ML20072P946
| ML20072P946 | |
| Person / Time | |
|---|---|
| Site: | Washington Public Power Supply System |
| Issue date: | 03/31/1983 |
| From: | Reynolds N DEBEVOISE & LIBERMAN, WASHINGTON PUBLIC POWER SUPPLY SYSTEM |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8304040424 | |
| Download: ML20072P946 (19) | |
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Applicant 3/31/83 fj D
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p g 55 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE AT'OMIC SAFETY AND LICENSING BOARD In the Matter of
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WASHINGTON PUBLIC POWER
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SUPPLY SYSTEM
) Docket No. 50-460-OL
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(WPPSS Nuclear Project No. 1)
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APPLICANT'S MOTION FOR RECONSIDERATION AND/OR FOR CERTIFICATION TO THE ATOMIC SAFETY AND LICENSING APPEAL BOARD OF MARCH 15, 1983 MEMORANDUM AND ORDER I.
INTRODUCTION On March 15, 1983, the Licensing Board in the cap-tioned proceeding issued a Memorandum and Order in which it addressed a number of issues discussed in the Special l
Prehearing Conference held in Richland, Washington on l
January 26 and 27, 1983.1 One of these issues concerned l
the propriety of issuing a protective order pursuant to which the Coalition for Safe Power (" petitioner") would disclose to the other participants in this proceeding the names and addresses of those individuals upon which peti-
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l tioner's standing to intervene in this proceeding pur-portedly is based.
The Protective Order proscribed the further d'issemination of such information.
l 1
Washington Public Power Supply System (WPPSS Nuclear Project No. 1), ASLBP No. 82-479-OL, March 15, 1983 slip opinion (" March 15, 1983 Memorandum and Order").
8304040424 030331 Q
PDR ADDCK 05000460 s
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. The Washington Public Power Supply System
(" Applicant") hereby seeks reconsideration of that portion of the March 15, 1983 Memorandum and Order granting the Protective Order sought by petitioner.
Applicant submits that the issuance of such Order was without any factual or legal basis.
Accordingly, Applicant urges the Board (1) to reconsider its March 15, 1983 Memorandum and Order granting petitioner's request for a Protective Order.and, (2) to require that petitioner disclose on the public record the names and addresses of those individuals upon whom its standing to participate in this proceeding is purportedly based.
Alternatively, pursuant to 10 C.F.R.
Section.2.718(i), Applicant urges that the Board certify its decision to issue the Protective Order in this pro-ceeding to' the Atomic Sa'fety and Licensing Appeal Board for immediate review.
II.
ISSUANCE OF THE PROTECTIVE ORDER WAS WAS WITHOUT ANY FACTUAL OR LEGAL BASIS Applicant submits that the March 15, 1983 Memorandum and Order of the Licensing Board issuing the Protective Order sought by petitioner was without any factual or legal basis.
First, it improperly relies on unsubstan-tiated allegations made in another proceeding.
- Second, the Memorandum and Order draws a number of factual in -
ferences which are simply not supported on the record and in any event do not justify issuanc'e of the Protective d
4 Order.
Third, the. Memorandum and Order erroneously dis-tinguishes Houston Lighting & Power (Allens Creek Nuclear Generating Station, Unit 1).2 Therefore, Applicant believes that the Protective Order should be withdrawn and that petitioner should be required to identify on the public record the names of those individuals sponsoring its participation in this proceeding.
A.
The March 15, 1983 Memorandum and Order Improperly Relies on Unsubstantiated Allegations Made in Another Proceeding Earlier decisions of both the Appeal Board 3 and
' licensing boards 4 consistently demonstrate the need'for a factual basis on the record to exist before a protective order is issued.
The courts also have emphasized that there must be a " reasonable probability," if not " con-vincing proof," that disclosure of information during J
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2
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9 NRC 377 (1979).
ALAB-535, 3
Virginia Electric & Power Co. (North Anna Nuclear P wer Station, Units 1 and 2), ALAB-555, 10 NRC 23, 27-28 (1979); Allens Creek, ALAB 535, supra, 9 NRC 399-400.
4 Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), LBP-80-11, 11 NRC 477, 479-80 (1980).
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d t < judicial proceedings would deter first amendment activi-ties such that'a protective order or other procedural safeguards should be employed.5 Applicant submits that the March 15, 1983 Memorandum and Order clearly fails to satisfy this requirement.
A linchpin of that Memorandum and Order -- the finding that members of petitioner could fear that they would be subject to " compulsory legal process"6 to defend contentions proposed by petitioner -- rests not on facts established on the record in this proceeding.
Instead, it rests in the first instance upon unsubstantiated allegations made by petitioner in another proceeding.
As explained below, such allegations may not constitute a basis for issuance of a protective order.
The Licensing Board asserted that "[i]t is sufficient that a demonstration has been made that the, rights of association of a member of an intervenor group in this area have been threatened in the form of a threat of com-pulsory legal process to defend contentions."7 According to the Licensing Board, petitioner made this demonstration by showing that another applicant (Puget Sound Power &
Light Co.,
et al.) in another proceeding (Hanford/Skagit) 5 See In re Possible Violations of 18 U.S.C. $5201 and 3 7 1,. 491 F.Supp. 211, 214 n.
3 (D.C.D.C.
1980) 6 March 15, 1983 Memorandum and Order at 11.
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questioned a member of petitioner (not the individual upon which standing is purportedly based in this case) about his ' interests in that proceeding and about the contentions
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raised on his behalf by petitioner.8 If allowed to stand,-this holding would have broa.d ramifications.
The Board will have concluded that a peti-tioner merely needs to recite claims of harassment in an
-earlier proceeding (not even~ involving the applicant in that case) as a basis for a licensing board in a subse-quent proceeding to issue a protective order.
An applicant in one proceeding would be expected to re'spond to' allegations concerning the conduct of others, over which they had no control, in an earlier proceeding to rebut a claim by an opposing party that it was in fact the subject of harassment during such earlier proceeding.
Thus, under the reasoning of the March 15, 1983 Memo-randum and' Order, if a regional or nationcl intervenor l
group sought to participate in an operating license pro-
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ceeding concerning a power reactur located outside of L
Philadelphia, an allegation of harassment in that pro-I ceeding would be probative of the existence vel non of harassmen,t in a subsequent proceeding concerning another power reactor located in southern Uaw Jersey, provided the l
same organization representing individuals with standing t
8
-Id.
at 10-11.
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. to intervene is involved in both proceedings.
As a result, the licensee in the New Jersey proceeding would, in essence, have to defend against an allegation of harassment made in the prior Pennsylvania proceeding.
'At a minimum, this would completely emasculate all concepts of fairness and administrative due process because it is virtually impossible for an applicant in one NRC proceed-ing to defend against allegations of harassment based. upon events that occurred in another NRC proceeding.
As the March 15, 1983 Memorandum and Order demon-strates, that is precisely what has occurred in this case.
Petitioner sought to intervene in the &)nstruction permit proceeding involving Puget' Sound Power & Light's Skagit/
Hanford plant.
The individual upon which petitioner sought to ' rely to establ'ish standing, M.
Terry Dana, was questioned by counsel for the applicant in that proceeding concerning his interest in the proceeding as well as the
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. contentions purportedly raised on his behalf.9 Although this individual claimed to believe that such contact con-stituted harassment,10 it is apparent that during the Skagit/Hanford proceeding nc findings were made to that 9
March 15, 1983, Memorandum and Order at 10-11.
10 Washington Public Power Supply System Nuclear Projects Nos. 1 and 2, Transcript of January 26-27 Special Prehearing Conference ( "Tr. ")
at 44.
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effect.ll Nevertheless, his subjective perception as to that questioning is now being used here as a factual basis to warrant issuance of a Protective Order.
Clearly, an unsubstantiated allegation in another proceeding may not comprise the factual showing required of a participant in an NRC licensing proceeding seeking.the issuance of a protective. order.
Un these grounds alone, the Board should' reconsider its Memorandum and Order.
B.
The Memorandum and Order Draws a Number of Inferences Which Are Not Supported In the Record and Which In Any Event Do Not Support Issuance' of a Protective Order Assuming arguendo that the Memorandum and Order could e
properly rely on the unsubstantiated allegations made by petitioner in connection with the Skagit/Hanford pro-ceeding, Applicant submits that the March 15, 1983 Memo-randum and Order draws a number of inferences which simply are not supported in the record and which in any event do not support issuance of a protective order.
First, the Memorandum and Order states that, "[w]hether intended or not, Mr. Dana (and perhaps other current or prospective members) was put on notice (unwarranted in our opinion) that a sponsorship of this intervention could result in his being compelled to attend the hearing and support his 11 See Applicant's Motion for Leave to Supplement Memorandum, February 17, 1983 attaching pages 36-39 of the May 5, 1982 transcript from the Skagit/Hanford proceeding.
o concerns (i.e., CSP's contentions) about the issues raised."12 As a factual basis for this conclusion, the Board referred to the " questioning" of Mr. Dana in Skagit/
Hanford and to a telephone conversation Mr. Dana had with a representative from the Applicant.
Neither of these events support the inference drawn in the Memorandum and Order that Mr. Dana or others feared that they would be compelled to defend contentions pr.o-posed by petitioner.
Petitioner did not claim and appar-ently has not claimed that Mr. Dana feared such compulsory process.13 Indeed, it is difficult to understand how such a claim could be made in light of his actual experience in Skagit/Hanford.
Mr. Dana apparently never was deposed 1
regarding contentions proposed by petitioner in that pro-ceeding,14 and there is no indication that any obligations were imposed on him by virtue of his sponsorship of peti-
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tioner's intervention.
i Nor does the single telephone corversation by a rep-l l
resentative of the Applicant suggest that Mr. Dana had reason to fear and did in fact fear that he would be i
called upon to defend the contantions proposed by peti-tioner in the construction permit amendment proceedings l
12 I
March 15, 1983 Memorandum and Order at 12.
l 13 See petitioner's " Position on Protective Order --
l February 7, 1983."
14 Tr. at 40.
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involving WNP-1 or.WNP-2, where he sponsored petitioner's intervention.
During this telephone conversation, Mr.
Dana stated from the outset that he was aware of his rights (presumably including that he would not be com-pelled to testify or otherwise directly participate in evidentiary hearings).
Further, the OJpply System repre-sentative stated that he did not intend to harass Mr. Dana or to force Mr. Dana to speak with him.
In addition, the focus of the inquiry was not to secure the withdrawal of Mr. Dana's affidavit authorizing petitioner to reprec 'nt
-his interest's in those proceedings but rather to le'arn of his concerns.15 Applicant submits that under these cir-cumstances no factual inference can be reasonably drawn that this telephone call suggested to Mr. Dana that he would be compelled to defend petitioner's proposed conten-tions.
Importantly, however, the critical question before
.the Board does not concern Mr. Dana alone.
Rather, it concerns as well the other undisclosed members of peti-tioner (specifically those who petitioner alleges are sponsoring its participation in this proceeding) and whether they reasonably can fear compulsory legal process should their activity in this proceeding become known.
15 Affidavit at Gerald C.
Sorensen Regarding Contact with Member of Petitioner Organization at 2, appended to Applicant's February 17, 1983 Motion for Leave to Supplement Memorandum.
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Nothing in the March 15, 1983 Memorandum and Order indi-cates a finding on this critical question.
To the con-trary, that Memorandum and Order equivocates by stating that "[w]hether intended or not, Mr. Dana (and perhaps other current or prospective members) was put on notice (unwarranted in our opinion) that a sponsorship of this intervention could result in his being compelled to attend the hearing and support his concerns (i.e., CSP's con. ten-tions) about the issues raised."16 Applicant submits that there was no basis to infer that Mr. Dana believed he would be forced to defend petitioner's proposed conten-tions in those NRC proceedings in which he sponsored peti-tioner's participation.
Nor did the Memorandum and Order reflect any finding that the other members of petitioner sponsoring its participation feared such compulsory parti-cipation.
Therefore, the March 15, 1983 Memorandum and Order was erroneous when it cited " compulsory legal pro-cess" as a basis for issuance of the Protective Order in this case.
Applicant also submits that the March 15, 1983 Memo-randum and Order erroneously in5 erred that members of petitioner other than Mr. Dana could reasonably fear loss of employinent, or other reprisals, as a result of the sponsorship of petitioner's participation in this 16 March 15, 1983 Memorandum and Order at 12 (emphasis added).
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proceeding.'
Accordingly, it was error to issue the Pro-tective Order on the basis of such an inference.
Based on nothing more than an unsubstentiated assertion of peti-tioner, the March 15,.1983 Memorandum and Order states that Mr. Dana indicated to petitioner that his sponsorship
- of its intervention in Skagit/Hanford " threatened his very employment "17 Taking official notice that the nuclear industry is a major source of employment around WNP-1, the Memorandum and Order then seems to leap to the conclusion
.that the undisclosed individuals upon whom petitioner's standing to intervene is purportedly based could fa'ce similar reprisals.18 Simply stated, the Memorandum and Order transfers Mr.
Dana's unsubstantiated claim of employment discrimination to the undisclosed individuals upon which petitioner's standing to intervene is purportedly based and assumes that reprisals against them are reasonably likely.
However, nothing in the record documents who their em-ployers are or whether in fact those employers would take disciplinary action against these individuals for sponsor-ing petitioner's attempted interv,. tion.
- Moreover, Applicant submits that while the Memorandum and Order could properly take official notice pursuant to 10 C.F.R 17 March 15, 1983 Memorandum and Order at 12.
18 Id. at 13.
. Section 2.743(i) that the nuclear industry is a major source of employment in the vicinity of WNP-1, it does not follow that the individuals upon whom petitioner's stand-ing is purportedly based neceesarily work'for employers which would take disciplinary action for their sponsorship of petitioner's intervention.
Clearly, such fact is not "gcaerally known within [the territory] or capable of accurate and ready determination 'y resort to sources whose accuracy cannot reasonably be questioned."19 Accordingly, the March 15, 1983 Memorandum and Order inferred erroneously that members of petitioner who are sponsoring its participation in-this proceeding could face economic reprisals from their employers.
As a result, a Protective Order could not be issued on the basis of these inferences.
C.
The March 15, 1983 Memorandum and Order Erroneously Distinguishes Allens Creek The March 15, 1983 Memorandum and Order distinguishes Allens Creek on the grounds that the " general situation officially noted by the Appeal Board [in that proceeding],
l an absence of retaliation against critics of.a nuclear plant construction, is no longer valid."20 As support for 19 Fed.
R.
Evid. 201(b).
10 C.F.R. $2.743(i) allows l
licensing boards to take official notice of all matters of which a court may take judicial notice.
20
- r 15, 1983 Memorandum and Order at 9.
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- this proposition, the March 15, 1983 Memorandum and Order references allegations made in three other proceedings involving what was characterized there to be harassment.
However, as even,the Memorandum and Order recognizes, 4
each of thesc cases concerns the allegedly unlawful dis-charge of those employed by either a construction permit holder or its contractors or subcontractors as a reault of an employee making charges to NRC regarding what he believed were defeats in plant construction.21 The claims of harassment in those cases did not involve. alleged f3 r-ings by empl'oyers not involved in the nuclear indus'try.
In the inste.nt case the record does not indicate by whom the undisclosed sponsors of petitioner's participa-tion in this proceeding are employed.
Nor can it be assumed that those employees are NRC construction permit holdere or their contractors or subcontactors.
Therefore, such claims hardly provide any reason to conclude that any
. member of any anti-nuclear group, regardless of his em-ployer, will necessarily face harassment by virtue of his anti-nuclear activities or that overall attitudes towards intervenors have changed since the. issuance of Allens Creek.22 21 Id. at 10.
22 ALAB-535, supra.
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That the March 15, 1983 Memorandum and Order impro-perly distinguishes Allens Creek is also demonstrated by Houston Lighting & Power Company (South Texas Project, Units 1 and 2),23 one'of the proceedings ' involving a claim of unlawful discharge referenced in the Memorandum and Order as a basis'for distinguishing Allens Creek.24' In that proceeding, the Licensing Board held that the pro-cedures established in Allens Creek, viz., issuance of'a protective order upon an adequate factual showing, applied to " whistler-blowers," who are protected by Section 210 of the Energy Reorganization Act, 42 U.S.C. $5851.
There-fore, whether and to what extent allegations of harassment against such employees have been made is no basis to dis-tinguish that Appeal Board decision from the instant pro-l ceeding.
D.
Conclusion l
In light of the foregoing, Applicant respectfully
. urges the Licensing Board to reconsider its March 15),1983 l
Memorandum and Order.
As set forth above, the record does not support issuance of the Protective Order ~ ranted peti-g tioners in this proceeding.
Rather, the Board should i
23 LBP-80-11, 11 NRC 477 (1980).
24 ALAB-535, supra: March 15, 1983 Memorandum and Order at 10.
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ITI. -THE31iICENSING BOARD;SHOULD CBRTIFY
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t h,,e eve,. u.-rit th'at 1tSd5011n'e59..o' reconsiders'its. March '15, 4
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re?iew_of this questi,on Y nece,ssary~,to preventi" detriment
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mer.t such as., in the ; case at bar has b,een prescr_ ib'cd.by; the jf s,>
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P 25 10 C.E.R. '}2.130(f).
Under the NRC Rqleq,of Practice, e, p' arty seeking -certification pursuant to 10 C.F.R.
$ 2.318 mUst establish that a referral under 10 f
C.F.RI(i)$2,730( f) "is proper.
- See, e.g.,
Puerto Rico
' Water Pecource Authority (North Coas* Nucledr Plant,
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Unit i.), ALAD-361, 4 NRC 615-(1976).
Section 2.730( f) provides' t'. hat the presiding 'of fic'er in 'an NRC proceeding may re'fer a ruling to the Commission (and, therefore to the Appeal Board;(10 C.F.R. $2.785) when a prompt decision is necessary "to prevent detriment to the public interest
Appeal Board established that the proponent of a protec-
'tive order'must' establish a factual basis sufficient to justify the issuance of such an order.
The Licensing Board has eviscerated the Appeal Board's teaching in this regard by imposing an unfair and inappropriate burden on the Applicant to rebut a claim of harassment in a proceeding involving other parties and another nuclear plant.
This ruling by the Licensing. Board is capable of repetition but will evade review 26 because it is unlikely'as a practical matter that such a ruling will ever be reviewed, if and when the decision in this
-proceeding is appealed on the merits.
This, of course, presumes that a direct appeal from the Board's Memorandum and Order is proscribed as interlocutory (10 C.F.R. 2. 7 3 0 ( f ) )', a matter tha~t Applicant does not concede.
Therefore, because of the importance of this matter to the public interest, Applicant urges that the ruling in the March 15, 1983 Memorandum and order be certified to the Appeal Board should the Licensing Board decline to recon -
sider such Memorandum and Order.
26 'Sholly v.
U.
S.
Nuclear' Regulatory Commission, 651 F.2d, 780, 784, (D.
C.
Cir. 1980), rehearing denied, 651 F.2d 792.
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IV.
CONCLUSION In light of the foregoing, Applicant. urges that the Board reconsider its issuance of the March 15, 1983 Memo-randum and Order granting petitioner's request for a Pro-tective Order.
Alternatively, Applicant requests that,the Board certify this matter to the Appeal Board pursuant to 10 C.F.R. Section 2.718(i).
Respectfully submitted, b chrGlG/W D1#1h I
Nichol'as S.
Reynol'dg7
- f Sanford L.
Hartman DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.
Washington, D.
C.
20036 202/587-9817 Counsel for Applicant March 31, 1983 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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WASHINGTON PUBLIC POWER
)
Docket No. 50-460-OL SUPPLI SYSTEM
)
)
(WPPSS Nuclear Project No. 1) )
e CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "Appli-cant's Motion for Reconsideration and/or for Certification to the Atomic Safety and Licensing Appeal Board of March 15, 1983 Memorandum and Order," in the captioned matter were served upon the following persons by deposit 'in the United States mail, first class, postage prepaid this 31st day of March, 1983:
Herbert Grossmhn, Esq.
Chairman, Atomic Safety and Chairman,, Atomic Safety and Licensing Appeal Board Licensing Board U.S.'
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Mitzi A. Young, Esq.
Glenn O.
Bright Office of the Executive
-Atomic Safety and Licensing Legal Director i
Board U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission i
i Commission Washington, D.C.
20555 l
Washington, D.C.
20555 Chairman, Atomic Safety and l
Dr. Jerry Harbour Licensing. Board Panel Atomic Safety and Licensing U.S.
Nuclear Regulatory Board Commission
~U.S.
Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 l
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Mr. Eugene Rosolie Mr. Scott W.
Stucky Coalition for Safe Power Docketing & Service Branch Suite 527 U.S.
Nuclear Regulatory 408 South West 2nd Commission Portland, Oregon 97204 Washington, D.C.
20555 Gerald C.
Sorensen Manager of Licensing Washington Public Power Supply System 3000 George Washington Way Richland, Washington 99352 A anfort L.
Hartman ','
.