ML20148G383

Applicant Psok'S Opposition to Intervenor Citizens Action for Safe Energy'S Motion for Order Staying LWA Pending Appeal.Asserts That Motion Is Untimely & That Criteria of 10CFR2.788(e) Have Not Been Met.Cert of Svc Encl

ML20148G383
Person / Time
Site:	Black Fox
Issue date:	10/27/1978
From:	Murphy P ISHAM, LINCOLN & BEALE
To:
References
NUDOCS 7811130060
Download: ML20148G383 (12)

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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL B _D f r

In the Matter of the Application of )

Public Service Company of Oklahoma,

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Associated Electric Cooperative, Inc. ) Docket Nos.

and ) STN 50-556 Western Farmers Electric Cooperative ) STN 50-557

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(Black Fox Units 1 and 2) )

APPLICANTS' OPPOSITION TO "INTERVENORS' ,

MOTION FOR ORDER STAYING LWA PENDING APPEAL" Introduction On July 24, 1978, the Licensing Board assigned to the above cause issued a " Partial Initial Decision Authoriz-ing Limited Work Authorization" ("PID") wherein all the findings required by 10 CFR 550.10 (e) (2) to be made prior to the issuance of a limited work authorization ("LWA") were made. On July 26, 1978, the Director of Nuclear Reactor Regulation issued an LWA for the B]ack Fox Station. On October 12, 1978, 80 days after the issuance of the PID and 78 days after the issuance of the LWA, Intervenors filed a motion for a stay of the LWA. The requested relief had not first been requested from the Licensing Board, and Inter-venors have not attempted to comply with the requirements of 10 CFR S2.788. Public Service Company of Oklahoma, Asso-ciated Electric Cooperative, Inc. and Western Farmers Elec-tric Cooperative (" Applicants " ) urge that Intervenors' Motion be summarily denied with prejudice because:

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a) Intervenors' Motion is extremely untimely, and no good cause for late filing has been shown; b) Intervenors have not addressed the four criteria set forth in 10 CFR S2.*188(e) which this Board must evaluate to determine whether a stay is appropriate; and c) the criteria set forth in 10 CFR S2.788 (e) mili-cate against granting of a stay.

Argument A. Timeliness The Commission's Rules of Practice provide that within 10 days after service (plus five days where service ir by mail) of a decision, a party may move for a stay of the effectivensss of that decision (10 CFR S2.738(a)). The Commission's Rules also provide that "for good cause" time limits may be extended or shortened (10 CFR 52.711(a)).

Intervenors' request for a stay came 80 days after the issuance of the PID and is, therefore, untimely by 65 days.

.Intervenors have made no showing that there is good cause

'for such an inordinately late filing. Pursuant to this Board's decision in Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-412, 5 NRC 1415, 1417 (Joue 15, 1977), an untimely request for a stay, unsupported by good cause, warrants summary dismissal with prejudice.

B. Compliance With 10'CFR S2.788 and Appeal Board Decisions

1. This Board has repeatedly urged parties to move first for a stay of the effectiveness of a decision

e-before-theBoard:which).madetheidecisio'n.  :(See . cases cited at ? footnote 2 in Florida Power & Light Co. '(St. Lucie Nuclear Power Plant, Unit No; 2)., ALAB-404, 5 NRC 1185, 1186 (1977)).-

Although Intervenors' state on page 2 of their Motion thatL this was.done,' theyfare simply wrong. Int.ervenors provide

- no-citation in' support;of'their assertion, and, based on its-

- review of the pleadings filed'in'this case, Applicants can j find none..

2. Intervenors have' failed to address the four-

. factors which, pursuant.to 10.CFR S2.788 and existing prece 1 dent prior to the adoption of.52.788, the Board must consider prior,to ruling on a motion'for a stay. Intervenors'

. failure in this regard is itself1 sufficient to warrant sum--

r%< y dismissal of their Motion. Kansas Gas and Electric Co.

(Wolf Creek' Generating Station, Unit No. 1), ALAB-412, 5 NRC-1415 (1977).

3. The four . factors set forth in 10. CFR 52.788 (e) g militate against the requested ~ stay. However, because l

-Intervenors have failed-to meet their burden of attempting to show that a stay is justified,~ Applicants will address i

t thess factors'only summarily.-

a) Likelihood of Success.on the: Merits Intervenors will not prevail on.the merits of theirEappeal. Intervenors. appear at first; blush to address

- the; first factor 'under 10' CFR S2.788 (e) , but, in - f act,. con- -

' fine their~discussionito' matters 1 totally unrelated to the Tissue beforeithriLicending' Board and the issue before this e

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Board. The issue before the Licensing Board, which Inter-venors claim was decided erroneously, was whether, for pur-poses of the application before it, the certification re-quirements of Section 401(a) (1) of the Federal Water Pollu-tion Control Act ( " FWP CA" ) (33 U.S.C. S1341 (a) (1) ) had been waiv..J. Intervenors argue that the Licensing Board lacked jurisdiction to find that a waiver had occurred and, moreover, that the facts did not justify the finding of a waiver. As is shown below, Intervenors are wrong on both issues.

(1) Jurisdiction Intervenors argue, at that portion of their brief attached to their Motion, that only the State of oklahoma or the Environmental Protection Agency could find that a waiver of the Section 401(a) (1) certification requirements had occurred. This argument is contrary to the plain language of Section 401(a) (1) and ignores the Licensing Board's juris-diction and duty to determine whether the statutory prere-quisites, including compliance with Section 401(a) (1), for issuance of a construction permit had been met. Section 401(a) (1) provides in essence that an applicant for certain classes of federal permits (which encompass both the NRC's construction permits and LWAs as well as National Pollution Discharge Elimination System (NPDES) permits) must provide certifica-

. tion from the appropriate authority that certain specified water quality laws will be complied with. However, as provided in Section 401(a) (1) , "If the Stato, interstate v

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agency, or Administrator, as the_ case may be, fails or .

refuses to act on a request for certification, within a reasonable period of. time (which shall not' exceed one year) after receipt of.such request, the certification require- r ments of this subsection shall'be' waived with respect to such Federal application" (en.phasis supplied) .

• Thus, the issue i

before the Licensing Board was not whether any particular federal or state' agency had voluntarily waived its Section 401 certification responsibilities, but rather, whether the facts justified a finding that Section 401 certification' requirements had been vaived by operation of law.

The Licensing Board had the clear jurisdiction and duty to determine whether_ Section 401(a) (1) had.been complied with. Washington Public Power Supply System (Hanford No. 2 Nuclear Power Plant), ALAB-113, : 6 AEC 251- (1973) . Such jurisdiction would, of course, extend to determining whether_  !

the . provisions of Section 4 01(a) (1) had been~ waived, just

• On its face, Section 401 makes clear that a determina-tion.by one agency ~that the Section 401 certification requirements have been waived with respect to the application before it does not affect the certification requirements with respect to an application for a different Federal permit before a different Federal agency. Thus, the body of Intervenors' Motion addrecses Litself entirely lto specious material having no bearing on the corre-tness of the Licensing Board's finding that the Section 401 certification requirements had been waived withLrespect to the application for an NRC construction permit. The Licensing Board did not address the need for certification in connection with t any NPDES permit' applications.

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... as in thaLMarble' Hill

• case, the Licensing Board, in deter-7 l mining compli'ance with Section 401(a) (1) , - had the obligation j to decide, as:a matter ^of fact, the location of the boundary' I 1

between; Kentucky and Indiana',falthough it lacked jurisdic- I h tion to establish that: boundary. ,

(2) Sufficiency of the Evidence The evidence presented to the Licensing Board Lcleaily established that the Section 401(a) (1) certification

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requirements had been' waived for purposes of the Black Fox Station construction permit application.- Dr. G. A. Shirazi',

then Chief of the Water Quality Division of the Okinhoma Water Resources Board ("OWRB") , was called as a ' Board wit-ness and testified that amon'g the powers and duties of OWRB was participation in 401 certifications (Tr. p. 2037) .

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Indeed, Applicants' request for 401 certification'was filed on October 21, 1975, in the precise form and format agreed to at a meeting between representatives of OWRB,L he t Environ-mental Protection Agency and Public Service Company of Okla-homa -("PSO") , the lead Applicant (Nr. Conrad of PSO at Tr.  ;

J pp. 2299-2307). Thus, the question of written procedures l I

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• In Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units-1 and 2), ALAB-493, CCH Nuc.

Reg. Rep. 530,323,-p. 28,752 (August 30, 1978), the Licensing. Board was required to determine whether a certification from-Indiana was sufficient under Sec-

. tion 401.: This question turned on whether the discharge originated in thefwaters of-Kentucky or Indiana, which required l finding the boundary between those states.

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v i for processing 401 certification-requests, as discussed in 1

Intervenors' appeal brief at pages'64 and 65, is irrelevant.

OWRB has the legal authority'to grant such certifications and instructed Applicants on the procedures to be followed.

As of the time Dr. Shirazi testified on September 2, 1977, a full-23 months after Applicants' request for'certi-fication-was filed, OWRB'had not granted or denied certifi-cation (Shirazi at Tr. p. ' 2089). nor had OhhB requested any additional information from Applicants (Co'nrad at Tr. p. 2306).

Given these unrefuted facts, the' Licensing Board was entirely correct in finding that'the State of Oklahoma had failed to  :

act on Applicants' request for 401 certification within a reasonable. time and that, therefore, the certification

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requirements of Section 401 of FWPCA have been waived by operation'of law with respect to the Black Fox Station ,

construction permit application before tbe,NRC (PID, 155 .

at pp. 31, 32).

b) Irreparable Injury Intervenors have not attempted to show injury to themselves, irreparable or otherwise. However, their Motion >

demonstrates that no irreparable injury to Intervenors would flow from'the State's failure to issue a 401 certification prior to the-NRC's issuance of an LWA. The legislative

history of the FWPCA states with respect to Section 40) that "The purpose of the certification. mechanism provided in this law is to assure that the Federal licensing or permitting- ,

ag'ehciesJeannot. override State water quality requirements." -

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.(Senate Report ' No. '92-414, reprinted ' at.1972 U.S.. Cong. and y AdmL-News 3668',:3735). As Intervenors pointfout in their [

Motion,.the State of Oklahoma can still issue a 401 cer- ,

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tificationt for'the-Black Fox Station NPDES permit applica--

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tion (now pending before the Environmental Protection Agency, land ]

any effluent-limitation contained therein becomes binding on ,

Applicants by virtue of Section 401(d) of FWPCA. Licensing, Board condition :Se (PID, p.: 124) will assure that no work performed pursuantLto the LWA will preclude' compliance with.

such conditions. .

c)' Harm to'Other Parties An LWA was. issued.on-July'26, 1978, and limited -}

J Work began on the Black Fox Station on or about'that date.

-If a stay were. issued now, Apt licants.wouldLbe required to ,

y absorb certain otherwise unnecessary expenses associated q with:

1) Protecting-from the elements the site work ,

already done'for an indefinite; time; ,

2) Shutting down the site work;

3) Security.and maintenance of the site during any. stay;'and 4)- Building up to the current work ~ level after i

the stay.is lifted. .t

t Moreover,.much of Applicants' current construction work

..c[forcewouldface_'anindefinitelayoffandanyconstruction delays.could delay the commercial operation date of the L IStation. '

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"d) . The Public Interest [

> .The Licensing Board.found that energy to be pro-  ;

duced.atithe Black. Fox Station will be necessary to meet j

. growing demand for' electricity.and, in any event, early

-completion of the Black Fox Station could help conserve

-l dwindling. supplies of natural gas (the primary boiler fuel

' of. two 'of ttie: three Applicants) (PID, il81 at p. 92).

Any i

. stay of-construction is. contrary to the public interest. -

Conclusion For all the foregoing reasons, "Intervenors' Motion For Order Staying LWA Pending. Appeal" should be denied. y DATED: October 27, 1978 Respectfully submitted, L i v'i Vt f bc L] c Paul M. Murphy /

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ISHAM, LINCOLN & BEALE- One of the Attorneys One First National ~ Plaza for Applicants ,

Suite 4200

-Chicago, Illinois 60603 (312)786-7500 r

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e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of the Application of )

Public Service Company of Oklahoma, )

Associated Electric Cooperative, Inc. ) Docket Nos, and ) STN 50-556 Western Farmers Electric Cooperative ) STN 50-557

)

(Black Fox Unitt 1 and 2) )

CERTIFICATE OF SERVICE I, Paul M. Murphy, one of the attorneys for Public Service Company of Oklanoma, certify that copies of "Appli-cants' Opposition To 'Intervenors' Motion For Order Staying LWA Pending Appeal'" have been served in the above-captioned matter on the following by United States mail, postage pre-paid, this 27th day of October, 1978:

Alan S. Rosenthal, Chairman ,

Atomic Safety and Licensing Appeal Board l United States Nuclear Regulatory Commission j Washington, D.C. 20555 Dr. W. Reed Johnson  ;

Atomic Safety and Licensing Appeal Board Panel J United States Nuclear Regulatory Commission  !

Washington, D.C. 20555  !

Jerome E. Sharfman Atomic Safety and Licensing Appeal Board Panel United States Nuclear Regulatory Commission ]

Washington, D.C. 20555 j Sheldon J. Wolfe, Esq.

Atomic Safety and Licensing Board Panel s United States Nuclear Regulatory Commission Washington, D.C. 20555 ,

a Mr. Frederick J. Shon Atomic Safety and Licensing Board Panel United States Nuclear Regulatory Commission Washington, D.C. 20555 i

Dr. Parl W. Purdom j Director, Environmental Studies Group  !

i Drexel University 32nd and Chestnut Streets f Philadelphia, Pennsylvania 19104 l l

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'4 L. Dow Davis, Esq. .

Office'of the Executive Legal Director.

United States' Nuclear Regulatory Commission Washington,'D.C. 20555

' Andrew T. Dalton, Esq.

1437 Louth Main Street Room 302 Tulsa, Oklahoma 74119 Joseph R. Farris,'Esq.

Green, Feldman, Hall & Woodard Suite.816 Enterprise Building Tulsa, Oklahoma 74103 Mrs. Ilene Younghein

'3900'Cashion Place Oklahoma City, Oklahoma _73112 Mrs. Carrie Dickerson Citizens Action for Safe Energy, Inc.

P.O. Box 924 Claremore, Oklahoma 74104 Chief Hearing Counsel Office of the Executive Legal Director ,

United States Nuclear Regulatory Commission Washington, D.C. 20555 ,

Atomic Safety and Licensing' Board Panel Attention: Chief, Docketing and Service Section United States Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel Attention: Chief, Docketing and Service Section United States Nuclear Regulatory Commission Washington,-D.C. 20555 Secretary Attention: Chief, Docketing and Service Section United States Nuclear Regulatory Commission Washington, D.C. 20555 Joseph Gallo, Esq.

Isham,1 Lincoln & Beale 1050 17th Street, N.W.

Washington, D.C. 20036 Mr. Maynard Human General Manager '

Western Farmers Electric Cooperative P.10. Box 429-

Anadarko, Oklahoma 73005

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P l- f an .. i 1

- . <r Mr.. Gerald-F. Diddle'- .i

' General Manager' . .

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' Associated Electric Cooperative,:Inc. .

P.O.'BoxL754' :c f

Springfield, Missouri 65801:

E , Mr. Lawrence'Burrell Rt. .1,= Box 19.7 Fairview, Oklahoma- 73737 Dr.'M. J.. Robinson

' Black.& veatch ,

1P.O.: Box.8405 .<.

Kansas; City,. Missouri l 64214-

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Mr. Vaughn L. Conrad , [

PublicfServico Company of-Oklahoma-

'P.O. Box 201-Tulsa,' Oklahoma - 74102 i Mr.' T. N. Ewing. ..

Public. Service Company of Oklahoma-P.O. Box 201 Tulsa,J. Oklahoma ' 74102- ,

t L. DATED : - October 27, 1978 ,

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