ML20128E558
| ML20128E558 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 07/02/1985 |
| From: | Lewis S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| CON-#385-667 ALAB-809, OL, NUDOCS 8507050372 | |
| Download: ML20128E558 (14) | |
Text
(,M aY ey ro::.t:.7o a 4
OUl -3 70355 w3 UNITED STATES OF AMERICA 9'
NUCLEAR REGULATORY COMMISSION g$pgf'bi ifi{
S' y
BEFORE THE COMMISSION p
In the Matter of
)
)
PHILADELPHIA ELECTRIC COMPANY
)
Docket Nos. 50-352W
)
50-3530 L (LimerickGeneratingStation,
)
Units 1 and 2)
)
NRC STAFF ANSWER IN OPPOSITION TO APPLICANT'S REQUEST FOR EXPEDITED REVIEW 0F ALAB-809 AND OTHER EMERGENCY RELIEF Stephen H. Lewis Deputy Assistant Chief Hearing Counsel July 2, 1985 i
G507050372 050702 ADOCK0500g2 DR 9
7
P lid
\\
0 N
6 Dcc. g.
UNITED STATES OF AMERICA N I. - 3 Jgg y
~- ]
~
~
NUCLEAR REGULATORY COMISSION g
BEFORE THE COMMISSION b
In the Matter of
)
PHILADELPHIA ELECTRIC COMPANY Docket Nos. 50-352 50-353 (Limerick Generating Station, Ur.its 1 and 2)
NRC STAFF ANSWER IN OPPOSITION TO APPLICANT'S REQUEST FOR EXPEDITED REVIEW 0F ALAB-809 AND OTHER EMERGENCY RELIEF Stephen H. Lewis Deputy Assistant Chief Hearing Counsel July 2, 1985
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
FHILADELPHIA ELECTRIC COMPANY Docket Nos. 50-352
)
50-353 (Litterick Generating Station,
)
Units 1 and 2)
)
f:RC STAFF ANSWER IN OPPOSITION TO APPLICANT'S REQUEST FOR EXPEDITED REVIEW 0F ALAB-P09 ANi> OTHER EMERGENCY RELIEF INTRODUCTION AND BACKGROUND This answer is filed by the NPC staff in opposition to " Applicant's Request for Expedited Review of ALAB-809 and Other Emergency Relief,"
(hereafter " petition for review") dated June 20, 1985. Applicant as-serts thot the Atomic Safety and Licensing Appeal Board in ALAB-809 1/
"comitted fundamental legal error which necessitates immediate review and ccrrection by the Commission." Petition for review, at 5.
On the basis of the legal error asserted, the Applicant requests the Comission to (1) immediately review and reverse A' LAB-609, (2) reinstate authoriza-tion for issuance of a full-power operating license, and (3) make any f
findings necessary for the grant of an exemption from 10 C.F.R. 5 50.47(a) and(b).
Id... at 11-12.
I l
ALAB-809 arose out of a motion filed by the Applicant on February 7, 1985foranexemptionunder10C.F.R.i50.12(a)fromtherequirementsof l
l i
i 1/
Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-809, 21 NRC
,slipop.(June 17,1985).
~
l
_ 10 C.F.R. 6 50.47(a) and (b) to permit operation uf Limerick Generating Station at power levels greater than 5% of rated power " prior to the completion by the Board of its consideration of any contentions which it may admit related to the evacuation provisions of the radiological emer-gency plan for the State Correctional Institution of (sic) Graterford "El The background to ALAB-809 is set out in that decision and in the pleadings of the parties who have participated on the issue of whether the exemption should be granted and will not be repeated here.
The Appeal Board in ALAB-809 held that the Licensing Board in its orders 2/ ad failed to apply the proper standards Ma) 9 and May 24, 1985 h
for gronting on exemption and had failed to state a reasoned basis for its action. ALAB-809, slip o_p_. at 3.
The Appeal Board, therefore, va-cated the May 9 and May 24 orders and remanded the matter to the Licens-ing Board for further action in accordance with its opinion.
Id.
The Appeal Board held the Licensing Board's grant of the exemption to have been improper on two grounds. First, the Licensing Board had erred in basing its grant of the exemption solely on the provisions of 4
i
-2/
" Applicant's Motion For Exemption From The Requirements Of 10 C.F.R. 6 50.47(a) And (b) As They Relate To The Necessity Of Atomic Safety And Licensing Board Consideration Of Evacuation Provisions Of The Emergency Plan For The State Correctional Institution Of Graterford," (hereinafter, " exemption motion").
i 3/
" Order Granting Applicant's Motion For Exemption Froni Requirement Of l
10 C.F.R. $ 50.47(a) and (b) For A Period Of Time Any Potential Contentions Of Remaining Party Are Considered By The Board," (May 9, i
1985); " Board's Order Implementing Its Grant Of Applicant's Motion 1
For E1temption From Requirement Of 10 C.F.R. 9 50.47(a) And (b) For A I
Period Of Time Contentions Of Graterford Inmates Are Considered By The Board -- Authorization For Director Of Nuclear Reactor Regula-l tion To Issue Full Power License" (May 24,1985).
I i
10 C.F.R. 5 50.47(c)(1) and not having also measured it against the stan-dards of 10 C.F.R. 6 50.12(a). M., s l i p o_g. at 9-10.
Second, the Li-censing Board had acted prematurely in granting the exemption before it had ruled on the admissibility of the proposed contentions of the inmates of the State Correctional Institution at Graterford. 4/
Id., slip op.
at 13-14.
In its petition for review, the Applicant asserts that the Appeal Board contaitted " fundamental legal error" in four respects.
Petition for review at 5.
Briefly stated, the four assertions are:
(1)theAppeal Board's ruling violated 6 50.47(c)(1) by imposing the additional require-rients of 5 50.12(a) and was directly contrary to Comission policy and precedent affording temporary relief under 6 50.47(c)(1) from Commission emergencyplanningrequirements(M.,at5-6);(2)theAppealBoarderred in holding that the grant of the exemption was premature because the Licensing Board had not yet determined whether an admissible contention had been proffered by the inmates ( M., at 6); (3) the Appeal Board erred in not itself deciding whether the Applicant had demonstrated compliance withthecriteriaof650.12(a)(M.);and(4)theAppealBoarddenied Applicant due process by vacating the Licensing Board's orders on the basis that the criteria of both 59 50.12(a) and 50.47(c)(1) must be sat-isfied,abasisthathadnotpreviouslybeenraised(M.,at6-7).
~
~/
The Graterford Inmates will hereafter be referred to as " inmates" 4
and the State Correctional Institution 6t Graterford will hereafter be referred to as "SCIG".
_ _ - For the reasons developed below, the Staff submits that the petition for review does not raise "an important question of fact, law or policy" meriting Commission review.
10 C.F.R. Q 2.786(b)(1).
DISCUSSION I
Although the Commission has the discretion to review any decision of its subordinate boards, a petition for Commission review "will not ordi-narily be granted" unless important environmental, safety, precedural, ccomon defer.se, antitrust, or public policy issues are involved.
10 C.F.R.
? 2.786(b)(4). The Staff submits that ALAB-809 did not resolve any issue, based on the circumstances of this case, in a manner which merits Commission review. The Staff considers each of the asserted errors in turn.
A.
The Appeal Board did not commit error by requiring that the Licensing Board review the exemption motion under 9 50.12(a) as well as 6 50.47(c)(1), in the circumstances of this case. Applicant notes correctly that 5 50.47(c)(1) has been relied upon in a line of Comission cases to authorize the grant of operating licenses even though the emergency plans associated with those plants may not have fully met the standards set forth in 10 C.F.R. 6 50.47(b). E The issue in such cases, however, was whether a factual record which had been compiled with regard to emergency planning was sufficient to support a finding under i 50.47(c)(1) or what factual record would be required to suport a 9 50.47(c)(1) finding in
~
5/
See, petition for review, at 8-9 ns. 18, 19.
light of asserted emergency planning deficiencies. 5/ While an extensive evidentiary record has been compiled in the Limerick proceeding on offsite cmergency planning U the specific contentions asserting deficiencies in the emergency plan for the SCIG have not yet been the subject of an adjudi-catory hearing. The grant of the Applicant's exempticn motion must, of necessity, address the alleged deficiencies in the SCIG plan in order to make the required show,ing under % 50.47(c)(1). The Staff believes that these circumstances distinguish Limerick from the 5 50.47(c)(1) cases relied upon by the Applicant. While not explicitly stated by the Appeal Board in its discussion of the requirement that the exemption motion be reviewed against s 50.12(a) 8_/, the Appeal Board's decision appears to be driven by the fact that a factual record had not yet been fully developed with respect to the deficiencies alleged by the inmates. AI
-6/
See, for example:
Southern California Edison Company (San Onofre huclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 369 (1983); Long Island Lighting Company (Shoreham Nuclear Power Staticn, Unit 1), CLI-83-13, 17 NRC 741, 743 (1983); Metropolitan Edison Cortpany (Three Mile Island Nuclear Station, Unit 1),
LBP-61-59, 14 NRC 1211, 1459 (1981).
y See generally, Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-85-14, 21 NRC (May 2, 1985), (Third Partial Initial Decision On Offsite Emergency Planning).
i 8/
ALAB-809, slip op. at 6-13.
9/
Id. slip op, at 10-11 n. 9 (distinguishing San Onofre on the basis
'tTat -in that case no outstanding ccntentions remained to be consid-ered); slip op, at 15-16 and n. 14 (leaving to the Licensing Board to consider the exemption request in the context of the two admitted contentions).
The Applicant also asserts that ALAB-809 is "directly contrary to Commission policy... in affording temporary relief from emergency plan-ning requirements under [10 C.F.R. 9 50.47(c)(1)]." Petition for review, at 5-6.
The Staff recognizes that the Comission intended 5 50.47(c)(1) to provide for "... certain equitable exceptions, of a limited duration, from the requirements of 5 50.47(b)...." See, Emergency Planning:
Statement of Policy, 50 Fed. Reg. 20892, at 20893 (May 21, 1985).
Nothing e
in that policy statement, however, or in Commission statements of consid-EI indicate that an exemption under 6 50.12(a) eration regarding 9 50.47 woulc not also be required where 9 50.47(c)(1) is invoked in advance of the full development of a factual record on the emergency planning defi-ciencies alleged to exist.
The Staff can, thus, perceive no error in requiring the more general stano6rds for an exemption contained in 6 50.12(a) to be addressed by the Licensing Board in addition to the more specific standards contained in 5 50.47(c)(1) under the circumstances of this case.
B.
The Appeol Board did not err in ruling that the Licensing Soard's grant of the exemption was premature.
The Appeal Board reasoned that only after one or more contentions had been admitted could the specific asserted deficiencies be known and, hence, be addressed by the Applicant and the other parties. ALAB-809, slip og. at 14. The Staff had consistently taken the position that the exemption motion was premature until the Licensing Board had ruled upon the admissibility of the inmates' proposed
~
10/ See, 45 Fed. Reg. 55402 (August 19, 1980); 47 Fed. Reg.30232 (July 13, 1982).
contentions. E The real point here is that the alleged deficiencies have to be sufficiently well defined that they may be adequately addressed by a factual record. This is consistent with the Connission cases, cited abcve in n. 6, applying 5 50.47(c)(1).
C.
The Appeal Board did not err in declinin9 to make a determina-tion itself on whether the standards of i 50.12(a) were met based upon a review of the exemption motion and the briefs of the parties. The Appeal Board considered it more appropriate for matters related to the signifi-carce of the asserted deficiencies to be determined in the first instance by the Licensing Board on the basis of a factual record developed before it. E D.
The Applicant's assertion that it was denied due process because the Appeal Board in ALAB-809 relied on a legal basis -- the requirements to consioer the exemption against i 50.12(a) as well as i 50.47(c)(1) --
that had not been previously raised is not well-founded. The Applicant was put on notice as to the existence of this issue by the Appeal Board's statement in its May 21, 1985 Memorandum and Order that:
we do not understand hcw the Board could properly weigh the exemption criteria of both 10 C.F.R. Il 50.12(a) and 50.47(c)(1) (as well as pertinent case law) before it has determined whether any ennption will even be necessary --
11/ "NRC Staff Respense To Applicant's Motion Dated February 7,1985 For Exemption From The Requirements Of 10 C.F.R. I 50.47(a) And (b),"
(March 18, 1985), at 6-9; "NRC Staff Additional Views On Applicant's MotioW Dated February 7, 1985 For Exemption From The Requirements Of 10 C.T.R. I 50.47(a) And (b) " (April 1,1985), at 3-4.
12/ See ALAB-809, slip op, at 16 ns.14,15.
a
)
i.e.,whethertheinmateshaveg/rofferedanadmissiblecon-tentions.
[footnoteomitted]3 When, despite the Appeal Board's statement, the Licensing Board reiterated in its May 24 order that its grant of the exemption motion was based on l
550.47(c)(1)alone,theApplicantcouldhaveanticipatedthatthisissue r
i would be addressed when the Appeal Board ruled on the appeals from the I
May 24 order. Nevertheless, the Applicant did not address this issue in f
its response brief. EI Thus, Applicant's assertion now that it was denied i
l due process is without merit.
I j
II
}
As set forth above, the Comission shculo not take review of ALAB-809.
t i
Since the Conmission shculd let ALAD-809 stand, the Commission should also i
decline to grant the emergency relief requested by the Applicant. E l The l
Licensing Board has already taken steps to hold an expeditious hearing on s
l i
t l
l M/ Philadelphia Electric Company (Limerick Generating Station, Units 1 l
and 2), Memorandum and Order, May 21, 1985, at 2.
H/ " Applicant's Brief In Opposition To Appeals By Graterford Prisoners, i
Friends Of The Earth And Air And Water Pollution Patrol Regarding The Grant Of An Exemption As To Graterford Contentions," (June 13, j
1985).
See, p. 15 n. 31.
e i
15] The Applicant requested:
reinstatement of the Licensing Board's 5
j j,
grant of the exemption and its authorization of issuance of a i
full 40mer operating license, conferring of immediate effectiveness on the Licensing Board's orders authorizing license issuance, and the Comission's grant of the exemption requested by the Applicant.
i i
l 4
i I
~----,,--,.,~.-,--..--,,.nn,,na---,.-,------w,-.,-n_,,
_.--n--,--n,.
w--.m-,--
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _.. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ the ac'nitted contentions of the inmates. El Pursuant to the opportunity afforded in ALAB-809, the Applicant has also filed a renewed motion for an exemption, which is presently pending before the Licensing Board $
The Commission has previously indicated that it would again consider the issuance of a full-power operating license for Limerick, Unit 1 once either the Appeal Board had found the grant of exemption proper or the Licensing Board had issued a decision on the contentions. E Since proce-dures are in place to bring this proceeding to an expeditious conclusion, the Ccnc11ssion sFould not exercise its discretion to grant Applicant's requested emergency relief. E 16/ The hearing is scheduled to commence on July 15, 1985 and the Li-censing Bo6rd has taken the additional step of irodifying the normal procedures for filing of proposed findings and has advised the par-ties that within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> following the close of receipt of evidence it will hear oral argument on the parties' positions and that any party wishing to do so may simultaneously file a written outline of its proposed finoings of fact and conclusions of law." Memorandum and Oroer: Graterford Contentions and Hearing Schedule" (June 18, 1985).
17/ " Applicant's Renewed Motion For An Exemption From The Requiretrents Of 10 C.F.R. I 50.47(a) and (b) As They Relate To The Two Contentions Admitted Or. Behalf Of The Graterford Prisoners During The Period hecessary For Litigation " (June 20,1985).
16/ Philadelphia Electric Company (Limerick Generating Station. Units 1 and2),CLI-85-11,21NRC
, June 11, 1985, slip op at 2.
19/ The Applicant also requested that in the event the Conunission did not grant its other requested relief, it grant an application that the Applicant would shortly be filing for an exemption from the requirenent of 10 C.F.R. Part 50, Appendix E, Section IV.F.1 tht.t a full perticipation emergency planning exercise be conducted within one ytar before the issuance of a full-power license.
Petition for review, at 2-3.
Such a motion was filed with the Consnission on June 24, 1985 and the Staff is currently preparing a response to the notion.
e CONCLUSION For the reasons set forth in this answer, the Staff believes that the Commission should decline to take review of ALAB-809 or to take the Other actions requested in the petition for review.
Respectfully submitted, S. boar u'4L Stephen H. Lewis Deputy Assistant Chief Hearing Counsel Dated et Cethesda, Mary and this 2nd day of July, 1485 9*
O
'N e
g.
\\
~.-
UNITED STATES OF AMERICA
-S
/&
ilVCLEAR REGULATORY COMMISSION lh dh '2 BEFORE THE COMMISSION j
T5 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 "LRC STAFF ANSWER IN OPPOSITION TO APPLICANT'S RECUEST FOR EXPEDITED REVIEW 0F ALAB-809 AND OTHER EMERGENCY RELIEF" 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 oeposit in the Nuclear Regulatory Comission's internal mail system, this 2nd day of July, 1985:
Samuel J. Chilk Herzel H. E. Plaine, Esq.
Office of the Secretary General Counsel U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C.
20555*
U.S. Nuclear Regulatory' Commission Washington, D.C.
20555*
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 Washington, D.C.
20555*
Philadelphia, PA 19101 Dr. Richard F. Cole Troy B. Conner, Jr., Ehq.
Administrative Judge Mark J. Wetterhahn, Esq.
Atomic Safety and Licensing Board Panel Conner and Wetterbahn 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 Commission Washington, D.C.
20555*
Joseph H. White, III 15 Ardmore Avenue Mr. Frank H. 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.
Director Associate General Counsel Pennsylvania Emergency Management Federal Emergency Management Agency Agency Room 840 Basement. Trar.sportation & 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 cf 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 Norristan, 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 Board Panel (8)
David Wersan Consumer Advocate U.S. Nuclear Regulatory Commission Office of Attcrney General Washington, D.C.
20555*
1425 Strawberry Square Harrisburg, PA 17120 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Jay Gutierrez 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 Conmunity 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 fn M. %',
Stephen H. Lewis Deputy Assistant Chief Hearing Counsel
.