ML20087M478

Brief in Opposition to Intervenor Friends of the Earth for Stay of Onsite Storage of Unirradiated Fuel.Stay Request Fails to Demonstrate Any Conceivable Harm as Result of Fuel Storage.Certificate of Svc Encl

ML20087M478
Person / Time
Site:	Limerick
Issue date:	03/28/1984
From:	Wetterhahn M CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:
References
NUDOCS 8403290384
Download: ML20087M478 (11)

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!ND UNITED STATES OF AMERICA '84 hg NUCLEAR REGULATORY COMMISSION N0 :49 Before the Atomic Safety and Licensing Appeal h[da'r~d}~f(, . -

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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 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")M sought the admission of a new contention telated 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 unirradiated 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 l (Limerick ' Generating Station,- Units 1 and -2), l LBP-82-43A, 15 NRC 1423, 1440 (1982).

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(" 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 confirming denial of the new contention, 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.

Accordingly, FOE has failed to carry its burden in requesting a stay because the rejection of its proposed contention at the outset, in and of itself, demonstrates that FOE is very unlikely to succeed ultimately on the merits. FOE's stay request is also deficient because'it has failed to demonstrate any conceivable possibility of harm, irreparable or otherwise, as a result of onsite storage of unirradiated fuel. Nor has FOE established an absence of

-2/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2) , Docket Nos. 50-352-OL and 50-353-OL, "Memorandmn and. Order on FOE's Contentions and LEA's Petition Based on a Part 70 Application to Store New Fuel"'(March 16, 1984).

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, i harm to Applicant or any public interest favoring a stay.

Hence, Applicant' opposes FOE's request for a stay. -

Argument In determining whether to grant er deny an application i for a stay, the Appeal Board is required, pursuant . to .10 '

C.F.R. S2.788 (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; i

(3) Whether .the granting of a stay would harm other parties, and (4) Where the public interest lies.4/

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i 3/ In an Order dated March 22,- -1984, the Commission'-

delegated to the ' Appeal . Board authority ' to ~ exercise review functions over - Part. 70 ' issues raised in this-.

proceeding which otherwise would have been exercised' and performed by the Commission.. In a subsequent Order:  :)

dated . March 27,- 1984, the _ Appeal _ Board requested-receipt of any opposition to FOE's stay reque sted . -by .

the close of business ' Thursday, ' March 129 , 1984.. .The Appeal-Board: imposed'aitemporary stay-of~the' Licensing Board's order inIthe. interim.

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' See generally Plant, 'Units Alabama 1 and:Power Company 14 ' (Joseph

- NRC: M. - Farley/

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Nuclear 2) , - CLI-81-27, L795 (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', J 54 3 (1982).

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5 As the moving party, FOE bears the burden of persuading the Appeal Board that it is entitled to a stay.1I FOE has not met this burden as to any of the four governing criteria and, accordingly, its application for a stay should be denied. -

As to the first factor, FOE's showing as to the likeli-hood of success on its contention was so weak that the Licensing Board found no basis whatsoever for admitting the proposed contention. To meet this standard, FOE must do more than merely establish possible grounds for appeal of its denied contention.b Yet, FOE has not even attempted to demonstrate that the Licensing Board erred in rejecting its proposed contention, but has simply recapitulated the unadorned arguments it presented to the Licensing Board below.

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.7/ Accordingly, the Licensing Board's rejection of

-5/ Farley, supra,- CLI-81-27, 14 NRC at ~797. Public Service Company of Indiana (Marble Hill . Nuclear Generating Station, Units 1 and 2) , ALAB-493, 8 NRC 253, 270 (1978)..

6/ Farley, supra, CLI-81-27,_14 NRC at 797.

-7/ See, e.g., Houston Lighting and Power Company ' (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542 (1980).

4 each of the several bases alleged by FOE, largely because there was no explanation of how unirradiated fuel could cause the public any harm,- clearly establishes that FOE cannot possibly muster the showing necessary to establish 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 unirradiated fuel can go critical,EI nor is there any credible non-criticality accident involving low-enriched, unirradi-ated uranium oxide fuel which could threaten the public health and safety. b In opposition to the stay, Applicant adopts and incorporates by reference the affidavits filed with the Licensing Board below. - !

As to the second factor, involving possible irreparable injury, FOE has similarly failed to make the' necessary showing for the same reasons. The Licensing Board correctly 8/

Limerick, supra, " Memorandum and Order on FOE's Contentions" (March 16, 1984) (slip op. at 16-21).

9/ Id. at 17-18, 10/ Id. at 19.

11/ See Affidavit of Lubomir B. Pyrih Regarding Storage of Unirradiated Fuel at the Limerick Generating Station (March 13, 1984); Affidavit of Paul S. Stansbury (March 12, 1984). In a subsequent Memorandum and Order: dated March 26, 1984, the Licensing ~ Board held that -the j affidavits provided by-the Staff-and' Applicant " confirm l our-judgment, expressed in our March.6 order, that no credible accident involving.unirradiated new fuel rods i could cause radiation releases in excess of the limits l set by the Commission'.s regulations." (Slip op. at 2). i

0 found that none of the accidents postulated by FOE presented 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 a airplane, tower, or other large object would not result in the dispersion of any material potentially injurious to the public health and safety.12/

While the Licensing Board recognized that it was unessential to its rulings, it requested affidavits from the Applicant and Staff addressing whether any postulated-non-criticality accident involving uranium oxide fuel pellets could cause a violation of the Commission's regu-lations concerning cnsite and offsite radiation releases.l_3_/

The affidavits provided by the Applicant and Staff irrefutably establish that there exists no potential, credible accident affecting the new fuel assemblies to be stored at Limerick which would pose any potential for radiation releases in violation of the Commission's regu-lations.14/ Accordingly, FOE has made no showing whatsoever 12/--Id. at 19.

13/ Id.

.M/ See note 11, supra.

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as to any possible irreparable harm, perhaps the most critical of the four criteria.15/

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-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.

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

-15/ See Environmental Radiation Protection Standards for 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.

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incredible risks postulated by FOE in its rejected con-tention.

FOE has not addressed the fourth factor and presumably relies upon its generalized assertions of health and safety hazards found wholly wanting by the Licensing Board.

Although given an opportunity to respond to the affidavits submitted by the Applicant and Staff,5 FOE did not do so.

As the Appeal Board stated in the Clinch River proceeding, such generalizations "are simply conclusory and thus insufficient to justify issuance of the stay." El 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.

Q Te Y Troy B. Conner, Jr.

Mark J. Wetterhahn Robert M. Rader Counsel ~for the Applicant March 28, 1984 16/ Limerick, su?ra, _" Memorandum and- Order on' FOE's Contentions" LMarch 16, 1984) (slip _op. at 19).

11/ ~ Clinch River, supra, ALAB-721,_17 NRC at 5'4. 4

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Ma'tter 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 March 28, 1984, in the captioned matter, have been served upon the following by deposit in the United States mail this 28th day of March, 1984:

• Christine N. Kohl, Esq.

• Dr. Richard F. Cole Atomic Chairman Atcmic Safety and Safety and Licensing Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

• Dr. Peter A. Morris Atomic

• Gary J. Edles 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 and Service Section Office of the Secretary

• Judge Lawrence Brenner,Esq. U.S. Nuclear Regulatory Atomic Safety and Licensing Commission.

Board Washington, D.C. 20555-U.S. Nuclear Regulatory-Commission Washington, D.C. 20555

• Hand Delivery l .

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• 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. Naclear 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 Pathryn 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 11011 Building lith & Bureau of Radiation Northampton Streets 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

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i-Jay M. Gutierrez, Esq.

U.S. Nuclear Regulatory Commission Region I 631 Park Avenue King of Prussia, PA 19406 Zori G. F'erkin Commonwealth of Pennsylvania -

Governor's Energy Council P.O. Box 8010 1625 N. Front Street llarrisburg, 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 '

West Chester, PA 19380

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