ML20053D315
| ML20053D315 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 06/01/1982 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-SP, NUDOCS 8206040291 | |
| Download: ML20053D315 (36) | |
Text
i NCC'IAR REGULATORY COMMISSICN
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Mat::ar cf:
50-247 SP CONSOLIDATED EDISON COMPANY OF NEW YORK (Indian Point Unit 2)
POWER AUTHORITY OF THE STATE OF NEW YORK 50-286 SP (Indian Point Unit 3)
/
I 935' -969 DATE:
June 1, 1982 PAGzs:
AT:
Washington, D. C.
-go /
.s D/
REPORT 1XG
.uDERSON'- Y O
400 Virginia Ave., S.W. Wasningt=n, D.
C.
20024 O
cen=sc=e: <202) 354-2 43 l
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8206040291 820e01 PDP ADOCK 05000,247
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935 1
UNITED STATES OF AMERICA
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2 NUCLFTF REGULATORY COMMISSION 3
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD O
4
x 5
5 In the Matter ofa a
6 CONSOLIDATED EDISON COMPANY OF NEW YORK
-: Docket Nos.
s 50-247 SP 7
(Indian Point Unit 2) and s
50-286 SP 8
POWER AUTHORITY OF THE STATE OF NEW YORK s
t 9
(Indian Point Unit 3) a 10
x 11 In the Offices of Alderson Reporting Company 12 400 Virginia Avenue S.W.
Washington, D.C. 20024 13 Tuesday,. June 1,
1982 s
14 The telephone conference was convened, pursuant to 15 notice, at 11:20 a.m.
16 BEFORE:
l l
17 LOUIS J. CARTER, Chairman Administrative Judge 18 Atonic Safety and Licensing Board l
19 OSCAR H. PARIS, Member Administrative J udge 20 Atomic Safety and Licensing Board 21 FREDERICK J. SHON, Member Administrative Judge 22 Atomic Safety and Licensing Board 23 i O 4
25 O
l ALDERSON REPORTING COMPANY,INC, i
l 400 VIRGiMA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345 l
936
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1 APPEARANCES:
2 On behalf of Licensee, Consolidated Edison Company of New Yorks
)h BRENT L.
BRANDENBERG, Esq.
4 Assistant General Counsel Consolidated Edison Company of New York, Inc.
5 4 Irving Place New York, New York 10003 6
On behalf of Licensee, The Power Authority of the 7
State of New Yorka 8
RICHARD CZAJA, Esq.
JOSEPH LEVIN, Esq.
9 Morgan Associates, Chartered 1899 L Street, N.W.
10 Washington, D.C.
20036 11 On behalf of the Nuclear Regulatory Commissions l
12 JANICE MOORE, Esq.
l Washington, D.C.
13 l
On behalf of New York Public Interest Research 14 Group 4 15 AMANDA POTTERFIELD, Esq.
I 16 On behalf of the Union of Concerned Scientists 17 JEFFREY BLUM, Esq.
New York University of Law 18 40 Washington Square South, Room 423 New York, New York l
19 20 21 22 23 24 25 1
L ALDERSON REPORTING COMPANY, AC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
~
9 37 CHAIRMAN CARTER:
I would like to suggest that
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t 1
2 before each person speaks that they identify 3
themselves.
Further, since some of the parties are not 4
together in the same room, particularly Mr. Levin and 5
Mr. Czaja, that they each have an opportunity to make a 6
short comment in support of their position.
7 I would like to ask first, is there any 8
objection to oar proceeding to consider arguments on the 9
USC and NYPIRG motion to compel discovery?
10 I would like the record to show also that the 11 Licensee *s answer has been hand delivered to my office.
12 I now have all of the papers before me.
13 MB. LEVINs This is Joe Levin.
14
'If we might, unless it was on the record 15 before, state just for the record who has been served 16 with a copy of our answer this morning, so that we can 17 confirm that everyone now has it.
18 CHAIRMAN CARTERS Is there anyone who does not 19 have the Licensee's answer to USC and NYPIRG motion to 20 compel discovery, dated May 31, 1982?
21 MS. MOOREa Your Honor, this is Janice Moore.
22 The staff has the answer.
We do not, however, have the 23 motion to compel, but I assume that this is a mailing
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24 problem.
25 MS. POTTERFIELD4 This is Amanda Potterfield.
O ALDERSoN REPORTING COMPANY,INC, 400 VIRGINTA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
938 1
We apologize to Ms. Moore for that.
'It must
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2 be just another problem with the mail, we have had 3
particularly bad luck.
4 CHAIRMAN CARTER:
Are you also lacking the 5
memorandum in support of the motion to compel?
6 MS. MOORE:
Yes.
7 CHAIRMAN CARTER:
Ms. Moore, first of all, let 8
me note, is it your intention to participa te on one side 9
or the other on this argument?
10 MS. MOORE:
No, it is not, so it is not of 11 importance.
I just notino it to show that this is one 12 of the documents we don't have.
13 CHAIRMAN CARTER:
I am sure that it is on its 14 way, and if there is any dif'ficulty, you can let Mr.
15 Blum know or Ms. Potterfield.
16 MS. MOORE:
I will.
17 CHAIRMAN CARTER:
I would propose that we 18 start with a statement by Mr. Blum, a short statement, 19 and when I say short I mean two or three minutes, in 20 support of the motion to compel discovery.
Then we 21 would hear from Mr. Czaja for a couple of minutes and j
22 Mr. Levin for a couple of minutes, and Mr. Brandenburg 23 for a couple of minutes.
Then, we will have Mr. Blum or
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24 Ms. Potterfield make any rebuttal.
25 Do you want to proceed, Mr. Blum?
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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MR. BLUMa Thank you, Judge Carter.
{}
2 Our motion to compel is based first on the 3
fact that depositions are routinely and no rmally allowed 4
in proceedings such as this.
They are specified to be 5
available in the provisions of 10 CFR Part 2, those 6
provisions which the Commission specified would control 7
the proceeding in its order setting up the proceeding.
8 10 CFR Part 2 requires no special showing of good cause, 9
but merely that the depositions be noted.
10 We tried to proceed as expeditiously as 11 possible in noticing them.
It was not until the 12 Thursday before the Monday tha t our notice was given 13 that we knew the identities of the witnesses to be able 14 to notice them for deposition.
15 We proceeded to not rely upon written notice 16 setting up a specific time because we could foresee that 17 that would simply slow things up.
Rather, we tried to 18 call all the Licensee attorneys right away proposing a 19 range of times that we would be amenable to setting 20 things up according to their convenience.
21 There are two arouments that the Licensees has 22 made thst I would like to respond to.
One is that we 23 should rely simply on interrogatories, and if the any 24 answers to interrogatcries regarding the witness were'
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25 inadequate, we should simply ask to be able to file more
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ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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interrogatories or file objections to the answers to
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2 interrogatories.
3 We think that such a procedure would be O
4 wasteful and time consuming, and ultimately futile, 5
because I think what Licensees' answers demonstrate is 6
not that the Licensees are particularly bad people or 7
anything, but simply that interrogatories are not an 8
adequate method of getting the kind of crucial 9
information that we need, they are simply too easily 10 evaded, and we do need the depositions.
11 We need the depositions to prepare some of our 12 witnesses who are very dependent upon knowing what the 13 Parsons Brinkerhoff people are going to testify, and l
i
/3
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14 there is a great deal 'of information relating to 15 emergency plans that is in the control of the Licensees' 16 and that we have no other way to get other than by 17 deposing their key witnesses.
18 We need the depositions to be able to prepare 19 for efficient cross-examination.
20 The second argument was that by not explicitly 21 saying anything about depositions, the Licensing Board 22 at the earlier hearing essentially reversed 10 CFR Part l
l 23 2 and thereby excluded depositions from the proceeding.
()
24 This argument does not make too much sense because if 25 the rules are going to be countermanded,by a Licensing O
1
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1 l
ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 Board, that should at least be stated explicitly and 2
there should be good reason given for it.
3 We nattrally assumed that depositions would be 3
J 4
available during
..ie discovery period because we had 5
heard nothing to the contrary from either the Licensees 6
or the Board.
We did proceed to try to set them up as 7
expeditiously as possible as soon as we got the 8
information on the identities of the witnesses.
9 CHAIRMAN CARTER:
Thank you, Mr. Blum.
10 Now, Mr. Czaja.
11 MR. CZAJA:
Yes, Your Honor.
12 First of all, Mr. Blum says that he relies on 13 10 CFR Part 2.
As stated in our answer, he simply is 14 not ih compliance with the requirements of 10 CFR Part 15 2.
The depositions should be upon reasonable written 16 notice, and there was no written notice until we got the' 17 motion papers on Friday af ternoon of Memorial Day 18 weekend.
The first oral notice we had was on May 24 at 19 about 4:00 p.m.,
which was four business days before the 20 close of discovery set by the Board.
We don't believe 21 that that can be construei to be reasonable written 22 notice as required by 10 CFR Part 2.
23 M r. Plum then offers presumably some sort of
()
24 explanation --
25 CHAIRMAN CARTER:
Excuse me, Mr. Czaja, but I
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ALDERSON REPORTING COMPANY. INC.
400 VIRGINfA AVE S.W WASHINGTON, D.C. 20024 (202) 554 2345
942 1
want to get the facts clear here.
Are you saying that 2
there was only oral notice followed by a motion, and no 3
other notice.
O 4
ER. CZAJA:
That is correct, Your Honor.
5 There was a conversation with Mr. Levi.', and 6
Mr. Levin will correct me if I am wrong, on May 24 at 7
4400 p.m.
There was a subsequent oral con versation the 8
next day between Mr. Levin and Mr. Blum, in.which Mr.
9 Levin sta ted the Licensees' position as set forth in our 10 answer to the motion.
11 Then, on the 27th, we had a telephone call 12 from 13 CHAIRMAN CARTER:
Mr. Czaja, excuse me.
What 14 was the substance of the snswer to Mr. Blum's oral 15 request?
16 MR. CZAJA:
I think I will let Mr. Levin deal 17 with that, since he is the person who gave that answer.
18 CHAIRMAN CARTERS Good.
19 MR. LEVINs Do you want me to do that now, 20 Your Honor.
21 CHAIRMAN CARTER:
All right, go ahead, Mr.
22 Levin.
What was the substance of your answer?
23 MR. LESIN:
I said to M r.
Blum that we would 24 not provide witnesses for deposition, which is wh'a t I 25 had indicated to him the day before I thought our DG ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
943
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1 response would be.
I told him the ressons for ihat.
In D) 2 his motion, he suggests that the only reason given was 3
that it was inappropriate, and that is not, of course, O
4 completely accurate.
5 I told him that the principal problem was that 6
the depositions had not been raised at the April 13 and 7
lu initial prehearing conference.
If had had it in mind 8
th en, that it would have definitely affected the 9
scheduling that took place at that time for two reasons 10 primarily.
11 CHAIRMAN CARTER:
Mr. Levin, speak a little 12 more loudly, please.
13 MR. LEVINa All rig h t.
14 For two reasons, prim $rily, it would have been 15 important to have known at the April 13 and 14 16 prehearing that the Intervenors wished to depose our 17 emergency planning witnesses because it would have 18 affected the scheduling.
19 It takes time to prepare witnesses for 20 depositions and to get them deposed, particularly in an 21 expedited scheduling situation, such as we are in now.
22 It was neve r raised.
That was essentially the substance 23 of the conversation.
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24 Mr. Blum said that he would notify the other 25 Intervenors.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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CHAIRMAN CARTFR:
Back to you, Mr. Czaja, do
[}
2 you want to continue now?
3 MR. CZAJAs Yes, Your Honor.
O 4
Presumably for some sort of explanation for 5
this course of cos. duct, Mr. Blum says that he was 6
unaware until a week ago last Thursday tha t the 7
Licensees were going to present witnesses.
As the 8
transcript of the pretrial conference, at page 657, Mr.
9 Brandenburg advised the Board and Mr. Blum that the 10 Licensees would present testimony from Parsons 11 Brinkerhoff, yet we hear nothing about depositions of 12 Parsons Brinkerhoff until four business days before the 13 close of discovery.
)
14 So initially, Lic'ensees contend that there has 15 been no compliance with 10 CFR Part 2 in this' instance.
16 CHAIRMAN CARTER:
M r. Cza ja, when was Mr. Blum 17 or USC and NYPIRG advised as to the identity of all of 18 the witnesses, namely, Dr. Dynes, Dr. Lecker, and the 19 others?
20 MR. CZAJA:
Dr. Dynes and Dr. Le cker, he was 21 advised s week ago last Thursday.
22 CHAIRMAN CARTER:
Give me a date on that, if 23 you could be a little more specific.
()
24 MR. CZAJA:
I believe that is the 20th, Judoe, 25 just looking at the calendar here.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
945 1
MR. BLUMa Judge, that is right, it was the
[}
2 20th.
3 MR. CZAJA:
It would have been the 20th of May O
4 when we learned the identify of USC and NYPIRG's 5
witnesses, and USC and NYPIRG learned the identify of 6
Licensees' wi tn e s se s.
7 The next point raised in the answer is that 8
this failure to comply with 10 CFR Part 2 is 9
particularly prejudicial to the Licensees in this case, 10 where we are proceeding on an expedited schedule.
We 11 are required to produce our direct prefiled testimony a 12 week from yesterday, and the very people that Licensees 13 are presenting as witnesses and are this week required
()
14 to-work on their direct testimony, are the same people 15 that USC and NYPIRG now wishes to depose.
16 The third point raised in our answer is that 17 there is no necessity for deposition testimony in the I
18 circumstances of this case.
USC and NYPIRG is informed 19 of the subject matter of the witnesses' testimony in the 20 Licensees' interrogatory answers.
21 They have been informed of the grounds for the i
22 opinions of these experts.
They have been provided with 23 a list of publica tions of these experts.
They have been l
24 advised in the interrogatory answers as to those answers
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l 25 which these experts contributed.
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
946 1
They have had, with respect to Parsons
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2 Brinkerhoff, the methodology document that Parsons 3
Brinkerhoff used in preparing the evacuation time f-s 4
estimates since May 18.
In the case of Dr. Dynes, Dr.
5 Dynes is hardly unknown to UCS since he testified for 6
Licensee st the Three Mile Island Restart hearings, in 7
which I believe UCS was a Intervenor.
8 CHAIRMAN CARTER:
Thank you, Mr. Czaja.
9 MR. CZAJA:
If I could just make one more,
to point, Your Honor.
11 Our final point is that the proper remedy, if 12 they are disatisfied with our interrogatories, and to 13 date by reading their paper and listening to Mr. Blum, I O
14 am sti'11 unclear as to.what alleged defects to our 15 answers are, the remed7 is to move the Board to compel 16 proper interrogatory answers.
17 That is the course the Licensees have 18 followed.
We have filed one motion with respect to 19 three of the Intervenors, and we expect to file a motion 20 with respect to the remaining Intervenors very shortly.
21 That is the proper remedy.
22 Secondly, we belf::ve that in assessing the 23 prop rie ty of Licensees' answers, USC and NYPIRG 1 ()
24 information with reoard to their witnesses should be 25 looked at.
Looking at USC and NYPIRG's, interrogatory ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345 l
i gu7 1
answers, Licensees are totally in the dark as to what
{)
2 these witnesses of USC and NYPIRG are going to testify 3
to.
O 4
Despite clear interroga tories, despite the 5
provisions of the Federal rules, the Licen sees are 6
entitled to that information, and that information is i
7 not in the USC and NYPIRC interrogatory answers.
8 JUDGE SHON:
Mr. Czaja, I would like to ask 9
you one question, perhaps a double-headed question 10 before you stop.
11 BR. CZAJA Yes, Judge.
12 JUDGE SHON:
What of USC and NYPIRG's apparent 13 position that they did not know that depositions would
(
14 be necessary until they had icoked at your 15 interrogatories, and of their position that depositions 16 and an oral request for depositions would be more 17 expeditious in this special case than a mere motion to 18 compel discovery under 2.740( f) ?
19 MR. CZAJA:
Your Honor, responding to the 20 first question, as I said, I still do not know in which 21 respect our interrogatory answers are alleged to be 22 inadequate to allow USC and NYPIRG to participate in 23 these hearings, which specify the subject matter of the 24 witnesses' testimony, which is more than what USC and
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25 NYPIRG has done.
O ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202') 554 2345
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We have stated the grounds for their O
2 opinions.
We have given them a list of publications.
3 They know Dr. Dynes from Three Mile Island.
They have O
4 voluminous documents as to the methodology that Parsons 5
Brinkerhoff used in preparing the evacuation time 6
estimates.
7 As to the expedition requirement, it is not 8
more expeditious, first of all, if counsel for the 9
Licensees and the Licensees' witnesses are now required 10 to prepare for depositions, which is an enormous 11 expenditure of time to sit through depositions, to 12 probably come back to the Board for rulings on the 13 propriety of questions posed at the depositions, and 14 still file testimony by June 7th.
It is just an 15 impossible task, Your Honor, and we don't feel that this 16 will expedite the proceeding.
17 CHAIRMAN CARTER 4 Is it your position, Mr.
18 Czaja, that you cannot take depositions until you have 19 pursued the remedy you recommend of asking for 20 clarification of interrogatories?
21 MR. CZAJA:
Our position, Your Honor, is that 22 the alleged inadaquacy of our interrogatory snswers is 23 not a ground f ot obtnining deposition testimony, where
()
24 that deposition testimony would not otherwise be 25 available.
l l
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 l
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1 Here they have failed to comply with 10 CFR 2
Part 2.
The discovery deadline has expired.
We don't 3
believe they should be allowed to circumvent these 4
requirements by pointing to alleged inadequacies in the 5
interrogatory answers.
6 We don't believe there are any inadequacies in 7
those answers, but if there is, let them make a motion.
8 They have had time to make a motion.
They have had as 9
much time with the interrogatory answers a s they have 10 known about the identity of the witnesses.
11 CHAIRMAN CARTER:
Under that procedure, when 12 would they be permitted to take the depositions in this 13 case?
14 MR. CZAJAs Your Honor, I think'we would have 15 to cross that bridge when we come to it.
I do not 16 believe that there would ever be a situation in which 17 one could circumvent the requirements of 10 CFB Part 2 i
18 for reasonable written notice and the requirement of the 19 Board's discovery deadline by pointing to inadequacies 20 in interrogatory answers.
21 CHAIRMAN CARTER:
It seems to me, Mr. Czaja, 22 under your theory of procedure, the depositions would be 23 taken after the hea ring was over.
24 HR. CZAJA:
That is correct, Your Honor.
We
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25 had a prehearing conference on April 13, and A pril 14, O
I l
ALDERSON REPORTING COMPANY, INC, 400 VIRGINfA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345 l
950
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1 and the Intervenors were advised at that time that 2
Parsons Prink erhof f would be testifying, and we heard 3
nothing about depositions until four days before the 4
close of discovery.
5 CHAIRMAN CARTERt Mr. Brandenburg, do you have 6
any comments on behalf of the Licensees?
7 MR. BRANDENBURG:
Yes, I do, Mr. Chairman.
8 Mr. Blum mentioned a few moments ago, by his 9
characterization, that USC and NYPIRG had moved as 10 expeditiously as possible to request depositions.
We 11 submit that the circumstances in recent weeks suggest a 12 mischaracterization by Mr. Elum in that regard.
13 We all had a very wholesome discussion of O'
14 discovery at the prehearing conference on the 13th and 15 14 th of April in White Plains, which was a 16 month-and-s-half ago, where narry a word was uttered by 17 Mr. Blum or by Ms. Potterfield, or by anyone else at 18 that time about depositions.
Nonetheless -- this is l
19 responding to Mr. Blum's point that he needed to know a i
l 20 little more about our witnesses before he could conclude 21 that he would require depositions -- a t the prehea ring 22 conference, at page 656 through 657 of that transcript, t
23 this was discussion had on the 13th of April, Licensees
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24 clearly identified 25 JUDGE SHON:
Mr. Brandenburg,,you are fading O
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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951
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away.
Can you make yourself be heard a little better?
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2 MR. BRANDENBURGs Yes.
3
-- not only the subject matter of the 4
evacuation time estimates would be testified to by 5
Parsons Brinkerhoff, but we also identified Parsons 6
Brinkerhoff by name.
This was, again, colloquy that was 7
had on the 13th of April, and it is over a month later 8
that for the firct time we find Mr. Blum or Ms.
9 Potterfield even raising the question of depositions.
10 Secondly, Mr. Blum suggested a f ew moments ago 11 that USC and NYPIRG should have required depositions in 12 order to prepare for these hearings.
At page 5 --
13 CHAIRMAN CARTERS I am sorry, Er. Brandenburg,
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14 I could.not hear that last statement.
Page 5 of what?
15 ER. ERAFDENBURG Our answer to the USC and 16 NYPIRG motion, we quote from the Bailey case in which 17 the Commission clearly indicated that so long as 18 Intervenors would receive a full opportunity to i
19 cross-examine at the hearings, that there was no i
l 20 prejudice by virtue of their not being able to have had 21 depositions previously.
In our particula r situation, as we indicated 22 23 on the 13th of April and as we reaffirm here for all of 24 the parties to this quarrel, the Parsons Brinkerhoff (x~s) 25 representatives will be made available at the hearings
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l l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554-2345
952 1
for cross-examination.
I am sure that Mr. Blum can
(]}
2 elicit whatever information he is able to from those 3
witnesses at that time.
'O 4
Under the precedent of the Bailey case, which wecitehasIsaid, at page 5 of our answer, it is quite 5
6 clear under a Commission precedent that no prejudice-7 will fall to Mr. Blum because of that.
8 There has not been, it seems to me, Mr.
9 Chairman and other Members of the Board, a sufficient 10 discussion yet this morning on the desirability of 11 depositions just as a case management device, apart from j
12 whether thav migh t be required.
13
..ii n k, again, if Mr. Blum contends that 10
)
'CFR Part 2 would requir'e depositions, I might refer him 14 15 'to pace 3 of our answer where it'is quite clear that 16 under established Commission rules of practice, j
l 17 depositions may be limited by order of the Board.
So 18 there is certainly no requirement per se within 10 CFR 19 Pa rt 2 for depositions.
20 But as a case management device, it seems to 21 us, both with the short term remaining before we must 22 take up the emergency planning issues in the actual l
23 hearings together with the very compacted time schedule l
24 t'h a t the Commission has imposed upon all of us to f ()
25 c 5plete these proceedinas by Septemberf realistically l O ALDERSON REPORTING COMPANY,INC, 400 VIRGINI A AVE., S/,*/ WASHINGTON, D.C. 20024 (202) 554-2345
953 1
depositions could not be accommodated within this
{)
2 time-table.
3 I think all of us agree that the time-table, O
4 which was established by the Board at the prehearing 5
conference and then memorialized a few days later in 6
their order of April 23rd, is a very tight schedule.
I 7
think that there vill be no dissent from that.
8 CHAIRMAN CARTER:
All right, Mr. Brandenburg, 9
can you bring yoar remark s to a close.
You have now 10 spoken as long as your other two compatriots.
11 MR. BRANDENBURG Fine.
12 CHAIRMAN CARTEBs Is there anything more that 11 you have to point out to us here that has not been 14 discus' sed so far?
15 MR. BRANDENBURG:
No, I believe I have covered 16 it.
17 CHAIRMAN CAETER:
Thank you.
18 MR. LEVIN:
This is Joe Levin, and I do have a f
19 co mm en t.
20 CHAIRMAN CARTER:
Mr. Levin.
21 MR. LEVIN:
This is not repetitive, I trust.
1 22 Obviously, Judge Carter, and Judges Shon and 23 Paris, this is within the discretion of the Eoard.
' ])
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24 Despite the fact that the Intervenors have not complied 25 with the strict language of the regulat, ion in providing
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ALDERSON REPORTING COMPANY,INC, 400 VIRGINTA AVE., S.W., WASHINGTON, D C. 20024 (202) 554 2345
954 e
1 written notice, nevertheless discretion of the Boa rd is
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2 called for here.
3 I almost have a sense that this request for O
4 depositions was an after-thought by the Intervenors, and 5
ve would as the Board's view in determining whether to 6
require us to provide our witnesses for depositions, and 7
think about the reasonableness of that under the 8
circumstances that we have laid out.
9 Of course, we have the collateral problem here 10 which is, if we are going to do something different than 11 we tho ugh t was contemplated originally, and tha t is the 12 taking of depositions at this late date, we are going to 13 vant to take the deposition of the witnesses who have
()
14 been identified by the Intervenors in this caso, 15 certainly under emergency planning.
That is going to 16 present us with even greater scheduling problems than 17 unilateral taking of depositions that the Intervenors 18 have proposed.
19 CHAIRMAN CARTER:
All right, Mr. Blum or Ms.
l 20 Potterfield, do you have any rebuttal?
21 MS. POTTERFIELD:
Yes, Your Honor, I would l
22 like to add ress myself, as Mr. Levin said, the technical l
23 problems of our proceeding informally rather than
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'24 f ormally with our discovery requests.
25 I might say that we are all working under the l
ALDERSON REPORTING COMPANY. INC, l
400 VIRGINIA AVE., S.W.,.VASHINGTON. D.C. 20024 (202) 554-2345 1
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same difficult timeframe.
It was our hope that by
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2 proceeding inforisily, wh e re we had had some luck before 3
with Mr. Eorgan, that we might be, in fact, able to O
4 reach some accommodation with the Licensees.
5 We understand that asking for depositions in 6
this timeframe does create problems for everybody.
On 7
the other hand, it wasn't an afterthought so much as our 8
inability to ask for depositions of the Parsons 9
Brinkerhoff people before we were able to receive the 10 discovery we did get on May 18th, that was discovery 11 about the evacuation time estimates and we were able to 12 work that out informally with the Licensees' lawyers.
13 That was the first time tha't the Intervenors
)
14 had.had access to the v,ery complicated and sophist'icated 15 information that goes into the evacuation time 16 estimates.
As the Board knows, those estimates are a 17 critical part of the emergency planning case, and one 18 that will require a lot of sophistication and a lot of 19 education of the lawyers for the Intervenors as well as 20 the people who are working in a technical capacity with 21 us.
22 We do apologize for the lateness of our 23 request and submit tha t we made the request informally 24 in order to mitigate any inconvenience tha t we might be
()
25 causing.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S W., WASHINGTON, D.C. 20024 (202) 554 2345
956 1
The evacuation time estimate witnesses are
(}
2 very important to us to depose, rather than seeking 3
answers through interrogatories because we just now have s
i f
4 had access to a great volume of material about their 5
estimates and the data that went into them.
This is the 6
first occasion to prepare ourselves the kind of 7
testimony sbout the estimates that will be coming out.
8 We considered seriously whether or not to ask 9
for those depositions, and did so finally wi th the 10 feeling that it would expedite the hearings when these 11 witnesses eventually took the stand, as well as enable 12 us to prepare s more cohesive case now we do have the 13 written information that we have gotten about the
(
14 estimstes.
I 15 With regard to D r. Dynes who did testify at i
16 Three Mile Island, it is true that we do have access to 17 that testimony.
If there is a spirit of settlement 18 here, we will be glad to f orego our request for deposing 19 that witness because he did testify at Three Mile 20 Island.
21 I might also men tion that the witnesses that 22 we now have commitments from to testify also did testify 23 at Three Mile Island, and their testimony is available 24 to the Licensees in the same way that Dr. Dynes'
()
25 testimony is available to us.
O I
ALDERSON REPORTING COMPANY, INC, 1
1 400 VIRGINIA AVE., S.W., WASHINGTON D.C. P0024 (202) 554-2345
f 957 1
It may well be that when Mr. Brandenburg told
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2 us at the prehearing conference that they would be 3
presenting testimony from the Parsons Brinkerhoff people O
4 that it would hsve been easy for us to say, we hope tha t 5
if we get enough discovery, we will be able to depose 6
th em, and I wish I had said tha t because certainly we 7
had thought it.
But we didn't know what we would be 8
able to get through discovery and when we would be able 9
to prepare ourselves f or the depositions, and that is 10 the reason for the late request.
11 We feel tha t i t is important for the people 12 that we represent that we prepare ourselves as 13 completely as possible on the evacua tion time estimates,
(
14 which are critical.
15 CHAIRMAN CARTER:
Would you clarify something, 16 Ms. Potterfield.
With regard to the Parsons 17 Brinkerhoff, you received the evacuation time estimates I
i 18 on May 18th?
19 MS. POTTERFIELD:
We asked informally, Your 20 Honor, so you won't know about it, for the data tha t 21 went into the evacuation time estimates.
We asked for 22 that become the commencement of formal discovery in our 23 letter dated sometime at the end of April, following up l
24 on the Board's suggestion at the prehearing conference
()
25 that we begin informal discovery even before formal
()
ALDERSON REPORTING CCMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
I 958
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1 discovery began.
2 It was on day 17 and 18 that the Licensees 3
were able to get that information together, so that was O
4 another two weeks or so.
But it wasn't until then that 5
we had any more information than we have had available 6
to us in the pisns themselves.
7 CHAIRMAN CARTERS After that, what did you 8
do?
9 MS. POTTERFIELDs After that, on the 20th we to received their answers to interrogatories, which was a 11 Thursday and there was the weekend in-between.
It was 12 on the Monday following it when we started informal 13 requests for depositions.
()
14 So it is truo.that we had three or four 15 working days from the date that we got the informal 16 discove ry on the evacuation time estimates before we 17 asked informally for depositions.
We regret those three 18 or four days if that really is the difference.
19 CHAIRMAN CARTERa All right.
20 Ms. Potterfield, what is your answer to the 21 point that cross-examination is suf ficient.
Is there 22 any answer to that?
23 dS. POTTERFIELD:
Yes, Your Honor.
We are
()
24 trying to prepara our case on the evacuation time 25 estimates.
If we have to wait until we, cross-examine ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
959 1
their witnesses at the hearing, we won't be able to
(}
2 prepare our own case on that critical and complicated 3
issue.
O 4
With regard to Mr. Czajs's remarks, the 5
difficulty of preparing witnesses for deposition, I 6
appreciate that, but it also seems reasonable to ask 7
that that process could go along with the process of 8
preparing their testimony anyway.
We are really not 9
talking about duplicating the problems that the 10 Licensees face about working with their witnesses toward 11 different ends at the same time.
12 The reason that we need the depositions and 13 can't wait for hearing is because we have our O,
14 responsibility to the people we represent to.make it as 15 a cogent a scrutiny of evacuation time estimates as we 16 are able.
17 CHAIRMAN CARTER:
All right.
18 Is there anything further to come before us on l
19 this point?
Is there anyone who hasn't been heard who l
20 vants to be heard?
21 JUDGE PARIS This is Judge Paris, and I would 22 like to ask Ms. Potterfield a question with regard to 23 Dr. Dynes's testimony at Three Mile Island.
()
24 Are you satisfied, Ms. Potterfield, that the 25 testimony given at Three Mile Island will be the same as ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
960
{])
1 and fully r elev an t to Indian Point?
2 MS. POTTERFIELD:
Your Honor, I don't have any 3
idea that it will be the same as, but in the spirit of O
4 reaching some kind of compromise, because we do have 5
access to that testimony, I am offering that we withdraw 6
our request to depose Dr. Dynes.
7 The human response aspects of the emergency 8
planning case is the other very important aspect of the 9
case for USC and NYPIRG.
We are particularly interested 10 in what Licensees are going to present on that aspect as 11 well.
12 They understandably have hit us where we hurt 13 the most, which is on the evacuation time estimates and
(
14 the human response.
But if there is a way chat we can 15 reach a compromise because we feel that the depositions 16 are important, our compromise would be to withdraw our 17 request to depose D r.
Dynes.
18 CHAIRMAN CARTER:
This is a settlement that 19 you can take up directly one with the other, and the 20 Board does not have to be a party to that.
21 MR. BRANDENBURG:
This is Brent Brandenburg l
22 from Con Edison.
Yoor Honor, point of clarification.
23 CHAIRMAN CARTER:
Yes.
I ()
24 You had asked earlier when the first time was 25 that the Intervenors had received the evacuation time
)
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
961 l
1 estimates, and I am not sure that the record is entirely
(}
2 clear'on that point, Mr. Chairman.
3 In point of fset, a copious detsil about the O
4 evacuation time estimates has been available to the 5
Intervenors for probably almost a year now in the form 6
of appendices to the emergency plans that are on file in 7
all the public document rooms.
8 As I alluded to a moment ago, the fact that i
9 Parsons Brinkerhoff has prepared those estimates and 10 will be offering testimony in the hearincs was disclosed 11 to the Intervenors at least at the prehearing conference 12 on April 13.
13 MS. POTTERFIELD:
It is the data that went
()
14 into the preparation of the evacuation time estimates to 15 which our contentions are addressed, and which we were 16 awaiting before we felt like we could prepare ourselves 17 for that aspect of the Licensees' case.
18 MR. CZAJA:
Mr. Chairman, this is Richard 19 Czaja, just following up on what Mr. Brandenburg and Ms.
20 Potterfield said.
I did make a small error in giving 21 the ch ronology here which Ms. Potterfield picked up.
22 The methodology documents were made available 23 to USC and NYPIRG on May 17th rather than May 18th, as I
(])
24 believe I stated.
25 MR. BLUM:
Judge Carter, this,is Jeff Blum.
()
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
962
/"'.
1 I just wa n ted to add one thing on the argument LJ 2
about no prejudice if we are denied the right to take 3
depositions.
O 4
Part of the argument is that answers to 5
interrogatories were adequate for informing us about 6
these witnesses.
I would like to refer the Board to 7
pages 2 and 3 of our memorandum in support of the motion 8
to compel.
In a very abstract, formal way the questions 9
were answered, but they were the kind of answers like:
10 What is the subject matter of the testimony?
Evacuation 11 planning, period.
What is the basis for the opinions 12 stated?
Personal research, period.
13 Then the answers on the relevant questions are 14 summarized more completely in'our memorandum.
But these 15 answers to interrogatories, while they perhaps formally 16 comply with the barebones of what an answer should be, 17 the spirit of them just does not give us much 18 information at all.
We basically know little more about 19 their case than we knew a month ago.
20 The other point is, denying us depositions 21 would force us into the position of doing all the kind 22 of probing and investigation during the course of the 23 cross-exssination and that would, first of all, make
()
24 cross-examination much less effective and much more 25 con tra dic to ry and self-defeating.
This,would both be O
ALDERSON REPORTING COMPANY,INC, 400 VIRGlNIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
963 1
prejudicial to USC and NYPIRG and probably boring for
()
2 everyone in the hearing room while this is going on.
3 MR. CZAJA Mr. Chairman, if I say just O
4 respond to what Mr. Blum said.
5 While he deems the Licensees' answers to the 6
subject matter of the witnesses' testinony as being 7
inadequate, USC and NYPIRC just did not answer that 8
question.
So we have no idea as to what the subject 9
matter of their witnesses' testimony is to be.
10 First of all, I think that should be 11 considered in determining the adequacy of the Licensees' 12 answers, and certainly it demonstra tes, as Mr. Levin 13 pointed out, that if there is going to be depositions
()
14 here, we have to depose the th ree witnesses that USC a'nd 15 NYPIRG has identified to date.
16 CHAIRMAN CARTER:
Mr. Blum, are you objecting 17 to the deposition of your witnesses?
18 MR. BLUMa No, we are not.
19 CHAIRMAN CARTERS Do any of the Judges have 20 any further questions?
21 I suggest that we have heard a good sta te m er.t 22 of the case from all sides.
We will require a short 23 period of time to review what we have heard, and then we 24 will let the parties know by telephone today what our
()
~
25 order is.
We have all of your locations a nd telephone O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S W., WASHINGTON, D.C. 20024 (202) 554-2345
964
{}
1 numbers.
2 JUDGE SHONs Judge Carter, do you think that 3
we could move sufficiently expeditiously to confer on O
4 another line by ourselves and rule while everyone is on 5
the line, if they are willing to hang on to the 6
telephone line for a while?
7 CHAIRMAN CARTER:
If the parties are willing L
8 to standby, we can try it.
9 Let's give it a try.
It is just a couple of 10 minutes after 12:00, let's see if we are in agreement or 11 disagreement.
We will try to get back on the lino 12 within about five or ten minutes to at least give you a 13 status report as to whether or not we can dispose of
()
14 this today.
15 JUDGE SHONs Is there a'nyone who cannot hang 16 on for another five or ten minutes?
17 (No response.P 18 JUDGE SHON:
Okay, hang on and we will go off f
19 the line.
l 20 CHAIRMAN CARTER:
We will take a short 21 adjournment while the Judges conf er on another line.
22 (A short recess was taken.)
23 CHAIRMAN CABTER:
The Judges have returned.
24 MR. BRANDENBURGs Perhaps we could have a roll
()
25 call, M r. Chairman.
(
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
965
(}
1 CHAIRMAN CARTER:
Yes, certainly.
2 Is Mr. Czaja there?
3 MR. CZAJA:
Present, Mr. Chairman.
O 4
CHAIRMAN CARTER:
Mr. Levin.
5 MR. LEVIN:
Yes, sir.
6 CHAIRMAN CARTER:
Mr. Brandenburg.
7 MR. BRANDENBURG Present, Mr. Chairman.
8 CHAIRMAN CARTER:
NRC staff?
9 MS. M00 pea Yes, sir.
10 CHAIRMAN CARTER:
Jeffrey Blum?
11 MR. BLUMa Yes, sir.
12 CHAIRMAN CARTER:
Ms. Potterfield.
13 MS. POTTERFIELD:
Yes, I am here.
()/
14 CHAIRMAN CA.RTER:
We shall issue a preliminary s
15 which shall be put into writing as soon as we are able 16 to do so.
17 Number one, the Board did not intend to 18 exclude depositions as a discovery mathod, and we did 19 not so indicate in our Order.
The failure to state it 20 did not remove it.
21 Two, the rules generally provide f or written 22 requests for arranging depositions.
We think that the 23 exigencies of the present proceeding are such that the 24 attorneys should use every effort to make oral-()
25 arrangements in order to see that srrangements can be O
ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
966
()
1 made for the taking of depositions.
2 Three, depositions requested in the UCS and 3
NYPIRG motion to compel discovery filed May 27th, 1982, O
4 is granted subject to the followings That the five 5
named witnesses are to be made available for deposition 6
no later than June 8th and continue from day to day.
7 The Board wants to direct the parties to 8
consult with each other in a more expeditious manner.
9 We want to encourage voluntary discovery and disclosure, to and where any motion is found to be absolutely necessary 11 that any motion shall describe f ully the efforts of the 12 parties in attempting to resolve the disputes.
13 We do have a serious problem with time.
If 14 any filing is to be made, the due dates required will be,
I i
15 the date of the physical lodging of the document and not 16 merely mailed on that day.
I realize that it may 17 increase the cost for some parties, but that will have 18 to be met.
19 We feel also that all discovery should be I
l l
20 expedited to the maximum extent reasonably necessary to 21 accommodate this accelerated hearing schedule.
l l
22 Finally, there is nothing in our ruling today 23 which excludes the rights of the licensees to depose any
()
24 of the other parties or any other persons that they feel 25 they need to or want to in accordance with 2.740.
We ALDERSON REPORTING COMPANY,6Nc, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
1 l
967 C
1 shall put this order into writing at the earliest 2
opportunity.
3 MR. LEVIN:
Your Honor, this is Joe Levin in 4
5 We specifically requested permission to depose 6
the intervenors' witnesses, are you granting us now the 7
opportunity to take their deposition?
8 JUDGE CARTER:
Ms. Potterfield said tha t they 9
had no objection to that.
10 MS. POTTERFIELDs We have no objection to 11 tha t, M r. Levin, and we can work out a time that is 12 convenient.
13 MR. LEVIN:
Fine.
14 This will be under the same schedule that is 15 now being imposed upon the licensee of June 8.
16 JUDGE CARTER:
I will just add this comment as 17 a footnote.
18 Ue have accepted the statement of counsel for 19 the licensees thst they will require up until Monday to 20 complete their direct examination.
As a kind of 21 interpretation of this holding, we expect tha t if a 22 named witness is available until the 7th, and his 23 testimony has been completed but will not be available O
24 efter the 7th, taat ooos feith reou1ree thet the vitness 25 be made available forthwith.
O ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
. ~ -.
968 1
It will start not later than June 8th in order
(])
2 to accommodate the attorneys who have said that they are 3
required for the preparation of direct testimony.
On O
4 the other hand, that is not intended as a device or 5
means to avoid the taking of depositions.
6 MR. CZAJAa I am somewhat conf used by the 7
portion of the order regarding physical delivery of the 8
documents.
What documents does that apply to?
9 JUDGE CARTER:
I am speaking here of any to further discovery instruments, and so forth that are to 11 be filed.
12
' M S.
POTTERFIELD Do I understand you to mean 13 that we have to deliver our direct testimony in O'
14 W 2hington on Monday?
15 JUDGE CARTER:
No, I am only talking about 16 that portion of the rules relating to discovery 17 motions.
Because we are having these time difficulties 18 of two or three days, and so forth, and we don't want to 19 have matters delayed because of the mail for three, four 20 or five days.
It is obvious from the discussions which l
21 we had this morning that attorneys are in dispute over I
22 notices within a period of a day or two or three.
This 23 is intended, so far as these discovery motions are
()
24 concerned, and we will try to cla rif y this in the rule.
l 25 Again, we encourage you to continue as you
($)
i ALDERSON REPORTING COMPANY,INC, 400 VIRGINTA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
969 O
i v=utd i=
nr etaer tree or 1eo 1 proceedi o in whica rou 2
are involved to attempt to work it out on the telephone, i
3 and proceed with what you have to do to provide the 4
proper opportunities under the rules for discovery.
5 It is now 21 minutes after twelve.
I think we 6
have heard from everyone.
We have heard from the 7
Board.
As I said, we shall try to get this in writing 8
as soon as possible.
9 Thank you very much for your participation, 10 and we appreciate your hard work.
11 (Whereupon, at 12:25 p.m.,
the conference was 12 adjourned.,)
13 14 15 16 17 18 19 20 21 22 23 24 25 O
i ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
m NUCLEAR REGULATORT COMMISSION This is to certify that the attached proceedings before the ATOMIC SAFETY AND LICENSING BOARD in the matter of: Con Ed Co of New Yo2;k (Indian Point Unit 2) Power Authority of the State of New York (Indian Point Unit 3)
- Date of Proceeding:
. ris n o 1 1999 Docket Number:
50-247 SP and 50-286 SP Place of Proceeding:
Washinaton, D.
C.
were held as herein appears, and that this is the original transcript thereof for the file of the Commission.,
Patricia A. Minson Official Reporter (Typed) h W
Official Reporter (Signature) l l
O
. m 1
O
-