
r Robert'A.-Wooldridge, Esquire Worsham, Forsythe, Sampels
& Wooldridge
+
'2001 aryan Tower, Suite 3200.
Dallas, Texas 75201
.Geary S.-Mizuno, Esquire
' Office of Executive Legal Director
-U.S.. Nuclear. Regulatory Commission Washington, D.C.
20555' Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Renea hicks, Esquire Assistant Attorney General Environmental Protection Division Supreme Court Building
' Austin, Texas 78711 Mrs. Juanita Ellis President, CASE 1426 S.
Polk Dallas, Texas 75224 Mr. W.G. Counsil Executive Vice President Texas Utilities Generating Co.
Skyway Tower, 25th Floor 400 N. Olive Street Dallas, Texas 75201 Thomas Dignan, Esq.
Ropes & Gray 225 Franklin Street-Boston,' Massachusetts 02110 1
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ANTH 6.
RolSMAN
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