ML19294B716
| ML19294B716 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 03/03/1980 |
| From: | Davis L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-573, NUDOCS 8003050393 | |
| Download: ML19294B716 (10) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
PUBLIC SERVICE COMPANY OF OKLAHOMA,
)
ASSOCIATED ELECTRIC COOPERATIVE, INC. )
Docket Nos.
STN 50-556 AND
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STN 50-557 WESTERN FARMERS ELECTRIC COOPERATIVE, )
INC.
)
)
(Black Fox Station, Units 1 and 2)
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NRC STAFF RESPONSE TO APPLICANT'S MOTION TO DISMISS CLASS 9 ACCIDENT IN0VIRY I.
Introduction and Backoround During the course of the Appeal of the Partial Initial Decision on Environ-mental and Site Suitability Matters in this caseN (PID), Joint Intervenors alleged that the Nuclear Regulatory Commission's (Commission's) recently issued policy statement ("...Polie-Statement on Reactor Safety Study and Review by Lewis Panel") had withdrawn the rationale for refusing to consider
~1/
Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2),
LBP-78-26, 8 NRC 102 as modified at 8 NRC 281 (July 24, 1978).
Environ-mental hearings in this case were heard during several sessions in 1977 and 1978. The Atomic Safety and Licensing Board issued a Partial Initial Decision favorable to the Applicants on July 24, 1978 and on July 26, 1978, limited work authorizations were issued for each unit.
Safety hearings were held during several sessions in 1978 and 1979 and are now complete with the exception of an outstanding motion to reopen the record as to TMI matters.
2/
Citizens Action for Safe Energy, Ilene Younghein and Lawrence Burrell.
80030503s?]
Class 9 events.
For this reason, the Joint Intervenors concluded that the PID under appeal was defective and that the environmental effects of Class 9 accidents should be considered in this case.E In ruling on Joint Intervenors' allegation, the Atomic Safety and Licensing Appeal Board (Appeal Board) in ALAB-573 directed the Staff to advise the Corrission within 30 days of its position on whether the "consecuences of Class 9 accidents should or should not be considered in [the Black Fox]
case" and further invited "the other parties to the proceeding to subrit their own views on the question to the Commission."N Following the submission of the views of the Staff,E/ the Applicants _/ and the 6
State of Oklahoma (State),7_/ the Applicants on February 11, 1980 filed the in-stant " Motion to Dismiss Class 9 Accident Inquiry".
The bases for the Applicants' y
Intervenors' Motion to File a Supplemental Brief dated March 7,1979 and accompanying Supplemental Brief dated March 6,1979.
a/
Public Service Company of Oklahoma, et al., (Black Fox Station, Units 1 and 2), ALAB-573, 10 NPC (Slip Op. dated December 7, 1979 at 32).
"his opinion affirTned the decision of the Licensing Board in all issues with the exception of the radon issue over which jurisdiction was retained.
5/
Staff Statement of Position on Need to Consider Class 9 Events Pursuant to Direction on ALAB-573 dated January 7,1980; 6/
Applicants' (Public Service Company of Oklahoma, Associated Electric Cooperative, Inc., Western Farmers Cooperative, Inc.) Response to Inquiry by Appeal Board Concerning the Need to Consider the Consequences of Class 9 Accidents in this Proceeding dated February 11, 1980.
7/
State of Oklahoma's Response to Staff Statement of Position on Need to Consider Class 9 Events Pursuant to Direction in ALAB-573 and Request for Time to Discover Basis for Facts Asserted by Staff and Opportunity to Reply dated February 7,1980.
In that document, the State of Oklahoma requested leave to respond to the technical basis for the Staff's Janu-ary 7,1930 submission following receipt of discovery on the matter of the technical bases for the Staff pleading.
. Motion to Dismiss are two-fold:
first, that the Appeal Board misinterpreted the Commission 9 Decision in Offshore Power Systems, and second, that the Class 9 issue is not ripe for Commission consideration.
Since they did not seek Appeal Board reconsideration or Commission review of ALAB-573, Applicants invoked the inherent supervisory authority of the Commission-8/
as a jurisdictional basis for their Motion to Dismiss.
For reasons discussed below, the NRC Staff submits that the Applicants' Motion should be denied.
II. Discussion 1.
The Offshore Power Systems Decision In their present motion the Applicants maintain that the Appeal Board misinterpreted the Commission's Offshore Power Systems (OPS) decision.EI They argue that the clear meaning of the Commission's order that the Staff " bring to [its] attention, any individual cases in which it believe[d] the environmental consequences of Class 9 accidents should be considered", means that the Commission should be noti-fied only when the Staff sees a need to consider Class 9 accidents and not when the 8/
Applicants' Motion to Dismiss Class 9 Inquiry at 4 citing Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 516-17 (1977), aff'd sub nom. New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st C1r. 1978), and United States Energy Research and Develoorent Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67, 74-76 (1976).
-9/
Offshore Power Systems (Floatina Nuclear Power Plants), CLI-79-9,
~
10 hRL (September 14, 1979 Slip Op. at 10).
, reverse is true.-10/
Because of this misinterpretation of OPS by the Appeal Board, the Applicants believe that the Class 9 issue should be dismissed by the Conmission and have so moved.
As discussed in the Staff's January 7, 1980 response to the Appeal Board's directive, the Staff likewise does not believe that the Comnission, in its Offshore Power Systems decision, meant for the Staff to inform the Commission of those instances where Class 9 accidents need not be considered, and that therefore the Appeal Board, in its directive to the Staff to inform the Commission of such matters, clearly misread the Commission's Offshore Power Systems decision.
To agree with the thrust of the Applicants' argument is not, however, to concur in its present motion to dismiss.
Here, notwithstanding the Staff's disagreement with the Appeal Board's decision, no appellate review of its decision was sought. Rather, noting that the
" matter involve [d] evolving Commission policy of substantial importance", the Staff fully complied with the Appeal Board's directive and submitted its views to the Commission on whether Class 9 accidents should be considered at Black Fox.
The reasons which compelled the Staff to acquiesce in the Appeal Board's decision likewise require its opposition to the present motion. The proper treatment of Class 9 accidents at lard based reactors is a matter about which the Commission has expressed its concern and involves an area where the Commission Applicants' Motion to Dismiss Class 9 Accident Inquiry at 6.
6 is "re-examine [ing]" its policy.
Offshore Power Systems, supra at 9.
Clearly the submission of this issue to the Commission at this time was appropriate.
Moreover, the Appeal Board actions in bringing the issue to the Commission's attention is also consistent with the Commission's policy as set forth in its Modified Adjudicatory Proceedings Statement.E For in this Statement, the Commission expressly directed the Appeal Board to " inform the Commission if it believe[d] that [a] case raise [d] issues on which prompt Commission guidance, particularly guidance on possible changes to present Commission regulations and policies, would advance the Board's appellate review."
Id.
Thus, where as here, the issue presented involves a matter of substantial importance which will " advance the [ Appeal] Board's appellate review", con-sideration of the issue by the Commission is proper and Applicant's request to preclude such review should be denied.
2.
Ripeness of the Class 9 Issue in Black Fox Applicants' second reason asserted for dismissing the Class 9 inquiry is that since " Class 9 accident matters beyond that addressed in the Final Environmental Statement for the Black Fox Station are still pending with the Licensing Board and have not yet been decided", the matter "was not properly before the Appeal
-11/ Commission Modified Adjudicatory Procedures Statement of November 5, 1979 (44 Fed. Reg. 65049).
, Board... [in ALAB-573 and for this reason] should not be considered by the E/
Commission at this time".
Applicants are correct in their observation that " Class 9 accident matters beyond that addressed in the Final Environmental Statement for Black Fox Station are still pending before the Licensing Board and have not yet been decided".~13/
However, that does not mean the instant matter was not properly before the Appeal Board, and now as a result of its action, before the Commission.
The Atomic Safety and Licensing Board below, relying on what it called a
" credible mechanisms" test in accordance with the Midland decision and its EI, admitted a Class 9 safety contention to the proceeding based on progeny specific accident scenarios presented by Joint Intervenors.1 / At the subsequent hearing on these issues, the Staff presented testimony on the matterE! and the opportunity for discussion and cross examination by 12/ Applicants' Motion to Dismiss at 8.
13/ lbid.
14j Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331 (1973). Wisconsin Electric _ Power Company (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 AEC 491 (1973).
Long Island Lighting Company (Shoreham Nuclear Power Station), ALAB-156, 6 AEC at 381 (1973).
Those cases require a showina of reasonable possibility for the occurrence of a specific Class 9 accident scenario such that consideration would not be precluded by proposed Appendix D.
-15/ Licensing Board's Third Prehearing Conference Order dated March 9,1977 and May 25, 1977, Memorandum and Order.
16/ Thadani Testimony at 65-7 to 65-8 following Tr. 7263.
. Joint Intervenors was afforded.E The Licensing Board has not yet ruled on this contention in a Partial Initial Decision on Radialogical Health and Safety Issues because of the intervening accident at Three Mile Island and the pendency of a motion to reopen the record.E' We do not think, however, that resolution of the matters before the Licensing Board will aid the Commission in considering the instant controversy or is a necessary prerequisite to this undertaking.
The issue before the Licensing Board, in the framework of the safety contentions presented, is whether a given scenario is of sufficient probability so as to require its consideration as a Class 8 event (one which must, as a credible accident, be considered in the evaluation of the facility under 10 C.F.R. Part 100), or whether the probability of the scenario is so incredibly low that it need not be taken account of in the design (Class 9). This determination falls short of the far broader question now before the Comission by virtue of ALAB-573, which is whethe.-
the environmental consequences of events appropriately characterized as Class 9 should be considered in an individual licensing proceeding.
Because of the very real distinction between the issue before the Licensing Board and that which is before the Commission, the Applicants' suggestion that consideration of the matter by the Commission at this time would cons.itute an impreper pre-ention,19/ is misplaced.
While the issue before the Licensing Board is, 17' MiseTTestimony following Tr. 7345; see Tr. 7260-7342.
18/ Atomic Safety and Licensing Board Order dated June 13, 1979. As that Order indicates on page 1, the Joint Intervenors on April 27, 1979, urged a re-opening of the record on financial qualifications, TMI-2, the generic consideration of Class 9 accidents, and re-evaluation of post-accident monitoring plans for BFS.
19
_/ Applicants' Motion to Dismiss at 10.
. admittedly, not ripe for appellate consideration, the distinctly different issue presented by ALAB-573 is.
Consequently, the Staff believes that it would be entirely inappropriate to dismiss the Conmission's Classt 9 inquiry, as Applicants would do, or, for that matter, even to defer it pending issuance of the Licensing Board's decision and completion of the appellate review process.
III.
Conclusion o
For the foregoing reasons, the NRC Staff believes that the issue of the consider-ation of the environmental effects of Class 9 accidents as set out in ALAB-573 should be decided by the Commission and that its decision need not await the Atomic Safety and Licensing Board decision on the Intervenors' safety contentions.
Accordingly, Applicants' Motion to Dismiss Class 9 Accident Inquiry should be denied.
Respectfully submitted, Y
t:0
' Ge c h L. Dow Davis Counsel for NRC Staff Dated at Bethesda, Maryland this 3rd day of March,1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
PUBLIC SERVICE COMPANY OF OKLAHOMA,
)
ASSOCIATED ELECTRIC COOPERATIVE, INC.
)
Docket Nos. STN 50-556 AHD
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STN 50-557 WESTERN FARMERS ELECTRIC COOPERATIVE,
)
INC.
)
)
(Black Fox Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO APPLICANTS' MOTION TO STRIKE RESPONSE OF ATTORNEY GENERAL OF OKLAHOMA" and "NRC STAFF RESPONSE TO APPLICANT'S MOTION TO DISMISS CLASS 9 ACCIDENT INQUIRY
- 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 asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 3rd day of March, 1980:
- John F. Ahearne, Chairman
- Dr. W. Reed Johnson U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Appeal Washington, D. C.
20555 Board U.S. Nuclear Regulatory Commission
- Dr. Victor Gilinsky Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Jerome E. Sharfman, Esq.
Atomic Safety and Licensing Appeal
- Mr. Richard T. Kennedy Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555
- Dr. Joseph M. Hendrie
- Sheldon J. Wolfe, Esq.
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Peter A. Bradford U.S. Nuclear Regulatory Commission
- Mr. Frederick J. Shon Washington, D. C.
20555 Atorc.ic Safety and Licensing Board U.S. Nuclear Regulatory Commission
- Richard S. Salznan, Chairman Washington, D. C.
20555 Atomic Safety and Licensing Appeal Board Dr. Paul W. Purdom U.S. Nuclear Regulatory Commission Director, Environmental Studies Group Washington, D. C.
20555 Drexel University 32nd and Chestnut Street Richard B. Hubbard Philadelphia, Pennsylvania 19104 MHS Technical Associates 1723 Hamilton Avenue Suite K San Jose, California 95125
e.
Joseph Gallo, Esq.
Mr. Vaughn L. Conrad Isham, Lincoln & Beale Public Service Company of Oklahoma 1050 17th Street, N.W.
P. O. Box 201 Washington, D. C.
20036 Tulsa, Oklahoma 74102 Michael I. Miller, Esq.
Joseph R. Farris, Esq.
Isham, Lincoln & Beale John R. Woodard III, Esq.
One 1st National Plaza Feldman, Hall, Franden, Reed Suite 2400 and Woodard Chicago, Illinois 60606 816 Enterprise Building Tulsa, Oklahoma 74103 Mrs. Carrie Dickerson Citizens Action for Safe Engery, Inc.
Alan P. Bielawski P.O. Box 924 Isham, Lincoln & Beale Claremore, Oklahoma 74107 One First National Plaza Suite 4200 Jan Eric Cartwright, Esq. &
Chicago, Illinois 60603 Charles S. Rogers Attorney General Mr. Gerald F. Diddle State of Oklahoma General Manager 112 State Capitol Building Associated Electric Cooperative, Inc.
Oklahoma City, Oklahoma 73105 P. O. Box 754 Springfield, Missouri 65801 Mr. Clyde Wisner NRC Region 4 Mr. Maynard Human Public Affairs Officer General Manager 611 Ryan Plaza Drive Western Farmers Coop., Inc.
Suite 1000 P.O. Box 429 Arlington, Texas 76011 Anadarko, Oklahoma 73005 Andrew T. Dalton, Jr., Esq.
- Atomic Safety and Licensing Appeal Board Attorney at Law U.S. Nuclear Regulatory Commission 1437 South Main Street, Rm. 302 Washington, D. C.
20555 Tulsa, Oklahoma 74119
- Atomic Safety and Licensing Board Panel Mrs. Ilene H. Younghein U.S. Nuclear Regulatory Commission 3900 Cashion Place Washington, D. C.
20555 Oklahoma City, Oklahoma 73112
- Docketing and Service Section Martha E. Gibbs, Esq.
Office of the Secretary Isham, Lincoln & Beale U.S. Nuclear Regulatory Ccmmission One First National Plaza Washington, D. C.
20555 Suite 4200 Chicago, Illinois 60603 Dr. M. J. Robinson Black & Veatch Lawrence Burrell P. O. Box 8405 Route 1, Box 197 Kansas City, Missouri 64114 Fairview, Oklahoma 73737 Mr. T. N. Ewing
('JGa3
\\ (cirt, N
Acting Director 3
Black Fox Station Nuclear Project Public Service Company of Oklahoma L.'Dow Davis P.O. Box 201 Counsel for NRC Staff Tulsa, Oklahoma 74102