ML20095E442
| ML20095E442 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 08/21/1984 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| OL, NUDOCS 8408240241 | |
| Download: ML20095E442 (46) | |
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UNITED STATES OF AMERICA 00CKETED NUCLEAR l REGULATORY COMMISSION U98C Before the Atomic Safety and Licensing Appeal Board - -
d4 ASO 23 ' A11 :45 Administrative Judges Christine N. Kohl, Chairman Gary'J. Edles Dr. Reginald L. Gotchy In the Matter of )
)
Philadelphia Electric Company. ) Docket Nos. 50-352 (Limerick Generating Station,
) 50-353 dd
)
Units 1 and 2) )
APPLICANT'S ANSWER TO MOTION BY DEL-AWARE UNLIMITED, INC. TO SET ASIDE THE PARTIAL INITIAL DECISION BASED ON NEW EVIDENCE Troy B. Conner, Jr.
Robert M. Rader Conner & Wetterhahn, P.C.
Suite 1050 1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20006 Counsel for the Applicant Philadelphia Electric Company Of Counsel:
Edward G. Bauer, Jr.
Eugene J. Bradley Philadelphia Electric Company 2301 Market Street l Philadelphia, PA 19101
)
August 21, 1984
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-TABLE OF CONTENTS Page
-Preliminary Statement . . . . . . . . .. . . . 1 Argument . . . . . . . . . . . . . . . . . . . 4 I. The Decision of the Pennsylvania Environmental Hearing Board Does Not Warrant Reopening . . . . . . . . 4 A. Potential for Erosion in the East Branch Perkiomen Creek . . 4 B. Requirement for.an NPDES Permit . . . . . . . . . . . . . . 8 II. Actions by the Pennsylvania PUC Do Not Warrant Reopening the PID . . 11 III. Discussion in 1972 of a Decision Not to Channelize the East Branch Perkiomen Creek Raises No New Issue . . . . . . . . . . . . . . . . 13 IV. Other Documents Cited by Del-Aware do not Support Schuylkill River Alternatives for Limerick Unit 1 . . 16
- V. The Staff Has Not Engaged in any Ex Parte Communications .
. . . . . . 20 VI. It is Not the Obligation of Boards or the Staff to Develop or Require Submission of Potential Alternatives . . . . . . . 21 Conclusion . . . . . . . . . . . . . . . . . . . 24 TABLE OF CITATIONS Cases Natural Resources Defense Council v.
Morton, 458 F.2d 827 (D.C. Cir. 1972) . . . . 24
Nuclear Regulatory Commission Issuances Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2),
ALAB-443, 6 NRC 741 (1977) . . . . . . . . . . 12 Consumers Power Company (Midland Plant, Units 1& 2) , ALAB-6 84, 16 NRC 162 (1982) . . . . . . 6 Detroit Edison Company (Greenwood Energy Center, Units 2 and 3), ALAB-376, 5 NRC 426 (1977) .. . . . . . . . . . . . . . . . . 11 Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760 (1982) 7 Duke Power Company (Catawba Nuclear Station, Units 1 and 2) , ALAB-687, 16 NRC 460 (1982), rev'd on other -
grounds, CLI-83-19, 17 NRC 1041 (1983) . . . . 15 Duke Power Company (Catawba Nuclear Station, Units 1 and 2) , CLI-83-19, 17 NRC 1041 (1983) . . . . . . . . . . . . . . . . 15 Houston Lighting & Power Company (Allens Creek Nuclear Generating Station, Unit 1) ,
ALAB-582, 11 NRC 239 (1980) . . . . . . . . . . 11 Kansas Gas & Electric Company (Wolf Creek Generating Station, Unit No. 1) , ALAB-4 24, 6 NRC 122 (1977) . . . . . . . . . . . . . . . 11
, Kansas Gas & Electric Company (Wolf Creek Generating Station, Unit No. 1) ,
Docket No. 50-482 OL, " Initial Decision (Operating License)" (July 2, 1984) . . . . . . 8 Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1) , LBP-83-30, 17 NRC 1132 (1983) . . . . . . . . . . . . . . 7 Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1) , ALAB-743, i 18 NRC 387 (1983) . . . . . . . . . . . . . . . 7 Louisiana Power & Light company (Waterford Steam Electric Station, Unit 3), ALAB-753, 18 NRC 1321 (1983) . . . . . . . . . . . . . . 7
g.
Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), Docket No. 50-289 SP, " Memorandum," (ALAB Order)
(November 29, 1983) . . . .. .. . . . . . . . 6 Mississippi-Power & Light Company (Grand Gulf Nuclear Station, Units 1 & 2) , ALAB-704, 16 NRC 1725 (1982) . . . . . . . . . . . . . . . . . 7 Northern States Power Com?any (Tyrone Energy Park, Unit 1), ALAl-464, 7 NRC 372 (1978) . . . . . . . . . .. . . . . . . . . 13 Northeast Nuclear Energy Company (Montague Nuclear Power Station, Units 1 and 2), LBP-75-19, 1 NRC-436 (1975) . . . . . 20 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 & 2) ,
, CLI-81-5, 13 NRC 361 (1981) . . . . . . . . . . 8 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, 'Jnits 1 & 2),
CLI-82-39, 16 NRC 1712 (1982) . . . . . . . . . 8 i Philadelphia Electric Company (Limerick l
l Generating Station, Units 1 and 2) ,
i LBP-82-43A, 15 NRC 1423 (1982) . . . . . . . . 5 1
i Philadelphia Electric Company (Limerick j Generating Station, Units 1 and 2), LBP-83-11, j 17 NRC 413 (1983) . . . . . . . . . . . . . . . 1, 10 -
i
" Memorandum and Order (Concerning i Objections to June 1, 1982 Special
- Prehearing Conference Order)"
l (July 14, 1982) . . . .. . . . . . . . . . 5
" Confirmatory Memorandum and Order
- (Denying Motion of Del-Aware to Change Hearing Schedule)" (October
, 20, 1982) . . . . . . . . . . . . . . . . . 8 I
" Memorandum and Order - Denying Petitions of Del-Aware for Reconsideration and to Admit a '
4 Late Contention" (March 8, 1983) . . . . . 17, 18
" Order" (July 20, 1983) . . . . . . . . . . 5
" Order" (September 2, 1983) . . . . . . . . 5 ver
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v
" Memorandum and Order Denying Del-Aware's Motions to Reopen the Record to Admit Late-filed Contentions V-30, V-31, V-32, V-33, V-35 and V-36" (April 19,1984) . . . 3, 16, 24 L " Director's Decison under 10 CFR S2.206" (April 25, 1984) . . . . . . . . . 21
" Memorandum" (July 11, 1984) . . . . . . . 2
" Order" (August 9,1984) . . . . . . . . . 1 Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2),
CLI-76-27, 4 NRC 610 (1976) . . . . . . . . . . 11 Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2) , ALAB-493, 8 NRC 253 (1978) . . 20 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
CLI-83-23, 18 NRC 311 (1983) . . . . . . . . . 15 Southern California Edison Company (San
- Onofre Nuclear Generating Station, Units 2 and 3), ALAB-171, 7 AEC 37 (1974) . . . . . . 12 Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2) , ALAB-413, 5 NRC 1418 (1977) . . . . . . . . . . . . . . . . 11 i Toledo Edison Company (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752 (1975) . . 8 l Washington Public Power Supply System l (WPPSS Nuclear Project No. 3), ALAB-747, l
18 NRC 1167 (1983) . . . . . . . . . . . . . . 7 i
Statutes Section 402 of the Clean Water Act, 33 U.S.C. 51342 . . . . . . . . . . . . . . . . 9 !
Nuclear Regulatory Commission Regulations 10 C.F.R. 52.101 . . . . . . . . . . . . . . . 23 10 C.F.R. S2.102(a) . . . . . . . . . . . . . . 20 l
I
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s' 10 C.F.R. 52.206 . . . . . ........... 7, 21
. 10 C.F.R. $2.714(a)
. . . . ........ . . 6, 7 l
. 10 C.F.R. 52.780 .:.. . . ........... 20 10 C.F.R. 551.45 . . . . . .......... 23 10 C.F.R. 551.50 . . . . . .......... 23 l
Issuances of the Pensylvania Environmental Hearing Board l
Adjudication of the Environmental-Hearing Board (June 18,'1984) . . . .......... .
11, 19 Miscellaneous 49 Fed. Reg. 9353 (March 12, 1984) . . . . . . 23 49 Fed. Reg. 24512 (June 14,1984) . .. . . . . 23 i Final Environmental Statement Related to the Operation of Limerick Generating Station, Units 1 and 2 (April 1984) . . .. . . 3 Section 5.3.2.3 . . . ........ . . 10 Section 5.5.2.3- . . . .......... 15 Letter dated April 2, 1984 from William J.
Dircks, Executive Director for Operations, to'the Honorable Peter H. Kostmayer . . . . . . 22 Letter dated May 15, 1984 from Robert J.
Sugarman, Esq. to Christine N. Kohl, Esq. . . . 2 Letter dated June 29, 1984 from Harold R.
Denton to1 Robert J. Sugarman, Esq. . . . . . . 22
, Letter dated July 5, 1984 from Robert J.
l Sugarman, Esq. to Christine N. Kohl, Esq. . . . 2 l
l ' Letter dated July 13, 1984 from Robert J.
- Sugarman, Esq. to Harold R. Denton . . . . . . 7 J
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of ) ~
)
Philadelphia Electric Company ) Docket Nos. 50-352
) 50-353 (Limerick Generating Station, )
Units 1 and 2) )
APPLICANT'S ANSWER TO MOTION BY DEL-AWARE UNLIMITED, INC. TO SET ASIDE THE PARTIAL INITIAL DECISION BASED ON NEW EVIDENCE Preliminary Statement On August 6, 1984,M Appellant Del-Aware Un' limited, Inc. - (" Del-Aware") filed a motion seeking to set aside the Partial Initial Decision ("PID") issued by the Atomic Safety l
and Licensing Board (" Licensing Board") on March 8, 1983 2/
The PID relates solely to the supplementary cooling water
- system for the Limerick Generating Station (" Limerick") .
Del-Aware's motion embodies matters raised with the Atomic Safety and Licensing Appeal Board (" Appeal Board") by ;
1/ The motion is dated July 31, 1984 and the certificato i of service bears the'same date. The cover letter and postmark to the Atomic Safety and Licensing- Appeal Board enclosing the motion is dated August 6, 1984.
The copy'of the motion received by Applicant's counsel l was postmarked August 6, 1984. By Order dated August 9, .1984, _ the Appeal Board ruled - that the time for a response would run from that date.
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2/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2) , LBP-83-11, 17 NRC 413 (1983).
. i 1
_ _ . . . _ - _ _ _ . . _ . _ _ . - . _ . _ _._._..a _ _._ _. _ _ ,____ _
I letter of July 5, 1984. Following its receipt of the letter, the Appeal Board issued a Memorandum, dated July 11, 1984, declining to take any action with regard to any'of the
" requests" in Del-Aware's July 5, _1984 letter or any future letter. The Appeal Board stated that Del-Aware must formal-ly submit appropriate pleadings for the Board to entertain its request for relief.
This is the second motion by Del-Aware requesting the Appeal Board to set aside the PID in addition to yet another filed with the Licensing Board. By letter dated . May 15, 1984, Del-Aware cited various actions by the Neshaminy Water.
Resources Authority in Bucks County with regard to the Point Pleasant project in support of its allegation that Point Pleasant is not a viable source of supplementary cooling water. Del-Aware asked the Appeal Board to " direct the Licensing Board to direct the applicant to file a revised
^
plan."1/
In an earlier motion to reopen the PID before the Licensing Board, Del-Aware sought to raise issues as to the status of Limerick Unit 2 in the context of proceedings before the Pennsylvania Public Utility Commission.1 The latter motion was denied by the Licensing Board along with
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3/ Letter from Robert J. Sugarman, Esq. to Christine N.
Kohl, Esq. et al. at 3 (May 15, 1984) .
j 4/ Del-Aware's Motion to Reopen PID Proceeding (February 17, 1984).
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other. late-filed contentions, which the Licensing Board held were "neither new nor worthy of reconsideration, let alone significant' issues which would c'hange the results reached by us. in- the P.I.D. or in our orders rejecting previous Del-Aware contentions."b!
As with its earlier pleadings requesting the Licensing Board ~ and Appeal Board to set aside the PID, Del-Aware's-allegations are legally defective. Proceedings before other agencies do not require the Nuclear Regulatory Commission
("NRC or Commission") to reevaluate environmental impacts it has already reviewed concerning the existing supplementary cooling water system for Limerick.b! Nor is the Licensing Board required, as Del-Aware asserts, to identify and evaluate alternatives to the Point Pleasant project because of legal opposition in other agency proceedings.
Insofar as Del-Aware purports to cite "new" evidence, it has failed to raise any matter which is truly new or which raises any significant environmental concern justify-ing a reopening of the closed record on supplementary l
7 5/ Limerick, supra, " Memorandum and Order Denying
- Del-Aware's Motions to Reopen the Record to Admit j Late-filed Contentions V-30, V-31, V-32, V-33, v-35 and i V-36" (April' 19, 1984) (slip op. at 6). The Licensing Board noted thet Del-Aware's Motion to Reopen the PID
" duplicates the arguments in its other motions and is also rejected." g , at 3 n.3.
6/ The. Final Environmental Statement related to Limerick was issued April 1984. 1 i
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- 9 cooling water contentions. Accordingly, the motion to reopen and set aside'the PID should be denied.
' Argument I. The Decision-of the' Pennsylvania Environmental Hearing Board Does Not Warrant Reopening-A. Potential for Erosion in the East Branch Perkiomen Creek The diversion of water from Point Pleasant to the East Branch Perkiomen Creek will provide supplementary cooling water for Limerick. In an Adjudication issued June 18,
- 1984, the Environmental Hearing Board of the commonwealth of Pennsylvania .("EHB") rejected .a number of claims by Del-Aware and others attempting to vacate various permits issued by the Department of Environmental Resources (" DER")
for the Point Pleasant project. The EHB nonetheless de-
- termined that one of the permits sought by Applicant herein would be remanded to DER for imposition of a restriction on the flow velocity in the East Branch of two feet per second.
Del-Aware's argument that these findings would have sustained Del-Aware's allegations in proposed contention V-16 is ultimately self-defeating because it demonstrates Del-Aware's extreme untimeliness.1! This contention was 7/ In its initial filing of contentions, Del-Aware proposed Contention V-16(c) as follows:
"The discharge of the water into the Perkiomen, and into the Schuylkill will cause toxic pollution
{
(Footnote Continued)
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denied by the Licensing Board because, first, it lacks specificity, and second, because "the impacts on the Perkiomen and Schuylkill were considered at the construction permit stages," and no significant changes at the operating licensing stage had been alleged.EI If Del-Aware objected to the Licensing Board's denial of its proposed ' contention, it should have appealed the ruling when it appealed the PID.1! Del-Aware is, in effect, attempting to amend its previously filed exceptions or file (Footnote Continued) and thus substantially and adversely affect fishing and drinking water supplies. The discharge into the Perkiomen will also cause destablization, flooding and otherwise adversely affect the Perkiomen.
See Supplemental Petition of Coordinated Intervenors at 69 (November 24, 1981).
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8/ Limerick, supra, LBP-82-43A, 15 NRC at 1486. The Licensing Board reaffirmed its ruling on Del-Aware's request for reconsideration. See Limerick, supra,
" Memorandum and Order (Concerning Objections to June 1, 1982 Special Prehearing Conference Order)" (July 14, 1982) (slip op.~at 9).
9/
Exceptions to the PID were filed by Del-Aware on March 21, 1983 but, in light of a motion before the Licensing Board to admit a related late contention, Del-Aware was given to July 18, 1983 to file a brief in support of these exceptions. The Appeal Board subsequently struck the documents filed by Del-Aware as its brief and gave it until August 19, 1983 to file a proper brief. See Limerick, supra, " Order" (July 20,' 1983) . Del-Aware's brief was served on August 23, 1983, along with a motion seeking leave to file out time, which the Appeal Board granted. See Limerick, supra, " Order" (September 2, 1983).
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.I new exceptions to - the PID out of time. .This is clearly impermissible.EI
. Del-Aware does'not ask this Board to admit and adjudi-cate any . new contentions ' itself.bI Even so, the decision of the'EHB would not justify admission of a new contention.
The requisite " good-cause".for lateness is clearly lacking.
It is not the date of the decision but rather the availabil-d ity of the evidence - presented to the EHB which determines
- . when Del-Aware could have raised this contention with the Licensing Board. As noted, it filed such a contention in !
1981. Del-Aware ' filed its appeals before the EHB in 1982.NI Del-Aware has failed to show why those witnesses would not have been available to testify before the Licens-ing Board.E!
jl 4
-10/ See, e.g., Consumers Power Company, (Midland Plant, Units 1 & 2) , ALAB-684, 16 NRC 162 (1982). See also Metropolitan Edison Company (Three Mile Island Nuclear 1
^ Station, Unit 1) , Docket No. 50-289 SP, " Memorandum" (ALAB Order) (November 29, 1983) (holding that a party j may not " amend" its appeal) .
- Q/ At pages 5-6 of its Motion, Del-Aware apparently
- addresses the criteria for admitting late contentions 4
under 10 C.r.D. S2.714 (a) (1) (i)-(v) .
- 12/' On July 19, 1982, Del-Aware filed the first of several appeals before the EHB, challenging the validity of permits issued by DER on behalf of Applicant and Neshaminy Water Resources Authority. Other related I
appeals were filed in September 1982.
13/
- As to the other criteria for late contentions, the EHB l decision establishes that there are other adequate
- means to protect Del-Aware's ' interests. Del-Aware's (Footnote Continued) I
. . , + _.4 & s. . , = . m ..y,. . .
7-Norchas Del-Aware ' addressed, much<less satisfied, the additional.three requirements for reopening'a closed record in - order -to pursue - new . contentions. W 1 In Diablo Canyon,
'the: Commission held that where a party moves to; reopen the record'on new contentions, it "must satisfy both the stan-dards for admitting late-filed contentions,-10 CFR 2.714(a),
and the criteria established by case law for reopening the d
(Footnote Continued) interests have been adequately represented by the Staff in the preparation and publication of the-DES and FES
.?
for Limerick.- Also,. Del-Aware-is pursuing allegations related to the EHB decision with the Staff in a petition under Section 2.206. See letter dated July 13, 1984 from Robert J. Sugarman, Esq. to Harold R.
, Denton, Director, Office of Nuclear Reactor Regulation.
l A copy is attached for the convenience of the Board.
1 As to assisting in the development of a sound record, 1
Del-Aware has not complied with requirement of Grand Gulf that "[w] hen a petitioner addresses this criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify
, its perspective witnesses, and summarize their proposed testimony." Mississippi Power & Light Company (Grand Gulf Nuclear Station, Units 1 & 2) , ALAB-704, 16 NRC 1725, 1730 (1982). See also Washington Public Power
'j Supply System (WPPSS Nuclear Project No. 3 ) , . ALAB-7 4 7 ,
' 18 NRC 1167, 1177 (1983); Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1) , ALAB-743, 18 NRC 387, 399 (1983).
It is incontestable that admission of new contentions 1 at this extremely late stage will greatly broaden the j
issues and delay the outcome of the proceeding. See e.g., Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1765-66 (1982);
! Long Island Lighting Company- (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 1146 (1983).
l M/ See generally Louisiana Power & Light Company I
(Waterford Steam Electric Station, Unit 3), ALAB-753, I
18 NRC 1321, 1324 (1983); Fermi, supra, ALAB-707, 16 NRC at 1765.
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record." b For theLreasons discussed above_, which 'largely subsume the considerations for reopening, Del-Aware has l l
failed tc' satisfy the requirements for reopening. Moreover, I inasmuch as the EHB ' decision -.is more restrictive from the perspective of erosion prevention than previous require-ments, it does not' support _ the request- for any further action by the NRC. - !
t 1_5_/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 & 2) , CLI-82-39, 16 NRC 1712, 1715 (1982), citing Diablo Canyon, supra, CLI-81-5, 13 NRC 361 (1981).
16/
-~ At page 2 of its motion, Del-Aware appears to assert 4
that evidence presented to the EHB and Pennsylvania PUC
- could have been presented to the Licensing Board if it 4
had deferred ' hearings on the supplementary cooling water contentions until after issuance of the FES.
Del-Aware filed its Amended Petition to Intervene with Regard to the' Application by PECO Before the PUC for a Finding of Necessity for a Pumphouse at the Bradshaw I Reservoir on July 15, 1982. Its assertion as to its inability to present witnesses from the EHB and PUC cases any earlier is therefore disingenuous.
Moreover, Del-Aware substantially benefited from the expedited hearing on its contentions and acquiesced in the early hearing date. Limerick, supra, " Confirmatory Memorandum and Order (Denying Motion of Del-Aware to Change Hearing Schedule) " (October ' 20, 1982): Toledo i
Edison Company (Davis-Besse Nuclear Power Station),
ALAB-300, 2 NRC 752, 766-67 (1975); Kansas Gas &
Electric Company (Wolf Creek Generating Station, Unit No. 1) , Docket No. 50-482 OL, " Initial Decision i
(Operating ' License) " (July ' 2, 1984) (slip op. at 4 n.2). See also Applicant's Brief 'in Opposition to
! Exceptions by Del-Aware Unlimited, Inc. at 24-37 (October 3, 1983).
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r.
B. Requirement for an NPDES Permit-Del-Aware asserts that the EHB' decision necessitates
, "the construction by PECO of - a . sewage treatment plant to treat : the diverted water prior to discharging it into the
. East Branch < of the ' Perkiomen Creek. "b Del-Aware asserts
- that such' construction will delay operation of the Point-
. Pleasant diversion.at least until the fall'of 1986.
The'EHB decision' does not " entail" construction of - a treatment plant as asserted by Del-Aware, - but, applying Pennsylvania law, merely requires that National Pollutant l' Discharge Elimination System (" NPDES") permits under Section 402 of the Clean Water Act, 33 U.S.C. 51342, be obtained for discharges from the Bradshaw Reservoir into the East B inch Perkiomen'and North Branch Neshaminy Creeks.
Del-Aware's motion makes no factual or legal showing i '
why this finding requires further action by the NRC at this j time or, more specifically, a reopening of the PID. The
! requirement that another permit be obtained does not neces-sarily entail any further environmental review. In this instance, the application for an NPDES permit to allow the diversion of Delaware River water into the East Branch Perkiomen requires no further review by the NRC because the 4 relative quality of these water sources was fully addressed b
17/ Del-Aware's Motion to Set Aside Based on New Evidence at 2 (August 6,1984) .
9.- 4 -gyya y , ,.-t ,,-me-e ge +.+4y -- gmme,-ggi,,. -,.-w.r--em-m-p-wer-moiy---m,mg-a.a---e y 9,e -e rwgw e.g-.--eyae.,%w>e4mi.r.+y g- 9 y-W g =$ y-,sr,we,-3ex s %we gg 9 ynW gs- u
V
, ; by- the - NRC in Section 5.3.2.3 of-its Final Environmental.
Statement. b Accordingly, no new information has been divulged by the issuance of the EHB decision. '
In any event, Del-Aware's allegation that the require-ment of an NPDES permit necessitates consideration of alternatives to Point Pleasant or reopening of the PID is-entirely without merit. No basis whatever is furnished for its conclusion that construction of a sewage treatment plant
- will.be necessary to treat diverted water prior to discharge into the East Branch Perkiomen. Specifically, the EHB did
.I not find that any special measures must be taken in order to obtain an NPDES - permit. The Board simply noted that the permit review process would determine any necessary con-j ditions:
Of course, it may be these substances occur in- such small amounts in the Delaware River water that no treatment j will be required before discharging into i
i 1
18/ Del-Aware did not appeal the Licensing Board's denial of its proposed Contention V-16c regarding alleged
." toxic pollution" of the Perkiomen as quoted and discussed in ' note 7 and the accompanying text, supra.
Moreover, Del-Aware.itself stipulated to the dismissal of admitted. Contention V-16b, which alleged _that "toxics are present in substantial' quantity and there is therefore a' - substant!.al risk of groundwater l contamination and hydraulic saturation." Del-Aware had asserted in this contention that " [t]here has been~no evaluation of the likely impacts of seepage of water and toxics from the Bradshaw Reservoir and transmission mains on groundwater level and quality." See Supplemental Petition of Coordinated Intervenors at II5 (November 24, 1982). The withdrawal of this contention by stipulation is' discussed- in the PID. Limerick, supra, LBP-83-ll, 17 NRC at 418, 440 (1983).
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T the East Branch or North Branch, but this is_ the very question which the NPDES permit _ process is designed to answer. M/
Accordingly, the EHB expressly left this question for determination by the Pennsylvania Department of Environ-mental Resources, which would issue the NPDES permit.
II. Actions by the Pennsylvania PUC Do Not Warrant Reopening the PID Del-Aware cites various actions taken by the Pennsylvania Public Utility Commission ("PUC") concerning its issuance of an order to show cause why the construction of Limerick Unit 2 is in the public interest. Del-Aware makes no connection b3 tween this investigation and the PID or environmental impacts attributable to the Point Pleasant diversion in general. Notwithstanding Del-Aware's charac-terization of the order, the PUC explicitly stated that the order arises from its duty "to guarantee just and reasonable rates and to maintain adequate service." The NRC lacks jurisdiction to consider such matters.EI
~19/ Adjudication of the Environmental Hearing Board (June 18, 1984) (slip op. at 99).
20/ E.g., 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 Nuclear Generating Station, Unit 1) , ALAB-58 2, 11 NRC 239, 243 n.8 (1980); Kansas Gas & Electric Company (Wolf Creek Generating Station, Unit No. 1) , ALAB-424, 6 NRC 122, 128 n.7 (1977); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 1420-21 (1977); Detroit Edison Company (Greenwood (Footnote Continued)
c t.
r~ .
-Del-Aware also discusses-the PUC's review of a decision C .. F -
,by an Administrative Law Judge'regarding PECO's application
'i t s
- for the Brad,shaw Reservoir pumphouse. Del-Aware is appar-
- s
[i entl'y_ referring to a memorandum issued June 26, 1984 postponing the PUC's review pending the receipt of comments
. ,~
L by the parties on the EHB decision issued June 18, 1984.
- Again, Del-Aware makes'no connection between this procedural a'c tion and its request -to reopen the PID or environmental impacts attributable to tie l Point Pleasant diversion.
-The , commission is well aware that bringing a nuclear l powerD5antonlinerequirslicenses,permitsandapprovals ,
. from a number of State and federal regulatory agencies in addition to the NRC. Accordingly, the Commission has L consistently taken the position that it will not defer its s
proceedings until" other regulatory proceedings have been completed or other approvals obtained, just because an l.
intervenor speculates that such permits or approvals will
.. nbt utbimately be obtained.b As the Appeal Board stated g,s s in Tyrohe "The requirementsf,of State law are beyond our
, ~ ~ ,.
ken; .such matters are for the State regulatory
't
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(Footnote Continue'd) ' >
L
/
%3 1 # Energy (1977).
Center;, Unite 2 and 3), ALAB-376, 5 NRC 426, 428 l 21 / southern California Edison company (san onofre Nuclear
. Generating 8tation, Units 2 and. 3), ALAB-171, 7 AEC 37,
~.- 39 (1974). See a'13 o C Illuminating l
Co,ucany...(Perry Nu2ea, r'Power leveland Electric Plant, Units 1 and 2),
.' ALAS-443,.'6 NRC 741, 748__(1977).
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commission."2_2/ Accordingly, the status of the proceeding before the PUC does not require the NRC to delay or recon-sider matters on which it has already closed its record. b III. Discussion in 1972 of a Decision Not to Channelize the East Branch Perkiomen Creek Raises No New Issue In support of its asaertion that erosion will occur in the East Branch Perkiomen Creek, Del-Aware sites a memoran-dum of a meeting among Applicant's employees and consultants on December 12, 1972 concerning potential environmental impacts in the East Branch. Contrary to Del-Aware's charac-terization of the Memorandum, it clearly states the conclu-sion of Applicant's representative and its technical consul-tant that no erosion would result from the maximum discharge even without channelization. The memorandum states:
Dave Marano stated that Dr. Rainey had felt that no stream channel work of any type would be the best solution for the East Branch ecological problem and questioned why a channel should be installed. The existing stream channel can handle the peak pumping rate (65 cis) at a depth of two feet and, in general, should be within the banks of
-22/ Northern States Power Company (Tyrone Energy Park, Unit 1), ALAD-464, 7 NRC 372, 375 (1978).
~
23/ As stated at note 16, supra, the PUC proceeding related to the Bradshaw Reservoir pumphouse has been in progress since mid-1982 The parties have routinely advised the Appeal Board of developments regarding the PUC investigation into Limerick Unit 2 initiated by Order dated August 27, 1982. Neither of these matters thorefore constitutes new information supportive of late-flied contentions for the reasons discussed in part I, supra.
14 -
g-
- the stream which are approximately 3-6 feet high. '. . . Probably the only reason for-the improved channel would be to firmly ~ establish P.E.'s ' liability with regard- to passage of the peak pumping rates; without such a channel, it is possible that P.E. might be blamed for any damage that was incurred as a result of a flood on a stream. . . .
At this point, Dr. Rainey. reiterated
. .his position that no channel work should
_ - be ' performed" on' the East Branch. He pbinted ,out that stream channels are
% formed 'during. times of flood and that
^
during the risingustage of the flood
, most of the erosion takes. place, where-as, on the following stage, the water becomes relatively clear except for colloidal materials. He felt that the existing channel, which had been formed by the past flood flows, should not be materially affected by the peak pumping rate which is much less than the usual flood. In addition, channel work would destroy the ecology of that part of the stream and the resulting erosion from this work would be - expected to deposit silt in the stream' as far down as Sellersville. . . . SlH. Bourquard was of the opinion, based.upon observations of the West Branch of Codorus Creek and York County, at 65 cfsswould erode a relatively stable channel into the existing stream bed below the point of discharge but that such erosion would be limited in amount and occur over a period of years. M/
It is only after this discussion that the memorandum states the group's consensus that channelization would have 24/ Memorandum on meeting of December 12, 1972 entitled
" Environmental Impact Statement of Philadelphia
' Electric on the Limerick Nuclear Power Plant" at 2-4.
In the copy of the memorandum provided by Del-Aware,.it u is not possible .to determine. whether emphasized 1 (Footnote Continued)
+
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a far greater -adverse impact on stream ecology than any erosion expected from the increased flows. But as the group previously concluded, no further erosion or very little erosion was anticipated. This is consistent with the discussion' in the Environmental Report at Section 5.1.3.3 and the Final Environmental Statement at Section 5.5.2.3.
that some minimal erosion might occur in the upper reaches of the East Branch during an initial period of stream channel stabilization. b Del-Aware's assertions therefore fail to satisfy the requirements for reopening and admission of late-filed contentions for the same reasons discussed in Part I, supra.
(Footnote Continued) portions of the text were underlined by the memorandum writer.
25/ Inasmuch as the matters discussed in the memora ium were previously known to Del-Aware in the publicly available record, the memorandum could not independently support a new, late-filed contention.
Thus, the memorandum relied upon by Del-Aware would, at most, have evidentiary value. As the Commission stated in Catawba "an intervenor in an NRC proceeding must be taken as having accepted the obligation of uncovering information in publicly available documentary material." Duke Power Company (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1048 (1983). Or, as the Appeal Board likewise stated below in Catawba, "an intervention petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention." Catawba, supra, ALAB-687, 16 ;
NRC 460, 468 (1982), rev'd on other grounds, CLI-83-19, l 17 NRC 1041 (1983). The Commission subsequently l reaffirmed its holding in Catawba. Public Service (Footnote Continued)
', l l
4 IV. Other Documents Cited by Del-Aware l Do Not Support Schuylkill River Alternatives for Limerick Unit 1 Del-Aware asserts that certain memoranda from Appli-cant's files show that Schuylkill River alternatives would provide sufficient supplementary cooling water for one unit at Limerick. Initially, Del-Aware correctly states that the Licensing Board rejected its proposed contention that a supplementary cooling water source on the Schuylkill would suffice for one unit. The basis for the Board's repeated denial of this contention was most recently stated in its Memorandum and Order issued April 19, 1984 as follows:
Much of Del-Aware's current spate of motions is grounded on its belief that Limerick Unit 2's present status of being deferred due to action by the Pennsylvania PUC is tantamount to cancellation of that unit. But again, Del-Aware ignores the fact that this is an old point previously raised by Del-Aware and disposed of by us. In prior rulings, we assumed arguendo that only Unit 1 would 'be operated. We found, similar to Judge Kranzel's finding, that "the amount of time that cooling water would be unavailable without the Point Pleasant diversion of Delaware River water, given the appli-cable DRBC conditions and water allo-cations, would not vary significantly between operation of two Limerick units and, arquendo, operation of just Unit 1." See our March 8, 1983 order, supra at 6- Q /
(Footnote Continued)
Company of New Ham'? shire, (Seabrook Station, Units 1 and 2) , CLI-83-23, .8 NRC 311 (1983).
26/ Limerick, supra, " Memorandum and Order Denying (Footnote Continued)
'l i
In the Memorandum and Order dated March 8, 1983 to which it referred, the Licensing Board recounted its earlier ruling "that at the operating license stage we would not consider totally different alternative methods of cooling, consideration of which would necessarily call into question the previously found overall acceptability of the proposed method of cooling, in the absence of,a determination of significantly increased environmental impacts of the Point Pleasant diversion river follower system." b As applied to Del-Aware's proposed contention that Schuylkill River alternatives to Point Pleasant be considered, the Board held:
Given our ruling that the alleged alternative of depending on the Schuylkill River (and Perkiomen Creek) for cooling Limerick without use of the Point Pleasant diversion is not made feasible even if Unit 2 is deleted, we did not further have to consider whether there is a basis in support of a con-tention that increased use of the Schuylkill could have significantly smaller environmental impacts of opera-tion than the proposed Point Pleasant diversion river follower system. (Order of January 24, 1983, at p. 9). However, consistent with our decision above on the prerequisite set forth in the SPCO for examining different alternative supplementary cooling methods, before we (Footnote Continued)
Del-Aware's Motions to Reopen the Record to Admit Late-filed Contentions V-30, V-31, V-32, V-33, V-35 and V-36 (April 19, 1984) (slip op, at 7-8).
-27/ Limerick, supra, " Memorandum and Order -
Denying Petitions of Del-Aware for Reconsideration and to Admit a Late Contention" (March 8, 1983) (slip op, at 5).
3
.would admit the contention. we would first 'have had to find that the alleged environmental impacts of the proposed system were significant. As'noted, we have found to the contrary. According-ly, now with the benefit of the P.I.D. ,
even if increased.use of the Schuylkill were feasible despite DRBC's determina-tions of water allocation ~, there appears to be no basis for Del-Aware to contend that the. alternative supplementary cooling' water system of increased use of the Schuylkill River would have signifi-cantly- smaller environmental impacts than operation of the proposed sys-tem.28/
Thus, whether - or not Schuylkill River alternatives are physically feasible for one unit at Limerick is irrelevant to the Board's rationale in denying that contention. -
Moreover, the memoranda cited by Del-Aware do not, as it asserts, establish any Schuylkill alternative sufficient 1 to meet the supplementary cooling water needs of even one unit. The first memorandum (Exhibit C) states: "
Prelimi-nary calculations indicate that the entire water supply 4-(8,000 a-f) storage can barely meet the needs of one unit at Limerick under average conditions." (Emphasis added.) As 28/ Id. at 7. The Board also noted "that to a large extent l '"
Del-Aware appears to be reiterating its old arguments 4
that- the DRBC should either change its limitations governing ' withdrawal of Schuylkill River water for Limerick, or its limitations on additional Schuylkill River water storage available for Limerick, or its determination, taking into account available water allocations on the Schuylkill, that ' Delaware River water should be allocated for - Limerick. We reiterate that such allocation decisions made by the DRBC are not reviewable by us." M. at 8.
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l to . the Blue ~ Marsh Dam and Reservoir, the memorandum states that-" Blue Marsh-is an acceptable alternative - water ' supply on a temporary - basis for one unit'because it is built and presently under-utilized." (Emphasis added.)
-The other memorandum (Exhibit - D) is consistent with this conclusion, stating that the average consumptive water need for even one unit at Limerick (27 cfs) for the average number of days each year that supplementary cooling water is needed would not be - available from Blue. Marsh because it would draw down the reservoir to levels.not permitted by the U.S. Army Corps of Engineers as operator of the reservoir.
As with other matters raised, Del-Aware has failed to demonstrate that its arguments about Schuylkill alternatives satisfies the requirements for reopening and late con-tentions, or that the specific documents upon which it relies provide any information previously unavailable on the 7 public record. To the contrary, the rules regarding _the availability of water from Blue. Marsh have long been estab-1 lished. . Information . relating to these rules and alleged Schuylkill alternatives has long been available to Del-Aware. Nothing alleged by Del-Aware meets the standards for late-filed contentions or reopening as dis-
, cussed in Part I, supra.
2_9/ ' See, e. . , Adjudication of the Environmental Hearing Board a p op. at 40-47, 147-149) (June 18,.1984).
1
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V. The Staff Has Not Engaged.
in any Ex Parte Communications Del-Aware-asserts, on the basis of handwritten notes of a meeting between the NRC Staff and Applicant on April 17, 1984 (Exhibit E), that the Staff has engaged in "an ex parte staff contact with PECo." Del-Aware claims that this informal meeting "obviously reflected a [ sic] improper contact with PECo, concealed from intervenors and -the public, and contrary to the staff's public representations, and to 10 C.F.R. S27.80 [ sic]."E!
This assertion is baseless. The Commission's rules against ex parte communications under Part 2 apply to improper contacts with decision-making tribunals, not to f
contacts, informal or otherwise, between an applicant and the NRC Staff, which is also a party. The Commission's boards have consistently ruled that the NRC Staff may confer off the record with any party to a proceeding.EI Indeed, S2.102(a) expressly states: "The staff may request any one party to the proceeding to confer with the staff informal-ly."
+
-30/ Del-Aware's Motion to Set Aside Based on New Evidence at 3.
31/ See e.g., Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2) ,
ALAB-493, 8 NRC 253, 269 (1978); Northeast Nuclear Energy Company (Montague Nuclear Power Station, Units 1 and 2), LBP-75-19, 1 NRC 436, 437 (1975).
Substantively, the notes of the meeting simply bow
'- that' Applicant was briefing the Staff to update it on the status of the Point Pleasant project. In content,-the notes are wholly unexceptional. Nothing in the notes reflects improper conduct or anything else which would be a basis for reopening the' PID or admitting new contentions. It is difficult to perceive what relief, if any, ' Del-Aware is seeking with respect to this matter.
VI. It is Not the Obligation of Boards or the Staff to Develop or Require Submission of Potential Alternatives The remainder of Del-Aware's motion requests the Appeal Board to order the Licensing Board and/or NRC Staff to identify and evaluate alternatives to the Point Pleasant project for supplementary cooling water for Limerick. As is clear from its answers to Del-Aware's succession of pe-titions, Applicant disagrees with Del-Aware's allegations regarding the viability of the Point Pleasant project. The Licensing Board has repeatedly rejected such assertions in the several post-hearing orders discussed above.EI
-32/ The Staff has likewise rejected these arguments in 1 rulings denying Del-Aware 's petitions under 10 C.F.R. I S2.206. In his April 25, 1984 decision, the Director of Nuclear Reactor Regulation expressly rejected Del-Aware's claim that actions by Bucks County seeking to terminate the project require immediate consideration of other alternatives. The Director stated that current information " indicates no lessening of the resolve of PECO to go forward" with the project, (Footnote Continued) i
.22 -
In questioning the. viability of the project, Del-Aware seeks to litigate the very contention consistently denied by tic Licensing Board. The instant request to reopen there-fore constitutes an impermissible, late-filed. appeal on the issue. of the project's . viability. Moreover, this _same argument ' was also the basis of Del-Aware's request to set aside the PID it previously filed by letter dated May 15, 1984. In the interest of brevity, Applicant respectively-refers the Appeal Board to its prior discussion of those issues as incorporated herein. b (Footnote Continued) and noted that "PECO has availed itself of its legal remedies to ensure that the [ Point Pleasant Diversion]
Project will go forward as currently configured." The Director concluded that "PECO's current actions appear clearly directed at insuring that the [ Point Pleasant Diversion] Project goes forward." Limerick, supra,
" Director's Decision under 10 CFR S2.206" (April 25, 1984) (slip op. at 5).
The same position was taken by the Executive Director for Operations in responding on behalf of Chairman Palladino by letter dated April 2, 1984 to Representative Kostmayer (copy attached) as follows:
" Absent a specific proposal from PECO describing such a change the NRC staff considers it to be premature and no more than speculation to comment on the nature or timing of further required reviews or the need for further hearings." Letter from William J. Dircks, Executive Director for Operations, to the Honorable Peter H. Kostmayer at 3 (April 2, 1984).
The Director of Nuclear Reactor Regulation recently reiterated the same position in a letter to Del-Aware's counsel dated June 29, 1984 (copy attached) , where he declined to take further actions requested by Del-Aware regarding project alternatives.
l33/ See Applicant's Answer to Request by Del-Aware (Footnote Continued)
I
_ - . . . _ _ ~ _ _ _ _ _ _ . - . , -
c, Even on the merits, Del-Aware's request for relief has no legal basis. Contrary to Del-Aware's assertion, nothing in 10 C.F.R. Part 2, Appendix A makes it " incumbent upon the Commission and its staff" to prepare alternatives to be substituted for the- Point Pleasant project. The Com-mission's . regulations under 10 C.F.R. 52.101 make it the responsibility of the applicant for.a license to prepare and submit its application as prescribed by the applicable rules and regulations.
While the Commission's regulations under 10 C.F.R. Part 51 require full consideration of environmental impacts attributable to any supplemental cooling water supply described in the application, nothing in Part 2 or Part 51 authorizes the Staff or any adjudicatory board to select or require the applicant to select sources of cooling water beyond those in the application. W (Footnote Continued)
Unlimited, Inc. to Set Aside the Partial Initial Decision on Supplementary Cooling Water System Contentions (May 30, 1984). The NRC Staff likewise opposed reopening and took the position that Del-Aware had failed to demonstrate that the Point Pleasant project is no longer viable. See NRC Staff Response to Del-Aware's Motion to Set Aside the Partial Initial Decision on the Environmental Effects of the Supplementary Cooling Water System (SCWS) (June 4, 1984).
-34/ See generally 10 C.F.R. 5S51.45 and 51.50. Part 51 was recently revised by the Commission as the result of rulemaking, but the essential elements of evaluating environmental impacts remain unchanged. See 49 Fed.
Reg. 9353 (March 12, 1984); 49 Fed. Reg. 24512 (June 14, 1984).
As'the Licensing Board has held time and again, "if the Applicant were to materially change its proposed supple-mental cooling water system because the Point Pleasant diversion is not ' permitted - to operate by other opposing bodies, the NRC would have to consider the effect of any such , changes on the previous assessment of environmental impacts."El Otherwise, there is no basis for any action by the NRC, including a reopening of the PID or admission of new contentions.EI - Accordingly, no relief on Del-Aware 's allegations is warranted.
Conclusion For the reasons discussed more fully above, Del-Aware has not met the Commission's requirements for reopening a closed record and admitting new, late-filed contentions. In fact, Del-Aware seeks to raise old matters which were decided adversely to it by the Licensing Board, which could have been submitted to the Licensing Board for decision on a M/ Limerick, supra, " Memorandum and Order Denying Del-Aware's Motions to Reopen the Record to Admit Late-filed Contentions V-30, V-31, V-32, V-33, V-35 and V-36" (April 19, 1984) (slip op, at 9).
36/ Del-Aware mistakenly relies upon Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir.
1972). That decision merely states the customary rule that reasonable alternatives must be considered. It does not require pre-selection of other alternatives once one alternative has been chosen, simply based upon the speculation of opponents of the project regarding its viability.
l l
y.- ._.- - - , . . - . ,_.-e. m_ y e . w m-
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l timely basis. Del-Aware's request to reopen the PID and for other relief-should therefore be denied.
Respectfully submitted, CONNER & WETTERHAHN, P.C.
(f Troy . onner, Jr.
7%. ,.
Robert M. Rader Counsel for Philadelphia Electric Company August 21, 1984 i
-v, ,- , , - - - , ,, , , - - - - , , ,7-g- , w -
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. UNITED STATES OF AMERICA COCKETED NUCLEAR REGULATORY COMMISSION U:;g In the Matter of ) '84 AG0 23 All g5
)
Philadelphia ElectricLCompany ) Docket Nos. 50-352- _
) 50E353Mhf y / "
(Limerick Generating Station, ) SRANch Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Answer to Motion by Del-Aware Unlimited, Inc. to Set Aside the Partial Initial Decision Based on New Evidence," _ dated August 21, 1984 in the captioned matter, have been served upon the
+
following by deposit in the United States' mail this 21st day of August, 1984:
-
- Christine N. Kohl, Esq. Dr. Richard F. Cole Chairman Atomic Safety and Atomic Safety and Licensing Licensing Board 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 Washington, D.C. 20555 Atomic Safety and Licensing Dr. Reginald L. Gotchy Appeal Panel Atomic Safety and Licensing- U.S. Nuclear Regulatory Appeal Board . Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Docketing and Service Section i Office of the Secretary l 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 Hand Delivery h
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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 Legal Director EU.S. Nuclear Regulatory Robert J. Sugarman, Esq.
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 ATTN: Edward G. Bauer, Jr. Harrisburg, PA 17120 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.
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 i King of Prussia, PA 19406 i l
b
'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
) nA mA Robert M. Raddr
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' SUGARM AN, DENWORTH & HELLEGERS ATTORN EYS AT L AW ROBERT J. SUGARMAN ; setN rLoom. C ENTER Pt. AZA - [ ,, g JOANN E R. DENwCRTH 101 NORTH mROAD STREET 1201 PENNSYLVANIA AvCNUC. N.W.
JOHN F. HELLEGERS WA$MINGpW. D. C. 20Q04 PHILADELPHIA, PENNSYLVANIA 19107 M]),37. so ROSIN T. LOCKE (2153751 9733 keb..
" b5 M' RAYMOND CLU ROSCRT sa+w-. .
July 13, 1984 Mr. Harold Denton Director
- Office of Nuclear. Reactor Regulation U.S. Nuclear Regulatory Commission
- _ Washington, DC 20555
Dear Mr. Denton:
In light of your response to my letter of May 23, 1984,-
I would like to have you treat that letter and this letter as a new petition under 10 CFR 2.206. Accordingly, I request that you
-consider my May 23, 1984 letter, as a 2.206 petition, which this letter will supplement.
On June 18, 1984, the Pennsylvania Environmental Hear-ing Board held that the PECo discharge into the East Branch Perkiomen-Creek would require compliance with water quality standards. Bucks County's engineers have determined that this would require a sewage treatment plant in order to remove the heavy metals contained in the Delaware River water, and other j pollutants, and that the timeframe to provide such a system would be three to five years.
On June 22, 1984, the Pennsylvania PUC indefinitely postponed a decision on PECo's request for permission to build the Bradshaw Reservoir and pump station, a necessary portion of the proposed diversion, because of the EHB decision.
I Copies of the Environmental Hearing Board decision and the PUC order are enclosed.
On July'b, 1984, the Pennsylvania PUC adopted a resolu- l tion establishing a new investigation into Limerick Unit II, and in that order, required that the Philadelphia Electric Company show cause why the completion of Limerick Nuclear Generating
. Station, Unit II, would be in the public interest. A copy of PUC Motion is enclosed. l This combination of circumstances, along with those previously asserted by Del-AWARE in its previous 2.206 proceed- u
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5 15 - Mr: Harold Denton 2 July 12, 1984 ings (which are ' incorporated as being cumulative to the.present one), require, in.our view _ that the Commission now address the potential for alternatives, and consider the impact on the appli-cant's ability to operate the plant as ' proposed.
In light of the circumstances, you are requested to
' respond to this 2.206 petition as quickly as possible, and.your failure to. respond within' thirty days, will be treated as a
' denial for purposes of appeal.
Sincerely,'{
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Robert J. Sugarman Counsel for Del-AWARE Unlimited, et. al.
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-enclosures E
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. . # *% Ti Eugene J. Bradley, Esq.
a f'Y Wg { NUCLEAR REGULATORY COMMISSION WASHINGTON. D C. 20555 From: ' Nancy Knuth 1= .,, .%* 'px , Je
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... APR 02 SH OX KETED UihRC t
' 84 AGO 23 All:45 Docket flos. 50-352/353 a no 1= std .
LoanimassEV:
SRANCH The Honorable Peter H.-Kostnayer.
United States House of Representatives
' Washington, DC 20515 -
Dear Congressman Kostnayer:
I am. responding' to your letter of February 29, 1984 to Chairman Palladino concerning the supplemental cooling water supplies 'fcr the Linerick Gererating Station now being constructed by the ?biladelphip n ectric ferpany rear Pottstown, Pennsylvania.
With respect to the regulatory requirements of the NRC, there are two aspects of water supplies for the operation of the Limerick Generating Station that are considered in the NRC's review process. One aspect is that of the radiological safety review and concerns the availability of a supply of water to permit the safe shutdown of the reactor in the event of loss of the normal cooling water supply. This requirement is met at the LGS by the provision of an ersite spray pond which does not depend on the supplementary cooling water system. Thus, the supplementary cooling water system is net safety-related anc is not reviewed as part,of the NRC's radiological safety review. Rather,
-the supplemental cooling water supply is needed only to optinize operation of LGS.
A second aspect of the NRC's review of water supplies fer the LGS is the assessment of the environmental impact of operation of the LGS. This review is conducted pursuant to the Plational Environmental Policy Act and in accordance with the Comission's implementing regulations. The results of this review are set forth in a Draft Environmental Statenent, which was issued for public comment. After consideration of public cortrents, the decument is issued as the Final. Environmental Statement. The statement contains tFe staff's assessment of the benefits and costs, both economic and envirormental, of'the project under consideration, as that project is proposed by the applicant. Since the supplementary ecoling water systen does have an inpact upon the' environment, it is included within the applicart's environmental report and was evaluated in the staff's DES published in June *983. Correrts en the DES'have been received and evaluated and the Finai Ervironmental Statenent is currently being prepared.
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-The Honorable Peter H. Kostmayer ,
Your first question related to when PECo wculd reouire supplemental cooling water to replace evaporated cooling water. Since, as discussed above, the supplemental cooling water is not reouired for safety reascns, the NRC has virtually no regulatory requirements relating to the source of cooling water -
or the quantities that would be required at the various stages of normal plant operation for the cooling towers. The applicant's proposal for use of Delaware River water as supplementary cooling water is a derivative of regulatory requirements imposed by the Delaware River Basin Commission on usage of Schuylkill River water. The supplementary ccoling water would not be required for fuel loading. The supplementary cooling dater systen is needed only when DRBC limitations preclude PECo from taking water for consumptive useage from the Schuylkill River. Power production would be possible only part of.the year without the supplemental water.
Question No. ~2 asked for the NRC schedule for milestones relevant to the need for supplemental cooling water. At the present time, the completion of hearings now being held before the NRC's Atomic Safety and Licensing Scard regarding pECc's application for full power crerating licenses is not exoected before January 1985. However, under 10 CFR 50.57(c) an applicant may ccke a motion to the Licensing Board for an operating license authorizing low power testing and further operation short of full power operation. If PECo should make such a request in the future, it is possible that the limited operations sought could be authorized earlier provided the specific findings required by 10 CFR 50.57(c) are made and support such operations. PEC3 has not informed the staff of any plans in regard to 10 CFR 50.57(c). One or the other of the above approaches would be a prerequisite to licensing and subsequent fuel loading, and startup testing prior to power operation. Typically, two to three months elapse from fuel loading until a BWR is ready to operate above 5%
power. Due to the uncertainty on when these events may take place, the staff is unable to provide, at this time, a more precise schedule of the licensirg milestones as they may relate'to the applicant's need for supplemental cooling water.
Question No. 3 asked whether NRC would have any permitting function with respect to replacement supplemental cooling water sources. The NPC does not issue permits with respect to the allocation of water resources. That is within the purview of other governmental agencies including, in this instance.
the Delaware River Basin Commission.
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. .s The Honorable Peter H. Kostmayer -
As noted previously, the NRC's interest in the supplemental cooling water extends to evaluating the environmental impacts of the system as currently proposed by the applicant in the LGS Environmental Report pursuant to NEPA.
Should an alternative to the present supplemental system be proposed by PECo, the staff would have to consider the matter with respect to whether the NRC's ,
environmental impact statement adequately disclosed the costs and benefits of l station operation. Absent a specific proposal from PEco describing such a j change the NRC staff considers it to be premature and no more than speculation j to comment on the nature or timing of further required reviews or the need 1 for further hearings. l Question No. 4 asked whether supplemental cooling' water from an existing reservoir could be made available to PECo.
The allocation of the water of the Delaware River Basin is not under the )
jurisdiction of the NRC and therefore is not affected by the rules of the Commission. Should the Limerick application before the Comission be amended !
to include a supplemental cooling _ water supply from an existing reservoir, I the rules of the NRC would require that this aspect of the amended application be given the customary environmental review prior to the issuance of an operating license for the facility. Again, the NRC staff considers that absent such a specific proposal from the applicant accompanied by a detailed description and supporting schedules, it is premature and no more than speculation to predict the answers to this question.
Question No. 5 asked whether there is any reason to believe that NRC procedures and requirements would delay the operation of Unit 1. The applicant's current estimate of readiness for fuel loading is August 1, 1984. As noted above, an initial decision by the ASLB on the operating license applicati'on is not expected before January 1985. On this basis, there would be a regulatory impact .of about five months. This impact could possibly be reduced by some amount if the applicant were to request and be granted an operating license authorizing less than full power operation pursuant to 10 CFR 50.57(c) as discussed earlier.
I trust that these discussions have been responsive to your concerns. If you have further questions, please contact us.
Sincerely, (SiE H @ @ M I E M William J. Dircks Executive Director for Operations l
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i February 29, 1984 Mr. Nunzio Pallidino, Chairman Nuclear Regulatory Commission Washington, D.C. 20555
Dear Mr. Chairman:
Philadelphia Electric Company (PECo) seeks to obtain supplemental cooling water (to replace evaporated cooling water) for its Limerick Nuclear Plant by way of a diversion from the Delaware River located in my district. The county government is unalterable opposed to the diversion, as am I, and since the county must operate the water supply system, it appears that responsible governmental management calls for consideration of alternatives.
PECo has expressed serious concern regarding delays which might occur in the NRC operating license process in the event supplemental cooling water from Blue Marsh Reservoir is used. This reservoir has been con-structed by the Corps of Engineers pursuant to Congressional authori-zation authorizing it for, among other things, industrial water supply.
I am writing to you in an effort to obtain the Commission's best pos-sible guidance as to the /best way to minimize the time involved in approving a new supplemental water source for PECo, so as not to delay the operation of unit 1.
Would you please advise me, as quickly as possible of the Commission's position on the following questions:
- 1) At what state in the permitting process will PECo require sup-plemental cooling water to replace evaporated cooling water? For ex-ample, will it require supplemental cooling water for fuel load, for 5% testing, or for commercial operation af ter issuance of an operating license? The previous question is meant to address both operating char-acteristics and regulatory requirements imposed by NRC. Also, is there a need for relatively minor amounts of supplemental cooling water at earlier stages? (Water to replace small amounts of evaporated water may be available from sources which would not be able to supply the full amount needed for full operation.) i k i L
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Mr. Nunzio Pallidino-
': February 29, 1984 Page 2 e
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- 2) What is the NRC schedule for the milestones relevant to the I need for supplemental cooling water, in the small and large quanti-ties discussed in answer to question l'. Specifically, please indi-cate the date on which the NRC expects to complete the process which will lead to PECo's need for the major amounts of replacement cooling water on an ongoing basis. If substantial amounts are needed for testing at other interim steps,.please so advise.
- 3) Inasmuch as the supplemental cooling water source systems were '
not the subject-of NRC construction permits, would the NRC have any permitting function with respect to replacement supplemental cooling water sources? If not, would the NRC have any other purpose in review-ing such sources? If so, what would be the nature of such review and assuming that the replacement supplemental cooling water source is an existing reservoir designated for water supply purposes (or for water l quality flow augmentation), what is the Commission's estimate of the time frame involved in making.such review, and what would be the infor-i
' mation required? .How much time would be required to consider the infor-mation once the information is supplied to the Commission. .Would there necessarily be public hearings, and if so, who would conduct them and how long would they take?
- 4) Taking into account the timing and sequencing of the need for the supplemental cooling water, and the NRC's review responsibilities, as described in the previous answers, could the supplemental cooling water from an existing reservoir be made available to PECo if, and as needed prior to the completion of such procedures, under the rules of the NRC?
If so, at what stage could it be made available, and how soon could that occur? ,
- 5) Given the panel forecast of March 1985 for the Licensing Board Rule on an operating license, and given further, that PECo can obtain supplemental cooling water as needed from the Schuylkill River until April, 1985, pursuant to its existing permit, is there any reason to believe that NRC procedures and requirements would delay the operation of PECo at Limerick unit l?
These questions relate to matters which are time-sensitive, and I would therefore appreciate your providing the expedited consideration. If any of the information requested is available at the present time, I would appreciate your supplying that information to my office immediate-ly. I would also appreciate your advising me as to the date on which you would expect to provide a full response.
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Peter H. Kostmayer l PHK/lg
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.e-$ e UNITED STATES NUCLEAR REGULATORY COMMISv.ON M-3 m 3- .E WASHINGTON, D. C. 20555 '
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,LI c0 Docket Nos. 50-352/353 JUN 2 91984 7
'y D3C KETED um L Mr. Robert J. Sugar: nan, Esq. '84 ASO 23 A11 :45
'Sugarman, Denworth & Hellegers 16th Floor, Center Plaza g m.: y w .
101 North Broad Street 0 0 C m.11'i3 ^ Sir Philadelphia, PA 19107 MC"
Dear Mr. Sugarman:
I am in receipt of your letter to me of May 23, 1984. Your letter requests that the Nuclear Regulatory Commission advise the Philadelphia Electric Co.
(PECO) of a need to supplement its pending application for an operating license to provide alternative sources of supplemental cooling water for the Limerick facility. As you are aware, both of PEC0's applications, for a construction permit for the Limerick facility and for an operating license for that facility, described a supplement cooling water system for the Limerick facility for consideration by the Nuclear Regulatory Commission. That supplemental cooling water system was evaluated at the construction permit phase and is currently being evaluated as pa
- of the operating license proceeding. Your letter suggests that the Commission should direct PECO to provide alternatives to the supplemental cooling water system presently under consideration. This is essentially a repetition of the request contained in the " Application of Del-AWARE Unlimited, et al. under Section 2.206" filed by you with the Commission of December 16, 1983, on behalf of Del-AWARE and to which I responded in my " Director's Decision Under 10 CFR 2.206" dated on April 25, 1984.1 In my Decision, I determined that action on the part of NRC would be appropriate to review alternatives to the currently proposed supplemental cooling water system if the current proposal should for some reason fail and if PEC0 should- then identify an alternative proposal to supply supplemental cooling water for the Limerick facility. I noted that any alternative would then have to be reviewed in the same fashion as the original proposal was examined by the agency prior to the issuance of a construction permit. In my Decision, I further noted that PECO's current actions appear clearly directed at insuring completion of the presently proposed supplemental cooling water system and i
-that concerns that the project may not be complete and consequently that !
alternative sources of cooling water may be required for the L!merick facility are thus premature and speculative. On this basis, I declined to commit the agency's resources to examine such questions given their 1 Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), DD-84-13, 1984--NRC(1984) l
l Mr. R:b:rt J. Sugarman -
2'-
speculative nature.2 .There is nothing in your letter which would cause me to reconsider this question. You should be advised that the Commission has declined to review my Decision and, accordingly, that Decision became final agency action on May 21, 1984.
)
With respect to your. request for documents, many staff documents are routinely placed in the Public Document Room and would be available for your review there. Additional document requests may be appropriate in individual adjudicatory proceedings pursuant to 10 CFR Part 2, " Rule of Practice For Domestic Licensing Proceedings" or under the more general provisions of the Freedom of Information Act. See 10 CFR Part 9.
With respect to'your letter of May 23, 1984 directed to Ms. Ann Hodgdon, Esq.,
a copy of which was appended to your letter to me, I note that that letter
- contains a number of characterizations by you of the substance of a briefing given to the Commission on April 24, 1984, by the NRC staff. I do not share your belief that the staff mischaracterized the issues. The staff routinely briefs the Commission in a professional'and objective manner assessing the facts as it sees them. This was done in this instance. I can understand that there may be differences of opinion with respect to the issues at hand.
However, I believe your charges with respect to the presentation of the staff are unfounded.
~
Sincerely, Oneel sigesd by ti. R. Danten Harold R. Denton, Director Office of Nuclear Reactor Regulation cc: See next page 2If PECO changes its plan on sources of cooling water, some delay may l result. However, this is a matter of concern to PECO. Absent a revised submittal, as indicated above, I do not intend to take action.
i . Limerick.
- Mr. Edward G. Bauer, Jr.
Vice President & General ~ Counsel Philadelphia Electric Company
' 2301 Market Street Philadelphia, Pennsylvania 19101 cc: Troy B. Conner, Jr., Esquire Mr. Marvin I'. Lewis Conner and Wetterhahn 6504 Bradford Terrace 1747 Pennsylvania Avenue, N. W. Philadelphia, Pennsylvania 19149 Washington, D. C. 20006 Frank R. Romano, Chairman Zori G. Ferkin Air-a Water Pollution Patrol Assistant Counsel 61 Forest Avenue Governor's Energy Council Ambler, Pennsylvania 19002 P. O. Box 8010 1625 N. Front Street Charles W. Elliott, Esquire Harrisburg, Pennsylvania 17105 Brose & Poswistilo,1101 Bldg.
lith & Northampton Streets Honorable bawrence Coughlin Easton, Pennsylvania 18042 House of Representatives Congress of the United States Phyllis Zitzer, President Washington, D. C. 20515 Limerick Ecology Action P. O. Box 761 Roger B. Reynolds, Jr., Esquire .
Pottstown, Pennsylvania 19464
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324 Swede Street Norristown, Pennsylvania 19401 Mr. Karl Abraham
Public Affairs Officer Frederic M. Wentz Region I County Solicitor U.S. Nuclear Regulatory Connission County of Montgomery 631 Park Avenue Courthouse King of Prussia, PA 19806 Norristown, Pennsylvania 19404 Mr. Suresh Chaudhary Eugene J. Bradley Resident Inspector Philadelphia Electric Company U.S. Nuclear Regulatory Connission Associate General Counsel P. O. Box 47 2301 Market Street Sanatoga, PA 19464 Philadelphia, Pennsylvania 19101 Joseph H. White III Mr. Vincent Boyer 8 North Warner Avenue Senior Vice President Bryn Mawr, PA 19010 Nuclear Operations Philadelphia Electric Company James Wiggins, Sr. R. I .
2301 Market Street U. S. NRC Philadelphia, Pennsylvania 19101 P. O. Box 47 Sanatoga, Pennsylvania 19464 l
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y g Limerick __
Thomas Gerusky, Director Sugarman, Denworth & Hellegers Bureau of Radiation Protection 16 th Floor Center Plaza
-Dept. of Environnectal Resources 101 North Broad Street 5th _ Floor, Fulton Bank Bldg. Philadelphia, Pennsylvania 19106 Third & Locust Streets Harrisburg, Pennsylvania 17120 Angus Love, Esq.
Director, Pennsylvania Emergency 107 East Main Street Management Agency Norristown, Pennsylvania 19401
- Basement, Transportation &
Safety Building Harrisburg, Pennsylvania - 17120 Lawrence Brenner, Esq.
Robert L. Anthony Administrative Judge Friends of the Earth of the Atomic Safety & Licensing Board Delaware Valley U.S. Nuclear Regulatory Commission 103 Vernon Lane, Box 186 Washington, DC 20555 Moylan, Pennsylvania 19065 Martha W. Bush, Esq.
Dr. Peter A. Morris Administra tive . J udge Deputy City Solicitor Atomic Safety & L* censing Board Municipal Services Bldg. U.S. Nuclear Regulatory Commission 15th and JFK Blvd. ,,_ Washington, DC 20555 Philadelphia, PA 19107 David Wersan, Esq. Dr. Richard F. Cole Assistant Consumer Advocate Administrative Judge Office of Consumer Advocate Atomic Safety & Licensing Board 1425 Strawberry Square U.S. Nuclear Regulatory Commission Harrisburg, Pennsylvania 17120 Washington, D. C. 20555 Steven P. Hershey, Esq. Mr. J . T. Robb, N2-1 Community Legal Services, Inc. Philadelphia Electric Company Law Center North Central - Bevry Bldg. 2301 Market Street 3701 North Broad Street Philadelphia, Pennsylvania 19101 Philadelphia, Pennsylvania 19140 Mr. Spence W. Perry, Esq.
Jacqueline I. Ruttenberg, Esq. Associate General Counsel The Keystone Alliance Federal Emergency Management Agency 3700 Chestnut Street Room 840 Philadelphia, Pennsylvania 19104 500 C St. , S.W.
Washington, D. C. 20472 Timothy R. S. Campbell, Director Department of Emergency Services 14 East Biddle Street
-West Chester, Pennsylvania 19380 l
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Lfinerick', Pennsylvania 19468
'N' S. Environmental Protection Agency.
ATTN:. EIS Coordinator. -
' Region:-III Offi'cs., .: '
Curtis liutiding (Sixth Floor) 6th and Walnut 4treets Philadelphia,-P.ennsylvania 19106 Governor's OfffTe of State Planning and Development ATTN: Coordinator, Pennsylvania State Clearinghouse P. O. Box 1323
'Harrisburg,'Pchnsylvania 17102 .
Department of Environmental Resourcis
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ATTN: Director, Office of Radiological Health P. O. Box 2063 ,
Harrisburg, Pennsylvania 17105 e
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