ML20236J398

Transcript of 871103 Prehearing in Dallas,Tx.Pp 25,139- 25,156

ML20236J398
Person / Time
Site:	Comanche Peak
Issue date:	11/03/1987
From:	Atomic Safety and Licensing Board Panel
To:
References
CON-#487-4803 OL, NUDOCS 8711060051
Download: ML20236J398 (20)

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O U'NLL ED STATES 1 NUCLEAR REGULATORY COMMISSION 1 s.n..st. m a s. c a m m.a u m......m u n s.. m u mm m m..m.z u m = = = = a m m =m = = = u m= u.u==u...m u.u zu m m u m m = = = 2 ='l IN THE MATTER OF: DOCKET NO:

SPECIAL PREHEARING CONFERENCE 50-445-OL '

50-446-OL 1 COMANCHE PEAK STEAM ELECTRIC STATION, UNITS 1 AND 2 j

O 1 G \'A i i LOCATION: DALLAS, TEXAS pAGES: 25,139 - 25,156 DATE: NOVEMBER 3, 1987 i

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.i 25139 jlh' 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2 BEFORE THE ATOMIC SAFETY & LICENSING BOARD 3

SPECIAL PREHEARING CONFERENCE : Docket Numbers i 4  : 50-445-OL l COMANCHE PEAK STEAM ELECTRIC  : 50-446-OL 5 STATION, UNITS 1 and 2  :

6 Sheraton Dallas Hotel & Towers 7 Gallery Ballroom 400 North Olive Street 8 Dallas, Texas 9 Tuesday, November 3, 1987 10 The Pre-Hearing Conference met, pursuant to notice, 11 at 9:00 a.m.

12 PANEL OF ADMINISTRATIVE LAW JUDGES:

13 O 14 THE HONORABLE PETER B. BLOCH THE HONORABLE KENNETH McCOLLOM THE HONORABLE WALTER JORDAN 15 APPEARANCES 16 On behalf of the Applicants:

17 WILLIAM S. EGGELING, Esquire 18 ROBERT WOOLDRIDGE, Esquire Ropes & Gray 19 1001 22nd Street, N.W.

Washington, D.C. 20037 20 On behalf of the Intervenor 21 Citizens Association for Sound Energy (CASE):

22 JUANITA ELLIS, President 23 Citizens Association for Sound Energy (CASE) 24 1426 S. Polk Dallas, Texas 75224 25 O Acme Reporting Company (202) 628-4888

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. APPEARANCES.(Continued): .

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.On behalf of the:Intervenor-

~3 Citizens-Association for Sound Energy (CASE) (Continued):

- :4 BILLIE P. GARDE, Esquire 5 .104.E. Wisconsin' Avenue -B  :)

Appleton,' Wisconsin 54911-4897 ,

't ANTHONY Z. ROISMAN, P.C., Esquire) i 7 '

Cohen, Milstein & Hausfield 1401 Nek. York Avenue, N.W.  !

8 Suite.600  !

Washington, D.C. 20005 1

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-On: behalf of the Nuclear Regulator _y 10 Commission Staffa l l

11 JANICE'E. MOORE, Esquire

" JOSEPH RUTBERG, Esquire ~

12 Office of General Counsel-  !

United States Nuclear' Regulatory Commission

. 13 . Washington, D.C. 20555

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25141 g 'l PROCEEDINGS 2 JUDGE BLOCH: Good morning. We expect this to be a 3 brief session,-under an hour. At the end of that time, we 4 would like to ask applicants if they could give us a brief tour 5 of the document room so we can see how it's organized, see 6 what's in there.

7 MR. EGGELING: I will certainly arrange whatever can 8 be done, yes, sir.

b JUDGE BLOCH: Thanks. Before we left Jast night, I 9

10 asked the parties if they could clarify for us the relationship 11 of an inspection document, 87-1987-15, to the progress of work 12 on the project status reports, whether there is any 13 relationship there.

14 MR. EGGELING: If we understood the question, Your 15 Honor, the inspection report that came out will not effect the 16 . project status reports that have been issued. Those inspection 17 reports, obviously, they are communicated somewhat before they 18 are in print. As I said last night oft the record, we had 19 knowledge of it. We studied the things the NRC found and did 20 not believe they effected that work and therefore those were 21 issued. Any other inspection reports, the normal expectation 22 would be that if they effect a PSR in progress, what.ever ef fect 23 is made, that will be taken into account and they won't be 24 published essentially until they are satisfied.

25 JUDGE BLOCH: Okay.

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25142 (Pause.)

1 2 The Board deliberated last night over what to do 3 about the schedule and we'do have some remarks to make by way 4 of rough scheduling. And we will expect comments from the 5 parties on our rough ideas by next Tuesday so that we can issue 6 a formal document shortly after that.

7 The schedule is adapted from the one that the staff 8 submitted. For the purpose of that schedule, we expect to 9 assume, unless shown otherwise in the course of the hearing, 10 that there has been a historical QA design and QA construction 11 breakdown.

12 A result of that, of course, is that the use of the 13 historical QA programs to demonstrate the current safety of the 14 plant would be very carefully examined. In addition, we will 15 be looking for the kind of clarity concerning the safety of the 16 -- excuse me. Yes, concerning the safety of the hardware as a 17 result of QA reinspection, QC/QA reinspection at this point.

18 The same kind of clarity that is possible with design documents 19 and that was accepted in the Diablo Canyon Case.

20 So, working now from the staff's proposal for 21 litigation schedule, we would use the trigger date statement, 22 date 1, the way it is so that it would be keyed to the 23 collective significant report. and project status reports.

24 I think it has to be understood that for each of the 25 project statuo reports that the trigger occurs for that entire O Heritage Reporting Corporation (202) 628-4888

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( [j ' 1 area of interest including the predecessor reports.from the 2 ' prior documents prepared by the applicants under the CPRT d 3 program and whatever other documents are relevant.

4 For examplo, on large-bore piping, well, we will have i 5 a trigger immediately, but it occurs to me that the Cygna work

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6 which will be dono shortly also would be a part of the

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7 large-bore piping considerations.  !

4 8 So, what we are going to try to do is trigger things 9 in groups that are related to the project status reports. The j 10 fact that the Cygna report would come after the project status 1

11 .roport will not delay the start of discovery, however. So,  !

12 discovery against applicants commences immediately as soon as j I

. 13 the project status reports are received.

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\ ~ 14 However, the discovery against applicants and staff i 15 will continue until 20 days after the safety evaluation report 16 of the staff.

17 We expect that CASE will be in communication with the 18 staff well before that so that it will not be surprising the 19 staff with its concerns. So, that is kind of a good will test. l 20 Wo expect that the issucc that CASE sees will be surfaced early 21 rather than waiting. But discovery would remain open until 20 22 days after the staff files its safety evaluation report.  !

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23 Ten days after discovery is closed, CASE will file a 24 notice stating whether it wishes to contest all or portions of 4

25 the particular report and the related reports. And it should )1

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() 1 specify what it wishes to contest with clarity so that we 2 understand what is being contested and should make a brief )

3 statement of the reasons it intende to rely on and some 4 statement of the basis for challenging that particular area. ,

5 Twenty days following that, applicants and staff will 6 have an opportunity to file a motion that would either limit, I

7 that would seek to either limit or dismiss the areas that have i 8 been specified. Obviously, if staff and applicants decide 9 faster than that and they're not filing such a motion, they can 10 accelerate the schedule by giving notice to-the Board and the 11 schedule will take off from that point as opposed to waiting  :

12 for the motions.

13 So, therefore, Phase 3 in the schedule filed by.the

\~/ 14 staff, Phase 3, which is on page 2, begins either on_the day .

15 that a motion is determined with respect to the particular f 16 issues that have been specified. So, it is the completion date f 17 on resolving the motion or it begins on the date that the Board 18 is notified by the staff and applicants that there is to be no 19 challenge to that particular issue, to the legitimacy of it, to 20 the litigation of it.

21 And then Phase 3 would go -- our rough schedule is 22 that Phase 3 would go much as the staff suggests: 30 days 23 after the beginning of Phase 3, direct testimony filed by all 24 parties. 45 days, rebuttal testimony, if any, tiled by all 25 parties. Parties identify and provide to all other parties

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-( ms-) 1 exhibits and documents or any other materials intended to be l

.2 used in cross-examination. And on Day 60, it would be the 3 earliest date for commencing a hearing on that issue. i i

4 I would like to ask the staff: Is Phase 4 exactly j 5 what is provided for in the rules or does it vary from the 6 schedule that the rules provide? -f 7 MS. MOORE: I think it follows, I believe it follows 8 the . times in the regulations.

9 JUDGE BLOCH: Okay. So, our schedule that we intend 10 to promulgate will follow the schedule on the regulations j l

11 .unless the parties' comments persuade us otherwise.  !

12 I would like to know if any of the parties have i 13 noticed as we're talking whether we have omitted something

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V -14 important that ought to be included in the rough schedule?

i 15 MR. EGGELING: Two clarifying questions that in the  !

16 past have caused problems, but I think the various proposals l 17 have attempted to deal with it.

18 First, very simply, do " days" mean business days or 19 calendar days in the staff's schedule? The second is, on 20 discovery: ... will continue until ... Does that mean last 22 day for serving a discovery roguest or the day upon which all 22 discovery responses have to be received. The difference 23 between what that means is always a problem, depending upon 24 whose ox is being gored at a particular time. I think it ought 25 to be clarified, so when we comment on it by next Tuesday, we b v Heritage Reporting Corporation (202) 628-4888

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will know whether we have any problems with it.

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2 JUDGE BLOCH: Well,.I would say, first, that we would i

'3 like it to be calendar days, but if it falls on a weekend, we 4 will go to the next business day. If the period ends on a 5 weekend or on a holiday, we will go to the next business day.  !

6 And we would like the responses to be received by the j 7 end of the period, which means that the filing date has to be 8 automatically adjusted to an earlier time in order to do that.

i 9 MR. EGGELING: And, therefore, the purpose --

10 although, the responses, the statement will be that the 11 responses have to be received by, that carries with it an l 12 implicit obligation of to the propounding party to serve their 13 request within the times specified in the rules so that a 14 responding party's time is not shortened.except upon motion for f 15 good cause showing, which presumably somebody.might come in and 16 ask you to.

17 JUDGE BLOCH: That's correct.

18 MR. EGGELING: Am I basically capturing the idea? .

19 JUDGE BLOCH: We haven't handled the obvious problem 20 that will occur if there is a motion to compel because the l

21 response --  !

22 MR. EGGELING: Well, I submit that is difficult to 23 handle. Sorry.

24 JUDGE BLOCH: Any other comments on the rough 25 schedule?

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-25147-t, i l' MS'.. GARDE:: I have a: quest' ion.on your clarification '

on? disco.very.

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J3- LJUDGE BLOCH: Yes.1 h ;41 MS. GARDE: ~Am I correct in understanding.that!the- ,

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L 5' discovery.begins on;.the day that the PSR isiout..'for the PSR and R 6' jall relatedjor conne'cted documents, whether they are results: ,

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,4 7 .. reports,. original QA/QC documentation, et' cetera?

~ 8~ I JUDGE 'BLOCil: Yes.-

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.And that'we have until.'20 days after the

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10 staff issues:its;.SSER to-f11e discovery requests?

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11 JUDGE BLOCH: That's correct.

1 12 MR.,EGGELING: No, Your. Honor, 1

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JUDGE BLOCH: No. That's-correct. No,, excuse me.

1 114- 'That'sjright. 1ItJis'10 days before that because there.-is:a- q 15 '10-dayc response' period. But it will --the. period ends 20 days- l 1

.16l after.

.17 MS. GARDE:--Are you saying that.we'only'have.10Jdays G 18. after the SSER is issued-to analyze it and write our. discovery

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19  ; questions?  :

20- JUDGE BLOCH: Yes. And if that becomes a problem for d 21 you, we expect that you may be talking to the staff in between, 22 you will, move for an extension. That's all that will happen.1'  !

23 MS. GARDE: All right. Ms. Ellis has a question.

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24 MS. ELLIS: I just want.to be clear. Is it the.

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, .:'ll .rulingLregardin'g"the historical 1 breakdown means thatfneither 2; .theLapplicants.nor;the st'aff-will have to' respond to CASE's .;

13- prev'iously. filed' motions for-summary disposition? 'i i

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'4 . JUDGEJBLOCH2- .What we would like'yousto dolis to' <'

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J5 consider the present status of the case as to.whether-you: *j 6: consider that motion still'.to be applicable. And, .if you.do, i L7- and'you want'to refile it, you may. But we are going..to count 8 on you'in-good faith'to know what the-current status'of the ~ l 9 record is. .

10 There has been.a lot that in fact h'as-been doneTin 11 response to those motions. There is.no question'in my mind'  !

12 they'have had an impact on what'has happened. But I~am:not.aure .

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13 that'they are current. ;I wouldslike;you to'be sure that tney_ l fy k/ 141 are current before you decide to say that they'are.re. filed.

15 - MS. ELLIS: When you say refiled, do;you mean~~that we

16. have --. you don't mean'we' physically have to-refile them? l :

17- . JUDGE.BLOCH: No. . You could, -if ycru wanted to, state' I

.18 that you'are filing it.now.' I haven't looked at it in some.

1 19 time.  !

20 MS. ELLIS: Neither have I, actually.

l 21 JUDGE _DLOCH: And my thought is that at this point it 22 might be entirely inappropriate, but I would want you to look 23 at it from that standpoint yourself, because you are free:to 24 file motions for summary disposition at anytime.

25 MS. ELLIS: Thank'you.

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() 1 JUDGE JORDAN It is my recollection that the 2 motions, Respondent's position is that there has been a 3 considerable change in tho' situation since that time and that 4 you would want to make some changes.

5 MS. MOORE: Your Honor, I still have several 6 questions. Tne firFt goes to the discussion we just had on 1

7 discovery. Is it my understanding that the response dates in 8 the regulations then don't apply for interrogatories?

9 Specifically, the response dates in the regulations for j 10 interrogatories would be 14 days which would, under the i

11 20-day limitation cut CAGE's time to something like 6 days.  ;

12 JUDGE BLOCH: We are going to stay with the 14' days.

13 'It does sound like that 20-day time period does seem too short.

, ,n kl 14 So, that is one of the comments I am sure we will receive. We 15 may adjust that.

16 MS. MOORE: Okay. The second point was that in our 17 remarks yesterday, the staff pointed out that we did not 18 contemplate when we wrote this schedule going to hearing before 19 the issuance of the collective significance reports on any one 20 of the PSRs. Are you -- is this schedule saying that we could 21 possibly go to hearing before the issuance of the collective 22 significance report?

23 JUDGE BLOCH: I guess I would like to add: My 1 24 impression from the applicants was that that is not a 25 substantial risk. Am I right about that?

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{ ), 'l MR. EGGELING: It is certainly our belief,:Your q 2 Honor. I haven't run this calendar out, but.what I know about 3 collective significance dates and;what I know about.the 4 discovery periods in the previous schedules, which I did run 5 out, they always-tended to overlap and they would be out and l 6 available. Whether your schedule has changed that, I'd have to 7 do some calendar counting, et cetera. But I don't think it 8 would as our current belief is to the issue date of collective 9 significance.

10 JUDGE BLOCH: Okay. If there is a problem on the 11 inter-relationship there, we would like to have a comment about 12 that.

13 MS. MOORE: Thank you. That's all I have, Your l}.

%/ 14 Honor.

15 JUDGE BLOCH: Okay. I would like to recomment on 16 CASE. Dr. McCollom pointed this out to me. -With respect to 17 specific PSRs, the time period for motions on the issues is

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18 also'a time period in which a summary disposition motion could 19 be filed either for or against that issue. If you felt that 20 you could substantiate a summary disposition motion, either to 3 21 have the motion decided on summary disposition in your favor or 3

22 on the other party thinking it could be decided in their favor, 23 that could be filed in the time provided for motions.

24 MS. GARDE: What you just said impiles that we have 25 already received the staff report, we've finished discovery, Heritage Reporting Corporation (202) 628-4888

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, 3' Lwith those' issues..and we need more time to write.aisummary

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.., 51 issues, we would.get-back;to the parties and.the Board and say, y

j.j 16 "This is-how we want to-handle this issue,"

7- . JUDGE:BLOCH: 'If.you can' file it within'10' days', . It -

8 is already part of the; schedule. If:you need more time,;.you-.

9' will ask.for an~ extension. :But the reason we~put that there: ,

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~10 and it was in response'to Ms. Ellis' comment about'the old' j

, a 11 summary dispositions. We don't'want to re-do those right now,, 'i 12 but rather wait until'all' of this other evidence is.'in and:sec.

13 if there is anything that is still valid. ,q

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14 I would like to comment'about written' procedures for- .

15 disposing of issues because I strong believe they are. 1y 16 important. I know that CASE feels that when they filed-summary' 17' disposition motions and when they worked on the written motions' l 18 that the applicants filed that that did not-work wellffor them.

19 .The Board's view is the opposite: that it. worked i j

20 well for everybody. And that in fact there.were extensive 21 technical issues on which written documents were filed and'for 22 which no hearings ever were necessary and, yet, the truth about 23 those documents became known and the proper action was taken.

24 So, I would just like the parties to consider the  :

25 possibility that where there are technical issues, particularly

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-ss 1 technical issues.that do not hinge on the credibility of 2 individual witnesses, that a fu13 filing before the Board could I

3 set the stage for a decision that would not require hearings.

f 4 That is particularly useful if there is going to be a gap . )

5 between hearing dates, because we can decide things during that 6 time. And if the Board needs some kind'of oral briefing or if l 7 it needs some kind of evidentiary presentation, we are not 8 going to decide it feeling that we don't have a knowledge of i

9 what is going on. We will ask for it for our purposes so that ]

i 10 it will be decided fully and fairly-.

11 I would just like the parties to consider the 12 possibility that no particular party is either helped'or )

i 13 hindered by deciding things in paper rather than after oral ]

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'/ 14 argument. 1 15 MS. ELLIS: I guess our concern was that until now 16 there really has not been a tangible ruling and that was one of ,

i 17 the things that seemed to be lacking to us all this time. Now 18 that the Board has made the ruling they have, that helps l 19 JUDGE BLOCH: Thank you. j e

20 MS. MOORE: Your Honor, may I ask one more clarifying  !

2 .1 question? The dates in the schedule, are those filing dates or j 22 received dates? The staff, I believe, in its schedule said 23 they would be received dates. And I didn't -- l i

24 JUDGE BLOCH: We said they would be received dates.

I 25 That's done by -- it will take a day off the 14 days, but it s

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.o .. . , 1 2, earlier then:it is the received date.

"3- MS. MOORE: Okay.-

'4 JUDGE BLOCH: The rough suggestion the Board-is' 5 < making right is that they..are received dates. But because of l l '

6 the fact.that the. parties are more~ aware of;the mechanics of

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7 litigation than~I am as. chairman, Itwould rather.that.we'get. .

a 8 comments of that kind and that's why we have been-discussing;1t .}

.q 9 here. d 101 MS. MOORE: .Thank you.- q 11 JUDGE BLOCH: I would~like.to state what is. obvious f 1

-12 to.anyonoLwho h'as thought about the place of:a proceeding like l 13 this in the history of:a nuclear power plant. I would just' 1

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14' like to acknowledge the fact that three judges-looking at a j 15 ' project of this massive. size.are very 11mited11n theiri ability , l 16 to learn'and to decide. .And weIhave' procedures-for deciding 1 what the: issues are that we look at.

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. . .1 18 Weiare fully aware that the safety,of.this~ plant 1 19' depends on many' individuals who we will never see and many 20 individuals who-will never testify. And I would just-like to j i

21- express my personal gratitude'for all of the effort of those I

22- ' people working for the applicants and for the staff and for i l

L 23 CASE. Because the hearing is only a small slice of what goes 'I L 1 it . -  !

24 ' into the. determination of the safety of a power plant. And I 1

-25 am very appreciative of the importance of the work on this 1

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v 1 ' plant for all of the people whose lives.are involved in it. -

J 2 We asked for current estimates on fuel-load dates. '!

3 MR. EGGELING: Yes, you did, Your Honor. The )

4 estimates derived from the applicants' scheduling tools, you 5 are I am sure very familiar with the construction scheduling

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6 methodologies, et cetera, that try to predict things. The 7 current official fuel-load date, based on that schedule, is 8 March 1, 1988. The schedule is showing currently negative l 9 about 115 days, which puts it in early August of 1988. But I l 1

10 am told that it is expected that we will recapture some of 1

11 those days.

12 JUDGE BLOCH: So, cummer of 1988 or late spring is

13. the current best estimate? .

Q'v 14 MR. EGGELING: I guess, depending -- I would prefer

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15 to keep it within the technical description because best 16 estimate, et cetera, becomes fairly subjective. There is a 17 tool and everyone knows what its limits as well as its use are. f 18 JUDGE BLOCH: My knowledge of scheduling is that it 19 is fairly subjective no matter what the tools.

20 MR. EGGELING: You may well be right, Your Honor.

21 JUDGE BLOCH: I would like to briefly discuss the f 22 Doard's reaction to the motion for reconsideration that 23 Mr. Hoisman filed. I regret that he is not here, but I know ,

24 that his good friends are listening for him.

25 Mr. Roisman filed a very simple motion which was to i p

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I withdraw his representation for Meddy Gregory. And we 2 acknowledged in our previous order that it is obviously an  ;

3 emotional issue for him as well as a legal issue, but we do not 4 _ want a motion of that kind to become an occasion for litigating 5 alleged wrongdoing by some other person. And we don't think  ;

6 that it is relevant to withdrawing from representation of that 7 person to be arguing about the wrongdoing of another firm or 8 individual.

'9 We expected that a motion for reconsideration would 10 address what we said about that. And it did not. And so now 111 we affirm the initial decision for the precise reasons we 12 stated and we strike any further comments that Mr. Roisman made 13 about the same firm.

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\- 14 In addition, we will permit a filing by that firm, if 15 it so chooses, and that filing will not be considered or acted 16 on by the Board, but the filing would be allowed just so that 17 the record could be " complete'" and it would be fair. I J

18 And Mr. Roisman will not be permitted to respond to I 19 whatever Brown & Root might say about its position because this 20 is not the proper time to litigate that issue. If it should i i

21 turn out that that issue is relevant to this proceeding, it 22 will be fully litigated. But i. t should not be litigated in the 23 course of withdrawing from representation. j i

i 24 on the project status reports, we don't want to 25 receive all of them, but the chairman would like to have one j l

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. vn (s ) 1 more' copy of the large-bore report to take with him back to 6 2 Washington. Each of us is going to be looking at one report to 3 see what the general approach is.

4 MR. EGGELING: Yes, Your Honor.

'S JUDGE BLOCH: Is there any other necessary business f

6 before we adjourn?-

7 -(No response.)

8 There being none, I would like to thank everyone for 9 their attendance-and their participation and we are adjourned 10 without any particular resumption date.

11 (Whereupon, at 9:25 a.m., the hearing was adjourned.)-

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'f CASE TITLE: Special Prehearing Conference -

f i 1 Comanche Peak Steam Electric Station I ;l 5 HEARING DATE: November.3, 1987 J

6 LOCATICN Dallas, Texas g

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. I hereby certify that the proceedings and evidence 8

are contained fully and accurately on the tapes and notes 9

reported by me at the hearing in the above case before' the United States Nuclear Regulatory Commission 11  !

and that this is a true and accurate transcript of the case.

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. /3 kJ 13 Dates November 4, 1987 f

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