ML20054H250

Petition for Directed Certification Re ASLB Exclusion of Evidence About Invalidity of Util Contract for Effluent & Likely Effects of Pima-Maricopa Indian Lawsuit on Assured Water Supply

ML20054H250
Person / Time
Site:	Palo Verde
Issue date:	06/21/1982
From:	Bernabei L HARMON & WEISS, HOURIHAN, P.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20054H251	List: ML20054H250 ML20054H256 ML20054H258
References
NUDOCS 8206230155
Download: ML20054H250 (11)

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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ^ ' lb BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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ARIZONA PUBLIC SERVICE )

COMPANY, et al. ) Docket Nos. STN 50-528

) STN 50-529 (Palo Verde Nuclear ) STN 50-530 Generating Station, )

Units 1, 2, and 3) )

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INTERVENOR'S PETITION FOR DIRECTED CERTIFICATION PURSUANT TO 10 CFR S2.718 (i)

Intervenor Patricia Lee Hourihan, hereby applies to the Licensing Board, for directed certification of several questions related to this Board's exclusion of evidence about the inavlidity of Applicants' contract for effluent, and the likely effects of the Pima-Maricopa Indian lawsuit on an assured supply of water for the operatien and shutdown of Palo Verde.

Intervenor argues that the Board erred in excluding evidence about the invalidity of Applicants' contract for effluent, which vitally affects the licensing proceeding and could be determinative of the outcome.

I BACKGROUND On January 19, 1982, the Pima-Maricopa Indian Community filed suit against the Department of the Interior and the Secretary of the Interior asking that the Secretary be ordered to carry out his duties under federal reclamation 8206230155 820621 DR ADOCK 05000528

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2 laws to ensure that the Indian Community's prior and superior claims to reclamation waters be satisfied.1 On March 15, 1982, NRC staff counsel brought the suit to the Board's attention. On March 22, 1982, Intervenor moved to postpone the beginning of the licensing hearing on the ground that further investigation was required of the Indians' claims and their possible adverse effect on an assured supply of water for Palo Verde. Intervenor argued that if the court were to 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 satisfy these claims. Therefore, Applicants' contract for effluent was seriously threatened by the Indians' lawsuit and the Indians' superior claim to effluent.

On March 17, 1982, the Board denied Joint Applicants' Motion for Summary Disposition on Contention 5 regarding whether or not Applicants have an assured supply of water for cooling purposes at Palo Verde. The Board based its denial on a February 10, 1982, letter to the Board from Mr. Bill Stephens, executive director of the Arizona Municipal Water Users Association, which advised the Board that Agreement No. 13904, under which effluent was to be

-1/ Plaintiff has subsequently added all Joint Applicants as defendants in that suit. See Letter of Intervenor's Counsel, May 15, 1982.

. o 3 supplied to Joint Applicants, was being renegotiated. The issues then being renegotiated included:

1) the right of the cities pursuant to section 21 of Agreement No. 13904 to refuse to deliver effluent for use at Palo Verde when the cities developed a critical need for the water;

2) the amount of effluent, if any, available for use at Palo Verde;

3) the monthly delivery schedule for the amount of effluent available for Palo Verde;

4) permissible uses of effluent other than for cooling purposes at Palo Verde;

5) the cost of effluent for Palo Verde; and

6) the source of effluent for Palo Verde.

The Board held that "in view of this development,"

it had no choice but to deny Applicants' motion for summary disposition of Contention No. 5.

On April 13, 1982, the Board denied Intervenor's Motion to Postpone Hearing and indicated that although it would "take cognizance of activities before other tribunals when the facts so wa. rant,...under the circumstances, the Board i believes that the Nuclear Regulatory Commission should not I

subordinate its licensing process to matters which are so speculative and conjectural." The Board also stated that the Commission would be able to take appropriate action if it became obvious at a later time that the effluent supply

. . 4 for Palo Verde was threatened by the Pima-Maricopa Indian Community lawsuit.

On May 14, 1982, Intervenor moved that the Board reconsider its ruling excluding evidence about the possible effect of the Indian Community's lawsuit on the supply of effluent for Palo Verde, and the legality of Applicants' Contract for effluent, in light of an April 27, 1982, decision of the United States Court of Appeals for the District of Columbia that directed licensing boards to consider all uncertain environmental effects, even if not quantifiable or certain. See Natural Resources Defense Council v. NRC, 77-1148, 79-2110 and 79-2131 (D.C. Cir. April 27, 1982).

The Board heard oral argument from all parties on May 25, 1982. In response to Board questions about the effect on environmental costs of having the effluent contract invalidated", Tr. 1001, Intervenor's counsel answered that Applicants' had stated that the cost if Palo Verde were shutdown for one day due to failure to receive effluent is about $760,000 per day per reactor, and that would be one indication of increased environmental costs due to invalidity of the contract. Tr. 1005. Intervenor's 2/ The so-called "S-3 decision" held that the NRC's Table S-3 which provides a set of numerical values intended to reflect the environmental effects of the uranium fuel cycle, violated the National Environmental Policy Act ("NEPA") because it failed to take into account 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, slip. og. at 34., 69.

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counsel further stated that if the contract wer invalidated, the Applicants would be forced to find a new source of water and thus incur and cause certain environmental costs, including ,

building a pipeline, increased costs for the water, and the costs suffered by those persons and entities losing the water to Applicants. Tr. 1009.

On May 26, 1982, the Board made a brief oral ruling denying Intervenor's motion for reconsideration.

'I Intervonor intended to present Mr. John Leshy to testify on the Secretary of the Interior's responsibilities over federal reclamation waters, the proposed exchanges by the municipalities with the Indian tribes of effluent for potable water, and the contracts for and allocations of Central Arizona Project (" CAP") water for the Salt River Valley. The Board, based on its prior rulings, did not allow Mr. Leshy to testify. Tr. 1559. The Board Chairman also stated that Mr. Leshy was not an appropriate witness because "he could testify only as to a legal argument, not a technical opinion." Tr. 1570.

Intervenor's counsel made a proffer as to Mr. Leshy's testimony. Tr. 1575. Mr. Leshy, if allowed, would testify l

that the cities in Arizona for several years have been shipping effluent to the Indians in satisfaction of a portion of the Indians' water rights claims. He would testify further that it is likely that most if not all of i

6 the ef fluent of the cities would in the future be shipped to the Indians.  !!e would testify that this was dependent on th) desires of the Indians, whether wastewater treatment facilities are located to make these exchanges possible, and on the absolute amount of effluent produced. IIe would also testify that the cities are eager to make these exchanges and that the Secretary of the Interior has reserved the right in all contracts allocating Indian tribes CAP water to require the Indians to take effluent. Finally, he would testify that the Secretary of the Interior probably can exert authority over a large portion of the effluent produced within the Salt River Project area and could, therefore, force exchanges between the cities and Indian tribes. He would also testify that the Applicants' contract for effluent to be valid, must be signed by the Secretary of the Interior, and that the Solicitor of the Department of Interior in 1980 indicated grave doubts that the contract to sell effluent, derived in part from federal reclamation waters, was legal, when there existed unmet needs for water within the Salt River Project boundaries. Tr 1575-1579.

On June 4, 1982, the Board issued a Memorandum and Order in which it explained its denial of Intervenor's Motion to Reconsider. The Board stated that it was not required I

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under NEPA to consider the Pima-Maricopa Indian Community lawsuit because the disputo did not involve future environmental effects or environmental uncertainties.

If the contract were to be declared invalid, the Board stated, the plant would not operate. This is "a risk assumed by the Applicant as a condition of the operating license." Slip. Og. at 4. Any environmental effects related to this closhing, "have already been considered."

Id. at 6. The Board also suggested that it saw that the only alternatives open to it were either to withhold a license to operate Palo Verde until the lawsuit was resolved in federal court, or to refuse to consider the possible effects of the lawsuit in the licensing proceeding.

Id. at 4. Balancing the harms flowing from both courses <

of action, the Board decided that the applicants and rate-payers would suffer "an undue and unnecessary financial burden" if Palo Verde's operation were delayed. "[N]o irreparable harm" would result if the plant were granted a license. Ibid.

Intervenor now moves for certification of two questions related to the Licensing Board's refusal to admit evidence i about the possible invalidity of Applicants' contract for effluent, and the effect of the Pima-Maricopa Indian Community lawsuit on Applicants' contract.

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II. QUESTIONS FOR CERTIFICATION

1. Whether the Licensing Board erred in refusing to admit evidence about the possible invalidity of Applicants' contract for effluent?

2. Whether the Licensing Board erred in refusing to admit evidence about the possible effects of the Pima-Maricopa Indian Community lawsuit on Applicants' contract for effluent?

III. INTERVENOR MEETS THE STANDARD FOR CERTIFICATION.

A Licensing Board has the authority to certify questions during a licensing hearing under 10 C.F.R. S2.718(i) of the Commission's regulations, which provides in relevant part:

A presiding officer has the duty to conduct a fair and impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order. He has all power necessary to those ends, including the powers to:

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(i) certify questions to the Commission for its determination, whether in his discretion or on direction of the Commission.

Section V(f) (4) of Appendix A to 10 C.F.R. Part 2 states the j standard for directed certification:

A question may be certified to the Commission or the Appeal Board, as appropriate, for determination when a major or novel question of policy, law or procedure j is involved which cannot be resolved except by the

Commission or the Appeal Board and when a prompt and final decision of the question is important

] for the protection of the public interest, or to

avoid undue delay or serious prejudice to the interests

! of a party, t

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9 This Licensing Board, pursuant to this standard, has the authority to certify to the Appeal Board important questions affecting the outcome of the licensing proceeding.

Although the Commission has a general policy disfavoring interlocutory review, 10 C.F.R. 52. 730 ( f) , the Appeal Board has on many occasions stated that discretionary interlocutory review pursuant to S2.718(i) will be granted where the ruling below either threatens the adversely affected party with immediate and serious irreparable impact, which as a practical matter, cannot be alleviated by a later appeal, or which affects the structure of the proceeding in a pervasive or unusual manner.3 Obviously the basic question of whether or not Applicants' contract for effluent is valid is central to the Board's decision of whether Applicants have demonstrated an assured supply of water for operation and safe shutdown of the Palo Verde plants. Evidence about renegotiation of the contract and the likelihood that the cities will invoke Section 21 of the contract at times of critical need can have no meaning without some consideration of the likelihood that the contract will be determined to be legal, and of full force and effect. In other words, all the evidence which 3/ Public Service Company of Indiana (Marbl.e Hill Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977); Puget Sound Power and Light Company, (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572, 10 NRC 693, 694 (1979);

Public Service Electric and Gas Company, (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533, 534 (1980); Houston Lighting and Power Company, (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-635, 13 NRC 309, 310 (1981).

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the Board has allowed to be introduced must be weighted in light of the probability that the contract to supply effluent to Applicants is invalid.

Numerous witnesses have already testified in this proceeding about the cities' need for water, the ways in which the cities may be able to satisfy those needs, municipal exchanges of effluent with the Indians, and the building of subregional wastewater treatment plants.

All this evidence is useful only with an understanding of Agreement 13904 and how these issues may affect the parties' performances under the contract, or the enforcement of the contract in the event of a dispute between the parties.

Certainly the possibility of a court invalidating the contract is a crucial parameter in determing the importance of these other factors.

In this way this Board's exclusion of this issue from the proceeding affects the structure of the proceeding in a pervasive way.

In addition, the questions presented by In.ervenor for certification present " novel question [s] of policy and law" in light of the recent "S-3 decision." Although the full effect of the decision is not known, Licensing Boards were told clearly by the Court of Appeals to consider uncertainties about environmental effects which they had previously failed to address in licensing proceedings.

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11 Whether the possible invalidity of Applicants' contract for ef fluent is an uncertainty about environmental costs or merely a " legal uncertainty" and thereby unnecessary to consider, is of crucial importance to this proceeding.

This Board and all parties should welcome certification of these questions to the Appeals Board so that all may have a clear understanding of the effect of the "S-3 decision" on this particular proceeding.

Moreover, if the Appeals Board issues a definitive ruling on the issue prior to a final licensing decision the Board and the parties' resources will be preserved. This is especially true since these issues may be determinative in this Board's decision of whether or not Applicants have demonstrated an assured supply of water for the operation and safe shutdown of Palo Verde.

IV. CONCLUSION For the foregoing reasons, Intervenor respectfully requests this Board to direct certification of the two questions presented above to the Appeals Board for resolution prior to the close of these licensing proceedings.

Respectfully submitted, NLf%/M Lynne>Bernabel

_lchtda_1 M Harmon & Weiss 1725 I Street, N.W.

Suite 506 '

Washington, D.C. 20006 (202) 833-9070 Counsel for Intervenor DATED: June 21, 1982

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