ML20197C487
| ML20197C487 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 10/31/1978 |
| From: | Murphy P ISHAM, LINCOLN & BEALE |
| To: | |
| References | |
| NUDOCS 7811210107 | |
| Download: ML20197C487 (12) | |
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4 NRC PIEUC DOCinfENT R009
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UNITED STATES OF AMERICA 2
4 NUCLEAR REGULATORY COMMISSION l
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of the Application of
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Public Service Coreany of Oklahoma,
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Associated Electric Cooperative, Inc.
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Docket Nos.
1 and
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STN 50-556 i
Western Farmers Electric Cooperative
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STN 50-557 j
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1 (Black Fox Uni".s 1 and 2)
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I APPLICANTS' MOTION TO SUPPLE-HENT THE RECORD ON APPEAL i
l Now come Public Service Company of Oklahoma, j
Associated Electric Cooperative, Inc. and Western Farmers Electric Cooperative
(" Applicants") and respectfully move this Board to supplement the record of the environmental and I
site suitability hearings by admission of the following two documents l
1.
Findings of Fact, Conclusions of Law and Order of the Oklahoma Water Resources Board, dated July 11, 1978 2.
Permit to Appropriate Stream Water, issued by the Oklahoma Water Resources Board, dated July 11, 1978 Copies of these documents are attached hereto as Attachments 1 and 2, respectively.
j As grounds for this Motion, Applicants direct this I
Board's attention to the Order of the Atomic Safety and I
Licensing Board of October 26, 1978, a copy of which is 1
1 l
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?S11210l03 C,
, attached hereto as Attachment 3.
Supplementing the information provided in Attachment 3, Applicants state that Attachment 2 is the permit referred to in footnote 3 of Attachment 3 and that Attachment 1 is the Findings of Fact, Conclusions of Law and Order supporting such permit. When Applicants filed their Motion to Supplement the Record pursuant to Board i
Order of November 1, 1977, counsel was nct in possession of the permit (Attachment 2).
Consequently, we mcved the admission of the Findings of Fact, Conclusions of. taw and Order for issuance of the permit, as well as the related correspondence. The Atomic Safety and Licensing ", card then informed Applicants it would defer rullnc un such motion until Applicants supplied the actual permit. Thereupon l
Applicants supplied the permit and the Board proceeded to i
rule on the Motion as reflected in Attachment 3.
I The relevancy of Attachments 1 and 2 to this appeal is also stated in footnote 3 of Attachment 3.
Supple-i f
menting this basis of relevancy, Applicants state that the permit and its supporting Findings of Fact, Conclusions of Law and Order provide probative evidence in support of paragraphs 39-47 of the partial Initial Decision Authorizing Limited Work Authorization.
l App 3icants further state that no party would he prejudiced by the admission into the record on appeal of the permit and its supporting Findings of Fact, Conclusions of Law and Order which Applicants were first ordered to supply i
. by the Atomic Safety and Licensing Board on November 1, 1977, but have effectively been precluded from supplying by the above-described events until now.
DATED: October 31, 1978 Re tfull Eubmitted, l'
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Paul M.
Murp y One of the Attorneys
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for Applicants l
ISHAM, LINCOLN & BEALE One First National Plaza j
Suite 4200 j
Chicago, Illinois 60602 i
(312) 786-7500 i
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UNITED STATES CF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC S AFETY AND LICENSING APPEAL BOARD In the Matter of the Application of
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Public Service Companv of Oklahema,
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Associated Electric Cooperative, Inc.
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Docket Nos.
and
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STN 50-556 Western Farmers Electric Coocerative
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STN 50-557 4
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(Black Fox Units 1 and 2)
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CERTIFICATE OF SERVICE t
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I, Paul M.
Murphy, one of the attorneys.or j
Public Service Company of Oklahomc, certify that copies.
of " Applicants' Motion To Supplement The Record On Appeal" have been served in the above-captioned matter on the following by United States mail, postage prepaid, this 31st day of October, 1978:
Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeal Board United States Nuclear Regulatory Commission Washington, D.C.
20555 Dr.
W.
Reed Johnson Atomic Safety and Licensing Appeal Board Panel United States Nuclear Regulatory Commission Washington, D.C.
20555 Jerome E.
Sharfman Atomic Safety and Licensing Appeal Board Panel United States Nuclear Regulatory Commission Washington, D.C.
20555 Sheldon J. Wolfe, Esq.
Atomic Safety and Licensing Board Panel United States Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Frederick J.
Shen Atomic Safety and Licensing Board Panel United States Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Paul W.
Purdom J
Director, Environmental Studies Group J
Drexel University l
32nd and Chestnut Streets Philadelphia, Pennrylvania 19104 1
1,
? L.
Dow Davis, Esq.
Office of the Executive Legal Director United States Nuclear Regulatory Commission Washington, D.C.
20555 Andrew T.
Dalton, Esq.
1437 South Main Street Room 302 Tulsa, Oklahoma 74119 Joseph R.
Farris, Esq.
1 Green, Feldman, Hall & Woodard Suite 816 Enterprise Building Tulsa, Oklahoma 74103 Mrs. Ilene Younghein 3900 Cashion Place i
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 Safe **; 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 Joseph Gallo, Esq.
Isham, Lincoln & Beale 1050 17th Street, N.W.
Nashington, D.C.
20036 Mr. Maynard Human General Manager Western Farmers Electric Coc perative P. C.
Box 429 Anadarko, Oklahoma 73005 e
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Mr. Gerald F.
Diddle General Manager Associated Electric Cooperative, Inc.
t P.O. Box 754 4
Springfield, Missouri 65801
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i Mr. Lawrence Burrell j
Rt. 1, Box 197 Fairview, Oklahoma 73737 g
I Dr. M. J.
Robinson Black & Veatch l
l P.O.. Box 8405 4
l Kansas City, Missouri 64114 i
Mr. Vaughn L. Conrad Public Service Company of Oklahoma P.O. Box 201
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Tulsa, Oklahoma 74102 Mr. T.
N. Ewing Public Service Company of Oklahoma P.O. Box 201 Tulsa, Oklaheta 74102 DATED: October 31, 1978 n
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Paul M.
Murphy /
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to FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER CF THE OKLAHOMA WATER RESCURCES BOARD IN THE MATTER OF THE STREAff WATER APPLICATION OF
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Public Service Company of Oklahoma, P. O. Box 201, )
Tulsa, Oklahoma, 74102, for 50,000 acre-feet of
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water annually diverted from the Verdigris P.iver,
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Stream System 2-15, at a rate not to exceed 54,000 )
NO'77-141 gallons per minute. The Point of Diversion is to Filed 9-19-77 be located in the NWi SE5 SEk of Section 14, Two.
19N, Rge.16EIM, Rogers County. The applicant
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proposes to use the water for industrial use
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located in Sections 13 and 24, Twp.19N, Rge.16EIM.)
Rogers County.
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FINDINGS OF FACT l
Comes now the Oklahoma Water Resources Board and makes the following Findings of Fact as being supported by substantial evidence before the Board:
1.
On Septemter 19, 1977, applicant, Public Service Comoany of Oklahoma, filed an application in the amount of 45,000 acre-feet per year for stream water for industrial purposes from the Verdigris River and Oologah Reservoir.
2.
On Noverter 17, 1977, an amended application was received by the Board increasing n
the amount of water to be appropriated to 50,000 acre feet of water per calendar G
year. The source was changed from the Verdigris River and Cologan Reservoir to the Verdigris River only. The area of the use was enanged frca the SEh NEh NES of Section 24, Two.19N, Rge. IEEIM, to Sections 13 and 24. Tsp.19N, Rge.16EIM, Pogers County.
3.
A notice was prepared as required by law and duly published once a week for two consecutive weeks, December 8th and 15th,1977, in a newspaper of general circu-lation, published within the county of the point of diversion (Rogers County),
and in the irrediate downstream county (Wagoner County), and in the downstream counties of Haskell, LeFlore, Muskogee and Sequoyah. Said publication gave notice of a hearing to be held on the applicatien on Tuesday,' January 17, 1978. This notice was in error as to the acnunt requested for apprcpriation by stating the 45,000 acre-feet from the original application instead of tne 50,000 acre-feet asked for in the amended application.
i 4.
A corrected notice as to the amount of water requested was crepared by the Board and duly published for two consecutive weeks, January 12th and 19th,1973, in the newspapers listed in No. 3 above. Said publication gave notf;e of a hearing to be held on the application on Wednesday, February 1,1973, at 9:00 A.M. at the Board's offices.
5.
The Oklahoma Water Resources Scard received letters of protest from numerous individuals prior to the hearing. On January 13, 1973, the Board received a l
protest from the Citi: ens Acticn for Safe Energy predicated upcn the grounds that i
unappropriated water was not available; that the proposed use of the water was l
Q not a beneficial use and that the proposed use would interfere with domestic and j
existing appropriative uses.
6.
No one appeared for the hearing on January 17, 1978, scheduled for the original application.
7.
On February 1,1978, the hearing cemenced as scheduled on the amended ao?lication with Amalija Hodgins, Assistant Attorney General, for the State of Oklancma, acting as Hearing Examincr and Terry Thurman of the staff assisting N. Hodgins. Due to adverse weather ccnditions this hearing was continued until february 23, 1973.
1 ATTACHME'lT 1 g
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8.
The hearing resumed on February 23rd and continued through February 24th,1978 in the offices of the Oklahoma Water Resources Board. The applicant and pro-
' g-testants were both represented by legal counsel. Numcrous individuals presented oral statements and exhibits were introduced. All the evidence presented at the hearing has been made a part of the hearing record.
Based upon its own knowledge, expertise and experience together with a consideration of all the evidence presented including briefs submitted by counsel and proposed findings of fact, conclusions of law and order submitted by counsel, the Board makes these additional Findings of Fact.
9.
Unappropriated water is available in the amount applied for by the applicant l
based on the average annual flow at the point of diversion.
i10. The protestant (Citizens Action for Safe Energy),* presented evidence arguing that water was not available from Oologah Reservoir; however, such position did not take into account the substantial flows contributed by the Caney River and Bird Creek to the Verdigris River above the proposed point of diversion.
- 11. The Oklahoma Water Resources Board allocates water for stream water permits based on the average annual flow and in doing so fully recognizes that during certair periods of time, the total amount of water requested may not be available.
The issuance of' a permit does not guarantee the applicant that the water will be available to satisfy the permit on an average annual basis.
- 12. The United States Geological Survey stream flow gage located on the Verdigris River near Inola reports an average annual flow of 2,041,000 acre-feet per year based O
on the period of record of 1944 to 1970. The Oklahoma Water Resources Board has appropriated a total of 443,964 acre-feet per year from the Caney River Stream System, the Bird Creek Stream System and the Verdigris Stream System.
- 13. Navigation water was considered in determining whether water was available for appropriation.
14 The argument of protestant, that nuclear electric power generation is a wasteful or inef ficient use of~ water, is not substantiated by the evidence before the Board.
Beneficial use is the basis, the measure and the limit of the right to use water of the streams of this State. In the waste context of the Oklahoma Statutes water placed to a beneficial use is not termed " waste" and water for electric power generation is considered and recognized as a beneficial use of water.
- 15. The proposed use of water by the applicant will not necessarily interfere with existing appropriative uses. A condition is placed on all stream water permits issued by the Board protecting prior rights and domestic uses.
- 16. The potential and present surface water yields from the six counties in Kansas that contribute to the flow of the Verdigris River were oetermined to be 422,400 acre-feet per year. This infomation was taken from the Kansas State Water Plan Studies Long-Range Water Supply Problems Phase 1, by the Bureau of Reclamation in cooperatier with the Kansas Water Resources Board, October 1974.
I7. The protestant states that the City of Collinsville will experience a water supply shortage in the near future if the Board reduces their present allocation from bq Cologah Reservoir. fhis is irreluant to the instant applicant because the pro-e posed action by the Board is predicated upon the cities' failure to use the water authorized by their stream water permit and has nothing to do with the availability 4
f of water.
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- 18. The protestant also cited that the City of Broken Arrow has experienced water prob-lems which is likewise deemed irrelevant to this proceeding, and in any event the evidence introduced at the hearing indicated only a lack of system capacity and not a shortage of water.
- 19. During the hearing,the applicant introduced a copy of a contract between the City of Tulsa and Public Service Company of Oklahoma for the amount of water necessary to operate the proposed generation plant. The Board has not considered this con-tra:t in the determination of availability of water for appropriation; however, the Board does recognize that this contract will provide the applicant with water from storage when the water at the diversion point would be needed for prior rights
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- 20. The protestant questions the sufficiency of the application in that the facility is presently owned by Public Service Company of Oklahoma, Western Farmers Elec.
trical Cooperative (of Oklahoma) and Associated Electric Cooperative (of filssoi..1),
the later two of which are not applicants, it is the Boards potition that this is not germane to the issue at this time.
- 21. The protestants claim that the applicant 'has failed to demonstrate safety require.
ments for the total system is irrelevant to the issue before this Board, at this time.
CONCl.USIONS OF TAW i
The Oklahoma Water Resources Board find: as a matter law that; i
1.
The applicant, Public Service Company of Oklahoma, has complied with the provision of 82 0.S. Supp.1972, Secti~i 105.9 in filing this application.
2.
Proper notice was published and a hearing held pursuant to 82 0.5. Supp.1972, Section 105.11, 3.
Unappropriated water is available and the intended Industrial Use is a beneficial use under 82 0.S. Supp.1972, Section 105.12, 4.
The Board has jurisdiction over this matter under the provisions of 82 0.S. Supp.
1972, Section 105.
t
> b BOARD ORDER IT IS HEREBY ORDERED by the Oklahoma Water Resources Board, uoan consideration j
of all cremises, that the application for a permit, No. 77141, be approved in -
1 the amount of 50,000 acre-feet of water per year with the condition that down-stream prior rights and domestic uses not be impaired by this diversion of water.
I Done this_ lith day of July
,1978, in regular open meeting of the OKl.AHOMA WATER RESOURCES BOARD.
OKLAH
[ATER RESOURCES BOARD f
AV Cerald E. dorilli, Gnairman i
ATTEST:
W. Earl Walker,
. Vice-Chainnan for L.
Males. Secretary (SEAL)
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- - - - - - - -~~
( JLAll0MA WATER RESOURCES DondD c
y l'Eful!T TO APPROPRIATE MitEA AI W ATER stream sntem verdigrit River Nurnher 2-15 county Rogers County t
P77-141 Apphcenan Na _ 77-141 Dee af F has Seotember 19, 1977 p.,m,t go.
1 i
TFils IS TO CERTIFY that the OKLAllOM A WATER RF. sol'RCES DOARD han held a puhhe hearies on the i
Anpheauen nt Pu51f c Service Comoany of Oklah0m/t o hnse saa,m i, P. O. Anx 201. Tulsa. Oklahoma 74102 for a P,,m;i to appropriate 90.000 acre feet of water per calendar vear. for the purpew of ___ industrial use located in Sections 13 & 24. Two.19N. Rae 16EIN Rogers County b
Water to be diverted from Vordfgrit River NW SEh SEk Section 14. Two.19Fl, RQe.16&lM g,.
D.
gre f'mt_r n e 's at a rate not to esceed 44.000 gallons per minute.
THE APPLICATION IS HEREBY APPROVED and the apphcant is autharised to procad with the construction of the proiect in comphance with the above described appbcation wesen as made a part herect and subject to the fol.
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lowing terms, conditions and timitations:
- i. Providino erfor richts and domestic uses downstream are not affected by this r
Afvertinn nf m tpr.
- 2. Work on the project must he started hv the ll th day nf Jul y 1980,43a ch, applicant ha. uniin theil th day of July 1983. to complete the project 1 L*pon completion of the proiect sophcant must nie with the Esecutive Director of the Oklalwma Water Resources Board a NOTICE OF COMPLETION OF PROJECT in the manner prescribed.
4 in order to keep this f ereiit in full force and effect and retain the PRIORITY DATE. a WATER (JSE REPORT must be filed each year on forms turnished by the Board.
$ Acceptance of this Permit by applicant shall be an acknowledgment 'ael agreen.ent that app 6 cant wdl tornply with all the terms, conditions and hmitations embodied in this Permit.
DATED this l l th det of July 1970 1
OKLAIRMfA WATER RESOURCES DOARD Y
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AWMot'xukdux James R. Barnett, Acting Executive Director r s. t.... n. t.
Application Recel;:ts 82 0.S. Supp. 1972 Compl. of Proje:t P.Ev. 0wRn tJ on4 sw ATTACHMENT 2 J
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UNITED STATES CF AMERICA C CI2 h,,l g '
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'""INE" BEFCRE THE ATCMIC SAFETY AND LICENSING BOARD
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'%id In the Matter of
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PUBLIC SERVICE CCMPANY CF OKLAnCMA,
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Cocket Nos. STN 50-555 ASSOCIATED ELECTRIC COOPERATIVE, INC. )
STN 50-557
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and WESTERN FARMERS ELECTU C C00PERAi!VE, )
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i INC.
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(Blad Fox Station Units 1 and 2)
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l ORDER On July 28, 1978, Applicants filed a Motion To Succlement The i
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Record Pursuant To Board Order Uf November 1,19777 Therein Applicants requested that we admit into evidence three documents as 2/
Exhibits 27A, B and C and stated that, when the clerical task of issuf rg
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l the water pemit had been C0mpleted, a motion would be filed requesting I
that said permit be admitted into evidence. Cn August 2,1978, Intsrvenors j
The Order of November 1,1977, while femally closing the rected in 1/the instant proceeding, stated that, as soon as possible, Applica :ts should l
furnish cocir.s of the Stream Water Permit as accroved by the Oklanoma Water Resources Board and that said document would be admitted into evidence as i
l Acplicants' Exhibit 27. We assumed that, if the C'nRB issued a semit to
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withdrsw.ater, said permit would be issued shortly af ter No. emeer 1,1977.
2] These documents vare identified as follows:
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Findings of Fact, Conclusions of Law and Crder of the a.
Oklancm3 Water Resources Board, Letter to Public Service Ccm;any of Oklancma frcn the b.
Cklahcma Water Resources Board.
Letter to one of Applicants' attorneys fecm Public C.
9 rvice C0mpany of Oklahctra.
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l ATTAC::MD;T 3 4
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s responded opposing the gran g
the NRC Staff respded in f ave However, frior to the fili issued on July r
24, 1978 the Part Work Authorization, LSP 78 2 I
6, 8 instant Motion sin e. a jurisdiction to act thereon uy s
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Dated at Bethesda, Maryland Cha
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this 25th day of October 1978.
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3/have filed an appliTherein, at fin which is pending.", cation for a permitr ah, conveyed to PS0", tha t "
that *.
Tulsa h-water have to be worked out.
wntle deta required to have every pe ack Fox", a t in hand be-i
.