ML20078K725

Motion for Order of Enforcement of Aslab 831007 Order Directing Governor Deukmejian & Joint Intervenors to Suppl Interrogatory Responses & Documents Requested.Parties Failed to Provide Required Documents.Certificate of Svc Encl

ML20078K725
Person / Time
Site:	Diablo Canyon
Issue date:	10/13/1983
From:	Crane P PACIFIC GAS & ELECTRIC CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, NUDOCS 8310190219
Download: ML20078K725 (8)

Text

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02'8 M60 DOCKETED USHRC 1 UNITED STATES OF AMERI @

NUCLEAR REGULATORY COMMI59f1OM 14 Pl2:15 2

Before The Atomic Safety And Licensing:-Appeal.-Board 3 liGLXEi;NG 4 'sE)vy' 3 RANCH 4

5 6 )

In the Matter of Pacific Gas ) Docket Nos. 50-275 0.L.

7 and Electric Company (Diablo ) 50-323 0.L.

Canyon Nuclear Power Plant, ) (Design Quality 8 Units No. 1 and 2) ) Assurance)

)

9 10 11 LICENSEE PACIFIC GAS AND ELECTRIC COMPANY'S MOTION FOR ORDER OF ENFORCEMENT 12 13 '

14 Licensee, pursuant to 10 CFR S 2.707, moves the 15 Presiding Member of this Board, and members thereof, for an 16 order enforcing its prior Order of October 7, 1983.

17 On October 5, 1983, this Board held a telephone l 18 conference call to rule on various motions filed by both i

19 parties. This Board ruled, inter alia, that Doctor 20 Apostolakis and Mr. Hubbard would be permitted to testify 21 and Licensee would be permitted to take their depositions if 1

22 taken by October 12, 1983.

23 In .the Board order dated October 7, 1983 1 24 confirming the oral rulings of the Board it was provided in

25 part that:

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! 8310190219 831013 l PDR ADOCK 05000275

G PDR 393 1

h 1 [T]he Governor shall make immediately available to the applicant for deposi-2 tions Mr. Richard B. Hubbard and Dr.

George Apostolakis. Similarly, the 3 joint intervenors shall make immediately available to the applicant for deposi-4 tions Dr. Peter Kempthorne and Dr.

Francisco J. Samaniego. Such deposi- ,

5 tions shall be completed by October 15, 1983. In addition, the Governor and the 6 joint intervenors shall supplement, by October 8, 1983, all previously filed 7 interrogatory responses and document requests to account for the designation 8 of the foregoing individuals as wit-nesses. An d failure on the part of the 9 Governor and the joint intervenoTs to comply fu Fy with these orders shalT 10 result in the exclusion of the witness or witnesses from the heating. (Empha-11 sTs added) Order pp. 5-6 12 Because express mail would not be delivered to a 13 closed building, and because the office of Licensee's lead 14 attorney, Mr. Norton, would be closed on Saturday, 15 October 8, 1983, arrangements were made during the confer-16 ence call that the required supplemental answers to 17 interrogatories and documents lf be sent to Mr. Norton's i

l 18 home in Phoenix, Arizona, to allow for receipt no later than 19 October 8.

20 Consistent with that arrangement, counsel for the 21 Joint Intervenors express mailed supplementary answers to 22 interrogatories which were received by Mr. Norton on l 23 /// .

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26 J/ The documents of Mr. Hubbard were picked up from his offices on Friday, October 7.

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1 October 8, 1983. Included _ was a notification that other 2 documents relevant to certain designated witnesses would be f 3 mailed directly from such witnesses to Mr. Norton's home. 2f 4 In contrast to the actions of counsel for the 5 . Joint Intervenors, counsel for the Governor mailed the 6 supplemental answers not to the home address of Mr. Norton

7 but rather to his office, which was closed Saturday, i -8 October 8, Sunday, October 9, and Columbus Day, Monday, 9 October 10 (the day Mr. Hubbard's deposition was taken in i

, 10 San Francisco). As a consequence the interrogatory answers 1

11 were not received until midday Monday during the deposition 12 of Mr. Hubbard. Licensee's attorney was therefore unable to l 13 utilize such releva'nt documents in preparation' for the 14 depositions of the witness.

l 15 As this Board has previously recognized, counsel

'- 16 for the Governor had a continuing obligation to provide 17 information about witnesses under previously filed 18 interrogatories. Likewise, counsel for the Governor had a 19 continuing obligation to timely furnish the relevant 20 documents which were requested to be identified by document i 21 production requests directed to the Governor.

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24 2f Those documents were express mailed to the correct

address but for some reason were not delivered until 4

25 October 11. Licensee believes Joint Intervenors made a good faith effort to comply with the explicit orders of 26 the Board.

3 l  ! - - - . _ . _ _ _ - _ - _

1 While counsel for the Governor was explicitly 2 required to deliver to Mr. Norton both supplemental 3 interrogatory answers and relevant documents requested, in 4 hand by no later than October 8, as to witness Dr.

5 Apostolakis the required documents were never even mailed.

6 In the Governor's Second Supplemental Answers to PGandE's 7 First Set of Interrogatories, dated October 7, 1983 counsel 8 stated:

9 "All studies and reviews performed by Dr. George Apostolakis will be provided 10 to counsel for PGandE at the October 11, 1983 deposition of Dr. Apostolakis."

11 (Answer to Interrogatory 3, page 3) 12 When subsequently confronted with the fact the 13 information was sent to Mr. Norton's office anc} not his 14 home, the Governor's lead trial attorney responded that he 15 thought the directions regarding mailing applied M 16 testimony and'not discovery materials.

17 This position is totally inconsistent with the 18 procedure worked out by all counsel during the telephone 19 conference ca21 whereby it was stipulated by all counsel 20 that PGandE would exchange testimony with the Joint 21 Intervenors and the Governor at the office of either or both 22 their respective counsel on Monday, October 17, 1983. This l 23 arrangement was relayed to the Board, during the conference 1 24 call and was acknowledged by the October 7, 1983 Order which 25 Provided in part: f 26 ///

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, . _ . _ _ _ . . . - . , , _ . ~ _ _ _

0 1 In accord with this schedule modi-fication, all prehearing items set forth 2 in our Septert.ber 7, 1983 order are now generally due one week later than indi-3 cated in that order. By agreement of all counsel, however, pre-filed, direct 4 testimony now shall be exchanged on October 17, 1983. (Emphasis supplied, 5 Order, pp. 2-3).

6 7 CONCLUSION 8 Once again counsel for the Governor has blatantly 9 disregarded their obligations and the direct orders of this u ' nard. Counsel has, at the very least in the case of the 11 Apostolakis documents, deliberately withheld discovery 12 materials. However, the Licensee was able to take Dr.

13 Apostolakis' deposition without severe prejudice as the 14 documents were not particularly extensive. In the case of 15 ///

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1 Mr. Hubbard, however, the supplementary answers to inter-2 rogatories were extensive and the Licensee's ability to 3 conduct a meaningful deposition was impaired.

4 5 Respectfully submitted, 6 ROBERT OHLBACH PHILIP A. CRANE, JR.

7 RICHARD F. LOCKE Pacific Gas and Electric Company 8 P.O. Box 7442 San Francisco, California 94120 9 (415) 781-4211 10 ARTHUR C. GEHR

. Snell & Wilmer 11 3100 Valley Center Phoenix, Arizona 85073 12 (602) 257-7288 13 BRUCE NORTON ,

Norton, Burke, Berry & French, P.C.

14 P.O. Box 10569 Phoenix, Arizona 85064 15 (602) 955-2446 16 Attorneys for Paci s and Ele tri Company 17 B . A ,

h, 19 \/ Philip 7 . Cra e, Jr. '

20 DATED: October 13, 1983.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 0(Lgl'g{EI In the Matter of 83 gg 14 R2:15 PACIFIC GAS AND ELECTRIC COMPANY ) Docket No. 50-275

) Docket No. 50-32TE OF SEEb ~...

Diablo Canyon Nuclear Power Plant, ) DOCKET gggy{EH'%-

Units 1 and 2 )

)

CERTIFICATE OF SERVICE The foregoing document (s) of Pacific Gas and Electric Company has (hnve) 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 Chairman 1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo CA 93401 US Nuclear Regulatory Commission Wtchington DC 20555 Mr. Gordon Silver 1760 Alisal Street San Luis Obispo CA 93401 Judge Glenn O. Bright Atomic Safety and Licensing Board John Phillips, Esq.

US Nuclear Regulatory Commission Washington DC 20555 ** Joel Reynolds, Esq.

Center for Law in the Public Interest Judge Jerry R. Kline 10951 W. Pico Blvd. - Suite 300 Atomic Safety and Licensing Board Los Angeles CA 90064 US Nuclear Regulatory Commission David F. Fleischaker, Esq.

Wcshington DC 20555 P . O. Box 1178 Mrs. Elizabeth Apfelberg Oklahoma City OK 73101 c/o Betsy Umhoffer Arthur C. Gehr, Esq.

1493 Southwood San Luis Obispo CA 93401 Snell & Wilmer 3100 Valley Bank Center Phoenix AZ 85073 Jcnice E. Kerr, Esq.

Public Utilities Commission Bruce Norton, Esq.

State of California Norton, Burke, Berry & French, P.C.

5246 State Building 350 McAllister Street P. O. Box 10569 San Francisco CA 94102 Phoenix AZ 85064 Mrs. Raye Fleming Chairman Atomic Safety and Licensing 1920 Mattie Road Board Panel Shell Beach CA 93449 US Nuclear Regulatory Commission 20555 Mr. Frederick Eissler Washington DC '

Sctnic Shoreline Preservation ,

Conference, Inc.

4623 More Mesa Drive Scnta Barbara CA 93105

o

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• Judge Thomas S. Moore Chairman Atomic Safety and Licensing Chairman Appeal Panel Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board J Wcshington DC 20555 US Nuclear Regulatory Commission Washington DC 20555

• Sscretary US Huclear 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

• • Lcwrence J. Chandler, Esq. ** Judge John H. Buck

i - Hanry J. McGurren. Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Office of Executive Legal Director US Nuclear Regulatory Commission Washington DC 20555 Washington DC 20555 Mr. Richard B. Hubbard

• Michael J. Strunwasser, 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 l'

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 l

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i Date: October 13, 1983 DAN G. LUBBOCK I

• Served by telecopier and Courier.

• • Served by Courier.

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