ML19241B477

Az Public Svc Et Al,Opposition to Morongo Band of Mission Indians 790511 Petition to Intervene.If Petition Is Denied, Petitioner Limited Appearance Will Not Be Opposed by Applicants.Certificate of Svc Encl

ML19241B477
Person / Time
Site:	Palo Verde
Issue date:	05/29/1979
From:	Bischoff C, Gehr A SNELL & WILMER
To:
References
NUDOCS 7907180119
Download: ML19241B477 (12)

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?"tC PUPLTC W'GM UNIT'SD STATES OF AMERICA 3 JUU 1 N > c Ci* , s y t,gy i W%M h[j NUCLEAR REGULATORY CCMMISSION Q Q

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6 i l ls.V BEFORE THE ATOMIC SAFE'.V AND LICENSING BCARD In the Matter of )

)

ARIZONA PUBLIC SERVICE ) DOCKET NOS. STN 50-592

) STN 50-593 COMPANY, et al. )

)

(Palo Verde Nuclear )

) _

Generating Station, )

)

Units 4 & 5) )

)

JOINT APPLICANTS' RESPONSE TO THE PETITION FOR LEAVE TO IN'I'ERVENE OF THE MORONGO BAND OF MISSION INDIANS Joint applicants Arincna Public Service Company, Southern California Edison Company, El Paso Electric Com-pany, San Diego Gas & Electric Company, Nevada Power Com-pany, Department 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 Appli-cants") oppose the petition to intervene (" Petition") of the Morongo Band of Mission Indians (the " Band") served by mail on May ll, 1979. Joint Applicants submit that the Petition should be denied for the reasons that the Band has not justified its late filing, has not demonstrated that it has standing, and has not set forth a valid contention.

51/ 157 7907180}[f h

Untimelv Petition In its Petition the Band lists several concerns respecting the location of the Devers to Mira Loma portion of the proposed 500 kV transmission system from the Palo Verde site to the Mira Lcma substation near Ontario, Cali-fornia. On December 8, 1978, Lne Atomic Safety and L1-censing Board designated to preside in the Palo Verde Units 4 and 5 proceeding published a supplemental notice of hear-ing in the Federal Recister (43 Fed. Reg. 57694-95) which provided that petitions for leave to intervene respecting environmental issues were to be filed by January 8, 1979.

As the concerns listed by the Band in its Petition are environmental in nature, the Petition was filed approxi-mately four months late.

With respect to untimely petitions, 10 C.F.R. 52.714(a)(1) provides in pertinent part:

Nontimely filings will not be enter-tained absent a determination by the Commission, the presiding officer or the atomic safety and licensing board desig-nated to rule on the petition and/or request, that the petition and/or re-quest should be granted based upon a balancing of the following factors in addition to those set out in paragraph (d) of this section:

(i) Good cause, if any, for failure to file on time.

(ii) The availability of other means whereby the petitioner's interest will be protected.

517 158

- es

(iii) The extent to which the peti-tiener's participation may reasonably be expected to assist in developing a sound record.

(iv) The extent to which the peti-tiener's interest will be represented by existing parties.

(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.

In its Petition the Band states several reasons for the untimely filing. (Petition at 1-3). While these "rea-sons" may be regerded as an attempt to establish good cause for failure to file on time, the simple fact is that the Band has failed to address the remaining four factors in its Petition. Nor does the Band argue that it is immune from meeting the requirements of Section 2.77.4(a)(1). In Puget Sound Power and Licht Company, et al. (Skagit Nuclear Power Project, Units 1 and 2 ), LEP-78-38, 8 N.R.C. 587 (1978), the Licensing Board basically ignored the requirements of Section 2.714(a)(1) in considering the grant of an untimely petition to intervene of three Indian tribes. The Board took the position that the tribes ' particular status and their rela-tionship with the United States Government should be the controlling factors. It added that, because of this situa-tion, the petition should be treated as though filed by the United States, the tribes' trustee. Id. at 595-97. The Board then held that "the factors recited in tha Commission's regulations for a late filed petition to intervene [should]

51/ 159 yield to the public interest which the government repre-sents." Id. at 597. The Appeal Board vacated the Licensing Board's order and remanded with directions to the Board to consider the petition in light of Section 2.714(a)(1).

Puget Sound Power & Light Comcany (Skagit Nuclear Power Project, Units 1 and 2), ALAB-523, 9 N.R.C. 58 (1979). In so doing, it noted that none of the decisions relied on by the Board supported the thesis that the delay did not have to be justified but could simply be ignored. Id. at 62. In view of the Puget Sound decision, the requirements of Sec-tion 2.714(a)(1) apply to federally recognized Indian tribes.

And since the Band has failed to address the factors listed in that regulation, there is no basis upon which this Li-censing Board can grant the Band's Petition.

While the Band's failure to address four of the five factors of Section 2.714(a)(1) is by itself a suf-ficient basis for denial of the Petition, Joint Applicants further submit that the reasons offered by the Band do not demonstrate good cause for the late filing.

The Band first alleges that it did not receive actual notice of the Palo Verde Units 4 and 5 proceeding until March 9, 1979. (Petition at 1-2). This does not constitute good cause since the Atomic Energy Act, as amend-ed, (the "Act"), does not require actual notice to indi-viduals potentially affected by the outcome of a proceeding conducted under the Act. The Act simply requires that the 51/ 160 notice of hearing be published in the Federal Recister. 42 U.S.C. 52239(a).

Furthermore, Joint Applicants submit that the Band did have notice of the plans to construct Palo Verde Units 4 and 5, and a transmission line from the Palo Verde site to the Mira Loma substation, prior to March 9, 1979. In a letter dated August 22, 1978, Burl R. McDaniel of the Southern California Edison Company advised Tom Lyons, Chairman of the Morongo Business Committee, that Joint Applicants would file transmission line route proposals with the Nilclear Regulatory Commission (the " Commission"), and that the preferred route could impact the Morongc Indian Reservation. Mr. McDaniel requested permission to proceed with a historical and ethnolo-gical study of the area from the Devers substation to the Mira Loma substation. Mr. McDaniel also stated that the information gathered would be presented to the Morongo Business Committee for comment prior to preparation of a final report. In a letter dated September 9, 1978, Mr.

Lyons responded that the Business Committee decided to reject the request.

The Band also alleges that the supplemental notice of hearing published in the Federal Recister on December 8, 1979, "did not provide constructive notice to [the Band] in that said notice was insufficient to adequately and rea-sonably apprise [the Band] of the real scope of the proposed project." (Petition at 2). The fact is that the content bl/ 161 and publication of the supplemental notice of hearing were in compliance with the Act and the Commission's regulations.

And the Band does not allege otherwise. Furthermore, the supplemental notice did give the approximate location of Palo Verde Units 4 and 5, did list all the participants in the project, including those from California, and did list addresses where relevant documents were available for review.

The third reason offered by the Band is that the United States failed to meet its duty under its trust obliga-tion and give actual notice to the Band. (Petition at 2-3).

This reason is insufficient to justify the delay as the Band has failed to demonstrate that such a duty exists or that the breach of such duty entitles the Band to enter the proceeding. Cf. Pugit Sound Power & Licht Company (Skagit Nuclear Power Project, Units 1 and 2), ALAB-523, 9 N.R.C.

58, 62-63 (1979).

The final allegation made by the Band is that the Joint Applicants failed to give actual notice to the Band and that this failure was contrary to law. (Petition at 3).

This allegation is in error for at least two reasons.

First, neither the Act nor the Commission's regulations impose a requirement on an applicant for a construction permit to seek out individuals who may be aggrieved by the outcome of a proceeding. Rather, the burden is on the person who may be aggrieved to come forward, establish his interest, and state how his interest may be affected. 10 c;,

. Jl/ ,I h 2 C.F.R. 52.714. Neither of the two cases cited by the Band would impose such a requirement on Joint Apolicants. The case of Eisen v. Carlisle & Jaccuelin, 417 U.S. 156 (1974),

specifically dealt with Rule 23 of the Federal Rules of Civil Procedure. That rule requires that, in a class action maintained under the rule, " individual notice to all members who can be identified with reasonable effort" ' hall be given. Federal Rules of Civil Procedure, Rule 23(c)(2); see Eisen v. Carlisle & Jaccuelin, 417 U.S. at 173. Rule 23 has no relevance to the construction permit proceeding for Palo Verde Units 4 and 5. Schroeder v. City of New York, 371 U.S. 208 (1962), i:1volved the adequacy of notice in a con-demnation proceeding. It is obvious that the proceeding for Palo Verde Units 4 and 5 cannot be classified as a condemna-tion proceeding. Even the Band itself alleges that "[t]he lands of [the Band] may not be utilized for such trans-mission line purposes without the consent of the governing body of [the Band]." (Petition at 4).

Second, as has already been discussed in response to the Band's first reason for the late filing, Joini Ap-plicants had in fact advised the Morongo Business Committee in August 1978 of their intent to file with the Commission proposed transmission line routes which could impact the Morongo Indian Reservation.

In sum, Joint Applicants submit that the Petition should be denied for the reasons that the Sand has failed to 5i/ l63 establish good cause for its late filing and has failed to address the other factors of sec'. ion 2.714(a)(1).

Standing Any parson who desires to become a party to a proceeding must file a petition to intervene which sets forth with particularity the interest of the petitioner, how that interest may be affected by de results of the pro-ceeding, and the specific aspects of the subject matter of the proceeding as to which the person wishes to intervene.

10 C.F.R. 52.714(a)(2). The Band states as its grounds for intervention that it is the beneficial owner of the lands of the Morongo Indian Reservation and that these lands "Ife within the proposed and alternate locations of the proposed Devers to Mira Loma corridor of the 500 Kilovolt transmission line." (Petition at 4). The preferred route from the Devers substation to the Mira Loma substation does pass through the Morongo Indian Reservation. See U.S. Nuclear Regulatory Commission, Draft Impact Statement related to construction oi,Palo Verde Nuclear Generating Station Units 4 and 5, NUREG-0522, Figure 9.4 (April, 1979). However, Joint Applicants have also proposed alternatives to the preferred route, s ee of which would bypass the Reservation.

I_d. at 9-47 to -56.

The Band also alleges that its lands may not be utilized for transmission line purposes without its consent.

(Petition at 4). Assuming the truth of this allegation, the

$blf environmental impacts of concern to the Band cannot come to paes without its consent. Accordingly, Joint Applicants conclude that the Band has failed to estaolish how its interest may be affected by the outcome of the pcoceeding, and therefore lacks standing to intervene.

Contentions, Under 10 C.F.R. 52.714(b), in order for a person to be admitted as a party, it is first necessary that he specify at least one contention which is admissible as an issue in controversy, and that the basis of such contention be stated with reasonable particularity. Simple allegations 3hich are non-specific and unaccomoanied by factual bases are inadmissible as contentions. Offshore Power Systems (Floating Nuclear Power Plants ), LBP-77-48, 6 N.R.C. 249, 250 (1977); Tennessee Valley Authority (Browns Ferry Nuclear Plants, Units 1 and 2), LBP-76-10, NRCI-76/3 209, 212 (1976).

The Band's Petition lists several " concerns" respecting the proposed transmission system. The concerns identified are " hazards created by electrical and magnetic fields. . .  ; impact . . . on archaeological and cultural resources. . .  ; impact . . . on the [ Band's] present and long-range plans. . .  ; visual impact . .  ; [and] physical hazards . . . (e.g., fire hazards and hazards to aviation) . "

(Petition at 4-5). None of these concerns satisfies the contention requirements of Section 2.714(h) . The concerns are in each instance general allegations. No factual c2cis b!! !65 is provided for any of them. For instance, the Petition does not provide any basis for its statements that fire and other hazards would be created. Nor does , the Petition describe with specificity what archaeological and cultural resources would be affected, or what long-range plans would be interfered with. In brief, the Band has failed to state a valid contention as required by Section 2.714(b).

Conclusion In summary, the Band has failed to meet the require-ments of Section 2.714(a)(1) respecting untimely filings; it has failed to establish its standinc to intervene; and it has failed to state a valid contention.

Based on the foregoing, Joint Applicants submit that the petition for leave to intervene of the Morongo Band of Mission Indians should be denied.

The Band also requests that, should its petition to intervene be denied, it be permitted to make a limited appearance pursuant to 10 C.F.R. 52.715. Joint Applicants are not opposed to the Band's participation in this manner.

RESPECTFULLY SUBMITTED this 29th day of May, 1979.

SNELL & WILMER By [

Arthur C. Gehr

[ /

/l Charles A. Bischoff 3100 Valley Bank Center Phoenix, Arizona 85073 Attorneys for Joint Applicants 5I/ 166 p...

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Donald G. Gilbert Kathryn Burkett Dickson Executive Director Mark J. Urban Arizona Atomic Energy Commission Counsels for the California 2929 West Indian School Road Energy Fesources Conservation Phoenix, Arizona 85017 111 Howe Avenue Sacramento, California 95825 Tom Diamond, Esq. Alan R. Watts, Esq.

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

San Diego Gas & Electric Co. Assistant City Attorney for San Diego, California 92212 Water and Power P. O. Box 111 Los Angeles, California 90051 b ( $b W Dated: flay 29, /979 e

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