ML19296C028
| ML19296C028 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 02/11/1980 |
| From: | Gallo J, Gibbs M ISHAM, LINCOLN & BEALE, PUBLIC SERVICE CO. OF OKLAHOMA |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML19296C015 | List: |
| References | |
| RTR-WASH-1400 ALAB-573, NUDOCS 8002250078 | |
| Download: ML19296C028 (11) | |
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2/11/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of the Application of
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Public Service Company of Oklahoma,
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Associated Electric Cooperative, Inc.) Docket Nos. STN 50-556 and
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STN 50-557 Western Farmers Electric Cooperative )
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(Black Fox Station, Units 1 and 2)
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MOTION TO DISMISS CLASS 9 ACCIDENT INQUIRY Public Service Company of Oklahoma, Associated Electric Cooperative Inc., and Western Farmers Electric Cooperative
(" Applicants"), by their attorneys, move the Nuclear Regulatory Commission (the "NRC" or the " Commission")
to dismiss the Class 9 accident inquiry in this proceeding.
Applicants' Motion is founded on two separate bases.
- First, as explaited below, the inquiry was improperly set in motion by the Atomic Safety and Licensing Appeal Board (the " Appeal Board") in ALAB-573.1/
Second, the question of Class 9 accidents is not ripe for consideration by the Commission at this time.
1/
Public Service Company of Oklahoma, (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC (December 7, 1979).
8002250 QQW
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+ I.
Introduction This matter arises out of an application for construction permits to build the Black Fox Station.
The Station will consist of two boiling water reactors to be located 23 miles east of central Tulsa, Oklahoma.
It is sufficient for purposes of the instant inquiry to begin the background discussion by noting that en"ironmental and site suitability hearings in this pro-ceeding were conducted during 1977 and mid 1978.2/
The par-ties are Applicants, the NRC Staff and Citizens' Action for Safe Energy, Lawrence Burrell and Ilene Younghein
(" Inter-venors").
After the close of the record and filing by the parties of findings of fact and conclusions of law, the Atomic Safety and Licensing Board
(" Licensing Board") issued a partial initial decision favorable to Applicat.ts on July 24, 1978.3/
Intervenors filed an appeal from the decision and, among other things, challenged the Licensing Board's 4/
ruling with respect to Class 9 accidents.-
2/
For a full discussion of the procedural history of this procaeding, see Applicants' " Motion For Commission Action," dated September 5, 1979.
3/
LPB-70-26, 8 NRC 102 (1978).
~4/
Applica4'ts also appealed from the Licensing Board's deci-sion, however, that appeal is not pertinent to the present inquiry.
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. On December 7, 1979, the Appeal Board rendered ALAB-573 affirming the Licensing Board's partial initial decision (with the exception of the radon issue over which the Appeal Board retained jurisdiction).
With respect to the Class 9 accident issue, the Appeal Board concluded, inter alia, that the NRC Staf f was required to advise the Commission of the reasons why the consequences of Class 9 accidents should or should not be considered in the Black Fox proceeding.
This determination was based upon the Appeal Board's interpretation of the Commission's latest guidance concerning Class 9 accidents in the Offshore Power Systems case.5!
The Appeal Board directed the NRC Staff to provide its advice within 30 days.
Other parties to the proceeding were given the opportunity to respond 30 days thereafter.
On January 7, 1980, the Staff filed its " Statement of Position on Need to Consider Class 9 Events Pursuant to Direction in ALAB-573" with the Commission.
In that pleading, the NRC Staf f took the position that no special consideration needed to be given to the consequences of Class 9 accidents in this proceeding.
On January 18, 1980, Intervenors filed their response to the NRC Staff statement.
Intervenors urged that the Staff's position be rejected and that the 5/
Offshore Power Systems (Floating Nuclear Power Plants),
CLI-79-9, 10 NRC (September 14, 1979).
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environmental consequences of a Class 9 accident be con-sidered.
The Attorney General of the State of-Oklahoma filed a response on February 6, 1980.6/
II.
Applicants' Motion Is Properly Submitted Applicants' instant motion to dismiss this inquiry is procedurally correct.
First, because the propriety of the Appeal Board's directive in ALAB-57' turns, in the first instance, solely apon the interpretation to be given the Commission's words in Offshore Power Systems, Applicants did not ask the Appeal Board to reconsider its decision.
- Second, because the effect of the Appeal Board's decision was to lay this matter at the Commission's doorstep, an appeal to the Commission pursuant to 10 C.F.R.
S 2.786(b) or a request for certification to the Commission pursuant to section 2.785(d) 11d have been pointless.
Since the Commission without ques-tion has the power to act upon Applicants' motion,1/ the pro-cedural avenue chosen by Applicants is calculated to resolve the matter in the most expeditious manner possible.
6/
See Applicants' " Motion to Strike Response of the Attorney General to ALAB-573," filed on February 11, 1980.
7/
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 Cir. 1978), and United States Energy Research and Development Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67, 74-76 (1976).
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6 III. The Appeal Board Misinterpreted The Commission's Offshore Power Systems Decision The Appeal Board directed the NRC Staff to " advise the Commission promptly... of the reasons why it believes the consequences of Class 9 accidents shou.'
r should not be considered in this case," (Slip op, at 32) (emphasis and footnote omitted).
According to the Appeal Board, the mandate for this directive is found in the Commission's decision in Offshore Power Systems, CLI-79-9, supra.
An examination of that decision, however, reveals no basis for the Appeal Board's instruction.
The Of fshore Power Systems matter came to the Commission when the Appeal Board certified the question of whether Class 9 accidents should be considered in the en-vironmental analysis of floating nuclear power plants.
The Commission answered that question in the affirmative and then went on to express its concern about the consideration of Class 9 accidents as an environmental issue at land-based reactors.
The Commission announced its intention to complete the rulemaking begun in 1971 with the publication of the proposed Annex to 10 C.F.R. Part 50, Appendix D, and to re-examine NRC policy in this area.
Tc aid in that re-examination, the Commission asked the NRC Staff to supply recommendations
. concerning how the interim guidance of the Annex might be modified to reflect subsequent developments, and:
In the interim, pending completion of the rulemaking on this subject, bring to our attention, any individual cases in which it believes the environmental consequences of Class 9 accidents should be considered.
Slip op. at 10.
The clear meaning of these words is that the NRC Staff should inform the Commission of any instance in which the Staff believes that the environmental consequences of Class 9 accidents should be considered in a particular licensing proceeding.
Certainly, the Commis? ion is inter-ested in determining policy in cases where the NRC Staff believes that Class 9 accidents should be considered; the reverse, however, is not true.
Any proc edure which requires the NRC Staff to prepare, and the Commission to review, reports concerning applications for construction pert.ts or operating licenses for which there is no need to consider Class 9 accidents is required by neither the Offshore Power Systems case nor common.nense.
That procedure would be productive of l'ttle more than consuming the limited time i
and manpower resources of both the NRC Staf f and the Com-mission.
Such a result is especially harmful at the present ti.a e, when, as a result of the accident at Three Mile Island
. and the subsequent investigations and recommendations, the demands upon the Commission to deal with the Draft Task Action Plan and to end the continuing licensing pause in a timely manner are already overwhelming.
That this inquiry is a useless exercise is also demonstrated by a casual review of Intervenors' Response to the Class 9 inquiry.
Intervenors do not attempt to estab-lish or identify any special circumstances or any other bases peculiar to Black Fox that would arguably support the further consideration of Class 9 accidents in this proceed-ing.
Instead, Intervenors desire to burden the Black Fox proceeding with a generic inquiry into that subject.
Since it is readily apparent that no valid reason exists to warrant the further consideration of Class 9 accidents in Black Fox, the inquiry should be summarily dismissed.
IV.
The Issue Of Class 9 Accidents Is Not Ripe For Consideration By The Commission The Appeal Board stated in its Decision (Slip op.
at 31) that "The Board below acted in accordance with exist-ing Commission policy in not considering Class 9 accidents at that time [the environmental phase of the proceeding]."
This conclusion is erroneous.
Class 9 accident mutters beyond that addressed in the Final Environment Statement for the Black Fox Station are still pending with the Licensing
s Board and have not yet been decided.
Because the issue is still before the Licensing Board and was not properly before the Appeal Board,8/ that question should not be considered by the Commission at this time.
Prior to his consolidation with Intervenors, Mr.
Burrell sought to raise the issue of Class 9 accidents in his petitions to interv<.ne.
The Licensing Board, over the objections of Applicants and the NRC Staff, determined that the admissibility of a Class 9 contention could not be decided until Mr. Burrell was given an opportunity to submit various Class 9 accident scenarios which were of sufficient credibility to warrant acceptance of the issue for an evi-dentiary inquiry.
In conducting this exercise,'the Licensing Board recognized that it is appropriate to accept a Class 9 contention upon a showing of special circumstances which render a particular Class 9 accident scenario more likely to occur at the land-based nuclear plant in question than at land-based plants generally.
Thus, the opportunity to demonstrate special circumstances was provided.
(The Licens-ing Board's Order of March 9, 1977 is attached as " Exhibit B".)
8/
Although Applicants did not pursue this point before the Appeal Board, it was forcefully argued by the NRC Staff.
(See "NRC Staf f Response To Intervenors ' Motion To File Supplemental Brief," dated March 23, 1979, which is attached as " Exhibit A".)
. Mr. Burrell, who by this time had joined with Citizens' Action for Safe Energy and Ilene Younghein as "Intervenors," submitted 27 accident scenarios or mechanisms which they deemed to be sufficiently credible for considera-tion even though they were characterized as falling in the Class 9 accident category.
(Intervenors' submissions are attached as Exhibits "C" and "D".)
All but six of the proposed scenarios were rejected by the Licensing Board as not being credible.
Five of the scenarios accepted by the Licensing Board described various transients without scram which it apparently concluded were credible because of the continuing controversy between the NRC Staff and the nuclear industry over the need to include Anticipated Transients Without Scram (ATWS) within the design basis for light water reactors.
The other mechanism deemed credible concerned the issue of sabotage.
Because an ATWS contention and a conten-tion dealing with sabotage had already been admitted in the Black Fox proceeding, the Licensing Board concluded that
- hey were sufficiently broad to embrace the six Class 9 accident scenarios, and therefore it was not necessary to establish a separate Class 9 contention.
(The Licensing Board's Order of May 25, 1977 is attached as " Exhibit E".)
Because the ATWS and sabotage contentions are safety issues, these matters and the related Class 9 sce-narios were litigated i: the radiological health and safety
. portion of this case.
The sabotage contention was dismissed in substantial part through summary disposition.
Testimony submitted by the NRC Staff on the ATWS issue covered the five ATWS-related scenarios, and Intervenors' ATWS testimony by Gregory C.
Minor also touched on Class 9 issues.
- Thus, all parties had the opportunity to litigate these matters fully.
This issue, along with the rest of the safety por-tion of this case, is currently pending before the Licensing Board.
The Licensing Board's decision, of course, is being held in abeyance pending the resumption of licensing by the Commission.
In these circumstances, it would be improper for the Commission at this late stage to pre-empt the Licensing Board on this matter.
This is especially true when, as in the instant case, the Licensing Board took the extraordinary step of conducting a survey for special circumstances which was almost prescient of the Commission's action in the Offshore Power Systems case.
The Commission should permit the orderly course of the licensing process to continue, recognizing that it will have the last word on this matter once the Licensing Board and the Appeal Board have completed their work.
See statement of the Commission entitled " Modi-fied Adjudicatory Procedures," 44 Fed. Reg. 65049 (1979).
. Conclusion For the foregoing reasons, the Class 9 accident inquiry in the Black Fox docket should be dismissed.
Respectfully submitted,
_w-3 g
[oseph~Gallo d([otina E G bb(
t
~ Martha E.
Gi h Two of the Attorneys for the Applicants Isham, Lincoln & Beale 1050 17th Street, N.W.
Suite 701 Washington, D.C.
20036 (202) 833-9730 Isham, Lincoln & Beale One First National Plaza Suite 4200 Chicago, Illinois 60603 (312) 558-7500 Dated:
February 11, 1980
EXHIBIT A
.e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY add LICENSING APPEAL BOARD In the Matter of
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PUBLIC SERVICE COMPANY OF OXLAHOMA,
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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,
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INC.
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(Black Fox Station, Units 1 and 2)
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NRC STAFF RESPONSE TO INTERVENORS' MOTION TO FILE SUPPLEMENTAL BRIEF On Marc.
4, 1979, Intervenors requested leave to file a supplemental d/ n the instant environ-brief relating to their Exceptions 112 and 113 i
mental appeal.
Intervenors alleged, inter alit, that the ALAB (sic) had refused to consider Task Action Plan 33 (TAP-33) and certain unspecified Class 9 issues in the proceeding below.
Intervenors state,without citation to the record,that the " apparent reason" for rejecting certain of Intervenors' Class 9 contentions was that the Licensing Board thought that the BFS FES, through reference to WASH-1400, had provided the environmental or safety analyses needed for l/
Intervenors' Exception 112 reads:
and h
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DUPLICATE DOCUMENT Entire document previously C[C / h }
entered nto system unde ANO
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No. of pages:
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