ML20205F248

Case Response to Applicant Interrogatories to Intervenor (Set 1987-7) & Motion for Protective Order.* Motion for Protective Order Relieving Case of Obligation of Responding to Applicant Interrogatories

ML20205F248
Person / Time
Site:	Comanche Peak
Issue date:	03/23/1987
From:	Ellis J Citizens Association for Sound Energy
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20205F254	List: ML20205F248 ML20205F327
References
CON-#187-2913 OL, NUDOCS 8703310124
Download: ML20205F248 (15)

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19/3 3/23/87 UNITED STATES OF AMERICA NUCLEAR REGULATORY COM4ISSION 00CHETED USNRC BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket Nos. 3 25 21:08 and 50-446

• TEXAS UTILITIES ELECTRIC qFFICE OF E Tali (

COMPANY, et~ al. uCCMEijNG /. SEdvitt.

(Application foridNCH (Comanche Peak Steam Electric Operating License)

Station, Units 1 and 2)

CASE'S RESPONSE TO APPLICANTS' INTERROCATORIES TO INTERVENOR

, (Set No.1987-7) and MOTION FOR PROTECTIVE ORDER Introduction CASE (Citizens Association for Sound Energy), Intervenor herein, hereby files this, its Response to Applicants' 2/26/87 Interrogatories to Intervenor (Set No.1987-7) and Motion for Protective Order /1/, 1 and requests issuance by this Board of a protective order relieving CASE of any obligation to respond to Applicants' Interrogatories to CASE, Set 1987-7, beyond the answers contained herein.

CASE has several objections to this Set of interrogatories. Briefly stated, the general objections are:

1. The requests are premature and unanswerable by CASE until it has completed its CPRT discovery of the Staff and Applicants, which cannot be i

A/ CASE requested an extension from March 17, 1987, to March 23, 1987, j in which to file this responses Applicants had no objections.

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completed at least until Applicants unequivocally st, ate that all modifications to the CPRT are complete and published Q.g.,, where is Rev. 4 of the CPRT?).

2. The request seeks work in progress and thus is premature under the law of this case.

3. Insofar as the interrogatory is deemed to relate to issues of plant design / design QA, or answers are in whole or in part dependent on implementation of any aspect of the CFRT or corrective action plan, they are premature and cannot be answered until the work has been completed and relevant discovery thereon by CASE has been completed.

4. To the extent the analyses and positions requested are prepared by CASE's attorneys or representative, they are trial preparation materials and not subject to discovery and/or undiscoverable attorney work product.

5. The questions seek to know what CASE contends and will be answered by CASE when it so contends in its way, not following an outline specified by Applicants.

The principal objection to Interrogatory 3 is that it is premature.

CASE does not and will not know the answer to the questions propounded until it has completed discovery and of course received full answers to discovery, had time to analyse the data received, and reached its conclusions. At this point, CASE has no final position ready for presentation to this Board, since discovery on the CPRT adequacy, Results Reports, and design / design QA issues is not nearly complete. CASE's preliminary positions are not discoverable because they are irrevelant and constitute opinions based on

" work in process" which, at least for this case, it has been determined need 2

not be produced because it is disruptive of ongoing work. Transcript of November 12, 1985, Hearing Befor'e the Board, e.g., pagen 24,257-24,258.

See also Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 338-39 (1980). (" Simply an a matter of fairness, a licensing board may not waive the discovery rules for one side and not the other. . . . ")

Throughout this proceeding, CASE has taken " positions" in the course of pleadings or orsi arguments. Those positions represented CASE's view at that time based on the information that it had and had reviewed. Those positions were taken in order to protect CASE'n ability to adequately pursue the issues and/or to advise Staff, Applicants, or the Board (as a courtesy and voluntarily) of CASE's then-current position. The only " positions" of CASE that could possibly be proper subjects for discovery are final positions upon which CASE will rely in this proceeding and those CASE has not yet developed on the subjects identified by Applicants.

CASE does not waive our objections to these interrogatories, but instead expressly relies upon them in our responses. It should be noted that CASE has voluntarily gone furtl}er in our responses that. we believe would be required, for several reasons. First. there have been no many changes in Applicants' attorneyn and other personnel that background information regarding the Walsh/Doylo allegations (n1though it is undoubtedly alr*eady available to Applicants and/or their counsel in far greater dotati than to CASE, because of computerization) might truly be helpful to them. It should also be noted that CASE has also gone voll beyond what would have been required by pasticipating in the March 12 3

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through 14, 1987, meeting between CASE's at-this-time non-testifying witness Jack Doyle and Applicants (Stone & Webster). CASE has done this because we i

believe it is in accord with the Board's direction in its 10/31/A5 Memorandum and Order (Procedural Rulings; Board Concern About QA for Design) i at the top of page 4, and that it is responsive, at least in part, to the Board's question during the 3/9/87 conference call of ways in which these proceedings can be expedited. We have responded to the extent that we currently have preliminary views on particular subjects about which we feel sufficiently comfortable to be able to state such views.

l Any additional answers to the pending discovery, if given now, would l be premature and would necessarily require the impermissible divulging by CASE of the mental processes and analyses of its attorr.pys and/or representative. 10 CFR 2.740(b)(2). CASE would object to answering l

l further. When CASE has a final position, Applicants will be one of the l

first to know it.

Applicants' interrogatory l a l "Please identify and describe in full detail each and every one of l

what CASE contends are 'Walsh/Doyle issues' and/or 'Walsh/Doyle allegat ion s ' ."

objection:

CASE objects to this interrogatory. First of all, CASE is not certain exactly how or when the terminology "Walsh/Doyle issues" or "Walsh/Doyle allegations" initially came to be used,in these proceedings (although we do not believe that CASK was the originator of the terminology). CASE objects to identifying and describing terms which were originated by others.

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Answert ,

Without waiving our objections, but expressly relying upon them, CASE offers the following information which is based on our best recollection at this time without engaging in extensive researcht it does not purport to be complete. The term "Walsh/Doyle allegations" (which is the terminology with which CASE is more familiar, rather then "Walsh/Doyle issues") came, over time, to refer generally to those allegations and/or issues which were first brought up by CASE Witnesses Mark Walsh and Jack Doyle.

Hearings regarding the "Walsh/Doyle allegations" were hold in July 1982 and September 1982 (see more complete discussion in CASE's 12/21/82 Brief in Opposition to the NRC Staff's Exceptions to the Atomic Safety and Licensing Board's Order Denying Reconsideration of September 30, 1982, especially next-to-last paragraph on page 30 through first full paragraph on page 36). Under cover letter dated 2/15/83, the NRC Staf f issued its Special Inspection Team (SIT) Report 82-26/82-14 (NRC Staff Exhibit 207, bound in following Tr. page 6289, 5/17/83, accepted into evidence at Tr.

6402)/2/. Additional hearings were held in May 1983 and June 1983

/2/ CASE has already discussed in some detail its views concerning the

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NRC's SIT Report (see CASE's 8/22/83 Proposed Findings of Fact and Conclusions of Law (Walsh/Doyle Allegations), pages XXVII - 35 through 39), which were summed up at page XXVII - 50:

"With regard to the Walsh/Doyla allegations, CASE believes it has proven beyond a doubt that the NRC SIT investigation was tainted with an overwhelming bias in favor of Applicants, resulting in an investigative report that is neither thorough, accurate, nor credible."

CASE considers the SIT Report, which still remains in the record of these proceedings, to be an aff ront to CASE, its engineering witnesses, and good engineering practices. It is very disturbing to CASE that, although the NRC Staf f is now obviously well aware of many problems in design / design OA at Comanche Peak, it still has not disavowed the conclusions in this report.

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regarding these issues. Perhaps the most definitive single document which contains what might be terned the original Walsh/Doyle Allegations is CASE's 1

447-page 8/22/83 Proposed Findings of Fact and Conclusionn of Law (Walsh/Doyle Allegations). There were also various pleadings filed in 1983 prior to the Licensing Board's 12/28/83 order in which the Walsh/Doyle Allegations were discussed. The Board's 12/28/83 Memorandum and Order l (Ouality Assurance for Design), LBP-83-81 18 NRC 1410 et seq., went into l

detail regarding some of the Walsh/Doyle Alle/ations, as did the Board's 2/8/84 Memorandum and Order (Reconsideration concerning Quality Assurance for Design). The Board, in its 12/28/83 Order, expressed additional l design / design OA concerns, and called into qunstion the design of the entire plant. (And as Applicants are well aware, the Licensing Board has, f rom time to time, expressed additional concerns.) The Boird, in its 3/15/84 Memorandum (Clarification of Oren Issues) in which it clarified the issues that are open in this proceeding, stated regarding the Walsh/Doyle Allegationn (page 20, item PP):

"Now also referred to as Design Decision allegations, since the Board charen many of these concerna. Obviounty a continuing, litigablu concern."

Additional details and information regarding the Walsh/Doyle concerns and allegations were contained in Applicants' now-withdrawn seventeen Motionn for Summary Disposition, CASE's answorn thereto, and additional rnlated pleadings during 1984.

All of thana basically constitute the original Walsh/Doyle A11egationn.

Additional concerns were rained by Hosnre. Doyle and Walsh during the February 1984, April 1984, and May 1984 Kaarings on the Cygna Report. There 6

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have also been many discussions of the Walsh/Doyle Allegations and other design / design OA concerns during many meetings (several meetings during 1984, as well as the 2/7/85, 2/26/85, and 2/27/85 meetings, and especially the 3/23/85 CASE /NRC Staff meetings come imamediately to mind). During one of those meetings (CASE cannot recall exactly which one at this time) the Walsh/Doyle Allegations were said to include all the information contained in the six boxes or so which the NRC Staff's Paul Chen carried around with him all the time. In short, the Walsh/Doyle Allegations consist of all of the testimony, Motions for Summary Disposition and related pleadings, and all other discussions regarding same which have transpired in those proceedings. All of the preceding could be considered to be Walsh/Doyle Allegations, including (under a broad interpretation) design problems with cable tray supports, and the design of the control room ceiling (although they have not yet been addressed specifically in hearings), since questions regarding them were initially raised by Messrs. Walsh and Doyle.

I In a broad sense, it might even be said that the identification of all design / design OA problems at Comanche Peak stemmed f rom the identification of the Walsh/Doyle allegations, since neither Applicants nor the NRC Staff had recognized and/or acknowledged to the Licensing Board that any potentially significant design / design OA problems existed prior to the Walsh/Doyle allegations (and for some time thereaf ter). For example, the NRC Staf f has still never disavowed the conclusions contained in its SIT report, which included in its " Summary and Conclusions" statements such as the following (Report at pages 6 and 7):

"Mr. Walsh and Mr. Doyle made numerous allegations of widespread design deficiencies in the design of pipe supports at the Comanche Peak plant.

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. . . The Special Inspection team looked not only at the specific supports alleged to be defecttve but also into reisted design practicer in some 19 broad areas encompanding the Walsh/Doyle concerns.

"The Special Inspection Team fcund in some 12 of these broad areas . .

. that the concerns alleged by Walsh and ?>oyle were not substantioted. '

In 6 of these broad arean . . . Some aspects of the concerns expressed by Walsh and Doyle had also been identitie,4 by the Applicant during tne course of its design review processes and tne problems have been or are being rectifiedt other aspects of the concern were not substantiated..

In one broad area . . . one aspect to Mr. Doyle's anneerns relating to the bending stress in the bolt were in part, confitned. Other aspects of Mr. Doyle's concerns in this area.werenot substantiated. None gf the concerns rained by Valah and Doyle wage euhntantiated as demonstrating serious deficioneten in the Applicant's

• pipe support design prograte." (Emphasis added.) ,

". . . the Special Irnpuction Team conducted a review of a sanpf.o of 100 vendor certified'eupports for 15 design attrib,utes which would be -

indicative of the proolems alleged by Messrs. Walsh and Doyle. The ,

purpose of this revies was to determir.s whether design de'ticiencies hed survived the Applicant's iterative design review process. The review did not discloso any discrepancies which would indicate a f ails /. of the Applicant's design varification program to identify and correct supports to assure compliance. with applicable design criteria."

This is of speci.nl concern to cal.E at this point in time because of Ote recommendation in the recent DIA Report that ". . . to determine the adequacy of plant construction it will be necessary for the NRC to rely largely on the detailed L .chnic.a1 inspections of various strue!. ares, systems and components that havi recently been conducted by the NRU nt CPSES" (Board Notification No. 86-24 Report of Investigation by the Of fice of Inspector and Auditor, page 45, sent to the Board and Service Lint under cover letter 12/11/86 from NRC Staff'ri Mr. Noonen). If the time tran.e of the SIT Report is considered to be "recently," CA34 certainly does not hitieve any credence should be given to the SIT Report to atteipt to i,ove that Comanche Peak is e

licensable. In CASE'n opinion, ft le well past rne time that the NRC' Staff stopped trying to dainnd that Report and disevosad its conclu sione.

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Thus, although the NRC Staff's SIT Report has been the subject of l considerable pleadings and discussion regarding the Walsh/Doyle Allegations, tha reliability of its conclusions has now been destroyed (which was conf [irmed'by-theOIAReport,andasdiscussedbelow).

It le especially gratifying that Applicants (Stone and Webster), during

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arch 12 through 14, 1987, meeting with CASE's at-this-time non-

testifylut,witnes's Jack Doyle, finally have publicly acknowledged that many of the

"Walsh/Doyle Allegations" are indeed valid concerns, and that Applicants appear to now be beginning to take appropriate action regarding many of the original Walsh/Doyle allegations.

CASE looks forward to continuing the less formal process begun with the March 12 tt. rough 14 meeting and to further discussions regarding design / design OA problems at Comanche Peak. It should be noted that, dependir.g ur[on the response by Applicants to the many problems at Comanche Yeak, such,pNeeds may help to resolve some problems and lessen or alleviate the need for extensive hearings on some issues. It should also be noted, however, tMt there may be additional Walsh/Doyle and/or CASE concerns and/or ali,:3ations in thy future. All of this has yet to be determined.

Further, regardless of whether the concern is called a Walsh/Doyle

, Allegation, a Design Decision allegation, or whatever, CASE has always been concorr.ed not just with Applicants' initial plan (as set forth in the FSAR) or any subsequent plans (including the CPRT Plan), but with the implementation of those planst we are also concerned with things such as how and why Comanche Peak .:asie to be in the unlicensable condition it was (and still in) (i.e. , root cause), management's role in the problems and the

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$ff manner'in which management dealt with them, and the generic implications of~

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% all of these things. These continue to bE CASE concerns.

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o CASE has not sat down and made a more, detailed breakdown of the 7 Walsh/Doyle Allegations than as indicated in the preceding, and the preceding

,(as mentioned previously) is based on our best recollection'at this time without engaging in extensive research; it does not purport to be complete.

CASE has attempted to respond, to Applicants' interrogatories in a reasonable' fashion and within the realm of reason, to the extent possible without i /

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, severely prejudicing CASE's rights. Obviously Applicants have no right to

, force CASE to prepare such a breakdawn in order to re'spond to Applicants' Interrogatories, and CASE would object to having to do so. (Further, we note that if Applicants do not yet know what the Walsh/Doyle allegations encompass,' they are in worse shape than we had thought.)

< The information provided is, CASE believes, sufficient to identify to t' ,

Applicants with reasonable and sufficient specificity what CASE believes the

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Walsh/Doyle Allegations are or could be construed to be. We note, however, that CASE's concerns regarding the design / design 0A of Comanche Peak are not necessarily bounded by the original or current Walsh/Doyle Allegations. To tg the contrary, we are concerned about the design of the entire plant (although we do not know at this time which, if any, additional areas we will be pursuing in hearings).

. Applica'nts' Interrogatory 2:

"For each and every one of what CASE contends are 'Walsh/Doyle issues' and/or 'Walsh/Doyle allegations', please cite to the transcripts (by date and page numbers) and/or reports (by volume 4.

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and page numbers) and/or unpublished decisions (by tribunal, date and NRCI number) where each such issue or allegation was raised, litigated, adjudicated, defined or described."

Objection:

CASE objects to Applicants' Interrogatory 2. Not only is it objectionable on its face, but CASE would further object to having to research the record more thoroughly than we have voluntarily done in the preceding. The record of these proceedings (not to mention the large body of information, such as the NRC Staff's SSER's, which are not yet but are likely to be in evidence at some point in time) is huge and complex; and Applicants' own past performance, both in and out of hearings, is one of the primary reasons it is. Applicants are privy to the record of these proceedings just as CASE is. CASE has already frequently found itself in the position of having our witnesses, in effect, function in the capacity of unpaid and unthanked consultants on the many detailed technical design / design OA issues in these proceedings. It is bad enough that

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Applicants, through the many years of these proceedings, have fought CASE and. Messrs. Doyle and Walsh to avoid having to admit and deal with what have now finally been admitted are valid design / design 0A problems. Now Applicants add insult to injury by attempting to force' CASE to do Applicants' legal research for them as well (again, in effect, having CASE y'

function as Applicants' unpaid and unthanked legal consultants).

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Applicants' Interrogatory 2 is clearly contrary 10 CFR 2.740(b)(2),

I which states, in part:

". . . Trial preparation materials. A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (b)(1) of this section and prepared in anticipation of I 11 i

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4 or for the hearing by or for another party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a~ showing that the party seeking discovery has substantial need of=the materials.in the preparation of this case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the presiding officer shall protect . against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding "

Applicants have' made no attempt whatsoever to make any showing as required in 10 CFR 2.740(b)(2); and indeed, they cannot. Applicants' Interrogatory 2 runs afoul of 10 CFR 2.740(b)(2) for two obvious reasons:

(1) Applicants have the same access to the record of these proceedings as does CASE (probably in more readily available form due to computerization);

and '(2) information such as that requested by Applicants would be prepared, if at all, as trial preparation materials, and would thus not be

' discoverable. Further, such materials would necessarily disclose the mental impressions, conclusions,' opinions, and/or legal theories of CASE's representative con etning this proceeding. CASE has been generous in this regard in the answers contained in this pleading. However, there is a limit to our generosity, and Applicants have greatly exceeded it with their i

Interrogatory 2. CASE strongly objects to Applicants' blatant attempt to l contravene clear and explicit NRC regulations of which Applicants are obviously very well aware; and we move for a protective order against this and any future such deliberate attempts to steal CASE's resources of time, energy, and personpower by our having to respond to interrogatories such as this.

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Answer:

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Without waiving the above objections, but rather expressly relying upon same, CASE has gone into some detail already in our answer to Interrogatory 1 preceding; we would object to providing any information in addition to that response. We note, however, that we_will be reviewing those items discussed during the March 12 through 14 meeting after we receive a copy of

.the transcript, and will be back in touch with Applicants further regarding those items, as and to the extent indicated during the meeting. To answer Interrogatory 2 in more detail than is already contained in our response to Interrogatory 1 at this time would require CASE to prepare analyses that, at least for now, it would not be preparing. Applicants are of course not entitled to require CASE to create documents or do analyses merely to answer discovery. See Applicants' 7/28/86 Responses to CASE's 6/30/86 Interrogatories and Request for Documents and Motion for Protective Order,

p. 8; and Applicants' 12/12/86 Response to CASE's " Motion to Compel Answers to Sets . 3-7," p. 5.

Applicants' Interrogatory 3:

"For each and every one of what CASE intends are the 'Walsh/Doyle issues' and/or 'Walsh/Doyle allegations', please state whether CASE believes the issue to have been satisfactorily resolved, in whole or in part, by the activities being undertaken by the Applicants. If in part, identify the part(s). If not satisfactorily resolved, state all the reasons why CASE contends it has not been satisfactorily resolved."

Objection:

CASE objects to Applicants' Interrogatory 3 on the grounds stated on pages 1 through 4 of this pleading.

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Answer:

-Without waiving the preceding objections, but rather relying expressly upon them, CASE offers the following additional information. CASE has not yet made' the determination requested by Applicants. Complete and adequate responses to CASE's Interrogatories to Applicants would help allow CASE to develop its position in this regard, and CASE's answer to this Interrogatory is dependent in large part upon Applicants' responses to our Interrogatories. However, CASE can state preliminarily that (based upon answers to our Interrogatories by Applicants) it appears that Applicants may not plan to adequately address CASE's concerns regarding lack of prompt identification and correction of problems, management's role in the development and exacerbation of the problems, and generally Applicants' ascertaining how design / design QA came to be in such a mess. On the other 4

hand, however, CASE must state that it was also encouraged by the progress which has been made to date in some areas, specifically regarding those design issues discussed during the March 12 through 14 meeting, and we look forward to a continuation of future such meetings, as was proposed and planned for at that meeting.

i CONCLUSION Once the relevant discovery by CASE is complete, and CASE has completed its analysis of the data, CASE will, as it has in the past, be stating most of its position and bases in the form of appropriate pleadings. We have already voluntarily gone beyond what might normally have been required, in order to do so in this pleading to the best of our ability at this time. If at that later time such pleadings are not filed, but CASE has completed its 14

analyses, Applicants can at that time, but not now, file discovery requests which will of course be subject to the normal objections as to relevancy, inappropriate inquiry of experts, attorney work product, and the like. In addition, to the extent CASE's pleadings disclose positions and bases not previously know to Applicants, we will be generous in allowing Applicants sufficient time to respond to the pleadings, provided the delay is not so long as to prejudice CASE's rights. In short, when the time is ripe, Applicants will receive the essence of that which they now seek, to the extent it would ever be discoverable, and CASE should be permanently protected from having to further answer the present requests. At the appropriate time, Applicants can file new discovery requests to address the questions to which it is entitled to have answers.

On numerous occasions this Board has assured CASE that, once CASE receives data from Applicants, particularly given the delay in producing the data, CASE will have sufficient time to analyze the data, conduct discovery i

on the data, and develop positions. Requiring additional responses to Applicants' Set 1987-7 beyond what has been voluntarily provided herein would directly conflict with that Board assurance, and CASE should not be required to respond further to any of the discovery.

l Respectfully submitted, A- $/ i J

.~) Juanita Ellis, President SE (Citizens Association for Sound

Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 l Filed

March 23, 1987 l

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