ML20081B083

Intervenor Response to Ga Power Company Motion to Reconvene Desposition of Allen Mosbaugh.* Requests That Board Deny Util Motion to Reconvene Deposition of a Mosbaugh.W/ Certificate of Svc

ML20081B083
Person / Time
Site:	Vogtle
Issue date:	03/08/1995
From:	Wilmoth M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	Atomic Safety and Licensing Board Panel
References
CON-#195-16477 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9503160033
Download: ML20081B083 (6)

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DOCKETED USHRC March 8, 1995 UNITED STATES OF AMERICA T5 tim 10 P3:15 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARDrlg c:, .pm 00CHET.m Before Administrative Judges: c Peter B. Bloch, Chair Dr. James H. Carpenter Thomas D. Murphy In the Matter of )

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

_e1 i , )

) 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 RESPONSE TO GEORGIA POWER COMPANY'S MOTION TO RECONVENE THE DEPOSITION OF ALLEN MOSBAUGH Intervenor, through counsel, hereby files his response to Georgia Power's request to reconvene the deposition of Allen Mosbaugh.

I. Backcround Discovery on the diesel generator issues closed on August 1, 1994. Georgia Power commenced deposing Mr. Mosbaugh on July 22, 1994 and continued the deposition on August 23 and concluded it on August 24, 1994. On March 6, 1995, Georgia Power Company filed a Motion to Reconvene Deposition of Allen Mosbaugh. The sole justification for reconvening the deposition is based documents made available to the parties on December 16, 1994 by NRC. Georgia Power reviewed the NRC documents and then requested copies of some of them. NRC provided the copies in mid-January.

Georgia Power asserts that it subsequently ascertained that two l of the documents raise " serious questions concerning Mr. ,

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l Mosbaugh's credibility. "2 Motion at p 2. Georgia Power claims that it now needs to surprise Mr. Mosbaugh with questions in order to obtain candid and unrehearsed responses. Georgia Power then filed in camera with the Board a memorandum discussing how the documents relate to Mr Mosbaugh's credibility.

II. Discussion Initially, Intervenor's counsel objects to the in camera filing. The description of the memorandum filed by Georgia Power's counsel demonstrates that it is not a cross examination plan. This filing is prejudicial to Intervenor because its sole intended purpose is to attack Intervenor's credibility and to otherwise place undue significance on this issue before the trier of fact, based on the assertions made by Georgia Power, prior to the hearing. It represents posturing and trial tactics and constitutes an unauthorized ex parte communication with the Board (Georgia Power attached the memorandum to its motion and Intervenor's counsel presumes it was reviewed by the Board).'

2 Georgia Power asserts that the significance of certain documents did not become apparent until some undefined point in time, presumably in January, when the document was subsequently reviewed. The significance of the document must have been obvious from the outset or else Georgia Power would not have requested a copy of the document.

2 Georgia Power asserts that the procedure is similar to that employed by Intervenor when seeking to subpoena Mr. Joiner.

This is not so. The regulations allow for the filing of an in camera cross examination plan and during a pre-hearing conference the Board requested that such be filed. Here, Georgia Power submitted a memorandum for the sole purpose of attacking Intervenor's credibility without notice to Intervenor or leave of the Board to do so.

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Intervenor's counsel objects to this tactic and believes it places unjust prejudice on Intervenor.

A. Georgia Power's Ground for recuestina the deoosition --

Element of Surorise Georgia Power has not provided any good cause to reconvene Mr. Mosbaugh's deposition. The sole justification Licensee asserts for filing this motion is to provide Licensee with "an element of surprise" thereby enabling Georgia Power to obtain unrehearsed responses pertaining to two documents. Intervenor cannot fathom how this constitutes good cause because 1) the documents in question are part of a discovery request made by Intervenor; were turned over to the parties in December 1994 and l were, in their totality, personally reviewed by Intervenor at'NRC offices; 2) whatever element of surprise would exist in a deposition setting will certainly exist when Mr. Mosbaugh is cross examined during the Phase II hearing. Thus, there is no good cause to reopen the deposition of Allen L. Mosbaugh.'

B. Georoia Power's Motion is Not Timelv l

Georgia Power has had access to the documents upon which it I i

bases its need to reopen the deposition since December 16, 1994. I However, it waited almost three months to file this motion, the l

timing of which coincides with Intervenor's preparation of l

l prefiled testimony. The schedule does not consider or include  !

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l time for the reconvening of Mr. Mosbaugh's deposition.

Based on the obvious fault in the logic of Licensee's

! counsel, counsel to Intervenor believes Georgia Power's motion represents nothing more than an impermissible trial tactic.

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i C. Recoenina the Deposition Will-Cause Delav j i

Georgia Power and NRC Staff have been working together to j resolve the NOV. Intervenor was not privy to their discussions and was not invited to the enforcement conference. Intervenor l

l has'no alternative but to conduct discovery with respect to NRC l

Staff's and GPC's recent activity. There is simply no room in j the current hearing schedule to accommodate Licensee's request .l l

and still allow Intervenor to adequately prepare for the upcoming  !

l hearing. Licensee had an obligation to review the NRC documentation and to advise the parties before the hearing 1 i

schedule was determined regarding its desire to further. depose  !

Intervenor.

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III. Conclusion l For the forgoing reasons Intervenor respectfully. requests  !

-this Honorable Board to deny Georgia Power's motion to reconvene i the deposition of Allen Mosbaugh and to otherwise take such l l

l action as the Board deems necessary to remedy Georgia Power's 33; carte communication with the Board.

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Respectfully submitted, j

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$AA,Afinsoblids~$

Michael- 'K6hn ' ' ' ' ~~

l Mary Ja Wilmoth l Kohn, Kohn and Colapinto, P.C. i l

517 Florida Ave., N.W. 1 Washington, D.C. 20001 ,

(202) 234-4663 Attorneys for Intervenor Dated: March 8, 1995 l

............=....................................................

CERTIFICATE OF SERVICE I hereby certify that Intervenor's Response to Georgia l

Power's Request to Reconvene the Deposition of Allen Mosbaugh.

was served via first class mail on March 8, 1995 upon the persons listed in the attached Service List.

By: 0Ankf}Tl$ s Marp Ja ~W ilmoth j C:\ FILE 5\301\P02 5

o . .

DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 75 ga 10 P 3 35 In the Matter of )

OfflCE "

) Docket Nos. 50-42460LRE3ltm * ' '

GEORGIA POWER COMPANY ) 5 0 -4 2 5 -OLA- 3 3 H ik N C h.

gL 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 Admir.istrative 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.L15