ML20126F661

NRC Staff Response to AL Mosbaugh Amend to Petition to Intervene & Request for Hearing & Contingent Motion to Defer Staff Reply to Contentions & Rulings on Contentions.* W/Certificate of Svc

ML20126F661
Person / Time
Site:	Vogtle
Issue date:	12/30/1992
From:	Barth C NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#492-13504 96-671-01-OLA-3, 96-671-1-OLA-3, OLA-3, NUDOCS 9212310044
Download: ML20126F661 (12)

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'92 DEC 30 P4 :04 i UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION - .

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[ IlEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

l . ) Docket Nos. 50-424-OLA-3

! GEORGIA POWER COMPANY, c.t al. ) 50-425-OLA-3 i )

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(Vogtle Electric Generating Plant ) Re: Licensee Amendment (Transfe l' Units 1 and 2) ) to Southern Nuclear) 4 )

l ) ASLBP No. 96-671-01-OI.A-3 i i

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NRC STAFF RESPONSE TO ALLEN L. MOSBAUGH'S AMENDMENTS TO PETITION TO INTERVENE AND REQUEST FOR HEARING AND i CONTINGENT MOTION TO DEFER THE STAFF'S REPLY TO CONTENTIONS

' AND RULINGS ON CONTENTIONE ,

INTRODUCTION i

j The NRC Staff responds to Allen L. Mosbaugh's " Amendments to Petition to i

j Intervene and Request for Hearing," filed December 9,1992. Mr. Mosbaugh's petition should be dismissed because of his failure to show standing, i.e. injury in fact, and his j

l failure to timely serve the Amendments.3 Further, should the' petition not be dismissed for those reasons, the Staff for reasons discussed below moves to temporarily defer the-l 4

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Although the " Amendments" are purportedly submitted - by both -

Allen L. Mosbaugh and Manin.B. Hobby, Mr. Hobby has been dismissed from this proceeding for lack of standing. LBP-92-32 at 10. No permission was given to Mr. Hobby to file contention or an amended petition. Id. No appeal was take' from this

determination. Mr. Hobby is no longer a party to this proceeding, and M. ,amission -

! of the amended petition cannot be~ considered.

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l Staff's reply to contentions and a ruling by the Board on contentions, until the Staff is able to state a position on those matters.

BACKGROUND On October 22,1992, Allen L. Mosbaugh and Marvin B. Hobby filed a Petition to Intervene and Request for Hearing (Petition) in connection with Georgia Power Company's (Licensee) September 18,1992 request for an order and license amendment which would transfer operating control of the Vogtle facility to Southern Nuclear Operating Company, Inc. (Southern Nuclear). Dat request was noticed in the Federal Register. 57 Fed. Reg. 47127,47135, October 14, 1992.

The Licensee responded in opposition to the Petition,2 as did the NRC staff.3 These responses challenged the standing of Messrs. Mosbaugh and Hobby to intervene and both assened that the petition did not meet the substantive pleading requirements of 10 C.F.R. 6 2.714. Staff Response 6, Licensee Answer 6.

The Licensing Board issued its Memorandum and Order (Pre-hearing Conference; Filing Schedule), LBP-92-32, on November 17, 1992 -(Order). The Board denied standing to Marvin B. Hobby (Order 3 and 4). With regard to Mr. Mosbaugh, the Board withheld a decision as to his standing, offering him the opportunity to amend his Petition 2 Georgia Power Company's Answer To The October 22, 1992 Petition Of Allen L. Mosbaugh And Marvin B. Hobby To Intervene In A License Amendment Proceeding, dated November 6,1992 (Licensee Answer).

3 NRC Staff Response In Opposition To Petition To Intervene Filed By Allen L. Mosbaugh And Marvin B. Hobby, dated November 2,1992 (Staff Response).

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- to Inte vene to cure its deficiencies (Order 5) and to set forth' contentions meeting; 4

Commission regulations. Order at 7.

1 That Order, in part, provided that service of this amended petition and contentions shall be " express mailed by December 9,1992."' Footnotr 8 stated: " Service may be j executed by overnight mail service or by FAX , . . . In lieu of overnight service, parties may serve documents first-class mail, postmarked four days earlier," Mr. Mosbaugh's certificate of service states that he served this document on the Staff, a party to the proceeding, by first-class mail on December 10, 1992.4 DISCUSSION

1. The Petition Herein Should Be Dismissed For Failure To Make Service ha The -

Time Provided By The Board The petition to intervene of Allen L. Mosbaugh should be dismissed for failure to serve the Staffin the time prescribed in Board Order LBP-92-32. The Staffis a party _

to this proceeding. 10 C.F.R. 6 2.701h). As shown in the certJficate of service, the Staff was served by first class mail on December 10,1992 By the terms of LBP-92-32, that service should have been made on December 5,1992.

The subject amended petition should be dismissed, as it was not served as provided in LBP-92-32. -

j d The envelope, which is attached nereto, bears a date of December 11, 1992.

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11. hir. hiosbaugh Does Not Show He Could Sustain Injury In Fact From The Proposed Amendment And Thus Does Not Show Standing The Licensing Board's Order states that "htr. hiosbaugh will have the difficult task of demonstrating . . . [that] the transfer of operations . . . would cause an increased risk to this health and safety . . . Petitioner must show that he has a basis to believe that if we prohibit the change he will be better off -- presumably because the new arrangement is less safe than the existing one." Order 5-6 (emphasis in original, footnote omitted). In this connection, the Board emphasized that to establish standing, hir.

hiosbaugh must show that the remedy sought will a'oate the alleged harm. Order at 7.5 hir. hiosbaugh does not set forth any increased risk to his health and safety which could reasonably be expected to occur as a consequence of the change, i.e. the transfer 5

The underlying principal was stated by the Supreme Court in Lujan v. Defenders of Wildlife, U.S. _,112 S. Ct. 2130, 2136 (1992) where it stated:

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements: First, the -

plaintiff must have suffered an " injury in fact" -- an invasion of a legally-

< protected interest which is (a) concrete and particularized, see / Allen v.

Wright, 468 U.S. 737, 756 (1984)]; Warth v. Scldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton,405 U.S. 727,740-741, n.16 (1972);

and (b) " actual or imminent, not ' conjectural' or ' hypothetical,'" Whitmore

[v. Arkansas, 495 U.S.149), at 135 (1990) (quoting Los Angeles v. Lyons, 461 U.S. 95,102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be

" fairly . . . trace [able] to the challenged action of the defendant, and not

. . . th[e] result (of] the independent action of some third party not before the court." Simon v. Eastern Kentucky Welfare Rights Org.,426 U.S. 36, 41-42 (1976). Third, it must be "likely," as opposed to merely

" speculative," that the injury will be " redressed by a favorable decision."

Id., at 38,43 [footr.ote omitted).

Accord Lujan v. National Wildhfe Federation, 497 U.S. 871 (1990).

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of operation of the Vogtle facilities from the Georgia Power Company to Southern Nuclear Operating Company, both of which are subsidiaries of the Southern Company.'

Mr. Mosbaugh, although questioning the character of the persons who would be in charge

of Vogtle, does not show or allege that the individuals are any different from those now l in charge 7 Mr. Mosbaugh has not set forth any new, different or increased risk to which he could be subjected as a result of NRC approving the license amendment.

Reduced to its most simple and direct formulation, in the circumstances of this  ;

proceeding, Mr. Mosbaugh must set forth a cogent scenario under which a change of the l

.l operator of Vogtle from one subsidiary of the Southern Company could cause adverse j health and safety consequences to Mr. Mosbaugh. The Petition andlts Amendments not

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only fail to set forth such a scenario, but also make no effort to do so. Nowhere does Mr. Mosbaugh allege, even in the most general terms, what specific, increased harm or risk there will be to his health and safety if the proposed license amendment is tpproved by the NRC. Lacking a showing that the approval of the requested license amendment transferring operating control from Georgia Power Company to the Southern Nuclear

• Mosbaugh Amendments at 3 states that "the uniting issue behind these four i

contentions is whether the transfer of responsibility from.the current licensees to the newly created . . . Southern Nuckar Operating Company, Inc., increases the risk of the possibility of an accident , , ." Emphasis supplied. However, Petitioner fails to

. address how this change increases this risk, as required by the Board.

7 Mr. Mosbaugh argues persuasively against his own case. The thrust of his Petition is that transfer of control of operation of the Vogtle facility from Georgia Power Company to the Southern Nuclear Operating Company will (or could) cause him injury.

On page 5 of his Amendments Mr..Mosbaugh states that this transfer of control took place "[B]y October 1988" and thus any injury which could result from the change in the name of the operator did take place prior to October 1988 and will not take place if the license amendment under consideration is issued by the NRC.

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Operating Company would cause him injury in fact, Mr. Mosbaugh must be denied standing to intervene.'

Ill. The Staff Cannot Reply To The Contentions For the reasons set forth in the following Motion, the Staff cannot, at this time, state a position on, or reply to, the proffered contentions.

MOTION Should the petition of Allen L. Mosbaugh not be dismissed for the reasons set out above, the Staff moves that the Staff's reply to the contentions and that rulings thereon

' Mr. Mosbaugh alleges, as grounds for standing, that he resides within 50 miles of the Vogtle Facility. Petition at 3. The Licensees' Answer raised a question as to whether, in fact, Mr. Mosbaugh and his family do reside in Grovetown, Georgia.

Licensee's Answer at 13. The Licensing Board's Order, at 7, required Mr. Mosbaugh to state specifically how much time he resided at the alleged Georgia residence.

Mr. Mosbaugh now states that he resides at this Grovetown, Georgia residence approximately one week each month an'd that he voted in 1992 elections in Georgia.

Amendment at 2.

The Staff does not here question that a significant amount of time in residence in proximity to a nuclear facility can satisfy the requirement that a petit ioner show that could be affected by the operation of the facility, whether or not it is a formal residence.

See, generally, Virginia Electric and Power Co. (North Anna Power Station, Units 1 &

2), ALAB-146, 6 AEC 631, 633-34 (1973); Northern States Power Co. (Pathfinder Atomic Plant) LBP-90-3, 31 NRC 40, 45 (1990). The determination of whether Mr. Mosbaugh resides or spends a substantial amount of time near Vogtle should await the conclusion of the hearing provided forin LBP-92-38, on that issue. However, where the amendment sought could not affect the petitioner, intervention should not be granted, no matter where he resides or spends his time. Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 & 2) CLI-89-21,30 NRC 325,329-330 (1989). Here, as Petitioner cannot be affected by the proposed amendment, the location of his residence or his activities is immaterial to the standing issue.

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be deferred pending the completion of criminal investigations which would enable the Staff to take a position on the matters here sought to be litigated.

f Each of Mr. Mosbaugh's contentions maintains that the proposed transfer for

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which permission is sought in the subject license amendment may not take place because of an alleged lack of " candor, tnithfulness and a willingness to abide by regulatory requirements" of the proposed transferee, Southern Nuclear Operating Company, Inc.

4 As a basis for contentions 2, 3 and 4, Mr. Mosbaugh makes allegations regarding  ;

l material false satements attributed to officers and a related investigation. See Amendments to Petition at 15-16, n.10. These allegations are being pursued by the J

Department of Justice for possible criminal prosecution, and until this investigation is complete the NRC Staffis unable to take a position on the allegations contained in the contentions.'

' The Commission recognized in its Statement ofPolicy; Investigations, inspections and Adjudicatory Proceedings, 49 Fed. Reg. 36032, 36033 (1984), that where there is concern with premature disclosure of investigatory information "it may be possible to provide for the timely consideration of relevant materials derived from investigations and

' It is noted that similar matters are pending before the Director or Nuclear Reactor Regulation in a petition filed by an attorney for Allen L. Mosbaugh under 10 C.F.R.

f 2.206. See Exhibit I to " Georgia Power Company's Answer to the December 9,1992 Amended Petition of Allen L. Mosbaugh," dated December 22,1992. That petition has not been decided. The grant of a 10 C.F.R. 6 2.206 petition is discretionary and is not conclusive as to issues in an adjudicatory proceeding. See Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747,18 .NRC 1167,1175-76 (1983).

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inspections through the deferral or rescheduling of issues for hearing. Here, no showing is made for an immediate need to proceed with this license amendment application which transfers operation of Vogtle from one subsidiary of the Southern i

Corporation to another.

As the Staff cannot, at the present time, take a position on these allegations or reveal pertinent information regarding these matters to other parties, the Staff moves that l

, its time to reply to the contentions and the Board's ruling on the contentions be temporarily deferred until the Staff can take a position on the subject contentions." As soon as it is able to the Staff will take a position on the contentions, so that the Board may continue the proceeding. ,

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80 Compare Loulslana Power & Light Co. (Waterford Steam Electric Station, Unit

3) CLI-81-1, 23 NRC 1, 6-7 (1986), where the Commission ruled, on a motion to reopen, that the contents of an Office ofInvestigation report did not have to be examined by a Commission adjudicatory board, as it was not relevant to any issue in controversy in the proceeding. That case does not seem in point here where allegations of wrongdoing are predicates for some of the contentions the Petitioner seeks to raise as of

right.

" " Georgia Power Company's Answer To The Amended Petition of i Allen L. Mosbaugh," dated December 22,1992, indicates (see, e.g. pp.17, 21, 25-26) that issues concerning the character of the proposed transferee of the Vogtle licenses, the Southern Nuclear Operating Company, may not be within the scope of this proceeding.

Section 182a of the Atomic Energy Act,42 U.S.C. 6 2232(a), provides, inter alia, that the Commission may consider "the character of the applicant" before the grant of a license. Thus, the character of the proposed transferee is pertinent, and could be within the scope of this proceeding, if properly supported contentions on that subject.were submitted by one who could be affected by the transfer. In considering character, past compliance with NRC regulations is relevant. See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), CLI-85-9, 21 NRC 1118,1136-39 (1985); Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), CLI-80-32,12 NRC 281, 291 (1980).

9 CONCLUSION For the reason set out above pertaining to Mr. Mosbaugh's lack of standing and late service of its amended petition, this proceeding should be dismissed. If this proceeding is not dismissed, a ruling on contentions should be deferred until the Staff can take a position on the contentions.

Respectfully submitted, 6,6 4 s/da>( '

Charles A. Barth Counsel for NRC Staff Dated at Rockville, Maryland this 30th day of December,1992

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UNITED STATES OF AhiERICA NUCLEAR REGULATORY COMMISSION $i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

'92 DEC 30 P4 :04 In the 14atter of ) , *7 ."

. ) Docket Nos. 50-424 W ,y GEORGIA POWER COMPANY ) 50-425 et al. ~

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(Vogtle Electric Generating Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO ALLEN L. MOSBAUGH'S AMENDMENTS TO PETITION TO INTERVENE AND REQUEST FOR HEARING AND CONTINGENT MOTION TO DEFERTHE STAFF'S REPLY TO CONTENTIONS AND RULINGS ON CONTENTIONS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, or as indicated by two asterisks by telecopy this 30th day of December,1992.

Peter B. Bloch, Chairman" John I2mberski, Esq.**

Administrative Judge Arthur H. Domby, Esq.

Atomic Safety and Licensi.:g Board Trautman Sanders U.S. Nuclear Regulatory Commission Nationsbank Building, Ste 5200 Washington, D.C. 20555 600 Peachtree Strut, N.E.

(301) 492-7285 Atlanta, Georgia 30308 (404) 885-3949 James H. Carpenter" Administrative Judge David R. Lewis, Esq.**

Atomic Safety and Licensing Board Shaw, Pittman, Potts and Trowbridge U.S. Nuclear Regulatory Commission 2300 N Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20037 (301) 492-7285 (202) 663-8007 Thomas D. Murphy ** Director, Environmental Protection Administrative Judge Division Atomic Safety and Licensing Board Department of Natural Resources U.S. Nuclear Regulatory Commission 205 Butler Street, S.E.

Washington, D.C. 20555 Suite 1252 (301) 492-7285 Atlanta, Georgia 30334

1 1

2-l hiichael D. Kohn, Esq." Adjudicatory File * (2) )

Stephen hi Kohn, Esq. Atomic Safety and Licensing Board Kohn, Kohn and Calapinto, P.C. Panel 517 Florida Ave., NW hiall Stop: EW-439 Washington, DC 20001 U.S. Nuclear Regulatory Commission (202) 462 4145 Washington, DC 20555 Stewart D. Ebneter Atomic Safety and Licensing Board Regional Administrator Panel

• USNRC, Region 11 hiall Stop: EW-439 101 hfarietta St., N.W. U.S. Nuclear Regulatory Commission Suite 2900 Washington, DC 20555 Atlanta, GA 30303 Office of the Secretary * (2)

Office of Commission Appellate Attn: Docketing and Service Adjudication

• hiail Stop: 16-G 15 OWFN hiail Stop: 16-G 15 OWFN U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC . 20555 Washington, DC 20555 Charles A. Barth Counsel for NRC Staff '

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