ML20133P516

Answer to Rl Anthony/Friends of the Earth 850801 Petition for Stay of ASLB 850722 Order Authorizing Issuance of Full Power License.Request Should Be Denied.W/Certificate of Svc

ML20133P516
Person / Time
Site:	Limerick
Issue date:	08/12/1985
From:	Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#385-206 OL, NUDOCS 8508140348
Download: ML20133P516 (13)

Text

UtilTED STATES OF Af; ERICA NUCLEAR REGULATORY COM!'ISSI0ft DOC *ETED ust.3C BEFO:E THE ATCMIC SAFETY Al;D LICE!;SII;G APPEAL BOARD

'85 AUS 13 P3:53 In the Matter of ) g77;.;g ,;g gge ,

) 00CKETi!4G & SERVI '

PHILADELPHIA ELECTRIC COMPAfiY ) Docket f!os. 50-352 B" ANCH

) 50-353 (Limerick Generating Station, ) db Units 1 and 2) )

f;RC STAFF'S ANSk'ER TO R. L. arith 0liY/F0E'S PETITION FOR A STAY CF THE LICEi!SIf;G BOARD'S ORDER OF JULY 22, 1985 AUTHORIZIliG THE ISSUAf;CE OF A FULL POWER LICENSE FOR LIMERICK Eenjamin H. Vogler Counsel for liRC Staff fugust 12, 1SE5 8508140348 8508 2

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station,- )

Units 1 and 2) )

NRC STAFF'S ANSWER TO R. L. ANTHONY /F0E'S PETITION FOR A STAY OF THE LICENSING BOARD'S ORDER OF JULY 22, 1985 AUTHORIZING THE ISSUANCE OF A FULL POWER LICENSE FOR LIMERICK I. INTRODUCTION On August 1, 1985 R. L. Anthony /F0E petitioned the Appeal Board for an immediate stay of the Licensing Board's Fourth Partial Initial Deci-

,-sion, which authorized the issuance of a full pcwer license for Limerick Units 1 and 2. On August 6, 1985 the Appeal Board directed that all replies to the Anthony /F0E motion should be received no later than the close of business (5:00 p.m.) August 12, 1985. S/ or F the reasons set forth below, the NRC staff (Staff) opposes the Anthony /F0E (F0E) petition for a stay. ,

II. BACKGROUND On July 22, 1985 the Atomic Safety and Licensing Board issued its Fourth Partial Initial Decision in this proceeding. This Partial Initial If Philadelphia Electric Company (Linerick Generating Statien, Units 1 and 2), Order (unpublished), (August 6, 1985).

Decision (PID) relates to the offsite emergency planning contentions of the inmates of the State Correctional Institution at Graterford. All of the other emergency planning contentions raised in this proceeding were considered and disposed of in the Licensing Board's Third Partial Initial Decision. .LBP-85-14, 21 NRC (May 2, 1985). Appeals from the Licens-ing Board's Third PID are now pending. In its Fourth PID, the Licensing Board resolved in favor of the Applicant the two admitted contentions raised by the inmates at Graterford. The decision also authorized the Director of Nuclear Reactor Regulation "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 find-ings with respect to matters not embraced in the Third Partial Initial

. Decision on Offsite Emergency Planning or in this decision." PID at 25. 2/

III. DISCUSSI0t1 The requirements for determining whether to grant or deny a stay are In deciding whether a petitioner contained in 10 C.F.R. ! 2.788(e). U

-2/ After being briefed on the uncontested issues, the Commission in a Memorandum and Order, dated August 8, 1985, determined, pursuant to 10 C.F.R. 5 2.764, that a stay of the effectiveness of the Fourth CLI-85-15, 22 NRC (August 8, 1985).

PID was not warranted.

3/ 10 C.F.R. 5 2.788(e) states:

(e) In determining whether to grant or deny an applica-tion for a stay, the Commission, Atcmic Safety and Li-(FOOTNOTE CONTINUED ON NEXT PAGE) o

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has satisfied the criteria of 10 C.F.R. $ 2.788(e), it must be recognized that:

The burden of persuasion on these. factors rests on the moving party.. While no single factor is dispositive, the most cru-cial is whether irreparable injury will be incurred by.the movant absent a stay. To meet the standard of making a strong showing that it is likely to prevail on the merits of its appeal, the movant must do more than merely establish possible grounds for appeal. In addition, an " overwhelming showing of likelihood of success on the merits" is necessary to obtain a stay where the showing on the other three factors is weak.

' Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2),

CLI-81-27,14 HRC 795, 797 (1981) (footnotes omitted); see also, Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 ano 2), ALAB-437, 6 NRC 630, 632 (1977); Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-789, 20 NRC l

(FOOTNOTE CONTINUED FR0f1 PREVIOUS PAGE) censing Appeal Board, or presiding officer will consider:

(1) Whether the moving party has cade a strong showing that it is likely to prevail en the merits; (2) Whether the party will be irreparably injured un-less a stay is granted; (3) Whether the granting of a stay would harm other parties; and (4) Where the public interest lies.

4 1443, 1446 (1984). The Staff will address each of the four factors found in10C.F.R.s2.788(e) inturn.S/

1. Likelihood of Prevailina on the Merits In its first paragraph, captioned " Strong Showing On the Mer-its", F0E asserts -- without any citations to the record -- that the Fcurth PID is " legally flawed" in that it did not ccnsider the require-ments of 44 C.F.R. ! 350.7(b) which provide that:

The exact size and configuration of the EPZs surrcunding a particular nuclear power plant facility shall be determined by State and local goverr.ments in consultation with FEMA Specifically, F0E asserts that " FEMA disclaimed any connection with set-ting up the EPZ [and that] [t]he wording above 'shall be determined' does not allow any exception to this by FEMA or NRC." Petition at 1. F0E further asserts that [the above regulation] is a requirement in offsite planning [and] [i]n neither the 4th or the 3rd PID did [the Licensing Board] consider this, making both decisions flawed." Id. h'e cannot agree.

Unlike the regulation of the Federal Emergency Management Agen-cy cited above by F0E, the regulations of the NRC regarding the estab-lishment of the Emergency Planning Zone (EPZ) do not contain the express requiren,ent for " consultation with FEMA". See e.g., 10 C.F.R.

!! 50.33(g), 50.47(c)(2), Part 50, Appendix E. Hewever, under the Com-4/ In addressing F0E's request for a stay of the Fourth PID cn the merits, the Staff does not suggest that F0E has standing to appeal the findings and conclusions of the Fourth PID with respect to the Graterford Ir. nates. F0E's standing in this regard will be addressed by the Staff in its response to the appeals from the Fourth PID.

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mission's regulations (10 C.F.R. S 50.33(g)) the Applicant for a nuclear pcwer reactor must " submit radiological emergency response plans of State and local governmental entities . . . that are wholly or partially within the plume exposure pathway Emergency Planning Zone (EPZ) . . . ." The regulation further states that "[g]enerally, the plume exposure pathway EPZ for nuclear power reactors shall consist of an area about 10 miles (16 km) in radius [but that] [t]he exact size and configuration of the EPZs surrounding a particular nuclear power reactor shall be determined in relation to the local emergency response needs and capabilities Id. Upon receipt of the offsite emergency plans, the Memoran-dum of Understanding entered into between the NRC and FEMA provides that the plans will then be reviewed by FEMA for their acequacy. 50 Fed.

Reg. 154E5 (1985).

In the present proceeding, FEKA has testified that as part of this review, FEMA's Regional Assistance Committee has reviewed the EPZ developed for the Limerick facility and has no reason to believe that it is not appropriately drawn. See, Tr. 20,233-234; 20,242-243; 20,246; 20,287; 20,293-294 Thus, the cooperative effort sought by F0E has in fact occurred, and F0E's concern that FEMA has not fully perforced its responsibilities regarding the establishment of the EPZ is without merit. E/

5/ F0E also asserts that "[w]e are certain that we will prevail on our appcal to the Director, FEMA, of 6/25/85 and that the Director will withdraw FEMA approval of emergency plans fcr the whole EPZ and Graterford." Fetition at 1. While we, of course, do not know hcw the Director of FEMA will respond to FCE's appeal, F0E's unsup-ported anticipation, standing alone, does not provide a sufficient basis for a stay of the Licensing Board's decision.

O Similarly, F0E's unsupported belief that it will prevail on its pending appeal of the Licensing Board's denial of its petition to reopen the record in this proceeding provides no basis upon which to grant this present Petition. In its June 4, 1985 decision, the Licensing Board re-jected F0E's motion to reopen the record based on Applicant's Semi-Annual Effluent Release Report and concluded that F0E had "(1) failed to make the showing required of a party seeking to recpen the record; and (2) failed to satisfy the five factors for admission of a late-filed  ;

contention and the basis and specificity requirements for admission of a contention." Memorandum and Order at 13. FCE's present argument here, stating only that "[w]e believe that the Board will reverse [the Licens-ing Board's] decision and order the record reopened, making the issuance of a license impossible before the results of a hearing on the matter are issued" (Petition at 1) is neither helpful ner persuasive and provides little to support its " Strong Showing on the flerits."

Finally, F0E asserts that it believes that it will prevail on three other " appeals" which are pending with the !4RC, and thus suggests that such " appeals" provide a basis for grcnting its present petition.

The three matters relied upon by F0E are: (i) a 10 C.F.R. 9 2.206 Peti-tico seeking revocation of the low power cperating license issued to the Limerick facility on October 26, 1984; (ii) an opposition to Applicant's request for an exemption from the requirements of 10 C.F.R. s 50, App. E, IV,F,1; and (iii) an " appeal" to the Comission from the granting of eight exemptions to the Applicant from certain requirements of 10 C.F.R. Part 50.

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Contrary to F0E's assertion, none of the above " appeals" provides a basis for the granting cf the present Petition. As to the first " appeal", relied upon by F0E, the Director of Nuclear Reactor Regu-lation issued a decision on July 29, 1985 denying F0E's 2.206 Petition.

DD-85-11, 22 NRC (July 29, 1985). And under the provisions of 10 C.F.R. 5 2.206(c), that Decision will become final action of the Com-mission .in 25 days of its issuance unless the Commission determines to review the Decision within that time. Similarly, as to F0E's opposition to Applicant's request for an exemption from the requirements of 10 C.F.R. 5 50, App. E, IV,F,1, on August 8, 1985 the Commission authorized the issuance of a full power operating license for the Limerick facility

-(CLI-85-15,22NRC (August 8, 1985)) which license granted the re-quested exemption. Finally, with regard to F0E's third " appeal" regard-ing the issuance of eight exemptions to the Applicant frcm certain regulations, the Commission issued an Order on August 8,1985 referring F0E's pleading to the Director of Nuclear Reactor Regulation "for appro-priate action." Order at 1.

l- Thus, while not all of the " appeals" relied upon by F0E have been finally resolved, none of the matters can be viewed as providing any support for the present Petition.

2. Irreparable Harm

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This factor is often the most important in determining the need for a stay. 6_/ F0E argues -- again without any support -- that if 6/ Philadelphia Electric Company, (Limerick Generating Station, Units 1 and 2), ALAB-789, 20 NRC 1443 (1984).

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Limerick is licensed it will be irreparably injured because of the danger of accidents, routine releases and financial injury due to losses to the economy. With regard to F0E's allegations concerning the danger from accidents, the Commission recently denied a stay request in Diablo Can-yon, stating that " mere exposure to risk, --- does not constitute irrepa-rable injury if the risk --- is so low as to be remote and speculative.2I In addition, F0E's reasons are so general in nature as to provide no support for its request. Accordingly, F0E has not estab-lished that it will suffer irreparable injury if its request for a stay is denied.

3. Harm to other Parties With respect to the question of harm to other parties, F0E alleges "...PECo stockholders will probably be harmed in the short run, but in the lorger run will benefit." Thus, F0E acknowledges that the Applicant's interests will be affected.by the grant of 6 stay even though in the long run it somehow will benefit. As with F0E's treatment of the other factors necessary for a stay, there is no support for_its bare assertions of a long run benefit to the Applicant. Moreover, the Licens-ing Board has authorized the Director of Nuclear Reactor Regulation to issue a full power operation license for Limerick and the Com';ssion has voted to make the Licensing Board's decision immediately effective.

CLI-85-15, 22 NRC (August 8, 1985). A stay at this time, would ad-

~~7/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-85-14, August 1, 1985, slip op. at 5.

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versely impact the Applicant's schedule thereby delaying operation of

the Limerick facility.

4 The Public Interest F0E makes no persuasive showing on the public interest factor and simply asserts that the public interest lies in avoiding economic set-backs from rate hikes and "PECo instability" if Limerick is licensed.

This is not the first time F0E has put forth this argument in connection with a stay request and the Appeal Board has on previous occasions re-jected it.

In ALAB-7898,/ the' Appeal Board stated:

...With respect to the economic concerns noted by F0E in this connection, they are not within the proper scope of issues litigated in NRC proceedings. The Commission has just re-cently reaffirmed its long-held view that a nuclear plant's possible effect on rates, the utility's solvency, and the like is best raised before state economic regulatory agen-cier Publi Service Co. of New Hampshire (Seabrock Station, Unit '), Q 1-64-6, 19 NRC 975 (1984). . . .

F0E has therefore failed to show that it is likely to prevail on the merits of its appeal and that it will be irreparably harmed unless the low-power license is lifted. Nor has it shown that such action is within the public interest.

ALAB-789, at 5-6, 1

In view of F0E's failure to make a persuasive showing on this factor as well as the other requisite factors (discussed above) necessary for the issuance of a stay, it is Staff's opinion that F0E has not suc-

. cess uf lly established that the public interest supports its efforts to

-8/ Philadelphia Electric Company, (Limerick Generatine Station, Units 1 and 2) ALAB-789 20 NRC 1443, 1447, (1984)

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disturbtheeffectivenessofthedecisionsbelow.AI Consideration of all the criteria set forth in 10 C.F.R. 5 2.788(e) clearly weigh against granting-the relief requested by F0E.

IV. CONCLUSION Based on the foregoing, F0E has failed to satisfy the requirements for the issuance of a stay under 10 C.F.R. Q 2.788 and its request should be denied.

f Respectfully submitted, l pf<ai/E . h!

njamin H. Vogler '

ounsel for NRC Staff 7 Dated at Bethesda, Maryland this 12th day of August, 1985 1

'-9/ See, Flcrida Power and Light Company (St. Lucie Nuclear Fower Plant, Unit 2), ALAB-404, 5 NRC 1185, 1188-1189 (1977).

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOLHETED BEFORE THE ATOMIC SAFETY Af1D LICEllSIrlG APPEAL BOARD USNRC In the Matter of )

'85 AUG 13 P3:53

)

PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352 CFFin OF SECRtiAn

) 50-353 00ChETmG & SEPvu B N CH (Limerick Generating Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER TO R. L. ANTHONY /F0E'S PETITION FOR A STAY OF THE LICENSING BOARD'S ORDER OF JULY 22, 1985 AUTHORIZING THE ISSUA!!CE OF A FULL POWER LICENSE FOR LIMERICK" in the above-captiened proceeding have been served en 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, or as indicated by a double asterisk by hand-delivery, this 12th day of August, 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 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 Reculatory Commission 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 Anbler, PA 19002 Kathryn S. Lewis, Esq.

1500 Municipal Services Bldg.

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

Ms. Maureen l'ulligan Philadelphia, PA 19107 Limerick Ecology Action 762 Cueen Street Pottstewn, 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, Transportation & Safety 500 C Street, S.W.

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

Robert L. Anthony Sugarman, Cenworth & 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. Atcmic 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 (8)

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 C [nfG ?f/

EenjeninH.Vogler _f_.

Counsel for NRC Staff [

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