ML20093F917

Georgia Power Co Position on Effect of DOL Case 90 ERA-30.* Recommends Board Should Refrain from Considering or Giving Any Effect to Secretary of Labor Determination in 90 EAR-30. W/Certificate of Svc

ML20093F917
Person / Time
Site:	Vogtle
Issue date:	10/13/1995
From:	Doris Lewis GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#495-17209 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9510180207
Download: ML20093F917 (8)

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A 00CKETED October 13, WifjRC

- UNITED STATES OF AMERICA 7 OCT 16 A9 :57 NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Board 0FFICE OF SECRETARY DOCKETING & SERVICE BRANCH In the Matter of ) Docket Nos. 50-424 0LA-3

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

et al ) Re: License Amendment

) (Transfer to Southern Nuclear)

(Vogtle Electric Generating Plant, )

Units I and 2) ) ASLBP No. 93-671-01-OLA-3 GEORGIA POWER COMPANY'S POSITION ON THE EFFECT OF DEPARTMENT OF LABOR CASE NO. 90-ERA-30 Pursuant to the Board's October 3,1995 Memorandum and Order (Effect of Department of Labor Case No. 90-ERA-30), Georgia Power Company (" Georgia Power") hereby submits this position concerning the effect, if any, on this case of the August 4,1995, decision and re-mand order of the Secretary of Labor in Department of Labor (DOL) Case No. 90-ERA-30. Be-cause the issue of discrimination raised in DOL Case No. 90 ERA-30 was never included in the 1

contentions pleaded in this proceeding, it is outside the scope of this case, and consequently I should not be considered by the Board in this matter. Moreover, the complaint of discrimination involved in 90 ERA-30 is still in dispute and will be appealed by Georgia Power Company.

Consequently, it would be inappropriate to give any effect in this proceeding to the Secretary of Labor's determination.

9510180207 951013 PDR ADOCK 05000424 Q PDR

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Background

On September 25,1995, the NRC Staffissued Board Notification 95-16, informing the Board that on August 4,1995 the Secretary of Labor issued a Decision and Remand Order in DOL Case No. 90-ERA-30. The Board Notification indicated that

[t]he Secretary found that senior GPC managers discriminated against one of their employees, Mr. Marvin Hobby. This is an ap-parent violation of 10 CFR 50.7, Employee Protection, which pro-hibits discrimination against an employee for engaging in protected activities.

Board Notification 95-16 at 1. The Staff also noted that "[o]n September 1,1995, the NRC Staff issued a letter to GPC informing them that this issue is being considered for escalated enforce-ment action and that there would be a predecisional enforcement conference in the NRC Region 11 offices in Atlanta, Georgia . . . ." Id. On October 3,1995, the Board issued its Memorandum and Order (Effect of Department of Labor Case No. 90-ERA-30) giving the parties to this pro-ceeding an opportunity to file briefs concerning the effect, if any, on this case of the Secretary of Labor's August 4,1995 decision and remand order in DOL Case No. 90-ERA-30.

, Discussion j The Issues Involved in DOL Case No. 90-ERA-30 Have Not Been Raised Before the Licensing Board Here 4

i The Secretary of Labor's Decision and Remand Order in 90-ERA-30 should have no ef-fect on these proceedings. At issue in the DOL case were allegations by Marvin Hobby, former

[ General Manager of Georgia Power's Nuclear Operations Contract Administration (NOCA), that his job had been eliminated because he purportedly had engaged in protected activity. Secretary

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of Labor's Decision and Remand Order, DOL Case No. 90-ERA-30 at 5-6.

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This allegation has never been a part of this proceeding. Indeed, even when Mr. Hobby i

was still a co petitioner in this matter with Mr. Mosbaugh, before the Board denied Mr. Hobby standing to intervene, neither Intervenor nor Mr. Hobby made any attempt to raise the alleged discrimination as a contention in this matter. Sec Petition to Intervene and Request for Hearing of Allen L. Mosbaugh and Marvin B. Hobby (October 22,1992); Memorandum and Order (Pre-i hearing Conference; Filing Schedule), LBP-92-32 (November 17,1992) (denying Mr. Hobby I standing to intervene)u. In short, both Mr. Hobby and Intervenor were aware of the Department

- of Labor complaint and decided not to introduce this subject matter into controversy as a basis for the contention. Because Intervenor knew about and failed to raise this matter as a basis for i

l his contention, Mr. Hobby's Department of Labor complaint is beyond the scope of the admitted issues in this proceeding. As the Board ruled in its Memorandum and Order (Georgia Power Motion to Reconsider Scope of Proceeding), dated September 24,1993, Intervenor has voluntar-4 4 l

ily excluded allegations that were not specifically discussed in his Amended Petition in this pro- 1 l ceeding. LBP-93-21,38 N.R.C.143,148 (1993). In this Memorandum and Order, the Board ruled that Intervenor had incorporated into his Amended Petition by reference only those por-tions of his section 2.206 petition which "were relevant to (Intervenor's) discussions of his con-tention in his Amended Petition." Id, at 150.

Attempts to Raise a New Issue Now Would Be Untimely The Board's September 24,1993 Memorandum and Order does not preclude Intervenor from moving to add additional matters as bases for his contentions, but requires a demonstration U The Board's Memorandum and Order (Prehearing Conference; Filing Schedule), an unpublished decision, may have been numbered incorrectly, as there exists another, published decision with the same number (Ohio Edison Co.

(Perry Nuclear Power Plant, Unit 1), LBP 92 32,36 N.R.C. 269 (1992)).

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S l that the additional matters are relevant and newly discovered. Here, such a showing is not possi-l 4

ble. First, Intervenor has known of the Department of Labor complaint since it was filed and yet l- has never sought to introduce the subject matter into this proceeding. Even after the Secretary of 4

Labor issued its Decision and Remand Order, now over two months ago, Intervenor has taken no

action to raise this matter. Given Intervenor's inaction and the current posture of this NRC pro-

.,l ceeding now nearing completion, it would be unreasonable to inject a whole new issue into the j case at this very late date.

DOL Case No. 90-ER A-30 Is Still Being Contested i Finally, even if the issues in 90-ER A-30 and this proceeding were identical -- as, dis-1 i

cussed above, they are not -- it would be premature for the Board to give any effect to 90-ERA-30, for it is still being contested by Georgia Power, and the Secretary's decision may not J

be the final determination in the matter. The Secretary of Labor's decision is not yet final agency f action; until completion of the remanded proceeding, it is not a final order and not yet subject to 1

1 judicial review. Carolina Power & Light Co. v. U.S. Deo't of Labor,43 F.3d 912,915 (4th Cir.  !

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. 1995); Sun Shipbuilding & Dry Dock Co. v. Benefits Review Board,535 F.2d. 758,760 (3d Cir.

1976); Washington Metronolitan Area Transit Auth. v. Office of Workers' Comnensation Pro-1.

} gmms,824 F.2d 94,95-6 (D.C. Cir.1987). See generally Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737,744 (1976) (judgments have never been considered final where assessments of l damages or awarding of other relief remains to be resolved).

When a final order is issued after the remanded proceeding, Georgia Power fully intends i

i to pursue an appeal upon judicial review. The Secretary's decision in effect reversed administra-tive lawjudge determinations as to credibility, a matter recognized to be wholly within the 4

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, province of the trier-of-fact who views the presentation of the evidence first-hand. Georgia Power believes its arguments are meritorious and will prevail on appeal.

= Accordingly, because the Secretary's decision and remand order in 90-ERA-30 is not fi-nal (and the allegation it considered is not identical to the specific issues raised in this proceed-ing), it would be inappropriate for the Board to give any effect to the Secretary's decision in 90-ERA-30.

Conclusion For all the above reasons, the Board should refrain from considering or giving any effect to the Secretary of Labor's determination in 90-ERA-30. In the event Intervenor moves to raise i

the subject matter of 90-ERA-30 as a new contention in this proceeding Georgia Power reserves  !

1 its right to respond to the specific arguments that Intervenor might advance.

Respectfully submitted, I 1

M 'Pb n m,ch Ernest L. Blake,'Jr.'

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

Washington, D.C. 20037 (202) 663-8000 James E. Joiner John Lamberski TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E. I Atlanta, Georgia 30308-2216 (404) 885-3360 ,

l Dated: October 13,1995 l

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1 00CKETED l October .3OUNRC '

UNITED STATES OF AMERICA .

NUCLEAR REGULATORY COMMISSION  % DCT 16 A9:57  !

l Before the Atomic Safety and Licensing Board 0FFICE OF SECRETARY 00CKETING & SERVICE BRANCH in the Matter of ) Docket Nos. 50-424-OLA-3

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

et al. ) Re: License Amendment

) (Transfer to Southern Nuclear)

(Vogtle Electric Generating Plant, )

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

CERTIFICATE OF SERVICE I hereby certify that copies of" Georgia Power Company's Position on the Effect of Department of Labor Case No. 90-ERA-30" dated October 13,1995, were served upon the 1

persons listed on the attached service list by deposit in the U.S. Mail, first class, postage prepaid, l 4

or where indicated by an asterisk by hand delivery, this 13th day of October,1995.  !

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David R. Lewis Counsel for Georgia Power Company 1 i

i 194594 01 / DOCSDC1 4

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board in the Matter of ) Docket Nos. 50-424-OLA-3

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

et al. -) Re: License Amendment

) (Transfer to Southern Nuclear)

(Vogtle Electric Generating Plant, )

Units I and 2) ) ASLBP No. 93-671-01-OLA-3 SERVICE LIST

• Administrative Judge Administrative Judge 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 Oyster Point Rockville, MD 20852 Sunset Beach, N.C. 28468

• Administrative Judge Stewart D. Ebneter James H. Carpenter Regional Administrator, Region 11 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Two White Flint North 101 Marietta Street, N.W., Suite 2900 11545 Rockville Pike Atlanta, Georgia 30303 Rockville, MD 20852

• Administrative Judge Office of the Secretary ,

Thomas D. Murphy Att'n: Docketing and Service Branch Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Two White Flint North Washington, D.C. 20555 11545 Rockville Pike Rockville, MD 20852 Michael D. Kohn, Esq. Oflice 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

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• Mitzi A. Young, Esq. Carolyn F. Evans, Esq.

• Charles Barth, Esq. U.S. Nuclear Regulatory Commission

• John T. Hull, Esq. 101 Marietta Street, N.W., Suite 2900 U.S Nuclear Regulatory Commission Atlanta, Georgia 30323-0199 Office of the General Counsel One White Flint North, Stop 15818 11555 Rockville Pike Rockville,MD 20852 Adjudicatory File Director, Atomic Safety and Licensing Board Environmental Protection Division U.S. Nuclear Regulatory Commission Department of Natural Resources Washington, D.C. 20555 205 Butler Street, S.E., Suite 1252 Atlanta, Georgia 30334 226781 01 / D0CSDCL 1

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