ML20083K000
| ML20083K000 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 04/12/1984 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | |
| References | |
| NUDOCS 8404160021 | |
| Download: ML20083K000 (13) | |
Text
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4
' fD N1 4?o UNITED STATES OF AMERICA 2 pI NUCLEAR REGULATORY COMMISSION Gry Before the Commission In the Matter of
)
)
Philadelphia Electric Company
)
Docket Nos. 50-352
)
50-353 (Limerick Generating Station,
)
Units 1 and 2)
)
APPLICANT'S BRIEF IN OPPOSITION TO REQUEST BY INTERVENOR FRIENDS OF THE EARTH FOR A STAY OF ONSITE STORAGE OF UNIRRADIATED FUEL Introduction In a
pleading dated February 23,
- 1984, intervenor Friends of the Earth
(" FOE")1 sought the admission of a new contention related to an application filed by Applicant Philadelphia Electric Company
(" Applicant") on June 1, 1983 and an amended application filed January 24, 1984, regarding receipt and onsite storage of untrradiated fuel at Limerick Generating Station, Unit 1 (" Limerick").
Both the NRC Staff and Applicant opposed admission of the new, late proposed contention.-
During a prehearing conference in progress. on other matters, the. presiding Atomic Safety and Licensing - Board 1/
Robert H.
Anthony is the representative of FOE, which is the designated intervenor admitted by the Licensing Board below.
See Philadelphia Electric Company (Limerick Generating
- Station, Units 1
and 2),
LBP-82-43A, 15 NRC 1423, 1440-(1982).
O DR DR 1:
h03 r
m
(" Licensing Board") heard lengthy oral argument from FOE and other parties on the proposed contention.
As discussed more fully in the Licensing Board's subsequent written Order contention,2_/
confirming denial of the new FOE failed to advance any basis for its proposed contention and did not even address any of the four criteria applicable to the grant of a stay.
The Licensing Board's detailed analysis adequately demonstrates that none of the various arguments raised by FOE provided any basis for the denied contention as required by 10 C.F.R. 5 2.714 (b).
The Licensing Board expressly found, as discussed below, that nothing alleged by FOE presented any credible threat to the public health and
- safety.
On appeal, the presiding Atomic Safety and Licensing
-Appeal Board
(" Appeal. Board") -
affirrr.ed the Licensing Board's dismissal of FOE's contentions for lack of basis and specificity.- In'particular, the Appeal ~ Board reviewed each
' 2/.
Philadelphia Electric Company (Limerick Generating
~ ~
Station,. Units.I and 2), Docket Nos. 50-352-OL and 50-353-OL,'. " Memorandum.and Order on FOE's. Contentions and LEA'.s Petition Based.on a' Part 270 ': Application to
_ Store New-Fuel".(March 16, 1984).'
- 3/
In. an Order dated March 22,-
- 1984, the Commission
' delegated to,the Appeal Board its. authority to~ exercise-
--the review functions'over Part.70 issues raised in this-proceeding. which otherwise would have ibeen exercised-and performed by the: Commission, t
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of the hypothetical events postulated by FOE as a basis for its contention and concluded:
FOE's purported contentions are unfo-
'cused and contain no attempt to identify with reasonable specificity the basis of the perceived risks from the temporary outdoor storage of unirradiated fuel assemblies packed in special shipping containers.
The Licensing Board quite properly dismissed them on that ground.
But even though FOE's filings were thus deficient, the Board was sensitive to what it believed to be FOE's fundamental misapprehension about the delivery and temporary outdoor storage of the fuel -
i.e.,
that the fuel could somehow go critical with a corresponding risk to the public, or that through some non-criticality mechanism the fuel could release harmful radiation.
The Board correctly pointed out that there is simply no conceivable, credible explana-tion for either to occur.5/
Accordingly,.
the Appeal Board not only denied the stay requested by FOE below,-
but also affirmed the Licensing Board's-. ultimate conclusion in denying FOE's proposed contentions for lack of basis and specificity.1/
In so affirming, the LAppeal' Board noted~ that its conclusions and those of the Licensing Board -were buttressed by af fidavits 4/L ' See Limerich, supra, ALAB-765, 18 NRC (March-30,
. TIT 4) (slip op. at 10).
J5/_ L Id. at 12-13u(emphasis added).
.6/
.Id. at 21 n.22.
1/,
jf.1 at 2,.17.
1 V
4; 2
L
and Applicant,8/
which had led the provided by the Staff Licensing Board to confirm its earlier bench ruling in a subsequent written order, holding:
[N]o credible accident involving unirra-diated new fuel rods could cause ra-diation releases in excess of the limits set by the Commission's regulations.
The accidents FOE postulates in its response are highly unlikely, and the chain into which FOE then weaves them is incredible.
There is no reason to assume such a chain of events.
More-over, FOE proffers no bases to think that even if the events it postulates were to take place, radiation in excess of limits set by the applicable regu-lations would be released."9/
Accordingly, FOE has failed to carry its burden in requesting a stay.
The rejection of its proposed contention by the Licensing Board at the outset, as affirmed by the Appeal Board, demonctrates in and of itself that FOE is extremely unlikely to succeed ultimately on the merits.
Given the strongly stated findings by the Licensing and Appeal Boards that no credible risk of injury to the public exists, FOE's stay request is also deficient in demonstrat-ing any possibility of harm, irreparable or otherwise, as a result of receipt and onsite storage of unirradiated fuel at Limerick.
Nor has FOE. established an absence of harm to 8/
Id. at 11,-14-15.
9/
Limerick, supra, " Memorandum and Order Confirming March 21, 1984 Oral Ruling on Affidavits About Radiation Releases' From Unirradiated New Fuel Rods" '(March. 26, 1984) (slip op. at 2).
~
Applicant or shown any public interest favoring a stay.
Moreover, as discussed below, fuel has been received onsite, thereby mooting the request for a stay.
Hence, Applicant opposes FOE's request for stay.
Argument In determining whether.to grant or deny an application for a stay, the Commission is required, pursuant to 10 C.F.R. 52.788 (e), to consider:
(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted;
-(3) Whether the granting of a stay would harm other parties, and (4) Where the public interest lies.p/
As the moving party, FOE bears the burden of persuading the Appeal Board that it is entitled to a stay.b
-FOE has not met : this burden ' as to any.. of the ~four governing criteria
- and, accordingly, its application - for a stay should be denied.
, M/
See generally; Alabama Power Company (Joseph M.
Farley.
Nuclear Plant, Units 1 and 2), CLI-81-27, 14 NRC -'7 95 (1981);
Environmental ' Radiation Protection ' Standards for Nuclear Power Operations, CLI-81-4, 13 NRC 298, 301
- (1981) ; - United States Department of Energy (Clinch River Breeder Reactor Plant), ALAB-721, 17 NRC 539, 543.
(1982).
.M/
- Farley, supra, CLI-81-27, 14 NRC at 797.
Public (Footnote Continued)
~
y, 6-5 As to the first factor, FOE's showing as to the likeli-hood of success on its contention is virtually nil inasmuch as the Licensing and Appeal Boards found no basis whatsoever for admitting the proposed contention.
To satisfy the first factor for granting a stay, FOE must do more than merely
- establish possible grounds for appeal of its denied con-tention. b Yet, FOE has simply advanced the same scenarios rejected by the Licensing and Appeal Boards as wholly incredible under the laws of physics. b Under the Commission's rules for the granting of contentions, an intervenor need only provide some basis for a proposed contention, the merits of which will be litigated
. later. b
_Accordingly, 'the Licensing and Appeal Boards'
= rejection of each of. the several bases alleged by FOE, mainly because there was no explanation of how unirradiated fuel-could cause the public any harm,EI clearly establish-es' that FOE has not mustered the showing necessary to
'(Footnote Continued)
Service Company -of Indiana' (Marble Hill, Nuclear Generating Station, Units 1 and 2 ), ' ALAB-4 9 3, ' 8 NRC
. 2 5 3,. 2 7_0 (1978).
M/
Farley,- supra,=CLI-81-27, 14 NRC at 797'.
13/. See generally,, Limerick, supra,.ALAB-765 (slip op. at W17 ). -
14/
"See,_e.
., -Houston-Lighting and Power Company (Allens.
+
7 ETeek-- uc ear Generating station, Unit.1),.ALAB-590, 11 pz '
'NRC7542.(1980).-
- 15 / -'
L i m e r i c k, - s u p r a,c. Memorandumland Order on FOE ' s -' r See
~
Etentions" (March 16,1984) (slip 'op. at 16-21).
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establich a likelihood of prevailing on the technical merits of its contention.
As the Licensing Board aptly found, there is no credible claim under the laws of physics that critical,EI nor is there any unirradiated fuel can go credible non-criticality accident involving low-enriched, unirradiated uranium oxide fuel which could threaten the public health end safe ty.EI agreed,N The Appeal Board holding that
" [el ven construing FOE's contentions in a manner most favorable to FOE, we can see no way that these conditions (the factors necessary for criticality to occur]
postulates."E!
can be. achieved in the situations that FOE In opposition to the stay, Applicant adopts and incorporates by' reference the affidavits filed with the Licensing Board below,.which fully support the Boaris' conclusions. 0/
As. to the second factor, involving possible irreparable injury," FOE has sia 11arly failed to make the necessary showing for the same reasons.
The Licensing Board ccrrectly
'found that none of~the accidente postulated by FOE presented S
l
.J 16/' Id.'at'17-18.
11/ 1 M. gat 19.
,1_8/
See note 13, supra.
8 s
19/, Limerick, supra,.ALAB-765 (slip op, at 13).
9 20'/fSeb,. Affidavit of.Lubomir'B. PyrihiRegarding Storage of 1
~
UnTrradiatied. Fuel 'at the Limerick Generating Station g(March U, 1984)y! Affidavit of Paul S.-Stansbury (March 12,1934)).
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, any credible threat to the public health and safety inasmuch as no fission products could result from stored, unirradi-ated fuel, and because the crushing of uranium oxide pellets by an airplane,
- tower, or other large object would not result in the dispersion of an'f material potem' ally injuri-safety.bI ous to the public health and Here again, the Appeal Board agreed.- !
Accordingly, FOE has made no showing whatsoever as to any possible irreparable harm, perhaps the most critical of the four criteria.N!
As to the third factor, the granting of a stay for any extended period could inflict serious harm upon Applicant if it were foreclosed from meeting its scheduled date for fuel loading.
As indicated in its letter to the NRC dated March 22, 1984, Applicant has scheduled fuel loading for August 1, 1984.
Thus, any lengthy interruption of receipt and storage
.of fuel onsite creates a potential for delay of fuel load-1
'ing, low-power testing and, ultimately, commercial operation of the Limerick Generating Station.
Furthermore, Applicant is -incurring substantial costs for ' storage of fuel at the fabricator which would not be incurred if fuel were received as' scheduled at'the site.
21/J Limerick,
- supra,
" Memorandum and Order on FOE's Contentions"
' March 16, 1984) (slip op. at 19).
_ g/' Limerick, supra, ALAB-765 (slip op. at 12-16).
M/.See Environmental' Radiation Protection ' Standards for~
+(Footnote Continued)
. o As to the last factor for considering a stay, the public interest favors prompt completion of the licensing proceedings for Limerick, the issuance of operating licenses and commencement of commercial operations as soon as possi-ble in order to provide the electrical power which will be generated from Limerick.
It is not in the public interest to delay the licensing of Limerick in order to explore what the Licensing Board has determined to be imaginary and 3.ncredible risks postulated by FOE in its rejected con-tention.
Finally, as the Commission is aware, fuel was initially received onsite at Limerick on March.10, 1984.E/
Because fuel has in, fact been received onsite, the request by FOE for a stay 'of its receipt is now moot.
The NRC does not review moot issues. E!
(Footnote Continued)
Nuclear Power Operations, supra, CLI-81-4, 13 NRC.at 301; Farley, supra, CLI-81-27, 14 NRC at 797; Clinch River, supra, ALAB-721, 17 NRC.at 543.
24_/
Following the Appeal Board's decision in ALAB-765, the NRC issued on April 3,
1984 Materi'als License No.
SNM-1926 (revised) which
" authorizes the
- receipt, possession and storage of uranium enriched in the U-235 isotope contained in fuel assemblies in their shipping containers in the designated outdoor New Fuel Storage Area" at Limerick.
Notice of. Applicant's receipt of fuel shipment was.given by Applicant to Region I~as well-as to the Office of the General Counsel at that' time.
-25/
- See, e.g.,
Metropolitan Edison Company (Three. Mile Island Nuclear Station, Unit.1), CLI-83-3, 17 NRC. 7 2,
74 (1983); United States Department of' Energy (Clinch (Footnote Continued).
~-
.s s Conclusion For the reasons discussed more fully above, FOE has failed to, carry its burden in establishing its entitlement to a stay.
None of the four factors governing issuance of a stay lies in its favor.
FOE's application for a stay should therefore be denied.
Respectfully submitted, CONNER & WETTERHAHN, P.C.
W(
r Troy
. Conner, Jr.
Mark J. Wetterhahn Robert M. Rader Counsel for the Applicant April 12, 1984
'(Footnote Continued)
-River Breeder Reactor Plant), CLI-82-23, 16 NRC ~412,
.419 (1982); Consolidated Edison Company of New York, Inc. (Indian Point, Unit No. 2),-CLI-81-7, 13 NRC 448, 449 (1981).
I a
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(
UNITED STATES OF AMERICA j
NUCLEAR REGULATORY COMMISSION.
I 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 Brief in Opposition to Request by Intervenor Friends of the Earth for a Stay of Onsite Storage of.Unirradiated Fuel,"~ dated April 12, 1984, in the~ captioned _ matter, have been served upon the following by deposit in the United States mail this 12th day of April,1984:
- Christine N. Kohl, Esq.
Dr. Richard F.' Cole Atomic
' Chairman. Atomic Safety and Safety and Licensing Board Licensing U.S. Nuclear Regulatory
. Appeal Board U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.-
20555 Dr.-Peter A. Morris Atomic Gary J. Edles1 Safety'and Licensing-
' Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory.
' Commission
. Commission Washington', D.C.
20555 Washington, D.C.
20555' Atomic Safety and Licensing-
' Dr. Reginald L.:Gotchy Appeal Panel Atomic Safety and Licensing-U.S.-Nuclear Regulatory Appeal' Board Commission U.S. Nuclear Regulatory-Washington, D.C.
_20555 Commission Washington,'D.C.
- 20555, Docketing andfService Section Office of the Secretary
' Judge LawrencejBrenner,Esq.
U.S.' Nuclear Regulatory LAtomic Safety and. Licensing Commission _
L, Board.
, Washington, D.C; ~20555
- U.S.LNuclear Regulatory Commission
- Washington, D.C.
20555-t L1-1
v 9
Ann P. Hodgdon, Esq.
Steven P. Hershey, Esq.
Counsel for NRC Staff Community Legal Office of the Executive Services, Inc.
Legal Director Law Center West North U.S. Nuclear Regulatory 5219 Chestnut Street Commission Philadelphia, PA 19139 Washington, D.C.
20555 Angus Love, Esq.
Atomic Safety and Licensing 107 East Main Street Board Panel Norristown, PA 19401 U.S. Nuclear Regulatory Commission Mr. Joseph H. White, III Washington, D.C.
20555 15 Ardmore Avenue Ardmore, PA 19003 Philadelphia Electric Company ATTN:
Edward G. Bauer, Jr.
Robert J.
Sugarman, Esq.
Vice President &
Sugarman, Denworth &
General Counsel Hellegers 2301 Market Street 16th Floor, Center Plaza Philadelphia, PA 19101 101 N. Broad Street Philadelphia, PA 19107 Mr. Frank R.
Romano 61 Forest Avenue Director, Pennsylvania Ambler, Pennsylvania 19002 Emergency Management Agency Basement, Transportation
- Mr.
Robert L. Anthony and Safety Building Friends of the Earth of Harrisburg, PA 17120 the Delaware Valley 106 Vernon Lane, Box 186 Martha W. Bush, Esq.
Moylan, Pennsylvania 19065 Kathryn S. Lewis, Esq.
City of Philadelphia Mr. Marvin I. Lewis Municipal Services Bldg.
6504 Bradford Terrace 15th and JFK Blvd.
. Philadelphia, PA 19149 Philadelphia, PA 19107 Phyllis Zitzer, Esq.
Spence W.
Perry, Esq.
Limerick Ecology Action Associate General Counsel P.O. Box 761 Federal Emergency 762 Queen Street Management Agency Pottstown, PA 19464 500 C Street, S.W., Rm. 840 Washington, DC 20472 Charles W. Elliott, Esq.
Brose and Postwistilo Thomas Gerusky, Director 1101 Building lith &
Bureau of Radiation Northampton Stree+.s Protection Easton, PA 18042 Department of Environmental Resources-Commonwealth of Pennsylvania 5th Floor, Fulton Bank Bldg.
DER Third and Locust Streets 505' Executive House Harrisburg, PA 17120 P.O. Box 2357 Harrisburg, PA -17120-
- Federal-Express
-m
J o
Jay M. Gutierrez, Esq.
U.S. Nuclear Regulatory Commission Region I.
631 Park Avenue King of Prussia, PA 19406 Zori G.
Ferkin Commonwealth of Pennsylvania Governor's Energy Council P.O. Box 8010 1625 N. Front Street Harrisburg, PA 17102 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 WestChesper,PA 19380 Samuel J. Chilk, Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555
~
Robert M. 'Rader
- Hand Delivery eg.
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