ML20079L909
| ML20079L909 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 02/17/1983 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8302230488 | |
| Download: ML20079L909 (11) | |
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'!% RC UNITED STATES OF AMERICA 83 FEB 22 A11:j7 NUCLEAR REGULATORY COMMISSION
" w n[:;IV ~
Before the Atomic Safety and Licensing Board im In the Matter of
)
)
Philadelphia Electric Company
)
Docket Nos. 50-352
)
50-353 (Limerick Generating Station,
)
Units 1 and 2)
)
APPLICANT'S ANSWER TO " PETITION FOR RECONSIDERATION OR CERTIFICATION FOR APPEAL" SUBMITTED BY DEL-AWAPE UNLIMITED, INC.
Preliminary Statement By Memorandum and Order dated January 24, 1983, the Atomic Safety and Licensing Board
(" Licensing Board" or
" Board") in the c5ptioned proceeding denied the previously filed application by Del-Aware Unlimited, Inc.
(" Del-Aware")
to add three new contentions relating 'to the supply of supplemental cooling water by means of the Point Pleasant Diversion Project.1!
On February 2,
- 1983, Del-Aware filed a petition seeking rec,nsideration or certification for appeal of the Licensing Board's denial of leave to amend.
Applicant opposes these requests for. relief on the grounds that no basis for reconsideration has been shown, 1/
See Memorandum and Order (Denying Del-Aware's Petition to Amend Contentions) (January 24, 1983).
K O!hhhh2 PDR
nor is the Board's denial of additional contentions a matter of such significance as to qualify for interlocutory review by the Commission.
No new facts or arguments have been presented which the Licensing Board has not already fully considered and the instant petition is therefore simply a i
repetition of Del-Aware's legal theories previously argued and rejected by the Board.
The request for reconsideration or certification for appeal should.theiefore be denied.
Argument Preliminarily, while licensing boards pcssess inherent authority to reconsider their interlocutory rulings,2/
it is submitted that reconsideration is warranted only where a i
party asserts the board has overlooked some important matter of fact, law or policy.
The instant. petition does not assert any factual, legal or policy argument not contained in Del-Aware's initial pleadings already considered by the Board.
Instead, the instant petition simply attempts to denigrate the administrative impartiality of the Delaware 2/
Public Service Company of Indiana, Inc.
(Marble Hill
~
Nuclear Generating Station, Units 1 and 2), ALAB-493, 8 NRC. 253, 260 n.27 (1978); Portland General Electric Company (Trojan Nuclear Plant),
" Order Regarding Staff's Motion for Reconsideration of Consolidation of Intervenors" (October 17,'1979) (slip op. at 1-2).
3/
Cf.
10 C.F.R.
S2.786 (b) (1)
(standard for filing petition for review with the Commission).
I i
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River Basin' Commission
("DRBC")b and.
continue its j
ongoing disagreement with the Licensing Board as to the responsibilities of DRBC to allocate water resources within the Delaware River Basin under its Compact.
Nothing i
Del-Aware has said therefore warrants reconsideration by the Board.
-Although purporting to deal with all three proposed content *.ons, the request for reconsideration primarily addresses proposed Contention V-24, dealing with alternative supplemental cooling water supplias.
Del-Aware. recounts the fact that' the Licensing Board rejected this contention because it determined at an earlier stage that it would not consider the overall acceptability of the river follower method of cooling Limerick absent a determination of "sig-
]
nificantly increased environmental impacts"5_/-
or, con-versely, a chowing that the deletion of Unit 2 would make possible utilization of an alternative with "significantly i
4_/
For example, Del-Aware asserts that DRBC has prejudged the Merrill Creek Reservoir application and is only giving
" lip service" to the need to evaluate its envircnnental impact statement.
Petition for Reconsideration at 1.
Elsewhere, Del-Aware charges that "DRBC is an advocate of the Point Pleasant diversion," as opposed to the agency with decisional authority.
M. at 5.
5/
Memorandum and Order at 9, citing Limer;~;k, 15 NRC at 1464.
4 4 ~
I'
~
smaller environmental impacts thani the proposed Point Pleasant diversion river follower system,"5 In its motion, Del-Aware makes two significant con-cessions.
First, it acknowledges that it "never contended that these options
[ alternatives to the Point Pleasant Diversion] were made possible"1 by the deletion of Unit 2.
- Thus, Del-Aware admits that its proposed contention cannot be allowed under the rationale of the Board's June 1, 1982 Special PJehearing Conference Order.
Second, Del-Aware contends that these alternatives should be considered because they are "more economically attractive."8_/
However, as the Appeal Board stated in the Clinton proceed-ing, the NRC is not " authorized to require an appli-cant to accept or reject an alternative solely on the basis of its ecc..tomic costs.
That is a business judgment which is outside the sccpe of our NEPA review."b!
Similarly in 6/
Memorandum and Order at 9.
,7 /
Petition for Reconsideration at 2.
8/
Id.
9_/
Illinois Power Company (Clinton Power Station, Unit Nos. 1 and 2), ALAB-340, 4 NRC 27, 48 (1976).
In an earlier case, the Appeal Board noted that where two alternatives have not "been shown to presen; a
significant environmental threat, it is not for [the NRC] to compel the applicant to choose the one which seemingly would best serve its economic self-interest."
Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 862 (1974).
-North Anna, the Appeal Board reiterated its earlier holdings that there need not be a " consideration of suggested alter-natives which were said to be economically (but not environ-mentally) superior to the construction and operation of the proposed nuclear facility."10/
Del-Aware's assertion that neither the. NRC nor DRBC determined "whether the need -for water at Limerick is sufficient to. justify the cost to the Delaware River"b!
relative to other sources for Limerick and uses of Delaware River water is patently without merit.
It appears that Del-Aware is, once again, confusing the responsibilities of DRBC for' performing a cost / benefit analysis of the entire Point Pleasant project with the saparate responsibility of the.NRC to do so for Limerick.
The NRC has already de-l termined that the overall cost / benefit balance for Limerick favors operating the facility by utilizing the river follow-er mode, even without a.
supplemental reservoir.12/
In other
- words, the Appeal Board determined that the cost / benefit balance tipped in favor of operating the Limerick Station under the river follower mode regardless of the final details of the project as approved by DRBC.
It 10/
Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 456 (1980).
M/
Petition for Reconsideration at 3.
M/
Limerick, ALAB-262, 1 NRC at 200.
1
did so even though it acknowledged, as the Licensing Board' noted, that ultimately it would be up to DRBC to decide needed.13/
Given whether a supplemental reservoir were the ruling in ALAB-262 that the river follower mode tips the cost / benefit ratio in favor of operating
- Limerick, the Licensing Board correctly held that Del-Aware cannot reliti-gate th23 matteT at the operating license stage simply by alleging other alternatives whose very availability is doubtful-and whose environmental impacts have not been shown to be significantly less.14/
13/
Memorandum and Order at 6 n.2, citing Limerick, 1 NRC at 206.
14/
For its part, DRBC ' determined that providing water to Limerick in this manner "does not conflict with nor adversely affect the Comprehensive Plan.
It provides beneficial use of the water resources, is financially and physically feasible, conforms to accepted policy, and does not adversely influence the present or future use and development of the water-resourcer of the l
Basin."
DRBC Docket No. D-69-210 CP at p.
8 (November l
5, 1975).
In approving the water allocation for Limerick, D2BC expressly " conclude [d] that all of the requirements of NEPA have been satisfied I_d.
at 15.
Subsequently, in approving the final details of the project, DRBC determined that the Point Pleasant project would have insignificant environmental consequences, thereby justifying construction i ad operation of the overall Point Pleasant project.
See DRBC Negative Declaration, North Branch Water Treatment Plant and Related Components (August 25, 1980).
- Thus, DRBC carefally considered all environnental costs and benefits associated with the Point Pleasant project, including all related components, and concluded "that the proposed project would be a feasible and beneficial use of water resources in the Neshaminy and Perkiomen Watersheds and not detrimental to the Delaware River, Therefore, whatever its theories about the availability of other sources of supplemental cooling water, which are truly speculative and conjectural to the nth degree, there is no basis for reviewing the river follower mcde of opera-tion-approved in ALAB-262 absent a threshold demonstration, which Del-Aware has not provided, of "significantly in-creased environmental impacts"E not considered as part i
.of the cost / benefit analysis at the construction permit stage.
In requesting the Licensing. Board to permit litiga-tion over an alternative water supply, be.it for one or-two units, Del-Aware is therefore asking the Board to ignore the Commission's regulations in 10 C.F.R.
S50,21, the Appeal Board's decision at the construction permit stage in ALAB-262 and the Board's own Special Prehearing Conference Order determining the NLC's rasponsibilities under. its regulations and NEPA for Limerick at the operating license stage.
As a final matter, it is clear that the alternative request for certification must be denied under the Com-mission's rules prohibiting appeal of less than all denied l
4 provided that mitigating measures are implemented Final Environmental Assessment for the Neshaminy Water Supply
- System, Part
- III, p.
2-53 (August 1980).
15/
15 NRC at 1464.
.r
.-.m
contentions.E The decisions are legion -holding such interlocutory appeal is -impermissible.17/
Cortainly the issue of whether these additional contentions should be i
admitted does not-begin to satisfy the strict standards for direct certification under 10 C.F.R. S2.718 (i).18 /
Conclusion For the reasons more fully discussed above, Del-Aware's request for reconsideration or certification for appeal of s
16/
10 C.F.R.
SS2.714a(b); 2.730 (f).
M/
Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-585, 11 NRC t
- 469, 470 (1980); Houston Lighting and ' Power Company (Allens Creek Nuclear Generating
- Sdation, Unit 1),
Docket No. 50-466, " Order" (February 9, 1979) (slip op.
i at 3-4).
See also Cleveland Electric Illuminatinq Company (Perry Nuclear Power Plant, Units 1 and 2),
ALAB-706 (December 15, 1982)
(denying certification to review admitted contentions).
-18/
See generally United States Department of Energy (Clinch River Breeder Reactor Plant), ALAB-688 (August 25, 1982); Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2)), ALAB-514, 8 NRC 697 (1978); Public Service Company of Indiana, Inc.
(Marble - Hill Nuclear Generating Station, Units 1 and
- 2),
ALAB-393, 5
NRC 767 (1977);
Long Island Lighting Ccmpany (Jamesport Nuclear Power
- Station, Units 1 and 2), ALAB-353, 4 NRC 381 (1976); Public l
Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478 (1975).
i i
l
the Licensing ' Board's Memorandum' and Order of January 24, 1983 should be denied.
Respectfully submitted, CONNER & WETTERHAHN, P.C.
O
/,4g >f/3
<> > T-x 24 Q Troy B('C,onner, Jr.
Robert Y. hader Suite 1050 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 202/833-3500 Counsel for the Applicant February 17, 1983 l
l l
l.
1
s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
Philadelphia-Electric Company
)
Docket Nos. 50-352
)
50-353 (Limerick Gene 2ating Station,
-)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Answer to
' Petition for Reconsideration or Certification for Appeal' Submitted by Del-Aware Unlimited, Inc." dated February 17,
- 1983, in the captioned matter have been served upon the following by deposit in the United States mail this 17th day of February, 1983:
Judge Lawrence Brenner (2)
Docketing and Service Section Atomic Safety and Licensing Office of the Secretary Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Ann P. Hodgdon, Esq.
Judge Richard F. Cole Elaine I. Chan, Esq.
Atomic Safety and Licensing Counsel for NRC Staff Board Office of the Executive l
U.S. Nuclear Regulatory Legal Director Ccmmission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Judge Peter A. Morris Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel l
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Atomic Safety and Licensing Philadelphia Electric Company Appeal Panel ATTN:
Edward G. Bauer, Jr.
U.S. Nuclear Regulatory Vice President &
Commission General Counsel Washington, D.C.
20555 2301 Market Street l
Philadelphia, PA 19101 l
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Mr. Frank R. Romano Walter W. Cohen, Esq.
-61 Forest Avenue Consumer-Advocate Office of Ambler, Pennsylvania 19002 Attorney General 1425 Strawberry. Square Mr.-Robert L. Anthony Harrisburg, PA 17120 Friends of the Earth of the Delaware Valley W. Wilson Goode P. O. Box 186.
Managing Director 103 Vernon Lane City of Philadelphia Moylan, Pennsylvania 19065 Philadelphia, PA Mr. Marvin I. Lewis Steven P. Hershey, Esq.
6504 Bradford Terrnce Community Legal Philadelphia, PA 19149 Services, Inc.
Law Center Judith A.
Dorsey, Esq.
North Central Beury Bldg.-
1315 Walnut Street 3701 North Broad Street Suite 1632 Philadelphia, PA 19140 Philadelphia, PA 19107 Donald S. Bronstein, Esq.
Charles W. Elliott, Esq.
1425 Walnut Street 123 N. 5th Street Philadelphia, PA 19102 Suite 101 Allentown, PA 18102 Mr. Joseph H. White, III 8 North Warner Avenue Mr. Alan J. Nogee Bryn Mawr, PA 19010 4
3700 Chestnut Street Philadelphia, PA 19104 Dr. Judith H. Johnsrud Co-Director,'ECNP 433 Robert W. Adler, Esq.
Orlando Avenue State Assistant Counsel College, PA 16801 Commonwealth of Pennsylvania Sugarman, Esq.
DER Robert J.
505 Executive House Sugarman & Denworth P.O.
Box 2357 Suite 510 Harrisburg, PA 17120 North American Building 121 South Broad Street Thomas Gerusky, Director Philadelphia, PA 19107 Bureau of Radiation Protection James M. Neil_, Esq.
Department of Environmental Box 217 Resources Plumsteadville, PA 18949 i
5th Floor, Fulton Bank Bldg.
Third and Locust Streets Director Pennsylvania Harrisburg, PA 17120 Emergency Management Agency Basement, Transportation and Safety Building Harrisburg, PA 17120 1
R6bert M.
Rader l
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