ML20078F704
| ML20078F704 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 10/04/1983 |
| From: | Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8310110120 | |
| Download: ML20078F704 (12) | |
Text
-..
jh bIl
.?
000KETED t'SN?.C 1
UNITED STATES OF AMERICA
'83 001 -6 P2:14 2
NUCLEAR REGULATORY COMMISSION
- rFr.E"5 SECHT!"
3
,y,-.:q g r
.. % n.,
1 4
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 5
6 In the Matter of
)
i
)
Docket No. 50-275 7
PACIFIC GAS AND ELECTRIC COMPANY
)
Docket No. 50-323
)
8
'Diablo Canyon Nuclear Power Plant
)
(Reopened Hearing --
l Units Nos. 1 and 2
)
Design Quality 9
)
Assurance) 10 I
11 12 RESPONSE OF LICENSEE PACIFIC GAS AND ELECTRIC COMPANY 13 TO GOVERNOR'S DEUKMEJIAN'S 14 MOTION TO MODIFY SCHEDULE 4
I 15 16 l
17 Licensee Pacific Gas and Electric Company 18
("PGandE") hereby opposes the Governor's Motion to Modify 19 the schedule for the conduct of hearings in this matter as 20 set by this Board on September 7, 1983.
The Motion is but 21 yet another calculated step in a continuous course of i
i 22 conduct by the Governor and Joint Intervenors to delay these 23 proceedings.
As we will show, each of the reasons adduced i
24 by the Governor in support of the proposed delay in these 25 proceedings either misstates or ignores the facts as they 26 pertain to their alleged disability to meet the schedule set 8310110120 831004 PDR ADOCK 05000275 G
PDR 3scDS
1 by this Board.
Moreover, the facts as we see them clearly 2
demonstrate that the Governor and the Joint Intervenors 3
have, at best, slept on their rights and should not be 4
rewarded for their lack of diligence.
To do so would make a 5
mockery of the Commission's Rules of Practice and this 6
Board's prior Orders for the conduct of this proceeding.
7 I.
THE ITR QUESTION 8
The Governor argues that delays in the issuance of 9
certain ITR's have rendered it impossible to meet the 10 Board's schedule.
Upon closer examination this argument is 11
-unavailing.
As the Board and the parties are all aware, the 12 key ITR's to be issued after September 1 were the Revision O 13 editions.
The September Revision O ITR's were to, and did, 14 identify any and all technical issues and the following 15 ITR's (Revision l's) essentially concerned only the closure l
16 of issues and did not raise any new issues. 1/
No new 17 material is added.
The last Revision O ITR was issued on 18 September 20.
Accordingly, the Governor has had sufficient 19 time to formulate and file new contentions by September 30, 20
///
21
///
22 1/
In a public meeting attended by representatives of the 23 Governor, Dr. Cooper stated that future ITR Revision O's would only be issued "when we reach the point where 24 only minor issues remain unresolved, and we are confi-dent that those minor issues will be satisfactorily 25 resolved, and any such issues are identified in Revi-sion O."
Transcript Public Meeting, September 1,
- 1983, 26 at 93 94.
Emphasis added.
1 which in fact they did on September 29. 2_/
The Board's 2
Order of August 26, 1983, contemplated the filing of ITRs as 3
late as September 30.
Thus, the IDVP's filing of Revision O 4
ITRs was on schedule in accord with the Board's September 7 5
Order.
6 II.
DISCOVERY GENERAL 7
The Governor's counsel's approach to discovery in 8
this case has inextricably been one of expanding the. issues 9
rather than narrowing them. 3/
Rather than focusing on and 10 narrowing the contentions that were previously advanced, 11 they have done just the opposite.
Now, once again at the 12 eleventh hour, they seek to montinue discovery in complete 13 disregard of this Board's Order.
14 On May 23, 1983 PGandE identified in response to 15 the Governor's first set of interrogatories those persons 16 most knowledgeable about issues designated by the Governor.
17 However, the Governor did not notice depositions of these 18 individualc until August 15, 1983.
Neither did the Governor 19' ask for a designation of PGandE's or the IDVP's witnesses 20
///
21 22 2/
This is not to say that we agree with 'the specifics of the new contentions.
See PGandE's Motion concerning 23 those new contentions filed contemporaneously herewith.
24 3/
It seems strange indeed that not a single specific concern of the Governor's has been dropped as a result 25 of the issuance of ITR's, SSER #18, or discovery.
To the contrary, Governor's counsel has seen fit only to 26 add contentions.
- _ ~
a 1
until September 2, 1983.
The request for such identifica-i 2
tion came in the form of interrogatories which were answered 3
in a timely fashion on September 19 and 21, respectively. 4/
4 Clearly, the Governor has been remiss in not expediting 5
discovery.
This lack of expedition stands in stark contrast 6
to counsel's repeatedly stated commitment ' to move these i-7 proceedings along with the least possible delay.
In fact, 8
during the April 1983 oral arguments Governor's counsel 9
indicated that hearing during August was both desirable and
)
10 attainable.
11 A.
Depositions l
12 The Governor now seeks to take additional i
13 depositions purportedly based upon newly discovered j.
14 information.
However, once again the Governor's. failure to 15 seasonably seek the identity of IDVP, PGandE and/or NRC 16 witnesses should not form the basis for the relief 17 requested.
For the attorneys for the Governor and Joint
- t-18 Intervenors to simply not ask for the indentity of witnesses F
19 until extremely late in the discovery process and to then 20 argue " surprise" is, at best, specious.
Moreover, most, if 21
///
22
///
i t
23 L
4f In contrast, PGandE repeatedly requested of both Joint k
24 Intervenors and the Governor the identity of their i.
witnesses starting in May, 1983.
The only witness even l
25 arguably identified in a seasonable manner was Dr.
I Roessete, who was identified on August 31, 1983.
See i
26 PGandE's Motion for Sanctions, September 29, 1983.
l t,
1 not all, of these witnesses have been long known to 2
Governor's counsel.
The IDVP,.in answers to the Governor's interroga-3 4
tories, stated that Mr. Krechting was the person most 5
knowledgeable about many of the Phase II related items on 6
May 23, 1983.
Governor's counsel now argues they thought 7
Mr. Sestak was that person.
Similarly, they claim they did 8
not know that Professor Biggs was going to be a wi,tness, 9
presumably just Professor Holley, whom they did depose, even 10 though both Professors Biggs and 'Holley signed off on the 11 ITRs dealing with structures.
In addition, Mr. Wray signed 12 off as program manager on all of the RLCA ITRs and was also named in the above-referenced interrogatory answers as the 13 14 Person most knowledgeable for the IDVP on ITRs which are the 15 specific subject matter of certain contentions, e.g.,
the 16 PGandE/ Westinghouse interface.
Governor's counsel has also seen to it that even 17 18 those depositions previously noticed were not completed.
19 The depositions of Dr. Kaplan, Mr. Richard Anderson and Mr.
20 Gary Moore were scheduled for 9:30 a.m.,
11 a.m.,
and 21 2 p.m., respectively, on September 26, 1983.
The deposition 22 of Dr. Kaplan lasted until 6:30 p.m.
with the other two 23 witnesses sitting idly by waiting their turn.
At that time, 24 the undersigned informed Governor's counsel that after a dinner break the remaining witnesses would be made available 25 until 10 p.m. as depositions of Dr. Cloud and Mr. Denison of 26 _
f 1
the IDVP were scheduled the next day commencing at 9 a.m.
2 Mr. Kaufman, after being so informed, stated:
3 Number
- two, the Governor has
- offered, and in fact is indicatina to d
4 counsel, that we are prepared to taEe both witnesses Tn a single paneE even j
5 though Mr.
- Norton, you expect these people to testify in your mind on 6
different subjects.
7 The questions we have to ask them are roughly similar, and we will save a 8
great deal of time by taking them as a panel.
9 The questions, as I indicated, are 10 roughly similar, and what I see is if we take them seriatim, we will have three 11 hours1.273148e-4 days <br />0.00306 hours <br />1.818783e-5 weeks <br />4.1855e-6 months <br /> for one and three hours for another.
Taken together, it will turn 12 out we will have three hours for a
panel.
13 I believe that it would be the most 14 expeditious way of handling 3 e matter M w_e_ intend to HEish tonight.
e 15 If you don't want to.take them 16 seriatim, which you are telling me it is impossible to take one of these indi-17 viduals, which would mean we would have to try to make up for that fact by 18 scheduling depositions concurrently, which happen to be in the city in which w
19 PG&E is located and have counsel.
20 And while I
appreciate the fact that you want to make a heroic effort 21 and appear at every single deposition that is taken on the subject matter, I I
22 don't think that we should be put in the position of losing the opportunity to 1
23 conduct discoveries because of that fact.
24 It is not unusual for a deposition 25 to be taken simultaneously.
And if it were a problem, we certainly can handle 26 that by continuing this deposition this evening until necessary.
, b
1 And if it is still a problem, we can handle thTt Tact M ta}.ing tne wit-2 nesses in a panel.
3 Now if you insist that thev cannot be taken ~in_ ] panel, even though you_
4 know there i s_
no possibility of com-pleting them this evening, then I think 5
you are duty bound to give up heroics and to schedule the depositions concur-6 rently.
7
[ Deposition of Dr. Kaplan, pp. 193-194; emphasis added.]
8 9
Upon resumption of the deposition at 8 p.m.,
10 counsel for PGandE allowed the singular depositions of 11 Messrs. Moore and Anderson to be consolidated for a panel 12 deposition.
At 10 p.m.,
the undersigned terminated the 13 deposition as announced on several occasions that preceding 14 afternoon.
Mr. Kaufman stated:
I would like the record to reflect 15 that I have many additional pages of 16 questions to ask these witnesses, and PG&E's attorney is taking his witnesses 17 at the present time and leaving the room, and that is keeping me from com-18 pleting discovery.
19
[ Anderson and Moore deposition at 59.]
20 B.
Interrogatories The need of the Governor's counsel to update his 21 22 answers to interrogatories is due to the' failure of 23 Governor's counsel to prepare his case in a seasonal manner.
24 The updating of answers is a common practice recognized by 25 the Rules of Practice as necessary to issue a full and 26 complete response and to prevent surprise.
However, under
~
Y d
1 counsel for the Governor's theory one could never have a 2
hearing since his answers to interrogatories might continue 3
to change, and there is apparently the misunderstanding that 4
supplements are not required until Governor's counsel deems 5
appropriate according to his hidden agenda. 5/
6 C.
Document Production 7
The major portion of the documents requested by 3'
the Governor (50,000 pages approximately) were produced for 9
inspection on June 12, 1983.
All documents were then copied 10 by PGandE and sent on June 18, 1983 to attorneys for the 11 Governor as they specifically requested.
Thus they have had 12 some three months to review these documents.
Additional 13 documents as requested by the Governor on September 2, 1983 14 are to be provided on October 4, 1983, again as also 15 requested by Governor's counsel.
These documents relate 16 solely to the revised contentions mandated by the Boar'd and l
17 were produced by PGandE as part of a response to interroga-18 tories as to why PGandE disagreed with the Governor's 19 contentions.
Thus, there is no basis in asserting that the 20 production of documents has in any way impaired the 21 Governor's ability to prepare his case.
22 c
l,g 23 5_/
While identifying Messrs. Hubbard and Apostilakis as witnesses on September 28, 1983, Governor's counsel to 24 this date has not supplemented the numerous interroga-
/
tories regarding facts,
- opinions, documents and the 25 like regarding those witnesses nor has he produced documents requested to be produced as respects those 26 witnesses.
1 4
I 1
D.
Newlv Identified Witnesses 2
Perhaps the most puzzling deve30pment involving 4
3 both the Governor and the Joint Intervencrs is their 4
incredibly late designation of expert witnesses on 5
statistical questions dealing with IDVP sampling.
The issue 6
of sampling has been "on the table" since at least late j
7 1981.
The parties have discussed it many times with the 8
Staff and the Commission.
Moreover, no recently issued ITR 9
even deals remotely with the sampling question.
Thus, the 10 Governor and Joint Intervenors cannot argue surprise or late 11 receipt of information as a basis for not previously 1
12 identifying these witnesses in response to PGandE's l
i 13 interrogatories.
Indeed the dilatory conduct is in complete 14 defiance of the Board's April 21, 1983 Order and demands the 15 exclusion of these witnesses. 6/
16
///
///
l 17
///
18 l
l 19 20 21 22 23 t
24 25 6f These witnesses are Messrs. Apostilakis, Kempthorne and Samaniego.
Mr. Samaniego is yet another witness listed 26 by Joint Intervenors on October 3, 1983.
i
_9_
1 IV.
CONCLUSION 2
For the foregoing reasons, PGandE urges this Board 3
not to grant the Governor's Motion to Modify the Schedule.
4 Respectfully submitted, 5
ROBERT OHLBACH 6
PHILIP A. CRANE, JR.
RICHARD F. LOCKE 7
Pacific Gas and Electric Compaly P.O. Box 7442 l
' San Francisco, California 94120 (415) 781-4211 9
ARTHUR C. GEHR 10 Snell & Wilmer 3100 Valley Center 11 Phoenix, Arizona 85073 (602) 257-7288 12 BRUCE NORTON i
13 Norton, Burke, Berry & French, P.C.
P.O. Box 10569 14 Phoenix, Arizona 85064 (602) 955-2446 15 Attorneys for 16 Pacific Gas and Electric Company 17 e
18 19 Bruce Norton 20 DATED:
October 4, 1983.
21 22
[
23 24 1
25 26
. )
,r,,,
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CX riETEF UTNU In the Matter of
)
)
'83 00T -6 P 2 :14 PACIFIC GAS AND ELECTRIC COMPANY
)
Docket No. 50-275
)
Docket No. 50-323 Diablo Canyon Nuclear Power Plant, )
CFFCE 0 SU.Ytite 00CKEint1G & SE?vlD
)
BRANCH Units 1 and 2
)
CERTIFICATE OF SERVICE 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 Mrs. Sandra A.
- Silver, 1760 Alisal Street Chairman Atomic Safety and Licensing Board San Luis Obispo CA 93401 US Nuclear Regulatory Commission Mr. Gordon Silver Washington DC 20555 1760 Alisal Street San Luis Obispo CA 93401 Judge Glenn O.
Bright Atomic Safety and Licensing Board US Nuclear Regulatory Commission
- John Phillips, Esq.
Washington DC 20555 Joel Reynolds, Esq.
Center for Law in the Public InterG Judge Jerry R.
Kline 10951 W. Pic, Blvd. - Suite 300 Atomic Safety and Licensing Board Los Angeles CA 90064 US Nuclear Regulatory Commission Washington DC 20555 David F. Fleischaker, Esq.
P. O. Box 1178 Oklahoma City OK 73101 Mrs. Elizabeth Apfelberg c/o Betsy Umhoffer Arthur C. Gehr, Esq.
1493 Southwood San Luis Obispo CA 93401 Snell & Wilmer 3100 Valley Bank Center Phoenix AZ 85073 Janice E.
Kerr, Esq.
Public Utilities Commission Bruce Norton, Esq.
State of California Norten, Burke, Berry & French, P.C4 5246 State Building P. O. Box 10569 350 McAllister Street San Francisco CA 94102 Phoenix AZ 85064 Chairman Mrs. Raye Fleming Atomic Safety and Licensing 1920 Mattie Road Board Panel Shell Beach CA 93449 US Nuclear Regulatory Commission Washington DC 20555 Mr. Frederick Eissler
,~
Scenic Shoreline Preservation Conference, Inc.
4623 More Mesa Drive Santa Barbara CA 93105.-
Chairman
- Judge Thomas S.
Moore Atomic Safety and Licensing Chairman Appeal Panel Atomic Safety and Licensing US Nuclear Regulatory Corr:nission Appeal Board Washington DC 20555 US Nuclear Regulatory Cort:nission Washington DC 20555 Secretary US Nuclear Regulatory Commission
- Judge W. Reed Johnson Washington DC 20555 Atomic Safety and Licensing Appeal Board Attn:
Docketing and Service US Nuclear Regulatory Commission Section Washington-DC 20555
- Lawrence J.
Chandler, Esq.
= Judge John H. Buck Henry J. McGurren Atomic Safety and Licensing US Ncclear Regulatory Commission Appeal Board Office of Executive Legal Director US Nuclear Regulatory Corr:nission Washington DC 20555 Washington DC 20555 Mr. Richard B.
Hubbard
- Michael J.
Strumwasser, Esq.
MHB Technical Associates Susan L.
Durbin, Esq.
1723 Hamilton Avenue Suite K Peter H.
Kaufman, Esq.
San Jose CA 95125 3580 Wilshire Blvd.
Suite 800 Los Angeles CA 90010 Mr. Carl Neiberger Telegram Tribune
- Maurice Axelrad, Esq.
P.
O.
Box 112 Lowenstein, Newman, Reis, and San Luis Obispo CA 93402 Axelrad, P.C.
1025 Connecticut Ave NW Washington DC 20036 w
r, h
Date: October 5, 1983
,, a,
[
DAI2b. LUBBOCK
- Sent via courier on October 4, 1983.
- Sent via express mail on October 5, 1983.
.