ML20052E238
| ML20052E238 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 05/04/1982 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP), NRC COMMISSION (OCM) |
| References | |
| ISSUANCES-SP, NUDOCS 8205100224 | |
| Download: ML20052E238 (31) | |
Text
._
UNITED STATES OF AMERICA NUCLEAR F:EGULATORY C0ft11SSION B Penr THE COW ISSTON and BEFORE THE ATOMIC SAFETY AND LICEi. SING APPEAL BOARD In the Matter of
)
)
CONSOLIDATED EDIS0N COMPANY
)
Docket Nos. 50-247-SP 0F NEW YORK (Indian Point, Unit 2)
)
50-286-SP
)
POWER AUTHORITY OF THE STATE OF
)
NEW YORK (Indian Point, Unit 3)
)
afAYg f
NQ 12 x
NRC STAFF'S BRIEF IN RESPONSE TO' POWER AUTHORITY'S APPEAL OF THE ATOMIC SAFETY AND LICENSING BOARD'S ORDER RULING ON PETITIONS TO INTERVENE Henry J. McGurren Counsel for NRC Staff May4,198%
f my 4. '9" g9
\\
,DEGIGNATED CRIGINAI)
T]
8205100224 820504
{DRADOCK05000 k
TABLE OF CONTENTS Page 1
I.
INTRODUCTION......................
3 II. STATEMENT OF THE CASE.................
6 III. ISSUES ON APPEAL....................
7 IV. ARGUMENT........................
A.
The Licensing Board Did not Err in Admitting UCS as an Intervenor...............
7 1.
UCS has not established standing as a matter of right...............
7 2.
UCS should have been granted Intervenor Status as a matter of the licensing 13 Board's discretion..............
B.
No Basis Exists in Commission Regulations or Commission Case Law Which Supports the Power Authority's Assertion that the bicensing Board Erred in Admitting UCS, NYPIRG, WESPAC, Parents and F0E as Intervenors Notwithstanding Allega-tions Regarding Their Conduct External to the Proceeding and Their Views In Opposition to the Use of Nuclear Power...............
16 C.
The Record Establishes that NYPIRG, WESPAC and F0E May Adequately Represent Their Members....
18 D.
The Authority Has Failed To Demonstrate That the Licensing Board Committed Error In Failing to Exercise Its Discretion to Make an Evidentiary Inquiry Into The Standing of the Intervenors...
22 IV. CONCLUSION.......................
23 l
TABLE OF AUTHORITIES Page CASES Hunt v. Washington State Apple Advertising Commission, 8,10,11,19,20 132 U.S. 333 (1977)......................
Precision Instrument Manufacturing Co. v. Automotive 16 Maintenance flachinery Co., 324 U.S. 806 (1945) 10,11 Sierra Club v. Morton, 405 U.S. 727 (1972) 10,20 Warth v. Seldin, 422 U.S. 490 (1975)
Associated General Contractors of North Dakota v. Otter 19,20 Tail Power Co., 611 F.2d 684, 691 (8th Cir. 1979).......
Health Research Group v. Kennedy, 82 F.R.D. 21 8,9,10,11,12 (D.D.C. 1979).........................
ADMINISTRATIVE DECISIONS Consolidated Edison Co. (Indian Point, Un64 2), Power Authority of the State of New York (Indian Point, Unit 3),
CLI-81-1, 13 NRC 1 (1981), as revised, CLI-81-23, 14 NRC 1,3,14,17 610(1981)..........................
Florida Power and Light Co. (St. Lucie Plant, Unit No. 2),
23 CLI-78-12, 7 NRC 939 (1978)..................
Philadelphia Electric Company, (Point Beach Atomic Power Station, Units 2 and 3), CLI-73-10, 6 AEC 173 18 (1973)............................
Portland General Electric Co. (Pebble Springs Nuclear 13 Plant, Units 1 and 2), CLI-76-77, 4 NRC 610 (1976)......
Allied-General Nuclear Services (Barnwell Fuel Receiving 9
and Storage Station), ALAB-328, 3 NRC 420 (1976)
Houston Lighting and Power Co (Allens Creek Nuclear 17 Generating Station, Unit 1), ALAB-535, 9 NRC 377 (1979)....
Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-549, 9 NRC 644 (1979)....'.......
9 i
- iii -
TABLE OF AUTHORITIES Pan ADMINISTRATIVE DECISI0t'e Viroinia Electric and Power Co. (North Anna Nuclear PowerStation, Units 1and2),ALAB-536,9NRC402(1979) 9 f
LBP-78-27, 8 NRC 275 (1978)..................
22,23 Consumers Power Co. (Midland Plant, Units 1 and 2),
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), Unpublished Memorandum and Order 9
dated September 21, 1979...................
REGULATIONS 4.5,6,14,17,18 10 C.F.R. % 2.714 18 10 C.F.R. 9 2.714(a)(2) 10 C.F.R. % 2.714(b).....................
18 10 C.F.R. 5 2.715(c).....................
4,6 l
l 4
e
,w-...
s.---- -, -.,
.-m.-
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION and BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
Docket Nos. 50-247-SP CONSOLIDATED EDISON COMPANY
)
50-286-SP 0F NEW YORK (Indian Point, Unit 2)
POWER AUTHORITY OF THE STATE OF NEW YORK (Indian Point, Unit 3)
NRC STAFF'S BRIEF IN RESPONSE TO POWER AUTHORITY'S APPEAL OF THE ATOMIC SAFETY AND LICENSING BOARD'S ORDER RULING ON PETITIONS TO INTERVENE I.
INTRODUCTION N
In a pleading dated April 19, 1982 entitled " Power Authority's Brief in Support of its Appeal of the Atomic Safety and Licensing Board's Order Granting. Intervention and Denying the Power Authority's Request for an Evidentiary Hearing" ("Brief on Appeal"), the Power Authority of the State of New York (" Power Authority") seeks to appeal the Licensing Board's " Memorandum and Order (Ruling on Petitions to Intervene and Agenda for Second Special Prehearing Conference)", dated April 2, 1982 (ASLBOrder).1/
The Staff is filing its Response to this Appeal with the Comission
-1/
as well as with the Atomic Safety and Licensing Appeal Board (Appeal Board). This simultaneous filing is being made because the Power Authority filed its brief and Notice of Appeal.with both the Comission and the Appeal Board.
It appears to th.e Staff, however, from the Comission's Order dated January 8,1981 that the appro-priate forum for this Appeal would be the Comission. Consolidated Edison Co. (Indian Point, Unit 2), and the Power Authority of the StateofNewYork(IndianPoint, Unit 3),CLI-81-1,13NRC1,6-8 (1981), as revised, CLI-81-23,14 NRC 610, 611 (1981) (Comission Order).
Specifically, the Power Authority requests the reversal of that portion of the ASLB Order granting intervenor status to (1) Union of Concerned Scientists (UCS); (2) New York Public Interest Research Group, Inc".
(NYPIRG); (3) Parents Concerned About Indian Point (Parents);
(4) Westchester Peoples' Action Coalition, Inc. (WESPAC); (5) Friends of the Earth (F0E); and (6) Rockland Citizens for Safe Energy (RCSE). As grounds for this Appeal, Power Authority argues that since USC failed to base its rep:esentational standing on the standing of a member or the
" functional equivalent" of a member, USC has failed to establish the requisite standing to intervene in this proceeding. Brief on Appeal at With respect to the other petitioners who are the subject of this 3-9.
appeal, the Power Authority argues that their intervention should be precluded due to 1) their general opposition to nuclear power and 2) s certain conduct which the Power Authority alleges took place outside of this proceeding. Id. at 10-18 The Power Authority also argues that the interests of the members of petitioning organizations were so diverse that the organizations could not adequately represent them. Id. at 18-26 For the reasons stated below the Staff concludes that the Licensing Board did err in granting UCS standing to interevene in this proceeding as a matter of right. However, the record strongly supports the grant of intervention as a matter of discretion to UCS.
The remainder of the Power Authority's arguments are without merit.
The Power Authority, for the most part, relies for these arguments on l
extra record statements and tenuous inferences that the Power Authority draws from such statements. To give such arguments any credence at all l
l
. would seriously impair the integrity of the Commission's hearing process.
The record supports the Licensing Board's ruling granting intervenor status in this proceeding to NYPIRG, Parents, WESPAC, F0E, and RCSE and it should be affirmed.
II. STATEMENT OF THE CASE By Orders dated May 30, 1980 and January 8,1981, the Commission directed that a special investigatory proceeding be conducted before an Atomic Safety and Licensing Board "...to take evidence and make recommended findings and conclusions on disputed issues material to the questioa whether the Indian Point Units 2 and 3 plants should be shut down or other action taken." Indian Point, CLI-81-1, supra at 5 and 6. On s
October 7,1981, a Notice was published in the Federal Register providing that requests to participate and petitions for leave to intervene in the above proceeding be filed by November 6, 1981. 46 Fed.
Reg. 49688. Nineteen petitions and requests were timely filed.
With regard to the petitions, eleven were from organizations or groups of organizations that petitioned for leave to intervene pursuant to10C.F.R.62.714.U Additionally, eight governmental entities
-2/
These petitioners included: West Branch Conservation Association (WBCA), Friends of the Earth (F0E), Rockland Citizens for Safe Energy (RCSE), Westchester People's Action Coalition (WESPAC), New York City Audubon Society (NYC Audubon), Greater New York Council on Energy (GNYCE), Parents Concerned About Indian Point (Parents), the County of Rockland (Rockland), the Union of Concerned Scientists joined with the New York Public Interest Research Group (UCS-NYPIRG), and the licensees Consolidated Edison Company of New York, Inc. (Con Edison) and the Power Authority of the State of New York (Authority).
_ requested the opportunity to participate pursuant to 10 C.F.R.
%2.715(c).1/ These petitions to intervene pursuant to 10 C.F.R. I 2.714 and requests to participate pursuant to 10 C.F.R $ 2.715(c) were responded to by the NRC Staff-I aswellastheLicensees.E/
4 In its response to the petitions and subsequent amendments permitted by the Board,5l the Power Authority opposed all requests for Port Authority These requests were made by(the following entities: Port Authority), the A
'-3/
of New York and New Jersey the State of New York (Attorney General), the New York Assembly and its Special Committee on Nuclear Power Safety (State Assembly), the Metropolitan Transit Authority (MTA), the New York State Energy Office (Energy Office), the Executive of the County of Westchester on behalf of the citizens of the County (County), members of the Council of the City of New York (NYC Council), and the Village of Buchanan (Village).
N The NRC Staff responded to these pleadings in a document entitled
-4/
" Response to the NRC Staff to Petitions for Leave to Intervene and Requests for Participation as Interested States Filed in Response to the NRC Federal Register Notice of October 7, 1981," dated l
November 24, 1981.
("StaffAnswer").
The Power Authority responded to these pleadings in a document
-5/
entitled " Power Authority's Answer to Petitioners For Leave to Intervene," dated November 24, 1981.
(" Power Authority Answer").
Consolidated Edison responded to these pleadings in a document entitled " Con Edison's Answer to Petitions for Leave to Intervene,"
I dated November 24, 1981.
Amendments were filed by UCS, NYPIRG, WESPAC, NYC Council, GNYCE,
-6/
the County, WBCA, F0E, State Assembly, NYC Audubon, Rockland, RCSE, A late petition for leave to intervene Village, and Parents.
pursuant to 10 C.F.R. $ 2.714 was filed by Honorable Richard L.
Brodsky on December 2, 1981.
O intervention pursuant to 10 C.F.R. 9 2.714, except that filed by the Licensee,ConsolidatedEdisonCo.E The bases for such opposition included, inter alia:
(1) that an organization could not base its standing to intervene upon the potential injury to persons other than its members absent a show-ing of control by such members over the organization _/ (UCS based its 8
standing to intervene on the interests of its sponsors, rather than the interests of members)U, (2) that petitioners who oppose the use of nuclear power should be precluded from participation in this proceed-ing, E (3) that the members of the petitioning organization have such diverse interests, so unrelated to the purposes of the organizations, thatsuchorganizationscannotrepresentthemembersinthisproceeding,$
7/
The Power Authority's response; to the amended petition were set forth in a document entitled " Power' Authority's Reply to Amended Petitions for Leave to Intervene, and Answer to petition for Leave to Intervene of Richard L. Brodsky," dated December 21, 1981 (" Power Authority Answer to Amendment").
8/
Power Authority Answer (November 24,1981) at 15-22; Power Authority Answer to Amendments (December 21, 1981) at 10-11.
-9/
See " Amendment to UCS' Petition for Leave to Intersene, and Response to NRC Staff, Consolidated Edison, and PASNY Challenges to UCS Standing to Intervene, dated December 10, 1981 an1 attached Affidavit of Elizabeth Czoniczer.
10/ Power Authority Answer (November 24, 1981) at 3-15; See also Power Authority Answer to Amendments (December 21,1981)at17,25.
~
-11/ Power Authority Answer (November 24, 1981) at 26-31; See also Power Authority Answer to Amendments (December 21,1981).
. and (4) that the petitioners have not met the requirements for discretionary intervention.El By Memorandum and Order dated April 2, 1982 the Licensing Boavd issued its ruling on the Petitions for Leave to Intervene (ASLB Order).
In this order, the Licensing Board rejected the arguments of the Power Authority and ruled that nine petitioners be admitted to intervene in thisproceedingpursuantto10C.F.R.62.714.El ASLB Order at 2.
This ruling as to intervenors UCS, NYPIRG, Parents, WESPAC, F0E, and RCSE is the subject of the instant appeal. The Licensing Board also ruled that nine representatives or agencies of interested states, counties, or municipalities be admitted to participate pursuant to 10 C.F.R. 62.715(c).El H.at2and3.
N III.
ISSUES ON APPEAL A.
Whether the Licensing Board erred in admitting UCS as an Inter-venor in this proceeding.
B. Whether the Licensing Board erred in admitting UCS, NYPIRG, WESPAC, Parents and F0E as Intervenors notwithstanding the Power
-12/ Power Authority Answer (November 24, 1981) at 33-35; See also Power Authority Answer to Amendments (December 21,1981).
-13/ The Licensing Board admitted Honorable Richard L. Brodsky, F0E, GNYCE, Audubon, Parents, RCSE, WBCA, WESPAC and UCS with NYPIRG as a Joint Intervenor.
-14/ The Attorney General, Energy Office, County, MTA, NYC Council, Port Authority, Rockland, State Assembly and Village.
Authority's allegations regarding their conduct external to the proceeding and their opposition to the use of nuclear power.
C.
Whether the Licensing Board erred in granting intervenor status to NYPIRG, WESPAC and F0E in light of their organizational purposes and member interests.
D.
Whether the Licensing Board erred in granting intervention without exercising its discretion to make an evidentiary inquiry into the Power Authority's assertions regarding standing.
IV. ARGUMENT A.
The Licensing Board Did not Err In Admitting UCS As An Intarvenor 1.
USC has not established standing as a matter of right.
A joint petition to intervene in this proceeding was timely filed by UCS and NYPIRG and subsequently supplemented by additional filings.b In those documents UCS was identified as a nonprofit coalition of scientists, engineers, and other professionals, supported by 95,000 UCS sponsors nationwide.
In support of its claim that it has standing to intervene in its representational capacity, UCS submitted an unsigned affidavit of one of its sponsors who resides in a community near the Indian Point Station authorizing UCS to represent her interests in this proceeding. The Licensing Board admitted UCS as an intervenor in this
-15/ " Joint Petition for Leave to Intervene by the Union of Concerned Scientists and New York Public Interst Research Group," dated November 6, 1981; "New York Public Interest Research Group, Inc.,
Petition for Leave to Amend Portions of Joint Petition to Intervene," dated December 8, 1981, and Amendment to UCS' Petition for Leave to Intervene, and Response to NRC Staff, Consolidated Edison, and PANSY Challenges to UCS Standing to. Intervene," dated December 10, 1981.
_ ASLB Order at 35.
proceeding based on its representation of a sponsor.
The Power Authority has appealed this determination of the Licensing Board. Brief on Appeal at 3-9.
The thrust of the Power Authority's argument is that the sponsors of UCS are not the " functional equivalent" of members and do not possess the requisite " indicia of membership" (or control over UCS). Specifically the Power Authority asserts that pursuant to the holdings of Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (197/), and Health Research Group v. Kennedy, 82 F.R.D. 21 (D.D.C.1979), it was error to find that "where an individual UCS sponsor as standing, this provides sufficient nexus between the organization and this proceeding so as to permit representational standing by UCS."
ASLB Order at 34. The Staff agrees that UCS has not established standing as of right.b 16/ The Staff argued before the Licensing Board that the authorization of a sponsor of UCS to represent her interests did not establish standing as of right.
In taking this position, the Staff relied upon the decision in Health Research Group, supra.
In the absence of standing as of right for UCS, the Staff recommended that UCS be granted descretionary intervention because of the important role played by UCS in the initiation of this proceeding and the likelihood that UCS can make a meaningful contribution due to its asserted expertise. As discussed below, this remains the Staff's position. " Response of the NRC Staff to the Amendments to Petitions of UCS-NYPIRG, GNYCE, PADENTS, and WESPAC for Leave to Intervene and Amendments to Requests of the County and NYC COUNCIL for Participation as Interest States," dated December 21,1981 at 7-11.
l l
i
. The question raised by this appeal is one which has not been directly addressed by either the Appeal Board or the Comission.E While it is well established that an organization can gain representational standing based on injury to its members, (See, e.g.,
Houston Lighting and Power Co.(South Texas Project, Units 1 and 2, ALAB-549, 9 NRC 644, 646 and 647 (1979)), as discussed below, the court cases appear to hold that representational standing cannot be based on the personal interests of a financial contributor to or sponsor of an organization, absent some showing of control of the organization by the contributors or sponsors.
The question of standing of an organization based on an injury to a In contributor or sponsor was raised in Health Research Group, supra.
that case, two public interest non-membership organizations, Public Citizen, Inc. and Health Reseach Group sought to establish their standing See Virginia Electric and Power Co. (North Anna Nuclear Power
-17/
Station, Units 1 and 2), ALAB-536, 9 NRC 402, 404 n.2 (1979), where the Appeal Board having found that UCS had not established standing to intervene (citing Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420 (1976)) stated that "there is no necessity here to explore the question whether representational standing can be based on the personal interests of a mere financial contributor to the organization." The Board's decision to admit UCS as a matter of right was, in part, based on a decision in the Three Mile Island, Unit i restart proceeding in which UCS was adiETtted based on sponsors and contributors to UCS who lived within 20 miles of the facility. ASLB Order at 34. The precedential value of this case is limited, however, due to the fact that, "[n]either the staff nor the licensee oppose [d] this ruling."
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.
1), Memorandum and Order Ruling on Petitions and Setting Special Prehearing Conference at 14, unpublished order dated Septeniber 21, 1979.
. solely in a representative capacity. Conceding that they have no members, the organizations alleged injury only to their contributors and supportors and thereby raised the question whether they may have s'tanding solely as the representatives of these contributors and supporters. In deciding this question, the Court reviewed the origin and purposes of the representational standing doctrine. The Court noted that the associational standing doctrine (whether or not an association suffers injury itself, it may have standing solely as the representative of its members) summarized in Warth v. Seldin, 422 U.S. 490, 511, represented a very limited exception to the fundamental Article III requirement that the plaintiff before the Court "be himself among the injured."
Health Research Group, supra at 25 (citing Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972)). The Court further noted that "until 1977, the N
Supreme Court's associational standing cases, like Warth had without exception simply presupposed an organizational plaintiff with ' members.'"
Health Research Group, supra, at 25 and cases cited there.
In 1977, the Supreme Court, in Hunt, supra, was for the first time confronted with an organization's claim to associational standing on behalf of third parties who were, at least formally, not its members.
In upholding the standing l
of the organization, the Supreme Court elevated the importance of membership in associational standing by basing its holding on a finding that parties whom the organization purported to represent wera I
functionally equivalent to members, and that the organization was in i
substance indistinguishable from a voluntary membership trade association. Hunt, supra, 432 U.S. at 344-45. The Court concluded that:
So long as the courts insist on some sort of substantial' nexus between the injured party and the organizational plaintiff--a nexus normally to be provided by actual membership or its functional equivalent measured in terms of control--it can reasonably be presumed that, in effect, it is the injured party who is himself seeking review. Absent this element of control, there is simply no assurance that the party seeking judicial review represents the injured party, and not merely a well-informed point of view.
Ultimately, unless an organization truly represents an injured part its position will not be meaningfully different from that of the environmental organization in Sierra Club v. Morton which sought standing as a " representative of the public." 405 U.S. 727, 736, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). And as the Court there held: "A mere ' interest in a problem,' no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to [ confer standing]."
Id. at 739, 92 S.Ct. at 1368.
Health Research Group, supra, at 26-27.
It is this " substantial nexus between,the injured party and the organization" which the Staff believes is lacking in UCS petition for UCS does not assert that its sponsors select or in leave to intervene.
any way determine which scientists, engineers, and other professionals will make up the coalition which constitutes UCS or in any other way control the organization. UCS does note that it is directly supported by
(
its sponsors.E However, as the Court stated in Health Reseach Group, f
supra at 27:
[T]here is a material difference of both degree and substance l
between the control exercised by masses of contributors tending
(
to give more or less money to an organization depending on its
" Amendment to UCS' Petition for Leave to Intervene, and Response to
-18/
NRC Staff, Consolidated Edison, and PASNY Challenges to UCS Standing to Intervene," dated December 10, 1981, at 9.
l responsiveness to their interest, or through the expression of opinion in the matters of supporters, on the one hand, and the control exerciseo by members of an organization as they regularly elect their governing body, on the other.,
In sum, the Staff does not agree with the Board's ruling that it is enough for representational standing that an organization have a "well defined purpose" and sponsors who support the organization's objectives.
ASLB Order at 34. Lacking here is the necessary showing that the sponsors of UCS have the requisite measure of power or control of UCS to supporttherepresentationalstandingsoughtbyUCS.E
-19/ The Staff does not agree with the Power Authority that RCSE has aho failed to establish that it has standing to represent its constituents. Brief on Appeal at 9.
Unlike UCS, RCSE bases its standing on its members. As noted by the Power Authority, RCSE filed affidavits of two of its members. On the basis of these affidavits (each of which asserts residence within 10 miles of the facility, membership in RCSE and authorizatior, of RCSE that it had established standing to intervene in this proceeding).
See " Response of NRC Staff to Petitions for Leave to Intervene and Requests for Participation as Interested States Filed in Response to the "C
Federal Register Notice of October 7,1981," dated November 24, 1981 and "NRC Staff Response to the Amendment to Petition for Leave to Intervene of Rockland Citizens for Safe Energy," dated December 28, 1981. The Power Authority relies on the Hunt decision for its the argument that RCSE should not be admitted but fails to recogni importance of the fact that RCSE is basing its standing on As the District representation of members rather than sponsors.
Court in Health Research Group, supra at 26 noted:
Hunt strongly suggest that some very substantial nexus between the organization and the parties it purports to represent will be required where these parties are not actually members.
(Emphasis ad3ed)
. 2.
UCS should have been granted Intervenor Status as a matter of the Licensing Board's discretion.
The Licensing Board stated that had it not granted UCS intervenor status as a matter of right, it would have granted UCS intervention status as a matter of its discretion. ASLB Order at 35, n.10.
The Staff believes that the facts and circumstances of this special proceeding support such an exercise of discretion.
Even though a petitioner may lack standing to intervene as of right under judicial standing concepts, the Connission has indicated that such petitioner may nevertheless be admitted to the proceeding in the Licensing Board's discretion based on consideration of several factors. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2),
N CLI-76-27, 4 NRC 610, 616 (1976). The factors set forth by the Commission include:
1.
The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
2.
The nature and extent of the petitioner's property, financial, or other interest in the proceeding.
3.
The possible effect of any order which may be entered in the proceeding on the petitioner's interest.
4.
The availability of other means whereby petitioner's interest will be protected.
S.
The extent to which the petitioner's interes.t will be repre-l sented by existing parties.
6.
The extent to which petitioner's participation will inappro-i priately broaden or delay the proceeding.
i It is clear from this Commission decision that the granting of such discretionary intervention is appropriate in a situation such as here where a petitioner who has failed to satisfy the judicial standing' criteria still may be able to make a contribution to the decision making process. M.at617. This is the first listed factor and in the Staff's opinion the controlling factor here. The unique circumstance of this case is that this very proceeding was the result of issues raised by UCS regarding the Indian Point nuclear facilities.
Indian Point, CLI-81-1, supra _, 13 NRC at 2.
Further, the Commission has stated that UCS has alleged that there are specific safety defects in the Indian Point units which raise questions as to whether the units comply with NRC regulations, M. at 3, and that these issues should be matters for consideration by this Board when set forth in a valid contention pursuant w
to 10 C.F.R. 6 2.714. H.at5and6,n.4.El Finally, the Commission noted with regard to the issues raised by UCS that "[i]f the Board at any time during the proceeding believes that hay of these issues are serious enough to warrant immediate action, it should make an appropriate recom-mendation to the Commission." M. at 3.
Furthermore, based on the inter-vention petitions, UCS along with its joint intervenor NYPIRG was designated
" lead intervenor" on 10 of the 21 contentions identified by the Board for litigation in this proceeding. b In addition, UCS and NYPIRG were identified as the contributing intervenor on two of the remaining eleven 20/ UCS did not raise in any of its contentions such specific safety
~
defects.
Memorandum and Order (Formulating) Contentions, Assigningat 3-20. (A
-21/
Intervenors, and Setting Schedule (hereinafter ASLB Contention Order). UCS/NYPIRG was identified as lead intervenor on contentions 1.1, 2.1, 3.1, 3.2, 3.3, 3.6, 4.1, 4.2, 4.5, and 4.6.
t contentions (contentions 6.3 and 4.4).E ASLB Contention Order at 21.
In light of this background showing the important role played by UCS in the initiation of this proceeding and the likelihood that UCS can Ynake a meaningful contribution due to its asserted expertise S he Staff 2
t believes that the Board had adequate basis to exercise its discretion to allow UCS to intervene in this proceeding.
The only factor which might weigh against allowing discretionary intervention is the fifth factor relating to the extent to which UCS' interest will be represented by existing parties. As noted above, NYPIRG and UCS filed a joint petition and, therefore, it could be argued that all the matters UCS wishes to raise could be raised by NYPIRG.
In that circumstance, the possibility exists that UCS' scientific resources could be made available to NYPIRG.
For these r,easons, this factor could weigh against the exercise of the Board's discretion to admit UCS as a party.
However, in light of the unique circumstances of this case and 22_/ The Board defined the role of lead and contributing intervenors:
The lead and contributing intervenors assigned to each contention shall be responsible for preparing and presenting the intervenors' case on that contention. Generally the lead intervenor shall present evidence and conduct cross-examination, but the lead intervenor may, at its option, designate a contributing intervenor to act in its stead with respect to the sub-issue assigned to the contributing intervenor. ASLB Contention Order at 23.
UCS "is an independent, non-profit group of scientists, engineers 23/
and other professionals who have spent a decade conducting research into nuclear power safety questions" ["The Power Controversy," UCS, at 1, attached to the UCS " Amendment to UCS' Petition for Leave to Intervene, and Response to NRC Staff, Consolidated Edison, and PASNY 10,1981.]
Challenge to UCS Standing to Intervene", dated December involvement of UCS as a lead intervenor, the Staff believes that a balancing of all factors clearly favors allowing UCS to participate jointly with NYPIRG in this proceeding as a matter of discretion.
No Basis Exists in Commission Regulations or Coninission Case Law 8.
Which Supports the Power Authority's Assertion that the Licensing Board Erred in Admitting UCS, NYPIRG, WESPAC, Parents and F0E as Intervenors Notwithstanding Allegations Regarding Their Conduct External to the Proceeding and Their Views in Opposition to the Use of Nuclear Power The Power Authority argues that UCS, NYPIRG, WESPAC, and F0E should be precluded from participation in this proceeding due to statements (opposing the use of nuclear power) made in the past by their representatives. Brief on Appeal at 10-18. Further, The Power Authority argues that UCS, NYPIRG and Parents should not be allowed to participate in this proceeding because of their conduct outside of the proceeding. E Brief on Appeal at 23.
The Power Authority relies for these arguments on extra record statements and tenuous inferences that the Power Authority draws from such statements.
The Power Authority asserts that UCS, NYPIRG, and Parents "have 24/
conducted a campaign to induce, instill, or exacerbate a phobia of nuclear power in the residents living near the plants." Brief on The Power Authority asserts that "[e]quity compels Appeal at 23.
parties before the Licensing Board to act ' fairly and without fraud or deceit as to the controversy in issue,'" citing Precision Instru-ment Manufacturing Co. v. Automotive Maintenance Machinery Co.,
324 U.S. 806, 814-15 (1945).
~
- The Licensing Board rejected the Power Authority's first argument citing Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1),ALAB-535,9NRC377,396-397(1979)El but did not address the latter argument. There is no merit to either argument.
The Power Authority has not identified and the Staff can find no language in the Comission regulation governing intervention,10 C.F.R. 6 2.714, the case law interpreting this regulation or the Comission's Memorandum and Order establishing this proceeding Indian Point, supra, that precludes intervention due to expressed opposition to nuclear power or petitioner conduct outside of the realm of the proceeding. The Staff submits that there is none.
25/ The Board cited this case for the proposition that opposition to nuclear power is not a basis for denying a petition for leave to
~
intervene. ASLB Order at 28, n.7.
The Staff agrees with the Power Authority that the Appeal Board in Allens Creek, ALAB-535, was not addressing the issue of whether a petitioner's
- supra, opposition to nuclear power should preclude its intervention but rather the requirement that organizations submit authorizations from the persons they purport to represent. See Brief on Appeal at 12 n.1.
The Appeal Board stated:
This does not mean that, in the case of all organizations, there need be supplied a specific representational authorization of a member with personal standing. To the contrary, in some instances the authorization might be presumed. For example, such a presumption could well be appropriate where it appeared that the sole or primary purpose of the petitioner organization was to oppose nuclear power in general or the facility at bar in particular.
In such a situation, it might be reasonably inferred that, by joining the organization, the members were implicitly authorizing it to represent any personal interests which might be affected by the proceeding.
[footnotedeleted]
Allens Creek, ALAB-535, supra at 396. However, the Staff believes that the Appeal Board's example does lend support to the proposition the Licensing Board cited Allens Creek for, i.e.,
that opposition to nuclear energy is not a basis for denying intervention.
In general, to satisfy the intervention requirements of 10 C.F.R. 5 2.714 the petitioners need only establish a " personal interest"; show "how that interest may be adversely affected"; set forth "a specific contention as to which petitioners desire to participate in the hearing" and " basis for this contention." Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-73-10, 6 AEC 173 (1973).E/ There is no requirement in 10 C.F.R. 5 2.714, the case law interpreting this section, or the Comission's Order that petitioners must have prescribed opinions concerning the use of nuclear energy to produce electrical power or that their conduct must meet prescribed standards out-side of the proceeding.
C.
The Record Establishes that NYPIRG,MESPAC and F0E Adequately Represent Their Members The Power Authority argues that NYPIRG, WESPAC and F0E are not adequate representatives of their members due to the fact that (1) the interests they seek to protect are not germane to the organization's purpose and (2) that the members' interests are so diverse that the organization cannot represent its members. Brief on Appeal at 18-23.
The Power Authority basicly relies on two cases to support its argument:
26/ The initial petition for leave to intervene need not set forth the petitioner's contentions. Such contentions are not required to be filed until shortly before the first prehearing conference.
10 C.F.R. 5 2.714(b). However, the initial petition must set forth "the specific aspect or aspects of the subject. matter of the pro-ceeding as to which petitioner wishes to intervene."
10 C.F.R. 5 2.714(a)(2).
. the Supreme Court decision in Hunt, supra, 432 U.S. at 343 and Associated General Contractors of North Dakota v. Otter Tail Power Co., 611 F.2d 684, 961 (8th Cir. 1979). These cases do not support the Power Authority's Moreover, the record in this proceeding establishes that the arguments.
member interests which the organizations seek to protect are germane to the organizations' purposes and that the members' interests are not so diverse as to preclude the organizations from representing such interests.
In the Associated General Contractor's decision, which was cited for the proposition that where members' interests are diverse an organization may not be able to represent their interests, the Court noted that the claims asserted " require the participation of the individual members of the association."
In essence, the Court there found representation by a general contractor's trade association (in an antitrust suit involving
's the legality of a bargaining agreement) 11 adequate because of " actual and The association's potential conflicts" between individual members.
membership consisted of 138 general contractors, 72 of which were parties to the collective bargaining agreement and 66 of which did not recognize or bargain with any union. These interests were so diverse that the Court noted, "[s]ome members are not qualified and others are not willing to work on the project; some stand to benefit from working on the project under the Agreement and still others will be hurt by not being able to do so."
Associated General Contractors, supra at 691.
It is in this context that the Court in Associated General Contractors decided that the interests of the members of the trade association were so diverse that participation by each individual member of the association was regt: ired.
This is not the situation here. Rather, the representation sought here is like that found proper by the Supreme Court in the Hunt decision.
There the Court said, citing Warth v. Seldin:
[W]hether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought.
If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.
Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind. 422 U.S., at 515, 45 L Ed 2d 343, 95 S Ct 2197.
Hunt, supra, 432 U.S. at 343.
Thus, applying this test to the instant proceeding where NYPIRG, w
WESPAC and F0E are seeking prospective relief that will inure to the benefit of its members (assurance of members' health and safety)2_7/
representational standing is appropriate. Moreover, this is entirely different from the situation in the Associated General Contractors suit where some of the members, due to " actual and potential conflicts", may not benefit, from such representation.
Further, the record supports a finding that the members' interests that NYPIRG, WESPAC, and F0E seek to protect (their health and safety) l See " Joint Petition for Leave to Intervene by Union-of Concerned 27/
TcTentists and the New York Public Interest Research Group," dated November 6,1981 (stating members concerns about. their health and see WESPAC's " Petition for Lear to Intervene," dated safety at 2); F (stating members' concerns about their health and November 5, 19 safety at 1 and 2); and see F0E's " Petition for Leave to Intervene,"
dated November 4,1981 (stating members' concerns about safety at2).
- are germane to the organization's purpose. The health and safety concerns of the members of WESPAC are germane to its stated concern about "the quality of life..., the environment... and human survivhl."El The health and safety concerns of members of NYPIRG are germane to its stated concern about " energy" and " problems relating to emergency plan-ningfortheregionsurroundingtheIndianPointreacters."El Finally, health and safety concerns of members of F0E are germane to its stated concern about "public education," " monitoring of government administra-tive actions and implementation" and past involvement in nuclear safety matters including "the Vallecitos reactor at Livemore, California; the proposed Exxon reprocessing plant at Oak Ridge, Tennessee; Rancho Seco and Diablo Canyon plants in California; the Shoreham, Long Island reactor at Wading River, New York."El
\\
In sum both of the Power Authority arguments lack any support. The record in this case c1carly establishes that the member interests which NYPIRG, WESPAC and F0E seek to protect are germane to each organization's purpose and that the members' interests are not so diverse as to preclude the organization from representing their respective members' interests.
-28/ WESPAC's " Petition for leave to Intervene," dated November 5,1981 at 2.
-29/ " Joint Petition for Leave to Intervene by the Union of Concerned Scientists and the New York Public Interest Research Group" dated November 6, 1981, at 2.
Further, the Power Authority notes that NYPIRG's Certificate of Incorporation reveals its concern about environmental preservation, consumer protection,. product safety, and corporate responsibility. Brief on Appeal at 21.
30/ F0E's " Petition For Leave to Intervene," dated November 4, 1981 at 1.
D.
The Authority Has Failed To Demonstrate That the Licensing Board Committed Error In Failing to Exercise Its Discretion to Make an Evidentiary Inquiry Into The Standing of the Intervenors The Power Authority appears to be arguing that the Board cocinitted error in not granting the Power Authority's request for "an evidentiary hearing pursuant to In re Consumers Power Co. (Midland Plant, Units 1 and 2), 8 N.R.C. 275, 277 n.1 (1978), on both the questions of membership and membership policies and practices of those organizations whose inter-vention the Authority opposes in Section II, and on the contentions asserted in Section VIII concerning the scaremongering conduct of UCS, NYPIRG and others." Brief on Appeal at 26 and 27. The Staff sees no error in the Board's refusal to grant the requested hearing.
The decision relied upon by the Power Authority, Midland, stands for the proposition that "[s]tanding to intervene, unlike the factual merits N
of contentions, may appropriately be the subject of an evidentiary inquiry before intervention is granted." Midland, supra at 277 n.1 (emphasis added).
This language makes clear that even thou5h the Licensing Board has the power to make an evidentiary inquiry about a matter concerning standing to intervene (the Applicant in the Midland case questioned the petitioner's actual residence), it is not required to do so every time a request for such inquiry is made.
It is a matter within the Board's discretion.
_ Moreover, it is clear from the Midland decision as well as the Comission decision cited by the Board in that caseE that more than a request for such inquiry is needed.
In essence, there is a duty'on the party questioning a petitioner's standing to demonstrate how such standing is deficient. This has not been done here. The Power Authority has only made broad assertions about " membership policies and practices" and "scaremongering conduct of UCS, NYPIRG and others." Moreover, it appears that the thrust of the Power Authority's request for a hearing is directed not to questions concerning the standing of the intervenors, but rather to their motivation for their involvement. As discussed above, this matter is not properly considered in determining whether a person should be permitted to intervene.
In sum, the Power Authority has failed to point to anything in the N
record which demonstrates that the Licensing Board erred in failing to exercise its discretion to make an evidentiary inquiry into matters concerning the standing of the Intervenors.
V.
CONCLUSION For the above stated reasons, UCS should be admitted as an intervenor in this proceeding as a matter of the Board's discretion and i
notasImatterofright. Further, the record supports the Licensing Florida Power and Light Co. (St. Lucie Plant, Unit No. 2), CLI-78-12,
-31/
7 NRC 939, 948-949 (1978). The Commission noted regarding a peti-tioner's affidavit showing of good cause for late intervention that it was incumbent on the Applicant to counter these. affidavits "and show -- if it could -- that good cause was lacking."
e li s
Board ruling granting intervenor status to NYPIRG, PARENTS, WESPAC, F0E, and RCSE, and its decision in this regard should be affirmed.
Respectfully submitted, i
Henry
. McGurren Coun el for NRC Staff Dated at Bethesda, Maryland this 4th day of May, 1982 s
l 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION and BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of Docket Nos. 50-247-SP CONSOLIDATED EDISON COMPANY 50-286-SP 0F NEW YORK (Indian Point, Unit 2)
)
POWER AUTHORITY OF THE STATE OF
)
NEW YORK (Indian Point, Unit 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S BRIEF IN RESPONSE TO POWER AUTHORITY'S APPEAL OF THE ATOMIC SAFETY AND LICENSING BOARD'S ORDER RULING ON PETIT INTERVENE" 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, through deposit in the Nuclear Regulatory Comission's internal mail system, this 4th day of May, 1982:
ss Louis J. Carter, Esq., Chairman Paul F. Colarulli, Esq.
Administrative Judge Joseph J. Levin, Jr., Esq.
Atomic Safety and Licensing Board Pamela S. Horowitz, Esq.
7300 City Line Avenue Charles Morgan, Jr., Esq.
Philadelphia, PA 19151-2291 Morgan Associates, Chartered 1899 L Street, N.W.
Dr. Oscar H. Paris Washington, D.C.
20036 Administrative Judge
[
Atomic Safety and Licensing Board Charles M. Pratt, Esq.
U.S. Nuclear Regulatory Commission Thomas R. Frey, Esq.
I Power Authority of the State Washington, D.C.
20555
10019 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Ellyn R. Weiss, Esq.
William S. Jordan, III, Esq.
Washington, D.C.
20555
- Harmon & Weiss Brent L. Brandenburg, Esq.
1725 I Street, N.W., Suite 506 Assistant General Counsel Washington, D.C.
20006 Consolidated Edison Co. of Joan Holt, Project Director New York, Inc.
Indian Point Project 4 Irving Place New York, N.Y.
10003 New York Public Interest Research Group l
S Beekman Street l
Mayor George V. Begany l
Village of Buchanan New York, N.Y.
10038 l
236 Tate Avenue Buchanan, N.Y.
10511
_7-John Gilroy, Westchester Coordinator Stanley B. Klimberg General Counsel Indian Point Project New York State Energy Office New York Public Interest 2 Rockefeller State Plaza Research Group Albany, N.Y.
12223 240 Central Avenue White Plains, N.Y.
10606 Marc L. Parris, Esq.
Jeffrey M. Blum, Esq.
Eric Thorsen, Esq.
New York University Law School County Attorney, County of Rockland 423 Vanderbilt Hall 11 New Hempstead Road 40 Washington Square South New City, N.Y.
10956 New York, N.Y.
10012 Geoffrey Cobb Ryan Conservation Committee Charles J. Maikish, Esq.
Chairman, Director Litigation Division New York City Audubon Society The Port Authority of 71 West 23rd Street, Suite 1828 New York and New Jersey New York, N.Y.
10010 One World Trade Center New York, N.Y.
10048 Greater New York Council on Energy Ezra 1. Bialik, Esq.
c/o Dean R. Corren, Director Steve Leipsiz, Esq.
New York University Environmental Protection Bureau 26 Stuyvesant Street New York State Attorney New York, N.Y.
10003 General's Office Two World Trade Center y-Honorable Richard L. Brodsky New York, N.Y.
10047 Member of the County Legislature Westchester County Alfred B. Del Bello Westchester County Executive County Office Building White Plains, N.Y.
10601 Westchester County 148 Martine Avenue Pat Posner, Spokesperson White Plains, NY 10601 Parents Concerned About Indian Point Andrew S. Roffe, Esq.
P.O. Box 125 New York State Assembly Croton-on-Hudson, N.Y.
10520 Albany, N.Y.
12248 l
Charles A. Scheiner, Renee Schwartz, Esq.
Co-Chairperson Botein, Hays, Sklar & Herzberg Westchester People's Action Attorneys for Metropolitan Coalition, Inc.
Transportation Authority P.O. Box 488 200 Park Avenue White Plains, N.Y.
10602 New York, N.Y.
10166 l
Lorna Salzman Honorable Ruth Messinger Mid-Atlantic Representative Member of the Council of the Friends.of-the Earth, Inc.
~
City of New York 208 West 13th Street District #4
.lew York, N.Y.
10011 City Hall New York, N.Y.
10007 e
e
~_.
- _ - _ _ _ Ms. Amanda Potterfield, Esq.
Alan Latman, Esq.
P.O. Box 384 44 Sunset Drive Croton-on-Hudson, N.Y.
10520 Village Station New York, NY 10014 Zipporah S. Fleisher West Branch Conservation Renee Schwartz, Esq.
Association Paul Chessin, Esq.
443 Buena Vista Road Laurens R. Schwartz, Esq.
New Ci ty, N.Y.
10956 Margaret Oppel, Esq.
Botein, Hays, Sklar & Hertzberg Judith Kessler, Coordinator 200 Park Avenue Rockland Citizens for Safe Energy New York, NY 10166 300 New Hempstead Road New City, N.Y.
10956 Alan S. Rosenthal, Esq., Chairman Atomic Safety and Licensing David H. Pikus, Esq.
Appeal Board Panel Richard F. Czaja, Esq.
U.S. Nuclear Regulatory Commission 330 Madison Avenue Washington, DC 20555
- New York, N.Y.
10017 Mr. Samuel J. Chilk Atomic Safety and Licensing Board Secretary of the Commission U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555
- Washington, D.C.
20555
- Atomic Safety and Licensing Appeal Leonard Bickwit, Esq.
Board w
General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555
- Washington, D.C.
20555
- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- l l
l fv I
,,, :\\ lY
^l
_dnry L.jEcGu;rren H
CounselWor NRC Staff l
l l
O e
e 4
i l*d*
b kPP ON(,