ML19275A678

Responds to Intervenors Upper Skagit Indian Tribe,Sauk Suiattle Indian Tribe & Swinomish Tribe 790730 Supplemental Memorandum.Aslab Should Affirm ASLB Denial of Intervention. W/Certificate of Svc

ML19275A678
Person / Time
Site:	Skagit
Issue date:	08/09/1979
From:	Little D, Thomsen F PERKINS, COIE (FORMERLY PERKINS, COIE, STONE, OLSEN, PUGET SOUND POWER & LIGHT CO.
To:
References
NUDOCS 7910180107
Download: ML19275A678 (6)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 90 FORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

PUGET SOUND POWER & LIGHT ) Docket Nos. 50-522 COMPANY, et al. ) 50-523

)

(Skagit Nuclear Power Proje~ct, ) August 9, 1979 Units 1 and 2) )

APFLICANTS' REPLY TO PETITIONER TRIBES '

SUPPLEMENTAL MEMORANC,:M OF JULY 30, 1979 The Appeal Board, in its Memorandum and Order dated July 9, 1979, set forth its initial consideration of the appeal by the Upper Skagit Indian Tribe, the Sauk-Suiattle Indian Tr ibe, and the Swinomish Tribal Community (hereinaf ter "the tribes") of the Licensing Board's order denying their untimely petition to intervene. ALAB-552, 9 NRC . The Appeal Board concluded that "there are crucial gaps in the tribes ' showing" of " good cause" for their tardy petition to intervene. Id., slip op, at

18. However, the Appeal Board held in abeyance its final de-termination on the " good cause" factor of 10 CFR 2.714 (a) in order to provide the tribes an additional opportunity to cure the deficiencies in their presentation on this factor. Id.,

slip op. at 18, 19.

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The deficiencies in the tribes ' showing were described by the Appeal Board as follows:

Thus, it is not enough for the tribes simply to assert that they were lulled into a false sense of security by the appraisals of impact given them by Interior or reflected in the FES prepared by the NRC Staff. What the tribes must 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 in-formation which prompted their own inaction prior to June 1978.

Id., slip op, at 16, 17. The Appeal Board further advised the tribes to confine their supplemental memorandum to curing the deficiencies and to cover each identified deficiency with par-ticularity. Id., slip op. at 19.

The tribes ' supplemental memorandum, dated July 30, 1979, brought forth no information that had not previously been con-tained in their pleadings or in the record. Petitioner Tribes' Supplemental Memorandum in Response to Order of July 9, 1979 (here ina f ter "Tr ibes ' Supplemental Memorandum") .1 Indeed, 1

The tribes' supplemental memorandum in part exceeds the confines that the Appeal Board specified. For example, the tribes complain that Skagit County was recently allowed

" intervention" without having to excuse its lateness. However, Skagit County's participation is as an interested county pur-suant 2.714. to The 10 CFR 2.715(c) and not as an intervenor under 10 CFR former regulation contains no timeliness require-ment whereas the latter does.

1i84 355

the tribes described their memorandum as being filed "to insure any required exhaustion of administrative remedies."

Id., p.

3. Since the tribes stand on the present record before the Appeal Board, the deficiencies in their presentation remain uncured. However, a brief reply to the arguments reiterated by the tribes seems warranted.

Genetic and Somatic Effects. The tribes' offering on al-leged genetic and somatic effects suffers, as it has all along, f.;om the absence of concrete information in support of their concerns. They assert that the risks to them are "rqe1 and significant" even though the " receptor Indian population" remains undefined in any helpful detail. Tribes ' Supplemental Memorandum, p. 4. They claim that "relatively large numbers" of Indians fish near the plant site, yet neither quantify the number of Indian fishermen, describe where such fishin'g occurs, not specify the length of time spent fishing within the low population zone. Id., p. 5.

The tribes also point to several paragraphs from the FES, which they allege to be "possibly erroneous." Id., p. 5. They are unable, however, to prove their allegation. For example, they claim that the NRC staff, at page 7-2 of the FES, relied upon WASH-1400. Id., pp. 5-6. The tribes are mistaken. As clearly explained in the FES (follows Tr. 2913, pp. 7-1, 7-2),

the results of the Reactor Safety Study were available in draft i184 356 form and would be incorporated into the regulatory process upon completion of the work. WASH-1400 was not finalized until several months after publication in May 1975 of the FES.

Socio-economic Impacts. The tribes merely reiterate argu-ments previously advanced regarding alleged socio-economic impacts on them. They claim both (1) that the FES did not even mention socio-economic impacts upon Indians and (2) that they relied upon the FES in not intervening sooner. Tribes' Supple-mental Memorandum, pp. 7, 8. These claims are contradictory.

If the FES did not mention the question of socio-economic im-pacts upon Indians, the FES can hardly be charged with lulling the tribes into a sense of security and hence inactivity con-cerning socio-economic impacts upon them. Furthermore, the tribes have not identified any fact that, had it been known by the NRC staff, would have caused the staff to revise its con-clusions in the FES.

Fisheries Impacts. With respect to the subject of alleged fisheries impacts, the tribes rest upon arguments made in their earlier briefs. Tribes' Supplemental Memorandum, pp. 8, 9.

They do not present any new information, let alone any examples of erroneous material information. Instead, the tribes mis-takenly assert that the Appeal Board has determined that there will not be any substantial fisheries impacts. The Appeal, Board has made no such determination; the merits of the case i184 757 are not before it. The Appeal Board's focus was only upon the tribes' inadequate showing of good cause for their untimely petition to intervene.

The tribes' supplemental memorandum falls far short of the

" good cause" showing invited by the Appeal Board. The defi-ciencies remain. Applicant's urge the Appeal Board to find that the tribes lack good cause for their untimely petition, and to affirm the Licensing Board's denial of intervention.

DATED: August 9, 1979. ,

~

Respectfully submitted, PERKINS, COIE, STONE, OLSEN & WILLIAMS

s. C)

By _j //

F. Theodore Thomsen By oudJdas S. Little Attorneys for Applicants 1900 Washington Building Seattle, Washington 98101 Phone (206) 682-8770 Of Counsel:

Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue N.W.

Washington, D. C. 20036 (202) 862-8400 ,

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 - *- -                                        Date:    August 9, 1979 Valentine B. Deale, Chairman         Robert C. Schofield, Director Atomic Safety and Licensing Board    Skagit County Planning Department 1001 Connecticut Avenue, N.W.        218 County Administration Building Washington, D. C. 20036          Mount Vernon, WA       98273 Dr. Frank F. Hooper, Member          Richard M. Sandvik, Esq.

Chairman of Resource, Ecology, Assistant Attorney General Fisheries and Wildlife 500 Pacific Building Camp Filibert Roth 520 S.W. Yamhill Iron River, MI Portland, OR 97204 Gustave A. Linenberger, Member Roger M. Leed, Esq. Atomic Safety and Licensing Board Room 610 U.S. Nuclear Regulatory Commission 1411 Fourth Avenue Building Washington, D. C. 20555 Seattle, WA 98101 I Alan S. Rosenthal, Chairman CFSP and FOB Atomic Safety and Licensing E. Stachon & L. Marbet Appeal Board 2345 S.E. Yamhill U.S. Nuclear Regulatory Commission Portland OR 97214 Washington, D. C. 20555 Robert Lowenstein, Esq. Dr. John H. Buck, Member Lowenstein, Newman, Reis, Axelrad Atomic Safety and Licensing & Toll Appeal Board 1025 Connecticut' Avenue, N.W. U.S. Nuclear Regulatory Commission Washington, D. C. 20036 Washington, D. C. 20555 Warren Hastings, Esq. Michael C. Farrar, Member Associate Corporate Counsel Atomic Safety and Licensing Portland General Electric Company Appeal Board 121 S.W. Salmon Streat U.S. N" clear Regulatory Commission Portland, OR 97204 Washington, D. C. 20555 Richard D. Bach, Esq. Docketing and Service Section Rives, Bonyhadi, Drummond & Smith Office of the Secretary 1400 Public Service Building U.S. Nuclear Regulatory Commission 920 S.U. 6th Avenue Washington, D. C. 20555 Portland, OR 97204 (original and 20 copies) Canadian Consulate General Richard L. Black,.Esq. Donald Martens, Consul Counsel for NRC Staff 412 Plaza 600 U.S. Nuclear Regulatory Commission 6th and Stewart Street Office of the Executive Legal Seattle, UA 98101 Director Washington, D. C. 20555 Patrick R. McMullen, Esq. Skagit County Prosecuting Attorney Nicholas D. Lewis, Chairman Courthouse Annex Energy Facility Site Evaluation Mount Vernon, WA 98273 Council 820 East Fifth Avenue Russell W. Busch, Esq. Olympia, WA 98504 Legal Services Center Thomas F. Carr, Esq. 520 Smith Tower 506 Second Avenue Assistant Attorney General Seattle WA 98104 1184 359 Temple of Justice Olympia, WA 98504 Donald S. Means, Esq. Box 277 La Conner WA 98257 7/6/79}}