ML20072Q566

Intervenors Motion to Require Attendance & Testimony of NRC Personnel.* W/Certificate of Svc & Svc List

ML20072Q566
Person / Time
Site:	Vogtle
Issue date:	09/06/1994
From:	Wilmoth M GEORGIA POWER CO., KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	Atomic Safety and Licensing Board Panel
References
CON-#394-15680 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9409120115
Download: ML20072Q566 (7)

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hbh DOCKETED Septemberi h 1994 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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ATOMIC SAFETY AND LICENSING BOARDg.;' ,

C DOCht!CO Before Administrative Judges:

Peter B. Bloch, Chair Dr. James H. Carpenter Thomas D. Murphy

)

In the Matter of )

) Docket Nos. 50-424-OLA 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 INTERVENOR'S MOTION TO REQUIRE THE ATTENDANCE AND TESTIMONY OF NRC PERSONNEL Allen L. Mosbaugh, Intervenor in the above captioned matter, pursuant to 10 C.F.R. S 2.720 (h) (2) (i) , moves this Honorable Licensing Board to require the attendance and testimony of the NRC personnel noticed for deposition in Intervenor's Notice of Deposition dated August 1, 1994, due to exceptional circumstances that exist.

I. BACKGROUND  ;

On August 1, 1994, Intervenor served NRC Staff with a notice i 1

of deposition, pursuant to the above cited regulation, along with statements as to the relevance of the issues to this proceeding upon which the named witnesses, or a specific group of I

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witnesses,

• would be deposed. At the August 12, 1994, status conference, NRC Staff informed Intervenor that it would only make available for deposition NRC personnel who Staff had previously identified as witnesses. These witnesses were identified in a May 13, 1994, letter from NRC Staff Counsel, Ms. Mitzi Young, Esq., as David Matthews, Pierce H. Skinner, Daryl S. Hood, and Louis L. Wheeler. The Board instructed Intervenor to file a motion stating that his Notice of Deposition had complied with the governing regulation and the grounds upon which the Board may compel the noticed NRC personnel to be produced for deposition.

II. ARGUMENT Intervenor asserts that his notice of deposition of August  ;

1, 1994, complied 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 i

notice contained an explanation as to the relevance of deposing these individuals to the issues in this proceeding. The Board may, upon a showing of exceptional circumstances as to the why the information Intervenor seeks cannot be obtained through the witnesses made available by the Staff, "such as a case in which a In items 3 and 6 of Intervenor's Notice of Deposition ,

Intervenor was unable to name specific individuals who he intends l to depose because NRC Staff had objected to answering Intervenor's interrogatories in which the identities of persons in specific l groups were requested. The Board has since directed the Staff to l respond to these interrogatories. . See Memorandum and Order LBP l 26, August 22, 1994. However, because the Board instructed Intervenor at the August 12, 1994, status conference to file his motion concerning Staff witnesses within two weeks of the Board's ruling on Intervenor's motions to compel, Intervenor is not able at this time to name specific individuals from these groups. Tr. 650.

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particular named NRC employee has direct personal knowledge of a l m

material fact", compel the named witnesses to appear. 10 C.F.R.  ;

S2.720 (h) (2) (i) . Intervenor contends that there are exceptional circumstances which require attendance and testimony of the named NRC personnel.

Items 1 and 2 of Intervenosr Notice of Deposition named Ken Brockman, Stewart Ebneter, respectively. Both of these individuals have direct personal knowledge of material facts that the witnesses made available by Staff do not. Mr. Brockman was i i

the Region II official responsible for direct review of the Site i

Area Emergency ("SAE"). Mr. Ebneter was the Region II Administer  !

4 to whom Mr. Brockman reported. Mr. Brockman also lead the  ;

Augmented Inspection Team ("AIT") which originally started the review of the SAE and the Region II contact for the Incident l

Inspection Team ("IIT"). Additionally, both have engaged in oral and written communication with not only NRC personnel but also .

GPC management regarding diesel generator reliability. l Furthermore, both have had direct personal observations of Plant Vogtle management which the witnesses that have been made available do not possess.

The third item of Intervenor's Notice of Deposition named the members of the Vogtle Coordinating Group ("VCG"). Intervenor named all the members of the group because the Staff had not yet responded to Intervenor's discovery requests. In an August 22, 1994, Memorandum and Order the Board ordered the Staff to answer Intervenor's interrogatory which seeks among other information 3

l the identities of the members of this group. LBP-94-26 at p. 9.

The Staff has listed David Matthews, chairman of the VCG, as an available witness. If, after Staff provides Intervenor with the identities of the other members of the VCG, Intervenor feels there are exceptional circumstances which would necessitate that Intervenor depose another menter of the Group, who is not one of the witnesses the Staff has made available, Intervenor will make a showing of exceptional circumstances at that time.

Intervenor requested to depose a NRC Staff representative, in item 4 of his Notice of Deposition, who has the ability and knowledge to answer questions regarding the NRC investigation conducted at the Grand Gulf facility with regard to any information gathered regarding whether or not Mr. Ken McCoy had the requisite character, competence, integrity or honesty to continue in that facility in a management position. The Board i

has found that discovery regarding this matter to be "within the scope of permissible discovery, since it relates to the character I

of a person who is likely to be a witness." LBP-94-26 at p. 7.

Since this was a NRC investigation, the agency is well situated l

to select the NRC employee (s) who has/have the requisite ability and knowledge with which to respond with competence to inquiries regarding the Grand Gulf investigation. To the best of l

Intervenor's knowledge, none of Staff's named witnesses have l l

direct personal knowledge of this investigation. Hence, the Staff should identify and produce a representative (s) who is able 4

to respond to inquiries into this matter based on either direct personal knowledge or otherwise superior knowledge.

In item 5 of Intervenor's Notice of Deposition he requested the Custodian of Records for the NRC to produce certain documents that were listed. If one of the NRC's named witnesses qualifies as and is authorized to act as the Custodian of Records for the NRC, than Intervenor will accept the production of these i documents from that witness. If not, Intervenor requests that a  ;

duly qualified and authorized Custodian of Records be made available to fulfill this document request.

Intervenor does not believe it is ripe to commence depositions of the drafters and reviewers of the Notice of ,

Violation until a final determination has been made, however, Intervenor included item 6 of his Notice of Deposition as to not lose the opportunity to depose these NRC personnel. See ,

Intervenor's Notice of Deposition at p. 7, fn 1. The Board has determined that the Staff should disclose the names of the '

persons involved in creating and issuing the NOV along with "a brief statement of the nature of the expertise they contributed."

LBP-94-26 at p. 12. Therefore, if, after the Staff discloses the identities of these individuals, Intervenor determines there exist exceptional circumstances that would necessitate that Intervenor depose a person from this class, and this person is not one of the witnesses the Staff has made available, Intervenor will make a showing of exceptional circumstances at that time.

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III. Conclusion For the forgoing reasons Intervenor respectfully requests this Honorable Licensing Board to require the attendance and testimony of the named NRC personnel at the depositions noticed in Intervenor's Notice of Deposition dated August 1, 1994.

Respectfully submitted,

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Ma'ry Jgfr36 Wilmoth KOHN, 40HN AND COLAPINTO 517 Florida Avenue, N.W. l Washington, D.C. 20001-1850 (202) 234-4663 Attorney for Intervenor Dated: September 6, 1994

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l CERTIFICATE OF SERVICE I hereby certify that Intervenor's Motion to Require the Attendance and Testimony of NRC Personnel has been served this 6th day of September 1994, by first class mail upon the persons listed in the attached Service List.

1 By: 8N8 h Mary Ja Q Kilmoth' KOHN, KOHM& COLAPINTO, P.C.

517 Florida Ave., N.W.

Washington, D.C. 20001 (202) 234-4663 l

C:\ FILES \301\PR00.NRC 1

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00CKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

'94 97 -7 P 3 :32

)

In the Matter of )

.F CE OF SECRETARY

) Docket Nos. 50-424-OQ g7g g cif RVICE GEORGIA POWER COMPANY ) 50-425-0 -0 ggAgcq et 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.

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 301\ cert.lis i

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