Text

Intervenor Phase I Findings of Fact & Conclusions of Law.* Orders That Partial Initial Decision Will Constitute Final Action of Commission Forty Days After Issuance. W/Certificate of Svc & Svc List
	ML20080M315
Person / Time
Site:	Vogtle
Issue date:	02/24/1995
From:	Kohn M; GEORGIA POWER CO., KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	;
References
	CON-#195-16404 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9503030182
	Download: ML20080M315 (183)
	v • d • e

{{#Wiki_filter:d 00CKETED FebrdMEpM24, 1995 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '95 FEB 27 A10 :09 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges.0FFICE OF,5EQETARY Peter B. Bloch, Chair DOCKE W a'fRVjCE Dr. James H. Carpenter- ON A *dI Thomas D. Murphy <

In the Matter of )

                                     )     Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY             )                   50-425-OLA-3            <

31 g_L., )

                                     )      Re: License Amendment (Vogtle Electric Generating      )      (transfer to Southern Nuclear)      ',

Plant, Unit 1 and Unit 2) )

                                     )      ASLBP No. 93-671-01-OLA-3 1

f INTERVENOR'S " PHASE I" FINDINGS OF FACT AND CONCLUSIONS OF LAW l I. STATEMENT OF THE CASE i Georgia Power Company submitted an application on September t 18, 1992 to amend its license to allow Souther Nuclear to become the operator of Plant Vogtle. On October 22, 1992, Allen L. i l Mosbaugh and Marvin B. Hobby filed a petition to intervene in this licensing proceeding in order to oppose Georgia Power Company's application. We dismissed Mr. Hobby's petition for lack of sthnding on November 17, 1992. On February 18, 1993, we admitted Mr. Mosbaugh as a party to this case. Georcia Power Comoany, et al. (Vogtle Electric Generating Plant, Units 1 and 2), LBP-93-5, 37 NRC 96 (1993). The contention admitted in this l proceeding is: i ! 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 l lacks the requisite character, competence and l integrity, as well as the necessary candor,

                                                                             $b 9503030182 950224

PDR ADOCK 05000424 O PDR

 . _ _ .       .           _ _ _    _.    .          ~    .

l truthfulness and willingness to abide by regulatory i requirements. Id. at 111. The proceeding was subsequently divided'into two i phases, Phase I-illegal license transfer allegations and Phase ' II-Diesel Generator allegations; with additional phases related i l to questions concerning The Southern Company and remedy to follow l if necessary. I i On August 24, 1994, Georgia Power filed a motion for summary disposition in the Phase I illegal license. portion of this proceeding. On October 3, the NRC Staff filed its Response and on October 4 Intervenor filed his Response. We issued a decision-

         .concernina the' summary disposition of the illegal transfer.                                              q allegation on November 8, 1994.              Georaia Power Comoanv, et al.

(Vogtle Electric Generating Plant, Units 1 and 2), LBP-94-37, _ ! NRC _ (1994). In our Order we state that we would l l 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. at 3. We also defined the sole issue of fact that we would admit at trial as "a material issue of fact concerning whether or not omissions or misstatements did occur." Id. at 5. The only evidence we would allow to be admitted was evidence: i (1) showing what statements or omissions were made by Georgia Power officials to the NRC concerning the ! l control of Vogtle, (2) providing the context to reach a l conclusion concerning the falseness and the materiality l of the. statements or omissions, and (3)' permitting us . l to assess the degree of culpability involved in the ! statements or omissions. l Id. at 5. 2

We noted that the Intervenor and the Licensee portrayed the same facts very differently, but that looking at'the overall pattern with a favorable interpretation from Intervenor's ; perspective, we were able "to assume that the practical ability > to make major decisions about Vogtle had shifted from Georgia Power to SONOPCO." Id. at 16. We further stated that because key. SONOPCO employees were serving more than one master it would be

   " difficult to determine how power actually was exercised."     Id.

l We further put Licensee on notice as to its burden of proof in l l l I l this stage of the. proceeding stating that the-l l l party seeking the amendment has the burden of proof and i it is Georgia Power's responsibility, at this stage of l the proceeding, to demonstrate that there are no reasonable inferences from which to assume that control of Vogtle had shifted to SONOPCO. Id. at 16-17. We went on to state that "it is permissible to

assume that SONOPCO was a powerful entity within Southern 1

Company", based on Intervenor's evidence. Id. at 17. The phase I hearing on illegal license transfer allegations commenced on January 4, 1995 and concluded on January 13, 1995. l In the Course of this hearing nine witnesses testified' live, one by telephone; and, in lieu of calling additional witnesses to I testify live at the hearing, the Board accepted into the record l l l designated portions of deposition testimony from numerous witnesses. At the close of the hearing a schedule was set for the parties to submit proposed finding of fact and conclusions of l law. Licensee filed on February 13, 1995, the Intervenor on 3 l

February 23rd, and the NRC Staff on March 6, 1995. The License , had the opportunity to file rebuttal on March 13, 1995. II. BURDEN OF PROOF ' 4

As the Applicant, Georgia Power has the burden of proof on-J every issue relevant to this proceeding. 10 C.F.R. 52.732. The A

record in this proceeding demonstrates that Georgia Power Company could not meet their burden. III. FINDINGS OF FACT A. Background The Southern Company is a registered holding company under the Public Utility Holding Company Act of 1935; it is parent to five operating companies, including Georgia Power Company ) (" Georgia Power" or"GPC") and Alabama Power Company (" Alabama 1 ^ Power" or "APC"). The Southern Company holds one hundred per I cent (100%) stock ownership of both GPC and APC. In addition to operating companies, The Southern Company has formed wholly owned I subsidiary corporations, including Southern Company Services ("SCS"), a service company that provides, at cost, specialized a services to GPC, APC and other entities within the Southern system. In December of 1990, The Southern Company incorporated a

new wholly owned subsidiary known as Southern Nuclear Operating Company or " Southern Nuclear." Two years earlier, on November 1,

!     1988, a " Southern Nuclear Operating Company project," commonly 4

4 f n d

l I l referred to as the "SONOPCO project," was organized in , ! I l Birmingham, Alabama.1 l l GPC owns a minority interest in two nuclear facilities, I plant Hatch and plant Vogtle. Approximately seventy per cent i l (70%) of GPC's assets are represented by its ownership interest l l in these two plants. 1 In 1987, two operating companies owned and operated all the nuclear power plants within the Southern system. APC was the , 1 sole owner and operator of Plant Farley; GPC was the co-owner and ) l sole operator of Plants Hatch and Vogtle. The Southern Company l is not licensed to operate any of these nuclear plants and is not l subject to the provisions of the license. At the time the applications to license plants Hatch and Vogtle were filed, NRC was not notified in writing that The Southern Company would exercise control over any license-related activity. The fact that Georgia Power is a wholly owned subsidiary of a holding company was required to be disclosed at the time the application j was filed. See 10 C.F.R. Part 50, App. L, 5 I.1. Another i required disclosure relates to sources of funding. Under 10 C.F.R. Part 50, App. C, S II.A.2, an applicant must identify all sources of its construction funds. Georgia Power concedes that, 1 unless the parent company is listed as a license applicant along 2 To avoid confusion, throughout this brief we refer to the formally incorporated Southern Nuclear Operating Company as

 " Southern Nuclear." Hereinafter reference to "SONOPCO" refers to the concept of a nuclear operating company before the "SONOPCO proj ect" was formed. We use the term "SONOPCO project" strictly to refer to the entity formed on November 1, 1988.

5

with-the subsidiary, they do not become licensees. Post hearing ! , i brief of Licensee at p. 72. Only the licensed operator of a I nuclear facility is authorized to control nuclear operations. Marvin B. Hobby received a B.S. from Mercer University in 3 1968 in Natural Science with a concentration in physics. Between 1968-1971 he worked at the Oak Ridge Associated Universities, i where he obtained training in nuclear physics, radiochemistry and i

nuclear biology. Hobby p. 1. He was first employed by GPC in' '

1971 as the Director of GPC's Edwin I. Hatch Visitors Center. Mr. Hobby remained employed with GPC until 1979. Id. In 1980 Mr. Hobby was hired by the Institute of Nuclear Power Operations

j. ("INPO") as Communications Manager and was named Staff Assistant to Admiral E. P. Wilkinson, the President and Chief Executive t Officer ("CEO") of INPO. He was subsequently promoted to the position of Assistant to the President and Secretary of the !

Corporation. In 1984, Mr. Hobby was loaned by INPO to serve as l 1 ^ I Project Manager of the Congressional Education Program of the j f l i l newly formed Nuclear Utilities Management and Resources Committee f ("NUMARC"), where he reported to Mr. J. H. Miller, Jr., the -j

    , Chairman of NUMARC.      Mr. Miller concurrently held the position as President of GPC.       Id., pp. 1-2.

In 1985, GPC hired Mr. Hobby as GPC's Assistant to the . President. Mr. Hobby was assigned the responsibility of evaluating GPC's nuclear operations for plant Hatch and the i construction and start-up of Plant Vogtle, Units 1 and 2, ) l including the evaluation of timeliness, cost-effectiveness, i 6

quality of construction, as well as qualifications and competence of personnel. Hobby p. 2. In addition, Mr. Hobby had responsibility for preparing the monthly operation and I construction reports covering nuclear operations and was responsible for submitting these reports to GPC's Board of Directors . Id. B. Construction of plant Vogtle and the decision to Hire Admirial Wilkinson In 1985 Mr. Miller asked Mr. Hobby to recruit INPO's former President, Admiral Wilkinson, to serve as an Executive Consultant to GPC's President to prepare an independent evaluation of Plant Vogtle's then on-going construction and staffing efforts. Admiral Wilkinson accepted the position and, prepared his overall findings and in early 1986, presented the findings and his recommendations to Mr. Miller. Admiral Wilkinson advised Mr. Miller that the company needed to make significant changes in top management. Hobby pp. 2-3. Following Admiral Wilkinson's briefing, Mr. Miller told Mr. l Hobby that he was going to seek approval from GPC's chief Executive Officer, Mr. Robert Scherer, to hire Admiral Wilkinson to head GPC's management over the construction of plant Vogtle, Mr. Miller told Mr. Hobby that Mr. Scherer approved the decision to place Admiral Wilkinson over plant Vogtle construction efforts and instructed Mr. Hobby to commence making plans for the Admiral's arrival. Mr. Miller advised Mr. Hobby to communicate to Admiral Wilkinson that Mr. Scherer had approved the Admiral's taking over construction of the Vogtle project. Mr. Hobby 7

contacted Admiral Wilkinson and told him that Scherer had approved the decision. Hobby pp. 3-4. ! In the Spring of 1986, after GPC's President, Mr. Miller, ! and CEO, Mr. Scherer, approved Adm. Wilkinson's taking over plant - Vogtle's construction, Mr. Addison objected. Mr. Miller told Mr. Hobby of Mr. Addison's intervention and asked him to advise Adm. Wilkinson that the arrangements had to be cancelled. Hobby p. 4.' C. Organizational changes between 1986 and 1987 l Well in advance and in anticipation of Mr. Miller's planned l retirement from GPC in November 1987, GPC decided that l responsibility for nuclear operations would be transferred to Mr. H. Grady Baker, GPC's then Senior Executive Vice President. GPC l management recognized that Mr. Baker had little experience with l l nuclear operations, and named Mr. Hobby as Mr. Baker's executive l assistant for the purpose of getting Mr. Baker up to speed on nuclear issues and of advising him on nuclear matters. Hobby pp. 4-5. In October, 1987, Mr. Hobby was selected to represent GPC l before the World Association of Nuclear Operators Conference, i held in Paris, France. He was thereafter made Manager of Nuclear Support, reporting to GPC's Senior Vice President for nuclear 2 Significantly, the Georgia Public Service Commission found Georgia Power "to have been imprudent in its management of the construction of Vogtle Unit 1, and the Georgia PSC's decision with regard to imprudence was affirmed on appeal. Georcia Power Co. v. Georcia Pub. Serv. Comm'n, Civ. No. D-50843m Superior Court, Fulton County (July 21, 1988)." Intervenor Exhibit 38 at p. 4. l 8

i l l operations, James O'Reilly, who in turn reported to Grady Baker. , I l Hobby pp. 6-7. In this position, Mr. Hobby had responsibility over Human Resources, Information Services, Records Management and Technical Procurement. Mr. Hobby had specific responsibility for approving all corporate organization change notifications to be submitted to the Nuclear Regulatory Commission ("NRC"). Additionally, he functioned as GPC's administrative liaison with INPO, represented GPC's Nuclear Operations on company committees, - and functioned as GPC's Administrative Manager of Nuclear Operations Corporate Emergency Response Team. Hobby p. 7. i D. February, 1988 reorganization In February 1988, Mr. O'Reilly left GPC and was replaced by ! Mr. George Head. A reorganization occurred during this transition and Mr. Hobby was named Manager of Nuclear Support Services. Mr. Hobby retained all of his prior responsibilities, l and in addition gained responsibility for Nuclear Security, and Financial Services; and Mr. Hobby also gained responsibility over GPC's nuclear performance indicator program. Hobby pp. 7-8. ; Additionally Mr. Hobby became GPC's nuclear liaison to the co-owners of Plants Hatch and Vogtle. Hobby p. 8. The Joint Owners of plants Hatch and Vogtle had established a Joint Committee on Power Generation. The Committee membership were made up of representatives from Oglethorpe Power, MEAG and GPC. l l GPC had two members on the Committee: one member represented Nuclear and the other Fossil and Hydro. Mr. Hobby was GPC's Nuclear representative. The committee met monthly. 9 i

1 J Additionally, Mr. Hobby talked with representatives from Oglethorpe and MEAG several times a week. Michael Barker attended the regularly scheduled monthly meetings to brief the Committee on the performance of GPC's nuclear units and the j status of the nuclear operating budget. Egg Hobby p. 29. l E. Establishment of a nuclear operating company task force i The concept of a stand alone nuclear operating company was j i contemplated for a dozen or more years before it came to l 1 I fruition. The record suggests that the pivotal point of

formation of a nuclear operating company occurred in 1987.

At this time Mr. Addison met in private with Joe' Farley (then l' President and CEO of APC). They jointly agreed that Mr. Farley would emerge as the chief executive of a newly formed nuclear i operating subsidiary; Addison Dep. at pp. 38, 45, 67, and that j the management of the subsidiary would be located in Birmingham, i Alabama. Addison Dep. at p. 80. Georgia Power's then CEO, Mr. t Scherer, was not included in these discussions; had no idea of the process employed to select Mr. Farley as CEO of this emerging subsidiary; and was not told of the decision to locate Southern Nuclear in Birmingham. Scherer 6/8/94 Dep. at pp. 47-48, 77. Mr. Mcdonald's testimony at the hearing confirms that the decision to move GPC's nuclear operations to Birmingham was made l by Mr. Farley and Mr. Addison. Tr. 1260. (Mcdonald). F. " Phase I" Task Force The Southern System established a Business Strategies Task Force in early 1987. In turn, the Business Strategies Task Force 10 l l

l l established a separate task force, referred to as the " Phase I l l Task Force," to study the feasibility of setting up a nuclear ! l operating subsidiary that would be wholly owned by The Southern Company. This task force consisted of Marvin Hobby (GPC), George l Hairston (APC) and Bob Gilbert (APC). In addition, an attorney from Balsh Bingham (APC's law firu), Bob Buettner, functioned as j 1 a member of the Task Force. Hobby p. 5. ! In July 1987, the Phase I Task Force presented its recommendations to the Business Strategies Task Force and to a l meeting of Southern System executives. The System executives ; l accepted the Task Force's recommendation. Hobby pp. 5-6. G. " Phase II" Task Force In November of 1987, a second Task Force, referred to as the l 1 " Phase II Task Force," was implemented with authority to form SONOPCO. Hobby at p. 6. ; 1 The Phase II Task Force was divided into an executive group and a working group. The executive group consisted of Grady Baker (GPC's Senior Executive Vice President), A.W. Dahlberg (President of Southern Company Services), and Bill Whitt (Executive Vice President of Alabama Power) . The working group was headed by Pat Mcdonald (APC Senior Vice President). Mr. Mcdonald would meet with the executive group. The staff of the working group consisted of Tom McHenry (a GPC manager) , Lou Long (a SCS manager) and Bob Gilbert (an APC manager). Sgg Hobby p. 6. 11

l 4 l Before becoming a Georgia Power employee, Mr. Mcdonald was j appointed by The Southern Company to determine the organizational structure of SONOPCO. Long Dep. at pp. 11, 14, 16. It was determined that each nuclear plant under SONOPCO's management would have a separate project headed by a project vice president. The three project vice presidents would report to a senior vice r I president. In addition, a separate technical services organization headed by a vice president and an administrative l services organization headed by a separate vice president would , also be formed. The senior vice president and the two services vice presidents would report to an executive vice president; and the executive vice president would report to a chief executive officer. 4 On March 2, 1988, Mr. Mcdonald (who then held the position 1 of senior vice president at APC) and others met with the NRC to formally discuss the formation of SONOPCO. Stip. Ex. 1, Long Dep. at p. 25-30. NRC Staff was advised that The Southern

! Company implementation would begin with the incorporation of i SONOPCO, and there was no mention of the need to create a SONOPCO

       " project."    Long Dep. at pp. 25, 30.

H. Restructuring of nuclear operations f The accommodation of Georgia Power's nuclear operations to the SONOPCO configuration occurred in stages. First, GPC's l executive nuclear management was reconfigured. Originally, GPC had a single organization over both plants Hatch and Vogtle that was headed by a senior vice president, who at the time was Mr.

12

l l l George Head. Mr. Head reported to GPC's Senior Executive Vice President, Mr. Baker. Mr. Head and Mr. Baker were replaced by Mr. Mcdonald as Executive Vice President.' Thereafter, on May 4 l 18, 1988, the boards of directors of The Southern Company, GPC and APC approved the formation of SONOPCO. Stip. Ex. 5. GPC's Board also elected.Mr. Hairston as senior vice president, and Mr. l McCoy as project vice president at that time. Messrs. Mcdonald j i l and Hairston were concurrently named to these same positions at i Alabama Power. l On September 21, 1988 Mr. Addison issued an announcement , stating that the joining of GPC's and APC's nuclear operations 1

was the "first step" taken towards the formation of nuclear-

! - operating subsidiary. Egg Stip. Ex. 10. I I. Selection of SONOPCO officers j The selection of SONOPCO officers began in 1987, when Mr. < Addison offered to become the chief executive of SONOPCO and Mr. l Farley agreed. According to Mr. Scherer, responsibility to staff

and reconfigure GPC's nuclear operations was left to the ,

              " executive management of the SONOPCO operation."'                                                                       )

L } 3 Mr. Mcdonald was originally identified as a.-senior officer of Georgia Power by Mr. Scherer on April.4, 1988. He was formally elected as Executive Vice President, Nuclear on April 22, 1988. Mcdonald at p. 1. GPC's nuclear corporate organization, in ;

!             particular Senior Vice President George Head, and Executive Vice l              President Grady Baker were not involved with the decision to name                                                        l Mr. Mcdonald as GPC's Executive Vice President. Egg Robby pp.10-11.

i. In 1988, Mr. Scherer provided deposition testimony in the 4 Fuchko and Yunker v. GPC Section 210 proceeding (Exhibit 7). This testimony is highly probative because it was given before there was j any accusation by Mr. Hobby or anyone else that GPC transferred its t

license to SONOPCO. In this respect, Mr. Scherer testified that 13 ] i-

                                       . - ~    ,,  . . _ .                            _    . __                    _         _ _ . -

l l

l Mr. Farley specifically participated in the selection of Ken 1 ( McCoy for the position of Plant Vogtle project vice president. l l Farley at 25-26. He also participated in the selection of l ! SONOPCO's vice president of Technical Services; and the vice i l president of Administrative Services. Tr. 1276 (Mcdonald). Mr. l l Farley's involvement with SONOPCO staffing decisions was so l pronounced that he personally met with Mr. Long to tell him that ; l he had been selected as the vice president of Technical Services. l l l the " executive management" of SONOPCO was actively functioning and j had the responsibility to reorganize and staff GPC's nuclear i operations: A: ...That was left to the executive manacement of the SONOPCO ooeration to determine what disciplines were l necessary and what talents and experience were required [to staff the corporate structure over GPC's nuclear operations]. Q: So you relied upon their consideration of who should be considered for what jobs? A: That's right. i Q: Okay, did you ever talk to Mr. Mcdonald or anybody who j was a part of that executive manacement as to what their criteria for SONOPCO jobs were? l A: No, I did not. l Q: Okay, and is Mr. Mcdonald, is he one of the people that you're talking about who was responsible for evalu-- l A: He would be the chief person responsible for the overall l operation of SONOPCO. I can't say as to whether he j developed the job descriptions or someone within his organization -- I can't say that. l l Scherer 12/21/88 DOL Dep. at pp. 15-16 (emphasis added). i Mr. Scherer's involvement with Mr. Addison on nuclear operations matters appears to have been remote to the point that Mr. Addison, "los(t] track of whether Scherer or Mcdonald was (GPC's] CEO." Addison Dep. at p. 83. i 14

This would be the first time Mr. Long ever met Mr. Farley. Long , Dep at pp. 5-6, 20. Mr. Farley was involved with the selection of SONOPCO executives irrespective of whether the SONOPCO employee had a formal reporting relationship to Mr. Farley.s This involvement evidences that Mr. Farley was able to function as the de facto head of SONOPCO.' Mr. Dahlberg was also involved in the selection of Mr. McCoy although he was not a GPC employee at the time.' J. Southern Company files to form SONOPCO with the SEC and Oglethorpe's decision to intervene GPC recognized that the co-owners of Plants Vogtle and Hatch would not' agree to the formation of SONOPCO. Further, GPC knew - that Oglethorpe would intervene before the SEC unless they came to an agreement about the organization of SONOPCO. -Long Dep. at pp. 31-32. In this matter, Oglethorpe was unwilling to approve l the creation of SONOPCO until contractual arrangements between Oglethorpe and GPC related to the transfer of operational control from GPC to SONOPCO were agreed upon. See Oglethorpe SEC 5 ! At the time Mr. Long was selected . as the technical

services vice president he was employed by SCS and had no reporting l relationship to Mr. Farley, who at the time was APC's CEO and i president. The same is true with respect to Mr. McCoy. Mr. McCoy l was selected as a GPC vice president and Mr. Farley had no connection whatsoever to Georgia Power.

5 Mr. Addison was also involved with the selections. l Addison Dep. at pp. 45, 38, 67. l 7 l Mr. Dahlberg was CEO of Southern Company Services and i ! became a GPC employee on June 1 as GPC's president. Sag Stip. Ex. 5. 15 , i I

1 Intervention at p. 3 (Exhibit 38). Pursuant to the Public ; I Utilities Holding Company Act, The Southern Company would have to' i make a "U-la filing with the Securities and Exchange Commission. I before it could incorporate SONOPCO. Georgia Power understood that Oglethorpe was afforded the opportunity to intervene:before the SEC and by doing so the incorporation:of SONOPCO would be stymied. Realizing that efforts to resolve'its differences'with j oglethorpe were failing and anticipating-that OglethorpeLwould. intervene, the Phase II Task Force began implementing.a different. strategy. Previously, .the plan was to phase in.SONOPCO in five separate phases beginning with the incorporation.of SONOPCO, the-Task Force decided to form an unincorporated entity known as the: !

                                                                                                  'l "SONOPCO project."      Plans to form the SONOPCO project' commenced                           j in May of 1988. Long Dep. at p. 32.

As the decision to implement the SONOPCO project took form, Georgia Power's representative on'the Task Force, Thomas McHenry, issued a memorandum to Mr. Mcdonald raising a. concern that the legality of The Southern Company's implementation of SONOPCO_may l not have been adequately analyzed as a result of undue influence L coming from Southern Company management. Intervenor Exhibit 37. In pertinent part, the memorandum states: l The. Nuclear Company Phase II task force mission has been described in many forums as a nuclear operating' , company feasibility and implementation study. In i practice, this mission has been somewhat distorted by a ' clear and consistent unwritten philosophy that the ! ! Southern Company, in effect, has already decided to I form a nuclear operating company. Thus, task force activities have concentrated on how to implement the formation of a Southern Nuclear Operating Company and (ignored] identification of any overwhelming reasons 16 c- -s gm.- subject discussed during the meeting concerned the SONOPCO project's lack of cooperation with NOCA. Tr . *.2 02 (Dahlberg).28 i 28 f The hearing record reflects the following:

! Q: Mr Dahlberg, do you remember ever having a chat or a !
, discussion or off handed remarks with Mr, Farley about j NOCA where that [ cooperation problems between SONOPCO and NOCA] just came up? ' A: At this [May 5,1989] meeting, I remember it coming up as one of the subjects we discussed"). Tr. 1202 (Dahlberg). 56 l
On May 5, 1990, Mr. Dahlberg and Mr. Grady Baker met with Mr. , Farley. Mr. Dahlberg advised Mr. Farley that he wanted to increase ) Hobby's staff. Tr. 1819-20(Farley). Mr. Farley responded' that that would not be necessary because it would be duplicative to have one company reviewing another company on an ongoing basis. Tr. 1756 1 (Farley). Three days later, on May 8, 1990, Mr. Hobby received a l call from William Evans, GPC's Corporate Concerns Coordinator, ] advising Hobby that "Farley was going to make the call" about , matters related to NOCA. Hobby at 41; Also see Evans DOL Dep. at pp. 17-18 (" [Farley] would decide what to do with the transfer of those positions") . Mr. Dahlberg made the decision to eliminate NOCA following his meeting with Mr. Farley. Tr. 1229 (Dahlberg). EE. Georgia Power's Corporate Concerns and SONOPCO project On April 24th at 2:15 p.m., a GPC Corporate Concerns investigator, Bill Evans, phoned Mr. Hobby and told him that he was investigating a concern regarding SONOPCO's blocking GPC personnel stationed at Plant Hatch from transferring. to GPC's - Vidalia District office. Mr. Evans asked Mr. Hobby whether, as the interface between GPC and SONOPCO, he could resolve the concern. Mr. Hobby advised Mr. Evans that SONOPCO was also refusing to allow people to interview for positions within NOCA. Mr. Evans stated to Mr. Hobby that Mr. Dahlberg and Mr. Baker were going to discuss I this Employee Concern with Mr. Farley on May 5, 1989, and asked if he wanted to know if he tanted to add anything to that Corporate l Concern. Mr. Hobby provided Mr. Evans information that was l l l included in the written corporate concern provided to Mr. Baker { ! l l 57 , i l l-
before the May 5, 1989 meeting. See Hobby pp. 35-36; Intervenor's Exhibit 18. Lee Glenn, the manager of GPC's Corporate Concerns program, was aware of Mr. Hobby's concern over the reporting relationship within the SONOPCO project. Mr. Hobby met with Mr. Glenn to discuss the concern over whether Mr. Mcdonald was receiving management direction from Mr. Farley. Siq Hobby p. 36. On May 8, 1989, Mr. Hobby received a call from Bill Evans, the Corporate Concerns investigator. Mr. Evans advised that the Performance Engineer position was discussed at the May 5th meeting and that the decision to staff the position would be made by Mr. Farley. Diq Hobby p. 41. GPC asserts that Mr. Evans' statement to Mr. Hobby is inadmissible hearsay. We find that his statement is admissible not only because the circumstances here demonstrate its reliability, a but because the statement is not hearsay.2' j l 23 Federal Rule of Evidence 801(d) (2) (d) provides: ) A statement is not hearsay if ... (t] he , statement is offered against a party and is l
... a statement by his agent or servant !
. concerning a matter within the scope of his agency or employment, made during the existence of the relationship... A three-part test should be employed to determine whether a statement is not hearsay within the meaning of 801(d) (2) (D) ; For a statement to be admissible under Rule 8 01 (d) (2) (D) , the offering party must make a three-part showing. [1] The party must establish the existence of the employment relationship independent of the declarant's statement offered as evidence. [2] The statement must be made during the existence of 58
Mr. Head retired in May 1989 and Kerry Adams was named as his replacement. On or about May, 23 1989, Mr. Adams and his l l the declarant's ' agency or employment . ' [3] l The statement must concern a matter within the i scope of the declarant's employment. Boren v. Sable, 887 F.2d 1032, 1038 (10th Cir. 1989) (citations omitted). ' All three parts to this test are easily satisfied. First, Mr. Evans was employed (and continues to be employed) by GPC as'its ! Corporate Concerns program Coordinator. Second, Mr. Evans made the statement to Mr. Hobby that Farley would make the call in GPC's ; corporate of fices in response to an inquiry he had received from Mr. Hobby. Third, Mr. Evans specifically had been given-responsibility to investigate matters related to corporate concerns and, in particular, with respect to how GPC would respond to ! concerns raised by SONOPCO project employees. His statement, therefore, was made within the scope of Mr. Evans' employment. The facts here are similar to those in United States v. , Portsmouth Pavina Coro., 694 F.2d 312, 322 (4th Cir. 1982) , where the court held that a statement made by a secretary transmitting a i message from a member of the company is not hearsay under Rule 801(d) (2) (D) . In the matter before the Board, Mr. Evans was specifically relaying information he obtained from Mr. Glenn, his > boss and manager of the corporate concerns program. Similarly, in - Bauchman v. Cooper-Jarrett. Inc., 530 F.2d 529, 532 (3rd Cir. 1976), the court held that the transmittal by a third person of a statement made by management to a prospective employee is not hearsay. Once again, Mr. Evans' transmittal of a statement attributable to Mr. Glenn and/or his boss, Grady Baker, may not be excluded on the basis of 801(d) (2) (D) . r Finally, even if Mr. Evans statement was considered nothing -more than reiterating the statement of Mr. Baker through his chain of command, Fed.R.Evid. 805 provides: Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. In this case, Mr. Baker's statement conforms to an exception within the hearsay rule as does the statement of Mr. Glenn. There is no logical or legal reason to exclude Mr. Evans testimony because it is being offered as evidence for the truth of the matter asserted.
]
59
l
\
j
i 1 l l l assistant, Dan Shannon, met with Hobby. They advised him that Mr. Baker had asked them to pass on a message that Hobby was to hire no , ! l j more people. Previously, on March 22, 1989, Mr. Baker specifically l l l advised Mr. Hobby to staff the Performance Engineer. Egg Hobby p. , l i 41-42. FF. Performance Indicators Mr. Dahlberg was responsible for GPC's rate case before the i PSC and he selected GPC Executive Vice President Dwight Evans to manage the rate case for him. Hobby p. 43. Interest in establishing an acceptable performance indicator i was the subject of PSC attention for two years before the rate case l l commenced. Intervenor Exhibit 141 at p. 3579, 3583. Mr. Dahlberg l testified that he wanted an alternative indicator because he did l not want Georgia Power to get stuck with the standards recommended by the PSC witnesses. Tr. 1112 (Dahlberg). Mr. Dahlberg and Mr. Mcdonald had a major disagreement over how GPC would respond to the PSC's request for an alternative performance indicator from the company.2' Mr. Mcdonald determined that the company would not submit an alternative to the company and l would not allow SONOPCO project personnel to work on an alternative ! indicator. Dahlberg 17; Mcdonald 15. Mr. Farley alse opposed providing an alternative performance standard to the PSC. Tr. 1109 2' The performance indicator program eventually put in place by the PSC primarily functioned to assess GPC's economic performance of its nuclear units. NOCA's monitoring of SONOPCO's performance would encompass the total performance, including key and significant safety functions not associated with the PSC's financial-related performance indicators. Tr. 2309-2310. 60
m - e,.- a a .a , - ,--m. m a. ~,-n: -* i l r ! j (Dahlberg). Mr. Dahlberg determined that an alternative , performance indicator should be prepared for submission to the PSC. ! On August 10, 1989, Messrs. Dahlberg, Mcdonald and Evans met
to resolve the dispute. The discussion was so heated that Mr.
, i Mcdonald broke a rung in the chair in which he was seated. j91g ; i ! Hobby p. 43; Tr. 1105 (Dahlberg); Tr. 1504 (Mcdonald). At the conclusion of the meeting Mr. Mcdonald was instructed to begin- ; preparing a set of acceptable performance indicators Georgia Power ] could present to PSC if necessary. Mr. Evans met with Mr. Hobby af ter the August 10, 1989 meeting to tell him about the meeting, he stated that he believed that Mr. Hobby was going to get more help from GPC management in dealing l with Mr. Mcdonald in the future. Mr. Hobby was asked to send a l l , representative to the SONOPCO project meeting. Mr. Hobby selected ;
a member of NOCA's staf f, Gerald Johnson, to attend. See Hobby pp. j i
43-44. l l The meeting went forward as planned. In attendance were i Messrs. Farley, Mcdonald, Johnson, Barker and Hicks, as well as
just about all of the top management of the SONOPCO project. I Johnson Dep. p. 26 4
{ Upon his return, Mr. Johnson told Mr. Hobby about what i occurred during the SONOPCO project meeting, including the fact ; i that Mr. Mcdonald stated that he was not going to allow SONOPCO l l project personnel to prepare an alternative performance indicator: , When Mr. Johnson returned from the meeting he briefed me on it. He said that when the meeting began Mr. Mcdonald 61 4
i 0 1 l . . . 1 -said he was;not' going to let SONOPCO play any' role in ? [ preparing . testimony about an alternative - performance - l
indicator. program -- in defiance of what Mr. Dahlberg had 1 instructed. I was.. told that Mr. Farley~ attended: the j l meeting and - provided ' direction as to how:the SONOPCO l l project would handle the issue. ..
i i ' The information1I received " from then meeting was "that Mr.
, Farley would decide what role GPC employees at the'SONOPCO- ;
1, project would play 'in developing alternative . performance - i standards ---not Mr. Mcdonald -- even after.Mr.' Mcdonald had -
.j received. specific instructions from Mr. Dahlberg. i lt Hobby.pp.-43-44. 'f
[ I- Mr. Johnson testified that. the decision ' not. to work - on : an ! j alternative performance indicator was a joint decision made by Mr. ! ) Mcdonald and Mr. Farley and that this decision was made during the f
: meeting' held at the'SONOPCO project:
Q: What was decided at the meeting? l ; l A: .The meeting at-SONOPCO?. -l { Q: .Yes. l ! A: .The . information ~ was presented' and my understanding'. is ! 1 that .SONOPCO was going. to 'be working 'on~ rebuttal {
testimony and my understanding was.that reasons why we- i should not have a performance indicator, not the fact that we would have an alternative performance indicator

but why we shouldn't have an' indicator.
Q: Who made that decision? i l j - A: Upper management in that room. As I said,' Mr. Farley and-1- Mr Mcdonald were all' in there. So it was kind of a joint. It was my understanding that it was a. joint
decision.
Johnson Dep. p. 38-39. Mr. Hobby also spoke to Mr. Michael Barker about'the SONOPCO .l } i project's refusal to work on an alternative performance indicator. l Mr. Barker confirmed that Mr. Farley attended'the meeting and that Mr. Farley provided management direction to Mr. Mcdonald during the E 1 62 a i l 1 e
,- -n -, , - -
meeting about what information the SONOPCO project would provide i with respect to an alternative performance indicator. Egg Hobby p. l
44. Mr. Johnson also spoke with Mr. Barker and with Mr. Hicks, )
both of whom confirmed that they were instructed not to do any more work on an alternative performance standard and that this directive came from SONOPCO project upper management. Johnson Dep, p. 29. Also see Section IV (G)(7) of this Order for a further discussion of alternative performance indicators. GG. Negotiations with Oglethorpe By August of 1989, GPC's negotiations with Oglethorpe were at a stalemate. No negotiations were scheduled to resolve their respective differences. Egg Hobby p. 44. In August, 1989, Oglethorpe's Dan Smith told Mr. Hobby that he still had great concerns about who Mr. Mcdonald reported to and he said he had done all he could to resolve the matter. He stated that Oglethorpe wanted to resolve its dif ferences with GPC relative to SONOPCO so that SONOPCO could be incorporated as quickly as possible. Mr. Smith stated that Oglethorpe was willing to separate 1 I the nuclear issue from any other outstanding issue and he was willing to immediately begin discussions with Hobby to resolve all 1 issues related to the formation of SONOPCO. Sag Hobby p. 44-45. i Hobby advised Mr. Baker about Oglethorpe's proposal. Mr. Baker immediately phoned Tom Kilgore, Senior Vice President at Oglethorpe. Following their discussion, Mr. Baker authorized Hobby to commence negotiating with Mr. Smith. Mr. Baker placed one condition on the negotiations: Hobby had to keep the discussions 63
confidential so that Mr. Farley and Mr. Mcdonald would not learn of i them. Oglethorpe agreed te the condition. Oglethorpe took I l precautions not to alert Mr. Farley to the discussions. SAq Hobby
p. 45. At the same time, Georgia Power knew that Mr. Farley was involved in the negotiations. Meier Dep. 7-8. l l
During the course of the negotiations, Oglethorpe and Georgia Power reached an understanding that any agreement reached between them would officially be transmitted to Georgia Power as if it were a proposal originating from Oglethorpe Power. To accomplish this, drafts of the agreement would be reviewed secretly by Georgia Power, and after it was tentatively approved, the draft would be transmitted to Georgia Power by Oglethorpe. Sgg Hobby p. 45. 1 In order to keep the negotiations confidential from SONOPCO , project, it was agreed that Mr. Smith would keep all proposed agreements on Oglethorpe's computer system. The final draft was reviewed and approved by GPC's law firm, Troutman Sanders, before it was officially transmitted to GPC from Oglethorpe. Troutman l Sanders comment on the final draft was that language should be included to " avoid any accusation that SONOPCO is operating the plants without a license." See Hobby pp. 45-46; Intervenor's Exhibit 20. Following Oglethorpe's transmittal of the draft to GPC, Mr. Hobby was removed from the negotiation. He was replaced by John Meier, a SONOPCO project employee reporting directly to Farley. See Hobby pp. 46-47 64
HH. The Company-wide management review After Mr. Dahlberg became CEO of GPC he decided to initiate a company-wide management review. At'the end of 1989, Mr. Dahlberg completed this company-wide review of management to " assure [himself) of the qualifications of the management of Georgia." Dahlberg excluded GPC's entire nuclear operations from review. Eg.g Dahlberg at 16, Tr. 1185-86 (Dahlberg). II. Georgia Power did not prepare a performance evaluation for Mr. Mcdonald The record indicates that Georgia Power did not prepare an 4 independent evaluation for Mr. Mcdonald. Rather, Mcdonald's evaluation was prepared Alabama Power's CEO, Mr. Harris and J. i reviewed by Mr. Farley. Mr. Dahlberg apparently did not sign the ' evaluation but was called to see if he wanted to add anything, t which he declined to do. Tr. 1861-62 (Farley). , 2 JJ. Preparation of GPC's Nuclear Budget The handling of GPC's nuclear budgets changed with the formation of the SONOPCO project. GPC's nuclear operating budgets were prepared by the SONOPCO project and reviewed by Farley. Thereafter they were included in'a presentation attended by the SONOPCO project board. Mr. Farley testified that in May of 1990, l before SONOPCO was legally incorporated, he thought the budgets "were the best that could be done...I blessed them, yes, I did." i i i Tr. 1782-83 (Farley). With respect to the 1990 nuclear operating' budget, Mr. Hobby l received calls from Oglethorpe as to whether the budget had been approved. In December of 1989, Hobby called Mr. Jef f Wallace, 65 i
Manager of Resource Management, and asked him the status of the nuclear budget. Mr. Wallace told him the budget had been approved at a meeting of The Southern Company management council and further that Dahlberg had disagreed with the proposed budget and Addison had said, "That's it. That's the budget." Hobby at 47-48. ~ Another NOCA employee, Mr. Gerald Johnson, had come out of GPC's budgeting department. Mr. Johnson testified that from talking to the GPC budgeting people he learned that the 1990 nuclear budget was approved by "the Board out of the Southern Company," that included all the operating company presidents and that the only GPC budget not approved by the GPC management council was the nuclear budget. Johnson DOL Dep. at pp. 41-42. The budget process was to be prepared by the SONOPCO project and presented to GPC's Management Council and from there to GPC's Board of Directors. Tr. 1241 (Dahlberg). Mr. Hobby, as General Manager of NOCA, was given specific responsibility by Mr. Dahlberg to evaluate the budget coming from the SONOPCO project and advise senior GPC management accordingly. Hobby p. 20. GPC's 1990 nuclear budget was prepared by the SONOPCO project in Birmingham. Tr. 1240 (Dahlberg); 1780-1781 (Farley). At no time during the preparation of GPC's 1990 nuclear budget did the SONOPCO project provide NOCA access to a draft of the budget. Moreover, when the final proposed SONOPCO project budget was issued, NOCA could not get a copy from the SONOPCO project but, through its access to E-Mail, NOCA obtained the proposed 1990 nuclear budget from Oglethorpe Power. S.gg Hobby p. 47. 66
Oglethorpe wanted to know where the proposed SONOPCO project budget stood and whether it was going to be accepted by GPC. So Mr. Smith repeatedly inquired NOCA whether the proposed SONOPCO project budget had been approved. To respond to Mr. Smith's inquiries, Mr. Hobby spo,ke with the responsible manager within GPC's Resource Management department, Mr. Jeff Wallace. Mr. Wallace had responsibility for managing GPC's budgeting process with GPC's Managemen'; Council. Mr. Wallace advised Mr. Hobby that GPC's nuclear budget had been approved by the Southern Company management group; that Mr. Dahlberg was not pleased with the nuclear budget and raised the matter with Mr. Addison who told Mr. Dahlberg "that's it." Mr. Wallace told Mr. Hobby he received his information directly from Mr. Dahlberg. Mr. Hobby then asked Mr. Gerald Johnson to call Mr. Wallace about the status of GPC's nuclear budget. Mr. Johnson advised Mr. Hobby that Mr. Wallace provided him with the same information Hobby had received. Hobby
p. 47-48.
Mr. Warren Jobe was GPC's chief financial of ficer and a member ! of GPC's Management Council. Tr. 1235 (Dahlberg). Mr. Jobe testified that it was possible that GPC's 1990 nuclear budget was not approved by GPC's Management Council. Jobe Dep. pp. 42-44. KK. Termination of Allen Mosbaugh Mr. Dahlberg initially testified that he could not recall i speaking to Mr. Farley about whether Mr. Mosbaugh should be terminated for tape recording. Tr . 113 0 (Dahlberg). Additionally, in a sworn affidavit dated July 24, 1991, and when testifying 67
l during the Mosbauch Section 210 proceeding, Mr. Dahlberg failed l l to mention any discussions with Mr. Farley when discussing from j 1 whom Mr. Dahlberg received termination recommendations regarding Mr. Mosbaugh's tape recording activity. Tr. 1133-1134 (Dahlberg). Mr. Farley specifically recalled discussing it with Mr. Dahlberg I ) and recommending to Mr. Dahlberg that Mr. Mosbaugh should be , terminated. Tr. 1832 ~ (Farley) . Mr. Dahlberg-then testified that i he was "sure" that Mr. Farley expressed to him the opinion that Mr. Mosbaugh should be terminated. Tr. 1131 (Dahlberg).
a i LL. GPC's management Council GPC's Management Council was made up of executives of GPC. It functioned as a policy-setting body and made corporate decisions concerning resource allocation. Tr. 1100 (Dahlberg). Mr. Dahlberg believed it was important for the senior officers of the company, :
including nuclear, to periodically review policy decisions that needed to be made, to review budgets, to review the vision and , mission statements and corporate goals of the company. Tr. 1098- ) i l 1099 (Dahlberg). The management counsel attempted to operate by consensus. Any unresolved matters were resolved by Mr. Dahlberg. ,1 Tr. 1100-1101 (Dahlberg). Mr. Mcdonald stopped functioning as a . member of GPC's Management Council in July of 1989 and GPC asserted in sworn interrogatory responses that he was not a member. Intervenor Exhibit 144. MM. Nuclear Oversight Committee j l 68 1 J i
I GPC's Board of Directors established a nuclear operations overview committee (" Nuclear Committee").25 Tr. 1242 (Dahlberg). This Committee consisted of outside board members, none of whom' ] have a background in the area of. nuclear power. Tr. 1243 (Dahlberg). l Mr. Dahlberg attended his first Nuclear Committee meeting on 7-21-88 and regularly attended Committee meetings until he left l GPC. . i Mr. Mcdonald attended all of the Committee meetings between May 23, 1988 until his retirement in 1993. j Mr. Scherer attended all of the Committee meetings between May , 23, 1988 and May 17, 1989. The first Committee meeting held after ! May 17 1989 occurred on July 24, 1989. -Replacing Mr. Scherer as a regular attendee of the meeting is Mr. Farley. With the exception I of a special 40 minute meeting held on April 18, 1990, Mr. Farley attended every Committee meeting held during the next three years (July 24, 1989 to July 30, 1991). Moreover, Mr. Farley's ; I involvement coincides with his name being added to the plant Vogtle Corporate Emergency Telephone Director under the heading "GPC l 1
-Corporate Management" (which occurred on 6-29-89) and reflects Mr. -
Farley's replacement of Mr. Scherer as the chief executive over i GPC's nuclear operations. GPC did not volunteer that Mr. Farley regularly attended GPC's Nuclear Oversight Committee meetings.for of three years. Until the records of these meetings were provided 25 Appendix B attached hereto is a chart depicting the dates and attendees of the Nuclear Committee. i 69 l l
i l l I at the Board's request, GPC painted a different picture of Mr. i Farley's involvement .28 The content of the Nuclear Oversight Committee's meeting l minutes contradict GPC's assertions in the April 1, 1991 2.206 ; 1 Response. The 2.206 Response asserts that the " sole" purpose Mr. ) J j Farley attended the Committee meetings was to report the status of l l l the formation of Southern Nuclear. Intervenor Exhibit 48 at p 21, ! i fn. 4. This assertion is unbelievable for the following reasons:
1) Mr. Farley continued to attend the Committee meetings .
after Southern Nuclear was formed. In the April 1, 1991 l l 2.206 Petition response, GPC asserts that as of January, l 1991, when Mr. Farley became CEO of Southern Nuclear, he l.
"had no management control over licensed activities or GPC personnel. . . [and] functions much the same as the CEO of SCS..." e S.eg Exhibit 48 p. 8 (2nd full paragraph) .
Yet, Mr. Mr. Farley attended all of the Committee meetings held in 1991. In comparison, between May of 1988 and the end of 1994, the CEO of SCSI never attended l a single Committee meeting. Mr. Farley did not function in the same manner as the SCS CEO. ;
2) Committee minutes and agendas indicate that Mr Farley did .
not make presentations about Southern Nuclear during most I of the meetings he attended. For example, the July 24, 1989 meeting Agenda is so detailed that, had such a t presentation been made, it would have been reflected l l (i.e., the Agenda provides: 10:00-10:05 Opening Remarks ! l by Committee Chairman; 10:05-10:20 Status of Plant Hatch l by McCoy; 10:20-10:35 Major Problems list Discussion (McCoy); 1055-11:05 Break; 11:05-12:00 working lunch; 12:30-1:00 p.m. Questions and Discussion; 1:00-2 :30 plant i tour. See Project No. 072660. No time was allotted for l l Mr. Farley to make a presentation about the status of
SONOPCO. Moreover, the minutes of the meeting l specifically state that the Chairman of the Committee
" conducted the meeting in accordance with the agenda" and that the minutes are "an accurate account of the meeting." e S_eg Project No. 072657; 072659; also see i Project Nos. 072663-072669 (January 30, 1990 Committee
minutes are an accurate account of what occurred and do 26 Due to the late submission of the Nuclear Committee minutes, cross oxamination of licensee's witnesses did not occur.
70 l
l not reflect reference to briefing ' by Farley).1' As would be expected, the agenda and Committee minutes specifically reflect when Mr. Farley did make a presentation. See Project No. 072676 (July 31, 1990 meeting agenda allotting between 12:10-12:40 p.m. for "J.M.(Joe) Farley" to brief Committee on the " Status of SONOPCO") ; and Project No. 072683 (July 31, 1990 meeting minutes stating "Mr. Farley gave a status report on the Southern Nuclear Operating Company Project") . 1
3) Mr. Farley did not need to attend the meetings in order I for the Committee to obtain a briefing on the status of 4 SONOPCO. The regular attendees of the meeting, including )
Mr. Dahlberg and Mr. Mcdonald, were capable of providing the Committee information on the status of SONOPCO. For example, on March 15, 1989 (after Mr. Farley was elected Executive Vice President-Nuclear), the Committee minutes denote that Mr. Dahlberg briefed the Committee on "the status of Southern Nuclear Operating Company (SONOPCO) . " E22. Project No. 072638.
4) Mr. Dahlberg's explanation of the purpose and function of the Committee demonstrates that Mr. Farley would have been involved in discussions related to operational issues, safety matters and the major problems which developed at GPC's nuclear plants. According to Mr.
Dahlberg: That committee would review the performance of our plants -- not cost performance, but safety performance. It would include periodic visits to each of the nuclear plants. It would include periodic reports from the nuclear officers responsible...We would go through the top ten problems with that oversight committee. Here is the problem we are incurring, here's what we're doing about it, here are the resources that are involved, here's the anticipated completion date. . So that board had a complete review ! periodically...I attended all the meetings of that oversight committee, and as we went through the issues that were in front of us, they asked
; questions of nuclear management about what they
were doing on a particular issue, did other plants have the same problem, how were we gathering that information. . .how we were measuring our performance l ,
against others...I should add one more thing. They did receive reports also. If we had received a rating from NRC, the SALP ratings, they would have l' No agenda exists for this meeting. 71
. . - - ~. - , . .. . . - . .-~ . .- . .-
l reviewed that. . .So they asked questions about ' that, - INPO. reports'and those types of evaluations that we l received. Tr. 1242-1245 .(Dahlberg) . _ i Based on'this explanation of.what was occurring during I the Committee meetings, it'is simply inconceivable that- j Mr. Farley would not have been involved with discussions ; concerning GPC's: nuclear. operations, safety. performance- !
-and problems occurring at GPC's nuclear plants.
l
5) .Mr. Farley's appearance at - the' Committee meetings is !
associated with Mr. Scherer's departurei .Mr. Farley was j named-as Executive Vice President-Nuclear in-February of- , 1989 and commenced functioning 'in that. position on March- l 1, 1989. The Committee met-;three times after. March:1,; 1989 before Mr. Farley commenced' attending the meetings- i j (3-15-89; 4-27-89 and 15-8 9) . Moreover, between-May t 1988'. and May 1989, Mr. -Farley did not ~ provide the { committee with a single briefing about the status of the-formation of Southern Nuclear although during this time j period ~a) the SEC ' petition was filed ' (6-88) ; b) l Oglethorpe intervened (9-88); -and c) -GPC's nuclear. : operations were transferred to the SONOPCO project.(11- i
88) . . The Committee records rather reflect a achanging'of' ,
the guard," Mr. Scherer departed and Mr. Farley arrived. l q l l The Nuclear Committee.was-not established to make managerial i 1 recommendations; the members of the Committee did not consider ! themselves expert enough to do so. Tr. 1244-1245L(Dahlberg). Mr. Dahlberg's role on the committee was to participate in~ the discussions and to. assure follow-up where necessary. Tr, 1244 ) (Dahlberg). l l The information provided.to the Nuclear Committee.was never j l presented to GPC's Management Council, including the top 10 j i problems list; INPO reports; and NRC evaluations. l NN. Mr. Dahlberg reliance on the Crisis Management plan to cover Georgia Powers' response to a nuclear' accident 72 I
J. l i.a, '
- An indication- that Mr. Dahlberg was out of touch .with nuclear .;
i operations is his discussion at a Management Council meeting of the J. .
need to cover nuclear accidents as part of GPC's Crisis Management !
j Plan. Tr. 1232 (Dahlberg). This plan'is separate from the Vogtle i j Emergency Plan, which Mr. Dahlberg ' testified he never reviewed. l 4 i j j Id. To the extent Mr. Dahlberg wanted to change or understand"what' j would. occur in case of a nuclear accident, he should have. reviewed i -
j. the plant Vogtle and plant Hatch Emergency Plan ' rather. than .i
.. j l
attempting to ' alter a crisis management plan to accomplish what the i . 3 Emergency Plan already_should accomplish. I i ; j 00. Outage Philosophy
Mr. Farley oversaw the introduction of GPC'a nuclear operating - ,
i philosophy." Mr. Farley specifically remembered . discussing - l l ! j nuclear operating outage philosophy for theLSONOPCO project, in'a j , management type of meeting, he could not remember if it was:at a -{ , I " One of the Mosbaugh tapes includes the following " ]
- statement of Mr. McCoy that was made on-August 6, 1990 at the plant' .
Vogtle site:
- Let me make a comment again and be.sure that
, everybody understands this because -- there's c been some ; discussions in some of the other plants of SONOPCO that we're not adhering'to. , this and so we had some discussion at the highest levels including Mr. Farlev, Mcdonald, I Hairston 'and the three-- VPs about our i schedulina chilosochv for- outages...The conclusion of that discussion was that optimum l ~ means the basically shortest schedule that you i are.able to do something in -- everything goes right. That you do not put any contingency or
extra time in there and after lots of i discussion everybody aareed that that was the j i richt way to do the schedulina. ;
1 Egtg, (Exhibit 5). fe 73 , n.
-.y - - - --q w ww--+ -- o- e e---#-
'SONOPCO projecc " retreat" headed by Farley that was attended by all ! -SONOPCO project executives, and excluding Dahlberg. Tr. 1840-41 (Farley). However, he did remember that there was agreement that !
you shouldn't put a lot of contingency time in 'your outage j planning. Tr. 1841.(Farley). Mr.'/arley's involvement with the ! implementation of GPC's outage philr> sophy was discussed with plant' l Vogtle site personnel. Interver.or Exhibit 5 ("McCoy: ...we had some discussions at the highest . . levels including Mr. Farley,- , Mcdonald, Hairston and uh, the three VP's about our scheduling ) i philosophy for outages."). j
)
l i. 1 l l
i L
74
IV. STATEMENT OF LEGAL ISSUES (ILLEGAL TRANSFER OF CONTROL) Section 184 of the Atomic Energy Act prohibits the transfer of control of a license without first obtaining written and informed consent by the NRC: No license granted hereunder...shall be transferred, assigned, or in any manner disposed of, either voluntarily or involuntarily, directly or indirectly, through transfer of control of the license to any person, unless the Commission shall, after securing full information, find that transfer is in accordance with the provisions of this Act, and shall give its consent in writing. , 42 U.S.C. S 2234 (1982). Similarly, the Commission's regulations at 10 C.F.R. S 50.80 provide: No license...or any right thereunder, shall be transferred, assigned, or in any manner disposed of, either voluntarily or involuntarily, directly or indirectly, through transfer of control of any license to any person, unless the Commission shall give its consent in writing. Through the enactment of Section 184, Congress purposefully included one of the most comprehensive prohibitions ever enacted against any form of transfer of control of a license issued by the government of the United States: By section 184, Congress established a strong public policy prohibiting the ' transfer of control of any license' by every conceivable means, without the orior written and informed consent of the Nuclear Regulatory Commission. This broad and sweepina statutory lancuace was clearly intended to proscribe the alienation in any manner or form of any license or right to utilize or produce special nuclear material, without the specified j Commission action. The intecrity of the reculatory I orocess in this regard can only be maintained by the most scruoulous adherence to such statutory requirements, in reality as well as in form. Safety Licht Coro. (Bloomsburg Site), LBP-90-7, 31 N.R.C. 116, 129 75
l 1 i (1990) (emphasis added) . Such a comprehensive prohibition against ) a the transfer of control demands a conservative and strict . I interpretation of the concept of control, particularly given , i j Congress' recognition of public concern over nuclear power and the , public's right to intervene and challenge any legal entity seeking i t
the right to operate or control (either directly or indirectly) a l nuclear facility. This reasoning was applied in Safetv Licht

1 Coro., which explains:
The whole history of the commercial utilization of nuclear energy and materials in fraught with deep public
concern over the possible effects of any exposure to radioactivity. The entire subject has produced intensely i emotional reactions by a large segment of the population. i consequently, Congress has been very sensitive to the necessity of rigorous controls and close regulation of the entire nuclear industry. As a result, the regulatory framework it has established and charged the Nuclear i

Regulatory Commission with implementing is probably the f tightest and most pervasive of any commercial or
^
j. industrial activity in this country. i Against this background it is apparent that any 4 person or corporation that chooses to engage in licensed 2 nuclear byproduct material activities, is not completely free to conduct itself in a business-as-usual manner. There are substantial constraints upon unfettered ; business actions and forms resulting from a high degree : of regulatory oversights, direct or consequential. Not ! j surprisingly, such limitation apply to issues involving . i the direct or indirect transfer of licenses [or) l significant changes in corporate and other licensees... i I Safety Licht Corp., (Bloomsburg Site), LBP-90-7, 31 N.R.C. 116,
122 (1990). j Although more abstract then hardware mechanical problems, the issue of control is perhaps the single most important safety issue at any nuclear facility. The issue of control determines who will control and have responsibility for every safety feature of the 76 4
i j
licensee. It determines who has the ultimate responsibility to ! insure that a licensee fully complies with every federal law and regulation governing a nuclear power plant. Far from being a mere technicality, the control of a license determines where the " buck stops" on every regulatory and safety matter. l Material false statements regarding the issue of control implicate core Congressional and regulatory mandates. When the NRC, through the powers granted by the U.S. Congress and federal law, grants a license to a person or corporation, that grant cannot be circumvented, directly or indirectly - by wilful conduct or by abdication. The alienation of control constitutes the complete negr. tion of the Congressionally mandated regulatory scheme. Any false statement made by a licensee related to the issue of control must be severely sanctioned. A. What is the SONOPCO project and is it sufficiently distinctive from Georgia Power to constitute a separate entity under Section 184 of the Atomic Energy Act such that a transfer of control could occur? Section 184 of the Atomic Energy Act prohibits the transfer of a nuclear license to any " person" without the proper authorization from the NRC. As a threshold matter, the Board must determine whether the SONOPCO project was a " person" within the meaning of Section 184. The term " person" as used in the Commission's regulations is defined very broadly in 10 C.F.R. S 2.7 (emphasis added) as: (1) any individual, corporation, partnership, firm, association, group, government agency other than the Commission... Applying this definition we have little doubt that the SONOPCO 77 1 l 1
_ _ _ __ ._ _ _ _ .=. __ ._ _ . . .-. .~ l l
)
t project constitutes an " association" within the meaning of 10 -l l C.F.R. S 2.7. j The term " association" is defined in Black's Law Dictionary, ! i Fifth Edition, in the following manner: ! t The act of a number of persons in uniting together for ! some special' purpose or business. It is a term of vague ; meaning used to indicate a collection or organization of persons who have joined together for a certain or common object. ! , i l- Black's Law Dictionary, 5th.ed. (1979). j i Relying on this. definition, we examine whether the "SONOPCO : 1 project" qualifies as an " association." -} There can be no doubt that the SONOPCO project fits into the-classical definicion of an association: it represents the joining ! I i together of a number of persons for the single purpose of operating ; I ; all of the Southern Company's nuclear plants with the common goal !
'l l of increasing operational efficiency. l l !
The fact that the '3ONOPCO Project was functioning as an i I association is established by the record as a whole. For example, l the contemporaneous utterances made by GPC's attorney, Mr.
]
Schaudies, in January, 1989 to an administrative law judge that !
"there is not a nuclear organization within Georgia Power any l, longer" because the entire nuclear organization, with the exception {
of Mr. Hobby was under the "ambit of SONOPCO" and the statement of GPC's CEO and Chairman of the Board, Mr. Scherer, who testified in l ] December of 1988 that "SONOPCO exists in reality in' Birmingham, because we have brought together the corporate general of fice staf f ( of Alabama and Georgia, and also of Southern Company Services, into 78 _ _ .. - . ~ . - - -
i l l i one central location, with the responsibility of operating the I nuclear plants of the various operating companies," demonstrate the independent status of SONOPCO and SONOPCO's control over former GPC
; nuclear operations. Moreover, Mr. Farley, on April 4, 1990 sent a letter to all the employees stationed at SONOPCO project asking them to fill out a " Performance Pay Plan" or "PPP" survey. The 1
l survey requests employees to check their company and lists "SONOPCO project" as a company. Intervenor Exhibits.7 & 8. Thereafter, on August 6,1990, Mr. McCoy discusses the PPP survey results, stating l that " . . .Mr. Addison himself is '. coking at all of those [PPP survey results) from each of the operatin7 companies. SONOPCO being one of those and uh, the CEO's of each of the operating companies have i to answer to him personally on their performance..." Intervenor i , Exhibit 9. Finally, by March, 1989 GPC and the Southern System announced I to all of their employees in nuclear operations that the SONOPCO Project, would be headed by Mr. Farley, and that he had " assumed overall responsibility for providing management and technical
services for the nuclear power plants in the Southern electric i i l system." See Intervenor's Exhibit 89. The control over GPC's i i
4 licensed activities were, at this time, transferred to an l } association referred throughout the Southern System as the SONOPCO Project. B. What considerations govern to determine whether a transfer of control has occurred? Within NRC jurisprudence, there is little case law i
)
interpreting section 184 of the Act. The Safetv Licht case appears 79
i to be the only case considering the scope of section 184. In ] Safety Licht, the Appeal Board noted that transfer of stock would j s constitute a transfer of control because the sale vested the new - owner to direct all aspects of the company, including licensed . activity. Id. , at 365. Unlike Safety Licht, in this case, no stock has been transferred. We must therefore consider the question of whether some form of de facto transfer of control has s
occurred. We particularly find case law interpreting the Federal l Communications Act ("FCA") useful and instructive. We observe t
- that, as noted in Safety Licht, the AEA was modeled after the FCA. i Indeed, the FCA prohibition against transfer of control is-l'ess , stringent than that contained in the AEA and, if anything FCA case J law provides the minimum legal standard on what may constitute 4 transfer of control of a license under the AEA.1 l 2 4 In Safety Licht, the Board observed that the heightened
public health and safety concerns over nuclear power would, if anything, require stricter prohibitions against transfer of control

than discussed in case law interpreting the FCA. Safety Licht, 31

N.R.C at 364 ("given the manifest public health and safety implications of activities under nuclear licenses, it is reasonable

to assume that Congress would have been even more interested in clothing this Commission with the authority to pass advance judgment on the acceptability of transactions such as those now in
, issue"). It is common practice "to construe new legislation in the
light of analogous but unrelated prior legislation." Sutherland Stat. Const. S53.02 (5th Ed.). Employing the principle of analogy allows for the interpretation of statutes which are not specifically related but which " apply to similar persons, things, or relationships." Sutherland Stat. Const. S53.03 (5th Ed.). In doing so the court is able to give effect to the likely intent of the lawmakers and " establish a more uniform and harmonious system of law." Id. Uniform laws are commonly construed in light of provisions contained in other uniform laws. Sutherland Stat.
2 Const. S53.04 (5th Ed.). Interpretations of similar but unrelated statutes may be considered relevant. Id. Statutes that deal with 80
We initially observe that under the FCA, de facto control is strictly prohibited. It is well settled that ' control,' as used in the [ Federal Communications) Act and pertinent Commission rules, encompasses all forms of control, actual or legal, direct or indirect, negative or affirmative, and that the passage of de facto as well as de iure control demands the prior consent of the Commission." Stereo Broadcasters. Inc., 55 F.C.C.2d 819, 821 (1975).2 gigo gg_q S.W. Texas Public Broadcastina Council, 85 F.C.C.2d 713, 715 (1981); Lorain Journal Co. v. F.C.C., 351 F.2d 824 (1965), cert. denied, 383 U.S. 967 (1966); WWIZ. Inc., 36 F.C.C. 561, 579, 2 R.R.2d 169, 191 (1964); Astrolines Communications Como. Lim. Partnershio v. F.C.C., 857 F.2d, 1556, 1563 (D.C.Cir. 1988).3 public policy considerations should be construed in favor of the public's interest. "A narrow construction should not be permitted to undermine the public policy sought to be served." Sutherland Stat. Const. S56.01 (5th Ed.). Public policy is a manifest display of the values and norms of society and has a place in the decision making process. M. The fact that the AEA's alienation of control provision is based on the FCA, demonstrates that Intervenor's use of well established FCA case law interpreting the control provision is sound in all respects. , 1 2 It has been noted that the " licensing provisions on the Atomic Energy Act were based on those contained in the earlier enacted Federal Communications Act." Safety Licht Coro. (Bloomsburg Site) , ALAB-931, 31 NRC 350, 364 (1990). Accordingly, recourse to federal case law interpreting Section 310 (d) of the Federal Communications Act is appropriate. 2 Similarly, the concept of control is broadly construed by the Securities and Exchange Commission. For example, in Mvzel v. Fields, 386 F.2d 718, 738 (8th Cir. 1967), cert. denied, 390 U.S. 951 (1968) control was defined to included " indirect means of discipline or influence short of actual direction." Also see Richardson v. MacArtnur, 451 P.2d 35, 41 (10th Cir.1971) (" control" requires only some indirect raeans of discipline or influence short of actual direction) . Moreover, Shell v. Henslev, 430 F.2d 819, 826 (5th Cir. 1970), the court noted that the definition of control included de facto control of the officers and directors of the corporation. 81
NRC regulations published at 10 C.F.R. S 50.80 together with 10 C.F.R.-S2.7, expressly prohibits the transfer of control to an association. We find that the SONOPCO project is an association and under NRC regulations, a transfer of control did occur. C. What is a Holding Company and how does its corporate existence differ from Georgia Power? The Board has requested on several occasione that the parties submit briefs on the issue of whether The Southern Company, as l Georgia Power Company's parent company (or for that matter Southern ? 4 Nuclear, a wholly owned subsidiary' of The Southern Company) may [ exercise control over Georgia Power's operating license whether or not they are licensed operators. From the outset we note that the j term " person" as used in the Commission's regulations is defined in 9 10 C.F.R. S 2.7 includes corporations. Georgia Power and The ! Southern Company represent separate corporate entities. ; Accordingly, under section 184 of the Act and 10 C.F.R. S 50.80, a f j transfer of control between them is prohibited until such time as written consent is received from the Commission. 4 As a threshold matter, during all of the prehearing proceedings, the 2.206 proceedings and at the hearing itself, j Georgia Power never articulated or asserted that, as a holding ~ company, The Southern Company has the legal authority to exercise a control over an operating license issued by the Commission to one of its subsidiaries. To the contrary, Georgia Power strongly
denied that the Southern Company, through Mr. Addison or Mr.
Farley, has ever exercised control of Georgia Power's nuclear operations. 82
The plant Vogtle license in question separately identifies the owners of plant Vogtle from the licensed operator of the plant. 3 While numerous owners are listed, only one licensed operator, l J ! Georgia Power, has ever been identified as the licensed operator of the plant. A licensed operator need not have any ownership i 4 interest in a nuclear plant. In fact, the present license amendment specifically requests that Southern Nuclear, which will i not have any ownership interest in plant Vogtle, become the sole q licensed operator while Georgia Power is to retain its ownership i interest. [ Where a change in control over an operating license can impact on public health and safety, mere change in ownership, without E more, does not. Drake v. Detroit Edison Co., 453 F. Supp. 1123, i 1131 (W.D. Mich. 1978). In Drake,'the Plaintiffs charged that the i . sale of 20% of a nuclear power plant being constructed by the Detroit Edison Company, to two electrical cooperatives violated , r l various sections of the Atomic Energy Act. Drake v. Detroit Edison i j Co., 443 F.Supp. at 835 (" Plaintiffs contend that the sale amounts to an acquisition of a nuclear facility by-the co-ops without a
; license amendment. . . prior to NRC approval . . . . "). The court j
found that the plaintiffs did not have standing because the transfer of ownership did not amount to a transfer of control over the license and, as such, the plaintiffs did not have any interest upon which standing could be granted. .Id. at 1128-29. The court stated that: Any interest plaintiffs possess with respect to the public health and safety will be injured by the 83
construction and coeration of the nuclear facility, not , by the transfer of an ownershin interest therein. I i JJ. at 1131 (emphasis added).* The purpose of the license requirement is to " provide adequate examination by the NRC of such factors as safety features. . . I competent supervision and operation of nuclear facilities. " Drakt-443 F.Supp. at 837. ; l 1 We find that an ownership interest does not imply any right to l control or interfere with the licensed operator's management and control over plant operations.5 We next examine whether The Southern Company's interest is anything more than an ownership ; interest. , Under law, a corporation that is solely owned or controlled by l l another corporation does not, by virtue of such stock-ownership ! l l alone, lose its distinct and separate legal identity. Era, e.g. ,18 1 l Am. Jur. 2d 555. Holding companies and parent companies alike are l l presumed to have a separate corporate existence and, as such, are i to be treated as a separate entity. Miller v. Robertson, 266 U.S. With respect to Drake, NRC staff issued a determination l as to whether the sale by Detroit Edison violated NRC regulations. i l .ggg letter of the Director of Nuclear Reactor Regulation to Dr. l Robert G. Asperger dated March 3, 1978. NRC staff stated in its letter that Section 184 of the AEA is " designed to ensure that a person cannot, without application to and permission from the Commission, obtain a license merely by acquiring control of a ' l licensee. p. 2, fn. (citing decision of Director of Inspection and l Enforcement, dated May 9, 1977, denying Request for Emergency action by Babcock and Wilcox Co. Pursuant to 10 C.F.R. 2.206 in Docket Nos. [omitted]). 5 If ownership alone was sufficient grounds to become i involved with the operation of Plant Vogtle, than Oglethorpe, who has a 30% ownership interest, should have had equal control over , Plant Vogtle's operation as did The Southern Company. 84 i I !~ i i
243, 255, 69 L Ed 265, 45 S Ct 73 (1924). At the time the licenses for plant Vogtle were issued, Georgia Power -- a separate and distinct corporate entity -- applied for and received licenses to operate the f acility. There is nothing in the record to indicate that the NRC was ever advised that Georgia Power was anything less than a separate legal entity. In fact GPC maintained in all it previous filings with the NRC and throughout the oral testimony of its then-Chief Executive Officer, that GPC (not the Southern Company) maintained full control and responsibility for plant Vogtle at all times.' 6 Most troubling in this respect was GPC's statement in their brief before this Board stating that holding companies, such as The Southern company, may have " effective corporate control" over licensed activities. GPC Brief at 73. Not only does this proposition run counter to the numerous filings GPC made with the Commission regarding control, it runs counter to the testimony of all of GPC's witnesses at the hearing, who attempted to assert that
" effective corporate control" remained within GPC. For example, CEO Dahlberg stated in his prefiled testimony that Mr. Farley did ,
not have authority to control licensed activities at Plant Vogtle j and furthermore, that: From the beginning of the phased formation of Southern l Nuclear we were very aware of our obligations under the ! NRC operating licenses. Pursuant to those obligations, we were careful to ensure that no entity or individual other than Georgia Power and its officers and employees were in control of licensed activities at its nuclear plants. Dahlberg at pp. 6-7. In any event, the legal authority relied upon by GPC, SECY 280, is not controlling on this matter. This SECY regulation concerned the control of assets, not the control of licensed activities. The Commissior was concerned with the licensees creating a " corporate veil t', avoid decommissioning costs" and the language referenced by GPC was dicta and unrelated to the issues involved in this case. However, the SECY doe, reference requests by licensees to 85
At the time the license for plant Vogtle was issued, Georgia . Power maintained a separate corporate existence from The Southern Company. At no time has Georgia Power indicated that its corporate existence was merged with The Southern Company. We find'that the operating _Jicense was issued solely to Georgia Power and that at the time of its issuance, NRC was under the impression that The Southern Company did not exercise control over Georgia Power such that their separate corporate identities could be disregarded. We therefore find that The Southern Company and Georgia Power are separate legal entities. Finding that The Southern Company and Georgia Power constitute l separate " persons," the question of whether an improper transfer of control has occurred turns on whether the separate corporate identities of Georgia Power and Southern Company disintegrated sufficiently so that their corporate identities merged. Case law demonstrates that stock ownership coupled with other circumstances , can result in the legal disintegration of the separate corporate existence between parent and subsidiary. Milco Ele ctronic Corn. v. United Business Communication, Inc., 623 F.2d 645 (10 Cir. 1980), cert. den. 449 U.S. 1066, 66 L.Ed. 2d 610, 101 S.Ct. 794. In this respect, when a subsidiary is so dominated and
" transfer indirect control of the license either through mergers '
between utilities or by utilities establishing new parent-subsidiary relationships." SECY-94-2 80, p . 5. In each of the cases j cited to in the SECY, the utilities in question informed the NRC Staff of their intent to " transfer indirect control," obtained explicit permission for the transfer and were subjected to an "added license condition" or " commitment" related to the transfer. 86 1
. ..- . - . . - _ ~ . . __
J t controlled by its parent corporation as to render it merely an instrument or agent of its parent, the separateness of a corporate identity is no longer viable and parent and subsidiary become one l in the eyes of the law. Matter of Sims, 994 F.2d 210, 217-18 (5th Cir. 1993), cert, den. _ US _, 126 L.Ed. 2d 669, 114 S.Ct. 702 (1993) See Also Bercer v. Columbia Broadcastina System, Inc., 453 2 F.2d 991, 994 (5th Cir.), cert, den. 409 U.S. '848, 34 L. Ed. 2d 89, l 93 S.Ct. 54 (1972) ; Fisser v. International Bank, 282 F.2d 231, 234 (1960) (subsidiary nothing more than alter ego of parent company) ; Pasco International (London). Ltd. v. Stenoaraoh Coro., 637 F.2d l 496 (1980). Additionally, the fact that the Southern Company vests in its a ! ] Chief Executive Officer the proxy to vote the common stock of its
subsidiaries does not give the Southern Company or its CEO the j right to control the day-to-day management of Georgia Power

It is fundamental, as explained in percer v. Columbia j 4 Broadcastino System. Inc. , 453 F.2d 991 (5th Cir. ) , cert. l l denied, 409 U.S. 848, 93 S.Ct. 54, 34 L.Ed.2d 89 (1972), that 'one of the principle purposes for which the law has
created the corporation' is to give it an existence separate and distinct from its stockholders, thus giving them an opportunity to limit their personal liability.
, Id., at 994. The various theories for piercing the corporate veil have been created for . the purpose of l disregarding that separate legal identity in situations where equity demands it, such as when the owners have i misused the corporate form. . .g_e_q Krivi Industrial Sucolv Co. v. National Distillers & Chem. Coro., 483 F.2d 1098, ! 1102 (5th Cir. 1973). l l Matter of Sims, 994 F.2d 210, 217-18 (5th Cir. 1993). } ] Whether the separate and distinct corporate existence of i Georgia Power and The Southern Company merged is extremely 87 i
significant in this case because the license to operate plant- , Vogtle~is only in the name of the subsidiary,' Georgia Power. The, Southern Company may not avoid the burden of obtaining a. license to- , operate a nuclear facility simply by exercising control over .a subsidiary after the license.is issued. .'As the Supreme Court.of the United StatesLhas recognized,. a holding. company,Lin order to maintain its separate existence as a holding. company; ' cannot assume c j i control over a subsidiary. Consolidated Ro'ck Products Co~v. Du- l Bois, 312 U.S. 510, 522, 85 L.Ed. 982, 61 S.Ct. 675 (1940). ! i Under black letter holding company case. law,~ the decision.to ! obtain the original' license for plant.vogtle under the: ownership t and control of Georgia Power, and not under the control ~ 'of. The ' Southern Company, strictly prohibits The Southern Company from ! I using its ownership interest to control licensed activity. As a ! matter of law, The Southern Company is a - completely separate' l entity. Not only could The Southern Company not cont rol licensed- { activity at plant Vogtle, any role it may have had in the~ ' governance or management of plant Vogtle should have been . fully. l disclosed to the NRC. In fact, The Southern Company's role in ] management / governance at plant Vogtle was not properl'y disclosed to the NRC. Allowing a holding company to exercise control over'a nuclear power plant licensed in the name of a subsidiary would completely ; negate the law and regulations governing the granting of licenses for nuclear materials. Under this reasoning, every holding company- l l would avoid the burden of applying for and obtaining the right to l 88
. . _ , , , . . - . , . . - .. . . . . , , - . - _ , . . , - . . . . , _I
4 control and influence operational activity of a licensed operator i simply by obtaining the license in the name of one of its , subsidiaries. The law simply does not allow for this method for the transfer of control. See Sec.184 of the Atomic Energy Act, 42 U.S.C. 52234. The record before us is clear than the Commission has never given its consent in writing to any entity other than Georgia Power to operate plant Vogtle.' Under these circumstances, any realignment or restructuring within the Southern System which i' results in strengthening The Southern Company hold over Georgia Power's nuclear operations, may constitute either a direct or We are cognizant that The Southern Company's j responsibility for providing capital to Georgia Power was , recognized by the NRC. Georaia Power Co., (Alvin W. Vogtle Nuclear . Plant, Units 1 and 2). LBP-77-2, 5 NRC 261, 268-69 (1977). i Financial arrangements are contractual in nature and there is no i indication that The Southern Company's financial responsibilities l l included a contractual agreement for Southern to control the day to day management of Georgia Power. Rather, the involvement of . l Southern Company was no greater than the involvement of the other co-owners of Plant Vogtle who had even more direct financial
i responsibilities than The Southern Company. The regulations address the anticipated role of a parent company. Egg 10 C.F.R.
Pt. 30, App . A. These provisions make a clear distinction between
1 the licensee and the parent company. It is the licensee who has to '
provide notice to the NRC if the parent company guaran;ee cancels or can no longer provide financial assurance and who must provide for alternative financial assurance in the name of the licensee. , M. at III. B. This distinction in the regulations demonstrates that the licensee and it's parent company are considered to be 1 distinct entities with the parent company functioning as a financial guarantor. Another provision making this distinction is 10 C.F.R. Part 50, which requires information as to the parent company's financial capability to be given if it provides any of 4 the funds relied upon by the applicant, who is a newly formed entity. App. C, Sec . II . A. 2. This distinction can also be found in 10 C.F.R. Part 50, App. L, Sec. I.1. This section requires the applicant to undergo an antitrust review, which includes a review of "each corporate parent, subsidiary and affiliate". . 89 i ! P
. n . .-
j l j indirect transfer of - control. Indeed, Section 184 of the Act ! expressly prohibits any conceivable transfer of control without obtaining informed written consent of the Commission. With respect to Georgia Power's nuclear operations, a cognizable' transfer of ; control must occur when it can be determined.that the corporate identities between parent and subsidiary are altered such that the parent can influence day-to-day management direction. of- the subsidiary. A determination of whether t.he transfer of control of a license does not hinge on business necessity. Whether there is good cause for exercising control and whether a valid business reason _ justifies the action of the parent is not .a valid consideration: The strong public policy enunciated by Congress in i barring unapproved transfers of control of licensees is ! controlling, and hence there can be no avoidance of such mandatory requirements by NRC acquiescence, delays, laches or equitable estoppel, notification of SEC or its own shareholders, alleged business reasons as ' justification, spinoffs, or the provisions of 10 C.F.R. Part 50. l . I Safety Licht Coro. (Bloomsburg Site), LBP-90-7, 31 N.R.C. 116, 129 (1990). Regulations dealing with health and safety should be strictly construed. If Congress had intended that an. owner of a nuclear power plant, who is not the licensee, could control the operating license, it would have provided for such. In fact Congress did the opposite. Congress placed strict limitacions on who would be , considered the licensed operator of a nuclear facility. The Southern Company had no authority to exercise control over the 90 l
i 4 I operating license of plant Vogtle. ! D. Indicia of Control i Federal Communications Commission case law identifies the areas of' inquiry in cases of de facto transfer of control. Southwest Texas Public Broadcastino Council, 85 F.C.C.2d.713, 716 l (1981); Letter to Russo and Cohn, 5 F.C.C. Red. No. 26, at p. 7586 , (1990). In Shell v. Henslev, 430 F.2d 819, 826 (5th Cir. 1970), the court looked at de facto control and determined that control l vests in ' any person who has the de facto power to control the direction, management and policies of the corporation. ) Based on the various cases, we have determined that a number of factors are useful to determine whether a transfer of control i has occurred. Because ecch case is so different. there is no set formula we can apply. There are two independent areas that must be considered to determine whether a transfer of control accurred: First, whether ! Georgia Power's CEO, Mr. Dahlberg, abdicated control over Georgia Power's nuclear operations to The Southern Company, specifically Mr. Farley or Mr. Addison. Second, whether.the SONOPCO project functioned as a separate and distinct entity within the Southern system. l Based on the totality of the factors identified below, we find that a transfer of control did take place at least by the point in time that Mr. Farley became Executive Vice President-Nuclear of The Southern Company. E. Indicia Demonstrating Transfer of Control ; 91 l l l 1 I
-. - - -. . . .. . - . .~
1
.l l
i 1
1. Selection of Farley.to head SONOPCO ;
} In 1987 The Southern Company board .was in. the process of l i- deciding whether to establish a nuclear operating subsidiary. At . j j l this juncture Mr. ' Addison . met .in private with Joe Farley .(then President and ' CEO . of APC) . They jointly agreed that.Mr.-Farley , j ;
would emerge as the chief executive of a Southern' Company nuclear. !
operating subsidiary. Addison Dep. at p. 38, 45, 67. - GPC's CEO l was not included in the discussions about who would head SONOPCO. ] , Scherer.6/8/94 Depl. at pp. 47-48, 77.
2. Location of SONOPCO t
In 1987, Addison and Farley made the . decision' as . to where - SONOPCO would be located. Addison Dep. at p. 80. Moreover, .Mr. j Scherer, GPC's CEO at the time,. was never even asked where' Southern' i > Nuclear should be located (Scherer - 6/8/94' Dep. .at p. 48, and.Mr.
. .. t j Mcdonald, who was heading up GPC's nuclear operations, testified ~
I that he thought Mr. Addison did it. Tr. 1259 (Mcdonald). ~If- l 1 ! Mcdonald and Scherer were not involved in the decision to- move [ 4 ; GPC's nuclear operations, the decision 1 apparently rested with ;
i 4 Farley and Addison. The transfer of a nuclear organization is an important operational decision. The fact that it was made by ,
Farley and Addison demonstrates that GPC.was not in control of its f 3 nuclear plants. j 3. The functioning of a SONOPCO Project Board of .! J' Directors l i l f There is little doubt that a SONOPCO project board of ( directors commenced functioning when Georgia- Power's nuclear l 1 1 4 operations were moved to Birmingham. Specific reference to a ; l j 92 i , , a i d 1
~ ~ . _. )
i j-SONOPCO project board meeting is contained in the February 14-' 1989 , , entry in Mr. Addison's appointment schedule. Intervenor Exhibit' ) 31. Reference to additional SONOPCO Project board of' director. , meetings are also contained elsewhere in Mr. Addison's calendar and f in the calendar produced by.Mr. Dahlberg.- Both Mr. Addison's and' j i i J. Mr. Dahlberg's. calendar entry for March 6, 1989 reflect.that ~ the }' l- SONOPCO project. board met at-1:00 p.m. Intervenor Exhibits'31 & l j' 32. Moreover, Mr. Dahlberg' stated under oath that: . "There'was a l
board of directors for-the SONOPCO project,"' -Tr. 1173-(Dahlberg), ;
! i and later, during.the same testimony, mentioned the existence of l I j the .-SONOPCO . project board Id. At the . hearing Mr. Dahlberg 1
. testified that this board met and discussed issues related to the- !
i nuclear operations, including the preparation of the budget; cost ' i' of replacing condenser tubes at plant Hatch and outage schedules. Tr. 1181 (Dahlberg), and that decisions were reached during these ,
+ +
board meetings. Tr. 1180 (Dahlberg). l 4

j We conclude that the equivalent of a - functioning SONOPCO j l project board of directors did exist.
4. Farley heads weekly. staff SONOPCO project j staff meetings 3
j Mr. Farley's management over GPC's and APC's nuclear l operations included his .. initiating weekly.- SONOPCO project staf'f I j i
~
meetings. Long Dep.'at'pp. 48, 55 ("Mr. Farley would initiate-it, ' ) and the first thing you would'do is call on!the presiding.VP who { had projects reporting to him and ask for plant status"). These-weekly staff. meetings represent a key management oversight. j . . ! l mechanism covering all emerging and existing developments 93 , j l 4 a-7--ag-- -- - m ,-- -.' W -.# v h ---1.--- e m W-4 -n. . ,b h8e' T%4 + #
concerning the management, operation, and administration of GPC's l and APC's nuclear plants were discussed. Tr. 1848-49(Farley). Moreover, Mr. Farley testified that he was kept informed by SONOPCO Project staff concerning the performance of GPC's and APC's nuclear i units and that these reports provided him with the information he needed to brief The Southern Company Board. Tr. 1849-50 (Farley) ; also see, Shipman Notebook (Exhibit 29).
5. Farley visits GPC's nuclear plants to address changes in personnel evaluation and l compensation As the chief executive over nuclear operations, Mr. Farley went to the plant Vogtle and plant Hatch sites to discuss with plant management changes in personnel evaluation and pay that were

going to be implemented. Smith Dep. at pp. 50-51.
. 6. Farley's involvement with the Staffing of SONOPCO l l a) Ken McCoy In early 1988, Mr. Farley and Mr. Mcdonald determined that a Vogtle project Vice President needed to be installed. Mr. McCoy was hired because Mr. Farley, Mr. Mcdonald and other project employees felt that the position should be created. Farley at 25-
-2 6 .
b) Louis Long Yay SONOPCO staff responsible for nuclear operations includes ! the Vice Presidents of Administrative Services and Technical l l Services. The selection of these positions occurred without the knowledge of GPC's then CEO, Mr. Scherer. Scherer 6/18/94 Dep at
p. 81. Moreover, Mr. Farley personally met with Mr. Long and 94 i
i personally told him that he would be named as a SONOPCO Vice President. Mr. Farley's meeting with Mr. Long is significant because 1) Mr. Long did not report to Mr. Farley (Farley was at i that point CEO of Alabama Power Company, and Long was a manager with Southern Company services); 2) Mr. Long was specifically instructed to meet with Mr. Farley; and 3) this represents the - first time Mr. Long ever met with Mr. Farley. Long Dep. at p. 20. c) Charles McCrary In 1988, Charles McCrary was selected as Vice President of Southern Company Services to serve as Vice President' of Administrative Services for SONOPCO project. Farley at 22-25. ; GPC's CEO had no involvement. In this respect, Mr. Scherer I testified that all he knew was that Mr. McCrary "was an assistant i to Mr. Farley at Alabama Power Company and was later named a Vice President, I don't know in what role." Scherer 6/8/94 Dep. at 80. i Scherer had no role selecting McCrary as a SONOPCO project Vice President and did not know if he was even involved with the SONOPCO , project. Scherer 6/8/94 Dep. at pp. 80-81.
7. Farley controls nuclear operating negotiations with Oglethorpe
. In order for GPC to transfer its nuclear operations to SONOPCO, Oglethorpe and GPC had to implement an agreement on how they and the other co-owners of' GPC's nuclear plants would 3 reorganize their relationships. The key negotiations concerning GPC and Oglethorpe were conducted between Mr. Farley and Mr.
Stacey. Farley at 33.
8. Oglethorpe management observes Farley's involvement with -
95 4
GPC's nuclear operations The record supports the fact that during the critical.SONOPCO ! " Project" takeover' stage, Oglethorpe management, noticed a change in the management structure. Concerns were raised directly to high level GPC management, including Mr. Dahlberg, by the chief executive of oglethorpe. In this respect, ' Oglethorpe executive Dan
Smith noted in' writing that GPC's public statements as to who was running their nuclear facilities _was not accurate. Intervenor's Exhibit 17.

9. SONOPCO project managers identify Farley as head of GPC's nuclear operations Starting in 1988, Mr. Shipman was the general manager of Nuclear Support, reporting to Mr. McCoy. On August 5, 1994, counsel to Intervenor deposed William Shipman. At that time Mr.
Shipman testified that Mr. Mcdonald reported to Mr. Farley. Mr. Shipman testified then that he had been in a position to observe 4 the reporting relationship between Mr. Farley and Mr. Mcdonald for a number of years. The fact that plant Vogtle's general manager of Nuclear Support testified that Mr. Mcdonald reported to Mr. Farley is dispositive evidence of the reporting relationship in place at i i the SONOPCO project. l l Thus, not only was the reporting relationship obvious to Oglethorpe and NOCA, the SONOPCO project's management confirmed the l l actual reporting structure.
10. GPC's manager of NOCA identifies Farley as heading GPC's nuclear operations GPC's former manager of NOCA, Marvin Hobby, identified Mr. ;
96 I
1 1 l Farley as head of GPC's nuclear operations. This concern was l ' l shared, in part, by Mr. Hobby's supervisor, Senior Vice President ; George Head, who cosigned a confidential letter to GPC regarding i this issue. Stip. Ex. 33.
11. Farley has input to Mcdonald's annual reviews During the course of the Hobbv proceedings, Mr. Farley testified that Mr. Mcdonald's evaluation was prepared by Alabama ,
Power Company's President, Mr. Harris, who then discussed it with Mr. Dahlberg. Before the evaluation was issued, it was given to Mr. Farley for comment. Tr. 1861-62 (Farley).
12. Dahlberg excludes nuclear personnel from cosspany-wide !
review At the end of 1989, GPC's President and CEO, A.W. Dahlberg, l undertook a company-wide review of management to " assure [himself) of the qualifications of the management of Georgia. " Yet, Mr. l ,
Dahlberg gxcluded the entire nuclear management from review. Sag ;
Dahlberg at 16; Tr. 1185-86 (Dahlberg). .The exclusion of GPC's l nuclear operations from Mr. Dahlberg's review is a strong indication that GPC's CEO was not involved or in charge of the plant Vogtle and plant Hatch nuclear operations.
13. Dahlberg's inability to resolve GPC nuclear-related j personnel matters without involving Farley When nuclear operations were transferred to the SONOPCO project's offices in Birmingham, Alabama, Mr. Dahlberg decided te establish NOCA to oversee the performance of GPC's nuclear plants.
The manager Mr. Dahlberg selected to head'NOCA was Marvin Hobby, j who reported to GPC Senior Vice President George Head. Hobby 97
t I advised Mr. Head and Mr. Baker that the SONOPCO project was under instruction from Mcdonald not to cooperate with NOCA. SONOPCO project's interference with NOCA caused Mr. Head to meet with Dahlberg on more than one occasion in an effort to resolve the l matter. DOL Tr. 669 (Head). On May 5, 1990 Dahlberg and Grady i Baker met with Mr. Farley. Mr. Dahlberg advised Mr. Farley that he ; wanted to increase Hobby's staff. Tr. 1819-20. (Farley). Mr. Farley responded that that would not be necessary because it would be duplicative to have one company reviewing another company on an j ongoing basis. Tr. 1756 (Farley). A few days after the meeting (May 8, 1990) Mr. Hobby received a call from William Evans, GPC's l corporate concerns coordinator. Mr. Evans advised him that "Farley was going to make the call" concerning matters . related to the l staffing of NOCA. Sag Hobby at 35. Also see Evans DOL Dep. at pp. l 17-18 (" [Farley] would ' decide what to do with the transfer of those positions").
14. Farley blessed GPC's nuclear operating budget ,
GPC's nuclear operating budgets were prepared by the SONOPCO l , l project and reviewed by Farley. Thereafter they were included in l l a presentation attended by the SONOPCO project board. Mr. Farley l testified that in May of 1990, before SONOPCO was legally l incorporated, he thought the budgets "were the best that could be done...I blessed them, yes, I did." Tr. 1782-83 (Farley). This l \ l " blessing" occurred without Mr. Farley having any legal authority I over GPC's nuclear operations.
15. Farley and Addison approve GPC 's portion of the SONOPCO !
budget l l 98 t l l l
! l i l l l Not only did Farley bless GPC's nuclear budget but Mr. Addison ! also participated in its approval. In December of 1989, Hobby called GPC's budgeting office and spoke with Jef f Wallace, manager of Resource Management, and asked him the status.of the nuclear budget. Mr. Wallace told him the budget had been approved at a meeting of the Southern Company management council and further that Dahlberg had disagreed with the proposed budget and Addison had said, "That's it. That's the budget." Hobby at 47-48.
16. Farley directs plant outage philosophy

On August 6, 1990, the Vogtle project Vice President visited l 1 I the plant site. At that time Mr. McCoy made the following-I statement

Let me make a comment again and be sure that everybody understands this because -- there's been some discussions in some of the other plants of SONOPCO that were not ' adhering to this and so we had some discussion at the highest levels including Mr. Farlev, Mcdonald, Hairston and the three VP's about our scheduline chilosochv for outages...The conclusion of that discussion was that l optimum means the basically shortest schedule that you are able to do something in -- everything goes right. That you do not put any contingency or extra time in i there and af ter lots of discussion everybody aareed that i that was the richt way to do the schedulino. ! (Exhibit 5). l Mr. Farley's involvement in establishing the plant Vogtle and l l plant Hatch outage philosophy evidences his control over GPC's l ! nuclear operations. l
17. Farley rather than GPC briefs The Southern Company Board on the performance of GPC's nuclear plants After deciding that Farley would head up all of GPC's and l
L APC's nuclear operations, he provided briefings to The Southern l 99 l l
i l l Company board about the status of GPC's nuclear operations. These briefings are rather conducted by Farley. Tr. 1851-52 (Farley). 1 Significantly, Mr. Farley testified that he was kept informed by , I SONOPCO Project staff concerning the performance of GPC's and APC's j nuclear units and that these reports provided him with the I information he needed to brief The Southern Company Board. Tr. l 1849-50 (Farley).
18. Farley is involved in GPC's rate case before the Georgia Public Service Comunission with respect to nuclear issues Mr. Farley's control over GPC's nuclear operations extended to matters before the Georgia Public Service Commission ("PSC").
Moreover, Mr. Farley would review all the requests and " ensure they were handled in an expeditious" manner. Tr. 1803 (Farley). And l l Mr. Farley was copied on rate case documentation while Mr. Dahlberg i ! was not. S_9.g Farley Rate Case Memos (Exhibit 32). Finally, Mr. l l Mcdonald reached a point where he flatly refused to follow Mr. l Dahlberg's instructions concerning a nuclear performance indicator the PSC was considering imposing on GPC's nuclear plants. Johnson DOL Dep. at pp. 26, 29. The matter was finally resolved by Farley. Johnsc.n DOL Dep. at p. 39. l 19. Farley identified as top executive to be contacted by on-call project manager of GPC's nuclear plants i Periodically, the SONOPCO project prepared documentation concerning "on-call" management of GPC's nuclear plants. Basically the Vogtle duty manager was responsible for keeping the "on-call" project managers informed on a 24-hour-a-day basis concerning important events occurring at the plant site. Mosbaugh at 3. 100 l
l I I I l ! Documentation and procedures were implemented to ensure that proper j l management 'was contacted in the event 'of an emergency. GPC's' l l former acting assistant -general manager plant support, Mr. l Mosbaugh, would periodically serve as the plant Vogtle -duty manager. In that capacity, Mr._Mosbaugh was provided information ; concerning the procedures to be used. In this regard, typed-lists l were provided' to Mr. Mosbaugh. One' such list was entitled- ! " Telephone List - on-Call Project Manager. " Mosbaugh at 5. Mr. , 1 Mosbaugh was made aware that-persons listed under Georgia. Power : Company Corporate Management' were- to be contacted in descending order.from the top of the list. Mosbaugh at 5. The individual'at -
~
the top of the list ' to be ' contacted 'was Joseph M. Farley. . Egg , Mosbaugh at 5. I
20. GPC excludes listing nuclear operations managers from its ,
10-K form l The SEC requires GPC to file an annual Form 10-K report. Part ;
-l III, Item 10 (b) (2) of the 10-K report requires GPC to identify all l l
its executive officers. GPC failed to identify the existence of ; t l l any nuclear operations officers (i.e., Mcdonald, McCoy, Hairston, etc.). GPC's failure to identify all its nuclear officers demonstrates that it is neither in control nor in touch with its nuclear operations.' , I
Georgia Power failed to explain _the reason for' omitting i its entire nuclear organization from its-10-K filing. During the i summary judgment state of this proceeding,. Georgia Power argued that Intervenor - was unfairly using the omission f rom , the 10-K filing because no discovery was done and a perfectly logical reason ,
could explain the omission. Yet, when provided an opportunity to. ! l explain it, Georgia Power failed to do so. I 101 ! l
i i
21. The publication of Synoosis '
l The SONOPCO project publishing its own bi-weekly news letter out of its Birmingham offices. Significantly, the March 30, J 1989 edition of Synoosis. described Mr. Farley as having "overall , responsibility" of GPC's and PAC's nuclear operations. Intervenor Exhibit 89 at p. 1. Significantly, the editor of Synoosis, testified that this article approved in its final form by Mr. i Farley, Henry Dep. p.10, and Mr. Dahlberg testified that he expect i GPC employees who read the article to assume that Mr. Farley had ' overall responsibility for the operation of GPC's nuclear ' ; operation, nonetheless a correction or clarification was never T issued by GPC or Synoosis. Tr. 1226 (Dahlberg).
22. Admissions made by GPC agents e Statements made by a GPC attorney and GPC's CEO and Chairman !
of the Board constitute admissions that a transf'er of control ; occurred. Specifically, GPC's counsel stated "thore is not a nuclear organization within Georgia Power any longer." , ,
23. Mcdonald's failure to participate at - GPC Management Counsel meetings Georgia Power's Management Council was not operating as Georgia Power alleged in its response to the 2.206 petition. The record contains all of the Georgia Power Management Council minutes between May, 1988 and December 1990. Intervenor Exhibit' 135. 1 According to the Management Council minutes, between Augt:st, 7, 1989 and December 19, 1990 Mr. Mcdonald failed to attend a single Management Council meeting. The minutes further demonstrats that, 1
between May 1980 and December 1990 no one else beIonging to Mr, 102 i e
l l Mcdonald's organization, including Mr. Hairston and Mr. ; McCoy, j 1 participated at any Management Council meetings. If nuclear ! , i ! operat31ons remained under the control of GPC, then Mr. Mcdonald i should have continued to attend Management Council meetings and the j Management Council should have exercised the type of oversight reflected in GPC's 2.206 Response.
24. Lack of Knowledge and Involvement of Georgia Power's CEO !
(Abdication of responsibility) ; Since 1990 GPC has been subjected to numerous NRC investigations and reviews about the alleged wilful misconduct of I Bockhold and McCoy. Yet, Mr. Dahlberg was unaware that allegations of " wilful misconduct" had been filed against Vice President McCoy , and plant Manager Bockhold. Tr. 1152-53 (Dahlberg). For Mr. Dahlberg not to know the nature of these allegations, or that such ! serious allegations had been raised against two of the most i important managers with responsibility over plant Vogtle is shocking. It demonstrates a complete abdication of responsibility l and total absence of " hands on" management. On the other hand, Mr. ! l Farley not only knew of the charges, he knew who filed them; that ; there was tape recorded evidence in the possession of NRC relating to the charges. Tr. 1831-39 (Farley). Mr. Dahlberg's abdication of control is also evident by this ; i near total ignorance of nuclear operations in general and the operations of plant Vogtle in particular. Tr. 1149-51 (Dahlberg). l l 25. The creation and destruction of NOCA l Mr. Dahlberg established NOCA to monitor the SONOPCO project. Yet, Mr. Mcdonald refused to cooperate with NOCA. Een Mr. Head, I l 103 i I I I_
l the Senior Vice President over NOCA attempted to meet with Mr. Mcdonald to get Mr. Mcdonald and SONOPCO project to cooperate, he was stopped by Mr. Dahlberg who indicated that he first had to speak.with Mr. Farley. A May 5, 1989 meeting between Farley and Dahlberg was set up. Mr. Dahlberg was " beat about the head" during the meeting because NOCA had prepared a confidential memo explaining the cooperation problems and raising a question as to whom Mr. Mcdonald reported. Mr. Farley objected to NOCA and-it was disbanded.
26. Georgia Power did not have unfettered access to nuclear ,
operations personnel l Georgia Power did not have unfettered access to Georgia Power { l employees stationed at the SONOPCO project. The record establishes that GPC's CEO issued a letter establishing NOCA and instructing all GPC employees to cooperate with NOCA. Nonetheless, unfettered use of and access to Georgia Power employees stationed at the SONOPCO project were denied. NOCA did not have unfettered access to , necessary data and was directed to limit its contact to a non- l Georgia Power employee and to halt direct communication with the GPC and other employees comprising the SONOPCO project. Second, we are persuaded that, with respect to obtaining use ; l of SONOPCO's resources to prepare an alternative nuclear i i performance indicator for submission to the Georgia PSC, SONOPCO project management, including Mr. Farley, limited Georgia Power's access to the resources and data it needed to prepare a performance standard for submission to the PSC. Third, the decision to relocate Georgia Power's nuclear 104 l o
I 1 operations to Birmingham was made by Mr. Farley and Mr. Addison. l That decision hampered GPC's access to and management over its l nuclear operations. !
27. Georgia Power lost control of SAER ;
The Safety Audit and Engineering Review (SAER) group is !. l l located at plant Vogtle. This group functioned as the primary
Quality Assurance organization for the plant. This group's ,
! l functions are both " licensed activities" and " safety related". , i l Tr. 1665 (McCoy). The SAER group reports to the SAER manager in j i the corporate organization, who in turn reported to Ken McCoy. Tr. 1635 (McCoy). In January 1991, after Southern Nuclear was j incorporated, the entire SAER group at plant Vogtle as well as l the corporate SAER manager were converted from Georgia Power l employees to Southern Nuclear employees. Tr. 1656'(McCoy). At ; s this point Mr. McCoy was supervising the various groups at plant l Vogtle and within the SONOPCO headquarters wearing both a Georgia ; i . l l Power hat and a Southern Nuclear hat. Tr. 1515 '(Mcdonald) . [ Significantly, Mr. McCoy testified that the SAER group did l ! not report to him in his capacity as a Georgia Power employee. Instead, Mr. McCoy testified that the SAER group reported to him i under the Southern Nuclear side of his hat. Tr. 1656 (McCoy). Thus, the organization on the plant Vogtle site with the primary QA responsibility did not report through the Georgia Power chain of command. Instead, the SAER group reported through McCoy to 1 the SONOPCO/ Southern Nuclear chain of command. l Georgia Power has been staunch in its description of the i 105
l strict and absolute separation between the hemispheres of the multiple hatted individuals. Tr. 1515 (Mcdonald). It has stated that one side of the hat cannot direct any activity of the'other , side of the hat. Tr. 1526-1528 (Mcdonald). The individuals i reported up the chain to superiors with the same hat. Tr. 1515 .
(Mcdonald). This being the case, it is obvious that the SAER i i
group reported up the line to Mr. McCoy's Southern Nuclear hat to Mr. Hairston's Southern Nuclear hat to Mr. Mcdonald's Southern 1 Nuclear hat and then to Mr. Farley who reports to Mr. Addison. Thus, Georgia Power is by-passed, and lost authority and
^
management control over the licensed activities of the SAER group. !
Not only does this loss of control over the QA functions at plant Vogtle support Intervenor's contention that Georgia Fower did in f&ct alienate control over its nuclear operations, the l fact that the QA functions at plant Vogtle were'not even on paper reperting to the purported Georgia Power side of the SONOPCO project was never disclosed to the NRC. The failure to disclose , the reporting chain of the SAER group constituted a material j omission of Georgia Power's reporting requirements. F. Mr. Farley's early involvement with Georgia Power's nuclear
. operations establishes that a transfer of control of control has occurred.
It is well settled that the premature acquisition of control of a radio station by someone outsina the licensee's corporate organization can result in the transfer of control. Phoenix Broadcastina Co., 44 F.C.C. 2d at 839; Stereo Broadcasters. Inc. ! 4 ; 106 , f I
i ! i I 2 87 F.C.C. 87. At some point, apparently in March of 1989, Mr. Farley was i named executive Vice President, nuclear of The Southern Company, and Executive Vice President - Nuclear of SCS. Neither The ! Southern Company nor SCS ever had such a position in the past. l The creation of this executive position within The Southern l l Company demonstrates a fundamental realignment of The Southern Company's involvement with and control over GPC's nuclear [ operations. > The facts before this Board far exceed'those found in either Phoenix Broadcasters or Stereo Broadcasters. For example, with ; i respect to financial matters, Mr. Farley: 1) headed key negotiations with GPC's co-owners concerning financial f arrangements related to SONOPCO; 2) prepared testimony to the i Georgia Public Service Commission with respect to matters ! pertaining to GPC's rate case; 3) " blessed" GPC's nuclear budgets; and 4) reported matters pertaining to GPC's nuclear plants to the board of The Southern Company rather than GPC's CEO { l who was a member of The Southern Company Board. Second, with I respect to hiring and firing determinations: 1) Mr. Farley's deposition testimony establishes that he advised Mr. Dahlberg to ; l i terminate Mr. Mosbaugh; 2) Mr. Farley "made the call" whether j NOCA could be staffed; 3) Mr. Farley traveled to GPC's nuclear plants and advised the employees at the site about changes in i compensation and evaluation of performance; 4) Mr. Farley was 1 involved in selecting Mr. Mcdonald to head GPC's nuclear i 107 l
I I operations; 5) he was involved in the selection of most if not all of the SONOPCO executives, including Mr. Long, Mr. McCrary : l and Mr. McCoy; and 6) Mr. Farley was involved in preparing the 1
. performance evaluation of Mr. Mcdonald. Third, with respect to matters effecting operations, he was: 1) involved with the i
decision to relocate GPC's nuclear operations from Atlanta to : Birmingham; and 2) he convened weekly meetings of the SONOPCO i project's top management to discuss operational matters. The case before this Board has aspects that run parallel to FCC case law governing premature acquisition of control of a station license. In this respect, FCC prohibits prospective , purchasers of broadcasting stations from becoming involved in the station's operations in such a way that they would assume control of the station before the Commission has approved their application. Phoenix Broadcastina Co., 44 F.C.C. 2d at 839. l In Phoenix Broadcastina, the F.C.C. held that a prospective buyer could not be intimately involved in the day-to-day , activities of station KPHX because it would constitute a 1 premature assumption of control over the station's operating
. license. 44 F.C.C. 2d at 840. In this case the owner of the station and the prospective purchaser requested FCC permission to implement an in'.erim plan, while awaiting approval for the purchase, where the purchaser would furnish funds; be employed as i a consultant to design and assist in the implementation of the l change in programming format, sales and marketing; and would be involved with making . recommendations in the hiring and firing of
108 l
I t
station personnel. Most importantly, in an attempt to guard against the transfer of control, the agreement provided that all recommendations made by the purchaser, including those related to the hiring and firing of personnel, were to be " submitted to the owner in writing and his written approval must be obtained before any action is taken." 44 F.C.C. at 839.' The Commission held that despite these assurances, the purchaser would be intimately involved in the programming and commercial operation of the station and the hiring and firing of personnel. The Commission concluded that "the realities of such a situation...would appear to constitute a premature assumption of control contrary to Section 310(b) of the Act." 44 F.C.C. at 840." The Commission arrived at a similar decision in Stereo Broadcasters, Inc. 87 F.C.C. 87." This case involved a Rather than prepare a document delineating Farley's involvement, GPC sought to include language in documents it intended to forward to Oglethorpe so as to " avoid accusation of license transfer." gag Edwards Memo (Exhibit 20).
" Transfer of control cannot depend on labels given to the
. transaction by the parties; rather, it must turn on factual circumstances surrounding the transaction. Stereo Broadcasters. Inc1, 87 F.C.C.2d 87, 93 (1981); Town and Country radio. Inc., 28 F.C.C. 129 (1960) l
" In Stereo Broadcasters. Inc., 55 F.C.C. 819 (1975);
i modified on other arounds, 59 F.C.C.2d 1002 (1976), the Commission considered whether an employment agreement between the licensee and l a general manager which provided that the licensee retain " absolute ! control of the station" and required the general manager to obtain 1 prior authorization before entering into contracts or before making major purchases or instituting program changes. The Commission ; looked beyond the wording of the agreement to the actual state of affairs at the station, which included the licensee's absence for 1 109
l probational agreement between the owner of a station and a prospective purchaser under which the purchaser had the right to operate and control the station as well as obtain profits from ) 3 it. 87 F.C.C. 88 As in Phoenix Broadcasters, the agreement j l stated that the purchaser was to obtain approval from the owner i before making major decisions affecting the operations of the ; I station. The evidence presented established that the prospective purchaser had substantial control over the managing of the I station's finances, personnel, programming and other miscellaneous affairs with a significant decrease of control from tha owner. Therefore the Commission held that the agreement, and the purchaser's actions in implementing it, constituted an illegal transfer of control. 87 F.C.C. at 95-97. We find that Mr. Farley's premature involvement with Georgia Power's nuclear operations is singularly sufficient to find that
a transfer of control has occurred. '
V. STATEMENT OF LEGAL ISSUES (OMISSIONS AND MISREPRESENTATIONS l RELEVANT TO CHARACTER AND COMPETENCE) A. Statement of Law We now consider the relevance and applicability of the l omissions and misrepresentations Intervenor alleges were made by Georgia Power regarding the control issue.
1. Is the character and competence of the proposed licensee, Souther Nuclear, relevant to this proceeding? l l
1 a significant period of time and his practice of referring all problems to the general manager, to determine that control had been transferred. Id. i 110 j i
l On February 5, 1993, the NRC Staff answered the following question for the Licensing Board: To what extent, if any, is the character or competence of individuals already jointly employed by Georgia Power and Southern Nuclear in the management of Vogtle relevant to the accroval of the reouested license amendment? l l NRC Staff Response to Licensing Board Questions (" Staff l Response") at p. 4 (emphasis supplied) . The Staff's response to l the Board's question is well reasoned and we. adopt it. Staff's Response indicates that it is appropriate for this Board to consider the character of an applicant in a license transfer proceeding. Staff's Response at 5. The first case upon which Staff relies is Metrooolitan Edison Comoany (Three Mile Island 1 f Nuclear Station, Unit No. 1), CLI-85-9, 21 NRC 1118, 1136-37 l (1985), from which the Staff quoted the following passage: A generally applicable standard for integrity is whether there is reasonable assurance that the Licensee has sufficient character to operate the plant in a manner consistent with public health and safety and applicable NRC requirements. The commission in making this determination may consider evidence regarding licensee behavior having a rational connection to the safe operation of a nuclear power plant. This does not mean, however, that every act of licensee is relevant. Actions must have some reasonable relationship to
. licensee's character, i.e., its candor, truthfulness, willingness to abide by regulatory requirements, and ,
acceptance of responsibility to protect public health and safety. In addition, acts bearing on character generally should not be considered in isolation. The pattern of licensee's relevant behavior, including corrective actions, should be considered. [ Footnote omitted). Relying on Houston Lichtina & Power Co. (South Texas Project, Unitr, 1 & 2), CLI-80-32, 12 NRC 281, 291 (1980), Staff further states: 111
.- i k t ; e "~
In largeand'the nature, part, decisions;about.
Commission cannot licenses are pre.dictive-in_ i i ionore abdication of- '
knowledae by a license anolicant when it is called upon to decide if granted." a license for a nuclear facility should be:
i . We believe that the'above issuesfrelating toetechnical' !
~ competence and to. character permeate the-pleadings filed ly i
citizens.. They'do. deserve a full. adjudicatory. hearing, as j i and they do deserve exthey. will no doubt get in the operating license: p ! prove disqualifying." peditious treatment because they.could ! l j ~ (emphasis added). i ~ 1
Finally, Staff concludes with the following: '!

l;
! The issuance of an operating license or amendment requires 3 an affirmative-finding of compliance with the Atomic Energy Act, {
the Commission's regulations'and' reasonable assurance- i j of health and safety of the public. 10 C.F.R.c550.57. If l personnel who will be involved in the operation of .tlue ~ j i facility lack character to operate the facility,.then the !
requested operating license or amendment may not be issued. i j [ citations omitted). Here, a few individuals who are t i- currently employed by the' licensee, Georgia Power, are ! I employed by the prospective licensee,: Southern Nuclear also- The ] j character of of these the requested individuals is thus relevant to approval amendment.
~
4 i Staff Response at 6. I i i
Additionally, the Board finds that, pursuant to 10 C.F.R.
550.9,-communications'from an applicant or a licensee to-NRC'must 4 i
; 6 i ! ~
[ " !
! cannot Equally, ignore and perhaps of more concern, the Commission-f
) i false statement congress has specifically provided in documents that submitted licenses may be revoked to for it. l i i " material false statements," see section 186a of the Atomic Energy ! Act, and we have no doubt that initial license applications or i i renewal
.if applications the falsehoods weremay also be denied -intentional, FCC on this ground, certainly l t v. WOKO, 329 U.S. 223 j i the truth. Leflore Broadcastino Ccanany v. FCC, _F.2d (D.C ;
j 78-1677, 571 F. June 5,1980) ; Vircinia Electric and Power Ccmaany v. NRC 2d 1289 (4th Cir.1978) . [ Footnote from Staff's brief]. j L We include, of course, the this' category. [ Footnote from Staff's brief]. false. statements charge in ' 112 i r L l l -. . - . . -
be " complete and accurate in all material respects."2' The Commission cannot ignore false statements made by a license applicant, Houston Lichtina & Power Co. (South Texas Project, Units 1 & 2), LBP-84-13, 19 NRC 659, 673-679 (1984); even if they were made only with disregard for the truth. Leflore Broadcastina Comoany v. FCC, _F.2d_ (D.C. Cir. No. 78-1677, June 5, 1980); Viroinia Electric and Power Company v. NRC, 571 F. 2d 1289 (4th Cir. 1978). Id. at n. 23 (emphasis added). In South Texas, 19 NRC at 674, the Commission stated the 4 general standard for integrity, and in Three Mile Island, 21 NRC at 1136-37, explained that the licensee's actions: must have some reasonable relationship to licensee's character, i.e., its candor, truthfulness, willingness to abide by regulatory requirements, and acceptance of responsibility to protect public health and safety. Metronolitan Edison Comoany, et al. (Three Mile Island Nuclear Station, Unit No. 1), 21 NRC 1118, 1136-37. 2* The NRC is an agency within the scope of 18 USCS S1001 which provides for criminal penalties for the making of a knowing or wilful false statement: Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and wilfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any f alse, fictitious or fraudulent statements or representations, or makes or uses any false : writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more i than $10,000 or imprisoned not more than five years, or both. 1 113 . 1 l l l 1 i
2. Materiality Materiality of a false statement is not dependent on whether a government agency relied on the statement. The Eleventh Circuit explains the test for materiality as follows:
i materiality is satisfied even if the federal government l was not actually influenced by the false statements. l U.S. v. Herrino, 916 F.2d 1543, 1547 (lith Cir. 1990); United i Sates v. Fern, 696 F.2d 1269, 1273 (1983).25 In this respect it is the intrinsic capabilities of the false statement itself, rather than the possibility of the actual l attainment of its end as measured by collateral ! circumstances. Pereira, 463 F.Supp at 486, citing United States v. Goldfine, 538 F.2d at 820 -21.2' In sum, materiality turns on whether the false statement had the capability of misleading NRC and not whether NRC was in any ! 25 The Commission has determined that planning to make a deliberate false "on the part of applicants or licensees would be evidence of bad character that could warrant adverse licensing action even where those plans are not carried to fruition. " M. at 675, citing Consumers Power Co. (Midland Plant, Units 1 and 2), CLI-83-2, 17 NRC 69, 70(1983). 2' In Goldfine, the allegedly immaterial statement was made ! by a registered pharmacist during "the course of an inspection l conducted by the regulatory agency charged with the duty of investigating the manner in which he was complying with the ! requirements imposed upon him by law. " 538 F.2d at 821. In Pereira, the alleged statement was made by Pereira to custom agents as he was about to board a plane for Peru. 463 F.Supp at 484. In both cases the agents or investigators already knew the correct answers to the questions asked and were not misled by the false , responses. Id. at 486. However, " emphasizing the potential and l not the actual impact of the statement on agency action", the court j of Appeals for the Ninth Circuit found materiality within the scope of S1001. M. When a statement caries the "notential" of inducing i l agency reliance and of perverting a legitimate function of the ! agency it is material. M. (emphasis supplied). l 114 1 t
way actually misled. G. MATERIAL OMISSIONS AND MISREPRESENTATIONS INDEPENDENT OF A FINDING THAT CONTROL WAS IMPROPERLY TRANSFERRED , We have placed the omissions and misrepresentations alleged j
by Intervenor into two categories. The first category concerns ;
l l omissions and misrepresentation that we find to relevant to this proceeding regardless of whether a transfer of control did in
fact occur. ;

1. Omissions and Misrepresentation Concerning the Georgia Power Company Management Council (Issues 13, 14, 14A)
I
On September 11, 1990, Intervenor and Mr. Hobby filed a petition with the NRC pursuant to 10 C.F.R. 2.206 alleging, inter alia, that Georgia Power had illegally transferred control over nuclear operations to the SONOPCO project in violation of 10 C.F.R. 50.80. NRC staff thereafter asked licensee to file a ,
L response to the 2.206 petition and to submit this response under l oath. On April 1, 1991 Mr. Mcdonald, on behalf of licensee, signed the response to the petition under oath. Intervenor ; Exhibit 48. Intervenor alleges that this response is materially false with respect to the discussion concerning the Georgia Power Management Council in three respects; 1) Mr. Mcdonald's participation and attendance; 2) whether Mr. Hairston was a member; and 3) whether the Management Council was functioning as described in the petition response.
a. Mr. Mcdonald's Participation and Attendance at Georgia Power's Management Council meetings l l
In support of the claim that Georgia Power had illegally l l I transferred control, the 2.206 petition excerpted sworn 115 l _ _ .l
.. - .- ..~ - . . . - - .- - .- -
l il J i
. deposition' testimony'from GPC's Senior Executive Vice President, f 't H. Grady' Baker. The excerpt from Mr. Baker's deposition. I testimony contained in the petition reads as follows:
The appropriate oversight of-SONOPCO exists, in that l the chief operating office, Pat Mcdonald and (sic] .tje .l [ sic] CEO of -- not the'CEO because-it's not a 1 corporation - .but Farley and Mcdonald are' officers of j Georgia Power Company, reporting to the president,-Bill l Dahlberg. !
.i I
Exhibit 49 at p. 6. .} l Denying that an illegal transfer of control had occurred,- j! ! Georgia Power asserted that the'2.206 petition had "taken out'of. .j i context and contorted" the deposition testimony of Mr. Baker. j
~
i Georgia Power then set forth its version of Mr. Baker's j i . : l deposition testimony. Licensee's version included a follow-up !
~
statement of Mr. Baker. The April 1, 1991 2.206' response. sets. l l forth the following excerpt =from Mr. Baker's deposition. testimony- .f (the added portion' is underlined) :
.The appropriate oversight of SONOPCO exists, in that ;
the chief operating office, Pat Mcdonald and the CEO-of j L
-- not the.CEO because it's not a corporation - .but. !
l Farley and Mcdonald are officers of Georgia Power, !
Company, reporting to the president, Bill Dahlberg. !
Mcdonald carticularly is a member of Georcia Power's j manacement council and attends most of the meetina of ! the manacement council or many of the meetinas of the ! manaaement council. Intervenor Exhibit 48 at p. 6 (emphasis added). ; Essentially, Georgia Power sought to rely upon the assertion that Mr. Mcdonald's participation in GPC's Management. Council i demonstrated that Mr. Mcdonald was a' functioning member of GPC's 1 management structure because he was a regular participant of Georgia Power Company Management Council meetings. Thereafter, 116
.l
licensee spelled out the significance of Mr. Mcdonald's participation claiming this fact was a clear indication that Mr. Mcdonald reported to Mr. Dahlberg, who presided over Management l Council meetings. Georgia Power states: Additionally, Mr. Mcdonald is a member of the GPC ! Management Council and Mr. Farley is not. The GPC j Management Council is made up of all the Executive and Senior Vice Presidents of GPC. It functions as a coliev-settine body, makes coroorate resource allocation decisions and facilitates communications and coordination between GPC deoartments. Between April , 1988 and December 1990, Mr. Mcdonald reported neriodically to the GPC Management Council with Mr. Dahlbero presidino, on nuclear operating matters, including budget matters and organizational goals. Intervenor Exhibit 48 at p. 7 (emphasis added). A careful review of the record before us demonstrates that Georgia Power's Management Council was not operating as Georgia Power alleged in its response to the 2.206 petition. The record contains all of the Georgia Power Management Council minutes between May, 1988 and December 1990. Intervenor Exhibit 135. According to the Management Council minutes, between August, 7, 1989 and December 19, 1990 Mr. Mcdonald fai.ed to attend a single Management Council meeting. The minutes further demonstrate that, between May 1988 and December 1990 no one else belonging to Mr. Mcdonald's organization, including Mr. Hairston and Mr. McCoy, participated at any Management Council meetings. Moreover, the record supports the finding that, as of August 7, 1989 Mr. Mcdonald stopped functioning as member of GPC's 117
t l Management Council;" and other than participating in a 10 minute telephone discussion to write off plant Vogtle's rad-waste facility form the company books held on December 28, 1990, Mr. Mcdonald attended no more Management Council meetings." ; i Georgia Power had every opportunity to present testimony.and 'i evidence to dispel the inference that Mr. Mcdonald stopped : l i l-l attending management 866Xcounm&& tings in August of 1989, yet i failed to present any evidence to the contrary." Accordingly, this Board must' conclude that as of August 7, 1989 and until his retirement from GPC'on June 1, 1993, Mr. Mcdonald stopped functioning as'a member of GPC's Management Council. l I Believing the statement to be false and misleading, we must examine its context and consider the motivation of for its making. We are persuaded that the error was neither careless or unintentional based on the following considerations: First, the statement was made under oath by Mr. Mcdonald. Submitting the response under oath required licensee to scrutinize the response carefully. Failing to detect such an obvious misstatement leaves
" In a sworn interrogatory response GPC listed the members of its Management Council as of December 1989. This list excluded Mr. Mcdonald. Intervenor Exhibit 144, at p. 2. It would seem that, either Mr. Mcdonald ceased functioning as a member of GPC's management council or Georgia Power submitted a false response to a sworn interrogatory question. " Mr. Dahlberg testified that he had no reason to believe that Mr. Mcdonald's attendance at Management Council meetings after 1990 was any different. Tr. 1096 (Dahlberg). " Georgia Power bares the ultimate burden in this case and it failed to present evidence to refute a reasonable factual inference concerning Mr. Mcdonald's non-participation at Georgia Power Management Council meetings.
118
1 1 little doubt that the error did not result from carelessness. Second, Mr. Mcdonald, who signed the response under oath, had I first-hand knowledge of his participation. Third, the importance of the statement in relationship to the issue being addressed suggests motive. Fourth, GPC kept minutes of its Management Council meetings are could and should have considered these-minutes.'" Fifth, a copy of Georgia Power's response was given to Mr. Dahlberg who, like Mr. Mcdonald, had first-hand knowledge of Mr. Mcdonald's non-participation.21 And, sixth, licensee's focus on the issue of illegal transfer has continued since the 2.206 petition response was filed and it is reasonable to believe that persons knowledgeable about Mr. Mcdonald's attendance would have corrected the error at some point during the last few years. Based on the totality of the record we find that there was no factual basis for the statement and no credible explanation to reasonably believe the error was inadvertent. The Board must therefore conclude that licensee intended to and did provide 2a In addition to the Management Council, GPC relied upon Mr. Mcdonald's participation in NOCA meetings and Georgia Power Board meetings. With respect to these meetings GPC apparently did rely on the minutes. Sge Intervenor Exhibit 48 at p. 7. 22 The Board is particularly troubled by Mr. Dahlberg's assertion at the hearing that the description of Mr. Mcdonald's participation on the Management Council was a "true" statement. Tr. 1088 (Dahlberg). Mr. Dahlberg testified that Mr. Mcdonald may not have attend a Management Council meeting for over a year, Tr. 1091 (Dahlberg); and that Mr. Mcdonald was the only member of the Management Council representing GPC's entire nuclear organization. Tr. 1079-80 (Dahlberg). It is inconsistent for Mr. Dahlberg to profess a hands-on manager style over GPC's nuclear operations and not know the extent of Mr. Mcdonald's participation on the Management Council or to have otherwise required Mr. Mcdonald to send a representative to Management Council meetings. 119
i 4 s false and misleading information to the NRC.
b. False and misleading statements concerning the composition of the Management Council' ;
Georgia. Power asserted in its's. response to the 2.206 , l petition that "GPC Management Council is made up of all the Executive and Senior Vice Presidents of GPC." Intervenor Exhibit ! 48 at p. 7 (emphasis added). GPC admits that this is a false ,. statement because Mr. Hairston was not a member of GPC's i Management Council.22 Based on Georgia Power's admission, we i need only examine materiality and. intent. , d' The wording of this statement leads to the conclusion that 4 1 i Mr. Hairston was a member of GPC's management Council and presumably participated therewith.22 Additionally, the. f. statement was part of a general attempt by Georgia Power to exaggerate the scope and influence of the Management Council over ; . i nuclear operations. ! 4 The statement is admittedly false. We therefore examine the d 22 } While admitting that Mr. Hairston was a Senior Vice
President but not a member of the Management Council, licensee did >
not disclose the fact that he was the only senior vice president at , i GPC who wasi not a member of the Management Council was Mr. I Hairston. Mcdonald at 13-14. Moreover, Intervenor had difficulty j obtaining this admission from GPC's witness, Mr. Dahlberg, with respect to this matter. Egg Tr. 1077-1082 (Dahlberg). 1 22 NRC would have to interpret this to mean that Mr. Hairston was a member of the Management Council. At the time the i statement was made NRC staff was aware that Mr. Hairston was a GPC 4 senior vice president. The Plant Vogtle FSAR (JE 12) and NRC's understanding of the reporting relationship after Mr. Hairston issued his May 1, 1989 letter (Intervenor Exhibit 120) clarifying his position as a GPC Senior Vice President leave no doubt that NRC would reasonably interpret this to mean'that Mr. Hairston was a member of GPC's Management Council. 4 120 i l l l l
. . _ - - , . . . . _ . . . . ~ _ . _ . _ _ . . -_.7_m_
i i context of the. statement and consider the motivation for its making. We examined Mr. Mcdonald's testimony at the hearing.and. j conclude that he intentionally included.this language.in the'
.l . response knowing it to be misleading and false. .During the course of Mr. Mcdonald's testimony he. revealed the actual-thought process he employed when the language.was developed. -Mr. ;
Mcdonald testified that when the statement was drafted.he had a.
~
l
" vision of Executive Vice President and the Senior Vice 3 i
Presidents that reported to Mr. Dahlberg being on that management ! council," Tr. 1443 (Mcdonald), and " f al t that time," when the j l . . o error was made, Mr. Mcdonald.was of the." opinion that.the members of that council were the Executive Vice Presidents, of course ! reporting directly to Mr. Dahlberg, and there were some Senior- !
\
Vice Presidents who also reported directly to him, whereas George ! Hairston reported to me and not directly to Mr. Dahlberg." Tr. ! 1444-45 ' (Mcdonald) . Mr. Mcdonald's testimony demonstrates'that . he was aware at the time the language was approved that Mr.
=i Hairston was not a member of the Management Council ~.
In addition to Mr. Mcdonald's testimony the record also ! establishes that GPC's top three nuclear executives, Mr. Hairston, Mr. Mcdonald and Mr. Dahlberg, had responsibility to review the petition response.24 LMr. Mcdonald signed it and both Mr. Hairston and Mr. Dahlberg were on distribution. Intervenor i Exhibit 48'at pp la-b. Given the number of persons with first-
Mr. Mcdonald testified that Mr. Hairston did, in' fact, partake in the review process. Tr. 1446 : (Mcdonald) .
l' 121
I i hand knowledge as to the make-up and membership of GPC's , Management Council, the length of time and the amount of scrutiny devoted to the issue of illegal license transfer gives rise to the inference that GPC would have detected this error years , earlier. l We are therefore persuaded that the error was neither careless or unintentional.
c. Misleading statements concerning Georgia Power Management Council's involvement with nuclear operations.
Licensee's April 1, 1991 response to the 2.206 petition asserts that, with respect to nuclear operations, the Management Council " functions as a coliev-settina body, makes corporate resource allocation decisions and facilitates communications and ; l coordination between GPC departments" and that "Mr. Mcdonald reported periodically to the GPC Management Council "on nuclear operatina matters, including budaet matters and orcanizational-coals." Intervenor Exhibit 48 at p. 7 (emphasis added). In j order to have accomplished these functions the Management Council would need input from GPC's nuclear operations management. It is difficult to believe that the Management Council facilitated
" communications and coordination" between GPC's nuclear l
l operations department and the other departments of the company l 1 l because no one representing GPC's nuclear operations would attend l 1 Management Council meetings. There appears to be a total lack of meaningful communication from GPC management within the SONOPCO l project to the Management Council. L l 122 i
With respect to organizational goals, the record establishes that the Management Council was not involved with nuclear organizational goals. Specific examples of this are as follows: i First, it appears that on September 5, 1989 the Management Council determined that all " organizational heads should present their goals to the' full Management Council for review and approval." Exhibit 135 at p. 81. Mr. Mcdonald never made such a presentation to the Management Council. Id. Additionally, at the end of 1989 Mr. Dahlberg reviewed with his Management Council the entire management structure at which time he excluded Mr. Mcdonald's nuclear organization. Even if Mr. Dahlberg had a rational reason for excluding nuclear operations from a company-wide review, if Mr. Mcdonald was involved with GPC's organizational goals, he should still have attempted to participate in the discussions of other managers, such as Mr. Hobby, with whom his organization did interact. Moreover, the record establishes that the explanation provided by Mr. Dahlberg as to why he was excluding the nuclear organization from review did not provide a basis as to why Mr. McCoy's performance should 1 not have been reviewed with the Management Council or why managers stationed at the plant sites also were not evaluated at that time . as as Mr. Dahlberg explained that the exclusion of GPC's nuclear operations from the organization occurred because GPC's nuclear of ficers had been reviewed in 1988 when the SONOPCO project was formed. Tr. 1185-88 (Dahlberg). Mr. Dahlberg nonetheless conceded that the Vogtle Project Vice President, Mr. McCoy, may not have been reviewed in 1988. Mr. McCoy was not a GPC employee prior to 1988 and there is no logical reason why he would have been 123
. j i
This Board is also troubled with the assertion in the April l, , 1, 1991 2.206 petition response that Mr. Mcdonald periodically l
. reported to the Management Council with respect to GPC's nuclear !
budget. It is important to place this comment in proper context. ; This statement was made as part.of a discussion which, in its l l totality, portrays Mr. Mcdonald as an active and regular 1 , participant ~of the Management Council. The record establishes d that he was in no way an active participant. Mr. Mcdonald . appears to have never participated in any Management Council } review of a proposed nuclear budget in 1989 (the 1990 budget) and thereafter. Mr. Mcdonald no longer had anything to do with the i 4 GPC's Management Council that he had no idea whether the ; l Management Council had reviewed his nuclear operating budget ) before Mr. Mcdonald presented it to Mr. Addison. Tr. 1406 j J (Mcdonald).27 l The record also casts serious doubt as to whether the 2 i Management Council ever approved the 1990 nuclear operations and : l i maintenance (O & M) budget. First, the 1990 SONOPCO budget 1 review represented a departure from past practice. GPC's nuclear j . budgets were previously reviewed by Mr. Addison in Atlanta as excluded from a company-wide review occurring a year and a half ' after he was hired. l' 25 Mr. Mcdonald's prefiled testimony attempts to clarify this by claiming that the term " reported" was only meant to mean that he "provided" budgets to the Management Council for their review. Mcdonald at p. 14. 2' On the other hand, Mr. Mcdonald did review his nuclear ; budget with Mr. Farley prior to its presentation to Mr. Addison and ! 4 Mr. Mcdonald knew that Mr. Farley had " blessed" his budget. 124 l
part of an overall GPC budget presentation. Thus, while Mr. Addison attended a budget review for GPC in Atlanta on December 12, 1984,2s he had already attended a meeting on December 4, 1989 where the SONOPCO project nuclear budget was presented by Mr. Mcdonald.2' Indeed, the record supports that the budget process employed was such that The Southern Company treated SONOPCO project as if it was a fully functional entity
responsible for developing and approving its own budget. Egg Intervenor Exhibit 90 at p. 1 (December 11, 1989 Synoosis publication interview of Mr. Farley who states therein that there had been "a recent decision to prepare the budget for 1990 as if the project were a company"). In this respect, Mr. Farley testified that "the President of the holding company [ Addison) must look to the head of his service company (SONOPCO project)"
and, in so doing, Mr. Addison looked to Mr. Farley to serve this function for the SONOPCO project commencing with the preparation of the 1990 nuclear budget. Tr. 1786 (Farley). Mr. Addison's visit to the SONOPCO project on December 4, 1989 was to approve the SONOPCO project budget and this approval came l 2e Egg December 4, 1989 Management Council minutes at p.100 l (" presentation to Mr. Addison scheduled for December 12, 1989"). 2' GPC explained the purpose of the December 4,1989 meeting in its post-hearing brief as a meeting where the SONOPCO group would make a presentation on the 1990 nuclear budget to Mr. Addison. Sag GPC Post-hearing Brief at i 88. Any review by GPC's Management Council after the budget was approved by Mr. Addison would be redundant and meaningless. More to the point, GPC's Management Council met before the presentation to Mr. Addison and any objection Mr. Dahlberg was ever going to raise, would occur during the Addison presentation. l 125
i l l r before Mr. Addison visited GPC and approved its budget on December 12, 1989. J In fact, the nuclear budget was presented to Mr. Addison on i December 4, 1989. In addition to Mr. Addison, the presentation { was made before all of the persons identified as comprising a SONOPCO project " Board of' Directors."20~ Mr. Mcdonald testified j that when he made the budget presentation to Mr. Addison on December 4, 1989, he'had no idea wh' ether GPCs Management Council had reviewed this nuclear budget. Tr. 1406 (Mcdonald). The 1 Management Council functioned as an advisory. board to Mr. l Dahlberg. Once the nuclear budget was presented by Mr. Mcdonald ; to Mr. Addison in the presence of Mr. Dahlberg, there is no l logical reason why Mr. Dahlberg would reconsider the budget or [ seek GPC Management Council approval. In this respect, the { i l Management Council minutes indicate that_the SONOPCO project ! final proposed nuclear budget was reviewed on'the. morning of I i December 4, 1989, and it was $18 million over the budget projc ts i previously established by the Management Council. Intervenor i Exhibit 135 p. 105. (Management Council Minutes)." Neither j 3" This group consisted of Mr. Addison (Southern Company i President); Mr. Farley (Southern Company Executive Vice President l Nuclear) ; Mr. Franklin (Southern Company Services President) ; Mr. I Harris (APC President) ; and Mr. Mcdonald (Executive Vice President GPC and APC).
" On October 14, 1988 Mr. Dahlberg told the Management Council that, commencing with the 1990 budget, GPC's Management Council would " serve as the sole review board for the budgets."
Intervenor Exhibit 135 at p. 31. During the July 25, 1989 l Management Council meeting, the Council set November 14, 1989 as I the date " Budgets [were to be] completed and reviewed by Management Council." Intervenor Exhibit 135 at p. 72. 126 j i i l
Mr. Mcdonald nor anyone from his nuclear organization attend the Management Council meeting to explain or otherwise justify the inability to meet the budget target 22 Mr. Adams did attended the December 4, 1989 Management Council meeting. Sag Exhibit 135 ;
p. 98. Mr. Adams testified thd he recalled raising a concern to Mr Dahlberg about the proposed 1990 SONOPCO budget being $15-20 -i million over budget, and he recalled Mr. Dahlberg stat.7y t he too " thought it was high." Adams Dep. p. 21-22.22 Mr. Adams further testified that he was unaware of how the discrepancy was
! resolved. Id. Indeed, Mr. Warren Jobe, GPC's chief financial 1 l officer Management Council member, Tr. 1235 (Dahlberg), testified that it is possible that GPC's nuclear budget _was not approved by GPC's Management Council. Jobe Dep. at p. 42-44.24 Moreover, two members of GPC's Nuclear Operations Contract Administration l . group, Mr. Hobby and Mr. Johnson, were told that the Management 32 l It is difficult to see how the Management Council.could : l approve an $18 million discrepancy without the participation of Mr. ; ! Mcdonald. 22 ~I Also see Intervenor Exhibit 51 (internal GPC memo stating that SONOPCO plants could be operating 5-30% above comparable industry averages. 2' In December of 1988, Mr. Dahlberg established the Nuclear Operations Contract Administration group. One of the stated purposes of this group was to review and analyze SONOPCO project , budgets and advise GPC's executive management accordingly. Hobby I at p. 20. Mr. Mcdonald and Mr. Farley objected to NOCA and would not provide NOCA with any budget information. By not attending Management Council meetings and by prohibiting the SONOPCO project from providing NOCA with budget information, the Management Council was not in a position to adequately assess the appropriateness of GPC's nuclear budget. i j 127 1 ! I
l 1 l Council did not approve the nuclear budget.25 Finally, the 1990 Management Council minutes demonstrates that at no time during 1990 did Mr. Mcdonald meet with the Management Council to discuss the SONOPCO project nuclear budget. The Management Council minutes totally exclude mention of such fundamental issues 2 ' and events occurring at plant Vogtle that it cannot be said that the Management Council was the forum relied upon by Mr. Mcdonald or Mr. Dahlberg to discuss matters related to GPC's nuclear operations. The record rather indicates that, after the formation of the SONOPCO project, a management group referred to as the SONOPCO project Board began to function as the Management Council did before nuclear operations were transferred into the SONOPCO project. For example, the SONOPCO 25 Mr. Hobby states in his pre-filed testimony: (I] n early December, 1989, I called Mr. Jeff Wallace in Resource Management and asked him the status -- he was basically head of the budgeting process. He told me the budget had been approved by the Southern Company management group and that Mr. Dahlberg had not been pleased with it and brought the matter up to Mr. Addison. But, Mr. Addison said, "That's it . " I asked where he got that information and he said, "From the man himself, " referring to Mr. Dahlberg. When I finished the phone call, Gerald Johnson approached me and asked the status of the nuclear budget. I asked him to call the extension I had just dialed. He did and told me that he got the same answer as I had just : I received. Hobby 47-48. Also see Johnson Dep. at 40-42 (only GPC's nuclear budget was not approved by the GPC Management Council). ; 1 Issues such as the following are never mentioned in the minutes: 1) the fact that the 2.206 petition was filed; 2) that OI investigations were occurring at plant Vogtle; 3) that Mr. Mosbaugh had made tape recordings; and 4) the termination of Mr. Mosbaugh. 128
p 11 l J project Board, discussed the outage. schedules, costs of replacing i l condenser tubes and the nuclear budget. Egg Tr.'1176-1177 l (Dahlberg). None of these matters were discussed at'a GPC Management Council meeting. { In conclusion we find that the 2.206 petition response , I l discussion about the function of the Management Council with : respect to nuclear operations budget after,the SONOPCO project ~
l was misleading;and false. At-the. time the 2.206 Petition !
Response wa filed, Mr. Mcdonald and GPC's' entire nuclear j operations department essentially stopped interacting with GPC's j l Management Council. Moreover, we believe that the 2.206 petition' ; i ! l response-is incomplete because it failed to explain the role.and existence of a SONOPCO project. board or the other management ; structures that were: established to replace the function i performed by the Management Council. y '.'- ! c l ! 2. Omissions and Misrepresentations Related to Statements , Concerning Georgia' Power's-Emergency Plan Intervenor asserted in an amendment to the 2.206 petition j 1 filed on October 1, 1990 that remarks made by~Mr. McCoy-at a 'l I Vogtle plant site meeting and follow-up conversations' occurring at the plant site indicated that Mr. Farley was contacted as part of the duty reporting chain. Intervenor Exhibit 49 at pp. 4-5. 1 GPC responded to this assertion on April 1,-1991." 1R) defeat the assertion and to explain why Mr. Farley's name may have come j 1 up as someone contacted as part of the plan, the 2.206 response l l
" At the time GPU responded to the petition, it was unknown.
whether McCoy's remarks were recorded and in the possession of NRC. 129 i L H ' ^ N~ 1
-, - . . . ,i
i states: Mr. McCoy does not believe his statements addressing ' tiie reporting structure for plant duty, managers . suggested that Mr. Farley was notified in lieu of Mr. l Dahlberg. Vogtle project emergency planning; procedures,
require the duty manager to notify- senior corp: rate' management, including both Mr. Dahlberg<and Mr' Farley, 3
in the event of a significant event at Vogtle.. , Intervenor Exhibit 48 at p. 12. , GPC goes on to state that The. fact that Mr. Farley will be l
. - l notified along with the GPC officers in the-event of a nuclear-related emergency is not surprising." Id. , j " In fact, the GPC emergency planning procedures in place at o .
that time did require Mr. Farley to be contacted. The applicable ,
, a Plant Vogtle Emergency planning procedures is VNS-EP-04 (Exhibit' !
125). Pursuant to Section 4.1.1.of this procedure, the On-Call , j , Project Manager must refer to the " Corporate Emergency Telephone o Directory" and must notify four identified groups of personnel: (1) Director of Corporate Response; (2) Senior Corporate l Management; (3) Public Information Manager;; and (4) Joint Owners. 1 Interveaor Exhibit 125 at p. 9. The procedure further requires j the On-Call Project Duty Manager to use the Attachment 2 "checklista to log by initial, date and time the accomplishment of the section 4.1.1 required actions concerning the notification i of these four groups of personnel. (Exhibit 125 at page 13) ; l A complete Corporate Emergency Telephone Directory" can be found in between pages 78 and 108 of Intervenor's Exhibit 126. Within this telephone directory, at page ii, is a table of contents of " Call Out Lists," which specifically identifies the 130 gr g y
l I call-out list of the "On-Call Project Manager." Intervenor" Exhibit 126 at p. 79. The telephone directory.specifically sets forth instruction as to who within a given list is to be notified. Page 80 of Intervenor Exhibit 126 translates-
" Indicated Notes" found within the Corporate Telephone Directory ;
and provides the necessary instruction as how to use the Call-out i Lists. These notes provide-that in cases where an asterisk is :, affixed to a group of personnel, the On' Call Project Manager is. l t to start at the top of the list and initiate phone calls until i t contact with one of the identified individuals is accomplished. l This instruction therefore would require the on Call Project- .; Manager to attempt to contact all persons. identified in a group where an asterisk is not affixed. :i The Call-Out List for the On Call Project Manager is found l at pages 81-83 of Intervenor Exhibit 126. The same 4. categories l t of personnel listed in the same order'are in the Call-Out List l for the On-call Project Manager as was in section 4.1.1~of VNS- j} I EP-04 ie. (1) Director of Corporate Response, (2) Georgia Power j l Company Corporate Management," (3) Public Information Manager, j
.(4) Joint Owners. Listed'in' descending order under the heading i " Georgia Power Corporate Management" are 1) Joseph M. Farley; 2)
R.P. Mcdonald; 3) W.G. Hairston; 4) A.W.~Dahlberg; 5) J.T. ; l l Beckham; and 6) C.K. McCoy. There is no asterisk affixed to this ! 3' l There is a minor difference between this callout category terminology " senior corporate management"'used here and that in ; Exhibit 126 "GPC corporate management" . Revisions of j exhibit after 8-10-90 used the term " corporate management" but l l all three of these terms identify the executives of GPC. ] l i 131 l l l i
4 1 category. There is every indication that licensee correctly I I states in the 2.206 petition response that the "Vogtle project' ! l emergency planning procedures require the duty manager to notify l senior corporate' management,' including both Mr. Dahlberg and.Mr. l Farley." j l GPC's purported senior executive over nuclear during.the ; < i relevant time, Mr. Mcdonald, testified that this statement was t rue . j i
.In 1992 the'ASLR initiated this proceeding, which in part l l considered Mr. Farley's role in. licensed activity. The original 1
2.206 response concerning the functioning:of formal plant j procedures would become a significant factual issue'and in April 1994, Mr. McCoy was questioned during his deposition about the } Vogtle Emergency procedures. At this point in time, licensee f I I i ! i 2' ' ! Mr. Mcdonald testified as follows: l ? Q: Mr. Mcdonald, I would like you to look at Exhibit 48, -! ! page - 12. . . And there's a sentence that says, "Vogtle j l Project Emergency Planning Procedures require the Duty j
Manager to notify senior corporate management including

l both Mr. Dahlberg and Mr. Farley. in the event of a i j , significant event at-Vogtle." Do you see that? l A: I do. ! Q: That is in fact a true statement, isn't it? i
.i.
That is just what we've been talking about. A: I Q: I'm asking -- l A: That's true. Q: That is a true statement. Okay. l
?
Tr. 1427-1428. 132 , l
l l l l l l altered its prior factual assertions, claiming that the l procedures did not require that Mr. Farley be notified. Egg ASLB Memorandum and Order (Motion to Reopen Discovery), dated November , l 9, 1994. I Following Mr. McCoy's deposition, on August 30, 1994 George Hairston submitted a letter to the director of NRC's Office of Nuclear Reactor Regulation. Mr. McCoy had also worked on the ; August 30th letter. Tr. 1706(Hairston). Therein, licensee asserted that an error had been made in the 2.206 petition ! because plant procedure did H21 require that Mr. Farley be [ contacted in the event of a crisis situation. Testimony concerr.ing the functioning and implementation of t plant Vogtle emergency plan procedures presented by licensee ! witnesses is so divergent that it can never be reconciled. On one side of the spectrum Mr. Mcdonald stated that the April 1, 1991 2.206 petition response accurately states that plant l l procedure require Mr. Farley to be contacted.** On the opposite l < l l l '" Licensee specifically addressed the following sentence in its April 1, 1991 2.206 Response: "Vogtle Project emergency i planning procedures reouire the duty manager to notify senior corporate management including both Mr. Dahlberg and Mr. Farley in the event of a significant event at Vogtle" (emphasis added) , by asserting that "the procedures did G2h specifically require notification of both Mr. Dahlberg and Mr. Farley". Intervenor Exhibit 129 at p. 1.
** Mr. Mcdonald testified that Intervenor's Exhibit 68 was the Emergency Plan Procedures referenced in the 2.206 Response and specifically testified that section 4.1.1 of this procedure required the On Call Project Duty Manager to use of the Corporate Emergency Telephone Directory. Tr. 1414-16 (Mcdonald). Mr.
Mcdonald testified that the "On Call Project Manager Telephone list" was a " formal document referred to in the Emergency Plan Procedure," and "was part of a formal plant procedure." Tr. 1424-133 l l
)
t
side of the spectrum, Mr. McCoy testified that this was~not true; that plant procedure did not require Mr. Farley to be contacted. There is no middle ground; either the 2.206 petition contained a' material false statement or the August 30, 1994 correction contains a materially false statement. What's more, since both j Mr. Mcdonald and Mr. McCoy have first hand knowledge of the procedures and how they were implemented, one or the other must l r have provided false testimony to this Board. 1 To determine which is true we rely on the totality of the record. As discussed below, the record as a whole supports a finding that the April 11, 1991 2.206 Response accurately stated l the procedure and-accurately states that the procedure required Mr. Farley to be contacted. ; We first consider the plain meaning of the written i procedure. On its face, the procedure unambiguously sets forth ! the methodology that must be followed. Pursuant'to the wording . i 26 (Mcdonald). Mr. Mcdonald then conceded that if the On Call l Project Manager failed to contact Mr. Farley it-would have been a l mistake: CHAIRMAN BLOCH: So the On Call Project Manger by procedure at the time was required to call Mr. Farley, wasn't he? THE WITNESS: By these procedures, that is correct. CHAIRMAN BLOCH: And they are the procedures of the plant. he would have been making'a mistake if he did anything else, wouldn't he have. , I THE WITNESS: That is correct. l Tr. 1418-1419 (Mcdonald). I 134 l 1 I
-_-________l i l i
of the procedure, Mr. Farley would necessarily have to be contacted. Second, Mr. McCoy testified that there was position-specific training of corporate personnel with respect to l l l emergency procedures, Tr. 1571 (McCoy) ; and that these training records are required to be retained by the licensee, Tr. 1565-66 l (McCoy) ; and that Mr. McCoy had "not been ask to produce those documents." Tr. 1566 (McCoy).'8 On November 9, 1994, this Board issued an order requiring Georgia Power to serve copies of "all relevant procedures used at Vogtle from 1988 to present i l [and) all trainina materials that Georoia Power used for the ouroose of assurina the crocer execution of the relevant orocedures." order at 5 (emphasis added) (footnote omitted) . In response to this order GPC's counsel states that " Georgia Power has identified no training materials for the procedures described
above, other than the procedures themselves which are exercised during emergency drills." See Letter of John Lamberski to ASLB, dated November 16, 1994.
McCoy is the Vice President over both the corporate and site organizations of plant Vogtle and is has responsibility over
. corporate emergency planning, training, and records maintenance.
It is impossible for this Board to understand how GPC could assert prior to the hearing that no training materials' exist I
*2 Mr. Mcdonald also testified to the existence of training materials; that corporate personnel were specifically trained on the VNS-EP-04 procedure; that he had seen the training materials, including the " checklists" found in Attachment 2 of Intervenor Exhibit 125 at p. 13; and that the training materials were " maintained and routinely inspected by the NRC. " Tr. 1419-1421 (Mcdonald).
135
1 apparently without ever confirming this with the responsible ! corporate officer. The failure to produce the very records Mr. f McCoy testified to be in existence leaves the Board little i alternative but to conclude that the training were not produced l because they demonstrate that the August 30, 1994 letter to the ! NRC incorrectly states that Mr. Farley was not required to be l notified. .4 Third, Mr. McCoy's testimony is simply incredible. - He l .i asserts'that the Corporate Emergency Telephone Directory was "not l a part of a procedure" but merely a handy " reference to find phone numbers;" and that it was "not a required document.by any , i NRC regulations, and it's not even a procedure. It is simply an t aid to find phone numbers." Tr. 1575-76; 1592 (McCoy). To i demonstrate this point, Mr. McCoy asserted that the duty manager i ! could implement Emergency Procedure VNS-EP-04 without the Corporate Emergency Phone Directory. According to Mr. McCoy, the i duty manager need only refer to "the phone directory if [he]
wanted to. It's just simply an aid to duty managers". Tr. 1592
]
(McCoy). But Mr. McCoy's testimony rings hollow because he was i ultimately forced to concede that an ordinary phone directory did not provide the " mobile phone numbers, home phone numbers, beeper f numbers" needed to respond to the emergency. Tr. 1592 (McCoy). Mr. McCoy's testimony also rings hollow because the Corporate Emergency telephone directory required signature approval by Mr. McCoy. Egg Intervenor Exhibit 126 at pp. 1, 6, 11, 16, 21, 26, etc. l 136 i l
Finally, Mr. McCoy testified that the addition of Mr. Farley's name to the list was a secretarial error. Tr. 1611 (McCoy). This assertion is also incredible. Intervenor's Demonstrative aid B demonstrates a pattern concerning Mr. Farley's addition to the list. Prior to Farley becoming Executive Vice President, Nuclear for the Southern Company and Southern company Services, he was excluded from the list. When the list was issued thereafter Mr. Farley was placed at the top of the list and Mr. Dahlberg was moved from the third position to the fourth. For the next 6 revisions, from June 1989 to August 1990, there are no changes in the top 4 positions. But following the filing of the 2.206 petition in September, 1990, the list was altered such that Mr. Dahlberg was placed into the 2nd position. Finally, upon Mr. Farley's retirement on May 26, 1992, Mr. Dahlberg was placed at the top of the list until he was promoted to President of The Southern Company and was dropped from the list. The addition and deletion of names follows a pattern and cannot be said to be linked to a secretarial error. In conclusion, training records could have been produced by licensee which should have resolved whether Mr. Mcdonald or Mr. McCoy's version of the procedure was truthful. The failure to produce these records and the fact that the only reasonable interpretation of the procedures demonstrates that Mr. Farley was to be contacted, leads this Board to conclude that the licensee misrepresented the emergency plan procedure in the August 30, 1994 letter to the NRC. 137
f
'I 4
3. Misrepresentations Pertaining to the' Selection of
!- SONOPCO project Vice Presidents (McCrary and Long) _ Georgia Power states /in its October 3, 1991 Response to the ! t
_ 2.206-petition that there is no inconsistency in the testimony Mr.-Mcdonald gave during the Enshko and Yunker and'Hobbv cases concerning'the selection of Messrs. Long and McCrary. (Exhibit 1
] 79,-p. 4). This is repeated in Mr. Mcdonald's prefiled { l testimony, where he. states that'his 5/7/90'Hobbv deposition ; d ? j testimony did not contradict his testimony in the Fuchko'and j j Yunker DOL proceeding. McDonaldLp. 11-12. But the record before' ! } us demonstrates that Mr. Mcdonald did provide inconsistent j . testimony. ! j Mr. Mcdonald first testified about his involvement in the selection of Messrs. McCrary and Long'in December, 1988 when he
was deposed during the Fuchko and Yunker DOL proceeding. At that
' i time Mr. Mcdonald testified as follows: -j ~
L

Who selected the administrative and technical services

Vice Presidents...What person selected thase people, the people in those positions?
A: I don't know. 4-Q: So you did not select them, j A: M. < 1 1 Q: Who are the Vice-President for those services? A: Charles McCrary and Lewis Long.
) Q: And Charles McCrary is Vice-president for what? !
1 A: McCrary? Administrative Services. [ Q: Okay. How about Lewis Long, is technical services? l A: Yea. Now let me cualify mv statement, in 138 j-A l
- . . - . . . = - . . .. . . ..- -. . .- , . - - . ]
l l e savina that'I don't know. The selection of those oecole is under the authority and- ; resoonsibility of'the Southern comoany j Services. I imacine in the' normal course of ; events that selection is officially made by the President of Southern Comoany Services. There may have been another arranaement that :l I am not aware of. but I think that that was true. ) i Mcdonald 12/23/88 DOL Dep. at pp.-12-13 (emphasis,added). The next time he testified'about the selection process was i when he was deposed during the Hobbv' DOL proceeding in May,p1990. '! This testimony was' inconsistent with that presented during the j! i Fuchko and Yunker-proceeding. Where before he' asserted that he l
. I had no knowledge,of the selection process and " imagined" thatlthe :
l~ " responsibility" and " authority" rested'elsewhere, Mr. Mcdonald ! 1 now testified that he alone selected.both Mr. Long'and Mr'. ! McCrary for their positions and personally requested the Southern Company Services Board of Directors to elect them to these positions: j Q: Were you involved in the selection of Mr. Long as Vice j President of Technical Services? ; 1 A: For that position, ygg. l Q: Were you involved in the selection of Mr. McCrary for Administrative Services? A: Xga. Q: Other than the Board of Directors who else are vpu aware of who had a role in the selection of Mr. Lona?- l A: -No one that I know of. Q: Just you? , j . . l A: Well, I might have discussed it other people l but I was the one who reauested the he be l l 139 i L l
l 1 l considered for that position by the Board of l Directors. Q: And as to Mr. McCrary-- A: Same.
Mcdonald Hobby DOL Dep. at pp. 12-13 (May 7, 1990).
Before this Board Mr. Mcdonald was questioned about the l l selection of Messrs. McCrary and Long. This time his explanation l I was inconsistent with both the Hobby and Yunker and Fuchko deposition testimony. At the hearing he explained that there was a selection board established to review candidates for the position of Vice President of Administrative Services. Tr. 1276 I (Mcdonald); that this Board consisted of Mr. Mcdonald, Mr. Farley, Mr. Tom Nunnely and Mr. Jack Causy, Tr. 1276 (Mcdonald); that the board determined that Mr. McCrary would be the best candidate to fill the position; and that a representative of the section board advised Mr. Franklin (SCS's CEO) of the selection. Tr. 1276 (Mcdonald).*3 Georgia Power and Mr. Mcdonald had the opportunity, in the October 3, 1991 Response to the 2.206 petition to admit the inconsistency and explain how the inconsistency came about. Instead there was an attempt to justify the inconsistencies and l .this attempted justification continued up until the hearing. After the hearing Georgia Power admitted in its post hearing brief that "Mr. Mcdonald was not able to adequately explain why, during his i December 1988 deposition in Yunker and Fuchko, he wasn't sure who j l had recommended Messrs. Long and McCrary to the SCS Board of l Directors. Tr. 127-90 (Mcdonald) . " Egg Georgia Power's Post l Findings of f act and Conclusions of Law, dated February 13, 1995 at j i p. 169 fn. 55. Georgia Power then states that this is besides the l l point because the " April 1, 1991 response focused on whether Mr. l Mcdonald's statements were inconsistent with respect to his , involvement in the selection process, and not with respect to I anyone else's involvement in that process. " 14 Georgia Power now chooses to ignore the fact that on October 1, 1991 it asserted that l "Mr. Mcdonald Sucolied Truthful Testimony Recardina His Knowledce l 140 l I 1
b i I Eventually, Mr. Mcdonald testified that at the time he gave i the testimony in the Fuchko proceeding that he had'probably [ $ forgotten tne selection committee process. Tr. 1285-1286 (Mcdonald). He even stated that he could imagine having forgotten about it in 1988, but being able to remember it~ crystal i clear in 1995. Tr. 1286 (Mcdonald), Mr. Mcdonald made.several ; attempts to explain this by referring to the definition of the ! { word " select" and in so doing only managed to confuse himself. ; 5 Tr. 1287-1289'(Mcdonald). l In sum, the record establishes the following: 1) Mr. Mcdonald testified on December 23, 1988 the he did not select Messrs. Long and McCrary and he could only " imagine" that the
" selection is officially made by the President of Southern !
Company Services" but "[t]here may have been another arrangement ; that I am not aware of;" 2) On May 7, 1990 Mr. Mcdonald significantly altered this testimony by asserting that he may , have discussed the selection of Mr. Long and Mr. McCrary with l
; others, but he was the person who selected them for.their i i ; positions and that he personally made the " request" to the SCS ,
Board that McCrary and Long be elected as Vice Presidents; and 3) ! at the hearing Mr. Mcdonald was able to provide detailed - I testimony about the establishment of a " review board" and that this review board recommended to the SCS Board that McCrary and Long be elected. of the Method Used To Select Certain SONOPCO Proiect Vice Presidents." Intervenor Exhibit 79 at p. 3 (capitalization and 4 emphasis in original). 141 i 4
~r e,--
I i We find that Mr. Mcdonald was well aware of the selection ! 4 process when he testified in the F_uchko and Yunker proceeding but ; chose to present an incomplete .t misleading description;** we The record establishes elsewhere that Mr. Mcdonald j
, exhibited a propensity for providing. inaccurate and. incomplete . i
} responses to deposition questions. For example Mr. Mcdonald l . testified that he was unable to explain what the on Call Project ! Manager telephone List was in relationship to the on call Project Managers: ; l A: But to answer your question. . Your line of questioning f here is about the duty corporate manager, and that sheet i (the Telephone list - On' call Project Manager) does not - ,
- that is not what that sheet is. If you would like to ,
i: ask me who the duty corporate manager would be for the ! Vogtle Plant, I can tell you. i i Q: Can you tell me what that sheet is? ! A: All I could tell, it was a telephone' sheet with telephone numbers. , t Q: Are you indicating that you don't ever recall seeing that particular document betere? : 2 A: No. ! i r
. i
April 14, 1994 Deposition of Mcdonald (Bound into record at Tr. !
l 1426). ! l . i i Mr. Mcdonald actually knew what the document was and how it fit into company procedures, as the following testimony given at the j! hearing demonstrates: l Q: . . .the On Call Project Manager Telephone List is a formal l
i document referred in Emergency Plant Procedure. Correct? j A

That's correct.
) j * *
Q: It was more than a telephone sheet with telephone
, numbers. It was a document that was part of a. formal plant procedure, wasn't it? 4 A: That's correct. 1 g l Tr. 1424-1426 (Mcdonald). ) 1 1 142 1
further conclude that this testimony was inconsistent with the testimony Mr. Mcdonald presented during the Hobbv proceeding and before this Board; and we conclude that the licensee's statements in the October 3, 1991 response to the 2.206 petition with respect to Mr. Mcdonald's past testimony was not candid, attempted to obfuscate the differences in testimony, failed to present a complete picture of the actual selection process and failed to correct misleading statements contained in the portions of the testimony referred to in the 2.206 petition.*5
4. Falsely asserting in the 2.206 petition response that Mr. Hobby was given a Phase I organization chart (Issue No. 10)
Georgia Power asserts in its April 1, 1991 2.206 petition response on page 6 of Attachment 1 that: Mr. Hobby has omitted material information provided to him prior to the submission of the Petition. A Phase I organizational chart was provided to Mr. Hobby on May 15, 1989 attached to a memorandum from Mr. Fred Williams in response to an April 26, 1989 memorandum from Mr. Hobby. See Exhibit 17. Thus, as early as April 1989, the role of Mr. Farley had_been explained to Mr. Hobby (a manager) by Mr. Williams (an officer of the Company) . (Exhibit 48, p. 6). The assertion that the May 15, 1989 memorandum depicted the Phase I organization or explained Mr. Farley's role in the SONOPCO project is false. We are particularly troubled by the wording of this paragraph because it implies that Mr. Hobby
'5 When GPC submits testimony to the NRC there is a presumption that the selected portions of the testimony are accurate. GPC failed to do this when responding to the 2.206 petition.
143 l 1 l
intentionally omitted material information, when it turns out this information was never provided to him.
, Mr. Mcdonald testified that the reason he stated that Mr.
Hobby made this material omission is because a Phase I organization chart was provided to Mr. Hobby on May 15th by Mr. Williams which purportedly explained Mr. Farley's role. Tr. 1453 (Mcdonald). However, Mr. Mcdonald further testified that the chart which is attached to the letter, Egg Stip. Ex. 35, was D21 a Phase I organization chart. Tr. 1454-1458 (Mcdonald). Mr. Mcdonald then admits that the statement that Mr. Hobby received a Phase I organization chart was a mistake. Tr. 1459-60 (Mcdonald). When questioned further about the organizational chart Mr. Mcdonald's testimony becomes convoluted: Q: Is -- I think you've already testified that the memo attached to Mr. Williams' May 15th memo is not a Phase I organization chart, correct? A: Now I've got to -- let me go back and make sure I'm clear here. That corresponds to the Phase I organization relationships that I had with Mr. ; Dahlberg. I had that relationship from the day I went to work for him on April 1988 until I ' retired. So that is a true depiction of my relationship and reporting responsibilities during that period of time. Q: Okay. Well, taking that to be the case, then -- BOARD EXAMINATION CHAIRMAN BLOCH: Is it a Phase I organization chart? THE WITNESS: Well, see, I don't see this Phase I organization chart talked to in here. I beg your pardon. It is a Phase I organization chart. I think what -- I think what that means -- I think that means that Mr. Williams 144
knew very clearly what was being asked, and he was asked who did he report to, so all he did is pick up the chart which had been approved for Georgia Power and give it back' to them and says, "This is for our reports. This is the Phase I reporting where he is reporting during Phase I," which he was , correct. It is not a -- it is not a -- it is I i a reporting relationship between me and Mr. Dahlberg for -- during Phase I. ! Tr. 1464-1465 (Mcdonald). This explanation is not satisfactory because the assertion , that all Mr. Williams' had to do was provide an organizational chart depicting Mr. Mcdonald's reporting relationship to Mr. Dahlberg is not responsive to Mr. Smith's underlying request that the organizational chart depict the entire organization." Second, Mr. Mcdonald states that the chart depicted the relationship Mr. Mcdonald had with Mr. Dahlberg "from the day I . ! went to work for him on April 1988 until I retired." We believe the record supports that Mr. Mcdonald's reporting relationship to Mr. Dahlberg probably did not change between April 1988 and the time Mr. Mcdonald retired. The difficulty, however, is-that Mr. ,
t Mcdonald did not report to Mr. Dahlberg between April and i
December of 1988. The record supports a finding that the Licensee made a a !
" Mr. Smith requested information regarding the SONOPCO !
reporting chain up through the board of directors. He requested i this information for Messrs. Hairston, Mcdonald and Farley. He j specifically asked how Mr. Farley fit into the picture. When asked j if it would be correct to say that information he received was not i ' responsive to this request, he replied affirmatively. Smith Dep. at 25-26. When asked if by looking at the chart if he could tell what entity Mr. Farley was working for, Mr. Smith replied, "Doesn' t , say." Id. at 26.
)
145 i i l l
~
i i l l 1 ( l material false statement in its April 1, 1991 Response to the
)
2.206 petition by stating that the May 15, 1989 memorandum l depicted the Phase I organization and explained Mr. Farley's role i in SONOPCO. I 1
5. Falsely asserting in the 2.206 petition response that Exhibit B-2 of the "U-1" SEC filing constituted a Phase I organization chart (issue No. 10) l Intervenor asserted in issue 10 to his prehearing statement of the issues that Georgia Power made a false assertion in its
{ April 1, 1991 response to a 2.206 petition when it asserted that :
" Exhibit B-2 of [the SEC U-1 filing] was a copy of the Phase I :
t organizational structure" which commenced operation "[o]n about ! November 1, 1988." Intervenor Exhibit 48 at p. 3. Intervenor l claimed that the organization which commenced functioning on- : ! i' l November 1, 1988 was not depicted as Exhibit B-2 to the U-1 filing. Intervenor claims that the organization functioning as of November 1, 1988 was the Phase II organization that is 1 depicted in Exhibit B-3 to the U-1 filing. Georgia Power asserts ; that the organization depicted in Exhibit B-3 did not begin to function until af ter Southern Nuclear was incorporated. The difference between Exhibits B-2 and B-3 to the U-1 filing boil down to: 1) the B-2 chart does not depict the existence of "SONOPCO," where the B-3 chart does; and 2) the B-2 - i chart does not depict a technical services organization and an - administrative services organization, whereas the B-3 chart does. , i Exhibits B-2 and B-3 to the SEC filing can be found as l part of Joint Stipulation Exhibit 6. l 146 l I l
I t i Joint Stipulation Exhibit 6.*8 i Intervenor is correct. The Phase I organization depicted in l the B-2 chart actually represents the status of GPC's. nuclear j i organization before.the SONOPCO project was formed, while the.B i I chart represents the organization after the SONOPCO project i organization came_into existence on November 1, 1988. Prior to ; November 1, 1988 Georgia Power radically reorganized-its nuclear operations; it established two nuclear project organizations. ;
'l First, Mr. Mcdonald became executive Vice President of Georgia j Power while he continued to retain his position as executive-Vice- l President of Alabama Power; Mr. Hairston became Executive Vice !
President'of Georgia Power s.nd he too retained his prior position [ as Senior Vice President of Alabama' Power. Under Mr. Mcdonald's. l and Mr. Hairston's guidance, Georgia Power's nuclear department [ was split in half. Where.a single department previously managed- ! i both the Hatch and Vogtle plants,-a separate Hatch project'was j formed headed by a separate Vice President, Mr.'Beckham; and a separate Vogtle project was formed headed.by a Mr. McCoy. !: Before the U-1 filing was made in June of 1988, Georgia- ; Power's organization was functioning as depicted in Exhibit-B-2. l This functioning organization was totally reorganized on November ~ l
. i 1, 1988, when Georgia Power employees wereLrelocated't0 the j 'SONOPCO project. At that point in timc~Mr. McCrary was !
I functioning.as the head of the'SONOPCO project's administrative' ) service branch; Mr. Long was functioning asLthe headioffthe 48
' Identical charts can be found as Hairston Exhibits C & D.
147
'l c
4 I SONOPCO project's technical services branch, and Mr. Farley was functioning as the head of the entire SONOPCO project.*' Soon
after November, 1988, Farley personally conducted the weekly i staff meetings of the-SONOPCO. Project without the parti'cipation J
! of.non-double-hatted GPC employees, a SONOPCO Project Board j commenced functioning with significant powers over-nuclear j operations and GPC double-hatted nuclear employees winded'down
~
j
1 their involvement with the GPC Management. Counsel. 'After '
i November, 1988 the GPC Management' Counsel, contrary.to,GPC's ~ assertions in their under-cath' response to the Hobby /Mosbaugh' ; i i 2.206 petition, ceased having any significant input or control l l ' t over nuclear operations. i We conclude that the April 1, 1991 2.206 petition response j j erroneously asserts that Exhibit B-2 to the U-1 filing depicts.a i l phase I organizational chart. ! 6. Georgia Power Misled the Commission During the Vogtle i Unit 2 Full Power License Hearing. , r i
a. Omission of Mr. Hairston from the management l hierarchy and Mr. Hairston subsequent correction j l
} On March 30, 1989 the Commission' held hearings on full: power e i 1
. operation of Vogtle Unit 2. During the course of the hearing ;
i j i l-On September 21, 1988, Mr. Addison announced that Mr. i Farley, Alabama Power Company's then CEO,.would be devoting his l time to the SONOPCO to provide " leadership and insight." Joint Stipulation Exhibit 10. Mr. Meier, the SONOPCO project Director of ! Strategic Planning, testified that an April 27,' 1989 article ' l l appearing in a Georgia Power weekly publication,accuratelyistated that Mr. Farley functioned as "the head of the SONOPCO project."- Meier Dep. pp. 31-32. Moreover, Mr. Meier testified that in Phase I the Technical Services and Administrative branches were staffed , and were reporting to the Executive Vice President of Nuclear, Mr. Farley. Id., at pp. 48-49. 1 148 4 _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ . . _ - . _ _ _ _ - - . ... s_ - , . ._ ._ , _ , _ , _ _ , .,
Commissioner Carr questioned GPC about a " management concern" he had with respect to the reporting structure over plant Vogtle. Commissioner Carr observed that the plant manager seemed to be "a long way from the CEO" and asked Mr. Mcdonald to explain "the : hierarchy between the CEO and the plant manager." Intervenor l Exhibit 17 at p. 3. In response, Mr. Mcdonald stated: Okay, That's what you mean. Okay. The hierarchy ' between a CEO and a plant manager, I report to Mr. Dahlberg. Reporting to me is Ken McCoy who is in charge of the entire Vogtle Project. He and I have -- I have two Vice Presidents reporting'to me. The Vice President of Hatch has a similar position to his. So he is responsible for all the corporate support as well as the plant. George reports directly to him. Intervenor Exhibit 17 at p. 3. l Mr. Mcdonald's response was materially false and misleading l because he specifically excluded an entire level of management between Mr. McCoy and Mr. Mcdonald; he excluded Mr. Hairston, the ! Senior Vice President. More troubling than Mr. Mcdonald's making the inaccurate l statement is the fact that, although seated at the Commission i table, neither Mr. Dahlberg, Mr. McCoy or Mr. Bockhold corrected Mr. Mcdonald's mistake. Intervenor Exhibit 17 at p. 2. GPC eventually submitted a correction on May 22, 1989. JE 12. The correction is too little too late for the following reasons: 1) it is simply inconceivable that no one from GPC realized that Mr. Mcdonald had made the error when it was made and the correction should have been filed before the Full Power License was issued. Instead, it was filed after; 2) the correction was not directed to the attention of the Commission; 3) the correction submitted 149
{was inadequate'.58 l
.i
b. Mr. Mcdonald and Mr. Dahlberg'aisrepresent the. !
Corporate structure and function that existed when i L the Full Power License hearings occurred. L In response-to Mr. Mcdonald's' description.of:the management
.{
structure,-Commissioner CarrLeontinued.to press his concern ~: COMM. CARR: I understand your' organization'. . I s'till have'- l
my concern...if [the plant manager'has] a. 1 problem that~needs the CEO'scattention'he j goes a long.way to get.there, wasimyl concern. l 1
JMr. Dahlberg, seeking to pacify Commissioner Carr, i immediately: interjects the assertion that he had " personal hands. on"' involvement'with the plant Vogtle's management. team: MR. DAHLBERG: I guess I;should' add something on that matter.also. I guess.one of the things. we have done well.is while Pat
]:
[ Mcdonald) is an Executive Vice. . I l- President of Nuclear, it'does meanithat L he is available'to the site. He visits . l the site. He is there, He talks'to the ) l people and he looks at the' equipment... ) [ It doesn't stop with Pat. I have the j i same:tvoe relationshio. We do have a-Board of Directors committee for oversight of nuclear. They even visit the site. So it's notnremoved; I-think we have established the kind of a-relationship and the kind of a.oersonal' hands on with manaaement. l Intervenor Exhibit 17 at p. 5. Mr. Mcdonald piggy-backs on Mr. Dahlberg's statement by explaining the feedback mechanism " routinely" employed to.make~ sure the " highest levels of management" and the " entire management structure" are communicating: 58 A discussion on the inadequacy of the correction is set ! forth below. 150
l Let me expound on that just a moment. One of our major management techniques is managing problems and we keep pretty comprehensive lists of the top problems, top 10, 20, 30 problems. Those problems are-reviewed periodically by all levels of manaaement including the Board of Directors. 1 We have a completely technical meeting with the Board of ! Directors describing such things as the PERM problem and any other kind of technical problem there is, so that the entire manaaement structure is involved in eersonnel matters. 1 technical matters and what have vou on a routine basis. All these facts which micht otherwise cet lost are broucht un to the too level of the comoany. On the Board of Directors committee, which he~(Mr. l Dahlberg] takes part, we have some very capable people from i various walks of life, like almost any board. We have a gentleman who is head of a big construction company and another -- various types of things. So I think that we talk ' technical detail on a routine basis with all levels of manacement very frecuentiv. Intervenor Exhibit 17 at p. 6. (emphasis added) . Mr. Mcdonald's and Mr. Dahlberg's back-to-back statements l presented a materially false depiction of the makeup, l interactions and structure of the management which was , functioning at the time of the Full Power Hearings. Mr. Dahlberg's involvement with plant Vogtle was'hardly " hands on." Mr. Dahlberg did not know many basic terms which any " hand on" manager of a nuclear facility would necessarily have to be fully familiar. He did not know what a NUREG was; he did not know what a Confirmation of Action (COA) letter was; he did not know the role boron played in the operation of a nuclear reactor or that - water was the moderator for the nuclear fission process at plant l Vogtle; or that plant Vogtle had a plant review Board. Tr. 1151- - l 52 (Dahlberg). He never saw the emergency plan for plant Vogtle ; (Tr. 1232). He was so unfamiliar with the SONOPCO projects ! l operations in Birmingham that he didn't know that Farley l 151 l l > l i i
conducted weekly staff meetings or the GPC-double-hatted managers located in Birmingham and didn't know that Mr. Mcdonald's office . 1 was next to Mr. Farley's office. Tr. 1181-83 (Dahlberg). More significantly, he was not aware of many of the basic safety systems and issues which were occurring at plant.Vogtle during his tenure as the CEO of GPC. His failure to know what a coa letter was indicated his complete abdication of knowledge ! related to the very important COA filed in response to the site Area Emergency. His failure to know what Plant Review Board (PRB) was indicated that he was not kept informed of the numerous { issues which were regularly dealt with by the PRB and was l l unfamiliar with the important and mandatory safety functions ' performed by the Board. The fact that he was unfamiliar with the term " dilution valve" indicated that he was never properly briefed on the " dilution valve" issue for which the NRC OI found wilful misconduct on behalf of GPC and for which the NRC Staff issued a large fine against GPC. Tr. 1151-52 Since 1990 GPC has been subjected to numerous NRC investigations and reviews.about the alleged wilful misconduct of i _Bockhold and McCoy. Significantly Intervenor raised these issues in a 2.206 petition and in subsequent amendments to that petition. This licensing proceeding directly concern the allegations raised in the petition. Yet, Mr. Dahlberg never reviewed the 2.206 petition filed by Marvin Hobby and Allen Mosbaugh. Tr. 1063-66 (Dahlberg) ; and unaware that allegations of " wilful misconduct" had been filed against Vice President McCoy 152
and plant Manager Bockhold. Tr. 1152-53 (Dahlberg).51 For Mr. Dahlberg not to know the nature of these allegations, or that such serious allegations had been raised against two of the most i 1 important managers with responsibility over plant Vogtle is I i shocking. It demonstrates a complete abdication of responsibility and total absence of " hands on" management. In 1 i juxtaposition, where Mr. Dahlberg did not even know that such significant charges had been filed against Mr. McCoy and Mr. , Bockhold, Mr. Farley not only knew of the charges, he knew who {
; filed them; that there was tape recorded evidence in the l possession of NRC relating to the charges; he formed a very 5
strong opinion hostile to the individual who raised these , i concerns and had a strong opinion as to the integrity of the j k managers who were accused of the misconduct. Tr. 1831-39 4 ; ) (Farley). i Mr. Dahlberg's absence of " hands on" management is also j I evident by his near total ignorance of nuclear operations in , l general and the operations of plant Vogtle in particular. He did not know the official positions or even the identity of some of 52 This is a clear indication that. he abdicated his responsibility for insuring that all information supplied to the NRC was accurate, truthful, candid and complete. Despite the. fact that Mr. Dahlberg never reviewed the 2.206 petition and never even review the entire response to the 2.206 petition, he knew that it was the responsibility of the CEO to ensure that the 2.206 petition , response was " completely correct. " Tr. 1061,1066,1069 (Dahlberg) . l Yet, Mr. Dahlberg was not even aware that the 2.206 petition had ! raised concerns about his conduct and his control of plant Vogtle, Tr. 1067 (Dahlberg)("Q. Were you aware that certain of your actions were called into question by that 2.206 petition? A. No, l sir"); and was unaware that Intervenor had filed amendments to the ; 2.206 petition were ever filed. Tr. 1070 (Dahlberg). 153 . 1
the most important persons who worked in the nuclear side of GPC. ! For example, he did not know whether Vice Presidents Long and i McCary were officers of GPC (Tr. 1149), he did not know who the ; engineering and licensing manager at plant Vogtle was (Tr. 1150), j he did not know who the maintenance support manager was (Tr. i 1151) and he did not correct the statement made by Mr. Mcdonald directly to the NRC Commissioners which failed to mention that VP f Hairston was in the chain of command at the GPC/SNOPCO project. ; Finally, Mr. Dahlberg testified that he was unaware of any : reason why GPC was ever fined by the NRC. Tr. 1151 (Dahlberg). This testimony is also very troubling for the Board. A primary reason the NRC issues a notice of violation and a civil penalty to a utility is to insure that the utility is fully aware of the problem and has taken or will take aggressive steps to correct the problem. If the individual with the final responsibility for insuring the safe operation of plant Vogtle is unaware of why the NRC issued any civil penalties, how could that individual j properly supervise the licensed activity? Once again, this testimony demonstrates that the real control over plant Vogtle i did not reside with Mr. Dahlberg; that Mr. Dahlberg had abdicated his responsibility and in no sense was functioning as a " hands -
on" manager. ;
i l
c. Omission of Mr. Farley from the management 1 hierarchy )
The record establishes that GPC viewed the SONOPCO project as a separate entity. Moreover, by the time the hearings commenced, Mr. Farley relocated his offices to the SONOPCO 154 I l 1 l
j
i l l l pro]ect executive floor; and his title was changed from CEO of l APC to Executive Vice President-Nuclear of The Southern Company l and SCS. He gained overall responsibility for managing the 1 ! SONOPCO project and SONOPCO project personnel were advised that Mr. Farley had " assumed overall responsibility for providing management and technical services" for GPC's and APC's nuclear plants. Intervenor Exhibit 89 at p.1. Significantly, at no time prior to the Full Power License hearing was NRC either in writing or orally told that Mr. Farley l had assumed overall management responsibility for plant Vogtle.s2 Prior to the Full Power Licensing hearing, the only document depicting the corporate organization above Mr. Mcdonald provided to the NRC is Figure 13.1.1-1 to Amendment 39 of the plant Vogtle 52 GPC knew that NRC Staff went to the SONOPCO project to inspect the corporate management structure over GPC's nuclear l plants. _S_2g JE 11. During this inspection NRC Staff was not informed of Mr. Farley's role within the SONOPCO project. S.gg Tr. l 2680 (Rogge) ; Tr. 2680 (Allenspach). On February 7,1989 NRC staff issued the final inspection report concerning GPC's corporate organization structure that would be relied upon when decided to
issue authorization to commence full power operation of plant
,Vogtle Unit 2. Tr. 2682-2683. This inspection report explained NRC's understanding of the functioning of the SONOPCO project organization as follows:
The corporate organization which is referred to as the SONOPCO Project is headed by the Executive Vice President. The Vice President of Technical Services and Vice President of Administration report to the Executive Vice President of Nuclear Operations. JE 11 (inspection report at p. 3). Based on the above description, NRC staff did not understand l that Mr. Farley was the functional head of the SONOPCO project. 155 t
l FSAR, dated November 23, 1988 (" Figure 13.1.1-1"). S_eg e JE 12.53 Figure 13.1.1-1 depicts Mr. Scherer (GPC's Chairman of the Board and CEO) heading the corporate nuclear organization; Mr. Mcdonald I (GPC's Executive Vice President-Nuclear) is shown as reporting to Scherer; while GPC's President (Mr. Dahlberg) is depicted as t being outside the chain of command. NRC staff witnesses testified that, in preparation of the March 30, 1989 Full Power License hearing, they conducted an inspection of GPC's corporate organization and left with the understanding that it was l functioning as depicted in Figure 13.1.1-1 of FSAR and so stated l l l 53 ! The FSAR represents an essential safety document. 10
C.F.R. S 50.34 (b) (6) requires that an FSAR be submitted by the
! licensee. Georgia Power is required to address in the plant Vogtle FSAR information concerning " (i) The applicant's organizational structure, allocations or responsibilities and authorities, and ! personnel qualifications requirements." Id. Moreover, the FSAR must also clearly set out the division of responsibility in order , to meet the Quality Assurance criteria requirement set out in 10 ) C.F.R. 50 App. B, I Organization ("The authorities and duties of l persons and organizations performing activities affecting the ! safety related functions or structures, systems, and components shall be clearly established and delineated in writing"). j Chapter 1 of the plant Vogtle FSAR under the heading
" Description of Corporate Organization" states:
The GPC is a public utility incorporated under the Laws of the State of Georgia with its principal offices located at 333 Piedmont Street, Atlanta Georgia. GPC is a wholly-owned subsidiary of The Southern Company. See FSAR Chapter 1 at 1.4.1.2. l Chapter 13 of the plant Vogtle FSAR at 13.1.1-16 states: The corporate organization, which provides the line responsibility for the operation of the VEGP, is shown in figure 13.1.1-1. The ultimate responsibility. . . rests with the chairman and CEO, who assigns responsibilities to the various organizations as described in paragraph 13.1.1.2. 156
N l in NUREG-1137, Supplement 8, to the Vogtle Safety Evaluation Report, which was issued in February of 1989. NRC.Prefiled
Testimony at p. 7. In fact, between November, 1988'and the commencement of the Full Power Licensing Hearing, NRC did not receive any information (written or oral) indicating that GPC',s ;
corporateorganizationhadchangedorwasnotfunktioningas: depicted in Figure 13.1 of NUREG-1137 or FSAR Amendment 39, j Chapter 13, Figure 13.1.1-1. Tr. 2684 (Hood).. 7 ,,.' , 6 Given that GPC did not correct NRC's misunderstanding of the functioning organizational structure prior to the commencement of the Full Power Licensing hearing, Commissioner Carr's request to l- GPC to explain "the hierarchy between the CEO and the plant i manager" was extremely significant and it required!no less than a complete and candid description'of the relationship Mr.' Mcdonald a
,. l l had with Mr. Farley and with Mr. Dahlberg. Given the NRC's i actual understanding of the functioning of the SONOPCO project, this omission was material.
s
d. The description of Mr. Dahlberg as a "handsLon" manger of GPC's nuclear operations is misleading. .
Licensee asserts that Mr. Dahlberg was a " hands-en" sanager j 1
'over nuclear operations. Unfortunately, documentary evidence
does not support this assertion. First, licensee failed to produce a sir gle letter, . memorandum, fax or~ other docume'ntation demonstrating that a single piece of paper was exchanged be' tween Mr. Mcdonald and Mr. Dahlberg. Indeed, the-only dohument they ;
testified about was the letter Mr. Dahlberg issued concerning the ,
~
1 establishment of NOCA. But in the case of NOCA, the record 157 " l J t i I '\ l 5 l
i
?
. l demonstrates that Mr Mcdonald disregarded Mr. Dahlberg's. written directive and countermanded;it by refusing _ to provide NOCA with' , 6 , the information it sought. Other.than this one memo.one wouldf expect additional written communication to have occurred between' i
' them, yet none was produced. q y , ; Second, Mr. Mcdonald essentially stopped going to Management J 4.
e' ! 3 Council meetings after December of.1988. Based on the imper, tint [ function the Management Council played, it is difficult to' g l conceive that Mr. Dahlberg had " hands-on" management over nuclear' ; e a~ o operations. Indeed,ifhedid_it(certainlyisnotreflectedin : 1 his 1989 appointment calendar. Mr. Dahlberg's contact with Mr. t Mcdonald and all of.the other GPC corporate managers involved- I with nuclear operations is almost non-existent, particula'r when ! compared to the level of communication Mr. Dahlberg wap having with his other Executive Vice Presidents. I In 1989 GPC had five Executive Vice Presidents-all of whom directly reported to Mr. Dahlberg. They were: 1) H. G. Baker;
2) Dwight Evans; 3) J. C. Hemby; 4) W. Y. Jobe; and 5) Pat Mcdonald. Egg Joint Stipulation Ex. 35 at p. 2. GPC als ihad five Senior Vice Presidents, all of whom reported to an Executive !
Vice President. The Senior Vice PresidentuIare as follows: 1) , Mr. Hairston (reporting to Mr. Mcdonald) ; 2) Kerry Adams (also reporting to Mr. Baker) ; 3) Tom Boren (reporting to Mr. Baker); t
4) G. Hodges (reporting to Mr. Hemby); and 5) W. Dahkle (also l reporting to Mr. Hemby). Id. A careful review of'Mr. Dahlberg's ;
1989 calendar demonstrates that Mr. Evans was scheduled to meet 158 i i k
<m -
Lb
+ l with Mr. Dahlberg 47 times; Mr. Jobe was scheduled to meet with { 1 i Mr. Dahlberg 22 times; Mr. Baker was scheduled to meet with Mr. Dahlberg 23 times; and that Mr. Hemby and his two Senior Vice ! Presidents were scheduled to meet with Mr. Dahlberg 24 times.5* 4 l
By comparison, Mr. Mcdonald was scheduled to meet with Mr. :
f Dahlberg 'four (4) times during the entire year and'his Senior Vice President, while Mr. Hairston as well as every other nuclear
! executive had no scheduled meeting with Mr. Dahlberg during the entire year. Indeed, Mr. Dahlberg met more frequently _with Mr.
i Farley during 1989 than he did with Mr. Mcdonald.
! The only form of regular contact GPC alleges Mr. Dahlberg actually had.with Mr. Mcdonald were telephone calls from Mr.
l Mcdonald to Mr. Dahlberg. As a matter of law, the undocumented phone calls between Dahlberg-(and/or members of his staff) and Mr. Mcdonald (and/or members of his staff) were not sufficient to ;
i establish control. For example, in Telephone and Data Systems, Inc. v. FCC, 19 F.3d 42, 49 (D.C. Cir. 1994), the Court' stated that the control of daily operation "must mean more than approval i of major expenses and a loosely defined practice of maintaining fcontact'." The Court also noted that lack of involvement in ; critical responsibilities demonstrated lack of control. Id. Mr. 1 Mcdonald testified that he would call Mr. Dahlberg's office on ' week days and sometimes would speak directly with Mr. Dahlberg; that he could go a few days without speaking to Mr. Dahlberg.and, 5' Appended as Appendix A is a chart depicting the dates the various individuals are identified in Mr. Dahlberg's 1989 calendar as having met with Mr. Dahlberg. 159
- - . . - - ..- - .- . . - .. .-~
t on rare occasion, could go more than a few days without , I communicating'directly with Mr. Dahlberg. Tr. 1505 j (Mcdonald).55 Mr. Dahlberg's prefiled testimony fails to ! mention or discuss the scope, duration or frequency of any oral l communication he may have had with Mr. Mcdonald, although he did testify to'such at the hearing. Tr. 1135 (Dahlberg). The fact f remains that GPC failed to produce any documentary evidence supporting the existence of a single phone call, or for that , matter the transmission of a. single' letter, memorandum or fax between Mr. Dahlberg's office and Mr. Mcdonald." However, more significantly was Mr. Dahlberg's own testimony which 55 Mr. Mcdonald had previously explained the communication as follows: , i
. . .there are calls made from the plant. . .These are phoned ;
in and passed up to me. Then, I call if there is i something significant at all. I will call or George [Hairston) will call Elmer Harris if it's.his, or Bill i Dahlberg if it's'his.
]
JE 20 at p. 21 (January 11, 1991 Transcript of NRC proceedings). f i
" The lack of such documentary evidence is particularly disturbing because GPC knew of the underlying allegation no later I than September of 1990, when Mr. Hobby and Mr. Mosbaugh filed their 1 2.206 petition and reasonably should have taken steps to preserve such evidence. GPC provided no reasonable explanation why it would not have preserved such documentary evidence related to the 1 communications between Mr. Dahlberg and Mr. Mcdonald after it knew l of the allegations. Indeed, Mr. Dahlberg specifically testified that his secretary maintained phone records of calls coming into his office. It stands to reason that if this documentary evidence supported GPC it would have been retained and produce at the hearing. GPC bares the ultimate burden in this case and its ,
failure to produce any documentation should give rise to an adverse l I inference that regular communication between Mr. Mcdonald and Mr. I Dahlberg did not transpire. S.gg 2 J. Wigmore, Evidence S 285 (3d ed.1940) ; Rockincham Machine-Lunex v. NLRB, 665 F.2d 303, 305 (8th Cor.1981) ; International Union (UAW) v . NLRB , 4 5 9 F. 2d 13 2 9, 1335-42 (D.C. Cir. 1972). 160 i
1
-l )
1 l confirmed his near total lack of experience and knowledge of ) nuclear operations. Given Mr. Dahlberg's level of experience and j i knowledge of nuclear operations he needed more than a short phone call to function as a hands-on manager.57 : Mr. Dahlberg became GPC's President in June of 1988 but did not have responsibility for GPC's nuclear operations until some j i time in December, 1988. Egg Dahlberg pp. 1, 4. The record ! demonstrates that after Mr. Dahlberg joined Georgia Power for nuclear operations until the March 30, 1989 Full Power Licence hearing occurred, Mr. Dahlberg visited the plant Vogtle site , once, which occurred on February 3, 1989. But Mr. Dahlberg's calendar demonstrates that the purpose of this visit was to e attending a "Vogtle Project Board Meeting." The Vogtle Project t Board was a separately established entity limited to construction activities at plant Vogtle and was not part of and did not report , to GPC's nuclear operations, which had been transferred to the SONOPCO project under the direction of Mr. Mcdonald. Moreover, 4 i the minutes of the Nuclear Operations Overview Committee t demonstrate that, between May 23, 1988 and March 15, 1989, the _ Overview Committee never visited the plant Vogtle site. Egg Minutes of Overview Committee meetings dated 5-23-88 at i 1 ll (meeting held in Atlanta); 7-21-88 at i1 (meeting held in : Atlanta); 10-12-88 at i1 (meeting held at plant Hatch); 11-29-88 at i 1 (meeting held in Atlanta); 3-15-89 at i 1 (meeting held in 5' Indeed, if he were truly a hands-on manager he would be expected to know something as basic as the functioning of the plant Vogtle Plant Review Board. 161 1 I
Atlanta). In sum, it appears that prior to the Full Power License t hearing, Mr. Dahlberg had limited interaction with plant Vogtle j and its nuclear operations management. Moreover, for a period of a year following the Full Power License hearing Mr.'Dahlberg visited the plant vogtle site only on April 26-27, 1989. His April 26th visit was limited to ' 90 minute lunch meeting with l t Burke County citizens. Immediately'following this meeting Mr. l Dahlberg flew back to Atlanta. The next morning he returned to l l plant Vogtle as an attendee of the Board of Director's Overview Committee meeting held at the plant Vogtle site." : Finally, the record escablishes that Mr. Dahlberg did not provide Mr. Mcdonald with a separate performance appraisal; that the appraisal was apparently' prepared by Mr. Harris; was not signed by Mr. Dahlberg and that Mr. Farley was contacted for ! input into the appraisal. Tr. 1861-1862 (Farley). Hands-on ! l management requires more than input into a performance appraisal l l prepared by a separate company concerning an Executive Vice President with supervisory authority over half of the company's
. assets.
7. Performance Indicators (Issue No. 9) l Georgia Power states in its April 1, 1991, 2.206 Response l
l that the resolution of a dispute between Mr. Dahlberg and Mr. i
" The Overview Committee minutes demonstrate that this was the first committee meeting held at plant Vogtle in a year's time (earlier Committee minutes were not produced by Licensee to determine if or when the Overview Committee previously visited plant Vogtle).
1 162 l l l
Mcdonald regarding the presentation of performance indicators to the Georgia Public Service Commission (PSC) was evidence of the reporting relationship and who was in control of nuclear operations. In its 2.206 Response, Georgia Power states: l A specific example demonstrating that Mr. Dahlberg is, indeed, responsible for and in control of GPC matters concerning plants Hatch and Vogtle is reflected in Hobby v. GPC. In August 1989, Mr. Mcdonald had a disagreement with Mr. Dwight Evans concerning testimony to be filed with the Georgia Public Service Commission on the subject of nuclear plant performance standards. Trial Tr. 365-68, 380-81. That disagreement was resolved by Mr. Dahlberg in an August 10, 1989 meeting during which Mr. Dahlberg directed Mr. Mcdonald to take certain actions. Exhibit 48, p. 8. This represents the only example GPC provided to the NRC in l j its 2.206 response. Intervenor alleges that this statement is false because Mr. , Mcdonald did not follow Mr. Dahlberg's instruction after the August 10, 1989 meeting and because Mr. Farley reviewed and approved the testimony to be submitted which did not include alternative performance indicators. Intervenor further alleges l that the statement is material because it was made in an effort
'to persuade the NRC that Mr. Mcdonald reported to Mr. Dahlberg on all matters concerning nuclear operations. Licensee argues that since both Mr. Dahlberg and Mr. Mcdonald testified that the decision was made to prepare alternative performance standards at this meeting, that the agreement to prepare these standards was l honored.
The record establishes that the PSC placed Georgia Power on 163 l l
d
'l l
notice some two years prior that at the next rate case it: !
. expected Georgia Power to prepare an alternative performance indicator. Intervenor Exhibit 141 at p. 3579, 3583. Mr.
Dahlberg testified that he wanted an alternative indicator because he did not want Georgia Power to get. stuck with the standards recommended by the PSC witnesses. Tr. 1112 (Dahlberg). , By August of 1989 Mr. Dahlberg and Mr. Mcdonald were in total [ disagreement on how to proceed before the PSC. Mr. Dahlberg decided that Georgia Power should prepare its version of an acceptable performance indicator. Counter to Mr. Dahlberg's , i judgment, Mr. Mcdonald determined that the company would not 1 prepare an alternative to the company and would not allow SONOPCO project personnel to work on an alternative. indicator. Dahlberg 17; Mcdonald 15. Mr. Farley also opposed.providing an alternative performance standard to the PSC. Tr. 1109 , (Dahlberg). On August 10, 1989, Messrs. Dahlberg, Mcdonald and Evans met , j to resolve the dispute. The discussion was heated to the point where Mr. Mcdonald brfte a rung in the chair in which he was seated. Sag Hobby I. 43; Tr. 1105 (Dahlberg); Tr. 1504 ! J (Mcdonald). At thu conclusion of the meeting Mr. Mcdonald was l told to preparc an acceptable performance indicator as an alternative to the indicators presented by PSC staff. After August 10th a meeting was held at the SONOPCO project. In attendance were Messrs. Farley, Mcdonald, Johnson, Barker and Hicks, as well as just about all of the top management of the 164 l l _ -
l l l l SONOPCO project. Johnson Dep. p. 26. Mr. Johnson testified that i Mr. Mcdonald stated that he was not going to allow SONOPCO L project personnel to prepare an alternative performance i indicator, Hobby pp. 43-44, and that the decision not to work on an alternative performance indicator was jointly made by Mr. Mcdonald and Mr. Farley during the course of the meeting. Johnson Dep. p. 38-39. This event was confirmed by Michael-Barker, who discussed the matter with Mr. Hobby. Hobby p. 44. Moreover, Mr. Johnson spoke with SONOPCO project's nuclear performance engineers, Mr. Larker and Mr. Hicks, and both confirmed that they were instructed not to do any more work on an , r alternative performance standard ~and-that this directive came l l from SONOPCO project upper management. Johnson Dep, p. 29. Georgia Power submits that Mr. Mcdonald did, in fact, follow Mr. Dahlberg's direction. According to Mr. Dahlberg, Georgia Power provided rebuttal via a consultant, Mr. Fitzpatrick, who l suggested modifications to the PSC staff's proposed performance ! 1 ! standard by identifying "five areas where the proposed standard ; needed to be changed." Licensee's post-hearing brief at p. 136 l , (citing to pp. 3523-64 of the PSC hearing transcript) .5' l l l Georgia Power states that "when it became clear that the PSC was ss Georgia Power suggests that Intervenor was confused by l ! the company's public opposition to such standards while at the same time the company proposed changes via a consultant, Mr. Fitzpatrick who testified before the PSC. id., at pp. 136-137. This explanation is lacking because the witnesses who testified on l behalf of Intervenor did not obtain their knowledge from public l sources, but were rather the actual GPC employees tasked to work on this issue and attended strategy meetings. 165 l l.
l l l ; prepared to adopt such standards, Mr. Fitzpatrick's testimony provided the basis for Georgia Power to identify the necessary changes in its brief submitted to the Public Service Commission." , Id., at p. 137 (citing Tr. l . 2 , 1121-22 (Dahlberg). i i l Georgia Power's explanation is lacking and contradictory to l l testimony presented by Mr. Fitzpatrick during the PSC hearing. That-hearing transcript indicates that the Commission asked Mr. l Fitzpatrick if Georgia Power had engaged him to present the ; l Commission with a performance standard based on his theory "or have they just engaged you to tear down the GDS program? . . . Yes or no, do you have a program for us?" to which Mr. Fitzpatrick responded "the answer is no, given the time that was available." Intervenor Exhibit 141 at p. 3578. When the l l Commission pressed further by asking "have they engaged you to do j that, to present to us sometime today, or sometime in the , future?", he responded that "it hasn't been discussed with me." Id., at 35798. The Commission stated that it believed that'it j was the company's responsibility, if it doesn't agree with the j GDS program, to come forward with a program that meets aci
. removes the defects. Id. The Commission further stated that i there had been interest in this for two years, "the staff has worked on it, and the company has worked on it, but only on the side of what's wrong with somebody else's and they haven't come in with one of their own." Id . (emphasis added) . The Commission then asked Mr. Fitzpatrick how long it would take for him to put together performance standards for plants Vogtle and i 166
i l l Hatch, to which he replied: " [I] f we were to start today, in six l l months." Id. at 3583. The Commission concluded that Georgia Power must not be interested in proposing performance standards because it had over two years to do so and had not. Id. According to Mr. Fitzpatrick's own testimony during the PSC hearing, licensee is now mischaracterizing the purpose of that l testimony. Licensee's assertion that "Mr. Fitzpatrick's rebuttal testimony critiqued the PSC's proposal and identified five areas ! where it needed to be changed" does not explain why an ! alternative performance standard was not available at the hearing for submission to the Commission. That Georgia Power may ultimately have submitted an alternative performance standard after the close of the record as an attachment to its brief does not adequately explain why the alternative was not available for inclusion before the hearing ended.' Moreover, Mr. Dahlberg testified before us that on September 12, 1989, he testified under oath to the Georgia PSC that Georgia Power had no intention of filing an alternative performance standard. Tr. 1118-19 l (Dahlberg). In this respect, Mr. Dahlberg testified as follows: Q: Mr. Dahlberg, do you remember being questioned September 12, 1989 before the Public Utilities Commission, State of Georgia, under oath and asked the following question, a The company" meaning significantly, Intervenor Exhibit 46 includes a September 15, 1989 memorandum identifying that the first draft of the major elements of a Georgia Power proposed performance standard was not prepared until September 15, 1989. Id., at p. 1. This memo was t ant copied to Mr. Dahlberg, it was rather copied to Messrs. Farley, Mcdonald and the entire SONOPCO project executive staff. 167
Georgia Power, " generally was aware as early as March and certainly in April and the May time frame of this year that the staff was going to address the performance standard issue in this case, were they not?" Your answer was, "That's correct." Do you remember that testimony? A: Yes sir. Q: And then there was a follow up question. "And the company has not filed a performance standard in this case and has no intention of doing so, is i that right?" ' And your answer was, "That's correct." A: Correct. Q: And in response to this and other questions on-l this same day, you informed the Public Utilities '
Commission that Georgia-Power would not be i proposing the alternative performance standards '
which were an issue in that proceeding, isn't that correct? ; A: I believe that's correct, ves. i r * * + Q: And do you remember ever seeing a transcript of [ the September 15, 1989 proceeding of the Public i Utilities Commission in which Commissioner Andrews : stated, "I would just comment that it appears to me that the company has knowingly and willfully : put the Commission to the choice of the staff's ! ! performance plan or none. And at this point in l time I believe.the Commission is-going'to have to l live with that and the company is going to have to . live with it." Do you remember that? l A: Yes,
Tr. 1119-20 (Dahlberg) (emphasis added).
i Georgia Power did not present a straight forward explanation ; to explain why the company was not prepared to present at the i hearing an alternative performance indicator. We must take the i testimony presented before the PSC at face value. In sum, that testimony establishes that Mr. Fitzpatrick never consulted with 168 j l l
i Georgia Power about preparing an alternative performance j indicator; that Mr. Dahlberg was unprepared to present an t alternative when directly asked to do so by the PSC. It stands to reason that, if-the SONOPCO project would not allow its staff to work on an alternative performance standard, which is_the- : testimony of Mr. Hobby and Mr. Johnson, the reason Mr. Dahlberg I could not present an alternative at the hearing was because the i i expertise and resources needed to work on this project were ! instructed not to do so by Mr. Mcdonald, with the concurrence of f Mr. Farley. We must conclude that the only factual example presented by ! GPC in its response to the 2.206 petition erroneously asserts that Mr. Mcdonald followed Mr. Dahlberg's instructions following-the August 10 meeting. It was not Mr. Dahlberg authority but the PSC's reaction that coaxed the SONOPCO project to prepare the , I alternative performance indicator.
8. Georgia Power's Lack of Candor toward the NRC is l Supported by the Testimony of McCoy and Farley l l
l One of the issues this Board must address is whether GPC's , responses to the Hobby /Mosbaugh 2.206 petition and'other l statements and filings with the NRC demonstrated the level of i ! condor required under NRC regulations. On this issue, the testimony regarding statements made by i the plant Vogtle Vice President Kenneth McCoy and statements made by the former Southern Company Executive Vice President for l Nuclear,Mr. Joseph Farley are very instructive. According to testimony by Allen Mosbaugh, which is fully 169 i
l ! supported by a contemporaneous tape recording of the event, Mr. j McCcy's address to his staff represents a fundamental lack of candor. In a statement to his staff made during an important NRC l on-site investigation, McCoy instructed his staff.not to be fully candid with the NRC. The taped transcription of McCoy's comments speaks for itself. Egg McCoy Rebuttal Ex. A.'1 l l Even more telling evidence of the lack of candor regarding i ! comments to the NRC was demonstrated in the testimony of Mr. Farley. Mr. Farley went so far as to testify that it was inappropriate for GPC employees such as Mr. Mosbaugh to report concerns to the NRC regarding alleged material false statements made by GPC/SNOPCO employees. l l Mr. Farley testified that he knew Mr. Mosbaugh had " alleged ! l l deliberate misrepresentation," and Mr. Farley " felt that inanoropriate and out 'of order because I don't believe that our 5 The pertinent segment of the tape transcript reads as follows:
...we need to grow to the point that we're just like a family and, you know, we may fight among ourselves but when externally, we go out and someone brings up l something externally or something like that, and uh, we defend our reputation and we all support each other an we all have a part to do and that sort of thing. I think, I think that's the worst thing that [ inaudible] picked up on. We have not matured to the point that we all feel like a solid team and we talk to each other about our problems and that sort of ; thing. But when somebody ,
external to us says, uh , "what do you think about those corporate guys, " or something like that, you tell them "you got the best corporate organization in the world." l That's what you tell them externally, then you get on the phone (laughing) and say, "you guys didn't support us or whatever the problem is." I think you all understand the context of what I'm talking about. McCoy Rebuttal Ex. A. l l 170
_ . =. __ _ _ _ _ _ . __ - _ . . - _. . . . - _ _. _ _ _ . . i I ceoole do that or did that. Certainly'I didn't.'" Tr. 1838 (Farley). Mr. Farley further testified that'he'was upset about the allegations of wrongdoing on the part of-people with whom he had a. great deal of confidence. Tr. 1839 -(Farley). As a matter of law, it is not " inappropriate" for an employee to raise safety related concerns with the NRC, even if those concerns allege that'various managers engaged in deliberate j l misrepresentation to the NRC. As the U.S.' Court of Appeals for the Fourth Circuit recently stated'in'a case arising under'the Energy Reorganization Act,'that Act "gives absolute ir:aunity from f i on-the-job retaliation to 'whistleblowing employees who report safety violations of their employers to the Nuclear Regulatory Commission. Carolina Power and Licht Comoany-v. U.S. DOL _ _ , . ., F.3rd __, No. 94-1459, Slip ~ op . - p . :2 ( U . S .- Court of Appeals'for i the 4th Cir.,. January 10, 1995). i I Not only did Mr. Farley not want employees such as Mr.
'i Mosbaugh to be candid with the NRC, he did'not even wantLsuch employees to even file certain concerns with the NRC Given Mr.
Farley's demeanor at the hearing when testifying about Mr. Mosbaugh's reports to the NRC, it is fully evident that Mr. Farley forcefully communicated his philosophy regarding the inappropriate nature of certain contacts with the NRC to his immediate staff (including all those who participated in the Farley staff meetings). In fact, Mr. Farley admitted during his testimony that he communicated this philosophy to other GPC and SONOPCO project employees. Tr. 1832 (Farley). 171
4 Mr. Farley's hostility toward employees who raised serious allegations of misconduct with the NRC, combined with Mr. McCoy's statement to GPC employees about how to communicate problems to
" external" entities, demonstrate that GPC had a philosophy and.
practice of not being fully candid with the NRC. This testimony , tends to support intervenor's contention that GPC's improper statements in their response to the 2.206 petition, their improper statements during the March, 1989 NRC meeting regarding the chain-of-command and Mr. Dahlberg's " hands on" relationship j with plant Vogtle and GPC's contradictory statements regarding a Mr. Farley's place in the emergency plan were not the result of
harmless errors, but instead demonstrated a consistent attitude i
by GPC and SNOPCO not to be fully candid with the NRC. t H. OMISSIONS AND MISREPRESENTATIONS REQUIRING THE BOARD TO ( FIND THAT AN ILLEGAL TRANSFER OF CONTROL HAS OCCURRED. We next consider omissions and misrepresentations that are based on the presumption that Georgia Power did transfer its license and/or that Mr. Farley should have been considered a member of management reported in the various FSAR filings. These omissions and misrepresentations were set out in Intervenor's pre-filed statement of the issues.
1. GPC's failure to accurately state the corporate organization ,
i The first concerns GPC's failure to accurately state the l corporate organization in chapter 1 of the 1988 amendments to ! plant vogtle's FSAR. FSAR 1.4.1.2 is headed " Description of Corporate i 172
j-l i l Organization." Pursuant to this section of the FSAR, GPC is , i required to set forth the description of the corporate i
6 i organization of the licensed operator of plant Vogtle. The ;
t , description of the corporate organization set out in the FSAR 4 reads as follows: The GPC is a public utility incorporated under the Laws 4 of the State of Georgia with its principal offices j 4 located at 333 Piedmont Street, Atlanta Georgia. GPC : is a wholly-owned subsidiary of The Southern Company. ! 10 C.F.R. S 50.34 (b) (6) requires that an FSAR be submitted by the licensee. Georgia Power is required to address in the !
plant Vogtle FSAR information concerning "(i) The applicant's ;
i
j organizational structure, allocations or responsibilities and ,
{ authorities, and personnel qualifications requirements." Id. ! 1' Pursuant to 10 C.F.R. S 50.71(e), the. licensee must update its ! { FSAR. The FSAR represents an essential safety document. f i plant Vogtle's FSAR at 13.1.1-16 states: i i The corporate organization, which provides the line responsibility for the operation of the VEGP, is shown in , j figure 13.1.1-1. The ultimate responsibility... rests with ! j the chairman and CEO, who assigns responsibilities to the ! various organizations as described-in paragraph 13.1.1.2. Figure 13.1.1-1 identified at 13.1.1-16 depicts the 3 following reporting relationship: Senior Vice President j (Hairston), reporting to Executive Vice President (Mcdonald), , i
} reporting to Chairman and CEO (Scherer). {
i l
! Georgia Power failure to accurately state the organizational
$ structure in the 1988 amendments to chapter 13 of plant Vogtle's FSAR. On March 28, 1990 GPC filed an amendment to the plant Vogtle 173 i I
l > I d L o ; FSAR' revising Figure'13.1.1-1. Egg JE 15. Figure 13.1.1-1 l indicates that Mr. Mcdonald reports to Mr. Dahlberg. The Vice President of Technical Services and the Vice. President of- j Administrative Services are depicted as reporting to Mr. Mcdonald. and then to Mr. Dahlberg. Georgia' Power failed.to accurately. state the organizational structure when filing the March 28, ,1990 l FASR amendment. On March 28, 1991, GPC filed an' amendment to Chapter 13 of
its FSAR asserting that the Executive Vice President-Nuclear reports to GPC's CEO and President with respect to all matters !
t concerning budaet and nersonnel and that Southern Nuclear matters f are currently limited to operational support activities. JE 20, ] l FSAR at 13.1.1.2.1.1. Georgia Power falsely asserted:in its March 28, 1991 amendment to chapter 13 of plant Vogtle's FSAR , that Georgia Power's CEO retained control over matters pertaining to GPC's nuclear' budget and personnel, i The March 1991 FSAR Amendment of Figure 13.1.1-1 continued j to denote that the Executive Vice President-Nuclear (Mcdonald) ] i l reported to the President and CEO of Southern Nuclear (Farley) i l with respect to Southern Nuclear matters only and reported to GPC's CEO and President on matters pertaining to GPC. In this filing Georgia Power continued to falsely assert that Mcdonald reported to Dahlberg. I Georgia Power also failed to accurately represent its. t corporate reporting structure in numerous meetings with the NRC. Between December 19-21, 1988, NRC conducted an announced 174
i l l l inspection of GPC's Birmingham, Alabama corporate offices. Mr. 1 Rogge, Senior Resident Inspector, plant Vogtle, participated in the inspection. A meeting was held between NRC and GPC, APC and SCS personnel to specifically discuss " nuclear plant oversight responsibilities, technical support responsibilities, and i activities of the corporate organization." During the course of the inspection GPC presented handouts to NRC. The handout and discussion failed to identify Mr. Farley. The inspection report
states that the " corporate organization which is referred to as I the SONOPCO Project is headed by the Executive Vice President."
JE 11, Inspection Report at p. 3. Mr. Farley's involvement with the SONOPCO project and the reporting relationship between Mr. Farley and Mr. Mcdonald was excluded, as was the fact that Mr. Farley headed up the SONOPCO project at the time of the inspection. GPC states on page 5 of Attachment 1 to GPC's Response to Intervenor's 2.206 Petition: On July 25, 1989, GPC and SCSI personnel met with NRC personnel to discuss the Southern Ndclear/GPC organizations and generic activities. An overview of the then-current organizational status was provided to NRC, including corporate structure, responsibilities and interface with the plants. The meeting was attended by NRC resident inspectors, including Mr. Rogge. On August 3, 1989, NRC issued a summary of the meeting. Eeg JE 14. As demonstrated in JE 14, the corporate structure and responsibilities outlined during the July 25, 1989 meeting were false and misleading by omission. Mr. Farley did not attend the meeting and the organization presented excluded 175
l . J l Mr. Farley's involvement and otherwise did not include an organizational chart depicting the reporting relationships above i Mr. McCoy and Mr. Beckham, the plant Vice Presidents. I. OMITTING FACTS PERTAINING TO ACTUAL CONFIGURATION AND OPERATION OF PLANT VOGTLE WHEN FILING THE REQUEST TO AMEND l THE PLANT VOGTLE NUCLEAR OPERATING LICENSE. I On September 4, 1992 Georgia Power Company submitted its Application to amend its operating license for plant Vogtle to a the NRC. In this application GPC stated that " [t] he purpose of incorporating Southern Nuclear was to establish an organization which would consolidate personnel within the Southern electric system..." Application to Amend Facility Operating License Nos. - NPF-68 and NPF-81. Georgia Power further stated in this application: In January 1991, Southern Nuclear, under Georgia Power Company direction and approval, began to provide i nuclear support services, technical services, and ! administrative services associated with Georgia Power Company's operation of VEGP. Id. The application also stated that at the same time Southern Nuclear " began to provide nuclear support services, technical services, and administrative services" to plants Hatch and j
! Farley. This application once again contained the same Id.
omissions and false statements as had previously been filed by ! Georgia Power to the NRC. VI. CONCLUSIONS OF LAW Based on the foregoing Findings of Fact and upon consideration of the entire evidentiary record in this proceeding, the Board makes the following conclusions of law, 176
2. Within fifteen (15) days after service of this Partial Initial Decision, a petition for review may_be filed with the I
Commission on the grounds specified in S 2.786 (b) (4) . A petition for review is mandatory for a party to' exhaust its administrative i remedies before seeking judicial review. Any~other party to the - E
- proceeding may, within ten (10) . days after service of.a petition >
for review, file an answer supporting or opposing Commission-review. Respectfully submitted, ! Michael D. Kohn' Stephen M. Kohn Mary Jane Wilmoth 1 KOHN,-KOHN AND COLAPINTO, P.C. 517 Florida Ave., N.W. . Washington, D.C. 20001' (202) 234-4663 Attorneys for Intervenor Dated: February 24, 1995 i
~
I-0 178
4 l l 1 a 1989 DAHLBERG APPOINTMENT CALENDAR 4 1 Mcdonald Hairston Dahlke Hodges Hemby Baker Jobe Evans Farley
& McCoy l 1-31 0 2-9 6-23 1-18 1-9 1-9 1-11 1-31 1
3-21 6 7-12 2-22 1-9 1-9 1-24 2-8 I 8-10 7-13 8-10 5-30 1-17 1 1-26 5-5 i 11-10 8-28 8-23 6-26 1-18 2-6 1-31 6-19 4 i- 1
9-22 8-16 6-30 1-31 2-14 2-8 10-3 l 9-27 8-25 9-22 1-31 2-20 2-16 a
i
; 9-27 9-27 2-14 2-24 2 l l- 11-2 11-1 2-23 3-3 2-21 j 12-9 12-14 3-8 4-3 2-28 l
) 3-10 4-18 3-3 3-14 4-18 3-13 l 4-3 5-5 3-14 a 4-18 5-9 4-20 4-28 5-9 5-3 l 5-5 6-2 5-9 f 5-9 6-2 5-12 4 6-9 7-27 5-13 ! ) 6-23 8-3 5-17 6-28 8-10 5-23 { 4 } 6-30 11-2 6-1
6-30 11-20 6-8 l
3 7-28 12-1 6-23 - i y 10-2 6-23 I 6-26 3 i I An.~m A
i 6-26 6-29 a 7-13 7-21 l 7-27 8-10 .i B-17 l i i 8-24 ! l l 8-24 l l h 8-25 i. 9-21 9-27 1 10-13 l 2 10-13 4 , 10-17 10-25 10-26 11-1 , 11-1 11-9 11-15 11-30 12-7 J Total: Total: Total: Total: Total: Total: Total: Total: Total: 4 0 9 6 9 23 22 47 5 C:\ FILES \301\ CHART.2
4 i- ! i ! NUCLEAR OVERSIGHT COMMITTEE MEETINGS -! l i Nay - December 1988 (minutes betwee January and April not produced) { 4 i l . Mtg.# Date Location Attendees l lith '5-23 Atlanta S - M - l 12th 7-21 Atlanta S D M H 13th 10-12 Hatch S D- M H 14th 11-29 Atlanta S D M H f 1989 (Farley added to Emergency Plan 6-89) l 15th 3-15 Atlanta S D M- H l 16th 4-27 Vogtle S D M H ! 17th 5-17 Atlanta S D M - I 18th 7-24 Hatch F - M H 1990 i i 19th 1-30 Vogtle F- D - - 20th 4-18 Atlanta - D M - 1 1 21st 7-31 Hatch F D M H ,
.I 1991 )
22nd 1-29 Vogtle F D M H 23rd 7-30 Hatch F D M H 1992 (Farley retiers May 1992) 24th 3-27 Vogtle - D - H 25th 8-20 Hatch - D M - j l 1993 26th 3-3 Vogtle - D M, H l 27th 10-29 Hatch - D - - l 1994 28th 3-30 Vogtle - - - H l i 29th 10-13 Hatch - - - H F = Farley S = Scherer D = Dahlberg M = Mcdonald H = Hairston C:\ FILES \301\ CHART.A Arreuux B l
DOCKETED
~
February 24))Ei99'5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 35 FEB 27. A10 :10 ATOMIC SAFETY AND LICENSING BOARD <
) 0FFICL Of SECRE TARY In the Matter of ) CXETHiG 6 S!RVICE N ) Docket Nos. 50-424-OII1Y GEORGIA POWER COMPANY ) 50-425-OLA-3 .
SL PL., ) p
) Re: License Amendment !
(Vogtle Electric Generating ) (transfer to Southern Nuclear) [ Plant, Unit 1 and Unit 2) )
) ASLBP No. 93-671-01-OLA-3 .G.EAXIll.CAIE._.97__HBXIG ?
I hereby certify thatt the document entitled "Intervenor's !
' Phase I' Findings of Fact and Conclusions of Law" has been f served this February 24, 1995, by hand delivery on the persons listed in the attached service list (except that it was served by j "*").
first class mail as indicated by i l M1]S?Wl Y97th Maty Jfge Wilmoth ' " KOHN,/KOHN & COLAPINTO, P.C :' 517 Florida Ave., N.W. ' Washington, D.C. 20001 ' (202) 234-4663 e 9 1 i i l 1 l l I
l l 00CKETED' ! USHF' -! UNITED STATES OF AMERICA ] NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD;.'95 L FEB 27 N0.:09 i In the Matter of -Of M j;} W 'f[
) Docket Nos'. 50 N4 bLA'.3 - ci ' GEORGIA POWER COMPANY -) 50-425-OLA 21 AL., ) . ) Re: License Amendment l (Vogtle Electric Generating )- (transfer to Southern Nuclear) ,j Plant, Unit 1 and Unit 2) ). i ) .ASLBP No. 93-671-01-OLA l SERVICE LIST i
Administrative Judge j Administrative Judge Peter B. Bloch, Chair James H. Carpenter > l Atomic Safety and Licensing Board 933 Green Point Drive ;
.U.S. Nuclear Regulatory Commission Oyster Point- !
Washington, D.C. 20555 Sunset Beach, NC 28468 i
)
Administrative Judge- CharlesLA. Barth, Esq. .. Thomas D. Murphy Office.of General Counsel ~ ! Atomic Safety and Licensing Board U.S. N.R.C' l U.S. Nuclear Regulatory Commission Washington,.D.C. 20555 f Washington, D.C.~ 20555 ;
. 1 Ernest L. Blake, Jr. t 1 David R. Lewis I
SHAW, PITTMAN, POTTS & -j TROWBRIDGE 2300 N Street, N.W. Washington, D.C. 20037 ; office of the Secretary Aten: Docketing and Service U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C. 20555 C:\ FILES \301\ CERT.LIS , I I l l l
recognizing that certain of the conclusions may be. subject to i i change based on the record of the remainder of the_ hearing. ! l
1. Georgia Power Company transferred control of the operating licenses for plant Vogtle without the prior approval of the Nuclear' Regulatory Commission.

2. Georgia Power Company has made material false statements and omissions to the Nuclear Regulatory Commission with respect to representations made to the Agency which were_not i i
relevant to license transfer.
3. Georgia Power Company has materially misled the Nuclear Regularity Commission regarding the transfer of control over the' i plant Vogtle operating licenses.
l
4. There is substantial basis for concluding at this time 1
that Southern Nuclear lacks the character and competence ' l necessary to operate plant Vogtle in conformity with the NRC's rules and regulations and consistent with protection of the public health and safety. ORDER For all the foregoing reasons, it is this day of I 1 l j , 1995, ORDERED, in accordance with 10 C.F.R. SS 2.760 and 2.786:
1. That this Partial initial Decision will constitute, with respect to the matters resolved herein, the final action of the Commission forty days after issuance hereof, unless an appeal l is taken in accordance with S 2.786 or the Commission directs l
l that the record be certified to it for final decision. l 177 1 !}}

ML20080M315

Text

Navigation menu

Search