ML20056C144

Order.* Advises That Util 930304 Application for Stay & Parties Responses Referred to Board for Further Consideration.W/Certificate of Svc.Served on 930318

ML20056C144
Person / Time
Site:	Vogtle
Issue date:	03/18/1993
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	GEORGIA POWER CO., GEORGIANS AGAINST NUCLEAR ENERGY, NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
CON-#193-13747 CLI-93-06, CLI-93-6, OLA-3, NUDOCS 9303300150
Download: ML20056C144 (6)

Text

/ bh?@Ih D UNITED STATES OF AMERICA .

NUCLEAR REGULATORY COMMISSION Commissioners: '93 "TI 18 P 2 ZZ Ivan Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick E. Gail de Planque 3ERVED t1VR 18199

)

In the Matter of )

)

GEORGIA POWER COMPANY, ) Docket Nos. 50-424 OLA-3 gi g12 ) 50-425 OLA-3

)

(Vogtle Electric Generating ) ,

Plant, Units 1 & 2) ) *

)

ORDER CLI-9 3- 06 The licensee, Georgia Power Company (GPC) , has filed a timely appeal under 10 C.F.R. S 2.714a (1992) of a memorandum and order, LBP-93-5, 37 NRC (Feb. 18, 1993), issued by the Atomic Safety and Licensing Board in this proceeding. The proceeding concerns a proposed amendment to transfer the operating authority under the licenses for the Vogtle Electric Generating Station from GPC to Southern Nuclear Operating Company (SNOC). In its memorandum and order, the Licensing Board granted the petition for intervention filed by Allen L. Mosbaugh and admitted a single contention for litigation which, in sum, alleges that SNOC does not have the requisite character, competence and integrity to be an NRC licensee. Slip op. at 28. GPC contends on appeal that 9303300150 930318 PDR ADOCK 05000424 1P' O PDR $0

2 the Board erred in concluding that Mr. Mosbaugh has established l standing and that he has proffered a good contention.

Concurrently with its appeal, GPC has also filed an application under 10 C.F.R. S 2.788 (1992) for a stay of the Licensing Board's order pending a Commission decision on its appeal. The NRC staff has responded on March 16, 1993, by supporting GPC's stay application, although the staff opposes ,

GPC's appeal. Mr. Mosbaugh has asked for additional time to I respond to GPC's appeal and stay application, which the Commission is granting by separate order. In addressing the i i

criteria for a stay in section 2.788(e), GPC argues that it will i

suffer irreparable injury because --

[i]f the Board's Order is not stayed, GPC employees  !

could be subject to depositions and interrogatories on precisely the same issues that are being investigated by the DOJ [U.S. Department of Justice). This situation has the potential for undermining the Fifth l

. Amendment privilege rights of GPC employees, expanding l

. the rights of criminal discovery beyond the limits of Federal Rule of Criminal Procedure 16(b), exposing-the l basis of GPC's and-its employees' defenses to any  !

criminal prosecution in advance of trial, or otherwise r prejudicing the case.  ;

GPC's Application for a Stay at 4. i In LBP-93-5, the Licensing Board ordered the parties to l i

negotiate an appropriate schedule for discovery or to file by March 8, 1993, each party's suggested discovery and trial schedule. The NRC staff was also directed to show cause why }

i discovery of prosecution-related documents should not commence. l

< Slip op. at 27. On March 8, the staff filed a response to the l t

i Board's order in which the staff maintains that discovery.against j

)

I

1

- 3 the staff related to ongoing investigatory efforts should be f deferred in order to avoid possible prejudice to DOJ's t

consideration of possible criminal prosecution as well as to .

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potential NRC enforcement actions. The staff estimates that the ,

pending investigations will be complete in approximately six }

months. The staff reiterates many of the same arguments that it l l

made before the Licensing Board in its reply supporting GPC's l

stay application. l Although GPC and the staff argue different grounds, their positions are rooted in the same underlying cause, a pending criminal investigation and potential prosecution, and they seek i

similar relief through deferred discovery. GPC alludes to the ,

Board's discussion of the staff's concerns with proceeding with i discovery, but it does not appear that GPC has put its own objections to certain discovery before the Board. Under these

{ circumstances, the Commission is referring GPC's application for  !

a stay and the parties' responses to the Licensing Board for I

consideration in conjunction with the Board's resolution of the ,

J staff's position on discovery and its fashioning of an l

appropriate order governing discovery and other pre-trial  ;

q.

t i matters. This approach will permit the Licensing Board to I address GPC's and the staff's related, though distinct, claims in a coherent manner and will avoid the possibility that the Board and the Commission separately may reach inconsistent results. To l l

the extent that the Licensing Board may require a greater )

specification of GPC's claims of harm, the Commission does not l d

l  !

i

, ~ - , - . 1

l h 4 object to the Board's solicitation of additional filings from GPC  !

and the other parties.

Our referral is without prejudice to GPC's or any other party's filing of a subsequent application for stay under 10 C.F.R. S 2.788 or for interlocutory review under 10 C.F.R S 2.786(g), provided the pertinent criteria are met, in the event i a party believes it has been aggrieved by a future Licensing Board order. The Commission is reviewing GPC's appeal of LBP-93-5 and will decide the appeal in due course. 1 For the reasons stated in this order, GPC's application for 4 stay dated March 4, 1993, and the parties' responses thereto (including Mr. Mcsbaugh's response, due to be filed on March 22) are hereby-referred to the Licensing Board for further consideration consistent with this order.

IT IS SO ORDERED.

For the Commission 1 Ut f

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i SAMUEL 97. CHILK Secretary of the Commission Dated M* Rockville, Maryland, this /Y day of March 1993. [

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Commissioner Remick was not available for the affirmation ,

of this order; if he had been present, he would have approved the i order.

- - - - - - - -- -_-- e- - - + , - - -e

i UNITED STATES OF AMERICA NUCLEAR REGULATORY C0KMISSION In the Matter of GEORGIA POWER COMPANY, ET AL. Docket No.(s) 50-424/425-OLA-3 (Vogtle Electric Generating Plant, Units 1 and 2)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMM ORDER (CLI-93-6) 3/18/93 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Office of Commission Appellate Administrative Judge ,

Adjudication Peter B. Bloch, Chairman ,

U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Administrative Judge James H. Carpenter Thomas D. Murphy Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 John Lamberski, Esq.

Office of the General Counsel Counsel for Georgia Power Company U.S. Nuclear Regulatory Commission Troutman Sanders Washington, DC 20555 Suite 5200, 600 Peachtree Street, N.E.

Atlanta, GA 3030B Ernest L. Blake, Jr., Esq. Michael D. Kohn, Esq.

David R. Lewis, Esq. Stephen M. Kohn, Esq.

Shaw, Pittmtn, Potts & Trowbridge Kohn, Kohn & Colapinto, P. C.

2300 N Street, N.W. 517 Florida Avenue, N.W.

Washington, DC 20037 Washington, DC 20001 l

" Docket No.(s)50-421/425-OLA-3 COMM ORDER (CLI-93-6) 3/18/93 C. K. McCoy V. President Nuclear, Vogtle Project Georgia Power Company Post Office Box 1295 Birmingham, AL 35201 Dated at Rockville, Md. this '

18 day of March 1993 Offite of the Secretary of the Commission