ML20058D780
| ML20058D780 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 11/17/1993 |
| From: | Bloch P, Carpenter J, Murphy T Atomic Safety and Licensing Board Panel |
| To: | GEORGIA POWER CO., NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| References | |
| CON-#463-14474, CON-#493-14474 93-671-01-OLA-3, 93-671-1-OLA-3, LBP-93-22, OLA-3, NUDOCS 9312060027 | |
| Download: ML20058D780 (19) | |
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'93 l ^' l 6. J.'
7; LBP-93-22 November 17, 1993 l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3 5 R NQy j y jggy ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Peter B.
Bloch, Chair Dr. James H.
Carpenter Thomas D. Murphy i
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)
AGLBP No. 93-671-01-OLA-3 MEMORANDUM AND ORDER (Renewed Motion to Compel Staff Production of Documents)
On August 31, 1993, we issued an unpublished Memorandum and Order that determined that we would not order the pro-duction of documents that Georgia Power Company (GPC) sought from the Staff of the Nuclear Regulatory Commission (Staff).
The Staff wished to withhold specific documents from discov-ery because of its claim that release of the documents would interfere with an ongoing enforcement investigation. On the i
other hand, we considered these materials essential to the adjudication of this case.
Mr. Mosbaugh's [Intervenor's]
petition was filed in October 1992; and we were sympathetic to GPC's desire to get this case tried in a timely manner.
We stated, on August 31, 1993, that we were highly sensitive 9312060027 931137 gDR ADDCK 05000424 "D502-PDR
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-2 to this need, even though GPC had not presented specific factual arguments about the extent to which it is being injured by delay.2 I.
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Introduction:==
and Position of the Parties on May 3, 1993, GPC filed its First Request for Produc-tion of Documents by the NRC Staff.
Following unsuccessful attempts to reach an agreement with the Staff concerning document production, GPC's Motion to Compel was filed re-questing that the Staff produce a limited set of documents:
In Pipino Soecialists Inc.,
unpublished opinion of 2
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 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:
The test is a weighing of four factors: (1) the 16agth 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 of a delay in the civil proceeding.
(Barker v.
Winco, 407 U.S. 514, 530 (1972) 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 Medical Systems, 25 NRC 865, 869-871 (1987).]
Although a stay is not being sought in the instant case, the question may be considered to be analogous: when to require the disclosure of documents alleged to be relevant to an enforcement purpose.
In this section of our opinion, we borrow practically 2
verbatim the accurate discussion in GPC's Motion to Compel NRC Staff Production of Documents, November 8, 1993.
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-3 (1) 44 tapes provided by Intervenor to NRC, (2) transcripts of such tapes, and (3) certain documents evidencing state-ments made by Intervenor to NRC.
The NRC Staff's response requested the Board to defer ruling on GPC's Motion to Compel, representing that a period of 75 days should be sufficient for completion of the Staff's investigation and enforcement review.
The Board's Memorandum and Order (Motion to Compel Production of Documents by the NRC Staff), dated August 31, 1993 (the " Board's Order"), deferred for 75 days GPC's Motion to Compel NRC Staff Production of Documents, dated August 9,
1993
("GPC's Motion to Compel").
The Board ordered that "[o]n Monday November 8,
- 1993, the first working day after the 75th day, the [GPC] 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."
Board *s Order at 7.
Now, shortly before the running of the 75-day period, the Staff asserts that an additional 128-day delay, until March 15, 1994, in the production of the requested documents is necessary.
The Staff's Motion further leaves tr.e door open to the possibility that there will be additional Staff requests for delay.
The Staff asserts that its requested delay is necessary due to the need for additional efforts by the Office of
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-4 Investigations
("OI"),
including additional interviews, which are expected to be completed by December 17, 1993.
1 Staff's Motion, Affidavit of James Lieberman at 2.
The Staff's requested delay also includes the time necessary for the NRC's Office of Enforcement, Office of General Counsel and Office of Nuclear Reactor Regulation "to evaluate and analyze the material gathered by OI, and to determine whether enforcement action is warranted." Staff's Motion at P
3.
"[B]arring unforeseen circumstances, the Executive i
Director for Operations would forward his decision regarding j
possible enforcement action to the Commission by February I
18, 1994, for Commission action." Lieberman Affidavit at 2.
l Mr. Lieberman also states that the "OI Office retains the responsibility to again refer this matter to (the Department of Justice] if, after completion, the investiga-tion reveals evidence of a willful violation of certafn NRC regulations.
The possibility of further review by the Department of Justice may further delay review [by the Office of Enforcement]."
M. at 3.
The Staff takes the position that "[t]he requested documents should not be released until the Commission completes its review and a determination is made whether to initiate an enforcement action."
Staff's Motion at 3.
The Staff's new schedule is a "present best estimate schedule based on the review and planning efforts of the Staff which j
1 are proceeding with all deliberate speed."
M.
4 1 The history of the changes to the Staff's schedule for the investigation and enforcement activities is worth recounting:
1.
In mid-1990, following the receipt of allegations from Mr. Mosbaugh that GPC officials had made material false statements to the NRC Staf f, an OI 1
investigation war, initiated.
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2.
In October,1991, the NRC informed a Department of Labor Administrative Law Judge, who was hearing a complaint filed by Mr. Mosbaugh, that the NRC "was making evrsry effort to conclude" its investigation "as quir.kly as possible."
I 3.
In lata 1991 or early 1992, OI referred the case
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to the Department of Justice ("DOJ"), which, in l
March, 1993, referred the matter back to NRC to be
" pursued administratively."
During the DOJ re-view, OI investigators were assigned as special agents to the U.S. Attorney's Office in Atlanta..
4.
On March 8, 1993, the Staff filed with the Board an affidavit of Mr. Ben Hayes, Director of OI, which stated: "I believe theso [DOJ and OI] inves-tigations and review of the allegations can be completed within four to six months." NRC Staf f 's Response to Licensing Board Memorandum and Order (Admitting a Party), Hayes Affidavit at 3.
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-t t 5.
In April, 1993, the Staff informed the Licensing
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Board that the investigation was expected to be
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completed within the next several months, but stated that "the date of completion of the investigation cannot be predicted, as it is unknown where matters uncovered in the investiga-tion will lead."
NRC Staff Response to the Licen-sing Board Questions Regarding Schedule and Dis-covery, dated April 13, 1993, at 5.
6.
On August 26, 1993, the Staff filed another affi-davit signed by Mr. Hayes which stated: " Based on the current status, I believe this [OI] review can l
t be completed within two months."
7.
On October 21, 1993, counsel for the Staff con-tacted counsel for GPC to solicit GPC's reaction
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to an NRC request to delay the production of docu-ments until December 17, 1993. This date was said to include sufficient time for NRC Staff review, EDO approval
- and, if necessary, Commission approval.
8.
On October 25, 1993, counsel for the Staf f advised counsel for GPC that the Staff would be requesting a delay until January 12, 1994.
9.
On October 27, 1993, the Staff's Motion was filed requesting a calay until March 15, 1994.
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II.
The Legal Standard l
The four-factor test cited in the Board's last
-1 Memorandum and order is still applicable:
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 of a delay in the civil proceeding.
Board's Order at 2, n.1 (auctina Pioina Soecialists Inc., un-l published opinion of March 18, 1992).
Since our Memorandum, the Commission has held that "'none of i
these factors is a necessary or sufficient condition for finding unreasonable delay.
- Rather, these elements are guides in balancing the interests of the claimant and the Government to assess whether the basic due process requirement of fairness has been satisfied in a particular case.'"
Oncoloav Services Corocration, CLI-93-17, 38 N.R.C.
44, 51 (August 19, 1993) auctina United States v.
Eiaht 3
Thousand Eiaht Hundred and Fiftv Dollars in United States currency, 461 U.S.
555, 565 (1983).
We also note that the Commission considers it to be relevant that "the Licensing Board is closely monitoring the status of the NRC investigations to ensure that due diligence is being exercised to bring the investigations to a close. Oncolc3v Services, 38 NRC at 60.
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'The Commission also considers, at p. 57, the " risk of erroneous deprivation," which appears to apply primarily in cases of the immediately effective suspension of a license.
In this case there is no suspension, so we deal with the harn to GPC entirely under the factor covering " prejudice"
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to it.
i i III.
Balancing the Factors i
A.
The Length of the Delay The delay of discovery in this case began in May 1993.
F If we were to grant the Staff's current request, we would delay discovery until March 1993
-a ten month delay in discovery.
However, the Staff's request may-realistically be viewed as open-ended, since it anticipates further review, which may lead to further investigation and to possible enforcement or criminal actions.
On May 3, 1993, GPC filed Georgia Power Company's First Request for Production of Documents by the NRC Staff.
GPC's Motion to Compel was filed August 9, 1993, requesting that the Staff produce a limited set of documents: (1) 44 tapes provided by Intervenor to NRC, (2) transcripts of such tapes, and (3) certain documents evidencing statements made t
by Intervenor to NRC.'
The NRC Staff's response requested the Board to defer ruling on GPC's Motion to Compel, repre-senting that a period of 75 days should be sufficient to complete the Staff's investigation and enforcement review.
We note that the delay in our case also affects the Staff's ability to resolve pending 10 C.F.R.
S 2.206 petitions that date back to September 1990 and that ara being held in abeyance pending the outcome of this proceeding.
Georcia Power Company et al.
(Hatch Nuclear
- There are 12 documents which GPC has requested in the category of Mr. Mosbaugh's statements.
They are identified at pp. 25-26 of GPC's Motica to Compel.
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i Plant, Units 1 & 2; Vogtle Electric Generating Plant, Units 1 & 2), CLI-93-15, 38 NRC 1 at 3 (1993).
f B.
The Reason for the Delay We consider the allegations against GPC to be highly important.
Some of its key officials, who are also key officials of the Southern Nuclear Operating Company (SONOPCO), are accused of intentionally withholding safety information from the Nuclear Regulatory Commission following a site emergency in March 1990.
The allegations are serious enough that, if sustained, they raise questions about the character and competence of SONOPCO to operate a nuclear power plant with adequate safety.
The long history of this case is peppered with assur-ances of Staff that the investigation was soon to be com-pleted.
(See pp.
5-7, above.)
In mid-1990, following the receipt of allegations from Mr. Mosbaugh that GPC officials had made material false statements to the NRC Staff, an OI investigation was initiated.
Then, in October, 1991, the NRC informed a Department of Labor Administrative Law Judge, who was hearing a complaint filed by Mr. Mosbaugh, that the t
NRC "was making every effort to conclude" its investigation "as quickly as possible."
This is the first assurance that-the end was in sight.
It is time to determine these charges.
While a large i
i investigative record has been compiled, the events happened i
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over three years ago.
The question is whether people in-properly withheld information from the Nuclear Regulatory commission.
The longer the delay, the more likely that key witnesses will be lost and recollections will fade.
- Hence, f
live testimony becomes less and less reliable.
The Staff has attempted to explain the reason for this delay.
In the NRC Staff Motion for a Further Extension of I
Time to Defer Discovery Documents to the Licensee. (Staff
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Motion), October 27, 1993, we find the following explana-tions of the slowness of the investigation:
1 1.
The original documentation gathered by OI "is more j
i voluminous than realized at first" (p. 3).
t 2.
The joint review of the Office of Enforcement, the l
t Office of Nuclear Reactor Regulation, Region II and the Office of the General Counsel "is taking longer than initially anticipated" (p. 3).
3.
Further interviews, to be completed by December 17, 1993, have been necessitated.
(P. 3; attached i
affidavit of James Lieberman at 1 3.)
4.
Analysis and an additional decision process that must occur after the further interviews are completed (p. 3).
of these explanations, the least persuasive is that the documents assembled were "more voluminous than believed at first."
This is inexplicable.
While we understand some failure to estimate the time for analyzing _ data and inter-
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a t viewing and re-interviewing witnesses, we see no' logical explanation of how a diligent investigation could reasonably fail to know the volume of the documentation it collected.
Additionally, when estimates of completion of the investiga-tion have been so poor, we expect a more complete explana-
' tion than we have been given. We are not satisfied that the Staff has adequately addressed its reasons for delay, help-ing us to understand its point of view without compromising its investigation.
The size of the record and the need to i
re-interview witnesses are not, without more, an explanation for the slowness of completing this important investigation.
Hence, we are unpersuaded that the Staff has exercised due i
diligence to promptly bring this matter to a close and pre-sent live evidence to a hearing or in the context of a crim-inal charge.
All this time, there is uncertainty affecting both the public's interest in safe operation of a nuclear power plant and GPC's reputation.
Nevertheless, we will also consider Staff's argument 1
that the release of documents will seriously interfere with an important investigation.
In this regard, Staff argues that disclosure of the requested information:
i 1.
Would reveal the possible subjects of the ongoing investigation.
(Lieberman Affidavit at 3, 1 4.)
i 2.
Would reveal "possible inspections and the scope of the evidence."
(Id at 3, S 4.)
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3.
Could compromise investigation activities.
(Id at t
3, 1 4.)
4.
Could affect the outcome of a further criminal i
referral to the Department of Justice (which l
returned one referral to the NRC previously).
We have reviewed these considerations and are unper-i suaded that they justify further delay after the current i
t phase of the investigation is completed on December 17, t
1993.
With Staff's approval, GPC has completed its discov-ery of documents possessed by Allen Mosbaugh.
It also knows which of its own employees have been interviewed, and un-doubtedly has obtained information from them.
In light of all this completed discovery, we do not accept the Staff's vague assertions of how its investigation will be preju-diced.
Nor do we see how any of the arguments can justify i
a March 15, 1994 current request for an extension, with substantial likelihood that further developments would prolong that delay.
l By December 17, 1993, Staff says that all anticipated follow-up interviews should be completed.5 Although another Staff and Commission review could, of course, uncover still i
further reasons for interviews, we lack confidence that the l
continuing need for follow-up on follow-up continues to be productive.
l 5 Staff Motion: Af fidavit of James Lieberman at 2, 13 (October 2,
1993); Affidavit of Roger Fortuna at 2,
13 (October 27, 1993).
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i 6 We also are persuaded by GPC's argument that:
None of the documents requested by GPC (44 tape recordings made by Mr. Mosbaugh, associated transcripts, and statements made by Mr. Mosbaugh) would disclose the identity of any person inter-viewed except Mr. Mosbaugh. None of the documents would disclose persons yet to be interviewed.
As to the scope and subjects of OI's investigation, that information is already known.
We are willing to accommodate the Staff's current plans for investigation, although the balance in favor of per-3 mitting this is tenuous.
In light of the entire record (including arguments discussed below), we are not willing to delay the requested discovery beyond December 17, 1993.
C.
The Applicant's Request for a Prompt Proceeding GPC-has consistently and repeatedly sought a prompt proceeding on its amendment request.
It is being denied a prompt proceeding and it deserves to have an evaluation of the prolonged investigation of it.
D.
The Prejudice to GPC We agree with GPC's characterization of the importance of the sought documents:7 public perception and employee morale are adverse-ly affected by NRC's continued withholding of the j
'GPC ' s Response to NRC Staff Motion for a Further Extension of Time to Defer Discoverv Documents to the
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Licensee (November 8, 1993) at 8._
Id at 13-15, as dotailed in the attached affidavit of
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Mr. W. George Hairston III, GPC's Executive Vice President-
- Nuclear Operations.
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- t license amendments on the basis of contrived alle-gations regarding the-character and. integrity of the companies' management. The longer it takes.to i
remove the stigma' created.by such concerns, the greater the chance that the companies? standings in their respective communities and in theindus-try will be adversely affected.
Of course, it is i
difficult to maintain good employee morale in the face of lingering NRC concerns which are based on such serious allegations lodged by a former em-ployee.
Although it cannot be quantified, the importance of good employee morale cannot be.
overstated.
Also, until the license amendments are granted, substantial management attention is required to maintain the appropriate separation of the two companies-'(GPC and Southern Nuclear)'who
.j are responsible for operating the Southern sys-tem's nuclear plants (Hatch, Vogtle and Farley).
Additional administrative costs are alro being l
incurred to maintain duplicate staffs t.2. perform
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certain administrative services.
-l Furthermore, GPC's ability to mount an effec-j tive defense will be further prejudiced by the passage of another four months.
The recollection-l of GPC employees as well as NRC witnesses is al-ready diminished due to the significant passage of time since the event under investigation occurred.
1 Even though there are tape recordings of conversa-1
.tions which occurred in 1990,. in some cases, it l
may be difficult for-GPC personnel to recollect the circumstances of those conversations. Further' delays in this case will exacerbate the difficulty the Company will experience in defending. itself in 4
1994 against allegations that false statements j
were made to NRC in April,-1990.
l Moreover, further delay in the issuance'of i
the license amendments will delay the. realization i
of the benefits of the consolidation, including, _
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for example:
f (a) a single-purpose organization dedicated solely to excellence in nuclear power plant-operations, undistracted by ' the demands of 'other electric utility operations;
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i (b)- ' consistency in personnel policies resulting. in cost savings and efficiencies; (c) the r_lity to attract and retain nuclear professionals by offering them an opportunity to t
1 build a career within an operating organization responsible for the operation and maintenance of multiple nuclear plants; and (d) an increase in Southern Nuclear's effectiveness l
through recognition by the nuclear community of its responsibility as the exclusive operator of three nuclear power plants.
The documents being sought are extremely in-portant to GPC's defense and preparation for this This proceeding involves very serious alle-case.
gations made by Intervenor against GPC - allega-tions that GPC vigorously disputes.
Intervenor maintains that his allegations are supported by the tape recordings which he transferred to the NRC, and has produced excerpts of his recordings.
Intervenor's excerpts, however, are not complete i
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 are additional statements and discussions showing the importance that GPC places on accurate report-ing and'the efforts that were undertaken to re-solve comments on the April 19, 1990 LER. Accord-ingly, to demonstrate that Intervenor's claims of willful misconduct are baseless, it is critical that GPC have access to the complete tapes.
In-deed, the tapes have already been recognized by the Licensing Board as being " essential evidence a
in this proceeding.
Memorandum and Order (April 21, 1993), LBP-93-8, 37 NRC slip op. at 13..
Intervenor has also provided other statements to the NRC, and 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-volves serious allegations and assertions by a single individual, unfettered access to the indi-j vidual's prior statements is required for a fair l
and complete hearing.
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,- E.
Conclusion We have weighed all the evidence and arguments in our record.
Our prior decision protected Staff's right to con-tinue its investigation.
Our current decision also protects that right until the current round of interviews is com-pleted.
But it is time to limit further delay in this pro-ceeding by giving GPC its day before us.
Its right to that day is substantial.
There is a limit to delay justified by continued and re-continued investigation and " analysis."
r IV.
Provision for Reconsideration We acknowledge that at an earlier point in this pro-ceeding, the Staff offered to make an in camera presentation that would permit us to understand the reason for the con-tinuing delay.
Hence, it is possible that there are factors present in the investigation that could not be disclosed to us.
If, in light of this decision, the Staff concludes that an in camera presentation would tip the balance of the four factors, they may make a showing as part of a motion for reconsideration filed on or before December 3, 1993.
The first showing should be in writing, containing portions for which in camera status is sought.
The Staff may also, for j
good cause shown, request permission to make an oral in camera presentation.
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. V.
ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is this 17th day of November, 1993, ORDERED, that:
1.
Georgia Power Company's Motion to Compel NRC Staff Production of Documents, August 9, 1993 [ Motion),
1 is denied until December 17, 1993.
As of December 18,
- 1993, the Motion is ctranted and the Staff of the Nuclear Regulatory Commission shall produce the docu-ments mentioned in the Motion on that day.
2.
Motions for reconsideration of this Memorandum and Order must be filed and received by us on or before December 3, 1993.
A Staff Motion may contain materials for which in camera status is claimed, as discussed above.
FOR THE ATOMIC SAFETY AND LICENSING BOARD 4N k
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James H. Carpenter Administrative Judge w
Thomas D. Murphy V
Administrative Judge tu (R. 0L/
Peter B.
Bloch Chair Bethesda, Maryland e
i UNITED STATES OF AMERICA 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 I and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB M&O (LBP-93-22) -- 11/17/93 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 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 Thomas D. Murphy James H. Carpenter Atomic Safety and Licensing Board 933 Green Point Drive, Oyster Point U.S. Nuclear Regulatory Commission Sunset Beach, NC 28468 Washington, DC 20555 Mitzi A. Young, Esq.
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
c i
t Docket No.(s)50-424/425-OLA-3 l
LB M&O (LBP-93-22) -- 11/17/93 C. K.
McCoy V. President Nuclear, Vogtle Project r
Georgia Power Company Post Office Box 1295 Birmingham, AL 35201
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Dated at Rockville, Md. this l
18 day of November 1993 h
JA)
Office of the Secretary of the Commission
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