ML20059L976
| ML20059L976 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 11/08/1993 |
| From: | Lamberski J GEORGIA POWER CO., TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20059L979 | List: |
| References | |
| CON-#493-14461 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9311180050 | |
| Download: ML20059L976 (24) | |
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s-d." C November 8, 1993 I
'93 N0? -9 lill 21 i
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Board j
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In the Matter of
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Docket Nos. 50-424-OLA-3
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50-425-OLA-3 1
GEORGIA POWER COMPANY,
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l et al.
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Re: License Amendment i
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(Transfer to Southern (Vogtle Electric Generating
)
Nuclear)
Plant, Units 1 and 2)
)
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ASLBP No. 93-671-01-OLA-3 J
GEORGIA POWER COMPANY'S RESPONSE TO NRC STAFF MOTION FOR A FURTHER EXTENSION i
OF TIME TO DEFER DISCOVERY DOCUMENTS TO THE LICENSEE f
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I.
INTRODUCTION.
l Georgia Power Company ("GPC") strongly opposes the NRC Staff l
Motion for a Further Extension of Time to Defer Discovery Documents l
l to the Licensee, dated October 27,.1993 ("Staf f 's Motion"). Having
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previously received a generous 75-day deferral, the Staff's Motion l
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requests, on categorical and conclusory grounds, that discovery be
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delayed an additional 128 days, which would essentially stay this proceeding until next Spring.
Moreover, the extension is not I
limited to the period required for the few remaining interviews of GPC or Southern Nuclear employees (4 of which were completed on l
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November 3 and the remainder of which are expected to be completed l
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by November 12),
but instead seeks to delay release of the i
I requested documents until final decisions are made on enforcement.
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9311180050 931108 g,0 )
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PDR ADOCK 05000424 4
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a GPC opposes the Staff's Motion on the grounds that (1) the length of the delay is unreasonable, (2) the Staff has failed to show how its investigation will be prejudiced by producing the specific documents requested by GPC, and (3) the Staff's justifica-tion for the delay is outweighed by the harm to GPC caused by further delay and GPC's interest in a timely resolution of this m
't-3 proceeding.
GPC has purposely kept its discovery request focused 1
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on a narrow set of documents -- the tapes and statements by Mr. Mosbaugh.
It is incomprehensible how GPC's access to these documents could in any way adversely impact the NRC's review of OI's investigation or its decision on enforcement.
II. B1CKGROUND.
On May 3,
- 1993, GPC filed Georgia Power Company's First Request for Production of Documents by the NRC Staff.
Following unsuccessful attempts to reach an agreement with the Staff concerning document production, GPC's Motion to Ccmpel was filed requesting that the Staff produce a limited set of documents: (1) i 44 tapes provided by Intervenor to NRC, (2) transcripts of such tapes, and (3) certain documents evidencing statements made by Intervenor to NRC.1/
The NRC Staf f '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.
1/
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 Motion to Compel. '
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The Board's Memorandum and Order (Motion to Compel Production of Documents by the NRC Staf f), dated August 31, 1993 (the " Board's Order"), deferred for 75 days Georgia Power Company'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 9
November 8,
1993, the first working day after the 75th day, the i.
[GPC] Motion shall be granted, unless the Staff has earlier filed a show-cause notion.
Such a notion 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 the door open to the possibility that there will be additional Staff requests for delay.
1 The Staff asserts that its requested delay is necessary due to the need for additional efforts by the Office of Investigations l
("OI"),
including additional interviews, which are expected to be completed by December 17, 1993.
Staf f 's Motion, Af fidavit of James Lieberman at 2.
The Staf f '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 naterial gathered by OI, and to determine whether enforcement action is warranted." Staf f 's Motion at 3.
"[B]arring unforeseen circumstances, the Executive Director for Operations would forward his decision regarding possible enforcement action 1
_ 3 _
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to the Commission by February 18, 1993
[ sic],
for Commission t
action."
Lieberman Affidavit at 2.
l Mr.
Lieberman also states that "OI Office retains the 1
I responsibility to again refer this matter to [the Department of Justice] if, after completion, the investigation reveals evidence J
of a willful violation of certain NRC regulations. The possibility i
s of further review by the Department of Justice may further delay
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review [by the Office of Enforcement]."
Id. at 3.
-l The Staff takes the position that "[t]he requested documents i
should not be released until the Commission completes its review 3
and a determination is made whether to initiate an enforcement action."
Staff's Motion at 3.
The Staff's new schedule is a e
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"present best estimate schedule based on the review and planning efforts of the Staff which are pr oceeding with all deliberate speed."
J_d.
3 The history of the changes to the Staff's schedule for the i
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investigation and enforcement activities is worth recounting:
1.
In mid-1990, following the receipt of allegations from i
Mr. Mosbaugh that GPC officials had made material false statements to the NRC Staff, an OI investigation was 1
initiated.
2.
In October, 1991, the NRC informed a Department of Labor
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Administrative Law Judge, who was hearing a complaint i
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filed by Mr. Mosbaugh, that the NRC "was making every effort to conclude" its investigation "as quickly as possible."
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3.
In late 1991 or early 1992, OI referred the case to the Department of Justice
("DOJ"), which, in March, 1993, i
referred the matter back to NRC to be " pursued ad-ministratively."
During the DOJ review, OI inves-l tigators were assigned as special agents to the U.S.
I Attorney's Office in Atlanta.
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4.
On March 8,
1993, the Staff filed with the Board an 5
I affidavit of Mr. Ben Hayes, Director of OI, which stated:
"I believe these [DOJ and OI) investigations and review of the allegations can be completed within four to six i
months."
NRC Staff's Response to Licensing Board Memorandum and Order ( Admitting a Party), Hayes Af fidavit at 3.
5.
In April, 1993, the Staff informed the Licensing Board i
that the investigation was expected to be completed within the next several months, but-stated that "the date of completion of the investigation cannot be predicted, f
as it is unknown where matters uncovered in the inves-tigation will lead. " NRC Staff Response to the Licensing l
i Board Questions Regarding Schedule and Discovery, dated
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I April 13, 1993, at 5.
6.
On August 26, 1993, the Staff filed another affidavit signed by Mr. Hayes which stated: " Based on the current status, I believe this [OI) review can be completed l
within two months."
i I a 5
1
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i 7.
On October 21, 1993, counsel for the Staff contacted r
counsel for GPC to solicit GPC's reaction to an NRC l
i request to delay the production of documents until 4
December 17, 1993.
This date was said to include
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a sufficient t.ne for NRC Staff review, EDO approval and, if necessary, Commission approval.
l 8.
On October 25,
- 1993, counsel for the Staff 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 f
requesting a delay until March 15, 1994.
5 III. ANALYSIS.
I I
A.
NRC has Failed to Show how its Investigation will be Pre-iudiced by Release of the Reauested Documents to GPC.
1 i
The Staff does not dispute GPC's right to receive the i
documents requested by GPC's Motion to Compel.
It only requests j
that the Board further defer its order compelling production.
The Staff asserts that, with respect to its further request for delay, i
"[t]he law is not in dispute."
Staff's Motion at 2 n.5.
Contrary J
to this assertion, GPC submits that documents may not be withheld i
without a particularized and supported showing demonstrating that
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the release would interfere with an investigation or enforcement.
l See GPC's Motion to Compel at 13-17.
Given that the documents are essential to a proper decision in this case and are not available from another source, and given that the Staff's complete failure to demonstrate how release could interfere with the its respon-3
sibilities, the documents should be immediately produced.
GPC's l
Motion to Compel at 1-2, 8-9.
GPC has endeavored to accommodate the Staff's investigatory l
concerns by limiting its document request to a narrow set of documents, which GPC believes could not possibly interfere with any
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investigation, and by previously expressing willingness to wait until the OI interviews were complete.
All of OI's interviews of GPC or Southern Nuclear employees, however, are scheduled to be completed by November 12, 1993.
GPC cannot understand, and the i
Staf f has not demonstrated, how release of the requested documents would interfere with the Staff's review of the record or the l
enforcement decision.
At this point, delays are no longer i
justifiable or conscionable.
The Staff does not support its motion with any specification that release of the tapes or of Mr. Mosbaugh's statements would interfere with its investigation or enforcement action.
- Instead, it offers only vague generalizations which in large measure are not applicable to the documents in question.
For example, Mr. Lieberman's Affidavit states, at 5 4 :
l Disclosure of the identity of persons interviewed in the course of the OI investigations and statements obtained from l
these individuals, and disclosure of those persons yet to be l
interviewed, as well as documents obtained during the course of the investigation would reveal to the possible subjects of the ongoing investigation, possible inspections and the scope of the evidence gathered by OI and being reviewed by the staff enforcement team.
The release of such information could compromise investigation activities, particularly before the information is completely evaluated for possible enforcement i
action.
f None of the documents requested by GPC (44 tape recordings
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made by Mr. Mosbaugh-associated transcripts, and statements made
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t by Mr. Mosbaugh) would disclose the identity of'any person inter-t viewed except Mr. Mosbaugh.
None of the documents would disclose j
r persons yet to be interviewed.
As to the scope and subjects of j
i OI's investigation, that information is already known.
Moreover, the statement above only asserts that release could compromise " investigative activities."
There is no explanation
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how release could affect the Staff's subsequent review of the investigation.
And even with respect to the claim that investiga-tion activities could be compromised, the Staff's assertion is f atally vague and unsupported.
Since all interviews of GPC or i
Southern Nuclear employees should be completed by November 12, i
there is no apparent way release of the documents could interfere i
with the essentially complete investigation.
.g In sum, no explanation has been given as to why disclosure of l
any one of these tapes and other documents will prejudice any of I
the NRC's responsibilities.
As for Mosbaugh's statements, most of the written allegations which he submitted to NRC have already been j
produced to GPC by Intervenor.
Indeed, Intervenor has allegedly l
l produced all documents in his possession, other than privileged l
documents, which are relevant to this proceeding.
Prior to making l
such production, Intervenor inquired of the NRC Staff and was informed that the Staff had no objection to such production.
Letter from Charles A. Barth, Esq. to Michael D. Kohn, Esq., dated j
June 28, 1993.
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E The Staff seems to take an arbitrary and inflexible position 9
that, as to any documents which were collected by OT during its I
investigation, it is the Staff's and/or OI's polley that those documents are subject to non-disclosure until the investigation-and j
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enforcement activities are completed.
However, faced with GPC's Motion to Compel, the Staff has been unable to particularize any t
reasonable justification for withholding the specific documents GPC has requested.
1 i
B.
NRC's Interests are Outweiched by GPC's Interests.
Application of the four-factor test cited in the Board's Order / to the Staff's latest request demonstrates that the NRC 2
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Staff's justification for delay is outweighed by the harm to GPC and GPC's right to a timely resolution of this proceeding.
We note that the Commission has held that "'none of 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 Corporation, CLI-93-17, __ N. R. C. _ ( August 19, 1993) auctina United States v.
Eicht Thousand Eloht Hundred and Fif ty Dollars in United States Currency, 461 U.S. 555, 565 (1983).
1 Il "'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 aucting Pipino Specialists Inc.,
un-published opinion of March 18, 1992. l
1.
Length of the Delay.
The Staf f's requested delay of an additional 128 days must be supported by a reasonably compelling justification since it comes on the heels of the 75-day delay granted by the Board's Order.
t Oncolouv Services, CLI-93-17, suora.
The length of the delay requested by the Staff is unreasonable given the remaining efforts necessary by OI to complete its j
investigation.
Indeed, prior to being contacted by Staff's counsel l
on October 21, 1993 and accepting the assertions of the Staff's previous
- filings, GPC was under che impression that the OI investigation was drawing to a close.
At the time of filing of the i
Staff's Motion, GPC understood only six CI interviews of GPC or i
Southern Nuclear employees remained. Four of those interviews were o
completed on November 3,
1993.
Those interviews were brief and i
I limited to one or two narrow issues, in the nature of follow-up i
i questions, and they were not transcribed (unlike each of the other interviews OI has conducted in this case).
The remaining two of 3
those interviews are likewise expected to be brief and narrow in scope, and they are scheduled to be completed prior to November 12, i
1993.
As discussed herein, following completion of those inter-i views, no reasonable basis, nor compelling justification, has been r
provided by the Staff for withholding the requested documents. The j
i Staf f has failed to demonstrate how, following completion of those l
OI interviews, its investigation will be prejudiced by release of tapes made in 1990 or statements made by Intervenor.
j i
I f
f i
2 i l
l The events giving rise to the OI investigation occurred in April of 1990 and Intervenor's allegations were submitted to OI beginning in June, 1990.
As discussed infra, GPC's ability to mount an effective defense has already been prejudiced by the excessive passage of time in this case.
The Staff has not made a credible showing that the further delay requested is necessary to complete the OI investigation.
2.
Reason for the Delay.
The Staff's reasons for requesting this additional delay in the production of documents include:
The original documentation gathered by OI is more voluminous than realized at first and the [ Staff's] joint review is taking longer than initially anticipated.
Documents and explanations provided by GPC to OI on October 7,
1993, and the Staff's evaluation of the investigation to l
date have necessitated further interviews and analysis by OI
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in order to complete the investigation.
i i
Staff's Motion at 3.
GPC is mystified as to how the NRC Staff t
could have realized only after the Board's Order was issued that the documentation gathered by OI was voluminous.
This is not a reasonable justification.
a.
Further efforts by OI.
There is no merit to the Staff's assertion that a further delay is justified because additional documentation and explanat-ions, supplied by GPC on October 7,
1993, require further OI efforts.
The documentation provided to OI on October 7th is not voluminous and it is not new to OI.
All of the historic documenta-I tion had been previously provided to DOJ and the OI investigators I
assigned to the DOJ review (who are also conducting the on-going OI investigation).
Much of the documentation was collected or generated by the NRC Augmented Inspection Team and the Incident Investigation Team which visited Plant Vogtle shortly after the March 20, 1990 site area emergency.
GPC's October 7,
1993 presentation, in the main, simply highlighted facts and documents provided to DOJ and OI in late 1992.
GPC acknowledges that a small portion of those documents and explanations may have necessitated further OI review, which should have begun immediately after October 7, 1993.
Such additional effort cannot reasonably justify the lengthy extension beyond November 8, 1993 which the Staff has requested.
b.
The Staff's joint review.
The Staff asserts that the requested delay is further justified because of a joint review being conducted by the NRC's i
Office of Enforcement, Office of General Counsel and Office of Nuclear Reactor Regulation "to evaluate and analyze the material gathered by 01...."
Staff's Motion at 3.
The Staff's best l
estimate for submitting a decision on enforcement action to the j
Commission is February 18, 1994, Id.
While the Staff's Motion requests a delay until March 15, 1994, the attached affidavit of Mr.
Lieberman requests that " investigatory materials collected during [OI's) ongoing investigation be withheld from disclosure at least until after February 18, 1994."
Lieberman Affidavit at 3.
This inconsistency is not surprising given that the prior Staff filings had never indicated that discovery should be deferred i
during the time the Commission would be reviewing the Staff's recommendation concerning enforcement.
GPC understands that release of investigatory documents prior to completion of OI interviews, could, in certain circumstances, i
l compromise an on-going investigation (and GPC has been willing to i
accommodate such a concern). However, GPC does not understand how, t
following completion of interviews of GPC or Southern. Nuclear employees by November 12, 1993, the S'Aff's internal evaluation of~
the investigation findings and the Commission's review thereof could be compromised, or affected in any material way, by the release of the requested documents to GPC.
Staff would have the I
Board merge the OI investigation with the Staff's review of OI's report and with the Commission's review of the Staff's recommenda-tion.
Such a merger is not consistent with the NRC's Rules of Practice or the Commission's decision in Oncoloav Services, CLI-93-17, supra, i
1 3.
Harm to GPC.
Further delay beyond November 8,
1993 in producing the requested documents to GPC effectively stays the entire proceeding.
j l
Such a stay of the proceeding is injurious to GPC's interests in a number of ways, as detailed in the affidavit of Mr.
W.
George Hairston, III, GPC's Executive Vice President - Nuclear Operations, j
attached hereto.
In particular, public perception and employee morale are adversely af fected by NRC's continued withholding of the license amendments on the basis of contrived allegations regarding 1 I
the character and integrity of the companies' management.
The longer it takes to remove the stigma created by such concerns, the greater the chance that the companies' standings in their respec-tive communities and in the industry will be adversely affected.
i Of course, it is difficult to maintain good employee morale in the face of lingering NRC concerns which are based on such serious allegations lodged by a former employee.
Although it cannot be
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quantified, the importance of good employee morale cannot be 7
j overstated.
- Also, until the license amendments are granted, mubstantial management attention is required to maintain the I
F appropriate separation of the two companies (GPC and Southern
)
Nuclear) who are responsible for operating the Southern system's i
nuclear plants (Hatch, Vogtle and Farley).
Additional administra-tive costs are also being incurred to maintain duplicate staffs to perform certain administrative services.
P Furthermore, GPC's ability to mount an effective defense will 3
be further prejudiced by the passage of another four months.
The i
i recollection of GPC employees as well as NRC witnesses is already l
J diminished due to the significant passage of time since the event i
under investigation occurred.
Even though there are tape record-f ings of conversations which occurred in 1990, in some cases, it may be difficult for GPC personnel to recollect the circumstances of f
i those conversations.
Further delays in this case will exacerbate the difficulty the Company will experience in defending itself in I
1994 against allegations that false statements were made to NRC in i
f April, 1990.
! i
P t
- Moreover, further delay in the issuance of the license amendments will delay the realization of the benefits of the consolidation, including, for example:
a.
a single-purpose organization dedicated colely to exce-l 11ence in nuclear power plant operations, undistracted by the demands of other electric utility operations;
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b.
consistency in personnel policies resulting in cost savings and efficiencies; c.
the ability to attract and retain nuclear professionals by offering them an opportunity to 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 through f
recognition by the nuclear community of its respon-l l
sibility as the exclusive operator of three nuclear power
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i plants.
1 4.
GPC's Right to a Timely Resolution of this Proceeding.
I The Board's Order, at 1,
recognized, and GPC reaffirms, its desire to have this case adjudicated in a timely manner.
The Board also cautioned the Staff that " prior to the 75th' day, it 1
should, if necessary, make a fresh showing concerning why documents l
should not be released.
The parties to this adjudication are
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4 entitled to a swift resolution of their differences."
Board's
.I Order at 6-7.
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-i GPC submits that the Staff has not made a credible showing j
that its investigation is proceeding expeditiously.
Indeed, D2 l
i delay beyond November 12, 1993 has been justified since the OI I
interviews of GPC and Southern Nuclear employees should be completed by that date.
GPC's right to a timely decision on its license amendment application should not be subject to unreasonable
[
i and unjustifiable delay which is the result of arbitrary Staff i
preferences concerning the release of documents.
It is unfair to further subject GPC to delays in the resolution of serious allegations about its management given the lack of a reasonably compelling justification for the Staff's requested delay.
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i 5.
Balancing of interests.
l GPC submits that a balancing of the interests of the Staff l
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against those of GPC results in a decision in favor of disclosure j
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of the requested documents to GPC.
The Staff has not shown a 1
6
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reasonably compelling justification for the requested delay.
In I
particular, the delay requested by the Staff is unreasonable given i
I l
the OI interviews of GPC or Southern Nuclear employees should be a
4 completed by November 12, 1993.
Additionally, the Staff has failed 4
to demonstrate how, following completion of those OI interviews, l
its investigation will be prejudiced by the release to GPC of the l
requested tapes and Mr. Mosbaugh's statements.
On the other hand, l
i the harm to GPC as a result of the delay is real and significant j
and GPC asserts its right to a timely resolution of this proceed-j ing.
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i IV. CONCLUSION, For the reasons stated above, GPC respectfully requests that l
the Board deny the Staff's Motion.
In the alternative, GPC requests that the Board order the Staff to release all requested documents no later than November 12, 1993, the date when all OI interviews of GPC or Southern Nuclear employees is scheduled to be i
I completed.
.pec 11 s
e tte y
W W //
u 6hn'Lambefski"~
TROUTMAN SANDERS Suite 5200 i
600 Peachtree Street, N.E.
I Atlanta, GA 30308-2216 (404) 885-3360 I
Ernest L.
Blake David R.
Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.
i Washington, D.C.
20337 (202) 663-8084 Counsel for Georgia Power Company 4
4 Dated:
November 8, 1993 i
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