ML20062H469
| ML20062H469 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 08/12/1982 |
| From: | Lazo R Atomic Safety and Licensing Board Panel |
| To: | HOURIHAN, P. |
| References | |
| ISSUANCES-OL, NUDOCS 8208160062 | |
| Download: ML20062H469 (9) | |
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UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION ..
ATOMIC SAFETY AND LICENSING BOARD f bh7 E
k?n'gTf,,5ECRETAR Before Administrative Judges: ggj[CH CE Robert M. Lazo, Chairman Dr. Richard F. Cole Dr. A. Dixon Callihan SERVED AUG131982 In the Matter of Docket Nos. STN-50-528-0L
) STN-50-529-0L ARIZONA PUBLIC SERVICE COMPANY, ET AL. ) STN-50-530-OL
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(Palo Verde Nuclear Generating Station,) August 12, 1982 Units 1, 2 and 3 Operating License Proceeding)
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MEMORANDUM AND ORDER (Denying Intervenor's Petition for Directed Certification Pursuant to 10 CFR 2.718(i))
On June 21, 1982, Intervenor, Patricia Lee Hourihan, petitioned the Licensing Board for directed certification, pursuant to 10 CFR 2.718(1), of two evidentiary rulings made during the operating license proceeding for Palo Verde Units 1, 2 and 3. The Board has determined that the Intervenor has not met the standard: for directed certifications as set forth in 10 CFR Part 2, App. A(V)(f)(4) and interpreted by the Appeal Board.
Accordingly, Intervenor's petition for directed certification is denied.
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BACKGROUND Intervenor asks that the Licensing Board direct two 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 Pimg-Maricopa Indian Community lawsuit on Applicants' contract for effluent?l' On April 27, 1982, the Licensing Board made an oral ruling declining to examine the validity of the. Applicant's contract for effluent. Tr. 346.
The Board also denied the admissibility in this proceeding of the ' potential effects of the lawsuit field by the Pima-Maricopa Indian Community against the Department of the Interior. I d_. On May 14, 1982, Counsel for the Intervenor filed a motion asking the Board to reconsider its ruling.
Following oral argument (Tr. 985-1012), the Board on May 26, 1982 made a brief oral ruling confirming the conclusions reached in its earlier decision. Tr. 1269. A written Memorandum and Order explainir.g the Board's reasonsfordenyingthemotionfollowed.b Intervenor raises these
--1/ Intervenor's Petition for Directed Certification Pursuant to 10 CFR 2.781(i) at 8 (June 21, 1982) 2,/ Memorandum and Order, LBP-82-45, 15 NRC (June 4,1982)
issues again in her Petition for Directed Certification. She additionally objects to the Board's refusal to admit the testimony of Mr. John Leshy, a law professor at Arizona State University, with respect to 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 water for the Salt River Valley.3/ The Chairman had ruled that Mr. Leshy's testimony would amount to a legal opinion, which was not suitable as expert testimony in this proceeding. Tr. 1570.
Applicant and Staff, individually, filed answers to Intervenor's petition, asking the Licensing Board to deny the petition on the ground that Intervenor has not met the standards for directed certification under10CFR2.718(i).S/
DISCUSSION The authority for an Atomic Safety and Licensing Board to certify questions to the Commission comes from 10 CFR 2.718(i), which states that the presiding officer has the power to:
3/ Intervenor's Petiton at 5 4/
Applicants' Response To Intervenor's Petitions For Directed Certification Pursuant to 10 CFR 2.718(i) (July 16, 1982); Staff's Answer to Intervenor's Petition for Directed Certification (July 15, 1982).
...(i) Certify questions to the Commission for its determination, either in his discretion or on direction of the Commission.
The standard to be used in determining whether certification is appropriate is found in 10 CFR Part 2, App. A (V)(f)(4):
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 is involved which cannot be resolved except by the Commission or by the Appeal Board and when a prompt and final decision of the questions is important for the protection of the public interest, or to avoid undue delay or serious prejudice to the interests of a party.
The availability of directed certification is an exception to the Commission's general rule against interlocutory appeals which appears at 10 CFR 2.730(f) and, as such,'is to be resorted to only in "except.ional circumstances." Consumers Power Company (Midland Plant, Units 1 and 2),
ALAB-382, 5 NRC 603, 606 (1977). The Appeal Board has emphasized that its directed certification authorit'y "will be exercised most sparingly."
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406, 410 (1978). Almost without exception, the Appeal Board has undertaken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal
or (2) affected the basic structure of the proceeding in a pervasive or unusual manner. Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977) N Intervenor's request for directed certification does not meet these standards. Intervenor does not contend that a denial of certification would have an irreparable impact on the proceedings that could not be alleviated by an appeal. As the Staff points out,6_/ the record in this proceeding is closed. The effect on all parties of reopening the record to hear additional testimony would be virtually identical whether the record were to be reopened immediately or after appellate review were completed. The Appeal Board has specifically stated that it would not grant certification when "the most that can be said is that, if on review
~~5/ Accord, Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-641, 13 NRC 550, 551 (1981);
Houston Lighting and Power Company (South Texas Project, Units 1 and 2), ALAB-637, 13 NRC 367, 370 (1981); Houston Lighting and Power Company (Allens Creek Nuclear Generating Station), ALAB-635, 13 NRC 309, 310 (1981); Houston Lighting and Power Company (South Texas Project, Units 1 and 2), ALAB-608, 12 NRC 168, 170 (1980);
Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-593), 11 NRC 761, 762 (1980); Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533, 536 (1980); Pucet Sound Power and Light Company (Skagit Nuclear Power Project, lnits 1 and 2),
ALAB-572, 10 NRC 693, 694 (1979); Offshore Power Systems (Floating Nuclear Power Plants), ALAB-517, 9 NRC 8, 11 (1979).
6] Staff's Answer at 4.
of the eventual initial decision we should conclude that the Board below was wrong, a new hearing might have to be ordered." Toledo Edison Company, (Davis Besse Nuclear Power Station, Unit 1), ALAB-314, 3 NRC at 99.
Intervenor contends that the Licensing Board's exclusion of testimony concerning the validity of the Applicants' contract for effluent affects the structure of the proceeding in a pervasive manner, thussatisfyingthesecondMarbleHillcriterion.2/ Specifically, Intervenor objects to the Licensing Board's refusal to receive the testimony of Mr. Leshy and the Board's refusal to consider the effects of the lawsuit brought by the Pim.a Maricopa Indian Community against the Department of the Interior on the validity of Applicants' contract' for effluent. This testimony is crucial, Intervenor argues, to the determination of other issues in this proceeding regarding the availability of effluent for Palo Verde. Ijiat10.
The Appeal Board has stated that certification will not be granted, absent exceptional circumstances, on questions of what evidence is permissible. Toledo Edison Company, 3 NRC at 99. These matters are for the Licensing Board to determine. This Board has stated the reasons why it has determined that admission of this testimony would not further the #
proceeding. ,
7/ Intervenor's Petition at 10.
9 On May 27, 1982, the Chairman ruled from the bench that it did not consider Mr. Leshy to be an appropriate witness for this proceeding. Tr.
1570. Mr. Leshy is a professor of law, and was formerly an attorney at he Department of the Interior. The Board has determined that Mr. Leshy's testimony would constitute a legal argument, not a technical opinion.
Expert testimony on the law is not relevant to this proceeding. Tr.
1568. As the Intervenor herself has pointed out, many 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 subregionalwastewatertreatmentplants.E Thus, the proposed scope of Mr. Leshy's testimony has been adequately covered. As the' Staff notes, legal interpretations are properly presented in Intervenor's brief, rather than on the witness stand.1I Intervenor's contention that the Licensing Board's refusal to hear testimony on the Pima-Maricopa Indian lawsuit affects the structure of the proceeding in a pervasive manner is similarly without merit, as is the claim that this refusal presents " novel questions of policy and law" in light of the recent decision in Natural Resources Defense Council v.
Nuclear Regulatory Commission, No. 74-1586 (D.C. Cir. April 27,1982)
(NRDC v NRC) . As the Board stated in its Memorandum and Order of June 4, 1982, setting forth its reasons for its refusal to admit this 8_/ Intervenor's Petition at 10.
9/ Staff Answer at 5.
testimony, the Pima-Maricopa Indian lawsuit is currently being litigated inFederalDistrictCourt.$ It is not the job of this Licensing Board to second-guess the outcome of a pending lawsuit, as the Intervenor would have us do. Intervenor misinterprets the court's holding in NRDC v NRC to prevent Licensing Boards from proceeding until all uncertainties are removed and every potential environmental effect is known. This interpretation, as both this Board and the Staff have pointed out, is clearlycontrarytoestablishedprinciplesoflaw.S The D.C.
Circuit has adopted the 9th Circuit 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 environemntal effects were known, it is doubtful that any project could ever be initiated." Jicarilla Apache Tribe of Indians v. Morton, 47 F.2d 1275, 1280 (9th Cir. 1973), quoted 3 State of Alaska v. Andrus, 580 F.2d 465, 473 (D.C. Cir.), vacated,in part, sub nom., Western Oil and Gas Association v. Alaska, 439 U.S. 922 (1978) (emphasis added by the D.C. Circuit). Thus, no " novel question of policy and law" is presented.
R/ Memorandum and Order at 4 (June 4, 1982)
H/ Memorandum and Order at 5-6; Staff Answer at 7, 7n.6.
9-For the foregoing reasons and in consideration of the entire record in this matter, it is this 12th day of August, 1982 ORDERED .
That Intervenor's Petitions for Directed Certification Pursuant to 10 CFR 2.718(i), dated June 21, 1982, is denied.
4 FOR THE ATOMIC SAFETY AND LICENSING BOARD
- Robert M. Lazo, Chairman
! ADMINISTRATIVE JUDGE l -
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