ML20053A721
| ML20053A721 | |
| Person / Time | |
|---|---|
| Site: | Skagit |
| Issue date: | 05/25/1982 |
| From: | Black R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8205270189 | |
| Download: ML20053A721 (29) | |
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05/25/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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PUGET SOUND POWER & LIGHT
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Docket Nos. STN 50-522 COMPANY, ET AL.
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STN 50-523
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Skagit/Hanford Nuclear Power
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Project, Units 1 and 2)
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NRC STAFF RESPONSE TO U!iTIMELY PETITIONS TO INTERVENE FILED BY THE COLUMBIA RIVER INTER-TRIBAL FISH COMMISSION AND THE YAKIMA INDIAN NATION I.
INTRODUCTION On February 5,1982, the U.S. Nuclear Regulatory Comission (NRC) published in the Federal Register (47 Fed. Reg. 5554) a notice of opportunity for a hearing on the amended application for construction permits for the Skagit/Hanford Nuclear Project (S/HNP) to be located in the Department of Energy's Hanford Reservation in Benton County, Washington. That notice established March 1, 1982 as the deadline for filing requests for a hearing and petitions for leave to intervene.
On May 5,1982, the Columbia River Inter-Tribal Fish Comission 1
(CRITFC) filed an untimely petition to intervene and a supplement setting forth a list of contentions and their bases.
In addition, on May 10, 1982, the Yakima Indian Nation filed an untimely petition to intervene.
Accordingly, these petitions must not only satisfy the requisite
" interest" and " specific aspects" requirements of 10 C.F.R.
DESIGNATED ORIGINiil 9 8205 27 0 lM [
Certified By1 g g f'
sD
e 1.
$ 2.714(a)(2), but also must be measured against the standards that apply for late intervention as set forth in 10 C.F.R. 5 2.714(a)(1).
The NRC Staff response to these petitions will be set forth below.
As discussed below, we believe that both petitions have established the necessary " interest" and " specific aspects" to be allowed to intervene as of right. With respect to the late intervention factors, we have concluded that neither petitioner has adequately demonstrated good cause for their untimely filings. However, a weighing of the other factors set forth in 10 C.F.R. Q 2.714(a)(1) is in favor of granting the late-filed intervention. CRITFC has also submitted a supplement to its petition to intervene pursuant to 10 C.F.R. 5 2.714(b) listing the contentions which it seeks to litigate in this proceeding, and the bases for each contention. The Staff response to these contentions will be set forth in Section III.A.4., infra. The Yakima Indian Nation, on the other hand, has not filed a supplement to its petition setting forth the contentionsitseekstolitigate.3/ Since specific contentions must be pleaded pursuant to 10 C.F.R. 5 2.714(b), the Staff would not oppose the Board's granting of additional time (e.g. an additional fifteen (15) days) to file the supplement listing the contentions.
Finally, the NRC Staff would note that the Yakima Indian Nation is one of the four Columbia River tribal governments whose fish and wildlife committees compose the Columbia River Inter-Tribal Fish Commission.
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The Yakima Indian Nation has listed thirteen (13) specific aspects of the proceeding as to which it seeks intervention. The Staff has not construed these aspects as specific contentions required by 10 C.F.R. 6 2.714(b).
In any event, these aspects lack basis and specificity and, therefore, should be rejected as contentions.
O,
(CRITFC Petition, p. 1.)
In addition, many of the aspects of the proceeding on which intervention is sought by the Yakima Indian Nation, are identical to those advanced by CRITFC and that these petitioning groups have substantially the same interests to protect. Accordingly, it is apparent that consolidation of the Yakima Indian Nation with CRITFC pursuant to 10 C.F.R. % 2.715a may serve the interest of the orderly and expeditious conduct of this hearing. At this time, the Staff would only note that consolidation of these petitioning groups (and, perhaps, other parties as well) may be practical and necessary in this proceeding.
However, a final determination on consolidation should await the Board's final ruling on contentions.
II. DISCUSSION A.
Requirements for Intervention 1.
Petitioners Must Meet the Interest Requirements of 10 C.F.R. Q 2.714 The Comission's regulations require that a petitioner for leave to intervene submit a written petition setting forth with particularity the i
petitioner's interest in the proceeding and how that interest may be affected by the results of the proceeding, including the reasons why the l
petitioner should be permitted to intervene.
10 C.F.R. Q 2.714(a)(2).
This section also requires the petition to make particular reference to the factors in 10 C.F.R. % 2.714(d) which are as follows:
1)
The nature of the Petitioner's interest under the Atomic i
I Energy Act, 1
i
. 2)
The nature of his property, financial or other interest in the proceeding, and 3)
The possible effect of an order in this proceeding on Petitioner's interest.
In determining whether the foregoing requirements have been satisfied, the Commission has ruled that contemporaneous judicial concepts of standing should be applied in NRC licensing proceedings.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 &
2), CLI-76-27, 4 NRC 610, 613-14 (1976). These concepts require a showing that the action being challenged could cause injury in fact _/
2 to the person seeking standing, and that such injury is arguably within the
" zone of interest" protected by the Atomic Energy Act or the National Environmental Policy Act. M. See also, Warth v. Seldin, 422 U.S. 490 (1975); Sierra Club v. Morton, 405 U.S. 727 (1972); Association of Data Processing Service Organizations v. Camp, 397 U.S.150,153 (1970). The Appeal Board has ruled that the geographical proximity of a petitioner's residence coupled with an explicit identification of the alleged aggrievance is sufficient to satisfy the interest requirements of 2/
" Abstract concerns" or a " mere academic interest" in the matter which are not accompanied by some real impact of a petitioner will not confer standing.
In the Matter of Ten Applications for Low-Enriched Uranium Exports to EURATOM Member Nations, CLI-77-24, 6 NRC 525, 531 (1977); Pebble Spring, CLI-76-27, supra, at 613. Rather, the asserted harm must have some particular eff ect on petitioner, Ten Applications, CLI-77-24, supra, and a petitioner must have some direct stake in the outcome of the proceeding. See Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station),
ALAB-328, 3 NRC 420, 422 (1976).
. 10 C.F.R. 5 2.714. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 393 (1979); Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979). Though no firm outer boundary for this geographic " zone of interest" has been determined, distances of up to 50 miles have been accepted by the Appeal Board as being not so great as to necessarily preclude standing upon particular petitioners. See eg., Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 n.4 (1977). H. Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-146, 6 AEC 631, 633-34 (1973); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 190, 193, aff'd, CLI-73-12, 6 AEC 241 (1973), reconsid. den. ALAB-110, 6 AEC 247.
An organization may gain standing to intervene based on injury to itself. Ten Applications, CLI-77-24, supra, at 531.
If the organization seeks standing on its own behalf, it must establish that it will be injured and that the injury is not a generalized grievance shared in substantially equal measure by all or a large class of citizens.
I d_.
On the other hand, an organization can establish standing through members of the organization who have interests which may be affected by the outcome of the proceeding.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 NRC 328, 330 (1976). At the same time, when an organization claims that its standing is based on the interests of its members, the organization must identify specific individual members whose interests might be affected by the proposed action, describe how the interests of each of those members might be
i affected and give some concrete indication that such members wish to have their interest represented in the proceeding. Houston Lighting and Power Cat. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC '
377, 396 and 397 (1979); Barnwell, ALAB-328, supra at 422-423; Public Service Electric & Gas Company (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 488-89 (1973); Duquesne Light Company (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 244 n.2 (1973).
Further, under Section 2.713 of the Commission's Rules of Practice, a " partnership, corporation or unincorporated association may be represented by a duly authorized member or officer, or by an attorney-at-law."
10 C.F.R. 5 2.713(b) (emphasis added). Thus, where an organization is represented by one of its members, the member must demonstrate authorization by that organization to represent it. This demonstration is normally required to be made in the written notice of' appearance.I Finally, groups may not represent persons other than their own J
members, and individuals may not assert the interest of other persons.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
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10 C.F.R. 5 2.713 provides, in part:
Any person appearing in a representative capacity shall file with the Commission a written notice of appearance which shall state his or her name, address, and telephone number; the name and address of the person on whose behalf he or she appears; and, in the case of an attorney-at-law, the basis of his or her eligibility as a representative or, in the case of another representative, the basis of his or her authority to act on behalf of the party.
O LBP-77-11, 5 NRC 481, 483 (1977); Watts Bar, ALAB-413, supra at 1421; Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit No. 2),
ALAB-470, 7 NRC 473, 474, n.1 (1978). There is, under the Atonic Energy Act and the Commission's regulations, no provision for private attorney generals. Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), ALAB-333, 3 NRC 804, n.6 (1976); Shoreham, LBP-77-11, supra, at 483.
2.
Petitioners Must Meet the " Aspect" Requirements of 10 C.F.R. 6 2.714 In addition to demonstrating " interest," a petitioner must set forth "the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene." 10 C.F.R.
Q2.714(a)(2).S/ While there is little (
.s.e in NRC case law as to s
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10 C.F.R. Q 2.714(b) requires the petitioner to file "... a supplement to his petition to intervene which must include a list of the contentions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity." This section further provides:
"A petitioner who fails to file such a sunnlement which satisfies the requirements of this paragraph with respect to at least one contention will not be permitted to participate as a party."
As indicated earlier, CRITFC has filed a supplenent setting forth its contentions and the Staff will respond to these contentions.
However, the Yakima Indian Nation has not filed its contention supplement but we believe the Board should grant them an additional reasonable time to do so. We will respond to these contentions after their receipt. Accordingly, nothing said by the Staff regarding a petitioner's " aspects" is intended to apply to satisfaction of the 10 C.F.R. 5 2.714(b) contention requirements.
I re-
the meaning of " aspect" as the term is used in 10 C.F.R. 9 2.714, it appears that a petitioner may satisfy this requirement by identifying potential effects of the licensing action or areas of concern which are within the scope of matters that may be considered in the proceeding.
See North Anna, ALAB-146, supra at 633; Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), Licensing Board " Memorandum and Order Ruling on Petitions and Setting Special Prehearing Conference,"
dated September 21, 1979, slip op. at 6 (unpublished Order).
III. NRC STAFF RESPONSE TO PETITIONS FOR LEAVE TO INTERVENE A.
CRITFC 1.
Interest On May 5, 1982, CR:TFC filed a petition to intervene through its Executive Director, S. Timothy Wapato. CRITFC consists of the fish and wildlife committees of four Columbia River tribal governments. Although not explicitly stated, the Staff presumes the purpose of CRITFC is to assist the member tribal governments in preserving, protecting, and enhancing the anadromous fish populations of the Columbia River basin and to help ensure that treaty fishing rights are protected. CRITFC asserts, inter alia, that:
" Construction and operation of the Skagit/Hanford Project will entail the risk of accidental release of fission [ products], which would adversely affect the anadromous fish of the Columbia River and consequently the culture, religion and commerce of the Columbia River tribes."
(Petition,p.3.)
The Staff believes that the assertions of the nature of and effect on CRITFC's interests are sufficient to establish the requisite standing necessary for intervention. The protection of anadromous fish species in the Columbia River basin is a particularized interest within the
" zone of interests" protected by the Atomic Energy Act or the National Environmental Policy Act (NEPA).
In addition, the affidavit of the Executive Director stating that he is duly authorized to file the petition to intervene on behalf of CRITFC is sufficient to demonstrate the necessary authorization required by 10 C.F.R. 5 2.713(b).
Accordingly, the Staff concludes that CRITFC has adequately established the necessary standing to be allowed to intervene as a matter of right in this proceeding.
2.
Identification of Specific Aspects CRITFC has stated that it seeks to intervene in the aspects of this proceeding concerning need for the facility, cost of the facility, reasonably environmentally preferable alternatives, the environmental effects of the facility particularly on the fish and wildlife resources of the Columbia River, and the environmental effects of long-term nuclear waste storage.
(Petition, pp. 5-6.) The designation of these aspects of the proceeding is sufficient to give notice of the subject matter CRITFC wishes to litigate and they are generally issues which can be litigated in NRC proceedings except for the issue of long-term nuclear waste storage. See Section III.A.4, infra. Thus, CRITFC has properly designated an aspect of the proceeding in accordance with 10 C.F.R. % 2.714(a)(2).
3.
Failure to File Petition on Time As indicated earlier, the Federal Register notice established
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March 1,1982, as the deadline for filing petitions to intervene in this proceeding. CRITFC's petition was filed on May 5, 1982 and, therefore, is considered a late-filed petition.
Pursuant to the Commission's regulations, petitions for leave to intervene which are non-timely filed are governved by the provisions of 10 C.F.R. 9 2.714(a)(1). Those provisions provide that tardy petitions will not be entertained absent a determination by the Board that the petition should be approved based upon a balancing of the following five factors:
(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to ahich the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
Furthermore, the burden of establishing the requisite " good cause" and the j
weight to be accorded to the other factors rests with the petitioner.
l See 10 C.F.R. 9 2.723; 10 C.F.R. 9 2.714(a)(1); Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275
(
l (1975).
CRITFC has advanced a number of reasons why it was late in filing i
its petition.
In essence, most of the proffered excuses relate to l
s 1
i
CRITFC's other activities in protecting the anadromous fish populations of the Columbia River.
In particular, it cites its preoccupation with (1) developing a fish and wildlife program pursuant to section 4(h) of the Regional Power Act (2) responding to requests from congressional subcommittees regarding proposed amendments to the Magnuson Fishery Management and Conservation Act, (3) the United States-Canada salmon interception negotiations which took place from April 18-23, 1982, (4) assisting legal counsel in the pending case of Yakima Indian Nation
- v. Baldrige, No. C80-342T (W.D. Wash.), (5) preparing a statement of reasons in its appeal of the decision of the regional forester for region 7 (USDA) to aerially apply pesticide, (6) participating in regulatory development with respect to certain activities of the Bonneville Power Administration, and (7) participating in regulatory hearings and direct negotiations with state and federal agencies to formulate ocean fishing principles and regulation options for Columbia River salmon management.
(Petition, pp. 9-12.)
The Staff submits that preoccupation with the normal day-to-day activities of an organization is an insufficient reason to justify filing an untimely petition to intervene. C f_.
Puget Sound Power & Light Co.
(Skagit Nuclear Power Project, Units 1 and 2), LBP-79-16, 9 NRC 711, 714 (1979).
In this instance, CRITFC has given no indication why it could not or did not interrupt its nonnal activities to file a timely petition to ensure that its interests would be protected in this proceeding.
It also has not asserted that it had a good reason for being unaware of the notice of hearing or the filing deadline, or that it was physically impossible to meet the filing requirements.
For this reasons, we conclude that CRITFC had not established the requisite " good cause" for its tardy petition.
Where no good excuse is tendered for the tardiness, the petitioner's demonstration on the other factors must be particularly strong.
Duke Power Co. (Perkins Nuclear Station, Units 1, 2, and 3), ALAB-431, 6 NRC 460, 462 (1977). However, the key policy consideration for barring late intervenors is one of fairness, viz., "the public interest in the timely and orderly conduct of our proceedings." Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-549, 9 NRC 644, 648-49 (1979), citing Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975). Thus, even though CRITFC has not demonstrated and established a good excuse for its late-filed petition, it can still be allowed tc intervene if consideration of the other four factors listed above weigh in favor of granting the petition, particularly if the timely and orderly conduct of this proceeding is not jeopardized. West Valley Reprocessing Plant, supra at 275-276.
With respect to the other four factors, CRITFC asserts that (1) this proceeding constitutes the last available administrative forum in which the petitioner can protect its treaty reserved rights to fish and wildlife, (2) no other parties to this proceeding have an interest comparable to treaty reserved rights and they cannot be relied on to adequately represent these interests, (3) in light of the Applicant's announced desire to postpone evioentiary hearings on environmental matters until the Spring of 1983, any delay in granting this untimely petition would be insignificant, (4) granting the petition would not prejudice the rights of existing parties because intervention would be granted well in
advance of any evidentiary hearings and ultimate final decisionE/, and (5) it employs biological, water resources, statistical and legal experts to ensure that a sound record will be developed.
(Petition, pp. 6-8.)
The Staff submits that consideration of the four-listed factors must weigh in favor of allowing CRITFC to intervene at this juncture of the proceeding. We believe it is clear that CRITFC's intervention at this time would not jeopardize the timely and orderly conduct of this proceeding. The Staff contemplates that evidentiary hearings on matters within CRITFC's interests would not commence until 1983 -- at least six months from now. Accordingly, CRITFC's intervention would not prejudice any party or affect any hearing schedule.
Furthermore, we believe that the protection and preservation of treaty reserved rights to the Columbia River tribes needs to be fully and carefully considered by the NRC and the State of Washington in the context of this nuclear power plant application.
CRITFC's concerns regarding S/HNP's effects on its treaty reserved rights are unique and important. They cannot be advanced and protected in any other administrative forum nor can they be adequately represented by other parties.
Finally, CRITFC had adequately established that it has at its disposal or the means to obtain expertise to ensure that a sound and full record is developed.
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CRITFC has mistakenly included " prejudicing the ri;5ts of existing parties" as a factor to be considered under 10 C.F.R. 9 2.714(a) in weighing an untimely petition. Although not an explicit factor to be considered, the Staff believes that this can be considered in combination with the other factors -- particularly whether the late petition will broaden the issues and delay the proceeding and, hence, prejudice the rights of existing parties.
In sum, even though the Staff concludes that CRITFC has not adequately established " good cause" for its untimely intervention petition, consideration of the other factors set forth in 10 C.F.R.
% 2.714(a)(1) weighs in favor of accepting its intervention petition at this early stage of the proceeding.
4.
CRITFC's Contentions In a supplement to the petition to intervene, CRITFC has listed five (5) contentions it wishes to litigate. These contentions must meet the basis and specificity requirements of 10 C.F.R. 6 2.714(b) in order to be admitted as issues in controversy. DuquesneLightCo.(BeaverValley, Unit No. 1), ALAB-109, 6 AEC 243, 245 (1973); Northern States Power Co.
(Prairie Island, Unit Nos. I and 2), ALAB-107, 6 AEC 188,194 (1973),
aff'd, BPI v. Atomic Energy Commission, 502 F.2d 424, 429 (D.C. Cir.
1974).
10 C.F.R. % 2.714(b) requires that a list of contentions which a petitioner seeks to have litigated be filed along with the bases for those contentions set forth with reasonable specificity. A contention must be rejected where:
(a) it constitutes an attack on applicable statutory requirements; (b) it challenges the basic structure of the Commission's regulatory process or is an attack on the regulations; (c) it is nothing more than a generalization regarding the intervenor's views of what applicable policies ought to be; (d) it seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or
(e) it seeks to raise an issue which is not concrete or litigable.
Philadelphia Electric Cc. (Peach Bottom Atomic Power Station, Units 2 &
3), ALAB-216, 8 AEC 13, 20-21 (1974).
The purpose of the basis requirement of 10 C.F.R. 6 2.714 is to assure that the contention in question does not suffer from any of the infirmities listed above, to establish sufficient foundation for the contention to warrant further inquiry into the subject matter in the proceeding, and to put the other parties sufficiently on notice "so that they will know at least generally what they will have to defend against or oppose." Peach Bottom, supra, at 20.
From the standpoint of basis, it is unnecessary for the petition "to detail the evidence which will be offered in support of each contention." Mississippi Power & Light Co.
(Grand Gulf Nuclear Station, Units 1 & 2), ALAB-130, 6 AEC 423, 426 (1973). However, the degreee of specificity with which the basis for a contention must be alleged involves the Board's judgment on a case by case basis.
Peach Bottom, supra, at 20.
Finally, in examining the contentions and the bases, a licensing board is not to reach the merits of the contentions. Duke Power Co. (Amendment to Materials License SNM-1773-Transportation of Spent Fuel From Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146, 151 (1979);
Peach Bottom, supra, at 20; Grand Gulf, supra, at 426.
In a recent decision, Houston Lighting and Power Company ( Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542 (1980),
the Appeal Board applied the principles described above governing the admissibility of contentions. The decision emphasized that in ruling on
the admissibility of a contention, a licensing board is not to venture beyond the contention and its stated basis into the merits of the issue.
Any question concerning the validity of the contention or of its basis must be left for consideration when the merits of the controversy are reached, i.e., through summary disposition or in the evidentiary hearing.
Id. at 546-551.
In sum, at the petition stage, it is incumbent upon the petitioner to:
(1) set forth contentions which are sufficiently detailed and specific to demonstrate that the issues raised are admissible and relevant to the issuance of this operating license; (2) show that further inquiry is warranted; (3) put the other parties on notice as to what they will have to defend against or oppose; and (4) set forth a reasonable basis for each of the contentions, recognizing that the degree of specificity of basis needed will be judged on a case-by-case basis. With this preface, we will now examine CRITFC's contentions to determine their admissibility.
1.
Applicants Have Relied On An Inflated Calculation Of Demand For Electrical Power; Reliable Regional Energy Forecasts Demonstrate No Need For the Skagit/Hanford Project 2.
There Are Cost-Effective, Environmentally Preferable Alternatives To The Project; The Environmental Report Is Inadequate In Its Discussion Of Those Alternatives CRITFC has incorporated by reference the contentions and bases filed by the Natural Resources Defense Council (NRDC) on these issues. The NRC Staff believes that these contentions as worded by NRDC meet the basis and specificity requirements and, therefore, should be admitted as issues in controversy. CRITFC, however, should be consolidated with NRDC on I
these issues under 10 C.F.R. 6 2.715a since it has incorporated by reference all of NRDC's contentions and bases on these matters.
3.
The Applicant Has Used An Inaccurately Low Estimate On The
. Environmental And Financial Cost Of The Project In Its Benefit / Cost Ratio CRITFC has incorporated by reference this contention and its bases as filed by the National Wildlife Federation /0regon Environmental Council (NWF/0EC) in its Supplement to the Amended Petition to Intervene, dated April 20,1982. The NRC Staff submits that this contention as worded by NWF/0EC meets the specificity and basis requirements and should be admitted as an issue in controversy. However, CRITFC should be consolidated with NWF/0EC on this issue.
4.
The Applicants Have Failed To Assess Fully The Environmental Impacts Of Their Proposal And, In Particular, The Impacts Of The Project On Columbia River Fish And Wildlife Resources First, CRITFC has incorporated by reference the contention and its basis as filed by NWF/0EC in its supplement to the amended petition.
The alleged basis for this proposed contention as advanced by NWF/0EC is that when additional baseload thermal resources, such as the proposed Skagit/Hanford Nuclear Project, are added to the regional electrical system, the regional hydro projects in the system will operate more as peaking units. The increased use of hydro-peaking will allegedly cause significant impacts to the fish and wildlife resources along the Columbia River. Supplement to Petition filed by NWF/0EC, pp. 4-5.
The program of adding additional thermal baseload units to the regional resources and shifting hydro projects to peaking is under the review and implementation authority of the Bonneville Power Administration (BPA). Thus, any impacts associated with this regional hydro-thermal program should be reviewed and assessed by BPA.
In fact, it appears that the BPA has assessed these impacts in its programmatic environmental impact statement.
See Final EIS, the Role of Bonneville Power Administration in the Pacific Northwest Power Supply, December 1980. The Commission has held that:
"... issues fully addressed in a program statenent need not be addressed again in a subsequent impact statement concerning only a part of the program." United States Energy Research and Development Administration Project Management Corporation Tennessee Valley Authority (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 at 80 (1976). Cf. Scientists' Institute for Public Information, Inc7 v. AEC, 481 F.2d 1079, 1087-1088, 1093 (D.C. Cir. 1973).
Accordingly, to the extent that this proposed contention asserts that the Applicants have inadequately assessed the impacts to fish and wildlife resources as a result of BPA shifting its hydro projects to peaking, it is beyond the scope of this proceeding. Consistent with Clinch River, supra, those impacts have been assessed by BPA in its programmatic EIS on the regional hydro-thermal program and need not be considered here.
However, in addition CRITFC asserts as bases for this contention that the Applicants have failed to fully assess the individual and cumulative environmental impacts associated with aquatic discho es of pollutants and radioactive materials.
In particular, CRITFC alleges that the Applicants have not fully assessed (a) the impacts resulting from the combined discharge of pollutants, (b) the toxic effects of radioactive material discharges, aside from those effects related to radioactive doses, (c) the acute toxicity effects of pollutants within the mixing zone, and (d) the depressed conditions of the local salmonid populations.
The NRC Staff submits that the above allegations lack basis and specificity particularly in light of the fact that both the Applicants and the NRC Staff considered the effects of operation of the S/HNP on aquatic biota in the Columbia River. See e.g. Draft Environmental Statement (DES) related to the construction of Skagit/Hanford Nuclear Project, Units 1 and 2, NUREG-0894 (April 1982), pp. 4-58 to 4-65; ASC/ER for S/HNP, Section 5.1.
These assessments have considered ambient conditions in the Columbia River, the concentrating effects of the operation of the S/HNP, and any synergistic effects that might be expected. CRITFC has not alleged how these assessments are deficient in any particularized manner nor has it alleged how or why " depressed conditions of the local salmonid populations" should be considered.
Finally, CRITFC has alleged that the " toxic effects of radioactive material discharges" has not been fully assessed.
In this respect, the Staff has concluded that "it is generally agreed that the [ radiation exposure] limits established for humans are sufficiently protective for other species" and "no measurable radiological inpact on populations of biota is expected as a result of the routine operation of this facility."
DES, pg. 4-191. CRITFC has not provided any basis or specificity as to why these assumptions and conclusions with respect to the radiosensitivity
radiosensitivity of aquatic biota is erroneous. Absent the requisite basis and specificity, these allegations must be rejected.6_/
5.
The Commission Should Not Issue Any Construction Pemit Or Facility License For Skagit/Hanford Pending Completion Of The Waste-Proposal Confidence Proceeding CRITFC has incorporated by reference the contention and bases submitted by NWF/0EC in its supplement to its amended petition.
NWF/0EC asserts in this contention that no construction permits for the facility should be issued until the Commission completes the Waste-Disposal Confidence Proceeding arising from the decision in Minnesota v.
NRC, 602 F.2d 412 (D.C. Cir.1979). The Commission is considering the waste management question in a generic rulemaking proceeding. See 44 Fed. Rg. 45362 (August 2, 1979).
In addition, it has determined that
" licensing practices need not be altered during this proceeding." 44 Fed. R_eg. 61372, 373 (October 25,1979). Based on this Commission e
precedent, the Appeal Board has held that licensing boards are precluded from withholding licensing authorizations pending completion of the waste management generic rulemaking. Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584,11 NRC 451, 463-65 (1980); Public Service Company of Oklahoma (Black Fox Station, Units 1
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Our position on this contention is consistent with Allens Creek, ALAB-590, supra. There the Appeal Board opined that the petitioner had discharged his obligation to provide a basis for the contention by his reference to a DOE publication, Project Independence, and his assertion respecting the environmental superiority of the alternative.
Id, 11 NRC 542 at 548-549. Here, CRITFC hasn't referred to anything which would provide basis for its bald assertions.
and 2), ALAB-573, 10 NRC 775, 800)) (1979). Accordingly, this contention must be rejected because the Licensing Board is precluded from withholding issuance of the construction permits pending completion of the Waste-Disposal Confidence Proceeding.
B.
Yakima Indian Nation 1.
Interest On May 10, 1982, the Yakima Indian Nation filed a petition to intervene through its legal representative, James B. Hovis. This petition alleges the following matters pertaining to interest in this proceeding. The Yakima Indian Nation was established by treaty with the United States in 1855 and consists of fourteen bands and tribes of people indigenous to the region of the proposed site.
In the Treaty With the Yakimas, 12 Stat. 951 (1859), the Yakima Nation ceded to the United States large areas of land, including the Hanford Reservation, where the consolidated tribes formerly pursued fishing, hunting and other gathering rights. By treaty, the Yakima Indian Nation reserved for its exclusive use and benefit the Yakima Indian Reservation, consisting of 1,365,000 acres and located approximately 13 miles northwest (at its closest point) from the Hanford Reservation. The Yakima Indian Reservation is homeland for the majority of the members of the Yakima Indian Nation, a membership that approaches 7,000 members. The Yakima Indian Nation was guaranteed by treaty the sovereign power to by governed by its own government and by its own laws, and in addition exercises certain governmental responsibility for more than 25,000 non-members who reside within the exterior boundaries of its reservation.
In addition to the more physical
relations with the land, the Yakima Indian Nation and its members have a spiritual relationship with the interdependence of the land, water, and all living and growing things within their native area. Thus, by treaty and through cultural and religious beliefs, the Yakima Indian Nation believes that it is responsible to its members to protect the habitat and ecological systems necessary to maintain an actual fishery and other hunting and gathering rights.
(Petition, pp. 1-3.)
The Yakima Indian Nation alleges that the proposed projects "will not only interfere with the land-based reserved gathering rights...
but will affect the waters of the Columbia River and the habitat of important runs of anadromous and native fish."
(Id,p.3.)
The Staff believes that the assertions of the nature of and effect on CRITFC's interests are sufficient to establish the requisite standing necessary to intervene as a matter of right. Not only is the Yakima Indian Reservation within close proximity of the proposed site, but the protection of fish species in the Columbia River is a particularized interest within the " zone of interests" protected by the Atomic Energy Act or NEPA.
In addition, the attached aftidavit of Mr. Johnson Meninick, Ciiairman of the Yakima Tribal Council, stating that he is duly duthorized to submit the petition to intervene on behalf of the Yakima Indian Nation is sufficient to demonstrate the necessary authorization required by 10 C.F.R. $ 2.713(b). Accordingly, the Yakima Indian Nation has established the necessary standing to be allowed to intervene in this proceeding.
. 2.
Identification of Specific Aspects The Yakima Indian Nation has stated in its petition that it seeks to intervene on thirteen (13) specific aspects. The Staff submits that the petitioner has identified at least several potential effects of the licensing action which are within the scope of matters that may be considered in the proceeding.7_/ However, we also submit that any contention pertaining to long-term nuclear waste disposal is outside the scope of this proceeding.
See Section III.A.4, supra. Further, identified aspects (8) through (13) are at this pleading stage too vague to comment on their potential admissibility.
In fact, these aspects are merely statements of interest rather than an identification of potential litigable issues.
In any event, since the petitioner has identified at least one potential aspect which can be litigated, the Staff concludes that the Yakima Indian Nation has met the " specific aspect" requirement of 10 C.F.R. 9 2.714(a)(2).
3.
Failure to File on Time As indicated earlier, the Federal Register notice established March 1,1982, as the deadline for filing petitions to intervene. Since the Yakima Indian Nation petition was filed on May 10, 1982, it is considered a late-filed petition and has to be measured against the " good
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The Staff believes that specific a.;pects (1)--inflated calculation of demand, (2)--flawed benefit-cost analysis, (3)--preferable alternatives, and (4)--environmental impacts of construction and operation on treaty reserved rights, are within the scope of matters that may be considered.
cause" and other factors set forth in 10 C.F.R. 5 2.714(a)(1).
See Section III.A.3, supra.
1 With respect to good cause, the Yakima Indian Nation asserts basically.that the Yakima Tribal Council was undergoing elections and reorganizations at the time the petition could have been timely filed and that this governmental action caused the delay in filing. The NRC Staff believes that this proffered excuse is insufficient to justify filing an untimely petition to intervene. Cf. Skagit, LBP-79-16, supra. The petitioner has given no indication why tribal elections would cause the petitioner's legal representative or Tribal leader not to take appropriate actions to protect its interests in this proceeding.
Although we recognize that governmental elections can disrupt normal business activities, we cannot accept that excuse in this instance because the Yakima Indian Nation was specifically mailed a copy of the Federal Register noticing the hearing (47 Fed. Reg. 5554) on February 10, 1982, and again by letter from Staff counsel on March 11, 1982.
Accordingly, the petitioner was provided specific notice of this proceeding three months prior to the submission of the petition.
In our mind, sufficient justification has not been given for this untimely filing under these circumstances.
As we discussed earlier with respect to the CRITFC petition, where no good excuse has been tendered for the tardiness, the petitioner's demonstration on the other factors must be particularly strong. However, one of the key considerations in measuring these factors is whether the timely and orderly conduct of these proceedings will be jeopardized by the late intervention. Likewise, the NRC Staff believes it very important that treaty reserved rights be considered in these proceedings.
. The Yakima Indian Nation has advanced virtually identical arguments on the other four factors as CRITFC. Accordingly, our discussion of those factors with respect to CRITFC would apply to this petition. Our assessment of the factors hardly needs repeating except for tne reiteration of our conclusion as applied to this petition. That is, (a)theYakimaIndianNation'sinterventionatthistimewouldnotimpede the timely and orderly conduct of this proceeding, (b) there are no other means whereby the petitioner's interest of protecting treaty reserved rights from any effects of this licensing action can be considered, (c) the petitioner has the means and the resources which can reasonably be expected to assist in developing a sound record, and (d) the petitioner's unique interests cannot adequately be represented by existing parties.8/ Therefore, even though the Yakima Indian Nation has not adequately established " good cause" for its untimely intervention petition, consideration of the other factors set forth in 10 C.F.R. 5 2.714(a)(1) weighs in favor of accepting its intervention petition at this early stage of the proceeding.
C_f_. West Valley Reprocessing Plant, f
supra at 275-276.
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We would again note, however, that it appears that the Yakima Indian Nation and CRITFC have virtually identical interests to protect and have advanced several identical contentions. Accordingly, consolidation on these identical issues may be appropriate.
IV.
CONCLUSION In this response, the NRC Staff has considered the untimely petitions to intervene filed by CRITFC and the Yakima Indian Nation.
With respect to both petitions, we have concluded that they have met the requiste " interest" and " specific aspects" requirements of 10 C.F.R.
$ 2.714(a)(2).
In addition, we have determined that even though both petitioners have not established " good cause" for their late-filed petitions, their untimely petitions should nevertheless be entertained by the Licensing Board because the consideraton of the other four untimeliness factors set forth in 10 C.F.R. 5 2.714(a)(1) must be weighed in favor of intervention at this early stage of the proceeding.
- Finally, we considered the five contentions advanced by CRITFC and coisluded that only contentions (1)-(3) should be accepted. The Yakima Indian Nation petition did not list the specific contentions it wishes to litigate.
However,10 C.F.R. 9 2.714(a)(3) states that a petition for leave to intervene may be amended with the approval of the presiding officer after fifteen days prior to the holding of the special prehearing conference.El The special prehearing conference in this case was held on May 5, 1982.
-9/
Since 10 C.F.R. 5 2.714(a)(3) states that a petition may be amended without approval at any time up to fifteer. (15) days prior to the l
holding of the special prehearing conference, we have inferred that l
approval is required to amend at any time subsequent to this prescribed time. See also 10 C.F.R. 5 2.714(b).
i
Therefore, a supplement to the petition listing contentions and their bases may be filed with the approval of the presiding officer upon consideration of the factors set forth in 10 C.F.R. Q 2.714(a)(1). The NRC Staff; for the reasons discussed in this esponse with respect to these untimely petitions, has no objection to the Licensing Board granting additional time (e.g. fifteen (15) days) for the Yakima Indian Nation to file its contention supplement after the issuance of the Board's order ruling of the initial petition.
Respectfully submitted, h
Richard L. Black Counsel for NRC Staff Da'.ed at Bethesda, Maryland this 25th day of May,1982.
i l
r
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of PUGET SOUND POWER & LIGHT
)
Docket Nos. STN 50-522 COMPANY, ET AL.
STN 50-523 (Skagit/Hanford Nuclear Power
)
Project, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO UNTIMELY PETITIONS TO INTERVENE FILED BY THE COLUMBIA RIVER INTER-TRIBAL FISH COMMISSION AND THE YAKIMA INDIAN NATION 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 Commission's internal mail system, this 25th day of May, 1982.
John F. Wolf, Esq., Chairman Kevin M. Ryan, Esq.
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Temple of Justice Board Panel Olympia, WA 98504 3409 Sheperd Street Chevy Chase, MD 20015 Mr. Gustave A. Linenberger*
Administrative Judge Warren Hastings, Esq.
Atomic Safety and Licensing Associate Corporate Counsel Board Panel Portland General Electric Company U.S. Nuclear Regulatory Commission 121 S.W. Salmon Street Washington, DC 20555 Portland, OR 97204 l
Dr. Frank F. Hooper Administrative Judge Atomic Safety and Licensing Mr. Lloyd K. Marbet Board Panel c/o Forelaws on Board School of Natural Resources 19142 S. Bakers Ferry Road University of Michigan Boring, OR 97009 Ann Arbor, MI 48190 L
Robert Lowenstein, Esq.
Coalition for Safe Power Lowenstein, Newman, Reis, Axelrad Suite 527, Governor Building
& Toll 408 Southwest Second Avenue 1025 Connecticut Avenue, N.W.
Portland, Oregon 97204 Suite 1214 Washington, D.C. 20036 James W. Durham, Esq.
Portland General Electric Company 121 S.W. Salmon Street, TB17 Mr. Nicholas D. Lewis, Chairman Portland, OR 97204 Washington State Energy Facility Site Evaluation Council Docketing and Service Section 4224 6th Avenue, S.E.
Office of the Secretary Mail Stop PY-11 U.S. Nuclear Regulatory Comission Olympia, WA 98504 Washington, D.C. 20555 F. Theodore Thomsen, Esq.
Perkins, Coie, Stone, Olsen
& Williams Richard D. Bach, Esq.
1900 Washington Building Rives, Bonyhadi & Drumond Seattle, WA 98101 1400 Public Service Building 920 S.W. 6th Avenue Portland, OR 97204 Atomic Safety and Licensing Ralph C. Cavanagh Board Panel
- Attorney for the Natural Resources U.S. Nuclear Regulatory Comission Defense Council, Inc.
Washington, DC 20555 25 Kearny Street San Francisco, CA 94108 Atomic Safety and Licensing Appe.ai Boara*
Terence L. Thatcher U.S. Nuclear Regulatory Comission Pacific Northwest Resources Wastington, DC 20555 Center Law Center, 1101 Kincaid Eugene, OR 97403 e/M Hwiiid.
s Assista hief Hearing Counsel
.