ML20077C129
| ML20077C129 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 11/21/1994 |
| From: | Kohn M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#494-16021 OLA-3, NUDOCS 9411300345 | |
| Download: ML20077C129 (13) | |
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00CKETED UNITED STATES OF AMERICA USHRC NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 94 NOV 22 P 3 53
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Of f ibl,J -a t _itsitY
-r In the Matter'of
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5 0 - 4 2 Of6bE-3 [j,'";~
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Docket Nos.
GEORGIA POWER COMPANY
)
50-425-OLA-I
-g al.,
)
)
Re: License Amendment (Vogtle Electric Generating
)
(transfer to Southern Nuclear)
Plant, Unit 1 and Unit 2)
)
)
INTERVENOR'S PETITION FOR APPEAL OF THE LICENSING BOARD'S DECISION TO GRANT PARTIAL
SUMMARY
DISPOSITION OF THE ILLEGAL LICENSE TRANSFER ISSUE i
Respectfully submitted by:
1 l
Michael D. Kohn Mary Jane Wilmoth KOHN, KOHN'& COLAPINTO, P.C.
517 Florida Ave.,
N.W.
Washington, D.C.
20001 (202) 234-4663 Atterneys for the Intervenor i
November 21, 1994 i
9411300345 941121 hfD I
PDR ADOCK 05000424 G
c UNITED STATES OF AMERICA
~
NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In.the Matter of
)
)
Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY
)
50-425-OLA-3 i
g al.,
)
)
Re: License Amendment (Vogtle Electric Generating
)
(transfer to Southern. Nuclear)
Plant. Unit 1 and Unit 2)
)
INTERVENOR'S PETITION FOR APPEAL f
OF THE LICENSING BOARD'S DECISION TO GRANT PARTIAL
SUMMARY
DISPOSITION OF THE ILLEGAL LICENSE TRANSFER ISSUE Pursuant to 10 C.-F.R.
S2.786 (b) (4) and (g) (2), Allen L.
Mosbaugh, Intervenor in the above-captioned matter petitions the Commission for review c' M
>randum and Order LBP-94-37 (Summary Disposition: Illegal Transu ;r Allegation)
("M&O") issued by the i
Atomic Safety and Licensing Board
(" Board") on November 8, 1994.
I.
BACKGROUND Georgia Power Company ("GPC"), Licensee in the above-captioned matter, filed a motion for summary disposition on
. August 24, 1994, to which Intervenor tiled a response on October 4,
1994.1 Intervenor's response to summary disposition set forth evidence sufficient for the Board to conclude for the ra pose of summary disposition, that a triable issue existed as to whether GPC improperly transferred or assigned control of I
licensed responsibilities, directly or indirectly, in violation.
of Section 184 of the Atomic Energy Act by failing to obtain, in f
i writing, approval from the Commission to allow the SONOPCO i
1 Additional pleadings, including NRC Staff's response and motions to strike filed by Intervenor and Licensee, were also filed.
These additional filings do not address the issues raised in the appeal.
9
project, under the auspices of Mr. Joseph Farley, who commenced exercising operating authority over GPC's nuclear power plants in 1988.2 On November 8, 1994 the Board issued its M&O, denying Intervenor the right to a hearing on whether an illegal transfer of the license had, in fact, occurred' and, sua sponte, holding that Intervenor had abandoned his assertion that the transfer had an adverse impact on management's attitude toward safety.'
II.
SUMMARY
OF DECISION RIPE FOR APPELLATE REVIEW Intervenor contends that certain findings and rulings of Board will have a pervasive affect on the basic structure of this 2
Section 184 of the Atomic Energy Act, titled
" Alienability of Licenses," provides:
No license granted hereunder shall be transferred, assigned or in any matter disposed of, either 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.
The record demonstrates that the Commission never gave its consent in writing to transfer any operational authority to the SONOPCO project and/or to Mr. Farley.
Intervenor contends that GPC-did, in fact, transfer operating authority to the SONOPCO project (operating as an unincorporated Southern Company subsidiary), with Mr. Farley serving as its chief executive.
3 Instead, the Board concluded that illegal transfer of control was not sufficient to allow Intervenor a remedy.
The Board further determined that Intervenor must show that Licensee made false or misleading statements by omission or commission to the NRC about the operational organization of plant Vogtle in order to raise a triable issue.
In its petition, Intervenor had alleged that, with the establishment of the SONOPCO project, management's attitude toward safety deteriorated to the point where managers would intentional violate tech spec requirements to improve operational efficiency.
The Board ruled that Intervenor cannot litigate this assertion even though GPC did not raise this issue in its motion for summary disposition.
2
i proceeding.
Intervenor specifically seeks review of the following findings and rulings of the Board:
1.
Whether the Board's finding that there is no relief available to Intervenor even if i
Georgia Power illegally transferred control of its operating license (M&O at pp. 3-4) is an abuse of discretion and contrary to legislative authority. 10 C.F.R.
S 2.786 (b) (4) (ii) and (iii).
2.
Whether the Board's sua sponte ruling that Intervenor abandoned his claim that the illegal license transfer adversely impacted on management's attitude toward safety (M&O at pp.
4-5,_ 25) is an abuse of discretion not I
in accordance with law and contrary to prior administrative findings of the Commission.
10 C.F.R.
S 2.786 (b) (4) (ii) and (iii).
3.
Whether the Board improperly shifted the burden to Intervenor requiring him to show that a genuine issue of fact existed as to whether the illegal license transfer resulted in an adverse impact on safety although GPC never raised this issue when moving for summary disposition (M&O at pp.
4-5, 25), and whether the Board's decision was an abuse of discretion or not in accordance with law.
10 C.F.R.
S 2.786 (b) (4) (iii) and (iv).
The issues Intervenor seeks to raise in this appeal were previously considered and/or discussed.5 5
See In regard to the issue related to relief available based on whether illegal license transfer previously raised, Intervenor identifies Georcia Power Comoany, et al. (Vogtle Electric Generating Plant, Units 1 and 2), LBP-93-5 at p.
12-13, 37 NRC 96, (1993); and Georcia Power Comoanv. et al.
(Vogtle Electric Generating Plant, Units 1 and 2), CLI-93-15 at p.
2, NRC (1993).
In regard to the issue related to adverse impact on management's attitude toward safety following transfer of j
control, intervenor identifies Georcia Power Company. et al.
(Vogtle Electric Generating Plant, Units 1 and 2), LBP-93-5, 37 I
f NRC 96,98-100 (1993); and In re Georcia Power Company, NRC-OI report Case No. 2-90-020R (December 17, 1993) at p.
15.
j i
3
III. STATEMENT OF WHY COMMISSION REVIEW SHOULD BE EXERCISED A.
The Commission Has The Discretion to Grant Review The Commission may exercise discretionary review where a decision by the Board can " pervasively affect the basic structure of the proceeding."
Lona Island Lichtina comoany (Shoreham Nuclear Power Station, Unit 1), CLI-91-4, 33 NRC 233, 236 (1991);
citing Cleveland Electric Illuminatino Co.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB-736, 18 NRC 165, 166 n.1 (1983).
The Board's M&O has drastically altered the basic structure of this proceeding in two respects.
First, by denying Intervenor the right to establish that GPC violated Section 184 of the Act by transferring control of its nuclear license, the Board prohibited Intervenor from demonstrating through the submission of evidence that GPC did, in fact, violate Section 184 of the Act by improperly transferring control of its nuclear operations without first obtaining consent of the Commission.
M&O at pp.
3-4.
The Board's M&O asserts that a violation of Section 184 of the Act would not allow Intervenor the right to a remedy and, as such, whether GPC had improperly transferred control is remediless.
Id.
Instead, the Board intends to limit the hearing to whether Intervenor can establish evidence demonstrating that GPC improperly misled the Commission about who was in control over GPC's nuclear plants, and a factual determination as to whether GPC violated Section 184 will not be reached.
The parameters set by the Board for hearing will prohibit Intervenor from presenting a complete case as to whether Licensee illegally transferred control of its license.
If, as a matter of 4
law, Intervenor is entitled to a hearing to determine whether a remedy can be fashioned based on the illegal transfer, the Board's order denies Intervenor the right to present his case that an illegal transfer of control did occur.
Second, by ruling that Intervenor abandoned his claim that the illegal license transfer adversely impacted on management's attitude toward safety (an issue not raised by Licensee in its filings related to summary disposition), the Board specifically prohibited Intervenor from presenting evidence concerning this issue.
The fact that this issue would pervasively affect the structure of the proceeding is obvious inasmuch as the Board itself concedes in its M&O that this issue would allow Intervenor the right to a remedy should he prevail.
See M&O at p.
5 ("Had the evidence permitted us to assume that an illegal license transfer had contributed to a change in safety consciousness, we would question the appropriateness of the requested amendment).
The denial of Intervenor's ability to present a case as to whether the transfer of control adversely impacted on management's attitude toward safety will pervasively affect the basic structure of the proceeding, including Intervenor's right to a remedy.
IV.
STATEMENT OF WHY THE DECISION IS ERRONEOUS Pursuant to 10 C.F.R.
S2.786 (b) (2) (iii), a concise statement as to why the Board's decision is erroneous is set forth below.
5
A.
The Board's Legal Conclusion Departs From Previously Established Law The Board determined that a remedy based on a violation of Section 184 of'the Atomic Energy Act and its implementing regulation, 10'C.F.R.
S50.80(a), is not permissible.
Administrative regulations promulgated pursuant to exprets statutory authority should be accorded more weight than interpretative regulations which are not promulgated under the enabling statute. Public Citizen v.
Department of Justice, 491 U.S.
440, 465 n.
12 (1038), citing General Electric Co.
v.
Gilbert, 429 U.S.
125, 141 (1976)
An agency may not ignore plain limitations on its authority and may not alter the requirements stated in the statute by adding to or subtracting from it.
See 2 Am Jur 2d Admin Law S268 (citations omitted).
Pursuant to 10 C.F.R. 550.100, in relevant part, a license 4
may be:
revoked, suspended, or modified, in whole or in part...
for [the] violation of, or failure to observe, any of the terms and orovisions of the act, regulations, license, permit, or order of the Commission.
10 C.F.R.
S50.100 (emphasis added).
The illegal transfer of an operating license would constitute a violation of the S184 of the AEA and 10 C.F.R. 550.80.
As a matter of law, Intervenor is entitled to a hearing on an appropriate remedy based on the violation of an express provision found in the AEA and governing regulations.
The Board's conclusion that Intervenor is not entitled to a remedy (or a hearing on an appropriate remedy) is 6
contrary to 10 C.F.R.
S50.100 and represents a departure from administrative regulations and established law.'
B.
The Board's Order Raises A Substantial and Important Question Recardina Sua 7ponte Discretion The Board abused its discretion by ruling that Intervenor abandoned part of his claim thsc the illega] transfer of the license had an impact on the attitude of management toward plant safety. M&O at p.
4-5.
When admitting Intervenor's contention, the Board affirmatively acknowledged that part of Intervenor's factual basis included the assertion that the transfer of control had adversely impacted the safe operation of plant vogtle by its management's change in attitude towards safety.
Nonetheless, the Board, sua sponte, determined that this issue had been abandoned by Intervenor even though Licensee's request for summary disposition never alleged that Intervenor had abandoned this theory nor asserted that there was no longer a factual issue with respect thereto.
6 Additionally, the Licensing Board previously stated that if Intervenor proved that Georgia Power illegally transferred its license, "we might direct that the license amendment be denied or conditioned on changes in the structure and personnel of Southern Nuclear."
Georcia Power Company. et al.
(Vogtle Electric Generating Plant, Units 1 and 2), LBP-93-5 at pp. 12-13, 37 NRC 96, (1993).
The Board stated in its order on summary disposition that it concluded, en route to it's decision, the fact "that Georgia Power had illegally transferred its operating license would not by itself require any relief in this license amendment proceeding."
M&O at p.
3.
The Board further stated that it:
would consider granting relief only if Intervenor shows that Georgia Power misrepresented material facts to the Nuclear Regulatory Commission with respect to the control of Georgia Power's nuclear operations.
Id.
Intervenor contends that this legal conclusion is a departure from and contrary to established law.
The Board also abused it's discretion in reaching this conclusion.
7
i.
The Board Made a Prejudicial Procedural Error In Its Decision The Board made a prejudicial procedural error in ruling that Intervenor had "made no showing that the transfer of authority...had any effect on the safety of Vogtle."
M&O at p.
25.
In so ruling the Board improperly shifted the burden from Georgia Power to make a showing as to the absence of a genuine issue as to any material iact, to the Intervenor to show that the material fact was in dispute.
The Commission has recently observed that under 10 C.F.R.
S2.749, "the party seeking summary judgement bears the burden of showing the absence of a genuine issue as to any material fact." Sacramento Municioal Utility District (Rancho Seco Nuclear Generating Station) LBP-93-23, 38 NRC 200, 239 (1993)
The Commission further observed that "the opposing party must controvert any material fact procerly set out in the statement of material facts.
Id. at 240 (emphasis added).
Additionally, where important safety issues are involved, "the Licensing Board should only grant summary disposition if it is convinced that the public... safety...will be satisfactorily protected."
Public Service Company of New Hampshire, et al.
(Seabrook station, Units 1 and 2), LBP-90-44, 32 NRC 433, 437 i
(1990)
When no party opposes a motion for summary disposition, the moving party must still make a showing that there is an absence of a genuine issue of material fact. Id.
Here, Georgia Power made no showing to establish the absence of a genuine issue of material fact concerning the impact of the illegal license transfer on the attitude of management toward safety at Plant Vogtle.
Therefore, Intervenor had no duty to 8
i
- s
,1 make a showing to establish there was a genuine issue of material fact with respect to adverse impact on safety following transfer of control.
Hence, the Board made a prejudicial procedural error in so ruling.
t
(
ii.
The Board abused its sua soonte authority.
The Commission does not favor the use of sua sponte authority.
Florida Power & Licht Company (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-32, 32 NRC 181, 185 1
(1990),
(" Florida Power (1990)"), and prohibits such where it I
l-would not serve the public interest.'
In this respect, if a
)l l
Licensing Board, in the course of its duties, discovers an important safety issue it must exercise its sua sponte authority i
1 and pursue the issue.
10 C.F.R.
S2.760a.
The Board must do this whether or not there are parties interested in that issue in l
order to afford greater protection to the public.
Id.,
at p.
184.
However, the Commission has refused to allow a Licensing Board to extend the application of the sua sponte authority.
Florida Power & Licht Company (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-91-13, 34 NRC 185 (1991),
(" Florida Power (1991)"). In Florida Power (1991), the Commission refused to allow the Licensing Board to use its sua sponte authority to address concerns raised by an intervenor after that intervenor had been dismissed and there was no longer an ongoing proceeding.
Id. at 188.
In the case at hand the commission should refuse to i
1 1
Procedural regulations should not run counter to the
]
purpose and intent of the statute being administered.
Sag 2 Am j
Jur 2d Admin Law S268 (citations omitted).
j l
9 j
1 I
._--_-_-__-______-__________________________________________-____________-______________________-_I
allow the Licensing Board to extend its sua sponte authority to exclude important safety issues already admitted into the proceeding.
The Licensing Board's action, its decision to exclude the issue of the impact of the illegal license transfer on the attitudes of management toward the safety of the plant, without providing notice and an opportunity for hearing on that issue to the parties, constitutes an abuse of the discretion and is not in-accordance with law.
The Board's action controverts the purpose of the regulation because it does not afford greater protection to the public interest -- it affords less.
This issue is ripe for appellate review.
VI.
CONCLUSION For the foregoing reasons, Intervenor respectfully requests the Commission to accept this petition for review of the Licensing Board's decision on the summary disposition of the illegal license transfer phase of this proceeding and to grant such relief as appropriate to remedy the above stated errors.
Respectfully submitted, Michael D.
Kohn Mary Jane Wilmoth KOHN, KOHN & COLAPINTO, P.C.
517 Florida Ave.,
N.W.
Washington, D.C.
20001 I
(202) 234-4663 Attorneys for the Intervenor Dated:
November 21, 1994 C:\\ FILES \\301\\ APPEAL 1
+
10 l
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Novembeh 1 94 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 94 mV 22 P3 53 ATOMIC SAFETY AND LICENSING BOARD
)
0FFICt &
W, ?Y In the Matter of
)
DOCKEii
.. M
)
Docket Nos. 5 0 - 4 24 - OLA-:3l:H GEORGIA POWER COMPANY
)
50-425-OLA-3 e.t al.,
)
)
Re: License Amendment (Vogtle Electric Generating
)
(transfer to Southern Nuclear)
Plant, Unit 1 and Unit 2)
)
)
ASLBP No. 93-671-01-OLA-3 CERTIFICATE OF SERVICE i
I hereby certify that INTERVENOR'S PETITION FOR APPEAL OF THE LICENSING BOARD' S DECISION TO GRANT PARTIAI
SUMMARY
DISPOSITION OF THE ILLEGAL LICENSE TRANSFER ISSUE has been served via first class mail, this November 21, 1994, upon the persons listed in the attached Service List.
By:
/h
/
Mdry[ysneWilmoth KOHN, KOHN & COLAPINTO, P.C.
517 Florida Ave.,
N.W.
Washington, D.C.
20001 (202) 234-4663 1
h.}f-994 Novembe UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 94 mV 22 P'3 :53 ATOMIC SAFETY AND LICENSING BOARD
)
0FFICf hi
"'?iU o RY In the Matter of
)
00CKEim.>1 m,
)
Docket Nos. 50-424-OLA-3'H GEORGIA POWER COMPANY
)
50-425-OLA-3 g al.,
)
)
Re: License Amendment (Vogtle Electric Generating
)
(transfer to Southern Nuclear)
Plant, Unit 1 and Unit 2)
)
)
ASLBP No. 93-671-01-OLA-3 CERTIFICATE OF SERVICE I hereby certify that INTERVENOR'S PETITION FOR APPEAL OF THE LICE.NSING BOARD'S DECISION TO GRANT PARTIAL
SUMMARY
DISPOSITION OF THE ILLEGAL LICENSE TRANSFER ISSUE has been served via first class mail, this November 21, 1994, upon the persons listed in the attached Service List.
By:
[N /h Mdry((dneWilmoth KOHN, KOHN & COLAPINTO, P.C.
517 Florida Ave.,
N.W.
Washington, D.C.
20001 (202) 234-4663
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY
)
50-425-OLA-3 e_t;. al.,
)
t
)
Re: License Amendment (Vogtle Electric Generating
)
(transfer to Southern Nuclear)
Plant, Unit 1 and Unit 2)
)
)
ASLBP No. 93-671-01-OLA-3 SERVICE LIST Administrative Judge Administrative Judge Peter B.
Bloch, Chair James H.
Carpenter Atomic Safety and Licensing Ecard 933 Green Point Drive U.S.
Nuclear Regulatory Commi.1sion Oyster Point Washington, D.C.
20555 Sunset Beach, NC 28468 Administrative Judge Charles A.
Barth, Esq.
Thomas D. Murphy Office of General Counsel Atomic Safety and Licensing Poard U.S.
N.R.C U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D-.C.
20555 John Lamberski, Esq.
Ernest L.
Blake, Jr.
Troutman Sanders David R.
Lewis Suite 5200 SHAW, PITTMAN, POTTS &
600 Peachtree Street, N.E.
TROWBRIDGE Atlanta, GA 30308-2216 2300 N Street, N.W.
Washington, D.C.
20037 Office of the Secretary Attn: Docketing and Service U.S.
Nuclear Regulatory Commission l
Washington, D.C.
20555 Office of Commission Appellate Adjudication U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 301\\ cert.lis