ML20216C259
| ML20216C259 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 05/14/1998 |
| From: | Chancellor D UTAH, STATE OF |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#298-19078 ISFSI, LBP-98-07, LBP-98-7, NUDOCS 9805190168 | |
| Download: ML20216C259 (13) | |
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UNITED STATES OF AMERICA occxtreo NUCLEAR REGULATORY COMMISSION MAY 151998
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m BEFORE THE NUCLEAR REGULATORY COMMISSIO - "d$$sm g j
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N In the Matter of:
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Docket No. 72-22-ISFSI
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PRIVATE FUEL STORAGE, LLC
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(Independent Spent Fuel
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Storage Installation)
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May 14,1998 STATE OF UTAH'S BRIEF IN RESPONSE TO APPLICANT'S APPEAL OF ORDER LBP 98 7 GRANTING THE CONFEDERATED TRIBES' PETITION FOR INTERVENTION INTRODUCTION The State hereby responds to the Applicant's Appeal of the Board's order of April 22,1998, LBP 98-7, granting the Confederated Tribes of the Goshutes intervention as of right to panicipate as a full party in this proceeding. The State supports the Confederated Tribes' petition and submits that the Board correctly determined that the Confederated Tribes of the Goshute Reservation has established standing to intervene.
BACKGROUND On July 31,1997, the Nuclear Regulatory Commission published a notice of opponunity to request a hearing and petition to intervene in this proceeding, in which Private Fuel Storage, LLC has applied for a license to build a high-level nuclear waste storage facility on the Skull Valley Reservation, located in Tooele County, Utah. 62 9805190168 980514 g3 ADOCK 0720 2
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l Fed. Reg. 41,099. Petitions to intervene in the proceeding were timely filed by a number of petitioners, including the State of Utah and the Confederated Tribes of the l
Goshute Reservation. All petitioners who timely filed for intervention have been i
admitted as parties by the Licensing Board, which found they have standing and have i
presented at least one admissible contention. LBP-98-7 at 157.
On May 4,1998, the Applicant, Private Fuel Storage, LLC, appealed to the L
Nuclear Regulatory Commission the Board's granting intervention to the Confederated Tribes of the Goshute Reservation.
ARGUMENT A.
Standard of Review for Rulings on Intervention A Licensing Board's decision to admit a petitioner as an intervenor is entitled to
" substantial deference," absent a clear misapplication of the facts or law. Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-9512,42 NRC 111,116 (1995). Funhermore, a Licensing Board's conclusion regarding the adequacy of a petitioner's affected interest will not be disturbed unless it appears to be " irrational."
li; seealso Duauesne Light Co. (Beaver Valley Power Station, Unit No.1), ALAB-
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I 109,6 AEC 243,244 (1973).
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' The other petitioners timely filing are Castle Rock Land and Livestock, L.C.,
Skull Valley Co., LTD., and Ensign Ranches of Utah, L.C.; Ohngo Gaudadeh Devia; and Skull Valley Band of Goshute Indians. LBP-98-7 at 1. An additicnal petitioner, Scientists for Secure Waste Storage, filed late and was denied intervention by the Licensing Board. See11 at 44-45.
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I B.
Legal Standard for Granting Intervention Persons requesting leave to intervene in NRC proceedings must show that they have standing to intervene pursuant to 42 USC $ 2239(a) and 10 CFR $ 2.714(d)(1).
1 The petitioner must show:
1 (i)
The nature of the petitioner's right under the Act to be made a party to the proceeding.
(ii)
The nature and extent of the petitioner's property, financial, or other -
interest in the proceeding.
(iii)
The possible effect of any order that may be entered in the proceeding on the petitioner's interest.
10 CFR $ 2.714(d)(1). In addition, the petition must set forth with particularity the petitioner's interest in the proceeding and the aspects of the proceeding in which the petitioner wishes to intervene.10 CFR $ 2.714(a)(2).
The Commission looks to judicial concepts of standing in determining whether a petitioner's interest may be affected by a licensing proceeding. Thus, a petitioner must show that a proposed action will cause injury-in-fact to the petitioner's interest; that injury must arguably fall within the zone of interests sought to be protected by the Atomic Energy Act (AEA) and the National Environmental Policy Act (NEPA),
Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), CLI-93-16,38 NRC 25,32 (1993); Public Service Co. of Indiana (Marble Hill Generating Station, Units 1 and 2), CLI-80-10,11 NRC 438,439 (1980); Portland General Electric Co.
(Pebble Springs Nuclear Plant, Units 1 and 2), CLI 76-27,4 NRC 610,613-614 (1976)).
Additionally, the injury must be fairly traceable to the proposed action, and the injury 3
must be redressable by the Commission. Luian v. Defenders of Wildlife. 504 U.S. 555, 560-61 (1992).
Organizations as well as individuals may petition to intervene in NRC proceedings, and they must identify any organizational interest or interests of identified members that are harmed or threatened with injury by the license application at issue. Georgia Institute of Technology (Georgia Tech Research Reactor),
CLI-95-12,42 NRC 111,115 (1995), referring to Warth v. Seldin,422 US 490,511 (1975); Northeast Nuclear Energy Co, (Millstone Nuclear Power Plant, Unit No.1),
LBP 9601,43 NRC 19,21-23 (1996). To obtain standing, an organization must either demonstrate immediate or threatened injury to its organizational interests or derive representational standing from an individual member who has standing to participate and that member has authorized the organization to represent his or her interests.
Millstone,43 NRC at 2122.
I C.
The Board Correctly Applied the Requirements for Establishing Standing as of Right in Admitting the Confederated Tribes as Intervenors.
In ruling on the Confederated Tribes intervention petition the Board had before it evidence presented by the Confederated Tribes in the form of affidavits
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describing contacts of individual members of Confederated Tribes with the J
Skull Valley Reservation. The Board relied on two affidavits filed by Chrissandra Reed, a member of the Confederated Tribes, which described a pattern of visits onto j
the Skull Valley reservation by Ms. Reed and her granddaughter, for whom Ms. Reed 4
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acts as legal guardian. The Board found the contacts by Ms. Reed and the child "b ng one or both of them within distances of the facility we have found sufficient to prov :e standing for other participants." LBP-98-7 at 31. The Board reviewed conflicting claims alleged by the Applicant about the frequency and continued nature of the visits by Ms. Reed and her grandchild. After weighing the competing claims, the Board did
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not accept the Applicant's assertion that the pattern of contacts has become so attenuated as to provide an insufficient basis for granting standing to Ms. Reed and her i
grandchild. Id. at 32.
The Applicant argues that in determining that the Confederated Tribes has standing, the Board erroneously placed the burden of proof on the Applicant rather than on the Confederated Tribes, in violation of Luian v. Defenders of Wildlife. 504 U.S. 555, 560 (1992). Applicant's Brief at 9. On this ground, the Applicant seeks reversal of the Board's decision to admit the Confederated Tribes as an intervenor.
The Applicant is in error. First, the allocation of the burden of proofis only relevant to the extent that there is conflicting evidence in the record. There is no dispute that Chrissandra Reed's granddaughter Michaela has visited the Skull Valley Reservation at least 3 or 4 times per year to visit her cousins. See, e.g. Applicant's Brief at 6, Wash Declaration: at i 3. There is also no dispute that Chrissandra Reed and her 2 Declaration of Arlene Wash, dated November 10,1997, attached to Applicant's Answer to the Confederated Tribes and David Pete's Supplemental Memorandum in Support of Petition to Intervene and for a Hearing, dated December 12,1997.
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granddaughter have family ties with the Skull Valley Rewrvation. Althcugh there are conflicting statements in the record as to whether Ms. Reed's and Michaela's visits have been cut off and by whom, the fact remains that there is a " pattern of familial association." It was within the sound discretion of the Licensing Board to determine that the frequency of Michaela's contacts with the Skull Valley Reservation was sufficient to confer standing, and that the contacts were likely to continue given the family ties. The Board's exercise of discretion should be not disturbed unless the record demonstrates that a different result is warranted, which it does not.
Even assuming for purposes of argument that the Board had insufficient evidence before it to conclusively determine the Confederated Tribes' standing, the Board acted properly in finding that the Confederated Tribes had sufficiently demonstrated its standing at this threshold stage of the proceeding. As recognized in Luian, the " manner and degree of evidence" required to satisfy the burden of demonstrating standing differs at the successive stages of the litigation.11 At the initial stage of a proceeding, the intervenor has not had an opportunity to test opposing affidavits or testimony through discovery, or cross-examine opposing witnesses; nor has the Licensing Board had an opportunity to evaluate the credibility of opposing witnesses on the stand. Thus, the level of proof required of a petitioner at the initial stage of a proceeding must necessarily be tempered by the degree to which the petitioner is able to defend itself against factual attacks on its assenions regarding I
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I standing. The NRC has also recognized this principle. In Seouovah Fuels Corporation (Gore, Oklahoma Site), LBP-94-5,39 NRC 54,71 (1994), the Licensing Board decision found "a sufficient demonstration of injury in fact" where, despite I
l opposing affidavits claiming that the petitioner would not suffer injury, the potential
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for such injury could not be ruled out. There, the Board found that the issue of injury-l in fact was tied to the merits of the case, which had yet to be developed, and found that the merits should not be reached " prematurely." Ist at 68. The Commission affirmed the Board's decision in Seouovah Fuels Corporation (Gore, Oklahoma Site), CLI 12,40 NRC 64 (1994), holding that for the petitioner to prove his standing would require "more technical studies" that are " unnecessary" at this " threshold stage.".qqa, fc NRC at 74. See also Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-9512,42 NRC 111 (1995) (at " threshold standing stage," Commission refused to disturb Licensing Board's presumption that some injury could occur within the half-mile zone where the petitioner worked).
Moreover, it is appropriate for a Licensing Board to judge conflicting assertions in the standing affidavits in the light most favorable to the petitioner. As implicitly recognized by the Applicant, this standard is consistent with judicial precedents and longstarding NRC practice. Applicant's Brief at 10, citing Georgia Tech. 42 NRC at 115; Warth d. Seld a 422 U.S. 490,501 (1975); Kellev v. Selin 42 F.3d 1501,1508 (6th Cir.), en denied, r15 U.S.1159 (1995).
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The consideration of affidavits opposing standing is also akin to a ruling on summary judgment, in which any conflicts in the assertions are resolved in favor of a full hearing on the disputed issues. Accordingly,if the Commission should fm' d that l
the Confederated Tribes have not met its burden in demonstrating standing in this proceeding, the appropriate relief is to remand the issue for further proceedings, not to dismiss the Confederated Tribes from the case.
D.
The Confederated Tribes Has Established Representational Standing The Applicant, relying on Hunt v. Washington State. Apple Adver. Comm'n, 432 U.S. 333,343 (1977), argues that the interest that the Confederated Tribes s eks to protect must be germane to the organization's purpose and that the Tribe has nc met that burden. At issue in Hunt was whether an organization that was essentially a state agency rather than a traditional voluntary membership organization, could assert more than an abstract concern for the well being of the Washington-apple industry as the basis for standing. Hunt,432 U.S. at 342. No such abstract concern is at issue in the i
Private Fuel Storage, LLC licensing proceeding.
The Confederated Tribes has raised health and safety concerns relating to tribal members who reside on the Confederated Tribes' reservation and who visit the Skull Valley Reservation and pass by the site of the Applicant's intermodal transfer point at Rowley Junction.) The Confederated Tribes is responsible for maintaining its 3 Rowley Junction is at the Junction of Interstate 80 (exit 77) and Skull Valley Road and is sometimes the point at which Ms. Reed drops off her granddaughter for 8
member's health and safety and it administers its own health, educational, elderly and e
day care facilities. Affidavit of David Pete at 17,19, dated August 28,1997, attached to Petition for Leave to Intervene Submitted by the Confederated Tribes of the Goshute Reservation and David Pete, dated August 28,1997. Seealso Applicant's brief at 13. The Applicant asserts, without a shred of evidence, that the' Skull Valley Band of Goshutes is responsible for the health and safety of visitors to its reservation and that
'somehow the health, safety and welfare of the Confederated Tribes members are irrelevant when those members are off the member's reservation. Applicant's Brief at 13.
The Applicant is attempting to merge the two standards from which an organization may derive standing. Millstone states that an organization may base its standing on either an injury to its organizational interests sr derive standing from an individual member and that member has authorized the organization to represent his or her interest. Millstone. 43 NRC at 21-22. Ms. Reed on her own behalf and as legal guardian to her granddaughter has individual standing and Ms. Reed has authorized the Confederated Tribes to represent her interest. LBP-98 7 at 32. Thus, the Board has correctly decided that the Confederated Tribes has organizational standing.
Furthermore, the Confederated Tribes has met the additional burden the Applicant attempts to i)npose on this intervenor. In obtaining standing, Ms. Reed has established her visits to the Skull Valley Reservation. Applicant's brief at 6; SAR at 4.5-3; State's Contentions, dated November 23,1997, at 10-15.
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a threat to the health and safety of herself and her granddaughter and the Confederated Tribes has also shown that it is responsible for the health and welfare of its tribal members.
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The Applicant's arguments are u.srsuasive for the Commission to disturb the l
l Licensing Board's conclusion regarding the adequacy of the Confederated Tribes' l
affected interest, and thus, the Commission should affirm the Board's decision.
CONCLUSION For the reawns set forth above, the State requests the Commission uphold the Licensing Board's decision that the Confederated Tribes has standing in this proceeding.
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DATED this 14th day of May,1998.
l E espectfull. submitted, i
WA j Denise Chancello'r,5ssistant Attorney General Fred G Nelson, Assistant Attorney General Diane Curran, Special Assistant Attorney General Connie Nakahara, Special Assistant Attorney General Attorneys for State of Utah j
Utah Attorney General's Office l
160 East 300 South,5th Floor, P.O. Box 140873 Salt Lake City, UT 84114-0873 Telephone: (801) 366-0286, Fax: (801) 366-0292 10
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s CE.RTIFICATE OF SERVICE D00KETED L
- ?L MAY 151998 I hereby cenify that copies of STATE OF UTAH'S BRIEF IKR PONSExuasua i
ADAptCADONS STAFF TO APPLICANT'S APPEAL OF ORDER LBP-98-7 GRANTING TI h, CONFEDERATED TRIBES' PETITION FOR INTERVENTION wer the persons listed below by electronic mail (unless otherwise noted) with conforming copies by United States mail first class, this 14th day of May,1998:
l Attn: Docketing & Services Branch Greta J. Dieus, Commissioner j
Secretary of the Commission U.S. Nuclear Regulatory Commission l
U. S. Nuclear Regulatory Commission Mail Stop O 16 G15 Mail Stop: 016G15 One White Flint North l
11555 Rockville Pike, One White Flint 11555 Rockville Pike l
North Rockville, MD 20852 2738 Rockville, MD 20852-2738 e-mail: cmrdicus@nrc. gov e-mail: secy@nrc. gov l
(originaland two copies)
Nils J. Diaz, Commissioner l
U.S. Nuclear Regulatory Commission Shirley A. Jackson, Chairman Mail Stop O-16 GIS U.S. Nuclear Regulatory Commission One White Flint North l
Mail Stop O-16 G15 11555 Rockville Pike i
One White Flint North Rockville, MD 20852-2738 11555 Rockville Pike e-mail: cmrdiaz@nrc. gov Rockville, MD 20852-2738 c mail: chairman @nrc. gov G. Paul Bollwerk, III, Chairman Administrative Judge l
Edward McGaffigan, Jr., Commissioner Atomic Safety and Licensing Board l
U.S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission l
Mail Stop O-16 G15 Washington, DC 20555 One White Flint North E Mail: gpb@nrc. gov 11555 Rockville Pike Rockville, MD 20852-2738 e-mail: sfc@nrc. gov l
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l Dr. Jerry R. Kline John Paul Kennedy, Sr., Esq.
l Administrative judge 1385 Yale Avenue l
Atomic Safety and Licensing Board Salt Lake City, Utah 84105 U. S. Nuclear Regulatory Commission E Mail: john @kennedys.org Washington, DC 20555 E-Mail: jrk2@nrc. gov Joro Walker, Esq.
Land and Water Fund of the Rockies Dr. Peter S. Lam 165 South Main, Suite 1 Administrative Judge Salt Lake City, Utah 84111 Atomic Safety and Licensing Board E-Mail: joro61@mconnect.com j
U. S. Nuclear Regulatory Commission Washington, DC 20555 Danny Quintana, Esq.
E Mail: psl@nrc. gov Danny Quintana & Associates, P.C.
50 West Broadway, Fourth Floor Sherwia E. Turk, Esq.
Salt Lake City, Utah 84101 Catherine L. Marco, Esq.
E-Mail: quintana @xmission.com Office of the General Counsel Mail Stop 15 B18 Martin S. Kaufman, Esq.
U.S. Nuclear Regulatory Commission Atlantic Legal Foundation Washington, DC 20555 205 E. 42nd Street E Mail: set @nrc. gov New York, New York 10017 E-Mail: cim@nrc. gov E m ail: mskaufman@ yahoo.com Jay E. Silberg, Esq.
Richard Wilson Ernest L. Blake, Jr.
Department of Physics Shaw, Pittman, Potts & Trowbridge Harvard University 2300 N Street, N. W.
Cambridge, Massachusetts 02138 Washington, DC 20037-8007 E-mail: WILSON @HUHEPL.
E-Mail: Jay _Silberg@shawpittman.com HARVARD.EDU Clayton J. Parr, Esq.
James M. Cutchin Parr, Waddoups, Brown, Gee &
Atomic Safety and Licensing Board Loveless Panel 185 South State Street, Suite 1300 U.S. Nuclear Regulatory Commission P. O. Box 11019 Washington, D.C. 20555-0001 Salt Lake Cify, Utah 84147-0019 E-Mail: jmc3@nrc. gov E-Mail: kaienj@pwlaw.com (electronic copy only) 12
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Office of the Commission Appellate Adjudication Mail Stop: 16-G-15 OWFN U. S. Nuclear Regulatory Commission i
Washington, DC 20555 j
(United States mail,first class only)
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Denise Ch'an'celllfr'
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Assistant Attorney General State of Utah l
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