ML20034H843
| ML20034H843 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 03/16/1993 |
| From: | Reis E NRC COMMISSION (OCM) |
| To: | |
| References | |
| CON-#193-13738 LBP-93-5, OLA-3, NUDOCS 9303220143 | |
| Download: ML20034H843 (12) | |
Text
{{#Wiki_filter:./3 f -1 DecF.ETED U!:W l UNITED STATES OF AMERICA -l NUCLEAR REGULATORY COMMISSION 93 p, g pq :a g BEFORE THE COMMISSION In the Matter of ) ) Docket Nos. 50-424-OLA-3 c,, ) 50-425-OLA-3 4 GEORGIA POWER COMPANY ) et al. ) Re: License Amendment ) (Transfer to Southern Nuclear) (Vogtle Electric Generating Plant ) Units 1 and 2) ) NRC STAFF BRIEF IN RESPONSE TO LICENSEE'S APPEAL OF LICENSING BOARD ORDER GRANTING PETITION TO INTERVENE I; Edwin J. Reis Deputy Assistant General Counsel for Reactor Licensing March' 16,1993 9303220143 930316 {DR ADOCK 05000424 3so 7 a eDR
L UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) ) Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY, et al. ) 50-425-OLA ) o (Vogtle Electric Generating Plant ) Re: Licensee Amendment Units 1 and 2) ) (Transfer to Southern Nuclear) i ) NRC STAFF BRIEF IN RESPONSE TO LICENSEE'S APPEAL OF LICENSING BOARD ORDER GRANTING PETITION TO INTERVENE INTRODUCTION Georgia Power Company has filed a Notice of Appeal and Brief' requesting that the Commission reverse the " Licensing Board's Memorandum and Order (Admitting A Party)" LBP-93-5, 37 NRC _ (February 18,1993), which admitted Allen L. Mosbaugh as a party in this proceeding. The Staff opposes the appeal. BACKGROUND On October 22,1992, Allen L. Mosbaugh and Marvin B. Hobby filed a " Petition to Intervene and Request for Hearing" (Petition), in connection with Georgia Power Company's (Licensee) September 18,1992, request for an order and license amendment 8 " Georgia Power Company's Notice Of Appeal Of The _ Licensing Board's February 18, 1993, Memorandum And Order Admitting A Party; Georgia Power Company's Brief In Support Of its March 4,1993 Notice Of Appeal," dated March 4,1993 (Licensee's Brief). 9 j
-t m 2-1 i which'would transfer operating control' of the Vogtle facility from the Georgia Power Company to the Southern Nuclear Operating Company, Inc. (Southern Nuclear).' The t Licensing Board, in Memorandum and Order (Prehearing Conference; Filing Schedule), LBP-92-32,36 NRC_ (November 17,1992), determined that Marvin B. Hobby did not 'l have standing (id. at 3 and 4), and withheld a decision on Mr. Mosbaugh's standing pending the submission of an amended petition to intervene and contentions. It. at 5 and 7. Mr. Mosbaugh filed an amendment to his petition and his contentions which alleged that Southern Nuclear and its officers lack the character to possess an operating l license for Vogtle.' A prehearing conference was held in Augusta, Georgia on-l January 12, 1993. Thereafter, the Licensing Board issued its Memorandum and Order (Admitting a Party), LBP-93-5, 37 NRC (February 18,~ 1993), wh,ich admitted Mr. Mosbaugh as a party, admitted a single contention dealing with the character of Both of these companies are wholly owned subsidiaries of the Southern Company 2 and largely have the same officers. See LBP-93-5, at 3-4. 8 Amendments To Petition To Intervene and Request For Hearing, December 9,1992. Mr. Mosbaugh also has pending a September 11, 1990, petition, filed under 10 C.F.R. 5 2.206, as supplemented July 8,1991, which seeks to suspend Georgia Power's license for Vogtle for the same reasons concerning a lack of character - that he gives as a basis for his contentions herein. Further, the contentions and an ongoing criminal investigation appear to involve,aany of the same facts. -See Affidavit of Ben B. Hayes, annexed to "NRC Staff's Response to Licensing Board Memorandum And Order (Admitting Party)," dated March 8,1992, filed with the Licensing Board in this proceeding. ,4 i r
Southern Nuclear,' and provided for the commencement of discovery.5 On -{ March 4,1992, the Licensee, Georgia Power Co., filed a Notice of Appeal and supporting brief. DISCUSSION 4 A. Allen L. Mosbaugh Was Properly Granted Standing The Licensee has appealed the Licensing Board's grant of standing to-Mr. Mosbaugh in this proceeding. The grant of standing in NRC proceedings is governed by Section 189a of the Atomic Energy Act ("AEA"),42 U.S.C. 6 2239(a), which provides, in pertinent part, that: In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control,... the Commission shall gmnt a hearing upon the reouest of any person whose interest may be afected by the proceeding, and shall admit any such person as a party to such proceeding (emphasis added). d The contention reads: The license to operate the Vogtle Electric Generating Plant, Units 1 and 2, should not be transferred to Southern Nuclear Operating Company, Inc., because it lacks the requisite character, competence and integrity, as well as the ~ necessary candor, truthfulness and willingness to abide by regulatory requirements. l LBP-95-3 provided, inter alia, that the Staff should show cause why discovery of 5 prosecution-related documents, which might be material to the contention, should not commence immediately. 'On March 8,1993, the Staff filed a response to that order indicating why commencing discovery of prosecution-related material mightjeopardize criminal or enforcement proceedings under consideration, and would be contrary to Commission policy and the Rules of Practice. NRC Staff's Response To Licensing Board Memorandum and Order (Admitting Party)," dated March 8,'1993.
f. Under NRC regulations implementing the AEA, "any person whose interest may - be affected by a proceeding and who desires to participate as 'a party shall file a written petition for leave to intervene." 10 C.F.R. 6 2.714(a)(1). Such petition must satisfy the following requirements: The petition shall set fonh with particularity the interest of the petitioner in the proceeding, how that interest may be afected by the results of the proceeding, including the reasons why petitioner should be permitted to ~ intervene, with particular reference to the factors in paragraph (d)(1) of this section, and the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene. 10 C.F.R. $ 2.714(a)(2) (emphasis added).' In determining whether a person or organization has sufficiently established an L interest protected by the AEA that may be affected by the proceeding, the Commission : applies contemporaneousjudicial concepts of standing. See, e.g., Sccramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2, 35 NRC 47,56 - (1992); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25,18 NRC 327, 332 (1983); Ponland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 614 (1976). These standards ' 10 C.F.R. 6 2.714(d)(1) provides that, in considering petitions for leave to intervene or requests for hearing, the Commission or presiding officer shall consider, among other matters, the following factors: (i) The nature of the petitioner's right under the AEA to be made a party to the proceeding. (ii) The nature and extent of the petitioner's property, financial, or other interest in the proceeding.' (iii) The possible effect of any order that may be entered in the proceeding on the petitioner's interest. b:
- i "
- were recently reiterated by the Court in Lufan v. Defenders of Wildhfe, U.S. 112 S. Ct. 2130,2136 (1992): Over the years, our cases have established that the irreducible .} constitutional minimum of standing contains three elements:.. First, the plaintiff must have suffered an " injury in fact" -an invasion of a legally-protected interest which is (a) concrete and particularized, see id., [ Allen
- v. Wright, 468 U.S. 737, 756 (1984)]; Wanh v. Seldin,422 U.S. 490, 508 (1975). -.. ; Sierra Club v. Morton, 405. U.S. 727, 740-741, n.16 (1972)... ; and (b) " actual or imminent, not ' conjectural' or
' hypothetical,'" Whitmore [v. Arkansas, 495 U.S.149], at 155 (1990) (quoting Los Angeles v. Lyons,461 U.S. 95,102 (1983)). Second, there must be a causal connection between the injury and the conduct 1-complained of - the injury has to be " fairly... trace [able] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some third party not before the court." Simon v. Eastern Kentucky Welfarc Rights Org.,426 U.S. 26,41-42 (1976). Third, it must be "likely," as opposed to merely " speculative," that the injury will be " redressed by a favorable decision." Id. at 38,43 [ footnote omitted). Accord Lujan v. National Wildhfe Federation, 497 U.S. 871 (1990). These judicial concepts require a petitioner to " establish that he or she will suffer j a distinct and palpable harm that constitutes the injury in fact, that the injury can be traced fairly to the challenged action, and that the injury is' likely to be redressed by a favorable decision in the proceeding." Public Service Co. ofNew Hampshire (Seabrook 1 Station, Unit 1), CLI-91-14, 34 NRC 261, 266-67 (1991); Nuclear Engineering Co. 9 (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978) (there must be a concrete demonstration that harm could flow from the result of the licensing action). In an NRC license amendment proceeding, such as this, the petitioners must allege i a clear potential for offsite consequences that would cause an injury in fact' to the petitioner in order to establish standing to intervene under the Atomic Energy Act,42 - 4 _4_ ?
. U.S.C. f 2011, er seq. See Florida Power & Light Co. (St. Lucie Nuclear Power Plant, l Units 1 and 2), CLI-89-21,30 NRC 325,329-30 (1989). Edlow International Co. (Agent for the Government of India on Application to Export Special Nuclear Material), CL1-76-6,3 NRC 563,572 (1976), establishes that one i must show he would be actually harmed by the proposed federal action in order to ~ intervene; see also Foundation on Economic Trends v. Lyng,943 F.2d 79, 85 (D.C. Cir. 1991); Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2,35 NRC 47,57-58 (1992). The NRC took the position below that Mr. Mosbaugh had not established standing in this proceeding because he had not shown how he will be injured by the amendment transferring the license to operate Vogtle from the Georgia Power Co. to the Southern Nuclear Operating Co., or how any failure to grant the license amendment, which he opposes, will redress any purported injury. Both of these companies are subsidiaries of the Southern Company and largely have the same officers. LBP-93-5, at 3-4. The Staff I maintained that Mr. Mosbaugh had failed to show that the denial or grant of the amendment application will cause any change in the character of those operating the - Vogtle facilities. However, the Licensing Board in LBP-93-5, at 15, concluded: We find that there is adequate basis for Mr. Mosbaugh's contention that at least one senior officer of Southern Nuclear is lacking in character and competence and that Southern Nuclear lacks the integrity required of a Licensee for the operation of a nuclear po_wer plant. If this contention were sustained, we might direct that the license amendment be denied or conditioned on changes in the structure and personnel of Southern Nuclear. In view of the Licensing Board's authority to condition the grant of the proposed license amendment on changes being made in Southern Nuclear management, it is NRC
. Staff's p . position that relief could be granted redressing Mr. Mosbaugh's claimed 2-injury from the proposed license amendment. While such action might not fully redress potential harm because Southern Nuclear and Georgia Power largely have the same officers, an order prohibiting or limiting the activities of certain of these officers ai Vogtle might prevent potential harm from operation under the proposed transfer.7 Mr. Mosbaugh would have to pursue other legal avenues for reliefin connection with the present operating structure of the Vogtle plant, this would not moot the relief that may be granted by the ASLB in connection with the proposed organization which is the subject of this amendment. On this basis, it is the Staff's present position that relief could be granted, at least in part, redressing Mr. Mosbaugh's clain injury from the future management of Vogtle, and that he does have standing to intervene in the proceeding.' For the above stated reasons, the Staff opposes the Licensee's appeal of LBP-93-5, as the Licensing Board provided a basis for concluding that Mr. Mosbaugh has standing to intervene in this proceeding. Licensee argues that Mr. Mosbaugh's injuries might not be redressed by a Board 7 order conditioning approval of the license transfer amendment as "it is possible that GPC [ Georgia Pcwer Co.] would, instead not accept such conditions since it can continue operating Plant Vogtle under the current organizational structure." Licensee's brief at 26-27. However,10 C.F.R. f 2.107(a) provides that, " Withdrawal of an application after the issuance of a Notice of Hearing shall be on such terms as the presiding officers may prescribe." Thus, it is not clear whether the Licensee could or would reject an amendment conditioned so as to deal with Southern Nuclear's management. Nor, can it be stated with certainty what administrative action the Staff might take with respect to the-current organization if adverse findings are made concerning the proposed organization. 8 The staff does not question the Licensing Board's conclusion that Mr. Mosbaugh spends a substantial amount of time at the property he owns 35 miles from Vogtle and that he could be affected by operation of the plant. See LBP-93-5, at 19-20. I e a-,
- L B. The Issue of Character of A Proposed Licensee May Be Appropriate In A Proceeding Considering The Transfer of Operations Of A Facility The Licensee argues that it is improper for a Licensing Board to consider the character of a proposed transferee in a license amendment proceeding involving the - transfer of a license to operate a nuclear facility from one corporate entity to another. Licensee's Brief at 30-38. The NRC Staff disagrees. The cases cited by the Licensing Board, LBP-93-5, at 7-9, establish that character is germane to licensing, and that a license to operate a nuclear facility may not be held by one who does not have the character to operate the facility. The Commission has emphasized that the integrity, reliability and honesty of applicants may be a matter of serious concern in licensing prcceed:ngs. See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), CL1-85-9,21 NRC 1118, 1136-37 (1985); Houston Lighting & Power Co. (South Texas Project, Units 1-and 2) CLI-91-14, 34 NRC 261, 267 (1991). Further, as the Commission has recently indicated, while it was not appropriate to raise issues related to the character in a proceeding involving a transfer of ownership when a separate proceeding involving a transfer of operating authority was pending, such an issue would have been appropriate in the latter proceeding involving the authority to operate the facility. Public Service Co. of New Hampshire, CLI-91-14, 34 NRC at 267-68. There was no hint that the consideration of the character of a proposed operator might only be appropriate in an r initial licensing of a facility, but not in a license amendment proceeding which seeks permission to change the operator of the facility. Compare with Licensee's Brief at 38. Here the license amendment application involves the transfer of operational authority over - '4
i.'. 9 the Vogtle units from one company to another. This is a proper proceeding, if other -4 conditions for intervention are met, to determine whether the proposed plant operator had the character to operate and manage the plant. No special order of the Commission is necessary for the consideration of management character (e.g., integrity, reliability and honesty) in an appropriate proceeding considering a transfer of operational authority over a nuclear facility. CONCLUSION ~ For the above reasons, the Licensee's appeal of LBP-93-5 should be denied. Respectfully submitted, Edwin J. Reis Deputy Assistant General Counsel for Reactor Licensing Dated at Rockville, Maryland this 16th day of March 1993 P i o . @k)
i .p U59tc ' UNITED STATES OF AMERICA' NUCLEAR REGULATORY COMMISSION.93 tiQ 16 PS XO BEFORE THE COMMISSION ,y r : r .a < M. l'i s 1 In the Matter of ) ) Docket Nos. 50-424-OLA-3 ' GEORGIA POWER COMPANY, et al. ) 50-425-OLA-3 ) (Vogtle Electric Generating Plant ) Re: License Amendment Units 1 and 2) ) (Transfer to Southern Nuclear) ) ) i CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF IN RESPONSE TO LICENSEE'S. APPEAL OF LICENSING BOARD ORDER GRANTING PETITIONTOINTERVENE" - in the above-captioned proceeding have been served on the following by deposit in the-United States mail, first class, or as indicated by an asterisk through deIcsit in the Nuclear Regulatory Commission's internal mail system this 16th day of March 1993. Peter B. Bloch, Chairman
- Thomas D. Mmphy*
Administrative Judge Administrative Judge Atomic Safety and Licensing Board - Atomic Safety and Licensing Board Mail Stop: EW-439 Mail Stop: EW-439 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission + Washington, D. C. 20555 Washington, D. C. 20555 (301) 492-7285 (301) 492-7285 James H. Carpenter
- John Lamberski,.Esq.
Administrative Judge Arthur H. Domby, Esq. Atomic Safety and Licensing Board Trautman. Sanders Mail Stop: EW-439 Nationsbank Building, Suite 5200 U.S. Nuclear Regulatory Commission 600 Peachtree Street, N. E. Washington, D. C. 20555.' Atlanta, Georgia 30308 (301) 492-7285 (404) 885-3949 t .g .g. j.) yb;
p.. _ L, David'R.12wis, Esq. Adjudicatory File * (2) Shaw, Pittman, Potts and Trowbridge Atomic Safety and Licensing Board 2300 N Street, N. W. Panel Washington, D.C. 20037 Mail Stop: EW-439 L (202) 663-8007 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Michael D. Kohn, Esq. Stephen M. Kohn, Esq. Atomic Safety and Licensing Board - Kohn, Kohn and Calapinto, P.C. Panel
- 517 Florida Avenue, N. W.
Mail Stop: EW-439 Washington, D. C. 20001 U.S. Nuclear Regulatory Commission (202) 462-4145 Washington, D. C. 20555 Office of Commission Appellate Office of the Secretary * (16) Adjudication
- Attn: Docketing and Service Mail Stop: OWFN-16/G15 Mail Stop: OWFN-16/G15 l
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Edwin J. eis Deput Assistant General Counsel for Reactor Licensing 0 ,. *}}