ML20070M154
| ML20070M154 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 01/10/1983 |
| From: | Brandenburg B, Colarulli P 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 8301120325 | |
| Download: ML20070M154 (11) | |
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%Fp 03 JN/ l J gg,05 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD'. ;dl '
o Before Administrative Judges:
James P.
Gleason, Chairman Frederick J.
Shon Dr. Oscar H. Paris
)
In the Matter of
)
)
CONSOLIDATED EDISON COMPANY OF
)
NEW YORK, INC.
)
Docket Nos.
(Indian Point, Unit No. 2)
)
50-247 SP
)
50-286 SP POWER AUTHORITY OF THE STATE
)
OF NEW YORK
)
January 10, 1982 (Indian Point, Unit No. 3)
)
)
SUPPLEMENTAL MEMORANDUM IN SUPPORT OF LICENSEES' MOTION TO DISMISS CONTENTIONS 2.l(A) AND 2.l(D)
The improper conduct of counsel for UCS/NYPIRG in rela-tion to the deposition of Dr. Gordon Thompson and Mr.
Stephen Sholly, which forms the basis of the Licensees' Notion to Dismiss Contentions 2.l(a) and 2.l(d) (Jan. 6, 1982), has continued with respect to the deposition of other witnesses.
UCS/NYPIRG's counsel has again made it impos-j sible for the licensees to properly depose intervenors' expert witnesses, this time Mr. Robert Weatherwax, one of UCS/NYPIRG's experts on Question 1.
The licensees plan to file separate motions to preclude Mr. Weatherwax' testimony j
or to compel the continuance of the deposition of Mr.
l l
8301120325 830110 PDR ADOCK 05000247
.,s-Weatherwax as well as answers.to specific questions, and-requested documents.
Nonetheless, the licensees believe
'that the information contained in this supplemental memorandum is highly relevant to the Licensees' Motion to Dismiss Contentions ~2.1(a) and 2.l(d), in; establishing a pattern of improper conduct on the part of counsel for UCS/NYPIRG.
On Friday, January 7, 1983, licensee Power Authority was unable te complete and licensee Con Edison was unable even to commence the scheduled deposition of Mr. Robert Weatherwax.
Mr. Blum and counsel for the licensees had agreed to make available each party's California experts during one trip to California.
However, the deposition of Mr. Heatherwax was terminated by Mr. Blum's refusal to insist on Mr. Weatherwax' continued availability for questioning, even though Mr. Blum was able to depose the licensees' expert witnesses at length, and until completion.
On Thursday, January 6, 1983, Mr. Blum deposed three of the licensees' experts on Question 1.
During lengthy tele-phone conversations to arrange the depositions, in the 10 days preceding the California trip, the licensees offered their witnesses for deposition without a time limit.
In fact, the licensees expected a two day deposition of their witnesses.
Mr. Blum requested that the deposition of the licensees' witnesses commence at 10:00 a.m.
Mr. Blum, because of weather conditions, was approximately one hour
.3-o late in beginning the deposition.
The licensees, therefore, agreed to Mr. Blum's request.thad.the deposition continue until completion, even into the evening.
At the same time, Mr. Blum once again confirmed Mr. Weatherwax' availability-for his deposition on the following day.
On Friday, January 7, the deposition of Mr. Weatherwax did not commence until approximately 10:45 a.m. because of a delay in arrival by Mr. Weatherwax due to weather condi-tions.
Immediately preceding the deposition, Mr. Blum for the first time informed the licensees that Mr. Weatherwax had two meetings to attend in the afternoon.
The first meeting was scheduled for 1:30 p.m.,
the second for 3:00 p.m.
When pressed as to when-Mr. Blum learned of these meetings, he stated that he had learned of them on the even-ing of January 6.
Notwithstanding this, Mr. Blum neither telephoned the licensees on the evening of January 6, nor telephoned the licensees the morning of Janaury 7, to inform them of these meetings.
Rather, Mr. Blum waited until minutes before the deposition to reveal to the licensees Mr.
Weatherwax' " conflict."
Moreover, when Mr. Weatherwax was asked when he knew of these meetings, he stated that the 3:00 p.m. meeting had been tentative for quite a while, and that it had been reconfirmed on the 6th.
In addition, Mr. Weatherwax, in complete disregard of his scheduled deposition, arranged a i
second meeting for the afternoon of the 7th.
Notwithstand-i l
ing these facts, neither Mr. Blum nor Mr. Weatherwax informed the licensees of these meetings until the deposi-tion was ready to begin.
Having made their expert witnesses available to Mr.
Blum for as long as he requested, the licensees insisted that Mr. Weatherwax-be made available for the remainder of Friday without interruption.
This position elicited offers and then a withdrawal of offers by Mr. Blum concerning some other possible arrangements that could be made.
One offer that Mr. Blum made at the beginning of the day and then withdrew later in a colloquy with counsel for the licensees was that the deposition of Mr. Weatherwax proceed from approximately 11:00 a.m.
until 1:40 p.m.,
and then the licensees could return to California later in the month to continue the deposition.
Another offer was for the deposition to be recessed after only approximately two and a half hours of questioning of Mr. Weatherwax.
Mr. Blum then proposed a " break" in the deposition that initially would have lasted approximately four hours and then later was revised downward by Mr. Blum to a maximum of approximately three hours.
Such a " break" would clearly have been a major disruption to the questioning of Mr. Weatherwax, and, in fact, would haye constituted a termination of the deposition.
Additionally, the licensees had travel plans in connection with prepara-tions for the January 10 hearing that would have precluded
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The licensees declined-thing offer"-concernihgfthe 5 a
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deposition and insisted upon their righ..tYt'o" properly 'condiact e
a deposition for the day upon which the deposition &as' a
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gf3 noticed and to which UCS/NYPIRG had agree'd.
The'licenseec.
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continued to question Mr. lientherw'ax who, atkapproximately a
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refused to answer'anyifurther questions and,'
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accompanied by Mr. Blum, left the deposition, thereby' I
terminating it without the licensees' concent.
- f Mr. Blum's and his witness' actions regarding.this
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deposition evidence further disrespect for and floutibg of s
the Commission's regulations concerning depositions,'and' specifically fly in the f ace cif Chairman Gleason's' statement to Mr. Blum during a telephone conference on Decemb'er ~2'8,.
1982, that the time required to' depose a witness is-under l
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the control of the party taking the deposition, and that the party cannot be deprived of that opportunity except under extraordinary circumstances.
Clearly, there were no extr'a-ordinary circumstances here.
Rather, Mr. Weatherwax and Mr.
Blum decided without the concurrence of the licensees that it was more important for Mr. Heatherwex to subsequently schedule and attend a conflicting meeting With one of Mr.
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i Weatherwax' other clients than to be in attendance at s properly convened deposition.in Ehis proceeding /
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Mri B1Em's behavior is part of a pattern of conduct in
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't i ynich Mr.'
Blum insists that the licensees and staff follow V
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~5 the rules and regulations of the Commission and make their Qf witne,sses fully available to him for deposition, but denies 7
the licensees proper access to depositions of proposed
'UCS/NYPIPG witnesses.
This pattern of conduct is clear with regard to UCS/NYPIRG's witnesses Gordon Thompson, Stephen g
Sholly, and now Robert Weatherwax.1 In. total, licensees U
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_ were allowed only approximately two and one half hours of actual questioning of Mr. Weatherwax.
Licensees, therefore, urge this Board to censure UCS/NYPIRG's conduct and to grant the licensees' January 6
.s motions seeking dismissal of Contentions 2.l(a) and 2.1(d).
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1.
Moreover, while Mr. Blum had informed licensees earlier in the week of January 3, that Mr. Heather"ax had not comple ted his testimony, it became apparent tic 3
questioning of Mr. Weatherwax that he has not even d_ von to
- write his tentimony.
Further, Mr. Weatherwax claimea ~ to have fo'rmed no conclusions whatsoever concerning the doc'uments upon which he stated he would rely and how those documents relate to the Indian Point Probabilistic Safety Study (IPPSS).
In fact, Mr. Weatherwax testified that he has formed no conclusions whatsoever about the IPPSS, itself.
Rather, at Mr. Blum's direction, Mr. Weatherwax
/ would only answer questions which went to his " tentative impressions."
Because Mr. Weatherwax was provided with a copy of the--IPPSS on May 26, 1982, and further because the testimony oh Question 1 was originally scheduled for filing in August of 1982, the licensees have good cause to infer that the preparation of testimony by Mr. Blum's primary
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expert on the IPPSS has been delayed intentionally in a further attempt to deny the licensees their rights under the discovery schedule imposed by this Board.
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m Res ectfully submitted C//" d Charles Morgan, Jr.
t e'
-Brent L.
Bra'ndenburg Paul F.
Colarulli Joseph J.
Levin, Jr.
CONSOLIDATED EDISON COMPANY MORGAN ASSOCIATES, CHARTERED OF NEW YORK, INC.
1899 L Street, N.W.
Licensees of Indian Point Washington, D.C.
20036 Unit 2 (202) 466-7000 4 Irving Place New York, New York 10003 Stephen L.
Ba um (212) 460-4600 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:
January 10, 1983 l
UNITED STATES OF AMERICA' NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Defore Administrative Judges:
James-P. Gleason, Chairman Frederick J.
Shon Dr. Oscar H. Paris
)
In the Matter of
)
)
CONSOLIDATED EDISON COMPANY OF
)
Docket Mos.
NEW YORK, INC.
)
50-247 SP (Indian Point, Unit No. 2)
)
50-286 SP
)
POWER AUTilORITY OF Tile STATE OF
)
Jan. 10, 1983 NEW YORK
)
(Indian Point, Unit No. 3)
)
)
CERTIFICATE OF SERVICE I hereby certify that on the 10th day of January, 1983, 2
I caused a copy of Supplemental Memorandum In Support of Licensees' Motion To Dismiss Contentions 2.l(a) And 2.l(d) to be hand delivered to those parties marked with an asterisk, and served by first class mail, postage prepaid on all others.
l
- James 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 Stone 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 Staff U.S.
Nuclear Regulatory Office of the Executive Commission Legal Director Washington, D.C.
20555 U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
- Mr.
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.
Box 488 White Plains, New York 10602
- Je f 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 Alfred B.
Del Bello Westchester County Executive Westchester County 148 Martine Avenue White Plains, New York 10601 Andrew S.
Roffe, Esq.
i New York State Assembly l
Albany, New York 12248 l
l
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 Phyllis Rodriguez, 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.
Shea & Gould Joan Miles 330 Madison Avenue Indian Point Coordinator New York, New York 10017 New York City Audubon Society 71 West 23rd Street, Suite 1828 Amanda Potterfield, Esq.
New York, New York 10010 Johnson & George 528 Iowa Avenue Richard M. Hartzman, Esq.
Iowa City, Iowa 52240 Lorna Salzman Mid-Atlantic Representative
- Ruthanne G.
Miller, Esq.
Friends of the Earth, Inc.
Atomic Safety and 208 West 13th Street Licensing Board Panel New York, New York 10011 U.S.
Nuclear Regulatory Commission Stanley B.
Klimberg, Esq.
Washington, D.C.
20555 General Counsel New York State Energy Office 2 Rockefeller State Plaza Albany, New York 12223 l
l l
l' Mr. Donald Davidoff Director, Radiological Emergency
. Preparedness Group Empire State Plaza Tower Building, Rm. 1750 Albany, New York 12237 Craig Kaplan, Esq.
National Emergency Civil Liberties Committee 175 Fif th 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.
Washington, 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 fork 10958 y
Paul F.
Colarulli
.