ML19260C672

Reply to Applicant Response to Petitioner Motion to Intervene.Urges Commission to Grant Intervention.Affidavit of Support & Certificate of Svc Encl

ML19260C672
Person / Time
Site:	05000574
Issue date:	12/18/1979
From:	Selbey E COALITION AGAINST REACTOR EXPORTS (COALITION CARE), SELBY, E.N.
To:	NRC COMMISSION (OCM)
References
NUDOCS 8001080282
Download: ML19260C672 (10)

Text

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the matter of

[ Docket No. 110-0495 WESTINGHOUSE ELECTRIC CORPCRATION  : Application No. XR-120

Application No. XCOM-0013 (Exports to the Philippines)  : (Application No. XSNM- g

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REPLY OF INTERVENOR/ PETITIONER & c COALITION AGAINST REACTOR EXPORTS 2 NNo[

(COALTION CARE) TO ANSWER OF h(N d APPLICANT WESTINGHOUSE ELECTRIC I 4 ** f CORPORATION s

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m o Intervenor/ petitioner Coalition Against Reactor Exports (Coalition CARE) hereby makes its Reply to the Answer of Ap-plicant Westinghouse Electric Corporation, and in further sup-port of its previously filed Motion to Intervene respectfully submits:

1. Goed cause exists for the Commission to treat the the Coalition s Motion to Intervene afhavingbeen timely filed.

As Applicant observes in its Answer, when the Ccmmission first published notice of the Application by Westinghouse for a license to export a nuclear utilization facility to the Philippines, the Commission stated:

"In its review of applications solely to author-ize the export of production or utilization facili-ties, the Nuclear Regulatory Commission does not evaluate the health and safety characteristics of the facility to be exported. Consequently, there are no safety analysis ... reports." 17n7 Jon 41 Fed. Reg. 56895. I/UL L0U This announcement was consistent with the Commission's then existing policy not to consider health and safety impacts of reactor exports on foreign populations. See, e.g., Edlow

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International Company, 3 NRC 563, 575, 582, 583 (1976);

Westinghouse Electric Corporation, 3 NRC 739, 754 (1976); see also, Babcock and Wilcox, 5 NRC 1332, 1353 (1977).

However, by order dated October 19, 1979, the Commission consolidated applications nos. XR-120 and XCOM-0013 and invited public submissions on "the precise scope of the Commission's foreign health, safety and environmental jurisdiction and what procedures the Commission should adopt to govern further pro-ceedings" regarding the Philippine export licenses. (P. 3 of Order.) This Order strongly intimated that the Commission was considering a significant and potentially far-reaching revision of its past policies. In view of these changed circumstances, the Coalition promptly moved to intervene within the time limits set by the Commission for submissions in response to its order.

These changed circumstances constitute good cause for the Commission to treat the Coalition's Motion to Intervene as having been timely filed.

2. The Coalition has standing to intervene in Commission proceedings related to the export of a nuclear reactor to the Philippines.

The Coalition has previously described the interests of its members which it will represent in proceedings before the Commission. See page 3 of previously filed Brief, dated Novem-ber 15, 1979. The affidavit of Coalition member David O'Connor, which was appended to that Brief, notes, for example, a long-term contractual interest which may be damaged by the unsafe location, construction or operation of the proposed reactor.

The Coalition now invites the Commission's attention to the affidavit appended to this Reply, in which the property interests

_2_ 1702 281

of an unnamed ! Coalition member are described. These are interests which will be damaged if the Coalition issues the requested licenses to Applicant. These are not mere abstract concerns generally shared by the public at large, but specific and legally cognizable interests which confer standing on the Coalition in the present proceedings before the commission.

(Warth v. Seldin,'422 U.S. 490, 498-499, 500 (1975).)

3. Philippine health and safety issues are within the Commission's jurisdiction; a full review of these issues in a public hearing would be in tee public intere E; the Coalition can assi E tee Commission in such a review, and for these reasons the Commission should not assign representation of the Coalition's interests to other parties.

'In its previously filed Brief, the Coalition demonstrated why the Commission has jurisdiction to consider the impact of the proposed reactor on the health and safety of the Filipino people and the Philippine environment. In its Answer, Applicant 1/

There exists a real danger of retaliation by the Philippine martial law dictatorship against any Filipino who publicly opposes construction of the proposed Napot Point reactor. The Coalition submitted with its Brief and Motion to Intervene a copy of the United States State Department's Report to Congress on Human Rights Practices in the Philip-pines to demonstrate that critics of the martial law govern-ment and its policies are subject to arrest, torture, imprison-ment without trial and even death at the _ hands of the Philippine military. For this reason, the Coalition cannot divulge the names of certain of its members who are Philippine citizens.

The affidavit appended to this Reply is, therefore, meant to serve two purposes. First, it is the Coalition's attorney's sworn statement that a representative member of the Coalition is a Filipino with cognizable legal interests which will be directly damaged by the Commission's issuance to Applicant of the requested licenses. Second, it serves as a reminder to the Commission that there are millions of Filipinos who would publicly state their opposition to the Napot Point reactor were it not for the repressive dictatorship presently in power in the Philippines.

1702 282 fails to address or rebut those arguments, but instead simply relies on past expressions of past Commission policies. As the Coalition demonstrated, these policies nave now been undermined by the Nuclear Non-Proliferation Act of 1978 and Executive Order 12114. The arguments presented in the Coalition's Brief regarding the Commission's jurisdiction need not be repeated here.

Applicant's claim that public hearings on the health and safety risks of the proposed Philippine reactor would not be in the public interest rests on a doubly mistaken premise.

Applicant argues only that a foreign policy objective of the United States -- namely, assuring other naticas of its reliability as a supplier of nuclear materials and components (22 U.S.C.

S 3201, subd. (b)) -- would be frustrated by the delays attendant upon safety and environmental reviews for a foreign reactor site.

(See pages 16-18 of Attachment I to Applicant's Answer.) But the word reliable means " trustworthy, safe, sure." (The Shorter Oxford English Dictionary (3d ed.) , p. 1696.) Export of an unsafe reactor to the Philippines hardly enhances the reliability of the United States as a major supplier of nuclear materials and components. The Commission therefore should not sacrifice consideration of safety issues to concerns for mere timeliness.

Second, Applicant overlooks another, and equally important, foreign policy objective of the United States - "in particular, to identify alternative options to nuclear power in aiding (foreign] nations to meet their energy needs, consistent with the economic and material resources of those nations and 1702 283

. d environmental protection." '22 U.S.C. S 3201, subd. (d).)

Public hearings on health and safety issues are in the public interest because they further this Congressional policy declara-tion. They are also in the public interest because of the widespread fear that volcanic and seismic risks -- examined at length in the Coalition's previously filed Brief -- make the Napot Point reactor manifestly unsafe and a monumental folly.

Only a public inquiry can satisfy the persistent doubts about this reactor's safety.

The Coalition will assist the Commission in its review of these health and safety issues. Because of its members' familiarity with Philippine-American relations, Philippine history and political, social, economic and environmental factors which presently obtain in the Philippines, the Coalition can provide the Commission and its staff with a full picture of the context in which the export license applications must be viewed to fulfill the policy mandate of subdivision (d) of 22 U.S.C. S 3201. The Coalition will also present appropriate testimony on the technical safety issues related to the location of pressurized water reactors (PWRs) in areas of seismic and volcanic activity.

For these reasons, the Commission should not assign representation of the Coalition's interests to other intervening parties. Neither public confidence nor the public interest will be furthered by preventing full participation by parties which have demonstrated, as the Coalition has, both cognizable legal interests and the ability to assist the Commission in complete consideration of the health, safety and environmental 1702 284

issues.

4. Conclusion.

Wherefore, the Coalition respectfully requests the Commission to grant it leave to intervene.

Reseectfully submitted:

garn% W l Nicholas Selby '

Attorney for Intervenor/ Petitioner Coalition Against Reactor Exports 2361 Columbia Street Palo Alto, CA 94306 (415)-326-7740 Dated: December 18, 1979

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. TTACHMENT I. .

AFFIDAVIT A u' I, the undersigned, Earl Nicholas Selby, being first c3 p .,

sworn, do depose and say: 2 e

l. I am a member of the State Bar of California, wi hr, 4 <52 aW N eg pgi law offices at 2361 Columbia Street, Palo Alto, Calif., 94G.d6, ji phone (415)-326-7740. ca 5" T>

2. I am counsel for the Coalition Against Reactor Expor -

(Coalition CARE) in proceedings before the Nuclear Regulatory Commission, Docket No. 110-0495, related to therapplication of the Westinghouse Electric Corporation to export a nuclear reactor to the Philippines.

3. Coalition CARE, as described in its previously filed Motion to Intervene in those proceedings, is composed of num-erous Philippine citizensnand American citizens who are con-cerned with the adverse impact of the reactor export on the health and safety of the Filipino people.

4. One member of Coalition CARE, who cannot be identified by name because of the danger of retaliation by the martial law dictatorship in the Philippines, can be described as follows:

A. She is of voting age and a citizen of the Philippines. B. She presently resides in Mountain View, California. C. She is a member of Coalition CARE, D. She owns property in the city of Olangapo, Zambales province, in the Philippines, located approximately 20 miles from the site of the proposed nuclear plant. E. This property is of a commercial. character and-produces inccme for her family and relatives. F. She believes her property interests will be endangered by Commission approval of the export licenses requested by Westinghouse and, in particular, by the unsafe iscation, construction or operation of the proposed, reactor. G. For this reason she is a member of Coalition CARE and endorses its Motion to Intervene in proceedings before the Commission.

5. Based on my four years of experience in the Philippines, living there at carious times before and after the declaratien of martial law, and based on my personal knowledge of and friendship with persons who have been arrested by the martial law government solely because of their political beliefs, I believe that her fear- of retaliation has a solid basis in fact. For this reason, at her request,_I cannot divulge her name. ,

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                                                                                      ]6 Earl Nicnolas Selbv
                                                             .- m.        GLCRIA A. DAY Subscribed and sworn to before me,

_ TN$$[ av coeia = cou. uy 12.1992 this th day of December, 1979.

ATTACHMENT II. p Wr g

                                                                  /           4    g UNITED STATES OF AMERICA m
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NUCLEAR REGULATORY COMMISSION k 1

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In the Matter of  : Docket No. 110 M 95 # Application No. Xk-1202\ # WESTINGHOUSE ELECTRIC CORPORATION  :

Application No. XCOM-0 3 (Exports to the Philippines)  : (Application No. XSNM-1437)

CERTIFICATE OF SERVICE I hereby certify that copies of the Reply of Petitioner / Intervenor Coalition Against Reactor Exports (Coalition CARE) to the Answer of Applicant Westinghouse Electric Corporation were served upon the following persons by deposit in the United States Mail (First Class), postage prepaid, this 18th day of December, 1979: Samuel J. Chilk* Ronald J. Bettauer, Esquire

• U.S. Nuclear Regulatory Commission Assistant Legal Adviser for Washington, D.C. 20555 Nuclear Affairs U.S. Department of State Chase R. Stephens, Chief Washington, D.C. 20520 Docketing and Service Section U.S. Nuclear Regulatory Commission Thomas R. Asher, Esquire *

   . Washington, D.C. 20555                  Matthew B. Bogin, Esquire

• 1232 Seventeenth Street, N.W.

IIoward K. Shapar, Esquire

• Washington, D.C. 20036 Joanna Becker, Esquire
• Office of Executive Legal Director James E. Drew, Esquire U.S. Nuclear Regulatory Commission 1712 N. Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20036 Carlton R. Stoiber, Esquire

• Barton Z. Cowan, Esquire
• Office of the General Counsel John R. Kenrick, Esquire
• U.S. Nuclear Regulatory Commission Eckert, Seamans, Cherin & Mellott Washington, D.C. 20555 42nd Floor, 600 Grant Street Pittsburgh, PA 15219 Peter Tarnoff, Executive Secretary
• U.S. Department of State Washington, D.C. 20520 Those persons whose names are asterisked above were simul-taneously served with a copy of the Brief and Motion to Inter-vene of the Coalition Against Reactor Exports filed with the Nuclear Regulatory Commission on November 15, 1979. Counsel apologi::es for any inconvenience caused b previous failure to serve copies of the Brief and Moti to nue < q n such persons. f p ,,

                               .                    b4/Wd24 1702 287            YarlNicholasSelb/1onAsainst Counsel for Coau Reactor Exnorts

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p.Y-CERTIFICATE OF SERVICE  := h55 I hereby certify that.I have this day served the foregoing document (s) upon each person designated on the official service list compiled by [g the Office of the Secretary of the Commission in this proceeding in  !;7ff accordance with the requiressnes of Section 2.712 of 10 CFR Part 2 - Rules of Practice, of the Nuclear Regulatory Co=sission's Rules and [J{ piif Regulations. p"E:

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ks-f.g.E f?' [it. E.:~' Dated at Washington, D.C. this i ..= N day of C 197k. k:.S. I-\? I-? pt. - tu 1A&> AMtL% Office 6/ Y4e Secretary of the Cocsijlsion

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(Exports to the Philippines) ) Export-Import No. 11000495 ~ ~ ~ ~ ~ ~ ~ -

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mM SERVICE LIST - ;-- _ Mr. Ronald J. Bettauer ggfj;- Thonas R. Asher, Esq. Assistant Legal Adviser tig~{ Matthew B. Bogin, Esq. f r Nuclear Affairs E:- :;: .. 1232 17th Street, N.W. L/N Room 6420 ~{l Washington, D.C. 20036 Department of State ., . .m Washington, D.C. 20520 -==-- Barton Z. Cowan, Esq. Joanna M. Becker, Esq. Eckert, Seamans, Cherin & Mellott Counsel for NRC Staff [Y1:i t_:.,_

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600 Grant Street, 42nd Floor U.S. Nuclear Regulatory Commission -f;'~ Pittsburgh, Pennsylvania 15219 Washington, D.C. 20555 i= ; Thomas M. Daugherty, Esq. Clifford Curtis, Esq. 8=iE - Westinghouse Electric Corporation 1751 N Street, N.W. P.O. Box 355 Washington, D.C. 20036 Q_ r7.5t Pittsburgh, Pennsylvania 15230 [.;..".' Mr. Louis Nosenzo Deputy Assistant Secretary for Nuclet_" E~- - Energv and Energy Technology Affairs E-::E.5. .. Department of State =.-.:

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