ML19276H486

Response in Opposition to Applicants' 791015 Suggestion of Hearing Schedule.Applicant Failed to Show That near-term Hearings Should Be Held.If Schedule accepted,long-term TMI-2 Issues Should Be Heard.Certificate of Svc Encl

ML19276H486
Person / Time
Site:	Black Fox
Issue date:	10/30/1979
From:	Cartwright J, Rogers C OKLAHOMA, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 7911290015
Download: ML19276H486 (9)

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NRC PUBLIC UULLEM M ,[ Q

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UNITED STATES OF AMERICA j- ?g ff T_ ,

NUCLEAR REGULATORY COMMISSION  !-  :. .

Before the Atomic Safety and Licensing Board }~f

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_xs In the Matter of the Application )

of Public Service Company of )

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

Western Farmers Electric )

Cooperative )

(Black Fox Station, Units 1 and 2)

RESPONSE BY STATE OF OKLAHOt*3 TO APPLICANTS' SUGGESTION OF HEARING SCHEDULE COMES NOW the State of Oklahoma (Oklahoma) partici-pant in the above-captioned proceeding as an Interested State pursuant to 10 CFR S 2.715(c), and makes response to the SUGGESTION OF HEARING SCHEDULE filed by Public Service Company of Oklahoma, Associated Electric Cooperative, Inc.,

and Western Farmers Electric Cooperative, (referred to herein collectively as " Applicants").

I. ALLEGED "MOOTNESs" OF CONTROVERSY CONCERNING HEARING SCHEDULE 1

Applicants' assert that for various reasons the controversy between Applicants, Intervenors and Oklahoma 1

Applicants' " Suggestion of Hearing Schedule", filed October 15, 1979, p. 1. It is interesting to note that in support of their assertion that the controversy is now moot they attach, as " Exhibit A", a copy of a transcript of the October 4, 1979 meeting of the NRC Commission wherein the Commissiot ers discussed the 1424 240 7 9112 9 0 C) ( 55

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concerning the scheduling of additional hearings is now moot. It should be noted, however, that the Interim Statement of Policy and Procedure (Interim Policy), issued October 5, 1979, does not mandate the immediate return to hearings before the various long term studies are complete, but only states that it is permitted to resume having hearings so long as no licenses are issued by the Boards. It has never been the position of Oklahoma that the instant Board had no power to schedule hearings solely on the short term significance of the TMI-2 accident, but rather it has been our position that it is imprudent (continued)

" Interim Policy" of the Commission regarding licensing procedure. Normally attached to such transcripts is a disclaimer on page one that says in relevant part:

"The transcript is intended solely for general informational purposes. As pro-vided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed. Expressions of opinion in this transcript do not neces-sarily reflect final determination or beliefs. No pleading or other paper may be filed with the Commission in any pro-ceeding as the result of or addressed to any statement or argument contained herein, except as the Commission may authorize."

Oklahoma has no knowledge whether in fact a dis-claimer appears at page one of the instant trans-cript because page one was emitted from the copy provided as Exhibit A. Surely, if such a dis-claimer is so attached, Applicants could not 1424 ?41

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for it to do so at this time due to the relative proximity of the issuance of reports dealing with the long term significance of the event.3 As we noted in our " Response" on August 27, 1979, it is Applicants' burden as movant to show the action requested is in the Public Interest. Applicants supported the motion now under consideration with facts supporting a showing that the licensing process was resuming and that NRC staff review of the TMI-2 accident would be complete upon the issuance of SER No. 3. They appar-ently believe that satisfaction of various "short term" actions is all that block them from the receipt of their Construction Permit. The Interim Policy, on its face, does 1 (continued) mean for the Board to use the transcript for

" legislative history" of the new policy in conflict with the stated purpose of the trans-cripts to be generally informational, not .

substantive. Therefore, absent an expressed authorization from the Commission to use the comments reflected in the transcript as

" legislative history", Oklahoma submits Applicants improperly rely on said comments, and we hereby object.

See, " Response of Interested State of Oklahoma to Applicants' Request for Hearing and Motion to Establish Hearing Schedule," filed August 27, 1979.

3 As to the Kemeny Commission report, the issue may well be moot due to the fact that said repo':t is expected to be issued this week.

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not support that view. It notes that ".significant changes" may be forthcoming in the Commission's regu-latory policy and procedures regarding licensing nuclear power facilities. It also states that Construction Permits will not be issued without further action by the Commission itself. Consequently, the sole ground given for scheduling hearings before the long term studies are completed, i.e. ripeness of the short term issues for review is reduced in importance to Applicants because short term issue satisfaction will not necessarily terminate the Construction Permit phase.

In summary, Oklahoma submits that the controversy is not moot, that Applicants have the burden of showing that hearings should be scheduled in the near-term, that they have failed to meet that burden and that scheduling of hearings should be deferred until the long term studies are available. .

II. SCHEDULING HEARINGS The significance to nuclear regulation of the acci-dent last March at TMI-2 need not be emphasized. The fact of the many official inquiries and the fact of the anprece-dented moritorium on licensing of facilities sufficirntly underscore the impact of the event. Prior to resuming operation of the undamaged TMI-1 unit, the Commission ordered that hearings be held on certain states issues.

See notice, 44 Fed. Reg. 47821 et seg. Significantly,

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the Commission provided in the aforesaid notice that the ASLB should entertain petitions to l'ntervene by persons affected by the proceedings. Oklahoma would, therefore, suggest that prior to holding hearings on TMI-2 issues, it would be appropriate for the Board to order that notice be published providing that petitions to intervene filed by persons legally interested in the litigation of the TMI-2 related issues would be enter-tained. The suggested schedule for hearings should be adjusted to permit the publishing of notice and time to petition.

If the Board decides that it should grant Appli-cants' motion to schedule hearings on an expedited basis, it is suggested that in making such a ruling the Board should provide at the same time for the. later identifi-cation and litigation of long term issues raised by TMI-2 prior to the issuance of a construction permit. -

CONCLUSION In summary, Oklahoma would submit the " Interim Policy" of the Commission does not detract from the discretion the Board has always possessed to schedule hearings on TMI-2 issues. Should the Board decide to hold such hearings in the near-term, it should at the same time provide in its order that long term issues

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raised by the accident at TMI-2 will b6 identified and litigated following the issuance of the reports of the various investigating bodies. Further, and in either case, the Board should decide whether it is appropriate to require notice to be published of the Board's intention to entertain petitions to intervene in this proceeding in order to permit maximum participation by legally interested persons on the TMI-2 issues.

Respectfully, JAN ERIC CARTWRIGHT A "' D"E GENERAL OF OKLAHOMA

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HARLES S. ROGERS ASSISTANT ATTORNEY GENERAL 112 State Capitol Building Oklahoma City, Oklahoma 73105 (405) 521-3921 ATTORNEYS FOR THE STATE OF OKLAHOMA

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CERTIFICATE OF. SERVICE I hereby certify that service has been on this day effected by personal delivery or first class mail on the following:

Sheldon J. Wolfe, Esq.

Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washingtoc, D.C. 20555 Mr. Frederick J. Shon, Member Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Paul W. Purdom Director, Environmental Studies Group Drexel University 32nd and Chestnut Streets Philadelphia, Pennsylvania 19104 L.'Dow Davis, Esq.

William D. Paton, Esq.

Colleen Woodhead, Esw.

Counsel, Nuclear Regulatory Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Clyde Wisner NRC Region 4 Public Affairs Officer 611 Ryan Plaza Drive, Suite 1000 Arlington, Texas 76011 Joseph R. Farris, Esq.

John R. Woodard, III, Esq.

Green, Feldman, Hall & Woodard 816 Enterprise Building Tulsa, Oklahoma 74103 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 1424 ?46

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• Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary of the Commission Washington, D.C. 20555 Mrs. Ilene H. Youngheim 3800 Cashion Place Oklahoma City, Oklahoma 73112 Mr. Lawrence Burrell Route 1, Box 197 Fairview, Oklahoma 73737 Mr. Gerald F. Diddle General Manager Associated Electric Cooperative P.O. Box 754 Springfield, Missouri 65801 Mr, Glenn E. Nelson, Esq.

Mr. Michael I. Miller, Esq.

Isham, Lincoln and Beale One First National Plaza Chicago, Illinois 60603 Mr. George L. Edgar, Esq.

Mr. Kevin P. Gallen, Esq.

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

Washington, D.C. 20036 Mr. Vaughn L. Conrad Public Service Company of Oklahoma P.O. Box 201 Tulsa, Oklahoma 74102 Mr. T. N. Ewing, Acting Director Black Fox Station Nuclear Project Public Service Company of Oklahoma P. O. Box 201 Tulsa, Oklahoma 74102 1424 ?47

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Mrs. Carrie Dickerson Citizens Action for Safe Energy, Inc.

P.O. Box 924 Claremore, Oklahoma 74107 Mr. Maynard Human General Manager Western Farmers Electric Cooperative P.O. Box 429 Anadarko, Oklahoma 73005 Dr. M. J. Robinson Black and Veatch P. O. Box 8405 Kansas City, Missouri 64114 Mr. Joseph Gallo, Ms. Sarah F. Holzsweig Isham, Lincoln & Beale 1050 17th Street Washington, D.C. 20036 Mr. Andrew T. Dalton, Esq.

1437 S. Main Street, Suite 302 Tu1sa, Oklahoma 74119 Mr. Greg Minor MHB Tech. Assoc.

1723 Hamilton Avenue Suite K San Jose, CA 95125

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Response by State of Oklahoma to Apo icants' Suggestion of Hearing Schedule mailed this Th>

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day of October, 1979.

• harles S. Rogers (

Assistant Attorney General 4'{4 }kb