ML20024J297
| ML20024J297 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 10/03/1994 |
| From: | Barth C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20024J298 | List: |
| References | |
| CON-#494-15765 OLA-3, NUDOCS 9410130170 | |
| Download: ML20024J297 (6) | |
Text
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l:SNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION D -3 P5 :08 BEFORE THE ATOMIC SAFETY AND LICENSING BDARD ~
U-In the Matter of
)
) Docket Nos.
50-424-OLA-3 GEORGIA POWER COMPANY, et al.
)
50-425-OLA-3
)
(Vogtle Electric Generating Plant
)
Re: Licensee Amendment Units 1 and 2)
)
(Transfer to Southern Nuclear)
)
NRC STAFF RESPONSE IN SUPPORT OF GEORGIA POWER COMPANY'S MOTION FOR
SUMMARY
DJSPOSITION OF THE ILLEGAL LICENSE TRANSFER ISSUE INTRODUCTION On August 24, 1994, Georgia Power Company (GPC) filed " Georgia Power Company's Motion for Summary Disposition of Intervenor's Illegal Transfer of License Allegations" (Motion), pursuant to 10 C.F.R. { 2.749. For the reasons set forth below and in the attached Af6 davit of Frederick R. Allenspach and Darl S. Hood, the Staff 1
supports the Motion and recommends that it be granted.
BACKGROUND Intervenor has alleged' that during the period 1988 through 1990, the operation of Vogtle Facilities was transferred from Georgia Power Company (GPC) to Southern Nuclear Operating Company, Inc. and/or its unincorporated predecessor, the SONOPCO A more detailed history of the illegal license transfer issue is set forth in the Affidavit of 3
Mr. Allenspach and Mr. Hood which is a part of this response, and in the Partial Director's Decision regarding Vogtle, DD-93-8, 37 NRC 314 (1993), pertinent parts attached as Appendix D.
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Project, without the authorization of the NRC. The alleged transfer was accomplished by Mr. Joseph Farley, head of the SONOPCO project issuing orders to Patrick Mcdonald, Executive Vice President of Georgia Power Company, and through him, to Charles Kenneth McCoy, Vice President of Georgia Power Company for the Vogtle Facilities.2 This contention was admitted by Licensing Board, LBP-93-5,37 NRC 96 (1993). On August 24, 1994, GPC moved for summary disposition of this allegation.
As discussed below, the Staff supports the Motion as there is no genuine issue of material fact now in dispute.
DISCUSSION A. Standards for Granting or Denial Summary Disposition The use of summary disposition has been encouraged by the Commission to avoid unnecessary hearings on contentions for which an intervenor has failed to establish the existence of a genuine issue of material fact.
E.g., Statement of Policy on Conduct of Licensing Proceedines, CLI-81-8,13 MRCC 452. 457 (1981); Houston Lighting &
Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542, 550-551 (1980).
The Commission's Rules of Practice in 10 C.F.R. y 2.749 authorize a presiding officer to consider a party's motion for a decision in that party's favor on any part of the matters involved in a proceeding. Section 2.749(d) provides that:
This allegation was also put forth by Mr. Hobby and Mr. Mosbaugh in a 2
10 C.F.R. f 2.206 petition filed a September 11,1990, and by Mr. Hobby in a Department of Labor proceeding, Case No. 90-ERA-30 (Hobby v. GPC).
3-The presiding officer shall render the decision sought if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law.
~
The Commission recently reiterated the standards governing summary disposition pursuant to 10 C.F.R. $ 2.749, which the Commission found analogous to Rule 56 of the Federal Rules of Civil Procedare, in Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-93-22,38 NRC 98 (1993), reconsideration denied, CLI l 24,38 NRC 187 (1993). Summary disposition should be entered when the pleadings, depositions, affidavits, and admissions show no genuine issue as to any material fact.
1
/d. at 102-0310 C.F.R. 6 2.749; see Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-73-12, 6 AEC 241,242 (1973), af'd sub nom.
BPI v. AEC, 502 F.2d 424 (D.C. Cir.1974).
The movant seeking summary disposition has the burden of demonstrating the i
absence of any genuine issue of material fact. Adickes v. Kress, 398 U.S.144,157 (1970); Cleveland Electn'c illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
ALAB-443, 6 NRC 741, 752-53 (1977). All material facts set forth in the motion and not adequately controverted by the response to a summary disposition motion are deemed j
1 to be admitted.10 C.F.R. 5 2.749(a). If the evidence used to support a motion does not demonstrate that a genuine issue of fact does not exist, the motion must be denied even if there is no opposing evidence presented. Perry, ALAB-443, 6 NRC at 753-54.
However, a party opposing the motion may not rely on a simple denial of material facts i
i i
stated by the movant, but must set forth specific facts showing that there is a genuine
issue.
10 C.F.R. 6 2.749(b); see Public Service Co. of New Hampshire (Seabrook Station, Units I and 2), CLI-92-8,35 NRC 145,154 (1992).
No genuine issue of fact remains in contest in this proceeding regarding the alleged illegal license transfer. In the Mosbaugh-Hobby petition fibd on September 11,1990, pursuant to 10 C.F.R. 6 2 '06, the same assertion of an illegal transfer was raised. On July 8,1991, that 6 2.2 2 Petition was amended.
Since July 8,1991, no new information relating to the alleged illegal transfer has been provided by Mr. Mosbaugh, the Intervenor in this proceeding, or by any other person that would lead the Staff to change its position.
On April 23, 1993, a " Partial Director's Decision Under 10 C.F.R. f 2.206," was issued in which the Director of Nuclear Reactor Regulation determined that no illegal transfer of the license or of the operation of the Vogtle facility v
had occurred. DD-93-8,37 NRC 314 (1993). The Commission vacated and remanded the Partial Director's Decision concluding that "We, therefore, vacate DD-93-8 and remand to the Staff those portions of the section 2.206 petition decided therein for the Staff's further evaluation and final decision in conjunction with the staff's resolution of the other remaining matters in the petition and in light of the outcome of the transfer proceeding.
In taking these actions, we intimate no view on the soundness of the Staff's analysis of the issues in DD-93-8."
CL1-93-15,38 NRC 1,3 (1993) The staff hereby affirms and adopts that portion of DD-93-8,37 NRC at 315, 317-322, and 345, which relates to the defacto illegal transfer issue, and supports the GPC Motion for summary deposition.
The GPC Motion is accompanied by a Statement of Material Facts pursuant to i
10 C.F.R. 6 2.749(a), which are not in dispute.
Most of these " facts" have been
established by a stipulation among the parties,' by depositions and NRC's independent inspections.' The undisputed facts clearly demonstrate that in the 1989-1990 time period, control of the operation of the Vogtle facilities was as follows: Mr. Mcdonald was the Executive Vice President, Georgia Power Company-Nuclear.5 He reported to Mr. Scherer and later to Mr. Dahlberg, both Chief Executive Officers of Georgia Power Company.' Mr. Hairston, Senior Vice President-Nuclear of Georgia Power Company reported to Mr. Mcdonald.7 Mr. Charles Kenneth McCoy, Vice President-Nuclear, for the Vogtle Facility, Georgia Power Company, reported to Mr. Hairston.' The chain of command for the operation of the Vogtle facility was, and is, entirely composed of Georgia Power Company personnel. No information has been produced by anyone which casts any doubt on these facts and these facts refutes the Intervenor's allegations of an illegal transfer of the control of operating the Vogtle facilities from Georgia Power Company to SONOPCO project and to its successor, the Southern Nuclear Operating Company,Inc. The Affidavit of Mr. Allensbach and Mr. Hood makes it clear that today, Georgia Power Company operates the Vogtle facility.
l
' Letter Charles A. Barth to John 12mberski, dated May 12, 1994, attached.
' Affidavit paragraph number 17.
- Affidavit, paragraph 18.
Affidavit paragraph Number 19.
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- Affidavit paragraph Number 21.
CONCLUSION There are no genuine issue of material fact as to whether there was an illegal transfer of the operating licenses for the Vogtle facilities during 1988-1990. The contention basis is without evidentiary support. In accordance with the Commission's regulations,10 C.F.R. { 2.749, and based upon the undisputed material facts before the Licensing Board Georgia Power Company's Motion for Summary Disposition Intervenor's Illegal Transfer of Licensee Allegation should be granted.
Respectfully submitted,
<tc4'Y&
Charles A. Barth Counsel for NRC Staff Dated at Rockville, Maryland this 3rd day of October 1994
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UNITED STATES i,, J / / E NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20E0001 s, m,
May 19, 1994 i
John La=berski, Esq.
Troutman Sanders NationsBank Building Suite 5200 600 Peachtree Street, N.E.
Atlanta, Georgia 30308 In the Matter of GEORGIA POWER COMPANY, et. al.
(Vogtle Electric Generating Plant, Units 1 and 2)
Docket Nos. 50-424-OLA-3 and 50-425-OLA-3
SUBJECT:
STIPULATIONS REGARDING ILLEGAL TRANSFER Mr. Lamberski:
Attached to your letter of April 19, 1994, addressed to me and
- Kohn, were 57 proposed stipulations of fact Mr. Michael accorpanied by 35 documents which support the stipulations.
Your letter of April 22, 1994, amended those stipulations, correcting some administrative errors.
The Commission's regulations, policy statement, and the Licensing Board all encourage the parties to stipulate to undisputed facts to save needless hearing time and inconvenience. The NRC Staff hereby agrees and stipulates that Georgia Power Company may offer, and the Licensing Board may receive, into evidence in this proceeding without objection from the NRC Staff, your letter to me and Michael D.
Kc:
dated Apri'. 19, 1994, and its accompanying 57 stipulations and 35 attached documents, as amended by your letter and its attachments, dated April 22, 1994, also addressed to me and Michael D. Kohn, except for stipulation 4 which relates to matters beyond our knowledge and 4b which involves reporting procedures of This Georgia Power Company and Southern Nuclear Operating Company.
is a major contested issue in this proceeding and does not appear We do stipulate that 4a and 4c to us to be proper for stipulation.
may be accepted as evidence without Staff objection.
Sincerely, Cha?.es A. Barth Counsel for NRC Staff cc:
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