ML20077P536

Georgia Power Co Motion to Quash Multiple Subpoenas.* Concludes That Subpoenas Issued on 941229,should Be Quashed. W/Certificate of Svc

ML20077P536
Person / Time
Site:	Vogtle
Issue date:	01/06/1995
From:	Doris Lewis GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA
To:	Atomic Safety and Licensing Board Panel
References
CON-#195-16209 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9501180157
Download: ML20077P536 (22)

Text

{{#Wiki_filter:/62M

L

) s DOCTETED gggggry 6,1995 1 UNITED STATES OF AMERICA NUCLEARREGULATORY COMMISSION 35 JAN 10 P4 :17' j Before the Atomic Safety and Licensina Boa _rd l ' 0FFICE OF SECRE TARY DOCKETING A SERVICE BRANCit 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 Nuclear) (Vogtle Electric Generating Plant, ) i Units 1 and 2) ) ASLBP No. 93-671-01-OLA-3 GEORGIA POWER COMPANY'S MOTION TO OUASH MULTIPLE SUBPOENAS I. Introduction Pursuant to 10 C.F.R. Q 2.720(f), Georgia Power Company (" Georgia Power") moves to quash the multiple subpoenas issued on behalf ofIntervenor on December 29,1994. The subpoe-nas at issue are those addressed to Jesse P. Schaudies, Charles Whitney, Edward Addison, Wil-l liam Shipman, Kerry Adams, H. Grady Baker, Dwight Evans, Lee Glenn, William Evans, John i Meier, Robert Gilbert, Jane Henry, Donald Proctor, George Head, Robert Scherer, Gerald John-l son, Louis B. Long, Charles McCrary, Warren Jobe, and Jeff Wallace.H These subpoenas, for twenty witnesses to be called within one week, should be quashed because they are unreasonable and were not properly served. E i E Interrenor has informed Georgia Power that it will not call Messrs. Crosby, Edwards and Ewald, who were l also previously subpoenaed. Because Mr. Schaudies is no longer affiliated with Troutman Sanders or Georgia Power, counsel for Geor-gia Power returned the subpoena for Mr. Schaudies that was mailed to Troutman Sanders. Georgia Power does not know whether this subpoena has now been sen ed on Mr. Schaudies. I 9501100157 950106 l-PDR ADOCK 05000424 3 O PDR

Mi I l . II. The Subpoenas Are Unreasonable l The Commission's Rules of Practice, at 10 C.F.R. 2,720(f), authorize the Licensing Board to quash any subpoena that is unreasonable. In addition, the Board also has the power "to l . limit the number of witnesses whose testimony may.be cumulative," and "to strike argumentative, _ l repetitious, cumulative, or irrelevant evidence " 10 C.F.R. { 2.757(a), (b). Sat slag 10 C.F.R. l 2.718; Statement of Policy on Conduct of Lic.ensinn Proceedinns, CLI-81-8,13 N.R.C. 452 - l [ l (1981). Georgia Power has tried repeatedly to obtain Intervenor's agreement to a reasonable num-t ber of witnesses. Intervenor, however, has shown insufficient willingness to put forth the effort to i l reach an agreement, and instead has been constantly changing his witness list. .i On December 12,1994, Intervenor submitted "Intervenor's ' Phase I' Witness List," pro - l posing to call sixty-three individuals and six additional categories ofwitnesses approximately 95 i persons in total. Because of the unreasonableness of this list, a telephone conference was held on i i December 19,1994. At that time, Intervenor indicated that'he would drop the broad categories j of witnesses and 18 individuals whose testimony would be duplicative.k This left, however, ap-l proximately 45 witnesses - a number still clearly excessive. Intervenor suggested that the ap-l pearance of some of these witnesses might be obviated by introduction of excerpts of prict L depositions or testimony. By let'er dated December 21,1993, Intervenor proposed a schedule for his witnesses. In this letter, In tervenor proposed that the entire second week of the hearing be devoted to thirty- ' On the first day of the hearing, however, Intervenor attempted to resurrect the ev:=* list, asking that the E entire list of approximately 95 persons be sequestered as potential witnesses Tr. 1027-28. 2 l t i

I (: g I two witnesses (the first week having been allocated to Messrs. McCoy, Hairston, Farley, McDoni - ald, Dahlberg, and Mosbaugh). Four of the witnesses listed in the December 21 letter were indi-1 i i viduals that Intervenor had stated during the December 19 conference call would be dropped j 1 [- because their testimony would be duplicative. Further, the proposed ' schedule made no allowance l t j for the testimony ofIntervenor's witnesses Hobby, Barker, McHenry, Wilkihson, ahd Timmons, ] 'or any NRC Staff witnesses. I On December 28,1994, Intervenor submitted yet another "Intervenor's Witness Sched ' - ule," which proposed calling twenty-seven individuals (the twenty individuals subject to this mo-1 ~ tion, the three individuals whom Intervenor has stated he no longer intends to call, an Oglethorpe Power Company employee (Dan Smith),' and three ofIntervenor's witnesses) as witnesses during. the week ofJanuary 9. The witnesses on this schedule include a half dozen individuals whose ap-l pearance Intervenor previously indicated (during the December 19 conference call) might be obvi-ated by deposition excerpts. Intervenor asks that Mr. Barker be allowed to testify in a third week, i makes no reference to the additional Intervenor witnesses Timmons and Wilkinson,' and still makes no allowance for NRC Staff witnesses. Georgia Power has continued to make repeated attempts to negotiate a reasonable witness i list and schedide with Intervenor. On December 29, Georgia Power spoke with Intervenor and : l identified from the December 28 witness list ten witnesses (Schaudies, Glenn, W. Evans, Henry,. l Proctor, Head, Scheier, Johnson, Wallace, and Barker) whose appearance might be obviated by. introduction of deposition excerpts or prior testimony, based in large part on suggestions that In-tervenor had made during the December 19 telephone conference. Intervenor agreed that these in-dividuals' appearance could be obviated by introduction of prior testimony. In addition, . ~.

- l. i i Intervenor identified two other witnesses (Meier and Jobe) that might be replaced with deposition j j. excerpts. Intervenor, however, was unwilling to identify the portions of prior depositions that i i would be introduced unless Georgia Power would stipulate to their admissibility in advance.* - I Georgia Power again spoke with Intervenor on January 3. Intervenor stated that he be-j l lieves the testimony of Messrs. Schaudies, Whitney, Glenn, W. Evans, Proctor, Head, Henry, ' Scherer, Johnson, and perhaps Addison can be introduced through prior depositions or prior testi-l mony. Messrs. Meier and McCrary were also mentioned as possibilities. Intervenor stated, how-- ever, that he does not have time to identify the portions of the deposition transcripts that he would want introduced. Apparently, he is content to require these individuals to appear even if I no further testimony is needed. As a result, it appears that at least twelve individuals'are having _ l their schedules disrupted unnecessarily, and the time and resources of the Board and NRC Staff - are being wasted. Georgia Power has made additional efforts to resolve this matter. ' With respect to practi-cally all of the individuals whom Intervenor has indicated could be addressed through prior depo-sitions, Georgia Power has reviewed the prior records and has provided to Intervenor' all the ) l i excerpts which Georgia Power believes Intervenor may want (portions that Intervenor has cited in his summary disposition response and other pleadings), along with any additional pages that ap-l pear necessary to place the excerpts in context. Georgia Power has also provided excerpts for a number of additional witnesses whose testimony might be introduced in this same manner. Inter-venor has not yet responded. E Georgia Power told Intervenor that it believed it could agree to the introduction of deposition excerpts of the thirteen witnesses, provided Intervenor identifies the specific portions and Georgia Power is afforded the opportu- 'nity to propose any additional pages (on the same subject matter) needed to make the proposed excerpts complete. 4 or - w -, m 6- ,,m., , ', - - + -,- ,n s-

I: 1 , l Because Intervenor has failed to reciprocate in Georgia Powers efforts to work out a rea-~ sonable witness list, Georgia Power is compelled to oppose Intervenofs subpoenas The currentL i 1 number of witnesses remains excessive, and the prospect that over half are being called without .l

need is completely unreasonable. Certainly, the parties ought to be able to complete the hearing l

t on the transfer of control issue within two weeks. Intervenor's current proposal would make this - ~ impossible.2 Moreover, the subpoenas are also unreasonable because the testimony of'the wit- ' { nesses in question would be cumulative and duplicative. Each of the witnesses is ' addressed in l turn below: A.' Jesse Pc Schaudies ~ j . Intervenor states that Mr. Schaudies' testimony would be relevant to Issues 8,11,19 and - 27 ofIntervenofs Prehearing Statement ofIssues (" Statement ofIssues")~ Mr. Schaudies served I as outside counsel to Georgia Power during the Hphy and Mosbaugh Department of Labor pro ' ceedings. Apparently, Mr. Schaudies would be called to testify about how the SONOPCO Pro-ject Staff was selected. Any information Mr. Schaudies would have as former counsel to Georgia Power regarding this topic would be derived from, duplicative of, and indeed less complete than l that which Georgia Power officers or executives would have. Mr. Mcdonald has already testified L on this matter, and both Mr. McCoy and Mr. Hairston are available to be questioned, in addition to Intervenofs witnesses Hobby and McHenry. Mr. Schaudies' testimony would at best be cumu-lative, and the subpoena issued in his name should be quashed. I r Some of the witnesses also have conflicts on the dates specified in their subpoenas. Georgia Power has dis- ] l~ cussed these conflicts with Intervenor and has proposed alternative dates that we understand are acceptable to In- .) tervenor. The revised schedule is attached. The considerable' effort that Georgia Power has already made to l determine witness availability and propose alternative dates where conflicts exist does not lessen the unreasonable-j ness ofIntervenor's witness list or detract from this motion to quash. l 5 i ) i

y B. Charles Whitnev Intervenor states that Mr. Whitney's testimony would be relevant to Issues 1-4 and 14B of ^I Intesvenor's Statement ofIssues. The only indicia ofMr. Whitney's potential testimony is a 1989 memorandum to Mr. Whitney fmm Dave Townley which, Intervenor asserts, " demonstrates that Dahlberg was presented with a high level comparison of SONOPCO's cost as compared with the - _l nuclear industry average...._ Significantly, the memo states that the nuclear budget was pre-J pared by 'SONOPCO' and 'shown' to Georgia Power." Intervenor's Response to Motion to Strike l at 16-17 n.10 (emphasis in original). Intervenor erroneously asserts that this memo is fmm Mr.- I Whitney, and perhaps this in part explains why Intervenor has subpoenaed Mr. Whitney. In fact, .i not only is Intervenor's basis for obtaining the subpoena flawed, information regarding Mr. Dahl- ' 1 1 ' berg's involvement in the budget process and what he knew about budgets at relevant times are ') I coniained in Mr. Dahlberg's testimony. Sm Dahlberg Pre-Filed Testimony at 9-11; Tr.' 1079, l I I 1098-1100,1158,1177-78,1181,1212-13,1239-41,1246J Thus, the subpoena for Mr. Whitney I should be quashed as unreasonable and duplicative.' C. Edward Addison ~ j Intervenor states that Mr. Addison's testimony would be relevant to Issues 10-12,17,22, 26 and 28 ofIntervenor's Statement ofIssues. Specifically, Intervenor likely wants Mr. Addison to testify regarding the following allegations made by Intervenor:

1. A purported agreement between Mr. Addison and Mr. Farley "that Mr. Farley would emerge as the chief executive of a Southern Company nuclear operating subsidiary," that Mr. Farley could staff SONOPCO, and that SONOPCO would be located in Birmingham (Statement ofIssues at 3,- 35);

6 i

lu y i '2. References in Mr. Addison's and Mr.'Dahlberg's calendars to "SONOP' O. pro- [ C ject board" meetings (Ld at 4); and ~ i 9

3. Statements by Mr. Addison to Mr. Dahlberg regarding approval of the l

SONOPCO budget (hL at 33).. All this information is available from Messrs. Farley and Dahlberg,.who are testifying at. the hearing.. Sm Pre-Filed Testimony ofMri Farley and Mr. Dahlberg. Mr. Addison's testimony ~ would only be duplicative and cumulative of that testimony, and therefore, the subpoena issued ' I for Mr. Addison should be quashed.- D.. William Shioman j i .l Intervenor states that Mr. Shipman's testimony would be relevant to Issues 3-7 and 19 ~ ofIntervenor's Statement ofIssues. In particular, it appears that Inte:venor wants Mr. Shipman - to testify regarding: (1) whether Mr. Hairston advised Mr. Shipman that Mr. Farley was briefed about the performance of Georgia Power's and Alabama Power's nuclear units; and (2) whether L Mr. Mcdonald reported to Mr. Farley as part of the " reporting relationship" at the SONOPCO project. Intervenor's Response to Georgia Power Company's Motion for Summary Disposition of-Intervenor's Illegal Transfer of License Allegation ("Intervenor's Response to Motion for Sum-mary Disposition") at 20,33,43, and 46. Both of these issues may be addressed in the testimony of the people directly involved in these matters, specifically, Messrs. Hairston, Farley and McDon- - ald. Mr. Shipman's testimony would merely be cumulative and less probative, and thus the sub-i poena issued against him should be quashed. 1 7 p I

i l-l i E. Kerry Adams Intervenor states that Mr. Adams' testimony would be relevant to Issues 13,14A and.14B - ofIntervenor's Statement ofIssues. On the Dec. 19,1994 Telephone Conference Call, Interve-nor stated that Mr. Adams would be called to testify about Georgia Power's Management Council and the Nuclear Operation Contract Administration. Tr.10041. Messrs. Dahlberg, who headed the Management Council, and Mcdonald, who was a member of the Management Council, have already testified at some length on the Management Council. Tr. 1075-84,1088-1101 (Dahl-berg); Tr. 1373,1396-1406,1443-45 (Mcdonald). They have also both testified on NOCA. Dahlberg Prefiled Testimony at 12-14; Mcdonald Prefiled Testimony at 17; Tr. I190-1205 (Dahl-berg); Tr. 1479-87 (Mcdonald). In addition, Mr. Hobby will be providing testimony on NOCA.. Thus, Mr. Adams testimony would only be cumulative. Accordingly, Mr. Adams' subpoena should be quashed. l F. Gradv Baker l Intervenor states that Mr. Baker's testimony would be relevant to Issues 8,11-14B and l 21-22 ofIntervenor's Statement ofIssues. In particular, Inteivenor wants Mr. Baker to testify i that: (1) Mr. Farley did not respond to Mr. Baker's request that Mr. Mcdonald be named execu-tive vice-president of Georgia Power (Intervenor's Response to Motion to Strike at 10); (2) Mr. Mcdonald became an officer of Georgia Power in order to operate its nuclear plants until SONOPCO was formed (R at 14); and (3) the relationship between Georgia Power and Alabama + l l Power within the Southern Company was "not good" (Intervenor's Response to Motion for Sum - mary Disposition at 10). None of this information appears relevant or material. In any event, i l l 8 -,y

7 L 'l both Mr. Farley and Mr. Mcdonald are available as witnesses, and it would be an unnecessary du-i plication of effort to involve Mr. Baker as well. Accordingly, Mr. Baker's subpoena should be I quashed. j 1 G. Dwinht Evans - l l Intervenor states that Mr. Dwight Evans' testimony would be relevant to Issues 9 and. 14A-B ofIntervenor's Statement ofIssues. In essence, it appears that Intervenor wishes to call L -l .( Mr. Evans to testify coreirJeg an August 10,1989 meeting between Mr. Dahlberg and Mr. 1 'I Mcdonald to discuss whether alternative performance standards should.be developed.; Both Mr. I Mcdonald and Mr. Dahlberg have already testi6ed about this meeting. 'See Prefiled Testimony of l William Dahlberg at 17; Prefiled Testimony of R. Patrick Mcdonald at 15-16; Tr. I 104-05, - i l109-10 (Dahlberg); Tr. 1500,1504 (Mcdonald). In addition, Intervenor apparently plans to l ~ q question Mr. Evans regarding the functions of Georgia Power's Management Council. Messrs. j Dahlberg and Mcdonald have also provided considerable testimony on this topic. Thus, Mr. l Dwight Evans' testimony is cumulative and unnecessary His subpoena'should also be quashed. l 1 [ H. Lee Glenn L Intervenor states that Mr. Glenn's testimony would be relevant to Issue 11 ofIntervenor's l Statement ofIssues. Speci6cally, Intervenor wishes Mr. Glenn to testify about Marvin Hobby's l concern about difficuhy of transferring Mr. Barker from the SONOPCO Project to NOCA, and Mr. Glenn's alleged statement that Mr. Farley would "make the call." Mr. Glenn, however, has no - l l personal knowledge that Mr. Farley had any involvement regarding Mr. Barker's requested trans-I fer, and that the transfer issue being discussed by upper management was a general issue not - l l 9

i l specifically relating to Mr. Barker. Hobby DOL Tr. at 518-23. Mr. Glenn's testimony therefore is speculative and has little relevance. In any event, Mr. Farley, Mr. Barker, Mr. Hobby, and Mr. Dahlberg (who personally' discussed the transfer with Mr. Barker and made the decision) are able l ' to provide an ample record on this' issue if any significance is discernible. Accordingly, Mr. l Glenn's subpoena should be quashed. ] 1 I. William Evans i Intervenor states that Mr. William Evans' testimony would be relevant to Issues 11 ofIn ' tervenor's Statement ofIssues. In particular, Intervenor wishes Mr. Evans to testify about Mr. i i I Farley's control of NOCA staffing. Statement ofIssues at 21. As far as Georgia Power can dis-cern, Mr. Evans is wanted only to bolster the testimony of Mr. Glenn on the issue discussed. .l l above. For the same reasons stated above, Mr. Evans' testimony is not only cumulative and dupli - l cative but also oflittle relevance. Accordingly, Mr. William Evans' subpoena should be quashed. J. John Meier Intervenor states that Mr. Meier's testimony would be relevant to Issues 19-21 ofInterve-l nor's Statement ofIssues and " pertaining to December 1994 deposition". Intervenor's Motion for l Issuance of Subpoenas at 2. This description is too vague to establish even general relevance. Georgia Power surmises that perhaps Mr. Meier is being called to discuss the early task force l studies and recommendations concerning the formation of the SONOPCO Project. Numerous other witnesses, including Mr. Mcdonald, Mr. Farley, and Mr. Hairston, can provide this infor- - mation. Mr. Meier's subpoena should be quashed. 10 ~ l

. ~. -. - - 7-q i' i i-K. Robert Gilbert 1 L 1 i j . Intervenor states that Mr. Gilbert's testimony would be relevant to Issues 11,12 and l'9 of .j I Intervenor's Statement ofIssues.- On the Dec. 19,' 1994 telephone conference call, Intervenor. stated that Mr. Gilbert would testify about budgeting matters and his role at SONOPCO and the functioning of Nuclear Operation Contracting Administration. Tr. 10069-70. These topics have.' j already been addressed by Mr. McDanald and Mr. Dahlberg, and Mr,- Hobby will be available to L provide furtherinformation. The general information that Intervenor apparently intends to elicit ' ] .would appear to have little if any value and to be at best cumulative. Mr. Gilbert's _ subpoena'- . should therefore be quashed !-l i L. Jane Henry l Intervenor states that Ms. Henry's testimony would be relevant to " Issues pertaining to ' j December 1994 deposition." Intervenor's Motion for Issuance of Subpoenas at 2. Jane Henry. I was the editor of the Synopsis newsletter, and unlikely to have any direct personal knowledge of 1j probative value. Presumably, Intervenor is interested in several interviews ~ ith Mr; Farley. Mr. w Farley, however, will be available to address any questions concerning statements attributable to him. Ms. Henry's subpoena should be quashed. M. Donald Proctor Intervenor states that Mr. Proctor's testimony would be relevant to Issue 9 ofIntervenor's Statement ofIssues. Mr. Proctor previously testified at the Hobby DOL proceeding that (1) shortly afterjoining NOCA he became concerned that the SONOPCO project was not cooperat-ing with his " interface" efforts, (2) Hobby informed him to attended a meeting set up by Mr. 11 I-u -~.

Hobby with Mr. Williams to discuss "a list ofinterfaces," (3) in the meeting Mr. Williams asked i why those interfaces needed to be performed in Atlanta rather than at the~ SONOPCO Project in j Birndngham, and (4) Mr. Proctor thought that Mr. Williams was making a good point by asking ] l that_ question. Hobby DOL Tr. 781-85. Mr. Mcdonald has already testified concerning his view of NOCA (Tr, 1479-87), and Georgia Power sees no point to any additional testimony from Mr, Proctor. Therefore, Mr. Proctor's subpoena should be quashed. j j N. Georae Head Intervenor states that Mr. Head's testimony would be relevant to Issues 8 and 11 ofInter-venor's Statement ofIssues. In particular, Intervenor would have Mr. Head testify concerning (1) a memo signed by himself and Mr. Hobby raising issues relating to the source ofMr. Mcdonald's supervision, and (2) a meeting in which Mr. Dahlberg purportedly told Mr. Head that he could not resolve a matter concerning the SONOPCO Project's cooperation with NOCA until he met with Mr. Farley. Statement ofIssues at 5-5. With respect to the first issue, Mr. Head testified in the Department of Labor proceeding that he signed the memo prepared by Mr. Hobby to help Mr. Hobby get Mr. Hobby's concerns resolved, and Mr. Head indicated that he did not share Mr. Hobby's concerns. Hobby DOL Tr. 648. This information would not support Intervenor's case. With respect to the second issue, Mr. Dahlberg has already testified in this proceeding about a discussion with Mr. Farley about NOCA. Tr. 319-20. Mr. Farley is also able to testify on his dis-cussions with Mr. Dahlberg. Thus, Mr. Head's testimony appears immaterial and cumulative, and his subpoena should be quashed. 12

o. q i O. Robert Scherer: j ~ l Intervenor states that Mr. Scherers testimony would be relevant to Issues 1,2,11 - and 27 I ofintervenofs Statement ofIssues. Specifically, Intervenor wants Mr. Scherer to testify regard, l l ing whether Mr. Mcdonald reponed to Mr. Scherer during a cenain period (a few months in. j 1988, before Mr. Scherer retired as Georgia Powers CEO), and whether Mr.' Farley was to func-- i tion as CEO of SONOPCO. Statement ofIssues at 9,13,36. These issues are addressed in the t testimony of Messrs. Mcdonald and Farley. Tr.,1398-99 (Mcdonald). Sag nenudly Farley Pre - fded Testimony. Mr. Scherefs testimony is thus cumulative and his subpoena should be quashed. i P. Gerald Johnson i Intervenor states that Mr. Johnson's testimony would be relevant to Issues 9 and 14B of { l Intervenor's Statement ofIssues. Speci6cally, Intervenor wants Mr. Johnson to testify concerning whether Georgia Power approved the 1990 nuclear budget. $gs Statement ofIssues at 7-8,33. f This testimony would only be cumulative to the testimony of other witnesses, such as Messrs. l I Farley and Dahlberg. San Pre 61ed Testirnony of William Dahlberg at 9. Accordingly, Mr. John-son's subpoena should be quashed. Q. Louis B. Lona J Intervenor states that Mr. Long's testimony would be relevant to Issues 15,16,19-21 and 27 ofIntervenor's Statement ofIssues. In particular, Intervenor would likely have Mr. Long tes-tify regarding intervenor's allegations that: (1) Mr. Farley had de facto authority to act as CEO of SONOPCO prior to its incorporation; and (2) Southem Company represented to the NRC that I SONOPCO would only operate as a separate entity after its incorporation, and did not seek NRC 13

.. ~.... _. ~.. -.,. -

-l

3 '.

I or SEC approval to operate. Statement of Issues at 4, 36-37; Intervenor's Response to Motion for Summary Disposition at 17. The second issue has already been dismissed in the Board's j 3 Memorandum and Order (Summary Disposition: Illegal Transfer Investigation), LBP-94-37 (Nov. .l .) 8,1994) at 30-31, and therefore is irrelevant. The information concerning Mr. Farley may be ex-l plored with Mr. Farley and numerous other witnesses (Messrs. Dahlberg, Mcdonald, McCoy, and l Hairston)'with far greater and more direct knowledge ofMr. Farley's role.; Further testimony j j from Mr. Long would be unnecessarily repetitive or~ merely cumulative, and thus his subpoena j should be quashed. I R.. Charles McCrary -{ Intervenor states that Mr. McCrary's testimony would be relevant to Issues 15,16,19-21,.

J

' 27 ofIntervenor's Statement ofIssues and "penaining to December 1994 deposition." Interve- - 'l ? t . nor's Motien for Issuance of Subpoenas at 2. Presumably, Intervenor wants Mr. McCrary to tes-i tify regard'ag Mr. Farley's duties within SONOPCO, spM%Hy Mr. Farley's role in appointing - and/or supervising Mr. McCrary. San Intervenor's Response to Motion for Summary Disposition - at 44-45. This information is available from Mr. Farley; indeed, Mr. McCrary likely has little first-l 1 l hand information concerning his own appointment to a panicular position. Thus, Mr. McCrary's ' j i testimony would be unreasonable or at least duplicative, and his subpoena should be quashed. l l S. Warren Jobe Intervenor states that Mr. Jobe's testimony would be relevant to Issue 14B ofIntervenor's Statement ofIssues. This issue relates to the budget review function of the Georgia Power Man-agement Council. As addressed previously, Messrs. Dahlberg and Mcdonald have testified - 14 i l. b

il regarding the management Council's review of Georgia Powers nuclear operations budget during the relevant time frame and, thus, Mr. Jobe's testimony on this topic is merely duplicative. - Ac-cordingly, his subpoena should be quashed. j T. JeffWallace 1 Intervenor states that Mr. Wallace's testimony would be relevant to Issue 14B ofInterve- - ) nofs Statement ofIssues. Intervenor presumably wants Mr. Wallace to testify regarding the l source ofbudget approval for Georgia Powers nuclear operations. Sg Intervenofs Response to Motion for Summary Disposition at 31-32,51. This issue is addressed directly in Mr. McDon-ald's and Mr. Dahlberg's testimony. Sn Mcdonald Pre-Filed Testimony at 14-15; Dahlberg Pre-l filed Testimony at 9; Tr.1239-41 (Dahlberg); Tr. 1394-1406 (Mcdonald). Because this l information is obtainable from Mr. Mcdonald's testimony, the testimony of Mr. Wallace would be duplicative and cumulative. Thus, Mr. Wallace's subpoena should be quashed. III. The Subpoenas Have Not Been Properly Served { The subpoenas should also be quashed because they have not been properly served. Un-der 10 C.F.R. 2.720(c), service of a subpoena must be made by delivery to the person named in i it and by tendering the fees for one day's attendance and mileage. The subpoenas in question have l not been personally delivered (as the rule is understood to require), and there has been no tender of the requisite fees. 10 C.F.R. Q 2.720(c) is patterned after the Federal Rules of Civil Procedure and is nearly identical to Fed. R. Civ. P. 45(b)(1)." Like 10 C.F.R. 2.720(c), Rule 45(b)(1) requires that E Prior to 1991 amendments, the text of the current Fed. R. Civ. P. 45(b)(1) was found in subsection (c) of Rule

45. Thus, applicable case law prior to 1991 refers to Fed. R. Civ. P. 45(c).

15

6 i subpoenas be served "by delivery " The majority view, and indeed the weight of authority, inter- ) i prets this provision as requiring " personal delivery." 5 A Moore's Federal Practice Digest states " Service is accomplished by personal delivery to the person named in the subpoena." Moore's Federal Practice Digest, 45.05[1] (2d ed.1994). Wright and Miller similarly states, " Personal service is required." 9 C. Wright & A. Miller, Federal Practice and Procedure, Q 2461 (1971).E And the U.S. Court of Appeals for the District of Columbia Circuit has held that the rule "does not permit any form of mail service.. Thus, under the Federal Rules, compulsory process may be served upon an unwilling person only in person." F.T.C. v. Compagnie De Saint-Gobain-Pont-A-Mousson,636 F.2d 1300,1312-13 (D.C. Cir.1980). The last sentence of 10 C.F.R. j 2.720(c) also shows that the " delivery" means personal delivery. That sentence allows service of a subpoena by registered mail when a subpoena is issued on behalf of the Commission. If delivery by any means were permitted by the second sentence of section 2.720(c), this " registered mail" exception in the last sentence would be meaningless. Since E legal provisions should always be interpreted to give meaning to all terms, the special authority to serve by registered mail a subpoena issued on behalf of the Commission clearly implies that other subpoenas may not be served by registered mail.a' j I S_eg ghg Whitmer v. Lavida Charter.1%,1991 U.S. Dist LEXIS 17177 (E.D. Pa., Nov. 25,1991); Yizar v. Wiccins.1991 U.S. Dist LEXIS 5679 (N.D. Ga., April 18,1991); Khachikian v. BASF Com. 1994 U.S. Dist LEXIS 2881 at 2 (N.D.N.Y. March 4,1994); Benford v. American Broadcasting Co. Inc,. 98 FAD. 40,41 n.5 l (D. Md.1983); In re Johnson & Johnsgn,59 F.R.D.174,177 (D. Del.1973); Conanicut Imestment Co. v. Cocoers & 1.vbrand.126 FAD. 461,462 (E.D.N.Y.1992); Gillam v. A Shvman. Inc. 22 FAD. 475,479 (D. Ala.1958). Contra, Doe v. Hersemann.155 FAD. 630,631 (N.D. Ind. May 26,1994). & S_es Beck v. McElrath. 548 F.Supp. I161,1163 (M.D. Tenn.1982); Restatement (Second) of Contracts i 203 (1979). E This analysis is not affected by 10 C.FA i 2.712, which governs service of papers in general (such as the ex-change of pleadings betweer, the panics). Specific requirements in a regulation take precedence over general pro-l visions. lihan v Hamblin 72 BA 613,624 (D. Minn.1994). Further, section 2.712 is similar to Fed. R. Civ. P. j l 5, governing service of pleadings and other papers. Rule 5 has never been interpreted as climinating the more spe-cific service requirements in Rule 45. 16 l l

t In this case, the subpoenas issued on December 29,1994, were sent by Federal Express to the Troutman' Sanders offices in Atlanta. This mailing does not satisfy the personal delivery re-j quirement. Sm Reed v. Iowa Marine & Repair CoroL,1993 U.S. Dist. LEXIS 1107 (E.D; La. j u 1 - 1993) (Fed. R. Civ. P. 45 does not permit service of subpoenas by sending them Federal Express); j 1 In re Johnson & Johnson. 59 F.R.D.174 (D. Del 1973)(service to a registered agent for a corpo-. ration did'not fulfill requirement for personal service on individuals who also happened to bs offi cers of the corporation.).* i Intervenots subpoenas were alt.o not properly served because Intervenor failed to tender j the requisite fees for attendance and mileage. 10 C.F.R. f 2.720 unequivocally requires that such i fees be tendered as part of the service. This provision is taken verbatim from Fed. R. Civ. P. I q 45(b)(1), which has also been construed as requiring the simultaneous tendering of the fees.- Sub-i poenas tendered without such fees are invalid. CF&I Steel Corp. vl Mitsui & Col. Inc1, 713 F.2d. 494,496 (9th Cir.1983); Lona v. United States.1990 U.S. Dist. LEXIS 4180 (D. Colo. April 5, i 1990); 5A Moore's Federal Practice Digest,145,06[1](2d ed.1994); 9 C. Wright & A Miller,- Federal Practice and Procedure % 2461 (1971). l I I m The fact that the subpoenas were issued by the Licensing Board at Intervenor's request does not make them subpoenas issued on behalf of the Commission, f,1 Tedder v. Odel. 890 F.2d 210,212 (9th Cir.1989), and conse-quently service by registered mail was not an available method 17 i 1

III. Conclusion I i For all of the reasons stated above, the subpoenas issued on December 29,1994, should ' be quashed. Respectfully submitted, l w Ernest L. Blake, Jr. David R. Lewis i SHAW PITTMAN POTTS & TROWBRIDGE 2300 N Street, N.W. Washington, D.C. 20037 (202) 663-8000 ] James Joiner l John Lamberski TROUTMAN SANDERS I Suite S200 600 Peachtree Street, N.E. Atlanta, Georgia 30308-2216. ~ (404) 885-3360 Dated: January 6,1995 I l-I8 l

_1 l ) l- ) L Revised Witness Schedule l Hams Date Time ~ J. Schaudies -Jan.9-1:00 p.m.- j C. Whitney Jan.9 1:00 p.m. i i l - W. Shipman ' Jan.10 9:00 a.'m. j Grady Baker 'Jan.10 19:00 a.m.' l l f Dvdght Evans Jan.10 9:00 a.m. Kerry Adams Jan.10 1:00 p.m.. 'l Lee Glenn .Jan.10 1:00p.m. William Evt.ns -Jan.10 1:00 p.m. ~ John Meier - Jan.I1 9 00 a.m. l Charles McCrary Jan.I1 9:00 a.m. Robert Gilbert Jan.I1 1:00 p.m.~ i l Jane Hemy Jan.12 9:00 a.m. Donald Proctor Jan.12 9:00 a.m. I George Head Jan.12' 9:00 a.m.- Dan Smith Jan.12 1:00 p.m. I JeffWallace Jan.12 1:00 p.m. . Robert Scherer Jan.12-1:00 p.m. ] ~ Gerald Johw>n lJan.12 2:00 p.m. Louis Long - Jan.13 9:00 a.m. Warren Jobe Jan.13 .1:00 p.m. i l Edward Addison Jan.14 9:00 a.m. 1 lb302301IDOCSDCI I' i 19 l

4 00CKETED Jang%C1995 UNITED STATES OF AMERICA 95 'JAN 10 P4 :18 NUCLEAR REGULATORY COMMISSION OFFICE OF SECEE TARY Before the Atomic Safety and Licensing Board DOCKEllNG A SERVirE CRANCH .In the Matter of ) Docket Nos. 50-424-OLA-3 ) 50-425-OLA-3 GEORGIA POWER COMPANY, ) etal. ) Re: License Amendment ) (Transfer to Southem Nuclear) (Vogtle Electric Generating Plant, ) Units 1 and 2) ) ASLBP No. 93-671-01 OLA-3 CERTIFICATE OF SERVICE I hemby certify that copies of " Georgia Power Company's Motion to Quash Multiple Subpoenas," dated January 6,1995 wem served upon the persons listed on the attached service list by deposit in the U.S. Mail, first class, postage pmpaid, or whem indicated by an asterisk by hand delivery, this 6th day of January,1995. m L m David R. I.cwis Counsel for Georgia Power Company i i

R, l j o UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION I i Before the Atomic Safety and Licentina Board L i In the Matter of ) Docket Nos. 50-424-OLA-3 ) 50-425-OLA-3 GEORGIA POWER COMPANY, ) etal. ) Re: License Amendment ) ). (Transfer to Southem Nuclear) (Vogtle Electric Generating Plant, ) Units 1 and 2) ) ASLBP No. 93-671-01-OLA-3 SERVICE IlST Administrative Judge

Director,

• Peter B. Bloch, Chairman Environmental Pitnection Division Atomic Safety and Licensing Board Department of Natural Resources U.S. Nuclear Regulatory Commission 205 Butler Street, S.E., Suite 1252 Washington, D.C. 20555

. Atlanta, Georgia 30334 Administrative Judge Stewart D. Ebneter

• James H. Carpenter Regional Administrator, Region II Atomic Safety and Licensing Boartl U.S. Nuclear Regulatory Commission l

933 Green Point Drive 101 Marietta Street, N.W., Suite 2900 Oyster Point Atlanta, Georgia 30303 Sunset Beach, N.C. 28468 i Administrative Judge Office of the Secretary

• Thomas D. Murphy Att'n: Docketing and Service Branch l

Atomic Safety and Licensing Board U.S. U.S. Nuclear Regulatory Commission i Nuclear Regulatory Commission Washington, D.C. 20555 i Washington, D.C. 20555

• Michael D. Kohn, Esq.

Office of Commission Appellate Adjudication Kohn, Kohn & Colapinto U.S. Nuclear Regulatory Commission 517 Florida Avenue, N.W. Washington, D.C. 20555 Washington, D.C. 20001 I l i l I l

= l 4 i

• Mitzi A. Young, Esq.

Carolyn F. Evans, Esq. l

• Charles Banh, Esq.

U.S. Nuclear Regulatory Commission ' John T. Hull, Esq. 101 Marietta Street, N.W., Suite 2900 ' Office of the General Counsel Atlanta, Georgia 30323-0199 One White Flint Nonh Stop 15BIR i U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Adjudicatory File Atomic Safety and Licensing Board l U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 i 79369-F04 / DOCSDC1 j l l i I l l j}}