ML20050C303
| ML20050C303 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 04/06/1982 |
| From: | Dewey L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8204080387 | |
| Download: ML20050C303 (9) | |
Text
.
04/06/82 UNITED STATES OF AMERICA N
NUCLEAR REC'lLATORY COMf11SSION 4
S ggc~ EPKU 9
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD D
APR 07198270 awsmenncCA In the flatter of
)
g g.raingscu 1~-
//
)
ARIZONA PUBLIC SERVICE
)
Docket Nos. STN 50-(
('
)
STN 50-52.
a
)
STN 50-530 (Palo Verde Nuclear Generating
)
Station, Units 1, 2 and 3)
)
NRC STAFF'S ANSWER TO INTERVENOR'S MOTION TO DEFER ISSUANCE OF NOTICE OF HEARING I.
INTRODUCTION By notion dated March 22, 1982, Patricia Lee Hourihan (Intervenor) requests that the Board defer issuing a notice of a hearing date in this proceeding.1/ Intervenor's basis for deferring the hearing is the claim that there have been several recent disclosures pertinent to Contention 5, the only remaining contention in this proceeding.2I This contention provides:
-1/
Intervenor's motion for a deferral of hearing notice is made after the fact since the Licensing Board's Order of March 19, 1982 has already set April 27, 1982 as the date on which hearings will be commenced for the Palo Verde proceeding.
In order to expedite matters, Staff will treat Intervenor's request as a motion for deferral of the hearings.
-2/
In its March 17, 1982 Order, the Board granted summary disposition on Contention 6B dealing with measures to mitigate a postulated ATWS event and Contention 7 involving financial qualifications and the proper computation of decommissioning costs. The only other remaining contention in the Palo Verde OL proceedino was Contention 5.
ArizonaPublicServiceCo.,etal.,(PaloVerde Nuclear Generating Station, Units 1, 2, and 3), Memorandum and Order, Slip Opinion pp. 4-11 (March 17, 1982).
DESIGNATED ORIGINAL 8204080387 820406 Certified By
/A PDR ADOCK 05000528 1
Q PDR 68d7
Applicants will not have an assured supply of useable treated municipal effluent for cooling purposes for Unit 3 of the Palo Verde Nuclear Generating Station (PVNGS) during months of peak reactor need for the first five years of operation.
The disclosures referred to by the Intervenor as a basis for post-poning the hearing involves an allegation that the contract for cooling water for the Palo Verde facility is presently being renegotiated and the existence of a civil suit filed January 18, 1982 by the Salt River Pina-Maricopa Indian Community against the United States and James Watt, Secretary of the Interior, in whic' the Indian Community contends, r
inter alia, that it has a claim to the effluent to be used for cooling water for Palo Verde.3_/ For the reasons set forth herein, Staff does not believe that the hearing presently scheduled to commence on April 27, 1982 should be postponed.
II.
DISCUSSION A.
Intervenor's Failure to Act Should Preclude It From Receiving Its Request for A Deferral of the Hearing Intervenor Hourihan should be precluded from attempting to change the schedule at this late date since the matters raised by the Intervenor as a basis for delaying the hearing are subjects which should have been raised during the March 15, 1982 conference call between Judge Lazo and the parties when the April 27, 1982 hearing date was set.
At that tine she could have argued for an extended hearing date, but she elected not to participate in the conference call. At the time of the call she was
-3/
The complaint does not actually specifically refer to the Palo Verde facility. However, there can be doubt that Palo Verde is being referred to since the recipient of the effluent is described as an atomic power plant located fif ty miles from the water project boundaries.
i aware of the contract renegotiation since on February 17, 1982 Judge Lazo had sent the parties a copy of the Water Users Association's letter re-garding this matter. Also, in regard to the Pima-Maricopa Indian community lawsuit, by her own admission this suit was publicized in the Phoenix area in the Mesa Tribune on January 19, 1982.
(See Intervenor's Motion,
- p. 2).
As stated in Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 251 (1974):
"A party may not be heard to complain that its rights were unjustly abridged after
'[h]aving purposely refused to participate.'
[ citations omitted.]"
Further "..
, intervention in an NRC adjudicatory proceeding does not carry with it a license to step into and out of consideration of a particular issue at will." Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-288, 2 NRC 390, 393 (1975); accord, Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 269 (1978).
Intervenor Hourihan cannot complain of a date set for hearing in a conference in which she elected not to participate.
It should further be noted that the Intervenor has already delayed this proceeding by reque. sting substantial extensions of time for filing responses to summary disposition motions and then not responding to those notions after receiving the requested extensions. These extensions were responsible for the hearing date being set back from March 29, 1982 to April 27, 1982.
(See Licensing Board's Memoranda of March 3 and March 17, 1982).
It is well established that a litigant must be diligent in meeting its Aligations in regard to NRC proceedings. Cf. Northern States Power Co.
(Prairie. island Nuclear Generating Plant, Unit 'I and 2), ALAB-288, 2 NRC
390, 393 (1975).
Status of a party in an NRC proceeding affords certain rights, but it also involves certain obligations. Offshore Power Systems (Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813, 816 (1975).
Moreover, parties to NRC proceedings may not merely disregard prescribed time limits. As stated in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-474, 7 NRC 746, 748 (1978):
The orderly functioning of the administrative process scarcely would be furthered were we to allow parties to our proceedings simply to ignore prescribed time limits whenever it suited their convenience to do so. We therefore must insist that those limits be honored. This is true even if, as here, the party happens to be represented by a nonlawyer.
In some respects, we do relax our rules to accommodate the fact that party may not have the benefit of counsel. See Detroit Edison Com)any (Enrico Fermi Atomic Power Plant, Unit 2),
ALA3-469, 7 NRC 470, 471 ( April 26,1978), and cases there cited. But no good reason exists why a double standard should obtain insofar as observance of deadlines is concerned. A nonlawyer has no less capability than does a member of the Bar to apprehend when a document is due for filing)(particularly if he has been exaressly so informed and then to act accordingly.
footnote omitted]
See also Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-488, 8 NRC 187, 190-191 (1978). The times set by the Boards should be maintained. See NRC " Statement of Policy on Conduct of Licensing Proceedings," 46 Fed. RS. 28533, 28534, 13 NRC 452, 454 (1981).
B.
The Contract Renegotiation Between The Water Association And The Applicant is Not A Reason To Delay The Hearing The contract renegociations do not provide a reason to delay the present hearing schedule. This matter can be fully aired at the April 27,1980 hearing since the Water Association has advised that it will be making a limited appearance to explain its position at the OL hearing and that it would be willing to furnish all r.ecessary
backgroundmaterial.b/
In addition, it is expected that the Applicant can provide supplemental inforriation regarding this issue during these sessions if necessary. At that time the Licensing Board will, of course, have the opportunity to ask questions to apprise itself of all necessary facts.
It should further be notEd that in the Water Users Association letters to the Board it has not been claimed the Association has a unilateral right to reduce the effluent to be supplied for the PVNGS units. Although the contract between the Association and the Applicant is being renegotiated, it does not now appear that the amount of effluent to be supplied to the PVNGS can be reduced without the Applicant's concurrence. The Board may wish to explore this matter further.
Under these circumstances, a possible delay in the licensing of the Palo Verde facility by postponing the hearing date would be unjustified.
C.
The Pima-flaricopa Indian Community Lawsuit Is Not Reason To Delay The Hearing The NRC will not delay licensing proceedings or withhold licensing approval merely because some other agency or tribunal might conceivably take action which may later impact upon the operation of a nuclear facility. As the Commission stated in Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-14, 7 NRC 952, 958 at fn.5 (1978):
-4/
Arizona Municipal Water Users Association letter to Judge Lazo of March 16, 1982.
. \\
.... this agency possesses discretionary authority to determine whether, based on the factual circumstances presented, another governmental body's action (or lack thereof) warrants this agency's suspending or leaving in place existing approvals or proceedings.
(emphasisadded)
Also, in Wisconsin Electric Power Co. (Koshkonong Nuclear Plant, Units 1 and 2), CLI-74-45, 8 AEC 928, 930 (1978), the Commission expressed similar sentiments when it stated:5_/
As a general rule it is the practice of the Commission to pursue its administrative procedures while other state and local proceedings are under way.
Such a practice is hardly a waste of time; on the contrary, it is the efficient, economical and expeditious course.
This Agency, of course, will take cognizance of activities before other tribunals when the facts so warrant. Thus, in Seabrook the Commission decided that since EPA was at that tine considering forcing the Applicant to construct cooling towers, the NRC's NEPA analysis must cover that possibility.b/ However, in that case the actions contemplated by the other agency could be expected to take place in the near future.
-5/
See also the Appeal Board's statement in Southern California -
Edison Co., (San Onofre Nuclear Generating Station, Units 2 and 3),
ALAB-171, 7 AEC 37, 39 (1974) regarding this issue:
And we can readily agree that it would be pro-ductive of little more than untoward delay were each regulatory agency to stay its hand simply because of the contingency that one of the others might eventually choose to withhold a necessary permit or approval.
6/
Public Service Company of New Hampshire, supra, at 957-958.
Further, the NRC could have reasonably anticipated the results of the other agency's action and how the nuclear units might be affected.
The situation involving the Pima-Maricopa Indian Connunity lawsuit can be distinguished from the situation in Seabrook since the outcome for this lawsuit would appear to be purely speculative with no way of accurately predicting the affect upon the Palo Verde units.
In this regard, even if the Indian tribe is successful with respect to all of its clains, the Applicant still might not be deprived of effluent for Palo Verde.
In addition, unlike the situation in Seabrook the time frames for this lawsuit are completely conjectural since there is a good pos-sibility that many years will be spent in pre-trial, trial and appellate proceedings for this case.
Moreover, in regards to the possibility of future adverse con-tingencies, it has been held that where a present entitlement or permit exists, licensing will not be withheld on the basis that it may later be revoked or modified.
See, e.g.:
Public Service Co. of New Hampshire (Seebrook Station, Units 1 & ?), CLI-77-8, 5 NRC 503, 509-510.
Under these circumstances, the NRC should not subordinate its licensing process to matters so speculative and conjectural.
If at some later date it becomes apparent that the effluent supply for the Pale Verde facility may become jeopardized, this Agency can then take appropriate action.
There is eccordinaly no merit to Intervenor's request to postpone the presently scheduled hearing in order to pursue this issue.
i I '
a III. CONCLUSION For the above stated reasons, Intervenor's request to postpone the April 27, 1982 Operating Licensing hearing for the Palo Verde nuclear units should be denied, s
Respectfully submitted, Lee Scott Dewey Counsel for NRC Staff a
Dated at Bethesda, Maryland this 6th day of April, 1982.
i I
i t
)
}
I i
l f
e -
-y
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Hatter of
)
)
ARIZONA PUBLIC SERVICE
)
Docket Nos. STN 50-528 COMPANY, ET AL.
)
STN 50-529
)
STN 50-530 (Palo Verde Nuclear Generatinn
)
Station, Units 1, 2 and 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER TO INTERVENOR'S MOTION TO DEFER ISSUANCE OF NOTICE OF HEARING" 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 Comission's internal mail system, this 6th day of April, 1982:
Robert M. Lazo, Esq., Chairman
- Administrative Judge Ms. Lee Hourihan Atomic Safety and Licensing Board 6413 S. 26th Street U.S. Nuclear Regulatory Comission Phoenix, AZ 85040 Washington, DC 20555 Atomic Safety and Licensing Dr. Richard F. Cole
- Board Panel
- Administrative Judge U.S. Nuclear Regulatory Comission Atonic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Atomic Safety and Licensing Dr. Dixon Callihan Appeal Board
- Administrative Judge U.S. Nuclear Regulatory Comission Union Carbide Corporation Washington, DC 20555 P.O. Box Y Oak Ridge, TN 37830 Docketing and Service Section*
Arthur C. Gehr, Esq.
Office of the Secretary Charles Bischoff, Esq.
U.S. Nuclear Regulatory Comission Snell & Wilner Washington, DC 20555 3100 Valley Center Phoenix, AZ 85073 Rand L. Greenfield Assistant Attorney General
_,4 P.O. Drawer 1508 J2t
_ __u
- 11M, Santa Fe, New Mexico 87504-1508 L'ee Scott Dewef
/'
Counsel for NRC Staff
\\
i