ML20245C207
| ML20245C207 | |
| Person / Time | |
|---|---|
| Site: | Erwin |
| Issue date: | 06/01/1987 |
| From: | Malsch M NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20245C210 | List: |
| References | |
| FOIA-89-291, TASK-AIA, TASK-SE SECY-87-122A, NUDOCS 8707140077 | |
| Download: ML20245C207 (14) | |
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0 ADJUDICATORY ISSUE _. .
June 1, 1987 .
SECY-87-122A I
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For The Commissioners -
j From: Martin G. Malsch
. Deputy General Counsel for Licensing and Regulation j,
Subject:
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" NFS LTD'S PROPOSED PURCHASE OF THE STOCK k OF NFS,'INC.--AND OCAWIU'S REQUEST FOR HEARING ,
i Purpcse: To advise the Commission of OCAWIU's latest filing and obtain approval of the attached order.
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Background:
In SECY-87-122 dated May 13, 1987, the Commission was advised of NFS, Ltd's proposal to purchase the stock of NFS, l Inc. and the March 9 and April 29, 1987 i requests by the Oil, Chemical and Atomic Workers ' International Union (" Union")
for a hearing'on the proposed purchase.
As noted in our earlier paper, the Union's submittals of March 9 and April 29, 1987 vere by no means clear in establishing what type of proceeding was sought or contemplated by the Union. .
Counsel for NFS, Ltd. in their May 5, 1987, opposition to the Union's hearing requests (see Attachment 5, SECY-87-122, May 13, 19T7T isolated this and other perceived inadequacies to argue that the Union had failed to demonstrate its entitlement to a hearing.
Contact:
Carolyn F. Evans, OGC l- x41493 l' infation in this reccrd was de!cted b I m ucordance vsth the reedom of Information \
% Act exemptions
$$hff OIA. 89-2-7/ _
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.. On May 26, 1987, the Union submitted a response (Attachment 1) to NFS, Ltd's ,
May 5,.1987 opposition to the Union's qf
request for a hearing. The. Union -b elaborated on certain matters and specifically indicated that it was requesting a hearing pursuant to Section 189a.
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. . . . . The discussion that follows .
addresses the underlying rationale of 1 the proposed memorandum and order.
Discussion: For the most part, the proposed draft is self-explanatory. However, several points warrant further discussion here. v ))N
In its May 26, 1987 response'the Union elaborated on several matters that had previously been unclear. Specifically, the Union indicated that it was requesting a spatutory hearing on behalf of its members pursuant to Section 189a. The Union also explained the
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' The draf t memorandum and' order addresse's - O rnis matter. 'N l
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" issues" of concern regardino the propcsed stock purchase. These issces,
. which relate exclusively to financial matters, include NFS, Ltd's capability )
to provide future financial protection i i to all individuals exposed to the l l processes produced at the facility, to j I fund future health claims and vested l retirement benefits, and to insure the continued existence of imbs in +ha -- _ it conssunity4 (see Attachment 1, SECY-87-122, May 13, fs 1317) (but not in its filing recuesting a statutory hearing) expressed as a concern NFS, Ltd's financial ability to assume responsibility for decommissioning and decontamination at the appropriate time -
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Recommendation: Approve the attached memorandum anc ,
order.
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Martin G. !!alsch Deputy General Ccunsel for Licensing and Regulation Attachments:
- 1. Union's reply to NFS, Ltd's opposition to hearing reonest
- 2. Draft memo and revised order Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Monday, June 8, 1987.
This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of June 8, 1987. Please refer to the i appropriate-Weekly. Commission Schedule, when published, for a specific date and time.
DISTRIBUTION: I Commissioners OGC (H Street)
OI OIA GPA REGION II EDO OGC (MNBB)
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ATTACHMENT 1 l i
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In'the Natter of: Purchase of Stock !
of.. Nuclear Fuel Services, Inc.
REPLY OF OIL, CMENICAL AND ATONIC WORKERS INTERNATIONAL UNION TO RESPONSE OF NFS SERVICES, LTD.
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RSQUEST FOR REARING BY
- OIL, CHEMICAL AND ATONIC WORKERS INTERNATIONAL UNION On Nay 5, 1987 by letter and supporting brief, NFS Services, Ltd. .(" Purchaser") responded to 011, Chemical and Atomio Workers i
- International Union's ("0CAWIU") request for a hearing pursuant ..
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} to the Atomic Energy Act Section 189(a) and 42 U. S . C.
Section -]
7,\ 2239 in the matter of the proposed purchase of Nuclear Fuels j
Services, Inc. stock. OCAWIU now replies to that response and based on the following argument respectfully requests that the .
Nuclear Regulatory Commission grant a full public hearing in )
Erwin, Tennessee on this matter forthwith.
BACKGROUND Nuclear Fuels Services, Inc., a formerly owned subsidiary of Getty 011 Company and now a wholly-owned subsidiary of Texaco, {
, Inc., produces and fabricates nuclear fuel
- for use in the United States Naval Reactor Program since 1957 at a facility in Erwin, Tennessee. On or about Sunday, April 19, 1987, NFS, Inc.'s parent corporation, Texaco, Inc. Ciled a bankruptcy petition for reorganizing in the United States District Court, Southern District.of New York, Case No. 87-B-20142.
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NFS Services,'Ltd.-(" Purchaser") is the contract purchaser
.of the stock ' of NFS, Inc. from Texaco Producing, Inc., a subsidiary of Texaco, Inc. On February 26, 1987, Purchaser filed with the Nuclear Regulatory Commission a request for approval of its purchase of the stock of NFS, Inc.
OCAWIU by telegram and letter; dated March 9, 1987 and April 2 9', 1987 respectively, requested a hearing in this matter .I pursuant to Section 189(a) of the Ai:omic Energy Act and 42 U.S.C.
Section 2239. OCAWIU is the dominant labor organization representing workers in the nuclear energy field and represents 360 nuclear energy workers employed by NFS, Inc. at its Erwin, Tennessee plant. A vast majority of OCAWIU members who work at the NFS, Inc. plant and their families reside in~ Erwin, Tennessee.
AROUNENT In their Response Brief, Purchaser argue that CCAWIU failed to articulate a basis for standing or to raise relevant issues which would entitle OCAWIU to a public hearing. In addition, !
Purchaser argues - that the Commission must deny the . public a hearing because the purchase agreement expires on June 30, 1987. 1 i
Furthermore, Purchasers contend that the pending bankruptcy proceedings involving Texaco, Inc. require immediate action by the Commission so that NFS, Inc. will not be involved in those proceedings.
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Z. INTERVENTION AS A MATTER OF RIGHT In determining whether a petitioner for intervention in a NRC Domestic Licensing proceeding has alleged an ' interest which
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may be affacted by the proceeding" within the meaning of Section-189(a) of the Atonio Energy Act and Section 2.714(a) of the NRC'e-Rules of Preotica, contemporaneous judicial concepts of standings should be used. P,,p,rtland General Electric Company (Febble 1 Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613 I
'(1976). A two-prong test must be satisfied in order to meet judicial standing requirements: first, one must allege an injury that has occurred or will probably result from the action involved; second, one must ellege an interest arguably within the zone of interest protected by the statute". sierra Club v.
Morton, 405 U.S. 727 (1972)s Wirth v. soldin, 422 Ue s. 490 (1975).
In order to meet the injury-in-fact test, an organization seeking standing must demonstrate that either its organizational interest or the individual interest of at least one of its members may be affected. Where standing is in a representative capacity, the organization must identify at least one member whose interest may be effected. Houston Lichtina and Poner Company. (Allene Creek Nuclear Generating Station, Unit 1) ALAB-535, 9 NRC 377.
Purchaser argues that CCAWIU must identify individual members, provide written authorization from the individual member that CCAW may represent his or her interest and set forth a 3-t #!?ttttt0EDEL +L861498808 L NdSS:t ! 49-9E-S ! OZOL Jefdoselei xoJeX:A9 AN3S
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description of the members' injury.
Purchaser's argument is fatally flawed. Pursuant to~ Federal Labor Law, a representative designated or selected for ' the purposes of collective bargaining by the majo.rity of the employees in a unit appropriate for such purposes, should be the emolusive representatives of all of the employees in auch unit for the purpose of collective bargaining in respect to pay, wages, hours of employment or other conditions of employment (emphasis added) 29 U.S.c. section 159 (1959). OcAWIU needs no written authorization of representation from an individual member.
Furthermore, OcAWIU in its letter dated April 29, 1987 stated that Purchaser has not est forth evidence or information demonstrating that it has sufficient financial. assets to insure OCAWIU utembers and their families of protection required for owners and operators of a high grade nuclear facility. .The nature of this facility mandates that these concerns be met by j owners who have the financial capability of providing the future
\ financial protection to all individuals exposed to the processes produced at this facility.
l In addition, a vast majority of OCAWIU members who work at the NFS, Inc. plant and their families reside, in Erwin, 1 Tennessee. Over the thirty years that NFS, Inc. has operated in Erwin, there has been documented exposures of the work force to
, radiation and other hazards. It is well-esttled that residence
,i l as far away as forty to fifty miles from a reaction may provide a i foundation for standing. Northern States Power Company, (Prairie
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Island Nuclear Generating Plant, Unite 1 and 2), ALAB-107, 6 A.E.C. 188, 193 (1973); Tennessee ve11ev Authority, (Watts Bar Nuclear Plant, Unita 1 and 2), ALAB-413, 5 NRC 1418, 1421 N4 (1977). Where, as here, the residences in question are located well within a forty-mile radius, it is obvious that the requisite interest exists. (see Appendiz 1) Both retirees and presently I employed workers have legitimate interest in present and future j, health claims, the funding of vested retirement benefits and to some extent, the continued existence of. jobs in their community.
Accordingly, OCAWIU meets and exceeds the requirements for intervention by right and should be afforded a full hearing in Erwin, Tennessee.
II. PURCHASER'E ADDITIONAL AROUNENTS Purchaser requeste immediate action by the commission becaue6 their stock purchase agreement expires on June 30, 1987 and bankruptcy pe;>ceedings involving their parent company,
. Texaco, Inc., are pending. This request is not relevant to the determination of the issue of standing and should not be considered.
However, because the pendant bankruptcy proceedings may impact upon the issues of concern to OCAWIU's members in this matter, eli issues surrounding these bankruptcy proceedings should be evaluated before approval of the stock transfer.
III. DISCRETIONARY INTERVENTION i
Intervention is permitted as a matter of discretion i
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11-9 regardloco of a judiciol standing dsctrine if tho Commis0 ion determines that the intervanor may make some contribution to the proceeding.- Portland General Electric Company, (Pobbie Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 614 (1976).
There is no legal impediment preventing administrative agencies from allowing wider participation in their proceedings than is required by statute. Lono Island Lichtina comoany, (Jamesport Nuclear Power Station, Units 1 ,and 2), ALAB-292, 2 NRC 631, 655 (1975). In the landmark case of office of Communication of United Chyrch of Christ v'. FCC, 359 F.2d. 994,105-106 (D.C. Cir.
1966), then Judge serger stated:
"The Commission should be accorded broad discretion in establishing and applying rules for such public participation, including rules for determining which community representatives are to be allowed to participate and how many are reasonably required to give the Commission the assistance it needs in vindicating the public interest.
The usefulness of any particular petitioner for intervention must be judged in relation to other petitioners and the nature of the claims it asserts as a basis for standing."
Furthermore, in Northern States Power ComDany, (Prairie Is16:td Nuclear Generating Plant Units 1 and 2), CLI-75-1, 1 NRC 1
1, 2 (1975), the e m iselon stated that: .
...we wish to underscore the fundamental importance of meaningful public participation in our adjudicatory 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. " ,
In arriving at the determination that intervention should be granted on a discretionary basis, the Commission is guided by the following facters: (1) the extent to which the petitioner's 6-I 8 #:tttttt980EL +1981198808 ! NdLS:t 49-9E-9 ! DE0L J81doselei xoJeX:A9 iNES !
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participation may reasonably be expected to assist in developing a sound record; (2) the nature and extent of the petitioner's property, financial or other interest in the proceeding; (3) the p o s s i b l e' e f f e'c t of any order which may be entered in the 1
proceeding. in the petitioner's interest. The commission will I
also considers (1) the availability of other means whereby petitioner's interest will be protected; (2) the extent to which ;
the petitioner's interest will be represented by existing parties; (3) the extent to which petitioner's participation will inappropriately brcaden or delay the proceeding. See 10 C.F.R. 2.714(a) and 10 C.F.R. 2.714(d) (1986).
The presence in Erwin, Tennessee of-a facility which produces nuclear fuels constitutes an on-going and significant concern to the citizens of Erwin regarding regulatory j
. j enforcement. The only way these concerne may be addressed is to provide e public hearing to those citizens. OCAW1U requests a
,, public hearing on these matters to fully investigate the effects 1
this proposed stock transfer would have on the significant j i
__ community interest. Since Erwin, Tennessee is a small and l insular community, the Commission must take the utmost care in addressing the effect of the stock transfer on the citizens.
OCAW2U and the citizens of Erwin, Tennessee would make a valuable contribution to the Nuclear Regulatory Commission's decision-making process. Whether this right to contribute is granted under strict judicial standing criteria or on a discretionary basis, we respectfully request that there be no transfer of stock 1
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of'tho Nuclear Fuels Services, Inc. facility and essets until full' public hearings are held in the Erwin, Tennessee area on
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CONCLUSION For the above-stated reasons, OCANIU respectfully ' requeste that the Commission grant a formel public hearing in Erwin, Tennes,see pursuant to 42 U.S.C. Section 2239.
Dated this 26th day May, 1987.
espec .ul y su tted, e sjn W. Mc endreie' f ~ T_
eneral Counsel 011, Chemical and Atomic Workers International Union P.O. Box 2812 Denver, Colorado 80201 (303) 987-2229 .
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Accendix 1 Mike Hampton .
629A Mohawk Drive Erwin,. Tennessee 37650 i Ronnie Lewis - .
P.O. Box 51 Erwin, Tennessee 37650
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.Hubert Metoelf, Jr.-
l P.O. Box 31 Erwin, Tennessee 37650
. Robert Tilson .
Route 2, Box 93 Erwin, Tennessee 37650 Lonnie Tolley Route 3, Box 218 ,
- Erwin,. Tennessee 37650 Wayne Randolph P.O. Box 263 Unaka-View Heights Erwin.. Tennessee-37650
'Curtis aanks.
Rodte 3, Box 1873 Erwin, Tennessee 37650 I
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