ML20214J751
| ML20214J751 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 08/11/1986 |
| From: | Citizens Association for Sound Energy |
| To: | |
| Shared Package | |
| ML20214J744 | List: |
| References | |
| OL, NUDOCS 8608150159 | |
| Download: ML20214J751 (27) | |
Text
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BEFORE THE hfyj EO r UNITED STATES NUCLEAR REGULATORY COMMISSION - .
g'AUS14 Before the Atomic Safety and Licensing Board 0.1;
[NP ,_ ,,
In the Matter of ) >> 4,
)
TEXAS UTILITIES GENERATING COMPANY, ) Dkt. Nos. 50-445-OL et al. ) 50-446-OL
)
(Comanche Peak Steam Electric )
Station, Units 1 and 2) )
OBSTACLES PREVENTING CASE FROM IDENTIFYING, OBTAINING, AND REVIEWING DOCUMENTS REQUESTED FROM APPLICANTS Attachment to CASE Progress Report (I)
G
IMPEDIMENTS TO REVIEW OF NECESSARY MATERIALS This portion of CASE's Progress Report discusses some of the many impediments to, and dif ficulties experienced in connection with, getting and processing necessary materiale and information provided by the Applicants, as viewed by CASE's representative in Dallas, not only insofar as it relates to issues in the hearings with which she is especially concerned and involved (most notably, but not exclusively, design / design OA issues) but also from the perspective of her efforts to assist CASE's Washington-based representatives in obtaining asterials necessary for their work and her overview and knowledge of the past history of these proceedings.
As discussed elsewhere in this filing, CASE is still in the process of attempting to obtain discovery, reviewing documents being provided on discovery, and awaiting additional necessary information as to Applicants' reviews, analyses, redesign, and reconstruction of Comanche Peak. Regarding design issues, Applicants have only recently supplied CASE with two Stone &
Webster documents (see more complete discussion in Bibliographies under
" Stone & Webster Documents"), which we are currently reviewing and regarding which we are attempting to obtain further Information. CASE is still awaiting additional information fren Applicants to Cygna (see more complete discussion in Bibliographies under "Cygna Reports, Letters, Telecoms, etc.).
Applicants have obviously issued no completed DSAP's yet, so we have nothing I
to review in that regard. Since Applicants do not wish to provide CASE with documents for items that are in process, CASE's access to the actual design documents is extremely limited. At this point in time, CASE is having some difficulty even getting sufficient Information from Applicants to determine
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. t what the status is of what they are doing with design / design OA work, who's doing what, and when CASE can expect to get necessary information and documents.
We have already filed (and will be filing more) Interrogatories and requests for documents regarding these matters.
In addition, when meetings between the NRC Staff and the Applicants are held in Bethesda regarding design issues, those with CASE who are working on those issues must await the transcript before we know what went on (a case in point is the meeting being held Thursday, August 28, 1986, in Bethesda with the purpose stated to be:
"For Texas Utilities to describe a proposed amendment to the FSAR sith regard to the reanalysis / redesign of piping and pipe supports by Stone & Webster"; see 8/4/86 meeting notice). CASE has found that attempting to tape record such meetings is inefficient, impractical, and of relatively little value since such recordings are usually very hard to hear, one cannot tell who is talking much of the time, and they are extremely difficult (at times impossible) and time-consuming to transcribe (although we have attempted to do so when we thought the timing of getting the information into the hands of Messrs. Walsh and Doyle was of sufficient importance).
Discovery disputes continue to be one of the most troublesome and time-consuming problems CASE is encountering. CASE is attempting to sift through all of the information received recently in an effort to keep from having to involve the Board in discovery disputes and to see if recent answers may remove the necessity of pursuing motions to compel regarding earlier interrogatories. This effort has been complicated by the necessity 2
. i to also review the recently received Stone & Webster information (totalling approximately 6 inches thick). Obviously, it will take CASE quite some time to thoroughly review these documents, which it took Applicants and Stone & Webster many months to prepare. As to the status of discovery, however, it is apparent that it will be necessary to file motions to compel regarding many of our interrogatories and requests for documents.
As the Board is aware and as evidenced from the pleadings, the Applicants are refusing to answer many of our interrogatories or giving inadequate answers, and it seems that every answer from them these days includes a request for a protective order. This forces CASE to spend valuable time and effort, which could be much better spent on other more productive matters, into filing motions to compel on virtually everything. By twisting the system in a manner in which it was never intended to be used, Applicants still win even when the Board orders them to go ahead and adequately respond to discovery requests, because it may take two or three months and a significant amount of CASE's time and effort before Applicants finally provide CASE with what should have legitimately been provided initially. An additional possibility which works in Applicants' favor l's that CASE might not follow through on all items regarding which it should file motions to compel simply because of the volume of other work, thereby relieving l
l Applicants of having to respond to a motion to compel. (It should be noted, however, that CASE makes no attempt here to respond to recent statements by Applicants which mischaracterize the status of CASE's options to file motions to compel; this matter will be discussed when we file such motions.)
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o All of this is combined with, and complicated by, the additional problems of Applicants' position that they don't want to release anything that involves what they claim are in process CPRT documents, and other specific problems detailed in the following. Applicants seem to be making no effort to make the progress move more efficiently and expeditiously; to the contrary, in many regards they appear to be attempting to do just the opposite, as discussed in the following.
COSTS One of the primary difficulties CASE is currently experiencing is that Applicants are charging us what is, under the circumstances, an outrageously high price for making copies of necessary documents. This, in conjunction with Applicants current requirements regarding the manner in which we are allowed to review documents, is interfering with CASE's ability to do our work in an efficient, orderly manner which will help assure that the Board has an adequate record upon which to base its ultimate decision. (It is well recognized and required by NRC regulations that the Board has the responsibility to assure the adequacy of the record, as has been noted by the Board itself; e.g.,, Board's 2/8/84 Memorandum and Order (Reconsideration Ccncerning Quality Assurance for Design), first paragraph, page 36.)
CASE paid 15 cents a page for copies for years, without complaint, and considered it a normal and necessary part of the expenses of our Intervention. In fact, a review reveals that CASE has already paid Texas Ut111tles $7,977.50 for copies at 15 cents a page (also included is the cost 1
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of copies of a few slides of the overexcavation/ rock overbreak). (We do not believe Applicants will quarrel with this figure; however, we are prepared to file an offer of proof should the Board require and allow it.)
In ant icipation of a possible objection by Applicants that the Board is not supposed to consider costs (although Applicants themselves have raised the matter recently in regard to the costs to them), CASE would point out some of the Board's previous Memoranda and Orders. After the Board's 12/28/83 Memorandum and Order (Quality Assurance for Design), wherein the Board stated that the design of the entire plant is now in question, the Board stated in its 2/8/84 Memorandum and Order (Reconsideration Concerning Quality Assurance for Design) (excerpted from pages 35 and 36):
"We are permitting Applicant to reopen the record without a showing of good cause because it does not seem to us logical or proper to close down a multi-billion dollar nuclear plant because of a deficiency of proof. While there would be some ' justice' to such a proposition, there would be no sense to it. . . .
"In one sense, the reopening of the re~ cord does not seem fair.
CASE has been put to unnecessary expense because it will have to prove its case twice. In addition, the need to continue disputing an already closed issue is an unnecessary tax on its volunteer resources."
Apparently Applicants themselves recognized the additional expense to CASE which would be caused by their being allowed the unprecedented opportunity of reopening the record without a showing of good cause, and when they came up with their Plan to respond to the Board's concerns expressed in its 12/28/83 Order, CASE's representative Mrs. Ellis was promised by Applicants' counsel Mr. Reynolds that we would be supplied with all the documents we wanted at no cost (with the implied caveat, of course, 5
that such documents were relevant and should normally have been supplied in response to legitimate discovery requests). This was, in fact, what occurred.
Regarding Applicants' Motions for Summary Disposition, CASE was provided by Applicants , at no cost , three copies of responses to
' interrogatories and discovery documents (one each for Jack Doyle, Mark Walsh, and Mrs. Ellis); further, these documents were mailed to Mrs. Ellis at Applicants' expense, rather than our being required to come look at them.
In addition, CASE was provided with copies of telecoms, letters, documents, and correspondence from Cygna to and from Applicants, at no cost. In the case of Cygna, Mrs. Ellis usually received only one copy, except for once or twice when we requested and were supplied with three copies, such as the Phase 3 Cygna Report itself, and to the best of Mrs. Ellis' recollection at this time, some documents received immediately before and during the Cygna hearings. CASE made every effort not to request documents which we did not believe we really needed and did not abuse discovery. With regard to the third part of Applicants' 1984 Plan, we have only recently received any information, other than his resume, regarding Applicants' expert from the
> academic community, Dr. Boresi (and there is still additional Information to I
come, which Applicants are supposed to advise us of when they receive it l
from Dr. Boresi); however, we assume that had we received any relevant discovery documents under Applicants' 1984 Plan, they would have been l supplied in the same manner as the other two prongs of Applicants' Plan, at i
no cost to CASE.
l The Board is well aware of the circumstances surrounding Applicants' 1
apparent curta11 ment of their 1984 "get well" Plan and the withdrawal --
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O over CASE's strenuous objections -- of their Motions for Summary Disposition. The Board has recognized the additional unnecessary costs to CASE, and it stated in its 10/29/85 Memorandum and Order (Status of Pending Motions) (pages 6 and 7):
" 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 Disposition 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. . .
". . . we expect responsible behavior on both sides and will not look favorably on technical objections from Applicants unless supported by clear and persuasive reasoning. When the problem is merely one of inconvenience or of limited expense, we expect Applicants to cooperate voluntarily with the intervenors.
". . 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 [and subsequently did] withdraw their summary disposition motions on a second occasion. The policy on interrogatories was not designed with this litigation posture in mind."
The Board has also recognized that CASE has now prevailed twice in these proceedings; it stated in its 6/12/86 Memorandum and Order (Scheduling of Hearings), page 2:
"It [ CASE) prevailed in December 1983 when we found that the Applicants had not sustained the burden of proof with respect to the safety of design of their plant. It prevailed again when Applicants decided to withdraw all of their filings made pursuant to their approved plan by which they were attempting to demonstrate the inadequacy of the Board's findings about design."
Applicants seem to be of the opinion that to prevall in an NRC operating license proceeding means, for an Intervenor: Congratulations!
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You wint So you lose - you get to relitigate everything all over again . . .
and again . . . and again . . . and again . .......
Contrary to the Board's admonition that "When the problem is merely one of inconvenience or of limited expense, we expect Applicants to cooperate voluntarily with the intervenors," Applicants now seem to be attempting to price CASE out of the market and to win by default what they have been unable to win by documented evidence. They have now changed their previous policy which was followed during Applicants' 1984 "get well" Plan, regarding copying costs on design issues by now requiring CASE to come view '
the documents during Applicants' usual business hours (which often differ considerably from CASE's usual business hours), pay 15 cents a page for each page copied (thus necessitating CASE's having to then make additional copies on our own time, at our own additional expense, for our two engineering witnesses; as discussed later herein, similar problems exist regarding other-than-design documents, where there is often some overlapping between what CASE in Dallas and CASE's Washington-based representatives are working on).
CASE's Hra. Ellis and Applicants' counsel Mr. Wooldridge have attempted to reach some kind of reasonable settlement regarding copying costs which was mutually acceptable; however, we were unable to do so. Our discussions l were limited to costs of copies (rather than whether or not CASE is entitled i
to specific documenta, which is a separate discovery question addressed elsewhere). And by mutual agreement, we are not discussing here specific proposals which were discussed (and assume that Applicants' counsel will do likewise in any response to this pleading).
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We therefore start from our current positions. As we understand Applicants' current position, it is thnt 15 cents a page is very reasonable, that it is a cost that is being charged intervenors in other licensing proceedings all over the country, that this is not a change in Applicants' past position, and that CASE should have to bear that cost. CASE's Mrs.
Ellis has done some research herself into what has been charged intervenors in some of the other licensing proceedings (and, here again, should the Board believe it necessary and allow it, we are prepared to file an offer of proof regarding her findings). (We also note that the NRC Public Document Room, which has its copying done by an outside organization which we assume but are not positive is a profit-making enterprise, only charges 5 cents per page for copies. Further, the NRC Staff should be able to shed some light on what intervenors at other plants are being charged for copies and to confirm CASE's statements or clarify or correct them.) CASE found that, although it may be true (we did not check out all plants) that some intervenors were being charged by the applicants for copies, at only one (Perry) of the six plants regarding which CASE checked, was the intervenor charged for copies, at 10 cents per page; at the other five, the intervenors were not charged for copies (in some instances because everything cas sent to the entire service list, especially where the process was being overviewed by the NRC Staff, and documents were received as part of that process). It is important to note that the intervenors were not charged for copies at any of the plants which were similar to Comanche Peak (i.e.,
undergoing extensive Ieinspections). At Zimmer, documents were sent to the service list. At Midland, documents were supplied to the Intervenor at no 9
charge. And at Diablo Canyon, which is probably the most slallar to Comanche Peak (although even there, it is CASE's understanding that they were not in the third iteration concerning design as we are at Comanche Peak), the Intervenor was supplied with three free copies of everything by the utility -- a practice which CASE believes should be applied regarding Comanche. Peak on its third time around.
Thus, Comanche Peak (in addition to its often unique designs) is unique from other plants in yet another way, compared to the position taken by other utilities whose plants were undergoing somewhat similar reinspection programs. CASE has no way of knowing the reasoning behind Applicants' change in position regarding providing copies, or why they insist on continuing to give the distinct but unmistakable impression that they have much to hide. We do not know if it is a changed management position, or perhaps a changed litigation strategy. Perhaps they are simply mad at CASE as the bearer of bad news.
l Another puzzling aspect of Applicants' current position regarding costs of copies is that they are fully aware that any such costs would undoubtedly be passed right along to the ratepayers as a cost of doing business.
Certainly such costs represcat very limited expenses to Applicants in an operating license proceeding for their multibillion dollar plant (although j having to continue again and again to pay such expenses could be devastating i
to CASE). The public interest is not served by making CASE have to pay for copies regarding Applicants' third iteration. It is, in the pubile interest i'
for CASE to help to assure that the Board's decision is based on a full and accurate record, which would, in turn, also instill greater public i
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confidence in the utility, the NRC, and the completed plant. The NRC Staff has taken it upon themselves to assure as part of instilling public confidence in plants undergoing extensive reinspection that not only the Intervenors, but othere on the cervice list, received copies of everything.
There is no reason such a practice shouldn't be followed here.
In the face of all this, and the position of Applicants as compared to the positions of other utilities (who have apparently recognized that it would be neither fair nor even appropriate to attempt to force Intervenors to incur still more additional unnecessary costs because the utilities were given another chance), CASE can come to only one conclusion: that these Applicants are in fact afraid to provide us with the documents we seek --
afraid that (as was the case with the motions for summary disposition), CASE would then have still more proof of deficiencies -- but this time, deficiencies in Applicants' latest Plan and reinspection / redesign /
reconstruction efforts. Perhaps Applicants are simply afraid that if CASE were able to get the answers and documents we need and are entitled to, it would ultimately lead to the third -- and perhaps final -- strike against Applicants.
CASE, after being unable to reach agreement with Applicants' counsel regarding copying costs, has done the best we could under the circumstances.
However, it is becoming more and more obvious that the current situation is severely hampering CASE's ability to do its work. For example: In Applicants' 6/30/86 Additional Answers to CASE's " Credibility" Discovery Requests and Motion for Protective Order, Applicants stated (bottom of page I continued top of page 2):
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" Documents produced in response to these requests will be made available for inspection and copying at Applicants' of fices in Dallas. . . Copies of documents will be made for CASE at 15 ,
cents /page (see letters to Mrs. Ellis from Mr. Wooldridge, March 25, and June 11, 1986). For CASE's information, there are approximately 20,000 pages of documents being produced for inspection and copying (10,000 pages of which are documents i provided by Cygna in response to Question 1(f) of CASE's Fourth Set)."
Right after receiving Applicants' 6/30/86 responses, CASE asked that CASE Witness Mark Walsh and Mrs. Ellis be allowed to come down and view the documents being produced for inspection and copying. Since Mr. Walsh is currently working five days a week and our other engineering witness, Mr.
Doyle, is in Massachusetts (and both do well to be able to take time of f to come to hearings, at their own expense except for transportation, lodging, and food), we asked that we be allowed to come to review the documents on the 4th of July weekend while Mr. Walsh was off work. We were not allowed to do so. Subsequently, Mrs. Ellis did briefly review the documents and came to the conclusion that they should be seen by Messrs. Walsh and Doyle; however, because of competing cost considerations at that time, Mrs. Ellis had only a handful copied. 11casrs. Halsh and Doyle still do not have copies of, and have not reviewed, those documents.
( It should be noted that most of the documents involved had to do with Applicants' Motions for Summary Disposition in connection with credibility l
l 1ssues, and that Applicants had mailed three copies at their expense of some previous documents provided in response to those sets of questions (with some few exceptions; for instance, CASE recalls one specific instance where there was a large group of reports where we requested only one copy).
1 Further, although CASE's previous discovery requests regarding Cygna had not I
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been extensive, one copy of such requests had previously been provided to CASE at no charge (except for a few instances when three copies were 4
provided).
Applicants have also refused to allow CASE to borrow the documents (even overnight or on weekends) to make our own copies. This alone is at least tripling our copying costs as compared to what we could copy them ourselves for or have them copied outside. Were these the original and only copies of documents, there might be argued that there is at least some justification for Applicants' position. But this is not the case, at least regarding the vast majority of the documents. (And it certainly cannot be argued at all in the case of the 10,000 pages or so of Cygna documents referenced by Applicants in their 6/30/86 Additional Answers to CASE's
" Credibility" Discovery Requests and Motion for Protective Order; see quotation at page 12 of this section -- obviously Cygna would have retained a copy of what was sent.)
CASE is also being forced to pay additional costs because it is currently necessary to fly CASE's Washington-based representatives to Texas (either Dallas or Glen Rose) to review documents regarding issues on which they are working. This involves air travel costs, as well as costs for meals and at times for accommodations for one or more persons -- who are then barred from reviewing documents outside Applicants' usual business hours.
It is important that the Board recognize that to the extent that Applicants abandon previous practices regarding providing copies of design-related documents, force us to travel, force us to pay 15 cents a page for 13
- l copies, deny us access to documents on nights or weekends, they run up CASE's costs and erect barriers to our ability to do our work. And just as we are required to factor Applicants' costs into such things as scheduling and time, just as we were told that it would interfere with Applicants' process of reviewing documents and making their CPRT decisions on a timely basis to get in process access to documents, CASE believes that consideration should also be given to things that impede our ability.
Applicants are doing everything they can to make it difficult for us to review the documents, and to review and obtain copies of them inexpensively.
The net effect of this is that it has to slow down our process and our effic iency. Were the process being handled as it was at other plants with extensive reinspections (with CASE receiving three free copies or with copies being sent to everybody) CASE's representatives and witnesses could look at the documents in their own offices on their own timetables. (The ability to review documents at times and places convenient for CASE is an important consideration, since much of CASE's work, especially regarding design issues, is necessarily done at odd hours during days or nights when most people are relaxing or sleeping.) Further, such a process would be much more efficient since notes could be made directly on (or attached to) the documents the first time they were reviewed (rather than the current far less efficient and far more time-consuming process of having to review them i
once, then have them copied, and then have to review them again).
i in addition to the preceding, Applicants are throwing up other roadblocks to discovery as well, as discussed below.
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UNAVAILABILITY OR INACCESSABILITY OF DOCUMENTS Another problem (even if there were no problem with copying costs) which CASE is encountering is the unavailability or inaccessability of document s. This is discusseit in more detail elsewhere in this pleading. We have already detailed (page 12) some of the problems encountered with regard to review of design documents, and our not being allowed to review documents over the 4th of July weekend. Applicants would apparently have us believe at the same time that (1) no one works on weekends or holidays and (2) that some people are working all kinds of hours and losing lots of sleep. In any event, the Board should be aware that CASE has been allowed to review documents on holidays in Texas Utilities rate cases (e.g., Dr. and Mrs.
Boltz reviewed documents in Docket 5256 on Monday, Labor Day, September 5, 1983, at the Comanche Peak plantsite; should the Board require and allow it, CASE is prepar'd e to file an offer of proof regarding this).
Another problem is that documents are not all available in one location, but are split between Dallas and Glen Rose (and those in Glen Rose are not in one location, but are spread out in many different locations).
They are available only during Applicants' usual business hours (and, in Glen Rose, hours at the vault were recently changed to 6:30 A.M. to 3:30 P.H.). So, in addition to the costs of travel, etc., to and from i
Washington, the times of availability of documents is in some instances i
totally unreasonable. It would greatly increase the efficiency of CASE's work were copics available in both Washington and Dallas. Ilowever, if this is not possible, a good bit of these problems could be alleviated if CASE 1 15
were allowed to have possession of documents in Dallas on weekends or for 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> (or, in some instances, even overnight) so that we could copy them ourselves. (This would not be true in Glen Rose, however, because copying facilities are not. readily available there.)
Another aspect of this particular problem is that a lot of the materials which relate to specific issues, contrary to Applicants' representations, are not being produced anywhere, and CASE is having to ferret them out for ourselves.
DISCOVERY DISPUTES i
This has already been discussed somewhat on pages 2 and 3 of this section, and will be discussed still further in pleadings and during the prehearing conference currently scheduled for August 18 and 19, 1986, in Dallas.
CASE'S OTHER COSTS It is important to note that, in its preceding discussions of copying l and related costs, CASE is talking only about the costs for the initial raw data which we need to have to arrive at the documents we will eventually introduce into evidence. We are not asking that Applicants bear the costs of such copies, which CASE will still have to bear. This in itself is a tremendous cost, since it requires a ninimum of about twelve copies of each and every document introduced into evidence (plus any extra work copies for 16
CASE). Further, as the Board is aware, it has historically been CASE rather than Applicants or NRC Staff which has provided documents to the Board in many instances.
CASE is only saying that if Applicants are going to be allowed to abort old plans and come up with new ones over and over again, CASE should ret have to pay for the initial documents over and over again. It was not CASE which got Applicants into the mess they're in. It was not CASE who put thera in the pcsition of requiring the reinspection. According to Applicants, they are performing their reinspection / redesign / reconstruction efforts voluntarily and want to make them an issue in these proceedings. They should be required to provide the related documents.
IN CONCLUSION In this section, CASE has discussed problems we have encountered regarding just a few of the tremendous costs of our intervention in the I
Comsnche Peak proceedings, along with some other problems which is making l
our work difficult if not impossible to accomplish in an orderly, efficient manner. Applicants' reinspection / redesign / reconstruction program is massive. CASE's discovery (although obviously not of the same size) must necessarily also be massive. Our review and analyses will require a tremendous amount of time, ef fort, and money at best -- but the conditions under which we are heing forced to work at present are far from being the best. CASE's difficulties are already exacerbated by the fact that CASE is operating with significantly fewer people. Applicants' efforts to further 1
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impede and delay our progress by deliberate barriers of increased unnecessary costs, unavailability or inaccessability of documents, etc., as outlined ir. the preceding are making our work still more difficult.
l In the June 11, 1986, letter from Applicants' counsel Mr. Wooldridge to CASE's Mrs. Ellis (referenced Jn Applicants' 6/30/86 Additional Answers to CASE's " Credibility" Discovery Requests and Motion for Protective Order),
he stated:
"I have not heard back from you in connection with our previous offer to compromise the question regarding copying costs nor have I seen any formal motion with the Board. While I would like to work the matter out with you, we cannot continue to finance your copying costs and, unless I hear from you one way or the other within the next couple of weeks, we will have no alternative but to discontinue making copies available until outstanding bills are
, paid."
Unlike the Applicants, CASE does not have the resources of the ratepayers of a third of the State of Texas to pay the costs of our intervention in these proceedings. Our flow of income to meet the continuing and increasing costs of intervening is slow, especially at this particular depressed time in Texas. Because Applicants have warned that we cannot build up too large a debt for copying costs and have, in fact, now l threatened to cut off our copies entirely unless we pay the outstanding copy costs, we necessarily have to look at and copy the documents less frequently than we would otherwise because we simply cannot afford to pay enough noney to fly people down to look at them and to copy them all at once. This, in turn, is stretching out our time because of economic considerations.
Realizing that that has to be taken into consideration is no different than the utility asking to be able to postpone giving CASE access to the documents months ago (when we had easier access to funds) when Applicants i
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had the documents but felt thar it was inconvenient for them to make them available to us while in process.
It is obvious that the time has come for the Board to take steps to ;
increase the fairness and efficiency of the process, and to keep CASE's due process rights from becoming irreparably damaged by Applicants' deliberate actions.
The Board has the authority and the responsibility to see that these proceedings are managed efficiently and that it has a complete record on which to base its decision. Only in this way will CASE be able to properly prepare its case and assure that what is presented to the Board can be presented in an orderly and efficient fashion, and in such a manner that the Board can clearly and easily understand what the issues in controversy really are and the underlying factual bases for those controversies.
One overriding difficulty with which CASE is faced is the enormous costs (in time, effort, and finances) which we are being forced to absorb as the privilege and price we have to pay for having won twice and for identifying problems at Comanche Peak.
It is ironic and at the same time i
disconcerting that the Applicants apparently still do not realize the l gravity of the situation. They still do not seem to be able to accept the I
fact that the reinspection effort which is underway has already confirmed and disclosed a significant number of safety-significant problems (which I
even the company concedes are safery-significant and need to be fixed), and that but for what CASR has been doing and is doing, this plant might have gotten an operating license with those problems still in place, perhaps with disasterous results. The utility has much to be grateful for, despite all the anger they ma.y have as a result of the fact that CASE has been fighting 19
l to force them to do it right. The reality is that the ultimate beneficiaries of our conduct have been (and continue to be) the utility itself, as well as the public health and safety.
l CASE is not going to give up; we are not going to go away. If Applicants succeed in outspending us (and there's no doubt that they can) and succeed ir. making it impossible for CASE financially to obtain the copies we need, we will go to the utility's offices or the plantsite and make handwritten copies if necessary. Certainly this is an extremely 1
inefficient and time consuming method of proceeding, and certainly it will end up delaying the proceedings considerably, but if it is the only way to keep Applicants from preventing our exercising our due process rights because they can outspend us, we will do it.
CASE believes that, under the circumstances of these proceedings, the fairest and most efficient way to proceed would be for Applicants to provide CASE, at Applicants' expense, with three copies of all discovery documents which are relevant to these proceedings. If Applicants do not voluntarily agree to this procedure, there is one alternative which we believe will assure efficiency as well as a complete record in these proceedings, and we ask that the Board order that copies of all discovery documents which are relevant to these proceedings be served by Applicants upon the entire l Service List.
I Respectfully submitted, J A E &J
~'.)
s Juanita Ellis, President ASE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 l
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DIFFICULTIES EXPERIENCED BY CASE'S INTERN IN REVIEWING RESULTS REPORT DOCUMENTS The following information is based on the personal experiences of Adam Palmer, a legal intern with Trial Lawyers for Puolic Justice assigned to review documents produced as part of i l
TUEC's promised disclosure of documents in conjunction with the I
release of results reports. Significantly, the documents are not l l
being released in compliance with the representations made by TutC's counsel. In particular, all the documents are not being made available at one location in Dallas; all documents relevant to the results reports are not being produced; and all documents are not being produced at one central file even at the plant site.
In addition, TUEC does not place all the documents at any one location in one room and allow CASE to review them during whatever hours CASE representatives have available. Rather, 4
CASE, without seeing all the documents, must decide which ones it wisnes to see and wait for them to be brought to the room. This process is not only cumbersome and time-consuming but inhibits CASB's ability to review all the documents and look for linkages in documents, allows TUEC to effectively withhold documents from each on-site request by interpreting the request more narrowly than intended,* and forces CASE to disclose its search strategy What TUEC has done is, in effect, to deny the written request for production of results reports documents, force CASE to make an oral request for such documents in person in Dallas or Glen Rose, and then produce docuuments in response to that oral request in any manner it sees fit without the possibility of a review or opportunity to compel more complete responses.
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to TUEC. This surely represents a gross abuse of the discovery process and is designed to frustrate full disclosure of '
information.
The net result of this process is that discovery slows to a snail's pace. CASE has already made clear on the record that TUEC's delay in producing documents should not be allowed to prejudice CASE by cutting down document review time. This latest tactic of TUEC to frustrate efficient review of documents being produced must also be f actored into the calculation of how long CASE will be allowed to review documents.
Statement of Adam Palmer I have experienced the following problems during the discovery process that have interfered with the effectiveness of this proceeding.
- 1. Not all the documents released relating to a specific ISAP have been produced for inspection in Dallas. During my review of otner documents requested by me at Comanche Peak and during my review of documents at the Public Document Room of the j NRC in Washington, D.C., I have found numerous deficiency reports
[
relating to these ISAPs that were not produced in Dallas and some l
that were not produced in Dallas or Glen Rose but were found in the NRC files. My expectation from Mr. Gad's representations at I the November 12, 1965, prehearing conference was that all
( documents relevant to a particular ISAP would be identified by TUEC and produced as a group in Dallas. Tr. 24,332.
2 Documents are located in Dallas and at Comanche Peak in 22 l ..
l Glen Rose, one and a half hours away, not all in Dallas as represented by Mr. Gad at the November 12, 1985, prehearing conference. Tr. 24,232.
- 3. The documents at tne plant site are not located in one central file room but distributed throughout the site, also contrary to Mr. Gad's representation. Letter, March 26, 1986.
During my recent trip to Comanche Peak, I was escorted to several areas located throughout the plant that housed deficiency reports. I first went to an area where the main document vault was located, then documents had to be brought f rom the IRV vault located somewhere else on site. Next, I went to several mobile trailer buildings that stored deficiency reports to review there.
Finally, I went to the operations building to review documents relating to the two newest ISAPs released, I.A.3. and I. A.4.
- 4. The document vaults were only open from 6:30 am to 3:30 pm, Monday through Friday. No arrangements were made to change the rime to more reasonable hours or to make the materials available for inspection on nights or weekends. TUEC insisted on providing me with a watchdog while I reviewed the documents. ;
Unfortunately, une of the TUEC employees had to drive from Dallas (one and a half hours away) and the other from Fort Worth (one hour away) to meet me at Comanche Peak. This would have required them to get up extremely early in order to meet me at Comanche Peak at 6:30 am. CASE felt that this would be an unreasonable request of employees whose good will was essential to CASE's access to documents, and therefore we lost valuable work time through an effort to accommodate TUEC's employees.
23
- 5. A lot of time was wasted waiting for documents to be brought back and f orth f rom the vault room to my location in the plant. Instead of giving me free reign to look through the documents uninhibited, I was brought a small pile of documents at a time, ano atter inspection they were returned and another pile was brought. This process was slow and resulted in less than maximum reviewing capacity. It also made it dif ficult to re-examine documents that I had previously reviewed.
- 6. I sought and finally received the sorting list for TUSC's computerized docuument list but was told the computer access to these documents (by which they could be searched for certain relevant characteristics) would not be available until a schedule of payments for use of the computer could be arranged.
None has yet been proposed. In the meantime, there exist "524 4-drawer file cabinets plus approximately 13 4-foot 3-shelf bookshelves plus approximately 454 LF of other shelves" (letter of May 22,1986) of documents that we must search by hand but only in prerequested groups.
24
gno ccmn6fGNULH4 UNITED STATES OF AMERICA OC g
NUCLEAR REGULATORY COMMISSION (('ED BEFORE THE ATOMIC SAFETY AND LICENSING BOARD $ g g In the Matter of )
kh[f* tn ;
TEXAS UTILITIES GENERATING ) N COMPANY, et al. ) Docket Nos. 50-445-OL
) and 50-446-OL (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 PROGRESS REPORT (I) and attachment have been sent to the persons listed below this lith day of August 1986 by: Express mail where indicated by *; Hand-delivery where indicated by **; and First Class Mail unless otherwise indicated.
Administrative Judge Peter B. Bloch U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Kenneth A. McCollom ,
! 1107 West Knapp l Stillwater, Oklahoma 74075 l
Dr. Walter H. Jordan 831 W. Outer Drive Oak Ridge, Tennessee 37830 Elizabeth B. Johnson Oak Ridge National Laboratory P.O. Box X, Building 3500 Oak Ridge, TN 37830 t
Ellen Ginsberg, Esq.
U.S. Nuclear Regulatory Commission Washington, D.C. 205S5 i
1 1
Robert A. Wooldridge, Esquire Worsham, Forsythe, Sampels
& Wooldridge 2001 Bryan Tower, Suite 3200 Dallas, Texas 75201 Nicholas Reynolds, Esquire Bishop, Liberman, Cook, Purcell & Reynolds 1200 17th Street, N.W.
Washington, D.C. 20036 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 l Dallas, Texas 75201 l Mr. Roy P. Lessy, Jr.
Morgan, Lewis & Bockius 1800 M Street, N.W.
Washington, D.C. 20036 l
l Mr. Thomas G. Dignan, Jr.
Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110
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