Oregon Environmental Council v. Atomic Energy Commission, Parties' agreement (May 2, 1972) to settle out-of-court, resulting in dismissal with prejudice of Oregon Environmental Council v. Atomic Energy Commission

No. 71-1230 (D.C. Cir. May 2, 1972)

Parties agree to an out-of-court settlement in which plaintiffs dismiss their suit against construction of the Trojan Nuclear Generator on the Columbia River north of Portland in exchange for further geophysical tests of the site and guarantees of near-zero radiation and chemical discharges.

Counsel for Intervenors
John J. Haugh
O'Connell, Goyak & Haugh
404 Oregon National Building
610 S.W. Alder Street
Portland, Oregon 97205

Counsel for Defendants
H. H. Phillips
Portland General Electric Company
621 S.W. Alder Street
Portland, Oregon 97205

Edward Dunkelberger, Jr.
Covington & Burling
888 16th Street, N.W.
Washington, D.C. 20006

Edmund B. Clark
Department of Justice
Washington, D.C. 20530

Marcus Rowden
General Counsel
Atomic Energy Commission
Washington, D.C. 20545

[2 ELR 20657]

MEMORANDUM OF AGREEMENT

The Oregon Environmental Council, Northwest Environmental Defense Center, Friends of the Earth, and Northwest Steelheaders Chapter of Trout Unlimited, Inc. (Intervenor) have agreed with Permit Holders on the conduct of certain geological investigations and certain operating discharge [2 ELR 20658] standards for the Trojan plant. The agreement as outlined below has met the objections of the Intervenors who now withdraw their objections to the licensing of the plant. Intervenors now support and endorse the construction and operation of the Trojan Nuclear Power Plant.

The Permit Holders have agreed:

1. To take whatever steps they find necessary to insure that all discharges from the plant into the Columbia River or its tributaries, are free from zinc, chromates, residual chlorine, and phosphates (as to phosphates, discharges shall be less than five pounds per day) other than such amounts thereof as may be found in the water taken into the plant from the Columbia River prior to use at the plant site. Petitioner environmental groups specifically recognize that such discharges from the plant will contain measurable amounts of sulfates, and do not object nor will they object in the future, to the presences of sulfates.

2. To conduct geophysical testing programs at the site of the plant, along the Columbia River, and under the same in the vicinity of the plant, as follows: a seismic refraction test, a detailed magnetic test, a detailed resistivity test, and a gravity test.

Such tests programs will be conducted by an independent geological testing concern. Chosen by a board of experts selected as follows: The Intervenor shall promptly name an independent geological expert. As soon as practical, the Permit Holders shall name a second independent geological expert. The two geological experts so named, shall meet promptly and agree on a third independent geological expert. A majority of the board so constituted shall appoint the independent geological concern to conduct the testing programs.

The geological concern so appointed shall complete the program as promptly as possible, and report all results in writing to the board.

As soon as practicable afterreceiving the results of the programs, the board shall analyze such results and formulate its report thereon as soon as possible, and in no event later than August 15, 1972. A majority of the board shall have authority to submit such report. The parties stipulate that the board shall submit the report to the Atomic Energy Commission for its information and consideration.

The Permit Holders agree to pay the costs of such testing programs and pay all reasonable fees and expenses incurred of the board in connection with preparation of the report as set forth above.

3. To take whatever steps are necessary to insure that the radioactive waste discharges of the Trojan Nuclear Power Plant fully comply with Sections I, III, and IV of Proposed Appendix I, of 10 CFR Part 50, as published in the Federal Register June 9, 1971 (36 FR 11113), regardless of whether or not those sections of Proposed Appendix I become adopted in final form by the Atomic Energy Commission. Permit Holders, in addition, agree not to exceed the effluent limits of Section IIA and IIB of said Proposed Appendix I, in such form as may finally be adopted following proceedings which the parties understand are presently being held.

Permit Holders agree to take whatever steps are necessary to insure that the radioactive waste discharge of the Trojan Nuclear Power Plant fully comply with Section IIC, and specifically with the provisions thereof limiting annual exposures to a level not exceeding 5 millirems.

4. To pay to the Intervenor Environmental groups their expenses incurred in connection with the Trojan plant proceedings before AEC, which the parties presently understand shall not exceed $15,000.

The undersigned Intervenor Environmental groups have agreed:

1. To withdraw their objection to the licensing of the plant.

2. To dismiss their case pending before the United States Court of Appeals for the District of Columbia Circuit, with prejudice and without costs.

3. To withdraw their request for a hearing regarding the Environmental Impact of the Trojan Nuclear Power Plant.

4. To withdraw all motions made on May 1, 1972 before the Atomic Safety and Licensing Board in the pending proceeding before said board to urge said board not to suspend construction of the Trojan Nuclear Power Plant.

5. Intervenors have agreed not to take any action in the future before the Atomic Energy Commission, the Federal Courts, or any other governmental agency which would tend to suspend, delay or bring into question further construction or operation of the Trojan Nuclear Power Plant, and have agreed not to intervene any agency or court proceedings in an attempt to urge suspension of the Trojan Nuclear Power Plant. The term Permit Holders means Portland General Electric Company, Eugene Water & Electric Board and Pacific Power & Light Company.

6. This agreement is subject to the conditions that no provision in violation of the requirements of the AEC shall be binding on any party.

If the Intervenors or the Permit Holders fail to perform their respective obligations under the foregoing, the parties may take whatever steps they deem necessary to enforce the agreements continued herein and agree that no objections shall be taken to the standing of the parties in bringing such administrative or legal action.