ML19253B266

Supplemental Memorandum,Submitted by Intervenors Indian Tribes in Response to Aslab 790709 Order.Describes Erroneous Into Re Genetic & Somatic Effects & socio-economic Impacts

ML19253B266
Person / Time
Site:	Skagit
Issue date:	07/30/1979
From:	Busch R, Means D EVERGREEN LEGAL SERVICES, MEANS, DONALD S.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 7910100541
Download: ML19253B266 (11)

Text

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• BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD -

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In the Matter of )

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PU2T SOUND POWER & LIGHT ) DOCKET NOS. STN 50-522 COMPANY, et al., ) 50-523

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(Skagit Nuclear Power Proj ect,) July 30, 1979 Units 1 and 2) )

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PETITIONER TRIBES' SUPPLE} ENTAL MEMORANDUM IN RESPONSE TO ORDER OF JULY 9, 1979

SUMMARY

These Tribes petitioned to intervene in June of 1978, saying that they were federally recognized governments whose menbers had perhaps the most to lose, should these proceedings be shown to be deficient in evaluating environmental impacts on them. Staff and applicants opposed intervention. The Tribes filed a reply brief in September, 1978, and a response to a request from the Licensing Board chairman in October. In late November Staff gave guarded support to intervention on genetic issues. (They have since supported intervention on the issue of genetic and somatic impacts.) On November 24, 1978, the Licensing Board granted intervention.

Applicants appealed that decision and in January of 1979 this Board reversed and remanded on one issue. The Tribes asked the Commission for review at that point, but considera-tion of their request was deferred pending the outcome on 1124 047 E91010o 79/

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e remand, and any subsequent proceedings before this Board.

During the interim on remand, the Tribes participated in the issue-defining process, filing a list of issues and filing contentions. Not until April 24, 1979, did the new chairman of the Licensing Board reverse the Board's earlier decision and deny intervention. Yet, no appealable order was issued until the beginning of June.

The Tribes appealed in timely fashion on June 14. This Board filed its decision on that appeal on July 9, just prior to the most recent session of evidentiary hearings. In the July 9 Memorandum and Order, at 16, this Board holds What the tribes wust additionally establish is that, whether because of inadequate investigation on the part of the federal agency or for some other reason, they were furnished erroneous information on matters of basic fact and that it was reliance upon that information which prompted their inaction prior to June, 1978.

The Tribes must take exception to the application, by this Board, of what appear to be increasingly more difficult tests. This Board appears to be taking the reasons given for lateness, which clearly have the cumulative effect of excusing cardiness piecemeal. The Tribes also feel constrained to point out that had the initial grant of intervention been sustained, they would have been able to participate, without undue burden on the other parties, in the creation of a sound record on many of the issues which are among their contentions.

It is ironic that the tribal governments had sought a voice in these proceedings for over a year, making extreme 1124 048

efforts to overcome their lateness and articulate their concerns, while Skagit County, which asked for status as a party more than four years out of time, has just been casually allowed in. While the Tribes support intervention by the County government, they cannot help but note the inequity involved.

They are local governments seeking to protect their property and the welfare of their members, interests which are the subject of federal trust duties. They were first granted, and then denied. intervention as governments. Their exclusion, and the imposition of increasingly difficult standards for intervention, on its face seems discriminatory.

This brief is in response to the July 9 Memorandum and Order. It is done to insure any required exhaustion of administrative remedies (although it begins to appear that it is the remedies which will exhaust the Petitioners). The July 9 Memorandum not withstanding, the additional answers sought by this Board are already in the rather extensive pleadings filed by the tribal governments, and in the record.

Some of the more glaring examples are highlighted below.

By filing this Memorandum the Tribes do not in any way acquiesce in the propriety, reasoning and conclusions of the July 9 Memorandum and Order. Nor do they concede any weakness in previous submittals to this Board or to the Licensing Board.

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RESPONSE

GENETIC AND SOMATIC EFFECTS "Because of inadequate investigation..."

The Tribes contend that genetic and somatic risks to the receptor Indian population from " normal" and " accidental" releases have not been explored, that the risks are real and significant. They have cited, among other things, risks of mild mutations, the fact that they may constitute a genotype which is more susceptible to health effects from low-level ionizing radiation (and whatever other releases occur), and their unique health profiles (extreme infant morbidity and mortality being noteworthy).

Staff has supported intervention on these genetic and somatic effects. There is no evidence of any investigation by Applicants or by Staff sufficient to define and evaluate risks of mild mutations, somatic effects, etc. Indian receptors were simply ignored, although many of them use the area and resources near the plant more extensively than other raceptors.

"They were furnished erroneous information on matters of basic tact..."

An Indian tribe with limited resources which is involved in extensive litigation to obtain the use of its treaty rights should be excused for relying on disclosures in environmental 1124 050

impact statements that are misleading and, it turns out,

'possibly erroneous. Some examples:

Final Environmental Statement (FES) at 5-15:

Effluents from plant operation will then be an extremely ninor contributor to the radiation dose that persons living in the area normally receive from background radiation.

, FES at 7-2:

It is concluded from the results of the realistic analysis that the environmental risks due to postulated radiological acci-dents are exceedingly small and need not be considered further.

FES at 10-2:

The staff does not believe that any adverse radiological effects will occur since the radioactive effluents from the plant will be less than proposed Appendix I design objectives.

Without an evaluation of the genetic and somatic suscepti-bility of Indian receptors, " extremely minor contribut r" is judgmental and unsupported. This error is die losed only by rather sophisticated analysis, and is something the Tribes only became aware of in the spring of 1978. It is compounded by the discovery, after receiving the Environmental Report and the Preliminary Safety Analysis Report in the winter of 1978-9, that Indians who fish near the plant site in relatively large numbers do not appear to have been included in the Low Population Zone " transient popuiations," although non-Indian sport fishermen are centioned.

The statement at 7-2 is " infected" by its reliance on 1124 051

WASH-1400 discussions of probabilities, and therefore erroneous. ~" Exceedingly small" is based, at least in part, on the RSS. With respect to Indians, it seems that it was pre =ature and unfounded, as was the reassuring statement at 10-2 that no adverse rad.iological effects would occur.

"That it was reliance upon that information which orompted their own action..."

This has been thoroughly briefed. The Tribes relied on Staff disclosures in deciding whether to commit limited resources to these proceedings. During the period when inter-vention would have been timely the Tribes did not 1. ave the attorneys or other experts necessary to engage in other than a frivolous intervention which, it appeared from the environ-mental statements, was not necessary. As the Tribes have already explained, they became increasingly concerned about risks to their newly-won treaty fishery. Their impression that the proceedings were well advanced and that environmental impacts had been exhaustively explored rapidly changed to a realization that the arsessment of environmental impacts had been superficial and sporadic, and that it had completely ignored the Indian people near the plant site.

SOCIO-ECONOMIC IMPACTS "Because of inadecuate investigation..."

The Tribes contended that risks in this category, with 1124 052

respect to Indian communities, had not been explored. Not being narties, they find it difficult to provide the sort of proof this Board requests as to why the impacts were not explored, but the fact that they were not is sufficiently clear.

Staff supplemental testimony concerning alternative sites, filed prior to the ongoing July hearings but apparently gener-ated after the Indian petition to intervene, finds other si.es preferable with respect to community impacts largely because of socio-economic impacts on the Indian com= unities. Still, Staff witness Winters, in cross-examination on July 26, stated that his cost benefit analysis did not include possible econ-omic impacts unique to Indians relying on the treaty fisheries in the area.

"Thev were furnished erroneous information on matters of basic fact..."

The FES leaves the impression that socio-economic impacts hardly deserve more than passing mention: risks to or reduc-tion of Indian resources and populations are not even mentioned in the paragraph on community impacts at 5-23; nor are relevant socio-economic impacts mentioned at all at 10-1, during the discussion of unavoidable effects.

The FES at 4-13 provides a summary with respect to socio-economic impacts during construction:

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The staff concluded that the applicant has properly identified the potential social and economic impacts of plant construction , that these impacts will be small, and that the applicant has taken adequate measurer in collaboration with

.the local government authorities to mitigate them.

This statement is clearly erroneous with respect to the Tribes, as there was no identification of impacts upon them or their members, nor were any mitigation measures indicated.

"That it was reliance" upon that information which promoted their own action..

Again, this was already briefed. The Tribes relied on the Environnental Statement in not intervening sooner. These Indian Tribes do not habitually make themselves expert in socio-economic impacts. As they have already explained, it was only after they began to be concerned about the risks to the fishery resource that they became aware of possible inpacts in other areas.

FISHERIES IMPACTS There does not seem to be any need to repeat arguments already found in the earlier tribal briefs, especially the Initial Brief and the Reply Brief. The Tribes contend that the FE3 and its supplerent were misleading and lef t the impression that there would be no fisheries impacts. They also contend that the letter from Mr. Heckman, attached to 1124 054

their Reply Bd.ef, misled them. To document again, as petitioners, all the points where fisheries risks were glossed over would be unduly burdensome.

The Tribes have been seeking the right to express their concerns as parties, with opportunities for cross-examination, discovery, offering testimony, etc. This Board simply disagrees with the Tribes on the question of whether there will be sub-stantive fisheries impacts. For instance, Mr. Heckman's letter and Staff's optimism concerning fisheries impacts are mislead-ing only if erroneous. The Tribes, who have more at stake and considerable fisheries expertise available, feel there =ay be error and that risks are not adequately dealt with. This Appeal Board, which is much more remote from the proceedings and the risks, does not agree.

But the assessment of some factors imposing a risk on the fisheries is not complete even now. During hearings this July, testimony concerning Ranney collector failures associated with insnfficient hydrologic data and with hydraulic forces during flooding has been the subject of recent testimony sug-gesting that Ranney collector specific yield has been computed with more optimism than precision and that stream bank failure during flooding may result in serious damage to Ranney collectors.

If, for whatever reason, the Ranney collectors do not work after plant construction, a surface diversion with severe fishery impacts may become a necessity in preference to decommissioning the plants.

_9_

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As the Tribes contended from the beginning, PRV trans-portation testimony had not been taken. It still seems somewhat inadequate and the Tribes would, were they afforded an opportunity, provide engineering testimony based on actual field measurements.

CONr 1SION In their initial brief and in their reply brief the Tribes set out a number of factors which had the cumulative effect of excusing late intervention. One (.ement in their decision act to intervene was reliance on environmental statements, and upon the complacency of the Departmsat of Interior. That this reli-ance, which was largely induced by NRC Staff disclosures, con-tinued for a period of time is unfortunate but not unreasonable.

Intervenors are not required to act as surrogate lead agencies, "second-guessing" environmental statements.

Within a reasonable time after obecining access to their treaty fishery, the Tribes realized that this reliance was misplaced ano that for all the 10,000-odd pages of transcript, the shelves of environmental reports and safety analyses, the environmental statements, etc., there had been only a cursory evaluation of fisheries i= pacts and no evaluation of what are now seen as serious impacts upon the Indian communities.

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DATED this 7# day of M 7 , 1979.

Respectfully submitted, .

,s d &

RUSSELL W. BUSCH Attorney for the Upper Skagit and Sauk-Suiattle Tribes EVERGREEN LEGAL SERVICES Native American Project 520 Smith Tower 506 Second Avenue Seattle, WA 98104 (206) 464-5888 YMb . , }{ i&hs DONALD S. MEANS v

Attorney for the Swinomish Tribal Community P.O. Box 817 La Conner, WA 98257 (206) 464-3184 1124 057