ML20053A506
| ML20053A506 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 05/21/1982 |
| From: | Steptoe P CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OLA, NUDOCS 8205260161 | |
| Download: ML20053A506 (9) | |
Text
5/21/82 t
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
.v3 gg BEFORE THE ATOMIC SAFETY ANDCLICENSING BOARD
+
In the Matter of
)
) Docket No. 50-155-OLA CONSUMERS POWER COMPANY
) (Spent Fuel Pool
)
Modification)
(Big Rock Point Nuclear Power Plant)
)
LICENSEE'S RESPONSE TO INTERVENORS' MOTION TO LATE-FILE TESTIMONY OF DR. ARTHUR J.
SCHWARTZ INTRODUCTION On May 20, 1982, Consumers Power Company received a I
pleading entitled " MOTION FOR LEAVE TO FILE TESTIMONY OF DR.
ARTHUR J.
SCHWARTZ ON O'NEILL CONTENTION IID and TESTIMONY OF DR. SCHWARTZ."
This pleading was signed by Herbert Semmel, Counsel for Intervenors Christa-Maria, Mills, and Bier on l
behalf of his clients and also Intervenor John O'Neill.
In the cover letter and attached affidavit, Mr. Semmel stated s
that the testimony was due May 7, 1982, but pled as an excuse for this tardiness Intervenors' lack of financial means and I
their late discovery of Dr. Schwartz.
Licensee does not object to the filing.of Dr.
Schwartz's testimony provided that Licensee is allowed to take gSO3 s
l g 20 5 '26 0 \\ @ b l
_ ~ _
Dr. Schwartz's deposition a reasonable amount of time in advance of the hearing.
Unfortunately, Mr. Semmel has informed Licensee's Counsel that Intervenors will refuse to make Dr. Schwartz available for deposition at any time, in Ann Arbor, at Big Rock Point, or at any other location, except upon one condition which is totally unacceptable to Licensee.1/
The stated reasons for this refusal were that any deposition would interfere with Intervenors' trial preparation and be an inconvenience for the witness.
For the reasons stated below, this Board should not allow Intervenors' delay on securing witnesses to prejudice Licensee's right to discovery.
The Board should (1) order Intervenors to make Dr. Schwartz available for deposition, or (2) refuse to accept Dr. Schwartz's testimony.
BACKGROUND On March 13, 1980, and March 14, 1980, Licensee propounded its first and only set of Interrogatories to 1/
The condition was that Licensee must agree that if it took Dr. Schwartz's deposition, that deposition would be entered into evidence in lieu of Dr. Schwartz's actual appearance at the evidentiary hearings in June.
This condition is unacceptable to Licensee because it essen-tially eliminates 1 ensee's right to discovery prior to the creation of the decisional record in this case.
See pp. 6-7 below.
Intervenors Christa-Maria, et al, and Mr. John P.
O'Neill, respectively.
Licensee's Interrogatories were limited to five in number (some had subparts) and basically requested Inter-venors to identify for each contention and Board question in this case the expert and factual witnesses they expected to call, the substance of these witnesses' testimony, all docu-ments relied upon by such witnesses, and all documents which Intervenors expected to introduce into evidence.
Mr. John P. O'Neill and Intervenors Christa-Maria, et al.,
filed answers dated April 3, 1980, and April 11, 1980.
Both Intervenors named JoAnne Bier and Shirley J. Johns as witnesses, apparently factual witnesses, with respect to certain contentions.
Both Intervenors stated that they were attempting to find other expert witnesses to testify on their behalves and acknowledged a continuing responsibility to respond further to Licensee's interrogatories if they were successful in retaining such experts.
Intervenors Christa-Maria, et al., were no more specific than this.
Mr. O'Neill listed a number of experts whom he did not " expect to call, l
but rather those that [he] would hope to call."S 2/
The " experts" mentioned by Mr. O'Neill were:
Helen Caldicott, M.D.
Ernest Sternglass, Ph.D.
Sr. Rosalie Bertel, Ph.D.
Dr. Richard Webb Robert Pollard s
Subsequently, on July 6, 1981, Licensee's counsel sent letters to Mr. Semmel, Counsel for Christa-Maria, et al.,
and to Mr. O'Neill, reminding them of their obligation under 10 C.F.R.
S 2.740(e) to update their responses to interroga-tories, particularly with respect to the identification of expert witnesses.
Licensee did not receive a written reply from eithcr Mr. O'Neill or Mr. Semmel.
On September 17, 1983, Licensee filed a Motion to Compel which requested this Board to Order Intervenors to provide by November 1, 1981, a definite list of expert wit-nesses they intended to call to testify in this case, and to make such witnesses available for deposition.
On October 2, 1981, Intervenors Christa-Maria, et al., responded, stating in part:
Intervenors will provide Licensee with the names of witnesses as soon as they are known to Intervenors and no later than the time for filing of written testimony.
Licensee can always depose witnesses, if proper, I
after the names are received when L
written testimony is filed.
Apparently accepting this assurance, the Board never ruled on Licensee's Motion to Compel.
Subsequently, Intervenors identified Dr. Michio Kaku as an expert witness and allowed Licensee to take his deposi-tion.
Licensee was not informed of Intervenors' intention to
call Dr. Schwartz as an expert witness prior to receipt of his written testimony on May 20, 1981.
ARGUMENT Under the Commission's Rules of Practice, Licensee has an unconditional right to conduct reasonable discovery, including the right to take the discovery depositions of adverse expert witnesses.
10 C.F.R.
SS 2.740, 2.740(a).
For more than two years, Licensee has been trying to do just that, but its efforts have been frustrated by Intervenors' inability to name their expert witnesses.
It apparently now is Inter-venors' position that because Intervenors have delayed so long in securing this witness, Licensee's right to depose him must be sacrificed.
This result would violate Licensee's rights under the Rules of Practice and its constitutional right to due process of law.
Moreover, in asserting this position, Intervenors do l
not approach this Board with clean hands.
They promised on October 2, 1981, to provide Licensee with the names of wit-l l
nesses "as soon as they are known to Intervenors and no later than the time for filing cf written testimony."
By their own admission, they have broken this promise.
Intervenors acknowledge in their most recent pleading they learned of Dr.
Schwartz's availability on May 8.
They did not notify l
l
Licensee until the testimony was submitted nearly two weeks later.
Intervenors also assured this Board on October 12, 1981, that " Licensee can always depose witnesses, if proper, after the names are received when written testimony is filed."
Intervenors were apparently being coy.
Depositions, it seems, are not " proper" if they cause Intervenors any inconvenience, even if Licensee offers to minimize that inconvenience in scheduling the deposition.
The only condition on which Intervenors are willing to make Dr. Schwartz available for deposition is if he does not also have to testify at the hearings.
Apart from the fact that this condition would deprive this Board of the oppor-tunity to ask its own questions of the witness and observe his demeanor, this is unacceptable to Licensee because it effec-tively eliminates Licensee's right to discovery.
Even first-year law students are taught that ques-l tions asked during discovery are different than those asked during c vos-examination, or in a deposition to be used for evidentiary purposes.
Conducting a cross-examination of a witness where his answers will be part of the decisional l
record of the case, and where those answers are unpredictable l
because there has been no previous discovery, is like walking blindfolded through a minefield.
l
. i In short, Intervenors' refusal to permit Licensee to conduct discovery of Dr. Schwartz in this case is grossly overreaching.
Intervenors' late tender of Dr. Schwartz's testimony should not be allowed to prejudice Licensee's ability to prepare its defense.
As the condition for accept-ing Dr. Schwartz's testimony, this Board should order Inter-venors to make Dr. Schwartz available for deposition at the following time and location:
11:00 a.m.
June 3, 1982 Bechtel Power Corporation 777 East Eisenhower Parkway Ann Arbor, Michigan 48104 I have been informed that this time and location would be convenient for the NRC Staff.
Respectfully submitted,
- 1. N u Philip P.
Steptoe One of the Attorneys for Consumers Power Company ISHAM, LINCOLN & BEALE Three First National Plaza Chicago, Illinois 60602 (312) 558-7473 Dated:
May 21, 1982
UNITED STATES OF AMERICA T
r-NUCLEAR REGULATORY COMMISSION
~
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 0:31 In the Matter of
) rfj.
) Docket lNo. 50-155-OLA CONSUMERS POWER COMPANY
) (Spent Fuel Pool
)
Modification)
(Big Rock Point Nuclear Power Plant)
)
CERTIFICATE OF SERVICE I hereby certify that copies of LICENSEE'S RESPONSE TO INTERVENORS' MOTION TO LATE-FILE TESTIMONY OF DR. ARTHUR J.
SCHWARTZ were hand-delivered to Judge Bloch, Judge Paris, Judge Shon, and Messrs. Bachmann, Goddard, and Semmel and were served on the other persons listed below by deposit in the United States mail, first-class postage prepaid, this 21st day of May, 1982.
Peter B.
Bloch, Esquire Atomic Safety and Licensing Administrative Judge Board Panel Atomic Safety and Licensing U.
S. Nuclear Regulatory Board Panel Commission i
U.
S.
Nuclear Regulatory Washington, D.
C.
20555 Commission Washington, D.
C.
20555 Atomic Safety and Licensing Appeal Board Panel l
Dr. Oscar H.
Paris U.
S. Nuclear Regulatory l
Administrative Judge Commission Atomic Safety and Licensing Washington, D.
C.
20555 l
Board Panel I
U.
S. Nuclear Regulatory Docketing and Service Section Commission Office of the Secretary Washington, D.
C.
20555 U.
S. Nuclear Regulatory Commission Mr. Frederick J.
Shon Washington, D.C.
20555 Administrative Judge Atomic Safety and Licensing Board Panel U.
S. Nuclear Regulatory Commission Washington, D.
C.
20555
Richard J. Goddard, Esquire Judd Bacon, Esquire Counsel for NRC Staff Consumers Power Company U.
S. Nuclear Regulatory 212 West Michigan Avenue Commission Jackson, Michigan 49201 Washington, D.
C.
20555 Ms. Christa-Maria Richard G.
Bachmann, Esquire Route 2, Box 108C Counsel for NRC Staff Charlevoix, Michigan 49720 0.
S. Nuclear Regulatory Commission Mr. Jim Mills Washington, D.
C.
20555 Route 2, Box 108 Charlevoix, Michigan 49720 Herbert Semmel, Esquire Urban Law Institute Ms. JoAnne Bier Antioch School of Law 204 Clinton 2633 16th Street, N.W.
Charlevoix, Michigan 49720 Washington, D.
C.
20555 Mr. John O'Neill, II Route 2, Box 44 Maple City, Michigan 49664
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Philip P.
Steptoe l
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