ML20071H220

Motion Requesting J Mackie Be Withdrawn as Proposed Expert Witness.Applicant Deprived of Right to Depose Mackie. Benefit of Having Conducted cross-examination Not Afforded. Certificate of Svc Encl.Related Correspondence

ML20071H220
Person / Time
Site:	Harris
Issue date:	05/17/1983
From:	Carrow H, Sean Flynn CAROLINA POWER & LIGHT CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8305240551
Download: ML20071H220 (5)

Text

<

4 ra 91l1lD n r. u a3 cu.. u .u:w a cu Di % D ,

'83 l!AY 19 TH :04 UNITED STATES OF AMERICA ..

, NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY ) 50-400 OL

) 50-401 OL (Sh~eeron Harris Nuclear Power )

Plant, Units 1 and 2) )

APPLICANTS' MOTION (REQUESTING THAT JAMES MACKIE BE WITHDRAWN AS A PROPOSED EXPERT)

On March 21, 1983, Intervenors Kudzu Alliance, Conservation Council of North Carolina and Wells Eddleman ("Intervenors")

jointly filed and served information regarding all proposed experts which the'y were proffering to review Applicants' security plan. On April 6, 1983, Applicants accordingly filed appropriate Notices to Take Depositions of all nine proposed experts proffered by the Intervenors. Those notices called for the depositions of Messrs. Tabata, Crockett, Blair, Brady, Tuggle, Stevens, and Bleacher to be takeon on April 18, 1983 and Messrs.

Maples and MacKie to be conducted on April 25, 1983. Pursuant to the Board's April 22, 1983 Order (Resolving a Discovery Dispute),

the depositions of Messrs. Bleacher and Stevens were rescheduled I

for April 25, 1983.

AppIicants and NRC Staff deposed Messrs. Maples, Bleacher, and Steven,s on April 25, 1983 in Raleigh, North Carolina.

Counsel for Staff also deposed Mr. MacKie. Over Applicants' objection, however, Mr. MacKie left the deposition before 8305240551 830517 C PDR ADOCK 05000400 M. J G PDR J l

.- .s  :

1 l

Applicants had had an opportu'nity to depose, him. Counsel for 1

Intervenors had failed to inform counsel for Applicants and Staff 1

in a timely manner that proposed expert MacKie had a schedule conflict and that he intended to leave shortly after 2:00 p.m.

that day. Applicants' counsel, Mr. Carrow, pointed out that the April 6, 1983 Notice of Deposition had provided ample notice to Mr. MacKie and Ms. Greenblatt that the deposition was to be conducted throughout the day of April 25, 1983. Mr. Carrow expressed Applicants' willingness to attempt to accommodate Mr.

MacKie's schedule and to continue the deposition, preferrably to be conducted later that same week. Ms. Greenblatt made no effort at that time, while Mr. MacKie was still present, to reschedule the deposition but did twice acknowledge that consequences could arise from Mr. MacKie's leaving which would have to be faced.

Counsel for the Applicants informed the Board of this matter in a letter to the Board dated April 28, 1983 requesting an extension of the deadline for filing briefs on the issue of the qualifications of the proposed experts. In that letter, Applicants stated that they would try to resolve this issue informally with the other parties, but that it might become necessary to seek Board resolution of the matter.

l l In a telephone conversation between Ms. Greenblatt and Mr. Carrow on May 6, 1983, Ms. Greenblatt indicated that the Intervenors wanted to proceed with Applicants ' deposition of Mr.

MacKie. Mr. Carrow replied that if that were the case, it would be necessary for Mr. MacKie to return to Raleigh as soon as l

t

s .

o .

possible, preferably by May 9 or soon thereaf ter, in order that the deposition could be completed within sufficient time to enable Applicants to receive a transcript and meet the already extended briefing schedule. Attorney Greenblatt stated that she would have to confer with Mr. MacKie about this and would advise Applicants' counsel of their decisions and schedules. Having received no further word f rom Ms. Greenblatt since that date, Mr. Carrow initiated a telephone call to her on May 17, 1983 and was told by Ms. Greenblatt that the earliest Mr. MacKie would be available for a deposition is June 13, 1983.

While Applicants have made every eff ort to accommodate Mr.

MacKie and to cooperate with Ms. Greenblatt in proceeding with respect to his possible qualification as an expert, Applicants have been put to substantial inconvenience by Mr. MacKie's departure from the deposition on April 25 and have been seriously disadvantaged by Ms. Greenblatt's failure to proceed in a diligent fashion to accept Applicants' offer to reschedule the deposition. The very purpose of the brief which Applicants are to file on this date is to present Applicants' assessment of the qualifications of each of the individuals proffered as experts based upon the deposition testimony of such individual.

Applicants, however, have been deprived of their right to depose Mr. MacKie and have had to proceed with the preparation of their brief without the benefit of having conducted cross-examination.

the circumstances, therefore, Applicants Under all of believe that Mr. MacKie's name should be deemed to be withdrawn

. , o  :

4-from consideration as a possible expert in this matter. Because Applicants and Intervenors have been unable to resolve this matter informally, Applicants have no alterr.ative but to file this motion requesting the Board to rule that Mr. MacKie be deemed to be withdrawn from consideration.

L e w /4 } ,< d h w w

Samantha Francis Flynn /

Associate General Counsel AAbd Hill Carrow i Attorney Carolina Power & Light Company Post Office Box 1551 Raleigh, North Carolina 27602 Counsel For Applicants:

Richard E. Jones Vice President and Senior Counsel Carolina Power & Light Company i John H. O'Neill SHAW, PITTMAN, POTTS & TROWBRIDGE l

1800 M Street, N. W.

Washington, D. C. 20036 l

l l

l

,e 'l CERTIFICATE OF SERVICE , UEkh50 I hereby certify that a copy of the Applicants' Motion (Requesting That James MacKie Be Withdrawn As A Proposed Expert) has been setyydl@ylpeppag4 in the United States Mail, first class prepaid, addressed to the parties listed balow this the 17th day of May, 1983.

. . ..a.

James L. Kelley, Esquire John D. Runkle, Esquire .IQh Atomic Safety and Licensing Board Conservation Council of North Carolina U. S. Nuclear' Regulatory Commission 307 Granville Road Washington, D. C. 20555 Chapel Hill, North Carolina 27514 Mr. Glenn O. Bright M. Travis Payne, Esquire Atomic Safety and Licensing Board Edelstein and Payne U. S. Nuclear Regulatory Commission Post Office Box 12643 Washington, D. C. 20555 Raleigh, North Carolina 27605 Dr. James H. Carpenter Dr. Richard D. Wilson Atomic Safety and Licensing Board 729 Hunter Street U. S. Nuclear Regulatory Commission Apex, North Carolina 27502 Washington, D. C. 20555 Mr. Wells Eddleman Charles A. Barth, Esquire 718-A Iredell Street Myron Karman, Esquire Durham, North Carolina 27705 Office of Executive Legal Director U. S. Nuclear Regulatory Commission

~

Thomas A. Baxter, Esquire Washington, D. C. 20555 John H. O'Neill, Jr.

Shaw, Pittman, Potts & Trowbridge Docketing and Service Section 1800 M Street, N.W.

Office of the Secretary Washington, D. C. 20036 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. Phyllis Lotchin 108 Bridle Run Mr. Daniel F. Read, President Chapel Hill, North Carolina 27514 Chapel Hill Anti-Nuclear Group Effort Bradley W. Jones, Esquire i Post Office Box 524 U. S. Nuclear Regulatory Commission l Chapel Hill, North Carolina 27514 Region II 1 101 Marietta Street Deborah Greenblatt, Esquire Atlanta, Georgia 30303 1634 Crest Road Raleigh, North Carolina 27606 Karen E. Long, Esquire l Staff Attorney Ruthanne G. Miller, Esquire Public Staff Atomic Safety and Licensing North Carolina Utilities Commission i

Board' Panel Post Office Box 991 i U. S.' Nuclear Regulatory Commission Raleigh, North Carolina 27601 Washington, D. C. 20555 i

• n fu

/

hI ^AbtJ Hill Carrow Carolina Power & Light Company Post Office Box 1551 Raleigh, North Carolina 27602 (919) 836-6839

_