ML20106C825

Opposition to Del-Aware 841010 Petition for Commission Review of ALAB-785.Certificate of Svc Encl

ML20106C825
Person / Time
Site:	Limerick
Issue date:	10/23/1984
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:
References
CON-#484-662 ALAB-785, OL, NUDOCS 8410240338
Download: ML20106C825 (12)

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t -L i D3CYETED USNFC UNITED STATES OF MERICA '84 OCT 23 P2:50 NUCLEAR REGUIRIORY COEISSION Before the Cm mission In the Matter of )

Philadelphia Electric Cmpany Docket No. 50-352 b

) 50-353 O L _.

(Limerick Generating Station, )

Units 1 and 2) )

APPLICANT'S OPICSITION 'IO PETITION FOR REVIEW OF AIAB-785 BY DEL-AWARE UNLIMITED, INC.

Prelindnary Statement on October 10, 1984, intervanor Del-Aware Unlimited, Inc.

(" Del-Aware") petitioned the Ccanission for review of AIAB-785, issued Septanber 26, 1984.1/

Pursuant to 10 C.F.R. 52.786 (b) (3) , Applicant Philadelphia Electric Ccznpany (" Applicant") opposes Del-Aware's request on the grounds _ that, with respect to the alleged errors assigned, Del-Aware has failed to show that AIAB-785 is erroneous with respect to any inportant question of fact, law or Cmmission policy. Del-Aware enumerates several particular areas or findings which it wishes the Ccmnission to review, but does not explain, as required by the rules, why each matter involves an important question which the Ccmnission should consider. Instead, Del-Aware only raises issues which it

-1/ Philadelphia Electric Ccupany (Limerick Generating Station, Units 1 and 2) , AIAB-785, 20 NRC (Septanber 26, 1984). In an Order issued October 10, 1984, the Appeal Board denied Del-Aware's petition for reconsideration of two aspects of AIAB-785.

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abandoned by its . failure to brief them,E or on which the factual record overwhehningly supports the . findings of the Licensing Board and Appeal Board in ' favor of Applicant. Nreover, none of these matters involves any critical issue of importance to the Ccanission.

Argument For convenience, each of Del-Aware's points will be addressed seriatim.

1. The Appeal Board did not, as alleged, fail to consider the decisions of the Pennsylvania Public Utility Ccanission ("PUC") and the Environmental Hearing Board ("EHB") . The Appeal Board stated:

Apart frcan the facts that, in many instances, these rulings are not final and that overall the situation is rather dynamic, we nust decide only the federal questions before us, without being unduly influenced by the decisions of ~ others with differing concerns and responsibilities.3_/

Further, Del-Aware fails to note that it sought to inject these matters into the pr-3tng well after the time for admitting timely con-tentions. Yet, Del-Aware made no showing _ below that it had satisfied the requirements for pleading late contentions and reopening a closed 2/ In its Order denying reconsideration of AIAB-785, the Appeal Board stressed that Del-Aware's briefing left nuch to be desired and in fact found itself " forced to conclude that Del-Aware has been either. duplicitous in its pet 4 tion for reconsideration or shockingly unfamiliar with the content and timing of its own filings over the course of this proceeding." AIAB Order at 3 (October 10, 1984). The Appeal Board also noted its previous caveat in AIAB-785 that Del-Aware must bear the risk of the poor quality of its briefing. Id.

3_/ AIAB-785 at 64.

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g reco'rd to pursue the matters litigated before the two State agencies.O In any event, Del-Aware has failed to show that the NRC could, or

.'should, take any additional action .as a result - of the potential for erosion in the East Branch Perkimen Creek beyond that which has already been inplemented by the two Pennsylvania agencies.

A' separate aspect raised by Del-Aware pertains to an internal memorandum prepared by Applicant's representative at a D + 4 r 12, 1972 meeting with Applicant's consultant. It similarly provides no basis for review.- The memorandum merely states that channelization would have a far greater adverse inpact en stream ecology than any erosion expected frm increased flows. The memorand s stated that no further erosion or very little little erosion, however, was anticipated. 'Ihis conclusion-4 -is consistent with the evaluation in the Environmental Report at Section 5.1.3.3 and the Final Environmental Statement at Section 5.5.2.3 that i-see minimal erosion might occur in the upper reaches of the East Branch during-an initial period of stream channel stabilization.

2. Del-Aware's claims regarding 'disrolved oxygen levels in the Delaware River were abandoned on appeal. In AIAB-785, the Appeal Board 4

remanded for further hearings on salinity inpacts, not dissolved oxygen levels, in the Delaware River. As the Appeal Board rulod in denying 4/ '

Thus, notwithstanding the fact that it litigated many issues before the Pennsylvania PUC and EHB, Del-Aware failed to bring its

. contentions before the NaC in a timely fashion. Rather, it waited

. until those agencies had rendered their respective decisions.

5/ On October 17, 1984, Applicant sought Camission review of this ruling as - well as the ruling permitting further hearinga on potential esthetic inpacts to the Point Pleasant Historic District.

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reconsideration, " Del-Aware's brief and oral argument before us focused on the salinity of the Delaware River and the Licensing Board's ruling that it was precluded by the Delaware River Basin Ccmpact from c.onsider-ingthismatter."5 Del-Aware simply abandoned this issue as it relates to dissolved oxygen levels and has shown no reason why the Appeal Board should have addressed it, nor any reascm why the Ccmnission should itself take up the issue.E There is no allegation of error, for exanple, in the discussion of diversion impacts upon dissolved oxygen levels in the Section 5.3.2.3 of the Final Envirorsnental Statement, which states that "there will be no significant effect on concentrations of dissolved oxygen . . . even during low flow and stenertime flow conditions." '

As regards alleged inpacts of the Point Pleasant diversion upon American shad and shortnose sturgeon, the Appeal Board correctly found that Del-Aware had failed "to challenge any of the Licensing Board's extensive factual findings that undergird its conclusion of 'no signifi-cant adverse effect on the Delaware River populations of either American shad or shortnose sturgeon.'"U There is sinply no basis in the record 6/ AIAB Order at 2 (October 10, 1984).

7/ Del-Aware has even failed to show that it squarely addressed the issue of dissolved oxygen before the Appeal Board. Additionally, for the reasons- expressed separately in Applicant's Petition for Review of ALAB-785, filed October 17, 1984, Applicant believes that the entire issue of downriver water quality inpacts associated with flow levels of the Delaware resulting fran the allocation by the Delaware River Basin Ccanission for Limerick should be considered by DRBC rather than the NBC.

8/ AIAB-785 at 52-53.

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for Del-Aware's vastly exaggerated claim tnat, as a result of Point Pleasant withdrawals for Limerick, these populations "will be reduced by tens of thousands."S Finally, the Appeal Board properly distinguished between' the National Marine Fisheries Service's conclusion of no likely jeopardy to the shortnose sturgeon, based on the-best available scien-tific and camercial data, and the Service's recmmendation that further studiesbeconducted.EI

3. There is no reason for the Cm mission to review the scheduling of expedited hearings on the issue of enviromental impacts associated with the Point Pleasant diversion. As the Appeal Board correctly held, Del-Aware "did not even object to the Board's hearing schedule at the time it was announced," and later requested a postponment only a week prior to the hearing after trial briefs and written testimony had been filed.EI Moreover, the Appeal Board properly held that "no prejudice to Del-Aware [resulted] frm the conduct of early hearings" and there was "no . violation of NEPA."N First, the Licensing Board held early haarings only to evaluate specific impacts related to the Point Pleasant project, a small and discrete portion of the overall project reviewed in 9/

Del-Aware's Petition for Review of AIAB-785 at 3. The shad mortality rate by natural causes is quite high. As the Licensing Board found: "Less than one percent of these eggs would hatch even if they were not affected by the intake." Limerick, supra, IBP-83-11, 17 NBC at 455.

M/ AIAB-785 at 56.

M/ ALAB-785 at 24.

12/ Id. at 19.

the Limerick FES. The Board recognized that resolution of the ultimate

. cost / benefit balance for Limerick could not be determined prior to the issuance of the FES.E! The Appeal Board therefore correctly dete..nined that expedited hearings were " reasonably grounded in [the Licensing Board's] legitimate desire to avoid the same potential adverse environ-mental impacts that prmpted Del-Aware's interest in the proceeding in the first place."E The scheduling of expedited hearings under the special ciretsnstances of this case does not give rise to any significant issue of law or policy for the Camission to decide.

'4. As a related matter, the Appeal Board also correctly found that early hearings "did not impermissibly interfere with the staff's role or cupunise its objectivity" inasmuch as the " staff independently con-ducted its environmental review and prepared its own testimony for the hearing."E - Wis evidentiary matter does not warrant Cmmission review.

5. With regard to whether a second unit at Limerick will ultimate-ly be constructed and ope /ated, the Licensing Board repeatedly ruled, and the Appeal Board agreed, that the issue is problematical at best.

% e Appeal Board stated:

What Del-Aware is seeking, in ' fact, is an order directing VECo to abandon Unit 2 and to rely on a source of supplanentary cooling water for the remaining Unit 1 other than the Delaware River via the river-follower method. But we have no legal basis here for making such an order. mere is no 13/ Id. at 21.

14/ Id. at 22.

15/ Id. at 23.

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question that PECo has scme formidable obstacles to surmount if it is to operate both Limerick Units 1 and 2 in the manner currently proposed. Whether PECo will change its plans to effect an easier resolution of the problens confronting it is a matter for PECo's management, and possibly its shareholders, to decide. But the fact is we now have' before us PECo's application for a license to operate two units, using the river-follower method to supplement the plant's cooling water systen.

... [W]e are without the legal predicate to dictate to PECo that it must pursue other options.16/

As the Director of Nuclear Reactor Regulations succinctly stated in denying a Section 2.206 petition by Del-Aware on the same point, "PECO has availed italf of its legal renedies to ensure that the { Point Pleasant] Project will go forward as currently configured. . . . [F}ar fran proposing an alternative to the Point Pleasant Diversion Project, PECO's current actions appear clearly directed at ensuring that the PPD Project goes forward."E! Both the Licensing Board and Appeal Board properly denied the admission of any contention seeking to raise the speculative assunption that Unit 2 might not be built. Even assuming only one unit is operated, the Boards correctly found that the supple-nentary cooling water needs for a single unit would not be substantially 16/ AIAB-785 at 62-63. Like the Licensing Board, the Appeal Board stated that Applicant would be obliged to modify its pending application and notify the boards and parties prcmptly if in fact its plans for a supply of supplementary cooling water were to change. Id. at 63 n.163.

17/ Limerick, suara, DD-84-13, 19 NBC 1137, 1141 (1984). On May 24, 1984, counse. for Del-Aware was notified that on May 21, 1984, the time for Ccunission review of that decision had expired.

3 different.EI Accordingly, further exploration of alternatives at the operating license stage was unwarranted and properly rejected.

6. Se Appeal Board correctly found that Del-Aware's claims

' regarding alleged esthetic impacts to the Delaware Canal were also late

' without good < cause. In AIAB-765, the Appeal Board determined that Del-Aware - should be permitted an opportunity to subnit contentions relating to the inpact of the Point Pleasant project on the Point PleasantHistoricDistrict.N! S e Appeal Eoard properly held, nonethe-less, that " Del-Aware is clearly injecting a new element into its contention" by raising a new concern "about the effect of the sound barriers on the Canal".E The Appeal Board held that Del-Aware should have L raised this issue at the time its concern arose. Here again, Del-Aware has shown no error in this ruling, nor has it demonstrated its satisfaction of the test for admitting late contentions and reopening the record.

J8/ AIAB-785 at 57-60. On reconsideration, the Appeal Board reaffirmed its determination that other alternatives (e.g., the Blue Marsh Reservoir) to the existing project would not bc enhanced by the possibility that only one unit would be constructed. We Appeal Board stated: " Del-Aware provides no basis for reconsideration of our judgment. To the extent it raises new arguments not previously presented to either us or the Licensing Board, again Del-Aware is decidedly more than a day late and a dollar short." AIAB Order at 4 (October 10, 1984).

J9/ AIAB-785 at 42-45. As noted in footnote 5, supra, Applicant disagrees and has sought Ccenission review on this point.

~20/ AIAB-785 at 49. In the Partial Initial Decision on Del-Aware's contentions, the Licensing Board imposed a condition requiring Applicant to perform noise tests once the ptmping station was operational, and to mitigate audible noise offsite (e.g., by sound barriers) if necessary. See AIAB-785 at 46-47.

' 'o ;

y Conclusion For the reasons discussed more fully above, Del-Aware has shown no reason why the Cmmission should review issues which it failed to subnit timely' or properly brief before the Boards below. Moreover, no proce-

dural or substantive error has been demonstrated. Finally, no signifi-cant issue of fact, law or policy requiring Ccenission review has even been asserted. Accordingly, the petition should be denied.

Respectfully subnitted, CONNER & WETIERHAHN, P.C.

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/Q Troy B. onner, Jr.

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Robert M. Rader Counsel for the Applicant .

October 23, 1984

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION lIn the Matter of )

)

Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 (Limerick ~ Generating Station, -)

Units 1:and 2) )

CERTIFICATE OF SERVICE 4

I hereby certify ~that copies of " Applicant's Opposition to Petition for Review of ALAB-785 by Del-Aware Unlimited, Inc.," dated October 23, 1984~ in the captioned matter have

been served upon the following by deposit in the United States mail this 23rd day of October, 1984:

Samuel J. Chilk, Secretary Lando W. Zech, Jr.,

Office of~the Secretary Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

. Nunzio J. Palladino, Christine N. Kohl, Chairman Chairman Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory

-Washington, D.C. 20555 Commission Washington, D.C. 20555 Thomas M.iRoberts, commissioner Dr. Reginald L. Gotchy U.S. Nuclear Regulatory Atomic Safety and' Licensing h Commission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission James K.fAsselstine, Washington, D.C. 20555 Commissioner U.S. Nuclear Regulatory Gary J. Edles Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Frederick M. Bernthal, Commission Commissioner Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Hand Delivery

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. Helen F. Hoyt, Esq. Atomic Safety and Licensing

' Chairperson- . Appeal Panel e i.. 1 Atomic Safety and- -U.S. Nuclear Regulatory

~

iLicensing Board U.S. Commission Nuclear Regulatory Washington, D.C. 20555

. Commission-Washington, D.C.- 20555 Docketing and Service Section Office of the' Secretary Dr. Richard F. Cole U.S. Nuclear Regulatory Atomic Safety and Commission Licensing Board Washiagton,-D.C. 20555 U.S. Nuclear Regulatory Commission

~

Ann P. Hodgdon, Esq.

Washington, D.C. 20555 Counsel for NRC Staff Office of the Executive Dr. Jerry Harbour Legal Director Atomic Safety and U.S. Nuclear Regulatory

-Licensing Board Commission Washington, D.C.

U.S. Nuclear Regulatory 20555 Commission Washington, D.C. 20555 Angus Love, Esq.

Atomic Safety'and Licensing 107 East Main Street Board Panel Norristown, PA 19401 U.S. Nuclear Regulatory Commission Robert J. Sugarman, Esq.

Washington, D.C. 20555 Sugarman, Denworth &

Hellegers-Philadelphia Electric Company 16th Floor, Center Plaza ATTN Edward G. Bauer, Jr. 101 North Broad Street Vice President & Philadelphia, PA 19107 General Counsel 2301 Market Street Director, Pennsylvania Philadelphia, PA 19101 Emergency Management Agency Basement, Transportation Mr. Frank R. Romano and Safety Building 61 Forest Avenue Harrisburg, PA 17120 Ambler, Pennsylvania 19002 Martha W. Bush, Esq.

s Mr. Robert L. Anthony Kathryn S. Lewis, Esq.

Friends of the Earth of City of Philadelphia the Delaware Valley- Municipal Services Bldg.

106~Vernon Lane, Box 186 15th and JFK Blvd.

Moylan, Pennsylvania 19065 Philadelphia, PA' 19107

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'6 Charles W. Elliott, Esq. Spence W. Perry, Esq.

Brose and Postwistilo Associate General Counsel 1101 Building Federal Emergency lith 4 Northampton Streets Management Agency Easton, PA 18042 500 C Street, S.W., Rm. 840 Washington, DC 20472 Phyllis Zitzer,- Esq.

' Limerick Ecology Action Thomas Gerusky, Director P.O. Box 761 Bureau of Radiation 762 Queen Street Protection Pottstown, PA 19464 Department of Environmental Resources Zori G.-Ferkin, Esq. 5th Floor, Fulton Bank Bldg.

Assistant Counsel Third and Locust Streets Commonwealth of Pennsylvania Harrisburg, PA 17120 Governor's Energy Council 1625 N. Front Street James Wiggins Harrisburg, PA 17102 Senior Resident Inspector U.S. Nuclear Regulatory Jay M. Gutierrez, Esq. U.S. Commission Nuclear Regulatory P. O. Box 47 Commission Sanatoga, PA 19464 631 Park Avenue King of Prussia, PA 19406 Timothy R.S. Campbell Director Department of Emergency Services 14 East Biddle Street West Chester, PA 19380

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Robert M. Rader "