ML19225A635
| ML19225A635 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 05/31/1979 |
| From: | Cutchin J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7907190722 | |
| Download: ML19225A635 (11) | |
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UNITED cTATES OF AMERICA 5/31/79 fuCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of NRC INmLn mqnggp pg o i o,
AP,IZONA PUBLIC SERVICE
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Docket Nos. STN 50-592 COMPANY, et al<
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STN 50-593 e 9
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UsNEC p.
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NRC STAFF'S ANSWER TO PETITION FOR LEAVE TO
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INTERVENE OF MORONGO BAND OF MISSION INDIANS g
ca t:) s The NRC Staff opposes the untimely petition for leave to intervene filed in the captioned matter by the Morongo Band of Mission Indians (MBMI).
The petition is dated May 11,1979--over four months af ter the deadline for raising envirorurer tal issue;, January 8,1979, that wa established in the supplemental notice of hearing.
43 Fed. Reg. 5759? (1978).
MBMI seeks to intervene, it says, because transmiesion lines associated with the subject facility will affect its tribal lands and members.
Although the Staff believes that MBMI has demonstrated standing, it believes also that MBMI has failed to justify its untimely petition based upon a balancing of the five factors set forth in 10 CFR 52.714(a)(1), and that MBMI has failed adequatoly to state, and set forth the bases for, an admissible contention.
UNTIMELY PETITION With respect to untimely petitions,10 CFR s?.711/a)(1) provides in pertinent part.
Nontirely filings will not be entertained aosent a determination by the Comuission, the presiding officer or the atomic safety and licensing board designated t; r ule c-the petition and/or request, that the petition and/or request should be granted based upon a balancing of the following factors in addition to those set out in paragraph (d) of this section:
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s (i) Good ca se, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be prote' ted.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) Thn extent to which the petitioner's participatim will broaden the issues or delay the proceeding.
Weighing of these factors in considering untimely petitions applies to petitions of Indian tribes as to afl other untimely petitions.
Puget Sound Power &
Light Co. (Skagit fluclear Power Project), ALAS-523, 9 f4RC 658 (1979).
Of the five factors to be balanced under 10 CFR 2.714(a), MBMI addresses only the first.
As good cause for its failure to file a timely petition,MBMI claims that the supplemental notice of December,, 1978 (43 Fed. Reg. 57694), was not sufficient to apprise it of the real scope of the proposed project and particularly of the proposed and alternate locations for electrical transmission facilities and their impact on petitioner's land.S H 'urther states that because it is an Indian tribe having a trust relationship to the Federal government, and because its lands are involved, it is entitled to actual notice and that failure to provide ectual notice to it is contrary to law.
(Petition at 1-3).
S n a letter dc ted February 27 from Mr. Forman of California Ind;an Legal IServices to Dr. Lazo, MBhl asked that it be sent all docurrents relating to the electrical transmission facilities for the subject project.
It was not sent that information at that time.
This information was available in the publ.c document room referenced in the notice of public hearing.
The Staff in the Draf t Environmental Statement issued about tvo weeks before the MEMI petition was filed finds that the transnission corridor crossing MBMI lands is environmentally acceptable.
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. MBMI admits tiat it became aware of this proceeding in late FeMuary 1979 (Petition at ?) and that it received actual notice of the proceeding o March 9, 1979 (Petition at 1).
Nevertheless, MBMI did not file its petition ;ntil May 11, 1979, over four months after the deadline for a timely filiig, and over two months after :eceiving actual notice of this proceeding.
In support of its claimed entitlement to actual notice MSMI cites two opinions of tha United States Supreme Court. 2/ Both opinions deal with due process requirements for actual, rather than constructive, notice in proceedings that could affect constit;tionally protected property rights.
Neither opinion is helpful to ;ne petitioner's claim, since, as MBMI recognizes (Petition at 3), the NRC lac ks jurisdiction in this licensing proceeding to condemn or otherwise regulatc the use of MBMI lands.
Consequently, this proceeding cannot affect property rights of MBMI.
S ongress has provided that, in pro-C In Section 189 of the Atomic Energy Act ceedings such as this one, the Commission shall hold u nearing af ter thirty 2_/ chroeder v. Cit / of New York, 371 U.S. 208 (1962) and Eisen v. Carlisle &
S Jacquelin, 417 U.S. 156 (1975).
! n Schroeder the question presented was whether the city deprived the appellant I
o' due process of law by failing to give her adequate notice of condemnation Voceedings af fecting certai property she owned.
In Eisen, a class action to recover allegedly improperly charged brokerage fees, the question was whether class members who were entitled to individual nctice under Section 23 of the Federal Rules of Civil Procedure and who were ident11iable through reason 3ble effort must indeed reccive individual notice or whether the circumstances warranted waiver of the rule.
In Eisen, as in Schroeder, property rights of the appellant could have been directly atfected, and the Court said that when actual notice is possible constructive notice is insufficient.
As the Staff shows below, and as PRMI admits, the property rights of "D'l cannot be directly af fected by this NRC proceeding.
Thus, it is not _ lear how McMI views these opinions as favorable to its clain that it was entitled to actual notice of this proceeding.
1!42 U.S.C. 2239.
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days notice and publication once in the Federal Register.
Section 2.104 of thc Commission's regulations 5/ issued under authority of the Atomic Energy Act provides that notice of proceedings such as this one be published in the Federal Register. Also, Congress has provided in the Federal Register Act that, "except in cases where notice by publication is insufficient in law," notice published in t.he Federal Register is deemed to be sufficient.
Neither statute nor regulation compels au furnishing of individual notice to MBMI in th% proceeding.
Moreover,'as the Staff has stated, MBMI does no+ allege a deprivation of property, ar interest that is constitutionally protected under the Fif th and Fourteenth Amendments,so apnlicable case law does not require furnishing actual notice.1! Thus published notice is sufficient in law to advise 1BMI of this proceeding. As indicated in Puget Power and Light Co., sunra, Indian tiibes are not be virtue of that status alone entitled to more consideration than other petitioners bnfn n the NRC.
MSMI has not shown good cause for its untimel.y filing.
M3MI failed to address factors (ii) through (v).
However, with regard to factor (ii), MBMI can protect its interests in not having its lands used for transmission line rights-of-way in another forum.
Section 12 of the Indian U provides that "[n]o pu~ v
, grant, lease, or Trade and Intercourse Act other conveyance of lands, or of any title or claim tnereto, from any Indian E
10 CFR 2.105.
U 44 U.S.C. 1508.
E Also, see Professor Davis' discussion of adequacy of notice in administrative law cases at Section 8.05 of his treatise.
Kenneth Culp Dois, " Administrative Law of the Seventim," Supplementing "Arainistra tive Law Tr eatise."
I s s ue:d June,1976 by The Lawyers Co-operative Publishing Co.
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E 25 U.S.C. 177.
' ' if nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution."
If as MBMI claims, its lands may not be used for transmission line rights-of-way without the consent of its governing body (Petition at 4), the interests that it seeks to protect in this proceeding cannot be harmed by the outcome of the proceeding.
This " actor, in view of the Staff, weighs against granting the petition.
With regard to factor (iii), M3MI may reasonably be expected to assist in developing a sound record on the impacts of transmission lines on its tribal lands and archaeological and cultural resources.
This factor weighs in favor of granting the petition.
Factor (iv) also weighs slightly in favor of granting the petition.
Since the only other party raising admissible con'.?ntions (Mr. Bard) has ruised none in-volving the health effects and other impacts of transmission lines, the petitioner's interest will be represented by existing parties only to the extent that health effects and other impacts of transmission lines are considered by the Staff, and by this Board, in making the cost-benefit asessment required by the National Environmental Policy Act.
Clearly, however, the focus on health effects, effects on the tribe's cultural and archaeological resources, and other impacts of transmission lines is not likely to be as sharp as it would be if that natter is the subject of a contention.
Finally, factor (v) weighs ageinst granting the petition.
Since no contention on the subject of the health effects and other impacts of transmission lines has been admitted, participation by MBMI will broaden the issues to be lititTted.
Further, the tentative schedule for the hearing process was keyed to the date of kbI
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- e of the Draf t Environmental Statemcnt (DES).S Notice of the availability is of the DES appeared in the Federal rDgister on April 23, 1979.
(44 Fed. Reg.
23951).
Contentions have been formulated.
Discovery has begun.
Obviously, there would be some delay in the proceeding if the 'EMI petition is granted.
In summary, three of the five factors weigh against granting the petition.
STANDT A The Connission's Rules of Practice,10 CFR 92.714(a)(2), require that petitioners state with particularity their interest in the proceeding and how that interest may be affected by the results of the proceeding.
Intervention as a matter of right in Comission licensing hearings is governed by Judicial concepts of standing, which require that the petitioner demonstrate an interest in the outcome of the proceeding and that the interest be at least arguaaly within the " zone of interests" protected by the statute invoked. E An organization has standing to intervene if it can show that it or its members have such an interest.11/
MSMI is a federally-recognized Indian tribe (Petition at 1).
As such, it may sue on its own behalf.
Title to tribal lands is in the tribe, not in individuals, though the land is for the use and benefit of all meobers of the tribe.12/
MBMI
~9/ ee " Order F ' lowing Special Prehearing Conference," dated March 6,1979 at 6.
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- Portland General Electric Co nany (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-614 (1976),
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- Allied General Nuclear _ Services (Barnwell Fuel Receiving and Storage Station),
ALA'-328, 3 V 420 (1976).
N
.S. v. Jim, 409 U.S. 80, rehearing denied, 409 U.S. 1118 (1972).
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alleges that the proposed transmission lines would cross its tribal lands and pose environmental and health hazards to its lands and nembers.13
- Thus, the Staff believes that MBMI has adequately demonstrated standing to p. 'ticipate as a party in this proceeding.
CONTEMIONS As a general rule, contentions to be admissible in an NRC licensing proceeding (except an antitrust proceeding) must deal with matters arising under the Atomic Energy Act or the National Environmental Policy Act.
Not only nust the contentions sought to be, litigated be listed, but also the bases for the contentions must be set forth with reasonable specificity in acccrdance with the requirements of 10 CFR 2.714(b).
MBMI alleges that the location of transmission lines associated with the facility ds proposed by the Applicants woulc pose serious environmental and health hazards to its lands and m + s.
However, it neither claims that these impacts could be cost-beneficially mitigated or avoided nar sets forth the bases for its allegations with reason @le specificity.
In fact, MBMI requests " sufficient time to obtain and review the pleadings and documents on file [in this proceeding]
and ;o amend its Petition to more specifically state its interests and concerns."
(Petition at 6).
UlClearly, the Comnission has the authority under NEPA to review offs 0 environmental inpacts of transmission lines and to order a change transmission line routes selected by an applicant.
Public Service Company of New Hamashire v. NRC, 582 F.2d 77, cert. denied, 97 S. Ct. 721 (December 11, 1978T.
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As the Supreme Court made clear in its Vermont Yankee decision:
[w]hile it is true that NEPA pines upon an agency the obligation t0 consider every significant aspect of the environmental impact of the proposed action, it is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so tFat it alerts the agency to the intervenors' position and contentions. M/
The contention proffered by MBMI falls short of this requirement because it constitutes only a general averment that transmission lines would pose serious environmental and health hazards without any reasonably specific supporting bases of the manner in which such hazards would be created.
Thus, the Staff believ 2s that MBMI has failed to state a contention and set forth its teases for that cor,tention with reasonable specificity.
CONCLUSION Although lE;I has demonstrated standing to intervene, because MBMI has not justified its untimely petition, and has not raised a contention in accordance with the requirements of 10 CFR 2.714, the Staff believes that its petition for IA/ ernont Yankg v. NRDC, 435 U.S. 519, 552 (1978).
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i leave to intervene should be denied.
However, in view of the closeness of the balancing of the five factors, the Staff would noc oppose the Coard's granting MBMI ten days in which to perfect a contention on the single issue of trans-mission line impacts on its lands and members and its archaeological and cultural 1s/
resources.
Respectfully submitted, 1%kk
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James M. Cutchin, IV Counsel for NRC Staf t Dated at Bethesda, Maryland, this 31st day of May,1979.
Ih/M3MI requested that the riRC serve its filings (Petition at ?).
The Commission has stated that it is not appropriate to provide such financial assistance to participants in fiRC licensing proceedings.
'iuclear Reaula tory Comnission (Financial Assistance to Participants in Commission Proceedings), CLI-76-23, 4 NRC 494 (1976).
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UNIfED STATES OF A" ERICA NUCLEAR REGULATORY COM:11SSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD _
In'the Matter of
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ARIZONA PUBLIC SERVICE
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Docket Nos. STN 50-592 COMPANY, e_t_.a_l.
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STN 50-593 (Palo Verde Nuclear Generating
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Station, Units 4 and 5)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANS'.-lER TO PETITION FOR LEAVE TO INTERVENE OF MORONGO BAND OF MISSION INDIAMS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk by deposit in the Nuclear Regulatory Commission internal mail system, this 31st day of May, 1979:
Robert M. Lazo, Esq., Chai rman
- Charles S. Pierson, Esq.
Atomic Safety and Licensing Board Assistant Attorney General U.S. Nuclear Regulatory Commission 200 State Capitol Washington, DC 20555 1700 West Washington Phoenix, Arizona 85007 Victor Gilinsky Co,nissioner James D. Woodburn, Chief Engineer U.S. Nuclear Regulatory Commission Pubiic Service Departnent Washington, DC 20555 P.O. Box 631 Burbank, CA 91503 Dr. Quentin J. Stober Research Associate Professor Samuel Gorlick, City Attorney Fisheries Research Institute P.O. Box 6459 University of Washington Burbank, CA 91510 400 Northeast 15th Avenue Scattle, Washington 98195 Janes L. Mulloy, Chief Electrical Engineer & Assistant Manager George Campbell, Chairman Edward C. Farrell, Chief Assistant City Maricopa County Board of Supervisors Attorney for Water & Power 111 South Third Avenue P.O. Box 111 Phoenix, Arizona 85004 Los Angeles, CA 90051 AC, 4Ji j
_1 R. E. York Gordon W. Hoyt Senior Vice President Utilities Directar El Paso Electric Company City of Anaheim P. O. Box 982 P.O. Box 3222 El Paso, Texas 79999 Anr.heim, CA 92803 David N. Barry III, Esq.
Mr. Ron U. Watkins James A. Beoletto, Esq.
Vice President Southern California Edison Company San Diego Gas & Electric Co.
P.O. Box 800 P.O. Box 1831 Rosemead, CA 91770 San Diego, CA 92112 4'
Byron L. Miller Arthur C. Gehr, Esq.
Assistant Vice President Snell & Wilmer Nevada Power Company 3100 Valley Center P.O. Box 230 Phoenix, Arizona 85073 Las Vegas, Nevada 89151 Janice E. Kerr, Esq.
Gary E. Craythorn, Engineer J. Calvin Simpson, Esq.
City of Glendale Vincent MacKenzie, Esq.
119 North Glendale Avenue California Public Utilities Glendale, CA 91206 '
Commission 5066 State Building Ronald V. Stassi San Francisco, CA 94102 Engineer City of Pasadena Kathryn Burkett Dickson, Esq.
100 North Garfield Avenue Mark J. Urban, Esq.
Pasadena, CA 91109 Counsels for the California Energy Resources Conservation and Everett C. Ross Development Commission Public 'Jtilities Director lill Howe Avenue City of Riverside Sacramento, CA 95825 3900 Main Street Riverside, CA 92501 Mr. Larry Bard P.O. Box 793 Atomic Safety and Licensing Tempe, Arizona 85281 Appeal Scard U.S. Nuclear Regulatory Connission Atomic Safety and Licensi;., Board Panel
- Washington, DC 20555 U.S. Nuclear Regulatnry Commission Washington, DC 20555 Docketing and Service Section
- U.S. Nuclear Regulatory Commission Dr. Star. ley L. Dolins Washington, DC 20555 Assistant Director Enercy Programs (0EPAD)
Tora Diamond, Esq.
Office of the Governor 1203 First City National Bank Building 1701 West Washington El Paso, Texas 79901 Executive Tower - Rn. 507 Phoenix, Aricona 85007 Ralph G. Wesson, Esq.
Assistant City Attorney P.O. Box lil e
Los Angeles, CA 90051
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David B. Roe David Mastbaum Environmental Defense Fund Environ.nental Defense Fund 2006 Dai gh t '..'ay 1657 Penr.syivania Street Berkeley, CA 94704 Denver, Colorado 80203 California Indian Legal Services Stephen V. Quesenberry Lester J. Marston George Forman 1860 So. Escondido Blvd.
P.O. Box 2457 Escondido, CA 92025 e
James M. Cutchin, IV Councel for f1RC Staff e
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