ML20081L497

Intervenor Motion Requesting Order Requiring Immediate Response to Intervenor Requests for Documents.* a Mosbaugh Moves Board to Order Gpc,Nrc Staff & Selected Individuals to Respond to Document Requests.W/Certificate of Svc

ML20081L497
Person / Time
Site:	Vogtle
Issue date:	03/16/1995
From:	Kohn M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	Atomic Safety and Licensing Board Panel
References
CON-#195-16515 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9503300227
Download: ML20081L497 (7)

Text

. . . . _ . - .

... s-

]4;5/5 DOCKETED MarchUfE[lC1995 UNITED STATES OF AMERICA  % nta 21 NO W NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD _ .

y ;fy,r g- n ,

qv y In the Matter of )

) Docket Nos. 50-424-OLA-3' GEORGIA POWER COMPANY ) 50-425-OLA-3 gi AL., )

) 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 REQUESTING AN ORDER REQUIRING AN IMMEDIATE RESPONSE TO INTERVENOR'S REQUESTS FOR DOCUMENTS COMES NOW, Allen Mosbaugh, Intervenor in the above :aptioned case, pursuant to 10 C.F.R. S 2.718 (e) and (f) and moves this honorable Board to order Georgia Power Company, C.K. McCoy, George Bockhold, Jr., Thomas V. Greene, Georgie R. Frederick, Harry Majors, and Michael W. Horton and NRC Staff to respond in by March 27, 1995 to Intervenor's Document Request to Georgia Power Company, the individual requests to the above listed persons, and Intervenor's Document Request to NRC Staff for ae following reasons: l I. BACKGROUND On February 13, 1995 the NRC issued the Modified Notice of Violation and letters to the individuals to whom the Demands for Information were made on May 9, 1994. On Febru&ry 28, 1995 e

Intervenor filed document request on Georgia Power Company, the selected individuals and the NRC Staff. Accompanying these <

requests was a cover letter stating that the documents requested are highly relevant to the proceeding, and that the Licensee has I

9503300227 950316 p ADOCK 05000424 l PDR 0 PDR

1 s (

known of. the importance that any such . documents .would hold, fdut ,

letter.from Mary Jane Wilmoth to John Lamberski dated February 28, 1995. The letter further stated that the commencement of the

" Phase II" hearing is imminent and therefore it is important txa quickly reconcile this request. Id. Licensee responded by '

letter of March 1, 1995 stating that the Company did not know how ,

.or when it would respond. After receiving no further response, Intervenor again addressed this issue with Licensee by way of a letter from Michael Kohn to John Lamberski stating if the request for documents was not responded to by March 15, 1995, Intervenor would file this. motion. Intervenor received a response from ,

Licensee dated March 14, 1995 in which Licensee's counsel Mr.

James Joiner stated objections to Intervenor's request. Mr.

Joiner's letter also stated that neither Licensee nor the ,

selected individuals expects to further respond to Intervenor's

- request. A similar cover letter accompanied Intervenor's request to NRC. Egg letter from M. Wilmoth to Charles Barth dated February 28, 1995. A response from NRC Staff was filed by way of letter dated March 10, 1995 from Mr. Charles Barth. Intervenor accepted this letter as Staff's refusal to respond. Eeg Letter dated March 13, 1995 from M. Wilmoth to C. Barth. Accordingly, Intervenor now files this motion.

II. ARGUMENT A. An Excedited Resoonse is Necessary to Prevent Delav The Phase II hearing is scheduled to commence April 18, 1995. Unless all the parties to this proceeding agree to 2

9

,- . . . .m -

. - - e m% , .m e ., r-

cooperate-and expedite filing to Intervenor's discovery, it'will be impossible for Intervenor to obtain and otherwise meaningfully digest newly discovered. material and the hearing date will no longer be manageable.2. Saa 10 C.F.R. S 2.741(d) 'and S 2.744.

Licensee Waited 14 days to tell'Intervenor's counsel that it would not respond to the document request; NRC Staff waited ten days. This delay requires expedited action on the party of the  :

parties. Intervenor therefore reque sts that this Board issue a

- preliminary order requiring the NRC staff and Licensee to deliver documents covered in the document regaest:on or before March 30, 1995 to Intervenor's counsel; and that, by March 24, ~ 1995, any person or party claiming that a document or portions of a document is privilege identify the document pursuant to the instructions contained in Intervenor's document request and file i a protective order justifying the withholding of the. document (s).

Intervenor commits to responding to a request for a protective order by March 28, 1995.

It is important that the parties remain on schedule and, in order to do so, Intervenor requests that discovery limited to the NOV and newly developing matters be processed on an expedited basis.

B. Intervenor Has Good Cause to Recoen Discoverv I Intervenor has good cause to reopen discovery on the issues  ;

surrounding the Notice of Violation and the Demands for i

1 Intervenor's counsel hereby gives notice that pre-existing legal commitments as well as other matters will require l a 60 day delay in the hearing if the April 18th date is vitiated.

3 t

Information. The recent negotiations, conferences and agreements regarding the issues in the NOV are relevant to this proceeding; however Intervenor was deprived access to all such discussions.

The final determinations on the NOV and Demands for Information were recently provided to Intervenor. The documents and communications which produced these final determinations are relevant to the issues in this proceeding and therefore discoverable. This Board and the parties were all aware that the NOV was relevant to this proceeding and that Intervenor would be expected to file discovery once NRC Staff took its final action.

Finally, unless NRC Staff and Licensee cooperate, Intervenor provides notice that he will object to testimony concerning the issuance of the NOV as well as the introduction of any document issued by NRC staff after the issuance of the NRC OI report. It is fundamental that good cause exists when the events and documents covered by the recent discovery request were all created and the date in which the parties could file document requests expired.

C. The Documents Are Necessarv For The Creation Of An Adecuate Record The documents requested are necessary for the creation of an adequate record in this proceeding. Mutual knowledge of all the relevant facts gathered by all the parties is essential and necessary to a proper decision in this proceeding. Hickman v.

Tavlor, 329 U.S. 495, 507 (1946) ("No longer can the time-honored cry of ' fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case").

4

Accordingly, Georgia Power, NRC. Staff and the selected individuals should be ordered to respond in an expedited manner to Intervenor's document request as they are relevant and necessary to a proper decision in this proceeding. ,.

"A clear distinction must be made between the right to obtain information in discovery and the right to use it at trial." Leksi. Inc. v. Federal Ins. Co., 129 F.R.D. 99, 104 (D.N.J. 1989). The federal rules contemplate liberal discovery to preserve the interest of just and complete resolutions of disputes. Katz v. Batavia Marine and Soortina Sueolies. Inc.,

984 F.2d 422, 424 (Fed. Cir. 1993). Therefore, relevance is not to be measured by the precise issues set out in the petition but by the " general relevance to the subject matter and the legal issues present in the case." Oooenheimer Fund. Inc. v. Sanders, 437 U.S. 340, 351 (1978); See also Trans ontinental Fertilizer Co. v. Samsuna Co. LTD., 108 F.R.D. 650, 052 (E.D. Pa. 1985) and Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 124 (M.D.N.C. 1989). The Documents requested by Intervenor are not just merely ganerally relevant to the diesel generator issues, they are highly relevant and should therefore be produced to Intervenor. To do so would ensure that all parties have mutual knowledge of all the relevant facts gathered by all of the parties, i

5 1

l I

1

.. i.

III. 'ONCLUSION For the forgoing reasons Intervenor respectfully request that this honorable Board order Georgia Power, NRC Staff, and the selected individuals to respond to Intervenor's document requests in the time frames stated above.

Respectfully submitted, h

Michael D. Kohn Mary Jane Wilmoth Kohn, Kohn & Colapinto, P.C.

517 Florida Ave., N.W.

Washington, D.C. 20001 (202) 234-4663 Attorneys for Intervenor

......m............................= ............................

CERTIFICATE OF SERVICE I hereby certify that Intervenor's Motion For an Order to Expedite Responses to Intervenor's Requests For Documents Dated February 28, 1995 was served via first class mail on March 16, 199.5 upon the persons listed in the attac.e Service List.

By:  !/3/r/d?&'slA $6N sYy ahe 'Wil%oth C:\ FILES \301\ DISC 1995\C04PELGP 1

l 1

6 i

i

00CKETED UNITED STATES OF AMERICA USNRC- ,

NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 35 mR 21 : A10 :41 -

)

In the Matter of ) -

) Docket Nos. 50-4 IIdh-h,,bfChEg GEORGIA POWER COMPANY )50-42s bLAgggggg at, AL., )

) Re: License Amendment (Vogtle Electric Generating i

) (transfer to Southern Nuclear)

Plant, Unit 1 and Unit 2) )

) ASLBP No. 93-671-01-OLA-3 i 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'& I 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 301\ Cert.Lst I

l

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