ML20062C242

NRC Staff Brief Opposing Appellants Appeal from Licensing Board 900717 Memorandum & Order.* W/Certificate of Svc

ML20062C242
Person / Time
Site:	Turkey Point
Issue date:	10/22/1990
From:	Patricia Jehle NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#490-10956 OLA-5, NUDOCS 9010300185
Download: ML20062C242 (57)

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I 23 P2:43 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL dbEhb " '7 In the Matter of ) Docket Nos. 50 250 OLA 5

) 50 251 OLA 5 FLORIDA POWER AND LIGliT )

COMPANY ) Technical Specifications

) Replacement (Turkey Point Plant, Units 3 )

and4) )

NRC STAFF BRIEF OPPOSING APPELLANTS APPEAL FROM THE LICENSING BOARD'S MEMORANDUM AND ORDER OF JULY 17,1993 Patricia Jehle

,, Counsel for NRC Staff o .#

October 22,1990 I

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD in the Matter of ) Docket Nos. 50 250 OI.A 5 50 251 OLA 5

)

FLORIDA POWER AND LIGHT )

COMPANY ) Technical Specifications

) Replacement (Turkey Point Plant, Units 3 )

and4) )

NRC STAFF BRIEF OPPOSING APPELLANTS APPEAL FROM THE LICENSING BOARD'S MEMORANDUM AND ORDER OF JULY 17, 1990 Patricia Jehle Counsel for NRC Staff u

October 22,1990 4

i TABIF OF CONTEh"Is O '

g TABLE OF AUTHORITIES ...................... ii .

I. INTRODUCrlON ....................... 1  :

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11. BACKGROUND ........................ 2 III.. ISSUES PRESENTED ON APPEAL ,.......... 14 l IV. ARGUMENT .......................... 14 A. The Licensing Board Properly Denied NEAP Organizational Standing to Intervene in Its Own Right' ...... 14 -

B. The Ucensing Board Properly Denied NEAP Representational Standing Through Its Members ........... 19 ,

1. The Licensing Board was Correct in Applying the '

Indicia of Membership Standard in Determining hether NEAP had Demonstrated '

Representational Standing ............ 19 2.* The Licensing Board Properly Evaluated the

' Documents Offered by NEAP Members to '

Support NEAP's Standing Claims ........ 23  ;

' 3. The Licensing Board Properly Determined that NEAP did not Drive Organizational Standing ,

Based on Mr. Saporito's Duties as a NEAP '

O ffi ce r . . . . . . . . . . . . . . . . . . . . . . . . . . 28 C. The Licensing Board Properly Denied NEAP's Request for -

Discretionary Standing to Intervene . . . . . . . . . . . 31 l D. The Licensing Board was Correct in Denying NEAP Further l Opportunity to Provide New Su p

Representational Standing . . .pport for its Claims

.............. 35 of  :

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1. NEAP was Provided with the Necessary Time to Plead Standing . . . . . . . . . . . . . . . . . . . . . 35 v

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2. Petitioner is Obligated to be Familiar with l' and Comply with the Commission's Regulations ,

and its Pleadings will not be Given Deference by a Ucensing Board . . . . . . . . . . . . . . 37  ;

V. REQUEST TD HOLD ORAL ARGUMENT IN MIAMI . . 40 L A. Petitioner has Requested Oral Argument in  !

Miami, Florida . . . . . . . . . . . . . . . . . . . . . . . . . 40 B. Petitioner has not set Forth Persuasive Arguments for Scheduling Oral Argument in Miami, Florida . . . . . 41 C. Petitioner's Request for Oral Argument Should be Denied ........................... 43 VI. CONCLUSION .......................... 44 I P

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.o TABIF OF AUTHORITIES l i

EASC COURT CASES:

Clontara, Inc. v. Runkel, 722 F. Supp.1442 (E.D. Mich. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,22,25 Dellums v. NRC, 863 F.2d 968 (D.C. Cir.1988) ......... 16,28 Health Research Group v. Kennedy, 82 F.R.D. 21 (D.D.C.1979) .............................. 20, 21, 22, 23, 25, 37

' Hunt v. Washington Apple Advertising Commission, 432 U.S. 333 (1977) ......................... 20, 21, 22, 23, 25, 37 Sierra Club v. Aluminum Company of America, 585 F. Supp. 842 (N.D.N.Y.1984) ................ 22, 25 Sierra Club v. Monon, 405 U.S. 727 (1972) ............ 14, 15, 16, 18, 21 Wanh v. Seldin, 422 U.S. 490 (1975) ................ 14, 19, 21 ADMINISTRATIVE DECISIONS:

Advanced Nuclear Fuels Corp. (Import of South African Enriched Uranium Hexafloride), CLI-87 9, 26 NRC 109 (1987) ......................... 41,42 Allied. General Nuclear Services (Barnwell Fuel ReceMng the Stcrage Station), ALAB 328,3 NRC 420 (1976) ..... 18 l

f Boston Edison Co. (Pilgrim Nuclear Power Station),

ALAB 816, 22 NRC 461 (1985) ................. 38 l

L Boston Edison Co. (Pilgrim Nuclear Power Station),

l LBP-85 24, 22 NRC 97, aff'd on other grounds, L ALAB-816, 22 NRC 461 (1985) .................. 18,29 l

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ADMINISTRATIVE DECISIONS (CONTINUEDh East Cincinnati Gas & Electric Co. (Zimmer Nuclear Power l Station), ALAB 305,3 NRC 8 (1975) .............. 28 Cleveland Electric illuminating Co., et al. (Perry i Nuclear Power Plant, Units 1 and 2), ALAB-802, >

21 NRC 490 (1985) ......................... 38 Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), CLI 86 8, 23 NRC 241 (1986) ......................... 38 Consolidated Edison Co. of New York (Indian Point Unit No. 2) and Power Authority of the State of New York (Indian Point Unit No. 3), LDP 82 25, ,

15 NRC 715 (1982) ......................... 23,27,28 Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB 691, 16 NRC 897 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Consumers Power Co. (Palisades Nuclear Plant),

LBP 79 20,10 NRC 108 (1979) .................. 39 Dairyland Power Cooperative (IaCrosse Boiling Water Reactor), ALAB-497,8 NRC 312 (1979) ............ 18 Duke Power Co. (Amendment to Materials License SNM 1773-Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB 528,9 NRC 146 (1979) .................................... 25 Duquesne Light Co. (Beaver Valley Power Station, Unit 2), LBP-84-6,19 NRC 393 (1984) ............. 25 Duquesne Light Co. (Beaver Valley Power Station, Unit 1), ALAB-109,6 AEC 243 (1973) ............ 43 Edlow International Co. (Application to Export Special Nuclear Material), CLI 76-6, 3 NRC 563 (1976) .............. 15 Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI 89-21, 30 NRC 325 (1989) ......................... 16,18,20,29

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ADMINISTRATIVE DECISIONS (CONTINUEDh EAEt Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit 1, ALAB 893, '

27 NRC 627 (1988) ......................... 41,42 Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), Memorandum and Order (Consideration of Possible Sua Sponte issues), (unpublished) (September 25, 1990) .......... 13, 34 Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP 90 24,.

32 NRC 12 (1990) .......................... passim Florida Power and Light Co. (Turkey Point Nuclear Plant, Units 3 and 4), (Docket Nos. 50 250-OLA-4, 50 251-OLA-4, P/T Limits), Appeal Board Order, (unpublished) (July 19, 1990) ................... 42  :

Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP 90-16, 31 NRC 509 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . passim Florida Pcwer and Light Co. (Turkey Point Nuclear Ge..erating Plant, Units 3 and 4), Memorandum and Order (Motion to Withdraw), (unpublished)

(April 24,1990) ............................ 6, 15, 24, 36, 37 Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), Memorandum and Order (unpublished) (February 5,1990) ......... 4 Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB 609, 12 NRC 172 (1980) ....,.................... 39 Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB 535,

, 9 NRC 377 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . parsim

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ADMINISTRATIVE DECISIONS (CONTINUED):

EASC Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB 549, 9 hRC 644 (1979) .......................... 28,39 Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB.125, 6 AEC 371 (1973) . . . . . . . . 18,29 Aferropolitan Edison Co., et al. (Three Mile Island Nuclear Station, Unit No.1), CLI 83 25, 18 NRC 327 (1983) ......................... 40 Aferropolitan Edison Co., et al. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193 (1984) ......................... 38 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB 107, 6 AEC 188, aff'd, CL17312, 6 AEC 241 (1973) ....... 18,43 Nuclear Engineering Co. (Sheffield, Illinois Low-I.xvel Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737 (1978) .......................... 15, 16, 28, 32 Pennsyh'ania Power and Light Co. and Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electnc Station,' Units 1 and 2), ALAB 693, 19 NRC 952 (1982) .......................... 38,40 Pennsyhania Power and Light Co. and Allegheny Electric Cooperatire, Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB 563, 10 NRC 449 (1979) ......................... 39,40 As p

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% e V-ADMINISTRATIVE DECISIONS (CONTINUEDh P.asc Philadelphia Electric Co. (Umcrick Generating Station, Units 1 and 2), ALAB 845,24 NRC 220 (1986) ....... 31,41 Philadelphia Electric Co. (Umerick Generating Station, Units 1 and 2), LBP 82 43A,15 NRC 1423 (1982) ...... 29 Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 1 and 2), ALAB 566, 10 NRC 527 (1979) ......................... 42 Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI 76 27, 4 NRC 610 (1976) .......................... passim Public Service Co. of Oklahoma Associated Electric Cooperative, Inc. Western Fanners Electric Cooperative, Inc. (Black Fox Station, Units 1 and 2), ALAB 397,5 NRC 1143 (1977) ....... 32,35 Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Units 1 and 2), ALAB-650, 14 NRC 43 (1981) .......................... 38 Puget Sound Power and Light Co., et al. (SkagitlHanford Generating Station, Units 1 and 2), ALAB-700, 16 NRC 1329 (1982) ......................... 16 South Carolina Electric and Gas Co., et at. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642,13 NRC 881 (1981) .. 25 Statement of Policy on Conduct of Licensing Proceedings, CLI 81-8,13 NRC 452 (1981) ........... 38,40 Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413,5 NRC 1418 (1977) ....... 29,32

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ADMINISTRATIVE DECISIONS (CONTINUEDh EAEC I

Texas Utilities Generating Co., (Comanche Peak Steam i Electric Station, Units 1 and 2), LBP.7918, j 9 NRC 728 (1979) .......................... 29 o

Transnuclear, Inc. (Ten Applications for low Enriched l Uranium Exports to EURATDM Member Nations), ,

CLI 77 24, 6 NRC 525 (1977) ................... 16 I Virginia Electric and Power Co. (North Anna Nuclear i Power Station, Units 1 and 2), ALAB.536, 9 NRC 402 (1979) .......................... 18 Virginia Electric and Power Co. (North Anna Nuclear >

Power Station, Units 1 and 2), ALAB-522, 9 NRC 54 (1979) ........................... 18,29,43 Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB 363, 4 NRC 631 (1976) .......................... 18,32 Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB 342, 4 NRC 98 (1976) . ........................... 28 Westinghouse Electric Corp. (Export to South Korea),

CLI 80 30,12 NRC 253 (1980) .................... 15, 16 H7sconsin Electric Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666,15 NRC 277 (1982) ....... 41 to

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STATUTES:

Atomic Energy Act of 1954, 42 U.S.C. I 2239 ......... 20,28,41,42 REGULATIONS:

10 C.F.R. I 2.713(b) .......................... 20

- 10 C.F.R. 6 2.714 ............................ 32,36 10 C.F.R. ( 2.732 - ............................ 40 10 C.F.R. I 2.763 ............................ 41 10 C.F.R. I 2.785(a) .......................... 41 10 C.F.R. Part 2, Appendix A, IX(c) ............... 41,42 MISCELLANEOUS:

" Florida Power and Light Co.; Consideration of Issuance of Amendment to Facility Operating IJcenses and Opportunity for Hearing," 54 Fed. Reg. 50295 (December 5,1989) ......................... 3 4 -.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD in the Matter of ) Docket Nos. 50-250 OLA 5

) 50-251 OLA 5 -

)

FLORIDA POWER AND LIGHT ) Technical Specifications COMPANY ) Replacement

)

(Turkey Point Plant, Units 3 )

and4) )

NRC STAFF BRIEF OPPOSING APPELLANTS APPEAL FROM THE LICENSING BOARD'S MEMORANDUM AND ORDER OF JULY 17. 1990

1. INTRODUCTION On July 17,1990, the Atomic Safety and Licensing Board (Licensing Board) presiding in the captioned proceeding issued a Memorandum and Crder (Motion to Dismiss)u in which it dismissed the Nuclear Energy Accountability Project (NEAP) from the proceeding because of lack of standing to intervene.F In the Memorandum and Order, the Licensing Board also denied the NEAP's request for discretionary intervention because NEAP failed to demonstrate that it would u Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP 90 24,32 NRC 12 (1990).

U Thomas J. Saporito's motion to withdraw as an individual from this proceeding was granted by the Licensing Board in its June 15,1990, Memorandum and Order, however, the Board omitted an ordering paragraph in its order. Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP 9016,

., 31 NRC 509,514 (1990). The Board formally dismissed Mr. Saporito from the proceeding by the July 17, 1990, Memorandum and Order. Turkey Point, LBP 90 24,32 NRC at 13 n.1,19 n.22.

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2-make a valuable contribution to the record. Turkey Point, LBP 90 24,32 NRC at 16 17.

NEAP (Appellant) and Thomas J. Saporito filed a brief in support of their appeal of the order of July 17, 1990, before the Atomic Safety and Ucensing .

Appeal Board (Appeal Board). on September 5,1990. *Brief for Appellants Nuclear Energy Accountability Project (NEAP) and Thomas J. Saporito on Dismissal of Petition to Intervene" (September 5,1990).F For the reasons set forth below, the Ucensing Board's decision to dismiss NEAP from the proceeding and to deny discretionary intervention to the Appellant was proper. Accordingly, the July 17, 1990, Order of the Ucensing Board should be affirmed.

II. BACKGROUND On December 5,1989, the Commission published a notice of " Consideration of issuance of Amendments to Facility Operating Ucenses and Opportunity for Hearing" in the Federal Register concerning an application by Florida Power and Ught Company (Applicant) for amendments to its operating licenses for Turkey Point Units 3 and 4. The amendments replaced the Technical Specifications for both units with revised technical specifications based on the Westinghouse Standard Technical Specifications.

• Florida Power and Ught Co.; Consideration of Issuance F As an individual, Mr. Saporito has no right to take an appeal from the Ucensing Board's Memorandum and Order (Motion to Dismiss) because he has withdrawn from the proceeding. See " Notice of Withdrawal from Proceeding" (April 1,1990);

see supra at note 2. Therefore, the Staff is treating this appeal as solely related to NEAP.

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of Amendments to Facility Operating Ucenses and Opportunity for Hearing" 54 Fed. Reg. 50295 (December 5,1989).F On December 27,1989, Mr. Thomas J. Saporito, Jr. filed a request for a hearing and petition for leave to intervene on his own behalf and on behalf of the ,

Nuclear Energy Accountability Project (NEAP) Request for Hearing and Petition for I. eave to Intervene" (December 27,1990). The Staff responded on January 16, 1990. NRC Staff Response to Request for Hearing and Petition to Intervene of Nuclear Energy Accountability Project and Thomas J. Saporito, Jr." (January 16, 1990). The Staff argued that neither hir Saporito nor NEAP had standing. Id.

at 6. According to the Staff, hir. Saporito has failed to provide sufficient information to show that he has regular contacts within a 50 mile radius of the Turkey Point plant. The evidence of his contacts with the hilami area provided

' by hir. Saporito is not sufficient to establish standing to intenene.

Id. at 7.

The Staff further argued that NEAP did not have standing as an organization since its principal place of business is outside the Turkey Point geographical zone of interest, and since NEAP only had a general interest in environmental issues. Id. at 8. The Staff also asserted that NEAP had not demonstrated representational standing through Mr. Saporito or any of its members. Id. at 9. NEAP could not derive representational standing through hir. Saporito, since he had failed to establish regular contacts in the vicinity of the 9 On August 28,1990, the Staff issued the Ucense Amendments for Turkey Point Units 3 and 4. Copies of the Amendments and the Staff's Safety Evaluation were served to the Ucensing Board and all parties. "1.etter from Janice hioore to the Ucensing Board" (August 29, 1990).

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e t Turkey Point plant. Moreover, according to the Staff, NEAP could not base its standing on any of the four persons listed in the petition. The Staff claimed that an affidavit executed by a NEAP member with the requisite standing which authorizes NEAP to serve his or her interests'in a representational capacity was required. Id.  ;

On February 5,1990, the Ucensing Board issued its Memorandum and Order (Prehearing Conference; Filing Schedule). The Ucensing Board requested f that the Petitioners amend their pleadings in order to state their concerns with '

particularity. Id. at 5.

, Until petitioners state their concern with particularity, we do not 1 I have an opinion concerning whether a 50 mile zone of interest is an l

appropriate test for standing in this case. We suggest that petitioners address each argument made by Applicant and Staff, either by filing j requested clarifications of their evidentiary position or through rebuttal legal argument or both.

Id. (citations omitted).

On March 5,1990, the Petitioners filed an amended petition which provided information that Mr. Saporito worked in the Miami area on a regular basis.

" Petitioners (sic) Amended Petition for Intervention and Brief in Support Thereof" l at 1011 (March 5,1990) (hereinafter Amended Petition). Petitioners also set 1

forth Mr. Saporito's interests which would be affected by the results of this proceeding. Id. at 911.

The Staff responded on March 19, 1990. "NRC Staff Response to Petitioners' Amended Petition for Leave to Intervene"(March 19, 1990). Both the Staff and Applicant agreed that Mr. Saporito had standing to intervene based on his employment in the vicinity of Turkey Point. Id. at 7; " Applicant's Response a , ,

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to Amended Petition to Intervene" (March 16, 1990). NEAP, therefore, had representational standing only through Mr. Saporito. The Staff went on to note that the four other persons named in the' Petition could not give NEAP standing.

Id. at 9. "[T]he Petitioners have not provided affidavits which identify these  !

t individuals' interests. Mr. Saporito should be required to provide such affidavits  ;

if NEAP still seeks to establish standing of these individuals."Id.  !

The Staff also noted that since both Mr. Saporito and NEAP had standing to intervene in this proceeding, the Staff would not discuss in detail the issue of i discretionary intervention. Id. at 10. However, if discretionary intervention were to become an issue, the Staff argued that it should be denied because Petitioners had not met the standards for discretionary intervention. Id. Petitioners had not shown that they would make a valuable contribution to the proceeding. Thus, they ,

were not entitled to discretionary intervention. Id.

A Prehearing Conference was held in Miami, Florida on March 23, 1990.

Mr. Saporito attended the conference, representing himself and NEAP.

L Mr. Saporito filed a motion to withdraw from the proceeding on l April 1,1990. " Notice of Withdrawal from Proceeding," (April 1,1990). The l NRC Staff filed its response on April 23,1990. " Staff Response to Thomas J.

Saporito, Jr.'s Notice of Withdrawal" (April 23, 1990). The Staff maintained that 1

! NEAP had no standing independent from Mr. Saporito.

l l , NEAP has failed to establish organizational standing on its own because it has not demonstrated a particularized interest which could be affected by the proposed action. Furthermore, NEAP's status as an emironmental and educational organization is not a sufficient basis for independent organizational standing.

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,.. 6-Id. at 3. The Staff also reiterated its claim that NEAP had not established representational standing.

To establish representational standing, NEAP must provide an affidavit which identifies at least one individual who is a member of NEAP, identifies the injury in fact to the individual's interest, and '

authorizes NEAP to represent that interest. The documents which NEAP has submitted are insufficient to establish representational standing.

Id.

The Ucensing Board issued its Memorandum and Order (Motion to Withdraw) on April 24, 1990. The Ucensing Board noted that if Mr. Saporito's request to withdraw were granted, the issue of NEAP's standing, which had been resolved, would be revived. The Ucensing Board determined that NEAP did not have standing as an organization since it was merely claiming a general grievance.

Id. at 6. The Board requested additional information from NEAP regarding its membership policies and a name of another authorized representative. Id. at 8. 1 Specifically, the Ucensing Board requested:

a statement signed by an authorized officer of hT.AP that:

1. The organization has decided that it desires to continue to be represented in this proceeding.  ;

2. Sets forth the name of the organization's authorized representative in this proceeding.

3. Explains the nature of and privileges of membership in NEAP and how the organization determines whether a particular person is a member. -

4. States that each of the persons on whom NEAP relies for standing is a member of NEAP, including the date they became a member and that they have been a member since the beginning of this proceeding until the present date."

4 1d. The Board also requested that Petitioners provide the following information:

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l? - .7 from.the person or persons on whom standing may be based, a statement that:

1. They desire to be represented by NEAP in this proceeding.

2. Establishes that they have a personal interest in the proceeding (such as their place of residence or the other contacts that establish that they have a direct interest; and the nature of the interest they seek to '

protect).

3. Establishes the date they became a member of NEAP and that they are currently members of NEAP.,

4. Communicates their understanding concerning their privileges as a member of NEAP and the nature of their participation in NEAP activities.

Id. at 9.

On May 5,1990, NEAF responded to the Licensing Board's Order of April 24,1990. " NEAP's Response to the ASLB's Memorandum and Order" (May 5,1990). . In its response NEAP authorized Mr. Saporito to be its i

representative in this proceeding. Id. at 2. NEAP also provided its policy I i

regarding members. According to NEAP's by laws, members are " entitled to receive information and newsletters, but they will have no voting rights unless ,

otherwise authorized by the Board." Id. at 2 3 NEAP further stated that it would rely on its member, Ms. Shirley .Brezenoff, for standing. NEAP provided an affidavit from Ms. Brezenoff and a copy of her membership application, although NEAP maintained that the IJeensing Board did not require that this information be provided in affidavit form. . Id. at 3. In her affidavit, 1 Ms. Brezenoff stated that she was a member of NEAP, was concerned about the ,

operating license amendment, lived within 50 miles of Turkey Point, and i authorized NEAP and Mr. Saporito to represent her interests. Id.

Ms. Brezenoff's membership application listed her as a member, however she

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4 signed her name "for Quad City Citizens for Nuclear Arms Control," not, apparently, for herself as an individual. Id.

The Applicant and the Staff responded on May 17, 1990, and May 24, 1990, respectively. " Applicant's Reply to NEAP's Response to the ASl_B's .

Memorandum and Order" (May 17,1990) (hereinafter Applicant's Reply); *NRC Staffs Reply to NEAP's Response to 1.icensing Board's Memorandum and Order of April 24 1990," (May 24,1990) (hereinafter Staffs Reply). The Applicant argued that NEAP failed 16 :"ablish standing through Ms. Brezenoff. Applicant's Reply at 14. The affidavit failed to provide information regarding Ms. Brezenoffs privileges or the nature of her participation in NEAP. Id. Furthermore, the Applicant argued, Ms. Brezenoff did not possess any " indicia of membership" since she, as a member, had no ability to exercise any control over NEAP. Id. at 15.

The. Staff argued that NEAP failed to allege sufficient facts to grant it' representational standing. The Staff concluded that Ms. Brezenoff met the requirements for personal standing, was a member of NEAP, and had authorized NEAP to represent her. However, the Staff argued,"the affidavit provided by one of NEAP's members does not indicate any understanding on the part of that member as to her privileges or the nature of her participation in NEAP." Staffs Reply at 8. The Staff noted that NEAP's members are not entitled to voting rights. Id. at 7. NEAP gave no information regarding how directors are chosen

, ' and whether they are also members. Id. at 8. " NEAP's members do not appear to have any input at all into the management of the organization's activities." Id.

The Staff maintained that NEAP was not a traditional membership organization 1

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1 of the type contemplated by the courts. Therefore, the Staff concluded, NEAP was not entitled to representational standing. ,

On June 15,1990, the Ucensing Board issued its hiemorandum and Order

-(Prehearing Conference Order: Parties and Contentions), finding that the statement provided by NEAP was insufficient to form the basis for NEAP's standing. Florida Powcr and Light Company (Turkey Point Plant, Units 3 and 4),

l LBP 9016, 31 NRC 509, 514 (1990). Therefore, the Ucensing Board denied hir. Saporito's motion to withdraw as a representative of NEAP since the effect -

would be to place once again, the question of NEAP's standing in controversy.

It did allow hir. Saporito to withdraw as an individual. The Ucensing Board went i

on to note that:

If hir. Saporito continues to withdraw himself as the basis for NEAP's standing, he may do so. However, he is the sole basis on .

which NEAP relies and NEAP has already had all the opportunity it needs to establish standing; it may not file any further documents alleging a new basis for standing. Hence, if hir. Saporito fails to assure us of his willingness to have NEAP represent him (by complying with paragraph 2 of our order, below) the entire basis for standing for NEAP fails and this case will be dismissed. '

Id. at 514. The Ucensing Board also admitted five contentions. Id. at 538 39.F >

On June 20,1990, the Ucensing Board was advised that hir. Saporito had been dismissed from his job on hiay 10,1990. ' letter from Billie Pirner Garde to Ucensing Board" (June 20, 1990). On June 22, 1990, the Applicant filed a

, u The Ucensing Board admitted two emironmental contentions. Turkey Point, LBP 9016,31 NRC at 538 39. The Ucensing Board stated: [o]nly if the litigation of the other contentions establishes that there is enough of an impact on safety for this amendment to be a major federal action, will it be necessary to litigate these twio emironmental contentions separately." Id. at 538 (footnote omitted); see also Id. at n.34.

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i motion for reconsideration and dismis, sal of NEAP's petition to intenene.  :,

" Applicant's Motion for Reconsideration and Dismissal of Petition to Intervene" (June 22,1990). The Staff supported the motion. The Applicant requested that the Licensing Board reconsider its Memorandum and Order because of a material i i

change in circumstances: Mr. Saporito's dismissal. Id. at 12. The Applicant argued that since Mr. Saporito no longer worked within the geographical zone of interest of Turkey Point, NEAP no longer had standing to intervene in this F

proceeding. Id. at 2 3. The Applicant requested that the Licensing Board dismiss the petition to intervene since, "[d]espite numerous opportunities, NEAP and Mr.

Saporito have failed to establish any other basis to sustain a claim to standing."

Id. at 4. -

t On June 26,1990, a telephonic prehearing conference was held to discuss the Applicant's motion. At the outset, the Board declared that "Mr. Saporito had all the opportunity you could possibly imagine to tell us . . . why NEAP has standing . . . . There really was no ambiguity about our request that he do that."

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' Transcript of Prehearing Conference" at 71 (June 26,1990). After discussing the issues raised in Applicant's motion, both Appellant and the Staff requested permission to respond in writing. Id. at 97. The Board granted both requests.

- Id. at 98. ,

The Appellant responded to the Applicant's motion on July 10, 1990.

3, " Response of Nuclear Energy Accountability Project and Thomas J. Saporito to Florida Power and Light's Motion for Reconsideration and Dismissal of Petition to Intervene" (July 10, 1990). The Appellant agreed that Mr. Saporito's dismissal

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from his employment at ATI placed NEAPS basis for standing into question. Id.

at 2. Appellant also requested that the Board reconsider its Order and asked for permission to submit additional facts and legal arguraents in support of NEAPS standing. Id. at 3. Appellant argued that because the Ucensing Board had determined that standing was founded solely on Mr. Saporito's employment, it did not' fully consider other bases for NEAP's standing, including the issue of discretionary standing. Id. at 8 9.

On July 12, 1990, the Staff filed its "NRC Staff Response to Applicant's Motion for Reconsideration." In its response, the Staff stated that the issue of Mr. Saporito's and NEAPS standing had been discussed extensively in previous pleadings. "NRC Staff Response to Applicant's Motion for Reconsideration" at 2 (July 12,1990). The Staff also noted that the Licensing Board had requested repeatedly that the Appellant provide information demonstrating NEAPS standing to intervene.

Mr. Saporito has had ample opportunities 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 NEAPS standing to intervene.

Petitioners have not fulfilled that Licensing Board's request.

Id. at 6.

The Staff argued that since NEAP had failed to fulfill the Board's requests, the Ucensing Board should determine the standing issue based on the facts at

, hand. Id. The Staff concluded that Mr. Saporito no longer had ties with the Miami area sufficient to establish personal standing. Id. at 6. Since NEAPS sole basis for representational standing was Mr. Saporito's employment in the

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, geographical zone of interest, the Staff argued that the Board should dismiss the petition to intervene. Id. Therefore, the Staff argued NEAP may not derive its representational standing from Mr. Saporito.14.

l On July 17, 1990, the Ucensing Board granted Applicant's motion and .

dismissed NEAP from the proceeding for lack of standing. Florida Power and i Light Company (Turkey Point Plant, Units 3 and 4), LBP 90 24, 32 NRC 12 I (1990). De Ucensing Board emphasized that the sole ground" for NEAPS standing was Mr. Saporito's employment. Id. at 14. The Board noted:

Mr. Thomas J. Saporito, who is not a lawyer, has appeared on behalf 1 of NEAP, as is his right under the procedural regulations.10 CFR ,

i 2.1215(a) (sic). As the representative of NEAP, Mr. Saporito had i the full authority and responsibility to represent it, on both technical and procedural matters. He could win or lose the case on complex

-issues of science, engineering and law. He also could make arguments that impose the costs of response on opposing parties and the costs of decision on the Nuclear Regulatory Commission. While we have been patient and protective of his needs as a non lawyer, he ,

has now had all the protection he can properly be afforded.

- NEAP has had ample opportunity to demonstrate that it has standing 3 independent of Mr. Saporito, and it has not done so.

/d at 15.

The Licensing Board also addressed the issue of discretionary intervention.

Id. The Board reviewed Mr. Saporito's credentials and determined that "Mr. Saporito has brought little technical expertise to his presentation of his contentions." /d. at 16. Moreover, it appeared that no other member of NEAP

, was prepared to help him nor could NEAP afford to hire technical assistance. Id.

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The Board, therefore, concluded that NEAP was not entitled to discretionary intervention. Id. at 17.F ,

NEAP and Mr. Saporito filed a

• Notice of Appeal" (July 25,1990).

Petitioner requested (1) an oral argument of the issues on appeal, and (2) that oral argument be held in Miami, Florida. Id. at 2. Appellant filed its appeal brief on September 5,1990. Brief For Appellants on Dismissal of Petition to Intervene" (September 5,1990) (hereinafter Petitioner's Brief). The Applicant filed its responsive brief on October 11, 1990. Ucensee's Brief in Response to the NEAP Appeal of the Ucensing Board's July 17,1990 Memorandum and Order (Motion to Dismiss)" (October 11,1990) (hereinafter Ucensee's Brief).

L F

The Board also asked the Staff and the Applicant to comment on whether any of the admitted contentions raised issues requiring sua sponte consideration by the Board. Id. at 18. The Staff filed its response to this request on August 31,1990.

"NRC Staffs Response to Ucensing Board's Order of July 17,1990," (August 31, 1990). The Staff argued that none of the issues should be treated sua sponte. Id.

at 410. The Applicant filed its Response on September 14,1990 supporting the Staffs view. " Applicant's Response to Memorandum and Order (Motion to

! Dismiss)" (September 14, 1990).

) The Board issued its Memorandum and Order on September 25,1990.

l Memorandum and Order (Consideration of Possible Sua Sponte Issues)

L (September 25,1990). The Board decided that there were no issues of sufficient i safety significance on which to base a sua sponte issue. Id. at 12. The Board, ,

however, still had some concerns regarding the amendments and requested that the Advisory Committee on Nuclear Safeguards (ACRS) consider its concerns. Id. at

2. The Board then dismissed the proceeding. Id. On October 15,1990, the ACRS issued a memorandum stating that the safety significance of the Board's concerns was addressed in the 366th meeting of the ACRS. " Letter from R.F.

, Fraley to P.B. Bloch" (October 5,1990). The ACRS also noted its decision to take no further action regarding the Turkey Point, Units 3 and 4 revised technical specifications. Id.

l f

, - }4 + I III ISSUES PRESENTED ON APPEAL A. Whether the Ucensing Board properly denied NEAP organizational standing l to intervene in its own right?

B. Whether the Ucensing Board properly ' denied NEAP representational standing through its members? , t C. Whether NEAP was properly denied discretionary intervention by the Ucensing Board?

D. Whether the Ucensing Board correctly denied NEAP an additional opportunity to provide new support for its claims of representational -

standing? ~!

IV. ARGUMENT A. The Ucensing Board Properly Denied NEAP Organizational Standing to Intervene in its Own Right.

Appellant claims that the Ucensing Board erred in denying NEAP l organizational standing in its owa right. See generally Appellant's Brief at 35-43.

Appellant asserts that NEAP demonstrated standing to intervene as an +

organization, independent of representational standing derived from its members or officers. Id. NEAP's organizational purposes are alleged to provide the basis I for organizational standing. Id. at 41-43. Appellant's arguments are without merit.

Appellant has not demonstrated an injury in fact to NEAP's organizational

, interests in support of its claim that NEAP has organizational standing in its own ,

right. '

, The Supreme Court has held that a petitioner organization must demonstrate an injury in fact either to its own interests or to those of its members

u a u u 15 -

in order to gain standing. Wanh v. Scldin, 422 U.S. 490, 511 (1975); Sierra Club

v. Monon, 405_ U.S. 727, 734 36 (1972). The Supreme Court found that:

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 render the organization

" adversely affected" or " aggrieved" within the meaning of the APA.

Sierra Club,405 U.S. at 739.

The Commission has held that judicial concepts of standing are to be used to determine whether a petitioner has sufficient interest to intervene -in a proceeding. Ponland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI 76 27,4 NRC 610 (1976). These judicial concepts of standing apply both to individuals and to organizations seeking intervention in Commission proceedings. Westinghouse Electric Corp. (Export to South Korea), CLI 80-30,12 NRC 253, 258 59 (1980); Pebble Springs, CLI 76 27, 4.NRC at 613; Edlow Intemarional Co. (Agent for the Government of India on Application to Export Special Nuclear Material), CLI 76 6, 3 NRC 563, 569-70 (1976); Nuclear Engineering Co. (Sheffield, Illinois, Low 1.evel Radioactive Waste Disposal Site),

ALAB-473, 7 NRC 737, 740-42 (1978). The parties to this proceeding were advised by the Licensing Board that contemporaneous judicial concepts of standing would be applied in its evaluation of the standing issue. Memorandum and Order (Motion to Withdraw) at 910 (April 24,1990) (unpublished).

The Commission has held that to establish organizational standing on its own an organization must demonstrate that it will suffer an injury which (1) is not a generalized harm, and (2) is not shared by a large class of citizens.

Transnuclear, Inc. (Ten Applications for low Enriched Uranium Exports to

.*~

' EURATOM Member Nations), CU 77 24,6 NRC 525,531 (1977); Pebble Springs, CU 76-27, 4 NRC at 61314. The assertion, by an organization, that it has an interest in a proceeding or in nuclear issues in general is not sufficient to establish independent standing to intervene in a licensing proceeding; an allegation that an ,

injury has or will result from the proceeding is required. Puget Sound Power and Light Co., et al. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), ALAB.

700,16 NRC 1329,1333 (1982); Nuclear Engineering, ALAB-473,7 NRC at 741; see also Sierra Club, 405 U.S. at 739-40. An organizational petitioner must allege an injury in fact that is within the protected zone of interest and a real stake in the outcome of the proceeding. DcIlums v. NRC, 863 F.2d 968, 971 (D.C. Cir.

1988); Pebble Springs, CU 76 27, 4 NRC at 61314; Transnuc! car, Inc., CU 77-24,6 NRC at 530 32; Nuclear Engineering, ALAB-473,7 NRC at 743.

The Commission's adjudicatory boards have also held that an organization may establish standing through the interest of its members or on its own. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535,9 NRC 377,389 94 (1979); see also Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CU 89 21,30 NRC 325,329 (1989). An organization may meet the injury in fact test in two separate ways: (1) by demonstrating an injury to its organizational interest; or (2) by demonstrating its members are suffering an immediate or threatened injury due to the proposed action. Westinghouse Electric, CD-80 30,' 12 NRC at 258 59; Allens Creek, ALAB.

535,9 NRC at 389 94; see also St. Lucie, CU 89 21,30 NRC at 329.

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. Although - Appellant asserts that NEAP should have been granted

, , _ independent standing to intervene as an organization,- Appellant's Brief at 36, t i

l41-43, Appellant does not distinguish the standards an organization must meet to s i establish organizational standing in its own right from those standards that must , j 4

be met to demonstrate. representational standing through one' or more of its _

members. Id.' at 38-43. In fact, Appellant apparently has confused the standards ,

and has set forth an incorrect standard for an organization's independent standing.

Id. at 41. Contrary to the Appellant's claims, the purposes and goals to which an organization subscribes is not the primary factor in establishing standing to'.

intervene. See Id. at 41-42. . What is crucial to demonstrating standing to

. intervene is an allegation that there is an immediate or threatened injury to an 4

- organizational interest which is' within the zone of protected interests.

Appellant ;has failed to demonstrate an injury in fact ~ to NEAP's organizational interestF that is within the zone of protected interests. Appellant asserts that NEAP's principal place of business is Jupiter, Florida, which is 2 9

approximately 83 miles from the Turkey Point Plant. Amended Petition at 15.

NEAP has not alleged facts which support a conclusion that the licensing action -

at issue here could result in an accident which could affect it in Jupiter, Florida.

2/

Appellant discussed NEAP's purposes in its various pleadings, but only in-its appeal brief did it set forth NEAP's particularized purposes. Appellant's Brief at ,

. 42-43. . Earlier descriptions of NEAP's purposes characterized NEAP as an -

1 environmental and educational organization. " Request for' Hearing and Petition -

for Leave to Intervene" at 1-2 (December 27,1989); Amended Petition at 15-16; 4 "Intervenor's Answer to Applicants's April 13, 1990 Response and Intervenor's Motion for Sanctions Against the Applicant and Intervenor's Motion for I. cave to Amend Contentions" at 5 (April 20,1990).

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y .1 See St. 'Lucie, CL189 21, 30..NRC at 329; Boston Edison Co. (Pilgrim Nuclear 4

Power Station), LBP-85 24, 22 NRC 97, 98 99, affd on other grounds, AI.AB 816, 22' NRC 461 (1985). Thus, NEAP has not established an interest within the

[ ' geographical zone'that could be affected by the outcome of the proceeding. See f Dalryland Power Cooperative (I.aCrosse Boiling Water Reactor), ALAB-497,8 NRC r 312, 313 (1978); Virginia Electric and Power Co.~ (North Anna' Nuclear Power

(

Station, Units 1 and 2), ALAB 522,9 NRC 54,55 56 (1979); Northern States Power -

Co.. (Prairie Island Nuclear Generating Plant, Units .1 and 2), ALAB 107,6 AEC

,' 188,192 93 (1973), affd CLI 7312, 6 AEC 241~(1973), affd sub nom. EPI v. AEC, 502 F. 2d 424 (D.C. Cir.1974); Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB 125, 6 AEC 371,372 n.6 (1973).

An organization's asserted purposes, regardless of how specific they are, do not serve as a basis for establishing independent organizational standing to intervene.' Sierra Club, 405 U.S. at 739-40; Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-536,9 NRC 402,404 (1979); j

. Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station),

ALAB 328,3 NRC 420,421-23 (1976). Sierra Club requires that the party seeking review be itself among the injured. Sierra Club, 405 U.S. at 735. As the Supreme Court stated:  !

[I]f a "special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization, however small or short-lived.

. . . Id. at 739. The type of interest asserted by Petitioner is not a proper organizational interest on which to base organizational standing.

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., 19

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The Ucensing Board properly determined that NEAP' ha'd not met the standards for organizational standing in its own right. The Appeal Board should affirm the denial.of independent organizational standing for NEAP.

B. The Ucensing Board Properly Denied NEAP Representational Standing " '

'n- Through Its Members. 1 NEAP argues that it. was improperly. denied representational standing through its members. Appellant's Brief at 44. Appellant actually asserts-three separate claims under this issue: (1) that the Ucensing Board improperly denied- i NEAP representational standing to intervene by applying the indicia of member--

o ship standard, (2) that the Ucensing Board improperly evaluated the. documents ,

j of NEAP members offered to support NEAP's standing claims, and (3) that the Ucensing Board did not properly evaluate whether Mr. Saporito's research activities, conducted as a NEAP officer, gave him sufficient contacts with the 1

Turkey Point Plant on'which to base personal standing.F Appellant's Brief at 44 53. For the reasons set forth below,' Appellant has not set forth facts which L

B support results other than those reached by the Ucensing Board on these issues.

1. The Licensing Board Was Correct in Applying the Indicia of Membership Standard in Determining Whether NEAP Had Demonstrated Representa-tional Standing, '

The Supreme Court has held that an organization may establish standing to L

intervene by asserting an injury in fact to the interests of a member that it has the authority to represent. Warth v. Seldin, 422 U.S. at 511; see also Allens Creek, U While Appellant does not explicitly articulate this point as a distinct issue on appeal, the Staff will address them in this appeal brief. But see Ucensee's Brief at 15.

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ALAB-535, 9 NRC at 390. An organization must have_ a real stake in. the .

s t outcome of a proceeding, and show an injury in fact within the zone of interest protected by; the Atomic Energy Act of 1954, as amended, or the National Emironmental Policy Act. Febble Springs, CLI 76 27,4 NRC at 613-14. While an

- organization may represent the interest of its own members, the Commission's , i regulations do not permit an organization to represent the interest of persons who are not members. 10 C.F.R. I 2.713(b); St. Lucie, CLI 89-21, 30 NRC at 329. 1 The Supreme Court has held that an organization may gain standing solely as a representative of its members (1) if a member would otherwise have standing to sue in his own right; (2) the interests the organization seek, to protect are germane to its. purpose; and (3) where the relief requested does not require the participation of the individual member in the litigation. Hunt v. Washington Apple Advertising Commission,432 U.S. 333,343 (1977).

In Hunt, the Supreme Court considered.whether the Washington Apple-Advertising Commission was the type of organization covered by the representa-tional standing doctrine. The Supreme Court found that the following factors were important in deciding this question: (1) the nature and purpose of the organiza- ,

tion, and (2) whether 'the organization had members. Hunt,432 U.S. at 344. The Court determined that the indicia of membership were present; the apple growers i and dealers elect the Board of the Commission, only they may serve on the Board, and they finance its activities. Id. Members should exercise a substantial measure of power or control over the organization to which they belong. Id.

I

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. In ' Health' Research Group v. Kennedy, 82 F.R.D. 21 (D.D.C.1979), the District Court' for the District of Columbia relied on the discussion of the a

importance of the indicia of membership in Hunt to determine that members who are merely financial contributors cannot provide an organization with the ability to establish representational standing. 82 F.R.D. at 26 27. The court required more than a showing of injury in fact to establish representational standing; i following Wanh v. Seldin, injury to an-actual member (in the Hunt sense) of an t association is required. Id. at 25. The court stated:

But if the existence of a' cognizable injury, in and of itself, were .

sufficient to satisfy the Article III requirements, then any association

, .or, for that matter, any individual, could gain standing simply by

-presenting the court with the case or controversy of any unrelated l third party. Surely, something more is required and must be found in the special3elationship between an association and its members. 1 Id. The Court in Heulth Research found that the special relationship or nexus

~

.between the. injured member and the associational plaintiff is provided by " actual

~

membership or its functional equimlent measured in terms of control" over the 3

organization. Id. at 26 27. ~ As the court noted, unless an organization truly represents an injured member, the organization would be the same as an environmental organization with a generalized interest. Id. at 27; see also Sierra .

. Club,405 U.S. at 736. A generalized interest is not adequate to confer standing on an organization. Sierra Club,405 U.S. at 739.

Other federal courts have addressed the indicia of membership issue and  ;

have applied the criteria defined in Hunt and Health Research. In Clonlara, Inc.

.' v. Runkel, 722 F. Supp. 1442 (E.D. Mich.1989), the denial of representational standing for an educational organization was upheld by the court because the y

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parents from whom the organization sought to derive standing exerted no control '

l

-or influence over it. Id. at 1451. The court found that parents who purchased an

]

educational program from the educatio'nal c' anization did not elect the board of directors, that the board was not limited to members, and the parents did not

' finance the organization's activities; the parents merely paid a fee for a service.- .

Id. In Sierra Club v. Aluminum Company ofAmerica,585 F. Supp. 842 (N.D.N.Y.

1984), on the other hand, the court found that'the Sierra Club members had 1

effective control over the organization through their voting rights and the payment; j l H of dues; the indicia of membership defined in Hunt and Health Research,' had been -

met by the Sierra Club members. Id. at 851.

Appellant characterizes Sierra Club v. Aluminum Company of America as

" disapproving a hyper technical reading of organizational standing requirements between ' members' or ' contributors' or ' supporters.'" Appellant's Brief at 46.

Appellant misconstrues the Court's discussion of standing in this case. The Court

'in Sierra Club v. Aluminum Company of America refers to the *bypertechnical.

reading" of the standing requirements under the Federal Water Pollution Control

' A ct. 585 F. Supp. 845. The court did not disapprove a distinction between 1 members of an organization and its supporters and contributors. See Id. Actually, the court approved the distinction between members and supporters or contributors and applied it to the facts. Sierra Club v. Aluminum Company ofAmerica,585 F.

- Supp. at 85152.; see Appellant's Brief at 46. '

In the principal NRC case discussing this issue, the Staff and the licensees argued that the Union of Concerned Scientists (UCS) could not derive representa-

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IO tional standing from sponsors of the organization. Consolidated Edison Co. ofNew ,

Y x . York (Indian Point Unit No. 2) and Po,ver Authority of the State of New York y (Indian Point Unit No. 3), LBP 82-25,15 NRC 715,728 36 (1982). The Licensing l Board found that in the circumstances of an organization such as UCS, sponsou ,

t were the functional equivalent'of members where the organization has a clearly' .;

(

f defined purpose "which is germane to the proceeding." Id. at 736. This issue has not been directly addressed by another Commission adjudicatory body. Therefore,

~

the Appeal Board should follow federal precedent.

2. The Licensing Board Properly Evaluated the Documents Offered by NEAP Members to Support NEAP's Standing Claims.

L - Appellant insists that NEAP should be granted representational standing on G the basis of its members. Representational standing is dependent upon a showing I by:the organizational petitioner that: (1)'its membership exerts. control and

-influence over the organization as contemplated by Hunt and Health Research; (2)-

at.least one member has individual standing to intervene; (3) the member has suffered- or will suffer a cognizable injury in fact as a consequence of the . 7 challenged action; and (4) the member has authorized the organization to I

. represent him or her in the proceeding. Appellant has failed to satisfy these criteria.

In its response to the Licensing Board's Order of April 24,1990, Appellant - I NEAP presented the relevant sections of its by-laws. According to the NEAP by-  ?

laws, membership in NEAP entitles members to receive information and a

, newsletter. " NEAP's Response to ASLB's Memorandum and Order" at 3 (May 5, 1990). Members are not provided voting rights unless authorized by NEAP's

+ .

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- ,C Board of Directors.- Id. NEAP members may be required to pay dues and ther Board of Directors may set the amount. id. The by laws do not indicate the way I in which ~ directors are chosen or _ whether they must bel NEAP members.

Furthermore, the type of voting rights that might be "otherwise authorized by the ,

Board" is not described in the by laws.

The Licensing Board ordered that the member chosen by NEAP as the basis for its standing should outline his or her understanding of the privileges of 1

S NEAP membership and the nature of his or her participation in the organization.

l Memorandum- and Order (Motion to Withdraw) at 8 9 - (April 24, 1990)

(unpublished). The Brezenoff at' davit provided by NEAP does not demonstrate.

L her knowledge of the privileges of membership or the nature of her participation -

L I l m NEAP. As a member of NEAP, Ms. Brezenoff does not appear to have any )

input into the management of the organization's activities. Appellant has not filed h any documents which indicated that other NEAP members' involvement with the l L organization differ from that of Ms. Brezenoff.

L l The affiant,-Ms. Brezenoff, has the required personal standing to intervene, l and she apparently has authorized NEAP to. represent her interests in this l proceeding.F The interests the affiant seeks to have protected are germane to L the purpose of NEAP as set forth in NEAP's previous pleadings before the  ;

Licensing Board. However, the information provided by NEAP both in the-L F The Brezenoff affidavit and supporting documents submitted by NEAP do not

)

,. make clear whether the affiant became a member of NEAP as an individual or i

. whether she sought membership in NEAP on behalf of her organization, Quad City Citizens for Nuclear Arms Control.

I L

, 25 -

Brezenoff affidavit ~ and in its previous pleadings compels a determination that NEAP is not a traditional membership organization of the type contemplated by -

the Courts in Hunt, Health Research, Clontara, and Sierra Club v. Aluminum Company of America. Thus, Ms. Brezenoff's standing is of no avail to NEAP. ,

NEAP was granted an express opportunity to address the applicability of the holding in Health Research to NEAP, but failed to do so. Therefore, NEAP is not entitled to representational standing.

When an organization seeks to establish that it has standing to intervene through the interest of its members, it must provide the name and address of at least one affected member who wishes to be represented by the organization.

Allens Creek, ALAB-535, 9 NRC at 396-400. An affidavit should be submitted which indicates that the member wants the organization to serve his or her interests in a representative. capacity. South Carolina Electric and Gas Co., et al.

(Virgil Summer Nuclear Station,'. Unit 1), ALAB-642,13 NRC 881, 884 (1981);

Duquesne Light Co. (Beaver Valley Power Station, Unit 2), LBP-84-6,19 NRC 393, 410-411 (1984). A party challenging an organization's standing should be provided an affidavit in order to determine whether the persons on whom a claim of organizational standing is based are in fact members of the organization. On the other hand, an organization has standing to intervene when its petition is signed by an- officer of the organization who has the requisite personal interest for intervention. Duke Power Co. (Amendment to Materials License SNM-1773--

Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146,151 (1979).

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- 26 NEAP also offered the names and addressees of other ' persons to support -

itsLclaim of representational standing.W " Request for Hearing and Petition for

1. cave to Intervene" at 2 (December 5,1989); Amended Petition at 17. Statements from these persons were also provided by NEAP; however, the statements did not -

establish, for a NEAP member, the requisite protected interest and injury in fact.

J The Staff suggested that NEAP provide an affidavit which was (1) executed by a NEAP member, (2) demonstrated the requisite standing of the member, and _(3) authorized NEAP 'to represent the member in this proceeding. "NRC. Staff Response to Request for Hearing and Petition for I. eave to Intervene of Nuclear .

Energy Accountability Project and Thomas J. Saporito, Jr." at 8 9 (January 16, 1990); "NRC Staff Response to Petitioners' Amended Petition for I. eave to Intervene" at 910 (March 19,1990).W Appellant believes that the Licensing Board improperly required NEAP to provide a statement from a member authorizing NEAP to represent him or her;.

NEAP claims representational authorization should be presumed for NEAP.

Appellant . contends that Allens Creek. stands - for the proposition that an organizational petitioner . deriving standing from a member is not required to W The failure of-the NEAP membership to satisfy the indicia of membership

. standards remains a deficiency as to these persons as well as Ms. Brezenoff.

W The Staff believes that NEAP was required to provide affidavits which identify individuals as NEAP members and identify the injury in fact to the individual's interests if NEAP seeks to establish organizational standing through its members.

The Staff position on this issue did not change even after it conceded that NEAP derived representational standing from the personal standing 'of Mr. -Saporito.

NRC Staff Response to Petitioners' Amended Petition for I. eave to Intervene" at 910 (March 19,1990).

+. .

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27 ' .

..s j obtain specific - representational authorization from a member, where the organization's primary or sole purpose is to oppose nuclear power in general or- 4

\

the facility in question. Appellant's Brief at 47-48; but see Allens Creek,' ALAB- i

, . J 535, 9 NRC at 396. . .i The Appeal Board in Allens Creek held that not all organizations would be required to set forth a specific representational authorization from a member with personal standing. Allens Creek, ALAB 535,9 NRC at 396. The Appeal Board I 1

stated "in some instances the authorization might be presumed" where petitioner-l 1

organization was the established purpose of opposing nuclear power. Id.; see also Indian Point, LBP-82 25,15 NRC at 734. ("Here, the organizational objectives of UCS in regard to nuclear power are clearly defined and well advertised; there can I be little doubt that it -is a desire to support the pursuit of those goals that  !

-1

- motivates the financial participation of the UCS~ sponsors.") I NEAP is not an organization with well known and ' longstanding objectives.  :

' NEAP is a small, recently formed,' local organization whose purposes are not - i known to the general public. -For these reasons, it was proper for the Licensing Board'to require that NEAP demonstrate that it was authorized to represent the interests of its members. y Appellant also asserts that NEAP should not have been required to prodace

- affidavits authorizing representational standing, pointing to Indian Point for support of its proposition. Appellant's Brief at 48. In Indian Point, UCS was not required i to produce an affidavit authorizing representation of members' interests by the organization because the Licensing Board " presumed" the authorization based on i

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~ UCS's reputation. hufian Point, LBP 82 25,15 NRC at 734 35; see also Allens Creek AI.AB 535,9 NRC at 396. The Licensing Board did not hold that requiring an affidavit to establish representational authorization is prohibited in Commission proceedings, only that it was not required by the facts of Indian Point. Indian Point, LBP 82-25,15 NRC at 734 35. NEAP has not presented evidence which:

would have permitted the Licensing Board in this proceeding to presume an.

- authorization to represent.

, 3. The- Licensing Board Properly Determined that NEAP Did Not Derive Organizational Standing Based on Mr. Saporito's Duties As a NEAP Officer In addressing Appellant's third point it is necessary to consider the standards

for personal standing. - A petitioner in a Commission proceeding must show that the challenged action will cause an injury in fact, and that the injury is within the -

zone of interest protected by the Atomic Energy Act of 1954, as amended or the National lEmironmental Policy Act. Pebble Springs, CLI-76 27,4 NRC at 61314;

- Virginia Electric and Power Co.- (North Anna Nuclear Power Station, Units 1 and

' 2),-.ALAB 342,-4 NRC 98,103 n.6 (1976). A petitioner must demonstrate (1) that he personally suffered or will suffer a distinct and palpable harm that constitutes an injury in fact, (2) that the injury can be traced to the challenged action, and (3) that the injury is likely to be remedied by a favorable decision. Dellums, 863 F.2d at 971; see Nuclear Engineering, ALAB 473, 7 NRC at 743. In addition, a petitioner must also have a real stake in the outcome of the proceeding to establish injury in fact. Houston Lighting and Power Co. (South Texas Project,

=+ Units 1 and 2), ALAB 549,9 NRC 644,646 n.8 (1979); Cincinnati Gas & Electric Co. (Zimmer Nuclear Power Station), ALAB-305,3 NRC 8,12 (1975).

v ,

N

-. 4 An alleged injury to the health and safety of a petitioner residing near a-

~

reactor has been found' to be sufficient to establish standing to intervene in Commission. proceedings. Nonh Anna, ALAB 522, 9 NRC 54, 55 56 (1979);

)

Philadelphia Electric Co. (Limerick Generating Station,. Units 1 and 2), LBP 82 3 43A,15 NRC 1423,1434-35 (1982).- A petitioner may' base standing upon. a i

showing that his or her residence is within the geographical zone whi:h could be l affected by a nuclear accident. Waterford, ALAB-125, 6 AEC at 372 n.6.

Although no specific distance from a nuclear power plant has evalved from Commission decisions to define the outer boundary .of the

" geographic zone of interest," distances of up to approximate'y. 50 miles have been found not to be so great as to preclude a finding of standing based on residence.

Te. ras Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-7918, 9 NRC 728,730 (1979); see also Tennessee Valley Authority (Watts Bar Nuclear Plant,' Units 1 and 2), ALAB-413, 5 NRC 1418,1421 n.4 (1977).

Residence within a 50 mile radius of a nuclear power plant is not always sufficient to establish standing to intervene. St. Lucie, CLI 89 21,30 NRC at 329; Pilgrim, j LBP-85 24, 22 NRC at 98 99, affd. on other grounds, ALAB 816, 22 NRC 461 l

. (1985). The nature of the proceeding will be considered by a Board in a determination of standing to intervene and a Board will apply a different standard  ;

in proceedings which involve construction permits and operating licenses, than in I license' amendment proceedings. Id.

Appellant contends that the Ucensing Board did not fully consider their 1 claim that Mr. Saporito's research activities performed in his capacity as a NEAP officer established sufficient connection within the geographical zone of interest to t

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f ' support ' individual standing. ; Appellant's Brief at 44, 52. As a corollary to this I 3 argument,= Appellant claims that the . Staff and the Board focused too much attention on Mr. Saporito's standing based on his ATI employment. Id. at 52.

The Staff and the Licensing Board addressed Mr. Saporito's. claim of indiddual

&' standing through his employment because the claim was supported by allegations c in Appellant's amended petition. See Amended Petition at 10.

- The Staff has contended throughout this proceeding that Mr. Saporito's ' i alleged NEAP activities do not result in regularized contact with the Turkey Point -

E L

~

zone of interest sufficient to establish standing. See "NRC Staff Resporse to

. Request for_ Hearing and Petition for Leave to Intervene of Nuclear Energy J Accountability Project an'd Thomas J. Saporito' Jr" at 7 9 -(January 16, 1990);

" Staff Response to Petitioners' Amended Petition for 1. cave to Inteivene" at 8 (March 19,1990). Although the deficiencies in Appellant's pleadings were pointed'- l out,:information allowing for a different conclusion was not forthcoming from j Appellant. See Id. ~'On the basis of the facts pleaded by Appellant, the Licensing Board properly determined that Mr. Saporito's activities as a NEAP official did not support a claim of individual standing.W Appellant hasinot. presented evidence which supports its claims that the J Licensing Board improperly denied NEAP representational standing through either -

Mr. Saporito or NEAP's alleged members or by applying the indicia of C

• F More recently, the Licensing Board has rejected Mr. Saporito's job-seeking l activity in the Miami area as a basis for individual standing. Turkey Point, LBP 90-24, 32 NRC at 14.

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06 . membership standard. Thus, the Appeal Board should affirm the Licensing Board determinations.1 C.; The Licensing Board Properly Denied NEAP's Request for Discretionary Standing to Intervene. J Appellant challenges the Licensing Board's decision denying it discretionary standing to: intervene-in this proceeding.W NEAP argues that the technical expertise of NEAP's proffered witness and the absence of other parties to advance

-V the' issues raised by NEAP support discretionary intervention. The Licensing IBoard properly evaluated the Appellant's argument for discretionary intervention e and properly denied the request.

u j The Commission has held that where a petitioner is not entithd to 1 l

a

-intervention as a matter of right,it may nonetheless seek intervention as a matter L of discretion. Pebble Springs, CL176-27,4 NRC at 614. A licensing board, in its i

discretion, may allow a petitioner to intervene where the petitioner has shown that it will make some contribution to the proceeding. Id. Where a petitioner is able i to offer expert testimony, a licensing board is more likely to determine that the.

O W Appellant asserts that the Licensing Board erred in denying both Mr. Saporito-and NEAP discretionary standing to intervene. Appellant's Brief_ at 55.

Mr. Saporito's motion to withdraw as an individual petitioner from this proceeding i was granted and he was dismissed by the Licensing Board. Turkey Point, LBP-90-24, 32 NRC at 13 n.1,19 n.22; Turkey Point, LBP-90-16, 31 NRC at 514; see.

also " Notice of Withdrawal from Proceeding" (April 1,1990). Because of his voluntary withdrawal,-Appellant cannot complain at this point in the proceeding- ,

that the Board did not grant Mr. Saporito discretionary standing. The Appeal

.. Board has stated that "[p]arties may not dart in and out of proceedings on their own terms and at their own convenience and still expect to enjoy the benefits of full participation without the responsibilities." Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691,16 NRC 897, 907 (1982); see also Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB 845,24 NRC 220, 252 (1986).

i

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. 1 petitioner is.able to contribute to the proceeding. However, when a petitioneri

, a i.

offers no technical expertise, discretionary intervention is often denied. See, e.g.,

4 ,

Nuclear Engineering Co., ALAB-473, 7 NRC at 740-41, 744; Tennessee - Valley y

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

23(1977); Public Service Co. of Oklahoma, Associaled Electric Cooperative,2nc.,

i Western Farmers Cooperative, Inc. (Black Fox Units & 2), ALAB-397,-

5 NRC 1143,1150 (1977); Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB 363,4 NRC 631,632 33 (1976).

Licensing boards may rely on the factors listed in 10 C.F.R. 5 2.714(a) and l , -(d); the ' decision to grant. discretionary intervention should, however, be done on lL a case by case basis. Pebble Springs, CLI-76 27,4. NRC at 617. The Commission ,

in Pebble Springs set out the six factors:

,, (a) Weighing in favor of allowing intervention-L (1) The extent . to which the petitioner's y participation may reasonably be expected y to assist in developing a sound record.

L The nature and extent of the petitioner's IL (2) l- property, financial, or other interest in the p proceeding.

D ,

(3) The possible effect of any order which i may be entered in the proceeding on the i petitioner's interest. 'l (b) Weighm, g agamst allowing _ intervention-(4) The availability of other means whereby.

L petitioner's interest will be protected.

(5) The extent to which the petitioner's. l I

interests will be represented by existing parties.

(6) The extent to which petitioner's I participation will in appropriately broaden or delay the proceeding. l Id. at 616. \

l i

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Here, the Licensing. Board pointed out that the principal evidence offered -

by NEAP to demonstrate that it could make a valuable contribtition to the record in this proceeding was the " Affidavit of Thomas J. Saporito, Jr."W - 7brkey Point, LBP-90 24,32 NRC at 16. The Licensing Board noted that Mr. Saporito was the -

i e . only expert witness proffered by NEAP. Id. The Appellant argues that the 1

- technical background of its witness supports permissive standing. However, on the

- basis of Mr. Saporito's affidavit and his demeanor and presentation of technical l

' issues at the prehearing- conference, Mr. Saporito was found -to bring little -

technical expertise to the discussion of the technical issues in this proceeding. Id. j The Licensing Board concluded that NEAP's contribution to the record was 1

- insufficient to entitle it to permissive or discretionarf intervention. In particular )

- the Board stated:

NEAP has not brought to bear any substantial expertise to demonstrate the-importance and immediacy of its concerns or to -l justify the necessity of considering them. . Because of the way in which the case has been presented, it has been left to the Board to analyze the record and use its own expertise to determine the importance of NEAP's concerns.

Id. at 17. The other factors for discretionary intervention set forth in Pebble Springs were considered by the Licensing Board. Id. at 17 n.16. The first factor was found to weigh only moderately in Appellant's favor. -Id. The second and third factors did not weigh in favor of Appellant's admission and factors four through six had little positive weight for the Appellant. Id.

W~ Attachment to " Petitioners (sic) Amended Petition for Intervention and Brief in Support Thereof" (March 5,1990).

a.

..___1 _ _ _ _ _ _ . _. ________ . _ _ _ _ _ _ . - _ _ - _ . - - _ - -

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'{ Appellant also contends that discretionary intervention should have been '

granted to NEAP because the five contentions admitted by the Ucensing Board

, would receive no further consideration. ' Appellant Brief at 56.W On the basis ,

of the Staff's responses, the Licensing Board concluded that no serious safety - i k questions with respect to Contentions 11,14, and 30 remained. Memorandum and -

Order (Consideration of Possible Sua Sponte Issues) at 19 (September 25,1990),

e The Board also concluded "that there is no significant environmental question v

raised in the case." Id. In the interests of thoroughness, the Licensing Board ,

requested that the Advisory Committee on Reactor Safeguards (ACRS) consider whether or not the issues raised in the contentions required further investigation. ,

Id. at 21.8 - NEAP's assertion that the contentions raise significant safety issues l r-w which will not receive adequate consideration without its intervention is without I

support.

~

L An appeal board may reverse a licensing board's grant of discretionary -

i; intervention only when it determines that the licensing board had abused its discretion. See Black Fox, ALAB 397, 5 NRC at 1149. The Licensing Board j l-l' W- The Licensing Board deferred litigation of the two environmental contentions-pending the Board's determination of whether admitted contentions 11,14 and 30.

, establish that the modification to the technical specifications is a major federal-action. .See Turkey Point, LBP-90-16, 31 NRC at 538-39. The Licensing Board

( requested that the Staff advise the Board whether admitted contentions 11,14, and 30 raised issues requiring admission by the Board as sua sponte issues. Tierkey 1 Point, LBP 90-24, 32 NRC at 18; see also "NRC Staffs Response to Licensing Board's Order of July 17,1990" (August 31,1990). i

• W The ACRS advised the Licensing Board and the NRC Staff that it has declined any further review of the issues raised in this proceeding. " Letter of R.F. Fraley ,

to P.B. Bloch" (October 15,1990); see supra at note 6.

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y .: 35 - t reviewed and evaluated the evidence set forth by NEAP in support of discretionary -

, Lintervention, and the rationale underlying the Licensing Board's determination was provided. NEAP has not proffered other technical witnesses. The Licensing

-Board was in the best position to make the determination on whether to grant" '

discretionary intervention to NEAP. Appellant has not presented any arguments on appeal which could lead the Appeal Board to conclude that the Licensing Board abused its discretion in denying the request for discretionary intervention.

The Licensing Board's decision on this matter should be upheld, s

D. "

The Licensing Board Was Correct in Denying NEAP Further Opportunity; to Provide New Support for Its Clairns of Representational Standing.

. An issue that arises in each of the Appellant's stated issues on appeal is ~ i that the Licensing Board improperly denied the Appellant-an additional oppor .

l tunity to present facts to support its standing claims.

In addition, Appellant j

' incorrectly attempts to shift the burden of producing facts to support a petition to

'h intervene on the parties, as well as the Licensing Board. Both of these arguments are without merit.  ;

_ 1. ' NEAP Was Provided with the Necessary Time to Plead Standing e

s

~ Appellant asserts that a more careful review of NEAP's purposes and goals -

by the Licensing Board would have demonstrated that NEAP has a specialized organizational purpose which entitles it to independent standing as an organization.

Appellant's Brief at 4L Aside from the fact that the Appellant misstates the il applicable standing requirement, the suggestion that NEAP should be allowed an additional opportunity to set forth information which has been under its control throughout this proceeding is without merit. The Commission's regulations

, s j .

L. a

.- , governing intervention do not allow a petitioner an~ endless period'for setting out facts supporting standing claims. See 10 C.F.R. I 2.714(a)(1) and (3).E In the 1present case, the Licensing Board afforded Appellant numerous opportunities to )

supplement the facts in its petition to intervene and provided specific guidelines '

on correcting-- pleading deficiencies.

Memorandum- and Order (Motion to -

Withdraw) at 8-10 (April 24,1990) (unpublished).

Appellant complains that " NEAP was not permitted to present additional-1 information to describe members' interests .or to establish their ' indicia of membership.'" . Appellant's Brief at 49. In fact, Appellant provided additional information to support its, standing claims on two occasions. " NEAP's Response to ASLB's Memorandum and Order" (May 5,1990); " Response to Nuclear Energy Accountability Project and Thomas J. Saporito to Florida Power and Light's Motion for Reconsideration and Dismissal of Petition to Intervene" (July 10,1990).-

The -Licensing Board placed the Appellant on notice that it would evaluate the-E standing issue on the basis of. contemporary judicial ' concepts, in'particular the U 10 C.F.R. f 2.714(a)(3) states:

Any person who has filed a petition for leave to intervene or who has been admitted as a party pursuant to this section may amend his petition for leave to intervene. A petition may be amended without prior approval of the presiding officer at any time up to fifteen (15) days prior- to the holding of the special prehearing conference

pursuant to i 2.751a, or where no special prehearing conference is held,- fifteen (15) days prior to the holding of the first prehearing  ;

conference. After this time a petition may be amended only with

., approval of the presiding officer, based on a balancing of the factors specified-in paragraph (a)(1) of this section. Such an amended 4

petition for leave to intervene must satisfy the requirements of this paragraph (a) of this section pertaining to specificity.

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concept of indicia of membership as set forth in Hunt and Health 'Research.

Memorandum and Order (Motion to Withdraw) at 810 (April 24, .1990)

(unpublished). What is at issue here is not whether Appellant should be given an additional opportunity to perfect their pleadings; it should not. The issue is :

whether the information provided to support Appellant's claims of representational

- standing was sufficient; as the Staff discussed in Section III.B, the information was ,

deficient for that purpose. Appellant's assertion that it was improperly denied an opportunity to amended its petition to intervene is without merit.E' - '

2. Appellant Is Obligated to Be Familiar with and Comply with the Commission's Regulations and its Pleadings.Will Not Be Given Deference '

by a Licensing Board Appellant also claims that the Licensing Board failed to provide " NEAP a

- true opportunity to supply additional information once it obtained counsel."

Appellant's Brief at 52; see also Appellant's Brief at 2,18, 20, 23, 28, 40. NEAP does not provide citations to case law or to Commission regulations that support l . its proposition that a pro se intervenor should be provided an, opportunity to L relitigate its case when counsel is obtained. In fact, precedent is to the contrary.

l The Commission has held that parties must live with the consequences of their litigation choices. Commonwealth Edison Co. (Braidwood Nuclear Power Station,.

Units 1 and .2), CI186-8, 23 NRC 241, 245 (1986); Boston Edison Co. (Pilgrim 4- W In its discussion of discretionary standing to intervene Appellant asserts that Mr. Saporito should be given another opportunity to request discretionary standing. ,

.j Appellant's Brief at 53. As the Staff pointed out in Section III.C, Mr. Saporito is

- no longer a party to this proceeding due to his voluntary withdrawal, and thus is

.not ent t eil d to pursue discretionary intervention in this proceeding. See supra at note 2.

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[ - N'uclear Power _ Station), ALAB 816, 22 NRC 461, 468 (1985); see also Cleveland;  ;

Electric lliuminating Co., et al. (Perry Nuclear Power Plant, Units I and 2), ALAB -

802, 21 NRC 490, 498 (1985); Metropolitan Edison Co., et al. (Three Mile Island 4-:

Nuclear Station,' Unit 1),; ALAB-772,19 NRC 1193,1246 (1984). '

A , .Moreover, pro se intervenors and lay representatives are held to the same standards of compliance with the legal requirements in a Commission proceeding t

as are lawyers. Pennsylvania Power and Light Co. and Allegheny Electric Cooperative, Inc.. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-t 693,:16 NRC 952,956-57 (1982)t Public Service Electric & Gas Co. (Salem Nuclear, Generating Station, Units 1 and 2), ALAB-650,14 NRC 43,44,49-50 (1981). The )

right of participation accorded pro se intervenors and lay representatives brmgs t L with it a corresponding duty to comply with and be bound by the same agency l

- procedures , as all other parties, even where limited resources are a factor,

. Statement of Policy on Conduct of Licensing Proceedings, CL181-8,13 NRC 452, ,

/

l 454 (1981); Metropolitan Edison Co., et al. (Three Mile Island Nuclear Station, Unit 1), ALAB 772,19 NRC 1193,1247 (1984), rev'd in part on othergrounds, CLI -

85 2,21 NRC 282 (1985).12y representatives and pro se intervenors are obligated y ,

to be familiar with the Commissions's regulations governing licensing proceedings.

1 L Pilgrim, ALAB 816,22 NRC at 467-68; Susquehanna, ALAB-693,16 NRC at 956--

57; Salem, ALAB-650,14 NRC at 50; Houston Light and Power Co. (Allens Creek u

Nuclear Generating Station, Unit 1), ALAB 609,12 NRC 172,173 n.1 (1980);

, Penn.sylvania Power and Light Co. and Allegheny Electric Cooperative, Inc.

L

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, , 39

. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB 563,10 NRC 449,450 n.1 -(1979).

The Appellant incorrectly asserts that pleadings filed by pro se intervenors 3 should be given-dsference by Licensing Boards. Appellant's Brief at 40. The '

, - Appeal Board in South Texas stated it is both Congressional and Commission policy that Licensing Boards decide issues on their merits, rather than avoid issues on technicalities not in dispute in a proceeding. South Term, ALAB 5.49, 9 NRC at 649 50. Although the lack of pleading niceties should not be the basis for the denial of a petition to intervene, especially where petitioner is a lay representative,1d.; Consumers Power Co. (Palisades Nuclear Plant), LBP-79 20,10 NRC 108,116-17 (1979), the failure of Appellant to provide the information necessary to correct the deficiencies in its petition to intervene in this proceeding, despite repeated invitations to do so by the Licensing Board, cannot be excused as a technicality or a lack of a pleading nicety. The Licensing Board in discussing Mr. Saporito's status as a non lawyer concludedi "[w]hile we have been patient:

and protective of his needs as a non lawyer, he has now had all the protection he can properly be afforded." Turkey Point, LBP 90-24,32 NRC at 15. As discussed above, the question here is not one of whether NEAP has satisfied a particular pliading requirement, but rather whether NEAP has satisfied the Commission's regulations: concerning intervention. Therefore, Appellant's reliance on South

' Term and Palisades is inappropriate.

, Appellam ha failed to allege any facts which demonstrate that the Licensing Board erred in denying Appellant another opportunity to cure the

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deficiencies in its petition to intervene and the amendments to it. The Appeal Board should uphold the Licensing Board's finding in respect to this issue.

' Appellant also- maintains that the standing issues should be relitigated' because the facts supporting standing for NEAP and Mr. Saporito were not fully ;

elicited and discussed by the Staff and the Licensing Board. Appellant's Brief at -

43. 44, 50, 52, Again, Appellant's argument is without merit. The burden of setting out the facts supporting a claim of standing to intervene is on a petitioner;

.the burden to supplement such facts remains on a petitioner, 10 C.F.R. I 2.732;

-Metropolitan Edison Co., et al. (Three Mile Island Nuclear Station, Unit No.1),

CLI 83 25,18 NRC 327,331 (1983). The burden was on the Appellant throughout the proceeding to-plead facts that supported its standing claims; the fact that Appellant acted pro se does not alleviate or lessen this burden. Statement of Policy on Conduct of LicerLsing Proceedings, CLI 81-8,13 NRC at 454; Susquehanna, ALAB 693,16 NRC at 956-57; Susquehanna, ALAB 563,10 NRC at 450 n.1. The Licensing Board properly determined the Appellant's burden to satisfy intervention requirements was unmet. The Appeal Board 'should affirm this determination.

-V, REOUEST TO HOLD ORAL ARGUMENT IN MIAMI

. A. Appellant Has Requested Oral Argument in-Miami. Florida Appellant requested that an oral argument on the issues on appeal be scheduled and that the argument be held in Miami, Florida. " Notice of Appeal"

.s at 2 (July 25,1990). For the reasons set forth below, the Staff submits that i

_ - ____. _.__.__.__. - _ m--- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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Appellant _ has presented no circumstances which support its request for an oral p: . argument in Miami, Florida.~. .

B. . Appellant Has Not Set Forth Persuasive' Arguments for Scheduling Oral Arcument in Miami. Florida It_is within the discretion of the Appeal Board to schedule oral argument. i l10.C.F.R. 66 2.763, 2.785(a); 10 C.F.R. Part 2, Appendix A, IX(e); Philadelphia i

Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24. NRC' 220,253 n.38 (1986); Wisconsin Electric Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB 666,15 NRC 277,280 n.5 (1982). The Atomic Energy Act of 1954, j as amended, does not provide intervenors with the right to oral argument. -

Advanced Nuclear Fuels Corp. .(Import of South? African Enriched Uranium l Hexafloride), CLI 87 9, 26 NRC 109,112 (1987); Florida Power & Light Co. (St.

Lucie Nuclear Power Plant, Unit 1), ALAB-893, 27 NRC 627, 628 n.2-(1988).

-What the Act'does provide is the right, in the case of a license amendment, such as the' one in question here, to request a hearing with respect to that amendment.

'42 U.S.C. s 2239. Appellant has exercised that right in this proceeding.

NEAP has been involved in this proceeding since its inception and has set 7

. 6rth its legal and factual arguments in its pleadings before the Licensing Board  ;

- and the Appeal Board. The administrative record is complete and is before the TAppeal Board with respect to the standing issue. An appellate argument is not the proper place to submit new information or facts, if that is what the Appellant

.s .

- has in mind. _ All the parties have presented their arguments in briefs. And as was stated above, it is not required that participants in a licensing proceeding be

!. given the opportunity for oral argument before an appellate body. 42 U.S.C.

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1 h 6 2239;2dvanced Nuclear Fuels, CLI 87 9, 26 NRC at 112; St. Lucie, ALAB 893, -

27 NRC at 628 n.2.

3 As.a matter of policy, most evidentiary hearings- are conducted in the

_ general vicinity of the site of the facility involved. See Philadelphia Electric Co.

[' (Peach ~ Bottom Atomic Power Station, Units 2 and 3), ALAB 566,10 NRC 527, ,

530 (1979). The Commission has' not routirmly extended this ' policy to the -

selection of a location for conducting oral arguments at either the Appeal Board or the Commission level. Appellate arguments are generally conducted in the

. Commission's' hearing rooms in Bethesda, Maryland. 10 C.F.R. Part 2, Appen-dix A, IX(e).8 1

The only issues on appeal in this proceeding are whether NEAP should be grantedistanding to. intervene as a matter of right or at the discretion of the -l

-Licensing Board. These are not substantive issues which are more suitably the l

=l l

l 1

-l l

l l

l W While not controlling, we would note that in like circumstances a request to o move oral argument to Miami, Florida was denied by the Appeal Board. Florida l Power and Light Co. (Turkey Point Nuclear Plant, Units 3 and 4) (Docket Nos. 50-

.250-OLA-4, 50 251-OLA-4, Pressure / Temperature Limits) at 2 (July 19,1990)

(unpublished). The Appeal Board has held that a request to alter the practice of conducting oral arguments in Bethesda, Maryland should be well-supported by special circumstances. Id.

e I

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subject of' oral argument.W NEAP has not-argued that oral argument on'these issues is necessary for their resolution. Nor has NEAP discussed any unique public interests which would be furthered by conducting the argument in Miami, Florida, rather than Bethesda, Maryland. Appellant merely states that an oral '

argument in Miami would provide "a fair and equitable opportunity to address the issue of standing." " Notice 'of Appeal" at 2 (July 25,1990). Appellant has not demonstrated a sufficient basis for holding oral argument in this proceeding in the Miami area.

In summary, the Appellant has not - set forth persuasive arguments to.

support.its request that the Appeal Board (1) schedule an oral argument-in this case, or (2) abandon its usual practice of conducting oral arguments in Bethesda,

-. Maryland.

C. Appellant's Request for Oral Argument Sh6uld Be Denied For the reasons set forth above, the Staff does not believe it is necessary for she Appeal Board to- hear oral- argument on the issues on appeal in this proceeding. Furthermore, the Appeal Board should not depart from its usual practice of holding oral arguments in Bethesda, Maryland. Therefore, Appellant's request that the- Appeal Board schedule oral argument in Miami, Florida should be denied.

8 A licensing board's decision on standing issues is given deference by the Appeal

>= Board. . The standard for review on rulings of intervention is whether the licensing board's determination was irrational or constituted an abuse of its discretion. See

" Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB 522,9 NRC 54,57 n.5 (1979); Duquesne Light Co. (Beaver Valley Power Station, Unit 1), ALAB-109,6 AEC 243,244 (1973); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC '188,' 194 (1973).

-1

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>j ' ei i~ 44 VI. CONCLUSION .

For the reasons stated above, the' Licensing Board's Order of July 17,1990, dismissing ~ NEAP from the proceeding and denying NEAP discretionary intenention in this proceeding should be affirmed. ,

Respectfully submitted, etniw %D Patricia Jehle .

Counsel for NRC Staff Date'd at Rockville, Maryland this 22nd day of October,1990.

1 1

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1 e-  ;

OM PIIQ UNITED STA'ES OF AMERICA U5NRC l NUCLEAR REGULATORY COMMISSION i BEFORE THE ATOMIC SAFETY AND LICENSING APPEA[9N,g P2 :43 ,

cron or nua w In the Matter of ) Docket Nos. 50d5F M-$)'#

) 50 251 OLA 5

)

FLORIDA POWER AND UGHT ) Technical Specifications l COMPANY Replacement (Turkey Point Plant, Units 3 )  !

and4) l CERTIFICATE OF SERVICE

-I hereby certify that copies of NRC STAFF BRIEF OPPOSING APPELLANTS APPEAL FROM THE UCENSING BOARD'S MEMORANDUM AND ORDER OF JULY 17, 1990" 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 Commission's internal mail system, this 22nd, day of October,1989:

Thomas S. Moore, Chairman

• Howard A. Wilber*

Atomic Safety and Ucensing Appeal Atomic Safety and Ucensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 i G. Paul Bollwerk, III; Esq.* Elizabeth B. Johnson  :

Atomic Safety and Ucensing Appeal Administrative Judge

' Board Oak Ridge National Laboratory U.S. Nuclear Regulatory Commission P.O. Box 2008, Bethel Valley Road Washington, D.C. 20555 Building 3500, Mail Stop 6010 Oak Ridge, TN 37831 Peter B. Bloch, Chairman

• Steven P. Frantz, Esq. (2) -

Administrative Judge Harol6 F. Reis, Esq..

4 c Atomic Safety and Ucensing Newman & Holtzinger .

Board Panel 1615 L St., N.W., Suite 1000 '

7 U.S. Nuclear Regulatory Commission Washington, D.C. 20036 Washington, D.C. 20555 t

r Yk. ,,, . , , , - . - . . - , - - , , --. -- -

I  !

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Dr. George C. Anderson' Atomic Safety and Ucensing Administrative Judge Board Panel (1)'

7719 Ridge Drive, N.E. U.S. Nuclear Regulatory Commission Seattle, WA 98115 Washington, D.C. 20555 John T. Butler, Esq. Adjudicatory File (2) , ,

Steel, Hector & Davis Atomic Safety and Ucensing 4000 Southeast Financial Center Board Miami, FL 331312398 U.S. Nuclear Regulatory Commission  :

Washington, D.C. 20555 Nuclear Energy Accountability Project Atomic Safety and Ucensing ' I Post Office Box 129 Board Palen (5)*

Jupiter, FL 33468 0129 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of the Secretary (2)* Billie Pirner Garde, Esq. ,

U.S. Nuclear Regulatory Commission 500 Two Houston Center Washington, C C. 20555 909 Fannin, Suite 500 Attn: . Docketing & Service Section Houston, TX 77010  :

I Stewart Ebneter Billie Pirner Garde, Esq.

Regional Administrator 103 East College Avenue USNRC, Region II Appleton, WI $4911 101 Marietta St., N.W.

Suite 2900 .

Atlanta, GA 30303

> clu, aA~~1k Patricia Jehle Counsel for NRC Staff O

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