ML19290F135
| ML19290F135 | |
| 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: |
| References | |
| NUDOCS 8003180165 | |
| Download: ML19290F135 (10) | |
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Before the Commission 02
-1 In the Matter of the Application
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of Public Service Company of
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Oklahoma, Associated Electric
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Docket Nos. STN 50-556 Cooperative, Inc. and Western
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STN 50-557 Farmers Electric Cooperative,
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Inc. (Black Fox Station, Units
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1 and 2)
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RESPONSE OF THE STATE OF OKLAHOMA TO APPLICANTS' " MOTION TO STRIKE RLSPONSE OF THE ATTORNEY GENERAL TO ALAB-573" FORWARD COMES NOW the State of Oklahoma (hereinafter,
" Oklahoma"), by and through its Attorney General Jan Eric Cartwright, and makes answer to the 50 TION TO STRIKE RESPONSE OF THE ATTORNEY GENERAL TO ALAB-57 3 filed February 11, 1980 by Public Service Company of Oklahoma, Associated Electric Cooperatives, Inc. and Western Farmers Electric Cooperative (hereinaf ter collectively referred to as " Applicants"), pur-suant to 10 CFR, SS 2.730(c) and 2.710.
On December 7,
1979, the Atomic Safety and Licensing Appeal Board (Appeal Board) assigned to this cause issued ALAB-573 which, inter alia, affirmed the partial initial de-cision of the At tomic Safety and Licensing Board (Licensing Board) concerning site suitability and environmental matters.
The Appeal Board specifically concluded that the Licensing 8 0 0 318 0 l 6]$ '
Board " acted.in accordance with existing Commission policy in not considering Class 9 accidents at that time."
In making the above statement, the Appeal Board was ob-2 viously mindful of the Commission's stated intention to re-examine the policy set forth in the proposed Annex to 10 CFR, Part 50, Appendix D.
The Appeal Board stated in this regard:
"Those instructions, however, do not spec-ify when the staff is to render its advise on the need to consider Class 9 accidents in individual licensing proceedings. It is unfortunate that the staff has not yet fur-nished that advise in this case. The Pro-ceeding before the Licensing Board is now half completed.
Mani fes t ly, if that Board is to examine the ramificatiTns of Class 9 events, the time to instruct it to do so Ts now.
not a f t e r The record " closes and Tts decision issues...."
(Emphasis added)
The Appeal Board then issued the following Order to the Staff:
"...We direct the staff to advise the Com-mission promptly (within 30 days) of the reasons why it believes the consequences of Class 9 accidents should or should not be considered in this case.
Within 30 days thereafter, the other parties may sub-mit their own views on the question to the Commission.
The Licensing Board shaTT not IIn the Mat ter of Public Service Co. of Oklahoma, et al (Black Fox Station, Units 1 and 2), ALAB-573, NRC (mimeo, at 31) (December 7, 1979).
2 In the Matter of Offshore Power Systems (Floating Nu-clear Power Plants), Docket No. STN 50-437, CLI-NVR (mimeo, September 14, 1979).
ALAB-573, mimeo, at 32.
consider the consequences of a Class 9 accident at the Black Fox site unless the Commission instructs it to do so."
(Emphasis in original)4 Staff filed its Statement of Positior. in obedience to the above Order on January 7, 1980.
The Jtate of Oklahoma responded to that Statement of Position on February 6, 1980.
Applicants made the instant Motion to Strike on February 11, 1980.
I.
Initially, it should be noted that the " Attorney General" is not a participant in the instant cause.
The Attorney Gen-eral is the legal representative of the State of Oklahoma which was admitted as a participant in the instant proceedings as an Interested State on February 27, 1979, pursuant to 10 CFR, 5 2.715(c) and Licensing Board Order.
Thus, the question is not whether Oklahoma's Attorney General has " standing" to make re-ply to Staff's Statement of Position on Need to Consider Class 9 Events, but whether the Interested State of Oklahoma should be allowed an opportunity to give its advice to the Commission in regard to the generic development of policy regarding the Class 9 environmental issue.
10 CFR, 6 2.715(c), 42 USC 5 2021(1).
II.
Oklahoma would first note that the instant matter is clearly neither an appeal from an adverse ruling by the Appeal 4 Id.
nor is it a sua sponte cert.ified question of law.6 Board,5 Instead, the Appeal Board apparently recognized a duty to be performed by the Staff that it believed was being neglected and, therefore, proceeded to Order Staff to fulfill that duty "p r omp t l yt. "
The difference, it is submitted, is significant to the ou come of the instant motion.
Cert 61nly of substance to the Commission's generic deci-i I
sion on tne continuation of the proposed Annex to 10 CFR, Part 50, Appendix D is a decision upon whether these long
" proposed regulations would cortinue ti control the scope of Construct ion Permi t applications pending final resolution of the question of whether the Annex should be adopted by the NRC.
As was noted by the Appeal Board, the Construction Per-mit phase of the instant proceeding is now half complete.
It is reasonable to conclude that the Appeal Board is concerned 5 10 CFR 9 2.786 governs appeals from decisions of Appeal Boards.
It is clear that en appeal may only be initit.ted in one of two ways:
(1) direction from the Commission, sua sponte, and (2) on timely petition by a party.
Clearly, i 2.786 does not bestow upon the Appeal Board the power to initiate appellate proceedings by Order.
6 10 CFR 9 2.785(d). The Appeal Board did, in fact, cer-tify a question of law to the Commission concerning the role of Part 50's Appendix I in individual licensing proceedings.
ALAB-573 (mimeo, pp. 26-29). That the Appeal Board did not consider its action a " certified question" is apparent from ALAB-573's Conclusion where the Appeal Board specifically did
" certify" the Appendix I question, and, in turn, directed the Staff to " apprise the Commission" whether Class 9 accidents should be considered in this case.
See ALAB-573 (mimeo, at 67).
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that the full Initial Decision in the Construction Permit stage may issue prior to the date the Commission makes a final decision relative to the adoption of the proposed Annex.
This conclusion is further underscored if the Appeal Board was cog-nizant of the fact that the " health and safety" phase of the Construction Permit hearings had been concluded just prior to he time the accident at Three Mile Island, Unit No.
2, caused the present " pause" in the licensing process.
As stated in Oklahoma's response filed February 6, 1980, it is clear that the matter that concerns the Appeal Board is not whether "spe-cial circumstances" exist in the present proposed policy which would permit Class 9 environmental impact analysis, but whether that issue should be examined at all in the instant applica-tion's proceedings.
Stated another way, are there any special circumstances that should exempt certain pending Construction Permit Applicants from the same regulatory strictures that will be applied to other pending Construction Permit applicant should the NRC decide to reject this proposed policy?
When examined in the above light it is apparent the Appeal Board intended the participants in the instant proceed-ing to join with Staff in aiding the Commission to develop and apply a generic regulatory policy and did not intend to limit participation to merely the participants in the appeal from the Licensing Board.
Oklahoma would therefore disagree with Applicant's assertion that the Appeal Board intended to limit participation in the instant matter to only those participants who were parties at the time of the site suitability and envi-ronmental phase of the instant proceeding.
Applicants correctly point out that the State of Okla-homa was not a party in the site suitability and environmental phase of this proceeding.
In fact, technically, Oklahoma is still not a " party" since it participates under 10 CFR 5 715(c) as an " Interested State." No effort was made to disguise either of the above facts since both were clearly noted on the face of Oklahoma's response.
Participation by an Interested State under 10 CFR I 2.715(c) is, however, radically different than that available to other non party participants.
Persons not permitted to in-tervene as a party are at most allowed to give an oral or written statement of position on the issues at any session of the hearings or prehearing conference under such conditions as the presiding officer fixes.8 By way of cont rast, Interested States, through their legal representatives, may introduce evidence, interrogate witnesses and otherwise advise the Com-7State of Oklahoma's Response to Staf f Statement of Posi-tion on Need to Consider Class 9 Events Pursuant to Direction in ALAB-57 3 and Request for Time to Discover Basis for Facts Asserted by Staff and Opportunity to Reply," February 6,
- 1980, p.
1.
0 10 CFR S 2.715(a).
mission in hearings without being required to take a position with respect to the issues.9 An Interested State is not limited to the issues as framed by the party participants, but "can participate in the development of the record on any issue (contested or not) which is before a licensing board for resolution in a construction permit proceeding."10 An Interested State may appeal a licen-sing board decision in a proceeding in which it participated.11 In short, the participation permitted an Interested State is co-extensive to that of a party.
Contrary to Applicant's assertions, Oklahoma is not be-latedly seeking to inject itself into a phase of the instant proceeding in which it has not elected to participate here-tofore.
As explained above, the instant matter does not in-volve an appeal from the Appeal Board's decision, nor has the Appeal Board certified a question of law to the Commission for resolution.
Instead, the Appeal Board has required the Staff to give advice to the Commission which will be useful 10 CFR 2.715(c).
See also the Matter of Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-317, 3 NRC 175, 176-77 (1976).
10 In the Matter of Project Management Corp. et al (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 392 (1976).
11ALAB-317, 3 NRC, at 178.
In bringing on appeal the Interstated State must, of course, take a posi tion wi th re-spect to the issue appealed.
3 NRC, at 179.
It must follow the same procedural rules as a party.
3 NRC, at 180, n.
- 7.
to the Commission in developing its generic policy concern-ing Class 9 accident environmental impact policy.
The Appeal Board then solicited the input of other participants in the proceeding to also advise the Commission in response to that advice given by Staff.
It is submitted that Oklahoma, as an l'
Interested State, has the right under both statute
- and reg-13 ulation to advise the Commission under the instant circum-stances. Oklahoma respectfully submits the Applicant's motion should be denied.
III.
Applicants suggest in their third footnote that the participation of Oklahoma should not be allowed in the instant matter because of our efforts to become frily informed through informal discovery on the Class 9 issue..*
licants assert that the discovery request indicates Oklahoma is seeking the infor-mation to " disrupt and unduly burden this proceeding...."14 Applicants, therefore, would have the Commission take the ab-surd action of denying Oklahoma's participation in advising the Commission regarding Class 9 accident policy on the basis of Oklahoma's attempt to become better informed on the genesis and evolution of the Commission's current proposed policy.
1242 USC 5 2021(1).
13 10 CFR 9 2.715(c).
14" Motion to Strike..."), p. 3, n.
- 3.
P Even if.the assertion was true (which it is not), that Oklahoma's motive for seeking the information was to " disrupt and unduly burden" the instant record with the information, it is submitted the Commission and its various boards are well equipped to deal with " disruptive influences."
Oklahoma respectfully submits that Applicant's assertions are no basis at all for blocking Oklahoma's participation in the instant matter and for the reasons discussed in Part II of this response, Applicants Motion, to the extent it is based on said assertions, should be denied.
IV.
Oklahoma would submit to the Commission that because the instant natter does not involve either an appeal from an Appeal Board decision nor a certified question of law from the Appeal Board to the Commission, but instead involves giving advice to the Commission relevant to the Commission's generic Class 9 policy reconsideration, all participants to the instant docket should be allowed to participate. If the instant matter were an appeal or certified question of law, Oklahoma would have had the right, if appropriate, to petition for leave to participate as an amicus curiae under 10 CFR S 2.715(d).
Said provision, of course, is inapplicable to the instant matter for the rea-sons set forth in the preceeding sections of this brief.
The Commission has previously stated that " participation of an
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interested sovereign state in...[the] licensing process, as a full party or otherwise, is always desirable...."15 Oklahoma's desire to participate is manifest in the response filed Febru-ary 6, 1980.
It is respectfully requested the Commission con-sider the advice set forth in said response.
Respectfully submitted, JAN ERIC CARTWRIGHT ATTO NEY GENERAL OF OKLAHOMA A
ARLES S.
ROGERS ISTANT ATTORNEY GE,ERAL
' A-aA.
LE ANN ILSON-ZALKO ASSISTANT ATTORNEY GENER 112 State Capitol Oklahoma City, Oklahoma 73105 (405) 521-3921 ATTORNEYS FOR THE STATE OF OKLAHOMA CSR/LAWZ:mj 15 In the Matter of Public Service Company of New Hamp-shire, et al (Seabrook Station, Units 1 and 2), CLI-77-25, 6 NRC 535, 537 (1977).