ML20148H561

Applicant'S Opposition to Intervenor'S Motion for Directed Certification

ML20148H561
Person / Time
Site:	Black Fox
Issue date:	10/27/1978
From:	Murphy P ISHAM, LINCOLN & BEALE
To:
References
NUDOCS 7811140047
Download: ML20148H561 (7)

Text

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10/27/7s h NRC PUBLIC DOCUMENT ROOM i

UNITED STATES OF AMERICA @ .

D NUCLEAR REGULATORY COMMISSION #f N BEFORE THE ATOMIC SAFETY AND LICENSING BOARD $ 4 OCO09g y _

In the Matter of the Application of ) E a ++,$* -3 Public Service Company of Oklahoma, ) T G *a Associated Electric Cooperative, Inc. ) Docket Nos. b y 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 DIRECTED CERTIFICATION" l

3 i Public Service Company of Oklahoma, Associated l

' l Electric Cooperative, Inc. and Western Farmers Electric

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Cooperative (" Applicants " ) oppose Intervenors' Motion For

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Directed Certification on the grounds that the issue sought to be certified does not meet the well-established criteria for certification.

Argument  ;

The Appeal Board has held "that, at the very mini-

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mum, a party asking that we invoke our Section 2.718(i) cer- j tification authority must establish that a referral would  !

have been proper; i.e., that, failing a certification, the j public interest will suffer or unusual delay or expense will be encountered." Public Service Co. of New Hampshire (Sea-brook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 483 (1975). The very cases cited by Intervenors in support of ,

their Motion have held that the very type of so-called

" exceptional circumstances" described by Intervenors do not I

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4 warrant certification. Toledo Edison Co. (Davis-Besse Nuclear Tower Station, Unit 1), ALAB-314, 3 NRC 98 (1976);

Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-353, 4 NRC 381 (1976); Power Authority of the State of New York (Greene County Nuclear Power Plant),

ALAB-439, 6 NRC 640 (1977). See also, Long Island Light-ing Co. (Jamesport Nuclear Power Station, Units 1 and 2),

ALAB-318, 3 NRC 186 (1976).

Intervenors' complaints fall into two categories:

a) Intervenors have inadequate discovery oppor-tunities and time to prepare a response to the NRC Staff's Task Action Plan testimony (the " TAP-1" testimony).

l This issue has been totally me sted by the fact that the " TAP-1" testimony was not, in fact, presented at the October 10-20, 1978 hearings, and by the Board's Order granting Intervenors an opportunity for discovery with respect to the Staff's " TAP-1" testimony (Tr. p. 4455).

, b) Intervenors claim there are inadequacies in l

1 the " TAP-1" testimony that justify a continuance of the hearing.

In essence, Intervenors are making the incredible request that an appellate tribunal be saddled with the burden of determining the sufficiency of the evidence before the material has even been evaluated by the trier of law or placed in evidence before the trier of fact. Evidentiary questions must always be decided by the Licensing Board in the first instance. Any determination by the Licensing Board l l 1

concerning the sufficiency of the propored evidence would be premature prior to ar opportunity for cross-examination, i

redirect examination and rebuttal testimony. Even if Inter-  !

l venors' list of so-called inadequacies in the NRC Staff's proposed evidentiary presentation were correct, a very high probabillcy exists that any sucn inadequacies would be mooted during upcoming hearings.

The Appeal Board has on several occasions stated unequivocally that it will not a31ow intorlocutory appeals under 10 CFR S2. 713 (i) of Licensing Board evidentiary rul-ings. Jamerport, ALAB-318, supra, 3 NRC 186, 187; Davis-Besse, ALAB-314, supra, 3 NRC 58, 99. Obviously, if the Appeal Board will not accept certification of evidentiary questions already decided by a Licensing Board, it will not prejudge evidentiary questions not yet ripe for determina-l tion by a Licensing Board.

In short, Iv' evenors' claim of " exceptional cir-cumstances" amounts to nothing more than an argument that if their own erroneous interpretation of e Gulf States Utili-ties Co. (River Bend Station, Units 1 and 2) , AL'q-4 4 4, 6 NRC 760 (1977) decision and prematnre erl.uation of the evidence are adopted by the Appeal T, card, then the possi-bility exists that error has been or will be committed by the Licensing Board in this case. The mere possibility that an erroneous decision has been or will be made is never in itself an exceptional circumstance warranting certification.

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Davis-Besse, ALAB-314, supra, 3 NRC 98, 100; ,Seabrook, ALAB-271, supra, 1 NRC 478, 485.

1 WHEREFORE, Intervenors' Motion For Directed Certi-fication should be denied.

DATED: October 27, 1978 l Respectfully submitted,

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.lQ Q 'Y/ l. ' ?/ f.h' Paul M. Murphy /

One of the Attorneys for Applicants ISHAM, LINCOLN & BEALE One First Nationtl Plaza Suite 4200 Chicago, Illinois 60603 .

l (312)786-7500  !

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING 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 Units 1 and 2) )

CERTIFICATE OF SERVICE I, Paul M. Murphy, one of the attorneys for Public Service Company of Oklahoma, certify that copies of "Appli-cants' Opposition To Intervenors' ' Motion For Directed Cer-tification'" have been served in the above-captioned matter on the following by United States mail, postage prepaid, this 27th day of Octcher, 1978:

Sheldon J. Wolfe, Esq.

Atc?.ic Safety and Licensing Board Panel Untted States Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Frederick . Snon Atomic Safety and Licensing Board Panel United States Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Pcul W. Purdom Director, Environmental Studies Group Drexel University 32nd and Chestnut Streets Philadelphia, Pennsylvania 19104 1 Dow Davis, Esq.

Office of the Executive Legal Director United States Nuclear Regulatory Commission Washington, D.C. 20555 Joseph R. Farris, Esq.

Green, Feldman, Hall & Woodard Suite 816 Enterprise Builditg Tulsa, Oklahoma '/4103 Andrew T. Dalton, Esq.

1437 South Main Street Room 302 Tilca. Oklahoma 74119

6 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 4 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' 1 Attention: Chie!, Docketing and Service Section United States Nuclear Regulatory Commission Washington, D.C. 20555 Secretary Attention: Chief, Docketing and Service Section l United States Nuclear Regulatory Commission l Washington, D.C. 20555 Mr. Joseph Gallo Isham, Lincoln & Beale 1050 17th Street, N.W.

Washington, D.C. 20036 Mr. Maynard Human General Manager Western Farmers Electric Cooperative P. O. Box 429 Anadarko, Oklahoma 73005 Mr. Gerald F. Diddle General Manager Associated F.lectric , operative, Inc.

P.O. Box 754 Springfield, Missouri 65801 Mr. Lawrence Burrell Rt. 1, Box 197 Fairview, Oklahoma 73737 Dr. M. J. Robinson Black & Veatch P.O. Box 8405 Kansas City, Missouri 64114 l .

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Mr. Vaughn L. Conrad Public Service Company of Oklahoma

P.O. Box 201

. Tulsa, Oklahoma 74102 Mr. T. N. Ewing Public Service Company of Oklahoma P.O. Box 201 i Tulsa, Oklahoma 74102 s

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DATED: October 27, 1978 I /

1 daPaul M. /7  : Ag Murphy /

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