ML20076B252
| ML20076B252 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 08/15/1983 |
| From: | Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8308190273 | |
| Download: ML20076B252 (8) | |
Text
_
^
\\
l 00CKETED us.uc
'83 AW 18 A11 :26 1
UNITED STATES OF AMER (QA CE OF SECRt TA 00;XbiiNG & SE?wr.i' 2
NUCLEAR REGULATORY COMMISSIOGRANCH 3
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 4
5 In the Matter of
)
)
Docke t Nos. 50-275 6
PACIFIC GAS N9D ELECTRIC 00MPANY
)
50-323
)
7 (Diablo Canyon Nuclear Power
)
(Reopened Hearing -- Design Plant, Units No. 1 and 2)
)
Quality Assurance) 8
)
9 RESPONSE OF LICENSEE PACIFIC GAS AND ELECTRIC 1C COMPANY TO MOTION FOR EXTENSION OF TIME OF GOVERNOR DEUKMEJIAN 11 12 INTRODUCTION 13 On July 27, 1983, Licensee served by express mail a 14 set of detailed interrogatories on Governor Deukmejian.
These 15 interrogatories were derived specifically and directly from 16 proposed contentions submitted to this Board by the Governor on 17 July 19, 1983.
Counsel for the Governor inquired of the under-18 signed by telephone on August 4,1983 if he could have until 19 August 31 (as opposed to August 12) to answer the interroga-20 tories.
The undersigned was willing to stipulate an extension 21 of until August 21 ("in hands") but no further.1/
On August 22 23 1.
At the time of the telephone conversation, the undersigned did not have a calendar available and did not 24 realize the 21st was a Sunday.
The date was arrived at by the realization that a prehearing conference was scheduled for the 25 23rd and counsel would be traveling the 22nd.
In fact, Licensee would be willing to extend the time for answering its second set 26 of Interrogatories to Governor Deukmejian only until the 18th of August.
8308190273 830815 PDR ADOCK 050002{g o
3 503
1 11, 1983, counsel for the Governor filed the instant Motion for 2
an Extension of Time to Answer which, for the reasons stated, 3
infra, Licensee vehemently opposes.
4 The Motion for Extension of Time to Answer 5
Interrogatories by the Governor must be viewed in light of other 6
developments occurring in this case.
This Board has ordered the 7
parties to set aside the month of October for hearings on DQA.
8 (Tr. July 22, 1983, p. 50.)
Presumably the Board contemplates 9
starting the hearing sometime between October 3 and October 18, 10 1983.
That being the case, discovery in this matter will 11 terminate between September 2, 1983 and September 16, 1983. (Tr.
12 July 22, 19 8 3, p. 5 3. )
Counsel for the Governor is presently 13 planning to take cepositions of two Diablo Canyon Project 14 engineers (Dr. William White and Dr. Lincoln Malik) on August 25 15 and 26, respectively.
(Telephone conference, August 11, 1983.)
16 Both the Governor and Joint Intervenors have filed proposed 17 contentions to which both the Licensee and NRC Staff have filed 18 extensive objections as to lack of specificity.
The Governor 19 has ref used, and is continuing to ref use (Motion for Extension, 20 p.
3), to identify any witnesses, expert or otherwise, he 21 intends to use at hearing.
The Governor has sent extensive 22 interrogatories to both the Licensee and IDVP, both of which 23 have been answered in detail.
The Governor has requested 24 production of documents of Licensee and the IDVP which resulted 25 in the production of in excess of 35,000 pages of documents over 26 one month ago. 't___.
___.__J
1 ARGUMENT 2
Counsel for the Governor has stated repeatedly that he 3
is ready, willing and able to do what is necessary to see that 4
these proceedings move to a rapid conclusion.
(See Tr. of Oral 5
Argument, April 14, 1983, pp. 176, 200 and Tr. of Scheduling 6
Conference, July 22, 1983, p. 9.)
Faced now with specific 7
questions regarding the bases for his contentions, the Governor 8
is asking for an extension of nearly three weeks to provide 9
a nswers. 2/
Counsel for the Governor proposes that he be 10 allowed to withhold any and all answers until, at best, nearly 11 the end of discovery, while blithely taking depositions and 12 pursuing his still " hidden agenda."
It is axiomatic that a 13 litigant has the right to know what it is that he is to 14 litigate.
Through a series of objections and motions, counsel 15 for the Governor has now succeeded in being within six to eight 1:6 weeks of hearing without divulging anything more than his 17 client's name, rank and serial number.
While one cannot help 18 but admire to some small degree the consummate skill by which 19 counsel has accomplished his purpose, the Licensee and Staf f are
-20 21 2.
It is obvious that counsel for the Governor knew 22 he was going to file for an extension at least a week before he
~
did so.
He has, in fact, by fiat, given bimself at least - five 23 extra days by waiting to place in this Board's and the parties' hands the Motion for Extension the day the answers were due.
24 Given the fact that the Governor's only two consultants were both apparently going to be unavailable during the first part of 25 August it is strange that the request for an extension and the ensuing motion were not made in late July or the first of 26 August. _
__J
2 1
put in the^ untenable position of preparing for the unknown.
Is 2
it " fair" for the Licensee to produce witnesses for depositions 3
when no specific contentions or answers to interrogatories have 4
been provided?
Does Governor's counsel have the right to 5
continue his " fishing expedition" without being required to at 6
least identify to some degree of specificity what kind of fish 7
he is seeking?
Indeed, in a case cited by counsel for the
.i Governor, Pennsylvania Power and Light Company, (Susquehanna 8
9 Steam Electric Station, Units 1 and 2) LBP-79-31, 10 NRC 597 10 (1979), the board stated:
11 "In Discovery Memo I, we attempted to outline both the NRC rules governing 12 discovery and the underlying purpose which discovery is intended to serve in an NRC 13 licensing proceeding.
We stated, inter alia (at pp. 5-6) that 14 the purpose of discovery is to 15 enable each party prior to hearing to become aware of the positions 16 of each adversary party on the various ' issues in controversy, and 17 the information available to adversary parties to support those 18 positions [ emphasis supplied].
19 We went on to observe that Commission licensing proceedings 'are not to become the 20 setting for " trial by surprise," and the discovery mechanism is the major means used l
21 to avoid that situation. '
Id. at 6.
Finally, we noted that answers to discovery 22 inquiries are important in. terms of a party's ability to prepare its case for 23 trial--and particularly _ so for an applicant which has the burden of proof in a 24
' proceeding of this type.
Ibid.
But.we also pointed out that discovery always entails 25 some burden or expense, and that 'only
'" undue" burden or expense--beyond.that ~
i 26.
normally necessary to identify. the details
-4
1 of a party's case and the sources of information upon which it intends to rely--
2 would normally justify' issuance of a protegpive order.
Id,.
at 7."
(10 NRC 599, 3
600).-
4 5
CONCLUSION 6
Counsel for the Governor has known for at least two to 7
three months that the month of August was going to be critical 8
for the parties in terms of discovery and preparation for the 9
upcoming hearings. He knew on July 28, 1983 that he was faced 10 with specific and detailed interrogatories on his client's 11 contentions.
Somehow both of his consultants (pointedly not 12 witnesses) were unavailable during this critical period to 13 assist in any way.
Rather than inform the parties of this 14 exigency at an earlier date, he waits until the day answers to 15 interrogatories are due to spring upon the Board and parties his 16 motion for extension and grounds therefore.
It is respectfully 17 18 3.
While the Governor cites that case as one where 19 an extension of time was granted, it is most enlightening to read the board's reasons for that decision.
20 "The Staff now estimates that the 21 earliest date for the start of the environmental hearing would be March or 22 April,1980, and the earliest date for the start of the health and safety hearing would 23 be February or March,1981.
These delays suggest that a grant of further time to 24 respond to discovery would have little or no adverse ef fect on the ability of any party 25 to prepare for hearing, or for the hearing to be commenced on a timely basis."
Id,. at 26 603..
1 requested that this Board order the answers to be made no later 2
than August 18, 1983 in fairness to all parties.
3 Respectfully submitted, 4
ROBERT OHLBACH PHILIP A.
CRAN E, JR.
5 RICHARD F.
LOCKE Pacific Gas and Electric Company 6
P. o. Box 7442 San Francisco, California 94120 7
(415) 781-4211 8
ARTHUR C. GEHR Snell & Wilmer 9
3100 Valley Center Phoenix, Arizona 85073 10 (602) 257-7288 11 BRUCE NORTON Nor ton, Burke, Berry & French, P.C.
12 P. O. Box 10569 Phoenix, Arizona 85064 13 (602) 955-2446 14 Attorneys Pacific Gas and Electric Company 15 By M
17 Bruce Norton 18-19 DATED:
August 13, 1983.
20 21 22 23 24 25 26' _ _ _ _ _ _ _ - _ _ _ _ _ _ _
9 Y
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY
)
Docke t No. 50-27 5
)
Do cke t No. 50-323 Diablo Canyou Nuclear Power Plant, )
Units 1 and 2
)
)
CERTIFICATE OF SERVICE 1
The foregoing document (s) of Pacific Gas and Electric Company has (have) been served today on the following by deposit in the United States mail, properly stamped and addressed:
Judge John F. Wolf Mr. Frederick Eissler Chairman Scenic Shoreline Preservation Atomic Safety and Licensing Board Conference, Inc.
US Nuclear Regulatory Commission 4623 More Mesa Drive Washington, D.C.
20555 Santa Barbara CA 93105 Judge Glenn O. Br igh t Mrs. Sandra A.
Silver Atomic Safety and Licensing Board 1760 Alisal Street US Nuclear Regulatory Commission San Luis Obispo CA 93401 Washington, D.C.
20555 Mr. Gordon Silver Judge Jerry R.
Kline 1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo CA 93401 US Nuclear Regulatory Commission Washington, D.C.
20555
- John Phillips, Esq.
Joel Reynolds, Esq.
Mrs. Elizabeth Apfelberg Center for Law in the Public Interest c/o Betsy Umhoffer 10951 W.
Pico Blvd. - Suite 300 1493 Southwood Los Angeles CA 90064 San Luis Obispo, CA 93401 David F.
Fleischaker, Esq.
Janice E.
Kerr, Esq.
P. O.
Box 1178 Public Utilities Commission Oklahoma City OK 73101 State of California 5246 State Building Arthur C. Gehr, Esq.
350 McAllister Street Snell & Wilmer
[
San Francisco, CA 94102 3100 Valley Bank Center l
Phoenix AZ 85073 i
Mrs. Raye Fleming 1920 Mattie Road Philip A.
Crane, Jr.
Shell Beach, CA 93449 Pacific Gas and Electric Company P. O.
Box 7 442 San Francisco, CA 94120
Chairman
- Judge Thomas S. Moore Atomic Safety and Licensing Chairman Board Panel Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Washington, D.C.
20555 US Nuclear Regulatory Commission Washington, D.C.
20555 Chairman Atomic Safety and Licensing
- Judge W. Reed Johnson Appeal Panel Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Washing ton, D.C.
20555 US Nuclear Regulatory Commission Washington, D.C.
20555 Secretary US Nuclear Regulatory Commission
- Judge John H.
Buck Washington, D.C.
20555 Atomic Safety and Licensing Appeal Board Attn Docketing and Servicing US Nuclear Regulatory Commission Section Washing ton, D.C.
20555
- Lawrence J.
Chandler, Esq.
Maurice Axelrad, Esq.
Jack R.
Goldberg, Esq.
Lowenstein, Newman, Reis US Nuclear Regulatory Commission and Exelrad, P.C.
Of fice of Executive Legal Director 1025 Connecticut Ave., N.W.
Washing ton, D.C.
20555 Washington, D.C.
20036 Mr. Richard B. Hubbard MHB Technical Associates 1723 Hamilton Avenue, Suite K San Jose, CA 95125 Mr. Carl Neiberger Telegram Tribune P. O.
Box 112 San Luis Obispo, CA 93402
- Michael J.
Strumwasser Counsel to the Attorney General 3580 Wilshire Blvd., Suite 800 s
Los Angeles, CA 90010
- Express Mail
- Federal Express I
Pacific Gas and Electric Company Date:
August 15, 1983