ML20076K112

Gap Response to Board 940920 Request.* Gap Concludes That Staff Position Correct & Commissioners Should Be Exempt from Having to Identify Documents Considered in Decision to Issue 940509 Nov.W/Certificate of Svc & Svc List

ML20076K112
Person / Time
Site:	Vogtle
Issue date:	10/11/1994
From:	Joiner J GEORGIA POWER CO., TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA
To:	Atomic Safety and Licensing Board Panel
References
CON-#494-15802 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9410270169
Download: ML20076K112 (10)

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/ fiffd)ll' DOCKETED l October 11, 1994 l l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIG% DCT 12 r 5 :26 Before the Atomic Safety and Licensino Board 0FFICE [7 d'KTi RY 00CKEilNG c ' R #f

) BR MiCH In the Matter of ) Docket Nos. 50-424-OLA-3 .

) 50-425-OLA-3 l GEORGIA POWER COMPANY, )

et al. ) Re: License Amendment

) (Transfer to Southern (Vogtle Electric Generating ) Nuclear) l Plant, Units 1 and 2) )  !

) ASLBP No. 93-671-01-OLA-3 l

GEORGIA POWER COMPANY'S RESPONSE TO THE BOARD'S SEPTEMBER 20, 1994 REOUEST Georgia Power Company (" Georgia Power") hereby provides its i

response to the Licensing Board's request in its Memorandum and Order (Request for Extension of Time), dated September 20, 1994.

That Order asked Georgia Power to respond to the NRC Staff's claim of an absolute privilege concerning what factual information is relied on by the Commission in reaching its determinations. Order at 2.

I. BACKGROUND.

The Board's Memorandum and Order (Staff Responses to Intervenor's First Request for Admissions, Second Set of Interrogatories), LBP-94-26, 40 N.R.C. __ (1994) ruled that:

Intervenor should be provided with any document or portion of a document that has not already been disclosed and that contains segregable factual information that was considered by any person (including Commissioners and their 9410270169 941013

{DR ADOCK 05000424 PDR l$;'3

staffs) in deciding whether or not i to issue the NOV.

LBP-94-26, Slip. Op. at 12, 15. The Board's Order.further  !

required that all responses to LBP-94-26 be filed so that they are received on September 22, 1994. Id. at 16.

On September 16, 1994 the NRC Staff filed a Motion for l Extension of Time to Respond to Discovery Ordered in LBP-94-26

(" Staff Motion"). The Staff requested, among other things, that l the time for it to file an amended response to Intervenor's l l )

Second Interrogatories be extended to October 14, 1994. The 1 Staff Motion stated:

[B]y October 14, 1994, the Staff could only identify what factual / opinion documents it provided to the commission -- not

! what factual information the  ;

j Commission considered. Beyond l this, there can be no discovery of  !

l the Commissioners. Egg Consumer Powers Co. (Midland Plant, Units 1 and 2), ALAB-634, 13 NRC 96, 100-01 (1981) (in amending the discovery rules in connection with the Commission staff, the Commission considered whether to allow any exceptions to the reach of a licensing board's discovery subpoena power in exceptional i circumstances and chose to exempt themselves).

Staff Motion at 5.

II. DISCUSSION.

In Midland, ALAB-634, 13 N.R.C. 96, supra, the Appeal Board considered whether senior NRC Staff division director was

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required to attend a deposition pursuant to the requirements of l 10 C.F.R. S 2.720(h). In holding that there was no exemption from such requirements for a senior Staff division director, the l

Appeal Board concluded that the commissioners had only exempted i

themselves from the requirements of 10 C.F.R. S 2.720(h). 13 N.R.C. at 101. It follows from the Appeal Board's analysis that the Commissioners also exempted themselves from having to respond to written interrogatories since the provisions of 10 C.F.R. 1

5 2.720(h), at subsection (2) (11) , also govern written

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interrogatories to be answered by NRC personnel.

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However, the Commissioners did not exempt themselves from j i the regulations which govern production of NRC records and documents. 10 C.F.R. S 2.720(h) (3) states that "[r]ecords or i

documents in the custody of the Commissioners and NRC personnel are available for inspection and copying or photographing l

pursuant to SS 2.744 and 2.790."

Unlike the provisions of 10 C.F.R. S 2.720(h), the provisions of 10 C.F.R. S 2.744 do not draw a distinction between discovery against the NRC Commissioners versus other NRC personnel. Under Section 2.744(b), the NRC Executive Director of Operations ("EDO") can object to a request for production of NRC records or documentsF on the grounds that (1) it is not F The NRC's definition of "NRC' records and documents" does not distinguish between documents in the possession of the NRC Staff and those in the possession of the Commissioners. "NRC records and documents" are defined as any book, paper, map, photograph, brochure, punch card, relevant, or (2) it is exempt from disclosure under S 2.790 and the disclosure is not necessary to a proper decision in the proceeding or the document or the information therein is reasonably obtainable from another source. 10 C.F.R. S 2.744 (b) .

If the EDO objects to a request for the production of documents, the requesting party may apply to presiding officer to compel production. 10 C.F.R. S 2.744(c). The presiding officer is to order the EDO to produce the requested documents if he determines that they are relevant and their production is not exempt from disclosure under S 2.790 or that, if exempt, their disclosure is 1

necessary to a proper decision in the proceeding, and the document or the information therein is not reasonably obtainable from another source. 10 C.F.R. S 2.744(d).

The Staff apparently takes the position that Intervenor's  ;

request for documents which were " considered" by the Commissioners in deciding whether to issue the NOV is a written )

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magnetic tape, paper tape, sound recording, pamphlet, slide motion picture, or other documentary material regardless of form or characteristics, made by, in the possession of, or under the control of the NRC pursuant to Federal law or in connection with the transaction of public business as evidence of NRC organization, functions, policies, decisions, procedures, operations, programs or other activities. "NRC records and documents" do not include objects or articles such as structures, furniture, tangible exhibits or models, or vehicles and equipment.

10 C.F.R. S 2.4.

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1 interrogatory governed by the provisions of 10 C.F.R.

l j $ 2.720(h).F While the NRC Staff does not set forth its reasoning, Georgia Power assumes that it so concludes because an inquiry of each Commissioner would be required to determine j whether he or she in fact considered a document in reaching a 1

decision. Under this analysis, Georgia Power concludes the Staff

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is correct in asserting that Commissioners are exempt from such 1

} provisions. Egg Midland, supra, 13.N.R.C. at 101.

On the other hand, if Intervenor's request for documents

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" considered" by the Commissioners is treated purely as a request i ,

for the production of NRC records and documents in the custody of the Commissioners, then the provisions of 10 C.F.R. S 2.744 i

apply. In this case, the Staff could not object to the request j

l on the grounds that the Commissioners are exempt from having to respond to the request.F i

Therefore, as Georgia Power views it, this issue boils down

I to whether Intervenor's request is treated as an interrogatory, i subject to the provisions of 10 C.F.R. S 2.720(h), or purely as a i

l F Apparently, the Staff does not object to the production of i documents which the Staff "provided to" the Commissioners to assist 1 them in their deliberations. Staff Motion at 5. Georgia Power

interprets the provisions of 10 C.F.R. S 2.744 as applying to the j documents which were "provided to" the Commissioners.

i j F Georgia Power concludes the Staff has abandoned any objection to the production of the documents " considered" by the j; Commissioners which may be grounded in the deliberative process i exemption. In addition to not asserting the objection, the Staff l is willing to produce the documents which it "provided to" the Commissioners, which documents presumably envelope the documents i which the Commissioners " considered."

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request for the production of NRC records and documents, subject only to the provisions of 10 C.F.R. S 2.744. In answering this l

question, Georgia Power observes that Intervenor styled his request as an " interrogatory." Further, the policy considerations underlying the Commission's decision to exempt the Commissioners from 10 C.F.R. S 2.720(h) suggest that Intervenor's i

request for' documents " considered" by the Commissioners should be treated as an interrogatory subject to the provisions of 10 C.F.R. S 2.720(h).

In promulgating the provisions of 10 C.F.R. S 2.720(h) relative to the attendance and testimony of NRC (then AEC) j l

personnel in adjudicatory proceedings, the Commission stated:

The procedure and criteria established seek to accommodate the public interest in having participation by appropriate AEC personnel in resolving matters in issue in an adjulicatory proceeding with a parallel public interest in maintaining the efficient and expeditious conduct of this and other agency functions.

35 Fed. Reg. 19500 (December 23, 1970). In exempting themselves from the requirements of 10 C.F.R. S 2.720(h), the Commission apparently concluded that the efficient and expeditious conduct of the commissioners responsibilities outweighed the public interest in having the Commissioners participate in resolving matters at issue in an adjudicatory proceeding. It follows that the Commissioners should be exempt from discovery requests which require the Commissioners themselves to resolve matters in an adjudicatory proceeding.

Finally, because the NRC Staff has agreed to produce the

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documents which it "provided to" the Commissioners, Georgia Power believes that Intervenor's request for documents " considered" by the Commissioners becomes purely a matter of having the individual Commissioners identify which of these documents they, in fact, considered in their deliberations.F III. CONCLUSION.

For the foregoing reasons, Georgia Power concludes that the NRC Staff's position is correct and the Commissioners should be exempt, pursuant to the provisions of 10 C.F.R. S 2.720(h), from having to identify which of the documents provided to them by the NRC Staff were " considered" by the Commissioners in reaching a decision to issue the May 9, 1994 Notice of Violation to Georgia Power.

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F Georgia Power would not reach this conclusion if the documents considered by the Commissioners include documents which are D21 among the documents "provided to" the Commissioners.

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1 Respectfully submitted, l

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} j amet E. Joiner ' l John Lamberski j TROUTMAN SANDERS l l

600 Peachtree Street, NE l Suite 5200 l Atlanta, GA 30308-2216 (404) 885 3360 Ernest L. Blake, Jr.

David R. Lewis l l

l SHAW PITTMAN POTTS & TROWBRIDGE l 2300 N Street, N.W. )

Washington, D.C. 20037 )

(202) 663 8000 counsel for Georgia Power Company I

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Dated: October 11, 1994 j i

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DOCKETED .

UNITED STATES OF AMERICA USN8C NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina Board 94 OCT 12 PS :26

) 0FFiCF ^ U ? O '

N In the Matter of ) Docket Nos. 50-424%SNE3 ~-

g 50-425-OLA-3

)

GEORGIA POWER COMPANY, )

et al. ) Re: License Amendment

) (Transfer to Southern (Vogtle Electric Generating ) Nuclear)

Plant, Units 1 and 2) )

) ASLBP No. 93-671-01-OLA-3 CERTIFICATE OF SERVICE I hereby certify that copies of " Georgia Power Company's Response to the Board's September 20, 1994 Request," dated October 11, 1994, were served by deposit with an express mail delivery service upon the persons listed on the attached service list, this lith day of October, 94.

- a J Uambentiki  ;

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t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY A"O LICENSING BOARD In the Matter of GEORGIA POWER COMPANY,

• Docket Nos. 50-424-OLA-3 et Al.

• 50-425-OLA-3 9

(Vogtle Electric

• Re: License Amendment Generating Plant, * (Transfer to Southern Units 1 and 2)

• Nuclear)

• '.SLBP No. 93-671-01-OLA-3

, JE LIST Administrative Judge Stewart D. Ebneter Peter B. Bloch, Chairman Regional Administrator Atomic Safety and Licensing USNRC, Region II Board 101 Marietta Street, NW U.S. Nuclear Regulatory Su% ' 2900 Commission At.,m , Georgia 30303 Two White Flint North 11545 Rockville Pike Office of the Secretary Rockville, MD 20852 U.S. Nuclear Regulatory Commission Administrative Judge Washington, D. C. 20555 James H. Carpenter ATTN: Docketing and Atomic Safety and Licensing Services Branch Board 933 Green Point Drive r" "les Barth, Esq.

Oyster Point 1 ' i Young, Esq.

Sunset Beach, NC 28468 Ot;1ce of General Counsel One White Flint North Administrative Judge Stop 15B18 Thomas D. Murphy U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D. C. 20555 U.S. Nuclear Regulatory Commission Director, Two White Flint North Environmental Protection 11545 Rockville Pike Division Rockville, MD 20852 Department of Natural Resources Michael D. Kohn, Esq. 205 Butler Street, S.E.

Kohn, Kohn & Colapinto, P.C. Suite 1252 517 Florida Avenue, N.W. Atlanta, Georgia 30334 Washington, D.C. 20001 Office of Commission Appellate Adjudication Gee White Flint North 11555 Rockville Pike Rockville, MD 20852