ML19224C829
| ML19224C829 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 05/17/1979 |
| From: | Gallo J ISHAM, LINCOLN & BEALE |
| To: | |
| References | |
| NUDOCS 7907060515 | |
| Download: ML19224C829 (8) | |
Text
NRC PUBiMC DOCUMENT ROOM
/17 m UNITED STATES OF AMERICA NUCLEAR REGULATORY CO.'OIISSION BEFORE THE ATOMIC SAFET) A"D LICENSI"G BOARD In the Matter of the Application of
)
Public Service Company of Oklahoma,
)
Associated Electric Cooperative, Inc.) Docket Nos. STN 50-556 and
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STN 50-557 Western " armers Electric Cooperative )
l?w (Black Fox Station, Units 1 and 2)
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STAFF'S\\'
y,. e APPLICANTS' REPLY TO THE NRC b
FINDINGS OF FACT CONCERNINC ECCS
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MATTERS
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On May 9, 1973, the NRC Staff filed findings of fact on Board Questions 2-1, 2-2 and 2-3, and evidence con-corning results of the LPCI diversion analysis for Black Fox Station and the results of certain tests conducted in the Two Loop Test Apparatus facility located in Idaho.1/
These findings of fact 2/ were attached to NRC Staff Counsel's letter of May 9, 1979 (hereinaft.
rferred to as the " Letter" or the "May 9 Letter").
In that Letter, three to::hnical areas are identified which allegedly cause concern as to whether 1/
In the Notice of Filing Applicants' Reply to Proposed Findings of Facts and Conclusions of Law of the NRC Staff and the Intervenors, dated April 26, 1979, Applicants respectfully reserved the opportunity to reply to the prcposed findings of fact filed by the NRC Staff on ECCS matters.
2_/
In these findings of fact, the NRC Staff concludes generally that on the present hearing record reasonable assurance exists that Black Fox Ste' on can be construc-ted without undue danger to the het th and safety of the public.
(Findings, Paragraphs 30, 35, 38, 43 and 45).
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. the testimony previously submitted by the NRC Staff needs modification.
It is further stated that the Staff is
" filing a draft of our proposed ECCS findings which re-flect the record as it stood at the close of the hearing in February of this year" and that when the problems with GC are resolved, the NRC Staff 'will submit to the Board any necessary amendments of the enclosed draft proposed findings."
For the reasons set forth below, the Atomic Safety and Licensing Board
(" Licensing Board") snould dis-regard the Letter of May 9, 1979, and treat the findings enclosed therewith as final, thereby making tne Black Fox record ripe for decisions.3/
The NRC Staff's actions in this matter are in-consistent with established NRC practice as set forth in 10 C.F.R. Part 2, and, constquently, the Letter presents a procedural anomaly.
The Letter'
'm ose seems to be to present a notification under the Met.re doctrine,A/and a request for a st v of the Licensing Esard's decision-making 3/
Applicants are mindful, of course, that the Licensing Board's disposition of polding motions filed by the Attorno" General of the State of Oklahoma and the Inte-1 could, if granted, interrupt the decision-makin3
. cess.
4/
In the Matter of Duke Power Company (William B.
McGuire Nuclear Station, Units 1 and 2), ALAB-143, 5 AEC 632, 625 (1973).
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b process so that if needed, additional f lings of fact on extra-record information would be submitted in the "next month or two".5/
Applicants do not object to the filing of information with the Licensing Board and parties, no matter how tangential to the issues at hand, to satisfy the requirements of McGuire.6/ Doubt as to the significance or relevance of information should tilt in favor of dis-closure.1!
Applicants do object, however, to the presumptuous course adopted by the NRC Staff.
No motion was filed pursu-ant to 10 C.F.R.
S 2.730 which would afford interested parties the opportunity to respond.
No leave was requested of the Licensing Board to defer its decision-making process while the NRC Staff pursued its discussions with the General Electric Company.
Instead, we are told that we will be kept
" informed of progress in this matter".
The NRC Staff does
-5/
- Letter, p.
2, final paragraph.
Applicants are puzzled by the implication in the Letter that somehow the NRC Staff can file amended findings of fact based on in-formation developed after the hearing record is closed.
Applicants are aware of no legal precedent that would support that view.
~6/
It should be emphasized that the mere act of providing new information pursuant to the mandate of McGuire does not constitute a concession that the information is relevant and material to the issues under considera-tion.
In the Matter of Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2,
3, and
- 4) LBP-78-2,7 NRC 83, 88 (1978).
7/
Applicants believe the matters referred to in the May 9 Letter are more properly raiseQ.)as gegazig mat-ters under GESSAR-238.
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c4J not enjoy a preferred status as a party to a licensing proceeding.
Like all such parties, the NRC Staff must conduct the course of their participation in accordance with NRC's Rules of Practice and administrative and ju-dicial precedent.
The r unilateral action of attempting to stay the Licensing Board's decision-making process by filing " draft" findings or fact or the basis of alleged new information au base of the licensing process and it should nou bc cc mLenanced by this Licensing Board.
The 'ro)--
turse for the Staff was and still is either of two act.o >.
Tney could move for a stay in the proceedings, and attempt to rucet the test established by the United States Supreme Court for such a stay.1/
A more responsible approach would be to evaluate immediately the matters and concerns referred to in the May 9 Letter.
Then the Staff could either nove to reopen the hearing record if Uley identify a matter of significance within the standard established by the Atomic Safety and Licensing Appeal Board
-8/
Applicants note that the explanation of the three mat-ters related to the NRC Staff's generic review of GE's ECCS model under 10 C.F.R.
S 50.46 and Appendix K was provided by counsel.
No supporting affidavit from a qualified expert was offered.
9/
Landis v.
North American Company, 299 U.S. 248 (1936).
For a full discussion of the legal standard governing an application for a stay of an ongoing proceeding, see
" Applicants' Answer To The Motion of The Attorney General For The State of Oklahoma For An Indefinite Stay of The Issuance Of An Initial Decision" filed on May ll, 1979.
295 224 in Vermont Yankee 10/; or as Applicants believe to be the proper course, they could remove the cloud placed on this proceeding by the May 9 Letter by advising that no con-cerns exist or that the subject is more properly handled with GE as a generic matter.
Motions to stay proceedings or to reopen hearing records require substantial factual and legal justification to succeed on the merits.
The NRC Staff cannot be permitted to avoid these responsibilities through the mechanism of a letter wherein they seek to achieve a delay in the proceed-ings by unilaterally declining to file " final" findings of fact.
It is sometimes the practice in NRC proceedings for a licensing board to treat an inartfully drawn request for relief as though it were properly drawn.
This is not unusual when such requests are filed by intervenors who are either pro se or represented by counsel unfamiliar with the intricacies of the NRC's Rules of Practice.
In these circumstances. the lack of support for the relief requested or assumed to be requested is not considered as a sufficient basis for denial by the cognizant Atomic Safety and Licensing Board; and as a consequence, the applicant and the NRC Staff 10/
In the Matter of Vermont Yankee Nuclear Power Coro.,
(Vermont Yankee Nuclear Power Station), ALAB 138, 6 AEC 520, 523 (1973).
295 225 are then called upon to assume the burden of demonstrating why the postulated request for relief should not be granted on the merits.
This practice should not be employed here.
The indulgences granted pro se parties and counsel un-familiar with NRC practice are hardly justified in the case of the NRC Staff.
The NRC Staff as the preceptor and guardian of MRC's Rules of Practice should be held to the highest standard.
If the NRC Staff believes their position has merit, a proper motion should be filed.
Until then, the May 9 Letter should be disregarded and the Licens-ing Board should continue its decision-making process.
Respectfully submitted, y
seply Gallo One of the Attorneys for the Applicants Isham, Lincoln & Beale 1050 17th Street, N.
W.
Suite 701 Washington, D.C.
20036 (202) 833-9730 May 17, 1979 295 226
UNITED STATES OF AMERICA NUCLEAR REGULATORY CO:011SSION BEFORE THE ATOMIC SAFETY AND LICENSIIiG BOARD In the Matter of the Application of
)
Public Service Company of Oklahoma,
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Associated Electric Cooperative, Inc.) Docket Nos. STN 50-556 and
)
STN 50-557 Western Farmers Electric Cooperative )
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(Black Fox Station, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing APPLICANTS' REPLY TO NRC STAFF'S FINDINGS OF FACT CONCERNING ECCS MATTERS has been served on each of the following persons ty deposit in the United States mail, first class postage prepaid, this 17th day of May, 1979.
Sheldon J.
Wolfe, Esquire Docketing and Service Section Atomic Safety and Licensing Office of the Secretary of Doard Panel the Commission U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 (20 copies)
Mr. Frederick J.
Shon, Member Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr. Paul W.
Purdom, Direc tor Atomic Safety and Licensing Environmental Studies Group Appeal Board Panel Drexel University U.S.
Nuclear Regulatory 32nd and Chestnut Streets Commission Philadelphia, Pennsylvania 19104 Washington, D.C.
20555 295 227
L.
Dow Davis, Esquire Mr. Gerald F.
Diddle William D.
Paton, Esquire General Manager Colleen Woodhead, Esquire Associated Electric Cooperative, Inc.
Counsel for NRC Staff P.O.
Box 754 U.S.
Nuclear Regulatory Springfield, Missouri 65801 Commission Washington, D.C.
20555 Mr. Maynard Hun.an General Manager Joseph R.
Farris, Esquire Western Farmers Electric Cooperative John R. Woodard, III, Esquire P.O.
Box 429 Green, Feldman, Hall & Woodard Andarko, Oklahoma 73005 816 Enterprise Building Tulsa, Oklahoma 74103 Mr. Vaughn L.
Conrad Public Service Company of Oklahoma Mr. Clyde Wisner P.O.
Box 201 NRC Region 4 Tulsa, Oklahoma 74102 Public Affairs Officer 611 Ryan Plaza Drive Mr.
T.
N.
Ewing, Manager Suite 1000 Black Fox Station Nuclear Project Arlington, Texas 76011 Public Service Company of Oklahoma P.O.
Box 201 Andrew T.
Dalton, Esquire Tulsa, Oklahoma 74102 1437 South Main Street Room 302 Mr.
M.
J. Robinson Tulsa, Oklahoma 74119 Black & Veatch P.O.
Box 8405 Mrs. Carrie Dickerson Kansas City, Missouri 64114 Citizens Action for Safe Energy, Inc.
George L.
Edgar, Esquire P.O.
Box 924 Kevin P.
Gallen, Esquire Claremore, Oklahoma 74107 Morgan, Lewis & Bockius Suite 700 Mrs. Ilene H.
Younghein 1800 M Street, N.W.
3900 Cashion Place Washington, D.C.
20036 Oklahoma City, Oklahoma 73112 Charles S.
l<o g e r s, Esquire Mr. Lawrence Burrell Assistant Attorney General Route 1, Box 197 112 State Capitol Building Fairview, Oklahoma 73737 Oklahoma City, Oklahoma 73105 Martha E.
Gibbs Mr. Gregory Minor Michael I.
Miller MHB Technical Associates Isham, Lincoln & Beale 1723 Hamilton Avenue One First National Plaza Suite K Suite 4200 San Jose, California 95125 Chicago, Illinois 50603 sa.c 9./hl-Joc#eph Gallo eo the Attorneys for the Applicants 9
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