ML20132H107
| ML20132H107 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 07/17/1985 |
| From: | Wetterhann M CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#385-859 OL, NUDOCS 8507190542 | |
| Download: ML20132H107 (23) | |
Text
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QCCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGUIA'IORY CONISSION (FFICE OF SECRETARY Before the Atcmic Safety and Licensing Appeal hhhC Administrative Judges Christine N. Kohl, Chaiman Gary J. Edles Dr. Reginald L. Gotchy In the Matter of )
)
Philadelphia Electric Ccmpany ) Docket Nos. 50-3520'
) 50-353 (Limerick Generating Station, )
Units 1 and 2) )
APPLICANT'S BRIEF IN OPPOSITION 'IO APPEAL BY ANTHONY / FRIENDS OF THE EARTH FRCH THE MDORANDEM AND ORDER, DATED JUNE 4,1985, DENYING ITS MOTION 'IO REOPEN 'IEE RECOFD EOR ADMISSION OF A NEW EFFLUENP RELEASE CONTENTICN 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 Ccmpany of Counsel:
Edward G. Bauer, Jr.
Eugene J. Bradley Philadelphia Electric Ccmpany 2301 Market Street Philadelphia, PA 19101 July 17, 1985 8507190542 850717 DR ADOCK O 32 gC3
t e
e TABLE OF CONITNTS Page Introduction . . . . . . . . . . . . . . . . . . . . . 1 Argument . . . . . . . . . . . . . . . . . . . . . . . 4 I. 'Ihe Licensing Board Correctly Held That EDE had Failed to Satisfy the Separate Criteria for Reopening a Closed Record and Admitting a Iate-Filed Contention .. .... ... .. 4 A. FOE Has Failed to Satisfy the Requirements for Reopening a Closed Record . . . . . . . . . . . . . 4 B. FOE Has Also Failed to Meet the Criteria for Admission of a Late-Filed Contention . . . . . . . . 8 C. EDE Has Not Stated Any Contention with Specificity and Bases ... .. . 12 II . . The Appeal Board Should Strike FOE's Brief as Untimely and Dismiss the Appeal . . . . . . . . . . . . . . . . . . . 13 Conclusion . . . . . . . . . . . . . . . . . . . . . . 14
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4 TABLE OF CITATIONS Page Nuclear Regulatory Ccanission Issuances Consumers Power Ccrnpany (Midland Plant, Units 1 and 2), ALAB-624,12 NRC 680 (1980) .......... 9 Detroit Edison Ccrpany (Enrico Fermi Atcznic Power Plant, Unit 2), ALAE-707,16 NBC 1760 (1982) .............. ............ 11 Duke Power Ccrrpany (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041 (1983) ...... 9 Duke Power Ccmpany (Catawba Nuclear Station, Units 1 and 2), ALAB-687,16 NRC 460 (1982) ....... 9 Florida Power and Light Ccmpany (St. Lucie Nuclear Power Plant, Unit No. 2) , ALAB-579, 11 NRC 223 (1980) ................... . 10 Houston Lighting and Power Ccmpany (Allens Creek Nuclear Generating Station, Unit 1) , ALAB-582, 11 NBC 239 (1980) ........ ............ 4 Iong Island Lighting Ccmpany (Shoreham Nuclear Power Station, Unit 1), AIAB-743, 18 NRC 387 (1983) .................... 11 Iouisiana Power & Light Ccmpany (Waterford Steam Electric Station, Unit 3), AIAB-786, 20 NBC 1087 (1984) ................... . 12 Iouisiana Power & Light Ccmpany (Waterford Steam Electric Station, Unit 3), AIAB-753, 18 NRC 1321 (1983) ........ ............ 2 Mississippi Power & Light Ccmpany (Grand Gulf Nuclear Station, Units 1 and 2),
AIAB-704,16 NRC 1725 (1982) ...............
i3 11 i
Pacific Gas and Electric Ccrnpany (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-82-39,16 NRC 1712 (1982) .............. 2 Pacific Gas and Electric Ccmpany (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
AIAB-775,19 NBC 1361 (1984) ............... 12
- ii - e
0 Page Pacific Gas and Electric Canpany (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
AIAB-410, 5 NBC 1398 (1977) ......... ...... 6 Philadelphia Electric Canpany (Limerick Generating Station, Units 1 and 2),
" Memorandum and Order - Graterford Contentions and Hearing Schedule" (June 18,1985) ................... 11
" Order Admitting Certain Revised Contentions of the Graterford Inmates and Denying Others" (June 12, 1985) ...... ... 13
" Memorandum and Order Denying Petition by Anthony / FOE to Reopen the Record on the Basis of New Information in Philadelphia Electric Co.'s Semi-Annual Effluent Release Report, Feb. 1985 (June 4,1985) ................... 2,3,6,9
" Order" (May 8,1985) ................ 2 LBP-85-14, 21 NRC (May 2,1985) ........ 14 AIAB-806, 21 NBC (May 1,1985) ......... 13
" Order" (April 23, 1985) ........... ... 13 AIAB-726,17 NBC 755 (1983) ............. 2 LBP-82-43A,15 NRC 1423 (1982) ........ ... 6 Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), AIAB-648,14 NRC 34 (1981) ...................... 4 South Carolina Electric and Gas Canpany (Virgil C. Stamer Nuclear Station, Unit 1),
AIAB-642,13 NRC 881 (1981) ............... 4 Virginia Electric and Power Campany (North Anna Nuclear Power Station, Units 1 and 2) , AIAB-551, 9 NBC 704 (1979) . . . . . . . . . . . . 10 Washington Public Power Supply System (WPPSS Nuclear Project No. 3) , AIAB-786, 20 NBC 1087 (1984) .................... 12
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Page Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NFC 1167 (1983) .................... 9,11 Regulations 10 C.F.R. S2.206 . . . . . . . . . . . . . . . . . . . . . 7,8,10 10 C.F.R. S2.714a .................... 13 10 C.F.R. S2.714a(a) ................... 13 10 C.F.R. ' S2.714 (a) (1) (i)-(v) .............. 8 10 C.F.R. S2.714 (b) ................... 12 10 C.F.R. S2.743 (c) ................... 12 10 C.F.R. S2.758 . . . . . . . . . . . . . . . . . . . . . 6 10 C.F.R. S2.762(b) ................... 14 10 C.F.R. Part 20 .................... 6,11 10 C.F.R. Part 50 .................... 6,7 Miscellaneous Affidavit of Edward F. Branagan, Jr.,
Section Leader, Radiological Assessment Branch, Division of Systems Ingregration, Office of Nuclear Reactor Regulation (May 28,1985) ...................... 6 Affidavit of Bruce Molholt (July 2,1985) ........ 4,6,7,10, 11,12 Environmental Report - Operating License Stage ........................... 5 Final Safety Analysis Report . . ............. 5 Draft Environmental Statement (June 1983) ........ 5,6 Final Envirortnental Statement (April 1984) ........ 5,8 Semi-Annual Effluent Releases Report No. 1, December 22,1984 '1hrough December 31, 1984 (February 1985) ..................... 1,6,11
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Letter to RLAnthony frcra HRDenton, Director, Nuclear Reactor Regulation (February 13, 1985) ...... 8 Ietter to RIAnthony frczn HRDenton, Director, Nuclear Reactor Regulation (March 26, 1985) ....... 8 Offsite Dose Calculation Manual (October 3,1984) ... ...... ........... 5,6,8 Regulatory Guide 1.109 . . . . . . . . . . . . . . . . . . 3,5,6,7,10
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UNITED STATES OF AMERICA NUCLEAR REGULA'IORY CCtHISSION Before the Atmic Safety and Licensing Appeal Board In the Matter of )
)
Philadelphia Electric Cmpany ) Docket Nos. 50-352
) 50-353 (Limerick Generating Station, )
Units 1 and 2) )
APPLICANT'S BRIEF IN OPPOSITION 'IO APPEAL BY ANIHONY/ FRIENDS OF 'IHE EARTH FRCH THE MENORANDUM AND ORDER, DATED JUNE 4,1985, DENYING ITS MCffION 'IO REOPEN THE RECORD EOR ADMISSION OF A NEW EFFLUENT RELEASE CONIDJTION _
Introduction On April 30, 1985, intervenor Robert L. Anthony / Friends of the Earth (collectively "EDE") filed a petition seeking to reopen the record to raise the issue of Applicant's calculation of offsite effluent releases frm the Limerick Generating Station (" Limerick") .1_/ Both Applicant and the NRC Staff filed answers opposing the request to reopen the record and admit a new contention.2_/
1/ See Petition by Anthony /EOE to Reopen the Record on the Basis of New Information in Philadelphia Electric Cmpany's Semi-Annual Effluent Release Report, February 1985 (April 30, 1985) (" FOE Petition to Reopen").
2_/ Applicant's Answer to Petition by Anthony / Friends of the Earth to Reopen the Record Based on Information Relating to Offsite Effluent Releases (May 7,1985); NRC Staff Response to Anthony /EDE Petition to Reopen the Record on the Basis of New Information in Applicant's Semi-Annual Effluent Release Report of February, 1985 (May 28, 1985). The NBC Staff's answer included the affidavits of Edward F.
Branagan, Jr., Section Leader, Radiological Assessment Branch, Division of Systems Integration, Office of Nuclear Reactor (Footnote Continued)
t On June 4,1985, the presiding Atmic Safety and Licensing Board
(" Licensing Board" or " Board") denied the motion, ruling that it had
^
jurisdiction to consider the requestd!
but holding that ME had failed to satisfy the Cmmission's standards for reopening and the separate standards for late-filed contentions.4/ In denying NE's request, the Licensing Board considered the allegations in its petition as well as its unauthorized reply brief.5_/ In essence, the Licensing Board held (FOObste Continued)
Regulation (May 28, 1985) ("Branagan Affidavit") and Marie T.
Miller, RMiation Specialist, BWR RMiation Safety Section, Bnergency Preparedness and Radiological ProLEction Branch, Division of' Radiation Safety and Safeguards, Region I (May 28, 1985)
(" Miller Affidavit") . Although affidavits are not required in
- responding to a motion to reopen for a new contention, they are appropriate to demonstrate the lack of any safety concerns raised by the intervenor. See Iouisiana Power & Light Cmpany (Waterford Steam Electric Station, Unit 3) , AIAB-753, 18 NBC. 1321, 1327 (1983).
Because of ME's failure to effect proper service, the Licensing
, Board extended the due date for answers. Philadelphia Electric Cmpany (Limerick Generating Station, Units 1 and 2), " Order" (May 4
8, 1985).
- 3/ Limerick, supra, " Memorandum and Order Denying Petition by Anthony /ME to Reopen the Record on the Basis of New Information in. ;
.c Philadelphia Electric Co'.'s Semi-Annual Effluent Release Report, Feb.1985 (June 4,1985) (slip op. at 3-4) (" Memorandum and Order Denying Petition by Anthony /ME to Reopen") . The Licensing Board applied the practical approach which the Atmic Safety and Licensing Appeal Board (" Appeal Board") adopted in Limerick, supra, AIAB-726,17 NBC 755 (1983) .
4/ The Licensing Board correctly held that in order to succeed on its request, ME nust satisfy both the criteria for reopening as well as those for admitting late-filed contentions. Limerick, supra, ,
"Menorandum and Order Denying Petition by Anthony /ME to Reopen" at 10 (June 4,1985), citing Pacific Gas and Electric Cmpany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-82-39,16 NBC 1712, 1714-15 (1982).
S/ Anthony /NE Response to the Board Order of 5/8/85 in Reply to Our j (F000 ste Continued)
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F that "no specific violation of any NPC rule or regulation, the operating licence, or accompanying technical specifications" had been assertedN and that the site boundaries utilized by Applicant in its offsite dose calculation "are appropriate for limiting exposure to radioactive effluents" and " consistent with the Staff's recmmendations in Regulato-ry Guide 1.109, Rev. 1."1!
On June 7, 1985, ME filed an appeal frcm the Licensing Board's denial of its petition to reopen, alleging various grounds for rever-sal.8/ ME did not file an acw=mnying brief, instead, filing a j separate brief on July 2, 1985.E
- ME's brief is practically undecipherable. It fails to discuss in I any meaningful way any errors in the Licensing Board's denial of its contention, including the treatment of the factors relating to the admission of late filed contentions or reopening of the record of the proceeding. Contrary to established precedent, FOE would have the (Footnote Continued)
Petition of 4/30/85 to Reopen the Record on PEX)'s No.1 Effluent Release Reprot [ sic] and Response to Applicant's Answer to Our Petition, S/7/85 (May 14, 1985). Accordingly, the Board also 4
considered Applicant's Response to Robert L. Anthony /ME Unauthorized Reply (May 22, 1985). See Limerick, supra "Menorandum and Order Denying Petition by Anthony /ME to Reopen" at 2, 10-11 (June 4,1985) .
6/ Id. at 7.
7/ Id. at 9.
8/ Anthony /ME Appeal frca ASLB Memorandum and Order of 6/4/85 Denying Our Petition of 4/30/85 to Reopen the Record on Limerick Effluent Releases (June 7,1985) .
9/ Anthony /ME Brief in Support of Our Appeal of 6/7/85 frca ASLB Mem.
& Order of 6/4/85 (July 2,1985) .
.. - . - - - . - - - ~ . .. -- .-
Appeal Board give de novo consideration to the weighing of such fac-tors.E ME argues on appeal matters which were never raised before the Licensing Board. For exartple, the Affidavit of Bruce MolholtE! is presented for the first time although he was identified as an expert by ME in pleadings before the Licensing Board. The affidavit fails to add anything which would raise any challenge to the Licensing Board's decision or to the Applicant's or Staff's technical evaluation related 3
to effluent releases. On appeal, ME raises new arguments which are, at best, peripheral to its originally proposed contention. While such tactics are clearly prohibited,E the major new points raised by ME q on appeal are addressed below.
. Argument I. The Licensing Board Correctly Held That M E had Failed tc Satisfy the Separate Criteria for Reopening a Closed Record and Admitting a Late-Filed Contention.
A.- ME Has Failed to Satisfy the Requirements for Reopening a Closed Record.
In its Memorandum and Order, the Licensing Board extensively discusses each of the safety considerations raised by ME. Its reason-ing, which correctly applied all facts of record to applicable NRC l
M/ South Carolina Electric and Gas Cmpany (Virgil C. Surmer Nuclear Station, Unit 1) , ALAB-642,13 NBC 881, 885 (1981) .
i 11/ See Affidavit of Bruce Molholt (July 2,1985) ("Molholt Affidavit")
(attached to ME Brief) .
M/ Houston Lighting and Power Cmpany (Allens Creek Nuclear Generating
- Station, Unit 1), AIAB-582,
- .1 NBC 239, 242 (1980); Puerto Rico i Electric Power Authority (North Coast Nuclear Plant, Unit 1) ,
AIAB-648,14 NRC 34, 37-38 (1981) .
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regulations and regulatory guidance, is dispositive of each of NE's claims. On appeal, N E does not seriously dispute the Board's findings,
, but relies upon a newly subnitted affidavit by Bruce Molholt, a profes-sor of Health Education at Tenple University. NE also relies upon certain correspondence between the NRC and Applicant, such as licensee event reports and NBC inspection reports.
On the reopening criteria, NE only asserts, adopting its position on " good cause" for lateness for its late filed contention, that it had "no way of knowing the actual effects or extent of radioactivity until PECo's first semi-annual report was issued."E! 'Ihis argument is without merit. As the Board found, the methodology for dose calculation challenged by ME was set forth in the application for operating li-14 censes / and was discussed in detail in Section 5.9 and Appendix D of both the Draft Environmental Statement (" DES") (June 1983) and the Final Environmental Statement ("FES") (April 1984) for Limerick.
Moreover, the basis of the dose calculations contained in the application is Regulatory Guide 1.109, which was last revised in October 1977.EI The methodology required under Regulatory Guide 1.109 was inplemented in Applicant's Offsite Dose Calculation Manual which, as related to the subject matter of the contention, has been unchanged p/ ME Brief at 1.
M/ See Environmental Report - Operating License Stage, Sections 5.2 and 6.1.5 and Final Safety Analysis Report, Chapter 11, and Sections 12.2 - 12.4.
15/ See Regulatory Guide 1.109, " Calculation of Annual Doses to Man frcm Routine Releases of Reactor Effluents for the Purpose of Evaluating Ccmpliance with 10 C.F.R. Part 50, Appendix I."
_=
since subnission to the NRC on Septmber 14,1984.E! This document was approved by the NBC Staff on October 3,1984 and was served on ME at thattime.b In ruling that WE had not raised a significant safety issue, the second reopening criterion, the Licensing Board correctly held that no basis had been shown for ME's assumption that "the calculated dose would be greater at [the railroad right-of-way and the Schuylkill River]
than at the site boundary in the critical sector."E As noted, Appli-cant utilized the methodology contained in Regulatory Guide 1.109. The Molholt Affidavit adds nothing to the proposed contention. The affidavit appears to generally challenge the conclusions of the Limerick FES regarding dose calculations and attack the requirements of exposure criteria under 10 C.F.R. Part 20 and Part 50, Appenduc I.EI In 1_6f 6 See Branagan Affidavit 16.
17/ See Limerick, supra, " Memorandum and Order Denying Petition by Anthony /ME to Reopen" at 6. As in its petition, ME's brief does not assert that Applicant's Seni-Annual Effluent Releases Report (February 1985) raises any concerns regarding the level of effluents or empliance with NRC regulations regarding effluent limits, contrary to a conclusory assertion at one point in its brief, but rather with the methodology for dose calculation. See notes 30 and 32 infra.
H / Limerick, supra, "M morandum and Order Denying Petition by Anthony /ME to Reopen" at 7. The Board therefore properly found that it was appropriate to use site boundaries in calculating dose.
M. at 9. See generally Branagan Affidavit 16.
-19/ 10 C.F.R. S2.758; see generally Philadelphia Electric Cmpany (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1501 (1982); Pacific Gas and Electric Cmpany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-410, 5 NBC 1398, 1402 (1977).
particular, while Dr. Molholt states that "[e]xposure to airborne radionuclides at 270 m, the closest point of access, will be ten times more intense than at either 790 m or 762 m, plant boundaries assumed in J
the Envirorsnental Inpact Statement, assuming a sinple diffusion model, e.g., during meteorological inversion," he makes no assertion that any NRC regulation regarding effluent releases is violated. E mE asserts, for the first time on appeal, that "[f]urther rein-forcement for reopening the record" exists frcan "the record of faulty equipnent and operation at Limerick."2_1/ As mE inplicitly acknowl-edges, none of these matters is relevant to its contention.E! Its claims as to the adequacy of Applicant's management, citing such re-ports, is already the subject of a petition for relief under 10 C.F.R.
S2.206 with the Director, Office of Nuclear Reactor Regulation.E i
20/ Molholt Affidavit 15. Dr. Molholt gives no basis for assuming that an inversion condition exists throughout an entire year at the
. Limerick Station nor is a more sophisticated meteorological 1
analysis such as performed by Applicant or Staff even attenpted.
Dr. Molholt does not rebut the Branagan affidavit at 16 which concludes that occupancy times for the locations along the railroad right-of-way are a "small fraction of a year as cmpared with the i nuch higher occupancy time assuned for the individual at the site boundary."
l g/ mE Brief at 2.
22/ In fact, two of the items relied upon by NE as NBC inspection
, "open" itens providing "[f]urther reinforcenent for reopening the record" (NE Brief at 2) have been closed by the NBC and thus provide no basis for the admission of the contention. Open items 352/84-66-11 and 352/85-21 were closed in Inspection Report 352/85-26, transnitted by letter dated July 2,1985 at 3-4. ME fails to discuss the significance of any of the "open items" in tenns of support for its contention.
-23/ See Petition by Intervenor, R.L. Anthony / Friends of the Earth to the (Footnote Continued)
t On the third reopening criterion, nothing in NE's petition or the Molholt Affidavit alleges, nuch less demonstrates, that Applicant has failed to cmply with applicable regulations, technical specifications or license conditions. 'Ihus, the Licensing Board correc:tly determined that ME had failed to a show that a different result would have been
, reached in this prw ing.
B. FOE Has Also Failed to Meet the Criteria for Admission of a Late-Filed Contention.
On the first factor under 10 C.F.R. 52.714(a) (1) (i)-(v) for acinit-ting late-filed contentions, ME has failed to demonstrate " good cause" for waiting until April 1985 to seek admission of a contention challeng-ing the methodology for dose calculction on the basis of information which was available in the Limerick FES in April 1984 or Applicant's Offsite Dose Calculation Manual, submitted to the NRC on Septaber 14, (Footnote Continued)
Director, Off. of Inspection and Enforcement to Institute Proceedings to Revoke License NPF-27, Issued to PE00; and to Issue an Order to Show Cause Why This License Should not be Revoked (December 23, 1984). ME supplerrented its petition by letter dated February 25, 1985. Responding to the petition, the Director stated in a letter to Mr. Anthony dated February 13, 1985 that the NRC Staff had fully reviewed the matters contained in the various inspection and licensee event reports and that no imediate actions with respect to the facility were justified. Similarly, in a letter dated March 26, 1985, the Director advised Mr. Anthony that no imediate action was justified on the basis of M E's supplemental petition. ME's allegations are now pending before the Director for final disposition under Section 2.206.
ME fails to specify how the " faults in plant and operation" relate to actual or potential offsite releases. As an exanple, the matter discussed in the last paragraph of this section of ME's Brief relates to activities in the drywell of the Peach Botte Atmic Power Station involving pipe replacement while the unit was shutdown, and not to any failure to meet offsite effluent limitations.
l
+-
1984 and approved by the NIC on October 3, 1984.EI The absence of
" good cause" 'is an even more capelling reason for rejecting the con-tention when the evidentiary prMing, as in this case, is virtually atanend.EI
-On the second and fourth factors, the Licensing Board was unable to identify any Wcular " interest" asserted by ME with regard to its p1.W contention, but asstned, arguendo, that there is no other means available to protect it and no'other existing party representing whatev-er its interests may be.EI 'Ihe only " interest" inplicitly asserted by ITE pertains to individuals who happen to frequent areas near Limerick at the railroad right-of-way and Schuylkill River. ME does not assert that. ar.y persons the organization purports to represent has such an 24/ In Catawba, the Camission held that "an intervenor in an NRC pr*ing nust be taken as having accepted the obligation of uncovering information in publicly available documentary material."
It - _ aMad that "[tlaken together, [ administrative hearing]
principles require intervenors to diligently uncover and apply all publicly :available information to the proupt fornulation of contentions." Duke Power Coupany (Catawba Nuclear Station, Units 1 and 2) , CLI-83-19, 17 NRC 1041, 1048 (1983). In that case, the Camission also approved the Appeal Board's three-prong test for
" good cause" on admitting a late-filed contentions, which KE has failed to satisfy here. Catawba, ra, AIAB-687,16 NBC 460, 469 (1982), aff'd in relevant part, 19, 17 NBC 1041, 1047 i- (1983).
g/ Washington Public Power System (WPPSS Nuclear Project No. 3) ,
AIAB-747, 18 NRC 1167, 1173 (1983); Constners Power Ca pany l (Midland Plant, Units 1 and 2), AIAB-624,12 NBC 680, 682 (1980) .
! 26/ Limerick, supra, "Manorandtn and Order Denying Petition by l
Anthony /ftE to Roopen" at 11-12 (June 4,1985) .
f
interest.EI Accordingly, the second and fourth factors for admitting late-filed contentions weigh against ME.E In an atternpt to cure its shortccmings on the third factor, NE has subnitted the Molholt Affidavit on appeal. 'Ihe only portion of the affidavit, however, relevant to the generalized NE concerns is the affiant's opinion that "[t]here is no reason to assume that a given individual would spend more time at 790 m or 762 m than at 270 m or other proximal [ sic] points along the Schuylkill River."E This sp e lative conclusion, which lacks any basis and apparently challenges the methodology approved in Regulatory Guide 1.109, does not demonstrate
-27/ At most, NE claims that Mr. Anthony has "on several occasions walked along the railroad right-of-way to observe the Limerick plant." NE Brief at 2. This is hardly sufficient to establish a cognizable interest.
g/ As F0E recognized in subnitting its petition for relief under 10 C.F.R. S2.206, the NBC Staff is the appropriate entity under the regulations to address its concerns regarding matters discussed in inspection reports and licensee event reports. See rote 23, supra.
In North Anna, the Appeal Board denied reopening for a new contention on the ground that petitioner's request " falls within the staff's bailiwick" and can be treated as a request pursuant to Section 2.206 " subject to full ventilation and the grant of such relief as might be warranted by the disclosures of record."
Virginia Electric and Power Canpany (North Anna Nuclear Power Station, Units 1 and 2), ALAB-551, 9 NBC 704, 709 (1979) . See also Florida Power and Light Ccmpany (St. Lucie Nuclear Power Plant, Unit No. 2) , ALAB-579,11 NaC 223, 226 (1980) . Thus, although the availability of relief under Section 2.206 is not equivalent to admission of a contention, it is an adequate and appropriate "other means" to protect a petitioner's interest.
29/ Molholt Affidavit 15.
that NE's participation may reasonably be expected to assist in developing a sound record.E/
On the fifth factor, it is indisputable that reopening the record to admit a new contention at this very late stage will indisputably delay the proceeding and broaden the issues.AI Thus, N E has failed to satisfy the requirements for admitting a late-filed contention.
-30/ See generally Mississippi Power & Light Ccmpany (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704,16 NBC 1725,1730 (1982) . See also WPPSS, supra, ALAB-747,18 NBC 1167,1177 (1983); Long Island Lighting Ccmpany (Shoreham Nuclear Power Station, Unit 1) ,
ALAB-743,18 NBC 387, 399 (1983) .
'Ihe matters raised in the Molholt Affidavit concerning tritium and Fe-55 also do not support the admission of the late filed contention. Even the maximum tritium sanple of 240 pCi/ liter reported in the Molholt Affidavit is .008% of the corresponding maximum concentration contained in Part 20, Appendix B, Table II, Column 2. It should be noted that the values presented in Dr.
Molholt's table are essentially background values while Table II values are concentrations above natural background. With regard to Fe-55, no basis is given by ME for the assertion that an
" accidental dunping of floor drains" had occurred at Limerick.
Molholt Affidavit 19. Moreover, as may be seen frcan Note 1 to Table A contained in the Semi-Annual Effluent Releases Report No.
1, December 22, 1984 Through December 31, 1984, all liquid effluents released represent .000179% of the quarterly limit for total body exposure and .000326% for any organ exposure.
31,/ The only remaining matter for disposition involves two contentions by the Graterford imates. See note 25 supra and acccmpanying text. On July 15, 1985, the Licensing Board ccmpleted the hearing on this matter on July 16, 1985 and held oral argument on July 17, 1985. See Limerick, supra, " Memorandum and Order - Graterford Contentions and Hearing Schedule" (June 18, 1985) (slip op. at 3-4). Accordingly, there is no merit to LFA's claim that litigation of its additional contention would not hold up issuance of a full power license. In any event, the fifth factor involves delay of the proceeding, not delay in the issuance of a license or operation of the facility. Detroit Edison Ccmpany (Enrico Fermi Atcmic Power Plant, Unit 2), ALAB-707,16 NBC 1760,1766 (1982) .
C. N E Has Not Stated Any Contention with specificity and Bases.
Additionally, NE has failed to meet the requirements of 10 C.F.R.
S2.714(b) for filing contentions with the requisite bases and speci-ficity. As noted, ME attempted to cure this deficiency with the Molholt Affidavit, but very little of the affidavit relates to the originally subnitted ME concerns.E Nowhere has NE stated the precise wording of the contention it desired the Licensing Board to admit. The Board was certainly not obliged to draft ME's proposed contention.
Moreover, as the Appeal Board held in Waterford, the "new material in support of a motion to reopen nust be set forth with a degree of particularity in excess of the basis and specificity requirements contained in 10 C.F.R. 2.714 (b) for admissible contentions." Such information "must be tantamount to evidence" and, therefore, "must possess the attributes set forth in 10 C.F.R. 2.743 (c) ."EI No such
" evidence" has been subnitted by N E.
-32/ For exanple, the Molholt Affidavit alleges at 16 that "[1]iquid radioactive exposure fran fish will be more intense than calculated, if fish are constuned the day of the catch." However, Dr. Molholt fails to allege that such an assunption is warranted or that any NRC regulation would be violated if fish were consuned the day of the catch. Neither does he address the Branagan Affidavit which at 18 addressed this argument.
H/ Waterford, supra, ALAB-786, 20 NBC 1087,1090 n.4, cuoting Diablo Canyon, supra, ALAB-775, 19 NRC 1361, 1366-67 (1934) (enphasis added).
II. The Appeal Board Should Strike N E's Brief
. As Untimely and' Dismiss the Appeal.
Under the Camission's Rules of Practice, different appeal and briefing periods apply, depending upon the nature of the decision which is appealed. In this instance, ME appeals the denial of a late-filed contention. Normally, such an order would be interlocutory, but where, as here, a licensing board has issued an initial decision or partial initial decisions such that only an unrelated matter remains to be litigated,E an appeal appears permissible under 10 C.F.R. S2.714a.
Under Section 2.714a (a) , any such appeal "shall be asserted by the filing of a notice of appeal and acompanying supporting brief."
Inasmuch as F0E did not file its brief until almost a month later, it is 3i/ See Limerick, supra, ALAB-806, 21 NRC (May 1, 1985)
(reinstating Graterford Irrnates as an intervenor); Limerick, supra,
" Order" (April 23, 1985); Limerick, supra, " Order Admitting Certain i Revised Contentions of the Graterford Irvnates and Denying Others" j- (June 12,1985) .
I l
r-untimely.E The Appeal Board should dismiss the appeal.
Conclusion For the reasons discussed above, the Licensing Board properly denied NE's petition and correctly applied the Ccanission's standards i
for reopening a record, the factors for admitting a late-filed con-tention, and the basis and specificity requirements for admission of contentions generally. The decision of the Board should therefore be affirned.
Respectfully subnitted, CONNER & , P.C.
4 14 Troy B. Conner, Jr.
Mark J. Wetterhahn Robert M. Rader Counsel for the Applicant July 17, 1985 M/ The appeal period under 10 C.F.R. 52.762(b) is inapplicable. The Licensing Board's denial of ME's request to reopen did not constitute an initial decision. Nor did any of the Board's three partial initial decisions enccupass or relate to the order denying reopening. This is demonstrated by the new and different subject matter of the proposed reopening and the Board's use of a separate Mcnorandum and Order to deny ME's motion a month after its Third Partial Initial Decision. See Limerick, supra, LBP-85-14, 21 NRC (May 2, 1985) . This is to be contrasted with the procedure utilized previously in this proceeding pursuant to 10 C.F.R. 52.762 for appellate review of two contentions denied by the Licensing Board on remand frcm the Appeal Board as a direct result of review of an initial decision. See, for exanple, Notice of Appeal filed by Del-Aware Unlimited, Inc. (Novernber 26, 1984).
DOCKETED UNITED STATES'OF AMERICA USMC NUCLEAR REGULATORY COMMISSION
.Before the Atomic Safety and Licensing Appeal BdMidda.19 N0:36 n the Matter of )
0FFICE OF SECRt:1ARY
)
Philadelphia Electric Company ) Docket Nos. 50 00CRETING 352 BRANCH & SERVIC
) 50-353 (Limerick Generating Station,- )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Brief in Opposition to Appeal by Anthony / Friends of the Earth from the Memorandum and Order, Dated June 4, 1985, Denying Its Motion to Reopen the Record for Admission of a New Effluent Release Contention," dated July 17, 1985 in the captioned matter, have been served upon the following by deposit in the United States mail this 17th day of July, 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 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 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 Washington, D.C. 20555
t Ann P. Hodgdon, Esq. Angus Love, Esq.
Counsel for NRC Staff 107 East Main Street 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 Basement, Transportation Philadelphia Electric Company and Safety Building ATTN: Edward G. Bauer, Jr. Harrisburg, PA 17120 Vice President &
General Counsel Kathryn S. Lewis, Esq. City 2301 Market Street of Philadelphia Municipal Philadelphia, PA 19101 Services Bldg. 15,th and JFK Blvd. Philadelphia, PA Mr. Frank R. Romano 19107 61 Forest Avenue Ambler, Pennsylvania 19002 Spence W. Perry, Esq.
Associate General Counsel Mr. Robert L. Anthony Federal Emergency Friends of the Earth of Management Agency the Delaware Valley 500 C Street, S.W., Rm. 840 106 Vernon Lane, Box 186 Washington, DC 20472 Moylan, Pennsylvania 19065 Thomas Gerusky, Director Miss Phyllis Zitzer Bureau of Radiation Limerick Ecology Action Protection P.O. Box 761 Department of Environmental 762 Queen Street Resources Pottstown, PA 19464 5th Floor, Fulton Bank Bldg.
Third and Locust Streets Charles W. Elliott, Esq. Harrisburg, PA 17120 325 N. 10th Street Easton, PA 18042 James Wiggins Senior Resident Inspector Jay M. Gutierrez, Esq. U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission P.O. Box 47 Region I Sanatoga, PA 19464 631 Park Avenue King of Prussia, PA 19406
.s Zori G. Ferkin Commonwealth of Pennsylvania Governor's Energy Council P.O. Box 8010 1625 N. Front Street Harrisburg, PA .17102 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 Harrisburg, PA 17120 i
Mark U. Wetterhahn