ML19274D747
| ML19274D747 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 01/26/1979 |
| From: | Roisman A National Resources Defense Council |
| To: | |
| References | |
| NUDOCS 7902220270 | |
| Download: ML19274D747 (10) | |
Text
@) N t.;
f
$7 ce;W
'5 t.
y
\\N h
UNITED STATES OF AMERICA 3%^
4NSCLEAR REGULATORY COMMISSION ega, f Ts#'* J
% {J;m,,k,[
w
\\
T)n i
LW"Y 83f G Nd In The Matter Of DUKE POWER COMPANY
[DocketNo. 70-2623 (Amendment to Materials License for Oconee Spent Fuel Transportation and :
Storage at McGuire Nuclear Station)
NATURAL PISOURCES DEFENSE COUNCIL OBJECTIONS TO SUPPLEMENTAL PPEHEARING CONFERENCE ORDER The Board's Order reached the conclusion that NRDC should not be permitted to intervene in this proceedinc because it lacked standing and because it had failed to demonstrate that it could make a sufficiently valuable contribution to warrant discretionary intervention.
In reaching these con-clusions, we believe the Board ignored legal and factual presentations by NRDC.
The purpose of this filing is to focus on those presentations in the hopes of persuading the Board to reverse its decision.
At page 10 of the Order the Board appears to make two rulings.
The Board appears to rule that (1) NRDC has failed to allege a sufficient injury in fact to members to meet the re-quirements of S 2.714 and (2) NRDC has failed to establish that it is authorized to represent any members.
With respect to the apparent finding of the absence of any injury in fact, the Board never addresses the argument advanced in our filings that there'is no need to know the name or address of a member to determine whether an injury in fact to such member could r;90222D W C
t 2
2 occur from the proposed action.
By sworn affidavit we stated that members of NRDC lived within the geographic area which could be affected by an accident or malevolent act occurring to the spent fuel while it was being handled or transported.
No party challenged these allegations or demonstrated in any way how the disclosure of the names or addresses of any members would have made the injury alleged more legally acceptable.
In the absence of such a challenge, the Board's apparent conclu-sion that NRDC had failed to allege an injury in fact is without support and should be reversed.
With respect to both the issues of injury in fact and authorization, the Board brushed aside the teaching of NAACP v.
Alabama, 357 U.S. 449 (1958).
First, we believe the Board missed the thrust of that case -
i.e.,
the enforced disclosure of the name of a person who associates with an organization which espouses controversial policies can have a serious, chilling effect on that person's constitutionally protected right of association and thus such a di; closure cannot be permitted unless there are overwhelming public policy consid-erations.
In the instant case, NRDC introduced three sworn affidavits to substantiate the claim that the well recognized nuclear power controversy is one of thosa issues which can and has resulted in harrassment of members of the public, and we offered to go to trial and produce wit. esses to further support our claim if it were challenged.
No party produced a single contrary affidavit, nor was any evidence submitted to rebut the claims made in the URDC affidavits.
The affidavit of Kenneth
3
~
Bossong was necessarily tentative because as a careful researcher he was unwilling to reach definitive conclusions until his studies were completed.
In addition the affidavit was not intended to be the total evidentiary presentation but either to expose a factual controversy for which a hearing is required or, in the absence of. controversy, to stand as uncontroverted facts.
The Board merely concluded, without discussing the NRDC affidavit evidence, that the situations herb and in the NAACP case were different.
We admit the difference but fail to see the distinction.
Even the requirement that only one member's name be disclosed, a point of apparent importance to 'the Board, is a serious threat to freedom of association because no member can be certain his will not be the name disclosed.
In addition disclosing one name must inevitably lead to disclos~ing many names as the party opposing standing searches to see if a majority of members authorize the action, probes, through depositions, the state of mind of each member and even seeks reopening of the standing issue and further depositions as the issues in the case evolve during the hearing.
Even if the single name disclosure requirement and the Bossong and Adamr affidavits do not conclusively demonstrate that the disclosure 1/
The John Adams affidavit could not demonstrate that cur members are harrassed because we have not released the names of -
our members even where it appeared necessary to remain in litigation.
See affidavit of James Taylor Banks.
4 of a name will have a chilling effect on freedom of association, they at least present, in the absence of contrary evidence, sufficient evidence to entitle NRDC to an evidentiary hearing on the issue.
The Board's articulation of a requirement that a name be disclosed and that authorization from the member named be established goes beyond any case law cited by the Board or the parties and beyond.any reasonable requirement of standing.
Despite citation to selected portions of standin J cases, no case cited by the Board even addressed the issue, much less decided that where, as here, a party is clearly entitled to sue on behalf of its members it must disclose the name of the member for whom the suit is brought and establish some explicit author-ization for the suit.
To impose such an explicit authorization requirement would convert the principle, recognized by the Board, that an organization may gain standing based on injury to its members into a requirement that public interest law organizations become counsel for their members and be denied the right to sue in their own name.
The explicit authorization linkage is what distinguishes the NRDC and Sierra Club type standing from a traditional lawyer / client relationship.
The Supreme Court gave explicit authorization to the former type of standing in Sierra Club v. Morton, 405 U.S.
727 (1972).
This Board may not legally require more.
The Board did not address the point made by NRDC that by membership in NRDC a person is endorsing the litigation
5 program and is thus implicitly authorizing NRDC to use its established procedures for exercising its judgment about what cases to pursue.
The NRDC corporate structure requires a, careful and thoughtful process, participated in by the NRDC staff and its Board of Trustees, in selecting the litigation to be initiated.
The members have confidence in this process and are periodically advised of the progress of such litigation.
Surely there could not be any cbjection to standing if each member joining NRDC signed a blanket authorization for all litigation approved by the NRDC staff and Board of Trustees.
While nothing in precisely those terms exists, there is no practical difference between that situation and the present case where over 40,000 persons have become members of NRLo, contributing funds to NRDC and being fully informed by NRDC that it is principally involved in litigation.
The receipt of s
a contribution from such a member is a concrete statement of support for and authorization of NRDC approved litigation.
No more can or should be required for standing.
In rejecting discretionary intervention for NRDC, the Board merely summarized NRDC's oral statements regarding its contribution to the hearing and concluded, without any articu-lation of reasons, that the requisite contribution had not been shown.
The Board is obligated to discuss thoroughly on the record the basis for its conclusions.
Pacific Gas & Electric Co. (Diablo Canyon) ALAB-504, 8 NRC (October 27, 1978).
Such an articulation of its reasoning would have compelled the Board to explain how an organization whose initial petition to
6 the AEC produced the rules under which the proposed license might be approved prior to completion of the generic impact statement on interim spent fuel storage, who filec extensive comments on the draft GEIS of both NRC and DOE on interim spent fuel storage and who is widely recognized as an extremely competent public interest law organization 2/ had not shown significant ability to contribute with respect to the legal adequacy of the environmental impact analysis of the proposed action and the consideration of alternatives to it.
Similarly the Board would have to explain why Drs. Cochran and Tamplin, one or both of whom are the principal authors of an NRDC study on the availability of at-reactor storage as an alternative to transshipment of spent fuel and of the technical analyses supporting NRDC petitions to the NRC regarding the hazards of low-level radiation to workers (Petition to Amend 10 CFR 20.101:
Exposure of Individuals to Radiation in Restricted Areas, NRC Dkt. No. PRM-20-6, NRDC Petition for Rulemaking (October'1975) and Supplement to Petition (November 1977)) and the risks of sabotage of special nuclear material (Licensees Authorized to Hold or Transport Strategic Quantities of Special Nuclear Material, NRC Dkt. No. 70-8, et al.,
NRDC Petition for Adoption 2/
In testimony before the Senate Judiciary Committee, United States District Judge Charles Richey stated:
Every time I see somebody.
like NRDC come into my court, I say "Thank God!"
because I know I am going to have competent counsel that does not represent any governmental or proprietary interest.
7 of Emergency Safeguard Measures or in the Alternative for Revocation of Licenses), do not have significant ability to contribute to the pt uit of the contentions which present these issues.
Finally the Board would have to explain how NRDC does not have a significant ability to contribute by the use of its combined legal and scientific expertise to pursue all of the NRDC contentions relevant to the proposed action which are not being presented by any other party.
For the reasons stated above, we respectfully request that the Board reverse its Order of January 9, 1979, and grant NRDC standing to participate in this proceeding and to pursue the issues it has raised in its contentions.~
Respectfully submitted, g
AnthonyZ.Mihan Natural Resources Defense Council 917 15th Street, NW Washington, D.C.
20005 (202)737-5000 g
Dated:
JanuaryJMf71979
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
DUKE POWER CO.
)
)
(Amendment to Materials License
}
Docket No. 70-2623 i '
SNM-1773 for Oconee Nuclear
)
Station Spent Fuel Transportation
)
and Storage at McGuire Nuclear
)
Station)
)
CERTIFICATE OF SERVICE I hereby certify that copies of NRDC OBJECTIONS TO SUPPLEllENTAL PREHEARING CONFERENCE ORDER were mailed today, January 2, 1979, to the persons on the attached service list.
.-c,; g ~,
s
.~%-
s
.r 4
u
!-l S;,:t H 1973 >'--
-4
\\a c;3';,., - -
.x g,A aca
\\v#.\\
'Ni\\ @
l Anthony Z.dlo man I
B Robert M. Lazo, Esq., Chairman Atomic Safety and Licensing Board Panel U.S.
Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Cadet H.
- Hand, Jr.,
Director Bodega Marine Laboratory Post Office Box 247 Bodega Bay, California 94923 Dr. Emmeth A. Luebke Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 James Michael McGarry, III, Esq.
Joseph B.
- Knotts, Jr., Esq.
Debevoise & Liberman 1200 17th Street, N.W.
Washington, D.C.
20036 Richard K.
Hoefling, Esq.
Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Attention:
Docketing and Service Section Jeremy Block Safe Energy Alliance 1707 Lombardy Circle Charlotte, North Carolina 28203 Richard P. Wilson Assistant Attorney General 2600 Bull Street Columbia, South Carolina 29201 Shelley Blum, Esq.
418 Law Building 730 East Trade Street Charlotte, North Carolina 28202 Jesse L.
Riley Carolina Environmental Study Group 854 Henle'y Place Charlotte, N.C.
28207
Brenda Best Carolina Action 305 East Chapel Hill Street Durham, No:-th Carolina 27702 Chuck Gaddy NC PIRG Davidson College Davidson, North Carolina 28036 O
e