ML19250B607
| ML19250B607 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 09/25/1979 |
| From: | Davis L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 7911010185 | |
| Download: ML19250B607 (6) | |
Text
NRC PGELIC DOCUMENT Rooy
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- 6 goj.@k cfc? 'g$h UNITED STATES OF AMERICA
(
cp.h, NUCLEAR REGULATORY COP 14ISSION Q
BEFORE THE COMMISSION
,j In the Matter of
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)
PUBLIC SERVICE COMPANY OF OKLAHOMA,
)
Docket Nos. STN 50-556 ASSOCIATED ELECTRIC COOPERATIVE, INC.
)
M AND
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WESTERN FARMERS ELECTRIC COOPERATIVE, INC.
)
)
(Black Fox Station, Units 1 and 2)
)
NRC STAFF RESPONSE TO MOTION F0~. C0F111SSION ACTION S tatemen t On September 5,1979, Counsel for Public Service Company of Oklahoma, et al.l filed the instant Motior, for Commission Action 1I calling for the Nuclear Regulatory Commission to (1) reject what the Applicants termed the demand of the President's Commission on the Accident at Three Mile Island (Kemeny Commis-sion) to call a nuclear licensing moratorium, (2) adopt the NRC Staff's recom-mendation to resume licensing based on the implementation of the Three Mile Island-related licensing requirements set forth in Mr. Denton's memorandum to the Commission dated August 20, 1979, and (3) direct the Black Fox Licen1ing Board to reopen the safety hearing record to consider TMI issues pertinent to the Black Fox Station. Motion at 1.
In support of its Motion the Applicants assert that the relief sought is necessary to expedite the timely disposition of the present proceedings and that the policy guidance it has requested from M
A motion asking for similar action is pending before the Atomic Safety and Licensing Board in this case.
6 1273 288 7911010
the Commission is appropriate in that "[ilt is undisputed that the Commission has the inherent power to intercede and to provide direction with respect to any proceeding before any NRC tribunal at any time." Motion at 7.
For the reasons set forth below, the NRC Staff interposes its objection to the granting of the present motion.
Discussion In the present proceeding neither the Licensing Board nor the Appeal Board has ruled upon the Applicants' and Intervenor's motion to reopen the record, and neither Board has certified any question regarding this issue to the Corm 11ssion for its determinatior, pursuant to 10 CFR 52.718(i) or 52.785(d).
Nor have the Applicants pointed to any erroneous decision or action by the Boards "with respect to an important question of fact, law, or policy."
10 CFR 52.786(b}(1).
Thus, in its present procedural posture there exists no ruling of the Licensing Board or the Appeal Board over which the authority provided in 10 CFR 52.786 can properly be exercised. And as expressly set forth in the Corrmission's regulations (10 CFR 52.786(b)(9), "[e]xcept as provided in this section and section 2.788, no petition or other request for Comission review of a decision or action of an Atomic Safety and Licensing Appeal Board will be entertained."
WHla we are, of course, not unmindful of the inherent authority of the Comission to " step into a proceeding and provide guidance on important issues of law and policy" (United States Eneray Research and Development Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67, 76 (1976)), we nonetheless do not believe such a departure from the Commission's normal practice of review 1273 289
. is appropriate in the prescot proceeding.
Indeed, as the Commission observed, "the delays and confusions which can be produced by interlocutory review argue
....for sparing use of this authority".
Ibid.
Therefore, where, as here, the Applicants are seeking an interlocutory appeal to the Commission prior to any decision or action by the Licensing Board or the Appeal Board on the issues presented, the relief sought is clearly improper and should not be permitted.2 Moreover, the relief which the Applicants are seeking - policy guidance to the Licensing and Appeal Boards on the handling of Three Mile Island related issues -
is currently being addressed by the Commission. The Commission has met in public meetings with the Staff and the Chairmen of the Licensing and Appeal 30ards in seeking to reach a solution to this problem which will be applicable to all pending cases.E However, since the issue presented is generic in nature, its resolution is not dependent upon the Commission's review of any particular case. Therefore, no useful purpost can be served by the granting of the Applicants' present request that the Commissian's review of this issue be conducted in the factual setting of the Black For. proceeding.
2] As discussed above, while the present motion is precedurally impermissible, this is not to say that the views expressed therein should be disregarded by the Commission.
The Staff believes that it would not be inappropriate for the Commission to give Public Service Company of Oklahoma's suggestions in this regard the same consideration given communications addressed to the Comission from other interested persons and/or parties in cases pending before Licensing and Appeal Boards.
(See,e.a., letter from John W. Ellis, President, Puget Sound Power & Light Company to Joseph M. Hendrie (August 31, 1979); letter from David S. Fleischaker, Counsel to Center for Law In the Public Interest to Joseph M. Hendrie (September 13,1979).
3j The Commission has scheduled a further meeting on this subject for September 28, 1979.
12/3 290
. Thus, in that the review presently sought by the Applicant is not countenanced by the Commission's regulations or necessary for the relief which is requested, the present motion is impermissible and should be denied in all respects.
CONCLUSION For the foregoing reasons, the pending Motion for Commission Action should be denied.
Respectfully submitted, GS Cuk L. Dow Davis Counsel for NRC Staff Oated at Bethesda, Maryland this 25th day of September,1979.
1273 29i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DEre,E THE COMMISSION In the Matter of
)
)
PUBLIC SERVICE COMPANY OF OKLAHOMA,
)
ASSOCIATED ELECTRIC COOPERATIVE, INC. )
AND
)
Docket flos. STN 50-556 WTSTERN FARMERS ELECTRIC COOPERATIVE, )
STN 50-557 INC.
)
)
(Black Fox Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO MOTION FOR COMMISSION ACTION" dated September 25, 1979, in the above-captioned roceeding, have been served on the following, by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system this 25th day of Se;tember, 1979.
- Mr. Joseph M. Hendrie, Chairman
- Sheldon J. Wol fe, Esq.
U.S. Nuclear Regulatory Commissiun Atomic Safety and Licensing Board Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Mr. Victor Gilinsky U.S. Nuclear Regulatory Comm'ssion
- Mr. Frederick J. Shon Washington, D. C.
20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission
- Mr. Ri:. nard T. Kennedy Washington, D. C.
20555 U.S. huclear Regulatory Commission Washington, D. C.
20555 Dr. Pau~. d. Purdom, Director Environmental Studies Group s
- Mr. Peter A. Bradford Drexel University U.S. Nuclear Regulatory Commission 32nd and Chestnut Street hshington, D. C.
20555 Philadelphia, Pennsylvania 19104
- Mr. John F. Ahearne Joseph Gallo, Esq.
U.S. Nuclear Regulatory Commission Isham, Lincoln & Beale Washington, D. C.
20555 105017th Street, N.W.
Washington, D. C.
20036 Richard S. Salzman, Chairman Atomic Safety and Licensing Appeal Michael I. Miller, Esq.
Board Isham, Lincoln & Beale U.S. Nuclear Regulatory Commission One 1st National Plaza Washington, D. C.
20555 Suite 2400 Chicago, Illinois 60606
- Dr. W. Reed Johnson Atomic Safety and Licensing Appeal
- Jerome E. Sharfman, Esq.
Board U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Appeal Board Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 1273
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Mrs. Carrie Dickers.n Alan P. Bielawski Citizens Action for Tafe Energy, Inc.
Isham, Lincoln & Beale P.O. Box 924 One First National Plaza Claremore, Oklahoma 74017 Suite 4200 Chicago, Illinois 60603 Jan Eric Cartwright, Esq. &
Charles S. Rogers Mr. Gerald F. Diddle Attorney General General Manager State of Oklahoma Associated Electric Cooperative, Inc.
112 State Capitol Bldg.
P.O. Bo> 754 Oklahoma City, Oklahoma 73105 Springf eld, Missouri 65801 Mr. Clyde Wisner Mr. Mi u rd Human NRC Region 4 Genera' Manager Public Affairs Officer Wester; Farmers Coop., Inc.
611 Ryan Plaza Drive P.O. Box 429 Suite 1000 Anadarko, Oklahoma 73005 Arlington, Texas
~' 11 Dr. M. J. Robinson Andrew T. Dalton, Jr., Esq.
Black & Veatch Attorney at Law P.O. Box 8405 1437 South Main St., Room 302 Kansas City, Missouri 64114 Tulsa, Oklahoma 74119
- Atomic Safety and Licensing Mrs. Ilene H. Younghein Appeal Panel 3900 Cashion Place U.S. Nuclear Regulatory Commission Oklahoma City, Oklahoma 73112 Washington, D. C.
20555 Paul M. Murphy
- Atomic Safety and Licensing Board Isham, Lincoln & Beale Panel One First National Plaza U.S. Nuclear Regulatory Commission Suite 4200 Washington, D. C.
20555 Chicago, Illinois 60603
- Docketing and Service Section Lawrence Burrell Route 1. Box 197 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Fairview, Oklahoma 73737 Mr. T. N. Ewing Acting Director Black Fox Station Nuclear Project Public Service Company of Oklahoma P.O. Box 201 Tulsa, Oklahoma 74102 Mr. Vaughn L. Conrad
.s Public Service Company of Oklahoma G ' ? I'W P.O. Box 201 L. Dow Davis Tulsa, Oklahoma 74102 Counsel for NRC Staff Joseph R. Farris, Esq.
John R. Woodard III, Esq.
Feldman, Hall, Franden, Reed & Woodard 816 Enterprise Building j 2]3 '293 Tulsa, Oklahoma 74103 9