ML20148K091

Memorandum & Order Denying Intervenor'S Motion for Directed Certification

ML20148K091
Person / Time
Site:	Black Fox
Issue date:	11/03/1978
From:	Shon F, Wolfe S Atomic Safety and Licensing Board Panel
To:
References
NUDOCS 7811170003
Download: ML20148K091 (5)

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UNITED-STATES OF AMERICA u NUCLEAR REGULATORY COMMISSION Z?7; O c$ ,

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. BEFORE THE ATOMIC SAFETY AND LICENSING BOAR ,

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PUBLIC SERVICE COMPANY OF OKLAHOMA, Docket Nos. STN 50-556

' ASSOCIATED ELECTRIC COOPERATIVE, INC. STN 50-557 and WESTERN FARMERS ELECTRIC COOPERATIVE, )

INC. )

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(Black Fox Station, Units 1 and 2) )

MEMORANDUM AND ORDER l

MEMORANDUM On October 5,1978, Intervenors filed a Motion For Directed l Certification. Under dates of October 25 and October 27, 1978 respectively, the Staff filed an opposing Response and Applicants filed an Opposition to the instant Motion.

1. Background i On September 8,1978, in our Order Ruling On Motions For

Summary Disposition, citing Gulf States Utilities Company, (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760 (1977), we posed several questions to be addressed by the parties at the health and safety hearing l j

beginning on October 10th with regard to uncompleted Task Action Plans and.with regard to an ACRS investigation. Thereafter, on September 19, 1978, the Intervenors filed a Motion To Compel Further Supplementation-Of The NRC's Safety Evaluation Report (SER) And To Continue The Evidentiary Hearing On Health And Safety Issues Pending Such Supplementation. In sup-  !

port of said Motion the Intervenors urged.that, contrary to the River Bend ..

l requirements, the SER, as supplemented, did not address certain unresolved u

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generic health and safety problems and reflected inadequate investiga-tions and incomplete analyses thereof.

7 Subsequently, on September 25, 1978, the NRC Staff sub-mitted the prefiled 56-page testimony of Messrs. Aycock, Crocker and Thomas on the status of Staff's activities regarding generic safety )

issues (the so-called TAP-1 testimony), as well as prefiled testimonies l responding to the Board's questions posed in the Order of September 8, 1978. On September 29,'1978, the Board denied Intervenors' Motion To Compel and To Continue dated September 19th because we understood the j Appeal Board instruction in River Bend to be that, in the event the SER does not address certain generic safety problems, individual licensing  !

boards have the authority to insist that such information be supplied on f l

the record by evidence adduced at the hearing. We indicated that, not having heard either the (Staff's) testimony responding to our questions regarding Task Action Plans and the ACRS investigation or cross-examination, we could not determine whether the information being furnished would be sufficient to enable us to make the safety findings required at the con-struction permit level, but, that if such testimony was found to be inadequate or deficient in some respect, we would not close proof and  ;

would direct that further information be presented.

2. The Motion For Directed Certification Is Denied.

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Citing 10 C.F.R. 5 2.718(1)T the Intervenors in substance request that we certify the question of whether the evidentiary hearing l

should be' continued when, as herein, the SER and the Staff's prefiled I testimony (the so-called TAP-1 testimony referred to above) are grossly and patently inadequate under River Bend standards.~2/ The Intervenors 1/ Since the requested certification is of a question decided adversely to them in our ruling of September 29, 1978, Intervenors should have cited 1 2.730(f) which provides in pertinent part:

. . . When in the judgment of the presiding officer prompt decision is necessary to pre-vent detriment to the public interest or i unusual delay or expense, the presiding officer may refer the ruling promptly to the Commis-sion . . .

However, in Public Service Company of New Hampshire, et al. (Seabrook j Station, Units- 1 and 2), ALAB-271,1 NRC 478, 483 (1975), the Appeal Board >

indicated that the standards for referral and directed certification are I the same. J 2/ Intervenors list six alleged inadequacies in the TAP-1 testimony. One such alleged deficiency is that the TAP-1 testimony does not refer to General Electric Company's so-called " Reed Report". It should be noted that during the course of the evidentiary hearing, on October 18, 1978, upon'the Intervenors' application, the Board issued a subpoena duces tecum directing General Electric to produce the " Reed Report". On October 30, 1978, General Electric filed a Motion To Quash. The parties are to respond on or before November 7th and thereafter the Board will rule on said Motion. l l

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also argue that the hearing be continued since they have not been provided with time for additional discovery and for the preparation of '

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rebuttal testimony.

The general policy of the Commission does not favor the singling out of an issue for appellate examination during the continued pendency of the trial proceeding in which that issue came to the fore (Public Service Company of New Hampshire, et al . (Seabrook Station, Units 1 and 2), ALAB-271,1 NRC 478, 483 (1975)), and certification is the exception and not the rule (Toledo Edison Company, et al. (Davis-Besse Nuclear Power Station) and Cleveland Electric Illuminating Company, 1

et al . (Perry Nuclear Power Plant, Units 1 and 2), ALAB-300, 2 NRC 752, j 1

759 (1975)). Further,'other than conclusionally, the Intervenors do  !

not tell us what detriment to the public interest or unusual delay or ~

l expense would be prevented by our referral of the question for certifica- '

tion pursuant to 10 C.F.R. 5 2.730(f). Moreover, they fail to tell us what is the major or novel question of policy, law or procedure raised under 10 C.F.R. Part 2, Appendix A, V(f)(4), which cannot be resolved 3/ This argument has been mooted. On October 10, 1978, at the beginning of the health and safety hearing, the Board ruled that the Intervenors could proceed with discovery (Tr. 4456), and the hearing was recessed on October 20th before the so-called TAP-1 testimony could be reached. By the time the hearing is resumed in early December,1978, the Intervenors will have completed discovery, and will have had a month and a half within which to' review Staff's TAP-1 written testimony and to prepare rebuttal testimony, if any.

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l except by the Commission or the Appeal Board. We see no exceptional 1

circumstances herein nor perceive that the Intervenors will suffer any immediate and serious irreparable harm. Indeed, we posed Board ques-tions in our Order of September 8, 1978 in order to prevent any detriment to the public interest, and, in our Order of September 29, 1978, we did resolve the procedure to be followed in accordance with the River Bend instructions.

Dr. Purdom concurs but was not available to sign the instant Memorandum and Order.

ORDER Intervenors' Motion For Directed Certification is denied.

IT IS SO ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD L '

(. l * ,

. ..  %, g Frederick J..Shonv Member Sheldon J. tg fe, Escfuire Chairman Dated at Bethesda, Maryland this 3rd day of November, 1978.

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