ML20138G382

Order Denying Utils 851029 Request for NRC to Reconsider 850918 Denial of Fee Exemption Request.Situation Does Not Merit Special Treatment.Final Action Will Be Taken After Fee Correctness Matters Resolved.Served on 851212

ML20138G382
Person / Time
Site:	Black Fox
Issue date:	12/12/1985
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	PUBLIC SERVICE CO. OF OKLAHOMA, WESTERN FARMERS ELECTRIC COOPERATIVE
References
CON-#485-489 NUDOCS 8512160311
Download: ML20138G382 (4)

Text

F UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Y:

.m COMMISSIONERS: ~65 og n Nunzio J. Palladino, Chairman ,.

Thomas M. Roberts 535 , ' , ,

• James K. Asselstine .

Frederick M. Bernthal "/ ^ E'". e Lando W. Zech, Jr.

) SMED DEC131985 In the Matter of )

) Docket Nos.

-PUBLIC SERVICE COMPANY OF OKLAHOMA, ) STN 50-556 ASSOCIATED ELECTRIC COOPERATIVE, INC. ) STN 50-557 and ) (Special WESTERN FARMERS ELECTRIC COOPERATIVE ) Proceeding)

(Black Fox Station, Units 1 and 2 ORDER On October 29, 1985, Public Service Company of Oklahoma,

-Associated Electric Cooperative, Inc., and Western Farmers Electric Cooperative-(" petitioners") petitioned the Commission to reconsider an NRC staff decision which had denied their request that the NRC exempt them from paying license fees relating to the Black Fox Station.

Petitioners also requested the opportunity to conduct an " audit inspection" of the NRC records which establish how the licensee fee was derived. Finally, petitioners asked that the NRC not take " final ~

action" on issues raised in its petition until the audit inspection had been conducted and any refund request has been acted upon.

While the Commission's regulations provide for exemptions in limited circumstances, 10 C.F.R. 6 170.11(b)(1), the Commission 8512160311 851212 PDR ADOCK 05000556 C PDR k

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believes the circumstances under which an exemption can be justified are quit'e narrow.

The Commission has reviewed petitioners' request and determined that an exemption from licensee fees is unwarranted. As the NRC staff explained in its ?eptember 18, 1985 denial of the fee exemption request, the Black Fox Station situation is not a unique one meriting special treatment. The co-owners of the station chose to apply for a construction permit. The decision and timing of their withdrawal of the construction permit application was a decision made by the petitioners' management and was not mandated by the NRC. Petitioners were free to withdraw their application at a date of their own choosing and, had they done so' before November 6,1981, would not have been charged the withdrawn application fee as a consequence of New England Power Company v. Nuclear Regulatory Commission, 683 F.2d 12 (1st Cir. 1982). After concluding that new safety requirements imposed by the NRC after the TMI-2 accident made the proposed Black Fox Station economically unfeasible, petitioners withdrew their-application at a later date, a decision which as it turned out made the petitioners liable for the fee. It had been clear from the time the 1981 interpretative rule was proposed (November 10, 1980, 45 Fed.

Reg. 74493) if not earlier, that the Commission believed itself entitled and obliged to collect fees for withdrawn applications to compensate the government for work expended on the applicant's behalf.

We perceive no unfairness under the circumstances in imposing this fee i

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as pennitted by law. Petitioners claim is, in effect, that NRC regula' tory changes instituted after the TMI-2 accident made the Black Fox Station too costly to construct. ~ Such a claim certainly does not form a basis for granting a fee exemption.

With respect to the claim that a penalty should not be assessed for late payment, both statute, 31 U.S.C. 6 3717, and the government-wide implementing regulations, 4 C.F.R. 102.13, require assessment of a penalty fee for late payment of debts owed to the Government. It is unfortunate that petitioners are subject to the penalty, but this expense could have been avoided if they had acted in a timely fashion.

With respect to petitioners' request that they be afforded an opportunity to audit pertinent records to determine whether the license fee charged is erroneous, in early October-1985 petitioners' counsel was advised that pertinent records were available for

'i nspection at NRC headquarters. . Recently, the NRC staff mailed to petitioners the pertinent material. If after reviewing that material, petitioners believe that additional information is necessary, their information needs are to be communicated to William 0. Miller, Chief of NRC's Licensing Fee Management Branch.

'If after evaluating the pertinent information petitioners determine that the NRC erroneously calculated the fee, they are to so advise Mr.' Miller. If the NRC staff determines that the fee charged was indeed erroneous, a refund will be promptly provided.

~

t k-i 4-This order constitutes' final agency action on the fee exemption request. The NRC will not take " final action" on the amount of the license fee until all matters regarding the correctness of the fee w

assessed have been resolved.

,oJ } " " G W4 , F r the Commission j',

N, v/?g heat  ; (

.. O. SAMUEL J.}ttr.K Secretary of th% Commission

4 , . .;_ ., g,,, 8'

- Dated at Washington, D.C.

-t 11 this / L day of December,1985.

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