ML20035F573
| ML20035F573 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 04/13/1993 |
| From: | Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#293-13877 OLA-3, NUDOCS 9304220044 | |
| Download: ML20035F573 (10) | |
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j Ap2il 13,1993 Dat '
UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION 93 gty 14 Ap. 4 o~
l BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l
M.
In the Matter of
)
Docket Nos. 50-424-OL' -3i.n
)
50-425-OLA-3 GEORGIA POWER COMPANY
)
et al.
)
Re: License Amendment
)
(Transfer to Southern Nuclear)
(Vogtle Electric Generating Plant,
)
i Units 1 and 2)
)
NRC STAFF RESPONSE TO THE LICENSING BOARD QUESTIONS REGARDING SCHEDULING AND DISCOVERY INTRODUCTION l
The Licensing Board's " Memorandum and Order (Questions for Scheduling Conference)," dated April 8,1993, propounded the following questions to the parties:
1.
What discovery, if any, can occur without unreasonably interfering with the continuing NRC investigation?
2.
What advantage, if any, is there to commencing discovery now?
3.
What would the parties suggest that the Board do to obtain a realistic schedule from the Office of Investigation or otherwise to expedite this case?
4.
What discovery schedule do the parties propose, separately or mutually?
)
' The Board has been informed that the United States Justice Department has discontinued its investigation of Georgia Power, so the only investigation is by the Office of Investigations (OI) of the NRC.
l The Licensing Board particularly asked for a clarification of the position of the l
NRC Office of Investigations and the NRC Staff, and for an explanation of an application 9304220044 930413 gm amu==g4 y
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of " Statement of Policy; Investigations, Inspections, and Adjudicatory Proceedings" l
l (49 Fed. Reg. 36,032), to this proceeding.
1 BACKGROUND This proceeding involves a license amendment application of September 18,1992, l
which seeks permission to transfer control of authority to operate the Vogtle Electric Generating Plant Units from the Georgia Power Co. to the Southern Nuclear Operating Co., which are both wholly owned subsidiaries of the Southern Company. See LBP 5, 37 NRC (February 18, 1993, slip op. at 3-4).
As here material, Allen L. Mosbaugh sought to intervene as a party in this proceeding, and submitted four contentions maintaining that the proposed license amendment should not issue because certain conduct showed, in essence, the proposed transferee did not have the character to possess a license. Id. at 5. In response to this amended petition, the Staff asked the Licensing Board to defer consideration of these matters until investigations into the l
allegations of misconduct were completed. Id. at 24-25.
The Licensing Board in LBP-93-5, found Mr. Mosbaugh had standing to intervene l
in this proceeding, and admitted one consolidated contention reading:
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 l
well as the necessary candor, truthfulness and willingness to abide by regulatory requirements.
I The Licensing Board in the course ofits opinion rejected contention 4 and certain l
l language in the other contentions, but did not explicitly state which of the bases of I
I Mr. Mosbaugh's contentions were admitted for litigation. Id. at 9-14. The Licensing Board further provided that the Staff should file a brief by March 8,1993 " showing cause why discovery of prosecution-related documents should not commence immediately." Id.
at 28. The Staff filed that brief.8 The Licensee appealed the grant of party status to Mr. Mosbaugh, and also sought a stay of the decision, principally on the ground that going forward with the proceeding while Licensee's appeal was pending would undermine its Fifth Amendments rights under the Constitution and might prejudice it in criminal proceedings that might result from the on-going investigations. CILI-93-6 at 2. The NRC Staff, while opposing the appeal, supported the stay on the ground that going forward with tha proceeding could adversely affect on-going investigations. Id. at 3. The Commission thereupon referred the stay request to the Licensing Board as similar questions were before that Board. Id.
On March 30,1993, the Department of Justice advised Georgia Power Co. that it had closed its investigation of Georgia Power Co. at this time, and recommended that 2
the NRC's Office ofInvestigation pursue this matter administrative 1y which OIis doing.
2 "NRC Staff's Response to Licensing Board Memorandum and Order (Admitting Party)," dated March 8,1993.
2 See Intervenor's " Additional Information Relevant To Discovery Matters," dated April 1,1993, attaching letter from U.S. Attorney Joe D. Whitley to Bryan Lavine, dated March 30,1993.
DISCUSSION 1.
The Extent Of Discovery Which May Proceed Without Unreasonably Interfering With NRC's Continuing Investigation The Department of Justice has closed its investigation of the Georgia Power Co.
at this time.
The NRC's Office of Investigations (OI) is only investigating
)
representations of Georgia Power Co. regarding diesel gencrators. See LBP-93-5, at 14-
- 15. This investigation does not involve matter: the Licensing Board referred to as the "nonalienation requirement," contained in 10 C.F.R. f 50.80(a). See id. at 10. That 1
matter is not under investigation by OI.
Thus, the Staff has no objection to discovery going forward on "nonalienation" matters, in contrast to diesel generator matters.
However, in view of the on-going investigation by OI, any discovery against the Staff should be conducted under 10 C.F.R. 66 2.720(h) and 2.744, so that matters which are discoverable and matters which are not discoverable may be properly considered and separated. In th:s proceeding, carefully following the rules so as to see what matters are presently available and what matters might be privileged under 10 C.F.R. f 2.790(a) will lead to a saving of time in the long run. An investigation is still proceeding on the diesel generator matter and it is more efficient for the Staff to properly determine which Staff documents and information should be released in the context of the Rules of Practice governing discovery.
The Staff has no objection to any discovery going forward of other parties to this proceeding.
2.
Advantages To Commencing Discovery The Staff believes, consistent with limitations set out above, there is an advantage to commencing discovery now. Commission policy encourages the prompt disposition of matters consistent with the rights of the parties. Statement Policy On Conduct of Licensing Proceedings, CLI-81-8,13 NRC 452,454 (1981).
Commencing discovery now is particularly important because of the present difficulty in determining the basis of the broadly-worded admitted contention, and what f
evidence other parties have pertinent to the contention. The Staff also is willing to supply all praperly requested information or documents in accordance with 10 C.F.R.
l f f 2.720(h), 2.744 and 2.790. It thus appears that the bulk of discovery can now go forward.
3.
The Office of Investigations Is Working On Its Investigation And Expects To Complete it Within The Next Several Months OI is pursuing its investigation on the diesel generator matter, and is seeking to i
complete it as quickly as possible. However, the date of completion of the investigation cannot be predicted, as it is unknown where matters uncovered in the investigation will lead.
4.
Discoverv Should Commence Now i
The Staff believes discovery should commence now and be conducted consistent with the times se: out for discovery in Commission's Rules of Practice,10 C.F.R.
5 2.740, with the exception of matters under investigation.
As to those matters, i
discovery might be reopened on the completion of the OI investigation, if appropriate.
, ~,,
l Again, discovery against the Staff, in this proceeding, should be conducted in conformity with 10 C.F.R. f f 2.720(h) and 2.744.
I 5.
The Commission's " Statement of Policy; Investigations, Inspections and Adjudicatory Proceedings" (49 Fed. Reg. 36,032) Is Applicable To This Proceeding As the Staff has briefed before,' although the cited Policy Statement is particularly applicable to Board notification procedures, it indicates that investigatory material should not be prematurely released so as to compromise investigations and inspections. Careful guidelines are provided in that policy statement for the consideration of such material in camera and, in certain instances, on a crparte basis. 49 Fed. Reg.
36034. The Commission further 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 l
investigations and inspections through the deferral or rescheduling ofissues for hearing."
49 Fed. Reg. 36033.
Similarly, in the recent Statement of Consideration regarding the " Revision To Procedures To Issue Orders:
Challenges To Orders That Are hiade Immediately Effective," 57 Fed. Reg. 20194,20197 (May 12,1992), the Commission stated that, "A l
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 5 See "NRC Staff's Response to Licensing Board Memorandum and Order (Admitting Party)," dated March 8,1993; "NRC Staff Support of Georgia Power Company's Application For A Stay of LBP-93-5," dated March 16, 1993.
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could suspend or revoke a license, an action initiated to assure the continued protection l
o." the public health and sr.fety, but an application to transfer a license from one subsidiary of a public utility holding company to another subsidiary, and action proposed to facilitate the licensee's operation. A delay of this proceeding because of an inability i
to immediately complete discovery 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 i
in a meaningful manner for a hearing appropriate to the nature of the case... What is i
meaningful depends on appropriate accommodation of the competing interests involved."
Id.
l i
i In this proceeding, matters are still under investigation and these policy statements l
are pertinent to the conduct of this proceeding. If matters cannot be resolved by agreement between the parties after specific requests for Staff documents or information i
under 10 C.F.R. 56 2.720(h) and 2.744, the Staff would not object to the Board's i
reviewing any documents or information withheld, in camera (as provided in the Policy f
I Statement,49 Fed. Reg. 36033,36034), to ascertain whether, under the provisions of l
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i 10 C.F.R. f f 2.720(h), 2.744 and 2.790, the Staff's determination that selected i
informat'on or documents should not be released is proper.
Respectfully submitted, i
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Diwin J. R< :
Deputy ssistant General Counsel for eactor Licensing Dated at Rockville, Maryland this 13th day of April 1993 f
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$!In'd" UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 93 Am ja Ag :34 i
BEFORE THE ATOMIC SAhrY AND LICENSING BOARD;,
ci j,
of 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)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO THE LICENSING BOARD QUESTIONS REGARDING SCHEDULING AND DISCOVERY"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 13th day of April 1993.
Peter B. Bloch, Chairman
- Thomas D. Murphy
- Administrative Judge Administrative Judge 1
Atomic Safety and Licensing Board Atomic Safety and Licensing Board l
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 j
(301) 492-7285 (301) 492-7285 James H. Carpenter
- John 12mberski, Esq.
Administrative Judge Arthur H. Domby, Esq.
Atomic Safety and Licensing Board Trautman Sanders Mail Stop: EW-439 Nationsbank Building, Suite 5200 1
U.S. Nuclear Regulatory Commission 600 Peachtree Street, N. E.
Washington, D. C. 20555 Atlanta, Georgia 30308 (301) 492-7285 (404) 885-3949 t
l
David R. Lewis, Esq.
Adjudicatory File * (2)
Shaw, Pittman, Potts and Trowbridge Atomic Safety and Licensic; Board 2300 N Street, N. W.
Panel Washington, D. C. 20037 Mail Stop: EW-439 (202) 663-8007 U.S. Nuclear Regulatory Commission i
l Washington, D. C. 20555 Michael D. Kohn, Esq.
Stephen M. Kohn, Esq.
Atomic Safety and Licensing Board Kohn, Kohn and Calapinto, P.C.
Panel
- 517 Florida Avenue, N. W.
Mail Stop: EW-439 Washington, D. C. 20001 U.S. Nuclear Regulatory Commission (202) 462-4145 Washington, D. C. 20555 Office of Commission Appellate Office of the Secretary * (2)
Adjudication
- Attn: Docketing and Service Mail Stop: OWFN-16/G15 Mail Stop: OWFN-16/G15 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 r
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Edwin J. Reis' Deputy Assistant General Counsel for Reactor Licensing 9
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