ML19296B709
| ML19296B709 | |
| Person / Time | |
|---|---|
| Site: | Skagit |
| Issue date: | 02/15/1980 |
| From: | Swanson D, Treby S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 8002210395 | |
| Download: ML19296B709 (24) | |
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b UNITED STATES OF AMERICA 9 I" C
NUCLEAR REGULATORY COMMISSION E
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BEFORE THE COMMISSION it:
In the Matter of PUGET SOUND POWER & LIGHT COMPANY,
)
)
Docket Nos. STN 50-522 STN 50-523 l
(Skagit Nuclear Power Project, Units 1 and 2)
)
NRC STAFF BRIEF IN RE3PONSE TO COMMISSION ORDER OF JANUARY 16, 1980 Stuart A. Treby A
Assistant Chief Hearing Counsel for the NRC Staff Daniel T. Swanson Counsel for NRC Staff b
8002210 Feb ruary 15, 1980
TABLE OF CONTENTS Page TAB LE O F C ITATION S........................
11 1.
I NT RO D U CT I O N........................ 1 2.
BACKGROUND.........................
2 3.
DISCUSSION......................... 4 A.
Petitioners' Status As American Indian Tribes Alone Does Not Provide Sufficient Cause To Excuse The Extraordinary Tardiness Of The Filing Of Their Peti-tion.......................... 4 B.
Petitioners' Status As American Indian Tribes, When Considered In Connection With The Particular Facts And Circumstances Of This Case, Does Not Provide Sufficient Cause To Excuse The Extraordinary Tard-iness Of The Filing Of Their Petition Except As To A Li m i ted I s su e.................... 9 1.
The Pendency of Appellate Adjudications as to Peti-tieners' Treaty Rights and Federal Recognition Does Not Justify the Extraordinarily late Filing of the Pe t i t i o n..................... 10 2.
The Petitioners' Preoccupation With Other Matters Does Not Justify the Extraordinarily Late Filing of the Petition 12 3.
The Petitioners' Alleged lack of Information on Impacts of the Proposed Facility Does Not Justify the Extraordinarily Late Filing of the Petition.....................
13 4.
The Petitoners' Alleged Reliance on the Federal Government to Protect Their Interest Does Not Justify the Extraordinarily Late Filing of the Pe ti ti on....................., 13 5.
On the Issue of Low-Level Radiation, the Factors of 10 CFR 9 2.714 Weigh in Favor of Admi tting Petitioners.............
16 CO N Lil S ION,...........................
18
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TABLE OF CITATIONS Page
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COURT DECISIONS Blackbird v. Commissioner, 38 F.2d 976 (10th Cir.1930)..... 9 Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109 (D.C. Cir.1971) 8 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)......
7, 14 FPC v. Tuscarora Indian Nation, 362 U.S. 99 (1960)........ 8 Gila River Pima-Maricopa Indian Community v. United States, 7
427 F.2d 1194 (Ct. C1. 19 70)...................
Joint Tribal Council of Passamaquody Tribe v. Morton, 528 F. 2d 3 70 (1 st Ci r. 19 75)..........
- 7.......
7 Lac Courte Oreilles Band of Lake Superior Chippewa Indians v.
7 FPC, 510 F. 2d 198 (D. C. C i r. 19 7 5 )................
Manchester Band of Pomo Indians, Inc. v. United States, 363 5
F. Su pp. 1238 (N.D. Ca. 19 73 )..................
Seminole Nation v. United States, 316 U.S. 286 (1942)......
7 Superintendent of Five Civilized Tribes v. Commissioner, 9
195 U.S. 418 (1935)..........'.............
7 Tulee v. Washington, 315 U.S. 681 (1942).............
United States v. Washington, 520 F.2d 676 (9th Cir.1975), cert.
den., 96 S. Ct. 877 (1976) 6, 7,8,10,1 1,12 6, 7, 11 Uni ted S ta tes v. W ina ns, 198 U. S. 371 (19 04 )....,......
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NRC DECISIONS AND ORDERS Duke Power Company (Cherokee Nuclear Station, Units 1, 2 and 3),
ALAB-440, 6 NRC 624 (19 77)...................
12, 14 Duke Power Company (Cherokee Nuclear Station, Units 1, 2 and 3),
ALAB-431, 6 NRC 460 (19 77)...................
16
- 111 -
Page NRC DECISIONS AND ORDERS (Cont'd)
Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant),
CLI-75-5, 1 NRC 2 73 ( 19 75 ).................... 8 Puget Sound Power & Light Company, et al. (Skagit Nuclear Power Project, Units 1 and 2), LBP-78-38, 8 NRC 587 (1978)....... 3 Puget Sound Power & Light Company, et al. (Skagit Nuclear Power Project, Units 1 and 2), LBP-79-16, 9 NRC 711 (1979)....... 3,10,12,13 Puget Sound Power & Light Company, et al. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-523, 9 NRC 58 (1979)........
1, 3 Puget Sound Power & Light Company, et al. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-552,10 NRC 1 (1979)........ 4,9,10,12,14 Puget Sound Power & Light Company, et al. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-559,10 NRC 162 (1979).......
1,3,4,15 Puget Sound Power & Light Company, et al. (Skagit Nuclear Power Project, Units 1 and 2) Order (March 8,1979).......... 3 Puget Sound Power & Light Company, et al. (Skagit Nuclear Power Project, Units 1 and 2) Order (October 15, 19 79 ).........
3, 4 Puget Sound Power & Light Company, et al. (Skagit Nuclear Power Project, Units 1 and 2) Order (January 16, 19 80).........
1, 4 STATUTUES Atomic Energy Act of 1954, as amended, Section 189, 42 U.S.C. 2239.......................... 9 National Environmental Policy Act of 1969, Section 101(b)(1) 42 U. S. C. 9 4331 (b )(1 )...................... 8 REGULATIONS 10 C FR Pa rt 2, i 2. 786(a)....................
1, 4 10 CFR Part 2, 9 2.714......................
1,6,8,9,16,17
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
PUGET SOUND POWER & LIGHT
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Docket Nos. STN 50-522 COMPANY, ET AL.
)
STN 50-523 (Skagit Nuclear Power Project, Units 1 and 2)
NRC STAFF BRIEF IN RESPONSE TO COMMISSION ORDER OF JAt!UARY 16, 1980 1.
INTRODUCTION On January 16, 1980, the Commission issued an Order in this proceeding in which it directed the parties to brief a single issue arising out of the efforts of the Upper Skagit, Sauk-Suiattle, and the Swinomish Tribes (Petitioners or Tribes) to intervene as a party in this proceeding pursuant to 10 CFR S 2.714. The Order provided that the exercise of review was undertaken solely as a matter of Comis-sion authority pursuant to 10 CFR 2.786(a); therefore, the Tribes' petitions to review the Atomic Safety and Licensing Appeal Board (Appeal Board) decisions in ALAB-559,10 NRC 162 (1979) and ALAB-523, 9 NRC 58 (1979) were denied, to the extent inconsistent with the Order. Order, slip op. at 2.
The sole issue remaining before the Commission is:
Whether petitioner's status (American Indian tribes), separ:ta from or in conjuction wit, the particular other facts and cir-cumstances of and surrounding this case, gives rise to sufficient cause to excuse the extraordinary tardiness of the filing of the Tribes' petition to intervene. Order, slip op., at 2.
- The Staff understands the Commission to be asking two basic questions:
1) whether the Petitioners' status as American Indian Tribes alone pro-vides sufficient cause to excuse the extraordinary tardiness of the filing of their petition, or 2) whether the Petitioners' status as American Indian Tribes, when consid-ered in connection with the particular facts and circumstances of this case, constitutes sufficient cause to excuse the extraordinary tardi-ness of the filing of their petition.
The Staff's response to these two questions follows.
2.
BACKGROUND The present action arises out of a construction permit proceeding involving the proposed Skagit nuclear facility to be located in the Skagit River Valley in the State of Washington. The proceeding was noticed for hearing on December 20, 1974 (39 Fed. Reg. 46065). That notice established January 20, 1975 as the deadline for filing petitions to intervene., On June 13, 1978, the Tribes petitioned the Atomic Safety and Licensing Board (Licensing Board) for leave to intervene (Petition). The history of the consideration of the Tribes' petition is complex and extends over more than a year and a half during which numerous pleadings, replies, decisions and remands have been produced. A chronological listing of the major pleadings and decisions on this matter is set forth in Appendix A attached to the "NRC Staff's Response in Opposition to Tribes' Supplemental Petition For Review," which was submitted to the Commission on November 21, 1979. The major Licensing Board and Appeal Board decisions and Commission Orders that have led up to the current Commission's review of the Tribes' petition are summarized below.
The Licensing Board initially granted the Tribes' petition for intervention on November 24,1978(LBP-78-38,8NRC587). The Appeal Board vacated that decision and remanded the Tribes' petition to the Licensing Board for further consideration on January 29, 1979 (ALAB-523, 9 NRC 58). The Tribes filed with the Commission an initial Petition for Review of the Appeal Board's remand decision on February 29, 1979. The Commission issued an Order deferring action on that Petition on March 8,1979 until the Licensing Board completed its consideration of the matter on remand and any subse-quent review by the Appeal Board. On remand, the Licensing Board denied the Tribes' petition for intervention on June 1,1979 (LBP-79-16, 9 NRC 711) and the Tribes' appealed that determination.
The Appeal Board, af ter preliminarily considering the Tribes' appeal, issued a Memorandum and Order dated July 9,1979 (ALAB-552,10 NRC 1), noting
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particular deficiencies with respect to the Tribes attempt to establish sub-stantial " good cause" for their late-filed petition and permitting the Tribes an opportunity to address the deficiencies. Supplemental memoranda were filed by the parties and on August 31, 1979 the Appeal Board denied the petition on the grounds that it was untimely (ALAB-559, 10 NRC 162).
In an Order dated October 15, 1979, the Commission provided an opportunity for the Tribes to file a supplemental petition for review with regard to ALAB-552 and ALAB-559 within 15 days of the service of that Order. On November 5,1979, the Tribes filed a Supplemental Petition for Review seeking Commission review of the Appeal Board decisions. On January 16, 1980, the Commission issued an Order with regard to the Tribes' request for review.
In that Order, the
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Commission determined that this case "prasents a unique and important issue involving the Commission's responsibility to provide a meaningful public process on applications to construct nuclear power reactors and the policy of avoiding administrative delay." Order, Slip Op. pp.1, 2.
Accordingly, the Commission decided pursuant to its authority under 10 CFR 9 2.786(a) to review the one issue arising out of ALAB-559 that is quoted above and directed the parties to this proceeding to file briefs on that issue within 30 days of the date of the Commission's Order. The Tribes' petitions to review were denied, to the extent inconsistent with the Commission's Order.
3.
DISCUSSION A.
Petitioners' Status As American Indian Tribes Alone Does Not Provide Sufficient Cause To Excuse The Extraordinary Tardiness Of The Filing Of Their Petition The Staff has consistently maintained throughout this proceeding that Pett-tioners are not endowed with a special legal right to enter into this proceed-ing almost 3-1/2 years after publication of the Notice of Hearing in this proceeding solely because of their status as American Indians with special treaty fishing rights.
See, "NRC Staff's Answer to Petition to Intervene Filed on Behalf of The Upper Skagit Indian Tribe, The Sauk-Suiattle Indian Tribe, and the Swinomish Tribal Community," dated August 4,1978 (Staff Answer), pp. 5-8,13-17.M The Staff is unaware of any superseding legal developments, nor have the Tribes raised any new legal arguments, which would cause the Staff to alter this position.
Indeed, Petitioners have con-ceded that their status as American Ir ' as and the fiduciary relationship that exists with the United States gove. ament alone does not entitle them to an absolute right to intervene in a Commission proceeding.
Petitioner Tribes' Reply Brief to Answers of NRC Staff and Applicant, dated Septem-ber 5,1978, p. 21.
Any trust relationship that may exist between American Indians and the federal government does not grant to petitioners a waiver of their obli-gations to comply with the Corm 11ssion's regulations requiring the timely filing of petitions for leave to intervene.
In their petition for leave to intervene, the Tribes argued that there is a special trust relationship that exists between the United States and the Indians. Brief In Support Of Peti-tion To Intervene of Upper Skagit Tribe, Sauk-Suiattle Tribe and Swinomish Tribal Community, dated June 13,1978 (Brief in Support of Petition) pp. 8, 10). However, Petitioners mischaracterize this relationship as creating a legal right to intervene in NRC proceedings no matter how tardy the attempt may be. Petitioners relied on the De:ision of the Court in Manchester Band of Pomo Indians, Inc. v. United States,' 363 F.Supp.1238 (N.D. Ca.1973) to support their claim of special reistionship. That decision provides no 1/
See also, NRC Staff Response to Board Request and Petitioner Tribes' Responses, dated November 21,1978, p. 7; and NRC Staff's Response to Indians' Brief in Support of Appeal, dated June 29,19 79, pp. 3, 4.
guidance in detennining Petitioners' rights to intervene at the extraordinary late date at which they filed their petition.
In the referenced case, the Manchester Band borrowed money from the Bureau of Indian Affairs (BIA) in order to start a dairy. The Indians repaid the loan, and continued to deposit their profits from the dairy in an Indian money account with the BIA. The District Cet'rt ruled only that the Federal government, through the BIA, had a statutorily created fiduciary obligation to post a certain minimum rate of interest on the Indian accounts that the United States, through the BIA, held in trust (_Id., pp. 1242-43). The basis of this obligation was certain legislation which stipulated the minimum amount of interest that should be paid by the United States on Indian funds (25 U.S.C. 69159,161).
No such statutory obligation exists requiring the NRC to admit Petitioners as parties to this proceeding without otherwise satisfying the requirements of 10 CFR 6 2.714, including the requirement to timely file a petition for leave to intervene. Similarly, United States v. Washington, 520 F.2d 676 (9th Cir.1975), cert. den., 96 S. Ct. 877 (1976), also relied upon by Petitioners as a source of their rights, does not stand for the proposition that special rights of intervention were granted to the Indians via the Treaty of Point Elliott. To the contrary, the Court of Appeals in United States v. Washington quoted the following language from the Supreme Court Decision in United States v. Winans,198 U.S. 371, 381 (1904), r garding this treaty:
"In other words, the. treaty was not a grant of rights to the Indians, but a grant of rights from them - a reservatio of those not granted."
U.S. v. Washington, supra, at 684.
The Staff does not deny the existence of a special fiduciary relationship between the United States and the Indians.E United States v. Winans, supra, and Tulee v. Washington, 315 U.S. 681, 684-85 (1942) indicate that there exists an obligation of the government to protect the treaty interests of the Indians. This fiduciary relationship is not without bound, however.
The courts have declared that a general fiduciary relationship, unlimited and undefined, simply does not exist. Joint Tribal Council of Passamaquody Tribe v. Morton, 528 F.2d 370, 379 (1st Cir.1975); see also Gila River Pima -
Maricooa Indian Community v. U.S., 427 F.2d 1194 (Ct. C1.1970).
The Court of Appeals for the First Circuit concluded that:
A fiduciary relationship in this context must indeed be based upon a specific statute, treaty or agreement which helps define and, in some cases, limit the relevant duties..."
(Joint Tribal Council v. Morton, supra, at 379).
2]
Cf. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. FPC, S10 F.2d 198 (0.C. Cir.1975).
In that decision, the Court of AppeaTs upheld the FPC's authority to issue interim annual licenses for continued operation of a storage reservoir despite the refusal of the Indian tribe, upon whose land the reservoir existed, to consent to further use of the land.
In this decision the Court referred to a specific statutory requirement contained in the Federal Water Power Act of 1970 relating to the FPC to the ef fect that whenever a license is issued within an Indian reservat!%, a finding must first be made that the license will not interfere with the purpose for which the reservation was created (Id., p. 211).
In the current proceeding, no similar statutory require-ment is placed on the NRC in licensing nuclear power plants.
Even more important, the proposed site for the Skagit facility does not lie on Petitioners' reservation.
3/
This trust relationship has been recognized by the courts for a considerable length of time.
- See, e.g., Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Seminole Nation v. United States, 316 U.S.
286, 296-97 (1942).
In United States v. Washington, the Court of Appeals for the Ninth Circuit found federal responsibility only to protect the exercise of treaty tribes' rights to take anadromous fish from specified fishing areas as co-tenants with the State of Washington. The Court did not speak of rights with respect to intervention in federal proceedings, nor did it extend any rights arising from a fiduciary relationship to other aspects of Indian life such as socio-economic impacts.
The Staff construes the government's trust relationship over the Petitioners' fishing rights to be similar to its obligations created under the National Environmental Policy Act (NEPA). Under 9101(b)(1) of that Act, the federal government is charged with the responsibility, inter alia, to " fulfill the responsibilities of each generation as trustee of the environment for succeeding generations." 42 U.S.C. 9 4331(b)(1); Cf,. Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109 (D.C. Cir.1971).
It is beyond cavil, though, that a person may not rely on NEPA alone to justify late intervention in an NRC proceeding, but must justify the tardiness as required by 10 CFR 9 2.714(a). See also Nuclear Fuel Services, Inc. and New York State Atomic and Spa.ce Development Authority (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273 (1975). Likewise, there is no basis for extend-ing the trust relationship with the Indians to include an absolute right of intervention in NRC proceedings at any time. The Supreme Court has declared that "... it is now well settled by many decisions of this court that a general statute in terms applying to all persons includes Indians and their property interests." FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116
(1960); see also Superintendent of Five Civilized Tribes v. Commissioner, 295 U.S. 418 (1935), and Blackbird v. Commissioner, 38 F.2d 976 (10th Cir.
1930). Since Section 189 of the Atomic Energy Act of 1954, as amended, which provides for hearings and notice thereof, and 10 CFR 9 2.714 which provides for time limitations in such notices of hearing, apply to "any person", the Staff concludes that such time limitation', apply to Indians as well as non-Indians.
Indeed, Petitioners concede that the Atomic {nergy Act does not provide them with an absolute right of intervention, and that they can be admitted only if they comply with the Commission's regulations (Brief in support of Petition, pp. 39, 40).
In conclusion, the Staff submits that the relationship that may exist between the Petitioners and the federal government does not grant to Peti-tioners a waiver of their obligations to comply with the Commission regula-tions requiring timely filing of petitions for leave to intervene.
B.
Petitioners' Status As American Indian Tribes, When Considered in Connec-tion With The Particular Facts And Circumstances Of This Case, Does Not Provide Sufficient Cause To Excuse The Extraordinary Tardiness Of The Filing of Their Petition Except as to a Limited Issue The Indians Tribes have advanced several arguments in support of their claim that they have demonstrated good cause for the untimely filing of their Petition as a result of the particular circumstances of this case. The Staff has responded to these claims several times in this proceeding.O The Staff's position relative E s summarized below.
i to those arguments that the Indians are still pursuing 1.
The Pendency Of Appellate Adjudications As To Petitioners' f reaty Rights An(,
Federal Recognition Does Not Justify The Extraordinarily Late Filing Of The Petition The principal reason offered by Petitioners for their failure to file a timely petition is that the nature and extent of their treaty fishing rights were only determined by the Court of Appeals decision in United States v. Washington, 520 F.2d 676 (9th Cir.1975), cert. den., 96 S.Ct. 877 (1976) after the Notice of Hearing issued in the Skagit proceeding. Brief in Support of Petition, p. 6.
However, as the Licensing Board concluded in its second decision regarding the Petition, this assertion is not persuasive, since United States v. Washington did not confer upon the petitioners any rights which were prerequisite to their right of intervention in this proceeding. Order (LBP-79-16, 9 NRC 711, 714 (June 1,1979), hereinafter" Order"). Moreover, even if we were to assume, arquendo, that the proceeding did confer rights related to the Tribes' decision to petition to intervene in this proceeding, the fact remains that United States v. Washington was decided by the District Court in the Indians' favor in February,1974, some eleven months before the deadline for filing inter-vention petitions. See, Staff Answer, pp. 7, 8 and ALAB-552,10 NRC 1, 6.
4f See, _e.g,., Staff Answer, supra, pp. 5-21; and NRC Staff Response to Indians' TrTef In Support of Appeal, dated June 29, 1979, pp. 3-7.
y In their original petition to intervene, the Tribes also raised the matters of access to fishing sites, new information on geology and diffuser pipes and several miscellaneous concerns as justifying their late intervention.
These matters have not been pursued by the Tribes in their subsequent appeals.
The Staff's position on these matters and on the justification for late filing that they may or may not provide is set forth in the Staff Answer at pp. 17-21.
On pages 19 and 35 of the Brief in Support of Petition, the Tribes refer to their rights of access to and use of their usual and accustomed fishing sites as having been guaranteed since 1905 by the Supreme Court in United States v. Winans, 198 U.S. 371 (1905)- Although United States v. Winans did not address the Petitioners by name, it did establish the legal interpreta-tion of treaty language identical to that of the Treaty of Point Elliott under which Petitioners claim fishing rights.
In fact, the Court in United States v. Washington relied on United States v. Winans as a precedent in interpreting the language of the Treaty of Point Elliott, to which at least two of the Petitioners were parties.
Petitioners also contend that the Upper Skagit and Sauk-Suiattle tribes were not federally recognized until after United States v. Washington. Brief of
[ Petitioners] In Support of Appeal dated June 14,1979 (Appeal Brief),
pp. 2, 4.
Presumably, these two tribes would argue that they could not assert fishing rights until they were recognized. However, the Board prop-erly ruled that this contention does not advance Petitioners' claim of good cause resulting from newly created rights.6,f The asserted rew status of being federally recognized tribes (or lack thereof) was found to have no
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impact on Petitioners' vested treaty rights (United States v. Washington, supra, at 692,693), and the Licensing Board properly concluded that United States v. Washington did not confer on Petitioners any rights which were sf The Swinomish Tribal Community had been recognized by the federal govern-ment since 1934 (25 U.S.C. 6476), and the Court of Appeals found that the Upper Skagit Tribes were still not recognized as organized tribes (United States.v. Washington, supra, at 692).
prerequisite to their right of intervention in this proceeding. Order, 9 NRC at 714. Petitioners were free to assert fishing rights in advance of United States v. Washington, and cannot claim as good cause the alleged creation of new rights via their recognition resulting from the decision. Moreover, as persons whose interests might be affected by issuance of the Skagit construc-tion permits, the Indians, individually or as a group, always had a right to intervene independent of their being federally recognized tri')es.
2.
The Petitioner' Preoccupation With Other Matters Does Not Justify The Extraordinarily Late Filing Of The Petition Petitioners also claim that they have inadequate resources and that, as a consequence, they were unable to focus their attentions on this proceeding until recently (Anpeal Brief, pp. 4-7).
However, as the Licensing and Appeal Boards correctly indicated, preoccupation with matters other than an NRC proceeding cannot constitute good cause for an untimely filing. Order, 9 NRC at 714; ALA8-552, 10 NRC at 9-11.
A decision to the contrary would create a free license for potential intervenors to time their intervention petitions solely on the basis of personal convenience. Duke Power Co.
(Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 624, 644 (1977).E In sum, the Staff agrees with the Boards' conclusions that Petitioners' pre-occupation does not constitute good cause for the untimely filing, particularly in view of the extreme tardiness of the petition here.
7f Although Petitioners' preoccupation with pursuing their claims in United States v. Washington may well be considered more justifiable than was the excuse offered in Cherokee, the Appeal Board's principle announced in that proceeding is nonetheless applicable.
3.
The Petitioners' Alleged lack Of Infomation On Impacts Of The Proposed Facility Does Not Justify The Extraordinarily Late Filing Of The Petition ~
Petitioners also claimed difficulty in gaining sufficient information to enable them to make an informed decision whether to intervene. Appeal Brief, p. 7.
Petitioners originally asserted as good cause that they had difficulty in getting sufficient information concerning the proposed project. Brief in Support of Petition, p. 7 The Licensing Board concluded, however, that there was exten-sive publicity about the proceeding and that the plans for the facility have been publicly available. Order, 9 NRC at 714.
In response, the Indians focused their argument on the quality of information that they possessed; i.e. that they were not sufficiently informed concerning environmental impacts to make an intelligent decision concerning intervention. Appeal Brief, pp. 8, 9.
In support of this claim, the Petitioners assert that they lacked information regarding radiation doses from the facility as well as other matters. Appeal Brief, pp. 8, 9.
However, they fail to identify any new information which was nr available 3-1/2 years ago and which now leads them to the conclusion that radiation doses are unknown. 8 sent such a showing, Petitioners have failed to demonstrate good cause for delaying their filing of the Petition.
4.
The Petitioners' Alleged Reliance on the Federal Government To Protect Their Interest Does Not Justify The Extraordinarily Late Filing Of The Petition Petitioners finally claim as good cause that they had relied upon their federal trustee to ensure that their health and treaty rese rce would be protected. The Indians cite their reliance upon environmental conclusions contained in the Staff's FES as creating this false sense of security. Appeal 3rief, p.10.
Presumably the references to the Staff's FES indicate that the Indians had turned to the NRC for their federal protection.
However, the Indians offer no basis for assuming that the NRC Staff would give greater attention to the needs of the Tribes as opposed to the public interest generally. Nor have Petitioners shown any significant new information indicating that the NRC Staff failed to pursue actively its duty of investigation to assure that the the general public's interests, including those interests of the Tribes, would not be significantly affected by the construction and operation of the proposed Skagit nuclear facility, such as would justify their filing a petition nearly 3-1/2 years late. The Licensing Board correctly concluded that, absent such justification, the Indians' disappointment with the federal government does not constitute good cause for the delay.E Order, 9 NRC at 715; ALAB-552, 10 NRC 1, 8-10.
In response to ALAB-552, the Tribes set forth three claimed instances in which the Staff had allegedly furnished erroneous 'nformation on matters of basic fact which was relied on with the result that the Tribes failed to petition to intervene when they were required to do so. Petitioner Tribes' Supplemen-tal Memorandum in Response to Order of July 9,1979, dated July 30, 1979 8/
The Appeal Board rejected a similar claim as being good cause for a late filing in the Cherokee decision, supra. There, a petitioner who filed 3 years late claimed that she first became aware, after attending some of the hearings and examining the documents in the proceeding, that her interests were not being adequately) protected by any of the participantsThe App (ALAB-440, supra, 6 NRC at 644, 645.
none of the parties claimed to represent the interests of the petitioner specifically, as opposed to the public interest generally, the petitioner assumed the risk that the parties' degree of involvement in the proceeding would not fulfill her expectations (Id.).
(Supplemental Memorandum). These matters involved 1) a concern related to the possible unique genetic or somatic impact of plant radiation on the Tribes resulting from th:1r assertedly greater exposure risk and higher than average rate of intermarriage, 2) a concern over the socio-economic impact which the plant might have on Indian communities, and 3) the possible effects of various plant components and construction work on the Skagit River environment fishery. The Appeal Board dismissed these claims, decidi g that the Tribes did not disclose either a misrepresentation or a non-disclosure by the NRC Staff, the Department of the Interior, or any other federal agency of a fact material to the assessment of the likely effects of the construction and operation of the Skagit facility upon tribal interests. ALAB-559, 10 NRC 162, 164-169.
With respect to the concern related to radiation effects, the Appeal Board concluded that nothing in the FES gave the Tribes the slightest cause to think that an evaluation of radiation effects on the Indian population would be undertaken by the Staff. Accordingly, the FES cannot serve to satisfac-torily explain the interval between the May 1975 issuance date for the FES and the filing of the Tribes' intervention petition three years later. ALAB-559, 10 NRC at 166-167.
The Appeal Board likewise found that the absence of a mis-representation or withholding of a material fact by the Staff as to the scope or the fruits of its socio-economic and Skagit River environment / fishery impacts inquiry precludes the Tribes from now claiming that they were misled into relying on the federal government to their detriment.
Id. at 167-168.
Accordingly, the Staff submits that reliance on the federal government is not a sufficient excuse for the Indians' untimely filing. However, as we discuss below, the Staff does consider that as to the single issue of genetic impacts the Tribes should be permitted to participate in this proceeding.
5.
On The Issue Of Low-Level Radiation The Factors Of 10 CFR 6 2.714 Weigh In Favor of Admitting PetitionersS As noted in the previous section, the Staff agrees with the Appeal Board that the Tribes have not asserted a good excuse for failing to raise earlier the issue of whether they might be impacted in a unique way by normal low level radiation released by the Skagit facility should it be licensed to operate.
9]
The Commission's Order limits parties' responses to the issue of whether certain factors give rise to " sufficient cause" to excuse the extra-ordinary tardiness of the filing of the Tribes' petition to intervene.
As indicated by the Appeal Board in Duke Power Company (Perkins Nuclear Station, Units 1, 2 & 3), ALAB-431, 6 NRC 460, 462 (1977):
It is settled that the ' good cause' determination [for late-filed petitions to intervene] is to be made on the basis of a consideration of both (1) the substantiality of thc justifica-tion offered for the late filing and (2) the four factors specifically enumerated in Section 2.714(a).
The four factors of 2.714(a) are, in brief, the availability of other means to protect petitioners' interests, the extent to which petitioners' participation would assist in developing a sound record, the extent to which petitioners' interest might be represented by existing parties, and the extent to which petitioners' participation might delay the proceeding.
The Staff has construed the Commission's Order as pemitting a consid-eration of these four factors in determining whether there is "suffi-cient cause" to excuse the Tribes' late petition. A more detailed analysis of the four factors of 10 CFR 9 2.714(a) is set forth in NRC Staff Response to Board Request and Petitioner Tribes' Responses, dated November 21, 1978.
Nevertheless, the Staff has consistently taken the position that the Tribes' Petition presents a very close question that ultimately hinges on a balancing of the extreme tardiness of the petition at this stage of the proceeding against the unique interests advanced.
Af ter considering the factors set forth in 10 CFR 6 2.714(a), the issues raised by the Tribes, the studies undertaken by them, and, finally, the state of the current record in this proceeding, the Staff previously concluded that Peti-tioners should be allowed tu intervene on the one issue raised by them of the genetic and somatic effects on the Indians from low-level radiation.IOf This conclusion was reached after giving great weight to Petitioners' claim that they have an unusually high amount of inbreeding which renders them particularly susceptible to radiation damage. The Staff supports Petitioners' limited intervention on this one issue because it has not been previously considered on the record of this proceeding and probably would not be explored on the record but for their intervention. We believe Petitioners should be admitted as parties on this limited issue because they are in a unique position to contribute to a full and adequate discussion on this issue on the record.N Consequently, the Licensing Board's consideration of this
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issue would not involve a relitigation of an old issue nor should it delay 10f See, NRC Staff Response to Indians' Brief In Support of Appeal, supra, pp. 7-13.
J_1f Since the Staff submitted its Response to Indians' Brief in Support of Appeal, supra, the Staff has secured an expert to consult on the radiation impact on the Tribes of the proposed Skagit facility. The views of the consultant were provided to the Staff and were transmitted to the parties, the Petitioners, and the Boards as an attachment to a letter from R. Black, Counsel for the Staff, to R. Busch, Counsel for two of the Petitioners, dated December 14, 1979.
the ultimate issuance of an LWA or constiuction permits for the Skagit facili ty.
CONCLUSION For the reasons set forth herein, the Staff concludes that Petitioners' status as American Indians does not in and of itself provide good cause for the extraordinary tardiness of the filing of the Tribes' Petition. However, this status, when considered in connection with the facts and circumstances of this case, does give rise to sufficient cause to excuse the untimely filing with respect to the limited issue of the radiation effects of operation of the proposed facility on the Indian population. As to this limited issue, the Staff believes that Petitioners should be permitted to intervene.
Respectfully submitted,
/h/E4f Stuart A. Treby Assistant Chief Hea ing Counsel for the NRC Staff filASV
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Daniel T. Swanson Counsel for NRC Staff Dated at Bethesda, Maryland this 15th day of February,1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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PUGET SOUND POWER & LIGHT COMPANY, )
- ~ ~ ~ ~ ~ET AL.
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Docket Nos. STN 50-522
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STN 50-523 (Skagit Nuclear Power Project,
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Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF IN RESPONSE TO COMMISSION ORDER OF JANUARY 16, 1980" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commis-sion's internal mail system, this 15th day of February, 1980:
Alan S. Rosenthal, Esq., Chairman
- Dr. Frank F. Hooper, Member Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Board School of Natural Resources U.S. Nuclear Regulatory Commission University of Michigan Washington, DC 20555 Ann Arbor, MI 48109 Dr. John H. Buck, Member
- Mr. Gustave A. Linenberger*
Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Robert Lowenstein, Esq.
Michael C. Farrar, Esq., Member
- Lowenstein, Newman, Reis, Atomic Safety and Licensing Appeal Axelrad & Reis Board Suite 1214 U.S. Nuclear Regulatory Commission 1025 Connecticut Avenue, N.W.
Washington, DC 20555 Washington, DC 20036 Valentine B. Deale, Esq., Chairmar
- Robert C. Schofield, Director Atomic Safety and Licensing Board Skagit County Pla.- 4ng Department 1001 Connecticut Avenue, N.W.
120 W. Rincaid St Washington, DC 20036 Mount Vernon. WA 73 Donald W. Godard, Supervisor Mr. Lloyd K. Marbet Siting and Regulation c/o Forelaws on Board Department of Energy 19142 S. Bakers Ferry Road Room 111, Labor and Industries Boring, OR 97009 Building Salem, OR 97310 Mr. Nicholas D. Lewis Richard D. Bach, Esq, Chairman Rives, Bonyhadi & Drummond Washington State Energy Facility 1400 Public Service Building Site Evaluation Council 920 S. W. 6th Avenue 820 East Fifth Avenue Portland, OR 97204 Olympia, WA 98504 Roger M. Leed, Esq.
F. Theodore Thomsen, Esq.
1411 Fourth Av(nue Perkins, Coie, Stone, Olsen Seattle, WA 98101
& Williams 1900 Washington Building Warren Hastings, Esq.
Seattle, WA 98101 Associate Corporate Counsel Portland General Electric Company Richard M. Sandvik, Esq.
121 S.W. Salmon Street Assistant Attorney General Portlana, OR 97204 State of Oregon Department of Jus: ice James W. Durham, Esq.
555 State Office luilding Portland General Electric Company Portland, OR 9720?,
121 S.W. Salmon Street TB 17 Canadian Consulate leneral Portland, OR 97204 Robert Graham Vice-Consul Atomic Safety and Licensing Board 412 Plaza 600 Panel
- 6th & Stewart U.S. Nuclear Regulatory Commission Seattle, WA 98101 Washington, DC 20555 Kevin M. Ryan, Esq.
Atomic Safety and Licensing Appeal Assistant Attorney General Panel (5)*
Temple of Justice U.S. Nuclear Regulatory Commission Olympia, WA 98504 Washington, DC 20555 Patrick R. McMullen Docketing and Service Section (7)*
Skagit County Prosecuting Office of the Secretary Attorney U.S. Nuclear Regulatory Commission Courthouse Annex Washington, DC 20555 Mount Vernon, WA 98273 Samuel J. Chilk (12)*
Patrick Moore, PhD, President Secretary of the Commission Greenpeace Foundation U.S. Nuclear. Regulatory Commission P. O. Box 34397 Washington, DC 20555 2623 West 4th Avenue Vancouver, B.C.
Russell W. Busch, Esq.
V6K 1P8 Attorney for Upper Skagit Indian Tribe and Sauk-Suiattle Indian Charles O'Connell, Esq.
Tribe Office of the Solicitor -
Evergreen Legal Services Indian Affairs 520 Smith Tower Department of the Interior Seattle, WA 98104 Washington, DC 20240
. tid Stuart A. Treby
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Assistant Chief He.aring Counsel for NRC Staff