ML20077H976

Response Opposing West Valley Agricultural Protection Council 830721 Request That ASLB 830711 Memorandum & Order Be Referred to Aslab.Stds for Referral Not Satisfied. Certificate of Svc Encl

ML20077H976
Person / Time
Site:	Palo Verde
Issue date:	08/08/1983
From:	Bischoff C JOINT APPLICANTS - PALO VERDE, SNELL & WILMER
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8308120136
Download: ML20077H976 (8)

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? DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3 AUG 11 A10:45 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD cE cf SECatl '

00Cn6Tl13 & F.'

In the Matter of M AN @'

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ARIZONA PUBLIC SERVICE ) DOCKET NOS. STN 50-529 COMPANY, et al. ) STN 50-530

)

(PALO VERDE NUCLEAR )

GENERATING STATION, )

Units 2 and 3) )

)

JOINT APPLICANTS' RESPONSE TO WEST VALLEY'S REQUEST FOR REFERRAL By letter dated July 21, 1983, West Valley has requested this Board'to " authorize an appeal" of the Board's July 11, 1983, Memorandum and Order pursuant to 10 CFR 62.730(f). In that decision the Board denied West Valley's February 2, 1983, motion seeking a ruling that (1) the Final Environmental Statement ("FES") prepared by the Staff does not meet the requirements of the National Environmental Policy Act ("NEPA") and (2) a supplement to the FES needs to be prepared before the reopened hearings on Palo Verde Units 2 and 3 may proceed. In its five-sentence letter to the Board, West Valley also asks the Board to treat West Val-ley's motion for stay filed with the Appeal Board as a mo-tion to this Board to certify the Board's decision for ap-peal.

By invoking the provisions of 10 CFR 52.730(f),

West Valley apparently recognizes that an appeal of the 8308120136 830008 PDR ADOCK 05000529 O PDR

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t Board's decision is prohibited under the Commission's rules.

10 CFR 52.730(f). However, Section 2.730(f) goes on to state: "When in the judgment of the presiding officer prompt decision is necessary to prevent detriment to the public interest and unusual delay and expense, the presiding officer may refer the ruling " In its letter, West Valley asks the Board both to refer its ruling under Section 2.730(f) as well as to certify its decision for appeal. For purposes of the Board's consideration of this request, there is no material difference between the two procedures. See Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2), LBP-82-50, 15 NRC 1746, 1754 n.7 (1982); Public Ser-vice Company of Oklahoma, et al. (Black Fox Station, Units 1 and 2), LBP-76-38, 4 NRC 435, 437 (1976). West Valley as-serts in its letter that its request meets the standards in Section 2.730(f).

The standards to be applied to a request for a re-ferral were recently addressed by the licensing board in the Catawba case:

Rulings may be referred where neces-sary "to prevent detriment to the public interest or unusual delay or expense."

10 CFR 2.730(f). See Public Service Com-pany of Indiana (Marble Hill), 5 NRC 1190, 1192 (1977), and cases cited. In addition, the Commission has encouraged referrals "if a significant legal or policy question is presented." State-ment of Policy on Conduct of Licensing i Proceedings, 46 Fed. Reg. 28533, 28535.

More specifically, referral may be ap-propriate where the rulings in question

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affect "the basic structure of the pro-ceeding in a pervasive and unusual man-ner." Houston Lighting and Power Com-pany (Allen Creek Station), 13 NRC 309, 310.

15 NRC at 1754. The standards are the same as those applied by the Appeal Board in deciding whether to accept a referral or certification:

Whether review should be undertaken on

" certification" or by referral before the end of the case turns on whether a failure to address the issue would seriously harm the public interest, result in unusual delay or expense, or affect the basic structure of the pro-ceeding in some pervasive or unusual manner.

Consumers Power Company (Midland Plant, Units 1 and 2),

ALAB-634, 13 NRC 96, 99 (1981). Since West Valley made no showing whatsoever in its five-sentence letter that the applicable standards have been met, and since West Valley clearly carries the burden of making such showing, its request must be denied.M See Public Service Company of Oklahoma, supra, 4 NRC at 437.

M Joint Applicants recognize that West Valley has re-quested this Board to treat West Valley's motion for a stay filed with the Appeal Board as a motion to this Board to certify its decision to the Appeal Board. Although West Valley has addressed the factors applicable to an applica-tion for a stay in such motion, such discussion does not come close to satisfying West Valley's burden in filing a request for referral. First, the factors applicable to an application for stay are not the same as those applicable to a request for referral (or motion for certification) . Sec-ond, to the extent that there are any similarities, the fac-tors must be reviewed in the appropriate context. For ex-ample, while in a particular set of circumstances it may be in the public interest to refer a ruling, it may be incon- '

sistent with the public interest to issue a stay of further proceedings.

t Although Joint Applicants have no obligation to address the above-listed standards, a brief analysis compels the conclusion that the standards for a referral are not satisfied in this case.

1. The Public Interest There is no dispute that the public has an in-terest in a sound environmental impact analysis. There is also no need to recount the very substantial environmental analyses already performed by Joint Applicants and the NRC Staff on the subject of salt deposition. Furthermore, ad-ditional studies on the effects of foliar deposition of saline aerosal are being conducted by the University of Arizona. All of the relevant studies and analyses will be made part of the record in the reopened proceeding for Units 2 and 3 and will be weighed by the Board in deciding whether operating licenses should be issued. The public interest in a sound environmental analysis of the salt deposition issue will thus be suitably protected.

Furthermore, even if the hearing discloses that there are defects in the FES respecting the salt deposition l issue, evidence may be received at that time to cure such i

defects pursuant to the Commission's regulations. E ue 10 CFR 551.52(b)(3). If need be, the decision of the Scard l will be circulated in the same manner as the FES. Id. In l

sum, the public interest will be adequately protected by the l

course already established for this proceeding. There is no

need to interrupt that course by asking the Appeal Board to review the matter of potential defects in the FES and the supplementation of the FES when the Commission's regulations specify the procedure to be followed should such a contin-gency materialize.

2. Unusual Delay or Expense There will be no unusual delay or expense if the Board declines to refer its ruling to the Appeal Board. The Appeal Board is in no better position than the Licensing Board to rule on the adequacy of the FES. A hearing is necessary to consider the allegations of West Valley and make such determination. And as stated above, even if there are defects in the FES, those may be cured by the receipt of additional evidence. Proceeding with a hearing on West Val-ley's allegations in lieu of referring the Board's decision will in fact avoid delay in a decision on the salt deposi-tion issue.

3. Effect on Structure of the Proceeding l A consideration of this factor follows much the same lines as discussed above. It is necessary to proceed with the hearing to consider the merits of West Valley's allegations concerning the FES. If there are any defects in the FES, they may be cured by the receipt of additional evi-dence as contemplated by the Commission's regulations. That is, even if West Valley's allegations respecting FES ade-quacy have some merit, proceeding with the course adopted by

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the Board will be consistent with the procedure specified by the Commission's regulations. Accordingly, the structure of the proceeding will not be affected in some pervasive or unusual manner if West Vallsy's request is denied.

CONCLUSION Based on the foregoing reasons, West Valley's re-quest that the Board's July 11, 1983, Memorandum and Order be referred to the Appeal Board should be denied.

RESPECTFULLY SUBMITTED this 8th day of August, 1983.

SNELL & WILMER By Arthur C. Gehr /

Warren E. Platt Charles A. Bischoff Vaughn A. Crawford 3100 Valley Bank Center Phoenix, Arizona 85073 Attorneys for Joint Applicants I

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

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ARIZONA PUBLIC SERVICE ) Docket Nos. STN 50-529 COMPANY, et al. ) STN 50-530

)

(Palo Verde Nuclear )

Generating Station, )

Units 2 and 3) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of " Joint Applicants '

Response to West Valley's Request for Referral" have been served upon the following listed persons by deposit in the United States mail, properly addressed and with postage prepaid, this 8th day of August, 1983.

Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Chairman, Maricopa County Board of Supervisors 111 South Third Avenue Phoenix, AZ 85004 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Robert M. Lazo, Esq.

Chairman, Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 rw ' - - - - y w w w

o Dr. Richard F. Cole Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Dixon Callihan Union Carbide Corporation P.O. Box Y Oak Ridge, TN 37830 Lee Scott Dewey, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Edwin J. Reis, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Lynne Bernabei, Esq.

Government Accountability Project Institute for Policy Studies 1901 Q Street, N.W.

Washington, D.C. 20009 Kenneth Berlin, Esq.

Suite 550 I

2550 M Street, N.W.

Washington, D.C. 20037 i

1 Charles A. 1 p hoff C/

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