ML20034H824
| ML20034H824 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 03/16/1993 |
| From: | Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#193-13737 LBP-93-05, LBP-93-5, OLA-3, NUDOCS 9303220116 | |
| Download: ML20034H824 (12) | |
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UNITED STATES OF AMERICA 93 t'r 15 Pi:18 NUCLEAR REGULATORY COMMISSION HEFORE THE COMMISSION In the Matter of
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Docket Nos. 50-424.-OLA-3 GEORGIA POWER COMPANY
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50-425-OLA-3 et al.
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Re:
License Amendment (Vogtle Electric Generating Plant
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(Transfer to Southern Nuclear)
Units 1 and 2)
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NRC STAFF SUPPORT OF GEORGIA POWER COMPANY'S APPLICATION FOR A STAY OF LBP-93-5 6
Edwin J. Reis Deputy Assistant GeneralCounsel for Reactor Licensing -
l March 16,1993 9303220116 930316 PDR ADOCK 05000424 g
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION n
in the Matter of
)
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Docket Nos. 50-424-OLA-3.
GEORGIA POWER COMPANY, et al.
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50-425-OLA-3
)
(Vogtle Electric Generating Plant
)
Re: License Amendment 6
Units 1 and 2)
)
(Transfer to Southern Nuclear) -
)
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NRC STAFF SUPPORT OF GEORGIA POWER COMPANY'S APPLICATION FOR A STAY OF LBP-93.
l INTRODUCTION
-t Georgia Power Company (Licensee) has moved the Commission;to stay the.
t effectiveness of-LBP-93-5, ' 37 NRC -
(February 18, 1993), _which. admitted Mr. Mosbaugh as a party to the proceeding, admitted a contention. consolidated by: the.
Licensing Board, and authorized discovery.' The Staff supports 'the Licensee's ' Application for reasons set forth below, q
. BACKGROUND On October 22,1992, Allen L. Mosbaugh and Marvin B. Hobby filed a Petition c l
to Intervene and Request for Hearing;(Petition);in' connection. with' Georgia. Power.
Company's (Licensee) September 18, 1992, request for an order and license amendment Georgia Power Company's Application for a Stay of the Licensing Board's-l 2
February 18,1993 Memorandum and Order Admitting a Party, dated March 4,'1993 (Stay--
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-' Application),
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I which would transfer operating control of the Vogtle facility to Southern Nuclear Operating Company, Inc. (Southem Nuclear).
In a Memorandum and Order (Prehearing Conference; Filing Schedule),
LBP-92-32, 36 NRC (November 17,1992), at 3-4, the Licensing Board denied standing to Marvin B. Hobb.
The Board withheld a decision on the standing of.
f Mr. Mosbaugh to intervene and gave him the opportunity to amend his petition to cure pleading deficiencies noted and to set forth contentions in accordance with Commission regulations. Id. at 6-7.
In its response to the amended petition, the Staff moved the Licensing Board to defer consideration of the matter until reviews of allegations concerning misconduct were completed.2 After convening a January 12,1993 prehearing conference to consider the petition and an evidentiary hearing regarding Mr. Mosbaugh's contacts with the vicinity of the Vogtle facility as they related to standing, the Licensing Board issued LBP-93-5 (Memorandum and Order (Admitting A Party)).' On March 4,1993, the Licensee filed an appeal from LBP-93-5' and the subject motion for a stay.
2 NRC Staff-Response To Allen L. Mosbaugh's Amendments To Petition To Intervene And Request For Hearing And Contingent Motion To Defer The Staff's Reply To Contentions And Rulings On Contentions, dated December 20,1992 (Staff Amendment Response), at 6.
l 3 In LBP-93-5, the Board also posed questions to the Staff regarding its request to defer discovery. The Staff responded on March 8,1993. NRC Staff's Response To '
Licensing Board Memorandum And Order (Admitting Party), March 8,1993. (Response l
to Board).
- Georgia Power Company's Notice of Appeal of the Licensing Board's February 18, 1993 Memorandum and Order Admitting a Partyt dated March 4,1993; Georgia Power Company's Briefin Support ofIts March 4,1993 :lotice of Appeal, dated March 4,1993.
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3 DISCUSSION I.
Soecial Circumstances Warrant Deferral of the Proceeding Unless there are special circumstances, a stay request is governed by the four general legal criteria set out in 10 C.F.R. I 2.788(e). See Paci/ic Gas & Electric Co.
(Diablo Canyon Power Plant, Units 1 and 2), CLI-86-12,24 NRC 1,4-5 (1986) (exercise ofinherent discretionary supervisory authority). Those factors are: (1) whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) whether the party will be irreparably injured unless a stay is granted; (3) whether the gmnting of a stay would harm other parties; and (4) where the public interest lies.. The movant has the -
burden to establish that a stay should be granted. Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units I and 2), CLI-81-27,14 NRC 795, 797 (1981).
Special circumstances are present in this proceeding. The ongoing investigations warrant holding this proceeding in abeyance until it has been determined whether'the submission of allegedly false information to the NRC involved wrongdoing.8 The-1 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; 5 The Staff previously asked the Licensing Board to defer the proceeding until the -
Department of Justice (DOJ) had concluded its investigation of matters referred by the NRC Office of Investigations and counsel for the petitioner did not oppose the. Staff's motion.
Prehearing Conference Transcript, dated January 12,1993 (Tr.101). In its March 8,1993 ~
filing, the Staff further explained its reasons for seeking a deferral of the proceeding and
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included an affidavit by the Director of the NRC Office of Investigations and a letter from DOJ. See Response to Board, supra,
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[ Investigations, inspections, and Adjudicatory Proceedings," 49 Fed. Reg. 36,032, 36,033 (1984), the Commission, in dealing with " Board noufications," indicated that investigatory material was not to be prematurely released so as to compromise investigations and inspections. Careful guidelines were provided for the consideration of such material in camera and, in certain instances, on a er pane basis, and the 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 for the timely consideration of relevant matters derived from investigations and inspections through the deferral or rescheduling of issues for hearing."
Consistent with the foregoing principle, the " Memorandum of Understanding Between the Nuclear Regulatory Commission and the Department of Justice," 53 Fed.
Reg. 50,317, 50,318 (December 14, 1988), indicates that the NRC will consider and accommodate the views of the Department of Justice, "to the fullest extent possible, r
consistent with regulatory action required," including seeking a stay of discovery and hearings rights upon the request of the Department of Justice where criminal proceedings are being contemplated.
And, most recently, in the Statement of Consideration on the " Revision To Procedures To Issue Orders:
Challenges To Orders That Are Made Immediately t'
Effective," 57 Fed. Reg. 20,194, 20,197 (May 12,1992), the Commission stated that, "A I
prime example [of a need to delay a proceeding] would be the temporary need to halt the
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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 nature of the case.
... What is meaningful depends on appropriate accommodation of the competing interests involved." Id.'
In view of the foregoing policies, special circumstances - namely, the public-interest - warrant deferral of this proceeding pending the outcome of the possible criminal and enforcement proceedings.
II.
The Commission's Criteria For A Stay A.
Irrecarable Harm Absent A Stay 1
Of the four factors governing the granting of a stay request, the movant's need to show irreparable harm is the most crucial one. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-90-3,31 NRC 219,258 (1990). If no irreparable harm is established, "a strong showing would need to be made on the remaining stay factors in order for any stay to be granted." Id. at 260.
Delays as long as 18 months in civil proceedings pending the conclusion of criminal investigations have been determined not to be violative of due process. See United States v. Eight Hundred Fifty Dollars ($850), 461 U.S. 555,568-69 (1983); United States i
- v. Treasury Bills Totalling $160,916,25,750 F.2d 900,902 (1lth Cir.1985).
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The movant asserts that it would be seriously harmed or prejudiced by the simultaneous occurrence of the discovery in this proceeding and the criminal investigation, since the issues to be considered are the same. Stay Application at 3-7. While the Staff does not have sufficient information to address this factor, it believes that the other factors, namely the lack of harm to other parties and the public interest, on balance, support the grant of a stay.
B.
Likelihood of Success on the Merits Licensee argues that the Board incorrectly concluded that denial of the proposed amendments would abate the alleged harm and that the contention admitted satisfied the requirements of 10 C.F.R. i 2.174(b)(2)(iii). Stay Application at 7-8.
The movant has not shown that it will ultimately prevail on the merits. Although the Staff argued below that denial of the amendment would not affect the character of individuals operating the Vogtle facilities, the Staff agrees with the Board's conclusion that it could fashion a remedy in this amendment proceeding that would redress, to some extent, or abate any claimed injury stemming from activities of Southern Nuclear. As the Board noted, in addition to denying the proposed transfer, it could condition the amendment "on changes in the structure and personnel of Southern Nuclear." LBP-93-5 at 15. While such action might not fully redress potential harm since Southern Nuclear and Georgia Power largely have the same officers, an order prohibiting or limiting the activities of certain
7 Southern Nuclear employees at Vogtle would prevent potential harm associated with operation under the proposed transfer. Thus, this factor weighs against the grant of a stay.
C.
Harm to Other Parties
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Licensee argues that the requested stay, if granted, would not result in cognizable harm to the other parties. Stay Application at 9.
Neither the Staff, the Licensee, nor Mr. Mosbaugh would be injured if a stay of the proceeding is granted. Mr. Mosbaugh's petition seeks to defeat the proposed transfer.
1 A delay of the proceeding to allow the completion of ongoing investigations would postpone any NRC action on the proposed amendment until the Staff can consider the results of the investigations. Indeed, it would appear that all parties agree that the proceeding should be deferred. Thus, this factor favors the grant of a stay.
D.
The Public Interest The public interest, as reflected by the Memorandum of Understanding with the Department of Justice and the Commission policy statements, indicate that this proceeding should be deferred or stayed pending the completion of ongoing investigations. See Part I, supra. The requested transfer of operation involves the character of the prospective transferee, Southern Nuclear. The stated basis for the admitted contention is the alleged.
falsification of information by Georgia Power and Southern Nuclear.' While the pendency of an investigation is not evidence of whether the transferee is unqualified or guilty of wrongdoing, or that a significant safety issue has been raised, see Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 4-6 (1986),.
completion of the investigations could provide important information about the " character"
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of the proposed transferee. Delay of the proceeding, however, would result in a more efficient use of agency resources and enable the Staff to take a position on the qualifications of the transferee under 10 C.F.R. i 50.80.'
J Given that the basis for the admitted contention revolves around matters that are being investigated, there is no basis to go forward.with the administrative proceeding,:
including discovery, during the pendency of such ongoing investigations. Further, deferral '
of the proceeding until the investigations are complete would avoid any possible interference q
with ongoing investigations and thus provide greater protection _of the public health and.
i safety. Thus, this factor strongly favors the grant of a stay.
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7 Under 10 C.F.R. i 50.80, a transfer application must contain such information
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regarding the technical and financial qualifications of the proposed transferee as would be 4
required if the application were for an initial license. In accordance with this provision and
. Section 182 if the Atomic Energy Act, as amended,42 U.S.C. I 2231, the Commission Fas considered the character of licensees and applicants in its adjudicatory proceedings. See NRC Staff Response To Licensing Board Questions, February 5,1993, at 4-6.
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CONCLUSION As stated above, there are special circumstances in this proceeding that warrant t
deferral of the matter until ongoing investigations are completed. In addition, in view of public interest considerations, a balancing of the four factors in 10 C.F.R. { 2.78S(e) favors granting the stay requested. Accordingly, the Commission should grant the Licensee's request.
Respectfully submitted, 4
.4 Edwin J eis Deputy Assistant General Counsel for Reactor Licensing Dated at Rockville, Maryland the 16th day of March 1993 t'
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- nc UNITED STATES OF AMERICA
'93 t;M 16 P6:18 NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
' 7e m
a' In the Matter of
)
)
Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY, et al.
)
50-425-OLA-3
)
(Vogtle Electric Generating Plant
)
Re: License Amendment Units 1 and 2)
)
(Transfer to Southern Nuclear)
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CERTIFICATE OF SERVICE I hereby cenify that copies of "NRC STAFF SUPPORT OF GEORGIA POWER COMPANY'S APPLICATION FOR A STAY OF LDP-93-5" in the above-captioned -
proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit 'in the Nuclear Regulatory Commission's internal mail system this 16th day of March 1993.
Peter B. Bloch, Chairman
- Thomas D. Murphy
- Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop: EW-439 Mail Stop: EW-439 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 (301) 492-7285 (301) 492-7285 James H. Carpenter
- John Lamberski, Esq.
Administrative Judge Arthur H. Domby, Esq.
Atomic Safety and Licensing Board Trautman Sanders Mail Stop: EW-439 Nationsbank Building, Suite 5200 -
U.S. Nuclear Regulatory Commission 600 Peachtree Street, N. E.
Washington, D. C. 20555 Atlanta, Georgia 30308 (301) 492-7285 (404) 885-3949 5
L;*
David R. Iewis, Esq.
_ Adjudicatory File * (2)
- Shaw, Pittman, Potts'and Trowbridge Atomic Safety and Licensing Board -
ic 2300 N Street, N. W..
Panel; Washington, D.C. 20037
. Mail Stop: EW-439:
-(202) 663-8007-U.S. Nuclear Regulatory Commission Washington,'D. C. 20555; Stephen M. Kohn, Esq.
Atomic Safety and Licensing Board :_
Kohn, Kohn and Calapinto, P.C.
Panel
- 517 Florida Avenue, N. W.
Mail Stop: EW-4391 p:
Washington, D. C. 20001 U.S. Nuclear Regulatory Commission '
(202) 462-4145 Washington,' D. C. 20555 Office of Commission Appellate Office of the SecretaryP (16)
Adjudication' -
Attn: Docketing and Service" Mail Stop: OWFN-16/G15
. Mail Stop:. OWFN-16/G15-U.S. Nuclear Regulatory Commission U.S; Nuclear Regulatory Commissiori-Washington, D. C. 20555 Washington, D. C. 20555 Edwin J.
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Depu Assistant General Counsel
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