ML20028E188
| ML20028E188 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 01/17/1983 |
| From: | Brandenburg B, Colarulli P CONSOLIDATED EDISON CO. OF NEW YORK, INC., MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20028E175 | List: |
| References | |
| ISSUANCES-SP, NUDOCS 8301210057 | |
| Download: ML20028E188 (51) | |
Text
.
1 i
q .* ;Df4ATED COPJu:SPONDc7m UNITED STATES OF AMERICA 0(X dETED WC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARDg3 g gg gg gg Before Administrative Judges:
James P. Gleason, Chairman .ii ; . .. A d /,r '
Frederick J. Shon DCCt.Gih3 a SERVICE Dr. Oscar H. Paris
)
In the Matter of )
) .
CONSOLIDATED EDISON COMPANY OF ) Docket Nos.
NEW YORK, INC. } 50-247 SP (Indian Point, Unit No. 2) ) 50-286 SP
)
POWER AUTHORITY OF THE STATE OF )
NEW YORK ) January 17, 1983 (Indian Point, Unit No. 3) )
)
MEMORANDUM IN SUPPORT OF LICENSEES' MOTION FOR EXPEDITED ORDER COMPELLING CONTINUATION OF DEPOSITION, ANSWERS TO ORAL DEPOSITION QUESTIONS, AND PRODUCTION OF DOCUMENTS, OR IN THE ALTERNATIVE, TO PRECLUDE TESTIMONY OF ROBERT WEATHERWAX ATTORNEYS FILING THIS DOCUMENT:
Brent L. Brandenburg Charles Morgan, Jr.
1 CONSOLIDATED EDISON COMPANY Paul F. Colarulli i OF NEW YORK, INC. Joseph J. Levin, Jr.
4 Irving Place MORGAN ASSOCIATES, CHARTERED l
New York, New York 10003 1899 L Street, N.W.
! (212) 460-4600 Washington, D.C. 20036 (202) 466-7000 i
I l
l 8301210057 830117 l
L
l 0
TABLE OF CONTENTS I. The Deposition of Robert Weatherwax Must be Continued to Allow Licensee Power Authority to Complete its Examination of the Witness, and to Allow Licensee Con Edison to Commence its Examination of the Witness........................... 2 II. The Deponent Must be Directed to Answer Oral Deposition Questions That Relate to the Witness' Possible Bias in this Proceeding..................... 7 III. The Deponent Must Produce Documents That Were Identified During the Deposition Because They Directly Relate to the Substance of the Witness' Testimony........................................... 10 IV. In the Alternative, the Board Should Preclude the Testimony Because UCS/NYPIRG's Counsel has Made it Impossible for the Licensees to Properly Depose UCS/NYPIRG's Expert Witness, and to Allow the Testimony Under These Circumstances Would Deny Licensees the Right to Complete Preparation of Their Case, and, Therefore, Deny Them Administrative Procedural Rights and Due Process of Law............ 14 l
i i
l
s
. I. The Deposition of Robert Weatherwax Must be Continued to Allow Licensee Power Authority to Complete its Examination of the Witness, and to Allow Licensee Con Edison to Commence its Examination of the Witness Union of Concerned Scientists /New York Public Interest Research Group's (UCS/NYPIRG's) counsel has again made it impossible for the licensees to properly depose intervenors' expert witnesses, this time Robert Weatherwax, one of UCS/NYPIRG's experts on Question 1.
On Friday, January 7, 1983, licensee Power Authority of the State of New York (Power Authority) was unable to com-plete and licensee Consolidated Edison Company of New York, Inc. (Con Edison) was unable even to commence the scheduled I
i deposition of Mr. Robert Weatherwax. Mr. Blum and counsel for the licensees had agreed to make available each party's i
California experts during one trip to California. However, l
the deposition of Mr. Weatherwax was terminated by Mr.
I Blum's refusal to insist on Mr. Weatherwax' continued avail-ability for questioning, even though Mr. Blum was able to j depose the licensees' expert witnesses at longth, and until I completion.
l On Thursday, January 6, 1983, Mr. Blum deposed three of the licensees' experts on Question 1. During lengthy tele-l phone conversations to arrange the depositions, in the 10 l
l days preceding the California trip, the licensees offered their witnesses for deposition without a time limit. In fact, the licensees expected a two day deposition of their I
s o witnesses. Mr. Blum requested that the deposition of the licensees' witnesses commence at 10:00 a.m. Mr. Blum, because of weather conditions, was approximately one hour late in beginning the deposition. The licensees, therefore, agreed to Mr. Blum's request that the deposition continue until completion, even into the evening. At the same time, Mr. Blum once again confirmed Mr. Weatherwax' availability for his' deposition on the following day.
On Friday, January 7, the deposition of Mr. Weatherwax did not commence until approximately 10:45 a.m. because of a delay in arrival by Mr. Weatherwax due to weather condi-tions. Deposition of Robert Weatherwax at 10 (Jan. 7, 1983)
(Weatherwax Deposition) (attached as Appendix 1). Immedi-ately preceding the deposition, Mr. Blum for the first time informed the licensees that Mr. Weatherwax had two meetings to attend in the afternoon. The first meeting was scheduled for 1:30 p.m., the second for 3:00 p.m. Id. at 6-7. When pressed as to when Mr. Blum learned of these meetings, he stated that he had learneC of them on the evening of Januar'y l
l 1
- 6. Notwithstanding this, Mr. Blum neither telephoned the licensees on the evening of January 6, nor telephoned them on the morning of January 7, to inform them of these meet-ings. Rather, Mr. Blum waited until minutes before the deposition to reveal to the licensees Mr. Weatherwax' " con-flict." Id. at 6.
i l
I
s s Moreover, when Mr. Weatherwax was asked when he knew of these meetings, he stated that the 3:00 p.m. meeting had been tentative for quite a while, and that it had been re-confirmed on the 6th. Iji . at 8. In addition, Mr.
Weatherwax, in complete disregard of his scheduled deposi-tion, arranged a second meeting for the afternoon of the 7th. Id. Notwithstanding these facts, neither Mr. Blum nor Mr. Weatherwax informed the licensees of these meetings until the deposition was ready to begin. Id. at 6.
Having made their expert witnesses available to Mr.
Blum for as long as he requested, the licensees insisted that Mr. Weatherwax be made available for the remainder of Friday without interruption. This position elicited offers and then a withdrawal of offers by Mr. Blum concerning some other possible arrangements that could be made. One offer that Mr. Blum made off the record at the beginning of the day and then withdrew later (by denying having made the t
( offer) was that the deposition of Mr. Weatherwax proceed I
from approximately 11:00 a.m. until 1:40 p.m., and then the licensees could return to California later in the month to continue the deposition. Id. at 85.
! Another offer was for the deposition to be recessed after only approximately two and a half hours of questioning of Mr. Weatherwax. Mr. Blum then proposed a " break" in the deposition that initially would have lasted approximately four hours, ~id. at 87, and then later was revised downward l
+ by Mr. Blum to a maximum of approximately three hours. Id.
at 93. Such a " break" would clearly have been a major dis-ruption to the questioning of Mr. Weatherwax, and, in fact, would have constituted a termination of the deposition.
Additionally, the licensees had travel plans in connection with preparations for the January 10 hearing that would have precluded the licensees a reasonable opportunity for comple-tion of the deposition under the circumstances offered by Mr. Blum.
The licensees declined this " offer" concerning the deposition and insisted upon their right to properly conduct a deposition for the day upon which the deposition was noticed and to which UCS/NYPIRG had agreed. Id. at 131-32.
The licensees continued to question Mr. Weatherwax who, at approximately 2:35 p.m., refused to answer any further ques-tions and, accompanied by Mr. Blum, left the deposition, thereby terminating it without the licensees' consent. Id.
at 136.1 Mr. Blum's and his witness' actions regarding this deposition evidence further disrespect for and flouting of the Nuclear Regulatory Commission's (Commission's) regula-
- 1. Mr. Blum discussed with Mr. Weatherwax the
" chances" of the Board denying licensees' inevitable motion to continue the deposition. After Mr. Blum advised Mr.
Weatherwax that the chances were better than 50/50, Mr.
Weatherwax apparently decided to end the deposition at 2:35 p.m.
s
- tions concerning depositions, and specifically fly in the face of Chairman Gleason's statement to Mr. Blum during a I
telephone conference on December 28, 1982, that the time required to depose a witness is under the control of the .
party taking the deposition, and that the party cannot be deprived of that opportunity except under extraordinary circumstances. Clearly, there were no extraordinary cir-cumstances here. Rather, Mr. Weatherwax and Mr. Blum decided without the concurrence of the licensees that it was more important for Mr. Weatherwax to subsequently schedule and attend a conflicting meeting with one of Mr.
Weatherwax's other clients than to be in attendance at a properly convened deposition in this proceeding.
Mr. Blum's behavior is part of a pattern of conduct in which Mr. Blum insists that the licensees and Staff follow the rules and regulations of the Commission and make their witnesses fully available to him for deposition, but denies the licensees proper access to depositions of proposed UCS/NYPIRG witnesses. This pattern of conduct is clear with regnrd to UCS/NYPIRG's witnesses Gordon Thompson, Steven Shollf, and now Robe:ct Weatherwax.1 In total, licensees
- 1. Moreover, while Mr. Blum had informed licensees earlier in the week of January 3, that Mr. Weatherwax had not completed his testimony, it became apparent through l
questioning of Mr. Weatherwax that he has not even begun to write his testimony. Weatherwax Deposition at 42, 44.
Further, Mr. Weatherwax claimed that he did not know how most of the documents upon which he stated he would rely
. were allowed only approximately two and one half hours of actual questioning of Mr. Weatherwax. Id. at 135-36.
Licensees, therefore, urge this Board to issue an expe-dited order compelling the continuation of Mr. Weatherwax' deposition pursuant to 10 C.F.R. $ 2.740(f) (1982).
II. The Deponent Must Be Directed to Answer Oral Deposition Questions That Relate to the Witness' Possible Bias in this Proceeding During the deposition, Mr. Weatherwax refused to answer any questions relating to the compensation he was receiving for appearing as an expert witness for UCS/NYPIRG.
Weatherwax Deposition at 22-25. The basis for this refusal to answer was UCS/NYPIRG counsel's objection that such information is " confidential and proprietary . . . and that it's not relevant. " Id. at 24. This objection has no legal basis.
would affect his evaluation of the Indian Point Probabil-istic Safety Study (IPPSS). In fact, Mr. Weatherwax testi-fled that he has formed no conclusions whatsoever about the Rather at Mr. Blum's direction, IPPSS, itself. Id. at 45.
Mr. Weatherwax would only answer questions which went to his
" tentative impressions." Id. at 47-48. Because Mr.
Weatherwax was provided with a copy of the IPPSS on May 26, 1982, Letter from Paul F. Colarulli to Robert Weatherwax (May 26, 1982), and further because the testimony on Question 1 was originally scheduled for filing in August of 1982, the licensees have good cause to infer that the preparation of testimony by Mr. Blum's primary expert on the IPPSS has been delayed intentionally in a further attempt to deny the licensees their rights under the discovery schedule imposed by this Board.
_t
- It is well settled that the fact that an expert witness is compensated "may legitimately be brought out. " 3A Wigmore, Evidence { 961, at 806-07 (Chadbourn rev. 1970).
" Relationships between a party and a witness are always relevant to a showing of bias whether the relationship is based on ties of . . . employment, business, [or other ties]." 3 J. Weinstein & M. Berger, Weinstein's Evidence 1 607(03) at 607-30, 607-32 (1981) (Weinstein's Evidence)
(footnotes omitted). "[T]he court did properly permit the introduction of [the expert witness'] per diem fee for testifying in order to show his possible bias or inter-est." United States v. 412.93 Acres of Land, Etc., 455 F.2d 1242, 1247 (3d Cir. 1972); see Collins B. Wayne Corp., 621 F.2d 777, 783 (5th Cir. 1980) (" cross-examination of an expert witness regarding fees earned in prior cases is not improper").
In McNenar v. New York, C. & St.L. R.R., 20 F.R.D. 598, 600 (W.D.Pa. 1957), the court allowed the defendant disco-very of the arrangements, nature, and origins of the par-ties' relationship stating that "it is [not] to be disputed that the court in its discretion may allow counsel to cross-f examine an expert witness as to the amount he has received, is to receive, or expects to receive for treatment, examin-ation or testifying, for such information has a possible bearing upon the witness's impartiality, credibility and interest in the result."
l i
i
- -~ - - - - - - . - - --
l s
. -9_
i Such an inquiry is based upon the principle that dis-covery which relates to impeachment, particularly that which t
reflects possible bias, is reasonably calculated to lead to the discovery of admissible evidence. Compare 8 C. Wright &
A. Miller, Federal Practice and Procedure i 2015, at 115 i
(1970) (Wright & Miller) (footnote omitted) (Fed.R.Civ.P.
26(b) " allows discovery even of information inadmissible at the trial if it ' appears reasonably calculated to lead to i the discovery of admissible evidence. ' Surely . . . proof of bias, and similar material, being themselves admissible evidence, cannot be excluded from the scope of discovery.")
with In re Pacific Gas & Electric Co. (Stanislaus Nuclear Project, Unit 1), 7 N.R.C. 1038, 1040 (1978) ("In modern administrative and legal practice, pretrial discovery is liberally granted to enable the parties to ascertain the facts in complex litigation, refine the issues, and prepare adequately for a more expeditious hearing or trial.").
- Because intervenor UCS/NYPIRG had no legal basis for
! its objection, pursuant to 10 C.F.R. $ 2.740, the Board should compel Mr. Weatherwax to answer the questions that 1
relate to the compensation he is receiving in this proceed-ing.1
- 1. Even if matters relating to compensation could be construed to be proprietary, UCS/NYPIRG's bald assertion to that effect is unsupported under the applicable standards.
. See In re Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), 3 N.R.C. 408, 416-17 (1976).
s o III. The Deponent Must Produce Documents Identified During Ehe Deposition Because They Directly Relate to the Substance of the Witness' Testimony In the course of his deposition, Mr. Weatherwax identi-fled documents on which he said he would rely during the preparation of his testimony. Specifically, he stated that
"[s]ome of the [ documents] that I would feel rather probably will be used are the PRA's for Indian Point as well as for the Limerick Generation Station." Weatherwax Deposition at
- 13. The witness added that he would also rely upon various critiques of the Indian Point PRA as well as the Brookhaven Review of the Limerick PRA. Id. Mr. Weatherwax subse-l quently stated that he had developed his own analysis of the Limerick PRA for the Limerick Ecology Action Committee. Id.
, at 27. "It's a review of the [ Limerick] PRA and the prepar-l ation of a report evaluating its strong and weak points."
Id. at 27-28. Further, Mr. Weatherwax observed that although a final report was "still in preparation," a " pre-liminary report was prepared" and had been provided to the Limerick Ecology Action Group. Id. at 26.
Licensees then requested a copy of this report stating, "it's our position that we are entitled to this report. Mr.
Weatherwax says he is going to be relying . . . upon the See also discussion infra at 11-12.
I
s 1
i Limerick PRA and I believe the Brookhaven letter report on
> Limerick." Id. at 29-30 (statement of Mr. Colarulli).
UCS/NYPIRG made several objections to providing this 2
document. The first was that, "This is not a lawsuit. It's a safety investigation." Id. at 31. The clear implication in this objection is that the procedural rights to confront
, witnesses'and effectively cross-examine them in a deposition and later at trial is not applicable in any meaningful man-ner in this proceeding. This position has been rejected l from the outset. The Commission has continuously indicated that this adjudicatory hearing demanded full procedural
~
protections. See In re Consolidated Edison Co. (Indian Point, Units 2 and 3), 13 N.R.C. 1, 5 (1981) (footnote omitted) (the Board is to conduct a proceeding "using the i full procedural format of a trial-type adjudication, includ-
- ing discovery and cross-examination."). Chairman Gleason has also observed that this is an " adjudicatory proceed-ing." Transcript of Proceedings at 4897 (Jan. 10, 1983).
UCS/NYPIRG counsel also objected that the report was proprietary information. Weatherwax Deposition at 32.
Claims of privilege are " exceptions to the demand for every man's evidence [and] are not lightly created nor expansively construed, for they are in derogation of the search for truth." United States v. Nixon, 418 U.S. 683, 710 (1974)
(footnote omitted).
s 12 -
i The standards for a claim of proprietary information
< are "that (1) the information in question [is] 'of a type customarily held in confidence by its originator'; (2) there
! is 'a rational basis for having customarily held [it] in j- confidence'; (3) 'it has, in fact, been kept in confidence';
and (4) 'it is not found in public sources.'" In re Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), 3 N.R.C. 408, 416-17 (1976) (footnote omitted).
UCS/NYPIRG has made no showing that Mr. Weatherwax' analysis of the Limerick PRA meets these standards. If anything, 1
just the opposite is true. The study has been prepared as a critique of the Limerick PRA for use in'another proceeding, and certainly will be discoverable in that proceeding.
Because the analysis will probably be made public in any event, the report should be discoverable-in this proceed-ing. UCS/NYPIRG bears the " burden of establishing the exis-i tence of the privilege," 8 Wright & Miller { 2016, at 126, and the objection in the record is barren of any specific, l
articulated facts that would meet the confidentiality stan-dards of In re Kansas Gas & Electric.
Moreover, even if Mr. Weatherwax's Limerick report has l
proprietary characteristics, it is clear he has waived any l privilege. The witness indicated that he intended to rely i
upon the analysis in presenting his testimony. The witness
{
f cannot make self-serving statements in a proceeding and then refuse to be cross-examined with respect to the documents on i
4
which he has relied. See Peck v. United States, 514 F.Supp.
210, 212 (S.D.N.Y.), rehearing granted in part and denied in part, 522 F.Supp. 245 (S.D.N.Y. 1981), appeal dismissed, 680 F.2d 9 (2d Cir. 1982) (Department of Justice waived official information privilege for Task Force Report by issuing summary of its investigation; release of summary required disclosure of relevant portions of report because of possibility that different inferences than those in sum-mary could be drawn); Perrignon v. Bergen Brunswig Corp.,
77 F.R.D. 455, 461 (N.D. Cal. 1978) (holder of privilege cannot let in part of privileged information and then seek to keep remainder out). See generally Weinstein's Evidence 1 511[02].
UCS/NYPIRG counsel's objection of relevance is also without foundation. Mr. Weatherwax's analysis of the Limerick PRA is clearly relevant because the witness indi-cated he would be relying principally on the Indian Point PRA and Limerick PRA as well as critiques of each PRA in formulating his testimony. His own analysis of the Limerick PRA, " evaluating its strong and weak points," Weatherwax Deposition at 28, is therefore clearly relevant. Even such a preliminary report of the Limerick PRA, especially in light of the fact that its the only complete critique Mr.
Weatherwax has performed, id., is obviously of crucial importance to the substance of Mr. Weatherwax's testimony in
- .-= = -- ._ - . . _ - ..
1 .
- 14.-
l this proceeding. Therefore, pursuant to 10 C.F.R.
{ 2.740(f), the motion to compel the production of this document should be granted.
4 4
IV. In the Alternative, the Board Should Preclude the Testimony Because UCS/NYPIRG's Counsel has Made it Impossible for Licensees to Properly Depose UCS/
4 NYPIRG's Expert Witness, and to Allow the Testimony.
Under These Circumstances Would Deny Licensees the i Right to Complete Preparation of Their Case, and, Therefore, Deny Them Administrative Procedural Rights and Due Process of Law i
On a motion for sanctions, three considerations are relevant: "due process for [the] licensee, due process for
[the intervenor), with an overriding . . . interest in a s
! complete evidentiary record." In re Metropolitan Edison Co.
! (Three Mile Island Nuclear Station, Unit 1), 11 N.R.C. 893, 897 (1980). Here, it is clear that the incomplete deposi-l tion of Mr. Weatherwax and UCS/NYPIRG counsel's obstruc-f tionist conduct in directing the witness not to answer cer-l tain questions and produce certain documents offends the due i process standards articulated in In re Metropolitan Edison Co.
With respect to the first standard, "due process for
[the] licensee," to allow the testimony of Mr. Weatherwax under these circumstances would deny licensees the right to t
complete preparation of their case and thereby deny them their administrative procedural rights and due process of
, , - , - - - , - - , . , - , - - . . . - - . - - , - . . -n.,.. . _ - . , _ . ~ , --,--_..--.-,,n..-,. , _ . . . . . . . . - . . - , . . . - - - . . . - . . - . .
law. With respect to the second standard, "due process to
[the intervenor]," no due process right of UCS/NYPIRG would j
be infringed by precluding the testimony because UCS/NYPIRG I
has no right to offer a witness who cannot be effectively cross-examined.
With respect to the third standard, "an overriding
. . . interest in a complete evidentiary record," the record is served only by evidence that is subject to the right of effective confrontation by an adverse party. Such confron-tation in a complex, technical proceeding such as this can only take place by having prior knowledge of the substance of the witness' testimony and the underlying bases for it
! well before it is offered to the Board. To allow i Mr. Weatherwax' testimony under present conditions would distort the record and possibly mislead the Board.
Moreover, preclusior. is the appropriate sanction under I
the circumstances. In In re Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), 15 N.R.C. 1400, 1416-20 (1982), the Appeal Board articulated a four-factor test' based on a Commission Policy Statement for determining the appropriate sanctions to be imposed when an obligation is unmet: (1) the relative importance of the unmet obligation and its potential for harm to other parties or the orderly conduct of the proceeding; (2) whether the default is an isolated incident or a part of a pattern of behavior; (3) the relative importance of the safety or environmental con-
. . _ - - - . _ - _ . _ - _ _ - _ - _ , . . _ - . - =
cerns raised by the party; and (4) all of the circum-stances.1 With respect to the first factor, "the relative impor-tance of the unmet. obligation," the failure of UCS/NYPIRG to make available Mr. Weatherwax for a complete deposition significantly infringes on licensees' administrative and constitutional right of confrontation. The record reflects that the uncooperative attitude of UCS/NYPIRG is part of a pattern of behavior to harass licensees in their legitimate
- 1. In utilizing this four-factor test, the Appeal Board was principally relying on the Commission's " Statement of Policy on Conduct of Licensing Proceedings" 13 N.R.C.
452, 454 (1981):
When a participant fails to meet its obligations, a board should consider the imposition of sanc-tions against the offending party. A spectrum of sanctions from minor to severe is available to the boards to assist in the management of proceed-ings. For example, the boards could warn the offending party that such conduct will not be tolerated in the future, refuse to consider a filing by the offending party, deny the right to cross-examine or present evidence, dismiss one or more of the party's contentions, impose appropri-ate sanctions or. counsel for a party, or, in severe cases, dismiss the party from the proceed-ing. In selecting a sanction, boards should con-sider the relative importance of the unmet obliga-l tion, its potential for harm to other parties or
! the orderly conduct of the proceeding, whether its
! occurrence is an isolated incident or a part of a pattern of behavior, the importance of the safety or environmental concerns raised by the party, and all of the circumstances. Boards should attempt I to tailor sanctions to mitigate the harm caused by the failure of'a party to fulfill its obligations and bring about improved future compliance.
discovery requests thereby satisfying the second factor, "whether the default is an isolated incident."
With respect to the third factor,_"the relative impor-tance of the safety or environmental concerns raised," this factor should not be "at all decisive" when "there is "little but the bare contentions upon which to rely." Id.
at 1419. "This factor is of more importance during the later stages of a proceeding when the contentions have been fleshed out and parties have submitted testimony." Id.
Because UCS/NYPIRG has yet to present Mr. Weatherwax' testi-many and will allow his deposition only on terms unilater-ally dictated, preclusion of Mr. Weatherwax' testimony is appropriate under this third factor.
With respect to the fourth factor, "all other circum-stances," this has been interpreted to mean that the Board should " tailor the choice of sanctions to mitigate the harm caused by a party's failure to fulfill its obligations and to bring about improved future compliance." In re Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), No. 50-322-OL, slip op. at 19 (Dec. 22, 1982). Here, the sanction is remedial in that it does not let UCS/NYPIRG profit from its misconduct, but does not unduly penalize it. In In re Long Island Lighting Co., No. 50-322-OL, slip op. at 23 (emphasis added), the Board found "our sanction deeming the refusal of any party to make its witnesses available . . . to be an abandonment of its right to present
4 the subject witness and testimony." That is the precise situation presented here.
Therefore, in the alternative, the licensees request that the testimony of Mr. Weatherwax be precluded pursuant to 10 C.F.R. l 2.707.
Respectfully submitted, 1
% rent L.' Brandenburg # fMWF
, ^4l Y Charles Morgan, Jr.
Y '-,
E"Wf Paul F. Colarulli CONSOLIDATED EDISON COMPANY Joseph J. Levin, Jr.
OF NEW YORK, INC.
4 Irving Place MORGAN ASSOCIATES, CHARTERED New York, New York 10003 1899 L Street, N.W.
(212) 460-4600 Washington, D.C. 20036 (202) 466-7000 Stephen L. Baum General Counsel Charles M. Pratt Assistant General Counsel POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian Point Unit 3 10 Columbus Circle New York, New York 10019 (212) 397-6200 Bernard D. Fischman Michael Curley Richard F. Czaja David H. Pikus l
SHEA & GOULD 330 Madison Avenue New York, New York 10017 (212) 370-8000 Dated: January 17, 1983 i
APPENDIX 1 1
1 UNITED STATES OF AMERICA
,. 2 NUCLEAR REGULATORY COMMISSION 3 BEFORE THE ATCMIC SAFETY AND LICENSING BOARD 4 -)
D '
) Doc ket Nos. :
5 In the Matter of:
6 CONSOLIDATED EDISCN COMPANY OF NEW YORK )
7 (Indian Point Unit 2) ) 50-247 SP
- 8. )
9 POWER AUTHORITY OF THE STATE OF NEW YORK) 50-286 SP 10 (Indian Point Unit 3) )
11 -)
12 Sh eraton Plaza Hotel 13 6101 Century Boulevard 14~ Los Angeles, California 15 Friday, January 7, 1983 16 17 DEPOSITION OF ROBERT WEATHERWAX 18 19 20 21 22
(
e b
a 1 PROCEED INGS 2 Wh e r eu p on, 3
4 ROBERT WEATHERWAX, 5 called for examination by c ouns el f or P ASNY, having been 6 first duly sworn by the Notary Public, was examined and 7 testified as follows:
8 EXAMINATION BY COUNSEL PASNY 9 BY MR. COL ARULLI:
10 G. Good morning, Mr. Weatherwax.
11 A. Good morning.
12 MR. COLARULLI: Mr. Slum, you have informed us --
13 MR. BR ANDENBURG: Just this moment for th e first 14 time. -
15 MR. COLARULLI: You have informed us that Mr.
16 Wea th erwa x has a conflict for the deposition this 17 afternoon. In f act, he has two conflicts.
18 Up until immed iately p receding this deposition, 19 we were und er the impression that h e would be 20 availab le f or most of the day. I b elieve you were 21 going to communicate with h irt that the deposition could 22 las t somewh ere in the range of four to six or seven
r M
7 1 hours1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br />.
2 We have a problem if Mr. Weatherwax now is 3 unable to b e here to complete h is d eposition, as I 4 thought we had understood h e would.
5 Could you for the record tell us what the 6 conflict in the sch edul e is?
7 MR. BLUM: Yes. Dr. Weatherwax has two mee ting s th at 0 I gather were set up within the las t day, since I was 9 informed of them for the first time las t night. There is 10 one at 1:30, wh ich he is willing to miss in order to keep 11 th e deposition going, and there is another one at 3: 00, 12 wh i c h h e sa y s i t 's critical tha t he attend.
13 Let me ask Dr. Weatherwax a question. Wo u ld it 14 he at all possible for you to return af ter the 3:00 15 mee tin g is over or to have them come to where y ou are?
16 THE WITNESS: Yes. Ac tually, that would b e 17 po s s ib l e. That would b e possib le. We could go --
, 19 La t er o n I would suspect the meeting would adjourn at 19 5: 00 or 5:30. I was scheduled out on a 7:00 flight and I 20 could p ostp one that.
21 MR. BLUM: There would be a later flight to 22 Sacramento?
~
8 1
1 THE WITNESS: I'm willing to stipulate th e r e 2 mu s t b e .
3 MR. BRANDENBURG: Would you describe f or us th e 4 nature of your conflicting engagements, Mr. Wea th erwa x ?
I 5 THE WITNESS: I have a meeting at 1:30 to l
l 6 discuss saf ety analysis of the shuttle space vehicle 7 th a t 's being done under sponsorship of the U.S. Air Force 9 Weapons Lab oratory in Albuquerque.
9 I have a meeting at 3: 00 to discuss a geothermal 10 power p lant and a brine power plant in Imperial County 11 with my principal client, MDG Thermal Corporation.
I
! 12 MR. BR ANDENBUR G: Can you tell us when th o s e 13 engagements wer e s e t up ?
14 THE WITNESS: The engagement a t 1: 30 was s e,t up 15 yes terd ay. Th e engagement at 3: 00 had been tentatively 16 planned for a week. It had been of f again, on again.
17 One of the major participants in it was unsure of his 18 ability to be present, and that was not firmed up until 19 yes terday a t ab out 3:30 that he would indeed be able to 20 he here for it.
21 MR. BR ANDENBURG: Was it your understanding 22 ye s t erd ay that you would be here for your d eposition 4
l I
t
'-y--- - - - - , -- y., .,.,____w,-,-_y_.m . . , . . , . . - , _ , - - - ,
O 10 1 one.
2 MR. COLARULLI: As we stated, it was our 3 understanding that Mr. Weatherwax would be availab l e th e 4 Julk of the day.
5 I gues s f or th e record, we should s ta t e that it 6 is now 10:46. Mr. Weatherwax was sligh tly delayed 7 because of coming in from the airport.
8 THE WITNESS: Fog at the airport, yes.
9 MR. COLARULLI: I would suggest, Mr. Blum, we go 10 forward at the point. I find a four or five-hour break 11 in the af ternoon unacceptab le, but we certainly should 12 get started and get in as much as we can and see wh ere we id are at that point.
14 MR. SLUM: Tha t sound s good.
I 15 BY MR. COLARULLI:
16 G. Mr. We a th e rwa x , just to clarif y one point, do 17 you have a PhD in any field?
18 A. No, I do not. I have a Masters of Science 19 degree.
20 G. Do you go by the name of Mr. Weatherwax or Dr.
21 Wea th e rwa x with your clients?
22 A. Ac tually, that varies. I have spent substantial
13 1 wer e g o ing to rely?
2 A. No.
3 G. Do you know any of the documents upon which you 4 rely for your testimony?
5 A. Yes.
6 G. Could you list them for us?
7 A. Some of the ones that I would feel rather 8 probably will b e used are the PRA's for Indian Point as 9 well as for the Limeric k Genera tion Sta tion. Bourne and 10 Gre en's Reliab ility Technology, William Foller 's Th eory 11 of Probability, Volumes 1 and 2, Tables r,f Physical 12 Parameters, some such name which is kind of th e bible of
~
13 phy sical sc ienc e for those types of probability and 14 sta tis t ics tables.
15 I will be relying upon tes timo ny of others in 16 th e pro c eed ing that I'm privy to and find relevant to my 17 ,
tes timony.
19 MR. BLUM: You mention th e PRA guide?
19 THE WITNESS: Yes, tha t 's righ t. -There ar e a 20 ser ies of r eports, the Broo khaven Review of th e LGS, 21 Limeric k Generating Sta tion PRA, Sandia review of the 22 Ind ian Point PR A, the series of other NRC contractor 4"
, . - , - - - - - , - - - - , - - - , - - - - , - - - --.- -,.---,n-
f 22 1 te s timo ny?
2 A. I was engaged in some preparatory work tha t 3 would have resulted in a produc t being a report to them 4 which could have been turned into testimony but was not 5 to have been by me.
6 G. That preparatory work that you did dur ing the 7 Jun e-Ju ly '82 time frame now forms the basis of your 8 tes timony that you are now working on?
9 A. No. The total sum and sub stance o f it was wha t 10 will turn out to be ap p ro x imat e ly perhaps 15 to 20 1
11 percent of the nours at the mos t, 15 to 20 p erc ent, 12 perhaps 10 to 15 p ercen t, of th e hours I will inves t in 13 preparing the report for them.
14 As with normal cir c ums tanc e s, the early going is 15 somewha t of a start-and-stop type of exercise where one 16 mer ely becomes familiar with th e contents of th e ma terials, 17 surveys, the li t era tur e and has some focus on r eally what 18 the que stions are.
19 G. Mr. Weatherwax, are you being c omp ensa t ed for 20 your servic es b y UCS or any other intervening group in 21 this proceeding?
22 A. Yes.
_ .-r . _ - , - .w -.-7 - - - - - , - , -
23 1 G. Are you charging the same type of comp ensa tion 2 that you do for other clients?
3 MR. BLUM: I'll object to that. The witne s s can 4 answer if h e ch oose s.
5 MR. COLARULLI: Th ere is no ch oice, unless you 6 are ins truc ting the witness not to answer on some 7 privileged ground.
8 (There was a conf erence be tween th e ,
9 witness and counsel.)
10 MR. BLUM: We have decided to take the position 11 tha t that's confidential and proprietary information, and 12 th e witness is instructed not to answer.
13 BY MR. CCLARULLI:
14 G. Just so we 're clear on what it is you are not 15 answering, the ques tion was is the ecmp ensa tion that you 16 are rec e iving in th is proceeding from UCS or any other 17 intervenor group comparable to c omp ensa tion which you is normally receive from other clients tha t you have?
19 MR. BLUM: Yes, we understood the que s tion.
20 MR. COLARULLI: You are instructing the witnes s 21 not to answer?
22 MR. BLUM: Yes.
t
~
24 1 BY MR. CCLARULLI:
2 G. Mr. We a th e rwa x , how much are y ou b eing 3 compensated by UCS in this proceeding?
4 MR. BLUM: Objection. The witness is 5 ins truc ted not to answer.
6 MR. COLARULLI: What's th e basis of your 7 objection?
8 MR. BLUM: Tha t it 's c onfidential and 9 proprietary inf orma tion and that it 's not relevant.
10 MR. COLARULLI: How is it c onf iden tial?
11 MR. BLUM: He is being compensated, and the 12 details of how much he is b eing compensated is not 13 sometning you are entitled to know about.
14 MR. CCLARULLI: How is it c onf id en tial and 15 proprietary inf orma tion? Whose confidential and 16 pro p rie tary inf orma tion is it?
17 MR. BLUM: Sierra Energy, which is th e agency 18 th a t Mr . We a th e rwa x heads and works for.
19 MR. COLARULLI: Mr. Blum, are you taking the 20 position that the amount of compensation that an expert 21 witness receives in a trial or administrative trial is 22 not a f actor wh ich the trier of fact should be informed
_.r-- 7,__ - - ,. - - - ,-._._w. _ . ~ - - - . - . . . . _ . _ - _ _ _ _ _ _ _ _ _ _ _ _ _ . _ - _ - - - - _
25 1 of' conc erning h is e xper tise, his compensation, whether it 2 var ies among clients? Are you taking that position tha t 3 is not a proper f ac tor that goes to the weight of the 4 exp ert's op inions and testimony and possibly even b ias?
$ If you are not ta k ing that position, then I 6 suggest you allow the witness to answer this qu estion.
7 MR. BLUM: Tha t would address only the ground of 8, relevance. It would no t addres s th e~ other ground, that 9 it 's proprietary information of Sierra Energy.
10 BY MR. CCLARULLI:
11 For the record to be clear, you are instructing 12 Mr. Wea th er wa x not to answer this question on the ground 13 of relevanc e and on a claimed ground of con f id e ntia lity 14 and proprietary inf orma tion of Mr. Weatherwax's 15 organization. Is that correct?
16 MR. BLUM: Yes. I'll c lar if y the ground a little 17 more if you want, that there is some basis for holding 18 this as proprietary and confidential information and 19 there is not sufficient relevance or materiality of this 20 inf orma tion to outweigh that claim in this proceeding.
21 BY MR. COLARULLI:
22 G. Mr. We a th e rwa x , could you describe for us the
+
- _ , . - , - - . - . . _ _ - _ . - . . ...m- _ .-_ , - _ - , . . . . . _ _ , _ _ . _ _ . , , . _ , . . _ _ . _ . . . _ , . .
27 1 Energy Systems who is a prime contractor to th e Air For c e 2 Weapons Lab ora t ory in Los Alamos to review the safety of 3 is o top e-p ow ered space vehicles.
4 MR. BRANDENBURG: Read back the last two 5 questions and answers.
6 (The record was read by the 7 Rep orter from Page 26. Line 10 9 to Page 27, Line 13.)
9 THE WITNESS: Two poin ts of clarification.
10 That 's Sierra Energ y and Ris k Asses smen t.
11 I failed to mention, now during the readback, 12 that we are doing a probabilistic financial ris k model as 13 well. We have produced a code call ed P IDAN, a 14 probabilistic inves tment decision analysis model that is 15 used to pro j ect the potential return on investment and 16 oth er f inancial parameters for a geothermal brine l
17 generation s ta t ion in Imperial County.
19 BY MR. CCLARULLI:
19 G. Mr. Weatherwax, could you further describe for 20 us the work in which you are engaged for the Limerick 21 Ecology Ac t ion Committe e, I believe was the name?
22 A. It 's a review of the PRA and the preparation of 4-
l 29 1 a report evaluating its strong and weak points.
2 GL Is that report still in preparation?
3 A. Very unfortunately, y e s.
4 G. Have y ou p ublished any articles or sma ller 5 reports con c ern ing the Limerick PRA?
6 A. None a t th is time. Excuse me. Scratch that, 7 please.
8 A preliminary report was prepared, and I must be 9 more caref ul wi th my dates.
10 Please understand, without the records in front 11 of me, I 'm not certain, but I think it is on th e order of 12 October of 1991.
13 3. Oc tob er 1991 is the date which you completed a 14 preliminary study o f th e Limeric k PRA?
15 A. I would clarify that in two ways. It's circa 16 October 1991 an d it was a series of questions and a brief 17 summary of what I thought to be peculiarities and unusual 18 aspects of the report.
19 G. Ha s that r epor t b e en p ubli shed or provided to 20 your client?
21 A. Yes. It was provided to my client.
22 G. Has it been published or filed in any proceeding?
' ' ' - - - - + _ - _ - , . - . , _ , _ _ __ _ , , , _ _ . - . ms_ , ,_ _..,,
29 1 A. No.
2 G. You say that involves and the report concerns a 3 review of the Limerick PRA. Is that correct?
4 A. Revision 2 I think, yes.
5 G. Revision 2 of the Limerick PRA?
6 A. Yes.
7 MR. COLARULLI: Mr. Blum, we would request 8 provision of a copy of that report.
9 MR. BLUM: UCS does no t have a copy of tha t 10 report. That is in the possession of _ the o ther client.
11 which i s th e Ecolog y Ac tion Group.
12 THE WITNESS: It may Just be LEA, Limerick 13 Ecology Ac t i on.
14 MR. BLUM: Wh e th er tha t could be made avai lab l e 15 would d epend up on their willingness to provide you a copy.
16 Perhaps we could give you the p erson to get in contact 17 with for t5at group.
19 BY MR. COLARULLI:
19 G. Mr. Weatherwax, do you have a copy of this 20 pre limi nary report?
21 A. Yes, b ut not with me.
22 MR. COLARULLI: Mr. Blum, it's our po s itio n that
(
30 1 we are entitled to this report. Mr. Wea th e rwa x say s he 2 is going to be rely ing in h is testimony upon th e Limerick 3 PRA and I b elieve the Brookhaven letter report on 4 Limerick, and we believe, since he is y our e xp ert witne ss 5 and not ours, that you are obligated to asc erta in wh eth er 6 or not a copy of this report can be obtained.
7 MR. BLUM: Wha t is the name of the woman you 8 men tion ed -- Ju dy?
9 THE WITNESS: I was afraid you would ask me that.
10 MR. BLUM: Dr. Weatherwax will consult with a il par ticu lar client for whom that report has been prepared 12 and will determine whether they are willing to provide 13 you with a copy.
14 If they are not and you wish to take the 15 position that I am obligated to go out and seek a copy of i
16 tha t unpublished ma terial f or y ou, we can cross tha t 17 bridge when we come to i t.
19 MR. COLARULLI: Mr. Blum, we would appreciata a 19 prompt response to our request.
20 THE WITNESS: As a matter of c larifica tion, it's 21 standard proced ure for us in our work to treat all the 22 reports provided as proprietary to the client and for the i
e m,--,e-,,.-m- ,- , - - , - - - - - - - , , _ , , - <en-.,-,-n , , - n,.-, -. - , ,--------,rm ow--------------------m-- - - - - - - - - - - , - - n
i i
31 1 client to have sole discretion as to --
2 MR. BLUM: In order to satisfy your reques t for 3 promptness, we will try to arrange so that you can 4 directly contact the person who would b e authorized to 5 give you this information, and we are trying to now find 6 the name and teleph one numb er of that p erson.
7 MR. COLARULLI: Mr. Blum, you can discuss with 9 Mr. Weatherwax the name and number of that person. Th i s 9 is a lawsuit, Mr. Blum, and we believe you are obligated 10 to provide us this inf o rma tion we requested.
11 MR. BRANDENBURG: Our request to y ou, Mr. Blum, 12 is in the nature of discovery in th is proceeding.
13 MR. BLUM: Th i s is not a lawsuit. It's a safety 14 inv e s t i g at i on.
15 MR. COLARULLI: It 's an admini stra tive 16 pro c eed ing in front of the Atomic Safety Licens ing Board, 17 which was formed under the Nuclear Regulatory Commission.
19 It's an ad judication according to the General Counsel of 19 th e Nuc lear Reg ulatory Commission.
20 I do strik e th e word " lawsuit" but an 21 ad j udic ation wh ich is subject to all th e procedural 22 reg u la t ion s and requirements of the Nuclear Reg ula t ory I
I 9
9
.y -
32 1 Commission. We believe me are entitled to it and you are 2 obligated to provid e us prompt discovery in this case, 3 inc lud ing documents upon which your expert witness is 4 relying.
5 I can go on to other questions, unless you have 6 ano ther comment to make.
7 MR. BLUM: Are you relying on that document?
8 THE WITNESS: No, not particularly at all. It 9 was wri t ten before the BNL letter r epor t, and it reviewed 10 a version of th e Limerick analy sis which has been 11 sek stan tially and almos t in terminab ly modif ied in Versions 12 3, 4 and 5.
13 I would be relying upon the Version 5, th e 14 Limeric k Genera ting Station analysis.
15 MR. BLUM: I think we can s tri k e th e r eque s t f or 16 that particular do c umen t, since in addition to it b eing 17 proprietary inf orma tion of another client, it's now is som e th i ng that he will not rely upon in this hearing.
19 MR. COLARULLI: Mr. Blum, I th ink you are trying 20 to drag out and was te our time on this point. We 'r e 21 try ing to move ahead as quickly as possible.
22 Our position is th at i t 's relevant, that since M
+- .,- , - . . , - - - . , , - - . . - - , - - , . - - , , . _ , - . - - , , . . , , . -, . , . - - .
42 1 Less substantive items such as proofreading, 2 running down reports, handling work that is sometimes 3 unchari tably called gopher work, though essential, would 4 he done by others f or me.
5 G. So there is no one else in a substantive way l
4 6 involve d in your work on Indian Point?
7 A. No.
8 Q. Mr. Weatherwax, are you f amiliar with the Indian 9 Point Probabilistic Saf ety S t'u d y ?
10 A. Yes, to some degree.
11 G. Have y ou read it?
12 A. No.
13 G. Have you read parts of the study?
14 A. Yes.
15 G. Could you identify for us which parts of the 16 study y ou have read? Possibly by the topics might be 17 ea s ies t to begin wi th.
18 A. What I will mention is somewha t def ective in 19 tha t I have not looked at the report or read it since 20 July of th i s last y ear, but at that time I had c omp l ete d 21 an Alic e in Wonderland traipsing through the study once 22 and compiled a much more detailed review of it, tab le o f
- -= + -
c -e,-e-- -- - - ~ , p._-, ,y - -.- - ,.,- - - - , , , . r-w . . - - - - - _ _ _ . . - - - - _ _ , w w--. r- --v -- --
44 1 and I hope I have read a portion of each of them and 2 would s o an swer. I may have missed one, but I 3 int enti onal ly tried to sample from each of them.
4 BY MR. CCLARULLI-5 G. Will y our testimony in this case relate to all 6 th e sections of th e Indian Point study?
7 MR. BLUM: We mentioned earlier that he really G hasn't prepared the testimony y e t, I don't see how you 9 can exp ect him to ar.swer that d efinitively.
10 Are you as king for his best guess now what it 11 will later include?
12 MR. COLARULLI: I'm asking as to his s tate of 13 knowledge today and his intentions concerning testimony 14 he's going to present in this case.
15 THE WITNESS: I would intend to emphas ize the 16 areas prior to I guess what's called the first pinch 17 point there, the areas associated with trig gering o f core is damage and also to look at the containment breaching 19 considerations to a lesser degree and at the propagations 20 of radionuclides and th e up tak e of the nuclides and the 21 impact on the population to a much lesser degree. That 22 would b e my intention.
I e
, , w ---
45 1 MR. BRANDENBURG: Can I have that answer back?
2 (The Reporter read the preceding answer. )
3 BY MR. COLARULLI:
4 Q. Mr. We a th e rwa x , have y ou f ormed any opinion as 5 to the validity of these areas of the study on which you 6 say you are going to testify?
7 A. No. Certainly no informed jud gmen ts h ave I made.
8 I have reviewed it, have certain preliminary impressions 9 of the r ep o r t.
10 G. You have b een in the p ossession of th is do cument 11 which was provided to you by the licensees s inc e last May 12 or June of 'B2 and you have no opinions as to the 13 validity of this study?
14 A. Yes. I believe that's what you just asked me 15 and tha t 's what I'm jus t responding.
16 G. Do you have any uninformed opinion? Do you have 17 any ten tati ve conclusions?
18 A. I have certain ten tative impressions a s to wha t 19 I b elieve the s tudy is.
20 However, to clarify it, I have not been working 21 on the study during this period. There is a concep t 22 called having to work for a living and work ing for paying
47 1 specific amount of time or Just to a general es tima tion, 2 range?
3 MR. COLARULLI: I'm as king wh a t h i s p r e.s en t 4 intention as to th e day s that h e will spend between now 5 and th e end of the month in preparing for this case.
6 MR. BRANDENBURG: He has testified, Mr. Blum, he 7 has some 160 hours0.00185 days <br />0.0444 hours <br />2.645503e-4 weeks <br />6.088e-5 months <br /> per month spent on unrelated matters.
8 So the qu e s ti o n o c c urr e d t o Mr. Colarulli and 9 myself as to exactly what portion of this witness' time 10 would be devoted to the matters tha t we 're here con c ern e d 11 about.
12 THE WITNESS: It would be some time b e tween a 13 quarter and a half man level.
14 BY MR. CCLARULLI:
15 G. I do not understand that terminology.
16 A. I'm surprised in the free enterprise system you 17 have no t encountered that.
18 Q. We lawyers don 't speak in terms of man levels.
19 A. Somewhere between 40 and 80 hours9.259259e-4 days <br />0.0222 hours <br />1.322751e-4 weeks <br />3.044e-5 months <br /> basing that on 20 a 160-hour month.
21 G. Mr. Weatherwax, concerning your tentative 22 con c lu s ions about the IPPSS study and those areas upon i
- i 48 1 which you will be testifying --
2 MR. BLUM: Just for clarification, he said he
, 3 had ten tative impressions, not tentative conclusions.
4 BY MR. COLARULLI:
5 G. Concerning your tentative impressions about 6 those areas, could you elaborate by area what y our 7 tentative impressions are of th e validity of th e IPPSS?
8 A. At the validity of the IPP SS?
9 MR. BLUM: I'll object to that question, to th e 10 form in which i t 's asked.
11 Are you asking does he have sp ecific concerns or 12 are you asking has he made what he would consider to be a 13 preliminary jud gment as to the adequacy of the study? If 14 it's th e second answer, it's likely to be no.
15 BY MR. COLARULLI:
16 G. I'm as king of your many tentative, if there are 17 many, tentative impressions, do you have any criticisms 19 of the way in which the material you have read was 19 presented, was research ed, was mode led or analyzed, et 20 cetera?
21 A. I cannot b elieve that it required that many 22 pag es to convey i t. That is a clear impression I have,
- - - - --e -
65 i Wea therwa x says he is g oing to canc el h is 1: 00 meeting 2 and then proceed until approximately 2: 30, 2: 40, wh ich is 3 approximately an hour and 20 minutes from now, at which 4 point we would have had less than four hours of 5 d e p o s i t i on.
6 We 're willing to accommodate that importan t 3: 00 7 me e ting th a t Mr. Weatherwax has and we 're a lso willing to 8 accept the off er that y ou made this morning on the record 9 th a t we could resume the deposition for two or three 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> at a later da te.
11 MR. BLUM: No, that was no t th e of f er I made 12 this morning. As a matter of fact, I did,not make any 13 off er this morning.
14 What I said was we could explore the possibility 15 of something, that I would have to talk to with Dr.
16 Weatherwax. Th e of #er that we are making, and firs t of 17 all, let me clarify my understanding.
i t 18 It was our und erstanding we were not g oing to 19 imp ose a specific time limit on today's dep osi t ion. We 20 were going to impose a requirement that we c omp let e it in 21 one day. We had among us discussed a collective 22 ex p ecta tion tha t th e deposition would likely run in the
-s
o c 97 1 both meetings, and you seem to be unwilling to do that.
2 We accept, if it is your decision, tha t you 3 refuse to allow him to attend the first meeting and we'll 4 accept your decision on that and give up on tha t me eting.
5 Th e second one, there is no way he can give up 6 on, but we will mak e him available for the time you need 7 today. It's no t easy to reassemble people on different 8 dates. We don't have anywhere near the res ourc es y ou d o.
9 I'm not going to be able to mak e that another fligh t to 10 Ca l i f or n ia, for example, and we agr ee we 're going to 11 complete it today and we will have plenty of time to do 12 it, t
13 MR. BR ANDENBURG: As I und ers tand i t, the 14 interruption of the deposition which you propose in ord er 15 to accomoda te Mr. Weath erwa x wo uld extend f rom 2:30 to 16 6:00, which I do say is a somewhat long lunch hour.
17 Is my understanding correct?
19 MR. BLUM: We had talked about 2: 40 to mos t 19 lik ely 5:30, possibly earlier if it 's in th e vicini ty of 20 th e Wes twoo d/Wilshire area.
21 For example, if it can be at the p lace where Mr.
22 Wea therwax 's me e tin g is at, we migh t be able to resume at l
l l
I- - _ . . . _ _ _ _ _ .__
9 (
93 1 deposition completed today. We are willing to go on as 2 long as you need to complete him today. Altogether th e re 3 is a two-hour p erio d wh en Mr. Weath erwa x must b e away.
4 Let 's r esume quickly so you can get as many que s tio ns 5 ask ed as possib le in the time that you choose to take 6 advanta g e o f.
7 MR. BRANDENBURG: So we 're clear, Mr. Slum, and 8 wnile the witness is on the te l ep h o n e, would you identify 9 for us which two-hour p eriod it is you are proposing that 10 we interrup t th e deposition? From when to when?
11 MR. BLUM: It's slightly more than two hours.
12 It's a period of 2: 40 until sometime ranging f rom 5: 00 to 13 5:30, d epen d ing on the precise time that the meeting ends 14 and where we have to assemble.
15 MR. COLARULLI: So it could be as much as three 16 hours?
17 MR. BLUM: Yes, although we're willing to forego 18 a lunch hour. It should be set off for tha t.
19 MR. COLARULLI: Th e record should reflect that 20 it's now 27 minutes pas t 1: 00, that we took a short 21 five-minute break. I believe i t wa s ap pro x ima t e ly 12:45, 22 tha t we came back on the record, around five past or ten l
l
~1 131 1 We, of course, have continued the offer of 2 coming back subsequently in the evening to c omp lete the 3 te s timo ny.
4 BY MR. COLARULLI:
5 Q. Mr. We a th e rwa x , I would like you to examine on 6 Pag e 24 answer to No. 76.
7 MR. BLUM: The witnes s posed a question to you 8 and it is s erious, because for him to g et there exactly 9 on time, he has to leave in five minutes.
10 MR. COLARULLI: You are telling me only five 11 minutes and now you are engaging in a colloquy.
12 MR. BLUM: Do you want us to stretch it slightly 13 beyand five minutes?
14 .
MR. COLARULLI: I would like Mr. W eath erwa : to 15 stay as long as he can, hopefully the rest of the 16 afternoon.
17 MR. BLUM: Since we are going to have to leave 18 quickly, will you please now accept or reject our offer 19 to resume the deposition after 5:00?
20 MR. COLARULLI: We have already stated our 21 pos itio n, and that is that this deposition, which we have l
22 only been in less than two and half hours of ac tual I
l l
~-
4
% 4 132 1 dep o si t i on, is sup p osed to proc eed and I will continue to 2 ask questions.
3 IP Mr. Wea th er wax, as we stated before, leaves, 4 then we 'll leave.
5 MR. BLUM: Do you want us to come back? "Yes" 6 or "No"?
7 MR. COLARULLI: I assume h e 's not coming back 8 since h e is leaving now.
9 MR. BLUM: We are offering to come back. It's 10 up to y ou. Don '~t a s sume. Decide.
11 MR. COLARULLI: Mr. Blum, try not to b e 12 professorial all th e time. We have mad e our statement on 13 th e record. Mr. We a th e rwa x leaves at 2: 40 and then th a t 14 will terminate the deposition. Ob v i ou s ly, no one is 15 coming back.
i 16 I have only a few minutes left under your time 17 schedule.
18 G. Will you please read the first sentence of the 19 answer on Page 24?
20 MR. BLUM: While h e is reading th a t, I would 21 like to state for the record that i t 's Mr. Colarulli and 22 Mr. Brandenburg 's d ecision that the deposition will not l
- m. e...
6-y- , , - , ---
e
- e. #
135 1 G. So it is your view that a prop erly done PRA has 2 a role in the decision-mcking process as to the con tinu ed 3 operation of the nuclear power plant?
4 A. I thin k it certainly does have a role.
MR. BLUM: In order to get you there, we have to 5
6 leave? .
7 THE WITNESS: Yes MR. BLUM: Gentlemen, if you do decide to bring 8
9 us b efore the b card, we would request that you include 10 all per tinent p ortions of the transcrip t so as not to 11 misrepresent the conditions und er which the deposition
. 12 was termina ted.
MR. COLARULLI: We have never misrepresented 13 14 any thing in this pr oceeding. I P we dec ide to file a 15 motion or take any other action, we will ac t as we always 16 have, which is in good faith.
17 MR. BLUM: Thank you.
Just so we 'r e c lear, I think 19 MR. BRANDENBURG:
19 it migh t help to sum up the time sequence, which is the 20 dep osition has been c nducted today. I have ta ken note s l
21 thr oug h out this morning 's session and my notes reflect the deposition commenced at 10: 40. I b elieve the 22
4 nv 136 1 rep orter has an ind ependent notice of t%at. We bro ke at 2 approximately 12: 45 to what turned into an extended --
THE WITNESS: We broke at 1:00. That's ahen my 3
4 alarm was set for.
5 MR. BRANDENBURG: We recommenc ed at 1: 30 and 6 it 's now 2: 36.
7 MR. BLUM: Th e 1:30 is not correct..
9 MR. COLARULLI: We recommenced qu e s tioning of 9 the witness at that point.
10 MR. BLUM: There was an ex tend ed colloquy over 11 our attempts to get the deposition to continue today 12 which were turn ed d own.
< 13 MR. COLARULLI: It 's n ow 2: 36.
14 MR. BLUM: But the actual time of adjournment l
. 15 was more like ten minutes, and that I think occurred f
16 par tly in your response to your request th a t I conference 17 with you in the hall, which I d id.
18 MR. COLARULLI: Th e ac tual questioning dur ing
! 19 this af ternoon's questioning has lasted from 1: 30 to 2: 30.
20 Th a n k y o u.
21 THE WITNESS: I would continue if a change of 22 mind is to be made --
l l
m e
. ' ^ -
~
mY_k h'a 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCXETED ATOMIC SAFETY AND LICENSING BOARD l'W C Before Administrative Judges:
James P. Gleason, Chairman 83 JAN 19 A11:29 Frederick J. Shon Dr. Oscar H. Paris ;,
[:CCe,UJN[3}Idjhg' vRat:CH
)
In the Matter of )
)
CONSOLIDATED EDISON COMPANY OF ) Docket Nos.
NEW YORK, INC. ) 50-247 SP (Indian Point, Unit No. 2) ) 50-286 SP
)
POWER AUTHORITY OF THE STATE OF ) Jan. 17, 1983 NEW YORK )
(Indian Point, Unit No. 3) )
)
l CERTIFICATE OF SERVICE I hereby certify that on the 17th day of January, 1983, I caused a copy of Licensees' Motion for Expedited Order Compelling Continuation of Deposition, Answers to Oral Deposition Questions, and Production of Documents, or in the Alternative, to Preclude Testimony of Robert Weatherwax, and memorandum in support thereof, to be served by first class j mail, postage prepaid on the following:
James P. Gleason, Chairman Charles M. Pratt, Esq.
Administrative Judge Stephen L. Baum, Esq.
Atomic Safety and Licensing Board Power Authority of the 513 Gilmoure Drive State of New York Silver Spring, Maryland 20901 10 Columbus Circle New York, New York 10019 Mr. Frederick J. Shon Administrative Judge Janice Moore, Esq.
Atomic Safety and Licensing Board Counsel for NRC Staff U.S. Nuclear Regulatory Office of the Executive Commission Legal Director Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Oscar H. Paris Administrative Judge Brent L. Brandenburg, Esq.
Atomic Safety and Licensing Board Assistant General Counsel U.S. Nuclear Regulatory Consolidated Edison Company Commission of New York, Inc.
Washington, D.C. 20555 4 Irving Place New York, New York 10003 Docketing and Service Branch Office of the Secretary Ellyn R. Weiss, Esq.
U.S. Nuclear Regulatory Commission William S. Jordan, III, Esq.
Washington, D.C. 20555 Harmon and Weiss 1725 I Street, N.W., Suite 506 Joan Holt, Project Director Washington, D.C. 20006 Indian Point Project New York Public Interest Research Charles A. Scheiner, Co-Chairperson Group Westchester People's Action 9 Murray Street Coalition, Inc.
New York, New York 10007 P.O. Box 488 White Plains, New York 10602 Jeffrey M. Blum, Esq.
New York University Law School Alan Latman, Esq.
423 Vanderbilt Hall 44 Sunset Drive 40 Washington Square South Croton-On-Hudson, New York 10520 New York, New York 10012 Ezra I. Bialik, Esq.
Charles J. Maikish, Esq. Steve Leipzig, Esq.
Litigation Division Environmental Protection Bureau The Port Authority of New York New York State Attorney and New Jersey General's Office l One World Trade Center Two World Trade Center New York, New York 10048 New York, New York 10047 Alfred B. Del Bello Westchester County Executive Westchester County 148 Martine Avenue White Plains, New York 10601 Andrew S. Roffe, Esq.
New York State Assembly Albany, New York 12248
Marc L. Parris, Esq. Atomic Safety and Licensing Eric Thorsen, Esq. Board Panel County Attorney U.S. Nuclear Regulatory Commission County of Rockland Washington, D.C. 20555 11 New Hempstead Road New City, New. York 10956 Atomic Safety and Licensing Appeal Board Panel Phyllis Rodriguez, Spokesperson U.S. Nuclear Regulatory Commission Parents Concerned About Indian Washington, D.C. 20555 Point P.O. Box 125 Honorable Richard L. Brodsky Croton-on-Hudson, New York 10520 Member of the County Legislature Westchester County Renee Schwartz, Esq. County Office Building Paul Chessin, Esq. White Plains, New York 10601 Laurens R. Schwartz, Esq.
Margaret Oppel, Esq. Zipporah S. Fleisher Botein, Hays, Sklar and Hertzberg West Branch Conservation 200 Park Avenue Association New York, New York 10166 443 Buena Vista Road New City, New York 10956 Honorable Ruth W. Messinger Member of the Council of the Mayor George V. Begany City of New York Village of Bachanan District #4 236 Tate Avenue City Hall Buchanan, New York 10511 New York, New York 10007 Judith Kessler, Coordinator Greater New York Council Rockland Citizens for Safe Energy on Energy 300 New Hemstead Road c/o Dean R. Corren, Director New City, New York 10956 New York University 26 Stuyvesant Street David H. Pikus, Esq.
New York, New York 10003 Richard F. Czaja, Esq.
Shea & Gould Joan Miles 330 Madison Avenue Indian Point Coordinator New York, New York 10017 New York City Audubon Society 71 West 23rd Street, suite 1828 Amanda Potterfield, Esq.
New York, New York 10010 Johnson & George
- 528 Iowa Avenue Richard M. Hartzman, Esq. Iowa City, Iowa 52240 Lorna Salzman Mid-Atlantic Representative Ruthanne G. Miller, Esq.
Friends of the Earth, Inc. Atomic Safety and 208 West 13th Street Licensing Board Panel New York, New York 10011 U.S. Nuclear Regulatory Commission Stanley B. Klimberg, Esq. Washington, D. C. 20555 l General Counsel New York State Energy Office 2 Rockefeller State Plaza Albany, New York 12223
i Mr. Donald Davidoff Director, Radiological Emergency Preparedness Group Empire State Plaza Tower Building, Rm. 1750 Albany, New York 12237 Craig Kaplan, Esq.
National Emergency Civil Liberties Committee 175 Fifth Avenue, Suite 712 New York, New York 10010 Michael D. Diederich, Jr., Esq.
Fitgerald, Lynch & Diederich 24 Central Drive Stony Point, New York 10980 Steven C. Sholly Union of Concerned Scientists 1346 Connecticut Avenue, N.W.
Suite 1101 Washington, D. C. 20036 Spence W. Perry Office of General Counsel Federal Emergency Management Agency 500 C Street, S.W.
Washington, D.C. 20472 Stewart M. Glass Regional Counsel Room 1349 Federal Emergency Management Agency 26 Federal Plaza New York, New York 10278 Melvin Goldberg Staff Attorney New York Public Interest Research Group 9 Murray Street j New York, New York 10007 l -
Jonathan L. Levine, Esq.
P. O. Box 280 New City, New York 10958 Paul F. Colarulli g l
_ . - -