ML20214Q588

Memorandum & Order Directing Parties to File Listed Info W/ Board & Serve Info on Other Parties on or Before 861229. Parties Should Schedule & Complete Depositions of Listed Witnesses on or Before 870116.Served on 861202

ML20214Q588
Person / Time
Site:	Diablo Canyon
Issue date:	12/01/1986
From:	Cotter B Atomic Safety and Licensing Board Panel
To:
References
CON-#486-1767 86-523-03-LA, 86-523-3-LA, OLA, NUDOCS 8612050204
Download: ML20214Q588 (6)

Text

rc i l'ld 6

UNITED STATES OF AMERICA DOCHETED NC NUCLEAR REGULATORY COMISSION ATOMIC SAFETY AND LICENSING BOARD '86 DEC -2 P3 :31 ,

Before Administrative Judges:

CFFE: ex ..

8. Paul Cotter, Jr. , Chairman 00Cr u nn;i .t on Glenn 0. Bright MC" Dr. Jerry Harbour SERVED DEC 21986

)

In the Matter of: ) Docket Nos. 50-275-OLA ,

and 50-323-OLA l PACIFIC GAS AND ELECTRIC COMPANY 1 (Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) ) December 1,1986 I

MEMORANDUM AND ORDER I I. Background

)

On November 25, 1986, the Board held a telephone conference in the  !

captioned proceeding at the request of the Nuclear Regulatory Commission Staff (the Staff). Participants in the Conference included representatives of the three intervening parties, Ken Haggard on behalf of Consumers Organized for Defense of Environmental Safety (CODES), Dia'n  !

M. Grueneich, Esquit e, for the Sierra Club and the Mothers for Feace; Bruce Norton, Esquire, for Applicant Pacific Gas and Electric Company (PG&E); and attorneys Henry J. McGurren and Lawrence J. Chandler for the Staff.

~

8612050204 e61201 PDR ADOCK 05000275 G PDR DSo2

m l

^

Staff Counsel stated that _the reason for requesting the conference -

was to resolve Staff's dissatisfaction with responses to its interrogatories to the three intervenors and to avoid the time consuming process of filing motions to compel. Staff averred that NRC had not received adequate responses to two rounds of interrogatories requesting:

(1) a list of witnesses; (2) a list of exhibits; (3) a list of documents; and (4) a description of the views and positions of witnesses to be called.

Counsel for PG&E joined with the Staff in asserting that responses to PG&E interrogatories by the Mothers for Peace and Codes were inadequate. Although expressing some dissatisfaction with the Sierra Club's responses, PG&E stated that-the substance of its questions had been answered by Dr. Ferguson who named himself as a witness on behalf of the Sierra Club. However, PG&E argued that it was now too late for the intervenors to complete responses to interrogatories and that they should be barred from presenting witnesses and documentary evidence in the proceeding for their failure to respond in a complete and timely fashion.

Counsel for the Sierra Club and Mothers for Peace responded that,-

if Staff and PG&E's complaints constituted a motion to compel, the motion was untimely because it was required to be filed 10_ days after the answers to interrogatories were filed and that the operative date for the filing of answers was November 10, 1986. Consequently, motions l

y

w to compel would have been due November 20. Therefore, counsel argued, PG&E and the Staff had slept on their rights and are not entitled to

)

relief. Counsel also argued (joined by Mr. Haggard on behalf of CODES) l that the three intervenors simply did not know what witnesses or documents they would rely on although counsel for the Sierra Club and Mothers for Peace asserted that those two intervenors would have a better idea of witnesses and documentation after motions for summary disposition were filed. Counsel also argued that no ruling had been issued requiring that the information sought was needed by a date certain.

Counsel for PG&E responded it would be impossible to file a summary disposition motion until he was informed of intervenor's witnesses and their positions on the issues. Staff Counsel concurred.

During the telephone conference, Counsel for Mothers for Peace confirmed that their Contentions 2 and 3 had been withdrawn as stated in their Answers to Interrogatories dated October 3,1986.

II. Discussion We need not reach the question of whether Staff's telephone conference request arises to the status of a motion to compel and, if so, whether the motion is timely. At this juncture, this Board's obligation to prudent case management overrides such concerns.

9

)

6 This Board's obligation to insure that the proceeding is conducted in an orderly and expeditious manner is well established. 10 CFR Part 2 Appendix A, at p. 120(1986). See also Statement of Policy on Conduct of Licensing Proceedings,13 hRC 452 (CLI 81-8,1981).

The degree of confusion and argumentation evidenced in the telephone conference and in the conduct of discovery in this case to date is not conducive to an orderly and expedited resolution of the issues in this proceeding. Consequently, the Board has examined the record in this matter including both the discovery conducted to date and the schedule set in our memorandum and order of August 28, 1986 and reached several conclusions.

First, the record makes clear that the essence of the matters at issue here is factual and that, consequently, the likelihood of success of any motions for sumary disposition is de_ minimis. The time, effort, and resources required to file motions for summary disposition, weighed l against the likely success of such motions, leads the Board to conclude i they are not warranted.

'l Second, it appears that circumstances warrant setting dates certain j l

for all parties to file and exchange information concerning their direct 1 l

case as follows:

(1) Witnesses who will testify on their behalf;

\,

4 (2) Lists of exhibits they intend to introduce; (3) Documents upon which the witnesses will rely; (4) List of documents the parties intend to use on cross-examination (unless disclosure would compromise the cross-examination);and (5) A brief description for all witnesses listed (no longer than two pages for each witness) of the views and position on the issues about which they will testify.

Accordingly, the foregoing information for each party's direct case is to be filed by the parties with the Board and served on each other on or before December 23, 1986. If any party is not going to present documents or put on witnesses in their direct case, then they shall so notify the Board and all other parties by December 23, 1986. In this context, the words " filed" and " notify" mecn received. Documents and witnesses not identified by December 23, 1986 will not be received as a part of any party's direct case. If any of the parties now know of any documents or witnesses to be used on rebuttal, they should also be identified.

Thereafter, the parties are to schedule and complete any depositions of witnesses listed on or before January 16, 1987. This )

memorandum and order is not intended to preclude PG&E from taking the deposition of Dr. Ferguson reported by counsel as scheduled for December 4 or 5, 1986.

l l

Prefiled testimony is to be filed (that is, received) with the Board and served on other parties on or before January 26, 1987. The hearing in this case will comence at 9:30 A.M. Monday, February 2, at Avila Beach, California.

It is so ordered.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/

h Ib F. Patfl Cotter, Jr. , C iruan ADMINISTRATIVE JUDGE '

Dated at Bethesda, Maryland, this 1st day of December,1986.

9