ML20071L913

Supplemental Motion to Reopen &/Or to Admit New Contentions V-27 & V-28 Re Feasibility of Providing Water to Plant by Startup.Certificate of Svc Encl

ML20071L913
Person / Time
Site:	Limerick
Issue date:	05/24/1983
From:	Sugarman R DEL-AWARE UNLIMITED, INC., SUGARMAN & ASSOCIATES
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8305310013
Download: ML20071L913 (17)

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UNITED STATES OF AMERICA k \ 'D

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Philadelphia Electric Company : Docket Nos k ,y (Limerick Generating Station, :

Units 1 and 2  :

SUPPLEMENTARY MOTION TO REOPEN AND/OR TO ADMIT NEW CONTENTION V-27 AND V-28 del-AWARE by its counsel hereby supplements its petition pending motion to reopen, discharges its duty to advise the Board of new developments, and/or moves to admit new contentions, an,d avers as the basis thereof the following:

1. Recently, namely, on May 11 and May 16, respec-tively, the Chief Engineer of the Delaware River Basin Commission and Timothy Weston, the Chairman of the Delaware River Basin Commission (also the associate Deputy Secretary of Environmental Resources of Pennsylvanial testified before the Pennsylvania Public Utility Commission that there is water .in Blue Marsh Reservoir which could be made available for Philadelphia Electric Company. Both men testified that they would not recommend making available to PECo more than 25% of the available capacity, which would equal abou_t 25%

of the needs of one unit in the drought of record, in worst case conditions, i.e. maximum possible operation and worst case meterorological conditions. However, both officials 8305310013 830524 .

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O acknowledged the adequacy of the Blue Marsh water provide for one unit at Limerick, and also acknowledged that their calculations do not taken into account 6,600 acre feet of (approximately 3,300 cfs days not including additional inflow), or the potential for utilizing a portion of the minimum conservation release, previously used for storage in drought conditions.

2. In addition, Timothy Weston, the aforementioned chairman and associate deputy secretary, testified that he would be prepared to consider reduction of minimum flow res'trictions on withdrawal in the Schuylkill River. Neither witness referred to or relied upon the temperature limita-tion presently contained in the DRBC order.

3. Testimony 'by Jonathan Phillippe on behalf of Del-AWARE Unlimited in the PUC on May 21, 1983, documents that the DRBC basis for the temperature limitation, a 1968 Federal Water Quality Administration study, has since been updated by 1978 computer model of the river and demonstrates l that the temperature restriction is unnecessary for water quality purposes, as is the minimum flow limitation.

4. Based on the foregoing new information, it is suggested that the basis now exist for the determination that there is available water presently e::isting in Schuyl-kill for one unit at Limerick.

5. The Pennsylvania PUC decision that there is no need for the continued financing of Unit 2 is presently l

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before the Supreme Court, having been argued on April 23, 1983.

6. Additionally, on May 17, 1983, the voters of Bucks County voted to stop Bucks County's construction of the Point Pleasant diversion. Although under Pennsylvania law I

such referenda are nonbinding, the majority of the County Commissioners, which had supported the project (the minority commissioner had opposed it), had stated and since the election have reiterated their intention to accept the referendum as binding, and have informed PECo of their withdrawal from the project (Exhibit A).

7. Despite the foregoing, Philadelphia Electric Company continues to admit that it has never sought to ,

discuss with DRBC or' Pennsylvania DER the use of Blue Marsh water, or flow reductions in the Schuylkill River minimum flows, for one unit at Limerick.

8. In light of Bucks County's withdrawal from the project, the b' asis of the SPCO of June 1, 1982, as well as the Supplementary Order of July 14, 1982, namely that Bucks l County would continue to build the project in the absence of Philadelphia Electric, no longer exist. This fundamental change in circumstance means that the entire environmental impact of the Point Pleasant diversion construction must now be considered attributable to Philadelphia Electric.

Therefore it is now necessary for the Board and the Commission to determine whether the benefits of the Point Pleasant diversion in total exceed the detriments, or put 3

another way, whether it is responsible to proceed with the project, based upon a full NEPA review.

l 9. If the water treatment and distribution system is built, it will be solely because the Philadelphia Electric Company has evinced its intention to take over the project and proceed (see letter from Bernard Chanin to Sally Mrvos, Clerk of the Third Circuit Court of Appeals in response to her request for a statement from the parties as to the effect of the May 17 referendum on the Del-AWARE v. Baldwin l appeal, attached as Exhibit B).

10. Conversely, in light of the Bucks County with-drawal from the project, if PECo is permitted to pursue its intention to develop the Point Pleasant on its own, it will l require substantial ' litigation, and delay. Specifically, for example, the Philadelphia Electric would not be able to take advantage of the Water Authority's alleged right to override local zoning under Pennsylvania case law, and instead, in order to continue the pump station, a use contrary to the Township Zoning ordinance, would have to proceed through the Pennsylvania Public Utility Commission for permission to override local zoning. The Commission already held a substantial hearing on the Bradshaw Reservoir pump station for a similar reason, and has indicated its concerr about the potential impacts of the project en the East Branch of the Perkiomen Creek, and in light of the availability of alternatives, the Administrative Law Judge has disclosed the possibility that he may not recommend 4

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i approval of any or all of the proposed pumps at the Bradshaw i

Recervoir.

11. If such proceedings are instituted by PECo, they may be expected to consume a considerable period of time, as would litigation which would be instituted by Del-AWARE and i

others to prevent takeover by PECo of the county's land and other assets associated with the project.

12. It is further possible that the DRBC will recon-sider its docket approvals, since the executive director advised the Commission on November 17, 1982 that decisions I

by any of the project sponsors not to implement the project would require consideration of reopening of the DRBC docket.

(Letter attached hereto as Exhibit C.)

13. The foregoing suggest the following additional contentions in addition to the pending Contention V-26:

V-27 The withdrawal of Bucks County from the project has altered the assumption upon which the impact of Limerick can be evalu-ated, and requires that this Commission both in the environmental impact statement and in the licensing procedure, treat the full Point Pleasant diversion as a facility of the plant, th- a requiring permitting, as i well as consider of its environmen-

! tal effects in the overall context of reviewing the application for an operating license.

V-28 In passing upon the operating license, ,

the Commission must consider the feasibil-ity of providing water to Limerick in time for its . projected start-up date, and in

. view of the complications, dissarray, and l apparent legal obstacles to PECo's utiliza-

! tion of Point Pleasant, PECo must pursue alternative water sources in order for the NRC to continue processing its application, or to grant approval.

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14. The disclosure dates of the information contained in the above and within the motion and supplemental motion make it clear that the there is good cause for the late filing of this contention in that the facts averred have just become true and or have, through no unreasonable cause, just become available to the intervenor.

15. No other party will adequately or properly present the foregoing facts to the Board; the staff has repeatedly demonstrated its unwillingness to deal with any new devel-oping or long existing concerns relating to the water system, in that although it promised the DRBC that it would review these effects it has consistently and totally refused to do so, and is likely to continue to refuse to respond to intervenor's concerns'.

16. While consideration of these matters will undoub-tedly involve some minor expansion of the record and issues in the proceeding now before the Board, in view of the state of development of this information, there is no reason why such consideration should delay the ultimate outcome of the proceedings and in any event, the failure to consider them presently is likely to result in substantial delay of the operation of the project, a far more serious concern then the length of these proceedings.

WHEREFORE, Intervenor moves that the Board grant 6

its pending motion, as supplemented herein.

Respectfully sub.nitted, L i O W3/rL iv'. ? n+. . Oln ROBERT J. SUGARMAN V Counsel for Del-AWARE Of Counsel:

SUGARMAN & DENWORTH 121 S. Broad Street Suite 510 Philadelphia, PA 19107 (215) 546-0162 Dated: May 24, 1983 224 I

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i.:a y 18, 1983 Philadelphia Electric Company 21st and I:arket Streets Philadelphia, PA 19103 Attention: i r. Vincent Boyer Vice President

Dear Iir. Boyer:

Please be advised that we, the Bucks County Commissioners, are hereby terminating our contract with you to operate the Point Pleasant Pumping Station pursuant to the Agreement between the I!eshaminy Water P.e s cu r c e s Authority and Philadelphia Electric Company dated February 12, 1980.

Very truly yours,

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Elaine P. Ze .,1 c t ,

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PAND DELIVER m5)*77- 2046 b.. ..J Sally Mrvos, Esc.uire Clerk United States Court of Appeals for the Third Circuit -

21400 United States Courtkouse 601 Market Street -

Philadelphia, PA 19106 Re: Del-Aware Unlimited, Inc., et al. v.

Roger M. Baldwin, et al.

Civil Action 82-1010

Dear Ms. Mrvos:

This letter is responsive, on behalf of Philadelphia Electric appeal.

Company, to your letter of May 18, 1983 in the abcVe captioned Philadelphia Electric Company does not regard the nonbinding referendur as impairing its contractual rights respecting the Point Pleasant h'ater Diversion Project and fully intends to seek judicial enforcement of those rights. Accordingly, Philadelphia Electric Ccmpany does not regard the referendum as affecting this case.

Very truly yours, Bernard Chanin

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, L,,,g;,.,:,,:s 3ERAtt M MANSLER 11 ITAT E #CL'E E E *!'E November 17, 1982

Dear Cc=missioner Weston:

Re_: Review and Response of Cc= mission Staf f and Counsel to Amended Petition to Reopen Delaware River Basin Co=missios Docket Nos. D-65-76 CP(8) , D-69-210 CP and D-79-52 CP Under date of September 2, 1982, Delaware Water Emergency Group, Del-AWARE, Unlimited, Inc. , and certain other organizations and individuals (Petitioners), through their counsel, submitted to the Delaware River Basin Commission (DRBC) a document entitled " Petition to Reopen and for Reconsideration and," to Set Aside Prior Orders, and to Take Other Action as Appropriated' Petitioners described themselves therein as " objectors regarding the foregoing orders." In.brief, Petitioners requested DRBC to reopen and, after hearing, to set aside and rescind the actions taken on February 18, 1981, in connection with the Nesha=iny Water Resources Authority (NWRA) application as set forth in Docket No. D-65-76 CP(8) and related prior dockets and the Phila-delphia Electric Company (PECO) application as set forth in Docket No. D-79-52 CP and related prior dockets.

Receipt of this submission was acknowledged by the Secretary of DRBC on September 7,1982, and counsel for Petitioners was ad-vised as follows:

"At the outset, it should be noted that the Rules of the Delaware River Basin Cc= mission (DRBC) do not expressly provide for such a petition. Moreover, there is a questien whether the groups and' individuals you have included as petitioners have standing to make such a request at this time under the circumstances present. The Sections of the Compact and the Rules of DRBC cited in your letter do not necessarily constitute a sufficient basis for such a Petition. Moreover, the U.S. Administrative Procedure Act is not applicable to DRBC as a matter of law."

Petitioners were requested to provide, by Septem-ber 20, 1982, an appropriate affidavit supporting and documenting the factual allegations set forth in the Petition and a brief setting forth any legal authority justifying censideration of the Petition.

Exhibit C e e 6 e e. e & **e e am * =--e * -- + n ** ee -

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Finally, counsel for Petitioners was further cautioned:

"It should be understood that the requests set forth in this letter do not constitute formal acceptance of this Petition, a determination that the Petition is preperly before DR3C, or that the acticn requested of DR3C is in compliance with its Ccmpact and Rules. Such determinations will be made af ter you have provided the additional material requested and respenses have been filed by PECO and NWRA."

Copies of the materials submitted and DRBC's response were provided to PECO and NWRA with a request for any response from the= by October 22, 1982.

Under date of September 13, 1982, counsel f or Petitioners filed an Amended Petition which was esser slly similar to the Petition as originally filed with minor adjus .ments 1. -he text.

On September 13. 1982, Secretary Weisman cen-firmed an earlier telephone conversation extending tne time fer Petitioners to respond until Friday, September 24, 1982. Counsel f or Petitioners also sought to shorten the time available for respenses from PECO and NWRA.

Petitioners were advised in the absence of agreement between counsel that the October 22, 1982 date for responses would not be changed, particularly since Petitioners had requested additional time to file their response. There were additional exchanges of correspondence concerning the filing of responses which are no longer considered pertinent to the issues before the Co= mission.

Petitioners submitted their response on Septem-ber 24, 1982, which consisted of a 14-page document entitled " Documentation in Support of Factual Allegations." Attached to this documentation is an affidavit of Mr. Val Sigstedt, described as a Petitioner in the within action, which affidavit simply recit>_s "that the facts set forth in the attached documentation in support of factual allegations are true to the best of his knowledge, in-fermation and belief." Referred to in this docu=entation and included therewith are a series of documents which are marked as Exhibits numbered from 1-57.

In the 14-page documentation, there is descrip-tive text referring to the factual allegations in the Amended Petitien. The allegations set forth in each numbered paragraph of the Petition are discussed in order. The Exhibits are numbered, described and grouped and are discussed in the order of the numbered allegations set forth in the Amended Petition.

The materials submitted by Petitioners on Sep-tember 24, contained a number of typographic and other errors and corrections had been made on DRBC's copy. Under date of September 28, 1982, Petitioners submitted a corrected " documentation" and requested that this revised material be substituted for the earlier filing.

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Under date of September 30, 1982, counsel f or Petitioners, in his capacity as counsel f or Del-AWARE, submitted comments upcn the DRBC Draft 18th Water Resources Program and the Merrill Creek Draf t Environmental Impact Statement. Del-AWARE requested that these cc=ments be incorporated also within the A= ended Petition.

At the time that the Amended Petition was received, as above noted, DRBC questioned the standing of the Delaware Water Emergency Group and other Co-Petitioners to initiate a request to reopen the Dockets acted upon in February 1981. Petitleners were requested to submit legal authority to support such a request. The documentation filed September 24, and the corrected documentation filed Septe=ber 28, hewever, was limited to materials which Petitioners contend support the various factual allegations set forth in the Amended Petition.

In correspondence with counsel for Petitioners, dated Septe=ber 17, 1982, Miss Weisman stated:

" Finally, I would again caution you that it has not been determined that your ' Petition' is properly before the Cc= mission. As previously indicated, appropriate deter-minations will be made af ter all counsel have submitted the =aterial requested."

By letter dated September 27, 1982, counsel for Petitioners responded to DRBC's letter of September 17 stating:

"In regard to the last paragraph of your letter, I fully understand that it has not been determined that the Petition is properly before the Commission. In that connection, I would appreciate your advising me of any procedural or technical or other correctable inadequacy which might invalidate our Petition, or any rules applicable to such Petitions or governing the receipt or consideration of such Petitions, which we might correct in a timely fashion."

In response to Petitioners' letter of Septem-ber 27, DRBC's General Counsel responded to the inquiry concerning compliance with the Commission's Rules and Procedures. This letter states in part:

"The Cc= mission cannot undertake to advise you with regard to the adequacy or sufficiency of the motien you have filed. The Commission has requested all counsel to submit legal ' authority in support of or in opposition to this application. Based upon the information submitted, as well as my own review of the legal issues present, I will under-take to advise the Commission as to my conclusiens concern-ing the sufficiency and legal appropriateness of the application you have filed. I have not yet completed this review.

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"You may be assured, however, that the materials you have submitted, including the argu=ents in support thereof, as well as the opposing papers filed by PECO and NWRA, will also be provided to all commissioners.

The ca=dissioners, therefore, will have before them all available nacerials before undertaking to act upon and dispose of your application."

Petitioners, since receipt of this letter, have not submitted a me=orandum which respends to DR3C's request for legal authority concerning the sufficiency and legal appropriateness of Petitioners' Application.

Under date of October 22, 1982, both PECO and NWRA submitted responses to the Amended Petition. The response on behalf of PECO included a 41 page memorandum and also enclosed copies of the unpublished decisions of the Nuclear Regulatory Commission referred to in the memorandum and a copy of a letter dated September 28, 1981 from the Pennsylvania Historical and Museum Ccamission. This letter had been sent by the Co= mission to Colonel Roger L. Baldwin, District Engineer, U.S. Army Corps of Engineers, in Phila-delphia. Although not included therewith, the PECO memorandum makes reference to numerous documents related to the various proceedings concerning the Point Pleasant Project.

The response of NWRA consists of a 24-page me=orandum which, by and large, organizes its response to the Amended Petition on a paragraph-by-paragraph basis. Reference is made throughout the NWRA submission to specific documents and 39 separate documents or excerpts were also submitted as part of the NWRA response.

In the absence of a memorandum as to legal issues, the only =aterial supporting Petitioners' right to maintain the Amended Petition is that which is set forth within the Amended Petition itself.

The opening paragraph of the Amended Petition states that it is brought:

"... pursuant to Sections 3.8,13.1 and 15.l(s)1 of the Compact and Sections 2-1.4, 2-1.7, 2-4.16 of the Rules, and the Administrative Procedure Act 5 U.S.C. Sectica 701 ett sec . . . " .

By contrast, the PECO memorandum deals specif-ically and extensively with the legal issues that DR3C requested all counsel to address. The legal contentions of PECO are set f orth primarily on pages 2-12 of its memorandum. PECO contends that Petitioners have failed to show any legal basis for reopening the DR3C Dockets for Point Pleasant and specifically argue that the DR3C Compact and Rules of Practice and Procedure do not author-ice reopening a final Docket decision. The absence of argument to the contrary on behalf of Petitioners is specifically noted by PECO. PECO also contends that Petitioners have failed to demonstrate their standing to seek a reopening 9 e - e *g .,- r q. -geQ + .,- g - y y7 _ _ _ . . _ . , - .g - . " *

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of this matter. Finally, as an extension of its legal arguments , PECO further centends in its ce=orandum, on pages 12-39, that Petitioners have not substantiated their factual allegaticas or cententions. This aspect of Petitioners' contentions will be addressed hereafter.

The response submitted on behalf of NWRA similarly notes Petitioners' failure "to submit a brief referencing legal authority to support the ' procedural aspects' and ' substantive issues' raised in the Amended Petition." Because of the overall structure of the NWRA response, its arguments concerning legal issues are set forth throughout its =ecorandum. Its cc:=ents on these issues, however, ate basically set forth in its covering letter and in pages 1 and 2 and 20-24 thereof.

.Cpinion of General Counsel as to Standine and Leeal Suf ficiencv.

As Executive Director, the undersigned re-quested DRBC's General Counsel to review the materials submitted by Petitioners and the respending caterials submitted by PECO and NWR.". with regard to the issues of standing and legal sufficiency. The full text of his Opinion is attached hereto. In su==ary, the General Counsel has concluded that Petitioners do not have standing to file and maintain their A= ended Petition or to seek the relief de=anded. Moreover, the General Counsel has concluded that even if Petitioners had standing, under DRBC's Rules of Practice and Procedure or otherwise, to initiate a Petition to Reopen, consideration of such a Petition could not be required as a catter of right but would f all within the discretion of the Commission. '

Co= mission Counsel has concluded that separate and apart from the issues of standing and the right to Petition for Rehearing, the Ccamission itself has continuing control of its Dockets. DRBC, therefore, on its own motion, under appropriate circumstances, has the right to undertake a review of its prior Docket decisions even though it is not obligated as a matter of law to do so. Staff, therefore, has reviewed and considered each and every allegation set forth by Petitioners and has made its own independent determination as to whether a review and reconsideration of the February 1981 Docket decisions is appropriate now.

The DRBC staf f response to Petitioners' allega-tions is also attached.

For the reascns that are set forth hereafter, it is the conclusion of staff that the reopening of these Docket decisions by the Cc= mission is not justified at this time. Some further review of these Dockets could become necessary if there is a substantial change in t'n e project as new approved, or if the extent to which the project sponsors are able to proceed is changed as a matter of law or fact. At this time, however, there is not justification for such action.

Sincerely, f Vf Gerald M. Hansler

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Cc=missioner R. Timothy Weston Department of Environ = ental Resources Post Office Box 1467 .

Harrisburg, Pennsylvania 17120 EC

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cc: Cc=1ssioner The:nas P. Eichler, v/ene.

Com issioner Robert E. Hughey, v/ enc.

Mr. Dirk C. Hofman, v/ene.

Cc=:sissioner George J. Kanuck, Jr. , w/ene.

Ccemissioner Russell C. Mt. Pleasant, v/ene.

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Before the Atomic Safety and Licensing Beard , _ _ C, s,'  ;.

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In the Matter of  :

Philadelphia Electric Company : Docket Nos. 50-352

50-353 (Limerick Generating Station, :

Units 1 and 2  :

CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the fore-going Supplementary Motion to Reopen and/or to admit New Contention V-27 and V-28 by mailing a copy of the same to the following persons,this 25 day of May, 1983. .

Lawrence Brenner, Esq., Chairman Administrative Judge U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Richard F. Cole Administrative Judge U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Peter A. Morris Administrative Judge U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ann Hodgdon, Esq.

Benjamin H. Vogler, Esq.

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Troy B. Conner, Jr. Esq.

Conner and Wetterhahn 1747 Pennsylvania Avenue Washington, D.C. 20006

9 Edward G. Bauer, Esq.

Vice President & General Counsel P'hiladelphia Electric Company 2301 Market Street Philadelphia, PA 19101 Secretary U.S. Nuclear Regulatory Commission Attn.: Chief, Docketing & Service Branch Washington, DC 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555 Y,

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/ ifiu % hM Robert J. Suga'rman j

V Dated: May 25, 1983 m

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