ML20082H735

Motion for Discovery on & Rebuttal to Testimony of Jeffers, Rossi,Muto,Smith,Campo & Petrilak on Contention 25 Re Role Conflict.Witnesses Not Identified Until 8 Days Prior to Testimony Filed,Thereby Precluding Discovery

ML20082H735
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/28/1983
From:	Mccleskey K HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20082H731	List: ML20082H728 ML20082H735 ML20082H739
References
ISSUANCES-OL-3, NUDOCS 8312010266
Download: ML20082H735 (10)

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00CKETED USNRC LILCO, November 28, 1983 UNITEDSTANS 3 M in NUCLEAR REGULATORY COMMISSION ffyv T nr : * -

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Before the Atomic Safety and' Licensing Board j

i In the Matter of )

)

) LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning (Shoreham Nuclear Power Station, ) Proceeding)

Unit 1) l LILCO's Motion for Discovery on and Rebuttal to the Testimony

' of Jeffers and Rossi, Muto and Smith, Campo, and Petrilak i on Contention 25 -- Role Conflict The Long Island Lighting Company (LILCO) hereby moves that i

the Board grant discovery on and the opportunity to file rebuttal l

! testimony to the testimony of County witnesses Jeffers and Rossi, I

Muto and Smith, Campo, and Petrilak on Contention 25 -- Role l

Conflict. (We will refer the four pieces of testimony filed by these witnesses as "the school superintendents' testimony" for short.) The basis for this motion is the County's failure to identify these witnesses until eight days prior to testimony l

! being filed, thus precluding LILCO from conducting discovery as to these witnesses.

On November 10, 1983, the County informed LILCO by letter that Messrs. Jeffers, Rossi, Muto, Smith, Campo, and Petrilak would be testifying for the County. LILCO requested additional information about these witnesses on November 14, 1983 and noted its objection to the late designation of these witnesses. The 9312010266 831128 PDR ADOCK 05000322 G PDR

County responded to LILCO's request for information (which had since been repeated in a second letter to the County) on November 22, 1983 (that is, after testimony was filed) by supplying documents entitled " Resume" for each of the school superintendent witnesses. Copies of these documents are attached to this motion. The County has not provided any additional information about these witnesses.

Prior to November 10, the County had designated only behav-ioral and polling experts to testify on Contention 25. Conse-quently, LILCO's discovery efforts probed these professionals' views as to human behavior, including the social research, polls, and literature these experts would rely upon. This same oppor-tunity was not available on the school superintendent witnesses, because the County designated these witnesses well after discov-ery ended and only eight days before testimony was to be filed.

LILCO is therefore faced with six new witnesses -- witnesses who differ radically in kind from the expert witnesses designated by the County in a timely fashion -- to cross-examine without benefit of discovery. That exercise is not likely to be an efficient use of hearing time.

l LILCO asks that the Board, pursuant to its general power to regulate the conduct of a hearing, 10 CFR S 2.718, and in accordance with Pacific Gas and Electric Company (Diablo Canyon l

1 Actually eighteen new witnesses, if we include the twelve newly-designated teacher witnesses, who also differ in kind. See LILCO's motion to strike or for discovery and rebuttal testimony l related to the teacher witnesses, filed today.

Nuclear Power Plant, Units 1 and 2), slip op. 5-6 (October 7, 1983) grant LILCO additional discovery and the opportunity to file rebuttal testimony. (A copy of the decision is attached to this motion.)

In Diablo Canyon, the Board had ordered that all discovery should close on September 28. The applicant requested on September 29 that the Board bar several of the intervenors' r expert witnesses from testifying because those witnesses were identified in supplemental interrogatory answers just prior to, or after, the September 28 date, thereby foreclosing the applicant's opportunity to depose the witnesses. In the alternative, the applicant sought leave to depose the newly-named l

witnesses. Testimony was due to be filed on October 17. The Board ruled that exclusion of witnesses was not appropriate under the circumstances, but allowed the depositions requested by the applicant, and ordered the intervenors to amend all i previously-filed responses to document requests and interrogatories to account for the newly-designated witnesses.

Failure to timely comply was to result in exclusion of the witnesses from the hearing.

LILCO submits that the County's designation of the school superintendent witnesses approximately one month after the discovery period ended and only eight days before testimony was filed warrants additional limited discovery as to the six new j witnesses. LILCO therefore respectfully requests that the Board (1) afford LILCO an opportunity to depose these witnesses as soon as possible and no later than Friday, December 23, (2) require l

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_4 the County to amend by December 10 its responses to LILCO's document requests and interrogatories to include pertinent information from these newly-designated witnesses, and (3) allow LILCO to file rebuttal testimony at the close of litigation of the Group I issues, if necessary, to respond to the school superintendent testimony.

Respectfully submitted,

/ lA A Jeaes K. Chrihrt#ad Kathy E. B. McCleskey Hunton & Williams 707 East Main Street P. O. Box 1535 Richmond, Virginia 23212 DATED: November 28, 1983 g-, , , -- , - - - - , , , , , - , , - - , , , - - - , - - , - . - w,,,---,,,--,,,,----+,,r-,--,m,-

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RESUME Leon J. Campo l 26 Falmouth Drive Mt. Sinai, New York 11766 1

EDUCATION:

Adelphi University (B.A. and M.B.A.)

Hofstra University (M.S.)

1 POSITION:

J 1974-Present Assistant Superintendent of Schools and Administrative Assistant, l East Meadow Schools.

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RESUME George J. Jeffers 1 Fawn Meadow Path Wading River, New York 11792 EDUCATION:

St. Johns University (B.A. and E.D.D.)

Fordham University (M.S.)

POSITION:

1979-Present Superintendent of Schools, Middle Country Central School District

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RESUME Nick Muto

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Middle Island Central School District Middle Island-Yaphank Road Middle Island, New York 11953 EDUCATION:

Pennsylvania State University (B.A.)

Auburn University (M.A.)

Syracuse University (Ph.D.)

POSITION:

Superintendent, Middle Island Central School District l

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RESUME Robert W. Petrilak 12 Gardenia Road Mt. Sinai, New York 11766 EDUCATION:

State University of New York at Fredonia United States Air Force Technical School POSITIONS:

Vice President, Mt. Sinai Union Free School Dictrict Director of Customer Service, Applied Digital l Data Systems, Inc.

l President, Mt. Sinai Taxpayers, Inc.

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RESUME 5 ,

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1 Anthony R. Rossi 45 Chestnut Avenue s Patchogue, New York 11772 1

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a EDUCATION:

St. Francis College, Brooklyn, Nev, York (B.B.A.)

s POSITION:

Director of Transportation, Middle Country Central School District

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RESUME e

2 J. Thbmas Smith Middle Island Central School District Middle Island-Yaphank Road Middle Island, New York 11953 EDUCATION:

Participant in New York State Transportation Workshop at:

University of Albany 1982-83 University of Cortland 1979 University at Niagara 1978 University of Plattsburg 1974 University at Oswego 1971 POSITIONS: \

1968-Present Transportation Coordinator of Middle Island Central School District 1972-Present New York State Education Department Certified School Transportation Instructor 1977-Present New York Department of Motor Vehicle Certified School Bus Driver Examiner t 1978-Present Member, Town of Brookhaven Transportation Advisory Board i

ASSOCIATIONS:

l l 1978-79 President, Suffolk School Transportation Official Association New York State Association for Pupil Transportation National School Transportation Association i

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00CMETED UC!!RC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIo83 OCT 11 P3:01 ATOMIC SAFETY AND LICENSING APPEAL BOARD

' ~~: ? LF 2 l

Administrative Judges: *'Oj[,[k .,U '

Thomas S. Moore, Chairman October 7, 1983 l

t Dr. John H. Buck Dr. W. Reed Johnson SERVED 0CT 1R E

)

In the Matter of )

. )

PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 OL

) 50-323 OL (Diablo Canyon Nuclear Power ) (Reopened Proceeding -

Plant, tinits 1 and 2) ) Design Quality

) Assurance) -

ORDER This order confirms our October 5, 1983 oral rulings, made during a telephone conference call with all parties, involving the reopened proceeding on the issue of design quality assurance.

1. In our order of September 7, 1983, we set forth a schedule for hearing commencing at 9:30 a.m. on Monday, October 24, 1983. We now have before us Governor Deukmejian's " Motion for Modification of Schedule" and request:for expedited hearing of the motion, dated September 29, 1983, and the responses of the applicant and the staff dated October 4 and 5, respectively. We did not receive the joint intervenors response until October 6.

In light of all the circumstances, we grant the Governor's motion in part. A hearing on the issues set forth in our August 26 order and supplemented in this order e- - --

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2 shall now commence at 9:30 a.m. on Monday, October 31, 1983, I at the San Luis Bay Inn, Avila Beach, California, i.e.,

seven days later than previously scheduled. The hearing will continue on Tuesday through Friday, November 1 through November 4. There will be no recess on Friday, November 4, as previously scheduled. The hearing will then resume at the same location on Monday, November 7 and continue through Thursday, November 10. A one-day recess will be taken on Friday, November 11,, because the hearing facility is unavailable. We will resume the hearing on Monday, November 14 and continue through Friday, November 18. We will then continue with the hearing on Monday, November 21, Tuesday, f

November 22 and possibly Wednesday, November 23, for at least part of the day. If we are unable to complete the hearing by November 23, we will take a short recess and I

reconvene sometime after Thanksgiving, at an as yet undetermined location. At this time, it appears that no facility is available for that period in the immediate vicinity of the plant so we shall attempt to secure space in San Francisco, Santa Barbara, or Los Angeles. Failing to do so, we shall reconvene the hearing in the Washington, D.C.

area.

, 2. In accord with this schedule modification, all l

l prehearing items set forth in our September 7, 1983 order l

( are now generally due one week later than indicated in that order. By agreement of all counsel, however, pre-filed, 1v -- *-- m w ve-y- ws.-ve.---- -

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1 direct testimony now shall be exchanged on October 17, 1983.

The testimony shall be in a question and answer format, with l

specification of which issues it addresses. In addition, in those instances where expert witnesses will form a panel and the testimony is presented as that of the panel, the testimony shall indicate clearly the witness or witnesses sponsoring each part of tc.: testimony. Parties shall also exchange on October 17 a full statement, in affidavit form, of the qualifications of each expert witness and tha list of panel groups if witnesses are going to be put on the stand as a panel.1 On this same date, the parties shall exchange an exhibit list indicating all documents and other items to be offered as exhibits at the hearing (except for purposes of impeachment and rebuttal) with a brief statement following each exhibit describing its purpose and the f

identity of the sponsoring witness, and all proposed exhibits, including all schedules, summaries, diagrams and 4

charts to be used at the hearing. Each proposed exhibit shall be premarked for identification as either the l

1 We request that the parties make every effort to keep the size of the panels below five. It has been our experience that the hearing process can be most efficiently and effectively conducted when panels consist of no more than four members. We appreciate that the nature and ,

complexity of the subject matter may require in a rare or isolated instance a larger panel, so we do not mandate a particular size. We expect the parties, however, to make every effort to comply with this guideline.

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l applicant's, the staff's, the Governor's or the joint intervenors' exhibit.

Objections to proposed testimony and exhibits shall be 2

filed by October 21, 1983. Any party proposing to object to any expert testimony or exhibit shall file its objection with a full statement of the grounds for the objection. Any party proposing to object to a witness' expertise on any subject or subjects and who wishes voir dire questioning of the witness shall list the witness and each specific subject on which the party wishes to question the witness. The parties are expected to notify each other about such objections in advance of October 21 and to confer with respect to each such objection in a good faith effort to resolve the controversy before that date.

Responses to objections shall be filed by October 26, 1983. On the same date, the parties shall file their final estimates of the length of cross-examination of each witness or panel of witnesses, and a statement of any other anticipated or foreseeable procedural or evidentiary issues that may arise at the hearing.

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For the purposes of this part of the order the words

" file" or " filed" mean that the required papers must be in  !

our hands and the hands of the other parties on the date l specified in the order.

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3. Formal discovery in this reopened proceeding, with the exception of discovery from the staff, has been available to the parties since April 21, 1983. Discovery from the staff has been open to the parties since July 18, 1983. -At the August 23-24 prehearing conference, we ordered that all discovery should close on September 28. We now have before us, applicant's September 29, 1983 motion seeking the imposition of sanctions upon the Governor and joint intervenors for failure to supplement seasonably their interrogatory answers. Specifically, the applicant seeks to l

bar several of the expert witnesses of the Governor and the l

joint intervenors from testifying because such witnesses were idsntified in supplemental interrogatory answers just prior to, or after, the September 28 date, thereby foreclosing the applicant's opportunity to depose the witnesses. Alternatively, the applicant seeks leave to depose the newly named experts. In their responses, the Governor and the joint intervenors oppose the preclusion sanction and proffer explanations for their lateness in identifying the witnesses. The staff also opposes barring l

the witnesses from testifying at the upcoming hearing.

The ap~plicant's motion for sanctions is denied. In the i

circumstances, the preclusion sanction is unwarranted.

l l Rather, the Governor shall make~immediately available to the applicant for depositions Mr. Richard B. Hubbard and Dr.

George Apostolakis. Similarly, the joint intervenors shall

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- 6 make immediately available to the applicant for depositions Dr. Peter Kempthorne and Dr. Francisco J. Samaniego. Such depositions shall be completed by October 12, 1983. In addition, the Governor and the joint intervenors shall supplement, by October 8, 1983, all previously filed interrogatory responses and document requests to account for the designation of the foregoing individuals as witnesses.

Any failure on the part of the Governor and the joint intervenors to comply fully with these orders shall result in the exclusion of the witness or witnesses from the hearing.

4. Buried in its motion to modify the hearing schedule, the Governor also requests leave to depose, by October 11, some thirteen additional applicant, staff and

- IDVP witnesses. The Governor's request is in large measure l

denied. We have already delayed -- in part at the behest of the Governor -- the start of the hearing one week. Further delays are unwarranted. Moreover, the Governor's suggested schedule calling for the completion of thirteen additional depositions by October 11 is totally unrealistic in light of past discovery record of the parties to the proceeding.

Therefore, the Governor may depose one additional witness of the applicant. The applicant shall make the witness available immediately to the Governor and the deposition shall be completed by October 12, 1983. There shall be no

! additional depositions of staff or IDVP witnesses.

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5. The Governor and joint intervenors have filed a document entitled " Contentions on Design Quality Assurance,"

dated September 8, 1983. That filing purports to particularize further the issues they seek to raise in the proceeding in accordance with our August 26, 1983 order.

The applicant objected to a number of these issues in a written response and we heard staff counsel's objections during the October 5 conference call. The following issues contained in the September 8 filing of the Governor and the joint intervenors do not meet the standard set forth in our August 26 order and are not, therefore, in issue in the proceeding: 3 (a) , 3 (b) , 3 (h) , 3 (1) and 3 (m) .3

6. The Governor and the joint intervenors also filed on September 29 their " Additional Contentions on Design Quality Assurance," pursuant to the provisions of our August 26, 1983 order.In a response dated October 4, the applicant also objects to each of these issues. Once again, we heard l

l staff counsel's objections during the October 5 conference.

All the issues set forth in the Governor's and joint intervenors' September 29 filing may be litigated in the proceeding.

3 Although item 3 (f) has not been excluded, it presents issues in controversy in the proceeding only insofar as

> those issues do not challenge the methodology and conclusions previously accepted in ALAB-644, 13 NRC 903, 936  ;

et seq. (1981).

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7. Any new issuer, by the Governor or joint intervenors dependent on any of the most recently filed ITR revisions must be filed 'ay Wednesday, October 12, and must be accompanied by a full and complete explanation of why the issue could not have been previously raised based upon a prior ITR issuance. In addition, any such issue must be framed in conformance with the requirements set forth in our August 26 order. As we stated in that order,

[f]or each of these issues the Governor and the joint intervenors must particularize the critical facts upon which they base their claim. (Footnote omitted).

In other words, the Governor and joint intervenors are to state affirmatively all the critical facts which form the basis of the new issue and not merely object to the manner in which some action was conducted. Further, the new issues l must identify the newly filed ITR which it concerns.

, It is so ORDERED.

l FOR THE APPEAL BOARD O_. 0 -\ W - W N_.

C. JQn Shoemaker Secretary to the i

Appeal Board

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