ML20056E682

Memorandum & Order (Clarification of Scope of Discovery).* Scope of Discovery in Phase I Shall Be Limited to Scope of Admitted Contention But Shall Extend to All Bases Advanced by AL Mosbaugh.W/Certificate of Svc.Served on 930813

ML20056E682
Person / Time
Site:	Vogtle
Issue date:	08/12/1993
From:	Bloch P, Carpenter J, Murphy T Atomic Safety and Licensing Board Panel
To:	AFFILIATION NOT ASSIGNED
References
CON-#393-14209 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9308250054
Download: ML20056E682 (6)

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August 12, 1993 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD I

l Before Administrative Judges: g:-~cy 7": q , - I

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l Peter B. Bloch, Chair Dr. James H. Carpenter Thomas D. Murphy

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In the matter of Docket Nos. 50-424-OLA-3 50-425-OLA-3 GEORGIA POWER COMPANY, et a b Re: License Amendment l (Transfer to Southern (Vogtle Electric Generating Nuclear)

Plant, Units 1 and 2)

ASLBP No. 93-671-01-OLA-3 MEMORANDUM AND ORDER (Clarification of the Scope of Discovery)

In LBP-93-15 (July 21, 1993) we decided that:

. . . it is appropriate to manage the discovery process by dividing it into two phases. 10 CFR S 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.

It was our belief that this determination would simplify the discovery process. Apparently this is not so. The diffi- l culty relates to the meaning of our phrase " matters related to the bases of the admitted contention." Georgia Power Co. (Applicant) and the Staff of the Nuclear Regulatory Commission (Staff) agree on a restricted interpretation, and

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Mr. Allen L. Mosbaugh (Intervenor) advances a broader interpretation.

To place the bases in context, let us first set forth the admitted contention:2 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 integ-rity, as well as the necessary candor, truthfulness and willingness to abide by regulatory requirements.

Intervenor's position is founded in an examination of the admitted contention and of the Amendments to Petition to Intervene and Request for Hearing (December 9, 1992) ( Amended Petition). The core of Intervenor's analysis is found in Intervenor's Report of the Status of Discovery (August 9, 1993) at p. 2, footnote 1. That footnote lists all the specific sections of the Amanded Petition on which Inter-t venor relies for its interpretation of . the " bases of- the admitted contention."

l We find that Intervenor is correct; in each statement it I

makes in Intervenor's Report, especially at p. 2, footnote

1. In particular, the Amended Petition states, at p. 6,  !

footnote 2 (continued) - with respect to 10 CFR S 2.206 petitions filed on September 11, 1990, and July 8, 1991:

Because both of these petitions contain significant l factual information relating to all four contentions, petitioners hereby incorporate by reference these two petitions into the body of this amendment.

2 LBP-93-5, 37 NRC 96 (1993) at 110.

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By contrast to Intervenor's position, which is based on ,

the filed documents, Licensee maintains, in a letter to the  !

Board of August 9, 1993 (Licensee Letter) that the factual bases are limited to those which "were pleaded with reason-l able specificity by the Intervenor. "2 The Staff of the Nuclear Regulatory Commission has taken a similar position.3 l

However, Licensee and Staff do not rely on any Board deter-i mination of what was pleaded with reasonable specificity; instead, they apparently rely on their own judgment about 1

the way in which the generally worded contention should be narrowed.' We do not concur in that judgment. Hence, we i refuse to limit the scope of Phase I, as would Licensee and l Staff, to the issues of illegal transfer of the operating license and alleged false statements about diesel starts.

In ruling that the S 2.206 petition contains bases for the admitted contention, we do not extend the scope of the proceeding beyond the admitted contention. Hence, there 2

See also Georgia Power Company's Response to Allen L.

Mosbaugh's First Set of Interrogatories, June 2, 1993 at 3.

3 NRC Staff Response to Intervenor's First Set of

Interrogatories and Request for Documents to Staff of the U.S. Nuclear Regulatory Commission, July 2, 1993 at 2.

'Our Memorandum and Order admitting a Contention, LBP-93-5, 37 NRC 96 (1993) at 102-105, 110, has a sufficient discussion of the bases of the contentions to support the admission of the consolidated contention. That discussion does not rule on whether other bases referred to in ' the petition were argued with sufficient specificity to support admission of the contention. However, all of the bases that are relevant to the consolidated contention represent speci-fic areas of concern to the Intervenor and are therefore adequately specified to be covered in discovery.

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must be a direct or indirect connection between the bases in ,

the S 2.206 petition and the consolidated contention in t

order for sections of that petition to give rise to disco-very rights in this proceeding. ,

t ORDER 3 For all the foregoing reasons and upon consideration of the entire record in this matter, it is this 12th day of August, 1993, ORDERED, that:

The scope of discovery in Phase I of this proceeding shall be limited to the scope of the i admitted contention but shall extend to all the bases advanced by Mr. Allen L. Mosbaugh in'his amended petition.

FOR THE ATOMIC SAFETY AND LICENSING BOARD GdM pamesH. Carpehter Administrative Judge A " -

" J l Tfiofas D. Murphy [

l Administrative Judge v

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N' i Peter B. Bloch l- Chair Bethesda, Maryland i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I In the Matter of l

l GEORGIA POWER COMPANY, ET AL. Docket No.(s) 50-424/425-OLA-3 (Vogtle Electric Generating Plant, l Units 1 and 2) l CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB M&O ON SCOPE OF DISCOVERY have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Ser. 2.712.

Office of Comission Appellate Administrative Judge Adjudication Peter B. Bloch, Chairman U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Board I

Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Administrative Judge Administrative Judge James H. Carpenter Thomas D. Murphy Atomic Safety and Licensing Board Atomic Safety and Licensing Board l

U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Mitzi A. Young, Esq. John Lamberski, Esq.

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

Atlanta, GA 30308

, Ernest L. Blake, Jr. , Esq. Michael D. Kohn, Esq.

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

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

ig n b i b37 ah n b0 t

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Docket No.(s)50-424/425-OLA-3 LB M&O ON SCOPE OF DISCOVERY C. K. McCoy l V. President Nuclear, Vogtle Project Georgia Power Company Post Office Box 1295 Birmingham, AL 35201 i

Dated at Rockville, Md. this l 13 day of August 1993

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