DD-97-06, Provides NRC Staff W/Reply to Issues Raised in Re Director Decision DD-97-06 Issued on 970318,in Response to Petition Filed,Per 10CFR2.206
| ML20216F264 | |
| Person / Time | |
|---|---|
| Site: | Hatch, Vogtle  |
| Issue date: | 07/29/1997 |
| From: | Collins S NRC (Affiliation Not Assigned) |
| To: | Kohn M KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA |
| Shared Package | |
| ML20216F269 | List: |
| References | |
| 2.206, DD-97-06, DD-97-6, NUDOCS 9709110203 | |
| Download: ML20216F264 (14) | |
Text
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..m July 29, 1997 Michael D. Kohn, Esquire Kohn, Kohn & Colapinto, P.C.
3233 P Street, N.W.
Washington, DC 20007
Dear Mr. Kohn:
This letter provides the NRC staff reply to issues raised in your April 3, 1997, letter to Chairman Shirley Jackson, et. al., in which you requested on behalf of your client, Mr. Marvin B. Hobby, that the Commission institute a review of Director's Decision DD-97-06 issued on March 18, 1997, in response to a petition you had filed pursuant to 10 CFR 2.206.
The Acting Secretary of the Commission informed you in an April 15, 1997, reply to your April 3,1997, letter that your recuest for Commission review was denied. However, the Acting Secretary statec that the concerns raised in your letter had been forwarded to the staff for consideration and reply.
The staff has completed its review of the issues raised in your letter.
Enclosed with this letter is a discussion of the results of the staff's review of each issue. After careful consideration, the staff has determined that none of the issues warrant additional action by the NRC.
Sincerely, MMk SamuelJ.Comns Samuel J. Collins, Director Office of Nuclear Reactor Regulation Docket Nos: 50-321, 50-366, 50-424 and 50-425
Enclosure:
As stated NBC RLE CENTER CO?Y Distribution:
-Docket File (w/ incoming) HThompson PUBLIC (w/ incoming)
PD 11-2 Rdg. (w/ incoming) PNorry ED0 #970253 LWheeler (w/ incoming) JBlaha JZwolinski !
LBerry SBurns KBohrer HBerkow LReyes, Ril MBoyle (e-mail) Y' LM b,
RZimmerman KCyr, OGC OCA OGC FMiraglia SECY CRC-97-032 SCollins MThadani PSkinner, Ril NRR Mailroom (E00 #970253)
TMartin LJCallan WTravers EJordan JJohnson, Ril N01 son CNorsworthy
- See previous concurrence To receive a copy of this document, indicate in the box: "C" = copy without attachment / enclosure "E" = Copy with attachment / enclosure 'N" ,No copy s 10FFICE PM:PD{l/2l LA:PDIh2 6 D:PDil-2* D:DRPE ADPVM l0GC M / ffSRR /
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\, . . . . . p# Ouly 29, 1997 Michael D. Kohn, Esquire Kohn, Kohn & Colapinto, P.C.
3233 P Street, N.W.
Wsshington, DC 20007
Dear Mr. Kohn:
This letter provides the NRC staff reply to issues raised in your April 3, 1997, letter to Chairman Shirley Jackson, et al., in which you requested on behalf of your client, Mr. Marvin B. Hobby, that the Commission institute a review of Director's Decision DD-97-06 issued on March 18, 1997, in response to a petition you had filed pursuant to 10 CFR 2.206.
The Acting Secretary of the Commission informed you in an April 15, 1997, reply to your April 3, 1997, letter that your request for Commission review was denied. However, the Acting Secretary stated that the concerns raised in your letter had been forwarded to the staff for consideration and reply.
The staff has completed its review of the issues raised in your letter.
Enclosed of with this letter is a discussion of the results of the staff's review each issue. After careful consideration, the staff has determined that none of the issues warrant additional action by the NRC.
Sincerely, a i r or Office of Nuclear Reactor Regulation
Enclosure:
As stated
NRC STAFF REPLY TO ISSUES RAISED BY 10 CFR 2.206 PETITIONER REGARDING DIRECTOR'S DECISION DD-97-6 i
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- 1. BACKGROUND This enclosure addresses issues raised in a letter, dated April 3,1997, Mr. Michael D. Kohn, Esq., to NRC Chairman Shirley Jackson, et al., on behalf of client Mr. Marvin B. Hobby (Petitioner, who along with Allen Mosbaugh filed a 10 CFR 2.206 petition concerning the Hatch and Vogtle facilities). The April 3, 1997, letter asserted that 00-97-6, 45 NRC 144 (1997), was deficient in the following respects:
- 1. With regard to Petitioner's issue of an illegal transfer of control of the operations of the Vogtle Electric Generating Plant (Vogtle) from Georgia Power Company (GPC) to Southern Nuclear Operating Company, Inc. (SONOPCO or SNC), the NRC failed to consider controlling case precedent, and the NRC failed to adequately consider evidence that SONOPC0 Chief Executive Officer (CEO), Mr. Joseph M. Farley, was in control of plant operations instead of GPC President Mr. A. William Dahlberg.
- 2. 00-97-6 failed to address perjured testimony by GPC employees during hearings before the NRC Atomic Safety and Licensing Board (ASLB).
Specifically, DD-97-6 f ailed to show that the NRC took adequate enforcement action.
- 3. The NRC failed to acknowledge that GPC's December 10, 1991, petition response contained false statements concerning Tape 71 even though this issue was prominently briefed by intervenor during the licensing proceeding.
- 4. The staff failed to modify a Notice of Violation (NOV) to include a violation for falso statements made by GPC regarding diesel generator (DG) starting air quality.
- 5. Even though there were violations of 10 CFR 50.7 (Employee Protection),
DD-97-6 does not require GPC to reinstate Mr. Hobby. The staff should suspend or revoke the operating licenses until reinstatement is offered.
- 6. GPC made false statements in its April 1, 1991, response to the petition.
NRC is required to take enforcement action.
Mr. Kohn also represented Mr. Allen Mosbaugh in an NRC license amendment proceeding initiated in 1993 concerning the proposed innsfer of authority to operate the Vogtle facility from GPC to SON 0PCO. See DD-97-6, 45 NRC at 148-150. (Mr. Hobby was denied standing to intervene in that proceeding.)
Many of the issues raised in the license amendment proceeding were identified in the 10 CFR 2.206 petition file September 11, 1990, as supplemented September 21 and October 1, 1990 thereafter " Petition"). DD-97-6 was developed in large part based on tne extensive record developed during the Vogtle license amendment proceeding.
Enclosure
!!. NRC STAFF REPLY TO THE ISSUES A. 111eoal Transfer of Control The April 3 1997, letter states (at pp. 2-9) that DD-97-6 failed to consider (a) controlling legal precedent concerning illegal transfer and (b) evidence that Mr. Farley controlled plant operations at Vogtle.
- 1. Staff Consideration of Case Precedent The April 3,1997, letter states that the staff did not cite or consider Safety Liaht Coro. (Bloomburg Site Decontamination), 31 NRC 350 1990),
which was addressed in Intervenor briefs flied in the license ame(ndment proceeding, and provides a basis upon which to examine whether a transfer of control had occurred. The letter further stated that the staff did not consider Phoenix BroadfJLstino Co., 44 F.C.C. 2d at 839 and Stereo Broadcasters. Inc., 87 F.C.C. 2d 87, 93 (1981).
The letter is correct that these cases were not cited in DD-97-6.
However, relevant aspects of these cases were considered in weighing the issues raised by Intervenor and in the Petition. For example, Safety U ght, which held that the sale of the company was a transfer of control of licenses, posed the question of who has the ultimate right to decide how licensed activities should be conducted. 31 NRC at 362-370. The other cases emphasize elements of de facto control.
The staff considered whether the creation of the SON 0PC0 Project, an entity organized to provide support services to the operating companies (GPC and Alabama Power Company (APC)), and other issues raised by the Intervenor during the hearing and in the Petition (e.g., whether Mr. Farley of APC/ Southern Company, rather than Mr. Dahlberg. GPC's Chief Executive Officer, controlled activities at Vogtle based on Mr. Farley's involvement in (1) controlling daily operations; (2) establishing and implementing nuclear policy decisions; (3) employing, supervising, and dismissing nuclear personnel; and (4) controlling costs constituted a transfer of control. The staff found that GPC officials retained and exercised decision-making authority. The staff also considered whether the inaccurate or incomplete information regarding the formation of SONOPC0 was part of a pattern to deceive the NRC regarding control of the facility. DD-97-6, 45 NRC at 179-183, 231-257. The April 3, 1997, letter provides no new insight on these matters and does not otherwise demonstrate that the conclusions in DD-97-6 are erroneous.
- 2. The Question of Mr. Farley's Control of GPC Nuclear Plants The April 3, 1997, letter states that the NRC failed to adequately consider evidence that the SON 0PC0 CEO, Mr. Farley, was in control of plant operations instead of the GPC President, Mr. Dahlberg. Several references to the ASLB hearing record are made in the letter to provide examples of Mr. Dahlberg's lack of knowledge of the Vogtle Project and the functioning of the GPC Management Council. Information is also provided to show Mr. Farley's close proximity to GPC and the Vogtle Project.
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The April 3, 1997, letter reiterates Intervenor's claim during the ASLB licensing hearing that GPC falsely claimed that Mr. Dahlberg was in control of Plant Vogtle.
The question of Mr. Farley's control of the GPC nuclear plants was a prominent issue in the adjudicatory proceeding concerning the proposed license transfer, in that proceeding, Intervenor exhibits were examined and the testimony of witnesses, including Mr. Dahlberg, was considered.
As DD-97-6, 45 NRC at 253 states:
The record shows that Mr. Dalhberg visited plants periodically and the Vogtle facility at least twice in 1989, and was involved in nuclear operations. His " hands-on" management style referred to his oversight, his daily communications with the nuclear management, his plant visits, and his willingness to take calls periodically from the site. Intervenor Hearing Exhibit 32 at 4, 15; McCoy at 6-7; Transcript at 1153-59 (Dahlberg).
Therefore, the record does not su) port the allegation that the statement [that Mr. Dahlberg ins a personal hands-on relationshipw1ththemanagementattheplantsite)was inaccurate.
in addition, the staff found that GPC controlled the daily operations of the Vogtle facility. The staff also found that Intervenor witnesses lacked first-hand knowledge that Mr. Farley controlled Vogtle nuclear
~ operations. See, e.g., 45 NRC at 179-182, 231-241.
The April 3, 1997, letter provides no information that would cause the staff to reconsider its conclusion that GPC controlled operation of the Vogtle facility.
B. Submission of Perjured Testimony The April 3, 1997, letter (at p. 9) states that "(t]he Director's Decision fails to address issues related to the submission of perjured testimony (by GPC witnesses Messrs. Ken Stokes and R. Patrick Mcdonald) during the ASLB proceeding and fails to demonstrate that adequate enforcement action was taken." The letter asserts that Mr. Stokes changed his testimony regarding what he knew about moisture in the DG starting air system after he was informed of testimony from another witness (Mr. Johnston) that conflicted with his initial testimony. The April 3, 1997, letter further states that Mr.
Mcdonald: (1) provided testimony during the ASLB hearing that conflicted with his testimony in a Section 210 proceeding before the Department of Labor; (2) made several omissions and misrepresentations related to GPC's Emergency Plan; and (3) provided inconsistent testimony pertaining to the selection of two SONOPC0 vice presidents (Messrs. McCrary and Long).
The submission of perjured testimony in an NRC proceeding is a very serious m.tter and the staff remains vigilant regarding this matter during NRC hearings. If the staff believed that any witness in the Vogtle proceeding was
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committing perjury, the staff would have aggressively pursued the matter. The l
staff reviewed the prefiled testimony of GPC witnesses, including Messrs. Stokes and Mcdonald, and observed their oral testimony in response to questions from counsels for the Intervenor, GPC, and staff. The testimony given appeared to be the best recollections of the witnesses, often about events occurring 5 years earlier. Given the complexity of the issues and the protracted time over which the case evolved, the staff was not surprised that recollections were refreshed, in part, by information disclosed during the hearing. Mr. Mcdonald, in particular, had substantial difficulty understanding questions, recalling details, and articulating his thoughts during his oral testimony. The April 3 1997, letter, in fact, notes that Mr. Mcdonald's testimony about an organlzational chart became " convoluted."
Letter at 28.
Based on the totality of the circumstances, the staff has insufficient evidence to conclude that perjured testimony was given in the Vogtle hearing.
C. GPC's Response to the Petition The April 3, 1997, letter (at 18) states that the NRC failed to acknowledge that GPC's December 10, 1991, response to the Petition contained false statements made with total disregard for the truth concerning Ta)e 71 sven though this issue was prominently briefed by Intervenor during t1e licensing proceeding. The letter also states (at 19) that GPC altered the prefiled testimony of one of its witnesses (Mr. John Aufdenkampe) to support GPC's claim that Mr. Hairston did not )articipate in a particular telephone call on April 19, 1990, that addressed tie wording of a Licensee Event Report (LER).
These concerns relate to a question that was closely examined during the ASLB hearing, primarily due to the availability of the audiotape recordings made surreptitiously by the Intervenor: whether GPC deliberately attempted to deceive the NRC about Mr. Hairston's participation in a phone call regarding a revision of the LER on April 19, 1990. The staff considered GPC's December 10, 1991, response to the Petition, GPC's prefiled testimony, particularly that of Mr. Aufdenkampe described in the April 3, 1997, letter, and Tape 58 '
(the audiotape of the April 19, 1990, conversation). The assertion that incorrect punctuation in an audiotape transcript is evidence of a pattern of deception is difficult to support, particularly in light of the inability of Git, Intervenor, and the staff to agree on transcriptions of various tape segments. (e.g., D0-97-6, 45 NRC at 192.)
Nevertheless, the staff concluded that Tape 58 shows that Mr. Hairston did not participate in revising the LER during the April 19 phone call. DD-97-6, 45 NRC at 209. Minor transcription errors without substantive evidence of a falsehood did not persuade the staff that GPC tried to mislead the NRC, particularly since the tapes themselves (and not party-sponsored transcripts of tapes) were the best evidence of what was said. Therefore, the April 3, 1997, letter provides no evidence to support a finding that GPC acted with intent to deceive when they ended a statement on Tape 71 with a question mark instead of a period or exclamation point.
D. Notice of Violation The April 3, 1997, letter (at 23) states that the staff failed to modify a Notice of Violation (NOV) to include a violation for false statements made by GPC regarding DG starting air quality.
The question of whether enforcement action was appropriate for GPC's statements to the NRC regarding DG starting air quality was thoroughly reviewed by the staff. Based on this review, GPC's failure to provide complete information on DG starting air quality was included as one of five violations cited in the NRC's May 9, 1994, Notice of Violation and Proposed imposition of Civil Penalties - $200,000, and Demands for Information. GPC's required response was provided on July 31, 1994. Responses to the Demands for Information were also received from individuals and GPC on various dates.
The staff evaluated the responses and determined that four of the five initial violations should be retained. The staff further determined that GPC's statements regarding air quality presented in the April 9, 1990, letter were sufficient in scope as (1) GPC had an adequate technical basis to support a finding that air quality was acceptable; (2) the reference to " initial reports of higher than expected dewpoints" was part of GPC's effort to 3 resent a comprehensive review of past air quality problems; and (3) the listorical information was not necessary for a restart decision. Violation B pertaining to DG starting air quality was withdrawn, but the initial proposed $200,000 civil penalty was not adjusted in the February 13, 1995, Modified Notice of Violation and Proposed imposition of Civil Penalties - $200,000.
After more information was developed about the matter at the ASLB hearing, the staff concluded in DD-97-6, 45 NRC at 211-214, that:
The April 9, 1990, letter was incomplete, as it did not indicate that high readings were also caused by technicians being unfamiliar with a dewpoint instrument.... While the letter's reference to " initial reports" is ambiguous, all high dew point measurements taken near the time of the SAE (site area emergency) and prior to April 9 could have influenced an NRC decision on restart.
The evidence does not establish that GPC acted with reckless disregard for the truth, intentionally misrepresented information or conspired to mislead the NRC in communications concerning DG air quality. GPC took reasonable steps to determine air quality (including the receiver inspection) and performed blowdowns on the air receivers to remove any moisture that could affect DG performance and generally kept the NRC informed about their activities. While GPC provided incomplete information about the causes of high dew point readings...(t]he evidence considered as a whole falls short of demonstrating that GPC engaged in making willful recklessly careless misrepresentations and does not otherwise show that GPC lacks the requisite character and integrity to operate a nuclear plant. (Citations omitted)
While facts disclosed at the hearing would support imposing a revised violation B concerning GPC air quality statements, the staff believes that the
, 6-hearing record and D0-97-6 are sufficient to document GPC's inadequate oerformance on this matter. Moreover, inclusion of this violation would not aave altered the severity level of this very serious violation, and would not have affected the scope of the corrective actions. Thus, there is no need to revise the Notice of Violation or DD-97-6 as the April 3, 1997, letter urges.
E. Reinstatement of Mr. Hobby The April 3, 1997, letter states, beginning on page 26, that:
The Director's Decision is deficient in that it does not recuire Georgia Power to offer Mr. Hobby reinstatement when it founc that Georgia Power terminated him for engaging in protected activity.
Pursuant to 10 C.F.R. I 50.7(c), NRC Staff is authorized to and should revoke or sus)end SONOPCO's license until GPC and 50NOPC0 management acknowledge t1at they violated 10 C.F.R. $50.7 and take the nnly meaningful corrective :ction to rectify the chilling effect stemming from the illegal discrimination -- the offer of reinstatement to Harvin Hobby. (Emphasisinoriginal.)
The staff is aware of its options under the provisions of 10 CFR 50.7 which include, inter alf a, the issuance of a denial, revocation, or su(c),
spension of a license based on a licensee committing a violation of 10 CFR 50.7. In fact, on May 29, 1996, the staff took enforcement action pursuant to 10 CFR 50.7(c)(3) by issuing a Notice of Violation citing GPC for two separate Severity Level I violations for their discrimination against Messrs. Hobby and Mosbaugh. The staff's view of the seriousness of GPC's actions is reflected in its May 29, 1996, letter to GPC, which states, in part:
These violations are of very significant regulatory concern because they involved acts of discrimination by senior corporate management.
The NRC places a high value on the freedom provided to nuclear industry employees to raise potential safety concerns to licensee management or to the NRC. Section 210 (now 211) of the Energy Reorganization Act and 10 CFR 50.7 establish strict requirements for the protection of employees against discrimination for raising nuclear safety issues and the NRC Enforcement Policy calls for significant enforcement action in cases where senior corporate management violate these requirements. Therefore, these violations have been categorized in accordance with the General Statement of Policy and Procedure for NRC Enforcement Actions (Enforcement Policy), NUREG-1600, at Severity Level I.
The provisions of 10 CFR 50.7(c)(2) for the imposition of civil penalties could have been imposed had expiration of the Statute of Limitations not precluded this option. See letter from NRC (S. Ebneter) dated May 29, 1996, to GPC (ATTN: G. Hairston), at 3. Furthermore, in DD-97-6, 45 NRC at 225, it was concluded that:
Mr. Hobby's allegation that he was unlawfully dismissed because of a concern about the improper transfer of control of licensed activities is substantiated by the Secretary's decision of August 4,1995.
Mr. Hobby's regulatory concern regarding transfer of control constituted a protected activity.... Therefore, Mr. Hobby's dismissal because he expressed this regulatory concern is a violation of 10 CFR 50.7. I am satisfied that the NRC has taken appropriate enforcement action to prevent the recurrence of violations of 10 CFR 50.7 in the future, and to ensure a proper environment in which employees can express regulatory concerns without fear of retaliation, harassment, intimidation, or discrimination. To the extent that Petitioners' request for NRC involvement relates to matters properly within the jurisdiction of the NRC, the request has been granted by means of these enforcement actions. [Footnoteomitted)
The April 3,1997, letter does not provide any new information that would cause the staff to reassess this conclusion.
Finally, as a matter of process and procedure, the staff notes the following regarding the assertion that DD-97-6 is deficient in that it does not require GPC to reinstate Mr. Hobby. An NRC order is the pro)er vehicle for such an action, however, given that (1) the Department of La)or proceeding regarding Mr. Hobby's discrimination complaint is in the remedy phase and is still pending, (2) matters of pay and reemployment are within the purview and expertise of DOL, and (3) reinstatement is a remedy available in that proceeding, NRC action is not warranted.
F. Enforcement Action for False Statements The April 3, 1997, letter (at 27-41) states that the NRC is required to issue a Notice of Violation for misleading or incomplete statements by GPC in responses to the Petition. The letter provides four instances of such statements by GPC.
The General Statement of Policy and Procedures for NRC Enforcement Actions was published in the Federal Reaister on June 30, 1995 (60 FR 34,381-403). This policy states in part that:
The purpose of the NRC enforcement program is to support the NRC's overall safety mission in protecting the public and the environment.
Consistent with that purpose, enforcement action should be used:
As a deterrent to emphasize the importance of compliance with requirements, and To encourage prompt identification and prompt, comprehensive correction of violations.
... Each enforcement action is dependent on the circumstances of the case and requires the exercise of discretion after consideration of these policies and procedures. (FR at 34383)
The staff has reviewed the April 3, 1997, letter and has determined the following with regard to the four instances:
- 1. The April 3, 1997, letter states that GPC falsely asserted in its April 1, 1991, response to the Petition that Mr. Hobby was given a Phase I organization chart when he was provided a May 15, 1989, memorandum. The
letter states that the assertion by GPC that the May 15, 1989, memorandum depicted the Phase I organization or explained Mr. Farley's role in the SONOPC0 project is false, and,
- 2. The April 3, 1997, letter states that GPC made a false assertion in its April 1, 1991, Petition response by claiming that Exhibit B-2 of the June 1988 Southern Electric Company filing was a copy of the Phase I organizational structure, which commenced operation on about November 1, 1988, and it falsely portrays Mr. Farley's role and management authority within the SONOPCO Project. The letter asserts that after November 1988, the GPC Management Council, contrary to GPC's assertions in its under-oath response to the Petition, ceased having any significant input or control over GPC nuclear operations.
These issues were included in "Intervenor's Prehearing Statement of Issues" filed with the ASLB on December 12, 1994. Specifically, in issue 10 (of 28 issues), Intervenor alleged that GPC's April 1, 1991, Petition response falsely stated that certain organizational charts, including a May 15, 1989, memorandum, accurately depicted GPC's organizational structure in that Mr. Mcdonald was not shown as reporting to Mr. Farley and Mr. Farley was not shown as the de f acto Chief Executive Officer of the SON 0PC0 Project. Intervenor also asserts, in Issue 14A, that GPC's April 1, 1991, response to the Petition is false in stating that the GPC Hanagement Council functioned as a policy-setting body and made corporate resource allocation decisions because, in late 1989, the GPC Management Council did not participate in the review of GPC's 1990 nuclear operating budget. DD-97-6, 45 NRC at 249.
The question of Mr. Farley's control of the SONOPC0 Project through influence over Mr. Mcdonald was carefully examined during the ASLB hearing and is well documented. Based on a consideration of the evidence, in DD-97-6, 45 NRC at 240, it was concluded that:
In summary, Intervenor's assertion that Mr. Farley functioned as the de facto Chief Executive Officer of the SON 0PCO Project is not supported by the record. Mr.
Mcdonald did not report to Mr. Farley regarding GPC licensed activities. The items cited do not demonstrate that Mr. Farley exercised control over licensed activities at GPC's nuclear facilities during his involvement in the SONOPC0 Project. Rather, the record shows that GPC controlled the daily operations of the Vogtle facility in accordance with a chain of command extending from the Vogtle General Manager, through the Vice President of the Vogtle facility, through the Senior Vice President -
Nuclear Operations, through the Executive Vice President -
Nuclear Operations, to the President and CEO of GPC.
D0-97-6, 45 NRC at 249, also found that the hearing record shows that Intervenor's assertion regarding the functioning of the GPC Hanagement Council was incorrect in that the Council reviewed the 1990 nuclear budget
i as part of the total GPC budget review before approval by the GPC President, Mr. Dahlberg.
The April 3, 1997, letter does not provide any new information and therefore no enforcement action is warranted.
- 3. The April 3, 1997, letter (at 31-35) asserts that two statements by GPC in subsequent clarifications to its April 1, 1991, Petition denying Mr. Hairston's participation in an April 19, 1990, telephone call are false. The clarifications identified in the letter are dated October 3 and December 10, 1991.
In DD-97-6, the staff considered whether these documents showed GPC intentionally provided incorrect information. These assertions of falsehood hinge upon a finding that Mr. Hairston substantively participated by telephone in the revision of a draft LER on April 19, 1990. As noted in item 3, above, Mr. Hairston did not. The failure to accurately identify all the participants in phone conversations regarding the LER over a year earlier was among numerous mistakes GPC made in providing information on the DG issue. The April 3, 1997, letter provides no information that would alter the conclusion in DD-97-6, 45 NRC at 209, that there was insufficient evidence to conclude GPC knowingly provided false information in the October 3 and December 10, 1991, letters.
- 4. Performance Indicators The April 3, 1997, letter (at 35-41) alleges that (1) 0D-97-6 is deficient in that it fails to take into consideration the prefiled ASLB testimony of Mr. Michael Barker on the development of nuclear plant performance indicators for the Public Utilities Commission and (2) GPC's reliance on this matter as an example of Mr. Mcdonald reporting to Mr. Dahlberg (both of GPC) constitutes a false and misleading statement because Mr. Mcdonald followed instructions from Mr. Farley on the development of alternative performance indicators.
The weight given by the staff to Mr. Barker's arefiled testimony is based on the totality of records on this issue that lave been developed. Mr.
Barker was not called (by any party) to appear as a witness and, thus, the basis for his statements were not considered at the hearing. The testimony of Messrs. Mcdonald, Dahlberg, and Farley, established that Mr. Mcdonald's views, and his directions to the GPC staff, were similar to Mr. Farley's views, and that Messrs. Mcdonald and Farley may have discussed performance indicators; however, there was no showing that Mr. Mcdonald's actions flowed from being so ordered by Mr. Farley. As DD-97-6, 45 NRC 243, states:
The hearing record does not support Intervenor's assertion that Mr.
Mcdonald did not follow Mr. Dahlberg's instructions. Messrs.
Mcdonald and Dahlberg both testified that a decision was made at the August 10, 1989, meeting to be prepared to propose alternative performance standards, if necessary, and that this strategy was carried out in the handling of the 1989 rate case. Prefiled
-..J
l Testimony of A. William Dahlberg, !!!, ff. Transcript at 1061,
! "Dahlberg, at 17; Mcdonald at 15-17; Transcript at 1102-22, 1137-41 (Dahlberg),1504 (Mcdonald). Mr. Farley received copies of the draft testimony to be submitted to the Georgia Public Service Commission, but he neither a> proved nor disapproved it. Farley at
- 34. He was in agreement witi Mr. Dahlberg's decision that GPC should be prepared to propose alternative performance standards, if necessary. Transcript at 1108-09 (Dahlberg). Such actions do not indicate control of nuclear operations or budget policy.
The information provided in the April 3, 1997, letter does not warrant a conclusion to the contrary.
111. CONCLUSION In summary, the issues raised by the April 3, 1997, letter were considered by the staff in preparing 0D-97-6 and none of the matters identified warrant additional action by the NRC.
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EDO Principal Correspondence Control FROM: DUE: 04/29/97 EDO CONTROL: G970253 DOC DT 04/03/97 FINAL REPLY:
Michael D. Kohn Kohn, Kohn & Colapinto Law Firm TO:
Chairman Jackson FOR SIGNATURE OF : ** GRN ** CRC NO: 97-0332 office Director DESC: ROUTING:
APPEAL TO INSTITUTE A REVIEW OF DD-97-05, Callan CONCERNING FILINNGS ALLEGING ACTS AND OMISSIONS ON Jordan THE PART OF GEORGIA POWER AND SOUTHERN NUCLEAR Thompson Norry Blaha Burns DATE: 04/15/97 Reyed, RII Lieberman, OE ASSIGNED TO: CONTACT: Cyr, OGC NRR Collins SPECIAL INSTRUCTIONS OR REMARKS:
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Reference EDO-5836. /
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NRR RECEIVED: ADRIL 15, 1997 , .. , .
NPR ACTION: DRPE:VARGA ts iJi . . . ....,u.. ci .
NRP ROUTIING: ,
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l THADANI ZIMMERMAN
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MARTIN TRAVERS B0HRER J
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PAPER NUMBER: CRC-97-0332 LOGGING DATE: Apr 15 95 l
ACTION OFFICE EDO AUTHOR: MICHAEL KOHN AFFILIATION: DISTRICT OF COLUMBIA ADDRESSEEt- CHAIRMAN, COMRS LETTER DATE: Apr 3 97 FILE CODE IDR S VOGTLE
SUBJECT:
APPEAL TO INSTITUTE A REVIEW OF DD 97-06, CONCERNING FILINGS ALLEGING ACTS AND OMISSIONS ON THE PART OF GEORGIA POWER AND SOUTHERN NUCLEAR ACTION: Direct Reply DISTRIBUTION: CHAIRMAN, COMRS, OGC, DSB
-SPECIAL HANDLING: SECY TO ACK CONSTITUENT:
NOTES:
DATE DUE: Apr 29 97 SIGNATURE: . DATE SIGNED:
AFFILIATION:
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