ML19274G165

Brief Submitted by Forelaws on Board & Coalition for Safe Power in Support of Natwe American Tribes 780613 Petition for Late Intervention.Aslb Acted Arbitrarily & Prejudiced Rights of Petitioners.Certificate of Svc Encl

ML19274G165
Person / Time
Site:	Skagit
Issue date:	06/27/1979
From:	Stachon E FORELAWS ON BOARD
To:
References
NUDOCS 7908300309
Download: ML19274G165 (6)

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Forelaws on Board

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FORELAWS ON BOARD 19142 S Bakers Ferry Rd. ........,......,,,,,,...s..c,,,c.a Boring, Oregon 97009 2,2-; '. " ,- .7 """ - '" * ' -'~'-"-

Ph. 637-3549 UNITED STATES OF AMERICA NUCLEAR REGULATORY C0fGIISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL EOARD In the Matter of )

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Puget Sound Power & Light ) DOCKET NOS. 50-522 G -N Company, e t al . >

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(Skagit Nuclear Power

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June 27, 1979 6 cWO Project, Units 1 and 2) ) _

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SRIEF OF INTERVENOR FOS /CFSF III SUPPORT OF (J> s ' - -: , y,g!rp 3q PETIONER TR7.EES APPEAL The three pe:itioning Untive American Tribes (Swinomish Tribal Connunity, Upper Skagit Indian Tribe, and Sauk-Suiattle Indian Tribe) first petitioned for late intervention in these dockets on June 13, 1978. The licensing Scard, on November 24, 1978, issued a Decision and Order Granting Inter vention. That Decision was appealed by Applic. ants, reaulting ir the Appeal Board's vacating the November 24 Order and remanding che issue to the licensing Board ( Appeal Board Memorandum and Order, Jan. 12, 1979, and Jan. 29, 1979 Decision). The licensing Board, acquiring a new chairman since l's Hovember 24 Decision,,

issued its Ordet' Not To Entertain Montimely Petition to Intervene on June 1, 1979.

FOB agrees with Petitioners that their appeal addresses the June 1 Order in light of the previous Appeal Soard Decisions and in no way affects their seeking Cor:=ission review of those Decisions.

A REVERENCE FOR ALL LIFE -

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THE FOUR LAWS OF ECOLOGY e

GUIDELINES OF CREATIVE ENVlltONMENTALISM e 032 32o FOlt ELAWS ()N 130 AllD 7908300 M h

2 The issue here is whether the Board abused its discretion in denying intervention on remand.

FOB supports all points raised in the Tribes' Appeal of June 14 and feels that it can only add to them in a general way.

The relevant question before this Board is whether or not, under the provisions of 10 CFR 2.714, this non-timely petition to intervene should be granted. 10 CFR 2.714(a)(1) states:

... Mon-timely filings will not be entertained absent a determination by the Commission, the presiding officer or the atomic safety and lic-ensing board designated to rule on the petition and/or request, that the petition and/or request should be granted based upon a balancing of the following factors in addition to those set out in paragraph (d) of this section:

i (1) Good cause, if any, for failure to file on time.

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

(iii) The entent to uhich the petitioner's parti-cipation may reasonably be expected to assist in -

developing a cound record.

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

(v) The extent to which the petitioner's partici-pation will broaden the issues or delay the proceeding..."

It is obvious when reading the Board's June 1 Order'that there was absolutely no attempt on the Board's part to make a balanced judgement based on the five factors. F0D agrees with petitioners that the Board engaged itself in an unsupported list of conclusory statements. Like petitioners, FOB is alarmed at the adversary nature of the language used by Chairman Deale.

In this respect, FOC feels it necessary to comment on the phrase "energised the Indians" as used in Chairman Deale's Order at p. 5.

There is no place for such inflammato'ry remarks in a licensinc coard decision. Chairman Deale's statement is an embarassment to the MRC and an effort should be made by the Commission to restrain the Chair-man from further outbursts of this nature.

2032 371

3 The Chairman does concede that petitioners have shown necessary interest required of a petition to intervene. June 1 Order at p. 4 It has been pointed out by staff that these pro-ceedings are the only remaining forum in which petitioners' interests can b e protected. URC staff Nov. 21, 1978, Response to September 26 Board Request. The Chairman acknowledges that petitioners have interests not represented by exiting parties. Order of June 1 at p. 16.

The question relating to petitioners' ability to assist in developing a sound record is dismissed by Chairman Deale despite the staff's position to the contrary. See Staff Response to Soard Request at p. 8-10. FOB challenges the justification for the Chair-man's characterisation of petitioners' potential for assisting in developing a sound record as being too general. This issue has been before the Chairman since January-12, 1979. He has had access to al.1 documents filed in connection with this issue. Certainly, if the Chairman had problems with lack of specificity, he had ample oppor-

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tunity to voice his concerns and request further submittals of peti-tions. That the Chairman chose not to do so supports petitioners' claim that the Chairman acted not only arbitrarily and capricicusly, but also in an adversary manner.

FOB also has problems with the Chairman's evaluation of factor five, the extent to which petitioners' participaticn would broaden the issues or delay the proceeding. Here the Chairman's lack of snecificity is nearly criminal. It goes without saying that partici-pation by petitioners would delay the proceedings to some extent. The question is to what extent will they delay the proceedings and is this delay justified. FCS contends that a greater harm would be committed in ignoring a justified and legitimate concern than in addressing that concern regardicss of its potential for delay. (This potential may be minimal; it has yet to be quantified.)

F0D would like to make one point about the factor relating to reason for not filing cn time. It should be pointed out that this is only one factor to be considered with others. See In the Matter of Iuclear Fuel Services, Inc., (1 URC 273).

2032 ;7'

a FOB contends that good cauce has been shown for the late filing.

Yet, even for the sake of argument, if it were found that good cause had not been shown, the other factors far outweigh the issue of timeliness. Much has been made of the fact that this petition was filed over three years after the deadline date for filing for intervention in this proceeding. In context with this it should be pointed out that it will have been over one year before a final decision by these Boards on this matter will have been made. It was even necessary for petitioners to file a motion to e::pedite the issuance of the Chairman's Order. While it is not addressed in the Commission's regulations, FOB feels that it would be beneficial if the Chairman were to show good cause for delaying an appealable decision.

In sumnation, F0D feels that the Chairman acted arbitrarily, capriciously, and in a manner that seriously prejudiced the rights of petitioners. The Chairman's Order of June 1, 1979, should be reversed. Yet, it sould be clear that if this Order is reversed, it would not seriously benefit petitioners' rights if they were '

forced to adhere to the present evidentiary hearing schedule agreed to be the parties in their April 24, 1979, conference. Any delay brought by petitioners' participation has been compoinded by their dilemma of not knowing whether or not they are carties to this proceeding. Petitioners should not suffer from URC inaction. In short, petitioners should be granted the opportunity to provide meaningful intervention.

Re spec tf ully ,

b 'ih Eric Stachon Forelaws On Board 2032 S7?

UNITED STATES OF AMERICA NUCLEAR REGULATORY COIOiISSION BEFORE THE ATCMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

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

)

(Skagit Nuclear Power Project, )

Units 1 and 2) )

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CERTIFICATE OF SERVICE I hereby certify that the follcwing:

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DRIEF OF IMTERVEMOR F0D/CFSP II: SUPPORT OF/f ,np

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PETIOUER TRIBES APPEAL

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in the above-captioned proceeding have been served upo,n the persons shown on the attached list by depositing copies thereof in the United States mail on June 27, 1979 3MB with proper postage affixed for first class rail.

DATED: June 27, 1979

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Eric Stachon Forelaus On Board 2032 :>n

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Val *entine B. Deale, Chairman Nicholas D. Lewis, Chairman Atomic Safety and Licensing Scard Energy Facility Site Evaluation 1001 Connecticut Avenue, N.W. Council Washington, D.C. 20036 820 East Fifth Avenue Olympia, WA 98504 Dr. Frank F. Hooper, Member Atemic Safety and Licensing Board Robert C. Schofield, Director School of Natural Resources Skagit County Planning Department University of Michigan 120 West Kincaid Street Anr. 3.rbor, MI 48104 Mount Vernon, WA 98273 Gustave A. Linenberger, Member Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555

]$ Alan S. Rosenthal, Chairman _ . _ _ _ _ . . .

Atomic Safety and Licensing Appeal Board Robert Lcwenstein, Esq.

U.S. Nuclear Regulatory Commission Lowenstein, Newman, Reis & Axelrar Washington, D. C. 20555 1025 Connecticut Avenue, N.W.

Washington, D. C. 20036

-g Dr. John H. Buck, Member Atcmic Safety and Licensing Appeal Board Theodore Thomsc n U.S. Nuclear Regulatory Commission Perkins, Cole, Stone, Olsen Washington, D.C. 20555 & Williams 1900 Warhingtoct Bldg.

rp Michael C. Farrar, Member Scattle, UA 98101

'r' Atcmic Safety and Licensing Appeal Board Thomas F. Carr, Esq.

U.S. Nuclear Regulatory Commission Assistant Attorney General Washington, D.C. 20555 Temple of Justico

~Ulympia , '.. A '^%4 -

Occheting and Service Section CTnadian Consulate General Office of the Secretary Peter A. van Brakel U.S. Nuclear Regulatory Commission Vice-Consul

• Nashington, D. C. 20555 412 Plaza 600 (5 - W1 _l Z eessas) 6th and Stewart Street Seattle, WA 98101 Richard L. Black, Esq.

Counsel for NRC Staff Donald S. Means U.S. Nuclear Regulatory Commission Scx 277 office of the Executive Legal La Conner, WA 98257 Director Washington, D.C. 20555 Reger M. Leed, Esq. ,

1411 Fourth Ave. Bldg. 4610 ,2Ojc 7g . ) 7 ,;

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Seattle, WA 98101 Russell W. Busch, Esq.

Evergreen Legal Services 5308 Ballard Avenue N.U.

Seattle, WA 98107

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