ML20072E969
| ML20072E969 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 08/16/1994 |
| From: | Joiner J GEORGIA POWER CO., TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#394-15585 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9408230155 | |
| Download: ML20072E969 (12) | |
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/65f5 00CKETED AugusE![di 1994 UNITED STATES OF AMERICA 94 ate 17 P3 :47 NUCLEAR REGULATORY CGMMISSION Before the Atomic Safety and Licensina Board,
- 37l n sr 0 0( Z '
'H
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In the Matter of
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Docket Nos. 50-424-OIA-3
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50-425-OLA-3 GEORGIA POWER COMPANY,
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et al.
)
Re: License Amendment
)
(Transfer to Southern (Vogtle Electric Generating
)
Nuclear)
Plant, Units 1 and 2)
)
)
ASLBP No. 93-671-01-OLA-3 GEORGIA POWER COMPANY'S RESPONSE TO INTERVENOR'S MOTION TO COMPEL GPC TO PRODUCE BILL SHIPMAN Georgia Power Company ("GPC") opposes Intervenor's Motion to Compel GPC to Produce Bill Shipman, dated August 15, 1994 (the
" Motion").
Intervenor's Motion fails to identify any areas of cross-examination which make reconvening this deposition sufficiently urgent to require it three days before extremely important surgery.
The only areas cited in the Motion are those on which Mr. Shipman was questioned extensively during his August 5 deposition.
Intervenor provides no explanation why it is necessary to revisit these subjects.
In light of Mr. Shipman's serious condition, Intervenor's Motion is oppressive.
It is unreasonable, indeed inhumane, for Intervenor and his counsel to demand that their personal vacation plans take precedence over Mr. Shipman's medical needs.
i 9408230155 940016 1) 0 PDR-f90 PDR ADOCK 05000424 1
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Backaround.
On June 27, 1994, Intervenor served a Notice of Deposition with respect to 20 GPC witnesses, including Mr. Shipman.
During a July 1 meeting between Michael Kohn and David Lewis to discuss, among other things, the Notice of Deposition, Mr. Lewis advised Mr. Kohn that Mr. Shipman suffers from a life-threatening illness.'
Mr. Kohn took the position that "his condition makes it imperative that Mr. Shipman's deposition commence as soon as possible.
I request that you attempt to schedule him for deposition during the week of July 18th."
See letter from M.
Kohn to D.
Lewis, dated July 1, 1994, attached as Exhibit 1 to the Motion.
Because Mr. Shipman was recovering from chemotherapy treatment and was physically unable to attend a deposition, GPC counsel informed Intervenor that it would not be able to set a firm date for his deposition.
Intervenor's counsel proposed a deposition schedule which included a deposition of Mr. Shipman on July 22, and stated in a footnote:
If Licensee believes that Mr. Shipman will not be available on this date due to health considerations, Intervenor requests that an affidavit be submitted stating Mr.
Shipman's health status (including any reason to believe his health would improve at a later date and why a delay in taking his deposition is necessary).
Intervenor also would
' Mr. Shipman has cancer of the stomach and liver and possibly the pancreas.
He has been subjected to chemotherapy treatments which have made it difficult for him to lead a normal life.
His
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attendance at the Birmingham corporate of fices has been infrequent (i.e.,
in the thirty days prior to August 5, 1994, he had been in l
the office only about 8 or 9 days, many of which were partial days)..
like to know whether Licensee anticipates whether Mr.
Shipman will be available when the hearing in this matter convenes or whether the parties should consider taking his testimony out of time.
Sag attached letter from M. Kohn to E.
Blake, dated July 12.
GPC responded that Mr. Shipman was meeting with his surgeons in Houston on July 15 and 18 to determine whether he would undergo surgery and that GPC would not know whether Mr. Shipman would be able to attend any deposition until he returned from Houston on July 19, assuming he did not undergo immediate surgery.
See attached letter from J. Lamberski to M.
Kohn, dated July 14, 1994.
Intervenor then wrote:
Full disclosure about Mr. Shipman's condition would allow Intervenor to adequately assess the current situation.
i Depending on Mr. Shipman's actual condition, Intervenor may wish to take his deposition in Houston prior to his surgery.
I note that I requested in my 7-12 letter... that you submit an affidavit concerning Mr. Shipman's health status.
I again request that such an affidavit be provided before Mr. Shipman undergoes any risky surgery.
Egg letter from M. Kohn to J.
Lamberski, dated July 14, 1994, attached as Exhibit 3 to the Motion, at n.1.
In response to Intervenor's request for an affidavit, GPC counsel transmitted to Intervenor's counsel a letter from Richard Hendrix, Esq., attorney for Mr. Shipman, to John Lamberski, dated July 12, 1994.
Mr. Hendrix' letter exp'ained that, if Mr.
Shipman did not undergo immediate surgery following July 18, he planned to rest and be on vacation during the week of July 25 through August 1.
Mr. Hendrix' letter further stated that Mr.
Shipman was not currently able to give a deposition, either physically or mentally, and that he was not anticipated to be )
I
available for a deposition before August 8, although he noted that the situation could change.
Egg letter from J.
Lamberski to M.
Kohn, dated July 15, 1994, and letter from R. Hendrix to J.
Lamberski, dated August 12, 1994, attached to the Motion as Exhibits 4 and 5, respectively.
During the July 29 status conference in the ASLB hearing room in Rockville, Md.,
the subject of Mr. Shipman's deposition was discussed.
Tr. 560-61.
Counsel for GPC advised the Board and the parties that Mr. Shipman would be available for a deposition on August 5 and that GPC wanted to complete the deposition at that time (the deadline for discovery was August 8).2 Because Mr. Mosbaugh was on vacation that week, Intervenor said it was necessary to have a follow-up deposition when Mr.
Mosbaugh was available and proposed that it occur on August 25 or 26.
GPC counsel advised that there was no schedule conflict for such a follow-up deposition but that Mr. Shipman would be undergoing surgery in mid-August and may not be available afterwards.
Judge Bloch observed that the best approach would be to see what could be accomplished on August 5, with the possibility of follow-up on August 25 or 26.
Tr. 561.
Mr. Shipman's deposition was taken by Michael Kohn on August 5,
1994 in Birmingham, Alabama.
The deposition was attended by 2 Intervenor's counsel asserts that he was told the first date Mr.
Shipman would be available for a deposition was August 5 (Motion at 3).
This is incorrect.
Mr. Shipman was resting between July 25 and August 1; he was available during the week of August 1.
Mr. Shipman and his counsel proposed August 5 for the deposition, to which Intervenor did not object.
l.
counsel for GPC and the NRC Staff, and by Mr. Shipman's personal attorney, Richard Hendrix.
After about four and a half hours, Mr. Shipman tired and the deposition was terminated.
Mr. Kohn stated that he had additional questions and Mr. Kohn indicated that he wanted to reconvene the deposition after Mr. Mosbaugh's deposition, scheduled for August 23-24.
Mr. Shipman advised that he was expected to enter the hospital for surgery to remove his stomach, and possibly other organs, on August 24 or 25.
Mr. Kohn proposed that the deposition be reconvened on August 32, but counsel for GPC and for Mr. Shipman objected because it was too close in time to his surgery.
The week of August 15 was proposed, but Mr. Kohn objected because, he said, Mr. Mosbaugh would be unavailable.
GPC counsel stated that Mr. Shipman's situation should take precedence over Mr. Mosbaugh's vacation schedule, but no agreement was reached.
On August 11, counsel for GPC contacted Mr. Kohn and proposed that Mr. Shipman's deposition take place on August 15, 18 or 19.
Mr. Kohn disclosed for the first time that he would be unavailable that week because, he said, he would be out of the country on vacation.3 During the August 12 status conference the matter was discussed again.
Tr. 651-55.
GPC counsel summarized for the Intervenor's counsel asserts that GPC counsel stated they would advise Michael Kohn of Mr. Shipman's availability on August 22.
Motion at 4-5.
This too is not correct.
GPC counsel advised 1
I Mr. Kohn on August 11 that GPC and Mr. Shipman's counsel opposed the deposition on August 22.
I Board the discussions between the parties and argued that the deposition should be taken the week of August 15 (e.g., August
- 18) and not the week of the 22nd.'
GPC observed that there are other attorney's available to Mr. Mosbaugh to take the deposition.
Intervenor's counsel objected stating that Michael Kohn was the only one who could take the deposition.
The Board advised Intervenor's counsel to file a motion on the matter by August 15; GPC was given until August 17 to respond.
The Board advised Intervenor that "I think what I'd need is a motion that would show why it's sufficiently urgent to require this deposition two days before this surgery.
If you showed a cross examination plan that was important enough, I might be able to uphold it."
Tr. 653.
II.
Discussion.
Mr. Shipman is currently scheduled to enter the hospital on August 25 for preparatory work in connection with his surgery, scheduled for August 26.
L'ollowing his surgery, Mr. Shipman is expected to have a recovery period of about two months.
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.
In light of the significance of the surgery he will undergo, GPC and counsel for Mr. Shipman oppose 4
Intervenor's assertion that " Licensee indicated that Mr.
Shipman would not be available for the continuance of his deposition during the week of August 22
" (Motion at 1) is false.
What GPC counsel indicated is on the record.
Tr. 651-52..
the taking of his deposition during the week of August 22 for four reasons: (1) concern for Mr. Shipman's family, (2) concern i
for Mr. Shipman's state of mind, (3) the questions Intervenor I
apparently intends to ask have already been asked and answered, and (4) Intervenor's apparent insensitivity to Mr. Shipman's situation compared to Intervenor's and his counsel's personal vacation plans.
Intervenor has shown no compelling reason why Mr. Shipman should be subjected to a lengthy deposition three days before he enters the hospital.
Intervenor has filed no cross examination plan, as requested by the Board.
Intervenor only states that he considers Mr. Shipman to be a "very critical witness to this proceeding," and drops the following footnote:
Mr. Shipman was the General Manager over licensing with whom Mr. Mosbaugh spoke on April 19, 1990 to advise him that the April 9, 1990 Corrective Action Response letter transmitted by GPC and the draft of Site Area Emergency Licensing Event Report (LER 90-006) contained materially false statements.
Mr. Shipman also states on Tape 57 that he was going to meet with Mr. Hairston and advise him of this matter.
On a later afternoon telephone conference, in response to a question by
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Mr. Hairston as to whether there were trips on the diesels, Mr. Shipman is alleged to have responded that management should just " disavow" knowledge of any trips.
Motion at S n.4.5 While GPC agrees that these assertions raise questions 5 The first sentence of this footnote takes liberties with the transcript of Tape 57.
In the conversation between Mr. Mosbaugh and Mr. Shipman on April 19, 1990, Mr. Mosbaugh did not advise Mr.
Shipman that the April 9 letter and draf t LER contained materially false statements.
GPC is aware that, in an earlier conversation on Tape 57, Messrs. Mosbaugh and Aufdenkampe advised Mr. Strinofellow of their concerns about material false statements.
l concerning important discussions on April 19, 1990, Mr. Shipman was questioned at length, on August 5, about the events of April 19, including the conversations which are transcribed on Tapes 57 and 58.6 In addition, before the deposition was over, Intervenor's counsel had moved on to other events beyond the events of April 19, 1990.
Apparently, Intervenor is planning to question Mr. Shipman again about the events of April 19, 1990.
GPC finds such a prospect to be objectionable, irrespective of Mr. Shipman's condition.
Further, Mr. Shipman specifically testified during his deposition that (1) he did not believe that he went to Mr.
Hairston's office after talking with Mosbaugh in the conversation which is transcribed on Tape 57 (although he thought Mr.
Stringfellow did), and (2) he does not believe the words "I'll testify to that" or "just disavow" are spoken on Tape 58.
GPC proposes that Mr. Shipman's deposition continuance take place, if at all, on August 18 or 19, in Birmingham, Alabama.
Intervenor's Motion does not identify any areas of questioning for Mr. Shipman that Intervenor's counsel has not already covered in detail in Mr. Shipman's August 5 deposition.
A further deposition of Mr. Shipman is clearly not critical, and arguably
- Intervenor has not seen fit to have the transcript of this deposition prepared at this time.
Therefore, a
record is unavailable to GPC in order to direct the Board's attention to specific questions and answers.
However, GPC counsel compiled nearly six full pages of notes concerning the questions and answers with respect to Tapes 57 and 58, much of which was taken up with Mr. Kohn reading excerpts of the transcripts to Mr. Shipman and asking questions concerning those excerpts.
I I
not warranted at all.
Mr. Mosbaugh and Mr. Kohn should not be permitted to force Mr. Shipman to meet their personal vacation schedules considering all of the circumstances.
Considering the involvement of the various attorneys at Kohn, Kohn & Colapinto evident to date, it is reasonable to expect another attorney, beside Michael Kohn, to manage such a deposition.
As far as Mr.
Mosbaugh is concerned, considering that he has managed to make himself available to his counsel during his vacation for other purposes, it is reasonable to expect him to make himself available, at least by telephone, to assist his counsel with a deposition on August 18 or 19.
GPC and Mr. Shipman's personal counsel have proposed a schedule which is more reasonable in light of Mr. Shipman's condition.
Considering all the circumstances, the personal vacation plans of Intervenor and his counsel should not be elevated above Mr. Shipman's situation.
III.
Conclusion.
For the reasons stated above, Intervenor's Motion to Compel GPC to Produce Bill Shipman, dated August 15, 1994, should be denied.
Respectfully submitted, mb s' E. J41nbr ohn Lamberski TROUTMAN SANDERS 600 Peachtree Street, NE Suite 5200 Atlanta, GA 30308-2216 (404) 885 3360 Ernest L. Blake, Jr.
David R.
Lewis SHAW PITTMAN POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, D.C.
20037 (202) 663 8000 counsel for Georgia Power Company Dated:
August 16, 1994 l.
UNITED STATES OF AMERICA 3'
p' NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Board N A% 17 P 3 M7
)
0Fr h. r'! - Y r E taY In the Matter of
)
Docket Nos. 5 0-41(~OLA-3 _ o r R's E
)
50-4 2 5-OLA-3 i. idw!!
CEORGIA 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 CERTIFJ
.TE OF SERVICE I hereby certify that copies of " Georgia Power Company's Response to Intervenor's Motion to Compel GPC to Produce Bill Shipman," dated August 16, 1994, were served by deposit in the U S.
Mail, first class, postage prepaid, or by facsimile where inc'icated by an asterisk, upon the persons listed on the attached service list, this 16th day of August 1994.
h 1
ohh Lamb 6rski Dated: August 16, 1994 1
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Defore the Atomic Safety and Licensino Board
)
In the Matter of
)
Docket Nos. 50-424-OLA-3
)
50-425-OLA-3 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 SERVICE LIST
- Administrative Judge Office of the Secretary Peter B.
Bloch, Chairman U.S.
Nuclear Regulatory Atomic Safety & Licensing Board Commission U.S.
Nuclear Regulatory Washington, D.C.
20555 Commission ATTN: Docketing and Services Washington, D.C.
20555 Branch
- Administrative Judge
- Mitzi A.
Young, Esq.
James H.
Carpenter
- Charles Barth, Esq.
Atomic Safety & Licensing Board Office of General Counsel 933 Green Point Drive One White Flint North Oyster Point Stop 15B18 Sunset Beach, N.C.
28468 U.S.
Nuclear Regulatory Commission
- Administrative Judge Washington, D.C.
20555 Thomas D.
Murphy Atomic Safety & Licensing Board
- Director, U.S.
Nuclear Regulatory Environmental Protection Commission Division Washington, D.C.
20555 Department of Natural Resources
- Michael D.
Kohn, Esq.
205 Butler Street, S.E.
Kohn, Kohn & Colapinto, P.C.
Suite 1252 517 Florida Avenue, N.W.
Atlanta, Georgia 30334 Washington, D.C.
20001 Office of Commission Appellate Stewart D.
Ebneter Adjudication Regional Administrator U.S.
Nuclear Regulatory USNRC, Region II Commission 101 Marietta Street, NW Washington, D.C.
20555 Suite 2900 Atlanta, Georgia 30303