ML20101K423

Brief Supporting 841126 Appeal of Aslab 841108 Memorandum & Order Rejecting Intervenor Contentions V-14 & V-16 Re Effect of Point Pleasant Diversion on Delaware River & Effect of Pumping Station on Historic District.W/Certificate of Svc

ML20101K423
Person / Time
Site:	Limerick
Issue date:	12/26/1984
From:	Sugarman R DEL-AWARE UNLIMITED, INC., SUGARMAN & ASSOCIATES
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#484-849 OL, NUDOCS 8412310354
Download: ML20101K423 (10)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION @fQE3 vahnu ATOMIC SAFETY AND LICENSING APPEAL BOARD

' In the. Matter of  :

'N !23 Philadelphia Electric Company Docket No. S'UTT6.220Lca y,.,p'

SD3'5'3'-OIJEe ye, '

' " " U' (Limerick Generating Station,  :

Units I and II)  :

APPELLANT'S BRIEF IN SUPPORT OF APPEAL I. INTRODUCTION In its Decision of September 26, 1984 (ALAB-785), the Appeal Board remanded to the Licensing Board the latter's disallowance of two Del-Aware proposed contentions in the Limerick proceeding. Those contentions (V-14 and V-16) concerned the effect of the Point Pleasant Diversion (PPD) on salinity' intrusion in the Delaware River, and the effect of the Point Pleasant Pumping Station and adjacent facilities on the integrity of the Point Pleasant Historic District. For reasons set forth in ALAB-78 5 at pp. 2 6-3 3 and 42-45, the Appeal Board found that the Licensing Board erred in rejecting those contentions, and ordered it to entertain revised contentions, subject to their conformance to certain general guidelines about specificity and relevance. Pursuant to this ruling, Del-Aware on October 19, 1984, submitted revised contentions on both issues. In a

" Memorandum and Order" dated November 8, 1984, the Licensing Board again rejected both contentions, asserting that it did so in reliance on the Appeal Board s' ALAB- 87 5 requirements about the necessary " scope" and " specificity" of those contentions. On 0412310354 841226 PDR ADOCK 05000352 1 o PDR

November 26, 1984, Del-Aware served notice of its appeal from the latter action to the Appeal Board. This brief is submitted in support of that appeal.

II. ARGUMENT The Licensing Board's general assertion that the .

revised Del-Aware contentions are " pleaded without adequate bases and specificity," is premised on a reading of ALAB-785 that is misconstrued in favor of its own already-expressed viewa as contained in the remanded decision themselves.

A. Salinity The Licensing Board argues that the Appeal Board " ruled l

that a resubmitted V-16 would have to be tied to changes or new information that had come since the issuance of the construction permit for Limerick (emphasis added.). This inaccurate paraphrasation of the Appeal Board's actual language on the l

subject (that the revised contentions should be " based on the staff's now issued final environmental statement (FES) ," evokes images of a massive array of presently uncontroverted data inimical to Del-Aware's case, and amounts to an expansion of the dictum that Del-Aware would "have a heavy burden of specifying why any NRC reliance on analysis by DRBC... was improper" [ quoted in ALAB-785 at p. 32] from the proofs stage to the pleading stage. The carrying of such a burden is precisely the purpose of j

the litigation (rather than the assertion) of contentions. The

)

relevant regulations (at 10 CFR g2.751b) only demand " reasonable specificity" for the admission of contentions.

Similarly, the Licensing Board misconstrues the guidance provided by ALAB-785 when it asserts that the Appeal 2

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. ~. l Board "noted that the Staf f was permitted to rely on the data and inferences drawn by the ... (DRBC) on this issue (emphasis a ided. l l

Reference to the actual language.of ALAB-785 shows the ., by context and by emphasis, the Appeal Board couched this

" permission" in a conditional manner. It went on to no e that  ;

"the Commission need not slavishly defer to the DRBC's f i.1 dings or its conclusions about water quality (emphasis add ( d)," and noted that the DRBC's principal expertise related to que s!: ions of 4

water supply and allocation, rather than quality. [ ALAS-785]. In f act, in finding that the Licensing Board erred legt 11y in dis-

allowing Contention V-16 in the first place, the .ppeal Board implicitly raised the issue of the duty of ot mr agencies i-(including the NRC) to substitute their own .mviron m en ta l conclusions, when appropriate, for those of the ORBC, provided f that the effects of those conclusions fell witFM the envelope l comprised by DRBC's " permissive, not mandad cry" allocation decisions. In this context, it is patently unre u onable to expect i intervenors, in effect, to litigate the rotentially subtle distinctions between allowable " reliance" and " slavish deference" l

in the pleadings themselves. Again, the "rearonable specificity" standard set forth at 10 CFR g 2.751b should prevail.

This discussion defines the relevant questf3n properly as one of whether or not Del-Aware's revised contentions meet that standard. Reference to the plain language of the revised contention V-16, and, more importantly, to that of the FES itself, shows convincingly that the salinity contention does i

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4 indeed meet 'that standard.1/ .The Board apparently objects to the l subjective character of the contention, i.e. its assertion that

" contrary" - to the D RDC.'s conclusion, the PPD will adversely l

affect Delaware salinity 1~e v e l s , or that the NRC Staff's

i. i

" reliance" on those findings was " inappropriate". .

2 The minimal attention accorded to the salinity issue in i >

the FES itself is insuf ficient to justify (or even to permit) a more substantive response than a- simple contradiction. Indeed,.  ;

j the Staff's bare assertion in the FES (at p. 9-21; DOI-12") that I

it " adopts" the DRBC response on the issue, without elaboration

! or argument, so compellingly suggests " slavish deference," as opposed to allowable " reliance," as to render argument on the matter largely redundant. In f act, the Staff's inattention to  !

L the substantive importance of the salinity issue, as suggested by its citation to the purported " response" found on "page 29 of Mr.

i

, Hansler's letter (Appendix "O")," (wherein is found only the I preamble to a discussion of " Salinity over seed-oyster beds," a sub-issue of the salinity question) should embarrass the Staff, and dissuade the Licensing Board from disparaging Del-Aware's -

j revised contention on the grounds of non-specificity.

I The Licensing Board also purports to find implicit in

. ALAB-785 a requirement for " nexus" between the revised contention itself and the statement of its basis, and to find this undefined

. quality absent-in Del-Aware V-16. It also objects to. Del-AWARE's 1/ The dissolved oxygen issue was pending before this Board on

_ reconsideration when the Contention deadline was about to run; hence its inclusion. Although the denial was dated earlier, it

! was received later.

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reference to documents which are "not in the record," (a record that was defined and circumscribed by its own since-remanded decisions limiting the scope of the proceeding), but does not explain how Del-Aware might have met with its simultaneous demand that it must deal with "new information" in the absence of such .

reference. The purpose of the hearings which are sought by these revised contentions is precisely to place this evidence into the record, which could not have been done prior to the admission of these contentions.

In summary, the Licensing Board has construed the intent of ALAB-785 in a manner that is selectively supportive of its own previously expressed disinclination to preside over the i substantive ajudication of the salinity issue. The heaviest

" burden" borne at this point in this proceeding is borne by the l Licensing Board itself, in avoiding the apparently clear meaning i-of the Appeal Board's unambiguous conclusion that " Del-Aware's original contention V-16 should have been admitted initially (emphasis added) ." (ALAB-785 at 32 n70).

B. POINT PLEASANT HISTORIC DISTRICT As with the salinity issue, it is difficult to compre-hend what degree of " specificity" the Licensing Board can have thought requisite from an intervenor questioning the sufficiency of a perfunctory, one paragraph treatment, such as that which the NRC Staff accorded the issue of " Historic and Archeologic Impacts," (FES, Section 5.7 at p. 5-36). Indeed, neither that paragraph nor Appendix "F" even acknowledge the existence of any such entity as the " Point Pleasant Historic District," which was declared eligible for National Register status in 1981. As such,

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I the Licensing Board's characterization of the Staf f's treatment of this subject in the FES as " analysis" can at best be described as charitable.

As with the salinity question, the Licensing Board

. avails itself selectively of the Appeal Board's authorization to the staf f to " properly rely" on the historical impact findings of other agencies in reaching its own conclusions. It omits to observe, however, that in the cited footnote in ALAB-785 (note 110 at pp. 45-46) this Board referred the reader back to its parallel discussion of the salinity issue, and thereby presumably incorporated the critical distinction made there between allowable " reliance" and " slavish deference." The issue at hand in this instance is not one of mere reliance, but rather one of proper reliance. Del-Aware submits that its revised contention V-14 is reasonably specific in showing the insufficiency of the NRC's reliance on the 1982 " Memorandum of Agreement" between the-Corps of Engineers, the Pennsylvania SHPO, and the Advisory.

Council on Historic Preservation.

As revised contention V-14 clearly and concisely sets forth, the historical review process culminating in the signing of the " Memorandum of Agreement," to which the Staf f's FES deferred without elaboration or comment, considered only selective aspects of the full complex of historical resources which comprise the National Register-eligible Point Pleasant Historic District. Like the FES, the " Memorandum of Agreement" takes no explicit cognizance of the fact that the proposed project will impact on a comprehensive complex of resources 6

comprising a " historic d i s tr ic t ," rather than a cluster of discrete objects or entities. Thus it addresses the Pennsylvania Canal and potential subsurface (archeological) resources, but ignores such integral elements of the district as'its basic setting and visual character (its " natural hillside frame,"), the generally wooded character of the river bank (c.f. " intrusions of cleared areas,") and the intrusion of specif.ic non-conforming facilities and/or apparatus integral to the proposed project

(" parking lots," " transformer pads," "possible wa l l s ,") in or adjacent to the district. Any or all of these elements, which Del-Aware specifically identified in its revised contention V-14, have adverse impact and/or mitigation implications different from those contemplated in the " Memorandum of Agreement," and the Staff FES " analysis" in reliance on that document.

C.

SUMMARY

The Licensing Board, in its Special Prehearing Conference Order, dated June 1,1984, acknowledged that its own treatment of the issue of allo.wable reliance contained therein "provides only general guidance (emphasis added)". Del-Aware hereby submits that neither the Licensing Board's own subsequent

" Memorandum and Order (Concerning Objections to June 1, 1982 Special Prehearing Conference Order"), dated July 14, 1982, nor ALAB-785, significantly expands the specificity of that guidance.

To the maximum extent sustainable by the contents of the documents to which it was required to respond, Del-Aware has identified, in the form of its revised contentions, legitimate issues which have not been adequately addressed by either the NRC Staff or the "other agencies" on whose judgements it has 7

purported to: rely. It has not attempted to argue the detailed merits of those contentions in what would necessarily be the vacuum of its brief statements of the " bases" on which they are formulated. The-proper forum for such argument'is in the litigation of those contentions upon their admission. For the Board to use its and the Appeal Board's " general. guidance" to arbitrarily exclude the revised contentions on the grounds of non-specificity would be to leave the record of this proceeding essentially incomplete. Far f rom Del-Aware expecting, as the Licensing Board asserts, the Board to "draf t acceptable revisions of the contentions", it appears that the Board expects Del-Aware, in effect, to litigate those contentions as a precondition to their admission. The Appeal Board should reject the latter course, order the admission of Del-Aware's revised contentions V-14 and V-16, and direct that they be heard and ajudicated.

Respectfully submitted, ROBERT J. SUGARMAN Counsel for Intervenor, Del-AWARE Unlimited, Inc.

Of Counsel Sugarman, Denworth & Hellegers 16th Floor, Center Plaza 101 North Broad Street

. Philadelphia, PA 19107 Dated: December 26, 1984 p32.rjs/sp i

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CERTIFICATE OF SERVICE I hereby certify that I have served a copy o[ik$h[ fore-going APPELLANT'S BRIEF IN SUPPORT OF APPEAL by mat in a copy of the same to the following persons this 26th day of D6cem e 1 h Christine N. G4+

Kohl,Esq.,khh(z$NXhcq$aifl[En l

Administrative Judge ,

U.S. Nuclear Regulatory Commission Washington, DC 20555 Gary Edles e Esquire Administrative Judge U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Reginald L. Gotchy Administrative Judge U.S. Nuclear Regulatory Commission Washington, DC 20555 Ann Hodgdon, Esquire Benjamin H. Vogler, Esquire U.S. Nuclear Regulatory Commission Washington, DC 20555 Troy B. Conner, Jr., Esquire Conner and Wetterhahn 1747 Pennsylvania Avenue Washington, DC -20006 Edward G. Bauer, Esquire Vice President & General Counsel Philadelphia Electric Company 2301 Market Street Philadelphia, PA 19101 Secretary U.S. Nuclear Regulatory Commission Attn: Chief, Docketing & Service Branch Washington, DC 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555 Charles W. Elliott, Esquire Brose and Pswistilo 1101 Building lith & Northampton Streets Easton, PA 18042

Martha W. Bush, Esquire Kathryn S. Lewis, Esquire-1500 Municipal Service. Building 15th and J.F. Kennedy Boulevard Philadelphia, PA 19107 John E. Flaherty, Jr., Esquire Fred T. Magaziner, Esquire Lois'Reznick, Esquire .

3400 Center Square West 1500 Market Street Philadelphia, PA 19102 Jay M. Gutierrez, Esquire U.S. Nuclear Regulatory Commission Region I 631 Park Avenue King of Prussia, PA 19406

'l ROBERT J. SUGAR $AN Dated: December 26, 1984 1

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