ML20126F180

Response Opposing F Romano/Air & Water Pollution Patrol 850521 Motion to Reopen Proceeding to Consider Delaware River Basin Commission 850513 Declaration of Drought Emergency.Certificate of Svc Encl

ML20126F180
Person / Time
Site:	Limerick
Issue date:	06/10/1985
From:	Hodgdon A NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#285-444 OL, NUDOCS 8506170384
Download: ML20126F180 (13)

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, II. BACKGROUND On March 15, 1985, Philadelphia Electric filed an application with 1

the DRBC under Section 3.8 of the Delaware River Basin Compact for an interim supply of supplemental cooling water from the Blue Marsh Reser- '

voir or other Basin water supply storage on or near the Schuylkill River.

Philadelphia Electric requires interim supplemental cooling water because the Delaware River water previously allocated by the DRBC for the Limer-ick Nuclear Station is not yet available. Philadelphia Electric's request is limited to the remainder of the year 1985.

On May 7, 1985, the DRBC held a hearing on Philadelphia Electric's l

request in which Romano /AWPP mada an appearance and comented on the request. '

The DRBC denied Philadelphia Electric's request on May 29, 1985 insofar as it pertained to interim supplemental cooling water. On May 21, 1985 Romano /AWPP filed the instant petition.

III. DISCUSSION A. The Delaware River Basin Conunission is the proper forum for AWPP's complaints.

AWPP's motion alleges that public harm will proceed from the licensing of Limerick because "[PECo] now seeks water to further threaten the public."

Presumably, AWPP refers to Philadelphia Electric's application of March 15, 1985 to the DRBC for a temporary supply of water for 1985 to implement the ascent to power program leading to commercial operation of the Limerick station. See, letter from Edward G. Bauer, Jr., Vice President, Philadelphia Electric to Susan Weisman, Secretary, DRBC, dated March 15, 1985, forwarding l -

PhiladelphiaElectric'sapplication.1/ In the Staff's view, the matter raised by AWPP is squarely within the jurisdiction of the DRBC. In a re-lated matter, the Appeal Board, in response to a petition filed by Interve-

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nor Anthony /F0E asking the Appeal Board to order Philadelphia Electric to -

withdraw its March 15 application to the DRBC, noted that it lacked the l authority to stay PECo's pursuit of its application before the DRBC and that the DRBC was the proper forum for Anthony /F0E's complaints concerning Philadelphia Electric's March 15 application. See, Memorandum and Order, May 2, 1985. The Appeal Board's analysis of Anthony /F0E's April 29, 1985 petition is equally applicable to the instant motion. 2_/ For the reasons given in the Appeal Board's Memorandum and Order of May 2, 1985, the Licensing Board should dismiss AWPP's motion.

B. AWPP's motion is moot in that the DRBC has denied the part of Philadelphia Electric's application to which AWPP objects.

On May 29, 1985, the DRBC denied Philadelphia Electric's March 15 application to use water on an interim basis from water supply storage on

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1/ The application was sent to the Appeal Board with copies to parties to the Limerick proceeding by Philadelphia Electric's counsel on March 19, 1985.

,2_/ In its Memorandum and Order the Appeal Board stated:

Although matters concerning PECO's use of the Delaware L River in connection with the operation of Limerick have been the subject of earlier NRC adjudicatory hearings, this Comission has no legal authority to order PECO to withdraw a filing before another agency. See, generally ALAB-785, supra, note 1, 20 NRC 848. As we explained in that decision, we can rule on only the federal issues in connection with an application filed with the NRC for authority to conduct Mtivities within this agency's (F0OTNOTE CONTINUED ON NEXT PAC )

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the Schuylkill River. E Thus, AWPP's motion is moot in that the relief sought from the Licensing Board has been granted by the DRBC. Therefore, the Licensing Board should dismiss AWPP's mo' tion for mootness.

C. AWPP's motion does not satisfy the Commission's criteria for opening a closed record.

In view of the foregoing, the Staff believes the Licensing Board should dismiss AWPP's motion for lack of jurisdiction and for mootness; however, in the event the Licensing Board determines that it has the requisite jurisdiction to reopen the record on the matters raised by AWPP, then the Staff submits that the Licensing Board should deny the motion on the basis that it fails to satisfy -- or even address -- the Commission's standards for reopening a closed record. The standards are well-established and the three-part test is:

1) Is the motion timely?

2) Does it address significant safety (or environmental) issues?

3) Might a different result have been reached had the newly proffered material been considered initially?

Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3),

ALAB-753, 18 NRC 1321, 1324 (1983); Metropolitan Edison Co. (Three Mile (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) regulatory jurisdiction. Memorandum and Order at 2.

(emphasis in Memorandum and Order).

-3/ Notice of Commission Action, Docket No. D-69-210 CP (Final) (Re-vised), issued June 3, 1985.

Island Nuclear Station, Unit No. 1), ALAB-738, 18 NRC 177, 180 (1983). The Staff will discuss these standards in turn.

(1) Timeliness Although AWPP has not addressed the criteria for reopening a closed record, it has briefly commented on the five factors to be considered pursuant to 10 C.F.R. 52.714(a)(1) in evaluating late-filed contentions.

In addressing the' first factor, good cause for late filing, AWPP states that its motion is timely in that DRBC's decision to declare a drought emergency took place on May 13, 1985. If AWPP's motion wholly depended on information in the DRBC decision to which reference is made, then the Staff might agree that the motion is timely. However, the motion seems to relate not to the declaration of a drought emergency but to Philadelphia Electric's March 15 application. Therefore, as it was filed more than two months after Philadelphia Electric filed its application with the DRBC, AWPP's motion should not be considered timely.

(2) Whether the motion raises a significant safety or environmental issue The motion does not squarely raise any issue -- much less a signifi-cant environmental issue. AWPP seems to object to Philadelphia Electric's application to the DRBC for interim supplemental cooling water to be supplied from storage on the Schuylkill River. The basis for AWPP's objec-tion seems to relate to competing needs for water, namely the needs of the customers of the Philadelphia Water Company and the Chester County water authority. Whatever may be the merit of AWPP's concerns, they do

-not relate to environmental concerns cognizable in NRC proceedings, but

. rather to allocation decisions within the jurisdiction of the DRBC. AWPP has not satisfied the second criterion required of a party seeking reopening.

(3) Whether a different result might have been reached The third criterion that a party requesting reopening must address is whether a different result might have been reached if the newly proffered material had been considered initially. The Licensing Board's first 4

Partial Initial Decision / decided contentions concerning the environmental impact of the operation of the Supplemental Cooling Water System located on the Delaware River at Point Pleasant, Pennsylvania. The Point Pleasant diversion when completed will provide a permanent source of supplemental cooling water for the Limerick Station. AWPP's motion to reopen concerns an interim source of supplemental cooling water to be used temporarily during the remainder of 1985 whenever the primary source, the Schuylkill River, is unavailable for cooling because of flow and temperature limita-tions imposed by the DRBC. 5_/ Nothing AWPP has offered would change the result reached in the first PID.

In conclusion, AWPP's petition is untimely; it does not raise a significant environmental issue cognizable in NRC proceedings; and con-sideration of the matters raised would not change the results reached in the proceeding. Thus, the motion fails to satisfy the criteria for re-opening and should be denied.

4/.- LBP-83-11, 17 NRC 413 (1983).

5/ In its decision of May 29, 1985, the DRBC granted Philadelphia Elec-tric's request to substitute monitoring for dissolved oxygen for the (FOOTNOTE CONTINUED ON NEXT PAGE)

D. AWPP has not satisfied the five criteria for admitting a late contention.

A party seeking to raise a new, pieviously uncontested issue through a motion to reopen the record must satisfy not only the standards for ,

reopening but also the late-filed contention criteria set forth in 10 C.F.R. 62.714(a)(1), 5/ acific P Gas and Electric Co. (Diablo Canyon Nuclear Power Plants, Units 1 and 2), CLI-82-39, 16 NRC 1712, 1714-15 (1982), including the Catawba Appeal Board's three part test for good cause. E (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) temperature limitation. However, AWPP's concern does not seem to relate to this feature of Philadelphia Electric's March 15 application.

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6/ Section 2.714(a)(1) provides that nontimely petitions to intervene or requests for hearing will not be entertained absent a determina-tion by the Licensing Board that the petition or request should be granted based upon a balancing of the following factors: .

(1) good cause, if any, for failure to file on time; (ii) the availability of other means to protect petitioner's interest; (iii) the extent to which petitioner's participation may reason-ably be expected to assist in developing a sound record; (iv) the extent to which existing parties will represent the petitioner's interest; and (v) the extent to which petitioner's participation will broad-en the issues or delay the proceeding.

7/ The Catawba Appeal Board's three part test for good cause requires a finding that the late-filed contention: "(1) is wholly dependent upon the content of a particular document; (2) could not therefore be advanced with any degree of specificity (if at all) in advance of the public availability of that document; and (3) is tendered with the requisite degree of promptness once the document comes into (F0OTNOTE CONTINUED ON NEXT PAGE) 6

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, (1) Good Cause As noted earlier, in addressing " good cause," AWPP states that its request is timely in that the DRBC's decision to declare a drought emer-gency took place on May 13, 1985. However, contrary to AWPP's assertion, the motion does not satisfy any of the Catawba criteria for determining whether there is good cause for the late filing of a contention. As dis-cussed supra, AWPP's motion depends not on DRBC's declaration of a drought emergency on May 13, 1985, but on Philadelphia Electric's March 15 appli-cation for interim suppl.emental water. 8/ Because the motion is wholly dependent on the March 15 application, one must find lack of good cause, as the motion was filed more then two months after the application was made available.

(2) Availability of other means to protect the movant's interest Not only do other means exist for the protection of the movant's interest but AWPP has availed itself of these other means in testifying before the DRBC in its May 7, 1985 hearing held on Philadelphia Elec-tric's request for interim supplemental water. Thus, AWPP has not pre-vailed on this factor.

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(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) existence and is accessible for public examination." Duke Power et al. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, Company, 16 NRC 46 TT T69 (1982); affirmed in relevant part,17 NRC 1041 at 1047 (1983).

8_/ In any case, AWPP has not included a copy of the document on which it purports to rely. Therefore, the Licensing Board is in no posi-tion to make a judgment about whether AWPP's proposed contention depends on information to be found there.

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L (3) ' Assistance in developing a sound record Regarding Factor iii, assistance in developing a sound record, AWPP states that its representative, Mr. Romano, has over 20 years experience in environmental analyses, in particular water, and that he can supply facts relating to the effect of low flow 9/ and the danger to the public from increased toxic chemicals, viruses etc. The Board need not address the accuracy of these representations in considering AWPP's showing on this factor, as the issue on which AWPP claims expertisc for its repre-sentative are not raised by Philadelphia Electric's application to the DRBC for interim supplemental water. Therefore, any assistance that AWPP's expert witness might provide with regard to low flow, El etc. does not relate to the proposed contention, which, as noted above, would seem to relate to Philadelphia Electric's application to use Schuylkill River storage as a source of interim supplemental cooling water.

(4) Representation by existing parties .

In addressing Factor iv, the extent to which another party will protect the movant's interest, AWPP states that no other party has the

" contention coverage" that AWPP's representative, Mr. Romano, offers by

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9/ The effects of low flow in the Delaware River were addressed in the '

Board's first Partial Initial Decision, in connection with the ef-fect that low flow conditions might have on the fish species of concern, shortnose sturgeon and American shad. 17 NRC 413 at 449-50.

10/ Although AWPP's motion seems to reflect a belief that the March 15 application to the DRBC would involve the use of Schuylkill River water at low flow, the fact is that Philadelphia Electric would have been ' permitted, if the DRBC had acted favorably on the application, to withdraw at Limerick only the amount of water released from up-stream storage.

virtue of his being a biochemist-bacteriologist, understanding the bio-chemistry of the interactions of organic matter, dissolved oxygen and toxic chemicals. Although Mr. Romano may be, as AWPP represents, expert in these matters, they simply do not relate to the concern expressed in 2 what the Staff takes to be AWPP's contention: that competing users, i.e., water customers -- not fish -- have a better claim to the water than Philadelphia Electric does. In addition to the fact that AWPP's expertise does not relate to its contention, the contention also suffers from not relating to an interest protectable in NRC proceedings. There-fore, this factor weighs against AWPP.

(5) Delay and broadening of the issues AWPP states that any delay that resulted in a more complete record and weighed on the side of environmental protection would merit the time required for hearing. However, contrary to AWPP's assertion, the admis-sion of any new contention at this juncture would delay the proceeding and broaden the issues. Therefore, this factor weighs against AWPP.

All five factors weigh against the admission of AWPP's late-filed contention. Therefore, AWPP's motion should be denied on the bas'is of its failure to satisfy the five factors set forth in 10 C.F.R. 9 2.714(a)(1) of the Commission's regulations.

E. AWPP fails to state a contention with the requisite basis and specificity The Commission's regulations in 10 C.F.R. 5 2.714(b) require that a petitioner set forth the basis for each proposed contention with reason-able specificity. As noted above, AWPP has not explicitly stated a con-tention, much less set forth a basis with reasonable specificity. AWPP's

, concern seems to be that suppliers of finished water to water customers have a better claim to available water than Philadelphia Electric does.

Such a contention is simply not cognizable in NRC proceedings as it rais-es no radiological health and safety or environmental issue. Therefore.

AWPP's contention. lacks reasonable basis and specificity and should be .

denied for that reason.

IV. CONCLUSION As' discussed above, AWPP's motion does not raise a concern over which this Comission has jurisdiction. Further, it is moot, in that the matter has been decided by the DRBC, the agency having such jurisdiction. For these reasons, the motion should be dismissed. In addition, AWPP has failed to make the showing required of a party seeking to reopen a closed record. AWPP has also failed to satisfy the five factors for admission of a late-filed contention and the basis and specificity requirements for the admission of a contention. Accordingly, the Licensing Board should, in the alternative, deny the motion for the reasons discussed above.

Respectfully submitted, I i

g. D C. &

Ann P. Hodgdon Counsel for NRC Staff Dated at Bethesda, Maryland this 10th day of June, 1985 1

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J UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter.of. ) 00gETEF gC PHILADELPHIA ELECTRIC COMPANY Docket Nos. 50-352 (Limerick Generating Station,

. Units.1 and 2) )

0FfliE Or SECHt. tan

• 00CHETING & SERVICf.

BRANCH-CERTIFICATE OF SERVICE-I hereby certify that copies of ."NRC STAFF. RESPONSE TO FRANK ROMAN 0/ AIR AND WATER POLLUTION PATROL MOTION OF MAY 21, 1985 " in the above-captioned proceeding have been. served on.the.following by deposit in the United States

' mail, first class, or as indicated by an asterisk through deposit in the Nuclear. Regulatory Commission's internal mail system, this 10th day of June, 1985:

Helen F. Hoyt, Chairperson (2)

Mr. Edward G. Bauer, Jr.

Administrative Judge .

Vice President & General Counsel Atomic Safety and Licensing Board Panel Philadelphia Electric. Company U.S. Nuclear Regulatory Commission 2301 Market Street

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Washington, D.C. 20555* Philadelphia, PA 19101 Dr. Richard F. Cole Troy B. ' Conner, Jr. ,' Esq.

Administrative Judge Mark J. Wetterhahn, Esq.'

Atomic Safety and Licensing Board Panel Conner and Wetterhahn U.S. Nuclear Regulatory Commission 1747 Pennsylvania Avenue, N.W.

. Washington .

D.C. 20555* Washington -D.C. 20006 Dr. Jerry Harbour Mr. Marvin I. Lewis Administrative Judge 6504 Bradford Terrace Atomic Safety and Licensing Board Panel Philadelphia, PA 19149 U.S. Nuclear Regulatory Comission Washington, D.C. 20555* Joseph H. White, III 15 Ardmore Avenue Mr. Frank R. Romano .

Ardmore, PA 19003 Air and Water Pollution Patrol 61 Forest Avenue

- Ambler, PA 19002 Kathryn S. Lewis, Esq.

1500 Municipal Services Bldg.

Ms. Phyllis Zitzer, President 15th and JFK Blvd.

Ms. Maureen Mulligan. Philadelphia, PA 19107 Limerick Ecology Action

• 762 Queen Street-Pottstown, PA 19464

Thomas'Gerusky, Director Zori G. Ferkin Bureau of-Radiation Protection Governor's Energy Council Dept. of Environmental Resources P.O. Box 8010 5th Floor, Fulton Bank Building 1625 N. Front Street Third and Locust Streets Harrisburg, PA 17105 Harrisburg, PA 17120 ~

Spence W. Perry, Esq.

Directoi~ Associate General Counsel Pennsylvania Emergency Management Federal Emergency Management Agency

. Agency Room 840 Basement,- Transportation & Safety 500 C Street, S.W.

Building Washington, D.C. 20472 Harrisburg, PA 17120 Robert J. Sugarman, Esq.

Robert L. Anthony Sugarman, Denworth & Hellegers Friends of the Earth of the 16th Floor Center Plaza Delaware Valley 101 North Broad Street 103 Vernon Lane, Box 186 Philadelphia, PA 19107 Moylan, PA 19065 James Wiggins Angus R. Love, Esq. Senior Resident Inspector Montgomery County Legal Aid U.S. Nuclear Regulatory Commission 107 East Main Street P.O. Box 47 Norristown, PA 19401 Sanatoga, PA 19464 Charles W. Elliott, Esq. Atomic Safety and Licensing Brose & Poswistilo Board Panel 325 N. 10 Street U.S. Nuclear Regulatory Commission Easton, PA 18042 Washington, D.C. 20555*

Atomic Safety and Licensing Appeal David Wersan Board Panel Consumer Advocate U.S. Nuclear Regulatory Commission Office of Attorney General Washington, D.C. 20555*

1425 Strawberry Square Harrisburg, PA 17120 Docketing and Service Section Office of the Secretary Jay Gutierrez U.S. Nuclear Regulatory Commission

- Regional Counsel Washington, D.C. 20555*

USNRC, Region I 631 Park Avenue Gregory Minor

~ King of Prussia, PA 19406 MHB Technical Associates 1723 Hamilton Avenue Steven P. Hershey, Esq. San Jose, CA 95125 Community Legal Services, Inc.

5219 Chestnut Street Timothy R. S. Campbell, Director Philadelphia, PA 19139 Department of Emergency Services 14 East Biddle Street West Chester, PA 19380 W ,

CW Ann P.' Hodgdon g Counsel for NRC Staff

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