ML20056E774
| ML20056E774 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 08/19/1993 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | GEORGIA POWER CO. |
| References | |
| CON-#393-14229 CLI-93-16, LBP-93-05, LBP-93-5, OLA, OLA-3, NUDOCS 9308250159 | |
| Download: ML20056E774 (32) | |
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'- Mz27 UNITED STATES OF AMERICA r NUCLEAR REGULATORY COMMISSION Commissioners: ~93 g 19 PC :23 l Ivan Selin, Chairman Kenneth C. Rogers ;
Forrest J. Remick ,
l E. Gail de Planque l
)
In the Matter of )
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GEORGIA POWER COMPANY, ) Docket Nos. 50-424 OLA-3 et al. ) 50-425 OLA-3
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(Vogtle Electric Generating )
Plant, Units 1 & 2) )
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}' SERVED AUG 1 9 1993 MEMORANDUM AND ORDER CLI-93-16 l
I. Introduction Georgia Power Company (GPC or licensee) has appealed the Atomic Safety and Licensing Board's Memorandum and Order, LBP 5, 37 NRC 96 (1993), which granted Allen L. Mosbaugh's petition for leave to intervene and for hearing on a propvand transfer of -
the licenses to operate the Vogtle Electric Generating Plant (Vogtle) Units 1 and 2. The proposed licensing action would
! transfer all operational control of Vogtle Units 1 and 2 from I
GPC, the present licensee, to Southern Nuclear Operating Company, '
l Inc. (Southern Nuclear). The Licensing Board granted Mr.
Mosbaugh standing and admitted a consolidated contention which alleges that Southern Nuclear lacks the requisite character and integrity to be a Commission licensee. On appeal, GPC argues i
that Mr. Mosbaugh's petition should have been wholly denied 1
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2 because Mr. Mosbaugh both lacks standing and failed to submit an admissible contention. Mr. Mosbaugh and the Nuclear Regulatory Commission (NRC) staff oppose GPC's appeal. For the reasons stated in this order, we deny the appeal and affirm the Licensing Board's admission of the petitioner as a party to this proceeding.
II. Background On October 14, 1992, the NRC staff published in the Federal Beoister a notice of opportunity for hearing on the proposal to transfer all operating authority over the Vogtle plant from GPC, the current operator, to Southern Nuclear. 57 Fed. Reg. 47,135 (Oct. 14, 1992). Southern Nuclear presently functions as an unlicensed support services company. If the transfer is approved, Southern Nuclear would have the exclusive authority to possess, manage, use, operate and maintain the facility. The proposed transfer would involve only the authority to operate Vogtle and would not change the ownership interests in the plant; l
GPC and the other named owners would continue to own the Vogtle plant in the same percentages as today.
Both GPC and Southern Nuclear are wholly owned subsidiaries of Southern Company. Southern Company incorporated Southern Nuclear in December 1990 for the purpose of consolidating within Southern Nuclear those Southern Company personnel engaged in nuclear operations. As a transitional stage prior to the l l
1 incorporation of Southern Nuclear, Southern Company organized the Southern Nuclear Operating Company (SONOPCO) " project." Numerous i
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P-t SONOPCO project -- now Southern Nuclear -- personnel are also ;
i officers of GPC. GPC explains that this process of " double-hatting" is a common method to maintain a licensed utility's l authority and control over transitional organizations, prior to the transfer of operating authority to a new affiliate.1 l l .. !
On October 22, 1992, Messrs. Allen L. Mosbaugh and Marvin B. l l l
! Hobby filed a joint petition to intervene and for hearing on the i proposed transfer of the Vogtle licenses. The petitioners ,
claimed that Southern Nuclear's management does not have the -
character, competence, or integrity to assure the safe operation i
of the Vogtle plant, and therefore should not become the !
licensee. Petition to Intervene and Request for Hearing of Allen i L. Mosbaugh and Marvin B. Hobby.at 2 (Oct. 22, 1992) [ hereinafter Petition]. In an unpublished order dated November 17, 1992, the Licensing Board concluded that Mr. Hobby, who alleged only injury l to his economic interests, had not demonstrated sufficient interest for standing and, accordingly, the Board dismissed Mr. ;
l Hobby's petition. Mr. Hobby has not appealed. Mr. Mosbaugh claimed that he resides within fifty miles of the Vogtle plant and will face increased risk of radiological harm as a consequence of the proposed transfer. The Board ordered Mr.
Mosbaugh to submit an amended petition, to contain both his particularized contentions and a more detailed statement of his contacts in the Vogtle plant area.
1 GPC's Brief in Response to the Board's January 15, 1993 Request for Information and Briefs at 18 (Feb. 4, 1993).
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GPC has claimed that the transfer would not result in any i significant change in nuclear operations personnel or support i organizations. Therefore, of particular note in this proceeding i
is the licensee's repeated assertion that even after the' transfer l of operating authority to Southern Nuclear, "the change in the l actual personnel in control of licensed activities will be insignificant. "2 For example, GPC states that once the proposed -l j transfer becomes effective, the on-site organization responsible j t
for operations at the facility will be transferred as a unit to !
Southern Nuclear.3 GPC claims that the transfer also would not !
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significantly alter off-site line management; three of.the four GPC officers who are the current Vogtle off-site managers are ;
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also officers of Southern Nuclear, and GPC states that upon the authorization of the transfer thsse three officers would continue i I
managing the plant, although they would do so only as officers of l 2
l Southern Nuclear, not of GPC. GPC thus characterizes the i i
proposed change as resulting primarily in a licensee name change, l l I not a change in the individuals managing the Vogtle plunt, and therefore not a change that would result in any new injury to Mr.
Mosbaugh.
In LBP-93-5, the Licensing Board determined that Mr.
Mosbaugh satisfied the Commission's requirements for both !
standing and an admissible contention, and admitted Mr. Mosbaugh 2
GPC's Brief in Support of its March 4, 1993 Notice of Appeal at 4 (Mar. 4, 1993) [ hereinafter GPC Appeal Brief].
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). j as a party to the proceeding. The Board rejected GPC's argument that Mr. Mosbaugh faces no injury as a consequence of the proposed transfer. The Board found that Mr. Mosbaugh resides periodically at a house located about 35 miles from the plant. ;
Mr. Mosbaugh was found to-have alleged, with an adequate basis, that the proposed transfer does not meet the NRC's safety l requirements, and that even though " material safety deficiencies he has alleged may already be occurring," the transfer of control !
from GPC to Southern Nuclear could affect Mr. Mosbaugh's health, safety, and property interests. 37 NRC at 98, 107. The Board also found three of the petitioner's submitted contentions acceptable, but in the interest of efficiency consolidated these .
into a single admitted contention. In essence, this contention ,
alleges that the authority to operate Units 1 and 2 should not be transferred to Southern Nuclear because the company lacks the ,
requisite character, competence, integrity, truthfulness, and ;
willingness to abide by regulatory requirements.
GPC has appealed the Licensing Board's decision pursuant to 10 C.F.R. 5 2.714a (1993). On appeal, GPC presents principally l l
four arguments. GPC claims that the Board erred in concluding l ,
that (1) the proceeding is an appropriate forum in which to I l
address Mr. Mosbaugh's allegations; (2) Mr. Mosbaugh demonstrated that he would sustain an injury in fact from the proposed transfer sufficient for standing; (3) the injury complained of is
. likely to be redressed by a decision favorable to.Mr. Mosbaugh; ,
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and (4) Mr. Mosbaugh satisfied the Commission's requirements concerning the admission of contentions.
Mr. Mosbaugh answers the licensee's appeal primarily with a l
defense of the Licensing Board's finding of standing. The staff, which initially had concurred with the licensee that Mr. Mosbaugh had not demonstrated injury, now supports the Licensing Board's finding of standing, based upon the Board's analysis of redressability. NRC Staff Brief in Response to Licensee's Appeal at 6-7 (Mar. 16, 1993). Staff has not taken a position on the adequacy of Mr. Mosbaugh's contentions.' The staff, however, maintains that the licensee's character can be an appropriate consideration in this proceeding.
III. Analysis A. Scope of the Proceedina Because this issue has importance to GPC's arguments on both M r . F. baugh's standing and his contention, we first add.ress GPC's claim that this proceeding is not an appropriate forum in which to address Mr. Mosbaugh's allegations. GPC emphasizes that character issues have not been considered in other transfer proceedings and that "[a]bsent specific direction from the
' However, in a " Partial Director's Decision Under 10 C.F.R.
S 2.206," DD-93-08, 37 NRC 314, 317-24 ( '3 9 3 ) , that was issued after the staff's brief was filed, the staff rejects the merits of one of the bases for Mr. Mosbaugh'r. contentions, i.e., the alleged de facto transfer of the lic9nses to Southern Nuclear.
Because some of the factual issues addressed in DD-93-08 overlap ;
with those now pending in this proceeding, we vacated DD-93-08 and remanded the petition to the staff for further consideration at the conclusion of this proceeding. See cenerally CLI-93-15, 38 NRC (July 14, 1993).
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Commission in enforcement proceedings, an applicant for a license transfer need only demonstrate financial and technical.
qualifications." GPC Appeal Brief at 43-44 (footnote omitted). .
GPC suggests that under Commission precedent the Commission
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permits inquiries into a licensee's character.only after the i initiation of enforcement actions. 142 a t 4 0-41.
i l We concur with the staff that the character of a proposed j i
licensee is an appropriate issue'in a proceeding to consider l
- transfer of operating authority. The. adequacy of a licensee's l l
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l corporate organization, and the integrity and competence of its !
management are certainly matters that the Commission may consider l in its licensing and oversight responsibilities under the Atomic f l Energy Act (AEA).5 Section 182a of the AEA authorizes the ,
Commission t, decide, by rule or regulation, what information is !
necessary to determine the qualifications of an applicant, j including the " character" of the applicant. See 42 U.S.C. j e
S 2232(a). Although the Commission has not enacted regulations l 1
that specifically refer to " character," it has considered the !
I character of licensees and' applicants when directly relevant to !
I the proposed action. .
i Commission precedent establishes that lack of either '
i technical competence or pharacter qualifications on the part of {
licensee or applicant is sufficient grounds for the revocation of ;
t a license or the denial of a license application. See Houston i l
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See AEA S 182a, 42 U.S.C. 2232(a); 10 C.F.R. I S 50.34 (b) (6) (1) .
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8 Lichtina & Power Co. (South Texas project, Units 1 & 2), CLI 32, 12 NRC 281, 291 (1980). The Commission has looked to whether a licensee's management displays the " climate, resources, l
attitude, and leadership" that the Commission expects of a f licensee.6 In making determinations about " integrity" or
" character," the Commission may consider evidence bearing upon the licensee's " candor, truthfulness, willingness to abide by l regulatory requirements, and acceptance of-responsibility to j protect public health and safety."7 The past performance of l management or high-ranking officers, as reflected in deliberate j violations of regulations or untruthful repcrts to the !
l Commission, may indicate whether a licensee will comply with- I agency standards, and will candidly respond to NRC inquiries.8 ;
Under 10 C.F.R. S 50.80(c), before the Commission may ,
approve an application for a transfer of license it must :
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determine that the proposed transferee is " qualified to be the holder of the license," and that the. transfer of the license is fi otherwise consistent with applicable provisions of law, and
{
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Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-9, 21 NRC 1118, 1137, aff'd sub nom. ID re Three Mile Island Alert. Inc., 771 F.2d 720 (3d Cir. 1985),
cert, denied, 475 U.S. 1082 (1986).
7 Id. at 1136-37.
. See Hamlin Testina Lab. Inc., 2 AEC 423, 428 (1964),
aff'd sub nom. Hamlin Testina Lab., Inc. v. AEC, 357 F.2d 632 (6th Cir. 1966).
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i 9 i Commission regulations and orders.' The regulation does not permit a lower standard of qualifications of a proposed ,
transferee than of an initial license holder. The predictive f findings that the Commission must make prior to the issuance of an initial license are no less relevant and no less applicable to l l
a proposal to change the operator of a nuclear facility. For l instance, the Commission may issue an operating license only I
after finding that there is reasonable assurance that the ;
i activities authorized by the operating license can be conducted !
without endangering the health and safety of the public, and that j such activities will be conducted in compliance with regulations. l 10 C.F.R. S 50.57 (a) (3) . These threshold determinations are l equally appropriate in a proposed transfer of operating authority l under a license to a new licensee. The integrity or character of f a licensee's management personnel bears on the Commission's ability to find reasonable assurance that a facility can be !
I safely cperatea. See Metropolitan Edison, CLI-85-9, 21 NRC at '
1140.
GPC would like us to view the proposed amendment as no more ,
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significant than a change of corporate name. But the [
I significance of a total transfer of operational control and j responsibility over a nuclear power plant licensed to operate at ,
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' See also AEA S 184, 42 U.S.C. S 2234 ("No license ... t shall be transferred, assigned or in any manner disposed of, voluntarily or involuntarily, directly or indirectly, through transfer of control of any license to any person, unless the ,
Commission shall, after securing full information, find that the !
transfer is in accordance with the provisions of this Act, and ,
shall give its consent in writing"); 10 C.F.R. S 50.54(c). !
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. 10 full power makes relevant to this proceeding the proposed licensee's integrity and willingness to abide by regulatory requirements. As staff has emphasized, the proposed transfer may not be approved "[i]f personnel who will be involved in the operation of the facility lack the character to operate the facility."'O A resolution of properly admitted contentions regarding character or integrity has a direct bearing on the f
Commission's ability to find that Southern Nuclear will operate '
the Vogtle facility in compliance with Commission rules, I
regulations, and the AEA, and without endangering the health and j safety of the public. l We do not mean to suggest that every licensing action throws open an opportunity to engage in a free-ranging inquiry into the
" character" of the licensee. There must be some direct and obvious relationship between the character issues and the i licensing action in dispute. Where, as here, the proposed action concerns the transfer of the license to a new organization and !
management that will be responsible for the safe operation of the i plant, character issues may be directly relevant.
B. Mr. Mosbauch's Standino We next turn to GPC's argument that Mr. Mosbaugh failed to i allege an injury both linked to the proposed transfer and i i
redressable by this proceeding, and that accordingly he lacks standing to intervene in this proceeding. To determine whether a 1D l NRC Staff Response to Licensing Board Questions at 6 (Feb. 5, 1993).
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11 petitioner has established sufficient interest to intervene in a !
proceeding the Commission has long applied judicial concepts of l l i j standing." For standing, a petitioner must allege an " injury ,
l j in fact" from the licensing action being challenged, and this l l injury must be to an interest arguably within the zone of interests protected by the governing statute.
The alleged injury j i
must be concrete and particularized, fairly traceable to the. !
t challenged action, and likely to be redressed by a favorable i I
decision. See cenerally Luian v. Defenders of Wildlife, 112 l
S. Ct. 2130, 2136 (1992); Eublic Serv. Co. of New Hampshire (Seabrook Station, Unit 1), CLI-91-14, 34 NRC 261, 266-67 (1991). ;
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Injury may be actual or threatened. Wilderness Soc'y v. Griles, l
I 824 F.2d 4, 11 (D.C. Cir. 1987).
l The standing dispute in this appeal centers on the nature !
i and redressability of Mr. Mosbaugh's injury,'not on whether that I l
- injury is to an interest that falls within the " zone of f interests" protected by the AEA. Because GPC anticipates that the proposed transfer will result in only what it deems to be a negligible change in personnel, the licensee argues that Mr.
Mosbaugh faces no potential injury from the transfer. GPC states that "the only anticipated change in personnel at this time is that the Executive Vice President of GPC (who is also the President of Southern Nuclear) will no longer report to the 1
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~ " See Sacramento Mun. Util. Dist. (Rancho Seco Nuclear ,
GenLrating Station), CLI-92-2, 35 NRC 47, 56 (1992), aff'd, Environmental & Resources-Defense Conservation Oro. v. NRC, No.
92-70202 (9th Cir. June 30, 1993). ;
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- , 12 I i President of GPC but will instead report solely to the Board of Directors of Southern Nuclear," and that this reporting change is !
i insignificant because the president of GPC will remain a member of the Board of Directors of Southern Nuclear. GPC's Answer to Petition at 11 & n.5. GPC thus concludes that no potential for adverse off-site consequences will arise from the assumption of operating responsibilities by Southern Nuclear. Id2 For the ,
same reason, the licensee emphasizes that the injury of which Mr.
Mosbaugh complains, if it exists, would not likely be redressed by a decision favorable to him, but would exist regardless of j whether the transfers are granted or denied. GPC's Appea] Brief ,
at 20, 27. We address injury and redressability separately and i seriatim.
- 1. Iniury in Fact to Mr. Mosbauch's Interests !
Mr. Mosbaugh predicates his alleged injury upon his contacts in the area near the Vogtle plant, namely periodic residence at a house in Groveton, Georgia, 1 ated approximately 35 miles from the plant. Mr. Mosbaugh alleges that the management of Southern Nuclear lacks the character, competence, and integrity to safely operate the Vogtle plant, and lacks the candor, truthfulness, and willingness to abide by the regulatory requirements necessary to operate a nuclear facility. Petition at 1-2. More specifically, Mr. Mosbaugh alleges that the highest levels of Southern Nuclear's management intentionally submitted material false
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. l 13 information to the NRC in a Licensee Event Report.12 Mr.
- Mosbaugh further claims that Southern Nuclear managers >
deliberately submitted additional material false statements to the NRC staff to obstruct an NRC investigation by the Office of Investigations (OI). Amended Petition at 16-19. Moreover, Mr. j Mosbaugh alleges that Southern Nuclear officials, in violation of NRC regulations and of the Georgia Power Company's license, used legal and illegal methods to " wrench the control of Plant Vogtle" l from GPC and, as a result, GPC, the current licensee, has ceased l
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to be in control of operations at the plant.u ;
Mr. Mosbaugh submits that at the time that Georgia Power !
Company received its operating license, GPC personnel had the requisite integrity and abided by safety regulations," but over ,
i j time GPC's previous " management team was reconfigured to >
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I accommodate the Southern Company's establishment of SONOPCO. As j a result of this transition all of GPC's line managers over the !
plant manager have been replaced."" This new management team f
f 12 Amendments to Petition to Intervene and Request for Hearing at 15-16 (Dec. 9, 1992)[ hereinafter Amended Petition). I i
u Transcript of January 12, 1993 Prehearing Conference at 67-71 [ hereinafter Prehearing Conference Transcript)(remarks by Mr. Mosbaugh's counsel); see also Amended Petition at 5-14; Petitioner's Brief in Response to the Board's Request for I Information at 1-5 (Feb. 5, 1993); Allen L. Mosbaugh's Brief in i opposition to GPC's Appeal of the Licensing Board's Feb. 18, 1993 i Memorandum and Order at 4-7 (Mar. 22, 1993). >
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" See, e.a., Petitioner's Brief in Response to Board's l Request for Information at 4 n.4; Prehearing Conference ,
Transcript at 109. '
" Petitioner's Brief in Response to the Board's Request for i Information at 4 n.4.
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. -j 14 l chosen to staff Southern Nuclear allegedly has evinced a l willingness to risk safety and deceive the NRC."
Mr. Mosbaugh concludes that the influence of Southern l Nuclear management personnel at Vogtle resulted in a corporate culture prone to taking risks in areas of safety.57 Due to the alleged "new corporate milieu"1s of intentional corporate ;
l misconduct by top management at Southern Nuclear, the pet 1tioner i argues that a transfer of operational authority to Southern ,
l Nuclear would " encourage Southern Nuclear management to engage in l:
l the very type of misconduct Mr. Mosbaugh' fears could result in a !
nuclear accident," and thus would increase the possibility of ;
l l an accident and "otherwise represent [] an unsafe operating
- i condition." Amended Petition at 3. Thus, Mr. Mosbaugh emphasizes that the formal transfer of operating control to I i
Southern Nuclear will ratify a management organization that has i t
violated and currently is in violation of Commission l
t requirements, and that a transfer to individuals who tolerate -- !
if not encourage -- violations will place him, by virtue of his i
l 16 Id ; Prehearing Conference Transcript at 71.
Consequently, the petitioner argues that "it is incumbent upon GPC to show that the proposed ngw management of Southern Nuclear
-- not the old management of GPC -- has the requisite character and integrity to operate a nuclear facility."' Petitioner's Brief in Response to the Board's Request for Information at 6. -
17 Prehearing Conference Transcript at 71-72.
'8 Id t at 71.
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Petitioner's Brief in Response to the Board's Request for Information at 6-7.
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15 l frequent presence in the plant area, at greater risk of radiological injury.
For proceedings involving the issuance of a construction permit or operating license, the Commission generally has recognized a presumption in favor of standing for those petitioners who have sufficient contacts within the geographic area that could be affected by a release of fission products.
See, e.o., Viroinia Elec. & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-522, 9 NRC 54, 56 (1979) (VEPCO) .
Especially given the possible health consequences of accidental releases, the siting of a plant in a petitioner's environment may be deemed a direct and present injury. Duke Power Co. v.
Carolina Enytl. Study Group. Inc., 438 U.S. 59, 74 (1978).
However, the Commission has stressed that this presumption in favor of an interest to intervene applies only in " proceedings for construction permits, operating licenses, or significant amendments thereto," where the proposed action involves " clear implications for the offsite environment, or major alterations to the facility with a clear potential for offsite consequences."
Florida Power & Licht Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329 (1989) (St . Lucie). In the absence of "such obvious potential for offsite consequences, a petitioner must allege some specific ' injury in fact' that will result from the action taken." Id. at 330. For example, <
proximity alone did not establish the requisite injury far I standing in St. Lucie because the proposed action primarily 1
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affected the occupational safety of workers in radiation areas within the plant, and posed no readily apparent potential for safety consequences to the offsite public. .
The Licensing Board concluded in LBP-93-5 that Mr. t Mosbaugh's petition satisfies threshold standing requirements.
The Board determined that the petitioner owns a house located approximately thirty-five miles from the Vogtle plant, and since August 1991 has resided at this home approximately one week each month. 20 The Licensing Board determined that the proposal to transfer operational authority to Southern Nuclear presents an
" obvious potential for offsite consequences," and that, accordingly, because of his frequent presence near the plant Mr. '
Mosbaugh had adequately established an interest to intervene.
LBP-93-5, 37 NRC at 108. The Board reasoned that allegations of t
! intentional withholding of safety-related information by key Southern Nuclear officials pertain to the plant's overall safety, and "[t]he risk of non-safety-conscious management is as great as ,
many other risks that could be adjudicated in an operating license case." Id.
On appeal, GPC contests the Board's conclusion that the proposed action in'rolves an obvious potential for offsite consequences. To the licensee, the proposed amendments involve 20 37 NRC at 107. In response to Mr. Mosbaugh's petition, the licensee had challenged Mr. Mosbaugh's assertion that he resides in Georgia. The Board reached its findings about Mr.
Mosbaugh's contacts in the Vogtle plant area based upon supplemental filings and an evidentiary hearing held January 12, 1993.
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17 "little more than a name change" since any change in the personnel who will control licensed activities will be minor.
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( GPC Appeal Brief at 15-16. GPC therefore claims that the transfer of operating control poses no injury to Mr. Mosbaugh. i We concur with the Licensing Board that Mr. Mosbaugh l sufficiently has alleged an injury linked to the proposed I
l amendments. Mr. Mosbaugh has establ!.shed in the Board's estimation regular, though intermittent, residence near the plant. Compare VEPCO, 9 NRC at 57 (periodic recreational activity). A request to transfer full operating authority over a power reactor may be deemed a "significant" amendment or action involving " clear implications for the offsite environment," for purposes of determining threshold injury.
l We agree with the petitioner that although key officers at I
Southern Nuclear may already be in manugerial roles as GPC 1 officers at Vogtle, the officers' current presence at Vogtle does not obviate the need for Southern Nuclear to show that it has the willingness to follow NRC regulatory requirements before the l l
1 company is granted the responsibility for the plant's operations.
1 Amended Petition at I n.1. As staff counsel stated before the j Licensing Board, " character has to be looked at, even though it appears to us that these are the same people named both times .... To issue a license amendment ... would be an 1
indication that the NRC in some way says at that point character .
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. was [ acceptable] in the past and that character can continue into l
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1 18 the future. " 21 Thus, we cannot accept at this threshold stage j GPC's conclusion that no injury would result from transferring l l
i responsibility for safe operation to persons in Southern Nuclear's corporate management who are alleged to have violated agency regulations and to have submitted false information to the NRC. Given the need to ensure before the licenses are ,
transferred that Southern Nuclear's management will operate the Vogtle facility consistent with regulatory requirements, we will assume that the transfer has potentially significant public ,
health and safety implications.
I GPC's approach would have us ignore matters concerning the individuals filling positions in the new organization simply because they presently occupy similar positions of responsibility in the old one. This approach would insulate the proposed licensee from scrutiny for reasons having nothing to do with the relevance of the matters to the licensing action at issue or with -
the specificity of the allegations.22 .
l 21 Prehearing Conference Transcript at 99-100.
22 The licensee states that the Licensing Board's ruling i directly conflicts with petroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 386, aff'd, ALAB-470, 7 NRC 473 (1978) (Fermi) . GPC's Appeal Brief at 35-36. Fermi ;
involved a proceeding to amend a construction permit to add new co-owners. The Licensing Board in Fermi concluded that the scope j of the proceeding did not encompass consideration of whether '
Detroit Edison had violated Commission regulations by transferring ownership interests in advance of Commission action on the proposed amendment. GPC claims that the Licensing Board in LBP-93-5 should have rejected Mr. Mosbaugh's allegations because he likewise seeks only to litigate historical allegations. We i find the instant case distinguishable. Here, Mr. Mosbaugh ;
l claims that Southern Nuclear personnel currently lack the l (continued...) !
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Whether some or even all of the key personnel are already j managing the facility does not eliminate the implications of j granting total control over operations to corporate management alleged to be lax on safety. If Mr. Mosbaugh's allegations are j i
correct, the license transfer would act to ratify and reward corrupt management. The Commission has acknowledged that high-t level management plays a significant role in assuring'"that a proper attitude is followed throughout the organization." l l
Metropolitan Edison Co. (Three Mile Island Nuclear Station, i Unit 1), CLI-85-9, 21 NRC 1118, 1139 (1985). In assessing ;
I threshold standing, we simply cannot conclude that Mr. Mosbaugh ,
i would not face increased risk of radiological injury from a [
formal transfer of operating responsibility to an organization !
i whose high-ranking officers are allegedly willing to violate j i
safety regulations.
GPC itself has stressed the significance of the authority l and " final say," so to speak, exercised by the company' named as l the exclusive operating licensee. For instance, under the l current license, in an irreconcilable dispute between the president and chief executive officer (CEO)_of GPC and the president and CEO of Southern Nuclear over whether an employee of !
22 ( . . . continued) :
character to operate the plant. This claim is based on alleged l intentional. violations committed by Southern Nuclear officers, i which are cited to depict an alleged corrupt management ,
organization that is unfit to operate a nuclear power plant. I There were no such allegations about the character of the new co- !
owners in Fermi; whether Detroit Edison had violated Commission '
regulations in the past simply had no relevance to'that :
proceeding. ;
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. 20 GPC should be fired, the GPC president, as president of the licensee, would prevail.3 A " double-hatted" officer of GPC and Southern Nuclear stressed that if such a conflict "can't be l ironed out, obviously, the stronger. hand in this is [the current :
licensee) .... [T]he sanctity of the license.and responsibility !
is absolute. There can never be a dilution ... in the sanctity i of that operational responsibility.u24 Quite simply, transfer -
of the license will mean that a different corporate entity, f I
Southern Nuclear, will be responsible for activities at Vogtle.
Even if the same personnel will be operating the plant on the day !
after the transfer, they will be reporting to a different :
organization. This new organization will have the ability to replace the plant management and affect plant operation in any ;
l number of ways. ,Thus, we do not accept GPC's argument that the :
amendments represent nothing more than a corporate "name change." !
i U
See Transcript of Public Meeting on Implementation of Southern Nuclear Operating Company at 39 (Jan. 11, 1991) )
(referring to analogous hypothetical dispute between the presidents of Alabama Power Company and Southern Nuclear), '
attached to GPC's Response to the Board's Jan. 15, 1993 Request for Information (Feb. 4, 1993). The licensee emphasizes that after the transfer the only change in line management personnel l
responsible for licensed activities will be that Mr. Mcdonald, a senior officer at GPC and Southern Nuclear, will no longer report to Mr. Dahlberg, the president of GPC, and instead will report to l
the Board of Directors of Southern Nuclear. The licensee submits that this change will be insignificant because Mr. Dahlberg is on the Southern Nuclear Board of Directors. At this point, in j determining threshold standing, we are not prepared to resolve the extent to which the license transfer may result in any changes in the relative influence of personnel at the Vogtle facility, and if so, what the effects might be of such a shift in influence.
24 Id. at 39.
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w v i, -
. 21 If a licensing action involves an obvious potential for off-site consequences, the petitioner need not meet the heightened requirement under St. Lucie for specification of the " injury in fact" that will result from the action taken, nor must the petitioner particularize the causal relationship between the alleged injury and the results of the proceeding. See St. Lucie, 30 NRC at 329-30; VEPCO, 9 NRC at 56. Mr. Mosbaugh's intermittent residence in the plant's vicinity, coupled with his allegation that personnel of the company that will be authorized to control the Vogtle facility lack the integrity to operate the plant safely, is sufficient to meet the " injury" requirement for standing in this proceeding.
- 2. Redressability of Mr. Mosbaugh's Iniury Notwithstanding a finding of injury to Mr. Mosbaugh's interests, GPC contends that Mr. Mosbaugh cannot satisfy the redressability component of the standing test. GPC argues that even if Mr. Mosbaugh's claims are adjudicated and found to have merit, with the result that the transfer is disapproved, his asserted injury would not be redressed by this proceeding.
1 Disapproval of the transfer, GPC argues, will merely leave the plant under its present management, which employs the same personnel whose integrity Mr. Mosbaugh is attacking. Therefore, this argument goes, a hearing on Mr. Mosbaugh's contentions cannot result in any relief from his claimed injuries, and his case for standing fails the redressability test.
__ ________._______.__m_ - - _ _ _ _ . . _ . _ _ _
l
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l 22 We find GPC's argument unpersuasive. The underlying j i
i implication of GPC's approach is that approval of the proposed transfer would in fact be an action of no real consequence or i
significance. But an adjudication which ended by confirming Mr.
Mosbaugh's allegations about the unfitness of Vogtle management, P
if upheld on further administrative review, most assuredly would l do more than simply result in denial of the transfer amendment.
l Mr. Mosbaugh's asserted injuries would be redressed if he should prevail in this proceeding or even partially prevail. For example, as the Licensing Board suggested, Mr. Mosbaugh could '
obtain relief if the transfer was granted subject to changes in the structure and personnel of Southern Nuclear.25 As the staff states, "an order prohibiting or limiting the activities of certain of these officers at Vogtle might prevent potential harm from operation under the proposed transfer."26 Moreover, 25 LBP-93-5, 37 NRC at 105. GPC argues that the Board erred in suggesting its own theory of redressability, unadvanced by the petitioner. GPC's reliance on Commission precedent to support this argument is misplaced. In Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2 & 3), CLI-91-12, 34 NRC 149, 155-56 (1991), the Commission held that licensing boards may not freely infer bases for contentions in framing specific issues for litigation once standing is established.- We do not believe that this decision can be read to prohibit the Board from considering generally the reach of its jurisdiction to fashion a remedy in determining redressability.
26 NRC Staff Brief in Response to Licensee's Appeal at 7.
GPC submits that if the Board were to approve the amendments subject to conditions that GPC found unacceptable, GPC might simply reject those conditions "since it can continue operating Plant Vogtle under the current organizational structure." GPC-Appeal Brief at 26-27. GPC, however, may not unilaterally withdraw its application. The Commission provides under 10 C.F.R. S 2.107(a) that "[t]he commission may permit an applicant (continued...)
i
.. 23 1-I determinations made in this proceeding, i.e., a finding of l
adverse character, would have a collateral estoppel effect on l
related licensing actions or in later proceedings brought on the ;
same f acts.27 The consequence of such adverse findings resulting from the litigation of Mr. Mosbaugh's allegation is t fairly a result of this proceeding. Thus, the petitioner's !
, alleged injury is "likely to be redressed by a favorable 1
decision." Simon v. Eastern Kv. Welfare Richts Ora., 426 U.S.
26, 38 (1976).
The licensee notes that in Public Serv. Co. of New Hampshire (Seabrook Station, Unit 1), CLI-91-14, 34 NRC 261 (1991) (Seabrook) , which also involved allegations about character, the Commission denied standing to the Seacoast Anti-Pollution League (SAPL) for failure to demonstrate that its l
l alleged harm would abate by a favorable decision. However, Seabrook is distinguishable on its facts. Fearing the alleged 26 ( . . . continued) to withdraw an application prior to the issuance of a notice of hearing on such terms and conditions as it may prescribe, or may, ;
on receiving a request for withdrawal of an application, deny the i application or dismiss it with prejudice. Withdrawal of an l application after the issuance of a notice of hearing shall be on such terms as the presiding officer may prescribe." See also Seouovah Fuels Coro., CLI-93-7, 37 NRC 175, 179 (1993); Pacific Gas & Elec. Co. (Stanislaus Nuclear Project, Unit 1), CLI-82-5, 15 NRC 404, 405 (1982).
27 Collateral estoppel principles may be applied by the l
Commission in administrative proceedings to bar re-litigation of previously resolved factual issues. See Alabama Power Co.
. (Joseph M. Farley Nuclear Plant, Units 1 & 2), ALAB-182, 7 AEC !
210, 214, remanded on other arounds, CLI-74-12, 7 AEC 203 (1974); {
Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant),
ALAB-837, 23 NRC 525, 536 (1986).
1 i
l I
I l
1
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24 j corrupt influence of Northeast Utilities (NU) management on NU's subsidiaries, SAPL challenged a proposed transfer of a i
substantial ownership interest in the Seabrook plant from Public l, Service Company of New Hampshire to NAEC, an NU subsidiary. Yet SAPL failed to respond to a notice of a separate proposed amendment to transfer operational authority to NAESCO, another NU j subsidiary. This second proposed amendment authorized NAESCO to manage, operate, and maintain the Seabrook facility, actions central to the petitioner's fears of unsafe operation. As a ,
result, the Commission found that SAPL's alleged injury would not be redressed by the denial of the proposed transfer of an !
ownership interest to NAEC. 34 NRC at 268. Unlike Seabrook, Mr. . !
j i
Mosbaugh's alleged injury stands to be redressed by a favorable i
decision in this proceeding.
C. Admission of the Consolidated Contention To be admitted as a party, a petitioner for intervention must not only establish standing, but must also proffer at least ,
i one admissible contention. Commission regulations under 10 !
C.F.R. SS 2.714 (b) (2) and (d) (2) establish the standards for an !
admissible contention. Section 2.714 (b) (2) mandates that a !
i contention include a specific statement of the issue of law or '
fact to be raised or controverted, a brief explanation of the bases of the contention, and a concise statement of the alleged i
facts or expert opinion which support the contention, together with references to those specific sources and documents on which the petitioner intends to rely to prove the contention.
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25
. i Additionally, the petitioner must present sufficient information to show that a genuine dispute exists with the applicant on a !
material issue of law or fact. Asserted contentions must fall j l
within the scope of the issues set forth in the notice of the l
proposed licensing action. See Public Serv. Co. of Indiana f (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-316, f i
3 NRC 167, 170-71 (1976). i The Licensing Board found admissible three of Mr. l t
Mosbaugh's proffered contentions, all of which related to the l
character of Southern Nuclear's management. A fourth contention
{
focused upon Southern Company, the parent company of GPC and ,
Southern Nuclear; the Board rejected this fourth contention for i l
lack of an adequate basis for questioning the character of i
Southern Company. LBP-93-5, 37 NRC at 105. In brief, the bases ,
for Mr. Mosbaugh's contentions concerned (1) whether the !
formation of Southern Nuclear's relationship to the Vogtle plant, t particularly the alleged illegal transfer of operating authority, evidences a lack of trustworthy character in Southern Nuclear's i management, and (2) whether high-ranking officers of Southern Nuclear intentionally submitted material false statements to the NRC concerning the March 1990 site area emergency and resumed i
operation after that event. See idz at 102-03, 104-05. In the !
interest of efficiency, the Board consolidated the three admissible contentions into the following single contention:
The license to operate the Vogtle Electric Generating Plant, Unit 1 and 2, should not be transferred to Southern Nuclear Operating company, Inc., because it lacks the requisite
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1 6 ..
4 l* 26 I .
character, competence and integrity, as well !
as the necessary candor, truthfulness and willingness to abide by regulatory requirements.
Id. at 110.
On appeal, GPC argues that the Licensing Board erred in -
concluding that Mr. Mosbaugh satisfied the Commission's requirements concerning the admission of contentions. GPC claims ,
that Mr. Mosbaugh's contentions lacked either factual or legal basis. GPC Appeal Brief at 30. Specifically, GPC submits that l
the Board incorrectly found that Mr. Mosbaugh satisfied the Commission's contention requirements under 10 C.F.R. >
5 2.714 (b) (2) (iii) . Idz This provision mandates that the i petitioner provide the following as to each contention: i
, Sufficient information ... to show that a l l genuine dispute exists with the applicant on !
a material issue of law or fact. This showing must include references to the specific portions of the application ... that the petitioner disputes, or, if the .
petitioner believes that the application !
fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief.
10 C.F.R. 5 2.714 (b) (2) (iii) .
GPC argues that the petitioner failed to identify any error or omission in GPC's application, and that the Licensing Board improperly implied that the licensee was required to include Mr.
Mosbaugh's allegations in its applications and that GPC's failure to do so constituted an omission. GPC Appeal Brief at 31. In this regard, the Licensing Board stated:
.~
27 We note that 10 CFR S 2.714 (b) (2) (iii) requires the specification of how the application fails to contain information that it should contain. In this instance, Mr.
Mosbaugh has alleged material facts that are relevant to the application. The omission of these facts from the application is not surprising, since they are adverse to the interest of the Applicant. Consequently, Mr.
Mosbaugh fulfills the requirements of this section because the omission from the e application of the facts he has alleged is !
material to proper consideration of the i amendment. l 37 NRC at 103-04. GPC stresses that the Board's suggestion that [
I GPC should have included the petitioner's allegations is unreasonable because "[n]owhere in the regulations is there any l l
requirement that an applicant for a license transfer elaborate on [
i its ' character'." GPC Appeal Brief at 31.
l We disagree with the Licensing Board's reasoning to the extent that it may suggest that the petitioner satisfied the I requirements under 10 C.F.R. S 2.714 (b) (2) (iii) because the l licensee "omitted" from its application Mr. Mosbaugh's j
.I allegations about Southern Nuclear's character._ The Licensing j Board's approach relies upon a legal ~ fiction that is neither contemplated under our regulations nor necessary to satisfy them. ):
We accept arouendo that Commission regulations did not require GPC to include references to character allegations in its application. However, in fairness, we cannot then require that e
to adequately specify a dispute over a material fact, a petitioner must refer to a particular portion of the licensee's application, when the licensee neither identified, nor was obligated to identify, the disputed issue in its application.
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. 28 Such a narrow reading of section 2.714 (b) (2) (iii) would have the unintended effect of prohibiting petitioners from raising issues otherwise germane to a proceeding.
Under section 2.714 (b) (2) (iii) , if an application contains disputed information or omits required information, the petitioner normally must specify the portions of the application that are in dispute or are incomplete. But the rule is not intended to preclude contentions that rest on relevant matters !
not required to be specifically addressed in the application. As we noted in the Statements of Consideration accompanying the revised contention rule: I Where the intervenor believes the application and supporting material do not address a relevant matter, it will be sufficient for the intervenor to explain why the application is deficient.
54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989). Thus, section
- 2. 714 (b) (2 ) (iii) only requires the petitioner to identify the !
disputed portion of the application or the omission of required information if the disputed matter is actually considered or is required to be considered in the application. In this special circumstance, no purpose would be furthered by requiring Mr.
Mosbaugh to identify a specific portion of GPC's application, when the licensee had no requirement to refer to " character."
The licensee also argues that the Board should have found Mr. Mosbaugh's contentions inadmissible because the factual bases l
l for his contentions do not raise any concern with chances in personnel who operate plant Vogtle that would occur upon the l
1 I
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29 3
issuance of the proposed license amendments. GPC Appeal Brief at
- 34. GPC argues that the petitioner failed to demonstrate a nexus between the contentions and this proceeding. Idz at 35. This argument in effect goes to the petitioner's standing, which we have discussed in section III.B of this decision. l The remainder of GPC's challenge to the contention concerns P
the claim that Mr. Mosbaugh's contention is not appropriate for resolution in this proceeding because character issues are not !
generally addressed in transfer amendment proceedings.28 For !
reasons already outlined in section III.A. of this opinion, we have decided that this transfer proceeding is an appropriate forum in which to address character issues. We believe that our l contention rules provide reasonable discipline when character is a relevant inquiry to ensure that a licensee is not subjected to defending frivolous or unspecific claims. For this reason, our rules require the intervenor to articulate particular contentions and the bases therefor to ensure reasonable specificity and adequate notice of the matters being raised against the proposed I
action, and to ensure the existence of a genuine dispute of law or fact. See 54 Fed. Reg. 33,168-70 (Aug. 11, 1989) ; Texos Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 1),
i j
ALAB-868, 25 NRC 912, 932-33 (1987). In this regard we note, 28 GPC claims that the Licensing Board improperly inferred a legal basis for Mr. Mosbaugh's contention. GPC Appeal Brief at ,
. 33-34 (citing LBP-93-5, slip op. at 7). We disagree. We view l the Board only as finding character legally germane to the grant of the proposed license transfer. The Board adds nothing to the contention or the bases proffered by Mr. Mosbaugh.
l
a
'* 30 i too, that an intervenor is not free to change the focus of an I e
admitted contention at will as litigation progresses, but is 1aund by the terms of the contention." f 1
V. Conclusion For the reasons stated in this decision, Georgia Power company's appeal is denied and the Licensing Board's order in .
LBP-93-5 admitting Mr. Mosbaugh as a party and admitting the l consolidated contention, is affirmed.
It is so ORDERED..
4N #
For the Commission 30
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- d W SAMUEL J CHILK Secretary of e Commission I
Dated at Rockville, Maryland, this dEday of August 1993. ;
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" See Public Serv. Co. of New Hamoshire (Seabrook Station, '
Units 1 & 2), ALAB-899, 28 NRC 93, 97 n.11 (1988), aff'd sub nom.
Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir. ) , cert, denied, 112 S. Ct. 275 (1991).
3D Commissioner Remick was not present for the affirmation of this Order; if he had been present, he would have approved it.
l l
- . _-. = - . -. .- ___ _ _ - _ _
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UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION l l
I In the Matter of l
GEORGIA POWER COMPANY, ET AL. Docket No.(s) 50-424/425-OLA-3
' .I I
(Vogtle Electric Generating Plant, Units I and 2) .
i CERTIFICATE OF SERVICE l I hereby certify that copies of the foregoing CLI-93-16 DATED 8/19/93 have been served upon the following persons by U.S. mail, first class, except l as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712. ;
l 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 l l l
Administrative Judge Administrative Judge l
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 Mitzi A. Young, Esq. John Lamberski, Esq. l' 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.
l Atlanta, GA 30308 j Ernest L. Blake, Jr., Esq. Michael D. Kohn, Esq. :
David R. Lewis, Esq. Stephen M. Kohn, Esq.
Shaw, Pittman, Potts & Trowbridge Kohn, Kohn & Colapinto, P. C.
2300 N Street, N.W. 517 Florida Avenue, N.W.
Washington, DC 20037 Washington, DC 20001 e
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$* l Docket No.(s)S0-424/425-OLA-3 j CLI-93-16 DATED 8/19/93 l
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i C. K. McCoy !
i V. President Nuclear, Vogtle Project i Georgia Power Company ;
Post Office Box 1295 i Birmingham, AL 35201 l
Dated at Rockville, Md. this '
. [
19 day of August 1993 ,
3 Office of the p retary of the Commission s
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