ML20204C095

Motion by a Dalton on Behalf of Intervenors Asking for Aslab to Reconsider Its 781102 Memorandum & Order Denying Intervenors Appl for a Stay of the Lwa.Alleges That Bd Has Misread Congressional Intent.Cert of Svc Encl

ML20204C095
Person / Time
Site:	Black Fox
Issue date:	11/07/1978
From:	Dalton A AFFILIATION NOT ASSIGNED
To:
References
NUDOCS 7811290105
Download: ML20204C095 (4)

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Q UNITED STATES OF AMERICA p/

NUCLEAR REGULATORY COMMISSION 6

P BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD IN THE MATTER OF

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DOCKET NOS. STN 50-556 PUBLIC SERVICE COMPANY OF

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STN 50-557' OKLAHOMA, ASSOCIATED ELECTRIC

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COOPERATIVE, INC. and WESTERN

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FARMERS ELECTRIC COOPERATIVE,

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INC.,

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(Black Fox Station, Units 1

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and 2)

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INTERVENORS' MOTION TO RECONSIDER MEMORANDUM AND ORDER OF NOVEMBER 2, 1978 Intervenors request that the Atomic Safety and Licensing Appeal Board reconsider its order of November 2, 1978, denying Intervenors' Application for a Stay of the Limited Work Authorization.

1.

Intervenors understand the ruling to be that the failure to demonstrate grounds for a stay under the categories of 10 CFR S2.788 was the basis for the ruling.

2.

Intervenors also understand the Board's statements on page.6 concerning "second chances" and the purpose of this Motion is not to disregard that advice.

3.

Next, Intervenors are, and were, cognizant of the four categories.

However, as stated below, Intervenors believe that the basis for the application does now require that these categories be discussed because of a clear statutory prohibition forbidding issuance of the LWA under the fact,s.

781129 ICY

4.

Section 401(a) (1) [33 U.S.C.S.

S1341 (a) (1) )

specifically forbids issuance of an LWA in the absence of certification.

There is no provision for " equity",

i.e.,

irreparable injury and harm to other parties.

Congress has specified where the public interest lies.

Therefore, categories (2), (3), and (4), Memorandum and Order, page 4, just do not apply and consequently were not discussed in Intervenors' Motion for Stay.

5.

(a) Category (1) does not specifically apply.

In other words, the question is not whether Intervenors are "likely to prevail".

The statute is clear and concise.

I The facts are' simple:

There has been no state certification 1

and there has not been a waiver.

(b) The question is whether the LWA may issue in light of the law forbidding issuance.

The resolution of this question, and the granting of the requested stay, just do not fit into the type of grounds envisioned by 10 CFR S2.788.

This is the reason for the lack of discussion of the categories and the reason why Intervenors request reconsideration.

6.

In summary, Intervenors' position is that, when a statute specifically forbids an act, questions of harm, irreparable injury and public interest have already been decided by the Congress.

In such instances it is necessary to demonstrate only that the forbidden act has occurred and 1

Intervonors invite the Board's attention to their Motion for Stay and Brief for the detailed argu.29nt.

to request appropriate relief.

This the Intervenors have done.

Therefore, Intervenors request that this Motion to Reconsider be granted and that, upon reconsideration, the Motion to Stay be granted.

Dated this 7th day of November, 1978.

V AN DREW T / DALTON, JR.

Attorney for Intervenors 1437 South Main Street, Room 302 Tulsa, OK 74119 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing instrument to the following this 7tX day was mailed, postag)e prepaid, of

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Isham, Lincoln & Beale Mr. Joseph Gallo 1050 117th Street.N.h,.

Attention:

Mr. Paul Murphy 7th Floor One First National Plaza, 42nd Floor Washington, D.C.

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Chicago, IL 60603 Mrs. Carrie Dickerson, Chairman, C.A.S.E.

P.O.

Box 924 Claremore, OK 74017 Secretary Attention:

Chief, Docketing & Service Section United States Nuclear Regulatory Commission Washington, D.C.

20555 Chief Hearing Counsel Office of the Executive Legal Director United States Nuclear Regulatory Commission Washington, D.C.

20555 Alan S.

Rosenthal, Chairman Atomic Safety and Licensing Appeal Board U.

S.

Nuclear Regulatory Commission Washington, D.C.

20555 Dr. W. Reed Johnson Atomic Safety and Licensing Appeal Board U.

S.

Nuclear Regulatory Commission Washington, D.C.

20555 Jerome E. Sharfman Atomic Safety and Licensing Appeal Board U.

S.

Nuclear Regulatory Commission i

Washington, D.C.

20555 Mr.

T.

N. Ewing l

PSO, Box 201 l

Tulsa, OK 74102 l

Mrs. Ilene H. Younghein 3900 Ca;hion Place Oklahoma City, Oklahoma 73112 Mr. Vaugh Conrad, PSO P.

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Box 201 Tulsa, Oklahoma 74102 n

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