ML20113E296
| ML20113E296 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 01/16/1985 |
| From: | Conner T, Rader R, Wetterhahn M CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#185-180 OL, NUDOCS 8501230405 | |
| Download: ML20113E296 (18) | |
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UNITED STATES OF AMERICA
- NUCLEAR REGULATORY COMMISSION ,y.,
Defore the Atomic Safety and Licensing Appeal Board In the Matter of )
)
Philadelphia Electric Company ) Decket Nos. 50-352 3
) 50-353 / --
(Limerick Generating Station. )
Units 1 and 2) )
e APPLICANT'S BRIEF IN OPPOSITION TO THE APPEAL BY DEL-AWARE UNLIMITED, INC. FROM THE MEMORANDUM AND ORDER DISMISSING CONTENTIONS V-14 AND V-16 Troy B. Conner, Jr.
Mark J. Wetterhahn 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 Cor.pany 2301 Market Street Philadelphia, PA 19101 January 16, 1985 8501230405 850116 PDR ADOCK 05000352 C PDR c
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COHMISSION In the Matter of )
)
Philadelphia Electric Company ) Docket Nos. 50-352
) 50-353 (Limerick Generating Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Brief in Opposition to the Appeal- by Del-Aware Unlimited, Inc. from the Memorandum and Order Dismissing Contentions V-14 and V-16," dated January 16, 1985 in the captioned matter, have been served upon the following by deposit in the United States mail this 16th day of January, 1985:
Christine N. Kohl, Esq. Dr. Richard F. Cole Chairman Atomic Safety and Atomic Safety and Licensing Licensing Board Appeal Board U.S. Nuclear Regulatory j U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry Harbour Gary J. Edles Atomic Safety and Licensing Atomic Safety and Licensing Board U.S. Nuclear Appeal Board Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 i
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 Office of the Secretary Helen F. Hoyt, Esq. U.S. Nuclear Regulatory Chairperson Atomic Safety Commission ;
and Licensing Washington, D.C. 20555 Board U.S. Nuclear Regulatory Commission l
Washington, D.C. 20555 1
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1, Ann P. Hodgdon, Esq. Angus Love, Esq. ;
Counsel for NRC Staff 107 East Main Street t Office of the Executive Norristown, PA 19401 '
Legal Director -
U.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 ,
I Basement, Transportation Philadelphia Elect.ric Company and Safety Building ATTN: Edward G. Eauer, 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 Miss Phyllis Zitzer Thomas Gerusky, Director Limerick Ecology Action Bureau of Radiation P.O. Box 761 Protection l 762 Queen Street Department of Environmental Pottstown, PA 19464 Pesources 5th Floor, Fulton Bank Bldg.
Charles W. Elliott, Esq. Third and Locust Streets 325 N. 10th Street Harrisburg, PA 17120 s
Easton, PA 18042 1 James Wiggins
, Jay M. Gutierrez, Esq. Senior Resident Inspector U.S. Nuclear Regulatory U.S. Nuclear Pegulatory Commission Commission Region I P.O. Box 47
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1 Zori G. Ferkin Commonwealth of Pennsylvania Governor's Energy Council l P.O. Box 8010 '
1625 N. Front Street l Harrisburg, PA 17102 l
Timothy R.S. Campbell Director Department of Emergency Services 14 East Biddle Street West Chester, PA 19380 Mr. Ralph Hippert Pennsylvania Emergency Management Agency B151 - Transportation Safety Building n Harrisburg, PA 17120 l
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Ma k3/ J . Wetterhahn l
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I TABLE OF CONTENTS I
Pace Preliminary Statement . . . . . . . . . . . . . . 1 Argument . . . . . . . . . . . . . . . . . . . . 2 l Conc 1usion . . . . . . . . . . . . . . . . . . . 11 l
TABLE OF CITATIONS I
) Cases Pace i
NLRB v. Donnelly Garment Co., 330 "
l U.S. 219 (1947) . . . . . . . . . . . . . . . . 6 !
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Nuclear Regulatory Commission !
Issuances l l
Dairyland Power Cooperative (La Crosse l
- Boiling Water Reactor), ALAB-614, 12 l
] NRC 347 (1980) . . . . . . . . . . . . . . . . 8 i
Duke Power Company (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983) . . . . . . . . . . . . . . 7 I Pacific Gas and Electric Company
! (Diablo Canyon Nuclear Power Plant, i
Units 1 and 2) , ALAB-644, 13 NRC l'
903 (1981) . . . . . . . . . . . . . . . . . . 8 i
Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2),
l ALAB-785, 20 NRC 848 (1984) . . . . . . . . . 1,2,3,4,5, i
6,7,9,11 I
I Phi _adelphia Electric Company (Limerick j Generating Station, Units 1 and 2),
! ALAB " Order" (October 10, 1984) . . . . . . . . 2,11 i
Philadelphia Electric Company (Limerick Generating Station, Un3ts 1 and 2),
ALAB " Order" (September 2, 1983) . . . . . . . 11 1-
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i Page i 1
Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), i
" Memorandum and Order on Del-Aware's !
Remanded and Revised Environmental I !
Contentions V-14 and V-16" (November 8, I 1984) . . . . . . . . . . . . . . . . . . . . . 3,6,8,9, ,
10 i Philadelphia Electric Company (Limerick ,
, Generating Station, Units 1 and 2) ,
i " Order" (October 3, 1984) . . . . . . . . . . . 2 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-751, 18 NRC 1313 (1983) . . . . . . . . . 8 i I
) Statutes ,
l National Historic Preservation Act
- Section 106 . . . . . . . . . . . . . . . 5,10 l
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UNITED STATES OF AMERICA NUCLEAR REGULATOPY 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 BRIEF IN OPPOSITION TO THE APPEAL BY DEL-AWARE UNLIMITED, INC. FROM THE MEMORANDUM AND ORDER DISMISSING CONTENTIONS V-14 AND V-16
- Preliminary Statement In ALAD-785,1/ the Atomic Safety and Licensing Appeal Board (" Appeal Board") held that intervenor Del-Aware Unlimited, Inc. (" Del-Aware") must be given an opportunity for a hearing on two issuest (1) the impact of withdrawals at the Point Pleasant pumping station for the Limerick l
l Generating Station (" Limerick") on the salinity of the Delaware River,El and (2) the impact of the pumping station on the Point Pleasant Historic District.E The Appeal Board directed that Del-Aware reformulate its two contentions "in 1
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1/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAu-785, 20 NPC 848 (1984).
2/ Id. at 866-70.
3/ Id. a'. 874-78.
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light of the specific information included in the (Limerick]
FES."AI On October 3, 1984, the presiding Atomic Safety and Licensing Board (" Licensing Board") directed Del-Aware to resubmit and reformulate Contentions V-14 and V-16 in compliance with ALAB-7RS. I Subsequently, the Appeal Board denied Del-Aware's petition for reconsideration of two aspects of ALAB-785, one of which sought to exp1nd Con- f tention V-16 beyond that which was authorized for resubmission.6,/ , j On October 19, 1984, Del-Aware filed its two refor-1 l mulated contentions pursuant to ALAB-785 and the Order of I, October 3, 1984. The Applicant and the Staff filed answers {
epposing admission of the p.oposed contentions on tiovember 3 2, 1984 and ?;ovember 7, 1984, respectively. In a Memorandum and Order entered November 8, 1984, the Licensing Board ruled that Del-Aware had failed to meet the requirements and l standards imposed by the Appeal Beard in ALAB-785 for l
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4/ Jd. at 869 (emphasis in original). Similarly, the l l Board stated that if Del-Aware chooses to presue its '
contentions upon remand, it "must do so with reference l to the staff's review, alleging specifically why that review might be inadequate "
l (emphasis in original).
. . . . M. at 876 l
5/ " Order" (October 3, 1984).
6/ ALAB " Order" (October 10, 1984). I 1
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_3 acceptance of its reformulated contentions and denied both resubmitted contentions.U Basically, the Licensing Board ruled that Del-Aware had not provided bases or specificity suffic!ent to meet the i requirement of ALAB-785 that it reformulate its contentions so as to challenge the specific information contained in the 1
Limerick FES. On appeal, Del-Aware does not seriously argue otherwise, but merely disagrees with the Appeal Board's ruling in ALAD-785 regarding the standards for the admissibility of any reformulated contentions. Accordingly, J
] the Licensing Board acted correctly in rejecting the proposed contentions and Del-Aware's appeal is without merit.
{ Argument As the Appeal Doard held in permitting Del-Aware an l opportunity for a further he a r i r.g , its resubmitted con-1 j tentions must, at this late stage in the proceeding, be
) evaluated in the context of the existing record. It l therefore ruled that whether or not Del-Aware has raised any j litigable issue can only be d e t e rr-i ned by comparing its allegations against the Staff'c consideration of the same matters in the Limerick FES. Thus, on the salinity impacts
', issue, Appeal Board stated:
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7/ Limerick, supra, " Memorandum and Order on Del-Aware's Remanded and Nevised Environmental Contentions V-14 and V-16" (tlovember 8, 1984).
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Despite the Licensing Board's errone ,
ous ruling on the effect of the DRB Compact's pre.-lusion clause on con-tention V-16, we do not order the admission of the contention per se. In the time since the Licensing Board's raling, the NRC staff's has issued its draft and final environmental impact statements for the Limerick operating license. Both address the issue of salinity and water quality, and the FES takes account of the EPA comments in this regard noted by Del-Aware. In this circumstance, the best course is to afford Del-Aware (assuming that it is dissatisfied with the FES on this score) the opportunity to reformulate its contention V-16 in light of the specific information included in the FES.8/ o Del-Aware argues that its burden of proof in pleading sound contentions was too great. To the contrary, it was only after the Appeal Board had defined the standard for admitting Del-Aware's resubmitted contentions that it analyzed the burden of proof at any subsequent hearing. The Appeal Board stated:
We agree that, once Del-Aware reformu-lates its contention in light of the FES, it may well have a heavy burden in prevailing on the merits. Nonetheless, it is entitled to the opportunity to challenge the staff's determinations on the salinity issue, as presented in the FES.9_/
Similarly, with respect to the Historic District impacts issue, the Appeal Board held that Del-Aware's
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8/ ALAB-785, supra, 20 NPC at 869 (footnotes deleted)
(emphasis in original).
9/ Id. at 869-70.
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contention must be reframed in the context of the FES's discussion:
We note, however -
as in the case of Del-Aware's salinity contention - that the staff's FES has been issued and addresses the possible impacts on the Point Pleasant Historic District. If it still chooses to pursue this issue, Del-Aware must do so with reference to the staff's review, alleging specifical-h why that review might be inadequate under section 106 of (the National Historic Preservation Act).M/
In light of these rulings, Del-Aware's appeal amounts to a collateral challenge to the ground rules previous 1,y enunciated by the Appeal Board in ALAB-785 for admitting its two respecified contentions.
Contention V-16 (salinity).O This portion of Del-Aware's brief is a convoluted argument regarding the degree of reliance which the NRC Staff could lawfully accord the findings of the Delaware River Basin Commission ("DRBC")
regarding salinity impacts in the Delaware River. The issue in the instant appeal, however, is not whether or to what extent the NRC Staff could rely upon such findings in completing the Limerick FES. Tha Appeal Board clearly held that Del-Aware "is entitled to the opportunity te challenge 10/ Id. at 876 (emphasis in original).
M/ Applicant follows the sequence of argument used in Del-Aware's brief.
the staff's determinations on the salinity issue as presented in the FES."N Rather, the issue is whether Del-Aware has satisfied the Appeal Board's requirement that it reformulate Con-tention V-16 in the context of specific information included in the FES. As the Licensing Board held, Del-Aware's reformulated Contention V-16 asserts "no changes or informa-tion that might have come to light since the construction permit was issued," attempts to inject "the very issues the Appeal Board rejected in denying Del-Aware's Petition for reconsideration," fails to jo'in issue with regard to any particular statement in the Limerick FES regarding salinity impacts, and recites documents without textual reference to support specific claims regarding salinity impacts.NI Against this finding, Del-Aware new argues that it was sufficient for it to submit only "a simple contradiction" of the FES.O This is an impermiscible attack upon the established law of the case in ALAB-785 regarding the 12/ Id. at 869-70, 13/ L i n.e r i c k , supra, " Memorandum and Order" at 3 (November 8, 1964). As the Board noted, the documentary references by Del-Aware woro vague and in some cases unintelligible. Some of the documents relied upon are not a part of the record, nor were they provided to the Licensing Board and parties. These imprecise references provided "no nexus betwoon the statement of basis and the statement of the contention." Id. at 4.
J_4,/ Del-Aware's Brief at 4.
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1 standard for the admission of its respecified contentions.
The Licensing Board correctly found that Del-Aware had failed to provide any basis for its contention or particularize specific deficiencies alleged in the Limerick FES.N As with any pleaded contention, Del-Aware was free, but not obliged, to provide a documentary basis for its allegations. It chose, nonetheless, merely to list a number of documents whose citation yielded no discernible informa-tion.
Finally, without any basts whatsoever, De l- Awa re impugns the integrity and irapa rt ia lit y of the Licensing Board in carrying out the Appeal Board's remand order.
Del-Aware assercs that ALAB-785 was " misconstrued in favor of [the Licensing Board's) own already-expressed views as contained in the remanded decision themselves (sic)"El and "in a manner that is selectively supportive of its own i previously expressed disinclination to preside over the l
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15/ It is difficult to understand why Del-Aware complains that the record was somehow " defined and i i
circumscribed." Del-Aware's Drief at S. Any party pleading a proposed cor tention has the right to support )
its argument by docur.+ntary authorities to show the requisite basis. Indeed, such a documented showing is often the esrence of an admissible contention. See Duke Power Company (Catawba Nuclear Station, Units 1 and 2), cf.1-63-19, 17 NPC 1041 (1983).
l M/ Del-Aware's Prief at 2.
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substantive ajudication [ sic) of the salinity issue."El ,
Such inferences are unjustified. E# !
Contention V-14 (Historic District). The Licensing Board found tnat the bases alleged by Del-Aware in support of this resubmitted contention were "even thinner" than the bases submitted for Contention V-16.EI The Board noted that the asserted bases consisted largely of " extremely vague citations to various ' studies' and ' documents' and to a courtroom statement in a case identified only by name."El f The Licensing Board correctly found that the allegations, im sum, failed to controvert the adequacy of the consideration 17/ Id. at 5.
H/ The Appeal Dnard has repeatedly ru' led that an adverse l 1egal ruling is not a basis for inferring bias or ,
prejudico. Public Servien Company of New Hampshire !
(Seabrook Station, Units 1 and 2), ALAb-751, 18 NHC ,
1313 (1983): Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 1, 2), ALAB-644, 13 !
NRC 903, 923 (1981). The fact that the Licensing Board l was previot. sly reversed on the rejection of Contention !
V-16 creates no different situation. Sco Dairyland }
Power Coor,e ra t ive (La Crosse Boiling Water Reactor), ;
ALAD-614, 12 NBC 347, 349 (1980). As the Supreme Court i held in NLRT v. Donnelly Garment Co., 330 U.S. 219, 229 l (1947): "According to an early t'nglish judge, 'The l devil himscif knoweth not the mind of man,' and a modern reviewing court is not much better equipped to lay bare unexposed mental processes. . . . (Wle cannot re$cet (the Daard's) explicit avowal that it did take into account evidence which it should have considered unless an examination of the whole record putn its !
acceptance beyord reason." !
,1_9 / Limerick, supra, " M u nio r a n d un> nrd Ordor" at 5 (November 8, 1984). '
20/ Id. I
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i ~ 9-I given the Historic District in the Limerick FES and, by 1
implication, the Memorandum of Agreement among the United
- States Army Corps of Engineers, the Pennsylvania State Historic Preservation Officer, and the Advisory Council on i
Historic Preservation. Here again, Del-Aware failed to meet the threshold requirement imposed by ALAB-785. '
As with its appeal regarding Contention V-16, Del-Aware j l improperly focuses upon the degree of reliance the NRC Staff =
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' preparing the j Limerick FES. The Appeal Board held that such reliance was 4
l proper,21/ but ruled that Del-Aware should be given an l
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opportunity to refute the substance of those findings. On !
, appeal, it is clear that Del- Vare failed to do so. Similar :
to the allegations in its proposed contention, Del-Aware , {
asserts on appeal an " impact on a comprehensive complex of resources,"b# the " basic setting and visual character" of the area and the " generally wooded character of the river bank."M/ Such nebulous references without any specific -
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} 2),/ ALAB-785, supra, 20 NRC at 876 n.110.
l l M/ Del-Aware's Drief at 6 (orphasis in original) .
23/ Id. at 7 As the Licensing
Deard noted,
the Appeal i
Doard had " explicitly ruled that issues concerning the i impact on the Historic District of sound barriors which j
i might be installed at the PPD, or the impact of the PPD
- on the Delaware Canal, would be beyond the scope of an acceptable revised V-14." Limerick, supra, " Memorandum i
and Order" at 4 (November 8, 1984), citing ALAD-785, supra, 20 NR' at 876-78.
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support are clearly insufficient to demonstrate why the the Staff's review was inadequate under Section 106 of the National Historic Preservation Act. As the Licensing Board observed, Del-Aware's vague allusion to various documents and references was tantamount to a request that the Board reformulate an acceptable contention itself. U#
In its summary, Del-Aware argues that it "has not attempted to argue the detailed merits of those contentions in what would necessarily be the vacuum of its brief state-ments of the ' bases' on which they are formulated. The proper forum for such argument is in the litigation of those
- contentions upon their admission."El Del-Aware complains j that "it appears that the Board expects Del-Aware, in i
effect, to litigate those contentions as a precondition to I
their admission."E# To the contrary, the level of pleading detail required by ALAB-785 was entirely reasonable. The Licensing Board did no more than enforce compliance with that threshold requirement. The Appeal Board has repeatedly warned Del-Aware that it must bear the full consequences of 24/ Limerick, supra, " Memorandum and Order" at 5 (November 8, 1984).
2_S / Del-Aware's Brief at 8.
26/ Id.
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I its inartful pleadings.NI Del-Aware's failure to' heed this admonition is no basis for an appeal.
Conclusion I i
f For the reasons discussed above, Del-Aware has failed co meet the requirement of ALAB-785 that it submit refor- i mulated contentions base] upon specific allegations of I inadequacy in the treatment of salinity impacts and Historic-District impacts in the Limerick FES. }
The Licensing Board :
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e 17,/ When Del-Avare initially submitted its brief, the Appeal Boart reminded it that it "must bear full responsibility for any possible misapprehension of its position caused by the inadequacies of its brief."
Limerick, supra, ALAB " Order" at 2-3 n.2 (September 2, 1983), citing Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666, 15 NRC 277, 278 (1982). Reiterating this warning in ALAB-785, l the Appeal Board stated: "Although we found it comprehensible enough for the other parties to reply to it, we cautioned Del-Aware that it was to bear the risk e of the shortcomings of its own brief. . . . We repeat that caveat here." Limerick, cupra, ALAB-785, 20 NRC at 870 n.76. Finally, in denying Del-Aware's motion to reconsider ALAD-785, the Appeal Board again repeated "our criticism of the quality of Del-Aware's brief and our caveat that Del-Aware must bear the risk of such
' shortcomings.'" Limerick, supra, ALAB " Order" at 3 (October 10, 1984) (footnote omitted).
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.. j therefore properly dismissed proposed Cententions V-14 and V-16. Its action should therefore be affirmed.
f Respectfully submitted, l
F CONNER &.WETTERHAHN, P.C.
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Troy B. Conner, Jr.
Rcbert M. Rader Counsel for the Applicant l
January 16, 1985 1*
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