ML20117K003
| ML20117K003 | |
| Person / Time | |
|---|---|
| Site: | Prairie Island  |
| Issue date: | 05/01/1996 |
| From: | Shumaker G MINNESOTA, STATE OF |
| To: | NORTHERN STATES POWER CO. |
| References | |
| NUDOCS 9609110080 | |
| Download: ML20117K003 (11) | |
Text
,SEP-04-98 WED 12:33 NSP RATE DEPT FAX NO. 8123307801 P 02 0 .
7D-18 5 . FILE COPY I STATE OF MINNESOTA DISTRICT COURT COUNTY OF RAMSEY ,, SECOND JUDICIAL DISTRICT !
File No. 62-C1-96-180 1
l State of Minnesota by Florence Township, ,
Plaintiff, vs. DRDER AND MEMOBANDDH Northern States Power Company, a Minnesota corporation; Minnesota Environmental Quality Board; Minnesota Public Utilities l Commission; and Goodhue County, Defendants.
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1 On April 24, 1996, the undersigned judge of the district court heard the motions by all defendants to dismiss this action; motions by ESP, the Public Utilities Commission and the Environmental Quality Do4*d for prot 00tivo orders pertaining l to discovery; and the plaintiff's motion for a temporary l l
injunction.
l The attorneys were Carol A. Overland for the plaintiff;
- Peter A. Koller and Michael J. Ahern for Northern States Power k th 9609110080 960501 PDR ADOCK 05000282 G PDR
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Company; Alan R. Mitchell, Assistant Attorney General, for the Minnesota Environmental Quality Board; Hargia Hendriksen, l Assistant Attorney General, for the Minnesota Public Utilities Commission; and Gary Fridell, County Attorney, for Goodhue County.
Upon the attorneys' respective arguments, the entire court record, and the attached memorandum, IT IS HEREBY ORDERED that:
- 1. The motions of the defendants, and each of them, to dismiss this action are granted, and this action and all claims assarted herein are dismissed without prejudice, but without an award of costs and disbursements.
l 2. The plaintiff's motion for a temporary injunction is denied.
- 3. All other motions are denied.
l LET JUDOMENT OF DISMISSAL WITHoUT PREJUDICE BE ENTERED without further stay.
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DN W. SHIDUdE8R Judge of District Court DATED: This 1st day of May, 1996 j
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MEMORANDUM l
Northern States Power Company (NSP) owns and operates a l nuclear power generating plant at Prairie Island in Goodhue County, Minnesota. As part of its operation NSP stores spent nuclear fuel assemblies. It is required to continue to do so until the United States Department of Energy removes them.
All spent nuclear fuel is currently stored at the site of NSP's two nuclear reactors at Prairie Island. Until 1995 the spent fuel assemblies were stored in water pools. In 1994, the Minnesota legislature authorized NSP to uso a limited number of dry casks for spent fuel storage. Dry cask storage began in 1995.
As a condition to being allowed to uso more dry casks NSP was required by the legislature to develop an alternate storage site in Goodhue County. NSP's alternate site proposal has precipitated this lawsuit and the plaintiff's instant motion for a temporary injunction.
The spent nuclear fuel in question is classified by law as high-level radioactive waste.. Minn. Stat. Sec. 116c.705. As such its storage and transportation are intensively regulated.
In Minn. Stat. Soc. 116C.00, Subd. 2 the legislature provided that a public utility (NSP) cannot construct a dry cask storage facility on an alternate Goodhue County site until it l
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SEP-04-93 WED 12:35 NSP RATE DEPT FAX N0. 6123307601 P.05 obtains from the Environmental Quality Board (ros) a certificate attesting that the alternate site is comparable to the Prairia Island storage site.
By virtue of scetion 116C.80, Subd. 3 the EQB must
- review siting procedures established in the Minnesota Power Plant Siting Act, Minn. Stat. Sec. 116C.52, et seq., and, after a period designated for public comment, must develop procedures and rules for siting the storage facility and for issuing a ;
certificate of compatibility. The subdivision further states: l "The siting procedures and considerations must provide for an opportunity for all interested persons to participate."
on July 20, 1995, NSP applied to the EQB for a j
certificate of site compatibility proposing two alternative sites in Florence Township.
ordinarily such an application would be accompanied by a certificate of need issued by the Public Utilities Commission (PUC) because Minn. Stat. Sec. 216B.243, subd. 2 provides in part as follows: "No large energy facility shall be sited or 1
constructed in Minnesota without the issuance of a certificate '
of need by the commissioner . ...
In this case, however, the PUC determined that a 1 certificate of need was not required. Its determination was based on an interpretation of Minn. Stat. Sec. 116C.77, the legislation that approved and ratified the cei:tificate of need 4
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granted NSP relative to the Prairie Island site. The statute l contains language that arguably supports an inference that the l legislature intended that a second certificate of need would not
! be necessary.
The EQB accepted NSP's application and authorized the formation of a site advisory task force. The task force's report, dated January 1996, is part of the court record.
The EQB has taken no further action on NSP's application. Various administrative steps must be taken before the EQB may properly rule on the propriety of issuing the requisite certificate. These steps include the preparation of an Environmental Impact Assessment (EIA), opportunities for public hearings and comments, and possible proceedings before an I administrative law judge.
Florence Township commenced this action under Minn.
Stat. Sec. 116B.01, et seq., the Minnesota Environmental Rights Act (MERA), alleging that the defendants have violated that act, and other laws in various respects and have deprived the l township of due process of law. The township's claims appear to be divisible into two broad categories, namely, specific j
violations of specific statutes and rules, and the failure to ensure adequate and meaningful public participation in the siting process. The substantive and procedural due process l claims envelop those categories.
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It is not necessary to list all of the irregularities the plaintiff attributes to the defendants. It is sufficiant to highlight a few of them.
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NSP privately developed siting criteria and standards, I
and conspired with certain other defendants to limit public !
participation in the siting process.
- 2. The EQB failed to properly develop siting criteria, failed to provide for timely public participation, and violated the law by not requiring NSP to obtain a certificate of need. l
- 3. The PUC violated the law by not requiring NSP to obtain a certificate of need for the Florence Township sites.
- 4. Goodhue County conspired with NSP to limit public participation in the siting process, actively lobbied for NSP, gave advice to NSP regarding a public advicory oommittee, and l
failed in its duty to ensure that state environmental policy is 4 implemented.
Florence Township seeks a declaratory judgment determining that the defendants have violated the law in these, and in other, respects; and a temporary preventive injunction prohibiting the defendants from continuing with the current siting process; and a temporary mandatory injunction requiring the defendants to comply with all laws respecting siting of a new storage facility, particularly with the laws that require public hearings and participation.
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i j The matter of the storage of radioactive spent nuclear I fuel raises profound concerns about public safety, public health, the protection of the environment and socioeconomic rights and privileges. These concerns potentially have impact not only on the residents of Florence Township and Goodhue county but on all people in Minnesota.
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t The siting process ought to be carefully and strictly regulated and the utmost caro should be exercised in interpreting and applying applicable regulatory statutes and
- rules.
4 Despite the gravity of concern over these matters and the indisputably critical importance of the issues, this court 1
- is compelled by law to dismiss the action in its entirety and, necessarily, to deny the plaintiff's request for injunctive relief.
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This lavault is premised on Minn. Stat. Sec. 116B.03, Subd. 1, which establishes a civil cause of action ". . . for the protection of the air, water, land, or other natural resoureco located within the state . . . from pollution, inpairment, or destruction . . . . "
In order to achieve such protection the statute authorizes declaratory and equitable relief.
At this point the plain' tiff's action is only hypothetical and is in the nature of a preemptive strike.
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SEP-04-96 WED 12:36 NSP RATE DEPT FAX N0. 6123307601 P,09 At this point there is no pollution, impairment or destruction against which protection,is necessary. There is merely an application under consideration in a relatively early stage in the administrative process. Furthermore, there' exists no genuine threat of pollution, impairment or destruction which would support a course of action under MERA. To be genuine a threat must be capable of being readily transformed into some deleterious activity. That is not the case here.
The EQB has not made a decision on NSP's application and it cannot do so until an EIA has been completed and
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additional administrative steps have been taken. No one knows what the EQB will do.
It is possible that the EQB will decline to issue the l
certificate, in which event even the plaintiff's hypothetical cause of action will evaporate.
It is also possible that the EQB will decide to issue the certificate. That decision will De subject to both administrative and judicial review before any tangible action '
may be taken by NSP. During the review process errors, if any, can be corrected. If errors have occurred and have been egregious, the entire process can be declared a nullity.
As an example of a clear safoguard available to protect the plaintiff's rights, one may look to the ultimate right to judicial review. If we assume for the saxe of illustration that 4
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SEP-04-96 WED 12:36 NSP RATE DEPT FAX NO. 8123307801 P.10 the PUC's interpretation of the statute regarding the requirement or a second certificate of need is incorrect, the court of appeals would be required to reverse the EQB's decision j to grant a certificate. Such a decision would have been based on an error of law. See Minn. Stat. Sec. 14.63 .69.
Furthermore, the court would not be required to accord th2 decisions of the PUC and the EQB a presumption of correctness because the errors would be legal in nature. See Matter of Puel storace Installation, 501 N.W.2d,638, 642 (Minn. App. 1993).
Thus, no ripe cause of action exists under MERA and all claims must be dismissed without prejudice.
Even though this ruling is dispositive of the motion for a temporary injunction and the defendants' notions for protective orders, brief comment on some of the issues is in order.
First, even if a cause of action under MERA arguably exists right now, the plaintiff's motion for a temporary injunction would be denied. Only harm that is irreparable may be enjoined. See Rosewood Mortance corooration_v. Hefty, 383 N.W.2d 456, 458-459 (Minn. App.1986), and Morse v. City of waterville_, 458 N.W.2d 728, 729-730 (Minn. App. 1990). l As explained above, all of the problems of which the plaintiff complains in this action are correctable prior to the building of any spent fuel storage site in Florence Township.
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- Since the alleged harm is correctable it is not irreparable and i
it cannot be enjoined.
Second, at the hearing on the motiore the court raised l the issue of whether a judicial decision which in effect requires the plaintiff to accept the administrative process violates the plaintiff's right to bring a lawsuit under MERA. l It is this court's view that the plaintiff is not compelled by the ruling herein to accept the administrative process. Rather, ;
I the plaintiff may proceed under MERA against any person whose '
conduct pollutes, impairs or destroys the environment and whose conduct genuinely threatens to.do so. But the plaintiff may not proceed until the cause of action ripens.
Third, the parties discussed in their briefs the rule that the court can enjoin conduct when it would be futile to await the outcome of the administrative process. It has not been demonstrated that the process in question triggers the I application of that rule.
Fourth, the plaintiff is concerned that if it does not take timely legal action to attempt to correct perceived errors in the. siting process it will later be met with the defense of laches. Laches could apply only after the plaintiff's cause of action ripens. That has not happened.
Fifth, one of the plaintiff's claims is that "Goodhue county has a duty'to assure that environmental policy is carried-10
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I out . . ." and that the county han violated that duty.
I certainly the county has a duty to comply with all laws, but the court finds no authority for the proposition that it must assume ,
l some special duty to oversee the implementation of state I legislative environmental policy.
Finally, the court declines to award costs and disbursemente to any party in this action.
(J.) l s=
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