ML20054L916
| ML20054L916 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 06/01/1982 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| Shared Package | |
| ML20054L898 | List: |
| References | |
| ISSUANCES-SP, NUDOCS 8207090063 | |
| Download: ML20054L916 (37) | |
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD I
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CONSOLIDATED EDISON COMPANY OF NEW YORK 50-247 SP (Indian Point Unit 2)
POWER AUTHORITY OF THE STATE OF NEW YORK 50-286 SP (Indian Point Unit 3)
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June
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AIDERS 0X ' 't REPORTING o
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20024 Talaphene : (202} 554-2245
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UNITED STATES OF AMERICA 1
2 NUCLEAR REGULATORY COMMISSION j
3 BEFORE THE ATONIC SAFETY AND LICEFSING ROARD 4
_____________________x l
s 5
In the Natter ofa a
6 CONSOLIDATE'D EDISON COMPANY OF NEW YORK a Docket Nos.
t 50-247 SP 7
(Indian Point Unit 2) and 50-286 SP 8
POWER AUTHORITY OF THE STATE OF NEW YORK s
9 (Indian Point Unit 3) s 10
x 11 In the Offices of Alderson Reporting Company 12 400 Virginia Avenue S.W.
Washington, D.C. 20024 13
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Tuesday, June 1,
1982 The telephone conference was convened, pursuant to i
15 notico, at 11:20 a.m.
16 BEFOREs 17 LOUIS J. CARTER, Chairman Administrative Judge 18 Atomic Safety and Licensing Board 19 OSCAR H. PARIS, Member Administrative Judge 20 Atomic Safety and Licensing Board 21 FREDERICK J. SHON, Member Administrative Judge 22 Atomic Safety and Licensing Board 23 24 25
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ALDERSON R,EPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
1 936-A 1
1 APPEARANCES:
0 2
On behalf of Licensee, Consolidated Edison Company of New Yorka 3
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RRENT L.
BRANDENBERG, Esq.
4 Assistant General Counsel
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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 Yorks t
8 RICHARD CZAJA, Esq.
l JOSEPH LEVIN, Esq.
9 Morgan Associftes, Chartered i
1899 L Street, N.W.
10 Washington, D.C.
20036 11 On behalf of the Nuclear Regulatory Commissions 12 JANICE HOORE, Esq.
Washington, D.C.
13 On behalf of New York Public Interest Research O
14 Group:
15 AHANDA POTTERFIELD, Esq.
l 16 On behalf of the Union of Concerned Scientists:
17 JEFFREY BLUE, Esq.
New York University of Law 18 40- Washington Square South, Room 423 i
New York, New York 19 20 21 22 23
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ALDERSoN REPORTING COMPANY,INC,
!.00 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 j
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CHAIRMAN CARTER:
I would like to suggest that
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2 before each person speaks that they identify 3
themselves.
Further, since some of the parties are not
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together in the same room, particularly Mr. Levin and 5
Mr. Czaja, thst 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 seguments on the 9
USC and NYPIRG motion to compel discovery?
10 I would like the racord to show also that the 11 Licensea's answer has been hand delivered to my office.
12 I now have all of the papers before me.
13 HR. LEVIN:
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 18 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 Ma y 31, 19827 21 MS. HOOREa 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 24 problem.
25 MS. POTTERFIELD:
This is Amanda Potterfield.
9 ALDER $oN REPORTING COMPANY,INC,
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400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
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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.
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CHAIRMAN CARTER:
Are you also lacking the 5
memorandum in support of the motion to compel?
6 MS. MOORE 4 Y,es.
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?
MS. MOORE:
No, it is not, so it is not of 10 11 importance.
I just noting it to show that this is one l
12 of the documents we don't have.
l 13 CHAIRMAN CARTER:
I am spra that it is on its l
14 way, and if there is any difficulty, you can let Mr.
15 Blum know or Ms. Potterfield.
16 MS. MOORE:
I will.
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17 CHAIRMA N CARTER:
I would propose t, hat 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 action to compel discovery.
Then we 21 would hear from Mr. C ada for a couple of minutes and 22 Mr. levin for a couple of minutes, and Mr. Brandenburg 23 for a couple of minutes.
Then, we will have Mr. Blum or
)
24 Ms. Potterfield make any rebuttal.
25 Do you want to proceed, Mr. Blum?
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1 MR. BLUMa Thank you, Judge Carter.
2 Our motion to compel is based first on the 3
fact that depositions are routinely and normally allowed
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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 tha.t 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 td be able co l
14 to notice them for deposition.
We pro,ceeded to not rely upon written notice 15 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 Licansee attorneys right away proposing a 19 range of times that we* would be ame.nable to setting 20 things up according to their convenience.
21 There are two arguments that the Licensees has 22 made that I would like to respond to.
One is that we 23 should rely simply on interrogatories, and if the any
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24 answers to interrogatories regarding the witness were 25 inadequate, we should simply ask to be able to file more l
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v 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 ansvers to 2
in te rroga to ries.
3 We think that such a procedure would be O
4 wasteful and time consuming, and ultimately futile, 5
because I think what Licensees' ansvers 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 14 there is a ' great deal of information relating to 15 emergency plans that is in the control of the Licensees 18 and that we have no other way to get other than by 17
- deposing their key witnesses.
18 We need tha 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 i
22 at the earlier hearing eccentially reversed 10 CFR Part 1
23 2 and thereby excluded depositions from the proceeding.
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24 This argument does not make too much sense because if 25 the rules are going to be countermanded by a Licensing ALDER $oN REPORTING COMPANY,INC, 400 VIRGINtA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2346
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1 B o e.r d, that should at least bo stated' explicitly ind
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2 there should be good reason given'f'or it.
3 We naturs117 assumad that depositions vould be O
4 available during the discovery period'because.we had
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5 heard nothing to the contrary from either the Licensees 6
or the Board.
We did proceed to try to set them esp,3s I
7 expeditiously as possible as soon as we got the 8
information on the identities of*the witnesses.
9 CHAIRHAN CARTER:
Thank you, Mr. Blum.
10 Now, Nr. Czaja.
11 HR. 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, hefsimply is
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14 not in 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 action papers on Friday afternoon of Memorial Day i
18 weekend.
The first oral notice we had was on May 24 at 19 about 4:00 p.m.,
whirh was four business days before the 20 close of discovery set by the Board.
We don 't believe 21 that that can be construed to be reasonable written 22 notice as required by 10 CFR Part 2.
23 Mr. Blum then offers presumably some sort of 24 explanation --
25 CHAIRMAN CARTER:
Excuse me, Mr. Czada, but I O
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ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE. S.W., WASHINGTON. D.C. 20024 (202) 554-2345
942-A 1
vant 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.
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MR. CZAJA That is correct, Your Honor.
5 There was a conversation with Mr. Levin, and 6
3r. Levin will correct me if I am wrong,, on May 2u at 7
4: 00 p.m.
There was a subsequent oral con versation the 8
next day between Mr. Levin and Mr. Blum, in.which Mr.
9 Levin stated 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 CHAIRH1.5 CARTERS Mr. Cza:!a, excuse me.
What 14 was the substance of the answer to Mr. Blum 's oral 15 request?
16 HR. CZAJAa I think I will let Mr. Levin deai with that, since he is the person who gave that answer.
18 CHAIRMAN CARTERS Good.
19 HR. LEVIN:
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 ER. LEVINs I said to Mr. Blum that we would
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24 not provide witnesses for deposition, which is what I 25 had indicated to him the day before I thought our
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1 response would be.
I told him the reasons for that.
In 2
his motion, he suggests that the only reason given was 3
that it was inappropriate, and that is not, of course, 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
in 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 CHAIRHAN CARTERS Mr. Levin, speak a little 12 more loudly, please.
13 HR. LEVINt All righ t.
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14 For two reasons, primarily, it would have been 15 important to have known at the April 13 and 14 16 prehearing that the Inter.enors wished to depose our 17 emergency planning witnesses because it would have 18 affected the schaduling.
19 It takes time to prepare witnesses for 20 depositions and to get then deposed, particularly in.an 21 exmedited sche'duling situation, such as we are in now.
22 It was never raised.
That was essentially the substance 23 of the conversation.
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24 Hr. Blum said that he would notify the other 25 In terveno rs.
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ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554 2345
944-A 1
CHAIRMAN CARTER:
Back to you, Mr. Czada, do
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2 you want to continue now?
3 MR. CZAJA:
Yes, Your Honor.
,D 4
Presumably for some sort of explanation for 5
this course of conduct, 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 Braddenburg advised the Board and Mr. Blua 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-l l
13 close of discovery.
14 So initially, Licensees contend that there has 15 been no compliance with 10 CFR Part 2 in this instance.
16 CHAIRMAN CARTER.
Mr. Cza da, when was Mr. Blum 17 or USC and NYPIRG advised as to the identity of all of
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18 the witnesses, namely, Dr. Dynes, Dr. Lecker, and the 19 others?
20 HR. CZAJA:
Dr. Dynes and Dr. Lecker, he was 21 advised a week ago last Thursday.
l 22 CHAIRMAS CARTER:
Give me a date on that, if I
l 23 you could be a little more specific.
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24 HR.. CZAJA:
I believe that is the 20th, Judge, 25 just looking at the calendar here.
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1 ER. BLUM:
Judge,that is right, it was the 2
20 th.
3 MR. CZAJA:
It would have been the 20th of May 60 4
when we learned the identify of USC and NYPIRG's 5
witnesses, and USC and NYPIEG learned the identify of 6
Licensees' wi tn e sse 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 a'nd NYPIRG now wishes to depose.
16 The third point raised in our answer is that 17 there is no necessity foC deposition testimony in the 18 circumstances of this case.
USC and NYPIRG is informed 19 of the subject matter of the witnessas' testimony in the 20 Licensees' interrogatory answers.
21 They have been informed of the grounds for the 22 opinions of these experts.
They have been provided with 23 a list of publications of these experts.
They have been
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24 advised in the interrogatory answers as to those answers 25 which these experts contributed.
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They have had, with respect to Parsons 2
Brinkerhoff, the methodology document that Parsons i
3 Brinkerhoff used in preparing the evacuation time 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 Threa Mile Island Restart hearings, in 7
which I believe UCS was a Intervenor.
8 CHAIRMAN CARTERa Thank you, Mr. Czaja.
9 ER. CZAJA:
If I could just make one more 10 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
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14 as still unclear as to what alleged defects to our 15 answers are, the remedy 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 believe that in assessing the 23 propriety of Licensees' answers, USC and NYPIRG
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24 information with regard 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
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1 answers, Licensees are totally in the dark as to what 2
these witnesses of USC and NYPIRG are going to testify 3
to.
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4 Despite clear interrogatories, despite the 5
provisions of the Federal rules, the Licen sees are 6
entitled to that information, and that information is 7
not in the USC and NYPIRG interrogatory answers.
8 JUDGE SHON:
Mr. Czajg, I would like to ask
'9 you one question, perhaps a double-headed question 10 before you stop.
11 NR. CZAJAa Yes, Judge.
12 JUDGE SHON:
What of USC and NYPIRG's apparent 13 position that they did not know that depositions would
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14 he necessary until they had looked 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 HR. CZAJA:
Your Honor, responding to the l
20 first question, as I said, I still do not know in which 21 respect our interrogatory answers ere alleged to be i
22 inadequate to allow USC and NYPIRG to participate in 23 these hearings, which specify the subject matter of the
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24 witnesses' testimony, which is more than what USC and l
25 NYPIRG has done.
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1 We have stated the grounds for their
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2 opinions.
We have given them a list of publications.
3 They know Dr. Dynes from Three Nile Island.
They have 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 expeditio6s, first of all, if counsel for the 9
Licensees and the Licensees witnesses *are now required to 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
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15 ' impossible task, Your Honor, and we don't feel that this i
16 will expedite the proceeding.
17 CHAIBHAN CARTER:
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
- 32. CZAJA:
Our position, Your Honor, is that l
22 the allegad insiaquacy of our interroga tory answers is l
l 23 not a ground f or obtaining deposition testimony, where
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24 that deposition testimony would not otherwise be q
25 available.
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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
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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 moti,on.
They have had as 9
auch ". time with the interrogatory answers as they have 10 known about the identity of the witnesses.
11 CHAIRHAN CARTER:
Under that procedure, when 12 would they be permitted to take the depositions.in this 13 case?
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14 HR. 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 CFR Part 2 18 for reasonable written notice and the requirement of the 19 Board's discovery deadline by pointing to inadequacies 20 in interrogatory answers.
21 CHAIRMAK CARTER:
It seems to me, Mr. Czaja, t
22 under your theory of procedure, the depositions would be 23 taken af ter the hearing was over.
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24 HR. CZAJA:
That is correct, Your Honor.
We 25 had a prehearing conference on April 13 and April 14,
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400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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1 and the Intervenors were advised at that time that 2
Parsons Prinkerhoff would be testifying, and we heard 3
nothing about depositions until four days before the
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close of discovery.
5 CHAIRMAN CARTER:
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. Blum in that regard.
13 We all had,a 7ery wholesome discussion of CO 14 discovery at the prehearing conference on the 13th and 15 14th of April in 3hite Plains, which was a 16 month-and-a -half ago, where narry a word was uttered by l
17 Mr. Blun or by Hs. Potterfield, or'by anyone else at 18 that time about depositions.
Nonetheless -- this is 19 responding to Mr. Blum's point that he needed to know a 20 little more about our witnesses before he could conclude 1
21 that he would require depositions -- at the prehearing 22 conference, a t page 656 through 657 of that transcript, 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 f ading O
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l ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 354-2345
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1 away.
Can you make yourself be heard a little better?
2 MR. BRANDENBURG Yes.
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3
-- not only the subjec't matter of the (O
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 first 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, Hr. Brandenburg,
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14 I could not hear that last statement.
Page 5 of what?
15 HR. BRANDENBURGs 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 19 cross-examine at the hearings, tha t,;here was no 20 prejudice by virtue of their not being able to have had 21 depositions previously.
22 In our particular situation, as we indicated 23 on the 13th of April and as we reaffirm here for all of
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24 the parties to this quarrel, the Parsons Brinkerhoff 25 representatives will be made available at the hearings l (v( b I
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINtA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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for cross-examination.
I am sure that Mr. Blum can
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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 5
we cite, as I said, a t page 5 of our answer, it is quite f
6 clear under a Commission precedent that no prejudice 7
vill fall to Mr. Blum because of that.
8 There has not been, it seems to me, Mr.
9 Chairman and other Mgabers of the Board, a sufficient 10 discussion yet this morning on the desirability of 11 depositions just as a case management device, apart from 12 whether they might be required.
13 I think, again, if Mr. Blum contends that 10 14 CFR Part 2 would require depositions, I might refer him 15 to pace 3 of out answer where it is quite clear that 16 under established Commission rules of practice, 17 depositions may be limited by order of the Board.
So 18 there is certainly no requirement per se within 10 CFR 19 Part 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 i
i 24 that the Commission has imposed upon all of us to 25 complete these proceedings by September, realistically O
s ALDERSoN REPORTING COMPANY,INC, 400 VIRGINtA AVE., S.W., WASHINGTON, D.C. 20024 (202) 55A 2345
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1 depositions could not be accommodated within this 2
time-table.
3 I think all of us agree that the time-table, t
4 which was established by the Boa'rd 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 will be no dissent from that.
8 CHAIRMAN CARTERS. All right, Mr. Brandenburg, 9
can you bring year remarks to a close.
You have now 1
10 spoken as long as your other two compatriots.
11 MR. BRANDENBURG Fine.
12 CHAIRMAN CARTER:
Is there anything more that 13 you have to point out to' us here that has not been 14 discussed so far?
15 HR. BRANDENBURG No, I believe I have covered 16 it.
17 CHAIRHAN CARTER:
Thank you.,
18 HR. LEVIN:
This is Joe Levin, and I do have a 19 co mm en t.
20 CHAIRMAN CARTER:
Mr. Levin.
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21 HR. LEVIN This is not repetitive, I trust.
22 Obviously, Judge Carter, and Judges Shon and 23 Paris, this is within the discretion of the Board.
k, 24 Despite the fact that the Intervenors hav,a not complied 25 with the strict language of the regulation in providing O
m ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
9 54-A 1
written notice, nevertheless discre tion of the Boa rd is 2
called for here.
3 I almost have a sense that this request for 4
depositions was an after-thought by the Intervenors, and 5
ve would as the Board's view in determining whether to 8
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 case, 15* certainly under emergency planning.
That is going to l
16 present us with even greater scheduling problems than 17 unilateral taking of depositions that the Intervenors i
18 have proposed.
39 CHAIRMAN CARTER:
All right, Mr. Blum or Ms.
20 Potterfield, do you have any rebuttal?
I 21 MS. POTTERFIELD:
Yes, Your Honor, I would 1
22 like to address myself, as Mr. Levin said, the technical l
l 23 problems of our proceeding informally rather than l/
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24 formally with our discovery requests.
l 25 I might say that we are all working under the l
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
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same difficult timeframe.
It was our hope that by
[}
2 proceeding informally, where we had had some luck before 3
with Mr. Morgan, 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 greate 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 that the Intervenors I
14 had had access to the very complicated and sophisticated 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 de apologize for the lateness of our l
23 request and submit that we made the request informally 24 in order to mitigate any inconvenience that we might be 25 causing.
O l
ALDERSoN REPORTING COMP ANY, INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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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 4
had access to a great volume of material about their 5
estimates and the data that went into them.
This is the 8
first occasion to prepare ourselves the kind of 7
testimony about 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 to feeling that it would expedite the hearings when these 11 witnesses eventually took the stand, as well as enable 12 us to prepare a acre cohesiva case now we do have the 13 written information that we have gotten about the
()
14 estimates.'
15 With regard to Dr. Dynes who did testify at 16 Three Nile Island, it is true that we do have access to 17 that testimony.
If there is a spirit of settlement 18 he re, we will b e glad to f orego our request for deposing 19 that witness because he did testify at Three Mile 20 Island.
' 21 1 might also mention 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 i f ),
24 to the licensees in the same way that Dr. Dynes' 25 testimony is available to us.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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1 It may well De that when Mr. Brandenburg told 2
us at the prehearing conference that they would be 3
presenting testimony from the Parsons Brinkerhoff people a
4 *that it would have 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 that 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 for the depositions, and that is 10 the reason for the late request.
11 We feel that it is important for the people 12 that we represent that we prepare ourselves as 13 completely as.possible on the evacuation time estimates, (K
14 which are critical.
I 15 CHAIBMAN CARTER:
Would you clarify something, 16 Ms. Potterfield.
With regard to the Parsons 17 Brinkerhoff, you received the evacuation time estimates 18 on May 18th?
19 MS. POTTERFIELD:
We asked informally, Your 20 Honor, so you won't know about it, for the data that 21 went into the evacuation time estimates.
We asked for i
i 22 that become the commencement of formal discovery in our 23 letter dated sometime at the end of April, following up
(
l 2<4 on the Board's suggestion at the prehearing conference 25 that we begin informal discovery even before formal ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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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 D
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 plans themselves.
7 CHAIRMAN CARTERS After that, what did you 8
do?
9 NS. POTTERFIELDs After that, on the 20th we 10 raceived 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 true 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 asy"ed informally for depositions.
We regret those three 17
?
18 ort four days if that really is the difference.
19 CHAIRMAN CARTER:
All right.
l 20 Ms. Potterfield, what is your answer to the 21 point that cross-examination is sufficient.
Is th'ere 22 any answer to that?
23 SS. POTTERFIELD:
Yes, Your Honor.
We are i l'
)
24 trying to prepsrs our case on the evacuation titse 25 estimates.
If we have to wait until we cross <-examine O
ALDERSoN REPORTING &OMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGJDN, D C. 20024 (202) 554 2345
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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. Czada'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 t, hat 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
(
14 responsibility to the people we represent to cake it as 15' a cogent a scrutiny of evacuation time estimates as we 18 are able.
17 CHAIRMAN CARTER:
All right.
18 Is there anything further to come before us on 19 this point?
Is there anyone who hasn't been heard who 20 wants to be heard?
21 JUDGE PARISa 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.
)
Are you satisfied, Ms. Potterfield, that the
/
24
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25 testimony given at Three Mile Island will be the same as i\\s ALDERSoN REPORTING COMPANY, INC.
400 VIRGINIA AVE., S.W WASHINGTON. D.C. 20024 (202) 554 2345 1
9 60 -A )
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and fully r elevan t to Indian Point?
(?s)
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MS. POTTERFIELD:
Your Honor, I don't have any 3
idea that it will be the same as, but in the spirit of
(
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 v'ery important aspect of the 9
case for USC and NYPIRG.
We are particularly interested 10 in what Licensees ar,e, 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 that we can 15 reach a compromise because we feel that the depositions 16 are important, our compromise would he, to withdraw our
.. - 17 request to depose Dr. 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 Brand enb urg 22 from Con Edison.
Your Honor, point of clarification.
23 CHAIRHAN CARTER:
Yes.
, (( )
24 You had askec earlier when the first time was 25 that the Intervencrs had received the evacuation time
(
ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE, S.W, WASHINGTON. D.C. 20024 (202) 554-2345
961-A 1
estimates, and I am not sure that the record is entirely 2
clear'on that point, Hr. Chairman.
(.
3 In point of fact, a copious detsil about the 4
evacuation time estimates has been available to the 5
Intervenors for probably almost a year now in the forn 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 9
Parsons Brinkerhoff has prepared those estimates and 10 vill be offering testimony in the hearings was disclosed 11 to the Intervenors at least at the prehearing conference 12 on April 13.
13 HS. POTTERFIELDs It is the data that went h
14 into the preparation of the evacuation time estimates to 15 which our contentions are addressed, and which we were 16 avaiting before we felt like we could prepare ourselves 17 for that aspect of the Licensees' case.
18 HR. CZAJAs 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 chronology here which Es. 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 REPoRUNG COMPANY,INC, 400 WtGINTA AVE., SV! WASHINGTON, D.C. 20024 (202) 554-2345
9 6 2-A 1
I just wanted to add one thing on the argument 2
about no prejudice if we are f.enied the right to take 3
depositions.
4 Part of the argument is that answers to S
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
vere answered, but they were the kind of answers like:
s 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 h
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-examination and that would, first of all, nake
()
24 cross-examination much less effective and much more 25 contradictory and self-defeating.
This would both be ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554-2345
963-A 1
prejudicial to USC and NYPIRG and probably boring for 2
everyone in the hearing room while this is going on.
3 MR. CZAJAs 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
inadequace, USC and NYPIRG 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 demonstrates, as Mr. Levin 13 pointed out, that if there is going to be depositions 14 here, we have to depose the three witnesses that USC and 15 NYPIRG has identified to date.
16 CHAIRMAN CARTERS Mr. Blum, are you objecting 17 to the deposition of your witnesses?
18 HR. BLUM No, we are not.
19 CHAIRMAN CARTERS Do any of the Judges have 20 any further questions?
21 I sus 2ast that we have heard a good statement l
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 and telephone l
i ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. 0.C. 20024 (202) 554-2345
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1 numbers.
O 2
JUDGE SHON:
Judge Carter, do you think that 3
ve could move suf ficiently expeditiously to confer on 4
another line by ourselves and rule while everyone is on 5
the line, if they are villing to hang on to the 6
telephone line for a while?
7 CHAIRMAN CARTER:
If the parties are villing 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 vill try to get back on the line 12 within about five or ten minutes to at least give you a tj3 status report as to whether or.not we can dispose of 14 this today.
i 15 JUDGE SHON:
Is there anyone who cannot hang l
16 on for another five or ten minutes?
17 (No response.P 18 JUDGE SHON:
Okay, hang on and we vill go off 19 the line.
20 CHAIRMAN CARTER:
We vill take a short 21 adjournment while the Judges confer on anothe line.
22 (A short recess was taken.)
23 CHAIRMAN CARTER:
The Judges have returned.
(( )
24 HR. BRANDENBURG Perhaps we could have a roll l
25 call, Mr. Chairman.
l l
($)
ALDERSoN REPORTING COMPANY. INC.
400 VIRGINTA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
965A 1
CHAIRMAN CARTERS Yes, certainly.
2 Is Mr. Craja there?
3 MR. CZAJA:
Present, Mr. Chairman.
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. MOORE:
Yes, sir.
10 CHAIRMAN CARTER:
Jeffrey Blum?
11 MR. BLUM:
Yes, sir.
12 CHAIRMAN CARTER:
Ms. Potterfield.
13 MS. POTTERFIELD:
Yes, I as here.
()
14 CHAIRMAN. CARTER:
We shall issue a preliminary 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 method, 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 for written 22 requests for arranging de position s.
We think that the 23 exigencies of the present proceeding are such that the lf) 24 attorneys should use every effort to make oral 25 arrangements in order to see that arrangements can be r
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554 2345
9 6 6-A 1
made for the taking of depositions.
2 Three, depositi,ons requested in the UCS and 3
NYPIRG motion to compel discovery filed May 27th, 1982, 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 l
8 consult,with each other in a more expeditious manner.
9 We want to encourage voluntary discovery and disclosure, 10 and where any motion is found to be absolutely necessary 11 that any motion shall describe fully the efforts of the 12 parties in'attemptind to resolve the disputes.
13 We do have a serious problem with time.
If h) 14 any filing.is to be made, the due dates required will be 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.
I 19 We feel also that all discovery should be 20 expedited to the maximum extent reasonably necessary to i
21 accommodate this a,ccelerated hearing schedule.
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
.O ALDERSoN REPORTING COMPANY,INC, 400 VIRGlhtA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
9 67-A 1
shall put this order into writing at the earliest O
2 opportunity.
3 MR. LEVIN:
Your Honor, this is Joe Levin in 4
5 We specifically requested permission to depose l
6 the intetvanors' witnesses, are you granting us now th e 7
opportunity to take their deposition?
8 JUDGE CARTER Ms. Potterfield said that they 9
had no objection to that.
10 MS. POTTERFIELDs We have no objection to 11 that, Mr. Levin, and we can work out a time that is 12 convenient.
13 MR. LEVIN:
Fine.
()
14 This vill 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 We haVe accepted the statement of counsel for 19 the licensees that they will require up until Monday to 20 complete their direct examination.
As a kind of 21 in terpretation 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
()
24 after the 7th, that good f aith requires that the witness 25 be made available forthwitt, O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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It will start not later than June 8th in order 2
to accommodate the attorneys who have said t h,a t they are 3
required for the preparation of direct testimony.
On 4
the other hand, that is not intended as a device or 5
means to avoid the taking of depositions.
6 3R. CZAJA I am somewhat confused 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 NS..POTTERFIELDa Do I understand you to mean 13 that we have to deliver our direct testimony in
}
14 Washington on Honday?
15 JUDGE CARTER:
No, I am only talking about to that portion of the rules relating to discovery 17 actions.
Because we are having these time dif ficulties
- 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 *he discussions which 21 we had this morning that attorneys are in dispute over 22 notices within a period of a day or two or three.
This 23 is intended, so far as these discovery motions are r()
24 concerned, and we vill try to cla rify this in the rule.
25 Again, we encourage you to continue as you 4
ALDER $oN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2346
9 6 9-A 1
would in any other type of legal proceeding in which you 2
are involved to attempt to work it out on the telephone, 3
and proceed with what you have to do to provide the i
4 proper opportunities under the rules for discovery.
5 It is nov 21 minutes after twelve.
I think we 6
have heard from everyone.
We have heard from the 7
Board.
As I said,'ve shall try to get this in writing 8
as soon as possible.
Thank you very much for your participation, 9
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 l
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21 l
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l ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
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xue:rxa arcutxxoar Coaszsszcx This is to certify that the attached proceedings. before the
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^roarc SarzrY Ano trCrusrNo sonno in the matter of: Con zd Co of New Yoz;k (Indian Point Unit 2) Power Authority of thd State of New York (Indian Point Unit 3)
- Date of Froceeding:
.7,,,,,
3
,oq9 Docket Number:
50-247 SP and 50-286 SP Flace of Proceed.ing:
Washincton, D.
C.
wore held as herein appears,. and that this is i:he original transcript thereof for the file of the Commission,
Patricia A. Minson Official Reporter (Typed)
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$4 d 74Nov
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Official Kaporter (Signature) l
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