ML20034G737
| ML20034G737 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 03/04/1993 |
| From: | Lamberski J GEORGIA POWER CO., TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#193-13677 OLA-3, NUDOCS 9303110121 | |
| Download: ML20034G737 (18) | |
Text
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33 mR -5 All :41 UNITED STATES OF AMERICA i,a e e 4
s NUCLEAR REGULATORY COMMISSION ik L" i' ' "; y " 'N BEFORE THE COMMISSION O
In the Matter of.
lO GEORGIA POWER COMPANY, Docket Nos. 50-424-OLA-3 50-425-OLA-3 g g.
Re: License Amendment (Vogtle Electric (Transfer to Southern Generating Plant, 1O Nuclear)
Units 1 and 2)
O GEORGIA POWER COMPANY'S APPLICATION FOR A STAY OF THE LICENSING BOARD'S FEBRUARY 18, 1993 MEMORANDUM AND ORDER ADMITTING A PARTY t O O
John Lamberski Counsel for Georgia Power Company O
March 4, 1993 9303110121 930304 PDR ADOCK 05000424 O
-o
l^
O I.
Introduction.
'O By memorandum and order dated February 18, 1993, the Atomic Safety and Licensing Board (the " Board") ordered, among other things, that (1)
Petitioner Allen L.
Mosbaugh be
- g admitted as a party to this case, (2) one reconstituted contention be admitted, and (3) discovery commence immediately (the " Board's Order").
g Georgia Power Company ("GPC") hereby applies for a stay of the effectiveness of the Board's Order, pursuant to 10 C.F.R. S 2.788, pending a decision by the Commission on GPC's 0
appeal of the Board's Order pursuant to 10 C.F.R.
S 2.714a.
Counsel for the NRC Staff has stated that, as of March 1, 1993, the NRC Staff was also planning to file an application O
to stay the Board's Order and that the NRC Staff did not object to Georgia Power's stay request.1/
O II.
p_a ckarou nd.1/
The Board's Order admitted the following contention:
O The license to operate the Vogtle Electric Generating Plant, Units 1 and 2,
should not be transferred to Southern 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.
O Il During the January 12, 1993 prehearing conference in this matter, Michael Kohn, counsel for Mr. Mosbaugh, indicated that he did not oppose a Staff-requested delay of as much as six months in these proceedings.
Tr. at 101.
However, when contacted by O
c unsel for GPC, Mr. Kohn stated that he is opposed to GPC's current stay request.
1/ For a more detailed discussion of the background of this case, refer to GPC's Notice of Appeal of the Licensing Board's February 18, 1993 Order, dated March 4, 1993.
O
O
!O At least some aspects of the petitioner's "f actual basic" for this contention are currently the subject of a DOJ inves-tigation.
See "NRC Staff Response to Allen L.
Mosbaugh's lO Amendments to Petition to Intervene and Request for Hearing and Contingent Motion to Defer the Staff's Reply to Conten-l l
tions and Rulings of Contentions," dated December 3'1,
- 1992, 10 at pp.
6-7.
While GPC strenuously denies that any of its employees have engaged in wrongdoing, if discovery is allowed to proceed in this proceeding, in all likelihood, GPC and O
certain of its employees will be subject to discovery requests on the same allegations being investigated by DOJ.
The Board's Order seeks to resolve this dilemma by
>O requiring that: (1) "[n]egotiations among the parties shall commence immediately, concerning: (a) a protective order and an insulating wall that might make the discovery of investiga-O tive documents possible at this time...," and (2) "[o]n March 8,
1993, the Staff shall file a brief showing cause why discovery of prosecution-related documents should not commence O
immediately." GPC appreciates the Board's interest in trying to move the proceeding ahead expeditiously; however, even the Board's Order recognizes that its interest in promptly and O
efficiently adjudicating this case is in conflict with the interest to protect the confidentiality of documents under the DOJ investigation.
Board's Order at 26.
The Board concluded O
that these conflicting interests could be harmonized "if the parties could reach an agreement on how the relevant informa-O
O O
tion can be shared pursuant to a protective order that contains a carefully constructed provision that would keep all l
potential defendants, and all potential counsel for those O
defendants, ignorant of the contents of the investigation."
It is not clear that this will adequately address the problem of protecting the investigative materials.
In any event, the Q
Board does not try to address the problem of the rights of individuals who are or may be subjects of the investigation 1
and of discovery in this proceeding, concurrently.
l l
O III.
Grounds for GPC's Stav Reauest.
There are four factors which must be considered in o
determining whether to grant or deny an application for a stay:
(1)
Whether the moving party has rade a strong showing that it is likely to prevail on the merits; O
(2) Whether the party will be irreparably injured unless a stay is granted; (3)
Whether the granting of a stay would harm other parties; and O
(4)
Where the public interest lies.
10 C.F.R. 5 2.788(e).U It has been held that the most crucial of the four O
factors of Section 2.788 is the second factor: whether the novant will incur irreparable injury absent a stay.
See PSNH U These factors are the same as those that the courts apply O
in granting or denying a stay pending appeal.
Public Service Company of New Hampshire ("PSNH") (Seabrook Station, Units 1 and 2), CLI-90-3, 31 NRC 219, 257 (1990). O
O at 258 citina Alabama Power Company (Joseph M. Farley Nuclear O
Plant, Units 1 and 2), CLI-81-27, 14 N.R.C. 795, 797 (1981).
If the Board's Order is not stayed, GPC employees could be O
subject to depositions and interrogatories on precisely the same issues that are being investigated by the DOJ.
This situation has the potential for undermining the Fifth Amend-O ment privilege rights of GPC employees, expanding the rights of criminal discovery beyond the limits of Federal Rule of Criminal Procedure 16(b), exposing the basis of GPC's and its employees' defenses to any criminal prosecution in advance of g
a trial, or otherwise prejudicing the case.
See SEC v.
Dresser Industries. Inc., 628 F.2d 13 68, 1378-79 (D.C. Cir.
O 1980).
In Dresser, the court held that "a court may decide in its discretion to stay civil proceedings, postpone civil impose protective orders and conditions 'when discovery, or the it.cerests of justice seem[] to require such action....'"
g Id. at 1375, ouotina United States v.
Kordel, 397 U.S.
1, 90 S.
Ct. 763 (1970).
While the potential for harm is clearest when the party defending simultaneous civil and criminal O
proceedings is under indictment, the potential for harm is equally present when the criminal case is in the investigative o
stage.
The potential for harm is increased when, as in this case, the party subject to simultaneous proceedings is being opposed by a hostile, non-governmental third party who is unconstrained by due process considerations.
In this case, o
pursuant to the Board's Order, petitioner Mosbaugh would 4 _
.O
O O
receive broad discovery rights while GPC would be kept
" ignorant" of information relevant to this proceeding.
Mr. Mosbaugh's hostility towards GPC transcends this O
administrative proceeding.
In June 1990, he filed a claim against GPC with the Department of Labor which has been decided, in GPC's favor, by an administrative law judge and O
which Mr. Mosbaugh has appealed to the Secretary of Labor.
On September 11, 1990, Mr. Mosbaugh filed a petition with the NRC containing numerous allegations of wrongdoing on the part O
of GPC employees, some of which allegations form the basis for his case in this proceeding.
It is also clear that Mr.
Mosbaugh has been assisting investigators in the NRC Office o
of Investigations with the DOJ investigation.
- Eeg, e.o.,
e l
Amendments to Petition to Intervene and Request for Hearing of Allen L.
Mosbaugh, dated December 9,
- 1992, n.
13.
Addi-
,o tionally, Mr. Mosbaugh and his counsel have utilized the media to publicize his allegations. See a compendium of recent news I
articles attached hereto as Exhibit A.
Mr. Mosbaugh's past O
actions indicate that he is likely to use this proceeding to seek information that could be improperly used in the DOJ investigation.
He is also likely to use this proceeding to O
further sponser publicity in the media harmful to GPC and its employees.Il GPC submits that such adverse publicity and II Indeed, at the end of the January 12, 1993 prehearing O
conference, Mr. Mosbaugh's counsel indicated that the proposed license amendments should be denied to " alert [] the public to the fact that [GPC's] current management structure is potentially liable for criminal conduct...."
Tr. 105. O
O O
other injury it will incur if the stay is not granted con-stitute special circumstances which require a stay in this case in the interests of justice and fairness.
O Aside from the potential harm that GPC will incur if this stay is denied, the Board itself was cognizant of the conflict between going forward with this proceeding and the resulting O
adverse effect on the DOJ investigation were GPC to discover the " contents of the investigation."U Board's Order at 26.
The Board suggests that "a protective order and an insulating O
wall" might harmonize these conflicting interests.
Implemen-tation of the Board's suggestion, however, will cause substan-tial prejudice to GPC 1D this case.
Because at least some O
unknown part of the allegations that will be litigated in this case are also being investigated by DOJ, there does not appear I
to be any way for GPC to receive a fair hearing.
The poten-O tial subjects of the investigation, and their respective legal
- counsel, will be kept " ignorant of the contents of the investigation."
GPC would effectively be denied its due O
Process right to a f air *aearing.II Further, the NRC Staff has U
Should this proceeding go forward, GPC expects to fully O
exercise its right to discovery in order to obtain all informa-tion relevant to the admitted contention and its bases.
II The Board's Order, at 25, acknowledges that GPC suffers from being denied access to confidential documents which could permit GPC to rebut the basis for Mr. Mosbaugh's contention.
O Indeed, it is highly likely that portions of tape recordings which have not been made available to GPC contain information helpful to GPC's case. 0
O O
apparently concluded that a stay is appropriate in light of the conflict identified by the Board.U With respect to the first factor of Section 2.788, GPC O
believes it has an excellent chance of succeeding on the merits of its appeal on the following grounds:
1.
The Board erred in finding that Mr. Mosbaugh has standing O
to intervene.
Mosbaugh asserted standing on the basis of one l
week per month visits to property he owned 35 miles from Vogtle, without any showing of a specific increased risk and O
concrete injury.U Such intermittent proximity is not suffi-cient to establish standing under Florida Power and Licht Co.
(St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 0
NRC 325 (1989).
The Board also erred in finding that there j
is an " obvious potential for offsite consequences" which flow from the proposed license amendments.
Because there will be O
virtually no change in the personnel who operate the plant l
after the license amendments are issued, there can be no increased risk causally related to the amendments.
It is 1
O abundantly clear that Mr. Mosbaugh has not identified any O
U other proceedings have been stayed by the Commission pending the completion of a criminal investigations.
See Edward Hines, Jr. Medical Center (Veterans Administration), ALJ-88-1, 27 NRC 475, 477 (1988) and cases cited therein.
UThe Board also ignored the false statements made by Mr.
O Mosbaugh in his pleadings concerning his, and his family's residence and other contacts with Plant Vogtle.
See GPC's Brief in Support of its March 3, 1993 Notice of Appeal, dated March 3, 1993, at 11. O
O O
Proposed change that would affect the safety of Plant Vogtle.
Instead, his allegations challenge current management.
2.
The Board erred in concluding that, if the Board denies O
the Proposed license amendments, Mr. Mosbaugh's alleged harm will be abated because it is the existino operating person-nel who are the subjects of Mr. Mosbaugh's allegations.
In O
this case, as the Board observed in its November 17, 1992 Order, at p. 5, the Board can only stop the license amendments from being issued which will leave the existing personnel in o
control of operation of the plant.1/
Mr. Mosbaugh has not demonstrated that, but for the particular action he challen-ges, the injury of which he complains would abate.
See Public
).
()
Service Company of New Hampshire (Seabrook Station, Unit 1),
CLI-91-14, 34 NRC 261, 267 (1991).
3.
The Board erred in finding that Mr. Mosbaugh's contention O
met the NRC's requirements for contentions, contained in 10 C.F.R. S 2.714 (b) (2) (iii).
The Board held, in effect, that Mr.
Mosbaugh has demonstrated that GPC's application for O
license amendments failed to contain information reouired by law because the application did not include Mr. Mosbaugh's allegations.
Board's Order at 13.
However, nowhere in the O
record is there any basis for concluding that Mr. Mosbaugh Il The Board's Order, at 23, in quoting the NNEC case suggests that GPC might be willing to accept a modification of O
the license amendment as a condition of issuance.
However, GPC could very well choose not to accept such conditions in order to maintain the existing organization in control of Vogtle opera-tions.
-g-O
r O
O alleged that GPC's application was deficient in any way.
On the contrary, it is the current organization of which he complains.
Egg January 12, 1993 prehearing conference O
transcript at 109.
Moreover, the Board erred in admitting a contention outside the scope of the present proceeding.
The allegations do not relate to any chancre proposed by the O
license amendments.
The third factor of 10 C.F.R.
S 2.788 is whether the granting of a stay would harm other parties.
The stay
. O requested by GPC would not harm the NRC Staff.
- Indeed, according to counsel for the NRC Staff, the NRC Staff favors such a stay for its own interests.
The stay requested herein k
also would not harm Mr.
Mosbaugh since it would simply i
preserve the status auo.
The stay would diminish the poten-tial for unwarranted harm and disruption to, and infringement O
of, individual rights of existing personnel who are the subjects of Mr. Mosbaugh's allegations.
The fourth and final factor of Section 2.738 is: where
!O does the public interest lie? During the pendency of the stay l
l requested herein, the Plant Vogtle organization will remain in the current phase of formation of Southern Nuclear.
In O
contrast, if this stay request is denied, cumbersome procedur-es will be required which may prove insufficient to both l
protect the DOJ investigation and ensure GPC a fair hearing O
in this proceeding.
GPC submits that, under the circumstan-l ces, the public interest favors a stay.
1 r O i
7
- o.
O IV.
Conclusion.
For the reasons stated herein, GPC respectfully requests O
that the Board's February 18, 1993 Memorandum and Order admitting a party be stayed pending a decision by the Commis-sion on GPC's appeal of the Board's Order.
O Respectfully submitted,
)/
Y
/.
- ^
A O
y.
c John Lamberski TROUTMAN SANDERS Suite 5200
,O 600 Peachtree Street, N.E.
Atlanta, GA 30308-2216 (404) 885-3360 Ernest L.
- Blake, Jr.,
Esq.
David R.
Lewis, Esq.
9 SHAW, PITTMAN, POTTS &
TROWBRIDGE 2300 N Street, NW Washington, DC 20037 O
(202) 663-8084 Counsel for Gec gia Power Cornpany O
DATED:
March 4, 1993 0 O
O
,.a t ': H U 2tec UNITED STATES OF AMERICA T3 MTR -5 All :42 NUCLEAR REGULATORY COMMISSION 7,
- >u;n n a
~. ta O
In the Matter of O
GEORGIA POWER COMPANY, Docket Nos. 50-424-OLA-3 50-425-OLA-3
_e_t a_1 Re: License Am.ndment (Vogtle Electric (Transfer to Southern Generating Plant, O
Units 1 and 2)
Nuclear)
ASLBP No. 96-671-01-OLA-3 CERTIFICATE OF SERVICE D
This is to certify that copies of the within and fore-going " Georgia Power Company's Application for a Stay of the Licensing Board's February 18, 1993 Memorandum and Order l
O Admitting a Party" were served on all those listed on the j
attached service list by depositing same with an overnight express mail delivery service.
O This is the 4th day of March, 1 3.
G
/.
[bfin' Lamberski O
/
l TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E.
Atlanta, GA 30308-2216 (404) 885-3000 0
l 0
O UNITED STATES OF AMERICA n
NUCLEAR REGULATORY COMMISSION In the Matter of g'
GEORGIA POWER COMPANY, Docket Nos. 50-424-OLA-3 50-425-OLA-3
_e_t a l.
Re: License Amendment (Vogtle Electric (Transfer to Southern Generating Plant, Nuclear)
Units 1 and 2) g)
ASLBP No. 96-671-01-OLA-3 SERVICE LIST I
()
Ivan Selin, Chairman E. Gail de Planque, U.S.
Nuclear Regulatory Commissioner Commission U.S. Nuclear Regulatory One White Flint North Commission 11555 Rockville Pike One White Flint North Rockville, Md.
20852 11555 Rockville Pike y
Rockville, Md.
20852 Kenneth C.
- Rogers, Commissioner Office of Commission Appellate l
U.S.
Nuclear Regulatory Adjudication Commission U.S.
Nuclear Regulatory One White Flint North Commission C) 11555 Rockville Pike One White Flint North Rockville, Md.
20852 11555 Rockville Pike Rockville, Md.
20852 James R.
- Curtiss, Commissioner Administrative Judge U.S.
Nuclear Regulatory Peter B.
Bloch, Chairman O
Commission Atomic Safety and Licensing One White Flint North Board 11555 Rockville Pike U.S.
Nuclear Regulatory Rockville, Md.
20852 Commission Washington, D.C.
20555 Forrest J.
- Remick, g
Commissioner Administrative Judge U.S.
Nuclear Regulatory James H.
Carpenter Commission Atomic Safety and Licensing One White Flint North Board 11555 Rockville Pike U.S. Nuclear Regulatory O
Rockville, Md.
20852 Commission l
Washington, D.C.
20555 O
I J
sg Administrative Judge Thomas D. Murphy Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission
()
Washington, D.C.
20555 Michael D. Kohn, Esq.
Kohn, Kohn & Colapinto, P.C.
517 Florida Avenue, N.W.
Washington, D.C.
20001 O
Stewart D.
Ebneter Regional Administrator USNRC, Region II 101 Marietta Street, NW Suite 2900 vg Atlanta, Georgia 30303 Office of the Secretary U.S.
Nuclear Regulatory Commission Washington, D.
C.
20555 ATTN:
Docketing and Services
()
Branch 1
Charles Barth f Esq.
l Office of General Counsel
.I l
One White Flint North O
Stop 15 Bis U.S.
Nuclear Regulatory Commission f
Washington, D.
C.
20555 O
i O
1 0
i l
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I O
j
______.____________j
NRC board agrees to hear
,,,ma,e, v
, me, age recordings that enabled whistle-blower's petition
=
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leveled against hirn by i
a requeat from Georgia Power Co. tained, we might direct that the li-k stame' to transfer the operating license of-cense amendment be dem,ed or Georgia Power that he was gY Plant Vogtle to Southern Nuclear conditioned on changes in the responsible for the Operating Co. Both are subsidiar-structure and personnel of South-Submission Of false M
WASillNGTON - An adminis-ies of The Southern Co., and the ern Nuclear," it concluded.
b information to the NRC.
trative board has agreed to hear a transfer would be a change main-petition alleging a subsidiary of ly in name only.
The ruling is similar to that of Michael Kohn*
N@
The Southern Co. lacks the " char-a grand jury finding sufficient evi-acter, competence and integrity Mr. Mosbaugh petitioned to in. dence to take a case to trial. No osbaugh.s attorney to operate Plant Vogtle.
tervene in the request for the decision is expected for several change, arguing that because months.
In a Feb.18 ruling, the Nuclear company ofncials lied to the NRC, Georgia Power spokesman Tal m
s.
k Regulatory Commission's Atomic which oversees commercial nucle-Wright said, "We are disappointed Mr. Mosbaugh was fired from Safety and Licensing Board grant. ar plants, the request should be in the board's decision and will Georgia Power after it was N
ed a petition from former Georgia derued.
appeal it. It is important to note learned he was secretly taping Power Co. official Allen Mosbaugh "We find that there is adequate that the board recognizes that Mr. conversations with employees af-to hear his allegations.
basis for Mr. Mosbaugh's conten. Mosbaugh's allegations have not ter the March 1990 incident.
tion that at least one senior officer been proven."
le a e es e mpa of e a f S uthern Nuclear is lacking in The U.S. Justice Department
" Ultimately, it is the tape re-e-
gency equipment -- namely diese3 character and competence and currently is conducting a criminal cordings that enabled Allen that Southern Nuclear lacks the generators - at I lant Vogtle after investigation into some of Mr.
Mosbaugh to protect himself from a March 1990 site area emergency integrity required of a licensee for MosbauEh's allegations' accusations leveled against him m an effort to get permission to the operation of a nuclear power by Georgia Power that he was re-restart a nuclear reactor.
plant," the order said.
IIis attorney, Michael Kohn, sponsible for the submission of said he believes that investigation false information to the NRC,"
l The ruling came in the midst of "If this contention were sus-will be completed within six Mr. Kohn said.
1 m
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i Thursdry Feb. 25,1993
,4 The Atlantajoumal O
The Atlanta ConstrtuDon O
~
F6%rseay, rebruary 25.1993...;
Whistleblower to air
,o Plant Vogtle complaints
~
Associnto ratss day the licensing board's deci-sion to hear the evidence ulti-O Washington - A federal 11-mately could affect the operation censing board has egreed to hear of two other nuclear plantsin the the ~ case of a whistleblower who Southern Co. system, Plant claims he can prove that the Hatch near Baxley and Farley management of Georgia Power Nuclear Plant near Dothan, Ala.
I, Co.'s Plant Vogtle lacks the com-If the board accepts Mr. Mos-O petence and integrity to operate baugh's arguments in this case, a nuclear plant.
Mr. Kohn said, " Georgia Power The decision by the Nuclear and Alabama Power are going to Regulatory Commission's Atom-have to show the NRC they have ic licensing and Safety Board replaced the management of stems frnm allegations by Allen their nuclear facilities with qual-L. Mosbaugh the Georgia Power ified, competent people of high O
managers tied t, e NRC after a integrity before they will be at-1990 accident at tne two-reactor lowed to continue operating their plant near Waynesboro.
plants."
The allegations by Mr. Mos-Georgia Power spokesman baugh, a former senior manager TalWright said the con:pany was I
i at Plant Vogtle who was fired in disappointed in the board's deci-Ig September 1990, also are the sion and will appeal it to the subject of a federal criminal in-NRC.
vestigation, according to NRC "It is important to note that documents.
the board recognizes that Mr.
Michael Kohn, Mr. Mos-Mosbaugh's allegations have not baugh's attorney, said Wednes-been proven," Mr. Wright said.
1 l
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________________________________________a
o c.
Dothan Eagle (Alabama, Feburary 25,1993)
- * * * * - ^
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