ML19262A748

Response in Opposition to Indian Tribes 791105 Supplemental Petition for ALAB-552 & ALAB-559 Review.Petitioner Failed to Raise Good Cause Re Alleged ASLB Misapplication of Late Intervention Factor.Certificate of Svc Encl

ML19262A748
Person / Time
Site:	Skagit
Issue date:	11/20/1979
From:	Little D PERKINS, COIE (FORMERLY PERKINS, COIE, STONE, OLSEN, PUGET SOUND POWER & LIGHT CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 7912100473
Download: ML19262A748 (12)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

PUGET SOUND POWER & aIGHT ) Docket Nos. 50-522 COMPANY, et al. ) 50-523

)

(Skagit Nuclear Power Project, ) November 20, 1979 Units 1 and 2) ,

)

APPLICANTS' RESPONSE TO PETITIONER TRIBES' SUPPLEMENTAL PETITION FOR REVIEW Introduction On November 5, 1979, the Upper Skagit, Sauk-Suiattle, and Swinomish Tribes ("Tr ibe s ") filed a Supplemental Petition for Review. This pleading by the Tribes is the most recent step in a lengthy procedural history, which is as follows:

January 29, 1979 In ALAB-523, the Appeal Board reversed the Licensing Board's grant of interven-tion to Tribes and remanded the matter

• for proper consideration.

February 20, 1979 The Tribes filed a petition for review of ALAB-523. Both the NRC Staff and Appli-cants later filed answers in opposition.

March 8, 1979 The Commission deferred action on the petition for review pending completion of action on the remanded issue by the 1526 337 g 912100 eF 73 T

~ .

Licensing Board and any subsequent review of it by the Appeal Board.

June 1, 1979 The Licensing Board denied the Tribes' petition for intervention.

July 9, 1979 In ALAB-552, the Appeal Board noted substantial deficiencies in the Tribes' excuses for the extreme tardiness of their petition to intervene, but gave them an opportunity to file a supplemen-tal memorandum to cure the deficiencies.

August 31, 1979 Following review and consideration of the Tribes' supplemental memorandum, the Appeal Board issued ALAB-559, affirming the denial of the petition to intervene.

October 1, 1979 The Commission extended until October 15, 1979 the time in which it may determine whether to review ALAB-559.

October 15, 1979 The Commission issued an order allowing the Tribes 15 days to file a supplemental petition for review on ALABs -552 and

-559.

October 29, 1979 The Tribes petitioned the United Sta tes Court of Appeals for the District of Columbia Circuit for review of ALA3s

-523, ~552 and -559 and the Appeal Board's unpublished order of January 12, 1979.

November 5, 1979 The Tribes filed a supplemental petition for review with the Commission, seeking review of ALABs -552 and -559.

Timeliness of Supplemental Petition for Review In their supplemental petition for review, the Tribes seek review by the Commission of ALAB-552 and ALAB-559 pursuant to 10 CFR 2. 786 (b) . Section 2.786 (b) (1) provides, in pertinent part:

1526 338

Within fifteen (15) days after service of a decision or action by an Atomic Safety and Licensing Appeal Board under S 2.785 . . . a party may file a petition for review with the Commission on the ground that the decision or action is erroneous with respect to an important question of fact, law, or policy.

ALABs -552 and -559 were served on July 10, 1979 and August 31, 1979, respectively. The Tribes did not file a petition for review of either Appeal Board decision within the 15-day period required by the regulation. Neither did they request an exten-sion of time within which to file such a petition for review.

In fact, the Tribes' first action, two months after issuance of ALAB-559, was to file a petition for review, not here, but in the Court of Appeals. Therefore, the supplemental petition for review should be denied for the f ailure to file it within the 15-day per iod of Sec tion 2. 786 (b) (1) .

In Applicants' view, the lateness of the supplemental petition for review is not excused by the Commission's order of October 16, 1979. The Commission's order, which granted the Tribes an opportunity to file a supplemental petition for review, was made pursuant to 10 CFR 2.772 and 10 CFR 2.786.

Order, p. 2. Section 2.786, however, contains no authority for extending the time for filing a petition for review. Section 2.772(e) authorizes the Commission to extend the time for rulinkonapetition for review, but is inapplicable to ex-tending the time for filing a petition for review. Section 1526 339

2.772(a) authorizes the Commission to prescribe schedules for the " filing of briefs, motions or other pleadings where such schedules may differ from those elsewhere prescribed in these rules." Here, the Commission's order of October 16, 1979 was issued one month after the Tribes should have petitioned under Section 2.786 (b) (1) . Regulatory time limits are not usually extended after the fact, _i..e., after expiration of the time limit, aspecially where as here there has been no good cause shown for extension of the time limit. The Tribes should be bound by the 15-day requirement of Section 2.786 (b) (1) ; there-fore, the supplemental petition for review should be denied as untimely.

Response to Tribes' Statements of Error The Tribes contend that the Appeal Board made numerous errors in its application of various factors listed in 10 CFR

2. 714 (a) (1) . Supplemental Petition, p. 4. The Section

2. 714 (a) (1) factors present issues that are largely factual in nature. The resolution of these factual questions did not differ in the decisions of the Licensing Board and the Appeal Board. Therefore, several of the Tribes' contentions are deficient under Section 2.786 (b) (4) (ii) . These deficiencies will be detailed below.

7g 34Q

The first alleged misapplication of the late intervention facturs concerned the " good cause" factor (S 2. 714 (a) (1) (i) ) .

The Tribes claim that the Appeal Board placed inordinately great weight on this factor in comparison with the other four f actors of Section 2.714 (a) (1) . Supplemental Petition, p. 4.

The Tribes' claim is deficient in several respects. First, the Tribes f ailed to raise the alleged error before the Appeal Board, even though the Appeal Board had earlier announced its view of the relation between the good cause factor and the four other factors. See, Memorandum and Order (unpublished), pp. 2, 3 (January 12, 1979); ALAB-523, p. 12. The failure to raise before the Appeal Board their arguments on the good cause factor means that the supplemental petition for review must be denied, as required by Section 2.786 (b) (4) (iii) . Second, ALABs

-552 and -559 are fully consistent with existing decisional law, particularly where, as hece, the petition for intervention is very late. See, ALAB-552, pp. 7, 8; ALAB-559, pp. 2, 3.

Finally, the Tribes offer no record citations for their allega-tions, especially those that the Appeal Board made the good cause factor into a " threshold" or " barrier". To the contrary, the Appeal Board analyzed and weighed all five Section

2. 714 (a) (1) factors in its review. ALAB-559, pp. 21-22.

The Tribes' second allegation of error by the Appeal Board ic equally groundless. That allegation concerns the Appeal

-5_

1526 54I

Board 's treatment of the third f actor under Section 2.714 (a) (1)

(the likelihood of assisting in the development of a sound record). In the Appeal Board 's evaluation, the Tribes' ability to contribute to an already extensive record was conjectural.

ALAB-559, pp. 18-20. The Licensing Board reached a similar factual conclusion. 9 NRC (slip opinion, pp. 14, 15).

Pursuant to Section 2.786 (b) (4) (iii) , a petition for review of this factual issue must be denied.

The Tribes also contend that the Appeal Board misstated the test under the third factor, by requiring a " substantial con-tribution" from a late intervenor. The Appeal Board's state-ment, on which the Tribes rely, is a general observation, not a restatement of the regulation. See, ALAB-559, p. 19. More to the point, the Appeal Board expressly weighed the extent of the Tr'.bes' possible contribution, as is required by the regula-tion. ALAB-559, pp. 21, 22.

The Tribes offer a number of studies and revi:.ws on a variety of subjects. Supplemental Petition, pp. 5, 6. How-ever, these sabjects have been considered in detail in the present record. In fact, the record has been closed and findings of fact submitted on these subjects. Since the par-ticular information that the Tribes' studies might contain has yet to be msJe available, the Tribes' contribution remains as speculative as it was during the evaluations by the Licensing 1526 342 m

Board and Appeal Board. Allowing the Tribes to intervene for the purpose of introducing their studies and reviews would cause the relitigation of a substantial portion of the now closed record. Such duplication should not be condoned, except under the most extreme conditions, which are not present here.

The Tribes also contend that the Appeal Board erroneously considered the fourth f actor of Section 2.714 (a) (1) , which is the extent to which the Tribes' interests are represented by existing parties. They claim that they should be recognized as local governments. Supplemental Petition, pp. 4, 6. Pre-sumedly, the Tribes are now seeking to participate as an "in-terested State, county, or municipality" under Section

2. 715 (c ) , which has no timeliness requirement. However, they have previously sought to intervene only pursuant to Section 2.714. Their " local government" argument was not made in either their petition to intervene or their appeal. They belatedly raised the matter in a supplemental memorandum filed with the Appeal Board following ALAB-552. Petitioner Tribes' Supplemental Memorandum, dated July 30, 1979, pp. 2, 3. While they now claim to be entitled to the same treatment afforded Skagit County (a participant in this proceeding), they gloss over the obvious fact that they are neither a county nor a municipality and, hence, are not within the scope of Section 2.715(c).

1526 343

The Tribes also assert that the Appeal Board failed to consider the extent of representation of their interests by other parties. Supplemental Petition, p. 6. That characteri-zation of the Appeal Board's decisions is erroneous. See, ALAB-559, pp. 16-18 22. Furthermore, the extent of represen-tation is a factual matter which has been similarily decided by the Appeal Board and the Licensing Board. Hence, this portion of the supplemental petition for review should be denied pur-suant to Section 2.786 (b) (4) (ii' .

The Tribes further allege that the Appeal Board misapplied the fif th f actor of Section 2.714 (a) (1) . They mistakenly and without citation claim that the Appeal Board did not focus on the extent of delay. Supplemental Petition, p. 6. Quite clearly, what the Tribes seek to present as evidence would inevitably and extensively delay the licensing proceeding. The Appeal Board did assess the extent of delay, agreeing with the Licensing Board. ALAB-559, p. 3, fn. 2, p. 20. The Tribes also argue that the delay question should be based upon circum-stances as of the time of filing their petition to intervene, and not at the time of appellate consideration. This position is inconsistent with the Tribes' attempts elsewhere in the supplemental petition for review to exploit developments which have occurred since the filing of their petition to intervene.

See, e.g., Supplemental Petition, pp. 4-6. The Appeal Board

was consistent, and in Applicants' view correct, in deciding based uoon the status of the case chen before it. ALAB-559,

p. 20. The Tribes finally claim that their intervention would not unduly " broaden the issues." Supplemental Letition, p. 7.

Ignored in this argument is the Tribes' attempt to raise a new issue (genetic and somatic impacts of radiological releases on Indian receptors), which was recognized and weighed by the Appeal Board. ALAB-559, pp. 7, 8, 20.

The Tribes' final statement of error is that the Appeal Board majority neglected to take into account the factors set forth in Section 2.714 (d) . These factors, which must be con-s:dered with respect to every petition to intervene, were resolved by the Appeal Board f avorably to the Tribes.

ALAB-559, p. 14, En. 10. Hence, these factors were taken into account. The Appeal Board's and the parties' emphasis was appropriately concentrated upon the five (5) factors of Sec-tion 2.714 (a) (1) that pertain only to late filed petitions to intervene.

Why Commission Review Should Not Be Exercised The Tribes seek to review an inherently factual determina-tion, i.e., the application of Section 2.714 (a) (1) factors to the Tribes' extremely late filed petition to intervene. The Appeal Board and Licensing Board have consistently and res-ponsibly resolved the factual issues raised in the supplemental 1526 545

petition for review. To allow the Tribes to intervene at this time, almost five (5) years after the deadline for filing petitions to intervene, would make a shambles of the adminis-trative process. Such an action would be unprecedented. It should not be taken. The supplemental petition for review should be denied.

DATED: November 20, 1979 Respectfully submitted, PERKINS, COIE, STONE, OLSEN & WILLIAMS By ['

\J D6dglas S. Little Attorneys for Applicant 1900 Washington Building Seattle, Washington 98101 Phone (206) 682-8770 Of Counsel:

Lowenstein, Newman Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.

Nashington, D. C. 20036 (202) 862-8400 1526 346

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. )

) 50-522 (Skagit Nuclear Power Project, ) 50-523 Units 1 and 2) )

)

CERTIFICATE OF SER7 ICE I hereby certify that the followingt APPLICANTS' RESPONSE TO PETITIONER TRIBES' SUPPLEhtNTAL PETITION FOR REVIEW 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 November 20, 1979 with proper postage affixed for first class mail.

DATED: November 20, 1979

// '

,As Su d . A ouglg/ S.'Little C 1sel for Puget Sound Power &

Light Company 1900 Washington Building Seattle, Washington 98101 1526 347

Date: November 20, 1979 Valentine B. Deale, Chairman Robert C. Schofield, Director Atomic Safety and Licensing Board Skagit County Planning Department 1001 Connecticut Avenue, N.W. 218 County Administcaticn Building Washington, D. C. 20036 Mount Vernon, WA 98273 Dr. Frank F. Hooper, Member Richard M. Sandvik, Esq.

Chairman of Resource, Ecology, Assistant Attorney General Fisheries and Wildlife 500 Pacific Building University of Michigan 520 S.W. Yamhill School of Natural Resources Portland, OR 97204 Ann Arbor, MI 48109 Roger M. Leed, Esq.

Gustave A. Linenberger, Member Room 610 Atomic Safety and Licenning Board 1411 Fourth Avenue Building U.S. Nuclear Regulatory Commission Seattle, WA 98101 Washington, D. C. 20555 CFSP and FOB Alan S. Rosenthal, Chairman Eric Stacnon Atomic Safety and Licer sing 2345 S.E. Yamhill Appeal Board Portland, OR 97214 U.S. Nuclear Regulator:r Commission Washington, D. C. 20555 Robert Lowenstein, Esq.

Lowenstein, Newman, Reis, Dr. John H. Buck, Memb'er Axelrad & Toll Atomic Safety and Licensing 1025 Connecticut Avenue, N.W.

Appeal Board Washington, D. C. 20036 U.S. Nuclear Regulatory Commission Washington, D. C. 20:555 Warren Hastings, Esq.

Associate Corporate Counsel Michael C. Farrar, Meimber Portland General Electric Compani Atomic Safety and Litjensing 121 S.W. Salmon Street Appeal Board ' Portland, OR 97204 U.S. Nuclear Regulatbry Commission Washington, D. C. 2!0555 James W. Durham

! Portland General Electric Company Docketing and Servi @e Section 121 S.W. Salmon Street Office of the Secrei:ary Portland, OR 97204 U.S. Nuclear Regulaitory Commission s Washington, D. C. !20555 Richard D. Bach, Esq.

(original and 20 cd'oies) Stoel, Rives, Boley, Fraser and Wyse Richard L. Bi_ack, sq. 2300 Georgia Pacific Blda.

Counsel for NRC Stlaff 900 S.W. Fifth Avenue Portland, OR 97204 U.S. Nuclear Regu?.atory Commission Office of the Exe;!:utive Legal Canadian Consulate General Director , Donald Martens, Consul Washington, D. C .l' 20555 412 Plaza 600 6th and Stewart Street Nicholas D. Lewi?, Chairman Seattle, WA 98101 Energy Facility ite Evaluation Council Patrick R. McMullen, Esq.

820 East Fifth Akenue Skagit County Prosecuting Attorney Olympia, WA 98504 Courthouse Annex Mount Vernon, WA 98273 Thomas F. Carr, $sq.

Assistant Attorney General Temple of Justice Olympia, WA 98504 1526 348 8/22/79