ML20093H695

Petition for Review of ALAB-785.Commission Should Review ALAB-785 Because of Importance of Historic Landmarks,Need for Compliance W/Nepa & Need to Avoid Elevation of Technicality to Importance.Certificate of Svc Encl

ML20093H695
Person / Time
Site:	Limerick
Issue date:	10/10/1984
From:	Sugarman R DEL-AWARE UNLIMITED, INC., SUGARMAN & ASSOCIATES
To:	NRC COMMISSION (OCM)
References
CON-#484-476 ALAB-785, OL, NUDOCS 8410160352
Download: ML20093H695 (14)

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NUCLEAR REGULATORY COMMISSION

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WASHINGTON, D.C.

34 CCI15 P12:06 BEFORE THE COMMISSIONERS:

Nunzio J..Palladino, Chairman

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Thomas.M. Roberts

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James K. Asselstine Frederick M..Bernthal Lando W.

Zech, Jr.

In'the Matter of

. Docket Nos. 50-352 c) C.

50-353 o y

. APPLICATION OF PHILADELPHIA ELECTRIC COMPANY Re:

ALAB 785 PETITION FOR REVIEW Pursuant to 10 C.F.R.

$1.786, Intervenor Del-AWARE Unlimited, Inc., petitions for review of the decision of the Appeal Board in ALAB ' 785 issued September 26, 1984, and avers that the decision is erroneous with regard to the following important questions of fact, law or policy:

1.

The Appeal. Board failed and refused to consider or deal with the fact (Exceptions 17; Motions of May 25, 1984 and August 6,.1984) that the Pennsylvania Public Utility Commission Initial Decision and the Environmental Hearing Board decision (now final in this aspect), found and deter-mined that the diversion, as planned, would cause unaccept-

-ably substantial erosion in the East Branch Perkiomen Creek, the intended conveyance channel to Limerick; and failed and refused to consider the fact that the limitations on use imposed by the 'PUC initial decision would render the 8410160352 841010 PDR ADOCK 05000352 G

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j diversion inadequate for Limerick, while those required by EHD would not, as found by the PUC, protect the East Branch.

At the same time, the Appeal Board failed and refused to consider the fact the Applicant had consciously elected to abandon channelization of the East Branch in 1972, despite its knowledge that the use of the East Branch diversion channel without channelization would cause as a substantial ero,sion, because applh. cant felt that the NRC staff, ' at the

time, would be more concerned about channelization than about erosion, but did not inform the NRC of.its conscious decision to incur this damage.

This internal memorandum of this decision was found only in 1984, and was provided t;o the Appeal Board by Motion of August 6, 1984, aid is attached hereto as Exhibit A.

The Commission should review this action because it permits a serious environmental impact of a critical element of a

facility, which was knowingly incurred by applicant, but not divulged to the Commission, and has not been ecnsidered as required by 10 C.F.R. ch.51.

2.

Although the Appeal Board remanded to the Licensing Board because it correctly found that the Licensing Board had erroneously excluded contentions relating to downstream salinity effects in the Delaware River, it failed, or may have failed, to include in such remand potential downstream effects of the diversion on dissolved oxygen levels.

(See Exceptions $17.),

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j The. Commission should review because it is a

serious environmental impact and Commission staff promised

' to review it in inducing the EPA to allow DRBC to approve the diversion.

3.

The Appeal Board failed and refused to properly identify the ' legal.. effects of. impacts of the diversion American Shad and Shortnose Sturgeon; (See 'PID 3/8/84; ALAB 785); it failed and refused to recognize that a significant environmental effect could occur from a substantial dimin-ishment of the population, even though the species may not be threatened, and thereby affirmed a similar misapprehen-sion of the law by the Licensing Board; it failed to deal with the fact-that the population will be reduced by tens of J

thousands of fish because the Point Pleasant intake is located in a spawning and nursery area for American Shad.

Likewise, the Appeal Board failed and refused to reverse the Licensing Board's erroneous decision which in

- turn sustained the refusal.of the staff.and National Marine Fisheries Service to recognize the potential effect on what may be important habitat shortnose sturgeon, an endangered f

species, ' but found it appropriate to proceed despite the

' absence of any sampling for shortnose-sturgeon in the Spring of the year, the only time when they could be expected to be present, despite the fact that they have been taken as close as 8 miles from the intake site.

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l This' Commission should review the matter because it is a serious environmental effect of the project, and a basic legal issue for this Commission.

4.

The Appeal Board erred as a matter of law in determining that the Commission need not follow its regula-tions, requiring that the hearings not be held until the draft environmental statement was issued, and in allowing the staff to present staff views despite the fact that the draft environmental impact statement had not yet been issued.

The issue was initially raised by Motion of September 24, 1982, by Exceptions 91 and 2).

The Commission should review this issue to perceive the i,ntegrity of its procedures to insure compliance with NEPA.

5.

The Appeal Board erred in not disqualifying staff witnesses-who had exhibited a

predetermination and commitment prior to commencing their investigation of the subject matter.

Motion of September 24, 1982, Exceptions

$24),

Reason for Review:

See SS.

6.

The Appeal Board erred in failing and refusing to hold that NEPA and the Atomic Safety Act require that the applicant identify and consider, and that the FES identify and

consider, all reasonable alternatives to the supplemental cooling water system, as a result of likely changing Limerick from two units to one, and that neither had done so, and therefore failed to require considerating of alternatives likely in

fact, to be implemented.

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(Contention V16C, and V-24; Board Order of January, 1983; Exceptions $19.)

The Commission should review this question because the subject of alternatives is the linchpin of compliance with NEPA, at least wnere, as here, the potential reduction

-of Limerick from two units to one unit makes possible a ran,ge of alternatives previously not considered.

(See 10 C.F.R. $51.71.)

7.

The Appeal Board erroneously sustained the Licensing Board's refusal to allow intervenor to litigate the ef.fect on the Delaware

Canal, a

National Historic Landmark, on the ground that Contention reference to the

" Historic District" did not encompass the Landmark within it.

(Contention V-16, Exceptions Sil. )

.The Commission should review this matter because of the importance of Historic Landmarks, and the need for Commission compliance with NEPA; and the need to avoid elevation of technicality to importance.

t Respe tfully submitted,

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ROBERT J.

SUGARFdLN

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Counsel for Intervenor Del-AWARE Unlimited, Inc.

Of Counsel SUGARMAN, DENWORTH & HELLEGERS 16th Floor, Center Plaza 101 N. Broad Street Philadelphia, PA 19107 (215) 751-9733 Dated:' October 10, 1984 010 5

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evi)3 ENVIRONM' ENTAL IMPACT STATEMENT OF PHILADELPHIA ELECT 1 l

ON THE LIMERICK NUCLEAR POWER PLANT i

MEETING OF DECEMBER 17., 1972 Scoce:-

'This meeting was in connection with usage of the stream channel of the Eact Dranch Perljomen Creek to convey water

' pumped from the Delaware River to a point along the main stem of Perkiomen Creckf where it will be picked up and transmitted to the Limerick Plant.

Attendanec:

Philadelphia Electric Company:

. Mr. Dave Marano Mr. Lou Pyrih Mr. Mainco Dickinson Mr. Edward Purdy Ichthyological Acsociates:

Edward C. Raney, Director Paul L. Harmon, Project Leader Mr. Robert Molzahn E. II. Bo'urquard Associates, Inc.

E. 'H. Bourquard l

Terry L. Fought l

l The meeting started with a discuscion by E. H. Bourquard of the I

proposed channel improvement of the East Branch. This would consist of n i

20-foot bottom width low flow channel starting where water la puraped into the Eact Branch from the Delaware River an extending 2500 feet downstream

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thereof (Later considerations were that this channel should extend at least to I

the Route 313 bridge, a total distance of,about 8000 feet). The proposed channel would carry the 65 cis maximum pumpage rate at a depth of 1.2 feet and the minimum pumpage rato provided in tho'DhDC water allocation e at a depth of 0. 6 foot. We are roanonably certain that.this proposed channel, with grassed banks, would conform to the requirements of the Impact Statemont that thero be no crosion; however, somo!,maintenanco would be recuired au a i

log or other flood debris could lodge in the channel and upset the regimen of N

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the atream. In explanation of the fact that the atream channel should be able I

to withstand croolon, E. H. Dourquard described a vicit to the otroam channel I

on November 10, 1972, when ho and T. L. Fought inspected the upper reachco of the stream channel to noto crocion frorln a nood which occurred on No ll 8th. This nood was roughly cetimated to be approximately 400 cfo at Elephant Road nridge r.nd travelled down the stream channel'at a depth of about 5 to 6 feet (4 to 5 feet above stream now at timb of viIit). The only oigns of crosion I

that were noted were along the outoide bank of sharp bends whero the water cut i

into the bank until it became an alrnoot vertical face and continued to crode the-unprotected surface, evidently for the du ation of the flood now. The other i

portions of the stream seemed to suffer only very minor crocion due to this flood. The existing vegetation and the soil forming the otream banks, which is I

plastic, appear to offer relatively high reoistance to erosion. Also, tho exiet-ing stream channel did not have much capacity for flood flows and when suelE t

Hows occur the depth increauca cousiderably and overbank Gooding occuro.

Pictures taken on November 10th, which showed the condition of the stream channel and the height of the November 8th nood, were passed around the group.

i Dave Marano stated that Dr. Rancy had felt that no stream channel work of anL type would be the best solution for the Ea'ot Branch ecological problem and questioned why a channel should be installed. The exioting stream channel can i

handle the peak pumping rate (65 cis) at a depth of about 2 feet and, in general, I

should be within the banks of the stream which are approximately 3 to 6 feet I

high. Prints were passed around the group which showed computed now lines I

l for.various dischargou and the location of occtionc utilized in the now line com-putation s.

Probably the only reaoon for the improved channel would be to firmly I

catablish P. E. 's liability with_regar_d_to'passago of the peak pumping rate; without auch a channel, it is possibic that P.E. might be blamcd for any damage I

that was incurred as a result of a nood on the stream. It was pointed out that, at present, State laws pertaining to work!on stream channela are primarily directs l'

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at prevention of floods and do not neceso.$rily take into account ecological I

e matters.. Also, the property ownere 'along the stream channel are more likely

' to be concerned about nooding than the biota of the stream channel. A cco rdingly, P. E. might be considered liable for any differenco in water lovel between the normal no'w of the stream and the now line of the 65 cis peak pumping rato.

Another item is the matter of stream croosings by property owners, auch as i

farmers, who own land on both siden of the stre'am and are able, throughout I

most of the year, to ford the stream. With the passage of a 65 cfs flow, such fording would not be possiblo. P. E. wil have to install come type of. crossing I

I where this situation exists.

E. H. Bourquard stated that a general inspection

- of aerial photographs and property lines along the stream channel did not indicat:

f very many places where a property owner worked acros's the stream channel;

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however, this must be checked in more detail later.

I At this point, Dr. Raney reiterated his position that no channel work

,should be performed, on}he East Branch,.f He pointed out that etream channels are formed during times of nood and that during the rising stage of the nood I

most of the erosion takes place, whereas, on the following stage, the water be-I comen relatively cicar except for colloiddl materials. He felt that the existing I

channel, which had been formed by past ood nows, should not be materially affected by the peak pumping rate which is much less than the usual nood.

In addition, channel work, would destroy the ecology of that part of the stream and I

the resulting crosion from this work could be expected to deposit silt in the, I

stream as far down as Sellersville. He lwas asked what measures might be takc-to improve the ecology of the stream after channel improvement work had been installed..He stated that his observation of improved channels where definite

. attempts had been made to restore the c'cology by omall dams, groino, etc.

had, even after a period of 15 years in come cases, not been very successful.

He cited the Highway Depart:nent and other N. Y. State agencies' attempts to -

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rcotore the ccology of improved channels as an example of what should not be l

Lou Pyrih pointed out that 1 caving the channel an is would probably expos-l done.

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. it to crosion with the increaned now over a long duration, ac compared with y

.I the existing eituation where high nown occur for short duratious and very low I

nows are prescnt z.t all other times.

E. H. Bourquard was of the opinion, based upon observatic as of the West Branch l of Codorun Creek, in York Count,f, I

that the 65 cfn now would crode a relatively, stable channel into the exicting I

stream bed below the p.oint of discharge but;that such erosion would be limited I

in amount and occur over a period of years - The now of the West Branch of I

Codorus Creek is effectively controlled by a largo dam o:. the main stream and I

by a diverulon weir-pumping installation on;the stream draining the rema'ining i

upstream watershed. B,etween thece installations and Spring Grove, where the 1

controlled now is picked up, there is about seven miles of channel which, for the I

past 4-5 years has carried a relatively high!and constant flow several times i

greater than the previous median flow of tho, stream. Inspection of this chaunc1 h

indicated that crosion of the existing East Branch channel wpuld not create a ouf-ficient volume of sediment to ho damaging to the downstream channel. Also, it was pointed out that observations of the East Branch watershed and the tributary i

streams suggested that the miior source ofinediment carried by the East Branch is the tributary streams nnd sheet crooiou of the watershed. This was_somewhat confirmed by the results of total solids test made on watcr campics taken during the June 23, 1972 nood on the East Branch. Going in a downstream direction from Elephant Road, where the total solids hontent, in milligrams per liter, was I

208, to State Route 313 with a total solida c7ntent of 456, to Route 309 with con _

tent of 1196, to State Route 63 with a coctent of 1406, and finally at State Routo 73 with a, total solids content of 1568. Dr. Ranoy stated that any adverse offect of cediment resulting from erosion of the existing channel by the increased flow I

would be far Ican damaging to the ecological ayatem of the stream than could be L

cxpected if an improved channel was insta11hd. The group generally agreed that tho. ocological requirements of the stream channel outweigh the hydraulic, or C#

(* flood factors, particularly with regard to ob'taining approval of an application to I

construct the Limerick Plant. However, another consideration was the possible 1

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k objectiono of the p' operty owners to introduction of the increased flow without r

I installing compensating utream improvement work. In Pennoylvania, the Com-I monwealth owns the stream bed and permission to diocharge thic flow into the Eaot Branch must be obtained from DER.

Conoideration was given to contacting _

Vaden Butler, Chief of Dams and Encroachments, concerning the proposed u age of this stream channel; however, it was concluded 'that such should be delayed l

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until after the Impact Statement io finalized. A draft copy of thin Statement has aircady been furnished the Commonwealt and it is expected that Vaden has or I

will review the portion pertaining to the Ea'at Branch.

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Following thin was a discussion of the effects of chlorination of the water

_ pumped from the Delaware River. John Carson's letter to DRBC concerning

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this matter states that "Present planc for! diversion of water into the Perkiomen i

Creek, as part of the Point Plcncant Pumping Station project, do not include i

i diuinfe ction. " The Environmental Impact Statement provided only that such dicinfection not be harmful to the ecology;of the stream.

Chlorination had been I

initially considered in the Point Picacant project as a meanc of inhibiting the i

growth of clime within the transmission mains. It la expected that Delaware 1-River water will contain many varied type's of micro-organisms and bacteria and como of these will probably be capable of attachment to the walls of the pipo line and continuing their growth. Also, the Health Department had indicated a need I

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for chlorination becauso part of the water would go into the North Branch I

Iteservoir where it is expected that swi ing will be permitted. Dave Marano i

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indicated that a solution might be to just chlorinate the water going into Ncahaminy Crcek by means of a chlorination station located near Bradshaw I

Reservoir..Also, numerous types of pipejwere discussed as a posoible means of reducing the ability of micro-organioms and bacteria to attach themoolves to the walls, but it was generally concluded that the typo of pipe would have little effect on the growth of these life forms. In vicw of the fact that chlorination I

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creates such scrious problems, it will probably be desirabic to manually clean any such growths off of the walls of the, pip [e_li,nc as part of the project maintenane:

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1 wo rk. Since John Carson's letter to DRDC stated that dioinfection was not i

included as part of the project, at thio'etime, P. E. can otato that water to

• I Perkiomen Crook will not be chlorinated.

The next item discuosed was th_e_d_ischargo_of the Del,awarc River watt into Perkiomen Creek and its effect on the ecology of the stream. One item was the rapid increase or decrease in depth agd velocity that would result I

from starting and stopping the pumps and Dr. Rancywas questioned as to I

whether or not some o*perational procedure should be act up to slow down the j'

variations in depth. Dr. Raney stated t at aquatic life affected by the variation in depth would not benefit by a more gradual rate of variation.

When asked I

about any harmful effect resulting from mis:tures of Delaware River and Ea,s,t Branch water, Dr. Rancy stated-that nothinn developed so far had indicated i

_any advers e effecto'. In fact, Delaware River water appears to be a slightiv i

bett,cr quality of water than that of the East Branch. The proposed impact I

energy dissipa. tor to be installed at the o,utict of the transmisolon main was discussed and it was pointed out that it Nould increaso the DO content of the I

water.

Dr. Rancy naked if the actual pumping of the water would not increase the DO and it was agreed that there woul'd be some increase solely as a result

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.of the pumping. The question then arocc!

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as to whether or not it would bc I.

advisable to further increase the DO content by means of spray _acration or l

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other such methods.

Dr. Rancy said "No".

The discusolon then turned to the t

I probable temperature of the water as it emerges from the impact basin. A

_ rough estimate by Lou Pyrih and Haines lDickinson indicatedihat whIn~ pumping h

.at the minimum rate (18 cia), the water would be at about ground temperature, i.

approximately 50*.

This would have theieffect of increasing stream water temperaturcs during the wintcr and decreasing stream water temperatures during the summer.

Dr. Raney thought hat this might convert the East Branci into a trout stream but that it also could have come harmful effects, particular', l 8

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if there were sudden changes of temperature (5' or more). Consideration was l

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given to installation of a small recorvoir.at the outict of the transmincion main I

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4 which could be used in the event of a poEcr failuro or pipe line break, to supply I

a liinited quantity of water to the stream for the duration o'l the outaCo.

Dr.

1 Rancy in to make a reco*mmendation as to what minimum flow should be pyod,dy and, from this, the size of this storage ibasin can be determined. Thio storage I

basin could also have a temperature cqualizing effect.

At this ' oint, Lou Pyrih brought up the fact that the pipe lines must be p

designed for a Seismic II condition. He further stated that such requirements have not ucukily necessitated a greater strength pipe.

t-We are to furnish P.E. with a ~ letter briefly summarizing our findings I

concerning the proposed East Branch channel improvement by December 22, 1972.

The necessity, or dcoirability,iof a stream gaging utation on the East i

Branch was discussed and it was concluded that such a s,tation, particularly if utilized to obtain watci quality data, would certainly be most helpful in futurc l

design work and in preparation of the additional environmental impact state-ments anticipated in connection with design of the Point Pleasant Pumping i

Facilitics. Dave Marano indicated that they would take this up with manage-r i

ment and attempt to secure approval of such a station,: but that until such time l

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ns the availability of Delawarc River water la confirmed (Tocks Island Reservoi:

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he did not expect an affirmative response.

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Dr. Rancy is to furnish us the minimum stream flow for ecological I

purposes after sudden shut-down of pumpinC; also, he is acading us some p

reports which include water quality and hther data developed during the course i

of their' study on the East Branch and the Schuylkill River.

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P. E. will furnish un the results of the Beltz Laboratory studies of wat quality of the Delaware River at Point Pl'eassant and of the Perkiomen Creek at i

Graterford, plus a draft of tho Environm' ental Impact Statement pertinent to the East Branch and Delaware River pumping.

E. H. Dourquard T. L. Fought r

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY LICENSING BOARD EO 34 Ogf y5 Pi2:07 In the matter of

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PHILADELPHIA ELECTRIC, COMPANY )

Docket Nos.,50n352 4.N?..$.[f ^,? iS > -

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(Limerick Generating Station, )

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Units 1 and 2)

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CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing Petition for Review by mailing a copy of the same to the,following persons this 10th day of October, 1984.

Judge Helen F. Hoyt, Chairman 4 Atomic Safety and Licensing

• Atomic Safety and Licensing Board Appeal Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission

Weshington, D.C. 20555 Washington, D.C.

20565 Judge Richard F. Cole \\

Docketing and Service Section Atomic Safety and Licensing Board Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C.

20555 Judge Jerry Harbour $

Ann Hodgdon, Esquire Atomic Safety and Licensing Board Office of Executive Legal Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission

-Washington, D.C.

20555 Washington, D.C.

20555 Atomic Safety and Licensing Board

• Troy B. Conner, Jr., Esq.

U.S. Nuclear Regulatory Commission Mark J. Wetterhahn, Esq.

Washington, D.C.

20555 Conner & Wetterhahn 1747 Pennsylvania Avenue, NW Washington, D.C.

20006 Philadelphia Electric Company Thomas Gerusky, Director Attn.:

Edward G. Bauer, Jr.

Bureau of Radiation Protection V.P. & General Counsel Dept. of Environmental Resources 2301 Market Street Philadelphia Fulton Bank Bldg, 5th Floor Third and Locust Streets

'Phyllis Zitzer, Esquire

!!arrisburg, PA 17120 Limerick Ecology Action P. O. Box 761 Thomas Y. Au, Esquire Pottstown, PA 19464 Commonwealth of PA Dept. of Environmental Resources

Read-delivery

a Dnvid Wersan, Esquire 505 Executive House A2sistant Consumer Advocate P. O.

Box 2357 Office of. Consumer Advocate Harrisburg, PA 17120 1425 Strawberry Square

- Hcrrisburg, PA 17120 Spence W.

Perry, Esquire Director, Pa. Emergency Mgt. Agency Associate General Counsel Basement, Transp. & Safety Bldg.

Federal Emergency Management Harrisburg, PA 17120 Room 840, 500 C St., N.W.

Washington, D.C.

20472 Martha W. Bush, Esquire D;puty City ~ Solicitor Robert Anthony City of Philadelphis 103 Vernon Lane, Box 186 Municipal-Services Building Moyland, PA 19065 15th & JFK Blvd.

Philadelphia, PA 19107 Marvin Lewis 6504 Bradford Terrace Jacqueline I. Ruttenberg Philadelphia, PA 19149 Keystone Alliance P. O.

Box 107 Frank Romano Souderton, PA 18964 61 Forest Avenue Ambler, PA 19002 Charles W. Elliott, Esquire Brose and Pswi'stilo Angus R. Love, Esquire 1101 Building Montgomery County Legal Aid lith and Northhampton Sts.

107 East Main Street Easton, PA 18042 Norristown, PA 19401 Timothy Campbell, Director Zori G. Ferkin, Esquire Department of Emergency Services Assistant Counsel 14 East Biddle Street Governor's Energy Council West Chester, PA 19380 P. O. Box 8010 1625 N. Front Street Harrisburg, PA 17102

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N ROBERT J.~SUGARMAN h

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