ML20034G718
| ML20034G718 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 03/08/1993 |
| From: | Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20034G719 | List: |
| References | |
| CON-#193-13697 LBP-93-05, LBP-93-5, OLA-3, NUDOCS 9303110090 | |
| Download: ML20034G718 (10) | |
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uwt UNITED STATES OF. AMERICA NUCLEAR REGULATORY COMMISSION 93 gg.9 P 3 :25 i
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD...
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an y
In the Matter of
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Docket Nos.
50-42 SOI.A-3 "
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50-425-OLA-3 i
GEORGIA POWER COMPANY
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et at
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Re: License Amendment
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(Transfer to Southern (Vogtle Electric Generating Plant,
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Nuclear)
Units I and 2)
)
NRC STAFF'S RESPONSE TO LICENSING BOARD MEMORANDUM AND ORDER (ADMITTING PARTY)
L INTRODUCTION
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i The Staff replies to questions propounded to the Staffin the Licensing Board's Memorandum and Order, LBP-93-5 (February 18, 1993).
The Staff shows that i
t discovery against the Staff is not appropriate at this time, in view of the Commission's
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l policy reflected in the " Statement of Policy; Investigations, Inspections, and Adjudicatory i
Proceedings" (49 Fed. Reg. 36,032); Memorandum of Understanding between the' j
Nuclear Regulatory Commission and the Department of Justice (53 Fed. Reg. 50,317);
l and the Statement of Consideration on " Revision to Procedures To Issue Orders:
Challenges To Orders That Are Made Immediately Effective" (57 Fed. Reg 20,194).
The Staff has no objection to other discovery going forward. In addition, in light of the i
provisions regarding discovery against the NRC Staff,10 C.F.R. E$ 2.740(f)(3),2.744 and 2.790, discovery against the Staff with respect to documents pertaining to ongoing investigatory efforts should not commence. Discovery of the Staff investigative or j
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inspection material may be appropriate after the investigation is finished in about four to six months, and the hearing can go forward 45 days after any requested and granted e
discovery.
BACKGROUND By Memorandum and Order (Admitting a Party), LBP-93-5, February 18,1993, l
at 28, the Licensing Board admitted Allen L. Mosbaugh as a party to this proceeding and j
a single contention reading:
1 The license to operate the Vogtle Electric Generating Plant, Units 1 and 2, should not be transferred to Southern I
Nuclear Operating Company, Inc., because it lacks the requisite character, competence and integrity, as well as the necessary candor, truthfulness and willingness to abide by _
regulatory requirements.
The order further provided that discovery should commence immediately, and that l
the parties should commence negotiations concerning a possible protective order in relation to discovery and suggest a schedule for discovery and furt'ler proceedings. Id.
l The Board further ordered, inter alia, that the Staff should file a brief by March 8,1993, showing why discovery of prosecution related documents, which are involved here, should not commence immediately, and providing that other parties were to respond to that brief by March 18,1993. Id. at 28-29.
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i' In connection with this brief, the Board further directed the Staff to answer the following questions:
l (1) What deadline, if any can the Staff agree to as the latest date that discovery can start?, (2) How does the l
Staff compare the importance of the civil questions relating to the adequate assurance of safety for the continued i
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i operation of the plant and a decision on the license amendment, to the imponance of possible criminal prosecution?
Id. at 27.
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DISCUSSION Both the contention and the current enforcement and criminal investigation involve the issue of whether named officers of the licensee made material false statements to the NRC.
AfSdavit of Ben B. Hayes, attached hereto. The same purportedly false statements by the same officers of the licensee are involved in both instances, and the evidence that might be relevant to these matters is the same. See Id, at 9,17, 24, attached af5 davit.
The Commissioner's Office ofInvestigations believes disclosure of these materials could jeopardize enforcement activities and the Department of Justice believes that disclosure of material relevant to the contention could adversely affect an ongoing I
criminal investigation. See attached Affidavit of Ben B. Hayes and letter from Sally Yates, Assistant U.S. Attorney, to Charles Barth, NRC, dated February 23,1993. The investigation should be finished in four to six months. Hayes Affidavit at 3.
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The possible enforcement and criminal proceedings have a greater importance to safety than a decision on the license transfer l
amendment The Board has ask.ed the Staff:
How does @e Staff compare the importance of the civil questions relating to the adequate assurance of safety for the continued operation of the plant and a decision on l
the license amendment, to the importance of possible criminal prosecution?
i Id. at 27.
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In asking for deferral of discovery pending conclusion of the possible criminal 6
prosecution and possible enforcement proceedings, the Staff has concluded that the i
possible criminal prosecution is more important from a safety perspective than "a decision on the license amendment." As the Staff previously observed in the "NRC Staff Response To Licensing Board Questions," dated February 5,1993, at 4-6, the question of the integrity of a license applicant, and its officials, is a matter of concern to the NRC i
in regard to the necessary health and safety finding that must be made. See also LBP '
5 at 7-9. The license amendment involved here would permit a transfer of the operation of Vogtle from one subsidiary of the Southern Corporation to another subsidiary of that l
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l company. No showing has been made or has been suggested that this license amendment is necessary for safety, whereas a possible criminal prosecution or enforcement action j
3 may have safety implications. A determination of whether the amendment can be issued l
with an adequate assurance of safety can await the possible criminal prosecution and the l
possible enforcement action.
"[Q)uestions relating to the adequate assurance of safety for continued operation of the plant" (/d.) are before the Staff by virtue of the Staff's regulatory duties regarding the safe operation of licensees' facilities and by virtue of a petition filed by Mr.
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Mosbaugh under 10 C.F.R. $ 2.206, to shut the plant on the basis of the same purportedly material false statements that underlie the contention herein. The Staff has, to date, deferre~ the consideration of that 2.206 petition pending the results of the f
criminal investigation, and, thus, has similarly concluded, in that context, that immediate
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action on the petition is not necessary for assurance of adequate safety at this time.
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i Again, at this time, the possible criminal prosecution is viewed by the Staff as more important from a safety perspective than suspending continued operation of the plant.
2.
Orders providing for discovery against the Staff are not yet approoriate i
In LBP-93-5, at 28, the Licensing Board asked the Staff to address "Why l
discovery of prosecution-related documents should not commence immediately." The Staff maintains that immediately commencing discovery of the Staff in regard to f
i prosecution-related documents would not be proper.
The Commission has provided for those situations in which a balance must be struck between going forward with a hearing and delaying it to prevent the compromise of an ongoing investigation of either a civil or criminal nature. In the " Statement of Policy; Investigations, Inspections, and Adjudicatory Proceedings," 49 Fed. Reg. 36,032, 36,033 (1984), the Commission, in dealing with " Board notifications," indicated that j
investigatory material was not to be prematurely released so as to compromise investigations and inspections. Careful guidelines were provided for the consideration l
1 of such material in camera, and in certain instances, on a ex pane basis, and the 4
Commission stated that "In many cases when the procedures in this Policy Statement are triggered by concern for premature disclosure, it may be possible for Boards to provide j
for the timely consideration of relevant matters derived from investigations and inspections through the deferral or rescheduling ofissues for hearing."'
None of the parties herein oppose deferral of this proceeding. See Tr 101; Georgia Power 2
Company's Application For A Stay Of The Licensing Board's February 18,1993, Memorandum l
and Order Admitting a Party, date March 4,1993.
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. 4 Consistent with the foregoing principle, the " Memorandum of Understanding Between the Nuclear Regulatory Commission and the Department of Justice," 53 Fed.
l Reg. 50,317,50,318 (1988), indicates that the NRC will consider and accommodate the views of the Department of Justice, "to the fullest extent possible, consistent with regulatory action required," including seeking a stay of discovery and hearings rights i
upon the request of the Department of Justice where criminal proceedings are being cor. -mplated.
And, most recently, in the 1992 Statement of Consideration on the " Revision To Procedures To Issue Orders:
Challenges To Orders That Are Made Immediately Effective," 57 Fed. Reg. 20,194, 20,197, the Commission stated that, "A prime example
[of a need to delay a proceeding] would be the temporary need to halt the proceeding where continuation would interfere with pending criminal investigation or jeopardize prosecutions."
Here, we do not have an immediately effective order which could suspend or revoke a license, an action initiated to assure the continued protection of the public health and safety, but an application to transfer a license from one subsidiary of a public utility holding company to another subsidiary, an action proposed to facilitate the licensee's operation. A delay of this proceeding appears on its face to be less violative of rights than a delay of a hearing on an immediately effective order which might suspend or revoke a license. "Due process requires only that an opportunity be granted at a meaningful time in a meaningful manner for a hearing appropriate to the i
nature of the case.... What is meaningful depends on appropriate accommodation of i
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the competing interests involved." Id.' Public interest indicates that this proceeding, which does not affect the public health and safety, should be delayed pend.ag the i
outcome of the possible criminal and enforcement proceedings.
Although at this stage of this proceeding specific discovery requests have not been made, it must be kept in mind that discovery of the Staffis different from discovery of other parties. Pennsylvania Fourr and Light Company (Susquehanna Steam Electric Station, Units 1 ad 2), ALAB-613,12 NRC 317,323 (1980). The regulation provides for definite steps to be followed before discovery is ordered against the Staff, and, until those steps are followed, no discovery can be ordered of the Staff. Under 10 C.F.R. f 2.740(f)(3),10 C.F.R. f f 2.744 or 2.790 are applicable to the production of documents P
from the Staff. Where a document is not available pursuant to 10 C.F.R. f 2.790, a request for that document is to be made to the Executive Director of Operations. 10 C.F.R f f 2.744(a).' Among the documents not available under f 2.790 are records or information compiled for law enforcement purposes to the extent those records could i
reasonably be expected to interfere with enforcement proceedings or to disclose the identity of a confidential source. 10 C.F.R. f 2.790(a)(7)(i) and (iii). If the Executive Director objects to producing such a record or document, an application must be made i
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Delays as long as 18 months in civil proceedings pending the conclusion of criminal 2
investigations have been determined not to be violative of due process. See United States v.
Eight Hundred Fifty Dollars (S850),461 U.S. 555,568-69 (1983); United States v. Treasury Bills Totalling 5160,916,25,750 F.2d 900,902 (11th Cir.1985).
By its terms 10 C.F.R. { 2.744, in contrast to other discovery rules, may only be 2
applicable to an "an initial licensing proceeding." If that is the case, under 10 C.F.R. 5 i
2.740(f)(3), only 10 C.F.R. 5 2.790 would be applicable to the production of documents from the Staff.
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to the Board, setting forth the relevancy of the document sought.10 C.F.R. ( 2.744(c).
It is only after the Board has examined the material sought in camera - to see (1) whether f
the material is relevant, (2) whether it is exempt from disclosure under i 2.790, (3) whether its disclosure is necessary in the proceeding, and (4) whether the information r
therein is not obtainable from another source - that the Board may order production of the document, subject to necessary protective conditions. 10 C.F.R. f 2.744(c), (d) and (e).' There are sound polic; reasons to require a request for specific documents, a formalized requirement for the rejection of such a request, and a motion that.must meet 4
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particular tests - before the records that are ordinarily exempt from disclosure are l
released. Matters exempt from disclosure are not lightly to be released, and it is only I
when they are shown to be necessary for a proper decision that they should be revealed.
i When dealing with matters relevant to investigations and inspections and possible 2
enforcement or criminal proceedings, as in this case, the Commission has many times indicated that a careful balancing is necessary to weigh the rights to prompt hearings on licensing matters against possible harm to an enforcement or a criminal proceeding.
4 Section 2.744, together with 6 2.790(a)(7), sets the balancing required before the release i
of investigatory and inspection material. Here, we do not have a request or a motion for l
j discovery of any specific document or record or showing that specific records or i
- The failure of any party to identify and request any prosecution-related document from f
the Staff makes it particularly inappropriate to issue any order at this time in relations to those documents. There is no indication whether documents which may be sought may have been created or generated by Mr. Mosbaugh, records of interviews, notes of investigation impressions, the identification of informants, a discussion of investigative strategy, unfinalized reports, or other matters. Absent the identification of documents sought no determination can be made as to the appropriateness of the release of the material, or the conditions which should be imposed on the release of particular documents.
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documents which may be sought are relevant or necessary for a proper decision in this proceeding. Moreover, there is no showing that the documents or records are not obtainable from another source, as required by 10 C.F.R. 6 2.744, as a predicate to discovery of the Staff. It may well be that any document or record sought may be in the possession of other parties to the proceeding, thus obviating any need for discovery of the Staff. Not only is there no request by a party for a record from the Staff, there is not even the identification of a document c record so as to permit the weighing required by 10 C.F.R. I 2.744 to see if discovery of the Staffis appropriate.5 In this situation, 4
no discovery agamst the Staff can commence in regard to documents which are ordinarily exempt from disclosure and it would be premature for the Board to issue a discovery order.*
3.
Discovery against the Staff would be appropriate in four to f
six months j
i The Licensing Board, in LBP-92-5, asked the Staff, "What deadline, if any, can the Staff agree to as the latest date that discovery can start?" and to set out a suggested schedule for the case. Id. at 27,29. The Staff believes discovery of the Staff, upon i
compliance with 10 C.F.R. I 2.744, can begin in four to six months. The Staff has no objection to other discovery going forward. The Staff would be. prepared to go to i
hearing 45 days after the completion of all requested and granted discovery.
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5 See note 2, above.
In order to obtain other documents from the Staff in discovery, a party must first show they are not otherwise available in the Commission's public document rooms or from another 4
source. See Susquehanna,12 NRC at 323. At such time as discovery may properly sought from the Staff, consideration will be given to the possibility of executing a protective agreement with other panies.
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- - CONCLUSION The possible enforcement and criminal proceedings are of more importance than this proceeding seeking transfer of the Vogtle license from one Southern Corporation subsidiary to another. Discovery of the Staffis not now appropriate because regulatory requirements have not been met and because it would be contrary to Commission policy.
The Staff further estimates that the investigations will be complete in approximately six months and that hearings may be conducted 45 dujs after requested and granted discovery is completed.
Respectfully submitted,
[
s Edwin J.
eis Deputy ssistant General Counsel for Reactor Licensing Dated at Rockville, Maryland this Sth day of March 1993 1
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