ML20080E055

Georgia Power Company Position Re Intervenor Subpoenas for Witnesses.* Advises That Board Should Exercise Authority to Require Showing of Relevance Before Issuance of Subpoena. W/Certificate of Svc & Svc List

ML20080E055
Person / Time
Site:	Vogtle
Issue date:	12/23/1994
From:	Lamberski J GEORGIA POWER CO., TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA
To:	Atomic Safety and Licensing Board Panel
References
CON-#195-16145 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9501100100
Download: ML20080E055 (9)

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4 DOCKETED December 23, 19k i

UNITED STATES OF AMERICA 94 DEC 27 P4 :18 l NUCLEAR REGULATORY COMMISSION i Before the Atomic Safety and Licensina BoardfTjU f F "r 77 i/J;Y

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000 . - UM 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) j (Vogtle Electric Generating ) l Plant, Units 1 and 2) ) ASLBP No. 93-671-01-OLA-3 J l

1 GEORGIA POWER COMPANY'S POSITION REGARDING INTERVENOR'S SUBPOENAS FOR WITNESSES I l

l Pursuant to the Licensing Board's request during the December 19, 1994 telephone conference, Tr. 10108, Georgia Power Company I hereby provides its position regarding the showing Intervanor must make before the Board should issue any subpoenas compelling the l attendance of witnesses for the hearing beginning January 4.

Because of the extraordinary number of witnesses being sought by Intervenor, and as long as Intervenor continues to insist on an  ;

unreasonable number, Georgia Power submits that the Board should exercise its authority to require a showing of relevance and a showing that the proposed testimony is not repetitious or cumulative, before any subpoena is issued.

Georgia Power believes that, as a threshold matter, Intervenor ,

must make "a showing of general relevance of the testimony . ..

I sought" before the requested subpoenas can be issued. Sae 10 C.F.R. S 2.720 (a) . This scans, at a minimum, Intervenor should be required to demonstrate that he expects each witness he wishes to subpoena to testify regarding matters that are relevant to the l

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3 issues that will be explored at the hearing. In order to demonstrate this, Intervenor should briefly summarize the testimony l he expects to elicit, and show the nexus between that testimony and Intervenor's statement of issues.

It is true that the Board need not always require a showing of general relevance of the testimony sought before issuing a subpoena, but may defer such a showing until such time as a motion to quash or modify the subpoena is filed. Egg Pacific Gas & ]

Electric Co. (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 N.R.C. 683, 698 n.22 (1979). The Board should not defer such a showing in this case, however, since Intervenor is well aware of l Georgia Power's concerns regarding the number of witnesses  ;

Intervenor has indicated he wishes to call at the hearing, and l

delaying the showing could adversely affect the schedule. In such circumstances, requiring Intervenor to make the showing of relevance at the time he seeks the subpoena would cause no i prejudice to Intervenor, and would ensure that the issue of the witnesses to be called at the hearing is resolved in as expeditious a manner as possible.

In addition to making a showing of general relevance of the  !

tastimony of each witness that Intervenor wishes to subpoena, Intervenor should also be required to make some demonstration of his need to have as many as forty-five witnesses testify in this matter. As part of its inherent authority over the conduct of ,

proceedings before it, a Licensing Board has the power "to limit the number of witnesses whose testimony may be cumulative," and "to 2

.y, I i

strike argumentative, reputitious, cumulative, or irrelevant >

l evidence." 10 - C. F.R. 5 2.757 (a) , - (b) . Egg also 10 C.F.R. $ 2.718; )

Statement of Policy on Conduct of Licensina Proceedinas, CLI-81-8, f 13 N.R.C. 452 (1981). In light of the Board's inherent authority i i

in this regard, and the number'of hearing days that the parties  :

have agreed upon, Intervenor should be expected and required to  !

demonstrate that his witnesses will not present . repetitious or i i

cumulative testimony. Since the witnesses who Intervanor intends }

i to subpoena do not have profiled testimony, it is again necessary {

i to require that Intervenor summarize the testimony he intends to i elicit. Without such a summary, it may be impossible to determine l l

in advance whether the testimony that Intervenor intends to elicit  ;

.i is proper, and the hearing may be bogged down while Intervenor i

presents a succession of witnesses all of whose testimony is found, l

after the fact, repetitious and without probative value. l If such a showing is not required, Georgia Power is very l l

concerned that the hearing may not be completed during the days- i currently set aside, and may in fact run on weeks longer. This i might in turn impact the schedule of the diesel generator l proceeding. Given the length of this proceeding already, the  ;

impediment it presents to beneficial organizational changes, and j the substantial burden it places on company officers who have very f important duties and pressing schedules, any further delay in this  !

I proceeding should be avoided if at all possible. (

l Georgia Power's concern that Intervenor's witness list could l

l add weeks to the schedule is underscored by the schedule that -l l

)

3 Intervenor' proposes in its December 21, 1994 letter, attached i hereto. Intervenor proposes that the entire second week of the hearing be devoted to thirty-two witnessesl' (the first week having been allocated for Messrs. McCoy, Hairston, Farley, Mcdonald,-

• Dahlberg, and Mosbaugh). Intervanor provides no time for testimony l by Messrs. Hobby, Barker, McHenry, Wilkinson, or Timmons, or for I

the NRC Staff witnesses he is seeking (Messrs. Rogge, Brockman, or )

l Ebneter). He provides no time for his so-called surprise witnesses l l

(Messrs. Harris and Joiner). And he has previously suggested he i may call additional rebuttal witnesses. In sum, under Intervenor's  ;

proposed schedule, it is clear that the hearing would not be finished after the second week, and that a substantial number of  ;

i I

witnesses would remain even if Intervanor's requested schedule for j the identified thirty-two could be followed. Therefore, to avoid i further delay, it is imperative that Intervenor be ' required to bring some discipline to his case. Unless Intervenor is willing to apply that discipline himself, by proposing a reasonable number of witnesses and appropriate time limits, Georgia Power believes that a requirement for subpoenas supported by the showing above must be pursued.

Finally, even if Intervenor is able to make the showings discussed above, any subpoenas that issue to particular witnesses should subsequently, on proper motion, be quashed or modified if I' Four of the witnesses (Bailey, Edwards, Hicks, and Kilgore) on Intervenor's December 21 list are witnesses that Intervenor stated he was dropping during the December 19 conference call, in part because their testimony would be duplicative. Tr. 10053, 10066, 10073-76.

4

- _ _ . . . _ . -_ _ _ _ .. _ _, a

F the subpoenas require testimony which is protected by an applicable -

privilege, or if the subpoenas are otherwise unduly burdensome, oppressive, or " unreasonable." 10 C.F.R. 5 2.720(f). Egg also 9 Wright & Miller, Federal Practice and Procedure S 2457 (1971).

Georgia Power reserves the right to so move to quash or modify any issued subpoena.

Respectfully submitted, J

is E. Joiner n Lamberski ROUTMAN SANDERS 600 Peachtree Street, N.E.

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. 20037-1128 (202) 663-8000 Counsel for Georgia Power Company Dated: December 23, 1994 6

5

i DOCKETED  ;

UNITED STATES OF AMERICA USNRC  ;

NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina B trgt 27 P4 :19 0FFICE Ef SECRETARY

) 00CKEl!NG & CERViCE l In the Matter of ) Docket Nos. 50-424 COLA-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 CERTIFICATE OF SERVICE I hereby certify that copies of " Georgia Power Company's Position Regarding Intervenor's Subpoenas for Witnesses," dated i

December 23, 1994, were served by deposit with an express mail delivery service upon the persons listed on the attached service list, this 23rd day of December, 1994.

J Lamberski i

i i

s  !

UNITED STATES OF AMERICA  !

NUCLEAR REGULATORY COMMISSION t BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of GEORGIA POWER COMPANY,

• Docket Nos. 50-424-OLA-3 11 A1

• 50-425-OLA-3 (Vogtle Electric

• Re: License Amendment i Generating Plant, *

(Transfer to Southern -

Units 1 and 2)

• Nuclear)

• ASLBP No. 93-671-01-OLA-3 SERVICE LIST Administrative Judge Stewart D. Ebneter Peter B. Bloch, Chairman Regional Administrator Atomic Safety and Licensing USNRC, Region II Board 101 Marietta Street, NW U.S. Nuclear Regulatory Suite 2900 Commission Atlanta, Georgia 30303 Two White Flint North 11545 Rockville Pike Office of the Secretary Rockville, MD 20852 U.S. Nuclear Regulatory Commission Administrative Judge Washington, D. C. 20555 James H. Carpenter ATTN: Dockating and Atomic Safety and Licensing Services Branch Board 933 Green Point Drive Charles Barth, Esq.

Oyster Point Mitzi Young, Esq.

Sunset Beach, NC 28468 Office of General Counsel One White Flint North Administrative Judge Stop 15B18 Thomas D. Murphy U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D. C. 20555 l

U.S. Nuclear Regulatory Commission Director, Two White Flint North Environmental Protection 11545 Rockville Pike Division Rockville, MD 20852 Department of Natural i 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 l Washington, D.C. 20001 office of Commission Appellate Adjudication One White Flint North 11555 Rockville Pike Rockville, MD 20852 l

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KOHN, KOHN, & COLAPINTO, RC.

ATTCRNEYs AT LAW i S17 FLO8CA AWNUE. NW  ;

WAS4N3TCM DC 20001 1850 '

202) 234 4863. fax 202) 402 4145

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• December 21, 1994 Via facsimile John Lamberski, Esq.

TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E.

Atlanta, GA 30308-2216 ,

RE: License Amendment (transfer to Southern Nuclear)

• Dockat Nos. 50-424-OLA-3r 5 0 -4 2 5 -OfA- 3

Dear Mr. Lamberski:

Intervenor, pursuant to 10 C.F.R. 5 2. *72 0 (a) , intends to move the Licensing Board to issue a subpoenas to the below-named individuals. I have set forth the proposed date and whether the witness would testify during the morning or afternoon. I request that we discuss this schedule on or before December 23, 1994.

Egmg Date Time {

J. Schaudies 1/9 Afternoon C. Whitney 1/9 Afternoon Bob Scherer 1/9 Afternoon Ed Addison 1/9 Afeernoon l Bill Shipman 1/10 Morning Kerry Adams 1/10 Morning Grady Baker 1/10 Morning l Dwight Evans 1/10 Afternoon l l

Bob Edwards 1/10 Afternoon i George Head 1/10 Afternoon Jeff Wallace 1/11 Morning Bob Gilbert 1/11 Morning "s _

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\ t Ed Crosby 1/11 Morning John Meier 1/11 Afternoon l Jane Henry 1/11 Afternoon William Evans 1/11 Afternoon Lee Glenn 1/11 Afternoon Louis Long. 1/12 Morning Charles McCrary 1/12 Morning Warren Jobe 1/12 Afternoon i Gerald Johnson 1/12 Afternocn Don Proctor 1/12 Afternoon >

i Dan Smith 1/12 Morning ,

Dave Self 1/13 Morning .

Tom Kilgore 1/13 Morning i

F. Stacy 1/13 Morning

• Tom Peacock 1/13 Afternoon

• Paul Rushton 1/13 Afternoon

• Ed Hicks 1/13 Afternoon >

• James Baily 1/13 Afternoon '

• Steve Chestnut 1/13 Afternoon

• Steve Ewald 1/13 Afternoon Based on my initial calculations on the length, scope,.

importance, and necessity of witnesses and their examination, the above schedule presents what intervenor believes would be the greatest chance of a timely completion of the hearing.

i Sincerely yours,  :

, 'W l Michael D. Kohn

"*" indicates that the witness is reserved. '

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