ML20058J727

Application for Reconsideration of ASLB 820714 Order. Decision Should Be Reversed to Hold That Federal Member of DE River Basin Commission Did Not Finally Concur in Disposition of Diversion.Certificate of Svc Encl

ML20058J727
Person / Time
Site:	Limerick
Issue date:	08/08/1982
From:	Sugarman R DEL-AWARE UNLIMITED, INC., SUGARMAN & ASSOCIATES
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20058J719	List: ML20058J717 ML20058J727
References
NUDOCS 8208110189
Download: ML20058J727 (11)

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J6 le ,l ,' o, UNITED STATES OF AMERICA

.D NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board -- 'l --? p}[

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In the Matter of ) ....... ,. -

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Philadelphia Electric Company ) Docket No. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

APPLICATION FOR RECONSIDERATION In its July 14, 1982 Order, based on an affidavit of Gerald Hansler, Executive Director of the Delaware River Basin Commission, the Board determined that the Federal Representative,po the DRBC had concurred in the decision to all'ocate Delaware River water to Limer,-

ick, and thus held that the DRBC decision precludes consideration of the allocation question herein.

In view of the Board disposition and Hansler affidavit, inter- '

venor has located a copy of the transcript of the February 18, 1981 meeting of the DRBC, where the DRBC placed the PECo diversion in its Comprehensive Plan, and gave project approval to the NWRA and PECo projects, subject to reconsideration based on the NRC determination in the case of the PECo diversion. The transcript of Commissioner Tribbit's comments, attached hereto as Exhibit A, clearly contradicts the factual information on which the Board's July 14 decision was based. It shows clearly that the Federal Member based his concurrence explicitly on his . understanding that the NRC would resolve all en-vironmental issues relating to the withdrawal of Delaware River water (the allocation).

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I 8208110189 820808 PDR ADOCK 05000352

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The key element of Commissioner Tribbit's comments begins with his having inserted into the record a letter to NRC from EPA, as fol-lows:

" Philadelphia Electric Company's Limerick nuclear facility is a complex project that has been controversial ' for many years. We- have re-cently been involved in numerous meetings with the Delaware River Basin Commission concerning plans to permit diversion of water from the Delaware River, in part for supplemental cooling water supply for the facility. We are particularly concerned with the consumptive use of scarce water

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resources, the mechanisms for provision of the necessary storage, and the physical and biological impacts on the natural streams which will convey the flows to Limerick.

"Therefore, we were pleased to hear from the DRBC, from Dr. Sam Worth, [ sic] at NRC in Washington, and from the article quoting you in the Philadelphia Inquirer, February 10, 1981,,that .

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NRC is planning to prepare draft and final Environmental Impact Statement supplements prior ..

to issuance of an operating license for Limerick.

"We were also encouraged to note that you will be including review of the impacts of the supplemental cooling water diversion. DRBC has

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indicated that they would like to consult and '

coordinate with you on those portions of the EIS.

"Since, as required by the National Environ-mental Policy Act, EPA will be reviewing the EIS, we would like to participate in the project sco-ping meeting so as to address the concerns we have raised in the pa'st and provide for the resolution i

in a timely fashion during EIS preparation. We are looking forward to working with you."

(Tr. 47-48)'

Commissioner Tribbitt then made the following statement:

"Mr. Chairman, if I might on behalf of the federal government just as other Commissioners are i expressing themselves: In trying to correlate the i

responsibilities of various federal agencies on any subject that may be before a regulatory board such as the Delaware River Basin Commission --

sometimes with a great many opinions on author-ities and jurisdictions, and with EPA being one of those who for some time had been one of the t

leading agencies to voice objections, it is quite clear to me with this communication dated February 17 that EPA has no particular problem with diver-sions and they are looking directly to NRC for any EIS's relative to the subject matter before us and not to this particular regulatory agency.

"Under those circumstances the Federal Repre-sentative feels he can very well cast an affirma-tive vote on these two matters before the Commis-sion."

In context, Commissioner Tribbitt's remarks clearly show that he was concerned about EPA's opposition, and that having been reassured that EPA was not unalterably opposed to the diversions as such, but was concerned with PECo's diversion, particularly relating to consum-ptive water use, mechanisms for storage, and physical and biological impacts on the Perkiomen (which are Intervenor's concerns as well), he

_ felt able to vote for the PECo and NWRA diversions because he was reassured that NRC would address the entire cooling water issue, in2 cluding the diversion itself, and its impacts, and that EPA would be satisfied.

Del-AWARE Recognizes that the Board ' has decided that DRBC as a whole did not condition its approval on NRC review of the Point Pleas-

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ant project (July 14 Order, at 10). Del-AWARE.does not now seek fur-ther review of that decisi6n.

Nor in this context, is it so important what the NRC in fact ,

committed to do.

What is important, and despositive, is as stated in the SPCO, 1

l "Whether the Federal Representative can be deemed to have concurred in th'e operation allocation decision." (SPCO, at 96) l l

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Del-Aware submits that Commissioner Tribbit's concurrence was clearly based on his understanding that the NRC would determine the issues. -

With this new information, Del-AWARE respectfully submits that the Board should reverse its determination of July 14 and hold that the Federal Member of the DRBC did not finally concur in the disposition of the diversion, and hence that there is no preemption of that matter from this proceeding by the virtue of Section 15.1(s)1 of the Compact.

Any other determination would fly completely in the face of Gov-ernor Tribbitt's remarks, and leave this Board in the position of de-ciding preliminarily at the outset of a long proceeding on the basis of an affidavit which is contradicted by the facts Respectfully submitted,

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s ROBERT J. SU 4Alj Attorney for 1-IWARE Unlimited, Intervenor Of Counsel:

SUGARMAN & DENWORTH Suite 510 121 South Broad Street Philadelphia, PA 19107 (215) 546-0162 Date: August 8, 1982

, 93 8

44 Neshaminy Watershed Project, will provide an adequate water supply not only to a significant area, but also to a major segment of the population in the Commonwealth of Pennsyl-vania. New York State has in the past supported the pro-ject as a component of the Delaware River Basin Commission s-l Comprehensive Plan. The proposed modifications to the proj ect are based on the increased need for water and are n- -

a prudent approach, and New York State continues to sup-port this project with a favorable vote'.

With respect to the Philadelphia Electric Company portion of the docket, New York State in the past has also supported this project as an element of the Delaware River Basin Commission's Comprehensive Plan. Thh proposed increase in capacity of the reservoirs does not represent a major change in the project, and New York i State intends to vote affirmatively for t h i s- portion also.

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COMMISSIONER TRIBBITT: Mr. Chairman, I

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have four communications.. The first is from the Executive Director to NRC; the second,from NRC to the Executive Director; the third, the letter addressed to me from EPA which you took the liberty to read; and, finally, a com-munication from EPA to NRC. I respectfully request tnat

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with the exception of the EPA letter the Secretary read ,

45 these communications.

SECRETARY UHITALL: This is from Mr. Hansle' to Mr. Eisenhut of NRC:

"This is to confirm our recent conversation concerning the Limerick-nuclear generating plant o.n the Schuylkill River in Pennsylvania. It is my understand-ing that the Nuclear Regulatory Commission intends to prepare an fnvironmental Impact Statement on the opera-ting license aspect of the Limerick plant which is now under construction. If this is the. case, it would be Very much appreciated if you could so inform me i n" writing as soon as possible. The Delaware River Basin Commission intends-to act on the Point Pleasant Pumping Station project, an adjunct to Limerick, within the.

r near future."

And-then he gives our telephone number.

The second letter, replying to Mr. Hansler, is from Mr. Tedesco, Assistant Director for Licensing of the Division of Licensing of NRC, and the date is December 16, which is one day following the date of the previous letter.

"This is in response to your letter of December 15, 1980 to.Mr. Darrel Eisenhut concerning the 1

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46 preparation of an Environmental Impact Statement for the Limerick generatihg station during the Nuclear RegM latory Commission operating license review. As re-quired by NRC regulation contained in,10CFR Part 51, applicants for an operating license must submit an Environmental Report which will be reviewed by NRC as par,t of its National Environmental Policy Act review requiremen;ts.

" Based upon the applicant's Environmental Report the NRC staff will review the> environmental in-pacts associated with the operation of the LGS, 1*nclud-ing those facilitics that are required to support its

, operation,. This review will specifically consider in-formation and data that have been developed subsequent to the issuance of our final environmental statement for the construction permits. After completion of this review both draft and final environmental statements will be i s s u e d . >'

The remaining letter is addressed to Mr.

Tedesco of the NRC from Mr. George Pent, Chief of the Environmental Impact Branch of EPA, and it is dated Feb-ruary 17, 1931.

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" Philadelphia Electric Company's Limerick nuclear facility is a complex. project that has been con -

trover sial for many years. We have recently been involve in numerous meetings with the' Delaware River Basin Com-mission concerning plan s to permit diversion of water ,

from the Delaware River, in part for supplemental cool-ing water supply for the facility. We are particularly concerned with the consumptive use of scarce water re-sources, the mechanisms for provision of the necessary storage, and the' physical and biological impacts on the natural streams which will convey the flows to

Limerick. s "Therefore,_we were pleased to hear from^

the DRBC, from Dr. Sam.' Worth at NRC in Washington, and from the article quoting you in the Phila.delphia.In-

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quirer, February 10, 1981, that NRC is planning to pre-pare draft and final Environmental Impact Statement-supplements prior to issuance of an operating license for Limerick.

"We were also ' encouraged to note that you will be including review of the impacts of the supple-mental cooling water diversion. DRBC has indicated that they would li5 e to consult and coordiner with you

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Qa 48 on those portions of the EIS.

"Since, as Eequired by the. National Environ-mental Policy Act, EPA will be. reviewing the EIS, we would like to participate in the project scoping meet-ings so as to address the concerns we have raised in the past and provide for their resolution in a timely fashion'during EIS preparation. Uc are looking forward to working with you."

COMMISSIONER TRIBBITT: Mr. Chairman, with-out objection I request that those communkcations which have been read be made part of this public hearing record.

CHAIRMAN PICCO: .Any objections from the panel? (None) They will be entered as part of the record.

COMMISSIONER TRIBBITT: Mr. Chairman, if I might on behalf of the federal government just as other Commissioners are expressing themselves: In trying to correlate the responsibilities of various federal agencies on any subject that may be before a regulatory board such as the Delaware River Basin Commission -- sometimes with a great many opinions on authorities and jurisdictions, and with EPA being'one of those who for some time had been one of the leading agencies to voice objections, it is quite clear to ne with this communication dated February 17 that

49 EPA has no particular probl,em with diversions and they are looking directly to NRC for any EIS's relative to the sub-

, - -- . - . . . _ _ .___. . _ _ y ject matter before us and not to this particular 'regulato,r;r

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agency.

Under those circumstances the federal repre -

sentative feels he can very well cast an affirmative . . . . . . ....--m vote on these two matters before the Commission. - ...

COMMISSIONER EICHLER: I would like to point o u't initially that when my colleague from Pennsylvania mentioned that he did not_think there woufd be any more need for power plants in the fresh water part of the Basin I held my breath for a moment; and t$en he went on to say that he th'ought they could be located in the Ohio and ---

Susauchanna. I was gratified to hearthiat. ~

We ha've paid a great deal of attention to these dockets before the Commission. I personally attende<1 the hearing in~Kulpsville and have looked at the record very extensively and have studied the project to a great extent, and I.have felt that it is one of the most complex and certainly one of the most important projects that has come before the Commission in the time that I have'been on l

it. It was with that in mind that we spent as much time in Delaware looking at this as we did. .

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CERTIFICATE OF SERVICE

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I hereby certify that the foregoing Motion of Del-AWARE Unlimited, Inc. to Compel Answers to Interrogatories,- '

..en and Application for Reconsideration were served by hand on the

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persons listed below. ,

Lawrence Brenner, Esq., Chairman Administrative Judge U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Richard F. Cole .

Administrative Judge U.S. Nuclear Regulatory Commission Washington, DC,20555 Dr. . Peter .. A. Morris.,

Administrative Judge- ,

a 10.S. Nuclear. Regulatory Commission Washington, DC 20555 '-

Stephen H. Lewis, Esquire Counsel for NRC Staff U.S. Nuclear Regulatory Commission Washington, DC 20555 ~

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Mr. Edward G'. Bauer, Jr.

Vice President & General Counsel ~

Philadelphia Electric Company 2301 Market Street Philadelphia, PA 19101 Troy B. Conner, Jr., Esquire Conner and Wetterhahn 1747 Pennsylvania Avenue Washington, DC.20006 Secretary U.S. Nuclear Regulatory Commission ATTN: Chief, Docketing & Service Branch Washington, DC 20555

>v>$C.

Robert J. (Bugarmhn Dated: GU-pr 9,19 82_

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