ML20137H971
| ML20137H971 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 01/16/1986 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#186-773 ALAB-828, OL, NUDOCS 8601220163 | |
| Download: ML20137H971 (16) | |
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UNITED STATES OF AMERICA h$kD NUCLEAR REGULATORY COMMISSION
'86 I
ATOMIC SAFETY AND LICENSING APPEAL 3 BOARD I Administrative Judges: 3 ,,
Christine N. Kohl, Chairman January: 16, 1986 Gary J. Edles (ALAB-828)
Dr. Reginald L. Gotchy In the Matter of ) SCC N
)
Pl!ILADELPIIIA ELECTRIC COMPANY ) Docket Nos. 50-352 OL
) 50-353 OL (Limerick Generating Station, )
Units 1 and 2) )
)
Robott L. Anthony, Moylan, Pennsylvania, intervernor pro se and for intervenor Friends of the Earth.
Troy B. Conner, Jr., Mark J. Wetterhahn, and Robert M.
Rader, Washington, D.C., for applicant Philadelphia Electric Company.
Ann P. Ilodgdon for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER We have before us an appeal from the Licensing Board's ruling denying a request by intervenors Robert L. Anthony and Friends of the Earth ( Anthony / FOE) to reopen the record in this operating license proceeding.I As explained below, we affirm the Board's determination.
See Licensing Board Memorandum and Order of June 4, 1985 (unpublished).
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2 I.
On April 30, 1985, Anthony / FOE filed a one-page petition with the Licensing Board to reopen this proceeding for consideration of three matters: (1) the supposedly improper use of the plant site boundaries by applicant Philadelphia Electric Company (PECo) in determining the public's exposure to gaseous and liquid effluent releases during routine plant operation;2 (2) the claimed underestimation of radiation exposure to the public due to assertedly improper calculations regarding the fish ingestion pathway; and (3) the alleged degradation in standards for protecting the public occasioned by a revision of PECo's Offsite Dose Calculation Manual (ODCM). Anthony /
FOE rely on information in PECo's Semi-Annual Effluent Releases Report No. 1 (herea f ter , " Releases Report"), in particular, Attachment D (Revision 1 to the ODCM). PECo submitted this report to the Commission on February 28, 1985, in compliance with the Technical Specifications of its operating license and other staff-imposed requirements.
After considering responses from PECo and the NRC staff, as well as an unauthorized reply by Anthony / FOE and a further responsive pleading filed by PECo, the Board denied Anthony / FOE's request.
Anthony /F0E contend that the dosages should be calculated at the closest, publicly accessible. approaches.to (Footnote Continued)
3 In ruling on a motion to reopen the record, adjudicatory boards consider three factors: (1) whether the motion is timely; (2) whether it addresses a significant safety or environmental issue; and (3) whether a different result might have been reached had the newly proffered material been considered initially.3 When a motion to reopen seeks to inject an entirely new issue into the proceeding, a board must also consider the standards for admitting late-filed contentions, set forth in 10 C. F. R.
S 2.714 (a) (1) :
(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(Footnote Continued) the plant (a railroad right-of-way and the Schuylkill River), rather than at the more distant site boundaries.
3 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 285 n.3, reconsideration denied, CLI-85-7, 21 NRC 1104 (1985). The Commission's use of this test has received judicial approval. Three Mile Island Alert, Inc. v. NRC, 771 F.2d 720, 732 (3d Cir. 1985), citing San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1316-18 (D.C. Cir. 1984),
vacated in part and reh'g en banc granted on other grounds, 760 F.2d 1320 (1985).
4 (v) The extent to which the petitioner's participation will br delay the proceeding.gaden the issues or In reaching its decision, the Licensing Board examined I both the criteria for reopening the rec 6rd and the standards for admitting late-filed contentions. It concluded that l Anthony / FOE failed to satisfy either set of requirements, prompting the instant appeal.5 PEco and the staff urge
, affirmance of the Licensing Board's decision.
4 See Pacific Gas and Electric Co. (Diablo Canyon i Nuclear Power Plant, Units 1 and 2), CLI-82-39, 16 NRC 1712, *
! 1714-15 (1982).
5 The Licensing Board also determined, at the 6
threshold, that it had jurisdiction to rule on Anthony / FOE's
. petition to reopen. The Board took note of an earlier appeal board decision in this proceeding, suggesting a pragmatic approach in deciding this type of jurisdictional i question, in "the absence of any clear administrative guidance." See ALAB-726, 17 NRC 755, 758 (1983). Although no party pursues the jurisdictional issue on appeal, we
- agree with the Licensing Board's judgment in this regard and l affirm its assertion of jurisdiction.
6 PEco argues that Anthony / FOE's brief was untimely i
under the Commission's Rules of Practice and that their appeal should therefore be dismissed. It contends that the
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abbreviated schedule for briefing certain appeals set forth in 10 C.F.R. S 2.714a should pertain here, rather than the usual schedule found in 10 C.F.R. S 2.762. Applicant's i Brief (July 17, 1985) at 13-14.
Although neither regulation addresses the exact situation here, we believe that section 2.762 is more applicable and that, accordingly, Anthony / FOE's brief was
- timely. As pertinent here, section 2.714a (b) specifically applies to appeals from board orders " wholly denying a petition for leave to intervene and/or request for a hearing" (emphasis added) . We have consistently applied (Footnote Continued) i
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5 II.
A. Under the test for reopening the record, a petitioner must first demonstrate that it could not have presented its information at an earlier time. The Licensing Board found that the particular material in PECo's Releases Report on which Anthony / FOE base their request to reopen the record was not new or previously unavailable.7 Indeed, both the Draft and Final Environmental Statements for Limerick, issued in June 1983 and April 1984, respectively, state that dose calculations are performed at the site boundary.8 The commission has made clear that parties have an obligation to monitor publicly available documents with a view toward raising issues in a timely fashion.9 That is particularly (Footnote Continued) this provision to appeals from orders that have the effect of completely denying party status to a petitioner. See, e.g., Puget Sound Power and Light Co. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), ALAB-712, 17 NRC 81, 82 (1983). That is not the intent or the effect of the Licensing Board's order at issue here. In this circumstance, the briefing schedule for routine appeals from final orders in section 2.762 is appropriate. (PECo does not dispute that the order in question is " final" for appeal purposes.)
Memorandum and Order of June 4 at 5-6.
See, e.g., NUREG-0974, Draft Environmental Statement (June 1.'83) at 5-47, D-5, D-9; id., Final Environmental Statement (April 1984) at 5-47, D-5, D-9.
9 Duke Power Co. (Catawba Nuclear Station, Units 1 and
6 so with respect to environmental impact statements, which are expressly intended for public scrutiny and, if necessary, litigation. Anthony / FOE thus could and should have voiced their concern about the calculation of doses from routine radiological releases at the plant site boundary much earlier. The Licensing Board therefore correctly concluded that, insofar an it concerns dose calculations performed at the site boundary, the motion to reopen is not timely.10 The most important factor to consider, however, is whether the motion to reopen raises a significant safety issue. The Licensing Board concluded that Anthony / FOE's petition does not raise such an issue. Relying on staff affidavits, the Board found that Anthony /F0F,'s arguments are premised on factual inaccuracies and unwarranted assumptions.II w
10 As we point out at note 18, infra, Anthony / FOE do not pursue their argument about the fish ingestion pathway on appeal; therefore, we need not decide if the motion to reopen is timely in that regard. With respect to their argument that PECo's recent (February 1985) changes to its ODCM will lead to a degradation of radiation protection standards, the record is not clear as to when Anthony / FOE actually received PECo's entire filing. In the circumstances, however, we will assume arguendo that Anthony / FOE's April 30 motion is timely, to the extent t is based on any entirely new information in PEco's February 1985 Releason Report.
11 Memorandum and Order of June 4 at 7-9.
7 We find no basis for overturning the Board's conclusion that nothing in the petitioners' presentation raises a genuinely significant safety issue. With respect to Anthony / FOE's complaint about doses determined at the site boundary, Dr. Edward F. Branagan, Jr. (a Section Leader in the Radiological Assessment Branch of the Division of Systems Integration, Office of Nuclear Reactor Regulation),
states that, although individuals could be exposed at the closer points of access urged by Anthony / FOE, it is "unlikely that these locations would be more limiting in dose calculations than the site boundary."12 Dr. Branagan explains that the dose to an individual is the product of the concentration of the radionuclide and the occupancy time (as well as other factors) . Thus, the slightly greater concentration of the radionuclide at the nearer locations identified by Anthony / FOE would be offset by the very small occupancy time there; that is, there are no permanent residences, gardens, or food-source animals at the closer locations.13 In the staf f's view, PECo's use of the site boundaries is there fore appropriate.
12 NRC Sta f f Response to Anthony /F0E Petition to Reopen (May 28, 1985), Affidavit of Edward F. Branagan, Jr., at 3.
l 13 Ibid.
1
8 Anthony / FOE's rather sketchy argument that PECo's revision of its Offsite Dose Calculation Manual somehow violates the Commission's radiation protection standards is similarly without safety significance. As the Licensing Board noted, another staf f af fidavit -- that of Marie T.
Miller, a Radiation Specialist and inspector in Region I, where Limerick is located -- states that the changes to the ODCM are in accordance with both the NRC's regulations (10 C.F.R. Part 20) and PECo's existing Technical Specifications and "do not increase the radiation risk to the public."14 Miller explains that PECo has simply revised some calculations so that it can determine "more efficiently" certain radiation alarm setpoints.15 On appeal, Anthony / FOE attempt to bolster their arguments with the affidavit of Dr. Bruce Molholt, an Arljunct Associate Professor of Health Education at Temple University. This document was not presented to the Licensing Board, and it touches on subjects that are largely beyond those Anthony / FOE sought to raise initially in their April 30 petition to reopen.16 Like the courts, wo 14 Id., Affidavit of Marie T. Miller at 1-2.
Ib Id. at 2. See Memorandum and Order of June 4 at 8-9.
16 Anthony / FOE also refer for the first time in their (Footnote Continued)
9 generally do not consider matters raised in the first instance on appeal; rather, appeals are decided on the basis of the record developed below.17 Even if Dr. Molholt's affidavit were properly before us, however, nothing in it casts doubt on the Licensing Board's conclusion concerning the lack of safety significance in Anthony / FOE's newly proposed contention.18 (Footnote Continued) appellate brief to several NRC Inspection Reports, Notices of Civil Penalties, and Licensee Event Reports. Anthony / FOE Brief (July 2, 1985) at 2-3. Most of these items are totally irrelevant to their motion to reopen and/or involve matters that have been subsequently resolved.
I ALAB-819, 22 NRC 681, 720 n.51 (1985); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 242 (1980);
Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B, and 2B), ALAB-463, 7 NRC 341, 348 (1978).
18 For example, Dr. Molholt states that "[t]here is no reason to assume that a given individual would spend more time" at the site boundary than at the closer access points identified by Anthony /EOE. Anthony / FOE Brief, Af fidavit of Bruce Molholt at 1-2. Dr. Branagan, however, has already explained the occupancy factor underlying the site boundary assumption. See p. 7, supra.
Dr. Molholt's affidavit also refers to radiation exposure through the fish ingestion pathway -- a matter that Anthony / FOE did raise before the Licensing Board but have not pursued in their brief on appeal. Anthony / FOE have therefore waived further arguments on this score. See Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49-50 (1981), a f f'd sub nom. Township of Lower Alloways Creek v.
Public Service Electric and Gas Co. 687 F.2d 732 (3d Cir.
1982). We note, nonetheless, that Dr. Branagan's affidavit and the Licensing Board's decision both adequately address Anthony / FOE's concern about the fish ingestion pathway. See Memorandum and Order of June 4 at 7, 9.
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s 10 Inasmuch as Anthony / FOE have failed to establish the safety significance of the new matter they seek to raise, it follows that a different result would not have been reached had their arguments been considered initially. Conse-quently, the Licensing Board correctly concluded that the standards for reopening have not been satisfied.
B. Even if Anthony / FOE prevailed in meeting the reopening criteria, they must also show that the balancing of the five factors in 10 C.F.R. S 2.714 (a) (1) justifies the admission of their new contention. The Licensing Board concluded that Anthony / FOE's petition failed in this regard as well. We will not overturn a board's determination weighing the five factors absent a showing that the board has abused its discretion.19 Plainly, no such showing has been made here, f
As noted above, the site boundary information on which Anthony / FOE predicate their request to reopen has been publicly available for some time and could have been used to formulate a contention at a much earlier stage. The Licensing Daard ccrrectly determined that Anthony / FOE have Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1763 (1982).
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11 not established good cause for failure to tender their new contention in a more timely fashion.20 With regard to the second factor -- the availability of other means to protect a petitioner's interest -- the Licensing Board found no such other means exist and that Anthony / FOE prevail on this point.21 Petitioners therefore do not contest that Board determination on appeal. PECo, however, in defending the result reached below, contends that this factor weighs against Anthony / FOE. Qonceding that it is not equivalent to the admission of a contention in an adjudicatory hearing, PECo argues that a petition for relief from the Director of Nuclear Reactor Regulation (NRR) under 10 C.F.R. S 2.206 is nevertheless an adequate "other means" to protect a petitioner's interest.22 We cannot conclude that a section 2.206 petition will always provide adequate other means to protect a petitioner's interest. To do so would effectively write factor two out of the regulations. On the other hand, 20 See Memorandum and Order of June 4 at 11.
21 Ibid.
22 In a request under Applicant's Brief at 10 n.28.
section 2.206, any person may seek the suspension, modification, or revocation of a license, or other appropriate action, for alleged regulatory violations or potentially hazardous conditions. See 10 C.F.R. SS
- 2. 206 (a) , 2. 202 (a) .
o ,
12 section 2.714 (a) (1) .does not specify what the term "other means" encompasses -- thereby providing us with some flexibility in its interpretation.23 Whether alternative protective means are, in fact, available depends on the issues sought to be raised, the relief requested, and the stage of the_. proceeding. In some circumstances, this may well require the equivalence of an adjudicatory hearing.
But in other cases -- like that here -- a section 2.206 petition could provide a sufficient vehicle to protect one's interest.24 Anthony / FOE's request to reopen for hearing on their proposed new contention is based on a routine report submitted to the NRC staff by PECo pursuant to the requirements of the low-power operating license that had already been issued. In this limited circumstance, it is not unreasonable to view a party's right under section 2.206 to solicit more formal staff review of the concerns s
23 The origin of this language does not aid in its interpretation. See 37 Fed. Reg. 9331, 9333 (1972) (notice of proposed rulemaking); 37 Fed. Reg. 15,127, 15,129 (1972)
(final rule); 43 Fed. Reg. 17,798, 17,799 (1978) (final rule in existing form). i 24 See Florida Power & Light Co. (Sd. Lucie Nuclear Power Plant, Unit No. 2), ALAB-420, 6 NRC 8, 23 (1977),
aff'd, CLI-78-12, 7 NRC 939 (1978) ("The rule does not say that the 'other means' must be equivalent in every respect to the intervention sought").
s
- 13 triggered by such a routine filing as an adequate other means for protecting its interest.25 Indeed, it might well 25 This is not inconsistent with our prior decisions.
In Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1175-76 (1983), we rejected the section 2.206 remedy as "an adequate substitute for participation in an adjudicatory proceeding concerned with the grant or denial ab initio of an application for an operating license." But that case involved a four-month late petition to intervene at the very outset of the proceeding; indeed, but for that single petition, there was to be no hearing at all. Given the incipient stage of the case, the contentions sought to be raised were typical of those litigated in operating license proceedings and were not, of course, triggered by routine post-license issuance filings with the staff. See id., Licensing Board Memorandum and Order of September 27, 1983 (unpublished), Appendix A.
Thus, in those circumstances, a section 2.206 petition could not reasonably be construed as an adequate other means to protect the petitioner's interest.
Similarly, in Fermi, we agreed that factor two weighed in a petitioner's favor because, in the absence of admission to the proceeding, it could not be " assured of an adjudicatory hearing." 16 NRC at 1767. But the particular emergency planning issues that petitioner sought to raise there also did not arise from any routinely filed, post-licensing reports by the applicant. In any event, we went on to describe a section 2.206 petition as a "real" remedy, explaining the thorough review and written response accorded to such filings. Id. at 1767-68. Compare Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 276 (1975) (availability of other means to protect petitioner's interest can depend on the circumstances of particular case); TLAB-806, 21 NRC 1183, 1190-91 (1985)
(informal negotiLEaon among parties at board-sponsored conference is not adequate other means to protect petitioner's interest); Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 384 n.108 (1985) (NRC staf f's normal nonadjudicatory review of a license application is not adequate other means to protect petitioner's interest); Duke Power Co. (Amendment to Materials License SNM-1773 -- Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear (Footnote Continued)
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14 be argued that formal adjudication before a hearing board is an inappropriate and inferior vehicle for policing the scores of detailed filings routinely submitted pursuant to staff-enforced regulatory requirements.26 The Licensing Board next determined that Anthony / FOE failed to show their ability to contribute to the development of a sound record on the new matter they seek to raise. Anthony / FOE had advised the Board that they would produce a witness -- Dr. Molholt -- but the Board found the subject areas of his likely testimony to be lacking in the requisite specifics.27 The Board's conclusion is reasonable and in accordance with past precedent.28 On appeal, however, Anthony / FOE have tendered Dr. Molholt's affidavit to lend some detail to his proposed presentation. But as we (Footnote Continued)
Station), ALAB-528, 9 NRC 146, 150 & n.7 (1979) (submitting limited appearance statement or making witnesses available to another intervenor is not adequate other means to protect petitioner's interest).
26 Unlike Fermi, 16 NRC at 1768-69, however, we will not refer Anthony / FOE's petition to the Director of NRR. As discussed at pp. 6-9, supra, the petition does not raise any significant safety issues. In addition, Anthony / FOE apparently have already filed a section 2.206 petition with the Director concerning some of the same matters they raise
. here.
27 Memorandum and Order of June 4 at 12.
28 Compare ALAB-806, 21 NRC at 1191-92, with Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 ano 2), ALAB-704, 16 NRC 1725, 1730 (1982).
15 noted above, Anthony / FOE cannot properly supplement on appeal the information that was before the Licensing Board at the time of its decision.29 The Licensing Board found no other existing party that could represent Anthony / FOE's interest and thus weighed the fourth factor in their favor.30 We agree.
Finally, the Board concluded that the introduction of any new contention at this stage of the case would broaden the issues and delay the proceeding.31 But Anthony / FOE argue that reopening the record for hearing on the issues they raise here is essential to the protection of the public health and safety and overrides any possible delay in issuance of a full power license.
At the outset, we note that the Commission's regulations require a licensing board to determine whether the proceeding -- not license issuance or plant operation --
will be delayed.32 We agree with Anthony / FOE, however, 29 See pp. 8-9, supra.
30 Memorandum and Order of June 4 at 12.
31 Ibid.
32 Fermi, 16 NRC at 1766. In any event, since the time the petition to reopen was filed, the Licensing Board has completed all hearings and issued its final partial initial decision resolving in PECo's favor the remaining contested issues and authorizing issuance of a full-power operating license. The Commission made the Board's decision (Footnote Continued) 1
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16 that the public health and safety must be a preeminent concern where significant issues have been raised. But as shown above, the matters involved here do not rise to that level.33 In sum, Anthony / FOE have not demonstrated that a balancing of the five factors in 10 C.F.R. S 2.714 (a) (1) favors the admission and litigation of their new contention based on PECo's Semi-Annual Effluent Releases Report.
The Licensing Board's Memorandum and Order of June 4, 1985, is affirmed.
It is so ORDERED.
FOR THE APPEAL BOARD
- b. - ., b C. J n SHbemaker Secre ary to the Appeal Board (Footnote Continued) e f fective , and the plant is in operation. See CLI-85-15, 22 NRC 184 (1985).
33 See pp. 6-9, supra.