ML20150B613

Applicant Motion to Dismiss L Burrell as Party in Proceeding & to Dismiss Issues in Controversy,Including Contention 66 Re Sabotage & 67 Re Atws.Intervenor Has No Standing

ML20150B613
Person / Time
Site:	05000550, Black Fox
Issue date:	10/13/1978
From:	Gallo J, Murphy P, Nelson G ISHAM, LINCOLN & BEALE
To:
References
NUDOCS 7811010433
Download: ML20150B613 (9)

Text

. lI 10/13/78 hNRC PUBLIC DOCUMENI ROOM (g ,

UNITED STATES OF AMERICA g NUCLEAR REGULATORY COMMISSION // pg5%$ ,

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4 0'F Ocs -

S.? \3 s elC5*

In the Matter of the Application of ) b #$#^

Public Set i.ce Company of Oklahoma, ) g g.

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

)

(Black Fox Units 1 and 2)  ;

APPLICANTS' MOTION TO DISMISS LAWRENCE BURRELL AS A PARTY TO THESE PROCEEDINGS Public Service Company of Oklahoma, Associated Electric Cooperative, Inc. and Western Farmers Electric Co-operative (" Applicants") hereby move the Board for entry of an Order dismissing Contentions 66 (Sabotage) and 67 (ATWS),

and Mr. Lawrence Burrell as a party to these proceedings.

The grounds for this motion, as more fully set forth below, is that Mr. Burrell has lost his standing and has not par-ticipated in this proceeding.

Introduction  !

In its " Third Prehearing conference Order," dated l l

March 9, 1977, reported at 5 NRC 657, this Board held that 1

Mr. Lawrence Burrell lacked standing to intervene as of right in this proceeding under , then recently-published Amended Notice of Hearing. The Board, however, relying on its power to allow discretionary intervention,* admitted Mr. Burrell

• Portland General Electric Co. (Pebble Springs, Units 1 and 2), CLI-76-27, 4 NRC 610, 614-617 (1976).

78n01o%~b3 1

N j lt because "In the Board's view, the presentation of evidence in this area [ATWS and Sabotage] by Dr. Webb might be of assis-tance in developing the record herein." 5 NRC at 660. The Appeal Board upheld the Board's determination that Mr. Bur-rell was without standing to intervene as a matter of right

and, in addition, affirmed the Licensing Board's decision to allow Mr. Burrell to participate under tha cretionary

! intervention" doctrine. Public Service Co ' honta 4

(Black Fox Station, Units 1 and 2), ALAB-39 <C 1143 1

(May 9, 1977). The Appeal Board's decision c . leave no  ;

doubt that, but for Dr. Webb's qualifications as a witness j

and his being prepared to testify on the ATWS and Sabotage Contentions

• on Mr. Burrell's behalf, Mr. Burrell would not have been admitted as a party Intervenor. Id., p. 1149.

Otherwise, Mr. Burrell's status as a party would have met the same fate as Mrs. Funnell and Ms. Ellis, whose peti-tions, although raising new issues, were denied because they

• At Mr. Burrell's behest, Contention 67, concerning ATWS, was expanded by this Licensing Board to include certain

" credible Class 9 events." See " Third Prehearing Con-ference Order," dated March 9, 1977 (5 NRC 657) and

- Memorandum and Order, dated May 25, 1977. The matter of so called " credible Class 9 events" is separate from the present NRC Staff-industry controversy concerning The the designation of ATWS as a design-basis accident.

NRC Staff and the Applicants have submitted prefiled testimony on this latter matter, and Applicants would not object if the ATWS Contention were limited to a dis-cussion of this controversy. However, that portion of Contention 67 concerning " credible Class 9 events" should be dismissed because Dr. Webb apparently will not appear to establish the credibility of events never previously considered credible. The Appeal Board has held that everts that lack credibility need not be considered for land-based plants. Offshore Power Systens (Floating

' Nuclear Power Plants), ALAB-489, CCH Nuc. Reg. Rep.,

t30,319.01.

i could not make any showing of ability to contribute to the hearing.

On August 28, 1978, this Board ordered all of the parties to file direct testimony on September 25, 1978. No testimony was filed by Dr. Webb on behalf of Mr. Lawrence Burrell on either the ATWS or Sabotage Contentions, and no reason has been advanced for this failure. Thus, the very basis of Mr. Burrels . participation has not been satisfied, and he has lost his standing for further participation in this proceeding.

Argument The Appeal Boards of the Nuclear Regulatory Commis-sion and its predecessor, the Atomic Energy Commission, have long held that "

. . . the right of participation in an admini-strative proceeding carries with it the obligation of a party ,

to assist in ' making the system work' and to aid the agency 4 in discharging the statutory obligations with which it is a

charged." Consumers Power Co. (Midland Plant, Units 1 and 2),

ALAB-123, 6 AEC 331, 332 (1973); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-270, 1 NRC 473, 476 (1975). The right to participate in an NRC adjudicatory hearing does not carry with it a license to step in and out of participation of any particular issue at will. Northern States Power Co.

(Prairie Island Nuclear Generating Plant, Units 1 and 2),

ALAB-288, 2 NRC 390, 393 (1975). The obligation of a party includes the obligation to abide by the Commission's Rules of

. . . -- ~ . - . .-.

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Practice (Consumers Power Co., ALAB-270, supra) and to comply l with orders of the adjudicatory boards (Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-358, 4 NRC 558 (1976)). The Rules of Practice, at 10 CFR S2.707, provide l

that the Licensing Board may make such orders as are just if j a party fails to comply with a Board's prehearing order entered pursuant to 10 CFR S2.752. The Board's power under 10 CPR l

! S2.707 includes the power to dismiss a party from the proceed-i ing. Public Service Electric and Gas Co. (Atlantic Nuclear

) Generating Station, Units 1 and 2), LBP-75-62, 2 NRC 702, 706 i (1975). The NRC Licensing and Appeal Boards have not hesi- l 4

o dismiss parties, together with their contentions, sceedings before it under appropriate circumstances.

oct, e.g., Gulf States Utilities Co. (River Bend), ALAB-358, 4

supra; Consumers Power Co. (Midland), ALAB-270, supra; Public j Service Electric and Gas Co. (Atlantic Station), LBP-75-62, supra; Boston Edison Co. (Pilgrim Nuclear Generating Station ,

Unit No. 2), LDP-76-7, 3 NRC 156 (1976); Washington Public Power Supply System (WPPSS Nuclear Projects 1 and 4), LBP-75-41, 2 NRC 131, 152-3 (1975).

a i

As stated above, Mr. Burrell's failure to offer the testimony of Dr. Webb on Contentions 66 (Sabotage) and 67 (ATWS) -- the very basis for his admission as a party to this proceeding -- warrants the dismissal of Mr. Burrell as a party, as well as his contentions 66 and 67. In an analogous 4 situation, the Appeal Board considered a motion to dismiss an intervening party from the proceeding because the intervenor had changed his residence and moved beyond close proximity to the nuclear power plant -- the basis foi- his interest 4

and standing as a party. Gulf States Utilities Co. (River i

Bend Station), ALAB-358, supra. In that case, the Appeal Board held that, taking into account the intervenor's loss of standing and his failure to assume a significant partici-pational role in the proceeding, sufficient grounds existed to dismiss .4- from the proceeding.

In the present case, it is clear that but for the promise to present Dr. Webb as a witness on Contentions 66 and 67, Mr. Burrell would not have been admitted as a party in the proceeding. Mr. Burrell's failure to present Dr. Webt's testimony constitutes, using the words of the Appeal Board, "a failure to assume a significant participational role in the proceeding" (Id., 4 NRC at 560), and places Applicants and the NRC Staff in the position of litigating issues with-out an adversary.

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Conclusion For the foregoing reasons, Mr. Lawrence Burrell should be dismissed as a party to this proceeding, and his 1 Contentions 66 (Sabotage) and 67 (ATWS) also should be dis-missed as issues in controversy.

Dated at Tulsa, Oklahoma, this 13th day of October, 1978.

Respectfully submitted,

,c4s f fy < !{

,-' oseph Gallo

- I /M -

Glenn(E. Nelson (j i 1..

(]g A' f' < ' lll ll l/

Paul M. Murphy ISHAM, LINCOLN & BEALE *'/

1050 17th Street, N.W. Attorneys for Seventh Floor Applicants Washington, D.C. 20036 (202)833-9730 One First National Plaza Suite 4200 ,

Chicago, Illinois 60603 (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, Joseph Gallo, one of the attorneys for Public Service Company of Oklahoma, certify that copies of "Appli- i cants' Motion To Dismiss Lawrence Burrell As A Party To These 1 Proceedings" have been served in the above-captioned matter j by hand delivery to the Members of the Licensing Board, L. Dow i

Davis and Joseph Farris and by United States mail, postage prepaid, to the remaining parties on the service list, this 13th day of October, 1978:

Sheldon J. Wolfe, Esq. l Atomic Safety and Licensing Board Panel United States Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Frederick J. Shon Atomic Safety and Licensing Board Panel United States Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Paul W. Purdom Director, Environmental Studies Group l Drexel University l 32nd and Chectnut Streets Philadelphia, Pennsylvania 19104 L. 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 Enterpriac Building Tulsa, Oklahoma 74103 l

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Andrew T. Dalton, Esq.

• 1437 South Main Street 4 Room 302 i Tulsa, Oklahoma 74119 4

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 Mr. Maynard Human General Manager Western Farmers Electric Cooperative P.O. Box 429 Anadarko, Oklahoma 73005 Mr. Gerald F. Diddle  ;

General Manager Associated Electric Cooperative, Inc.

P.O. Box 754 Springfield, Missouri 65801 Mr. Lawrence Burrell l Rt. 1, Box 197 Fairview, Oklahoma 73737 Dr. M. J. Robinson l Black & Veatch P.O. Box 8405 Kansas City, Missouri 64119

..s,*

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 Tulsa, Oklahoma 74102 DATED: October 13, 1978 hw/o d ' / .< t 7

f / Joseph Gallo

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