ML20237G947
| ML20237G947 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 08/20/1987 |
| From: | Gad R ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#387-4286 OL, NUDOCS 8709030046 | |
| Download: ML20237G947 (13) | |
Text
.
b' 00f. [~ ir Filed: August 20,1987.
'67 /G 24 P;2:18 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of ) Docket Nos. 50-445-OL
) 50-446-OL TEXAS UTILITIES ELECTRIC )
COMPANY et al. )
) (Application for an (Comanche Peak Steam Electric ) Operating License)
Station, Units I and 2 )
)
MOTION FOR ESTABLISHMENT OF SCHEDULE Pursuant to 10 C.F.R {Q 2.730 & 2.752, the Applicants move that the Board establish a schedule for the identification and litigation of such matters l
as remain to be resolved under Contention 5. In support of this motion, the Applicants say as follows:
i 1. The Applicants filed a motion for establishment of a schedule to j deal with litigation of those portions of the CPRT program for which litigation would be required well over one year ago.1 At that time, the Applicants' proposal was opposed by CASE on the ground that the separate CPRT Action Plans were " interdependent" and therefore not susceptible as a practical matter of " serial litigation."2 Whatever validity that objection may 1
Applicants'" Motion for Establishment of Schedule," filed March 21,1986.
i 2See Tr. 24359 (4/22/86); " CASE Response to Applicants' Motion for i
Establishment of Schedule" (filed April 7, 1986);. CASE's " Response to Board Questions" (filed 5/5/86); " CASE's Motions and Response to Applicants' 4/17/86 Response to CASE's Objections to Motion for Establishment of a 0 $0046070820 M 05000445 PDR bg
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once have had,8 it is today groundless. l
- 2. The Applicants have now completed 36 CPRT Results Reports (not
]
separately counting the revision to Results Report for Action Plan . I.a.4).
l
.These include all of the Electrical Action Plans. They include all but one of J the Testing Action Plans.4 , They also include the Results Reports for numerous specific "hard ware" Action Plans . (including Concrete Compressive Strength (II.b), Valve Disassembly (VII b.2), Installation of Main _ Steam Piping (V.e), Skewed Welds (V.a), Piping Between Buildings (V.c), Fuel Pool Liner (VII.a.8), Housekeeping and System Cleanliness (VII.a.7), Plug Welds - (V.d), ' Air Gap (II.c), Pits ' Welds (V.d), Insulation and Shield Wall Gap (VI.a) and Hitti Bolt Inspection (VII.b.4)) and for numerous specific " programmatic" Action Plans (including Audit Program (VII.a.4), Periodic Review of the QA Program (VII.a.5), Administration of Inspector Tests (I.d.2), Craft Personnel Training (I.d.3), Document Control (VII.a.3), Onsite Fabrication . (VII.b.1), Material Traceability (VII.a.1) and Non-Conformance and Corrective Action Systems (VII.a.2)).8 There thus exists a substantial block of completed CPRT results that, if they are to be challenged at all, are as ready for litigation as they ever will be.
Hearing Schedule" (filed 5/27/86).
i 8See " Applicants' Response to CASE's Objections to . Motion for Es- i tablishment of a Hearing Schedule" (filed April 17, 1986); " Applicants' Response to ' Response to Board Questions'" (filed May 20, 1986).
L 4 The remaining Action Plan in the testing area for which the Results Reports has yet to be published is III.c / Prerequisite Testing"). This Results {
Reports are scheduled to be published by September 1,1987. '
8 It is worth observing that at one time at least each of these discrete topics was the subject of either contested assertions at hearings or the '
subject of " allegations" furnished to the Staff by individuals associated with CASE or its attorneys.
l
- 3. In the near future at least two additional substantial sets of CPRT or related activity will be completed: the CPRT Program Plan Appendix B global hardware and QA/QC programmatic activities, for which the Action l
Plan VII.c Results Report and CPRT Program Plan Appendix B Collective Evaluation Report are expected to be published by approximately October 1, 1987,a and the portion of the CPSES " Corrective Action Program" activities being performed by Stone & Webster Engineering Corporation and relating to i I
Large Bore Piping and Pipe Supports, and CPRT overview thereof, for which 1 i
the CPRT Results Report is expected to be published by approximately l October 1, 1987.7 In addition, the portions of the " Corrective Action eBy the same time all or virtually all of the remaining " hardware" and
" programmatic" specific Action Plans will also have been completed, so that l
" hardware" and " programmatic" matters can be disposed of as complete groups (or as complete groups save only minor items).
7This latter activity deals, in the main, with design issues. By its i terms, however, Contention 5 extends only to construction: l l
"The applicants' failure to adhere to the quality assurance /
quality control provisions required by the construction permits for
[CPSES, Units I and 2], and [to) the requirements of Appendix B of 10 C.F.R. Part 50, and the construction practices employed specifically in regard to concrete work, mortar blocks, steel, fracture toughness testing, expansion joints, placement of the reactor vessel for Unit 2, welding, inspection and testing, materials used, craft labor qualifications and working conditions (as they may affect QA/QC), and training and organization of QA/QC personnel, have raised substantial questions as to the adequacy of the construction of the facility. . . ."
See 12 NRC at 1; 18 NRC at 125 (emphasis added).
It is firmly' established that the scope of what might be litigated in this proceeding is as a matter of law bounded by the " literal terms" of Contention 5, as admitted. E.g., Texas Utilities Electric Co. (Comanche Peak Steam Electric Station), ALAB-868, NRC , Slip Opinion at 37 n.83 (June 30, l 1987); Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant),
ALAB-856, , NRC , CCH Nuc. Reg. Rptr. par. 31,004 at p. 32,166 (December 31, 1986); s.c.. ALAB-852, 24 NRC 532, 545 & n.60 (1986); s.c.,
ALAB-843, 24 NRC 200, 208 (1986); Philadelphia Electric Co. (Limerick Generating Station, Units I and 2), ALAB-845, 24 NRC 220, 242 (1986); s.c.,
Program" activities relating to Small Bore Pipe Supports, to Cable Tray Hangers and to Train A, B, and C > 2" Conduit are expected to follow shortly i
after Large Bore Pipe Supports. Not only are these major items expected to be available shortly in their own righ t, but unless other items presently litigable have been disposed of in a timely fashion, the litigation and disposi-tion of the pipe support and subsequent matters will be unnecessarily delayed pending the completion of prior items. 1 I
4.
As is set forth in detail on the attachment,s many of the com-pleted action plans have been "on the table" for long periods of time. During that time CASE has examined the Working Files for only ten Action Plans.'
ALAB-836, 23 NRC 479, 505 (1986); Philadelphia Electric Co. (Limerick Generating Station, Units I and 2), ALAB-819, 22 NRC 681, 709 (1985).As the Applicants have previously noted (" Applicants' Response to CASE's Objections to Motion for Establishment of a Hearing Schedule" (4/7/86) at 3 n.3), while they acknowledge this Board to have previously ruled that design i l
issues are also within the scope of Contention 5, they believe that ruling to be inconsistent with the applicable law and they do not acquiesce in that ruling. However, as long as CASE or issues, it the Board expects to litigate design is imperative promulgated and implemented. that orderly procedures for such litigation be devised, s " Status of Completed ISAPs, DSAPs and Results Reports."
8 Working According to records maintained by the Applicants, CASE examined the Files for the following Action Plans on 4/21/86: II.b, II.d VII.b.2, I.b.3 and I.a.4.
CASE examined the Working Files for the following Action Plans on 7/17/86: VII.a.4 and I.a.3.
8/21/86:CASE I.a.5,examined VII.a.5 and the Working Files for the following Action Plans on III.a.4.
Those remaining to be reviewed are Action Plans: I.a.1 (available 1/20/87), 11 I (available 1/5/87), Lb.2 (available 1/5/87), I.b.4 (available 1/20/87), I.d.2 (available 10/14/86), I.d.3 (available 9/16/86), II.c (available 1/20/87), Ill.a.2 (available 11/20/86), III.a.3 (available 11/20/86), V.a (available 11/20/86), V.c (available 11/20/86), V.d (available 1/20/87), V.e (available 11/20/86), VII.a.3 (available 1/20/87), VII.a.6 (available 11/20/86), VII.a.7 (available 1/5/87), Vll.a.8 (available 11/20/86), VII.a.7 (available 1/5/87), I.b.1 (available 1/5/87), I.b.2 (available 1/5/87), I.b.4. (available 1/20/87), II.c
The balance, a majority of the published Results Reports, have remained unreviewed.
- 5. It is the Policy of the Commission that licensing matters be disposed of as promptly as is reasonable, once ripe for disposition. E.g.,
Public Service Company of 7ndiana (Marble Hill Nuclear Generating Station, Units I and 2), ALAB-374, 5 NRC 417, 422 n.8 (1977). See also Statement of Policy, 13 NRC 452, 456 (1981). It is also the burden of the intervenor to determine what issues it wishes to litigate and to introduce sufficient evidence on the issue to warrant response, failing which there is nothing that will be deemed contested. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 345 (1973), rev'd. Aeschliman v. NRC, 547 F.2d 622, 628 (D.C. 1976), rev'd, Vermont Yankee Nuclear Power Corp. v. Natural Re-sources Defense Council. Inc. 435 U.S. 519, 553-55 (1978).10 It is therefore CASE's legal obligation to review and assess available materials with reason-1 I
able diligence and advis . nat if anything it wishes to litigate.11 Commis-(available 1/20/87), V.d (available 1/20/87), I.a.1 (available 1/20/87), VII.a.3 (available 1/20/87), VII.b.1 (available 3/6/87), III.b (available 3/6/87), VI.a (available 5/4/87), III.a.5 (available 5/4/87), I.a.2 (available 5/4/87), VII.a.1 (available 6/12/87), VII.a.2 (available 6/12/87) or VII.b.4 (available 6/12/87).
1 "To be sure, the license applicant carries the ultimate burden of proof.
In a ruling that has received explicit Supreme Court approval, the Commission has stressed that an intervenor must come forward with evidence ' sufficient to require reasonable minds to inquire further' to insure that its contentions are explored at the hearing." Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units I and 2), ALAB-613,12 NRC 317, 340 (1980).
Accord: Metropolitan Edison Co. (Three Mile Island Nuclear Station, Units 1),
ALAB-772,19 NRC 1193,1245 (1984); Louisiana Power and Light Co. (Water-ford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076,1093 (1983).
11 Cf. Public Service Company of New Hampshire (Seabrook Station, Units I and 2), CLI-77-8, 5 NRC 503, 539 (1977); Metropolitan Edison Co. (Three !
Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 618 (1977) (in the environmental area, intervenor required to take its position no later than j publication of the draft environmental impact statement). See also Duke Power Co. (Catawba Nuclear Station, Units I and 2), ALAB-687,16 NRC 460, 1
4
_ _ _ _ _ _ _ . _ _ _ _ . . _ _ . _ _ . _ _ _ _ . _ _ _ _ J
sion practice does not permit CASE the luxury of " requiring the Applicants to l l
put their case in" before deciding what it wishes to contest. The Applicants l therefore respectfully submit that for the litigation (if litigation be ap-
)
1 propriate and required) and disposition of these completed CPRT results to be l I
delayed so far beyond their, availability is inconsistent with the Commission's ]
l policy and requires prompt rectification by this Board.
- 6. Attached hereto is a Proposed Schedule Order which the Applictnts urge, and formally move, the adoption of by the Board.
Respectfully submitted, I
l TEXAS UTILITIES ELECTRIC COMPANY For the Owners of CPSES r'
)
Thomas G. Dignay/, Jr. ~
l R. K. Gad III / I William S. Eggeling Kathryn A. Selleck Ropes & Gray 225 Franklin Street i Boston, Massachusetts 02110 l (617) 423-6100 Attorneys for Texas Utilities Electric Company l
l 468 (1982), affd on this point. CLI-83-19,17 NRC 1041 (1983): "[A]n inter- !
vention petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable it to uncover any information that could serve as the founda-tion for a specific contention. Stated otherwise, neither Section 189a of the
[ Atomic Energy] Act nor Section 2.714 of the Rules of Practice permits the filing of a vague, unparticularized contention, fo!' owed by an endeavor to flesh it out through discovery against the applicant or staff.") (emphasis added). .
)
PR'OPOSED FORM OF SCHEDULING ORDER Day <
Event 1 Trigger date. For each of the groups of items enumerated below
(" Groups of Items"), the Trigger Date shall be the latest of (1) publication by SRT of final "Results Report," " Collective Evaluation j Report" or " Collective Significance Report" or publication by the i Applicants of the final " Generic Issues Report" or " Project Status Report," all as the case may be (hereinafter for convenience referred to simply as a " Report"); (2) issuance by Applicants of
" Notice of Availability of Working File (s)" for such Report; or (3) filing by Applicants of responses to Board's 14 Questions in respect of such Report (CPRT Action Plan Results Reports only).
I Discovery opens by CASE against Applicants on Report.
10 CASE determines whether it wishes to contend that litigation of Report must await completion of one or more other identified Report (s) and, if so, files Motion to Defer Litigation. A motion to defer based on the assertion that litigation of one Report must await the completion of other Reports shall set forth with par-ticularity (i) each such other Report and (ii) the reasons for the assertion of dependence. Responses due per Rules of Practice.
10 Staff determines whether it wishes to contend that litigation of Report must await completion of one or more other identified Report (s), or whether Staff will be unable to complete its evalua-tion of Report by Day 30, and, if so, files Motion to Defer Litigation. A motion to defer based on the assertion that litigation of one Report must await the completion of other Reports shall set forth with particularity (i) each such other Report and (ii) the i reasons for the assertion of dependence. A motion to defer based on inability to evaluate shall state the reasons for the inability to evaluate and the date by which the Staff will be prepared to i complete its evaluation, Responses due per Rules of Practice. !
30 Staff files evaluation addressing Report. Discovery opens by CASE against Staff.
40 Last date for serving discovery request (i.e., interrogatory, request for production of documents or things, request for admission or notice of deposition). Responses due per Rules of Practice.
55 CASE files notice to one of three effects: (1) it does not wish to contest Report; (2) it wishes to contest Report through cross-examination only; cr (3) it wishes to contest Report and to offer direct testimony.
In event of (I), then matters covered by the Report shall be deemed uncontested.
In event of (2), CASE shall state the specific matters which it wishes to contest and the different conclusions that it contends the Board should reach with respect to each such matter. Discovery opens by Applicants and Staff against CASE limited to matters and contentions set forth in notice.
In event of (3), CASE shall state the specific matters which it wishes to contest and the different conclusions that it contends the Board should reach with respect to each such matter. Discovery opens by Applicants and Staff against CASE limited to matters and contentions set forth in notice and matters contained in proposed direct testimony.
65 Last date for serving discovery request under foregoing (i.e.,
interrogatory, request for production of documents or things, request for admission or notice of deposition). Responses due per Rules of Practice.
85 Direct testimony filed by all parties.
105 Rebuttal testimony, if any, filed by all parties. Board establishes time and place for evidentiary hearing at earliest practicable time.
The following points govern the foregoing provisions regarding scheduling:
- 1. Groups of Items. For each of the following two groups of items there shall be a separate trigger date:
Group 1: CPRT Program Plan Appendix B (including the Results Report for Action Plan VII.c, the Results Report for all " hardware" Action Plans completed by the time the Results Report for Action Plan VII.c has been published, the Results Report for all " programmatic" Action Plans completed by the time the Results Report for Action Plan VII.c has been published, and the Collective Evaluation Report for Program Plan Appendix B).
The CPSES Corrective Action Program for Large Bore Pipe and Pipe Supports (including the CPRT Results Report thereon).
The CPSES Corrective Action Program for Small Bore Pipe and Pipe Supports (including the CPRT Results Report thereon).
The CPSES Corrective Action Program for any other topic for which the Project Status Report has been published on or before the date of publication of the last. of the reports specifically
.g.
ennumerated in this group.
Group 2: The balance of the CPSES Corrective Action Program.
Any CPRT Action Plans not covered in Group 1 SRT Collective Significance Evaluation.
- 2. Computation of Dates. All elapsed times stated in the foregoing are in units of business days, i.e , something due on day 10 means that it is due on the 10th business day after the event that triggers the obligation or opens the opportunity.
- 3. Service: Discovery. Parties may serve discovery requests by l whichever of the means authorized by the Rules of Practice they choose.
However, to avoid ambiguity, each party may designate one attorney or other representative to be its lead representative for all or any sub-set of CPRt Action Plans or Corrective Action Program topics, and the time within which a response to that discovery request is due shall be measured from the date and manner of service upon that designated representative. See 10 C.F.R.
l 2.710. A party may change its designation from time to time in its discretion.
- 4. Service: Other Papers. Each party shall designate one attorney or other representative to be its lead representative for all or any sub-set of action plans, and service of any other pleading, notice or response called for by this Order shall be made to as to be received by the designated represen-tative on the indicated date. A party may change its designation from time to time in its discretion.
- 5. Production of Documents. The foregoing order does not constrain the time within which documents for which the production has been requested may actually be inspected, provided however, that the custodian of any document may decline to produce the document for actual inspection during the ten-day period ending on the date by which that party is required or permitted to file testimony. Each request for the production of documents shall designate a specific place and time at which the production of docu- I ments is requested. Each response to a request for documents shall either (1) l expressly accede to the time and place set forth in the request or (2) designate specifically a different time, place or both. In the event of (2),
then in the absence of a different agreement between the parties the time set forth in the response shall govern unless, acting upon a motion filed within five days after thel service of the response, the Board shall otherwise order.
- 6. Modifications to Schedule. It is the intent of the Board that the foregoing schedule shall be self-executing without requiring repeated Board oversight. It is also the intent of the Board that sufficient flexibility be retained to deal with any contingencies not presently foreseen. To that end, any party may, for specific cause shown, seeks modifications to the foregoing schedule or enlargements of time for any act or event called for therein.
Parties seeking modification or enlargement shall first solicit the assent 1
s of the other parties. In the event of an . assented-to modification or enlarge-ment, the party seeking the modification or enlargement shall, promptly upon ;
obtaining the other parties' assent, notify the Board of the terms of the 1 modification or enlargement, in which case the modification or enlargement-shall be effective without further order of the Board. In the absence of assent, the party seeking the . modification or enlargement shall promptly, and in any- event not later than five days prior. to the scheduled event, file and serve a motion for relief, provided however, that no such motion shall be filed unless the assent of the other party has first been sought, and provided further, that in the response to any such motion, the objecting party shall state with specificity the reasons why assent was withheld.
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CERTIFICATE OF SERVICE
'87 AUG 24 R2 :18 I, R. K. Gad III, hereby certify that on August 20, 1987, I made service of " Motion for Establishment of S6hedule" uvv-.
by. < ;
i i
mailing copies thereof,, postage prepaid, to: R Peter B. Bloch, Esquire Mr. James E. Cummins .j Chairman Resident Inspector l Administrative Judge Comanche Peak S.E.S.
Atomic Safety and Licensing c/o U.S. Nuclear Regulatory Board Commission U.S. Iluclear Regulatory P. O. Box 38 .
Commission Glen Rose, Texas 76043 Washington, D.C. 20555 ,
Dr. Walter H. Jordan Ms. Billie.Pirner Garde Administrative Judge GAP-Midwest Office 881 W. Outer Drive 104 E. Wisconsin Ave. -B Oak Ridge, Tennessee '37830 Appleton, WI 54911-4897' Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Lawrence J. Chandler, Esquire Mrs.-Juanita Ellis Office of the Executive President, CASE Legal Director 1426 S. Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C. 20555 Renea Hicks, Esquire Ellen Ginsburg,. Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel P. O. Box 12548 U.S. Nuclear Regulatory Capitol Station- Commission i Austin, Texas ' 78711 Washington, D.C. 20555 ;
I
s t
Anthony Roisman, Esquire Mr. Lanny A. Sinkin Suite 600 Christic Institute 1401 New York Avenue, N.W. 1324 North Capitol Street Washington, D.C. 20005 Washington, D.C. 20002 Dr. Kenneth A. McCollom Mr. Robert D. Martin Administrative Judge Regional Administrator 1107 West Knapp Region IV Stillwater, Oklahoma 74075 U.S. Nuclear Regulatory Commission Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 Elizabeth B. Johnson Geary S. Mizuno, Esquire Administrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director P. O. Box X, Building 3500 U.S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission Washington, D.C. 20555 Nancy H. Williams 2121 N. California Blvd.
Suite 390 Walnut Creek, CA 94596 i
~
t a .n . . .
R. K. Gad N O
_ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _