ML20206S291

Informs That on 990420 Council Provided ten-day Comment Period on Council Order 731 Recommending Governor Approval of Amend of Site Certification Agreement for Satsop Power Plant Site

ML20206S291
Person / Time
Site:	Satsop
Issue date:	05/05/1999
From:	Fiksdal A WASHINGTON, STATE OF
To:	NRC
References
NUDOCS 9905210090
Download: ML20206S291 (6)

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1 gD'gO, MAY 0 51999 STATE OF WASHINGTON ENERGY FACILITY SITE EVALUATION COUNCIL PO Box 43172

• Olympia, Washington 98504 3172 l

May 5,1999 i

TO: Interested Persons - Amendment of Site Certification Agreement l l

for Satsop Power Plant Site RE: Council Order No. 731 Motion for Reconsideration / Motion for Stay On April 20,1999, the Council provided a ten-day comment period on Council Order No. 731

- Recommending Governor's Approval of Amendment of the Site Certification Agreement for the Satsop Power Plant Site. One organization, Wildlife Forever of Grays Harbor, responded and has requested reconsideration of Council Order No. 731 and a temporary stay pending outcome of their request for reconsideration and judicial review of the Order.

The Council is providing interested persons an opportunity to comment on the Motion for Reconsideration and Motion for Stay filed by Wildlife Forever of Grays Harbor. Written comments will be accepted within ten days of service of the enclosed motion (s) filed on //

behalf of Wildlife Forever. //

The Council will consider and take action on the matter after receipt of any responses.

Dated at the Department of Community, Trade and Economic Development, this 5th day of QQOf May 1999.

, , J Allen J. Finsdal EFSEC Manager 9905210090 990505 PDR ADOCK 05000508 A PDR (360) 956-2000 Telefan (360) 956-2158 TDD (360) 956-2218

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2317 E. JOHN STREET SEATTLE, WA 98122 (206) 860 2883; FAX 860 4187 April 30,1999 I Council Manager ,

gy Energy Facility Site Evaluation Council 925 Plum St. SE, Bldg 4 l g " " \f .

i P.O. Box 43172 Olympia, Washington 98504-3172 APR 3 01PJ9 Via Leaal Messenaer ENERGY FACILITY SITE Re: Motion for Reconsideration Motion for Stay EVAU.lATION COUNCll Council Order No. 731 )

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Dear Council Manager:

I am writing on behalf of Wildlife Forever of Grays Harbor to request reconsideration of Council Order No. 731 and a temporary stay pending outcome of this request for reconsideration and judicial review of the Order. Wildlife Forever respectfully requests that Council Order No. 731 be withdrawn pending the following:

• Resolution of the lawsuit Wildlife Forever v. WPPSS (Thurston County Superior Court No. 99 2-00620-5);

e Compliance with SEPA:

• Compliance with applicable statutes and regulations; i e . Remedying of the other defects cuttined in this letter and in previous correspondence from Wildlife Forever and Grays Harbor Audubon.

Even if the Council rejects this Motion for Reconsideration, it has the authority to stay the Order pending judicial review. Wildlife Forever has initiated judicial review of the site transfer in Wildlife forever v. WPPSS. In addition, Wildlife Forever intends to seek judicial review of Order No. 731 if necessary. The interests of the Council, the various parties, and the public will be advanced by the -

prompt judicial resolution of these legal disputes prior to any action by the Governor or other parties that would complicate eventual resolution of this matter.

A. The Council Lacked Authority to issue Order No. 731.

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1. The Council lacked authority to amend the SCA without complying , , l with RCW 80.50.300, l

The Council acknowledges that the authority of the Council to release the site from the SCA under RCW 80.50.300(2) is conditioned upon transfer of title.

. . See Order No. 731/n. 3. The Order repeatedly relies upon the legislative intent and policy behind that 1986 legislation. Yet, the Order attempts to transfer the site 3

without complying with the explicit conditions of that legislation, thereby I circumventing legislat;ve inten't. Moreover, the legislative history of RCW 80.50.300 demonstrates that the law conferred new authority to the Council to release the site from the SCA. Without complying with that statute, the Council does not possess the authority to release the site from the SCA.

2. The Council failed to comply with RCW 80.50.300.

RCW 80.50.300 only allows the Council to release the mitigation lands from  !

the SCA after they are validly transferred by WPPSS to a political subdivision I comprised of elected officials. Our lawsuit Wildlife forever v. WPPSS_will demonstrate that no such valid transfer occurred. The Council apparently acknowledges that the transfer likely does no.t comply with RCW 80.50.300. See Order No. 731, p. B. In any event, we understand that the prerequisite transfer of title from WPPSS has not yet taken place.

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3. The Council failed to comply with SEPA.

The Council admits that Order No. 731 was not adopted pursuant to RCW 80.50.300. jd. Thus, the amendment is not exempted from compliance with the State Environmental Policies Act ("SEPA"), RCW 43.21C. See RCW 80.50.310, 43.21C.400. While the Council's Order suggests that an environmental impact statement is unnecessary, the Councilis required to comply with the threshold determination process in reaching this conclusion. See WAC 463 47-020 (incorporating 197-11-330); WAC 463-47-070. If at the conclusion of the threshold determination process the Council determines that a determination of non-significance ("DNS") is appropriate, proper notice of the DNS must be given.

WAC 463-47-100. The Council failed to c'omply with these mandates in this situation.

The Council is incorrect in its position that it can rely upon the SEPA process for the original WPPSS project. At this point, a new " action" is proposed and thus a new SEPA process is required. If the Council chooses to rely upon existing SEPA documents, it may do so under the relevant regulations. The fact that there was a SEPA process on this same site in the past, however, cannot be j considered to' grant a nerpetual SEPA exemption to any activities on this site that are claimed to be less impacting than a nuclear facility. j i

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4. The proposed SCA amendment does not comply with applicable laws.

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.,Afi-50=99Fil12:28iM SMiiniffiNEY FAX:206624%70 iAGE 4 WAC 463-36-050 requires the council.to consider the short and long term environmental impacts of proposals to amend or terminate a SCA, as well as alternative means of achieving the purpose of.the amendment and availability of funding to implement the proposal. Order No. 731 fails to adequately consider

these issues. In particular, no consideration was given to alternatives or to the financial resources of the SCA to implement the proposal.

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Similarly, the Council failed to consider the factors contained in WAC 463-36-100 relating to the transfer of the SCA. Nor did the Council require WPPSS to submit the information explicitly required by WAC 463 36100(2)(b).

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5. The proposed SCA amendment does not satisfy the requirements of , ,

WAC 463-36 040.

The proposed amendment is not consistent with 1) the irgention of the original SCA, 2) applicable laws and rules; or 3) the public health, safety and

- welfare.

The history of the SCA makes it clear that the intent of the SCA was to protect the mitigation lands as old growth forest habitat through state enforcement until full restoration of the site. The proposed amendment removes all state protection of the mitigation lands and turns them over to a party that has stated its intent to use the lands for revenue generating logging activities. This is clearly inconsistent with the intent of the SCA.

The amendment is also inconsistent with applicable laws and rules, including RCW 80.50.300. As mentioned previously; the Council's Order picks and chooses which provisions of RCW 80.50.300 to comply with -- relying upon its delegation of authority while avoiding its explicit conditions upon such authority. This amendment should be invalidated due to this lack of compliance with RCW 80.50.300. Additionally, although the Council notes that the Transfer Agreement

" acknowledges" the Wildlife Mitigation Agreement, WPPSS is not a party to the Mitigation Agreement, as required under RCW 80.50.300(1). Thus, there has been no " transfer" of the restoration responsibilities by the certificate holder, as required by RCW 80.50.300.

The amendment also fails to protect public health, safety and welfare, including the protection of the mitigation lands. The key environmentalimpact is the reduction of protection afforded the mitigation lands and the precedential impact of removing all state protection from lands protected for mitigation. As discussed in our previous letter, RCW 80.50.120 required mitigation for impacts caused by both " construction" and operation. Impacts were created by the construction of a major facility in what was previously critical wildlife habitat, and these impacts will be ongoing until the site is fully restored. Thus, there is no doubt that the current mitigation was required and is enforceable under state law.

In fact, intentional violation of the mitigation responsibilities is a criminal act and subjects the violators to penalties of up to $25,000 per day. See RCW 80.50.150.

The SCA and WPPSS' currant mitigation commitments are enforceable by specific performance. Id. Such enfr,rceability is critical to protecting the public's interest in

.the mitigation lands and consistency with the intent behind the SCA. i In contrast, under the scheme advanced by the ODA, where the mitigation  !

responsibilities are merely contractual, neither the public nor our state agencies  ;

have an ability to enforce the mitigation. The sole exceptbn is that the  !

. Department of Fish & Wildlife is a party to the November 1998, Wildlife Mitigation Lands Management -Agreement. However, that agreement has dubious legal i status, was arguably entered into by the parties without legal authority and for insufficient consideration, and is potentially unenforceable. Moreover, that agreement does not (and could not) provide criminal or civil sanctions for violatim, P

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..FR.50.99 Fil 12:30 FM SMiiHid0nNEY rAX:2V66206/V RAW b and it is not subject to enforcement by specific performance. Instead, disputes under the agreement must be resolved by mediation. Thus, none of the legal guarantees that currently exist would continue into the future. This scheme is not only contrary to public policy, it is inconsistent with the original intent of the SCA and therefore cannot be effected by an amendment of the SCA. See WAC 463-36-040(1),

The Council appears to view this transaction only in its most optimistic light.

This is not an appropriate approach to guarantee the public's right to the protection of these resources. For example, the Council has even gone so far as to interpret the Satsop Site Transfer Agreement as providing more protection than it does by its own terms. See Order No. 731, p. 3.

We would be happy to provide additional briefing or an opportunity to respond to any submissions by other interests.'

Very Truly Yours, i

S MITH & LOWN EY, P.L.L.C.

1 By:

Knoll D. Lowney Attorneys for Wildlife F ever of Grays Harbor Cc: Wildlife Forever k