ML19261D834

Memo by Applicants Re Significance of ALAB-549 in Proceeding.Associational Standing Doctrine Has Been Misapplied to Organizations Seeking Standing Through People Who Are Not Members.Certificate of Svc Encl

ML19261D834
Person / Time
Site:	Comanche Peak
Issue date:	06/04/1979
From:	Reynolds N DEBEVOISE & LIBERMAN
To:
References
NUDOCS 7906260494
Download: ML19261D834 (9)

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In the Matter of

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) Docket Nos. 50-445 TEXAS UTILITIES GENERATING 50-446

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CCMP ANY , ET AL.

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(Comanche Peak1Steam Station, Units and 2) Electric )

APPLICANTS' MEMORANDUM REGARDING IMPORT OF ALAB-549 IN THIS PROCEEDING At the prehearing conference in Glen Rose, Texas on May 22, 1979, NRC Staff counsel advised the Licensing Board, and representatives of the counsel for the Applicants, da petitioners to intervene that the Appeal Board had issue in Houston Lightinc & Power Co.

decision on May 18, 1979, Units 1 & 2) (ALAB-549) which provided (South Texas Project, (Tr. 24).

a discussion of the doctrine of associational standing il The Board permitted the Applicants, Staff and petitioners unt if June 4, 1979, to file briefs discussing the significance, The Applicants' any, of ALAB-549 on the instant proceeding.

forth below.

position in that regard is set I. poetrine of Associational Standing The crux of the decision in ALAB-549 was the rejection an organizatica of the argument by the applic= * -"ere that located a great distance from a nuclear facility cannot sides .

h obtain associational standing through an ir.dividual w o re facility. The Appeal scard in reasonable proximity to that 2313 076 7 9 06 26 049p

in ALAS-549 disposed of this argument by quoting Warth v.

Seldin, 422 U.S. 490 (1975), for the posposition that an members association may derive standing through any one of its Likewise, who is suf fering immediate or threatened injury.

i the Appeal Board there distinguished reliance by that appl -

77-0734 (D.D.C.,

cant on Health Research Group _ v. Kennedv, No.

March 13, 1979), on the basis that Health _Research Grouc related to the rejection of standing to an organization with-out members which sought to establish standing solely as the representative of its contributors and supporters.

We do not dispute the reasoning of the Appeal Board in ALAB-549.

Rather, we view ALAS-549 as mere confirmation that this Commission will continue to apply the teachings of the It is axiomatic Supreme Court on associational standing.

that an association may derive standing through one of its It is members who himself has appropriate legal standing.

also manifest that Health Research Group _ related to a situa-tion where the organization seeking associational standing was without members.

The points discussed by the Appeal Board in ALAS-549 do forth not alter in any respect the arguments and positions set to the by the Applicants in this proceeding with respect Our view of the pertinent pending petitions to intervene.

law to be applied by this Soard in evaluating the petitions 2313 077

most recently in is that set forth by the Supreme Court, Hunt v. Washincton State Acole Advertisinc Comm'n, 432 U.S.

333 (1977). In Hunt, the Supreme Court discussed the three factors which must be present in order for an organization to derive associational standing, viz., (1) .that members of the organization otherwise have standing; (2) that the interests the organization seeks to protect are germane to its purpose; and (3) that participation of the member through whom associational standing is derived is not necessary

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in the proceeding.

We recognize that Hunt related in part to the deri-vation of associational standing in situations where the organization seeking such standing had no members. Neverthe-less, we believe that Hunt is of particular importance to the case at bar because in Hunt the Supreme Court clarified and elevated the importance of membership by analyzing at length the meaning of membership, by basing its ruling on the functional equivalency of membership, and by requiring a sub-stantial nexus between the organization and the " member. "

See Hunt v. Washincton State Acole Advertisinc Ccmm'n, Kennedy, suora, 432 U.S. at 344-45; Health Research Group v.

suora, Slip Cpinion at p. 8.

-*/ We argued these f actors at length at 'he prehearing con-ference, and noted the absence of any material demonstration by any petitioner that the interests of the individuals through whom the crganizations seek to derive associational standing are germane to the purposes of those organizations.

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We are not arguing here that any of the petitioners are seeking associational standing through non-members, and thus are not arguing that we have a factual situation which calls Hunt or Health Research Group directly into play. Since West Texas Legal Services has withdrawn its request to participate as a party in this proceeding, and since the Woods and Bishops have withdratrn their support of the ACORN petition in f avor of requests to participate directly as parties, there are no petitioners remaining which to our knowledge seek to derive associational standing through non-members. What we are arguing is that the associational standing doctrine has been misapplied in situations where organizations seek to establish standing through individuals who do not enjoy the indicia of true and meaningful membership which the Supreme Court required in Hunt, supra, 432 U.S. at 344.

Contemporaneous judicial teachings on the associational standing question (primarily Hunt and Health Research Group) strongly suggest that the tribunal entertaining the request for associational standing should assure that the individuals through whom such standing is sought possess at least the fundamental indicia of membership in the organization. We submit that there must be some substantial nexus between the individuals and the organi=ations, such as the ability or responsibility to elect governing bedies, to serve on such bcdies, to direct the actions of the organization, and to 2313 079

finance the organization. Absent such aaxus here, the Board should deny the petitions to intervene.

II. ASLB Decision in WPPSS-2 With respect to the discussion in ALAB-549 of the decision of the Licensing Board in Washincton Public Power Sucolv System (WPPSS Nuclear Project No. 2), LBP 79-7, 9 NRC (March 6, 1979) , we submit that the Appeal Board The has lef t the rationale of that decision untouched.

Appeal Board noted with approval that the Licensing Board in South Texas had treated the petition at bar there as a late filing pursuant to the WPPSS-2 decision, and had con-cluded, after balancing the four factors governing late intervention set forth in 10 CFR S2.714 (a) , that late inter-vention was appropriate in any event.

The Licensing Board in South Texas concluded, and the Appeal Board agreed, that the petition there should be treated as filed on the date when the petitioner identified the individual through whom associational standing was sought, rather than on the later date when his affidavit was actually filed. We agree with this interpretation, and find it to be totally consistent with the rationale of the Licensing Board in WPPSS-2 that 10 CFR 52. 714 (a) ( 3 ) permits the amend-ing of petitions to clarify factors relating to interest, 2313 080

but does not permit the amending of petitions to add individuals (through whom associational standing is sought) who were not members of the organization at the time the original petition was filed. In short, we believe that the decisica in AIAB-549 is consistent with the decision in WPPSS-2, and that it supports our views expressed previously in our pleadings and at the p ehearing conference.

Respect u _y submitted,

);

Nichola q. Reynolds DEBEVOI E @ LIBERMAN Counsel for the Applicants June 4, 1979 2313 081

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4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

)

In the Matter of )

)

TEXAS UTILITIES GENERATING Docket Nos. 50-445 COMPANY, ET AL. )

) 50-446

)

(Comanche Peak Steam Electric )

Station, Units 1 and 2)

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Memorandum Regarding Laport Of ALAS-549 In This Proceeding," dated June 4, 1979, in the captioned matter have been ser' red upon the following by deposit in the United States mail this 4th day of June, 1979:

Elizabeth S. Bowers, Esq. Lawrence J. Chandler, Esq.

Chairman, Atomic Safety and Office of the Executive Licensing Board Legal Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission 20555 Washington, D.C. 20S55 Washington, D.C.

Richard'W. L'owerre, Esq.

Dr. Richard F. Cole Assistant Attorney General Atomic Safety and Licensing Environmental Protection Agency Board Panel P.O. Box 12548 U.S. Nuclear Regulatory Capitol Station Commission Austin, Texas 78711 Washington, D.C. 20555 Mr, Lester Kornc> lith, Jr. Mrs. Juanita Ellis Atomic Safety and Licensing President CASE Board Panel 1426 S. Polk U.S. Nuclear Rer21atory 75224 Dallas, Texas Ccmmission Washington, D.C. 20555 Mr. Richard L. Fouke Chairman, Atemic Safety and CFUR Licensing Board 1668B Carter Drive Arlington, Texas 76010 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 2313 082

( ,

UNITED STATES OF AMERICA NUCLEAR REGULATr' ' COMMISSION

)

In the Matter of )

)

TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 COMPANY, ET AL. 50-446

)

)

(Comanche Peak Steam Electric Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Memorandum Regarding Import in Of captioned the ALAS-549matter In Thishave Proceeding,"

been dated served June 4, 1979, upon the following by deposit in the United States mail this 4th day of June, 1979:_ _

Bowers, Esq. Lawrence J. Chandler, Esq.

Elizabeth S. Office of the Executive Chairman, Atomic Safety and Legal Director Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Richard W. L'cwerre, Esq.

Dr. Richard F. Cole Assistant Attorney General Atomic Safety and Licensing Environmental Protection Agency Board Panel P.O. Box 12548 U.S. Nuclear Regulatory Capitol Station Commission Austin, Texas 78711 Washington, D.C. 20555 Mr. Lester Kornblith, Jr. Mrs. Juanita Ellis Atomic Safety and Licensing President CASE Board Panel 1426 S. Polk U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C. 20555 Mr. Richard L. Fouke Chairman, Atcmic Safety and CFUR Licensing Board 1668B Carter Drive 76010 Arlington, Texas U.S. Nuclear Regulatory ccmmission Washington, D.C. 20555 2313 083

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Geoffrey M. Gay, Esq. Mr. Chase R. Stephens West Texas Legal Services Dccketing & Service Section 406 W.T. Waggoner Building U.S. Nuclear Regulatory 810 Houston Street Ccmmission Fort Worth, Texas 76102 Washington, D.C. 20555 ll . y*.

Nichola S .' Reynolds U

f cc: Ecmer C. Schmidt Spencer C. Relyea, Esq.

23i3 084

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