ML20072P123
| ML20072P123 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 08/26/1994 |
| From: | Doris Lewis GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#394-15653 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9409070102 | |
| Download: ML20072P123 (15) | |
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DOCKETED 7
AugusOSf6,C 1994 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 94 ALS 30 P 4 :50 Before the Atomic Safety and Licensing Board pc co r;q1APV DOCKE'11% &" 2 L.. f R'c UF.
i W
L BE AF lH
)
In the Matter of
)
Docket Nos. 50-424-OLA-3
)
50-425-OLA-3 GEORGI A 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 GEORGIA POWER COMPANY'S MOTION TO DEPOSE NRC PERSONNEL I.
INTRODUCTION Pursuant to 10 C.F.R. 5 2.720(h)(2)(i), Georgia Power Com-pany ("GPC") hereby moves the Licensing Board for an order requiring attendance and testimony on deposition of the following NRC Staff personnel: Messrs. Ebneter, Brockman, Chaffee, Hunt, Taylor, Hayes, and Robinson.1!
These individuals possess direct personal knowledge of relevant and material facts which are not known by the witnesses designated by the NRC Staff.
Therefore, exceptional circumstances exist for the requested depositions.
1/
GPC understands that Mr. Hayes, and perhaps Mr. Hunt, have recently retired, which may make the limitations in 10 C.F.R.
S 2.720(h)(2) inapplicable to these individuals.
GPC also intends to depose the four individuals identified as NRC Staff witnesses.
The Staff has agreed that these individ-uals may be deposed.
h(/h) 9407070102 940826 hDR ADOCK 05000424 PDR
t The depositions of Messrs. Ebneter, Brockman, Chaffee, Hunt, and Taylor are essential because these individuals received, com-municated, and evaluated the information on the diesel generator starts at issue in this proceeding.
In a case where GPC and its employees are accused of having concealed information and misled the NRC, GPC must be granted a full opportunity to demonstrate the extensive information that the NRC received from GPC and the NRC's resulting awareness of the diesel generator test results and implications.
Thus, it is essential that GPC be permitted to depose these individuals.
A panel of witnesses who were not per-sonally involved in the flow of information is no substitute.
The depositions of Messrs. Hayes and Robinson are necessary if the OI report will be introduced into evidence.
Mr. Robinson drafted the report and Mr. Hayes reviewed and approved it.
GPC disputes many of the findings and conclusions in that report and, if it is to be introduced into evidence, must be afforded a mean-ingful opportunity to cross-examine its preparers.
II. BACKGROUND During a status conferen.ce on May 3, 1994 the Licensing Board ruled that, by May 13, 1994, the parties would exchange their best current witness lists with respect to the diesel gen-erator reporting issue.
Tr. 388.
On May 13, GPC identified its best current witness list and also identified the following NRC Staff personnel among its best current list of deponents: Stewart
o 4
D.
Ebneter, Kenneth E. Brockman, Milton D.
Hunt, Peter A. Taylor, Alfred E.
Chaffee, Larry L.
Robinson, David B. Matthews, Ben B.
Hayes, and anyone else designated as a witness by the NRC Staff.
GPC also indicated it would begin discussions with the Staff to obtain its agreement that the NRC witnesses be made available on a voluntary basis in lieu of the procedure required by 10 C.F.R. 5 2.720(h)(2).
Letter from J. Lamberski to C.
Barth and M.
Kohn (May 13, 1994).
At that time, the NRC Staff identified a panel consisting of David B. Matthews, Pierce H.
Skinner, Darl S. Hood, and Louis L. Wheeler as its intended witnesses on the diesel gen-erator reporting issue.
See letter from M.
Young to J. Lamberski and M. Kohn (May 13, 1994).
Shortly thereafter, the NRC Staff, citing 10 C.F.R.
S 2.720(h)(2)(i), requested that GPC provide a sufficiently detailed proffer for each NRC person identified for deposition of the expected factual testimony which GPC expected to elicit from them in order that the NRC could determine whether it would be necessary to add sny additional witnesses to the NRC's witness list.
Letter f rom C. Barth to J. Lamberski (May 18, 1994).
On June 1, GPC provided the following information in response to the NRC's May 18 letter:
GPC believes that depositions of Messrs. Ebneter, Brockman, Hunt, Taylor, and Chaffee will establish the level of personal knowledge possessed by these individ-uals on or before April 9, 1990 or April 19, 1990 con-cerning (1) the problems experienced with the Plant Vogtle 1B diesel generator following the March 20, 1990 site area emergency, (2) the significance of the 4
problems experienced on the Plant Vogtle 1B diesel on March 22, 23, and 24, 1990, (3) the degree of reliance by NRC personnel on, and the significance of, the die-sel starts statements made by GPC on April 9, 1990 and April 19, 1990, [and] (4) the meaning of certain state-ments included in GPC's April 19, 1990 LER 90-006.
GPC believes that depositions of Messrs. Robinson and Hayes are necessary to establish the bases for the con-clusions reached in [the] OI Report in Case No.
2-90-020R, dated December _20, 1993, which was authored by Mr. Robinson and approved by Mr. Hayes.
Letter from J. Lamberski to C.
Barth (June 1, 1994).
GPC again requested that the named NRC Staff personnel be made available on a voluntary basis in lieu of the procedure described in 10 C.F.R. 5 2.720(h)(2).
In response to GPC's June 1 letter, counsel for the NRC Staff stated:
If you believe that other witnesses have particular knowledge of material facts not possessed by the vit-nesses on our list, I would be willing to consider add-ing them to our list.
The Staff is working on a response to your proposed diesel stipulations.
Hopefully, when you receive our response there may be no need to seek to depose any additional Staff personnel.
At the present time, I suggest that consideration of additional NRC Staff per-sonnel as either deponents and/or witnesses be deferred.
Should you, or the Intervenor, at a later time, make a compelling case for a particular NRC per-son to be deposed or to testify because of unique per-sonal knowledge not possessed by Staff proffered per-sons, we shall give consideration to your request, without regard to time frames and deadlines otherwise imposed.
It would not be sufficient, however, simply to assert that depositions "will establish the level of personal knowledge of each of those individuals" in order for the Staff to agree to make documents (sic) available. -
i I suggest that we continue this dialogue after the Staff has responded to your proposed stipulations on the diesel generator issue.
Letter from C.
Barth to J. Lamberski (June 20, 1994).2/
In sub-sequent discussions, the Staff agreed that GPC would be permitted to request depositions of NRC Staff personnel after review of the Staff's response to GPC's diesel generator stipulations, even if this occurred beyond the close of the discovery period.
At the July 29, 1994 status conference, after considerable discussion of the time it would take to pursue stipulations, GPC suggested that a hearing schedule should be established and that further delays to reach stipulations were no longer appropriate.
Tr. 532-34.
The Staff later pointed out that dropping the diesel stipulations would affect the agreement between GPC and the Staff concerning deposition of NRC personnel, and GPC agreed to address this matter in a written schedule to be proposed by August 2.
Tr. 555-59.
The written schedule subsequently proposed by GPC contem-plated abandoning the stipulation process and proceeding with i
deposition of NRC personnel.
Georgia Power Company's Proposed 2/
GPC's Proposed Stipulations Concerning The Alleged GPC False Statements To NRC Related To the Diesel Generators were proffered to the parties on March 1, 1994 in an effort to narrow the issues necessary for adjudication in the proceeding, consistent with the Licensing Board's Memorandum and Order (Prehearing Conference Order: Schedule), dated February 1, 1994.
-S-
Schedule to Complete Proceeding (Aug.
2, 1994).E#
The other par-ties also submitted proposed schedules that proposed pursuing stipulations only on the tape transcripts.
These schedules were disc'= sed at the prehearing conference on August 12, and a modified version of the Staff's proposed schedule was adopted.
While the Staff schedule calls for deposi-tion of the Staff's designated witnesses between-January 4 and January 13, GPC observed that deposition of other NRC personnel could proceed before then.
Tr. 636.
The Board suggested the period prior to a ruling on summary disposition, and GPC con-curred.
Tr. 640.
The NRC Staff confirmed that it would not make NRC personnel other than the designated witnesses available vol-untarily.
Tr. 641-42.
GPC agreed to file its motion during the week of August 22, so that the Board could rule in time to allow depositions on NRC personnel after October 4.
Tr. 650-51.
III. DISCUSSION As stated earlier, GPC vishes to depose Messrs. Ebneter, Brockman, Chaffee, Hunt, Taylor, Robinson, and Hayes, because these individua'Is possess direct personal knowledge of relevant l
and material facts which are not known by the witnesses 1/
The Staff's inability to respond to these stipulations before completion of its enforcement review, coupled with Inter-venor's denial of virtually very one of GPC's proposed stipula-tions, led GPC to conclude that further efforts to reach stipula-tions would delay rather than accelerate the proceeding. 'l
designated by the NRC Staff.
Fundamental fairness requires these depositions.
Drukker Communications, Inc.
v.
NLRB, 700 F.2d 727, i
733 (D.C. Cir. 1983) (in an administrative proceeding subject to a rule prohibiting testimony of NLRB employees absent permission from the agency's general counsel, the NLRB's refusal to subpoena an employee with critical information was held repugnant to notions of fairness, and the agency's decision was set aside).
GPC wishes to depose Mr. Ebneter because he was the NRC official who authorized restart after the April 9, 1990 letter and presentation.
Whether Mr. Ebneter was misled by the informa-tion in the April 9 presentation and letter is relevant to deter-mine whether any inaccuracy was material.
GPC believes that Mr.
Ebneter and his staff had considerable information on the diesel generator tests, including knowledge of certain problems during troubleshooting starts and were not or should not have been mis-led.
Establishing this knowledge and the extent of information being provided freely and openly by GPC is also important to show that GPC did not attempt or intend to conceal any failures or mislead the NRC.
GPC also wishes to depose Mr. Ebneter because he received several oral communications from Mr. Hairston, on or about May 24 and in mid-June, informing the NRC of questions raised concerning the accuracy of reported diesel start data.
Again, this evidence i
shows that GPC was not attempting to conceal any information or
{
mislead the NRC.
l GPC wishes to depose Mr. Brockman for similar reasons.
Mr.
Brockman was the NRC Region II official directly responsible for review of the March 20 event and knowledgeable of the diesel gen-erator testing.
He was the leader of the Augmented Inspection Team (AIT) initially assigned to review the March 20 event and was involved in discussions with GPC personnel concerning the diesel testing program and problems that had occurred during troubleshooting of the 18 diesel generator.
After the AIT was replaced by the Incident Investigation Team (IIT), Mr. Brockman became the Region II point of contact for the IIT.
Mr. Brockman received communications from NRC inspection team members, sup-porting personnel, and GPC concerning the diesel generator test-ing and reliability, including communications informing him of diesel start problems during troubleshooting.
His testimony is therefore important to establish GPC's efforts to keep the NRC fully informed of diesel generator testing and the NRC's aware-ness of those results.
GPC believes that Mr. Brockman's testi-mony could establish that the NRC was not misled and that GPC did not attempt to conceal information or mislead the NRC.
In addition, in authorizing restart, Mr. Ebneter relied in part on Mr. Brockman's opinion.
Therefore, Mr. Brockman's knowl-l edge and the extent of his communications with Mr. Ebneter are t E
important to determine the materiality of any inaccuracy in the April 9 presentation or letter.
Mr. Brockman's deposition is also important because he received oral communications informing him of questions raised concerning the accuracy of the reported diesel start data.
The communications include telephone calls from Mr. McCoy on or about April 19, May 24, and August 28, 1990, and a telephone call on or about June 15, 1990, from Mr. Shipman.
In particular, GPC believes that in the April 19 telephone conversation, Mr.
Brockman confirmed that he understood there were problem starts during troubleshooting, was informed that GPC's count began after the " comprehensive test program," and may have discussed what that phrase meant.
Again, this information is important to show that GPC was not attempting to conceal any information.
Finally, the depositions of both Mr. Ebneter and Mr.
Brockman are very important to establish their professional opin-ion of Vogtle management, particularly Mr. Hairston and Mr.
McCoy.
Mr. Ebneter is the Regional Administrator, and Mr.
Brockman was for a number of years, and during the time period relating to the allegations, the main Region II official respon-sible for all Vogtle matters.
In these capacities, Mr. Ebneter and Mr. Brockman regularly observed, communicated, interacted with, and evaluated Vogtle management.
There are no NRC offi-cials better suited to provide a professional opinion on the a
character of Vogtle's senior management based on direct personal observation over a sustained period.
GPC expects that Mr.
Ebneter and Mr. Brockman will confirm the honesty and diligence of its current senior management, specifically Mr. Hairston and Mr. McCoy.
GPC wishes to depose Messrs. Hunt, Taylor and Chaffee because they are NRC personnel who knew of problem starts after the March 20, 1990 event.
Messrs. Hunt and Taylor were assigned to assist the IIT.
They were on-site, observed many of the die-sel tests, and knew or should have known of the general extent of the diesel testing, the problem starts during troubleshooting, and the resolution of those problems.
Mr. Chaffee was the IIT leader.
He was also on site at certain times and witnessed some diesel testing.
He was informed by GPC personnel of problems that occurred during troubleshooting of the 18 diesel generator.
GPC also believes he received, prior to the April 9 letter and presentation, a' list of the diesel generator starts showing the problems during troubleshooting, and a list of sensor problems associated with the problem starts.
GPC believes that Mr.
Ebneter sought confirmation f rom Mr. Chaf fee and Mr. Hunt that they had confidence in the diesels and no objections to restart after the April 9 presentation.
The day after the April 9 pre-sentation (but before restart was authorized) Mr. Chaffee (as well as Mr. Brockman) was involved in discussions with GPC per-sonnel and questioned the start count.
That question, however, i
i -. l
was apparently not significant enough to affect the restart decision.
Thus, these individuals possess direct personal knowledge of the diesel start information that was in the NRC's possession prior to April 9, 1990 and prior to April 19, 1990, and the NRC's awareness of problem starts.
GPC vishes to establish this infor-mation and determine the extent to which it was relayed to senior management, including Mr. Brockman and Mr. Ebneter.
This knowl-edge is very important to establish if any inaccuracy in the reported data was material.
The witnesses designated by t-he NRC Staff cannot provide this testimony.
The designated Staff witnessed are members of the Coordinating Group that reviewed evidence collected by OI.
While they can discuss their review and opinions, they cannot testif y to f acts beyond their direct personal knowledge.
The information gathered by OI is also insufficient to establish the facts required by GPC.
None of OI's interviews with NRC personnel were transcribed.
The OI report does contain short interview memoranda prepared by Investigator Robinson, but they contain insufficient ietail for GPC's needs.
It appears that OI had little interest in developing any exculpatory infor-mation.
For example, there is no discussion of the telephone conversations in which GPC notified the NRC about concerns raised about the reported diesel start data..
O GPC wishes to depose Mr. Robinson and Mr. Hayes, because they are the individuals principally involved in preparing and reviewing and approving the OI report.
If the OI report will be introduced as evidence in this proceeding, GPC should be afforded the right to cross-examine its sponsors to identify the inaccura-cies, weaknesses and bias of that report.
The OI report is replete with opinions and conclusions that do not appear to have any evidentiary basis.
If, however, all parties agree that the OI report will not be introduced into evidence, the depositioris of Messrs. Robinson and Hayes would no longer be necessary.
It is GPC's understanding that, with the exception of Mr.
Robinson, the named individuals are not involved in the NRC's enforcement review.
Thus, their depositions would not interfere with that review.
Further, since, GPC is seeking historic, fac-tual information, the testimony of these individuals does not depend on and need not await completion of the enforcement review.
With respect to Mr. Robinson, GPC anticipates that his depo-sition would not take longer,than two days and in all likelihood would be completed in one.
Thus, conducting this deposition in October would not significantly affect the NRC's enforcement review.
Further, GPC's questioning vill address OI's investiga-tion and findings, and the preparation of the OI report.
This
. i
i l
information too does not depend on, and need not avait completion l
of, the enforcement review.
l IV. CONCLUSION i
For all of the reasons stated above, the Board should require the deposition of the NRC personnel identified in this motion.
These depositions should be permitted beginning October 4, 1994.
Respectfully submitted, Ernest L.
Blake, Jr.
David R. Lewis SHAW PITTMAN POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, D.C.
20037 (202) 663 8000 t
James E. Joiner John Lamberski TROUTMAN SANDERS 600 Peachtree Street, NE Suite 5200 Atlanta, GA 30308-2216 (404) 885 3360 Counsel for Georgia Power Company Dated:
August 26, 1994 1,
)
4 DOCKETED UNITED STATES OF AMERICA USHRC NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board '94 ME 30 P4 30
)
0FFicL OF SECRE TARY 50-420966M@4 AhU]ER C4 In the Matter of
)
Docket Nos.
50-425-OLAJ3
)
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 CERTIFICATE OF SERVICE I hereby certify that copies of " Georgia Power Company's Motion to Depose NRC Personnel," dated August 26, 1994, were served by deposit in the U.S. Mail, first class, postage prepaid, or where indicated by an asterisk by hand delivery, upon the per-sons listed on the attached service list, this 26th day of August, 1994.
\\
([
David Lewis Dated: August 26, 1994
i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing 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 Stewart D.
Ebneter Peter B.
Bloch, Chairman Regional Administrator Atomic Safety & Licensing Board USNRC, Region II U.S. Nuclear Regulatory Commission 101 Marietta Street, NW Washington, D.C.
20555 Suite 2900 Atlanta, Georgia 30303 Administrative Judge James H. Carpenter Office of the Secretary Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 933 Green Point Drive Washington, D.C.
20555 Oyster Point ATTN: Docketing and Services Branch Sunset Beach, N.C.
28468 Carolyn F. Evans, Esq.
I
- Administrative Judge U.S. Nuclear Regulatory Commission Thomas D. Murphy 101 Marietta Street, N.W.,. Suite 2900 j
Atomic Safety & Licensing Board Atlanta, Georgia 30323-0199 i
I U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Director, Environmental Protection Division
- Michael D.
Kohn, Esq.
Department of Natural Resources Kohn, Kohn & Colapinto, P.C.
205 Butler Street, S.E.
517 Florida Avenue, N.W.
Suite 1252 Washington, D.C.
20001 Atlanta, Georgia 30334
- Mitzi A.
Young, Esq.
Office of Commission Appellate Charles Barth, Esq.
Adjudication John T. Hull, Esq.
U.S.
Nuclear Regulatory Commissisn j
Office of General Counsel Washington, D.C.
20555 One White Flint North
]
Stop 15B18 Adjudicatory File i
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555