ML20133L899

Response Opposing Friends of the Earth 850801 Petition for Stay of Board 850722 Fourth Partial Initial Decision Authorizing Issuance of Full Power License.Certificate of Svc Encl

ML20133L899
Person / Time
Site:	Limerick
Issue date:	08/09/1985
From:	Rader R CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#385-187 OL, NUDOCS 8508120767
Download: ML20133L899 (13)

Text

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l UNITED STA11CS OF AMERICA NUCLEAR REGUDGORY COPHISSION l 00tKETED .

Before the At mic Safety and Licensing Appeal Board USt4RC  !

' In the Matter of ) f

) *$$ $6 12 b l0 !

Philadelphia Electric Capany ) Docket Nos. 50-352 0 '

! (Limerick Generating Station, ) [ckttG SE V Units 1 and 2) ) BRANCH ,j LICENSEE'S OPPOSITION 10 PETITION BY FRIENDS OF THE EARTH FOR A STAY OF 1NE A10MIC SAFErY ABD LICENSING $

BOARD'S AUTHORIZATION ICR ISSUANCE OF A EULL-POWER OPERATING LICENSE .

Preliminary Statament l

On July 22, 1985, the presiding Atmic Safety and Licensing Board i l

(" Licensing Board") issued its Fourth Partial Initial Decision, stating  ;

l l that "the Director of Nuclear Beactor Regulation is authorized to issue '

a full-power operating license for the Limerick Generating Station, Units 1 and 2, consistent with the Board's decisions in this case and upon making requisite findings with respect to matters not embraced in

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l the Third Partial Initial Decision on Offsite Emergency Planning or in i this decision."1/ On August 1,1985, intervenor Friends of the Earth I

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1/ Philadelphia Electric Ca pany (Limerick Generating Station, Units 1 and 2) , " Fourth Partial Initial Decision (On Offsite Dnergency l Planning Contentions Contention Relating to Graterford)" (July 22, 1985) (slip op. at 25) (" Fourth PID"). The Fourth PID disposed of i the only two remaining contested issues in the pr W ing, both of t which related to amargency planning and preparedness for the State Correctional Institution at Graterford ("Graterford") .

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("NE") petitioned for a stay of the authorization for issuance of a full-power operating license.2_/

ME has demonstrated no standing to appeal or request a stay of the Fourth PID. Although ME purports to base its claims upon aspects of the Fourth PID, its stay request sinply reiterates issues it has raised on appeal frm the Third Partial Initial Decisiond! and otherwise.A!

In effect, NE is attspting to utilize the Fourth PID as an excuse for an untimely request to stay the Third PID. NE also cites certain matters unrelated to any contentions which it has raised before the Nuclear Regulatory Cmmission ("NFC" or "Comnission") . Yet it offers no explanation as to how the Atcmic Safety and Licensing Appeal Board

(" Appeal Board") could exercise jurisdiction over uncontested matters which the Ccamission has delegated to the NRC Staff.

Moreover, possible consideration of a stay by the Appeal Board has been superseded by action of the Cmmissioners, who met and voted on August 8, 1985 to authorize issuance of the full-power license.1/ In any event, NE has failed to meet its heavy burden for issuance of a 2/ By Order dated August 6, 1985, the Appeal Board required all replies to IVE's stay petition to be received by August 12, 1985.

3/ Limerick, supra, LDP-85-14, 21 NTC (May 2, 1985) (" Third PID").

A/ NE also bases its stay request upon the Licensing Board's denial of a late-filed contention on effluent releases. See Limerick, supra, horandum and Order Denying Petition by Anthony /WE to Reopen the Record on the Basis of New Information in Philadelphia Co.'s Sati-Annual Effluent Release Report, Feb. 1985" (June 4, 1985).

5/ _ Limerick, supra, CLI-85-15, 22 NRC (August 8, 1985).

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stay under the four criteria of 10 C.F.R. 52.788. Accordingly, Licensee opposes N E's petition for a stay and requests that it be denied.

Argument I. NE Lacks Standing to Appeal the Fourth PID or Request a Stay of that Decision.

FOE did not participate in the litigation of either contention related to emergency planning and preparedness for Graterford, nor has it pleaded any cognizable legal interest in the matter.1/ ME's only admitted contention on mergency planning asserted that the l Limerick EPZ should be expanded or that sme other form of planning should consider the special needs of certain areas beyond the EPZ. -

The Ccmmission's rules expressly state that intervenor standing depends upon a showing of a petitioner's particular interest in the proceeding, how that interest may be affected, and the specific 6/ On July 25, 1985, NE filed what purported to be proposed findings on the Graterford contentions, despite the fact that FOE did not appear at the hearing. The proposed findings pestdated issuance of the Fourth PID by three days and were filed well after July 16, 1985, the last day of hearings on the Graterford contentions, which had been designated as the deadline for filing written proposed findings. See Limerick, supra, "Menorandum and Order - Graterford Contentions and liearing Schedule" (June 18, 1985) (slip op. at 3);

Tr. 21015-16. None of ME's proposed findings actually related to emergency planning and preparedness at Graterford, auch less the two specific contentions. Rather, FOE sumarized its basic opposition to the full-power licensing of Limerick.

7/ Noting that FOE appealed the Fourth PID by means of a postcard mailed July 31, 1985, the Appeal Board stated that its acceptance of the notice of appeal "does not reflect any judgment on the standing of Anthony / ME to appeal the decision in question."

Limerick, supra, " Order" (August 5,1985) (slip op. at 3 n.4).

8_/ See note 14 and accmpanying text, infra. See generally Limerick, supra, LDP-84-18, 19 NBC 1020, 1065-69 (1984).

0 l aspect (s) of the proceeding which the petition wishes to litigate.EI The Ccenission has held that an assertion of " injury in fact" to the petitioner himself, and not a generalized grievance shared by a large class of the public, is necessary for standing.E I Contrary to the requirement of the regulations and Ccmnission precedent, ME has set forth no interest which would permit it to i challenge the adequacy of energency planning and preparedness for the I

l Graterford inmates. Indeed, nothing asserted by ME in its stay request even peripherally relates to Graterford, demanstrating its total absence of any legal interest in the matter. Rather, NE's petition simply reflects generalized opposition to the issuance of a full-power operat- i ing license for Limerick. l As the Appeal Board stated in Prairie Island, the right of an intervenor "to seek appellate redress of asserted Board error" is limited to issues "within the ambit of his interest as established by his intervention petition"El Similarly, in Allens Creek, the Appeal 9_/ 10 C.F.R. SS2.714(a) (2) and (d) .

-10/ In Transnuclear, Inc., CLI-77-24, 6 NBC 525, 530-31 (1977), the Ccmnission adopted the federal standard that "a party seeking relief must ' allege sczne threatened or actual injury resulting frcm the putatively illegal action before a federal court may assume jurisdiction.'" See also Westinghouse Electric _ Corp. (Exports to South Korea), CLI-80-30,12 NBC 253, 258 (1980) (an organization's abstract concern does not substitute for the concrete injury required for standing); Nuclear Engineering Carpany (Sheffield, Illinois, Iow-Iavel Radioactive Waste Disposal Site), ALAB-473, 7 NBC 737, 741, 743 (1978) (petitioner failed to identify any specific injury that it or its mernbers would or might sustain) .

M/ Northern States Power Conpany (Prairie Island Nuclear Generating Plant, Units 1 and 2) , ALAB-244, 8 AEC 857, 863 (1974) .

1 -S-O f Board denied an interlocutory appeal on the ground that the intervenor "has no standing to press before this Board the grievances of other parties to the proceeding who are not represented by him . . . . Nor is 1

he entitled to cmplain himself of a licensing board ruling unless and i

1 until that ruling unless and until that ruling has worked a concrete injury to his personal interests."NI Accordingly, as a threshold l

matter, the Appeal Board should find that ME lacks standing to appeal the Fourth PID or request a stay of that decision.

l II. 'Ihe Cmmission has Already Determined that i Issuance of a Full-Power Operating License l Should No Ionger be Stayed.

l A licensing board's order authorizing issuance of 'a full-power operating license is autcmatically stayed under 10 C.F.R. 52.764(f) (2) until the Cmmissioners have cmpleted their "inmediate effectiveness" I review. In this proceeding, the autcmatic stay under the regulations l i had been in effect since issuance of the Fourth PID on July 22, 1985.

At its meeting on August 8, 1985, the Cmmissioners empleted their "inmediate effectiveness" review by voting to authorize issuance of the I full-power operating license for Limerick, Unit 1. Given this decision by the Cmmissioners, the Appeal Board lacks authority to make any i contrarydetermination.E l

M/ Houston Lighting & Power Cmpany (Allens Creek Nuclear Generating Station, Unit No. 1) , ALAB-631, 13 NRC 87, 89 (1981). See also Puget Sound Power and Light Cmpany (Skagit Nuclear Power Project, Units 1 and 2) , ALAB-556,10 NBC 30, 32-33 (1979) (intervenors who do not assert any invasion of their own rights are not clothed with authority to speak for others) .

-13/ Iong Island Lighting #Ermpany (Shoreham Nuclear Power Station, Unit (Footnote Continued)

ME purports to base its stay request upon the Fourth PID, but its petition clearly indicates that ME's principal claim is alleged error in the Third PID concerning the Ccmnonwealth of Pennsylvania's desig-I nation of boundaries for the plume exposure pathway emergency planning zone ("EPZ") around the Limerick facility. There is no merit to ME's claim. Nor does it raise any potential hann, let alone irreparable harm, to the public health and safety. The EPZ boundaries for Limerick were delineated by the Pennsylvania Emergency k nagement Agency in consultation with county and municipal planners, as contemplated by the regulations.14/

In conducting its "inmediate effectiveness" review, the Ccmmission found nothing in the Third PID which would warrant staying its effec-tiveness.15/ The Ccmnission again denied a stay request of even a very (Footnote Continued)

1) , ALAB-810, 21 NRC (June 19, 1985) (slip op. at 4) . See also Mississippi Power & Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1732 n.9 (1982). Put differently, the decision by the Ccmmission to lift the autcnatic stay and authorize issuance of the full-power operating license mooted any claim by NE for a stay. As the Ccmnission Mld in Indian Point, moot legal issues need not be decided. Consolidated Edison Ccupany of New York, Inc. (Indian Point, Unit No. 2) ,

CLI-81-7,13 NRC 448, 449 (1981) .

M/ See 10 C.F.R. S50.47(c) (2) ; 44 C.F.R. S350.7(b). The Licensing Board considered the joint contention by ME and Limerick Ecology Action (" LEA") that certain areas outside the Limerick EPZ should be included within the EPZ boundaries, but found "that in the absence of any affirmative showing that the Marsh Creek State Park /Exton area or the Valley Forge / King of Prussia area should be included within the Dnergency Planning Zone, there is no reason to so include them." Third PID at 73.

_15] Limerick, supra, CLI-85-13, 22 NRC (July 24,1985) . Although afforded the opportunity by the regulations, FOE apparently did not file ccmments with the Ccanission. It is not the Appeal Board's (Footnote Continued) l l

)

limited duration at the time it authorized issuance of the full-power operating license on August 8, 1985.16/ Moreover, the Appeal Board denied the motion by LEA for a stay of the Third PID. Accordingly, both the Comission and the Appeal Board have already determined that there is no basis for staying the effectiveness of the Third PID.

Finally, N E's stay request based on the Third PID is untimely filed.E III. M E has not Satisfied the Requirements for a Stay.

Even if the Appeal Board should determine that ME has standing to seek a stay and that the Board has authority to issue a stay, EE's petition lacks any substance and provides no legal or factual basis for issuing a stay pursuant to the four criteria of 10 C.F.R. 52.788. For the sake of arevity, Licensee incorporates the points and authorities contained in its opposition to the similar request by LEA for a stay of the Second and Third PID's,E which the Appeal Board denied in (Footnote Continued) responsibility to consider arguments ME elected not to make before the Ccmnission when afforded the opportunity.

16/ Limerick, supra, CLI-85-18, 22 NBC (August 8,1985) (slip op.

at 10).

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17/ Limerick, supra, AIAB-808, 21 NRC (June 11, 1985). The Camission declined review of AIAB-808, which thereby became final agency action on July 25, 1985.

M/ The 'Ihird PID was served May 7,1985. Under 10 C.F.R. S2.788(a) ,

any stay request related to that decision should have been filed within ten days after service, i.e., by May 22, 1985.

M/ See Applicant's Brief in Opposition to Request by Limerick Ecology Action for a Stay of the Licensing Board's Second and Third Partial Initial Decisions (May 28, 1985). In denying LEA's request for a stay in AIAB-808, the Appeal Board observed that LEA had "not made the required ' strong' showing on any of its arguments" and that its (Footnote Continued)

AIAB-808.EI %e same legal principles and conclusions require denial of N E's instant request for a stay.

In essence, ME has merely enumerated previous filings with the Licensing Board as well as the Director, Office of Nuclear Reactor Regulation, pursuant to 10 C.F.R. S2.206. Even if the Appeal Board were to review the various pleaded allegations of error incorporated by reference, ME has raised no issue regarding its litigated contention with potential inpact upon the public health and safety.bI Further, NE has deonstrated no basis for the Appeal Board to assume jurisdic-

! tion over matters the Ccumission has expressly delegated to its StaffE 1

(Footnote Continued) i argtanents of irreparable harm "are rather generalized and unpersuasive." Limerick, supra, ALAB-808, 21 NBC (June 11, 1985) (slip op. at 5, 8). NE's generalizations are even less persuasive.

4 R / See note 17, supra.

A/ See note 14 and acccmpanying text, supra. Licensee has addressed NE's specific concern regarding the plume exposure pathway EPZ boundaries for Limerick in its brief opposing the appeals frm the Wird PID. See Applicant's Brief in Opposition to Appeals by Limerick Ecology Action, Inc. and Friends of the Earth Relating to

the Atmic Safety and Licensing Board's Third Partial Initial Decision at 54-56 (August 6,1985) . .Likewise, the points discussed in ME's appeal of its late-filed contention regarding Limerick effluent releases have been fully addressed by Licensee. See Applicant's Brief in Opposition to Appeal by Anthony / Friends of the Earth frm the Memorandum and Order, Dated June 4, 1985, Denying its Motion to Reopen the Record for Admission of a New Effluent Release Contention (July 17, 1985).

22/ ME notes that it opposed Licensee's request for an exemption fra the requirement of 10 C.F.R. Part 50, Appendix E, Section IV.F.1, for the conduct of a full participation exercise within one year before issuance of a full-power operating license. The Ccmmission determined that "no adjudicatory hearing is required" on the i request and that, therefore, "it is appropriate to refer the i initial evaluation and decision on this notion to the Director of (Footnote Continued) i

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or other matters decided by the Staff pursuant to requests for relief under 10 C.F.R. 52.206.23/ Nor has EDE shown any substantive basis for relief even if jurisdiction existed.

Conclusion For the reasons discussed above, the Appeal Board is bound by the decisions of the Cmmission regarding the innediate effectiveness of the

'Ihird and Fourth PID's. Further, EDE lacks standing and has raised no matter of substance which shows a strong likelihood of ultimate success (Footnote Continued)

Nuclear Reactor Regulation," subject to review by the Cmmission "in the course of its full-power effectiveness review." Limerick, supra, " Order" (July 24, 1985) (slip op. at 1-2) .

2_3/

3 In a petition under 10 C.F.R. S2.206, FOE questioned the grant of exemptions to Licensee by the NFC. Its claims have been found by the Director, Office of Nuclear Reactor Regulation, to lack merit.

See Limerick, supra, DD-85-11, 22 NFC (July 29,1985) (slip op, at 5-13) . The notice in the Federal Register cited by EDE merely states the Castission's determination not to prepare an environmental impact statenent based upon its conclusion that the requested grant of the exemtions will not have a significant effect on the quality of the human environment. See 50 Fed. Reg. 27388, 27390 (July 2, 1985). On July 26, 1985, FOE filed a purported " appeal" to the Cmmission regarding the grant of the exsptions. Under 10 C.F.R. 52.206(c) (2), however, the denial of a Section 2.206 petition is not appealable. The Cmmission reviews such action at its discretion.

FOE's reliance upon its petition dated April 5, 1985 to revoke the low-power operating license for Limerick, Unit 1, is also without merit. That request was treated as a reiteration of EDE's pending request under 10 C.F.R. S2.206 with respect to the institution of show cause proceedings, initially filed by EDE on Decenber 23, 1984. After thorough consideration of all matters alleged by EDE, the Director concluded that nothing raised by EDE warrants the initiation of enforcement proceedings. Limerick, supra, DD-85-ll, 22 NRC (July 29,1985) (slip op. at 38) .

s on the merits of its appeals or otherwise satisfies the requirements for issuance of a stay.E Accordingly, its request should be denied.

Respectfully subnitted, CONNER & WETIERHAHN, P.C.

Troy B. Conner, Jr.

Robert M. Rader Counsel for the Licensee August 9, 1985 M/ Given the obvious jurisdictional infirmities in its stay request and the total absence of any showing on the merits by EDE, Licensee believes that the Appeal Boani need not reach any finding on the three remaining stay criteria. See Shoreham, supra, ALAB-810, 21 NBC (June 19, 1985) (slip op. at 6-7). Nonetheless, the Appeal Board's findings on those factors in ' denying LEA's stay request are equally applicable here. See Limerick, supra, AIAB-808, 21 NRC (June 11,1985) (slip op. at 8-12) .

a s

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensin' Appeal Board In the Matter of )

) DOCKETED Philadelphia Electric Company "

) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, ) T5 AW 12 A10:10 Units 1 and 2) )

0FFICE OF SECRt. TAP !

CERTIFICATE OF SERVICE 00CKET t G gjERVIU.

I hereby certify that copies of " Licensee's Opposition to Petition by Friends of the Earth for a Stay of the Atomic Safety and Licensing Board's Authorization for Issuance of a Full-Power Operation License," dated August 9, 1985 in the captioned matter, have been served upon the following by deposit in the United States mail this 9th day of August, 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 i

• 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 Commission Atomic Safety and Licensing Washington, D.C. 20555 Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Hand Delivery

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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. 15th 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 Co;amission Commission P.O. Box 47 Region I Sanatoga, PA 19464 631 Park Avenue King of Prussia, PA 19406

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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 b -

Robert M. Rader f

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