ML20011F079
| ML20011F079 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 02/05/1990 |
| From: | Saporito T NUCLEAR ENERGY ACCOUNTABILITY PROJECT |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#190-9942 2.206, 89-584-01-OLA, 89-584-1-OLA, OLA-4, NUDOCS 9003010043 | |
| Download: ML20011F079 (16) | |
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USNRC NUCLEAR REGULATORY COMMISSION 10 F0B 22 A10:42 I
UNITED STATES OF AMERICA ATOMIC SAFETY AND LICENSING APPEAL PAyykE 0f SECRETA 6Y DOCKL itNG t. Sf HVlCf.
BRANC.H In the Matter of
)
Docket Nos. 50-250-OLA-4
)
50-251-OLA-4 Florida Power & Light Co.
)
)
(Pressure / Temperature Limits)
(Turkey Point Nuclear Plant,
.)
Units 3 and 4)
)
ASLEP No. 89-584-01-OLA
)
l APPELLANT'S APPEAL FROM THE JANUARY 16, 1990 MEMORANDUM AND ORDER (Denying Petition to Intervene)
AND MEMORANDUM OF EXCEPTIONS TO THE DECISION IN SUPPORT OF APPELLANT'S APPEAL t
Submitted By:
Thomas J.
Saporito, Jr.
Executive Director
+
Nuclear Energy Accountab11ity Project 1202 Sioux Street Jupiter, Florida 33458 (407) 743-0770 Dated:
Febuary 5, 1990 i
9003010043 900D05
{DR ADOCK 05000250 PDR 3 s03
=
=
l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL PANEL r
In the Matter of
)
Docket Nos. 50-250-OLA-4
)
50-251-OLA-4 Florida Power & Light Co.
)
)
(Pressure / Temperature Limits)
(Turkey Point Nuclear Plant, )
Units 3 and 4)
)
ASLBP No. 89-584-01-OLA
)
Febuary 5, 1990 l
1 SACKGROUND On October 22,
- 1989, the Nuclear Energy Ac:ountability Projg:t (NEAP) and Thomas J.
- Saporito, Jr.
(hereinafter *
't "Appullants"),
r4 Quested le&Ve to intervene in thL above-styled proceeding pursuant to U.S. Nuclear Regulatory Commission (NRC) t Rules of Practice embraced within Titie to of the Code of i
Federal Regulations.
On January 16, 1990, the NRC Atomic Safety and Licensing Board (ASLB) authorized to preside over these proceedings, issued a MEMORANDUM AND ORDER (Denying Petition to Intervene).
On January 21, 1990, Appellants submitted a timely NOTICE OF APPEAL of the January 16, 1990 MEMORANDUM AND ORDER (Denying Petition to Intervene) and also requested an ORDER be issued for oral argument at a public hearing pursuant to 10 CFR 2.763.
L f
+ > -.
j i
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPELLANT'S APPEAL In support of Appellant's Appeal from the January 16, 1990, MEMORANDUM AND ORDER (Denying Petition to Intervene),
Appellants' submit for the Atomic Safety and Licensing Appeal i
Panel's (ASLAP) consideration, the following summation of relevant facts and overview of the-law that applies to the 5
instant case.
I. STATEMENT OF THE CASE This matter is Defore the ASLAP pursuant to 10 CFR 2.762 i
for consideration to reverce the January 16, 1990, MEMORANDUM AND ORDER (Denying Petition to Intervene) it. sued by the NRC Ator*:c Safety and Licensing Board (ASLB).
This brief is suomitted oursuant-to 10 CFR 2.762.
l Nontimely filings for Intervention in this proceeding are governed by 10 CFR 2.714 (a)(1) which provides that:
Nontimely filings will not be entertained absent a
determination by the Commission, the presiding L
officer or the Atomic Safety and Licensing Board designated to rule on the petition and/or request, that the petition and/or request should be granted based upon a
balancing of the following f actors in addition to those set out in paragraph (d) of this section:
(1)
Good
- cause, if any, for failure to file on time.
(ii)
The availability of other means whereby the petitioner's interest will be protected.
(iii)
The extent to which the petitioner's l
participation may reasonably be expected to assist in i
developing a sound record. l'
i 1
J (iv)'
The extent to which the petitioner's I
interest will be represented by existing parties.
(v)
The extent to which the petitioner's f
participation will broaden the issues or delay the proceeding.
In the determination of the ASLB embraced within the January 16,
- 1990, MEMORANDUM AND ORDER (Denying Petition to Intervene),
the ASLB determined that Appellants' met factors (ii) and (iv) of those delineated above at 10 CFR 2.714 (a)(1).
Therefore, Appellant's need only address 10 CFR 2.714 (a)(1) i factors (1),
(iii),
(v) and 10 CFR 2.714 (a)(3)(d) of the regulations in Appellant's aDpeal brief.
II. J SSUES FOR C,QNSIDERAT.LQN 1.
Did the Appellants demonstrate good cause for failure to file on time ?
ASLB answered: No.
2.
Did the Appellants' demonstrate the extent to which the Appellant's participation may reasonably be expected to assist in developing a sound record ?
ASLB answered: No.
3.
Did Appellants' demonstrate the extent to which the Appellant's participation will D21 broaden the issues or delay the proceeding ?
ASLB answered: No.
4 Did the ASLB properly consider all of the factors delineated within 10 CFR 2.714 (a)(1) which includes 10 CFR 3-
n-i i
I 2.714 (a)(3)(d) in their determination embraced within the i
January 16,
- 1990, MEMORANDUM AND ORDER (Denying Petition to Intervene) ?
The ASLB did not.
In order for Appellants' to prevail on this
- matter, Appellants' must satisfy at least one of the three remaining l
t factors found in 10 CFR 2.714 (a)(1) or demonstrate that the ASLB failed to consider Appellant's petition satisfying the requirements of 10 CFR 2.714 (a)(3)(d).
III. &IATEMENT OF AUTHORITY The ASLAP has the responsibility to issue a final decision j
and order in this matter. Congress has delineated this authority tc the ASLAP through Title 10 of the Code of Federal Regulations.
The ASLAP has full authority to reverse the decision of the ASLB,_
to require further evidentiary proceedings, and to read contrary conclusions of law. Accordingly, although this brief is filed in the nature of an appeal with supporting memorandum, Appellants' additionally seek Oral Argument pursuant to 10 CFR 2.763 of the regulations.
IV. APPELLANT'S APPEAL FROM THE JANUARY 16, 1990 MEMORANDUM AND ORDER (Denvina Petition to Intervene)
Appellants' hereby appeal from the January 16, 1990 MEMORANDUM AND ORDER (Denying Petition to Intervene) of the Honorable Judge B.
Paul
- Cotter, Jr.
and the Honorable ASLB
[
i i
l members Glenn O.
Bright and Jerry Harbour in which the ASLB i
denied Appellant's Petition to Intervene.
l Appellants' request that the ASLAP review the case pursuant to their authority as outlined in 10 CFR 2.762, 10 CFR 2.785 and 10 CFR 2.786.
For the reasons asserted in the attached Memorandum of Exceptions, Appellants' maintain that the facts l
presented and established in their Request for Hearing and f
Petition for Leave to Intervene in this matter, along 'aith tne their Clarification of Contentions and Answer to Licensee's
Response
in Opposition to NEAP /Saporito Petition for Lanve to Intnrvene ared established icgui authority on the relevant issues of law, demonstrate that Aope11 ants' met their burden within 10 t
CFR 2.714 (a)(1) and should be granted Intervention.
FOR ALL THE REASONS CLAIMED HEREIN AND ON THE BASIS OF THE I
FULL EVIDENTIARY RECORD BEFORE THE ASLAP, Appellants' seek a final decision ano order granting a
Public Hearin0 and Intervention in this matter.
4 V.
EXCEPTIONS TO THE FINDINGS OF FACT AND CONCLUSIONS OF THE ASLB In reaching their
- decision, the ASLB failed to properly consider evidence presented, did not balance the evidence presented, and did not fairly apply controlling law to the evidence established for the purpose of determining whether Appellants' met their burden for late Intervention.
, i
i Simply stated, the ASLB erred in the application of the law in evaluating the facts presented in the petition.
It is understandable on the basis of their decision, why the ASLB did not properly engage in the exercise of weighing and balancing the evidence before them.
1.
In the MEMORANDUM AND ORDER (Denying Petition to Intervene),
(hereinafter MAO), at 16 in the footnote, the ASLB states:
Because we conclude that the instant petition was l
inexcusably late and its acceptance is not supported by a balancing of the other factors set out at 10 CFR 2.714 (a)(1),
we need not address the standing argument;
made Oy the parties...Nonetheless, we note that ev6n if petitioners' assertions supporting their standing are given all reasonable weight possible, an affirmative finding of either individual or organizational standing would be at best a close call."
It is clear that the ASLB viewed the arguments in Appellant's petition wearing the shoes of the licensee.
In doing so, the ASLB erred in their analysis of the controlling law.
This case is a matter of administrative law which provides r
for broad latitude in the weighing and balancing of the evidence.
The ASLB stepped outside' of their authority and controlling law by failing to consider the evidence in support of Intervention pursuant to 10 CFR 2.714 (a)(3)(d).
The ASLB is compelled by the Federal Regulations to fully h-comply with the regulations in their determination for Intervention in this case.
The ASLB could have permitted Appellants' to intervene as a
matter of discretion because l
L l
Appellants' met the standards established by the Commission for such discretionary intervention. Portland General Electric Co.
(Pebble Sprinos Nuclear Plant. Units 1 and 2). CLI-76-27.4 NRC 610. 614-17 (1976): Three Mile Island. suora. 18 NRC at 333.
Additionally, an organization can establish standing either an organization or as a representative of one or more of its as i
members whose interests may be affected.
Residence of at least one member in close proximity to the facility, considered alone, would estaD11sh such representative standing.
To do so, ths organization must provide the name and address anc representation authorization from at least one member with a-sufficient interest in the proceeding.
R}
NRC 116 (1'J87).
Appellants' provided the names a*Ki addresses of four NEAP members along with signed statements authorizing representation by NEAP and Mr. Saporito.
2.
The ASLB failed to properly consider and weigh the evidence germane to " Good cause, if any. for failure to file on time."
in that Mr. Saporito was an employee of the licensee at the time of the filing of the amendment request and that.Mr.
Saporito was engaged in " protected activities" as defined within i
42 USC 5851.
The Commission's regulations clearly contemplate that employees of an applicant (licensee), would participate in
)
a licensing proceeding by way of testimony. See 10 CFR 50.7 (a)(1)
The licensee initated actions against Mr.
Saporito in -i..
1 i
violation of 42 USC 5851 because he contacted the NRC about safety concerns at the Turkey Point nuclear plant, the very same nuclear plant in these license amendment proceedings.
Mr.
t Saporito was not cognizant of the severe radiation damage to the reactor vessels until some time in 1989 and therefore could not have filed a timely petition.
Assuming the arguendo that Mr. Saporito was cognizant of the radiation damage to the reactor vessels in October 1988, he still would not have filed & timely petition due to the illegal employment actions directed at him by the licensee for his whistleblowing.
Even after Mr.
Saporito became aware of the radiation damage to the reactor vessels in 1989, he wa6 not l
cognf rarit of the method to file a petition for intervention through notice of the Federal Register and therefore could not have filed a timely or nontimely petition for intervention.
Egg Pennsylvania Power and Licht Co. (Suscuehanna Steam Electric Station.
Units 1
2).
ALAB-148. 6 AEC 642. 643 n.2 (1973).
Also, See 23 NRC 165 (1986).
Furthermore, the ASLB failed to-consider that Appellants' had not discovered the full extent of their safety concerns until late in 1989 after they had extensively researched the essence and material facts of the issues involved in this proceeding.
Therefore, Appellants' could not have filed a timely petition and thus, filed a nontimely petition to address their new safety concerns, some of which Intervenors' had not.
l I
addressed.
See Consumers Power Co. (Midland niant. Unita 1 and r
2). LBP-82-63. 16 NRC 571. 577 (1982).
Appellants' proffer here that Mr. Saporito's employment status coupled with the luming threat of employer retaliation, his lack of actual
- notice, and his unrealization of the existence of possible safety concerns cumulatively justify the l
failure to file a timely petition to intervene.
The ASLB failed to properly and fairly evaluate and analyze evidence concerning the sr.fety issue of the reactor vossais copper content.
M*.
Saporito had conveyTd shis safety issue to the NRC by filing a 10 CFR 2.206 Show Cause petition cecause he felt that Intervenors concerns in this area were weak and that
[
his concerns in this area would not be entertained by the ASLB with a request fcr intervention because Intervenors were already addressing this issue to some extent.
Ironically, the NRC Office of Nuclear Reactor Regulation, rejected his 10 CFR 2.206 petition stating that the safety question related to the copper content of the reactor vessels would be addressed by Intervenors at the scheduled hearing.
Subsequently, Intervenors withdrew their copper contention from the proceedings and
- thus, Appellants' were forced to file a nontimely petition for Intervention as all other avenues to h
address this safety issue were now blocked.
The copper content of the reactor vessels is a paramount safety issue and for this reason alone, Appellants' should be
-g-
r l
l 5
I 4
granted nontimely Intervention.
The ASLB erred in their MAO at 10 stating that:
"(2) he relied upon Intervonors to address his copper content concerns through their Contention No.
l 3."
This position taken by the ASLB was simply not fully i
explored by the ASLB -because as evidenced above Appellants' filed a
10 CFR 2.206 petition to address their safety concern about the copper issue.
Appellants' placed no reliance, what so
- ever, or: Inter-venors to address their safety concern germane to the copper lasue prior to their filing the 10 CFR 2.206 petition.
Only after the 10 CFR 2.206 petition was rejected by the
- NRC, did Appellants hope to have their safety concern addressed by Intervonors and at least by Appellants' since Appellants' j
were granted a limited appearance statement at the Intervenors hearing.
Surprisingly, the ASLB canceled Intervenors hearing, avenue at all for Appellants to address their thus leaving no safety issue of the copper content of the reactor vessels.
- Finally, the ASLB failed to properly and fairly consider l
NEAP's interest as an independent organization in this matter.
NEAP was not incorporated and not even in existence as an organization until late in 1989 when it was founded and created by Mr.
Saporito.
Therefore, NEAP standing alone as a separate
- entity, could not have filed a timely petition for Intervention in this proceeding.
As an organization NEAP has a right to 4 h
,. ~.. _ _... -... - _. _ - _..
C e
represent the interests of its members who might suffer injury i
as a result of the license action in this proceeding. Therefore, NEAP should have been granted Intervention as a matter of right.
see 25 NRC 116 (1987):
Transnuclear. Inc. (Ten Acclications for Low-Enriched Uranium Exoorts to EURATOM Member Nations).
CLI-77-24.6 NRC 525. 531 (1977): ll*;tiand General Electric Co.
(Pebble Scrinas Nuq13.ar Plant. Units 1 and 2). CLI-76-27. 4 NRC 610.
613-14 (1976)* Houston Linhtino and Power Co. (South Texas P ro_1 e c t.
UnitiL. I and 2). ALAp f49. 9 E M. 646-47_(197911.
E @ liq __ service _,00.
of Indian _6_JJda.ttL)_9_lij )_1 Nuclear ___Generatinn Stetion.
Unita 1 and 2). ALAB-522. 9 NRC 54. 56 (1979)_._HpSit2D l
Lichtino and Power Co. (A11ong_ Creek Nucle,ar_.,Generatina Sta uGDA
-Vn44r-4-). ALAB-535. 9 NRC 377. 393-97 (1979).
The ASLB gravely erred in their MAO at 12 stating that:
"Having found Mr. Saporito's individual petition to intervene inexcusably late, his own logic requires that we similarly find the lateness of NEAP's petition wholly unjustified."
The ASLB erred as a matter of law Dy not considering and weighing NEAP's interest separately from Mr. Saporito's and relying on Mr. Saporito's logic as a reason to not properly and fairly consider NEAP as an independent organization and party in this proceeding.
The law requires the ASLB to consider NEAP as an organization representing its members who reside within the NRC
" zone of interest" as a matter of right and therefore the ASLB.can not arbitrarily dismiss their cuty in this regard.
Appellants' would assert here that they have advanced
- 11
i reasons which, either singly or in combination, constitute " good l
1 cause" for their delay in filing their petition to intervene, therefore, the ASLAP should grant Appellants' request for j
Intervention in this proceeding, j
3.
The ASLB failed to properly and fairly consider Appellant's evidence satisfying third factor of 10 CFR 2.714 (a)(1),
"The extent to_which the cetitioner's carticioation may L2A2tnRDIY - be exoected to assist in developino a sound record."
t The A3LB gravely erred in their MAO at 13 stating that:
5 "We do not doubt the sincerit*, of petitioners' conviction that their infJrmation and assistance uould help in developing a cound and complete record in this proceeding.
However, in light of petitioners' avowed interest in pursuing areas of inquiry no longer at 1ssue before this Board, the potential significance of i
their contribution to the resolution of the issues currently pending before this Board is, at best marginal."
Appellants' demonstated in their ret 1 tion, evidence that they have knowledge of the nature of the factual background and
[
specific issues involved in Intervenors contention and of specific issues involved in their own contentions.
Furthermore, Appellants' identified special expertise. (instrument control specialist),
and experience that its members posess which would l
enable them to address those issues.
- Finally, Appellants provided specific and detailed information in support of factor (iii).
They set out with as l
much particularity as possible the precise issues they plan to cover,- identified their prospective witnens (Dr George Sih),
f 4
! \\
j L
1
[
i and summarized their proposed testimony.
The ASLB erred as a matter of law by not properly and fairly considering this i
evidence.
See Mississ1 Doi Power 8 Licht Co. (Grand Gulf Nuclear Station.
Units 1
and 2). ALAB-704. 16 NRC 1725. 1730 (1982):
Shoreham. 18 NRC at 399.
4.
The final issue for' consideration by the ASLAP concerns factor (v) of 10 CFR 2.714 (a)(1) which states "The extent to which the Detstioner's carticioation will broaden the issues or delay the proceedinot The ASLB erred by not properly anc fairly i
considering Apoellants' evidence shes their carticipation would i
not delay the preueedin0s.
Tet6 ASLO stated in their HAO at 15 that:
...potitioners proffered contentions focus on different matters than those addressed in Intervenore' remaining contentions.
1A3.
Clarificat1on at 10-13.
Thus, the purpose of the instant petition is, in fact, to broaden the scope of this proceeding.
While this consequence of a
late intervention might not be of critical importance at the earlier stages of a case, we find it to be a
strong argument against such intervention where it occurs toward the end of the proceeding..."
The ASLB erred as a matter of law in that the amendment is already in force, therefore, Appellants' participation will not delay the proceeding.
Any harm visited upon the Licensee by the lateness of the filing was obviated when the Commission issued the amendment without considering the petition.
See 23 NRC 165 L19M.1
In summary, Appellants' submit that they have demonstrated good cause for this nontimely filing of their petition.
Should the ASLAP find absence of good cause, Appellants' submit that they have made the necessary compelling showing with respect to the remaining four factors.
Appellants' have demonstrated an ability to contribute to the development of a sound record.
Appellants' interests are not being represented by an existing party
- and, in fact, Intervenors' hearing was canceled.
- Finally, Appellants participation would not Jel.2y this procceotng.
vi. poNCkk112h For the reasons set forth above, the Petition of Thomas J.
Sapor 1to, Jr.
and the Nuclear Energy Accountability Troject should be granted and a public hearing ordered.
Respectfully submitted, s
Thomas J. Saporito, Jr. f Executive Director, NEAP'..
Dated this 5th day of Nuclear Energy Febuary, 1990 at Accountability Project Jupiter, Florida.
1202 Sioux Street Jupiter, Florida 33458 cc: Service Sheet (407) 743-0770 A
I 1 L..
s'.
e l'OlhE IL L' U$NRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSWN FEB 22 A10:42 ATOMIC SAFETY AND LICENSING APP g Pg g ggzggy h0CKillHC, A SliiVICI.
BRANCH l
In the Matter of
)
Docket Nos. 50-250-OLA-4
)
50-251-OLA-4 i
Flor 1da Power & Light Co.
)
)
(Pressure / Temperature Limits)
(Turkey Point Nuclear Plant,.)
Units 3 and 4)
)
ASLBP No. 89-584-01-OLA
)
Q1[LTIFICATE OF SERVICE I
hereby certify that copies of the foregoing APPELLANT'S APPEAL Fn0?4 THE JANUARY 16> 1990 MEMORANDUM AND ORDER (Denying Petition to Interveno),
have been served upon the following l
l persons by U.S. mail, first clast.
Administrative Judge Administrative Judge Christine H. Kohl, Chairman Thomas S. Moore Atomic Safety and Licensing Appeal Atomic Safety and i
Licensing ippeal Board Board U.S. Nuclear Regulatory Comminaion U.S. Nuclear 3eg. Comm.
I Washington, D.C.
20555 Washingtor., D.C. 20555 Administrative Judge Administrative Judge Howard A. Wilber B. Paul Cotter, Jr.
Atom 1C Safety and Licensing Appeal Chairman, Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Reg. Comm.
Washington, D.C.
20555 Washington, D.C. 20555 Administrative Judge Administrative Judge Glenn O. Bright Jerry Harbour Atomic Safety and Licensing Board Atomic Safety and l
U.S. Nuclear Regulatory Commission Licensing Board Washington, D.C.
20555 U.S. Nuclear Reg. Comm.
Washington' D.C. 20555 Janice E. Moore, Esquire Office of the General Counsel Joette Lorion Director U.S. Nuclear Regulatory Commission Center / Nuclear Resp.
Washington, D.C.
20555 7210 Red Road, #217 Miami, Florida 33143 Harold F. Reis. Esquire Attorney for FPL Newman & Holtzinger, P.C.
[
ingto
.C bb36 By:
Dated:
Febuary 5, 1990