ML20093N265

Answer to Consumer Educ & Protective Assoc 840717 Safety Contentions.Contentions Lack Basis,Concern Ratemaking Matters Outside NRC Jurisdiction & Should Be Denied. Certificate of Svc Encl

ML20093N265
Person / Time
Site:	Limerick
Issue date:	07/27/1984
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
OL, NUDOCS 8408010255
Download: ML20093N265 (9)

Text

~

(b%

i 00( =:Ur ,

UNITED STATES OF AMERICA ,t

. NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Boar ' Ub 31 pp;gg In the Matter of ) -

)

Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 Ol (Limerick Generating Station, )

Units 1 and 2) )

APPLICANT'S ANSWER TO CEPA'S SAFETY CONTENTIONS

' Preliminary Statement On July 17, 1984, Applicant received a copy of a pleading filed by Consumers' Education and Protective Association ("CEPA") entitled "CEPA's Safety Contentions."1!

CEPA, which was previously dismissed by the Board, now seeks admission of a new late contention which attempts to create a nexus between low power testing at Unit 1 of the Limerick Generating Station and a Petition for Declaratory Order filed by Applicant before the Pennsylvania Public Utility Commission ("PUC') regarding ratemaking.

The request for admission of this late-filed contention is clearly without merit because no such nexus exists and 1/ The pleading and the accompanying certificate of service were undated.

-2/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-84-18, 19 NRC (April 20, 1984) (slip op. at 2).

8408010255 840727 PDR ADOCK 05000352 O PDR II I

'f the jurisdiction of the Nuclear Regulatory Commission ("NRC" or " Commission") does not extend to ratemaking matters.

Moreover, CEPA has failed to meet, and has barely addressed, the - criteria for acceptance of a late-filed contention.1 Accordingly, CEPA's request for a late-filed contention as

. well as _ its implicit request for re-admission to the pro-ceeding should be denied.

Argument As explained by the Licensing Board in its Special Prehearing -Conference Order related to offsite emergency planning contentions issued April 20, 1984, CEPA's continued status as a party to this proceeding was conditioned upon its participation in offsite emergency planning con-tentions.A! CEPA proposed no such' contentions and~did not attend the related prehearing conference. Accordingly, CEPA

. was dismissed.5_/

CEPA now-see).s admission of a new late-filed contention which concerns a petition filed by Applicant before the PUC seeking.to establish procedures which "will synchronize base rate recognition of ' Unit 1 . .. with its commercial

~

3/ Additionally, because'CEPA has been dismissed from the proceeding, the organization itself would have to be re-admitted.as a late intervenor. No such petition has R^- -been filed.

4,/ ' Limerick', supra, LBP-84-18 (slip op. at 2).

5/ Id.

a +1 - ww- -,y<

gy T'

1 operation date."6/ The situatica addressed by the petition before the PUC is stated as-follows:

The inability to precisely forecast the commercial operation date of Limerick Unit 1 could be disastrous from a financial standpoint. If test op-erations .are completed sooner than anticipated, the unit . would begin commercial operations before the rate case was . completed. On that date the income attributable to the investment in Limerick 1, which is currently being accrued as allowance for funds used during- construction (AFUDC), would

.ccase. In addition, PECO would begin to pay the costs of operating the unit and customers would receive the energy cost benefits of Limarick 1 under PECO's ECR Tariff. However, no revenues would be available from customers to recover the cost of Limerick 1. . . .

Alternatively, an extended period of test operations could delay commercial operation of the unit be , ond the end of the future test year, and base rate recognition- of the unit's cost of operation, including depreciation, expenses and a return on the investment could be challenged on that basis. If recovery were denied due to uncertainty

-about the in service date of Limerick 1, PECO.could be required to file a second

~

rate increase and the problem of syn-chronizing rates and service would be further exacerbated.7/

As is plainly evident, the reference in the petition before the-PUC to testing for Limerick relates only to its

-6/ Petition of Philadelphia Electric Company for a Declaratory Order Before the Pennsylvania Public Utility Commission, Docket No. P-840514 at 1 (filed June 15, 1984).

7/. -Id. at 3-4.

-. - ---v,- , , ,,--.m.

.c

_7 timing. in predicting the approximate date of " commercial

' operations for Unit 1. The problem of synchronizing commer-cial' operation of Unit 1 with the conclusion of PUC ratemaking' hearings exists whether tests are completed beforeLor after the conclusion of the rate.aaking proceeding befor3 the PUC.. Accordingly, there is no basis for CEPA's idssertion that the relief requested before t. lie PUC is in any way an admission that testing for Limerick Unit 1 or the safe operation of the plant will be affected.

In an unbroken ~1ine of authority, it has been held that such'ratemaking matters are beyond the jurisdiction of the

.NRC. -

CEPA would -nonetheless have this Board litigate

~ '

. issues regarding Applicant's. request before the PUC concern-ing its .ratemaking ' procedures. Such matters are clearly beyond the authority of the NRC.- Moreover, no nexu; shatev-er .between l Applicant's request and the public health and safety ~ .has been demonstrated.- .As noted, Applicant's concerns _ relate to synchronization of commercial operation of Limerick- Unit 1 -with the conclusion of ratemaking

' 8]f E.g.f Portland General Electric Company (Pebble Springs Nuclear-Plant, Units 1 and 2) , CLI-76-27, 4 NRC 610,

~

614 -(1976); . Houston ' Lighting & Power Company (Allens Creek 2 Nuclear Generating Station, Unit-1), ALAB-582, 11 AL NRC 239, ?.43 n.8 (1980); Kansas Gas'& Electric Company (Wolf Creek Generating Station, Unit 1) , ALAB-424, 6

-W NRC 122, .128 n.7 (1977); Tennessee Valley Author.Qt

+

, -(Watts :Bar Nuclear - Plant, Units 1 and 2) , ALAB-413, 5-

~

NRC. 1418, 1420-21 (1977); Detro'.t Edison Company

-(Greenwood Energy Center, Units 2 ar.d 3 ) , ALAB-3 7 6 , 5

-NRC 426 (1977).

s

-(  ;-.* '

b

4 L'

proceedings, regardless of whether commercial operation precedes or follows their conclusion.

Finally,.CEPA has only barely addressed the require-ments for ~ late-filing petitioners and proposed late con-tentions under 10-C.F.R. S2.714 (a) (i)-(v) . On examination, it has not' met any of the five criteria and certainly has not satisfied those standards on balance. CEPA has failed to show " good cause"-for waiting a full month before filing

. , , its request. Its interests relate primarily to matters before-the.PUC and may be best addressed to that agency. By its previous . performance in the proceeding and subsequent dismissal, CEPA has demonstrated little if any capacity to assist the Board in developing a sound record. Its interests regarding low power testing procedures will be adequately represented by the Staff. Admission of. the proposed late contention will undoubtedly broaden the issues and potentially delay the issuance of either a low-power or G full'-power operating license for. Limerick Unit 1.E!

9_/ For the sake of brevity, Applicant respectfully refers the-Board to its discussion of the cases applying the five separate requirements for late-filed contentions under 10 C.F.R. S2.714 (a) (1) (i)-(v) in Applicant's Answer to Motion by FOE for Admission of New, Late Contentions Related to Applicant's Motion for an Expedited PID and Issuance of a Low-Power License (June 1, 1984). In view of . the insurmountable barriers to

'the admission of CEPA'. proposed late-filed contention, the Licensing Board need not determine whether CEPA

.would also have to satisfy the requirements for reopening the record. See, e.g., Long Island Lighting (Footnote Continued) b .

4 v.

Conclusion For the reasons discussed more fully above, CEPA has

failed to.show that it should be re-admitted to the proceed-ing ' or that it has met the Commission's requirements for

- admitting late-filed contentions. Its only proposed con-tention~ is wholly lacking in any basis and concerns ratemaking matters, which lie beyond the jurisdiction of the NRC. Accordingly, the proposed' contention should be denied.

Respectfully submitted, CONNER & WETTERHAHN, P.C.

,i.

M Troy . Conner, Jr.

Robert M. Rader Counsel for the Applicant

- July 27, 1984 L

T.

[

(Footnote Continued)

Company .(Shoreham~ Nuclear Power. Station, Unit 1) ,

LBP-83-57, 18 NRC 445, 632 (1983).

-t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

1 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 CEPA's ' Safety Contentions," dated July 27, 1984 in the captioned matter have been served upon the following by deposit in the United States mail this 27th day of July, 1984:

Lawrence 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 U.S. Nuclear Regulatory Washington, D.C. 20555 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' Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 E

i t

Atomic Safety and Licensing Angus Love, Esq.

Board Panel 107 East Main Street U.S. Nuclear Regulatory Norristown, PA 19401 Commission Washington, D.C. 20555 Robert J. Sugarman, Esq.

Sugarman, Denworth &

Philadelphia Electric Company Hellegers ATTN: Edward G. Bauer, Jr. 16th Floor, Center Plaza Vice President & 101 North Broad Street General Counsel Philadelphia, PA 19107

-2301 Market Street Philadelphia, PA 19101 Director, Pennsylvania Emergency Management Agency Mr. Frank R. Romano Basement, Transportation 61 Forest Avenue and Safety Building Ambler, Pennsylvania 19002 Harrisburg, PA 17120 Mr. Robert L. Anthony Martha W. Bush, Esq.

Friends of the Earth of Kathryn S. Lewis, Esq.

the Delaware Valley City of Philadelphia 106 Vernon Lane, Box 186 Municipal Services Bldg.

Moylan, Pennsylvania 19065 15th and JFK Blvd.

Philadelphia, PA 19107 Charles-W. Elliott, Esq.

Brose and Postwistilo Spence W. Perry, Esq.

1101 Building Associate' General Counsel

-llth & Northampton Streets Fcderal Emergency Easton, PA 18042 Management Agency 500 C Street, S.W., Rm. 840 Mrs.'Maureen Mulligan Washington, DC 20472 Limerick-Ecology Action P.40. Box 761- . Thomas Gerusky, Director

'762 Queen Street Bureau of Radiation Pottstown, PA 19464 Protection Department of Environmental Zori G. Ferkin, Esq. Resources Assistant Coun el 5th Floor, Fulton Bank Bldg.

Commonwealth of Pennsylvania Third and Locust Streets Governor's Energy Council- Harrisburg, PA 17120 1625 N. Front Street-Harrisburg, PA 17102 Jay M. Gutierrez, Esq.

U.S. Nuclear Regulatory Commission 631 Park Avenue King of Prussia, PA 19406

.)

1 1

s.

James Wiggins' '

Senior Rcsident_ Inspector U.S. Nuclear Regulatory l Commission P.O. Box 47 Sanatoga,7PA 19464 Timothy R.S. Campbell Director

-Department of Emergency Services 14-East Biddle Street West Chester, PA 19380 j o '

A '

Robert M. Rader 9

, .,. -,y <, p. c.w.- .- .--e ~,n. e. ~