ML20064N809

Intervenor Motion to Strike NRC Staff Motion for Stay of Licensing Board Order Releasing Ofc of Investigations Rept.* W/Certificate of Svc

ML20064N809
Person / Time
Site:	Vogtle
Issue date:	03/15/1994
From:	Kohn M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
CON-#194-14807 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9403300137
Download: ML20064N809 (6)

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) x ys f-In the Matter of ) 'N ', J '

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GEORGIA POWER COMPANY ) 50-425-OLA-3 91 Ala., )

) Re: License Amendment (Vogtle Electric Generating ) (transfer to Southern Nuclear)

Plant, Unit 1 and Unit 2) )

) ASLBP No. 93-671-01-OLA-3 INTERVENOR'S MOTION TO STRIKE NRC STAFF MOTION FOR A STAY OF THE LICENSING BOARD ORDJa_ERkE1LSING THE OFFICE OF INVESTIGATIONS REPORT Michael D. Kohn Attorney for the Intervenor i

March 15, 1994 l

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

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In the Matter of )

) Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY ) 50-425-OLA-3 et al., )

) Ret License Amendment (Vogtle Electric Generating ) (transfer to Southern Nuclear)

Plant, Unit 1 and Unit 2) )

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INTERVENOR'S MOTION TO STRIKE NRC STAFF'S MOTION FOR A STAY OF THE LICENSING BOARD ORDER RELEASING THE OFFICE OF INVESTIGATIONS REPORT INTRODUCTION Comes Now Intervenor, Allen L. Mosbaugh, and moves that the Nuclear Regulatory Commission strike NRC Staff's Motion For A Stay Of The Licensing Board Order Releasing The Office Of Investigations Report. Intervonor believes NRC Staff's motion should be immediately stricken as it seeks extra-judicial relief not available to any party to this proceeding.

FACTB on March 3, 1994 the Licensing Board ordered the Staff to (1) promptly release to Georgia Power and Allen Mosbaugh all of the easy-to-separate factual information that is contained in the Office information that is contained in the Office of Investigation's Report in Case No. 2-90-020R and that is not inextricably intertwined with privileged material and (2) release the remainder of the Office of Investigations Report on April 4, 1994, subject to protective order. LBP-94-06, 39 NRC (March 3, 1994). On March 14, 1994 NRC Staff filed a motion for a stay

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of this Order with the Commission.

DISCUSSION I. The'NRC Staff could have brought their application for a stay before the Atomic Safety and Licensing Appeal Board but failed to do so and, as such, the request for a stay should be stricken.

The Regulations clearly state that "an application to the Commission for a stay of a decision by the ASLB will be denied if a stay, was not, but could have been, sought before the Appeal Board." 10 C.F.R. 52.788 (f) . The NRC Staff had 10 days from the service of the Board's Order in which to file an application for a stay. 10 C.F.R. 92.788(a). They failed to file an application for a stay with the ASLB within this time period. Hence, the Commission must deny the NRC Staff motion for a stay because NRC Staff could have, but did not, file the motion with the Board.

II. The NRC Staff did not petition for reconsideration of the March 3, 1994 decision.

A party may only file an application for to stay the effectiveness of a decision pending the filing of an appeal of the decision. 10 C.F.R. 52.788(a). As stated above, a petition i

for reconsideration of a final decision must be filed within 10 days after the decision. 10 C.F.R. 52.771(a). The NRC Staff did not file an appeal of the March 3, 1994 ASLB Order.1 Accordingly, NRC Staff is not entitled to a stay of the

' On page 8 of the NRC Staff's motion for a stay the Staff cites to 10 C.F.R. 5 2.788 (e) (1) and asserts that under this-provision NRC Staff is likely to succeed on the merits.

Intervenor interprets this section to refer to the likelihood of ,

success on the merits of an poneal. Since NRC Staff has not filed an appeal, its chances of success are nonexistent.

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effectiveness of the decision because there is no appeal pending and the time limit to file one has expired.

CONCLUSION For the above stated reasons Intervenor respectfully requests the Commission to immediately strike the NRC Staff's motion for a stay of the March 3, 1994 Order. However, should the Commission not strike NRC Staff's motion for a stay, Intervenor request the opportunity to file a responsive brief.

Respectfully submitted, 7

Michael D. Kohn Kohn, Kohn & Colapinto, P.C.

517 Florida Ave., N.W.

Washington, D.C. 20001 (202) 234-4663 Attorneys for the Intervenor March 15, 1994 3

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UNITED STATES OF AMERICA /

NUCLEAR REGULATORY COMMISSION 00C" F ATOMIC SAFETY AND LICENSING BOARD f [

- gpn 1819 m p_EFORE THE COMMISSION cocKETING & 5I' M .,S sa mosDRAt40H ,

./ s,s SEcy t4RO i

) /gA i In the Matter of ) UN - l

) Docket Nos. 50-424-0Ik Q_ d ,

CEORGIA POWER COMPANY ) 50-425-OLA-3 gi 31 , )

) Re: License Amendment j (Vogtle Electric Generating ) (transfer to Southern Nuclear)

Plant, Unit 1 and Unit 2) )

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l CERTIFICATE OF BERVICE l I

I hereby certify that on March 15, 1994 Intervenor's Information and Brief concerning Motion for Protective Order was  !

served by first class mail upon the following: l Administrative Judge Peter B. Bloch, Chair Atomic Safety and Licensing Board l U.S. Nuclear Regulatory Commission Washington, D.C. 20555  ;

Administrative Judge l 933 Green Point Drive 1 Oyster Point ]

Sunset Beach, NC 28468  !

I Administrative Judge I Thomas D. Murphy l Atomic Safety and Licensing Board )

U.S. Nuclear Regulatory Commission '

Washington, D.C. 20555 i I

Charles A. Barth, Esq.  :

Office of General Counsel I U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

John Lamberski, Esq. ,

i Troutman Sanders Suite 5200 I 600 Peachtree Street, N.E. j Atlanta, GA 30308-2216 )

(continued on next page]

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I l

Ernest L. Blake,~Jr.

David'R. Lewis SIIAW , PITTMAN, POTTS &

TROWBRIDGE 2300 N Street, N.W.

Washington, D.C. 20037

• Office of the Secretary (* Original and two copies)

Attn: Docketing and Service U.S. Nuclear Regulatory Commission Washington, D.C. 20555 office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

A8'? / /! Michael D. Kohn KOlIN , KOllN & COLAPINTO, P.C.

517 Florida Ave., N.W.

Washington, D.C. 20001 (202) 234-4:i63 P

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