ML20043C381
| ML20043C381 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 05/24/1990 |
| From: | Johari Moore NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#290-10393 OLA-5, NUDOCS 9006050125 | |
| Download: ML20043C381 (11) | |
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May 24, 1990 00ggp0 UNITED STATES OF AV. ERICA NUCLEAR REGULATORY COMMISSION
'50 MY 25 P1 :42 BEFORE ATOMIC SAFETY AND LICENSING BOARD gm,3 7 gg,3 wt< i,zi.
i In the Matter of Docket No. 50-250-OLA-5 FLORIDA POWER AND LIGHT 50-251-OLA-5 COMPANY
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Technical Specifications (Turkey Point Plant, Units 3 and 4)
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Replacement
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NRC STAFF'S REPLY TO NEAP'S RESPONSE TO LICENSING BOARD'S MEMORANDUM AND ORDER OF APRIL 24, 1990 I, INTRODUCTION 1
On May 5,1990. Petitioner Nuclear Energy Accountability Project
' (NEAP) filed its response to the Licensing Board's Order issued in this proceeding on April 24, 1990.
" NEAP's Response to ASLB's Memorandum and Order" (May 5, 1990).
In its Order the Licensing Board provided an opportunity for the Applicant and the Staff to respond to NEAP's filing.
For the reasons set forth below, the Petition of the Nuclear Energy Accountability Project for leave to intervene in the above-captioned i
proceeding should be denied on the ground that NEAP has not established the requisite representational standing to intervene in this proceeding.
II. BACKGROUND On April 1, 1990. Thomas J. Saporito filed a notice of withdrawal l
from this proceeding in which he stated that he withdrew his petition to intervene as an individual in this proceeding, and stated that his personal standing could no longer be considered as the basis for 1
establishing the standing of NEAP,
" Notice of Withdrawal from 9006050125 900524 gDR ADOCK 050 0
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2-Proceeding," (April 1,1990). The Applicant and Staff filed responses to Mr. Saporito's notice of withdrawal.
- Applicant's Response to Notice of Withdrawal from Proceeding," (April 13, 1990); "NRC Staff Response to Thomas J. Saporito, Jr.'s Notice of Withdrawal," (April 23,1990)
[hereinafterStaffResponse.1 In its response the Staff stated that in light of Mr. $aporito's withdrawal from the proceeding, its position w!th regard to Petitioner NEAP's standing to intervene in this proceeding had changed.
Staff Response at 2.
The Staff had previously supported NEAP's standing based on the standiag of Mr. Saporito, who h the Executive Director of NEAP.
_See "NRC Staff Response to Petitioner's Amended Petition for Leave to Intervene," (Mar (.h 19,1990)at7-10;seealso
. Transcript of Prehearing Conference held in Miami, Florida on March 23, 1990, Tr. at 4-6.
The Staff pointed out that now that Mr. Saporito has withdrawn from the proceeding, NEAP has not put forth the name and address of at least one member of NEAP who has the requisite personal standing as required by the Comission's regulations and who has authorized NEAP to represent him or her.
Staff Response at 3.
In light of this development the Staff recommended the denial of NEAP's petition.
On April 24, 1990, the Licensing Board issued an Order in which it stated that NEAP did not have standing to intervene as an organization.
"MemorandumandOrder(MotiontoWithdraw),"(April 24,1990)[ hereinafter Order.) The Board ordered NEAP to provide certain information to the Board and parties in order for the Board to judge whether NEAP could l
establish the necessary representational standing. and whether, in fact.
NEAP still wished to participate in this proceeding and who would be their representative. M.
To these ends, the Licensing Board required NEAP to J
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f file a statement which (1) confirms that NEAP still desires to be represented in the proceeding, (2) gives the name of its authorized p
representative.(3)explainsthenatureandprivilegesofmembershipand i
how one is determined to be a member, and (4) states that each person l
relied upon for standing is a member of the organization, the date the person becane a member, and that the person has remained a n'in.ber. Orde*
i at B.
1heBoardalsorequiredastatementfromoneremberthat(1)the person desires to be represented by NEAP, (2) establishes that the person s
haspersonalstandingintheproceeding.(3)establishesthedatethe person became a member and whether that person is a member at this time.
and (4) sets forth that person's understanding of the privileges of their membership in NEAP and the nature of their participation in the organization's activities. Order at 8 9.
The Licensing Board ordered l
NEAP to make its filing before May 11, 1990. The Licensing Board granted the Applicant and the Staff an opportunity to address _ the response which NEAP might file.
On May 5, 1990, NEAP made a filing which purports to respond to all of the Licensino Board's inquiries.
" NEAP's Response to theASLB'sMemorandumandOroer,"(May5,1990)[hereinafterResponse.]
The Staff's response to NEAP's filing is set forth below.
III.
DISCUSSION A.
Standards for Representational Standing As the Licensing Board pointed out in its Order of April 24, 1990, Mr. Saporito's motion to withdraw from this proceeding raises issues concerning NEAP's standing which were not considered at the prehearing conference which was held on March 23, 1990, since those issues appeared t
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to be moot. These issues were whether NEAP had provided the name and address of a member who had the requisite personal standing and who authorized NEAP to represent that member.
In its Order the Board noted that it would apply contemporaneous judicial concepts of standing in ruling upon this matter. Order at 10.
The Comission has previously stated that such concepts of standing should be used by the Comission's adjudicatory boards.
Portland General Electric Co. (Pebble Springs NuclearPlant, Units 1and2),CLI-76-27,4NRC610(1976).
The Supreme Court has held that an organization may gain standing solely as a representative of its members if a member would otherwise have standing to pursue a claim on their own behalf, where the interests being protected are germane to the purpose cf the organization, and where the relief requested would not require the individual participation of a member.
Hunt v. Washington State Apple Advertising Comission, 432 U.S.
333,343(1977).
In Hunt, the Court had to decide whether the Conmission was the type of organization covered by the representational standing doctrine.
In order to decide this question, the Court considered the nature and purpose of the organization, and whether the organization had any members. The Court considered the question of whether the people represented by the Advertising Comission possessed the indicia of membership before granting that organization standing. Hunt, supra, 432 U.S. at 344. The Court determined that indicia of membership were present in that the Board of j
the Comission is elected by the growers, only people represented by the Comission serve on the Board, and those represented by the Comission finance its activities. Jd.
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5-s In Health Research Group v. Kennf y, 82 F.R.D. 21 (D.D.C. 1979), the d
District Court for the District of Columbia relied on the discussion of the importance of the indicia of membership in Hunt to determine that contributors cannot provide an organi:ation with the ability to establish representational standing. 82 F.P, D. at 26. The Court in Health Rese d j
J Gre y pointed out that something more than a perstn's cognizable injury mu,t he required for an organization to gain standing.
The Court r.tated a
d that this additional requirement must be found in the special relationship between an organization and its members. Ld. at 25. Where parties are nct actually members of an organization, there must be a substantial nexus between the organization and the parties it wishes to represent. M. The District Court pointed out that members normally exert some control over an organization which they generally helped to create. M.at26. As the Court noted, unless an organization truly represents an injured individual, the organization would be the same as an environmental organization with a generalized interest.
Id. at 27. Such a generalized interest is not adequate to confer standing on an organization.
See Sierra Club v. Morton, 405 U.S. 727, 739 (1972).
More recently a District Court in Michigan was faced with the question of whether a private school which wished to challenge a statute could be considered an organization with representational standing.
Clonlara, Inc. v. Runkel. 722 F. Supp. 1442 (E.D. Mich. 1989).
The Court used the indicia of membership as described in Hunt to determine whether
.the organization had members.
In this case the Court found that the parents who bought the school's educational program did not elect the Board of Directors, that board membership was not limited to members, and t
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that parents did not finance the organization's activities, but merely paid a fee for a service. M.-at1451. The Court found that the Plaintiff had hot shown that the parents had any input into the management of the corporation. M. Therefore, the Court upheld the magistrate's finding that the Plaintiff lacked the representations 1 standing to bring its suit. M. Another District Court used the s6me standards to determire that the Sierra Club had the requisite representational standing.
Sierra Club v. Aluminum Company of America. 585 F. Supp. 842 (M.D.N.f.1984).
The District Court found that the members of the Sierra Club have effective control over the organization because of th0ir payment of dues and voting rights. M.at851.
The issue of the indicia of membership which must be present in order for an organization to gain representational standing is not one which has been argued often before the Comission's adjudicatory bodies. The principal case discussing this issue is the Licensing Board's holding in Consolidated Edison Company of New York, (Indian Point, Unit No. 2) and i
Power Authority of the State of New York, (Indian Point, Unit No. 3),
1 l-LBP-82-25, 15 NRC 715 (1982).
In that case the Staff and the Licensees i
challenged the ability of the Union of Concerned Scientists (UCS) to gain representational standing from sponsors rather than members of the organization. The Licensing Board found that sponsors were the functional equivalent of members for purposes of standing where the organization has a clearly defined purpose. M.at736.
No other adjudicatory board has directly addressed this issue. Even when the Appeal Board has refused to attach any significance to the fact that UCS used donor members to support its standing, the Appeal Board found it unnecessary on the facts of that 2
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case, to resolve the issue of whether mere financial contributors could j
l provide an organization with representational standing. Although the Appeal Board denied UCS standing, it was not on the basis of the quality of the membership of the persons UCS alleged resided near the facility but the fact that UCS had failed to particularize how the interest of its members might be affected by the outcome of tne proceeding.
Virginia Electric and Power Company (herth Anna Nuclear Power Station, Units 1 and 2),ALAB-536,9NRC402,404andn.2(1979). The Indien Point Board also noted that a Licensing Board in the TMI restart proceeding also allowed UCS to gain standing based on alleged injury to UCS sponsors living within 20 miles of the facility.
Indian Point, supra, 15 NRC at 736. Since
,these Commission precedents do not seem consistent with judicial precedent in this area, the Staff submits that they should not be followed in this case.
B.
NEAP Has Failed to Allege Sufficient Facts to Cloak It With Represent 6tional Standing Based on the facts of the case before this Board and for the reasons set forth in Section A, the Licensing Board's rationale to allow UCS to participate as a party in Indian Point should not be followed.
Succinctly, the proper application of the law on the subject of standing of membership organizations to the facts in this case calls for the denial of NEAP's petition for leave to intervene.
In its response to the Licensing Board's Order, Petitioner NEAP sets forth what it characterizes as the relevant portions of its by-laws.
These provisions indicate that membership in NEAP entitles the members to receive information and a newsletter, but that such membership, according to the by-laws, does not give them any voting rights, unless otherwise
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authorized by the Board of Directors.
Response at 3.
The members may be required to pay dues, the amount of which may be set by the Board of Directors. id. There is no indication in the response as to how the I
Directors are chosen, and whether they must also be members of the organf7ation. There is no identification of what, if any, voting rights inve been "otherwise authorized by the board."
The Licensing Board ordered that the member chosen by NEAP as the basis-for its standing should, in his or her statement, set forth his or r
her understancing of the privileges of membership in NEAP and the nature of his or her participation in the organization. Order at 9-10.
The affidavit provided by one of NEAP's members does not indicate any I
understanding on the part of that member as to her privileges or the nature of her participation in NEAP.
The Staff concludes that the Affiant has the requisite personal standing, is a member of NEAP, and has authorized NEAP to represent her interestsinthisproceeding.II The interests she seeks to have protected are germane to the purpose of NEAP as described in NEAP's previous filings before this Board.
However, based on the information provided by NEAP, that organization does not appear to be a traditional membership organization of the type contemplated by the Courts to qualify for representational standing. NEAP's members do not r.ppear to have any input at all into the management of the organization's activities.
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In addition, from the documents submitted by NEAP it is unclear
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whether the Affiant wished to be a NEAP member or whether she sought membership for her organization, Quad City Citizens for Nuclear Arms Control.
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<T Petitioner NEAP, although given an express opportunity to do so by the Licensing Board, neglected to address = the applicability of the holding in Health Research Group v. Kennedy to NEAP.
For the reasons discussed above, the Affiant does not appear to be a rnember of a traditional mertbership organization of the type contemplated by the Supreme Court in H: int,and by the District Court in Health r,essarch Group v. Kennedy,
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Sierra Club v. A1uinjnum Co. of Awrica and Clon1 era. Inc. v. Runkel as bein0 qualified to gain representational standing. Therefore NEAP has not met its burden of establishing its standing to intervene in this proceeding, and its petition snould t.e denied.
IV. CONCLUSION For the reasons set forth above, NEAP's petition to intervene in this proceeding should be denied for lack of organizational standing.
Respectfully submitted, O
b h k, MbC Janice E. Moore Counsel for NRC Staff Dated at Rockville, Maryland this 24th day of May, 1990
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UNITED STATES OF AMERICA
% MAY 25 P1 :42 NUCLEAR REGULATORY COMMISSION ko'$[($%IAff-BEFORE ATOMIC RAFETY AND LICENSING BOARD y
hkANCH In the Matter of Docket No. 50-250-OLA-5 FLORIDA POWER AND LIGHT 50-251-OLA-5 COMPANY Technical Specifications
!Turky Peint Plant, Units 3 and 4)
Perlacement i
i CERTIFICATE OF SERVICE I hereby certify that copies of a NRC STAFF'S REPLY TO NEAP'S RESPONSE TO LICENSING BOARD'S MEMORANDUM AND ORDER OF APRIL C4, 1990" in the above-captioned proceeding have been served on the following by deJosit in the United States mail, first class, or as indicated by an asteris < through deposit in the Nuclear Regulatory Comission's internal mail system, this 24th day of May 1990.
Peter B. Bloch, Chairman
- Elizabeth B. Johnson Administrative Judge Administrative Judge Atomic Safety and Licensing Oak Ridge National Laboratory Board Panel P.O. Box 2008. Bethel Valley Road U.S. Nuclear Regulatory Comission Building 3500, Mail Stop 6010 Washington, D.C. 20555 Oak Ridge, Tennessee 37831 Dr. George C. Anderson Steven P. Frantz, Esq.
Administrative Judge Harold F. Reis. Esq.
7719 Ridge Drive, N.E.
Newman & Holtzinger Seattle, Washington 98115 1615 L. Street, N.W., Suite 2000 John T. Butler, Esq.
Steel Hector & Davis Atomic Safety and Licensing Board 4000 Southeast Financial Center Panel (1)
Miami, Florida 33131-2398 U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Thomas J. Saporito, Jr.
1202 Sioux Street Atomic Safety and Licensing Appeal Jupiter, Florida 33458 Panel (5)
U.S. Nuclear Regulatory Comission Nuclear Energy Accountability Washington, D.C.
20555 Project Post Office Box 129 Jupiter, Florida 33468-0129 l
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Stewart Ebneter*
Office of the Secretary (2)*
i Regional Administrator U.S. Nuclear Regulatory Comission USNRC, Region II Washington, D.C.
20555-101 Marietta St., N.W., Suite 2900 Attn: Docketing and Service Section Atlanta, Georgia 30303 Adjudicatory File (2)*
Atomic Safety and Licensing Board.
O.S. Nuclear Regulatory Comissiors Washington, D.C.
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