ML20052G960
| ML20052G960 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 05/14/1982 |
| From: | Bernabei L HARMON & WEISS, HOURIHAN, P. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20052G961 | List: |
| References | |
| NUDOCS 8205190188 | |
| Download: ML20052G960 (7) | |
Text
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UNITED STATI'S OF AMER ICA 0 ' h :: q -
NUCLEAR REGULATORY COMMISSION i
I7 Mj G8 BEFORE Tile ATOMIC SAFETY AND L1CI:NSING BOARD L~~
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In t he Matter of
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ARIZONA PUBLIC SERVICE COMPANY, et al.
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Docket Nos. STN 50-528
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STN 50-529 (Palo Verde Nuclear Generating
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STN 50-530 Station, Units 1, 2 and 3)
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MOTION TO RECONSIDER BOARD 'S RULING OF APRIL 27, 1982 AS TO TiiE INADMISSIBILITY OF TiiE EFFECTS OF THE CLAIMS OF Tile PIMA-MARICOPA INDI AN COMMUNITY ON APPLICANTS ' SOURCE OF WATER AND THE LEGALITY OF APPLICANTS ' CONTRACT FOR EFFLUENT Intervenor Patricia Lee liour ih an respectfully moves this Licensing Boar d to reco nsider i ts r uling that claims of the P ima-Mar i co pa Indian Community to Appl i can ts ' intended source of water fo r Palo Verde may not be considered in this proceeding.
NEP A, as confirmed by a ecent decision of the United States Court of Appe als for the District of Columbia, forbids this Ibard from foreclosing in its NEPA analysis consideration of s ig n i fic an t uncertainties about an assurect suppl y of water for P alo Verde.
I.
Background
On January 19, 1982, the P ima-Mar i copa I nd i an Community filed suit against the Depar tment of the Interior ano the Secre-tar y o f the Interior asking that the Secretary be ordered to carry out his duties under the federal reclamation laws to ensure that the Indian Community's prior and superior elaims to reclamation project waters be..atisfied.
The NRC stall bro ug h t the suit and its AhK 0500052s
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2 subsequent transfer t o Arizona feder.il district co u r t.
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Board 's notice. 'Intervenor moved to post pone the licensing hearing on the ground that further investigation was required of the Indians' claims and their possible ef fect on an assured supply of water for Palo Verde.
Intervenor argued that if the court were t> grant the Indian Community's requested relief, the Secretary would be forced to exercise his power over all reclamation waters, including return flow and effluent, to satisty these claims.
Therefore, the Applican ts ' contract for effluent seriously threatened by the Indians' to serve as cooling water was lawsuit and the superior claim to this effluent.
The Boar d, in its order of April 13, 1982, denied Inter-venor's motion to postpone the hearing and indicated that it was pre-disposed not to consider evidence about the possible illeg ality of Appl ic an ts ' contract for effluent.
The issue of the city of J
Phoenix 's leg al r ig h t to sell effluent for use outside the Salt River Project ( "3 R P " ) boundar ies and the Indians' claim to that wat er was,the Board wrote, curr en tl y the " subject of litigation "
f and at the mc men t a "spe cul a ti ve and conjectural" issue.
Philip Shea, attorney for the Indian Community, testified in his limited appearance before this Board on April 27, 1982, that he believed if his clients prevailed in their lawsuit, the Secre tary of the Interior would be forced to exercise his contr ol over the effluent for which Joint Applicants have contractea and use it to satisfy the prior and superior claims of the Indians for water.
He also cited a litigation report of February 25, 1980, of
3 the Solicitor of the Department of Interior which questioned the legality of transporting ef fluent out of SRP boundaries for use at Palo Verde, in l ig h t of the Secretary's " overriding tr us t responsibilities to determine whether that water can be used directly or by means of exchanges to meet the unf ulfilled water rights of Ind ian tribes in the Salt and Verde R iver water sheds. "
Tr. at 172.
II.
NEP A Requires This Board To Consider The Claims of The Pima-Maricopa Indian Community To The Very supply Of Water Applic an ts Have Contracted To Use At Palo Ver de.
On April 27, 1982, the United States Court of Appeals for the Dis t ric t of Columbia, held that the NRC's Table S -3 * /
violates the National Environmental Policy Act ( "N EP A" ) because it fails to allow for consideration of uncertainties underlying the assumption that no radiological effluents will be released into the biosphere once wastes are sealed in a permanent repository.
NRDC v. NRC, Nos. 77-1148, 79-2110 and 79-2131 (D.C. Cir. April 27, 1982), slip 02. at 34.
In an extensive analysis of the NEPA balancing process, t.he Court found that the NRC 's S-3 Table con tained no entry for the long -term e f fects of solid hig h-level and transuranic wastes.
The Court further found in this omission that the Commission had foreclosed the licensing boards' considera-tion of the risk that permanen t was te managemen t f acilit les would not be developed or the risk that they would not perform as intended.
Slip O_p. at'27.
- fT abl e S -3 Rules -- the orig in a l, interim and final versions--
provide a set of numerical values intended to reflect the en-vironmental effects of the uranium fule cycle.
4 Section 102(C) of NEPA, 42 USC 94332(C), requires, however, that among the environmental costu an aqency must consider is the human uncertain ty about the character of random and non-random phenomenona.
In dealing with "uncert ain " environmental effects, an agency must trace each "reasonabl y foreseeable con ti ng ency, " I d. at 3 7, n. 101, and reveal what it does not know about the uncertain risks.
Id. at 38.
It has long been the law that NEPA imposes an affirmative obligation c.a agencies to seek information about the environ-mental consequences of proposed action since "in formed predic tion is possible only af ter an agency has conduc ted a thorough inquiry into all aspects of a project." Alaska v.
Andrus, 580 F.2 d 465, 473 (D.C. Cir. 1978), vacated, in par t, sub nom.
Western Oil & G as Asso c. v. Alask a, 439 U.S. 9 22 (1978).
" Reasonable forecasting and speculat ion " is cleat ly a par L of an agency's NEPA responsibilities.
Scientists' Institute for Public Information, Inc.
v.
AEC, 481 F.2 d 1079, 1092 (D.C. Cir. 1973),
since "the basic rbrust of an agency '.. r esponsi bi 1 ities unoer NEP A is to pr eC ic t the environmental effects of a proposed action before the action is taken and those ef fects f ully known. "
Consideration of "uncer tain " ef fec ts is the only way an agency may effectively con sider al terna t ives to its actions "to the fullest extent possible under its other statutory obligations. "
Calvert Cliffs' Coord in at ing Committee, Inc.
v.
AEC, 449 F. 2d 1109, 1128 (D.C. Cir. 1971-In this case the Board, to fully comply with its responsi-bilities under NEPA, must examine all uncer ta i.n ties concerning Appl i c an t.3 ' contract for effluent, including the most r ig nif ican t one
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5 that the contract may be inval id a t.ed.
Emergi ng from the testimony of John Schaper, attorney for the Buck ey e Irrigat ion District and the limited appearance testimony of Mr. Shea and Mr. Bill Stephens, is the undisputed fact that ownership riqhts and beneficial use rights over effluent is an unsettled l eg a l question in the Salt River Vall ey.
The Solicitor of t he Interior has admitted his grave doubt that Appl ic an ts ' contract can withstand j udic al scrutiny in light of the Secretary's responsibilities to ensure the leg al use of reclamation waters.
And the Pima-Maricopa Ind ian Community has stated a strong case that the court should order the Secretary of the In ter ic t to comply with the statutory re-spon s ibilities his Solicitor has clearly outlined.
Ther e fo re, un-cer tainty about the validity of Appl ican ts ' contract for effluent and rights to the effluent for which Applicants have contracted must be included in any NEP A determination about th" likelihood of an assured supply of water for Palo Verde.
Even the Appli can ts ' own witnesses have testified to the im-portance of water rights, water con tacts, and lawsuits to their assured supply of water for Palo Verde or any other water user in the Sal t River Valley.
Ther e f ore, in light of the clear and inescapable ruling of the District of Columbia Circuit that licensing boards, in their NEP A analysis, must consider uncer ta in ties, including risks due to human uncer tainty over the calculation of random and nonrandom e
pheon omen a, slip of. at 36, this Board cannot now fo reclose testimony and consideration of the I nd i a n s ' claims for SRP reclamation water, including ef fluen t, and the possible illegality of the Appli c an ts '
con tr ac t for that effluent.
6 Intervenor has included a proffer in her letter of May 14, 1982, of Mr. Shea's testimony on the issue of the Indian Community lawsuit, the Secretary of the Interior 's responsibilities under the re-clamation laws, and the likely adverse effect of the Indian Community's lawsuit on an assured supply of water for Palo Verde.
Respectfully submitted, I,y n ne Bernabei llarmon & Weiss 1725 I Stree t N.W.
Suite 506 Washing ton, D.C. 20006 (202)833-9070 DATED:
May 14, 1982 i
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