ML19254E411

Response in Opposition to Applicant Motion for Commission Hearings.Urges ASLB Forestall Issues Concerning TMI-2, Publication of Results of Kemeny Commission & Rogovin Special Inquiry.Certificate of Svc Encl

ML19254E411
Person / Time
Site:	Black Fox
Issue date:	09/20/1979
From:	Farris J CITIZENS ACTION FOR SAFE ENERGY, FELDMAN, HALL, FRANDEN, REED & WOODWARD
To:	NRC COMMISSION (OCM)
References
NUDOCS 7911010059
Download: ML19254E411 (10)

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NRC PUBLIC DOCUMEg ROW g b

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UNITED STATES OF AMERICA g

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e Before the Commission ca 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 Station, Units 1 and 2) )

INTERVLdOR'S RESPONSE TO APPLICANT'S MOTION FOR COMMISSION ACTION In light of the Ccanission's holding in United States Energy Research and Development Administration (Clinch River Breeder Reactor Elant), CLI-76-13, 4 NRC 67, 74-76 (1976),

there appears little doubt that the commission considers itself authorized to intercede in an adjudicatory proceeding to exercise its supervisory authority. Surely, though, the Commission would agree such action on its part is extraordinary and the movant must show exceptional circumstances to warrant circumvention of the adjudicatory process. Otherwise, it would quite obviously follow that the Commission would find itself confronted with a request for its intercession every time a litigant receives an adverse ruling from an ASLB panel. However, having said that such motions as the instant one should only be entertained rarely, Interventors would agree with Applicants 1282  :

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that this may indeed be a situation that justifies the Commission's intercession -- albeit to provide direction to the Board contrary from that requested by Applicants.

Certainly the Three Mile Island Unit Two ( " TMI- 2 " )

accident, as the worst nuclear accident in history, has presented important issues of law and policy for the NRC.

The mere existence of the Kemeny and Rogovin inquiries are

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evidence enough o1 thi.s. And, the obvious question for the NRC that emerges from TMI-2 is: What impact does ,Jr should) such an incident have on the licensing process?

Applicants apparently would have the Commission find at this juncture that simple technical issues are all that are at stake and these, of course, will be worked out well before Black Fox , Station (BFS) goes on line. Indeed, Appli-cants say they will ultimately be required to comply with whatever new requirements may result from TMI-2 anyway, so why not let them go ahead and build BFS now? The fault with such reasoning is, quite clearly, -hr.c it assumes neither (1) any recommendations for sweeping changes in the licensing process (contrary to the Kemeny Commission's public proj ect_ans) ,

nor (2) any recommendations for basic, conceptual design changes in the NSSS for BFS which couldn' t be readily "back-fitted".

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Applicants would downplay the significance of TMI-2.

Yet, in at least one other proceeding 1, the Staff has characterized TMI-2 as a Class 9 accident -- the accident that is not supposed to happen. Current regulations provide that Class 9 accident sequences need not be considered in considering a plants design in making radiological health and safety findings. Is it presumptuous to suggest, then, that one recommendation by either the Kemeny Commission or Rogovin Special Inquiry might be that the NRC should con-sider possible Class 9 accident sequences? If not, then granting BFS a Construction Permit (CP ) without such analyses when only a couple of months' delay are at stake hardly seems oppressive.

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1. In the matter of Public Service Electric & Gas Company (Salem Generating Station Unit No.1) , No.

50-272 "NRC Staff Response to Board Question No. 4, Regarding the occurrence of a Class 9 accident at Three Mile Island."

2. Proposed Annex 1 to App. D of Part 50, 10 C.F.R.

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3 As Intervenors pointed out in their pleading filed with the ASLB, Applicant's desire to complete hearings on TMI-2's relevancy assumes that the Kemeny and Rogovin results will be insignificant. Intervenors submit that the Commission should recognize these investigations as serious attempts to

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improve the safety of nuclear plants and to give due credit to the members of each group as scientists and policy makers charged with important responsibilities. To extend such courtesy and respect to these inquiries would surely enhance the dignity aid autonomy of the NRC, not detract from it as

. Applicant suggests (Br. p.13)

As to the length of delay that mighe eventuate should the moratorium be. extended, Applicants again second-guess the Kemeny Ccmmission and submit that it will ;nt meet its own schedule for issuance of a report. And then, heaping insult on injury, Applicants grab a two-year time period out ef thin air for the report to be " digested and implemented" by the President. Intervenors would take these ladies and gentlemen at their word as to publication of their report and submit that the Commission could make its own evaluation

3. Intervenor's Response to Applicant's Motion to Establish Hearing Schedule, August 27, 1979.

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of the report at that. time, regardless of what recommendations the President might ultimately make. 4 At least at that time, however, the Commission would be able to establish the

" upper bounds" of any potential recommendations and be able to intelligently decide whether there is a basis for con-tinued licensing which could accommodate such recommendations should they be implemented. To proceed.with licensing now only invites later confusion, requests for "grandfathering",

and back-fitting.

Intervenors find it ironic that Applicants, ever solicitous of the ratepayers' interest, apparently are unconcerned with the cost to these ratepayers if wholesale back-fitting had to be performed if significant new requirements were forthcoming

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as the result of TMI-2 investigations. Indeed, requirements could conceivably be made which would cause Applicants to decide against a nuclear powered plant in the first place.

As the Commission pointed out in Clinch River, supra, it was the spectre of unnecessary delay which warranted its intercession in that proceeding. Intervenors contend here that the Commission's direction to the ASLB is needed to order necessary delay -- delay, that is until the results of

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4. It could very well be that no new recommendations -- i.e. ,

different from the Staff's present short-term recommendations

-- will be forthcoming. In such event licensing could resume immediately on the basis of the Staff's recommenda-tions.

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the Kemeny Commicsion and Rogovin Special Inquiry are avail-able for consideration by the Commission and the ASI3, and upon which recommendations may be implemented and findings can be made to further enhance the public's health and safety.

Nor is it clear (as Applicants suggest) that the NRC Staff universally supports a return to licensing at 'this time. In a memorandum transmitting NUREG-0600 (" Notification of Licensing Boards of Results of Investigation into the March 28, 1979 Three Mile Island Accident by Office of Inspec-tion and Enforcement"), the Director, Division of Reactor Operations Inspection, I.E., observed that (flurther study is clearly needed with respect to the contributions of various other organizations that in-fluence the " operation of nuclear power plants, in-cluding designers, reviewers, builders, vendors and regulatory agencies. These various studies are now underway; most notably the Presidentially appointed Kemeny Commission, as well as a wide-ranging internal NRC study under Mr. Mitchell Rogovin. A full assess-ment of all the underlying causes of the Three Mlle Island accident must await ccmpletion of these studies.

(Emphasis supplied.]

Certainly the Commission does not have to accede to the so-called " demand" by the K( ..eny Commission that the moratorium on licensing be extended. However, the Commission should resist Applicant's blatant attempt to make this controversy a matter of pride with the Commission. Such attempt should be resisted, if for no other reason than respect for the 1282 2' 6

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credentials of the Kemeny Commission's members and out of deference to 'the authority whose charge created it. Appli-caats assume no " compensating benefit" will derive from awaiting further input from these investigations. Perhaps so. But Intervenors would give them the benefit of any

~ doubt and respectfully submit and urge that this Commission do likewise.

Intervenors therefore respectfully request that che Commission deny Applicants' Motion in its entirety, and instead direct the Black Fox Licensing Board to forestall hearings on TMI-2 related issues until the results of the Kameny Commission and Rogovin Special Inquiry are published and until the Commission gives furrher guidance on the scope

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of hearings af ter these reports are available.

Respectfully submitted, FELDMAN, HALL, FRANDEN, REED & WOODARD

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By seph R. Farris orneys for Intervenors 816 Enterprise Building Tulsa, Oklahoma 74103 (918) 583 7129 September 20, 1979

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of the Application of )

Public Service Company of Oklahoma, )

Associated Electric Cooperative, Inc. )

and )

Westr,rn Farmers Electric Cooperative ) Docket Nos.

) STN 50-556 (Black Fox Units 1 and .2) ) STN 50-557 CERTIFICATE OF SEPVICE I, Joseph R. Farris, one of the attorneys for Citizens Action for Safe Energy (C . A. S . E . ) , certify that copies of the following:

Intervenor's Response to Applicant's Motion for Commission Action have been served'on the persons shown on the attached list by United States Mail, postage prepaid, this 20th day of September , 1979.

C e oseph R. Farris e,

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Chairman Joseph M. Hendrie L. Dow Davis, Esq.

United States Nuclear Office of the Executive Legal Direc Regulatory Commission United States Nuclear Regulatory Washington, D. C. 20555 Commission Washington, D.C. 20555 Commissioner Richard T. Kennedy United States Nuclear Richard S. Salzman, Esq.

Regulatory Commission Atomic Safety and Licensing Washington, D. C. 20555 Appeal Board United States Nuclear Commissioner Victor Gilinsky Regulatory Commission United States Nuclear Washington, D. C. 20555 Regulatory Commission Washington, D. C. 20L55 Dr. W. Reed Johnson Atomic Safety and Licensing Commissioner Peter A. Bradford Appeal Board Panel United States Nuclear United States Nuclear Regulatory Commission Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Commissioner John F. Ahearne Jerome E. Sharfman, Esq.

United States Nuclear Atomac Safety and Licensing Regulatory Commission Appeal Board Panel Washington, D. C. 20555 United States Nuclear Ragulatory Commission Stephen S. Ostrach Washington, D. C. 20555 Office of the General Counsel United States Nuclear Docketing and Service Section Regulatory Commission Office of the Secretary of the Washington, D. C. 20555 Commission United States Nuclear Sheldon J. Wolfe, Esq. Regulatory Commission Atomic Safety and Licensing Washington, D. C. 20555 Board Panel (20 copies)

United States Nuclear Regulatory Ccmmission Atomic Safety and Licensing Washington, D.C. 20555 Board Panel United States Nuclear Mr. Frederick J. Shon Regulatory Commission Atomic Safety and Licensing Washington, D. C. 20555 Board Panel United States Nuclear Atomic Safety and Licensing Regulatory Commission Appeal Board Panel Washington, D.C. 20555 United States Nuclear Regulatory Commission Dr. Paul W. Purdom Washington, D. C. 20555

Director, Environmental Studies Group Mr. Clyde Wisner Drexel University NRC Region 4 32nd and Chestnut Streets Public Affairs Officer Philadelphia, Pennsylvania 19104 611 Ryan Plaza Drive Suie 1000 Arlington, Texas 76011 1282  :

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Andrew T. Dalton, Esq. Mr. Vaughn L. Conrad Attorney at Law Public Service Company of Oklahoma 1437 South Main Street P.O. Box 201 Room 302 Tulsa, Oklahoma 74102 Tulsa, Oklahoma 74119 Mr. T. N. Ewing Mrs. Ilene Younghein Public Service Company of Oklahoma 3900 cashion Place P. O. Box 201 Oklahoma City, OK 73112 Tulsa, Oklahoma 74102 Mrs. Carrie Dickerson Hon. Charles Rogers Citizens Action for Assistant Attorney General Safe Energy State of Oklahoma P. O. Box 924 State Capitol Building Claremore, Oklahoma 74017 Oklahoma City, Oklahoma 73105 Joseph Gallo, Esq. Mr. Gregory Minor Isham, Lincoln & Beale MHB Technical Associates 1050 17th Street, N.W. 1723 Hamiton Ave.

Washington, D.C. 20036 Suite K San Jose, CA 95125 Martha E. Gibbs Michael I. Miller Samuel J. Chilk Isham, Lincoln & Beale Secretary of the Commission One First National Plaza, United States Nuclear Suite 4200 Regulatory Commission Chicago, Ill. 60603 Washington, D.C. 20555 Mr. Maynard Human' General Manager Western Farmers Electric Cooperative P. O. Box 429 Anadarko, Oklahoma 73005 l282 '

Mr. Gerald F. Diddle Associated Electric Cooperative, Inc.

P. O. Box 754 Springfiela, Missouri 65801 Mr. Lawrence Burrell Rt. 1, Box 197 Fairview, Oklahoma 73737 Dr. M. J. Robinson Black & Veatch P. O. Box 8405 Kansas City, Mo. 64114