ML20209G551
| ML20209G551 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 04/27/1987 |
| From: | Ellis J Citizens Association for Sound Energy |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3290 OL, NUDOCS 8705010014 | |
| Download: ML20209G551 (13) | |
Text
.. p7 d c
00CMETED CNN0002 04/27/87-N/A CASE's Response to Apps.' i APR 29 mci 43 'C~
4/10/87 Response to' Sets 5-8 and Apps.' Motion to Compel- -GFFKCr# E * '
N/A CUCell' ; ' '.
N/A l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .
f' BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of }{
}{
TEXAS UTILITIES ELECTRIC }{ , Docket Nos. 50-445-OL COMPANY, et al. }{- and-50-446-OL (Comanche Peak Steam Electric }{
Station, Units 1 and 2) }{ (Application for an
}{ Operating Lithnse)
}{ '
CASE'S RESPONSE TO APPLICANTS' 4/10/87 RESPONSE 10 CASE MOTIONS FOR A PROTECTIVE ORDER (INTERROGATORIES 1987-5, -6, -7 & -8) AND MOTION TO COMPEL s
CASE (Citizens Association for Sound Energy), Intervenor herein, hereby files this, its Response to Applicants' 4/10/87 Response to CASE Motions for-Protective Order (Interrogatories 1987-5, -6, -7 & -8) and Motio'a'ro Compel 1/.
Sets 1987-5 and 1987-8 -
l Applicants acknowledge that the Board's 3/30/87 Memorandum and Order
( Applicants' Motion To Compel) denying Applications' Motion to Compel regarding Set No. 1987-3 also applies to sets 1987-5 and 1987-8 (Applicants' Response at pages 10 and 11). CASE therefore does not believe it is necessary to address these two sets further at this time, unless the Board indicates otherwise.
i 8705010014 870427 PDR ADOCK 05000445 1
- G PDR i
f
- - - y.,y r, -.mmyr-- - - - r -..m7r- r-s, , _ -- . _, e.-- , ,, - , - <
e i
~
k- . . ~- -
. l
~
l e # ~ Set 1987-6 y
'e' - je
,J Nowhere in Applicants' discussion of this set is recognition of the fact pa-- that, aside f rom any of CASE's objections to Applicants' interrogatory, CASE u
29 answered the question to ,the best of our ability at this time (CASE's 3/20/87 response at pagesI2 and 3):
" CASE does not yet know-whether we will have expert witnesses who will SN testify regarding any issues in these proceedings in.the future. Once P'~ CASE has made'its decision in this regard, ' CASE will advise the Applicants,'the NRC Staff, and the Board in this regard. In short,
- when the time is ripe, Applicants will receive the e.ssence of that p+
which they now seek, to the extent it would ever be discoverable- . . ."
,~
n , s:
At the bottom of'page 3 of Applicants' 4/10/87 response, Applicants state:
" CASE's current] position -- 1,.e., that the veil concealing information
'r.
hx about experts is'all-inclusive -- is belied by, among other things, R
the f act that CASE has propounded a large number of interrogatories concerning the Applicants' expe r ts .' The Board has allowed a number of
.) these interrogatories over the7Applic, ants' objection. E.g., Tr.
C 24793." ,
'~:q.
Judge Bloch .' speaking for the Board during the 12/15/86 prehearing
> .. t conference, stated (Ter , 24793/13-24794/3):
F v "We consider this primarily to be a factual question not a legal question, because our consideration of what the CPRT is just does not allow us to accept the view that all of the people hired as consultants by the CPRT are consultants engaged for the purpose of litigation.
"It is quite clear that the CPRT is being done in order to identify problems-in this plant and to correct those problems and that the work of the CPRT will be directly utilized by CPSES people, in order to correct deviations found in this plant.
"Having said that, it is possible that there are some people who truly arb being engaged in the CPRT process solely for the purpose of s- litigation, but our view is that that would be a limited and special case, and these would not be the people who are in the regular process of identifying plant problems."
l Applicants' appareatly infinite ability to refuse to accept the Board's
+
rulings is again made obvious by their statements. This is even more amazing at I
this point in time because of the fact that Applicants have now removed Gibbs 6 i
2 4 ,
4 i . w-
,m, - - . . , - ,. - , _ _ . , , - , - - - _ _ - , - _ . .
e Hill as Architect / Engineer (taking over that function themselves f2/) and, by their own admission, are already engaged in Corrective Action Programs to help co rrec t some of the numerous problems already identified at Comanche Peak2 [3/.
If there had been any doubt before (and CASE does not believe there was),
Applicants' own recent statements and actions have confirmed the correctness of the Board's ruling during the 12/15/86 prehearing conference.
At the same time, Applicants choose to ignore the fact that (as much as Applicants would like for it to be, and as hard as they try to make it) the burden of proof is not on CASE or its experts to identify all of the problems at Comanche Peak (and we are certain that we have not done so), nor to correct the problems perpetrated by Applicants themselves at Comanche Peak. There is no requirement that CASE have any experts testify regarding Comanche Peak (indeed, CASE would be extremely happy if we never again had to have any witnesses testify, and there is always the possibility that the testimony of Applicants' witnesses will be so persuasive that it will persuade even CASE that we do not need to have any witnesses testify f4,/). Although there is no requirement of which we are aware that Applicants have any witnesses testify either, it is Applicants who must persuade the NRC and the Licensing Board that Comanche Peak has been designed and constructed such that the public health and safety will not be jeopardized -- not CASE who must persuade otherwise. Applicants' attempt to use the argument that they only are attempting to ". . . extract from CASE only the same discovery that the Applicants have been required to give" therefore has no validity in this instance. In any event, as mentioned earlier, CASE has already answered the question to the best of our ability at this time, and clearly any of CASC's experts (unlike some or all of Applicants') would fall into the category of non-testifying experts at this time.
l 3
Applicants' statement at the top of page 4, "the purpose ot this interrogatory was to extract from CASE only the same discovery that the Applicants have been required to give" is particularly misleading in one important respect. Contrary to Applicants' assertion, they have not been required to icentify each and every expert they have retained or with whom they have consulted with respect to the identification and/or correction of any problems at Comanche Peak or the review or assessment of the adequacy or performance of the Applicants or the CPRT in any respect, including, without limiting the generality of the foregoing, the person (s) with whom Applicants consulted and/or who assisted Applicants in the formation of its interrogatories (which is the equivalent of what they are asking of CASE).
It is not clear f rom Applicants' 4/10/87 filing whether or not they are still pushing for identification of "the person (s) with whom CASE consulted and/or who assisted CASE in the formulation of its CPRT Interrogatories - Set No. 12." CASE addressed this generally in our Response, and specifically at the top of page 5, first paragraph; we stand on our statements therein.
In the first paragraph of Footnote 3 on page 4, Applicants again demonstrate an apparent inability and/or unwillingness to simply pick up the phone and ask what CASE means if Applicants do not understand something. The reasons for CASE's comments r'eferenced it. tnat Footnote were, CASE believes, quite clear in its filing. It is Applicants' own wording which is the problem, since they stated that "this interrogatory is not limited in scope." CASE discussed this specifically in the first full paragraph on page 3 of our filing and we refer the Board to that discussion. To make it even clearer, CASE does indeed believe that it is under a continuing duty to supplement its list of f
testifying experts pursuant to 10 CFR 2.740(e)(1), just as we believe Applicants and the NRC Staff are under such a continuing obligation. It should also be f
l l
t -
I k
1 noted, however, that CASE (to make absolutely sure that Applicants supplement their answers to such past interrogatories by CASE, and because of the changes which have been made over time in Applicants' counsel which could easily lead to overlooking such details) has also again asked similar interrogatories -- and received similar answers (see Applicants' 7/28/86 Responses to CASE's 6/30/86 Interrogatories and Request for Documents and Motion for Protective Order, Response to Interrogatory No. 75, pages 91 through 94). CASE has no quarrel with Applicants' desire to know who CASE's witnesses will be; we simply don't know yet -- as we have plainly already stated in our answer to Applicants' Inte rrogato ry.
With regard to the second paragraph of Applicants' Footnote 3, CASE does indeed consider any whistleblowers to be " experts" within the meaning of the NRC Rules. CASE also considers any such whistleblowers to be non-testifying experts at this point in time. Again, CASE has already answered the question. CASE must comment on the statement by Applicants:
"If, however, any so-called "whistleblowers" truly are intended to be offered as experts at trial by CASE, the Applicants are not aware of any principle of discovery that would allow the testimony of this class of witness to be offered as a surprise. The Rules of Practice, like the Federal Rules, do away with trial by ambush."
If CASE decides to offer any whistleblowers as experts at trial, certainly there is no reason to believe (or for Applicants to imply, as they have here) that such testimony would be " offered as a surprise" or that uAac plans to engage in
" trial by ambush." The testimony of all of CASE's witnesses will be prefiled to the extent required by the Board of the parties and on a timetable set by the Board (hopef ully with the concurrence of all parties). CASC sincerely hopes that the Board will not allow Applicants, in what will undoubtedly at that time be their haste to get to hearings, to so rush things that there is not 5
i .
I sufficient time for adequate discovery (including the possibility of I
depositions) and that the Board will' assure that the due process rights of all 1
3 parties are protected. We note, however, that there is always the possibility 1
that experts may be offered as rebuttal witnesses; the Board has not in the pass i
t required prefiled testimony f rom such witnesses. Indeed, this would often be difficult if not impossible (as well as possibly delaying the proceedings) since such rebuttal testimony would often depend on the prefiled or cross-examination testimony of other witnesses. With further reference to this matter, CASE calls l the Board's attention specifically to the discussion on pages 3 through 9 of CASE's 3/20/87 Response.
1 SET 1987-7 We note, first of all, Applicants' reference in their Footnote 5, on page 5, to " Applicants' Response to CASE's Objections to Motion for Establishment of l
j a Hearing Schedule" (which they incorrectly state was filed April 7, 1986; it 1
l was actually filed April 17, 1986), at page 3, Footnote 3. That Footnote contained the same tired argument by Applicants that (although they state that they will abide by the Board's ruling) " Contention 5 was inadequate to cause design 0A to become a contested issue in these proceedings." This is a matter long ago put to bed by the Board -- it's just that Applicants are still refusing 1 to admit it. CASE addressed this in some detail in its 11/4/85 (Main Docket)
! Answer to before the Appeal Board to Applicants' 10/21/85 Petition for Directed l
l Certification of Licensing Board Order of October 2,1985 (including, but not i
limited to, pages 12 through 26); see also Board's 3/15/84 Memorandum (Clarification of Open issues), first full paragraph on page 5, under which i design issues could also now obviously be included if necessary (which it is not). Applicants apparently plan to continue to keep fighting yesterday's i
i 6 i
4
}
}. . _ _ . _ . . _ _ . , _ _ _ _ . . , _ _ , , , _ _ _ . . , _ _ , - , . _ _ _ _ , _ , , . , , , , , , , .__,,,m_... ,, _____--__-m . , .
battle and have again profusely demonstrated their unwillingness to accept the Board's rulings -- a ploy which they apparently pian to continue throughout the remainder of these proceedings.
With regard to Applicants' statement that " Applicants cannot be certain that this term [the Walsh/Doyle issues], which has never been pinned down with precision, is being used by all parties to mean the same thing," CASE cannot help Applicants with this on' -- we don't know whether or not it is either. And we don't believe it's CASE's responsibility.to determine whether or not it is, or to see that it is.
CASE does not see how there can be any doubt, however, that "whatever issues are in fact subsumed within the phrase 'Walsh/Doyle issues' remain subjects la contention." Certainly there should be no doubt in Applicants' minds if they read CASE's entire 3/23/87 Response (see especially page 9, paragraph 3, through page 10, paragraph 2), which includes such statements as "These [the implementation of Applicants' initial plan (as set forth in the FSAR) or any subsequent plans, the implementation of those plans, how and why Comanche Peak came to be in the unlicensable condition it was and still is (i.e., root cause), management's role in the problems and the manner in which management dealt with them, and the generic implications of all of these things]
continue [present tense] to be CASE concerns" and "we are (present tense]
concerned about the design of the entire plant." If Applicants still are not certain, CASE will state here and nou that, yes, we are still at this tima concerned about the design / design QA of the entire Comanche Peak plant (which we guess would pretty much " subsume" what have come to be known as the Walsh/Doyle issues). The pcint that Applicants don't seem to understand is that CASE does not really care what the concerns are called -- we are far more concerned that they be addressed and adequately dealt with. And we again call attention to the 7
fact that, as we stated specifically in our Response (page 10, second full paragraph): " CASE's concerns regarding the design / design QA of Comanche Peak are not necessarily bounded by the original or current Walsh/Doyle Allegations."
At least in addressing CASE's Response to Set 1987-7, Applicants do admit 4
that CASE provided answers (although they apparently are not happy with those answers). We are somewhat puzzled by Applicants' statements in the first full paragraph on page 6. We do not agree with Applicants' assessment that we have offered "an answer which indicates that CASE has no clearer idea than do the Applicants what 'Walsh/Doyle issues' or 'Walsh/Doyle allegations' means." The design / design QA problems at Comanche Peak are enormous. They have been developed over a period of years in numerous hearings, pleadings, motions for summary disposition and responses, etc.; they do not lend themselves easily to simple categorizing because many of them are complex and interlocking. CASE is not responsible for the state of the record; it is not our responsibility to catalog the issues for Applicants in a single, simplistic document (although CASE's 8/22/83 Proposed Findings of Fact and Conclusions of Law (Walsh/Doyle Allegations) was indexed in what should be a helpful manner, as far as it went).
In fact, CASE went to a lot of time, trouble, and effort to answer the question as responsively as possible a,nd to the best of our ability, within the limitations discussed on pages 5 through 10 of our 3/23/87 Response. Apparently what Applicants are looking for is a little bottle to try to stuff the design / design QA genie back into. The Board's 12/28/83 Order still stands --
the design of the entire plant is still in question. The genie is out and l
apparently growing bigger every day (as confirmed by the fact that Applicants f have already begun extensive Corrective Action Programs based just on what they have learned no far from their CPRT/SWEC/IMPELL/EBASCO/ETC. efforts).
8
4 We further. note that some of Applicants' statements (especially on pages 7 .
and 8) are confusing, since they seem to indicate that Applicants' CPRT Plan does not in any way include, or has nothing whatsoever to do with, the Walsh/Doyle Issues, even if the Walsh/Doyle issues are defined to include the design of the entire plant. If Applicants' reference to " doubt about compliance with 10 CFR 2.708(c)" is merely meant to cast aspersions on CASE's Dallas i
representative, who is not and has never claimed to be an attorney, this would not be the first such time Applicants' counsel have engaged in such tactics. If
, this was Applicants' intention, however, CASE would appreciatI th'e Board's assistance in seeing to it that it is the last such time.
As CASE understands past Board rulings, the Board has consistently held that arguments need not be heard regarding objections filed by a party, as long as the party answered the interrogatories anyway (which CASE's non-lawyer Dallas representative confesses she still does not completely understand but
. nonetheless accepts). CASE filed a 5-line objection to Applicants' 1
! Interrogatory 1, then supplied a 6-page answer. CASE believes that it has suf ficiently answered Applicants' Interrogatory 1. If the Board believes that our answers are deficieat, we ask that it so advise and we will do our best to attempt to comply with any Board directives requiring further responses.
2
-f i With regard to Applicants' Interrogatory 2 and 3 (Applicants' 4/10/87 Response beginning at page 8), CASE believes that it has adequately answered both interrogatories to the best of our ability at this time (Interrogatory 2 Answer on page 13 and Interrogatory 3 Answer on page 14 of CASE's 3/23/87 Response) /5/. If the Board believes that our answers are deficient, we ask that it so advise and we will do our best to attempt to enmply with any Board i
directives requiring further responses.
i l 9 s
I i
- ,..- -. ,- . . - . - _ _ _ - - . _ . - . - . . . . , . , .- .. .. .-. .~ - - __- _ .
1 1
Respectfully submitted,
~
f)A D prs.)JuanitaEllis, President CASE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 ,
Co-Representative for CASE e
t
~
,2 ' = N *s, b l' a y
\ '
'{
a ,. -g Q__ _,
,s.
h 10
. -. - . . . . . _ ~ . -- . - . -- -- -. ..
s 4
i i ;[l/ Applicants' 4/10/87 Response was in answer to CASE's 3/20/87 Response to I Applicants' '2/24/87 Interrogatories to Intervenor (Set No.1987-5) and Motion for Protective Order, CASE's 3/20/87 Response to Applicants' 2/26/87 Interrogatories to Intervenor (Set No.1987-6) and Motion for Protective i Order, CASE's 3/23/87 Response to Applicants' 2/26/87 Interrogtories to Intervenor (Set No.1987-7) and Motion for Protective Order, and CASE's j 3/23/87 Response to Applicants' 2/24/87 Interrogatories to Intervenor (Set No. 1987-8) and Motion for Protective Order.
/2/ See CASE's 12/30/86 letter to Board under
Subject:
Potentially Significant Items, discussion at item 2 and attached two FSAR pages 1.4-3 (Amendment 46, February 10, 1984, and Amendment 60, November 3, 1986).
/3/ See 4/23/87 letter to Board from Applicants' counsel Mr. Gad (regarding Applicants' Fifth Progress Report due 4/1/87); see also 4/24/87 letter to Mr. James E. Keppler, Director, NRC Office of Special Cases, from CASE's co-counsel Ms. Garde, Re: Comanche Peak.
f4/ Although this is admittedly a remote possibility based on the past record of these proceedings, one can always hope.
f5/ With regard to Interrogatory 3, CASE's primary representative must have i sufficient time to review discovery and other materials received and discuss them with CASE's non-testifying experts before CASE can take a position that an issue has been resolved to the satisfaction of CASE. This means that, to the extent that her other necessary duties in these a proceedings (such as having to file pleadings such as this) prevent her
- from being able to sit down and read and analyze and discuss discovery
- documents, her review may necessarily be slower than that of CASE's non-
! testifying experts. To e.he extent that Applicants' attorneys may be using i this as a tacti- (which CASE's primary representative believes is the case), it will ar.ty se rve to delay the proceedings and result in what may, in many instances, be unnecessary confrontation rather than agreement.
a J
J.
1 t
t t
.I 11 .
1
-- - - ,,,, - . - - . - - _ _ - ~ _ _ - - . - - - - . - - . . - - . -- . - , - - _ , - , - -
DOLKETED U9if C
'87 APR 29 #0:44 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION {fFi 0 g ipg ERANCu BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of }{
}{
TEXAS UTILITIES ELECTRIC }{ Docket Nos. 50-445 COMPANY, et al. }{ and 50-446 (Comanche Peak Steam Electric }{ .
Station, Units 1 and 2) }{
CERTIFICATE OF SERVICE By my signature below, I hereby certify that true and correct copies of ~
CASE's Response to Applicants' 4/10/87 Response to CASE Motions for a Protective Order (Interrogatories 1987-5, -6, -7 & -8) and Motion to Compel have been sent to the names listed below this 27th day of April ,198j[,
by: Express Mail where indicated by
- and First Class Mail elsewhere.
- Administrative Judge Peter B. Bloch Thomas C. Dignan, Jr., Esq.
U. S. Nuclear Regulatory Commission Ropes & Gray 4350 East / West Highway, 4th Floor 225 Franklin Street .
Bethesda, Maryland 20814 Boston, Massachusetts 02110 .
Judge Elizabeth B. Johnpon Oak Ridge National Laboratory Geary S. Mizuno, Esq.
P. O. Box X, Building 3500 Office of Executive Legal Oak Ridge, Tennessee 37830 Director U. S. Nuclear Regulatory Dr. Kenneth A. McCollom Commission 1107 West Knapp Street Washington, D. C. 20555 Stillwater, Oklahoma 74075 Dr. Walter H. Jordan Chairman, Atomic Safety and Licensint 881 W. Outer Drive Board Panel Oak Ridge, Tennessee 37830 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 1
Chairman Renea Hicks, Esq.
Atomic Safety and Licensing Appeal Assistant Attorney General Board Panel Environmental Protection Division U. S. Nuclear Regulatory Commission Supreme Court Building Washington, D. C. 20555 Austin, Texas 78711 Mr. Robert Martin Anthony Z. Roisman, Esq.
Regional Administrator, Region IV Trial Lawyers for Public Justice U. S. Nuclear Regulatory Commission 2000 P Street, N. W. , Suite 611 611 Ryan Plaza Dr., Suite 1000 Washington, D. C. 20036 Arlington, Texas 76011 Mr. Herman Alderman Lanny A. Sinkin Staff Engineer -
Christic Institute Advisory Committee for Reactor 1324 North Capitol Street Safeguards (MS H-1016)
Washington, D. C. 20002 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. David H. Boltz 2012 S. Polk Dallas, Texas 75224 Robert A. Wooldridge, Esq.
Worsham, Forsythe, Sampels William Counsil, Vice President & Wooldridge Texas Utilities Generating Company 2001 Bryan Tower, Suite 3200 Skyway Tower Dallas, Texas 75201 400 North Olive St. , L.B. 81 Dallas, Texas 75201 Robert A. Jablon, Esq.
Spiegel & McDiarmid Docketing and Service Section 1350 New York Avenue, N.W.
(3 copies) Washington, D. C. 20005-4798 Office of the Secretary U. S. Nuclear Regulatory Commission Ms. Nancy H. Williams Washington, D. C. 20555 Project Manager Cygna Energy Services Ms. Billie P. Garde 101 California Street, Suite 1000
, Government Accountability Project San Francisco, California Midwest Office 94111-5894 3424 N. Marcos Lane Appleton, Wisconsin 5491I Hark D. Nozette, Counselor at Law Heron, Burchette, Ruckert & Rothwell 1025 Thomas Jefferson Street, N. W.,
Suite 700 Washington, D. C. 20007 JL. O /fu fpt~.) Juan'ita Ellis, President sh\SE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 2
- ,_ --,... - --w.-,w s ---, ,, _ -,.-yy.
y , , _ , - - y,,.,__ . . _ - . . - _-- , . , _ , , .
. . . .,____-.-._,._yw,w