ML20080C972

Intervenor Motion Subponea Duces Tecum.* Requests Subpoena Be Issued to Have Gpc,Southern Company Services & Southern Company Appear at Illegal License Transfer Hearing on 950104.W/Certificate of Svc & Unsigned Subpoena

ML20080C972
Person / Time
Site:	Vogtle
Issue date:	12/19/1994
From:	Wilmoth M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	Atomic Safety and Licensing Board Panel
References
CON-#494-16118 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9412220116
Download: ML20080C972 (8)

Text

/5He' December 19, 199 3I y 3

UNITED STATES OF AMERICA . O NUCLEAR REGULATORY COMMISSION '

000 6 ATOMIC SAFETY AND LICENSING BOARD -

OL DEC 191994 In the Matter of

)

)

F DOCKETWG &

SErmcESTtNG g UNRO

) Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY ) 50-425-OLA-3 s g 31 i , ) 6

) 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 SUBPOENA DUCES TECUM Pursuant to 10 C.F.R. S2.720 (a) , Intervenor, Allen Mosbaugh moves the Licensing Board te sue a subpoena to a custodian of records of Georgia Power Company, Southern Company Services and to The Southern Company to appear at the illegal license transfer hearing on January 4, 1995 and to produce the following documents:

1) SONOPCO Project detail Telephone Billing Reports covering the dates November 1, 1988 through January 1, 1991 for Messrs. Mcdonald, Hairston, McCoy and Dahlberg;

2) The Georgia Power Company Management Council attendance and agenda records including any notes of discussion pertaining to nuclear operations and Budget for the time period of May 1, 1988 through January 1, 1991; and

3) The Southern Company Management Council (or its predecessor's) attendance and agenda records including any notes of discussion pertaining to nuclear operations and Budget for the time period of March 1, 1988 to January 1, 1991.

Said Custodian of Records should be prepared to testify as to the authenticity of said documents and have first hand 9412220116 941219 PDR 0 ADOCK 05000424 PDR y60 3

E. .

knowledge pertaining to the preparation and maintenance cNE said-l

. documents.

I I. ARGUMENT A. The Reauested Documents Are Necessary Discovery requests are covered under the provisions set forth in 10 C.F.R. 2.720. Section 2.720(a) indicates that a Licensing Board "will issue subpoenas requiring the attendance and testimony of witnesses or the production of evidence" and "may require a showing of general relevance" but "shall not attempt to determine the admissibility of evidence."2 This regulation is similar to the requirements of Rule 45 of the, Federal Rules of Evidence. Under Fed.R.Civ.P. Rule 45 the scope of material obtainable by subpoena encompasses documents are as broad in scope as the documents that could have been requested i

10 C.F.R. 52. 270 (a) (emphasis added) states as ,

follows:

On application by any party, the designated presiding officer...will issue subpoenas requiring the attendance and testimony of witnesses or the production of evidence. The officer to whom application is made may l require a showing of ceneral relevance of the testimony i or evidence sought...

I There is no requirement under the applicable regulations that a party, whea requesting a subpoena for the production of I evidence, make a showing of good cause as to why the evidence was I not obtained through discovery. Intervenor is not required to make any showing other than one of general relevance. i Nonetheless, if Intervenor was required to make a showing of good )

cause as to why documents should be produced for hearing, he i could still do so. These documents are essential in presenting I Intervenor case and in creating an adequate hearing record upon i which the Board can make its determination; and the documents l were made essential to this proceeding as a result of the Board's l November 9, 1994 order which restructured Intervenor's presentation of his case.

2

during discovery. Jackson v. Brinker, 147 F.R.D. 189, 193-94 (1993), citing Fed.R.Civ.P. 45 advisory committee no co the 1991 amendment, 28 U.S.C.A. Rules 38-50, p. 402 (1992).

In sum, if a document is relevant, not privileged, and .

likely to lead to admissible evidence, they are obtainable by way.

of subpoena. Egg Japkson v. Brinker, Supra.2 B. The Documents Recuested Are Relevant and Reasonable The documents requested are limited in scope as they pertain only to evidence Intervenor believes to be relevant and necessary to adequately and completely present his case, and they are not privileged. In this regard, the SONOPCO Project detail Telephone Billing Reports for Messrs. Mcdonald, Hairston, McCoy and Dahlberg are non-privileged documents relevant as to whether Mr.

Dahlberg was contacted on a daily basis by the GPC nuclear ,

operating officers concerning the status of GPC nuclear plants. I Egg Intervenor's Prefiled Issues pp. 47-48 (Issue 23). These telephone records are essential to create a full and adequate 2

It should be noted that the scope and reasonableness of the documents requested in the subpoena demonstrate that Licensee could not meet 10 C.F.R. S 2.720 (f) , the requirements governing the quashin0 af a subpoena. This Section provides that:

the Commission may: (1) Quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any matter in issue, or (2) condition denial of the motion on just and reasonable terms.

the request is reasonable in scope; allows for a reasonable period of time for compliance; are not unduly burdensome; and requests specific documents that are relevant to specific issues to be litigated during the hearing. As such, Licensee could not meet the burden required to quash the subpoenaed documents.

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m j '. record on this' issue and'are limited;in scope to includelonit the-

< dates.necessary for.Intervencr to present his case.

, The Georgia ~ Power' Management Council records are non-privileged documents relevant to thel issues pertaining to the

. Management Council's' oversight function; its policy setting.

function; and to understand the reporting relationships within'

~.

the company. Sag Intervenor's Prefiled Issues pp. 19-22 (Issue.

8); pp. 29-30 (Issue 13); pp. 30-31 (Issue 14A); pp. 31-34 (Issue 14B). The request is specifically tailored to the dates necessary for Intervenor to present his case.

The Southern Company Management. Council records are likewise non-privileged and are relevant to demonstrate.the role played by

-The Southern Company Management Council with respect-to issues' pertaining to the control, management and oversight of nuclear operations,. including the; preparation and review of the-nuclear budget. Egg Intervenor's.Prefiled Issues pp. 1-8 (Issue-1); pp.

4 18-19 (Issue 7); pp. 34-38 (Issue 15);.pp. 39-40 (Issue 17). The requested documents are.likewise specifically tailored in scope-

! to the dates necessary for.Intervenor to.present his case.

II. Conclusion Intervenor has shown that the requested documents are.non-privileged; that they are necessary and relevant to this proceeding; that they are essential to the creation of a full and'

' adequate. record in this proceeding; and limited in scope and otherwise tailored to the' issues to be litigated. For the above 4

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~ '

b, s

.. " stated rea's ns, Intervenor requests'this Honorable Board to, grant

, s LIntervenor's Motion and issue'the requested Subpoena-Duces Tecum.

Respectfully.' submitted, A4+] 'StXtYh%

)Michab D. Kohn i"

' Mary. Jane Wilmoth..

Kohn, Kohn & Colapinto, P.C.-

... 517' Florida ~ Ave., N.W.

Washington,TD.C. 20001 (202) 234-4663 CERTIFICATE OF SERVICE I hereby certify that the above. motion was served vi'a first class mail on December 19, 1994, upon the persons l'isted in the attached Service List (additional service by Fax is indicated by

.),

j; By: b0GAvbhTsl/)

Mary Ja/nv Wilmoth n.h r

~

KOHN, KOHN & COLAPINTO, P.C. .

517 Florida Ave., N.W.

Washington, D.C. 20001 (202) 234-4663 Bi\301\susof 5

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l-December 19, 1994-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

) Docket Nos. 50-424-OLA-3

' GEORGIA POWER COMPANY ) 50-425-OLA-3 at. . AL., )

) Re

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

Plant, Unit 1 and Unit 2) )

) ASLBP No. 93-671-01-OLA-3 i-SUBPOENA 1 In accordance with section 161(c) of the Atomic Energy Act, 42 U.S.C. S 2201 (c) and 10 C.F.R. 52.720, the custodian of records for 1) Georgia Power Company; 2) Southern Company Services; and

3) The Southern Company, with first hand knowledge pertaining to the authenticity, preparation and maintenance of the documents described below is hereby ordered to appear'at 9:00 a.m. on January 4,.1995 at Two White Flint North, 11545 Rockville Pike, Rockville, Maryland, Room T 3 B45 and produce.the following documents: (1) SONOPCO Project detail Telephone Billing Reports '

covering the dates November.1, 1988 through January 1, 1991 for Messrs. Mcdonald, Hairston, McCoy and Dahlberg; .(2) The Georgia Power Company Management Council attendance and agenda records' including any notes of discussion pertaining to nuclear operations and Budget for the time period'of May 1, 1988 through January 1, 1991; and 3) The Southern Company Management Council ,

(or its predecessor's) attendance and agenda records including I any notes of discussion pertaining to nuclear operations and Budget for the time period. of March 1, 1988 to January 1, 1991.

)

i

V5, ',~ ,

j a-

's on motion made promptly, and in any' event received on or u l

'Ebefore January 4,.1995, and on notice delivered'to Intervenor's '

counsel on or before that date, this Atomic Safety'and Licensing Board (or if the Licensing. Board is unavailable, the Commission) may. (1) quash or modify the subpoena if it is unreasonable or

' requires evidence not relevant to any matter or ' issue, or (2) condition denial of the motion on just and reasonable terms.

Y IT IS SO ORDERED.

Peter B. .Bloch, Chair Dated at Rockville, Maryland

-this day of , 1994. ,

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

) Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY ) 50-425-OLA-3 21 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

• Office of the Secretary Attn: Docketing and Service U.S.' Nuclear Regulatory Commission Washington, D.C. 20555 Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C. 20555 C:\ FILES \301\ CERT.LIS I