ML20148T078
| ML20148T078 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 11/08/1978 |
| From: | Mcgarry J DUKE POWER CO. |
| To: | |
| References | |
| NUDOCS 7812040298 | |
| Download: ML20148T078 (13) | |
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UNITED STATES OF AMERICA NOV 91978 >
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UUCLEAR REGULATORY COMMISSION w~
In the Matter of
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DUKE POWER COMPANY
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Docket No. 70-2623
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(Amendment to Materials
)
i License SNM-1773 for Oconee
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Nuclear Station Spent Fuel
)
Transportation and Storage at )
McGuire Nuclear Station)
)
APPLICANT'S MEMORANDUM OF LAW ON PETITIONER NATURAL RESOURCES DEFENSE COUNCIL'S STANDING At the October 24, 1978 prehearing conference, discus-sion focused upon, _ inter alia, the standing of Petitioner Natural Resources Defense Council (hereinafter referred to i
as NRDC) (Tr. 25-54).
The gravamen of such discussion was whether NRDC need furnish the name of at least one of its members, who lives or conducts substantial activities in reasonable proximity to the activity identified in the appli-cation and whose interest may be affected. -1/
Simply put, the question is, must NRDC present the name of at least one mem-ber who would have standing in his/her own right. -2/
The Board requested, and the affected participants agreed, that this issue be briefed (Tr. 55-58).
The following portions 1/ Even if specific individual petitioners are identified, a generalized harm to those individuals is not sufficient.
They must demonstrate a " distinct and palpable harm".
Transnuclear, Inc.; CLI-77/24, 6 NRC 525, 531 (1977).
2/ The basic requirements concerning intervention are dis-cussed in Applicant's September 5, 1978 Answer of Applicant to Petitions to Intervene which is incorporated herein by reference.
e' O298
. of this memorandum discuss the applicable law on the matter.
With respect to determining intervention as a matter of right, the Commission has stated that " contemporaneous judicial concepts of standing should be used". (footnote omitted.)' Portland General Electire Company, et al. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 614 (1976). Accordingly, initial attention is focused upon judicial precedent.
It is well settled that an organization may gain stand-
'ing to intervene based on injury to itself or to its members.
Warth v. Selldin, 422 U.S.
490 (1975); National Motor Freicht Assn.
- v. United S,tates 372 U.S.
349 (1963); TVA (Watts Bar Nuclear Plant, Units 1 and 2) ALAB-413, 5 NRC 1418 (1977).
It is also settled that with respect to national environmental groups such as NRDC, standing is derived from injury in f act to individual members.
Sierra Club v.
Morton, 405 U.S.
727 (1972).
Standing in this representative capacity turns on "whe-ther the organization has established actual injury to any of
[its]... members" (emphasis added).
Simon v.
Eastern Kentucky j
Welfare Rights Organization, 426 U.S.
26, 40 (1976).
Repre-sentational standing is not founded on a less rigorous stan-dard than individual standing- "the possibility of...repre-sentational standing...does not eliminate or attenuate the...
requirement of a case or controversy."
Warth v.
- Seldin, supra, at 511.
/
In Sierra Club v. Morton, supra, the Court held that an organization which failed to allege facts showing its members to be adversely affected lacked standing to maintain the action.
Specifically, the Court stated:
"Nowhere in the pleadings or affidavits did the Club state that its members use Mineral King for any pur-pose, much less that they use it in_ any way that would be significantly affected by the proposed actions of the respondents.
"The Club apparently regarded any allegations of individualized injury as superfluous, on the theory that this was a 'public' action involving questions as to the use of natural resources, and than the Club's longstanding concern with and ex-pertise in such matters were sufficient to give it standing as a ' representative of the public.'
This theory reflects a misunderstanding of our cases involving so-called 'public actions' in the area of administrative law. (footnotes omitted]
"But a mere ' interest in a problem,' no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization
' adversely affected' or ' aggrieved' within the mean-ing of the APA. [405 U.S.
at 735-36, 739.]"
With reference to the issue at hand, the Court in recognizing that standing has been conferred upon organiza-tions that have " demonstrated an organizational interest in the problem of environmental or consumer protection" stated that
"(i]n most, if not all, of these cases, at least one party to the proceeding did assert an individual-ized injury either to himself or, in the case of an organization, to its members. [ Sierra Club v. Morton, 405 U.S.
at 739, n. 14. ] "
j
j The Commission has likewise addressed the question of whether an organization which seeks to intervene to vindicate broad public interests of alleged concern to its members or contributors may be granted standing.
See Allied General Nuclear Services, et al.,
(Barnwell Fuel Processing and Storage Station), ALAB-328, 3 NRC 420, 421-23 (1976) wherein the Licensing Board's order denying the American Civil Libe.
ties Union of South Carolina intervention on the basis of its failure to particularize how the interests of one or more of its local members might be affected, i.e.,
its failure to supply affidavits from its members which state what their con-cerns are and why they wish the organization to represent them, was affirmed.
More recently, the Appeal Board denied the in-tervention petition of an organization for lack of standing.
Nuclear Engineerir.g Co., Inc. (Sheffield Low-level Radioactive Waste Disposal. Site) ALAB-473, 7 NRC 737 (1978).
In doing so, the Appeal Board affirmed the legal rationale for the rejection of the ACLU petitien in Barnwell, supra, and applied that rationale in Sheffield.
Lacking in Barnwell and Sheffield, as here, was the identification and particularization of a specific injury to specific members of an organization alleged to result from the proposed licensing action.
The desire to vindicate broad public interests said to be of particular con-cern to the organizations and their members or contributors was held to be legally insufficient to confer. standing.
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i An examination of other NRC cases reflects a consistency in the Commission requirement that individual members must be identified where representational standing was questioned.
In Pennsylvania Power & Light Company, et al.,
(Susquehanna Steam Electric Station, Units 1 and 2) Docket Nos. 50-387, 50-388, the Licensing Board, in its October 26, 1978 Memo-randum and Order stated:
"Where the petitioner is an organization purporting to represent the several interests of its members, it must identify at least one of its individuals members with an interest in the proceeding who wishes to be represented by the organization.
Allied-General Nuclear Services (Barnwell Fuel Receiving and Stor-age Station), ALAB-328, 3 NRC-420,-422-23 (1976);
Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Units 1. and 2), ALAB-136, 6 AEC 487, 489 (1976); Ducuesne Light Co.
(' Beaver Valley Power Station, Unit No. 1), ALAB-109, 6 AEC.243, 244 n.
2 (197 6). "
The Licensing Board's Order of July 27, 1978 in Portland General Electric Company, et al. (Trojan Nuclear Plant),
Docket No.50-344SP exemplifies the requirement not only to identify individuals, but to establish that the organization is authorized to represent them.
Therein, it is stated that
"[t]he Columbia Environmental Council (CEC) filed its petition on June 19, 1978, and an amended petition was filed by its attorney at the prehearing confer-ence.
The amended petition included affidavits from eight of its members to establish the requisite in-terest, how it would be affected, and authorizing CEC to represent them. [ footnote omitted]"
See also Wisconsin Public Service Corporation, et al. (Kewaunee Nuclear Power Plant) Docket No. 50-305, Memorandum and Order of the Licensing Board dated July 12, 1978 wherein reference is made to the identification of several members of an organi-
zation; Long Island Light Company (Shoreham Nuclear Power Station, Unit 10) LBP-7 7-11, 5 NRC 4 81, 4 8 2-3 (1977) wherein the Board approved a stipulation that OHILO (petitioner) pro-duce an affidavit of an " appropriate" member; Duquesne Lighg Company (Beaver Valley Power Station, Unit No. 1) ALAB-109, 6 AEC 243, 244 fn. 2 (1973) wherein the Board indicated "at the very least" the organization should have named a member who lived in the proximity and whose interests were affected.
In-deed, the case relied upon by NRDC at the prehearing conference (Tr. 49), Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 NRC 328, 330 (1976) makes reference to affidavits of individual members of the petitioning organization.
Thus, without specific identification of the individuals which NRDC alleges to represent, and without a particulari-zation of how the interests of those individuals might be adversely affected in this proceeding, the NRDC petition to intervene is defective and should be denied.
To overcome the above clear line of cases, NRDC argues that the Supreme Court's decision in NAACP v. Alabama, 357 U.S 449 (1958) is dispositive (Tr. 37).
In that case, the C'ourt ruled that the withholding of membership lists in cer-tain instances was proper when such disclosure may have the effect of curtailing constitutional freedoms.
It is important to note that the Supreme Court did not hold that membership lists in all cases were entitled to privilege against dis-closure.
Rather, the Court concluded that " Alabama has fallen short of showing a controlling justification for the deterrent
' effect on the free enjoyment of the right to associate which disclosure of membership lists is likely to have".
Id. at 466. -3/
In a later case, the Court in essence endorsed this balancing test by stating, "[w] hen it is shown that State action threatens significantly to impinge upon constitutionally pro-tected freedom, it is the duty of the court to determine whether the action bears a reasonable relationship to the achievement of the governmental purpose asserted as its justi-fication". (emphasis added).
Bates v. Little Rock, 361 U.S.
516, 525 (1960).
See also Kusper v. Pontires, 414 U.S.
51, 58-59 (1973) (when pursuing a legitimate state interest, means unnecessarily strict cannot be used); Communist Party v.
S.A.C. Board, 367 U. S.1, 91 (1961) (weigh the impediments against value to public which the regulation achieves).
Applicant submits that the rationale for membership i
identification in litigation invclviag.[dational environmental for.th in Sierra- {4;gg, sdpra.
Accordingly, this groups was set Board is not faced with making its own balance of the con-siderations supporting disclosure or against significant im-pingement'on fundamental freedoms (as was the case in Alabama).
Rather, this Board may rely upon the Supreme Court's resolution i
of the matter.
-3/ The Court's decision turned on whether " Alabama has demon-strated an interest in obtaining the disclosures it seeks from petitioner which is sufficient to justify the deterrent effect which we have concluded these disclosures may well have on the free exercise by petitioner's members of their constitutionally protected right of association" ' {d.,
at 463, J
In Sierra Club, the Supreme Court recognized that tz:a potential harm to society from generalized special interest litigation is great.
Specifically, the Court stated that
"[t]he requirement that a party seeking review must allege j
f acts showing that he is himself adversely affected... serves as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome" (emphasis added).
Sierra Club v.
Morton, supra, 405 U.S.
at 740.
See also Duke Power Company v.
Carolina Environmental Study Group _
U.S.
57 L.Ed. 2d. 595, 615-616 (1978) wherein the Supreme Court re-cently said, "We have... narrowly limited the circumstances in which one party will be given standing to assert the legal rights of another. '(E]ven when the j
plaintiff has alleged injury sufficient to meet the ' case or controversy' requiremant, this Court has held that the plaintiff genera.ly must assert his own legal interest, and cannot rest his claim to relief in the legal rights or interests of third parties' [ citing Warth, supra; other citations omitted]....There are good and sufficient reasons for this prudential limitation on standing when i
rights of third parties are implicated--the avoid-ance of the adjudication of rights which those not before the Court may not wish to assert and the assurance that the most effective advocate of the rights at issue is present to champion them. (Citing Singleton v. Wulff,428 U.S.
106, 113-114 (19 76) ]. "
With respect to standing in general see Schlesinger v.
Reservists to'Stop the War, 418 U.S.
208, 221 (1974) wherein the Court stated that the requirement of standing "further serves the function of ensuring that such adjudication does not take place unnecessarily".
See also Warth v.
Seldin, 422 U.S.,
supra,at 500 wherein the Court stated:
"without such limita-
_9 tions the courts would be called upon to decide abstract questions...even though... unnecessary...".
In sum, the effect of allowing the NRDC to establish standing based on less than a direc+ showing of the affected
__ __ member (s) it purports to represent would be to abolish the 4/
j concept of " representational standing".~
In an attempt to bolster its position, NRDC contends that non-disclosure "is necessary to ' protect our donors' expectations of privacy,' because it may ' inhibit further participation of active donors, and have a chilling effect on potential future support".
Affidavit of October 19, 1978 by John H. Adams (Tr. 25-26).
NRDC asserts that such alleged " restraint on freedom of association" is prohibited 1
by NAACP v.
Alabama, supra. (Tr. 37).
A reading of Alabama singly does not support NRDC's position.
In that case the
- 4. '
.. s. -
Court found that
"(p]etitioner has made an uncontroverted showing that on past occasions relevation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifesta-tions of public hostility. [21. at 462.]"
4/ Applicant notes that its position requiring identification of membership is not merely an academic exercise.
Appli-cant maintains that it is entitled to verify and test the interest of the membership of NRDC through discovery.
Failure to identify at least one member impairs this right.
_lo-In the instant case there is no difinitive evidence to indi-cate that harm has or will result; rather, there is simply 5/
~
an articulated fear of harm.
In sum, NRDC's reliance on NAACP v.
Alabama, suora, is misplaced.
Further, the remote possibility of harm is cer-u inly outweighed by the benefit to society in not over-
.urdening administrative functions with unwarranted adjudi-cation.
For the above stated reasons, Applicant submits that NRDC has failed.to comply with the judicial requirements for standing and thus is not entitled as a matter of right to
\\
1/ The S'upreme Court in Buckley v. Valeo, 424 U.S. 1 (1976) i acknowledged that there are governmental interests that outweigh the possibility of infringement of individual rights.
Id.,
at 66.
Specifically, the Court stated that "(i]n determining whether these interests are suf-ficient to justify the requirements we must look to the extent of the burden that they place on individual rights".
Id.,
at 68.
In Bucklev, the issue involved forced dis-cTosure of contributions to political campaigns.
The Court concluded that disclosure was required even thouch
"(i]n some instances fear of reprisal may deter contri-butions to the point where the movement cannot survive".
Id., at 71.
In addition, the " articulated fear" of harm resulting from disclosure was held insufficient to re-strain disclosure of names of people using Class II drugs--potentially more damaging than the harm resultinc from disclosure in the instant proceedings.
Whalen v. 5ce, 429 U.S.
589, 600 fn. 27 (1977).
Moreover, in Youncer
- v. Harris, 401 U.S.
37, 51 (1971), the Court stated that "the existence of a ' chilling effect' even in the area cf First Amendment rights, has never been considered a suf -
ficient basis, in and of itself, for prohibiting state action".
Further, the Court stated, "it is well settled that the (action) can be upheld if the effect on speech is minor in relation to the need..." for the action.
Id.
See also Schneider v.
State, 308 U.S.
147 (1939); Cantwell
- v. Connecticut, 301 U.S.
296 (1940); Mine Workers v.
Illinois Bar Association, 389 U.S. 271 (1967).
9 11-intervene in this proceeding.
With respect to discretionary intervention, Applicant hereby withdraws its opposition to such which is contained in the September 5, 1978 Answer of Applicant to Petitions to Intervene.
Respectfully submitted, J. Michael McGarry, III Of counsel:
William L.
Porter, Esq.
Associate General Counsel Duke Power Company November 8, 1978 4
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
DUKE POWER COMPANY
)
Docket No. 70-2623
)
(Amendment to Materials
)
License SNM-1773 for oconee
)
Nuclear Station Spent Fuel
)
Transportation and Storage at )
McGuire Nuclear Scation)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Memorandum of Law on Petitioner Natural Resources Defense Council's Standing" dated November 8, 1978 in the captioned matter, have been served upon the following by deposit in the U.,'ted i
Stater mail this 8th day of November, 1978.
Robert M.
Lazo, Esq.
Mr. Jesse L.
Ri:
Chairman, Atomic Safety President and Licensing Board Carolina Envirc:
,tal U.
S.
Nuclear Regulatory Study Group Commission 854 Henley Place Washington, D.
C.
20555 Charlotte, North Carolina 28207 Dr. Emmeth A.
Luebke Edward G.
Ketchen, Esq.
Atomic Safety and Licensing Counsel for NRC Regulatory Board Staff U.
S.
Nuclear Regulatory Office of the Executive Legal Commission Director Washington, D.
C.
20555 U.
S.
Nuclear Regulatory Commission Washington, D.
C.
20555 Cr. Cadet H. Hand, Jr.
Director William L.
Porter, Esq.
Bodega Marine Laboratory Associate General Counsel of California Duke Power Company Post Office Box 247 Post Office Box 2178 Bodega Bay, California 94923 Charlotte, North Carolina 28242
. Shelley Blum, Esq.
Richard P. Wilson 418 Law Building Assistant Attorney General 730 East Trade Street State of South Carolina Charlotte, North Carolina 2600 Bull Street 28202 Columbia, South Carolin-29201 Anthony Z. Roisman, Esq.
Chairman, Atomic Scfety and Natural Resources Defense Licensing Board Panel i
Council U.
S. Nuclear Regulatory
)
}'
917 15th Street, N.W.
Commission Washington, D.
C.
20005 Washington, D.
C.
20555 Brenda Best Chairman, Atomic Safety and Carolina Action Licensing Appeal Board 1740 E.
Independence Blvd.
U.
S. Nuclear Regulatory Charlotte, North Carolina Commission 28205 Washington, D.
C.
20555
]
k Jeremy Bloch Mr. Chase R.
Stephens Safe Energy Alliance Docketing & Service Section 1707 Lombardy Circle Office of the Secretary Charlotte, North Carolina U.
S.
Nuclear Regulatory 28203 Commission Washington, D.
C.
20555
)
J.
Michael McGarry, III