ML19322A175

Applicant'S Brief in Reply to Intervenors L Burrell,I Younghein & Citizens Action for Safe Energy'S Appeal Brief. Asserts That Intervenors Failed to Show ASLB Erred in Its Decision.Certificate of Svc Encl

ML19322A175
Person / Time
Site:	Black Fox
Issue date:	12/15/1978
From:	Bielawski A, Mark Miller, Murphy P ISHAM, LINCOLN & BEALE
To:
Shared Package
ML19322A174	List: ML19322A173 ML19322A175
References
NUDOCS 7901040199
Download: ML19322A175 (88)

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UNITED STATES OF AMERICA y\

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. ) Docket Nos.

and ) STN 50-556 Western Farmers Electric Cooperative } STN 50-557

)

(Black Fox Units 1 and 2) )

APPLICANTS' REPLY TO INTERVENORS' APPEAL BRIEF Submitted on Behalf of Public Service Company of Oklahoma Associated Electric Cooperative, Inc.

Western Farmers Electric Cooperative By:

Michael I. Miller Paul M. Murphy Alan P. Bielawski Their Attorneys ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 (312)786-7500 DATED: December 15, 1976 790104 O(9q

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TABLE OF CONTENTS Table of Cases, Statutes, Regulations and Other Authorities ................................. v APPLICANTS' REPLY TO INTERVENORS' APPEAL BRIEF . . . . . . . . . 1 I. PROCEDURAL HISTORY ................................ 1 II. INTERVENORS' BRIEF FAILS TO DEMONSTRATE THAT THE LICENSING BOARD COMMITTED ERROR AND IS BASED ON A MISINTERPRETATION OF NEPA ...... 6 A. Intervenors Have Not Demonstrated That The Licensing Board Committed Reversible Error .... 6 B. The Courts And The Commissicn Have Consis-tently Held That The Requirements Of NEPA Must Be Interpreted In Light Of The " Rule Of Reason" .................................... 11

1. The requirements of NEPA are satisfied by a good-faith review of significant envi-ronmental effects of a proposed federal action ...................................... 11

2. NEPA does not require a discussion of insignificant or remote environmental ef-fects ....................................... 14

3. The Supreme Court has held that the rule of reason applies to an agency's re-sponse to matters raised during public par-ticipation in the NEPA process .............. 16

4. The Licensing Board was correct in its substantive judgments ....................... 18

5. The scope of the environmental review required by NEPA depends on the nature of the proposed federal action ................. 19 III. THE RECORD DEMONSTRATES THAT THE ALTERNATIVE OF '~~

DENYING A LICENSE FOR BFS IS NOT WARRANTED ... 21 A. The Licensing Board Correctly Found That The Need For The Electrical Energy To Be Sup-plied By BFS Was Adequately Demonstrated ...... 21

1. Standard of review ...................... 21 i

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2. Solar and wind .......................... 22

3. Forecasted demand for electricity ....... 23 B. The Licensing Board Correctly Determined That The Economic Cost Of An Environmentally Inferior Alternative To BFS Was Irrelevant .... 25

1. The record establishes that BFS is en-vironmentally superior to a coal-fired alternative ................................. 25

2. The Licensing Board was not required to determine the monetary cost of BFS ....... 26

2. Adequate Water Accessible To Applicants Is Available At The BFS Site And The Environ-mental Impacts Of The Consumptive Use Of This Water Is Not A Major Site Suitability Consi-deration ...................................... 27

1. Applicants are adequately assured of sufficient water for use at BFS ............. 27

2. The water under contract with Tulsa is available ................................... 29

3. The impacts of the consumptive use of water at BFS are minimal .................... 33 I'.' . THE RECORD SUPPORTS THE LICENSING BOARD'S FINDING THAT THE ENVIRONMENTAL REVIEW PERFORMED BY THE NRC STAFF, AS AUGMENTED BY THE PID, WAS ADEQUATE ..................................... 36 A. The Impacts On Water Quality From Construc-tion And Operation Of BFS Were Adequately Considered .................................... 36

1. Liquid discharges from BFS will not have a significant adverse impact on the  ;

aquatic environment ......................... 37 i

2. Neither NEPA nor FWPCA require the NRC to attempt to enforce through its licensing procedures water quality laws within the jurisdiction of EPA and state agencies ...... 40

3. The Licensing Board was not required to await final action by EPA and OWRB prior to issuing the PID .......................... 45 1

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B. The Licensing Board Correctly Determined That Applicants' Radiation Monitoring Pro-gram was Adequate And Properly Weighed The Environmental Effects Of Radiation Exposure In The Cost / Benefit Balance ................... 46 C. The Licensing Board Correctly Determined That The Environmental Effects Of The Release Of Raden-222 From Mining Of Uranium Is Negli-gibly Small And Does Not Affect The Cost /

Benefit Balance For BFS ....................... 49

1. The evidence relating to expected radon releases from uranium mining was reliable and probative ............................... 51

2. There is no requirement that on-going studies of environmental issues be completed before issuing an LWA ....................... 52

3. The Licensing Board correctly evaluated the health effects of incremental releases of radon as " negligible" .................... 54

4. The Licensing Board was correct in limit-ing its consideration of radon emissions to 1000 years .................................. 55 D. The Licensing Board Did Not Err In Its Air Quality Findings .............................. 56

. E. Intervenors Have Argued Several Insignificant Matters Which Do Not Warrant Reversal ......... 59 kb. THE BLACK FOX SITE IS SUITABLE FROM A RADIOLOGI-CAL HEALTH AND SAFE 3' STANDPOINT AND THE SAFE SHUTDOWN EARTHQUAXI SELECTED FOR THE SITE IS APPRO?cIATE .......................... 60 VI. THE LICENSING BOARD DID NOT ERR IN INTERPRETING APPLICABLE LAW ............................... 63 A. The Licensing Board Correctly Found That The Certification Requirements Of Section 401 Of FWPCA Had Been Waived ...................... 63

1. Intervenors' interpretation of Sec-tion 401 is contrary to the ple . language of the statute .............................. 65

2. The record shows that Oklahoma failed to act on the request for certification within one year ............................. 68 l

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B. Intervanors Have Failed To Meet Their Burden On Appeal Of Showing That the Licensing Board Erred In Granting Summary Disposition ......... 71 J

C. Recirculation Of The FES Was Not Required Prior To Issuing The LWA .................'..... 73 VII. CONCLUSION ........................................ 73 1

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TABLE OF CASES, STATUTES, REGULATIONS AND OTHER AUTHORITIES Cases Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAS-442, 6 NRC 741 (1977) ....................................... 45 Consumers Power Co. (Midland Plant, Units 1 and 2), CLI-74-5, 7 AEC 19 (1974) ...................... 14, 17 Consumers Power Co. (Midland Plant, Units 1 and 2), ALAS-456, 7 NRC 155 (1978) ..................... 25, 26, 27 Consumers Power Co. (Midland Plant, Units 1 and 2), ALAS-270, 1 NRC 473 (1975) ..................... 9, 72 Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit 2), ALAB-469, 7 NRC 470 (1978) .................... 7 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397 (1976) ............. 9, 19, 21, 72 Gulf States Ut.iities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760 (1977) ............. 50, 52 Kansas Gas and Electric Co. (Wolf Creek Generat-ing Station, Unit No. 1), ALAS-462, 7 NRC 320 (1978) ... 21, 22 Kansas Gas and Electric Co. (Wolf Creek Generat-ing Station, Unit No. 1), ALAB-424, 6 NRC 122 (1977) ... 7, 9 Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973), cert. denieci in 416 U.S. 961 (1974) ........ 12, 15, 16 Long Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831 (1973) ................... 14 Mason County Medical Association v. Knebel, 563 F.2d 256 (6th Cir. 1977) ........................... 15 V

Cases (cont.)

NAACP v. FPC, 425 U.S. 662 (1976) ...................... 59, 60 National Helium Corp. v. Morton, 486 F.2d 995 (10th Cir. 1973), cert. denied in 416 U.S. 993 (1974) .. 12, 13 Natural Resources Defense Council, Inc. v.

Morton,-458 F.2d 827 (D.C. Cir. 1972) .................. 11, 12, 15, 31 New England Coalition on Nuclear Pollution

v. NRC, 582 F.2d 87 (1st Cir. 1978) .................... 73 New York v. Kleppe, 429 U.S. 1307 (1976) ............... 13 Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347 (1975) ................................................. 21 Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3) , CLI-74-32, 8 AEC 217 (1974) ............................................. 43 Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13 (1974) .............................................. 65 Portland Cement Assn. v. Ruckelshaus, 486 F.2d 375 (1973), cert, denied in 417 U.S. 921 (1974) ........ 17 Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2),

ALAB-493, CCH Nuc. Reg. Rep. 130,323 (August 30, 1978) .................................................. 65 Public Service Co. of Indiana, Inc. (Marble Hill Nuclear bl.'erating Station, Units 1 and 2) ,

ALAB-459, 7 NRC 179 (1978) ............................. 21, 22, 36 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503 (1977) .... 15, 19, 20, 42, 43, 44 vi

Cases (cont.)

, Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33 (1977) ..... 33 Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ILAB-388, 5 NRC 640 (1977) ............. 7 Public Service Electric and Gas Co. (Hope Creek Generating Station, Units 1 and 2), ALAB-394, 5 NRC 769 (1977) ....................................... 9 Pucet Sound Power & Light Co. (Skagit Nuclear Power Pro]ect, Units 1 and 2), ALAB- 446, 6 NRC 870 (1977) ............................................. 19 Scientists' Institute For Public Information, Inc. v. AEC, 481 F.2d 1079 (D.C. Cir. 1973) ............ 12, 15, 56 Sierra Club v. Freehlke, 534 F.2d 1289 (8th Cir.

1976) .................................................. 12 Sierra Club v. Lynn, 502 F.2d 43 (5th Cir. 1974),

cert. denied in 421 U.S. 994 (1975) .................... 15, 19 Sierra Club v. Morton, 510 F.2d 813 (5th Cir. 1975) .... 13, 14 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB- 171, 7 AEC 37 (1974) ................... .................... 45 State of Alaska v. Andrus, 580 F.2d 465 (D.C. Cir.

1978) .................................................. 16, 53 Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B and 2B), ALAB-367 5 NRC 92 (1977) ........................................ 42, ..45__

Tennessee Valley Authority (Hartsville Nuclear Power Plant, Units lA, 1B, 2A and 23), LBP-76-16, 3 NRC 485 (1976) ....................................... 42, 45 vii ,

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Cases (cont.)

Tennessee Valley Authority _ (Yellow Creek Nuclear Power Plant, Units 1 and 2),

LBP-78-7, 7 NRC 215 (1978) ............................. 42, 45 Trout Unlimited v. Morton, 509 F.2d 1276 (9th 12, 13, 14, Cir. 1974) ........................... ................. 15, 16 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520 (1973) ..... 33 Vermont Yankee Nuclear Power Corp. v. NRDC, 16, 17, 18 435 U.S. 519 (1978) ....................................

Washincton Public Power Supply System (Hanford No. 2 Nuclear Power Plant), ALAB-ll3, 6 AEC 251 65 (1973) .................................................

Statutes 19 5 U.S.C. S557(b) .......................................

Federal Water Pollution Control Act of 1972, 40, 41, 42, 33 U.S.C. SS1251 ei seq. ...............................

64 Section 101, 33 U.S.C. 51251 ...................... _ 40, 41 Section 303, 33 U.S.C. 51313 ...................... 42 Section 401, 33 U.S.C. S1341 ...................... 63, 64, 65, 66, 67, 68, 69, 70 action 511, 33 U.S.C. 51371(c) ................... 41 59 42 U.S.C. SS2000e-1 et seq. ............................

NationaA Environmental Policy Act of 1969, passim 42 U.S.C. SS 4321 et seg. ..............................

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Statutes (cont.)

Water Supply Act o'f 1958, 43 U.S.C. 5390b .............. 30, 31 82 Oklahoma Statutes 5105.9 ............................ 27 82 oklahoma Statutes 5926.2 ............................ 67 82 Oklahoma Statutes 5926.3 ............................ 67 Kansas-Oklahoma Arkansas River Basin Compact, 82 Oklahoma Statutes $51401 et seg. .................... 32, 33 Regulations 10 CFR 52.104 .......................................... 11 10 CFR $2.714 .......................................... 17 10 CFR S2.720 .......................................... 36 7

10 CFR 52.762(a) .......................................

7 10 CFR S2.762(b) .......................................

10 CFR S2.764 .......................................... 73 18 10 CFR S2.785 ..........................................

19 10 CFR S2.786 ..........................................

46, 48, 49 10 CFR Part 20 .........................................

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10. CFR S20.101(b) ......................................

5,.73 10 CFR 550.10 (e) .......................................

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Regulations.(cont.)

1 10 CFR 550.30(f) .......................................

1, 53 10 CFR 550.35(a) .......................................

1 10 CFR 551. 20 (a) ....................................... .

50 10 CFR 551.20(e) .......................................

11 10 CFR $51.51 ..........................................

64 10 CFR S51.52(b) .......................................

61, 62 10 CFR Part 100, Appendix A ............................

64, 66 40 CFR S123.16(b) ......................................

Other Authorities 42 40 F.R. 60115-60121 (December 31, 1975) ................

50 43 F.R. 15613_(April 14, 1978) .........................

Senate Report No.92-411, 1972 U.S. Cong. 67 and Adm. News, 3668 ....................................

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12/15/78 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMS.ISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL 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) )

APPLICANTS' PIPLY TO INTERVENORS' APPEAL BRIEF 1

PROCEDURAL HISTORY On August 8, 1975, Public Service Company of Okla-homa ("PSO"), acting on behalf of itself and Associated ,

Electric Cooperative, Inc. (" Associated"), filed an Appli-cation for Construction Permits for the Black Fox Station, Units 1 and 2 (the " Application"). As required by 10 CFR 550. 30 (f) and 551. 20 (a) , the Application was accompanied by a sep'. rate environmental report ("ER") consisting of five large volumes. On December 11, 1975, a sixth volume of the ER (entitled " Supplement 0") was filed in response to ques-tions propounded by the NRC Staff. The Application was docketed on December 23, 1975, and thereafter a notice of hearing on the Application and a notice of availability of the ER were published in the Federal Register (41 F.R. 3515 and 3517, January 23, 1976).

In response to the notice of hearing and an amended notice of hearing (41 F.R. 46918, October 26, 1976) published after Western Farmers Electric Cooperative (" Western")

became a co-owner in the proposed Black Fox Station ("BFS"),

various petitions to intervene were filed. (Throughout this Brief, PSO, Associated and Western are referred to jointly as " Applicants.") Mrs. Ilene Younghein, Mr. Lawrence Bur-rell and an organization entitled " Citizens Actica For Safe Energy" (jointly referred to as "Intervenors") were admitted as intervenors in this proceeding by the Atomic Safety and Licensing Board (" Licensing Board") assigned to this proceed-ing.1/

In July 1976, the NRC Regulatory Staff issued a Draft Environmental Statement (" DES") consisting of approxi-mately 260 pages. The DES addressed all five of the factors set forth in Section 102 (2) (C) (42 U.S.C. 54 3 32 (2) (C) ) of the National Environmental Policy Act ("NEPA"). The DES stares that several federal, state and local agencies, as lirted, were asked to comment on the DES and that the DES was rade available to the public and the council on Environmental 1/ This Brief does not address the correctness of the Licensing Board's Second and Third Prehearing Conference Orders dated August 4, 1976 and March 8, 1977, which admitted Intervenors as parties to this proceeding.

Intervenors excepted to portions of the Licensing Board's Orders which did not allow as issues in contro- . . .

versy certain tendered contentions. Intervenors re-quested and were granted leave to brief exceptions to rulings on safety contentions following the now on-going safety hearings and waived, by failure to brief, l

their Exception 103, relating to certain environmental contentions not admitted as issues in controversy.

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,7 Quality and the listed agencies in July 1976 (DES, p. ii).1  !

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Notice of availability of the DES and the opportunity to comment thereon was published in the Federal Register (41 F. R. 29231, July 15, 1976).

In February 1977, a Final Environmental Statement

("EES") , consisting of approximately 450 pages, was issued.

Con =ents on the FES were solicited from a number of federal, state and local agencies and the FES was made available to the public, the Council on Environmental Quality and the listed agencies (FIS, p. ii). The FES addressed each of the five f actors specified in Section 102 (2) (c) of NEPA and, in addition, reproduced, in Appendix A to the FES, copies of all of the com.aents to the DES received during the 45-day comment period. Chapter 11 of the FES discussed each of the comments reproduced in Appendix A. The comments of Region VI of the Environmental Protection Agency (" EPA") , in accor-dance with its procedures, classified the Black Fox project "LO" (lack of objections) and rated the DES as Category 1 (adequate) (FES, p. A99).

On April ', 1977, Applicants and Staff each filed motions for summary disposition of several of Intervenors' environmental and site suitability Contentions. After re-

- sponses to the motions were received by the Board, oral

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2/ Herein all citations to the transcript will be tc (Tr.

p. ). All citations to the DES, FES, ER, PSAR or

), (FES, other identified documents will be (DES,

), (ER, ) or (PSAR, ) rather than to exhi-bit numbers, even though the document may have been admitted into evidence.

arguments on thu motions were heard at a prehearing conference held in Tulsa, Oklahoma, on June 27, 1977. In its Order of July 20, 1977, the Board granted, in whole or part, motions for summary disposition of several Contentions, denied motions with respect to other Conteations and listed a number of questions which the Board directed the parties to address in their evidentiary presentations.

Public hearings were held in Tulsa, Oklahoma on the environmental and site suitability aspects of the proposed BFS on August 23, 1977 through September 9, 1977, October 17, 1977 through October 21, 1977, and June 5 and 6, 1978.

Approximately 43 limited appearance statements were heard.

In excess of 700 pages of prefiled written testimony, i including exhibits, were sponsored by witnesses appearing on behalf of the NRC Regulatory Staff, the Applicants and the

.'n t e r v e n o r s . The transcript of the environmental hearings exceeds 4000 pages. The FES, the Preliminary Safety Analy-sis Report ("PSAR") for BFS and the ER were offered and admitted into evidence as Staff Exhibit 1 and Applicants' Exhibits 2 and 3, respectively (Tr. p. 949). Numerous other exhibits were received in evidence.

Following the close of the adjudicatory hearings on October 21, 1977, and again following the re-opened hear-ings of June 5 and 6, 1978, which were convened to consider amendments to Table S-; s.ith respect to the incremental en-vironmental effects of the release of radon during the mining and milling of uranium, proposed findings of fact,

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conclusions of law and briefs were filed by the NRC Regula-tory Staff, the Applicants and Intervenors.2/ On June 24, 1978, the Licensing Board issued a Partial Initial Decision Authorizing Limited Work Authorization (hereinafter referred to as the "PID") in which all of the findings required by 10 CFR 550.10(e) to be made prior to the issuance of a limited work authorization ("LWA") were made. Appendix A to the PID lists all the exhibits adnitted into evidence w5ich were not bound in the transcript. On July 26, 1979, the Director of Nuclear Reactor Regulativn issued an LWA for BFS.

Intervenors and Applicants filed exceptions to the PID on August 4, 1978 and August 9, 1978, respectively. In addition, on August 2, 1978, Applicants filed a Motion for Reconsideration and Clarification of the Partial Initial Decision, which was granted by the Licensing Board on August 24, 1978.

This Brief addresses the issues raised in "Intervenors' Brief In Support of Appeal From Partial Initial Decision," dated September 1, 1978.

3/ Applicants', Intervenors' and NRC Staff's Proposed Find-ings and Briefs were submitted on December 23, 1977, January 3, 1978, and January 9, 1978, respectively. In addition, Applicants filed a reply (including a table of contents to their December 23 submittal) on Janu-ary 27, 1978, and the NRC Staff later submitted a list of errata and changes to their Proposed Findings on ,

March 22, 1978. The Proposed Findings and Briefs i relating to radon-222 were all filed on June 21, 1978.  ;

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II INTERVENORS' BRIEF FAILS TO DEMONSTRATE THAT THE LICENSING BOARD COMMITTED ERROR AND IS BASED ON A MISINTERPRETATION OF NEPA The major thrust of Inter ~enors' Brief is that the FES, as ai. ended by the PID, and the procedures followed in this proceeding failed to meet the requirements of NEPA and that, therefore, Applicants should not have been granted an LWA. In Proposition I of their Brief, Intervenors set forth their understanding of the guiding policy behind NEPA, the basic requirements of NEPA and the independent obligation of the Licensing Board to insure that policies embodied in and procedures required by NEPA are carried out. The majority of the remainder of Intervenors' Brief appears to apply the principles set forth in Proposition I to the administrative record developed below. In addition, Intervenors raise several arguments with respect to more narrow legal ques-tions. However, Intervenors' Brief, taken in its totality, relies almost exclusively on the theory that with one excep-tion, the requirements of NEPA are not subject to the " rule of reason," and Intervenors' Brief does not attempt to place in context the totality of the environmental review performed.

A. INTERVENORS HAVE NOT DEMONSTRATED THAT THE LICENSING BOARD COMMITTED REVERSIBLE ERROR.

Intervenors have excepted'from~nearly every find- - - - -

ing of fact made by the Board. Various " Propositions" in l their Brief purportedly brief these exceptions. However, these Propositions, individually and taken together, fail to meet the requirements in 10 CFR 52.762(a) and the decisions of this Board which set forth the minimum standards of a brief before this Appeal Board.

10 CFR S2.762(a) requires that a brief in support of an exception ". . . shall specify, inter alla, the pre-cise portion of the record relied on in support of the assertion of error." 10 CFR S2.762 (b) . quires that "[E]ach factual assertion made in such supporting or opposing brief shall be supported by a reference to the precise portion of the record on which it is based." In short, as this Appeal Board has said with respect to motions ". . . any party wishing to challenge some particular licensing board action must at least identify the order in question, indicate he is appealing from it, and give some reason why he thinks it is erroneous."$' Moreover, a brief must set forth the back-ground information necessary to an understanding of the setting in which the Licensing Board's determination was made.5[

Intervenors' Brief fails to meet the above criteria.

For instance, Propositions II, III and XXV fail to identify 4/ Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit 2),

ALAB-469, 7 NRC 470, 471 (1978). The mere reference to filed exceptions, even if the exceptions provided this information, does not meet these requirements. Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-424, 6 NRC 122, 126-127 (1977).

Public Service Co. of Oklahoma (Black Fox Station, Units 1 5/

and 2), ALAB-388, 5 NRC 640 (1977).

the ruling appealed from; Proposition XXVI identifies the ruling appealed from, albeit without citation to the record, but fails to identify how the ruling is in error; and not a single one of Intervenors' Propositions adequately sets forth information necessary to an understanding of the setting in which the Licensing Board's determination was made. A large number of Intervenors' Exceptions (e.g., Ex-ceptions 42 through 96) assert that specified Licensing Board findings are contrary to the evidence and contrary to the requirements of NEPA. In briefing these Exceptions, Intervenors have not attempted to fairly summarize the re-cord and demonstrate that the weight of the evidence is con-trary to the Licensing Board's findings. Citations to the evidentiary recori in support of factual statements are only haphazardly provided in Intervenors' Brief with no apparent effort to systematically support the significant factual assertions in support of claims of error. The record cita-tions which are provided often do not support Intervenors' factual assertion.5/ Intervenors have in many instances throughcut their Brief placed what Applicants consider to be  !

undue emphasis on Intervenors' interpretation of isolated i l

l f/ Applicants are unable to find record support for many i factual assertions. However, because in many instances in which Intervenors do provide citations to the record, Intervenors' Brief appears to be based on interpreta- ~~~

tions of the record with which the Ap'plicants cannot ,

agree, we do not represent that there is nothing in the [

record which Intervenors believe supports their asser-tions. Where citations have not been provided, Appli-cants are unable to discuss such interpretations.

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statements in the record without putting the statements in the context of the entire record, or even in the context of the testimony of the witness cited. Moreover, Intervenors make several arguments based on matters entirely outside the record.

The deficiencies in Intervenors' Brief make intel-ligent response by Applicants difficult, if not impossible,1#

do not permit this Appeal Board to make intelligent disposi-tion of the issues raised and, thus, defeat the very purpcse of the Brief.1! The majority of Inter /enors' exceptions should be deemed abandoned.1/ At a minimum, all factual assertions unsupported by record citations should be disre-garded.10/

Intervenors' Brief may be a reflection of their argument that NEPA, except insofar as a discussion of alter-natives is involved, is not subject to the rule of reason and that the independent responsibilities of federal agencies to comply with NEPA virtually exempts Intervenors from the normal responsibilities inherent in participating as parties in an adjudicatory proceeding. The logical corollary to 1

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ing Station, Units 1 and 2), ALAB-394, 5 NRC 769, 770 (1977).

8/ Consurers Power Co. (Midland Plant, Units 1 and 2), 1 ALAB-270, 1 NRC 473 (1975). .. . .

-9/ Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 413 (1976) .

Kansas Gas and Electric Co. (Wolf Creek Generating

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Station, Unit No. 1), ALAB-424, 6 NRC 122, 127 (1977).

l Intervenors' claim that NEPA is subject to the rule of reason only with respect to Section 102 (2) (c) 'iii) -- the discussion of alternatives to the proposed action -- is that the remainder of NEPA's procedural requirements must be applied unreasonably.

Intervenors do not explicitly state that NEPA im-poses unreasonable requirements; however, in Applicants' view, this corollary is the underlying rationale for many of the arguments made in Intervenors' Brief wherein it is claimed there has been inadequate or insufficient compliance with NEPA. In addition, Intervenors have extended their theory of the unreasonable requirements of NEPA to matters not within the scope of NEPA. In particular, Intervenors claim in numerous instances that certain facts should have

. been considered or certain studies performed without any attempt to show that the fact or study has any real signi-ficance to the decision of the Licensing Board. As the cases cited in the next section of this Brief demonstrate, all aspects of NEPA are subject to the rule of reason, and Intervenors' failure to show that certain alleged defici-encies are in any way significant constitutes a failure to show that the Licensing Board erred in reaching its initial decision.

In addressing Intervenors' individual Propositions, Applicants will not attempt to address Intervenors' argu-ments which go to factual matters totally unsupported by record citation or based on matters not of record. Nor will

Applicants address matters which we believe are of no signi-ficance or are adequately treated in the PID or earlier decision of the Licensing Board.

B. THE COURTS AND THE COMMISSION HAVE CONSISTENTLY HELD THAT THE REQUIREMENTS OF NEPA MUST BE INTERPRETED IN LIGHT OF THE " RULE OF REASON. "

1. The Requirements Of NEPA Are Satisfied By A Good-Faith Review Of Significant Environmental Effects Of A Proposed Federal Action.

Applicants do not seriously disagree with Inter-venors' perceptions of the policies and goals embodied in NEPA, nor with Intervenors' understanding that the Licensing Board has a role in insuring compliance with NEPA which is independent of the Board's obligation to determine contested environmental issues. This responsibility is incorporated in the Commission's regulations at 10 CFR 552.104 and 51.51.

Applicants disagree completely with Intervenors' interpre-tation of the cases decided under NEPA insofar as Inter-venors' claim that the " rule of reason" applies only to the scope of the alternatives which must be discussed pursuant to Section 102 (C) (iii) (Intervenors' Brief, p. 9).

Although, in Natural Resources Defense Council, Inc.

v. Morton, 458 F.2d 827 (D.C. Cir. 1972), the case perhaps most often cited for the " rule of reason," the term arose in connection with the degree of detail which must be included in the discussion of the environmental consequences of alternatives to proposed action, the case does not limit the i

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j requirements.

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! Mere administrative difficulty does not in-terpose-such flexibility into the require-ments of NEPA as to undercut the duty of compliance "to the fullest extent possible."

But if this requirement is not rubber, neither is it iron. The statute must be construed in the light of reason if it is not to de-mand what is, fairly speaking, not meaning-fully possible, given the obvious, that the resources of energy and research -- and time -- available to meet the Nation's needs are not infinite.

(458 F.2d 827, 837)

The Federal Courts have cited NRDC v. Morton when applying the " rule of reason" to the scope of the discussion of the environmental consequences of the proposed action it-self,11/ whether federal agency comments and technical re-ferences need physically accompany an impact statementl2/ and, indeed, to the sufficiency of the entire contents of an en-vironmental impact statement.13/ As stated by Justice Marshall:

Just this past Term, in Kleppe v. Sierra Club, 427 U.S. 390 (1976), we had occasion to examine the purposes and requirements of the NEPA. Although we disagreed on certain issues, we were unanimous in concluding that the essential requirement of the NEPA is that before an agency takes major action, it must have taken "a 'hard look' at the environmental consequences." In evaluating 11,/ Scientists' Institute For Public Information, Inc. v.

AEC, 481 F.2d 1079, 1092 (D.C. Cir. 1973).

12/ Life of the Land v. Brinecar, 485 F.2d 460, 468-696 (9th Cir. 1973), cert. denied in 416 U.S. 961 (1974).

13/

~~~

Sierra Club v. Froehlke, 534 F.2d 1289, 1299 (8th Cir.

1976); Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974); National Helium Corp. v. Morton, 486 F.2d 995, 1002, 1004 (10th Cir. 1973), cert. denied in 416 U.S. 993 (1974).

the adequacy of EIS's the Courts of Appeals consistently have enforced this essential requirement tempered by a practical " rule ofreason."$$/

Some courts have used the " rule of reason" as the appropriate test for judicial review of the adequacy of an EIS, as distinguished from the arbitra'ry and capricious standard which would be applicable to a review of the sub-stantive decisions made by the agency after compliance with the procedural requirements of NEPA.bE/ However, the rule of reason was intended to fulfill the Congressional intent embodied in Section 102 (2) (c) of NEPA:

Again, the courts have approached their re-view of claims that congressionally specified detail of environmental effects was lacking in an EIS with a view that Congress did not intend to mandate perfection, or intend "for an impact statement to document every parti-

! cle of knowledge that an agency might compile in considering the proposed action. 15/

Because the rule of reason is consistent with the purposes intended to be achieved by the detailed statement required under Section 102(2) (c) of NEPA, it is the test that this Appeal Board should apply and is, in fact, the test that this Board and the Commission have long applied to 14/ New York v. Kleppe, 429 U.S. 1307, 1310-11 (19 76 ) (Mar-shall, J., in chambers) footnotes and citations omitted.

15/ See, e.c., Sierra Club v. Morton,.510 F.2d 813 (5th Cir. 1975); Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir. 1974); National Helium Corp. v. Morton, 486 F.2d 995, (10th Cir. 1973), cert. denied in 416 U.S.

993 (1974).

~

16/ Sierra Club v. Morton, 510 F.2d 813, 820 (5th Cir.

1975) footnotes omitted.

evaluate the adequacy of an environmental review.17/ -

The FES, as supplemented by the record developed below, provides environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in light of its environmental consequences, provides the public information regarding the environmental impact of the pro-posed EFS and information sufficient to encourage public participation in the further development of environmental information13/ and is sufficiently detailed to permit a

. reviewing court to ascertain whether the Commission has made a good faith effort to take into account the values NEPA seeks to safeguard.19/ Therefore, the procedural require-ments of NEPA have been met.

2. NEPA Does Not Require A Discussion Of Insignificant Or Remote Environmental Effects.

Intervenors correctly point out that the rule of reason does not permit a half-hearted approach to NEPA's requirements.22/ However, the record below certainly does not in any way reflect that the NRC Regulatory Staff or the Licensing Board neglected their duties. Intervenors illus-17/ Consumers Power Co. (Midland Plant, Units 1 and 2),

CLI-74-5, 7 AEC 19, 24 (1974); Long Island Lightine Co.

(Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 836 (1973).

18/ Trout Unlimited v. Morton, 509 F.2d 1276,1282 -(9th - - -

Cir. 1974).

19/ Sierra Club v. Morton, 510 F.2c 813, 820 (5th Cir.

1975).

20/ Intervenors' Brief, p. 9.

trate throughout their Brief what they consider to be fatal deficiencies in the collection of data for the environmental review, consideration of specific impacts, and consideration of mitigation measures to ameliorate these impacts. Little or no discussion is provided by Intervenors on the signifi-cance of data not collected and studies not done or on the severity of the impacts not considered or not mitigated.

The deficiencies claimed by Intervenors to exist in the FES and the Licensing Board's decisionmaking process all fall into categories which have been previously held to not be inconsistent with the mandate of NEPA. The environ-mental review and FES were appropriately limited given the scope of the proposed federal action.21/-

The degree of de-tail is suificient to meet the purposes for which the FES was prepared 22/ even though the FES does not document every particle of knowledge the NRC may have considered in its deliberations.23/ The FES does not dwell exhaustively on 9

unreasonable or speculative alternatives or impacts,m4/

and, in discussing anticipated environmental effects, its 21/ Sierra Club v. Ly ' , 502 F.2d 43, 62 (5th Cir. 1974),

cert. denied in 4. 'U.S. 994 (1975); Scientists' Insti-

-- ~

tute for Public Information v. AEC, 481 F.2d 1079, 1092 (D.C. Cir. 1973); National Resources Defense Council v.

Morton, 458 F.2d 827, 835 (D.C. Cir. 1972); Public Ser-Vice Co. of New Hampshire (Seabrook Station, Units 1 -

and 2), CLI-77-8, 5 NRC 503, 541-42 (1977).

22/ Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th - - -

Cir. 1974).

23/ Mason County Medical Association v. Knebel, 563 F.2d, 256, 265 (6th Cir. 1977).

24/ NRDC v. Morton, supra at 834, 836; Life of the Land v.

Brinegar, 485 F.2d 460, 469 (9th Cir. 1973), cert.

denied in 416 U.S. 961 (1974).

central focus is directed to that which might have a signifi-cant impact on the environment.SE/ The NRC Staff and the Licensing Board did not hold up action on BFS until all possibly relevant studies had been embarked upon and completed or until there was complete unanimity of opinion on the appropriaue course of action to be taken.S1!

3. The Supreme Court Has Held That The Rule Of Reason Applies To An Agency's Response To Matters Raised During Public Participation In The NEPA Process.

Intervenors also attempt to distinguish awa, the rule of reason by placing an interpretation on the decision of the U.S. Supreme Court in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) to which the case is not amenable. Vermont Yankee nowhere suggests that consideration of apparently insignificant environmental impacts or ap-parently unreasonable alternatives, or the collection of apparently unnecessary or useless data is mandated by NEPA merely because some participant in an adjudicatory hearing has tangentially mentioned the matter. The Supreme Court held otherwise:

Indeed, administrative proceeding should not be a game or forum to engage in unjus-tified obstructionism by making cryptic and obscure reference to matters that "ought to be" considered and then, after failing to do more to bring the matter to the agency's at-tention, seeking to have that agency deter-mination vacated on the ground that the agency failed to consider matters "fcceefully pre-1 sented." '

Id., at 553-54.

25/ Trout Unlimited v. Morton, supra, at 1283 n. 9.

26/ State of Alaska v. Andrus, 580 F.2d 465, 471-73 (D.C. )

Cir. 1978); Lif e of the Land v. Brinecar, supra, at 470, 473.

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The Court quoted with approval the following language from Portland Cement Assn. v. Ruckelshaus, 486 F.2d 375, 394 (1973), cert. denied, 417 U.S. 921 (1974): "[C]omments must be significant enough to step over a threshold requirement of materiality before any lack of agency response or consi-deration becomes of concern. The comment cannot merely state that a particular mistake was made . . .; it must show why the mistake was of possible significance in the re-suits . . .. "21/

Mere mention by Intervenors of a matter they wish to have explored is not sufficient. Intervenors must show that the matter has some possible significance, and for that purpose the Supreme Court in Vermont Yankee, at p. 554, approved the threshold test adopted by the Commission in Consumers Power Co. (Midland Plant, Units 1 and 2), CLI-74-5, 7 AEC 19 (1974). The Midland threshold test places on Intervenors the burden of timely advancing a specific con-tention which complies with 10 CFR 52.714 and making a sufficient affirmative showing to require reasonable minds to inquire further into the matter.28/ At pages 10-12 of 22/ vermont Yankee, supra, p. 553.

28/ Applicants believe that the second prong of the threshold test was meant to apply where the matter raised would not normally be considered and on its face appears re-mote or speculative. Clearly, if a contention raises a matter which was not considered due to an obvious over-sight, the agency must consider the matter. But, an Intervenor cannot merely request that the other parties offer evidence or conduct investigations to rebut an un-likely eventuality for which no basis has been estab-lished.

l I _ _

their Brief, Intervenors assert generally that they have met their burden under Vermont Yankee, but the remainder of their Brief is devoid of any indication that this burden was indeed met in any specific instance in which it is alleged the Licensing Board or NRC Staff failed to adequately consi-der matters purportedly raised by Intervenors. Given the context of their entire Brief, Intervenors appear to argue that any matter mentioned in any part of the record must be thoroughly investigated notwithstanding the rule of reason.

Vermont Yankee does not suggest that a motion to dismiss the proceeding (Intervenors' Proposition III), a motion to add parties to the proceeding (Intervenors' Proposition II), a motion to reopen the record wit'.out any showing of good cause (pp. 122-127 of Intervenor s' Proposition XXIII) or a question asked on cross-examination (Intervenors' Proposi-tion XV), unsupported by any indication that the matter has or is likuly to occur, automatically requires a federal agency to institute an investigation. In short, Vermont Yan-kee applies rather than overrules the rule of reason.

4. The Licensing Board Was Correct In Its Substantive Judgments.

Although the rr'_a of reason is the appropriate standard for evaluating procedural compliance with NEPA, this Appeal Board is not limited, as are the courts,'to " - - - -

determining whether the Licensing Board's initial decision was within its authority and rationally based on substantial evidence in the record before it. Pursuant to 10 CFR 552.785

and 2.786, the Appeal Board has been delegated the Commis-sion's authority to review initial decisions of the Licens-ing Board and, therefore, pursuant to 5 U.S.C. 5557(b), may substitute its judgment for that of the Licensing Board on the substantive matters entrusted by NEPA to the discretion of the Commission.2g/ However, the Appeal Board has also recognized, in a slightly different context, that because the determination of the significance of any particular environmental impact calls for the exercise of judgment based on the sum total of the facts of record in a particu-lar case, the Appeal Board will not lightly overrule the Licensing Board's judgments in these matters.dE[ Applicants submit that the Licensing Board's PID, as subset antly modified, was correct in its result.

5. The Scope Of The Environmental Review Required By NEPA Depends On The Nature Of The Proposed Federal Action.

The Commission has recognized that the requirements of NEPA differ when the federal action under review is the licensing of a facility proposed by private parties from those which would be appropriate were the federal action construction of the facility itself.dl/ This difference 29/ Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 402-05 (1976).

30/ Puget Sound Power & Light Co. (Skagit Nuclear Power Project, Units 1 and 2), ALAS-446, 6 NRC 870, 871 n. 3  ;

(1977). I 31/ Public Servica Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 541 (1977). A similar distinction is made by the courts. Sierra Club

v. Lvnn, 502 F.2d 43, 62 (5th Cir. 1974).

l l

l l

results primarily from the fact that the environmental review required by NEPA of a private proposal which requires federal licensing begins only after the proposal is significantly more developed than a proposal for direct federal action.

Moreover, the range of available alternatives to the proposed major federal action of licensing are relatively few. Con-sequently, for licensing of a nuclear power plant, NEPA re-quires environmental consideration primarily of those matters which could preclude the requested license or which could be affected by license conditions. Such consideration should focus on the proposal of the private parties.SS/

As we show below, the Licensing Board correctly concluded that there was an established need for the power from BFS and there were no environmentally superior and currently available alternatives (Section III below).

Thereafter, the Licensing Board considered the anticipated impacts of construction and operation of BFS to determine whether it would be appropriate to impose environmental con-ditions on the license (Section IV below). The Licensing Board also determined that the site was suitable from a radiological health and safety standpoint (Section V). In addition, the Licensing Board correctly decided those legal issues which did not involve the interpretation of NEPA (Section VI). Therefore,, the Licensing Board's decision to . _ . .

authorize the issuance of an LWA was correct.

32,/ Seabrook, supra, pp. 541-42.

III THE RECORD DEMONSTRATES THAT THE ALTERNATIVE OF DENYING A LICENSE FOR BFS IS NOT WARRANTED A. THE LICENSING BOARD CORRECTLY FOUND THAT THE NEED FOR THE ELECTRICAL ENERGY TO BE SUPPLIrD BY BFS WAS ADEQUATELY DEMONSTRATED.3U_

Applicants treat Intervenors' Proposition XIV, relating to solar and wind alternatives, and Proposition XXI, relating to need for power, as interrelated. Both challenge the Licensing Board's findings that the need for BFS was adequately established.

1. Standard of Review.

The demand for electricity is the justification for building any power plant, and, therefore, the electri-city produced is the principal beneficial factor to be weighed in the cost / benefit balance to be struck under

~

NEPA.di/ This Appeal Board has often recognized that the prediction of future growth in demand for electricity is subject to a substantial margin of uncertainty.31/ Due to the substantial uncertainties inherent in predicting future demand, an applicant meets its burden of proving its need 33/ See: Intervenors' Propositions XIV and XXI relating, generally, to PID 11159-194.

34/ Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179, 189 (1978). . .. -.-

35/ Kansas Gas And Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320, 328 (1378);

Marble Hill, supra, p. 185; Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 407 (1976); Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 365 (1975).

for power if it shows that its projections of demand are reasonable and that additional or replacement generating capacity is needed to meet that demand.21/ A demand fore-cast is not fatally flawed simply because the future course of events is sufficiently clouded to give rise to a substan-tial margin of error.21/ Applicants believe that the record establishes the need for BFS during the period between 1983 and 1985 whon Units 1 and 2 are scheduled for commercial operation. The record also supports the Board's finding that even if the demand for electricity grows somewhat slower than anticipated, BFS will allow a beneficial reduc-cion in the consumption of natural gas (PID, 1181).E5/

2. Solar and Wind.

No witness testified that either solar or wind

- Power technology was sufficiently developed to provide central station generating capacity during the time frame in which Applicants propose to construct BFS (PID, 55190-194).

Intervenors do not appear, at pages 60 and 61 of their Brief, to dispute the Licensing Board's findings that con-sumer use of small-scale solar and wind devices is unlikely-to significantly reduce demand for centrally-generated electrical energy prior to the time BFS is currently sche-36/ Marble Hill, supra, p. 185.

22/ Wolf creek, supra, p. 328.

38/ Applicants PSO and Western, which between them will own in excess of 75% of BFS, currently rely almost exclu-sively on natural gas and oil as a boiler fuel (FES, Tables 8.11 and 8.13).

duled for commercial operation. Applicants understand In-tervenors' Brief to argue that if, based on a reduced demand for electricity, BFS could be postponed for approxi-mately ten years, use of solar and wind energy could further reduce the need for BFS thereafter. Applicants' agree that if installation of BFS or some alternative generating capa-city could be postponed until the mid-1990's, rather than the mid 1980's, as currently proposed, then it would be prudent, whether or not required by NEPA, to evaluate in the early or mid-1980's the anticipated effects of the use of solar and wind energy on growth in electrical energy require-ments in the 1990's. However, the record establishes that Applicants will need the generating capacity of BFS in the mid-1980's, and, consequently, Intervenors' argument in Proposition XIV is irrelevant to the issues before this Appeal Board.

3. Forecasted Demand For Electricity.

One would infer from Intervenors' Brief, pp. 103-105, that the Licensing Board found that the need for BFS had been adequately established by rejecting, on the basis of witness qualifications, the test., mony of Intervenors' wit-ness, Dr. Halvorsen (see Testimony of Robert Halvorsen, fol-lowing Tr. p. 2443), and accepting that of Applicants' witness, Mr. Meyer (see Testimony of Frank J. Meyer, Need for Power, following Tr. p. 2391), and the NRC Staff's witness, Dr. Wolsky (see " Testimony of Alan M. Wolsky,"

" Testimony of Alan Wolsky to Rebut Intervenors' (Robert

Halvorsen) Direct Testimony on Contention 49," and " Errata  ;

I to Section 8 of the Black Fox Station Units 1 and 2, Final l Environmental Statement," following Tr. p. 2799). The Licensing Board's decision demonstrates that this is not the case. As the Licensing Board points out, although the demand forecasting methodologies used by the three witnesses differed, there was no significant difference in the results yielded if Dr. Halvorsen's calculations were adjusted on the basis of more current data than he, in fact, used (PID, 5tl79, 180).SS/ Applicants' method of forecasting growth in demand by extrapolation from past trends and the two some-what different econometric methods used by the NRC Staff and Intervenors, when based on current data, all arrive at substantially similar projections of demand for electricity and all show a need for BFS at approximately the time it is currently planned to be placed in commercial operation.iS/

39/ The NRC Staff witness, Dr. Wolsky, presented rebuttal testimony in which he duplicated Dr. Halvorsen's load forecast methodology using the Federal Energy Admini-stration's 1977 forecast of rate of growth in demand for electric energy in the region of the United States which includes Oklahoma (Wolsky Rebuttal following Tr.

p. 2799). Dr. Halvorsen testified that he himself would have used the most recent FEA projection in his calculatione had they been available to him (Tr. p. 2531).

40/ The reserve margin results included at pp. 106-107 of Intervenors' Brief are those reported in Tables 6-9 attached to Dr. Halvorsen's Testimony. As the Licens- . __._ _

ing Board points out, this data is not only based on superceded Federal Energy Administration growth rate projections (PID, 1179), but it is also based on out-dated capacity addition plans of Applicants (PID, 1180).

Therefore, Applicants' "need for power" has been established to the degree required by this Appeal Board's prior deci -

sions.31/

B.

THE LICENSING BOARD CORRECTLY DETERMINED TEAT THE ECONOMICCOSTOFANENVIRONMENTALLYINF{g.pOR 3

AI TERNATIVE TO BFS WAS IRRELEVANT.-

1.

SucGrior To A Coal-Fired Alternative.The Recorf 2ntablishes That B In Proposition XIX of their Brief, Intervenors argue, without a single citation to the record, that the Licensing Board erred in calculating the economic cost of BFS and comparing that cost to the economic cost of a postu -

lated coal-fired alternative. The arguments made by Inter-venors are immaterial to the issues before the Licensing Board.

The Licensing Board determined, in reliance on this

)

Appeal Board's decision in Consumers Power Co. (Midland l Plant, Units 1 and 2), ALAB-458, 7 NRC 155 (1978), that it  !

j need not make a detailed economic comparison between BFS and 41/

Intervenors also claim that the Licensing Board inade- i quately for BFS considered the potential for reducing the need through the use of alternative reserve margins, alternative rate structures, and conservation efforts. load management techniques The Licensing Board consi-dered each without techniques, of Intervenors' contentions relating to such the benefit of testimony from Intervenors to amplify their bare contentions, and concluded, generally, that individually and in com-bination these matters would not significantly affect the need for BFS (PID , 11159-171 and 182-189). Given that Intervenors failed to meet the threshold test of

nificance, they should not be heard to complain thatshoi 1 their lawyer's arguments are more credible than the evidence of the other parties. ,

42/ See:

to PID 11195-225.Intervenors' Proposition XIX relating generally I

l

a coal-fired alternative unless there was at least some hint that a coal-fired alternative was environmentally superior (PID, $195). As this Appeal Board has said, "In short, as far as NEPA is concerned, cost is important only to the extent it results in an environmentally superior alternative.

If the ' cure' is worse than the disease, that it is cheap is hardly impressive."i3/ The only evidence presented to the Licensing Board on the comparative environmental impacts of BFS and an equivalent amount of coal-fired capacity shcws

. that the nuclear alternative is superior from an environmen-tal standpoint (FES 59.1.2.3). Intervenors do not dispute the environmental superiority of nuclear over coal in their Brief. In their proposed findings of fact to the Licensing Board, Intervenors advance solar and wind as environmentally superior energy alternatives and coal as an economically superior alternative ("Intervenors' Proposed Findings of Fact and Conclusion of Law in the Form of a Proposed Order,"

page 106, dated January 3, 1978). Thus, the Licensing Board correctly determined that the relative economic cost of coal and nuclear generated electricity was irrelevant under NEPA.

2. The Licensing Board Was Not Required To Determine The Monetarv Cost Of BFS.

1 The Licensing Board did determine several issues '

raised by Intervenors relating to individual elements in I the overall economic cost of BFS (PID, tt198, 199 and 43/ Midland, supra, p. 163.

l l

204-225).d1! Although Intervenors have argued that many of these findings were erroneous, the magnitude of the error is nowhere identified by Intervenors. This Appeal Board has previously interpreted its NEPA responsibilities as not being highly sensitive to the economic cost of nuclear power plants.

As we explained earlier, NEPA requires us to look for environmentally preferable alter-natives, not cheaper ones. Put another way, once it has been shown that the power to be produced by a plant is needed and that no environmentally preferable way exists cf 95-taining it, the acceptability of the "coct" of the plant in dollars is a question for the utility and the State regulatory agencies, the true experts in this area.

Midland, p. 168.

The economic issues raised by Intervenors are not naterial to the decision to grant an LWA and need not be reviewed by

. the Appeal Board.

C. ADEQUATE WATER ACCESSIBLE TO APPLICANTS IS AVAILABLE AT THE BFS SITE AND THE ENVIRONMENTAL IMPACTS OF THE CONSUMPTIVE USE OF THIS WATER IS NOT &

MAJOR SITE SUITABILITY CONSIDERATION.11/

1. Applicants Are Adequately Assured of Sufficient Water For Use At BFS.

Public and private water rights in the State of ,

i Oklahoma are allocated by the Oklahoma Water Resources Board i i

As of the time of the hearings, the City of  !

(" OWR 3").S5/

l At PID 15200-203, the Licensing Board found that there 44/

~- ~ -

is reasonable assurance that adequate uranium uxists to fuel BFS. Intervenors do not challenge this r 21ing but argue, rather, that the Licensing Board underestimated the cost of nuclear fuel.

45/ See: Intervenors' Propositions II and XXIII relating generally to PID 1138-47.

46,/ 82 Oklahoma Statutes 5105.9.

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Tulsa, Oklahoma had an allocation from the OWRB for 141 millions et gallons per day ("MGD") and was in the process of negotiating a contract with the U.S. Army Corps of Engi-neers (" Corps") for 313,500 acre-feet of storage space in the cologah Reservoir, a Corps-operated water impoundment upstream from the BFS site.-47/ According to Mr. James Dwen of the Corps, the amor.nt of storage subject to negotiation between Tulsa and the Corps will dependably yield 141 MGD of water (Tr. pp. 3759-60). PSO, on behalf of the Applicants, entered into a contract with the City of Tulsa to purchase 25,000 acre-feet of water for each unit at BFS.18! This quantity of water is adequate to meet the needs of BFS (Daley, p. 3) and, as of the time of the evidentiary hearings, canstituted the sole source of water for BFS (Daley at Tr.

pp. 3777-78).

By Order dated December 5,1979, this Appeal Boa: d granted Applicants' Motion to supplement the record with 47/ The role of OWRB and the Corps was explained briefly during cross-examination of Applicants' witness, Mr. Jack Cornett, by Intervenors' attorney (Tr. pp. 3516-17).

OWRB allocates water rights, and the Corps contracts for storage of water in Corps-operated reservoirs.

Mr. James Dwen, an attorney employed by the Corps, tes-tified that the Corps only contracts for water storage space with parties who have been granted water rights by the State (Tr. pp. 3724-26).

48/ Testimeny of J. E. Daley, Contention 40, following Tr.

p. 3776 at p. 3. The contract between PSO and Tulsa, dated October 14, 1978, is attached to Mr. Daley's testimony as Exhibit JED-2. The contract allows Tulsa to release the required raw water from the Dologah Re-  !

servoir or substitute treated sewage effluent from )

Tulsa's sewage facility (Article III of Exhibit JED-2).

Tulsa has expressed its intent to utilize sewage efflu-ent to the maximum extent possible prior to releasing i

water from the Oologah Reservoir (Exhibit JED-3) .

l l l

evidence of a Permit to Appropriate Stream Water, issued by OWR 3 to PSO on July 11, 1978, and OWRB's findings of f act supporting that Permit.11/ The CWRB Permit allocates 50,000 acre-feet of water for use at BFS and, thus, provides suffi-cient water to meet the needs of BFS under normal conditions.

BFS will use only about 2% of the unallocated water which normally flows past the BFS site (OWRB Finding #12). However, during drought or low River flow conditions, Applicants will rely on their contract with Tulsa for water stored in the Cologah Reservoir to insure that water shortages do not tem-porarily affect BFS operations.10/

2. The Water Under Contract With Tulsa Is Available.

Mr. Jack B. Cornett, a consultant retained by Ap-plicants to evaluate the dependable yield of the Cologah Re-servoir under drought conditions, testified that his firm conducted a study which showed that the available water 49/ Citations to the " Findings of Fact, Conclusions of Law and Order of the Oklahoma Water Resources Board" dated July 11, 1978 will be to (OWR 3 Finding # ).

50/ Mr. Nicholas J. Beskid, who testified on behalf of the NRC Staff, estimated that supplementary releases might be required 25% of the time (" Testimony of Nicholas J.

Beskid" following Tr. p. 2122). The NRC Staff flow estimates are also 3hown at p. 2 of " Staff Rebuttal Testimony" following Tr. p. 2128, which Mr. Beskid sponsored in part. This analysis by Mr. Beskid seems l unreasonably conservative. On cross-examination, Mr. )

Beskid stated that his flow estimates were based on '

data from the years 1963 through 1970 (Tr. pp. 2145-214S).

Since the Navigation Channel locking system was ccm-pleted in 1970, low flows in the Verdigris River have been much higher and, thus, Mr. Beskid presented flow estimates which were in his words ". . . much worse than would actually occur." (Tr. p. 2147).

l

9 supply storage space in the Cologah Reservoir was adequate to meet all water allocations therefrom, even under the worst drought of record, which occurred during the years 1952-57.51/

Intervonors question whether, in view of certain pending litigation, Applicants can rely on Tulsa's obtaining storage rights in the cologah Reservoir. A civil lawsuit has been filed challenging whether the requirements of NEPA need be met by the Corps prior to entering into the contract with Tulsa.j2/ The suit will delay execution of the contract (Tr. pp. 3733, 3735). If the Court orders that a full en-vironmental impact statement be prepared, the Corps would have to consider the alternative of not entering into the storage contract with Tulsa, the entity which has a right to the water itself; but this is viewed as a theoretical but not realistic alternative (Dwen, Tr. p. 3736;. By virtue of the Water Supply Act of 1958 (43 U.S.C. S390b), the Corps 51/ Testimony of Jack B. Cornett, Contentions 39 and 40, following Tr. p. 3509. Mr. Cornett's testimony is a summary of a study previously submitted as part of Applicants' ER, Amendment 6, on December 3, 1976 (Ap-pendix 2.D to ER, Chapter 2). As Mr. Cornett's testi-mony indicates, the study essentially simulated the stather conditions (and, therefore, the infievs to and e"aporation from Oologah Reservoir) and postulated disws from the Oologah Reservoir based on maximum utilization of OWRB water allocations and anticipated navlyation use. The results of.Mr. Cornett's study - - -

were Ovaluated and independently verified by the NRC Staff, and the results of their analysis are reported in 52.5.1.1 of the FES.

52/ The lawsuit is entitled League of Women Voters v. Coros of Engineers, et al., No. 77-C-54, and is pending in i the United States District Court for the Northern Dis-trict of Oklahoma.

i 1

considers itself to be under a Congressional mandate to con-tract for water storage with parties with state water allo-cations (Dwen at Tr. pp. 3725; 3730-32; and 37;8). Another alternative to be considered would be to seek a change in the Water Supply Act, which the Corps representative viewed as presenting obvious problems (Dwen, Tr. p. 3737). In the interim, the Corps is not negotiating with any other party for the storage space because the Water Supply Act would prohibit it from doing so (Dwen, Tr. p. 3738). The City of Tulsa is desirous of entering into the contract, and, but for the lawsuit, the Corps is prepared to enter into the contract (Tr. pp. 372S-29).

Under this set of facts, the Licensing Board was faced with the possibility that if the U.S. District Court eventually ordered preparation of an environmental statement, the Corps might decide after full compliance with NEpA that entering into a storage contract with the City of Tulsa is not the appropriate alternative to pursue. However, this alternative would require the change in a basic piece of legislation and, therefere, need not necessarily be consi-dered at all.52/ The Licensing Board evaluated the evidence before it and concluded that the pending lawsuit was not likely to affect Applicants' water supply (PID, 1543 and 45). The Licensing Board correctly concluded that the contract between PSO and Tulsa provides reasonable assurances 53/ NRDC v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972).

of an adequate water supply for BFS.54/ -

Intervenors did not present any evidence on the physical availability of water during the hearing. However, Intervenors attempted to reopen the record by Motion dated March 29, 1978, approximately five months after the eviden-tiary record on water matters was closed, for the apparent purpose of introducing evidence in support of the extra-record arguments made at pages 122-127 of their Brief to this Appeal Board. This Motion was opposed by the NRC Staff

. and the Applicants and denied by the Licensing Board by Order dated May 2, 1978.

The Licensing Board ruled that Intervenors' Motion, which was based on a 1965 Kansas-Oklahoma Arkansas River Basin Compact (the " Compact"),51/ was inexplicably untimely and that Intervenors' Motion, being unsupported by an affi-davit of a qualified individual, failed to raise any signifi-cant issues and, therefore, should be denied pursuant to 54/ Intervenors have argued, at p.116 of their Brief, that Tulsa has lost part of its water allocation from OWRS.

There is no evidence in the record to support this con-tention. However, Applicants' attorneys contacted OWRB and learned that the water allocated to Tulsa by OWR 3 Permit No.54-517 which is subject to Tulsa's contract  ;

with PSO had been reduced by 9%. The remainder of the allocation is more than adequate to meet Tulsa's con- '

tractual obligation to PSO, and Tulsa has not indicated any intent to alter their commitment to PSO in view of  !

this development.

l 55/ A copy of the Kansas-Oklahoma Arkansas River Basin Com- . -- -. J pact, 82 0.S. 1401, et sec., is attached to "Appli-cants' Response to Intervenors' Motion to Reopen and Supplament the Record," dated April 10, 1978.

l l

Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAS-138, 6 AEC 520 (1973). This Appeal Board has stated that unless it appears that reopening of the record will effect a change in the result below, the record should not be reopened.51/

Intervenors offer no factual sv nort for their assumption that Kansas will, through future development, divert and consume all of the Verdigris River flow that originates in Kansas (Intervenors' Brief, pp. 123-24). The existence of the Compact does not lead to that assumption,52/

nor is any other ground for that assumption given. There is simply no reason to believe that Kansas can or will consume all of the water in the Kansas portion of the Verdigris River watershed. It was not error for the Licensing Board to refuse to reopen the evidentiary record based on nothing more than a belated request by Intervenors.

3. The Impacts of The Consumptive Use of Water At BFS Are Minimal.

The "ES analyzes the physical impacts on the Ver-digris River of consumptive use of water at BFS and concludes that the impact is negligible (FES 5 52. 5.1.1, and 5.2 and p6/ Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33 (1977).

57/ The Compact, which has as one of its . major purposes the ,

equitable apportionment between Kansas and Oklahoma of water in the Arkansas River Basin, including the Verdi-gris River, and places specific limitations on the right of Kansas to construct new water conservation storage capacity, seems to limit rather than expand the right of Kansas to appropriate Verdigris River water.

FES Table 10.13) . This conclusion is not challenged by Intervenors. Rather, Intervenors claim that the Licensing Board erroneously disregarded the impact of the consumptive use of water at BFS as it affects other potential uses of the water. .

The evidence shows that the water purchased from Tulsa can be supplied by any combination of treated city sewage effluent or untreated raw water stored in the cologah Reservoir (Exhibit JED-2, Article III). The City of Tulsa has resolved to utilize all available sewage effluent prior to utilizing raw water from Cologah Reservoir to fulfill its contractual obligations (Exhibit JED-3). Sewage effluent is eventually expected to be released from the Tulsa sewage system into the Verdigris River at a rate of 35 MGD (Tr.

p. 3636). Based on the figures given at FES 53.3 and FES Table 3.1, a simple calculation shows that Tulsa's sewage effluent will be adequate to supply approximately 86% of the maximum water demand at BFS and is more than adequate to supply the average demand.E8/ Moreover, on July 11, 1978, PSO was granted a water allocation from OWR 3 which will obviate the need to draw on Tulsa's water supply under most circumstances. Thus, consumptive use of water at BFS will have only a small effect on Tulsa's water supply in the Oologah Reservoir.

58/ 28,000 gpm X 1440 mir.ates/ day = 40.32 MGD, the esti-mated maximum demand.

22,600 gpm X J.440 minutes / day = 32.54 MGD, the esti-mated averaga demand.

As to Intervenors' claim that Tulsa will be with-out water by 1983, the Licensing Board points out that this is not entirely accurate (PTD, 144). In any event, the Holway Report, on which Intervenors base this assertion, wa s in the possession of the City of Trisa at the time Tulsa executed its contract with PSO (PID, 144). In essence, Intervenors want the NRC to overrule Tulsa's substantive judgment to sell water to PSO based on facts known to Tulsa when it made this judgment. Applicants believe that the Licensing Board was entirely correct in refusing to do so.

Moreover, the unrebutted testimony shows that rather than imposing an economic cost on users of Tulsa water, the contract would provide them with a significant economic gain (Cornett, Tr. p. 3550).

There is no basis in the record whatever for Intervenors' argument that the consumptive use of water at BFS would result in water shortages in other communities.

The water allocated by OWR 3 to Tulsa and earmarked for BFS would not be available to other communities. It has been allocated for municipal or industrial use by Tulsa. Nor is there any great shortage of water downstream from BFS. Of the 2,941,000 acre-feet average annual flow at Inola, just upstream from BFS, only 441,000 acre-feet are subject to prior allocations (OWR 3 Finding #11). Thus, it appears that the consumptive use of water at Black Fox Station will not  !

l cause any significant adverse environmental or economic impacts, nor will it contribute to any water shortage.

1 l

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There is no reason for this Board to reverse the Licensing Board's rulings regarding water availability or impacts of consumptive use of water.51!

IV THE RECORD SUPPORTS THE LICENSING BOARD'S FINDING THAT THE ENVIRONMENTAL REVIEW PERFORMED BY THE NRC STAFF, AS AUGMENTED BY THE PID, WAS ADEQUATE  ;

A.

THE IMPACTS ON WATER QUALITY FROM CONSTRUCTION Ag*'Q OPERATION OF BFS WERE ADEQUI.TELY CONSIDERED.S.-

Intervenors assert that the Licensing Board's

_aoproach to considering BFS compliance with water quality 59/

At Proposition II of their Brief, Intervenors argue that the Licensing Board should have instituted its own investigation into whether the Cherokee Indian Nation had superior rights to all waters in the verdigris River (Intervenors' Brief, p. 14). Presumably, this should have been done because the United States Supreme rightshas Court to never said the Cherokees do not have superior the water Absent any indication that(Intervenors' Brief, p. 14).

the Cherokees have rights to any water intended to be used at BFS or any interest in pursuing the possibility that such rights exist, there was no reason the Licensing Board should have ordered an investigation into this matter. Nor was the Licens-ing Board's denial, by Order dated January 13, 1977, of Intervenors' " Application to Add Necessary Parties or Dismiss," dated December 31, 1976, prejudicial to Intervenors. Intervenors could have, but did not, seek to introduce evidence of prior water rights of the Cherokees during the evidentiary presentation on Con-tention 39 and could have, but did not, apply for subpoenaes pursuant to 10 CFR S2.720 to aid in the collection of any relevant evidence in the possession of the Cherokees. Intervenors' attempt to hoard for use as grounds for appeal what Intervenors mistakenly claim by thewas a procedural Appeal error should not be countenanced Board. Public - --

Service Co. of Indiana, Inc.

(Marble Hill 2), ALAB-459, Nuclear Generating Station, Units 1 and 7 NRC 179, 189 (1978).

{0/ See:

Intervenors' Propositions XVII and-XX relating to PID 1%48-50 and 55-75.

' laws was erroneous . Intervenors argue that the Licensing Board should have made detailed findings on compliance or non-compliance of BFS with all applicable water quality regulations, even though Intervenors appear to recognize

. - that enforcement of these regulations is outside of the jurisdiction of the NRC. Intervenors also argue that the Licensing Board should have withheld action on the Applica-tion until federal and state discharge permits had been granted. However, because no significant ecological harm or adverse impacts to the beneficial uses of the Verdigris River will result from the discharges from BFS, the Licens-  !

ing Board correctly found that enforcing compliance with l water quality laws was outside of its jurisdiction (PID, S t 55 and 65) . 61/

Intervenors appear to take the erroneous l

position that NEPA requires the quantification of environ- )

mental impacts in terms of compliance or non-compliance with applicable regulations. No authority is cited for this 1 l

novel proposition. I

1. Liquid Discharges From BFS Wi'1 Not Have A Significant Adverse Impact on The Acuatic Environment.

t The Licensing Board heard testimony on the poten-tial for adverse impacts on the aquatic environment from 61/ By letter dated December 7, 1978, Applicants informed the Appeal Board of the current status of the hearings on an NPDES permit and OWR 3 Waste Disposal Permit for BFS. These permits, as currently drafted, will require a reduction of the chemical content of the effluent from BFS frc'4 those evaluated by the Licensing Board and, therefore, the Licensing Board's review of the aquatic impacts associated with BFS is a worst case l analysis. l l

1 l

liquid discharges from BFS presented by Mr. John G. Aronson, an ecological consultant employed by Applicants,53/ and Mr.

William S. Vinikour, an ecological consultant employed by Argonne National Laboratory, who testified for the NRC Staff.51/ .Intervenors' witness, Mr. Pigg, did not present testimony on the ecological impacts of liquid discharges; however, he expressed some concern over the impact of con-struction-generated silt on fish spawning (Tr. pp. 3142-46).

The parties reached an agreement to alleviate this concern, and the agreement was subsequently approved by the Licensing Board (PID, 172). Intervenors' witness, Mr. Mathur, in his prepared written testimony following Tr. p. 1933, raised several matters which were answered in the testimony of Messrs. Aronson and Vinikour.

In Chapter 5 of the FES, the assessment of environ-mental impacts from liquid discharges from BFS was based on an erroneously-high value of 379 cubic-feet per second (c. f. s. ) for the Verdigris River low ficw. Based on evidence presented at the hearing, the Licensing Board found that a low-flow value of 70 c.f.s. is appropriate for estimating environmental impacts (PID, 160). Intervenors do not chal-p2/ Supplementary Testimony, John G. Aronson, Contention 34 (a) ,

Affidavit of John G. Aronson, Supplementary Affidavit of John G. Aronson, all following Tr. p. 1600; and ---

Aronson's oral Direct Examination at Tr. pp. 1596-1620.

r 63/ NRC Staff Testimony of William S. Vinikour, following l Tr. p. 2125; NRC Staff Testimony of William S. Vini-kour, -following Tr. p.1593.

1 l

lenge this finding.64/ Messrs. Vinikour and Aronson testi-fied that the levels of heat (Aronson, Supplementary Af fidavit,

p. 3; Vinikour, Water, p. 2; Staff Rebuttal, p. 9) and chemicals (Aronson, Tr. pp. 1603-20; Vinikour, Water, pp. 3-4; Staff Recuttal, p. 8) discharged from BFS would have a negligible impact on the ecology of the Verdigris River at flows of 70 c.f.s. or lower. Mr. Aronson testified that the chemical content of the effluents discharged from BFS would not adversely affect the use of the Verdigris River for stock-watering, irrigation or human consumption, nor would the effluents adversely affect the capability of the Verdi-gris River to maintain a viable fishery (Aronson, Tr.

pp. 1603-20). He also testified that construction silt would not adversely affect fish, fish eggs or spawning (Aronson, Affidavit and Supplementary Affidavit, following Tr. p. 1600). The Licensing Board did not make specific finding with respect to the ecological impacts from chemi-cals contained in the effluent from BFS. Intervenors' witness, Mr. Mathur, emphasized only compliance with appli-cable regulations and was not qualified to, nor did he, 64/ At page 70 of their Brief, Intervenors appear to state that the Board determined that the 70 c.f.s. low-flow value was appropriate for determining compliance with ' ' ~

various water quality laws. This doe's not appear to be the case (see: PID, 159). The Licensing Board did not make definitive findings on compliance with water quality laws because it recognized that the appropriate effluent limitation to insure compliance with state and federal water quality laws will be included in permits issued by EPA and OWRB (PID, 165).

address himself to ecological impacts nor effects of BFS on beneficial uses of the Verdigris River, other than to raise possible areas of concern (Mathur, Tr. p. 1944; 1950-52 and 1963). Therefore, the Licensing Board's PID reflects the interpretation placed by Intervenors on their own contentions and did not address essentially uncontested matters.

2. Neither NEPA Nor FWPCA Require The NRC To Attempt To Enforce Through Its Licensing Procedures Water Quality Laws Within The Jurisdiction Of EPA And State Acencies.

At page 69 of their Brief, Intervenors have equated environmental impacts, as they relate to aquatic impacts, to compliance or non-compliance with water quality laws or ef-fluent limitations imposed by law or regulation. Inter-venors then argue that NEPA imposes a duty on the NRC to assess whether ; '

.ities requiring NRC licenses will comply with all water quality standards and, if not, to impose con-ditions on licensees to insure compliance with such standards.

The Licensing Board decided that although it must evaluate the environmental impacts of liquid discharges from a faci-lity, enforcement of water quality laws should be left to those state and federal agencies with primary jurisdiction over water quality (PID, 1155 and 65). Applicants believe that the Licensing Board's approach is consistent.with both NEPA and the Federal Water Pollution Control Act of 1972

( " FWP CA , " 33 U.S.C. 51251, et sec.).

Although.Section 101 of FWPCA states that the ob-jective of the Act is to restore and maintain th.a chemical, l

physical and biological integrity of the Nation's waters, FWPCA also states that it is the policy of Congress to re-cognize and preserve the primary responsibilities of the states in this regard and assigned to the Administrator of EPA the duty of administrating FWPCA (33 U.S.C. 51251(a),

(b) and (d). Section 511(c) of FWPCA significantly narrowed the authority of other federal agencies to impose, as con-ditions precedent to the issuance of a license, any effluent limitation other than any such limitation established pur-suant to FWPCA (33 U.S.C. S;3 71 (c) (2) ) . In addition, Sec-tion 101(f) of FWPCA provides that:

(f) It is the national policy that to the maximum extent possible the procedures util-ized for implementing this chapter shall en-courage the drastic minimization of paper-work and interagency decision procedures, and the best use of available manpower and funds, so as to prevent needless duplication and un-necessary delays at all levels of government.

(3 3 U.S .C. S1251(f))

Section 511(c) (2) of FWPCA does not specifically prohibit the NRC from imposing as conditions in its licenses effluent limitations which are identical to those promulgated in FWPCA. However, Section 101 certainly indicates that such duplication of effort is contrary to the national policy embodied i~ FWPCA. Moreover, the Licensing Board was not required to determine in a vacuum whether it ought to impose conditions on Applicants such as those Intervenors deem appropriate. The respective roles of the NRC and EPA

. in the area of water quality are governed by a "Second Memorandum of Understanding and Policy Statement Regarding

Implementation of Certain NRC and EPA Responsibilities" (40 F.R. 60115-60121, December 31, 1975), as well as NEPA and FWPCA. Paragraph 4d of the Policy Statement reads:

NRC will not require adoption of an alterna-tive pursuant to NEPA in order to minimize impacts on vater quality and biota that are subject to limitations or other requirements promulgated or imposed pursuant to the FWPCA.

(40 F.R. 60120)

Thus, the Licensing Board was under instructions from the Ccmmission to refrain from imposing conditions in the LWA for BFS to insure compliance with FWPCA.55!

The fact that as of the time the PID was issued neither a final National Pollution Discharge Elimination Permit nor an Oklahoma Waste Disposal Permit had been issued for BFS does not alter the Licensing Board's responsibility.

Once those permits are issued in final form, their provisions will be binding on the NRC, as well as Applicants.5I!

65/ It would not have been appropriate to attempt to en-force Oklahoma's Water Quality Standards any more than it would be appropriate to attempt to enforce EPA's regulations. To the extent that OWR 3's standards have been approved by EPA, they constitute requirements pro-mulgated pursuant to FWPCA (33 U.S.C. 51313). Most of OWR 3's standards have been approved by EPA (Shirazi, Tr. pp. 2039-40). Some OWRB standards have not been approved (Tr. p. 2041). However, the Second Memorandum of Understanding does not permit such standards to be imposed as license conditions unless they are included in a 401 certification (see Paragraph 4 of the Policy Statement).

66/ Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 543 (1977); Ten-nessee Valley Authority (Hartsville Nuclear Power Plant, Units lA, 1B, 2A and 2B), LBP-76-16, 3 NRC 485, 516 (1976); aff'd. ALAB-367, 5 NRC 92 (1977); Tennessee valley Authority (Yellow Creek Nuclear Power Plant, Units 1 and 2), LBP-78-7, 7 NRC 215, 229-31 (1978).

(Cont. next page)

Notwithstanding this general allocation of respon-sibilities between the NRC, EPA and OWRB, substantial tes-timony was presented regarding compliance with federal and state water quality requirements. No local water requirements were identified. Compliance with state and federal water quality standards was discussed by Mr. Allan F. McGilbra, Chief Chemist for PSO, on behalf of Applicants, Dr. Fred Vaslow of the Environmental Impact Studies Division of the Argonne National Laboratory on behalf of the NRC Staff, Mr. Umesh Mathur, a consulting engineer, on behalf of Inter-venors and Dr. G. A. Shira:1 and Mr. James Long of OWRB appeared as Licensing Board witnesses. As is reflected in the Licensing Board's PID ttS7-65, and in Intervenors' Brief on Proposition XVII, there was not a consensus on how each standard should be interpreted, nor the physical con-ditions under which compliance or non-compliance was to be determined.

66/ Cont.

We note that under a now-superceded version of the Memorandum of Understanding between EPA and the NRC, the Commission said that it was within the Licensing Board's discretion to condition an operating license to insure compliance with certain state thermal water quality standards when requested to do so by that state. Philadelphia Electric Co. (Peach bottom Atomic Power Station, Units 2 and 3), CLI-74-32, 8 AEC 217 (1974). Even if Peach Bottom retains any precedential value following the adoption of the Second Memorandum of Understanding and the decision in Seabrook, supra, it would not support the imposition of effluent limita-tions in this case. A representative frem OWRB testi-fled that OWR 3 intends to issue an appropriately condi-tiened discharge permit for BFS (Shirazi, Tr. pp. 2035-

37) and that OWRB will make the official determination

.of BFS compliance with Oklahoma water quality laws (Shirazi, Tr. p. 2004) .

l 1

l I

The Licensing Board concluded that it was not necessary to specifically determine compliance with each federal and state water quality law or regulation, or to condition the LWA to insure compliance with those laws.

Although it recognized a potential for violation, the Licens-ing Board deferred to EPA and OWR 3 to set specific effluent standards (PID, 165). Mr. McGilbra, PSO's Chief Chemist, testified that Applicants would install the necessary treat-ment facilities to meet any limitations set by CWRB or EPA (Tr. pp. 1879-80), and the Licensing Board factored the potential economic cost of such equipment into its cost / bene-fit balance (RID, 166). The Board also conditioned the LWA to prevent any work performed thereunder from foreclosing compliance with water quality standards (PID, 165).

Intervenors argue that the Licensing Board's ap-proach was erroneous. However, the Commission has held that where the proposed major is federal licensing rather than direct federal activity, ". . . NEPA requires environmental consideration primarily of those issues which would preclude the requested license, or which could be affected by license conditions."$1/ Applicants cannot see how the approach advanced by Intervenors has any real purpose. Before BFS commences operation, Applicants are required by law to have permits specifying the applicable effluent limitations. The .. -

only real issue before the Licensing Board with respect to j7/ Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 541-42 (1977).  !

1 1

)

i i

the environmental impacts of BFS effluents was whether their impact on the ecology of the Verdigris River was such that the plant should not be constructed at the proposed site.

The evidence presented to the Licensing Board demonstrated that the impacts were not significant.

3. The Licensing Board Was Not Required To Await Final Action By EPA And OWR 3 Prior To Issuine The PID.

At page 73 of their Brief, Intervenors imply that a final NPDES Permit and OWRB Waste Disposal Permit are pre-requisites to the NRC's environmental review. The Appeal Board has recognized in the past that for the NRC to stay its hand pending receipt of necessary permits from other agencies would result in nothing but untoward delay.56/

It is not uncommon for a Licensing Board to authorize issu-ance of an LWA prior to the receipt by applicants of a final NPDES discharge permit.51/ It was not error for the Licens-ing Board to proceed prior to final action by the EPA or OWRB.

68/ Southern California Edison Co. (San Onofre Nuclear

~~

Generating Station, Units 2 and 3), ALAB-171, 7 AEC 37, 39 (1974); Cleveland Electric Illuminatinc Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-442, 6 NRC 741, 748 (1977).

69/ Tennessee Valley Authority (Hartsville Nuclear Power Plant, Units lA, 1B, 2A and 2B), LBP-76-16, 3 NRC 485, 511-17 (1976); aff'd, ALAB-367, 5 NRC 92 (1977); Ten-nessee Valley Authority (Yellow Creek Nuclear Power Plant, Units 1 and 2), LBP-78-7, 7 NRC 215, 229-31 (1978).

i i

B. THE LICENSING BOARD CORRECTLY DETERMINED THAT APPLICANTS' RADIATION MONITORING PROGRAM WAS ADEQUATE ANDPROPEP.LYWEIGHEDTHEENVIRONMENTALEFFECTSOgS/

RADIATION EXPOSURE IN THE COST / BENEFIT BALANCE._

Intervenors' Exceptions 58 through 68 purport to challenge each of the Licensing Board's findings with re-spect to the somatic and genetic effects of releases of low level radioactive discharges, the sufficiency of radiologi-cal and bicaccumulation monitoring and occupational radiation exposures.11/ However, in their Brief, Intervenors limit their arguments in support of these Exceptions to two propo-sitions: a general attack on the Licensing Board's findings regarding sufficiency of the radiological monitoring prcJram and an assertion that radiation exposure of workers within BFS would exceed the present 10 CFR Part 20 limits.12/ As we show below, neither of these arguments are substantial.

70/ See: Intervenors' Propositions XI and XXII relating to PID til26-158.

71/ These matters are addressed at two points in Intervenors' Brief at pp. 37-42 and pp. 112-113. The material at pp. 112-113 is repetitive of arguments made at p. 40.

Applicants' response to both portions of Intervenors' Brief is found here.

22/ Intervenors also claim that their cross-examination of an official of the Oklahoma State Department of Health was unfairly foreclosed since the questioning directed to the identity of communities with detectable levels of radium in their drinking water supplies was not al-lowed. This assertion borders on the frivolous since the community closest to the Black Fox site, Afton, was identified, and this town had the highest concentration of radium in its drinking water (Tr. pp. 2259-60).

Municipalities close to BFS, such as Tulsa, Inola and Claremore, were mentioned (Tr. pp. 2275-76). No radium was found in the drinking water supplies of those municipalities (Tr. O. 2274). Moreover no adverse health effects are anticipated from any combination of radium in drinking water, background radiation and radioactive discharges from BFS (Tr. pp. 1248-51).

The adequacy of the preoperational and operational radiological monitoring program was established by the uncontradicted evidence of Staff and Applicants' witnesses.

Thus, compliance with NRC and EPA guidelines for monitoring programs was demonstrated (Testimony of M. John Robinson,

p. 6, following Tr. p. 597) , and, as the Licensing Board noted, all of the pathways for radiation exposure -- air, water, food and external radiation -- are taken account of by sampling a wide variety of media (FID, il43). Intervenors quibble about the selection of fish, other game animals and milk rather than squirrels, waterfowl and cheese for sampling without ever discussing the significance of the change in media which they propose. Similarly, Intervenors' claim that basing the EFS monitoring program on the Monticello program is inadequate because of the differences in location and climate is an irrelevancy. The Monticello program was used simply as a basis for the BFS program, which is tailored to the Black Fox site and which will be modified to account for changes in land use (PID, 1144; FES, pp. 6-12, 6-13).

The only substantial claim advanced by Intervenors in connection with the monitoring program was that it should monitor human health effects as well. This claim is based on the testimony of Intervenors' witness Berte11. Dr. Ber-tell testified that human health effects should be monitored since it was her' belief that the low levels of radiation expected from routine operation of BFS would lead to measur-able adverse health effects (Intervenors' Ex. I at pp. 10-12;

, - - . , , - , . , . . .~ - , - . . , -

Tr. pp. 879-80). Dr. Bertell's assertions were fully consi-dered by the Licensing Board which found that there was substantial evidence presented by qualified witnesses spon-sored by the Staff and Applicants (Drs. Goldman and Whipple) that any such health effects monitoring program would be useless, given the small population at risk, the difficulty in isolating health effects attributable to radioactive discharges from BFS and the long latency period before any health effects would show themselves (PID, 1139 n. 16). As the Licensing Board noted, even accepting Dr. Bertell's approach, no effects would be detected for years even if the entire population of Oklahoma were regarded as being at risk (Id.). In view of all of the evidence, the Licensing Board was clearly correct in declining to order human health effects monitoring.

Intervenors' assertions regarding occupational radiation exposure miss the mark in two respects. First, Intervenors apparently assume that 10 CFR Part 20 will not be met because their interpretation of Appliccnts' calcula-tions show that some workers will receive in excess of 5 rem annually (Intervenors' Brief, pp. 40, 112-113). Initially, it should be pointed out that it is apparent that the aver-age radiation exposure for on-site workers is less than

~~

5 ram. Total man-rem exposure for on-site employees is estimated at 580 (Testimony of Dr. John B. West, p. 4, following Tr. p. 704) which, divided by 135 employees (Tr.

p. 717), is les; than 5 rem per person. Moreover, 10 CFR

~48-

520.101 (b) takes account of_possible radiation exposures to workers in nuclear plants in excess of 5 rem annually by allowing such exposures under the " dose bank" concept.

In any event, as the Licensing Board noted, Ap-plicants are committed to keep occupational exposures as low as reasonably achievable (PID, 1153) and must comply with Part 20 requirements for its employees and contractor per-sonnel. The only pertinent inquiry with respect to the issuance of an LWA is whether the Licensing Board took pro-per account of occupational exposures in assessing the overall environmental costs and benefits of the facility.

Intervenors' Brief nowhere suggests that the Licensing Board ignored or failed to take account of occupational radiation exposures in reaching its decision. Indeed, such an argu-ment would be unsupportable since the Licensing Board speci-fically adopted the higher risk coefficients suggested by Intervonors in deciding that "the incidence of total radia-tion effects will be small compared to the spontaneous incidence of such effects in the total population at risk" (PID, 1158). Accordingly, the Licensing Board determined that such exposures do not "tip the environmental balance against the plant" (Id.).

C.

THE LICENSING BOARD CORRECTLY DETERMINED THAT THE ENVIRONMENTAL EFFECTS OF THE RELEASE OF RADON-222 FROM MINING OF URANIUM IS NEGLIGIBLY SMALL AND DOES NOT AFFECT THE COST / BENEFIT BALANCE FOR BFS.11/

In their Proposition XII, Intervenors assert that 73/ See: Intervenors' Proposition XII relating to PID 1196-125.

to d's decision regarding the amendment the Licensing Pt d associated Table S-3 with respect to radon releases an i m is health effects from the mining and milling of uran u the Staff and the Intervenors assert variously that flawed. imposed on them Licensing Board ignored the responsibilities (River Bend by the decision in Gulf States Utilities Co._

ALA3-444, 6 NRC 760 (1977); that Station, Units 1 and 2) , for estimating the evidence relied upon by Staff witnesses lt of uranium mining, the amount of radon released as a resu d is unreliable; that the overall Staff estimates of ra on by the Licens-releases and health effects, also referred to h Licens-ing Board in its decision, are too low; anddthatreleases te ing Board erred in not considering effects of eriod ra onin associated with uranium mining and milling for a p excess of 1000 years.

This issue must be placed in its proper context.

ific directive What was before the Licensing Board was a spec ing the by the Commission to consider new evidence concern (43 F.R.

release of radon from uranium mining and milling 15613, April 14, 1978).

This new evidence was to be factored siderations into Table S-3, the summary of environmental 551.20(e) con for the uranium fuel cycle, referred to in 10 CFR l effects from the which describes a variety of environmenta .

Table S-3 itself purports to quantify uranium fuel cycle. h nstruction but one set of the environmental Those effects of t e co effects are, and operation of a raclear power plant. ociated with by definition, secondary ones since they are ass

facilities not dedicated to a particular nuclear power plant and which, in some instances, are themselves subject to evaluation under NEPA.11/ Given this background, it is apparent that only a gross error in the calculated adverse environmental effects resulting from the incremental radon releases from uranium mining and milling could have a dis-cernible impact on the NEPA evaluation of BFS.

1. The Evidence Relating To Expected Radon Releases From Uranium Minine Was Reliable And Probative.

The evidence regarding expected releases of radon from uranium mining was presented by Staff witness Wilde, a man with about 20 years' experience in the uranium mining industry, 15 of which were spent as Radiation Safety Director for a company mining uranium (Professional Qualifications of R. M. Wilde, following Tr. p. 3800). As noted by the Licens-ing Board, the estimates of radon releases were made follow-ing telephone conversations with two knowledgeable indivi-duals (PID, 198; Tr. p. 3817). Moreover, these estimates were confirmed by actual measurements conducted by Kerr-McGee Nuclear Corp., which actually measured radon emissions from underground mines (Tr. p. 3843). While these release 1

74/ It is for this reason that Intervenors' discussion of the necessity for Licensing Board evaluation of in situ mining as an alternative to open-pit or underground mining is wholly irrelevant (Intervenors' Brief, _ _ _

pp. 53-56). A permit for mining was not the proposed federal action before the Licensing Board. Indeed, it is likely that in situ mining would reduce the environ-mental effects of the uranium fuel cycle (PID, 1124)

• and, accordingly, the Licensing Board's analysis may overstate the environmental effects of the uranium fuel cycle.

4 "

rates were based on estimates for underground mining, Mr. Wildo estimated the same value for open-pit mining, observiag that the source of radon is the same in both forms of mining, i.e., the uranium ore itself (Tr. p. 3810). No witness presented contrary evidence of expected radon re-leases.

2. There Is No Requirement That On-Going Studies Of Environ-mental Issues Be Completed Before Issuine An LWA.

Intervenors assert that this Board's decision in Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760 (1977) requires that two studies referred to in the course of the evidentiary hearing on radon releases be " applied" to BFS (Intervenors' Brief,

p. 43) and that the River Bend decision requires that these issues "be addressed and the results scheduled for this facility's assessment" (Intervenors' Brief, p. 53). The two studies concern actual measurements of radon from mining of uranium (see Tr. p. 3815) and non-radiological environmental effects of the uranium fuel cycle (Intervenors' Brief,

, p. 52).

Intervenors totally misconstrue the import of the River Bend decision. At issue there were the responsibili-  ;

1 ties of a licensing board "in the radiological health and I safety sphere"25/ at the construction permit stage with j respect to generic unresolved safety issues. These matters must be addressed so that the finding required by 10 CFR 75/ River Bend, 6 NRC, at p. 774.

l

550.35(a) may be made, that there is reasonable assurance that the proposed f acility can be constructed and operated at the proposed location without undue risk to the health and safety of the public.

It is plain that the rule of reason which tempers NEPA's requirements imposes different requirements on a Licensing Board than those dictated by the Atomic Energy Act. The Court of Appeals for the District of Columbia Circuit, in State of Alaska v. Andrus, 580 F.2d 465 (D.C.

Cir. 1978), specifically ccisidered the issue of what NEPA requires in the way of completion of on-going studies. In that case, appellants had argued that, as a matter of law, on-going studies must be completed when data deficiencies are substantial and can be rectified in a reasonable time period. The Court rejected that proposition holdirg that NEPA itself did not specify the " quantum of information" necessary before a decision can be made and that all that is required is that the possible costs of proceeding without better information be considered.25/ While these possible costs were not explicitly referred to in the Licensing Board's opinion, these matters were brought to the Licensing Board's attention. Their consideration is obviously sub-sumed in the Licensing Board's overall conclusion that the health effects from the incremental amount of radon released from the uranium mining and milling necessary to support BFS 76/ State of Alaska v. Andrus, 580 F.2d at p. 473.

F l

i "are miniscule compared to the health effects from the natural background of radon" (PID, $116). Given the need for the facility, delay in the issuance of an LWA until completion of the studies referred to with respect to radon release is clearly unwarranted.

3. The Licensing Board Correctly Evaluated The Health Effects Of Incremental Releases Of Radon As " Negligible."

Intervenors also assert that the emissions calcu-lated from the tailings are unreliable in part because the NRC Staff position on management of tailings does not appl';

to existing tailings, and there is presently no program for monitoring of tailings (Intervenors' Brief, p. 48). Yet, contrary to the characterizations of the testimony found in Intervenors' Brief, the record establishes that there is legislation pending to establish criteria and monitor exist-ing tailing piles (Tr. p. 3907), and, when new tailing piles begin to be established, the NRC will have a monitor-ing and evaluation procedure in place (Tr. p. 3928) . Yet Intervenors' witness Pohl continusd to assert that tailing piles would not be in conformity with NRC requirements, and emissions would be considerably higher than estimated by the Staff (Testimony of Robert O. Pohl, p. 3, following Tr.

p. 4041).

Intervenors assert that, assuming NRC management _ _ _

of tailing piles in inadequate and making a variety of changes in assumptions concerning health effects of radon emissions (Intervenors' Brief , pp. 49-50) , the Staff esti- ,

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mates of health effects are low. The Licensing Board adopted the Staff position with respect to the depth of the tailing piles, but noted that adopting Intervenors' approach would increase the emissions from the tailings by a factor of 2.4 (PID, 1106). The Licensing Board's overall conclusion that the health effects of radon releases are negligibly small (PID, 5125) was based in part on its comparison of the incremental radon emissions from mining and milling uranium to background radon emissions (PID, $112). For time periods up to 10,000 years, the additional radon is less than

.0001 percent of background. Even making all the changes in assumptions suggested by Intervenors, the Licensing Board's ultimate conclusion concerning health effects of radon and their impact on the overall cost / benefit analysis would remain unchanged.

4. The Licensing Board Was Correct In Limiting Its Consi-deration Of Radon Emissions To 1000 Years.

In an effort to demonstrate the adverse health effects of radon emissions, Intervenors calculated these emissions essentially to infinity, rather than to 1000 years as done by the Staff. The Licensing Board correctly rejected this approach, noting that regardless of the time period, health effects from radon released during mining and milling are " miniscule" compare? to those from background radon (PID, 1116). Moreover, such long-range predictions of emissions are based essentially on speculative assumptions concerning such matters as climate, demography and geophysics (Testimony i

1 i

of R. L. Gotchy, p. 12, following Tr. p. 3805). In these circumstances, the Licensing Board correctly concluded that NEPA did not require unreasonable speculation, but that its responsibilities were discharged by evaluating only reason-ably foreseeable environmental effects.22/ Accordingly, its rejection of Intervenors' evidence concerning health effects of radon to infinity was proper.

D. THE LICENS 1 BOARD DID NOT Eo,R IN ITS AI. XLITY FINDINGS.25/

Intervenors argue that open burning is prohibited by Oklahoma air pollution regulations and that construction-generated dust and particulates would cause Oklahoma's secondary standards for particulates in the vicinity of BFS to be exceeded. The appropriate interpretation of Oklahoma's open burning regulation was resolved by the Oklahora Depart-ment of Health, Air Quality Division, Environmental Health Services when, on January 6, 1978, it issued a permit allow-ing the proposed open burning to take place.21/ By Order dated August 25, 1978, the Licensing Board deleted from its PID those paragraphs imposing restrictions on open burning.

77/ Scientists' Institute for Public Information, Inc. v.

Atomic Energy Co=='n., 481 F.2d 1079, 1092 (D.C. Cir.

1973).

78/ See- Intervenors' Proposition IX relating to PID --

1581-88. ,

l 79/ Attachment A to Applicants' " Motion For Reconsideration I and Clarification of Portions of the Board's ' Partial Initial Decision Authorizing Limited Work Authorization,'"

dated August 2, 1978.

The Licensing Board found that the generation of fugitive dust during construction could cause Oklahoma's secondary standards for particulates to be exceeded, but found that the environmenta', impacts from such dust would not be significant (PID, 1t82-84). The Board also found the .

measures to mitigate construction-generated dust are adequate (PID, 188). These measures are described in detail in the written testimony of Applicants' witness, Mr. David Guyot.0S/

The permit issued by the Oklahoma Department of Health on January 6, 1978, took into consideration Applicants' fugi-tive dust control program and, apparently, found it acceptable.

Absent any identified significant impacts, this Appeal Board should accept the Oklahoma Department of Healtn's program to enforce its own regulations.

. At pages 33-35 of their Brief, Intervenors assert that the evaluation of the health effects of asbestos which might be emitted into the atmosphere and Verdigris River l from erosion of the cooling tower cement fill was inadequate l

and that inadequate consideration was given to possible mitigating measures. However, the Licensing Board stated that the matter of emission of asbestos fibers from erosion of-filler material in cooling towers was examined in detail (PID, 187). Applicants believe that the apparent inconsis-tency is a graphic example of Intervenors' theory that NEPA --

is not subject to the rule of reason.

80/ Testimony of David F. Guyot following Tr. p. 1493. Ad-ditional detail regarding these mitigation measures are provided in ER 55 4. 5.1.1 and 4. 5.1,2.

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FES $11.1.5.31 evaluates the potential pathways by l which asbestos could enter the environment from BFS cooling towers and concluded that airborne asbestos would pose no health hazard to persons outside the site boundary (FES,

p. 11-13), and that water-borne asbestos would pose no health hazard as long as ambient concentrations of asbestos in the Verdigris River were below 1 million fibers per liter (FES, p. 11-12). Dr. Lewis, who prepared FES S11.1.5.31, testified that the ambient level of asbestos in the Verdi-gris River was not detectable (Tr. pp. 953-54). The pre-pared testimony of Dr. Lewis reconfirmed that the environ-mental effects of asbesto" were as reported in the FES (Testimony of Barbara Ann Gamboa-Lewis, p. 10, following Tr.

p. 950). Dr. Lewis also reported that maximum concentrations of asbestos fibers on-site would be at least one thousand times less than current OSHA standards for asbestos in the working environment (Lewis, p. 4). Thus, the record in this proceeding gives no indication that any asbestos emitted from the BFS cooling towers pose any threat to human health or to the environment. Nonetheless, Intervenors argue that NEPA requires elaborate baseline data collection, monitoring for asbestos and detailed consideration of alternatives to cooling towers containing asbestos. Such an interpretation of NEPA is contrary to consistent interpretation by the courts which hold that all of the requirements of NEPA are subject to the rule of reason.

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E. .INTERVENORS HAVE ARGUED SEVERAL INSIGNIFICANT MATTERS WHICH DO NOT WARRANT REVERSAL.

Intervenors' Propositions VIII, X, XIII and XV, relating to PID tt76 through 80, 32 through 37, 229 through 233 and 211 and 212, respectively, and Proposition XXV raise matters which are wholly insignificant and are adequately disposed of by the Licensing Board's findings. In Proposi-tion III, Intervenors argue that the Licensing Board erred in not considering so-called discriminatory practices of Applicants. There is no merit to their argument.

Inter-venors had moved to dismiss the proceedings until Applicants demonstrated compliance with 42 U.S.C. SS2000e-1, et sec.

(" Motion" dated June 23, 1976). On two different occasions the Licensing Board informed Intervenors that the proper method of raising this issue is by contention (see p. 16 of 4,

the "Special Prehearing Conference Order" dated August 1976, and pp. 1-4 of " Memorandum and Order" dated October 13, Intervenors never attempted to do so. Thus, Proposi-1976).

tion III should be, but is not, directed to the question cf whether it was error to de:.y Intervenors' Motion to Dismiss.

Even if discriminator, hiring practices were relevant to these proceedings, they are not jurisdictional matters requiring dismissal of the proceedings.

Intervenors claim to have raised the issue suf-ficiently to require'further inquiry. They also claim to FPC, have judicial support for their position in NAACP v.

Inter-425 U.S. 662 (1976). Both claims are frivolous.

i venors do not now, nor have they ever, alleged that Appli- )

cants are engaged in any discriminatory practices. They '

merely sought to have Applicants prove that they are not.

NAACP v. FPC does not require every federal agency to enter-tain such requests; it essentially holds that only quantifi-able consequences of discriminatory employment practices which are directly related to an agency's prirary jurisdic-tion may be considered (425 U.S. at p. 671). The court explicitly rejects Intervenors' generalized public interest argument (425 U.S. at p. 669). There was no reason for the Licensing Board to launch an investigation into Applicants' hiring practices merely because Intervenors asked that the Licensing Board do so.

V THE BLACK FOX SITE IS SUITABLE FROM A RADIOLOGICAL HEALTH AND SAFETY STANDPOINT AND THE SAFE SHUTDOWN EARTHOUAKE SELECTED FOR THE SITE IS APPROPRIATE Four of Intervenors' Propositions are related to issues that bear to some degree on the suitability of the Black Fox site from a radiological health and safety stand-point for two boiling water reactors of the general size and type proposed. Proposition V, relating to PID til5 and 16, Proposition VI, relating to PID t$l8 and 19, and Proposi- ._

tion VII, relating to PID t%20 through 22, raise no issues of consequence. In Proposition IV, Intervenors question the f magnitude of the safe shutdown earthquake selected for the i

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l Black Fox site and challenge the Licensing Board's findings that there are no capable faults on the Black Fox site (PID, til-13).EE!

Intervenors' arguments in Proposition IV reflect a fundamental misunderstanding of the requirements of 10 CFR Part 100, Appendix A, and a failure to read the record as a whole. Indeed, many of Intervenors' factual arguments are not only without record support, but are directly contradic-ted by the record.

Intervenors assert that the Licensing Board relied on incompetent witnesses when it determined that there were no capable faults in the vicinity of the proposed Black Fox site (PID, 113). While Mr. Zaman of Black & Veatch may not have been a geologist, his prepared testimonyg2/ primarily summarized the pertinent portions of a detailed geotechnical investigation performed by Shannon & Wilson, Inc. under the supervision of Mr. Hank Waldron (Waldron at Tr. p. 1265).

The geotechnical investigation was placed in evidence as Appendix 2.B to the PSAR, and Mr. Waldron, whose credentials were 81/ Subsequent to the issuance of the PID, a geologic fea-ture was discovered on the Black Fox site, and both Applicants' and the NRC Staff's technical experts have evaluated its significance. The Appeal Board has been kept informed of this matter by letters from the NRC Staff dated September 29, 1978 and November 22, 1978, and a letter from Applicants dated November 14, 1978.

Reports furnished by the Staff and Applicants demon-strate that the geologic feature has no relevance to the suitability of the Black Fox site or to the selec-tion of the safe shutdown earthquake.

82/ Af21savit of P ul R. Zaman, following Tr. p. 1260, cited as Zaman, p. .

not questioned, joined Mr. Zaman on the stand to field questions beyond Mr. Zaman's expertise. The NRC Staff witnesses were both amply qualified, as was Dr. Reiter of the NRC Staff who sas called as a Board witness. Dr. Stepp, Ms. Wastler and Mr. Zaman all agreed that there are no capable faults in the site vicinity, and Intervenors' witness, Mr. Gregg, expressed no opinion on the matter (PID, 56).83/ -

The record also shows~ that Dr. Reiter shared the opinion that there are no capable faults in the site vicinity (Tr.

p. 1407), and the geotechnical report prepared under Mr. Wal-dron's supervision reported the same conclusion (PSAR,

p. 2.B.2-5). The Licensing Board's finding that the faults mentioned by Mr. Gregg are not capable is amply supported by the record. There was no contrary evidence presented.

10 CFR Part 100, Appendix A states that absent unusual circumstances, faults which are not capable need not be considered in determining the safe shutdown earthquake.

No such circumstances were advanced, and, therefore, the Licensing Board made no finding of the existence of minor faults or the anticipated direction of movement. Any such findings would have been immaterial.

Intervenors claim that the investigations required by 10 CFR Part 100, Appendix A, Subpart IV, were not per-formed. The record does not support.this assertion. Inter- ._.

83/ See the professional qualifications cf Dr. Stepp and Ms. Wastler included with their joint testimony follow-ing Tr. p. 1388, and the qualification of Dr. Reiter following Tr. p. 1402.

venors claim that trenching, gravity surveys, magnetic surveys and dating of mineral assemblages, purportedly re-quired by Appendix A, were not performed. The record re-flects that dating of mineral assemblages was done for the Black Fox site (Stepp at Tr. p.144 8; Wastler at Tr. p. 1449),

available gravity and magnetic surveys were evaluated (Zaman,

p. 5; Waldron at Tr. pp. 1289-90) and trenching had not been performed because other investigations showed that trenching was not necessary (Stepp at Tr. pp. 1447-48; Reiter at Tr.

. p. 1448). In addition to these field investigations, Mr. Zaman briefly summarized, at page 5 of his testimony, other exten-sive site investigations performed. ' Applicants submit that 10 CFR Part 100, Appendix A, was complied with.

The Licensing Board also evaluated testimony of Dr. Leon Reiter, an NRC Staff seismologist who did not agree with the magnitude of the safe shutdown earthquake selected for the Black Fox site. Based on the record as a whole, the Licensing Board found that .12g was the appropriate ground acceleration anticipated from a safe shutdown earthquake and amply explained the reasons for its findings (PID, tt7-13).

VI THE LICENSING BOARD DID NOT ERR IN INTERPRETING APPLICABLE LAW A. THE LICENSING BOARD CORRECTLY FOUND THAT THE -

CERTIFICATION REQUIREMENTS OF SECTION 401 OF FWPCA HAD BEEN WAIVED.8_4/

Section 401 of the Federal Water Pollution Control S4/ -See: Intervenors' Proposition XVI relating to PID 1151-55.

w

Act, as amended (33 U.S.C. 51251, et sec. at 1341, referred to herein as "FWPCA"), requires that an applicant for a federal license or permit to conduct activities which may result in any discharge into navigable waters shall provide a certification from the appropriate state, interstate or federal agency that the discharge will comply with certain applicable provisions of FWPCA or a certification that there are no such applicable provisions. Section 401 also pro-vides that:

If the State, interstate agency, or Admini-strator, as the case may be, fails or re-fuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification require-ments of this subsection shall be waived with respect to such Federal application.

No license or permit shall be granted until the mertification required by this section has een obtained or has been waived as pro-vided in the preceding sentence.

There is no dispute that Section 401 of FWPCA is applicable to an NRC Construction Permit and LWA and that At paragraph 55 Applicants did not have a 401 certification.

of its PID, the Licensing Board found that the 401 certifica-tion requirement had been waived with respect to the appli-The PID cation for an LWA and Construction Permit for BFS.

was subsequently transmitted to EPA .n compliance with

10 CFR 551.52(b) (3) and 40 CFR S123.16(b) (43 F.R. 35762, August 11, 1978). Intervenors have challenged the Licensing i

l Board's finding of waiver as being contrary to the law and unsupported by the f acts (see Intervenors' Proposition XVI) .

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1. Intervenors' Interpretation of Section 401 Is contrary To The Plain Language Of The Statute.

Intervenors argue that the Licensing Board had no jurisdiction to find that the 401 certification requirement had been waived. However, Intervenors' argument goes to the statutory interpretation of Section 401, not to r.he juris-diction of the Licensing Board. The Licensing Board has both the jurisdiction and the duty to determine whether the statutory prerequisites to the issuance of a permit have been met, including compliance with Section 401 of FWPCA.55/

In determining whether Section 401 has been complied with, the Licensing Board may be called upon to decide the exis-tence of facts which it has no legal jurisdiction to estab-lish.85/ The plain language of Section 401 requires that a federal agency determine, prior to issuing a license or permit, whether Section 401 has been complied with. Under appropriate circumstances, this would require a determina-tion of whether 401 certification has been waived.02/

85/ Washington Public Power Supply System (Hanford No. 2 Nuclaar Power Plant), ALAB-ll3, 6 AEC 251 (1973).

86/ Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-493, CCH Nuc.

Reg. Rep. 130,323, p. 28,752 (August 30, 1978).

82/ Applicants are not aware of any instance in which a Licensing Board has found that the 401 certification requirement had been waived. However, from the discus-sion in Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and U , ALAB-216, 8 AEC 13, 43 (1974), it appears that en 16ast one Licensing Board was prepared to authorize 1,tsaan e of an operating license if it were established snat a request to a state for certification were not acted upon within a reason-  !

able period of time. l

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Intervenors argue that the Section 401 certifica-tion requirements are waived only if either the State or EPA has determined that a waiver exists (Intervenors' Brief,

p. 65). Applicants' understand Intervenors to argue that an express waiver must be issued by the agency authorized to provide the certification. This argument is contrary to the plain language of Section 401 and would effectively defeat the purpose of the waiver provision. Section 401 defines waiver as the failure or refusal of the certifying agency to act on a request for certification in a timely fashion (see the partial quote from Section 401 at p. 64, supra). Waiver does not re-quire affirmative action by the certifying agency. Rather, waiver occurs as a matter of law by virtue of the lack of any timely affirmative action. EPA's own regulations provide that the statutory waiver becomes effective upon written notification to EPA from the licensing agency (in this case the NRC) of the failure to act by the certifying agency (40 CFR S123.16(b)) .

This notification was provided by forwarding the PID to EPA (43 F.R. 35762). Thus, the Licensing Board correctly deter-mined that the Section 401 certification requirements were waived because OWRB failed to act on PSO's request for certi-fication within one year.

Intervenors also argue that Applicants were re-

' ' ' ~ ~ '

quired to request certification from'the' EPA rather than OWRB (Intervenors' Brief, p. 64). However, Section 401 pro-vides that a request for certification shall be made to EPA only if ths state or interstate agency has no authority to give certification. Intervenors do not assert that Oklahoma, through the CWRB, lacks the authority to give certification, and, indeed, Dr. G. A. Shirazi, Chief of the Water Quality Division of OWRB, testified that among the powers and duties of OWRB is participation in Section 401 certifications (Tr. p. 2037).88/ Dr. Shirazi also testified that OWRB has, in the past, issued 401 certifications in response to requests from federal agencies (Tr. p. 2092) .

OWRB's failure to adopt written procedures to provide public notice of a request for 401 certification, as required by Section 401, is further evidence of OWRB's failure to act, not of OWRB's lack of authcrity to give such certification.

In any event, OWRB, EPA and representatives of PSO met and established the procedures to be followed in Applicants' request for 401 certification from OWRB (Vaughn L. Conrad, PSO's Manager of Licensing, at Tr. p. 2300). Intervenors' argument that Applicants should have requested 401 certifi-88/ See: 82 Oklahoma Statutes, Chapter 9 (Pollution of Water), SS926.2 and 926.3 (2) and (11) which essentially authorize OWRB to consult and cooperate with federal agencies to help prevent, control and abate water pollution, and grant to OWRB all incidential powers necessary to carry out the purposes of the Act. The legislative history of Section 401 of FWPCA states that "the purpose of the certification mechanism provided in this law is to assure that Federal licensing or permit-ting agencies cannot override State water quality requirements" (Senate Report No.92-411, reprinted at 1972 U.S. Conc. and Adm. News, 3668, 3735). There is no merit to Intervenors' claim that Oklahoma, through OWRB, lacked the authority to participate in the certi-fication process which is designed to effectuate its own water quality requirements.

cation from EPA is contrary to the plain language of the statute.81/

2. The Record Shows That Oklahoma Failed To Act On The Re-quest For Certification Within One Year.

Intervenors also argue that the evidence does not support the Licensing Board's finding that OWRB failed to act on Applicants' request for certification within a reason-able time and that, therefore, the certification requirement of Section 401 was not, in fact, waived. The record shows that on October 7,1975, representatives of EPA, OWRB and PSO met to discuss, among other things, the role of the State of Oklahoma in issuing a Section 401 certification for BFS (Conrad, Tr. pp. 2299-2300). At that meeting it was agreed the CWRB would issue a 401 certification for BFS and that PSO should specifically request a 401 certification as part of its application to OWRB for a State Waste Disposal Permit.

By letter dated October 21, 1975, PSO filed its application for the State permit, and in the cover letter thereto specifically requested 401 certification in connec-tion with its application for a Construction Permit from the l

NRC (Conrad, Tr. pp. 2300-01 and Applicants' Exhibit 24).

This request was received by OWRB in October 1975 and, as of September 2, 1977, when Dr. Shirazi testified at the hearing before the Licensing Board, OWRB had' confined its action on 89/ Intervanors argue, at page 63 of their Brief, based on evidence not of record, that EPA itself has issued an NPDES permit for BFS subject to certification orEPAwaiver ap-from the appropriate state certifying agency.

parently has not adopted Intervenors' interpretation of Section 401.

the request to reviewing the request (Shirazi, Tr. pp. 2088-89).

A 401 certification had not yet been issued (Conrad, Tr.

p. 2302). Dr. Shirazi stated that OWRS was still reviewing PSO's request because "We still haven't received officially a copy of the Final Environmental Impact Statement from PSO, and as long as all the documents are not furnished to us we i are not able to give that particular permit to PSO" (Shirazi, Tr. p. 2089). Dr. Shirt.zi did not know if OWRB had ever requested any additional information from PSO in order to process PSO's request for certification (Tr. p. 20 ? 3) .

Mr. Vaughn Conrad of PSO testified that following the first meeting at which the procedures for requesting 401 certification were established, on at least two occasions (August 31, 1976 and August 15, 1977), representatives of PSO and OWR 3 met to discuss the progress of 401 certifica-tion for BFS. At each meeting representatives of OWR 3 told representatives of PSO that OWRB had not yet estcblished any procedures for processing a request for certification under Section 401 of FWPCA (Tr. pp. 2302-06). At no time follow-ing PSO's application for a 401 certification has OWR 3 requested any additional information needed to process that request from PSO (Tr. p. 2306). The record amply supports the Licensing Board's finding that OWR 3 failed to act on the request for certification within one year (PID, 155). .

Therefore, the Licensing Board's findings are consistent with the law and are fully supported by the record.

The Licensing Board's finding that the Section 401 certification had been waived will not frustrate the purpose of Section 401. As noted in fn. 88, supra, the purpose of the certification provisions of Section 401 is to assure that federal permitting agencies do not override state water quality requirements. The Board was informed by Dr. Shirazi of OWR 3's wastewater permitting functions (Tr. p. 2036) and that OWRB will permit the discharge of effluents into the waters of Oklahoma only te the extent that such discharges do not violate Oklahoma water quality standards (Tr. p. 2049).

Moreover, the Licensing Board conditioned issuance of the LWA to prohibit construction activities prior to issuance of EPA's NPDES permit which would preclude the subsequent con-struction of treatment facilities which would be required to meet the State's water quality standards applicable to BFS 0

(PID, Conclusion of Law 5(e)).10/ The Licensing Board did not purport to authorize Applicants to discharge any efflu-ents into the waters of the State of Oklahoma; thus, issu-ance of the LWA for BFS does not override any such require-I ments. ,

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l 90/ By letter dated December 7, 1978, Applicants' attorney notified the Board that an NPDES permit has been issued for BFS, but its effectiveness has been stayed because of requests for adjudicatory hearings. In addition, a draft Waste Disposal Permit has been issued by OWR 3, and public hearings have been held with respect to that Permit. A final permit has not yet been issued.

B. INTERVENORS HAVE FAILED TO MEET THEIR BURDEN ON APPEAL OF SHOWING THAT THE LICENSING BOARD ERRED IN GRANTING

SUMMARY

DISPOSITION.9.1/

In Proposition XXVI, Intervenors assert that the Licensing Board erroneously granted summary disposition with regard to their contentions and support this assertion with only a lengthy discussion of their impressions of the stan-dards which should guide a Licensing Board in evaluating motions for summary disposition. However, Intervenors do not attempt to point out how these standards differ, if at all, from those applied by the Licensing Board in this case, nor do Intervenors attempt to show that had the appropriate standards been applied (assuming they were not), the result reached by the Licensing Board would have been different.

Intervenors may believe that there existed contested issues of fact with respect to some, if not all, the contentions summarily disposed of, but Intervenors have not indicated what these issues might be. In short, Intervenors have pointed to no error committed by the Licensing Board. Their Brief provides no guidance to aid the Appeal Board in deter-mining whether summary disposition was improvidently granted with respect to any contentions, and makes any response by the other parties, short of resubmitting their motions for 91/ Proposition XXVI relating to " Order Ruling on Motions For Summary Disposition and Listing Board Questions" dated July 20, 1977.

summary disposition, impossible.22/

Contrary to the Rules of Practice and the Appeal Board's previous decisions, Intervenors' Brief does not flesh out the bare bones of their Exceptions or provide the Appeal Board sufficient information or argument to allow intelligent disposition of the issues.23/ To the extent that Proposition XXVI fulfills the purpose of a brief, it is equivalent to no brief at all. Therefore, Exceptions 11, 32, 37 and 102 should be deemed as waived EI/

The sole assertion of error raised by Intervenors which, if correct, would have supported a decision to deny the motions for summary disposition in toto pertains to the alleged improper form of the affidavits in support of Appli-cants' and the NRC Staff's motions. However, this assertion 92/ Applicants' motion for summary disposition, affidavits and supporting exhibits exceeded 600 pages in length

(" Applicants' Motion for Summary Disposition on the Pleadings," April 1, 1977). The NRC Staff's motion and supporting documentation exceeded 200 pages in length

("NRC Staff's Motion for Summary Disposition," April 1, 1977). Intervenors responsed to both motions without supporting affidavits ("Intervenors ' , CASE and Ilene Younghein, Response to Staff's Motion for Summary Dis-position," April 15, 1977 and "Intervenors', CASE and Ilene Younghein, Response to Applicants' Motion for Summary Disposition," May 13, 1977). The Licensing Board's rulings on these motions totalled 40 pages in length (" Order Ruling on Motions for Summary Disposi-tion and Listing Board Questions," July 20, 1977).

93/ Consumers Power Co. (Midland Plant, Units 1 and 2),

ALAB-270, 1 NRC 473, 475 (1975).

94/ Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 413 (1976).

is without merit. The affiants certified that their state-ments were based upon affiants' knowledge and/or belief, and the witnesses' statements affirmatively show that the testi-mony was based upon personal knowledge.

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C. RECIRCULATION OF THE FES WAS NOT REQUIRED PRIOR TO ISSUING THE LWA.

In Proposition XXIV, at page 130 of their Brief, Intervenors assert that the Licensing Board erred in not requiring the recirculation of the FES, as modified by the PID, prior to the issuance of the LWA. Although such a pro-cedure might be recommended were the findings and conclu-sions reached in an initial decision significantly different from those in the FES, these facts are not present in this case. Therefore, it was not necessary to circulate the PID prior to issuance of an LWA.E5/

VII CONCLUSION The Partial Initial Decision of the Licensing Board made all of the findings required to be made under 10 CFR 550.10 (e) (2) based on substantial and probative evidence. The NRC Staff and the Licensing Board fully complied with the applicable provisions of the National Environmental Policy Act and the Regulations of the Nuclear 95/ 10 CFR S2.764 and New England Coalition on Nuclear Pol-lution v. NRC, 582 F.2d 87, 93 (1st Cir. 1978).

Regulatory Commission. No errors in the proceeding below which warrant correction by the Appeal Board have been identified by Intervenors, and, therefore, the Partial 2nitial Decision Authorizing Limited Work Authorization should be affirmed.

DATED: December 15, 1978.

Respectfully submitted,

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Paul M. Murphy /

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Alan P. Bielawski Attorneys for Applicants ISHAM, LINCOLN & BEALE One First National Plaza Suit.3 4200 Chicago, Illinois 60603 (312)786-7500 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. ) Docket Nos.

and ) STN 50-556 Western Farmers Electric Cooperative } STN 50-557

)

(Black Fox Units 1 and 2) )

CERTIFICATE OF SERVICE I, Paul M. Murphy, one of the attorneys for Public Service Company of Oklahoma, certify that copies of "Appli-cants' Reply To Intervenors' Appeal Brief" have been served in the above-captioned matter on the following by United States mail, postage prepaid, this 15th day of December, 1978:

Richard S. Salzman, Esq.

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. 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

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l 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.

Green, Feldman, Hall & Woodard Suite 816 Enterprise Building Tulsa, Oklahoma 74103

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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 Joseph Gallo, Esq.

Isham, Lincoln & Beale 1050 17th Street, N.W.

Washington, D.C. 20036 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 Rt. 1, Box 197 Fairview, Oklahoma 73737 Dr. M. J. Robinson Black & Veatch P.O. Box 8405 Kansas City, Missouri 64114 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: December 15, 1978

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