ML20214Q650
| ML20214Q650 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/28/1986 |
| From: | Garde B Citizens Association for Sound Energy, TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1728 OL, NUDOCS 8612050226 | |
| Download: ML20214Q650 (40) | |
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USNPC UNITED STATES NUCLEAH REGULATORY COMMISSION 1*8610EC -4 R2 :11 -
Before the Atomic Safety and Licansina Board 6FFil10' SEV t IAWY 00CKlithS A ELPV!CI In the matter of
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BRANCu TEXAS UTILITIES GENERATING CO.,
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Dkt No. SD-445/6-OL et.al.
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(Comanche Peak. Steam Electric ~
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Station, U ni i. 1 and 2)
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MOTION TO COMPEL ANSWERS TO SETS 3-7' On Septen.ter 15, i6, and 17, 1986, the Citizen's Association-for Sound Energy (CASE) filed discovery requests on the issue of the adequacy of the Comanche Peak Response Team (CPRT) Program Plan. (Set 3 on Septenber 15; Sets 4 and.S on September 16; Sets 4 and 5, and Sets 6 and 7 on September-17,;1986.)
On November 7, 1986, Applicant Tenas Utilities Applicant-):
filed answers tc the third through seventh set'of CASE's interrogatories. s Applicants' Answers To CASE-CPRT Program Plan Interrogaturien, Sct 3, 4
5, 6 and 7, November 7,'1986.)
The Applicant failed to respond, or provided incomplete and evasive respcases to.uany of-the interrogatories. As with Sets 1 and 2-the Applicant u.a d e no attempt.to contact CASE to clarify s
any of the interrogatories that they may have found-obj e c t io nabi c, or to clarify any' questions which the Applicants f ound arabiguous or confusing.1 8612050226 861128
j' PDR ADOCK 05000445 G
PDR.
1 CASE files this notion To Compel beyond the ten day' time period-with the cons.ensus'of the Applicant and permissi'on of-the.Daard.
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CASE files this motion to compel pursuant to 10 CFR 2.740(f).
I.
BACKGROUND I
de3cr1 bed in CASE's October 15, 1986 Motion To Compel on As Sets 1 and 2 CASE believes that it la critical the Board review the purpose of the issue of the adequacy of the CPRT, the history of dicovery disputes since January 198S, and the posture of this case in general. CASE set out that information and argument in our previous motion on this s ubj e c t, and incorporates by reference pages 2 through 10 of that brief. Only in the context of full consider ation of this discovery and the background of this issue is it appropriate to scrutinine intervenors requests and the responses of Applicant to determine if an order to compel is, as CASE bulloves, necessary.
based on the inadequacies of the answers to Sets 1 and 2 CisGE suspectou that the Applicant had no intention of providing tne type of detailed inf ormation necessary to insure that CASE huu an accurate and comple; e understanding of the CPRT to enable 11 to write defin.tive motion for summary j udgement.
The a
suspicions wer-c o n f i ra.e d by the responses to Sets 3 through 7, and the November c,
1966 reply to our previous motion to compel, tJe r e a :. s e r t our request to the Board to exercise its authority tc control this proceeding by insisting that Applicants cou. ply with the spirit and letter of the Boards' ruling and not permit them to continue to engage in the debiltiting practice of legal manueverings regarding these requests.
As with dets 1 and 2, CAGE believes that the answer provided
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3 by Applicant to virtually every, question of Sets 3 through 7 is unacceptable in that it is incomplete, evasive, circuitous or nonsensical.
However, as with Sets 1 and 2, we have decided to move to compel respcuses on only those issues which we believe the Board must rule and pursue the remaining information in the course of depositions.
Case trusts that the Board will excerise its authority under 10 CFR 2.707 to exclude information later provided by Applicant wh i ct. was not provided in response to our interrogatories now.
If the Board lu not prepared to enclade future information which should have been provided now we seek as an order from this Board either compelling production or establishing depositions, at Applicants expense, in lieu of the written interrogatories, since apparently that is L ti e only method by which CASE can get the Information 11 b e el. s.
II. SUrtMAR V OF DISC (WERY DISPUTES JOINED IN SETS 3 - 7 (1)
Applicants failure to follow the lawful and useful i r.s t r u c t i o ns laid out in CASE's discovery requests for the purpose of ascertmining detailed information and an accurate understanding of the CPRT.
(2)
Applicants refusal to fully answer questions which they claim are irrelevant, (i.e. beyond the scope) of the CPRT.and deal with implementation; including questions which probe the.
role of the CPSES proj ect in resolving CPHT issues, and identifying individuals with relevant information.
(3)
Applicants continued use of circular,-evasive and nonsensical answers which rely on the original statement or
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s t at erne nt s in the CPRT itself as the basis of the answer.
(4)
The Applicant's refusal to answer questions about the job responsibilities of individuals who work or worked for the CPRT proj ect when one of the generic flaws raised by CASE is the results of tne implementation of the CPRT by individuals who initially caused the problems (i.e.
independence'and incompetence issues.)
III.
THE: RELEVANT LAW OF DISCOVERY The Nuclear Regulatory Commission (NRC) Rules of Practice provide discovery of
...any mutter, not privileged, which is relevant to the uuaject n.atter in the proceeding, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons havinn knowled.u g sny discoverable matter. (Emphasis added) 1 In general, the discovery rules follow the Federtl Rules of Civil Procedure (FRCP). However, the Federal Rules and court accision interpreting those rules are not authoritative, but' instead provice g u i de 11 rpt p and/or guidance for the interpretation of the NRC di covery rules.
Allied-General Nuclear Services, et.ul.,
(Earnwell Fuel Receiving and Storing Station), LBP-77-13, 5 NRC 489 (1977); Det roi t Edison Cg., et. al.,
(Enrico Fermi Atomic Power Plant, Unit 2) LBP-78-37, 8 NRC 575, 581 (1978).
As with the Federal Rules, discovery is liberally granted and construed to enable the parties to determine facts-and refine issues, and prepara adequately for more expeditious hearings.
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5 To.:a s Utilities Generatina Comraany, (Comanche Peak Steam Electric Station, Units i and 2), LSP-81-25, 14 NRC 241-243 (1981),
Pacifi c Gas and Electric Company, (Stanislaus-Nuclear Power P roj ect, Unit 1) LEP-78-20, 7 NRC 1038, 1040 (1978); see, Illinois Power Company, ( Clinton Power Station, Unit 1) LBP 61, 14 NRC 1735, 1742 (1981).
The scope of discovery permitted under the rules is very broad. The test is one of general relevance, and unless it is clear that the evidence sought can have no possible bearing on the issues the test will be. satisfied. Commonwealth Edison Co.,
(Zion Station Units i and 2), ALAB-185, 7 AEC 240 (1974); see also Allied-uanoral, supra, at 489.
Many of the a r g ur..e n t s and o bj e ct i o ns advanced by Applicant in this proceeding are Laced on subj ec t matter relevance.
Previous Boards have d e t e ririi ne d that subj e ct matte r - relevance is determined by an analysis of the issue involved. Fji&E, supra., at 1040.
As the board recently articulated, the issue currently before the tribunal lu the adequacy of CPHT.
For those interrogatories that are not adequately answered on the basis of subj ect matter relevance CASE has submitted a brief argument in support of its position that the sought after information is relevant and within the scope of permissible discovery.
r-Since the burden of establishing relevancy of'its propounded interrogatories is slight, CASES' arguments in supprt of its discovery requests are brief.
On the other hand, Applicants burden of establishing the basis for its requested protective
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6-order is great.
10 CFR Section 2.740 (c) provides that in order to obtain a protective order the requesting party must demonstrate that:
(1) The information in question is of a type customarily held in confidence by its originator, (2) There is a rational basis for having customarily held it in confidence.
(3) It has, in fact, been kept in c o n f i d e n r: c, and (4) It is not found in public sources.
Hansas Gas and El e c t r i'c Company (Wolf C r e e le Nuclear Generating Station, Unit 1) ALAB-327, 3 NHC 408 ( !?76).
Applicants have sought, without explanation, a protective order on all of the information not provided in response to various interrogatories.
( See the-last page of Applicants Answers to Sets 3 through 7).
There is no attempt by Applicant to meet the test.
A review of the ad'vanced obj e ct io ns make it clear that all of the obj ections are really subj ect mat ter o bj e c t io ns.
(The one exception is the non-testifying experts issue.) CACE has not, therefore included a legal argument in opposition to the request for the protective atder.
We expect that the Board will conduct an analysis of the information sought to determine'whether or not the information has general releivance, and, if so, to order disclosure or adjudicate an appropriate remedy.
As to the issue of the identification of personnel with information relevant to the GPRT issues, CASE draws the distinction between the i dentifi cation of individuals within the 1
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order is great.
10 CFR Section 2.740 (c) provides that in order to obtain a protective order the requesting party must demonstrate that:
(1) The information in question is of a type customarily held in confidence by its originator, (2) There is a rational basis _for having customarily held it in confidence.
(3) It has, in fact, been kept in confidence, and (4) It is not found in public sources.
Hansas Gas and Electric Company (Wolf Creek Nuclear Generating Station, Unit 1) ALAB-327, 3 NRC 408 ( 1976).
Applicants have sought, without e :: p l a na t i o n, a protective order on all of the information not provided in response to various interrogatories.
( See the last page of Applicants Answers to Sets 3 through 7).
There is no attempt by Applicant to meet the test.
A review of the ad'vanced obj e c t ions make it clear that all of the obj ections are really subj e ct matte r o bj e c t ions.
(The one exception is the non-testifying experts issue.) CASE has not, therefore included a legal argument in opposition to the request for the protective order.
We expect that the Board will conduct an analysis of the information sought to determine whether or not the information has general releivance, and, if so, to order disclosure or adjudicate an appropriate remedy.
As to the issue of the identification of personnel with information relevant to the QPRT issues, CASE draws the distinction between the identification of individuals within the U
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CPSES proj ect. who have relevant information, and those individuals connected in some way-to the CPRT that the Applicants refuse to disclose under their " expert theory."
As to the former CASE believs it is entitled to have full' disclosure based on the general relevancy test, as to the latter CASE belives it is entitled to the identities based on the arguments advance previously in its Motion To Compel Responses To November 11, 1985 Interroaatories, filed January 10, 1986.
Although tne Board did not rule on the issue because it concluded that it was not ripe for consideration it set out preliminary, non-binding views helpful to recite here:
We offer.our preliminary, non-binding view that we consider it to be a wild idea that the entire Comanche Peak Response Team (CPRT) is performing a consultative function and that all of its work could be shicided by privilege.
Most of the work being done by the CPRT appears to be intended to contribute to the assurance of adequate safety.
It is part of the OA/GC system of the plant.
There appears to be no more reason to uphold a privilege blanketing the CPRT than there would be to_ permit a pla,nt to have its entire GA/GC system be conducted by experts and to claim that their documents were not plant records and could not be discovered.
MEMORANDUM AND ORDER; MEMORANEUM ( CASE'S January 1986 Motions To Compel and Clarifv), February 5, 1986.
Accordingly, in light of the circumstances described above CASE respectfully requests that the Board issue an order compelling the Applicant to follow the instructions as written by CASE and produce all other information requested by CASE in this motion, or to order depositions at the Applicant's enpense to enable CASE to complete productive, valid discovery on the issue of the CPRT adequacy.
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8 IV. ARGUMENT A.
Applicants Failure To Follow Instructions CASE set forth instructions in CPRT Discovery Set 1 which were designed specifically to elicit precine and detailed information from Applicants about the CPRT. These instructions were incorporated into the remaining scLs.
Applicants have ignored those instructions, (Applicants' Answers, Set 3 through 7, Page 1), but provided no further specificity of what instructions were ignored and which ones were followed, and what was the basis for the o bj e c t i o n.
The only clue given in the Responses as to what obj ect ions may be based on was the statement that the instructions were ignored to the entent that they were deemed contrary to the Federal Rules of Civil Procedure.
CASE does not seek here to rebut the blunterings of Applicants November 6, 1986 Response to its October 15, 1986 Motion To Compel. To the entent a rebuttal is necessary we will argue the same at the Pre-Hearing Conference to be held on Sets 1 through 7.
However, we note here that it is not CASE's burden of advancing legal arguments to j ustify-obtaining the information we seek.
This is a discovery dispute.
Applicants have the burden of establishing that there is some legally permissible basis for their refusal to disclose information sought in discovery.
Normally, thir is done by claiming some type of 1cgally recognizable privilege.
However, encept for a very few situations in Sets 1 through 7 Applicants have turned the discovery aspect of this portion of the proceeding into a game.
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9 CASE refuses to-play and,.having left the door open for cooperation from the beginning of this discovery, seeks from the Board assistance in doing its work.
CASE does not know, based on the Response supplied by Applicants which instructions were ignored and which were followed, or what the basis of an obj e ct ion may be. As stated above, some light is shed on their position in their reply to CASES' first motion to compel.
However, e :: c e p t for denying the pcsture of discovery, their response does not address the equitities involved in this case, nor does it present any argument which would climinste CASE's overriding need for the information it seeks regardless of potentially valid obj e ctions.
Pursuant to the instructions of 10 C.F.R. 2.740(f), and for the convenience of the parties, CASE has repeated the instructions in their entirety below:
INSTRUCTIONS A.
This discovery request is deemed to be continuing, and any other additional information which is discov-ered and responsive to this request requires supplemen-tation to these answers up to and including the time of the hearing in this proceeding.
B.
All interrogatories should be answered on the basis of Applicants' knowledge or information and belief, in-cluding that of Applicants' representatives, agents and unless privileged and specifically alleged with re-spect to specifically-identified material and the basis for the claim attorneys.(sic)
The response should indicate when an answer is based upon information and belief.
C.
When an interrogatory has one or more subparts, the answer to each subpart should be set forth separately j
and completely.
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l D.
If Applicants believe that the answer to any inter-j
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10 rogatory is privileged, in whole or in part, or other-wise obj ects to any part of the interrogatory.
Appli-cants must state the reason (s) for each objection, and identify each person having knowledge of the factual basis, if any, on which the privilege or o bj e c t i o n is asserted and the precise scope of the claimed privilege o r obj e c tion.
E.
If an interrogatory could, at one time, have been answered by consulting documents that are no longer in existence, the Applicants must in r e s po ntli ng to the in-terrogatory:
(i) Identify what information was maintained in such documents; (ii) Identify all documents that contained such information; (iii) State the time period during which such documents were maintained; (iv) State the circumstances under which such documents ceased to exist; (v) Identify all persons having knowledge of the circumstances under which documents ceased to exist; and (vi) Identify all persons who have knowledge or had knowledge of the documents and their contents.
F.
If Applicants once had any document responsive to the request for production, but said document has been destroyed, lost, given or loaned to another or is otherwise unavailable for inspection, Applicants shall furnish:
(i) The name and address of all other persons who have or may have said document; (ii) A summary of the contents of said document; and (iii) The date and reason why the document was destroyed, lost, loaned, given or otherwise became unavailable.
CASE incorporates by reference its argument on pages 10 thru 12 of its October 13, 1986 Motion to Compel, and seeks a ruling on these instructions for this issue (i.E. CPRT adequacy) only.
D.
Applicant's Relevancy Obj ection as to Impicmentation CASE sought information in sets 3 through "I regarding the development of the CPRT, how the CPRT works, and who impicments i
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11 it. Applicants objected to many of the requests on the grounds of relevancy, however, answers were provided for most questions.
Unfortunately, most of the answers are so circumspect as to be useless to CASE. (This is not true for answers which, although brief, direct CASE to a particular procedure or checklist.)
It is not clear to CASE whether the answer ptevided was intended to be a complete answer notwithstanding the obj e ctio ns and ignoring the instructions, or whether the answer is a complete response in i
spite of the obj ections and failure to abide by the instructions.
The requests which CASE finds unacceptable and seet:s to compel a further response to are set forth below, followed by the Applicants' response, and a brief explanation of why the sought after information meets a test of general relevancy.
CPRT Discovery Set 3 NUMBERED INTERROGATORIES Interrogatory j:
Request: Identify by name, title, and organization the individuals who par t i c i pa te d in the decision to develop the Comanche Peak Response Team (CPRT)...(CASE's Se pt en.be r 15, 1986 CPRT Discpvery Set 3
(" Request"), page 3.)
Answer: Applicants obj ected on the grounds of relevancy, stating that the information was beyond the scope of the issuco in this proceeding. Nonetheless, Applicants annunred the question by stating that the decision was solely that o f tir. Spence and identified p.,
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- n. c... o w n t i.. desaileaLLne decision. (Applicant's r.o v ei,.t.e r /. I 'n.. Answers -Tu' CASE's.CPRT Program Plan j
interroguLurtes Let N o... o e 3
(" Answers"), page 2-3.)-
CASE Leitavt a L t., t Li.a s ;uiswer is only a partial response.
p The question called.or. 11 pei ons who ria r t i c i pat ed in the
. de c i s i o n. to nevelop setnspection program.
It seems unlikely u
that hr. Spente, actin.f andepet.dently, decided to' embark on a n.u j u r plan of action uch us the CPRT without consutling and i
advising peruunnel who w ce f an.i l i a r with the day-to-day cunutruction su.d uperaLio.i of the plant, as well as for the l u i.ut e of Lne (acility.
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1 ti...n.e, r : laentaij all nie e t i ng s, between July 1, 1984 j
and Octoi.er 19M, at which the response to the Se p t e n.Le i lb, NM, letter from the' Technical Review I
'suam (IHf) wa. ii i. c u a u e d.
is) 1or e,ic h nie e t i ng identified list all the p.rttctpants, wr. ether or not they are employees of
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- t. L h e r o w n a r t., TUEC, Drown and Root, or other site i
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- t. h.ieu e t i ng identified produce all
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4 do c s.a.u n L a, t,e e i ns tr uc tions ) in the possession uf, a t.y of Lne parLicipantc..(Hequest at 2) j
(.u.w e r. i.ppiti:.u..la uojected on the grounds of eelevano, s t.a i, 4 og thut Lbe information was beyond the.
i scope un Ll.e i ues in this proceeding,~and supplied an 1
unawer Lt.ating ti.s t the sub. ject was discussed at i
u.e e t i nu s of the UhT which minutes have been made-avail bl.
for inspection and copying by CASE.(Answer at 3.)
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Applicaista respi...ae deals only with the meetings of the
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i, Centur Review f e ani, not of TUEC management or other members of the Board of ba r ectue s, etc.
61nce the GRT wasn't even formed e
i until the una of the tsua. pertad specified in.the question it 1
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unlikely that t i. t ; answer could be complete.
Therefore CAGE ueeks a con piele answer to this question.
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a 2nterroqatory No. 4:
Roquest: Describe in detail the process (each step in the d e v e l o pnie r. t, recearch, writing, editing and finalizing) used to develop the CPRT program approach
( o bj e c t i ve s, scope, breath, nie t h o do l o gy, details, etc.)
taken in Rev.
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(Hequest at 2.)
Answer: Applicants objected on the grounds of relevancy, stating that the information was-beyond the scope of the issues in this proceeding. No answer was provided. (Answer at 4-5.)
CASE cannot imagine a question which would be more relevant to the issues now tm ute the Board than the historical d e v e l o paie nt ci the
.m rent plan - and of the' versions of the plan which were u t. e d to accomplish a great percentage of the now coniple ted wo r L.
C..L a serts that the information sought is relevant, witnin the acupe of the issues before the Board, and i.l.e r e f o r e well will.in the anibit of permissible discovery.
CASE 2eeks a ha.plete a n t.w e r to this question.
Interruyatory No.
5 R e q u e r. L : Was an) consideration given to the appropriatenest, or using then curront site GA/GC personnel (e.g.,
Tony Vega, Ron Tolson)'in the CPRT de v e l u pn.u n t procesu or the CPRT Plan itself?
(a)
If yec, what consideration was given and by whom.
(b)
If oc, why not?
An ;wer :The Appli cants obj ect to this interrogatory, on the ground thal Lhe reques ted i nformatic.n is not relevant to the adequacy of-the CPHT Program Plan, and therefore is beyound the scope of the discovery authori::ed by the Daard on August 18 and 19, 1986.(Answer at 2 )
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14 As with tiie presiuus interrogatory, Applicant provided no answer to thiu question.
CASE' believes that the information it seeks is reiesant und witnin the scope of permissible discovery and ueeks an order f r un. L t.e Dourd compelling a response.
Interro.latory th..
7:
Request:The CPRT utates that the scope of the charter was e::pande d to " include quality of construction and consideration GA/GC issues" raised by additional sources.
For each cource listed identify the issues for review which were included beyond the original scope of tho CPRT from the sources listed belows (subpartu a-g o u.i t t e d, see Request at 4.)
Answer:The Applicantu obj ec ted to' this interrogatory.
As set furth an the program plan, development of a comprehensive liaL of issues raised by the External Sources is one of the CPRT Program Plan outputs.
As a consequence, thin interrogatory calls for information regarding the ia.plementation of the Program Plan and is beyond the scope of the discovery authorized by the Board on August 18 and 19, 1986.
Futher, the ApplicanLu obj e c t tu this interrogatory on the ground that it calls for information related to CPRT efforts that are still in process and not yet completed or published. Applicants also answered the questiont "Without waivin.; the f oregoing obj ection, but rather e::p r e s s l y relyin.; upon the same, one of the outputs of the conipleted CPHT program is expected to be a list of all e:t t e r nal source iusues addressed, the source of the issue and where 4L has been addressed.
Please also see
' Applicants' Reupunuo to Board Memorandum of 8/8/86 (Assistance to the 130 a r d ' filed 10/6/86."
(Answer at 20-21.)
Applicant's responau to this question is illogical.
Its answer is hacically that the information sought will be available dt some time in the fulure, or that the information is still "in 4
process." However, the CPRT plan states that the action we inquire about has already been accomplished and that the productior, of t h c.
i i., t was the basis of the expansion of the
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.g3 original charter ui the Cint T.
l CASE does not ueeb cua.p uhensive end product here, it seeks the u
i n f o r a.a t i o n t h a t was the Lauin of the statement in the CPRT Revision 3.
li Applitaat has a more complete list later it can be supplied at that t m. e.
However, the list was complete enough i
to be the ba s t., for.. i aatricant changes in the CPRT and should be raa d e available to CIME.
I nt e r r a.ia i.o r y No. V:
Request:The CPRT states that "the charter was expanded to include a n.andate of assuring TUEC management of the safety of the plant regardless of'the extent.to which issues might have Leon raised by unternal sources."
l ta)
In regards
- i. o that statement describe what i
individuals or group in "TUEC Management" must have the
..ucunce of the plant's safety.
(b)
For each p e i t. o i, identified in response to question (a) include that individual's own description of what is tonuidered proof that the plant is safe.
(t)
For each peruui. Identified in response to (a) above identtiy any u.eetings or presentations in 4
l which Lhe C.U n T program plan was explained to them or any way in whith the individual had input into the CPlft H t, g ao plan.(Request at'5.)
i nower :
"The CP:Cl P ogram Plan calls for the development of i n c o r n.a t i o n, which the Applicants may in i
the future orter into evidence in this proceeding, for the pur poco of al.ablishing the requisite reasonable t
ausurance regarding the CPSES facility.
Any additional function Lu be acton.plished by the same program is not relevant to theue proceedings, and any additional function is not relevant to the adequacy of the Program 4
Plan to establi:,h that reasonable assurance.
The Applicants theref ore object to this interrogatory, on the ground that the requested'information is not relevant to the adequacy of the CPRT Program Plan, and
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therefore ia beyond the scope of the discovery authorized by the Loard on August 18 and 19 1986."
3 Applicantt, also provided a partial response which' identified that two euccatives are waiting for the c o n.p l e t i o n of t r. e CPHT and all corrective actions i
l 16 derived t ii e r e i r oi..
that are needed for operation.(Reapon e at 22-23.)
Tnis respense, wl.2ch CASE considers inadequate, raises the question for the Doard of whether the CPRT is a 1itigation tool
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crafted principally by lawyers and their enperts in the NRC licensing proceus ar.d therefore i mir.u n e from-discovery, or a i
program written by engineers and quality managers for the purpose of determining the uaiety of the plant.
In order to determine what the CPRT actually is CASE is
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' entitled to probe the baclu of this obj ection.
CASE asserts.that
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to the e:: t e nt that the CPRT is the program upon which management relies to make the rcauonable assurance determinati6n the CPRT and all relaLud facci. are relevant to the issues now before the board.
To L tie extent that the Applicant claims the CPRT has a dual purpoue or 1; mon.ething else,(i.e., a litigation tool, Applicants Lear the burden of demonstrating that it is beyond the reach of discovery.
It ic uncleas ii Llie answer to this question is supposed to 1
be coaplete, or wi.e ci.e r the answer provided is' modified or abbreviated in some way by the objections asserted or the i ns t r uc tions ignored, fu the e:: t e nt that the answer is not complete CASE seeks a full answer.
i 4
I nt e r ro.i st o ry No.
10:
i Reauest: Identify all CPSES project personnel involved i
in the CPRT, by category of work responsibility, and when that responsibility started, ended, and or was changed, ren.uved nr replaced: (Example omitted).This question includes site GC Inspectors and GA personnel.
l (Request at S) h
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..ns we r; "i o the entent that this interrogatory calls for information about the ident*ity of persons who have in the past, are presently, or may in the future be engaged in providing support to the CPRT, such-inforn.ation will he contained in the Working Files for each action plai.t, but, except for those Action Plans for which Resultu Reports have been published, is presently in pr ocesu.
In addition, the information called for has no relevanca to the adequacy of the CPRT Program Plan, as written, to accci..plish such of its objectives as might be relevant to these proceddings.
The Applicants therf ore obj ect to this interrugiatory, un the ground tha Lthe requested information zu not relevant to the adequacy opf the CPRT Prograit. Plan, and therefore is beyond the scope of discovery authorized by the Board on August 18 and 19, 1986."App 11cantu aluu answered the question: " Without waiving the f oregoing obj ection, but rather expressly relying upon the sca.e, information regarding principal personnel involved in tghe CPRT from time to time is contained in prior and current re. visions of the Program Plan, and itu cuoutituent parts, all of which are contained in Lt.e CPRT Central Files that have been previously made available to CASE." (Response at 24.)
First, CeiSE obj e c t s to the characterization that the Working Files or Lhe Cente.1 File of the CPRT are the type of t, t raight f orwar d coa.pr ehe nuive documentation which will, upon roauonable review, erovide the information CASE seeks through this intertugatory.
For enample,only through the interrogatories which CASE
'1 led afLer c on.p l e t e i ng its preliminary analysis of 1 Q.P 1.a.4 did Caul discover for the first tier.e that the
" engineer" referted to in the documents, and-that the " document reviewer" referred Lu to the documents was really Mr. Vogelsang.
(See, Applicants Reuponues to interrogatories on ISAP I.a.4, June 1Yd6, page Lu
.)
Mr Vogelsang, as the parties and the Board is well aware hau been involved in the electrical systems of the plant virtually since the beginning of.
i
~18
~~
constiuctioi..
(This wou confarn4cd during a review of the early
~~
NCR's accornplished by member s of CASE several months ago at the.
site, and it tu not in tonifi' cant that Mr. Vogelsang has been charged as being a harassar of individuals who raised concerns by at least one os the witnesses in Docket 2.)
These facts ~are listed only to dispel the notion that CASE could discover by even diligent review of the documents made available, the information sought by this question.
However, even if the information were available by extensive enpenditures of tirae going through masive amounts of documents rnade available by the Applicant in various locations across the count y, and organized in response to various discovery probes, it iu utill n.o r e convenient,. and therefore ultimately more praiLical s' o r i.p p l i t. n t, to determine what CPSES project peruonnel have done and are doing in connection with the CPRT.
If Appiacuntu are not willing to answer this inquiry, and the Daard finds that it is a relevant and permissible question, we request that the bo wd permit CASE to take depositions, at Applicants enpense, o t' all pr oj ect personnel involved in any way with the CPHT. (6ach depourtions were not previously noticed based on the a.sumptaon that this interrogatory would be answered.)
I nt e r r oing t o r y No.
11:
Reauest: Identify the reason or reasons which the CPRT
~
program changed f t om "a proj ect ef f ort" to a "primarily
~
third party effort." (Request at 6.)
Interroontorv [jo. Ji',:
G
_._7-q iv k e il u e s t : Ider.lify when the CPRT program changed from "a project efrorL" to a " prima'rily third party effort."
(a)
Identliy what work was. completed or' partially con.pl e t ed when the CPRT was primarily,a CPSES proj ect.
(b)
For w o r t, partially completed identify the per centage completed. (Request at 6.)
Answer: both of these interrogatories were o bj e c t e d to on the grounds of relevancy and also briefly answered.
(Answer at 29)
If the anuweis provided are con.pleta-notwithstanding the obj e c tions CliUE hu a uu quarrel with the response.
However, if the answers are lan; Led by the Applicants ignoring the instructionu and using their understan' ding of the issues in the proceeding then CASE inovea to conipel complete answers to these interrogato ieu.
't h e q u e s t t e n t, seek W. a le rn the historical development of the CPRT fron. ap 0;ect d i r e c t e('. allegation review program to an essentially twLal rein.pection program.
Such inquiry seeks relevant i n f o i aist i, n, and is therefore permissible.
I nta r r aq..to ry n...
1 c, :
R e.a u tn. L : E:; p l u a n, by u; ample and definition, when or under whol c i r c us..o Lance s it would not be possible to "inve tigate una determine" the root cause of found uarely utunificant deficiencies. (Request at 7.)
Answer hpplicants objected to this question "to the c::t e nt that it calls for the disclosure of information that the CPHT su presently in the process of formulating, on the grounds that discovery regarding the in process formulation of opinions by expert is not proper d i t. c o v e r y. " ( H e t. po ns e at 29.)
They also answer the question by stating that "the bHI had no particular scenario in mind. Investigation will always be pousable.
The Program Plan recognizes, however, that a detern.ination of root cause may not be c.
l
EO possible in all casuu." ( Response atR30.)
This is a non-answer.
The question is based on a statement t re the program plan on page 2 of Appendix B.
The o bj e c t i o n j
raised by Applicant is apparently either some type of trial preparation privilege (i.e.,
experts) or an obj ection based on oncessive burden.
It is similar to that Applicants raised in November, 19eb, regarding the production deficiency paper.
At
)
that time the Duard properly balanced the needs of CASE'for diucovery against the burden on Applicant of production.
Apparently there is no further development of'the o bj e c t i o n because there is au.nuwe-provided.
Aowever, the answer only repeatu, with a ulight clarification, the statement from the program plan which CASE sought to understand the basis of through 1
ita questior.
The mi.swer states that the " Program Plan recogaires, however, that a determination of root causes may not Le passible in all cases." (Response at 30)
Obviculty the Program Plan, an inanin ate object created by a group of individuals as not capable of recognizing anything.
The-
.. answer mest c.eun that some individuals who wrote'the statement Lulieved that there were some set of circumstances in which it would be impossible to determine a root cause for a problem at i
the site.
CASE' seeks to determine from-the people who wrote the statement, not by lawyers at oral argument, what are the circumstances they had in it.ind when it would not be possible to determine thu root cause of found safety-significant deficiencies.
i
.._ n-21 IJe i t h e Lhe obj ec tion nor.the answer. resolve the outstanding-question.
3 I nt e r r o.ti t o ry t h,. 31:
h i
+
x, f< e.ine.. L : Hav e u ny situationu4 arisen which made~ i t appropriate to revine the conduct ofcthe CPRT as identified on page 4 'l s
1 y
,w (u)
If the an wei to the above question'is yes, identify all the situation's-which have arisen ~and what changes rer.ulted in the CPRT.
(b)
If the a n s. w u r is yes, id utify all documents which describe or enplain+each situation and/or which 3
were generaLed or used in making the decision.
(Request at 39 and 40)
'N, s
A nt.we r : Applicanct, oujected to,this question on the groundt. t h.:. L il calls for iniplorr.e ntation inf ormation, and ts therefose beyond the ccope of pefmissible discovery.,llowe ep r, Applicants also answer this question L/ discloui.ig that it is about to issue Revision 4 of the prugeam plan.-(Answer at 40.)
CASE respectfully requeutt, that the Board, inquire t r..n.e d i a t e l y ii.t o the ut.atuu ud' Revision 4, and whether the changes to L i. e CPRT w il, in fact', make' moot all of the current dit.cuvery and unalyLital wo r k do ne' to d.ite by CASE.
It should go wiLoout argument.that.the disclosure that there is to be yet another revicion of the CPRT is exactly the type of inf ormation which C iUL would have' expet.ted to be apprised.of in the p r o g r e s t, reporLL and/or through the rugulatory' process.
Instead, all that CnULE 1. naws is the information buried.on page
.I forty of this document.
if Revit. ion 4 deal euclusively with design issues, and the s
only changen which will be included in Revision 4 are the design
~
w 2d review s c o' p e e r, yu n a t o n issues by Stone and Webster, then our concern is s ue..w wl u l lessened.
However, based on the response provided it is uncleaa what the new revision will address.
Shuuld Revision 4 include significant changes to the CPRT CASE must have aiaple time to review it in order to detertmine if t
the changes andresu iLs-conterus about the inadequacy of the program plan such as Lo' ne cessitate further discovery or elimiraate issues.
Interrautory No. 49:
Roque. i :ldenti t'y forms or documents or types of documents on which " initial root cause hypotheses" are retarded. (Hequest at 13.)
Antwer: If referring to preliminary assessments made prior Lu the pubiication of the Action Plan, to the e :: t e n t made.uth assessments appear in the action Plan.
If referring to prelin.inary assesment amde during implen.entatian of the Action Plan, no specific form has been preuectibeu by the SRT for the " recording" of
" initial ruot cause hypotheses." On whatever form, any such records shoulu be contained in the Working File for the Action Plan in question. (Answer at 49-50.)
CnGE n. oves La i. u a. p e l a more detailed response to this question.
Iloweve r, tu trsure that Applicants understood the quenLion we clar if y it here by say of a more detailed e ;; p l u ria t i o n.
it-afoer reviewing ti. i s clarification Applicants do submit our explanation as i.o l s u p p l e nit. n t.
L h t :. respuose we argument in support of uur motion on this interrogatory.
CAUL sechs to luarn the process by which' Applicants, through the development of the CpHT, reached certain hypothesis or assumptions in an eitort to determine if'we disagree with those assumptions; and if we do, to challenge those assumptions or a particulir h/potliewiu in un effort to present our case on the L
Zi l o u d e.l u a c i e., ui Lhe Ui90.
Our question L u.a.e u e o... a
- t. cries of our own assumptions on how Loe Cs)HT wou attually developed and how businesses in general pr oceed on conteactu ui Lots importance and the magnitude of this project. We have i r.c l u d e d our own at.sumptions and believes which led u.
Lo f u r.n u l a t s
't. i t queution below.
Perhaps by reviewing these A p p i t c a r. L t., and/ur che 1:o a r d, can better understand the i n f o rit.a t i o r. sought, tr i r t. t, we are upcrating on the assumption that prior to the Appittant t ona..i L L i ng atuelf to a niul t arut ilion dollar program of reanupection und r ewo r t,
- 11. elicited i n'f o rniat ion and pro posal s f r u...
nun.c r o uw eaperta and potential subcontrators.
We believe thau in part wecauue i e :.u s Utilities it a company regulated by state laws in the pr ude ncy of i l t, e:: pe ndi t u r e s.
Further, we a u c uine that in order ior these individuals or corporations to n.al: e educated bidu und/or t.ubstantive proposals that the Applicant pr ov ided ce r tai n inform;ation in the form of data, interviews,
.a i t a visit, etc.to the prospective entities.
We further ut.auuse that tho e pe r t.o nne l or organizations responded to t h t.
request Lj p r o v i d t o.; b l il t, and/or substantive reviews of the projected wort. needed to a c c onip l i s h the tasks to the Applicant.
Finally, we aluu u u u ua.e that these reviews and or summaries contained i nf o rnia t i o n, au well a t.
opinions, about the functioning of/or p r o b l eniu at the Lonanche Peak site.
Since C/WL knows froa other inquiries that it is the position of the uppli : ants that these potential contractors had no obligations under 10 CFR Part 21 or SO.SS(e) to provide direct
. a. m A.
24 notification to the IJitC o f adentified deficiencies no matter how serious, we alue asuume that someune or some group of individuals worhing for Applicants reviewed the information submitted by the prospective contracturu for deficiencies, and/or reportable i t eri.s, or useful i nf o rnia L'i u n i n the development of its reinspection prograi..
CASE believs that it is reasonable to assume that at the conclusion ur the above deucribed proces a decision was made, choosing one prospective subcontractor over the others for some legitimate bus t rie n s purpose (i.e.,
cost, experience, reputation, etc.)
CASE has independent knowledge of the process we described above being used in the selection of one contractor.
- And, although the cuatractu. we are aware of is not directly connected to the icuueu of thm CPuT adequacy, the process described above was used during the uame L ii.ie period relevant to the issues now under co nu idu r ati o n.
The i n f o rs..a l l o n w u Leek here, the development of the initial runt cou-e liy po t h e u i u, is of sufficient importance that our requent to discover wnat insiruments (i.e.,
forms, documents, memou, etc.) these inattai hypothesis or opinions-or assumptions, whether f r oa. site percunnel or rejected prospective contractors, were recorded un, to enable a futher probe if relevant.
1 If Applicants unuwer is that the initial work was were not wr i t te n down o n uni u.i r.d, und all the initial work was only done orally; than we seek to discover, through Interrogatory 50, who pa.ticipated in the;c initial discuations.
. _. ~ _ _ _ _
25 i
ihe r e <., p u n c e given by Applicants that any recordt. "should i
Le" contained i n the wo. i,i ng fiiu for the action plan.is not an adequate answes.
4 I
(CASE has revie-ed the working files of altnost all of the I Ci'.P L eleased up to T. h u filing of the interrogatories and no such infurn.ation was contained in any of the working files, e:: c e p t one.
In that case, an electrical ISAP, there was a stated a.; s ur.ipt i o n by ER C port.unnel which was contained in the working (iles that uet furth the per imeters of the issue it would pursue on cer tain defi ned asuuniptions.
Unfortunately, that b _.. e d i
document is nut available to the CASE's counsel at the tirne of the pr oduction of tht;. nution.
A more conipl e t e reference, and/or i
- i. o py of the a c c un.e ri t, will be supplied under separate cover ne: t week f i u.i. - t he LL.:. i ng t o n o f f i c e. )
I n t. o r r o o a t. o r y no. 50:
Request: What individual or groups of individuals are responsible for u.aking the initial root cause hypothesis on e ch ICAP7 Answer: The Review Team Leader is responsible for the accon.plicho.unt of all the tasks contained in as Action Plan.
The Review Teun. Leader has the discretion to j
delegate taul:s to others but retains the utimate responsibiilly for the performance.
1 1
T r.t e r r o.
tury na. SC:
Reque.ta Identtiy the person or persons responsible for pe r f u rnii ng esi.h evaluation of pote'ntial generic implication au 'a result of'a root cause determination.
H o <: p o n c e : Please ee our-response to Interroga' tory No.
50,
- t. u r. r a.
i r% r the reasons discussed above CASE finds that this answer y
.,m-
.., _.._,., - ~.. - -
-~
26 is it. adequate. The e r u b l e n.> at t h,e plant e::isted bef ore there were RTL's, r.h e shape of the CPHT-including the RTL concept followed some decisions regarding initial root cause hypothesis, and the first HTLs were in CASES view part of the problem.
The answer provided just doesn't recognize the reality of the history
^
of the CPRT.
14e tr ust that the clarification above will assist the Applicunt in providing a more complete response.
If no response is forthcoming CASE moves to compel a response to these quublions in order to determine how the critical initial hypulleuiu were made and by who.
i Interruqarary No. S1:
R t.i u e s t ; 'i o wt.a t e :4 4. e n t, if any, will root cause determinationc be reacteed for specific deviations which do not h e c cine an adverse trend. (Request at 14.)
Answer: Tne answei to this question is contained in Prograra Plan, Appe ndi:. E.
(Response at 50.)
This answer is non-responive to the question.
CASE has read Appendia E.
f t.e words cuntained in Appendix E do not comport with the c:: pl a na t i o nu given by Applicants counsel and other regarding whici. dtviat..o.u get runt cause determinations and which do not.
We udel seere an e::planation 52 d member d the CPRT at which e::pl in now a decision will be reached as to the consideration of generic implications from specific deviations which do not be corrie an adve r se trend.
CPRT Diceovery Set.4
)
1 NUMEFRED I!JTERROGAT OR I FS
- l i
l
~e-y y
n
--,y
--s,ym,--
W
27 i nt e r r o.w t.n cy n,11 Ji'f flequest: Describe in detail the process by which the two collective evaluations will be merged to form the summary report un the OOC. (Request at 7.)
i i
Answer: Thure is nu pr o cess."
The task described is analyticul. (Hesponse at 20.)
The unuwer pruvided by Applicants is, obviously, inadequate.
Tu Le sure C.'itiu as s ui. ed that the ultimate task of evaluating and ccmbining the two collecti'e actions reports would be analytical.
However, CAtid is entitled to determine what are the elements of the analysis.
For enample, there must be some criteria already in place which will provide a framework to reach certain preli.ainary conclusiona about t.h e two collective evaluation reports.
And,.just aa EHC en. ployed certain systematic steps in reaching conclusions
-c Dyron and Draidwood, CASE assumes that similar criteria and uf a tenis are going to be employed here.
We s e c t.
to discover what those are for Coenancho Peak.
The anawer pruvideu is unacceptably vague and therefore non-a responsive. C e rJc. seets to compel complete. answer to this' a
interragatory.
i:PHT Di s covery Set 5 NurmFRCD INTErli40t'.A th i I: S I n t e r r o.1,i t o r y N a. 26:
Requent:Enplain in precisie detail (see instructions) what would be a substantive revision of the program as used on page 4 of Appendin E in evaluating-the inadequacy of a OA/GC-program element.
Interroqatory rJ a. 27:
Request: Explain in precise detail (see instructions) what the t e rra "entensive evaluation" means as used on page 4 or' Appendia E.
J 2d Interroqatory (Ja. P6:
R e.iue s t : Ea plai n zu precise detail (see instructions) what a " set of related GA/QC deviations" is as used on page 5 Append 1;, C.
Answers: The Applicant answered each of the above numbered questions with the explanation that the
" quoted term" was not used with any specialized meaning.
C (4 S E s e e l; s to deternatne what the words used in the program plan mean to the peuple who wrote it and who must implement it.
Only with the understanding of the words and phrases which constitute the plan con CASE hope to prepare an-adequate and hel pf ul liu ti on for Sun. mary Judgement.
The words have a specialized meani ng to the person who wrote them, and therefore must be suppor ted by (ne entstente of some definable criteria for those who muut oper te under the CPRT terms. CASE. seeks only that level of undesutanding.
(if our ignoru.he seems great CASE offers a sincere apology to the Board and Lt.t parties. However, our task is to reach an understanding of a very cumplicated, iterative, technical and analytital pr ag rau..
Our interr ogatories were designed to elicit i nf o rniat i o n whi c h woul d shed light on this process. Complete responses and ieferenceu to data or procedures will give us that information and produte a smooth and focused hearing, while 1
bypertechnical legal arguments, and pej orative remarks will only delay the process.)
If the answer is the sarac af ter a reconsideration, CASE seeks to con pel t h c-nume(s) of the individual (s) who prepared the Appendix of the CPRT which employ the terms in order to notice
~-_a
29 their d pcuit.anu
.e acce..uary.
CPHf Discovery Set 6 NUHii.7Hl'l) li1 TERR OGa f Gh iirii i nt e r r o.,;. t o r y No. P7:
Request: Identify all persons who have been or are retained au "e s: p e r t u within a particular technical discipline, by area of expertise.
a.
1 ur each per son listed under a technical discipline, provide a copy of the person's resume.
L.
For ea tl. person listed under the specific technical d:acipline, describe the basis of the dettuion to retain that person.
c.
For each person listed under the specific technical daccipline, identify what involvement he/she had in the development of the ISAPs/DSAPs for each revtuion.
d.
For each person listed, identify what i nvu l s ea.e n t 1.e/she had in the review of the results reports. (Request at 5.)
rin w o: : Applicants o bj e c t e d to this interrogatory o n.
the grounds that "the information called for...is not relevant to Lhe issue of the adequacy of the P r o g r:an Plan una iu therefore beyond the scope of the discovesy o u t b u i..: e d by the Board."
(.pplicanLa further ubjected to the interrogatory un Lne ground Li.m L "1L pertains to experts retained in anticipation ui litigation who have not been designated to t e t. t i f y, and Liie r e f o r e is improper." (citations omittedi Aftci noting their obj ections Applicants answereu the qumutionc by stating that~a partial list of "e::per tu" haa been usade available in.the Program Plan itself.
.h La Lt.e (tr.c aLJection, CASE believes that it is obvinuuly acicvant u.de n any Lest, to determine who the experts are whici, are proviatou advice which establishes the validity and credibility of the C Pit t.
As to the second o bj e c t i o n, the " experts" obj ection, CASE seeks a review of L t. i t.
tusue by the Daard. We have already u
Su advanced the oruus..e s. i in our January 10, 1986 Motion To Comrel
~
R u r.o rn.. " io Cr.:;F u le v em.i.o r IS, 196S, Interrnaatories.
We it.cor purate herein the a t gui..e n t a advanced in that brief, pages 2 through 15.
l a.e 1.;... w a :. never ruled on because the Board did not believe the issue wa' ripe. See, February 4,1986, Board Order, s u r. r a.
After a consideration of the arguments advanced therein CASE seeks e ruling on the obj ection advanced by Applicants.
interroontories h,. 39 and 40:
Request i s,. 39:
Identify the management person (s) of the Project wh.
are responsible for each of the items in the niatri.. o n pa.j e 10.
(a) D u t. ui..c i. t and information requests.
(L) Lupport.ervices requests.
(c) Identifaed aeviation and deficiencies (prepare NCR and review for ';O.SS(e) reportability).
(d) Correttise actions. (Request at 8.)
R...p ie. t r.o. 40: laentify all persons'of the proj ect who participate in or implement the proj ect's actions f or each of the following Atems on the matrix on page 10.
(a) through (d) (same as above)
Answer: Applica.6Ls o bj e ct ed to these interrogatories on the grounds that "the information called for, namely the identification cf upecific persons performing tasks
{
described in the program plan, is not relevant to the 1ssue of the a d e.q ua cy of.the Program Plan and is i-there/urt. Leyona the scope of discovery authori ed by the Board un August IS and 19, 1986." (Response-at 22) hpplicants_do not even offer a partial reponse to this questions and for the eat.ons articulated above CASE moves to c ou.p e l the identification of those individuals who participate in or implement the actione deliniated in Interrogatories 39 and 40 1
because such information is relevant and-therefore discove'rable.-
y1 I n t c r,, o... t... y io
- 2 'h :
ti e. i u m., i. tio.
t.2. ;n.m L uction is taken by the CPSES pr oj ec t on the "mction plans" (p. 20). (Request at 10.)
Request M ci. 53:Unat action, work coordination, data requests, or corrective action is required by the CPSES project in responue to the CPRT document information' requestu (p. 20)?iHequest at 10.)
nequect u..
51:Unat action, work coordination, data request 2, or corrective action is required by the CPSES-proj e c t in r e t. p u ns e to support services requests (p.
+
20)? ( d e q u.ni t at 10. )
Request No. S5: What actiun, work coordination, data requests, or corrective action is required by the CPSES project in response to identified deviations or deficiencies (p. 20)? (Request at 10.)
Request No. %:Unat action, work coordination, data requet.Lu ur corrective action is required by the CPSES project in respuote to corrective action (p. 20)?
(Request at 10.)
Answer,:
.1 p p l i c a r.t. reuponse to the above 1isted interragatories is that "(t>he actions by the CPSES pr vj ect that CPHT enpacts to be taken are specified i n each Action Plan, au wcl1 au-in Program Plan Appendices E and H."
(hesponse at 26.)
CASE moveu to tuupel answert, to these interrogatories on the grounds that the a n u.w r provided in circuitous, that i s that i t refers to uo c usae n L L un.ch were t h en.s e l v e s the basis of the interrugatoric.
The ccions which are described in the'CPRT Appenat eu and Loe i. L2on Plans are general'and non-specific.
They are not defin21
.c e..uugh t'or any work to be accomplished to, and C(Eli b e l i e v t. c there n.ust be more specific criteria in the checklist and pr ocedures which dictate the actions of the CPSES proj e c t personnel In regasds to the issues identified in the interrogatories.
-,.,-,.v
,.,m w.
r n-
32 CASE moves to compel responses which provide detailed information in regardu to how the personnel working for the CPSES project, as opposed to the CPRT, will develop an auditable trail such that the conclusions reached in the CPRT will be based upon-actual completion of work as opposed to assumptions produced by the Applicants (i.e.,
a "lipinsky opinion.")
Interroqatory Nos. E - Q2,& 6-1 & 63-64 Reauest_: Identify each person within the CPSES~ project with management responsibility for initiating, directing, deciding, evaluating, responding to, providing, deciding not to provide, or implementing any acion in response of each of the'following items:
a.
action plans b.
d o c unie n t information c.
support services requests d.
identified deviations or deficiencies e.
corrective action Identify each person within the CPSES project with implementing responsibility for initiating, directing, deciding, evaluating, responding to, providing, i
diciding not to provide, or implementing any action in response to each of the following items:
Identify the APGH-Unit 1 and APGM-Unit 2 Identify each individual in the CPSES project who has any responsibliity for implementing CPRT program requirments.
a.
Provide the personnel chart or list for the construction group dedicated to CPRT. program requirments.
b.
Identify the person (s) from each of the three technical groups who are responsible for interfacing directly with the third party RTL.
c.
Identify each of the person (s).from'all.
contractors who are responsible for,~
peric r ning review, evaluations, and analysis 4
that is overviewed by a third-party 1 element.
Identify each CPCCG project person (s).
' 1 b.
W
l-33 assigned to each of the technical groups who perform the review of the CPRT acti'an plans, implementing procedures, and results reports for the ppurpose ofs b.
determining corrective action.
c.
determining plan implementation.
Identify each person (s) on the CPSES project who evaluates, reviews, decides whether to take action in i
light of, or otherwise reacts to the findings CPRT reactors, and describe in detail their duties and the criteria and/or procedures that govern ~their duties with respect at findings of the CPRT.
Answer: The Appli cants obj ected to these interrogatories on the ground that the informat' ion called for, namely the identification of specific persons performing tasks described in the program plan, is not relevant to the issue of the adequacy of the Program Plan and is therefore beyond the scope of discovery authorized by the Board on August 18 and 19, 1986.
No answers have been provided to this question at all.
CASE reasserts the arguments articulated above regarding the legitimacy of our request to determine the details of.how the CPRT actually works, i.e.
what is the level of participation of project personnel, who are they, and what are:they responsible
~
for.
Perhaps Applicants think that this question is.without any logical connection to the adequacy of the CPRT.
However, the CPRT becomes nothing more than a very expensive and elaborate over-inspection program if, after all identified defects, deficiencies, and discrepancies (by any name) are identified and then corrective action is turned back over to the personnel who allowed the proj e ct to get into the condition'it is} currently in.
.t
=
For example, Mr. Gordon Purdy functioned for years.as the 9-i', r w *
., @ ! Q(TP.3 4Q ', ',
.+
' th? udu$$JON 3%N....d ? 3 h J li: v n-f
..s w yo.y. w. #,-
He allegedly left the project some time ago, yet he is currently 12sted on the personnel rosters as employed,
at the site working for himself.
If Mr. Purdy is in,a position to disposi' ion identified deficiencies or to direct,or control corrective action by working directly for TU instead on for Brown and Root the notion that the CPRT is independent and,therefore more reliable than the project is a fantasy.
On the other hand an answer to the questions may completely eliminate the need for concern on who is doing what.
Interrogatories 60 & 62.
Request No. 60: Identify all of the CPSES project procedures used for coordinating CPRT activities and CPSES project activities.
If there are no. procedures describe the process in precise detail. (Request at 11) i Reques t No. 62: Describe in precise detail how the project personnel who are responsible for obtaining the required project information or access to the hardware will do so for each IGAP, DSAP, and GOC action' plan.
(Example omitted) (Request at 12.)
Answer: The methods for obtaining information.or access to hardware is varied and will be handled on a case-by--
case basis.
Standard project procedures are utilized.
Applicants response is inadequate.
CASE is entitled to discover information which is both relevant and could lead to relevant information.
b The procedures used by the project personnel for evaluating, resolving and analyzing the outputs of the various componenst of the CPRT is critical to being able to understand how the CPRT ultimately is supposed to resolve the identified concerns and F
6 4
g
i i-35 d e s,c r i p t i o n ).
It is therefore deficiencies (by any name or relevant and could lead to relevant information regarding the issues now before the Board.
only those generally known'to CASE, If the procedureu are i.e.
all the site procedures, the answer must be supplemented to identify all of those procedures and the current,: correct revision of those procedures.
Additionally, the criteria used to do the case-by-case analysis must be provided.
CPRT Discovery Set 2 NUMBERED INTERROGATCitIES Interroqatory No.
10 Request:In regard to the confirmatory overviews of the CPRT of the impiamentation of the corrective actions, provide the methodology (i.e.,
procedures or description of the process):
a.
for each of the activities listed on pp. 5-6 of Appendin H.
j b.
for each CPRT-identified design deficiency.
c.
that the design documentation properly reflects the implementation of the corrective; action.
d.
that the site documentation properly reflects the asbuilt and revised design documentation.'
e.
that the design documentation properly reflects the implementation of corrective action.
f.
that the documentation that demonstrates the as-built condition of the plant is in conformance with the revised design documentation.
9 that the corrective actions are adequate for any design deviations reportable under 50.5,5(e).-
i h.
that the CPSES proj ect policies, programs, and impl eme nti ng procedures or instructions l relating-to design activities have been changed to reflect the programmatic revisions.
4
36 l
l Answer: The Applicant answered the question by. stating that "(i)nsofar as this interregatory addresses the Design Adequacy Program, please see the statement above under " Design."
With respect to other Action Plans, such overview is defined in Program Plan, Appendix B.
( Response at 10.)
The response referencing the Program Plan, Appe'ndix B, is an-inadequate response since the material contained in Appendix B is no more specific than the material upon which the question was based.
Since no obj ec tion was advanced, and in fact there is no valid objection to this question (except to the extent that design issues are preserved for later), CASE requests that the Board issue an order compelling a response to this question.
CONCLUSION Similar to the issues raised by Sets 1 and 2 Applicants have made extensive use of the argument that CASE's discovery is o bj e c t i o nabl e because proper responses would call for information already developed through the implementation of the Plan. As stated in our previous motion we believe the Board was'quite clear in its view that tne scope of the issue of the adequacy of the CPRT would include as evidence some areas or issues already completed.
(Lee, fr. of August 18, 1986 Pre-Hearing Conference).
Thus, even where a proper answers would require some peripheral discussion or disclosure of the completed portions of the CPRT such questions would be legitimate.
The logic of this approach is obvious.
Since there has been some impicmentation of the program plan the meaning or interpretation of particular CPRT words, pharses orfprocedures is not theoretical, but is instead already decided inlt'he context of 7
'i 4
W
+:
O 37 implementing the commitment.
CASE does not wish here to litigate the results of the plan, or whether or not the Applicant's implementation of the plan meet its original commitmer.t, only whether the plan, if implemented perfectly, will be able to adequately resolve the questions about the reliability of the historical quality control / quality asssurance program.
(We reconize, but disagree with, Applicants theory that a decision of the adequacy of the implementation of the GA/GC program is not dispouitive of the question of required scope of the CPRT.)
CASE sunmits in conclusion of this motion the same conclusion submitted in our October 15, 1986motionktocompel.We understand that the purpose of discovery is t'o f acilitate the hearing procesu elin.inating by education many of the questions which remain unknowns about the CPRT.
We are not interested in 4
anything more than having a complete understanding of how the CPRT is designed to work, what the words.in-the doc $ ment mean as they are used and understood by individuals at the site, and how the CPRT work which has been already accomplished will be found acceptable under the current program plan.
To the extent that the answers produce information which comes from the work already implemented CASE believes that such information is helpful and useful, but not definitive.
We want to narrow the issues for hearing, perhaps even eliminating some on the basis-of an understanding and acceptance of generic elements of the program plan.
We cannot do that if the Applicant is determi ed to engage in word games and hyperbolic arguments.
3d We r e c o u. i.: e L t.a t the board cannot compel cooperation
- Lutween the parLie, however the Board can compel answers which will enabl C f.SE tu procued with this issue, and at a minimum provide u'eful analysi and structured arguments.
We seek such an order, or Line eutablishment of a procedure for depositions in whi.h' CASE casi u l i a.i n a t e the legal mar.uevering permitted by,the interrogatory p r u c e t. s and get relevant and reliable _information from the individualu uno leav e the information.
HESPECTFULLY SUBMITTED, S CD~-
4 tw v @4 DILLIE PIRNER GARDE Trial Lawyers ~for Public Justice 2000 P Street, N.W., Suite 61'1 Washington, D.C. 20036 (202) 463-8600 Novuti.Ler 26, 1986 Attorney for CASE l
f I
United States Nuclear Regulatory Comm.ssion OX KEJEI' Before the Atomic Safety and Licensing Board #"
'86 DEC -4 Pl2;Il In the Matter of
)
TEXAS UTILITIES GENERATING COMPANY,
) _ Dkt FFyo 5(-447[5-OL
)
BRANCM (Comanche Peak Steam Electric
)
Station, Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of MOTION TO COMPEL SETS 3-7 RESPONSES were served today, November 28, 1986 by first class mail., upon the following:
Administrative Judge Peter Bloch
- U.S.
Nuclear Regulatory Commission Washington D..C 20555 Dr. Walter H. Jordan 881 West Outer Drive Oak Ridge, TN 37830 Dr. Kenneth A. McCollom 1107 West Knapp Stillwater, OK 74075 Elizabeth B. Johnson Oak Ridge National Laboratory P.O.
Box X, Building 3500 Oak Ridge, TN 37830 Nicholas Reynolds, Esq.
Bishop, Liberman, Cook,
- Purcell & Reynolds 1200 17th Street, N.W.
Washington D.C.
20036 Docketing & Service Section Office of the Secretary.
U.S. Nuclear Regulatory Commission Washington D..C 20555
9 Geary S. Mizuno, Esq.
Office of Executive Legal Director U.S.
Nuclear Regulatory Commission; 7735 Old Georgetoun. Road, 10th-Floor Washington D..C 20555 Thomas G.
Digan, Jr.*
Ropes & Gray 225 Franklin Street Boston, MA 02110 Robert Wooldridge 2001 Bryan Tower Suite 3200 Dallas, TX 75201 Renea Hicks Assistant Attorney General Environmental Protection Division Supreme Court. Bldg.
Austin, TX 78711 Juanita Ellis CASE 1426 S.
Polk Street Dallac, TX 75224 William G..Counsil Executive Vice President Texas Utilities Generating Company-Skyway Tower, 25th Floor 400 North Olive Street Dallas, TX 75201 Roy P.
Lessy, Jr.
Morgan, Lewis 7 Bockuis 1800 M St.
N.W.
Washington, D.C.
20036
\\W Billie Pirner Garde
- Also sent by Federal Express
-