ML20079D867
| ML20079D867 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 09/05/1990 |
| From: | Saporito T HARDY, MILUTIN & JOHNS, NUCLEAR ENERGY ACCOUNTABILITY PROJECT |
| To: | Garde B Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20079D862 | List: |
| References | |
| 90-602-01-OLA-5, 90-602-1-OLA-5, OLA-5, NUDOCS 9107300116 | |
| Download: ML20079D867 (60) | |
Text
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L*NITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE Tl!E COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of :
FLORIDA POWER AND LIGHT : Docket No. 50-250 OLA-5 COMPANY 50-251 07 5 (Turkey Point Plant, Units 3 and 4) : ASLBP No. 90-602-01-OLA-5 Facility operating License DPR-31 and DPR-41 :
BRIEP POR APPEIJJdfTS NUCLEAR ENERGY ACCOUNTABILITY PROJECT (NEAP)
AND THOMAS J. SAPORITO STATEMENT OF PACTS of concern in this appeal are matters of standing to intervene of a particular organization, in its own right or through one or more of its members, regarding proposed amendments to the technical specifications of a nuclear power plant. Intervention as a matter of discretion for this organization or for one of its members is alsr involved here.
I. Petitien to Intervene and other Initial Matters On June 5, 1989, Flori . Power & Light Co. (FPL or Licensee or Applicant) requested of the Nuc?!ar . gulatory Commission (NRC or_ Commission) license amendments for l'.s Turkey Point nuclear power plant (Units 3 and 4) in D ,de County, Florida, near the town of Homestead, south of Miami (the Plant). The amendments relate to numerous char;ges in Plant 1
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? technical specifications (TS) and related.. documents.
'._The Commission, s on December :5,: 1989,Jissued in'the. Federal
! Register a notice- of the requested action Jand 'an opportunity -i fort- a- hearing (54 Federal Recister 50,295-50,296-- (No. 33)
(December 5, 1989)). On January 2, .1990' (signed December: 27, 1989), the Nuclear Energy Accountability Project (NEAP) and Thomas 'J. Saporito, Jr., filed a timely request for leave to intervene- and-'for a _- hearing concerning these amendment proceedings. The-Petition-was filed cro se by-Mr. Saporito..
The Petition stated that NEAP is a corporation with its #
principal _ place 'of business in Jupiter, Florida. NEAP- is "an environmental organization with specific and primary _ purposes to_ operate for the advancement of the environment and'for other
-educational purposes, by the distribution of its funds for such
-purposes, and particularly for research relative to the environment and the impacts of technology on the environment."
The Petition also alleged that there are NEAP members who e live, work, and vacation in, or otherwise use and enjoy, a geographic area within the immediate vicinity - of the Turkey Point- Plant : (that -is, -within a 50-mile radius! of - the Plant) .
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The Petition also alleged that NEAP and its members "are '
-significantly and adversely affected and otherwise aggrieved-by the license actions" described by the Federal Registe:r -notice.
It alleged--that the_ interests of its members and their. families t
"could be significantly and adversely affected if a ' serious 4
accident' occurred" at the Plant due to its unsafe _ operation.
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. s-The Petition further' alleged that some of HEAP's members who may be af f ected- are Astrid Weinkle, Bill Wilson, Judith
_W hite Edelson, and Shirley Brezenoff. The Petition noted that further information would be supplied as to these members.
As to Mr. Saporito, the Petition stated that he is NEAP Executive Director, works in and about the city of Miami as an ins 2ructor _i n digital electronics and microprocessor technclogy, and regularly travels to Miami "to conduct research ,
in the nuclear field." The Petition stated these activities place Mr. saporito in the zone of interest around the Turkey Point plant "on a regular basis of 5 to 5 days a week."
The Petition further contended that the proposed license-amendments would not provide reascnable assurances that: the plant would operate in conformity with its application or with the general provisions of the Atomic Energy Act, the activities authorized by the amendments could be conducted without endangering public health and safety, the probability of a Plant. accident would not be increased, and the operating margin for the Plant would not be reduced. The Petition stated that even though the license change sought by the Plant is compatible with NRC and industry initiatives to standardize and improve nuclear plant technical specifications "it must be realized that the Turkey Point plants, being a very early vintage were not constructed nor designed with the standards reflected in the more modern nuclear plants."
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Also, the Petition stated that the requested technical specification amendments "would increase the probability and consequences of a major nuclear accident because the Turkey Point plant units are an out-dated design and any relaxation of existing requirements must be based solely on an operating experience germane to nuclear plants of identical design and not generic industry standards." The Petition also charged ,
various Plant inadequacies and past violations (See generally, In the Matter of Florida Power & Licht Co. (Turkey Point Plant, Units 3 and 4), Docket Nos. 50-250 and 50-251, Request for Hearing and Petition for Leave to Intervene, pp. 1-6).
On January 10, 1990, the Licensee filed its answer opposing intervention by NEAP or by Saporito. The Licensee stated the amendments " reflects more than three years of effort by FPL and the NRC Staff to upgrade the Turkey Point technical specifications" and " consist of hundreds of pages of requirements governing operation" of the Plant. In a general description of the amendments, the answer did acknowledge, however, that some of the proposed changes "would relax existing requirements" or would " relocate existing requirements" from the TS to other controlled documents.
The Licensee's answer further stated that " injury-in-fact" standing which requires some "real stake" in the outcome of the agency action did not exist for Mr. Saporito, since he resides 100 miles from the Plant. The Licensee also claimed that other 4
4 statements in the Petition as-to the extent of Mr. Saporito's activities in the " zone'of interest" lacked specificity.
As to NEAP, the Licensee - contended that statements as to its corporate status or the fact that certain members may live, work, or vacation in the area within 50 miles of the Plant are insufficient to establish organizational standing for NEAP on its own. The Licensee also contended that neither can NEAP claim organizational standing based on its organizational purposes, which the Licensee contended were too go'noral to support standing in this specific proceeding.
The Licensee also claimed that statements as to other NEAP members were not sufficient enough to permit NEAP to establish standing based on the af fected interests of one or more of its members. In addition, the Licensee's answer emphasized that there must be a further description of the " membership" and degree of participation and control in the organization with respect to individual members named. To this effect, the Licensee made mention that NEAP by-laws are not on public file and thus there supposedly was no available means to determine the status and nature of general membership in NEAP.
Finally, the Licensee contended that even if the basics of standing were fulfilled, neither NEAP nor any of its stated members can demonstrate that they would be adversely affected by the amendments. In other words, the Petition "does not allege that the proposed changes in the Technical Specifications at Turkey Point will cause such accidents other 5
otherwise adversely affect Petitioners. Furthermore, it is not readily apparent how the proposed changes in the Turkey Point ,
Technical Specifications could affect the inte19sts of the Petitioners, given the fact that most of .the changes are editorial. in nature and do not substantively alter the requirements governing operation" of the Plant. (pp. 17-18).
The Licensee also contended that the scope of the issues raised in the Petition were outside the narrow matters to be considered in a license amendnent proceeding. The Licensee claimed that "an amendment proceeding is not an appropriate fcrum for reexamining previous NRC determinations that are not-affected by the amendment." (p. 19, and see pp. 20-25)
The Licensee's answer requested either that the petition to intervene be denied or that an evidentiary hearing be
' conducted to determine the standing of NEAP, Saporito, or other NEAP members. (See, In the Patter of Florida Power & Licht Co.
(Turkey. Point Plant, Units 3 and 4), Docket Nos. 50-250 and 50-251, Licensee's Answer in opposition to Request for Hearing and Petition for Leave to Intervens, and pages as noted).
An NRC Staff response to the Petition by NEAP and Saporito was' submitted on January 16, 1990. The Staff concluded that NEAP. and Saporito did not meet the standing requirements for intervention.
The Staff described the changes to be made to the Plant's Technical Specifications as being in four general categories:
- 1) non-technical editoria2 and typographical changes intended 6
l
to make the TS easier to use, 2) more stringent specifications which provide " enhanced safety," 3) removal of selected Igiqirencnts 'from the TS and relocatina recuirements into other controlled - documents, and 4) relaxina existina reaufrementu ,
"which, bned upon operating experience, have been shown to provide little or no safety benefit and which place a burden on the licensee." ,
The Stoff concluded, similar to the Licensee's allegations in its own answer to the Petition, that from the language - of the Petition it is not clear "whether Mr. Saporito's contact with the Miami area is sufficient to establish the requis'te ,
intercat te support standing." Particularly, "Mr. Saporito t ,
not established that hiu normal, everyday work activities are conducted at specific locations in the Miami area or in the vicinity of the Turkey Pcint plant."
Visits to the Miami area are not sufficient by themselves, and Mr. Saporito's residence in Jupiter, Florida is too far from-the Plant (100 miles) to support an individual interest.
Thus, the Staff concluded there was insufficient information to show his regular contacts within a 50-mile radius of the Plant.
As to NEAP, the Staff concluded that it could not obtain standing through Executive Director Saporito if Saporito's own standing was not established. NEAP itself, the Staff further concluded, -had not established an interest which could be affected by the license amendment proceeding. The group's
" general claim" that it has an interest in environmental issue 7
is insufficicnt to give it standing.
The Staff also found that there was insufficient information as to the other four NEAP members listed in the Petition (Weinkle, Wilson, Edelson, and Brezenoff). Further, the Staff concluded the Petition's allegations were too general and did not support the requirements of issue specificity and applicability for a claim. Discretionary intervention was not considered. (In the Matter of Florida Power & Licht Co. (Tutkey ,
Point Plant, Units 3 and 4), Docket Nos. 50-250 and 50-251, NRC Staff Response to Request for Hearing and Petition for Leave to Intervene of Nuclear Energy Accountability Project and Thomas J. Saporito, Jr., pp. 4, 6-10).
On February 5, 1990, the Atomic Safety and Licensing Board (the Board) issued a Memorandum and Order. The Board's Order set a prehearing conference date (March 23) and filing schedules. It also suggested that an amended petition be filed by the proposed intervenors so that additional facts may be described permitting a more detailed consideration of the standing to intervene either of Saporito or NEAP, Specifically, the Board stated that the Petitionern should study the Licensee's answer ana the NRC Staff answer and " cure whatever deficiencies exist by amending their Petition." An amended petition was filed in due course. -
The current appeal concerns this Amended Petition and the various issues surrounding it. Petitioners contend that the 1
Board erred in eventually dismissing the Petition to intervene.
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.- 4.__._._.-. _ _ . . _ . . _ . - _.__ _. _ ._ . _ ..._.__.. _ .. _ _ _ _ _ . .
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D Ili Proceedinos on Amended Petition to Intervene
~
on the issue of - intervention both - of NEAP - and Saporito, ,
further information was certain,1y provided by the Amended Petition.for-Intervention and Brief in_-Support Thereof, a 158 -
page document dated March.b, 1990._This Amended Petition was-- ;
also filed pro se-by Mr. Saporito.
The Amended Petition reviewed the standing criteria and the ' status of both HEAP and Saporito. The Amended Petition- <
contended.that the health and safety issues involved and the concerns of ~the -Petitioners: are sufficient to- establish standing.
The ? Amended Petition noted that "the world witnessed the ef f ects -of the Chernobyl - nuclear plant when it exploded an[d)_
dispersed radioactive fission _ products into the- environment i
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hundreds of miles.from the plant." (p. 9). The; Amended Petition also - contended that the revised TS for Licensee's Turkey Point.
Plant. "will cause the- plant- to be operated unsafely because- ofi relaxed safety margins resulting in a release of radiation'into the environment which will- enter the food chain and adversely-affect Petitioner's health,- safety- and well-being and that of his family -and -pets ey causing- them = cancer and related-illnesses."'(p. 9).
The_ ' Amended . Petition further claimed such .a
_ release of' radioactivity in. an event from Licensee's Plant due to' unsafe operation'would surely affect Petitioner's interests -of _ well-9 a
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being as well as his-l'nterests in real and personal property in.
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' Jupiter, Plorida. The Amended Petition- and a Affidavit described- Petitioner Saporito's activities in the Miami area:-(Affidavit discussed below).
-The Amended Petition also claimed that discretionary interventio'n should be considered. Petitioner Saporito described his extensive experience with these general issues, his direct ' experience with Licensee and its Turkey Point plant as a former employee there, the contribution he could make to th'o proceedings, and noted that his interest will not be represented by any existing parties. (pp. 13-15).
The ' Amended Petition declared NEAP's status as .an intervenor. .(Note: While the Petition alleged NEAP derives its standing from Saporito, (p. 15) there was no intent here to-foreclose any other available means of standing for NEAP.)
The Amended Petition stated, in fact.-(p. 15-16) that NEAP
" distributes information about the Turkey Point nuclear plant in. Homestead, Florida. This function provides for public
. education of. nuclear energy issues and meets a requirement of NEAP's mission." The Amended Petition also - stated that - NEAP
" utilizes the legal library and the Florida International P
University- which are -(10-20 miles respectively) of the Turkey-Point-nuclear plants." (see pp. 15-16).
Additionally, NEAP "has obtained- authorization from the Superintendent of the Dade county -School Board to conduct.
educational-seminars at all of the public schools in the School 10
o Board's jurisdiction." The Amended Petition then described how these organizational interests and purposes would be affected by an unsaf ely operated Turkey Point f acility (see p.16-17) .
Further, the Amended Petition identified four persons who are members in good standing with NEAP, who share NEAP's concern regarding the license amendment, and who own real and personal property within the zone of interest around the Plant.
The four were: Weinkle, Edelson, Brezenoff (noted in the original Petition), and Ms. Maria Firmino. (p. 17). The Amended Petition stated is not required that these individuals submit af fidavits authorizing NEAP to serve individual interests in a representational capacity, although the Amended Petition stated that, at the direction of the Board, NEAP would provide an affidavit of at le%at one member residing in the geographical zone of inteaest around the Plant and which would satisfy the standing requirements for organizational representation.
Finally, as to intervention, the Amended Petition stated discretionary intervention also could be permitted as to NEAP.
It also observed, "It is neither Congressional nor Commission policy to exclude parties because the niceties of pleading were imperfectly observed. Sounder practice is to decide issues on their merits, not to avoid them on technicalities." (p. 22).
Supporting the Amended Petition was an affidavit prepared by Mr. Saporito on January 28, 1990, that more fully described his_ interest in these proceedings, more particularly his involvement in the geographic zone within 50 miles of the 11
a Plant. The Affidavit stated that he is a resident of Jupiter, Florida, 83 miles from the Plant and is Executive Director of NEAP (as well as President and Treasurer).
The Affidavit also stated that Mr. Saporito is an ing_t.ructor at the ATI Career Trainina Center in Miami, teaching digital electronics and microprocessor technology Monday through Thursday for six h>%rs per day. He airo incurs travel time of two hours per day and prepares lesson plans four hours per day within the same zone of interest. He also stated that he holds an A.A. degree in electronics technology along with numerous diplomas from various technical training seminars, spanning a 17-year career in this field.
In addition, the Saporito Affide.vit stated that as Executive Director of NEAP, he conducts frequent and extensive research at the legal library in Coral Gables in South Miami at various times during the week, from between five to 20 hours2.314815e-4 days <br />0.00556 hours <br />3.306878e-5 weeks <br />7.61e-6 months <br /> per week. It further stated that he was authorized to represent the interest of the Petitioner.
Mr. Saporito also stated that he had been employed by the Licensee at both the Turkey Point and the St. Lucie plants. His duties in the seven years of his employment including technical analysis, as well as testing and repair of sophisticated electronic instrumentation for monitoring and control of the fission process at the plants. The Affidavit further stated in significant detail the various plant systems with which Mr.
Saporito is familiar (see par. 12). He stated that he satisfies 12
the requirements of a plant engineer in instrument and control.
In addition, the Amended Petition presented 56 Contentions related to proceedings as to the Plant's TS amendments.1 In the Matter of Florida Power & Licht Co. (Turkey Point Plant, Units 3 and 4), Docket Hos. 50-250 and 50-251, Petitioners Amended Petition to Intervene and Brief in Support Thereof, pp, noted).
The Licensee's reply to the Amended Petition was submitted March 16, 1990. Licensee once again stated thaV the intervention should not be permitted in this matter.
The Licensee stated that the TS revisions "would represent an improvement in safety in comparison to the current" Plant TS. As to some of the " relaxations," the Licensee stated (p. 5) that these relaxations " reflect industry experience indicating that some surveillances and action statements are unnecessarily restrictive and, for example, do not afford enough time for appropriate analysis before tLking corrective action, or i unnecessarily require interruption of steady state operations."
(See f n. 7 in the Licensee's reply, to the effect that certajn of the proposed changes in the Plant's TS "would not require hardware changes" at the Plant.)
1 These contentions were treated in great detail in this Amended Petition and in other documents in the record. Because the primary issue at this-stage is standing, the Contentions themselves will be mentioned only in background. This is l particularly so since decisions as to standing are to be made I
by the Board with respect to the applicability of only one appropriate contention and independent of the adequacy of other contentions. However, it should be kept in mind that although l- meay of the 56 original contentions were later withdrawn, the Board adopted several of the remaining Contentions reviewed.
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1
The - Licensce's reply ' to the Amended Petition challenged the suffic4 cerv of the statements made with regard to each of the 56 Contetitions *=ised by -Petitioners in the Amended Petition. (ses; . *
... se's reply, pp. 10-29). The Licensee declared- that each of the 56 Contentions raised was - either flawed,- not appropriate, not applicable, or insufficiently s 1. "hus, intervention should not be' permitted because the Petitioners have~not advanced one admissible contention.
Prior to a prehearing conference on these issues, and before the NRC Staff response to the Amended Petition could be filed,-developments on the issue of standing for either NEAP or i
Saporito took an unusual turn. On March 0, 1990, Saporito was approached by the Director of the ATI Career Training Center: -
where ~ he is employed,- who inquired as to a letter sent by Licensee's counsel to the ATI Director. Apparently, counsel's letter was an attempt to verify the information in Saporito's sworn; affidavit concerning his' employment at ATI.
However, concerned by this action by Licensee's counsel, Saporito sent a letter to the- Board _on March 9, 1990. The letter charged that the actions " appear to be motivated by
- hopes 1of intimidating Mr. Saporito's employer resulting in Mr.
- Sapotito's terminating -from ATI." The : statement observed - that it.was Mr. - Saporito's belief ' that the - Licensee has employees:
f enrolled at ATI,'at a cost of $10,000 per student, and thus l
l .that ATI could be intimidated by Licensee.
p 14
L .-
The NB: Staff response to the Amended Petition to Intervene by NEAP and Ssporito was filed March 19, 1990. The NRC Staff again reviewed the various applicable standards concerning standing.
i.
As to Saporito, the NRC staff concluded - that Sanorite'sh~
.? t--tp ecolovnent relationshio within the zone of interest around the Plant wcs sufficient for individual standina. -The- Staff observed that Mr. Saporito stated in the Amended Petition that he works " regular hours at a regular place of business in the vicinity of" the Plant, and that he alleges he could be
" adversely affected" by an accident at the Plant. Thus,-
"Because Mr. Saporito alleges an inKry in f act within the zone of_ interest protected by the Atomic _ Energy act or the National Environmental Policy Act, he has established standing to intervene as an individual in this proceeding." (p. 7).
. Further reviewing the intervention issue as to Saporito, the NRC Steff stated that his standing as an individual is based on his regular employment contacts 'in the vicinity of the Turkey Point facility. He has failed to establish standing to intarvene based on his residence in Jupiter, Florida. Residence within the geographical zone of interest which could be affected by a nuclear accident may be a basis to establish standing. (Citations omitted). Mr. Saporito has stated that his residence in Jupiter, Florida is approximately 83 miles from the Turkey- Point facility. Amended Petition at 9. However, Mr.
Saporito has not alleged _ facts which support a conclusion that the proposed action could result in an accident that would affect his residence which is a distance of 83 miles- - from the Turkey Point facility.
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- .t TheiStaf fi also concluded _ that Mr. Saporito's involvement with
-NEAP d o e s -- n o t result in regularized - contact with .the Miami area,_and the extent of these contact'alone-is insufficient for standing.-(see pp. 6-8).
As-to. NEAP, the NRC Staf f also' found - that since- sanorito +
is - an of ficer of' the orcanization. NEAP derives oraanizational !
standina from hin. - (p. 9). The-NRC. Staff found that NEAP has ,
not-established organizational standing on its own, inasmuch as ,
it supposedly had not alleged facts supporting a conclusion that the proposed licensing amendment could result- in an accident affecting interests _ 83 miles from the plant (in-
- Jupiter, Florida, NEAP's offices). Also, NEAP's-~" general claim _
of interest in-environmental issues" does not serve as a basis for establishing independent organizational standing- to
-intervene.
As to_ organizational standing for NEAP'through individuals other than Saporito, the NRC Staf f response to -the Amended
. Petition stated that the four-' persons mentioned in the-Amended-
-Petition - (Weinkle, Edelson, Brezenoff, and Firmino) have not-provided affidavits identifying them as NEAP members -- or identifying the potential ' injury to their interests by the license amendment proceedings.
The NRC Staff stated that if NEAP still seeks to establish-standing _ through these individuals, then affidavits should be-submitted. 'However, "because NEAP derives standing from Mr.
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c.
Sapor ito, an organization' officer, such action is-unnecessary for NEAP:to establish representational standing."
4 As to discretionary intervention, the NRC Staf f response expressly declined to consider it. Since-Saporito and NEAP meet-
.the; standards-for individual and organizational standing, "the Staff will not discuss the standards for discretionary intervention .or the argument for discretionary intervention:
raised by the Petitioners in the Amended Petition." (p. '10).
However, the. Staff indicated that the discretionary
'intarvention standards may not have been met. (p. 10).
- The NRC Staff response then turned to a discussion of-each of- the 56 Contentions _ raised by the Amended Petition. Again.
I .(see fn. 1, suora) this details of this discussion are not-
-directly relevant ~here. However, it is to be noted that the NRC Staff concluded that not' one of the 56 Contention was admissible and thus intervention should thus be denied (p. 81).
In the Matter of-Florida Power & Licht Co. (Turkey Point Plant, LUnits .3: andi 4),. Docket Nos. 250 and 50-251, NRC - Staf f -
-Response .-to; Petitioners Amended Petition for Leave' to Intervene,.pages as noted).
.Nevertheless, -although the NRC Staff recommended denial of l
' intervention because no - admissible contentions were presented i
Lin Petitioners'. Amended Petition, the stage was' set for further developments - with - respect to Saporito's standing'. It appeared that the NRC Staff found that Mr. Saporito had individual standing solely-on the basis of his employment as an instructor 17 i~
at ATI. And the NRC Staff found that NEAP had oraanizational standina only throuch a member, and this was solely through Saporito's individual standing and his role as a NEAP officer.
Saporito's ATI employment was thus declared as the sole link for standing, both for himself and for NEAP.
i .; , .
III. Saporito's Withdrawal and Subsecuent Proceedinos A prehearing conference was held, as scheduled, on March 23, 1990. Saporito did attend this prehearing conference on behalf of himself and NEAP. The Atomic Safety and Licensing Board prepared a Memorandum and Order en issues raised by the conference, especially the issue of standing of Saporito and NEAP, and whether any admissible contention had been raised.
However, before this Memorandum and order could be issued, Mr. Saporito sent another letter to the Board, dated April 1, 1990. By this letter, Mr. Sacorito (aaain, cro se) withdrew all personal participation from this license amendment croceeding.
The letter complained that Licensee's counsel had once again contacted ATI Career Training Center. The letter charged unethical conduct by Licensee's counsel in this regard and stated:
As a direct or indirect result of Applicant's contact with Mr. Saporito's employer concerning matters relevant to these proceedings, Mr. Saporito's employment and employment opportunities have been adversely affected. Since Mr. Saporito has the responsibility for a wife and three small children, the results of Applicant's actions germane to Mr.
Saporito's employment have caused Mr. Saporito to feel intimidated by the Applicant's actions.
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.: e Therefore, as a direct-_ result of - Applicant's
- actions = through Applicant's' counsel. . .the- Board is Th e r e by_ officially informed and advist.d that Petitioner, Mr. Thomas J. Saporito, Jr., hereby-withdraws entirely from these proceedings.-
The-letter charged, "I trust that the Applicant will be satisfied that -Petitioner, Thomas J. Saporito, Jr., has withdrawn _from these proceedings and would refrain from further-actions against Mr. Saporito or his family." The letter stated that Saporito's witndrawal leaves NEAP itself as the sole remaining Petitioner and that NEAP's standing is not based on Saporito's standing. NEAP was thus invoking _ standing either on its own right_as an organization, or through other members.
This withdrawal announcement was met by a response by the Licensee on- April _13 , - 1990.
_ The Licensee . stated - that the withdrawal "has revived the f orma.'ly resolved issue of NEAP's
~ standing. to _ participate . " . And, "As demonstrated in earlier pleadings-and despite ample opportunity to do so, NEAP has not
. established standing other than as a representative of Mr.
Saporito."
--The- Licensee stated- that- NEAP's- standing has been
'? comprehensively . addressed" and that the required additional-information-has' not been submitted. Consequently, but for'Mr.
i i
Saporito's withdrawal, "the pivotal issue of standing would l '.have been put to- _ rest in this proceeding." The Licensee also-declared. that' discretionary intervention was' not available to I'
fn. 3). (In the Matter of Florida Power & Licht
~
_ NEAP _(see p._ 5, ca
- C_o (Turkey Point Plant, Units 3 and 4), Docket Nos. 50-250 and 19
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_y 1*.
50-251, Applicant's _ Response to Notice of Withdrawal from
. Proceeding).
Thus, the Licensee stated, NEAP has no standing at all.
The_ Licensee also noted the response by the Department of Labor
- to - proceedings initiated by Saporito as to the contact of ,
Saporito's' employer by - Licensee's counsel.2 The Licensee also l challenged the nature of the charges. made by Saporito in his
-March-9 and April 1 letters to the Board.
-The Licensee's response was, in turn, the subject of an answer _-by Petitioner NEAP, filed April 20, 1990 (again, cro se by Saporito) . The Petitioner's answer again charged unethical and unprofessional conduct by Licensee's counsel as well as l claiming -that counsel's actions in contacting ATI were in the nature of an ex carte communication (p. 2).
More ' importantly, the Petitioner's answer again asserted various aspects of NEAP's activities as an organization which establish organizational standing for the license amendment proceedings. (see p. 4, and as also stated in the Amended.
Petition). The Petitioner's answer reviewed the standing-principles and stated that NEAP- has submitted' sufficient 2 It is- to be noted that the Department of Labor-proceeding initiated by Saporito is continuing. The proceeding was ' initiated under'the "Whistleblowing Statute", Section 210 of' the Energy Reorganization Act (42 - U.S.C. Sec.- 5851).
Although there-was originally a negative response by the' DOL to Saporito's complaints regarding the contact of his employer'by- -
Licensee's counsel, additional matters have also been submitted to the DOL. These proceedings are, however, collateral to the present proceeding and unrelated to the issue of standing for-
-NEAP here.
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inf ormation to permit a finding of organizational standing or standing through another one of NEAP's members. (p. 4-9).
Also, Petitioner's answer stated that NEAP should, in any event, be granted discretionary intervention because of the valuable contribution that NEAP could make to the decision making process. Petitioner also pointed out that HEAP's interests would not be represented by existing parties. (In the Matter of Florida Power & Licht Co. (Turkey Point Plant, Units 3 und 4), Docket Nos. 50-250 and 50-251, Intervenor's Answer to Applicant's April 13, 1990 Response and Intervenor's Motion for Sanctions Against the Application and Intervenor's Motion for ,
Leave to Amend Contentions).
The NRC Staff, in turn, also submitted a response to Saperito's April 1, 1990 notice of withdrawal. The Staff concluded that, based on Sacorito's withdrawal, NEAP does nqt have standing independent of Saporito.
The Staff reiterated that organizational standing cannot be achieved "by the assertion of a general interest in nuclear issues or an interest in a proceeding." NEAP's status "as an environmental and educatienal organization is not a sufficient basis for independent organizational standing."
The NRC Staff also found that there was insufficient additional information to consider NEAP's claim that it had standing through- one of its other members. Because NEAP's standing related to that of Saporito, Saporito's individual withdrawal deprived NEAP of standing. (In the Matter of Florida 21
s- 1 mj
- .... t . ;
m.
. Power _: & - Licht Co.-(Turkey Point Plant, Units 3 and 4), Docket .;
Nos. 50-250 and 50-251, Staff Response to Thomas J. Saporito, ;
Jr.'s Notice of Withdrawal). i i
IV. Beard's Mgmorandum and Order en Motion'to Withdraw
. Th e. -action- by Saporito withdrawing individual !
participation from the license amendment proceedings, the reply -;
of the Licensee, the response by NEAP, 'and the NRC Staff response,- were the subject of . . a _ Memorandum and Order by the Board -(Peter- Bloch, Chair) , issued April 24, 1990. In. light of the .Saporito -withdrawal,. the Board found- it necessary to-require additional information as to standing for NEAP.
The Board first determined, on the basis of-the limited-information available to it, that'there was no valid rearon for any charge of. intimidation by Saporito and that the- charges [
level against Licensee's counsel were unfounded. (p. 2-4). 1 Nevertheless, the Memorandum ~ stated that "it is important.to the Licensing _ Board to get-to,the bottom of this matter." -
-The Board also stated that it was. not , clear, following Saporito's . withdrawal, how NEAP was claiming standing, or through which particular member (s) . The Board stated' that NEAP does not have standing "as an organitation' since it is merely -
claiming a generalized grievance--alleged danger from a nuclear -
power plant--that- is shared by the general public." (p. c)
- (Footnote and_ citations omitted, emphasis omitted).
As to standing for NEAP through other individual members, 22
- __ _ . _ . _ . _ . _ _ . - , . . . _ _ . _ _ _ . . . . _ . . . . . _ . _ . . . . . ~ . _ . _ , ~ _ _ _ . _ . --_. _
the Board reviewed the standing requirements and found that additional statements and information from additional members would be necessary. The Board required NEAP to submit the required additional filings by May 11, 1990. (In the Matter of florida Power & Lichj;_h (Turkey Point Plant, Units 3 and 4),
Docket Nos. 50-250 and 50-251, Atomic Safety and Licensing eard, Memorandum and Order (Peter B. Bloch, Chair)).
V. Additional Filinas and Responses as to Standing Responding to the Board's requirements in its April 24, 1990 Memorandum and order, NEAP submitted sdditional information on May 5, 1990. (Filed pro se by Saporito).
The Petitioner's response to the Board stated that Saporito would be the' organization's authorized representative.
The response also noted that NEAP's bylaws do not confer voting rights upon-its members.
FEAP's response to the Board also took the form of an affidavit of Ms. Shirley Brezenoff, prepared on February 16, 1990. Brezenoff cad been noted as an additional NEAP member in both the original and amended petitions to intervene.
The Brezenoff affidavit stated that she resides and owns real and personal property in Coconut Creek, Florida, within 50 miles of the Plant, and that she is concerned that revisions in the Plant's TS "may cause the Plant to be operated unsafely resulting in a release of radiation which will adversely affect my health, safety, and well-being and harm my real and personal 23
l l
property" in Miami.
The affidavit also stated that she is a member in good standing with NEAP and that she adopts NEAP's views with respect to this proceeding. The af fidavit also stated that she voluntarily gives NEAP and Saporito permission to represent her interests in'the proceedings. (Also attached was a certificate of membership for Brezenoff identifying her as a representative of the " Quad City Citizens for Nuclear Arms Control," with an address the same as Brezanoff's Coconut Creek address). (In the Matter of Florida Power J Lichj;__Co. (Turkey Point Plant, Units 3 and 4), Docket Nos. 50-250 and 50-251, NEAP's P.esponse to the ASLB's Memorandum and Order).
The NRC Staff replied to NEAP's response to the Board's April 24, 1990 Memorandum and Order, on May 24, 1990. The Staff pointed out that its previous finding as to NEAP's standing was based solely on Saporito's employment with ATI and that his withdrawal from the proceedings would thus affect NEAP's standing. The Staff also noted that Saporito's withdrawal from the proceedings and NEAP's standing with respect to it were not considered at the prehearing conference of March 23.
Reviewing authorities on the issue of membership status in a situation where an organization seeks standing through its members, the Staff concluded that " indicia of membership" is essential to this status. (p. 6). The Staff observed that Commissien precedents appear to adopt a liberal approach to evaluating membership criteria.
24
- .n - ~. - -, . . - . - . . . . . . - - . - - - . . . . .- - .-
2 =.
Nevertheless, the Staf f concluded' (p. ') that "the proper application of the law on the subject of_ standing of membership organi'zations_t_o the-facts-.in this case calls for the denial of NEAP's- petition. to intervene." The Staff found _ that - NEAP members . do not have voting rights and the af fidavit 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."
Although the Staff found that the Affiant (Brezenoffi dernnstrates the reauisite eersonal standinc, demonstrates that ghe is a member of NEAP. and demonstrates that she has Luthorized- NEAP -to represe'nt her interests in these proceedinaq, the Staff also found-that NEAP "does not appear to be a traditional membership organization of the type contempla ted by the Courts to qualify for representational
- standing. Therefore, the Staff concluded that NEAP had not met o
its burden of establishing organizational standing:through one of its other members. (In the Matter of Florida Power & Licht gm, (Turkey Point' Plant, Units 3 and-4), Docket Nos. 50-250_and 50-251, _NRC Staff's Reply to NEAP's Response to Licensing Board's-Memorandtn and Order of April 24, 1990).
L The Board prepared its second-Memorandum and Order related to this matter. ic discussed the standing issue for NEAP l =folleving Saporito's withdrawal.
L l
l.
25 L
L l . . - m. .. . _ . . . , , . . . - , _ . . . _ , . . . , , _ _ _ , . _ _ . _ _ _ , _ _ . , _ _ _ , _ _ , _ _ _ _.,__ _ _
r FL_Jigard Memorandum and Order as to Pgrties _and Contantions As to the filings, contentions, and issues raised before it, the Atomic Safety and Licensing Board (Peter Bloch, Chair),
issued a Memorandum and Order on June 15, 1990. The Board denied Saporito's motion to withdraw as a person upon whom NEAP relies for standing, and further admitted S everal of the Contentions raised in the Amended Petition to intervene.
The Board reiterated the review, in its Memorandum and order of April 24, 1990, of the charges and complaints made by saporito as to actions by Licensee's counsel in contacting Saporito's employer, ATI Career Training Center, ng these proceedings. The Board stated that Saporito has not -
addressed the concerns raised by the Board concerning those actions. (p. 5-6).
Accordingly, the Board found that Saporito was not coerced by the actions of Licensee's counsel and thus denied the motion to withdraw (p. 7), finding that the motion was frivolous and to grant it would seriously affect NEAP's standing in the proceedings. -However, Saporito's motion to withdraw as an individual was granted.
-The Board cautioned Saporito against creating new-issues or raising other issues which the Board considered moot (see p.
7, fn. 6 and p. 8). And the Board stated that NEAP's standing is based solely on Saporito (which, again, apparently was based solely on his employment with ATI) and therefore NEAP "has 26
already had all the opportunity it needs to estab'tish standing!
it may not file any further docueents alleging a new basis for L standing." (p. 8).
The Board also noted (p. 6, fn. 5) that it is not inclined to grant 11EAP standing through the af fidavit of Brezenof f. The Board stated that Ms. Brezenoff has no control over 11EAP and apparently became a 11EAP r.: ember through the " Quad City citizens for fluclear Arms Control" and not for herself. She thus " lacks the indicia of :.;enbarship" to establish 11EAP standing.
The Beard then turned to an ex*.ensive consideration of che L
various Contentiens raised in the Amchded Petition. It first discussed the general format of the Contentions and concerns raised by their general substance. (p. 9-16). The Board also noted (p. 16-17) that most of the 56 Contentions already had been withdrawn, and relatively f ew remained for consideration (see Board's discussion of Contentions 1, 2, 4, 5, 6, 7, 8, 9, 12, 14, 16, 18 21, 25, 30, 33, 35, 51, po. 17-50).
The Board thus concluded (p. 50) that 11EAP would be auitted as a party " solely on its representation" of Sa')orito.
The 'osrd alco adnitted Contentions 1, 2, 11, 14, and 30 (or portians of them). It considered contentions 1 and 2 to have possiole merit and deferred consideration of them pending the Board's conclusions on contentions 11 and 30. (In the Matter of Floritia Power & Licht Co. (Turkey Point Plant, Units 3 and 4),
_ Docket flos . 50-250 and 50-251, Atomic Safety and Licensing Board, Memorandum and Order, June 15, 1990).
27 l
l VII. Ter.51 nation ef Saporito's Drplo.ynent and Related Tilinas In this detailed review of the factual background of this matter, it would appear that the issue of NEAP's standing had been resolved in NEAP's f avor by the Board's refusal to permit l Saporito to withdraw insofar as his involvement permita ;
standing for NEAP. Although the Board did not discass discretionary intervention, it at least indicated that Saperito's involvement had been valuable by admitting all or part of five of the 18 remaining Contentions (after-Vithdrawal of many of the 56 Contentions in the Amended Petition).
li2 wever, an event of which the Board was unaware when it issued its June 15, 1990 Memorandum and Order on NEAP standing was to seriously affect its decision on standing. On May 10.
1990. Sapprito's oosition as an instructor with ATI Car.CRE Trainina Center was terminated.
This development was made known to the Board in a letter (by NEAP counsel) of June 20, 1990. Counsel (now to the case at this stage) informed the Board of Saporito's termination and noted the Board viewed NEAP's standing only as to Saporito and, in turn, his standing solely as an ATI instructor. Counsel
. urged the Board to reconsider the matter, in the context of Saporito's termination and his claims of intimidation. (In the ,.
littier pf riorld.g Power & Licht Co x (Turkey Point Plant, Units 3 and 4), Docket Nos. 50-250 and 50-251, Letter from Counsel for NEAP and Saporito, June 20, 1990).
28
- .. , _ _ , . _ - . _ _ . _ _ . _ _ . _ _ _ _ _ . _ ~, _ -. .-. .
Ir lig.'.t of this development, Licensee filed a motion for reconsideration and to dismiss the Amended Petition to intervene, on June 22, 1990. The motion pointed out that the ternination of Saporito at ATI on May 10, 1990, an event which had not occurred as of the March 23 prehearing conference and of which the Board was not ware prior to its June 15, 1990 crder, had changed the circumstances of NEAP's standing. The Li:ensee moved that NEAP's petition to intervene be dismissed.
Licensee claimed that Saporito's solo contact with the
":ene of interest" around the Turkey Point plant was his employment with ATI and he "has not presented the Board with any other claim to presence or a-tivity within the geographical-
- ene of interest sufficient to establish standing." Licensee claimed there is insufficient detail in Saporito's claim that he engages in research activities at Coral Gables and at the Plcrida International University Library (Amended Petition to Intervono at 10-11) and thus this involvement could not by itself provide individual standing (see p. 3, in. 4). Licensec l
also claimed that the Board's determination "was based upon a factual error, and HEAP in fact lacks standing to intervene."
(pp. 2-3), (In the Matter of Florida Power & Light....Co ,. (Turkey Point Plant, Units 3 and 4), Docket Nos. 50-250 and 50-251, Applicant's Motion for Reconsideration and Dismissal of Petition to Intervene).
1 29 a
e
Thus, once again, the issue of NEAP standing without Saporito was placed squarely before the Board. Faced with this situation, the Board determined that NEAP indeed did not have standing to intervene here.
Bytelephoneconference,ahearingonwasheldonJune2h, 1990 before the Atomic Safety and Licensing Board (peter B.
Bloch, Chair). However, at the time of the June 26 hearing, counsel fer NEAP, new to the case, had not yet received or been able to review the Licensee's June 22 motion for reconsider-ation and to dismiss. (p. 70).
The Board noted, however, Saporito had at least 30 days between his May 10 termination and the Board Memorandum and its Memorandum and Order of June 15 to notify the lloard that he had been terminated. Counsel for NEAP rep'.ied that "in the past several weeks there have been f airly dramat,1c changes in the posture of this case" and the events as they were unfolding were not only confusing to Sal $orito but affected him personally far beyond his interest in the present matter (p. 74-75).
Counsel for NEAP also indicated that NEAP's information to the Board concerning its membership as it related to the t'esent proceeding may have been minimal, but only ou)--84 4' JAP's concern for the confidentiality of its membership (p. 76-77).
Various other matters regarding Saporito's termih a n and its effect on NEAP's standing were discussed at the hearing. It was apparent that counsel for NEAP needed to respond to the 30
l Licensee's dismissal motion. (In the Matigr of Florida Power &
Licht Co. (Turkey Point Plant, Units 3 and 4), Docket llos. 50-250 and 50-251, Transcript of Hearing, June 26, 1990, Atomic Safety and Licensing Board, pages as noted).
Thus, on July 10, 1990, liEAP , through counsel, filed a response to the Licensee's motion for reconsideration and dismissal. IlEAP contended that dismissal, particularly at this ,
stage and in this context, would not serve tbs ends of justico, would not f urther public health and saf ety t.a s ns! der' cions, and would not advance the integrity of the 14consing process.
IlEAP also contended that it should be p6rmitt'd e to further establish, clearly without Saporito's presence in the proceedings, that flEAP is entitled to intervene either as an organization, through one or more of its other members, or as a matter of discretion. (p. 3). IIEAP also mentioned that saporito's termination from ATI was in active litigation with the Department of Labor (p. 4-6 and see fn. 2, suora),
llEAP thus urged that the Board carefully review liEAP's standing with respect to other aspects than individual standing through Saporito, permit it to introduce other evidence with regt.rrt to those issues, and offer its guidance as to other relevant supporting facts or information for the Board's review. (In the Matter of Florida Power & Licht Co. (Turkey Point Plant, Units 3 and 4), Docket llos. 50-250 and 50-251, Response of 11uclear Energy Accountability Project and Thomas J. <
Saporito to Florida Power and Light's Motion for i-31 l
, . . . . - , ..,._,_._m.,.___,,..,_,m-
_ _ _ _ _ , , . . , , . , , , , ,,_y,n__ ..__,m,._ ,_.m,- ~ _ , _ _ . , _ . , _ . _ , . - - _ _ , _
Reconsideration and Dismissal of Petition to Intervene).
11EAP's motion for reconsideration was in turn the subject of a fj*dng of July 12, 1990 by the 11RC Staff. The Staff concluded that saporito's termination compels granting Licensee's motion to dismiss llEAP's petition to intervene. The 11RC Staf f reviewed the background of the matter and noted that it had alreacy concluded that liEAP did not have organizationni sta.iding since it was nerely claiming a " generalized grievance" cencerning nuclear power plants tnat is shared by the general ,
public. (p. 4) The 11RC statf also noted that Saporito's discharge now "has severed his ties with the Miami area and the
' geographical zone of interest.'"
.Thus, according to the liRC Staff, Saporito no longer had personal standing to intervene. IIEAP thus may not derive its representational standing from him. (p. 6).
Yet the flRC staff response did not extensively consider the possibility of_11EAP standing through one or more additional members, did not consent on the possibility that liEAP may be-able to establish such standing were it permitted through counsel to submit additional information, and did not discuss
(
l discretionary standing. (In the Matter of Finrida Power & Licht l h (Turkey Point Plant, Units 3 and 4), Docket lios. 50-250 and 50-251, 11RC Staff Response to Applicant's Motion for Reconsideration, pages as noted).
32
The Board thus had before it the situation of Saporito's l termination, the Licensee's motion f or reconsideration and to :
dismiss, a conf erence on those changed circumstances, a reply by liEAp to the motion to dismiss, and an liRC Staff response to the Licensee's motion for reconsideration. The Board thun issued a Memorandum and order (on appeal here) granting the Licensee's motion and dismissing 11EAP's amended petition.
VIII. Board Memorandur and ordgr (Motion to Dismiss)
Lbasis for nresent anneall The Atomic Safety and Licensing Board issued its ,
Menorandum and order on the motion to dismiss, on July 17, 1990. The Board granted the motion, finding that following Saporito's dismissal from ATI, 11EAP no longer had standing.
The Board declined 11EAP 's request to submit additional facts and argument that could establish standing on other grounds (p. 3). The Board also found that Saporito did not substantiate his earlier claims of harassment and unethical conduct in the actions of Licensee's counsel in contacting ATI.
Further, the Board found that ifEAP already had ample opportunity to establish standing. (p. 4-5).
The -Board thus deterruined that liEAP had no organizational l -standing. Standing through its members was restricted to standing from Saporito, in turn based on.his presence in the l " geographical tone of interest" through employment with ATI.
Upon Saporito's dismissal, etanding was no longer available.
33
As to discretionary standing, the Board reviewed Mr.
Saporito's background, his availability of time, his other resources, and the extent of his expertise. (p. 7-8). Although complimenting Saporito on his persistence and involvement, the Board nonetheless found that he "has brought little technical expertise to his presentation of his contentions." (p. 8).
The Board therefore found that NEAP was not entitled to discretionary intervention because "it has not brought to bear any substantial expertise to demonstrate the importance and immediacy of its concerns or to justify the necessity of considering them." Discretionary intervention was denied.
The Board then turned to the question of whether it should retain consideration of the contentions submitted by 11EAP previously admitted by the Board, under sua sconte authority (p. 10-12). It requested staff guidance on this issue.
However, the Board stated that NEAP's involvement in the case was dismissed without prejudice.-A motion to reopen the case would be entertained if the Department of Labor proceedings result in an agency determination that Saporito indeed was wrongfully dismissed. If so, "then it would seem improper that through that wrongful action Applicant would have succeeded in having this case dismissed." Barring such a finding at dol, NEAP was no longer in the case. In the Matter of Florida Power & Licht Co (Turkey Point Plant, Units 3 and l
4), Docket Nos. 50-250 and 50-251, Memorandum and Order, July 17, 1990). This appeal followed.
34 I
QUESTIONS AT ISSUE
- 1. Did the Board err in denying NEAP organizational standing?
- 2. Did the Board err in denying HEAP standing through members other than Saporito?
- 3. Did the Board err in denying NEAP discretionary standing?
ARGUMENT I.
THE BOARD ERRED IN DENYING NEAP ORGANIZATIONAL STANDING TO INTERVENE The standards for intervention need only be generally reviewed here. As stated in 10 C.F.R. Sec. 2.714, a petition for intervention must describe the petitioner's interest in the proceeding and how that interest will be affected by the proceeding. The petition must show the nature and extent of the property, financial, or other interest in the proceeding and the possible offect upon that interest of any agency order which may be entered. See 10 C.F.R. Sec. 2. 714 (d) (1) .
Judicial concepts of standing are used to determine whether a petitioner has sufficient interest to intervene in a proceeding. See P_Qtt;1a nd General Electric co. (Febblo Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976).
Thus, following these general principles, a petitioner must show that the action sought in the proceeding will cause an injury in fact, and that the injury is within the " zone of 35 l
1 __ - . .- --- - - --
i interests" protected by the Atomic Energy Act. This has been further described as havirg a "real stako" in the proceeding, asido from a generalized or otherwiso unparticularized interest.
Those intervention standards are in turn derived from decisions by the Supreme Court and other courts and agencies on standing. An to the present situation, it is evident that a careful application of these principles permits a finding of organizational standing for ilEAp or, alternatively, requiron further and more specific evidentiary review of HEAP's stake as an organization here.
For examplo, in ELqrra Club v. Morton, 405 U.S. 727 (1971), the court reviewed an attempt by the Sierra Club to halt commercial development of the Mineral King Valley near the Sequoia fiational Park. The District Court had found the organization had standing to assert its intorosts, but the Court of Appeals for the liinth Circuit reversed.
Although the Supreme Court affirmed the liinth Circuit's finding, it also established basic standards for organizationni
' intervention. The Court noted that the general purpose of the Sierra Club did relate to the proceedings before its We _ do not question that this type of harm may amount to an ' injury in f act' sufficient to lay the basis for standing under [the Administrative procedure Act). Aesthetic and environmental well-being, like economic well-boing, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by'the many rather than the few does not make them less deserving of legal protection through the judicial process.
36
1 i
i The Sierra club court, however, also found that the Sierra club [
did not establish that any of its members use the affected site '
fer any purpose, or that the nenbers would be significantly affected by the proposed action. Further, the Sierra club court stated (405 U.S. at 739-40) that an " interest in a problem" no matter how longstanding that interest or how qualified the t erganization, is not sufficient by itself to render the organization adversely- affacted or aggrieved under the Administrative Procedure Act (and therefore, under the Atomic Energy Act here through 10 C.T.R. Soc. 2.714).
The court declined, thus, to confer standing upon "crganizations or individuals who are seeking to do no more than vindicate their own value preferences through the judicial process." (But see Douglas, J., dissenting, especially discussion at 405 U.S. 750-52).
As also stated in Warth v. Seldin, 422 U.S. 490 (1975), ,
involving challenges to zoning ordinances in Penfield (a suburb in Rochester, N.Y.) which supposedly forecloced low and moderate income housing in the area, the standing question is "whether the constitutional or statutory provision on which the
-claim rests properly can be understood as granting persons in i
the plaintiff's position a right to judicial rollet." (422 U.S.
L
-at 500 (footnote omitted)). The court went on to consider whether the various organizational or individual petitioners challenging the ordinance had an interest in the actual 37
. o property etfected by the, ordinance such that "immediate and personal interests" would be affected (422 U.S. at 507).
The court noted, as to organi:ational standing (422 U.S.
at 511):
There is no question that an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy Moreover, in attempting to secure relief from injury to itself the association may assert the rights of its members, so long as the challenged infractions adversely affect its members' associa-tional ties.
And generally, United States v. Students Challenaina Peculaterv Acency Procedures (SCRAPJ, 412 U.S. 669 (1973);
Schlesincer v. Reservists to Stoo the war, 418 U.S. 208 (1974),
and United States v. Richardson, 418 U.S. 166 (1974).
More recently, in Luian v. National Wildlife rederation,
_ ,0.S. , (No.89-640), 58 U.S.L.W. 5077 (June 27, 1990),
involving a challenge to the Bureau of Land Management's federal land policies under the Federal Land Policy and Management Act and the National Environmental Policy Act, the court reversed the finding of the United States court of Appeals for the District of Columbia circuit (reversing the District court). The Luian court determined that the affidavits of the organization's members were too generalized to bring a challenge related to an area of Wyoming involving more than 4,500 acres in federal land of more than two million acres, on organizational standing, the Luian court declined to i follow the expansive view of ECPAP and related cases (see 1
38 l'
c _ .a
}
U.S. , 58 U.S.L.W. at 5082), but did not overrule it.
t Rather, the court appeared 'co indicate wide-ranging challenges of the sort brought by the organization regarding supposedly !
wholesale abuses of the federal land management program were best resolved in the other Branches. (But see Blackmun, J.,
with Brennan, Marshall and Stevens, JJ., dissenting).
And see also, EcAlth._Affdarch Groue v. Kennedy, 82 F.R.D.
21 (D.C. 1979) (generally); BPI v. Atomic Enernv__Q2mmission, 502 F.2d 424 (D.C. Cir. 1974) (upholding requirements of particularity as to standing to intervene in Commission proceedings); ohio v. Nugj e ar Reculatory commission, 814 F.2d 258 (6th Cir. 1987) (discussing af ter-the-f act organizational standing), and City of WeJt Chicaco v. United States Nuclear Reaulatory conmission, 701 F.2d 632 (7th Cir. 1982)
(municipality's challenge to license amendment allowing licensee's acceptance of contaminated soil from off-site locations).
Standing issues have also been the subject of frequent comment in NRC proceedings. For example, to establish the
" injury in fact" or "real stake" in the proceedings for an individual or organization, more than a "more interest" in a problem must be stated. See Allied-General Nuclear Servisag (Barnwell Fuel Receiving and Storage Station) , . ALAB-3 2 8, 3 NRC 420 (1976), at 421-23, involving a challenge by the American Civil Liberties Union to movement of spent fuel to the Barnwell station. However, that same decision noted that an organization 39
operating a vegetarian restaurant, juice bar, and natural food store and which obtained its produce f rom sources nea't routes ;
to be taken by the spent fuel established "a sufficiently particularized interest in the proceeding at bar to confer standing to intervene." (p. 424).
similar standing discussions are found in decisions such as- Transnuclear. Inc. (Ten Applications for Low-Enriched Uranium Exports to EURATOM domber Nations), CLI-77-24, 6 NRC 525 (1977), involving a challenge to the export program by the I Natural Resources Defense Council. It was determined that the r matter of the expert licenses "is au far removed from the generalized harm mentioned by the Petitioner that intervention in these proceedings as a matter of right would not directly benefit the petitioners in a tangible fashion." (p. 531).
And see Tennessee Vallev Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 N!:C 1418 (1977) (individual mother proceeding pro se hr.d no standing to assert interests of her '
Houston Lichtina and Power Co. (South Texas Project, Un.tb cnd 2), ALAB-549, 9 NRC 644 (1979) (discussing intervention by a group as o f. right); Consumers Power Co.
(Pa.l aisades Nuclear Plant), LBP-79-20 10 NRC 108 (1979)
(challenge to license amendment to remove and replace plant's steain generators, description of principles for organizational i standing in its own right, noting also the deference to be 1
given to pro-sn filed petitions), and C_Qnsolidated Edison co.
(Indian Point, Unit No. 2), LBP 82-25, 15 NRC 715 (1982).
40 E . _ _ _ _ _ . _ _ _ . _ _ _ . _ _ . . _ _ . , _ . _ . . _ _ - . _ _ _ _ . _ _ . _ _ _ _ _ . . _
=
i These decisions confirm, rather than feroclose, 11EAP's organizational interest here. A moro careful review of liEAP's purpose and goals demonstrates that the organization's concerns in this proceeding are quito more substantial than vague general misgivings about the officacy of nuclear power.
In Indian Point, discussing the organizational standing of the Union of Concerned Scientists, it was noted that "the organizational objectives of UCS in regard to nuclear power are clearly defined and well advertised." (p. 734). When it is beyond question that an organization's interests are specific and are related directiv to the issue at hand, the question of standing is more preciso than when considering the harm to be suffered by general, national-level organizations with hundreds of members, seeking to challengo a discrete agency action.
Here, the previous Board orders, the Staff memoranda and the current decision on appeal treated liEAP the way the Supreme Court in Sierra Club or Warth or Luinn treated those respective organizations. Indeed, it is not surprising that courts have found large, nationally-oriented groups will have difriculty establishing a prec. se organizational intorest to be harmed by a particular agency action in a particular geographic location.
IIEAP is not a -national. organization, yet no further discussion war entertained by liRC Statf or the Board as to liEAP's organizational standing except to say llEAP has only a
" generalized interest" in this subject matter. Yet advancing a
" generalized interest" does not alone defeat such standing.
41
More importantly, NEAP's stated purpose, by its cwn description, is directed to nuclear nLants in Florida. " NEAP's l
focus -is to ensure that the nuclear power plants in Florida l t
operate safely and in full compliance with federal regulations." NEAP " closely monitors the actions of the NRC to ;
ensure that everv effort is beina made to orovide for the safe I i
s eratietL_qf the nuclear n3 ants in Florida. Further, " HEAP's ig~ediate objective is to securg the safe shut down of the Iurkov Point Nuclear o.lant. NJAP believes that the Turkov Point olant is beina coeratsd unsafelv and in violation of federal re,7ulfilgng and NRC requirements."
Further, as stated in the Amended Petition, (p. 15-16) i NEAP " distributes information about the Turkey Point nuclear plant in Homestead, Florida. This function provides for public education of nuclear energy issues and meets a requirement of HEAP's mission." The Amended Petition also stated that NEAP
" utilizes the. legal _ library, and the Florida International University which are (10-20 miles respectively) of the Turkey l Point nuclear plants." (see pp. 15-16).
Additionally, NEAP "hss obtained authorization from the Superintendent of the Dade county School Board to conduct educational seminars at all of the public schools in the School Board's jurisdiction." The Amended Petition then described how these organizational it '.e r vat s and purposes would be affected by an unsafely operated Turkey Point f acility (see p. 16-17).
42
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It is dif ficult to imagine a nere precise organizational interest supporting organizational intervention as of right.
ItEAP's concerns are not the general environmental matters taken up by the Sierra Club or the pursuit of management of federal lands championed by the 11ational Wildlife Federation. 11EAP's purpose is directed at safe coeration of nuclear olants in florida and > snecifically, to the salq_pneration for, in the alternative, shut down) of the Turkey Point Plant.
These quite precise and relevant organizational purposes were never fully discussed by the liRC Staff or the Board. ,
lioither was any tir.e spent obtaining further information about
- 11EAP activities concerning these purposes, or the individuals involved in these activities, or how these purposes related to interests which could be affected by the proceedings. Yet the organization's particularized and snecific interests are beyond dispute, and the effect upon those interests by these proceedings is similarly, beyond debate.
Therefore, a more careful review of the record and of liEAP itself would show that Sierra club and cases like it are clearly distinguishable here. IIEAP is not a large national organization expressly only a generalized concern about nuclear l- power which may or may not be shared by the general public. ,
llEAP has established standing as an organization in its l own right and should have been so cdmitted as an intervenor in these proceedings. The Board erred in declining to do so.
l 43
II. THE BOARD ERRED IN DE!1YING NEAP STANDING THROUGH MEMBERS OTHER THAN SAPORITO With Saporito's a': tempt to withdraw from the proceedings, and following this, with Japorito's termiration as instructor at the ATI career Training center, it arguably is the case that HEAP's standing as an organization acting through its members chnnot be established only through Saporito. NEAP was thus left to describe this organizational interest through members other than saporito.
It should be rentioned, however, that the Board never fully considered other activities of Saporito which also are within the 50-mile " zone of interest" around the Plant, such as his involvement in research activities at coral Gables and at the Florida International University Library (Amended Petition to Intervene at 10-11). It was assumed by all concerned that Saporito's standing chiefly concerned his employment at ATI.
Obviously, everyone including Saporito expected that employment to continue and the standing issue to thus have been resolved. As a result, insufficient attention was paid to Saporito's other activities. NEAP would contend that the Board and the NRC Staff has placed too much emphasis on the entire question of Saporito's employment status and of NEAP's standing with respect to that status.
Nevertheless, organizational standing through members other than Saporito was also demonstrated. NEAP offered the
! names of five different members in support of its claim for 44
organizational standing: Weinkle, Wilson, Edelson, and Bre:enoff (an to the original Petition) and Weinkle, rirmino, Edelson, and Bre:enoff (as to the Amended petition).
i Along with claiming standing as of right on the basis of organizational interest, an organization can seek standing to challenge agency action on behalf of one or more of its members. See Warth, gunra, at 511. The association "must allege that its members, or any vne of them, are suffering immediate er threatened injury as a result of the challenged action of tne sort that would make out a justiciable case had the members themselves brought suit. So long as this can be established, and so Aong as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its renbers, entitled to invoke the court's jurisdiction."
In Hunt v. Washinaton State Aonlo Adv.r,titina s Commission, 432 U.S. 333 (1977) (challenge to North Carolina law regarding the labelling of apples shipped into the state), the court i
found standing was proper. The court noted that organizations have standing on behalf of their members when the members would otherwise have standing, the interests the organization seeks to protect are germane to the organization's purpose, and the i
issue does not require the participation of the individual nenbers in the lawsuit.
l The lignt court also noted that while the challenging l
45
_ , _ . . . ~ _ - - _ - . _ _ _ .._ ,._ . _ . . - - - - , _
organization was a state agency, it performed the basic functions of a trade association. In other words, its " members" possees all the " indicia of membership." The court indicated this included electing governing nembers, financing activities, serving on agency boards, and utilizing the agency to vindicate their interests. Thus, "it would exalt form over substance to differentiate" between the advertising agency and a traditional trade association for purposes of standing.
Thfs " indicia of membership" guideline has been one way of determining the substance of the link between the member whose interests are affected and the organization through which those interests are advanced. See, e.g., sierra club v. Aluminum pr oany of Arn e r i c a , 585 T.Supp. 842 (N.D. N.Y. 1984)
(disapproving a hyper-technical reading of organizational standing requirements between " members" or " contributors" or
" supporters"); Montcomerv Environnental coalition v. costle, 646 T.2d 568 (D.C. Cir. 1980), and RITE--Research Imoroves the Environment, Inc. v. costle, 650 T.2d 1312 (5th Cir. 1981).
See also, consolidated Edison comoany, (Indian Point, Unit 2), CLI-82-15, 16 NRC 27 (1982) (purpose of various organizations such as Friends of Earth are germane to the issues advanced and members interests were not too diverse for adequate representation, see p. 31-32); consumers Power Company (Pa111sades Nuclear Plant), LBP-79-20, 10 NRC 108 (1979)
(organization must identify at least one member whose interest may be affected and must show either directly or presumptively 46
that the identified member has authorized the organization to represent his or her interest, p. 113, presumotion of standina where an oraanization raises safety issues on behalf of a member or merbers residina in close oroximity to a facility, p.
115); Houston Liahtina and Power comoany (South Texas Project, Units 1 and 2), sunra, 9 NRC 644 (purposes of " Citizens Concerned About Nuclear Power" are germane to representation of individual interests), and Houston Lichtina and Power comoany (Allens Creek Huclear Generating Station, Unit 1), ALAB-535, 9 NRC 377 (1979) (lack of standing of National Lawyer's Guild through organization's own interest and lack of standing through representation of members' interest when Guild declined to provide information as to even one of its members who may be affected by the proceedings).
In fansumers Power Comeany (Pa111sades), supra, 10 NRC at 115, it was noted that the Great Lakes Energy Alliance has properly " set forth concerns with respect to health-and-safety and environmental aspects of the proposal under review." And it was also clear that the members resided well within 50 miles of the plant involved in the proceedings.
Moreover, as also noted by Houstan Lichtina and Power comoany, (Allens Creek) there is no need for a specific recro sent a t i on__a l authority for _oraanizations whoge sole or primary ourpose is to ocoose nucl ear _D.qwer in cenoral or the facility in har in particultir. As was stated in WAghinoton _
Public Power System (WPPSS Nuclear Project No. 1), LBP-83-16, 47
s
.o 17 NRC 479 (1983), "In this type of situation, it can reasonnbly be inferred that by joining the organization the members were implicitly authorizing (the organization) to represent their personal interesta that might be affected by the proceeding." (p. 482). It was further noted that the individual on whom the organizational standing is based need not be conversant with, or be able to defend, each of the contentions raised by the organization.
And see also Consolidated Edison ConDany (Indian point),
suora, noting that th. organizational objectives of the Union of Concerned Scientists were well known and specific and "there can be little doubt that it is a desire to support the pursuit of these goals that motivates the financial interests of UCS sponsors." In fact, "The primary purpose of UCS in this case is to oppose the continued operation of the Indian Point plants; it was their petition to the Commission to shut down the plants that initiated this proceeding."
Therefore, UCS was not required to produce an affidavit from one of its members or sponsors since it may be presumed to represent their interests. "Thus the fact that we have not been provided with an executed affidavit is of no consequence." The fact that UCS had sponsors living within 25 miles of the plant was snough to give it standing, "provided those sponsors may be regarded in this instance as equivalent to members."
Where an individual UCS sponsor has standing, "this provides a sufficient nexus between the organization and this 48
o a preceeding so as to permit representational standing by UCS.
Where, as here, a non-renberghip orcanizatier. has a well_- l defined ourcose which is cormane to_the croceedinas, sconsors can be considered couivalent to rembers where they financially succort the oraanization's obiectives and have indicated a desire to be reeresented by that orcanization." (p. 736, and see fns. 9 and 10) (Emphasis supplied).
And soo also, Vircinia Electric and Power Coreang (North Anna Nuclear Power Station, Units 1 and 2), ALAB-536, 9 NRC 402 (1979); Eqk e Power Co:cany (Oconee Nuclear Station and McGuire Nuclear Station), LBP-79-2, 9 NRC 90 (1979) (discussing standing issues with respect to Natural Resources Defense Council), and Vermont Yankee Nuclear Power Corcoration (Vermont Yankee Nuclear Power Station), 25 NRC 116 (1987).
As these decisions and authorities demonstrate, NEAP is fully capable of representing the interests of the four named individuals in the Amended Petition to intervene. HEAP's organizational purpose- and goals are well documented, specifically with respect to the Turkey Point Plant. And the affidavit of Brezenoff (even if it is required at all),
l sufficiently describes the concerns of a person who lives within the " zone of interest" around the Plant.
L l Further, NEAP was not permitted to present additional information to describe these other member interests or to determine the " indicia of membership." It is further asserted here that- " indicia of membership" exists with NEAP at least to 49 l
l o
l i
the extent that it existed with the Union of Concerned i l
Scientists or other similar groups for whom standino was f ound I proper as a basis of " member" representation.
Here, the Brezenoff affidavit was dealt with by the Board only in a footnote, rurther, when it was earlier determined that NEAP had representational status through Saporito, the NRC Staff found that it would not be necessary to require additional affidavits from other members 4 When additional material was requested by NEAP as to other members, it was provided. Thus, it is curicus to note that both the NRC Staff and the Board appeared concerned that HEAP did not avail itself of " ample opportunities" to establich standing by other means, er that it found.the Brezenoff affidavit lacking, particularly in view of the context here and in view of the authorities and agency decisions in similar situations.
In addition, it should be noted that much has been made by both the Licensee and the NRC Staff about the 50-mile " zone of interest" with respect to standing either of Saporito or of any l
l- other NEAP members. This " zone of interest" appears to have become a mechanically-applied litmus test which either confers l or denies standing simolv on the basis of geographical proximity. No authority applies this 50-mile zone so rigidly.
! No specific distance from a nuclear power plant has evolved from Commission decisions to definn the outer boundary I
of the " geographic zone of interest." See L9xAs Utilities Generatina Company (Comanche Peak Steam Electric Station, Units l
l 50
. _ - _ . ~ . _ ~ __- ._ - . _.. ._ , _ . , _ . _ _ . - _ . _ _ _ _ _
1 and 2), 9 HRC 728 (1979). Distances of up to approximately 50 miles indeed have been found not to be so great as to preclude a finding of standing based on residence. See Tennessee Vallqy Authority (Watts Bar), suora, p. 1421, n. 4, and Northern States Power Concany (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188 (1973).
This " geographic zone of interest" has varied through the years and has been considered on a case-by-case basis rather than strictly and conclusively applied. See Tennessee Valley, gypIA; Texan Utilities GengIAtina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), supra, 9 NRC 728 (1979);
}{p.gston Lichtina and Power Co. (South Texas Project), gypIA, 9 NRC at 443-44, and Detroit Edison Co. (Enrico Formi Atomic Power Plant, Unit 2), LDP-79-1, 9 NRC 73 (1979).
In Detroit Edison (Enrico Fermi Plant), it was affirmed that standing may be asserted by claiming that an individual or organization's interests are within the " geographical zone of interests" that might be affected by an accidental release of l fission products. (p. 78). In llouston Liahtino and Power (South 1
Texas Project), it was noted, 10 years ago, that the " longest distance heretofore determined to be within the " geographical l
l zone of interest" was 50 miles. Distances of 125 or "several hundred" niles w3re considered too remote for this geographical interest zone. See f_)orida Power and Liaht Comnany (St. Lucie Nuclear Power Plant, Unit No. 2), LBP-87-2, .' 'V 12 (1987)
(residence of more than 100 miles, too remote-51
It is apparent that the 50-mile cono is a guideline for the determination of a " ene of interest" for an intervenor, and not a bright-line boundary such as for rights to real property. This 50-mile zone, therefore, is not to be mechanically applied. No agency decision has ruled that the 50-mile zone is an absolute, overriding, or primary standard.
Beyond this, given recent historical experience, there should be some doubt whether a zone of 50 or even 100 miles around a nuclear plant is aufficient to describe the geographic zone to be affected by an accidental release of fission products. Certainly all residents within the entire .'. r e a of Dade County and beyond would be immediately concerned in the wake of a serious accidental event at Turkey Point.
Thus, even if it is determined that Saporito's activities
! aside from his ATI employment were insufficient to confer l representational standing for NEAP through him (and there was insufficient consideration of this question), it is evident that NEAP's representational standing was established through the Brezenoff affidavit. The affidavit put forth sufficient information to demonstrate that this HEAP member lived within the zone of interest, had property in that area, was concerned about the operation of the Plant, and authorized NEAP to advance those concerns on her behalf.
If this affidavit was insufficient, the Board did not give NEAP a true opportunity to supply additional information once it had obtained counsel. The Board erred in denying standing.
52
=
o- l III. THE BOARD EM i IN DECLINING DISCRETIONARY '
INTERVEt27 ION " .: .,.P OR 70 SAPORITO i Tinally, NEAP and Saporito contend that even li' NEAP does not have organizational standing in its own right either !
through its own internat or through its members, NEAP or i
Saporito should have been granted discretionary intervention by- '
the Board. The Board has this_ authority under.the guidelines of r
10--C.F.R. 2.174.
It is to be noted that public participation through' intervention is a positivo f actor in the licensing process and that intervenors perform a valuable function 'and are to be complimented and encouraged. 2.irginiA,_ Electric and Power l Cercany (North - Anna Nuclear Power Station) , ALAB-256, 1 NRC 10 t (1975), and ' consolidated Edison comeany (Indian- Point Nuclear '
Generating Station, No. 2), ALAB-243, 8 AEC 850 (1974).
-As to discretionary intervention,-factors-in favor of such .
intervention include:
- 1) the extent co which the petitioner's participation may reasonably -be expected to assist in developing a sound
- record, 2)- the nature and extent of' the petitioner's property, _i financial, or other interest in the proceeding, and 3). the - possible effect. on the petitioner's interest of any-order which may be entered, r
l' L
.53
l ractorc against intervention includet >
- 1) availability of other neans whereby the petitioner's interests will be protected,
- 2) the extent to which the petitioner's interests will be represented by existing parties, and
- 3) the extent to which the petitioner's participation will inappropriately broaden or delay the proceeding.
See Eqrtland General Electric Company (Pebble Springs
!iuclear Plant, Units 1 and 2), ggril, 5 tiRC 1418; Duke Power C.;~rany, (Oconee fluclee.r Station), purra, 9 liRC 90; 14uclegr Encineerina company (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 tiRC 737 (1978), at 743-44; and Detroit Edison comoany (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 tiRC 381 (1978), pp. 387-89.
As was noted in Eortland GenetALEleqtric Company (Pebble Springs), at p. 614-616, the Commission is entitled broad discretion in determining tite extent of public participation allowable beyond that of parties who have an absolute right to intervene. The court "have encouraged administrative agencies to adopt creative approaches to maximizing productive participation in their proceedings." Citing Office of M,nunication _ of United Chursh of Christ v. FCC, 359 F.2d 994 (D.C.Cir. 1966).
l The Commission enould permit community representatives to participate in order to give the Commission the assistance that 54 l
l l' - - , ,- .
it needs in vindicating the public interest. In Northern States Eover Coreanv, (Prairie Island Nuclear Generating plant, Units 1 and 2), CL1-72-1, 1 NRC 1 (1975), (noted by P_ortland franeral), it was stated: ky
...we wish to underscore the fundamental importance of meaningful public participation in our adjudica-tory process. Such participation, performed in the public interest, is a vital ingredient to the open and full consideration of licensing issues and in establishing public confidence in the sound discharge of the important duties which have been entrusted to us.
Thus, there should be liberal interpretation not only as to intervention as of right, but also as to discretionary intervention. Even the identified factors as to discretionary intervention are not the only factors.
Portland General notes that as a general matter we would expect practice to develop, not through preceder t, but through attention to the concrete facts of particular situacions. Permission to intervene should prove moro readily available where petitioners show significant ability to contribute on substantial issues of law or fact which will not otherwise be properly raised or presented, set forth these matters with suitable specificity to allow evaluation, and demonstrate their importanco and immediacy, justifying the time necessary to consider them.
Under these forceful guidelines for discretionary intervention, and considering the factors, is it evident that the Board erred here in declining such intervention either to j
Saporito or to NEAP. By the Board's own ruling, NEAP had no other available avenue of standing but discretionary. Further, neither the NRC Staff nor the Licensee challenged NEAP's repeated assertions in many documents that there were no other 55 l
l
7 .p ..
w-
.: V i
intervenors, and thus no other parties to advance _the interests and contentions being presented by NEAP and Saporito.
Further, . the Board determined to accept five of the f remai.iing Contentions that _ had been raised in NEAP's Amended -
Petition. Although the Board in its most recent Memorandum and Order sought to consider exercising sua sconte authority over '
these admitted Contentions,- it is plain _ that the Board could
- just as well have extended discretionary standing to NEAP.
In the present posture of this matter, NEAP's Contentions now- before the Board will have no advocate. It is difficult to determine - how these Contentions, which relate to the safe and
- proper. operation - of Licensee's Plant under the proposed TS revisions, _will be fully and .f airly adjudicated before the Board.
It is thus difficult to determine how the interests of justice and of public health will be addressed in the present
. proceeding with- the current arrangement of parties. The intereste of justice,. f airness, and public health are better served by participation of NEAP or Saporito as an intervenor.
Further, it was acknowledged that Saporito is in a unique position to argue .these contentions, with his technical background and his seven years of experience as a former employee of Licensee, working at this very Plant. Although the Board found Saporito did not have certain expertise and
' technical skill, it is clear the Board has an interest -in fairly ~considering the Contentions it has admitted.
56 e
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_+
o o NEAP's participation would make a valuable contribution to the license amendment process here, which is a primary factor for discretionary intervention. HEAP's status and purpose place it in a' unique position to assist the Board and the Commission in vindicating the public interect. The Bor.rd thus erroddliNe denying discretionary intervention.
CONCLUSION THEREFORE, Appellants Nuclear Energy Accountability Pro]ect (NEAP) and Thomas J. Saporito, Jr. respectfully request of this Board that it REVERSE the decision of the Atomic Safety and Licensing Board.
RESPECTFULLY FUBMITTED, Billie Pirner Garde September 5, 1990 57
. .t .
. _ . - . - . _ . . _ _ _ _ . _ . _ - _ - __ ___ _ -m._ __m . _ _ . _ . . _ . _ . _ _ . _ . _
j.-..:
~
e
- bh t" 1.tig At 24 P1 :30 UNITED STATES OF AMERICA
~ NUCLEAR REGULATORY COMMISSION- .-i :i>
BEFORE THE COMMISSION b9' 'b
- ATOMIC SAFETY AND-LICENSING APPEAL' BOARD-In the Matter of FLORIDA POWER AND LIGHT Docket No. 50-250 OLA-5 COMPANY 50-251 OLA *
-(Turkey Point Plant, Units 3 and 4) :- ASLBP No. 90-602-01-OLA-5
-CERTIFICATE OF SERVICE I' hereby ; certify : that copies of the following. document 1990:
in the-above-captioned proceeding, dated September ,
BRIEF FOR APPELLANTS NUCLEAR ENERGY
-ACCOUNTABILITY PROJECT fNEAP) AllD THOMAS J. SAPORITO. JR. ,
l were served on the _ persons designated - below by regular mull, postage: prepaid,-on this date: ,
The Honorable Thomas-S. Moore,-Chairman Administrative Law- Judge- -
Nuclear Regulatory Commission
- Atomic Safety;and Licensing Appeal Board Panel EhN-#529
.-Washington', DC 20555 Howard,A.-Wilber:
Administrative Las Judge Nuclear ~ Regulatory? Commission Atomic Safety .and Licensing Appeal Board Panel EWW:#529 Washington, DC'20555 G. Paul-Bollwerk,-III, Admin'istrative Law Judge Nuclear. Regulatory Commission-Atomic.. Safety and Licensing Appeal Board Panel EhM #529 Washington,:DC 20555 1
.- . ~ . _ . . - _ . _ _ _ . . ._ _ - _..-. - -_.,. _ _ . . _ _ ,-. _ _ __. . _ _ . ~ , _ ,,,._...-_ .__.m . - _ - . ~ _ , _
. .. a The Honorable Peter B. Bloch, Chairman Administrative Law Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20005 The Honorable Dr. George C. Anderson Administrative Law Judge 7719 Ridge Drive, N.E.
Seattle, WA 98115 The Honorable Elizabeth B. Johnson Administrative Law Judge Oak Ridge National Laboratory P.O. Box 2008 Bethel Valley Road, Building 3500 Mail Stop 6010 Oak Ridge, TN 37831 Atomic Safety and Licensing Board Panel Adjudicatory File Docketing and Service Branch U.S. Nuclear Regulatory Commission Washington, DC 20555 Thomas J. Saporito, Jr.
Executive Director Nuclear Accountability Project P.O. Box 129 Jupiter, FL 33468-0129 M ice E. Moore, Esq.
Patricia A. Jehle, Esq.
Office of General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 Richard Goddard, Esq.
Regional Counsel U.S. Nuclear Regulatory Commission, Region II 101 Marietta Street, NW #2900 Atlanta, GA 30323 John T. Butler, Esq.
Steel, Hector & Davis 4000 Southest Financial Center Miami, FL 33131 2
) ,e
- 1 l
Harold F. Rois Newman & Holtzinger, P.C.
1615 L. Street NW, Suite 1000 ,
Washington, D.C. 20036 b
Billir 'irner Garde Hardy hilutin & Johnny ,
500 Two Houston Center Suite 500 Houston, TX 77010 Dated: September 5, 1990 1
l 3