ML20058G409
| ML20058G409 | |
| Person / Time | |
|---|---|
| Site: | Skagit |
| Issue date: | 07/30/1982 |
| From: | Thomsen F PERKINS, COIE (FORMERLY PERKINS, COIE, STONE, OLSEN, PUGET SOUND POWER & LIGHT CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8208030314 | |
| Download: ML20058G409 (30) | |
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UNITED STATES OF AMERICA
- NUCLEAR REGULATORY COMMISSION Dk3hED BEFORE THE ATOMIC SAFETY AND LICENSING BOARD , ..
In the Matter of )
AQ) ~g 4'109 PUGET SOUND POWER & LIGHT ) Docket Nos. STNt50-522 COMPANY, et al. ) STN 50'-523"'
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(Skagit/Hanford Nuclear Project, ) July 30, 1982 Units 1 and 2) ) ,
APPLICANTS' RESPONSE IN OPPOSITION TO COLUMBIA RIVER INTER-TRIBAL FISH COMMISSION'S MOTION FOR ADMISSION OF SECOND SUPPLEMENT TO PETITION TO INTERVENE I. Introduction On February 5, 1982, a notice was published in the Federal Register which stated that any person who has an interest which may be affected by the construction permit proceeding for the Skagit/Hanford Nuclear Project (S/HNP) may file a petition to intervene by March 8, 1982. 47 Fed. Reg. 5554. On May 5, 1982, the Columbia River Inter-Tribal Fish Commission (the Petitioner), purporting to represent the tribal governments of four Indian tribes, served an untimely Petition to Intervene (the Petition). On May 19, 1982 the Applicants submitted a response in opposition to the Petition,1 and on May 25, 1982, the NRC Staff also filed a response t,o the
' Applicants' Response in Opposition to Untimely Petition to Intervene by Columbia River Inter-Tribal Fish Commission [ Applicants' Response] (May 19, 1982).
8208030314 820730 PDR C
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r Petition. In a Memorandum and Order dated July 2, 1982, the Licensing Board noted several technical deficiencies in the Petition, including the absence of any showing that the petitioning " Fish Commission" is authorized to sign for the four tribal governments.8 On July 16, 1982, the Petitioner submitted a response to the Board's Memorandum and Order," a supplement to the petition to intervene,' and a motion for admission of the supplement.' The Response, Supplemental Petition, and Motion attempt to cure the technical deficiencies found by the Board, present new information regarding the Petitioner's lack of standing to intervene on behalf of the four Indian tribes, and include seventeen new contentions regarding potential aquatic impacts as a result of construction and operation of S/HNP.
The Applicants hereby submit their response in opposition to the Response, Supplemental Petition, and Motion.
"NRC Staff Response to Untimely Petitions to Intervene by the Columbia River Inter-Tribal Fish Commission and the Yakima Indian Nation [NRC Staff Response] (May 25, 1982).
' Memorandum and Order in Response to Petition to Intervene (1) By Columbia River Inter-Tribal Fish Commission; (2) By Confederated Tribes and Band of the Yakima Indian Nation (July 2, 1982).
' Response of the Columbia River Inter-Tribal Fish Commission to July 2, 1982, Memorandum and Order of the Atomic Safety and Licensing Board [ Response] (July 16, 1982).
' Columbia River Inter-Tribal Fish Commission's Second Supplement to Petition to Intervene [ Supplemental Petition]
(July 16, 1982).
' Columbia River Inter-Tribal Fish Commission's Motion for Admission of Second Supplement to Petition to Intervene
[ Motion] (July 16, 1982).
II. Standing of the Petitioner Throughout the entire Petition originally filed by the Petitioner, the Petitioner implied that it was a duly authorized representative of the tribal governments of four Indian tribes, and that the rights of the Petitioner and the tribes were coincident. For example, the Petitioner stated that the " Columbia River Inter-Tribal Fish Commission consists of the. wildlife committees of four Columbia River tribal governments. . . ." Petition, p. 1. Similarly, in the section of the Petition entitled " Nature of Petitioner's Interest" (Petition, pp. 1-3), Petitioner refers only to the treaty rights of the tribes " represented on the Inter-Tribal Fish Commission." More telling is the following quote:
Unless granted leave to intervene the ability of the Columbia River Inter-Tribal Fish Commission to protect treaty reserved rights to fish.and Wildlife, particularly anadromous fish including salmon and steelhead will be impaired and impeded. This forum constitutes the last available administrative forum in which the petitioner can protect its rights.
(Petition, p. 6; emphasis added.) Based upon these and similar statetaents on which the Applicants relied as an accurate representation of the Petitioner's rights and interests the Applicants did not object to the standing of the Petitioner to intervene in this proceeding. Applicants' Response, p. 3.
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f HoweveE, 1,t.now Appears that the Petitioner hacano'. legal , ;. //
relationship to thepIndia'r tribes. ~ The Petitione.r' "does not '
represent the ColumbiT Riv$r treaty, tribes," but irectead.is an e'
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" independent body".which merely " assists" in some of-the.
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4 the tribes;/ it has no treaty rights of ;its own, and.it,has no -
i authority 'to asseit the treaty rightdof' the tribes; rather; it
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Such an[ interest is nok 19 suf.ficient" basis for
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intervertion. t As the Supren,e Court hav , stated:
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'. . . a mere " interest in- a pgoblemdJ.no matter how; r l'ongstanding the interer.E andJno matter how i
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qualified the organization is in, evaluatinge the . ,
problem, is not sufficient by itself'to ren' der the "org'anizatidn " adverse,1y affected" or "agg;ieved",
within the meaning ofrthe APA. Th(Siert:a , Club is a
? arge and long-estalilished organiintion,' with a
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'"Clarificatio'n that the bolumbia River Inter-Tribal
- Fish Cammission Dens No't Repracent the Columbia River Treaty Tribes," Attact,inent-2;to Response of the Columbia, River Inter-Tribal rish Commission to Julp 2, 1982, Memorandum and Order of and T.,1 censing Board (July 16, 1982).
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,,e interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization however small or short-lived. And, if any group with a bona fled "special interest" could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so.
Sierra Club v. Morton, 405 U.S. 727, 739-40 (1972).This holding is applied in NRC proceedings. See, for example, Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613 (1976); Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 421-22 (1976); and Nuclear Engineering Co. (Sheffield, Illinois Low-Level Radioactive Nuclear Disposal Site), ALAB-473, 7 NRC 737, 742 (1978).
This is not to say that an organization may never have standing to intervene in NRC proceedings. An organization whose members are injured may represent those members in NRC proceedings. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 NRC l 328, 330 (1976). Standing in this representative capacity, however, turns on "whether the organization has established actual injury to any of (its] . . . members." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 40 (1976).
In this case, the petitioning organization (the Fish f
Commission) states that it is " composed of" (i.e. its members are) the Fish and Wildlife " Committees" of the four tribes.
Response, p. 2 and Attachment 1. Thus, the Petitioner is seeking to be admitted as the representative of four committees (and not as the representative of the tribes nor as the representative of any individual tribal members). Attachment 1 to Response. However, no showing has been made that any of the four committees has standing, either as an organization or as the authorized representative of any member who has standing.
Since the Petitioner has not identified any member who has an interest that may be affected by S/HNP, the Petitioner has no standing to intervene in this proceeding. Accordingly, both its original Petition and its Supplemental Petition should be denied. See Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 389-97 (1979).
III. Untimely Nature of the Petitions Both the original Petition and the Supplemental Petition were submitted after the date provided by the notice of hearing and after the special prehearing conferences of May 5, 1982.' Consequently, with respect to evaluating the right of
'It should be noted that the Supplemental Petition presented no arguments in support of the Petitioner's untimely I intervention, but only addressed lateness with respect to the new and amended contentions in the Supplemental Petition.
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p a the Petitioner to become a party, the factors delineated in 10 CFR 5 2.714(a)(1) governing untimely petitions must be considered. These factors are as follows:
(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 which 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.
A. Good Cause, if Any, for Failure to File on Time A notice of this proceeding was published in the Federal Register on February 5, 1982. This notice was legally sufficient to alert petitioners of this proceeding. Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3-and 4), LBP-79-21, 10 NRC 183, 192 (1979). Furthermore, on January 7, 1982, the Applicants served a copy of the Application for Site Certification / Environmental Report for S/HNP (Amendment Nc. 4) on the Petitioner.' Thus, the Petitioner had both constructive and actual notice that the
' Affidavit of Service (January 7, 1982). Previously, on June 2, 1981, the Applicants had met with a representative of the Petitioner and others in Portland, Oregon and briefed them on S/HNP. ASC/ER, p. 12.2.
Applicants intended to construct and operate a nuclear plant at the proposed site for S/HNP. The Petitioner makes no statement that it was not timely aware of the proceeding, nor could it.
The Petitioner has attempted to excuse its untimely filing by referring to its alleged participation in other activities, both judicial and nonjudicial in nature, a number of which transpired after the deadline for filing a petition.1' However, the Appeal Board has previously rejected just such an excuse:
In this respect, there is nothing unique about the '
tribes' situation. Participation in any complex adjudicatory proceeding--whether being conducted in the courts or before an administrative agency--is both time-consuming and a drain on the often limited resources of the participants. This being so, what the tribes (in common with the Cherokee [ALAB-440, 6 NRC 642, 644] petitioner) ask is that the
- universally accepted practice of prescribing j deadlines for intervention petitions be discarded by l this Commission in favor of a rule which would permit each prospective intervenor to decide for himself the precise time at which he should transfer his attention and resources from the pursuit of other concerns. We repeat the thought expressed in Cherokee
- were such a rule adopted the adjudicatory process likely would break down entirely. That consideration may explain why the tribes have not provided us with a single judicial or agency precedent in support of their "otherwise preoccupied" excuse.
Puget Sound Power & Light Co. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-552, 10 NRC 1, 6-7 (1979).
2' Petition, pp. 9-12.
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Finally, the Petitioner has implied that it is exempt from the Commission's rules on late filed petitions because it represents Indian tribes:
Also, it is apparent that were the United States to assert this petition solely on behalf of the Indian tribes no laches would effectively be asserted to bar the petition. The Indians have the same rights in this respect as does the government. In the Matter of Puget Sound Power 6 Light Company, 8 NRC 587, 597 f.n.9 (Nov. 24, 1978) citing United States
- v. Beehe, 127 U.S. 338 ( ), for the principle that the United States is not bound by any laches of their officers, however gross, in a suit brought by them as a sovereign government to enforce a public right or to assert a interest is established past all controversy or doubt.
Petition, p. 8. However, in citing this licensing board decision, the Petitioner fails to point out that the decision was vacated on appeal. The Appeal Board held that Indian tribes, just as any other petitioner, must satisfy the requirements of 10 CFR 5 2.714 in order to intervene in NRC proceedings after the filing deadline has expired. Puget Sound Power & Light Co. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-523, 9 NRC 58, 61-63 (1979). The Petitioner cannot escape the obligation to justify its untimely petition with the excuse that it is not subject to Section 2.714.
In short, the Petitioner has not offered any valid justification for its failure to file on time. As a result, its " burden of justifying intervention on the basis of the
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other factors in the rule is considerably greater." Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975); Virginia Electric & Power Co. (North Anna Station, Units 1 and 2), ALAB-289, 2 NRC 395, 398 (1975).
B. The Availability of Other Means Whereby the Petitioner's Interest Will be Protected As discussed previously, the Petitioner has not established that it has any cognizable interest which may.be affected by this proceeding. Consequently, this factor weighs against acceptance of the untimely petitions.
Petitioner has claimed that this proceeding is the last forum in which it can protect its academic interests in tribal treaty rights to fish and wildlife.21 This claim is patently without foundation.
A contemporaneous proceeding regarding S/HNP is presently ongoing before the State of Washington Energy Facility Site Evaluation Counsel (EFSEC).18 This proceeding includes applications for site certification, for a National Pollutant Discharge Elimination System (NPDES) permit, and for a Section 401 certification under the Federal Water Pollution 22 l
Supplemental Petition, p. 35.
- In re Puget Sound Power & Light Co. (Skagit/Hanford Nuclear Project), Application No. 81-1.
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Control Act, as amended. In particular, this proceeding encompasses issues related to the environmental impacts of S/HNP, including the effects of the project discharge on Columbia River water quality and fish.
Not only is the Petitioner aware of the existence of this proceeding,1' but it has filed a petition to intervene therein based upon a statement of interest essentially identical to that which appears in the instant Petition.1*
This petition has been accepted by EFSEC,15 and the Petitioner has already submitted unsworn oral and written statements on substantive evidentiary issues to EFSEC in the NPDES portion of the state proceeding.18 Thus, the Petitioner does have an i
i 1'The Petitioner implies that the EFSEC proceeding is not an adequate alternative because the state allegedly will not give the same consideration to the tribal treaty rights as the NRC and because the state is currently engaged in litigation against the tribes. Supplemental Petition, pp. 35-36. However, there is no reason to believe that EFSEC will not provide the Petitioner with a fair hearing, including any consideration which may be due to tribal fishing rights.
- Amended Petition to Intervene of Columbia River e Inter-Tribal Fish Commission (May 14, 1982).
- Order dated May 24, 1982.
l'It may be noted that the record in the NPDES proceeding has been closed. Hearing (June 2, 1982), Tr. 449.
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alternative means of protecting its interests and is actively pursuing this alternative. "
C. The Extent to Which the Petitioner's Participation May Reasonably be Expected to Assist in Developing a Sound Record The Petitioner expressly " recognizes that it has little specific expertise in the area of liquid effluent discharge from nuclear power projects. " Petition, p. 8. Although the Petitioner does state that it employs lawyers, fisheries biologists, and a civil engineer with credentials in Columbia River water management, the Petitioner has not identified the specific individuals in question or provided a statement of t
their qualifications.
Based upon the information provided by the Petitioner, it is not possible to verify whether the Petitioner's employees are capable of making any contribution to this proceeding. As the Appeal Board has previously held, a petitioner cannot demonstrate its ability to contribute to a proceeding simply by l
" Presumably, the Petitioner can also file suit in court to redress alleged violations of its treaty rights. The Petitioner admits as much. Supplemental Petition, p. 36.
"The Petitioner states that it is taking unidentified a steps to obtain such expertise. Petition, p. 8.
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alleging that its members have technical expertise without providing a " bill of particulars" to support such an allegation. Detroit Edison Co. (Greenwood Energy Center, Units 2 and 3), ALAB-426, 7 NRC 759, 764 (1978). Since the Petitioner has the burden of establishing its justification for untimely intervention, Duke Power Co. (Perkins Nuclear Station, Units 1, 2, and 3), ALAB-615, 12 NRC 350, 352 (1980), this factor must weigh against the Petitioner.
Finally, the Petitioner's principal concern relates to potential aquatic impacts resulting from construction and operation of S/HNP. This issue was considered in the NPDES proceeding for S/HNP to which the Petitioner was a party. The Petitioner offered no witnesses or other evidence in this proceeding, though it did make an unsworn statement. If the NPDES proceeding is indicative of the Petitioner's ability to contribute to a proceeding, it would appear that the Petitioner has little to commend itself.
D. The Extent to Which the Petitioner's Interest Will be Represented by Existing Parties As mentioned previously, the Petitioner has no cognizable interest which may be affected by this proceeding.
Consequently, this factor weighs against acceptance of the ,
untimely petitions.
e The Petitioner has submitted five contentions which adopt the contentions of the NRDC or NWF. Both of these intervenors are established national organizations, and there is no reason to believe that either will be unable to obtain a complete and thorough airing of the contentions which they have drafted and the Petitioner has adopted. Consequently, it may reasonably be expected that the present intervenors will adequately represent the Petitioner's academic interests as reflected in these contentions.
The Supplemental Petition contains seventeen new contentions regarding potential aquatic impacts from construction and operation of S/HNP. '
Although none of the other parties in this proceeding has expressed the level of concern reflected in these contentions, it sho' tid be noted that the subject of aquatic impacts was extensively discussed in the NPDES proceeding for S/HNP, to which the Petitioner was a party. Consequently, it is apparent that the Petitioner desires a "second bite at the apple." The Applicants submit that this is a factor which should be taken into account in deciding whether to overlook the untimely nature of the Petitioner's petitions.
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E. The Extent to Which the Petitioner's Participation Will Broaden the Issues or Delay the Proceeding Since five of the Petitioner's contentions merely adopt the contentions of existing intervenors, its participation on those contentions probably would not broaden the issues in this proceeding. However, the seventeen new contentions in the Supplemental Petition would extensively broaden the issues in this proceeding and inevitably inject delay into this proceeding if the parties are required to try these contentions at the hearing. Consequently, this factor weighs against acceptance of the untimely contentions.
F. Balancing of the Five Factors None of the five factors weighs in favor of the untimely admission of the Petitioner as a party to this proceeding.
Consequently, both the original Petition and the Supplemental i
Petition should be denied.
l IV. Contentions The Petitioner has submitted two sets of contentions.
l The Petitioner's contentions numbered one through five adopt contentions submitted by other parties. The Petitioner's contentions lettered A through Q are new and pertain to potential aquatic impacts. Each is discussed below.
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Contentions 1 and 2 (various NRDC Contentions)
The substance of these contentions has previously been accepted by the Board," and the Applicant have no objection to their admission.
Contention 3 (NWF/OEC Contention 3)
The Board has only accepted parts A through D of NWF/OEC Contention 3 and has implicitly rejected the remaining parts.8' A similar disposition is appropriate here.
Contention 4 (NWF/OEC Contention 5)
The Board has rejected NWF/OEC Contention 5,22 and a similar disposition is appropriate here.
Contention 5 (NWF/OEC Contention 4)
The Board has deferred acceptance of this Contention over
- the objections of the Applicants and NRC Staff.22
" Memorandum and Order (July 6, 1982),pp. 2-3.
'Id., p. 2.
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Id., p. 3.
22 Id., p. 4.
Contention A This Contention alleges that the Applicants and NRC Staff have not considered all of the contaminants in the Columbia River and the impact which these contaminants will have after concentration in S/HNP.
Both the Applicant and the NRC Staff considered the contaminants of importance in the Columbia River.*' Although trace amounts of other contaminants may exist in the Columbia River, the Petitioner has offered absolutely no basis for concluding that the amounts of such contaminants are sufficiently high to pose any threat to aquatic life following concentration by S/HNP. Consequently, this contention should '
be rejected.
l Contention B l
This contention alleges that the Applicants' model of the i project discharge plume did not consider the effects of l
variations in river velocity and turbulence.
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8' Application for Site Certification / Environmental "
Report (ASC/ER) for S/HNP, Table 5.3-1; Draft Environmental Statement (DES) for S/HNP, Table 4-7.
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Initially, it should be noted that the Applicants have accounted for the river velocity, and changes in that velocity, i
in their model. See ASC/ER, pp. 5.1-4 to 5, Table 5.1-1. The Petitioner's claim to the contrary is without basis.
Moreover, to the extent that the Petitioner is arguing that dispersal of the discharge plume would be greater than
- that calculated by the Applicants, the Petitioner has provided
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no basis for contending that such an effect would be detrimental. In fact, greater dispersal would decrease the concentrations and incremental temperatures of the plume, l thereby reducing any effects which the plume might have upon fish encountering the plume.
- Consequently, this contention should be rejected.
l 2'The Petitioner argues that increased dispersal would increase the number of fish which would encounter the plume.
However, the Applicants have demonstrated that even the discharge plume calculated by Applicants will not have a significant effect upon fish encountering the plume, ASC/ER, Sections 5.1.3.2.4 and 5.3.1.2.
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Contention C This contention states that the details of sulfuric acid feed for pH control for the circulating water system have not been provided. The Petitioner then contends that until such details are provided, the magnitude of corrosion of the circulating water system and any resultant threat to fish cannot be determined.
The Applicants have committed to maintaining the pH of the circulating water between 6.5 and 8.5. ASC/ER, p. 3.6-4.
The Petitioner does not allege that this range would cause corrosion or would threaten fish. Instead, the Petitioner alleges that it cannot determine whether the Applicants will be e able to maintain this range absent details regarding the pH control system.85 However, the Applicants are not required l to provide details regarding final design at the construction permit stage. Consequently, this contention should be rejected.
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8' Petitioner cites 47 Fed. Reg. 24535 for the proposition that "no industrial plant examined consistently achieved 100 percent compliance with pH limitations on a monthly basis." However, as this page clearly indicates, the #
pH control which was the subject of the examination dealt with
" extremely acidic or basic individual excursions, i.e., below pH 35 or above pH 11." Petitioner provides no basis for .
arguing that this examination is relevant to S/HNP.
Contention D This contention takes issue with a statement in the DES that trace metals would not be introduced into the project discharge from corrosion of the stainless steel condensor tubes. As a basis for this contention, the Petitioner alleges that corrosion resistance is related to pH and chloride concentration and that inadvertent exposure of stainless steel to dilute sulfuric acid has been shown to result in heavy material losses.
The Petitioner's basis for this contention has not been related to S/HNP. The Petitioner has not alleged that the pH, chloride concentration, or sulfuric acid concentration at S/HNP will be sufficiently high to cause corrosion, but only that some undefined levels of pH, chloride concentration, and sulfuric acid concentration have been sufficient in other circumstances to cause corrosion. Since the Petitioner has provided no basis for contending that the conditions at S/HNP will result in corrosion, this contention should be rejected.
Contention E This contention alleges that efforts are under way to rebuild the fall chinook population and that the ASC/ER and the DES do not " reflect the impact that the S/HNP may have on efforts to rebuild the depressed fall chinook population of the Hanford Reach."
The Petitioner has provided no basis for alleging that S/HNP will interfere with any efforts to rebuild the fall chinook population. To the extent that this contention is 2
alleging that S/HNP will affect fall chinook which are introduced into the Columbia River as a result of a rebuilding effort, this contention is encompassed by other contentions, and it should be rejected as a separate contention.
Contention F This contention criticizes the ASC/ER and DES for the qualitative discussion of migration patterns of salmon and steelhead, and it suggests that studies should be performed to provide precise estimates of the number and location of these migrating fish.
l There is no requirement under the National Environmental Policy Act (NEPA) or the Commission's regulations that additional studies be initiated to provide the information requested by the Petitioner. Both the DES (p. 4-63) and the ASC/ER (p. 5.1-15) reference studies which have previously been performed indicate that migrating salmonids prefer shoreline areas and are not expected to frequent the proposed discharge location. The Petitioner has provided no basis for questioning this conclusion, and the Applicants and NRC Staff have taken the requisite "hard look" at the issue under NEPA's
" rule of reason". See NRDC v. Morton, 458 F.2d 827, 834, 837-38 (D.C. Cir. 1972). Consequently, this contention should be rejected.
Contention G This contention alleges that the Applicants and NRC Staff have not considered pre-existing stresses on fish from dams and other projects.
This contention is without basis. The ASC/ER and the DES have sections devoted to this very subject. See ASC/ER, Section 2.2.2.8; DES, pp. 4-53 to 4-55. The Petitioner has not identified any error in these sections. Consequently, this contention should be rejected.
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l Contentions H and I I
l The Applicants have no objection to the admission of these contentions.
Contention J e
This contention alleges that Indian treaty rights to fish have not been specifically considered. This contention is l
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without basis. See ASC/ER, Section 8.4. Moreover, there is no requirement under NEPA that this subject be considered independently of any potential impacts from S/HNP. To the extent that the Petitioner is alleging that S/HNP will impact fish, and consequently allegedly affect treaty fishing rights, this contention is encompassed by other contentions, and it should be rejected as a separate contention.
Contention K This contention alleges that data has not been presented regarding the constituents of the river bottom to allow for an adequate evaluation of the effects of construction of the intake and discharge structures.
The contention that data has not been presented on the
- constituents of the river bottom is without basis. See ASC/ER, Section 2.4.1.1.2, Tables 2.4-7, 2.4-8, and 2.4-9. The Applicants and NRC staff have concluded that releases of this material during construction would have minimal impact.
ASC/ER, p. 4.1-10, DES, p. 4-36. Petitioner has provided no basis for contesting this conclusion. Consequently, this contention should be rejected.
Contention L This contention alleges that water withdrawals by S/HNP from the Columbia River "could preclude maintenance of recommended minimum flows for the Hanford Reach."
The minimum regulated flow at Priest Rapids Dam (located immediately upstream of the Hanford Reach) is 36,000 cfs. The maximum design water intake for S/HNP is 93.6 cfs, which is only 0.26 percent of the minimum regulated flow and only 0.08 percent of the median river flow. ASC/ER, pp. 3.3-1 and 5.1-3. No measurable difference in water elevations or river velocities and no adverse impact upon anadromous fish will occur as a result of water consumption by S/HNP. ASC/ER,
- p. E-120. Petitioner has not alleged that any of these figures or conclusions are incorrect. Consequently, this contention should be rejected.
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Contention M This contention argues that it is not possible to evaluate the impacts of construction of the intake and discharge structure absent details regarding the Applicants' construction impact control program.
This contention is specious. The impacts of construction of the intake and discharge structures are discussed in the DES (p. 4-36) and the ASC/ER (p. 4.1-10). Inclusion of additional mitigative measures in a construction impact control program would only serve to reduce the impact described in the ASC/ER and DES. Thus, both the DES and ASC/ER present a conservative analysis, and this contention should be rejected.
Contention N This contention alleges that the Applicants and NRC Staff should have considered bioconcentration in fish of metals discharged by S/HNP.
Trace metals will not be introduced into the Columbia River as a result of plant operation, and the project discharge will only contain those metals originally present in the Columbia River. ASC/ER, p. 5.3-7. The Petitioner has provided no basis for concluding that operation of S/HNP will have any effect upon bioconcentration of metals by fish. Consequently, this contention should be rejected.
I Contention o i
This contention alleges that the aquatic biomonitoring l
program for S/HNP will be inadequate because static shimonid bioassays will only be required for one year following startup
of each unit and because the biomonitoring stations located near the discharge location will only collect benthic invertebrates.
This contention should be rejected. The Petitioner has provided no basis for requiring the use of static salmonid bioassays at any time during plant operation, let alone for periods longer than one year after startup of each unit.
Furthermore, available information indicates that juvenile salmonids prefer shoreline locations. ASC/ER, p. 5.1-15. The Petitioner has offered no basis for questioning the validity of this information. Consequently, the Petitioner has offered no basis for contending that monitoring should be undertaken for midriver locations that fish are not expected to frequent.
I Contention P This contention alleges that the NRC staff has not considered the impacts upon fish as a result of accidents at l S/HNP, either through groundwater movement of radioactivity or l
inadvertent radioactive releases through the project discharge pipe.
The NRC staff has analyzed groundwater movement following an accident at S/HNP and has concluded that radioactive .
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releases to the groundwater would not pose a uniquely large contribution to risk due to the relatively slow migration radioactivity in the ground. DES, p. 4-218. The Petitioner has provided no basis for considering further the impacts of such accidental releases.
Similarly, the NRC staff was completely justified in not considering the impacts of inadvertent releases through the project. discharge, because the Applicants have taken measures to prevent such inadvertent releases. A removable pipe spool piece will be removed from the liquid radwaste line to the S/HNP discharge line thereby precluding radioactive discharges, and it will be installed only for those infrequent occasions when excess plant water must be released. ASC/ER, p. 3.5-8.
This contention should be rejected as being without basis.
Contention Q This contention alleges that the openings in the intake pipe should be limited to 1/8" openings.
The Petitioner has provided no basis for concluding that the 3/8" openings proposed by the Applicants will be insufficient to provide adequate protection for fish.
Significantly, the Petitioner does not question the Applicants' analysis which concludes that no significant adverse impact on fish will result from use of an intake with 3/8" openings. See
ASC/ER, Section 5.1.3.1. Furthermore, the Petitioner has provided no basis for concluding that a modification using 1/8" would provide any material level of additional protection.
Consequently, this contention should be rejected.
V. Conclusion The Petitioner has asserted no interest which may be affected by this proceeding other than an academic interest in tribal treaty rights. Moreover, a balancing of the five factors of 10 CFR $ 2.714(a)(1) veighs against acceptance of the untimely petitions. Consequently, the Petition and Supplemental Petition should be denied for either or both of these reasons. '
DATED: July 30, 1982.
Respectfully submitted, PERKINS, COIE, STONE, OLSEN & WI LIAMS B A c.A W F. Theodore Thomsen Attorneys for Applicants 1900 Washington Building Seattle, Washington 98101 Phone (206) 682-8770 Of Counsel:
David G. Powell Steven P. Frantz '
Lowenstein, Newman, Reis & Axelrad 1025 Connecticut Ave., N.W.
Washington, D.C. 20036 (202) 862-8400
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
PUGET SOUND POWER & LIGHT COMPANY, ) DOCKET NOS.
et al. )
) STN 50-522 (Skagit/Hanford Nuclear Project, ) STN 50-523 -
Units 1 and 2) )
)
CERTIFICATE OF SERVICE I hereby certify that the following:
APPLICANTS' RESPONSE IN OPPOSITION TO COLUMBIA '
RIVER INTER-TRIBAL FISH COMMISSION'S MOTION FOR ADMISSION OF SECOND SUPPLDIENT TO PETITION TO INTERVENE l
in the above-captioned proceeding have been served upon the persons shown on the attached list by depositing copies thereof in the United States mail on July 30, 1982 with proper postage affixed for first class mail.
(
DATED: July 30, 1982
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.- . . u _ AC ' t -s d (71: I ' -C F. Theodore Thomsen Attorney for Puget Sound Power &
Light Company 1900 Washington Building Seattle, Washington 98101
SRAGIT/HANFOID CUCLEAR PROJECT DATE July 30, 1982 NRC Service Lict e
Docket Noa. STN 50-522 end S11e 50-523 COpetISSION NRC STAFF APPLICANTS (cont.)
Secretary of the comuniosion Richard L. Black, Esq.
Docketing and Service Branch Warren G. Mastings, Esq.
U.S. Nuclear Regulatory Comunission Counsel for the NRC Staff Associate Corporate Counsel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Office of the Executive Legal Portland General Electric Company Director 121 S.W. Salmon Street LICENSING BOARD washington, D.C. Portland, OR 97204 20555 John F. Wolf, Esq., Chairman Richard D. Bach, Esq.
Administrative Judge IN1TRESTED STATES AND COUNTIES Stoel, Rives, Boley, Fraser & Wyse Atomic Safety and Licensing Board Washington Energy Facility Site 2300 Georgia Pacific Building 3409 Shepherd Street 900 S.W. Fifth Avenue Chevy Chase, MD 20015 Evaluation Council Portland, OR 97204 Nicholas D. Lewis, Chairman Mail Stop PY-11 Dr. Frank F. Nooper Olympia, WA 98504 OTHER Administrative Judge Atomic Safety and Licensing Board Revin M. Ryan, Esq. Nina Bell, Staff Intervenor School of Natural Resources Washington Assistant Attorney Coalition for Safe Power University of Michigan General Suite 527, Governor Building Ann Arbor, MI 48190 Temple of Justice 408 S.W. Second Avenue Olympia, WA 98504 Portland, OR 97204 Mr. Gustave A. Linenberger Administrative Judge Frank W. Ostrander, Jr. , Esq. Ralph Cavanagh, Esq.
Atomic Safety and Licensing Board Oregon Assistant Attorney General Natural Resources Defense Council U.S. Nuclear Regulatory Commission 500 Pacific Building 25 Rearny Street Washington, D.C. 20555 520 S.W. Yamhill San Francisco, CA 94108 Portland, OR 97204 APPEAL BOARD Terence L. Thatcher, Esq.
Bill Sebero, Chairman NWF and OEC Alan S. Rosenthal, Chairman Benton County Commissioner 708 Dekum Building Atomic Safety and Licensing P.O. Box 470 519 S.W. Third Avenue Appeal Board Prosser, WA 99350 Portland, OR 97204 U.S. Nuclear Regulstory Comunission ,
Washington, D.C. 20555 APPLICANTS Attorney for Columbia River Dr. John H. Buck, Member Inter-Tribal Fish Conunission Atomic Safety and Licensing F. Theodore Thomsen '
Appeal Board Perkins, Cole, Stone, N Sandy Blvd U.S. Nuclear Regulatory Comunission Olsen & Williams Portland, OR 97220 Washington, D.C. 20555 1900 Washington Building James B. Novis Seattle, WA 98101 Yakima Indian Nation Michael C. Farrar, Member David G. Powell, Esq. c/o Hovis, Cockrill & Roy Atomic Safety and Licensing Lowenstein, Newman, Reis & Axelrad 316 North Third Street Appeal Board P.O. Box 487 U.S. Nuclear Regulatory Conomission 1025 Connecticut Avenue N.W.
Washington, Yakima, WA 98907 Washington, D.C. 20555 D.C. 20036 James W. Durham, Esq. Canadian Consulate General Senior Vice President Donald Martens, Consul General Counsel and Secretary 412 Plaza 600 Portland General Electric Company 6th and Stewart Street Seattle, WA 98101 121 S.W. Salmon Street Portland, OR 97204 7-26-82
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