ML20049A159
| ML20049A159 | |
| Person / Time | |
|---|---|
| Site: | Skagit |
| Issue date: | 03/07/1979 |
| From: | Little D, Thomsen F PERKINS, COIE (FORMERLY PERKINS, COIE, STONE, OLSEN |
| To: | |
| References | |
| NUDOCS 7903210251 | |
| Download: ML20049A159 (10) | |
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In the Matter of
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W PUGET SOUND POWER & LIGHT
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Docket Nos. 50-522 COMPANY, et al.,
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50-523
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(Skagit Nuclear Power Project )
Units 1 and 2)
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March 7, 1979
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APPLICANTS' ANSWER IN OPPOSITION TO PETITION FOR REVIEW OF INDIAN TRIBES DECISION OF WHICH REVIEW IS SOUGHT BY PETITIONERS The Upper Skagit Indian Tribe, Sauk-Suiattle Indian Tribe and Swinomish Tribal Community (Petitioners) filed a petition to intervene on June 13, 1978, three and one-half years after the deadline for filing such petitions had passed.
39 Fed. Reg. 44065 (December 20, 1974).
On November 24, 1978, the Atomic Safety and Licensing Board issued its decision and order granting the intervention.
LBP-78-38, 8 NRC (1978).
l Applicants appealed to the Atomic Safety and Licensing l
l Appeal Board on December 11, 1978, urging reversal of the I
Licensing Board's decision on the grounds that the Licensing Board virtually ignored the NRC regulation on l
untimely petitions to intervene (10 CFR 2.714 (a) ) and, in I
l addition, based its decision upon factors which were 1
erroneous as a matter of law.
Applicants further urged the Appeal Board to perform the balancing of factors required 790321D
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by 10 CFR 2.714 (a) which the Licensing Board had not done.
In an unpublished memorandum and order dated January 12, 1979, the Appeal Board vacated the Licensing Board's decision granting the petition to intervene and remanded the issue to the Licensing Board for further consideration.
A full explanation of the Appeal Board's reasons for the reversal and remand were set forth in its decision issued on January 29, 1979.
ALAB-523, NRC (1979).
The Appeal Board summarized the Licensing Board's decision quite concisely:
Although the Licensing Board discussed the intervention issue in terms that reflect the familiarity with Section 2.714, it ultimately rested its decision on another consideration:
Interesting as it may be to review the scope of the Commission's regulations on late filing of petitions to inter-vene, the precise issue is whether the Indians come within the broad scope of protection that the legislation and the Court decisions have accorded them.10/
The Board below went on to hold that the tribes' petition should be treated as though filed by the United States on their behalf and that, conse-quently, "the factors recited in the Commission's regulations for a late filed petition to intervene (should] yield to the pitblic interest which the government represents."11/
In other words, the Board's view on the "pr.eferential status" of the tribes controlled its consideration and disposi-tion of the intervent!.on petition.
10/ LBP-78-38, supra. 8 NRC at (slip opinion 11/ at 17).
Id. at 19-20.
ALAB-523, NRC (slip opinion at 5, 6). i
The reasoning of the Appeal Board which lead to its decision was that:
To be sure, the Licensing Board does touch upon the factors covered in Section 2.71412/
Nonetheless the Board leaves no doubt that those factors played at most a supporting role in the crafting of its opinion.
Taking that opinion as a whole, we are satisfied that the Board mis-directed its focus and, accordingly, failed to answer the right questions.
12/ Albeit, as the applicants point out, without specifically referring to that Section.
Id. (slip opinion at 7, 8).
Because the Appeal Board was unable to discern from the Licensing Board's decision the views of the Licensing Board on " precisely how the circumstances of the case fit in with the terms of the Commission's regulations", the case was remanded to the Licensing Board for proper con-sideration of the intervention petition pursuant to the factors set forth in 10 CFR 2.714 (a).
Memorandum and Order, dated January 12, 1979, p.
2 (footnote omitted).
In doing so, the Appeal Board made it quite clear that the status of Petitioners as Indians could be taken into account by the Licensing Board in evaluating the Petition to Intervene against the criteria regarding belated petitions.
Id.,
fn. 4; ALAB-523, NRC (slip
. opinion at fn. 16 and p. 13).
The present posture of the petition to intervene is that the Licensing Board is still considering the matter pursuant to the requirements of Section 2. 714 (a)...,
o On February 20, 1979, Petitioners submitted their petition for review of the Appeal Board's Memorandum and Order of January 12, 1979 and Decision of January 29, 1979.
RESPONSE TO PETITIONERS' STATEMENTS OF ERROR The first statement of error alleged by Petitioners is that the Appeal Board erred "in upsetting a proper and sound exercise by the Licensing Board of discretion vested in it by 10 CFR S 2.714 to rule upon untimely intervention petitions."
Petition for Review, p. 3.
This statement of error seriously mischaracterizes the Licensing Board's decision.
As shown quite plainly in the passages from the Licensing Board's decision which were quoted by the Appeal Board and are set forth earlier in this answer, the Licensing Board brushed aside the factors to be considered regarding untimely petitions pursuant to 10 CFR 2.714 (a) and treated those factors as yielding to the public interest represented by the government.
This was the holding of the Licensing Board, not merely dictum as Petitioners now claim.
As correctly perceived by the Appeal Board, the Licensing Board never reached the stage of making a proper Section 2.714 (a) determination.
- Hence, a remand was necessary.
Clearly, the Appeal Board did not in any way interfer with the discretion vested in the Licensing Board by. _ _
t Section 2.714.
That discretion, however, had to be exer-cised within the confines of Section 2.714 (a).
The Licensing Board had no discretion to permit untimely interventions based upon factors other than those set forth in Section 2.714(a).
Neither did it have discre-tion to found its decision on an erroneous reading of the law.
Where a Licensing Board fails to follow the govern-ing regulation and commits an error of law, the Appeal Board has no choice but to reverse the Licensing Board's decision.
The second statement of error alleged by Petitioners is that the Appeal Board failed "to acknowledge the Tribes' special status as beneficiaries of federally-protected treaty rights and the impact of that status."
Petition for Review, p.
3.
Petitioners do not, however, concisely explain how the Appeal Board failed to acknowledge their "special status".
If their point is that their status is to be taken into account in considering the factors to be balanced under Section 2.714 (a), no possible error could have been committed because the Appeal Board l
specifically instructed the Licensing Board on remand to 1
consider the Tribes' status.
ALAB-523, NRC (slip opinion at fn. 16 and p. 13).
The only other apparent interpretation of Petitioners' second statement of error is that, due to their status, they have a special right to intervene belatedly which is independent of the
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requirements of Section 2. 714 (a).
While this was the position of the Licensing Board, it was not the position of Petitioners who on several occasions agreed that inter-vention could be granted only within the scope of Sectice 2.714.1/
Because the "special right to intervene" argument was not raised by Petitioners before the Appeal PSard, Petitioners cannot now rely upon it (if in fact they do) to justify their Petition for Review. 10 CFR 2.78 6 (b) (2) (ii).
WHY THE COMMISSION SHOULD NOT EXERCISE REVIEW Petitioners urge the Commission to exercise review on three grounds.
First, they state that an important procedural issue is raised because the Appeal Board allegedly rejected the Licensing Board's exercise of dis-cretion in ruling upon the late intervention petition
" based on mere disagreement with the statements of [the]
Licensing Board made in addition to its 52.714 (a) deter-mination and not based on any finding of abuse of dis-cretion with respect to the S2.714 (a) factors."
Petition for Review, p.
6.
However, as the Appeal Board concluded and as the Licensing Board expressly indicated, the Licensing Board's decision was clearly based upon an 1/ See Petitioners' Brief in Support of Petition to Inter-Vene, dated June 13, 1978, pp. 39-40; Petitioners' Reply Brief to the Answers of NRC Staff and Applicant, Sep-tember 5, 1978, p.
21; Petitioners' Brief in Opposition to Applicants' Appeal, dated December 26, 1978, p.
- 21. -
interpretation of law outside of and unrelated to the factors of Section 2.714(a).
Hence, the Licensing Board did not even reach the point of exercising the discretion it had under Section 2.714 (a).
It is clear, therefore, that the Appeal Board made no review of the Licensing Board's exercise of discretion and that the first pro-cedural issue relied on by Petitioners simply is not present in this proceeding.
Second, Petitioners alleged that their status raises the important procedural issue of "in what respects is the status of tribes different from other persons with standing to intervene?".
Id.
Of course, Petitioners' standing to intervene has not at any time been an issue in this case.
ALAB-523, NRC (slip opinion at 3).
While the role of Petitioners' purported status was addressed above, it bears repeating that the Appeal Board specifically directed the Licensing Board to con-sider Petitioners' status to whatever extent it legitimately comes into play in applying the criteria of Section 2.714 (a).
Id. (slip opinion at 13).
Thus, the second procedural issue relied on by Petitioners is not present here either.
Finally, Petitioners claim that an important ques-tion of public policy is raised by the risk that they "may be unable to participate in the proceeding."
Petition for review, pp.
6, 7.
This risk, of course, attaches to any petitioner who seeks to intervene in an untimely fashion.
We see no reason for singling out Petitioners from other potential intervenors.
Should Petitioners be granted review by the Commission on this rationale, every losing untimely petitioner would be entitled to Commission review.
In sum, Petitioners have failed to sustain their burden of justifying that review should be granted.
Accordingly, their petition for review should be denied.
DATED:
March 7, 1979.
Respectfully submitted, PERKINS, COIE, STONE, OLSEN & WILLIAMS By 4
4
- m F. Theodore Thomsen L
By Ddyglas/S. Little Of Counsel:
Lowenstein, Newman, Reis Axelrad & Toll 1025 Connecticut Avenue, N.W.
Washington, D.
C.
20036 -
s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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)
PUGET SOUND POWER & LIGHT COMPANY,)
DOCKET NOS.
et al.
)
)
50-522 (Skagit Nuclear Power Project,
)
50-523 Units 1 and 2)
)
)
CERTIFICATE OF SERVICE I hereby certify that the following:
APPLICANTS' ANSWER IN OPPOSITION TO PETITION FOR REVIEW OF INDIAN TRIBES in the above-captioned proceeding have been served upon the persons shown on the attached list by depositing copies thereof in the United States mail on March 7, 1979 with proper postage affixed for first class mail.
DATED:
March 7, 1979.
L Dogs Little Ccunsel r[or Puget Sound Power &
l Light Company l
1900 Washington Building l
Seattle, Washington 98101 i
l l
i i
Datm March 7, 1979
., 4 JValentine B. Deale, Chairman Nicholas D.
Lewis, Chairman Atomic Safety and Licensing Board Energy Facility'3ite Evaluation 1001 Connecticut Avenue, N.W.
Council Washington, D.C.
20036 820 East Fifth Avenue Olympia, WA 98504 Dr. Frank F. Hooper, Member Atomic Safety and Licensing Board Robe'rt C.
Schofield, Director School of Natural Resources Skagit County Planning Department University of Michigan 120 West Kincaid Street Ann Arbor, MI 48109 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 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 Commission Vice-Consul Washington, D.
C.
20555 412 Plaza 600 (original and 20 copies) 6th and Stewart Street Seattle, WA 98101 Richard L.
Black, Esq.
Counsel for NRC Staff Donald S. Means U.S.
Nuclear Regulatory Commission Box 277 Office of the Executive Legal La Conner, WA 98257 Director l
Washington, D.C.
20555 Richard D.
Bach, Esq.
Rives, Bonyhadi, Drummond & Smith Roger M.
Leed, Esq.
1400 Public Service Building 1411 Fourth Ave. Bldg. #610 920 S.W.
6th Avenue
- Seattle, WA 98101 Portland, OR 97204 j
Russell W.
Busch, Esq.
Thomas F. Carr, Esq.
Evergreen Legal Services Assistant Attorney General 520 Smith Tower Temple of Justice 506 Second Avenue Olympia, WA 98504 Seattle, WA 98104 2/16/79