ML20053E018

Answer Opposing Ucs/Ny Pirg 820528 Motion to Compel RR Dynes,S Lecker & Three Employees of Parsons,Brinckeroff, Quad & Douglas,Inc Depositions.Request Fails to Comply W/Commission Rules & ASLB Order.Certificate of Svc Encl

ML20053E018
Person / Time
Site:	Indian Point
Issue date:	05/31/1982
From:	Brandenburg B, Morgan C CONSOLIDATED EDISON CO. OF NEW YORK, INC., MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-SP, NUDOCS 8206070532
Download: ML20053E018 (13)

Text

.<

e- . .

U!IITED STATES OF AMERICA T M50

~~ ~

ITUCLEAR REGULATORY COMMISSIO!I ATCliIC SAFETY A!!D LICE!!SIIIG BOARD-Defore Administrative Judges:

.g g' ; -4 N0 :30 Lou i s . J . Carter, Chairman .

Frederick J. Shon C l' . -1 Dr. Oscar II. Paris

--~~-------~~-------~~-----~~~----------~~x In.the Matter of ) Docket Hoe.

CCI!SCLIDATED EDISCII COtiPAMY CF 11EU Y0nn, ) 50-247 SP IllC. (Indian Point, Unit I;o. 2) 50-286 SP:

)

POCER AUTilORITY OF TI E STATE OF !!EU YORK Nay 31, 1982 (Indian Point, Unit !!o, 3) )

---

x LIC E!!S EES ' A!! SUER TO UCS/I1YPIRC t'OTIOt1 TO CCt1PEL DISCOVERY Consolidated Edison Company of IIew York, Inc. ("Cen Edison"), licensee of Indian Point Station, Unit *:o. 2, and-Pouer Authority of the State of IIeu York, licensee of Indian Point 3 Iluclear Fouer Plant (collectively the " licensees"),

submit this nenorandun, pursuant to 10 CFR 42.730(c), in opposition to the motion served on the licensees on the

- af ternoon of *:ay 28 - hours before the close of business on the last business day before the close of discovery - by joint 950$ $

I l' r

hhk6070532820531 i O ADOCK 05000247 PDR

. o .

intervenors Union of Concerned Scientists and the New York Public Interest Research Group, Inc. ("UCS/UYPIRG") to compel depositions of Dr. Russell R. Dynes, Dr. Sidney Lecker,.and three employees of Parsons Drinckerhoff Quade & Douglas Inc.

(the " Parsons Brinckerhoff witnesses"), all of whom licensees intend to present as witnesses at the-hearings. UCS/NYPIRG's motion should be denied for the following reasons.

(1) UCS/NYPIRG's request is not in compliance with the Commission's rules or this Board's orders regarding discovery.

10 C.F.R. S2.740a(a) requires that reasonable written notice of a deposition be given to all parties. Herein, UCS/NYPIRG first gave oral notice of their request at approximately 4 P.M. on May 24 -- four working days before the close of discovery established by the Board. At no prior point, including the extensive discussion of discovery at the prehearing conference on April 13-14, did UCS/UYPIRG indicate an intention to take deposition testinony herein.* Correspondingly no provision for At the April 13 prehearing conference, licensee Con Edison reiterated its earlier' statement to the Board that the Parsons Brinckerhof f uitnesses would testify (Tr.- 656) .

The taking of depositions was not included in the proposed schedules submitted to this Board. See, e.g., UCS-UYPIRG Prehearing Memorandum and Proposed Order at 7-8 ( De c . 1, 1981); UCSPAC's Prehearing Menorandun and Response to Staff and Utility Answers to Petitions for Leave to Intervene at 3 ( Dec . 1, 1981) (Concurring with UCS/MYPIRG's general approach); HRC Staff Prehearing Conference Memorandum and Proposed Order at 7-8 (Mov. 27, 1981).

h

such discovery and the scheduling changes that would be required was included in the Board's April 23, 1982 order.

• Uhile UCS/NYPIRG is not in compliance with the requirement of reason-able written notice of 10 C.F.R. Part 2, this Board's order would in any event bar the taking of depositions since "thic agency's Rules of Practice provide that discovery may be

' 'limited by order,' or may 'not be had,' or even 'nay be had only by a nethod of discovery other than that selected by the party seeking discovery.'" Northern Indiana Public Service Co.

(Bailly Generating Station, Nuclear 1), 2 N.R.C. 858, 870 (1975).

Contrary to the sonewhat less than fcrthcoming characteriza-tion presented by UCS/UYPIRG, Power Authority counsel Mr.

Levin advised UCS/NYPIRG counsel Mr. Blun on May 25 that it was on this basis that licensees wou;d not produce uitnesses for deposition. As Mr. Levin pointed out to Mr. Blum on this occasion, had UCS/NYPIRG raised the subject of deposi-tions at the April 13-14 conference, a different discovery schedule would have been adopted reflecting the time needed to prepare for and take depositions.

Moreover, at no time following Mr. Levin's May 25 notice to Mr. Blun did UCS/NYPIRG notify Mr. Levin or any other representative of the Power Authority that an oral or written notion would be presented to the Board. Indeed, Mr. Levin's first hint that such a notion night be filed was gained purely by chance as a result of a telephone call Thursday afternoon from Puth-Ann Miller, Clerk to the Board.

E

I i

(2) UCS/NYPIRG's failure to give the required notice is particularly prejudicial in the circumstances of this expedited hearing. Both the witnesses UCS/MYPIRG' seeks to depose and counsel for the licensees are fully engaged in responding to intervenors' interrogatories and preparing the witnesses' direct testimony. Since the commencement of discovery herein, the licensees have responded to cver 130 interrogatories posed by the intervenors. (This contrasts with the failure of the intervenors, including UCS/NYPIRG, to make any neaningful response to the licensees' interrogatories.) To now require licensees' witnesses and counsel to take the substantial additional time to prepare for and attend depositions would severely inpair licensees' ability to meet the June 7 deadline set by the Board for the filing of direct testimony. See United States v. 412.93 Acres of Land, 455 F.2d 1242, 1246 (3d Cir. 1972) (deposition subpoena quashed because it would unduly delay trial).

(3) There is no necessity for the deposition testimony sought by UCS/NYPIRG. UCS/NYPIRC has not made any showing of special circumstances which would relieve it of the requirenents of the Commission's ru;3s or the Board's order. See also Fed. R.

Civ. P. 26(b)(4)(A)(ii) (deposition testinony from expert witnesses pernitted only upon court order). The licensees have provided in their interrogatory answers extensive information regarding the b

witnesses, including the subject matter of their testimony, the t grounds for their opinions, and lists of publications (licensees' answer to UCS/UYPIRG interrogatory no. 1). Further, when required by UCS/UYPIRG's instructions to its interrogatories, licensees have identified those instances in which the licensees' witnesses contributed to the licensees' interrogatory answers. As the Appeal Board stated in Northern Indiana Public Service Company (Dailly Generating Station, nuclear 1) 2 U.R.C. 858, 869 (1975):

... It is true, . . . that Joint Intervenors were not permitted to depose the witnesses.

But this was not prejudicial "because those from whon depositions were sought appeared as witnesses at the hearing and were thus made available to cross-exanination by the party seeking discovery ," U. L'. R. B. v. Interboro Con-tractors, Inc., 432 F.2d 854, 860 (2nd Cir. 1970),

certiorari denied, 402 U.S. 915 (1971). Accord:

U.L.R.B. v. Miami Coca-Cola Bottling Company, 432 F.2d 994, 996-97 (5th Cir. 1968); U.L.R.D.

v. Safeway Steel Scaffolds Company, 383 F.2d 273 (5th Cir. 1967).

The proposed depositions herein would nct contribute in any manner to the ef ficient conduct of the hearings. Licensees' extensive discovery responses to date have already fulfilled l

l the principal purpose of discovery: to avoid surprise at the

! hearings. Depositions would only impede accomplishment of the schedu'.e set by the Board.

(4) To the extent a basis for 'JCS/MYPIRG's notion l

l t

can be discerned from its noving papers, it appears to be that UCS/MYPIRG considers licensees' interrogatory ansvers to be, in sone vague sense, inadequate. If this is in fact UCS/UYPIRG's argument, the remedy provided under the Connission's rules is a notion pursuant to 10 C.F.R. S2.740(f) directed to the allegedly defective interrogatory ansvers, not a request for deposition testinony. UCS/UYPIRG has not made such a notion.*

The completeness of licensees' interrogatory answers is apparent when these answers are compared to UCS/UYPIRG's answer to licensees' interrogatory regarding UCS/NYPIRG's witnesses, ** which entirely fail to specify (1) the

• Moreover, nowhere has UCS/NYPIRG stated that the absence of d2 positions will prejudice its preparation for the hearings in any way, nor has UCS/UYPIRG set forth any_information clained to be needed which was not supplied in licensees' extensive interrogatory responses.

• • Licensees posed the following interrogatory:

Iden ti f y :

(a) each person whom you expect to call as a witness at the evidentiary hearings relating to Commission Questions 3 and 4...

(b) the subject matter and board contention i and underlying intervenor contention on which the witness is expected to testify; (c) the substance of the facts and opinions to which the witness is expected to testify and a sunnary of the grounds for each opinion;

[ footnote continued on next page]

L-

subject matter on which its witnesses are to testify; (2) the substance of the facts and opinions to which the witnesses are to testify; (3) a sunnary of the grounds for such opinions; and (4) any proceeding in which its witnesses have previously

[ footnote continued from previous page]

(d) each document...upon which the witness has based his testimony, or.will so rely at the hearing, or will otherwise refer to in support of his. testimony; (e) any relationship between the witness and any intervenor or party therein; and (f) any proceeding in which the witness has pre-viously testified and the transcript pages of such testinony...

UCS/UYPIRG's response to this interrogatory was:

Jan Beyea and Brian Palenik: Board Contentions 3.6, 4.1, and 4.3 and intervenor contentions referenced thereunder. Biographical information and list of documents attached as Appendix A. Pages of previous testimony unknown.

Kai Erikson: Board Contentions 3.2 and 3.7 and interve-nor contentions referenced thereunder. Biographical information and list of documents attached as Appendix B. Pages following page 12407 of testimony at San Luis Obispo, California, to be found in the NRC Public Eocument Rocn. Pages of other previous testimony unknown.

(e) No relationship.

. . l l

1 testified.* Thus, licensees, despite having posed proper interrogatories (see Fed. R. Civ. P. 26(b)(4)(A)(i)), have no knowledge of the subject matter or the grounds for the testimony of the UCS/NYPIRG witnesses. In contrast, licensees have specified the subject matter and grounds for the testimony of their witnesses.

For the above reasons , UCS/UYPIRG's untinely i

request to take depositions should be denied. However, in the event UCS/NYPIRG's request is granted, licensees request that those individuals identified as UCS/NYPIRG's witnesses, including Jan Deyea, Brian Palenik, and Kai Erickson, be produced sinultaneously with licensees' witnesses for de' positions.

I UHEREFORE, the licensees respectfully urge that UCS/MYPIRG's Motion to Compel Discovery be denied in all j respects, i

• UCS/NYPIRG disingenuously asserts that the pages of its i witnesses' prior testimony are " unknown." He doubt that the names of the proceedings in which its witnesses previously

testified (also called for by the interrogatory) are " unknown."

L

Respectfully submitted, Akab

• Bren't L. Branaenbur_ _ Charles Morgan [fJr.'

Paul F. Colaruni Joseph J. Levin, Jr.

CONSOLIDATED EDISON COMPANY MORGAN ASSOCIATES, CHARTERED OF NEW YORK, INC. 1899 L Street, N.W.

Licensee of Indian Point Washing ton , D.C. 20036 Unit 2 (202) 465-7000 4 Irving Place New York, New York 10003 (212) 460-4600 Thomas R. Frey General Counsel Charles M. Pratt Assistant General Counsel POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian Point Unit 3 10 Columbus Circle New York, New York 10019 (212) 397-6200 l Bernard D. Fischman l Michael Curley Richard F. Czaja l David H. Pikus l

SHEA & GOULD 330 Madison Avenue New York, New York 10017 l

(212) 370-8000 Dated: May 31, 1982 l

l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Louis J. Carter, Chairman Frederick J. Shon Dr. Oscar H. Paris

)

In the Matter of ) Docket Nos.

)

CONEOLIDATED EDISON COMPANY OF NEW YORK, ) 50-247 SP INC. (Indian Point, Unit No. 2) ) 50-286 SP POWER AUTHORITY OF THE STATE OF NEW YORK )

(Indian Point, Unit No. 3) ) May 31, 1982

)

CERTIFICATE OF SERVICE I hereby certify that copies of LICENSEES' ANSWER TO UCS/NYPIRG MOTION TO COMPEL DISCOVERY in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 31st day of May, 1982.

Docketing and Service Branch Ellyn R. Weiss, Esq.

Office of the Secretary William S. Jordan, III, Esq.

U. S. Nuclear Regulatory Harmon & Weiss Commission 1725 I Street, N.W., Suite 506 Washington, D.C. 20555 Washington, D.C. 20006 Louis J. Carter, Esq., Chairman

• Joan Holt, Project Director

• Administrative Judge Indian Point Project Atomic Safety and Licensing New York Public Interest Board Research Group 7300 City Line Avenue 5 Beekman Street Philadelphia, Pennsylvania 19151 New York, N.Y. 10038 L

Dr. Oscar H. Paris

• John Gilroy, Westchester Administrative Judge Coordinator Atomic Safety and Licensing Indian Point Project i

U.S. Nuclear Regulatory New York Public Interest Commission Research Group Washington, D.C. 20555 240 Central Avenue White Plains, New York 10606 Mr. Frederick J. Shon* Janice Moore, Esq.

Administrative Judge Counsel for NRC Staff Atomic Safety and Licensing Office of the Executive Board Legal Director

,U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Jeffrey M. Blum, Esq.* Brent L. Brandenburg, Esq.

New York University Law Assistant General Counsel School Consolidated Edison Co.

423 Vanderbilt Hall of New York, Inc.

40 Washington Square South 4 Irving Place New York, N.Y. 10012 New York, N.Y. 10003 Marc L. Parris, Esq. Charles J. Malkish, Esq.

Eric Thorson, Esq. Litigation Division County Attorney The Port Authority of County of Rockland New York and New Jersey 11 New Hemstead Road One World Trade Center New City, N.Y. 10956 New York, N.Y. 10048 Ezra I. Bialik, Esq.

Joan Miles Steve Leipsiz, Esq.

Indian Point Coordinator Enviromental Protection Bureau New York City Audubon Society New York State Attorney 71 West 23rd Street, Suite 1828 General's Office New York, N.Y. 10010 Two World Trade Center New York, N.Y. 10047 Greater New York Council on Alfred B. Del Bello Energy Westchester County Executive c/o Dean R. Corren, Westchester County Director 148 Martine Avenue New York University White Plains, N.Y. 10601 26 Stuyvesant Street New York, N.Y. 10003 L

l Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Appeal Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory

) Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Andrew S. Roffe, Esq. Honorable Richard L. Brodsky New York State Assembly Member of the County Albany, N.Y. 12248 Legislature Westchester County County Office Building White Plains, N.Y. 10601 Renee Schwartz, Esq. Pat Posner, Spokesperson Paul Chessin, Esq. Parents Concerned About Laurens R. Schwartz, Esq. Indian Point Margaret Oppel, Esq. P.O. Box 125 Botein, Hays, Sklar & Herzberg Croton-on-Hudson, N.Y. 10520 200 Park Avenue New York, N.Y. 10166 Stanley B. Klimberg Charles A. Scheiner, Co-General Counsel Chairperson New York State Energy Office Westchester People's Action 2 Rockefeller State Plaza Coalition, Inc.

Albany, New York 12223 P.O. Box 488 White Plains, N.Y. 10602 Honorable Ruth Messinger Alan Latman, Esq.

Member of the Council of the 44 Sunset Drive City of New York Croton-on-Hudson, N.Y. 10520 District No. 4 City Hall New York, New York 10007 Richard M. Hartzman, Esq. Zipporah S. Fleisher Lorna Salzman West Branch Conservation Friends of the Earth, Inc. Association 208 West 13th Street 443 Buena Vista Road New York, N.Y. 10011 New City, N.Y. 10956 L

Mayor George V. Begany Judith Kessler, Coordinator Village of Buchanan Rockland Citizens for Safe 236 Tate Avenue Energy Buchanan, N.Y. 10511 300 New Hempstead Road New City, N.Y. 10956 Ms. Amanda Potterfield, Esq.*

P.O. Box 384 Village Station New York, New York 10014 A '

David H.~ IhfD s~

i l

l Copies will also be served by hand delivery on the morning of June 1, 1982.

l l

L-