ML19224C817
| ML19224C817 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 05/31/1979 |
| From: | Gallo J, Gibbs M ISHAM, LINCOLN & BEALE |
| To: | |
| References | |
| NUDOCS 7907060503 | |
| Download: ML19224C817 (16) | |
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UNITED STATES OF AMERICA I
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NUCLEAR REGULATORY COMMISSION 9- TMg*"
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Before the Atomic Safety and Licensing Board 4 j A D)
In the Matter of the Application of )
Public Service Company of Oklahoma, )
Associated Electric Cooperative, Inc. ) Docket Nos. STN 50-556 and ) STN 50-557 Western Farmers Electric Cooperative )
)
(Black Fox Station, Units 1 and 2) )
APPLICANTS' REPLY TO NRC ST?TF'S ANSWER The Attorney General for the State of Oklahoma
(" Attorney General")1./ and Citizens' Action for Safe Energy, Lawrence Burrell and Ilene Younghein ("Intervenors") 2/ have filed separate requests for relief seeking, respectively, a stay in the issuance of the partial initial decision and a reopening of the record on certain issues. Public Service Company of Oklahoma ("PSO") , Associated Electric Cooperative, Inc. and Western Farmers Electric Cooperative (" Applicants")
have answered both of those pleadings.1/ On May 18, 1979, the 1/ " Motion of the State of Oklahoma for an Indefinite Stay in the Issuance of an Initial Decision in the Above-Captioned Proceeding," April 19, 1979.
2/ " Response to Motion of the State of Oklahoma for an Indefinite Stay in the Issuance of an Initial Decision in the Above-Captioned Proceeding," April 27, 1979.
3,/ " Applicants' Answer to the Motion of the Attorney General for the State of Oklahoma for an Indefinite Stay of the Issuance of an Initial Decision," May ll, 1979. "Appli-cants' Peply to Intervenors' Response of April 27, 1979,"
May 18, 1979. r c 2 eya ; 83 29020co6bes
NRC Staf f filed its " Answer to State of Oklahoma's Motion for Indefinite Stay on Isauance of an Initial Decision and Intervenors' Motion to Reopen the Record." By motion of May 21, 1979, Applicants requested permission from this Atomic Safety and Licensing Board (" Licensing Board") to file a reply to the NRC Staff's answer. That motion was granted by Order dated May 22, 1979. Applicants hereby file this reply opposing the grant of the relief sought by the NRC Staff.
The NRC Staff requests a " delay" or " deferral" of the decision on the question of reopening P.he record for the Three Mile Island and post-accident monitoring issues.1/
This relief must be denied for two reLsons. First, the legal test set out by the NRC Staff to justify such a course of action has not been met. Second, the NRC Staff misappre-hends its duty to the Licensing Board in a Nuclear Regulatory Commission ("NRC" or the " Commission") proceeding under the doctrine enunciated in Duke Power Company (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AEC 623 (1973).
4/ NRC Staff Answer at 9-10.
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I. THE NRC STAFF HAS SHOWN NO JUSTIFICATION FOR A DELAY OR DEFERRAL OF THE LICENSING BOARD'S DECISION The NRC Staff analyzes the motions of the Attorney General and Intervenors and concludes tnat both requests for relief should be judged by the standards for reopening the record set forth in Vermont Yankee Nuclear Power Corp.
(Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520 (1973). This is explained by stating that if the Attorney General and Intervenors do not meet the legal requirements to reopen, a stay would serve no useful purpose. While in agreement that Vermont Yankee provides the correct test for passing upon Intervenors' request to reopen the record, Applicants take issue with the use of Verment Yankee to judge the Attorney General's motion for a stay of the par-tial initial decision. The error of applying Vermont Yankee to decide a stay motion is obvious, for how can one decide today whether or not a particular matter involves a signifi-cant safety issue when the purpose of the requested delay is to obtain time to decide that very question.b[
However, even accepting the NRC Staff's legal analysis, it is apparent that the NRC Staf f 's request for relief does not meet its own legal standard. Vermont r
& 1' 3 187 5/ As Applicants pointed out in their Answer to the Attorney General's Motion, a request for a stay of the proceedings should be judged by the criteria set forth in Landis v.
North American Company, 299 U.S. 248 (1936).
_4_
Yankee, as the NRC Staff acknowledges, requires a showing of a serious new environmental or safety concern in order to warrant reopening the record. The NRC Staff has made no such showing concerning Three Mile Island or post-accident monitoring.
That this lack of an adequate showing means that the NRC Staff's request for a delay must be denied is made clear in its appraisal of the Attorney General's and Inter-venors' motions regarding financial qualifications. The NRC Staff opposes this aspect of those motions because there was no showing that inflation, construction delays, or the impacts of Three Mile Island on the financial community would have an effect on Black Fox.5/ As the NRC Staff points out, the argument that the Licensing Board should stay the issuance of the initial decision on the chance that hearings which may be held by the Oklahoma Corporation Commission may raise new information about financial quali-fications can only be termed speculative.1[ A consideration of the possible impacts of Three Mile Island on financial qualifications was also found to be speculative by the NRC Staff.E/ For these reasons, the NRC Staff concluded that the motions did not meet the requirements of Vermont Yankee and should be denied 6/ NRC Staff Answer at 4-5.
7/ Id. at 5. 295 1ga 8/ Id. at 7.
without prejudice to raising the matter again if the State's hearings or the Staff's re-review of the new financial data sub-mitted by Applicants establishes solid evidence which could be shown to have a realistic effect on changing the financial qualifications status of the Applicants.9/
Given the reasons articulated by the NRC Staff for opposing a stay of the proceedings or a reopening of the financial qualifications' issue, it is inexplicable that the NRC Staff would ignore these same arguments in connection with the Three Mile Island matter. Under the Staff's legal theory, the Vermont Yankee strictures must be met -- not ignored -- in order to justify its request that the Licensing Board delay its decision on the question of reopening the record on the Three Mile Island and post-accident monitoring issues pending the NRC Staff's review to determine whether those issues require supplementation or correction of the Black Fox record.1S/ Significantly, however, the NRC Staff does not attempt to make a showing of any connection between Three Mile Island and Black Fox. Indeed, the NRC Staff 9/ Id.
10/ I_d_ . at 9-10. This delay or deferral of the Licensing Board's decision, under the NRC Staff's legal theory, is equivalent to a motion to reopen the record because, as the NRC Staff says with respect to the Attorney General's and Intervenors' motions, "if they do not meet the legal requirements to reopen, then a stay would serve no useful purpose." Id. at 4. Similarly, if the NRC Staff cannot show a connection between Three Mile Island and Black Fox which warrants reopening the record, there can be no reason to delay or defer the decision.
295 iB?
states that:
[T]he situation at TMI can be distinguished in several different ways from Black Fox in terms of the type of reactor inder review, the stage of completion of TM1 versus Black Fox and the intervening construction time p/ eriod between and operation.ll These differences cannot be easily dismissed.
As Applicants have explained in their responses to the Attorney General's and Intervenors' motions, there are sig-nificant design differences between the pressurized water reactor involved in the Three Mile Island accident and the boiling water reactors which will be used at the Black Fox Station.12/ Similarly, the fact that this is a construction permit proceeding also serves to differentiate Black Fox from Three Mile Island.13/
The NRC Staff believes apparently that in the discharge of its regulatory responsibilities "a reasoned review" of the Three Mile Island accident is needed to determine if any of the lessons learned have any application to Black Fox. Such a review is to be expected and Applicants do not take issue with the Staff's perception of its regulatory responsibilities. However, Applicants do take issue with 11/ Id. at 8.
12/ See Applicants' Answer to the Motion of the Attorney General at 14-15 and Applicants' Reply to Intervenors '
Response at 12.
--13/ See Applicants' Answer to the Motion of the Attorney General at 15 and Applicants' Reply to Intervenors' Response at 12-13. n
<95 l90
the notion that this proceeding must come to a standstill pending the Staff's review. While a review of the situation may be a prudent course in the discharge of its responsi-bilities, the NRC Staff must offer more to justify a stay in this proceeding. Ignoring the legal standard it enunciated, the NRC Staff points to no specific and significant safety problem associated with Three Mile Island that might argu-ably exist with respect to Black Fox.
In addition to the fact that a delay of the decision on the question of reopening the record is not technically justified, this relief is not necessary for the reasons recognized by the NRC Staff in its responze to the Attorney General's motion. The NRC Staff pointed out that motion- to the Licensing Board to _econsider or reopen because of safety related issues could be made under 10 C.F.R. 5S2.771 or 2.730. If the matter were no longer pending before the Licensing Board, the Atomic Safety and Licensing Aopeal Board (" Appeal Board") or the Commission could, on the basis of their sua sponte review powers, or on the motion of the NRC Staff, consider all issues which have a bearing on the safety of the plant. 10 C.F.R. S2. 785 (b) (2) . If the con-struction permit had issued, the NRC Staff could issue an order under 10 C.F.R. S2.202 modifying or amending the license to incorporate any lessons learned from its Three Mile Island review. Consequently, there is no warrant to 295 l77
halt the proceeding at this time while the NRC Staff deter-mines whether or not any connection exists between Three Mile Island and Black Fox. If and whLn that connection is demonstrated, the NRC Staff can take appropriate action under the NRC's Rules of Practice.
Another faccor which should be considered in evaluating the NRC Staff's request that this Licensing Board defer its decision on the pending motions is the amcunt of time involved. The NRC Staff states that it will conduct a review to determine whether oupplementation or correction of this record is necessary because of Three Mile Island, and suggests that the review will take approximately 30 days.
If that review is not completed within 30 days, however, "the NRC Staff will inform the Board and parties of the proposed schedule of review at that time."ld/ Applicants believe that this request for a 30-day delay is only the tip of the iceberg. The casual manner adopted by the NRC Staff with respczu to developing a dispositive position on emer-gency core coelir.g system matters would seem to indicate the very real possibility of a prolonged delay that could extend the Licensing Board's decision-making process for months.
Su?h a delay would be unfair to both Applicants and the public intere ., and would take unwarranted liberties with the princi" ;s of administrative due process.15/
295 :olLo I
14/ Id. at 9.
15/ See Applicants' Answer to the Motion of the Attorney General at 10-12.
II. THE NRC STAFF ERRED IN INTERPRETING ITS DUTY UNDER THE McGUIRE DOCTRINE The only reason advanced by the NRC Staff to support its request for a delay or deferral of a decision on the question of reopening the record is the following statement:
It is well settled that the NRC Staff is under a legal obligation to keep the Licensing Board, Appeal Board and Commir-sion apprised of the status of relevant and material safety mat rs.16/
This statement, in turn, is supported by a citation to McGuire, ALAB-143, supra. An examination of McGuire ar.d its progeny, however, reveals that the NRC Staff has trans-formed the duty imposed upon all parties to inform NRC tribunals of new informatien and changing circumstances which may bear upon their cases into an expanded obligation which would reauire the NRC Staff to review and analyze the subject of the notification, and report the results of that analysis to the Licensing Board before the hearing process could continue. This is an erroneous interpretation of McGuire.
The Appeal Board in McGuire laid down the follow-ing general rule:
In all future proceedings, parties must inform the presiding board and other parties of new information which is rele-vant and material to the matter being adjudicated.12/
20r
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16/ NRC Staff Answer at 9 (footnote omitted). /h3 17/ 6 AEC at 625.
This principle was reiterated by the Appeal Board in Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
ALAB-355, 4 NRC 397 (1976), in which the duty was expressed as follows:
It cannot be overemphasized that it is of utmost importance for parties to keep the board abreast of changing circum-stances bearing on their cases.18/
That this duty is a duty to report was made explicit by the Appeal Board in Georgia Power Company (Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB-291, 2 NRC 404 (1975).
The Appeal Board stated:
The staff itself has readily acknowledged that McGuire establishes no more than a reporting requirement: as previously seen, it imposes a duty upon the parties to a still uncompleted licensing proceeding to bring to the attention of the appropriate tribunal -- the Licensing Board or the appeal Board as the case may be -- 'the new information which is relevant and material to the matters being adjudicated.'19/
Significantly, in Vogtle the Appeal Board denied the NRC Staff 's motion to reopen the record in order to consider newly evolved generic safety concerns which were applicable to the reactors under consideration. The Appeal Board reasoned that the NRC Staff had discharged any obliga-tion it had under McGuire by bringing the information to the attention of the Appeal Board.20/ Because the emergence of
--18/ 4 NRC at 406 n.26. o 7 c 9J jgg 19/ 2 NRC at 411 (emphasis supplied). -
20/ Id.
new generic safety concerns did not amount to the kind of extraordinary development which would warrant reopening the record under Vermont Yankee, however, the Appeal Board declined to do so.21/ It should also be noted that in reaching this decision the Appeal Board emphasized that a construction permit proceeding was involved; thus, taere would be enough time for the issues to be resolved at the operating license stage.22/
After considering McGuire, Catawba and Vogtle, it is obvious that the NRC Staff's only duty under those deci-sions is to report the new information to the Licensing Board. In this case, the events at Three Mile Island have been fully disclosed to the Licensing Board and parties through board notification reports. The NRC Staff has thus discharged its duty, and that party cannot use the possible existence of generic safety concerns based on its continuous review of Three Mile Island and other matters (which may or may not be applicable to Black Fox) cs an excuse to stop this proceeding in its tracks. As Applicants have shown, the NRC Staff's investigation of Three Mile Island can go forward, and any lessons learned can be factored into the Black Fox Station, without any need for this Licensing Board to delay its decision ca the question of reopening the record or to stay issuance of the partial initial decision.
21/ Id. at 413. tp
]J ,
j '9 O" 22/ Id. at 412-13.
III. IF THE LICENSING BOARD RULES AGAINST APPLICANTS ON ANY OF THE PENDING MOTIONS, THAT RULING SHOULD BE REFERRED TO THE APPEAL BOARD The Commission's Rules of Practice provide that a Licensing Board may refer a ruling to the Appeal Board when, in the Judgment of the Licensing Board, a " prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense."23/ Applicants believe that, should the Licensing Board rule against them on any of the pending motions to stay the partial initial decision, to reopen the record or to delay deciding those motions, it would be appropriate for that ruling to be referred to the Appeal Board. Not only would an adverse ruling be detri-mental to the public interest in having a prompt decision on the license application,21/ the resultant delay would be injurious to Applicants, for they, too, are entitled to a prompt decision.25/
Furthermore, referral is warranted because the instant situation meets not only the requirements of 10 C.F.R. S2. 730 (f) , but also the guidelines established by the Appeal Board for determining when it will undertake discre-tionary interlocutory review. As the Appeal Board explained 23/ 10 C.F.R. S2. 730 (f) .
24/ Allied-General Services (Barnwell Nuclear Fuel Plant Separations Facility), ALAB-296, 2 NRC 671 (1975).
25/ Id.
295 i96
in Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977), such review has been undertaken only where the ruling below:
either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a perva-sive or unusual manner. (footnote omitted)
The grant of any of the pending motions by the Licensing Board would affect the basic structure of the proceeding in a pervasive and unusual manner. In addition to the fact that the delay would be pervasive it would also be unusual, for to date there have been no Licensing Board decisions granting motions to stay, reopen or delay due to the Three Mile Island accident. In the circumstances, a referral to the Appeal Board would serve to clarify the Ccmmission's policy regarding the impact of Three Mile Island on pending license applications. For these reasons, Applicants request this Licensing Board to refer any adverse ruling to the Appeal Board.
CONCLUSION For the reasons set forth above, the motion of the NRC Staff to delay or defer this Licensing Board's decision bI
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on the issue of reopening the record must be denied.
If any of the pending motions are decided adversely to Applicants, that ruling should be referred to the Appeal Board.
)Ci> 0 Mbb Joseph Gallo1 OT h6 L -- O}
Martha E. Gibbs Attorneys for Applicants ISHAM, LINCOLN & BEALE 1050 17th Street, N.W.
Seventh Floor Washington, D.C. 20036 202/833-9730 ISHAM, LINCOLN & BEALE One First National Plaza - 4200 Chicago, Illinois 60603 312/558-7500 May 31, 1979
- d. . a, 193
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.) Docket Nos. STN 50-556 and ) STN 50-557 Western Farmers Electric Cooperative )
)
(Black Fox Station, Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing APPLICANTS' REPLY TO NRC STAFF'S ANSWER has been served on each of the following persons by deposit in the United States mail, first-class postage prepaid, this 31st day of May, 1979.
Sheldon J. Wolfe, Esq. Docketing and Service Section Atomic Safety and Licensing Office of the Secretary of the Comn.
Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comn. Washington, D.C. 20555 Washington, D.C. 20555 (20 copies)
Mr. Frederick J. Shon, Member Atomic Safety and Licensing Atomic Safety and Liclnsing Board Panel Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comn. Washington, D.C. 20555 Washington, D.C. 20555 Atomic Safety and Licensing Dr. Paul W. Purdom, Dirr cor Appeal Board Panel Environmental Studies Group U.S. Nuclear Regulatory Commission Drexel University Washington, D.C. 20555 32nd and Chestnut Streets Philadelphia, PA 19.' ,4 Mr. Gerald F. Diddle, General Mgr.
Associated Electric Cooperative, Inc.
L. Dow Davis, Esq. P O Box 754 William D. Paton, Esq. Springfield, Missouri 65801 Colleen Woodhead, Esq.
Counsel for NRC Staff Mr. Maynard Human, General Manager U.S. Nuclear Regulatory Comn. Western Farmers Electric Cooperative Washington, D.C. 20555 P O Box 429 Andarko, Oklahoma 73005
/95 199
Joseph R. Farris, Esq. Mr. Vaughn L. Conrad John R. Woodard III, Esq. Public Service Company of Oklahoma Green Feldman Hall & Woodard P O Box 201 816 Enterprise Building Tulsa, Oklahoma 74102 Tulsa, Oklahoma 74103 Mr. T. N. Ewing, Manager Mr. Clyde Wisner Black Fox Station Nuclear Project NRC Region 4 Public Service Company of Oklchoma Public Affairs Officer P O Box 201 611 Ryan Plazc Drive - 1000 Tulsa, Oklahoma 74102 Arlington, Texas 76011 Mr. M. J. Robinson Andrew T. Dalton, Psq. Black & Veatch 1437 South Main Street - 302 P O Box 8405 Tulsa, Oklahoma 74119 Kansas City, Missouri 64114 Mrs. Carrie Dickerson George L. Edgar, Esq.
Citizens Action for Safe Kevin P. Gallen, Esq.
Energy, Inc. Morgan Lewis & Bockius P O Box 924 1800 M Street, N.W. - 700 Claremore, Oklahoma 74107 Washington, D.C. 20036 Mrs. Ilene H. Younghein Charles S. Rogers, Esq.
3900 Cashion Place Assistant Attorney General Oklahoma City, OK 73112 112 State Capitol Building Oklahoma city, Oklahoma 73105 Mr. Lawrence Burrell Route 1, Box 197 Mr. Gregory Minor Fairview, Oklahoma 73737 MHB Technical Associates 1723 Hamilton Avenue - Suite K Joseph Gallo, Esq. San Jose, California 94125 Isham Lincoln & Beale 1050 17th Street, N.W.
Washington, D.C. 20036
,3 j hVMartha E'.~Gibbs
)Ido(
One of the Attorneys for the Applicants ISHAM, LINCOLN & BEALE One First National Plaza Chicago, Illinois 60603 (312) 558-7500 }g ,
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