ML20057B020
| ML20057B020 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 09/09/1993 |
| From: | Barth C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#393-14293 OLA, OLA-3, NUDOCS 9309170071 | |
| Download: ML20057B020 (13) | |
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Y, September 9,1943 _
E 1e UNITED STATES OF AMERICA i
E bm N ",, O *,, I NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD' In the Matter of
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GEORGIA POWER COMPANY
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Docket Nos. 50-424-OLA-3 i
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50-425-OLA-3
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(Vogtle Electric Generating Plant,
) Re: License Amendment Units 1 and 2)
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(Transfer to Southern Nuclear) l NRC STAFF RESPONSE TO MOTION FOR RECONSIDERATION OF AUGUST 12,1993 -
MEMORANDUM AND ORDER OR IN THE ALTERNATlv'E FOR CERTIFICATION L INTRODUCTION Georgia Power Company (GPC) moved for reconsideration of the Memorandum i
and Order (Clarification of the Scope of Discovery) (Order) issued August 12,1993,on j
the grounds that it would allow discovery and litigation of matters not set out as the bases l
for the admitted contention in this proceeding or alternatively for the Board to cenify to t
the Commission the issue of whether litigation of the admitted contention is limited to. the
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i bases set out with reasonable specificity.8 For the reasons set forth below the NRC Staff i
supports the Motion for Reconsideration, but does not believe the standards for I
I certification are met.
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Georgia Power Company's Motion For Reconsideration of August 12,1993
-l Memorandum and Order Or In The Alternative For Certification, dated August 23,1993
(" Motion"), at 27.
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930917o071 930909 i
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BACKGROUND i
j As here pertinent, the Intervenor filed " Amendments To Petition To Intervene And
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i Request For Hearing" (" Amendments" or " Amendments to Petition") on December 9, l
199~.. These Amendments included the Intervenor's proposed contentions. In setting out the basis for the contentions, the Intervenor made reference, in various places, to a l
l petition and amendments to that petition which he had previously filed with the Director-of Nuclear Reactor Regulation pursuant to 10 C.F.R. 5 2.206, and stated he was incorporating matters set out in the petition or portions of matters in that petition into the subject pleading. See, e.g., Amendments at 5 n.2, 8 nn.5-6,10,16 n.ll,18. (The extent to which these matters were referenced or incorporated is discussed below.)
The Licensing Board, in LBP-93-5,37 NRC 96,102-05 (1993), admitted three of the four contentions submitted by the Intervenor. In discussing proffered Contention 1 f
the Board stated that it was allowing litigation of whether operating authority over Vogtle j
i had been improperly transferred to SONOPCO. 37 NRC at 103. In discussing proffered i
contentions 2 and 3, the Board stated:
"Mr. Mosbaugh alleges that, 'SONOPCO's l
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highest level of management conspired to submit and did not submit materially false information to the NRC pertaining to a March 1990 Site Area Emergency,'" which pertained to' the alleged falsification of data concerning diesel operability and the authorization to restart Vogtle. 37 NRC at 104. No other basis for the admission of the consolidated contention or any other incident was indicated. 37 NRC at 103-05. The f
r Licensing Board then consolidated these three contentions into one contention which read:
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i 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 well as the necessary candor, truthfulness, and willingness to abide by.
regulatory requirements.
37 NRC at 110.
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In the course of discovery, disputes arose between the parties, and the Licensing l
Board issued LBP-93-15,38 NRC __ (July 21,1993), which stated in part:
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[I]t is appropriate to manage the discovery process by dividing it into two phases. 10 C.F.R. 5 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.
Slip op at 3.
i Dispute then arose as to which " matters related to the basis for the admitted i
contention" and whether such bases included all the matters included in the section 2.206 I
i petition filed with the Director of Nuclear Reactor Regulation, as well as penaining to i
the purportedly illegal transfer of operating authority and the matters relating to the diesel reliability data. See Memorandum and Order, August 12,1993, at 1-3. The Board then
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stated that:
"In ruling that the 6 2.206 petition contains bases for the admitted ll contention, we do not extend the scope of the proceeding beyond the admitted -
I contention," and ruled that discovery could be had on those matters set out in the f 2.206 l
petitions whether or not they were explicitly mentioned in the proffered contentions or considered in the order admitting the consolidated contention in. tis proceeding. Id.' at i
3-4. The Licensee filed its Motion for Reconsideration or Certification from this Order, i
on August 23,1993.
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I DISCUSSION 1.
Intervenor May Not Litigate Matters Not Plead _rd With Specificity.
l The discovery dispute herein centers around whether the Intervenor provided as a basis for the admitted contention matters other than those involving the purported illegal transfer of control of operating authority of Vogtle and the representations relevant to diesel generator reliability matters reported in LER 90-006. Motion at 27, see also i
CL1-93-17, slip op. at 25.
i The Staff, as well as GPC, has maintained that the admitted contention embraces an alleged illegal takeover of the operation of the Vogtle Facility by Southern Nuclear Operating Company Inc. (SONOPCO) and false statements allegedly made to the NRC i
by GPC relating to reporting starts of the diesel generators between March 20,1990, and April 9,1990.2 The Licensing Board has interpreted of the scope of the contention (and i
thus proper matters for discovery) to encompass not only those matters, but also all the -
allegations in the petition filed by Mr. Mosbaugh with Director of Nuclear Reactor l
t Regulation, under 10 C.F.R. p 2.206. Order of August 12,1993, at 3-4.
The Commission's regulations provide that contentions must contain a statement i
of the matters in controversy together with a brief explanation of the basis of the l
l contention and the alleged facts and expert opinion relied upon to prove the contention.
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10 C.F.R. $ 2.714(b)(2)(i) & (ii). References are to be made "to those specific sources i
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2 Georgia Power Company's Response to Allen L. Mosbaugh's First Set of
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Interrogatories, June 2,1993, at 3. NRC_ Staff Response to Intervenor's First Set of j
Interrogatories and Request for Documents to Staff of the U.S. Nuclear Regulatory Commission, July 2,1993, at 2. The Board's August 12,1993 Order at 3 recognizes the i
Staff and GPU position.
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- l and documents of which the petitioner is aware and on which petitioner intends to rely l
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to establish those facts or expert opinion." 10 C.F.R. 5 2.714(b)(2)(ii).' Further, a
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contention should have sufficient information, including references to the application, to t
show that there is a genuine dispute with the applicant. 10 C.F.R. f 2.714(b)(2)(iii).
Generally, with the exception of references to evidence on which one will rely in hearing or to matters in the application, a petitioner may not incorporate the basis of the j
matters it seeks to litigate by reference. Sacramento Municipal Utility District, CLI-93-3, i
37 NRC 135,146 (1993); Public Service Co. of New Hampshire, CLI-89-3,29 NRC 234-40 (1989). In Rancho Seco, it was held that reference to the Staff's questions to a licensee provided no basis for a contention concerning the adequacy of an environmental
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l report. Here there is even lessjustification for maintaining that references to Intervenor's allegations in other documents which he wrote could provide the specificity which is required to be set out in the basis of a contention. In Scabrook, it was held that a reference to another lengthy document filed by the petitioner with the Commission did not provide "the basis for or.. a statement of his contention." 29 NRC at 240-41.
Here also, the reference to the lengthy 2.206 petition, and the amendments to that 2.206 petition, filed by this Petitioner, which contained a plethora of allegations, could not provide a basis for a matter to be litigated. See Georgia Power Co. (Vogtle Electric i
8 Although this provision provides for reference to sources' and documents it is limited to matters that can be relied upon to establish facts and expert opinion. It is not intended as a " bootstrap" where one could reference allegations set out in another-document and claim it provided a basis for a contention. Cf Intervenor's Response at 4.
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Generating Plant, Units 1 & 2); DD-93-8,37 NRC 314 (1993), vacared and remanded, j
CLI-93-15, 37 NRC.__ (July 14, 1993), for a listing of those allegations.'
i Moreover, the references to the relevant 2.206 petition in the Intervenor's bases i
for its contentions, were not to all alkgations contained in the lengthy 2.206 petition, but l
only to matters concerning the alleged unauthorized transfer of operating authority over i
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Vogtle and the diesel generator reliability matters reported in LER 90-006. The first j
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reference to the 2.206 petition (which the Board discusses at 2 of its August 12, 1993 Memorandum and Order), is in n.5 at 5-6 of the Amendments To Petition. The first sentence of the footnote states: " Evidence relating to the creation of SONOPCO is l
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contained in petitions filed by Allen Mosbaugh and Marvin Hobby pursuant to 10 C.F.R.
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i f 2.206." The last sentence of the footnote is limited by the subject of the reference set out in the first sentence of the footnote and the accompanying text.
There is no I
i Director's Decision on the 2.206 petitions indicates that the petitions involve a wide l
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variety of matters concerning Vogtle and another facility, including:
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A)
An illegal transfer of control from GPC to SONOPCO.
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False statements by Mr. Mcdonald to the NRC Staff on January j
11,1990.
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Misleading statements of GPC to the Commissioners on March 30, i
1989.
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Improper use of Tech Spec 2.c.3.
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Wilfully violating Tech Specs.
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Improperly opening dilution valves.
2)
Failure to secure dilution valves.
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Miscalculating shutdown margin.
4)
"Taking" LERs.
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Surveillance Testing, i
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Improperly changing operation mode.
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Failure to declare RNR pump inoperable.
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Concealing Safeguards problems.
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Operating Radwaste System improperly, i
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indication in the note or in the text of the Amendments To Petition that any other matter was there being incorporated by reference in this footnote as a basis for the contentions, but the particular matters relevant to 'lic creation of SONOPCO. The text itself states that the matters referred to only concern the "'SONOPCO' project." A general statement l
that lengthy documents contain factual information supporting the contentions, did not provide notice that any subject was being incorporated which was not identified with specificity in the text of the basis for the contention.
The succeeding references to the 2.206 petition in the Amendments to Petition are to matters which are relevant to only the alleged improper transfer of control or the diesel l
generator representations. The Amendments to Petition, at 8-13, references the 2.206 i
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petition, but all references deal with whether there had been an improper transfer of z
operating authority over Vogtle. No reference to the 2.206 petition in any other respect q
l is mentioned.
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In a like manner, the reference to the 2.206 petition in the remainder of the t
Amendments to Petition only concern the alleged false representations in regard to the f
i diesel generator matter. At 16-18. At 18 of the Amendments to Petition, although referencing all of the 2.206 petition, Petitioner only incorporates "in particular" matters s
b relating to alleged false statements concerning the diesels. As in regard to SONOPCO' t
transfer, the references here were not to allegations generally in the 2.206 petition, but i
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only in regard to the bases otherwise mentioned in the Amendments to Petition.
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Further in' LBP-93-3,37 NRC 96,103-04 (1993), the Board recognized that the j
bases of the contention admitted for litigation was only whether control over the operation j
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of Vogtle had been illegally transferred and whether representations regarding the diesels l
were falst As to Interrenor's Contention 1, the basis was recognized as being the j
purported transfer of control. 37 NRC at 103. As to Intervenor's Contentions 2 and 3, j
the board stated, "As a basis for [these] contentions, Mr. Mosbaugh alleges that
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'SONOPCO's highest level of management conspired to submit and did submit materially false information to the NRC concerning critical safety-related information pertaining to i
a March 1990 Site Area Emergency.'" 37 NRC at 104. This is the matter involving reporting on the reliability of the diesel generators. No other matter is mentioned as a basis of the contentions or a matter to be litigated. 37 NRC at 104-05. Interrenor's i
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Contention 4 was rejected. 37 NRC at 105. In consolidating Intervenor's contentions l
into one for litigation, no other matter was considered as a matter for litigation. 37 NRC f
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j at 110. No other matter but those set out with specificity in the submitted contentions 4
and the bases of the contentions was admitted for litigation.
i In sum, the matters in the 2.206 petition, as a matter of NRC practice, could not I
be incorporated generally into the bases for the contentions. Further, the referenced i
l matters identified in the Amendments to Petition only concerned the issues involving the i
alleged unauthorized transfer and representations concerning the diesel generators. There was no general incorporation, as there could not be, of all allegations in the 2.206
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petition into this proceeding.5 j
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The Commission in Georgia Pomer Co. (Vogtle Electric Generating Plant, Units 1 & 2), CLI-93-15,38 NRC Quly 16,1993), indicated that the issues before this Board did not encompass all of the many issues in the 2.206 petitions.. It stated (slip.op.
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(continued...)
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CERTIFICATION TO THE COMMISSION i
l As alternative relief, GPC requests that the Board certify questions to the i
t Commission involving the scope of the admitted contention.
Motion at 25-26.
j Certification of questions to the Commission for its determination is governed by 10 C.F.R. E 2.786(g) which provides:
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(g) Certified questions and referred rulings. A question certified to the Commission under 5 2.718(i) or a ruling referred under f 2.730(f) must meet one of the alternative standards in this' subsection to merit Commission review.
A certified question or referred ruling will be reviewed if it either -
(1) Threatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be l
alleviated through a petition for review of the presiding officer's final decision; or i
(2) Affects itie basic structure of the proceeding in a pervasive or j
j unusual manner.
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f-Although the Staff believes that the subject Order on which reconsideration is i
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l sought will cause unnecessary, needless and costly litigation, the Staff does not believe 1
s the issue is one for certification under the above standards. No matter is involved that i
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could not be corrected by latter appeal. Nor does it affect the basic structure of the f
proceeding in a persuasive or unusual way. Should the Intervenor prevail, any overly j
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1 broad interpretation of the contention could be corrected upon appeal. This situation is j
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5 (.. continued)
Moreover, we recognize here that Mr.' Mosbaugh has not invoked section 2.206 to avoid pending adjudication and that his section 2.206 l
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petition seeks relief with respect to issues and facilities that are not before l
the Licensing Board in the pending transfer proceeding. (Emphasis l
l supplied.)
See also id., CLI-93-16, 38 NRC _ (August 19, 1993), slip op. at 25.
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no different than one allowing a contention in for litigation that should not be allowed or i
a failure to grant summary disposition of a contention. In neither case does the delay and expense of litigating matters that should not be further considered warrant certification of the matter to the Commission. See Public Service Co. ofNew Hampshire (Seabrook l
Station, Units 1 and 2), ALAB-838,23 NRC 585,592 (1986); Pennsyh'anio Power &
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Light Co. (Susquehanna Steam Electric Station, Units I and 2), ALAB-641,13 NRC 550, 1
l 551-2 (1981). The expansion of issues is not a cause for interlocutory review. Long i
1sland Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-888, 27 NRC i
257, 262-63 (1988).6 i
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- In the Memorandum and Order of August 12,1993, at 3 n.4. The Board states:
Our Memorandum and Order admitting a Contention, LBP-93-5,37 NRC j
96 (1993) at 102-105,110, has a sufficient discussion of the bases of the i
contentions to support the admission of the consolidated contention. That discussion does not rule on whether other bases referred to in the petition i
l were argued with sufncient specificity to support admission of the l
contention. However, all of the bases that are relevant to the consolidated contention represent specific areas of concern to the Intervenor and are therefore adequately specified to be covered in discovery.
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j The last sentence is a non Sequirur. That a matter is of concern to an intervenor, does not show that it is germane for discovery. The political affiliation of the corporate.
1 officers of the licensee might be of concern to the intervenor, but this does not show it would be a proper basis for the admitted contention or germane for discovery. Bases must be pleaded with specificity so it can be ascertained if they are relevant. The bases i
l the Intervenor now maintains are part of the contention because ofits broad reference to the 2.206 petitions were never examined to determine whether they are relevant to the i
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specific issues and bases admitted for litigation herein.
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CONCLUSION The Licensing Board should reconsider its August 12,1993 Order and limit the l
1 issues in this proceeding to those pled with specificity by Mr. Mosbaugh in his amended i
petition. However, under the regulation and precedent, the questions here presented are not appropriate for certincation to the Commission.
Respectfully submitted, b
b G & fg f
Charles A. Barth Counsel for NRC Staff i
Dated at Rochille, Maryland this 9th day of September 1993
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.%Y 93 Er 10 A L 24 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i
In the Matter of
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l GEORGIA POWER COMPANY, et al.
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Docket Nos. 50-424-OLA-3 l
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50-425-OLA-3 (Vogt!c Electric Generating Plant
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Units I and 2)
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Re: License Amendment l
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(Transfer to Southern Nuclear)
CERTIFICATE OF SERV?CE I hereby certify that copies of "NRC STAFF RESPONSE TO MOTION FOR i
RECONSIDERATION OF AUGUST 12,1993 MEMORANDUM AND ORDER OR IN l
THE ALTERNATIVE FOR CERTIFICATIvN" in the above-captioned proceeding have l
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 9th day of September 1993.
Peter B. Bloch, Chairman
- Thomas D. Murphy
- l Administrative Judge Administrative Judge i
Atomic Safety and Licensing Board Atomic Safety and Licensing Board l
Mail Stop: EW-439 Mail Stop: EW-439 U.S. Nuclear Regulatory Comn.ission U.S. Nuclear Regulatory Commission '
Washington, D. C. 20555 Washington, D. C. 20555 i
(301) 492-7285 (301) 492-7285.
i Judge James H. Carpenter John 12mberski, Esq.
933 Green Point Drive Arthur H. Domby, Esq.
Oyster Point Troutman Sanders Sunset Beach, NC 28468 NationsBank Building, Suite 5200 600 Peachtree Street, N. E.
Atlanta, Georgia 30308 (404) 885-3949
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David R. Lewis, Esq.
Adjudicatory File * (2)
Shaw, Pittman, Potts and Trowbridge Atomic Safety and Licensing Board 2300 N Street, N. W.
Panel Washington, D. C. 20037 Mail Stop: EW-439 (202) 663-8007 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 -
l Michael D. Kohn, Esq.
I Stephea M. Kohn, Esq.
Atomic Safety and Licensing Board i
Kohn, Kohn and Colapinto, 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 i
Office of Commission Appellate Office of the Secretary * (2) l 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 i
kl<C h
/M Charles A. Barth j
Counsel for NRC Staff l
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