ML20011A368

Answer Opposing Natl Lawyers Guild,Philadelphia Chapter, 810918 Petition to Intervene.Petitioners Failed to Satisfy Requirements for Intervention by Organization Representing Members Interests.W/Certificate of Svc

ML20011A368
Person / Time
Site:	Limerick
Issue date:	10/05/1981
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8110090360
Download: ML20011A368 (13)

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qpgr 5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION jkTJ i ' <f' 6C .

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Before the Atomic Safety and Licensing Boar $ (WV-M s

4 In the Matter of ) i*

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Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 " 19 (Limerick benerating Station, ) 8 f f' c'

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APPLICANT'S ANSWER TO NATIONAL LAWYERS GUIl h u,,,c , O /Sg Ti

_ PHILADELPHIA CHAPTER, PETITION TO INTERVENd\ ol$",,g, 7 f/

M s Preliminarv Statement , Yh On August 21, 1981, the Nuclear Regulatory Commissio

(" Commission" or "NRC") published a notice in the Federal Register entitled " Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), Receipt of Application for Facility Operating Licenses; Consideration of Issuance of Facility Operating Licenses; Availability of Applicant's Environmental Report; and Opportunity for Hearing" (" Notice"). ~1/

In response to the Notice, a petition for intervention was filed by the National Lawyers Guild, Philadelphia Chapter

(" Guild"), on September 18, 1981.

For the reasons discussed more fully below, petitioner National Lawyers Guild has failed to satisfy the require-ments for organizational standing in an NRC proceeding. Nor has petitioner designated the " specific aspect or aspects of 1/ 46 Fed. Reg. 42557 (Augus- 21, 1981). gD5 3 l

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. __ ,_ . the subject matter of the proceeding" which it wishes to pursue. Accordingly, the petition should be denied.

a' Argument Under the Commission's Rules of Practice, i netition to intervene in a licensing Froceeding may be_ granted u.- if the requirements of 10 C.F.R. SS2. 714 (a) (2) and (d) has-been satisfied. In essence, the regulations require the petitioner to state his specific interest in the proceeding and explain how that interest may be affected by the outcome of the proceeding.

It is now well settled that " organizations . . . are not clothed with independent standing to interves e in NRC licensing proceedings. Rather, any standing which [an organization] may possess is wholly derivative in character. "

Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 390 (1979). --2/In other words, an organizational petitioner must

, establish that at least one of its members has legal stand-ing to' intervene in this proceeding under the rules applicable to individual petitioners.

In essence, the instant petition to intervene suffers from the same defects which resulted in denial of another 1

chapter of the Guild's petition for intervention by the

_2/ See also Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-79-18, 9 NRC 728 (1979); Detroit Edison Company (Enrico Fermi ,

Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73 (1979). l

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Appeal Board in .the Allens Creek proceeding. The factual parallel.between the two cases is striking. The petition here, as in Allens Creek, does not identify by name or address any particular member whose interest night be affected by the outcome of the proceeding and who has ex-pressly authorized the Guild to represent those interests in this proceeding. Instead, there is simply a representation by counsel that certain unspecified members of the Philadelphia

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Chapter of the Guild " reside in and around Philadelphia. "

Further, while the Guild states an abstract concern over " security measures and the rights of prisoners,"-~4/

the petition is utterly devoid of any information as to how Guild members possess any personal interest in these matters or hdw such interest would be affected by the outcome of the proceeding. Thus, the Guild's alleged " commitment to civil 5/

liberties and prisoners' rights"- shows no injury in fact to its members or how such injury would result from the is-suance of an operating license for the Limerick plant.

~In rejecting similar assertions, the Appeal Board in Allens Creek noted that the holding in Sierra Club v. Morton, 405 U.S. 727, 739-40 (1972), precludes a finding of standing simply on the basis of an abstract concern, however genuine, with the subject matter of a proceeding. The Appeal Board

_3/ Guild petition at 1. At page 2 of the petition, it is further represented that Guild members all reside close to Limerick.

4/ Id. at 1.

5/ Id. at 2.

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emphasized that the Licensing Board "was not merely entitled but obligated to satisfy itself that there was at least one member-of the Guild with a particularized interest which might be affected by the outcome of the proceeding" and, further, that the Board was not required "to presume that the Guild had a member with the requisite affected inter?9t on the strength of nothing more than the naked representa-tion in its petition that a certain number of Guild members reside within 'close proximity' to the site of the proposed 6/

facility."-- The Appeal Board explained its rationale as follows:

Although it may be reasonable to  ;

suppose that most (perhaps all)  !

Guild members share that dedication as well as subscribe to the general objectives of the organization as spelled out in the petition, it scarcely follows perforce that each considers that construction of the Allens Creek facility would invade

! some personal intert_ .rguably l within the zone of interests sought to be protected or regulated" by either the statutes this Commission enforces or the Constitution. In-sofar as we are aware, joining and retaining membership in the Guild does not signify adherence to any particular views regarding the desirability of nuclear power facili-

ties, either from a civil liberties standpoint or otherwise. Nor, more importantly, does there appear to be any necessary link between holding Guild membership and possessing an interest which.might be affected by the construction or operation of such a facility. Indeed, for all that ap-pears on this record, the personal

_6_/ ALAB-585, 9 NRC at 391-92.

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' interests of any particular Guild member might be. advanced, rather than harmed, by the construction of Allens Creek - i.e., the proposed licensing action would cause the member no in-jury in fact at all.

Absent disclosure of the name and ad-dress of one such member, it is not possible to verify the as3ertion that such members exist. In a foot-note in their brief, the amici curiae endeavor to brush this consideration aside by noting that the veracity of the Guild's allegation that it has nearby members that has never been challenged and, were it to be, the Board below could require a Guild of-ficer to submit an affidavit attesting to the truthfulness of the allegation.

What this line of reasoning ignores is that both the Board and the other parties were entitled to be provided with suffi-cient information to enable them to determine for themselves, by independent inquiry if thought warranted, whether a basis existed for a formal challenge to the truthfulness of the assertions in the Guild's petition. Beyond that, we are unprepared to accept amici's implicit thesis that standing may be established by means of an affidavit which makes conclusory assertions not susceptible of verification by either other litigants or the adjudicatory tribunal. We know of no authority for such a novel and unattractive proposi-tion, which to us runs counter to fundamental concepts of procedural due process. _7/

Because the Guild in Allens Creek did not satisfy this requirement, its petition to intervene was denied.

7/ Id. at 392-93 (footnote and citations omitted) (emphasis in original).

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The same approach has been taken in a number of other.

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licensing' cases. For example, in'the Enrico Fermi proceed-fing,'the Board stated that an organization which seeks to-intervene on'the basis of the-interest of its members "must

-identify 7specifically the name'and_ address of at least one affected member who wishes to be represented by the organi-8/

zation."~~ In Waterford, the Board similarly ~ stated that-institutional standing requires the representative to demon-strate that at least one of its members has satisfied the

" injury in fact" and " zone of interest" tests and has at leastLimplicitly authorized the organization to represent 9/

his interests. More recently, the Licensing Board in the Perry proceeding also stated the requirement that petitions for in'tervention "be accompanied by one or more ' affidavits stating the place of residence of members on whom standing is based and stating that the organizaAion is authorized to represent the member's interests."--10/

In the Big Rock Point proceeding, the Licensing Board held that intervention must be denied because the organiza-tion had failed to identify specific members by name and address, provide a statement by such members authorizing the

_8/ Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 77 (1979).

_9/ Louisiana Power and Light Company (Waterford Steam Electrical Station, Unit 3) , Docket No. 50-382, " Memo-randum and Order" (March 7, 1979) (slip opinion at 4) . I 10/ Cle veland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), Docket Nos. 50-440 and 50-441, " Memorandum and Order Scheduling Prehearing Conference Regarding Petitions for Intervention" (April 9, :1981) (slip opinion at 6) .

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organization to represent it, and provide a statement of the members' interests which would be affected by the proposed 11/

action.-- And in Comanche Peak, the Licensing Board reiterated that while an organization can establish standing through its members whose interests may be affected, "the specific members must be identified, how their interest may be af-fected must be shown, and the member's authorization to the 12/

organization must be stated . . . . Accordingly, the unsupported and conclusionary representation by the Guild's counsel that its membership possesses the requisite personal interest necessary for intervention, merely on the basis of the Guild's general " commitment" in certain areas, is in-sufficient as a matter of law for the Guild's intervention.

Moreover, even if an individual member had personally authorized the Guild to represent him in this proceeding and identified his own interests as those stated in the petition, those interests are clearly insufficient to establish standing. In response to the petition of Marvin I. Lewis to intervene in this proceeding, Applicant has stated its position as to the necessary particularization of an identi-fiable interest in a licensing proceeding, including an ex-planation of how that interest would be affected by any 11/ Consumers Power Company (Big Rock Point Nuclear Plant),

Docket No. 50-155, " Memorandum and Order" (September 25, 1979) (slip opinion at 4).

12/ Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-79-lE, 9 NRC 728, 729 (1979).

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.. given outcome-in the proceeding. This position is equally applicable here. Rather than furnish the Licensing Board

. with repetitive pleadings, Applicant hereby incorporates and respectfully refers the Board to its answer to the Lewis petition for a statement of the authorities upon which it relies as to the requisite personal interest for standing. ~~13/

Thus, petitioner's stated interest in civil rights is too nonparticularized and thus indistinguishable from the general interest of the public at large. See Transnuclear, Inc., CLI-77-24, 6 NRC 525, 531 (1977); Nuclear Engineering Comp any , Inc., (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 739, 741 (1978).

Second, the Guild membership lacks standing to plead the rights of third parties. Thus, any concern over "strin-gent security measures" at Limerick has no bearing on the i

Guild membership. None of the Guild's attorneys would be an l employee at Limerick affected by such measures. Nor has any i

personal interest of the Guild's members with regard to the State Correctional Institution at Graterford been demonstrated. --14/

Under the Commission's rules for intervention, which incorporate 1

13' Petitioner herein has been served a copy of Applicant's answer to the Lewis petition.

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The Licensing Board lacks jurisdiction to consider any alleged " illegal surveillance" (Guild petition at 2). "It is settled that, in determining whether it is empowered to entertain a particular issue, a licensing board must respect the terms of the notice of hearing published by the Commission for the proceeding in question." Commonwealth Edison Company (Carroll County Site) , ALAB-601, 12 NRC 18, 24 (1980). )

judicial concepts of standing, the Guild is not authorized

.to represent the interests of third parties.

As the Court stated in Warth v. Seldin, 422 U.S. 490, 499 (1975), a party " generally must assert his own legal rights and interests, and cannot rest his claim to relief on

.the legal rights or interests of third parties." Again, in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166 (1972), the Court stated that a party "has standing to seek redress for

injuries done to him, but may not seek redress for injuries l 16/ -

done to others."-- Therefore, the Guild has not alleged, as it cannot, that the civil liberties or rights of its own members will be in any way affected.

Finally, petitioner has failed to designate the " specific

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aspect or aspects of the subject matter of the proceeding" -

in which its interest lies. The Guild has merely stated that it wishes to raise contentions in the areas of " security

--15/ As the Appeal Board stated in the Sheffield proceeding:

"It is now settled that, in determining whether such an interest has been satisfactorily alleged, contemporaneous judicial concepts of standing are to be applied." Nuclear Engineering Company, Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 739 (1978). The Commission has frequently reaffirmed this standard, most recently in its approval for publi-cation of the Final Rule proposed in SECY-81-464A (En-closure A at p. ll)(September 24, 1981).

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--16/ In the Transnuclear proceeding, supra, 6 NRC at 531, the l Commission adopted the Warth test for standing. See also

! Arlington Heights v. Metropolitan Housing Corp., 429 U.S.

252 (1977); Singleton v. Wulff, 428 U.S. 106 (1976);

1 Broadrick v. Oklahoma, 413 U.S. 601 (1973); United States

v. Raines, 362 U.S. 17 (1960).

17/ 10 C.F.R. S 2. 714 (a) (2 ) .

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planning _ and emergency planning. "~- As the Board stated in the Midland proceeding, the requirements for properly des-ignating such~" aspects" are unclear but likely " narrower than a general reference to (the NRC's] operating statutes."~-19/

The Guild's vague allusion to security and emergency planning matters is no better than just such general statutory ref-erences. It fails to give adequate notice to the Board, Staff, Applicant and other parties as to the nature of the desired intervention and - the scope of proposed contentions ,

as was the evident intention of the Commission in its re-vision of 10 C.F.R. S2. 714 (a) (2) . Also, given the standing requirements discussed above, all aspects alleged by peti-tioner, including any contentions thereunder, must necessarily be limited to the demonstrated ' injury in fact," if any.

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Guild petition at 2. It is not even clear whether petitioner is referring to personnel security or the physical security of the plant. Regardless of any effect security requirements might have upon petitioner's members or others , these requirements under the Atomic Energy Act of 1954 and NRC regula-tions cannot be challenged by petitioner. An attack on the constitutionality of a statute or the validity of Commission regulations has always deemed to be outside the scope of individual licensing proceed-ings. See Metropolitan Ediscn Company (Three Mile Island Nuclear Station, Unit No. 2), ALAB-456, 7 NRC 63, 67 n.3 (1978); Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 89 (1974).

19/ Consumers Power Company (Midland Plant, Units 1 l and 2), LBP-78-27, 8 NRC 275, 278 (1978).

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. Conclusion For the reasons more fully discussed above, petitioner National Lawyers Guild has failed to sat.isfy the require-ments for intervention by an organization purporting to represent the personal interests of its members and has also failed to designate those aspects of the proceeding in which its members have such an interest.

Accordingly, the petition to intervene should be denied. Applicant has no objection, however, to a limited appearance by. petitioner pursuant to 10 C.F.R. 52.715(a).

Respectfully submitted, CONNER & WETTERHAHN f' . -

Tro . Conner, Jr.

Mark J. Wetterhahn Robert M. Rader Suite 1050 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 l 202/833-3500 l Counsel for the Applicant October 5, 1981 l

4, .

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In_the Matter of )

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PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, ).

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that c6p es of " Applicant's Answer

.y to National Lawyers Guild, Philadelphia Chapter, Petition to Intervene," in the captioned matter have been served upon the following by deposit in the United States mail this 5th day of-October, 1981. A copy of Applicant's answer to the Marvin I. Lewis petition has also been served on petitioner.

Judge Lawrence J. Brenner Alan S. Rosenthal, Esq.

Chairman, Atomic Safeti and Chairman, Atomic Safety and Licensing Board Licensing Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Judge Peter A. Morris Eugene J. Bradley, Esq.

Atomic Safety and Licensing 2301 Market Street Board Philadelphia, Pennsylvania 19101 C.S. Nuclear Regulatory Commission Colleen P. Woodhead, Esq.

Washington, D.C. 20555 Office of the Executive Legal Director Judge Richard F. Cole U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Mr. Chase R. Stephens, Chief Washington, D.C. 20555 Docketing and Service Branch Office of the Secretary ,

Paul B. Cotter, Jr., Esq. U.S. Nuclear Regulatory Chairman, Atomic Safety and Commission ,

Licensing Board Washington, D.C. 20555 j 1 U.S. Nuclear Regulatorv I Commission ]

Washington, D.C. 20555 l

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Donald S. Bronstein, Esq.

National Lawyers-Guild 1425 Walnut Street Third Floor Philadelphia, Pennsylvania 19102

! [1 ki Rob'ert"M.'Rader Counsel-for the Applicant 1

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