ML19270F260
| ML19270F260 | |
| Person / Time | |
|---|---|
| Site: | Skagit |
| Issue date: | 12/26/1978 |
| From: | Busch R, Means D EVERGREEN LEGAL SERVICES |
| To: | |
| References | |
| NUDOCS 7902060072 | |
| Download: ML19270F260 (31) | |
Text
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Ut11TED STATES OF A!! ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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Docket Nos. 50-522 PUGET SOU:iD POWER AND LIGHT
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50-523 COMPANY, et al.
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(Skagit Nuclear Power Project
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December 26, 1978 Units 1 and 2)
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INTERVENOR TRIBES' BRIEF IN OPPOSITION TO APPLICANTS' APPEAL AND IN SUPPORT OF LICENSING BOARD DECISION AND ORDER GRANTING INTERVENTION RUSSELL W.
BUSCH Attorney for Sauk-Suiattle and Upper Skagit Tribes 520 Smith Tower Seattle, Tiashington 98104 DONALD S. LEANS Attorney for Swinomish Tribal Community P.O.
Box 277 La Conner, Washington 98257 790206007),
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BACKGROUMD The Skagit River system is unique.
The river is the largest tributary in the Puget Sound complex.
In a region where sport and commercial fishing for anadromous species are essential to the local economy, and uhere dwindling stocks of salmon and steel-
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head have become sufficiently controversial to merit litigation by Indian tribes and the United States Justice Department against the State of Washington (presently on certiorari to the United States Supreme Court), a Presidential Task Force. and several
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proposals for fisheries legislation in Congress, the Skagit system contributes very substantially to fishing industries in the United States and in Canada.
In some species, including stocks which have not adapted to hatchery enhancement, the Skagit system pro-duces approximately one-third of the wild stocks in the Puget Sound fishery.
The steelhead run in the Sauk River, an upstream tributary, is one of the last major wild runs in that species in the state.
The Skagit is often described as the only river in Washington to still contain viable wild stocks of all the anadromous salmonid species native to the region:
Chinook, Sockeye, Pink, Coho, Chum and Steelhead, although the Sockeye run has been lowered to marginal numbers by Puget Sound Power and Light Company's two dams on the Baker River.
In 1968 significant portions of the Skagit system were listed by Congress under the " study river" category in the Uild and Scenic Rivers Act.
This year Congress included various seg-nents of the Skagit and its tributaries within the Wild and Scenic.
system; the mainstem Skagit from Bacon Creek downstream to Sedro Woolley is listed as " recreational."
The Skagit System is the
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only river system in Washington State receiving designation under.
that Act.
The Intervenors are the three federally-recognized Indian tribes inhabiting the Skagit region.
They represent the oldest
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9 occupancy and use of the river system.
Since time immemorial In-dian families have relied upon the returning anadromous fish runs j
for their livelihood.
The year-round migration cycles, the rich j
harvests, were the mainstay of their culture.
Surprisingly--after more than a century of change, competition for depleted stocks and l
repression of Indian fishine activities--the taking of salmon re-I mains central to their culture and to their economic survival.
Trib-j bal households are dependent upon fish runs returning to the Skagit -
River with an intensity unparalleled by any other user group.
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In the late 1960's and early 1970's, when the Skagit was being considere,i as a study river under the Wild and Scenic Rivers Act and the Justice Department was preparing to sue the State of Washington I
and assert tresty fishing rights, Appellants decided upon the Skagit River Valley as the site for the two nuclear plants which are the f
subj ect of these dockets.
The site is situated on the lower river at a location which must be passed by most migrating salmon and steel-head using the river system.
It is in the center of the aboriginal area of the Upaer Skagit Tribe and is near to the traditional home-lands of the Swinomish Tribal Community and the Sauk-Suiattle Tribe'.
The three Tribes, after considerable study and deliberation, have decided to seek intervention in these dockets, to act on their own behalf, as their only alternative to ensure protection of their treaty fishinery and their future generations.
The commitment of time and resources to these proceedings was not made lightly.
The Tribes are engaged in intense litigation concerning their treaty fishing rights, management of the resource as required by the federal court, other federal administrative proceedings dealing with the con-struction and modification of hydropower dams, and the myriad govern-mental problems attendant upon tribal self-determination.
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The Petition was filed just prior to hearings by the Licensing
,j Board.
At those hearings the Board Chairman at first expressed skep-
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ticism concerning the Tribes' position.
During the course of the hearings, which dealt with the matter of Ranney collectors, 2
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the Board. raised same of the questions which were contained in the Tribes' Brief in Support of Intervention.
The issue of intervention has been the subject of an exchange of briefs which total, exclusive of supporting documents and supporting briefs by other intervenors, almost 200 pages.
The Board deliberated five months, requesting additional briefing in late September, before reaching its decision.
The Applicants filed this appeal on December 11.
Because of the brief interval allowed for a response, an interval which includes weekends and holidays, and in order to sharpen the issues and avoid redundancy, the Intervenors must rely to some degree upon their Brief in Support of Intervention, their Reply to the Answers of Staff and Applicant, and their response to the Board's September 26 request.
For that reason, those briefs are incorporated herein by reference and provide the detail which is not possible in this Brief.
Respondents' briefing here is broken into tuo parts:
argu-ment in support of Licensing Board's decision, and argument in response to Appellants.
Briefing in F se two categories will often overlap; to avoid redundancy, argument in support is limited to Appellate considerations.
ARGU!'ENT IN SUPPORT OF LICENSING BOARD'S DECISION A.
Sunmary of Tribes' Contentions On page 2 of their Reply Brief the Petitioners summarized their position:
Petitioners are separate and federally-protected entities with cultural, economic, physical and legal characteristics relevant to this proceeding which make them quite distinct from the general public in the affected area.
They comprise a significant portion of the population in the vicinity of the nuclesr facility and have perhaps the greatest stake in the outcome of these proceedings.
They are federally-recognized tribal governments seeking status as parties because they have concluded,.
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after conservative reflection, that the impacts of this proposal upon them have not been fully evaluated, that there exists a risk to their trr'ty fisheries and their health and welfare, and thac che only way to insure adequate protection of their interests is to participate as a party in these proceedings.
f The Brief in Support of Intervention and the Reply to
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Answers of Staff and Applicants go to considerable length in 5
specifying and documenting tribal concerns regarding fisheries and genetics.
To summarize, the Tribes asserted that their i
review of the record showed that certain substantial risks to i
the anadromous fishery had not received the scrutiny justified t
by the extreme dependence upon the anadromous runs by Indian i-people.
The Indians also raised their concern about possible genetic impact upon their populations as unique and genetically i
distinct receptor communities with health and marital patterns differing from the general population.
The documentation nee-essary to support late intervention necessitated a fairly pain-staking review of the record and consultation with various experts.
Intervenors felt that they would have to make a very serious and credible showing that their interests had not and were not being adequately protected.
In their answers, Applicants and Staff each made a consider-able number of arguments opposing Indian intervention.
Most of Applicants' arguments are repeated here.
Staff originally opposed intervention largely on the basis of timeliness, although Staff did note that the possible discovery of new geologic informa-tion might mitigate the lateness of the Petition.
Subsequently, in its response to the Board's September request, Staff softened
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its position considerably.
It stated that if certain showings were made, it would recommend intervention on the basis of conten-tions made by the Tribes regarding fisheries, socio-economic and genetic impacts.
B.
Scope of Review As ue have pointed out, the decision on intervention was made by the Licensing Board after the receipt of considerable briefing, and after several months of deliberation.
The Board was aided in its decision by its familiarity with the proceedings and the state of the record to date, since the Tribes had asserted that the record was deficient regarding fisheries, socio-economic and genetic impacts directly affecting their interests.
Knowledge of the proceedings and the record also assisted in evaluating factors supporting intervention.
The Tribes expressed their belief that they could make a significant contribution to the record as the advocates best able to protect their unique interests and as the only fisheries management entities whose sole responsi-bility was the protection of the Shagit River fisheries resc /ce.
They contended that their participation would not unduly broaden the issue or delay the proceedings, that they could not be adequately represented by existing parties and that they had no other means available to protect their interests.
And they con-tended that their untimeliness was justified by a number of considerations, including their preoccupation with complex liti-gation of their treaty rights and misinformation concerning the potential impacts of Appellants' facility.
Staff ultimately found these contentions persuasive, only requesting that minor factual shouing be made.
The Board balanced the considerations advanced in the various briefs and granted intervention in a fully-reasoned 28-page opinion.
Now Applicants appeal, portraying the Board's decision as an inexplicable aberation from the Commission's regulations.
Appellants also characterize the Indian Tribes as brazenly seeking to relitigate matters that have already been thoroughly aired and resolved.
Ironically, Appellants then ask this Appeals Board to enter the Licensing Board's province and decide the question of intervention here and now.
Respondents suggest that it is._
I Appellants who are guilty of seeking relitigation in making such a request.
The Commission, and the Appeals Board, have repeatedly stated the rule governing review with respect to the granting or denial of unticely intervention:
the Licensing Board has broad discretion and will only be reversed upon a showing that discretion has been abused.
Nuclear Fuel Services, Inc., (West Valley Processing Plant), CLI-75-4, 1 NRC 273 (1975) is the lead-ing case on the application of 10 CFR S 2.714(a):
The relevant language of Section 2.714(a) is not a model of clarity.
Purely secantic analysis supports to some extent either of the divergent results reached by the Board najority and the dissent.
Focusing on the policies underlying the rule, however, and secan-tics aside, we do not construe Section 2.714(a) as automatically barring incuiry into the purposes which may be served, or hindered, by accepting an untimely petition where,as here, the petitioner has not shown good cause for his tardiness.
Rather, the purpose of Section 2.714(a) is to establish appropriate tests for disposition of untinely petitions in which the reasons for the tardiness as well as the four listed factors should be considered, thus giving the Licensing Boards broad discretion in the circumstances or incividual cases.
(emphasis supplied) 1 NRC at 274-5.
In that case the other four factors outueighed the lack of excuse for tardiness.
In this case the Licensing Board found that there was sufficient excuse for untimeliness.
The Board engaged in the sort of balancing test used by the Commission in West Vallev.
Last Spring, the Commission clarified some of the " semantic" ambiguity of 5 2.714(a).
The Commission codified the West Vallev case, thus indicating that it was good law and that good cause for failure to file on time "is one factor to be balanced along with others in determining whether a late filing will be admitted."
43 Fed. Reg. 17799 (April 26, 1978).
In West Vallev, in the 1978 rule and in the comments of the Commission, a balancing test is set out which is to be applied by the Board.
Although Appellants don't agree, the Intervenor Tribes submit that it is beyond argument that the Licensing Board properly applied the b.alancing test in exercising its discretion here.
In Florida Pouer and Light Corpany (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-420, 6 NRC 8 (1977) the Appeals Board applied the West Valley test:
There we vere told that the intervention regulation (Section 2.714(a) of the Commission's Rules of Prac-tice) was purposely drafted with the idea of "giving the Licensing Boards broad discretion in the circum-stances of individual cases."
1 NRC at 275.
Con-sequently, we are free to reverse a decision granting tardy petition to intervene only where it can fairly a
be said that the Board's action was abusive of the discretion conferred by Section 2. 714(a).
In that case the petitioners cited misinformation as one reason for late intervention.
The Appeals Board "very much doubted that any petitioner 31 months late could mount a case for intervention, much less a convincing one."
(6 NRC at 14).
But after reviewing the excuse offered for tardiness, the Board was convinced and did affirm the grant of intervention.
St. Lucie ultimately came before the Commission.
There, in spite of that long delay and the congressional policy of especially expediting antitrust hearings, the Commission affirmed intervention.
Its reasoning was based largely upon confidence in the Licensing Board's ability to shape relief so as to avoid unnecessary prej udice.
Public Service Company of Indiana (Marble Hill Station, Units 1 and 2) ALAB-339, 4 NRC 20, 24 (1977) also applies the b'est Vallev rule:
The Commission has told us, however, that Section 2. 714(a) was written to give "the Licensing Boards broad discre-tion in the circumstances of individual cases."...Our review of the Board's ruling is, therefore, limited to determinin this case.g whether that discretion has been abused in See also Nuclear Engineering Company, Inc. (Sheffield, Illinois Low Level Radicactive Waste Disposal Site) ALAB-473 (May 3, 1978) and South Carolina Electric and Gas Comoany (Virgil C.
Summer Nuclear Station, Unit 1) LBP-73-6, 7 URC 209 (1978).
It is apparent from a reading of West Valley and St. Lucie that-the Commission favors the sort of flexibility which results in a sound recoro, not an unduly technical and legalistic attempt to l'imit the scope of 5 2.714.
The commission's position on standing is instructive:
the latitude allowed Licensing Boards in granting intervention is broader than that allowed federal district courts.
In permitting adjudicatory boards to exercise discre-tion in ruling on questions of participation, we recognize that judicial standing criteria for inter-vention as a matter of right may, in a particular case, exclude petitioners who would have a valuable contribution to our decision-making process.
Admin-istrative procedures are sufficiently flexible to accommodate such petitioners.
Portland General Electric Company, et. al. (Pebble Springs Nuclear Plant, Units 1 and 2) CLI-76-27, 4 URC 610, 616 (1976).
A reading of the Licensing Board's Decision Order here leaves little room for disagreement:
the Board did exercise its particu-lar expertise and familiarity with the record and the proceedings in applying S 2.714.in this case.
Appellants argue with some ingenuity that this was not done; but Respondents submit that what Appellants really seek is to have the test applied again in a forum which they hope will be more amenable to their arguments.
ARGUP.ENT IN RESPOUSE TO APPELLANTS
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ii Appellants characterize these proceedings as having been nearly completed when three irresponsible Indian Tribes bestirred themselves to seek intervention; that is sirply not the case.
These proceedings, largely due to Appellants' own actions, are far from complete and reasons for tardiness, as well as the reasons supporting intervention, are far more serious, and more credible, _
than Appellants' perspective indicates.
Respondents will, as long as it remains practical, answer Appellants' brief in the order that Appellants' arguments are set out.
A.
Annellants' Factual Assertions
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In their statement of " Background" the Appellants make assertions with which Respondents take issue.
References are to pages in their appeals brief.
On page 4, Appellants state, "both units are urgent.ly needed on line as soon as possible."
Respondents had not made contentions concerning "need for power," but they find themselves faced with this assertion in response to their intervention.
Accordingly, they made some inquiries concerning this issue.
The "need for power" question has not been resolved; the proceedings have not gone to initial decision; there is a motion pending to reopen the hearings on "need for power."
In June, the State of Oregon appeared before~the Licensing Board here and presented evidence to the effect that Oregon, at least, proj ected growth in power demands which was less than had been previously assumed.
In addi-tion, Washington Utilities and Transportation Commission rate hearings are being held on Puget Sound Power and Light Company's request for a sizable rate increase; in those hearings, testimony of Dr. Robert Halvorson undermines Puget's assumption concerning the drastic "need for power."
Finally, Respondents question an isolated assertion of power demands in the light of the ongoing or proposed construction of several other nuclear facilities in Uashington state, the existence of a sizable nuclear facility at Hanford, and the considerable energy contribution already made by Uashington hydropower facilities.
Closer to home, there are five dans already in place in the Skagit system, two of them belonging to Puget Sound Power and Light company and responsible for a considerable loss in the Tribes' Sockeye fishery.
An addi-tional dam, and the raising of another dam, are proposed by Seattle City Light on the mainstem Skagit, with the possible loss of up to 20 percent of the river's spauning habitat.
Respondents will not accept the statenent, "both units are urgently needed" requiring them to sacrifice their treaty-protected property as rights in the fishery, and perhaps their children's health, to the, rush for energy.
Also at page 4, Appellants state that SCANP has alleged
" concerns similar to those nou urged by Petitioners."
That is simply not so.
SCANP made no attenpt to assert Indian treaty rights or to air questions concerning socio-economic or health impacts on Indians.
There are no contentions, other than those by Respondents, dealing with Indian issues.
It should be noted that SCANP does not represent fisheries user groups. and does have access to considerable first-hand knowledge concerning not the Skagit River system's fisheries.
On page 5, Appellants cuote a Mailgram from the Suinomish Tribal Community, one of the Intervenors, indicating that it wished to testify at a hearing.
That Tribe did not represent the other two Intervenor Tribes, and in any event never claimed that it was totally unaware of Applicants' proposal.
All the Intervenors have claimed that they did not have sufficient infor-mation to make a valuable contribution to the proceedings earlier, that they didn't know how seriously their interests would be affected, and that they had little in the way of time and resources available to make a significant contribution here.
In fact, they were led to believe that the impact upon their interests would be minimal.
Considering the myriad legal and' social problems that the Swinomish Tribal Community had to deal with in 1975, it is not surprising that the Tribe did not divert its resources to State, County and federal proceedings concerning two nuclear plants which the Fish and Wildlife Service, in February, 1975, described as having "minical adverse impact."
(Reply Brief at 32-3)
At page 5, Appellants depict the proceedings as, after "a total of 6 5 days of evidentiary hearings," having only a _
"few remaining matters" to be resolved.
Those "few remaining matters" included determination of uhether the plants were situated in the immediate vicinity of active earthquake faults (a question raised by the United States Geological Survey), an evaluation of the impact and operation of redesigned Ranony Uell configurations, an evaluation of the environmental cad fisheries impacts of containment vessel barging procedures only described in detail in March of 1978, the Raden-222 question, and a number of other matters which hopefully include the deternina-tion of lethal and sublethal exposures at the diffuser site.
None of these questions fit the implication of insignificance contained in the phrase, "a few remaining matters."
At page 6 Appellants discuss County zoning proceedings.
Although the content of those proceedings, and their conclusions, are not legally relevant here, Respondents are not aware, and Appellants do not say, that those proceedings in any way addressed socio-economic or fisheries impacts upon the local Indian popula-tion.
The concerns voiced here by Petitioners were not voiced there, nor would it be proper for the Licensing Board to accept the existence of local hearings in lieu of a federal investigation, especially where Indian interests are concerned.
Appellants further assert, at 6-7, that an agreement was entered with the County to protect the Skagit River fisheries.
The County has no fisheries staff and considerably less fisharies expertise than the Tribes, the State or the federal government.
That is demon-strated by the eagerness with which it sanctioned the construction of a fish hatchery at the nuclear plant which poses considerable problems concerning inter-specific interaction and mixed-stock management pressures which lead Tribal, State and federal biologists to seriously question the advisability of artificial enhancement in the Skagit River.
Uhile the Tribes are grateful that regional problems are handled at the local level, it is somewhat vexing to disenfranchised minorities to be told that their problems were fully discussed.-
by proccedings in which their Tribal governments were not significantly involved.
Continuing their reliance on State proceedings, Applicants, page 7, refer to State UPDES certification.
at They say, "the aquatic impacts of construction runoff in coo.ing water discharge from the project were considered and determined in the NPDES proceedings."
The concerns voiced by Respondents here were not raised in the ";-DES proceedings.
The record before the State
_ agency, EFSEC (formerly TPPSEC) contains alarming voids concern-ing fish populations, behavior and biology at the diffuser site.
The draft environmental impact statement prepared by TPPSEC perely quotes the draft environmental statement prepared by the NRC staff.
Further, the State water quality standards followed by EFSEC were adopted without sufficient reference to lethal and sublethal effects of temperatures and effluents upon salmonids, over the objection of various biologists.
EFSEC does not, in fact, have directly available to it a fisheries biology staff, although it is the only State agency permitted to issue power plant discharge permits.
Washington state salmon do not have a promising future if discharge permitting procedures do not contain a thorough review of somatic effects on juvenile and adult salmon cad Respondents will not accept the bare allegation that aquatic impacts were thoroughly discussed at the State level.
Respondents note that they, and the United States Justice Department, are co-plaintiffs in Phase II of United States v. Washington, asserting that the State has mismanaged the fisheries resource.
Finally, Appellants characterine Petitioners as wishing to relitigate matters which have already been resolved.
This res judicata argutent is inappropriate.
The proceedings here have not been closed, the Board has before it matters relating to Petitioners' contentions which it has not resolved, and Respondents have stated repeatedly that they do not wish to relitigate matters which have been fully litigated.
They only wish an opportunity to participate and discuss risks which they feel are at present _
serious, unquantified, and imperfectly understood.
Appellants assert that Respondents are seeking "relitigation" of aquatic impacts and that this is forbidden by Neu England Coa-licion v. Uculcar Regulatory Commission, 582 F.2d S7 (1st Cir.,
1978).
Even assuming that the NPDES proceedings were dispositive--
which Respondents do not concede-- the cited case does not support Appellants' arguments.
There, the Court said, 582 F.2d at There is no dispute that NEPA requires the UP.C to fac tor any anticipated marine pollution into its cost-benefit analysis of the Snabrook application.
In this case it is a state agency, which the tribe and the Justice Departe at are both suing for mismanaEement of fisheries resources, a federal agency, which Appellants claim bars the Indian tribes.
not These arguments by Appellants, while perhaps interesting, are not germane to the intervention question.
Although Respondents feel compelled to reply to them here, they suggest that they might be replied to more fully and with considerably more detail at an ap-propriate time.
B.
Appellants' Legal Arguments 1.
Alleged Disregard for 10 CFR s 2.714 Licensing Boards have broad discretion in granting, or deny-ing, untirely intervention petitions.
Absent an abuse of that oroad discretion, they will not be reversed on appeal.
West Valley, supra; St. Lucie, supra.
Although they do not specifically argue abuse of discretion, with full citation of authority, Appellants characterized the decision below as a wholesale departure from E2.714 depiciting the Licensing Board as " expressly shunning the Cormission's regulations" paying brief lip service to the "five factors" before indulging in impermissible considerations favoring the intervenor tribes.
This is a rather broad mischaracterization of the Board's opinion, and the appeal is based on this mischarac-terization.
While the Licensing Board hardly needs apologists, Appellants' perception of events necessitates a response..
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First, Appellants find it " incredible" that the Licensing Board failed to cite s2.714 even once.
Rather than comh the en-tire Decision and Order for a numerical ruference, Respondents will simply accept the assertion as being true and decur.
The complaint seems acre e'itorial than substantial.
Appellants cite no authority, nor do they even allege, that the numbers 2.714 must. appear at least once.
That section requires a balancing of factors; nowhere does it require a reference to its own numerical designation.
Second, Ap'pellants simply state that the Licensing Board did comply with its duty to balance "five identified factors."
not Uest Valley, _s u p r a, is dispositive:
a strong showinb on some fac-tors may mitigate a lesser showing on another, such as tardiness.
Appellants seem to confuse " balancing" with " cumulating;" they would allow intervention only if each factor were proven beyond all dispute.
That is not the holding in West Valley.
Third, here, all five factors uere proved in Intervenors' favor in.a manner sufficient to convince the Licensing Board--
but not Appellants.
They acknowledge that the Licensing Board made findir.gs as to the factors, but call these " ultimate findings,"
and assert that "there is little and often no reasoning" to sup-port them.
But a hearings board, like a trial court, is not re-quired to narrate all the individual details and processes which inhere in its findings, nor, when ruling on a motion, reiterate all of the successful parties' assertions.
Respondents submit that the Board's Decision has sufficiently and does in fact support its
" ultimate" findings.
Respondents were under the impression that findings of fact vere required to be " ultimate," not a discourse on anything that night be relevant.
In Metropolitan Edison Company (3 Mile Island Nuclear Station, Unit 2), ALAB 384, 5 NRC 612, n.6 (1977), a case cited by Appellants, the Appeals Board said:
We do not mean to suggest that, where it has found that 14
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a good excuse has been tendered for the late filing, the Licensing Board must invariably discuss the 82.714 factors in painstaking detail.
It will frequently--indeed usually--be sufficient to note in the Order (if such be the case) that the factors do not weigh so heavily against the Petitioner that, natuithstanding the existence of a satisfactory reason for tardiness, intervention should ibe denied.
It is difficult to frame a response to this "ultieate find-ings" argument.
Appellants cite no authority requiring a detailed
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dicciosure of reasons why " broad discretion" is exercised a cer-tain way.
Of course the Decision is not quite so devoid of "rea-sons" as Appellants described it.
Each of the five factors is discussed and a finding is made:
Cood cause for failure to file on time is discussed at length at pages 3-4 of the Decision. It is also discussed at considerable length in the various briefs submitted by the Tribes to the Board.
The significance of the timeliness in this particular case (bal-ancing) is discussed at 5, Notes 2 and 3; 10-11; 15-16 ; and 21-22.
At 25 the Board accepts the arguments made in the Tribes' three briefs:
(1)
That the Petitioners have made a substantial showing for good cause for failure to file their petition seeking intervention within the time period speci-fied in the Notice of Hearing for this case; At 26 the Licensing Board makes its finding as to "other meata,"
uith reasons:
(2)
That other means do not exist uhereby the petitioners' interests will be protected, since these petitioners seek to protect treaty rights uhich designate these petitioners, alone, and no other party can assert those interests nor fully participate at hearings and appeal if necessary to represent those treaty rights; Additional support for this finding is found at 4-5, and at 24.
The Board finds, at 26, that Respondents would assist in de-veloping a sound ecord:
(3)
The petition with the supporting brief and the supple-mentary material filed which designate the areas of in-terest, the proposed witnesses who could be called, all combine to establish that the petitioners can be reason-ably expected to assist in developing a sound record in 15
vieu of their commitment to submit uitnesses uith ex-pertise in the areas of interest designated, so that the record in those respects need not be limited to a substantial degree to only a cross-examination of Ap-plicants' and the staff witnesses uho may not reflect the same experience background as petitioners' pro-posed uitnesses.
t Respondents fee? that they made a particularly strong showing of their ability to assist in developing a more credible record as to their unique interests.
At 26, the Licensing Board finds:
(4)
That the petitioners' interests cannot be adequately represented by existing parties to the proceeding; At 5, 7, and 24 of the Decision, the Licensing Board discusses this issue.
No party had even purported to represent the Tribes' interests, although they were the oldest and most dependent user group, and the oldest community, in the immediate area.
At 27, the Licensing Board finds :
(5)
That the participation by the petitioners will not broaden the issues nor delay the proceeding, since their participation will be limited to (A) the changes made by the applicant and submitted after the time of filing the original application and the supporting data, and to (B) the matters yet to be considered in the hear-ing which are also the areas of interest enumerated by the petitioners.
Suppt et for this is found at 16, 23, and 24, inter alia.
The Com-mission's holding in St. Lucie, suora, is particularly relevant here:
The Commission had confidence that the Licensing Board there would be able to " shape relief" and avoid undue prejudice.
Appellants complain that the Licensing Board reduced the is-sues to the question of whether there would be a delay.
The Board discussed the ongoing state of the proceedings at ccnsiderable length, as did the Staff.
The other factors--good cause for fail-ure to file on time, other means to protect their interests, repre-sentation by other parties, and contribution to a sound record--
reflect on the petitioners, rather than the other parties.
While it is in the interest of the Board to prevent tardiness, to unify proceedings, to ensure that there are not an unmanageable number 16
of parties with the same contentions, and to ensure that the record is complete and reliable; the Board is justified in finding that a more significant factor is the degree of delay that will occur because of intervention.
Here the Board concluced, at 21, that "this proceeding reflects a char.ging scene
." Appellants are not conplaining that there was no " balancing", they are complain-ing concarning the weight of different factors put into the bal-The Board's exercise of discretion is supported by sound ance.
j udicial reasoning.
2.
Reliance on " Erroneous" Factors Perhaps it is good advocacy to " construe" a decision appealed from in the light most favorable to the advocate.
But Respondents believe thac Appellants' " construction" here--that the Licensing Board abdicated its responsibility under S2.714--is a bit extreme.
a.
" Preferential Status" Appellants claim that the Licensing Board " bypassed" S2.714 and granted intervention on the basis of an absolute right to in-tervene.
In the Ansvers of Staff and Applicants, Petitioners were depicted as asserting such a right; Petitioners replied that they were intervening under @2.714.
They pointed out that they had valuable federally-protected treaty rights, that they had mistakenly relied upon the trustee United States to safeguard their health and their fisheries, and that they had reluctantly concluded after con-ciderable research that it was necessary for them to intervene and act on their own behalf.
Petitioners have a great deal at stake in these proceedings, more than any other party.
The property rights the United States holds in trust for them have great cul-tural, social, and economic value.
The survival and health of their members is essential to their continued existence.
Like the State and private users in United States v. Washington, Appellants have not " fully accepted the principle that treaty rights can be claimed by a politically impotent minority."
Puget Sound Gillnetters' Association v. United States Court for the Western District of Eashington, 573 F.2d 1123, 112S (9th Cir. 1978).
Respondents wish to preface the following arguments by stating
- t. hat they disagree with the argument that the Licensing Board 17
" bypassed" @2.714.
And the fact that they possess federally-protected property rights is relevant to that portion of 52.714 quoted by Appellants: to reasons for tardiness (litigation of United Staten v.
Uashington, reliance on the trustee, etc.), to representation by other parties, and to contribution to the record (factual and legal).
The Licensing Board had reason to, and did, grant intervention under $2.714(a).
But, Appellants don't quote all of @2.714.
The segment quoted at 10-11 of their brief referred to paragraph (d):
that the petition and or request should be granted based on a balancing of the following factors in addition to thos: set out in paras,raph(d) of this section
.(em-phasis supplied)."
Pcragraph(d) is as follows:
The Commission, the presiding officer or the atomic safety and licensing board designated to rule on petitions intervene and/or requests for hearing shall, in ruling to on a petition for leave to intervene, consider the fol-louing factors, among other things-(1) The nature of petitioner's right under the Act to be made a party to the proceeding.
(2) The nature and extent of the petitioner's prop-erty, financial, and other interest in the proceeding.
(3) The possible effect of any order uhich may be entered in the proceeding on the petitioner's interests.
(Emphasis supplied)
It uas proper and eminently reasonable for Respondents to point out their stake in these proceedings, and the Board was not lim-ited to the five factors in reaching its Decision.
Moting that Respondents had asserted treaty property rights held in trust by the United States, and that the United States had a duty te protect treaty Indians, the Licensing Board found federal Indian law supportive of its Decision.
It was not in error.
For a number of reasons, including conflicts of interest be-tween Indian rights and other federal concerns, neglect and 18
inadvertence, and simply the discretionary choice not to commit federal legal representatives every time an Indian right is in issue, Congress has codified its policy of Indian self-determination uith respect to federal civil procedures in 28 U.S.C. S1362.
The legislative history of that section indicates Congressional intent to allow Indians to act on their own behalf when the United States does not, choose to do so.
Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976), Salt River Pica-Maricopa Indian Com-munity v. Arizona Sand and Rock Conaanv, 353 F.Supp.1093 (D.Ariz.
1972). Respondents' predecessors-in-interest ceded vast amounts of land, reserving the all-important right to take fish and receiving the United States' promise of protection and assistance in return.
Equitably, they stand in the shoes of their trustee when they as-sert their beneficial rights.
The relationship of the Respondents the United States is briefed in considerable detail at pages to 20-30 of their Reply Brief and at pages 5-3 of their Response to the Board's September request.
Another case supporting the Licensing Board in this aspect is Harragansett Tribe of Indians v. the Southern Rhode Island Develop-nent Coro., et al., 418 F.
Supp. 798, 804-5(D.R.I., 1976).
There the Court held, citing a long line of Supreme Court and other cases, that Indians nay assert the sovereign interests of the United States in a case involving tribal property.
But here Appellants argue that even if the Tribes stand in the position of the United States, the other five factors in s2.714(a) still militate against late intervention.
They cite authority to the effect that the United States, when an acclicant, is on an equal footing uith other applicants.
This authority, precised upon the Congressional purpose of preventing unfair competition, would hard-ly seem relevant here.
Here the Tribes are not applicants nor are they representative of applicants conpeting with Appellants in the business world.
They are beneficial owners of treaty-guaranteed property rights, and they are the beneficiaries of treaty protection.
Were the United States to assert the interests they are asserting, it rould be 19
acting as a trustee under the highest fiduciary duty.
Seminole Nation v.
United States, 316 U.S. 286(1942)
Appellants cite no authority for their assertion that the United States, as an inter-venor in the public interest on behalf of treaty rights, would be on an equal footing with all other intervenors.
The Licensing Board cited considerable authority at page 20 of its Decision to the effect that the United States would not be bound by laches.
Appellants seek to distinguish the cases cited because "the present case is a federal administrative proceeding not involving any challenge to the immunity or the supremacy of the United States."
Respondents differ on this point.
Indians are entitled to assert sovereign interests.
Narragansett, suora.
A defense of laches asserted against the United States, or against tribes acting in its capacity, is a " challenge to the immunity or the supremacy of.the United States."
In any event, the Licensing Board certainly had sufficient discretion under the circumstances of this case to find that the United States, or the Tribes, would be acting in the public interest in asserting the protection of Indian people and treaty rights.
Federal agencies--in this case it would be the Department of the Interior--do carry considerably more weight in asserting the public interest than do other groups.
- bee, e.g.,
Udall v. Federal Power Commission, 387 U.S.423(1968).
Surely the Licensing Board was entitled to apply all of 2.714, not merely paragraph (a), in arriving at its Decision.
The entire section, including (d), would seem to allow the Licensing Board to consider the public interest and the unique status of the United States.
Continuing with their theory that Respondents were exempted from URC regulations, Appellants go on to cite case law to the ef-fect that "a general statute in terms applying to all persons in-cludes Indians and their property interests."
This same argument was made in their Answer, citing Federal Power Commission v. Tusca-rora Indian Nation, 362 U.S. 99 (1960)
In their Reply, 21-23, the Tribes distinguished Tuscarora inasmuch as it didn't involve 20
treaty rights.
To the extent that Appellants are arguing that the Tribes' property rights can be foreclosed in these proceedings, that argument is relevant.
To the extent that Appellants are mere-ly arguing that the Tribes must comply with S2.714, in its entirety, it is difficult to meet since the Tribes agree that 2.714 controls.
The' Licensing Board applied the portion of that regulation dealing with late intervention.
Then, in support of its Decision, it con-sidered other factors especially relevant to @2.714(d).
There is sufficient latitude in the section to allow intervention.
See West Vallev, supra.
Appellants also argue that " Indians are subject to time bars in the same manner as other litigants."
There is no time bar here, rather there is a regulation drafted to assist licensing boards in exercising broad discretion.
More discretion is allowed than would perhaps be appropriate in federal proceedings.
Pebble Springs, cupra.
b.
Appellate Review Appellants argue that the Court 's consideration of the Tribes '
options in federal appellate court was improper and irrelevant.
But one of the major issues before the Licensing Board was whether SCARP could adequately represent the Indian interests.
Here SCAMP found to be doing so, and were SCANP to fail to appeal an initial Decision, the Indian interests would no longer be protected.
Re-gardless of whether or not the Tribes are alloued into these pro-ceedings, their rights are before the agency now.
Reliance on other parties to protect those rights, at all stages including ap-peal, would be misplaced.
Were intervention to be denied, the Tribes would have to sit by helplessly while a matter directly concerning themselves and their property was being decided.
They would not be able to parti-cipate as adversaries, submit findings and conclusions, take excep-tions if necessary to the initial Decision, or to appeal that De-cision within the agency.
Their only forum would be. appeal of the denial of intervention in federal court.
If successful, they would move for reopening and seek to accomplish what the Licensing Board's 21
Decision makes possible now.
It is oifficult to predict the workings of such a review process.
See 42 U.S.C. @ 2139, 5 U.S.C.
5 704; Pepsico, Inc.
v.
Federal Trade Commission, 472 F. 2d 179 (2nd Cir. 1972), Thermal Ecology Must Be Preserved v. Atomic Energy Connission, 433 P.
2d 526 (D.C. Cir. 1970), contra: Interstate Broa'dcastinr, Company v.
United States, 286 F. 2d 539 (D.C.Cire.1960),
and Public Service Commission of the State of New York v.
Federal Power Commission, 284 F. 2d 200 (D.C.Cir. 1960).
Because of the legal issues involved in excluding full and fair consideration of federally-protected property rights, the likelihood exists that appellate review would be extensive.
The Tribes would be forced to forgo remedies provided by this Commission, since attempco to exhaust them here would be cut off.
If they were not allowed to appeal until other appeals in this proceeding were taken, the delay would be costly, would deprive then of access to agency expertise, would force them to seek reopening of the record with additional delays and burdens irposed on all parties, would interfere with their economic and social planning and the planning of state and federal agencies dealing with re-sources in the area, would interrupt fisheries enhancenent and nan-agenent prograns, and would posture the Tribes as outsiders at-tempting to describe the proceedings to a federal court.
Were the Tribes ultimately successful in reopening this pro-cceding and in having their interests protected, their awkward sit-uation would have a " chilling" effect on their ability to protect their rights.
The factual contentions made by the Tribes would more appro-priately be argued before a 1icensing board than before a federal It would seem to expedite matters if the fact questions court.
could be argued airst at the agency level.
c.
Trust Resoonsibility Appellants consider the Licensing Board's description of the trust responsibility as overly broad and unsupported by authority.
Trust responsibility was briefed very thoroughly in the Tribes' 22
Reply Brief, at 20-30, but further discussion appears necessary.
At issue is whether or not the Tribes have the right to federal protection of their treaty fishing rights from destruction or di-minishment by the activities of Appellants. Their arguments, al-though they are sonewhat lengthy, boil down to the assertion that although treaty fishing tribes may have a right to go to the river and place their nets in the water, they are helpless to prevent a third party from interfering with the fish runs upon uhich they depend.
Such a narrow, technical interpretation does not conform with federal law.
Absent specific Congressional authorization, a federal agency may not cause the diminishment of an anadrocous fish run subject to a treaty fishing right.
Confederated Tribes of the Unatilla Indian Reservation v.
Alexander, 440 F. Supp. 53 (D.Or. 1977)
The treaty fishing right is in the nature of a
" usufruct", the right to go to a transient resource, capture some of it, and convert it to personal possession.
It is similar to a water right.
An Indian tribe holding a treaty-protected reserved water right, like a tribe hold' g a treaty fishing right, has the right to unimpeded flows and quantities of water.
Winters v. United States, 207 U.S.
564 (1908), Arizona v.
California, 373 U.S. 546 (1952)
The cases cited bracket a long line of United States federal cases dealing with Indian water rights.
The first case, court Winters, uas based upon United States v.
Winans, 198 U.S. 371 (1905),
reserved treaty rights case dealing not with water, but with fish.
a In both cases, and in this case, the treaty tribes have the right to have the resource maintained unimpaired.
In the water rights cases the resource is the strean, the water flouing in the stream, and the characteristics of that water such as velocity, quantity, purity, and so forth.
In the fishing rights case the resource is the river and the biological inhabitants of that river, and in-cludes those aspects of habitat necessary to maintain anadromous fish runs.
It defies all logic to argue that unlettered Indians attempting to negotiate a treaty in the nid-1800's would have in-tended to reserve a right of access to an empty river.
23
i p
.Not only do the Tribes have the right to have the fisheries b
naintained undiminished, they have the right to expect that the United States, as a part of its treaty obligation and trust re-sponsibility, will make sure that the fisheries are protected.
'i..
United States v.
Washington, 384 F. Supp. 312 (U.D. Wash. 1974),
- ~
520 F. 2d 676 (9th Cir. 1975), cert. den., 423 U.S. 1086 (1976)-,
u m certiorari granted'in a related case, Supreme Court Docket Nos.78-119,'78-139 U.S.
(October 16, 1973), Seminole Nation v.
I e-United States, supra. (Additional cases, and a fairly complete f
exposition of federal trust responsibility,are contained in the ten pages of Reply Brief referred to previously.)
9.
Appellants' argument is misplaced because it is based upon a narrow understanding of the treaty rights as guaranteeing only Si an easement to specific places on a river, with nothing more.
UU One of the reasons that int'ervention is justified, even at this U"
!r2 late date, is that there are aspects of Applicants' proposal which pose unquantified but serious risks to the anadromous fish-
}{
ery of the Skagit River.
The right to have those fisheries nain-tained unimpaired is held in trust by the United States and im-poses a high fiduciary duty on its agencies.
A recent district court case, Eric, et al.,
- v. Alaska State Housing Authority, et al.,
[
Civil Number A76-276, Federal District Court for the District of E
Alaska (November 16, 1978) is instructive at 9-10.
5, The trust doctrine is not limited to situations in which the government is managing propert-owned by an
.1-Indian tribe as defendants contend.
The Supreme Court in Morton v.
Ruiz, 415 U.S. 199, 236 (1974) applied the
~
trust doctrine so as to require stricter administrative x
standards in the management of an "off-reservation gratu-l-
ity."
This case similarly involves an "off-reservation L
gratuity" and the trust doctrine applies to the manage-(~
ment of the program.
The defendants have also contended that whatever b
trust duties exist are limited by the terms of the stat-
't..
.While a trust obligation must be based on treaty or P
ute.
statute, Joint Tribal Council of Passamacuoddy Tribe v.
- t Morton, 528 F.2d 370 (1st Cir. 1973), that obligation is
[
not limited by the statute.
Manchester Band of Pomo In-lL dians, Inc.,
v.
United States, 363 F.
Supp. 1236 (h.D. Cal.
ff 1973). The trust obligation is instead limited by common R
4 24 ic j..
$c-p:
--*~
law trust principles.
United States v.
Mason, 412 U.S.
391, 398 (1973), Seminole Hation v.
United States, 316 U.S.
286, 296-97 (1942).
The Tribes rely, and had a right to rely, on their federal trustee to preserve their treaty fishery.
Unen they learned that<their reliance was somewhat misplaced, and began to research the record in this case, they discovered that Indians and the Indian fishery were hardly mentioned, they identified specific risks to themselves and the fishery, they decided to act on their own behalf and they intervened.
Their intervention was considerably less untimely than the practically nonexistent atteapts of the trustee United States to ensure that their in-terests are fully identified and protected.
d.
Prejudice to the Parties The Licensing Board asks a very reasonable, very practical question:
"Who would be hurt or disadvantaged by a grant of the petition?"
Appellants complain that this inquiry does violence to @2.714.
Upon reflection, Respondents cannot agree.
Some con-siderations of 2.714, such as the tardiness, representation by existing parties, other means to protect interests, and contri-bution to a sound record, might be decided either uay without particular prejudice to the existing parties.
But a Licensing Board uhich found those four factors easily dealt with. would have a more dif ficult question on the issue of delay.
All the Licensing Board did here was review the state of the proceedings (with which it was thoroughly familiar) and make a determination whether undue prejudice would result under the circumstances if the Tribes were allowed to intervene.
Again, Appellants are com-plaining not that the balancing process wasn't used, but that the weight was heaviest on the wrong side.
As the Board observes, neither Applicants' nor Staff's Answers really claimed any prejud-ice resulting from intervention.
Respondents here cannot recall that Appellants have ever made any showing that undue prejudice and delay will result if intervention is granted.
In light of this, it is curious that they oppose intervention so vigorously.
25
in a footnote in their Answer:
that the formalities governing the Petition to Intervene are those in effect on December 20, 1974.
This argument has never gotten out of the footnote, nor has the language in Monticello upon uhich it is based.
A foot-note, a brief case in which intervention was agreed, is not a holding.
In that case the notice was published three days before a rule change and what Appellants contend here was not in issue.
Presumably the " rule" was footnoted because fairness required that the petitioners not have to change rules midway in prepar-ation of their petition.
No such consideration is required here, the Intervenors relied upon the rule changes published and dis-tributed last spring, and "grandfathering" the petition back to 1974 would have only nuisance value.
Litigants are entitled to benefit from changes made by federal agencies which are designed to increase public participation.
Respondents submit that Appellants, who seek to impose this argument, should do equity.
If Petitioners are bound by the rules prior to last spring, then Appellants should also be so bound; in which case, their appeal is untimely.
CONCLUSION The Licensing Board's Decision is in full compliance with 10 CFR 2.714.
With considerable benefit from its familiarity with the record and the proceedings, the Board exercised its broad discretion in achieving a balance between all of the fac-tors specified in that section.
The three Intervenor Tribes are uniquely dependent upon the region, and the resources, surrounding Appellants' plant site.
- ore than any other group, they have a direct and final stake in the reliability of the record and the outcome of the proceedings.
They do not have an anti-nuclear bias and are here simply because they wish to ensure that their property rights, and their social and physical welfare, are fully addressed and completely protected.
Their interests had been ignored in the proceedings until the time of their Petition.
This is unacceptable, since they are federally-27
protected entities with federally-protected property rights; since they are socially, economically, and genetically unique; and since they stand to lose the most from any error or imprecision in hear-ing in the permitting and licensing process.
, Petitioners stand ready to supply additional briefing to this Appeals Board as requested.
But Petitioners respectfully submit, on the basis of briefs already submitted to date, that the Appeal should be dismissed and that the Decision of the Licensing Board affirmed.
J //k d
a
->c.
r/-
RUSSELL W.
BUSCH Attorney for Sauk-Suiattle and Upper Skagit Tribes 520 Smith Tower Seattle, Washington 98104 l;
if. h&
$W IL' Ab ~ 5 D021ALD S.
t4EANS Attorney for Swinomish Tribal Community P-O. Box 277 La Conner, Washington 98257 28
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0291ISSION BEFORE'THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
-m :...
1.-
In the Matter of
)
J ', T PUGET SOUND POWER & LIGHT
)
Docket Nos. 50-522
. C.
i.
COMPANY, et al.,
)
50-523
,. '..:f-i d
)
..r.. < ; i y
. f ~.':
(Skagit Nuclear Power Proj ect
)
December 26, 1978
~ _ '
Units 1 and 2)
)
., { ' -
)
~j..
,s c
>'c-
~
CERTIFICATE OF SERVICE I hereby certify that the following:
INTERVENOR TRIBES' BRIEF IN OPPOSITION TO APPLICANTS' APPEAL AND IN SUPPORT OF LICENSING BOARD DECISION AND ORDER GRANTING INTERVENTION in the above-capuioned proceeding have been served upon the persono shown by depositing copies thereof in the United States mail, first class, on December 15, 1978.
p RUSSELL W.
ECSCH Attorney for Sauk-Suiattle and
- 3..'
Upper Skagit Tribes
~
+-;
520 Smith' Tower e
Seattle, Washington 98104 j'
H l'
l m.
?
Valentine B.
Deale, Chairman Nicholas D.
Lewis, Chairman Atomic Safety and Licensing Board Energy Facility Site Evaluation i
1001 Connecticut Avenue, N.W.
Council 1
Washington, D.C.
20036 820 East Fif th Avenue l
Olympia, WA 98504 Dr. Frank F. Hooper, Member Atcmic Safety and Licensing Board Robert C.
Schofield, Director School of Natural Resources Skagit County Planning Department University of Michigan 120 West Kincaid Street Ann Arbor, MI 48104 Mount Vernon, WA 98273 Gustave A.
Linenberger, Member Richard M. Sandvik, Esq.
-Atomic Safety and Licensing Board Assistant Attorney General U.S.
Nuclear Regulatory Commission Department of Justice Washington, D. C.
20555 500 Pacific Building 520 S.W. Yamhill Alan S.
Rosenthal, Chairman Portland, OR 97204 Atomic Safety and' Licensing Appeal Board Robert Lowenstein, Esq.
U.S.
Nuclear Regulatory Commission Lowenstein, Newman, Reis & Axelrad Washington, D.
C.
20555 1025 Connecticut Avenue, N.W.
Washington, D.
C.
20036 Dr. John H. Buck, Member Atomic Safety and Licensing Warren Hastings, Esq.
Appeal Board Associate Corporate Counsel U.S.
Nuclear Regulatory Commission Portland General Electric Company Washington, D.C.
20555 121 S.W.
Salmon Street Portland, OR 97204 Michael C. Farrar, Member Atomic Safety and Licensing CFSP and FOB s
Appeal Board E.
Stachon & L.
Marbet U.S.
Nuclear Regulatory Commission 19142 S.
Bakers Ferry Road Washington, D.C.
20555 Boring, OR 97009 Docketing and Service Section Canadian Consulate General Office of the Secretary Peter A.
van Brakel
~~
U.S.
Nuclear Regulatory Commissien Vice-Consul Washington, D.
C.
20555 412 Plaza 600 (original and 20 copies) 6th and Stewart Street Seattle, WA 93101 Richard L.
Black, Esq.
Cour. sel for NRC Staf f Donald S. Means U.S. Nuclear Regulatory Commission Bo:t 277 Office of the Executive Legal Le Conner, WA 98257 Director Washington, D.C.
20555 Richara D.
Bach, Esq.
Rives, Bonyhadi, Drummond & Smith Roger M.
Leed, Esq.
1400 Public Service Building 1411 Fourth Ave. Bldg. #610 920 S.W.
6th Av?nue
- Seattle, WA 98101 Portland, OR 97204 F. Theodore Thomsen Counsel for Puget Sound Power &
Light Company 1900 Washington Building Seattle, Washington 98101
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