ML20080M579
| ML20080M579 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/29/1983 |
| From: | Kaufman P, Kaufman P CALIFORNIA, STATE OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20080M582 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8310040209 | |
| Download: ML20080M579 (17) | |
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q%ID DOCKETED USHRC NUCLEAR REGULATORY COMMISSI'ON BEFORE THE ATOMIC SAFETY AND LICENSING APP $hLOWbAEDR2 0 p-e n: --7 '
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In the Matter of )
) Docket Nos. 50-275 0.L.
PACIFIC GAS AND ELECTRIC COMPANY ) 50-323 0.L.
(Diablo Canyon Nuclear Project, )
Units 1 and 2) )
)
MOTION FOR MODIFICATION OF SCHEDULE Governor George Deukmejian hereby moves the Atomic Safety and Licensing Appeal Board for an order modifying the schedule established in the board's September 7,1983, order for the hearing on design quality assurance.
Since the August 23-24, 1983, prehearing conference, the timetable for completion of the Independent Design Verification Program (IDVP) has fallen behind at least two weeks. This delay in the IDVP has rendered it impossible to meet the deadlines established by the board.
The IDVP timetable, given the board by counsel for Pacific Gas and Electric Company is summarized in Table 1, together with the actual dates of release for those ITRs received so far. At the deposition two days ago of Edward Denison of the R. L. Cloud organization, Mr. Denison testified that the IDVP still had eight ITRs to issue, which it hoped to get out the end of this week. If it is successful in doing so, the delay in completion of the IDVP will have been two weeks from the dates given at the prehearing conference.
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8310040209 830929 #)
TABLE 1 ITR SCHEDULE GIVEN AT THE PREHEARING CONFERENCE AND ACTUAL DATES OF RELEASE Date of Release Date of Given at Prehearing Actual Date Receipt by ITR Conference
- of Release ** Governor 51 Rev. 1 9/13 (D-151) 9/21 9/26 54 Rev. 1 9/9 ( D-190) 9/14 9/19 55 Rev. 0 8/31 (D-150) 9/8 9/16 Rev. 1 9/13 (D-151) 56 Rev. 0 9/16 (D-189) 9/20 9/26 Rev. 1 9/20 ( D-151) 57 Rev.1 9/9 (D-190) 9/8 9/16 58 Rev. 1 9/16 (D-190) 59 Rev. 0 9/8, 23 (D-149) 8/19 8/25 Rev. 1 9/13 (D-151) 6 0 Rev. 0 8/31 ( D-150 ) 8/18 8/24 Rev. 1 9/13 (D-151) 61 Rev. 0 8/31 ( D-150) 9/14 9/19 Rev. 1 9/13 ( D-151) 6 3 Rev. 0 8/23 (D-149) 8/23 9/1 Rev. 1 9/9 (D-190) 6 5 Rev. 0 9/9 (D-189) 9/19 9/22 Rev. 1 9/13 (D-151) 67 Rev. 0 8/31 (D-150) 8/15 8/18 Rev. 1 9/2 (D-189) 9/13 9/20 68 Rev . 0 8/16 (D-189) 9/22 9/26 Rev. 1 9/20 (D-151)
- Parenthetical citation is to Transcript pages where schedule was given.
- Date of letter of transmittal.
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Accordingly, the Governor moves the Appeal Board to adjust the schedule by moving all pertinent deadlines back about two weeks. In particular, the Governor requests the following new dates, which would enable the parties to address the reports about to be issued by the IDVP, permit the orderly conclusion of pending discovery matters, and enable the parties properly to prepare for hearing:
Discovery: That discovery be extended, solely to permit the parties to take and complete specified depositions and to complete the updating of interrogatory answers, to October 10, 1983.
Contentions: That the Governor and Joint Intervenors be permitted to file 1/ contentions arising out of the Interim Technical Reports (ITRs) issued after September 20, 1983, on ,
October 12, 1983.
Direct Testimony, Witness Qualifications, Panel Groupings, Exhibit Lists and Exhibits: That the matters presently required to be filed by October 8,1983, be due on October 22, 1983.
Objections to Proposed Testimony and Exhibits: That the objections presently due October 14, 1983, be due instead on October 28, 1983.
- 1. As the Appeal Board did in its September 7 order, the Governor uses the word " file" to mean that the papers are in the hands of the board and the parties.
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Responses to Objections, Estimated Cross-Examination
! Time, and Statements of Procedural and Evidentiary Issues:
That the matters presently required to be filed by October 19 be due November 2.
Hearing: That the first two weeks (seven hearing days) of hearings be cancelled and the hearing commence on Monday, November 7,1983, at the San Luis Bay Inn in Avila Beach.
The schedule.from that day forward to remain as in the board's order, including the contemplation that the hearing conclude by November 23.
The Governor respectfully submits that the proposed modification is necessary to the holding of an adequate hearing before this board and that events that have transpired since the present schedule was set have insured that the proposed modifica-tion will not jeopardize timely operation of the power plant.
I DELAYS IN-THE IDVP HAVE MADE MODIFICATION OF THE SCHEDULE UNAVOIDABLE The schedule contained in the September 7 order was
' based on a schedule for completion ~ of the IDVP's remaining ITRs by September .16. (Tr., pp. 189-190.)2/ That schedule contem-plated the issuance of the last ITR on September 16. Subsequent to the prehearing conference, the schedule has slipped at least two weeks, with the final ITRs now projected to be issued around September 30. (See Table 1. ) The effect of these delays has been to render it impossible to meet the deadlines set in the i-4.
September 7 order withcut eliminating much of the verification work from the scope of the hearing. Here is the effect of the IDVP slippage.
Contentions. The September 7 order requires that the Governor and Joint Intervenors have in the hands of the board and the parties by September 30 "any proposed issues that depend on matters contained in any" ITR issued af ter September 18.
Plainly, it is not possible to put in the mail on September 29 a document specifying issues in a report that will be issued no earlier than September 30 and received by the parties no earlier than October 3..
Testimony. The board has already provided for discovery to continue for ten days after issuance of the last ITR. For those issued on September 30, that would run to October 10 (a legal holiday). But the September 7 order requires the parties to have their direct testimony in the other parties' hands by October 8. Obviously, that testimony cannot benefit from discovery that will not yet be completed. And, perhaps of greater practical importance, there is simply no time for counsel and their consultants both to complete discovery, and to prepare direct testimony.
- 2. Actually, it is unclear the extent to which the schedule was based on the August 24 forecast of crinsel for PG&E or the IDVP schedule he gave the previous day, go which the parties had based their own scheduling proposals. From August 23 to ,
August 24, the IDVP schedule was revised with six ITRs formerly expected in August postponed roughly tw'o weeks to mid-September, but with certain ITRs formerly project for September 20 revised to September 16 on the second day of the conference. (Tr.,
pp. 149-151, 189-190.)
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Since all subsequent deadlines are keyed to the October 8 date for the filing of direct testimony, those dates have likewise been rendered impossible by the delays in the IDVP.
II ADDITIONAL TIME IS REQUIRED TO COMPLETE DISCOVERY The parties have been diligently pursuing a deposition schedule that began immediately af ter the prehearing conference.
In the last 35 days, 24 depositions have been scheduled, of which 17 have been completed. The eighteenth is expected to be done on September 30. However, in the intensive schedule, it proved impossible to complete five of the depositions,3/ and a sixth was cancelled because the witness wLs unavailable for personal
' reasons . The status of the 24 noticed depositions is set forth in Table 2.
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3.. The Governor had indicated his willingness to speed the deposition process by taking simultaneous depositions using different lawyers. PG&E objected to simultaneous depositions.
6.
TABLE 1 STATUS OF NOTICED DEPOSITIONS DATE OF DEPONENT OF DEPOSITION STATUS
- 1. Anderson PG&E 9/26 Unfinished
- 2. Cloud IDVP 9/27 Completed
- 3. Cooper IDVP 9/23 Completed
- 4. Denison IDVP 9/27 Completed
- 5. Haas Staff 9/21 Unfinished
- 6. Holly IDVP 9/29 Completed
- 7. Jagannath Staff 9/20 Unavailable
- 8. Kaplan PG&E 9/26 Completed
- 9. Knox Staff 9/20 Unfinished
- 10. Kuo Staff 9/20 Completed
- 11. Malik PG&E 8/25 Completed
- 12. Moore PG&E 9/26- Unfinished
- 13. Morrill Staff 9/27 Completed
- 14. Philipikopolis BNL 9/14 Completed
- 15. Polk Staff 9/20 Completed
- 16. Raymond PG&E 9/24 Completed
- 17. Reedy IDVP 9/22 Completed
- 18. Reich BNL 9/14 Completed
- 19. Roesset Governor 9/29-30 In Progress
- 20. Schierling Staff 9/21 Completed
- 21. Sestak IDVP 9/22 Completed
- 22. Skidmore PG&E 9/24 Completed
- 23. Wermiel Staff 9/21 Unfinished
- 24. White PG&E 8/25-26 Completed 7.
- _ _ _ = _ _ _ _ .. . . .
Since these 24 depositions were noticed, new witnesses have been identified by three parties in the past week, requiring additional depositions. Following the Eeptember 21 depositions of the staff and the September 24 depositions of PG&E quality assurance managers, on September 26 counsel for the Governor advised the parties that the Governor would be designating Richard B. Hubbard as an additional expert witness.$/ Following the September 26 deposition of PG&E's statistician, counsel for the Governor determined that he would call Prof. George .
Apostolakis as an expert witness, and the parties were so advised at a September 28 deposition. Those two designations were
- confirmed in supplemental answers to interrogatories filed on September 28. Meanwhile, counsel for the Joint Intervenors have retained Prof. Peter Kempthorne and designated him as an expert witness on statistics in a Supplemental Answer to Interrogatories filed September 23. In a September 23 letter to counsel for the Governor, counsel for the IDVP indicated that, while the IDVP had not yet determined who all its witnesses would be, he was tentatively designating three new proposed expert witnesses for trial, Prof. M. J. Holley,' Prof. J. M. Biggs, and R. Wray; the deposition of Prof. Holley had already been noticed by the Governor and is expected to be completed on September 29, but no notices have yet been issued for the other two IDVP witnesses.
- 4. Counsel for PG&E indicated his intention to seek to preclude Hubbard frora testifying and, failing that, to take his deposition, which counsel contended could only be done after the October 8 deadline for the filing of direct testimony.
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Two days earlier the IDVP had designated W. Cooper, R. L. Cloud, R. F. Reedy, and J. Krechting as its experts; Krechting had not been noticed for deposition on the apparently erroneous assumption that his superior, F. Sestak, would be the pertinent witness on Phase II.
In addition to the witnesses recently identified in interrogatory answers, important witnesses have been identified for the first time in depositions. In particular, it was learned that James Knight, who is not identifie~d in Supplement 18 to the Safety Evaluation Report, will be relied upon by the staff to defend that report. The depositions of two Brookhaven National Laboratories engineers, A. Philipacopoulos and M. Reich, revealed the existence of previously undisclosed correspondence between BNL and the IDVP seeking answers to many of the same questions that have been posed by the Governor. It appears necessary to depose at least three BNL employees -- C. Constantino, C. Miller, and P. Bezler -- must be deposed to determine how the BNL concerns are being resolved. And the depositions of the IDVP and DCP structural-engineering experts, as well as the release of ITR 68, Rev. O, have identified the need to take the deposition of the as yet unidentified person responsible for the Diablo Canyon Project's soil structure interaction analysis for the containment.
With the most recent set of expert witness designations, 38 expert witnesses have been identified by the parties, of whom 18 have not been noticed for deposition and another 5 have had
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Tablo 3 IESIQWIED EXPERT WI'INESSES IEPCSITICN S'IWItB NME PARPY Dcne Started Ncne SLEJECP Amaral PG&E X @
Anderscn PG&E X General, Statistics, Sampling l Apostolakis Governor X Statistics Biggs IINP X Structural Engineering as it Applies to Nuclear Power Plants Cloud IINP X Engineering Mechanics Cooper IINP X Engineering Medianics Costantino NRC X Contentiors 3(f), (i)
DeUriate PG&E X @
Dick PG&E X @
Dmning NRC X CcnLenticns 4(d)-(f), 4(u)
Etzler PG&E X General Friend PG&E X General Haass NRC X Contention 8 Hartzman NRC X Ccntenticms 4(1), (m)
Holley llNP X Structural Engineering as it Applies to Nuclear Power Plants Hubbard Governor X General, @
Jacobson PG&E X @
Kaplan PG&E X Statistics Kempthorne Jt Int X Statistics Knight NRC X Contentions 1(a)-(e),
2(a)-(d), 6, 7 Knox NRC X Contentions 4 (b), 4 (c), 4 (g),
4 (o) , 4 (t) , 4 (u)
Krechting IINP X Nuclear Power Systems design and operaticn Kubicki NRC X Contentions 4(i)-(k)
Kuo NRC X Ccntenticns 1(a)-(e),
2(a)-(d), 3(a)-(n), 4 (n)
LaGrange NRC X Contentions 4(f), 4(g), 4(o)
Malik PG&E X Seismic Miller NRC X Contentions 3(c), (e), (f),
(h)-(l) , (n)
Moore PG&E X General, Statistics, Sampling Mcrrill NRC X Ccntenticns 5, 8 Philippacopoulos NRC X Contentions 3(e), (g), (j)
Polk . NRC X Cmtenticns 3(a)-(n), 4(n)
Reedy IINP X Design @
Schierling NRC X Cm?entims 1(a)-(e),
2 (a)-(d) , 6, 7 Shipley PG&E X ?
Skidnore PG&E X General, @
Wang NRC X Contention 3(g)
Wermeil NRC X Ccntenticns 1(a)-(e),
2(a)-(d), 4 (a), 4 (p)-(s), 6, 7 White, William PG&E X General, Statistics, Sampling Wray IINP X Structural Engineering as it Applies to Nuclear Power Plants
'IUPAL 13 5 20 10.
their depositions started but not completed. (See Table 3. )
While the Governor does not believe it is necessary for each and every designated witness to be deposed, he does believe it essential to the development of a full record that at least 13 witnesses from among the group recently identified and the group already noticed but not yet fully deposed must be taken for the parties adequately to develop a complete record at the hearing <
and be prepared to use the time given for cross-examination effectively. Together with the three additional witnesses PG&E will likely seek to depose, there are 16 depositions therefore I remaining to be taken or completed before the parties can properly turn to preparation of direct testimony. These witnesses are identified in Table 4.
Accordingly, the Governor moves the Appeal Board to authorize the depositions of the witnesses listed in Table 3 through October 11 (October 10 being a legal holiday).
Interrogatories. Since the commencement of discovery in April, there has been a brisk interrogatory practice. By the Governor's count, approximately 850 pages of interrogatory answers and exhibits thereto have been filed by the parties (roughly a quarter of.those pages by the Governor). While this exchange has been productive, there is a continuing need to update answersE/ as the parties continue to develop their cases
- 5. The parties have agreed to continue updating to the date direct testimony will be filed. The Governor p oposes the filing of direct testimony remain the date on which the updating obligations ends.
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TABLE 4 REMAINING DEPOSITIONS Event Identifying Party Wishing to Need to Take Deponent Of Take Deposition Deposition ,
Anderson PG&E Governor Unable to Complete 9/26 Apostolakis Governor PG&E Declaration as Witness, 9/28 Bezler BNL' Governor Depositions of Philipikopolls, Reich Biggs IDVP Governor Declaration as Witness, 9/21 Constantino BNL Governor Depositions of Philipikopolis, Reich Haas Staff Governor Unable to Complete 9/21 Hubbard Governor PG&E Declaration as Witness, 9/26 Jagannath Staff Governor Unavailable on 9/20 due to perscnal emergency Kempthorne Joint PG&E Declaration as Intervenors Witness, 9/23 Knight Staff Governor Depositions of Schierling, et al.
Krechting IDVP Governor Declaration as Witness, 9/21 Miller BNL Governor Depositions of -
Philipikopolis, Reich Moore PG&E Governor Unable to Complete 9/26 Soil-Structure DCP Governor ITR 68, Rev. O Interaction Witness Wermiel Staff Governor Unable to Complete 9/21 Wray -
IDVP Governor Declaration as Witness, 9/21 12.
and, particularly, as the last body of IDVP analyses is released and digested.
Document Production. The Governor has thus far received roughly 50,000 pages of documents from PG&E and the IDVP. A relatively small additional number have been obtained during the deposition process. Early next week another body of documents, expected to be subst'antially smaller than the quantity already received, is due to be produced to the Governor by PG&E, the IDVP, and the staff.
The initial body of documents has been screened and substantially reviewed, although some additional work remains before the detailed listing of exhibits presently required by the board for October 8 can be prepared. While the apparatus for analyzing the documents to be received next week will permit their rapid review, it is virtually impossible to guarantee that they can be fully analyzad by October 8. The additional time necessary to accommodate the IDVP slippage would also permit a more thorough review of this evidence.
It should be clear that the parties are diligently pursuing discovery. It is doubtless clear to the parties that the effort has been productive, enabling them to compile a more complete and accurate picture of the verification program that is expected to resolve a number of the contentions without trial and to permit the remaining issues to be resolved on a reasoned, informed basis.
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4 III THE PROPOSED MODIFIED SCHEDULE WILL NOT JEOPARDIZE THE FULL POWER OPERATION SCHEDULE Guvernor Deukmejian is reluctant to urge any delay in completion of these proceedings. In the present case, however, the compelling need for the proposed changes in the schedule are matched by compelling evidence that any slippage in the schedule for the proceeding has been more than matched by the changes since the prehearing conference in the schedule for low-power operation.
In August this board was told that PG&E was hoping for license restoration and fuel loading on October 7 (Tr., p. 160) and hoped to be able to cross the 5 percent power rating 61 days thereafter, in early January (Tr., p. D-199). Since August, the commission has declined to consider restoration of the suspended license until the IDVP is projected a date for issuing an SER limited to fuel loading matters of October 14, and the commission is scheduling a public meeting to take comments on the possibility of restoring PG&E's authority to load fuel on October 28. A decision would come sometime thereafter, presumably in early November. There is not even a proposed date for the commission to consider authorization for criticality and no date for a SER addressed to low-power issues. Thus, the two-week postponement from the August schedule proposed here is smaller than the delay of at least a month in the earliest possible fuel loading.
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L In fact, it is quite likely that there would be little or no delay of the close of hearing from that already contemplated . Because the first two weeks were scheduled to be short weeks, only 7 days of hearings would be lost in exchange for 14 days of additional pretrial preparation. That would leave 12 hearing days before Thanksgiving. Thus far, 8 witnesses have been designated by the parties, giving rise to the likelihood that the hearing can still be concluded by November 23.
The proposed modification has other, incidental benefits of practical value to the parties. Although no hearings were scheduled for October 28, when the commission will be hearing comments on restoration of the loading license, nevertheless that proceeding in Washington, coming at the end of a week of three days of hearing in San Luis Obispo, presents practical problems for those parties intending to be present. A two-week postponc-ment of the start of the hearing also avoids the need for the proceedings to commence in Arroyo Grande and be moved to Avila Beach; the schedule proposed here will permit the full hearing to be held at or.e location.
CONCLUSION The board will doubtless hear opposition to the motion from parties citing the need for regulatory swif tness and decrying further delay.
The delay comes not from the Governor but from the inevitable consequences of the still unfinished verification program. While the applicant's urgent desire for an immediate 15.
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, . conclusion of this proceeding is understandable, it should not force this board into a schedule that precludes serious assessment of the important issues this case presents, nor should it disable the parties from assisting the board in performing
. that duty.
The present schedule is the product of express representation by PG&E about the time required to complete the IDVP. That those predictions proved unrealistic -- like so many schedules that preceded them -- should not redound to the disadvantage of the parties seeking a full hearing.5/
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- 6. Indeed, the present schedule is in large measure the product of PG&E's earlier prediction of a June 30 publication date for the IDVP Final ~ Report. We now know that that date was impoced on the IDVP without its agreement by the Diablo Canyon j Project. (See IDVP ' Final Report, vol. III, S 7.1.) Indeed, it is a measure of how well PG&E's full court press has been working that these discussions of scheduling no longer even turn on the timing of the IDVP Final Report, much less on the SER that, for purposes of low-power testing and full ' power operation, appears
- to have been postponed well beyond even the dates proposed in this motion for the hearing.
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Governor Deukmejian therefore asks the board to modify the hearing schedule as set out above to permit a full and complete hearing on the serious safety issues this board has to resolve.
Respectfully submitted, JOHN K. VAN DE KAMP, Attorney General of the State of Califvcnis ANDREA SHERIDAN ORDIN, Chief Assistant Attorney General MICHAEL J. STRUMWASSER, Special Counsel to the Attorney General PETER H. KAUFMAN, SUSAN L. DURBIN, Deputy Attorneys General q
By //
/~ ' /PE R H. KAUFMAN
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Attorneys r Governor George Deukmejian 17.
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