ML20127D368
| ML20127D368 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 01/12/1993 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#193-13558 OLA, OLA-3, NUDOCS 9301150198 | |
| Download: ML20127D368 (121) | |
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'O OFFICIAL TRANSCRIPT OF PROCEEDINGS Agency:
u.s. Nuclear aesulatory Commission Atomic Safety & Licensing floard EdC GEORGIA POWEh COMPANY, et al, V0GTLE ELECTRIC CENERATING PLANT, UNITS 1 AND 2 Docket No.
50-424-OLA-3 50-425-OLA-3 10 LOCATION:
Augusta, Georgia DATE:
Tuesday, January 12, 1993 PAGES:
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UNITED STATES 2
NUCLEAR REGULATORY COMMISSION 3
4 ATOMIC SAFETY & LICEllSING BOARD 5
6
x 7
In the Matter of:
8 GEORGIA POWER COMPANY, et al Case Nos. 50-424-OLA-3 9
VOGTLE ELECTRIC GENERATING 50-425-OLA-3 10 PLANT, UNITS 1 AND 2 11
x 12 13 Room No. 240 14 State Court Room 15 Law Enforcement Center 16 401 Walton Way 17 Augusta, Georgia 18 19 Tuesday, January 12, 1993 20 21 The above-entitled matter came on for hearing, 22 pursuant to notice, before Peter B.
Bloch, Board Chairman, 23 at 9:00 a.m.
24 25 O
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1 APPEARANCES:
2 3
BOARD MEMBERS PRESENT:
4 5
PETER B.
BLOCll, JUDGE, BOARD CHAIRMAN 6
T110 MAS D. MURPilY, JUDGE 7
JAMES CARPENTER, JUDGE 8
9 ON BEllALF OF Tile LICENSEE:
10 11 ERNEST BLAKE, ESQUIRE 12 DAVID R.
LEWIS, ESQUIRE 13 Shaw, Pittman, Potts & Trowbridge 14 2300 N Street, Northwest I
15 Washington, D.C.
20037 16 17 JOllN LAMBERSKI, ESQUIRE 18 Troutman Sanders 19 Nationsbank Plaza 20 Suite 5200 21 600 Peachtree Street, Northeast 22 Atlanta, Georgia 30308 23 24 25 O
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1 APPEARANCES (continued):
2 3
ON BEllALF OF THE INTERVENOR:
4 5
HICilAEL D. KOllN, ESQUIRE 6
Kohn, Kohn & Colapinto 7
517 Florida Avenue, Northwest 8
Washington, D.C.
20001 9
10 ON BEllALF OF Ti!E GENERAL COUNSEL 11 12 CIIARLES A.
BARTH, ESQUIRE 13 EDWIN REIS, ESQUIRE 14 Office of General Counsel 15 Nuclear Regulatory Commission 16 Washington, D.C.
20555 17 18 CAROLYN EVANS, ESQUIRE 19 Office of Regional Counsel 20 Nuclear Regulatory Commission \\
21 Atlanta, Georgia 30323 22 23 24 25 O
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1 INDEX 2
Witness Direct Cross Hodirect 3
ALLEN MoSBAUGli 13 26/41 50 4
5 6
7 E X 11 I B I T S 8
9 10 11 12 13 14 15 16 17 18 19 20 21 1
22 23 24 25 i.
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PROCEEDINGS 2
(9 00 a.m.)
3 CilAIRMAN BLOCll Good morning.
The Licensing 4
Board resumes its session that it began last night.
Judge 5
Murphy is on my right and Judge Carpenter on my left.
My 6
name in Peter Bloch.
7 Would the parties please identify themselves for 8
the record, starting at my right?
9 MR. BARTil:
Your lionor, I am Charles A. Barth.
10 I'm with the Office of General Counsel, Nuclear Regulatory 11 Commission.
To my immediate right in Mr. Edwin Reis, who is 12 Deputy Chief Ilearing Counsel of the NRC.
Together wo 13 represent the staff in this proceeding.
14 To my immediate left is Mr. Darl liood.
Mr. !!ood 15 is an engineer and our Technical Froject Manager for the 16 Vogtle Project, sir.
Also, I'd like to call attention that 17 we also have present our Regional Counsel fro.a Atlanta, Ms.
18 Evans, who is sitting behind me.
19 MR. BLAKE:
Judge Bloch, my name is Ernie Blake.
20 I'm with the law firm of Shaw, Pittman, Potts & Trowbridge 21 in Washington, D.C.
To my right is Mr. Johr. Lamberski.
Mr.
22 Lamberski is with Troutman Sanders in Atlanta, Georgia.
23 Behind me is Mr. David Lewis, also from Shaw, 24 Pittman in Washington.
The three of us have entered notices 25 of appearance in the proceeding and we represent the O
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applicant or the licensee here, Georgia Power.
2 HR. KolIN:
Good morning, Your Honor.
My name is l
3 Michael Kohn.
I am counsel to Allen Mosbaugh.
Mr. Mosbaugh 4
is seated to my right.
I am of the law firm of Kohn, Kohn &
5 Colapinto out of Washington, D.C.
6 CllAIRMAN BLOCH:
Thank you.
I'd like to welcome 7
everyone to this morning's proceeding.
We have on the 8
agenda, first, a brief evidentiary hearing concerning the 9
extent of the contacts that Mr. Mosbaugh has with the Vogtle 10 plant.
And then, unless we were to decide the case based on 11 that proceeding, which is possible, we will continue with 12 the motion that the staff has filed to defer the 13 consideration of the admission of contentions.
14 At that point, we may have further to go forward 15 on, but we will decide that at that time.
Do the parties 16 have anything -- any comments to make upon this agenda?
17 MR. BARTH:
Your Honor, I would make one for the 18 staff.
I think that under the cases we have cited in our 19 brief, not only is Mr. Mosbaugh's contacts in Georgia 20 relevant to his standing, but I also think the issue of 21 whether or not he has approval as a result of the 22 transaction which is contemplated is also part of the 23 standing, Your Honor.
24 CHAIRMAN BLOCH:
I see that is interrelated, 25 though, with the contentions.
The harm and the O
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admissibility contentions may be interrelated, in my mind.
2 MR. BARTil:
They may well be interrelated, but I j
3 think that to show standing, which is the matter before you 4
get to contentions, you have to show the chain of accident, 5
the sequence of an accident which would be harmed.
We will 6
get to that in good time, I'm certain.
7 CllAIRMAN BLOCll:
Does that mean that the staff is 8
prepared to go forward on discussing the harm, but not the 9
admissibility of contentions?
10 MR. BARTH:
I think we're prepared to ask that Mr.
11 Mosbaugh demonstrate a viable sequence of circumstances by 12 which he could be harmed if this transaction were to take 13 place; that is, the license amendments.
14 CilAIRMAN BLOCH:
Okay.
We can get to that a 15 little bit later.
Mr. Kohn, would you like to call a 16 witness?
17 MR. KOHN:
Yes, Your Honor.
We call Allen 18 Mosbaugh.
19 CHAIRMAN BLOCH:
I'd like to state for the record 20 that I've asked the Reporter to bind the stipulations 21 between Mr. Mosbaugh and the licensee at this point.
22 Whereupon, 23 ALLEN MOSBAUGil, 24 a witness, was called for examination by counsel on behalf l
25 of the Intervonor, and, having been first duly sworn, was i
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examined and testified as follows:
2 CllAIRMAN BLOCll:
Thank you.
You may commence.
3 MR. KOliN:
Thank you, Your lionor.
Your lionor, 4
have the stipulations been accepted?
I know I spoke with 5
Mr. Barth earlier and he indicated that he wanted some 6
questioning before the stipulations were entered.
I'm not 7
sure what the status is of the actual stipulations on the 8
record.
9 CIIAIRMAN BLOCil:
Mr. Barth, are the stipulations 10 acceptable to the staff?
11 MR. DARTil:
No.
12 CilAIRMAN BLOCll:
In what respect are they not?
13 MR. BARTil:
They concern personal knowledge of Mr.
14 Mosbaugh which is beyond our capability to verify or not 15 from our position.
For instance, he says he first got his 16 driver's license in Ohio.
I have no idea where he first got 17 his driver's license.
18 CHAIRMAN BLOCll:
So are you planning in some way 19 to challenge that?
20 MR. BARTH:
I spoke with Mr. Kohn and it could be 21 done several ways.
I think that if Mr. Kohn would show him 22 the stipulation and ask him is it true and correct to the 23 best of his knowledge, so it would be put into evidence 24 under 2.743, that would satisfy that requirement.
25 CIIAIRMAN BLOCll:
So you just would like him to AV ANN RILEY & ASSOCIATES, Ltd.
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state that the stipulations are true and correct to the best 2
of his knowledge and recollection.
3 MR. BART'l:
Under oath.
That would solve the 4
technical legal problem of evidence.
5 Cl! AIRMAN BLOCil:
Okay.
So we could start that 6
way.
7 DIRECT EXAMINATION 8
BY MR. KOllN:
9 Q
Mr. Mosbaugh, I'm going to show you a document 10 that's dated January 6, 1993, on stationery of Kohn, Kohn &
11 Colapinto, consisting of four pages, the last page being an 12 attachment with 20 numbered statements.
13 If you could, review this for the record, please.
14 Cl! AIRMAN BLOCII:
Take as much time as necessary to 15 refresh yourself of what's in it.
16 MR. KOHN:
Your lionor, would you like additional 17 copics?
18 CHAIRMAN BLOCH:
We have copies.
Thank you.
19 Tile WITNESS:
I guess I really don't have 20 knowledge of No.
6, if that's correct or not, but --
21 CHAIRMAN BLOCH:
Okay.
I understand that that 22 stipulation was entered into because of information 23 collected by the licensee and applicant.
24 Does staff have any problem with No. 6?
2E MR. BARTH:
We have no problem, Your Honor, and no O
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objection.
2 Cl! AIRMAN BI4Cil Okay.
Are there any other --
3 Tile WITNESS:
Except for six, everything here is 1
4 correct, to the best of my knowledge.
5 CilAIRMAN BIECil:
The stipulations are accepted for 6
the record.
7 MR. KOllN:
Thank you, Your Honor.
8 MR. BARTil:
Your lionor, may I make a very quick 9
comment?
There were two January 6, 1993 letters from Kohn 10 to Mr. Lamberski, and the second one is the final one.
I 11 hope that these people have verified this is tl.e second, 12 because they have the same date and they're almost identical 13 in appearance.
O 14 CIIAIRMAN DIDCil:
The one I have is dated January 15 7.
16 MR. LAMBERSKI:
Your lionor, I think that's the 17 letter from me.
18 Cl! AIRMAN BIECH:
It's a letter transmitting it.
19 January 6.
20 MR. KOllN:
Your Honor, the opening paragraph 21 states " Set out below are the final stipulations of fact we 22 have reached.
Please review them for accuracy.
Assuming 23 they are acceptable, I request that you file them with the 24 Licensing Board and NRC staff counsel."
25 The January 6 letter that begins with that O
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paragraph from myself to Mr. Lamberski is the final 2
stipulations that we reached.
3 CllAIRMAN BLOCill I have just verified that that is 4
the copy that I've handed to the Reporter.
5 MR. KOi!N:
Thank you, Your Honor.
6 DIRECT EXAMINATION 7
BY MR. KOliN t 8
Q Mr. Mosbaugh, I have some additional questions I'd 9
like to ask.
Do you maintain a residence within 50 miles of 10 Plant Vogtle?
11 A
Yes, I do.
I have my residence at 1701 Kings 12 Court, Grovetown.
i 13 Q
And how long have you maintained this residence?
14 A
For a little more than eight years, I believe.
15 Q
liow did you come to acquire your Grovetown, 16 Georgia residence?
17 A
I believe in late 1984-85, approximately, I 18 purchased a lot in the Lake Royal subdivision and then I 19 proceeded to build a house, my residence, on that lot.
20 Q
What is the size of the lot?
l 21 A
It's about a two-and-a-half acre lot.
22 0
And did you personally construct your residence on 23 that property?
24 A
- Yes, I did a lot of the construction myself.
I 25 even felled the trees and cleared the lot, and I acted as O
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1 general contractor for the house.
I also acted as specific 2
subcontractor for all those kinds of things that I'm skilled 3
to do myself.
So, yes, I did a lot of it with my own hands.
4 Q
Does your Grovetown, Georgia home hold any special 5
significance to you?
6 A
Well, it's -- yes.
Because I built it myself, I 7
have kind of special pride in it.
Whenever you do something a
with your own hands and are intimately involved, I think you 9
cherish it more.
10 Q
What do you consider to be your primary residence?
11 A
My residence at 1701 Kings Court in Grovetown.
12 Q
can you state who your last employer was?
13 A
My last employer --
14 Q
Other than yourself.
15 A
-- that I worked for and got a paycheck from i
16 somebody was the Georgia Power Company and I was employed t
17 with them up through the fall of 1990.
18 Q
From the time you constructed your home in 19 Grovetown until you left your employment with Georgia Power 20 company, can you explain how often you physically resided in 21 your residence or that area?
22-A Well, until the time that I was ~~ from the time I 23 built the house to the time that I was terminated from 24 Georgia Power, I probably resided there most all the time, 25 maybe 95 percent of the time.
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Q And after your termination from Georgia Power 2
company, did there come a time when you spent less 1.ime at 3
your Grovetown residence?
4 A
Yes.
5 Q
Is there a particular date that occurred?
6 A
Yes.
I continued residing there most all the time 7
until about August of 1991.
8 Q
Is there anything that occurred in August of 1991 9
which affected your decision or your ability to remain in 10 the Grovetown residence full time?
11 A
Yes.
Earlier in the year, my wife's father health 12 had deteriorated.
He had some coronary problems and later 13 developed some prostate problems and he was eventually 14 diagnosed of having cancer of the prostate.
15 And my wife is very close to her father and she 16 very much so wanted to go back and be near him in Ohio.
In 17 fact, she would tell me that if anything ever happened to 18 her dad and she wasn't there, it would kill her.
19 So we made a decision at that time to relocate 20 back to our farm that we've had in the Cincinnati area.
21 Q
'what profession does your wife have?
22 A
She's a registered nurse.
23 Q
And was there any -- did she assist in --
24 A
Yes.
She didn't -- she wasn't employed an a 25 caretaker for him.
I'm not sure that's ethical within the O
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1 medical profession.
But, yes.
She took care of him in a 2
non-official manner.
In fact, she would visit him every day 3
until he died just recently.
4 Q
What month did he die?
5 A
He died in December.
6 Q
Of?
7 A
Of 1992.
8 Q
Now, from August of 1991 until December of 1992, 9
can you state what your -- how much time you have spent at 10 your -- what you consider to be your primary residence?
11 A
- Yes, of course, I continued to maintain our 12 residence in Grovetown and I'm at that residence for 13 approximately one week every month and have done that --
14 been there at that frequency since August of 1991.
15 Q
Have any of your other family members during this 16 period of time occupied that residence, as well?
17 A
- Yes, My wife and my entire family on numerous 18 occasions come back down to our Grovetown residence.
My 19 children particularly like to come back and I think they 20 miss it.
21 Q
Do you personally maintain your Grovetown 22 residence?
23 A
Yes, I do.
I cut the grass and sweep the pine 24 straw off the driveway and do yard work, do routine 25 maintenance as a homeowner.
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Q Have you ever hired or employed anyone to do --
2 A
No.
I --
3 Q
-- the maintenance of your property?
i 4
A No.
I do it all myself.
I don't use anybody 5
employed or use any neighbors or anything like that.
6 Q
Cir.ce your termination from Georgia Power Company, i
7 have you been employed in the Grovetown area?
8 A
Not for an employer.
I'm doing work myself on the 9
residence.
I'm doing some construction work and some 10 renovation, refinishing and remodeling work on the house.
I 11 put in a -- poured a concrete driveway for it, finishing the 12 attic.
It has a third floor on it which was never finished 13 and I'm finishing that into a living area, and I'm also 14 doing some interior trim and decoration, molding kind of 15 work.
16 Q
Has this work been continuous since August of 17 1991?
18 A
Yes.
19 Q
And are you continuing to do that as of today?
20 A
That's part of my reason for being in town.
21 Q
Have you ever considered selling your Grovetown 22 residence?
23 A
No.
24 Q
Have you ever leased or rented any of your 25 property or your home in Grovetown?
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A No.
i 2
Q And can you state in whdt location you have 3
resided for the longest period of time?
4 A
I've lived --
5 0
As your primary residence.
6 A
Except for when I lived with my parents, up to the 7
time I was 21, except for then, I've lived the longest and
)
8 resided the longest in my Grovetown, 1701 Kings Court 9
residence.
10 Q
Are you currently seeking employment within the 11 Grovetown area?
12 A
I have been trying to get employment in the 13 Augusta, greater Augusta area.
There 's many jobs, 14 hopefully, available at the Savannah River facility, and 15 more recently I've attempted to see what might be available 16 in the chemical process industry, since I have a degree in 17 chemical engineering.
18 Q
And has the Augusta area been the primary area in 19 which you are continuing to search for employment?
20 A
It's one of the primary areas.
I'd say I think 21 that my prospects are best in the Augusta area.
22 Q
Since your -- prior to -- let me rephrase that.
23 When did you, to the best of your recollection, start 24 banking in the Augusta area?
25 A
I initiated a bank account in the Augusta area O
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probably in 1984 when I first came.
2 Q
And since 1984 to present, have you changed your 3
bank or anything in this area?
4 A
No.
I started a checking account in 1984 at 5
Bankers First and that still is my checking account.
6 Q
Since your termination from Plant Vogtle, have you 7
established any new bank accounts?
8 A
No.
9 Q
And what is your primary banking location?
10 A
The only checking account I have is with Bankers 11 First here in the Augusta area.
12 Q
While in the Grovetown, Georgia area, have you 13 ever had the occasion to meet with Nuclear Regulatory 14 Commission investigators from the Office of Investigation?
15 A
Numerous times.
16 Q
And where did these meetings occur?
\\
17 A
They've either occurred at my residence or in 18 another location in the Augusta area.
19 Q
And can you state approximately how often -- well, 20 first, can you give us a timeframe in which these meetings 21 began?
22 A
They began in the summer of 1990 and have 23 continued there since.
24 Q
And can you give an approximate number of meetings 25 you have had with NRC OI investigators in the Augusta area?
O ANN RlLEY & ASSOCIATES, Ltd.
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1 A
More than a dozen.
2 Q
And do you recall the last time you met with NRC 3
OI at your Grovetown residence?
4 A
Yes.
It was November of 1992, two months ago.
5 Q
Are you under the belief that additional meetings 6
will be scheduled between you and NRC OI in the Augusta 7
area?
5 A
Yes.
9 Q
Have you ever considered Clermont County, Ohio to 10 be your only residence?
11 A
No.
Let me qualify that.
12 Q
Let me rephrase the question.
Prior to residing 13 in Grovetown, Georgia, have you ever considered Clermont 14 County, Ohio to be your only residence?
15 A
Yes, prior to moving to Georgia.
But after moving 16 to Georgia, no.
17 Q
Before -- you testified earlier that you came to 18 work, I believe, at Plant Vogtle in 1984.
19 A
Yes.
20 Q
And at that -- in 1984, where were you registered 21 to vote?
22 A
In 1984, I was registered to vote in Clermont 23 County, Ohio.
24 Q
And from 1984 until sometime in 1988, did you 25 continue to be registered to vote in Clermont County, Ohio?
O ANN RlLEY & ASSOCIATES, Ltd.
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1 A
Yes, I was.
Until 1988, I was registered to vote 2
in Clermont County, Ohio.
3 Q
And in 1988, did you change your voting 4
registration location?
5 A
Yes, I did.
That was the year of an upcoming 6
Presidential election and I changed my registration to 7
Columbia-County in Georgia.
8 Q
And did you ever again change your registration, 9
voter registration location?
10 A
Yes, I did.
In 1992, there was an upcoming f
11 Presidential election and I changed my voter registration to 12 Clermont County, Ohio.
13 Q
And was there any reason you decided to change it 14 to Ohio at that point?
15 A
Yes, there was.
I felt very strongly about the 16 Presidential election and wanted to change the direction our 17 country was going and I--- there's a saying_in Ohio, maybe 18 every state has such a saying, that as goes Ohio, so goes 19 the nation, is the saying.
20 And I felt my vote would be most valuable if cast 21 in the State of Ohio.
22 Q
After the general elections, did you change your 23 voter registration again?
24 A
Yes, I did.
At the end of the year, I re-25 registered in Columbia County, Georgia.
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Coud Reponers 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
24 l
1 Q
In August of 1991, when your wife's father was 2
ill, was there -- and you -- and your wife and family were 3
moving to spend more time in Ohio, was there a change of 4
address form filed with the Post Office?
5 A
Yes.
My wife initiated change of address at that 6
time.
7 Q
Did you personally file any change of address form 8
at that time?
9 A
No, I didn't.
My wife handled that.
10 Q
And at that time, did you desire to terminate your 11 Georgia mailing address?
12 A
Well, actually, I didn't 17r myself, and I guess 13 that's the answer to the question.
But it was terminated -
14
-I believe it was terminated for the family.
15 Q
And did you ever subsequently learn different 16 procedures at the Post Office?
17 A
Yes.
Recently I saw a card that was associated 18 with the packet, with change of address, and it had a thing 19 called individual, individual address or something like that 20 on it.
And I inquired at the Post Office about that and 21 they explained to me that you could have an address -- mail 22 just for one individual and that's what this individual 23 thing was.
24 And so after having found out about that, I 25 reinitiated an individual mailing address for myself at my O
ANN RILEY & ASSOCIATES, Ltd.
Coud Repoders 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
25 t
1 Grovetown residence.
2 Q-
.And prior to that time, did you know any -- that 3
there was a difference between a family address and an 4
individual --
5 A
No.
I didn't know any of the details of the 6
process.
7 Q
Mr. Mosbaugh, to the best of your recollection, 8
when did -- I'll refer to them interchang ably, sometimes as 9
Sonopco, sometimes as Southern Nuclear -- but when did that 10 entity come into being from your perspective as Assistant 11 Plant Manager at Plant Vogtle?
12 CHAIRMAN BLOCH:
Mr. Kohn, we're still working on 13 residence.
14 MR. KOHN:
I think this is more addressing the 15 issue that Mr. Barth had raised earlier regarding the --
16 CHAIRMAN BLOCH:
The only evidentiary hearing 17 we're having today has to do with residence, contacts with 18 the plant.
19 MR. KOHN:
Your Honor, I think that is on the 20 actual residence questions, in addition -- the additional 21 information we wanted to present to the Board.
22 MR. BARTH:
We object to the question, Your Honor, 23 on two grounds.
One is --
24 CHAIRMAN BLOCH:
He's not asking it.
25 MR. KOHN:
Thank both of you.
l ()
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Coud Reponers 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
.m
.. _. _. - ~. _ _ _..
t 26 1-CHAIRMAN BLOCH:
The Witness is available for.
-2 examination.
Which should it be; by licensee first or by 3
the staff?
4 MR. BLAKE:'
I'm prepared to go forward now.
5 CROSS EXAMINATION 6
BY MR. BLAKE:
7 Q
Good morning, Mr. Mosbaugh.
8 A
Good morning.
9 Q
Mr. Mosbaugh, I want to show you two documents.
10 One is entitled Petition to Intervene or Request for Hearing 11 of Allen Mosbaugh and Marvin Hobby, and the second-is 12 Amendments to Petition to Intervene on Request for Hearing.
13 Are you familiar with those documents?
Have you.
14 heard of those documents?
15 A
I'd like to see which ones you're talking about.
16 Q
This is the first one, Petition.to Intervene,:and 17 the second one is AmendmentsLtoiPetition to Intervene.
Have 18 you seen those documents before?-
19 A
I believe that I have.seen these.
I-couldn't say 20 if I've seen this particular draft of them,-but I-have seen.
21 drafts of_these documents.
- 22 Q-These were the final versions submitted by your-23-counsel-in'this proceeding and_I think the copies that I've 24 given are= accurate copies of the documents that were 1_
25 submitted.
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1 CHAIRMAN BLOCH:
Do you know if you saw the final 2
copies before they went in?
3 THE WITNESS:
I don't believe I have seen the 4
final copies.
5 BY MR. BLAKE:
6 Q
Neither before they were submitted nor since.
7 A
I don't think I -- I may have seen them in a 8
stack, but I know that I haven't had a chance to go through 9
everything in the final documents.
10 CHAIRMAN BLOCH:
You don't know if the final 11 copies were just sent to you as a courtesy by your lawyer.
12 THE WITNESS:
I don't believe I received a copy of 13 the final documents.
14 BY MR. BLAKE:
15 Q
Let me ask you.
The first of the documents, the 16 one that's entitled Petition, it's the smaller of the two.
17 Take a look, if you would, at the bottom of Page 2 and top 18 of Page 3.
Would you take a moment and just read that one 19 paragraph, please?
20 A
On Page 2?
21 Q
Yes.
The bottom of Page 2 starts off with some 22 reference to the Atomic Energy Act.
That's not of 23 particular interest to me, but it's the statements in there, 24 and goes to the top of Page 3.
25 CHAIRMAN BLOCH:
It's the first one, the petition, fh G
ANN RILEY & ASSOCIATES, Ltd.
Coud Reponers 1612 K. Street, N.W., Suite 300 l
Washington, D. C. 20006 (202) 293-3950
28 t
i right?
2 MR. BLAKE:
Yes, sir.
3 THE WITNE5d:
The first sentence that begins on 4
Page 2, is that what you're saying?
The paragraph?
5 BY MR. BLAKE:
6 Q
Down at the bottom of Page 2, the paragraph begins 7
" Pursuant to Section 189.8 "
That's the paragraph.
8 A
Right.
I've got that.
9 Q
Okay.
10 A
To the end of that paragraph?
11 Q
Yes, please.
Now, is this the first time you've 12 read this paragraph?
13 A
No.
14 Q
You're familiar with this paragraph.
15 A
Yes.
16 Q
And was it accurate at the time it was submitted, 17.
to the best of your knowledge and belief?
18 A
Yes, I think so.
19 Q
Okay.
Let's shift to the second document, if we 20 can, the amendment.
In this document, Mr. Mosbaugh, would 21 you read just Page 2?
22 A
Yes.
23 Q
Have you seen this page or this text here before 24 today?
25 A
I believe I've seen a draft of this.
I don't know ANN RILEY & ASSOCIATES, Ltd.
Court Reporters l
1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
29
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1 if I've seen this final one.
2 Q
As you look at it now, is it true and accurate, to 3
the best of your knowledge and belief?
4 A
There is an item on here that I think may be 5
incorrect, and that's basically based on some information 6
that I saw through my counsel that Georgia Power had 7
researched.
And I had a recollection that I-participated 8
and voted in an election in 1992-and I had told Mr. Kohn 9
that and that's what I believed.
10 And assuming the records are better than my 11 memory, I believe that perhaps the election I participated 12 in occurred in November of 1991, a couple months earlier, 13 and I may have been incorrect.
14 Q
So the record that your counsellor showed you was, 15 in fact, the voting record as it's indicated in the State of 16 Georgia, which indicated you did not vote at all in 1992.
17 A
I think I'm -- I believe that those records 18 probably are better than my own recollection.
l 19 Q
Anything else on this page that --
20 A
No.
l 21 Q
-- you think may be inaccurate?
l 22 A
No.
l 23 Q
Let me take you back to 1989-90 timeframe when you 24 were employed by Georgia Power.
You lived at the Grovetown 25 address.
O l
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Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202)-293-3950
l 30 1
A Yes.
2 Q
And your family lived at the Grovetown address.
3 A
Yes.
4 Q
And your children attended schools in the 5
Grovetown area.
6 A
Not in the Grovetown area, but in the Augusta 7
area.
8 Q
In the Augusta, Georgia area.
Was your wife 9
employed then outside the house?
10 A
- Yes, In that period, she worked part-time.
11 Q
In the Augusta area?
12 A
Yes.
13 Q
You drove a car registered where at that point in 14 time?
15 A
I drove a car that was registered in Georgia and I 16 believe I drove a car that was registered in Ohio, 17 Q
You had a car registered in two different states 18 under your name.
19 A
Not the same car, different cars.
20 Q
Was that car that was registered in Georgia at 21 that time --
22 A
I'm sorry, Not registered under my name, the car 23 that was registered in Ohio.
24 Q
Whose name was that?
25 A
It was registered under my mother's name.
GV ANN RILEY & ASSOCIATES, Ltd.
Court Reporters 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
l 31 1
Q I see.
But it was your car.
2 A
I used that car, yes.
3 Q
So the car that was registered in your name was 4
registered in Georgia at that time.
5 A
Yes.
6 Q
And were you voting at that point in time?
7 MR. KOHN:
Excuse me.
Can you specify the point 8
in time?
9 BY MR. BLAKE:
10 Q
I'm trying at 1988-89.
I don't care about the 11 specific --
12 A
You had said 1989-90.
13 Q
I was trying to get a timeframe before we had (3
L) 14 shifts, when it was fairly stable, 1989-90.
You were 15 registered to vote in Georgia at that point.
16 A
At that point, as I said before, in 1988 I 17 registered to vote in Columbia County, Georgia.
I believe I 18 voted once in the general election in 1988 and then in the 19 special election.
20 Q
With those indicia of where someone lives or where 21 someone 's in residence, voting, car registered, living with 22 family, kids attending school, wife working, you working, 23 what did you call your primary residence at that point?
24 A
My primary residence in the 1989-90 period of time 25 was my Grovetown, Georgia aduress.
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1 Q
And did you maintain that you had a residence in 2
Ohio at that point?
3 A
Yes, I did.
4 Q
Would it have been your primary residence?
5 A
Hy Ohio residence?
6 Q
Yes.
7 A
No.
My Grovetown, Georgia residence has been my 8
primary residence.
9 Q
Okay.
Let's jump ahead now to-after the summer of 10 1991, where, because of 'lu3 family circumstances that you-11 alluded to in your direct, you and your family moved to 12 Ohio.
13 You registered to vote in Ohio as of -- let me 14 take a specific date.
I'm trying to avoid problems.
I'll 15 take as of the date of your petition in this proceeding, 16 which was October 22 of 1992, just four months ago or so.
17 Let me take-that date.
18 As of that date, where was your family living?
19 A
My family was residing mainly in Ohio.
20 Q
Were your children attending school in Ohio?
21 A
That's correct.
22 Q
You were registered to vote in Ohio.
23 A
At that time, as I testified before, 1 only 24 initiated that just before the general election.
25 Q
Your driver's license in Ohio.
(v~)
ANN RILEY & ASSOCIATES, Ltd.
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33
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1 A
That's correct.
2 Q
You entered change of address to the Post Office 3
to forward your mail to Ohio.
4 A
Yes, as I testified to.
5 Q
And what did you call, at that point in time, with 6
all of those same indicia, as your primary residence?
7 A
My primary residence continues to be my residence 8
in Grovetown, Georgia.
9 Q
What would you say the primary rei ~ dence was of 10 the rest of your family?
11 A
I guess for my family, I don't know if I can state 12 the residence for my family, but I guess I would say their 13 residence is primarily in Ohio.
And as of this date?
14 Q
No.
Today.
15 A
For whom?
16 Q
Your family.
17 A
Primarily in Ohio.
18 Q
But you maintain that_you have a different primary 19 residence from your family.
20 A
Yes.
21-Q One indication of the difference between you and 22 your family is the change of address business you did with 23 the Post Office.
That is, if I understood the direct, when 24 you asked the Post Office, through a form, to forward your 25 mail to Ohio, you're doing that only on behalf of your O
ANN RILEY & ASSOCIATES, Ltd.
Coud Reponers 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
~.
34 1
family.
2 MR. KOHN:
Objection.
3 THE WITNESS:
I didn't ask that.
As I testified 4
earlier, my wife did that.
5 BY MR. BLAKE:
6 Q
Was it unbeknownst to you?
7 A
1 think she did it -- she just did it as one of 8
the things that she knew to do.
I don't believe we 9
consulted on it.
She did it.
She handled it.
10 Q
Did it come as a surprise to you when you learned 11 that your wife, who was moving with the family and you to 12 Ohio, had asked the Post Office to forward her mail there?
13 Does it come as a surprise to you?
14 A
No.
That didn't come as a surprise to me, no.
15 Q
But, nevertheless, you want your mail delivered in 16 Georgia.
17 A
Yes.
18 Q
Why is that?
19 A
I consider my Grovetown residence to be my primary 20 residence.
I plan to return my family to Georgia.
My 21 children would prefer to live in Georgia.
I believe that my 22 business career and business interests are -- prospects are 23 best here in Georgia.
24 Q
I'm going to ask you whether or not you remember 25 conversations with employees of Georgia Power about your 1
ANN RILEY &' ASSOCIATES, Ltd.
l COud RepOders 1612 K. Street, N.W., Suite 300 l
Washington, D. C. 20006 l
(202) 293-3950
i 35
([
l intentions, rather than being in Georgia in the long term, 2
to retire to your farm in Ohio.
Do you recall any such 3
conversations, statements that you made?
4 A
To retire?
5 Q
Yes.
That you had done well in some investments 6
and that you were looking forward to retirement with your 7
family at your farm in ohio.
Do you recall any such 8
statements?
9 CHAIRMAN BIOCH:
His question is do you recall 10 such statements, not to explain th.cm.
Just do you recall 11 such statements.
12 THE WITNESS:
Statements I made to employees that 13 I planned to retire in Ohi.
14 BY MR. BLAKE:
15 Q
Right.
16 A
I believe I made statements that I had -- that was 17 maybe a long term goal if I was ever financially 18 independent, yes.
19 Q
With regard to seeking employment, which you've 20 now referred to on a couple of occasions, do you-recall in 21 the course of your Department of Labor case, there were 22 references to and evidence adduced on the question of your 23 seeking employment?
24 A
Yes.
25 Q
Do you recall that that evidence showed that you O
ANN RILEY & ASSOCIATES, Ltd.
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36
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1 sought employment in the Georgia, Augusta, Georgia area 2
basically through the end of the summer of 1991 and 3
thereafter, from 1991 through middle of 1992, sought 4
employment in the Ohio area rather than in Georgia?
5 Do you recall that genieral shift, that is when you 6
moved to Ohio with your family, that you started seeking 7
employment in the Ohio area?
8 A
I don't believe that there was -- that I have 9
sought employment in one location only when I was in that 10 location or the other location when I was only in that 11 location, no.
I've sought employment in both areas, which 12 would only make sense for me since I have a residence in l
13 both areas.
14 Q
Are you currently seeking employment in both 15 areas?
16 A
Yes.
17 Q
Can you tell me since -- during 1992, what 18 employment you sought in Ohio?
19 A
I believe I sought employment in 1992 with some 20 contractors that work at the Fernald area, Fernald facility 21 in the Cincinnati area.
22 Q
And can you tell me, during 1992, what employment 23 you sought in Georgia?
24 A
I sought employment in chemical process areas, 25 chemical engineering type work in the Augusta area.
()
ANN RILEY & ASSOCIATES, Ltd.
Coud Reponers 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
37 O) 1 Q
And when was that ir. 1992, if you remember?
(
2 A
I believe I had conversations with an employment 3
agency in November, around in November.
4 Q
Two months acc.
5 A
Yes.
6 Q
In the course of your direct, you talked about the 7
shift to Ohio and then indicated that very recently you had 8
made some changes back to Georgia.
I don't want to 9
misrepresent these.
10 But very recently you have asked the Post Office 11 to deliver mail for you, but not your family, at your 12 Grovetown address.
13 A
That's correct.
bk/
14 Q
I don't know whether you testified or not, but is 15 it also true that you asked Georgia Power Company to send 16 your bills, your bills to the Grovetown address rather than 17 to the Ohio address?
18 A
That's correct.
19 Q
When you had moved to Ohio in August or 20 thereabouts of 1991, was it you or your wife who asked the 21 Georgia Power Company to send the bills to Ohio?
22 A
I do not believe we asked the Georgia Power 23 Company to rend the bills to Ohio in August of 1991.
I 24 believe that I asked Georgia Power Company to send the bills 25 to Ohio in about October of 1992.
! (q
_/
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38
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1 Q
October of 1992, you first asked them to send 2
bills for the Grovetown address out to Ohio.
3 A
I believe that's when I asked them to do that.
I 4
was paying an electric bill at the downtown office.
I had 5
been having some difficulty.
I was late on payment on that 6
bill.
7 Q
And on December 31, did you indicate to the power 8
company that they should return to billing you at the 9
Grovetown address?
10 A
Yes.
I had had more difficulties with my bill, 11 receiving my bill and I again paid the bill in person at the 12 downtown office and asked them to change the mailing address 13 back to my Grovetown residence.
14 Q
And on December 31, after the exchanges of 15 documents in this proceeding questioning your standing here, 16 did you also re-ragister to vote in Georgia?
17 A
December --
end of December, yes, I re-18 registered, as I testified earlier.
19 Q
Let me return you to the petition, the first, the 20 smaller of the two documents that I first handed you, Page 2 21 of that petition, at the top, the paragraph that we earlier l
22 went over.
23 This document is dated October 22, 1992, correct?
24 I may have misspoken, but that's my recollection.
25 A
I see a September --
O ANN RILEY & ASSOCIATES, Ltd.
Coun Repoders 1612 K. Street, N.W., Suite 300
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39 j1 Q
Yes, 22.
The bottom of the last page.
2 CHAIRMAN BLOCH:
Bottom of Page 4.
3 BY MR. BLAKE:
4 Q
Let me focus you at the t.p of Page 2, on the 5
sentence that says "As of October 1992, Mr. Mosbaugh and his 6
family live, work, recreate and travel in the environs of 7
VEGP."
8 CHAIRMAN BLOCH:
We're on Page 3.
Aren't we on 9
Page 3?
I'm not seeing it on Page 2.
10 MR. BLAKE:
I'm sorry.
I goofed.
11 BY MR. BLAKE:
12 Q
It's the top of Page 3.
I'm sorry, Mr. Mosbaugh.
13 A
Yes, I see that.
14 Q
"Mr. Mosbaugh and his family live, work, recreate 15 and travel in the environs of Vogtle."
What is the nature 16 of the work that you and your family do as of October of 17 1992 in the Augusta or Vogtle area?
18 A
The' work that I'm doing in the Augusta area is 19 work on my house.
20 Q
What about your wife or your children?
Is that 21 the extent of the work?
22 A
That's correct.
23 Q
What about living?
24 A
I'm in -- I live in the Augusta area'about one 25 week every month.
My family lives in the Augusta area O
ANN RILEY & ASSOCIATES, Ltd.
Coud Reponers 1612 K. Street, N.W., Suite 300 Washington, D. C. 20006 (202) 293-3950
40 1
probably three weeks a year.
I hope that answers your 2
question.
3 Q
And the recreate and travel aspects of it would 4
be, I take it, with regard to you and your family.
5 A
When we're here we do those things, yes.
6 Q
And when you're here -- look at the next sentence 7
for a moment.
When you're here, as well, for that -- your 8
family for maybe three weeks a year, they eat food from the 9
local area.
10 A
Yes.
11 MR. BLAKE:
Let me take just a moment, if I can, 12 Your Honor.
I have no more questions.
Thank you, Mr.
13 Mosbaugh.
14 CHAIRMAN BLOCH:
How much time does the staff plan 15 to cross?
16 MR. BARTH:
Less than ten minutes, Your Honor.
17 CHAIRMAN BLOCH:
Would you prefer to have a break 18 down or to continue?
19 THE WITNESS:
If I could have a glass of water, 20 I'd be willing to continue.
27.
CHAIRMAN BLOCH:
Sure.
Let's take a five-minute 22 break.
It's five of ten and then we'll continue at 10:00.
23
[ Recess.]
24 CHAIRMAN BLOCH:
Mr. Barth.
25
(~h
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41 1
CROSS EXAMINATION 2
BY MR. BARTH:
3 Q
Mr. Mosbaugh, last week, there was a conference 4
call among the counsel and the presiding Judge and I 5
informed your counsel I would ask you questions regarding 6
the time you spent in Georgia.
Did your counsel inform you 7
of my line of questions?
8 A
That you would be asking that?
9 Q
Yes.
10 A
No.
11 Q
Are you prepared to identify for the Board the 12 days you spent in Georgia last year?
13 A
Specifically?
i 14 Q
Yes, sir.
15 A
I don't think I can sit here and say the fifth of 16 June and the seventh of June and on a specific date basis.
17 I can certainly give you my best recollection of the times.
18 Q
Why don't we start with Christmas?
Where did you 19 spend Christmas, sir?
20 A
Christmas of?
21 Q
Last year.
22 A
Of 1992?
Christmas of 1992 I spent in Ohio.
23 Q
How about New Year's 1993?
24 A
In Georgia.
25 Q
Was your family with you?
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1 A
Yes.
All my children.
2 Q
Where did you spend Thanksgiving of 19927 3
A In Ohio.
4 Q
Was your family with you?
5 A
Yes.
6 MR. BARTH:
Your Honor, I would like to make a 7
comment that I think it is certainly bad professionally for 8
his counsel not to have advised him of the line of questions 9
that would be asked him.
I wish to note this for the 10 record.
11 MR. KOHN:
Your Honor, I'd like to address that.
12 I did not state to Mr. Mosbaugh who would be asking 13 questions, but I asked Mr. Mosbaugh what his best 14 recollection is of the dates and I spent time with Mr.
15 Mosbaugh trying to get that information.
16 I didn't say that X -- Mr. Barth -- I don't even 17 know if Mr. Mosbaugh knew who Mr. Barth was prior to today.
18 But there were numerous conversations between his counsel 19 where we attempted to obtain the best -- I attempted to 20 obtain the best information I could from my client there, 21 and that type of information is just hard to come by.
22 Inasmuch as Mr. Mosbaugh does not own a credit 23 card, everything is paid with cash, it's difficult to even j
24 come up with receipts in that regard.
And I did endeavor to l
25 the best of my ability to have Mr. Mosbaugh research his O
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1 recollection and como up with the-best dates he can, and he 2
is prepared to testify to that today.
3 BY MR. BARTH:
4 Q
Were you in Georgia between Thanksgiving 1992 and 5
Christmas 1992, Mr. Mosbaugh?
6 A
Between Thanksgiving and Christmas.
I was -- I 7
don't believe -- I don't believe I was.
I was in Georgia in 8
November.
I met with the NRC in Georgia in November.
I was 9
-- if I recall, it was around the middle of the month and I 10 was in Georgia for around five days right in the middle of 11 November.
I guess that was just before Thanksgiving.
12 And as far as right between Thanksgiving and 13 Christmas, no, but I was there right after Christmas.
I 14 came to Georgia the week after Christmas through New Year's.
15 Q
I would ask you a question on the fifth line on 16 Page 3 of your amendment to your petition.
If this has been 17 covered, I apologize.
You state that your family worked in 18 Georgia.
Could you tell us who employed your wife in 19 Georgia in October 1992?
20 A
You're on page?
21 Q
Page 3 of the amendment to the petition, Line 6.
l 22 "Mr. Mosbaugh and his family live, work, recreate and travel 23 in the environs of Vogtle."
24 MR. BLAKE:
It's the initial petition, Mr.
25 Mosbaugh.
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CHAIRMAN BIACH:
I'm looking at the amendments.
I 2-don't see it.
3 MR. BLAKE:
It's the initial petition.
4 MR. BARTH:
I beg your pardon.
No wonder.
5 CHAIRMAN BLOCH:
And those were the questions that 6
were already asked.
You already asked him about work.
7 MR. BLAKE:
I asked some questions about that, 8
yes, sir.
I 9
MR. BARTH:
I think the word is some questions.
j 10 CHAIRMAN BLOCH:
Well, the word work was discussed 11 specifically and I underlined it at the time.
12 MR. BARTH:
The record will show I think-the 13 question is what work was done and I'm asking if she had an 14 outside employer in Georgia.
If that distinction is too 15 fine, Your Honor, I will withdraw the question.
16 THE WITNESS:
I think it was asked before, but 17 I'll answer it again.
No, my wife did-not have an employer, 18 outside employer in Georgia at the time you referenced.
l 19 MR. BARTH:
I have no more questions, Your Honor.
l 20 CHAIRMAN BLOCH:
I have just a couple before we go l_
21 to redirect.
I take it that it's important for you at this
_ j l
22 time to obtain a job, is that true?
{
23 THE WITNESS:
Yes.
24 CHAI.RMAN BLOCH:
And my understanding of your 25 testimony is that if you obtain a job in Ohio, you'll LO ANN RILEY & ASSOCIATES, Ltd.
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1 primarily reside in ohio, and if you obtain one in Georgia, 2
you'll primarily reside in Georgia, Is that correct?
3 THE WITNESS:
I think that would be generally 4
correct, but I've been unable to find a job either in Ohio 5
or in Georgia and I'm currently considering another business 6
option for myself, and that's going into business for 7
myself.
8 And my experience with construction and working on 9
my house is kind of what that's related to and I'm seriously 10 considering right now a business venture here in the Augusta 11 area because there's a lot of building and growth here.
12 And I make hardwood moldings and I think there's a 13 potentially lucrative business venture for myself in that 14 area.
So I'm -- in addition to obtaining employment from an 15 outside employer, I'm considering this and pursuing this 16 right now.
17 CHAIRMAN BLoCH:
When you say you're pursuing it, 18 you have specific people you've talked to about it.
19 THE WITNESS:
As far as like forming a company?
I 20 haven't talked to people about forming a company, but I've -
21
- what I've been doing is looking at the marketplace and the 22 costs that I have in making moldings and just seeing if it's 23 a lucrative venture for myself.
24 That venture would be in selling those products 25 down here.
I may be involved in making those products in O
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the Ohio area.
2 CHAIRMAN BLOCil:
So actually you could have 3
activities in both areas.
4 THE WITNESS:
That venture might be a combined 5
venture with some manufacturing going on, like, in the Ohio 6
area and the sales and so forth going on down here is what 7
I'm thinking about.
t 8
CHAIRMAN BLOCH:
Would you consider sales in Ohio?
9 If you're going to make the stuff in Ohio, why would you -
10 11 THE WITNESS:
This area is different than the area 12 in Ohio.
This is a sunbelt growing area and people use a l
13 lot of moldings down here.
With the construction of houses, 14 it's a very desirable thing to have -- use a lot of chair 15 rail and ceiling moldings and things like that.
16 CHAIRMAN BIDCH:
Redirect?
I'm sorry.
My fellow 17 Judges have questions.
18 JUDGE-CARPENTER:
Mr. Mosbaugh, you've mentioned a 19 few times that you've met repeatedly with representatives of l
i 20 the Office of Investigation, NRC at your home in Georgia, I
21 Have you ever met with the NRC representatives in Ohio?
22 THE WITNESS:
No.
i 23 JUDGE CARPENTER:
You come down here for their 24 convenience.
25 THE WITNESS:
No.
I happen to be here fairly 1.
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frequently as.d I have not with them when I was here.
2 JUDGE CARPENTER:
You tell us that your wife felt 3
very strongly about going to Ohio to be with her father.
4 Tile WITNESS:
Yes.
S JUDGE CARPENTER:
Becausn of his prostato cancer.
6 Would you say that that 1 cads to a large <3xtent to this j
7 strange one foot in Ohio and one foot in Georgia that you're 8
into yourself?
In other words, she has a demand that she be 9
up there, which might not have led to her moving to Ohio in 10 the absence -- or not.
11 I hate asking such a hypothetical.
12 THE WITNESS:
lier desire to return to Ohio is much 13 greater than mine.
14 JUDGE CARPENTER:
Because of her father.
15 Tile WITNESS:
Yes.
16 JUDGE CARPENTER:
But there are other reasons for 17 her wanting to move back to Ohio.
18 THE WITNESS:
I think she had some desire to 19 return to there as opposed to Georgia beyond just her 20 father, but her father certainly was -- is the significant 21 reason.
L 22 JUDGE CARPENTER:
Turning to the stipulations, in f
23 your Stipulation No. 18, it says that you've been driving 24 with a driver's license issued by the State of Ohio 25 throughout the whole period in which you were a Georgia O
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resident.
2 Woro you over stopped for a moving violation to 3
000 how the Stato of Georgia felt about that?
4 Tile WITNESS:
I haven't been stopped by a moving 5
violation.
I guess I shouldn't have dono that, but that's 6
the facts.
7 JUDGE CARPENTER:
And also sometimes it's nico to 8
have a driver's licenso if you want to cash a check in the 9
store and they ask for identification.
A voter's card is 10 not that kind of identification, but a driver's licenso is 11 usually accepted as proof of residence.
12 Tile WITNESS:
I've never had any problem, never.
13 JUDGE CARPENTER:
So they simply look at your i
14 address in Ohio and are reassured that, well, in the face of 15 that, you are truly a resident of the State of Georgia.
16 Ti!E WITNESS:
I don't understand that question.
17 JUDGE CARPENTER:
Let me go a little slower.
You 18 decide to purchase something by check in Georgia and you're 19 asked for identification and you proffer an Ohio driver's 20 licenso and reassure the person that, in fact, you really do 21 live in Georgia in spite of your driver's licenso saying you 22 live in Ohio.
23 TiiE WITNESS:
Normally --
24 JUDGE CARPENTER:
I'd be confused.
25 Tile WITNESS:
Normally, a -- that situation has O
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occurred and what normally occurs is they'll say is this 2
information -- is this address on your check correct and I 3
will say yes, and there is no problem.
I've never had it be 4
a problem.
5 JUDGE CARPENTER:
Thank you.
6 JUDGE MURPHY:
Mr. Mosbaugh, you've stated that 7
you spend about one week a month in Georgia.
Is there a 8
routine pattern to your trips to Georgia and your time in 9
In there some motivation that gets you here each 10 time?
11 THE WITNESS:
There is no routine pattern as far 12 as it always being the first week of the month or anything 13 like that.
As far as coming here, I come down here to work 14 on the house.
Sometimes I come down here to, at least in 15 part, to be alone.
I do have a lot of pressures on me in 16 the last couple of years.
17 on certain periods, especially during the summer, 18 I tend to be in this area more frequently and bring my 19 family with me, but I wouldn't say there's a pattern.
20 JUDGE MURPHY:
What is the longest time that you 21 spent in Georgia in 1992?
22 MR. KOHN:
Is that continuously?
23 JUDGE MURPHY:
Yes.
At one point, in one visit.
24 THE WITNESS:
Probably be about a week-and-a-25 half.
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JUDGE MURPilY:
And were there months in 1992 that 2
you didn't spend any time in Georgia?
3 Tile WITiiESS:
lio, not that I can recall.
I've 4
been here approximately one week every month and I did 5
search around and made sure, from the best of my 6
recollections or whatever, I could verify that that is 7
correct.
8 Cl! AIRMAN BLOCll:
Redirect.
9 REDIRECT EXAMINATIoti 10 BY MR. KollN:
11 Q
Mr. Mosbaugh, where -- do you have friends in the 12 area around Plant Vogtle?
13 A
Yes, I do.
14 Q
And where -- other than your friends in this area 15
-- let me rephrase that.
Where do the people you consider 16 to be your friends generally reside?
17 A
Most of my friends are my work friends from my 18 six-plus years with Georgia Power and they're my most recent 19 friends.
I have most of my friends in the Augusta area.
20 Q
Is your home, the property you own in Ohio, a
21 rural setting?
22 A
Yes.
It's a very rural setting.
There's no 23 neighbors or kids for my -- or families for my kids to play 24 with.
We're in a very rural area.
It's very different than 25 my Grovetown area where there's lots of families that live O
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1 in tho subdivision.
I'm not in a subdivision in Ohio and 2
don't have many -- don't really have any neighbors or kids 3
that -- neighborhood kids, if you will.
4 Q
Do members of your family -- have they requested 5
to return to Georgia?
6 A
- Yes, Pv son, Adam, he asks me overy couple months 7
"When can we go back to Georgia?"
He would very much 00 8
want to be here.
Every time I bring the family down here, 9
my children -- they almost cry when we have to leave.
They 10 miss their friends that they made in our subdivision.
They 11 miss them a lot.
They call them frequently from Ohio.
12 Q
Are you aware of whether Georgia Power contacted 13 any of your friends during the course of -- since october 14 22, 1992, after you filed your petition to intervene, and 15 questioned them on the frequency of your visits down to this 16 area?
17 A
Yes.
I was made aware that they had made such a 18 contact of one of my friends and had asked him how 19 frequently I was in the Georgia area.
20 Q
And did that individual employes at Georgia Power 21 Company confirm that you were in the area approximately one L
22 week out of the month?
23 A
Yes, he did.
24 MR. KOHN:
No further questions, Your Honor.
25 MR. BARTH:
We have no questions, Your Honor.
, ()
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CilAIRMAN BLOCll:
Thank you, Mr. Mosbaugh.
Thank 2
you for your testimony.
You're excused.
3 (Witness excused.)
4 CHAIRMAN BLOCH:
I think what I'd like to do next 5
is what I hinted at at the telephone conference we had.
It 6
appears to be the case that if we accept the testimony 7
that's been offered, that Mr. Mosbaugh is a part-time a
resident of Georgia, about a week and there's some chance ho 9
might be here more often in the future and sometimes he 10 might be here less often in the future.
11 So I'd like to know what the parties can tell me 12 by way of argument concerning either legal precedent or 13 analysis that would allow us to compare someone 35 miles 14 part-time to someone full-time at the limit of the 15 jurisdictional contacts rubric that was set up at the NRC, 16 which is 50 miles.
17 How should we think about that?
I guess I'd like 18 counsel for Intervenor to start.
19 MR. KoHN:
Your Honor, we've thought about that 20 and our feeling is if the -- if an accident occurs at the 21 plant, there is no way of predicting whether Mr. Mosbaugh 22 will be in his residence at that time or not.
And if he was 23 a full-time reslient and for Thanksgiving vacation he would 24 normally spend it with his family, his wife's family up in 25 ohio and he was away from the site, even though he'was there O
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95 pe; cent of the time, there's no way to guarantee that Mr.
2 Mosbaugh will be there when the accident occurs.
3 But there is a substantial likelihood he will be 4
there when an accident occurs.
And moreover, the nature of 5
the property he owns, hand-constructed residence of special 6
sentimental value to the Complainant, could be destroyed by 7
an accident and rendered worthless.
8 That, I believe, confers a different nature of the 9
standing.
Moreover, Mr. Mosbaugh has a current request 10 before the Department of Labor to be reinstated at Georgia 11 Power Company or at the Plant Vogtle and we believe there's 32 a very strong likelihood that order will be granted.
13 CHAIRMAN BLOCll:
That's in appeal to the 14 Secretary.
15 MR. KOHN:
That's correct.
And it should be 16 understood that the Wage and Hour Office ordered 17-reinstatement.
The Administrative Law Judge determined that 18 reinstatomont would not be proper.
We are in the process of 19 filing our appeal brief and I have advised Mr. Mosbaugh that 20 we believe he has a -- he will prevail eventually and that 21 he will be able to obtain a reinstatement, and Mr. Mosbaugh 22 has overy right to believe he is more likely to be working 23 and residing full-time in this area than anywhere else.
24 There are more engineering and nuclear related 25 jobs in this area than perhaps anywhere else in the United O
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States.
In the backwoods of Ohio, there's just not that 2
much choice for employment, and that's why Mr. Mosbaugh 3
originally moved to the Vogtle area.
j 4
That is his profession.
IIe's a nuclear and 5
chemical engineer.
And the reality is that he will be in 6
this area when or if an accident occurs.
7 CilAIRMAN BLOCil:
Thank you.
8 MR. BLAKE:
Judge Bloch, we, too, have considered 9
the Board's request that we think about distance and 10 frequency and the various factors that are involved here.
11 There are some cases that refer to individuals who 12 are not full-time in residence within 50 miles of nuclear 13 plants.
There's one case that has a resident --
14 CilAIRMAN BLOC 11:
I was aware of some where they 15 were residents and they also had other contacts that were 16 closer.
17 MR. BLAKE:
There's one that has a residence of 43 18 miles and also recreates or canoes past the plant.
There 19 are a variety of these, not so many, and none that I would 20 say supports the Board's granting of standing here, because 21 each of these --
22 CilAIRMAN BLOCil:
That may be true, but I don't 23 think there are any that also would support denying standing 24 MR. BLAKE:
Well, I'm going to suggest that there 25 is one.
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CilAIRMAN DIDCil:
okay.
2 MR. BLAKE:
I suggest that the plant -- the one 3
that I just referred to, th3t is where an individual lived 4
some distance -- in this case, I believe it's 43 miles and 5
canoed -- was not found to have a standing, where -- and 6
this is the important part and of great importance here --
7 where the action under consideration dealt with the spent 8
fuel pool.
9 This was not an operating license proceeding or a 10 construction permit proceeding or something that might rely 11 in a different attitude or different technical evaluation 12 about the prospects of the accident that Mr. Kohn has 13 referred to.
We're simply not in that situation and I don't 14 hcVe to argue that, fortunately, today.
15 All I have to convince you of is that the 16 connections that Mr. Mosbaugh has, accepting his testimony 17 presently, at the time of his petition, and prospectively in 18 the future, accepting his testimony, and I'm going to come i
19 back to that, are not sufficient in the context of this 20 amendment proceeding and what the NRC is trying to determine l
21 here, whether it need authorize it.
l 22 Cl! AIRMAN BLOCH:
If you can limit the risks, l
23 clearly you're correct.
The question is, and I dop't know 24 that we will be doing that, but if, in fact, the risks were 25 about the same as an operating license, would that also be O
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correct?
2 MR. BLAKE:
As I indicated earlier to you, I would 3
not be as comfortable, as confident as I am in arguing to 4
you if that were the case here.
That would really be a 5
different situation with all of the potential ramifications 6
that go with it.
7 And I'm not certain that someone who owned 8
property and was here, again accepting his testimony that 9
he's here one week out of the year in the area, would not be 10 sufficient for an operating license or a construction 11 permit.
12 Cl! AIRMAN BLoCH:
one week a month was his 13 testimony.
14 MR. BLAKE:
A week a month, yes.
I'm sorry.
I 15 didn't mean to misrepresent that.
But I am glad that I'm 16 not arguing that case.
17 CHAIRMAN BLoCH:
Thank you.
Staff?
18 MR. BARTH:
Your Honor, in answer to your direct 19 question, which I think has been avoided, we can find no 20 formula by which distance from the plant is equated to time 21 spent in the area.
And to the best of our knowledge, this 22 does not exist.
We have locked at this.
We have consulted 23 among ourselves within the agency forever and a day, like 24 Methusla, and, of course, it would not make good sense.
25 As counsel for the Petitioner pointed out, who O
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1 knows what day an accident would occur?
You're not going to 2
certainly take 365 days, one day, one-365th, and make some 3
kind of a compound to coma up with a probability of it being 4
where an accident in.
5 To the best of our knowledge, there is no answer 6
to your question as you phrased it to us on the telephone, 7
Your Honor, and have just phrased it now.
8 CHAIRMAN BLOCH:
I'm a little disappointed, 9
because I assume that the fact that someone lives at 51 10 miles is a risk-based judgement that would say, well, at 11 some point, the risk declines where you have no standing.
12 And while it's true that people living in the area 13 of the plant might be there only, say, 90 percent of the 14 time and still be full-time residents or maybe 80 percent, 15 still there has to be some notion of risk related to 16 standing here.
And the fact that you don't know a specific 17 day doesn't bother me at all.
18 Yes, it's true that someone who only traveled in 19 the plant -- to the plant one day a year could be there when 20 an accident occurs.
But the rule of thumb is that somehow 21 the risk is small enough after 50 miles that we don't take 22 such people, even with an operating license.
23 MR. BARTH:
Your Honor, there's a slight 24 confusion.
The word " risk" as treated by our technical 25 people is a compound of probability times the consequence.
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CllAIRMAN BLoCil:
That's the way I was using it, 2
yes.
3 MR. BARTil:
That is different than time spent in 4
distance from the reactor.
5 CilAIRMAN BLoCil:
No, it's not.
6 MR. BARTil:
At no time have we confused --
7 CllAIRMAN BIACil:
If you cannot predict the day on 8
which it's going to occur, then the percentage of the year 9
spent near the reactor is related to risk.
It's the number 10 of days divided by the number of days in the year.
11 MR. BARTil I beg to diffor the technical 12 viewpoint of how you compete the statistics.
But putting 13 that aside, we find no such kind of formulation.
14 I would also like to suggest to you that what your 15 problem is is to take the testimony given and view it -- are 16 there sufficient real physical contacts by Mr. Mosbaugh in 17 the vicinity of the plant which would put him at risk if he 18 can prove the second and third leg of the Supreme Court's 19 test for a standing in 112 Supreme Court 2136, which is, of 20 course, Lujan, which we have cited, which is he must show a 21 provable probability of accident and real.
22 I would also -- you know this better than I do, 23 Your lionor.
This is exactly what you said in your November 24 17, 1992 memorandum and order, which exactly tracks these 25 three elements for standing.
It's not just his presence O
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alone that does it.
2 CHAIRMAN BLOCH:
Okay.
What I'd like to --
3 MR. BARTH:
And before we are done, we wou)d also 4
like to address one question you asked in your order, which 5
is redressability, and, two, the occurrence of an accident 6
by which he could be at harm if he were in this area 365 7
days a year.
8 Conceding the first point; is he at risk because 9
someone else signs the checks for the employees who are 10 operating Georgia; does that increase his risk to his health 11 and safety if some different legal corporate entity signs 12 those checks.
13 CHAIRMAN BLoCH:
Okay.
So what I'd like to do is 14 suggest we take a ten-minute recess and we'll start with the 15 staff's motion, but I'd like the parties also to be prepared 16 to go onto another round of argument which we might have, 17 which is the extent of the harm with respect to standing.
18 They're directly related.
The reason I want to 19 start with the motion is because the motion is related to 20 the other, in my opinion.
I'd like people to be very aware l
21 of the charts that have been presented by the licensee 22 because the question is how is this amendment proceeding
(
23 effected by the ongoing investigation; how is this amendment-24 proceeding going to cause some redressable harm.
25 So I'd like to do that as -- would people prefer l ()
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to do that as two separate rounds of argument or as one?
2 Would you like to address both questions?
3 MR. BARTil:
In our view, Your lionor, I would like 4
to try and persuade you to reverse the order, because I 5
think that he has to prove standing befors wo ever get to 6
any kind of discussion of contentions whatsoever.
7 CilAIRMAN BLoCil:
Let's discuss the two together, 8
the motion that we deferred the consideration and, at the 9
same time, the question of whether there is redressable harm 10 in this proceeding.
11 MR. BLAKE:
It will be somewhat awkward for us to 12 do it at the same time, Your lionor, simply because I'd ask 13 Mr. Lamberski to be prepared to argue the allowability
'f 14 the contentions, if you will, which comes into the staft's 15 motion, simply because he has lived with this now for a 16 couple years and has more fan 111arity than I do.
17 Cl! AIRMAN BIDCil:
The staff is correct that the 18 redressable harm issue is prior in the procedural since 19 MR. BIAKE:
Yes.
20 CIIAIRMAN BIACH:
Because there is no consideration 21 of contentions if there's no standing.
So if there's no 22 objection, why don't we start with -- I'm not limiting time, 23 but my notion is that there shouldn't be more than ten 24 minutes.
I don't think anyone is going to take ten minutes.
25 We'll start redressable harm when we come back and O
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1 then after that we'll go, if we still need to, to the motion 2
MR. BLAKE:
I would prefer that.
Thank you.
3 CHAIRMAN BLoCH:
The hearing will reconvene at 4
10:42.
It's now 10:32.
5
[ Recess.)
6 CHAIRMAN BLOCH:
The hearing will please come to 7
order.
I'd like to ask the Reporter to bind in the two 8
organization charts furnished by licensee at this point.
9 Before Mr. Kohn begins his argument, I would like to repeat 10 a question I asked him during the break.
11 The question is whether he knows of any specific 12 language in the license that prohibits the current form of 13 organization.
He suggested that some of the changes were 14 not permitted by the license, and that could affect whether 15 or not there's more of a change from the permitted form to 16 the amendment, if there is, in fact, something deviant in 17 the present form from what's permitted in the license.
18 If there's not, then there seems to be a fairly 19 straightforward change in organization and I'm not sure that 20 the investigation is relevant.
So I hope you address these 21 points.
22 MR. KoHN:
With the last point you've raised, it 23 is the Petitioner's contention that under 10 CFR Section 24
- 50. 34 (6) (i), the applicant, Georgia Power Company, was 25 required to keep the license in conformity with who was O
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operating the plant and when.
2 The problem is that --
3 CilAIRMAN BLOCH:
I don't understand that language.
4 You might want to hone it up a little bit.
To koop the 5
plant in conformity with who was operating the plant and 6
when.
i 7
MR. KOllN:
In accordance with the license.
The 8
license was given to Georgia Power Company as a legal 9
entity.
Georgia Power Company had its own nuclear 10 operations.
The structure was established.
The Nuclear 11 Regulatory Commission looked only at Georgia Power Company 12 as the licensed operator at the plant.
13 CHAIRMAN BLOCil:
So I take it that in the Phase II 14 diagram given to us, it's your opinion that tha diagram 15 shows an illegal form of organization.
Is that correct?
16 MR. KOHN:
That is correct.
17 CHAIRMAN BLOCH:
And the portion that's illegal 18 must be, if anything, that the Executive Vice President of 19 GPC was also Southern Nuclear Corporation President.
Is 20 that the deviation?
21 MR. KOHN1 That is one of the major deviations, 22 yes.
Same thing was --
l 23 CHAIRMAN BLOCH:
And the one directly beneath it, 24 right?
25 MR. KOlIN:
The Senior Vice President, yes, and O
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also Mr. McCoy, the Vogtle Project President.
The fact is 2
that the Southern Nuclear people who we have just mentioned 3
hand-selected the current manager, Plant Manager of Plant 4
Vogtle, who he left Southern Nuclear and went into the 5
present position as Manager of Plant Vogtle.
6 The situation is unique in that, yes, we have two 7
wholly-owned subsidiaries of a corporation, the Southern 8
Company.
We contend that the Southern Company, had they 9
individually applied for the 11conse, may not have been able 10 to get it because they may not have had the requisite 11 character and competence to operate a nuclear power plant.
12 That question was never raised at the licensing 13 matters with Georgia Power Company.
Georgia Power Company 14 was the licensee and it was determined that Georgia Power 15 Company had the requisite character and competence to 16 cperate a nuclear facility.
17 CHAIRMAN BLOCH:
Now, at the present time, these 18 people are all employed by Georgia Power, according to the 19 diagram, at least, and what you're contending is that their 20 dual employment is a violation of the licensee or of the 21 regulations.
22 Now, could you cite the specific language either 23 in the regulations or the license that suggests that?
24 MR. KOHN:
I don't have those documents in my 25 possession right now, but I believe under 10 CFR --
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CllAIRMAN DI4CH:
That may be crucial, because the 2
question is whether, in fact, there is something 3
unauthorized by the license now that will be authorized by 4
the change.
We have to know the difference, the delta, in 5
engineering terms, between what we've got now and what we're 6
going to have.
7 If, in fact, this organization is 1cgal, the delta 8
is very small.
9 MR. KOHN:
Okay.
I'd like to address that.
It is 10 illegal for the following reasons.
Georgia Power Company 11 had -- I'll say the Southern Company intended to form a 12 Southern Nuclear operating group.
Due to intervention 13 petitions filed by Oglethorpe Power Company, they were not 14 allowed to form this legal entity.
15 And their concept of how they were going to create 16 the Southern Nuclear Operating Company changed dramatically.
17 According to the General Manager of Contract Administration 18 responsible for overseeing the formation of Sonopco, who 19 tendered an internal memorandum to the Senior Vice President 20 at Georgia Power Company, he claimed that the plant, Georgia 21 Power Company was no longer in control of its plant and that 22 the Southern Nuclear Operating Group had formally taken 23 charge over all operating matters at Plant Vogtle.
24 The question is --
25 CHAIRMAN BLOCH:
That's because -- now, that's a O
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contention that the chart, in fact, is not a chart of what's 2
happening.
3 MR. KollN:
Tn'nt's correct.
And that is our 4
allegation.
You can put anything you want on a piece of 5
paper and put a name and pay them from that entity.
You've 6
got to look at who is actually in control of the 7
organization.
8 What are the power structures that be?
Who is 9
calling the shots?
It is clear that Mr. Farley was in 10 control.
The testimony cited to in our petition 11 demonstrates that Mr. Dahlberg was not in touch with the
=
12 plant, although he was responsible for the operation, and 13 that the actual day-to-day understanding of how the Sonopco 14 organization was functioning and who was in charge of it was I
15 vested with Mr. Parley.
l 16 CilAIRMAN BLOCH:
You don't have to prove this now, 17 but what is there that you've given us that indicates that 18 you have reasonable basis for thinking that Mr. Dahlberg was 19 not in day-to-day operation of the plant?
20 MR. KoliN:
Mr. Dahlberg's testimony --
21 Cl! AIRMAN BLOCil:
Wait a second.
That he was doing 22 something other than what a President always does, and I 23 think that a President and CEO isn't in day-to-day 24 operations.
25 MR. 1;OllN:
The testimony or evidence that would O
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suggest that would be Mr. Ilobby's testimony that he was 2
attempting to --
3 CitAIRMAN Bbocil:
Do you have it in your filings 4
already?
5 MR. KOllN:
Those exact portions are probably not 6
in the petition as it is.
I'd have to read it.
They may 7
well be, but --
8 Cl! AIRMAN BIDCil I have to know by the end of 9
today the basis for your -- I mean, there is some 10 understanding that what you say today can be used by us in 11 deciding whether to admit a party.
But I can't take your 12 word about what Mr. Dahlberg said without having the 13 transcript.
14 MR. KollN:
Those portions of the transcript are 15 referenced in the petition, Mr. Dahlberg's testimony and Mr.
16 Farley's testimony.
17 Cl! AIRMAN BLOCll:
Okay.
So the portions that are 18 referenced in the petition are your basis for believing that 19 he was not performing the ordinary functions of a President 20 and CEO.
21 MR. KOllN:
That's correct.
And in particular, 22 additionally, was the inability for the Georgia Power 23 Company -- the solely Georgia Power Company employees with 24 whom Mr. Mosbaugh -- excuse me -- Mr. Hobby was reporting to 25 as Senior Vice President, he was a General Manager, was
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unabic to staff his project without the concurrence of the 2
Sonopco management structure.
3 And whenever the Sonopco management structure came 4
into a difference with the Georgia Power management 5
structure --
6 Cl! AIRMAN DIDCil:
Are you talking about Mcdonald or 7
someone else?
8 MR. Kol!N:
We're talking about the -- let me take 9
a stop back and say the problem we are facing with this 10 licensing proceeding today is it is a few years too late.
11 And the reason it's a few years too late is because the 12 licensoo did not file the petition to amend the petition, to 13 amend their operating license timely, first, and the NRC 14 staff, knowing that there was a pending 2.206 petition 15 stating that Georgia Power Company had illegally transferred 1C control of its license, a petition that had been filed many 17 years, I believe, prior to today, 1988, there was no 18 licensing proceedings initiated.
19 It's my understanding NRC staff put pressure on 20 Georgia Power Company to get to this day to file it, but we 21 are looking at what we consider to be the conduct of the 22 Southern system, how it created Sonopco, the legal and 23 illegal methods used to wrench tbo control of Plant Vogtle-24 from the daily management back in 1988 until this day.
25 And if you look at it from that perspective, you O
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I will see that every line of management from the current 2
Plant Manager to the highest levels of Sonopco were not in 3
place at the time.
They were all hand-chosen and, in our 4
opinion, allowed to take control of the plant as the Sonopco 5
organization.
6 They put Sonopeo in place and it began operating 7
with carte blanche authority back in 1988.
8 CHAIRMAN BLOCH:
And you're saying also illegally.
9 MR. KOHH:
Illegally.
10 CHAIRMAN BLOCH:
I understand that.
Now, I'd like 11 to interrupt you for just a second.
I don't want the staff 12 to argue, but I would like to ask the staff whether it's 13 going to be abic to say whether or not the present form of 14 organization is authorized by the current license.
15 Is the staff going to be able to say that?
16 MR. BARTH:
We'll be able to answer the question.
17 CHAIRMAN BLOCH:
You are going to be able to 18 answer that question.
That's not something deferred until 19 the investigation is over.
20 MR. REIS:
We cannot say, Your Honor.
We cannot 21 say at this point.
22 MR. BARTH:
Are you talking about positions and 23 who reports where?
We're not talking about the individual 24 characters themselves.
25 MR. BLAKE:
Mr. Chairman, could I ask for a two-O ANN RILEY & ASSOCIATES, Ltd.
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minute break?
2 CilAIRMAN BLOCll Sure.
Could you give me some 3
hint of why you need a two-minute break?
4 MR. KOHN:
Yes.
I want to talk with the NRC 5
staff.
6 Cl! AIRMAN BLOCH:
Okay.
7 (Discussion off the record.]
8 Cl! AIRMAN BLOCil:
Back on the record.
I'd like to 9
state that what I --
10 MR. REIS:
Excuse me, Your lionor.
When you say no 11 significant hazards consideration, that means the letter of 12 October 23, 1990 not to take immediate action on the 2206 13 petition, not that it involves in any way -- that's right.
(
14 Okay.
15 CilAIRMAN BLOCil:
Is that the no significant 16 hazards determination referred to in the Federal Register 17 MR. BLAKE:
No, sir.
18 CllAIRMAN BLOCH:
That, I take it, is still in l
19 effect.
20 MR. REIS:
That's still in effect.
21 CilAIRMAN BLOCH:
Even though the amendment hasn't l
22 been issued, the staff has determined that there is no l
23 significant hazards from the amendment.
24 MR. BLAKE:
It's made a preliminary determination, 25 but it has not yet --
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MR. REIS:
A preliminary determination, but which 2
is not a final determination.
3 CilAIRMAN BLOCll:
Okay.
It was issued for comment.
4 MR. REIS:
That's right.
5 CilAIRMAN BLOCH:
Okay.
And the other part of the 6
question was --
7 HR. BARTil:
Your lionor, could I answer your 8
question now that we've consulted among ourselves?
I'll 9
give you the answer which does represent our view.
That is 10 that the staff does not now have an opinion as to whether 11 Georgia Power company is operating the plant and conforming 12 with its operating license and its technical specifications.
13 We just have no view of that.
14 CHAIRMAN BLOCH:
And the other thing I ascertained 15 was that the amendment has not been issued.
16 MR. REIS:
That's right.
17 MR. BARTH:
Correct, Your lionor.
18 MR. LAMBERSKI:
Your Honor, I'll ask the Board to 19 just take notice of the fact that the allegations of which 20 give rise to this concern expressed by Mr. Kohn have been 21 before the Commission for over two years now.
22 CHAIRMAN BLOCH:
Okay.
Mr. Kohn, have you further 23 argument?
24 MR. KOHN:
Some, Your lionor.
How we are viewing 25 this licensing proceeding is that Georgia Power Company --
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excuse me -- the Southern company took action to create the 2
Southern Nuclear operating Company and allowed that 3
organization to run Georgia power company's nuclear power 4
plant in violation of its license, and the violation 5
commenced in 1988.
6 As a course of that conduct, what occurred from 7
Mr. Mosbaugh's perspectivo as Assistant General Manager at 8
the plant sito is that management began a now corporate 9
milieu, infested the plant.
Management began to risk the 10 nafe operation of that facility and Mr. Mosbaugh became so 11 concerned that he initiated criminal proceedings against --
12 or initiated -- contactoi the offico of Investigations in 13 the hopes that criminal investigations would start to unfold 14 at the plant.
15 CilAIRMAt! DLOCil:
So the argument is twofold; that 16 the change in the organization was illegal and that it 17 produced adverso safety consequences on the way the plant 18 was being handled.
19 MR. KollN t That's correct.
And those adverso 20 safety consequences includo site area emergency, the 21 response to the site area emorgency.
Statements made by the 22 highest levels of Sonopco management before and after the 23 site area emergency indicating that they were willing to 24 risk -- to increase the safety risk of the operation of the 25 facility, indicating in statements made to --
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CilAIRMAN BI4CH:
There's a lot of allegations and 2
I've read them.
They're in your brief.
And, clearly, if 3
that's relevant, you don't have to prove that today.
You 4
just have to have a basis.
5 MR. KOHN And I guess to put it in perspective, 6
we look at it as if you look at the way the applicant wishes 7
to frame the issue, tomorrow everyone who is in there is in 8
place and the only thing we're going to do is erase Georgia 9
Power Company's name and write someone else's name to these 10 exact same managers.
11 That is not what is before this Board.
What is 12 before this Board would be the equivalent of if Georgia 13 Power Company took some action in the operation of its 14 plant, changed the technical specification which adversely 15 affected the safety of the plant, operated the plant for two 16 years or four years now in with that, and then came and said 17 the plant is safe because it has now operated four years 18 without an accident and, therefore, you -- this Board does 19 not have the authority to grant the ratition because it's 20 already a fait accompli, that puts us in the position of 21 trying to argue the last minute second of --
22 CllAIRMAN BLOCH:
You think we're being asked to 23 ratify a legal action.
24 MR. KOHN:
An illegal action, yes.
And this is 25 the only time under the proceeding structure before the NRC l
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I that we have standing to do so.
2 CHAIRMAN BLOCH:
Thank you.
Mr. Blake or Mr.
3 Lamberski?
4 MR. BLAKE:
Judge Bloch, I'm going to start and 5
give an overview of particularly the answer to your initial 6
question on this round, and then I'm going to ask Mr.
7 Lamberski to refer to some of the specifics of past events j
8 that counsel for the Petitioner has referred to.
9 You first asked Petitioner what is it about the 10 regulations, if you can tell us, has been violated here and 11 you asked for a reference to the regulations.
The reference 12 was to 50.34 (6) (i), which is a reference to the adequacy of l
13 an applicant's final safety analysis report.
(
14 It doesn't have anything to do with the license or 15 the technical specifications.
It says that in your final 16 safety analysis report, you have to adequately set out the 17 applicant's organizational structure, allocation of id responsibilities and authorities, personal qualifications.
19 To the best of my knowledge, we have done that.
20 CHAIRMAN BLOCH:
Does the license cover any line 21 of authority to Southern Nuclear Company?
Was that in the l
22 organizational chart filed with the license?
l 23 MR. BLAKE:
Well, the organizational charts in 24 various licenses in this country have taken different forms.
25 Some of been, in the past, a good deal more detailed than O
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/~(
1 now exist.
What the NRC found was with very detailed 2
organizational structures set out in charts like we've done 3
for the purpose of all the parties so we'd have something to 4
refer to today, that when they did that, it bound the 5
individual licensees.
6 Every tiac they wanted to make a small change in 7
the organization, they needed to get a formal license 8
amendment change.
And so the HRC changed that general 9
approach to licensing to allow and require general 10 descriptions of the organization, but not this level of 11 precision with regard to organization.
12 CliAIRMAN BLOCll:
I can appreciate that that's 13 something of an abeyance, but it seems here that there's an 14 interrelationship with another entity and that wouldn't seem 15 to be the kind of fine detail you'd leave out.
16 Is the interrelationship with this other entity at 17 all disclosed in the license?
18 MR. BLAKE:
It is -- just a moment.
In the 19 license itself, there is no present reference, I'm informed, 20 to the Southern Nuclear Operating Company.
21 Cl! AIRMAN BLoCil:
Is there any formal way in which 22 the NRC was informed or agreed to that kind of 23 organizational structure?
24 MR. BLAKE:
Well, the NRC is well aware and, until 25 today, I would have sworn had accepted each of the changes O
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I which this licensed entity, Georgia Power, has gone through 2
over the last several years to incorporate the Sonopco, the 3
Southern Nuclear Operating Company services into support for 4
the Vogtle Plant.
5 See, there are other plants in this system.
6 There's the Parley Plant, which used to be Alabama Power's, 7
run by Alabama Power, and now is run formally by Southern 8
Nuclear Operating.
There are the Hatch units, which are, in 9
timing, similar to what we're doing with respect to Vogtle.
10 And there is in place now as a support 11 organization the E;uthern Nuclear Operating Company's 12 organization in Birmingham which is supporting, just as 13 other organizations support, the operational aspects of a 14 plant.
15 But the operational aspects continue to be 16 accomplished by and licensed to be accomplished by Georgia 17 Power Company, and that's why these individuals --
18 CHAIRMAN BLOCH:
That's true, but there is also 19 dual supervision, isn't there?
They don't have sole 20 supervision of the employees who are responsible for this 21 operation.
22 MR. BLAKE:
The Georgia Power officials reflected 23 on this chart have sole supervision over the Georgia Power 24 employees who are operating the Vogtle Plant.
The fact that 25 they have -- hold an office in another organization, to the O
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best of my knowledge, is not a violation of any NRC law or 2
regulation or policy.
3 MR. BARTH:
We agree with that, Your Honor.
4 CIIAIRMAN BLOCH:
I guess I'm interested in knowing 5
whether any of the payments to the Executive Vice President 6
come from SNC.
Are all of his payments from Georgia Power?
7 MR. LAMBERSKI:
Just a moment.
Your Honor, I am 8
informed that the compensation for the Georgia Power 9
Executive Vice President is paid by way of a -- let me back 10 up one second.
The compensation for the Georgia Power 11 Executive Vice President and Southern Nuclear President and 12 CEO, who is the same individual, is paid by a single check 13 issued by Southern Nuclear.
14 However, Southern Nuclear then bills back Georgia 15 Power, if you will, for the share of -- for Georgia Power's 16 share of his compensation, pursuant to a shared employment 17 agreement between the companies.
18 CHAIRMAN BLOCH:
My concern is whether this -- I 19 guess the staff is going to tell me that the change that 20 involves this other entity is not a violation of the 21 license, because that seems to be what they just said.
22 MR. LAMBERSKI:
I hope so, Your Honor.
23 CHAIRMAN BLOCH:
It's curious to me that you'd 24 have to put a whole structure of management in a license and 25 that there could be another entity that has to do with it ANN RILEY & ASSOCIATES, Ltd.
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1 that isn't mentioned.
That just seems like a strange way to 2
disclose on a license what you're doing.
3 MR. BLAKE:
The disclosure is not purely on the 4
license itself.
There's a lot of communication with the 5
staff which is not -- doesn't rise to the formal need to be 6
reflected in a license amendment.
7 That's really what brings us here today, just as 8
Mr. Kohn referred to.
We cannot change over to this new 9
entity.
10 CHAIRMAN BLOCH:
Why couldn't you change over to 11 the new entity just the same way as you'd put it in this 12 other entity which is halfway in?
Why couldn't you put it 13 all the way in without amending the license?
14 MR. BLAKE:
For the same reason, and this isn't so-l 15 far away, that if Georgia Power changed its name to Georgia 16 Nuclear, it would require a license amendment because the 17 license itself refers to, by name, the entity who is 18 licensed to do the work and is only licensed as certain 19 entities.
20 And the licensed entity to operate this power f
21 plant now is the Georgia Power Company, i
22 CHAIRMAN BLOCH:
But isn't it the case that l
23 there's -- there is, at least on the present chart, the 24 possibility that some -- in some ways, the Georgia Power 25 Company Executive Vice President might respond to a Board of O
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1 Directors that's not on the license?
2 MR. LAMBERSKI:
Your Honor, I would answer that 3
question with an emphatic no.
The Southern Nuclear 4
President and CEO will respond to the Board of Directors at 5
Southern Nuclear on matters affecting the Southern Nuclear 6
Operating Company.
He does not report to the Board of 7
Directors of Southern Nuclear concerning matters affecting 8
Georgia Power, which include operation, which include 9
performance of licensed activities at Plants Hatch and 10 Vogtle, and include matters affecting Georgia Power Company 11 employees.
12 CHAIRMAN BLOCH:
Does that mean he never talks to 13 the Board about anything having to do with Georgia Power?
14 He never talks to the Board of Directors of SNC about 15 anything that has to do with Georgia Power.
Is that what 16 happens?
17 MR. LAMBERSKI:
Well, I wouldn't answer that 18 question affirmatively, Your Honor.
I'm sure that there is 19 some communication about what's going on in the system 20 that's been circulated among all of the system CEOs.
21 CHAIRMAN BLOCH:
At the very least, he cares about 22 their opinion.
He works with them.
He must care about 23 their opinion.
They must have some possibility of 24 influencing him, maybe for the better.
But aren't they a 25 part of the structure here that you'd think is at a very O
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things that you're not putting in a license?
3 And are we, in part, being asked to ratify 4
something that changed without a formal incorporation in the 5
license?
So that really what we should compare is what the 6
argument is here from Intervenor, from Petitioner, is that 7
we should compare the license before Sonopco was involved 8
because that's all the license has to do with to this new 9
thing where Southern Nuclear Corporation will be involved?
10 It's not fair to just take the present status 11 which hasn't been incorporated in the license and compare 12 that to what will happen if we have a Southern Nuclear on 13 the license.
14 MR. LAMBERSKI:
Your Honor, let me say that the 15 present status is in compliance with NRC regulations.
It is 16 in compliance with the license.
It is, in fact, described 17 current as of June 1992, I am informed, in the facility --
18 the updated facility safety analysis report.
19 There are numerous documents evidencing 20 discussions between the licensee and the NRC staff 21 concerning the formation of the company.
22 I think what Your Honor is asking is is there 23 something going on here that while on its face is legal and 24 perfectly in compliance with the licensing rules, 25 regulations and orders of the NRC, but otherwise is improper O
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1 and in violation of the laws somehow.
2 And in that connection, Your Honor, I would say 3
that that is not the scope of this proceeding.
4 CHAIRMAN BLOCH:
It's possible that the staff has 5
gone along with something that they shouldn't have gone 6
along with.
That has happened in the past.
And, therefore, 7
there could be a change from something that was legal to 8
something that they're just living with and now Petitioners-9 are saying don't ratify that.
10 The other thing I could ask is what's the harm of 11 staying with the present situation where the only difference 12 is that Mr. Dahlberg is in the loop?
What's the harm of 13 that, at least during the time that we might wait to find 14 out whether the staff can take more of a position in this 15 proceeding?
16 Is there real harm to you in keeping Mr. Dahlberg 17 in the loop?
18 MR. LAMBERSKI:
Let me say, first of all, Your 19 Honor, that Mr. Dahlberg will be in the loop.
Mr. Dahlberg 20 is a member of the Board of Southern Nuclear Operating 21 Company.
22 CHAIRMAN BLOCH:
Okay.
But in his present 23 capacity as President of Georgia Power, what's the harm if, 24 during a delay period of waiting for the results of the 25 investigation, what's the harm to the licensee?
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1 MR. LAMBERSKI:
There are several reasons, Your 2
Honor, why the applicant urges that there not be a lengthy 3
delay in the issuance of a license amendment.
4 One is that the company has already notified 5
permitting agencies, such as the Georgia Environmental 6
Protection Division, of the impending change and requested a 7
transfer of the permits in that regard.
There will be a new 8
collective bargaining agreement negotiated between Georgia 9
Power and Local IBEW Union early this year.
10 It would be more beneficial to Southern Nuclear to 11 be able to negotiate its own collective bargaining agreement 12 as the operator of the plant.
13 CHAIRMAN BLOCH:
Because what?
There might be 14 some disparity between -- some kind of disparity between 15 what they get the one way rather than the -- I'm not sure 16 what that is in terms of a reason to go forward now.
Why 17 does it matter whether Southern Nuclear is the bargaining 18 agent or Georgia Power?
19 MR. LAMBERSKI:
Your Honor, I can't give you 20 specific details as to why --
21 CHAIRMAN BLOCH:
You just prefer it that way.
22 That's for business purposes.
23 MR. LAMBERSKI:
No, no.
I understand that 24 Southern Nuclear's position is that it believes it can get 25 more favorable terms by negotiating an agreement on its own.
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1 If it is not licensed as the operating licensee before the 2
time that this new agreement is negotiated, it will have to 3
abide by the agreement negotiated by Georgia Power Company 4
for all of its facilities, nuclear and non-nuclear.
5 CHAIRMAN BLOCH:
There's a difference there, 6
that's for sure.
Would you like to continue the argument?
7 I have interrupted it with this concern.
8 MR. LAMBERSKI:
That's quite all right, Your 9
Honor.
I'll continue.
There has been a delay to this point 10 in time in moving to Phase III which has hindered the 11 benefits that the applicant and its co-owners would realize 12 from moving into Phase III.
13 Having all of the employees under a single set of O)
(_
14 administrative policies and procedures is more desirable 15 than having to deal with two sets of different policies and 16 procedures.
The company's public information groups right 17 now are split in two groups, a Georgia Power group-and a 18 Southern Nuclear group, which tends to lead to confusion 19 among who is speaking for the companies.
20 CHAIRMAN BLoCH:
Let me ask you is it only the 21 joint officers who get their checks from Southern Nuclear or 22 does everybody in the organization get their checks from 23 Southern Nuclear?
24 MR. LAMBERSKI:
I believe, Your Honor, it's only-l 25 the Southern Nuclear employees and the joint Southern l
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1 Nuclear / Georgia Power employees, but I would have to confirm 2
that with the folks here today.
If you'd like, I can do 3
that if you'll give me two minutes.
4 CHAIRMAN BLOCH:
I guess it would help to know 5
what the real change is that we're talking about and whether 6
a lot of it has occurred before.
I guess it wouldn't help 7
me to know whether or not the change should have been a 8
change in the license or whether it could be done informally 9
with the staff.
10 MR. LAMBERSKI:
Your Honor, what I stated 11 previously was correct.
Now, I'm not quite sure I 12 understand what the full breadth of your question was.
13 CHAIRMAN BLOCH:
I was wondering whether or not, 14 in fact, all the checks were being issued by Southern 15 Nuclear as they might be after the change.
16 MR. LAMBERSKI:
No, they.are not.
1 17 CHAIRMAN BLoCH:
I guess as I was talking before 18 it occurred to me that what we need to know most is if 19 there's any precedent to know whether or not this change of 20 form should have been in the license or not.
How would we 21 know whether it's a change of importance and gravity enough 22 to change a license as opposed to being done informally?
23 MR. REIS:
Your Honor, can I speak to the NRC 24 practice on that?
When the name of an operator of a nuclear 25 plant -- when the formal operator to who we look to payments O
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1 and the keeping safety operation, maintenance and so forth 2
changes, we look to them to come and tell us and ask for a 3
license amendment to do that, and we have changed that name.
4 For instance, recently, in the Seabrook license, l
5 it was changed to North Atlantic Energy Operating 6
Corporation, which is a subsidiary of Northeast Power.
The 7
operator named on the license was that.
8 That's the usual way.
Now, aside from that, in 9
FSAR that is submitted at the time of licensing, for 10 licensing, there are requirements in the regulations that it 11 be updated.
The extent to which it has to be updated and 12 the amount of updating and whether it is not proper now I 13 can't tell from the pleadings at this point.
f 14 The requirement for updating was in a regulation 15 that nobody has cited yet, and that's 50.71(e), which 16 requires that, generally, the FSAR be updated and submitted 17 to us as an updated document.
I forget the schedule.
It's 18 not too often, though.
19 CHAIRMAN BLoCH:
That's the likely place this 20 would occur rather than amendment to the license.
It would 21 be a change in the FSAR.
22 MR. REIS: 'Right.
But, in addition, that's for 23 how the flow is within-the organization.
That's the l
24 organizational charts and it's only to the extent that those 25 organizational charts were in the original FSAR that they ANN RILEY & ASSOCIATES, Ltd.
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I have to be changed.
1 2
If they weren't in there, weren't shown in there, j
3 they don't have to be changed.
Now, if they are hiring 4
somebody else as an operator or changing the name of an 5
operator, just a legal change of name, and we've had that in 6
the past, too, where a corporation does nothing more than 7
change its name as the operator, they have to come and tell 8
us that and that is changed in the license.
9 And that indicates also to us -- I don't know 10 whether the FSAR 1 guess is updated in the next cycle to 11 reflect that, as well.
But the change is then made in the 12 license at that time when they change'their name or change 13 the operator.
14 Here, as Mr. Kohn has said, they're all the 15 Southern system, they're all the Southern Corporation.
I 16 don't know in looking at all this -- we have -- certainly, 17 we don't have any -- at this level, any prohibition that I 18 know of on dual employment.
There is such a thing as a 19 conflict of interest or something, but I don't see that.
20 And I don't see the fact that somebody takes 21 another job or goes to work and does something for a 22 subsidiary, a different subsidiary of the same parent, as 23 any organizational change that was illegal in the questions 24 you asked before.
25 Now, the other thing that --
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1 CHAIRMAN BLOCH:
I would suggest you would 2
automatically if you knew that the other entity had a very 3
bad safety record.
If you knew, for example, that they just 4
had a plant that they lost and they were found at fault, you 5
wouldn't want dual responsibility to those people, 6
Here we haven't even inquired over who those 7
people are.
They may be great people.
There may be no 8
reason to worry.
But isn't that the time when we want to 9
have a license inquiry, when someone new gets involved in an 10 important way in the operation of a plant?
11 MR. REIS:
Here -- you know, you asked the 12 question -- Mr. Barth will have a difficult task 13 demonstrating that the transfer operation would cause 14 increase risks to his health and safety, and that's from 15 your original thing.
16 As I read the original petition that came in in 17 that connection, the names are all the same.
He just says-18 these names went to work for a different subsidiary.
19 CHAIRMAN BLOCH:
Yes, but the amendment to 20 petition makes clear what he's worried about, which is that 21 there was a change in management at the time that they 22 changed to the Sonopco form.
23 What I'm struggling with is what is the' issue 24 here.
What is the change that I'm supposed to look at and 25 the Board is supposed to look at from what to what?
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MR. REIS:
I don't understand either.
2 CHAIRMAN BLOCH:
Well, I'm going to have to decide 3
somehow.
4 MR. REIS:
That's my problem, too, in trying to l
5 answer this.
There is an allegation -- I guess he said how 6
things at the plants are handled differently.
That's -- Mr.
7 Kohn said that.
8 And I don't see whether they would be handled 9
different, whether it was called -- whether it was all 10 called Georgia Power or all called Sonopco is any -- that is 11 not the difference.
12 CHAIRMAN BLOCH:
Yes, that's right.
He would 13 agree with that.
14 MR. REIS:
A rose is a rose.
15 CHAIRMAN BLOCH:
He would agree with that, but 16 he's saying that something happened earlier that I'm now --
17 the Board is being-asked to authorize, and went halfway-18 there.
19 MR. REIS:
If he's talking about something that 20 went earlier, he is not talking about this license
-21 amendment.
He's talking about some kind of a violation, an 22 intangible violation, a change in corporate culture under 23 the Southern Corporation that happened earlier, that was a 24 change, but it's not this amendment.
25 CHAIRMAN BLOCH:
Well, that does depend, I think, O
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1 on whether or not there should have been a change in the 1
2 FSAR or the license earlier; whether we're actually being 3
asked to authorize something now by way of ratification.
4 MR. REIS:
And it doesn't matter whether -- if 5
that change occurred under Georgia Power and is continuing 6
under Sonopco, there is no change.
7 CHAIRMAN BLOCH:
Well, if we issued the license 8
authorizing this new form and the staff then became 9
dissatisfied with the form that was existing in between, the 10 staff would have to what?
Require that the license be 11 changed back to the old one so that Georgia Power is 12 responsible.
13 MR. BARTH:
Between what, Your Honor?
The license 14 will be signed.
You're talking a millionth of a second 15 while he scribbles his name on it.
So what's the between?
16 CHAIRMAN BLOCH:
I'll tell you we could require 17 the issuance of this license if the staff hasn't issued it 16 before we get to that decision point.
At that point, it's 19 possible that the staff would not be happy with that.
20 MR. BARTH:
I'm not certain you can require it.
I 21 think that Offshore Power says you can't direct the 22 operations of the staff and its technical work, Your Honor.
23 CHAIRMAN BLOCH:
The question is whether we could 24 require it within the scope of our proceeding, subject to 25 other technical problems that the staff might have in the O
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safety of what's being done.
2 I'm honestly confused.
I hope I've portrayed the 3
confusion.
I really am honestly confused.
4 MR. KoHH:
.Your Honor, our position, I guess, from 5
a logical framework is there is a transfer of control of the 6
license going on.
It is inherently logical that it should 7
be improper to trarsfer a license to individuals who, in 8
fact, may have engaged in criminal conduct in the operation 9
of a nuclear facility.
10 And what the licensee is requesting is, for the 11 first time in the history of the NRC, to transfer control of 12 operations formally, ratifying this new management structure 13 with the possibility that the entire management structure 14 may have engaged in criminal conduct before the NRC.
15 And that is so repugnant to Petitioner's 16 perspective that that is the primary goal of the 17 intervention.
What signal does it send to the entire 18 workforce at Plant Vogtle when they now start receiving 19 checks at some stage, in Phase III or whatever it is, from 20 Southern Nuclear, when they are told or when they see that 21 management can do in the fairest conduct without' licensing 22 consequences.
23 And it's important for the regulation of the 24 entire industry that licensing consequences stem from the 25 kind of conduct alleged in this proceeding, the underlying
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conduct.
2 MR. REIS:
That's the very -- that's the reason 3
why we ask that this -- we cannot take a position on that 4
and that's why we ask for a delay at this point.
5 CHAIRMAN BLOCH:
That was the reason I was asking 6
these questions.
You see, if tne only thing that's 7
happening is what Georgia Power is arguing here, which is a 8
change from Phase II, which is authorized, to Phase III, 9
then almost nothing is happening and I don't understand why 10 the investigation is relevant.
11 But if, in fact, you're authorizing something more 12 than the movement from Phase II to Phase III, I could see 13 why there is a reason to wait.
14 MR. REIS:
Your Honor, as we mention in a 15 footnote, our position is that character is relevant in the 16 connection with the licensee.
If there were actions that 17 they should not have taken, it will become relevant in our 18 determination whether to allow this, as well; whether the 19 2206 should be granted, whether the amendment should be 20 granted.
21 CHAIRMAN BLOCH:
So character should be relevant 22 to our determination, in the staff's view.
23 MR. REIS:
Yes.
And that's exactly --
l 24 CHAIRMAN BLOCH:
And, therefore, the outcome of 25 this criminal matter is important for that.
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MR. REIS:
That's right.
And I cannot talk about 2
that here.
Therefore, we -- and I cannot give leave of the i
3 Board's counsel, as normally done as a party in a 4
proceeding, and, therefore, we ask --
5 CHAIRMAN BLOCH:
How long would we expect the 6
delay to be?
I mean, I had this in another case involving a 7
very small company and we waited for five months and the 8
Justice Department never did anything and they still 1aven't 9
decided what to do, and I don't know why we waited.
10 MR. REIS:
I am informed that it will be six 11 months.
Your Honor, the character is really related to the 12 contentions and not to the standing.
I think we ought to 13 make that point, as well.
14 CHAIRMAN BLOCH:
Well, I'm not sure.
It seems to i
15 me that turning a plant over to some people who are 16 criminally liable for safety violations has safety 17 implications and might have reason to say that the risk is 18 greater than an ordinary nuclear power plant.
19 I don't know why we could say an operating license 20 for building and operating a plant is safer than turning one 21 over to someone who may have criminal problems.
22 MR. REIS:
Because --
23 MR. BARTH:
Your Honor, can I refer you to Page 7 24 of your November 17 order?
Did not show a reasonable 25 scenario through which the amendment could produce an O
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injury, and we keep coming back to that.
He's got to show 2
something --
3 CHAIRMAN BLOCH:
They had one that actually 4
occurred.
They argue that there was lying to the NRC about 5
diesel generators and the plant went up to power when it 6
shouldn't have.
That's a reasonable scenario.
It's a 7
tangible one.
It's not one.nat's made up.
8 MR. BARTH:
That will not be an effect of the 9
license amendment which is before you which is confined by 10 the notice in the Federal Register.
It demarcs the limits 11 by which this Board can assert authority.
12 CHAIRMAN BLOCH:
Why is that?
13 MR. BARTH' He's talking about a 1988 occurrence.
(
14 CHAIRMAN BLOCH:
It's not an effect.
I don't 15 understand why we should delay it all.
It seems to me that 16 what you're arguing is that we shouldn't delay.
We should 17 decide that even if the men who are running the plant are 18 criminal, we should turn it over to them because the 19 amendment doesn't have anything to do with that.
They're 20 running it now.
21 MR. BARTH:
I think that over exaggerates it.
I 22 think that we would prefer your language, also in your order 23 on Page 5, because the new arrangement is less safe than 24 existing.
That's wnat we're here to decide; is the -- does 25 he have a provable injury which could make him less safe if g
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I this amendment goes through.
That's the standing issue.
()
2 MR. KOHN:
We say less safe than what should be in 3
place, not -- if the current one is, in fact, illegal, then 4
5 CHAIRMAN BLOCH:
We should not change the license 6
to ratify a present management which should not have control 7
of the plant; that the structure which is now in existence 8
should be considered illegal.
It wasn't considered by the 9
NRC before it took effect and it was a degrading of the 10 whole safety environment of the plant and we shouldn't 11 ratify that.
That's their argument.
12 MR. REIS:
In that sense, Your Honor, the staff is 13 trying to walk a line here.
As we have said in our 14 pleading, we cannot say whether that is.
We look to that 15 going more to the -- whether the contentions should be 16 admitted rather than to standing.
17 And we still think that they have not set out in 18 their pleadings a causal connection fairly traceable to the 19 challenged action.
In other words, they don't show that 20 this -- that -- or that a denial of the amendment, also the 21 question of should the amendment be denied, would that put 22 them in any better posture.
23 CHAIRMAN BLOCH:
I'm a little puzzled why the 24 staff hasn't issued the amendment.
It seems to me you're 25 saying there's really nothing to it.
The only real question ANN RlLEY & ASSOCIATES, Ltd.
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is whether you're going to have to do something about this 2
crime, and it's not relevant to the amendment.
3 MR. REIS:
We're going to look very carefully at 4
the character and we can't pass on the character until such 5
time --
6 CHAIRMAN BLOCH:
If character is important, it's 7
because we shouldn't be authorizing a turnover to -- the 8
character of whom?
Only the new people?
9 MR. REIS:
It's the character of the new people 10 who will continue in place, who are the old people who are 11 continuing in place.
12 CHAIRMAN BLOCH:
So the character of the 13 continuing people is important, also.
14 MR. REIS:
That's right.
The character of the 15 continuing people is important and that is what we cannot 16 speak to.
17 CHAIRMAN BLOCH:
So the question in terms of harm 1
18 is whether or not authorizing a license which will have s
these continuing people in an organizational capacity causes 19 i
[
20 harm to Mr. Mosbaugh.
21 MR. BARTH:
No, Your Honor.
Causes an increased 22 risk.
23 CHAIRMAN BLOCH:
An increased risk of injury.
24 MR. BARTH:
Increased.
25 CHAIRMAN BLOCH:
But now the question is increased
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1 over what.
Increased over the situation before Southern 2
Nuclear became involved as joint supervisor or the present 3
situation.
4 MR. BARTH:
Increased over the structure which now 5
exists at the facility.
We're talking about the plant and 6
its operation.
7 CHAIRMAN BLOCH:
Maybe Mr. Blake can --
8 MR. BLAKE:
I don't want to leave any doubt about 9
our position.
We believe that we have totally complied with 10 NRC regulations and policy and precedent with respect to 11 notice to the NRC and not making one change which is not 12 authorized.
13 We believe the current organization under which 14 GPC, Leorgia Power, is the licensed operator and where the 15 individuals hold joint officer roles in more than one 16 organization is appropriate.
We believe we've given 17 appropriate notice to the NRC of the way in which we're 18 operating and we -- until today, I would not have even 19 guessed there was a doubt in the NRC's mind about the 20 appropriateness of the structure which exists out there.
21 I am not going to individual acts of individual 22 people who are currently there and will be there in the 23 future in the same positions, albeit with a different title, 24 if this amendment is authorized.
l 25 But I do not believe that the NRC has any problem O
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with the existing structural organization and its adequacy 2
under the current license.
3 MR. REIS:
Your Honor, that --
4 MR. BLAKE:
It is unbelievable to me that the NRC 5
6 MR. REIS:
Let me --
7 MR. BLAKE:
May I finish?
8 CHAIRMAN BLOCH:
Let Mr. Blake finish, please, and 9
then you can speak.
10 MR. BIAKE:
It is unbelievable to me that the NRC 11 would allow the organization to continue, and this is not 12 the first time.
This approach of changing to a common 13 nuclear entity within one of these holding company systems, 14 which is being done here in the Southern system, is not-the 15 first time it's being done.
16 It was done on the Entergy system, which used to 17 be Middle South.
It was done on the GPU system, where each 18 of these entities, for purposes of more efficient and 19 effective operations, they believed, formed a nuclear new 20 subsidiary and put each of their nuclear plants in its 21 service organizations under that entity.
22 And the approach that's been taken here is exactly 23 the approach which, to the best of my knowledge, I set it up 24 first in the GPU and then Entergy followed suit and then 25 Southern Company has followed here.
I know of no place --
/ 's
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CHAIRMAN BLOCH:
I'd like to know your position on 2
whether character or competence is relevant at all to this 3
type of proceeding.
4 MR. BLAKE:
In this proceeding right here, I do 5
not believe that the Board needs to make a determination 6
about what individuals did two years ago in order to 7
determine whether or not the structure may be changed from 8
the existing GPUC to-the Southern Nuclear entity, because I 9
do not believe that there will be any change at all in the 10 influence of these people over their organization, to the 11 extent there are found to have been faults, or in a change 12 in the caliber of the organizational activities whinh take 13 place.
14 If they were wrong, then they're wrong now and 15 there should be enforcement action taken with respect to 16 them now.
17 CHAIRMAN BLOCH:
Actually, there should be more 18 rapid action taken, I would think, if they've really done 19 something wrong.
20 MR. BLAKE:
That might even be the case, yes.
21 CHAIRMAN BLOCH:
There really should be something 22 done with the operation of the plant if there was something 23 done wrong.
It shouldn't -- that would -- I'm puzzled about 24 that, because that's more important than the criminal 25 action.
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MR. BLAKE:
But I do not -- I agree with you, Your 2
Honor, but I do not see how that impacts what it is we're 3
here to talk about.
And I think that where Mr. Kohn says 4
that the proceeding comes two years too late, it's really 5
not that.
He's trying to bring problems which he had and 6
raised two years ago into the -- sweep it into this 7
proceeding, as well, and I just don't think it belongs here.
8 MR. REIS:
Your Honor, as far as the structure of 9
the organization goes, we're not concerned about the 10 structure of the organization.
It is -- we look at -- when 11 we look at an organization, we look at the character of the 12 organization.
13 If we're going to give an amendment to allow this 14 new organization to take over formally on the license and be 15 named on the license, we want to be assured of the character 16 of the people who are running that organization.
That's 17 required under the Atomic Energy Act.
18 CHAIRMAN BLOCH:
But, Mr. Reis, what they're 19 saying is it will be the same people.
So if the character 20 of the people who are running the plant now is not adequate, 21 you should not only be disapproving the amendment, you 22 should be stopping them from running the plant.
23 MR. REIS:
I can't say at this point.
&4 CHAIRMAN BLOCH:
But it's legitimate for them to 25 run the plant now.
If you're satisfied with their character O
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99 (O) 1 for running the plant now, how do we become dissatisfied 2
with the --
3 MR. REIS:
We have not taken any action to shut 4
that plant down.
I can say that.
li o w e v e r, there is a 5
difference -- there's a strong difference in burden of 6
proof, Your lionor, for one thing.
7 On the issuance of a license, the burden is on the 8
applicant.
On taking a license away, it's on the staff.
9 CHAIRMAN BLOCH:
I'm always interested about 10 burden of proof, because that only applies when things are 11 in exact equal poise and I've never seen it.
It seems to me 12 to be an excuse.
Is he right?
Is Mr. Blake right that 13 there can't be any increased risk from the change in s
14 organizational form because it's the same people?
15 The character is not any more relevant to the new 16 form than to the old one.
Therefore, we should just go 17 ahead and approve the amendment.
18 MR. REIS:
We don't want to take a position 19 because we don't want to do anything to ratify the 20 organization at this time, and we think the criminal 21 investigation should continue on its course so that there 22 would be nothing that appears to ratify the change in the 23 organization, because in the change in the organization, 24 character has to be looked at, even though it appears to us 25 that these are the same people named both times.
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To issue a license amendment and to go forward 2
with the proceeding at this time and its influence on the 3
criminal proceeding would be an indication that the NRC in 4
some way says at that point character was okay in the past 5
and that character can continue into the future.
6 We can't say that at this point because the 7
criminal investigation and proceeding is still going on.
8 CHAIRMAN BLOCH:
Should the Board be receiving any 9
of the information in-camera in order to be able to 10 determine whether or not we should accord -- we should give 11 the staff's motion its due?
Are we supposed to do this on 12 the staff's word?
13 MR. REIS:
I think you can, as officers of the O
k/
14 Board, as attorneys.
15 CHAIRMAN BLOCH:
Would it be better to refer it to 16 the Commission so that they can see everything?
17 MR. REIS:
You could choose to do that.
There is 18 precedent to do that.
On the other hand, the Commission did 19 say, in what we said, that it may pay to delay and it may 20 pay to delay for a while.
We've listened to the applicant 21 to what the harm the applicant would suffer and it doesn't 22 appear there is some intangible harm, maybe a better 23 collective bargaining unit agreement could be made one way 24 or another.
25 They'd like to get their ducks in a row, in O
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1 essence, straighten out the organization.
But there doesn't 2
seem to be any real -- when we weigh one harm against the 3
other, it doesn't seem to, from what they said, that there 4
would be any real harm with delay in this situation.
5 As the Commission pointed to in the statement we 6
cite in our motion, it may be possible to provide for timely 7
consideration derived from investigations and inspections 8
through deferral or rescheduling of issues for hearing, and 9
that's essentially what we said here.
10 We recognize that there may be a case where there 11 is such harm to an organization, but we think that harm 12 would have to be more than the structure they've talked 13 about here.
These are two subsidiaries of the same 14 corporation.
There's no reason why, as being subsidiaries 15 of the same corporation, they cannot act for themselves in 16 this matter before the license is granted to take care of 17 any harm that may be possible.
18 CHAIRMAN BLOCH:
I'd like to ask Mr. Mosbaugh what 19 the -- Mr. Mosbaugh's attorney what the harm to.him is if we 20 delay, since it looks like you have the same management 21 whether we delay or not.
22 MR. KOHN:
Your Honor, we do not oppose staff's 23 request for a delay.
24 CHAIRMAN BLOCH:
Is there anything that's 25 important to be said here?
I don't know that we've reached b
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any neat tying of ends here.
But is there anything that 2
hasn't been said that really must be said?
The arguments 3
seem to have been fully aired.
4 MR. BLAKE:
I would like to point out that what I 5
understood from the NRC staff as their reasons here are 6
discretionary reasons.
They're worried about the 7
appearances and I do not believe they're estopped.
I do not 8
believe they are forbidden from going forward with the 9
issuance of this amendment.
10 CHAIRMAN BLOCH:
Because it won't change who's in 11 control of the plant.
12 MR. BLAKE:
That's correct.
Yes.
13 CHAIRMAN BLOCH:
And the real concern is who is in
.\\
14 control of the plant and not the form of organization.
In 15 fact, everyone said that.
16 MR. BLAKE:
Yes.
I think everyone agrees on that.
17 CHAIRMAN BLOCH:
Okay.
There being no further --
18 Mr. Reis?
19 MR. REIS:
I just wanted to reemphasize and ask 20 the Board to consider very seriously our arguments 21 concerning the showing and sustaining of injury and the 22 necessary -- and whether he makes it, even when we talk 23 about the fact that they were in place before and they will 24 continue to be in place or whether they stay in place, the 25 people.
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Whether he shows the injury --
2 CilAIRMAN B14CH:
What additional harm is there to 3
the public if, in fact, you authorize the amendment -- we 4
authorize the amendment?
What harm is there?
Is there any 5
change over what we've got now?
6 MR. REIS:
If you aut!.orize the amendment?
7 CilAIRMAN BLOCll:
Yes.
Is there any change in 8
public safety?
9 MR. REIS:
Yes.
Tnere could be harm to the 10 public.
11 CilAIRMAN DI4Cil:
llow?
12 MR. REIS:
llow?
It could affect the criminal 13 prosecution.
14 CilAIRMAN BLOCll:
It could affect the criminal 15 prosecution.
16 MR. REIS:
The criminal investigation.
17 CllAIRMAN BLOCH:
Why should I be concerned about 18 that?
That's not relevant to my jurisdiction, is it?
19 MR. REIS:
That's not relevant to your 20 jurisdiction, but the Commission indicated that in such 21 cases that investigations go forward, you can defer in those 22 situations.
23 CHAIRMAN BLOCil Why couldn't I just rule it has 24 nothing to do with an approval of the individuals running 25 the plant?
I could authorize the amendment and say it has O
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nothing to do with approving of them or thinking that the 2
plant is safe.
We have no opinion as to the safety of the 3
plant.
That's up to the staff and the company.
4 MR. REIS:
We still -- we feel very strongly that 5
it will have an adverse affect on the criminal prosecution 6
or the criminal investigation.
There's been no 7
determination that there shall be a prosecution yet.
8 CHAIRMAN BLOCll:
In fact, what we'll be doing is 9
not issuing the amendment.
We would be ruling that the 10 petition has no merit.
11 MR. REIS:
That's -- yes.
Yes.
You could rule 12 that the petition has no merit.
In that sense, you could 13 rule.
I misunderstood you.
I'm sorry, Your lionor.
14 cilAIRMAN BLOCH:
Because there's no redressable 15 grievance.
16 MR. REIS:
That's right.
17 CHAIRMAN BLOCH:
What they really wanted to do was 18 to stop the people who are running the plant from running 19 it, and we have no authority to do that.
Only the staff 20 does.
21 MR. REIS:
That's right.
That's essentially the 22 arguments we made in our answer to the amendment at pages 4 23 and 5.
24 MR. KOHN:
Your Honor, I would like to address 25 that issue.
What we're looking at and as I was trying --
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1 and I'd like to make clear is that after Georgia Power 2
Company and Sonopco management new of pending OI 3
investigations into criminal wrongdoing on the submission of 4
material false statements and licensing event reports and 5
things of that nature, there is evidence in the possession 6
of the NRC which will conclusively establish that the 7
highest ranking managers were advising lower level B
management that it's all right to mislead the NRC.
9 CHAIRMAN BLOCH:
That's true whether we change it 10 or not, right?
They're there.
11 MR. KOHH:
What you're looking at, the harm to the 12 public, is the question.
The harm to the public is that the 13 industry and people at Georgia Power Company in the lower 14 levels of management will see that when the pressure is put 15 on, maybe you should listen to what your supervisors are 16 saying because there are no licensing effects.
17 CHAIRMAN BLOCH:
Suppose we deny the amendment, 18 and so the same people are in charge of the plant who did 19 these allegedly horrendous things anyway.
What difference 20 does that make to the public?
21 MR. KOHN:
A great difference.
First, it alerts 22 the public of the problem that exists.
Second, it alerts 23 the public to the fact that their current management 24 structure is potentially liable for criminal conduct during 25 the course.
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When additional amendments are filed and other 2
acts are taken, the public may be more inclined to intervene 3
in future proceedings based on the events.
If you allow a 4
major event, such as the transfer of the license to occur 5
without any consequence and look at it in a vacuum, we're i
6 claiming the license was transferred illegally two years 7
ago.
8 That is our allegation and that they are now 9
looking to transfer it and you cannot ratify the illegal 10 conduct -- actually, four years ago -- and you cannot ratify 11 the illegal conduct over the last four years by saying, 12 well, it's all done now and now we're looking at signing a 13 piece of paper.
14 If you sign the piece of paper, you ratify the r
15 conduct for the four years.
That is our position and that 16 the NRC should not be allowed to allow the applicant to do.
17 Cl! AIRMAN BLOCll:
What I propose we do is take a 18 ten-minute break, after which each of the parties will have 19 two minutes.
We may say something at the end of the break i
20 about what the Board wants clarified, but I want to do that 21 because this method of not knowing who is going to speak 22 last-is never going to end.
23 MR. BLAKE:
So it won't be used against my two 24 minutes.
-I wanted the Board to take official notice of some 25 Ohio and Georgia statutes that relate to the standing issue.
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1 CHAIRMAN BLOCH:
Okay.
That conceivably should be 2
something that should be briefod, because I can't imagine 3
that we could ask them to look at them and figure out their 4
relevance and comment on it right now.
5 It seems to me if it's a matter -- and I'm open to 6
the possibility in the last arguments of the parties that we 7
do need some additional briefing.
So we would like to take 8
a ten-minute break.
We'll begin again at 12:00 on that 9
clock.
10
[ Recess.]
11 CHAIRMAN BLOCH:
The hearing is called to order.
12 I will acknowledge that our conference took a little bit 13 longer than we expected.
14 We have two minutes argument from each party to 15 hear.
We have no further questions to ask at this time.
I 16 can tell you that our inclination is also not to ask for any 17 further briefs at this time, but to keep that possibility 18 open, because we're not sure as we sit down to think about 19 these issues whether we will need any further briefs.
20 So you can address in the two minutes you've got 21 also the question of -- let's make it three minutes, three l
22 minutes each, and address in that time whether we should ask l
23 for further briefing, also.
Mr. Kohn.
24 MR. KOHN:
Thank you, Your Honor.
We believe that 25 Mr. Mosbaugh has established standing; that there is an O
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()
1 increased risk associated with the operation of Plant Vogtle 2
and that is directly linked to the insertion of the Southern 3
Nuclear Operating Company into the management structure at 4
Plant Vogtle, and that this management structure was, in our 5
opinion, illegally inserted.
6 It is impossible for us to consider the legal 7
effects -- lot me rephrase that.
It's not impossible.
Wo 8
have an opinion on the legal ramifications.
If it is 9
illegal on Day A, when Day B comes around and it's still 10 illegal, this Board cannot allow the change to take place.
11 It is simply a matter of common sense.
12 If NRC staff did not --
13 CllAIRMAN BLOCll:
We don't have the license 14 languagn and we don't have the regulations.
So how can I 15 conclude it was illegal on the day it took place?
16 MR. KOllN:
Those are documents -- those are public 17 documents, Your lionor, and this Board can take public notice 18 of those documents.
They speak for themselves.
They do not 19 state or mention -- the license does not mention Southern 20 Nuclear Operating Company and I believe that is referenced 21 in our petition.
22 That is the question here.
Can Southern Nuclear 23 begin to operate the plant?
Clearly, they could not begin 24 to operate the plant without -- could not begin to legally 25 operate the plant without a change of the license.
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What we are contending is, in fact, they did begin 2
to illegally operate the plant and are now ex post facto 3
seeking to ratify that conduct with a request for an 4
amendment to the license.
5 The risks began when the management structure took 6
place.
Whether NRC, today or tomorrow, will order Georgia 7
Power Company to restructure is not the issue before this 8
Court.
The issue before this Court is does the management 9
structuro of Sonopco have the competence and integrity to 10 operate a nuclear power plant.
11 And what is the harm to Mr. Mosbaugh?
You have to 12 look at the harm back before the plant was reconfigured into 13 this shape.
Mr. Mosbaugh was Assistant General Manager, had 14 the highest regard and believed that plant was one of the 15 safest run plants in the United States.
16 Today, he has the opposite view.
The harm to Mr.
17 Mosbaugh is that he had confidence in the management 18 structure and that confidence led him to beliese that an 19 accident would not occur.
Today, he no longer has that 20 confidence and believas that an accident -- and, in fact, 21 advised the NRC in writing that an accident was imminent.
22 CHAIRMAN BLOCH:
You've just gone over the three 23 minutes.
I want to ask one more question, though.
Do you j.
24 believe that we have to wait to decide whether there's harm 25 to Mr. Mosbaugh for the staff to be able to disclose what's O
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going on in this investigation?
2 MR. KOllN:
Could you --
3 CilAIRMAN BIDCil Do you believe that on the 4
element of harm needed for standing that we have to wait for 5
the investigation results or for the information that's 6
being kept secret for the investigation?
7 MR. KollN:
No.
I think that if you take the 8
factual statements made in the petition and assume that they 9
are, in fact, true, that that should satisfy the 10 requirements.
11 CllAIRMAN BLOCll:
Okay.
12 MR. BLAKE:
Mr. Chairman, I still want to make a 13 part of the record, ask for my official notice request, and 14 I have provided copies to the staff.
I didn't provide 15 copies yet to the Board.
I did provide copies to the other 16 parties and I will enumerate those sections which I ask that 17 official notice be taken of 18 I don't think there's any question here about 19 relevance.
They all relate to residency requirements and to 20 items, I think, that may be helpful to the Board.
I will 21 enumerate those simply for the record and then I will 22 provide you copies.
23 CHAIRMAN BLOCII:
You think that the official state 24 law on residency requirements should be important for the 25 standing issue before the NRC.
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MR. BIAKE t Yes.
I think it will provide, for 2
example, insights for you, Your lionor, in determining 3
residency and primary residency.
I think it also is 4
important in terms of judging some of the statomonts that 5
have been made.
So I'll provide them for whatever impact 6
the Court --
7 CilAIRMAN BIDCH:
Is there any objection to our 8
taking notice of these codos?
9 MR. Kol!N Yes, Your lionor.
A Board order was 10 issued indicating that documentation should be tendered by 11 January 7.
With this type of documentation, we would have 12 produced additional evidence and testimony from Mr. Mosbaugh j
13 covering these types of issues and going more into the 14 specific intents of these statutes and his understanding of 15 them, whether he's ever read them before.
I think this is 16 late tendered for its purpose of attacking Mr. Mosbaugh's t
l 17 credibility.
18 They're certainly free to cite to any legal 19 statute in briefs, but I don't think for the purpose of 20 attacking Mr. Mosbaugh's credibility they should be 21 admitted.
22 MR. BARTl!!
The staff has no objection to these, 23 Your lionor.
Mr. Mosbaugh's interpretation is really 24 irrelevant.
It's your interpretation.
You're the' lawyer 25 and these are legal statutes and I'm confident you will O
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treat them as such.
So we have no objection to them.
2 CHAIRMAN BIACH:
Okay.
Well, we'll receive them.
3 Whether we're going to take official notico I will decide 4
later.
5 MR. BLAKE Fair enough, and I will provide 6
sufficient copies for the Board and for the --
7 Cl! AIRMAN BLOCH:
Maybe it's not necessary that the 8
Reporter have them.
We can do it the ordinary way of 9
serving documents.
10 MR. BLAKE:
I will provide you today, as soon as 11 we go off the record, with sufficient copies for the Board.
12 I want to enumerate, however, which ones specifically, so 13 that we don't stretch.
14 CHAIRMAN BLOCH:
It might be better to do it as a 15 routine filing within the next couple of days.
16 MR. BLAKE:
Fine.
I can do that, as well, and 17 will do that.
Judge Bloch, in summary of today, we started 18 the day by talking about Mr. Mosbaugh's standing and trying 19 to focus on that issue.
Then we talked about 20 redressability.
We tried to focus on that issue.
21 And we've talked about a number of individual 22 factors, all of which need to play a role in the Board's 23 determination here, in my view.
It will be, in the end, a 24 combination of what his contacts are with this plant and, 25 indeed, what is this amendment made of.
And it's that O
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1 combination of factors which will need to be present for 2
this Petitioner to meet his challenge to show injury, 3
likelihood of injury and some redressability or some 4
abatement of that potential injury if the licensing 5
amendment goes forward.
6 I urge the Board to consider all of those factors 7
because, in our view, it is not -- he does not meet the mark 8
when you consider all those factors in combination.
9 If this amendment goes forward, Mr. Mosbaugh's 10 status vis-a-vis that plant, any potential harm to Mr.
11 Mosbaugh will not be altered, will not be altered.
The 12 concerns that he has, the concerns that, indeed, he has raised before the Department of Labor, before the NRC staff 13 14 and, indeed, for the public are not new today and they're 15 not anything geared or tied to this license amendment.
16 They've been around for several years.
They're 17 exactly the same.
Mr. Kohn has been honest in his 18 indications to the Board in that regard, including saying 19 right now in his summary that the problems that Mr. Mosbaugh 20 has with the organization he believes may be right now 21 imminent danger.
That's his concern.
That's his posture.
22 My position is, and I want the Board to 23 understand, if it's imminent now, it's going to be no more l
24 imminent if the license is issued or not issued, and that 25 simply is the crux of this matter.
,O L
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Thank you.
2 MR. 13ARTH:
Mr. Chairman, I will summarize on 3
behalf of the staff.
I wish you would pay great and 4
considerable attention to your November 17, 1992 memorandum 5
and order establishing this prehearing conference and to the 6
Supreme Court's opinion in 1112 Supreme court 2136, which is 7
the Lujan case.
8 I would like to emphasize that Mr. Mosbaugh must 9
have suffered an injury, in fact.
This is what we first 10 covered.
Is he within the Georgia area in such a way as he 11 could possibly be injured?
It is our view that he lived in 12 Georgia, his family was here, his children were schooled, he 13 had a job.
lie moved to Ohio.
llis wife works in Ohio and i
14 his children go to school in Ohio.
15 We do not think he has sufficient contacts in 16 Georgia to give him that leg of standing, which is only one 17 leg of three, according to the Gupreme Court.
18 The second, Your Honor, he has to sc,mehow show 19 that the contemplated NRC action will result in a harm to 20 him, not to the general public.
We've well finished that 21
- off, lie's not the private Attorney General.
22 lie must show an individualized, non-speculative 23 harm which he has a greater probability of incurring if the 24 licensing action is continued or approved.
We do not think 25 that any modicum or showing of harm has been made.
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1 Third, according to the Supreme Court and your 2
order, too, Your Honor -- God bless you.
There must be --
3 CilAIRMAN BLOCil:
Let the record show that Mr.
4 Barth was talking about Judge Carponter.
5 MR. BARTil t The Chief Judge, too.
You must show 6
that this type of injury is not speculative, that it's real.
7 We have talked about Mr. Dahlberg and what he does.
lie has 8
to show that Mr. Dahlberg, if he stays or goes, is going to 9
increase the risk to Mr. Mosbaugh's personal health and 10 safety.
11 We feel this has not been proven.
I would also 12 end and conclude.
You had a long dialogue with Mr. Reis 13 about issuance of the license.
Your Honor, for Dr. Murley 14 to sign the license requires an affirmative finding of good 15 character under Section 182 of the Atomic Energy Act.
16 That is vastly different than the staff 17 investigating and having questions at the present time.
The 18 staff is not prepared, as Mr. Reis explained to you, to make 19 an affirmative finding today under Section 182 of the Atomic 20 Energy Act.
21 This is why we -- 184, I'm reminded.
And this is 22 why we have not gone forward with the license, as well as 23 the investigation and the related matters at the Department 24 of Justice.
We would think, in our view, you can separate 25 these two matters.
We do not feel that Mr. Mosbaugh has O
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standing to challenge this licensing action.
2 Whether it's appropriato and whether people in the 3
plant are appropriate to operate the plant we feel is a 4
separate matter, which is really not needed to be decided 5
today here and should not be considered.
6 Thank you kindly, Your lionor.
7 CilAIRMAN BLoCil:
I'd like to thank all the 8
participants in today's proceeding and adjourn the 9
proceeding.
If we need further briefs, we'll be in touch 10 with the parties.
Thank you very much.
11
[Whereupon, at 12:15 p.m.,
the hearing was 12 adjourned.
13 14 15 16 17 18 19 20 21 22 23 24 25 O
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REPORTER'S CERTIFICATE O
This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission In the Matter of NAME OF PROCEEDING: coorgia l'over company, et al.
DOCKET NUMBERS 50-424-OLA-3 50-425-OLA-3 PLACE OF PROCEEDING: Aur,usta, Georgia were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
f M/, - ((f..
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Via Fag _ simile. 404-885-3900 John Lamberski, Esq.
Trou man Sanders suite 5200 600 Peachtree Street, N.E.
Atlareta, GA 30304-2216 Ret Stipulations Cor.cerning ASLS Docket Nos. 50-424-OLA-31 50-425-oLA-3 Dear Mr. 74nberskit set out below are the final stipulation of facts we have reached.
please review them for accuracy.
Assuming they are acceptable, I request that you file them with the licensing board and NRC Str.ff counsal.
1.
Mr. Mosbaugh owns a single family structure located at 1701 Kings Court, Grovatown, Colur.bia County, Georgia.
2.
The structure described in paragraph 1 above is located approximately 35 miles, as the crow flies, from Plant Vogtle.
3.
Mr. Mcsbaugh is currently registered to vo' e in Columbia County vote in Columbla, Georgia..He originally registered to County in Oct.ober of 1988.
In preparation for the 1992 general elections, on September 18, 1992, Mr. Mosbaugh registered to vote in Clermont County, Ohio, and he, -in fact, did vote there on November 3,-1992.
The following month, on December 31, 1992, Mr. Mosbaugh re-registered to vote in Columbia County, Georgia.
4.
Mr Mosbaugh has a current nalling address and receives mail at 1701 Kings Court, Grovetown, Georgia.-
5.
Mr. Mosbaugh receives mail at 2692 Boggs Road, Amelia, Ohio.
O Q.
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J oe H -
7~9O FRI i1 850 P.OU O
John Lamberski January 6, 1993 Page 2 6.
Between Cotober 22, 1992 and December 31, 1992, inclusive, sail sent through the United States post office addressed to Mr. Mosbaugh at 1701 Kings court, Crovetown, Georgia was not deliverable.
7.
On December 31, 1992, Mr. Mosbaugh contacted the United States post office and requested that his 1701 Kings Court, Grovetown, Georgia address be reactivated.
8.
Mr. Mosbaugh's spouse and children predoninately reside in Clermont County, Ohio.
9.
Mr. Mosbaugh's children attend school in Ohio.
10.
Mr. Mosbaugh is not coparated (in the legal sense) or divorced from his vite and/or children.
11.
Georgia Power Company's current billing address for Mr.
Mosbaugh is 1701 Xings Court, Grovatown, Georgia.
On October 12, 1992, Mr. Mosbaugh paid his electric bill in person and at that time requested that his billing s
address be changed to 2692 Boggs Road, Amelia, Ohio.
i on December 31, 1992, Mr. Mosbaugh again paid his electric bill in person and at that time requested that his billing address be changed to 1701 Kings Court, Grovetown, Georgia.
12.
Mr. Mosbaugh has not been employed by any employer other than himself within 50 miles of Plant Vogtle since prior to October 22, 1992.
13.
Mr. Mosbaugh has at least one bank account in'the state of Ohio.
14.
Mr. Mosbaugh has at least one bank account in the state of Georgia.
15.
Mr. Mosbaugh maintains a telephone at his 2692 Boggs Road address in Amelia, Ohio with a directory listing in his name.
16.
Mr. Mosbaugh has continuously maintained a telephone at his 1701 Kings Court address in Grovatown, Georgia, with a directory listing in his name.
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.J s:e H 7-9U FR1 11 859 P.04 e
John Lacterski O
January 6, 1993 Page 3 17.
Mr. Mosbaugh was initially licensed to drive by the state of Ohio and has continuously maintained an Ohio state drivers license.
18.
Mr. Mosbaugh has never been issued any other drivers license other than by the state of Ohio and as such has never obtained a Georgia State driver's, license.,
19.
Mr. Mosbaugh's automobile is currently registered and licenced in the State of Georgia; the registration was initially issued on June 28, 1991 and his current registration was issued on July 20, 1992.
Both indicate Mr. Mosbaugh's address as 1701 Kings court, Grovatown, Georgia.
20.
The document attached hereto as Exhibit A is a copy of Mr. Mosbaugh's September 18, 1992 Clermont County, Ohio voter registration application.
Respectfully, ar Michael D.
Kohn 054\\stip.6 l
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