ML20034C260
| ML20034C260 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 04/24/1990 |
| From: | Anderson G, Bloch P, Johnson E Atomic Safety and Licensing Board Panel |
| To: | FLORIDA POWER & LIGHT CO., NRC OFFICE OF THE GENERAL COUNSEL (OGC), NUCLEAR ENERGY ACCOUNTABILITY PROJECT |
| References | |
| CON-#290-10288 90-602-01-OLA-5, 90-602-1-OLA-5, OLA-5, NUDOCS 9005020233 | |
| Download: ML20034C260 (11) | |
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AprkbCkbC01990 USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
% APR 25 100:01 ATOMIC SAFETY AND LICENSING BOAR.rhCE N [
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. d tru:I' Before Administrative Judgest-if,.t:-
Peter B. Bloch, Chair-Dr. George C. Anderson Elizabeth B. Johnson
,85WED APR 2 5 1990 In the Matter of Docket Nos. 50-250-OLA 50-251-OLA-5 FLORIDA POWER AND LIGHT COMPANY Technical Specifications.
Turkey Point Plant Replacement (Unit Nos. 3 and 4)
Facility Operating ASLBP No. 90-602-01-OLA-5 Licenses Nos. DPR-31, DPR-41 MEMORANDUM AND ORDER (Motion to Withdraw)
MEMORANDUM On April 1, 1990, Thomas J.
Saporito, Jr.,
filed a
" Notice of Withdrawal from Proceeding."
Answers have been filed by Florida Power & Light Company (Applicant) on April 13, 1990 and by the Staff of the Nuclear Regulatory Commis-sion on April 23, 1990.
The Notice of Withdrawal raises some interesting ques-tions because of allegations made without proof and because of ambiguity in the filing.
In addition, were we to grant Mr. Saporito's notion to withdraw, we would have to confront issues concerning the standing of the Nuclear Energy Accoun-tability Project (NEAP) that we did not address at our prehearing conference because they appeared to be moot.
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. I.
Unproven Allegations and Ambiguities A.
Unproven Allegations Mr. Saporito stated in his motion that he was with-drawing both as an individual petitioner and as a person on whom NEAP relies for standing because he felt intimidated by actions of the Applicant.
However, he has not persuaded the Board that there is any valid reason for his serious charge of intimidation.'
An allegedly intimidating event of which we have been informed is a letter of March 7, 1990, sent by Mr. John T.
Butler, counsel for Applicant, to Mr. Saporito's employer.
We have examined that letter and have concluded that it was
'We do not find that "Intervenor's Answer to Ap-plicant's April 13, 1990 Response.
April 20, 1990, is a permissible filing because it is a reply to Applicant's answer and is not provided for under the rules.
Further-more, we do not find any good cause for permitting petition-er to reply because it has not demonstrated that there was anything in the answer that could be considered a surprise.
We note that the allegation of "ex parte" contact made on page 3 of that filing is entirely without basis as there is no prohibition about one party communicating with another outside the knowledge of the Board.
(We consider the re-quest for sanctions to be within the scope of the initial filing but to require proof, not just strings of adjectives such as is found on page 2: " outrageous, unethical, un-professional, intimidating, harassing, coercing, and a violation of the ethics code against intimidating potential witnesses.")
In a separate matter, raised on page 12 of this filing, NEAP mentions having received a copy of the. Applicant's Current Technical Specifications and he requests an exten-sion of time to amend his pending contentions because of
" good caum.-."
However, no good cause is specified so we do not find any good cause and the request for an extension of time is denied.
See Tr. 20-21, 231-32.
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- ! l a simple factual inquiry for.the purpose of confirming facts f
concerning Mr. Saporito's employment.. There is nothing in i
the letter that we consider to be intimidating.
Indeed,=all the letter may have done with respect to Mr. Saporito's employment relationship is to bring to the employer's atten-tion, in a neutral manner, a fact that is common knowledge and that Mr. Saporito reasonably must have expected his.
employer to learn during the course.of.this litigation: that Mr. Saporito is involved in a case affecting Florida Power and Light, a customer of Mr. Saporito's employer.
In addition to the' March 7 letter, Mr. Saporito's-em-ployer also received a copy of a letter sent by Mr. Butler to Mr. Saporito on March 19.
In that letter, Mr. Butler i
assured Mr. Saporito that "neither. Florida Power & Light l
1 Company nor I had any hostile or coercive motives in making 4
the inquiry (of March 7)."
Since the contents of Mr. But-ler's letter was not directly relevant to any interest of Mr. Saporito's employer, there does not appear to be any strong reason for him to have sent a copyLof the letter to i
the employer and -- in light of Mr. Saporito's earlier com-plaint -- Mr. Butler might easily have anticipated that Mr.
f Saporito could have felt coerced by this procedure.
Mr.
l Butler could have avoided the appearance of coercion by not copying the employer.
However, he may also have felt that the letter would reassure the employer about there being no coercive intent and we find that the routine copying of that-
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letter does not, by itself, demonstrate coercion to this t
Board.
After Mr. Saporito complained in a filing of March 9, 1990, that the March 7 letuer was intimidating, we had an j
internal Board discussion t. bout the allegation, but'we did I
not communicate to anyone our conclusion that.no intimida-tion had been demonstrated to us and that there was, there-;
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.i fore, no need for us to act on Mr. Saporito's filing, which did not request any specific action on our part.. At the Prehearing Conference that we held in Miami on March 23, i
1990, Mr. Saporito apparently also was in possession of a-l copy of the March 19 letter.
Yet, Mr.-Saporito did not raise the question of coercion at that time, and we did not I
rule on it.
8 Subsequently, we have learned from Applicant 2 that Mr.
1 Saporito filed a complaint with the Department of Labor concerning the March 7 letter; and that his complaint has been dismissed, l
It is important to the Licensing Board to get to the i
bottom of this matter.
It is not acceptable for one party i
2Applicant's Response to Notice of Withdrawal from Proceeding, April 13, 1990 (Response), at 3.
According to J
Applicant, Mr. Saporito made a complaint with the Department of Labor under the "Whistleblowing" Statute, Section 210 of the Energy Reorganization Act (42 USC S 5851), based on the March 7 letter; his complaint was dismissed by a letter of l
April 2, 1990, from Jorge Rivero, Assistant Director, Em-1 ployment Standards Administration, Wage and Hour Division, U.S. Department of Labor.
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- i to coerce another in a proceeding of this importance. - It also is not acceptable for a party to accuse another of f
coercion on our record without supporting facts.
f We also admit to being puzzled by charges of intimida-2 tion in this matter, for Mr. Saporito's fear of-intimidation
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i does_not keep him from: (? ) continuing to make public. accu-i sations against Applicant, (2) filing charges'before the Department of Labor against Applicant, or (3) continuing to represent NEAP -- though, apparently, in some "non-personal" manner that causes him to want not to be the source of 9
standing for NEAP.
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D.
Ambiguity It is not clear from Mr. Saporito's' filing whether he wishes to continue to represent NEAP or whether there is some other person to whom we should look with respect to NEAP's interests at this time.
It also is not clear whether i
he continues to be a member of NEAP.
If he is a membor, t
I then why is he not willing to authorize himself -- acting for NEAP -- to represent himself?
II.
Standing of NEAP At the prehearing conference, it did not seem nececsary to determine whether NEAP had s:canding in this case without reliance on Mr. Saporito as the member whose interest is affected by the proposed amendment.
Both Staff and Appli-t
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Turkey Point Plant to be awarded standing; so it appeared to
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be moot as to whether other members of NEAP also might pro-t vide a basis for standing.
j Should we grant Mr. Saporito's motion to withdraw, the.
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issue of standing either of the organization by itself or I
based on other members of NEAP would no longer be moot.
Of I
these questions, lack of standing of the organization'is l
straightforward.
We are convinced that NEAP does not have i
i standing as an oraanization since it is merely claiming a-generalized grievance -- alleged danger from a nuclear power i
plant -- that is shared by the general public.3 The question of standing through injury to members is L
more complex.
Although Mr. Saporito (presumably continuing j
a to act on behalf of NEAP with retpact to this question) has requested an oral argument on this issue, we are inclined to decide it efficiently, without a second oral argument, if l
possible.
I 3Transnuclear. 19g2 '(Ten Applications for Low-Enriched l
Uranium Exports to EURATOM Member Nations), CLI-77-24, 6 NRC 525, 531 (1-977); Portland deneral Electric Co. (Pebble Springs Nuclear P2snt,-Units 1 and 2), CLI-76o27, 4 NBC 610, 613-14 (1976); Vermont Yankee _Nuolear Rower Corooration (Vermont Yankee Nuclear Power Station), LBP 87-7, 26 NRC
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116, 118 (1987).
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To establish the legal frameworkLfor our consideration, let us cite w!.th approval NRC Staff Response to Petitioners' Amended Petition for Leave to Intervene, at 6:
An organization may represent the interest of I
its own members; however, the Commission's regula-
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tions do.not allow those of non-members to be rep-i resented.
Lona Island Liahtina Co._- (Shoreham Nu-l clear Pokar Station, Unit 1), LBP-77-11, 5 NRC 481, 483 (1977).
When an organization establishes standing th;/augh the interest of its members, the name and address of at least one affected member who wishes to be r. presented by the organization must be provided.
Vermont Yankee Nuclear Power i
Corp 1 (Vermont Yankee Nuclear Power Station), LBP -
87-7, 25 NRC 116, 118-19 (1987).
Petitioners fre-quently submit affidavits with their petitions to (1) establish that a person is a-member of an or-ganization, (2) identify the alleged-individual injury in fact, and (3) indicate that the member wants the organization to serve his or her inter-i eats in a representative capacity.
Houston Licht-ina and Pows
- Co. (Allen Creek Nuclear Generating Station, Unit 1) ALAB-535, 9 NRC 377, 393-94 (1979); Detroit Edison Co., et al..(Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73,-
77-78 (1973); Qpouesne Licht Co. (Beaver Vallef i
Power Station, Unit 2), LBP-84-6, 19 NRC 393, 410-11 (1984).
An organization has standing to inter-vene when its petition is signed by an officer of the organization who has the requisite personal' i
interest for intervention.
Consolidated Edison Co.
of New York (Indian Point, Unit No. 2) and Power Authority of the State of New York (Indian Point, Unit No. 3), LBP-82-25, 15 NRC 715, 728-29,-734-36 (1982).
For further legal background, we nete that Applicant I
has argued at length that:
- 11) NEAP has not demonstrated that any member' has authorized the organizacion to repre-
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'We have letters of January 3, and 7, 1990 from Astrid Weinkle and Judith White Edelson; however, neither states that the individual involved is a member of NEAP or shows
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what injury she suffers.
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construe the precedents to require'that a " member" have at least some control over the organization.3 A.
Statement Required from NEAP For us to rule on NEAP's standing,_in light of the' legal precedents, we require from NEAP a statement signed by an authorized officer of NEAP thatt 1.
The organization has decided that it desires to continue to be represented in this proceeding.
2.
Sets forth the name of_the organization's author-ized representative in this proceeding.
l 3.
Explains the nature of and privileges of member-i ship in NEAP and how the organization determines whether a particular person is a member.
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4.
States that each of the persons on whom NEAP relies for standing is a member of NEAP, including the date they became a member and that they have been a member since the beginning of this proceeding-until the present date.
l B.
Statement Required from at Least One Member We also will require from the person or persons on whom standing may be based, a statement that:
e 5Licensee's Answer in opposition to Request for Hearing and Petition for Leave to Intervene, January 10, 1990, (Ap-plicant's Answer to Petition) at 10-12.
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They desire to be represented by NEAP in this pro-
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ceeding.
2.
Establishes that they have a personal interest in the proceeding (such as their place of residence or the
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other contacts that establish that they have.a direct inter-J est; and the nature of the. interest they seek to protect).
3.
Establishes the date they became a member of NEAP H
i and that they are currently members of NEAP..
i 4.
Communicates their understanding concerning their 1
privileges as a member of NEAP and the nature of their participation in NEAP activities.
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C.
Standards for Determining Standing We expect to rule on the question of standing based on contemporaneous judicial standards, including the cases cited to us by Applicant:6 Health Research Groun. v. Ken-i nedy, 82 F.R.D. 21, 27 (D.D.C. 1979) and Hunt v. Washincton State Aeole Advertisina commission, 432 U.S.
333, 344-45 1
(1977).I Petitioner may cite additional cases that it
' Applicant's Answer to Request at 11.
7Hunt appears to stand for the proposition that a person can be a " member" of a state agency if he is required i
by law to support the agency financially and if he also exercises voting control over its officers.
Health Research Grouo found that a supporter of Ralph i
Nader's Public Citizen, which was formed to minimize the i
expense and burden of membership groups, could not be the basis for standing of a subsidiary group (also non-member-1 ship) which had an interest in the subject matter of the
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considers relevant and it may submit its own arguments con-l cerning the proper interpretation of these cases.
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III.
ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is this 24th day of' April,_1990, ORDEREO, that:
2 1.
The Nuclear Energy Accountability Project (NEAP) and Thomas J.
Saporito, Jr., shall make written filings on or before May-11, 1990, thatl t
l respond to all the questions raised in the accom-panying memorandum.
2.
A timely request for an extension of time may be granted for good cause.
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t litigation.
In this case, Judge Sirica said, at 26, that "a nexus (must) normally be provided by actual membershin or its functional equivalent measured in terms of control.
(Emphasic added.)
We are inclined to agree with the reasoned interpreta-tion of Health Research Groun adopted in Consolidated Edison-Comoany of lBpr York.(Indian Point, Unit No. 2), LBP-82-25, 15 NRC 715 (1982) at 734.
In that chse., the Union of Con-cerned Scientists had " sponsors" who were considered to be the equivalent of members.
(That the Commission decided this case on different grounds and thus did not adopt or reject the reasoning of the Licensing Board about the right j
to standing (see CLI-82-15 16-NRC 27, 31 (1982)] is neutral with respect to whether we may adopt the Licensing Board's reasoning.)
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3.
Florida Power & Light Company and the Staff'of the Nuclear Regulatory Commission shall respond to the written filings within the time limits provided
.j in the rules governing responses to motions.
4.
NEAP will not be permitted to reply to the responsive filings unless it demonstrates good 3
cause, generally only permitted-if there.is an 4
element of surprise involved.
l 5.
Failure to comply with this Order may result in dismissal from this case, j
FOR THE ATOMIC SAFETY AND LICENSING !'OARD.
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,O Dr. Ge6rge C. Anderson.
-j Administrative-Judge
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Elizdbeth B( pohnson Ada istratiVe Judge I
Peter B. Bloch Chair Bethesda, Maryland
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