ML20028G373
| ML20028G373 | |
| Person / Time | |
|---|---|
| Site: | Washington Public Power Supply System |
| Issue date: | 02/07/1983 |
| From: | Wagner M, Matt Young NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| ISSUANCES-OL, NUDOCS 8302090021 | |
| Download: ML20028G373 (9) | |
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t 2/7/83 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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WASHINGTON PUBLIC POWER SUPPLY SYSTEM Docket No. 50-460 OL
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(WPPSS Nuclear Project No.1)
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NRC STAFF POSITION ON THE IS,SUANCE OF AN ORDER TO PREVENT THE PUBLIC DISCLO91RE OF THE IDENTITY OF MEMBERS THROUGH WHOM AN ORGANIZATION SEEKS TO OBTAI.N STANDING v
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INTRODUCTION During the special prehearing conference held pursuant to 10 CFR 62.751a in the above-captioned proceeding on January 26, 1983, the Licensing Board requested that the parties submit simultaneous filings on the issuance of an order that would permit limited disclosure of the
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names and addresses of members through whom the Coalition for Safe Power (Petitioner or CFSP) seeks to obtain standing. Tr. 107. The possible need for such a protective order arises from CFSP's allegation that public disclosure of the names of CFSP members who have standing in their own right may lead to harassment and embarrassment of such members. The Staff position on the propriety of such an order is set forth belcw.
II. BACKGROUND On August 16, 1982, the Nuclear Regulatory Comission published a notice of opportunity for hearing in the captioned matter (47 Fed. Reg. 35567 (1982)). The notice established September 15, 1982 as the DE.0IGtATED ORIGINAL certified BY__ b 2
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. deadline for filing a request for hearing and petition to intervene. On September 10, 1982 CFSP filed a " Request for Hearing and Petition for Leave to Intervene" (Petition), pursuant to 10 CFR I 2.714.
In support of the Petition, CFSP submitted an affidavit by Mr. Eugene Rosolie, Director of CFSP (Roso11e Affidavit), attesting that Petitioner has members who live within a fifty-mile radius of WPPSS Nuclear Project No. 1 (WNP-1) and as close as 20 miles, and that certain of those members had authorized CFSP to file the Peti, tion on their behalf.
While Staff responded that the Petition as then drafted did not l
9 satisfy the requirements of 10 CFR I 2.714, it did not object to admitting Petitioner as a party to this proceeding provided CFSP amended its Petition to cure certain enumerated deficiencies and submitted at lease one admissible contention in conformance with NRC regulations.
See NRC Staff Response to Coalition For Safe Power Request for Hearing and Petition for Leave to Intervene, dated September 30, 1982. The specific deficiencies noted by the Staff were that the Petitioner had not sufficiently identified at least one member of its organization (by name
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and address) who has standing and who has authorized Petitioner to represent p
its interests. Applicant opposed the Petition.
By Memorandum and Order dated October 13, 1982, the Board found that CFSP's Petition was defective. The Board granted Petitioner leave to amend its Petition by supplying the name and address of at least one member with standing to intervene, and by demonstrating either explicit representational authorization or facts which would support a presumption of authorization in this case. Order at 4-6, citing Houston Lighting and Power Company (Allens Creek Nuclear Generatiiig Station, Unit 1), ALAB-535, 9NRC377,393(1979).
j On November 2,1982 Petitioner timely filed a document entitled
" Coalition for Safe Power Amendment to Request for Hearing and Petition for Leave to Intervene" (Amended Petition). The Amended Petition did not disclose the name and address of either of the two members referred to in the Rosolie Affidavit. See Tr. 90-91.1/ CFSP now seeks to limit the disclosure of the identities of the two members through the issuance of a protective order. Thus, the issue presented for consideration in these cirumstances is whether a protective order limiting the disclosure of the names of CFSP members upon whom CFSP, relies f,or standing is appropriate.
TTT. DISCUSSION At the special prehearing conference, CFSP requested that the Board issue a protective order to prevent the public disclosure of affidavits it seeks to file containing the names and addresses of two members who allegedly reside near the plant. Tr. 91-92. As a basis for its request, CFSP alleged that (1) CFSP members had been harassed and asked to withdraw their support for the CFSP petition filed with respect to Skagit/Hanford Nuclear Project construction permit extensions (Tr. 90),2_/ (2) the two I
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Attached to the Amended Petition was an affidavit of Larry L.
Caldwell (Caldwell Affidavit) which Petitioner submitted "to satisfy the identification requirements established in Houston Lighting and
_ Power Company... cited in the Board's Order.' Tt the January ET, 1983 prehearing conference Petitioner stated that Mr. Caldwell was not a member of CFSP at the time of the Federal Register deadline for the filing of its Petition.
(Tr. 90-91). Whether " good cause" exists for the late filing of the Caldwell Affidavit will be the subject of a separate briefing pursuant to Order of the Board (Tr.122-24).
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CFSP stated: "[T]he reason we chose [to submit the Rosolie affidavit]
in the first place was because of the difficulties we have had with what we consider harassment by the utility of our members in trying to get them to back down after we had filed Petitions on extensions for construction permits and on the Skagit/Hanford Nuclear Project construction permit."
e members who reside near WNP-1 feared employment problems or reprisals agr. inst them (Tr. 91,100), and (3) the two members feared that public disclosure of their names would result in their being contacted
" indiscriminate 1y by other parties" (Tr.100). With respect to the third allegation, CFSP stated that the member who sponsored its petition regarding the construction permit extension requests had been contacted by either 1
WPPSS lawyers or WPPSS management. Tr. 95-%; Tr. 40-41.
Assuming the Board finds that t,he balancing of the five factors in I
10 CFR l 2.714(a)(1) favors granting Petitipner the opportunity to cure deficiencies in its petition by submitting an amendment which sufficiently identifies the two members who allegedly reside near WNP-1.E the Board may issue a protective order to provide for a limited disclosure of the names.
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Since any further amendment of CFSP's Amended Petition to identify CFSP members with standing would necessarily occur subsequent to 15 days prior to the special prehearing conference, a favorable balancing of the five factors of 10 CFR i 2.714(a) is required before such an amended petition reay be considered.
10 CFR i 2.714(a)(3).
The Staff believes that such a favorable balancing exists in this case.
As for the first factor, whether there is good cause for the filing delay, these p_r_o se Petitioners have stated that they thought that the filing of the CalTwell affidavit cured the deficiencies in their first filing.
(See, e.g., Tr. 96; Tr.112-14). Accordingly, Petitioner arguably has demonstrated good cause for its failure timely to amend its petition to correct the noted deficiencies. The second and fourth factors of I 2.714, the availability of other means and other parties to protect petitioner's interest, weigh in favor of the granting of a further amendment, for there may be no means other than participating in a proceeding on the licensing of WNP-1 which would afford the same degree of protection with regard to WNP-1. As for the third factor, the extent to which petitioner can assist in developing a sound record, Petitioner has not indicated i
that it possesses any special expertise, that it has retained qualified experts or that it could assist in any other manner in developing the record. This factor weighs against further amendment. As for factor five, it is true that participation by CFSP would " broaden the issues" and " delay the proceeding" because no hearing would be held if Petitioner's request for hearing is not granted. On the other hand, in view of the estimated completion date for WNP-1 a hearing would not delay the ultimate decision on granting an operating license for WNP-1. Accordingly, while factor five weighs against permitting an amendment, it should be accorded little weight in this case.
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To determine whether the circumstances cf this case warrant the issuance of a protective order the Licensing Board should follow the guidance enunciated by the Appeal Board in Allens Creek, supra.
In that case, the Houston Chapter of the National Lawyers Guild (Guild), whose standing to intervene was wholly dependent on the personal standing of its members, maintained that revealing the names of particular members who resided within a fifty mile radius of the proposed plant would invade
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their privacy and subject them' to surveillance, intelligence gathering j
and security activities of the NRC, applicant, and local law enforcement 4
j authorities. Allens Creek, supra at 389. The Appeal Board characterized the Guild's showing as follows:
All that the Guild has supplied are broad, vague, and essentially unsupported allegations that known opponents of nuclear power have been and will continue to be the victims of illegal harassment of various types at the hands of utilities and governmental agencies.
M.at399.
In addition, the Appeal Board took official notice that names of members upon whom an organization relies for standing have customarily l
been provided in NRC licensing proceedings and the Appeal Board was not aware l
of any case of reprisal nor had the Guild documented any. M.at399-400.
Moreover, the Guild had failed to make a " concrete demonstration that its members (had] been subject in the past, or [werel likely to be sub.iected in the future" to reprisal. M.at399. Thus, the Appeal Board concluded the record was insufficient to allow a finding that disclosure of the names would invade rights of association.
The Appeal Board also found that the Guild's showing of harassment contrasted sharply with the showing held sufficient in NAACP v. Alabama,
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357 U.S. 449 (1958], to overturn an order compelling disclosure of the NAACP's entire Alabama membership list.4/ Another important distinction between the cases was that the names of NAACP members were being sought for a wrongful purpose whereas under NRC Rules of Practice the Guild need only name a single member with a personal interest in the proceeding.
Allens Creek, supra at 399.
The Appeal Board's guidance to licensing boards regarding treatment of claims similar to those raised by the Guild in Allens Creek is controlling in the present case. There the, Appeal Board stated:
Upon a determination that an adequate showing has been made that public revelation of the identity of a member of the petitioner organization might threaten rights of association, the licensing board should place a protective order upon that information. The order should provide that the information need be supplied only to members of the Board and one or more designated representatives of the other parties to the proceeding... [and] it should prohibit further dissemination of the information to anyone (other than a member of a reviewing tribunal).
H.at400. Accordingly, this Licensing Board can issue a protective order that would prevent the public disclosure of the information contained in the affidavits of the two CFSP members. This procedure would provide the i
Board and parties with sufficient infomation to verify for themselves, by independent inquiry, the truthfulness of CFSP's claim of standing.
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In NAACp v. Alabarr.a. 357 U.S. at 462-63, the Court found that an "uncontroverted showing" had been made that revelation of the identity of members had led to ernnomic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.
The Allens Creek Appeal Board found that at a minimum the Guild would have been expected to make a more particularized showing of harassment than that which had been made by the NAACP, for the climate surrounding nuclear power could hardly be equated with the struggle for racial justice in the South during the late 1950s. Allens Creek, supra at 398-99.
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. Y Applying the guidance of Allens Creek to the facts in this case, CFSP's bare and unsubstantiated statements at the prehearing conference do not provide a concrete demonstration of harassment necessary for the issuance of a protective order.
It is the Staff's view that Petitioner could be required - if challenged by one of the parties - to make a concrete showing of harassment, under the teachings of Allens Creek, in order to justify protecting the names of CFSP members from unlimited public disclosure. The methods by which Petitioner might seek to make such a showing could presumably include som,e sort of a collateral evidentiary hearing, the submission of affidavits wh ch, themselves, might need to be the subject of orotective orders, or some other procedure which could entail the expenditure of substantial resources by the Petitioner, Staff, Applicant and the Licensing Board. This might be avoided, however, if Petitioner, Staff and Applicant were to reach agreement and consent to the issuance of a protective order without the factual demonstration anticipated by the Appeal Board in Allens Creek.
Under such an agreement, Petitioner could agree to disclose the names and p
addresses of those members upon whom it relies to the Licensing Board, Staff Counsel and Counsel for the Applicant, all of whom would agree not to disclose the names. This would allow independent judgments to be made l
on the standing of CFSP's members without full public disclosure of those members' names which is feared by CFSP.
To summarize, under Allens Creek, CFSP can be reouired to identify at least one member by name anti address to satisfy the requisite standing under 10 CFR 62.714.
In addition, under that case, Petitioner could be required to make a concrete demonstration of past harassment or likelihood of future harassment to warrant issuance of a protective
O, i t 9 order. The Staff believes, however, that the Board would not be precluded from issuing a protective order without a concrete demonstration of harassment if the parties were to consent to the issuance of the order.
The Staff would not object to the issuance of an order limiting the disclosure of CFSP member names under such an agreement and urges the parties to pursue the prospects of such an agreement.
IV. CONCLUSION For the reasons stated above, even tho, ugh CFSP has not made a
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concrete demonstration that the issuance of a protective order is warranted, the Staff does not object to the issuance of such order with the consent of the parties.
Respectfully submitted, l%
f E.Wahler Mar 3 Coursel for NRC Staff M
MitzfA. Young
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Counsel for NRC Staff Dated at Bethesda, Maryland this 7th day of February,1983 b
l' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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WASHINGTON PUBLIC POWER SUPPLY SYSTEM Docket No. 50-460 OL
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(WPPSS) Nuclear Project No.1)
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CERTIFICATE OF SERVICE j
I hereby certify that copies of "NRC STAFF., POSITION ON THE ISSUANCE OF -
4 AN ORDER TO PREVENT THE PUBLIC DISCLOSURE OF THE IDESTITY OF MEMBERS THROUGH WHOM AN ORGANIZATION SEEKS TO OBTAIN STANDING" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Comission's internal mail system this 7th day of 4
February 1983:
- Herbert Grossman, Chairman Gerald C. Sorensen i !
Administrative Judge Manager, Licensing Programs Atomic Safety and Licensing Board Washington Public Power Supply System i
U.S. Nuclear Regulatory Commission 3000 George Washington Way li Washington, DC 20555 Richland, Washington 99352
- Glenn 0. Bright
- Atomic Safety and Licensing Administrative Judge Board Panel if Atomic Safety and Licensing Board U.S Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20535 i
- Atomic Safety and Licensing Appeal
- Dr. Jerry Harbour Board Panel Administrative Judge U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555
- Docketing & Service Section U.S. Nuclear Regulatory Comission Nicholas S. Reynolds Washington, DC 20555 Debevoise & Liberman 1200 Seventeenth Street, NW Nicholas D. Lewis, Chairman Washington, DC 20036 State of Washington i
Energy Facility Site Evaluation Eugene Rosolie Council Coalition for Safe Power Mail Stop PY-11 Suite 527 Olympia, Washington 98504 408 South West Second Street ff jk Portland, Oregon 97204
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Wagnerfor NRC b'taff Mary E i
Counse i
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