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NUCLEAR REGULATORY COMMISSION !- :. .

Before the Atomic Safety and Licensing Board }~f;/

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_xsIn the Matter of the Application )of Public Service Company of )Oklahoma, Associated Electric ) Docket Nos. 50-556Cooperative, Inc. ) 50-557

and )Western Farmers Electric )Cooperative )

(Black Fox Station, Units 1 and 2)

RESPONSE BY STATE OF OKLAHOt*3TO 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 CONTROVERSYCONCERNING HEARING SCHEDULE

1Applicants' assert that for various reasons the

controversy between Applicants, Intervenors and Oklahoma

1 Applicants' " Suggestion of Hearing Schedule", filedOctober 15, 1979, p. 1. It is interesting to notethat in support of their assertion that the controversyis now moot they attach, as " Exhibit A", a copy of atranscript of the October 4, 1979 meeting of the NRCCommission wherein the Commissiot ers discussed the

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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 regardinglicensing procedure. Normally attached to suchtranscripts is a disclaimer on page one thatsays in relevant part:

"The transcript is intended solely forgeneral informational purposes. As pro-vided by 10 CFR 9.103, it is not part ofthe formal or informal record of decisionof the matters discussed. Expressions ofopinion in this transcript do not neces-sarily reflect final determination orbeliefs. No pleading or other paper maybe filed with the Commission in any pro-ceeding as the result of or addressed toany 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 copyprovided as Exhibit A. Surely, if such a dis-claimer is so attached, Applicants could not

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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 inconflict with the stated purpose of the trans-cripts to be generally informational, not .

substantive. Therefore, absent an expressedauthorization from the Commission to use thecomments reflected in the transcript as" legislative history", Oklahoma submitsApplicants improperly rely on said comments,and we hereby object.

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

3 As to the Kemeny Commission report, the issue maywell be moot due to the fact that said repo':t isexpected 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 CARTWRIGHTA "' D"E GENERAL OF OKLAHOMA

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HARLES S. ROGERS.

ASSISTANT ATTORNEY GENERAL112 State Capitol BuildingOklahoma City, Oklahoma 73105(405) 521-3921

ATTORNEYS FOR THE STATEOF OKLAHOMA

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CERTIFICATE OF. SERVICE

I hereby certify that service has been on this dayeffected by personal delivery or first class mail onthe following:

Sheldon J. Wolfe, Esq.Atomic Safety and Licensing

Board PanelU.S. Nuclear Regulatory CommissionWashingtoc, D.C. 20555

Mr. Frederick J. Shon, MemberAtomic Safety and Licensing

Board PanelU.S. Nuclear Regulatory CommissionWashington, D.C. 20555

Dr. Paul W. PurdomDirector, Environmental StudiesGroup

Drexel University32nd and Chestnut StreetsPhiladelphia, Pennsylvania 19104

L.'Dow Davis, Esq.William D. Paton, Esq.Colleen Woodhead, Esw.Counsel, Nuclear Regulatory StaffU.S. Nuclear Regulatory CommissionWashington, D.C. 20555

Mr. Clyde WisnerNRC Region 4Public Affairs Officer611 Ryan Plaza Drive, Suite 1000Arlington, Texas 76011

Joseph R. Farris, Esq.John R. Woodard, III, Esq.Green, Feldman, Hall & Woodard816 Enterprise BuildingTulsa, Oklahoma 74103

Atomic Safety and LicensingAppeal Board Panel

U.S. Nuclear Regulatory CommissionWashington, D.C. 20555

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Atomic Safety and Licensing*

Board PanelU.S. Nuclear Regulatory CommissionWashington, D.C. 20555

Docketing and Service SectionOffice of the Secretary of

the CommissionWashington, D.C. 20555

Mrs. Ilene H. Youngheim3800 Cashion PlaceOklahoma City, Oklahoma 73112

Mr. Lawrence BurrellRoute 1, Box 197Fairview, Oklahoma 73737

Mr. Gerald F. DiddleGeneral ManagerAssociated Electric CooperativeP.O. Box 754Springfield, Missouri 65801

Mr, Glenn E. Nelson, Esq.Mr. Michael I. Miller, Esq.Isham, Lincoln and BealeOne First National PlazaChicago, Illinois 60603

Mr. George L. Edgar, Esq.Mr. Kevin P. Gallen, Esq.Morgan, Lewis & BockiusSuite 7001800 M Street, N.W.Washington, D.C. 20036

Mr. Vaughn L. ConradPublic Service Company of OklahomaP.O. Box 201Tulsa, Oklahoma 74102

Mr. T. N. Ewing, Acting DirectorBlack Fox Station Nuclear ProjectPublic Service Company of OklahomaP. O. Box 201Tulsa, Oklahoma 74102

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Mrs. Carrie DickersonCitizens Action for Safe Energy, Inc.P.O. Box 924Claremore, Oklahoma 74107

Mr. Maynard HumanGeneral ManagerWestern Farmers Electric CooperativeP.O. Box 429Anadarko, Oklahoma 73005

Dr. M. J. RobinsonBlack and VeatchP. O. Box 8405Kansas City, Missouri 64114

Mr. Joseph Gallo,Ms. Sarah F. HolzsweigIsham, Lincoln & Beale1050 17th StreetWashington, D.C. 20036

Mr. Andrew T. Dalton, Esq.1437 S. Main Street, Suite 302Tu1sa, Oklahoma 74119

Mr. Greg MinorMHB Tech. Assoc.1723 Hamilton AvenueSuite KSan Jose, CA 95125

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Response by State of Oklahoma to Apo icants' Suggestionof Hearing Schedule mailed this Th> day of October,1979.

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harles S. Rogers (Assistant Attorney General

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