ML20116A493

Georgia Power Company Motion for Reconsideration of 960628 Memorandum & Order Or,In Alternative,For Certification.* Gpc Requests That Board Not Require Submittal or Approval of Settlement Between Gpc & Mosbaugh.W/Certificate of Svc

ML20116A493
Person / Time
Site:	Vogtle
Issue date:	07/15/1996
From:	Blake E SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#396-17785 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9607260116
Download: ML20116A493 (11)

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6 00CKETED USNRC July 16,1996 UNITED STATES OF AMERICA *% JUL 16 P3 :58 ]

l NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETARY Before the Atomic Safety and Licensing BoaMCKETING & SER'/!CE

, BRMCH i

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

) 50-425-OLA-3 ,

GEORGIA POWER COMPANY, ) ]

etal. ) Re: License Amendment i

) (Transfer to Southern Nuclear)

(Vogtle Electric Generating Plant, )

Units 1 and 2) ) ASLBP No. 93-671-01-OLA-3  ;

GEORGIA POWER COMPANY'S' MOTION FOR l RECONSIDERATION OF JUNE 28,1996 MEMORANDUM AND ORDER l OR IN THE ALTERNATIVE FOR CERTIFICATION l L Introduction i I

i Georgia Power Company (" Georgia Power") hereby moves for reconsideration of a lim- I ited aspect of the Board's Memorandum and Order (Request for Deferral of Decision), dated June 28,1996 (" Memorandum and Order"). Specifically, Georgia Power asks the Board to reconsider  !

the Memorandum and Order to the extent it contemplates disclosure and approval of any settle-ment agreement reached between Georgia Power and Mr. Mosbaugh. Georgia Power submits that no review or approval of the settlement agreement by the '30ard is required. Rather, upon

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Mr. Mosbaugh's voluntary withdrawal of his interventie ; in this proceeding, the proceeding will automatically terminate.

9607260116 960715 PDR ADOCK 05009424 0 -

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In the event that the Licensing Board declines to reconsider its Memorandum and Order, l

Georgia Power moves the Licensing Board to certify the questions raised to the Commission.

Georgia Power believes that the requirement for review and approval by the Board of the settle-l mer.i agreement is inconsistent with NRC regulations and precedents, would irreparably injure both Georgia Power and Mr. Mosbaugh by precluding them from settling their disptttes upon mu-tually agreeable and confidential terms, and would affect the basic structure of this proceeding in a pervasive manner by preventing its expeditious termination and discouraging settlement.

Georgia Power has discussed this motion with counsel for Intervenor and counsel for the NRC Staff, both of whom wish to consider adding their written views on this matter. Intervenor has requested fifteen days in which to file its position. Georgia Power has no objection to this request.

II. The Board Should Reconsider its Memorandum and Order ,

Mr. Mosbaugh and Georgia Power contemplate concluding a written settlement prior to July 31. As part of the agreement, Intervenor will voluntarily withdraw his intervention and con-tentions in this proceeding, so that the proceeding terminates without a decision. Intervenor and i

Georgia Power also contemplate that their settlement agreement will remain confidential and need not be reviewed by the Licensing Board.E If these expectations are not met, settlement may not occur.

E Georgia Power is willing to assure the Board that nothing in the settlement agreement will prohibit, restrict or otherwise discourage Mr. Mosbaugh from panicipating in protected activity under section 211 of the Energy Reor-I ganization Act or reporting any nuclear safety concern or any suspected improper activity to the NRC or any other j federal or state governmental agency.

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i The Licensing Board's Memorandum and Order appears inconsistent with these expecta-tions. Adopting discussion of the NRC Staff, the Board states that "in the absence of review of the agreement itself, the [ Board) . . . is unable to express any views on whether the settlement is in the public interest." The Memorandum and Order further states that "Before we approve the settlement, the parties shall tell us their agreement and address the specific facts of this case." R, citing Randall C. Orem. D.O. CLI-93-14,37 N.R.C. 423 (1993).

NRC regulations do not require either the review or approval of settlement agreements in i

licensing proceedings. The NRC's Rules of Practice, at 10 C.F.R. { 2.759, encourage settlement

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and contain no requirement that a Licensing Board review and approve a settlement agreement. l Similarly, the NRC's Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8,13 N.R.C. 452,455,456 (1981), encourages settlement without any requirement for Licensing Board approval of such agreements. In fact, the Policy Statement specifically states that while Li-censing Boards should encourage and monitor settlement efforts, they should not become directly involved in the negotiations. E at 455.

NRC precedents also do not require the review or approval of settlement agreements in licensing proceedings. In Public Service Co. of Colorado (Fort St. Vrain Independent Spent Fuel Storage Installation), 34 N.R.C.190 (1990), the Commission held that where the sole intervenor withdrew pursuant to a settlement agreement, the withdrawal brought the proceedir.g .0 a close.

The Commission expressed no requirement for either review or approval of the settlement agree-ment. Further, as a general rule, any dismissal or withdrawal of the sole intervenor in a licensing proceeding ends that proceeding. Florida Power & Liaht Co. (Turkey Point Nuclear Generating 3

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Plant, Units 3 and 4), CLI-91-13,34 N.R.C.185,188 and n.1 (1991); Houston Lighting &

Power Co. (South Texas Project, Units 1 and 2), ALAB-799,21 N.R.C. 360,382 (1985).  ;

This procedure has been followed by Licensing Boards. In Arizona Public Service Co.

(Palo Verde Nuclear Generating Station, Units 1,2 and 3), LBP-91-37A,34 N.R.C.199 (1991),

i where parties agreed to settlement, the Licensing Board held:  !

i-i Since the settlement is founded on the voluntaty withdrawal of the Intervenors' only contention, there is nothing for this Board to ap- j prove or disapprove. Terminating the proceeding is a ministerial ,

act in that the withdrawal of the Intervenors brings the proceeding l to a close.

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t hL at 200, citing Turkey Point, supra, CLI-91-13,34 N.R.C. at 188 n.l. Accord Sacramento J Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-94-23; 40 N.R.C. 81 (1994); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),

4 LBP-91-08A,33 N.R.C. 210 (1991); Pacific Gas & Electric Co. (Humboldt Bay Power Plant, Unit No. 3), LBP-88-4,27 N.R.C 236,238-39 (1988); Eublic Service Electric & Gas Co. (Hope Creek Generating Station), LBP-85-6A,21 N.R.C. 468 (1985); Rochester Gas & Electric Coro.

(R.E. Ginna Nuclear Plant, Unit No.1), LBP-84-34,20 N.R.C. 769 (1984).2 1 l

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4 E There have been a few licensing proceedings where Licensing Boards have approved settlement agreements, 4 but these predate the Commission's guidance in Fort St. Vrain. spIg, and are for the most part also factually dis-tinguishable. _Sg Philadelohia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-89-24,30 N RC.

152 (1989) (parties requested the Licensing Board to accept a settlement agreement); Combustion Engineering.

Ingn (Hematite Fuel Fabrication Facility), LBP-89-31, 30 N.RC. 320 (1989) (Licensing Board facilitated a settle-ment during a prehearing conference); Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), LBP-85-26,22 N.R.C.118 (1985); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-83-20,17 N RC. 580 (1983) (panies requested the Licensing Board to accept a settlement agreement); Flor-ida Power & Light Co. (St. Lucie Plant, Unit No. 2), LBP-82-21,15 N.R.C. 639 (1982) (a Licensing Board re-4 viewed a settlement agreement in an antitrust proceeding while acknowledging " apparent lack ofjurisdiction.")

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6 The Orem decision cited in the June 28,1996 Memorandum and Order is inapposite. That case was an enforcement proceeding subject to special procedures set forth in Subpart B to 10 l

C.F.R. Part 2. In particular,10 C.F.R. j 2.203 requires that in an enforcement proceeding (iA a -  !

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proceeding to modify, suspend or revoke a license, or to take other action agamst a person such  !

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as the imposition of a civil penalty), any stipulation for the settlement of the proceeding "shall be j J

subject to approval by the designated presiding officer , ,. " It further provides l

The presiding officer . . . may order such adjudication of the issues as he may deem to be required in the public interest to dispose of -

the proceeding. If approved, the terms of the settlement or com-promise shall be embodied in a decision or order settling and dis-continuing the proceeding.  !

10 C.F.R. 2.203.

. These requirements in section 2.203 are specific to enforcement proceedings and do not apply to other types of proceeding. The review that occurred in the Orem enforcement case is therefore neither pertinent to this licensing proceeding nor controlling. Moreover, the absence of 1

this settlement-approval procedure in section 2.759 (the section applicable to licensing proceed- l l

ings) indicates that the Commission does not intend or require a similar procedure in licensing proceedings.L' The provision for Licensing Board approval of settlement agreements only in en-forcement proceedings precludes by implication such review in other types of proceeding.

Accordingly, Georgia Power respectfully submits that the portion of the Board's Memo-i randum and Order calling for review of a settlement agreement between Georgia Power and Mr.

E Georgia Power notes that Administrative Law Judge Ivan Smith was the chairman of the Licensing Board in both the Qram enforcement proceeding in which a settlement agreement was approved and the Palo Verde licens- ,

ing proceeding holding that there is nothing to approve when the sole intervenor withdraws pursuant to settlement.

That the samejudge rendered both decisions underscores the distinction between the two proceedings.

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i Mosbaugh is inconsistent with NRC practice and procedures and should be reconsidered. Review  !

l of settlement agreements is not required and would in fact discourage settlement and the expedi-

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tious resolution of adjudications.

IH. In the Alternative. the Board Should Certify This Matter to the Commission In the event that the Licensing Board declines to reconsider its June 28,1996 Memoran-dum and Order, Georgia Power moves the Licensing Board to certify, pursuant to 10 C.F.R. l 2.718(i) and 2.786(g), the following question to the Commission for its determination:

Should a Licensing Board require the submittal and approval of a settlement agreement in proceedings where the sole intervenor  ;

withdraws his intervention?

Further, Georgia Power asks that the Licensing Board hold in abeyance any decision until the l Commission has the opportunity to consider this matter.

Georgia Power submits that certification of this question is appropriate under 10 C.F.R. 2.786(g). The Board's mlings threaten both Georgia Power and Allen Mosbaugh with an immedi-ate and serious irreparable impact. Unless interlocutory review is granted, Georgia Power and Mr. Mosbaugh would be precluded from settling their differences on mutually agreeable terms, )

i which include the confidentiality of their settlement agreement. This would prevent settlement  !

from occurring and lead to further unnecessary litigation. Such litigation would continue to delay l issuance of the license amendment that has been sought to consolidate authority and expertise in i Southern Nuclear.

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This impact cannot be alleviated through a petition for review of the Licensing Board's fi- l i

l nal decision in this proceeding. If the confidentiality of the settlement agreement will not be main- 1 tained, there will be no settlement.

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Certification is also appropriate because the Board's rulings affect the basic structure of this proceeding in a pervasive manner. By precluding settlement between the parties on mutually i

agreeable and confidential terms, the Board's order would prevent the expeditious completion of l

these proceedings.

In addition to satisfying the standards for certification set fonh in 10 C.F.R. 2.786(g),

Commission review is appropriate under 10 C.F ' . 2.786(b)(4). Georgia Power respectfully submits that the Board's rulings are inconsistent with NRC rules and precedents, constitute a 1

prejudicial procedural error, and raise a substantial and important question oflaw.

IV. Reauest for Extension to Respond to the Board's Memorandum and Order The Memorandum and Order currently requires Georgia Power and Intervenor to inform the Board, by July 31,1996, why it is in the public interest that the Board not issue its opinion de-l cicang this case. Because the Board's decision on this motion for reconsideration could affect the positions of the parties (or even moot the question asked by the Board) but may not be rendered by July 31, Georgia Power requests that the Board modify the Memorandum and Order to permit the panies to defer their response to the Memorandum and Order until five days after a decision on the instant maion, or July 31, whichever is later.

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• 1 V. Conclusion For all of the reasons stated above, Georgia Power submits that the Licensing Board should not require submittal or approval of the settlement agreement between Georgia Power and Mr. Mosbaugh. Georgia Power requests that the Licensing Board reconsider its June 28,1996 Memorandum and Order accordingly or certify the question set forth above to the Commission.

Respectfully submitted, l

QtA47 Ernest L. Blake David R. Lewis 1

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

Washington, D.C. 20037 (202) 663-8084 James E. Joiner John Lamberski TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E.

Atlanta, GA 30308-2216 (404) 885-3360 Counsel for Georgia Power Company Dated: July 15,1996 8

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l DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION l l

% JUL 16 P3 :58 Before the Atomic Safety and Licensing Board I 0FFICE OF SECRETARY 00CKETING & SERVICE BRANCH '

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

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

etal. ) Re: License Amendment .l

) (Transfer to Southern Nuclear) j (Vogtle Electric Generating Plant, ) t Units 1 and 2) ) .ASLBP No. 93-671-01-OLA-3  !

CERTIFICATE OF SERVICE ,

I hereby certify that copies of" Georgia Power Company's Motion for Reconsideration of June 28,1996 Memorandum and Order or in the Alternative for Certification," dated July 15, i

1996, were served by upon the persons listed on the attached service list by deposit in the U.S.

mail, first class, postage prepaid, or where indicated by an asterisk by hand-delivery, this 15th l 1

l July,1996. l l

David R. Lewis I l

Dated: July 15,1996 4

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UNITED STATES OF AMERICA f NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensine Board i

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

) 50-425-OLA-3 ,

GEORGIA POWER COMPANY, ) {

et al. ) Re: License Amendment  ;

) (Transfer to Southern Nuclear) l (Vogtle Electric Generating Plant, ) {

Units 1 and 2) ) ASLBP No. 93-671-01-OLA-3 [

l SERVICE LIST

• A'dministrative Judge Administrative Judge l Peter B. Bloch, Chairman James H. Carpenter ]

Atomic Safety and Licensing Board Atomic Safety and Licensing Board

]

Two White Flint North 933 Green Point Drive 11545 Rockville Pike Rockville,.MD 20852 Oyster Point Sunset Beach, N.C. 28468

)

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• Administrative Judge

• Administrative Judge Thomas D. Murphy James H. Carpenter ,

Atomic Safety and Licensing Board Atomic Safety and Licensing Board )

. Two White Flint North Two White Flint North  !

11545 Rockville Pike 11545 Rockville Pike Rockville,MD 20852 Rockville,MD 20852

' Adjudicatory File Office of the Secretary Atomic Safety and Licensing Board Att'n. Docketing and Service Branch U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission j Washington, D.C. 20555 Washington, D.C. 20555 j l

• Michael D. Kohn, Esq. Office of Commission Appellate Adjudication Kohn, Kohn & Colapinto U.S. Nuclear Regulatory Commission 517 Florida Avenue, N.W. Washington, D.C. 20555 Washington, D.C. 20001 1

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• Charles Barth, Esq. Stewart D. Ebneter John T. Hull, Esq. Regional Administrator, Region 11 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of the General Counsel 101 Marietta Street, N.W., Suite 2900 One White Flint North, Stop 15B18 Atlanta, Georgia 30303 11555 Rockville Pike Rockville,MD 20852 Carolyn F. Evans, Esq.

Director, U.S. Nuclear Regulatory Commission Environmental Protection Division 101 Marietta Street, N.W., Suite 2900 Department ofNatural Resources Atlanta, Georgia 30323-0199 205 Butler Street, S.E., Suite 1252 Atlanta, Georgia 30334 2367d3-01 / DOCSDC1 1