ML20056C178

Georgia Power Co Response to NRC 930308 Brief.* Licensee Requests That Board Postpone Discovery & Establishment of Schedules Pending Ruling by Commission on 930304 Stay Request.W/Certificate of Svc

ML20056C178
Person / Time
Site:	Vogtle
Issue date:	03/18/1993
From:	Lamberski J GEORGIA POWER CO., TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA
To:	Atomic Safety and Licensing Board Panel
References
CON-#193-13751 96-671-01-OLA-3, 96-671-1-OLA-3, OLA-3, NUDOCS 9303300195
Download: ML20056C178 (10)

Text

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W UNITED STATES OF AMERICA '93 M.C 19 Pi2 :21 l NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of -!

l 4 t GEORGIA POWER COMPANY,

• Docket Nos. 50-424-OLA-3 l gt _a_1.

• 50-425-OLA-3 l

• i (Vogtle Electric

• Re: License Amendment f Generating Plant, * (Transfer to Southern i Units 1 and 2)

• Nuclear) {

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• ASLBP No. 96-671-01-OLA-3  :

f GEORGIA POWER COMPANY'S I RESPONSE TO  !

THE NRC STAFF'S MARCH 8, 1993 BRIEF

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i John Lamberski l Counsel for f

Georgia Power Company j

i March 18, 1993 i

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of GEORGIA POWER COMPANY,

• Docket Nos. 50-424-OLA-3 et al.

• 50-425-OLA-3 (Vogtle Electric

• Re: License Amendment Generating Plant, *

(Transfer to Southern Units 1 and 2)

• Nuclear)

• ASLBP No. 96-671-01-OLA-3 GEORGIA POWER COMPANY'S RESPONSE TO THE NGC STAFF'S MARCH 8, 1993 BRIEF I. Introduction.

In accordance with the February 18, 1993 Order of the ,

Atomic Safety and Licensing Board (the " Board"), Georgia Power Company ("GPC") hereby responds to the "NRC Staff's Response to Licensing Board Memorandum and Order (Admitting a Party) " dated March 8, 1993 (" Staff's Brief"). GPC i submits that no discovery should be conducted during the  :

pendency of the on-going Department of Justice ("DOJ")

investigation. l i

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II. Backaround.

By memorandum and order dated February 18, 1993 (the

" Board's Order"), the Board directed, among other things, that the NRC Staff, by March 8, 1993, " file a brief showing cause why discovery of prosecution-related documents should not commence immediately." Board's Order at 28. Mr.

Mosbaugh and GPC were required to file their responses to the Staff's brief by March 18, 1993. Id. at 29.

On March 8, 1993, the NRC Staff filed its brief in response to the Board's Order. Therein, the NRC Staff states that discovery acainst the . Staff is not appropriate at this time but that it has no objection to "other discovery" going forward. The NRC Staff states that

"[d]iscovery of the Staff investigative or inspection material may be appropriate after the investigation is -

finished in about four to six months...." Staff's Brief at 1-2.

The NRC Staff's position is based on its assertion that the contention admitted by the Board in this proceeding and the current enforcement and DOJ investigation involve the issue of whether named officers of GPC made material false statements to the NRC. Disclosure of such materials, the Staff asserts, could jeopardize such enforcement activities and DOJ investigation. Staff's Brief at 3. This assertion

F is supported by an affidavit of Mr. Ben B. Hayes, Director of NRC's Office of Investigations.1/

III. GPC's Position.

The Staff's Brief points out one of the' difficulties of proceeding with discovery while investigations and enforcement actions are pending. From the Staff's perspective, discovery of its documents is inappropriate because it might interfere with these activitics. GPC submits that there are other considerations related to the DOJ investigation that make discovery against GPC and its employees equally inappropriate at this time.

GPC has already requested that the Board suspend the discovery and scheduling provisions of its February 18 Order pending a ruling by the Commission on GPC's March 4, 1993 Application for a Stay of the Licensing Board's-February 18, 1993 Memorandum and Order Admitting a Party (the " Stay [

r Request"). Irrespective of the Stay Request, GPC submits that the Board should defer discovery pending-the completion of the on-going DOJ investigation in order to avoid inadvertent interference with the investigation or prejudice {

1/ The Staff's Brief, at p. 3, goes on to say that "[t]he same purportedly false statements by the same officers of the licensee are involved in both instances, and the evidence that I might be relevant to these matters is the same." This assertion is not supported by the citations to Mr. Hayes' Affidavit.

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i to GPC's rights and the rights of individuals who may be  ;

involved.

If, prior to completion of the DOJ investigation, the l l

Board were to decide that discovery should proceed with respect to DOJ-related matters, a very awkward and  ;

prejudicial situation would result. GPC employees would be subject to discovery on precisely the same issues that are i being investigated by the DOJ. Such a situation has the i potential for undermining the Constitutional 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, or  ;

4 otherwise prejudicing the case. Stay Request at 3-6. '

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Furthermore, GPC would effectively be denied its due j

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process right to a fair hearing if, as the NRC Staff  ;

suggests, "other discovery" were permitted to commence while 1 discovery of relevant NRC Staff inspection / investigation materials is prohibited. Stay Request at 6. More specifically, should this proceeding go forward, GPC intends to fully exercise its right to discovery of all information j relevant to the admitted contention and its bases. The  !

Board acknowledged that GPC suffers from being denied access {

to confidential documents which could permit GPC to rebut {

j the basis for Mr. Mosbaugh's contention. Board's Order at  !

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25. Indeed, it is highly likely, based on GPC's current knowledge, that portions of tape recordings which have not f

been made available to GPC, as well as interviews of Mr.

f Mosbaugh and others, contain information helpful to GPC's .;

i case.Il "Other discovery," then, is inextricably l intertwined with the discovery which the NRC Staff seeks to halt.

• The Board's Order recognized the conflict between protecting confidential investigative materials and i proceeding promptly and efficiently with this case. It concluded that these conflicting interests could be  !

harmonized "if the parties could reach an agreement on how  :

the relevant information can be shared pursuant to a protective order that contains a carefully constructed i provision that would keep all potential defendants, and all potential counsel for those defendants, ignorant of the  :

I contents of the investigation " Board's Order at 26. While GPC appreciates the Board's interest in attempting to move ,

the proceeding ahead expeditiously, implementation of the 1/ On information and belief, Mr. Mosbaugh has been interviewed by the NRC Staff on several occasions relative to allegations he has raised, including those contained in his l; pleadings in this case, and such information would be relevant to the merits of the Board-admitted contention as well as Mr.

Mosbaugh's credibility.

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l Board's suggestion will cause substantial prejudice-to GPC j 1

in this case. Stay Request at 6. l i

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IV. Conclusion. l For the reasons stated herein, GPC requests that the ,

1 Board postpone discovery and establishment of schedules l pending a ruling by the Commission on GPC's March 4, 1993 {

Stay Request, or, if the Stay. Request is denied, completion i of the DOJ investigation. {

In the event that the Board decides discovery should  ;

i proceed, GPC requests that the Board hold a conference with l the parties to discuss discovery and schedule in order to  !

decrease the likelihood of disputes between the parties  ;

during discovery.

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i Respectfully submitted,

- v i, John Lamberski ,

TROUTMAN SANDERS Suite 5200 i 600 Peachtree Street, N.E.

Atlanta, GA 30308-2216 (404) 885-3360 ,

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Ernest L. Blake, Jr., Esq.

David R. Lewis, Esq.

SHAW, PITTMAN, POTTS &  !

TROWBRIDGE 2300 N Street, NW Washington, DC 20037 (202) 663-8084 Counsel for Georgia Power Company ,

DATED: March 18, 1993 f P

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UNITED STATES OF AMERICA '93 MT? 19 Pi2 21 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of GEORGIA POWER COMPANY,

• Docket Nos. 50-424-OLA-3 '

et al.

• 50-425-OLA-3 Re: License Amendment (Vogtle Electric

• Generating Plant, * (Transfer to Southern i Units 1 and 2)

• Nuclear)

• ASLBP No. 96-671-01-OLA-3 t l

CERTIFICATE OF SERVICE This is to certify that copies of the within and fore-going " Georgia Power Company's Response to the NRC Staff's ,

March 8, 1993 Brief" were served on all those listed on the attached service list by depositing same with an overnight express mail delivery service.

This is the 18th day of March, 199 .

.w , x o n Lamberiki '

i ROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E. <

Atlanta, GA 30308-2216  :

(404) 885-3000 ,

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r T UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of GEORGIA POWER COMPANY,

• Docket Nos. 50-424-OLA-3

• 50-425-OLA-3 et al.

(Vegtle Electric

• Re: License Amendment Generating Plant, *

(Transfer to Southern Units 1 and 2)

• Nuclear)

• ASLBP No. 96-671-01-OLA-3 SERVICE LIST Administrative Judge Stewart D. Ebneter Peter B. Block, Chairman Regional Administrator Atomic Safety and Licensing USNRC, Region II Board 101 Marietta Street, NW U.S. Nuclear Regulatory Suite 2900 Commission Atlanta, Georgia 30303 Washington, D.C. 20555 Office of the Secretary Administrative Judge U.S. Nuclear Regulatory

. James H. Carpenter Commission Atomic Safety and Licensing Washington, D.;C. 20555 Board ATTN: Docketing and U.S. Nuclear Regulatory Services Branch Commission Washington, D.C. 20555 Charles Barth, Esq.

Office of General Counsel ')

Administrative Judge One White Flint North .{

Thomas D. Murphy Stop 15B18 l Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission l U.S. Nuclear Regulatory Washington, D. C. 20555 Commission p Washington, D.C. 20555 Director, [

Environmental Protection t Michael D. Kohn, Esq. Division  ;

Kohn, Kohn & Colapinto, P.C. Department of Natural .i 517 Florida Avenue, N.W. Resources .

Washington, D.C. 20001 205 Butler Street, S.E. j Suite 1252  ;

Office of Commission Appellate Atlanta, Georgia 30334 l Adjudication j One White Flint North i 11555 Rockville Pike i Rockville, MD 20852 {

ATTENTION: Docketing and l Service Branch j i

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