ML20024J064
| ML20024J064 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 08/18/1994 |
| From: | Bloch P Atomic Safety and Licensing Board Panel |
| To: | AFFILIATION NOT ASSIGNED |
| References | |
| CON-#394-15599 93-671-01-OLA-3, 93-671-1-OLA-3, LBP-94-24, OLA-3, NUDOCS 9408310077 | |
| Download: ML20024J064 (7) | |
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LBP is..-24 August 18, 1994 i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD SERVED 'AUG 1919M Before Administrative Judges:
Peter B.
Blcch, Chair Dr. James H.
Carpenter Thomas D. Murphy
)
In the matter of Docket. Nos. 50-424-OLA-3 50-425-OLA-3 l
GEORGIA POWER COMPANY, et al.
Re: License Amendment (Transfer to Southern (Vogtle Electric Generating Nuclear)
Plant, Units 1 and 2)
ASLBP No. 93-671-01-OLA-3 I
MEMORANDUM AND CRDER (Depocition of'Mr. Bill Shipman)
We have decided to deny conditionally the motion of Mr.
Allen Mosbaugh-(Intervenor) to depose Mr. Bill Shipman, who is seriously ill and who has been deposed previously for 4.5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br />.
The denial shall be subject to further explanation by Georgia Power.
It is without prejudice to a future l
request for a deposition, particularly if Mr.
Shipman's health improves or if there is further explanation of the reasons why a deposition is so important that it should be l-held despite hardships for Mr. Shipman.
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v vi,
- At the Bocrd's suggestion, Intervenor filed a " Motion 1
to Compel GPC to Produce Bil Shipm*>" on August 15, 1994 (Motion).
Georgia Power filed e A sponse'to Intervenor's Motion to Compel GPC to Produce Bill Shipman," on August 16, 1994 (Response).
The Staff of the Nuclear Regulatory Commission declined to submit a filing on this issue.2 I.
The Law 10 CFR S 2.740(c) provides:
Protective order.
Upon motion '.y a party or the person from whom discovery is sought, and for good cause shown, the presiding officer may make any order.which' justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense The provision of the Federal Rules of Procedure that
]
l parallels the Nuclear Regulatory Commission's procedural
- rule, and which may be used as a helpful interpretive suggestion is:
The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that.
the burden or expense of the oronosed discovery outweiahs its likely
- benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litiaation, and the importance of the 1Georgia Power Company, et al.,
also referred to as Georgia Power.
l In response to an e-mail inquiry about whether the 2
Staff would file a
response concerning the Shipman Deposition, Staff declined to make a filing and served its response on the parties to this proceeding.
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-3 DroDosed discovery in resolvina the issues.
[ Emphasis added.]3 II.
Prior Action of the Licensing Board At the August 12 Prehearing Conference in this case, Georgia Power raised the question of whether or not Mr.
Shipman should be required to complete a deposition on August 22, two days before scheduled major surgery for liver and stomach cancer.
Georgia Power offered to make Mr.
1 i
Shipman available on August 18 -- a date unacceptable to Intervenor because its lead counsel on this issue is on vacation.'
1 During the Pre-hearing Conference the Board required
]
written filings of the concerned parties.
It also described the required filings, at Tr. 653, in this way:
[W] hat [the Licensing Board would]
need is a motion that would show why it's suffi-ciently urgent to require this deposition two days before the surgery.
If you showed a cross-examin-ation plan that was important enough, [the Board]
might be able to.
uphold it.
III.
Analysis of the Filings We find that Intervenor's Motion is woefully in-complete.
In particular, the Motion failed to discuss the benefits it is seeking to obtain during the continued deposition of Mr. Shipman.
There was no " cross-examination" 3 Federal Civil Judicial Procedure and Rules, 1994 Edition (West Publishing Company), Rule 2 6 (b) (2), pp. 106-107.
'Tr.
651-656.
-4 plan, as was suggested by the Board, and there was no discussion demonstrating that the previous deposition of this witness was conducted in a manner consistent with his I
fragile health or that the questions left to be asked are i
truly important.
Although Intervenor did say why Mr.
Shipman is an important witness, in his motion at p.
5, I
footnote 4, he did not discuss what had been accomplished in 1
the already-completed deposition session and what is lef t to be accomplished.
In
- short, Intervenor ignored the suggestion of the Board that he demonstrate, with respect to l
the requested second deposition session with Mr. Shipman, what the Federal Rules of Procedure describes as, "the importance of the proposed discovery in resolving the issues."
One aspect of the filings before us gives us pause about reaching our conclusions.
We applaud Georgia Power's truthfulness in disclosing that, "Mr. Shipman has personally stated that he will attend a deposition on August 22, if that is what the Company deems to be in its best interest."5 Under the circumstances, we are somewhat puzzled that Georgia Power's lawyers and Mr. Shipman's lawyers felt that they were authorized to oppose the deposition on grounds of hardship.
A ground that Georgia Power asserted for its 5Response at 6.
' motion is "Intervenor's apparent insensitivity to Mr.
Shipman's situation."'
This Board is prepared to establish conditions that would be responsive to Mr. Shipman's needs, including con-ducting the deposition in a convenient location or by tele-phone and limiting the total time available for the deposi-tion.
In addition, the Board's Chair could attend or be available by phone, pursuant to Mr. Shipman's wishes, to assure that unnecessary hardship does not occur.
Prior to the deposition, a transcript of the previous deposition and a cross-examination plan could be made available to the Board, so that it could assure that needless duplication or irrelevant questioning is avoided.
We infer from the motion that Mr. Shipman's counsel and Georgia Power's counsel feel that Mr. Shipman's willingness to be deposed should not be fully respected, perhaps because the lawyers perceive a hardship related to the advanced stages of his illness.
However, we will require Georgia i
Power to do one of the following: (1) file with the Board an l
affidavit discussing why Mr. Shipman's willingness to attend a deposition should not be honored by this Board, or (2) state that a deposition can be condycted under conditions that meet the criteria described by this Board.
We note that, despite Mr. Shipman's expressed wishes, whether or not
)
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' Response at 7.
- this deposition occurs does not depend on "what the Company deems to be in its best interest."'
IV.
ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is this 18th day of August, 1994, ORDERED, that:
1.
Intervenor's Motion to Compel GPC to Produce Bill Shipman, filed August 15, 1994, is denied, subject to the conditions that follow.
2.
Georgia Power Company, et al.,
shall:
(1) file with the Board an affidavit discussing why Mr. Shipman's willingness to attend a deposition should not be honored by this Board, or (2) state that Mr. Shipman will attend a deposition subject to specific conditions that are consistent with the Board's decision and are acceptable to Mr.
Shipman.
FOR THE MIC FETY AND LICE!ISING BOARD t
Peter B.
Bloch l
Chair I
Rockville, Maryland 7Response at 6.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of GEORGIA POWER COMPANY, ET AL.
Docket No.(s) 50-424/425-OLA-3 (Vogtle Electric Generating Plant, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB M&O (LBP-94-24) DTD 8/18 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Office of Commission Appellate Administrative Judge Adjudication Peter B. Bloch, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Administrative Judge Thomas D. Murphy James H. Carpenter Atomic Safety and Licensing Board 933 Green Point Drive, Oyster Point U.S. Nuclear Regulatory Commission Sunset Beach, NC 28468 Washington, DC 20555 Mitzi A. Young, Esq.
John Lamberski, Esq.
Office of the General Counsel Counsel for Georgia Power Company U.S. Nuclear Regulatory Commission Troutman Sanders Washington, DC 20555 Suite 5200, 600 Peachtree Street, N.E.
Atlanta, GA 30308 Ernest L. Blake, Jr., Esq.
Michael D. Kohn, Esq.
David R. Lewis, Esq.
Stephen M. Kohn, Esq.
Shaw, Pittman, Potts & Trowbridge Kohn, Kohn & Colapinto, P. C.
2300 N Street, N.W.
517 Florida Avenue, N.W.
Washington, DC 20037 Washington, DC 20001
O Docket No.(s)50-424/425-OLA-3 LB M&O (LBP-94-24) DTD 8/18 C. K.
McCoy V. President Nuclear, Vogtle Project Georgia Power Company Post Office Box 1295 Birmingham, AL 35201 Dated at Rockville, Md. this
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6 19 day of August 1994 Js!
DTT)ceofth'e'SecretaryoftheCommission l
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