ML20057A136

Memorandum & Order (Motion to Compel Production of Documents by Staff).* Denies Licensee Motion to Compel Staff Production of Documents for 75 Days Commencing on 930824. W/Certificate of Svc.Served on 930901

ML20057A136
Person / Time
Site:	Vogtle
Issue date:	08/31/1993
From:	Bloch P, Carpenter J, Murphy T Atomic Safety and Licensing Board Panel
To:	GEORGIA POWER CO.
References
CON-#393-14267 93-671-01-OLA-3, 93-671-1-OLA-3, OLA, OLA-3, NUDOCS 9309130101
Download: ML20057A136 (9)

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~93 SEP -1 Ap;g August 31, 1993 UNITED STATES OF AMERICA

• NUCLEAR REGULATORY COMMISSION g _ j jgg3 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 (Vog'.le Electric Generating Nuclear)

Plant, Units 1 and 2)

ASLBP No. 93-671-01-OLA-3  :

1 MEMORANDUM AND ORDER (Motion to Compel Production of Documents by the Staff) j This Memorandum and Order determines that we will not now order the production of documents that Georgia Power Company seeks from the Staff of the Nuclear Regulatory Commission (Staff). The Staff wishes to withhold specific documents from discovery because of its claim that release of the documents would interfere with an ongoing enforcement investigation. On the other hand, these materials are essential to the adjudication of this case. Mr. Mosbaugh's

[Intervenor's] petition was filed in October 1992; and we are sympathetic to Georgia Power Company's (GPC's) desire to get this case tried in a timely manner. We are highly 9309130101 930831 ADOCK 0500 4 O*2/

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sensitive to this need, even though GPC has not presented l specific factual arguments about the extent to which it is  !

being injured by delay.2 i t

I. Introduction 2 and Position of the Parties i Pursuant to 10 C.F.R. S 2.744 (c) , GPC moves the Atomic t

Safety and Licensing Board for an order compelling the NRC Staff to produce the certain documents identified more spe- I t

cifically below, including:

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1) Forty-four tapes provided by Intervenor to the NRC;

'In Pioine Specialists Inc., unpublished opinion of March 18, 1992 (Staff Reply Concerning Stay), the presiding officer considered whether or not to stay a civil proceeding concerning possible reinstatement of a license to use special nuclear materials. The stay was sought by the Staff '

because of a pending criminal prosecution. The effect of r the stay would have been to keep the respondent in the case out of business indefinitely. The presiding officer applied  :

the following test to whether or not to grant the stay: [

i The test is a weighing of four factors: (1) the length of the delay, (2) the reason for delay, (3) the defendant's assertion of the right to a prompt  ;

proceeding, and (4) the prejudice to the defendant i

of a delay in the civil proceeding.

Winco, 407 U.S. 514, 562-65 (1972)

(Barker v.  ;

and United States v. Eicht Thousand Eicht Hundred and Fiftv Dollars (S8,850) in United States Currency, 461 U.S. 555, 564-565 (1983) . See also Advanced Medi-  !

cal Systems, 25 NRC 865, 869-871 (1987).] l Although a stay is not being sought in the instant case, the i question may be considered to be analogous: when to require i the disclosure of documents alleged to be relevant to an enforcement purpose. (

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In this section of our opinion, we borrow extensively from the accurate discussion in Georgia Power Company's l Motion to Compel NRC Staff Production of Documents, August  ;

9, 1993.

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2) Transcripts of these tape recordings; and  :

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3) Certain documents evidencing statements made by l r

Intervenor to the NRC.

GPC asks that these documents be produced immediately. They f

are necessary both for hearing preparation and for a proper I decision in this proceeding, and they are not available from e

another source. L The documents listed above were sought by Georgia Power Company's First Request for Production of Documents by the I NRC Staff (May 3, 1993) [GPC's Document Request). Other l

than four relevant audio tapes, transcripts of which were f i appended to the Staff Response, the NRC Staff has objected to the release of any relevant documents. NRC Staff Re- l sponse to Georgia Power Company's First Request for Produc- f tion of Documents by the NRC Staff (June 18, 1993) [ Staff Response); NRC Staff First Supplemental Response to Georgia i Power Company's First Request for the Production of Docu- f r

j ments by the NRC Staff (June 24, 1993)[ Staff Supplemental f Response).

A. Georgia Power's Position We are fully aware of Georgia Power Company's l characterization of the importance of the sought documents:

The documents being sought are extremely im-portant to GPC's defense and preparation for this  ;

case. This proceeding involves very serious alle-  ;

gations made by Intervenor against GPC-allega-tions that GPC vigorously disputes. Intervenor maintains that his allegations are supported by l l

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the tape recordings which he transferred to the NRC, and has produced excerpts of his recordings.

Intervenor's excerpts, however, are not complete and appear to omit important exculpatory material.

Portions of the full tapes have been played in the presence of GPC counsel during OI [ Office of Investigations) interviews and reveal that there 1 are additional statements and discussions showing the importance that GPC places on accurate <

reporting and the efforts that were undertaken to l resolve comments on the April 19, 1990 LER.  ;

Accordingly, to demonstrate that Intervenor's claims of willful misconduct are baseless, it is critical that GPC have access to the complete tapes. Indeed, the tapes have already been recog-nized by the Licensing Board as being " essential evidence" in this proceeding. Memorandum and Order ( April 21, 1993), LBP-93-8, 37 NRC , slip op. at 13.

Intervmor has also provided other statements to the NRC, a. d has been interviewed by the NRC on a number of occasions. Access to these documents and statements is similarly essential to determine any other bases (or lack thereof) for Intervenor's allegations and to identify documents that might be introduced as evidence in this proceeding.

Needless to say, prior statements by Intervenor '

may reveal inaccuracies and inconsistencies in his accounts, affecting Intervenor's credibility.

Such prior statements may also include remarks exculpating GPC, which may be introduced as ad-missions. Where a proceeding such as this in- i volves serious allegations and assertions by a single individual, unfettered access to the indi-vidual's prior statements is required for a fair and complete hearing.

B. Staff's Position The Staff states that:

On August 9,1993, Licensee timely filed

" Georgia Power Company's Motion To Compel NRC l Staff Production of Documents" [GPC Motion). The Staff opposes granting the GPC Motion at this time j

because (a) release of the documents could compromise ongoing investigation and enforcement activities and (b) Licensee fails to demonstrate j that it will be prejudiced if the documents are  ;

not now released. For the reasons set forth l

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below, the Staff requests that the Board, upon a )

balancing of factors discussed below, defer ruling l on the motion for 75 days, during which time it is anticipated that the OI investigation can be i completed and the Staff can determine whether to recommend enforcement action to the Commission.

' Release of the documents at this time could prejudice the possible enforcement action. If the Board denies this request, the Staff requests that it be permitted to make an in camera presentation of the withheld information prior to the Board issuing an order compelling production of such documents.

The Staff relies on Oncoloav Services Corp., CLI-93-17, 38 NRC (Slip op. at 8, 20, August 19, 1993),

citing Randall C. Orem. D.O., CLI-93-14, 38 NRC (slip op. !

at 6-7):

The agency has a strong interest in ensuring the truth and accuracy of information provided to the  !

Commission by a licensee. Allegations of this l type may form the basis for further enforcement '

action. . . . Therefore, during the course of such an investigation, the government has a strong interest in preventing premature release of j information which could jeopardize the integrity  !

of interviews yet to be conducted, and which could i allow witnesses to tailor their testimony or statements in order to avoid culpability or to I conform testimony with the testimony of others who have been interviewed.

The Staff also cites NLRB v. Robbins Tire and Rubber Co., i l

437 U.S. 214, 239-43, holding that it is error to release l information pursuant to the Freedom of Information Act, 5 U.S.C. S 552 (b) (7) (4 ) (Exemption 7(A)), if the release of that material might interfere with an ongoing investigation.

Staff also has submitted the affidavits of Ben B.

Hayes, Director of the Office of Investigation (OI) of the Nuclear Regulatory Commission (NRC) and of James Lieberman, 1

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Director of the NRC's Office of Enforcement (OE) . The Hayes  !

Affidavit states that OI is writing a report, which also is i i

being reviewed by OE, and that the result of this writing j and review process might be the need to do additional field  !

work before the investigation is completed. Hayes Affidavit t

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• The Lieberman Affidavit states that, "Some of the  ;

information and evidence presented by OI . . . suggests that  ;

enforcement action should be initiated." He states that OE l i

is cooperating with the NRC's Office of General Counsel and i

its Office of Nuclear Reactor Regulation in a careful review of the evidence. Mr. Lieberman states that further i 4

5 investigation or field work may be necessary as a result of l this review. Lieberman Affidavit 55 3-5.  :

t II. Conc.'usion i

Under the circumstances, we consider the documents that i are sought by Georgia Power to be exempt from disclosure for  !

75 days because they are related to an ongoing enforcement i investigation.8 However, we caution the Staff that prior to l

3" Statement of Policy: Investigations, Inspections, and Adjudicatory Proceedings," 49 Fed. Reg. 36,032-33 (September 13, 1984) (" Release of Investigative material to the subject of an investigation before the completion of the investiga-tion could adversely affect the NRC's ability to complete that investigation fully and adequately. . . . However, the need to protect information developed in investigations or inspections usually ends once the investigation or inspection is completed and evaluated for possible 1 enforcement action.)

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l the 75th day, it should, if necessary, make a fresh showing  !

concerning why documents should not be released. The !

parties to this adjudication are entitled to a swift l l

resolution of their differences. I i

III. ORDER For all the foregoing reasons and upon consideration of l the entire record in this matter, it is this 31st day of August, 1993, ORDERED, that: .

1. Georgia Power Company's Motion to Compel NRC Staf f Production of Documents, August 9, 1993

[ Motion), is denied for 75 days commencing on August 24, 1993, the date of the Affidavit filed by Ben B. Hayes.

2. On Monday November 8, 1993, the first working day after the 75th day, the Motion shall be granted, unless the Staff has earlier filed a show-cause motion. Such a motion should be filed by the Staff promptly upon learning that it will need a further extension of time. Georgia Power may then have ten days in which to respond, or they may voluntarily waive their right to respond.

FOR THE ATOMIC SAFETY AND LICENSING BOARD t .

%1 b J'mes H. Carpenter dministrative Judge w '

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Thomas D. Murphy

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Administrative Judge

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.- / 'Y Peter B. Bloch Chair Bethesda, Maryland

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

In the Matter of  !

GEORGIA POWER COMPANY, ET AL. Docket No.(s) 50-424/425-0LA-3 l (Vogtle Electric Generating Plant,  ;

, Units 1 and 2)

CERTIFICATE OF SERVICE ,

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I hereby certify that copies of the foregoing LB M&O (MOTION TO COMPEL...)

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 Sec. 2.712. i i

t Office of Commissitn 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 .

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. i Administrative Judge Administrative Judge  !

James H. Carpenter Thomas D. Murphy

Atomic Safety and Licensing Board Atomic Safety and Licensing Board i U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission <

Washington, DC 20555 Washington, DC 20555 l

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l Mitzi A. Young, Esq. John Lamberski, Esq. j Office of the General Counsel Counsel for Georgia Power Company U.S. Nuclear Regulatory Commission Troutman Sanders Washington, DC 20655 Suite 5200, 600 Peachtree Street. N.E. l J 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.

4 Washington, DC 20037 Washington, DC 20001

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I Docket No.(s)50-424/425-OLA-3 '

LB M&O (MOTION TO COMPEL...)

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j C. K. McCoy j V. President Nuclear, Vogtle Project -

Georgia Power Company l Post Office Box 1295  :

Birmingham, AL 35201 i

- 1 Dated at Rockville Md. this f/

1 day of September 1993 (-

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Office of the Secretary of the Commission '

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