ML20032D926
| ML20032D926 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 11/06/1981 |
| From: | Greenfield R NEW MEXICO, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8111180438 | |
| Download: ML20032D926 (11) | |
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'81 N0y -9 553 UNITED STATES OF AMERICA r rrmE OF SECRETAM' M y{fe f
- NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of...
Docket Nos.
Arizona Public Service Company, et. al., (the Palo Verde Nuclear STN 50-528/
Generating Station, 529/530 Units 1, 2 and 3)
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A THE ATTORNEY GENERAL'S RESPONSE TO JOINT 8
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_j OV.z 7 79g APPLICANT'S ANSWER AND NRC STAFF RESPONSE h
ED TO MOTION TO PARTICIPATE AS INTERESTED f
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AGENCY OF THE STATE OF NEW MEXICO On September 17, 1981 the A.G. filed a Motion To Participate As An Interested Agency Of The State Of New Mexico pursuant to 10 CFR Section 2.715 (c). On October 2,1981 Joint Applicants filed an Answer thereto which requested denial of the Motion or, in the al-ternative, a statement of specificity on the subject matters and issues to be addressed by the A.G.
On October 7,1981 the NRC Staff filed a Response which did not object to the A.G's participa-tion but which requested a statement of specificity and a delinea-tion of the A.G. 's right to discovery.
On October 29, 1981 Judge Lazo, the Presiding Officer gave the Y
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l Attorney General of the State of New Mexico (AG) permission to file his Response in accordance with 10 CFR Section 2.730 (c). Judge Lazo also set the Prehearing Conference of November -18,1981, as the time for a ruling on the A.G.'s Motion to Participate.
Joint applicants do not challenge the fact that the AG is a bona fide representative of the State of New Mexico.
Joint applicants' argument is that the AG must set forth "a cognizable interest upon which it predicates its participation in the proceeding". It characterizes the AG's Motion as being solely based on the economic interests of the New Mexico ratepayers of PNM and EPEC and puts forth that these interests are not cognizable under the Atomic Energy Act.
The AG contends that he has an unconditional right to participate in this proceeding as a State representative under 10 CFR Section 2.715 (c) and the Atomic Energy Act, 42 USC Section 2021 (1); that if the Board should determine otherwise that the AG's participation is within the unlimited discretion of the Board; and that even if the Board should determine that the 10 CFR Section 2.714 " zone of interests" test is applicable that the AG meets that test.
1.
Statutory right to Participate The Atomic Energy Act (42 USC Jection 2011 et seq) addressed the state-federal relationship in Section 2021 et seq.
42 USC Section 2021 (a) states:
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It is the purpose of this section (1) to recognize the interests of the States in the peaceful uses of atomic energy...and (2) to recognize the need...for cooperation between the States and the Commission...
42 USC Section 2021 (c) (1)' reserved for the federal govern-ment the regulation of the construction and operation of production and utilization facilities as it relates to radiation safety. Con-gress, in turn, recognized the right of the States to participate in the regulatory process in 42 USC Section 2021 (1). This section is the-statutory authority for 10 CFR Section 2.715 (c) and reads:
With respect to each application for Commission license authorizing an acti-vity as to which the Commission's author-ity is continued pursuant to subsection (c), the Commission shall give prompt notice to the State or States in which the activity will be conducted of the filing of the license application; and shall afford reasonable opportunity for State representatives to offer evidence, interrogate witnesses, and advise the Commission as to the application with-out requiring such representatives to take a position for or against the granting of the application.
State is defined in 42 USC Section 2021 (n) to mean "any state."
Since the enactment of this statute and its implementing re-gulation no State has been denied an opportunity to participate in proceedings before the NRC. f r
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1 This is because:
not merely as a' matter of regulation but as a matter of congressional com-mand as well, a State must be given
'a reasonable opportunity' to ' advise the Commission' on the issues presented by a construction permit or operating license application...The short of the matter is that both statute and regula-tion explicity authorize States to par-ticipate in our licensing proceedings and to " advise the Commission on the matters considered therein." Gulf States Utilities Company (River Bend Station, Units 1 and 2 ALAB-317, 3 NRC 175, 178-180(1976).
(See also Application by General Electric Co. (Southwest Experi-mentalFast0xideReactor)DocketNo.
50-231, 3 AEC 40-41 (1965) and Project
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Management Corporation (Church R1ver Breeder Reactor Plant) ALAB-354 4 NRC 383,393(1977).
"Section 2.715 (c) appears to have been formulated to accomo--
date a State who desires to participate in a proceeding of this kind." Pacific Gas and Electric (Diablo Canyon Nuclear Power t
Plant) Docket No. 50 275, 4 AEC 89 (1968). The key word here is desire. Section 2.715 (c)'s use of the word " interested" is the common, ordinary use of that word, an expressed desire. Nowhere in Section 2.715 (c) is " interested" defined or are tests therefore set out.
Section 2.714 is not applicable in light of the "special consideration" given the States in the regulations and the Statute.
(See Application by General Electric Co., suprt.) The AG as re-presentative of the State of New Mexico has expressed such an in-terest or desire.
42 U.iC Section 2201 speaks nowhere of a " zone of interests" re-quirement. Section (a) (1) statutorily recognizes the States' in-terests in proceedings under the Atomic Energy Act.
In Section (1) special notice is required to be given to the State or States in which the activity is conducted but the mandatory opportunity for participation is "for State representatives" without exception and State is defined in Section (N) as all states.
Therefore the AG has the unconditional statutory right to participate and the NRC has been mandated to allow such participation.
2.
In the alternative, the Board should exercise its unlimited discretion It has been the Commission's long standing practice to permit states whose borders are close to the site of a proposed nuclear facility to participate under Section 2.715 (c) (See Exxon Nuclear Co. Inc. (Nuclear Fuel Recovery and Reclycing Center) ALAB-447, 6 NRC 873, 875, 878, 878 (1977).
Footnote 8 on page 875-76 lists 5 such cases.
In addition, See Allied-General Nuclear Services et al (Barnwell Fuel Recovering and Storage Station) 2 NRC 277, 291, (1976).)
The Commission has also allowed participation pursuant to l
Section 2.715 (c) to States which do not have a common border with the State where the activity will be conducted.
(VermontYankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station) 4 AEC
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776 (1972), 6 AEC 130 (1973) and Exxon Nuclear Company supra and l l l
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i at 6 NRC 518, 523, 524 (1977).
The' Exxon case is the only case which counsel for the AG has found where the issue of the definition of " interested state" was addressed. Joint applicant's cite the dissentins opinion therein as controlling.
In fact the maj6rity opinion therein is the rele-vant consideration here. The Board below held that the Atomic Energy Act " require (s) that a reasonable opportunity be afforded for state reoresentatives to participate" and. allowed participation under 10 CFR Section 2.715 (c) on the assertion that the State of California would secure valuable information relevant to its own determination under California law.
(6 NRC 873 supra at 523,524).
The Appeal Board affirmed, (6 NRC 873 supra at 879,880)
The Appeal Board's decision held that the Atomic Energy Act gave the Commission unlimited discretion as to States other than the State of location and that the Comission delegated such dis-cretion to the Licensing Boards through 10 CFR Section 2.715 (c).
The Appeal Board noted the Comission's direction that "the par-ticipation of an interested sovereign state in our licensing pro-cess, as a full party or otherwise, is always desirable..." (Id.,
at pg. 876).
The Appeals Board found that California had a direct and signi-ficant interest based on'its need to determine the availability of reprocessing or storage facilities.
It made no determination whether _ -
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or not the need for information was a ground upon which to base a right to participate but Mr. Salzman stated:
4 "even were the question a close one, I would not come down on the side of restricting the 'right of state govern-ments to participate in our proceed-ings.
In the long run public con-fidence in our ability.to regulate nuclear power responsibility in an evenbodied,' dispassionate manner is ill-served by closed hearings and a crabbed reading of regula-tions."
(Id. at p. 879)
It is thus clear that the tests derived under 10 CFR Section 2.714 are not applicable in the present case and that the cases 4
cited by the Joint Applicants are therefore not on point. Mr.
Salzman stated this clearly in saying:
in our proceedings a state agency is not to be analogized to a private party but enjoys a more advantageous position precisely because it represents an aspect of 4
the public interest." (Id.) This has been demonstrated in cases where the State has been denied intervention under Section 2.714 but granted participation rights under Section 2.715 (c).
(See Consumers Power Company (Midland Plant Units 1 and 2) LBP-78-27,8 NRC 275, 278 (1978))
The AG's Motion to Participate set forth a declaration by the representative of the State of New Mexico that the public interest of said State requires participation in this proceeding. Even if the AG did not properly set forth such interests participation should be,
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granted in deference to the State's judgement and the findings of Congress and the Commission that cooperation with the States and broad public participation are goals of the Atomic Energy Act.
The NRC's " regulatory responsibilities can best be carried out by allowing intervention as a matter of discretion to some petitioners who do not meet judicial standing tests." Portland General Electric Co.
(Pebble Springs Nuclear Plan, Units 1 and 2) CLI-76-27, 4 NRC 610, 616 (1976).
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The ratepayer interest set forth in the AG's motion does directly relate to the issue of the Joint Applicants' financial qualifications to operate and decommission PVNGS.
The AG has shown his familiarity with the finances of applicants PNM and EPEC. The AG feels that the participation of the AG will be a valuable contribution to the Com-mission's decision in this area.
Such a contribution is a significant factor weighing in favor of the Board granting participation.
(See Id. and Exxon 6 NRC 873, 881 supra.)
l Finally, the AG has asked for leave to amend his Motion to Participate in order to more clearly set forth tne State's interests, the value of the AG's contribution and the AG's willingness to co-operate to avoid any delays to these proceedings.
If the amended motion is accepted the AG believes that even under the most stringent tests it will have the right to participate in this proceeding.
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b WHEREFORE, the AG respectfully requests that the Board grant the Motion and/or Amended Motion to participate of the New Mexico Attorney General.
Respectfully submitted JEFF BINGAMAN Attorney General Of The State Of New Mexico fi By kd b $.,x; {d RAND L. GREENFIELD S Assistant Attorney General P.O. Drawer 1508 Santa Fe, NM 87504-1508 Telephone: (505) 982-6097..
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CERTIFICATE OF SERVICE I hereby certify that copies of The Attorney General Of The State Of.fiew Mexico's Motion For Leave To Amend His Motion To Par-ticipate As An Interested Agency,0f The State Of New Mexico and The Attorney General's Response To Joint Applicant's Answer and NRC Staff Response To Motion To Participate As An Interested Agency Of The State Of New Mexico have been served upon tne following listed persons by deposit in the United States mail, properly addressed andwithpostageprepaid,this6 day of November,1981.
Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Richard F. Cole Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Ms. Patricia Lee Hourihan 6413 S. 26th Street Phoenix, Arizona 85040 Robert M. Lazo, Esq.
Chairman, Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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Dr. Dixon Callahan Union Carbide Corporation P.O. Box Y Oak Ridge, Tennessee 37830 Atomic Safety and Licensing Board Panel U.S. Nu' clear Regulatory Commission Washington, D.C. 20555 Henry J. McGurren, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Arthur C. Gehr, Esq.
Charles Bischoff, Esq.
Snell J. Wilmer 3100 Valley Center Phoenix, Arizona 85073 Al y
Assistant Attorney General