ML20093K965
| ML20093K965 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 10/17/1984 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#484-555 ALAB-785, OL, NUDOCS 8410180250 | |
| Download: ML20093K965 (13) | |
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UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMISSION ~ 00CKE g
. Before the Ccaumission usNg In the Matter of ) *g4
; DDT 17 pg 04 Philadelphia Electric C mpany ) Docket Nos. 50-3520L
) 50-353 06 ,. ,'lTj' er u ,
(Limerick Generating Station, -) > i y^ , Units 1 and 2)~ -)
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APPLICANr'S PETITION FOR REVIEW OF AIAB-785 Sumnary of the Decision Below Applicant Philadelphia Electric Cmpany (" Applicant") petitions the Cmmission to exercise 'its authority under 10 C.F.R. 52.786 to review - inportant issues of law anc. Ccanission policy arising frm AIAB-785, which has created an urrarranted. intrusion by the NBC into the fundamen-
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(tal responsibilities of three federal agencies in~oonducting their sepa-
.~ rate reviews and _ issuing separate pemits :and approvals regarding the Limerick Generating Station (" Limerick") .
11hese questions arise in the context of ALAB-785,1/ which reviewed
'and,l with. two: exceptions discussed below, affimed - a partial initial deciiion ("PID") of the Atmic Safety and Licensing Board.2/
r i~ 1/ ~ : Philadelphia Electric Capany (Limerick Generating Station, Units 1 -
' and 2) , AIAB-785, 20 NBC (Septerter 26, 1984).
2/- The PID W i M favorably to Applicant two contentions related to enviromental inpacts associated with the supplementary cooling i water , system for Limerick. Limerick, supra, LBP-83-11, 17 NRC 413 (1983). Following a hearing, the Licensing Board ruled that
. withdrawal _ of water from the Delaware River at Point Pleasant, Pennsylvania to be used as cooling water for Limerick would have no adverse envirorsnental impact. The issues for which Cmmission i review is sought also relate to the supplementary cooling water
[ system. l
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. Althcugh it agreed with the Li nsing Board's factual findings and.
sustained most of its legal conclusions, the Appeal Board held that the l a Licensing Board erred in rejecting two contentions proposed by inter-venor Del-Aware .-Unlimited, Inc. (" Del-Aware") : (1) the inpact of , l
-withdrawals of water at Point Pleasant for Limerick on the salinity of the Delaware River,3/ and (2) the inpact of the Point Pleasant pumping station on the Point Pleasant Historic District.
h e Appeal Board, rather than exercising its authority to determine whether these two points constituted only harmless error because they would not affect the NEPA cost / benefit balance, renanded the proceeding to the Licensing Board for the purpose of determining whether more hearings should be held. Legal Error Assigned The A@eal Board cmmitted serious legal error on two points by creating a conflict between the NRC and sister federal agencies in the performance of their respective statutory - duties. ne first point , pertains to responsibilities assigned by statute to the Delawaro River
- Basin Cmmission ("DRBC") and the United States Army Corps of Engineers
(" Corps of Engineers"), which have been directly involved with the water diversion project at Point Pleasant in their separate reviews of the 3_/ AIAB-785 at 26-33. 4/ Id.'at 42-45. .The Appeal Board afforded Del-Aware an opportunity to refornulate its contentions in light of the specific information
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included in -the Limerick FES. ALAB-785 at 32, 45. In an Order dated October 10, 1984, the Appeal Board denied Del-Aware's motion for reconsideration .of AIAB-785, which sought to expand the salinity issue and permit litigation of the alternatives issue.
p.j i p . project.$!' The second point involves duties assigned by statute to the 3 the_ Advisory Council on-Historic Preservation.
.z n:A-third-point relates'to the Appeal Board's determination that the
- pr*ing nust be remanded;to provide - the intervenor with the oppor- ,
,tunity .to seek another hearing. Assuming arguendo that the Licensing J Board:in fact erred in its rulings on the two contentions noted above, the Appeal Board should -have determined whether -litigation on these
'. -points could have'af'ected f the ultimate NEPA cost / benefit analysis. .It seems clear .frm the Appeal Board's own references to the reviews made by DRBC, the Corps of Engineers, the - Advisory Council on Historic
. Preservation ?and . the regulatory Staff itself . that these inpacts, even coonstrued most favorably to.the intervenors, would be de,minimis.
- 1. Salinity Inpacts. - Essentially, the Appeal Board failed '.to appreciate the preenptive effect of Section 15.1(s)1 of the DRBC Ccupact when,; as here, the federal' representative to DRBC voted to approve its s
action, i.e., approve the PoJ1t Pleasant project. 'Ihe Licensing Board
= correctly; held that -matters which are inextricably related to "the
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operative allocation decision" by DRBC cannot be ' reviewed by the NRC because of the preenptive effect of the federal representative's concur-rence.6 ~/ Thus, the Appeal board failed to follow the Licensing Board's valid distinction between the NBC's custmary NEPA review of "all e a K ~ 5/. 'Ihe DRBC issued Docket No. D-79-52 CP on February 18, 1981, granting -its -final approval to the Point Pleasant project, which authorized the withdrawal of approximately 46 million gallons per
~ day for Limerick. - On October 25, 1982, the Corps of Engineers issued a " dredge and fill". permit under Section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. S403, and Section 404 of the' Clean Water Act, 33 U.S.C. S1344.
L 6/. Limerick, supra, IEP-82-43A,15 NRC 1423,1484-85 (1982) . c
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~environmentaliquestions arising frm the diversion" and the Cmpact's preclusion of review by other federal agencies of those specific inpacts ,
i s - which would necessarily involve the agency's '" reevaluating the DRBC l idecision to allocate water 1 to the- Limerick facility operating in the , 1 friver follower method."7/ Since'"any salinity increase would oe attrib-Lutable to the total water' withdrawal, not just withdrawal for Limerick," salinity inpacts .are necessarily " caused by the DRBC allocation deci-
; sion," which the NRC Lis preenpted frm reviewing by virtue of - the federal representative's favorable vote.
, Acting under an intergovermental Ccmpact approved by Congress,
- DRBC is responsible for allocating Delaware' River Basin water resources, and, follbwing a review of' the project which began in 1966, granted jfinal; approval.for the project:in 1981.8/ The Appeal Board agreed that
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Section 15.1(s)1- of the Ccmpact precludes the NBC from reevaluating t 7/ Id. at 1469.
- 8_/ 'See ALAB-785 at 4-7. As noted by the Appeal Board, DRBC issued an
. enviromental statement - on the project in 1973 and subsequently performed .another- ' environmental' review, resulting in' an enviromental assessment - with a negative declaration .in August 1960. In- granting approval to the Point Pleasant diversion
[. . project, DRBC_ carefully considered, as the' Appeal Board inplicitly acknowledged, the potential inpact that the withdrawal:would have [ L upon the downstream salinity gradient, but found that it would be , .. ~ negligible. See Applicant's Brief in Opposition to Exceptions by p Del-Aware at M.43 (October 3,1983) . The fact- that DRBC fully integrated' its consideration of water quality issues with its allocation of ' water for Limerick is confirmed by reference to its approval of the allocation in DRBC h Docket No. D-69-210 CP (March 29, 1973) at page 6, where DFBC
-established the; basic requirment that withdrawals at Point i- Pleasant may not reduce the flow as measured at the Trenton gage below 3,000 cfs, absent release of an equivalent ccmpensating flow
.frcan an upstrean reservoir. DRBC inposed the same condition in p granting final approval to the project in Docket No. D-79-52 CP at
- j. pages 5-6 (February. 18, 1981).
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DRBC's decision.to allocate water for Limerick,9/ or frm enlarging the allocation,10/ and that "the salinity of the water is a function of the
. total amount withdrawn." E - Thus, the Licensing Board held that DRBC's analysis of salinity inpacts was integral to its allocation of Delaware ,
River ' water for Limerick, and that reevaluation by another federal agency and reduction of the volume of water permitted to be withdrawn would i?miasibly interfere with DRBC's allocation function and
~ violate Section 15.l(s)1 of - the Cmpact because the DRBC federal representative voted in favor of the allocation decision.
h Appeal Board, however, conceived that the NRC could, in effect, reduce the allocation if it detemimet "that the amount of water that nust be withdrawn frcm the Delaware River to pemit safe operation of Limerick would nonetheless adversely affect the quality of the water to an unwarranted degree."12/ h A]; peal Board held that, because the DRBC allocation for Limerick was " permissive, not mandatory,"El the 9/ AIAB-785 at 28.
.10/ Id. at 29.
11/ Id. 12/ Id. hre is no basis in the record for the apparent conclusion by the Appeal Board that g water wi^:hdrawn at Point Pleasant is required for the " safe operation" of Limerick. Water withdrawn frcIn the Delaware River will supplement makeup water for Limerick's natural draft cooling towers withdrawn frcn the Schuylkill River and Perkicnen Creek, and will therefore only serve to optimize Staticn operations. See Limerick SER 52.4.11.1. h emergency cooling water supply, i.e., the. ultimato heat sink for Limerick, consists of a nearby spray pond. SER S2.4.11.2. p/ AIAB-785 at 30. The Appeal Board erred in stating at that point that Applicant is not required to make any withdrawals. Under the terms of the allocation, Applicant must withdraw ard punp Delaware water into the East Branch Perkicmen Creek sufficient to maintain a (Footnote Continued)
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a, - Canaission could take action which would not substantially conflict with ithe DRBC allocation and thus violate Section 15.l(s)1 of its Capact.E , c . .
- The; Appeal Board : failed : to; appreciate, however, the Licensing Board's understanding that the plenary authority of the DRBC to make allocations ,
= mst .be construed in . pari materia with the preenptive effect of the
. federalErepresentative's concurrence in the allocation, which cmmits the allocation ' and; integrally - related matters (i.e. , salinity inpacts) to the discretion'of DRBC.E As the federal district court stated in ireviewing DRBC's actions: ,
The . record shows ' constant and- thorough ~ study and consideration -of the' salinity problems of' the 4
= Delaware River. .Although' experts, as well as laymen, may disagree -as ' to a1" safe" rate of flow, DRBC:is the agency charged with this decision, and it, not this ocurt,(has the necessary expertise to make ' that' detamkation. 'It' is clear frcm the record that J DRBC was well- aware of the ' problem, carefully considered it, and - had, through various (Footnote' Continued) , _
flow of 27 cfsi during natural ~ low flow periods and to maintain a flow of 10 cfs at other times. See Docket No. D-79-52 CP at page 6 (February : 18, ; 1991) . The DRBC stated that these enhanced flows - were "for the protection of aquatic life in Perkimen Creek and its East . Branch. " M. at.5. This requirement further demonstrates that?DRBC's allocation of water is integral to its assessment of environmental inpacts as related to flow levels. 14/ 'Id. at 30-31. M/ : Even if salinity levels in the downstream reaches of the Delaware < were a problen, the situation could not be equitably or practically 1 addressed ' by focusing on withdrawals for Limerick. Applicant is
. only one of many users along the Delaware with a DRBC allocation.
It is - the DRBC, . not any 'other agency, which has the experience, _ expertise and responsibility in allocating these water resources
~and in; determining' whether empeting uses best serve the public
. interest, _taking associated envirc int.al .inpacts into account.
Accordingly, whether withdrawals frca the Delaware adversely affect i salinity levels nust be evaluated by DRBC on the basis of all users,; not just Applicant. ' Only DRBC can perform this overview - function.' In any . event, the concurrence of the federal representative under Section 15.l(s)1 of the Ccm1 pact preenpts NRC l- - evaluation. L (t _ . , - - . _ _ . . _ _ . . . . . _ . _ . - _ . . _ ~ . . - _ . - _ , . . . _ . , _ , . _ _ _ . _ _ _ . _ _ . _
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. studies and <h,=nants, been provided with voluminous 1" . information and' data, and was fully informed.16f
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% DRBC determined- that Applicant's use of its full allocation will 7 -
'not result in adverse salinity itpacts. The Appeal Board's logic, that i
a' reduction 'of .waterJwithdrawal- by - the NRC would not conflict with DRBC's 1 decision - because PBZ) is not required - to withdraw its full
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allocation,' 'is incongruous. All water allocations are only entitle . . 1ments. lTo say- that ~ there is no conflict if the entitlenent is condi-J Jtioned'or reduced by another federal agency is to render the allocation
- lllusory. Reductio ad_ absurdum, since an NBC' license to operate a power
= reactor .is also ' " permissive, ' not mandatory," the Appeal . Board's logic would -permit the DRBC to reduce the power level of a tacility licensed by the NRC. .
2.= Historic District Inpacts. Similarly, the Appeal Board seri-ously erred in ignoring consultation between the Corps of Engineers and 1 ~~ Advisory Council on Historic Preservation and the adoption of a Menoran '
.dum of Agreement defining all measures necessary to eliminate or miti-gate possibly' adverse inpacts .to, the Point Pleasant Historic District.
- Although-it acknowledged that the Corps of Engineers has canplied with Section 106 of the National Historic Preservation Act, the Appeal Board inexplicably held that the NBC nust nonetheless provide the opportunity td ' litigate; the same issues in a hearing. No legal basis exists for requiring this redundancy. Moreover, allowance of this litigation could
~-'16/ ' Delaware Water Emergency Group v. Hansler, 536 F. Supp. 26, 42 n.25 (E.D. Pa.1981) ,. aff'd men. , 681 F.2d 805 (3d Cir.1982) .
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_g-L e-interfere or1 conflict with the terms of the Agreement already approved by the Advisory Council. As the Limerick FES states: With regard to the Point Pleasant punping station, a P memorandtzn of-agrement was signed by the U.S. Army Corps of Engineers, the Pennsylvania State Historic Preservation Officer, and the Advisory Council on *
-Historic Preservation. 'Ihis agreement concerns the permit application by the Neshaminy Water Resources Authority for the station and stipulates the con-
;ditions the Corps was required to have included in its permit so that adverse construction and opera-tion inpacts or the station on the properties listed or. eligible for listing in the National Register may be avoided, minimized, or mitigated.E/
'Ihe federal courts have reviewed the actions of the Corps of Engineers in discharging cits statutory responsibilities under the National Historic Preservation Act, and have determined that the Memo-randum of Agreement satisties all such obligations.18/ The Appeal Board gave no reason as to why the conditions adopted under the existing Memorandum of Agrement, approved by the Advisory Council on Historic Preservation, would not be binding on the NBC if it chose to evaluate inpacts on the Historic District i@rxicntly.E! Although it referred to the federal district court decision on this point, the Appeal Board 1_7/ Limerick FES at $5.7.
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18/ Del-Aware Unlimited, Inc. v. Baldwin, No. 82-5115, Tr. 1454 (E.D. Pa. D aser 15, 1982) , aff'd, 720 F.2d 661 (3d Cir. 1983) , cert. denied, 104 S. Ct. 1274 (1984). Thus, the court expressly determined that "the language of the regulation is that the entering into a memorandum of agecut satisfies the obligations of the Advisory Council," and that, therefore, "[t]he Advisory Council has satisfied the requirements of the regulations." Id. at Tr. 1449-50. H/ The Appeal Board agreed that the NRC Staff could properly rely upon the reviews of other agencies, but did not explain how the NBC could inpose different conditions regarding such impacts than those already in place under the Agreement. AIAB-785 at 45 n.110.
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? 3 apparently.did not accepc the Mmorarxitzn of Agrees. cut.as dispositive of
'alllof'the' considerations raised by the.various participants before the
- Advisory Council. The Appeal Board's decision would permit the inposi-
- _ . tion of new and different conditions by the NBC for the . Historic = Dis-
. trict, which would usurp the : function of the Advisory Council. Yet, ithat is the result apparently authorized by AIAB-785.
!2. - - No' Need for Hearings. Even ~1f the salinity and Historic ,
1 District contentions should have been admitted when prope in 1981,
; 1their' denial constitutes harmless error at this point in the proceeding, consid$ ring the state of the record retlected in the Idmerick FES, including the findings of other agencies. As the Appeal Board acknowl-edged,rthe . Staff has adequately treated each of these subjects in the s
EES.1'Ihe Ccunission has repeatedly recognized that earlier canissions in
;the NEPA: review may be cou ected in the hearing process. 20/ Given the discrete and limited concerns involved, it is virtually inpossible that
- either inpact would affect.the cost / benefit analysis for Limerick.b
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-Moreover, as the Appeal Board acknowledged, these issues had been heard i
before ' other agencies. . Del-Aware, in particular, unsuccessfully chal- . lenged the. actions of these agencies on salinity and Historic District I g/f lE. .,' Arizona Public Service Casany (Palo Verde Nuclear Generating Station, Units 2 and 3) , IaP-83-36,18 NBC 45, 47 (1983) .
.M/NEPA does not require hearings. Richland Park Mcznsowners Association, Inc. v. Pierce,- 671 F.2d 935, 943 (5th Cir. 1982). ^~
Further, NEPA requires an agency to consider only the significant aspects 1 ot probable ~ envirorsnental - impacts. E.g., Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F. Supp. 916, 933 (N.D. Miss.1972) , aff'd, 492 F.2d 1123 (5th Cir.1974) . Thus, the NBC'is not' statutorily required to offer a hearing on salinity and Historic District inpacts in deciding to issue an operating license for Limerick.-
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n s &: _ inpacts .in ! federal court.2_2/ Thus, ithe NRC -is not -required to accord Del-Aware fyet another hearing.- Even due process does not require nultiple hearings on the same issues.
- Exercising Discretion-to Review.
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'Ihe Ccunnission: should exercise its = discretion to review these inportant issues of Conunission policy and federal law to avoid unneces-sary conflicts 'and duplication in the envirorsnental review by the NRC ahd other federal' agencies for Limerick.EI .In reviewing and reversing AIAB-785 in' this respect, the Cannission ~ would make clear its policy that . its Staff -'and adjudicatory boards should not negate or sinply
- duplicate. the actions of coordinate tederal agencies acting under Jeg arate statutcry mandates.
Respectfully subnitted, CONNER & WEITERHAHN, P.C.
. (M. g Troy .C , Jr.
Robert M. Rader Counsel for the Applicant October 17,-1984 E / See Del-Aware Unlimited, Inc. v. Baldwin, supra.
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23/ '1he DRBC's historic concern over the~ preservation of its water managenent jurisdiction is demonstrated by its participation in In
-re Application of Philadelphia ~ Electric Ccmpany, Docket No.
A40103956 before the. Pennsylvania Public Utility Cannission, filed
' February l', 1984. In 'its amicus curiae brief, the DRBC asserted that the inposition of various conditions by the Pennsylvania PUC on - the Point Pleasant withdrawal of Delaware River water for Limerick interfered with ~'its managenent and allocation of water
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resources. - A copy of DRBC Resolution No. 84-1, which authorized the' filing of a brief on behalf of the DRBC, is attached.
FI.y I i ! UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter o'f. ) '
)
-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 Petition for Review of ALAB-785" dated October 17, 1984 in the captioned ; matter have been served upon' the following by deposit in the United States mail this 17th day of October, 1984: i* . Samuel J. ' Chilk, Secretary Lando W. Zech, Jr., Office of the Secretary Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 . Washington, D.C. 20555 Nunzio J. Palladino, Christine N. Kohl, Chairman Chairman Atomic Safety and Licensing
-_U.S. Nuclear Regulatory Appeal Board
. Commission- U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Thomas M. Roberts, Commissioner Dr. Reginald L. Gotchy U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission L James K. Asselstine, Washington, D.C. 20555 Commissioner U.S. Nuclear Regulatory Gary J. Edles Ccamission Atomic Safety and Licensing Washington, D.C. 20555 . Appeal Board U.S. Nuclear Regulatory Frederick M. Bernthal, Commission
. Commissioner Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
- Hand Delivery I
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_ - _. . . . - -_-y _. . . _ _ _ _ lE y - 2- / e
- i :-
IHel'en F. Hoyt, Esq.-
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Atomic Safety and Licensing RR
- Chairperson. .
Appeal Panel EAtomic Safety and U.S. Nuclear'Regulat'ory Licenqing. Board U.S. Commission ~
,Nuclama yegulatory. Washington, D.C. 20555 Commission Washington, D.C. ,20555 Docketing an1 Service Section- ,
~ office of the Secretary' Dr.LRichard F.' Cole -
U.S. Nuclear Regulatory Atomic Safety and Commission
' Licensing Board Washington, D.C. 20555
-U.S'. Nuclear Regulatory.
Commission' Ann P.'Hodgdon, Esq. cWashington, D.C. ~20555 Counsel for NRC Staff Office of the Executive Dr ' Jerry Harbour. Legal Director Atomic Safety.and U.S. Nuclear Regulatory Licensing Board Commission Washington, D.C. U.S. Nuclear. Regulatory. 20555 Commission Washington, D.C. 20555 Angus Love, Esq. Atomic Safety 1and Licensing 107 East Main Street Board Panel_ Norristown, PA ~ 19401 U.S. Nuclear Regulatory iCommission. Robert-J. Sugarman,-Esq. Washington, D.C.. 20555 ~Sugarman, Denworth & Hellegers
, Philadelphia Electric Company 16th Floor, Center Plaza
-ATTN: ~ Edward;G. Bauer, Jr. 101-North Broad' Street
.Vice President'&- Philadelphia,-PA 19107 General Counsel
.2301 MarketLStreet Director, Pennsylvania Philadelphia,JPA -19101 Emergency Management Agency
. Basement, Transportation Mr. Frank R. Romano and' Safety Building 61 Forest = Avenue Harrisburg, PA 17120
' Ambler,.--Pennsylvania '19002 Martha W. Bush, Esq.
Mr. Robert L. Anthony Kathryn S. Lewis, Esq.
-Friends of.the Earth of City 'of Philadelphia
, the Delaware Valley Municipal Services Bldg.
106~Vernon Lane, Box 186 15th and'JFK Blvd. lMoylan, Pennsylvania 19065 . Philadelphia, PA 19107 t
wm. ' ' [1l
, .. 's Charles'W. Elliott,!Esq. Spence W.: Perry,-Esq.
Brose and Postwistilo Associate General Counsel 1101 Building 1 Federal Emergency Management. Agency
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11th &'Northampton Streets
;Easton, PA L18042-
- 500 C Street, S.W.,:Rm. 840
. . . Washington, DC 20472
;Phyllis'Zitzer,!Esq..
LLimerick Ecology Action Thomas Gerusky, Director ' P.O.: Box 761- Bureau of Radiation 762 Queen Street Protection Pottstown,'PA- 19464 Department of Environmental Resources
' Zori G.-Ferkin, Esq.
Sth Floor, Fulton Bank Bldg. rAssistant Counsel Third and Locust Streets
.Conaonwealth of . Pennsylvania Harrisburg, PA 17120 z, ,
Governor's Energy Council
-1625-N.< Front Street James Wiggins Harrisburg, PA 17102 . Senior Resident Inspector
. U.S. Nuclear Regulatory
' Jay M. Gutierrez,'Esq. U.S. Commission Nuclear Regulatory P. O. Box 47
.Comuission Sanatoga, PA 19464
. 631 Park Avenue
. King of Prussia, PA -19406 Timothy R.S. Campbell Director
- Department of Emergency
. Services-14 East'Biddle Street West Chester, PA 19380 1 [ ) ,
d Robert M. Rader i}}