ML20070K606

Motion for Expedited Order Compelling Continuation of Gr Thompson & Sc Sholly Depositions as Witnesses on Contentions 2.1(a) & 2.1(d).Witness Testimony Incomplete. Certificate of Svc Encl

ML20070K606
Person / Time
Site:	Indian Point
Issue date:	12/28/1982
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 8212300230
Download: ML20070K606 (14)

Text

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e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 0{gfpgD ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Jame s P . Gleason, 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 AUTHORITY OF THE STATE OF NEW YORK ) December 28, 1982 (Indian Point, Unit No. 3) )

)

)

LICENSEES' MOTION FOR EXPEDITED ORDEP COMPELLING CONTINUATION OF DEPOSITIONS OF GORDON R. THOMPSON AND STEVEN C. SHOLLY Consolidated Edison Company of New York, Inc. and the Power Authority of the State of New York, licensees of Indian Point Units 2 and 3, respectively (licensees), move the Atomic Safety and Licensing Board (Board) for an order compelling the continued deposition of Gordon R. Thompson and Steven C. Sholly, Union of Concerned Scientists /New York Public Interest Research Group (UCS/NYPIRG) , witnesses on Contentions 2.l(a) and (d).1 The last date for completing

1. UCS/NYPIRG has continually ignored Board-ordered deadlines respecting Contentions 2.l(a) and (d). See Power Authority's Memorandum in Support of Consolidated Edison's Renewed Motion to Dismiss UCS/NYPIRG Contentions 2.l(a) and l

2.1(d) at 1-3 (Dec. 20, 1982); Con Edison Mailgram (Dec. 15, 1982).

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licensee. depositions of intervenor witnesses on Commission

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Question 2 contentions was December '23. As grounds, l icen-sees set out the following:

1. On Thursday morning, December 16, 1982, coun-sel for the Power Authority of the State of New York (Power Authority) contacted counsel for UCS/NYPIRG by telephone in an ef fort to establish a date, time, and place for the Power Authority to take the depositions of UCS/NYPIRG witnesses Thompson and Sholly.1 Counsel for the Power Authority of fered to take the depositions on Friday, December 17, or Monday and Tuesday of the following week, and pointed out that the deadline for concluding depositions was December 23.2 Counsel for UCS/NYPIRG stated that he would contact his witnesses to determine their availability.

1. At that time Consolidated Edison Co. of New York, Inc. (Con Edison) had pending before the Board a motion to dismiss Contentions 2.l(a) and (d) for failure of UCS/NYPIRG to comply with Board Orders regarding identification and qualifications of witnesses and designation of documents.

2. The Power Authority had only the afternoon before, Wednesday, December 15, received by mail, in violation of the Board's Order of December 3, Memorandum and Order (Memorializing Rulings of Telephone Conference on Decem-ber 3, 1982) at 3 (Dec. 8, 1982), UCS/NYPIRG's witness qualifications and a list of 121 documents upon which UCS/NYPIRG claimed its witnesses would rely. See Qualifi-cations Statements for UCS/NYPIRG Witnesses on Commission Question Two (Dec. 13, 1982). Con Edison did not receive this material until Friday, December 17. The " list" was not actually an identification of documents but rather a reference to all the documents UCS/NYPIRG had earlier identified in response to interrogatories. Id. at 1-2.

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2.. Counsel for the Power Authority and UCS/NYPIRG spoke again on Friday morning, December 17. Counsel for UCS/NYPIRG stated that the witnesses could be made available on either Wednesday, December 22, or Thursday, December

23. Counsel' for the Power Authority expressed concern over scheduling the deposition so close to the deadline, but was informed by counsel for UCS/NYPIRG that the state of prepar-l ation of the witnesses was such that if licensees wished to secure useful information the depositions should be held later in the week. Based upon that representation counsel for the Power Authority tentatively agreed to hold the depo-sition on Thursday, but informed counsel for UCS/NYPIRG that  !

it would be necessary to clear that day internally with other Power Authority counsel, with Con Edison (whose motion for dismissal was still unresolved at the time of that con-ve rsation) , and with Nuclear Regulatory Commission (URC) j staff.

3. After discussions with the interested parties, I counsel for the Power Authority once again contacted counsel for UCS/NYPIRG and explained that for several reasons, beginning the depositions on Wednesday would be prefer- I able: first, it would allow those licensee lawyers who were i

I responsible for the probabilistic risk portion of the case i

to be present in the event that the witnesses intended to l

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testify about risk analyses 1; second, it would allow suffi-cient time to assure completion of the ' deposition, which might run mcce than one day. It was tentatively agreed that the deposi tions would begin at noon, December 22. .

4. Late Monday afternoon, December 20, counsel for UCS/NYPIRG telephoned counsel for the Power Authority and stated that, despite the earlier representation, Dr.

Thompson would be unavailable on December 22, but could b,e in Washington for a deposition on December 23.2 Counsel for.

the Power Authority reluctantly agreed, and requested that the deposition begin at 9:30 or 10:00 a.m. in order to have some chance of completing the deposition that same day.

Counsel for UCS/NYPIRG would commit only to 11:00 a.m.

Counsel for the Power Authority again expressed concern that there would be insufficient time to complete the deposition and stated that it might be necessary to go late Thursday evening and perhaps continue on Friday. Counsel for UCS/

NYPIRG, while expressing the view that the depositions could be completed, did not reject or suggest in any way that

1. A conflict existed in these lawyers' schedules due to the prior scheduling of the deposition of a Friends of the Earth /New York City Audubon Society Question 1 proba-bilistic witness in New York on Thursday, December 23.

2. It was counsel for UCS/NYPIRG who suggested that Dr. Thompson appear in Washington rather than his office in Camb ridge, Massachusetts. The reason given for this preferred arrangement was UCS/NYPIRG's plan to present Dr.  !

Thompson and Mr. Sholly, who is based in Washington, as a l panel.

i L_______ _ _ _ . _ _ _ _ _ . _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ _ _ . _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

y either Dr. Thompson or Mr. Sholly would be unavailable

_ Thursday evening or Friday.

5. On Tuesday, December 21, counsel for the Power Authority served upon counsel for UCS/NYPIRG, by express-mail, a confirmation of the date, time, and place of the depositions, and stated clearly'that-the depositions would

" continue until completion." Letter from Joseph J. Levin, Jr. , Esq. to Jeffrey Blum, Esq. (Dec. 21, .'12) (attached).

Late Tuesday af ternoon counsel for the Power Authority received a message from counsel for UCS/NYPIRG informing him that Dr. Thompson could not be available for deposition until noon Thursday. In a Wednesday afternoon conversation, counsel for UCS/NYPIRG confirmed his message of the previous day, acknowledged receipt of the Power Authority's express mail letter, and made no objection to the statement in the letter that the deposition would continue until completion.

6. The deposition of Mr. Sholly and Dr. Thompson began at noon, Thursday, December 23, with counsel for the Power Authority, Con Edison, URC staf f, and UCS/NYPIRG pre-sent. Approximately 1 hk to 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> into the deposition, counsel for UCS/NYPIRG informed licensees' counsel that Dr.

Thompson would have to leave at 6:00 p.m. and could not return on Friday.

7. Further complicating the deposition was the almost total lack of readiness of the UCS/NYPIRG wit-nesses. While the witnesses offered the opinion that their

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- 6u-testimony was approximately 50% complete, they then stated that they were unprepared at that time to commit to any par-ticular design either for a filtered vented containment or

. separate containment device. Indeed, when asked to at least narrow the field of such designs to two, three, or even 4

five, they again refused to commit themselves. Thus, funda-mental information which is essential'for preparation of licensees' responsive testimony on Contentions 2.1(a) and (d) had not been decided upon, as of December 23, by the UCS/NYPIRG witnesses. Additionally, because of the nature of written testimony, the licensees will be unable to secure any detailed information or even consider the underlying reasons for the witnesses' testimony until the hearing

, itself. Further examination suggested that the estimated 50% completion of testimony consisted almost exclusively of a review of the literature in preparation for making deci-3 sions about what direction the testimony would take.

8. Confronted with a truncated deposition, an l almost complete lack of preparation by UCS/NYPIRG witnesses, 4

and numerous additional areas to explore with there wic-nesses,1 licensees requested that UCS/NYPIRG continue the

1. For example, licensees were not permitted time to i explore the witnesses' knowledge of. dominant risk scenarios, I the claimed quantitative risk reduction of the particular designs suggested by UCS/NYPIRG vis-a-vis these scenarios, and the relationship between the filtered vent and separate l

containment' designs suggested by UCS/NYPIRG and the accident mitigation features already in place inside containment at l

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1 deposition so that licensees.wauld have an opportunity to discover prior to trial the underlying rationale for what-ever specific proposals Dr. Thompson and Mr. Sholly might make. Counsel for UCS/NYPIRG refused.1

9. The f ailure to grant licensees' request to continue-the Thompson /Sholly deposition would severely prejudice licensees' preparation of their cases and will, consequently, violate the due process rights of licensees.

Moreover, any curtailment of licensees' right to complete discovery would reward UCS/NYPIRG for def aulting on deadlines.

WHEREFORE, licensees respectfully request that UCS/NYPIRG be ordered to produce Dr. Thompson and Mr. Sholly for deposition on December 30, 1982, said deposition to con-tinue until completion. Additionally, because of the extremely abbreviated time for filing licensees' testimony the Indian Point f acilities. Additionally, at "this deposi-tion, licensees received for the first time an accurate designation of those documents upon which the UCS/NYPIRG witnesses intend to rely. The prior list (provided on December 15) contained 121 documents consisting of several thousand pages. At the deposition the UCS/NYPIRG witnesses reduced the number of documents to 47 and specified those portions upon which they will rely. It is now possible to determine the extent to which further questioning on these documents is necessary.

1. When asked when they expected to know what their recommendations would be, the witnesses gave December 28 as the only certain date.

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in response to UCS/NYPIRGi l licensees. request that the December 28 filing 'date for the -UCS/NYPIRG -testimony remain

' unchanged.

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1. It is due on January 12, 1982. Memorandum and Order (Memorializing Rulings of Telephone Conference on December 3,1982) at 3 (Dec. 8, 1982).

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q Rqsp ct lly submitted,

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' Brent L. Brandenburg ) V QtfarYes Morgan { JP. N Assistant General Cochsel pful/F. Colarului Vos@h J . Levin, Jr.

CONSOLIDATED EDISON CO.

OF NEW YORK, INC. MORGAN ASSOCIATES, CHARTERED Licensee of Indian Point 1899 L Street, N.W.

Unit 2 Washing ton, D. C. 20036 4 Irving Place (202) 466-7000 New York, New York 10003 Stephen L. Baum General Counsel Charles M. Pratt Assistant General Counsel POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian Point Unit 3 10 Columbus Circle New York, New York 10019 (212) 397-6200 Bernard D. Fischman Michael Curley Richard F. Czaja David H. Pikus SHEA & GOULD 330 Madison Avenue New York, New York 10017 (212) 370-8000 Dated: December 28, 1982 E-______________________________-_____________________________-.---..-----__________--

taw erricca ATTACHMENT MORGAN AsSOCIATEC, CH ARTER ED 18 9 9 L S T R E C T, N. W.

FN AN M J. AL3 CTTA, JR. WASHINGTON, D. C. 20036 HowARD T. ANDERSON CDWARD ASHwORTH

. J. RICH ARD COM EN PAUL r.COLARULLI w1LLI AM A. CAG LCS HOPE CASTM AN M ARY ANNC H ALL PAM CLA S. HO ROwtT2 MMON DA M. HUGH ES ROS CRT H. HUSBANDS

• SU S AN 8. M APLAN Jos CPH J. LCviN, JR.

CH ARLES MORG AN, JR. '

B A R R Y S. PR AVC R sTCvCN C.v4Gtc December 21, 1982 Mr. Jeffrey Blum, Esq. ,

New York University Law School 423 Vanderbilt Hall 40 Washington Square South New York, New York 10012 Re: Depositions of Steven Sholly and Gordon Thompson

Dear Mr. Blum:

This will confirm our agreement that the Union of Concerned Scientists will nake Steven Sholly and Gordon Thompson available for deposition at 11:00 a.m. , Thursday, December 23, 1982, at Mr.

Sholly's office, Suite 1101, Dupont Building, 1346 Connecticut Avenue, N.W., Washington, D.C. This deposition will continue i until completion.

This letter also serves to confirm that I notified you to have your witnesses oring with them to the deposition all docu-i ments upon which they intend to rely in their testimony.

i ere y, se h n, r.

JJ L ,J r. /pa t cc: Henry J. McGurren Steven M. Sohinki o,

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION-

. ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

James P. Gleason, Chairman Frederick J. Shon Dr. Oscar H. Paris J

)

In the Matter of )

)

CONSOLIDATED EDISON COMPANY OF ) Docket Nos. ~~

NEW YORK , INC. ) 50-247 SP (Indian Point, Unit No. 2) ) 50-286 SP

)

POWER AUTHORITY OF THE STATE OF ) Dec. 28, 1982 NEW YORK )

(Indian Point, Unit No. 3) )

. )

CERTIFICATE OF SERVICE I hereby certify that on the 28th day of December, 1982, I caused a copy of Licensees' Motion Fer Expedited Order Compelling Continuation of Depositions Of Gordon R.

Thompson And Steven C. Scholly to be hand delivered to those -

parties marked with an asterisk, and served by first class mail, postage prepaid on all others.

• J ame s P . Gleason, Chairman Charles M. Pratt, Esq.

Administrative Judge Stephen L. Baum, Esq.

Atomic Safety and Licensing Board Power Authority of the

. 513 Gilmoure Drive State of New York Silver Spring, Maryland 20901 10 Columbus Circle New York, New York 10019

• Mr. Frederick J. Shon Administrative Judge Janice Moore, Esq.

Atomic Safety and Licensing Board Counsel for NRC Staf f U.S. Nuclear Regulatory Of fice of the Executive Commission Legal Director Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Dr. Oscar H. Paris Administrative Judge Brent L. Brandenburg, Esq.

Atomic Safety and Licensing Board Assistant General Counsel U.S. Nuclear Regulatory Consolidated Edison Company Commission of New York, Inc.

Washington, D.C. 20555 4 Irving Place New York, New York 10003 Docketing and Service Branch Office of the Secretary *Ellyn R. Weiss, Esq.

U.S. Nuclear Regulatory Commission William S. Jordan, III, Esq.

Washington, D.C. 20555 Harmon and Weiss 1725 I Street, N.W., Suite 506 Joan Holt, Project Director Washington, D.C. 20006 Indian Point Project New York Public Interest Research Charles A. Scheiner, Co-Chairperson Group Westchester People's Action 9 Murray Street Coalition, Inc.

New York, New York 10007 P.O. Box 488 White Plains, New York 10602

• Jef f rey M. Blum, Esq.

New York University Law School Alan Latman, Esq.

423 Vanderbilt Hall 44 Sunset Drive 40 Washington Square South Croton-On-Hudson, New York 10520 New York, New York 10012 Ezra I. Bialik, Esq.

Charles J. Maikish, Esq. Steve Leipzig, Esq.

Litigation Division Environmental Protection Bureau The Port Authority of New York New York State Attorney and New Jersey General's Office One World Trade Center Two World Trade Center New York, New York 10048 New York, New York 10047 i Alfred B. Del Bello Westchester County Executive i Westchester County

, 148 Martine Avenue White Plains, New York 10601 Andrew S. Roffe, Esq.

New York State Assembly Albany, New York 12248

Marc L. Parris, Esq. Atomic Safety and Licensing Eric Thorsen, Esq. Board Panel County Attorney U.S. Nuclear Regulatory Commission

. County of Rockland Washington, D.C. 20555 11 New Hempstead Road New City, New York 10956 Atomic Safety and Licensing Appeal Board Panel Pat Posner, Spokesperson U.S. Nuclear Regulatory Commission Parents Concerned About Indian Washington, D.C. 20555 Point P.O. Box 125 Honorable Richard L. Brodsky Croton-on-Hudson, New York 10520 Member of the County Legislature Westchester County Renee Schwartz, Esq. County Office Building Paul Chessin, Esq. White Plains, New York 10601 Laurens R. Schwartz, Esq.

Margaret Oppel, Esq. Zipporah S. Fleisher Botein, Hays, Sklar and Hertzberg West Branch Conservation 200 Park Avenue Association New York, New York 10166 443 Buena Vista Road New City, New York 10956 Honorable Ruth W. Messinger Member of the Council of the Mayor George V. Begany City of New York Village of Buchanan District #4 236 Tate Avenue City Hall Buchanan, New York 10511 New York, New York 10007 Judith Kessler, Coordinator Greater New York Council Rockland Citizens for Safe Energy on Energy 300 New Hemstead Road c/o Dean R. Corren, Director New City, New York 10956 New York University 26 Stuyvesant Street David H. Pikus, Esq.

New York, New York 10003 Richard F. Czaja, Esq.

330 Madison Avenue Geoffrey Cobb Ryan New York, New York 10017 Conservation Committee Chairman Director, New York City Amanda Potterfield, Esq.

Audubon Society Johnson & George 71 West 23rd Street, Suite 1828 528 Iowa Avenue New York, New York 10010 Iowa City, Iowa 52240 Lorna Salzman *Ruthanne G. Miller, Esq.

Mid-Atlantic Representative Atomic Safety and Friends of the Earth, Inc. Licensing Board Panel 208 West 13th Street U.S. Nuclear Regulatory New York, New York 10011 Commission Washington, D.C. 20555 Stanley B. Klimberg, Esq.

General Counsel New York State Energy Office 2 Rockefeller State Plaza Albany, New York 12223 L _ ._ _ _ _ . _ _ _ _ . _ . . _ _ . . _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ . _ _ _ _ _ _ . _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Mr. Donald Davidoff Director, Radiological Emergency Preparedness Group

. Empire State Plaza Tower Building, Rm. 1750 Albany, New York 12237 Craig Kaplan, Esq.

National Eme'gency Civil Liberties Committee 175 Fifth Avenue, Suite 712 New York, New York 10010 Michael D. Diederich, Jr. , Esq.

Fitgerald, Lynch & Diederich 24 ' Central Drive Stony Point, New York 10980 Steven C. Sholly Union of Concerned Scientists 1346 Connecticut Avenue, N.W.

Suite 1101 Washington, D.C. 20036 Spence W. Perry Office of General Counsel Federal Emergency Management Agency 500 C Street, S.W.

dashington, D.C. 20472 Stewart M. Glass Regional Counsel Room 1349 Federal Emergency Management Agency 26 Federal Plaza New York, New York 10278 Melvin Goldberg Staff Attorney New York Public Interest Research Group 9 Murray Street New York, New York 10007 Jonathan L. Levine, Esq.

P. O. Box 280 New City, New York 10958

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