ML20065D546
| ML20065D546 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 03/30/1994 |
| From: | Lamberski J GEORGIA POWER CO., TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#294-14851 LBP-94-6, OLA-3, NUDOCS 9404070128 | |
| Download: ML20065D546 (16) | |
Text
w M TS/ 5 h-Mar D 0, th94 DOCKETED a UNITED STATES OF AMERICA N -
NUCLEAR REGULATORY COMMISSION 2 MAR 3 01994 . T BEFORE THE COMMISSION
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SERVICE BRANCH BECY-NRC .A >
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In the Matter of ) Docket Nos. 50-424-OLA- ,
) 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 GEORGIA POWER COMPANY'S RESPONSE TO NRC STAFF PETITION FOR REVIEW OF LBP-94-6 Arip/OR MOTION FOR DIRECTED CERTIFICATION I. INTRODUCTION Georgia Power Company ("GPC") opposes the NRC Staff Petition for Review of LBP-94-6 and/or Motion for Directed Certification, dated March 24, 1994 (" Staff's Petition"), as it relates to the l 1
easy-to-separate factual information associated with the Office of Investigations ("OI") report on OI Case No. 2-90-020R. As discussed in GPC's Response to NRC Staff Motion for a Stay of the ;
l Licensing Board Order Releasing the Office of Investigations j Report, dated March 21, 1994 ("GPC's Response to Staff's Stay Motion"), the NRC Staff's withholding of this purely factual j l
information is contrary to law and continued delays in its ;
release are prejudicial to GPC. The Staff has provided no I
explanation how the release of interview records would upset the l NRC's deliberative process or inhibit the Commission from reaching an enforcement decision. Obviously it would not.
Furthermore, the Staff's Petition should be denied as it relates-1 l
1 9404070128 940330 PDR ADOCK 05000424 k 0 PDR <1Q
-o to the factual information because it does not meet either of the two standards supplied by 10 C.F.R. S 2.786(g) for certifying questions or referring rulings to the Commission.
)
I II. BACKGROUND l on December 17, 1993, the NRC Office of Investigations l issued its report on the allegation that GPC made false statements to the NRC regarding diesel generator testing l conducted after the March 20, 1990 Site Area Emergency. The NRC Staff has reviewed the report to determine whether enforcement. i 1
action is appropriate and has forwarded its recommendation'to the Commission. Staff's Petition at 5-6. ,
GPC's Response to Staff's Stay Motion recounts the pertinent !
history of this proceeding leading to the Board's March 3, 1994 Memorandum and Order, LBP-94-06.l' Significantly, while l l
I' LBP-94-06 ordered that:
I
- 1. The Staff of the_ Nuclear Regulatory Commission (Staff) I shall promptly release to Georgia Power and Allen L. Mosbaugh 4 all of the easy-to-separateF factual information that is l contained in the Office of Investigation's Report in Case No. I 2-90-020R and that is not inextricably intertwined with' privileged material. ] 1
- 2. On April 4, 1994, the Staff shall release the remainder of the Of fice of Investigation's Report, subject to protective order. ,
- 3. The Staff shall promptly serve .a proposed form of-protective order on the parties and the Board. ,
FS ince the whole report will be released, the Staff .l should review it and release portions that they can )
reasonably determine to be factual,- without extensive- ,
editing and redacting.
1 Id. at 9.
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Intervenor seeks the release of the entire OI Report and its-exhibits or attachments (Tr. 159, 161) , GPC seeks and has requested only that the OI records of interviews of NRC Staff personnel and the transcripts of OI's interviews of GPC personnel be released. Tr. 163, 188-89.F GPC believes that if it receives such records and transcripts, which are purely factual, it would have all the_information necessary to reach its own conclusions concerning the allegations. Tr. 163, 188-89.
Discovery on all matters could then proceed in this case.
On March 14, 1994, the NRC Staff filed a motion for a stay of the Licensing Board Order releasing the OI report. The Commission entered a " housekeeping" stay to preserve the status 3 gp_o ante while considering the Staff's motion. On March 24,
-i 1994, with the stay motion still under consideration, the NRC Staff filed its Petition For Review of LBP-94-6 and/or Motion for Directed Certification. )
III. RISCUSSlpH A. The NRC Staff's Withholdina of the Factual Information !
Associated with the OI Renort is Contrary to LAW I 1
1 As argued in GPC's Response to Staff's Stay Motion, the NRC j 1
Staff's position that release of the OI Report and factual F These factual interviews were identified as the "26 I Exhibits" in an affidavit of OI investigator Larry Robinson )
attached to the NRC Staff Response to Georgja Power Company's l Motion to Compel NRC Staff Response to Certain Interrogatories, l dated January 21, 1994. The Licensing Board's February 1,_1994 )
order broadened the scope of the factual information to include "any or all of the factual attachments or exhibits (not involving l the Staff's evaluation or its policy conclusions) to the [OI] l Report...." Memorandum and Order (Prehearing Conference Order: l Schedule), dated February 1,1994 (unpublished) (footnote omitted) .
information (presumably including the purely factual interview records sought by GPC) will adversely and irrevocably affect the Commission's deliberative process related to possible enforcement actions is without merit with regard to the purely factual information which GPC seeks. The Staff does not demonstrate how release of purely factual information will interfere with the Commission's deliberative process. Instead, it_ simply lumps together the OI report and factual information without any meaningful analysis relating to the disclosure of facts.
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In support of its position, the Staff cites three cases in a footnote for the proposition that " courts have noted that there may be instances where factual information may be withheld." Staff's Petition at 5, n. 8. However, the Staff has made no showing as to why the factual information which the Board has ordered the Staff to release to the parties in this case is 1
entitled to protection from disclosure under the holdings of those cases. A review of the facts in each of those cases shows that they do not support the Staff's position that OI interview records may be withheld.
In the first case, Eead Data Central. Inc. v. Department of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977), the D.C. Circuit ruled on whether disclosure was required of a " running summary" of the offers and counteroffers made by each side in the Air Force's negotiations with West Publishing Company. The court held:
Predecisional materials are not exempt merely because they are predecisional; they.must also be part of the
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- j deliberative process within a government agency. The documents in this case which would reveal the Air Force's internal self evaluation of its contract negotiations, including the discussion of the merits of l- past efforts, alternatives crrrently available, and q recommendations as to future strategy, fall clearly within this test. Information about the " deliberative" or negotiating process outside an agency, between ,
itself and an outside party, does not.
Id. at 257 (citation omitted). The court then ruled that, absent i
.- more compelling reasons which might be brought forth on renand I and supported by adequately detailed proof, disclosure of the j
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" running summary" was required.
1 l- The OI interview records sought by GPC (notes and transcripts of OI interviews with NRC Staff and GPC personnel) clearly do not fall within the category of records which the Mead Data court held were protected by the deliberative process exemption. Indeed, those records are more like the documents- y which the Mead Data court ruled must be disclosed because they f F
are not records of internal agency self evaluations but rather are records of statements of facts.
In the second case, Montrose Chemical Corp. v. Train, 491 F.2d 63, (D.C. Cir. 1974), the D.C. Circuit decided the question of whether a summary of facts that had been prepared by the EPA staff for use by the EPA Administrator in formulating his decision and final order was itself a part of the internal, deliberative process which was entitled to protection. The court held that "[t]o probe the summaries of record evidence would be the same as probing the decision-making process itself." Id. at
[ 68. The court went on to state that:
L- -.
our case here is to be distinguished from a situation in which the only place certain facts are to be found is in the administrative assistants' memoranda. Here all the facto are in the public record. What'is not in, and should not be in, the public record is the administrative assistants' evaluation and selection of certain facts from the 9200-page public record. If we confront-a case in which some facts are only found in the aide's memorandum, the principles _of Vaughn v.
Rosen and Cuneo v. Schlesinger would be applicable, i.e., the Government would bear the burden of putting the record in such shape that all facts are in the public record, separate from analysis which need not be disclosed.
Id. at 70-71 (footnotes omitted).
The Montrose case appears to support GPC's argument that it is entitled to know all the facts which are relevant to the.
matter at issue in this case. The factual information which GPC seeks is not simply a summary of facts already available to GPC.
Among the records encompassed by the Licensing Board's Order is factual information to which GPC currently does not have access.
In the third case, Epundina Church of Scientoloav v.
Director, 104 F.R.D. 459 (D.D.C. 1985), the D.C. District Court held that "[t]he rationale for the deliberative process privilege is its supposed avoidance of chilling effects on decision-making.
That goal is not furthered and could in fact be. hindered by a requirement that the privilege be asserted in all cases by agency heads." 104 F.R.D. at 465, n. 5, auctina Ut.S. D.O.E. v. Brett, i 659 F.2d 154, 156 (TECA 1981), cert. denied, 102 S.Ct. 1992 (1982). The Scientoloav case addresses the procedures required.
for asserting the deliberative process privilege and does not provide support for the Staff's position that it is entitled to l withhold factual information in the case at bar.
The Staff's Petition focuses on the limited time period of the delay it now seeks, even though the events under !
investigation occurred almost four years ago, and argues agair<
the elements of the balancing test used by the Licensing Board to deny the NRC Staff's request for continued delay in releasing the !
OI-report and its associated factual materials. The Licensing Board on several occasions, in addition to the Order under review, has addressed the Staff's requests for delay-in this-proceeding. On January 12, 1993, in a prehearing conference the-Staff sought a delay which it anticipated would be "six months."
Tr. 91. In November, 1993, the Board recounted.the numerous subsequent requests by the Staff to delay discovery,-including the various factual representations made by the Staff as to when discovery could proceed in the normal course. Memorandum and .
Order, dated November 17, 1993, LBP-93-22, at 3-6. Some of the historic Staff representations to the Board and the parties- .,
include:
- e. Completion of investigation and review by the Staff to be completed within four to six months of March 8, 1993; .;
- Completion of the OI investigation within two months of August 26, 1993;
- Completion of investigation and enforcement review by the Staff and Commission by March 15, 1994. Id.
The Commission should observe'that prior to late October,-
1993, the factual basis for these delay requests emphasized the pending 01 investigation. More recently, with the completion of k
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the OI investigation on December 17, 1993, and the submission of a recommendation to the Commission, the Staff has founded its arguments on a more slender reed -- application of historic Staff practice and "the spirit" of the Policy Statement. These are factually inadequate and legally insufficient reasons for the continued, prejudicial delays in discovery which began in May,
. 1993. Id. at 8.
Interestingly, the NRC Staff's balancing analysis fails to address the continuing prejudice to GPC associated with the additional delay it now seeks. Staff's Petition at 9-10. This omission is not surprising given that the Licensing Board has previously found prejudice to GPC as a result of the NRC Staff's delays in producing relevant factual information to GPC. LBP 22, supra, at 13-16.
B. The NRC Staff's Petition Does Not Meet the Standards For j Interlocutory Review With Recard to Factual Information When the Commission adopted its current appellate procedures, it preserved the case law standard for interlocutory review developed when the former Atomic Safety and Licensing Appeals Board still existed. See Safety Licht Corp. (Bloomsburg Site Decontamination), CLI-92-9, 35 N.R.C. 156, 1T8 (1992).
Extensive case law has long held that " interlocutory appellate l
review of licensing board orders is disfavored and will be undertaken as a discretionary matter only in the most compelling' circumstances." Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), ALAB-742, 18 N.R.C. 380, 383 I l
(1983) (footnotes omitted); see also, Virainia Electric and Power-j l
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Cg2 (North Anna Power Station, Units 1 and 2), ALAB-741, 18 N.R.C. 371 (1983); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 N.R.C.
1190 (1977).
In the present appellate structure,-where the Commission performs the appellate review function in agency adjudication,
.. the Commission has codified in 10 C.F.R. S 2.786(g) the standard-which must be met before interlocutory review or question certification may be granted. Oncoloav Services Corp., CLI 13, 37 N.R.C. 419, 421 (1993). Thus, the Staff's Petition must ,
show that the certified question or referred ruling either:
(1) Threatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officer's final decision; or (2) Affects the basic structure of the proceeding in a' pervasive or unusual manner.
10 C.F.R. S 2.786(g). The Staff's Petition fails to meet either standard with regard to the factual information GPC seeks.
First, the Staff's Petition fails to articulate, in a. clear.
and convincing f ashion,2' that the NRC will suffer an immediate and serious irreparable impact by releasing the factual information GPC seeks. The only adverse impact articulated in the Staff's petition is that " premature disclosure of the facts and views reflected in the OI Report could adversely affect the 2/ s e e . P_a l o Verde, suora, 18 N.R.C. at 383 (the NRC's appellate review body "will step into a proceeding still pending below only upon a clear and convincing showing" that the standards ,
in S 2.786(g)-for appellate review have been satisfied). l l
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ability of the Commission and its Staff to deliberate concerning whether to institute an enforcement action against the Licensee.d'" Staff's Petition at 6, emphasis added. GPC is not interested in and does not seek disclosure of " views" reflected in the OI report, or any analysis presented in the OI report.
Instead, GPC only seeks purely factual interview records, and the Staff provides no explanation how release of this information would in any way affect the ability of the Commission to deliberate. It is remarkable -- and untenable -- to suggest that, after completion of an investigation, a licensee's knowledge of the facts would interfere with an NRC enforcement d' The Staff's Petition takes the position that disclosure of OI's factual information is " contrary to long standing agency '
practice" and cites the NRC Enforcement Manual (May 1990) at S 5.3.4.h and an NRC Staff Memorandum dated May 20, 1992, as' support for this assertion. Staff's Petition at 5. However, the Enforcement Manual section referenced above in fact discusses how the NRC Staff generally provides a synopsis of OI's report to the licensee prior to an enforcement conference except in instances where release of the information could interfere with onaoina investigation activities. Moreover, the longer standing practice embodied in the NRC -Statement of Policy; Investigations, Inspections, and Adjudicatory Proceedings, _ 49 Fed. Reg. 36032 (1984) , and explained in the Licensing Board's Order, LBP-94-06 '(at 5-6), is that purely factual information necessary to the resolution of a matter should be disclosed once an inspection or investigation is completed.
The Staff's reference to a May 20, 1992 Staff Memorandum as support for a "long ' standing" practice is also- questionable.
Although the Memorandum states that OI interview transcripts are not to be released before enforcement action is . taken, - GPC's experience is different. Frequently interview transcripts are provided to witnesses af ter " field work" is completed by OI. - This-is an understanding reached prior to the interviews. Indeed, the OI investigator conducting - the investigation related to this proceeding reached such an understanding with interviewees prior to their interviews and several months later. informed counsel for the interviewees that, due to Office of Enforcement concerns, .the~
transcripts might be witnheld. 1 o<
decision.
The NRC Staff's argument is vague, conclusory, and speculative. It fails to show that the NRC Staff will experience the type of specific, concrete harm necessary to justify the extraordinary nature of the relief sought.I' It is-inconceivable how release of purely factual information could stifle the deliberative process as claimed in the Staff's Petition.
Moreover, the Staff's Petition fails to make a " clear and convincing showing" that it is entitled to the relief it seeks.s' The Staff's Petition does not even address the second standard under which the relief it seeks might be granted. There is no basis for believing that the release of the factual information sought would affect the basic structure of this j
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proceeding in a pervasive or unusual manner. As the Staff's i Petition states, "[t]he issue is not whether, but when, to release" the factual information sought by GPC. Staff's Petition at 6, emphasis in original. Given that the entire OI record will eventually be released and available for use in this proceeding, 2' In the absence of a concrete basis for withholding OI's factual information, the NRC Staff is left to invoke the ethereal
" spirit of the Policy. Statement" as a basis for continuing to withhold the f actual information GPC seeks. Staff's Petition at 5.
D' The NRC Staff's articulated concerns associated with immediate release of OI's factual information are belied by the fact that the NRC Staff has apparently shared certain factual information with the Intervenor. See Board Notification 94-07, dated March 24, 1994 (Mr. Mosbaugh is able to discuss the content of a 1993 OI interview of Mr. R. P. Mcdonald even though Mr.
Mosbaugh was not present for the interview and even though the NRC Staff insists that its longstanding practice is not to disclose such OI interview transcripts).
release or the tactual information now could not affect the
" basic structure of the proceeding in a pervasive or unusual manner .2in IV. CONCLUSION For the reasons stated above, the Commission should deny the NRC Staff's Petition and order the NRC Staff to comply immediately with the Licensing Board's March 3,.1994 Order'(LBP-94-06) as it relates to release of all easy-to-separate factual information.
2' The Palo ' Verde' Appeals Board, suora, . aptly ' noted .in ruling on an interlocutory review motion that "[u]nderstandably, parties and their counsel are displeased whenever a licensing board enters an interlocutory order that appears 'to affect their.
interests adversely and, in their judgment, .is-plainly wrong to boot. . . . But, to repeat what we have said on so-many prior-occasions, in the overwhelming majority of instances the party !
simply must await the licensing board's initial decision' before {
bringing its [ appeal) . . . . " 18 N.R.C.'at.384.
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. -j Respectfully submitted,
,e ohn Lambetski TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E.
Atlanta,_GA 30308-2216 (404) 885-3360 Ernest L. Blake David R. Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, D.C. 20337 (202) 663-8084 Counsel for Georgia Power Company Dated: March 30, 1994 yS 8
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UNITED STATES OF AMERICA h'h 5 5 NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION .
21 \\
)
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 (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 i Response to NRC Staf f Petition for Review of LBP-94-6 and/or Motion for Directed Certification" in the above-captioned proceeding was served upon the persons listed on the attached service list by l either United States Mail, first class, or as indicated by an l
l asterisk by facsimile this 30th day of March, 1994.
ohn Lamb 6rski l
l
6 e
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of GEORGIA POWER COMPANY,
- Docket Nos. 50-424-OLA-3 91 jlLl.
- 50-425-OLA-3 (Vogtle Electric
- Re: License Amendment Generating Plant, *
(Transfer to Southern Units 1 and 2)
- Nuclear)
- ASLBP No. 93-671-01-OLA-3 ;
RERVICE LIST :
Ivan Selin, Chairman
- Administrative Judge * ;
U.S. Nuclear Regulatory Peter B. Bloch, Chairman commission Atomic Safety and Licensing One White Flint North Board 11555 Rockville Pike U.S. Nuclear Regulatory Rockville, Maryland 20852 Commission i Washington, D.C. 20555 l Kenneth C. Rogers, Commissioner
- Administrative Judge
- j U.S. Nuclear Regulatory James H. Carpenter commission Atomic Safety and Licensing One White Flint North Board 11555 Rockville Pike 933 Green Point Drive Rockville, Maryland 20852 Oyster Point Sunset Beach, NC 28468 Forrest J. Remick, Commissioner
- Administrative Judge
- U.S. Nuclear Regulatory Thomas D. Murphy Commission Atomic Safety and Licensing One White Flint North Board 11555 Rockville Pike U.S. Nuclear Regulatory Rockville, Maryland 20852 Commission Washington, D.C. 20555 E. Gail de Planque, Commissioner
- Michael D. Kohn, Esq.*
U.S. Nuclear Regulatory Kohn, Kohn & Colapinto, P.C.
Commission 517 Florida Avenue, N.W.
One White Flint North Washington, D.C. 20001 11555 Rockville Pike Rockville, Maryland 20852 Office of Commission Appellate Adjudication *-
Office of the Secretary
- One White Flint North U.S. Nuclear Regulatory 11555 Rockville Pike Commission Rockville, MD 20852 Washington, D. C. 20555 ATTENTION: Docketing and ATTN: Docketing and Service Branch Services Branch
O Stewart D. Ebneter Regional Administrator USNRC, Region II 101 Marietta Street, NW Suite 2900 Atlanta, Georgia 30303 Charles Barth, Esq.*
Office of General Counsel One White Flint North Stop 15B18 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Director, Environmental Protection Division Department of Natural Resources 205 Butler Street, S.E.
Suite 1252 Atlanta, Georgia 30334 l
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