ML20059B111

Philadelphia Electric Co Response to NRC 931014 Order.* State Failed to Demonstrate Entitlement to Hearing to Challenge Util Amend to Permit Util to Receive Shoreham Fuel

ML20059B111
Person / Time
Site:	Limerick, Shoreham  File:Long Island Lighting Company icon.png
Issue date:	10/20/1993
From:	Wetterhahn M PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC, WINSTON & STRAWN
To:	NRC COMMISSION (OCM)
Shared Package
ML20059B114	List: ML20059B111 ML20059B129
References
CON-#493-14397 MISC-93-01, MISC-93-1, NUDOCS 9310280038
Download: ML20059B111 (10)

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- UstEC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION  !

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In the Matter of )

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STATE OF NEW JERSEY ) Docket No Misc. 9341

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Department of Law and Public ) l Safety's Requests ) 4

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PHILADELPHIA FI.FrTRIC COMPANY'S RESPONSE 'IO.

THE NUCLEAR REGULATORY COMMISSION'S OCTOBFR 14.1993 ORDER INTRODUCTION  ;

By Order dated October 14,1993, the Secretary of the Nuclear Regulatory Commission t

("NRC" or " Commission') requested responses to two questions from, in!C[ Alia, Philadelphia ,

Electric Company ("PECo") relating to a request by the State of New Jersey Department ofI.aw and Public Safety ("New Jersey" or " State"). New Jersey seeks additional NRC consideration f I

of environmental impacts associated with the shipment of slightly irradiated fuct from the .

s Shoreham Nuclear Power Station to PECo's Limerick Generating Station. The Secretary of the j l

NRC has asked: ,

(1) Whether at this time either matter referenced by the State i gives rise to any hearing right under Section 189 of the Atomic  !

Energy Act; and, if so, (2) Based on the State's October 8,1993 l

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submittal, does New Jersey- meet the applicable standards for intervention under 10 C.F.R. { 2.7147 PECo submits that the answer to these two questions is a resounding "no." The NRC is barred from reconsidering the grant of the Limerick license amendments inasmuch as New Jersey failed to raise these issues before the expiration of the 60-day period for review by a J

9310280038 931020 PDR ADOCK 05000322 G- PDR 603

coun of appeals under the Hobbs Act,28 U.S.C. 5 2342(4)(1988). The order of the h%C is final and beyond the jurisdiction of the couns. Hence, it is not subject to direct or collateral attack. PECo is entitled to rely on the authorization of the NRC to receive and utilize the fuel.

Furthermore, even were a reopened heanng on late intervention potentially available to it, New Jersey has failed w demonstrate that it is entitled to such a heanng.

ARGINENT L The NRC Lacks Jurisdiction To Consider New Jersey's Request for a Heanng and Late Intervention Because the Time for Judicini Review has Fxnired.

The Limerick license amendment pennitting the receipt of the fuel from Shoreham was issued on June 23,1993# Under the Hobbs Act, the period for judicial review of this final agency action expired on August 22,1993. The NRC has held that until the period forjudicial review has expired, it may give further consideration to its otherwise final licensing action.

Florida Power and Lizht Company (St. Lucie Nuclear Power Plant, Unit 2), CLI-80-41,12 NRC 650 (1980). However, although New Jersey admitted it knew about the planned barge shipments in early July, New Jersey elected not to bring its grievances before the NRC until -

October 8,1993, long after the 60-day for review had expired.

The State's failure to request timely NRC action cannot be excused on the basis that discussions were ongoing among the parties, or that it was disappointed with the denial of relief ;

l' The NRC had published a notice of opportunity for hearing and a no significant hazards consideration on March 31,1993 (58 Fed. Reg. 16,851, 16,867). On May 18,1993, the NRC published notice of the issuance of an environmental assessment and a finding .

of no significant impact (58 Fed. Reg. 29,010). On July 7,1993, notice ofissuance of the PECo amendment was issued (58 Fed. Reg. 36,451).

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by the District Coart. The NRC has held that "a petitioner may not rely on the pendency of another proceeding to protect its interests and then justify its late petition on that reliance when the other proceeding fails to encompass petitioner's interests." Consolidated Edison Co. (Indian l Point Station, Unit No. 2), LBP-82-1,15 NRC 37, 39-40 (1982).

The expiration of the 60-day time period for judicial review is a jurisdictional bar to >

consideration of a final agency action by the courts. Enerry Prohe v. NRC. 872 F.2d 436,437 (D.C. Cir.1989); NatumiResources Defense Council v. NRC, 666 F.2d 595 (D.C. Cir.1981).

So, too, is it a bar for further consideration by the agency. Sec Florida Power and Licht Co.,

sp_ta,12 NRC at 652; Pan American Petroleum Corn v. Federal Power Comm'n. 322 F.2d 999,1004 (D.C. Cir.1963). Litigation and the threat thereof must end and finality be accorded to NRC decisions so that parties may rely on Commission action. As the Atomic Licensmg Appeal Board has stated:

the exclusion from a proceeding of persons or organizations who have slept on their rights does not offend any public policy favoring broad citizen involvement in nuclear licensing adjudications. Assuming that such a policy fmds footing in Section 189a . . . it must be viewed in conjunction with the equally important policy favaring the observance of established time limits.

Lonc bland Lightine Co. (5hercham Nuclear Power Station Unit 1) ALAB-743,18 NRC 387, 396 n. 37 (1983).

H. Petitioner Has Failed to Meet or Even Address the Standard  ;

[or Reopeninc a ProceedInc.

Assuming arcuendo that the request for a hearing is not jurisdictionally time barred, New Jersey has failed to address and fulfill the requirements for reopening and late intervention.

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4-When a petitioner seeks to intervene late in a proceeding for which the record is closed, both the late reopening a:1d intervention criteria must be satisfied. Texas Utilities Electric Co.

(Comanche Peak Steam Bectric Station, Unit 2), CLI-93-04, 37 NRC 156,161 n.1 (1993).

First, New Jersey's motion to reopen is not timely. "[T]he party seeking to reopen must show that the issue it now seeks to raise cou!d not have been raised earlier.' Detroit Edison Comrany (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-730,17 NRC 1057,1065 (1983)

(emphasis in original). The Freeman Affidavit (Attachment A) irrefutably shows that New Jersey could have sought reopening on barge impacts at least three months ago, when the time for judicial review had not elapsed. Neither has New Jersey attempted to demonstrate it meets the exceptionally grave" issue exception contained in 10 C.F.R. I 2.734(a).

Second, contrary to the requirements of f 2.734(a)(2), New Jersey has failed to raise a significant safety or environmental issue. New Jersey has provided only speculation concernmg hypothetical environmental or safety risks of severe barge accidents on the New Jersey coast and tourism. New Jersey has offered no technical data or scientific analysis to support these conjectural assertions. However, a pany seeking to reopen an NRC proceeding must furnish affidavits "by competent individuals with knowledge of the facts alleged, er by experts in the disciplines appropriate to the issues raised." 10 C.F.R. D 2.734(b).

Third, New Jersey's petition does not demonstrate that a materially different result l would be or would have been likely had the newly pmffered evidence been cor.sidered initially.

This is the most impor: ant factor of the three-pronged test for reopening. Rout on Lightine and Power Co., South Texas Project, Units 1 and 2), LBP-86-15, 23 NRC 595, 672 (1986).

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5-Nothing in New Jersey's petition alleges that the NRC would have reached a different conclusion if New Jersey's arguments had been before the Commission earlier. As discussed below, the NRC has already analyzed the environmental impacts of barge transportation ofirradiated fuel from nuclear power reactors and determined that those impacts are within the bounds of the analysis of Table S-4. Petitioner does not even argue that the NRC should waive the applicability of Table S 4 per 10 C.F.R. I 2.758(b),let alone show that a different attettment of environmental impacts would result.

IH. The State Has Failed To Meet The Commission Requirements For Late Intervention.

In addition to the requirements for reopening contained in 10 C.F.R. $ 2.734, New Jersey must satisfy the separate criteria for a late filed petition for intervention. A nontimely tequest for heanng will not be entertamed absent a showing that a balancing of the factors of 10 C.F.R. 66 2.714(a)(1)(i)-(v) favors the petition.

A petitioner has a duty to confront the five lateness factors in its petition. Hoston Edison CA (Pilgrim Nuclear Power Station), ALAB-816,22 NRC 461,466,468 (1985). Thus, a late ,

petition to intervene which does not even discuss these criteria must be denied. Duke Power Co. ,

(Perkins Nuclear Station, Units 1, 2 and 3), ALAB-615,12 NRC 350, 353-54 (1980). New Jersey's late request for a hearing contains only a flecting discussion of two of the lateness factors: good cause (Brief at 44), and availability of other means to protect the State's interests (Brief at 46).

In any event, a balancing of the five lateness factors would clearly call for denial of New Jersey's petition. Good cause for lateness is the most important factor, and, where good cause i

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is lacking, a petition must make a compelling showing on the other factors. Lonz Island Liehtine Co. (Shoreham Nuclear Power Station. Unit 1), ALAB-743.18 NRC 387,397 (1983) citing Detroit Edisen Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707,16 NRC 1760, 1765 (1982). The burden of proof is on the petitioner. New Jersey admits that it knew of the intention of Long Island Power Authority ("LIPA") to ship the fuel by barge in early July of this year (Brief at 10). Preoccupation with other matters does not excuse lateness. B21tl Sound Power & Light Co. (Skagit Nuclear Power Project, Units I and 2), LBP-79-16,9 NRC 711, 714 (1979). Nor does poor judgment or imprudence or a late revelation of possible adverse ,

effects from the licensing action. Id. Poor judgment is not good cause for late filing even if specific details unforeseen at first later surface. Id. at 714-715. Also, as noted pnwiously, a claim that pentioner believed that its concerns would be addressed in another proceeding will not be considered good cause. As discussed in Attachment A, Affidavit of Jan Freeman, New Jersey was fully informed of the barge option in late May or early June 1993. New Jersey relied on informal discussions and the weight of its governmental influence to persuade PECo and LIPA to drop the barge option voluntarily. New Jersey's unsuccessful persuasion is not

" good cause" for failing to invoke NRC procedures until after several shipments have already been made.

Absent a showing of good cause for late filing, New Jersey must make a " compelling showing" on the other four factors governing late intervention. Cleveland Electric illuminating Co. & Toledo Edison Co. (Perry Nuclear Power Plant, Unit 1), LBP-91-38,24 NRC 229,246-47 (1991). New Jersey has not met this heavy burden.

The first of the four remaming factors is the availability of other means whereby petitioner may protect its interest. The State has requested. in pamllel, that pursuant to i 2.206 a proceeding be instituted and is now before the Court of Appeals for the Third Circuit requesting judicial review of the same matters. The second factor -- the extent to which peutioners' participation will assist in developing a sound record - strongly suggests that New Jersey's petition should be denied. New Jersey has not submitted any affidavits of experts nor shown it has expertise in the shipment of nuclear fuel. The third factor - the extent to which petitioner's interest will be represented by existing parties -- also does not weigh in New Jersey's favor. Petitioner's interest will be adequately protected by the Staff, which has a duty to ensure that the public interest is protected in the enforcement of the Atomic Energy Act Indian Point, apnt,15 NRC at 41.

The final factor - the extent to which petitioner's participation will broaden the issues or delay the proceeding - has been characterized as "of immense importance in the overall balancing process," Perry: Davis-Besse. sps, 34 NRC at 247. ranng Long Ishnd Lichtine Co.,

(Shoreham Nuclear Power Station, Unit 1), ALAB-743,18 NRC 387,402 (1983). This factor most strongly compels the denial of the petition. The amendment process is long since over.

The grant of New Jersey's request would result in a hearing which would otherwise not be held.

IV. New Jersey's Petition Fails To State An Admissible Contention.

The State's petition is also defective because it fails to state a contention. As to PECO's amendment, at most a single " concern" is contained in the petition. The petition contends that the NRC failed to comply with NEPA in determining that the environmental impacts of

_g. i transportation of fuel from Shoreham to Limerick had been adequately analyzed? This contention, however. would be inadmissible because: (1) it constitutes an impermissible attack on Commission regulations under 10 C.F.R. l 2.758; and (2) it fails to meet the requirements set forth in 10 C.F.R. I 2.714.  :

The crux of New Jersey's petition is a challenge to the NRC's generic evaluation, by way of rulemaking, of the environmental effects of the transportation of radioactive materials to and from nuclear power plants # Contrary to its argument, Table S-4 is applicable to barge  ;

transportation. The regulations clearly denote that the shipment ofirradiated fuel from a reactor "by truck, rail, or barre" is covered by Table S-4. 10 C.F.R. 6 51.52(a)(5) (emphasis added).  ;

The supporting documentation for Table S-4 explicitly includes a detailed analysis of the effects of an accident involving a barge ca Tying irradiated fuel. Egg " Environmental Survey of Transportation of Radioactive Materials to and from Nuclear Power Plants," WASH-1238 at 68- l 71 (December 1972). Thus, the pe:ition wking a site-specific assessment of environmental 3' In passing, New Jersey notes that its Coastal Zone Management Plan identifies NRC

" permits and licenses required for the construction and operation of nuclear facdities under the AEA of 1954, Sections 6, 7, 8 and 10," as those for which applicants must consult with the NJDEPE for consistency review. However, the New Jersey plan only refers to the initiallicensing for the construction and operation of facilities rather than to any amendments to those licenses. Moreover, the license amendments obtained by  ;

PECo relate to the receipt of fuel which does not affect the coastal zone.

3' Table S-4 resulted from a generic study of the environmentalimpacts of transportation of fuel and wastes to and from nuclear reactors. 40 Fed. Reg.1005 (January 6,1975);

10 C.F.R. $ 51.52. This analysis included "the probabilities of occurrences of transportation accidents, the expected consequences of such accidents, and an analysis of the potential radiation exposures to transportation workers and the general public '

under normal conditions of transport." 40 Fed. Reg. at 1005 (January 6,1975).

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impacts from barge transportation constitutes an' impermissible attack on a Commission ,

regulation per 10 C.F.R. 6 2.758.  ;

i New Jersey may not question the validity of Table S-4 by way of contentions without an  !

i appropriate showing. 10 C.F.R. f 2.758. Vermont Yankee Nuclear Power Cord. (Vermont Yankee Nuclear Power Station), LBP-90-6, 31 NRC 85, 91, n.9 (1990) siling Philadelphia [

Electric Co. (Peach Bottom Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 21 .[

(1974) Contentions speifially challenging Table S-4 are inadmissible. Carolina Power and l T icht Comnany (Sheamn Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 543-44 .:

(1986); Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-825,22 NRC I

785, 793-94 (1985). Nor has New Jersey petitioned for a waiver of the applicability of Table i

S-4 nor identified how the Table has failed to accomplish its intended purpose. 10 C.F.R. 6 1 2.758(b).  ;

V. New Jeney Fails To Meet ne Requirements For An  !

Admissible contention. ,

A petitioner is required by 10 C.F.R. I 2.714(b)(2) to explain the basis for the contention, provide a concise statement of the alleged facts or expert opinion which support the f 1 l proposed contention, and provide sufficient information to establish the existence of a genuine dispute with the applicant on a material issue of law or fact. Arizona Public Service Co. (Palo l Verde Nuclear Generating Station, Units 1, 2 and 3), CL1-91-12, 34 NRC at 149, .155-56, j l

Georcia Power Co (Vogtle Electric Generating Plant, Units 1 and 2), LBP-91-21,33 NRC 419, -l 422-24 (1991), apxal dismissed, CLI-92-3, 35 NRC 63 (1992). The filing of ' vague, j l

unparticulanzed contentions is not permitted. Duke Power Co. (Catawba Nuclear Station, Units j

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b I and 2), ALAB-687,16 NRC 460,468 (1982), rev'd. in turt on other grounds, CLI-83-19,17 ,

NRC 104) (1983). New Jersey has failed to meet these requirements and its petition should be denied.

CONCLUSION For the reasons stated above, the NRC lacksjurisdiction to consider New Jersey's request for a hearing pursuant to 10 C.F.R. $ 2.714. The State has failed to demonstrate that it is entitled to a hearing to challenge PECo's amendment to permit it to receive the Shoreham fuel.

Respectfully submitted, WINSTON & STRAWN Mark J. Wetterhahn Robert M. Rader Counsel for Philadelphia Electne Company October 20,1993 L

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