ML20035E788
| ML20035E788 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 04/15/1993 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#293-13909 OLA-3, NUDOCS 9304190247 | |
| Download: ML20035E788 (35) | |
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OFFICIAL TRANSCRIPT OF PROCEEDINGS O
9 I
I Y
I geng:
Nuclear Regulatory Commission Georgia Power Company, et al, Vogtle
Title:
Electric cenerating station (units 1 and 2)
Docket No.
50-424-OLA-3 and 50-425-OLA-3 b
IQCATION:
Bethesda, Maryland j
l DATE:
Thursday, April 15, 1993 117 - 151 pg l
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NUCLEAR REGULATORY COMMISSION 2
ATOMIC SAFETY AND LICENSING BOARD 3
4
X 5
In the Matter of:
Docket No. 50-424-OLA-3 6
GEORGIA POWER COMPANY, et al 50-425-OLA-3
'I 7
VOGTLE ELECTRIC GENERATING 8
STATION, (UNITS 1 AND 2)
x 9
10 11 West Tower 12 Room 426 13 4350 East-West Highway
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I 14 Bethesda, MD l
0 I
15 Thursday, April 15, 1993 l
t 16 17 The above-entitled matter commenced at 1:14 p.m.
3 l
18 I
19 BEFORE:
Peter B.
Bloch, Board Chairman 20 Thomas D. Murphy, Administrative Judge 21 James Carpenter, Administrative Judge 22 23 1
24 25 ANN RILEY & ASSOCIATES, LTD.
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On Behalf of the Licensee:
l 2
ERNEST BLAKE, ESQ.
3 Shaw, Pittman, Potts & Trowbridge 4
2300 N Street, NW 5
Washington, D.C.
20037 6
7 JOHN LAMBERSKI, ESQ.
8
-Troutman Sanders 9
Nations Bank Plaza
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10 Suite 5200 11 600 Peachtree Street, N.E.
I 12 Atlanta, GA 30308 I
I 13 i
14 On-Behalf of the Intervenor:
f O
i 15 MICHAEL D.
KOHN, ESO.
l l
16 Kohn, Kohn & Colapinto-i 17 517 Florida Avenue, NE I
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18 Washington, D.C.
20001 l
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19 20 On Behalf of the NRC Staff:
t 21 EDWIN REIS, ESQ I
i 22 CHARLES A. BARTH, ESQ.
l 23 Office of General Counsel 24 Nuclear Regulatory Commission l
25 Washington, D.C.
20555 j
i i
()
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119 l
1 PROCEEDINGS l
2
[1:14 p.m.]
3 JUDGE BLOCH:
This is Judge Bloch for the Atomic 4
Safety and Licensing Board responsible for the license f
t 5
amendment case involving the transfer of operating authority 6
for the Vogtle Electric Generating Plant from Georgia Power I
I i
7 Company, et al to Southern Nuclear.
The purpose of today's 8
conference is to discuss the scheduling of this case, and I'd t
9 like to ask the parties to identify themselves.
I'd like to 10 say that I'm here today with Administrative Judge Tom Murphy l
l 11 and Administrative Judge Jim Carpenter.
I'd like the parties
{
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l 12 to identify themselves for the record, beginning with the I
i 13 Intervenor.
j 14 MR. KOHN:
Good afternoon.
This is Michael Kohn f
O 15 representing Alan Mosbaugh.
j l
16 JUDGE BLOCH:
And now Georgia Power.
i i
17 MR. BLAKE:
Judge Block, this is Ernie Blake.
I'm 18 here with Mr. Lamberski at Troutman Sanders in Atlanta, j
i 19 MR. BAILEY:
This is Jim Bailey.
I'm with Southern f
20 Nuclear in Birmingham, i
21 JUDGE BLOCH:
And the staff?
f 22 MR. REIS:
This is Ed Reiss for the staff.
With me j
f 23 is the attorney on the case, Charles Barth, and Mr. Dave 24 Matthews of the technical staff.
l 25 JUDGE BLOCH:
What I'd like to propose is that we ANN RILEY & ASSOCIATES, LTD.
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take ten minutes per party, unless we should find later that f
l 2
there's a need for more, and that we begin with Georgia Power.
3 Are there any objections to this way of proceeding?
4 MR. BLAKE:
Judge Bloch, I'm not sure what the --
i i
5 is the ten minutes to address all of the questions that the l
6 Board has proposed?
7 JUDGE BLOCH:
That's my proposal.
Do you need more 8
time?
9 MR. BLAKE:
I'd like to divvy it up, if I could, and 3
i 10 I'd like to start by proposing a couple of -- put a couple of j
1 11 topics on the table, which I think would help us in discussing l
12 the schedule and --
j i
13 JUDGE BLOCH:
Stop one second.
It's Mr. Blake.
j l
14 MR. BLAKE:
Say that again, sir?
l 15 JUDGE BLOCH:
I had to tell the reporter who was 16 speaking.
Please continue.
f 17 MR. BLAKE:
Okay.
I would like to at the outset 18 discuss, so that we all are sure when we talk about schedule 19 and what can go forward and what may run into problems because 20 of the ongoing OI investigation, and that we talk about, to 21 insure that we understand what the scope of the contention is,
]
22 for example.
I think I know, but I'd like to confirm it.
23 JUDGE BLOCH:
Okay, and would you rather that the I
'I 24 Board speak to that, or do you want to have the parties argue 25 about it first?
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1 MR. BLAKE:
No, I'd just as soon give our position, l
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2 and there may not be an argument.
I just thought I'd know 3
that before we go on then to talk about discovery.
I believe j
i 4
that the scope, in accordance with Commission practice, is the I
i 5
bases which have been enumerated by in this case Mr. Mosbaugh, 6
or Mr. Kohn for Mr. Mosbaugh, and here, we're really talking 7
about two areas as providing the basis for the consolidated 8
contention articulated by the Board. Those two areas are one, 9
the licensee of that
- report, the
- LER, and subsequent I
10 statements made about that LER by certain company officials, 11 and second, the alleged illegal transfer of the license 12 earlier that has been authorized by the NRC.
I think those
{
I l
13 are the two bases for the contention and that, therefore, is I
1 l
-t 14 the scope of the contention.
l 15 JUDGE BLOCH:
I don't have the book before me, but
[
l 16 I can have it in a moment.
In LBP-93-01, at-the bottom of l
l 17 page 20 and the top of page 21, the Licensing Board in Diablo 18 Canyon, Judge Bechhofer, Chairman, mentions its conclusion j
l 19 that the bases for a contention are what the party knows at 20 the time that the contention is filed, and that the scope of l
21 the case is not strictly limited to that.
Now, I'll comment l
l 22 further that it is the job of the Licensing Board with respect j
f 23 to specific discovery contests to assure that there's no pure t
1 24 fishing expeditions going on, either.
So, there is a
j 25 limitation to the scope of discovery, but it's not strictly ANN RILEY & ASSOCIATES, LTD.
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limited to what is known at the time that the contention is 2
filed.
3 MR. KOHN:
Judge Bloch, this is Michael Kohn.
I'd 4
also like to indicate that there were official allegations 5
contained in the 2.206 petition on factual matters, and I 6
would suggest that those_would probably be the focus of some 7
discovery as well.
8 MR.
REIS:
Your Honor, the staff would object.
9 2.206 Is different.
We don't mind the general subject matter 10 coming in that he talked about before, but if he's going to 11 come and say at this date that there is another document where 12 there was a misrepresentation to the staff, that's outside the 13 scope of the bases, and he would have to seek leave late to 14 amend his contentions late.
15 We agree that what was said before in the statement 16 in his original petition could well be there, and he could 17 flesh it out-through discovery.
To seek to find other bases 18 for the contentions and what was set forth, we feel that is 19 way beyond the scope of what is permitted in the proceedings.
20 That would be a totally new, separate matter.
21 JUDGE BLOCH:
What I hear, Mr. Reis, is that either 22 I didn't speak clearly or you didn't hear me, because what I 23 said was that the contention is what is admitted, not the 24 bases.
- Now, if you need further clarification, I would 25 suggest the way to do that is through a motion.
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MR. REIS:
All right, Your Honor, I think that's l
2 contrary to general precedent of both the Commission and the 2
- i i
3 Board, and we can go back to the Peachbottom case some time 3
l 4
ago.
The Intervenor is obligated at the beginning to set l
5 forth the basis.
Without that, we don't know what we're j
i 6
proceeding on, and the whole basis of the Peachbottom case, i
i 7
Your Honor, was that the parties be alerted as to what they j
8 have to meet in the hearing, not particular evidence, but what r
9 the subject matters are, and --
1 10 JUDGE BLOCH:
Mr. Reis, I have ruled, and I don't l
11 want to have further argument on it right now.
12 MR. REIS:
Okay.
3 1
i
)
13 MR. BLAKE:
Judge Bloch, this is Mr. Blake.
'It 3'
t 14 sounds to me like from the discussion to date that it may not r
i 15 be simply a matter of my confirming what I thought, and maybe i
16 this will have to come through discovery and motions 17 associated with discovery.
18 JUDGE BLOCH: If there is something wholly unrelated i
19 to the subject matter before us and not suggested by what's i
20 already introduced, then it may be beyond the contention, but i
21 I think we really should handle it on the basis of specific 22 discovery requests, i
23 MR. BLAKE:
All right, sir.
24 JUDGE BLOCH: If the parties disagree, I did suggest i
25 that you could file a motion-for clarification.
Now, Mr.
l t
i r
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l 1
Blake, you began outlining what you'd like to have be the way 2
of proceeding.
Is there more you wanted to say?
j 3
MR. BLAKE:
No, I'm prepared to talk about what -
l r
4
- the responses to each of the questions, Your Honor.
f j
5 JUDGE BLOCH:
Okay now, I thought, because of the i
6 interrelationship among the questions, it would be easier for 7
the parties to address all of them at once.
I heard you say L
I 8
that you don't think so.
l i
9 MR. BLAKE:
Well, I wanted, at least I thought we 10 could talk about scope, and if I knew for sure what the' scope l
j 11 were and we had agreement on it, then I thought it would l
j 12 better define the responses to each of the questions about j
13 discovery schedules.
l 14 JUDGE BLOCH:
Okay, so would ten minutes per party 1
7 15 be sufficient for you at this point on the four questions that-I 16 were raised?
17 MR. BLAKE:
Yes, it would.
Can I ask one other 18 preliminary question?
f f
19 JDDGE BLOCH:
Sure.
20 MR. BLAKE:
That is, if this proceeding comes back l
72 to you, Your Honor, by referral from the Commissioners t
22 following our request for stay pending the outcome of our l
I 23 appeal to the Commission --
l i
24 JUDGE BLOCH:
Yes.
-25 MR. BLAKE:
-- we still, of course, don't have a i
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ruling on that stay request.
2 JUDGE BLOCH:
I was hoping that you'd address l
1 I
3 whether or not it was still being pressed given the change in i
l 4
circumstances.
I I
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MR. BLAKE:
All right, I will address that right
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6 now, if I might.
I 1
7 JUDGE BLOCH: Okay. Now, what I'd rather do is have I
I 8
all the arguments together, though.
If you want to make it 9
15 minutes instead of 10, that would be okay with me.
i j
10 MR. BLAKE:
No, I really haven't timed it, Your i
i 11 Honor, but I think 10 minutes would be.enough for me.
l 12 JUDGE BLOCH:
Okay.
So, is there any objection to 13 the order, being first Georgia Power and then the Intervenor, t
14 and then the Staff?
15 MR. KOHN:
No objection.
l 16 MR. REIS:
No objection.
i 17 JUDGE BLOCH:
Okay, so let us begin now with Mr.
i i
18 Blake for Georgia Power.
I 19 MR. BLAKE:
Your Honor, let me start by indicating
[
I i
20 with respect to our stay on appeal that we believe that a stay I
t 2
21 still would be in order because we don't think very much time i
22 is involved.
We think that this proceeding moving forward on j
j 23 discovery will present a substantial distraction to Georgia l
24 Power, both energy, money and management resources, in order l
[
25 to -- because of the nature of the questions that are ANN RILEY & ASSOCIATES, LTD.
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involved, and because of the subject matter.
Were it a case 2
that involved numbers of pumps or numbers of valves or other 3
purely technical subjects, it might very well not be that I.
l i
4 would make such a request, particularly now given the fact i
1 5
that the Department of Justice investigation is behind us'and
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we don't have the arguments that we earlier advanced.
f i
7 JUDGE BLOCH:
- Now, Mr.
- Blake, if I understand j
i 8
correctly, the effect of the stay would be to stop the other i
9 parties and yourself from filing discovery requests.
It would 10 involve any specific discovery since none's been requested 11 yet.
Are you arguing that the stay is needed primarily 12 because of the disruption that your preparing discovery would 13 involve?
t
[
14 MR.
BLAKE:
That's
- correct, preparing and j
O 15 responding, not just the questions but responding, l
16 particularly given the subject. matter, j
17 JUDGE BLOCH:
Now, of course, the responding isn't i
18 ripe yet because there are no requests for anything.
19 MR.
BLAKE:
That's right, Your Honor, but I'm 20 guessing that we'll have some quickly and if we could -- if j
21 we have such a ruling now, we simply would avoid the necessity 22 and, frankly, we're still hopeful that our appeal will come 23 out the way that we believe it should.
j 24 JUDGE BLOCH:
And the stay you ' re asking for is 25 solely until the decision on the appeal to the Commission is ANN RILEY & ASSOCIATES, LTD.
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determined?
i 2
MR. BLAKE:
That's right, that's exactly right.
3 That's all we're esking for.
We don't think it will be an
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4 extended period of time because there are not a lot of issues 5
in front of the Commission.
The Commission has had our appeal 6
f or some time.
It got the last three about the 20th of ' March, s
7 so it's had it already in front of it for awhile.
It's
)
8 familiar generally with the issues by virtue of the fact that 9
it also has pending in front of it the 2.206, and referrals
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10 to Justice also get a certain amount of Commission looks.
So, 11 these are not new topics to the Commission.
l 12 JUDGE BLOCH:
How would you feel if we granted the j
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13 stay until April 30?
i 14 MR. BLAKE:
I believe that that might well provide l
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15 suf ficient time, Your Honor. We asked Mr. Reis whether or not
}
16 he had a way of just determining from the Commission how long i
17 it might take for them to decide this-appeal.
He said that t
l 18 they didn't do that kind of thing, and so we're a little at 19 a loss to know exactly whether I'm speaking out of turn when 20 I say I don't think it will take them that long, but I should l
l 21 think April 30 may allow another development which would be j
i 22 helpful to the Commission and may even be helpful to this j
23 Board, and that is, we remain both hopeful that the staff will
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24 issue a partial 2.206 that would cover items other than those 25 that are currently under OI t
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1 OI's investigation, that is the CER and subsequent i
2 statements related to the LER, specifically, we're hopeful 3
that the staff will issue a determination covering the illegal
[
4 transfer of the license.
If it did and if it, again, were i
5 what we hope it is, that might very well be helpful to the.
6 Commission, and I submit, Your Honor, it might have even made 7
a difference in the Board's initial determination to allow a 8
contention in this proceeding.
I think that was an important f
i 9
ingredient in this proceeding, and the unfortunate posture of l
r 10 the staff with the ongoing Department of Justice investigation f
i 11 and therefore, inability to speak at that point.
Were they i
12 now to come and say there hadn't been an illegal transfer'.
j 13 In other words, it couldn't be the validation of something 14 improper which had already taken place, and all of the things '
15 that we talked about the last prehearing conference.
16 JUDGE BLOCH:
So, are you arguing that there be some f
17 binding effect of the 2.206?
18 MR. BLAKE:
No, no, not at all.
19 JUDGE BLOCH:
Just suggesting?
l 20 MR. BLAKE:
But I'm suggesting that had the staff 21 been able to say at the prehearing conference that they had i
r 22 looked into that matter and there would be no illegal transfer l
23 in their mind, I should think it might.have been a different i
24 day.
That's what I mean.
It might very well have a certain i
t 25 impact on the Commission now, on the appeal.
l t
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1 JUDGE BLOCH:
Okay, you have about five minutes 2
more.
+
3 MR. BLAKE: The other topics are what discovery date-i 4
could occur without interfering with the continuing NRC 5
investigation.
I think, as I indicated - in the. beginning, 6
there are two topics I'm going to address, those related to 7
the~ illegal transfer and those related in our ongoing NRC 8
investigation or the LER and statements related to it..
i l
9 With regard to the OI investigations and ongoing l
10 topics there, I don't believe any discovery should go forward 11 unless it can go forward on all parties.
I think it is, at I
l l
12 a minimum, only a document discovery should go forward,
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t 13 because I think it is unfair to put specifically Georgia' Power t
i 14 employees to respond to interrogatories or, indeed, to react j
O i
15 in depositions without having the ability to refresh their i
l 16 memory f7 m tape recordings of events at the time or i
i 17 statements and other items which the staff now holds but we j
i 18 can't get a hold of until the investigation is complete.
I
-l 19 don't think it's appropriate.
I don't think it's fair to ask l
r l
20 these people to do it.
It doesn't go to documents.
We can f
t l
21 start exchanging documents.
22 JUDGE BLOCH: I assume they've been deposed already, j
23 haven't they?
i 24 MR. BLAKE:
Not to my knowledge, Your Honor.
I 25 JUDGE BLOCH:
By the investigators?
i I
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1 MR. BLAKE:
Not to my knowledge?
2 MR. REIS:
No, Your Honor, they haven't.
i 3
JUDGE BLOCH:
Oh, that's interesting.
Are you also
(
4 sure you can't get the tapes from the Intervenors?
i 5
MR. BLAKE:
To my knowledge, the Intervenor doesn't t
6 have the tapes.
He provided them all to the NRC for his own i
2 7
purposes.
(
j 8
JUDGE BLOCH:
And he kept no copies?
l 9
MR.
BLAKE:
I'd be happy to have you ask that i
10 question, Your Honor.
l 11 JUDGE BLOCH:
I'm a little surprised you-haven't.
[
?
12 MR. BLAKE:
We have, and we think we got the answer l
13 that they don't have them.
14 JUDGE BLOCH:
Okay.
All right, so they have not i
15 been required to -- they have not been asked to respond on the i
16 record by the investigators, which of course they could do, l
17 in which case there would be no access to any of the other 18 materials.
19 MR. BLAKE:
I'm not really trying to argue what's
.i 20 appropriate in the context of the investigation, but only in f
21 this proceeding.
s 22 JUDGE BLOCH:
Well, I'm trying to see what their j
t 23 posture is.
Why should they be better off in this proceeding l
24 than in the investigation itself, since the investigators j
25 could do what you say we shouldn't do?
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1 f
1 MR. BLAKE:
I think that this ought to be an even j
2 playing
- field, and it's not clear to me that in all 1
3 investigations, either administrative or criminal, that it l
4 necessary is in the beginning investigative stage.
I believe 5
here all parties should be on equal footing.
I 6
JUDGE BLOCH:
Okay.
Do you have any further j
i 7
argument?
8 MR. BLAKE:
Yes, I do.
How much time do.I have, j
i 9
Your Honor?
10 JUDGE BLOCH:
About two minutes.
.Do you have any 1
11 notion as to how much time you would delay the proceeding for 12 the investigation?
Would that be unlimited?
l 13 MR.
BLAKE:
Your
- Honor, I
don't think it's j
14 unlimited.
If I read the staf f 's response, they said it would 15 only be several months, but with respect to that, I wouldn't 16 stop all discovery from going forward for the length of the
[
17 time that the investigation goes forward.
I would, for i
18 example, allow discovery to proceed on other issues.
i 19 JUDGE BLOCH:
Okay.
{
i 20 MR. BLAKE:
I particularly would allow document t
i 21 discovery to go forward because it doesn't put people in the
{
22 same box, the same unfairness box that I think they're in if j
23 they don't have access, if everybody doesn't have access to 24 the same documents when they're being asked for their personal 25 views or their personal recollections.
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1 JUDGE BLOCH:
Okay.
2 MR. BLAKE:
Let-me just have five seconds, Your 3
Honor.
4 JUDGE BLOCH:
Sure.
l 5
[Brief pause.]
i 6
MR. BLAKE:
Your Honor, just to --
7 JUDGE BLOCH:
Mr. Blake, I'll extend your time, but 8
I want to ask a question.
The question is the following.
f 9
Obviously, if your people are deposed before they have other i
i 10 documents and tapes, it would be understandable if, given the i
I 11 long period of time between the _ taping or the other documents, i
'I 12 there were some discrepancies between what they would say and 13 what those other documents might say.
That's kind of normal,
[
14 human behavior, but wouldn't it also contribute to a greater I
15 knowledge of the truth if they were asked to do that without i
16 first reviewing those other documents?
i 17 MR. BLAKE:
I'd be happy to try to breach such a i
i 18 topic.
My immediate reaction is I don't think so.
I don't 19 think that necessarily would achieve that end, Your Honor.
20 JUDGE BLOCH: Do you have anything more to say about t
21 that orally, or is that just something that you need to write l
22 a brief on?
23 MR. BLAKE:
No, that's my initial reaction I'd be 24 happy to look at what scholars in the field or psychologists 25 or others have had to say about it, and that's what I meant i
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by trying to provide additional information.
I don't think 2
so, myself.
3 JUDGE BLOCH:
Okay, would you'like to finish your.
4 argument?
5 MR. BLAKE:
Yes, sir.
I want to emphasize that all 6
of these documents that we're talking about, that I've talked 7
about, that I think we ought to have in front of us' before any 8
discovery of individuals, that is, interrogatories or 9
depositions, goes
- forward, will-be necessary,- will be 10 essential, to a determination in this proceeding.
Therefore, 11 the questions are do we go forward now without these people 12 having them initially and then have a second round later on 13 when they become available, or do we just go on with any 14 document exchanges now and then once all of the documents have l
15 been exchanged, go on and have one round of interrogatories l
l 16 and one round of depositions when everybody is on the same i
17 level playing field.
The second item that I would --
18 JUDGE BLOCH:
Mr. Blake, who would you think would l
19 have to have the second deposition?
I assume it would only 20 be with respect to a few inconsistencies that may have 21 occurred for people working for Georgia Power.
You wouldn't 22 have to be redeposing Mr. Mosbaugh, you don't suppose, do you?
23 MR. BLAKE:
Well, I expect that Mr. Mosbaugh, once 24 I have a copy, which I believe the NRC has, of some 76 tapes 25 which relate to these events which we've never seen, and I ANN RILEY & ASSOCIATES, LTD.
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1 have copies of Mr. Mosbaugh's statements which have been given l
2 to OI, I think I very much would want to depose him after i
3 that.
It might be that I wouldn't want to, but I'd certainly l
f 4
have to tell you that I expect to.
5 JUDGE BLOCH: That clarifies that. All right. Have j
i l
6 you completed?
7 MR. BLAKE : There 's one other point, Your Honor,.and 8
I can't remember for Mr. Lamberski.
John?
Oh, I-know what 9
the other point is, Your Honor, Just to alert you that no 3
10 matter what we go forward with here on discovery, I think i
11 there's a critical past with regard to the documents or the l
12 tapes that I simply want to alert the Board to because l-13 something might be able to be done about it no matter what f
t i
14 your ruling is on discovery from here on out.
l 15 As I mentioned before, the staff I believe had some 16 76 tapes -- the staff I've used probably wrongly.
I believe I
l 17 OI has some 76 tapes, each of which could be two hours in 18 length, and I don't know whether they've ever been transcribed f
l i
l 19 or really verified in any way, but the length of time, I can 20 tell you, from Georgia Power's side who has a number of other 21 tapes that they had prior access to, and they've gone through l
22 this process, it is an enormous undertaking to understand what l
b 23 is said on those tapes, to transcribe them, to verify them, j
i 24 and to wind up with a transcript which could be used in an l
25 evidentiary way and shared between parties, as I think will i
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be necessary in this proceeding.
2 So, my hint-is if we could get started on that if 3
it hasn't already been done, no matter what you do on-4 discovery, because I think that may well be the months and 5
months that it will take to accomplish.
It may well be a 6
critical path of discovery in this proceeding.
So, it was 7
just that, Your Honor, because I wasn't sure that you'd be i
8 aware of that.
6 9
JUDGE BLOCH:
I'm not sure exactly what you're i
10 saying, but I think you're requesting access to whatever tapes 11 you can get immediately.
l 12 MR. BLAKE:
That was more than I had actually the 13 guts to ask for.
f 14 JUDGE BLOCH:
Well, I assume that some_of them may 15 not be relevant to the remaining single matter under
,'I 16 investigation, so you might be able to --
17 MR. BLAKE:
We assume as well, and certain~f if f
18 discovery goes forward for documents and for materials like l
l 19 this, that will be one of our first requests, will be to get 20 as many of those as we can.
I was really hopeful, though, f
21 that even without, that you would consider asking the staff j
l 22 or OI to get going, recognizing that the most sensitive tapes 23 may be the key as to some of the key documents in this 24 proceeding in the end, and therefore the idea that they could
[
i f
l 25 get them into workable form for all of the parties, even now,
~i i
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might be helpful in the end.
2 JUDGE BLOCH:
Okay.
Mr. Kohn?
3 MR. KOHN:
Thank you, Your Honor.
I'd like to 4
address -- I'll try to address it in the same order that --
5 6
JUDGE BLOCH:
If you could speak up, that will be 7
helpful.
8 MR. KOHN:
Sure.
I'11 try to address it basically 9
in the same order as the discussions unfolded.
First, with 10 respect to the stay, we oppose the stay.
These allegations 11 surfaced in September of 1990 and were made known to the NRC 12 in June of 1990 when Mr. Mosbaugh began providing statements 13 under oath, I believe, to the NRC OI.
It 's now going on three 14 years.
I think it's time that the individuals cho have 15 relevant information go forward and the deposition process 16 begin.
With respect to the documents, I truly believe that 17 the ability of a witness to testify on the basis of his 18 recollection and belief would be wholly compromised by a i
19 witness testifying on the basis of documentation.
There's no i
i 20 way at that point of knowing whether the witness is 21 remembering the documents he's reviewed or his best 22 recollection of the event, and I would be very disturbed by 23 allowing the document production to go forward.
I think that 24 would do an unfair justice on the ability of the parties to 25 accurately state to the best of their knowledge and belief of ANN RILEY & ASSOCIATES, LTD.
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the facts.
2
- Also, it's my understanding that Georgia Power 3
Company has prepared white papers covering the key events and 4
that that was submitted to the NRC Office of Investigations, 5
as well as large responses to the 2.206
- petition, and 6
therefore, as a good document exists already in the possession 7
of Georgia Power Company to refresh their witnesses as to 8
their prior statements and what they all said together in the I
9 past.
What they're looking for is documentation so they can 10 begin reconstructing potentially their story to comport with l
11 other documentation that is not already in their possession, l
12 and I think that would just be an unfair advantage.
i i
13 JUDGE BLOCH: Mr. Kohn, what about the argument that i
14 Mr..Mosbaugh already knows about those tapes, so he has the 15 ability if he wanted to to tailor his testimony. Why wouldn' t 16 it be an uneven playing field?
17 MR. KOHN:
It would be uneven simply because Mr.
f 18 Mosbaugh's provided testimony in detail to NRC Office of 19 Investigations without the tapes, without playing the tapes I
20 during those meetings, and therefore, there is a specific 21 statement as to what his knowledge is.
The tapes are not 22 being -- I mean, if the tapes are going to be turned over, 23 then at that point, I would say, obviously, once the licensee i
24 gets copies of whatever documentation, they can use them to
[
25 prepare their case in whatever manner they feel is ANN RILEY & ASSOCIATES,_LTD.
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1 appropriate.
What we're talking about now is staying-the 2
proceeding to staying depositions to allow document 3
production to go forward.
I think that's just an unfair --
l 4
I mean, if Mr. Mosbaugh has an advantage because he has the t
5 ability to listen to the tapes, the licensee has a much 6
greater advantage in other areas.
They have the resources to i
7 make transcripts of the tapes.
We would never have such a 8
resource.
They would have resources to engage in thousands i
I 9
of things that we couldn't even think about doing.
I j
10 So, if there is one avenue that Mr. Mosbaugh has an 11 advantage, it's just part of the playing field we're playing j
i 12 on, and-I think that what they're seeking is to remove all 13 advantages and just turn over all documentation and af ter the i
i 14 utility has the ability to go through it and reconstruct their l
l I
i 15 case, and go forward and present their best case. That 's what i
16 you do at the time of the trial.
It's not what you do in
[
l 17 discovery.
18 JUDGE BLOCH:
And are you willing to go through 19 stages where you might have to have people redeposed a second I
20 time?
21 MR. KOHN:
Absolutely.
l l
22 JUDGE BLOCH:
And how soon would you be prepared to 23 do the depositions that you might request?
j j
24 MR.
KOHN:
We're prepared to go forward with 25 depositions commencing the week of April 25.
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JUDGE BLOCH:
How would you feel if the depositions 2
were to start a week after that so that there would be=a 3
chance for the Commission to decide the appeal?
Just one 4
week's delay?
5 MR. KOHN:
I would suggest that the next best time 6
to commence would be three weeks af ter that, starting the week j
7 of May 23, I think.
I may have the week of the 17th open, 8
actually.
I think, actually, the week of May 17th.
j 2
9 JUDGE BLOCH:
Okay.
.Are there any other points 10 you'd like to make?
11 MR. KOHN:
Let me just look at my notes quickly.
I 12 JUDGE BLOCH:
There's about four minutes of your i
13 regular time left and about seven minutes to equality.
l I
14
[Short Pause.]
l 15 JUDGE BLOCH:
No, nine minutes to equality.
16 MR. KOHN:
Well, I think that covers most of what l
)
17 I was looking to cover and when we would like to see the i
18 discovery begin.
I think-the fact that NRC staff and NRC OI
~
-1 19 has been -- has not used the tapes to their best advantage by l
20 taking statements, apparently not taking statements of the l
21 other witnesses, it just seems to me-that a quick resolution i
22 of this matter should go forward.
It's been pending for going 23 on three years, and it's time to get to the truth.
24 JUDGE BLOCH:
Okay, thank you.
Mr. Reis?
i 25 MR.
REIS:
Mr.
- Chairman, first of all, let me j
l ANN RILEY & ASSOCIATES, LTD.
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explain why the OI staff, which is part of the NRC staff.
OI 2
is under Mr. Taylor, who is the Executive Director, and-is 3
considered part of the staff.
He did not go forward because 4
Justice was going forward, and he didn't want to -- under our 5
arrangements with the Justice, when they' re going forward, we -
6 do not.
7 Secondly, we don't know the date that the Commission 8
will decide appeals.
Judging myself by past actions of the 9
Commission and how long they've had things under submission, 10 I would not feel sanguine that they will decide something by-
]
11 the end of April or the end of May.
They might, they might l
12 not.
I really don't know, and being a separated staff, I 13 can't ask.
14 JUDGE BLOCH:
Is your point that it wouldn't even g
J 15 be helpful to them to have until the end of April?
d i
16 MR. REIS:
I have no idea is my point, and I have 17 to be frank on that.
I don ' t know.
It might be very helpful, 18 and it might not.
I don't know what the Commission's schedule 19
-- where things are in the Office of Commission Adjudication.
20 JUDGE BLOCH:
Okay.
Can you answer some --
21 MR. REIS:
I'm separated staff.
I say hello to them a
22 in the hall, but I don't talk to them.
23 JUDGE BLOCH:
Can you give Mr. Blake any answers 24 about whether some of the tapes are available or whether the I
25 transcripts of some of the tapes might be available?
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1 MR. REIS:
No, they're not available.
I can tell 1
2 you right now that they are not available.
4 3
JUDGE BLOCH:
None of them?
i 4
4 MR.
REIS:
None of them.
The Office of
]
5 Investigation feels that they are still using~them in their 1
\\
j 6
investigation and are not about to release them. However, let i
7 me say this, we --
a 8
JUDGE BLOCH: Do they know that they're all relevant
)
9 to the one remaining question?
f d
i i
10 MR. REIS:
Excuse me, Your Honor?
i 11 JUDGE BLOCH:
They're all relevant, therefore, in l
)
12 the opinion of OI, to the question --
l s
13 MR. REIS:
I think the best way to go forward, and 4
14 we can review them at that time, is to have specific. requests I
15 for specific documents, like tapes, made under 720 or 744 and 16 go forward with the under the regulations of the Commission.
[
7
(
o i
17 Commission regulations provide for these things, and to go 18 forward with discovery now and have these things looked at and
?
i 19 a determination of what can be released and what cannot be 20 released would be best.
21 JUDGE BLOCH:
And do you know whether transcripts
]
I i
22 have been made of any of the tapes?
23 MR. REIS:
I believe transcripts have been made of 24 some of the tapes.
j
)
25 JUDGE BLOCH:
Some of the tapes.
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MR. REIS:
Maybe all of the tapes.
2 JUDGE BLOCH:
And do you know what the position.is 3
of OI with respect to a request by the person who furnished 4
the tapes to have copies of them?. Would that be covered by 5
the policy, or would Mr. Mosbaugh be entitled to copies?-
6 MR. REIS: We don't believe we would give them back.
7 Once Mr.
Mosbaugh has given them to us, they're in our 8
possession, and we are not about to give them back. We really 9
don't know, and I haven't heard Mr. Kohn directly address the 10 question of whether Mr. Mosbaugh has retained copies of all 11 or any of the tapes.
12 JUDGE BLOCH:
Well, let's interrupt for a moment.
13 I do want to ask Mr. Kohn that.
Do you know the answer to 14 that question, Mr, Kohn?
15 MR. KOHN: Your Honor, it's my current understanding 16 that the tapes in the possession of Mr. Mosbaugh are in the 17 hands of a Congressional committee.
I'll have to --
l 18 JUDGE BLOCH:
That sounds like a bit of a paradox.
l l
t l
19 If they're in the hands of a Congressional committee, they're 20 not in his hands, are they?
i 21 MR. KOHN:
No.
I'11 have to --
l 22 JUDGE BLOCH:
Unless he could get them back easily.
5 23 MR. KOHN:
I can ask and I can see what we can do, 24 but I don't have a definitive answer other than that at this f
3 25 time.
I would have to see what the committee was up to and l
[
l ANN RILEY & ASSOCIATES, LTD.
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1 see what their need of the information was and whether they're 2
agreeable to turning them back.
3 MR. REIS:
Mr. Chairman, this is Mr. Reis again.
4 As you are aware, under the regulations governing discovery i
5 against the staff, the staff has no obligation to make any l
6 documents discoverable that are discoverable from another 7
source.
i 8
JUDGE BLOCH:
That sounds like a very complicated 9
question if it's in the hands of a Congressional committee, 10 isn't it?
11 MR.
REIS:
- Well, we'11 cross that when we see 12 whether he can get them back, but what I'm saying is that if 13 Mr. Mosbaugh has tapes and Mr. Blake asks me for the tapes and 14 we direct him to Mr. Mosbaugh, that will be the end of it.
15 JUDGE BLOCH:
That's assuming he can get them from 16 Mr. Mosbaugh.
17 MR. REIS:
Well, presuming Mr. Mosbaugh has them in 18 his possession.
Obviously, if a Congressional committee has 19 them and will not return them to him, then he doesn't have 20 them in the sense of discovery, at least in the sense of 21 discovery.
I don' t think we ' re talking about legal possession 22 and who owns at that time, but for the purpose of discovery, 23 he will not have to make them available because he will have 24 a legal excuse not to produce them.
25 JUDGE BLOCH:
Okay.
Could you continue, Mr. Reis?
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MR.
REIS:
Yes.
We feel discovery should go 2
forward.
We feel that discovery against the staff -- we
{
3 particularly feel we need discovery, particular -- more so 4
than ever since your statements in the beginning.
We have to l
5 know the basis of this contention completely and thoroughly.
.l 6
Therefore, we feel we have to ask interrogatories of Mr.
l t
7 Mosbaugh on each and every basis upon which he says, and as l
8 I read it here, his competence, integrity, character, and a l
9 truthfulness, willingness to abide by regulatory requirements.
l l
10 That's the whole history of Georgia Power forever, going back i
11 to when they first got their license to now.
I don't know j
i 12 what the scope of this contention is at this point.
l 13 JUDGE BLOCH:
Mr. Reis --
[
l 14 MR. REIS:
I guess --
l O
15 JUDGE BLOCH:
Mr.
- Reis, I assure you that our l
l 16 interpretation is narrower than that.
I 17 MR. REIS:
Well, I don't know because --
l 18 JUDGE BLOCH:
I just told you.
l 19 MR. REIS:
The regulatory violation that they had l
20 since they got their license could be material to willingness 21 to abide by regulations.
22 JUDGE BLOCH:
Mr. Reis, what I learned in law school 23 was that words are to be given reasonable interpretations in 24 the context in which they occur, and I just assure you that 25 your interpretation is much broader than we would give to it.
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MR. REIS:
- Okay, 2
JUDGE BLOCH: You may continue, but I understand you 3
want to depose him.
How do you feel about his right to I-4 immediately depose people from Georgia Power?
5 MR. REIS:
I have known that thought between him and j
l 6
Georgia Power. We don't see any reason in the regulatiens why l
l 7
he can't.
i 8
JUDGE BLOCH: And how about -- do you have any views l
?
9 on the question of level playing field or equity or perhaps l
i 10 even the necessity to get at the truth before they see the i
11 documents?
How do you feel about the ability to get the l
l i
l 12 truth, as opposed to whether there's a level playing field?
13 MR. REIS:
You know,_Your Honor, I'm thinking of i
14-when I practiced in court, and very often we would ask the 15 witnesses questions, and then we would produce the documents.
i 16 I don't think that is a bad way of proceeding.
We don't do i
17 that at the NRC.
We try to have everything out in front, but j
I 18 the question is, which gets better at the truth is really a l
19 difficult question.
I don't think it's a question of level 20 playing field.
I think they can ask it, and we are all aware f
l 21 that people's memories fade over time, and they can say gee, j
l l
22 I have a better memory now that I've seen this document or f
23 that I listened again to this tape of what happened.
- Fine, t
24 but I think there are some advantages, as Mr. Kohn said, of 25 being able to generate a story before everyone sees everything i
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chat went before.
2 JUDGE BLOCH:
All right, now.
There's also some 3
advantage to not having these people unnecessarily redundantly 4
deposed.
5 MR. REIS:
I agree.
6 JUDGE BLOCH:
And it's fairly likely that if Mr.
7 Kohn deposes them, that at some point, OI may also do it.
8 Could you obtain for me information.on whether OI has any idea 9
as to when it might choose to depose these particular 10 witnesses?
11 MR. REIS:
I've inquired on that.
I've been told 12 they will start that activity shortly.
They did not give me 13 and would not give me a better schedule when I asked that 14 particular question.
15 JUDGE BLOCH:
Because shortly is abot:t as helpful 16 as when the Commission might decide this case.
17 MR. REIS:
That's true, Your Honor.
I have to say 18 that's true and cannot disagree.
19 JUDGE BLOCH: And they really can't provide anything 20 more specific than that, like whether it's'a matter of --
21 MR. REIS:
I'll go back to them and ask again.
22 JUDGE BLOCH:
Okay.
I'd like to know whether it's 23 going to be weeks or a month or months, you know, something 24 that will put some limit around it because I could see some 25 advantage to having them do it first.
Before we're done, I'd ANN RILEY & ASSOCIATES, LTD.
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like to have Mr. Kohn comment on that because he didn't use I
i 2
all his --
3 MR. REIS:
Let me say this, Your Honor, I don't 4
think we're talking about, you know, I do think we're talking 5
in this stage, someplace I said six months to put this off, j
6 and that was about two months ago.
I do think I'm talking i
7 about early fall that they will have made substantial progress l
8 in their investigation.
l 9
JUDGE BLOCH:
- Okay, I'm not talking about l
10 substantial progress of wrapping up the investigation.
I'm j
11 only talking about when will they depose the Georgia Power r
12 witnesses, or don't they know?
l 13 MR. REIS:
Okay, when depose, let me make a note.
f 14 JUDGE BLOCH: If you can also give us their expected j
O 15 completion date of the investigation.
That also would be 16 helpful, but the one question I was asking was when, if at 17 all, do they plan to depose the witnesses from Georgia Power.
18 MR. REIS:
Okay.
We will go back and ask them.
}
l 19 JUDGE BLOCH:
And if we could get that within a 20 week, that would be great, the schedule from OI within a week, I
21 and then we'll decide quickly after we get that.
22 MR.
REIS:
- Okay, I'll try and get you that t
~
i 23 information, Your Honor.
Going forward, as we said, we 24 thought it would be well for discovery to go forward, provided i
25 it went forward against the staff, particularly under 2.728
[
I I
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148 1
and 2.744, and will give us an opportunity to winnow out those 2
things that we feel would effect the investigation, ongoing 3
investigation, and those which wouldn't.
As you know, under
)
4 2.790, which is referred to in those regulations, we have 1
5 certain privileges as to internal office matters and to l
t 6
criminal investigations, and while that investigation goes a
7 forward.
It is very hard to winnow out unless I have a j
l 8
particular request for a document and further, know whether
[
9 there is a dispute as to something.
It could be that much of l
10 the material that is being asked for we're very willing to l
I 11 turn over.
I think that will probably be the case.
l 12 Therefore, we feel that the sooner discovery starts, 13 particularly at least in some way have Mr. Mosbaugh set forth
{
I 14 each basis of his contention that he knows.
If there is new i
15 information that develops later, that's something else again, i
16 but at least that we know where we 're striving and where we ' re I
f 17 going on this matter.
For instance, character, competence, i
18 integrity, I don't know.
It could be argued very easily that 19 misrepresentations to EPA on air pollution or to the Public t
20 Service Commission on rates reflect on corporate integrity, l
l 21 and is that a matter that they're going to bring up?
I don't I
i 22 know.
Also, with regard to competence, so when I look at the l
23 contention as it's submitted, and I thought it was limited by 24 the bases, I don't know where we're going in this proceeding, l
25 and I don't know how broad this proceeding is and what to ANN RILEY & ASSOCIATES, LTD.
Court Reporters 1612 K Street, N.W.,
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4 i
.149 i
)
1 prepare for.
i 2
The next
- question, we already addressed
.the 3
advantages of commencing discovery.
As you have mentioned I
j 4
before yourself, the Commission policy is to encourage ' the
{
5 prompt disposition of matters, and commencing discovery would.
6 I've already addressed what the stage of the investigation is 1
1 7
and what should be happening.
1 8
JUDGE BLOCH: Incidentally, while you're doing that, i
j 9
the thought that I was having is that we could conceivably
].
10 give OI priority on the questioning up to some point in May, j
1 1
11 at which point Mr. Kohn should be able to go forth.
So, what l
l 12 you might do is also be able to comment on whether it matters 13 that there's priority on questioning the witnesses or that il l
14 someone else go ahead first.
i i
15 MR. REIS:
I don't think OI cares about that.
i I
16 JUDGE BLOCH:
Okay, then you're on the record about 17 that.
If you want to, you can correct it.
18 MR. REIS:
Okay.
19 JUDGE BLOCH:
Anything else?
l 20 MR. REIS:
I believe that answers your questions, 21 Your Honor.
If you have anything else you'd like to ask me?
1 j
22 JUDGE BLOCH:
No, thank you.
Mr. Kohn, I would like I
23 you to comment on this question of priority and questioning
)
24 if you have anything to say.
25 MR.
KOHN:
- Yes, Your Honor.
I can certainly l
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understand trying to truncate the deposition process, and I
()
2 would propose that if OI is contemplating going forward with 3
depositions in the near future, that perhaps the best way to 4
do it is to allow the parties to attend those proceedings, and 5
then after that's done, I would suggest that the OI would 6
probably cover 90-some percent of all of the questions that 7
we would have anyway, and at that point, we could then get our 8
deposition process after that, and I would suggest that our 9
deposition process would be much more limited in scope.
10 MR. REIS:
Your Honor, let me quickly say that OI 11 is not about to conduct their investigation with Mr. Kohn 12 present or with any other person present.
An investigation 13 is conducted as an investigation, and that suggestion I can 14 say would be rejected out of hand.
15 MR. KOHN:
Then I guess, Your Honor, my feeling is 16 then whether or not OI goes forward has no bearing on the 17 discovery here.
We will not get that documentation until 18 after they close out their investigation.
19 JUDGE BLOCH:
That's certainly the case if they're 20 going to treat it that way.
Are there any other necessary 21 points before we conclude today's conference?
22 There being none, I'd like to thank the parties for 23 their participation, and this scheduling conference is 24 adjourned.
25 MR. REIS:
Thank you, Your Honor.
ANN RILEY & ASSOCIATES, LTD.
Court Reporters 1612 K Street, N.W.,
Suite 300 Washington, D.C.
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151 1
MR. KOHN:
Thank you, Judge 2
JUDGE BLOCH: If anyone wants to order a transcript, 3
I will stay on the line.
Our reporter today is Jon Hundley.
4 I want to thank him for his time with us, and you may order 5
from him if you'd like.
6
[Whereupon, at 2:00 p.m.,
the conference was 7
adj ourned. ]
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ANN RILEY & ASSOCIATES, LTD.
Court Reporters 1612 K Street, N.W.,
Suite 300 Washington, D.C.
20006 (202) 293-3950
REPORTER'S CERTIFICATE This is te certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of:
NAME OF PROCEEDING: Vogtle Generating Station 50-424-OLA-3 DOCKET NUMBER:
PLACE OF PROCEEDING: Bethesda, MD were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and
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accurate record of the foregoing proceedings.
i Jc7\\ b u nd /lr g,
official Reporter
,f Ann Riley & Associates, Ltd.
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