ML20080A635

Intervenor Motion to Reopen Discovery.* AL Mosbaugh Requests Board to Reopen Discovery on Illegal License Transfer Portion of Proceeding Under Listed Conditions.W/Certificate of Svc & Svc List

ML20080A635
Person / Time
Site:	Vogtle
Issue date:	10/24/1994
From:	Wilmoth M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20080A639	List: ML20080A635 ML20080A657
References
CON-#494-15851 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9411010228
Download: ML20080A635 (11)

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October 24, 1994 UNITED STATES OF AMERICA ) ?1j 3 NUCLEAR REGULATORY COMMISSION \g'

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ATOMIC SAFETY AND LICENSING BOARD g 4s }

Before Administrative Judges:

Peter B. Bloch, Chair

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$L OCT 2 5 0% 7s Dr. James H. Carpenter '

Thomas D. Murphy DOCKETING &

- sEnvicE BRANCH sEcy-NRt 4

)

In the Matter of ) g 9

) Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY ) 50-425-OLA-3 g1 al , )

) Re: License Amendment (Vogtle Electric Generating ) (transfer to Southern Nuclear)

Plant, Unit 1 and Unit 2) )

) ASLBP No. 93-671-01-OLA-3 INTERVENOR'S MOTION TO REOPEN DISCOVERY COMES NOW, Intervenor, Allen L. Mosbaugh, through counsel, and moves this Honorable Board to reopen and allow him to commence discovery on the illegal license transfer portion of this proceeding limited to the issues as set out below.

Intervenor makes this request for the following reasons.

I. Introduction  :

l When filing his petition to intervene in this proceeding )

Intervenor included as part of his factual basis the assertion .

I that Georgia Power Company ("GPC") made material I misrepresentations when responding to the 10 C.F.R S 2.206 petition filed by Messrs. Hobby and Mosbaugh.2 This proceeding has been bifurcated into two portions, illegal license transfer ,

and diesel generator reliability. Discovery on the illegal 2

Egg December 9, 1992 Amendment to Petition to Intervene )

and Request for Hearing at p. 17 (April 1, 1991 response contains i

" numerous verifiable material false statements"). I 9411010228 941024 i PDR ADOCK 05000424 g() l C PDR l

license transfer portion closed on April 29, 1994. Recently, however, Intervenor has learned, through correspondence between GPC and the NRC, that now, well after the close of discovery, GPC is acknowledging that it made yet another material misstatement to the NRC.

II. Discussion

1. New evidence has come to light well after the close of discovery.

The material misstatement involves the On-Call Project Manager List dated December 13, 1989, which is part of the Vogtle Project Emergency Planning Procedures. This is the procedure designating who is to be contacted in the event of an emergency at the plant site. Joseph Farley's name appears on the list as one of Georgia Power Company managers to be contacted during an emergency.

A letter dated March 30, 1994, from John Lamberski, counsel for Licensee, to Charles Barth, NRC Staff counsel, discussing the Plant Vogtle Procedure and the On-Call Project Manager list makes no mention of any inaccuracy in these procedures. (Copy attached as " Exhibit 1") Intervenor relied on this letter as an exhibit in its depositions on illegal license transfer and questioned deponents regarding it and the procedures. See Exhibit 1.

On April 6, 1994, Ken McCoy, Vogtle Project Vice President, testified at his deposition regarding the On-Call Duty Manager telephone list as follows:

Q: And if I understand what the on-call manager list is, if it was an emergency they would start contacting individuals on this list? l 2

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A: No. Taat's not what that is at all. That is simply a phone list that has all the relevant people.

Deposition of Charles K. McCoy, April 6, 1994 ("McCoy Dep.") at i

p. 43. ]

1 Mr. McCoy explcined that these procedures worked together in l the following manner. )

If you are a director of corporate response, ., you start down the checklist and you get to the checklist item No. 4 and it says, notify the appropriate Georgia ,

Power Company corporate management and brief them on the emergency. And what that means to all of our manacers is that you notify the next cerson un the ling in the Georgia Power cornorate manacer and thev -

manacement and they in turn brief - they contact the next Georgia Power management.

McCoy Dep. at p. 49 (emphasis added)

Mr. McCoy was questioned about the implementation of the procedure and how the managers on the list would be called during an emergency. He was specifically asked " [w] asn' t there an assumption that Mr. Farley would be contacted?" He replied:

Not.to my knowledge. I didn't have anything to do with that. If that was, that was some agreement between he and Mr. Mcdonald and Mr. Hairston, but it was not a part of our procedures nor was it my duty to contact him if I couldn't get ahold of any other Georgia Power management.

McCoy Dep. at p. 51 (emphasis added).

Mr. McCoy further testified that he might be able to infer that Mr. Mcdonald and Mr. Hairston were contacting Mr. Farley in the event of an emergency but that the telephone list was "not the telephone list for who is to be notified. That is a telephone list that is available to our managers that has 3

everybody's home phone numbers and all." McCoy Dep. at pp. 54-55, 59. He also stated about the procedures:

It does not relate in anyway to the nuclear side except that we were taking advantage of the existing procedures we have in the nuclear side to deal with a company procedure, a Georgia Power Company procedure on crisis management.

McCoy Dep. at p. 55.

At the close of discovery, the credibility of these statements by Mr. McCoy could be weighed against the documentary evidence on the actual Vogtle Project procedure, and, in particular against the admission contained in an April 1, 1991 response Georgia Power filed to the September 11, 1990 10 C.F.R. 52.206 petition filed jointly by Intervenor and Mr. Hobby. NRC Staff specifically advised GPC that this response had to be submitted under oath or affirmation. This April 1, 1991 Petition response admitted that:

Vogtle Project emergency planning procedures require the duty manager to notify senior corporate management, including both Mr. Dahlberg and Mr. Farley, in the event of a significant event at Vogtle. The actual ractice regarding notification is that the On-Call groject Manager or the Director of Corporate Response t

contacts Mr. Hairston or Mr. Mcdonald and then Mr.

Hairston or Mr. Mcdonald contacts Mr. Dahlberg and Mr.

Farley. .Of course, if such a event triggers the foregoing emergency notification procedures, then Mr. i Farley would also be notified. l April 1, 1991 letter to Mr. Thomas E. Murley, Director, Offic3 of Nuclear Reactor Regulation from Mr. R.P. Mcdonald, attachment 1 ,

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p. 12. (See Exhibit 2)

On August 30, 1994, however, Georgia Power Company's Executive Vice President, Mr. W. G. Hairston, III, advised NRC's 4

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Office of Nuclear Reactor Regulation that GPC had, in fact, made a misstatement with respect to the procedures to be employed in the event of an emergency identified in the April 1, 1991 2.206 response:

The purpose of this letter is to correct a statement made to the NRC concerning the Vogtle Project Emergency Planning Procedures contained in an April 1, 1991 transmittal to your office. Specifically, on page 12 of attachment 1 of an April 1, 1991 letter to Mr.

Thomas E. Murley, Director, Office of Nuclear Reactor Regulation from Mr. R. P. Mcdonald, Executive Vice President - Nuclear Operations of Georgia Power Company concerning a 10 C.F.R. 2.206 petition filed by Messrs.

Hobby and Mosbaugh.

August 30, 1994 letter from Hairston to Russell, at p. 1 (Copy attached as " Exhibit 2")

This letter gives notice that when GPC responded to the S2.206 petition its statement regarding Vogtle Project emergency planning procedures was not accurate in that, as stated, the procedure required " senior corporate management, including both Mr. Dahlberg and Mr. Farley" to be notified "in the event of a significant event at Vogtle." Id.

dn September 2, 1994 Licensee's counsel advised NRC Staff's counsel that, as a result of the August 30, 1994 letter, statements made by Georgia Power's counsel in its March 30, 1994 letter (Exhibit 1) falsely set forth information pertaining to the procedures employed by the duty manager. September 2, 1994 letter from Lamberski to Barth (Copy attached as " Exhibit 3").

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2. It is reasonable to reopen discovery limiting it to a precise issue.

a. Reopening discovery in face of new evidence.

When new evidence comes to light well after the close of discovery, it is reasonable to reopen discovery. Vernon Village.

Inc. v. Gottier, 755 F.Supp. 1142, 1156 (D. Conn. 1990) The facts in Vernon Village are similar to the case at hand. In Vernon Village, the court allowed for the reopening of discovery concerning the limited issue of the precise level of contamination of the plaintiff's water at the time the lawsuit was filed. Id. This was allowed because the plaintiff became aware of a letter concerning this issue "well after the completion date for discovery." Id. The court allowed for the depositions of the persons who wrote and received the letter and for the production of documents related to the letter. Id.

Georgia Power's statements concerning the accuracy of its emergency procedures, made after the close of discovery, are new evidence of material misstatements that warrants discovery to be reopeded limited to this issue.

The record clearly indicates that Intervenor did not fail to pursue discovery on this issue in the face of a discovery cut-off and therefore he should not be prejudiced by the Georgia Power's twelfth hour recantation. Rosario v Livaditis, 963 F.2d 1013 (7th Cir. 1992) 6

pp-- i l

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b. Factors relevant in determining whether to reopen discovery.

i The decision to reopen discovery is committed to the sound l 1

discretion of the court. Ponfqpel v. U.S., 138 F.R.D. 579, 585 (D.Kan. 1991) Among the factors the court should find relevant l in making the determination whether to reopen discovery are l l

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whether trial is imminent; whether the request is l opposed; whether the nonmoving party would be  ;

prejudiced; and whether the moving party was diligent  ;

in obtaining discovery within the guidelines established by the court and the likelihood that the discovery will lead to relevant evidence.2 Id.

By expediting Georgia Power's responses to discovery, there should be ample time to complete discovery on this single issue before the hearing, scheduled to commence on December 19, 1994.'

GPC knew or should have known at the time the hearing was scheduled that this matter could become ripe for discovery and, as such, any minor delay in the schedule should have been foreseeable and anticipated.

This motion is sure to be opposed by GPC, however, GPC is already in total control of the documentation and facts and cannot be prejudiced by Intervenor's learning what it already knows. Conversely, it is GPC who has prejudiced Intervenor's 2

Another factor listed but which does not apply when dealing with the uncovering of new evidence is the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court. Ropfocel, 138 F.R.D. at 585.

The discovery call also be relevrt to the diesel generator issue as it could help establish Intervenor's contention that Licensee has engaged in a continuing pattern of providing NRC with misleading information.

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F case by not revealing until five months after the close of discovery that documentation prepared by GPC and submitted to NRC under oath is false. As stated above, Intervenor was particularly diligent in obtaining discovery on this issue.

Finally, discovery on this issue has a high likelihood of leading to relevant evidence as to material misstatements by GPC.

3. Intervenor's presentation of his case will be harmed if discovery is not reopened.

Intervenor believes that Georgia Power's change in position regarding the accuracy of Vogtle Project procedures is an acknowledgment of a material misstatement, and that this misstatement is of direct significance to Intervenor's case alleging illegal license transfer and a continuing pattern of intentional misleading statements to NRC. It directly effects evidence which Intervenor developed during the course of discovery and which he intended to rely upon in building his case. Intervenor also advances that, without further inquiry, it is impossible to determine which statement is a misstated, (i.e.

the 53.206 response or Mr. Hairston's letter of August 30, 1994)

Because this new information was released months after the close of discovery, Intervenor has been deprived of conducting discovery. Intervenor's presentation of his case will suffer harm since the record on this cortion of the proceeding will not be adequate or complete.

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IV. Relief For the foregoing reasons Intervenor requests this Honorable Board to reopen discovery on the illegal license transfer portion of this proceeding under the following conditions:

1. Discovery shall be limited to the issue of the material misstatement concerning the Vogtle Project Emergency Planning Procedures;

2. Georgia Power Company shall immediately produce in the office of it Washington, D.C.

counsel a copy of all relevant procedures from 1988 to present, as well as the " blue folder" and other documents concerning the issuance of the August 30, 1994 letter to the NRC; should identify the individuals who drafted the procedures and the August 30, 1994 letter to the NRC;

3. Within 5 days of receipt of the documents identified in (2) above, Intervenor shall 9

file one set of written discovery (document requests and interrogatories) and Licensee must responded to the requests within five r

(5) (courtesy copies of discovery requests and responses are to be filed by fax);

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3. Within five (5) days of the close of written discovery, Georgia Power should produce, at the office of its Washington, D.C. counsel, f 9

Mr. McCoy, Mr. Hairston and any other persons involved with the implementation of Vogtle Project procedures for deposition identified by Intervenor. 1 1

1 Respectfully submitted, MA [') 2 d f/) b 3 MidhaeyD'/ Kohn Mary Jane / Wilmoth Kohn, Kohn and Colapinto, P.C.

517 Florida Ave., N.W.

Washington, D.C. 20001 (202) 234-4663 Attorneys for Intervenor

=============================_=======================

CERTIFICATE OF SERVICE I hereby certify tha- Intervenor's Motion Reopen Discovery was served via facsimile (or via first class mail, where indicated by an asterisk "*"), on October 24, 1994 upon the persons listed in the attached Service List.

f By: OA A _ /} dat) f _,12  %

Mary J W'ilid6th -'

Dated: October 24, 1994 C:\ FILES \301\BRIEF. DIS i

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% du DOOKETED /

co UNITED STATES OF AMERICA  ; OCT 2 5199tt K '

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NGCLEAR REGULATORY COMMISSION g G 7 E ATOMIC SAFETY AND LICENSING BOARD SECY NRG q, S

) g y In the Matter of )

) Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY ) 50-425-OLA-3 31 al., )

) Re: License Amendment (Vogtle Electric Generating ) (transfer to Southern Nuclear)

Plant, Unit 1 and Unit 2) )

) ASLBP No. 93-671-01-OLA-3 SERVICE LIST Administrative Judge + Administrative Judge Peter B. Bloch, Chair James H. Carpenter Atomic Safety and Licensing Board 933 Green Point Drive U.S. Nuclear Regulatory Commission Oyster Point Washington, D.C. 20555 Sunset Beach, NC 28468 Administrative Judge Charles A. Barth, Esq.

Thomas D. Murphy Office of General Counsel Atomic Safety and Licensing Board U.S. N.R.C U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 John Lamberski, Esq. Ernest L. Blake, Jr.

Troutman Sanders David R. Lewis Suite 5200 SHAW, PITTMAN, POTTS &

600 Peachtree Street, N.E. TROWBRIDGE ,

Atlanta, GA 30308-2216 2300 N Street, N.W.

Washington, D.C. 20037

+0f fice of the Secretary Attn: Docketing and Service U.S. Nuclear Regulatory Commission Washington, D.C. 20555 (,fMo h 4dE/ kX) e office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C. 20555 301\ cert.lis i

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