ML20215E003
| ML20215E003 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 12/15/1986 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#486-1973 OL, OL-2, NUDOCS 8612170182 | |
| Download: ML20215E003 (152) | |
Text
UN11ED STATES mu' 1 NUCLEAR REGULATORY COMMISSION ORGWAL IN THE MATTER OF:
DOCKET NO: 50-445 OL2 50-446 OL2 TEXAS UTILITIES GENERATING COMPANY, et al.
(Comanche Peak Steam Electric Station, Units 1 and 2)
PREHEARING CONFERENCE OV LOCATION:
BETHESDA, MARYLAND PAGES:
24676 -
24826 DATE:
MONDAY, DECEMBER 15, 1986 ACE-FEDERAL REPORTERS, INC.
I Reporters 444h Capitol Street Washington, D.C. 20001 (202)347-3700 II NATION %TDE COVERACE
/
'CR29089.0
.DAV/0jg 24676
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1 UNITED STATES OF AMERICA t/
2 NUCLEAR REGULATORY COMMISSION 3
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4
x I"'.the Matter of:
5 TEXAS UTILITIES GENERATING Docket No. 50-445 OL2
. 6 COMPANY, et al.
50-446 OL2 7
(Comanche Peak Steam Electric Station, Units 1 and 2) 8.
- - - - - - - - - - - - - - - - -x 9
10 Nuclear Regulatory Commission Fifth Floor Hearing Room yy 4350 East-West Highway Bethesda, Maryland 12 gS Monday, December 15, 1986
%-)
14 The above-entitled matter came on for prehearing 15 conference at 2:00 p.m.
16 BEFORE:
17 JUDGE PETER BLOCH, Chairman At mi Safety and Licensing Board 18 U.S.
Nuclear Regulatory Commission Washington, D.
C.
20555 20 JUDGE WALTER JORDAN, Member Atomic Safety and Licensing Board 21 U.S. Nuclear Regulatory Commission Washington, D.
C.
20555 22 23 i
24 O'-
25 l
-- continued --
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APPEARANCES:
2 On behalf of Applicants:
3 THOMAS G.
- DIGNAN, JR.,
ESQ.
4 ROBERT K.
GAD III, ESQ.
Ropes &' Gray 5
225 Franklin Street Boston, Massachusetts 02110 6
On behalf of Citizens Association 7
for Sound Energy (CASE):
8 ANTHONY Z.
ROISMAN, ESQ.
BILLIE GARDE,-ESQ.
9 Trial Lawyers for Public Justice 10 2000 P Street, N.W.
Suite 611 11 Washington, D.
C.
20036 12 On behalf of the Nuclear
/~l Regulatory Commission Staff:
(_/
3 LAWRENCE J.
CHANDLER, ESQ.
14 GEARY S. MIZUNO, ESQ.
RICHARD BACHMANN, ESQ.
15 U.S. Nuclear Regulatory Commission 16 Washington, D.
C.
20555 17 18 19 1
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PROCEEDINGS k
2 JUDGE BLOCH:
The hearing will come to order.
3 This is a hearing, prehearing in Texas Utilities 4
Electric Company, et al., operating licensing case, Docket 5
Nos. 50-445-OL and 50-446-OL.
6 I am Peter Bloch.
With me today on the Licensing 7
Board is Dr. Walter Jordan.
8 Would the parties please identify themselves for 9
the record.
10 MR. CHANDLER:
On behalf of the Staff, Mr.
O 11 Chairman, my name is Lawrence Chandler.
With me is 12 Mr. Richard Bachmann and Mr. Guy Muzono.
We are with the
()
13 Of fice of General Counsel of the U.S. Nuclear Regulatory 14 Commission in Washington.
15 MS. GARDE:
On behalf of the Intervenor, Citizens 16 Association for Sound Energy, I am Billie Garde.
With me is 17 Tony Roisman.
18 MR. GAD:
If your Honors please, Robert Gad, of 19 the firm of Ropes & Gray in Boston for the Applicants.
To 20 the left is my partner, Thomas G.
Dignan, J r.
21 JUDGE BLOCH:
Before we start, as a preliminary
{
matter, the Board would like to comment on what appear to be 22 23 communication problems between the parties that result in 24 their inability to resolve things without the Board doing
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25 it.
We understand that a course of this kind, there would 1
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'l be a tendency for an adversary environmant to spring up.
'2 That is what-the. proceedings generally are about.
3
-We have parties with different positions, but it
'4
-seems1to me that the nature of the communication problec
.5 goes beyond just being adversaries.
What I see is that the.
6 way +he parties are communicating with each other doesn't 7
!show a great deal of respect for the possibility that the 8
other person is doing_an honest job, and I think, to some 9
~ extent,~both parties have contributed to that.
10 I think Applicants' problems about some of 11 Intervenors' questions being simplistic and not considered 12-in-light of the entire document that was being asked about,
-[ j '
13 have some validity to it.
I understand why there might be
{
14 some asking about the meanicg of phrases, because at times i
15 in the past there have been problems about phrases having 16 been used in ways that were not traditional in the English
)
17 language, but on the other hand, when answers are given, the 18 dictionary meanings, the ordinary meanings are the ones that l
19
' apply.
I see Intervenors as being unwilling to accept 20 that.
21 Applicants often have answered adequately, yet i
l' 22 when they answer, they almost always do it in a tor.e that 23 makes like they are being obstructionist.
It is the manner 24 of stating things more than the answers, I think, that
~
25 creates a difficult of communicating about solutions here.
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I also have some difficulty knowing whether 2
Applicants really accepted the Board's ruling about what 3
this: stage of the case is about, that there was to be a 4
hearing about the adequacy of the program plan.
Now I 5
understand it's Applicants' position that they will prevail 6
in that part of the hearing, but I am not sure that they 7
really have any sound concept of what that means, so that 8
discovery can proceed, pursuant to the Board's ruling.
9 I'm also not sure, having seen the document that 10 was filed today, that the Applicants seriously read or 11 understood what the Board said in a written order about our 12 thoughts concerning discovery about the meanings of words as n()
13 developed historically in the development of the program 14 plan and in the early implementation of the program plan.
15 And one other question that occurs at this point 16 is, while it may be true that interrogatories are not 17 applicable to this stage of the case, if they're asked 18 relevant to the case, then the only thing that happens is 19 some delay in response, not an excuse for the response.
20 We have read the Intervenors' suggestions for how 21 we proceed today.
Just based on our having prepared to go 22 through the instructions and interrogatories one at a time, 23 I think it would be more confusing for the Board to follow 24 the Intervenors' suggestion.
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Board is going to suggest that we just start with the 2
instructions, one at a time, and then start with the sets in 3
order.
4
.Would the parties like to comment on anything 5
that the Board has just'said?
6 MR. CHANDLER:
Staff has a question, 7
Mr. Chairman.
8 Obviously, in light of the nature of today's 9
discovery conference, we intend, for the most part, if not, 10 indeed, for everything to observe rather than actively 11 participate, but a comment made by the Chairman a moment 12 ago, as well as, I believe, in the Board's December 3 order (m) 13 scheduling this discovery conference, did raise a question 14 in our minds.
15 In particular, it was the Chairman's comment a 16 moment ago, that there will be a hearing.
17 JUDGE BLOCH:
I would like to correct that.
18 This phase of this case is now discovery about 19 the adequacy of the plan, and there will be, then, a motion 20 for summary disposition, and Applicants and Staff are both 21 correct that we have not promised a hearing.
That will 22 depend on what we see in the papers that are filed.
23 MR. CHANDLER:
Understood.
Thank you.
That 24 clarifies that matter.
25 JUDGE BLOCH:
It seems to me that the best place ACE-FEDERAL REPORTERS, INC.
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to start'here would be with Mr. Roisman or Ms. Garde, 2
starting with the instructions.
3 MS.. GARDE:
Your Honor, I was prepared to begin -
4-the hearing with a summary of the argument which proposed 5
that we follow the generic issues items.
Since you have 6
ruled that we are going to do this item by item, I just need 7
a few minutes to reorganize my materials.
8 JUDGE BLOCH:
How many-minutes would we expecdt?
9 MS. GARDE:
Five minutes.
10 JUDGE BLOCH:
We will take a five-minute recess.
11 (Recess.)
12 JUDGE BLOCH:
On the record.
()
13 I would comment that the Board has not granted 14 the Applicants' suggestion we throw out all the 15 interrogatories, because there has been sufficient 16 argument.
17 So let's continue.
18 MS. GARDE:
Your Honor, by way of background, it 19 is important to point out that the instructions that we are 20 now going to discuss were developed in conjunction with the 21 phase of the hearing that was ruled upon in August at the 22 prehearing conference, that is, the case would have one 23 round of written discovery, after which we would take 24 whatever depositions were necessary, and then write motions
- A
(-)
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2 In furtherance of that objective, we worked on or 3
designed a set of instructions, which were the first 4
document that we filed.
The instructions ar largely 5
directly out of the Federal Rules of Civil Procedure, and 6
what is usually used in proceedings of complex litigaition 7
of this type, there are a number of cases where our 8
instructions are beyond what is authorized by the Federal 9
Rules but certainly not beyond what could be expected in 10 this case under the circumstances that we are under, as well 11 as seeking legitimate information.
12 We would ask that you review these instructions
.(G) 13
.and exercise your authority in control of this proceedings, 14 so that we do not have to come back and probe for this 15 material in greater depth at a later time.
In short, what 16 we're saying is, that we are legitimately entitled to all of 17 the things that we have sought by using these instructions, 18 but it is more logistically feasible to put it in a set of 19 instructions as opposed to asking a set of very detailed 20 questions following each interrogatory.
21 Our main problem with the way Applicant dealt 22 with the instructions, is that since they blanketly objected 23 to the instructions, we have no idea what they follow or 24 what they didn't follow for each question.
And so wew are 25 in the dark for the most part as to those things that they I
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1 did not reply.
2 Because of that, we haven't answered Applicant's
'3 repeated baiting, if you will, that we haven't pointed 4
where we have been harmed by not following the 5
instructions.
We can't point out where we've been harmed by 6
not following the instructions, when we don't know what 7
instructions we're not following.
8 With those thoughts in mind, we'd like to move 9
through the instructions, one by one.
10 JUDGE BLOCH:
First of all, I would like to ask 11 whether the Staff intends to argue any aof this.
12 MR. CHANDLER:
No, Mr. Chairman.
()_
13 JUDGE BLOCH:
Why don't we do them one at a 14 time.
A, first.
15 MS. GARDE:
I don't know what document that 16 everyone is working off of.
I have in front of me my 17 original set of instructior.a.
18 Is that what you have?
19 JUDGE BLOCH:
I assume they're the same as in the 20 motion to compel.
21 MS. GARDE:
Yes, they are, but if we refer to 22 page numbers.
23 JUDGE BLOCH:
I'm actually looking at the motion 24 to compel.
25 MS. GARDB:
The instructions starting on page ACE-FEDERAL REPORTERS, INC.
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11, with A, is continuing in nature.
We believe that this 2
is in compliance with the Rules.
3 JUDGE BLOCH:
Are you talking about the NRC 4
rules?
5 MS. GARDE:
With the Federal Rules, your Honor, l
6 I think there is a slight difference to the NRC rules, which 7
require only seasonally updating information, but in this 8
case, where we are talking about a one-time shot at 9
discovery, in order to prepare motions for summary judgment 10 and move this case alor.g, it seems that we need to have 11 accurate information before we can write that motion.
12 JUDGE BLOCH:
Is there a real problem with n(,)
13 2.740(e)(2) in the way it does require supplementation?
14 MS. GARDE:
No.
I don't have -- we forgot the 10 15 CFR at the office.
16 JUDGE BLOCH:
The party is under a duty 17 seasonally to amend a prior response, if he obtains 18 information on the basis of which one, he knows that the 19 response was incorrect when made, or two, he knows that the 20 j response, though correct when made, is no longer true and i
21 j the circumstances are such that failure to amend the i
22 '
responses is, in substance, a knowing concealment.
23 MS. GARDE:
No.
24 '
JUDGE BLOCH:
You don't need the instruction
(' /h
'm 25 then.
So let's go on to B.
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MR.~ CHANDLER:
Mr. Chairman, if I may make just 2
one comment'before Ms. Garde continues.
3 In response to your qdestion earlier, I indicated 4
we did not intend to-participate in the argument in the 5
Staff's. response to cases, interrogatories of the Staff.
6 There were a number of objections raised by the Staf f.
-7 Those matters, we dons't believe are before the Board today,
'8 in the context of this conference.
9 JUDGE BLOCH:
That's our understanding also.
- 10 MR. CHANDLER:
I don't intend to waive any of the 11 arguments we may have raised in those.
i 12 Beyond that, we don't have any.
4
'( )
13 JUDGE BLOCH:
And if you do want to, at some 14 time, be involved, just wave vigorously.
15 Instruction B.
16-MS. GARDE:
We don't believe this is any 17 different than the rules.
The last statement, the response i
i 18 should indicate when an answer is based on information and i
19 belief, we think is necessary in this case, so we know who 20 is answering the question.
(
21 JUDGE BLOCH:
I am sorry.
Is that in B?
j 22 MS. GARDE:
Yes.
The last sentence.
l 23 JUDGE BLOCH:
It just says the response should t
l 24 indicate when an answer is based upon information and l_
25 belief.
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MS. GARDE:
Yes.
2 JUDGE BLOCH:
That doesn't say that they should 3
indicate which person answered.
4 MS. GARDE:
That is also contained in these 5
instructions.
If a question is only based in information 6
and belief, we ask that the answer in the question, that 7
that information be put in the response.
8 JUDGE BLOCH:
I take it that the thing that's 9
most unusual about your instruction has to do with 10 attorneys; is that correct?
11 MS. GARDE:
Yes.
12 JUDGE BLOCH:
And what is it that you really want r"N
!,)
13 about the attorneys?
You want the information of the 14 attorneys to be attributed to the Applicants, unless 15 privileged; is that right?
16 MS. GARDE:
Yes.
17 JUDGE BLOCH:
Okay..
Is that your entire argument 18 on this instruccion?
?
19 MS. GARDE:
Yes.
20 JUDGE BLOCH:
Applicants?
21 There was a summary at the beginning, so if you 22 want to make a brief summary now on your first instruction, 23 you can do that, but we have read the documents.
MR. GAD:
The only summary that I would make, 24 l 25 l your Honor, is that there is very little, and arguably, no I
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function to be served by prefacing a set of interrogatories 2
with instructions.
3 The duties that befall a party who is the 4
recipient of interrogatories, who's been served with 5
interrogatories, are set forth in the rules and 6
regulations.
That's what you're obliged to do.
That's what 7
we intend to do, and insofar as I'm aware, that's what we 8
have done.
9 The lengthy instructions in the front can be one 10 of two things.
They can either be a paraphrase, a good one 11 or a bad one, but a paraphrase, nonetheless, of what's in 12 the regulations, in which' case, they're a hopeless
,'O
')
13 tautology, or they can be something that attempts to alter 14 the structure that's been created by the rules, in which 15 case, they are a nullity.
16 JUDGE BLOCH:
Mr. Gad, I can think of one other 17 possibility.
That is, you put in something that you 18 otherwise would want to put in every question, 19 individually.
?
20 MR. GAD:
A definition, perhaps.
And one could 21 i include -- when I write a set of interrogatories, I could 22 say, please identify -- and " identify" means subpart (a),
23 {
subpart (b) or " Applicants" means or something like that.
24 I That is an incorporation by reference of a 0
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25 f definition.
I'm not arguing definitions this morning.
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function to be served by prefacing a set of interrogatories L
2 with instructions.
3 The duties that befall a party who is the 4
recipient of interrogatories, who's been served with 5
interrogatories, are set forth in the rules and 6
regulations.
That's what you're obliged to do.
That's what 7
we intend to do, and insofar as I'm aware, that's what we 8
have done.
9 The lengthy instructions in the front can be one i
i 10 of two things.
They can either be a paraphrase, a good one 11 or a bad one, but a paraphrase, nonetheless, of what's in 12
- the regulations, in which' case, they're a hopeless
()
13 tautology, or they can be something that attempts to alter L
14 the structure that's been created by the rules, in which l
15 case, they are a nullity.
l-16 JUDGE BLOCH:
Mr. Gad, I can think of one other 17 possibility.
That is, you put in something that you 18 otherwise would want to put in every question, 19 individually..?
20 MR. GAD:
A definition, perhaps.
And one could 21 include -- when I write a set of interrogatories, I could 22 say, please identify -- and " identify" means subpart (a),
23 subpart (b) or " Applicants" means or something like that.
24 That is an incorporation by reference of a N,
25 definition.
I'm not arguing definitions this morning.
I
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don' t understand that any issue has been raised about 2
definitions, but the propriety and function of definitions, 3
as a preface to interrogatories, has nothing to do with the 4
propriety and function, if any, of instructions.
5 That will shorthand everything that we wrote in 6
our memorandum by way of a preface.
7 We have two problems with Instruction B, as it 8
appears on page 12 of the first motion to compel.
The first 9
one is that we just simply don' t understand the first 10 sentence which appears to have a transcription error, 11 somehow or another, although, it did in the original, as
{}
12 well.
13 JUDGE BLOCH:
I think I do understand it.
There 14 are two commas missing.
It is not particularly artful, but 15 I don' t really understand the problem.
As I understand it, 16 it reads, "Unless privileged and specificaly alleged with 17 respect to specific identified material and the basis for 18 the claim, attorneys."
19 MR. ROISMAN:
That is correct.
20 MR. GAD:
In other words, answers are to be given 21 on the basis on attorneys' information.
22 JUDGE BLOCH:
Yes.
That was what I already 23 clarified with the Applicant.
Attorneys' information,
()
24 unless privileged.
25 MR. GAD:
We have two problems with this, perhaps ACE-FEDERAL REPORTERS, INC.
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- a. third, but all comes down to one point.
These are 2
interrogatories addressed to a corporation.
If the 3
interrogatories were addressed to an individual, if, I,
for 4
-instance, in my individual capacity, received a set of 5
interrogatories, then the rules say that I have to answer 6
them, based on such information as I have, and I have to 7
sign them under oath.
8 But these are interrogatories addressed to a 9
corporation, and the rules specifically address what a 10 corporation is obliged to do, when it gets interrogatories.
11 I quote now from Federal Rule 33(a).
12 "If the party served with interrogatories
()
13 is a public or private corporation or 14 a partnership or association or 15 governmental agencies, they shall be 16 answered by any officer or agent who 17 shall furnish such information as l
l 18 is available to the corporation."
19 Now if your Honor peruses the signature block on 20 any one of these sets of answers to interrogatories, they 21 are all the same.
What it says is, that the person signing the interrogatories -- in this case, it was the program 22 23 director of CPRT, since CPRT was the source of most of this 24 information -- that he has assisted in preparation of the f)T 25 foregoing answers, and that the foregoing answers are true.
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Now if we stopped there, that would be personal knowledge, 2
except, insofar as they are based on information as is 3
available to Texas Utilities, the party served, or to the 4
-CPRT, but not within my personal knowledge as to which I, 5
based on such information, believe them to be true.
6 That certificate is a reasonably standard 7
certificate.
It is drawn verbatim from the rules for 8
dealing with interrogatories served upon a corporation and 9
that is all that is required.
10 One does not convert interrogatories to a 11 corporation into a set of interrogatories to be Xeroxed and 12 sent out to 30 or 40 different people, as to which, you are O
la set #9 ee 9et ao er 40 differece reenemeee.
14 15 16 17 18 19 20 21 l 1
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JUDGE BLOCH:
You are saying, however, that he 2
has made reasonable efforts to find out from the 3
corporations, agents, and representatives what the situation 4
is, correct?
5 MR. GAD:
Precisely.
6 JUDGE BLOCH:
I am not sure then that there 7
really is a disagreement about that.
8 What is the problem, Ms. Garde?
Is it different 9
with respect to attorneys?
10 MS. GARDE:
Absolutely.
I must say I never 11 considered that the interrogatory would be calling for 12 information from attorneys.
{
(~s) 13 Suffice it to say that whatever information 14 attorneys might have in this case is information that has 15 been acquired in the course of trial preparation, the 16 acquisition of which by discovery is barred by 10 CPR 17 2.740B2, I think it is.
18 I will check the reference.
19 JUDGE BLOCH:
Can CASE briefly comment?
What is 20 the problem?
21 MR. ROISMAN:
There are two.
Let me take the i
22 !
last one first.
23 The purpose of asking the question with regard to 24 l the attorneys is twofold.
(~)
l is' 2 5 ;~
Number one, in prior aspects of this proceeding l
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we have gotten blanket objections to questions on the ground 2
that it was attorney work product or that it was 3
attorney / client privilege without following the rules.
4 Contrary to Mr. Gad's representation, they do not 5
always follow the rules.
The rules couldn't be more clear.
6 If you are going to claim the privilege, you have to 7
identify the document or documents and you have to say who 8
it is.
So that is number one.
9 If they are going to make the privilege and they 10 want to make it on every case where an attorney has 11 information, then they have to do that.
12 But, number two, and more generally what we are O(_j 13 seeking here, is we want to know what the source of 14 information is.
You may remember at an earlier stage in old 15 Docket 2 we had a witness on the witness stand who under 16 oath asserted to us -- and it was Mr. Purdy -- that he had 17 information that a particular employee had been discharged 18 because he slept on the job.
!!e said that to us under 19 oath.
20 When we finally went through discovery, not 21 dissimilar from this kind of an interrogatory that we demand 22,
be answered, one, that Mr. Purdy had no personal knowledge i
23 j of anything; two, that his knowledge was based on a 24 telephone call that he had made; three, that the person he 25 l spoke to on the phone had no knowledge of anything; four, ACE-FEDERAL REPORTERS, INC.
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that the person he got the information from gave contrary 2-information that he testified to.
3 JUDGE BLOCH:
Where in this instruction do you 4
request the specific name of the person who had the 5
information?
6 MR. ROISMAN:
It is this instruction coupled with 7
a later instruction.
This instruction lays out the bases as 8
to wanting to make clear that we want to get at the direct 9
information, and then in a later instruction we ask for
.10 them, when'the person who has been the preparer of the 11 answers does not himself have personal knowledge, to tell us 12 who does.
()
13 It is two pieces.
They are not all together in 14 one place.
That is, if you will, a preamble to that, but 15 that is the reason for it.
16 JUDGE BLOCH:
My understanding is that the only 17 thing you are not getting in this particular instruction is 18 attorney's information, and I am afraid it is sufficiently 19 unusual that without the authority for your right to get it 20 I am unable to rule in your favor, and I don't see any 21 authority for that in your filing.
22 MR. ROISMAN:
I wouldn' t have a real quarrel with 23.
that if that were all we weren't getting, but I think 24 Mr. Gad indicated to us that we were also always going to 25 get back this generic statement.
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JUDGE BLOCII:
You said there was some other 2
instruction that would give you something else.
3 Why don't we see about the other instruction when 4
we get there?
5 So we are up to C.
Basically we have denied 6
Instruction B.
We are thinking that what you have got is 7
adequate with respect to what we know, and we have no 8
special reason to grant the request with respect to 9
attorneys.
I 10 C.
~
11 MS. GARDE:
C was an instruction that was 12 basically for construction purposes so that people who were
()
13 reading could figure out what answer went to what question.
14 It was not followed for the most part by Applicants.
It is f
15 obvious on its face when it was not followed.
16 Ilowever, it was pretty easy to determine when it 17 wasn't followed what the answer was.
18 JUDGE BLOCil So no serious question because it 19 was clear enough what they were responding to?
20 MS. GARDE:
Yes.
21 JUDGE BLOCll D.
22 MS. GARDE:
This interrogatory is one of the ones 23 which, coupled with several others, seeks to find out who l.
24 knows what at the site about the CPRT and the issues that we 25 are attempting to discover, t
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It is probably a little more than the rules 2
provide for, but it is certainly not more than we are 3
entitled to in this proceeding.
4 JUDGE BLOCH:
The problem I have with it is that 5
there might be some claims of privilege where if you looked 6
at them you just wouldn't bother to pursue it further.
7 It seems to me that what you have got here is in 8
the nature of follow-up discovery about sources of 9
information that led to the claim of privilege, is that 10 correct?
11 MS. GARDE:
Yes.
12 JUDGE BLOClit It is not clear to me that you
()
13 really want it for every claim of privilege.
14 JUDGE JORDAN:
Is it only the questions on which 15 the claim of privilege comes up that you are concerned 16 about?
17 MS. GARDE:
Yes.
If privilege isn't claimed, 18 there isn't any need for the information, yes.
19 JUDGE BLOCil:
Is it clear to you that you really 20 wanted it for every claim of privilogo?
21 !
MS. GARDE:
I don't understand your question, 22 J udge Bloch.
23 ll JUDGE BLOCil I am just saying that some claims 24,
of privilege, if you look at them, might be sufficiently
(
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to put them to the trouble of giving you the information you 2
are asking for.
3 MS. GARDE:
That -- as Mr. Roisman was pointing 4
out, it isn't a problem as you stated it.
The problem is we 5
don't have follow-up.
This is it.
We have a one-timo deal 6
here.
So we have to got all the information, and we try to 7
incorporate our follow-up questions into those instructions 8
as well as into the interrogatories themselves.
9 JUDGE BLOCil:
Okay, let's think.
I don't recall 10 any claim of attornoy's work product privilogo in the 11 answers.
12 Am I right about that?
r~
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13 MR. GAD:
No.
14 JUDGE BLOCil There was somo?
15 MR. GAD:
When you say attorney work product, I 16 take it, your lionor --
17 JUDGE BLOCll:
I am sorry, claims of privilogo.
18 It is more than that.
19 MR. GAD:
Attorney / client privilogo, 20 communication privilogo?
I don't know what your lionor is 21 inquiring about.
22 l JUDGE BLOCil:
I guess what I am asking is if I
23 i thoro is a group of questions to which this is applicable, 24 !
is there a group of answers to which this instruction in 25 applicablo, or are wo asking about something that is moot?
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MS. GARDE:
As to attorney / client privilege and 2
work product privilege --
3 JUDGE BLOCil:
Whatever you intended it to 4
address.
5 MS. GARDE:
We intended, where there was 6
information that was privileged, that we identify what that 7
information was, what the reason for the objection was.
8 JUDGE BLOCil All right.
Is that an empty set, 9
or ace there questions that fall in that category?
6 10 MS. GARDE:
This is one of the problems, where we 11 don't know.
I don't know, since the instructions were 12 ignored, if there are answers to the questions which are
()
13 privileged but which were not identified.
The instructions 14 were blanketly ignored.
l 15 It is possible that there is information that 16 responds to certain interrogatories which they have just not 17 identified.
18 JUDGE BLOCil:
Okay.
19 Applicants' response?
t 20 I assume that if you had an answer and it was i
21 ;
privileged, you would have claimed the privilogo, am I I
22 right?
i 23 MR. GAD:
Wo probably would havo objected to the 24 question, your lionor, and in fact wo did on rare occasion 25 that we were asked the question.
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If I might, respectfully, again looking at Rulo 2
33(a) of the Federal Rulos, it says that:
3 "Each interrogatory shall be 4
answorod separately and fully 5
in writing under oath, unless 6
it is objected to, in which 7
ovent the reasons for the 8
objection shall be stated in 9
lieu of an answer.
The answers 10 are to be signed by the person 11 making them and the objections 12 to be signed by the attorney
()
13 making them."
14 Now, that is all that is required with respect to 15 objections as a whole, including those objections that are 16 grounded on privilogo.
17 Your lionor is quito correct that oftentimos the 18 objectionablo nature of the question is obvious from the 19 nature of the question itself.
20 Thoro's two kinds of objections, one to the 21 question and one to the answer.
I can think of one 22 lj situation whero the objection that was interposed was not 23 {
necessarily obvious on the faco of the question, in which 24 caso in our statomont of the objection we put in the facts 25 necessary to support it, and I have in mind the issues I
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matrix.
2 There is one interrogatory that says give me your 3
issues matrix.
The objection points out that however valid 4
that interrogatory might otherwise be, in this case that is 5
a specific program plan output, and therefore it is objected 6
to on certain grounds for which that fact is predicate.
7 But the applicable rules on when you are 8
objecting to something, including on grounds of privilege, 9
are what are set forth in the Rules of Practice.
That is 10 what we followed, and that is all we are required to 11 follow.
12 JUDGE BLOCll:
What I would like to know from CASE
()
13-is to whether there were particular answers with objections 14 where the objection wasn't sufficiently well laid out so 15 that you feel that you need more follow-up discovery along 16 the lines of this instruction.
17 MS. GARDE:
No.
18 JUDGE BLOCil:
Let's go on to the next 19 instruction.
i
-20 E and F are really the samo, aren't they?
t 21 MS. GARDE:
They are very similar, yes.
22 JUDGE BLOCll:
And they really deal with the t
23 question of asking the Applicants to identify missing 24 information if in the courso of answoring the question they
[
25 discover that thoro is missing information.
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Do you have anything more to say about that?
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MS. GARDE:
No.
You have accurately summarized i
3 what we are attempting to find by these two instructions.
4 JUDGE BLOCH:
Mr. Gad, what is the problem with 5
telling them when you go about trying to find information 6
that you find that things are missing?
7 MR. GAD:
There are two.
I say that, and then I l
8 stop and correct myself, and-there are three problems with 9
that.
But fortunately, I forget number three by the time I 10 get through one.and two, so no harm is done.
11 The first problem is that if you were to take f
12 this kind of an instruction and mechanically apply it across
()
13 the board, you wouldn't get answers for an awful long time.
14 There is no requirement that you go out and go through the 15 mental process of this kind of effort when you are answering s
l 16 interrogatories.
The rules just plain don't require it.
17 JUDGE BLOCil Suppose this was just the last j
18 question, and the question was for any of the questions you
[
)
19 have answorod please make a good faith effort to toll us if i
20 you ran into substantial road blocks and gaps of t
21 information.
22 MR. GAD:
That would be very different from thoso 23 instructions, your lionor.
That would probably be a zero j
24 offort proposition becauso, you suo, if intorrogatories woro 25 answorod fully, then when somobody came to the process of 1
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I recognizing that there is a data gap because something that i
2 we knew used to exist but no longer can be found, then you 3
would disclose that in some fashion or another.
f i
4 That is not what E and F are all about.
- Indeed, i
5 if you read E and F literally, if you read them literally, l
6 they are never possible of being answered because they 7
7 always stipulate lack of knowledge, which the subparts then 8
require you to come up with.
l I
9 The third problem I have is, again from memory, I 10 can recall only one situation even vaguely approaching l
11 this.
It is an interrogatory that said please list every I
12 meeting during a time span -- and I think it was June to j
'O la oecemeer of 1984, eue I coeld ee wremo aboet tae orecise 14 time period.
It-said that is the period during which the t
15 TRT letters were being issued, and it said plonse list every
[
t 16 meeting at which one of these TRT letters might have been 17 discussed amongst classos of people that excluded very few 18 and then for each meeting 16 or 17 specific details.
i 19 The responso said we are unablo -- after an 20 objection, the responso said we aro unable to provide such a e
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list because no records have boon kept and thore were so
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i 22 many meetings that it can't be responded to.
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23 So the problem in not in providing the 3
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information when you are aware that you have it.
The I O t
25 problem is with the kind of oxorciso -- assuming it woro i
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possible at all, somethir_g like what your lionor described 2
versus what is in E and F, and then sitting there and having 3
to go out and do that kind of analytical process, perhaps 4
research to find out what is not to hand each and every 5
time.
6 It is not feasible.
It is not required by the 7
rulos.
8 JUDGE DLOCil:
Can you assure me that in the 9
course of answering in fact they got any disclosures that 10 woro in fact necessary about substantial gaps that you found 11 as you were answoring questions, things that would havo had 12 answers but you know are missing?
(n) 13 MR. GAD:
I think the answer is yes, but I would 14 como at it a little difforontly becauso I don't want to 15 misload anyono or overcommit.
16 Very few of the interrogatories required going 17 back and looking at historical records or matters of fact; 18 at least very few of those that woro not objected required 19 that.
20 I will say again, if in the courso of sotting out 21 to answer an interrogatory it was in the past or to in tho 22 f futuro discovered that somo document or some class of i
23 i records that wo think exists, that ought to exist, that wo I
24 !
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the situation where saying that would not be part of a 2
full-scale responso.
3 So the answer, I think, is "yes," although the 4
situation did not present itself in thoso sets.
5 JUDGE BLOCII:
Mr. Roisman, is that an adequate 6
assurance for you or Ms. Garde?
What do you want more than 7
what Mr. Gad has just described?
8 MR. ROISMAN:
The problem is what you started off 9
with, and wo didn't comment on that.
Maybo now is the 10 appropriato timo.
11 It is truo -- you are correct -- our pleadings 12 aro based upon a lovel of suspicion.
I submit that the O
13 recera eota oive oe ee e seeis for ta t-1 em sore thet 14 the utility would arguo to the contrary.
15 nut in the interost of protecting our clients, wo 16 start with that.
Admittedly, thoso instructions grow out of 17 that suspicion.
In a different case with a different 18 j history, it would be markedly moro difficult to justify why 19 you would be concerned that information in a utility that is 20 under a fairly stringont requiremont of the NRC to protect 21 documents, anyway, might find itself in a position that it 22 couldn't answor a question becauso somo ploco of information 23 l was missing, tho document had boon lost or destroyed.
24 _
That is mado even more complex horo becauno a lot O
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in, for lack of a better term and one that someone also 2
coined, an iterative process.
3 Maybo the best example is the knowledge that has 4
now come out of this discovery that there is a Rev 4 of the 5
documents that wo are attempting the litigato the adequacy 6
of in its Rev 3 version.
7 I would have thought that wo would have known 8
that, if not at any other timo, at the time that wo 9
originally had the argument about having discovery about the 10 meaning of the document and which now wo are lod to believo 11 is not the document that is in placo.
12 That is why I don't think it is a question horo,
( ))
13 and I don't want to carry this mistrust thing over into somo 14 sort of vonal thing.
I don't think that somobody is over 15 thoro shredding documents after they take a look at 16 discovery requests.
17 What I think it is, is that thoro is a l
la dramatically difforont porception of our rights to 800 19 '
information from our sido and from the utility's side.
20 Bocauso we have that different view, wo are trying -- and l
21 !
the instructions are admittedly unusual and not usual, and L
22 l the definitions are very stringont, and I assumo woro 23 l followod because thoro had boon no objections to them -- to i
24 l really pin things down.
This is an attompt to pin things (V-)
25 l down.
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Maybe those words lef t the potential for an 2
impression that Mr. Gad say, hoy, there is no way we can 3
deal with that.
That is why wo also preambled them with 4
what we thought was the Board's request, that we try to 5
talk.
6 If Mr. Gad had como to us and said what he said 7
here today and said, hoy, do you really mean that I have got 8
to go out and spend two wooks of timo to do a search to find 9
out what the document was that someono scenis to remember 10 there was one that we can't find any moro, than I think wo 11 could have answorod that and dealt with it and made it 12 work.
/O
(,)
13 We are now hero.
So wo are each in our little 14 rigid boxos, and our position romains, you know, wo think 15 that the interrogatory instruction is ossential to got at 16 some of the kinds of information wo want.
17 Can I imagino a way that we could modify it to 18 mako it more palatable to the utility?
19 Yes, as soon as I hear that they aro willir.; to 20 allow it to be mado more palatablo and still answor.
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MS. GARDE:
I just wanted to add cne followup.
2 And that is, che very reason that Mr. Roisman just described 3
and what Mr. Gad complained of is the reason we didn't move 4
to compel on a lot of these questions; where the objection 5
was this would be a monumental amount of work and we don't 6
think it's necessary, et cotera, and wo took a long look at 7
those and didn't move to compel on the ones where we thought n
8l that they had a legitimate po*ition and we could figure out l
9l what we needed in some other way.
II 10 JUDGE BLOCil:
Mr. Roisman, if you had to state 11 something that was within the scope of this that really d
12 )
mattered,ho you, what would it be?
What is it you really 13 want?
14 MR. ROISMAN:
Let Billie do it.
I can think of 15 !
some that might be too hypothetical to make anything --
16 JUDGE BLOCil I'll address it to CASE in the 17 0 future.
18 i MS. GARDE:
These two instructions attempt to 19 q find all the materials that went into the development of the i
20 1 CPRT.
This is actually the fourth revision of an extremely I
21 ]
complex document.
[
JUDGE DLOCll Let's stop.
If that's true, let's 22 i
23 discuss this in that context when we get to that particular I
24 l interrogatory.
There's only a few there, I think.
<~;
25 l MS. GARDE:
That's fine.
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JUDGE BLOCil If applicants don't mind, we're 2
done on this question.
3 MS. GARDE:
No objection from me.
4 JUDGE BLOCH:
The case request, which is on page 5
13 of the motion to compel.
6 MS. GARDE:
This request seeks, as it states in 7
the document, what the words and phrases or terms and 8
phrases mean in practice in the CPRT.
9 We seek this information in order to understand 10 the document and in order to be able to make some type of 11 judgments on which issues we disagree with, which terms and 3
i 12 phrases, if you will.
(n) 13 As they are used, we have a problem with and 14 pursue either in deposition further or in our motion for 15 summary judgment.
16 Most importantly, we sock to know what certain 17 things mean so that we are not misunderstanding of what 18 applicants are saying.
19 JUDGE BLOCll:
Do you 800 that one way of 20 interpreting your question is to ask for the name of every 21 l person who works for the project?
22 {
In fact, overy person who works for the project 23 has to interpret the plan.
24 MS. GARDE:
Yes.
O s_/
25 JUDGE BLOCll:
Doesn't it seem on that basis that i
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1 it's too broad to get at what I think you wanted, which was 2
information about the interpretation of the plan at higher 3
levels?
4 MS. GARDE:
Yes and no.
We certainly didn't ask 5
or didn't intend to ask that every person on the site, and I 6
think there's some five to six thousand people who are 7
working out there, would share with us what they believed 8
this word or this term or this phrase means.
9 But we do think that we need to get beyond the 10 management level to the' people who are writing and 11 implementing the procedures and determine what they 12 understand this term to mean as it is to be implemented in.
O la ese are3ect-14 So, beyond management level, beyond the top 15 levels, and beyond the level of the people who originally 16 wrote the document, but not down to the actual day to day 17 implementation.
So something beyond just the offer of the 18 19 document.
20 Am I explaining myself, sir?
21 JUDGE BLOCII:
Yes.
I'm wondering why it was 22 necessary to go beyond the completed CPRT results reports, 23 since the rest does seem to be in process.
24 And I thought that when we allowed this issue, we 25 talked about looking at completed things tor the purpose of ACE-FEDERAL REPORTERS, INC.
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getting an understanding of meanings.
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MS. GARDE:' I don't have any-problem with
-3 limiting the response to the results reports that I 4
completed'in the context of the applicant answering those 5
questions, or just giving those definitions.
6 There's enough results reports completed that our 7
-question would be answered.
8 JUDGE BLOCH:
Now, for those reports
- at are 9
completed, don't you already have the names of the people
' l:0 who-would answer this instruction?
11 Don't you have the names of the principal people 12 who are implementing and making decisions about the results A
(
13 reports?
s-14 MS. GARDE:
That can be determined from the 15 files, yes.
16 JUDGE BLOCH:
So you don't need this request?
Is 17 that correct?
18 MS. GARDE:
Before I say that, I want to read it 19 again.
20 (Pause.)
21 I have to disagree that I doa't need this 22 question answered because, based on just the information 23 available in the results reports, because the words and 24 phrases of the CPRT also have to be interpreted by project 25 personnel, the project personnel that interface with each of ACE-FEDERAL REPORTERS, INC.
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the results reports, that is, the people who' pick up and do 2
the' collective action, make some of'the decisions based on 3
the identification of deficiencies, are'not necessarily i.
4 identified in the results reports.
5 JUDGE BLOCH:
If I remember correctly, you have a 6
whole set of interrogatories about that interface between 7.
the CPRT, finished results reports and the project 8
personnel.
9 MS. GARDE:
I have some questions.
I'm not sure, 10 without looking back at those questions, if those questions I
11 also seek this level of detail.
12
- JUDGE BLOCH:
What is the purpose for wanting
()
13 these names?
For depositions?
14 MS. GARDE:
For depositions or motions for 15 summary judgment, yes.
16 JUDGE BLOCH:
For the motions for summary 17 judgment, I take it that the purpose is to see whether 18 there's such a pervasive presence of prior personnel that no 19 one would have confidence in this project.
20 It has to be a really extreme type of thing 21 because it would not be just going to credibility.
It would 22 be so pervasive that we would decide the whole plan is no 23 good.
24 MS. GARDE:
We have argued that independence, and
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(/
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serious problem.
Whether we would argue that in a motion J
for summary judgment largely depends on if we find out who 3
formed the CPSES project is interpreting and dealing with 4
the CPRT.
5 JUDGE BLOCH:
The question is:
In what way would 6
it be useful for summary disposition to get these names?
7 MS. GARDE:
I'm sorry?-
8 JUDGE BLOCH:
In what way would it be useful for 9
summary disposition to get these names?
Am I wrong that it
~
i 10 would only be helpful if it were really a very pervasive 11 practice?
So pervasive that we would consider it to go 12 beyond the credibility of the CPRT results reports?
()j 13 Because we already ruled that we thought it was 14 primarily related to credibility, to challenge 15 independence.
16 MS. GARDE:
That's correct.
17 JUDGE BLOCH:
Mr. Gad, would you-like to comment?
18 MR. GAD:
If your Honor please, on page 13 of 3
19 CASE's first motion to compel, which may be what your_ Honor 20 has before you because I think that's how you started, 21 there's a slight omission in the quotations.
22 It says " applicant's response".
Actually, what 23 we said was " objection, partial".
The only extent to which 24 we objected to this request, which we've called the first
\\
25 unnumbered request in set one, had to do with in process.
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I understand that's no longer so.
That's the 2
only extent to which we objected to this.
I would point out 3
that, as:the answers state, the only people with authority c
4 to interpret the. terms of the CPRT program plan should 5
interpretation'be required is the senior review team.
6-But I. simply point that out to your Honors.
The
'7 fact of tha matter is that this request was objected to only i
.8 in so-far'as it went to in process.
If that's no longer a 9
contest, then I don't think there's-anything left on this 10 one.
11 JUDGE BLOCH:
Ms. Garde, what's the problem?
Or
'12 is there?
.n
- (_)_
13 MS. GARDE:
The answer did not provide any of the 14 namesiof individuals with the project.
I understand 15 Mr. Gad's answer that no one other than the SRT interprets, I
l 16 but-that just doesn't reflect the day to day reality of 17
-what's happening out at the site.
18 MR. JORRDAN:
Isn't that quite correct?
I 1
19 believe it was Mr. Gad's position that the results reports 20 themselves did state who the project people are and what 21 their job is, that that is part of the results report, in 22 particular the files which you do have, which back up the 23 results reports.
24 MS. GARDE:
The working files don't contain the 25 l
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-1 detail of corrective action that the CPSES project, not the 2
CPRT, the side that goes back to Texas Utilities, it doesn't 3
include that information in any detail, or names.
At least, 4
most of the ones that I'm familiar with.
5 There are starting to be quite a few of them and 6
each'of them are a little bit different.
But, by and large, 7
and Mr. Gad I'm sure will correct me if I'm wrong, what 8
TUGCO does about the results reports aren't in there, are 9
they?
10 MR. GAD:
From memory --
11 JUDGE BLOCH:
Mr. Gad, it's okay.
You don't have 12 to answer that because it's clear to me that you've answered I
13 the question adequately.
It says the authority to decide 14 what, gee, these terms and phrases mean in practice.
15 I think the answer the applicants has given is 16 just the fair meaning of that phrase.
17 Let's go on to the next objection, which in 18 interrogatory one.
Did CASE move to compel on each one of i
19 these?
Is that correct?
20 MS. GARDE:
Of the words and phrases?
21 JUDGE BLOCH:
Yes.
22 MS. GARDE:
No.
23 JUDGE BLOCH:
Let's just skip to the next one.
24 What is the next one?
O
\\/
25,
MS. GARDE:
Seventeen, isn't it?
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JUDGE BLOCH:
We're at set one,'aren't we?
2 MS. GARDE:
Seventeen then goes to the terms and 3
phrases, starting on page-17.
4 JUDGE BLOCH:
Page 17.
Okay.
5 (Pause.)
6 Ms. Garde, the Board went over each of these 7
terms and phrases on Friday.
And what we'd like.you to do 8
is to tell us if we're wrong in our conclusion, that in each 9
case, the answer that the applicants gave seems to be a fair 10 answer.to the question.-
11 Maybe we want to start with one that you're 12 particularly upset about and explain it in some detail what
,o
()
13 you think the applicants should have done that they haven't l
14,
done.
i 15 MR. JORRDAN:
I would also like to have CASE 16 reconsider because when those interrogatories were written, 17 it was a long time ago and there's a fair amount that has r
18 happened.
In particular, there's been a document that we've 19 recently received about answers to Board concerns, which I 20 think probably does answer a great many of those 21 interrogatories, and so forth.
22 So the question, as I say, our feeling was that 23 the applicant did answer set one adequately, particularly in 24 view of what we now know.
25 Now, if you disagree, we need to know about it.
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(._j'DAV/bc' II MS. GARDE:
I don't disagree based on information 2
that we have since received.
When we wrote these, we had r
3'~
'not'had time to study particularly the procedures more than
~
4 the legal pleading that you just referenced.
The procedures 5
flesh out most of these.
~6 So, to the extent that we had any. quarrel at the 7
time the motion to compel was written, we can live with the 8
definitions that we've now found answers to.
9 JUDGE BLOCH:
So we're up to set three; is that 10 right?
11-MS. GARDE:
Yes.
12.
JUDGE BLOCH:
On these, we're at a little of a
()'
13 disadvantage because we read very rapidly about-the first 14-two-thirds of applicants' answer.
But we'll allow
-15 applicants just to take that into account and. answer it.
4 16 That's all.
17:
MR. GAD:
Your Honor, my apologios to the Board.
.18
-My instruction, I was not in the office.
19 JUDGE BLOCH:
Again, it's okay.
We didn't accuse 20 you of anything.
i:
21 MR. GAD:
But I worked so hard to get it to you 22 this morning.
t L
23 (Laughter.)
24 MS. GARDE:
Looking at CASE's motion to compel, 25 the. numbered interrogatories start on page 11:
i l
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1 Interrogatory No. 1 of set three:
request by 2~
name,, title-and organization the individuals who 3
participated in the-decision-to develop the CPRT.
4 The response given was:
Mr. Spence.
5 We objected because we're trying to determine who 6
participated in the decision, not just who had the ultimate 7
decision.
8 JUDGE BLOCH:
Could you tell us briefly what the 9
September 24th memorandum is about?
Does that help at all?
10 MS. GARDE:
I unfortunately don't have it.
I did 11 look at it when I was writing the motion to compel.
- 12 Mr.' Gad, correct me if you've got it with you.
j(f 13 The decision that puts in place the CPRT, it's a 14 policy memorandum.
It doesn't go into any of the background 15 or detail or basis.
It just announces its formation and 16 summarizes it.
-That's what my recollection of it is.
17 MR. GAD:
I'm sorry, your Honor.
18-JUDGE BLOCH:
Do you know that memorandum?
Was 19 it a memorandum that was produced?
We haven't seen it, so I 20 don't know if it's relevant or not to the decision we have 21 to make.
22 MR. GAD:
I'm afraid, your Honor, it's one of 23 thousands of documents that have been reviewed lately, and I 24 don't remember what's in it.
25 JUDGE BLOCH:
We'll assume right now it's ACE-FEDERAL REPORTERS, INC.
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irrelevant,-since no one knows its relevance.
2 MR. GAD:
We wouldn't have identified it if it 3
was irrelevant.
4.
JUDGE BLOCH:
Irrelevant to our determination.
5 (Laughter.)
6 JUDGE BLOCH:
Ms. Garde, why do you want this 7
information?
Be as explicit as you can.
8 MS. GARDE:
This program has had a storm and 9
lengthy birth process.
The decision to put a program into 10 place was based on very little inforr.ation that was known to 11 TUGCI management at the time.
That is, in early fall of 12
'84.
r-(),
13 Since then, it has changed dramatically.
What
-14 we're attempting to seek here is who are the participants in 15 the decision that a program of the magnitude that the CPRT 16 has become was required.
17 JUDGE BLOCH:
For tht purpose.
18 MS. GARDE:
We believe that the development, and 19 this really goes to the development of the CPRT issues, we 20 believe that the history and development of the CPRT from 21 the beginning, that is, what management believed was the 22 fault at the plant that required reinspection program, 23 whether the inspection program or what the CPRT is or has 24 become was only a response to the regulatory officials' 25 comments, whether it was an accurate look, or whether it was l-ACE-FEDERAL REPORTERS, INC.
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seeking a more detailed and accurate look at the site --
2-that is, the actual condition of the as built project --
3 that all of those things are relevant to our being able to 4
determine whether or not the plan as it now exists is 5
adequate to meet the needs both of the project and what 6
management was attempting to do with it.
7 JUDGE BLOCH:
I don't understand the argument.
81 Rather, I don't see the logic of it.
I think I do 9
understand.
I can see some reasons why the history and 10 development of the program might be relevant, but I don't 11 see that the one you've given is.
12 MS. GARDE:
In some ways, it's in the nature of
(_)
13 an admission.
14 JUDGE BLOCH:
But, suppose for the sake of 15 discussion, that the applicants were driven into making this 16 plan.
I don't understand why that would argue that it was 17 inadequate.
18 MR. ROISMAN:
The point is that that's only one 19 scenario.
I would agree with you, if they were driven into 20 it, what if it were the alternative?
What if the applicants 21 inside knew that they were in very, very deep trouble?
That 22 if the arguments made by Consolidated intervenors and the 23 CPA is right, that they said can we slip this one by?
And 24 when the TRT showed up, they said, my God, we've been
/'
s 25 caught.
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Their admission, their internal edmission that-
'2, they had"a very broad problem.
And then the development.of
'l
- J 3
a CPRT, which is very narrow-compared to the size of'that 4
problem, would go directly to the question whether the CPRT 5
is adequate'.
6 So one of the things we're trying to get at is:
7 To what extent did the applicants. acknowledge the 18 breadth of the problem as being broader than the breadth'of 9
the problem which they announced as justifying the limited 10
' scope.of the CPRT.
L 11 JUDGE BLOCH:
So, one purpose for the history is 12 to find the difference between the breadth of the problem
()J
- 13 and the breadth of the CPRT?
14 MR. ROISMAN:
Correct.
15 JUDGE BLOCH:
Are there any other purposes?
16 MR. ROISMAN:
Except to the extent that there may 17 also have been in the course of that discussion, and, l
18 obviously, without knowing it all, we can just speculate on 19 it, some discussion about what the breadth of a reinspection 20 program might have to be.
21 So, some internal perception that, given that 22 we've got this kind of problem, our opinion is this is the 23 way we have to solve it.
Then someone else comes along and 24 says we can't live with that solution.
We'll have to come O
25 up with a different solution.
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So that'goes not to the scope of the problem but 2
to the scope of the solution.
What we've got --
3 JUDGE BLOCH:
I think you just stated another 4
version of what you said the first. time, which is the 5
comparison of the breadth of the problem and the breadth of 6
the CPRT.
7 MR. ROISMAN:
That's right.
But, on the one 8
hand, I was looking at'what we thought may be admissions as 9
to what the breadth of the problem was.
And the other is 10 the-breadth of the solution.
11 12 0
13 14 15 16 17 18 19 20 21 22
(
23 24 25 t
1 t
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JUDGE BLOCH:
For that limited purpose, Mr. Gad, 2
is this an acceptable interrogatory to be answered for that 3
purpose?
4 MR. GAD:
I'm not entirely sure I heard it 5
significantly narrowed in terms of what the interrogatory 6
was, your Honor, as opposed to someone's statement of what 7
it's logical relevance is.
8 If I can respond to this, let me respond on two 9
planes, the general and the specific.
The assertion has 10 been made that this is logically relevant because it might 11 somehow assist us in deciding whether or not the breadth of 12 the CPRT investigations is broad enough.
I) 13 For that to be true, that breadth must be less 14 than 100 percent.
This is an argument that might perhaps 15 have had some viability in the days when the CPRT program 16 plan was limited to being responsive to external source
.17 issues.
18 It might perhaps be relevant if CPRT in some 19 other context were different than it is.
But, if you read 20 the document, the document says we are not limited to 21 external sources.
22 Now, we may do a good job or a bad job, but in 23 terms of the adequacy of the plan, it says we're not limited 24 to external sources.
f~))
(
25 So that argument simply loses the force of logic.
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JUDGE BLOCH:
Let me tell you the problem I have 2
with that.
We have the plant and I assume you have, in good 3
faith, attempted to design a program that will-handle a 4
hundred percent of the problems of the plant.
5 That's what you stated.
I believe you've done it 6
in good faith.
The problem is that another group of' people 7
can look at the same set of information and they define the 8
program a little differently.
9 If we actually had information about problems 10 that were seen in the plan, we'd have something to compare 11 the plan to, to see whether it actually covers a hundred 12 percent.
O) '
(,
13 MR. GAD:
Well, you know, one of the things I 14 told myself I wasn't going to do is to get up and revisit 15 this question of whether we should be on this exercise at 16 all.
17 JUDGE BLOCH:
Good.
18 MR. GAD:
So I'm constrained from responding the 19 way I'd like to.
But the fact of the matter if, your Honor, 20 that no set of hypothesized known problems or suspected 21 problems or feared problems can have any logical connection 22 to whether or not the program plan, which is a written 23 l document, is adequate to its task.
l 24 ll It was suggested that maybe somebody said in
\\
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historical times, well, we can't live with that, go cut it 2
down a little bit.
Or, paint it red, or do something.
3 So what?
As=ume it happened.
So what?
4 However many times that process went through, it 5
came out with a piece of paper.
Now, your Honor's decided 6
last August that this issue that we would take a look at 7
when we decide whether we are ever going to litigate it or 8
not, which I understand has been reserved to another day, 9
the issue we would take a look at is whether or not the 10 program plan, and I quote, "if implemented perfectly is 11 adequate to its task".
12 That means on the face of the document.
That's p) 13 what "if implemented perfectly" means.
The adequacy of this
(,
14 thing --
15 JUDGE BLOCH:
Incidentally, not only do I 16 disagree with that, but I wrote that I disagreed with that.
17 The intetpretation of the document could includo comething 18 about its history and something about its early 19 implementation.
20 We do that in all legal materials.
It doesn't 21 have to be on the face of the document.
It, nevertheless, 22 is about the meaning of the document.
23 MR. GAD:
That's not what I heard argued to you 24 this morning or this afternoon, your Honor.
25,
I ask you this.
Let us assume it's scenario one, i
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with the program plan in its current revision, was birthed.
2 in an hour by a genius and scenario two, it was birthed in 3'
an hour by a clutz who got lucky, and in scenario three, it 4
went through four revisions labeled rev. O, rev.
1, rev.
3,-
5 and a whole number of other scenarios, all of which by 6
diverse and unrelated means all gave rise to the same piece 7
of paper with the same words in it.
8 I trust your. Honor isn't suggesting that those 9
very same words could be adequate if that scenario was the 10.
clutz who got lucky, or. inadequate, I guess, and adequate if-11 we had a genius who birthed it in an hour, an'd who knows if 12 it took four revisions to get it?
()
13 JUDGE BLOCH:
The problem isn't at which point it 14 goes faster.
The question is whether there is information 15 in the history that might be relevant to our understanding 16 whether in fact you've covered 100 percent of what the 17 problem is.
18 In the process of developing a document like 19 this, there could be discussion.
There could be dissent.
20 And there could be issues that were discussed at one time 21 that somehow got forgotten.
22 MR. GAD:
I submit to your Honor that someone has 4
23 to hypothesize.
So what?
24 JUDGE BLOCH:
That's the purpose of discovery.
25 MR. GAD:
Let's assume we've got the Frumholtz ACE-FEDERAL REPORTERS, INC.
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system on the power plant and there is, in fact, a real 2
problem in the Frumholtz.
One guy knew about it, but it's 3
hard to pronouce.
4 And, therefore, it was forgotten about when we 5
scoped out the program plan.
How can that affect -- how 6
logically can that affect the adequacy -- and we're now 7
talking scope adequacy or breadth adequacy of revision 8
three, which essentially excludes nothing?
9 JUDGE BLOCH:
That's the problem.
That's what's 10 being litigated, as to whether it excludes something.
And 11 we'e seeking information about whether it excluded 12 something.
,m i,_)
13 MR. GAD:
The answer to that is in the words of 14 the plan, your Honor.
The answer to that is not in a 15 lengthy history of who first wrote and who second wrote and 16 who reviewed what the first guy wrote and whether or not Sam 17 saw it in the process.
18 JUDGE BLOCH:
Okay.
The problem for me is this.
19 You read the plan.
What you're trying to do is think of 20 loopholes.
What you're trying to see is if there are 21 l loopholes in the plan.
That's a creative process.
22 And you might think of them or not when you look 23 at the plan.
On the other hand, if there's a history in 24 which there were things that have been dropped all of a
(~)N
(_
25 l sudden, that comes into our creative process, that there's f
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something not being looked at.
2 And, frankly, I would think that the history of 3
how the plan was developed might be useful to understand 4
that.
5 MR. GAD:
You said.the history of things that 6
were dropped.
I didn't know whether you meant construction 7
inadequacies because --
8 JUDGE BLOCH:
I don't know what may have been 9
dropped.
In fact, after discovery is completed, it may_be 10 obvious that nothing was dropped.
11 MR. GAD:
I'm afraid I don't understand the term 12 that your Honor is using.
Something that is dropped.
()
13 JUDGE BLOCH:
Someone thought of something.
They 14 had a bright idea, and it was in a meeting.
And it was 15 discussed.
But, somehow it didn't get included in the CPRT 16 program.
17 Now, looking at the program, that might not occur 18 to me because it's a gap, it's a nothing when I look at the 19 plan.
20 But it's a problem of human set.
It's the same 21 thing that happens in the control room.
You're looking at 22 certain instruments and you don't think of the things that 23 are in that set in front of you.
Only about something else 24 that might have been in the history of the development of 25 the plan, and maybe not.
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l But, until we conduct discovery, I don't see how
~2 we'll know about that.
3 MR.. GAD:
Your Honor is recalling that all four 4
of the revisions have already been produced, that all of the 5
minutes of the SRT meetings have been produced.
6 And your Honor is suggesting that a list, that 7
somehow or other, we figure out all the individuals who 8
participated in the decision to develop, whatever that 9
means.
10 And we list Sam, Joe, Fred and Elmer, stop.
11 That's going to help that issue?
12 Your Honor, the logical connection escapes me.
I 13 JUDGE BLOCH:
The question is whether, if you get 14 that, the question Mr. Gad has asked, what do you get after 15 that?
16 If we really were going to get stuff that was 17 discussed, it would seem relevant, but are you just going to 18 get names?
13 MR. ROISMAN:
Obviously, what we've done is we've 20 tried to ask the interrogatories one at a time.
So we start l
21 with the names.
And then, if you go to interrogatory number 22 two, we get into the minutes of meetings.
I mean, it is a 23 total process.
It cannot be evaluated in that context all I
24 by itself.
The names are the first part.
25 JUDGE BLOCH:
What you really want is policy l
i l
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level discussions.
You don't want any time that two people 2
in the plant got together.
3 MR. ROISMAN:
That's correct.
But, again, we go 4
back.
I want to go back to it again, where you are back to 5
the question of trust.
6 When a lawyer writes a question like this, he 7
writes it to cover the universe.
Then he puts in the cover 8
letter, listen, if you don't understand something or if it 9
seems to you to be unreasonable, come and ask me.
And then 10 the other side will not pick up the telephone to ask you the 11 question.
12 And we come down here to do it.
If he wants to
()
13 narrow it down to a subset, but if I used the word " policy" 14 with him and a question, then what I'm going to get is his 15 definition of what a policy person is.
And he may drop out 16 of that Messrs. Grant and Tolson, whom I really want, and 17 other people.
I don't want to have to list all of them.
18 If I have a conversation with him on the phone or 19 exchange of words, we can, as gentlemen, reach an agreement 20 and decide what it's supposud to be.
21 So, yes, the scope of the question is broader 22 than a logical subset.
23 JUDGE BLOCH:
So, three and four, we're looking 24 at together.
A(-)
25 MR. ROISMAN:
Two, three and four.
I mean, the
(
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.whole set.
That's why they were done in sets, because we 2
thought that they captured certain things'.
3 But, also, it's going to keep coming up so we 4-should really deal with it here, this whole question of:
5 Is this plan the piece of paper, which, 6
incidentally, is not that.
No, is it this?
No one was able 7
to carry it in here, I guess.
You've got it.
All right.
8.
Okay.
9 The reason that Mr. Gad and I are disagreeing 10 about this is because what he calls 100 percent, we don't.
11 We don't think that a sample testing program --
4 l
12 JUDGE BLOCH:
Let's forget about that.
That's b
13 not relevant to this question.
14 MR. ROISMAN:
It's relevant in this sense.
There 15 are some things that they go out and look at directly.
16 Let's change Frumholtz to pressure vessel.
1 They don't go out and look at the pressure 17-l 18 vessels.
Not one of the ISAPs identify it.
The ISAPs are L
19 the category of things where there is an external source.
i 20 JUDGE BLOCH:
I do understand what you're j
21 saying.
If you know there's a problem, you might design 22 your sample in such a way that you may not be catching it.
23 MR. ROISMAN:
Conversely, if you know there's a 24 problem and nobody else knows there's a problem, you might t
/
25 decide that you don't have to look at that one at all.
1 1
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Then your sample seems to be a good sample
(
2 because you say, well, I looked at 57 problems seriously and 3
then I did the sample to the rest of the plant, and it would 4
be good enough.
5 Well, it wouldn't be good enough if there were 6
another 137 problems out there that you didn't look at.
But 7
there were no known external sources.
8 JUDGE BLOCH:
Okay, Mr. Gad.
9 MR. DIGNAN:
Your mike is open.
- And, 10 accoustically,.at least, I can hear the whispers.
I'm not 11 trying to listen.
12 MR. ROISMAN:
Okay.
We'll keep our pithy
()
13 comments to ourselves.
14 (Laughter.)
15 JUDGE BLOCH:
Thank you, Mr. Dignan.
16 MR. GAD:
I'm sorry, your Honor.
I didn't hear 17 the question.
L 18 JUDGE BLOCH:
Let's just address number one.
19 They are looking for information about this process of development for the purpose of seeing whether there are 20 j
I 21 issues that should be in the plan that aren't in the plan.
22 MR. GAD:
I don't know how to say it more bluntly 23 than I have, your Honor.
In order for that to have any 24 possibility of being logically connected to the adequacy of 3
v 25 the CPRT program plant, and I quote:
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"If implemented perfectly, somebody has to point 2
to some respect in which the plan..." and if we're talking 3
scope now or breadth in which it doesn't go far enough.
4 What somebody's trying to justify under this 5
rubrick are a series of research tasks.
No one's gone out 6
and done all of this.
Nobody cares.
7 None of the people who are concerned about the 8
adequacy of constructica, or the adequacy of design or, 9
frankly, the adequacy of the program plan documents are 10 going out and taking a look at this information.
11 So what the request before your Honors is that I
]
12 take some of those guys and stop what they're doing --
<~()
13 JUDGE BLOCH:
Now you've shifted it.
In fact, if 14 it's too difficult, the files aren't 17 reasonable form, 15 those are all things that you can be responding to us.
16 But, once we're at that stage, it's a different 17 kind of problem.
And it may be that some of the files are s
18 in pretty good form.
19 I mean, it may be that the company cared about 20 the process by which it developed the CPRT program, and it 21 kept it documented.
22 MR. GAD:
Nobody has gone out and looked at that 23 stuff, your Honor, so I cannot respond.
Whenever somebody 24 presses something to you of, let us say, the outer counties, 25 if not outer space relevance, the court should always take ACE-FEDERAL REPORTERS, INC.
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into account whether it's an easy thing to do or a difficult 2
thing to do.
3 And, in fact, if you go back and take a look at 4
some statistics on these interrogatories, you'll find that, 5
notwithstanding objections, every once in a while -- most of 6
the time -- we answered through the objections anyhow.
7 The only time that we plain said we ain't going 8
to do it is if there was an irrevokable principle involved, 9
or it was just a lot of work for no gain.
10 l I say again this particular document could be, 11 adequate or not, regardless of how it came to exist, all of 12 the prior drafts of the document are available in case (3) 13 anyone wants to do a comparison.
14 The comments received from the NRC are in the 15 public document room and have been widely distributed to 16 everybody.
17 The meetings of the SRT, and, remember, it's SRT 18 that publishes these things, are available.
So we're not 19 talking about an absolute blank wall, we're talking about 20 going out and sicking somebody whose got something better to 21 do to a task of identifying by name, title and organization 22 l every individual -- every individual -- who participated in 23 :
the decision to develop this thing.
Whatever that means.
f 24 !
That's number one.
O
's_/
25 i This is the one I had in mind earlier.
Finding i
i i
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all meetings in a former period at which the resp onse to the 2
September 18th letter might have been discussed, and then 3
information on those meetings, which, by the way, was 4
responded to in part.
5 Number three, a'l drafts of revision zero of the 6
plan.
Rescinding entirely from the relevance of revisiort 7
zero.
We've answered that one.
8 JUDGB BLOCH:
When you said you answered that 9
one, what do you mean?
10 MR. GAD:
We said we didn't have it.
E JUDGE BLOCH:
Okay.
Number four.
All right, 11 12 you're on describe in detailed process each step in the h
13 research in writing and editing and finalizing ured to 14 develop revision zero of the program plan.
15 i
I'm sorry.
I've been accused of being dense I
i 16 l every once in a while.
It doesn't happen very often, I 17 assure you.
But I fail to seek any logical connection i
l 18 l between that and whether or not the series of steps I
19 !
presently contained in the program plan are adequate to h
20 9l respond to contention five.
l 21 They either are adequate or not.
Perhaps it 22 takes expertise to see that.
I concede as much.
Perhaps it 23 may not be obvious on the face of the document.
I never 24 ;
suggested necessarily that it was.
l
?
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25 But you could put it to a jury of laymen that j
l l
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- l whatever it is, tre adequacy of that series of steps to w
2 respond to contention five, and I quote:
3 "If implemented perfectly, that adequacy is 4
either there or not and, frankly, it.doesn't. matter what the 5
process of the research and writing and editing and 6'
finalizing of a thricefold superseded draft was."
7 I forget how far we got to.
Did we.go to number 8
five?
9 JUDGE BLOCII:
Why don't we stop before CASE 10 number five.'
Stop at four.
11 (Pause.)
12 We will compel answers to one, two and four.
If (l
13 there's a problem of burdensomeness, the Board will be 14 available on a rapid basis to help to resolve the problems 15 of the burdensomeness.
16 But the purpose of the answer is to assist the 17 intervenors in being able to look at the history and 18 development of the plan, and to be able to see from the 19 actual discussions whether there were important issues that i
i 20 somehow aren't being adequately covered at this time.
21 22 23 24
()
25 j i
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MS. GARDE:
This question, in our view, is also 2
covered under the type of development arguments that we've 3
just engaged in. In responding to the questions you've just 4
ordered Applicants to answer, I think we will find this 5
information.
It is part of the process we are looking for.
6 It is dealing with the credibility question that we 7
discussed briefly before, and we do think that it is 8
relevant and will consider that the involvement of 9
Mr. Vega, Mr. Tolson, Mr. Brant, et cetera, in the CPRT, in 10 terms of a motion for summary judgment, but I think if the 11 answers 1, 2 and 4 are answered fully, that we will have the 12 information that we need.
()
13 JUDGE BLOCH:
So you don't need 5.
14 MS. GARDE:
No.
15 JUDGE BLOCH:
How about 7?
16 MS. GARDE:
The same goes for 7.
17 JUDGE BLOCH:
What's the next one you do need?
18 MS. GARDE:
If you'll give me just a minute, I 19 think it also includes 9, but I'd like to look 9 over.
20 (Pause.)
.s 21 We don't need 9.
This all assumes that we've got 22 full answers to 1, 2 and 4.
23 JUDGE BLOCH:
I understand.
24 MR. ROISMAN:
10 is in a different category.
l 25 I think the answer to this question, if given 1
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fully, will deal with the question that your Honor raised 2
earlier in the discussion.
3 Is the extent _of the CPSES project personnel 4
involvement in CPRT so pervasive, that it goes beyond the 5
question of the credibility of witnesses and gets to the 6
question of the acceptability of the plan?
7 I would say from what we have seen, there is a 8
substantial presence of some key personnel in what we would 9
call the CPRT. process, whose credibility has boon heavily 10 attacked and whose involvement in some of the very problems 11 that the CPRT is supposed to be getting at the root of, was 12 extensive back before here was a CPRT.
fm()
13 But the answer to this question will tell us 14 that, to get 5 out of 25, 100 people or something, it means 15
-nothing, and if you get a lot of them, you may remember in 16 some of the earlier iterations of the CPRT which have not 17 been withdrawn, work done under Rev 0 still remains work on 18 which the utility intends to rely.
They just start with new 19 work when they put Rev 1 in and then new work with Rev 2.
20 Some of that was originally done, as our example shows, by 21 Mr. Tolson, and he was involved in doing CPRT implementation 22 work.
23 JUDGE JORDAN:
That seems to me a little bit 24 contrary to what one of the Applicant's answers was.
It O)
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25 seems to me, you listed some 20 or 30 names, including ACE-FEDER.AL REPORTERS, INC.
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-involvement was.
I believe the Applicant answered in set 2,
~
3 the Applicant answered'that they were not involved at all in
.4 the CPRT.
5 Ut. ROISMAN:
The difference in_this question and 6
the earlier answer is -- the question was answered.irt the.
7 context of whether or not they were. classified by the-8:
Applicants on CPRT staf f, and this question to identifying 9
them by category of work and responsibility. So wh'at we're trying to do is cut through-what 11 may be a semantic disagreement down to what.we consider to 12 be the substantive issue.
There is a remaining dispute
()
13 here between us and'them, that the discovery is trying to 14 clarify, and that is how much of the really key judgments 15 that the CPRT has to make, are truly made by the independent 16 CPRT personnel and how many of them are really made by the 17 CPSES personnel.
18 JUDGE BLOCH:
Let me first ask Mr. Gad whether 19 it's true that some of the CPRT work is being done by 20 personnel that you don't consider to be CPRT personnel, but 21 CPSES personnel.
22 MR. GAD:
If CPRT needs a ladder to get to a
.23 scaffold 30 feet off the ground, they're going to ask
{
24 project to put up a ladder, if that's the way your Honor 25 uses the term " work," then my answers are twofold.
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First is yes.
The second is, it's identified in i2 each action plan..
3_
-The number two response, just a little more 4-general.
The judgments made, the assertion I just heard is, 5L we want to see where the deciding power is in.CPRT, and I'll
- 15 come back in a moment to whether or not that could ever be 7
re' levant to.the "if implemented perfectly" notion, but let's 8'
assume it is.
9 The interrogatories answers make it very clear, s
10 as does the program plan itself, that all judgments are made 11
.by the:SRT and by the review team leaders.
The review team 12 leaders decide what the results are.
They write.it up, they (n_)
13 present-it to SRT.
SRT cross-examines them and either I
14-agrees or disagrees.
It is the same as if -- excuse me?
15' JUDGE BLOCH:
I want to know about the watchman 16 on the beat.
I want to know if the person who collected the 4
'17 data could ever be CPSES rather than CPRT.
1-
!~
18 JUDGE JORDAN:
May I ask something here?
~
19 Part of the program plan includes project 20 personnel, when there's a deviation discovered by the CPRT, 21 this is referred to the project.
22 It's all up to the project then to decide how to 23 take care of this deviation.
It's also up to the project to' 24 write the letters to the NRC, which says, this has been 25 corrected.
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So that part of the program plan does include a 2
lot of operations by the project people.
3 MR. GAD:
May I take those twos in order, your 4-Honor?
'5 The watchman on the beat.
Assuming you mean the 6
inspector who goes out and does each of the hardware 7
inspections for Action Plan 7-C or another one of the 8
hardware inspections.
These are all CPRT person.
In fact, 9
I believe that virtually all of them are employed by Energy 10 Evaluation Research Corporation, ERC.
11 I think that resp'onds to the watchman on the 12 beat.
()
'13 Judge Jordan, I respectfully disagree with your 14 characterization here., the holder of the construction 15 permit is the Applicants.
Therefore,.as a matter of federal 16 law, when a nonconformance comes tio their attention by 17 whatever means, including, because CPRT said, " Hey, we found 18 one, or maybe we found one," as a matter of federal law, the 19 project qua project processes it.
They cut in NRC, they 20 decide if it's valid, invalid, how it should be 21 dispositioned, whether or not it requires an engineering 22 analysis, and the whole nine yards.
23 That is all quite. independent of the CPRT 24 judgment-making process.
It happens.
It happens, because 25 it's a good idea.
It happens because it's federal law, and ACE-FEDERAL REPORTERS, INC.
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1 it happens because it_is a good idea to do what the federal 2
law requires.
3 But CPRT could function, if that never did 4
-happen.
5 When deviations are discovered, and again, we wil 6
take 7-C as the model, but all of the hardware action plans 7
are similar.
When a deviation has been discoverd and 8
confirmed by.CPRT, Mr. Hansel's group, to be valid, it is n
9 then reviewed-for safety significance by SSEG, Mr. Hansel's i
10 group within CPRT for safety significance.
11 If the answer is yes, it gets treated one way by 12 Mr. Hansel's group.
rm fqj 13 HIf the answer is no, then it goes down for 14 processing as a trend by Mr. Hansel's group.
15 The result of all of this will be results 16 reports, actually population reports, which are constituents 17 of results reports in the 7-C context, written by Mr. Hansel 18 and that on some glorious day in the not-to-distant future, 19 Mr. Hansel will present this to SRT and defend it to them, 20 and if, in fact, he is successful in defending it to them, 21 it will be issued by SRT.
And everything I've just 22 described is within the scope of CPRT.
And the judgments 23 that are made do not depend, that is to say, there is no 24 link in the chain in which the CPRT handling of something,
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25 or its conclusion about whether or not something is good t
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or bad, is dependent upon it, must yield to it, anything 2
.that happened over in the NCR process.
3 So I respectfully suggest, your Honor, that if 4
you go back and take a look at that pleading again, you will 5
see that both of those two things happened 6
independently.
CPRT cannot process NCRs.
They are not the 7
licensee.
8 JUDGE JORDAN:
It is up to the project to do the 9
NCRs.
10 MR. GAD:
But that processing of NRCs has nothing 11 to do with CPRT decisionmaking.
12 JUDGE JORDAN:
That's right, but that processing A
. 'q,/
l'3 of NCRs has to do with whether the plant, as-built, is going 14 to be licensable.
15 JUDGE BLOCH:
I think we are going to get to that 16 in a later question.
17 As I read this question, the question is, 18 identify all CPSES project personnel involved in the CPRT.
19 If I heard your answer right, to me, there are 20 none.
21 MR. GAD:
Again.
No, if you take a look at an 22 action plan, it says we are going to need scaffolding.
The 23 j project does that.
We are going to need someone to bring us 24 drawings.
If it's one of the drawing action plans, project 25 is going to find that.
We are going to need a list of ACE-FEDERAL REPORTERS, INC.
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all of the'so-called " critical circuits," which is a 2
technical term.
The project is going to supply the list.
3 But the project support CPRT in any number of
-4
. activities, and the trouble with an interrogatory like this, 5
your Honor, proceeding entirely from the fact that you're 6'
interpreting it as of today, not as of 0 time, and I suspect 7
the case would stand up and say, whoa, whoa, whoa.
8 That's not what we meant, but the problem with an 9
interrogatory like this is defining what work meant.
10 If I had to respond to this interrogatory, I 11 would get out each action plan, and I would figure out each 12 thing the project does, because we can't work without the A(,)
13 scaffolding.
14 JUDGE BLOCH:
You have said that there are no 15 CPSES personnel making decisions that relate to the 16 findings.
17 MR. GAD:
That is correct, your Honor.
I say 18 that, maybe yes, maybe no.
Maybe I know what I'm 19 talking about.
The program plans.
20 JUDGE JORDAN:
The CPSES personnel are involved 21 in some aspects of the results reports, and they are 22 identified in the results reports themselves; is that not 23 correct?
24 MR. GAD:
They are identified in the results O(_/
25 report, wherever the project supported the activity, and I ACE-FEDERAL REPORTERS, INC.
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think, you know, again, my memory isn't all that good, but I i
2 think it comes down to erecting the scaffold.
3 JUDGE BLOCH:
And they also would be identified 4
among the 14 questions, as I recall, too.
We asked for any 5
conflicts of interest in making judgments.
6 MR. GAD:
I think that's correct, though.
We 7
didn't answer those with the scaffolding in mind.
8 JUDGE BLOCH:
We will not compel this one.
9 MR. ROISMAN:
Could we anuwer this, Mr. Chairman, 10 because I don't think the answer Mr. Gad gave is quite the 11 whole story.
12 JUDGE BLOCH:
Okay.
Good.
)
13 MR. ROISMAN:
First of all, this is really an 14 Alice in Wonderland concept.
What he's told you, what he'd 15 like us all to believe, is that the CPRT could issue a 16 report that said, there are 5000 safety significant 17 deficiencies at this plant and that Mr. Brant could decide 18 to not issue an NCR on any of them, because he makes the 19 independent judgment for the project.
20 I submit that that is not the real world.
Mr 21 Brant, for instance, approved the procedures for processing 22 l CPRT deviation reports and out of scope observations.
This 23 l was in 1986, when he did that.
That is the point of the 24 interface between the plant and the CPRT.
r K_-)
I 25 i JUDGE BLOCH:
Would you say that again, please?
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I don't think I heard that one right.
-(
v 2
MR. ROISMAN:
In 1986, a procedure CPQP 16.3, Rev
.3
-3, indicates -- which is entitled." Processing CPRT Deviaiton
.4 Reports /Out of Scope Observations," was prepared by a Doug 5
Shelton and approved by C. T. Brant~and also approved by 6-Phillip.Halsted, and they all have their signatures in 7-February of '86 on this document.
8 That process of what you-do with the CPRT 9
deviation report and out of scope observations, that's the 10 point of 'interf ace between -- and gets to what Dr. Jordan is 11 talking.about.
It is where what's important here takes
~12
' place.
That is, where something the CPRT finds either gets
(
13
' integrated into or not integrated into the plan.
14 JUDGE BLOCH:
Don't you cover an interface in a i
15' different part of the interrogatories?
This is not where 16 you're covering that, is it?
4 17 MR. ROISMAN:
We tried to cover it.
I mean, it's 18 like those games at the. fair, you know.
You've got five e
19 little circles, and you have to completely cover the white 20 dot with them in order to win the money.
The circles 21 sometimes have to overlap, but we think we need all the 22 answers.
23 If the Board thinks that knowing the answer to 24 that question is important, then we should be allowed to get
()
25 the answer to this question and the others, and then you 4
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should say to us, but the scope of the total of what you're s
2 going to get has to be limited, because we're concerned 3
about this or that.
'g 4
The point is that it's not irrelevant.
The point 5
of this interface and what's going on there, it's one 6
reason why we've done the probing that we'd done.
7 When Mr. Brant walks into someone's office, as he 8
has done on other occasions in other people's offices and 9
says "This is not a safety significant problem" and goes 10
.through one of his explanations for why he thinks it's not 11 safety significant.
Until Ms. Garde has a chance to 12 cross-examine him, even the SRT, as smart as they are, might n
(,)
13 be followed.
14 We are trying to find out how much of that is 15 going on, who's doing it, what controls exist, and this plan 16 does not say that as well as Mr. Gad has said it or as 17 clearly.
That is why, when he makes these arguments to you, 18 he makes them from the best of his recollection and without 19 referencing you to the document, because it isn't there, and 20 when he gives it to you, it is not testimony, and when 21 someone answers that interrogatory, it is, and we can use it 22 in our motions for summary disposition.
We can't use his 23 statement here on the record for that.
24 l
That's why we asked for them to answer them, not
-o
\\/
25 Mr. Gad to answer them.
[
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JUDGE BLOCH:
Mr. Gad, a brief comment?
2 MR. GAD:
Your Honor, just so the Board isn't 31 misled, perhaps the Board might ask CASE if it would tender 4
up to the Board this procedure that was just waved in front 5
of you, because I am not certain, but I don't want this 6
Board to go away with the impression that that procedure had 7
' anything to do with the CPRT program plan, how it functions 8
or what decisions are made.
That procedure is a project 9
procedure for responding'to what the project regards as an 10 outside source.
That procedure might set processing of 11 comments fror 'he bench in the Atomic Safety and Licensing 12 Board hearings, but its existence or who's doing.it would
[ s) 13 indicate absolutely nothing about the quality of s
14 decisionmaking from the bench.
15 Now we are not talking here about how well the t
16 CPSES project processes NCRs.
17 That may be part of the merits when we get to 18 this case.
19 The issue is supposed to be whether or not the 20 CPRT program plan, if implemented perfectly, is adequate to 4
21 its task.
22 Frankly, your Honors, it doesn't matter who's 23 doing the implementing, and this notion of credibility is 24 functionally irrelevant to the issue thus stated, and each 25 time I say, if implemented perfectly, I'm quoting somebody 26 else's term as to what this issue is all about.
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~ If implemented perfectly necessarily means that 2
the people are going to do their jobs that are in the list 3
of tasks in the program plan, so the whole issue is 4
irrevocably irrelevant.
-5 It could not affect any judgment about whether.or 6
not the written plan is adequate.
But I don't want your 7
Honors to be misled about this procedure, that case just 8
waved in front of you.
That procedure does not indicate 9
anything different from what I told you, and it is entirely 10 outside of CPRT, as will be clear when you take a look at 11 it.
Excuse me.
12 (Pause.)
()-
13 JUDGE BLOCH:
We're going to reserve that one.
14 The only question we have in terms of perfect implementation 15 is, if something were systematic and pervasive, we would see 4
16 that as a problem with the adequacy of the plan.
17 So why don't we just reserve this to see what 18 else is going to be learned about the interface between the 19 CPRT and CPSES?
20 Let's go on to the next one, eleven.
21 MS. GARDE:
Your Honor, based on your ruling on 22 one, two and four, as well as the discussion on 23 instructions, we can drop both 11 and 12.
24 JUDGE BLOCH:
Okay.
25 MS. GARDE:
The next one is interrogatory number ACE-FEDERAL REPORTERS, INC.
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-16, where CASE seeks to find out, actually seeks to develop 2
a phrase from the CTRT, which allowed for circumstances when 3
it would not be possible to investigate and determine the 4
root cause of found safety-significant deficiencies.
5
-That was a potential that was referenced in the 6
plan itself.
We are attempting to determine when that would 7
be possible.
8 The answer provided by applicant is, as we state 9
in our motion to compel, really a nonanswer because it just 10 goes back to the statement that the question was based on in 11 the first place.
12 I think the crux of our argument is on the bottom
(')
13 of our page 20.
We say that we are seeking to determine 14 from the people who wrote that statement, not from the 15
-lawyers at oral argument, what are the circumstances they 16 had in mind.
17 JUDGE BLOCH:
The answer says the SRT had no 18
-particular scenario in mind.
What are the people you're 19 talking about?
20 MS. GARDE:
Whoever wrote that statement.
21 JUDGE BLOCH:
That particular section?
22 MS. GARDE:
Yes.
23 JUDGE BLOCil:
Okay.
So the question boils down 24 to asking for the person or group that wrote that particular 25 sentence to respond to whether there were circumstances in ACE-FEDERAL REPORTERS, INC.
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their mind.
i 2
MR. GAD:
That's how we interpreted the question, 3
your Honor.
That's how it was answered.
4 JUDGE BLOCH:
So, in other words, this section 5
was written by one or more people on the SRT.
And, as far 6
as you know, it wasn't written by other people and then just 7
approved by them.
8 MR. GAD:
The answer to that is yes, in the same 9
sense in which a law' clerk might come to your Honor with 10 proposed research or pieces of a memo.
And once your Honor 11 is persuaded you might use it, the entire program plan is 12 the statement on the SRT.
[I 13 Now, we interpreted the question as calling for s.)
14 two things.
One, the in proces.
I gather that's no longer 15 pressed.
The second is the historical thing.
16 When you publish those words and when, as your 17 words, you published them, what specifically did you have in 18 mind?
It's a perfectly fair question and that's why it was 19 answered.
20 And if there were something in particular in mind 21 which shows up again here, a similar question is asked in t
22 another set of interrogatories and something was concrete in 23 mind.
And it's been answered.
A perfectly fait question.
24 But it's been answered.
There's no other answer that could 25 be given.
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JUDGE BLOCH:
Now, we asked previously that 2
you're going to have to disclose, if there was some history 3
that led up to the development of discussions or meetings to 4
discuss the development of this particular section.
So I 5
assume that's going to come out there; I don't see why we 6
need more.
7 MR. ROISMAN:
That's possible, but I think this 8
point is illustrative of something that's worth pointing out 9
and why we think the answer is important.
10 What we're told is that the phrase means 11 nothing.
That is, it didn't have any special meaning.
- Yet, 12 it is a significant hole in the CPRT.
13 When we say " perfectly implemented", we then mean
,w- -
14 that this is potentially a place at which the applicant 15 could drive the whole plant through.
For instance, they 16 could decide to look at the U-bolts on unit two because they
_17 decided, for reasons that have no objective criteria, that 18 the U-bolts on unit one were not, quote, " accessible",
19 impossible to access.
20 They don't tell us what " impossible" means.
In 21 other words, they've built a loophole in there.
We're 22 willing to accept an answer that says the loophole remains 23 and we define it as we go along.
24 But, then, what " perfect implementation" means is O
'\\_/
25 the perfect capacity to drive through that loophole anything ACE-FEDERAL REPORTERS, INC.
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the SRT wants to that finds it convenient to, which means is 2
the root cause investigations could be foreshortened at any 3
point.
4 This word " impossible" has got an always 5
unlimited meaning.
And we gave them an opportunity.
We 6
just want to be sure that they understand and you understand 7
what we think it means, and have that answer.
8 JUDGE BLOCH:
But those discussions are going to 9
be published and available to read.
I don't understand what 10 you mean that they could be foreshortened at any time.
11 MR. ROISMAN:
What I mean is that they are 12 capable in this context to say that it is not possible to O()
13 investigate or determine the root cause.
We're now looking 14 at, and Mr. Gad keeps reminding us that we're looking here
-15 not at implementation, but at the plan.
16 It's a plan that says in effect we will not do an 17 investigation and determination of the root cause when it's 18 not possible.
And we will define what "not possible" is.
19 We don't have some criterion in mind.
20 It doesn't mean physically incapable of finding.
21 It could mean expensive.
It could mean a bother.
It could 22 mean take the paint off to look at a weld and, therefore, 23 we're not going to look for root cause.
24 It could mean it's not possible for us to swallow 25 that.
I think Mr. Hansel on many occasions has said he Aue-FEDERAL REPORTERS, INC.
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(_f DAV/bc-1 can't get his arms around something. -And he means not 2
possible.
3 Those voices in the CPRT --
4 JUDGE BLOCH:
But you're going to get the history 5
of the development and early implementation.
What really do 6
you want more than that?
He said that the people who wrote 7
it don't have anything in mind.
8 MR. ROISMAN:
But I want to be clear that we're 9
now proceeding on a path here in which he and we are coming 10 up with markedly different ideas of what perfect 11 implementation means, or that it's totally beneign to say, 12 as they do in this case, that they had no particular
()
13 scenarion in mind; which means we have no criteria to govern 14 this decision by if and when we have occasion to make it.
15 JUDGE BLOCH:
It might be helpful for me to say 16 just a little bit about the purpose of what we're doing.
I 17 see the purpose of what we're doing as identifying any major 18 deficiencies in this plan so that we would say that the plan 19 would have to have X or Y component.in order to be adequate, 20 in which case, the applicants could choose to implement that 21 or not.
22 And possibly whether there's something so 23 defective in the whole thing that it can't be remedied.
I 24 really don't see that you need anything extra here about 25 that that you aren't going to get from what we already ACE-FEDERAL REPORTERS, INC.
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ordered.
2 Am I'right about that?
Are you going to get 3
anything extra on this question that relates.to the subject
~4 being litigated.
5 MR. ROISMAN:
I think you're right.
I was making 6
my statement not-to say to you please order them to answer 7
it, but rather to make sure that there wasn't some 8
miscommunication about what we thought this answer means.
9 I don't think that when they answered one, two 10 and four, they're likely to answer as to the level of 11 detail, to tell us the meaning of individual phrases.
12 So, in a literal sense, we probably won't get
()
13 exactly that.
But I do"think the answer they gave us is 14:
fine as long as no one misunderstands.
I don't want to have 15 someone be suddenly surprised.
We think it's a very 16 important - thing to say that a loophole that's built into the 17 plan does not have a set of criteria for its application.
18 So we read that answer that way.
If somebody 19 else in this room whose got a microphone in front of them 20 doesn't road the answer that way, then we're not necessarily 21 satisfied with the answer we got.
22 (Pause.)
23 JUDGE BLOCH:
We will not compel the answer to 24 this question.
Mr. Roisman, the next question.
((~}
25 I'm sorry.
When we say we will not compel the l
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-1 answer, we will-not compel any further answer.
2 MS. GARDE:
Interrogatory 31 requests information 3
regarding changes to the CPRT or revisions.
The answer 4
~ indicated that there was a revision four of the program 5
plan, which was expected to be out by the end of the year.
6 We asked, as I think the Board has recognized, 7
that they inquire as to what the status of revision four 8
was.
9 An inquiry to the staff indicated that the staff 10 was not aware of the existence of an impending revision four 11 also.
12 We don't know anything more about revision four,
()
13 but this is the type of thing that our instruction sought to 14 preclude, that is, a lot of effort going into analysis of a 15 document which is becoming moot as we discuss it.
16 We haven't heard anything further from applicants 17 on revision four.
18 JUDGE BLOCH:
We're going to ask them about that J
19 but it seems to me that it is implicit in what we're doing 20 that they retain flexibility to be changing the plan.
I 21 don't see any way of stopping them from doing that.
22 The question is whether what they're doing is 23 going to demonstrate the adequacy of the plan.
There may be 24 things that they're not going to change.
You may be able to On
\\/
25 document things that they're just set on.
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only way I could see that you could demonstrate the 2
inadequacy of the plan.
3 The plan means -- it's what we said in our 4
order -.the plan means certain things at this time.
You're 5
going to have to demonstrate inadequacy.
Their response may 6
be that's flexible, we' re going to do something about that.
7 I don' t see any reason to stop them from doing that.
m 8
MS. GARDE:
I agree.
I understand that the plan 9
is a dynamic document.
The problem that I had is that it 10 took an interrogatory to get the identification of a 11 revision, which, I think, if we were cooperating on a more 12 open and honest basis, would be something that I would think
{}
13 they would have notified us:
We're going to write a new 14 Appendix F or G or R.
15 So to the extent that you're working on your 16 motion for summary judgment and it includes that, don' t 17 spend the next two weeks of your life writing that.
18 That's the type of update that I'm expectino to 19 get from applicant.
And I think reasonably so by the 20 instructions that we put forth.
21 JUDGE BLOCH:
So where is rev. four?
And is 22 there some increased room for informing CASE so that they 1
23 will know about big developments?
()
24 MR. GAD:
I'm not prepared to discuss what might 25 be in revision four, hell, back up a second.
I said last ACE-FEDERAL REPORTERS, INC.
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August.
2 JUDGE BLOCH:
I don't want you to do that.
Is it 3
coming and when?
4 MR. GAD:
Nobody knows, your Honor, because 5
things haven't been decided yet, which is one of the reasons 6
why I'm not prepared to discuss it.
7 Then you have to figure out the extent to which 8
changes in the program plan are dictated by what you decide 9
to do.
10 Your Honor called me last week on the telephone.
11 And the way you put the question was:
Could I give you any 12 information about when and what?
And I answered you:
No, I
,a
(,j 13 can't.
14 JUDGC BLOCH:
That's still true?
15 MR. GAD:
That's still true.
16 However, this notion that it's a great big 17 surprise, I reject.
18 (Pause.)
19 JUDGE BLOCH:
Am I correct in assuming at the l
20 l present time that the CPRT is working under rev. three, that 21 l you haven't made amendments to rev. three, that they're 22 f working under?
23 l MR. GAD:
I'm not sure that is correct.
24 l JUDGE BLOCH:
So what can we do to let CASE know A(-)
25 the current status of what's being implemented?
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MR. GAD:
In process?
I don't think you can do 2
anything.
3 JUDGE BLOCH:
What's being implemented, not 4
what's being developed for rev. four, but what's actually 5
being used in the field for implementing rev. three?
6 MR. GAD:
CASE already has, your Honors, all of 7
the so-called procedures, things we call CPPs or DAPs.
And 8
my understanding is that they get changes to those on a more 9
or less current basis.
My understanding is that CASE gets 10 them before I get them, which kind of bounds more or less 11 current.
12 JUDGE BLOCH:
If there were amendments to the
()
13 plan, they would somehow be getting that through that 14 process?
15 MR. GAD:
They might be getting the substance of 16 the change without necessarily knowing that words had been 17 changed in the program plan.
To some extent, the program 18 plan or action plan or other specific appendicos are changed 19 in a responsive fashion.
20 l That is to say, someone decides you should start 21 ll doing something.
They, therefore, request permission to do 22 it.
They get their permission.
23 l Somebody decides you need a change in the program 24 !
plan.
They request changes in the program plan.
And when
(~'/
)
25 ;
enough of thcoe have accumulated, there is a new draft.
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~ CASE is also aware --
11 JUDGE. BLOCH :-
But the thing, their changing the 23 program plan would presumably highlight things of importance 4
as opposed to changes in the proceduren.
t5
.Have you tried to keep the more important items 6
in tha program plan?
7 MR. GAD:
I'm not sure I wholly agree with that, 1
8 your Honor.
The bulk of the program plan is how we're going t
9.
to get there.
The program plans, statement of what our goal i
10 is, is rather simple and rather straightforward.
And I
- 11 would have thought rather hard to challenge.
12 JUDGE BLOCH:
You must have multiple copies of
()'
13 updated program plans.
14 MR. GAD:
No, your Honor.
15 JUDGE BLOCH:
You don't?
16 MR. GAD:
Correct.
The last one outstanding is i
17 rev. three.
But when a new one is issued, it will be called 18 rev. four.
It's a little bit like this CFR book, but that 19 doesn't mean that particular sections in it may not have to l
20 come superseded prior to the time there's enough changes to 21 publish a new version.
22 That's the reason why I gave you the negative on i
l 23 your blanket request for assurance.
I 24 JUDGE BLOCH:
What concerns me is that there 7
25 could be important changes in areas such as root cause or ACE-FEDERAL REPORTERS, INC.
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sampling, which are of great importance to CASE.
And I'm 2
not sure what guidelines you're using as to what you would
-3 give-them current information on with respect to changes in 4
the plan.
f 5
Can we be assured'that any important change in 6
the plan, they're going to get?
7 MR. GAD:
I don't know how your Honors would 8
define "important", and I certainly don't know how CASE i
9 would define "important".
Therefore, it would be very 10 difficult to give that assurance.
11 It would be difficult for another reason.
I'm 3.
.12 going to get really close to violating the precept I
()
13 announced at the outset, but one of the things that I argued 14 to your Honors way back in August was this:
15 This is a statement of what we are going to do.
16 It is happenstantial that it's been published all over the 17 world.
Most of the time when you have this kind of 18 exercise, nobody knows what your game plan is until you're 19 finished and you write your testimony.
20 Then they see the testimony.
Then you test the 21 adequacy of the methodology to the extent that methodology i
i 22 survives to results.
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I think the example I used was sample expansion.
2 The program contains a number of means of sample expansion, 3
if you get one hit in your first strata, and we have 4
division expansion and strata expansion, all those things.
5 But it would be completely irrelevant, a complete 6
waste of time to worry about the theoretical adequacy of 7
that part of the program as applied to Action Plan 1(a)(4) 8 because it didn't expand.
9 And another one over here that I happen to know 10 about, instead of expanding as in the program plan, they 11 elected to go directly to 100 percent.
We found one on the 12 sampling, so we are going to do it 100 percent.
()
13 Now, if you litigate theoretical adequacy today, 14 goodness knows what we are going to go through, and it might 15 all have nothing to do with the merits.
16 At the same time I said to your lionors the 17 program plan, this thing that people happen to know about 18 but most of the time they don't, is a continuously evolving 19 document.
20 JUDGE BLOCil:
You know the Board's view of this 21 l issue that we are discussing at some longth?
l 22 l MR. GAD:
I know the Board has published thoughts 23 j on the matter, but if wo are talking about specific i
24l interrogatorios, the Board said you ato not ruling.
I')
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25 {
JUDGE BLOCll:
The thought which wo repeated 4
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today, which is that we are going to attempt to litigate 2
what the plan says, including its history and its early 3
history and its development, then we are going to see 4
whether the Applicants respond by saying that the portions 5
that seem to be deficient will be changed.
That is the way 6
we aro going to do it.
7 Now, the problem is that what you are talking 8
about is something that is currently affecting the way the 9
plan is being implomonted.
Therefore, there is importance 10 to letting CASE know what has already boon changed so they 11 don't go to the trouble of litigating deficiencies that you 12 have already plugged.
o l
(_)
13 MR. GAD:
If your lionor please, until either a 14 revision to an action plan or to an appendix or to the 15 so-called mother plan itself has boon approved by the SRT or 16 until a results report has boon published, then this process 17 of evolving that document is in process.
It hasn't boon 18 signed off on, and thoro is no means for people to know that l
l 19 this is what wo have in mind for tomorrow until tomorrow i
20,
comes.
l 21 l It is a continuously evolving process.
22 I JUDGE BLOCll So no changes in 3 havo boon 23,
approved by tho SRT; is that truo?
{
24 j MR. GAD:
Yos.
There has boon no Revision 4 yet I'
! ( -)
i l
25 approved.
It would have to be called Rovision 4.
Wo don't 1
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have 3A's or 3B's.
2 JUDGE BLOCH:
So if they took.one section and that 'ould be called Revision 3
changed it, just a paragraph, w
4 4?
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?
5 MR. GAD:
The whole thing-woulo be republished, 6
your Honor, as Revision-4.
7 JUDGE BLOCH:
Even if they just changed one 8
paragraph?
r 9
MR. GAD:
That is correct.
10 JUDGE BLOCil:
As of this moment, you are telling 11 me that there have not been approved changes in Rev 3?
12 MR. GAD:
Rev 4 has not been published.
()
13 JUDGE BLOCil But there is another way that could 14 happen.
That is that there are paragraphs presented to 15 SRT.
They act on them, and they accumulate them before they 16 publish them?
17 MR. GAD:
Precisely.
18 JUDGE BLOCII:
I want to know if any have been 19 approved.
i 20 MR.' GAD:
I don't know, but they might have.
21 JUDGE BLOCll That is what I would like CASE to l
[
22 '
be able to have.
23 MR. GAD:
That approval is not final, your 24 lionor.
It remains in process until Rev 4 has been 25 published.
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' JUDGE BLOCH:
I understand-that, but'the current 2
information is what they have' approved, and it seems'to me 3
only fair'that they have the current info,rmation about what 4
is approved now.
I 5
MR'. GAD:
If that is what approved means, then 6'
they are not approved, your Honor.
7 JUDGE BLOCH:
If approved means that they get the 1
8 information, they are not approved?
9 MR. GAD:
Approved means in fact I can't take it 10 back before the rest of the world sees it.
That is right.
t 11 That is what approved means.
12 MR. ROISMAN:
Your Honor, may I suggest a 13 solution?
14 I understand Mr. Gad's dilemma, although I didn't 15 understand if procedures were being changed and the plan 16 wasn't being changed, what the implications of that were.
17 Why don't we simply implement it at this point, a hiatus in 18 the CP,RT adequacy discovery process, and start at this date 19 as soon as Rev 4 is published?
20 JUDGE BLOCil:
I am not sure that will help you at t
21 all because as soon as that happens they start on Rev 5.
22 MR. GAD:
Ono hopes that one converges upon 23 perfection if wo are not already there, your lionor.
24 MR. ROISMAN:
I think there is somothing to be i
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at the' time of Rev 4, like from Mr. Counsel, who is sort of
(
2 the boss man here, where we are headed.
3 As you might expect, at this point in time rumors 4
continue to swirl around about whether Rev 3 has got a 5
single paragraph potential change or many paragraphs of 6
procedure changes and the like, but we are here at sort of s
7 the eleventh hour of this discovery process.
8 If I understand the proper application of the 9
Commission's regulations on instructions, the utility will 10 nave a duty at the time that Rev 4 comes out to relate back 11
- changes in Rev 4 to answers to previous questions.
Just 12 giving us Rev 4 and saying that is it is not enough.
They
()
13 have to put it into the context of our answers.
14 That will then give us very importance guidance, 15 and then we can start the clock running again there.
16 our dilemma, if you will, is a somewhat 17 self-imposed dilemma because we said, look, we will do this i
18 process.
When we did it, we did not believe there was going 19 to be a major revision, that we were really looking at Rev 20 3.
21 We now know that there is going to be something 22 that is major enough that it is going to be called another 23 rev.
That might allow Mr. Gad out of the dilemma of not 24 wanting to have the SRT publish something that it would like 25 to change and then feeling like it is locked in in some way, ACE-FEDERAL REPORTERS, INC.
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although we would have access to the drafts under 2
discovery.
3 JUDGE BLOCH:
Mr. Gad, is this at all. helpful?
4 MR. GAD:
The answer to that is "yes."
If we are 5
talking about the suspension, at least pro tem, I guess'the 6
answer is necessarily "yes."
7 Of course, we won't be talking about Rev 4 in
'8 futuro after it has been published, and I would like to 9
think, as I say, that we do converge upon perfection.
But 10 if we don't converge upon perfection, we do converge upon 11 completion.
12 The argument I made to you last time was it is
()
13 not over with till it is over with, and I was accused of 14 quoting Casey Stengel without attribution, a sin I just 15 fixed up.
But it is still true.
16 JUDGE BLOCH:
I am concerned about waiting for 17 Rev 4 because it is going to delay things.
18 MR. ROISMAN:
I am concerned that it is Yogi 19 Berra, not Casey Stengel.
20 (Laughter.)
21 '
JUDGE JORDAN:
I don't necessarily see why it 22 would delay things.
CASE will write summary dispositions on 23 the basis of the best information that they have.
You will 24 keep them informed, however.
As the revision comes out, you 25 will tell them what is changed in the answers which you have ACE-FEDERAL REPORTERS, INC.
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already given with respect to Rev 3.
2 MR. GAD:
I am sorry.
If I may, I thought we 3
were talking about a hiatus, which meant that we just 4
stopped.
5 JUDGE JORDAN:
I am saying that I don't see 6
necessarily it would be a hiatus if CASE continues to 7
operate on the basis of Rev 3 and you inform CASE on the 8
basis of continuing information.
On the questions that you 9
have already replied to, the interrogatories, you tell them 10 what has been changed when Rev 4 comes out.
It is your duty 11 to do that.
12 MR. gad:
Putting aside, your Honor, whether that I) 13 is a correct interpretation of 26(e), the changes between t'
14 Rev 3 and Rev 4, compare the two pieces of paper or look at 15 the rev marks.
16 I thought the issue before the house was whether 17 or not I thought a suspension until Rev 4 came out would 18 help me.
For the reasons I said, I think it would.
19 I do not necessarily agree, your Honor, that it 20 ultimately delays things because for each portion of the 21 program plan the latest time that you can be prepared to 22 debate the methodology that gave rise to that completed 23 portion is when it has been completed.
24 JUDGE BLOCH:
Here is the problem.
Once we I^T
(_./
25 complete this portion of the proceeding we may decide that ACE-FEDERAL REPORTERS, INC.
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we don't need to have a hearing on it.
We may decide that.
~ f we decide-that we are not going to have a hearing, we are 2
I 3
going to start litigating any specific issues having to do 4'
with the completed program plans, just put off starting to
~5 litigate specific issues from completed ISAPs.
To stop 6
would delay.the program, or it might, dependingaon what 7
happens.
8 MR. GAD:
I am sorry, your Honor.
I am going to 9
ask that wo take a recess for a couple of minutes, but did I 10 just hear your Honor say that the Board has imposed a 11 prohibition on disposing of any completed CRT results until 12 after we haye had this process on theoretical
= !,,)
13' pre-implerdntation?
14 JUDGE BLOCH:
That was our order.
It was very 15 clear.
16 MR. GAD:
That was your order last August, your 17 Honor?
.18 JUDGE BLOCH:
Yes.
19 MR. GAD:
I wonder if we might take a recess.
20 JUDGE BLOCH:
Let's take a recess, 10 minutes.
21 (Recess.)
22 JUDGE BLOCH:
Mr. Gad, did you use that break to 23 do something that will be helpful here?
24 MR. GAD:
In addition to smoking my pipe, your
,O b#
25 Honor?
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(Laughter.)
2 I am afraid that, particularly in view of the 3
Board's ultimate statement, the question of a hiatus is not 4
something that would be acceptable to the Applicants.
I 5
suggest that we proceed apace and that when Rev 4 is out and 6.
'someone has a chance to take a look and see what has 7
changed, then they can decide what, if anything, they wish 8
to seek from the Board by way of extra indulgence on account 9
of the publication of Rev 4.
10 JUDGE BLOCH:
Mr. Roisman.
11 MR. ROISMAN:
CASE has been down this road once, 12 writing summary judgment motions.
Happily, it was not
!,)
13 Ms. Garde and myself, and hopefully it will not be us this 14 time.
15 The knowledge that there is something coming as a 16.
rev large enough to make it a rev of the whole plan and not 17 simply the amendments to appendices that have been coming 18 periodically or the addition of some ISAPs that were not in 19 the original plan makes us feel that the process, at least 20 insofar as the time limit for us to start writing summary l
21 disposition motions, would be extremely prejudicial to us if 22 we did not have Rev 4.
l 23 The discovery process as far as document i
24 discovery is concerned and answers to interrogatories, that O(/
!~
25 is completed.
We don't have under the proposal a new ACE-FEDERAL REPORTERS, INC.
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round or anything like that, and we do have still 2
Applicants'~ motion and the Staff's motions now with regard 3
to the depositions, which we will have to brief, and we will 4
be asking for extensions to do that on.
5 In any event, what I am concerned with is not 6
starting the clock running on our having to do summary 7
disposition until we see Rev 4.
8 As far as the rest of it is concerned, we will 9
cross that bridge when we got to it.
I am not quite sure 10 how a witness under oath is going to deal with a question
'll when you say, well, what does this mean, and the witness 12 already knows that it is about to be something else.
()
13 Are we going to get split answers that says, 14 well, today it means this but I will not answer as to 15 wh-ther it will mean that tomorrow?
16 That won't be a real fruitful deposition.
17 JUDGE BLOCH:
Mr. Gad, I didn't understand 18 something you said before.
I understand why, when the SRT 19 has not made a final action on Rev 4, you don't want to make 20 things available on the site in a way that will affect the 21 progress of the work.
22 I don't understand why you can't make tentatively 23 approved changes in the program plan currently available to 24 CASE.
25 MR. GAD:
For the same reasons, your Honor, that i
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one would not -- will..not and indeed very rarely has been
-1 2
asked to engage-in in-process discovery.
That necessarily 3
chills the process.
4 When SRT has~ published something and said at 5
least for today-it is finished, we are through with it, the 6
world is entitled to see it, criticize it, and the like, 7
_then it will be published.
Before then it is no more 8
publishable than a portion of one of your Honor's' decisions 9
when you haven't finished the rest of it.
10 JUDGE BLOCH:
Frankly, I wouldn't mind about 11 that.
That is no problem for me at all.
12 MR.' GAD:
And you reserve the right to change-it-
,1
):
13 when you publish the whole thing.
14 JUDGE BLOCH:- Yes, I would preserve the right to
'15
. change it, obviously.
b 16 What is chilled?
I don't understand the' chilling
- 17 effect at' all.
Why would they be chilled on doing their job i'
18 according to their own sense of integrity by the fact that
-19 their draft is available?
i-20 MR. GAD:
Because every time you tell somebody 21 at any time one of his tentative decision -- and you talked 22 a little bit about how humans make decisions -- they say, 23 well, for the time being, let's say I go X and see how it 24 fits in.
As long as that is inter se things work just fine, 25 and they will proceed to produce the best product that they ACE-FEDERAL REPORTERS, INC.
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~1 know.how.
2 Once you tell people that this deliberative 3
process is_ going to get exposed in public, then, as every
~
4 court that has ever been asked to provide in-process 5'
discovery -- and it is only a couple of them because it is a 6
bizarre request -- has ruled you will chill that 7
deliberative process.
8 People now don't want to express tentative
~
9 opinions because, gee, someone-will hold me to it or someone
- 1 10 will ask me.why I am changing it.
11 J U DGE ' B LOCH :
You are talking about a vote of the 12 SRT, right?
They are worried about exposing what they have
()
13 voted on to examination in this case?
-14 I am not talking about some junior person who is 15 writing a memorandum at some low level of an organization.
16 I am talking about a vote of the SRT.
17 MR. GAD:
Until there has been a vote to publish 18 it, your Honor, there is no vote.
19 MR. ROISMAN:
Mr. Chairman, the opportunity to be 20 on the same side as the utility occurs so infrequently that I
21 I don't want to pass it up.
I 22 (Laughter.)
i 23 Every revision of this plan has been an
[
24 improvement over the last one, some dramatically so.
If
(~
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25 Mr. Gad is representing that our seeing the next revision t
1 l
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before it is done may chill any potential for them to make 2
it better -- and you know how dissatisfied we are with Rev 3
3 -- I would really feel badly about doing that.
4 I would feel just as badly about preparing and 5
putting in the effort to prepare to attack a plan which, 6
whether by admission or otherwise, they have decided that 7
they, too, see needs to be' changed, and we are not dealing 8
here with a short-term licensing issue at all.
9 We are dealing -- we have a lot of time.
The 10 answer to the interrogatory, which is No. 31 that we are now 11 discussing, indicates it is expected that Rev 4 of the 12 program plan will be approved and published prior to the end
(( )
13 of the calendar year, allowing for Mr. Gad's normal 14 exception that lawyers do sometimes take time differently.
15 I assume that means something before three or 16 four months from now, but maybe not actually in December
' 17.
1986.
18 I don't think we are necessarily talking about a 19 lot of time, but you could be talking about a lot of time to 20 us, a lot of our valuable time in doing something that may 21 prove fruitless, and the Board has always been willing to 22 see if they can't resolve these problems without us having 23 to put it to the Board.
24 That is one way of doing it, giving them process
(
25 time to let that happen.
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JUDGE BLOCH:
We will reserve ruling on whether 2
or not-there will be a' hiatus because there are some 3
questions that still have to be answered, and-it could very 4
well happen that those answers would be later than Rev 4.
5
.So actually we have made up an interesting problem that.may 6-never exist.
7 So what is the next interrogatory to discuss?
8 JUDGE JORDAN:
49.
9 JUDGE BLOCH:
I am asking-that, I can see in the 10 document that some of them are no longer current.
11 Is 49 live?-
12 MS. GARDE:
The answer is, still 49.
C.
13-
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14 1
15 16 l
17 4
18 19 20 21 r
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' JUDGE BLOCH:
All right.
2 MS.. GARDE:
In this interrogatory, CASE sought by 3
explanation to develop what it is that we were seeking.
And 4
I think:we may have raised some confusion as opposed to 5~
' putting the question more.in a more detailed context.
6 our explanation sought by example to demonstrate 7'
certain assumptions of how we went about writing some of 8
these questions.
9' The question seeks simply and nothing more an 10 identification'of. forms or documents, or types of documents 11 on which an initial root cause hypotheses are recorded.
12 The answer that we got, that there was no
-(
)
13 specific form, seemed inadequate to us based on both our own 14_
assumptions as well as some information on how the CPRT
- 15
. developed, has interfaced with consultants.
And to the 16 extent that we used in our information a consultant coming
' l'7 in much like Mr. Lipinsky did and giving a preliminary 18 analysis of some of his views, that is what we seek.
19 I made reference at the end of this question to a 20 commitment which I have not yet fulfilled but I have not 21 forgotten, to provide a memo in which there was a 22 preliminary assessment in one of the ISAPs.
23 I apologize.
I have not found it yet.
The 24 documents _in my office are in a little bit of disorder and O,,.
25 it wasn't exactly where I left it six months ago, as you may ACE-FEDERAL REPORTERS, INC.
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. imagine.
2' That memo is the type of thing we're looking
~3 for.
In-that case,.as I explained, there was a consultant 4
who. voiced an opinion that the problem was a result of 5
inadequate procedures.
And it was very straightforward.
6 This was this man'stinitial root cause analysis 4'
7 and it provided the basis upon which he developed the_ISAP.
8 Tha?'is the type of thing we're looking for.
~
9 JUDGE BLOCH:
Is that the audit ISAP?
10 MS. GARDE:
No. it was an electrical ISAP.
If
- 11 the answer to the question is simply there is nothing more I
12 that_is_.in the working files, there are no more forms, there
()-
13 is no file that contains a set of these types of i
14 memoranda,then we're satisfied with the answer given.
15 But if, for_some reason, we didn't articulate the 16 question in a way that it was understood, we wish to do that
[
17-now.
18 JUDGE BLOCH: - So you're not looking for forms, 19:
you're looking for --
i 20 MS. GARDE:
For the type of form or document.
We l
21 would then pursue in deposition.
i s
22 JUDGE BLOCH:
Is this a memorandum that you're 23 referring to on a particular kind of form?
i 24 MS. GARDE:
It was not on particular type of l
25 form, it was just entitled " Memorandum".
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JUDGE BLOCH:
So you actually wanted documents in 2
which initial root cause determinations were made.
3 MS. GARDE:
If there was any types of_ forms.
The 4
answer may be that there was only memorandums; in occasional 5
cases, there also may be a form that was prepared.
6 JUDGE BLOCH:
But their answer was they don't 7
have such a form; right?
8 MS. GARDE:
Yes.
9 JUDGE BLOCH:
I don't see what your problem is 10 with that answer.
11 MS. GARDE:.The problem that I have with that, as 12 I tried to describe in this document, is that I have reason (f
13 to believe that there is or was a form that was used to 14 evaluate consultants who prepared what I tend to call 15 Lipinsky type memorandums.
-16 And as I explained in my motion to compel, the 17 consultant whose information I have was not making a bid on 18 the CPRT, directly related CPRT project.
But he did submit 19 information.
20 JUDGE BLOCH:
I saw that in the discussion.
I 21 just don't see how it relates to the interrogatory.
22 MS. GARDE:
I just want to be very clear that 23 we're getting all the information that exists, whether it's
'24 on a form.
And as I say, if the question isn't articulated 25 properly, then I want to reask the question.
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JUDGE BLOCH:
With respect to the completed 2
results reports, you have the file.
Do you think those
'3 things are excluded from the file?
4 MS. GARDE:
Because I've only seen it in one ISAP 5
file and, admittedly, I have not looked at the more recent 6
ones that have been released.
7 But of all the ISAP working files that I've gone 8
through, there was only one of those memoranda.
9 JUDGE BLOCH:
Okay.
I really don't see the 10 problem because we've got no reason to believe that they're 11 taking things out of the files.
That's what you're really 12 suggesting, that the results reports are finished and the
,,n
(_).
13 files are not complete.
14 MS. GARDE:
Not necessarily.
And I'm sorry.
I'm 15 not articulating myself very well.
You have a number of 16 technical problems, each of which are in different ISAPs.
17 For many of these ISAPs there was a process by 18 which it was decided how that was going to be dealt with.
19 And the process included seeking outside help, seeking 20 outside advice as to the problem and its breadth and its 21 scope and its depth and its cause..
22 What I'm attempting to determine is whether or 23 not these types of preliminary analysis were recorded 24 somewhere on something.
(
25 And I use the word form because most of these l
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things are on forms and because I have knowledge ~that there 2
was a form filled out as to another consultant.
3 The same type of thing that I am inquiring as 4
to.
5 JUDGE BLOCH:
What you wat is the document that 6
led to a decision to do a contract about the problem.
7 MS. GARDE:
Yes, if that contains a preliminary 8
analysis of the issue.
I'm more interested in the 9'
preliminary analysis of the issue that forms the basis for 10 the work that is then done and contained in the ISAP.
11 JUDGE BLOCH:
From what I understand, that would 12 be in the results filed.-
I can' t imagine any reason why 13 that would not be in the file.
{
14 MS. GARDE:
This is where we get back to the 15 iterative process.
One must remember that the CPRT birth, 16 when it started here, was in the fall of '84, long before 17 it was developed as it now exists with the SRT, with 18 specific ISAPs, with the issues that are now on the table.
19 In the beginning, in rev. zero and rev. one, they 20 were much less articulated in terms of what is in there, 21 what isn' t going in there, how the management at that time, 22 CPS project management, arrived at certain conclusions about 23 what ISAPs or what issues to pursue.
24 JUDGE BLOCH:
So you think some of the early
()
25 documents may not still be in the files?
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MS. GARDE:
Yes.
Or may not have ever been put
%)
2 in the' files.
3 JUDGE BLOCH:
So what would you think could be 4
done about that?
You mean, you think they're still 5
somewhere?
6 MS. GARDE:
I want to be sure that I have asked 7
forLthem.
And to the extent they don' t exist, that the 8
-applicants say that.
9 MR. ROISMAN:
Let me just give an example of what 10 we mean.
The problem.
You heard Mr. Gad tell you this line 11 between CPRT and project, at some point, the project gets n
12 wind chrough an allegation, a TRT, whatever it is, that they 13 have a p'roblem at some place.
14 And they say, they go out and they get someone to 15 come in and help them evaluate that problem.- They later 16 decide we're not going to contract with this person.
17 JUDGE BLOCH:
The project or the CPRT?
The project.
There's no CPRT at 19 these early dates, not in the form we now know it.
There l
j' 20 may have been a name for that, but there wasn't really a i
l 21 process of the kind we're talking about.
I 22 And the project decides at that point, for i
23 whatever the reasons, not to go with this contract.
Later 24 on, this same problem ends up as an ISAP and they are going
)
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And a new contractor, who got ACE-FEDERAL REPORTERS, INC.
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hired probably by the CPRT, actually now does the work.
iJ 2
In the project files, there is an evaluation of 3
this problem that predates the start of a working file for 4
the CPRT.
So it's not an incorrect answer to say it's not 5
in the working file.
The working file is complete.
It's 6
that the working file, we think, has a starting date that 7
may come af ter the date on which some of the relevant 8
evaluation work was done.
9 And we want to see that.
10 JUDGE BLOCH:
And the reason you want to see it 11 is?
12 MR. ROISMAN:
In order to get at the question of (J
whether they way they define the problems in the CPRT and
~'3 13 14 how they were going to approach them is valid.
15 JUDGE BLOCH:
It's like the other stuff we were 16
.looking at.
17 MR. ROISMAN:
Exactly.
18 JUDGE BLOCH:
Is there information in the pre-19 CPRT files that relates to root cause that is not availablo 20 that you would like to have?
That's the purpose of this 21 interrogatory.
22 MR. ROISMAN:
And, for instance, just to finish 23 that, if the root cause investigation that the CPRT does 24 does not ever look back at this preliminary root cause work j ()
25 that was done before there was a CPRT and we find one that's o
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highly relevant, that then puts into question the way, the 2
process by which the CPRT has chosen to investigate root 3
causes.
4 JUDGE BLOCH:
Mr. Gad, the question has changed a 5
little bit.
It's directed now solely to documents that may 6
have been created prior to the opening of a file for the 7
CPRT that relates to root cause.
8 I assume, this is in the period of what?
You're 9
talking about six months prior?
A year prior?
10 What are you talking about?
11 MS. GARDE:
Beginning in the summer of '84.
So, i
12 probably, going into early '85, after rev. two would have
(~}.
13 come out.
v 14 JUDGE BLOCH:
The beginning of the summer?
Is 15 that July or August?
16.
MS. GARDE:
With the arrival of the TRT, which 17 really is late June.
18 JUDGE BLOCH:
From June of '84 until January of 19
'85?
20 MS. GARDE:
The date that rev. two came out, 21 which I believe was April.
22 JUDGE BLOCH:
From June --
23 MS. GARDE:
I don't remember the date.
24 JUDGE BLOCH:
Until rev. two.
Okay.
Understood
()
25 that way, what's your reaction to the interrogatory?
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MR. GAD:
Your Honor suggested that we were q,<
2 changing the question a little.
Actually, what we've done, 3
we're taking a question that was fully answered, chucking it 4
out the window and asking an entirely new question.
5 That you don' t do on a motion to campel.
6 Question number 49 is a rather specific 7
question.
Note the use of the quotation marks around the 8
phrase, and I quote:
"The initial root cause hypotheses",
9 which comes out of rev. three of the program plan.
It is a 10
. specific reference to the document that this interrogatory 11 was asking questions about.
12 That interrogatory was answered.
And, in fact,
[
13 look at the foot of the answer.
All right?
We went a 14 little bit beyond what the question was.
We were asked what
.15 kind of forms.
We said no specific kind of forms.
16 However, we went on to say that if, in fact, such 17 initial hypotheses were made, any such records will be in 18 the working file.
Now I hear that somebody's upset because 19 they found one.
20 Sorry, but this falls in the category of OED.
21 JUDGE BLOCH:
Actually, their question is whether 22 in fact it would be in the working files, that there may 23 have been some root cause determinations made in the early 24 days that are not any longer in the working file.
(-)
25 Therefore, they say do you want to expand on your s
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answer and make it more accurate?
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MR. GAD:
My answer is perfectly accurate.
The 3
question asked about initial root cause hypotheses, 4
quote / unquote per the program plan, which means made by 5
CPRT.
6 Now,'if you get out Section 3J of the program 7
plan, it tells you about what the contents of the files are.
i 8-Again,-from recollection, one of the specific things 9
required to be in the files is any initial root cause 10 hypotheses.
11 So, if they were made -- I suspect most of the 12 time, they were not.
But, if they were made, they will show f'}
13 up in the working file.
And I understand that, in fact, v
14 that's exactly what somebody found in the one or the two 15 working files that they looked at.
16 The question as asked was answered.
That's the 17 end.
18 JUnGE BLOCH:
We see nothing to compel here.
19 Let's go to the next question.
20 MS. GARDE:
The next two questions are 50 and 52, 21 which are handled together on page 25 of our motion to 22 compel.
Our questions sought the individuals or groups of 23 individuals who were responsible for making the initial root 24 cause hypothesis on each ISAP.
()
25 The answer was:
the review team leader.
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again on the history of the CPRT that we've just gone
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-through, that is, that it began before there were review 3
team leaders as they now exist.
And at a time when, to the
'4 extent that there were, quote / unquote, " review team 5
leaders", that they were individuals whose credibility and 6
environment we are trying to determine, we don' c think that 7
the answer was detailed enough.
8 I think that if a complete answer is given to 9
one, two and four, that we will get a response to this 10 question.
11 (Pause.)
12 JUDGE BLOCH:
We found the answer to these
/~N 13 interrogatories to be adequate already on the grounds that U.
14 anything below the review team leader is not going to affect 15 the adequacy of the plan.
16 Let's go on to 51, if that's the one you want.
17 MS. GARDE:
Question 51 asks to what extent will 18 the root cause determination be reached for specific 19 deviations which do not become an adverse trend.
We sought 20 an answer by a member of the CPRT providing a level of 21 detail.
That was given largely by a lawyer at the last 22 prehearing conference and is not detailed in Appendix E to 23 the level of reliance.
24 JUDGE BLOCH:
Wasn' t this problem taken care of
()
25 in response to the Board concerns?
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'MS.
GARDE:
Frankly, I didn' t read the response
} DAV/bc 2
to the Board concerns looking at this question in mind.
But 3
I think it probably has been.
I'd like, if we have another 4
break, I'd like to look at it with that in mind.
5 We can go on for now because I think you're 6
'probably right, it was covered in detail.
7 JUDGE BLOCH:
So let's go on.
8 (Pause.)
9 Le t ' s go on.
10
.MS.
GARDE:
We're done with set three, moving on a
11 to set four.
The only question we move to compel an answer 12 in set four was interrogatory number 29, where we asked for
(~3 13 a more detailed explanation of the applicant's answer,
'V 14 saying that a task described is analytical.
15 But providing no further clarification or detail 16 or development of what will go into the analysis to reach 17 the conclusion on how collective evaluations will be merged 18 to form a summary report.
19 JUDGE BLOCH:
Mr. Gad, this answer seemed to us 20 to be somewhat evasive.
Either there is no process design 21 or there is some process design.
I don' t understand.
22 Is there no process design?
Or are you saying 23 that it's analytical, therefore, you' re not going to j
24 describe the process?
!j. (3) 25 MR. GAD:
The answer says, your Honors, there is l
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no process.
The task described is analytical.
That is to v
2 say that when I asked these people this question, this is 3
the answer I got.
4 Now, if your Honors step back from the subject of 5
this interrogatory, you will see that this answer is not 6
only the answer that was given -- I understand people don' t 7
believe that that's frankly not the basis for the motion to 8
compel, but this answer is pretty much foreordained, because 9
the stuff that we're talking about and the execution of the 10 program plan is taking a number of reports, reading what 11 they say, thinking about what they say and taking it all 12 into account.
13 JUDGE BLOCH:
Maybe I'm wrong.
I thought they
,(.)
14 were just asking for something like who are the actors?
Who 15 are the people who will be doing that?
How will it happen?
16 MR. GAD:
The question says:
Describe the 17 process.
That means process or procedure.
And the answer 18 is:
There isn' t one.
You know, step one, step two, then 19 step three.
You take a look at it and see what it suggests 20 to you when you write it down.
21 JUDGE BLOCH:
Okay.
The process could mean two 22 groups of people get together, knock heads and come out with 23 an answer.
24 MR. GAD:
I'm sorry, your Honor.
In context,
/~x
( )
25 this report is written by the SRT.
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. JUDGE BLOCH:
So the process is it's just an SRT
~2
' determination?
3 MR. GAD:
Precisely.
S
{
4 JUDGE BLOCH:
On that basis, I really don' t see-a t
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What's the problem you see with i
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MS. GARDE:
I draw your attention to the 2
instructions, our iristructions on page 5, which gives the 3
definition of a process in which we are attempting to 4
determine a process.
The definition we use is the term "the 5
process" means any and all research development inspection, f
6 document review, interviews, walkdowns, analyses,
7 verification, conversations, evaluations and observations.
8 It goes on to detail the types of things that 9
we' re looking for, when we' re seeking to find the process.
10 The term " analytical" doesn't delineate anything.
(~}
11 JUDGE BLOCH:
He is saying that the process is, v
12 there is a group of people who are going to make the 13 determination and beyond that, they don' t know what they are 14 going to do.
They are going to work on it analytically.
15 That's what the answer is.
I don' t see what the 16 problem with that answer is.
17 JUDGE JORDAN:
But that wasn' t the answer that 18 he had originally.
That isn't the answer as given.
It's 19 now a better answer.
20 Mr. Gad has given a better answer.
21 JUDGE BLOCH:
So are we satisfied with what we've 22 got now?
()
23 MS. GARDE:
It is still Mr. Gad's testimony, if 24 you will, as to what is going to be done by the SRT.
It is 25 certainly clear, and the term "it's analytical," flushes ACE-FEDERAL REPORTERS, INC.
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v' E 2-JUDGE BLOCH:
Your problem is, you would like in 3
an affidavit that it will be done by the SRT?
4 MS. GARDE:
I would like to know what the 5
criteria is that is going to go into the analytical 6
process.
7 JUDGE BLOCH:
What the criteria are for putting 8
the things together?
9 MS. GARDE:
Yes.
10 JUDGE BLOCH:
My sense is that what you' re asking 11 is like, you know, how would you decide what negligence is?
12 MR. ROISMAN:
That is a much easier answered
("N 13 question than apparently this one is.
We know what we would
\\_]
14 do.
We would look at the evidence and the witnesses who 15 testify.
I mean, there are a whole bunch of things you 16 would do.
We don' t have the scope of this.
What documents 17 are going to be put together.
Are they going to go back to 18 their working files?
Are they coing to look only at the 19 results reports?
Are they going to read a summary of the 20 results reports?
This SRT is a group of a relatively small 21 number of people who have a huge responsibility at the site, 22 how they process all this data and give it their best shot, 23 or are they doing a lot of quick and dirty?
24 JUDGE BLOCH:
The reason I think he is not giving
()
25 you an answer is, that if I were on the SRT, I would have ACE-FEDERAL REPORTERS, INC.
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to see what it was and then see what to do about it.
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can' t imagine they could have a process before they actually 3
got the stuff to look at.
4 He's saying there is no process right now.
5 So let's go on to another one.
6 MS. GARDE:
On to Set 5, Ouestion 26 and 27 and 7
28, all of which seek precise detail regarding the 8
evaluation of different parts of Appendix E.
I would like 9
to also look at this question in light of the response to 10
.the Board concerns.
11 JUDGE BLOCH:
So you want --
12 MS. GARDE:
I think the response to the Board 13 concerns answers to most of these.
To the extent it does 14 not, I will raise the questions again.
15 JUDGE BLOCH:
You might -- we don't see anything 16 wrong with the answers as given, in terms of an honest 17 attempt to answer the meaning of terms in a document, but if 18 you could explain that to us, we may be able to listen.
We 19 may be able to finish today, though.
20 Let's continue.
21 MS. GARDE:
Next is Set 6, Interrogatory No. 27, 22 which deals with the expert witnesses, which Mr. Roisman is 23 going to handle.
24 MR. ROISMAN:
Mr. Chairman, we have briefed this
()
25 issue.
At a previous time, you had had held that we should ACE-FEDERAL REPORTERS, INC.
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wait until' it's ripe.
We think it's ripe.
Unless you ask J
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written pleadings, as long as you incorporate in that 5
earlier writing, and I think the utility also had an 6
extensive writing on this before.
7 JUDGE BLOCH:
Does the utility have some brief 8
comments?
9 MR. GAD:
If I might, your Honor.
10 CASE is quite correct that this matter has been 11 briefed before.
It was briefed in our response to the first 12 motion to compel on November 6, our second on December 13 12.
There was some discussion of the' point in a memorandum
. CT v'
14 not directly before you, but physically before you, the 15 memorandum in support of the motion to quash, dated December 16 5.
It was also the support of oral argument in a prehearing 17 conference of Novembe 1985 and the two motions to compel and 18 the responses to them.
19 Subsequent to that, very briefly, this particular 20 kind of question, i.e.,
"Please identify all of your 21 experts," is a question that is explicitly prohibited by 22 Rule 26(b)(4 ) of the Federal Rules ot Civil Procedure, made 23 applicable to these proceedings in now a long line of NRC 24 cases.
()
25 At such time as any party has decided who its ACE-FEDERAL REPORTERS, INC.
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3-you.need to avoid surprise, which is the purpose of
.4 discovery and b) the Commission has said is appropriate, and 5
the Rules of Practice say is appropriate.
'6 So I respectfully suggest that while this is, 7
indeed, old ground, that doesn' t mean that it is forgotten 8
ground.
9 This question is simply verboten.
10 (Pause.)
11 JUDGE BLOCH:
The Board has deliberated on this 12
' question, and Dr. McCollum is also in agreement with what we 13 have to say.
We consider this primarily to be a factual
'14 question not a legal question, because our consideration of 15 what the CPRT is just does not allow us to accept the view 16 that all of the people hired as consultants by the CPRT are 17 consultants engaged for the purpose of litigation.
18 It is quite clear that the CPRT work is being 19 done in order to identify problems in this plant and to 20 correct those problems and that the work of the CPRT will be 21 directly utilized by CPSES people, in order to correct 22 l deviations found in this plant.
23 Having said that, it is possible that there are 24 some people who truly are being engaged in the CPRT process
()
25 solely for the purpose of litigation, but our view is that ACE-FEDERAL REPORTERS, INC.
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that would be a limited and special case, and these would 9:
2 not be the people who are in the regular process of 3
identifying plant problems.=
4 We also think it appropriate to restrict this 5
interrogatory to supervisory or management level people, 6
because we are dealing here with the adequacy of the plan.
7 So therefore, anything below that level we would consider 8
not to be directly relevant to adequacy.
~
9 So with those limitations, we will order that the i
10 interrogatory be answered.
11 Next, CASE.
12 MS. GARDE:
Interrogatories No. 39 and 40.
Those 13 two questions seek the identification of project personnel, 14 39, management personnel and 40, all persons.on the project 15 who participate or' implement the project's actions, for the 16 issues identified in A through D, which is a subset of a 17 number of tasks listed on a matrix on'page 10.
18 The Applicants objected on the grounds that 19 information was not relevant.
We have moved to compel on.
20 the grounds that the response is not complete and that our 21 need for discovery in this area, that is, where the 22 identification of the management personnel is necessary,.in 23 order for us to complete our discovery process, to determine 1
24 if we were disposing the right people, if we need to' depose t
- ()
25 other people, as well as to figure out how the process t
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.These two questions only seek the identification 3
of named individuals.
LF 4
JUDGE BLOCH:
How does this relate to adequacy?
5 MS. GARDE:
As we discussed before, CASE is 6
trying to put together a complete understanding of how the 7
CPRT works.
There is a matrix that is identified on page 8
10, which states that project personnel are responsible for 9
a list of items.
Of that list of items, these are the
.10 issues that we believe go into the adequacy of the plan.
>d 11 That is, support service documented in information.
5055(c) 12 reportability.
We need to be able to determine who in the
.(X.
13 project is involved in these activities, in order to further V'
14 our discovery.
The information is relevant.
Certainly, 15 it's the type of information that fills in the picture of 16 who is doing what at the plant and takes things from the 17 CPRT and provides either information back or makes decisions g
18 about those things we seek in other questions.
7 19 JUDGE BLOCH:
These are important functions, in f
20 your opinion?
~;
21 MS. GARDE:
Yes.
22 JUDGE BLOCH:
What will knowing the names of the 23 people do for you?
e 24 MS. GARDE:
First of all and foremost, it will F"
([ )
25 help us determine if we are doing the right discovery, if ACE-FEDERAL REPORTERS, INC.
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we are desposing the right people.
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~ ' If,' for example, and I use this only as an 3-example, the management personnel who are responsible for 4
identifying deviations and deficiencies, preparing NCRs, et 5
cetera, are all the same individuals who participated in the 6
identification of deficiencies 'before Mr. Brant, Mr. Tolson, 7
Mr. Purdy, if they are the same.; individuals.
We would 8
probably press further to determine whether or not the 9
credibility issues need to be pursued.
If they are new and 10 independent individuals, a statement made by Applicants, we 11 probably_would not push that issue.
12 JUDGE BLOCH:
It looks to me, if we are going to 13 divide them, that 39 deals more with adequacy and 40 more
}
14 with implementation.
15 MS. GARDE:
That is correct.
16 JUDGE BLOCH:
Mr. Gad, do you accept that as a 17 view, or is there some other comments you'd like to make?
18 MR. GAD:
39, your Honor, it's wholly included in 19 40.
40 says all the world who's doing it, and 39 says the 20 management people who are doing it.
21 JUDGE BLOCH:
We were thinking of not granting 22 40, but granting 3 9.
o 23 MR. GAD:
I read you, but for openers, I don' t 24 know what " management persons" means.
Therefore, when I l
(')
25 handed this to SRT and said, please answer this question, 1
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the first question I'm going to get back is, what does 2
management mean, and I can' t tell them, I don' t know, ask 3
the Judge.
So I'll have to tell you now.
We don' t know
'4 what that term means.
5 My second problem is that none of this has any 6
possible relationship.
It is a logic failure to the 7
adequacy of the program plan, and frankly, this one is a 8
double fault.
Fault one is this.
Our issue, as I 9
understand-it, is whether.or not the program plan and the 10 statement of actions contained in the program plan is 11 adequate, and I quote, if implemented perfectly.
12 Now let's assume that we took the same program
('}
13 plan, the same words, the same set of procedures, the whole
~a 14 magilla, and we had it implemented 50 times, and each time 15 we changed the people, assuming we didn' t run out of people 16 in this country.
17 If you constrain this by saying that the program 18 plan, each of those 50 times, must be implemented perfectly, 19 if gaining constraint, as I understand it, is what you're 20 doing, number one, implementation would be identical every 21 time.
The results would be the same every time, and the 22 difference between the people will be entirely 23 noncontributory to adequacy.
That's only f ault one.
24 There's a fault 2 block.
Just wait a second.
()
25 I'd like for CASE to tell me the purpose of the ACE-FEDERAL REPORTERS, INC.
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2 MS.. GARDE:
In 39, dealing with management?
3 JUDGE BLOCH:- Once you know the people who are-4
-the headsLof these things, what will you ask them that will 5
reflect on the adequacy of the program plan?
6 MS. GARDE:
Do you mean, what.will we ask the 7'
-people who_are-identified?
We may not ask'them'anything.
8 If the answers come back, and they are a certain 9
subset of' people that we think lends to our argument on 10
. independence, credibility, systematic and pervasive control 11 aof the CPRT process by former personnel, that is all that we 12 need.
(')
13 If, on the other hand, the individuals named are
-v 14 new people, that may be the end of the issue.
That's why 15 the discovery' helps us in terms of narrowing down where we I
16 are going to go from here.
i 17 JUDGE BLOCH:
Basically, what you want by
^
18 management people are the people who are responsible for 19 seeing that those four functions work properly?
20 MS. GARDE:
Yes.
L 21 JUDGE BLOCH:
To that extent, well, you have 1-22 another point or two?
23 MR. GAD:
The second fault.
None of these four 24 things are CPRT functions.
()
25 Now CPRT, the program plan, has a number of L
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interfaces.
One of them is, it's going to publish its
)
2 results.
It was suggested at one point in time, and I must 3
say there are some people who regret it, but it was 4
suggested at one point in time that we ought to take all of 5
these interfaces and collect them in one place.
It would be 6
helpful, it was said.
7 The so-called "page 10" that's referred to is, in 8
fact, a portion of this collection of outside interfaces, 9
and each of these four things are matters that are outside 10 of the scope of CPRT.
11 Document and information request means, if I want 12 drawing EO 1468.2-2, I pick up the phone or I send the 13 memo, and I say, give me a copy of that drawing.
This is 14 what this is talking about.
15 And that's what the program says it's talking 16 about.
17 Let's not have any more of this lawye r ' s 18 testifying.
Tha t's what in the document, if you read it.
19 B.
Support services request.
That's the 20 scaffolding and the ladder, in order to get up on the pipes 21 that are taller than I am.
22 JUDGE BLOCH:
I'm sorry.
Let's go back to the 23 document.
24 It's non-CPR2 personnel who are making sure that f ')
25 when you request the document you get the current document?
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MR. GAD:
The RTL can request a drawing to take a s_-
2
'look at it. LHe has a list of the current drawings, but he's 3
not allowed to go into document control and draw it for 4-himself.
.5 JUDGE BLOCH:
He is going to use his list of 6'
current drawings to obtain the current drawing?
7 MR. GAD:
If he wants the current drawing or if 8
he wants-the drawing, it was used to install conductor 46, 9
he will want the drawing that was used on a certain date.
10 And if the program plan is implemented perfectly, 11 that's what he'd get.
12 JUDGE BLOCH:
But it's not part of the program 13 plan at all for him to get the right document, because that 14 group is outside of the CPRT.
e 15 MR. GAD:
If you're asking me the extent to which 16 he may verify that the plan is being implemented as 17 intended, I am not prepared to answer that.
18 If we are talking about whether or not the plan, 19 if implemented perfectly, is adequate, then it does matter, 20 but let's understand what little "a" is about.
This has 21 nothing to do with the input to the decisionmaking process 22 of whether or not the pipe supports are going to stay on the 23 wall or the little conductors got in the right terminal 24 blocks.
j
);
25 Item b is this thing I was talking about before.
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JUDGE BLOCH:
I'm sorry.
.I don't understand L) 2 tha'.
3 Wouldn' t one reason you' d request documents would 4
be to verify things in the field?
5 MR. GAD:
You verify things in the, field by going 6
out and taking a look at them, your Honor.
7 JUDGE BLOCH:
Against the design' documents?
8 MR. GAD:
I'm sorry; yes.
9 JUDGE BLOCH:
So this is integral to the 10 inspection process working right, that he have the right 11 document.
12 MR. GAD:
You hope that this works, if your 13 implementation is going to be adequate, but the program plan 14 says, step one, get document.
Step two, take a look at it.
15 Step 3, go out in the field.
16 The theory is, are those list of steps adequate?
17 And I quote again, if implemented perfectly.
18 Now this is boundless, and it was offered to you 19 on the assertion that we were going to have a project 20 review, the same old guys who put things under the rugs in 21 the past or whatever, coming in and telling SRT whether or 22 not something is a valid deviation or safety significant.
23 That is the premise on which, moments ago, this 24 interrogatory was argued to your Honors as being relevant to
()
25 program adequacy.
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JUDGE BLOCH:
Do the names of these people ever J
2 appear in CRT documents?-
.3 MR. GAD:
I cannot answer that ouestion.
4 JUDGE BLOCH:
Continue.
5 MR. GAD:
'B is the scaffolding.
Nobody wants to 6
hear any more about the scaffolding.
7 Number"c" is this.
As I said before, if the CPRT 8
process identifies something that may be a deviation, it is 9
obligated to hand it to the project and say, you do what 10 you've got to do with it.
11 But for CPRT decisionmaking process purposes, it 12 doesn' t matter what project decides to do with it, so if
{"t}
13 one of these supposed bad guys comes along and says, that's 14 not a deviation or that's not safety significant, so forget-15 about it, or I don' t like it, so forget about it, that will 16 have no effect on what CPRT decides to do, save possibly 17 one, and that is, if they see too much of this, it's going 18 to lower the grade of the action plan.
It talks about the 19 nonconformance and corrective action.
20 JUDGE BLOCH:
So there is a part of the CPRT that 21 looks at that interface to see whether they are promptly 22 identified and correcting deficiencies?
23 MR. GAD:
It's an action plan, your Honor, under 24 7(a) something.
7 ( b).
I can' t remember.
But apart from
- ( )
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3 Those are all made by CPRT and the fact that this 4-NCR processing and disposition process goes on does not make 5'
a CPRT function.
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JUDGE JORDAN:
Wait a minute.
There is also a 2
matter of whether the plant is going to be constructed 3
properly, safely, in such a way that it can be licensed.
4 MR. GAD:
Yes, your Honor.
5 JUDGE JORDAN:
And that does depend upon the 6
plan, and the basis for the program plan is those people 7
will perform perfectly.
8 MR. GAD:
Not the project, your Honor.
9 JUDGE JORDAN:
I thought you said this was this 10 hypothesis.
11 MR. GAD:
The hypothesis of what we are 12 litigating is assume a CPRT program plan functions 13 perfectly.
That means that we are not up here doing 14 discovery and getting prepared to see whether or not the 15 people are competent to lift the weights.
16 JUDGE JORDAN:
I think I have to go back over the 17 words again somehow.
18 We are talking about whether the CPRT program is 19 adequate, and I thought it was your position that you 20 assumed for the moment that it will be implemented 21 perfectly.
22 Wasn' t that what you said a while ago?
23 MR. GAD:
What I said, your Honor, was that 24 anything that is argued to be relevant to plan adequacy must f^%
Ol 25 assume that the CPRT program plan will be implemented l
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perfectly.
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This step is not a CPRT program plan step.
It is 3
outside the program.
4 JUDGE JORDAN:
That is right, but you assume that 5
these will be implemented perfectly; namely, the NCRs, 6
prepare the NCRs, and so on?
7 MR. GAD:
If implemented perfectly means if.the 8
CPRT program plan is implemented perfectly, any failure in 9
No. C has nothing to do -- does not determine whether or not t
10 the CPRT program plan has been implemented perfectly.
11 It is somebody else doing it, your Honor.
It is 12 not one of CPRT's list of tasks.
A 13 (Pause.)
V 14 JUDGE BLOCH:
We do have enough to decide this
-15 issue.
J 16 Our decision is that we are not certain about the 17 relevance of this to the adequacy of the program plan, but 18 it is sufficiently relevant to the hearings that are ongoing 19 that we will compel an answer to the interrogatory.
It is 20 relevant to the case.
Just 39.
21 MR. GAD:
Your Honor, to save me a bit of 22 heartache, would you define, so that I can pass the 23 transcript down to people who have to answer this question?
24 JUDGE BLOCH:
It is the people who are
()
25 responsible for seeing that this function is properly AaFEDERAI REPORTERS, INC.
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supervised and implemented, each of these four functions.
s) 2 Next?
3 MS. GARDE:
Interrogatories No. 52 through 56 4
follow the discussion that we just had, in that each of the i
5 questions asks what action is taken by the project on each 6
of the issues that we have just discussed, A through D.
7 Applicants raised the same objections -- correct 8
that.
Applicants answered the questions and made reference
-9 to Program Plan Appendices E and H, which does not provide 10 the level of detail that we are interested in in this set of 11 questions.
12 Each question is exactly the same.
It goes to 13 one of. the tasks that we just discussed in Question 39.
}
14 What we are seeking here is what happens when a 15 CPRT person puts in a request under one of these areas for 16 each of the questions.
How is that action taken?
17 I use an example, completely hypothetically, 18 regarding documentation.
The CPRT project determines they 19 are going to do a number of inspections.
They call up 20 person X and say we need the following documents to do our 21 inspection.
22 What we are seeking here is to find out what 23 happens once that request is received by the CPRT.
24 Without sounding suspicious and certainly relying
()
25 on adequate evidence already in the record, this project has ACE-FEDERAL REPORTERS, INC.
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had a lot of problems finding documentation.
2 If the CPRT itself had the authority to go over 3
to the vault, get the documents and then write an NCR if the 4
documents could not be found, we might have an entirely 5
different report from the CPRT personnel regarding its 6
issue, the issue it was pursuing, than we now have.
Right 7
now there is a wall between the CPRT and the project 8
personnel.
9 What we are seeking by these questions is to 10 determine what the project people do when the requests for 11 assistance are received from the CPRT.
12 JUDGE BLOCH:
So what is Applicants' response?
(^]
13 MR. GAD:
What you have just heard defended, your
'J 14 Honor, is unfortunately not the question that was asked.
15 The question that was asked is what action is to be taken by 16 the project, A,B, C,
D, and E?
17 These all start out the same, what action is to 18 be done by the project?
19 The answer is that for each one of the action 20 plans, together with Appendix E, which is the disposition of 21 deviations, and H, which is corrective actions, I believe, 22 together those list the actions that the project is to do to 23 support CPRT.
That is a full and complete answer.
24 JUDGE BLOCH:
I am not sure that full n()
25 communication is taking place.
I thought, are CASE's ACE-FEDERAL REPORTERS, INC.
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questions directed during the process of preparing the CPRT
%.).
2 reports or after they are completed?
.3 MS. GARDE:
During the process of preparing CPRT 4
reports.
5 JUDGE BLOCH:
And the answer was that each of the I reports states what actions are required by project staff.
7 What is the problem with that as being a complete 8
answer?
9 MS. GARDE:
The information in the program plan 10 itself, which is referred to, does not give the level of 11 detail that would provide CASE with knowledge of how action 12 or work coordination on each of these issues is documented.
13 Let'me start again.
14 There is a certain set of assumptions in the 15 implementation of the CPRT.
If those assumptions are 16 incorrect; that is, if the CPRT personnel are operating on 17 the assirption that project personnel are going out and 18 pulling the documentation, giving it to them, and there are i
19 no problems identified, they would reach a different 20 conclusion than if they themselves were involved in the task 21 of actually going the whole way.
22 If they had the independence to come and go as 23 they liked, they would writo the NCRs, they would go into t
24 the vault.
That would be a different program than we now
()
25 l have.
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2 we need to know that in order to determine whether or not 3
the program plan is working or is going to work adequately.
4 JUDGE BLOCH:
The detail you want to go to as 5
part of the adequacy of the plan is whether in detail they 6
process the documents properly?
7 MS. GARDE:
Using that as an example.
8 JUDGE BLOCH:
Doesn' t that sound like 9
implementation?
10 MS. GARDE:
Yes.
I am not seeking to determine 11 whether or not implementation is being carried out.
What I 12 want to know is when the vault receives a request for
()
13 documents from the CPRT what action or work coordination L.-
14 data request or other forms of corrective action is required 15 in response to the CPRT-generated action.
16 (Pause.)
17 JUDGE BLOCH:
In terms of the adequacy of the 18 plan, we consider this to be requests that are in much too 19 much detail.
We are really talking about the details of 20 implementation of the plan.
21 In terms of discovery related to the other 22 aspects of this case, it seems to us that it would be far 23 preferable if CASE were to ask these questions with respect 24 to specific action plans in which there was a problem, so
()
25,
that they were somehow tied into a specific difficulty that ACE-FEDERAL REPORTERS, INC.
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CASE was investigating with respect to implementation of a b
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2 plan.
3.
So we will not compel 52 through 56 at this 4
time.
5 Next.
6 MS. GARDE:
Interrogatories No. 57 through 59 and 7
61-and 63 through 64 are all treated together by 8
Applicants.
So we have continued to treat them together.
I t
9 can break them up if there is a preference by'the Board to 10 do that.
11 JUDGE BLOCH:
Continue.
12 MS. GARDE:
This question also seeks the (l
13 identification of individuals within the project with
\\/
14 certain responsibility regarding each of five items --
i 15 action plans, documents, support services, deviations and 16 corrective action.
17 What we are attempting to seek here, and which 18 Applicants provided no answers to, is the interface and the 19 interrelationship between the project and the CPRT so that 20 we can determine in terms of looking at the adequacy of the 21 CPRT whether or not the program plan provides the ability to 22 reach conclusions on the plant given the procedures of the 23 self-initiated evaluation and how it is currently.
24 The interface between this project and the CPRT
()
25 goes both to independence as well as to implementation
(
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later down the road as well as to the credibility of the 2
individuals involved, and we believe that based on a review 3
of the procedures, one of which Mr. Roisman referenced 4
before, on how CPRT deviations, out-of-scope observations,
5 deficiencies, et cetera are being identified, that there is 6
a major loophole in the adequacy of the CPRT which does not 7
provide for the program itself to deal, if you will, with 8
the ultimate question.
l 9
The CPRT gives findings to the project.
The 10 project reaches certain conclusions, takes certain action, 11 feeds it back into the CPRT.
What we need to do is have a 12 complete understanding of how that works in order to be able 13 to prepare motions for summary judgment.
14 Mr. Roisman wants to give an example.
15 MR. ROISMAN:
Let's just take -- let's assume 16 under the CPRT that an investigation is going to be 17 conducted of liner plates and that there was not one 18 conducted in the course of this licensing proceeding.
19 In many ways the relationship between the CPRT 20 and the project is the relationship between a party to this 21 licensing proceeding and the utility.
They have discovery 22 rights.
They have a certain amount of authority, in our 23 case through law, in their case through the relationship 24 they have with the company, and they have to depend on what
[^\\()
25 they aet back in order to get their investigation.
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-1 Would they -- if they called up the company and 2
said, look, we need the documents that relate to-the CPRT --
3 excuse me -- with regard to the liner plates, there has been 4
an allegation about this, would they have gotten all the 5
procedures which we eventually got in discovery from the 6
management of the project?
7 Well, that might depend on who answered that 8
question.
If the question was going to be answered by the 9
same people who participated in the problem arising in the 10 first instance, they might get a more selective one, and 11 they don' t have -- they are not going down there and putting 12 hands on themselves.
They don't have the capacity to do 13 that.
}
14 That is not an implementation question.
That is 15 an inherent aspect of the CPRT process.
16 How does the CPRT process as designed assure the 17 CPRT that it is going to get good data out of the project?
18 How can the CPRT people reach any conclusions about the 19 adequacy of the plan when they rely upon plan personnel to 20 do corrective actions and to evaluate deviations and make 21 decisions about them?
How?
22 Because they believe,that CPSES is going to do it 23 in a certain way.
24 We believe that is challengable at the adequacy
()
25 level if the people who are doing that work on the project ACE-FEDERAL REPORTERS, INC.
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side were involved in making those mistakes in the first 2
instance, and what we are getting is we are getting a 3
shut-out on that.
We are being told it is none of your 4
business.
5 Then we get a document that shows that the 6
principal procedure that relates to how they are going to 7
process CPRT deviation reports passes through Tom Brant's 8
hands.
l 9
Well, you know CASE's position on the reliability 10 of data that passes through Tom Brant's hands.
11 How widespread is this?
How many more people do 12 we have who are doing that?
^'}
13 That is what these questions are trying to get 14 at.
It is not as though the interface is irrelevant.
It is 15 the heart of the CPRT concept to rely upon the project to do 16 some things and for them to say and do only other things.
17 You would have done the plan differently if you 18 believed from the outset that the project wouldn't do it 19 r ig h t.
20 1 The CPRT is based on some assumptions that we are l
21 trying to test in this discovery and later, if appropriate, 22 l in summary disposition.
i 23 l Now, we don' t know that we are going to get 24 :
relevant information, but we have a ciqht to look at these
/)
25 i questions to find out if there is going to be a pattern of i
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'the people who know how to bury the knowledge or are R.]
2 responsible for sharing knowledge with the CPRT.
3 JUDGE BLOCH:
I can conceive of the possibility 4
that you can win on that at the end of the case, but to hear 5
that you think you could get summary disposition concerning 6
the adequacy of the plan really is pretty striking.
7 MR. RGISMAN:
Let me articulate it again.
If 8
that is it, that is it.
We won' t make a whole lot out of it 9
on summary disposition, I can assure you.
10 But this plan is based upon an assumption about 11 what role CPRT can play.
Now, they have decided that they 12 can rely on somebody to do some of their work, work that in
(~T 13 a different CPRT, one that we might have wished they had
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14 adopted, they would have done directly themselves.
15 If the people to whom they turn that over -- just 16 assume hypothetically that a new consulting company had been 17 given that responsibility, hired by the plant -- President 18 and Chairman of the Board Ron Tolson, Chief Executive 19 Officer Tom Brant -- and you know who the other key 20 officials are going to be in my hypothetical.
21 l I would say that we could argue programmatically 22 f based upon the record in this case of who made the mistakes, 23 that you cannot have an adequate CPRT if a large component 24 of what they need to do their job is coming out of that
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25 team.
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We want.to know is that team, without operating
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2 under that label, really functioning at the plant site right 3
now.
4 We have enough data from the discovery that we 5
have gotten already to know that a number of those people 6
about whom we were concerned -- Powers, Pothewell, 7-Vogelsang -- we can go on and on -- are there in very, very 8
key positions.
9 Are they isolated from the CPRT so they don' t get 10 in the way of the CPRT getting the help and data it needs 11 from the project, or are they key actors in the process?
12 That is what we want to know.
13 JUDGE BLOCH:
I would like Mr. Gad to address, if
}
14 he would, the appropriateness at this stage of the 15 proceeding but also the appropriateness as discovery of this 16 question in the case.
17 MR. GAD:
Your Honor, I must say I have trouble 18 adding anything that is new, and I really had to get to my 19 feet unless I can do that.
20 I will say one more time, the entire exegesis to 21 which your Honors have just been treated is about something 1
22 other than the CPRT program plan.
23 Now, I can tell you that, but I don't think 24 anyone is going to believe me.
Perhaps you can go out and
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25 read it and see for yourself.
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Lbecause it is being misused.
5 The people about whom discovery, massive amounts 6
of discovery is sought in these interrogatories, do not make 7
any decisions for CPRT, period.
8 Now, I don' t want you to take that as testimony.
9 JUDGE BLOCH:
I understand that, and on the i
10 second part of the question, however, the process that is i
11 being implemented is going to have to result in good i
i 12 hardware in the field before we are going to be satisfied 13 that the CPRT works.
14 MR. GAD:
Absolutely.
15 JUDGE BLOCII:
So the question now is, assuming we l
16 accept your view that it is not the CPRT and therefore it is 17 not the adequacy of the CPRT --
l 18 MR. GAD:
Ilow do we get to the end?
Is that the 19 question?
20 JUDGE BLOCH:
Yes.
flow do we cet to the end?
Is t
21 this relevant discovery so they will be able to know about i
22 the implementation process before the end of this case?
23 MR. GAD:
Maybe yes, maybe no.
Certainly insofar 24 as we are focusing on the project, disposition of NCRs in
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25 the future as opposed to in the past; that is to say, do we ACE-FEDERAL REPORTERS, }NC.
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7 8
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The theory of CPRT is precisely this.
When it is N/
2 through, we will have a statement for you to the effect that
.3 there either doesn' t exist any problems, the correction of 4
which is necessary in order to make sure that this thing can 5
operate within the bounds of Commission rules and 6
regulations, or that there do exist such things that have to 7
be corrected -- here they are.
Here are the corrective 8
actions.
And, oh, by the way, we've taken a look at the 9
beginning of the implementation of that corrective action 10 process and we're satisfied (a) that they know what we 11 were talking about, that the communications work; (b) that 12 they've got the skill to do it; and (c) they're doing it.
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13 That's all your Honors need to determine
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14 contention five.
I hope that was responsive, your Honor.
15 JUDGE BLOCH:
We' re going to grant this request, 16 but not for this stage of the proceeding.
We're going to 17 grant it because it could lead to information that's 18 relevant to the process by which the CPRT program is being 19 implemented in the field.
20 Next?
21 MR. ROISMAN:
Noxt is 60 and 62.
And I would 22 assume by looking at the questions that wo will get the samo 23 answer.
If that's so, I'll save you the trouble of 24 oxplaining why I wish you had given a different answer.
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25 JUDGE BLOCH:
I'm norry.
I don't understand that ACE-FEDERAL REPORTERS, INC.
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2 MR. ROISMAN:
It looks like 60 and 62 are
.3 governed by the ruling you just gave there.
They are 4
another piece of the same puzzle.
If so, we have nothing 5
more to add on it.
6 JUDGE BLOCH:
Okay.
So you want 60 and 62'on the l
7
- basis of the case as a whole?
Is that what you' re saying?
8 Do you think it's covered by our ruling?
9 MR. ROISMAN:
That's right.
I am accepting the 10 reality of the ruling.
11 Mr. Gad, do applicants acknowledge that, too?
12 MR. GAD:
Your Honor, there was no objection to 13 60 and 62.
I don' t know what we' re arguing about.
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14 MR. ROISMAN:
We asked for a list of procedures 15 and we were given standard project procedures are utilized.
16 That set, while admittedly finite, approaches infinite.
We 17 thought that we would be given an answer that was specific 18 to.the question.
19 JUDGE BLOCH:
They want the procedures.
You said 20 identify the procedures.
You moan produce the procedures.
21 MR. ROISMAN:
Well, we havo a catchall at the end 22 asking for production of ovory document that is roforenced 23 in the answers.
But, yes, that's correct.
1 24 MS. GARDE:
And to the extent that we've already
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25 rocoived the proceduros in response to another question, wo l
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don' t require reproduction.
If we've got them, we don' t 2
need them.
3 JUDGE BLOCH:
So you want to know the procedures 4
for coordinating the activities between CPRT and CPSES?
i 5
'MR. ROISMAN:
And we don' t want to be told that 6
they're all the plant procedures.
We want to have
- I identified which the procedures are, so we know which ones 8
to look for.
And then they can tell us.
You've got 62 you 9
haven' t got before.
10 JUDGE BLOCH:
I'm not sure I understand 62.
It i
11 seems like it almost requires that the ISAPs, DESAPs, it 12 seems like they have to be completed before you could know 13 this.
I 14 MS. GARDE:
Your assumption is somewhat correct.
15 Certainly it will be at the end of the process available, 16 what we' re seeking now, and don' t have an adequate answer l
17 to.
It's again a process question, an interface question 18 where we're trying to figure out how the interaction between 19 the CPRT and the project works.
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20 And what we're trying to determine through this l
l 21 specific question is the precise detail of how information l
22 is transferred for each of the individual items.
23 Certainly, for each ISAP, DSAP and quality of 24 construction action plan, it will be at the end of the 25 process.
But what we are asking here is just a process.
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We don't want all the details, that will come in 2
each of those.
We'd like to know if there is a procedure 3
that is followed, what it is.
4 JUDGE BLOCH:
That sounds like 60.
5 MS. GARDE:
It's very similar.
That's, I'm sure, 6
why they dealt with it together.
7 JUDGE BLOCH:
I'm not sure what you mean if there 8
are no procedures to describe the process in precise detail.
9 MS. GARDE:
If there isn' t a procedure written, a 10 numbered procedure with details, they may have an operating 11 memorandum or something that describes how information is 12 transmitted.
(~~T 13 JUDGE BLOCH:
They probably should be V
14 procedures.
But, in case they haven' t formalized it as 15 procedures, you want to have whatever else they have that 16 they're going to use.
17 I'm inclined to think that 60 ought to be granted 18 but not 62.
But I'd like to hear what the applicants have 19 to say.
20 MR. GAD:
There's no objection to No. 60.
It was 21 offered.
22 JUDGE BLOCH:
Have you produced the procedures?
23 MR. GAD:
We haven' t been asked to yet.
My 24 understanding was CASE already had the project procedures.
I 25 JUDGE BLOCll So do you have everything already?
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MS. GARDE:
If the answer is that they're all the 2'
' project procedures that have already been made available, 3
yes, we have them.
But just saying " standard project 4'
procedures", we don' t know what that means.
5 JUDGE BLOCH:
Do we have the procedures?.Is that 6
the answer?
7 MR. GAD:
I don' t know.
I assume that they have 8
current access to all project procedures.. And here's the 9
problem.
On that day that CPRT decides they want to' climb a 10 wall and they ask the projects to erect a scaffolding, 11 there's a procedure for erecting scaffolding.
I don' t know -
i 12 what its number is.
Nobody knows.
J 13 That's what's going to be used.
And when we got
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14 to this question, I asked these folks if there was anythinq 15 in the universe of the ordinary CPSES project procedures 16 that would never be used in providing CPRT support, the 17
. answer I got literally was:
l 18 "Well, I suppose there are, but I don't know 19 which ones."
l 20 JUDGE BLOCH:
The only procedures that they're L
21 interested in are the ones if there are special procedures l
22 governing how you follow up on the action request.
23 MR. GAD:
Something created specifically for 24 CPRT?
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25 JUDGE RLOCH:
Yes.
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MR. GAD:
That wasn' t in the question.
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JUDGE BLOCH:
That's what you meant 'though?
3 MS. GARDE:
Yes, it is.
S 4
JUDGE BLOCH:
If there are such things, do they
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5 have those?
That's what they're requesting.
6 MR. GAD:
If they don' t have them, it's because 7
they haven' t come and picked them up.
And I don' t think 8
there are very many procedures.
1.
9 JUDGE BLOCH:
So they would be made available.
10 If there are procedures on that, they will be made 4
11 available.
12 How about set seven?
We've only got one 13 interrogatory.
{}
14 MR. GAD:
Your Honor, may I assume --.may I 15 inquire what the ruling is on 60 and 62?
16 JUDGE BLOCH:
On 60, you're going to make 17 available procedures that are responsive to the specific 18 area we identified, which is the way in which the CPSES 19 project will respond to action recommendations by CPRT.
20 MR. GAD:
What I said I would do, your Honor, is 21 to make sure that CASE has a copy of any CPSES project i.
22 procedure that explicitly refers to doing something with 23 CPRT.
24 JUDGE BLOCH:
Okay.
j.
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25 MR. GAD:
Beyond that, do I understand --
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3 MS. GARDE:
The majority of this' question --
4 LJUDGE BLOCH:
I understand this is Appendix H, 5
not B.
Is that right?.
6 MS. GARDE:
Yes.
The majority of this question
'7 is design, which 'is on hold.. And. in preparing for today's
'8 hearing,-when I was looking through the procedures, I've got i
.9 the answer that'I need.
So I withdraw the motion to j
10
' compel.
t 11' JUDGE BLOCH l Okay.
So we have to deal with 10, i
l 12 which we reserved action on.
Interrogatory 10, set number 13
.three.
14 (Pause.)
l 15 JUDGE BLOCH2-Let me just ask applicants a 16.
question here.
I assume somehow applicants have done
~
17' something to keep track of the use of CPSES personnel on 18 CPRT.
And that while it.may not be highly relevant at this 19 stage, that there ought to be some easy way to inform CASE 20-as to which CPSES personnel are being employed by CPRT.
21 Is that correct?
22 MR. GAD:
In any capacity?
23:
JUDGE - B LOCH:
Yes.
You're now keeping track of 24 them?
i
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-25 MR. GAD:
Well, if CPRT requests the project to hs L
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erect a scaffolding, I rather doubt --
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JUDGE BLOCH:
No.
We' re talking about CPRT 4
3 work.; Not even the followup work, which we' re talking about 4
now.
We're talking about CPRT work as you've defined it.
5 MR. GAD:
Like RTL's and issue coordinators?
6 JUDGE BLOCH:
Or data collectors.
7 MR. GAD:
Do you mean inspectors?
8 JUDGE BLOCH:
Yes.
9 MR. GAD:
The identity of all issue coordinators, 10 all RTL's, all inspectors, those are kept.
They are r
11 available in the working files for each action plan.
They 12 of course vary widely, different people doing different
(~h 13 things.
\\_/
14 The answer to whether or not any of them are 15 CPSES project people is nil, none.
16 JUDGE BLOCH:
None of them are.
17 MR. GAD:
Not a one.
18 JUDGE BLOCH:
I just don' t see what's to compel 19 here.
I think we'll let this one ride also.
20 Further, there are a couple of questions that 21 Ms. Garde wanted to assure herself about which we thought we 22 knew the answer to.
They had to do with whether or not the 23 answer to the Board's concerns covered certain matters.
24 What I'd like to do is consider those resolved.
/~'i 25 But if Ms. Garde has serious problems about some part of it,
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we'll get together on the telephone conference and see if we s,
2 can resolve that issue.
3 Is there anything else that must be covered 4
today?
Or are we prepared to adjourn?
5 (No. response.)
'6 JUDGE BLOCH:
There being no further requests, 7
I'd like to thank everyone for their participation and 8
adjourn the prehearing conference, without any further 9
date.
10 (Whereupon, at 5:55 p.m.,
the prehearing 11 conferenced adjourned sine die.)
12 O
14
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20 21 22 23 24 l O 25 L
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CERTIFICATE OF OFFICIAL REPORTER en k.)
This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING:
TEXAS UTILITIES GENERATING COMPANY, et al.
(Comanche Peak Steam Electric Station, Units 1 and 2)
DOCKET NO.:
50-445 OL2, 50-446 OL2 PLACE:
WASHINGTON, D.
C.
DATE:
MONDAY, DECEMBER 15, 1986 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
(sigt)
(TYPED)
DAVID L.
HOFFMAN Official Reporter ACE-FEDERAL REPORTERS, INC.
Reporter's Affiliation ba
. - - -