ML20148M416

NRC Staff'S Response to Applicant Psok'S Motion to Dismiss Intervenor L Burrell & Contentions Upon Which Burrell Had Been Admitted as Party.Nrc Contends That Motion Should Be Denied.Cert of Svc Encl

ML20148M416
Person / Time
Site:	Black Fox
Issue date:	11/02/1978
From:	Davis L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:
References
NUDOCS 7811220014
Download: ML20148M416 (7)

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WMn or NRC PUBLIC DOCUMENT ROOM 11/2/73 (N fgY UNITED STATES OF A"EPICA (r 4 X llVCLEAR REGULATORY CC:^ilSSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

% .atter of )

PUBLIC SERVICE COMPANY OF OKLAHOMA, ASSOCIATED ELECTRIC COOPERATIVE, INC. ) Docket Nos. STN 50-556 AND WESTERN FARMERS ELECTRIC COOPERATIVE) STN 50-557 INC.

(Black Fox Station, Units 1 and 2) )

HRC STAFF RESPONSE TO APPLICANTS' MOTION TO DISMISS INTERVENOR LAWRENCE BURRELL AND CERTAIN CONTENTIONS Baclground i

In a motion dated October 13, 1978, Applicants moved to dismiss Lawrence Burrell as a party to these proceedings and to dismiss the contentions upon which Mr. Burrell had been admitted as a party. Since Mr. Burrell had been admitted as a discretionary intervenor under the rationale of the Pebble Springs _ decisionN entirely on the basis of his promise to further develop the record by presenting expert testimony in the person of Dr. David Webb, Public Service Company of Oklahoma (Black Fox Units 1 and 2), LBP-77-17, 5 NRC 657, 660, (March 1977) affd. by Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397 ,

5 NRC 1143 (May 9, 1977), and Dr. Webb had not been presented as a witness, Applicants argued that Mr. Burrell and his contentions on ATWS and' sabotage should be dismissed from this proceeding. Applicants Motion to Dismiss at 1-3.

7 811 g g oof y b, Cr ,

b ortland P General E]ectric Company (Pebble Springs, Units 1 and 2),

CLI-76-27, 4 NRC 610 (~1TT67 l

l for the reasons listed below, the NRC Staff believes that Applicants' l Motion to Dismiss Mr. Burrell as a party should be denied and that their motion to dismiss the'ATWS and sabotage contentions should be granted only insofar as the ATWS contention deals with the " credible class nine [

accidents" issue which was to have been based primarily on Dr. David Webb's testimony.

Arguments

1. NRC regulations 2l and precedents permit- an Atomic Safety and-p Licensing Board to dismiss parties and their contentions from a proceeding when they have failed to assume a significant participational role in the proceeding. E.g. , Gulf States Utilities

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Co. (River Bend Station), ALAB-358, 4 NRC 358, 560 (1976). The NRC Staff believes that a motion to dismiss Mr. Burrell and his contentions from this proceeding would properly lie if Mr. Burrell, as a matter of fact, failed to present some form of expert testimony on the contentions which had formed the basis for his admission as a discretionary inter-venor under the Pebble Springs rationale. Portland General Electric Co.

(Pebble Springs, Units 1 and 2), CLI-76-27, 4 NRC 610, (1976). . However, I it is the Staff's understanding that these are not the facts in the instant case. _

2) 10 C.F.R. 52.707.

3,f , Northern States Power Cc. (Prairie Island Nuclear Generating E

F5 t,'Tiiiits 1 and 2] T ALAB-288, 2 NRC 390, 393 (1975).

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2. Based on the representations found in the Intervenors' Octobe r 25, l 1978 Reply to Applicants Motion to Dismiss Lawrence Bu>rell and upon conversations with Counsel for the Intervenors, the NRC Staf f understands that Mr. Burrell, instead of presenting the testimony of Dr. David Webb on ATWS, has instead been represented by Counsel and offered the testimony of Mr. Gregory C. Minor on ATWS and Mr. Richard Hubbard on the subject of Plant Security.SI This change in witnesses  ;

apparently occurred for financial reasons and the fact that Intervenors ,

had retained MHB Associates as witnesses for their case in chief.

The NRC Staff believes that Intervenor Burrell's efforts are sufficient to avoid di; missal under the'~ rat _ionale of the Prairie Island and other

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cases cited supra and under the rationale of the cases cited by Applicants in their Motion to Dismiss. The . cases cited by Applicants deal mainly with situations where no effort to present evidence, brief issues or even appear at the hearing was volunteered by the Intervenors in question, situations which are clearly distinguishable from tie instant case where the Intervenor merely of fered a different witness from the one proffered at the time he and his contentions were admitted.

AI While Mr. Hubbard's testimony has been withdrawn upon questioring of his credentials in the security area, Tr. 6227, the Staff believes

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his attempt to proffer evidence on behalf of Burrell should be enough to resist dismissal of that contention.

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3. The NRC Staff does believe that one part o f the Applicants' Motion i to Dismiss is meritorious. In connection witt the admission of Mr. Burrell i 1

and an attempt to introduce a new contention cn class nine accidents,  !

the Licensing Board sought and received sugges tions from the parties as )

to credible events which could cause a class nine accident but which would not challenge any of the Commission's regulations or be contrary to existing precedent. After a review of the sut missions of the parties on the subject (including the submission by Dr. Webb who suggested what he thought to be a list of " credible" mechanisms),the Board suggested  ;

hearing testimony on certain credible accident scenarios under the  !

already-admitted ATWS and sabotage contentions. Board Memorandum and

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Order dated May 25, 1978. It was in anticipation of Dr. Webb's testimony on credible mechanisms that the Staff submitted, the material contained in its Septem'.3r 25, 1978 testimony by A.C. Tl adani on pages 65-7'to 65-8. Since Dr. Webb will not be present to trgue his class nine accident scenarios and Mr. Minor's testimony does not tddress that subject, the i

NRC Staff believes that that portion of the AlWS contention dealing with l

" credible class 9 accidents" should be dismissed. Accordingly, if the Board so rules, the NRC Staff will, at a later date, voluntarily withdraw that por~ of the Staff ATWS testimony dealing with the subject 6f credibit ss 9 accidents since that testimony is irrelevant to the issues as now formulated.

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Conclusion For the reasons listed above, the NRC Staff believes that Mr. Burrell should not be dismissed as a party to this proceeding and that the ATWS and sabotage contentions should not be stricken, but that the portion of the ATWS contention dealing with " credible Class 9 accidents" should be declared by the Licensing Board to be irrelevant 'to 'the issues

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as now formulated.

Respectfully submitted,

.bN  %

L. Dow Davis Counsel for NRC Staff Dated at .Bethesda, Maryland t his 2nd' day of November,1978

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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0fMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

PU! LIC SERVICE COMPANY OF OKLAHOMA, )

AS' OCIATED ELECTRIC COOPERATIVE, INC. ) Docket Nos. STN 50-556 d STN 50-557 l WESTERN FARMERS ECTRIC COOPERATIVE, INC.

)

(Black Fox Station, Units 1 and 2) )

CERTIFICATE OF SEPVICE I hereby certify that copies of "flRC STAFF RESPONSE TO APPLICANTS' MOTION TJ DISMISS INTERVENOR LAWRENCE BURRELL Af1D CERTAIN CONTENTI0f45",

Dated No / ember 2,1978, in the above-captioned proceeding, have been served 01 the following by deposit in the United States mail, first class, or, as aindicated by an. asterisk through deposit in the Nuclear Regulato y Commission's internal mail system, this 2nd day of November, 1978:

~She don J. Wolie', ~Esq. Mrs. Carrie Dickerson I Atcmic Safety and Licensing Board Citizens Action for Safe U. S. Nuclear Regulatory Commission Energy, Inc.

Wa hi ng ton , D. C. P. O. Box 924

< 20555

, Claremore, Oklahoma 74107 l s Mr. Frederick J. Shon, flember )

Attmic Safety and Licensing Board Mr. Clyde Wisner U. S. Nuclear Regulatory Commission NRC Region 4 Wat hington , D. C. 20555 Public Affairs Officer 611 Ryan Plaza Drive Dr. Paul U. Purdom Suite 1000 Dir ector, Environmental Studies Group Arlington, lems 76011 Drt xel University 32rd and Chestnut Street Andrew T. Dalton, Jr. , Esq.

Phdladelphla, Pennsylvanin 19104 Attorney at Law 1437 South Main Street, Room 302 Joseph Gallo, Esq.

, Tulsa, Oklahoma 74119 ~

Istam, Lincoln & Beale 105017th Street, N.W.

Was hington, D. 'C. 20036 Mrs. Ilene H. Younghein 3900 Cashion Place Michael I. Miller, Esq. Oklahoma. City, Oklahoma 73112 Isham, Lincoln & Beale One 1st National Plaza Paul M. Murohy Suite 2400 Isham, Lincoln & Beale Ch:cago, Illinois 60606 One First National Plaza, Suite 4200 Chicago, Illinois 60603

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Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Pcnel U. S. fluclear Regulatory Coranission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Docketing and Service Section Mr. '1ayriard Hunan Office of the Secretary of the General Manager . .

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Comnis sion Nesteia Farmers Coop., Inc.

U. S. Nuclear Regulatory Commission P. O. Box 429 Washington, D. C. 20555 Anadarko, Oklahoma 73005 Lawrence Durrell fir. T. N. Ewino Route 1, Box 197 Acting Director Fairview, Oklahoma 73737 Black Fox Station uclear Project ,

P;blic Service Ccopany of Oklahoma r, l, Mr. Gerald F. Diddle P. O. Box 201  ;, , ,

General Manager Tulsa, Oklahoma 74102 '.;

Associated Electric Cooperative, Inc.

P. O. Box 754 Dr. M. J. Robinson '

Springfield, Missouri 65801 Black & Veatch ,

P.O. Box 8405 -

Mr. Vaughn L. Conrad Kansas City, Missouri 64114 Public Service Company of Oklahoma P.O. Box 201 Tulsa, Oklahoma 74102 Joseph R. Faris, Esq. ,

i Robert Franden, Esq.

l Green, Feldman, Hall & Woodard 816 fnterprise Building g~'h g" ~.' l'\'",'

Tulsa, Oklahoma 74103 L. Dow Davi s /.

Counsel for NRC Scaff e Y

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