ML20056C882

Memorandum & Order Case Mgt.* Orders Scope of Discovery to Be Limited to Bases for Admitted Contention or to Defenses of a Party.W/Certificate of Svc.Served on 930722

ML20056C882
Person / Time
Site:	Vogtle
Issue date:	07/21/1993
From:	Bloch P, Carpenter J, Murphy T Atomic Safety and Licensing Board Panel
To:
References
CON-#393-14139 93-671-01-OLA-3, 93-671-1-OLA-3, LBP-93-15, OLA-3, NUDOCS 9307260078
Download: ML20056C882 (6)

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-t UNITED STATES OF AMERICA .

NUCLEAR REGULATORY COMMISSION l8ENWED JUL 22 $93 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Peter B. Bloch, Chair-Dr. James H. Carpenter Thomas D. Murphy In the matter of Docket Nos. 50-424-OLA-3 50-425-OLA-3 GEORGIA POWER COMPANY, et al. Re: License Amendment (Transfer to Southern (Vogtle Electric Generating Nuclear)

Plant, Units 1 and 2)

ASLBP No. 93-671-01-OLA-3 MEMORANDUM AND ORDER ,

(Case Management)

The purpose of this Memorandum and Order is to address an issue, raised by the parties, concerning the - scope of L discovery. For example, in " Georgia .Pover Company's Response to Intervenor's Second Set of Interrogatories.and Request for Documents," July 15, 1993, (Applicant's y Response) at p. 3, it is stated:

[M]atters not specifically pleaded are outside of the scope of this proceeding. Therefore, GPC's ,

responses to Intervenor's second set of inter-rogatories and requests for: documents are limited  !

to addressing those factual bases pleaded -vith r

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reasonable specificity in the Petition and the 2

Amended Petition . . .

I. Board Determination In this proceeding, we have admitted a contention. In  ;

doing so, we considered the factual bases proffered in sup-port of that contention. Then we admitted the contention,..

in LBP-93-5, February 18, 1993, as follows:

The license to operate the Vogtle Electric Genera-ting Plant, Units 1 and 2, should not be trans-ferred to Southern Nuclear Operating Company, i Inc., because it lacks the requisite character, ,

competence and integrity, as well as the necessary candor, truthfulness and willingness to abide by regulatory requirements. *

-l The factual bases are the ground for admitting a contention, which then governs the scope of the case.2 2

See Id. at p. 3, footnote 2 and "NRC Staff Response to Intervenor's First Set of Interrogatories and Request for ,

Documents to Staff of the U.S. Nuclear -Regulatory l Commission," July 2, 1993, at 2. _

2 Under 10 CFR 62.714, (i) and (11) provide for a brief explanation of the bases of a contention and. require  ;

inclusion in the " bases" of the facts.and opinion.on which- i petitioner- intends to rely. There. is nothing in the I applicable - regulations which- appears to restrict an i intervenor from changing his intention or from discovering new facts that would enlarge the bases-for his contention. 1 Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-  !

185, 7 AEC 740 (1974)(Discovery is permissible unless what i is sought can have no possible bearing on the issues'.);  ;

Pacific Gas and Electric Comoany (Stanislaus ' Nuclear ]

Project, Unit 1), LBP-78-20, 7 NRC- -1038, . 1040 1 (1978)(Discovery directed solely at_the.. amount'of relief in an anti-trust case is permissible.); Metropolitan Edison Comoany (Three Mile Island Nuclear Station, Unit.No. 1),

CLI-'79-8,_ 10 NRC 141, 147-8 (1979)(A Licensing Board may j limit the extent or control the sequence of discovery to _ i prevent undue delay or imposition of an undue burden on any (continued...)

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4 Technically, therefore, it is not correct that only the  !

bases to the contention may be contested.

However, we have decided that it is appropriate to manage the discovery process by dividing it into two phases.

10 CFR 6 2. 718 ( e ) . We believe this phased discovery process  :

is fair and efficient. Under this concept, the Phase I discovery and hearing is restricted to matters related to the bases for the admitted contention.

At the end of the Phase I hearing, three alternative results seem possible: (1) the applicant would refute the i bases of the contention, requiring that the bases and the contention on which they rest should be dismissed, (2) the applicant would fail to refute the bases of the contentions, i

thus establishing the truth of those bases, and relief would be granted without further hearing, or (3) more evidence would be needed for the Board to have an adequate record on which to decide, and a subsequent phase of discovery and hearing would be necessary.

2( . . . continued) party.). See Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-81-25, 14 NRC 241, 243 (1981); Washington Public Power Supply System  !

(WPPSS Nuclear Project No. 2), ALAB-722, 17 NRC 546, 551 n.

5 (1983). Compare Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC 93,.97

& n. 11 (1988)(Note that in this case the. meaning of the contention is perfectly clear without reference to the bases.).  ;

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We continue to urge the parties to resolve discovery disputes through negotiation. In light of this Memorandum ,

and Order, we expect the negotiations to be successful. I II. ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is this 21st day of July, 1993, ORDERED, that: l The scope of discovery shall be limited, at this time, to the bases for the admitted contention or to the defenses of a party. It is not ground for objec-tion that the information sought vill be inadmissible'.

at the hearing if the information sought _ appears-reasonably calculated to lead to the discovery of admissible evidence. See 10 CFR $ 2.740.

The parties shall report to the Board by August 9, 1993, concerning any remaining outstanding discovery questions that are not resolved through negotiation.

THE ATOMIC SAFETY AND LICENSING BOARD MY ames H. Carpdhter

/ Administrative Judge j

Thomas'D. Murphy V Administrative Judge

.1 -

i Peter B. Bloch Chair r

Bethesda, Maryland I

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I UNITED STATES OF AMERICA l

^

NUCLEAR REGULATORY COMMISSION In the Matter of GEORGIA POWER COMPANY, ET AL. Docket No.(s) 50-424/425-OLA-3 (Vogtle Electric Generating Plant, Units 1 and 2)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB M&0.(LBP-93-15) (CASE MGMT) have been served upon the following persons by U.S. mail, first class, except 1 as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

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Office of Commission Appellate Administrative Judge Adjudication Peter B. Bloch, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 {

Administrative Judge Administrative Judge James H. Carpenter Thomas D. Murphy Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 John Lamberski, Esq.

Office of the General Counsel Counsel for Georgia Power Company U.S. Nuclear Regulatory Commission Troutman Sanders Washington, DC 20555 Suite 5200, 600 Peachtree Street, N.E.

Atlanta, GA 30308 Ernest L. Blake, Jr., Esq. Michael D. Kohn, Esq.

David R. Lewis, Esq. Stephen M. Kohn, Esq.

Shaw, Pittman, Potts & Trowbridge Kohn, Kohn & Colapinto, P. C.

2300 N Street, N.W. 517-Florida Avenue, N.W.

Washington, DC 20037 Washington, DC 20001

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Docket No.(s)50-424/425-OLA '

-LB M&O (LBP-93-15) (CASE MGMT)

C. K. McCoy V. President Nuclear, Vogtle Project Georgia Power Company Post Office Box 1295 <

Birmingham, AL 35201 Dated at Rockville, Md. this 22 day of July 1993

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