ML20054F997

Motion for Order Compelling Usc/Ny Pirg to Produce Witnesses J Beyea,B Palenik & K Erickson for Deposition,Pursuant to ASLB 820603 Memorandum & Order.Certificate of Svc Encl. Related Correspondence

ML20054F997
Person / Time
Site:	Indian Point
Issue date:	06/14/1982
From:	Brandenburg B, Morgan C 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
References
ISSUANCES-SP, NUDOCS 8206180316
Download: ML20054F997 (18)

Text

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~' WATED CORRaponogy,c, c " :. ,

dl! I 7 A p ;l j UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Louis J. Carter, Chairman Frederick J. Shon Dr. Oscar H. Paris

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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 (Indian Point, Unit No. 3)  : June 14, 1982

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X LICENSEES' MOTION FOR AN ORDER COMPELLING DISCOVERY ATTORNEYS FILING THIS DOCUMENT:

Charles Morgan, Jr. Brent L. Brandenburg MORGAN ASSOCIATES, CHARTERED CONSOLIDATED EDISON COMPANY 1899 L Street, N.W. OF NEW YORK, INC.

Washington, D.C. 20036 4 Irving Place (202) 466-7000 New York, New York 10003 (212) 460-4600 9 50 0206100316 820614 PDR ADOCK 05000247 0 ppg

LICENSEES' MOTION FOR AN ORDER COMPELLING DISCOVERY Consolidated Edison Company of New York, Inc. (" Con Edison"), licensee of Indian Point Station, Unit No. 2, and Power Authority of the State of New York (" Power Authority"),

licensee of Indian Point 3 Nuclear Power Plant (collectively the " licensees"), hereby move the Atomic Safety and Licensing Board (" Board"), pursuant to 10 CFR Part 2 and the Board's prior memorindum and order of June 3,1982, to issue an order compelling the Union of Concerned Scientists /New York Public Interest Research Group ("UCS/NYPIRG") to produce its witness Jan Beyea ("Beyea") for a continued deposition herein and its witnesses Brian Palenik ("Palenik") and Kai Erickson ("Erickson")

for depositions herein.

The prospect of depositions in this expedited proceed-ing was first raised orally by counsel for UCS/NYPIRG on May 24

-- four working days before the close of discovery established by the Board. In its answer to UCS/NYPIRG's subsequent motion to compel discovery, licensees stated that if the Board deter-l mined that depositions were appropriate, the licensees would require depositions of UCS/NYPIRG's witnesses, who at that time had been identified as Beyea, Palenik, and Erickson (Licensees'

answer to UCS/NYPIRG motion to compel discovery, dated May 31, 1982, p. 8).*

At a conference call on June 1, 1982 in connection with UCS/NYPIRG's motion, Chairman Carter posed the following question and received the following response from counsel for UCS/NYPIRG:

CHAIRMAN CARTER: Mr. Blum, are you objecting to the deposition of your witnesses?

MR. BLUM: No, we are not.

(Tr. 963).

The Board's memorandum and order of June 3, 1982 provided as follows:

The Board granted the UCS/NYPIRG motion to compel discovery and ruled that discovery in the form of depositions is permitted both for UCS/NYPIRG and for Licensees. The five witnesses named in the UCS/NYPIRG motion are to be made available for deponition not later than June 8, 1982 and thereafter on a day-to-day basis. Discovery may be conducted in any sequence; the fact that a party is conducting discovery, whether by depositions or otherwise, shall not operate to delay another party's discovery.

• In intervenors' " supplemental" list of 171 witnesses on Commission questions 3 and 4 subsequently received by licensees on June 9, UCS/NYPIRG identified forty-seven witnesses it intends to present in contrast to the three identified in its interrogatory answers.

j

On June 4, 1982, licensees produced their witnesses Russell Dynes and Sidney Lecker for examination. No limitation was placed on the amount of time counsel for UCS/NYPIRG could examine these witnesses, and the depositions were completed.*

On June 8, 1982, licensees produced their witnesses Bruce Podwal, Peggy Rosenblatt, and Michael Della Rocca for depositions. No limitation was placed on the amount of time counsel for UCS/NYPIRG could depose these witnesses, and the depositions were campleted.**

On June 9, 1982, Beyaa was produced by UCS/NYPIRG for a deposition. The deposition was delayed approximately fif ty minutes by Beyea's attendance at an "important meeting," and by counsel for UCS/NYPIRG's iasistence that Palenik be present at the deposition. As Exhibit A hereto makes clear, counsel for l

UCS/NYPIRG was simply reneging on an agreement entered into at the Dynes deposition.

f

• At counsel for UCS/NYPIRG's request, Drs. Dynes and Le"cker (who will testify on the same panel for licensees) were not l permitted to be present while the other was being deposed.

The terms of this arrangement are set forth in the portion of the transcript of Dr. Dynes' deposition annexed as Exhi-bit A hereto. The exhibit is annexed since, as discussed below, the agreement set forth therein bears on one of UCS/

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NYPIRG's alleged reasons for refusing to produce Palenik for a deposition.

I

• • In the case of these witnesses, counsel for UCS/NYPIRG requested that they be examined as a panel, a request to which licensees agreed.

Examination of Beyea b i' counsel for Power Authority commenced at approximately 10:5C a.m. and proceeded (with frequent oostructing and impropar oujections by counsel for UCS/NYPIRG) until 1:20 p.m. ht that point, counsel for Power Authority had not completed his examination, and counsel for Con Edison had not commenced his examination. However, counsel for UCS/NYPIRG withdrew the witness. By terminating the examination at an arbitrary time, and through his obstructive objections and colloquy, counsel for UCS/NYPIRG was able to forestall productive examination of Beyea. Counsel for UCS/

NYPIRG thereupon announced that Palenik would be available to be deposed for the next forty minutes, but not longer. Counsel for licensees declined to proceed with an " examination" under such a time constraint.

On the afternoon of June 9, licensees requested a con-ference call with Chairman Carter. On June 10, the Chairman re-quested that the parties make an effort to resolve the dispute.

Licensees are and remain prepared to examine the UCS/NYPIRG wit-nesses at any reasonable time and place proposed by UCS/NYPIRG.

The response of counsel for UCS/NYPIRG to Chairman Carter's re-quest was to state that because licensees had reviewed inter-venors' purported direct testimony, he would consider providing Beyea and Palenik for depositions, only if an affidavit by the attorney taking the deposition were submitted stating that he had not read Beyea and Palenik's direct testimony. This " pro-posal" was manifestly merely another frivolous attempt to prevent depositions of UCS/NYPIRG's witnesses, since all counsel familiar with this proceeding had, of course, commenced review of filed testimony in order to prepare for the hearings.*

Further on June 10th, UCS/NYPIRG canceled the pre-viously scheduled deposition of Erickson for June lith. UCS/

NYPIRG had previously stated that Erickson would be available for three hours on that date. Licensees had agreed to attend the examination, understanding that Erickson would be available for only three hours, and to attempt to complete the examination in three hours. However, on June 10, UCS/NYPIRG stated that Erickson would be produced only if licensees agreed that the examination could last no more than three hours. Licensees would not agree in advance to waive examination of Erickson for more than three hours, should such examination prove necessary.

UCS/NYPIRG thereupon withdrew Erickson.

• During the conference call of June 1, counsel for UCS/NYPIRG made no suggestion that the filing of direct testimony l scheduleo for June 7 would influence the conditions under I which UCS/t?YPIRG witnesses would be deposed. Indeed, such a suggestion woeld have been absurd given that it was virtually impossible for licensees to begin taking depositions until i June 7. This is clearly an objection advanced in bad faith.

l

Again counsel for UCS/NYPIRG apparently seeks to pre-vent productive examination of Erickson by setting an arbitrary time limit on Erickson's examination -- a time period which could then be shortened by counsel's delaying tactics, colloquy, and improper objections.

Licensees are clearly ei. titled to examine Beyea, Palenik, and Erickson by reason of the Board 's June 3,1982 memorandum and order. To the extent UCS/NYPIRG's arguments for attempting to circumvent the clear language of that ceder may be discerned, UCS/NYPIRG's " arguments" with licensees' response are as follows:

(1) The "three-hour agreement. " An alleged agree-ment to limit depositions to three hours exists only in the fevered imagination of counsel for UCS/NYPIRG. Licensees never agreed to such a limitation, nor will any reference to such a limitation be found in the transcripts of the examinations of the licensees' witnesses where arrangements for the examina-tions of UCS/NYPIRG witnesses were discussed. The length of the depositions of licensees' witnesses was determined by the wishes of counsel for UCS/NYPIRG.

(2) The argument that Palenik should have been deposed in a single deposition with Beyea. As Exhibit A

makes clear, counsel for UCS/NYPIRG agreed to precisely the opposite -- to have Beyea and Palenik examined separately.

(3) The argument that depositions were to terminate upon receipt of direct testimony. Such " argument" is without basis. Counsel for UCS/NYPIRG made no reference to such a position in stating in the June 1 conference call (six days before the filing of direct testimony) that he had no objec-tions to depositions of UCS/NYPIRG witnesses. In any event, the Board's order, in providing that depositions could commence af ter filing of direct testimony (namely as late as June 8) and could continue from day to day, clearly contemplated the possibility of depositions af ter receipt of direct testimony.

When counsel for UCS/NYPIRG expressed an alleged concern with an alleged unf air advantage in this regard, licensees of fered to exchange all direct testimony on the monrning of June 8th, prior to the deposition of licensees' witnesses that afternoon.

Counsel for UCS/NYPIRG declined this offer.

In the final analysis, UCS/NYPIRG's resistance to having its witnesses examined simply reflects its view that discovery in this proceeding is a one-way street, and that li-consees are not entitled to discovery of intervenors. UCS/

NYPIRG's position is clearly contrary to 10 C.F.R. Part 2 and should be rejected.

Because hearings herein commence on June 22 and since licensees have already suf fered the substantial prejudice of having their witnesses examined while being precluded from meaningful depositions of the UCS/NYPIRG witnesses, licensees urge that this motion be granted promptly. The issue is simply whether UCS/NYPIRG will be required to comply with the Board's prior memorandum and order, or whether it may unilaterally confer upon itself a special dispensation from that order.

1 Licensees believe the matter can be disposed of in a conference call on June 14.

WHEREFORE, licensees respectfully request that the Board issue an order that UCS/NYPIRG shall make Jan Beyea, Brian Palenik, and Kai Erickson available for depositions commencing on June 15, and thereafter on a dav-to-day basis until such depositions are complete, together with such other and further relief as the Board may deem just and proper.

Respectfully submitted, A _- [

B ent'LJ Bla~ndenburg Charles Morgan, J(jf Paul F. Colarulli Joseph J. Levin, Jr.

CONSOLIDATED EDISON COMPANY MORGAN ASSOCIATES, CHARTERED OF NEW YORK, INC. 1899 L Street, N.W.

Licensee of Indian Point Wash'ington, D.C. 20036 Unit 2 (202) 466-7000 4 Irving Place New York, New York 10003 (212) 460-4600 Thomas R. Frey General Counsel Charles M. Pratt Assistant General Counsel POWER AUTHORITY OF THE STATE OF NEW YORK l

Licensee of Indian Point Unit 3 10 Columbus Circle New York, New York 10019 (212) 397-6200

Bernard D. Fischman i Michael Curley l Richard F. Czaja ,

I David H. Pikus l

SHEA & GOULD 330 Madison Avenue l

New York, New York 10017 (212) 370-8000 l

l Dated: June 13, 1982 l

UNITED STATES OF AMERICA NUCLEAR REGULARTORY COMMISSION l

l l

ATOMIC SAFETY AND LICENSING BOARD l .. Before Administrative Judges:

\

Louis J. Carter, Chairman Frederick J. Shon Dr. Oscar H. Paris

____________________________________________x

~~

In the Matter of '

Docket Nos.

CONSOLIDATED EDISON COMPANY OF NEW YORK, 50-2475P INC. (Indian Point, Unit No. 2)  : 50-286SP POWER AUTHORITY OF THE STATE OF NEW YORK  :

(Indian Point, Unit No. 3)

____________________________________________x Excerpted Portion of the Deposition of Russell Dynes, taken by all Parties Present.

June 4, 1982 2:40 o' clock p.m.

aCler AEACAT.NG SEAviCE STENCTYPE AwIts Ca 15 AAAK ACW/NEW YCAK.N.Y 1CO38/(212)287-3343,3339/ NIGHT 233-3151

2 1

2 APPEARANCES :

3 AMANDA POTTERFIELD, ESQ.

4 Attorney for New York Public Interest Research Group, Inc.

5 P.O. Box 384 6

village Station New York, New York 10014 7

JEFFREY M. BLUM, ESQ.

8 Attorney for Union of Concerned Scientists New York University School of Law 9 Room 423 Vanderbilt Hall .

40 Washington Square South New York, New York 10012 10 A OULD, ESQS.

11 Attorneys for Power Authority of the State f New York 12 330 Madison Avenue New York, New York 10017 13 BY: RICHARD F. CZAJA, ESQ. and DAVID H. PIKUS, ESQ.,

14 of Counsel -

CONSOLIDATED EDISON CO. OF NEW YORK, INC.

4 Irving Place 16 ,

New York, New York 10003 BY: BRENT L. BRANDENBURG, ESQ., and 17 STEPHEN M. SOHINKI, ESQ.,

of Counsel 18 BEVERLY RAVITCH, ESQ.

19 Attorney for Power Authority of the State of New York 20 10 Columbus Circle New York, New rk 10019 2'1 22 23 Oo 24 25 l

___________________j

3 1

MR. CZAJA: Let me first put on the 2

record the results of our prior discussions 3

4 regarding who is going to be present at this

( 5 deposition and future depositions coming up.

At the request of the Intervenors 6

7 Mr. Leker is not present during the examination of Dr. Dynes. And, in turn, Intervenors have 8

9 agreed that Mr. Polenick and Dr. Beyea will ,

10 be deposed separately and each will not be g

present during the deposition of the others.

And I have further agreed that we will 12 take the deposition of Mr. Polenick and 33 Dr. Beyea without the assistance of any non" ,

14 15 lawyer experts being present in the room.

MS. POTTERFIELD: That accurately 16 _

reflects the negotiations and the agreement.,

17 MR. BLUM: Let me add one thing to that.

18 I think we have agreed that we will provide 19 Mr. Beyea and Mr. Polenick separately in a l

20 room without the other present. On the other

) g b G hand, we may want to have both of them around so that partly if you decide you want g

them together at some point, they will be 24 available. And I guess neither of us is quite 25

r 4

g 2

sure at this point the exact details of 3

the working relaticnship between them, and 4 the extent to which Mr. Polenick needs consent from Mr. Beyea to say things and

(] g 5 6

so forth, since Mr. Polenick is Mr. Beyea's 7 assistant.

8 But we will bring both of them and 9 we will be willing to give you them in a -

10 room one at a time and we will do our best 11 t work cooperatively within the contines ,

~

12 f what that relationship is.

MR. CZAJA: I take it you are saying 13 14 Mr. Polenick might testify at some point he ,

15 can' t answer a question without Mr. Beyea's 16 assistance? Is that the type of situation?

17 MR. BLUM: I would expect there may 18 be something like that. .,

g9 MR. CZAJA: If that is Mr. Polenick's 20 testimony, that is his testimony. That is 2j basically fine with me as long as I can depose them separately.

22 23 24 oOo 25

l UNITED STATES OF AMERICA NUCLEAR RECULATORY COMMISSION ATOMIC SAFETY AND LICENSINC DOARD Before Administrative Judges:

Louis J. Carter, Chairman Frederick J. Shon Dr. Oscar H. Paris

)

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 AUTHOPITY OF THE STATE OF NEW YORK )

(Indian Point, Unit No. 3) ) June 14, 1982

)

CERTIFICATE CF SERVICE I hereby certify that copies of LICENSEES' MOTION FOR AN ORDER COMPELLING DISCOVERY in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 14th day of June, 1982.

Docketing and Service Branch Ellyn R. Weiss, Esq.

Office of the Secretary William S. Jordan, III, Esq.

U. S. Nuclear Regulatory Harmon & Weiss .

Commission 1725 I Street, N.W., Suite 506 Washington, D.C. 20555 Washing ton, D.C. 20006 Louis J. Carter, Esq., Chairman *** Joan Holt, Project Director Administrative Judge Indian Point Project Atomic Safety and Licensing New York Public Interest Board Pesearch Group 7300 City Line Avenue 5 Beekman Street Philadelphia, Pennsylvania 19151 New York, N.Y. 10038

Dr. Oscar H. Paris *** John Gilroy, Kestchester

Administrative Judge Coordinator l

Atomic Safety and Licensing Indian Point Project U.S. Nuclear Pegulatory New York Public Interest Commission Besearch Group Washington, D.C. 20555 240 Central Avenue White Plains, New York 10606 Mr. Frederick J. Shon*** Janice Moore, Esq.***

Administrative Judge Counsel for NRC Staff Atomic Safety and Licensing Office of the Executive Board Legal Director U.S. Nuclear Regulatory U.S. Nuclear Pegulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 l

Jeffrey M. Blum, Esq.*

New York University Law School 423 Vanderbilt Hall 40 Washington Square South New York, N.Y. 10012 Marc L. Parris, Esq. Charles J. Maikish, Esq.

Eric Thorson, Esq. Litigation Division County Attorney The Port Authority of County of Pockland New York and New Jersey 11 New Hemstead Road one World Trade Center New City, N.Y. 10956 New York, N.Y. 10048 Ezra I. Bialik, Esq.

Joan Miles Steve Leipsis, Esq.

Indian Point Coordinator Enviromental Protection Bureau New York City Audubon Society New York State Attorney 71 West 23rd Street, Suite 1828 General's Office New York, N.Y. 10010 Two World Trade Center New York, N.Y. 10047 Greater Uew York Council on Alfred B. Del Bello Energy Westchester County Executive c/o Dean R. Corren, Westchester County Director 148 Martine Avenue Mew York University White Plains, N.Y. 10601 26 Stuyvesant Street New York, N.Y. 10003

Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Appeal Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Andrew S. Roffe, Esq. Honorable Richard L. Brodsky New York State Assembly Member of the County Albany, N.Y. 12248 Legislature Westchester County County Office Building Ehite Plains, N.Y. 10601 Penee Schwartz, Esq. Pat Posner, Spokesperson Paul Chessin, Esq. Parents Concerned About Laurens R. Schwartz, Esq. Indian Point Margaret Oppel, Esq. P.O. Box 125 Botein, Hays, Sklar & Herzberg Croton-on-Hudson, N.Y. 10520 200 Park Avenue New York, N.Y. 10166 Stanley B. Klimberg Charles A. Scheiner, Co-General Counsel Chairperson New York State Energy Office Westchester People's Action 2 Rockefeller State Plaza Coalition, Inc.

Albany, New York 12223 P.O. Box 488 White Plains, N.Y. 10602 Honorable Ruth Messinger Alan Latman, Esq.

Member of the Council of the 44 Sunset Drive City of New York Croton-on-Hudson, N.Y. 10520 District No. 4 City Hall New York, New York 10007 Richard M. Hartzman, Esq. Zipporah S. Fleisher Lorna Salzman West Branch Conservation Friends of the Earth, Inc. Association 208 West 13th Street 443 Buena Vista Road New York, N.Y. 10011 New City, N.Y. 10956 Mayor George V. Begany Judith Kessler, Coordinator Village of Buchanan Rockland Citizens for Safe 236 Tate Avenue Energy Buchanan, N.Y. 10511 300 New Hempstead Road New City, N.Y. 10956 Ms. Amanda Potterfield, Esq.** Ruthanne G. Miller, Esq.***

P.O. Box 384 Atomic Safety and Licensing village Station Board Panel New York, New York 10014 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 TM A David 11. Piku's Service effected by hand delivery on June 13, 1982

• • Service effected by hand delivery at NYPIRG offices on June 13, 1982

• • • Service effected by hand delivery on June 14, 1982 l  !

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