ML19210D371

Supplemental Petition for Review of ALAB-552 & ALAB-559,in Response to Commission 791016 Order Re Aslab Rejection of Indian Tribes 790220 Petition for Review of ALAB-523.ASLAB Misapplied Good Cause Factor.W/Certificate of Svc

ML19210D371
Person / Time
Site:	Skagit
Issue date:	11/05/1979
From:	Busch R, Means D EVERGREEN LEGAL SERVICES, MEANS, DONALD S.
To:	NRC COMMISSION (OCM)
References
NUDOCS 7911260366
Download: ML19210D371 (10)

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UNITED STATES OF AMERICA 9 NOV C NUCLEAR REGULATORY COMMISSION - 719793 '-f2

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PUGET SOUND POWER & LIGHT ) DOCKET NOS. STN 50-522 COMPANY, et al., ) 50-523

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(Skagit Nuclear Power Project, ) November 5,1979

, Units 1 and 2) )

INTERVENOR TRIBES' SUPPLEMENTAL fdIIIION FOR REVIEW I,NTRODUCTION Almost seventeen conths ago, the Upper Skagit, Sauk-Suiattle and Swinomish Tribes petitioned the Licensing Board for leave to intervene out-of-time. Since then they have filed numerous liiefs, made specific contentions , and offered testinony on issues directly affecting the tribes. We pointed out then and we repeat now that of all possible parties to these dockets the tribes have perhaps the greatest stake in the outcome. -

Indian participation has been the subj ect of two (in-consistent) Licensing Board decisions and four Appeal Board decisions.

Because there appeared to be at least a question of finality with respect to some of those ea lier orders, the tribes thought it prudent to file a Petition For Review in 17,91 042 3

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the District of Columbia Circuit Court of Appeals in order to prevent expiration of any applicable statutory time limitations. The filing of such a " protective" petition is without prejudice to review here. It is our understanding that the circuit court proceedings can be held in abeyance to accomodate any review by the Commission.

We note that recent continuances , and the year that will soon have passed since Judge Jensch's decision grant-ing intervention, bear out his observation:

...this proceeding reflects a changing scene, alterations, redesign, and new data which have been presented continuously since the hearings cocnenced.

Because of page and time limits and because of the number and complexity of issues which should be reviewed, this supplemental petition is drafted in compliance with 10 C.F.R. 52.786, but is not intended to limit the scope of review.

DECISIONS OF TdICH REVIEW IS SOUGHT On February 20, 1979, petitioners asked this Cocmis-sion to review ALAB-523 (January 29, 1979), which reversed the Licensing Board and remanded the matter to a reconsti-tuted Licensing Board. The Cocmission deferred considera-tion of that petition pending action by the Licensing Board on remand and any subsequent review by the Appeal Board.

On June 1, 1979, the Licensing Board entered an order denying intervention. The tribes appealed on June 14. On 1301 043

July 9, the Appeal Board entered ALAB-552, rej ecting mu:h of the Tribes explanation for their tardiness and sugge-sting a supplemental memorandum. On August 31, the Appeal Board ente' red ALAB-559, affirming the denial of intervention.

On October 16, 1979, this Co= mission served by mail its order giving the tribes fifteen additional days to file a supplemental petition for review on ALAB-552 and ALAB-559.

This petition responds to that order.

RECORD BEFORE THE' APPEAL BOARD The matters of fact and law raised in this petition are contained in the following pleadings and were a part of the record before the Appeal Board:

Brief in Support of Petition to Intervene of Upper Skagit Tribe, Sadk-Suiattle Triae and Swinomish Tribal Community - June 13, 1978.

Petitioner Tribes' Reply Brief to Answers of NR.C Staff and Applicant - Septe=ber 5, 1978.

Petitioner Tribes' Response to the Board's Request of September 26, 1978 - October 27, 1978.

Intervenor Tribes' Brief in Opposition to Applicants' Appeal and in Support of Licensing Board Decision and Order Granting Intervention - December 26, 1978.

Intervenor Tribes' Response to December 22, 1978, Order for Conference - January 11, 1979.

Intervenor Tribes' Interim Statement of Issues in Response to the Order of February 8, 1979 - March 12, 1979.

Brief of Swinomish Tribal Com= unity, Upper Skagit Indian Tribe and Sauk-Suiattle Indian Tribe in Support of Appeal - June 14, 1979.

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Petitioner Tribes' Supplemental Memorandum in Response to O'rder of July 9, 1979 - July 30, 1979.

Two matters mentioned in this supplemental petition were not before the Appeal Board. First, the indefinite delay of proceedings with postponement of scheduled hearings ,

due to additional geologic information and new issues raised by TMI 2, was not before the Appeal Board because the infor-mation came to light subsequent to the filing of ALA3-559.

Second, the tribes did not become aware that the Licensing Board Chairman did not perceive the tribes as intervening local governments until after ALA3-552 and after the filing of the supplemental brief suggested there.

ERRORS COMMITTED BY THE APPEAL BOARD It is the u ntention of the tribes that the Appeal Board crred repeatedly in applying the various factors listed in 10 C.F.'R. 52.714(a). This pervasive error not only raises the serious procedural questions necessary to justify full Commission review but also, in various parti-culars, raises additional policy questions.

The Appeal Board misapplies the " good cause" factor by requiring an especially strong showing on this factor, by i= posing such a showing as a threshold before going on to the other four factors, and by failing to include " good cause" as one of five co-equal factors to be considered.

The Appeal Board also pre-judges the weight to be given this factor by effectively making it a barrier.

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The Appeal Board majority's treatment of the factor

" assist in developing a sound record" is callous, judgmental and wrong. The maj ority relies upon "past experience."

Petitioners doubt that the Appeal Board has sufficient ex-perience with Indian governments to support its bias. Fur-ther, the Appeal Board misstated the test under this factor, imposing the requirement of a " substantial contribution."

For the tribes, the issue of sufficiency of the re-cord is less academic. They offer the following, inter alia:

A completed engineering study based upon field measurements indicating that pressurized reactor vessel transport will require dredging of one portion of the river, involve extremely close tolerances with respect to certain bridges, and interfere not only with salmon habitat, but treaty fishing activities. -

An engineering study, based on field measure-ments, she' wing extreme flood scour depths at the diffuser site; showing excreme adverse fisheries impacts during diffuser construction; showing that the diffuser structure will, during floods, cause erosion of the opposite stream bank, change the stream channel configuration over the diffuser and possibly in the wild and scenic area, and result in the deposition of stream bed sediments on the upstream side of the diffuser.

A study by a fisheries toxicologist indicating the probability of a definitely toxic-to-salmon situation outside of the mixing zone at the diffuser.

A review, using ground water pu= ping boundaries ,

of Ranney collector interference with surface salmon streans and sloughs.

A review and assessment of construction impacts on fisheries, which Staff admits but does not quantify, especially as to Indians.

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Computation of actual ground level concentra-tions and doses (presently unavailable) for Indians fishing or otherwice present in the LPZ and adj acent area. Indian fishermen were not listed as a transient population and no

. assessment of genetic and somatic effects can be made until some determination is made as to dosage.

Studies tending to show unresolved genetic and somatic risks to Indian receptors and their progeny, not only as closed populations, but also due to higher exposures and distinct health indicator patterns.

A socio-economic review assessing risks to Indian communities not presently addressed by NRC Staff or Applicant.

A critical review of the interference of a warm water hatchery with present state and tribal management of Skagit River fisheries.

A much more concise assessment of the extreme importance of the Skagit River wild fish runs to American and Canadian fisheries.

When dealing with representation by existing parties, the Appeal Board majority makes similar errors. It fails to recognize the tribes as governments and instead treats them as public interest intervenors. It also fails to make a distinction between any representation and the extent of representation. -

Lastly, the Appeal Board errs in applying the " broaden and delay" factor, focusing on whether there will be delay, rather than its extent. But overshadowing this, and affecting the entire decision, is the unfairness of in-cluding the time between the tribes' petition and ALA3 ,559, plus any additional appeal time here, in the time to be

counted against the tribes , particularly in view of the delays to these proceedings from other causes.

The majority further compcunded its error by failing to n'ote that Indian intervention would not unduly broaden the issues.

In addition, the majority neglected to take subsection (d) factors into account, thus failing to put in the balance the unusually large extent of the tribes' interest in the proceedings and the extent to which they may be affected by the proceedings.

WHY COMMISSION REVIEW SHOULD BE EXERCISED Defining good cause as a special threshold factor and requiring a more substantial showing thereon is directly contrary to the 1978 amendments to 52.714(a) and consci-tutes adjudicative rule making. This and the other proce-dural errors already detailed raise several important pro-cedural issues.

Instead of responding to the appeal from the June 1 Licensing Board Order, the Appeal. Board simply reviewed the question of intervention for itself, acting de novo outside its discretion and expertise as a second licensing board.

In addition, the decision to impose agency delay on petitioners when reviewing extent of delay raisee both poli-cy and procedural questions, as well as questions of fairness.

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The majority's lack of familiarity with Indian fishing rights adds to the unfairness. The United States Supreme Court finally resolved the fishing rights controvery earlier this year, as noted by Mr. Farrar. This is a major factor with respect to good cause for failure to file on time and with respect to the unique status of the fishing right.

The final irony is that Commission policy allows Skagit County to participate (even though four and one-half years out-of-time) as an interested local government , yet denies federally recognized tribal governments intervention.

CONCLUSION As the dissent to ALAB-559 points out, this is an extremely significant case. The exclusion of federally recognized governments whose menbers live and fish in, and near, the LPZ cannot help but override technical considera-tions and casts doubt upon the entire licensing process.

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lnJ/1s./6s Donale S. Means

/Russell W. Busch

/ 4 Attorney for Swinomish Tribal Attorney for Sauk-Suiattle and Community Upper Skagit Tribes P.O. Box 277 520 Smith Tower LaConner, Washington 98257 Seattle, Washington 98104 (206) 466-3163 (206) 464-5888 1301 049

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UNITED STATES OF AhERICA usag \\

NUCLEAR REGULATORY COMMISSION 9 gg,p BEFORE THE NUCLEAR REGULATORY COMMISSI &

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In the Matter of ) 4'/ % ) W '

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PUGET SOUND POWER & LIGHT ) DOCKET NOS. STN 50-522 COMPANY, et al., ) -

50-523

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(Skagit Nuclear Power Project, ) November 5, 1979 Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that the following:

INTERVENOR TRIBES' SUPPLEMENTAL PETITION FOR REVIEW 1- the above-captioned proceeding was served upon perso,ns shown on the attached list be depositing copies thereof in the United States Mail with proper postage affixed for First Class Mail and upon Roger M. Leed, attorney for Intervenor, SCANP, and F. Theodore Thomsen, attorney for Applicant, by depositing the sa=e with Legal Messengers, Inc.

Dated: November 5, 1979. -

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f p A Russell W. Busch Evergreen Legal Services Native American Proj ect 520 Smith Tower 506 Second Avenue Seattle, Washington 98104 (206) 464-5938 I39l OSO

D""}D }l3' }g J o a Ju o Ju 2. k Lnl _.3 Jr. Frank F. Hooper, Member Thomas Moser

%tomic Safety & Licensing Bd. CFSP and FOB Deputy Prosecuting Attorney ichool of Natural Resources E. Stachon and L. Marbet skagit County Courthouse lniversity of Micnigan 19142 S. Bakers Ferry Road Mt. Vernon, WA 98273 Ann Arbor, MI 48104 Boring, Oregon 97009

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Richard D. Bach, Esq.

3ustave A. Linenberger,. Member Alan P. O' Kelly Rives, Bonhyadi, Drumond &

4temic Safety & Licensing Bd. Paine, Lowe, Coffin, Herman & Smith J.S. Nuclear Regulatory Com. O' Kelly . 920 S.W. 6th Ave 1400 Wash. Trust Finan. Ctr. 1400 Public Service Bldg.

dashington, D.C. 20555

_ Spokane, WA 99204 _ _ Portland, OR_ 97204 ._

Alan S. Rosenthal, Chairman Conrn. Victor Gilinsky Jocketing & Service Section U.S. Nuclear Regulatory Ccmm.

]ffice of the Secretary Atomic Safety & Licensing Appeal Board Washington, D.C. 20555 J.S. Nuclear Regulatory Com.

dashington, D.C. 20555 U.S. Nuclear Regulatory Com.

Washington, D.C. 20555 Richard L. Black, Esq. Dr. John H. Buck, Member Comissioner Richard Kennedy Counsel for NRC Staff Atomic Safety & Licensing U.S. Nuclear Regulatory Com.

U.S. Nuclear Regulatory Com. Appeal Board Washington, D.C. 20555 dashington, D.C. 20555 U.S. Nuclear Regulatory Comm.

Washington, D.C. 29555 Valentine B. Deale, Chairman Michael C. Farrar Member Chaiman Joseph Hendrie Atomic Safety & Licensing Bd. U.S. Nuclear Regulatory Comm.

Atomic Safety & Licensing Bd. Washington, D.C. 20555 1001 Connecticut Ave. N.W. U.S. Nuclear Regulatory Com.

Washington, D.C. 20036 Washington, D.C. 20555 Nicholas D. Lewis, Chairman F. Theodors Themsen Perkins, Cofe, Stone, Olsen & Energy Facility Site Evaluation Commissioner Peter Bradford Council U.S. Nuc1rsr Regulatory Comm.

Williams Washington, D.C. 20555 1900 Washington Bldg. B20 East Fifth Avenue seattle, WA 98273 Olympia, WA 98504 Robert C. Schofield, Director Richard M. Sandvik, Esq.

Asst. Atty. General Skagit County Planning Dept. Ccmissioner John Ahearne 120 West Kincaid Street U.S. Nuclear Regulatory Com.

Dept. of Justice Washington, D.C.

520 S.W. Yamhill, 500 Pac. Bld. Mount Vernon, WA '98273 20555 Portland, Oregon 97204 Robert Lowenstein, Esq. Canadian Consulate General Roger M. Leed, Esq.

Lowenstein, Newman, Reis & Peter A. van Brakel. Vice Consul 1411 - 4th Ave. Bldg.

Axelrad

. 412 Plazh 600 suite 610 1025 Connecticut Ave. N.W. 6th and Stewart Street Seattle, WA 98101 Washington, D.C. 20036 Seattle, WA 98101 H.H. Phil11ps. Esq. Warren Hastings, Esq.

Vice Pres. & Corporate Counsel Portland General Electric Co.

121 S.W. Salmon Street 121 S.W. salmen street 1zg1 '

Portland, Oregon 97204 Portland, OR 97204 0J1

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