ML20148J858

NRC Staff Response to Intervenor'S Motion for Order Staying LWA Pending Appeal.Staff Urges Motion Be Denied.Cert of Svc Encl

ML20148J858
Person / Time
Site:	Black Fox
Issue date:	11/01/1978
From:	Davis L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:
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ML20148J855	List: ML20148J851 ML20148J858
References
NUDOCS 7811160159
Download: ML20148J858 (9)

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UNITED STATES OF AMERICA

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NUCLEAR REGULATORY COMMISSION i BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of' )

PUBLIC SERVICE COMPANY OF OXLAHOMA 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 INTERVEN0RS' MOTION i FOR ORDER STAYING LWA pef' DING APPEAL Backgrou_nd In a motion dated October 2, 978, Intervenors moved that this Atomic Safety and Licensing Appeal Board stay the Limited Work Authorization (LWA)1/ authorized by the Licensing Board's July 24, 1978 Partial ,

Initial Decision Authorizing Limited Work Authorization. Intervenors maintained that the LWA was issued without proper certification under ,

Section 401 of the Federal Water Pollution Control Act of 1972, 33 U.S.C.

51341(o)(1). .

For the reasons discussed below, the NRC Staff believes that the Intervenors' motion must be denied. ,.

! N A Limited Work' Authorization was issued by the Director, Division '

of Project Management, Office of Nuclear Reactor Regulation, on l July 26, 1978.

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Legal Requirements for a Stay The Appeal Board has held that a stay of an initial decision will be granted only u;en a showing similar to'that required for a preliminary injunction in the Federal courts. Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-81, WASH-1218 (Supp.1) 546 -(1972). The test to be applied for such a showing is that laid down in Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d .921, 925 (D.C. Cir.1958). Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2). ALAB-338, 4 NRC 10 (1976); Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-221, 8 AEC 95, 96 (1974); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-199, 7 AEC 478, 480 (1974); Northern Indiana Public_ Service Co. (Bailly Generating Station, Nuclear-1), ALAB-192, 7 AEC 420, 421 (1974). Under this test, f

which has been codified under 10 C.F.R. 52.788(e), the following four factors must be examined: .

1. Whether the moving party has made a strong showing that it is likely to prevail on the merits; Whether the party will be irreparably injured unless a stay  ;

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is granted;

3. Whether the granting of a stay would harm other parties; and

4. Where the public interest lies.

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l. Irreparable Injury Intervenors' two-page motion does not even allege, much less prove, that irreparable injury will occur if the Black Fox LWA is not enjoined. Intervenors have filed their motion nearly two months after the modified decision of the Licensing Board dated August 24, 1978. Even if it were argued that their motion to revoke or suspend which was served on the Appeal Board on September 2, 1978, were essentially a motion for a stay, the grounds alleged in that motion are not the same grounds now urged by Intervenors. Further, Intervenors have made no allegation that the grounds now alleged were not then known nor have they argued that any injury is now accruing to them as a result of the .

legal dispute surrounding the 401 certification. Thus it is abundantly clear that Intervenors perceive no irreparable injury to their interests which might be occasioned by the pendency of this appeal.E

2. Harm to Other Parties The Intervenors' Motion to Stay does not address the issue of whether harm to other parties would occur were a stay to be granted. However, U The irreparable harm of import is that which is attributable to activities which precede or follow resolution of the appeal, P_ublic Service of New Hampshire (Seabrook, Units 1 & 2) ALAB-338, 4 NRC 10, 15 (1976); N_orthern Indiana Public Service Co. (Bailly Generating station, Unitl), ALAB-192, 7 AEC 420, 421 (1974).

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4-the Applicant is currently in the process of site preparation and thus would likely suffer economic injury were its LWA to be stayed pending appeal. Under this circumstance it appears to us that the economic injury likely to be suffered by the Applicant if the stay were granted is controlling absent any countervailing facts. Such facts are not ,

presented by Intervenors' notion.

3. Public Interest Intervenors fail to show how the public interest would be affected by the failure of this Appeal Board to grant a stay. The evidence which is part of the evidentiary record of the environmental and site suitability hearing makes clear that the Black Fox Plant is essential to supply the power needed in the Oklahoma-Missouri area in the mid-1980's.

Partial Initial Decision at 89-90. Intervenors' failure to show how the public interest would be affected either for good or bad by the granting of this motion gravely weakens their case.

Possibility of Success on Merits 4.

While no single factor is necessarily ' dispositive under the provisions of 10 C.F.R. 12.788(e), where there is no showing by a movant that 1

irreparable harm will be sustained by denial of a stay and the other factors do not favor the movant as in the instant case, l

an overwhelming showing of likelihood of success on the 1

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4 Nw merits is, required to obtain_a stay. Florida Powe'r and Light Co. (St.

Lucie Nuclear Power Plant, Unit 2), ALAB-404, 5 NRC 1185, 1186-89 (1977).

See also, Florida Power and Light ~Co. (St. Lucie Nuclear Power Plant, Unit No.2),ALAB-415,5NRC1435,1437(1977). There should be more than a mere showing of the possibility of legal error by a licensing Board to warrant a stay. Philadelphia Electric Co. , ALAB-221 supra; Philadelphia

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Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-158, 6 AEC 999 (1973). The establishment of grounds for appeal is not in itself sufficient to justify a stay. Rather, there must be a strong probability that no ground will remain upon which the Licensing Board's action could be based. Toledo Edison Co. (Davis-Besse Nuclear Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621 (1977).

As to the strength of the Intervenors' case on the legal merits, the NRC Staff notes that the matter of State certification under Section 401 of the Federal Water Pollutio'n Control Act was fully litigated and briefed below. Based on the plain language in 33 U.S.C. 51341(a)(1)2/ and on the basis of the facts on the record showing State inactivity on certification matters for over two years, the Licensing Board held a waiver had occurred. Partial Initial Decision at 30-31.

' S/ That section states: "If a State, interstate agency or Administrator, asLthe case may be, fails or refuses to act on a request for certification within a reasonable period of time (which snall not exceed one year) after receipt-of such a request, the certification requirements of

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this subsection shall be waived with respect to such Federal application."

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, Intervenors' 'onlyL grounds for a stay appear to be the assertions that (1) the State of Oklahoma has already denied FWPCA Section 401 certification; (2) in order for a waiver of the certification procedures to have taken place, there must be a positive and conscious failure or refusal of the certifying agency to act on a request for a ,

certification, (Intervenors' Motion for Stay at 2, attached Exh. 3 at 66);and(3) any waiver must be accomplished by the EPA.

As the Licensing Board correctly noted, contrary to Intervenors' assertion, the documents and testimony cited by Intervenors and the reccrd below do not support Intervenors' allegation that certification has been denied by the State of Oklahoma but rather show that Section 401 certification has not been granted.4/ As pointed out in the Partial Initial Decision at 30-31, this conclusion is in no way contrary to or inconsistent with the Board's finding of waiver and to the Board's interpretation of Section 401 o'f the FWPCA. Moreover, neither the statute in question nor any precedent cited by Intervenors stands for the proposition pressed by Intervenors that' for a waiver to have taken place, an agency must have made a positive effort to not make or deny a certification. Nothing cited by Intervenors shows that the State of Oklahoma's failure to certify was anything more than what is covered j in Section:401 of the Act: a non-action or a failure to act for more than"the requisite period of one year. Thus the NRC Staff sees no contradiction between the State's refusal to certify and the waiver provisions of Section 401 cf tho'FWPCA.'

M The statement of EPA Counsel referenced in Intervenors' Motion for-a . Stay at ~2 is of the same ilk and is in no way inconsistent with "

i the theory of waiver sustained below.

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'1 Lastly, Intervenors argument that EPA .is responsible for a waiver determination in the absence of action or procedures necessary for certification by the State of Oklahoma is bereft of support in either 4

caselaw citation or support for that authority in the language of the Act itself. Intervenors' Motion to Stay at 1, attachment C at 64-63. .

The NRC Staff sees no legal basis or authority cited by the Intervenors which would be inconsistent with the Licensing Board's jurisidction to decide the waiver matter. ,

Conclusion For the reasons. listed above, the NRC Staff believes that the Intervenors' have not sustained their burden of showing irreparable harm to themselves, the lack of hara to other parties to tnis proceeding, where the public interest lies and/or making a strong _ showing of the possibility of success on the merits of its case. Accordingly, the Staff believes that Intervenors' Motion for a stay post be denied. ,

Respectfully submitted, O

L. Dow Davis Counsel for NRC Staff Dated at Bethesda, Maryland this 1st day of November,1978 l

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UNITED STATES'0F AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC _ SAFETY AND LICENSING APPEAL 30A_RD ,

In the Matter of )

)

PUBLIC SERVICE COMPANY OF OKLAHOMA, )

ASSOCIATED ELECTRIC COOPERATIVE, INC. )

AND )- Docket Nos. STN 50-556 WESTERfl FARMERS ELECTRIC COOPERATIVE, ) STil 50-557 INC. )

)

(Black Fox Station, Units 1 and 2) )

CE_RT_IF_I.CATE OF SERVICE I hereby certify that copies of " MOTION FOR LEAVE TO FILE OUT OF TIME REPLY T0 INTERVENORS' MOTION FOR ORDER STAYING LWA APPEAL" and "HRC STAFF RESPONSE TO INTERVENORS' MOTION FOR ORDER STAYING LWA PENDING APPEAL", dated November 1,1978, 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 Commission's internal mail system, this 1st day of November, 1978:

• Alan S. Rosenthal, Esq. , Chairman Dr. Paul W. Purdom Atomic Safety and Licensing Appeal Director, Environmental Studies Board Group U. S. Nuclear Regulatory Conmission Drexel University Washington, D. C. 20555 32nd and Chestnut Street

• Dr. W. Reed Johnson Atomic Safety and Licensing Appeal Joseph Gallo, Esq.

Board . Isham, Lincoln & Beale 1 U. S. Nuclear Regulatory Commission 1050 '17th Street, N.W. l Washington , D. C. 20555 Washington, D. C. 20036 l 1

• Jerome E. Sharfaan, Esq. i Atomic Safety and Licensing Apoeal Michael I. Miller, Esq.

Isham, Lincoln & Beale Board U. S. Nuclear Regulatory Commission One 1st National Plaza Uushington, D. C. 20555 3"Ite 2400 M cago, Ill1nois 60606 l

• Sheldon 'J. Wolfe, Esq.

Atomic Sa'fety and Licensing Board Mrs. Carrie Dickerson U. S. Nuclear Regulatory Commission Citizens Action for Safe Energy, Inc. '

Washington, D. C. 20555 P O Box 924 Claremore, Oklahoma 74017 l

• Mr. Froderi ck J. . Shon Atomic Safety and Licensino Board U. S. Nuclear Regulatory Conmission Washington, D. C. 20555 g_, -- . m. . ,

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4 Mr. Clyde llisner Mr. Gerald F. Diddle  !

NRC Region 4 General Manager l Public Affairs Officer Associated Electric Cooperative, Inc.

611 Ryan P1aza Drive P. O. Box 754 Suite 1000 Springfield, Missouri 65801 Arlington, Texas 76011 -

Mr. Maynard Human Andrew T. Dal ton, Jr. , Esq. General Manager .

Attorney at Law Western Farmers Coop., Inc.

1437 South Main Street, Room 302 P. O. Box 429 Tulsa, Oklahoma 74119 Anadarko, Oklahoma 73005 Mrs. Ilene H. Younghein

• Atomic Safety and Licensing 3900 Cashion Place Appeal Panel Oklahoma City, Oklahoma 73112 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Paul M. Murphy Isham, Lincoln & Beale

• Atomic Safety and Licensing One First National Plaza Board Panel Suite 4200 U. S. Nuclear Regulatory Commission Chicago, Illinois 60603 Washington, D. C. 20555 Lawrence Burrell

• Docheting and Service Section Route 1, Box 197 Office of the Secretary Fairview, Oklahoma 73737 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Mr. T. N. Ewing Acting Director Andrew T. Dalton, Jr. , Esq.

Black For. Station Nuclear Project 2536 East Sist Street Public Service Company of Oklahoma Tulsa, Oklahoma 74105 P. O. Box 201 Tulsa, Oklahoma 74102 Dr. M. J. Robinson

, Black & Veatch Mr. Vaughn L. Conrad P.O. Box 8405 Public Service Company of Oklahoma Kansas City, Missouri 64114 P. O. Box 201 Tulsa, Oklahoma 74102 Joseph R. Fcris, Esq. M b*

Robert Eranden, Esq. L. Dow Davis Green, Feldman, Hall & Woodard Counsel for NRC Staff 816 Enterprise Building Tulsa, Oklahoma 74103 7 * ' '

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