ML19210E608
| ML19210E608 | |
| Person / Time | |
|---|---|
| Site: | Skagit |
| Issue date: | 11/21/1979 |
| From: | Black R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7912050376 | |
| Download: ML19210E608 (14) | |
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UNITED STATES OF AMERICA j5
-[j NUCLEAR REGULATORY COMMISSION
.\\c.,
BEFORE THE COMMISSION In the Matter of
)
)
PUGET SOUND POWER & LIGHT CCMPANY,
)
Occket Nos. STN 50-522
_ET _AL.
)
50-523
)
(Skagit Nuclear Power Project,
)
Units 1 and 2)
)
NRC STAFF'S RESPONSE IN OPPOSITION TO TRISES' SUPPLEMENTAL PETITION FOR REVIEW I.
INTRODUCTION The present action arises out of a construction permit proceeding involving the proposed Skagit nuclear facility to be located in the Skagit River Valley in the State of Washington. The proceeding was noticed for hearing on December 20, 1974 (39 Fed. Rec. 46065).
That notice established January 20, 1975 as the deadline for filing petitions to intervene.
On June 13, 1978, the Upper Skagit Sauk-Suiattle and Swinanish Tribes (Petitioners or Tribes) petitioned the Atomic Safety and Licensing Soard (Licensing Board) for leave to interiene. The history of the consideration of the Tr,1bes' petition is complex and extends over more than a year during which numerous pleadings, replies, decisions and remands have been produced.
A chronclogical listing of the major pleadings and decisions on this mat.ee is set forth in Appendix A attached to this pleading.
The major '.icensir.g Board ar,d Atcmic Safety and Licensing Appeal Board (Appeal Board) decisions that led to the Tribes' filing of tais Sucplemental Petition for Review on Ncvemoer 5,1979 are summari:ed below.
1502 221 7912050 3 74
. The Licensing Board initially granted the Tribes' petition for intervention on November 24, 1978 (LBP-78-38, 8 NRC 587). The Appeal Board vacated that decision and remanded the Tribes' petition to the Licensing Board for further considerction on January 29,1979 (ALAB-523, 9 NRC 58).
The Tribes filed with the Canmissicn an initial Petition for Review of the Appeal Board's remand decision on February 29, 1979. The Comission issued an Order deferring action on that Petition on March 8,1979 until the Licensing Board completed its consideration of the matter on remand and any subsequent review by the Appeal Board. On remand, the Licensing Board denied the Tribes' petition for intervention (Order dated June 1,1979) and the Tribes' appealed that detemination.
The Appeal Board, af ter preliminarily considering the Tribe';' appeal, issued a Memorandum and Order dated July 9,1979 (ALAB-552), noting particular deficienc.
with respect to the Tribes attempt to establish substantial
" good cause" for their late-filed petition and pemitting the Tribes an opportunity to address the deficiencies.
Supplemental memoranda were filed by the parties and on August 31, 1979 the Appeal Board denied the petition on the grounds that it was untimely ( ALAB-559).
In an Orger dated October 15, 1979, the Commission provided an opportunity for the Tribes to file a supple-mental petition for review with regard to ALAB-552 and ALAB-559 within 15 days of the semice of that Order.
On November 5,1979, the Tribes filed this Supplemental Petition for Review seeking Ccemis! ion review of the Acceal Board aecisions.
1502 222
In support of its request for Commission review, the Tribes allege that the Appeal Board committed error in its consideration and balancing of the factors listed in 10 CFR i 2.714(a)(1) for late-filed petitions to intervene.
In addition, the Tribes assert that the Appeal Board committed error in neglecting to consider the factors set forth in 10 CFR i 2.714(d).
The NRC Staff opposes the Tribes' request because its Supplemental Petition for Review does not contain allegations of error which meet the requirements of 10 CFR li 2.786(b) (4)(i)-(iii) as discussed in detail below.
II.
COMMISSION REVIEW IS NOT WARRANTED BY THE ALLEGATIONS OF ERROR SET OUT IN THE TRISES' SUPPLEMENTAL PETITION FOR REVIEW In May 1977, the Commission published an amendment to its rules of practice providing a procedure for parties to petition the Commission for a discre-tionary review of a decision or action of the Appeal Board.
In the Sta te-ment of Consideration which accompanied the rule, the Commission indicated that it intended to grant petitiens for review sparingly and that its intent was to provide "a set of strict rules in order to retain the concept of a limited review," 42 Fed. Rec. 22123 (May 2,1977). Accordingly, the Commis-sion stated it preferred "not to exercise its discretion within the enumerated areas of constraint in i 2.786(b)(4)(ii), (iii) and (iv)."
Some degree of discretion would be applied to matters contained in i 2.786(b)(4)(1) (3.).
The Staff nas followed this guidance in its consideration of the errors alleged in the Supplemental Petition for review and has detemined, for the reasons discussed below, that none warrant Ccr. mission review.
1502 223
. A.
The Tribes A11ecation that the Aopeal Board Erred in Recuirinc an Escecialk Strona Show1nc of Good Cause to Overcome the Extreme Tarc1 ness of The1r Petition Does Not Involve an [moortant Policy or Procedural gestien The Appeal Board gave careful censideration to the Tribes' proferred excuses for its late filing.
(Se_e_, ALAB-552, Slip op. pp. 7-18; ALAB-559, Slip op.
- pp. 2-13)
It rejected all of these justifications and reaffirmed its hold'ng in prior cases that in the instance of a very late petition, the substan-tiality of the excuse for lateness has a strong bearing on thn showing w%ich must be made by the tardy petitioner on the other factors enumerated in Section 2.714(a).
( ALAB-552, pp. 7-8; ALAB-559, pp. 2-3) The Tribes assert that the Appeal Board's required showing of good cause, in effect, created an impennissible barrier to the proper balancing of the other factors to be considered for an untimely petition.
(Petition, p. 4)
In the case of an extremely late petition to intersene, the Appeal Beard held that a very substantial showing of good cause for the late interventien mus t be made.
This required substantial shcwing of goed cause may be found to involve a procedural or policy matter en the consideration of late-filed pe ti tions.
However, exercise of the Commission's discretion to consider the Appeal Board holding dces not appear to be warranted since the Comissicn itself has sanctioned this requirement for a strong showing when it held tha t:
"[A]s the time for issuance of the construction pernit draws closer, licensing beards should scrutini:e more closely and carefully the petitioner's claims of goco cause.
A very late petiten must : resent a very strong reason for late intervention."
Florida Power and Licht M. (St. Lucie.'lant, Unit 2), CLI-78-12, 7 NRC 939 at 945 47 (1975;.
1502 224 Since the Appeal Scard and the Commission are in agreement with resoect to this procedural requirement, the Staff believes that this allegation of error does not involve an important procedural or policy issue warranting Commission review. Accordingly, review should not be granted in accordance with 10 CFR 5 2.786(b)(4)(i).
S.
The Tribes A11ecation of Error by the Acceal Board in its Detemination of Scme of tne Other Factors Listed in 10 CFR 6 2.714(a)(1) for Untimely Petitions to Intervene does not Involve a Factual Matter Decioed in an Inconsistent Manner The Tribes specifically allege error with regard to the Appeal Board considera-tion of sucn 10 CFR 9 2.714(a)(1) factors as whether the Tribes (1) are in a position to assist in developing a sound record, (2) will be represented by other parties to the proceeding, or (3) will broaden or delay the proceeding.
(Petition, pp. 5-7).
In each instance, the Tribes appear to be alleging that the Appeal Soard reached an improper factual detemination as to the Tribes' ability and resources to develop issues, the extent of representa-tion by existing parties on those issues raised by the Tribes, and the overall state of the record and the proceeding on those issues. After reviewing all of the arguments on these factors set forth in the various pleadings ey the Tribes and tne parties, both the Licensipg Board and tne Appeal Board decided these factual questions in a consistent way.
There can be no doubt that Licensing Boards have broad discretion wnen deciding whether a late petition should be granted or denied.
Nuclear Fuel Semices (West Valley Reprecessing Plant), CLI-75 4, 1 NRC 273, 275 (1975).
1502 225
. An Appeal Board's review of an order on late intervention is limited to.
detemining whether that discretion has been abused.
Vircinia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAS-342, 4 NRC 98,107 (1976); Public Service Caxany of Indiana, Inc. (Marble Hill Nuclear Ganerating Station, Units 1 and 2), ALAS-339, 4 NRC 20, 24 (1976).
The Appeal Board will look to the papers filed in the case and the uncontroverted facts set forth therein to detemine if the Licensing Board abused its discretion.
Florida Power and Licht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-420, 6 NRC 9 (1977).
In the present case, both the Licensing Board and the Appeal Board detemined that the Tribes' untimely petiton should be denied af ter careful and deliberate consideration of all the factors raised by the parties in their respective pleadings.
In this Supplemental Petition, the Tribes have not and, clearly, could not allege that the Appeal Soard abused its discretion when considering the facts surrounding this intervention a ttempt. The thrust of the arguments advanced by the Tribes on these factual matters is that they merely disagree with the Appeal Board's findings with respect to some of tne factors set forth in 10 CFR Q 2.714(a)(1).
We submit that the mere disagreement with factual deteminations made by an Appeal Board is insufficient to trigger Cccmission review. The Commission's regulations require that a petition for review will not be granted unless it appears that the Acpeal Soard has resolved a factual issue necessary for decisien in a clearly erroneous manner contrary to the resolution of tnat same issue by the Licensing Board.
10 CFR @ 2.786(b)(4)(11).
1502 226 In this proceeding, the consideration and balancing of the factors set forth in 10 CFR f 2.714(a)(1) has been resolved in a consistent manner by both the Licensing Board and the Appeal Board. Applying the guidance set out in the Statement of Consideration accompanying 10 CFR 5 2.786, Commission review of these factual matters should be denied.E C.
The Tribes Allecation that Both the Licensino Board and the Acceal Board Failed to Reccanize them as Intervenino Local Governments nas not Been Previously Raised The Tribes appear to raise an argument that both Boards should have considered the Tribes' petition to intervene under the " interested gas ernment" provisions of 10 CFR 12.715(c).
(Petition pp. 4, 6).
As such, the Staff believes that this argument has never been advanced by the Tribes and, accordingly, the Appeal Board did not address this issue in its decision.
(See Tribes' Petition for Review dated February 20, 1979 and briefs in support of appeal dated June 14 and July 30, 1979.)
In fact, the Tribes concede that they did not become aware that the Board did not perceive the Tribes as intervening local goverments until af ter ALAS-552 and the filing of the supplemental brief suggested there.
(Petition, p. 4)
In all prior pleadings the Tribes elected to intervene under the " interested party" previsions of 10 CFR i 2.~14 and not under the " interested government" provisions of 10 CFR 5 2.715(c). Accordingly, their late-filed petition was considered under the provisiens of 10 CFR 5 2.714 and subjected to the scrutiny required by 10 CFR i 2.714(a)(1).
1/
See Statement of Consideration, sucra, caragrach 5:
"The Commission celieves that as to factual matters, two 1.vels of decision within the agency are enough and there is no need for a third factual review cy the Caission i tself."
1502 227
. The NRC Staff submits that the Tribes' allegation of error with respect to the Appeal Board's failure to recognize the Tribes as an intervening local government cannot be reviewed by the Commission because it relies on matters that could have been but were not raised before the Appeal Soard.
10 CFR
@ 2.786(b)(4)(iii).
D.
The Tribes Allecation that the Acceal Board Nealected to Account for the Factors set fortn in 10 CFR % 2.714(d ) nas no Merit The Appeal Board's decision examined the factors set forth in 10 CFR @ 2.714(d) but concluded that they will rarely, if ever, be deteminative on the question of whether an untimely petiton should be granted, but rather they relate to the matter of standing to intervene which must be considered in passing ~ upon all intenention petitions.
See, Lena Island Lichtina Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAS-292, 2 NRC 631 at 635 (1975).
The Appeal Board noted that in this ins tance, the Tribes' standing is clear and, accordingly, the focus of all of the parties in their briefs to the Licensing and Appeal Boards was on the Section 2.714(a) factors rather than on Sec-tien 2.714(d) factors.
(ALAB-559, p. 14, n. 10) The Tribes allege that the Appeal Scard cmmitted error in not giving more consideration to Section 2.714(d) factors (Petition p. 7).
The Staff submits that the Appeal Board was correct in concluding that the Section 2.714(d) factors certain to a petitioner's standing -- that is, his interest and his rignt to be made a party to the oreceeding.
The Tribes' standing in this proceeding is not disputed by any party and, accorcingly, these factors have been noted but ceemphasi:ed by the Appeal Boarc, the 1502 228
9-parties and the Tribes since it has been conceded by all that the Tribes met the standing requirement to be made a party to this proceeding. Accordingly, this allegation of error has no merit and review should not be granted by tne Commission.
III.
CONCLUSION The Tribes' intervention presents a very close question that ultimately hinges on a balancing of the extreme tardiness of the petition against the unique interests advanced.-
After balancing all of the factors, both the Licensing Board and the Appeal Board concluded that tne extreme tardiness of the petition without a good excuse for such a late filing outweighed the unique interests advanced and, accordingly, denied the petition to interiene.
Tne Tribes new seek Commission review of that denial.
Commission review of an Appeal Board decision will not be granted where (1) the question raised does not involve an important procedural or policy issue, (2) it appears that the Appeal Board has resolved a factual issue necessary for decision in a clearly erroneous manner contrary to the resolu-tion of that same issue by the Licensing Board, or (3) th,e matter could have 1/
Ine Staff pre _vleusly supported the inter /ention of the Tribes on the one issue, health effects of Indian receptors, that would not be considered in the Skagit proceeding if the Tribes were not admitted as a party.
As we have previously indicated, the Staff is currently studying this issue and we will report to tne Licensing Board, the parties, and the Tribes the results of this study when they become available.
1502 229 been but was not raised before the Appeal Board.
See 10 CFR $s 2.785(b)(4)
(i)-(iii).
For the reasons set forth above, we submit this Petition for Review does not meet the standards for Commission review as stated in 10 CFR 5 2.735 and, accordingly, review should be denied.
Respectfully submif.yed, RW Richard L. Black Counsel for NRC Staff Cated at Bethesda, Maryland this 21seday of November,1979 1502 230
APPENDIX A -
Date Subject 6/13/78 Tribes' Petition for Leave to Intervene 7/28/78 Applicants' Answer to Petition 8/4/78 NRC Staff's Answer to Petition 9/5/78 Tribes' Reply Brief to Answers of NRC Staff and Applicant 9/26/78 Licensing Board's Request for Additional Infomation 10/27/78 Tribes' Response to Board's Request 11/17/78 Applicants' Response to Board's Request 11/21/78 NRC Staff's Response to Board's Request 11/24/78 Board Decision and Order Granting Intervention (!.?P-78-38, 8 NRC 587) 12/11/78 Applicants' Appeal of Board Cecision Granting Inter /ention 12/25/78 Tribes' Brief in Opposition to Applicant's Appeal 12/26/73 NRC Staff's Response to Applicants' Brief in Support of Appeal 1/1 2/ 79 Appeal Board's unpuolished order vacating and remanding Board decision granting intervention 1/29 /79 Appeal Board Decision Vacating and Remanding Board Decision (ALAB-523, 9 NRC 58) 2/2 0/ 79 Petition for Review of Intervenor Tribes 3/5 / 79 NRC Staff Answer to Petition to Review 3/ 7/ 79 Applicants' Answer in Opposition to Petition for Review of Indian Tribes 3/S/ 79 Commission Order deferring action on Petiticn for Review 4/24/79 Licensing Board orally anncunced decision to ceny Tribes' petition on remand 1502 231
. Date Subject 6/1/ 79 Board's Order Not to Entertain Untimely Petition to Intervene 6/14/79 Tribes' Notice of Aopeal 6/29/ 79 Applicants' 9rief in Opposition to Indian Tribes' Appeal 6/29/79 NRC Staff's Response to Indians' Brief in Support of Appeal 7/9 / 79 Appeal Board Memorandum and Order (ALAB-552) 7/3 0/ 79 Tribes' Supplemental Memorandum in Response to Order 8/9/ 79 Applicants' Reply to Tribes' Supplemental Memorandum 8/13/79 NRC Staff's Answer to Tribes' Supplemental Memorandum 8/31/ 79 Appeal Board Decision (ALAB-559) 10/15/79 Commission Crder providing for Tribes' Opportunity to File Supplemental Petition for Review 1 1 / 5/ 79 Tribes' Supplemental Petition for Retiew 1502 232
UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION BEFORE THE CCMMISSION In the Matter of
)
)
PUGET SOUND POWER & LIGHT COMPAri, )
)
Docket Nes. STN 50-522
)
STN 50-523 (Skagit Nuclear Power Project,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE IN OPPOSITION TO SUPPLE-MENTAL PETITION FOR REVIEW" in the above-captiened proceeding have been served on the following by deposit in the United States mail, first class, or, as indi-cated by an asterisk, through deposit in the Nuclear Regula:Ory Co=missien's internal = ail syste=, this 21st day of Nove=ber, 1979:
Alan S. Resenthal, Esq., Chairman
- Dr. Frank F. Hooper, Member Atomic Safety and Licensing Appeal Ato:ic Safety and Licensing Board 3 card School of Natural Resources U.S. Nuclear Regulatory Co==ission University of Michigan Washington, DC 20555 Ann Arbor, MI 48109 Dr. John H. Buck, Me=ber*
Mr. Gustave A. Linenberger*
Ato=1: Safe:S and Licensing Appeal Ate =ic Safety and Licensing Board 3 card U.S. Nuclear Regulatory Cc==issicn U.S. Nuclear Regulatory Cec =1ssion Washington, DC 20555 Washing:On, DC 20555 Robert Lowenstein, Esq.
Michael C. Farrar Esq., Me=ber*
Lowenstein, New=an, Reis, A::=i Safe:) and Licensing Appeal Axelrad & Reis 3 card Suite 1214 U.S. Nuclear Regulatory Co==issien 1025 Connecticut Avenue, N.W.
Washing:on, DC 20555 Washington, DC 20036 Valentine 3. Deale, Esq., Chair =an*
Rober: C. Schofield, Director Atemic Safety and Licensing Board Sk.gi County Planning Depart =en:
1C01 Connecticut Avenue, N.W.
120 W. Kincaid S:ree:
Washington, DC 20036 Mount Vernen, WA 98273 Denald W. Godard, Superviser Mr. Lloyd K. Marbe:
Si:ing and Regulation c/o Forelaws on 3 card Depart =ent of Energy 19142 S. 3akers Ferry R:ad Roc = lil, Labor and Industries Scring, CR 97009 3uilding Sale =, OR 97310
9 Mr. Nicholas D. Lewis Richard D. Bach, Esq.
Chair =an Rives, Sonyhadi & Dru==ond Washington State Energy Facility 1400 Public Service Building Site Evaluation Council 920 S. W. 6th Avenue 820 East Fifth Avenue Portl'and, OR 97204 Olympia, WA 98504 Roger M. Leed, Esq.
F. Theodore Thomsen, Esq.
1411 Fourth Avenue Perkins, Coie, Stone, Olsen Seattle, WA 98101
& Williams 1900 Washington Building Warren Hastings, Esq.
Seattle, WA 98101 Associate Corporate Counsel Portland General Electric Cc=pany Richard M. Sandvik, Esq.
121 S.W. Sal =on Street Assistant Attorney General Portland, OR 97204 State of Oregen Depart =ent of Justice James W. Durha=, Esq.
555 State Office Building Portland General Electric Company Portland, CR 97201 121 S.W. Sal =en Street T3 17 Canadian Consulate General Portland, OR 97204 Robert Grahas Vice-Consul Atomic Safety and Licensing Board 412 Plaza 600 Panel
- 6th & Stewart U.S. Nuclear Regulatory Co==ission Seattle, WA 98101 Washington, DC 20535 Themas F. Carr, Esq.
Acc=ic Safety and Licensing Appeal Assistant Attorney General Panel (3)*
Temple of Justice U.S. Nuclear Regulatory Co==ission Oly= pia, WA 98504 Washington, DC 20555 Patrick R. McMullen Docketing and Service Sectica (5)*
Skagit County Prosecuting Office of the Secretary Attorney U.S. Nuclear Regulatory Co==ission Courthouse Annex Washington, DC 20555 Mount Vernon, WA 98273 Samuel J. Chilk (12)*
Patrick Moore, PhD, President Secretary of the Co==ission Greenpeace Fcundation U.S. Nuclear Regulatory Co==ission P. O. Box 3430J Washingten, DC 20555 623 West 4th Avenue Vanceuver, E.C.
V6K IPS 1502 234 hA/
/
Ric$ardL.Ej k Counsel for
. Staff