ML20080U097

Response Opposing New Contention Proposed by Air & Water Pollution Patrol Re Discharge of Asbestos Fibers.Contention Lacks Basis & Specificity Required by 10CFR2.714(b). Certificate of Svc Encl

ML20080U097
Person / Time
Site:	Limerick
Issue date:	02/29/1984
From:	Wetterhahn M CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8403020163
Download: ML20080U097 (11)

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'84 IE -1 All 37 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION _

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Before the Atomic Safety and Licensing BoaEE E,intG s%r. _

E2;4CH In the Matter of )

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Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

-Units 1 and 2) )

APPLICANT'S ANSWER TO NEW CONTENTION PROPOSED BY AIR & WATER POLLUTION PATROL ON DISCHARGE OF ASBESTOS FIBERS Preliminary Statement On February 21, 1984, counsel for Philadelphia Electric Company (" Applicant") received in the mail from Air & Water Pollution Patrol (Romano) a proposed contention asserting that "certain components in the Limerick nuclear reactors heat exchange system, involving cooling water going into the Schuykill River, are shedding particulate asbestos fibers to contaminate drinking water." The proposed contention also asserted that " asbestos fibers from oegradation of splash bars inside the cooling towers will result in the discharg-ing of ' asbestos fibers into the atmosphere via the air &

water released from the top of the Limerick towers."

Applicant opposes admission of the proposed contention.

No basis is given for this vague contention, which is wholly lacking in any technical - basis. Nor has Mr. Romano even addressed, much less satisfied, the criteria under 10 C.F.R. 8403020163 840229 PM 0 ADOCK 05000352- pg bSo 2

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52.714 (a) (1).- for admitting late contentions. Accordingly, the: contention should be denied.

Argument I...Intervenor Romano has not Satisfied theLRequirements for Admitting a Late Contention.

The late._ contention l proposed by Mr.' Romano may not be admitted unless the presiding Atomic Safety and Licensing Board (" Licensing Board" or " Board") finds that, on balance, the'five factors' enumerated in 10 C.F.R. S2.714 (a) (1) (i)-(v) weigh in intervenor's favor. Duke Power Company (Catawba o

Nuclear - Station, Units 1 and 2) , CLI-83-19, 17 NRC 1041 (1983).1I The very ' failure of Mr. Romanc even to address

.these criteria warrants denial of the contention.2/ It is too late'in.the proceeding for Mr. Romano to argue that he was' unaware of the requirements to address Section 2.714 criteria for the-filing of a late contention. The Board has discussed this requirement on a number of occasions,

-1/' ' Preliminarily, .intervenor has not even met the threshold requirement ~ of 'actually stating a proposed contention.. The request ~should be denied on that basis alone. ~

It'is certainly not the function or this Board

'.to-assimilate an intervenor's vague allegations into a litigable contention, especially at this late stage of the proceeding.

~2/-

Duke Power Company (Perkins Nuclear Station, Units 1, 2 and - 3 ) , ALAB-615, 12 NRC 350, 352 (1980).- See also Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit -No. 1) , CLI-83-25, 18' NRC 327, 331

.(1983).

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including one earlier order specifically denying a proposed

- late contention sought by Mr. Romano.1 In1 any event, the motion fails to meet intervenor's bhrden. to "

af firmatively demonstrate" that he has met the criteria for lateness.A! As .to the first criterion, Mr.

Romano .f ails to indicate when the allegedly "new informa-tion" came to his attention'or by what document or series of events _the information became known to him. Thus, there is absolutely no showing of " good cause" for lateness, which is the paramount consideration. Just as the Appeal Board noted in Midland, the petitioner here has " offered no coherent _or plausible excuse for the delay."5_/ The self-serving decla-

! ration-that " [ a] new contention . . . has just come to the attention" of the 'intervenor .is clearly insufficient to In no way - does this assertion

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establish good cause."

' demonstrate that any "new information" not previously a part

- 3/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), Docket Nos. 50-352-OL '- and 50-353-OL, " Memorandum and Order-(Denying Air and Water Pollution Patrol's Petition for Additional Intervention n

contentio')" (April 12, 1983)- (slip op. at 3) .

4/ Id.

5_/ - Consumers Power Compani (Midland Plant, Units 1 and 2),

ALAB-624, 12 NRC 680,- 682 (1980). See also Metropolitan Edison Com:?any (Three Mile Island Nuclear

. Station, Unit-2), ALAB-184, 5'NRC 612, 615 (1977); Duke Power Company (Cherokee Nuclear ~ Station, Units 1, 2.and

3) , ALAB-440, 6 NRC 642, 643 - (1977) ; Duke Power Company (Perkins Nuclear: Station, Units 1, 2 and 3), ALAB-431,

- 6 NRC 460, 462 (1977).

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of the record has only now become available.5/ The surfac-ing of this - contention at this advanced ~ stage of the pro-ceeding, when the Board and parties are already faced with a full schedule of hearings, renders intervenor's tardiness even more s'ignificant.1 As discussed below, the use of asbestos cement board is not a new development and its use has been . described in the application for construction permits as well as for operating licenses.

When an intervenor is late'without cause, he must make an especially " compelling showing" on the remaining four  ;

. factors.E! Mr. Romano has clearly failed to do so. As to 6/

~

In Catawba, supra, the Commission held that it is a

" basic principle that=a person who invokes the right to participate in an NRC proceeding also voluntarily accepts the obligations attendant upon such participation'," including "having accepted the obligation of uncovering information in publicly available documentary material." Catawba, supra, CLI-83-19,. 17 NRC at 1048. As the Appeal Board likewise stated in Catawba, "an intervention petitioner has an -ironclad obligation to examine the publicly available documentary material pertaining to the facility.in question with sufficient care to enable it to . uncover any information that could serve as the foundation for a specific contention." Catawba, supra, ALAB-687, 16 NRC 460, 468 (1982), rev'd on other grounds, CLI-83-19, 17 NRC 1041 (1983). Ili Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-83-23, 18 NRC 311, 312 .(1983), the Commission reaffirmed the vitality of its holding in Catawba.

-7/ See Washington Public Power Supply System (WPPSS Nuclear Project No. 3) , ALAB-747, 18 NRC (November

.15, 1983) (slip op. at 8).

8_/ Mississippi Power & Light Company (Grand Gulf Nuclear

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.. .e the' second and fourth criteria for admitting late con-tentions, no particular showing has been made by Mr. Romano.

If'intervenor was aware of-this alleged condition for some time, or if the underlying information were available to him, it should have been brought to the attention of the NRC

, Staff during the period for public comments on the Draft Environmental Statement, which was issued in this proceeding in July 1983. At most, these two factors are neutral on the question of admitting the late contention. As the Appeal Board noted in the Summer proceeding, these two factors are ,

to be given relatively lesser weight than the other factors and do not, standing alone, justify admission of a late contention even if they weigh in favor of the intervenor*1 On the third criterion, Mr. Romano has also failed to demonstrate that he could assist the Board in establishing a sound record on this issue. In particular, he has failed to comply with the requirement = of Grand Gulf that "[w] hen a petitioner addresses this criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and (Footnote Continued)

Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982).

9 /_ _ South Carolina Electric & Gas Company (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 (1981).

1

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summarize their proposed testimony." b No expertise or

even basic: competence in the area Mr. Romano seeks to litigate has been alleged. Moreover, based upon previous

-performance, intervenor has not shown himself capable of

. assisting the Board.

The f ifth criterion for admitting late contentions likewise weighs- against intervenor. Admitting the con-tention will inarguably broaden the issues and delay the proceeding. Mr. Romano would certainly request an extended discovery schedule and lengthy preparation time for hear- ,

ings. Given the already crowded Ech'edule of conferences and ,

hearings set by the Board in order to dispose of admitted

. contentions in a timely manner, admission of a new con-tention at - the eleventh hour, more than three years after contentions were initially submitted, would unavoidably cause serious delay prejudicial to the Applicant.

Accordingly, Mr. Romano has failed to satisfy the require-ments'for admission of his proposed late contention.

-10/- Grand Gulf, supra, ALAB-704, 16 NRC at 1730. See also WPPSS, supra, ALAB-747 (slip op. at 18); Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 399-400 (1983).

-11/ It is noted that the Appeal Board in Fermi held that this factor is governed by delay of the proceeding, not delay of operation of the facility. Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2),

-ALAB-707, 16 NRC- 1760, 1765-66 (1982); Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 1146 (1983). Even so, (Footnote Continued)

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y II.- The Proposed. Contention Lacks

• 1 Basis ~and Specificity.

Even ' assuming that the proposed late contention could 1

be otherwise ' allowed, it- should be denied as lacking the

. basis and1 specificity required. by 10 C.F.R. $2.714(b).

- No technical basis' whatsoever is given for the unsupported

- allegation ti. s certain components of the heat exchange r

- system: for Limerick "are shedding particulate asbestos j fibers" Lor that " asbestos fibers from degradation of splash

- bars'inside~the.coolin'g towers will result in the discharg-

'ing. of asbestos fibers 'into the atmosphere via the air & '

water." E The' contention also-lacks specificity in failing I

(Footnote. Continued). '

adt.ission of- a late contention at this juncture could

.very well . impinge upon the issuance of an operating.

licenso for Limerick.

12,/ Seele.g., Commonwealth- Edison Company (Dresden Nuclear Power Station, Unit No. -1) , LBP-82-52, 16 NRC 183, 19.3 .

(1982); Long -Island Lighting Com?any -(Shoreham Nuclear -

Power Station, Unit- .), LBP-8:.-18, 14. NRC 71, .75

. . (1981); Offshore' Power Systems .(Manufacturing License J _ for: Floating Nuclear Power Plants) , LBP-77-48, 6 NRC 249 :(1977).

r' -13/' The ase- of asbestos ma'terials for the . Limerick Generating Station -' cooling,- towers was stated as early as .1972 ' when the Applicant's Environmental Report '-

F Construction Permit Stags (Revised) ("ERCP") was i

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issued. Table 3.5.1 of the ERCP demonstrates that

• asbestos was to be used and that this information was

. - publicly available. The Staff's Final Environmental' Impact' Statement at the construction permit stage also-

.had thisiinformation-(see Table D.lb). Table 10.4-5 of the. Final Safety Analysis Report shows that the splash bars are to be made of asbestos cement board. . However,

~ both page 9;5-17 of ' the ' FSAR and page 3.4-3 of the i Environmental Report Operating License Stage correctly (Footnote Continued) ere e - w , er y- g ,% -

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.to allege _the' specific components involved and the mechanism

.by which the alleged hazard will occur. Further, the proposed cont'ention is unsupported by any evaluation or analysis which demonstrates that emission of asbestos fibers willcoccur,-if at'all,'in any amount which would pose any health hazard. .In short, Applicant is at a loss to under-

-stand how'the discharge of asbestos fibers'into the environ-mentfrom the operation of Limerick will, as alleged, possibly occur.

Conclusion

^

For the re'asons discussed more fully above, AWPP's proposed late contention should be denied.

Respectfully submitted, CONNER & WETTERHAHN, P.C.

Troy B.. Conner, Jr.

. Mark J. Wetterhahn Robert M. Rader Counsel for the Applicant February-29, 1984

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'(Footnote Continued)

> -indicate that'the splash bars (fill) are to be made of

. polyvinyl chloride ("PVC"). FSAR Table 10.4-5 will be

. changed to ' reflect. that the PVC 'is installed , thus correcting ' this minor inconsistency. The only remaining elements made from asbestos cement board are the cooling tower ~ drift. eliminators, which this

-contention does not address.

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1 00LKETED usmc 84 MR-1 All 37 UNITED STATES OF AMERICA

. NUCLEAR REGULATORY-COMMISSIONLFFICE OF SELuiA'.I' 00CEETING l. SEPVlt BRANCH

-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 copies of " Applicant's Answer to New. Contention Proposed by Air & Water Pollution Patrol on ,

' Discharge of Asbestos Fibers," dated February 29, 1984, in '

the1 captioned: matter have been served upon the following by

deposit in the United States mail.this 29th day of February,

~1984:

• LLawrence Brenner, Esq. (2) Atomic Safety and Licensing Atomic Safety and Licensing. Appeal Panel Board, U.S. Nuclear Regulatory U.S. Nuclear-Regulatory- Commission.

Commission Washington, D.C. 20555

, Washington, D.C. 20555-Docketing and Service Section

• Dr. Richard F. Cole Office ~of the Secretary Atomic Safety ~and- U.S. Nuclear Regulatory Licensing Board Commission 20555

~

U.S. Nuclear Regulatory Washington,.D.C.

Commission

-Washington, D.C.--20555 Ann P. Hodgdon, Esq.

Counsel'for NRC Staff Office

• Dr. Peter A. Morris of the Executive Atomic Safety and ^ Legal Director LLicensing Board. U.S. Nuclear Regulatory EU.S. Nuclear Regulatory Commission

' Commission .

Washington, D.C. 20555

-Washington, D.C. 20555 L

• Hand Delivery-

l p

Atomic Safety and Licensing Steven P. Hershey, Esq.

Board Panel Community Legal U.S. Nuclear Regulatory Services, Inc.

Commission Law Center West North

. Washington, D.C. 20555 5219 Chestnut Street Philadelphia, PA 19139 Philadelphia Electric Company ATTN: Edward G. Bauer, Jr. Angus Love, Esq.

Vice President & 107 East Main Street General Counsel Norristown, PA 19401 2301 Market Street Philadelphia, PA 19101 Mr. Joseph H. White, III 15 Ardmore Avenue

• • Mr. Frank R. Romano Ardmore, PA 19003 61 Forest Avenue Ambler, Pennsylvania 19002 Robert J. Sugarman, Esq.

Sugarman & Denworth Suite Mr. Robert L. Anthony 510 North American Building Friends of the Earth of 121 South Broad Street .

the Delaware Valley Philadelphia, PA 19107 106 Vernon Lane, Box 186 Moylan, Pennsylvania 19065 Director, Pennsylvania Emergency Management Agency Mr. Marvin I. Lewis Basement, Transportation 6504 Bradford Terrace and Safety Building Philadelphia, PA 19149 Harrisburg, PA 17120 Phyllis Zitzer, Esq. Martha W. Bush, Esq.

Limerick Ecology Action Kathryn S. Lewis, Esq.

P.O. Box 761 City of Philadelphia 762 Queen Street Municipal Services Bldg.

Pottstown, PA 19464 15th and JFK Blvd.

Philadelphia, PA 19107 Charles W. Elliott, Esq.

Brose and Postwistilo Spence W. Perry, Esq.

1101 Building lith & Associate General Counsel

-Northampton Streets Federal Emergency Easton, PA 18042 Management Agency 500 C Street, S.W., Rm. 840 Zori G. Ferkin, Esq. Washington, DC 20472 Assistant Counsel Commonwealth of Pennsylvania Thomas Gerusky, Director Governor's Energy Council Bureau of Radiation 1625 N. Front Street ~

Protection Harrisburg, PA 17102 Department of Environmental Resources 5th Floor, Fulton Bank Bldg.

Third and Locust Streets Harrisburg, PA 17120

• • . Federal Express

b Jay.M. Gutierrez, Esq.

U.S. Nuclear Regulatory Commission Region I 631 Park Avenue King of Prussia, PA 19406 James Wiggins Senior Resident. Inspector U.S. Nuclear Regulatory Commission P.O. Box 47 Sanatoga~, PA ^19464 Timothy R.S. Campbell Director Department of Emergency Services

14. East Biddle Street .

West Chester, PA 19380 '

/

-Mark (f. Wetterhahn e

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