ML20082C055

Georgia Power Co Position on Allegations Not Raised in Proceeding.* Submits Views in Response to Board Request for Views on Legal Std to Apply in Determining Impact of Listed Allegation on Case.W/Certificate of Svc & Svc List

ML20082C055
Person / Time
Site:	Vogtle
Issue date:	04/03/1995
From:	Lamberski J TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA
To:	Atomic Safety and Licensing Board Panel
References
CON-#295-16570 93-671-OLA-3, OLA-3, NUDOCS 9504060141
Download: ML20082C055 (8)

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f (p*Qp3YO DOCKETED UNITED STATES OF AMERICA USNRC' NUCLEAR REGULATORY COMMISSION 95 tra -41 A10:56 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Ot r {[Effip3[%s'. o 00Cm.

In the Matter of  : Docket Nos. 50424-OLA-3

50-425-OLA-3 GEORGIA POWER COMPANY, a al.

Re: License Amendment (Vogtle Electric Generating Plant,  : (Transfer to Units 1 and 2)  :- Southern Nuclear) .

ASLBP NO. 93-671-OLA 3 -

GEORGIA POWER COMPANY'S POSITION ON ALLEGATIONS NOT RAISED IN THIS PROCEEDING In its Memorandum and Order (Scheduling) of March 7,1995, the Board noted it had 1

just received the latest of several notifications from the NRC Staff that the Staff had " received allegations regarding the character, competence and integrity of GPC and Southern Nuclear management pctsonnel that may be relevant to this case." Expressing concern about the poteatial effect of these allegations, the Board solicited the parties' views on the legal standard it should apply in determining the impact of these matters on the conclusion of this case.

Georgia Power Company herein provides its views in response to the Board's request.

We start with several general observations. First, Georgia Power notes that it is at a severe disadvantage in providing this response, because it may be the only party to this  !

proceeding that does not know the substance of the additional allegations. Georgia Pcwer is therefore unable to address the significance, relevance or admissibility of such allegations.

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.,h Georgia Power submits, however, that it would be profoundly unfair to delay completion of this proceeding on the basis of allegations to which Georgia Power has not been provided an opportunity to respond.

Second, we do not know, of course, the identity of the alleger, but we do know that in the prior instances of allegations being brought to the Board's attention (except one'), the alleger was Intervenor in this proceeding. It is not, therefore, unreasonable for us to presume the pattern continues and, therefore, we will address the issue with this assumption.

Third, at bottom on this issue is the contest between the dual functions a licensing board l performs. On the one hand, the Board sits as a regulatory authority with an ongoing activist I interest in its licensees. 'Ihis leads to sua sponte authority and responsibility, for example. On  !

l ti.e other hand, the Board sits as a judicial body, an arms' length umpire of issues raised m an i 1

ap1 ropriately disciplined way by litigants. In this role, the Board takes an interest only in those isse.s which meet defined standards aad are advanced by one or another party in a timely manne.'

Finally, the Board must take account ofits role within the agency. Licensing boards are l l

appointed to preside over a prescribed set of issues. Their responsibility and authority is not general oversight of NRC licensees, or even the particular licensee before them. The agency as a whole relying in large part on the Staff has the larger, broader oversight role.

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Scc, Board Notification 93-23, November 19, 1993, as supplemented by Board Notification 95 03, February 28,1993.

2 The Board Chairman in another case described these as the Article III liinitations. Scc, Florida Power & Ligi1LCo. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-32, 32 NRC 181,185 (1990).

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In this proceeding, with a contention that is by its nature very broad and could be interpreted to require the Board to consider any blemish or alleged blemish on any one of the approximately 1,100 employees within the Southern companies dedicated to Plant Vogtle in order to reach a comprehensive decision, the Board is confronted very directly with the conflicts between these legal and policy issues. To resolve them, Georgia Power makes the following  ;

suggestions.

All parties to this adjudicatory proceeding, including the NRC Staff, have a duty to disclose to the Board and other parties all new information they acquire which is considered

" material and relevant" to any issue in controversy. Statement of Policy: Investigations.

Insocctions. and Adindicatory Proceeding 49 Fed. Reg. 36032, September 13,1984. This obligation has been referred to as the "McGuire Doctrine" and stems from a long line of precedent dating as far back as 1973. Houston Light and Power Company (South Texas Project, Units 1 and 2) LBP-86-15,23 NRC 595,623 (1986).

When Intervenor in this proceeding decides to raise a concern he makes a choice of forum decision. He may elect to take the issue directly to this Board and ask the Board to accept it as a new contention or new basis for an existing contention. If he does so, the ,

standards for admissibility are quite well known. They may depend on the subject matter of the allegations. If, for example, the allegations relate to the factual basis that was litigated in January (i.e., to the contention that there was an illegal transfer of control or any false statement relating to control), a motion to reopen the record would be required. The standards for reopening a record are set forth at 10 C.F.R.12.734 and require a showing that the motion is timely, addresses a significant issue, and demonstrates that a materially different result would

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likely be reached had the newly proffered evidence been considered. Pacific Gas & Electric l

Cm,-(Diablo Canyon Nuclear Power Plant, Units I and 2), LBP-94-35, 40 N.R.C.180,' 273 -

l (1994). It is, of course, possible that the additional allegations are unrelated to alienation. In such case, the standards for introducing a new issue have been previously articulated by the i Licensing Board. In LBP-93-21,38 N.R.C.143,148 (1993), the Licensing Board ruled that

• - Intervenor had voluntarily excluded from this proceeding matters not discussed in his petition in this proceeding. The Board added that Intervenor is not precluded from moving to add additional matters as bases to his contention, but the ground for this motion must be that the l

additional matters are relevant and newly discovered. Id., Gilmg Pacific Gas & Electric Co. l l

(Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-93-1, 37 N.R.C. 5, 20-21 (1993).

The Board repeated this standard in its July 28,1994 Memorandum and Order. There, the Board held that the test to determine to admit a new issue (within the scope of a previously admitted contention) is whether the motion is timely and whether it presents important information regarding a significant issue. LBP-94-22, 40 N.R.C. 37, 39 (1994), citing Consumers Power Co (Midland Plant, Units 1 and 2), LBP-84-20,19 N.R.C.1285,1296-(1984). Scc algi LBP-94-27, 40 N.R.C.103,105 (1994) (denying motion to accept additional factual basis).

If, on the other hand, the Intervenor opts to take his concern to another part of the agency, such as the Office of Investigations, then he must accept the consequences. When he makes this choice, he initiates a sequence such as that which led to the NRC Staff notification that, in turn, has led to the Board's articulated concern. Under this option, the Board is not dealing with a party's attempt to expand the hearing which it could decide based on the f

, yg-principles outlined above, but rather is facing as a ~ decision whether to expand the hearing by ,

introducing a sua gonic issue. A number of principles regarding sua sponte authority may be applied to assist in answering the Board's concern.

For example, whereas the NRC Staff makes notification to the Board of allegations which may be relevant, the Commission's rules set a much higher threshold for raising these to sua sponte issues. Only those issues where a serious safety, environmental, a common defense and security matter exists will be admitted. San 10 C.F.R. 6 2.760a. That the matter is serious  ;

enough that another area of the agency such as OI is investigating the allegadons does not mean it qualifies as a sua sponte issue. Louisiana Power & Light Company (Waterford Steam Electric System, Unit 3), CLI-86-1, 23 NRC,1, 5-6 (1986). Indeed, that another part of the agency is looking at the allegations may militate against the need for the Board to take on the issue as well. In a case similar to the instant case where an Intervenor continued to alert the NRC of problems or concerns related to the ongoing proceeding, the Commission found that the issues  ;

were being addressed through investigations and oversight by other areas of the NRC and that 1

the Board should not exercise its sua sponte authority, even though the issues were serious. j l

Cincinnati Gas and Electric Company. et al. (Wm. II. Zimmer Nuclear Power Station, Unit No.

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1) CLI-82-20,16 NRC 109,110-11) (1982). As two Commissioners observed in their l Additional Views in that case . . . "the hearing process was never intended to be a continuing open-ended forum for public participation." Id. at 114.

In this proceeding, we urge the Board to apply as the standard for allowing a sua sponte concern, the same standard that it would apply if Intervenor attempted to introduce the concern directly. 'Itus, it must be timely and must comply with this Board's earlier rulings on adding l

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new contentions as bases for an existing contention. Intervenor should not be allowed to profit in this proceeding by raising indirectly through the back door what he opts not to bring directly to the Board.

Respectfully submitted,

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ames E. Joinef John Lamberski TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E.

Atlanta, Georgia 30308-2216 (404) 885-3360 Ernest L. Blake, Jr.

David R. Lewis SHAW PITTMAN POTTS & TROWBRIDGE 2300 N Street, N.W.

Washington, D.C. 20037 (202) 663-8000 Dated: April 3,1995 l

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'3- -'1 UNITED STATES OF AMERICA 00CKEIED USl1RC NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Mcensing Board 0FFICF Ci SECRETARY DOCKETNG i SERVICE

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

) 50425-OLA-3 GEORGIA POWER COMPANY, )

etal.- ) Re: License Amendment l

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

Plant, Units 1 and 2) )

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

l CERTIFICATE OF SERVICE l I hereby certify that copies of Georgia Power Company's Position on Allegations Not Raised in This Proceeding dated April 3,1995, were served on all those listed on the attached service list by express mail delivery or, where indicated with an asterisk, by facsimile this 3rd day of April,1995.

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UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD  !

. In the Matter of .j GEORGIA POWER COMPANY,

• Docket Nos. 50-424-OLA-3 cial.

• 50-425-OLA-3

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

• ASLBP No. 93-671-01-OLA-3 l SERVICE LIST

• Administrative Judge Stewart D. Ebneter Peter B. Bloch, Chairman Regional Administrator Atomic Safety and Licensing Board USNRC, Region II U.S. Nuclear Regulatory Commission Suite 2900 Two White Flint North 101 Marietta Street, N.W. ,

11545 Rockville Pike Atlanta, GA 30303 Rockville, MD 20852

' Administrative Judge James H. Carpenter

• Office of the Secretary  ;

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission  !

( 933 Green Point Drive A*lTN: Docketing and Services Branch i Oyster Point Washington, D.C. 20555 i Sunset Beach, NC 28468

• Administrative Judge Thomas D. Murphy

• Charles Barth, Esq.

Atomic Safety and Licensing Board Mitzi Young, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel l Two White Flint North U.S. Nuclear Regulatory Commission 11545 Rockville Pike One White Flint North l Rockville, MD 20852 Stop 15B18  !

Rockville, MD 20555

• Michael D. Kohn, Esq.

Kohn, Kohn & Colapinto, P.C. Director, Environmental Protection 517 Florida Avenue, N.W. Division Washington, D.C 20001 Department of Natural Resources

.. Suite 1252,205 Butler Street, S.E.

Office of Commission Appellate Atlanta, GA 30334 Adjudication I One White Flint North 11555 Rockville Pike l Rockville, MD 20852 I

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