ML20081L459

Intervenor Motion to Complete Discovery Against NRC Staff.* Requests Board to Require Staff to Submit Witnesses,Respond to Outstanding Document Requests & Comply w/10CFR26 Re Designated Witnesses.W/Certificate of Svc & Svc List

ML20081L459
Person / Time
Site:	Vogtle
Issue date:	03/22/1995
From:	Kohn M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	Atomic Safety and Licensing Board Panel
References
CON-#195-16529 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9503300210
Download: ML20081L459 (12)

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bj 2.f DOCKETED Marchncm a 22,'r'1995 UNITED STATES OF AMERICA g g y y gg NUCLEAR REGULATORY COM L oION ATOMIC SAFETY AND LICENSING BOARD CIL f f .  :'

) DOW I :' S:

In the Matter of )

) Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY ) 50-425-OLA-3 st 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 MOTION TO COMPLETE DISCOVERY AGAINST NRC STAFF COMES NOW, Allen Mosbaugh, Intervenor in the above captioned case, pursuant to 10 C.F.R. 5 2.718(e) and (f) and 10 C.F.R. 2.720 (h) (2) (i) , for good cause shown, moves this Honorable Board to require NRC Staff to: 1) submit witnesses for deposition; 2) respond to outstanding document requests; and 3) comply with the requirements of Rule 26 of the Federal Rules of Civil Procedure with respect to newly designated witnesses which NRC Staff refers to as it's " management panel." Intervenor further requests that the Board adhere to the reasoning leading to the bifurcation of the proceeding and not require Intervenor -- the only party who cannot competed discovery as a result of NRC's delay -- to file prefiled testimony until he completes discovery against NRC Staff.

I. BACKGROUND A. Modified NOV With the exception of discovery related to the NOV, discovery on Diesel generator issued closed on August 8, 1994.

At the August 12, 1994 status conference, NRC Staff indicated 9503300210 950322 PDR O

ADOCK 05000424 PDR f0)

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i that final action on the NOV would be completed in time to allow depositions of NRC. witnesses to be completed between January 4- '

13, 1995. Tr. 636 (lines 10-13).1 Licensee's' counsel, Mr.

Ernest Blake, stated that he agreed that the schedule to complete depositions on NRC Staff would be " triggered by the staff's ,

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position on the NOV" and that the schedule would be " subject later on to adjustment, to the extent we need it." Tr. 619 (lines 22-25). Mr. Blake sought to complete " depositions of NRC ,

personnel within a fixed time frame," after the final Staff position on the NOV was available, Tr. 621 (lines 1-3), and that the pre-hearing conference would occur four weeks thereafter with prefiled testimony occurring "six weeks after the staff's  :

position is available." Tr. 623 (lines 14-19) (emphasis added) .

The NRC Staff served its final position on the NOV on February 13, 1995 on Licensee. NRC Staff further delayed the proceeding by failing to serve the modified NOV on intervenor for nine days. It was not until February 22, 1995 that NRC Staff first served intervenor's counsel with- a copy of the modified  ;

NOV.

2 According to NRC Staff Suggested Schedule for Proceeding, filed on August 10, 1994, Staff " estimates that it will take about four months to complete a review of-the NOV i response" filed by licensee, id., at p. 5, and designated December 12, 1994 as the date NRC Staff would issue its final action with respect to the NOV. id., at p. 6. NRC Staff also agreed to "promptly inform the Board and parties" about any delays, but Intervenor does not recall receiving such notification. Indeed, at the conclusion of the January 17, 1995 teleconference, NRC Staff's counsel was questioned by Judge Bloch about when it could expect final NRC Staff action, to which NRC Staff's counsel responded, "I don't have a good date for you."

Tr. 10187.

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t - 5 On February 28, 1995, Intervenor's counsel initiated discovery on NRC Staff and Licensee and Licensee's employees (or i former employees) concerning the modified NOV.a As a matter of l professional courtesy and in order to keep this proceeding on f l

track, intervenor's counsel asked the parties to voluntarily comply with this discovery and avoid the delay associated with ,

intervention by this Board.

By letters dated March 10, 1995 and March 14, 1995, the NRC Staff and GPC respectfully informed the intervenor of their intent not to comply with the discovery related to the modified NOV. On March 16, 1995 Intervhnor filed a motion to compel the production of the discovery sought in the February 28, 1995 filings.

On March 21, 1995, Intervenor received by mail a copy of the  !

March 13, 1995 letter from the NRC Staff " correcting" its final NOV (although the cover letter infers that a copy was sent by <

facsimile on March 20th, Intervenor's counsel does not believe a fax was sent to them). Once again, NRC-Staff delayed the proceeding by provided GPC seven days advance notice of the

" correction" to the modified NOV before filing it on Intervenor's counsel. The correction consisted of a finding which was highly prejudicial to the intervenor and was predicated on a letter

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2 In addition to the February 28th discovery, the only j other outstanding discovery is set out in the filings i accompanying this motion entitled "Intervenor's Notice of Deposition of James L. Milhoan and NRC Representatives" and "Intervenor's Notice of Deposition of Roy P. Zimmerman and Luis A. Reyes."

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issued by Licensee on March 1, 1995, which was also not sent to Intervenor until March 21st.

As a result of the late filed actions taken by NRC Staff, under the present schedule intervenor is required to submit pre-filed testimony and conduct cross examination of GPC witnesses without access to documents related to the final NOV, without having had an opportunity to depose NRC expert witnesses and without having obtained discovery on the modified final NOV.

Previously, when requested by Licensee, this Board agreed that two weeks should be set aside for depositions of NRC witnesses after NRC Staff's " final position on the NOV" was determined; and that the Board was willing to grant Licensee additional time if they wanted it. Tr. 620 (lines 24-25) ; 621 (lines 1-3); 623 (lines 10-16). This Board also advised Intervenor that a delay in the hearing schedule would flow from delays in NRC Staff taking its final position. Tr. 626 (lines 22-

25) ; 627 (lines 1-3).

B. NRC Management Panel On the afternoon of March 10, 1995, NRC Staff, for the first time, advised Intervenor's counsel that Staff will sponsor a

" management panel" consisting of Roy P. Zimmerman, Associate Director for Projects, Office of NRR and Luis A. Reyes, Deputy Regional Administrator, Region II (hereinafter " Management Panel"). According to NRC Staff, this Management Panel will present testimony addressing "the character and integrity of the corporations involved as it relates to the admitted contention 4

regarding proposed transfer." Egg March 10, 1995 Letter from NRC Staff. As discussed below, Staff's recent actions should be governed by Rule 26 of the Fed. R. Civ. Pro., and discovery should proceed according thereto.

II. ARGUMENT A. Modified NOV

1. Intervenor Has Good Cause To Reopen Discovery The correction to the Modified NOV transfers part of the responsibility for one of the violations from the Vogtle Plant General Manager to Intervenor. This decision thereby changes the NRC's position once more. Thib issue, as well as others in the Modified NOV, .is highly relevant to the proceeding. Intervenor has good cause to reopen discovery to conduct depositions of NRC personnel involved in the " corrected" findings and decisions in the Modified NOV.

2. Intervenor's Request Complies With The Regulations Intervenor asserts that this notice of deposition complies with the requirements set out in 10 C.F.R. S2.720 (h) (2) (i) .

Intervenor's notice identified NRC personnel and/or a specific group of NRC personnel for deposition. This notice contains an explanation as to the relevance of deposing these individuals to the issues in this proceeding. The Board may, upon a showing of i exceptional circumstances as to the why the information i

Intervenor seeks cannot be obtained through the witnesses made available by the Staff, "such as a case in which a particular named NRC employee has direct personal knowledge of a material 5

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fact", compel the named' witnesses to' appear. 10 C.F.R. 52.720 (h) (2) (i) . Intervenor contends that there are exceptional circumstances which require attendance and testimony of the named ,

NRC personnel.

3. The Personnel Noticed Have Direct Personal i Knowledge Intervenor noticed James L. Milhoan and all NRC l Representatives who were involved in the findings and decisions concerning the Modified NOV and the decision to make the correction to Violation C.3 of the Modified NOV for deposition.

These' individuals have direct personal knowledge of material' I

facts that the witnesses made available by Staff do not. Mr.

Milhoan is the official responsible for the Modified NOV and the letter of correction. He has engaged in written communication with GPC management regarding the Modified NOV and the correction of Violation C.3. Furthermore, Mr. Milhoan as well as the NRC Representatives responsible for the Modified NOV and the decision for the correction have direct personal knowledge of why and how the decisions were made that the witnesses that have been made available do not possess.

B. HRC Staff's Manacement Panel

1. Intervenor Has Good Cause To Reopen Discovery NRC Staff did not provide Intervenor with notice of its intent to call a Management Panel until March 10, 1995. NRC Staff's extreme delay constitutes good cause to depose the Management Panel. Moreover, as set forth in the argument below, 6

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NRC Staff has failed'to-comply with Rule 26 of the Fed. R. Civ.

Pro, and, by so doing, has denied Intervenor due process.

2. NRC Staff's Management Panel Constitutes Expert Testimony and Intervenor is Entitled to Meaningful >

Discovery

,. According to NRC' Staff, its Management Panel will present testimony addressing "the character and integrity of the corporations involved as it relates to the admitted contention ,

regarding proposed transfer." ERA March 10,- 1995 Letter from NRC '

Staff. Simply stated, NRC Staff intends to present NRC Staff's position on the ultimate issue before the Board. NRC Staff must concede that its Management Pahel has no first-hand knowledge of any of the underlying facts pertaining to Phase II. Federal Rule of Evidence 701(a) precludes non-expert witnesses from presenting opinion testimony that is not based on first-hand knowledge.8 Lacking first hand knowledge, the Management Panel represents expert testimony on the ultimate legal conclusions and factual' findings of this case. f Discovery concerning expert testimony is governed by Rule 26 of the Federal Rules of Civil Procedure. Pursuant to Rule 26 (b) (4) (A) , a aparty may depose any person who has been identified as an expert whose opinion may be presented at t, rial."

This deposition is to commence after the party files a report of.

the expert. Id. Pursuant to 26 (a) (2) (B) , this expert report must contain "a complete statement of all opinions to be express  !

Ega Notes of Advisory Committee on 1972 Propose Rules

(" Limitation (a) is the familiar requirement of first-hand knowledge or observation").

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i and the basis and reasons therefor; the qualifications of the witness..."

Moreover, pursuant to Fed. R. Civ. Pro. 26 (a) (2) (C) , a party

-is to receive at least 90 days notice of an expert witness before the hearing date. NRC Staff supposedly identified all of its i witnesses in a letter dated May 13, 1994. No mention of an expert witness panel was made. Notifying Intervenor on March 10, 1995 of its intention to establish and call a Management Panel is not reasonable notice.

Intervenor does not object to NRC Staff presenting an expert witness. panel, but Intervenor htrenuously objects to steam-rolling over basic due process rights and requests that the rules of civil procedure be followed regarding these witnesses. It l l

would be extremely prejudicial to require Intervenor to submit'  !

prefiled testimony or findings of fact before he completes this i

essential discovery and trial preparation. Indeed, this Board never intended that a party submit prefiled' testimony before discovery was completed. l l

As a practical matter, Intervenor does not object to l Licensee presenting its case-during the week of April 17, 1995.

However, intervenor would need leave to re-call any of these witnesses on the basis of information provided in the deposition testimony of NRC expert witnesses and/or the documents the NRC/GPC documents pertaining to the final NOV.

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i Intervenor strenuously. objects to a prehearing schedule  !

-requiring him to submit any pref'iled testimony before he completes discovery on NRC Staff.*

III. REQUEST FOR RELIEF Intervenor does not object to Licensee's case proceeding pursuant to the April 17, 1995 schedule. Licensee has completed all its discovery and is prepared to present its case.

Intervenor has no good cause to request a delay of this portion of the proceeding.

Intervenor requests that the Board:

1) direct NRC Staff to su mit a report in conformance with Fed. R. Civ. Pro. Rule 26 to Intervenor's counsel by April 3, '

1994;

2) grant Intervenor's request to depose NRC Staff, as i noticed (said depositions would occur during the week of April j 24, 1995)5; l

It should be noted that the basis for establishing the l timing for filing Phase II prefiled testimony and commencing the hearing was based on NRC Staff taking final action on the NOV in time to allow all of the parties to take depositions of NRC Staff witnesses. Egg Tr. 619 (lines 12-19) ; 621 (lines 1-13) ; 623 (lines 14-19) ; 626 (lines 22-25) ; 627 (lines 1-3); 633 (lines 3- l 12); 634 (lines 1-6). The fact that Licensee has completed its  !

discovery against NRC Staff and has completed its negotiations concerning the NOV and is prepared to present its case, including prefiled testimony should not impact on this Board's decision to allow Intervenor the right to engage in and complete meaningful discovery against NRC Staff.

5 Under Rule 26 of the Fed. R. Civ. Pro., Intervenor-in entitled to 90 days notice of an expert witness before he would be required to submit prefiled testimony. Intervenor wishes to convene the hearing as soon as possible and does not seek the required 90 days.

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3) direct Intervenor to submit prefiled testimony and j

'l fourteen (14) days before the hearing is to reconvene (and submit. l l

requests for subpoena 10 days before the hearing is to reconvene);'

4) that intervenor be granted 20 days from the completion of the NRC expert witness depositions to identify any rebuttal witness (es) to the Management Panel. j Respectfully submitted,

, ,/  % --

Michael D. Kohn ,

Stephen M. Kohn Kohn, Kohn & Colapinto, P.C.

517 Florida Ave., N.W. l Washington, D . C .~ 20001 l (202) 234-4663 Attorneys for Intervenor l C:\FI LES\301\ DISC 1W5\ STRIKE ,

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t It should be noted that this procedure places Licensee  !

and Intervenor in the same footing -- each having fourteen (14) ,

days before the party is to present its case to consider that l party's pre-filed testimony.

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. ,, l DDT.E~fD MahcOI22, 1995 UNITEDSTAThSOFAMERICA NUCLEAR REGULATORY COMMISSION Ya MAR 24 All :39 ATOMIC SAFETY AND LICENSING BOARD OfTi . - '- ' :1

~'

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 CERTIFICATE OF SERVICE I hereby certify that:

1) INTERVENOR'S MOTION ff0 COMPLETE DISCOVERY AGAISNT NRC STAFF;

2) INTERVENOR'S NOTICE OF DEPOSITION OF JAMES L. MILHOAN AND NRC REPRESENTATIVES; and

3) INTERVENOR'S NOTICE OF DEPOSITION OF ROY P. ZIMMERMAN AND LUIS A. REYES was served via hand-delivery on March 23, 1995 upon the persons listed in the attached Service List.

By: ' /fA /// /

M ne Wilmoth C \ FILES \301\NRCNOTIC.CRT

)

i UNITED STATES OF AMERICA NUCLEAR REGUIITORY COMMISSION J

ATOMIC SAFETY AND LICENSING BOARD l

, )

In the Matter of ) '

) Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY ) 50-425-OLA-3 At A L., )

) 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 (3 d U UT

• Peter B. Bloch, Chair James H. Carpenter h^cd ) ..

Atomic Safety and Licensing Bqprd 933 Green Point Drive U.S. Nuclear Regulatory Commiskion 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 .

l Ernest L. Blake, Jr.

Office of the Secretary David R. Lewis Attn: Docketing and Service SHAW, PITTMAN, POTTS &

U.S. Nuclear Regulatory Commission TROWBRIDGE Washington, D.C. 20555 2300 N Street, N.W.

1. ^ "

Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C. 20555 C:\FILESVW1\uERT.LIS i

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