ML20053E559
| ML20053E559 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 06/04/1982 |
| From: | Lazo R Atomic Safety and Licensing Board Panel |
| To: | HOURIHAN, P. |
| Shared Package | |
| ML20053E560 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8206090019 | |
| Download: ML20053E559 (6) | |
Text
_ _ - _ _ - _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
UNITED STATES OF AMERICA'N Er NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 7
- q g Administrative Judges
Robert M. Lazo, Chairman Dr. Richard F. Cole SERVED JUN 071982 Dr. A. Dixon Callihan In the Matter of Docket Nos.
STN-50-528-0L
)
STN-50-529-OL ARIZONA PUBLIC SERVICE COMPANY, ET AL. )
STN-50-530-0L
)
(Palo Verde Nuclear Generatino Station, June 4, 1982 Units 1, 2 and 3 Operating License
)
Proceeding)
MEMORANDUM AND ORDER On April 27, 1982, this Atomic Safety and Licensing Board made an oral ruling denying the admissibility in this proceeding of the potential effects of the lawsuit filed by the Pima-Maricopa Indian Community against the Department of the Interior and the Secretary of the Interior. Tr. 346.
The Board also declined to examine the validity of the Applicants' contract with City of Phoenix and the other cities for the purchase of effluent.
Id. On May 14, 1982, Counsel for the Intervenor filed a motion asking the 950 Board to reconsider its ruling.
Following oral arguments on May 25, 1982 (Tr. 985-1012), the Board on May 26, 1982, made a brief oral ruling 8206090019 820604 PDR ADOCK 05000528 0
l
. confirming the conclusions reached in its earlier decision and indicating that this written order would follow.
Tr. 1269.
I.
The Validity of the Contract On March 17, 1982, the Board issued a Memorandum and Order which among other things. denied the Joint Applicants' motion for sumnary disposition of Contention 5.
The Board indicated in that Order that it had received a letter from Mr. Bill Stephens, Executive Director of the Arizona Municipal Water Users Association, which advised the Board that Agreement No.13904, pursuant to which effluent will be supplied to Joint Applicants for cooling purposes at Palo Verde, was being renegotiated.
The Board considered the issue of the provisions of this agreement to be within the scope of Contention 5, and thus denied the motion.
Tr.
346.
It did not, and does not, consider the validity of the contract itself to be at issue.
Id. As the Chairman indicated during the course of the proceeding, if some jurisdiction rules in the future that the contract is invalid and the reclamation laws apply,another source of water will have to be found or Palo Verde will be shut down.
Id.
II.
The Claims of the Pima-Maricopa Indian Community Contrary to the the assertions of the Intervenor, this Licensing Board is not obliged under NEPA to consider all issues which are l
3 i
currently tue subject of litigation in other forums and which may some day have an impact on the amount of effluent available to Palo Verde.
It is true that this agency has a responsibility under NEPA to " predict the environmental effects of a proposed action before the action is taken and these effects fully known." Scientists' Institute for Public Information.
Inc. v. AEC, 481 F.2d 1079,1092 (D.C. Cir.1973); quoted irl tate of S
Alaska v. Andrus, 580 F.2d 465, 473 (D.C. Cir.1978), vacated, in part, sub nom., Western Oil and Gas Association v. Alaska, 439 U.S. 922 (1978).
Where these effects are remote and speculative, agencies are not automatically precluded from proceeding with a project until all uncertainties are removed.
State of Alaska v. Andrus, Id.
While the j
decisionmaker must weigh the cost of uncertainity, "where the responsible decisionmaker has decided that it is outweighed by the benefits of proceeding with the project without further delay, the courts may not substitute their judgment for that of the decisionmaker and insist that the project be delayed while more information is sought.
Id. at 473-4.
~
The D.C. Circuit quoted with approval the 9th Circuit's statement that NEPA cannot be " read as a requirement that complete information concerning the environmental impact of a project must be obtained before action may be taken.
If we were to impose a requirement that an impact statement can never be prepared until all relevant environmental effects were known, it is doubtful that any project could ever be initiated."
4 Jicarilla Apache Tribe of Indians v. Morton, 471 F.2a 1275, 1280 (9th Cir.
1973) (emphasis added by the D.C. Circuit).
Both the Licensing Board and the Joint Applicants are aware of the pending lawsuit brought by the Pima-Maricopa Indian Community against the Department of the Interior.
If the issue is resolved in favor of the Indian Community, the supply of effluent needed to run Palo Verde may be turtailed.
It is not the job of, nor is it within the jurisdictico of, this Licensing Board to resolve this issue.
It is currently being litigated in its proper forum.
The Board is thus faced with the choice of withholding the license to operate Palo Verde until the lawsuit is resolved in Federal District Court, or of allowing Palo Verde to operate if it finds that there is presently an assured supply of water.
We have chosen the latter course of action.
The Indian lawsuit may take several years to resolve.
Palo Verde has been constructed and stands ready to operate. To delay its operation further based on a speculative result will cause an undue and unnecessary financial burden to fall on both Applicants and ratepayers.
In contrast, no irreparable harm will be done if the plant is allowed to operate.
If the outcome of the lawsuit renders unavailable the effluent necessary to operate Palo Verde, the plant will shut down unless other sources of effluent can be found.
This is a risk assumed by the Applicant as a condition of the operating license. While there are financial uncertainties inherent in this situation, tnere is a certainty that considerable costs will be incurred if Palo Verde stands idle during the pendency of a lengthy litigation.
. The recent, ruling of the United States Court of Appeals for the District of Columbia is not at odds with these principles.
In Natural Resources Defense Council v. NRC, No. 74-1586 (D.C. Cir. April 27,1982),
the majority held that the NRC's Table S-3 Rules 3I were invalid due to their f ailure to allow for proper consideration of the uncertainties that underlie the assumption that solidified high-level and transuranic wastes will not affect the environment once they are sealed in a permanent repository.
Slip op. at 69.
In a lengthy opinion, the court commented that among the I
environmental costs that an agency must consider under Section 102(c) of NEPA, 42 U.S.C.
4332(c), are "significant environmental risks --
probabilities or possibilities of environmental damage.
Such risks may be presented due to the underlying randomness of nature. Or they may be due to human uncertainties over either the character of both random and nonrandom phenomena or the ability of future technology to cope with those phenomena." Slip op. at 36-7 (citations omitted).
The Intervenor misconstrues this dicta to apply not only to environmental phenomena, but to any uncertainties which may in the future have an impact, however, remote and speculative, on environmental concerns. The D.C. Circuit was concerned about the possible impact of solidified high level and transuranic waste disposal on the environment, an impact which is presently unknown. The issue in controversy in our case concerns a 1/ The table S-3 Rules established a system by which to consider and disclose the environmental impact of the uranium fuel cycle in compliance with NEPA.
Slip op. at 4.
l
... dispute over legal rights.
This dispute may in the future involve environmental effects, which have already been considered. As previously sxplained, if the lawsuit should produce an environmental effect which negates an assured supply of effluent for Palo Verde, the plant will not operate. Therefore, there are no environmental uncertainties to consider. The uncertainty in this case is a legal uncertainty, which is now under the jurisdiction of the United States District Court System; it is not within the jurisdiction of this Licensing Board.
The Licensing Board therefore confirms its oral rulings of April 27 and May 26, 1982.
For the foregoing reasons and in consideration of the entire record in this matter, it is this 4th day of June, 1982 ORDERED That Intervenor's Motion To Reconsider Board's Ruling Of April 27, 1982 As To The Inadmissibility Of The Effects Of The Claims Of The Pima-Maricopa Indian Community On Applicants' Source Of Water And The Legality of Applicants' Contract For Effluent, dated May 14, 1982, is denied.
FOR THE ATOMIC SAFETY AND AND LICENSING BOARD L
Robert M. Lazo, Chairman v ADMINISTRATIVE JUDGE A