ML20057D110
| ML20057D110 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 09/24/1993 |
| From: | Bloch P, Carpenter J, Murphy T Atomic Safety and Licensing Board Panel |
| To: | AFFILIATION NOT ASSIGNED |
| References | |
| CON-#493-14338 2.206, 93-671-01-OLA-3, 93-671-1-OLA-3, LBP-93-21, OLA-3, NUDOCS 9310010119 | |
| Download: ML20057D110 (14) | |
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UNITED STATES OF AMERICA I
NUCLEAR REGULATORY COMMISSION-l l
ATOMIC SAFETY AND LICENSING BOARD I
l l
Before Administrative Judges:
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Peter B.
Bloch, Chair i
I Dr. James H.
Carpenter l
Thomas D. Murphy l
t In the matter of Docket Nos. 50-424-OLA-3 50-425-OLA-3 GEORGIA POWER COMPANY, et al.
Re: License Amendment i
I (Transfer to Southern
-j (Vogtle Electric Generating Nuclear)
Plant, Units 1 and 2) i ASLBP No. 93-671-01-OLA-3 MEMORANDUM AND ORDER (Georgia Power Motion to Reconsider Scope of Proceeding) l 1
l In our unpublished decision of August 12, 1993, at pp.
l 2-3, we said:
1 I
We find that Intervenor is correct.in each statement it makes in Intervenor's Report,2 espe-cially at p.
2, footnote 1.
In particular, the Amended Petition 2 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:
1 l
l i
- Intervenor's Report of the Status of Discovery (August 9,
1993) 2Amendments to Petition to Intervene and. Request for Hearing, December 9, 1992.
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9310010119 930924
-PDR ADDCK 05000424 O
,PDR.
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4
. Because both of these petitions contain signifi-i cant factual information relating to all four contentions, petitioners hereby incorporate by reference these two petitions into the body of this amendment.
Subsequently, on August 23, 1993, Georgia Power Company (GPC) filed a Motion for Reconsideration of August 12, 1993 Memorandum and Order or in the Alternative for Certifica-tion.
(Motion for Reconsideration. )
This Memorandum and Order shall grant GPC's Motion for Reconsideration.
Our review of the Amended Petition persuades us that the main text of that Petition clearly delineates the major issues that support the contention.
There are a few references to the S2.206 petitions - but only in footnotes.
These footnotes reference only portions of the petitions that are relevant to the text that is being footnoted.
If 1
Intervenor intended more than this, he did not make it plain in the document, and parties and adjudicators are not re-quired to search for raeanings that are not obvious.
We have therefore decided that the footnotes are an add-on and do not change the thrust of the primary argument in the text.
I.
Preliminary Procedural Point We consider GPC's Motion for Reconsideration to be
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extraordinary because it raises new arguments that GPC 'aad the opportunity to raise at each of the following earlier juncturest its response to Allen L.
Mosbaugh's (Interve-nor's) motion to produce, its response to Inte'.cVenor's
. motion to compel, and its status report concerning negotia-tions among the parties.
Indeed, Intervenor's argument in its Report on the Status of Discovery, August 9,
- 1993, was persuasive to us concerning the scope of discovery.
Since GPC knew that this issue was unresolved it also had an opportunity to use its status report to brief this issue.
Ordinarily, a motion for reconsideration points out a deficiency in the way a Board considered the arguments I
before it.
It should not delay a case by presenting new arguments that should have been presented earlier.
Texas l
Utilities Electric Co.
(Comanche Peak Electric Station, Units 1 and 2),
LBP-84-10, 19 NRC 509, 517-18 (1984);
Tennessee Vallev Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-418, 6 NRC 1, 2 (1977).
In this case, no party objects to the nature of this notion and we are not under any time pressure because a i
delay in discovery has been granted to permit Staff to complete a pending investigation. Therefore, we do not deny l
this request because of its extraordinary nature.
- Instead, fairness requires that we decide the motion on its merits.
II.
The Merits of the Petition A.
References Relating to Alienation of Control The most persuasive argument presented by GPC (at pp.
13, 14, 15 of its motion) is contained in the following, statement:
s.--
-4 Intervenor's Amended Petition did not specify any issues other than the alleged illegal license transfer and the alleged false statements relating to LER 90-006.
Nor could GPC reasonably infer that Inter-venor intended to raise.
issues [ relating to its S 2.206 petitions) in his Amended Petition.
In the context in which they were used in the Amended Petition, the references to the 5 2.206 petitions appeared to be nothing more than references to documents asserted to support the specific allegations discussed in the Amended Petition.
For example, footnote 2 of the Amended Peti-tion appears in the section discussing the alleged illegal license transfer and references the 2.206 petitions as evidence related to the creation of Southern Nuclear.
Intervenor's broader view of the references to his 2.206 petitions is unreasonable.
The Staff of the Nuclear Regulatory Commission (Staff) agrees with GPC's position.3 l
1 B.
Principles of Interpretation
)
We conclude that 10 C.F.R.
S 2. 714 (b) (2) should be interpreted not only as a pleading requirement but also as a principle of interpretation.
Sacramento Municinal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-3,
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37 NRC 135, 142-3 (1993) (petitions should be organized so 3Staff's September 9,
1993, Response to Motion for Reconsideration of August 12, 1993, Memorandum and Order Or in the Alternative for Certification, at 6-7.
. that their meaning is obvious)*; Public Service Concany of i
New Hamoshire, et al.
(Seabrook Station, Units 1 and 2),
CLI-89-3, 29 NRC 234, 240-41 (1989)(A reference in a contention to a massive document lacks sufficient clarity because the Commission need not search for a needle in a haystack.).
10 C.F.R.
S 2.714 (b) (2) requires that petitioner state what he will rely on and the portion of the appli-l cation that he is differing from.
Thus, the regulation re-quires substantial specificity and it is a settled rule of practice at this Commission that contentions ought to be interpreted in light of the required specificity, so that adjudicators and parties need not search out broader meanings than were clearly intended.
We reach no holding on the broad argument that material cannot be incorporated in a petition by reference.
It appears to us that such matters are better decided on a case-by-case basis by interpreting the materials actually filed and the nature of the references in question.
As the i
Appeal Board said in Texas Utilities Electric Co..
et al.
J (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912, 930 (1987):
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'We do not accept Staff's argument that the cited case means that no outside documents may be referenced.
(Staff Response at 5.)
In Sacramento Municinal Utility District at 146, the commission says that Staff auestions may not be cited in support of a contention because questions do not by themselves indicate that an Environmental Report is inade-quate.
. [T]he bases requirement is merely a pleading requirement designed to make certain that a proffered issue is sufficiently articulated to provide the other parties with its broad outlines 4
and to provide the Licensing Board with enough information for determining whether the issue is appropriately litigable in the instant proceeding.
The requirement generally is fulfilled when the sponsor of an otherwise acceptable contention provides a
brief recitation of the factors underlying the contention or references to documents and texts that provide such reasons.
l We are persuaded that the scope of the contention should be determined by interpreting it in light of the entire Amended Petition.
We admit that after re-reading that document in light of the Motion for Reconsideration, we conclude that we erroneously accepted Intervenor's argument and interpreted passages out of context.
We also conclude that Intervenor's references to the S 2.206 petition were intended only to supply additional material in support of the basic facts that were supplied in the petition.5 A
careful examination of the Amended Petition will show this to be so.
5See, in support of this position, the September 9,
1993, NRC Staff Response to Motion for Reconsideration of August 12, 1993 Memorandum and Order, Or in the Alternative for Certification (Staff Response), at 6.
We are aware that Intervenor's Response, at 3,
par-ticularly footnote 1,
cites portions of GPC's Response to the Amended Petition in support of its interpretation.
How-ever, we were never impressed by GPC's argument that there was any relevance to the admission of contentions in this proceeding to whether or not they were raised in the prior 5 2.206 petition.
We are also not persuaded that because GPC made that argument that either GPC or the Board should interpret the Amended Petition to incorporate in its entire-ty the S 2.206 petition.
9 For example, at p.
5, footnote 2, Intervenor makes his first mention of the S 2.206 petitions.
The footnote begins: " Evidence relating to the creation of SONOPCO is contained in petitions filed pursuant to 10 C.F.R. 2.206."
This is the predicate for a
footnote that concludes:
]
-i Because both of these petitions contain i
significant factual information relating to all four contentions, petitioners hereby incorporate by reference these two petitions into the body of this amendment.
This concluding paragraph, read out of context, seems very broad.
It could be a general reference to all the issues and evidence presented in the petitions.
However, in light of the first sentence of the footnote, we think it ap-propriate to interpret the concluding paragraph as a careful effort to assure that Intervenor could rely on anything in the petitions having to do with the creation and operation of SONOPCO.
C.
References With Respect to Character The Amended Petition contains the same general pattern that we have just discussed in subsequent references to the petition contained in its discussion of the factual basis of j
contentions 2,
3 and 4.
At the bottom of page 14 of the petition, Intervenor states, "The f actors demonstrating that SONOPCO management does not have the candor, truthfulness and willingness to abide by regulatory requirements neces-l l
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sary to operate a nuclear facility follows."
The Amended Petition then focuses on an alleged conspiracy to submit materially false information in two different arenas.
Near the end of the discussion of contentions 2, 3 and 4, on page 16, in footnote 11, there is general language reminiscent of the language we have discussed in the text above.
The footnote " incorporates the petition."
We conclude, how-ever, that this reference is solely for the purpose of but-tressing other bases for the existence of the alleged con-spiracy to submit false information.
Similarly, on page 18, Intervenor " incorporates by reference the entirety of his July 8, 1991
. petition" but then specifically mentions two sections relating to false statements.
We also interpret this general language as a careful, lawyerly device to preserve the right to use material contained in the petitions that supports the alle-gation of a conspiracy to submit false information.
D.
Conclusions To the extent that the cited reference material falls within the argued contentions, the references are effective to incorporate referenced material that may be the basis for further discovery.
But he references do not raise new points not argued in the Amended Petition.
There was noth-ing in the Amended Petition that we interpret to indicate that Intervenor would rely on other portions of the S 2.206
_g petitions, including portions of those petitions that allege violations of technical specifications.
Since Intervenor knew of the other allegations in the S 2.206 Petition at the time it filed the contention, we conclude that it included by reference on1.r those portions of the S 2.206 petition that were releva nt to its discus-sions of its contention in its Amended Petition.
It volun-tarily excluded the non-discussed matters from the scope of its petition.
Hence, those non-discussed matters may not be included in this proceeding at this time.6 Intervenor is not precluded from moving to add addi-tional matters as bases to its contention, but the ground for this motion must be that the additional matters are l
relevant and newly discovered.
We derive this principle from Pacific Gas and Electric Cornoany (Diablo Canyon Nuclear l
l Power Plant, Units 1 and 2), LBP-93-1, 37 NRC 5 at 20-21 j
(1993),
which
- rtated, with citation to appropriate 1
l authority:
j l
1 l
We note that, in proving its claim, [ Inter-l venor) will not be limited to the specific
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incidents relied on to admit its contention.
As j
i set forth in the Statement of Consideration for the revised contention rule, l
'At the conclusion of Phase I of this proceeding, we will have compiled a record and we will be responsible for deciding whether that record is adequate or whether we should require that it be expanded in order to make it adequate.
At that time, we may consider whether further allegations in the S 2.206 petition should ta included in this case.
1*
l l [The contention] requirement does not call upon the intervenor to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinion, be it one fact or opinion or many, of which it is aware at that noint in time l
which provide the basis for its contention.
54 Fed. Reg. at 33,170 (emphasis supplied [in Diablo]).
Incidents such as those that MFP attempted to read into the record at the prehearing conference may be acceptable, as long as they are material to l
the implementation of the surveillance and main-l tenance programs.
To the extent that MFP is asked
[
to do so, however, it must identify prior to hear-l ing all of the incidents on which it intends to l
rely in advancing and going forward with its con-l tention.
1 1
I III.
Relevance of CLI-93-15 Intervenor's Response, at 5, footnote 3, relies on CLI-l 93-15, 3 8 NRC (July 16, 1993), as having determined that all the issues in the S 2.206 petition are properly before l
this Board.
Our review of the Commission's decision does not support this view.
Instead, we prefer the following view, found in the Staff Response, pp.
8-9, footnote 5:
The Commission in Georaia Power Co. (Vogtle l
Electric Generating Plant, Units 1 & 2), CLI '
15, 3 8 NRC (July 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. at 3):
Moreover, we recognize here that Mr. Mosbaugh has not invoked section 2.206 to avoid pending adjudication and that his section 2.206 petition seeks relief with respect to issues and facilities i
l that are not before the Licensing Board in the pending transfer proceeding.
1 I
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. l We note, in addition, that on the same page of the com-mission's decision, it notes an " overlap and similarity of some issues between the S 2.206 petition and the transfer case"
[ emphasis added]
pending before us.
This is consistent with the position we are taking in this Memorandum and Order.7 IV.
ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is this 24th day of September, 1993, ORDERED, that:
1 1.
Mr. Allen Mosbaugh, Intervenor, included by refer-ence in his Amended Petitions only those portions of his prior S 2.206 petitions that were relevant to his discussions of his contention in his Amended Petition.
2.
Matters that were not discussed in the Amended Petition, except by reference to Intervenor's prior S 2.206 petitions, shall not be considered to have been I
'We note GPC's Motion to Certify a Question, but that Motion is moot.
We would have denied that Motion because of the procedural nature of our challenged action if we had been required to reach that Motion on the merits.
See Staff Response at 9-10.
aAmendments to Petition to Intervene and Request for Hearing, December 9, 1992.
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l raised in the Amended Petition and shall not be in-cluded in Phase 1 of this proceeding.'
l FOR THE ATOMIC SAFETY AND LICENSING BOARD i
0 L
4 James H.
Carpenter
../ Administrative Judge j
u Tliomas D. Murphy V
Administrative Judge
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, -,{ ?l- _ _
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Peter B. Bloch Chair Bethesda, Maryland l
Ne continue to urge the parties to conclude stipula-tions that will streamline the proceeding or to reach a negotiated settlement.
In our opinion, such agreements should be easier to reach than the agreement between the Palestinians and Israelis.
i l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of GEORGIA POWER COMPANY, ET AL.
Docket No.(s) 50-424/425-0LA-3 (Vogtle Electric Generating Plant, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB M & 0 (LBP-93-21) DTD 9/24 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.
Office of Comission 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 Comission Washington, DC 20555 Administrative Judge Administrative Judge Thomas D. Murphy James H. Carpenter Atomic Safety and Licensing Board 933 Green Point Drive, Oyster Point U.S. Necle ar Regulatory Comission Sunset Beach, NC 28468 Washingtc DC 20555 Mitzi A. Young, Esq.
John Lamberski, Esq.
Office of the General Counsel Counsel for Georgia Power Company U.S. Nuclear Regulatory Comission 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.
j 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
)
i
t Docket No.(s)50-424/425-OLA-3 LB M & 0 (LBP-93-21) DTD 9/24 C. K.
McCoy V. President Nuclear, Vogtle Project Georgia Power Company Post Office Box 1295 Birmingham, AL 35201 Dated at Rockville, Md. this
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27 day of September 1993
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