ML20083J425
| ML20083J425 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 01/03/1984 |
| From: | Mcgarry J BISHOP, COOK, PURCELL & REYNOLDS, DUKE POWER CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8401050247 | |
| Download: ML20083J425 (33) | |
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UNITED STATES OF AMERICA '84 gg _4 g2,31 NUCLEAR REGULATORY COMMISSION .
BEFORE THE ATOMIC SAFETY AND LICENSING APPE4ffiB_OARD[m.; _
.u s 5Ei. nt rn r c.ij;:RANCH In the Matter of )
)
DUKE POWER COMPANY, et --
al. ) Docket Nos. 50-413
) 50-414 (Catawba Nuclear Station, )
Units 1 and 2) )
APPLICANTS' RESPONSE IN OPPOSITION TO " PALMETTO MOTION TO DIRECT CERTIFICATION OF LICENSING BOARD'S DENIAL OF DISCOVERY BY PALMETTO ON ISSUES, RAISED BY ;
IN CAMERA WITNESSES, AS TO WHICH THE BOARD IS
- ACEDWING FURTHER FACTUAL TESTIMONY BY APPLICANT, AND TO REVERSE THAT DENIAL; AND PALMETTO MOTION TO DIRECT THAT THE RECORD REMAIN OPEN UNTIL SUCH DISCOVERY CAN BE HAD" .
Pursuant to 10'CFR 52.730(c), Applicants' hereby respond in opposition to Palmetto Alliance's motions to direct certification of the Licensing Board's rulings on discovery relating to the in camera witnesses' testimony and to require,that the Licensing Board keep the record open pending such additional ' opportunity for discovery.
For the reasons set forth below, Palmetto Alliance's motions should be denied by the Appeal Board.
i BACKGROUND Palmetto Alliance's motions challenge the procedural framework established by the Licensing Board to hear evidence from the Board's in camera witnesses. To appreciate the propriety of the Licensing Board's action,
.it is necessary to provide some relevant background.
8401050247 840103 PDR ADOCK 05000413 g PDR
- b
2-During an August 3, 1983 conference call, Palmetto Alliance alleged that unnamed per. sons had ' brought to its attention serious deficiencies over and above those already in the case, which would' compromise the public health and safety. Applicants sought an immediate identification of the persons and the alleged deficiencies. Palmetto Alliance refused to provide the information. Thereafter, the Licensing Board, in its September 14, 1983 ruling (pp. 6-8) on Applicants' written motion for the production of the names and facts . ,
concerning this matter, required that Palmetto All'iance divulge such information to Applicants. Palmetto Alliance failed to do so.
However, on October 11-12, 1983, during the evidentiary hearing phase of this proceeding, both Palmetto Alliance and the Government Accountability Project (a non party to this case) alleged that there were I
persons with information on the quality assurance contention Who wished to come forward, but were desirous i
of the protectionp of a Licensing Board in camera
- proceeding.1/ On October 12, 1983, the Licensing Board
- 1/ Palmetto Alliance cannot be said to dispute this fact.
In its motion before the Appeal Board, it states:
In response to representations by Palmetto and the Government Accountability Project (GAP) that there were p tential witnesses among Duke Power Company
( Duke) employees Who would testify about unsafe conditions, equipment, and procedures at the Catawba Nuclear Power Plant except_for the fact that they (footnote continued) s g - -- --
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'.s ruled that it would issue a notice to'" Applicants' present and former employees which would be posted at the Catawba site and published in the media. Such notice wa's to inform interested persons of an opportunity to raise concerns confidentially in an in camera proceeding. The notice required that such concerns b5 r$ceived by the
~
4 Licensing Board no later than October jl, 1983.
After publica' tion and posting of the, Licensing Board's notice, three former employees came forward. A fourth former emplo'yee, Mr. Harry Langley, was included in the in camera procedure for convenience. Mr. Langley came forward. independent of the Board's notice, and raised some of his concerns in a public limited appearance session on October 17, 1983.
[ N The Licensin'g Board had ,' considerable discussions with the parties'concerning the: procedures 'for hearing the concerns of these fbur fbbmer employees.2/ With the input of the parties,'the Board established a two step ' procedure for receiving the in camera testimony and the Eesponses by s ,
the parties. Speqifically, - the Board determined to hear
, e each of the}four -individuals on the record and under oath. '
i s, -
, sJ %; -
(footnote continued from previous page) .
T feared r'eialiation .against them by' Duke, the
-Licensing Boa'rd appealed directly to the' Duke workers to consider testifying under.id camera --
procedural safeguards.
-2/ The Licensing Board had advised' Palmetto Alliance in-its Memorandum and Order of Septembeb'(30, 1983 (pp.
4-5) of the availability of the -in camera process. .
. 3- -
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,e_ , , , , - , - - - - -
Such initial testimony was recognized by all to be the pre-filed testimony of these witnesses. During the November 16 in camera discussion with counsel, the Board stated:
. . . it seems to us that once you get through this motion to strike exercise, what you have got left is in effect prefiled testimony for that witness, and then it is in the transcript.
Then we presumably would be going to [the]
second hearing, and we would be hearing from the Board and all parties with regard to these points. [IC Tr. 379]. - -
In addition the Board announced that these witnesses were Board witnesses. [IC Tr. 27, 29, 434]. More importantly, in an earlier November 3 discussion of discovery as it related to these in camera witnesses, the Board stated as follows:
I thought we mentioned something about that yesterday. We might just expand a bit. I don't know that we as a Board have given a lot of thought to it. But our thought has been that if you want to -- we would rather avoid formal discovery just for logistical, cenbersome reasons.
Let us say, for example, that there is a point in one of the witness' testimony that one or the other of the parties really wants to look into more. If the witness is asked 'Do you mind if i
Mr. Guild or Mr. McGarry got in touch with you later on and let them look into it a bit, and may call you back?' And he says, 'That is fine, go ahead.' That might save us some problems, I would think. [IC Tr. 13].
No one objected to this procedure. Thereafter several additional discussions of procedural matters, including the subject of discovery, were held between the Board and parties. [IC Tr. 40, 42, 145, 298-99].
_5-The Board received the initial testimony of the four former employees in camera during. November 8-10, 1983. At the beginning of each in camera session, the Board advised each witness of the two-step process:
Tonight our principal objective is to learn what your concerns are in the record and in some detail and give counsel an opportunity to ask questions so that they can begin investigating your concerns. [IC Tr. 40].
We do think that further down the road maybe three weeks, a month from now roughly, we would have a~second session when you would come back and then having finished their review of what you have said, they would be in a better position to ask you questions, Staff too, Palmetto also, in terms of their perhaps looking further into some of the things that -- that you have expressed concerns about . . . [IC Tr. 42].
A sLmilar statement was made to each other in camera witness. [IC Tr. 143-45, 297-98].
During later discussions of procedural matters, the Board established a schedule for the preparation of each parties response to the in camera witnesses' allegations.
! Specifically, on November 16, 1983, the Board set December l
l 13 as the filing Qate for prefiled testimony and December l
l 14-16, 1983 as the dates for hearing the witnesses. These l
dates were set without objection from Palmetto Alliance or i any other party. [IC Tr. 379-81].3/
~
3/ In discussing the filing dates the following coloquy I took place:
l MR MCGARRY: We would endeavor to get the testimony to the Board and the parties sometimes in advance of (footnote continued)
It should be emphasized Palmetto Alliance did not seek any information from Applicants regarding the in camera witnesses' allegations prior to the filing of prefiled testimony of Applicants' witnesses.d/ On December 12, 1983, Applicants filed prefiled testimony in response to the Board witnesses' allegations.1/ No other (footnote continued from previous page) the data that these witnesses would come on.
JUDGE KELLEY: Yeah.
MR. GUILD: That sounds fine to me. In fact, what that would seem to do is provide us less necessity for trying to cram all of the important prelimin-aries into all of next week, and that means this motion to strike and the decision. -
It seems to me you could defer an answer a day or so and then your decision until the following week and still have Applicants in a position where they could have several weeks' advance notice of the time to prepare their defense. [IC Tr. 380-813 A/ Applicants are unaware of whether Palmetto Alliance sought information directly from the Board witnesses.
The record is clear that the in camera witnesses were all represented by GAP. The record is further clear that a close relation exists between Palmetto Alliance and GAP. Indeed GAP has stated it is assisting Palmetto Alliance in this proceeding. Accordingly, it is not unreasonable to assume that Palmetto had access to these witngsses, each of whom could have provided Palmetto Alliance with additional information.
Indeed, when GAP was unable to attend the December in camera hearings, counsel for Palmetto Alliance stated he was representing these individuals. See i.e., IC Tr. 602-603.
1/ Applicants had moved on November 28, 1983 to strike (with one exception) the entirety of the Board wit-nesses' testimony. The Board ruled on December 8.and 9 as to three of the individuals pre-filed testimony.
Applicants' prefiled testimony in response to these three Board witnesses' allegations was filed on Dec-ember 12 and 13. With respect to the fourth indivi-(footnote continued)
party responded on that date.6/
On December 13, 1983, the day before the established hearing date - for the parties to respond to the Board witnesses allegations, Palmetto Alliance moved the Licensing - Board for discovery and to keep the record open.
IC Tr. 534. During the discussion of the motions between the~ Board and Palmetto Alliance, the following exchange occurred:
JUDGE KELLEY: Let me ask you this. You say you want some discovery. Why didn't you ask for this three weeks ago? We have talked from the beginning about trying to avoid formal discovery, hoping we could get through in a cooperative way, and now a couple, few days before we thought we were going to hear this -
thing, you say you want formal discovery.
Isn' t that a little late?
MR. GUILD: I don't-think so, Judge. We didn't know what the issue was. I don' t think the
. blame is on Palmetto. I don't think the blame is on the Board. I~am not trying to say, well,
!~
(footnote continued from previous page)
! dual, the Board ruled on-December 13. Applicants submitted pre-filed testimony on the fourth Board witness' allegations on December 14.
6/ The NRC Staff indicated that it was conducting an l investigation of the allegations but had not yet completed its work and was thus not in a position to
( be heard. The Board after hearing from the parties on l- the matter determined- that it need not hear from the
! NRC except as to an issue regarding 1 d stions.
Specifically, the Board felt the remaining issues were straightforward and for the most part had been the l
L subject of previous testimony. Accordingly, the Board felt it could~ resolve the matter on the record independent of Staff input. The Board noted that upon the presentation of the Applicants case it would re-evaluate this decision to see if more information was necessary.
_a_
we only found out about it this morning. Let's face the issues. The issues are joined right now.
I don' t know what issues are in or out. I only know what the Board rules. I am not faulting the Board on this. I don' t think the Board should fault Palmetto, either. (emphasis added)
[IC Tr. 538-39].1/
On December 13, 1983, the Licensing Board denied these requests. See Attachment 1.8/
ARGUMENT The instant motion is an,interoluctory appeal of a Licensing Board ruling regarding the procedural framework established to treat the allegations of Board in camera witneses. More specifically, the issue on appeal is-whether Palmetto Alliance is entitled to further discovery of Board witnesses.
This Appeal Board has stressed that
[i]nterlocutory appeals are not favored in Commission any more than in judicial practice.
Whether review should be undertaken on
" certification" or by referral before the end of the case turns on Whether a failure to address the issue would seriously harm the public interest, result in unusual delay or expense, or affect the basic structure of the proceeding in some pervasive or unusual-manner. [ Duke Power Company (Catawba Nuclear Station, Units 1 and 1/ The Board noted that Palmetto Alliance had not come to the Board with any informal discovery requests [IC Tr.
540].
8/ On December 14, 1983, the Licensing Board denied a request to stay its decision in this regard. See Attachment 2. It should be noted that the Licensing Board corrected the transcription of this Order at Tr.
11625-11629. These corrections are attached as Attachment 3.
_ 9-2), ALAB-687, 16 NRC 460, 464 (1982) citing Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-634, 13 NRC 96, 99 ,(1981).]9/
As set forth below, Applicants submit that Palmetto Alliance has failed to satisfy the Catawba interlocutory review standard.
First, the public interest would not be seriously harmed if this Appeal Board refused to review the instant motion. The matter in question can be properly reviewed in the normal appellate process. If the Licensing Board is found to be in error (which we do not think is the case) this Appeal Board can take appropriate action to rectify any harm, i.e., it can reopen discovery and order further hearings, if necessary.
In any event, public interest requires that the administrative process be conducted in an efficient and expeditious manner. Recognition of this fact is set forth in the Commission's Statement of Policy on Conduct of 9/ Palmetto Alliance has cited the interlocutory standard set forth in Public Service Electric & Gas Co. (Salem Station, Unit 1), ALAB-588, 11 NRC 533, 536 (1980).
Such standard, states that interlocutory requests are granted infrequently 'and then only when a licensing board's action either (a) threatens the party adversely af fected with immediate and serious irreparable harm which could not be remedied by a later appeal, or (b) affects the basic structure of the proceeding in a pervasive or unusual manner.'
Applicants will address the motion pursuant to the -
Catawba test. However, the first part of the Salem test is embraced by the first two parts of the Catawba standard; the second part of the Salem test is identical to the third part of the Catawba test.
- $0 -
Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981). The Licensing Board's ruling, upon which interlocutory review is sought, took this public interest into consideration.
Specifically, the allegations of the Board witnesses arose during the course of the hearing. In response thereto, the Licensing Board established an innovative procedure for dealing with the newly arisen matters. All parties were aware in early November that the Board witnesses testimony would be given under oath; that thereafter over one month would be available to conduct informal discovery; and that responsive testimony could be filed by any party up to one day prior to the actual receipt of such testimony. These facts, coupled with the additional fact that the issues raised by the Board witnesses essentially involve matters which have consumed the bulk of the 43 hearing days already spent on this case, i.e.,
quality assurance allegations, serve as support for the Licensing Board's action and as evidence that the interest of the public was taken into account. Accordingly, it cannot be said that the public interest has been harmed, and thus, interlocutory review is unwarranted.
The grounds advance by Palmetto Alliance with regard to the public interest are not persuasive. First, Palmetto Alliance alleges that absent this Board's immediate review-the record will be one-sided. Again, if Palmetto Alliance is correct, such can be rectified during the normal
appellate process. Applicants would note that Palmetto Alliance's characterization of th.e record as being onesided is in error. Palmetto Alliance could have sought discovery from Applicant during the in camera process established by the Licensing Board but it chose not to; Palmetto Alliance could have sought to put on a case, but it chose not to; Palmetto Alliance did cross-examine the in camera Board witneses. Second, Palmetto Alliance argues that the Appeal Board will defer to the Licensing Board's findings and that any error the Appeal Board finds as a result of the subject Licensing Board's ruling will be determined to be harmless error. Palmetto Alliance Motion at p. 10. Such an assertion is simply unfounded.
Turning to the second standard, Applicants maintain that the Appeal Board's failure to address the motion will not result in unusual delay or expense. Delay and expense are not involved in this motion. The Licensing Board has already ruled that there will not be any delay which could be occasioned by providing Palmetto Alliance yet a further l opportunity to taVe discovery. Nbsent delay, there can be l
no corresponding expense. Rather, Palmetto Alliance's i
argument. in this regard is similar to arguments which have been rejected by the Appeal Board on numerous occasions, 1 viz., if the Licensing Board's ruling is overturned on
_ appeal time and money will have been wasted. See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant,
- i2 -
Units 1 and 2), ALAB-675, 15 NRC 1105, 1113-14 (1982)(allegations of both delay and expense);
Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-641, 13 NRC 550, 552 (1931)(allegations of both delay and expense); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-635, 13 NRC 309, 310-11 (1981) (allegations' of delay) .10/
With regard to the third standard, Applicants maintain that Appeal Board review at this time will not 4
affect the basic structure of the proceeding in a pervasive or unusual manner.ll/ The' issue at hand does 10/ See Perry supra at 1113-14 wherein the Appeal Board stated:
Applicants' second argument -- that litigation of Sunflower's hydrogen control contention will lead to delay and increased expense -- is likewise unpersuasive. See Applicants' Motion,
- p. 12. 'We have noted, in similar circumstan-ces, the obvious fact that 'once the hearing is. held [,] the time and money expended in the trial of an issue cannot be recouped by any appellate action.' Susugehanna, supra, 13 NRC at 552. The Same is true, however, any time a contention,is admitted over a party's objec-l tions and the hearing. proceeds. The added 7
delay and expense occasioned by the admission of Sunflower's contention -- even if erroneous
-- thus does not alone distinguish this case so as to warrant interlocutory review. See ibid .
11/ Applicants assert that it is Palmetto Alliance Which seeks to affect the basic structure of the proceeding in a pervasive manner. In numerous instances it has sought to delay the proceeding by raising at the last moment matters Which it should have raised months previous. We can only say that such tactics cause us (footnote continued)
- )
i not affect the basic structure of the proceeding, rather it is focused on the special limi.ted procedures which the Licensing Board has imaginatively devised to treat late-filed concerns. As noted in the Background section all parties have been on notice of the procedures to be followed in the treatment of the subject issues.
Specifically, the Licensing Board's ruling of November 3, 1983 provided all parties with an opportunity to conduct informal discovery, such period running for over one month prior to the presentation of oral testimony. Palmetto Alliance is not only wrong on page 7 of its motion when it states "The Board has forbidden this, [to wit, -
discovery]"12/ it is guilty of a serious misrepresentation of the record. See IC Tr. 13, 40, 42, 145, 298-99.
Further, the Board provided an opportunity for any party to present an affirmative case responding to the Board's witnesses allegations. See IC Tr. 385. Also all (footnote continued from previous page) to view such actions as being directed to the delay and disruption of the proceeding.
i 12,/ Palmetto Alliance is also wrong when it states "this problem is compound because Duke and the Staff refused to cooperate with Palmetto Alliance even in any informal discovery." Motion, p. 7. The fact is that Palmetto Alliance never sought informal discovery from Aplicants on these matters. Rather, ir. an effort to make an appellate point it sought such informal discovery on December 13, 1983, several hours before the commencement of the hearing on these matters. At such time both Applicants and Staff refused Plametto Alliance's request, Applicants view being that the time for discovery was over. Tr. 11, 457.
l
- i4 -
4 parties were aware of the filing dates and the hearing dates and the tightness of the schedule. See IC Tr. 385.
Importantly, Palmetto Alliance did not oppose any of the referenced procedures adopted by the Licensing Board.
. The Board ruling concerning the - denial of further discovery has taken the above facts into consideration and is entirely consistent therewith.
The simple fact with respect to the third Catawba standard is that Palmetto Alliance's inaction is fatal to its position. Palmetto Alliance could have developed a ,
case; it could have contacted the in camera witnesses; it j could have determined the identity of documents and names of individuals; it could have sought such information from the Applicants. However, to the best of our knowledge Palmetto Alliance did none of the above. Such inaction must be taken into account when weighing whether interlocutory appellate review is warranted, and, When weighed, must be found to be so significant as to deny such review at this time.-
~ Palmetto All4ance's arguments in support of its position regarding the pervasive impact of the Licensing F Board's ruling are again ill-founded. Palmetto Alliance relies upon Midland as authority.13/ Applicants maintain that such case is inapposite. Midland involved a situation of immediate harm, i.e., if an unsequestered 13/ Consumers Power Co. (Midland Plant, Units 1 and 2),
ALAB-379, 5 NRC 565 (1977).
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.w itness heard the testimony of a prior witness, such unsequestered witness' testimony.could be affected. Here, however, as stated above, there is no immediate harm.
With limited exception, the allegations of the Board witnesses have been heard. If Palmetto Alliance is subsequently viewed as having a right to discovery such can be cured on appeal. Secondly, Palmetto Alliance reliance on Eli Lilyl4/ case is unhelpful to its position.
The Eli Lily court held that:
Every litigant has a duty to his client and to the court to proceed with discovery with reasonable promptitude. Reversible error arising from curtailment of discovery procedures must be premised on a demonstration that the -
court's action made it impossible to obtain crucial evidence, and implicit in such a showing is proof that more diligent discovery was impossible. (emphasis in original) [460 F2d at 1105].
As stated above, Palmetto Alliance cannot meet this test.
To the best of Applicants knowledge Palmetto Alliance took no discovery on this matter. More particularly, it sought no information whatsoever from Applicants with regard thereto, i
14/ Eli Lilly and Company v. Generix Drug Sales, Inc.,
460 F2d 1096 (5th Cir. 1972).
witness heard the testimony of a prior witness, such unsequestered witness' testimony could be affected. Here, however, as stated above, there is no immediate harm.
With limited exception, the allegations of the Board witnesses have been heard. If Palmetto Alliance is subsequently viewed as having a right to discovery such can be cured on appeal. Secondly, Palmetto Alliance reliance on Eli Li'lyl4/ case is unhelpful to its position.
The Eli Lily court held that:
Every litigant has a duty to his client and to the court to proceed with discovery with reasonable promptitude. Reversible error i
arising from curtailment of discovery procedures must be premised on a demonstration that the -
court's action made it impossible to obtain crucial evidence, and implicit in such a showing is proof that more diligent discovery was 1 impossible. (emphasis in original) [460 F2d at i 1105].
l l As stated above, Palmetto Alliance cannot meet this test.
l l
To the best of Applicants knowledge Palmetto Alliance took no discovery on this matter. More particularly, it sought no'information whatsoever from Applicants with regard thereto.
In sum, Palmetto Alliance has failed to satisfy the three-part test established by this Appeal Board with l
t I regard to interlocutory review. Accordingly, Palmetto Alliance's. motions should be denied.15/
14/ Eli Lilly and Company v. Generix Drug Sales, Inc.,
460 F2d 1096 (5th Cir. 1972).
15/ Inasmuch as Palmetto Alliance is not entitled to interlocutory review of the Licensing Board's ruling (footnote continued) r - -
- - + - - - - ~,, .. ,c.%., -,ou,.,,,,, , . . , , _ _ , . . ,.-_ , . , _ . . _ . m .-,
In sum, Palmetto Alliance has failed to satisfy the three-part test established by this Appeal Board with regard to interlocutory review. Accordingly, Palmetto Alliance's motions should be denied.15/
Respectfully submitted, L,
Michael McGaff y, m"
III [/
Anne W. Cottingham BISHOP, LIBERMAN, COOK, PURCELL
& REYNOLDS 1200 Seventeenth Street, N.W.
Washington, D.C. 20036 (202) 857-9833 Albert V. Carr, Jr., Esq.
Ronald L. Gibson -
DUKE POWER COMPANY P.O. Box 33189 Charlotte, North Carolina 28242 (704) 373-2570 Attorneys for Duke Power Company, et al.
January 3, 1984 h/ Inasmuch as Palmetto Alliance is not entitled to.
interlocutory review of the Licensing Board's ruling on further discovery of Board witnesses, it is not ,
entitled to interlocutory review of the question of whether the record should remain open while it conducts such discovery.
ATTACHMENT 1 11,217
- anllal 1 AFTERNOON SESSION 2-(1:45 p.m.)
3 4 JUDGE KELLEY: Back on the record.
5 The Board has a ruling. Following that we will 6 go to Mr. Johnson and his panel.
7 We have heard a motion this morning from 8 Palmetto Alliance seeking formal discovery in relation to 9 the concerns of the in camera witnesses. We heard argument to frcm other counsel.
11 The Board considered the argument. The Eoard 12 denies the motion for the reasons to be stated.
13 The relevant circumstances are these: The 14 testimony of the in camera witnesses were taken on the 15 8th, 9th, 10th of November. A motion is being made now on 3
4 16 December 12, more than a month later, one day before the 8
- 17 merits are scheduled to begin.
, o y 18 The Board repeatedly stated its objectives and 2
l 19 discussion of procedures for these in carera witnesses to i
- l j 20 avoid, if we possibly could, formal discovery procedures, i
I
. 21 argely because they would take too much time.
i t
9 22 This is reflected in the early procedural 3
< , -23 discussions. In furtherance of that objective, we asked the l !
24 witnesses to cooperate in informal dise:cvery. They indicated 25 generally that they could.
1
jonlla2 11,218 1 In various scheduling discussions over the 2 past several weeks it has always been assumed that the 3 merits of the in camera concerns would be addressed around 4 this time.
5 Palmetto said nothing to indicate that it 6
wanted formal discovery until today, again on the eve of 7 the hearingyon che merits.
8 To orant formal discovery now would work a 9 drastic change in the procedures that the Board and the 10 other parties have been assuming and working under all along.
ii It would prejudice the applicants who have been working to 12 meet the Board's assumed schedule.
13 It would certainly delay the compiling and i4 closing of the record in contention 6.
It would relate substantially, perhaps very 15 i
16 substantially -- we can't tell how long -- it might very
$ 17 well, however, prejudice the Board's ability to decide the
.C l- is safety issue prior to the fuel load, anticipated fuel _ load i-
- i9 date, and is contrary to the Commission's policy on the' 20 conduct of licensing proceedings.
5 In all these circumstances , we would require
-j 21 r
22 a strong showing of good cause before we grant formal discovery among these in camera issues, except a showing
! 23 i
24 has not been made.
25 To begin with, as we have said before, it is a f
=, ~ .a ..
, jonlla3 11,219 1 belated request. It should have been made, if at all, 2 several weeks ago.
4 3 Secondly, we have had. informal voluntary 4 discovery available, presumably available all along.
5 We don't know whether it has been used extensively or at all.
6 In any event, there haven't been any complaints brought to 7 US about the inadequacy of formal discovery and cooperation 8 until now.
9 We don't think there is any persuasive showing 10 in the need for discovery.
11 Some of the items that the Board has left in --
3 12 .by left in I mean those where we have denied motions to 13 strike -- have already been the subject of extensive 14 testimony.
15 For example, Mr. Hoopingarner's concerns.
f to All other matters were left in, at least were in the broad 8
- 17 parameters of contention 6.
e l 18 A few, I think, a very few are truly technical, 3
- l 19 but taken, for example, the lamination matter that the Board 20 singled out, thought might be most serious, there has been j' 21 no showing by Palmetto that they can make any technical I
r.dhla 22 contribution to the resolution of that issue.
lllbl -23 Indeed, as stated yesterday by Mr. Riley, 5
24 Palmetto then litigating the contention number 44 tried and 25 failed to obtain the services of a me ta llurgist.
- .,,,-.----,...v-, -- ,
d -- --
4
'cnllb2 11,220 1 Finally, these are, after all, Board witnesses.
2 Our primary concern is whether the concerns of these, our 3 witnesses, have been addressed.
4 It is not a matter of the Board depriving a
. 5 party of discovery in an adversary context with respect 6 to a party, or that party's adversary. That has been 7 accorded.
8 So our bottom line in denying the motion for 9 discovery, we are going to go ahead with the hearing starting 10 presumably tomorrow afternoon on the merits of the in camera 11 concerns. We expect all parties to participate.
12 Concern was expressed by us, among others,
- 13 I think by everybody, whether we are in a position now to 14 address these concerns fully.
15 We asked Mr. Johnson, for example, whether the f 16 staff thought it could. He was going to get back to us on 17 that.
I e
[
18 We'are concerned that we address these issues
-i .
i I' 19 adequately and if we are satisfied that they are resolved i
i j 20 one way or the other, we think as far as that is concerned
=
l l 21 the proper thing for us to do is to go ahead and hear what I
- 22 is to be presented.
,'g !
- 23 The staff, for example, at the close of the 24 whole thing says that there is some issue that they would 25 vant to look at, they don't think we have enough information,
+
-jon1163
- 11,221 1 we will take that into consideration.
2 Perhaps we will have to hold the record open r 3 on that.
4 It is simply that' Palmetto cou.ld say that 5 particular things were not' adequately addressed, and we will 6 consider that.
7 We don't think it is warranted to stop everything 8 in its tracks and take us much longer to get into a deposition 9 .and interrogatories, document requests. We think that is not to justified at all.
11 So that is our ruling on that point. Our intent
- 12. is to proceed.
13 MR. GUILD: Mr. Chairman --
14 JUDGE KELLEY: Yes?
15 MR. GUILD: A couple' matters in this regard.
{- 16' First, I have a motion for reconsideration.
I 17 It has been brought to my attention since the earlier o
[ .18 motion was heard after the Board's hearing it this morning, i .
i 19 admitting a number of new in camera concerns, that the i
[ 20 precedent that the Board proposes to follow is inconsistent l .i l
l 21 with both the precedent and pending precedent in previous r.
- 22 licensing proceedings with respect to consideration, if you I
l' I
5
.23 will, of whistleblower witnesses who have technical testimony, l 24 It is also inconsistent witn the recent 25 statement of policy by the Commission of August 10, 1983,
ATTACHMENT 2 11,523 i
4-l 1 JUDGE KELLEY: Okay. We are back cn the I
. i 2 recora.
We have pending a otier frcr Palmetto 1 T
the ir camera j 4 Alliance to stay the evidentiary hearincs cr i I
5 concerns rhich we had scheduled to begin later today and i
- go thrcuch Thursday and Friday, essentially.
We have considered that notior and the 7 f E responses, and f rar':ly found it a difficult issue to decide.
Our decision is that we are coing to grant the motion ir pnr: and we are going to deni che action in part. i First, I will spell out just what it is we are
'2 c. o ina. to do, then I will explain why.
'2 As to the grant, we are going to stay the
' evidentiary hearing on one technical issue to which two 15 cf the witnesses spoke, including Mr . I,ar.gley as a public
.- 'e witness.
4 We are going to stay that hearing until the 5 :7 0
l :S staff's technical position on it is read,,
the 3
l '0
- I vill tell ecunsel off the re:crd 1: hat r.
l 20 , issue is. I will tell fou later off :Pe re:Ord.
- i vost , as to the rerainder of the rotion, we are l.
21 E
a 22 denving that stay as to the remaininc concerns other than the
~.
m 5 23 singlo one I referred to, and inc lud inc. the Leard c.uestions, 3
we c. roc.ose to co ahead vith the evidentiar; hearinc.s x
C m
24 25 throuch the rest of this week.
11,526
.'cnan2 1 ':ow , as tc why we tcck this approach, we had ;
2' indicated earlier we intended te hcid these hearings, 3 and indead we would ha'ce denied the motion fcr a stay but 4 for the staff's inabilits to prcceed, as explained to us 5 this rornine b, "r. Jchnson.
e Me were under the ir.pression that staff was 7 prepared to join the issue on these Concerns. !!ow , we don't 5 blane Mr. Johnson. He has flagged us on this before, and we
- are fulli a.zare of the difficulties of working in a govern =cntal agency and getting positions deceloped. It is not at all reflectinc on Mr. Johnson.
12 We really tho-ght we were ready to go. Then we heardfrom him in more ?etail this corning. It concerns 13
'e us this corning.
15 In any event, it J.cesn't seer sensible for us 4 le to o.roceed now, and ve are goinc to have tc bear fror the
.n L
enu 4 ti 17 staff later on a particular technical issue, and in effect,
$4bl ie quite likely, bave to retri the natter. .
3 l 10 .
The staff vas not prepared to say, and e E
4 l 20 understand why it tas not prepared tc say, v'.ich of the u
2 :1 in camera issues it woulc, be deve,icpine a position on and
- 22 which it could view as not sufficiently sicnificant or for
~,
=
23 i some other reason vould not pursue.
lE O
^
24 We thin:- in these circumstances it involves 25 ! the Board to review the issues in question, and we have done 1'
f.
i~
11,527
$cn4b2 ,
4
-1 that.
' i
! As we view the safety significance of these 2 l-3, in camera concerns, other than the single one that.we are
-grantinc the stay on, and in view of putting it in, in. view t
5 of their ,;rior de'relopment in this litigation, we think we 4 e prob:bly-can resolve them now without a staff position.
7 Ve Can reconsider that in light of developments, ift it becenes apparent that we have to hear from the staff, e
- ce will have to wait and hear frce the. staff. But we are.
i :c cahing a probability call at this point.
l' Now, this means that it won't necessarily have 12 to affect the receipt of the staff position later on in u these-positions, wbich will be presurably later on after the ecord.is closed.
15 We are coino to ask the staff if they develop e
16 inspection reports, for exarple, or something comparable
{.- l 17' on these issues, that they serve copies on the parties and
_k' e
,~ 15 that will put any party in the position to seek to reopen r .
3 I
I lo} the record on the matter if they believe that should be r t.
$ 20 done.
2 21 !
As to the sincle issue I mentioned, we view
{.
r -- j s e., 22.! it as a complicated technical issue vith an apparent, We haven't made any 8 23 quite possible s,tfety sicnificance.
l-24 judgment on that.
! 25 In any event, we think we need a staff position i i i I
,_.-,_,..,.--.,,.--,-,-,e , ,,--.,,_.,o , ,p.y,.-..__,-,.,y __,,,.._.-.,,,,,m_-,_my,,, ,.m. ,,-,m.,r--_,,,,,._,._m .
11,529 jen4b4 k
i i merits, and our skepticism about Palmettc's likelihood of i
2 success, as it is now applied to this ruling we have !
3 granted - granted and denied. ,
4 1.s to cer:parative injury, ce hsce spoken to ,
i 5
that yesterday. It is in the record, cur view, on who is I
c injured rost b"s going ahead cr staying the proceeding. I l t
i- won't receat that.
t 5
e There is a potential injure to the acclicant e if we delayed all these matters in terms of the g ava ilab il i t*. cf the Ecard to comply with the Cc=nission's ;
si goal of tryinc these cases inside the fuel load date. !
1,,
Palmetto was not orecared to cross-examine 33 cr the ratters. Ne can only say that voluntary discovery i; has been cpen for some time, and their injury is, at least end4b i3 tc some extent, self-inflicted.
- +
, 4cl .o.
We think ultimately the public interest that w .
- l. 17 o is weighing here speaks in favor of timely completion of ig this hearing consistent with the Board gettinc what it needs e
3 e
t
.c i on the issue in contest, and that we thirk cur approaches, rs 'I .
acain, arc within a reasonacle .calance.
- -n
. .a -
!' 73 So that is our rulinc on the stay motion.
i i
e 22 I understan' there is, I believe, a tentative
- i 8, < 3 arrancement for an Acceal Board conferance.
r 3
MR. CUILD: Yes, sir.
2.
25 Mr. Chairman, let me just raise one point. I
. ~ - - ,
ATTACHMENT 3 11,625
- n9c3
.2 1 Now, it is just a shade after 3:00. We would like to move to the staff, but we have a couple of minutes' 2
3 ;, work here to do.
.l 4 !
We have been given a ccp; cf the ruling i
entitled " Excerpt of Proceedincs." Everyone has one. It 3
is not great English prose. I don't intend to try to make 3
't 7, it perfect. I would like to scratch some of the mud off of a.
sonc areas, and just take a couple of minutes to mak'e some corrections, and I think some transcriptions or additions ic or subtractions of a word here.
p We are not changing the ruling at all but in 12 , tho' interest of clarity I will do this.
13 There is nothing on page 1.
i Page 2, line 3, after the word " stay" add the 15 ' vord " altogether," " altogether" on the next line, and add
' the phrase -- it will read this way. I will take it slow.
io
$ 37 "But for the staff's inability to" -- strike the word 5 18 " proceed" and substitute "present its technical positions
's I
ig noW."
$ 20 Again, the phrase is "present its technical
$ 1 21 ! positions now.
i So that that phrase reads: "Eut for the
, 22 I 23 staff's inability to present its technical positions now 3
s 24 as explain.d to us this morning by Mr. Johnson."
25 On line 7, strike the word "the".
i i
11,626
.jen9c4 l Line 11, take it read, "not at all a 2 reflection on Mr. Johnson."
3 At-line 13, 14, just strike out."it concerns
\'
', us this corning" because it comes through as gibberish.
5 You' don't need it.
6 i
Line 16, strike "and" and put in "if" instead.
t 7i 1 Line 24, the last word, change " involves" to 1
8! " devolves". -One vord. And add the word "to" so that it
- i 1 reads "We think in these circumstan;es it devolves to the 10 Ecard" and so on.
11 On.the next page, line 4, strike the last five i
12 words, " putting it in, in view". Strike that.
13 ; The next line, strike "of", the first word.
'd Line 7, change it to "We can reconsider that 15 in light of the" and insert " developing" for developments t
16 and put a period there so it reads: "We can reconsider that 9
' 17 in Eght of the developing record." Capitalize the T for a o
18 new sentence.
.! 19 On the following line, after the vord " staff" t
4 h~
20 insert the-following four words: "before resolving the m
21 issue."
2 t
22 At line 11, strike "it" and put in "we".
3 3- 23 Mr. GUILD: Judge, that line about the staff 5*
24 resolving the issue and then a new sentence is "we" --
25 JUDGE EELLEY: That "we are".
I i
4
~on9c5 i
11,627 a
- j. 1 MR. GUILD: But we are. Thank you.
2 JUDGE KELLEY: Yes. And on the next line, 3 change the "it" to "we".
4 Line 12, strike "effect". The.second, third 5 word is changed to " receive". Strike the next two words, o; "of the".
I 7l Chance the position " positions".
i 8' Strike "in" at the end, i
In the next line add the word "available" ol to between "be" and " presumably".
11 I will read that whole sentence.
12 ' "Now, this means that we won't necessarily
- 13 ; have to receive staff positions-later on these positions" --
14- make it " concerns".
15 ' Line 13, strike " positions" and make it
- i
{.- 1e i " concerns".
i
$ 17 I will start acain.
l ,
c- l
. ml 15; "Now,'this means that we won't necessarily t
to ' have to receive staff's positions later on these concerns, r.
4 c I= 20 i q
which will be available prosumably later on after the record
- i
, ! 21 ' is closed."
l 's b5 22 Line 22, strike the last two words, "and l-1 s
23 l >]- apparent".
(- na Line 23, strike "quite" so that the sentence 25-
. ends " complicated technical issue with possible safety I
~11,628 jon9c6 ,
I significance."
2 The next page, line 1, after the second word, 3 "that" add " technical issue" so it reads: "on that technical d issue in order to resolve it." ,
5 Line 9, strike that -- line 9 is all right.
I 6 Line 13, change "is" to "was". .
7 Line 16, strike"with"at:.theendofkheline.
8 Line 22, strike " referred" and substitute 9 " considered." .~
10 Line 23, after " parties" insert the words 11 " positions on" so that the sentence reads, "We have ~
12 considered the parties' positions on that."
13 Page 5, line 2, strike out "it". Substitute 14 "that standard".
15 The next line, strike " granted". Put in the 16 word "made".
2 v
8
- 17 MR. GUILD: Judge, again, we have granted, S
e 18 and then --
i
! 19 JUDGE KELLEY: The first " granted", strike,.
t-4 j 20 and substitute the word "made". Put in a period. Strike ig 21 Strike out the "-- granted'and denied." >
out the rest.
22 You don't need it. Take it out.
5
, 23 Line 10, change " availability" to " ability".
5 24 Line 16, strike "that" at the end of the line.
25 Line 17, strike "is" at the beginning of the 4-p q -r w ,-v w q * - - , -
11,629 jon9c7 1 line.
2 Strike out " favor" to " favors". -
3 Strike the "of" after " favors".
4 Line 19, change " issue" to " issues".
5 Line 20, strike-out "within".
6 I will read the whole sentence.
7 "We think ultimately the public interesu e weighing here favors timely completion of this hearing 9 Consistent with the Board,getting what it needs on the 10 issues in contest and thtE we think our approaches 11 generally are a reasonable balance."
12 Those are the chinges that we have.
13 Again, I think that is fully consistent with 14 what we intended.
15 MR. GUILD: If I can make a statement for the f 16 record.
17 JUDGE KELLEY: Yes.
l 18 MR. GUILD: I communicated with the witness 3
l 19 in question and in light of that discussion we have t
l 20 cancelled the 3:30 conference call.
We intend to file papers'either late this
[ 21 t
22 afternoon or tomorrow morning, but we have withdrawn our g
E 23 initial recuest, if you will, for the oral or extraordinary s .
a 24 stay. We intend to proceed over our objection.
- 25 JUDGE KELLEY: I am not -- I'think I understand.
4
.k
00CKETED US'3C UNITED STATES OF AMERICA 24 N ~4 N-NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
DUKE POWER COMPANY, et al.
) Docket Nos. 50-413
) 50-414 (Catawba Nuclear Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Response In Oppo-sition To ' Palmetto Motion To Direct Certification Of Licensing Board's Denial Of Discovery By Palmetto On Issues, Raised By In Camera Witnesses, As To Which The Board Is Allowing Further Faiitual Testimony By Applicant, And To Reverse That Denial; And Palmetto Motion To Direct That The Record Remain Open Until Such Discovery Can Be Had'" in the above captioned matter has been served upon the following by deposit in the United States mail this 3rd day of January, 1984.
Alan S. Rosenthal Dr. Paul W. Purdom Chairman 235 Columbia Drive Atomic Safety and Licensing Decatur, Georgia 30030 Appeal Board U.S. Nuclear Regulatory Dr. Richard F. Foster Commission P.O. Box 4263 Washington, D.C. 20555 Sunriver, Oregon 97702 Thomas S. Moore Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Howard A. Wilber Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555
)
James L. Kelley George E. Johnson, Esq.
Chairman Office of the Executive Legal Atomic Safety and Licensing Director Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commicsion Washington, D.C. 20555 Washington, D.C. 20555 Albert V. Carr, Jr., Esq. Karen E. Long, Esq.
Duke Power Company Assistant Attorney General P.O. Box 33189 N.C. Department of Justice Charlotte, North Carolina 28242 Post Off4ce Box 629 Raleigh, North Carolina 27602 Richard P. Wilson, Esq.
Assistant Attorney General Don R. Willard State of South Carolina Mecklenburg County P.O. Box 11549 Department of Environmental Columbia, South Carolina 29211 Health 1200 Blythe Boulevard Robert Guild, Esq. Charlotte, North Carolina 28203 Attorney-at-Law P.O. Box 12097
- Scott Stucky Charleston, South Carolina 29412 Docketing and Service Section U.S. Nuclear Regulatory Palmetto Alliance Commission 2135 1/2.Devine Street Washington, D.C. 20555 Columbia, South Carolina 29205 John Clewett, Esq.
Jesse L. Riley 236 Tenth Street, S.E.
854 Henley Place Washington, D.C. 20003 Charlotte, North Carolina 28207
/
/J. Michael McGa ry, Ip -
- Designates those hand delivered.