ML19261E376
| ML19261E376 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 05/18/1979 |
| From: | Davis L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7907060379 | |
| Download: ML19261E376 (12) | |
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NUCLEAR REGULATORY COMMISSION i
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c} O r d,d' BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ep p 9
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In the Matter of
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A to PUBLIC SERVICE COMPANY OF OKLAHOMA ASSOCIATED ELECTRIC COOPERATIVE, INC.
Docket Nos. STN 50-556 AND STN 50-557 WESTERN FARMERS ELECTRIC COOPEMTIVE, INC.
(Black Fox Station, Units 1 and 2)
NRC STAFF ANSWER TO STATE OF OKLAHOMA'S MOTION FOR INDEFINITE STAY ON ISSUANCE OF AN INITIAL DECISION AND INTERVENORS' MOTION TO REOPEN THE RECORD 1.
B_adground In a Motion dated April 19, 1979, the State of Oklahoma, a party herein, through its Attorney General, asked that the Atomic Safety and Licensing Board indefinitely postpone issuance _of an Initial Decision in the matter of the application of the Public Service Company of Oklahoma, et al., for a construction pennit for Black Fox Station, Units 1 and 2.
The State of Oklahoma asked that the issuance of the Initial Decision be postponed pending completion of hearings by th,e Oklahoma State Corporation Commission relative to Public Service Company's ability to finance Black Fox Station and pending an investigation of the safety significance of the Three Mile Island, Unit 2 (TMI-2) accident.
The State of Oklahcma's reasoning in r^ questing a stay is twofold:
- first, the State alleges that the financial ramifi.stions of 'he TMI-2 accidet
"...could show a fundamental change in circumstances concerning 350's 7907060379
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. financial qualifications." (emphasis added.) Second, the State is interested in the " safety significance" of the iMI-2 accident.1/ The stay is sought, in the words of the State, "...in order to preserve the Board's discretion to reopen the record if more recent data suggest a significant change in circumstance"2_/ under the provisions of 10 C.F.R. 52.718(j).3_/
On April 27, 1979, the Intervenors submitted their response to the State's Motion to Stay in which they also raised the financial qualifications issue and the TMI-2 safety investigation concerns and added two additional items of '5eir own on post accident monitoring and the safety significance of Class 9 accidents.AI Since the financial qualification and TMI-2 safety investigation issues raised by the Intervenors track the same issues raised by the State, and the post-accident monitoring issue is tied in with the TMI-2 safety investigation, 1/ State Motion to Stay at 2, 3.
2/ Id. at 8.
3/ A stay in this case is no:. necessary to as.;ure that the matter is litigable by the NRC.
For instance, while Appeal Board review is pending and prior to the time that exceptions to an initial decision on a CP application are filed, motions for the Licensing Board to reconsider its inital decision and/or reopen the record because of new safety related issues can be made pursuant to 10 C.F.R. %2.771.
Even if an initial decision were to be rendered by the Licensing Board and the reconsideration period expired, the Appeal Board or Commission could, on the basis of its sua sconte review powers, consider all issues which have a bearing on the major safety and environmental aspects of the plant.
If a CP had been issued, a motion to show cause under 10 C.F.R. 52.202 pursuant to 10 C.F.R. 52.206 would lie.
1/ Intervenors' April 27 Response to State of Oklahoma's Motion to Stay at 1-4, 7.
Since the Intervenors' Response both supports the State Motion and adds concerns of its own, the Staff will 'reat both of them as motions and reply to them at the same time.
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. the first two parts of this brief will address, on a consolidated basis, the State and Intervenors' positions on those two issues.
In addition, since the Intervenors' Response to the State's Motion raises a third concern about reopening the record for a discussion of Class 9 accidents, a discussion of merits of that proposition will also be contained in this consolidated response to both pleadirigs.
For the reasons listed below, the NRC Staff believes that the State's and Intervenors' Motions should be denied in part and grantee in part.
II.
Discussion A.
The Legal Test On motion for a stay on the one hand by the State and a motion to reopen by the Intervenors on the other hand, the question arises as to the legal test ap-plicable to these motions.
Although a motion to stay would normally be addressed under the criteria of the Virginia Petroleum Jobbers case which has been codified c 10 C.F.E. 52.788(e)1/ the Staff believes that what in reality is sought by the State is a stay while the matter of TMI is investigated and then later a reopening of the record for a hear 1 rig on oc.: the results of these investigations wiii affect Black Fox. Accordingly, the Staff believes the proper approach to an analysis of the essence, if not the actual form, of these two motions entails the use of the criteria for reopening set forth in the 1/ Virginia Petroleum Jobbers Assn. v. Federal Power Commissicn, 259 F.2d 921 (D.C. Cir. 1958).
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_4 Vermont Yankee Power Corporation case,1I for if they do not meet the legal requirements to. reopen, then a stay would serve no useful purpose.
Thus the controlling test in this instance is whether a serious new environmental or safety concern has been raised which would warrant the reopening of the record in this case.2_/
B.
Financial Qualifications In regard to financial qualifications, the State and Intervenors maintain that there may have been a substantial change of circumstances en capital availability since the date of the Staff's evaluation of Public Service Company's financial qualifications _/ due to inflation, new construction 3
delays, and the possible effect of the recent nuclear accident at TMI, both in terms of stock prices, cost of obtaining money and bond ratings.O The Staff notes that with one exception, +'
concerns of the State of Oklahoma and Intervenors listed above come from experiences of the owners of TMI or other reactors. None of the items cited have yet been shown to have 1/ Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
ALAB-138, 6 AEC 520 (1973).
2/
Id.
3/ Testimony on the financial qualification of Applicants was heard on October 11, 1978 in this proceeding, and is covered on pages 113-119 of the Staff's Findings of Fact.
-4/ State Motion to Stay at 5, 6; Attachment to Stay Motion entitled " Application and Complaint" before the Oklahoma Corporation Ccmmission, dated April 12, 1979.
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, happened at Black Fox.
For this reason, the gist of the Motion to stay and Reopen must be that these incidents "...could raise new questions in the instant proceeding..." ll (Emphasis added). In essence, what the State asks is that the NRC stay its hand in issuance of an Initial Decision in this case on the rather speculative chance that their hearings (which the Staff under-stands have not been scheduled ye+ and thus no completicn date is known) will raise new relevant information about the Applicants' financial qualifications which would somehow affect the record in the NRC proceeding in Black Fox.
The Staff submits, as will be shown below, that the presentation of such a speculative argument is not an adequate factual or legal basis to either stay or reopen the instant proceeding.
In response to the allegation cited by the State that the REA has estimated that the proposed plant will cost $2.9 billion 7and that the Applicant's 1978 Annual Report says that a major reanalysis of the scheduled completion dates is in preparation which would result in a significantly increased cost estimate for BFS,1/ the Staff would point out that the NRC's responsibility in the area of financial qualifications is, as noted in the State's motion, to ascertain whether:
1/ State Motion to Stay at 7, 8.
2] Motion to Stay at 5 citing REA FEIS of August 1978 at 50.
3/ Motion to Stay at 6 citing PSO 1978 Annual Report at 14.
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.... applicant possesses the funds necessary to cover estimated construction costs and related fuel cycle costs or that the applicant has reasonable assurance of obtaining the necessary funds, or a combination of the two.
10 C.F.R. 550.33(f); Public Service Company of New Hamschire (Seabrook Station, Uniti 1 and 2), CLI-78-1, 7 NRC 1 at 18 (1978).
Even assuming, arguendo, that the REA figure of $2.9 billion is an accurate estimate of the cost of Black Fox and that this figure is substantially above previous estimates, on the basis of the regulation and caselaw cited above, the issue before this Licensing Board is whether there is a reasonable assurance the Applicants possess or are able to obtain the money needed to cover estimated construction costs and related fuel cycle costs. The Licensing Board's task is not, as the Motion implies, to make a determination at the safety hearings as to whether it is wise for a utility to spend that amount of money. As should be apparent from the REA's grant of a loan commitment to the Co-Applicants Associated and Western,1/ even if the ultimate cost were $2.9 billion,2_/that Federal agency considers the amount of meney loaned to be sufficient to cover construction costs. For these reasons, new evidence consisting of a discussion of the inflated costs of Black Fox would not be helpful to illuminate financial qualifications as a safety issue and therefore would not furnish an adequate ground to reopen the record on this issue.E 1/ REA loan commitments, App. Exhs. 44 A-D.
?/ The Staff understands from discussions with REA that the $2.9 billion 2
figure includes fuel and substation costs not included in the other plant cost estimates presented to the Licensing Board.
E The total cost of the plant might be relevant from an environmental standpoint if the costs were so high as to tip the NEPA cost-benefit balance, a situation not present in these safety hearings.
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. In regard to the State and Intervenors' coccents about costs of floatina bonds, the classification of bond ratings and rate increases needed by other utilities such as Vepco and Metropolitan Edison, the NRC Staff believes that to stay this proceeding on such a ground would be speculative at best since it under-stands that none of these financial factors have changed for BFS since the Staff's financial review.O or tnis reason, the NRC Staff believes that this portion F
of the motion does not satisfy the dictates of Vermont Yankee, suora, and should be denied without prejudice to raising the matter again if the State's hearings or the Staff's re-review of the new financial data submitted by Applicants establishes solid evidence which could be shown to have a realistic effect on changing the financial qualifications status of th. Applicants.
C.
Class 9 Accidents Intervenors seek, by way of their Motion to Reopen, litigation of what they describe as a Class 9 Accident issue which they claim was thought to be incredible before TMI-2 since the likelihood of the occurrence of such an accident was thought to be so low as to present a negligible risk. ! However, the NRC Staff believes that in regard to Class 9 accidents, the motion to reopen is objectionable.
First, the Intervenors' request to litigate Class 9 accidents generally is so generalized as to not give the Staff and other parties reasonable notice of the issue to be litigated and the witnesses which would need to be 1/
In tnis regard, the Staff is currently in the process of reanalyzing the new BFS financial data submitted under the Gallo cover letter of April 30, 1979.
2/
Intervenors' Response to State of Oklahoma's Motion to Stay at 2-6.
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. presented on the matter.E oreover, under existing caselaw and policy, an M
inquiry into a Class 9 matter will not normally be permitted, absent a showing of special circumstances not present when the Commission promulgated the proposed Appendix D to 10 C.F.R. Part 50.2_/ For these reasor.s, the Staff believes that this part of Intervenors' Motion should be denied except insofar as the allegations relate to the safety ramifications of TMI-2 and post-accident monitoring issues which are addressed below.
D.
Ramifications of Safety Information from Three Mile Island and Post Accident Monitoring In regard to the third ground for a stay of the Initial Decision and/or reopening the record to investigate the TMI-2 accident, while the situation at TMI can be distinguished in several different ways from Black Fox in terms of the type of reactor under review, the stage of completion of TMI ve-s Black Fox and the intervening time period between co.nstruction and ' operation, the Staff nonetheless believes that a reasoned review of the applicability of TMI to Black Fox is needed. The Staff also believes that the Intervenors' post accident monitoring concern is so similar in nature to the State's TMI-2 safety investigation issue that this issue should also be incorporated into such an inquiry.
1/ A credible mechanism Class 9 Contention was admitted in this case, Third Prehearing Conference Order dated March 9,1979 and May 25, 1977 Licensing lard Memorandum and Order. While testimony was given on the Class 9 Contention by Staff witnesses Thadani at 65-7 to 65-8 fol. Tr. 7263, no testimony was presented by Intervenors on this subject. See Minor testimony fol. Tr. 7345.
-2/ A description of the permissibility of litigation of Class 9 accident effects is discussed in Offshore Power Systems (Floating Nuclear Power Plants), ALAB-439, 8 NRC 194 (1978).
That decision contains a discussian of Class 9 accidents and the Court of Appeals ' decision which upheld the Commission's position set fortn in the proposed Appendix D to 10 C.F.R. Part 50, 36 Fed. Rec. 22851 (December 1,1971).
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. It is well settled that the f1RC Staff is under a legal obligation to keep the Licensing Board, Appeal Board and Commission apprised of the status of relevant and material safety matters.N In that regard, the NRC Staff will conduct a review to determine whether supplementation or correction of the record in this case is necessary and will present the results of its review on as timely a basis as is possible under the circumstances.UFor this reason, the Staff asks that a decision on the matter of reopening the record for the TMI and post-accident monitoring issues be delayed pending this review.
If the review is not completed within 30 days, the NRC Staff will inform the Board and parties of the proposed schedule of review at that time.
III.
Conclusion For the reasons listed above, the NRC Staff believes that the Motions to Stay the Initial Decision and/or Reopen for financial qualification matters should be denied without prejudice to raising the matter again if State hearings
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e.g. Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2),
ALAB-143, 6 AEC 623, 625-26 (1973).
2/
In view of the TMI-2 safety investigation described above, the State hearings and the Staff financial re-review together with an investigation of the safety ramifications of TMI-2 on Black Fox could proceed in tandem as permitted by NRC caselaw, Wisconsin Electric Pcwer Comoany, et al. (Koshkonong Nuclear Plant, Units 1 and 2), CLI-74-45, 8 AEC 928, 930 (1974), without any attendant loss of Licensing Board jurisdiction during that period.
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. or the Staff's financial analysis re-review should show solid evidence of a diminution of the Applicant's financial qualifications.
In addition, since the assertion on Class 9 accidei.ts is so generalized and unspecific as to not give the parties fair notice of the matters which would be litigated, Intervenors' Motion to Reopen on that score should be denied. However, the Staff asks that the Board defer its ruling on the Motions to Suy or Reopen until the safety ramifications of the TMI-2 accident (including post-accident monitoring) have been evaluated by the Staff and the Board and parties advised of the applicability, of any, of that data to the Black Fox Station proceeding.
Respectfully submitted, r
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as u LT Dow Davis Counsel for NRC Staff Dated at Bethesda, Maryland this 18th day of May,1979.
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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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PUBLIC SERVICE COMPANY OF OKLAHOMA,
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Docket Nos. STN 50-556 ASSOCIATED ELECTRIC COOPERATIVE, INC.
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STN 50-557 AND
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WESTERN FARMERS ELECTRIC COOPERATIVE, INC.
(Black Fox Station, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER TO STATE OF OKLA!iOMA'S MOTION FOR INDEFINITE STAY ON ISSUANCE OF AN INITIAL DECISION AND INTERVENORS' MOTION TO RE0 PEN THE RECORD" dated May 18, 1979, in the above-captioned proceeding, have been served on the following, by deposit in the United States mail, first class, or, as indicated by an asterick through deposit in the Nuclear Regulatory Commission's internal mail system, this 18th day of May,1979.
- Sheldon J. Wolfe, Esq.
Michael I. Miller, Esq.
Isham, Lincoln & Beale Atomic Safety and Licensing Board One 1st National Plaza U.S. Nuclear Regulatory Commission te 240 Washingtun, D. C.
20555 g
llinois 60606
- Mr. Frederick J. Shon, Member Mrs. Carrie Dickerson Atomic Mafety and Licensing Board Citizens Action for Safe Energy. Inc.
U.S. Nuclear Regulatory Commission P. O Box 9 Washington, D. C.
20555 g
g lahoma 74107 Dr. Paul W. Purdom Director, Environmental Studies Group Mr. Clyde Wisner Drexel University NRC Region 4 Public Affairs Officer 32nd and Chestnut Street Philadelphia, Pennsylvania 19104 611 Ryan Plaza Drive Suite 1000 Joseph Gallo, Esq.
Arlington, Texas 76011 Isham, Lincoln & Beale Andrew T. Dalton, Jr., Esq.
1050 17th Street, N.W.
o Wasnington, D. C.
20036 Attorney at Law 1437 South Main Street, Room 302 Tulsa, Cklahoma 74119 Mrs. Ilene H. Younghein 3900 Cashion Place Oklahoma City, Oklahoma 73112
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- Atomic Safety and Licensing Mr. T. N. Ewing Appeal Board Acting Director U.S. Nuclear Regulatory Commission Black Fox Station Nuclear Project Washington, D. C.
20555 Public Service Company of Oklahoma P. O. Box 201
- Docketing and Service Section Tulsa, Oklahoma 74102 Office of the Secretary of the Commission Dr. M. J. Robinson U.S. Nuclear Regulatory Commission Black & Veatch Washington, D. C.
20555 P.O. Box 8405 Kansas City, Missouri 64114
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Lawrence Burrell Route 1, Box 197 Fairview, Oklahoma 73737 Mr. Gerald F. Diddle General Manager Associ.ated Electric Cooperative, Inc.
P.O. Box 754 Springfield, Missouri 65801 Mr. Vaughn L. Co uad Public Service Company of Oklahoma P.O. Box 201 Tulsa, Oklahoma 74102 Joseph R. Farris, Esq.
Robert Franden, Esq.
Green, Feldman, Hall & Woodard 816 Enterprise Building
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Tulsa, Oklahoma 74103
- i S Alan P. Bielawski nsel for NRC Staff Isham, Lincoln & Beale One First National Ploza Suite 420')
Chicago, Illinois 60603 Mr. Maynard Human General Manager Western Farmers Coop., Inc.
P. O. Box 429 Anadarko, Oklahoma 73005
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