ML20094L561
| ML20094L561 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 08/13/1984 |
| From: | Wetterhahn M CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-778, OL, NUDOCS 8408150387 | |
| Download: ML20094L561 (10) | |
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UNITED STATES ~OF AMERICA.
DOCHETED USNRC NUCLEAR REGULATORY. COMMISSION
'Before the Commission
. AGO 15 A10:55 -
In the Matter of
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LFFIC' CF ::Ei:RtIM 3
accm ima s se a Philadelphia Electric. Company-
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DocketNodUbbi3520 L-
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50-353 O (
-(Limerick Generating Station,
)
Units 1 and 2)
. )
APPLICANT'S ANSWER IN-OPPOSITION TO'THE PETITION OF FRIENDS OF THE EARTH TO REVIEW ALAB-778-Introduction
-On-August - 1, 1984, Robert L.
Anthony for.himself and for Friends of the' ' Earth (collectively " FOE")
served a-pleading dated July 31, 1984 entitled " Appeal to the Commis-sion from the' Memorandum and Order of-the Atomic Safety and Appeal Board, 7/23/84 ( ALAB-778),vs, Anthony / FOE Appeal.of 7/3/84."
FOE seeks to invoke the Commission's jurisdiction to review - a decision 'of the~ Atomic Safety and Licensing Appeal Board,
(" Appeal Board") ALAB-778.1!
In that deci-sion, the. Appeal Board found no merit in FOE's appeal from an oral ruling of the presiding Atomic Safety and Licensing
' Board
(" Licensing Board").
The Licensing Board.had denied 1/
Philadelphia Electric Company (Limerick Generating
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Station, Units 1 and 2), ALAB-7 78, 20 NRC (July 23, 1984).
'84081'50387 840013 PDR ADOCM 05000352 9
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I pleadings, S! which FOE's June 18, 1984 and June 19, 1984 sought to raise contentions relating to the-movement of new fuel from 'its already authorized onsite outdoor storage location to the reactor building and its storage therein, in an oral ruling of-June 19, 1984.
(Tr. 12057-63).
In that
. ruling, the Licensing Board found that a previous decision, LBP-84-16,1! in which it had determined-that no health and safety or other impact related to the requested action still~
controlled.
FOE had previously contested the issuance of the Part-
- 70. license involving the storage and handling of unirradi-ated fuel at Limerick and had requested a stay which would I
have prevented fuel from being received onsite.
See LBP-84-16, supra.
In that instance, the Commission declined to review the Appeal Board decision, ALAB-765, affirming the Licensing Board's decision.A!
FOE has appealed that matter 2/
"R.L.
Anthony / FOE Contentions -Based on New Matter, Letter from J.W.
Gallagher/J.S. Kemper, PECo., 6/7/84, Requesting ' Remaining Portion of the License' (Part 70) to Move Fuel to the Refueling Floor, Inspection, and Storage in the Fuel Pool, and Petition for a Stay" (June 18, 1984) and " Anthony / FOE Motion in Addition to Motion of 5/18/84 vs.
PECO Motion of 5/9/84 for Expedited Partial Decision and Low Power License" (June 19., 1984).
3/
Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-84-16, 19 NRC 857, aff'd, ALAB-765, 19 NRC 645 (1984).
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Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-765, 19 NRC 645 (1984).
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'to L the Court 7 of Appeals L for. the Third \\ Circuit, 'which has
-denied'its request for a stay.Eb
. Discussion
~ It '.is :not at :~ all clear what' specific matters ' FOE is-seeking to advance in support of its request for Commission' review and it is difficult'to attempt to trace them to FOE's pleadings before the Appeal Board and.. Licensing Board.-
To the extent' that FOE attempts to' raise matters contained in pleadings filed prior to June la, 1984, the Commission has
- previously considered them :and -determined they did r.c c.
warrant it's review.b!'
FOE's request for Commission consideration contains six numbered paragraphs.
None. present any matter which ' would I
warrant Commission review under.the standards of 10 C.F.R.
S2.786 (b) (4).
The first paragraph complains. principally that the Appeal Board wrongly denied the contentions proferred it.
FOE failed to file any contentions before the Licensing Board.
The Appeal Board found that the four
" contentions" proposed for the first time before it were clearly deficient.
Limerick, supra, ALAB-778 (slip op. at.
11-16).
FOE has failed to point to even a single error of fact or law in the Appeal Board's disposition of these l-5/
Anthony v.
Philadelphia Electric Company, No. 84-3409,
~
(3d Cir. July. 12,.1984) (Order denying stay).
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Memorandum for Board and Parties in the Limerick j
Proceeding from Samuel J. Chilk (June 15, 1984).
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. contentions, let alone anything warranting Commission review.1/
In the second paragraph, FOE states that 'it did not have an opportunity to submit contentions to the Licensing Board.
However, it had Applicant's revision to its license application in hand prior to its filing with the Licensing Board.
There was no reason why FOE could not have' filed contentions in a timely manner before the Licensing Board.
In. any event, as discussed supra, the Appeal Board con-sidered the proferred contentions and found them to be deficient without penalizing FOE fcr its lack of timeliness.
In the third paragraph, FOE states that it was.prej-I udiced because Applicant's letter did not have a docket or license number.
Considering that all parties as well as the Licensing Board and Appeal Board were served, the prejudice suffered by FOE is entirely unclear.
Certainly, this does not rise to the level of an important factual or legal matter warranting Comraission review.
In the fourth paragraph, FOE claims that the " evidence is conclusive that the public health and safety cannot be guaranteed by NRC inspections Such a sweeping attack on the NRC is totally unjustified.
To insinuate 7/
FOE would be " entitled to some form of adjudication" only if it fulfilled the requirements pursuant to. 10 C.F.R.
S2.714
- which, inter
- alia, includes the requirement to state contentions with specificity and bases.
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without the slightest evidence that the NRC will not inspect ca - facility and assure that prerequisites for license i s su--
~
ance have been tulfilled is irresponsible.
Merely because a number or items have been identitied as incomplete at some point-in time does'not mean that they will not be completed prior to fuel? load'ing.8/
Moreover, in a number of cases, FOE fails to distin-guish between' readiness for.the activity-under consid-eration, the movement of fuel, and fuel loading.
Obviously, not all prerequisites for operation of 'the facility must necessarily be ' completed before movement of fuel to. the reactor building is permitted.9I I
In the fif th paragraph, FOE apparently misunderstands the fundamental physical principles and technical bases
{
underlying the safe storage of new fuel.
The Appeal Board explained in ALAB-765 that because of underlying physical l
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FOE's argument that Applicant's motion for a low power and testing license evidences a
defiance of the regulations (a nonsensical.
Initially, as the Appeal Board noted, the matter of the motion for low power license was not relied upon by the Licensing Board and is not ripe for appellate review.
Procedural ~ niceties
- aside, the accusation that any utility would i
purposefully circumvent NRC requirements with regard to low power testing and that the NRC would condone such a 4
course of conduct is scandalous and entirely without basis and should be stricken.
9/
On July 20, 1984, the NRC Office of Inspection and Enforcement found that Applicant was ready to safely 1
move fuel to the reactor building with a few minor matters which were to be corrected shortly.
(Inspection Report 352/84-30)
i' principles,.as far as reactivity _was concerned, dry storage
~
was as safe as underwater storage.-
Limerick,. supra, ALAB-765 (slip op.
at 13).
The section cited by FOE, S2.3.2, speaks to the lack of an adverse reactivity effect were a fuel assembly to be hypothetically dropped on top of-a fuel rack because of the 10 inches.of water between the fuel postulated to be laying on_ top of the fuel racks and the fuel already in the rack.
Were there no water'in the pool, there would be no aoderator and no reactivity problem whatsoever.
The sixf:h paragraph is a renewal of FOE's request for a stay, incorporating by reference a section of its filing before the Appeal Board.
FOE merely asserts generally that the standards for a stay have been met.
This is certainly not sufficient, particularly now that the Appeal Board and Licensing Board, each on two occasions, have found against FOE on the merits.
See Applicant's Brief in Opposition to Request By Intervenor Friends of the Earth for a Stay of Onsite Storage of Unirradiated Fuel (March 28, 1984 at 3-8) which is incorporated herein by reference for a discussion of the criteria for a stay.
FOE has not shown itself entitled to the relief which it seeks.
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Note that this paragraph was unchanged by the recent amendment.
- Thus, any contention based upon this paragraph would be inexcusably late.
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_7-V Conclusion Contrary to the requirement of 10 C.F.R.
S2.786, FOE has failed to identify any important question of fact, law, or policy worthy of Commission review.
Moreover, it has
'shown - no substantial conflict between the Appeal Board and Licensing. Board on any factual matters.
For these' reasons, the Commission should not accept review of the Licensing-Board and Appeal Board decisions.
Respectfully submitted, CONNER & WETTERHAHN', P.C.
Mark J. Wetterhahn Counsel for Philadelphia Electric Company August 13, 1984 i
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' UNITED STATES OF, AMERICA
' NUCLEAR REGULATORY' COMMISSION
- In the Matter of-
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Philadelphia Electric Company-
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Docket'Nos. 50-352
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50-353 (Limerick Generating Station,
)
Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that. copies of " Applicant's Answerlin Opposition to the Petition of Friends of the. Earth to Review ALAB-778," dated ~ August 13, 1984 in -.. the captioned 1 matter,,
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have been served upon the following by deposit in the United States mail this 13th day of August, 1984:
. Christine N. Kohl, Esq.
Dr. Richard F. Cole g
Chairman-Atomic Safety,and-Atomic Safety and Licensing Licensing Board j.
Appeal ~ Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555*
Dr. Peter A. Morris Gary J. Edles Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory.
U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 I
Washington, D.C.
20555 Atomic Safety and Licensing.
Dr. Reginald L. Gotchy Appeal Panel-Atomic Safety and Licensing U.S. Nuclear Regulatory j
Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission F
Washington, D.C.
20555 Docketing and Service Section Office of the Secretary 1
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 i
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Ann P. Hodgdon, Esq.
Angus Love, Esq.
Counsel for~NRC Staff 107 East Main Street Office of-the Executive Norristown, PA 19401 4
Legal Director Robert J. Sugarman,-Esq.
U.S. Nuclear Regulatory Commission Sugarman, Denworth &
Washington, D.C.
20555 Hellegers
-16th Floor, Center Plaza Atomic Safety and Licensing
.101 N. Broad Street.
Board Panel
. Philadelphia, PA 19107' U.S. Nuclear Regulatory Commission Director, Pennsylvania
- Washington, D.C.
20555 Emergency Management Agency Basement,' Transportation Philadelphia Electric Company and Safety Building Edward G. Bauer, Jr.
Harrisburg, PA.17120 ATTN:. Vice President &
General Counsel Martha W. Bush, Esq.
2301 Market Street Kathryn S. Lewis, Esq.
Philadelphia, PA 19101 City of Philadelphia Municipal Services Bldg.
Mr. Frank R. Romano 15th and JFK Blvd.
61 Forest Avenue Philadelphia, PA 19107 Ambler, Pennsylvania 19002 Spence W. Perry, Esq.
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i Mr. Robert L. Anthony Associate General Counsel Friends of the Earth of Federal Emergency the Delaware Valley Management Agency 106 Vernon Lane, Box.186 500 C Street, S.W., Rm. 840 Moylan, Pennsylvania 19065 Washington, DC _20472' Mrs. Maureen Mulligan Thomas Gerusky, Director Limerick Ecology Action Bureau of Radiation P.O. Box 761 Protection 762 Queen Street Pottstown, PA Department of Environmental 19464 Resources 5th Floor, Fulton Bank Bldg.
Charles W. Elliott, Esq.
Third and Locust Streets Brose and Postwistilo Harrisburg, PA 17120 1101 Building lith &
Northampton Streets James Wiggins Easton, PA 18042 Senior Resident Inspector U.S. Nuclear Regulatory Jay M. Gutierrez, Esq.
Commission U.S. Nuclear Regulatory P.O. Box 47 Commission Sanatoga, PA 19464 i
Region I 631 Park Avenue King of Prussia, PA 19406 i
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,4 Zori G. Ferkin Commonwealth of Pennsylvania Governor's Energy Council P.O. Box 8010 1625 N. Front Street Harrisburg, PA 17102 Timothy R.S. Campbell Director Department of Emergency Services 14 East Biddle Street West Chester, PA 19380
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j Nils N. Nichols g
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