ML19320A786

Motion to Intervene as Interested State in Case 80-1566 Before Us Court of Appeals for DC Circuit.Nrc Regulations Grant States Legal Right to Intervene at Appeal Stage. Certificate of Svc Encl.Related Correspondence

ML19320A786
Person / Time
Site:	Black Fox
Issue date:	06/24/1980
From:	Berger R, Cartwright J OKLAHOMA, STATE OF
To:	U.S. COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
References
80-1566, NUDOCS 8007020613
Download: ML19320A786 (10)

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• UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

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M;' ,e CITIZENS ACTION FOR SAFE ) J; 0

\O ENERGY, INC., AN OKLAHOMA ) ] JO// , 7%., ),

NONPROFIT CORP., ILENE ) ... ( / g I

YOUNGHEIN, AN INDIVIDUAL; ) -;\ ... ' - U gd a O j AND LANRENCE BURRELL, AN ) .

f. h . ,f>f INDIVIDUAL, ) .s 4 c

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Petitioners, ) ~DV

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v. ) No. 80-1566

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THE UNITED STATES OF AMERICA )

EX REL. THE NUCLEAR REGULA- )

TORY COMMISSION; JOHN AHEARNE, )

ITS CHAIRMAN; VICTOR GIL- )-

• INSKY, RICHARD T. KENNEDY, )

PETER A. BRADFORD, JOSEPH M. )

HENDRIE, ITS COMMISSIONERS; )

HAROLD R. DENTON, ITS DIREC- )

TOR OF OFFICE OF NUCLEAR )

REACTOR REGULATION; )

)

Respondents. )

MOTION FOR LEAVE TO INTERVENE FORWARD COMES NOW, the State of Oklahoma (" Oklahoma" here-in) by and through the Attorney General of Oklahoma, Jan Eric Cartwright, and respectfully moves the Honorable Court ,to grant Oklahoma leave to intervene in the above-styled and -numbered cause pursuant to 42 U.S.C. S 2239(b) and 28 U.S.C. S 2348. In support of this motion, Oklahoma would show:

The instant appeal is from a final order entered March 28, 1980 by the Atomic Safety and Licensing Appeal Board ( ASLAB) of the United States Nuclear Regulatory Commission (USNRC) in the Matter of Public Service Company of Oklahoma, Associated Electric 8007020(o\3)

r-e e .

- Cooperative, and - Western Farmers Electric Cooperative (Black Fox Station, Units 1 and 2), Docket Nos. STN 50-556 and STN 50-557. Oklahoma has been an active participant in said matter since granted leave to participate on February 27, 1979 as an Interested State.

Oklahoma, as one of the several sovereign states, has a legal interest in assuring for its people that an adequate an-alysis be made of the potential adverse impact on the en-vironment if Applicants are granted a construction permit to build Black Fox Station at the site presently approved by USNRC.

On February 6, 1980, Oklahoma, pursuant to a directive by the ASLAB stated its position to the USNRC that a record on " Class 9 Accidents" should at least be developed by the Atomic Safety

.and Licensing Board assigned to the cause pending the outcome of the Commission's reexamination of the policy that gave rise to exclusion of Class 9 Accidents from NEPA environmental im-pact analysis in order that any protracted decision to reject 5

the " interim policy" of the proposed Annex not require the 1

Public Service Company of Oklahoma, Associated Electric Coperative, Inc., and. Western Farmers Electric Cooperative will be referred to collectively herein as " Applicants."

10 CFR S 2.715(c) 3 ALAB-573 4

42-U.S.C. SS 4341, et seq.

5 l 10 CFR, Part 50, Annex.  :

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USNRC to Black Fox Station from such an analysis. This advice was either rejected or not considered by USNRC.

Although Oklahoma was not yet a participant in the instant case in the phase of the case wherein the instant issues in-itially arose, it is respectfully submitted that intervention would be proper. Oklahoma participates by way of a USNRC regu-lation developed pursuant to a congressional mandatc 0 that states be permitted to " offer evidence, interrogate witnesses, and ad-vise the Commission as to the application without requiring such representatives to take a position for or against the granting of the application."9 Participation as an interest state under 10 CFR S 2.715(c) is radically different than that available to other nonparty participants. Persons not permitted to intervene as a party are at most allowed to give an oral or written statement of position on the issues at any session of the hearings or prehearing con-forence under such conditions as the presiding officer fixes. By 6

USNRC has recently issued notice that it was withdrawing, effective immediately, the proposed Annex,and will in the future require that " Class 9" type accidents be considered in the NEPA analysis. Sec 45 Fed. Reg. 40101 (June 13, 1980). Since USNRC exempted applications in which the Environmental Impact Statement has issued from the new interim policy, the instant case has not been mooted. Id,., at 40103.

In the Matter of Public Service Co. of Oklahoma, et al (Black Fox Station, Units 1 and 2), CLI-80-8, 11 NRC, ,

(March 21, 1980).

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42 U.S.C. S 2021(1). Compare to the language of 10 CFR S 2.715(c).

' Ibid.

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-way of contrast, interested states, through their legal repre-sentatives, have a legal right to introduce evidence, interro-gate witnesses and otherwise advise the Commission in hearings without being required to take a position with respect to the issues.10 An interested state is not limited to the issues as framed by the party participants, but "can participate in the develop-ment . of the record on any issue (contested or not) which is before a licensing board for resolution in a construction permit proceeding."11 An intercated state may appeal a licensing board decision to the ASLAB in a proceeding in which it participated.l*'

In short, the participation permitted an interested state is at least co-extensive to that of a party. The Commission itself has stated previously that " participation of an interested sov-ereign state in. . . { the] licensing process, as a full party or f 1

otherwise,' is always desirable."13 t Oklahoma has offered its advice to the Commission in the instant docket'that Black Fox Station should not be exempt from

]

0 10 CFR 2.715(c). See also the Matter of Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-317, 3 )

NRC 175, 176-177 (1976).  !

11 In the Matter of Project Management Corp., et al (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 392 (1976). j 12 ALAB-317, 3 NRC, at 178. In bringing on appeal the In- .

terstated State must, of course, take a position with respect to j the issue appealed. 3 NRC, at 179. It must follow the same procedural rules as a party. 3 NRC, at 180, n. 7. i In the Matter of Public Service Company of New Hampshire, et al (Seabrook Station, Units 1 and 2), CLI-77-25, 6 NRC 535, i 537 (1977).

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the same environmental analysis to which other pending construc-tion' permit applications will be subjected without a showing by the Commission ~that special circumstances exist that exempt Black Fox Station from the analysis that will be applied to the typical future construction permit application. This advice has appar-ently been either rejected or ignored.

Premises considered, Oklahoma requests that it be permitted to intervene.

Respectfully submitted, JAN ERIC CARTWRIGHT ATTORNEY GENERAL OF OKLAHOMA b,

RICHARD F. BERGER f

ASSISTANT ATTORNEY GENERAL 112 State Capitol Oklahoma City, Oklahoma 73105 (405) 521-3921 RFB:mj o.,,

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT CITIZENS ACTION FOR SAFE )

ENERGY, INC., AN OKLAHOMA )

NONPROFIT CORP., ILENE )

YOUNGHEIN, AN INDIVIDUAL; )

AND LAWRENCE BURRELL, AN )

INDIVIDUAL, )

)

Petitioners, )

)

v. ) No. 80-1566

)

THE UNITED STATES OF AMERICA )

EX REL. THE NUCLEAR REGULA- )

TORY COMMISSION; JOHN AHEARNE, )

ITS CHAIRMAN; VICTOR GIL- )

INSKY, RICHARD T. KENNEDY, )'

PETER A. BRADFORD, JOSEPH M. )

HENDRIE, ITS COMMISSIONERS; }

HAROLD R. DENTON, ITS DIREC- )

TOR OF OFFICE OF NUCLEAR )

REACTOR REGULATION; )

)

Respondents. )

CERTIFICATE OF SERVICE I, Richard F. Berger, one of the attorneys for Movants cer-tify that copies of the foregoing Motion for Leave to Intervene have been served on the persons shown on the attached list by 4 United States Mail, postage prepaid, this 7 day of June, 1980.

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. s LPAti ,W RICHARD F. BERGER fj ASSISTANT ATTORNEY GENERAL

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Chairman John F. Ahearne

. United States Nuclear Regulatory Commission Washington, D.C. 20555-Commissioner Joseph M. Hendrie United States Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Richard T. Kennedy United States Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Victor Gilinsky United States Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Peter A. Bradford United States Nuclear Regulatory Commission Washington, D.C. 20555 Stephen S. Ostrach Office of the General Counsel United States Nuclear Regulatory Commission Washington, D.C. 20555 Richard S. Salzman, Esquire Atomic Safety and Licensing Appeal Board United States Nuclear Regulatory Commission Washington, D.C. 20555 Dr..W. Reed Johnson l Atomic Safety and Licensing Appeal Board Panel United States Nuclear I Regulatory Commission

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Hashington, D.C. 20555 '

Jerome-E. Sharfman, Esqulre Atomic Safety'and-Licensing j Appeal Board Panel-United States Nuclear l Regulatory Commission Washington, D.C. 20555

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Atomic Safety and Licensing Board Panel United States Nuclear Regulatory Commission Washington, D.C. 20555

Atomic Safety and Licensing Appeal Board Panel United States Nuclear Regulatory Commission Washington, D.C. 20555 Sheldon J. Wolfe, Esquire Atomic Safety and Licensing Board Panel United States Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Frederick J. Shon, Member Attomic 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 4.

Philadelphia, PA 19104 William D. Paton, Esquire Colleen Woodhead, Esquire Counsel for NRC Staff U'. S. Nuclear Regulatory Commission Washington, D.C. 20555 Joseph R. Farris, Esquire John R. Woodard, III, Esquire Green, Feldman, Hall &-Woodard 816 Enterprise Building Tulsa, OK ~74103 Joseph Gallo, Esquire 1050 17th Street, N.W.

Seventh Floor Washington, D.C. 20036

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Mr. Clyde Wisner NRC Region 4 Public Affairs Officer 611 Ryan Plaza-Drive Suite 1000 Arlington, TX 76011 Andrew T. Dalton, Esquire 1437 South Main Street Room 302 Tulsa, OK 74119 Mrs. Carrie Dickerson Citizens Action for Safe Energy, Inc.

P. O. Box 924

- Claremore, OK 74107 Mrs. Ilene H. Younghein 3900 Cashion Place Oklahoma City, OK 73112 Mr. Lawrence Burrell Route 1, Box 197 Fairview, OK 73737 Martha E. Gibbs Michael I. Miller Isnam, Lincoln and Beale One First National Plaza, Suite 4200 Chicago, iL 60603 Mr. Gerald F. Diddle, General Manager Associated Electric l Cooperative, Inc.

P. O. Box 754 Springfield, MO 65801  !

l Mr. Maynard Human i General Manager _ l Western Farmers l Electric Cooperative  !

P. O. Box 429 l Anadarko, OK 73005 Mr. Vaughn L. Conrad Public Service Company' of Oklahoma ,

P. O. Box 201  !

Tulsa, OK 74102 i

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Mr. T. N. Ewing, Manager Black Fox Station Nuclear Project Public Service Company of Oklahoma P. O. Box 201 Tulsa, OK 74102 Mr. M. J. Robinson Black &.Veatch P. O.. Box 8405 Kansas City, MO 64114 George L. Edgar, Esquire Kevin P. Gallen, Esquire

' Morgan, Lewis & Bockius Suite 700 1800 M Street, N.W.

Washington, D.C. 20036 Gregory Minor MHB Technical Assoc.

1723 Hamilton Avenue, Suite K San Jose, CA 95125 Samuel J. Chilk Secretary of the Commission United States Nuclear ,

Regulatory Commission Washington, D. C. 20555 9

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