ML20080L925
| ML20080L925 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/29/1983 |
| From: | Crane P PACIFIC GAS & ELECTRIC CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8310030384 | |
| Download: ML20080L925 (18) | |
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' USNRC 1 UNITED STATES OF AMERICA gj 'SEP 30 52:d0 2 NUCLEAR REGULATORY COMMISSION e crTr Or 3EC?r : "'
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 5
6 7
8 In the Matter of )
) Docket Nos. 50-275 9 PACIFIC GAS AND ELECTRIC COMPANY ) 50-323
)
10 (Diablo Canyon Nuclear Power ) (Reopened Hearing --
Plant, Units No. 1 and 2) ) Design Quality 11 ) Assurance) 12 13 i 14 LICENSEE PACIFIC GAS AND ELECTRIC COMPANY'S 15 MOTION FOR SANCTIONS UPON GOVERNOR DEUKMEJIAN AND THE JOINT INTERVENORS 16 17 18 19 Licensee moves the presiding member of this Board, 20 and members thereof, for the imposition of sanctions upon 21 the Governor and Joint Intervenors for failure to seasonably 22 supplement their interrogatories as required by 10 CFR 23 $ 2.740(e)(1).
24 A. Facts 25 On June 27, 1983, the Governor filed his response 26 to Licensee's First Set of Interrogatories. Interrogatory l
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1 #2 of the first set requested, inter alia, the identity of 2 each person the Governor intended to call as a witness and 3 whether the individual would be offered as an expert. The 4 Governor responded as follows:
5 "At this time, it has not yet been de-cided what witnesses will be called. At 6 the appropriate time, the Governor will be prepared to exchange the lists of 7 witnesses, together with their qualifications, with the applicant and e all other parties." (Response at p. 5) 9 On June 27, 1983, the Joint Intervenors filed 10 their response to Licensee's First Set of Interrogatories.
11 Interrogatory #2 requested inter alia the identity of each 12 person the Joint Intervenors intended to call as a witness 13 and whether the individual would be offered as an expert.
14 The Joint Intervenors responded as follows:
15 "At this time, Joint Intervenors have not decided what persons, if any, they 16 may call or subpoena as witnesses at the reopened hearings on the issue of design 17 quality assurance." (Response at p. 2) 18 On August 4, 1983, Licensee filed its Third Set of 19 Interrogatories upon the Governor. Interrogatory #1 was 20 identical to interrogatory #2 in the Licensee's First Set of 21 Interrogatories.
22 On August lith, the Governor filed a motion for an 23 extension of time to answer the Second and Third Sets of 24 Interrogatories served upon it by the Licensee. In its 25 ///
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1 motion the Governor acknowledged that. the interrogatories 2 identified above were substani.ially the same.
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On August 31, 1983, the Governor responded to 4 Licensee's Second and Third Set of Interrogatories. The ,
5 Governor responded to Interrogatory #1 of the Third Set as 6 follows:
7 "The only expert witness that the Governor presently intends to call is 8 Jose M. Roesset." (Response at p. 4) 9 On September 2, 1983, the Governor filed its Third 10 Set of Interrogatories upon the Licensee. This was the 11 first set of interrogatories which sought identification of 12 Licensee's witnesses. Licensee responded in a timely manner 13 on September 19, 1983.
14 On September 7, 1983, this Board issued an order 15 for the reopened hearings on design quality assurance. The 16 order provided inter alia:
17 "All discovery shall close on Septem-ber 28, 1983. "
18 19 Subsequent to the pre-trial conference all parties 20 discussed the deposition schedule. Due to the number of l 21 depositions and the location of the witnesses around the 22 country, an effort was made to arrange the schedule in a 23 manner which would permit each party to depose all i 24 individuals that the party felt necessary to depose, prior l
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1 to the discovery deadline. If on September 15, 1983, a copy 2 of the deposition schedule was forwarded to the attorneys 3 for each party.
4 .As of the date of deposition schedule, i.e.
5 September 15, 1983, the only witness listed by either the 6 Governor or the Joint Intervenors was Jose M. Roesset.
7 On September 26, 1983, Licensee received the Joint 8 Intervenors' Third Supplemental Response dated September 23, 9 1983 to Licensee's First Set of Interrogatories . This 10 supplemental response identified for the first time Dr.
11 Peter Kempthorne, whom the Joint Intervenors " intend to call 12 as an expert witness."
13 On September 26, 1983, two days before the close 14 of discovery at the deposition of one of Licensee's 15 witnesses, Dr. Stanley Kaplan, counsel for the Governor 16 orally informed counsel for Licensee of his intention to 17 call Richard B. Hubbard as an expert witness, but was unable 18 to identify on what subject he would testify. Governor's 19 counsel simply stated that their prior answers to 20 interrogatories would be supplemented "in a few days."
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23 Because the Governor's schedule took all remaining
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24 deposition days and Dr. Roesset was unavailable for depositions on Monday, Wednesday and Friday outside 25 Austin, Texas, all parties stipulated his deposition would be taken September 29, 30, and if necessary, 26 October 1, 1983.
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1 On September 28, 1983, the last day of discovery, 2 during a deposition of an NRC witness and only after inquiry 3 by Licensee's counsel, counsel for the Governor indicated 4 that he intended to call another expert witness, Dr.
5 Apostolakis, and that formal notice would be filed on 6 September 28 or 29. Counsel for the Joint Intervenors also 7 indicated that they too might call another expert witness, 8 but that his identity was not yet known.
9 B. Legal Argument 10 "A party is under a duty seasonably to supplement his response with respect to 11 any question directly addressed to . . .
(ii) the identity of each person 12 expected to be called as an expert witness at the hearing, the subject 13 matter on which he is expected to testify, and the substance of his 14 testimony." (10 CFR $ 2.740(e)(1)(ii).)
15 The term seasonably is not defined in the 16 Regulations. However, Webster's New Collegiate Dictionary, 17 1977 Ed. defines seasonably as " appropriate to the time or 18 situation." By no stretch of the imagination can the 19 supplementation of interrogatories -- which were served 20 almost 90 days earlier -- two days before the close of l 21 discovery and on the last day of discovery, be described as l
22 seasonable.
23 Ordinarily, this Board's authority to impose 24 sanctions arises under 10 CFR 5 2.707. Resort to 10 CFR 25 5 2.707 for the imposition of sanctions presupposes the 26 existence of a discovery order entered following a motion to l
1 compel pursuant to 10 CFR $ 2.740. As to the identification 2 of witnesses no such order exists in this case. This 3 section is silent as to sanctions for failure to supplement 4 under 10 CFR 2.740(e)(1).
5 The instant case is analogous to situations which 6 have arisen in the federal courts in applying the sanction 7 provisions of Rule 37 Federal Rules of Civil Procedure 8 ("FRCP"). Wright &_ Miller, Federal Practice and Procedure:
9 Civil 5 2050. Rule 37 FRCP also presupposes a discovery 10 order following a motion to compel prior to imposition of 11 sanctions for failure to comply with discovery orders.
12 However, Rule 37 is similarly silent as to sanctions for 13 failure to comply with Rule 26(e)(1) supplementation 14 requirements. 2f 15 Nonetheless, in dealing with this problem the 16 federal courts have found that it is within their inherent
( 17 power to impose sanctions for failure to supplement inter-i 18 rogatories. See, Campbell Industries v. M/V Gemini, 619 19 F.2d 24 (9th Cir. 1980); Phil Crowley Steel Corporation v.
20 Macomber Incorporated, 601 F.23 342 (8th Cir. 1979). That 21 this Board has such inherent authority is without dispute.
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l 24 25 2/ It should be noted that 10 CFR 2.740(e)(1) and Rule 26(e)(1) are identical with respect to supplementation 26 of the identity of expert witnesses.
l 1 In its Statement of Policy on Conduct of Licensing 2 Procedures CLI-81-8, 13 NRC 452 (1981), the Commission 3 described this authority as follows:
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"The Commission's Rules of Practice provide the board with substantial 5 authority to regulate hearing proce- ,
dures. In the final analysis, the ac- 1 I
6 tions, consistent with applicable rules, which may be taken to conduct an effi-7 cient hearing are limited primarily by the good sense, judgment, and managerial e skills of a presiding board which is dedicated to seeing that the process 9 moves along at an expeditious pace, con-sistent with the demands of fairness.
10 Fairness to all involved in NRC's 11 adjudicatory procedures requires that every participant fulfill the obliga-12 tions imposed by and in accordance with applicable law and Commission regula-13 tions. While a board should endeavor to conduct the proceeding in a manner that 14 takes account of the special circum-stances faced by any participant, the 15 fact that a party may have personal or other obligations or possess fewer re-16 sources than others to devote to the proceeding does not relieve that party 17 of its hearing obligations. When a participant fails to meet its obliga-18 tions, a board should consider the im-position of sanctions against the of-19 fending party. A spectrum of sanctions from minor to severe is available to the i 20 boards to assist in the management of proceedings. For example, the boards 21 could warn the offending party that such conduct will not be tolerated in the 22 future, refuse to consider a filing by the offending party, deny the right to 23 cross-examine or present evidence, dis-miss one or more of the party's conten-24 tions, impose appropriate sanctions on counsel for a party, or, in severe 25 cases, dismiss the party from the pro-ceeding. In selecting a sanction, 26 boards should consider the relative im-i
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1 portance of the unmet obligation, its potential for harm to other parties or 2 the orderly conduct of the proceeding, whether its occurrence is an isolated 3 -
incident or a part of a pattern of be-havior, the importance of the safety or 4 environmental concerns raised by the party, and all of the circumstances.
5 Boards should attempt to tailor sanc-tions to mitigate the harm caused by the 6 failure of a party to fulfill its obli-gations and bring about improved future 7 compliance. At an early stage in the proceeding, a board should make all 8 parties aware of the Commission's poli-cies in this regard." 13 NRC 453-454.
9 10 After review of the Commission's criteria for the imposition 11 of sanctions, it is clear that this is a proper case for 12 sanctions.
13 1. Relative Importance Of The Unmet Obligation _
14 15 As this Board is fully aware, the hearings in this 16 matter involve many complex, technical issues. From the 17 time of the Commission's order in November 1981 it was 18 obvious that expert testimony was going to constitute a 19 major portion of all testimony presented in any contested 20 hearing.
21 Since the inception of the IDVP, the Joint 22 Intervenors have challenged the method which the IDVP chose, 23 i.e. engineering judgment vs. a purely statistical sampling 24 method, to conduct its design review. As a consequence, 25 Lincesee has directed numerous interrogatories to the Joint 26 Intervenors requesting the basis for their support of the
1 statistical method. In complete disregard for the Rules of
- 2 Discovery, the Joint Intervenors have consistently failed to 3 support their position by designating the basis for any such 4 expert opinion.
5 Depositions were painstakingly scheduled so that 6 each party would have the opportunity to examine the experts ;
7 proffered by the other parties. Now on the eve of the close 8, of discovery, the Joint Intervenors choose to disclose the 9 identity of a witness who will be the center of their attack ,
10 upon the adequacy of the IDVP. This disclosure comes at a 11 time when Licensee is precluded by the Board approved 12 schedule from examining the witness. There can be little 13 doubt that the identification of this witness should have 14 taken place prior to the formulation of the deposition 15 schedule so that Licensee would have had the opportunity to 16 examine this witness.
17 As to the Governor, assuming in the first place 18 that oral notification is sufficient to satisfy 10 CFR 19 5 2.704(e)(1), a position Licensee strenuously contests, the 20 conduct is even more egregious. Not only has the failure to 21 list Mr. - Hubbard and Dr. Apostolakis as witnesses
, 22 effectively precluded the taking of their depositions, it 23 has also been used as a shield to protect the Governor from 24 compliance with other discovery requests in this matter.
i 1 25 As this Board will recall, Licensee filed earlier 26 motions to compel to obtain information which the Gcvernor
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l 1 refused to disclose. The Governor successfully opposed 2 portions of these motions on the grounds that Mr. Hubbard 3 was a consultant and not an expert witness and therefore the 4 information sought was not discoverable. This Board upheld 5 the Governor's position and precluded production of any 6 documents prepared by Mr. Hubbard.
7 2. Harm To Licensee And The Orderly Conduct Of The Hearings e
9 There can be no doubt that the failure to supple-10 ment the interrogatories seasonably and identify key 11 witnesses has harmed the Licensee. The Licensee has been 12 precluded from taking the depositions of Mr. Hubbard, Dr.
13 Klempthorne, Dr. Apostolakis and others as yet unidentified.
14 Interrogatories have not been answered. Documents have not 15 been produced. In effect Licensee has been put in a 16 position of trial by surprise.
17 This situation will have a definite impact on the 18 orderly conduct of the hearings. First, it will greatly 19 impair Licensee's preparation of pre-filed testimony.
20 Rather than addressing a position set forth in an expert 21 deposition, Licensee will be required to speculate on that 22 position and must prepare testimony without any 23 understanding of the opposition's case. Second, by not 24 having discovered these opinions and their basis, Licensee 25 will be required to conduct examination of these witnesses 26 in a deposition format rather than as cross-examination.
1 This 'will slow down what is already conceded to be a long 2 and complicated hearing.
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- 3. A Clear Pattern Of Obstructive And Delaying Behavior 4
5 On April 21, 1983, this Board issued its order 6 reopening .he design quality assurance issue. The order 7 provided in part:
8 "We expect to proceed as promptly as possible, consistent with the demands of 9 fairnecs, in resolving the design quali-ty assurance issue now before us in the 10 reopened proceeding. All parties there-fore should be prepared to bear the 11 heavy burdens that accompany the expedi-tious litigation of an issue as complex 12 as this one. See Statement of Policy on Conduct of Licensing Proceedings, 13 CLI-81-8, 13 NRC 452, 453-454 (1981).
In addition, we emphasize to all parties 14 the importance of complying with the Rules of Practice, and caution them that 15 failure to abide by the agency's prac-tice rules will not be tolerated." At 16 5-6.
17 On July 22, 1983, Licensee requested this Board to 18 grant motions to compel which had been filed with respect to 19 its first sets of interrogatories and requests for produc-20 tion served upon the Joint Intervenors and the Governor.
l 21 Although this Board denied the oral request for a ruling the 22 Board implicitly restated its position with respect to the 23 April 21, 1983 order.
24 In its replies to the Governor's and Joint Inter-25 venors' responses to its motions to compel, Licensee pointed 26 out to this Board the continuing failure of both the
1 Governor and the Joint Intervenors to comply with legitimate 2 discovery requests. Moreover, Licensee accurately predicted 3 the conduct of the Governor with respect to the identity of 4 witnesses, As noted in Licensee's Reply of August 4,1983:
5 "In answer to Interrogatory No. 2, re-questing identification of witnesses, 6 counsel for the Governor have said that no determination had been made as of 7 that date. It is hard to imagine that with the time remaining and the com-s, plexity of. the issues involved, that such a decision has not yet been made.
9 As with other information requested, an eleventh-hour revelation will be ex-10 tremely prejudicial and burdensome to Licensee. Frankly, we find it implausi-11 ble that counsel for the Governor have not yet decided to use Mr. Hubbard and 12 Dr. Roesette [ sic] as expert witnesses in the forthcoming hearings." Reply of 13 Licensee, p. 14, fn. 7.
14 No such prediction as to the Joint Intervenors was 15 made at that time since, rather than indicating a decision 16 on who would be called, the Joint Intervenors stated that 17 they had not decided whether any one would be called, and as
- 18 far as Licensee knew, Joint Intervenors had not even 19 retained a consultant. In fact, Joint Intervenors hrte led 20 all parties to this proceeding to believe that they would 21 not call any witnesses but would ride the coattails of the 22 Governor.
l 23 Further evidence of a pattern of delay ' can be 1
24 found in the Governor's conduct with respect to the answers 25 to the second and third set of interrogatories. With full
( 26 knowledge of continuing discovery obligations the i
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1 " consultants," now witnesses, for the Governor were 2 conveniently permitted to become unavailable making the 3 Governor unable to respond to the interrogatories within the 4 time requested.
5 Rather than file a motion for an extension of time 6 when the Governor first knew it would not be able to 7 seasonably comply, the Governor waited until the day before 9 the answers to the second set of interrogatories were due to 9 request the extension. The Board and parties received the 10 request after the answers were due, thus at least in part 11 rendering the motion a fait accompli. The request asked for 12 an extension until August 31, 1983. This Board granted the 13 extension until August 26, 1983. However, the Governor was 14 unable to respond by that time and once again at the 15 eleventh hour informed the Board and the parties at the 16 prehearing conference of that fact. This Board granted a 17 further extensicn until the 31st, the date originally 18 requested by the Governor.
19 Finally, and the most serious evidence of this 20 pattern, is the identification of witnesses when discovery 21 was essentially closed and at a time when the Governor and 22 Joint Intervenors knew full well that depositions of these 23 witnesses would be impossible.
24 This obvious course of obstructive and delaying 25 conduct can lead to only one conclusion: the Governor and 26 Joint Intervenors have never had any intention and do not
1 now h' ave any intention of conducting this hearing process in 2 an orderly and expeditious manner as ordered by the Board.
3 In fact, Licensee feels secure in predicting that a motion 4 to continue the hearing dates will be the next weapon in 5 their arsenal of delay.
6 C. Sanctions 7 It is apparent that sanctions must be imposed for e this conduct. Licensee requests as a sanction that Dr.
9 Kempthorne, Mr. Hubbard, Dr. Apostolakis and any others yet 10 to be identified be precluded from testifying in this 11 hearing. Licensee believes this sanction to be both fair 12 and equitable when considered in view of the conduct of the 13 Governor and Joint Intervenors, and the extreme prejudice 14 being inflicted upon the Licensee as a result of the 15 conduct.
16 In addition, the complete disregard for this 17 Board's authority, as evidenced by this conduct, demands no l 18 less. As an alternative and by no means a diminution of the 19 merit and reasonableness of the aforementioned sanction, 20 Licensee requests this Board to permit the Licensee to 21 depose the witnesses after the filing of testimony by all 22 Parties on October 8, 1983. Due to the task of preparing
! 23 testimony and exhibits during the week of October 1-8, 24 counsel for the Licensee simply cannot prepare for the j 25 depositions prior to the week of October 10-14. In 26 addition, if Mr. Hubbard or others is to be a witness the l
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1 Governor and the Joint Intervenors must produce documents 2 and supplement answers to interrogatories prior to any such 3 deposition in order for the deposition itself to proceed in 4 an orderly manner.
5 Finally and most importantly, despite the 6 inappropriate conduct of the "Avernor and Joint Intervenors, 7 Licensee strongly urges this Board to maintain the present 8 schedule which calls for the commencement of the hearing on 9 October 24, 1983.
10 CONCLUSION 11 This Board has the inherent authority to apply 12 appropriate sanctions for failure to comply with the 13 Commission's Rules of Procedure and thus throughout the 14 discovery process the Governor and Joint Intervenors have 15 engaged in a concerted coursa of conduct to delay these 16 proceedings. The final act of delay has precluded Licensee 17 from its right to discovery in preparation for the hearings.
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4 1 This unseemly conduct should not be indirectly rewarded by 2 this Board. Accordingly, we request that the Board order
-3 sanctions against Joint Intervenors and the Governor in 4 accordance with the Commission's Rules of Practice.
5 6 Respectfully submitted, 7 ROBERT OHLBACH PHILIP A. CRANE, JR.
8 RICHARD F. LOCKE Pacific Gas and Electric Company 9 P. O. Box 7442 San Francisco, CA 94120 10 (415) 781-4211 11 ARTHUR C. GEHR Snell & Wilmer 12 3100 Valley Center Phoenix, AZ 85073 13 (602) 257-7288 14 BRUCE NORTON Norton, Burke, Berry & French, P.C.
15 P. O. Box 10569 Phoenix, AZ' 85064 26 (602) 955-2446 17 Attorneys for Pacific as and Electric Company i
18 19 .
20 B( ' Philip A.' Cr1DS, Jr.
7 21 22 DATED: September 29, 1983.
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l l
UNITED STATES OF AMERICA.
NUCLEAR REGULATORY COMMISSION
, l In the Matter of )
)
PACIFIC GAS AND ELECTRIC COMPANY ) Docket No. 50-275
) Docket No. 50-323 -
Dichlo Canyon Nuclear Power Plant, )
Units 1 and 2 -
)
)
CERTIFICATE OF SERVICE The foregoing document (s) of Pacific Gas and Electric Company has (have) been served today on the following by deposit in the United States
- anil, properly stamped and addressed
Judge John F. Wolf "
Mrs. Sandra A. Silver Chairman 1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo CA 93401 US Nuclear Regulatory Commission W2chington DC 20555 Mr. Gorden Silver 1760 Alital Street Judge Glenn O. Bright San Luis OLispo CA 93401 Atomic Safety and Licensing Board US Nuclear Regulatory Commission John Phillips, Esq. !
W2chington DC 20555 Joel Reynolds, Esq.
Center for Law in the Public Interest Judge Jerry R. Kline 10951 W. Pico Blvd. - Suite 300 Atemic Safety and Licensing Board Los Angeles CA 90064 US Nuclear Regulatory Commission Washington DC 20555 David F. Fleischaker, Esq.
P. O. Box 1178 Mrs. Elizabeth Apfelberg Oklahoma City OK 73101 c/o Betsy Umhoffer Arthur C. Gehr, Esq.
1493 Southwood Sen Luis Obispo CA 93401 Snell & Wilmer 3100 Valley Bank Center Janice E. Kerr, Esq. Phoenix AZ 85073 Public Utilities Commission Bruce Norton, Esq.
State of California Norton, Burke, Berry & French, P.C. -
5246 State Building 350 McAllister Street P. O. Box 10569 Phoenix AZ 85064 Sin Francisco CA 94102 Mrc. Raye Fleming Chairman Atomic Safety and Licensing 1920 Mattie Road Board Panel Shall Beach CA 93449 US Nuclear Regulatory Commission Washington DC 20555 -
Mr. Frederick Eissler Scsnic Shoreline Preservation [
Conference, Inc. ,
4623 More Mesa Drive
- Scnta Barbara CA 93105 i
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Chairman
- Judge Thomas S. Moore Atomic Safety and Licensing Chairman Appeal Panel Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Wnchington DC 20555 ' US Nuclear Regulatory Commission Washington DC 20555
- sseretary . .
US Nuclear Regulatory Commission
- Judge W. Reed Johnson Wachington DC 20555 Atomic Safety and Licensing .
Appeal Board Attn: Docketing and Service US Nuclear Regulatory Commission Section Washington DC 20555 LLwrence J. Chandler, Esq.
- Judge John H. Buck Hsnry J. McGurren Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board
, Office of Executive Legal Director US Nuclear Regulatory Commission Washington DC 2055S Washington DC 20555 Mr. Richard B. Hubbard Commissioner Nunzio J. Palladino MHB Technical Associates Chairman 1723 Hamilton Avenue Suite K US Nuclear Regulatory Commission San Jose CA 95125 1717 H Street NW Washington DC 20555 Mr. Carl Neiberger Talegram Tribune Commissioner Frederick M. Bernthal P. O. Box 112 US Nuclear Regulatory Commission San Luis Obispo CA 93402 1717 H Street NW Washington DC 20555 Michael J. Strumwasser, Esq.
Susan L. Durbin, Esq. Commissioner Vi;:or Gilinsky Peter H. Kaufman, Esq. US Nuclear Regulatory Commission 3580 Wilshire Blvd. Suite 800 1717 H Street NW Los Angeles CA 90010 Washington DC 20555 Maurice Axelrad, Esq. Commissioner James K. Asselstine Lowenstein, Newman, Reis, and US Nuclear Regulatory Commission l Axelrad, P.C. 1717 H Street NW 1025 Connecticut Ave. NW Washington DC 20555 Washington DC 20036 Commissioner Thomas M. Roberts l
' US Nuclear Regulatory Commission 1717 H Street NW
.::. Washington DC 20555 Date: September 29, 1983 7 Dan G,/Lubbock
- Sent via Sky Courier Network l !
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