ML19290F137

Response in Opposition to Applicant'S 800211 Motion to Dismiss Class 9 inquiry.Safety-related Class 9 Issues Differ from Question of Timely Class 9 Environ Impact Analysis

ML19290F137
Person / Time
Site:	Black Fox
Issue date:	02/26/1980
From:	Rogers C, Wilsonzalko L OKLAHOMA, STATE OF
To:	NRC COMMISSION (OCM)
Shared Package
ML19290F130	List: ML19290F129 ML19290F132 ML19290F135 ML19290F137
References
NUDOCS 8003180168
Download: ML19290F137 (9)

Text

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U h ,5 9f UNITED STATES OF AMERICA 2: g -

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NUCLEAR REGULATORY COMMISSION gh, 6 s >

Before the Commission g g3 In the Matter of the Application )

of Public Service Company of )

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

Inc. (Black Fox Station, Units )

1 and 2) )

RESPONSE OF THE STATE OF OKLAHOMA TO APPLICANTS' " MOTION TO DISMISS CLASS 9 INQUIRY" FOREWARD COMES NOW the State of Oklahoma (herein "Okla-homa"), since Februa'ry 27, 1979 an Interested State partici-pant in the above-captioned cause, and makes reply to the MOTION TO DISMISS CLASS 9 INQUIRY filed February 11, 1980 by Public Service Company of Oklahoma, Associated Electric Coop-erative and Western Farmers Electric Cooperative (hereinafter referred to collectively as " Applicants").

I.

Applicants filed the instant motion on February 11, 1980, together with: (1) a response to the STAFF STATENENT OF POSI-TION ON NEED TO OONSIDER CLASS 9 EVENTS PURSUANT TO DIRECTION IN ALAB-573, and (2) a MOTION TO STRIKE RESPONSE OF THE ATTOR-NEY GENERAL (sic) TO ALAB-573. Oklahoma anticipates Applicants will have a similar objection to Oklahoma's participation in the instant Motion and hereby adopts the argument and author-ities set forth in the RESPONSE OF THE STATE OF OKLAHOMA TO Ib ' a 18 0 ( (,((

APPLICANTS' MOTION TO STRIKE RESPONSE OF THE ATTORNEY GENERAL TO ALAB-5 7 3 in support of this State's right to participate in the instant inquiry.

II.

Applicants' argument in support of this motion is bas-ically premised upon the contention that the Atomic Safety and Licensing Appeal Board (hereinafter " Appeal Board") mis-construed the injunction from the Commission to the Staff 1

in the Offshore Power Systems case to:

" ... bring to our attention, any individual cases in which it believes the environmental consequences of Class 9 accidents should be considered."2 Fundamental to Applicants' argument is the contention found in both Staff's 3

and Applicants'4 statements of position that there is no need to consider Class 9 environmental conse-quences in the instant case because there are no "special circumstances" justifying such an inquiry. As pointed out in Oklahoma's response to the Staff's statement of position, such I

In the Matter of Offshore Power Systems (Floating Nu-clear Power Plants) CLI- , NRC , (mimeo, September 14, 1979).

2 Id., (mimeo, at 10).

3 STAFF STATEMENT OF POSITION ON NEED TO CONSIDER CLASS 9 EVENTS PURSUANT TO DIRECTION IN ALAB-5 73, filed January 7, 1980.

3 APPLICANT'S RESPONSE TO INQUIRY BY APPEAL BOARD CONCERN-ING THE NEED TO CONSIDER THE CONSEQUENCES OF CLASS 9 ACCIDENTS IN THIS PROCERDING, filed February 11, 1980.

reasoning really misses the point of what concerned the Appeal Board in ALAB-573. It is submitted that the question posed before the Commission is not whether "special circumstances" exist which would justify the Atomic Safe ty and Licensing Board to inquire concerning Class 9 environmental consequences because that test is firmly rooted in the very proposed policy the Commission is in the process of reconsidering right now.

The question, it is submitted, is whether special circumstances exist that would excuse the instant Construction Permit appli-cation from the same regulatory scrutiny that will be applied to other Construction Permit applications should the Commission determine the policy espoused in the proposed " Annex" to 10 CFR, Part 50, Appendix D, is no longer appropriate for defining the scope of the environmental impact analysis.

Oklahoma would submit the Appeal Board was clearly con-cerned in ALAB-573 whether the Class 9 environmental issue could be addressed in a timely fashion if not raised at this juncture. The Appeal Board determined that under the proposed policy which currently controls the scope of litigation it was clear the Licensing Board did not err in not considering Class 9 environmental impact in its analysis. Since it clearly con-sidered said proposed policy a settled matter, certification of a question of law on that subject to the Commission would have been inappropriate. Instead it interpreted the Commis-5 See Oklahoma's Response, filed February 6, 1980, part I, pp. 2-8.

sion's statement in Offshore _ Power Systems quoted above to require the Staff to inform the Commission whether the Staff believed it necessary, under the instant circumstances, to make a timely Class 9 environmental analysis or else be fore-closed by the issuance of the Initial Decision authorizing issuance of a Construction Permit to the Applicants. Unfor-tunately, the Staff's Statement of Position totally addresses the question from the perspective of the Annex's proposed policy. As was noted in our response to Staff's Statement of Position, the Appeal Board ef fect ively " grandfathered" the instant application from Class 9 environmental impact analysis pending further Commission action.6 Misconstruing as is does the Appeal Board's reason for directing the Staff to report its position to the Commission concerning this proceeding, the instant motion by Applicants should be denied.

III.

Applicants also assert that the Class 9 issue is not ripe for Commission action. They note that the Licensing Board has pending before it certain safety-related Class 9 issues.

It is submitted that Applicants again have missed the point of the Appeal Board's action. The Appeal Board was considering Class 9 environmental analysis policy which was, 6

Oklahoma's " Response to Staff Statement...," p. 7.

in part, the subject of the initial -phase of the Construction Permit proceeding. The safety-related Class 9 issues presently pending before the Licensing Board are a different matter from the instant question of timely Class 9 environmental impact analysis. The safety-related Class 9 issues were apparently accepted pursuant to the recognized exception to the proposed Annex's Class 9 policy, i.e., that "special circumstances" e.-let the.t make a Class 9 safety-related analysis appropriate.

Applicants are correct that the Class 9 safety-related issues are not presently before the Commission. Applicants are incor-rect in their assertion that Class 9 environmental issues should not be considered while the safety-related issues are pending before the Licensing Board. Their motion, to the ex-tent it finds foundation in the above contention, should also be denied.

Re spec t ful ly submi t t ed, JAN ERIC CARTWRIGHT ATTORNEY GENERAL F OKLAHOMA CHARLES S. ROGERS TANT ATTORNEY GE ERAL LEE 4 SON-ZALKO AS TANT ATTORNEY GENERA 1 2 State Capitol Oklahoma City, Oklahoma 73105 (405) 521-3921 .

ATTORNEYS FOR THE STATE OF OELAHOMA CSR/LAWZ:mj UNITED STATES OF AMERICA NUCLEAR REGULATORY COf,SIISSION Before the Commission In the Matter of the Application )

of Public Service Company of )

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

Inc. (Black Fox Station, Units )

1 and 2) )

CERTIFICATE OF SERVICE I, Charles S. Rogers, Assistant Attorney General for the State of Oklahoma, do hereby certify that copies of the fol-lowing documents: RESPONSE OF THE STATE OF OKLAHOMA TO APPLI-CANTS' " MOTION TO STRIKE RESPONSE OF THE ATTORNEY GENERAL TO ALAB-573" and RESPONSE OF THE STATE OF OKLAHOMA TO APPLICANTS'

" MOTION TO DISMISS CLASS 9 INQUIRY," were filed in the above-captioned proceeding and a copy of each was served to the following persons at the indicated addresses by deposit in the United States mail, first class postage prepaid, this 26th day of February, 1980:

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 g-tm v 1o"

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 Of fice 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 S

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, Esquire Atomic Safety and Licensing Appeal Board Panel United States Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary of the Commission United States Nuclear Regulatory Commission Washington, D.C. 20555 (20 copies)

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 At tomic 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, PA 19104 L. Dow Davis, Esquire 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 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 Glenn E. Nelson, Esquire Michael I. Miller, Esquire Isham, Lincoln and Beale One First National Plaza Chicago, IL 60603 Mr. Gerald F. Diddle, General Manager Associated Electric Cooperative, Inc.

P. O. Box 754 Springfield, MO 65801 Mr. Mayna-d Human General Matager Western Farmers Electric Cooperative P. O. Box 429 Anadarko, OK 73005 Mr. Vaughn L. Conrad Public Service Company of Oklahoma P. O. Box 201 Tulsa, OK 74102