ML20094K087

Reply to Applicant & Staff Answers to Cepa Safety Contentions.Contentions Should Be Admitted.Certificate of Svc Encl

ML20094K087
Person / Time
Site:	Limerick
Issue date:	08/09/1984
From:	Hershey S CEPA
To:	Atomic Safety and Licensing Board Panel
References
OL, NUDOCS 8408140540
Download: ML20094K087 (7)

Text

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UNITED STATES OF AMERICA 00(fl NUCLEAR REGULATORY COMMISSION N O BEFORE THE ATOMIC SAFETY AND LICENSING BOA d fgg7 In the Matter of

'38 PHILADELPHIA ELECTRIC COMPANY  : fj

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Docket Nos.50-35L [ ;4~

(Limerick Generating Station,  :

Units 1 and 2)  :

50-353(;,[ ,

CEPA'S REPLY TO ANSWERS FILED BY APPLICANT AND STAFF TO CEPA'S SAFETY CONTENTIONS On August 1, 1984, Applicant mailed to counsel for CEPA its Answer to CEPA's Safety Contentions. CEPA had not previously been served because, according to the applicant's counsel, CEPA had been removed from the service list. This Reply is thus timely under the Rules of this Commission at S 2.706.

I. THE NRC ALONE HAS JURISDICTION OVER THESE CONTENTIONS Neither the Staff nor Applicant's Answers address the issue raised by CEPA. CEPA has not raised a rate-making issue which will be decided by the Pennsylvania Public Utility Commission. CEPA has not raised any issue which the Applicant requested the PA. PUC to de-cide in its Petition for Declaratory Order.

CEPA does raise the issue of the Applicant's ability to safely test the Limerick plant prior to commercial operation. The PUC has no jurisdiction over that issue. No rate-making issues are raised by these contentions.

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l CEPA relies on PECO's own statement connecting their ability to cafely test the plant with an unprecedented request for relief from the PUC. . That connection, made by PECO itself, points out the fragi-lity of PECO's situation. If, by their own admission, their ability i

to safely test a plant located in a densely populated area rides on request for relief that would require an abandonment of normal regula-tory practice, what then is the true situation?

Is PECO properly testing the plant? Will they be able to do so?

What risks are imposed for public health and safety if PECO's situation is so unstable? Those are the issues raised by CEPA's Safety Conten-tions. Only this Commission has jurisdiction over these questions.

II. CEPA HAS STANDIIIG By order of this Commission, CEPA was deemed to have standing to litigate issues of off-site emergency-planning contentions. That standing was based on the direct impact that emergency planning con-tentions have on CEPA and its members. No less can be said of the safety issues raised by CEPA in the contentions now being discussed.

CEPA stands in the same relationship to these contentions as to the earlier off-site emergency planning contentions.

PECO's claim that the dismissal of CEPA as a party because of failure to litigate emergency planning contentions or to appear at a related pre-hearing conference is much like the story of the French law which prohibits both rich and poor from sleeping under the bridges of Paris. Only the poor violate the law. In this case, CEPA did not have the resources to devote to such litigation. CEPA had planned to be in-

volved, but was unable to participate.

Such failure (which would have been avoided if CEPA had had the generous resources available to some other parties in thir case) should not be the instrument used to prevent this Commission from determining whether serious safety problems exist at Limerick.

III. CEPA HAS SATISFIED THE REQUIREMENTS FOR LATE-FILED CONTENTIONS 10 C.F.R. S 2.714 (a) (1) creates a balancing test involving five factors for late-filed contentions. Those factors are:

(i) good cause, if any, for failure to file on time; (ii) the availability of other means to protect petitioner's interests; (iii) the extent to which petitioner's participa-tion might be expected to assist in de-veloping a sound record; (iv) the extent to which existing parties will represent the petitioner's interent; and (v) the extent to which petitionor's partici-pation will broaden the issues or delay the proceeding.

CEPA has demonstrated that the balance weighs heavily in favor of ad-mission of these contentions.

CEPA filed the contentions less than three weeks after obtaining the information which forms the basis for these contentions. Staff acknowledges that CEPA acted promptly in filing. NRC Response to CEPA's Safety Contentions at 4. The staff however, fails to find the nexus between CEPA's claims and PECO's Petition for a Declaratory Order, claiming that "nowhere in the Applicant's request with the PUC is there a statement that if the PUC denies the Applicant's request that there will be any effect on its ability to test the facility" Id.

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2 55 SFfEZ Staff overlooks the clear meaning of the sentence quoted from PECO' s

. petition.

r scar The declaratory order is requested to ensure "that Lime-2 17::

."' " rick l'will be completed and safely tested on a timely basis ..."

((1 Petition for Declaratory Order at 10, paragraph D [ emphasis added].

mJ59 ai" The only reason such a statement would appear in such a petition j]gy would be to provide a reason why the PUC should grant the relief re -

[] quested.

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.The implication is clear - failure to grant the relief means

p that PECO may not be able to safely test Limerick 1 .

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Since the PUC

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has refused such declaratory orders and stated that they will not be-jh coue a part of standard regulatory treatment of plant investment (Peti-

((

fisia tion of West Penn Power Company for Declaratory Order , Docket No.

].jjj-P-840507, Decision of July 6, 1984), it is obvious that PECO raises

$f an issue which is neither remote nor academic CEPA merely asks the NRC to investigate the problems which required PECO to make c su an h

admission.

~~

Since the PUC has no jurisdiction over the safe testing of Li mer-1? rick 1, questions of nuclear safety being reserved to the NRC, CEPA jj has no other means available to protect its interests.

" Staff claims that though this is the " proper forum in which hea lth and safety issues involving testing at LGS, Unit 1 should be heard", no health and safety issue has been raised' CEPA believes that potential inability to safely test a large nuclear unit located in a densely popu-E lated area necessarily raises health and safety issues .

CEPA and its attorney have litigated PECO related issues since 1979 and expect to be able to assist in developing a sound record .

One must assume, however, that when an issue raising such serious questions is

brought before this' Commission it would not be rejected merely because a party is inexperienced in NRC litigation.

As to the fourth factor to be considered, CEPA would welcome any othes party's participation in the litigation of these issues. No other party, however, has indicated any willingness to pursue the questions raised.

NRC review of these contentions may very well broaden the issues or delay the proceedings. Such is the functior of this proceeding.

Licensing hearings are not designed to rubber stamp requests to operate nuclear power plants. The hearings are designed to protect the health and safety of the public. When questions arise concerning testing of a unit like Limerick in an area like suburban Philadelphia, CEPA be-lieves that this Licensing Board would be derelict in its duty if it did not brodden its inquiry and,take the time to thoroughly investigate the issues. , -

For all of the foregoing reasons, CEPA requests that CEPA's conten-tion be admitted.

Respectfully submitted, i

AUGUST 9, 1984

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5TEVEN P. HERSHEY, 1 Attorney for CEPA

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD p U$

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In the Matter of ) *g4 PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50- fpk$;jg

') c,50-353 g y (Limerick Generating Station, ) i -

Units l'and 2) ) alSis,

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CERTIFICATE OF SERVICE I hereby certify that copies of the attached in the above-captioned proceeding have been serced on the following by deposit in th United States mail, first class, this 9th day of August 1984:

Lawrence Brenner, Esq., Chairman Mr. Edward G. Bauer, Jr.

Administrative Judge Vice President & General Counsel Atomic Safety and Licensing Board Philadelphia Electric Company Panel 2301 Market Street U.S. Nuclear Regulatory Commission Philadelphia, PA 19101 Washington, D.C. 20555 Troy B. Conner, Jr. , Esq.

Dr. Richard F. Cole Mark J. Wetterhahn, Esq.

Administrative Judge Conner and Wetterhahn Atomic Safety and Licensing Board 1747 Pennsylvania Avenue, N.W.

Panel Washington, D.C. 20006 U.S.. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Marvin I. Lewis 6504 Bradford Terrace Dr. Peter A. Morris Philadelphia, PA 19149 Administrative Judge Atomic Safety and Licensing Board Joseph H. White, III Panel 15 Ardmore Avenue l U.S. Nuclear Regulatory Commission Ardmore, PA 19003 Washington, D.C.- 20555 i

Martha W. Bush, Esq.

! Mr. Frank R. Romano 1500 Municipal Services Building Air and Water Pollution Patrol 15th Street and JFK Boulevard 61 Forrest Avenue Philadelphia, PA 19107 Ambler, PA 19002 Ms. Maureen Mulligan Limerick Ecology Action 762 Queen Street Pottstown, PA 19464

Thomas Gerusky, Director Zori G. Ferkin Bureau of Radiation Protection Governor's Energy Council Dept. of Environmental Resources P.O. Box 8010 Sth Floor, Fulton Bank Building 1625 N. Front Street Third and. Locust Streets Harrisburg, PA 17105 Harrisburg, PA 17120 Spence W. Perry, Esq.

Director Associate General Council Pennsylvania Emergency Management Federal Emergency Management Agency Agency Room 840 Basement, Transportation & Safety 500 C Street, S.W.

Building Washington, D.C. 20472 Harrisburg, PA 17120 Robert J. Sugarman, Esq.

Robert L. Anthony Sugarman, Denworth & Hellegers Friends of the Earth of the 16th Floor, Center Plaza Delaware Valley 101 North Broad Street 103 Vernon Lane, Box 186 Philadelphia, PA 19107 Moylan, PA 19065

-James Wiggins Angus R. Love, Esq. Senior Resident Inspector Montgomery County Legal Aid U.S. Nuclear Regulatory Commission 107 East Main Street P.O. Box 47 Norristown, PA 19401 Sanatoga, PA 19464 Charles W. Elliott, Esq. Atomic Safety and Licensing Board Brose & Poswistilo Panel 1101 Building U.S. Nuclear Regulatory Commission llth and Northampton Streets Washington, b.C. 20555 Easton, PA 18042-Atomic Safety and Licensing Appeal David Wersan Board Panel Consumer Advocate U.S. Nuclear Regulatory Commission Office of Attorney General Washington, D.C. 20555 1425 Strawberry Square Harrisburg, PA 17120 Docketing and Service Section Office of the Secretary Jay Gutierrez U.S. Nuclear Regulatory Commission Regional Counsel Washington, D.C. 20555 USNRC, Region I 631 Park Avenue Timothy R. S. Campbell, Director Department of Emergency Services Nathene A. Wright, Esq. 14 East Biddle Street Counsel for NRC Staff West Chester, PA 19380 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l.

STEVEN P. HERSHEY W

Counsel for CEPA

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