ML20033A877
| ML20033A877 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 11/18/1981 |
| From: | Gehr A JOINT APPLICANTS - PALO VERDE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8111300066 | |
| Download: ML20033A877 (15) | |
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00tKETED UNITED STATES OF AMERICA U91RC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSIb Byg P5i18 In the Matter of
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'fiME ARIZONA PUBLIC SERVICE
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DOCKET NOS. STN'50-528 COMPANY, et al.
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STN 50-52
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(Palo Verde Nuclear Generating)
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Station, Unit.s 1, 2 and 3
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lc' RESPONSE TO NEW MEXIC6 c.,, k ;nig4'O
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7 JOINT APPLICANTS' ATTORNEY GENERAL'3 MOTION FOR LEAVE TO AMEND o
- 4 MOTION TO PARTICIPATE AND AMENDED MOTIONr
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Joint Applicants hereby respond to the Newg~._ypcog x L..
Attorney General's undated Motion for Leave to Amend His Motion to Participate as an Interested Agency of the State of New Mexico (hereinafter designated " Motion to Amend").
In the event the Board grants the Motion to Amend, Joint Ap-plicants also respond herein to the Attorney General's Amended Motion to Participate (hereinafter referred to as
" Amended Motion").
1.
Response to Motion to Amend The Attorney General alleges in his Motion to Amend that the proffered Amended Motion (1) will clarify the c ener<1 statements of the original motion and (2) will not prejulice any of the parties.
As to the first allegation, Joint Applicants would simply note that a casual reading of the Amended Motion reveals that the Attorney General has g
shifted his alleged interest in this proceeding from one I
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based on rates to one based on public health and safety.
- Thus, far from simply clarifying his earlier general statements, the Attorney General now wishes to establish a completely new interest upon which to predicate his partici-pation in this proceeding.
During the October 29, 1981, telephone conference among the Chairman of the Licensing Board, the parties, and the Attorney General, the Attorney General requested, and was granted, the opportunity to reply to the Joint Applicants' answer, and the NRC Staff's re-sponse, to the Attorney Ge.leral's original motion to par-ticipate.
See Memorandum and Order, at 3 (Ncvember 3, 1981).
Based on the Attorney General's new alleged interest, Joint Applicants can only conclude that he apparently has had sec-ond thoughts about relying on the interest of New Mexico ratepayers to gain admission to this proceeding.
As to the Attorney General's second allegation, it has been Joint Applicants' hope that all pleadings respect-ing the Attorney General's participation would have been re-ceived well in advance of the prehearing conference set for November 18, 1981, so that the Board would be able to make a ruling at that time.
The Attorney General apparently is of the understanding that the Board intends to make a ruling at the prehearing conference.
See The Attorney General'r, Re-sponse to Joint Applicants' Answer and NRC Staff Response to Motion to Participate as Interested Agency of the State of New Mexico, at 2 (November 6, 1981).
With the filing by the Attorney General of his Motion to Amend, however, it is now unlikely that the other parties will be able to respond to the Motion to Amend and, if the Motion to Amend is granted, the Amended Motion, in time for the Board to consider such responses and make its ruling on November 18, 1981.
In sum, the grant of the Motion to Amend will most likely delay a ruling on the Attorney General's participation.
If the At-torney General is ultimately permitted to participate, a de-lay in the initial ruling will cause a concomitant delay in whatever discovery the Attorney General will be permitted to conduct.
A delay in discovery could delay the hearing in this proceeding.
Based on the foregoing, Joint Applicants respect-fully request that the Attorney General's Motion to Amend be denied.
2.
Response to Amended Motion In their answer to the Attorney General's original motion to participate under 10 CFR S 2.715(c), Joint Appli-cants pointed out that the participation by a state in a li-censing proceeding is not automatic.
Two requirements must l
be satisfied in order for a state to participate under 10 CFR 5 2.715(c).
First, the entity seeking admission must be a bona fide representative of the state.
Second, the entity must adequately set forth a cognizable interest upon which it predicates its participatien in the proceeding.
The lat-l - _
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ter requirement flows from the Appeal Board decision in i
i Exxon Nuclear Company, Inc. (Nuclear Fuel Recovery and Re-I cycling Center), ALAB-447, 6 NRC 873 (1977), the-only deci-sion in which the meaning of the term " interested State" in 10 CFR 5 2.715(c) is discussed.
The Exxon case involved an application by the Exxon Nuclear Company, Inc. for a permit to construct a re-processing plant in Roane County, Tennessee.
The California Energy Resources Conservation and Development Commission (Energy Commission) submitted a Notice of Participation f
under 10 CFR 5 2.715(c).
Exxon opposed admission of the j
Energy Commission on the grounds that 5 274.1 of the Atomic Energy Act (42 U.S.C.
5 2021(1)) prohibited the participa-tion in a licensing proceeding by any state other than the one in which the licensed activity was to be conducted.
The Licensing Board construed that section of the Atomic Energy 4
Act to require that a reasonable opportunity be afforded for state representatives to participate, and so permitted the i
Energy Commission's participation.
Exxon Nuclear Company, Inc.
(Nuclear Fuel Recovery and Recycling Center),
l The Licensing Board's decision was appealed by i
Exxon.
In a 2-1 decision, with three separate opinions, the
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Appeal Board affirmed.
Mr. Sharfman rejected Exxon's inter-pretation of 5 274.1 of the Act.
He found that 5 274.1 es-tablished only that the state of location has a right to
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l participate; it did not prohibit the Commission from grant-ing other states permission to do so.
He also noted that under California law, the Energy Commission could not li-cense a nuclear power plant unless it found that there will be facilities available for reprocessing or storage of the spent fuel.
Because at the time such facilities did not exist, Mr. Sharfman concluded that the Energy Commission had a significant interest in the decision as to whether con-struction of the facility proposed by Exxon should be autho-rized.
6 NRC at 877.
Mr. Saltzman likewise rejected Exxon's interpre-tation of 5 274.1 of the Act.
He also found that the Energy Commission had more than a " general" interest in the pro-ceeding, given that there were several nuclear power plants which had been proposed for construction in California.
Mr.
Saltzman added:
"To reach that conclusion does not com-pel us to allow every state to participate in every proceeding to li-cense a nuclear power plant.
' Interest' in the context of individual power plants may indeed be more limited; but this case involves a recycling and stor-age facility."
Id.
at 879 (emphasis added).
Dr. Johnson dissented from the conclusion reached by the other two members of the Appeal Board.
He noted that in r number of cases where neighboring states have partici-pated in licensing proceedings, the interest of the partici-pating state "was directly pertinent to the issues being ad-.
judicated."
Id. at 880.
Dr. Johnson concluded that the Energy Commission's interest in the Exxon proceeding was not sufficiently pertinent to the issues being adjudicated to allow it to participate.
Id. at 881.
Although the three Appeal Board members in Exxon did not reach the same result, they were unanimous in con-struing the term " interested state" in 10 CFR $ 2.715(c) to require the showing of an interest before permitting a state to participate, at least in cases where such participation is challenged.
In sum, the state must demonstrate more than a mere " desire" to participate.
It must demonstrate that it has an interest cognizable under the Atomic Energy Act or the National Environmental Policy Act.
According to Dr.
Johnson in the Exxon case, such interest should be pertinent to the issues being adjudicated.
As noted by each of the Appeal Board members in Exxon, in a number of cases neighboring states have indeed participated in licensing proceedings.
However, in each of those cases, with one exception, the planned nuclear facil-ity was either along the border of, or within a relatively short distance (25 miles) of the neighboring state.
The lone exception is Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), LBP-73-8, RAI-73-2 130 (1973), where the state of Kansas was permitted to par-ticipate under 10 CFR $ 2.715(c).
However, Kansas nad an interest in the proceeding because it had been identified specifically as the proposed storage location for radf.oac-tive waste generated by the Vermont Yankee Plant.
Having set forth the interest requirement under 10 CFR 5 2.715(c), it remains to be seen whether the Attorney General has stated a cognizable interest in his Amended Motion.
A review of the Amended Motion reveals that the Attorney General has added four new paragraphs -- nos. 4, 5,
6, 7 -- bearing on the interest of New Mexico.
(The asser-tion of an interest on behalf of New Mexico ratepayers has been deleted.)
Paragraph 7 identifies the public health and safety of the people of New Mexico and the environment of New Mexico as interests which may be affected by the opera-tion of PVNGS.
In attempting to relate these interests to the Palo Verde proceeding, the Attorney General refers in Paragraph 4 to the common border shared by New Mexico and Arizona and the common transportation network of highways and railroads.
In Paragraph 5 he adds that fresh and/or spent fuel assemblies and other radioactive materials asso-ciated with PVNGS may be transported through, stored in, disposed of in or reprocessed in New Mexico.
The shortcom-ing of the allegation in Paragraph 5 is that it is nothing more than sheer speculation and thus does not contribute anything to the establishment of a cognizable interest.
New Mexico has not been identified by Joint Applicants as the location for any of the mentioned activities.
Furthermore, the environmental impacts of such activities are established 1 :
by the Commission's regulations.
See 10 CFR 55 51.20, 51.21.
As to the safety aspects of such activities, they are outside the scope of an operating license proceeding for a nuclear power reactor.
See Pennsylvania Power & Light Co.,
et al.,
(Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NRC 291, 315 (1979).
The Attorney General adds in Paragraph 6 that the operation of PVNGS may result in radiological health effects in New Mexico.
The basis for this statement is that (1) New Mexico is within the 500 mile radius for such effects estab-lished by a Report to the American Physical Society and (2) the prevailing winds are from the West to the East.
The Attorney General by this statement apparently desires to establish a public health and safety interest based on geo-graphic proximity to the Palo Verde site.
This Board may take official notice of the fact that the Palo Verde site is approximately 200 miles west of the Arizona-New Mexico bor-der.
In several cases involving private litigants, geogra-phic proximities of 70-100 miles to a nuclear facility site have been deemed "beyond the zone which might give rise to a health and safety interest."
Houston Lighting & Power Co.
(South Texas Project Units 1 & 2), LBP-79-10, 9 NRC 439, 461 (1979); see Exxon Nuclear Company (Nuclear Fuel Recovery and Recycling Center), LBP-77-59, 6 NRC 518, 519-20 (1977).
By this standard, a distance of 200 miles is clearly too great to create a health and safety interest.
In sum, the Attor-ney General has failed to state an interest that is porti-nent to the issues to be adjudicated in the Palo Verde pro-ceeding.
Accordingly, the Amended Motion should be denied.
3.
Discretionary Participation Presumably recognizing the shortcomings cf his al-leged interest, and in an apparent attempt to convince the Board to exercise its discretion to allow his participation, the Attorney General goes on to state in Paragraph 10 of the Amended Motion that he could be of assistance to the Board respecting the finances of Public Service Company of New Mexico (PNM) and El Paso Electric Company (EPEC).
In the analogous situation of a private litigant, it has been held that the factors bearing on the exercise of a licensing board's discretion are suggested by the Commission's regula-tior.s, particularly those governing a determination on late intervention, 10 CFR S 2.714(a), and the more general fac-tors of 10 CFR 5 2.714(d).
Portland General Electric Com-pany (Pebble Springs Nuclear Power Plant Units 1 and 2),
CLI-76-27, 4 NRC 610, 616 (1976).
The five factors from 10 CFR S 2.714(a) are:
(i)
Good cause, if any, for fail-ure to file on time.
(ii)
The availability of other means whereby the petitioner's interest will be protected.
(iii)
The extent to which the peti-tioner's participation may reasonably be
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expected to assist in developing a sound record.
(iv)
The extent to which the peti-tioner's interest will be represented by existing parties.
(v)
The extent to which the peti-tiener's participation will broaden the issues or delay the proceeding.
With respect to factor (i), the Attorney General has given no reason that he was unable to file the motion to participate at an earlier date or that there were circum-stances which conceivably might justify his choice not to file earlier.
In view of no reason being offered, this first factor weighs against allowing his participation.
As to factor (ii), the Attorney General has yet to establish a cognizable interest in this proceeding.
Ac-cordingly, this factor also weighs against his participa-l tion.
l With respect to factor (iii), the Attorney Gen-eral, as already noted, argues that his participation will be of assistance to this Board in making its decision.
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However, the argument is barren of specifics respecting the basis of the Attorney General's alleged familiarity and ex-l l
pertise concerning the finances of PNM and EPEC.
Further-more, in Paragraph 13 of the Amended Motion, the Attorney General states that he wishes to participate in the litiga-l tion of Contentions 5 and 7.
As to Contention 5, which deals with the quantity and quality of cooling water for...,
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PVNGS, the Attorney General has prcvided no: it. formation nor made any allegation to the effect that any techn'ical exper U
_e tise will be brought to bear on this contention.
There fore',
this factor also weighs against the Attorney General.
Factor (iv) concerns the extent towhick the At-torney General's interest will be represented by existing parties.
Again, because the Attorney Geiteral has 'not estab-lished an interest in this proceeding, this factor also weighs against his participation.
. s Finally, as to factor (v), even though-the Attor-ney General indicates his willingness to take the proceed-ings as they stand, if he is admitted to the proceeding and is permitted to engage in discovery, the hearing in this proceeding might well occur later than it otherwise would if the Attorney General does not participate.
In summary, based on consideration of the factors in 10 CFR 5 2 714(r,),.
it is evident that there is no basis for this Board togexer-(
cise its discretion and allow the participation of the -New Mexico Attorney General.
,c As to 10 CFR $ 2.714(d), the' factors listed there are:
"(1)
The nature of the petitioner's
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right under the Act to be made a party-to the proceeding.
1 (2)
The nature and exte.nt of peti-tioner's property, financial, or other interest in the proceeding. }
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(3)
The possible effect 'of any
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' ' order which naay 'be entered in-sthe pro-r:
ceeding o7. th= petitioner's interest.?
An discus 1ed previously herein; the Attorney Gen-
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eral doe.s not have an automatic right'to participate in this
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.v proceedihg.
He hc.s yet to, esta$g an interest upon which n
to base his participation.- To the extent that the Attorney General has a'ttampted ' to relate the general interest of the '
public health and sar'ety of the residents of New Mexico to the Palo Vebde proceeding, it has already been noted that v,
the Attorney ; General's allegations are either outside the scope of thir proceeding or are too remote to warrant the _
-grant of his Amer.ded Motion.
Accordingly, 10 CFR 5 2.714(d) also weighs against the Attorney General.
WHEREFORE, doint Appiica.nts respectfully request
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that the Board deny the Motion to Amgnd by ' the New Mexice Attorliey General.
Should,the Board grant tlie ' Motion to Amend, Joint Applicants - request, based "on th'e discussion
, provided herein, that the Attorney. General's Amended Motion be denied.
Should the Attorney General be permitted to par-ticipate as a representative of an interested state, Joint Applicants request, based on the discussion set forth in Joint Applicants' October 2, 1981, answer to the Attorney
' General's original motion to participate, which discussion is incorporated hereinsby this reference,' that the Attorney General be require'd to (1), ta!e' the proceeding as he finds s
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it, and (2) he limited in his participation to the litiga-tion of Contentions 5 and 7 as admitted in this proceeding.
Respectfully submitted, c
i By Wlcw
$w Arthur C. GeJt Charles A. Bischoff 3100 Valley Bank Center Phoenix, Arizona 85073 Attorneys for Joint Applicants Dated:
November 18, 1981 l
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UNITED S'IATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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ARIZONA PUBLIC SERVICE
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DOCKET NOS. STN 50-528 COMPANY, et al.
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STN 50-529
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STN 50-530 (Palo Verde Nuclear Generating
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Station, Units 1, 2 and 3
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CERTIFICATE OF SERVICE I hereby certify that copies of " Joint Applicants' Response to New Mexico Attorney General's Motion for Leave to Amend Motion to Participate and Am. ended Motion" have been served upon the following listed persons by deposit in the United States mail, properly addressed and with postage prepaid, or, as indicated by an asterisk, by hand delivery, this 18th day of November, 1981.
Docketing and Service Section U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Chairman, Maricopa County Board of Supervisors 111 South Third Avenue Phoenix, Arizona 85004
- Dr.
Richard F. Cole Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Ms.
Patricia Lee Hourihan i
6413 S.
26th Street l
Phoenix, Arizona 85040
- Robert M.
Lazo, Esq.
Chairman, Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Dr.
Dixon Callahan Union Carbide Corporation P.O.
Box Y Oak Ridge, Tennessee 37830 Atomic Safety and Licensing Board Panel U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
- Henry J. McGurren, Esq.
Office of the Executive Legal Director U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
- Rand L. Greenfield Assistant Attorney General P.O. Drawer 1508 Santa Fe, New Mexico 87504 M
j Arthur C. Gehg/
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