ML19296D222
| ML19296D222 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 02/26/1980 |
| From: | Davis L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8003030028 | |
| Download: ML19296D222 (10) | |
Text
,
s G
-no UNITED STATES OF AMERICA
/'TCg9 NUCLEAR REGULATORY COMMISSION gg'r ;
BEFORE THE COMilISSION C
T t#
[a-d In the Matter of
)
PUBLIC SERVICE COMPANY OF OKLAHOMA, ASSOCIATED ELECTRIC COOPERATIVE, INC.
Docket Nos. STN-50-556 AND
)
STN-50-557 WESTERN FARMERS ELECTRIC COOPERATIVE,
)
INC.
)
(Black Fox Station, Units 1 and 2)
)
NRC STAFF RESPONSE TO STATE OF OKLAHOMA'S REQUEST FOR TIME TO DISCOVER:AND 0THER RELIEF STATEMENT On September 14, 1979, the Conmission entered its decision in Offshore Power Systems 1/ concluding, inter alia, that because of the " unique siting" (Slip Op. at 9, n.11) of the floating nuclear plants there involved, the considera-tion of the environmental consequences of a Class 9 accident was appropriate.
The Commission further requested in its decision that the NRC Staff:
In the interim, pending completion of the rulemaking on this subject (Class 9 accidents) bring to [its] atten-tion, any individual cases in which it belie /e[d] the environmental consequences of Class 9 accidents should be considered. Slip Op. at 10.
Thereafter, on December 7,1979, the Appeal Board issued a decision in the present proceeding affinning the action of the Licensing Board in authorizing 1/ Offshore Power Systems (Floating Nuclear Power Plants), CLI-79-9,10 NRC
___ (September 14,1979).
80030300 4
the issuance of a Limited Work Authorization for each of the Black Fox units. /
2 In its debision, the Appeal Board, in an apparent reliance. upon the Comission's request to the Staff in Offshore Power Systems, directed the Staff to advise the Comission of the reasons why it believed the consequences of Class 9 accidents should or should not be considered in the Black Fox case. Slip Op. at 32.
The Appeal Board also stated that other parties could submit their own views en the question to the Comission.
Ibid.
Pursuant to this directive, the NRC Staff advised the Comission on January 7, 1980, that it had reviewed the design of the propesed Black Fox Station, the additional requirements that are expected to be imposed on Black Fox as a result of the Three Mile Island evaluation, the population characteristics of the site, and the site characteristics limiting the potential groundwater con-tamination, and had concluded that the Black Fox facilities presented no special circumstances under current Commission policy which would warrant consideration of the environmental consequences of Class 9 accidents in the ongoing proceeding. 4 /
1./ Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2),
ALAB-573,10 N8C
,(December 7,1979).
3/
Joint Intervenors raised for the first time during the course of the environmental and site suitability appeal an allegation that the Nuclear Regulatory Comission's (Comission's) recently issued policy statement
("... Policy Statement on Reactor Safety Study and Review by Lewis Panel")
had withdrawn the rationale for refusing to consider Class 9 events, and thus the Licensing Board's decision,which failed to consider such events, was defective. Supplemental Motion and Brief of Intervenors (March 6,1979).
b Staff Statement of Position on Need to Consider Class 9 Events Pursuant to Direction in ALAB-573 dated January 7,1980 at 5.
S
-e
=
In response to the Staff's pleading, the State of Oklahoma (State) has now submitted its views to the Commission on the matter of C4ss 9 accidents.
Observing that the Comission had stated in its Offshore Power decision that it intended to re-examine its policy on Class 9 accidents and to complete the rulenaking begun on this subject, the State of Oklahoma argues in its reply that the Black Fox facilities should not be " grandfathered" under existing Commission policy, but rather, that any decision by the Comission on the con-sideration of Class 9 accidents at Black Fox should await the conclusion of the pending rulemaking. M.Lt3-5. Specifically, tne State urges that the Commission " require the Licensing Board to build a record in the instant docket relevant to the environmental consequences of Class 9 accidents [but] reserve judaement thereon until after the Commission decides in the generic rulemaking whether the old [ Class 9] policy should survive." M.at7-8. Additionally, the State of Oklahoma asked that it be given time to " discover"N the factual ard documentary basis for matters stated in the affidavits attached to the Staff's " Statement of Position" and have the " opportunity of replying to the facts raised, as analyzed and supported by the technical opinion of its experts."
State response at 8-9.
5
- __/ State of Oklahoma's Response to Staff St6tement 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 at 6-9.
-_/ In a letter dated January 24, 1980, the State of Oklahoma submitted to 6
the Staff a three page request for documents dealing with the Class 9 accident treatment for Black Fox Station. That document is Attachment B to the State's February 7, 1980 submission.
The Staff understands that the State of Oklanoma has engaged the services of HHB Associates, Inc., to assist it in this regard.
For the reasons discussed below, the Staff believes that the State's request for a hearing on the environmental effects of Class 9 accidents at the Black Fox facility is not proper under current Commission practice and should be denied. The Staff does not oppose the State's request for additional time to respond to the Staff's Statement of Position.
DISCUSSI0' I.
1.
In 1971 the Commission set forth as interim guidance certain standard assumptions regarding nuclear power plant accidents for use in preparing environ-mental impact statements.- I This guidance was contained in an Annex S o be t
I added to the Comission's regulationsS implementing the National Environmental Policy Act (NEPA), 42 U.S.C. 54321 (1976).
Ibid. One of the types of accidents considered in the Annex was Class 9 accidents "these accidents involved sequences of postulated successive failure more severe than those postulated for the design basis of protective systems and engineered safety features."11/
In its consideration of Class 9 accidents, "[t]he Annex concluded that although the consequences of Class 9 accidents might be severe, the likelihood that of such an accident was so small that nuclear power plants need not be designed to mitigate their consequences, and, as a result, discussion of such accidents in Applicants' Environmental Reports or in staff's environmental impact state-ments was not required."
Ibid.
0/ See Offshore Power Systems (Floating Nuclear Plants), ALAB-489, 8 NRC T9T(1978).
b/ 39 Fed. RS. 22851-52 (December 1,1971).
N Then found in Appendix D to 10 CFR Part 50 (1970 Revision).
E Offshore Power Systems (Floating Nuclear Power Plants),r.CLI-79-9, supra, Slip Op. at 3.
In applying this interim guidance to Commission licensing proceedings, the Cormission's adjudicatory boardsb and the courts in their review of such decisionsb have traditionally not required the consideration of Class 9 accidents - absent a showing of "special circumstances" rendering such an occurrence more likely at a specific facility than at nuclear power plants in general. See Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
ALAB-355, 4 NRC 397, 415 (1976).
2.
In the present proceeding the Staff has reviewed the proposed design of the Black Fox facility, the population characteristics of the site and the site characteristics limiting potential grour.dwater contamination, and has concluded that the Black Fox plants present no special circumstances which would warrant consideration of the environmental consequences of Class 9 accidents.b Yet notwithstanding this detennination, the State of Oklahoma
- without a showing of special circumstances - nonetheless urges that the Commission require the Licensing Board to reopen the record in this proceeding f
-12/
See e.a.
Commonwealth Edison Company (Zion Station, Units 1 and 2),
AIL 7B-T K,,8 AEC 381 (1974); Long Island Lighting Company (Shoreham Station), ALAB-156, 6 AEC 831 (1973); Wisconsir. Electric Power Company,
(Point Beach, Unit 2), ALAB-137, 6 AEC 491 (1973).
b See e.o., Porter County Chapter of the Izaak Walton' League v. AEC, 533 T.7d TUTl (7th Cir.1976); Carolina Environmental Study Group y, United States, 510 F.2d 796 (D.C. Cir 1976),
Staff Statement of Position, supra at 5
~.
. to censider the environmental consequences of Class 9 accidents, and reserve judgement on that issue until after the Conmission concludes its rulemaking on this subject.
It is clear, we believe, that where there exists express Commission guidance on a subject, such should be followed and adhered to until such time as it is changed or modified.E And it is of no support to those who would argue other-wise that a change in the directive may be iminent.E While it is true, as the State observes, that the Comission has expressed a desire to re-examine its policy on Class 9 accidents and an intent to complete its rulemaking in this area (Offshore Power Systems, supra at 9), such does not form a basis for reopening the present record or holding the proceeding in abeyance pending the conclusion of such rulemaking. Here, there exists explicit Comission guidance on the proper treatment of Class 9 accidents in licensing proceedings, and absent a change by the Comission in such guidance, existing policy directives in this area should be followed and comp'ied with. Accordingly, absent a showing of special circumstances - not present here - demonstrating the likelihood of the occurrence of a Class 9 accident at Black Fox greater than E ee Consumer Power Company (Midland, Units 1 and 2), ALAB-123, 6 AEC S
73T, 347 (1973).
E Potomac Electric Power Company (Douglas Point Nuclear Generating St tion, Units 1 and 2), ALAB-218, 8 AEC 79, 88, n. 3 (1974).
. that of land-based reactors generally, the relief sought by the State is improper, as a matter of law, and should not be granted.I7,,/ Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397 (1976).I8/
II.
Insofar as the State requests that it be given leave to respond to $
technical bases for the Staff's January 7,1980 submission following receipt of the material requested thrcugh discovery, we interpose no objection to this request.
CONCLUSION e
For the foregoing reasons, the Staff submits that the request of the State of Oklahoma that:
(i) the record in this proceeding be reopened to consider the environmental consequences of Class 9 accidents, and (ii) the Licensing Board's judgement on this issue be reserved until after the Conmission completes its rulemaking on this subject, should be denied. ' The Staff interposes no objection 3 Moreover, it "is well settled [that] the proponent of a motion to reopen the record has a heavy burden," (Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No.1), ALAB-462, 7 NRC 320, 338 (1978))
and must be prepared to establish that a different result would have been reach initially, had the information he is now presenting been con-sidered.
Ibid. 'See also Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), ALAB-227, 8 AEC 416, 418 (1974).
In the present proceeding the State has, as discussed above, made no showing of special circumstances or new information, and thus its request for a further hearing on the consequences of a Class 9 accident cannot prevail, ly See also Pennsylvania Power and Light Company (Susquehanna Units 1 and 2),
LBP-79-Y9 10 NRC (October 19,1979).
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8-to the State's request for additional time to respond to the Staff's Statement of Position following receipt of its requested discovery.
Respectfully submitted,
)[i
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. Dow Davis Counsel for NRC Staff Dated at Bethesda, Maryland this 26th day of February, 1980 b
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1 UNITED STATES OF AMERICA i
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 STN 50-557 WESTERN FARMERS ELECTRIC COOPERATIVE, INC.
(BlackFoxStation, Units 1and2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO STATE OF OKLAH0 MAS REQUEST FOR TIME TO DISCOVER AND OTHER RELIEF", dated February 26, 1980 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 Comission's internal mail system, this 26th day of February, 1980:
- John F. Ahearne, Chairman
- Dr. W. Reed Johnson U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Appeal Washington, D. C.
20555 Board U.S. Nuclear Regulatory Comission Dr. Victor Gilinsky Washington, D. C.
20555 U.S. Nuclear Regulatory Comission Washington, D. C.
20555
- Jerome E. Sharfman, Esq.
Atomic Safety and Licensing Appeal
- Mr. Richard T. Kennedy Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, D. C.
20555 Washington, D. C.
20555
- Dr. Joseph M. Hendrie
- Sheldon J. Wolfe, Esq.
U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Board Washington, D. C.
20555 U.S. Nuclear Regulatory Comission Washington, D. C.
20555
- Peter A. Bradford U.S. Nuclear Regulatory Comission
- Mr. Frederick J. Shon Washington, D. C.
20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission
- Richard S. Salzman, Chairman Washington, D. C.
20555 Atomic Safety and Licensing Appeal Board Dr. Paul W. Purdom U.S. Nuclear Regulatory Comission Director Environmental Studies Group Washington, D. C.
20555 Drexel University 32nd and Chestnut Street Philadelphia, Pennsylvania 19104
I '
Joseph Gallo, Esq.
Mr. Vaughn L. L:nrad Isham, Lincoln & Beale Public Service Company of Oklahoma 1050 17th. Street, N.W.
P. O. Box 201 Washington, D. C.
20036 Tulsa, Oklahoma 74102 i
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 r
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 Comission 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 Comission 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 Commission 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 Acting Director Black Fox Station Nuclear Projcat Public Service Company of Oklahoma L. 10w Davis P.O. Box 201 Counsel for NRC Staff Tulsa, Oklahoma 74102
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