ML20236P881
| ML20236P881 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/09/1987 |
| From: | Garde B Citizens Association for Sound Energy, GOVERNMENT ACCOUNTABILITY PROJECT |
| To: | Bloch P, Jordan W, Mccollom K Atomic Safety and Licensing Board Panel |
| References | |
| CON-#487-4842 CPA, OL, NUDOCS 8711190051 | |
| Download: ML20236P881 (5) | |
Text
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-GOVERNMENT ACCOUNTABILITY PROJECT -
000KETED.
. MIDWEST OFFICE USNRC
.104 East Wisconsin Avenue ~
0FFICE Of SECUW 00CKEIN & 5EWytCL
. BR ANCh-November 9, 1987 Peter:B.'Bloch, Chairma'n.
Admini'strative. Judge
' Atomic Safety and Licensing Board J-U.S.
Nuclear R_egulatory Commission l
Washington, D.C.
20555 Dr. Kenneth'A. McCollom Administrative Judge 1107 : West Knapp Stillwater, Oklahoma 74075 6
Dr.~ Walter'H. Jordan Administrative Judge-881 W. Outer Drive Oak Ridge, Tennessee 37830 Re:
Texas Ut-ilities Electric Co., et al. (Comanche Peak Steam Electric Station, Units 1 and'2),
Docket Nos. 50-445/446-OL, 50-445 CPA
Dear Judges:
In accordance with t'he instructions of the Atomic Safety and
'i Licensing Board (ASLB) of November 3, 1987, the Citizen's Association:for Sound Energy (CASE) submits the following comments and a request for modification of the Board's scheduling order.
We understand that the Board has, as a general matter, j
proposed a schedule that is premised on the assumption that, unless shown otherwise, there has been a historical QA/QC breakdown in both design and construction at the Comanche Peak plant.
Therefore, the Board believes that the reinspection
]
program is very important for consideration of the issues currently before it, and the Board will look for the same type of clarity-of facts as was accepted in the Diablo Canyon case.
We understand tnat the Board's ruling organizes the l
remaining evidence to be evaluated by the parties, and considered
'by the Board, in eleven (11) " pieces", each " piece" covering an entire area of interest as designated in the eleven Project l
Status Reports (PSRs). Further, we understand that the Board's l
order assumes that the collective evaluation report and the 71109 f g$
0 D
L
collective significance report will be published prior to the release of the last PSR, so that the parties have ample time to consider the information and issues contained in the collective significance / collective evaluation reports and determine their relationship to the PSRs.
The Board, in its proposed schedule did not discuss the discovery phase in specific terms of written interrogatories, document requests, and/or depositions.
Nor does the proposed schedule contemplate or make provisions for motions to compel i
production.
However, it is clear to CASE that the scheduling order presumes full and timely compliance with the schedule, and that the unstated corollary of that assumption is that if there is not full or timely compliance by one or more parties that such actions will not work to the advantage of the dilatory party.
As a general matter CASE does not object to the reasoning or I
assumptions that the Board employed in determining its schedule, l
nor does CASE object to the PSR release " trigger date" for the purpose of commencing discovery on an entire area of interest; I
however, the time frames by which CASE must accomplish certain activities following the issuance of the Staff's SSERs is problematic and we respectfully request the modifications described below.
l Currently the Board has given the parties 20 days to propound and respond t.o all discovery on an entire area of interest addressed by the Staff in a Supplemental Safety Evaluation Report (SSER).
l CASE's first problem with the schedule is the inability to notice and complete depositions of Staff witnesses.
Since the l
Board intends discovery to be completed within twenty (20) l calendar days, in practice that provides CASE only six (6) days to propound discovery.
CASE will be limited to written interrogatories only, because the time frame does not provide adequate time to seek document requests, which allows thirty days to respond, or to take depositions because of the additional time required to go through the extra " regulatory loop" of having to go to the Executive Director for permission to take Staff depositions, and then go back to the Board. 10 CFR 2.720 (h)(2)(i-iv).
Thus, the Board's order effectively eliminates document production and deposition discovery against the Staff after the release of the SSER.
Second, CASE is obviously concerned with its inability to review the SSER, analyze it, organize all available information that the Staff relied upon and determine to what extent CASE disagrees with the Staff and the basis for that disagreement.
Essentially, the Board's scheduling order requires CASE to read, absorb, analyze, the information in the SSER, then contact our
" experts" to have them perform the same task, write questions or l
have our experts write questions, produce the written materials and mail by express mail the written questions in six days.
1 l - _ _ _ _ - _ _ _ _ _ - _ - _ _ _ _ _
If each of the eleven are produced seriatum the task is i
going to be monumentous, but if there is more than one SSER i
issued on the same day it becomes impossible.
A major part of the difficulty is that CASE stands on
'different footing than the other parties with regards to both human and financial resources.
CASE's " experts" are largely the workers or engineers themselves; frequently they are the source cf the original allegation to the NRC.
They are not being paid a consultant fee, but instead have to work at other jobs, leaving only their evenings and weekends to do work on a volunteer basis for CASE.
Additionally, these individuals _have scattered around the country to find other jobs and therefore CASE must copy the material that we receive and forward it to the " experts" for their review.
This process takes longer than six days, and more realistically takes at least 20 days just to turn the information around and obtain the information from the experts.
After considering the Board's order and the problems of working under it, CASE recognized that the Staff could facilitate our efforts if they could or would identify the inspection reports, audit reports, investigations, and other work products that are going to be addressed in each SSER and allow CASE to pursue discovery against the Staff on Staff documents as they become available.
If some accommodation could be made to accomplish the needs of CASE to provide the Staff documents as soon as they became available, the release of the SSER would not be such a major undertaking.
In recognition of the size of the task the undersigned contacted the Staff to see if there was a method by which the Staff could indicate what inspection reports, audits, document reviews, etc. (or portions thereof) were going to be considered under each area of interest.
Assuming arguendo that this was possible CASE could begin the discovery process.1/
Unfortunately, the Staff was unable to informally accommodate the problems by agreement.
They stated that the Staff will not know what it intends to rely on in the SSER until the SSER is issued.
The Staff stated that they would agree to make all documents that support the SSER available at the time of the production of the SSER, and provide them to the parties.2/
CASE requests that the Board modify its order in regards to discovery against the Staff in the following manner:
PHASE TWO:
1/ CASE could continue to use FOIA requests, or begin the preparation of interrogatories on the Staff documents that are the basis of the SSER.
2/ CASE requests the Board direct the Staff to preserve all staff documents about Comanche Peak, instead of the routine destruction of such documents taking place according to NRC policy. l
9
.N Day 1:
The parties receive the Staff SSER and all supporting, material on the entire area of interest addressed by I
the " trigger" PSR.3/
Day 20:
All discovery is initiated by the Applicant or CASE to the Staff, including requests for document productions i
and-noticing depositions of necessary Staff members.
Day 40:
The Staff responds to all interrogatories and document discovery, and identifies those Staff members, sought by CASE or the Applicants for deposition, which it agrees to produce voluntarily.
Day 50:
The Applicar.ts and CASE file any necessary motions to compel, including a certified statement that the party filing a motion to compel has attempted and failed to obtain the information informally.
Day 60:
The Staff files its response to the motions to compel.
Day 65:
The Board rules on any discovery disputes pending between the parties on that PSR/SS.ER " area of interest."
Day 75:
Depositions are commenced of the Staff, concluding discovery phase of hearing preparation.
The Board's proposed order provides that ten days after
-discovery is completed against the Staff CASE will identify the disputed issues of fact.in regards to that area of interest.
CASE understands that order to mean that within ten days CASE will'either (1) identify the factual issues in dispute for evidentiary hearing, or (2) file a motion for summary judgment because there are no factual issues in dispute on that area of interest and it believes it can prevail as a matter of law /,
4 or (3) file a statement of "no contest" for that area of interest.
Following that filing the Applicants / Staff have ten days to respond to the issues put in contention, or respond to a summary judgment motion.
Following that filing the issues will be joined for hearing.
CASE objects generally to the lessening of any time frames that is less than the NRC regulations provide, and stresses that in this case it would be a great injustice to shorten the time frame allowed for CASE to prepare its case for hearing.
3/ CASE will accept a location or FOIA designation as a production of documents previously produced to either CASE or to GAP in response to FOIA's about Comanche Peak.
4/ CASE is confident a quality summary judgment motion cannot be prepared in ten days; however, if that path is chosen we would notify the Board and parties and request additional time. _______-_ - _____
}
I Additionally, since this round of discovery and hearings is intended to be the last, CASE urges that the Board set out in its written scheduling order the standards and expectations that the scheduling ruling is founded on, i.e, straightforward and complete answers, the withdrawal or correction of previously offerred evidence, the timely submittal of all information in the possession or under the direction and control of all applicants, etc.
Additionally, CASE believes that the schedule being dictated by the Board should be flexible, as schedules have been in the past, such that if any party is unable to meet the imposed deadline that consideration is given to the circumstances surrounding a request to modify the schedule or incorporate some additional element.
For example, there is no provision for requests for admissions which may become a tool for any party, nor is there a provision for discovery against CASE.
Each of these elements may become important in the future,-although they are not directly addressed in the schedule.
It is also unlikely that a time frame of thirty days to file final proposed findings of fact and conclusions of law is practical; however, it is far enough in the future that CASE awaits the future to raise that argument at the appropriate time.
Finally, CASE is very concerned that the traditional " night before hearing" problem of midnight production of the documents that Applicants' exper.ts intend to rely on in the hearing is never repeated.
CASE specifically requests that the Board put the Applicants on notice now that it must timely produce, as it promised when it received the "in process. exception," to provide all of the documents that support its position -- when its position is actually finalized.
Respectfully submitted, W
Billie Pirner Garde Attorney for CASE i
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