ML19241B468

Az Public Svc Et Al,Opposition to CA Public Utils Commission 790524 Reply to Applicants Response to Environ Defense Fund Petition to Intervene.Urges Rejection of Reply for Being Defective on Merits.Certificate of Svc Encl

ML19241B468
Person / Time
Site:	Palo Verde
Issue date:	06/08/1979
From:	Bischoff C, Gehr A SNELL & WILMER
To:
References
NUDOCS 7907180078
Download: ML19241B468 (12)

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NUCLEAR REGULATORY CCMMISSION c;  ; gn j g,o BEFORE THE ATOMIC SAFETY AND LICENSING BOA. '

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In the Matter of .C PCRLrC)TMOU,*Jm y

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ARIZONA PUBLIC SERVICE )

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COMPANY, et al., ) DOCKET NOS. STN 50-592

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Palo Verde Nuclear Generating ) SIN 50 -593

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Station, Units 4 & 5 )

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JOINT APPLICANTS ' RESPCNSE TO THE REPLY OF THE CALIFORNIA PUBLIC UTILITIES COMMISSION TO JOINT APPLICANTS ' RESPONSE TO PETITION FOR LEAVE TO INTERVENE OF THE ENVIRONMENTAL DEFENSE FUND Joint Applicants Arizona Public Service Company, Southern California Edison Company, El Paso Electric Company, San Diego Gas & Electric Company, Nevada Power Company, De-partment of Water and Power of the City of Los Angeles, City of Anaheim, City of Burbank, City of Glendale, City of Pasadena, and City of Riverside (the " Joint Applicants")

recently received a copy of the above-referenced Reply to the California Public Utilities Commission ("CPUC"), dated May 24, 1979. Joint Applicants submit that CPUC's Reply should be rejected on the grounds that neither Section 2.714 nor any other section of the Commission's Rules of Practice permit a reply to a party's answer to a petition for leave 049 7907180 0 7 3 h

to intervene. Section 2.706 does permit a reply to an

" answer," but the answer there referred to is one to a notice of hearing under Section 2.705.

Even though CPUC's Reply should be rejected es not being permitted under the Commission's Rules of Practice, Joint Applicants wish to comment briefly on CPUC's Reply as it may affect the interests of Joint Applicants.

I In Part I of its Reply CPUC states that Joint Applicants' Response to the Petition for Leave to Intervene of the Environmental Defense Fund ("EDF") was untimely filed. As support for its assertion, CPUC purports to quote 10 C.F.R. 5 2.714(c) pertaining to the timing of an answer to a petition for leave to intervene. (Reply at 1). There are two problems associated with CPUC's evaluation of the timing of Joint Applicants' Response. First, 7UC has quoted and applied an outdaM d regulation. Second, CPUC has failed to consider other portions of the Commission's Rules of Practice respecting the filing of documents and the computation of time.

Section 2.714(c), as amended effective May 26, 1978 (43 Fed. Reg. 17798, April 26, 1978), and January 22, 1979 (44 Fed. Reg. 4459, January 22, 1979), provides in pertinent part as follows:

519 050 "Any party to a proceeding may file an answer to a petition for leave to inter-vene within ten (10) days after service of the petition."

In addition, under Section 2.710,

"[w]henever a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other pape,r upon him and the notice or paper is served upon him by mail, five (5) days shall be added to the prescribed period."

Service upon a party by mail is complete on deposit in the United States mail, properly stamped and addressed. 10 C.F.R. 5 2.712(d)(3). And filing by mail is deemed to be complete as of the time of deposit in the mail. M. s 2.701(c).

Summarizing the above, when a party to a pro-ceeding is served by mail with a petition for leave to intervene, the party has 15 days,_ measured from the date of service, in which to file an answer. In the case of Joint Applicants' Response to the Petition for Leave to Intervene of EDF, the Petition was served on May 3, 1979, and the Response was filed on May 18, 1979, or fifteen (15) days later. Therefore, Joint Applicants ' Response was filed in a timely manner.

519 05i II In part III of its Reply, CPUC questions Joint Applicants' reference to Sierra Club v. Morton, 405 U.S. 727 (1972), as support for the argument that EDF lacks standing to intervene. CFUC specifically questions whether the basis for determining standing in a Federal court should apply to a commission proceeding, and also whether the " salient findings" of Morton are pertinent to the Palo Verde Units 4 and 5 proceeding. Not only does CPUC fail to provide any reasoning as to why the standard in Morton should not be applied in a commission proceeding, but it also fails to identify the " salient findings" of Morton, or discuss why such findings would not be pertinent. More significant, CPUC simply ignores the Commission's adoption of the judicial standing doctrine, see Portland General Electric Company (Pebble Springs Nuclear Units 1 and 2) CLI-76-27, NRCI-76/12 610 (1973), and the frequent application of Morton by the Commission and the Appeal Board, see, e.c., Edlow Inter-national Company (Application to Export Special Nuclear Material), CLI-76-6, NRCI-76/5 563 (1976); Houston Lichtinc and Power Comcany ( Allens Creek Fuclear "enerating Station, Unit 1), ALAB-535, 2 Nuc. Reg. Rep. (CCE) 130,375 (April 4, 1979); Allied-General Nuclear Services, et al.

(Barnwell Fuel Receiving and Storage Station), ALAB-328, NRCI-76/4 420 (1976).

519 052

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CPUC criticizes Joint Applicants' analysis of whether EDF possesses standing on behalf of its members.

CPUC states that "[a]ttempting to dissect the precise in-terest of each of [EDF's] members . . . wo 11d appear fruit-less, hypertechnical and unnecessary." (Reply at 2). This statement by CPUC leads Joint Applicants to conclude that CPUC is uninformed respecting the criteria used by the Ccmmission in determining organzational standing. It is not essential, nor have Joint Applicantu maintained, that the interest of each of EDF's members be identified. It is essential, however, that when an organization seeks to establish standing on behalf of its members, at least one member be identified who has an interest which may be af-fected by the outcome of the proceeding. As stated by the Appeal Board in Houston Lighting and Power Company, supra:

"It is patent from the foregoing that, in determining the Guild's standing, the Licenring Board was not merely entitled but obligated to satisfy itself that there was at least one member of the Guild which might be affected by the outcome of the. proceeding." _,

S19 053 2 Nuc. Reg. Rep. at 130,375.08.

CPUC also criticizes Joint Applicants' insistence that an identified member of an organization normally must authorize the organization to represent his interests in the proceeding. It is alleged by CPUC that "a member of the Bar would need to take whatever steps necessary with his client aefore representing or making assertions on their behalf."

(Reply at ). Eere, too, CPUC simply ignores the recent decision in Houston Lightinc and Power Company, supra, in which the Appeal Board specifically addressed the issue of whether authorization is required. In addition, CPUC ap-parently does not apprec.iate that it is an organization which is seeking to intervene and not certain individuals.

The " client" beung represented is EDF and not the identified members liv'.ag in Arizona. Where the client-organization hinges its standing upon its being the representative of a member who has the requisite affected pe2.uonal interest, it is necessary that the member authorize the organization to represent his interests. 2 Nuc. Reg. Rep at 130,375.08.

III Part IV ef CPUC's Reply is directed toward Joint Applicants' analysis of the untimeliness of the EDF Petition.

CPUC's primary as artion is that '[t]he Board has discretion to allow intervention based upon a concern discerned frem the DEIS." (Reply at 3). While a licensing board ce-ninly does have the discretionary power to permit intervention, Joint Applicants are unaware of any authority, nor has CPJC cited any, which supports the assertion that identifying a

" concern discerned from the DEIS" constitutes a basis for the licensing board's exercise of its discretiodil 9 054 CPUC also asserts its belief that EDF could assist in developing a sound record. Even if the Licensing Board makes a positive finding on EDF's ability to contribute, that in itself would be an insufficient basis on which to grant EDF's untimely Petition or to permit EDF to intervene as a matter of discretion. As stated by the Commission in Portland General Electric Comoarg, suora, factors bearing on the exercise of a licensing board's discretion are suggested by the Commission's regulations, particularly those governing a determination on late intervention, 10 C.F.R. 5 2.714(a),

and the more general factors of 10 C.F.R. 5 2.714(d) concern-ing ruling on a petition to intervene. These factors have been analyzed by Joint Applicants in detail in their Response to EDF's Petition. The unavoidable conclusion to be drawn from that analysis is that EDF's situation is not an instance where intervention should be granted as a matter of discre-tion.

IV In Part V of its Reply, CPUC takes issue with Joint Applicants' statements that CPUC's concern with al.nerna-tive energy sources and conservation measures provides a basis for concluding that EDF's interest will be represented by an existing participant. CPUC asserts that the issue S

which EDF wishes to raise may be different. em CPUC's

statement of issues . " (Reply at 4).

519 055 CPUC indicates that in order to conclude that a petitioner's interest will be represented by an existing participant, it would be necessary for the existing par-ticipant to have raised the identical issues as the peti-tioner and to be offering the identical proof as the peti-tioner. If CPUC's interpretation of 10 C.F.R. @ 2.714(a)

(1)(iv) were to be applied, it would be practically impos-sible for a licensing board to ever conclude that a peti-tiener's interest will be represented by an existing par-ticipant. It would be rare indeed for a licensing board to know at the time that it is ruling on petitions to intervene what proof will be offered by a participant or would be offered by a petitioner. For this and other reasons, sub-section 2.714(a)(1)(iv) does not require identical proof.

Nor is it necessary that the statements of issues by the existing participant and the petitioner be identical.

Factor (iv) of subsection 2.714(a)(1) weighs against a petitioner if the issues desired to be raised are similar to those raised by an existing participant such that a licensing board can conclude that the petitioner's interest will be represented.

If this Licensing Board believes it essential to know the specific issues which CPUC intends to raise prior to determining the extent to which EDF's interest will be represented by CPUC, Joint Applicants are not opposed to this Board's deferring ruling on EDF's Petition until CPUC 519 056 submits its statement of issues. The time when this state-ment is due is 60 days after issuance of the Draft Environ-mental Statement.

Even if this Board finds that EDF's interest would not be adequately represented by CPUC, there are, as specified in Joint Applicants ' Response to EDF 's Petition, at least two other participants which will represent EDF's interest.

And even if this Board finds that EDF's interest will not be adequately represented by any existing participant, the other four factors of Section 2.714(a)(1) still weigh against granting EDF's Petition.

CONCLUSION The Reply of CPUC should be rejected on the grounds that the Commission's Rules of Practice do not permit the filing of such a document.

On the merits, CPUC's Reply is defective in that CPUC makes assertions based on outdated regulationc, ignores other regulations which defeat its position, ignores several Commission and Appeal Board decisions which directly support Joint Applicants' Response to EDF's Petition, and makes unrealistic arguments respecting the interpretation of the Commission's regulations.

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RESPECTFULLY SUBMITTED this 8th day of June, 1979.

SNELL & WILMER 3-( ,.

By &b.J G d-> s!/

Arthur C. Gehr < $cy5,',//

f Charles A. Bischoff '<

3100 Valley Center Phoenix, Arizona 85073 Attorneys for Joint Applicants 519 058 U N..

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COMPANY, IT AL. ) Occket Ncs. STN 50-592 Palo Verde Nuclear Generating ) S*N 50-593 Station, Units 4 & 5 )

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I hereby certify that the foregcine. dec':nen: has been served upcn the follcwing listed persens by deposit in the Cnited States nail, p cperly addressed and with postage

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Rcbert M. La:o, Esq., Chairman Atomic Safety and Licensing Atcmic Safety and Licensin, Appeal Scard Scard Panel U. S. Nuclear Regulatory C. S. Nuclear Regulatory Cent:lis sion Washing:cn, D. C. 20555 Con = tis sica Washingten, D. C . 20555 Cc-dssicner Vic c: Gilinsky Cocketing and Serrice Section U. S. Nuclear Regulaccry C. S. Nuclear Regula: cry Cc 4ssien Cc= mission Washingten, D. C. 20555 Washingten, D. C. 20555 Vincent MacKenzie, Esq.

Or. Cuentin J. Stcher Janice E. Ker , Esq.

Research Asscciate Professcr- J. Calvin Singson, Esq.

Fisheries Msearch ~nstitute Califcrnia Public Utilities Cniversitf c. Washine cn Cc 4ssion 400 Northeas. 15th Avene.e g Seattle, Washi.gucc. 98135 5066 State Sud m a ,. r. _, ,-_. c_a a. ,

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Stephen M. Schinki, Esq.

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C. S. Nuclear Regniaccry P. O. Ecx 793 Tenper Ari ena 85231 Cc-i ssic:

Washing:cn, 2. C. 20555 Michael M. Grant, Esq.

Gecrge Ca pbell, Chairman Assistant A :crney General Mariccpa. County Ecari cf 200 Sta:e Capit:'.

Superriscrs 1700 Wes: Washing On 111 Scuth Third Avenue Phcenix, Arirena 35007 Phoenix, Ari:cna $5004 i3 1 n.

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Donald G. Gilbert Kathryn Surkett Dickson Executive Director Mark J. Urban Arizona Atomic Energy Commission Counsels for the California 2929 West Indian Schcol Road Energy Resources Conservation Phoenix, Arizona 85017 111 Ecwe Avenue Sacramento, California 95325 Tem Diamond, Esq. Alan R. Watts, Esq.

.1208 First City National Bank Rourke & Wcodruff Suilding 1055 N. Main Street El Paso, Texas 79901 Suite 1020 Santa Ana, California 92701 Ron W. Watkins Ralph G. Wesson, Esq.

Vice President Assistant City At:Orney for San Diego Gas & Electric Co. Water and Power San Diego, Calfironia 92212 P. O. Box 111 Los Angeles, California 90051 David Mastbaum Stephen V. Quesenberry David 3. Rce Lester J. Marston Enviren= ental Defense Fund George Forman 2606 Dwight Way California Indian Legal Services Serkeley, California 94704 1860 So. Escondido Boulevard P. O. Box 2457 Escondido, California 92025

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Charles A. Bischoff p/jf Dated: Nune $,lYTS c .

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