ML20137H732

Response Opposing Limerick Ecology Action 851108 Petition for Commission Review of ALAB-819.Petition Fails to Establish That Decision Raises Issues Suitable for Commission Review.Certificate of Svc Encl

ML20137H732
Person / Time
Site:	Limerick
Issue date:	11/25/1985
From:	Hadgdon A, Hodgdon A NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC COMMISSION (OCM)
References
CON-#485-345 ALAB-819, OL, NUDOCS 8512020461
Download: ML20137H732 (13)

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c7D' NUCLEAR REGULATORY C0petISSION BEFORE THE COP 911SSION 26 P2,yg In the Matter of PHILADELPHIA ELECTRIC COMPANY Docket Nos. 50-352 50-353 (Limerick Generating Station, )

Units 1 and 2) )

l NRC STAFF ANSWER TO LIMERICK ECOLOGY ACTION'S PETITION FOR REVIEW OF ALAB-819 t

Ann P. Hodgdon Counsel for NRC Staff November 25, 1985

1. ?Q>TTrp UNITED STATES OF AMERICA c

NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

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In the Matter of PHILADELPHIA ELECTRIC COMPANY Docket Nos. 50-352 50-353 (Limerick Generating Station, Units 1 and 2)

NRC STAFF ANS).'ER TO LIMERICK ECOLOGY ACTION'S PETITION FOR REVIEW OF ALAB-819 I. INTRODUCTION On November 8, 1985 Limerick Ecology Action (LEA) filed a petition for Comnission review of ALAB-819 1/ pursuant to 10 C.F.R. I 2.786. In ALAB-819, the Appeal Board decided all issues involved here in favor of the Licensee, Philadelphia Electric Company. LEA asserts that the Appeal Board conritted legal error in upholding the Licensing Board's exclusion of certain contentions proposed by LEA concerning design alternatives to mitigate severe accidents, the risk of sabotage and socio-economic impacts (Petition at 1, 3) and in giving inadequate consideration to contentions that were admitted concerning health effects of severe accidents. Petition at 3. For the reasons discussed belo. the Staff opposes LEA's Petition and urges the Comission to deny it.

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Philadelphia Electric Company (October (Limerick Generating Station, Units

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and2),ALAB-819,22NRC 22,1985).

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II. BACKGROUND In ALAB-819, the Appeal Board affimed the Licensing Board's Second Partial Initial Decision, 2/ which decided all environmental and health '

and safety issues with the exception of offsite emergency planning issues and authorized issuance of a low-power license for Limerick.

In ALAB-819, the Appeal Board concluded, inter alia, that:

1) Although the Licensing Board had incorrectly held that because of lack of bases and specificity LEA's proposed Contertion DES-5 was inadmissible. 3/ the Comission's subsequently promulgated Severe Accident Policy Statement precludes litigation of contentions concerning severe acci-dent mitigetion measures in individual operating license proceedings. ALAB-819 at 3-12 citing 50 Fad. Reg. 32,138' (August 8, 1985). Further, the Appeal Board ruled that the exclusion of DES-5 violates neither NEPA nor any regulation prcr.ulgated pursuant to it. ALAB-819 at 12;

2) The Licensing Board did not err in excluding LEA's Conter. tion DES-6, which alleges that the failure of the 2/ LBP-84-31,20NRC446(1984).

3/

Proposed Contention DES-5 asserted that the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 6 4321, et seq., and the Comission's regulations implementing NEPA reliiiire consideration of design alternatives for the mitigation of severe accidents. The contentions on which LEA seeks Comission review were proposed in relation to alleged inadequacies in NUREG-0974, the Staff's Draft (FOOTNOTECONTINUEDONNEXTPAGE)

1 Staff's Draf t Environmental Statement to consider sabotage -

initiated accident scenarios violates NEPA and Commission policy and regulations. ALAB-819 at 12-15;

3) The Licensing Board did not err in excluding two sub-parts of LEA's Contention DES-4(A) regarding (a) the socio-economic cost of compensation required for health effects induced by radiation exposure and (b) industrial impacts beyond the first year following the accident. ALAB-819 at 21-26. AsregardstheotherfivesubpartsofDES-4(A) that were admitted by the Licensing Board for litigation, all of which concern human health impacts, the Appeal Board up-

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held the Licensing Board's judgment tha.t tp the extent the FES was deficient in its treatment of these matters, the record of decision modified the FES so as to cure the defi-ciency. ALAB-819 at 27-33.

In the subject Petition, LEA seeks Conmission review of each of the foregoing determinations.

(FOOTNOTECONTINUEDFROMPREVIOUSPAGE)

Environmental Statement, Supplement 1 (December 1983); the Final Environmental Statement was issued in April 1984, prior to the hearing on LEA's admitted contentions.

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III. DISCUSSION Although the Comission has the discretion to review any decision of its subordinate boards, a petition for Comission review will not ordi-narily be granted unless important safety, environmental, procedural, comon defense, antitrust or public policy issues are involved.

10C.F.R.52.786(b)(4).

LEA asserts that the Appeal Board's decision upholding the Licensing Board's disposition of its severe accident risk contentions is erroneous l (Petitice at 1), and that important issues of Comission policy are in-volved. Petition at 3. As support for its assertion, however, LEA does nothing r' ore than reargue its position previously stated before the Licensing and Appeal Boards. Its Petition does not comply with the pleading requirements of 10 C.F.R. 5 2.786(b)(2) in that LEA does' not specifically identify "where the matters of fact or law raised in the petition for review were previously raised before the Atomic Safety and LicensingAppealBoard"(10C.F.R.I2.786(b)(2)(ii)),otherthantorely generally on its Brief in Support of Appeal. Additionally, other than its discussion of the Appeal Board's reliance on the Comission's Severe Accident Policy Statement, LEA does not identify the precise reasoning of the Appeal Board with which it disagrees. LEA has, therefore, failed to state "why in the petitioner's view the decision or action is erroneous."

10C.F.R.I2.786(b)(2)(iii). In addition to this significant pleading deficiency, the Staff has considered LEA's assertions of error and has detennined, for the reasons discussed below, that LEA does not raise any issue meriting Comission review.

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A. DES-5 LEA's argument regarding the Licensing Board's refusal to admit its Contention CES-5 was raised before the Appeal Board and LEA simply argues before the Comission that the Appeal Board should be reversed based upon the reasoning in LEA's brief on appeal, which it seeks to incorporate'by reference. Petition at 1. The Appeal Board considered all the arguments rade in LEA's brief on appeal in reaching its judgment that, although the Licensing Board had erred in refusing to admit DES-5 for lack of bases and specificity, the Comission's subsequently adopted Severe Accident Policy Statement precluded consideration of severe accident mitigation measures in individual operating license proceedings. ALAB-819 at 9, citing 50 Fed. RS . at 32,145 (August 8, 1985). LEA's Petition reit-erates its position that:

• LEA believes that the Comission is obligated to consider this matter based on the National Environmental Policy Act and LEA's demonstration that the Limerick facility poses an undue and unacceptable risk to the public and that design alternatives could reduce the risk of severe accidents significantly.

Petition at 3. LEA has failed, however, to confront, let alone counter, the reasoning the Appeal Board employed to conclude that NEPA does not require the treatment of severe accidents asserted by LEA. See ALAB-819 at 12.

LEA now raises for the first time another argument, that NUREG-1068,

" Review Insights on the Probabilistic Risk Assessment for the Limerick Generating Station" (August, 1984), shows the risk of the operation of Limerick to be greater than the risk of the " average" plant / site of the 25 plants / sites analyzed. Petition at 2. As noted by the Appeal Board

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in ALAB-819, NUREG-1068 was served on all parties by Board Notification 84-147(September 17,1984) and no party sought to reopen the record to pursue any of its findings. ALAB-819 at 12, n.15. Accordingly, LEA is attempting to raise on appeal a matter which it could have raised before the Appeal Board, but did not. Under such circumstances review by the Concission will not be granted. 10C.F.R.62.786(b)(4)(iii).

For the reasons discussed above, LEA's Petition does not demonstrate why the Comission should take review of the Appeal Board's decision on DES-5. See10C.F.R.52.786(b)(4)(1).

B. DES-6 This issue involves the necessity for discussing the risk of tabotage

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in the Staff's DES /FES. LEA's Petition dues not present any arguments ccncerning the Appeal Board's upholding of the Licensing Board's rejection of Contention DES-6. Rather, the treatment of that issue in LEA's Petition is limited to a bare assertion that "the ASLB improperly eicluded consid-eration of . . . the risk of sabotage." Petition at 3. LEAoffe7sneb-ing en why it o.as error on the Appeal Board's part to uphold the Licensing Board en this issue or why denial of this co6tention raises an issue that should be reviewed by the Comission. LEA does not raise an issue meriting Comission review of the Appeal Board's conclusion that LEA had not demon-strated that separate consideration of sabotage as an initiator of a severe accident at Limerick would add to the quality of the Staff's discretionary review of severe accidents. Further, as discussed above, LEA has not complied with the requirements of 10 C.F.R. 5 2.786(2)(b). Accordingly, 1 _= -

I LEA has presented no satisfactory basis as to why the Connission should review this issue. 10 C.F.R. I 2.786(b)(4).

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C. Socio-economic Impacts As stated above, LEA proposed a contention DES-4(A), alleging that 1

the DES's discussion of seven separate socio-economic impacts of severe accidents was inadequate to satisfy NEPA and regulations pursuant to NEPA.

The Licensing Board rejected two subparts of the contention. The Staff and the Licensee presented testimony on the admitted subparts of the t

contention. The Licensing Board held that the record of decision cured any inadequacy in the Staff's discussion of these issues in the DES /FES.

20 NRC 552-53. The Appeal Board agreed with the Licensing Board and

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neted further than a Court of Appeals decision subsequent to the issuance of LBP-84-31 N ad h held that NEPA does not require consideration of severe accidents, much less of the details of the possible consequences of such

, accidents, such as LEA was urging here. LEA's Petition adds nothing to its argument on appeal regarding why it cor.siders the Licensing Board and the Appeal Boerd to be wrong on this issue. Further, LEA has not complied with the pleading requirements for petitions for review. See 10 C.F.R.

Il 2.786(b)(2).

LEA asserts that it demonstrated that the Limerick facility poses an undne and unacceptable risk to the public. Petition at 3. LEA provides

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4/ San Luis Obispo Mothers for Peace, 751 F.2d 1287 (D.C. Cir.1984) vacated in part and rehearing en banc granted on other grounds, 760 F.2d 1320 (1985).

no citation for this proposition and, to the Staff's knowledge, LEA has made no such demonstration. LEA did not present witnesses; its case was limited to cross-examination of the Staff's and the Licensee's witnesses.

Although LEA generally attempted to show that the risk of operation could be greater than the Staff's assessment showed it to be, LEA did not con-vince either the Licensing Board or the Appeal Board that its participa-tion had shown the risk of the operation of Limerick to be undue and unacceptable. Thus, LEA has not shown that the Appeal Board's rulings on the issues raised by LEA's appeal on DES-4(A) were erroneous or that they raised any important question of law or policy. To the extent that an issue of fact is involved, the Coninission's regulations would preclude review by the Comission, since the Commission will not grant review of

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matters of fact unless it appears that the Appeal Board has~re' solved a factual issue necessary for decision in a clearly erroneous manner contrary to the resolution of that issue by the Licensing Board.

10 C.F.R. 5 2.786(b)(4)(ii).

IV. CONCLUSION As discussed above, LEA's Petition fails to establish that ALAB-819 raises issues suitable for Comission review. According~ly, the Petition should be denied.

Respectfully submitted, Ori l Lkh %

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( a #. f u, ,C Staff Dated at Bethesda, Maryland this 25th day of November, 1985

4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE CO MISSION -

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 "NRC STAFF ANSWER TO LIMERICr ECOLOGY ACTIONS'S PETITION FOR REVIEW OF ALAB-819" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Comission's internal mail system, this 25th day of November,1985:

Samuel J. Chilk

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Herzel H. E. Plaine, Esq.

Office of the Secretary General Counsel U.S. Nuclear Regulatory Comission 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 Comission 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 Wetterbahn U.S. Nuclear Regulatory Comission 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20555* Washington, D.C. 20006 1 Dr. Jerry Harbour Mr. Marvin I. Lewis Administrative Judge 6504 Bradford Terrace Atomic Safety and Licensing Board Panel Philadelphia, PA 19149 U.S. Nuclear Regulatory Comission '

Washington, D.C. 20555* Joseph H. White, III 15 Ardmore Avenue Mr. Frank R. Romano Ardmore, PA 19003 Air and Water Pollution Patrol 61 Forest Avenue Ambler, PA ,19002 l

Ms. Phyllis Zitzer, President Kathryn S. Lewis, Esq.

Ms. Maureen Mulligan 1500 Municipal Services Bldg.

Limerick Ecology Action 15th and JFK Blvd.

762 Queen Street Philadelphia, PA 19107 -

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 Fernsylvania 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. Sugaman, Esq.

Robert L. Anthony Sugarman, Denworth & Hellegers Friends of the Earth of the 16th Floor Center Plaza Delaware Valley 101 North Broad Street 103 Vernon Lane, Box 186 Philadelphia, PA 19L107 Moylan, PA 19065 -

James Wiggins Angus R. Love, Esq. Senior Resident Inspector Montgomery County Legal Aid U.S. Nuclear Regulatory Comission 107 East Main Street P.O. Box 47 Norristown, PA 19401 Sanatoga, PA 19464 Charles W. Elliott, Esq. Atomic Safety and Licensing Brose & Poswistilo Board Panel 325 N. 10 Street U.S. Nuclear Regulatory Comission Easton, PA 18042 Washington, D.C. 20555*

Atomic Safety and Licensing Appeal David Wersan Board Panel (8) ,

Consumer Advocate U.S. Nuclear Regulatory Comission 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 King of Prussia, PA 19406*

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Gregory Minor MHB Technical Associates 1723 Hamilton Avenue San Jose, CA 95125 ,

Steven P. Hershey, Esq.

Comunity Legal Services, Inc.

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

West Chester, PA 19380 f L Jos M /Rutbdrg A ist,Pnt Chief Hearing ounsel D

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