ML20081B086
| ML20081B086 | |
| 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-#195-16476 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9503160034 | |
| Download: ML20081B086 (7) | |
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95 W,R 10 P3 :ldarch 8, 1995-IQAf(cRE TARY r4 M UNITED STATES OF 3gy;CF NUCLEAR REGULATORY
$SJONr,g ATOMIC SAFETY AND LICENSIN6 BOARD Before Administrative Judges:
l Peter B. Bloch, Chair l
Dr. James H. Carpenter Thomas D.. Murphy-In the Matter of
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Docket Nos. 50-424-OLA-3 l
GEORGIA POWER COMPANY
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50-425-OLA l 31 A1,
)
)
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 STRIKE GEORGIA' POWER'S-MOTION FOR
SUMMARY
DISPOSITION OF INTERVENOR'S AIR l
QUALITY STATEMENTS ALLEGATION AND IN THE' ALTERNATIVE; LEAVE FOR EXTENSION TO REPLY AND MODIFICATION OF THE PHASE II SCHRnULE COMES NOW, Intervenor, Allen L. Mosbaugh', through counsel, and moves this Honorable Board, pursuant to 10 C.F.R..
l
- 52. 751a (4 ) (d), to strike Georgia Power Company's Motion for Summary Disposition of Intervenor's Air Quality Statements Allegation dated March 3, 1995
(" Georgia Power's Motion for Summary Disposition") and the attached document entitled Georgia Power's. Statement of Material Facts as to Which There is No Genuine Issue to be Heard Regarding Intervenor's Air Quality l-l-
Statements Allegation
(" Georgia Power's Statement of Facts").
In the Alternative Intervenor requests leave to reply and modification of the Phase II schedule including the hearing date.
l Intervenor makes this request for the reasons set out below.
l 9503160034 950308 3
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I.
Backaround On December 12, 1994 the parties filed with the Licensing i
I I
Board proposed schedules for the " Phase II" hearing and otherwise filed a proposed agenda related to scheduling matters. -Georgia-Power nor any of the other parties included in their prospective schedules or agendas the desire to file Motions for Summary Disposition.
At the December 14, 1994 status conference Georgia Power agreed to NRC Staff's Proposed Schedule and to. commence the hearing of Phase II on March 29, 1995.
Over the objection of Intervenor's counsel, March 29, 1995 was set as the hearing date i
and that of the other scheduled activities would occur as stated in NRC Staff's Proposed Schedule unless Intervenor filed an j
adjustment that would better accommodate his limited resources.
I i
Tr. 996-997.
Intervenor filed its modified version of the j
i schedule on January 4, 1995.
On January 17, 1995, after the conclusion of Phase I, the Board held a conference call with the parties to establish the final schedule for Phase II.
During this conference Georgia Power's counsel failed to mention that j
they were contemplating filing for summary disposition with i
i respect to any issues pertaining to Phase II.
Consequently, the issue of setting a time frame for filing motions for summary i
disposition and responses thereto was not discussed.
Sag Tr.
?
10167-10188.
On January 18, 1995 the Board issued a Memorandum j
and Order setting the Schedule for the completion of Phase II proceedings.
This schedule does not consider the filing of l
summary disposition and responses thereto.
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II.
Discussion l
l According to 10 C.F.R.
S2. 751a (4) (d), the' presiding officer is to direct the parties to appear for a conference to " establish a schedule for further actions in the proceeding".
The presiding officer shall enter an order which recites the action.taken at the~ conference, the schedule for further actions in-the proceeding, any agreements by the parties, and which identifies.the. key issues in the proceeding, makes a preliminary or final determinations to the parties in the proceeding... Objections to.the order may be filed in five (5) days after service of the order...The order shall control the subsequent course of the proceeding unless modified for good cause.
Id.
Georgia Power's Motion for Summary Disposition is inconsistent with the scheduled adopted by the Board and parties for the completion of the Phase'II hearing The timing of the filing of this motion raises the prospect that it was filed as an eleventh hour trial tactic to divert Intervenor's slim resources from trial preparation.
Licensee should have known whether or not it was planning to file a motion for summary decision'and was i
i obligated to make sure this was included in the scheduling i
discussions occurring cn1 January 17, 1995.2 This motion also comes at a time when Licensee's counsel is aware that Intervenor's lead counsel was incapacitated due to a surgery which occurred on March 1, 1995.
i 2
Such a request could have -- should have -- been made on at least three separate occasions: December 12 and 14, 1994, and January 17, 1995.
3 l
Beyond the failure to comply with the prehearing schedule, Licensee's motion is defective on its face for three reasons.
First, it relies on a recent NRC staff document for which l
Intervenor has not completed discovery.
Intervenor should not have to respond to a request for summary disposition until after discovery on this issue is completed.
Second, Georgia Power's motion argues the relative strength l
of facts.
It asserts that NRC Staff's findings rather than the l
findings made by NRC's Office of Investigation's should be i
adopted.
The NRC OI report sets forth " specific facts showing l
that there is a genuine issue."
Thus, this Board has information l
before it demonstrating that a genuine factual-disagreement exists irrespective of any final action taken by NRC Staff.*
At the summary disposition phase, the Board is required to view facts in the light most favorable to the defending party.
The OI i
report in and of itself contains a sufficient factual basis to deny Ger gia Power's motion.
Th i rd, Intervenor believes that Georgia Power's supporting documentation, in particular Mr. McCoy's affidavit, is defective l
in four respects: 1) it contains material false statements that can best be exposed only as a result of cross examination; 2) Mr.
2 l
It should be noted that the burden of proof before the Board is substantially different than the burden NRC staff employs with respect to the issuance of a NOV.
Moreover, Intervenor is concerned by the f act that NRC staff apparently did not and has l
never reviewed deposition transcripts of Mr. McCoy, Mr. Bockhold, Mr. Hairston and numerous other persons.
NRC staff's ostrich approach to analyzing wrongdoing on the part of Georgia Power l
places the responsibility on Intervenor to adequately set forth the full record with respect to the NOV.
4 l
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{
McCoy's affidavit is based on facts to which he does not and cannot have first hand knowledge'; 3) it is replete with conclusory statements for which there is insufficient or no factual support; and 4) the credibility of Mr. McCoy must be l
questioned by this Board.
In fact, Mr. McCoy's affidavit reads l
more like a legal brief than an affidavit.
Furthermore, The 1
l record demonstrates that NRC OI concluded that Mr. McCoy was involved in submitting false and misleading statements to NRC.
It would be wrong for this Board to accept factual assertions contained in Mr. McCoy's affidavit without an opportunity for Intervenor to subject him to cross examination on the contents of his affidavit, in particular, false statements Intervenor believes are contained therein.'
Finally, if the Board believes Licensee's motion should be l
considered, Intervenor would need additional time added to the 2
Mr.
McCoy has failed to follow the requirements pertaining to the submission of an affidavit.
The rules governing this proceeding provide:
Affidavits shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein...
10 C.F.R.
52.749(b).
Mr. McCoy is not competent to testify regarding facts of which he has no first hand knowledge and therefore the affidavit should be disregarded.
Requiring Intervenor to file a response to summary disposition would result in Intervenor's release of information his counsel plans to use to cross examine Mr. McCoy and other Licensee witnesses.
Licensee is well aware that there is a factual dispute and the filing of summary disposition on this issue is a ruse to cause Intervenor to show his hand thereby supplying Licensee with an advantage in the preparation of its case and witnesses prior to hearing.
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r schedule and would require that the hearing date-be' moved to June l
1995.
III. Conclusion l
For the forgoing reasons Intervenor respectfully requests-this Honorable Board to strike Georgia Power Company's Motion for Summary Disposition of Intervenor's-Air Quality Statements Allegation _and the attached document entitled Georgia Power's Statement of Material Facts as to Which There-is No Genuine Issue to be Heard Regarding Intervenor's Air Quality Statements Allegation.
Respectfully submitted,
/a y a m A A M/ chap 7 D. Koh Mhry/ Jane Wilmoth Kohn, Kohn_and Colapinto, P.C.
517 Florida Ave.,
N.W.
Washington, D.C. 20001 (202) 234-4663 h
Attorneys for Intervenor Dated: March 8, 1995 CERTIFICATE OF SERVICE I hereby certify that Intervenor's Motion to Strike Georgia Power's Motion l
For Summary Disposition of Intervenor's Air Quality Statements Allegation And In the Alternative Leave for Extension to Reply And Modification of The Phase II l
Schedule was served via first class mail on March 8, 1995 upon the persons listed I
in the attached service List.
By2 lhA//Mz? //)
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DOCKETED UNITED STATES OF AMERICA USHRC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD.
_95' nm 10 P 3 37
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In the Matter of
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rMer rc c[cPE TARY
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Docket Nos. 50-9 bdbL $3,]cA 'RylCE 50-CLA-3e cE GEORGIA POWER COMPANY
)
si 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.
l Thomas D. Murphy Office of General Counsel Atomic Safety and Licensing Board U.S. N.R.C U.E, Nuclear Regulatory Commission Washington, D.C.
20555 L'r,hington, 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.
i Washington, D.C.
20037 Office of the Secretary Attn: Docketing and Service U.S. Nuclear Regulatory Commission j
Washington, D.C.
20555 office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C.
20555 C:\\ FILES \\301\\ CERT.LIS i
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