ML20055G785

NRC Staff Response to Applicant Motion for Reconsideration.* Advises That Nuclear Energy Accountability Project Has Not Established Standing to Intervene in Proceeding,Therefore, Petition Should Be Denied.W/Certificate of Svc

ML20055G785
Person / Time
Site:	Turkey Point
Issue date:	07/12/1990
From:	Patricia Jehle NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#390-10637 OLA-5, NUDOCS 9007240174
Download: ML20055G785 (8)

Text

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e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION tEt R I2 E BEFORE THE ATOMIC SAFETY AND LICHBfBINS MAR 15 58 In the Matter of ) Dockht'Nbs F59 A250 OLA-5

) 50-251 OLA-5 FLORIDA POWER AND LIGHT )

COMPANY ) Technical Specifications

) Replacement '

(Turkey Point Plant, Units 3 )

and 4) Facility Operating )

Licenses Nos. DPR-31, DPR-41 )

NRC STAFF RESPQNJE TO APPLICANT'S MOTION FOR RECONSIDERATIQE I. INTRODECJlQE On June 22, 1990, Applicant, Florida Power and Light Company, filed a motion for reconsideration. " Applicant's Motion for Reconsideration and Dismissal of Petition to Intervene," (June 22, 1990) (hereinaf ter Applicant's Motion) . Counsel for the parties conducted oral argument on the motion by means of a telephonic conference held on June 26, 1990. Transcript of Telephonic Conference (June 26, 1990). The Atomic Safety and Licensing Board (Licensing Board) gave the Staff leave to submit a written brief of the arguments it set forth in the telephonic conference.

Telephcnic Conference Tr. at 97-98. For the reasons set forth below, the Applicant's Motion should be granted.

II. BACKGROUND On June 15, 1990, the Atomic Safety and Licensing Board ordered Mr. Thomas saporito to file a pleading indicating his willingness to be represented by NEAP in this proceeding or face dismissal of the proceeding due to failure to establish standing to intervene. Memorandum and Order (Prehearing Conference: Parties and Contentions) (June 15, 1990), at 8, 50-51 (hereinafter 9007240174 900712 PDR ADOCK 0500 0 gg

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gh , ' Memorandum and Order- of June 15, 1990.) On June 19, _ 1990, Mr.J Saporito filed a statement indicating his intention to have-

-NEAPL represent his iU6 rests in this proceeding. "Interventr's (sic) . Statement to Represent," (June 19, 1990)-. Counsel for the, l Petitioner . advised- the Licensing Board that . Mr.

Saporito was a

W discharged . from his position at ATI Career.; Training Center in.

Miami,.. Florida on May 10, 1990. Letter of Billie Pirner Garde to the' Licensing-Board, dated June 20,'1990, at 2.1/

j On'JuneL22, 1990, the Applicant moved for reconsideration of

- . t h e -. L i c e n s i n g Board's June _15, 1990, ruling based on changed

} circumstances. Applicant's Motion at 4. The Staff's response is set forth below.

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s III. DJag.USSION

. The issue of NEAP's and Mr. Saporito's standing has been

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discussed extensively. See 5'NRC Staff Response to Petitioner's a Amended Petition for Leave to Intervene," (March 19, 1990) at 7-

-3 j) 10; " Applicant's Response to Amended Petition to Intervene,"- (March 5 LA/ H r. saporito has also raised an allegation of intimidation and 4 harassment ' by the Applicant. See e.g. , _ Letter of Billie Pirner 4 Garde- to the Licensing Board, dated June 20, 1990. It is the 3 Staff's view that the issue of intimidation and harassment is not before this Licensing Board. See Memorandum ' of Understanding 4,

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Between NRC and Department of Labor; Employee Protection (47 Fed.

Reg ' =: 54 5 8 5 ) . Mr. Saporito's allegatior.s are presently being

. investigated and adjudicated by the Department of Labor. lSee h

Memccandum and Order of. June 15, 1990, at 5-n.4 that the--initial Department of Labor determination points to an

. The Staff notes 9#

absence of intimidation: on the part of the Applicant and its representatives.: Id. If the Licensing Board should grant the j instant motion and, at some' point in the future, the Department of

= Labor"should find that Mr.-Saporito was wrongfully discharged he 4 - may file a' motion before the-commission to reopen the proceeding.

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, j j y ' j l6, 1990)Lat-6 n.9.; e9e.also Transcript of Prehearing. Conference held,in Miami,' Florida on March 23, 1990, Tr. at 4-6.- The Stafi argued that Mr. Saporito's standing to intervenu as an in6ividual 1 ,

- was based solely on his' employment in the Miami area; he had f ailed g

m' to establish standing based on residence. . "NRC Staff Response to

] .

Petitioner's1 Amended Petition to Intervene" at 7. The NRC.-staff ,

1 1 , .-and the Applicant had previously supported NEAP's standing based l on the-. standing of!Mr. Saporito, NEAP's Executive Director. See "NRC Staff Response to Petitioner's Amended Petition for Leave to j l

Intervene," (March 19, 1990) at 7-10; " Applicant's Response to -)

Amended Petition to Intervene," (March 16, 1990) at 6 n.9.; see

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also Transcript of Prehearing Conference held in Miami, Flcrida on j March 23, 1990,. Tr. at 4-6.

Subsequently, Mr..Saporito sought to withdraw " entirely and

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completely from; these proceedings'.' and to leave "only NEAP a Petitioner in these proceedings Without any reliance on 1

Mr. Saporito for standing." " Notice of Withdrawal from' Proceeding," )

1 (April 1, 1990) at 1-2. As the Licensing Board pointed out in its Memorandum and Order of April 24, 1990, the notice.of withdrawal forced the consideration of whether NEAP had standing to intervene independently of Mr. Saporito. Memorandum and Order (Motion to Withdraw)- ( April 24, 1990)- at 1, 5-8 (hereinafter Memorandum and Order of ' April 24, 1990); see also Memorandum and Order of June 15, 1990, at 7 n.6 The Licensing Board found "that NEAP does not have standing.

as an organization since it is merely claiming a generalized s

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j b grievance -- alleged danger.from a nuclear power plant -- that is J

shared-by.the. general public." -Memorandum and Order of April 24, W,

1990, at 6, - n. 3. Thus, NEAP, in order to participate in ' the .

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proceeding, had;to~ demonstrate representational: standing through

.. at least . one of its members. Id. at 8-10. ~ Accordingly,, the Licensing Board provided' NEAP with the opportunity.to identify;as member on which it bases _ its standing and- to submit a statement

. setting forth the. member's understanding of the privileges of J membership in NEAP and the' nature of the member's participation in the-organization. Id.

On ' May 5, 1990, NEAP filed its response to the Licensing Board's Order of April 24, 1990. " NEAP's Response - to ASLB's Memorandum and Order," (May 5, 1990).

In_its Memorandum and Order of June 15, 1990, the Licensing, Board found that the member chosen to represent NEAP d3d not meet the standards set forth in its

' Memorandum and Order of' April 24, 1990. The Board' stated:

We note thatc(were Mr. Saporito's notion grante.d) we are inclined to deny standing' based on the alleged standing of Shirley Brezenoff _-- whom we find:- (1) has no control, either~ formal or through her membership activities '(which

% s- did not discuss in her affidavit- despite our i'.vitation to do so) over NEAP, and'(2) became a member

' for Quad City Citizens for Nuclear Arms Control" and not for herself. (See her ' certificate of membership.)

Therefore, she lacks the indicia of membership requisite to provide a basis for NEAP's standing. Health Research Group V. Kennedy, 82 [F.R.D. 21 (D.D.C. 1979)..]

w  : Memorandum and Order of June 15, 1990, at 6 n.5; see also

_ Memorandum and Order of April 24, 1990, at 7-8, n.4. The Licensing Board cautioned Mr.-Saporito thht:

he is the sole basis on which NEAP relies and NEAP has

.already had all the opportunity it needs to establish iinn .i ..

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standing;-it.may not. file any further documents alleging

_a new basis for standing. Hence,,if Mr. Saporito. fails ~

'.to assure us'of,his willingness to hhve NEAP represent him (by' complying with paragraph 2-of our order,;below) -

• < the entire basis for standing for NEAP feils and this-c;- case will=be dismissed.

Memorandum:-and Order of June 15, 199 0, -' at ' 7-8, see also_Id.L50-4-

51. -

f Mr. Saporito- submitted a statement permitting NEAP to

- represent - him in this . proceeding. See "Intervenor's (sic)

Statement to-Represent," (June-19, 1990). Counsel for Petitioners advised the Licensing Board that Mr. Saporito was discharged from his-exployment at AT1 Career Training Center on May 10, 1990. _See Letter of Billie Pirner Garde - to the Licensing Board,- dated

- June 20,1990, at 2. - Although Mr. Saporito's discharge represented'

- a. material.Lchange in his -circumstances since the prehearing conference,-- he : failed' to advise' the Licensing _ Board of the discharge until June 20, 1990.U Mr. S'porito's a employment at ' ATI Career Training Center-provided the contacts necessary to establish'his personal standing to intervene and the organizational standing of NEAP. ' Memorandum

.and Order of Jr.no 15, 1990, at 6-8. Mr. Saporito's discharge has severed his ties with the Miami area and the " geographical zone of

-interest." Mr. Saporito does not have personal standing to intervene in the proceeding. NEAP may not derive its representational standing from Mr. Saporito.

2/The: Licensing Board was notified of Mr. Saporito's discharge only afterLits Memorandum and Order of June 15, 1990, had been issued.

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Mr. Saporito has'- had ample opportunity to set- forth information regarding his standing and that of NEAP. The Licensing Board has clearly.and repeatedly requested that the Petitioners provide information. which demonstrates NEAP's. standing to intervene. Petitioners have not fulfilled that Licensing Board's request.

The Licensing Board sht aid determine the standing issue on the basis of the facts at hand.

NEAP's claim of representational standing.was derived from the personal standing of its' executive

' director, Mr. Saporito. Mr. Saporito was discharged from the ATI

Career Training' Center in Miami. Accordingly, he no longer has ties with the Miami area and the " geographical zone of interest"

-sufficient;to-establish personal standing. Therefore, NEAP may not derive..its representational standing from Mr. Saporito. The Applicant's Motion should-be granted.

IV. CONCLUSION For the reasons set forth above, the Licensing Board should find that' NEAP has not established standing to intervene in this proceeding. Therefore, the petition should be denied.

Respectfully submitted, A

PEtricia Jehle Counsel for the NRC Staff Dated at Rockville, Maryland this 12th day of July, 1990 4

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p-J (10thEiED a4 USNkC UNITED: STATES OF AMERICA ^

NUCLEAR REGULATORYJCOMMISSION '90 JL 16 P6 38 b

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' BEFORE THE ATOMIC SAFETY AND LICENSING BOARD h.

OU ttt vi SECREIARY 00CKlilNG & M OVICI y 4 RANCH tin the Matter of ) Docket Nos.50-25b OLA-5

) 50-251-OLA-5 F -FLORIDA-POWER AND LIGHT;

)

COMPANY ) Technical' Specifications-

). Replacement a

-(Turkey. Point Plant, Units 3 ) d 1 'and.4) Facility Operating )

4 -Licenses.Nos. DPR-31,.DPR-41 )

7 .

'N CERTIFICATE OF SERVICE  :

-I hereby certify that ccpies of NRC STAFF RESPONSE TO APPLICANT'S.

~ MOTION FOR RECONSIDERATION" in the above-captioned proceeding.have been {

served on the following:by deposit in the United States' mail, first' q class, or as-indicated by an asterisk through deposit in the. Nuclear H Regulatory Commission's internal mail 4 system, this 12th day of July, [

1990 d

Peter B. Bloch,.Ch' airman Elizabeth B. Johnson 'l

Administrative Judge Administrative Judge .)

Atomic Safety and Licensing- Oak Ridge National Laboratory 1 Board Panel P.O. Box 2008, Bethel Valley Road .l

'U.S. Nuclear Regulatory Commission Building 3500, Mail Stop 6010 '!

Washington', D.C., 20555 Oak Ridge, TN 37831 1 1

a.: :Dr.. George . C. Ar:derson Steven.P. Frantz,' Esq.

Administrative Judge Harold F. Reis, Esq.  ;

7719, Ridge Drive, N.E. Newman & Holtzinger l Seattle,'WA 98115- 1615 L. . Street, N.W., Suite 1000 l

, Washington, D.C. 20036 E ' John T. Butler, Esq. , j

-Steel, Hector'& Davis Atomic Safety and Licensing Board l Panel (2) *

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p 4000 Southeast Financial Center ll

l. -Miami, FL: 33131-2398 U.S. Nuclesr Regulatory Commission Washington,z D.C. 20555 Thomas J. Saporito, Jr.

1202 Sioux Streec- Atomic Safety and Licensing Appeal

. Jupiter, FL 33458. Panel (5)

• U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Nuclear: Energy-Accountability ,

Ht . Project Post _ Office Box-129 Billie Pirner' Garde, Esq.

Jupiter,..FL 33468-0129 103 East' College Avenue Appleton, WI 14931 1

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ih J, 7 Billie Pirner[ Garde', Esq.? Office of the. Secretary (2)- .

Hardy, Milutin'& Johns . U.S. Nuclear Regulatory CommissionE ff 500_Two Houston: Center' Washington, D.C. 20555'

-909 Fanin Attnt ~ Docketing & Service Section -

P -Houston,: TX-77010'

1. ' Stewart Ebneter*- Adjudicatory File'(2)

• Atomic Safety and Licensing Board.:

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RegionaloAdministrator

.USNRC, Region.-II- 'U.S. Nuclear Regulatory Commission -

, J 101 Marietta Street, N.W.

Washington, D.C. 20555'

Suite 2900, L,:: . , ., Atlanta,.GA 30303 n-

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