ML20042E601

Intervenors Answer to Applicant 900413 Response & Intervenors Motion for Sanctions Against Applicant & Intervenors Motion for Leave to Amend Contentions.* Certificate of Svc Encl

ML20042E601
Person / Time
Site:	Turkey Point
Issue date:	04/20/1990
From:	Saporito T NUCLEAR ENERGY ACCOUNTABILITY PROJECT
To:	Atomic Safety and Licensing Board Panel
References
CON-#290-10270 90-602-01-OLA-5, 90-602-1-OLA-5, OLA-5, NUDOCS 9004260121
Download: ML20042E601 (13)

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1102 70-00CKETED USNRC UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION-ATOMIC SAFETY AND LICENSING BOARD 90 APR 23 P4 :08 Before Administrative Judges gricE OF SECRETARY Peter B. Bloch, Chair 00cKETu4G A SEiivlLI.

Dr. George C. Anderson BRANCH Elizabeth B. Johnson In the Matter of ) Docket Nos. 50-250-OLA-5

) 50-251-OLA-5 FLORIDA POWER &~ LIGHT )

COMPANY ) Technical Specifications Turkey Point Plant ) Replacement (Unit Nos. 3 and 4) )

) ASLBP No. 90-602-01-OLA 1 Facility Operating )

Licenses Nos. DPR-31, DPR-41 )

) April 20, 1990 INTERVENOR'S ANSWER TO APPLICANT'S APRIL 13,.1990 RESPONSE AND INTERVENOR'S MOTION FOR SANCTIONS AGAINST THE APPLICANT j AND INTERVENOR'S MOTION FOR LEAVE TO AMEND CONTENTIONS  ;

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The Nuclear Energy Accountability Project ("Intervenor")

l hereby answers Florida Power and Light Company's (" Applicant")

i April 13, 1990 response.  !

The Applicant states in their response that: i As was obvious'from the face of the March 7,.

1990 letter to the ATI Career Training. Center and as was subsequently explained in Mr.' Butler's March 19, 1990 letter to Mr. Saporito, the March:7 inquiry "was intended soley for the purpose of. 3 verifying the factual bases for the assertion-in I the NEAP amended petition with respect to l standing." The March-7 letter was written solely  ;

to assist Applicant's counsel in determining ^

whether to contest or concede the Petitioners' i standing. Such an attempt at confirmation or i verification was a responsible exercise of counsel's duty to his client and was not intended to intimidate or coerce any person or organization.

See ADolicant's response at 2-3 9004260121 900420 PDR ADOCK 05000250' O PDR- O3

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t Additionally, the Applicant implies in their response that a Department of Labor complaint filed against the Applicant by

- Mr. Saporito related to the actions discussed above was ,

dismissed after an investigation concluded that:

An investigation was conducted. Our investigation did not verify that discrimination was a factor in the action comprising your comp 1'ai nt. Our further finding, based on.your own statement, was that ATI Career Training Center, your present employer, has not done anything-prejudicial to you beyond simply asking you for an explanation of Florida Power &-Light's inquiry.

-Intevenor strongly disagrees with the Applicant's position as stated above and notes here that the DOL decision appears to have been prematurely reached as new evidence submitted to the .

DOL appears not to have been considered when the DOL reached their decision in the case.

Applicant's actions in contacting the ATI career Training Center are outragious, unethical, unprofessional, intimidating, harassing,-coercing, and a violation of the ethics code against intimidating potontial witnesses.

Furthermore, Applicant's counsel, Mr. John Butler, only copied his March 7,.1990 ATI letter to Mr. Saporito and he did not copy any other party to this proceeding as required by the regulations. Therefore, Intervenor asserts here that the Applicant has engaged in an exparte communication which is a violation of the regulations as applied.to NRC Administrative Licencing Proceedings.

Intervonor requests that the Board take appropriate l

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t sanctions against the Applicant for. violating the ethics code against intimidating potential witnesses and for initiating and participating in an exparte communication.

Intervenor would now address the matter of-NEAP's. standing in this proceeding. The Applicant asserts in their response at 4-5 that:  ;

NEAP's alleged activities and interests are  ;

insufficient to= confer independent standing upcn it ,

and that, therefore,.to establish standing it must do so as a representative of at least one_ NEAP member who resides in or.is otherwise engagsd:in ,

substantial activities within.the zone of: interest and who has iQentified an injury in' fact to his or her interests.related to the issuance ~of the requested-operating license amendments. The Applicant and Staff pleadings further demonstrate that what has been needed for this purpose is at least one affidavit, or its. evidentiary equivalent, which identifies a specific individual as a '4'AP member and such an injury and authorizes NEAP to represent him or her in this proceeding...

Intervenor has previously addressed NEAP's standing in their filing of March 5, 1990 " Petitioners Amended Petition for Intervention and Brief in Support Thereof". In that filing, Intervenor provided the legal and factual arguments in support ,

of NEAP's standing by stating that:

To prevail on the issue of standing, NEAP must demonstrate an interest which may be affected by the outcome of the proceeding at hand and must allege an injury in fact, and that injury must fall within the " geographical zone of interest" protected by the Atomic Energy Act or the National Environmental Policy Act. Pebble Sorinas, suora. 4 NRC at 612-613: Nine Mile Point, suora 18 NRC at 215.

An organization may establish standing on its ,

own or it may derive its standing from a member who

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.- s-posesses individual standing to intervene. Sag South Texas, suora. 9 NRC at 646.

Alternatively, NEAP can request discretionary intervention based-upon a showing of discrete.

factors established by the Commission. Foremost among these is whether participation would likely' produce "a valuable contribution" to the decision making process. Viroinia Electric and Power R Company (North Anna Power Station. Units 1 and 2).

l ALAB-363. 4 NRC 631. 633 (1976): Public Service 1 Company of Oklahoma (Black-Fox Station. Units 1 and 2). ALAB-3S7. 5 NRC 1143. 1148-50 (1977): Watts Bar. ALAB-413. suora. 5 NRC at 1422-23.

NEAP is a-non-profit environmental organization with a primary purpose focused on providing for public safety and for the protection of the environment as a whole regarding Nuclear Power Generation. NEAP's pricipal place of I business is in Jupiter, Florida which is L approximately 83. miles from the Turkey Point l nuclear plant. Thus, NEAP has established an interest which could be affected by the outcome of l the proceeding.

NEAP distributes information about the Turkey l Point nuclear. plant in Homestead, Florida. This l function provides for public education of nuclear energy issues and meets a requirement of NEAP's mission. NEAP also utilizes the legaltlibrary and the Florida International-University which are l

(10-20) miles respectively), of the Turkey point l nuclear plants.

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! NEAP has obtained authorization from the Palm Beach County and Dade County School Boards to conduct educational seminars at all of the'public (

schools in each School Board's jurisdiction.

NEAP fears that the operating license amendments sought by the Applicant:to revise the Turkey Point technical specifications, will cause the plant to be operated unsafely because of relaxod safety margins resulting in a release-of radiation into the environment which wil1 adversely affect the health, safety and well-being of NEAP's members by contaminating the. food chain and through-direct radiation exposure ultimately causing NEAP's members cancer and other related illnesses.

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NEAP fears that the operating license amendments sought by the Applicant to revise the Turkey Point technical specifications, will cause the plant to be operated unsafely because of relaxed safety margins resulting in a release of radiation into the environment which will adversely affect NEAP's real and personal property located at Jupiter, Florida by radioactive airborne fission products carried by the prevailing air currents -

which would contaminate NEAP's property.

NEAP fears that the operating license-amendments sought by~the Applicant to revise the 3 Turkey Point technical specifications, will cause -

the plant to be operated unsafely because of relaxed safety margins resulting in a release"of radiation into the environment which will adversely affect NEAP's ability to carry out its mission to inform and educate the public and school children regarding nuclear energy issues and to distribute its literature and conduct research.

NEAP has provided the names and addresses of four of its members who reside within the NRC's -

" geographical zone of interest", and in some cases, close proximity of.the Turkey Point nuclear plant.

This information was provided to the ASLB in the form of a signed " STATEMENT FOR PERMISSION TO REPRESENT". These documents also evidence -!

statements by the members that they have L voluntarily given their permission to NEAP and Mr.

! Saporito to' represent their interests in these proceedings. Ther6 fore, the members have asserted that they share the same concerns which NEAP has

! addressed regarding the Applicant's amendment L request.

l NEAP herein identifies four persons who are members in good standing with NEAP and who share NEAP's concerns regarding the Applicant's amendment requests.

Ms. Shirley Brezenoff Ms. Maria Firmino 3765 N.W. 35th Street 3070 Indian Street Coconut Creek, Florida Coconut Grove, F1 Ms. Astrid Weinkle Ms. Judith Edelson 1119 Placetas Ave. 11340 S.W. 70 Terr #2 Coral Gables, F1 Miami, Florida f

l The members named herein own real and personal property within the NRC's " geographical zone of interest" of_the. Turkey Point nuclear. plant and '

fear that the operating license amendments sought by the Applicant to revise the Turkey Point technical specifications, will cause the plant to be operated unsafely because of relaxed-safety

- margins.resulting in a release of radiation into the environment which will adversely affect their health, safety ~and well-being and real and personal property from radioactive airborne fission products carried by the prevailing air currents.-

The' Applicant's Answer _at-11 states: "In short,-to have " indicia of memership" -in an organization, the members must be_able to exercise ,

at least-some control over the organization." This position is not suported by administrative law in historical NRC proceedings and, in fact, atLleast one NRC proceeding rejected this position,- Egg Consolidated Edison Co. (Indian Point. Unit No.2).

LBP-82-25. 15 NRC 715. 733-730 (1982).

The NRC Staff's Answer at 9 states: "An

! affidavit executed by a NEAP member with the l requisite standing which authorizes NEAP to_ serve his or her interests in a representational capacity.

is required. See Beaver Valley. suora. 19 NRC at 411."

l This assertion by the NRC Staff _is simply

[ erroneous and not supported in. fact:or law.; A ,

careful reading of Beaver Valley. suDra 19 NRC at l

411 reveals that an affidavit was not required of-the petitioner, or the organization requesting to represent a petitioner, but was merely offered'to provide for representational standing. The cite clearly states:

-In order for ECNP to obtain representational standing on the basis of the interest of its member, Dr. Freedman, it must be established he has authorized the organization to represent his interest in the proceeding...

The garbled and confusing affidavit of Dr. Freedman does not designate ECNP i

to represent his interest in the proceeding. It may be argued that when f

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the Freedman statement is read in

' conjunction with ECNP's. petition to intervene of June 30, 1983, it can be inferred he-intended to designate the organization as his representative and that it satisfies the requirement. We are unwilling lto draw that. inference.from "

a document that'has been drawn.and submitted with such lack of care. The affidavit is unclear as to.its import, l stating that as a member of the ,

organization Dr. Freedman wants Dr.

Johnsrud to be his legal-representative.

It is devoid of any statement.that he wants the organization to represent him.

It is unwarranted.to infer'the foregoing in light of the deficiencies in'the-document.and where the opportunity was provided to revise the document and was:

ignored.

At the direction of the Boar'd,-NEAP will ~

provide an affidavit of.at least.one member who resides within the NRC's " geographical zone of interest" and which satisfies the standing requirements for organizational representation, however, NEAP points out here that such a document is not required in the form of an affidavit ano ,

NEAP's position.is well supported by case law as  !

delineated below.

An organization may establish standing to intervene through its own interest.or through the interest of its members. The orgnaization'must show injury either to its organizational interests or to the interests of members who have authorized it to-act for them. See Warth v. Seldin. 422 U.S.

490. 511 (1976): Sierra Club v. Morton. 405 U.S.

727-40 (1972): Consumers Power-Co. (Palisades Nuclear Plant). LBP-79-20. 10-NRC'108. 113 (1979).

If it is depending upon injury to the interests of its members to establish standing,-the l- organization must provide with its petition identification of at least one member who will be injured, a description of the nature of'that .

injury, and an authorization for the organizati'on to represent that individual in the' proceeding.

See Houston Lichtina and Power Co. (Allens Creek '

Nuclear Generatina Station. Unit 1). ALAB-535. 9 4

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NRC 377. 390-96 (1976): Duauesne' Licht Comoany (Beaver Valley Power Station Unit 2). 19 NRC 393 (1984) at 410-11.

Writing for the Court'in Warth v Seldin, Mr.

Justice Powell explained that:

Even in the absence of injury to itself, an association may have. standing solely as the representative of.its members...The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justifiable case had'the, members themselves brought suit...So_long as this can be established, and so long as the nature of the claim and of.the relief sought does not make the individual participation of each injured party indispensible to proper resolution of the cause, the association may: be an '

appropriate representative ofsits l members, entitled to invoke the court's L

jurisdiction. See 422 U.S. 490. 511 (1975).

An organization that. wishes to intervene as of right on behalf of its members must disclose the-name and address of at least one of its members whose interest will be affected'byLthe proceeding and must show that it is authorized to act by its members. See Duke Power ComDany (Oconee Nuclear Station and McGuire Nuclear Station). 9 NRC 90 (1979): Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station). 25 NRC 116 (1987) at 116-117: Consumers Power Comoany (Palisades Nuclear Plant). 10 NRC 108 (1979):

Houston Liahtnina and Power ComDany (South Texas Proiect. Units 1 and 2). 9 NRC 439 (1979).

Intervenor has demonstrated-the nature and extent of NEAP's y

property, financial, or other interest in the_ proceeding whereas these considerations and other interests are endangered by the consequences of granting the amendments sought by the Applicant.

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6 Intervenor has demonstrated the possible effect of any order which may be entered in the proceeding on-NEAP's interest whereas NEAP has alleged that the-health, safety, and.well-being of its. members =is endangered by-the consequences of granting the amendments sought-by the Applicant.

Intervenor disagrees with the-Applicant's and Staff's position that an affidavit from-a member is required in this $

matter. However, Intervenor will, at the Board's direction, provide an affidavit of at least one member with requiste' ,

standing within the NRC's " zone of interest".

Intervenors again point out here that historical NRC proceedings clearly evidence that the documentation which NEAP has already submitted to the Board from its members satisfies the standing. requirements in this proceeding. Therefore, no further showing need be provided and if required by the Board, would only serve to further elevate the requirements for all intervenors to be accepted into these NRC administative proceedings.

For all the foregoing reasons stated above, the petition ,

for intervention of NEAP, as a matter of right, should be granted by the Board in accordance with the law. Alternatively, if the Board should deny NEAP standing to intervene as a matter of right, then NEAP request that discretionary intervention be

, granted.

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NEAP should be granted discretionary intervention because l

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NEAP's participation would most likely produce "a valuable contribution" to the decision making process. Some of NEAP's  ;

members and others which NEAP may summons as witnesses, have expertise in nuclear power and can analyize the safety aspects of the technical specification revisions as they relate to Turkey Point.

NEAP should be granted discretionary intervention because NEAP's interest will not be reprecented by existing parties because no other parties have standing in this proceeding.

NEAP should be granted. discretionary intervention because the availability of other means whereby NEAP's interest will be protected does not exist.

Where petitioner lacks standing to intervene as of right, intervention may be. permitted as a matter of discretion. Sag Portland General Electric Comoany (Pebble Sprinas Nuclear Plant.

Units 1 and 2). CLI-76-27. 4 NRC 610. 614-17 (1976).

In Pebble Springs, CLI-76-27, supra, the Commission went on ,

to hold that, in circumastances where standing to intervene as a matter of right is lacking, participation in the proceeding may nonetheless be allowed as a matter of discretion. 4 NRC at 614-617.

In determining whether to permit intervention on that basis, the most important factor to be considered is the extent of the contribution which might be expected of the petitioners.

Id. at 612. 617: Virginia Electric and Power Comoany (North Anna i

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Power Station. Units 1 and 2). ALAB-363. 4 NRC 631 (1976):  ;

Public Service Company of Oklahoma (Black Fox Station. Units 1 and 2). ALAB-397. 5 NRC 1143. 1145 (1977): Tennessee Valley

-Authority (Watts Bar Nuclear Plant. Units 1 and 2). ALAB-413. 5 NRC 1418. 1422 (1977).

It is neither Congressional nor Commission' policy to exclude parties because the niceties >of pleading were imperfectly observed. Sounder practice is to decide issues on their merits, not to avoid them on technicalities. South Texas ALAB-549. suora. 9 NRC at 650.

Conclusion:

Intervenor has demonstrated and met all the requirements for standing in this proceeding both as an individual organization and as a representative of an organization's members. Intervenor has provided the Board with documents authorizing NEAP to represent the interest of-some of its members and those documents allege injury in fact. In addition, Intervenor, at the direction of the Board, will provide affidavits from at least one member to further satisfy-standing l

requirements if so requested by the Board. Therefore, Intervenor should be granted intervention in this proceeding as a matter of right or alternatively.Intervenor should be granted discretionary intervention.

t Early this week, Intervenors received a copy of the -

Applicant's Current Technical Specifications from the NRC. i Based on this new information, (information not previously

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available to Intervenor), Intervenor now requests leave of the Board to amend Intervenor's contentions. Intervenor requests leave of the Board to amend only those contentions currently active and is not requesting leave of the Board to reconsider contentions previously withdrawn from this proceeding.

Intervenor asserts here that "ggod cause" has been demonstrated to authorize the Board to grant Intervenor leave to amend the existing contentions in this proceeding and that such an order should be issued by the Board.

l Respectfully submitted, l

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Thomas J. Sapori 6, Jr.

• Executive Director, NEAP Nuclear Energy Accountability Project Post Office Box 129 Jupiter, Florida 33468-0129 (407) 743-0770.

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UNITED STATES OF AMERICA- UdC t NUCLEAR REGULATORY COMMISSION t ATOMIC SAFETY AND LICENSING BOARD 30 MH 23 P4 :08 1 In the Matter of ) Docket Nos. 50-250-OLA-5 FLORIDA POWER &' LIGHT

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SQ]ff@lQ(('

BRANCH t

COMPANY ) Technical Specifications Turkey Point Plant ) Replacement (Unit Nos. 3 and 4) )

) ASLBP No. 90-60?-01-OLA-5 CERTIFICATE OF SERVICE I I hereby certify that a copy.of the above entitled document 1 was served on the following by deposit in the United-States mail, first class, properly stamped and addressed, on the date shown below.

Honorable Peter B. Bloch, Chair Janice E. Moore, Esq.

Atomic Safety and Licensing Board Patricia A. Jehle, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 Nuclear Regulatory Comm.

Washington, D.C.20555  !

Honorable Dr. George C. Anderson- Atomic Safety / Licensing Atomic Safety and Licensing Board Appeal Board Panel 450 Vista Chino, Apt. 2015 _ Nuclear Regulatory Comm.

Palm Springs, CA 92262 Washington, D.C.-20555 Honorable Elizabeth B. Johnson Steven P. Frantz, Esq.

Oak Ridge National Laboratory Newman & Holtzinger, P.C.

P.O. Box 2008 1615 L Street, N.W.

Bethel Valley Road, Bldg. 3500 Suite 1000 Mail Stop 6010 Washington, D.C. 20036 Oak Ridge, TN 37831 Richard J. Goddard Office of the Secretary Regional Counsel U.S. Nuclear Regulatory Commission U.S.NRC Region II Washington, D.C. 20555 101 Marietta St.NW, #2900 Atlanta, Georgia 30323 Attn. Chief Docketing / Service Sect.

(Original plus two copies) Billie P. Garde, Esq. '

Attorney at Law 103 East College Ave.

Appleton, Wisconsin 54911

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Thosas J. &6po66to, Jr 6' O'

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Dated this 20th day of April, 1990 at Jupiter, Florida. Executive Directer, NEAP '

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