ML20204B981
| ML20204B981 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 10/26/1978 |
| From: | Efros M, Farris J, Woodard J GREEN, FELDMAN, HALL & WOODARD |
| To: | |
| References | |
| NUDOCS 7811150232 | |
| Download: ML20204B981 (14) | |
Text
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UNITED STATES OF AMERICA j
NUCLEAR REGULATORY COMMISSION g@
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of the Application of
)
Public Service Company of Oklahoma,
)
Associated Electric Cooperative, Inc.
)
and
)
Western Farmers Electric Cooperative
)
Docket Nos.
)
STN 50-556 (Black Fox Units 1 and 2)
)
STN 50-557 INTERVENOR LAWRENCE BURRELL'S RESPONSE TO APPLICANT'S MOTION TO DISMISS Intervenor Lawrence Burrell responds to the Appli-cant's Motion to Dismiss him and contentions sixty-six (sabotage) and sixty-five (ATWS) from these proceedings by assuring the Atomic Safety and Licensing Board that he is actively participating in the licensing hearings process through his counsel, Green, Feldman, Hall &
Woodard, of Tulsa, Oklahoma (Affidavit attached), and did timely pre-file expert testimony regarding conten-tions sixty-six and sixty-five.
Intervenor Burrell intends to continue participating in these hearings and offering testimony on the issues raised by him and recog-nized by the Board as important enough to allow him to intervene in this matter.
Public Service Co. of Okla-homa, et al.,
(Black Fox, Units 1 and 2), 5 NRC 657, 660-61 (1977).
Mr. Burrell was unable to be physically present at the hearings due to an illness, however, he was represented by counsel.
781115 6 A32)
A Secondly, Applicants waited an inordinately long period of time to file this Motion to Dismiss.
If the Applicants feel aggrieved because Dr. Richard Webb will not be testifying, they were made aware of that fact when i
testimony was pre-filed on September 25, 1978, nor.are they precluded from calling Dr. Webb to testify as a rebuttal witness.
This Motion should have been filed, if at all, j
approximately one month ago, not on October 13,'1978, once the hearings had begun and after Intervenor Burrell had gone to considerable expense and effort to bring to the Board's attention testimony from expert witnesses on sabotage and ATWS.. Applicant's Motion is quite untimely and therefore unfair.
Mr. Burrell, having limited financial resources and being informed that the intervenor, Citizens Action for Safe Energy (C.A.S.E.), would be utilizing the services and testimony of MHD Technical Associates, chose to engage MHB to provide expert testimony for his two contentions since these experts would already be in Tulsa, and thereby al-leviate the financial burden of bringing Dr. Richard Webb to Tulsa for the hearings.-
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The Board is urged to deny the Applicant's Motion in i
total.
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Argument and Authorities l
The Applicants, in support of-their argument to' dismiss Mr. Durrell and the two contentions he raised (66 --
sabotage and 65 -- ATWS). initially call the Board's atten-
- tion;to Consumers Power Co. (Midland Plant, Units 1 and 2),
6 AEC 331, 332 (1973); consumers Power Co. (Midland Plant, Units 1 and 2), 1 NF.C 473,-476 (1975); and Northern States Power Co. '(Prairie Island Nuclear Generating Plant, Units 1 and 2), 2 NRC 390, 393 (1975).
The Applicants have cor-rectly stated the law of these cases.
However, the facts in j
those cases are simply not analogous to the facts of this j
1 instant case'and therefore those cases are not control-i
- ling.
1 In the Consumers Power Co. cases, the Atomic Safety-and Licensing' Appeal Board noted that the intervenors in that matter (hearings to determine if a construction permit should issue) had not followed Commission rules, had offered little direct testimony at the hearings'and had filed inadequate or no findings oof fact and conclu-I sions of law after being instructed to do so by the Atomic ~ Safety and Licensing. Board.
In the Northern N
States. Power Co. case, the 'intervenor, Mr. Gadler, was dismissed'from participation in the matter.
The Board dismissed him because he did not discuss the issue of tube integrity at oral argument; lua did not participate
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in the proceedings on remand and he did not originate the tube integrity issue in the first place (the issue on which his intervention was granted).
The Board found his participation in the matter to be nil and found that the NRC staff and other intervenors would adequately contribute to the record regarding tube integrity, so the Board dismissed him as an intervenor.
In the instant case, Mr. Burrell has vigorously participated in the instant hearings.
He was the one who brought the sabotage and ATWS contentions to the Board's attention and was granted the privilege of inter-vening.
Unlike the situation in Northern States Power Co., if Mr. Burrell is dismissed, there is not anyone else to continue adequately pressing the two contentions he raised.
Secondly, he has gone to the trouble and expense of engaging legal counsel to represent him be-fore the Board, and experts to prepare direct testimony and travel to Tulsa to testify at the hearings.
Mr.
Burrell intends to submit findings of fact and conclusions of law at the conclusion of the hearings, he has complied with the Commission's rules, and will continue to do so.
Applicants cite Gulf States Utilities Company (River Bend Station, Units 1 and 2), 4 NRC 558 (1976), as analo-gous to the instant case.
This simply is not the case.
The facts are quite different and Applicants have taken out of context and improperly quoted the Appeal Board 's language in the Gulf States case on page five of their Motion to Dismiss.
The correct language in the Gulf States case is, "Where, as here, a change of residence to an area not in proximity to the reactor is coupled with a virtual failure on the part of the intervenor to have assumed a significant participational role in the proceeding, it is difficult to discern a useful purpose to be served in allowing the intervention to continue."
Id., at 4 NRC 560.
In Gulf States, the intervenor, William Pozzi, apparently moved from Louisiana to California and could not be contacted; par-ticipated no more than minimally in the proceedings; did not file findings of. fact and conclusions of law following those hearings, and'did not file an appeal from tha Board's decision nor file a brief in support of the State's appeal.
Once again, in contrast, Mr. Burrell has actively parti-cipated in the hearings to the extent of the contentions he put forth to the Board and under which he was granted intervenor status, and intends to continue playing an active role.
The remainder of Applicant's argument and authorities are no different than the former.
They attempt to jam a square peg in a round hole by citing administrative
-decision law and then applying the facts in the instant case to the cited law when in reality the facts in the instant case are simply and clearly not synonymous or analogous to the facts upon which the cited law was based.
Applicants are citing cases out of context.
Finally, the Applicants argue that Mr. Burrell vas granted permission to intervene on the basis of Dr. Febb testifying for Mr. Burrell on contentions sixty-six and I
sixty-five.
The Board authorized Mr. Burre11's intervention on the basis of the validity of his contentions, not on the basis of a particular expert or personality.
Having taken into account the above factors, the Board finds that participation by this petitioner will be of value in two areas.
The basis for this is that these areas have not been raised as contentions by the currently admitted Intervenors and that this petitioner may well be able to present evidence in these areas that might assist in developing a sound record for decision.
Further, neither area would tend to enlarge unduly the issues in the proceeding or cause an undue delay in this cause.
The two issues the Board considers appropriate for intervention by Mr. Burrell are the areas of anti-cipated transients without scram (. TWS), and sabotage.
A In the Board's view, the presentation of testimony in this area by Dr. Webb might be of assistance in de-veloping the record herein.
The Board therefore is admitting two (2) new issues in controversy.
Public Service Co. of Okla., 5 NRC 657, 660 (1977).
For financial reasons, Mr. Burrell has engaged another expert.
Does the Applicant contend that only Dr. Webb is qualified to give testimony on the contentions in issue?
Even the Appeal Board, which reviewed the Licens-ing Board's decision regarding Mr. Burrell's interven-tion, although focusing more directly on Dr. Webb's - -
value as a witness, suggests that the basis for intervention was in-fact the contentions raised.
Given Dr. Webb's educational and vocational background, we can scarcely quarrel with the Licensing Board's assessment of the potential value of his testimony.
Nor can we say that an abuse of discretion was involved in that Board's implicit determination both (1) that the two new safety issues raised by Mr.
Burrell warranted scrutiny in this proceeding and (2) that that scrutiny should take place in an adversary context.
Accordingly, we uphold the Board's rulings as to the Burrell petition.
Public Service Co. of Okla.,
5 NRC 1143, 1149 (1977).
Certainly the Board will take into account the credibility and-capability of expert witnesses.
The written testimony regarding contentions sixty-six and sixty-five was submitted under the designation of Citizens Action for Safe Energy
(<C. A.S.E.), however, this designation was an error and should not be held against the intervenor, Mr. Burrell.
The testimony on these two contentions was collected at his instructions, not at the direction of or on behalf of C.A.S.E., and this testimony was prepared by MHB Asso-ciates in Palo Alto, California, and mailed to those persons and entities on the Certificate of Service list directly from Palo Alto and prior to our review, due to the necessity of meeting the September 25th deadline; and.therefore, we were unable to catch the error.
Conclusion In conclusion, Intervenor Burrell, has actively participated in these proceedings every step of the way since granted permission to intervene.
He has put forth expert testimony to assist this Board in arriving at an informed decision regarding the contentions he raised, and intends to continue to do what is proper to aide in this proceeding.
Applicants cited some language from the Consumers Power Co. case as follows,
. the right of partici-pation in an administrative proceeding carries with it the obligation of a party to assist in ' making the system work' and to aid the agency in discharging the statutory obli-gations with which it is charged."
Although the Appeal Board directed those comments to the intervenors in that particular case, surely those words should and do apply to all parties to a proceeding.
Consumers Power Co. (Midland Plant, Units 1 and 2), 6 AEC 331, 332 (1973).
The filing of this untimely Motion by the Applicants surprises the parties and the Board and hardly leads to an orderly review of the substantive matters at hand.
Again, Applicants were aware of the testimony to be given regarding the two subject contentions well in advance of the hearings and their October 13th Motion and could have filed their Motion in a timely fashion.
This type of tactic does not "make the system work".
It subverts the hearing proceso and abould not be countenanced by this Board.
For the foregoing reasons, the intervenor, Lawrence Burrell, urges this Board to deny Applicant's Motion to J
4 Dismiss ~in total.
Respectfully submitted, Mb W
Maury Ef os i
a ij ephfR. Farfis W
Y JyhnR. Woodard, III 4
Attorneys for the Intervenor, Lawrence Burrell GREEN, FELDMAN, HALL & WOODARD 816_ Enterprise Building Tulsa, Oklahoma.74103 (918) 583-7129 i
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J
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of the Application of
)
Public Service Company of Oklahoma,
)
Associated Electric Cooperative, Inc.
)
and
)
Western Farmers Electric Cooperative
)
Docket Nos.
)
STN 50-556 (Black Fox Units 1 and 2)
)
STN 50-557 AFFIDAVIT OF LAWRENCE BURRELL I, Lawrence Burrell, of Route 1, Box 197, Fairview, Oklahoma, state that:
1.
I am an intervenor in the above-styled action; 2.
I have engaged the law firm of Green, Feldman, Hall
& Woodard of Tulsa, Oklahoma, to represent me in the above-styled action; and prior to that, I had engaged Andrew T.
Dalton of Tulsa, Oklahoma to represent me; 3.
I have engaged Richard Hubbard and Gregory Minor of MHB Consultants to give expert testimony regarding con-tentions 66 and 65 respectively; 4.
I have been ill and therefore unable to personally attend the hearings before the Atomic Safety and Licensing Board; 5.
Due to my limited financial resources, I consulted with Carrie Dickerson and MHB Associates and decided to use the MHB experts instead of Dr. Richard Webb, since the MHB experts were going to be in Tulsa to testi-fy on behalf of Citizens Action for safe Energy; and
6.
I intend to continue to fully participate in the above-styled action to the full limits of my inter-venor status.
Respectfully submitted, hA).'-teu.s1 Seet>ktO 3
Lawre'hce Burrell l
STATE OF OKLAI!OMA
)
)
ss.
COUNTY OF TULSA
)
Subscribed and sworn to before me this
~2-I day of o r.T'O o d 1978.
/ -ckt' s<mbsf Notary Public G
My commission expires:
f-2 2 -7 '/
/
(SEAL).,'
.1 i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of.the Application of-
)
Public Service Company of Oklahoma,
)
Associated Electric Cooperative, Inc.
)
[
and
)
Western Farmers Electric Cooperative
)
Docket Nos.
)
STN 50-556 (Black Fox Units 1 and 2)
)
STN 50-557 i
CERTIFICATE OF SERVICE I, Joseph R. Farris, one of'the attorneys for Citizens Action.for Safe Energy (C.A.S.E.), certify that copies of "Intervenor Lawrence Burrell's Response to Applicant's Motion to Dismiss" and " Affidavit of Lawrence Burrell" have been served in the above-captioned matter on the following b*j Uniped States mail, postage prepaid, this J45/4 day of 0cklJe.r2
,1978.
Sheldon J. Wolfe, Esq.
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 Drexel University 32nd'and Chestnut Streets Philadelphia, Pennsylvania 19104 L.
Dow Davis, Esq.
Office of the Executive Legal Director United States Nuclear Regulatory Commission Washington, D.C.
20555 i
r
,e
T
+
, Andrew T.
Dalton, Esq.
Attorney at Law-1437 South Main Street Room 302 t
Tulsa, Ok16homa 74119 Mrs. Ilene Younghein 3900 Cashion Place Oklahoma City, Oklahoma 73112 Mrs. Carrie Dickenson Citizens Action for Safe Energy, Inc.
P.O. Box 924
.Claremore, Oklahoma 74104 1
Joseph Gallo, Esq.
Isham, Lincoln & Beale
,7 hingt n DC 50b36
-Michael I. Miller, Esq.
Isham,. Lincoln & Beale
.One First National Plaza, Suite 4200 Chicago, Ill.
60601 Paul M. Murphy, Esq.
Isham,-Lincoln & Beale-One First National Plaza, Suite 4200 Chicago,,Ill.
60603 Mr. Maynard' Human General Manager Western. Farmers Electric Cooperative P.O. Box.429 Anadarko, Oklahoma 73005 Mr.' Gerald F. Diddle Associated Electric Cooperative, Inc.
P.
O.' Box 754' Springfield, Missouri-65801 Mr. Lawrence Burrell Rt. 1, Box 197 Fairview, Oklahoma 73737 I
Dr.:M..J. Robinson Black &-Veatch-.
..P. O.
Box:8405 i
~ Kansas City, Missouri 64114 i
e Secretary (Orig. and 3)
Attn:
Chief, Docketing & Service Section United States Nuclear Regulatory Commission Washington, D.
C.
20555 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 4[c-/d,1978.
Apl J depK R. Far'ris
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