ML20062B990
| ML20062B990 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 10/11/1990 |
| From: | Bauser M FLORIDA POWER & LIGHT CO., NEWMAN & HOLTZINGER |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#490-10910 OLA-5, NUDOCS 9010290107 | |
| Download: ML20062B990 (59) | |
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USHRC l 1
'90 0C1 12 NO 53 ]
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.i UNITED STATES OF AMERICA NUCLEAR REOUIATORY CONNISSION ATOMIC marETY mrn -Liemusino appent maman 1
i
)
'In:the Matter of )
) Docket Nes.50-25r OLA-5 :i FLORIDA POWER & LIGHT COMPANY ) 50-251 OLA-5 l
)
(Turkey. Point Plant, -) (Technical Specifications -l Units 3 & 4) ) Replacement)
) =
3 LICEWSEE'S BRIEF IN RESPONSE TO THE NEAP APPEAL OF THE LICENSINO SCARD'S ,
JULY 17,-1990 MEMORANDUM AND ORDER (MOTION TO DISMISS) u ll
[
(
Harold F. Reis Michael A. Bauser James Vigil, Jr.
, Newman & Holtzinger, P.C.
1615 L Street, N.W.
Suite 1000 Nashington, D.C. 20036 (202) 955-6600 Co-Counsel John T. Butler Steel, Hector & Davis ,
4000. Southeast Financial Center !
L Miami, Florida 33131
. (305) 577-2800 j
DR 0 J 20 j
<3 3
October 11, 1990' UNITED STATES OF AMERICA NUCLEAR RBOUIATORY. COMMISSION ATOMICRETY AMD LICEMBIMG.. APPEAL BQ&BD
)
In the Matter of )
) Docket Nos. 50-250 OLA-5
-FLORIDA' POWER & LIGHT COMPANY ) 50-251 OLA-5
)
(Turkey Point Plant,- ) (Technical Specifications Units 3 & 4) ) Replacement)
)
LICENSEE'S BRIEF IN RESPONSE TO THE' NEAP APPEAL OF THE LICENSING BOARD'S JULY 17, 1990 MEMORANDUM AND-ORDER (NOTION T0-DISMISS)
Harold F. Reis Michael A. Bauser James Vigil, Jr.
Newman & Holtsinger, P.C.
- 1615 L Street, N.W.
Suite 1000 Washington, D.C. 20036 (202) 955-6600 Co-Counsel
" John'T.-Butler Steel, Hector & Davis.
4000 Southeast Financial Center Miami, Florida 33131 (305) 577-2800:
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TABLE OF CONTENTS EAGA i
( ' AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . .= iii INTRODUCTION .. . . . . . . . . . . . . . . . . . . . . . . . 1 ;
I. THE PROCEEDINGS BEFORE THE LICENSING' BOARD . . . . . . 2- '
i II.- ARGUMENT . . . . . . . . - . . . . . . . . . . . . . . . 16 A. The Licensing Board's Denial of Organizational f StandingLto NEAP in an Institutional' Capacity t Was Proper and Should Be Affirmed . . . . . . . . 16 t
- 1. Generally applicable legal standards pertinent to organizational standing ,
in an institutional capacity . . -. . . . . . 16
- 2. NEAP's present argument that it is a-local organization with the !
narrow. goal:of monitoring nuclear
' plants in Florida does not entitle ;
it to standing in an institutional t capacity . . . . . . . . . . . . . . . . . . 19 B.- The Licensing Board's Denial ofcStanding to NEAP in a Representational Capacity Was
. Proper and Should Be-Affirmed . . . . . . . . . . 25 1.- General principles'of representational standings. . . . . . . . . . - . . . .- . . . . 26- ,
- 2. For an organization to. establish representational standing through .
one of its members,,that individual !
must possess the " indicia of membership" . . 28
- 3. Failure to establish " indicia of membership" is an independent basis for denying an organization representational standing through one of its members . . . . . . . . . . . . . . . 32
'4. NEAP's " members" do not possess the requisite " indicia of membership" . . . . . 35 1-l w- 9 Fr
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L -a. NEAP cannot support its claim to representational. standing on the basis of-Ns. Brezenoff's statement .. -35
- b. NEAP'is not a traditional membership L type organization and the Brezenoff L
affidavit' fails to demonstrate she i possesses the requisite " indicia of membership" . . . . . . . . .. . . . . 36-L c. None of the other individuals identified by' NEAP possess the requisite " indicia-of membership" . . . . . . . . . . . . 40-
- d. ' Additional arguments cited in Section II H
of' NEAP's Brief bear no relevance to the issue'of NEAP's representational '
f ' standing .. . . . . . . . .. . . . . .
42 C. The. Licensing Board's~ Denial of DiscretionaryL !
Standing to NEAP was Proper and.Should Be Affirmed . . . . .:. . . . . . . . . . . . . . . 44 III.- CONCLUSION . . . . . - . . . . . . . . . . . . . .. . . 48 T
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7 L-Table of authorities
,ag.,e, l c....
t-American Legal Foundation v. Fcc, 808 F.2d 841(D.C. Cir.'1987) . . . . . 17, 19, 27, 30, 34 -i Black Faculty Ammociation of Mesa college v,.
-San Diego community college District, 664 F.2d 1153 (9th Cir. 19P1) . . . . - . . . . . . . . . 22 clonlara. Inc. v. Runkel, ,
722 F. Supp. 1442 (E.D. ;41ch. 1989) . .. . . . . . 30, 39 i Diamond v. Charles, 476 U.S. 54 (1986) . . . . . . . . . . . 26 FEC-v. National Right to Work comm., 459 U.S. 197 (1982) . . 31 Glover River Organization v.
U.S. Dep't. of the Interior, 675 F.2d 251 (10th Cir. 1982) . . . . . . . . . . . . . 22 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) . . . .. -
19 Health Research Group v. Kennedy,
-82 F.:R.D.-21 (D.D.C. 1979) . . . . . 29, 30, 32, 33, 34, 39-Huebner v.~Ochberg, 87 F.R.D. 449-(E.D. Mich. 1980) . . . . . 22 Hunt v. Washington State Apple Advertising comminnion, 432 U.S. 333 (1977) .. . . . . . . . . 28,- 29, 30, 32, 34 Lujan-v. National Wildlife Federation, 110,S. Ct. 3177 (1990) . . . . . . . .. . . . . . . . . . 19 NAACP v. Alabama, 357 U.S.,449 (1958) . . . . . . . . . . . . 28 Q' Hair v. White, 675 F.2d 680 (5th Cir. 1982) . . . . . . 27, 28 Pacific Legal Foundation v. Watt, 1
529 F. Supp. 982, 993 (D. Mont. 1981) . . . . . . . . . 30 Sierra club v. Morton, 405 U.S.
727-(1972) . . . . . . . . . . . . . 18, 19, 21, 22, 23, 24
-Sierra club v. Aluminum Co. of America, 585 F. Supp. 842 (N.D.N.Y. 1984) . . . . . . . . . . 30, 31
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4' r Simnn v. Eastern Kentucky Welfare Rignta organimations, 426 U.S. 26 (1976) . - . . . . . 18, 22 Talacer.nunications Ramsarch & Action cantar v. A11 net C,f,mmunication Servicam. Inc.,
9J6 F.2d 1093-(D.C. Cir. 1986) . . . . . . . . . . . . . 28 Vallev Forge christian college v.
' Americana United for Separation of church and State. Inc.,
454 U.S. 464 (1982) . . . . . . . . . . . . . . . . . . 18 Warth v. Seldin, 422 U.S. 490 (1975) . . . . . . . . 18, 19, 27 NRC Adjudicatory Decisions Allied-General Nuclear Servb;;,gg (Barnwell Fuel Receivir.g and Storage Station),
ALAB-328, 3 NRC 420'(1976)1 . . . . . . . . . . . .- 23, 24 cleveland Electric Illuminating Co.
(Perry. Nuclear Power Plant, Units 1 & 2),
LBP-81-24, 14 NRC 175 (1981) . . . . . . .:... . . . . . 44 consolidated-Edison Co. of New York (Indian Point, Unit No. 2)/
Power Authority of the State of New York (Indian Point, Unit No. 3),-LBP-82-25, 15 NRC 715 (1982) . . . . . . . . . . . . . . ... . 23, 29 Detroit Edison Co.
(Enrico Fermi Atomic Power Plant, Unit No. 2),
ALAB-470, 7 NRC 473 (1978) . . . . . . . . . . . . . . . 27 Duke Power Co.
(Catawba Nuclear Station, Units-1 and 2),
1 ALAB-813, 22 NRC 59 (1985) . . . . . . . . . . . . . . . 21
. Florida Power & Light Co.
(St...Lucie-Nuclear Power Plant),
LBP-87-2, 25 NRC 32 (1987) . . . . . . . . . . . . . . . 44' Florida Power and Light Co. (Turkey Point Nuclear
' Generating Plant, Units 3 and 4),
LBP-90-24, 32 NRC 12 (July 17, 1990) . . . . . . . . passim Florida Power and Light company (Turkey Point Nuclear Generating Plant,
-Units 3:and 4), Memorandum and Order (unpublished)
(April 24, 1990) . . . . . . . . . . . . . . . . 8, 9, 42
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Elkridn' Power and Light connany, (Turkey Point Nuclear Generating Plant, Units 3 and 4) LBP-90-16,.
31 NRC 509-(June 15, 1990) . . . . . . . . 2, 6, 7, 10, 11
-Florida Power and Light company, (Turkey-Point Nuclear Generating Plant, Units 3 and 4), LBP-90-32, slip op.-(Sept. 25, 1990)- . . . . . . . . . . . . . . . 15 Houston Lichtino and Power Co.
(South Texas Project, Units 1 and 2),
ALAB-549, 9 NRC 644 (1979) . . . . . . .. . . . . . . . 27
- Houston Lighting and Power Co.
-(South Texas Project, Units 1 and 2),
LBP-79-10, 9 NRC 439 (1979) . . . . . . . . . . . . 27, 34 Northern States Power Co.
(Pathfinder Atomic Plant), LBP-89-30, 30 NRC 311 (1989) . . . . . . . . . . . . . . . . . . . 25
-Philadelnhia Electric Co. (Limerick Generating Station, j
Units 1 and 2), ALAB-778, 20 NRC 42 (1984) . . . . . . . 21 Portland General Elsetric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC;610 (1976) . . . ... . . . . . . . 16, 17, 18, 26, 45 <
Public Service Co. of Indiana (Marble. Hill Nuclear !
Generating Stittion, Units 1 and 2), CLI-80-10, '
11 NRC 438'(11180) . . . . .. . .. . . . . . . . . 16, 17 Puget Sound Power and Light Co. (Skagit/Hanford
' Nuclear Power Project, Units 1 and 2), LBP-82-74, l g 16 NRC 981 (1982); rev'd on other grounds,- )
ALAB-700, 16 NRC 1329 (1982) . . . ., . . . . . 17, 18, 22 q Tennessee Valley Authority .
(Watts Bar Nuclear Plant, Units 1 and 2),
ALAB-413, 5 NRC 1418 (1977) . . . . . . . . . . 2', 45, 46 Vermont Yankee Nuclear Power Corporation !
.(Vermont Yankee Nuclear Power Station),
LBP-87-7, 25 NRC 116 (1987). . . . . . . . . . . .. . . 17 1
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, ' Statutes. .
Energy Reorganization'Actiof 1974, I section.210, 42 U.S.C. S 5851 .- . . . . - . . . .. . . .- 13 ;
- U.S..CONST.' Art. III'
, . - . . . . . . . . . .. . . . . . . . . 26 4
- Regulations 10 CFR S 2.714 .. . . . . . . . . . . . .. . . > . . . . 5, 12, 26 10 CFR S 2.760a . . . . . . . -, . . . . . . . . ., . . . . . c14
- 10 CFR S'2.762- . . .. . . . . . . . . . . . . . . . . . . . .. 1-10 CFRiS.2.1215(a) . . . - . . . . . . . . . . . -. . . .. . .- 13 Miscellaneous.
Proposed Pollev Statament on Technical Soecification Tmorovements for Nuclear Power Reactors, 52 Fed'.. Reg. 3,788'(February 6, 1987) .. . . . '3 I Fl'orida Power and Licht Co.t Consideration'of Insuance of Amendments to Facility Oneratino i
- Licenses and Opportunity for Hearino',.
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54 Fed.' Reg. 50,295'(December.-5, 1989) . . . . . . . . 2, 3 .,
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1 I UNITED STATES OF AMERICA ,
NUCLEAR REGUIATORY. COMMISSION ,
ATOMIC RAFETY AMD LICEM$1NG APPEAL BOARD
)
..In-the Matter of )
) Docket Nos. 50-250 OLA-5 FLORIDA POWER & LIGHT COMPANY )- 50-251 OLA-5
)
(Turkey Point Plant, ) (Technical Specifications
. Units 3 & 4) ) Replacement)
)
t LICENSEE'S BRIEF IN RESPONSE TO.THE NEAP APPEAL OF THE LICENSING BOARD'S. l JULY 17, 1990 wunanDUM mfd ORDER IMOTION TO Dish M .l INTRODUCTION.
Pursuant to 10 CFR S 2.762, Florida Power & Light Company.("FPL" or." Licensee") hereby submits this Brief in response to:the appeal of the< Nuclear Energy Accountability
.s Project-(" NEAP" or." Appellant") from an Atomic Safety and Licensing Board -(" Licensing Board") Memorandum and 0:: der, dated July 17,J1990,-(" July'17, 1990 Order")1 dismissing NEAP from this: operating license amendment proceeding for lack of standing i
IFlorida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-24, 32 NRC 12 (1990).< The service date of the Memorandum and' Order is July 18, 1990, which also appears- as: its date in the published report. However, the parties have, although not uniformly, largely referred to it as the July 17, 1990 Memorandum and Order. This brief follows the same practice.
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2 to intervene.2
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- 1. THE PROCEEDIMGS BEFORE THE LICEMSING BOARD This proceeding was initiated by-the filing, on e December.27, 1989, of a " Request for Hearing and Petition for !
Leave to Intervene" (" Petition")-by Thomas J. Saporito, Jr., on his own behalf and on behalf of NEAP, in response to a Federal Register notice concerning Licensee's application for the amend-ment of the operating. licenses for Turkey Point Units 3 and 4.
54 Fed.-Reg. 50,295 (1989). The purpose-of the application was to replaceithe then current custom Technical Specifications for [
l' the Turkey Point nuclear units (incorporated in the operating ,
licenses issued in 1972 and 1973 and subsequently amended from time to time).with a set of technical specifications based on the Westinghouse-Standard Technical Specifications.3 The changes 2
NEAP's appellate brief is styled "Brief for Appellants l
Nuclear Energy Accountability Project'(NEAP) and Thomas J.
Saporito."~ However, Mr. Saporito is.not a party to this .
proceeding. By "Notics of Withdrawal from Proceeding" dated April 1, 1990, Mr. Saporito stated he was withdrawing from the-proceeding both as.an individual party and as-the basis upon which NEAP. claimed l representational standing. Treating the notice as a motion, the Licensing Board granted it, and Mr.
Saporito was dismissed as n' party. 31 NRC1509 at 514 (1990).
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- The Licensing Board noted this fact in the July 18, 1990 Order.
32 NRC 13 n.1, 19. 'Further, Mr. Saporito never noticed an appeal from the July 17, 1990 Order which is the subject of this review
-(compare NEAP's Notice of Appeal (July 25, 1990)). Therefore, despite the caption on the brief, only NEAP is a proper party to this appeal.
3 On August. 28, 1990, the NRC issued the requested operating license amendments and also a Safety Evaluation which included a Final Determination of No Significant Hazards Consideration with
. respect to the amendments. San Letter from Gordon E. Edison (continued...)
t were to-be made in accordance "with the NRC and industry E
initiative to standardise and improve" technical specifications for nuclear plants. Saa 54 Fed. Reg. 50,295 (1989).'
The Standard. Technical Specifications consist of
. hundreds of pages of requirements governing the operation of Turkey Point and contain hundreds of modifications of the' custom Technical Specifications. Many of the changes effected by the Technical Specifications are editorial in nature, e g , changes to conform with the format of the Westinghouse Standard Technical Specifications.3 Other changes impose new or more restrictive requirements on the operation of Turkey Point' by, for example, requiring FPL to conduct additional or more frequent surveil-lances of components or to comply with more restrictive action 3(... continued)
(NRC) to J.H. Goldberg (FPL) re " Turkey Point Units 3 and 4 -
Issuance of Amendments Re
- Replacement of Current Technical Specifications with Revised Technical Specifications TAC NOS.
63038 and 63039, 55915 and 55916,-55384 and 55385, 71864 and 71865 (Aug. 28, 1990).'?
' Egg also " Proposed Policy Statement on Technical
- Specification Improvements for Nuclear Power Reactors," 52 Fed.
Reg. 3,788-(1987).
3 For example, in the custom Technical Specifications, the Limiting Conditions for Operation ("LCOs") were in a different section (Section 3) than the corresponding surveillance require -
ments (Section 4). In the revised Technical Specifications, 1 Sections 3 and 4 are combined so that corresponding LCOs and surveillance requirements are in the same subsection.
'FPL's application for the revised Technical Specifications included a safety analyses for each subsection of the revised Technical Specifications. San Letter L-89-201 from C.O. Woody (FPL) to NRC, Attachment II, Appendix A (June 5, 1989). For each subsection, Paragraph A.2.b. of the safety analysis usually identifies the new or more restrictive requirements.
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statementsLor limiting conditions of operation. Finally, in some cases, the changes relax existing requirements or relocate exist-ing. requirements from the Technical Specifications to other controlled documents.
The Petition stated that Mr. Saporito works in and about'the City of Miami, Florida, as an instructor in the field ofLdigital electronics, is the Executive Director of NEAP, and that Mr. Saporito " regularly travels to Miami, Florida to conduct -
research in the nuclear field..." The Petition also stated that
-NEAP "is an environmental organization with specific and primary purposes to operate for the advancement of the environment" and i that it has its principal place of business in Jupiter, Florida.7 It also referred to contacts-or activities by Mr. Saporit0 in Miami "within the NRC ' Zone of Interest'" and identified several members of NEAP who live or engage in activities within 50 miles of Turkey' Point.: Both FPL.and the Commission Staff opposed the Petition on the ground that neither i Mr. Saporito nor NEAP had demonstrated that they had met the Commission's requirements for standing to intervene.' In 7
l Petition at.1-3. Mr. Saporito and NEAP are listed as having-the same address. NEAP has stated that Mr. Saporito's residence is "about 83 miles" from the Turkey Point nuclear plant.= Petitioners' Amended Petition for Intervention and Brief in Support.Thereof (Mar. 5, 1990) at 9.
sPetition at 2-3.
t-
' Licensee's Answer in Opposition to Request for Hearing and Petition for Leave to Intervene (Jan. 10, 1990)(" Licensee's Answer"); NRC Staff Response to Request for Hearing and Petition for Leave to Intervene of Nuclear Energy Accountability Project (continued...)
4-(
addition, . each argued that the Petition failed to F.eet the aspect and specificity requirements of 10 CFR-S 2.714(a)(2), in large part because it.merely recited requirements of regulations and contained bare assertions of non-compliance. Consequently, the Licensing Board, by Memorandum and Order issued-February 5, 1990, urged the Petitioners to study the FPL and NRC Staff answers "and to cure whatever deficiencies exist by amending their petition."2" l On March 5, 1990, Petitioners submitted an " Amended Petition for Intervention and Brief in Support Thereof" (" Amended-Petition")oto which was attached an affidavit executed by 4
- Mr. Saporito. Among other grounds for standing, the submittals indicated that Mr. Saporito was employed four days a week, for about twelve hours a day, at a technical school in Miami called
'( . . . continued) .
and Thomas J.-Saporito, Jr. (Jan. 16, 1990)(" Staff Response").
In-its Answer Licensee,. inter alia, specifically pointed out that: the Petition did not contain enough information to deter-
-mine whether Mr. Saporito had sufficient contects within the zone of interest of the Turkey-Point plant (Licensee's Answer at 4-7);
the Petition did not contain sufficient information to determine whether. NEAP had standing to intervene, either on its own behalf or on behalf of its members, including Mr.1Saporito and others 'i referred to in the Petition'(Licensee's Answer at 7-14); and the Petition did not establish that Mr. Saporito or NEAP's members could be adversely affected by the results of the proceeding- t (Licensee's Answer at 14-18). Licensee's Answer set forth in detail'the' requirements which NEAP and Saporito were required to satisfy to obtain standing to intervene. The Staff Response specifically noted (Staff Response at 6-9) that.Mr. Saporito and NEAP had not provided sufficient information to establish stand-ing to intervene. Staff also set forth the standards which had to be met by,Mr. Saporito and NEAP to establish standing to
' intervene.
10 Memorandum and Order (Prehearing Conference; Filing I Schedule) (February 5, 1990) at 3. l
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the ATI Career Training Center ("ATI"). Amended Petition at 9. '
Miami is about 25 miles from the Turkey Point plant'and therefore well within what has been held to be the." geographical-zone of -
interest" to establish standing in similar proceedings.
Consequently, after FPL=had verified the employment 22 -- and ,
solely upon'the~ basis of that employment -- both FPL and the NRC 4 Staff conceded that Mr. Saporito possessed the requisite indivi-dual interest sufficient to support standing to intervene and ,
that. NEAP, based on the standing of Mr. Saporito, a member and of ficer, possessed standing on a representational basis.12 At a.
prehearing conference held on March 23, 1990, the Licensing Board-accepted the-position of Licensee and Staff concerning the Petitioners' standing.13 The Amended Petition contained 56 proposed contentions.
The first~two related to the need for an environmental assessment and an environmental impact statement and, the Licensing Board determined, the twenty-fifth concerned facts not related to the change in technical specifications.2' The remaining 53 contentions followed a repetitive, rote format which was 22 Applicant's Response to Notice of Withdrawal from Proceeding,.(Apr. 13, 1990) at 2-4.
12 Applicant's Response to Amended Petition to Intervene (March 16, 1990)~at 6; NRC Staff Response to Petitioners' Amended Petition for Leave to-Intervene (Mar. 19, 1990) at 7-10.
]
1 13 Eg.g Florida Power t. Light Co. (Turkey Point Nuclear I
. Generating Plant, Units 3 and 4) LBP-90-16, 31 NRC 509, 511-12 .I (June 15, 1990). l 8'Id. at 516.
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, described in some detail by the Licensing Board" and, more
- generally,-as consisting primarily of allegations -- based on Applicant's own admissions -- that Applicant has.in some instances relaxed requirements in the course of amending its technical specifi-cations.. Generally, Petitioner failed to advance an independent basis'for-any of its contentions. Instead, Petitioner relied entirely on alleged omissions in Applicant's analyses and said=it intended to support its proposedicontentions_by Mr. Saporito's expert '
' opinion, by. interrogation of Applicant's witnesses, and by discovery, without any indication of the analytical basis for further inquiry. .These allegations of omission wers always based on assertion, without any specific source of evidence concernin the importance of the alleged-omission.'
Thirty-six of the contentions and parts of three othere were withdrawn at the prehearing conference." In its I L
j Memorandum and Order of June 15', 1990, ausIA at n.12, the
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-Licensing Board admitted only five of the remaining contentions, l
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, in whole.or in part, with litigation of the two environmental i contentions-being deferred pending whether, as a result of litigation of certain of the admitted contentions, the Board I should later conclude "that the proposed modification of the
. technical specifications 11s a major federal action.""
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I U ld, at 516-519. I "Id. at.515. I "Id. at 519-520.
"Id. at 538-39.
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, However, as described in note 2 above,'on April.1, l
1990,-subsequent to the prehearing conference, Mr. Saporito filed' a " Notice of Withdrawal from Proceeding," dated April 1, 1990.
The notice alleged that Mr. Saporito had been intimidated by a ;
letter which one of FPL's counsel had addressed to ATI on l i
March 7, 1990, requesting verification of Saporito's employment
]
there." 'The notice stated that Mr. Saporito was personally withdrawing-from the proceeding, leaving NEAP "as the sole remaining Petitioner," but that: " Petitioner NEAP holds no reliance on Mr. Saporito's standing in these proceedings to support its own standing. . ."ro The withdrawal notice was treated by the Licensing j Board:as a motion to withdraw.
Following the receipt of g4 responses from both staff and FPL," on April 24, 1990, the Licensing Board' issued a Memorandum and Order. In it, the Licensing Board stated that, since both FPL and the NRC Staff had 4 conceded NEAP's'atanding based on its representation of "Before submitting the notice, Mr.-Saporito,.in a letter to the Licensing Board dated March 9, 1990, complained about the March 7; letter. Consequently, FPL counsel wrote Mr. Saporito on
-March 19, with a copy to ATI, stating the March 7' letter was not intended to be hostile or coercive. Nevertheless, the withdrawal notice also treated the March 19 letter as part of FPL's effort
'to' intimidate.
2oNotice of Withdrawal From Proceeding ( April 1, 1990)
(emphasis in> original) at 2.
" Applicant's Response to Notice of Withdrawal from Proceeding (April 13, 1990); Staff's Response to Thomas J.
Saporito, Jr.'s Notice of Withdrawal (April 23, 1990). Both FPL (Applicant's Response at 4-6) and Staff (Staff's Response at 2-3) urged that, due to NEAP's failure to establish standing, the petition to intervene should be dismissed.
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,4 M Mr.fsaporito, the question whether there were other bases for
. NEAP's standing had not been considered because it " appeared to be moot. "22 It'went on to point out that if the motion to withdraw was granted, those issues would have to be addressed and that it was " convinced that NEAP does not have standing an an 4
organization'since it is merely claiming a generalized grievance -- alleged danger from a nuclear power plant.-- that is shared by_the general public."22 It also stated that "[t]he question of standing through injury to members is more complex . u 2' 'I In order to deal with that question, it-directed
, both NEAP and at least one of its members to file statements containing specified items of information.
-Purporting to comply with the Licensing Board's direction, on May 5, 1990, NEAP filed a response to the Licensing
' Board's Memorandum and Order to which was attached the statement,
=inLthe-form of an affidavit, of only one member, Ms. Shirley Brezenoff. Attached to her affidavit was a' form which indicated i
- she had requested membership in NEAP for " Quad City Citizens for o
Nuclear . Arms f Control . "25 NEAP's response expressly stated that
" NEAP relies on its member Ms. Shirley Brezenoff .
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e 22 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), Memorandum and Order (unpublished)
(April 24, 1990) at 5-6.
23 1d. at 1, 6 (emphasis in original).
L 2'Id . at ' 8 - 9 .
23 NEAP's Response to the ASLB's Memorandum and Order (May 5, 1990).
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, standing in this proceeding. "2' In replies, both Licensee and t r
the Staff ~ argued that, since NEAP's " members" do not in fact -
possess " indicia of membership" or are not members "of a traditional membership organization," NEAP.had not established i standing as a representative-of any such member or members and its petition to intervene and request for hearing should be denied. 27 ;
1 The Licensing Loard did not deny the petition and j
-1 hearing request. Rather, its June 15, 1990, Memorandum and Order, AMBIA at n.12, granted Mr. Saporito's motion to withdraw -l as an individual. It also granted NEAP party status, but made its ruling contingent upon the filing of a document by Mr. Saporito in which he personally stated his willingness to be represented by NEAP.2s The Licensing Board stated that the statement of Ms.-Brezenoff provided by NEAP was insufficient.to support NEAP's' standing on a representational basis because Ms. Brezenoff " lacks the indicia of membership requisite to
- l. 1 provide a basis for NEAP's standing," both because of her lack of i 1
control over NEAP, and because she became a member of NEAP l
c 2'Id . at 3 .
L .
2' Applicant's Reply to NEAP's Response to the ASLB's Memorandum and. Order-(May 17, 1990); NRC Staff's Reply to NEAP's L ' Response to Licensing Board's Memorandum and Order of April 24, L 1990 (May 24, 1990). In addition,.the Staff reply (at 8 n.1) questioned "whether the Affiant wished to be a NEAP member or l whether she sought membership for her organization, Quad city Citizens for Nuclear Arms Control."
2sFlorida Power & Light Co. (Turkey Point Nuclear Generating Plant,. Units 3 and 4), LBP-90-16, 31 NRC 512-14, 538 (1990).
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"'[fjor Quad City Citizens for Nuclear Arms Control' and not-for j 1
herself"." Mr. Saporito later filed the required pleading, )
1 styled "Intervenor's Statement to Rrspresunt", dated June 19, l 1990, declaring that he now desired to be repracented by NEAP in .
1 this proceeding."
It is clear from the foregoing that Mr. Caporito's standing, and therefore NEAP's, was based solely on his employ- I ment at ATI.M Mowever, by letter dated June 20, 1990, from ,
l NEAP's newly retained counsel, the Licensing Board was notified-that Mr. Saporito was no longer employed in the Miami area and that, in fact, he had been discharged from ATI on May 10, 1990.
"31 NRC at 513 n. 5.
" Attached to a letter from NEAP's counsel to the Licensing Boardi(June 20, 1990).
M As stated by the Licensing Board in its June 15, 1990
-Memorandum and Order With respecttto the standing. issue, the Board ruled at the prehearing conference that it would. accept the position of Applicant and the Staff that Mr. Saporito had standing2 and that, based on his standing, NEAP -- which Mr. Saporito serves as a director -- also would have standing.
2 Mr. Saporito works over 40 hours4.62963e-4 days <br />0.0111 hours <br />6.613757e-5 weeks <br />1.522e-5 months <br /> a week as a teacher at the ATI Career Training Center, 1 N.E. l
~
19th Street, Miami, Florida 33132, and this is well within the 50 mile geographical zone of interest.
31 NRC at 511-12.
1 l-e.
7 Consequently, on June 22, 1990,. Licensee moved for reconsidera-tion of the Licensing Board's ruling on NEAP's standing, based on
[
a material change in circumstances, and asked that the petition
-1 for intervention and request for hearing be denied for failure.to-satisfy the standing requirements of 10 CFR S 2.714.32 The NRC Staff supported Licensee's motion,33 while NEAP opposed it.3' In its response, NEAP requested permission "to file additional '
facts and legal arguments'in support of" its standing.33 In the July 17, 1990 Order, which is the subject of ,
this appeal,.the Licensing Board granted FPL's motion and dis-i missed NEAP from the proceeding for lack of standing.3' In the [
Order, the Licensing Board referred to its earlier statement that NEAP "had all the opportunity it needs to establish standing it may not file any further documents alleging a new basis for standing."" The Board went on to say: 38 32 Applicant'c Motion for Reconsideration and Dismissal of.
Petition to Intervene (June 22, 1990).
33 NRC Staff Response to Applicant's Motion for Reconsideration-(July 12, 1990).
3' Response of Nuclear Energy Accountability Project and Thomas J. Saporito to Florida Power and Light's Motion for Reconsideration and Dismissal of Petition to Intervene (July 10, 1990).
35 1d.-at 3.
3' Florida Power & Light Co. (Turkey Point Nuclear Generating
~
Plant,-Units ~3 and-4), LBP-90-24, 32 NRC 12, 19-20 (1990).
37 32 NRC at 15 (footnote omitted).
. said .
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We adhere to our prior rulings. We note that-until this time Mr. Thomas J. Saporito, who is not a lawyer, has appeared on behalf I of NEAP,.as is his right under the procedural I regulations. 10 CFR S 2.1215(a). As the representative of NEAP, Mr. Saporito-had the y full' authority and responsibility to repre- '
sent it, on both technical and procedural matters. He could win or lose the case on complex issues of science, engineering and law. He also could make arguments that impose the costs of' response on opposing parties and the costs of decision on the Nuclear Regulatory Commission. While we have 1 been patient and-protective of his needs as.a non-lawyer, he has1now had all the protection he can properly be afforded.
NEAP has had ample opportunity to demonstrate that it has standing independent of Mr. Saporito, and it has not done so. j The Licensing Board also expressly denied NEAP discretionary
. intervention. In support of its ruling it stated:" I We are.particularly concerned that NEAP has not brought to' bear any substantial expertise I
.to demonstrate.the importance.and' immediacy y of its concerns or to justify the necessity J of considering them. Becauce of the.way in-l which the case has been presented, it has L been left to the Board to analyze the record and use its own expertise to determine the importance of NEAP's concerns.
p In addition, the July 17, 1990 Order denied the request,' contained in NEAP's July 10, 1990 response, to hold the ~
proceeding in abeyance pending completion of a Department of l
- Labor-(" DOL") proceeding instituted by Mr. Saporito under the "Whistleblower" statute of the Energy Reorganization Act of 1974, Section 210, 42 U.S.C. S 5851, alleging that FPL was responsible for. effecting Mr. Saporito's discharge by ATI. The Licensing "Id. at 17.
L
O Board stated that: "Thsre is nothing in our record to support the allegation, and Mr. Saporito had adequate opportunsty to support the allegation had he chosen to do so."" However, it recognized that it had not fully Adjudicated the matter and that the dismissal is "without prejudice to a motion to reopen should the DOL uphold Mr. Saporito's allegation . . . .""
Finally, the Licensing Board also requested that the NRC Staff comment as to whether certain of NEAP's contentions contained any serious safety issues, within the meaning of 10 CFR
$ 2.760a, that would require admission into the proceeding ana sponte.u Following responsive filings by the Staff and Licensee, which argued that the Licensing Board no longer possessed authottity to consider issues ana sponte and that -- in any event -- no serious safety issues were involved, the Licensing Board issued a Memorandum and Order which reaffirmed its view of gua sponte jurisdiction, but concluded that there "Id. at 19.
"Id.. The Department of Labor conducted an investigation of Mr. Saporito's charge which was in part based upon the letters related to his employment at ATI, referred to above, aupra. at 8 .
n.19. The charge was dismissed in a letter to Mr. Saporito from !
Jorge Rivero, Assistant Director, Employment Standards Administration, Wage and Hour Division, U.S. Department of Labor (April 2, 1990), which concluded: "Our investigation did not verify that discrimination was a factor in the action comprising l your complaint." Mr. Saporito initiated an internal appeal from this action within the Department of Labor. Hearings were held before an administrative law judge on August 21 and 22, 1990, and the matter is awaiting the issuance of a recommended decision for the Secretary.
"Id.
I l
I i
were no important safety or environmental questions and that, l accordingly, the case was dismissed."
on July 25, 1990, NEAP noticed its appeal of the I Licensing Board's July 17, 1990 order dismissing it from the proceeding." Thereafter, on September 5, 1990, NEAP filed the i
"Brief for Appellants Nuclear Energy Accountability Project and Thomas J. Saporito" (" Appellant Brief")." -
Due to the somewhat involved background of this .
proceeding, Licensee believes it is appropriate to establish what is at stake in this appeal. NEAP's appeal is directed solely to the Licensing Board's rulings denying NEAP: (1) pure organ-izational standing, in an institutional capacity; (2) standing on a representational basis, through members other than Mr. Saporito; and (3) discretionary standing." There has been no appeal of the Licensing Board's dismissal of Mr. Saporito as a party;" and Mr. Saporito's eligibility for standing to intervene -- either personally or as a member upon whom NEAP may rely for standing on a. representational basis -- is not an issue before the Appeal Board. NEAP has not appekled the Licensing
" Florida Power & Licht co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-32, slip op. (Sept. 25, 1990). No party has attempted to appeal the Licensing Board actions relating to these matters.
l
" Notice of Appeal (July 25, 1990).
1 "But, as discussed in note 2, supra, only NEAP is a proper party to this appeal.
" Appellant Brief at 35.
"32 NRC at 19.
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s-#_ . , , - - - . . . _,.,.__.e--.. . , . _ - - - , - - - ,_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
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Board's exercise of discretion in refusing to hold the proceeding in abeyance pending resolution of the Department of Labor case and in denying NEAP still another opportunity to present facts ;
which might bolster the theories it now asserts to support ,
standing."
II. AROUMENT A. The Licensing Board's Denial of Organisational standing to -
NEAP in an Institutional Capacity Was Proper and Should Be affirmed Recuced to its essentials, NEAP's argument that the Licensing Board erred in denying it organizational standing is that.its status as a small organization, focused on local matters, is of such a nature as to establish pure orgenizational standing in its own, institutional capacity." NEAP's position ,
l is without merit. ,
- 1. Generally applicable legal standards pertinent to organisaticnal standing in an institutional capacity The NRC utilizes judicial concepts of standing in evaluatingwhetherorbotapetitionerhastherequisiteinterest to intervene in proceedings before it. San, u , Public Earvice co. of indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438, 439 (1980); Portland General Elaetric co. (Pebble Springs Nuclear Plant, Units 1 and 2),
"As Appellant has noted, NEAP's appeal is unrelated to the Department of Labor proceeding initiated by Mr. Saporito against the Licensee. Appellant Brief at 20 n.2.
" Appellant Brief at 41-43.
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1 CLI-76-27, 4 NRC 610, 613 (1976). Applying judicial standards, the NRC has held that an organization may establish standing to intervene eithers (1) as an organization, in its own institu-tional capacity; or (2) as an organization, representing its members. Saa vermont Yankaa mucinar Power coro. (Vermont Yankee !
Nuclear Power Station), LBP-87-7, 25 NRC 116 (1987). Ene also American Leaal roundation v. rce, 808 F.2d 84 (D.C. Cir. 1987)
(organizations may sue on their own behalf, or on behalf of their l members). The first issue raised by NEAP pertains to the former i
type of standing; i.e , pure organizational interest, in its 1
institutional capacity.
In establishing standing solely on its own behalf, as an institution, an organization is held to the same legal stand-ards as an individual. Saa Amerlean Leoal roundation, 808 F.2d 84 at 89 ("the organization's pleadings must survive the same
, standing analysis as that applied to individuals"). Joe also, g g , Portland General Electric, 4 NRC 610. Accordingly, organizations seeking yo intervene in their own, institutional capacities must satisfy two tests. First, they must establish existing or probable injury to their organizations; in other t
words, " injury in fact." Second, organizations seeking institu-tional standing must be " arguably within the zone of interest" protected by the pertinent statute. Sam, e g , Public Service Co. of Indiana, 11 NRC 438; Portland General Electric, 4 NRC 610; i
Pucer Sound Power & Licht Co. (Skagit/Hanford Nuclear Power l'
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l
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Project, Units 1 and 2), LBP-82-74, 16 NRC 981, 983 (1982); rev'd !
en other grounda, ALAB-700, 16 NRC 1329 (1982).
In terms of satisfying the first, " injury in fact" test, a simple or academic interest in a matter 4 subject is not i adequate. Portland canarmi rimetric, 4 NRC at 613. This is because of the need for the " concrete adverseness brought to a ,
proceeding by a party who may suffer injury in fact by Commission licensing action." Id. Ema also, a g , varth v. Baldin, 422 U.S. 490, 498-500 (1975). Interest in a matter -- even if focused -- does not constitute injury. Sam, a s , Ei=an v-Eastern rantucky valfara Rightm Org., 426 U.S. 26 (1976) (local organization composed of indigents and dedicated to promoting access by the poor to health services could not establish standing on that basis). Further, the intensity of an organization's interest or the fervor of its advocacy is not relevant in assessing standing. Valley Forge christian college v. Amerleans United for Emoaration of church and State. '
Inc., 454 U.S. 464, 485-86 (1982).
Injury in fact also requires more than harm to some cognizable interest. It requires that the party seeking review be, himself or itself, among the injured. Elarra club v. Morton, 405 U.S. 727, 734-35. As recently formulated by the United States Court of Appeals for the District of Columbia Circuit l To establish " injury in fact" an organization, like an individual, must allege more than " simply a setback to [its) abstract social interests." Instead, it must allege
" concrete and demonstrable injury to the organization's activities."
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1=arican Lanal Foundation, 808 F.2d at 91 (citations omitted),
(quoting Havana Ramity Corp. v. Coleman, 4$$ U.S. 363 at 379 (1982)).
- 2. NEAP's present argument that it is a local organisation with the narrow goal of monitoring nuclear plants in ;
Florida does not entitle it to standing in an institutional capacity l According to NEAP, !
(t]he current decision on appeal treated NEAP the way the Supreme Court in slarra club or Mar 1h or Lujan [v. National Wildlife Federation, 110 S.Ct. 3177 (1990)) treated those respective organizations. Indeed, it is not surprising that courts have found large, nationally-oriented groups will have difficulty establishing a precise organiza-tional interest to be harmed by a particular agency action in a particular geographic location.
l NEAP is not a national organization, yet ,
no further discussion was entertained by~NRC 4 Staff or the Board as to NEAP's organiza-tional standing except to say NEAP has only a ,
" generalized interest" in this subject matter. Yet advancing a " generalized interest" does not alone defeat such standing. ,
Appellant Brief at 41.
NEAP then goes on to discuss its organizational purpose and activities, all of which -- according to the description --
are associated with nuclear energy in Florida. Id at 42-43.
NEAP concludest (A) more careful review of the record and of NEAP itself would show that sierra club and cases like it are clearly distinguishable here. NEAP is not a large national organiza-tion expressly (sic) only a generalized concern about nuclear power which may or may not be shared by the general public.
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l 1 NEAP has established standing as an organization in its own right and should have been so admitted as an intervenor in these proceedings. The Board erred in declining to ,
do so. l l
Id. at 43. l l
This argument, however -- even if based on an accurate )
I recitation of facts," -- must be rejected for the following reasons: (1) it was never raised before the Licensing Board; (2) it is not logical and is wholly without support and; (3) it ,
ignores or distorts pertinent legal precedent to the contrary.
First, nowhere below has NEAP ever argued that a unique standard should be applied because of its allegedly special [
"In detailing its activities NEAP states, in parts j Nore importantly, NEAP's stated purpose, by its own description, la directed to nuclear plants in Florida. " NEAP's focus le to ensure that the nuclear power plants in Florida operate safely and in full compliance with federal regulations." NEAP " closely monitors the actions of the NRC to ensure that every affert is being made to provida .
for the safe operation of the nuclear plants in Florida. Further, " NEAP's immediate objective in to'macure the safe shut down of the Turkey Point Nuclear plant."
r Appellant Brief at 42 (emphasis in original). NEAP made no such claim in either the Petition or the Amended Petition. The language quoted in the Appellant Brief comes from a flier issued by NEAP (a copy of which was attached to " Licensee's Answer in Opposition to Request for Hearing and Petition for Leave to Intervene" (Jan. 10, 1990)).- NEAP, however, omitted from its recitation in its Appellant Brief a statement contained in the flier that " NEAP's longterm objective is to become recognized nationally as a nuclear watchdog agency." (emphasis added).
Thus, NEAP's portrayal of itself in the Appellant Brief as an organization with strictly local interests appears inconsistent with representations elsewhere.
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status as a local group with a narrow goal. "A party cannot be heard to complain later about a decision that fails to address an l 1ssue no one sought to raise." Philadelnhia Electric co.
(Limerick Generating Station, Units 1 and 2), ALAB-778, 20 NRC 42, 47-48 (1984). See also, e g , nuka power co. (Catawba !
Muclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 82-83 !
(1985). For this reason alone NEAP's argument that it is entitled to special or unique consideration due to its status as a purportedly small organization, with a focused interest in local matters, should be rejected.
Second, regardless of whether or not the first issue raised by NEAP is properly before this body, appellant's argament is illogical and rune contrary to common sense. To grant NEAP pure organizational stsnding, in its own right and on the basis of.the arguments offereo c would be to conclude that, as long as an organization is devoted *.o a particular cause, then that organization will have standing in any legal proceeding affecting ,
that cause. This cannot be correct. Under such a construct, any individual not subjected to an " injury in fact" could gain standing simply by forming an organization devoted to the singular cause in which that individual desired to become ,
involved. It was, no doubt, just this type of problem that the Supreme Court had in mind in sierra club, where it observed:
But if a "special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear l to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization, however
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small or short-lived. And if any group with !
a bona fide "special interest" could initiate !
such litigation, it is difficult to perceive iny any individual citizen with the same bona :
fide.special interest would not also be entitled to do so.
405 U.S. at 739-40. :
Finally, NEAP's contention that its allegedly narrow, [
local focus distinguishes it from "Blurra club and cases like it"U not only leads to an illogical result, it is -- more !
importantly -- contrary to existing law. In Elarra club, itself, '
petitioner Sierra Club was denied standing to participate in a case affecting the Sierra Nevada Mountains, in spite of the fact that a principal purpose of the organization is to " protect and conserve the national resources" of that range. sierra club, 405 U.S. at 735 n. 8."
, similarly, in the instant case, NEAP's concern over nuclear safety in Florida'-- even if local and focused -- cannot M Appe11 ant Brief at 43. ,
M See also Simon, 426 U.S. 26 (local organization promoting access of indigents to health care services denied standing based u on special interest in the health problems of the poor); clover River Org. v. U.S. Dan't of the interior, 675 F.2d 251 (10th Cir.
l 1982) (denying organization, made up of about 500 members L residing in an area of southeastern Oklahoma and devoted to the L narrow goal of promoting certain local flood control projects,
. ' .anding in its.own right); Black Faculty Ass'n of Mesa collegg <
- v. san Diego community college Dist., 664 F.2d 1153, 1156 (9th l
Cir. 1981) (local faculty association denied standing in
- discrimination action, where association showed no injury to
! itself from alleged discrimination); Huebner v. Ochberg, 87 F.R.D. 449, 452 (E.D. Mich. 1980) (association of friends of mental hospital denied standing in complaint challenging l conditions at hospital where no aparticularized" injury to 1 association was shown); Puget Sound, 16 NRC at 983-84 (inter-tribal commission concerned with fishing in Columbia River denied standing where it failed to show more than "special interest").
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w . _- _ _ _ _ _ _ _ ___.- _ _, ____ ._ _ _ _ _ .- - _ __ _ _ _ _ - .1
form.the basis for an injury in fact sufficiently concrete to support standing.
Appellant has failed to cite a single authority in direct support for the proposition that NEAP should be held to a different standard than that applied in sierra Club and related cases, based on a local, focused interest. In an effort to find such authority, appellant implies that the Licensing Board holding in Consolidated Edison Co. of New York (Indian Point, Unit No. 2)/ Power Authority of the State of New York (Indian Point, Unit No. 3), LBP-82-25, 15 NRC 715, 733-736 (1982), i supports its position." That case, however, concerned the propriety of granting an organization standing on a representational -- not institutional -- basis. The independent standing of the organization in question-(the Union of Concerned ;
Scientists), was neither raised nor addressed. i NEAP apparently also seeks support for its position in I the Allied-canaral Nuclear Services (Barnwell Fuel Receiving and i
Storage Station),_ALAB-328, 3 NRC 420 (1976) (" AGES")." That case, however, is clearly distinguishable.
AGNS involved an application for a materials license to I receive and possess irradiated fuel assemblies at the Barnwell l Fuel Receiving and Storage Station in Barnwell County, South Carolina. In AGES, the Atomic Safety Licensing Appeal Board
(" Appeal Board") specifically applied the principles of Sierra 83 Appellant Brief at 41.
" Appellant Brief at 39-40.
Clgh. In so doing, it affirmed the denial of pure organizational standing, on an institutional basis, to the American Civil Liberties Union of South Carolina. 3 NRC at 421-23.
At the same time, however, the Appeal Board affirmed the standing of the "221 Pickens Street Organization" ("Pickens Straet"), which -- in furtherance of its stated goals -- operated a vegetarian restaurant, juice bar, natural food store, and organic garden. 3 NRC at 421, 423. Since spent fuel might move in close proximity to the property interests and related activities of Pickens Street- !ncluding the organic garden it sponsored and other sources of produce it marketed, the Appeal Board affirmed the Licensing Beard's conclusion that concern for these activities might amount to "a sufficiently particularized i interest in the proceeding... to confer standing to intervene."
Id at 423-24.
Nevertheless, the Appeal Board expressed skepticism l concerning the standing granted to Pickens Street. It concluded, *
"Although we think whether the sierra club test has been met to be a close queek. ion, we defer to the Licensing Board's judgment-on it." Id at 424 (citations omitted),
l Clearly, AGES offers no support for the grant of l
intervention to NEAP. First, in contrast to the approach urged by appellant, the Appeal Board applied Sierra club when evaluating the alleged interests of the petitioners in terms of
- t. standing, including the small, local Pickens Street organization.
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Second, in upholding the Licensing Board's grant of intervention -- based, inter alla, on a finding of standing --
the Appeal Board looked to the potential, palpable harm to the i..cerests of the organization as an entity separate from its members. In contrast to Pickens Street and its concerns over I harm to the produce it raised and marketed, NEAP has not identified a connection between potential injury arising from the grant of the subject license amendment and its interest sufficient to form a basis for organisational standing in the instant case."
1
- 3. The Licensing Board's Denial of Standing to NEAP in a Representational capacity was Proper and Should Be Affirmed Appellant's second question concerns whether the
-Licensing Board properly denied NEAP organizational standing on a representational basis through members other than Mr. Saporito.
In order for an individual to be the basis of representational standing for an organization, that individual must possess
" indicia of membership" in the organization. Failure to establish that the individual possesses " indicia of membership"
" NEAP has made vague reference to distributing information about Turkey Point near the plant, and to the use of "the legal library and the Florida International University which are (10-20 miles respectively) of the Turkey Point nuclear plants."
Appellant Brief at 42. However NEAP has not specifically shown the nature, frequency, or extent of these activities, and has thus failed to establish the necessary basis for institutional i interest sufficient to support standing. San Northern Fjgtgg i
Power co. (Pathfinder Atomic Plant), LBP-89-30, 30 NRC 31J., 315 l (1989) (need for specific statement of interest by organi-zations).
l L
in the organization is a sufficient and independent reason to deny an organization representational standing based on that individual. NEAP did not meet the requirement. Accordingly, the Licensing Board correctly dismissed NEAP's petition and its ruling should be affirmed.
- 1. General princip1.as of representational standing Under 10 CFR S 2.714(a) (1990) of the Commission's regulations, a person has a right to intervene in an NRC proceeding only if she has an interest that may be affected by the results of the proceeding. The Commission has held that, in determining whether a person has an interest which may be affected by a proceeding, " contemporaneous judicial concepts of standing should be used." Portland Canaral Electric co , 4 NRC at 614.
As the U.S. Supreme Court explained in Diamond v.
charles, 476 U.S. 54, 61-62 (1986), judicial concepts of standing have their underpinnings in Article III of the Constitution, which limits the power'of federal courts to deciding " cases" and
" controversies."
The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by i itself to meet Art. III's requirements. This '
Court consistently has required, in addition, that the party seeking judicial resolution of a dispute "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct" of.the other party.
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J Id -(citations omitted). Thus, standing will not be afforded to l
" concerned bystanders,' who will use it simply as a ' vehicle for )
,. .the vindication of value interests.'" JJLu (citation omitted).
In accordance with this principle, both the courts and the NRC have adopted the general rule that a person cannot acquire standing based on the interests of third persons. San >
Marth, 422 U.S. at 499 (1975); Tenn amaa vm11my Authority (Watts i Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 (1977); Detroit Edison co. (Enrico Fermi Atomic Power Plant, Unit No. 2), ALAB-470, 7 NRC 473, 474-75 n.1 (1978). This principle is applicable even in cases where the third person has explicitly authorized the complainant to undertake litigation as his representative, saa mino, a g , American Legal roundation, 808 F.2d at 89-91; Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 458-59 (1979).
One exception to the general rule that an individual may not represent third persons applies to the standing of organizations to represent the interests of their members.
O' Hair v. White, 675 F.2d 680, 691 (5th Cir. 1982). Both the courts and the NRC have held that an organization may acquire
- l standing if one of its members has standing and if the member has l
authorized the organization to represent his interests. Sierra Club, 405 U.S. at 739; Houston Lighting & Power (South Texas Project, Units 1 and 2), 9 NRC 644 at 646-47 (1979).
This exception for organizations is attributable to the unique relationship between an organization and its members. As
j the Supreme Court noted in one of the earliest cases involving representational standing, N11EP v. Almhama, 337 U.S 4(9, 459 (1958), the NAACP wad an appropriate party to assert the rights of its members, "because it and its members are in every practical sense ident.i. cal." It is this theoretical identity between an organizatioa and its members which forms "the core concept of associational representation." Talaen==unleations Ramsarch & Action Omnter v. A11nat communication Earvices. Inc.,
806 F.2d 1093, 1096 (D.C. Cir. 1986).
However, no organization has an unlimited right to represent the interests of its members. Saa O' Hair v. White, 675 F.2d 691-92. For example, the U.S. Supreme Court has stated that an organization may acquire representational standing only if (a) its members would otherwise have standing '
to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. ;
Hunt v. Washington State Apple Advertising comm n, e 432 U.S. 333, 343 (1977). Satisfaction of these criteria is necessary to ensure that-there is a sufficient identity between the organiza-tion and its members. Sag Telecommunications Ramsarch, 806 F.2d at 1097.
- 2. For an organization to establish representational standing through one of its members, that individual must possess the " indicia of membership" i.
I As an integral part of the process of satisfying the three-part test in Hunt, however, it is also necessary that the i
o i
i individuals upon whom representational standing will be based i i
satisfy the requirement of membership in the organization. In Hunt, the Supreme Court established the required standards by stating that, for purposes of representational standing, an individual will be deemed a member of an organization if he possesses the " indicia of membership." Hunt, 432 U.S. at 344.
The Court also identified various criteria relevant to a :
determination of whether " indicia of membership" exists. Such l l
criteria include whether the individuals elect the controlling body of the organization, serve on the body, and finance the organization's activities. Id at 344-45. In short, to have
" indicia of membership" in an organization, a person must be able to exercise at least some control over the organization. Health ,
t Renaarch Group v. Kennedy, 82 F.R.D. 21, 26-27 (D.D.C. 1979).3' In a number of cases, a court has held that represencational standing may not be based upon individuals who an organization merely designated " members" or upon other persons who had a relationship.'with the organization, but who did not 8' The Licensing Board properly applied Health Ramsarch Group to the facts of this proceeding. Saa 31 NRC 509 at 513 n.5. In so doing, the Licensing Board disapproved one case, Consolidated Edison Co. (Indian Point, Unit No. 2), LBP-82-25, 15 NRC 715, 733-736 (1982), which had ruled that Health Raamarch Group should not be applied in NRC proceedings. The Licensing Board's decision was proper because the Commission explicitly, on appeal, had declined to reach a conclusion on the correctness of the Indian Point ruling. CLI-82-15, 16 NRC 27, 31 (1982). For further discussion, AAA Applicant's Response to NEAP's Response to the ASLB's Nemorandum and Order at 7-12 (May 17, 1990).
The Appellant Brief cites Indian Point but fails to refer.to the procedural history described above, or to mention that the Licensing Board adopted Health Research Group in its ;
June 15, 1990 ruling. Appellant Brief at 48-49.
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)
l possess " indicia of membership;" 1.a., did not exercise any j control over the organization. For examples
- Ir $dg2th Raamarch Grou_o, 82 F.R.D. at 27, a j c W P. held that persons, who contributed financial i support to and communicated with an organization J but who did not elect the board of directors of the organization or otherwise exercise any control l over the organization, could not be construed as a
members" for the purpose of standing. )
- In Pacific Leami roundation v. Matt, 529 F.
Supp. 982, 993 (D. Mont. 1981), the court held l that an organization could not derive its standing I from the standing of its " supporters" because, l among other reasons, the supporters did not -
possess the " indicia of membership" identified in Hunt.
- In clonlara. Inc. v. Runkai, 722 F. Supp. 1442, I 1450 51 (E.D. Mich. 1989), a court held that the standing of the " members" of an organization was i not sufficient to bestow standing on the organiza-tion because, among other things, the " members" merely purchased a service from the organization, could not elect its board of directors, and did >
not have input into the management of the ,
organization. I
- In American Leoal roundation,.808 F.2d 84, 89-90 (D.C. Cir. 1987), a court held that an organi-zation could not base its standing on the standing of its '! supporters" because they did not possess any of the " indicia of membership," such as selecting the organization's leadership, guiding j its activities, or financing the activities. l These cases should be contrasted with cases such as Sierra club v. Aluminum co. of America, 585 F. Supp. 842, 850-51 (N.D.N.Y. 1984), where the court found that the Sierra Club had representational standing based upon the standing of members who did "in fact retain effective control over the organization" by
paying duas and exercising voting rights to set policy and elect the board of directors."
In summary, under contemporary judicial concepts of standing, an individual may not base his standing on the interests of third persons. An exception to this general rule applies in the case of an organization and its members, due to the identity between the two. However, an organization may possess representational standing based upon the standing of its members or supporters only if such individuals possess " indicia of membership." Mere designation of a person as a " member" is not sufficient."
Instead, in order to ensure the identity between the organization and its members, the " members" in question must be
" Appellant Brief cites Sierra club v. Aluminum co. of America and supporting cases as " disapproving a hyper-technical reading of organizational standing requirements between ' members' or ' contributors' or ' supporters.'" Appellant Brief at 46.
Appellant has clearly misread these cases. The citation in sierra club v. Aluminum co. of Amerien refers to the defendant's "hypertechnical reading" of 1977 amendments to the clean Water Act as limiting representational standing to a plaintiff who commenced an action on his own behalf. 585 F. Supp at 845.
To the contrary, the court in Sierra club v. Aluminum co. of America emphasized that members of the Sierra Club, who possessed voting rights and other privileges in their organiza-tion, should be distinguished from individuals who, although called " members," lacked these rights and privileges. 585 F.
Supp. at 851.
"In an analogous case involving the definition of " members" under the Federal Election Campaign Act, the U.S. Supreme Court held that persons who contribute or respond to the solicitations of an organization and who are sent " membership cards" are not
" members" of the organization because they could not elect the organization's officials or exercise control over the expendi- i tures of-the organization. San FEc v. National Right to work comm., 459 U.S. 197, 206 (1982).
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6 able to exercise some control over the affairs of the organisction by means such as voting for the board of directors I of the organization." '
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.3. Failure to establish " indicia of membership" is an independent basis for denying an organisation i i
representational standing through one of its members l Appellant states that "[t)his ' 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.""
Appellant then proceeds to focus on cases favoring standing where 1
the purposes of the organization are germane to representation of )
the individuals' interest. It is clear that Appellant has I misapplied the holding in Hunt, and has failed to consider Health l Ramearch Group. As those decisions establish, " indicia of 1
membership" is not just "one way" of determining the link between j an individual'and the organization. It is an essential ,
requirement.
The plaintiffs in Health Research Group were Public Citizen and Health Research Group, which was funded and operated by Public Citizen. Both Public Citizen and Health Research Group attempted to base their representational standing on the standing ,
"In addition, to ensure the requisite identity of an organization and its members, the last two parts of the Hunt test must be satisfied; i.e.., the individual interests sought to be protected must be germane to the purpose of the organization, and the claims-and relief must not require participation by the individuals.
" Appellant Brief at 46.
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of individuals who financially contributed to and communicated <
with Public Citizen. The court identified two " independent ,
reason (s)" for denying representational standing to the plain-tiffs. First, the court found that the financial supporters did not possess " indicia of membership" because they had " absolutely ,
no direct control over either plaintiff." 82 F.R.D. at 27. In this regard, the court stated:
[T]here is a material difference of both l degree and substance between the control i exercised by masses of contributors tending to give more or less money to an organization depending on its responsiveness to their interests, or through the expression of I opinion in the letters of supporters, on the one hand, and the control exercised by j members of an organization as they regularly
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elect their governing body, on the other.
Id (emphasis in original).
1 As to the second " independent reason," the court held l that the plaintiffs did not possess representational standing I based on the standing of contributors to Public Cit 4Jan, because the interests that the plaintiffs sought to protect were not
" germane" to the purpose of Public Citizen. Thus, the Court found the " absence of any substantial nexus" between the contri-butors and Public Citizen (and therefore to Health Research Group). 82 F.R.D. at 28.
Therefore, the court in Health Research Group held that it was necessary for an organization to demonstrate hath that its supporters possessed " indicia of membership" and that the purpose of the organization was germane to the interests of the members.
Questions regarding " indicia of membership" are separate and
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independent of issues regarding " nexus" and " germaneness" among l
the interests of the supporters, the goals of the organisations, l and the purpose of the litigation. Similarly, in Hunt, the U.S.
Supreme Court also treated issues pertaining to " germaneness" separately from issues pertaining to " indicia of membership."'
In particular, the " indicia of membership" are not established '
merely because a " nexus" exists between the purpose of an organization and the interests of its " supporters" or " members "
Instead, " indicia of siembership" require some measure of control by the " supporters" or " members." '
The " indicia of membership" requirement therefore may not, as the Appellant would have the Appeal Board believe, be ignored provided a sufficient " nexus" or " germaneness" is shown linking the interests of the individual, the goals of the organization and the purpose of the litigation. As the court stated in Health Research Group
[A) plaintiff cannot gain standing merely on a showing that its interests and expertise are germane to the interests of any third parties who would have standing in their own right. ,
82 F.R.D. at 26. In short, representational standing of an organization must be based on the standing of a person who can '
exercise control over the organization. As the decisions in American Legal Foundation, 808 F.2d at 89-91, and Houston Lighting & Pow 2I, 9 NRC at 458-59, clearly hold, an organization is not entitled to base its representational standing on the
' Sea 4 32 U.S. at 34 3-4 4.
..._________.7 a
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standing of individuals who support the organization and have :
authorized it to represent their interests, unless the i individuals also possess the requisite " indicia of membership" in the organization. '
- 4. NEAP's " members" do not possess the requisite i
" indicia of membership" ,
- a. NEAP cannot support its claim to representational standing on the basis of Ms. Brezenoff's statement After Mr. Saporito had submitted his " Notice of Withdrawal from Proceeding," which stated that NEAP did not rely upon him "to support its own standing" (ausza, at 8), the Licensing Board believed it appropriate to clarify the -
ambiguities, pointed out by both the NRC Staff and FPL, concern- ,
-ing (1) the actual membership in NEAP of those individuals, other than Mr. Saporito, named in the Petition and Amended Petition, and (2) whether they had authorized NEAP to represent them in this proceeding. Consequently, the Licensing Board directed NEAP to provide a statement lfrom at least one member providing the ,
required information.
Only one such statement, in the form of the affidavit of Ms. Brezenoff, was supplied. This af !idavit has thus emerged ,
as NEAP's only possible claim to represtentational standing.
However, attached to the affidavit was a certificate in which Ms. Brezenoff stated she was reques*,ing membership for " Quad Cities Citizens For Nuclear Arra Control." As indicated above (supra, at 10-11), the Licensing Board made two independent e
. . - . _ .~. . , . . , - . . _ , _ , . _ _ - , . . , _ , , _ . .-,_y .., , y
I l r findings that Ms. Brezenoff Inched indicia of membership; the first being lack of control, the second being that she became a member of NEAP "'for Quad Cities Citizens For Nuclear Arms control' and not for herself." i At no place in this proceeding, including this appeal, has. NEAP challenged the second finding. That failure alone, we submit, disposes of NEAP's claim to representational standing.
It should be self-evident that an organization cannot claim representational standing simply because another organimation is ,
one of its members if the latter has not itself established either representational or independent organizational standing. -
Of course, Quad cities citizens has not even attempted to do either here.
'b. NEAP is not a traditional membership type organization and the Brezenoff affidavit fails to demonstrate she possesses the requisite " indicia of membership" Even if Ms. Brezenoff had requested and been granted NEAP membership on her#own behalf, she would not possess the requisite indicia of membership.
NEAP is an organization incorporated in the State of Florida. NEAP's Articles of Incorporation, filed with the Florida Secretary of State, designate Mr. Saporito, Rosemary >
Saporito (the wife of Mr. Saporito) and George Dunbar of Tequesta, Florida as the founders of NEAP.42 62 Licensee's Answer in Opposition to Request for Hearing and Petition for Leave to Intervene (January 10, 1990) at 12-13.
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l c I Nanagement of the corporate affairs of NEAP is governed l by Article Eight of its Articles of Incorporation. This Article states.that the " powers of this corporation shall be exercised, its properties controlled, and its affairs conducted by a board f of trustees." This Article also designates Thomas J. Saporito, I Rosemary Saporito, and George Dunbar as the first board of trustees, and its states that the initial officers of NEAP are to be elected at the first meeting of the board of trustees.
Nr. Saporito is also Executive Director, President, and Treasurer
- of NEAP."
The Articles of Incorporation do not set forth the >
qualifications or rights of. members. They merely state:
ARTICLE FIVE-MEMBERSHIP The corporation shall have a membership distinct from the board of trustees. The authorized number and qualifications of the members of the corporation, the manner of their admission, the different classes of membership, if any, the propert;r, voting and other rights or privileges of members, and their liability for dues and assessments and thu method of collection thereof, sha11 be set forth in the bylaws.
The bylaws of NEAP contain the following provisions related to memberships (1) Nembership shall be open to all those interested individuals, who wish to participate in accomplishment of the objectives of this corporation. Members will be entitled to receive information and newsletters, but they will have no voting rights unless otherwise authorized by the board.
" Petitioners Amended Petition for Intervention and Brief in Support Thereof (March 5, 1990) at 11.
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(ii) Members may be required from time to time to :
pay dues which shall be-set by the board. l (iii) Membership in this corporation shall be i approved y the board. 't (iv) Each member agrees to release, hold harmless, ,
and indemnify the corporation, its board of ;
directors, officers, agents or members from -
all claims for damages arising from complaints or unlawful acts against the member."
Additionally, a flier issued by NEAP states that an individual l can become a " member" of NEAP by contributing $12.00 annually." !
As NEAP has admitted," control of NEAP is vested solely in its Board members. In fact, NEAP appears to be little more than-the alter ego of Mr. Saporito. He is the founder of NEAP, its offices are in his home, he fills at least three different positions in the organization, and he obviously exercises a highly significant influence over its management and affairs." Given these circumstances and the lack of
- participatory rights in NEAP for other " members," the designation I L j
" NEAP's Response to the ASLB's Memorandum and Order (May 5, 1990) at 2-3 (emphasis added).
"This flier was attached to Licensee's Answer in opposition I to Request for Hearing and Petition for Leave to Intervene I (January 10, 1990).
" NEAP confirms that the Licensing Board correctly understood the terms of the by-laws of NEAP limiting the direct control of the: organization to the Board members, none of whom reside or are any longer full time employees within the
. geographical zone of interest. Response of Nuclear Energy Accountability Project and Thomas J. Saporito to Florida Power and' Light's Notion for Reconsideration and Dismissal of Petition to Intervene (July 10, 1990) at 3 n. 1.
"Mr. Saporito is Executive Director, President and Treasurer of NEAP. Amended Petition at 11.
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of Ms. Bremenoff and other individuals as " members" of NEAP constitutes an attempt to use them as a bootstrap to enable Mr. Gaporito, as NEAP's alter ego, to participate in this l proceeding and espouse his own concerns after he had withdrawn i from the proceading and been. dismissed as a party. The case and controversy principles which underlay " contemporaneous judicial
]
concepts of standing" are intended to prevent such a result.
l Given the fact that the " members" of NEAP, including Ms. Brezenof f, do not have any voting rights and do not otherwise appear to have the right to exercise any control over the affairs of NEAP, it is apparent that Ms. Brezenoff does not possess any
" indicia-of membership" in NEAP that would be sufficient to confer standing on it. She is not on the board of trustees which controls NEAP's activities; there is no indication that she is an officer of NEAP; and as a " member" of NEAP she has no voting rights. Thus, even if Ms. Brezenoff has made a small financial contribution to NEAP, she remains a " member" in name only. Such
" membership" is not sufficient to give NEAP standing because, as discussed in clonlara, 722 F. Supp. at 1450-51, an organization L
cannot achieve representational standing merely by bestowing the title of " member" on an individual who may possess personal standing. Similarly, any membership fec paid by Ms. Brezenoff would not be sufficient to confer standing on NEAP because, as discussed in Health Research Group, 82 F.R.D. at 26-27, a p " financial contribution alone does not constitute " indicia of i membership." As the cases discussed above demonstrate, an
, e- v essential element of the necessary " indicia of membership" is the ability to exercise some control (such as voting rights) over the organization. Since NEAP has not given Ns. Bremenoff or its other purported " members" such power, they do not possess
" indicia of membership" and NEAP cannot derive its standing from them.
Appellant would instead have the Appeal Board replace the " indicia of membership" requirement with a process whereby an organization seeking representational standing in an NRC proceeding need only state that a particular individual, having authorized the organization to represent her concerns, is a
" member" on whom that organization's standing may be based."
If the Appellant's view is to be credited, it is irrelevant whether the organization's representative has any control or participation in the organization. Indeed, the individual need not have any contact with the organization beyond signing a i
" statement to represent." NEAP's formulation robs the -;
requirement of "indicie of membership" in an organization of any meaningful content. Such a formulation is also contrary to the Licensing Board's unambiguous instructions to NEAP in its !
April 24, 1990 Memorandum and Order.
- c. None of the other individuals identified by NEAP possess the requisite " indicia of membership" Appellant also argues that organizational standing is demonstrated on a representational basis through members other "Ega Appellant Brief at 52.
than Mr. Saporito. NEAP argues standing was demonstrated when
" NEAP offered the names of five different members in support of its claim for organisational standing: Weinkle, Wilson, Edelson, and Bresenoff (as to the original Petition) and Weinkle, Firmino, Edelson, and Bresenoff (as to the Amended Petition)." The insufficiency of the Bresanoff affidavit and her lack of " indicia of membership" have been discussed in detail above. There is no suggestion that any of the other four have enough control over NEAP to possess " indicia of membership."
In addition, it is unclear whether any of those four even regarded themselves as members - however defined - of NEAP.
Attached to letters from Mr. Saporito to the Office of the Secretary of the Commission dated January 6, January 12, and January 19, 1990, were identical documents styled " Statement for Permission to Represent" from, respectively, " NEAP member Astrid Weinkle," " NEAP member Judith White Edelson, and " NEAP members Shirley Brezenoff and Maria Firmino." Each " Statement for Permission to Represent" declared, above the signature, that:
Please be advised that I, the undersigned, have voluntarily given my permission to the Nuclear Energy Accountability Project (NEAP) and Thomas J. Saporito, Jr., Executive j Director of NEAP, to effectively represent my interests in the above-styled proceeding before the Nuclear Regulatory Commission.
As the Licensing Boart hos noted, the Weinkle and Edelson statemen s did not state that the individual involved is a member
" Appellant Brief at 44-45.
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of NEAP or describe ~any injury suffered." And'none of the statements provided any information to indicate the signatories possessed " indicia of membership" in NEAP. It was clearly for this reason that the Licensing Board subsequently specifically required that the individuals NEAP was purporting to represent as its members file statements stating: their desire to be represented by NEAP; their personal interest in the proceeding; the precise date they became members of NEAP; that they are currently NEAP members; and c9mmunicating their understanding of
.their privileges. Only Ms. Brezenoff purported to respond, and as is demonstrated above, that response was inadequate. Clearly,
.therefore, NEAP cannot claim standing on the basis of its representation of " members" other'than Mr. Saporito,
- d. Additional arguments cited in Section II of HEAP's Brief bear no relevance to the issue of NEAP's representational standing Section II of the Appellant Brief makes two arguments which.are irrelevant to the issue of its representational standing. However, even if they were rels/ ant, they would lack
' merit..
"Msnarandum and Order (unpublished) (April 24, 1990) at 7 n.4. Although the Brezenoff and Firmino letters were not mentioned in the April 24, 1990 Memorandum and Order, the Licensing Board's judgement as to the insufficiency of Ms.
heinkle and Ms. Edelson's " Statements" is likewise applicable to those signed by Ms. Brezenoff and Ms. Firmino since they were identical. Neither stated that the signatory was a member of LEA 2 or described any in3ury suffered. No statement or affidavit was filed by Mr. Wilson.
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Appellant suggests that the distribution of information and utilization of libraries in the general vicinity of the plant-
. constitutes evidence of NEAP's activities sufficient to give it standing." The relevance of this point to NEAP's
- representational-standing is not clear. In any event, the Appellant fails to provide information concerning the scope or ,
. frequency of those activities. Without being fleshed out, these claims are: clearly' inadequate to show the frequency and consistency of the activities." Appellant simply does not provide enough information upon which to determine standing. -Nor does.the Appellant argue that the Licensing Board abused its discretion'in not according NEAP yet another opportunity to
'present additional information pertaining to these activities.
, Appellant also argues that the 50-mile ' zone of interest" is "not a bright-line boundary" and "is not to be l
1' mechanically' applied." It goes on to suggest that "given recent I l
historical experience, there should be some doubt whether a zone- '
, J. of 50 or even 100 miles around a nuclear plant is sufficient to
[k describe the geographic zone to be affected by an accidental 1
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f " Appellant Brief at 42.
"The insufficiency of the information provided as to "other
! activities" was.noted by both Licensee and NRC Staff in their n -responses tc NEAP's Petition. See Licensee's Answer in Opposition to Request for Hearing and Petition for. Leave to 4
Intervene at'4-7 (January 10, 1990); NRC Staff Response to Request for Hearing and Petition for Leave to Intervene.of Nuclear Energy Accountability Project and Thomas J. Saporito, Jr.
a t .7 (January 16, 1990). l 1
t release of fission products."" The short answer to this argument is that no one in this proceeding, not FPL, not the NRC L
-Staff and not the Licensing Board, have ever suggested that the '
~ '
" sone of interest" is subject to such a rigid geographic test.
However, any petitioner alleging that he will be affected by a release of raciation from a nuclear plant does have an obligation to do something more than state that there have been experiences !
in which releases from a different plant with a different design, possibly in a different country have had significant impacts beyond 50 miles. They must show some reasonable likelihood that an accident in the plant involved will affect their health and safety. ' Jhug Cleveland Electric Illuminating Co. (Perry Nuclear
Sam also, Florida Power & Light Co. (St. Lucie Nuclear Power Plant), LBP-87-2, 25 NRC 32, 34 (1987). NEAP never even attempted to do so here.
C. 'The Licensing. Board's Denial of Discretionary Standing to M P was Proper add should me Affirmed.
The final issue raised by Appellant concerns the Licensing Board's denial of discretionary intervention to f i
NEAP." In the July 17, 1990 Order which is the subject of this
,,, appeal, the Licensing Board applied each of the six pertinent t
M Appellant Brief at 50-52.
" Appellant Brief at 53-57. The Brief makes reference to both NEAP and Mr. Saporito. However, as indicated at the outset, Mr. Saporito is.not a party to the instant appeal. San fn. 2, supra.- Accordingly, denial of discretionary intervention pertaining to him is not in issue.
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factors." In'so doing, it properly emphasized the first factor; ima , the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound 5
-record.. Sam, e g , portland canaval rimetric, CLI-76-27, 4 NRC at 617;-Tennessee Valley Authority (Watte Bar Nuclear Plant, Units-1 and 2), 5 NRC 1418, 1422 (1977)."
l "32 NRC at 15-17 n.16. Weighing in favor of-allowing intervention --
(1) The extent to which the petitioner's participatisn 1 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 possible effect of any order which may be entered In the proceeding on the petitioner's interest.
Weighing against allowing intervention -- ,
(4) The availability of other means whereby e petitioner's interest will be protected. i (5) 1 The extent to which the petitioner's interest will-be= represented by existing parties.
(6). The' extent to which petitioner's participation will inappropriately broaden or delay the proceeding.
(Portland ceneral Elec., 4 NRC at 616.
"In these_-circumstances, the decision as to whether to grant NEAP discretionary intervention' involves considerations very different from those where the question precented is whether
_; intervenors who were. unable to establish legal standing should be permitted to: participate in a proceeding which would be conducted-regardless. 'The basic question presented here is whether a i
' person,not legally entitled to a hearing will, nevertheless, be
. permitted to launch one which would not otherwise be held. The need for a strong showing as to a potential contribution should (continued...)
- e. . .
1 In applying that factor, the Board concluded that "the -
4 principal evidence that NEAP offers that-it can make a valuable contribution is the Affidavit of [ NEAP Executive Director) Thomas Saporito, Jr." 32 NRC'at 16. The Board noted, however, that Mr.
Saporito had little time to devote to the proceedings, and that he was largely without assistance. Id.
More significantly, the Board observed that Mr. Saporito brought virtually no pertinent technical expertise to the subject of the proceeding. It noted that, in developing 4 contentions, Mr. Saporito had done little more'than reference changes in. technical specifications -- already identified by FPL -- where relaxations in requirements would occur, en.4 allege omissions in Licensee's analysis. Generally, NEAP failed to advance any independent basis for its contentions. Juiu at 16-17.
This is not surprising. As the Licensing-Board noted ,
' NEAP's request for discretionary intervention was essentially basedtupon the allegedly valuable contribution which Mr. Saporito could make., However, the affidavit to which the Licensing Board referred essentially did no more than identify.Mr. Saporito's qualifications and experience as an Instrument and Control
, j- Technician. That experience-may qualify him to perform
' ', , calibrations or tests 1 required by a procedure specified in a technical specification. However, it does not qualify him to I
y
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"(... continued) be especially pressing in such circumstances. Ena Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), 5 NRC i 1418, 1422-(1977).
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analyze and make judgments concerning the safety related> bases for such specification. Mr. Saporito did not assert any expertise in performing -- and does not appear to be qualified to ;
perform -- safety evaluations concerning the adequacy of the type of technical specification limits requirements that are the j1 subject of the amendments in question. . The Board was fully ;
= justified in: concluding: -)
.1 When we evaluate the nature of NEAP's I contribution, using the standard for l
. permissive intervention, we find that it is J not entitled to permissive intervention. Ma are particularly concerned that NEAD has not brought to bear any substantial ernertime to demonstrate the imnortance and immediacy of ita'concerna or to-justify the necessity of considering them.. Becauss of-the way in which the case has been presented, it han been'left to the Board to analyze the record I and use:its own exnertine to determine the
-Importance of NEAD's concerns.
Lii at 17: (emphasis added) . ;
Under the circumstances, there is no basis for concluding that the Board abused the discretion granted it to -!
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-decide whether or not permissive intervention should be allowed. I l
, Accordingly,Jthe Board's determination should be upheld.
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V.
III. CONCLUSION The Licensing Board properly found that NEAP did-not possess sufficient legal interest to support standing either: (1) as an organization, on an institutional basis; or (2) in a representational capacity. Further, the Board did not abuse its discretion in denying NEAP permissive intervention. Accordingly, the July 17, 1990 Order dismissing NEAP should be affirmed.
Respectfully submitted,- a
% i Hafo~1d F.'Reis def1 D
Michael A. Bauser James Vigil, Jr.
Newman &-Holtzinger, P.C. )
1615 L Street,~N.W.
Suite 1000 )
Washington, D.C. 20036 (202) 955-6600.
Co-Counsel .l
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John T. Butler Steel Hector & Davis 4000' Southeast Financial Center Miami, Florida 33131 -
(305) 577-2800 Date. this lith day of October _1990
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DDChEIED U$NRC UNITED STATES or AMERICA l
NvCLEAR REovLAT0mY CouwIssION 90 DCT 12 A10:54 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL @l N HCROARY 00CnfimG % '.LevlCL ,
LRANC4 In.the Matter of )
)
FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-250 OLA-5
) 50-251 OLA-5 (Turkey Point Plant, )
Units 3 & 4) ) (Technical specifications
) Replacement)
CERTIFICATE OF SERVICE i
I hereby certify that a copy of the " Licensee's Brief in Response to the NEAP Appeal of the Licensing Board's. July 17, 1990 Memorandum.and. Order.(Notion to Dismiss)" in the above '
captioned proceeding, dated October 11, 1990, was served on the J persons designated below by deposit in the United States mail, !
first class postage paid on-this date.
Thomas S. Moore, Chairman G. Paul Bollwerk, III Atomic Safety and~ Licensing Atomic Safety'and Licensing
._AppealfBoard . Appeal Board U.S. Nuclear. Regulatory- U.S. Nuclear Regulatory D Commission- Commission-
, Washington, D.C. 20555 Washington,.D.C. 20555
'Howard A. Wilber Peter B. Bloch, Chairman 3 < JAtomic.. Safety and Licensing Atomic Safety and Licensing f . Appeal. Board: ..
Board 4
U.S. Nuclear regulatory U.S. Nuclear Regulatory, Commission Commission 1 Washington, D.C. -20555 Washington,-D.C. 20555 Dr'.' George C.: Anderson .
Elizabeth:B. Johnson ;
',. ' Atomic ~ Safety =and Licensing Atomic Safety and Licensing Boardi. Board j 77191 Ridge' Drive, N.E. Oak Ridge National Laboratory Seattle, Washington 98115 P.O. Box 2008 Bethel Valley Road, Bldg. 3500 Oak Ridge, Tennessee 37831 4
4
Af' o.
l l
Atomic Safety and Licensing' Atomic Safety and Licensing Board Panel . Appeal Board Panel Adjudicatory File . Adjudicatory File U.S.. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission ,
L; Washington, D.C. 20555 Washington, D.C. 20555 (two copies) (three copies)
Billie Pirner Garde, Esquire Billie Pirner Garde, Esquire-Hardy, Milutin & Johns 103 East College Avenue .
500 Two Houston Center Appleton, Wisconsin 54911 ,
Suite 500 909 Fannin at McKinney Houston, Texas 77010 Office of the Secretary Jtnice E.. Moore, Esquire U.S. Nuclear Regulatory Patricia a. Jehle, Esquire Commission Office of General Counsel !
Washington, D.C. 20555 U.S. NO: lear Regulatory ATTN: -Chief, Docketing and= Commission Service Section Wasington, D.C. 20555 '
(Original plus two copies)
Stewart Ebneter. John T. Butisr, Esquire Regional Administrator. Steel, Hector & Davis
.U.S. Nuclear Regulatory 4000 Southeast Financial ;
Commission, Region II ' Center f
. 101'Marietta=St.,.N.W. #2900 Miami, Florida 33113 Atlanta, Georgia' 30323 Thomas J. Saporito, Jr.
Executive Director
. Nuclear Energy Accountability Project :
P.O.' Box 129 Jupiter, Florida 33458-0129 Dated this lith day of October 1990.
h Michael A'. Bauser Newman & Holtzinger, P.C.
g 1615 L Street, N.W.
Suite 1000 Washington, D.C. 20036
.