ML20053D095

Memorandum Supporting 820527 Motion to Compel Util to Produce RR Dynes,S Lecker,Pl Rosenblatt,Md Rocca & B Podwal for Depositions.Util Presented No Reasons for Ignoring 10CFR2 Requirements.Certificate of Svc Encl

ML20053D095
Person / Time
Site:	Indian Point
Issue date:	05/27/1982
From:	Blum J, Potterfield A PUBLIC INTEREST RESEARCH GROUP, NEW YORK, UNION OF CONCERNED SCIENTISTS
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-SP, NUDOCS 8206040073
Download: ML20053D095 (8)

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UNITED STATES OF AMERICA <

NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD -

Before Administrative Judges: JZ-3 Louis J. Carter, Chairman Frederick J. Shen ,

Dr. Oscar H. Paris

________________________________________________x In the Matter of ) Docket Nos..

CONSOLIDATED EDISON COMPANY OF NEW YORK, ) 50-247 SP INC. (Indian Point, Unit No.' 2) 50-286 SP

)

POWER AUTHORITY OF THE STATE OF NEW YORK May 27, 1982 (Indian Point, Unit No. 3) )

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X MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCOVERY I. There is nr basis in law or in any of the' Commission's or Licensing Board's Orders for Licensees' refusal to allow their witnesses to be deposed.

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The Commission's January 8, 1981 and September 18, 1981 setting forth this proceeding exempt the licensing board from the strictures of 10 C.F.R. Part 2 for certain matters relating to the admission and formulation of contentions. However, the Orders states th'at in all other respects the provisions of 10_C.F.R. Part 2 will control. Footnote 4 to January 8, and September 18 orders.

10 C.F.R. S 2.740s establishes that parties to an NRC proceeding have the right todepose one another "without leave of the Commission or the presiding officer." Depositions be-tween intervenors and licensees are permitted "without any showing or good cause." United Stated Nuclear Regulatory 8206040073 820527 3 PDR ADOCK 05000247 9 PDR gg

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Commission Staff Practice and Procedure Digest, S 10.2(3),

(1978), at 26.

Rather than formally notice the depositions for a specific time, UCS/NYPIRG called licensees' attorneys'to offer a range of possible times and to propose that mutually convenient dates be set. The shortness of time before actual hearings commence requires that we seek an immediate ruling from the board com-pelling licensees to make their witnesses available for deposi-tions. The licensees have made clear their unwillingness to

} produce their witnesses without an order from the board. To notice despositions formally so'that licensees may object in writing would simply waste precious time. An immediate ruling from the board is necessary.

II. Licensees' refusal to let their witnesses be de-posed is part of an attempt to deny intervenors any meaningful discovery of witness testimony.

UCS/NYPIRG has attempted to discover the substance of and 4

l bases for licensee witnesses' testimony through' interrogatories as well as depositions. Both types of attempts have been l frustrated. The pertinent interrogatories were UCS/NYPIRG interrogatories 1(h) , 1(i), 1(j) and 2. None succeeded in

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eliciting useful information. . Question 1(h) requested a cata-loguing of reports submitted to licensees by the witness, 1(i) asked, "what is the subject matter of the witness' testimony?"

1(j) asked, "what are the facts and/or opinions to which the witness will testify and the grounds for each fact or opinion?"

Interrogatory 2 requested licendees to " provide a reasonable l

description of all documents that will be relied upon in the testimony presented by each wiu ess."

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.. . r For the five witnesses the licensees ~ responded as follows:

they answered 1(h) for two witnesser by saying there were no reports, and for the other three witnesses they objected that the interro-gatory was " vague, burdenso re, oppressive and overbroad. " 1(i) was answered, " human response to disasters," and " basis for human I

response assumptions" for the first two witnesses respectively. For the third, fourth and fifth witnesses the identic~al answer was given -- " evacuation planning." l'(j) was answered, human response to radiological emergen~cies does not differ materially from human response to non-radiological emergencia.s. .- (The ground for -this opinion is personal r*,earch.) ,

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for the first witness. And for the second witness

Human response assumptions underlying the Indian

( Point emergency ~ plans are valid. (The ground for this opinion is personal research.)

The third, fourth and fifth witnesses had identical answers

The evacuation plans ~for Indian Point-are adequate and evacuation time estimates are valid. (The grounds for these facts and opinions are research, training, l and personal involvement"in preparing the~ plans.)

Interrogatory 2 was answered in two different ways: for the first two witnesses the licensees answered, "Dr. Dynes and

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Mr. Lecker have yet to determine which documents, if any, which

[ sic] they'will rely upon in their testimony." For-the third, fourth and fifth witnesses licensees listed all emergency planning documents currently known to intervenors, but gave no hint as to which documents in particular or which parts of documents would be the focus of testimony.

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CONCLUSION The pattern of licensees' responses is transparent; the board's duty is incontrovertible. Licensees have presented no l 1

l good reasons why the pr; visions of 10 C.F.R. Part 2 should be  ;

1 ignored or defied. Rather, through their answers to interrogatories they have demonstrated that depositions of their witnesses are urgently needed. For these reasons UCS/NYPIRG's motion to compel discovery should be granted.

Respectfully submitted,

%. b JEFFREY M. BLUM Special hearing attorney, Union of Concerned Scientists

'iD fg AMANDA POTTERFIELD Attorney, New York Public Interest

,Research Group

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F UNITED STATES OF AMERICA .

NUCLEAR REGUIA'IORY CCFMISSION Fy' ',{~ T BEEORE 'ITE A'ICMIC SAFEIY AND LICENSIM MARD

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'In the 143tter of )

) Docket Nos. 50-247 SP CONSOLIDATED EDISON COMPANY OF NEW YORK ) 50-286 SP .

(Indian Point Unit 2) )  ?

)

POWER AUITORITY OF TIE STATE OF NEN YORK ) May 28, 1982 (Indian Point Unit 3) )

Certificate of Service I hereby certify that copies of:

UCS/NYPIRG SUPPIH4ENIARY INIERROGA'IORIES 'IO EN EDISCN AND PASNY UCS/NYPIRG MOTICH 'IO COMPEL DISOOVERY PURSUANT 'IO 10 C.F.R. 2.740(f) and bHORANDUM IN SUPPORP OF MTICN 'IO COMPEL DISCOVERY

EOF /AUDUBON SUPPIINENTAL RESPCNSS 'IO LICENSEES' REQUEST EOR TIE PRODUCTICE OF DCCUMENTS l .

have been served on the official minimum service list for the above captioned proceeding by depositing in the United States mail, first class, this 28th day of May 1982. The judges of the Atcgi.c gety and Licensing Board were each mailed a ccpy of the UCS/NYPIRG bbtion to Canpel and Fistorandum in Support of bbtion to Cmpel Discovery by Express Mail on May.27, 1982. Mr. Brandenberg for Con Edison and Mr. Pikus of Shea and Gould for PASNY were served by hand on the norning o May 28, 1982 with

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each of the above l' ted docununts. f TdfA Anunda Potterfield, Esq. {

Joan lt P.O. Box 384 New rk Public Interest Village Station Re > Group, Inc.

! New York, NY 10014 9 Murray St.

New York, NY 10007 l 5 if/

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.( UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION -

'62 L,' -1 A9 D._ j BEFORE THE ATOMIC SAFETY AND LICENSING BOARD c=; . _.

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In.the Matter of: Docket Nos. 50-247 SP CONSOLIDATED EDIS0N COMPANY OF 50-286 SP NEW YORK (Indian Point, Unit 2) )

POWER AUTHORITY OF THE STATE OF I -

NEWYORK(IndianPoint, Unit 3) f

)

SERVICE LIST i Docketing and Service Branch Paul F. Colarulli, Esq.

Office of the Secretary Joseph J. Levin, Jr., Esq.

U. S. Nuclear Regulatory Comission Pamela S. Horowitz, Esq.

Washington, D.C. 205GS Charles Morgan, Jr., Esq.

Morgan Associated, Cha~rtered Louis J. Carter, Esq., Chairman 1899 L Street, N.W.

Administrative. Judge Washington, D.C. 20036 At~omic Safety and Licensing Board U.S. Nuclear Regulatory Comission Charles M. Pratt, Esq.

Washington, D.C. 20555 Thcmas R. Frey, Esq.

Power Authority of the Dr. Oscar H. Paris State of New York Administrative Judge 10 Columbus Circle Atomic Safety and Licensing Board New York, N.Y. 10019 U.S. Nuclear Regulatory C6 mission Washington, D.C. 20555 Ellyn R. Weisf Esq.

William S. Jordan, III, Esq. }

Mr. Frederick J. Shon Harmon & Weiss i Admi.pistrative Judge 1725 I Street, N.W., Suite 506 Atomic Safety and Licensing Board Washington, D.C. 20006 U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Joan Holt, Project Director Indian Point Project Janice Moore, Esq. New York Public Interest i Counsel for NRC Staff Research Group Office of the. Executive 5 Beekman Street Legal Director New York, N.Y. 10038 U.S. Nuclear Regulatory Comission Washington, D.C. 20555 John Gilroy, Westchester Coordinator Indian Point Project Brent L. Brandenburg, Es.q. New York Public Interest

. Assistant General Counsel Research Group Consolidated Edison Co. 240 Central Avenue of New York, Inc. White Plains, New York 10606 4 Irving Place New York, N.Y. 10003

Jeffrey M. Blum Esq. Nrc DPDisDsq.

' New York University Law School County Attorney 423 Vanderbdilt Hall County of Rockland 40 Washington Square South 11 New Hemstead Road New York, N.Y. 10012 New City, N.Y. 10010 Charles J. Maikish, Esq. Geoffrey Cobb Ryan Litigation Division Conservation Comittee The Port Authority of Chairman, Director New York and New Jersey New York City Audubon Society One World Trade Center 71 West 23rd Street, Suite 1828 New York, N.Y. 10048 New York, N.Y. 10010 Greater New York Council on Energy Ezra I. Bialik', Esq.

Steve Leipsiz, Esq. c/o Dean R. Corren, Director Environmental Protection Bureau New York University New York State Attorney 26 Stuyvesant Street

> General's Office New York, N.Y. 10003 Two World Trade Center New York, N.Y. 10047 . Atomic Safety and Licensing Board Panel Alfred B. Del Bello U.S. Nuclear Regulatory Comission Westchester County Executive Washington, D.C. 20555 Westchester County 148 Martine Avenue Atomic Safety and Licensing New York, N.Y. 10601 Appeal Board Panel /)

U.S. Nuclear Regulatory Comission Andrew S. Roffe, Esq. Washington, D.C. 20555 New York State Assembly Albany, N.Y. 12248 Honorable Richard L. Brodsky Member of the County. Legislature Renee Schwartz, Esq. Westchester County Botein, Hays, Sklar & Herzberg County Office Building Attorneys for Metropolitan White Plains, N.Y. 10601 Transportation Authority 200 Park Avenue Pat Posner, Spokesperson New York, N.Y. 10166 Parents Concerned About Indian Point Stanley B. Klimberg P.O. Box 125 General Counsel Croton-on-Hudson, N.Y. 10520

, New York State Energy Office 2 Rockefeller State Plaza Charles A. Scheiner, Co-Chairperson Albany, New York 12223 Westchester People's Action Coalition, Inc.

Honorable Ruth Messinger P.O. Box 488 Member of the Council of the White Plains, N.Y. 10602 -

City of New York

! District #4 Ala.1 Latman, Esq.

, City Hall 44 Sunset Drive i

New York, New York . 10007 Croton-on-Hudson, N.Y. 10520 J

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{ Lorna Salzman Mid-Atlantic Representative Friends of the Earth, Inc.

208 West 13th Street New York, N.Y. 10011 Zipporah S. Fleishtr West Branch Conservation Association 443 Buena Vista Road .

New City, N.Y. 10956 Mayor George V. Begany Village of Buchanan 236 Tate Avenue Buchanan, N.Y. 10511 Judith Kessler, Coordinator Rockland Citizens for Safe Energy 300 New Hemstead Road New City, N.Y. 10956 David H. Pikus, Esq.

Richard F. Czaja, Esq.

330 Madison Avenue New York, N.Y. 10017 Ms. Amanda Potterfield, Esq.

P.O. Box 384 Village Station New York, New York 10014 Mr. Donald L. Sapir, Esq.

i 60 East M3unt Airy Road .

RFD 1, Box 360 Croton-on-Hudson, New York 10520 l

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