ML20141N819

Memorandum & Order Directing Appearance of Rl Anthony & All Parties at 860327 Prehearing Conference on Licensee 851218 Request for Amend & Rl Anthony 860130 & 0205 Petitions for Hearing & Leave to Intervene.Served on 860314

ML20141N819
Person / Time
Site:	Limerick
Issue date:	03/13/1986
From:	Smith I Atomic Safety and Licensing Board Panel
To:	ANTHONY, R.L., NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
References
CON-#186-404 86-522-02-LA, 86-522-2-LA, OLA, NUDOCS 8603180164
Download: ML20141N819 (12)

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f SERNED MAR 141986 UNITED STATES OF AMERICA 80 3/13/g f fffP NUCLEAR REGULATORY COPMISSION N N 14 Pl2:19 Before Administrative Judges: i Ivan W. Smith, Chairman h

• Richard F. Cole Qb$jpp, ;'. 4.3f. l Gustave A. Linenberger, Jr.

In the Matter of

)l PHILADELPHIA ELECTRIC COMPANY l Docket No. 50-352-OLA h [ASLBP No. 86-522-02-LA)

(LimerickGeneratingStation. (Check Valve)

Unit 1) )J March 13, 1986 MEMORANDUM AND ORDER RULING ON ROBERT L. ANTHONY'S PETITION FOR LEAVE TO INTERVENE

Background

l Tht, proceeding involves an amendment to the operating license for the Limerick Generating Station Unit No. 1 located in Montgomery l County, Pennsylvania. The Licensee. Philadelphia Electric Company, applied for the amendment on December 18, 1985. The Connission i initially determined that the requested amendment would be a "no significant hazards consideration" under Section 189 a(2)(A) of the l Atomic Energy Act (as amended in 1983 by the "Sho11y Amendment"). That secticn provides that, upon an initial determination by the Connission that an amendment to an operating Ifcense involves no significant hazards, that amendment may be imediately effective in advance of the holding and completion of any hearing required under the Act.

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l On, December.26, 1985 theCommiissionpublishedintheFederal et.w M M c, Resister the notice of " Consideration of Issuance of Amendment to Facility: Operating License and Proposed No Significant Hazards Consideration Determination and Opportunity for Hearing" on the proposed amendment. 50 Fed. Reg. 52874 The notice explained briefly the i

technical details of the proposed amendment, explained the "no j significant hazards consideration" and the hearing and intervention f

l procedures the Cosmiission intended to follow. Any petitions for leave ,

l to intervene were to be filed by January 26, 1986. M.at52875. [

On January 30, 1986 Mr. Robert L. Anthony submitted a letter l requesting a hearing and seeking leave to intervene. The Chief of the {

Oocketing and Service Branch and the General Counsel noted several defects in the letter and declined to docket it. Mr. Anthony was l

informed of this determination orally on February 5,1986 and in writing l

on February 6. Subsequently, Mr. Anthony, by a pleading dated  :

February 5, 1986, submitted an amendnent to his January 30 pleading. [

The Docketing and Service Branch docketed the amended petition.

On February 6,1986 the requested amendnent to the Limerick i

operating license was issued. According to the Federal Register notice the amendment revises the technical specifications to allow a one-time-only extension of time to satisfy a limited number of testing requirements for the excess-flow check valves in certain instrument lines. The testing must be performed every 18 months and requires a i plant shutdown. Under the amendment, the surveillances would be performed during a plant shutdown beginning no later than May 26, 1986, l

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5 which will occur a maximum of 96 days beyond the time otherwise designated by the technical specifications. The stated purpose of the amendment is to allow continued operation of the plant until other more extensive surveillance testing needs to be performed, and for which plant shutdown is unavoidable.

Limerick Unit No. I has been operating under the authority of the amendment since February 19. Pursuant to Section 189 of the Act, persons who qualify as parties to the proceeding are entitled to have a hearing on the amendment even though it has already been issued.

The Licensee and the NRC Staff oppose Mr. Anthony's petitions.

Their arguments raise issues of timeliness of the petition, Mr. Anthony's standing to intervene,I and whether the aspects of his proposed intervention are within the scope of the notice of opportunity for hearing.

The Petitioning The Board regards the initial petition of January 30 and the amendment of February 5 together as Mr. Anthony's intervention petition.

I Mr. Anthony refers to "F0E" in some of his pleadings, which we understand to be a reference to the Intervenor in the Limerick Operating License proceeding, Friends of the Earth. However, he explains nothing whatever about F0E or its interest in this proceeding. We have viewed the petitioning as an individual effort by Mr. Anthony.

i ,4, In addressing the threshold requirements of the intervention rule, 10 CFR l 2.714, we do not now consider Mr. Anthony's subsequent filings l of February 15 (contentions), his " petition" of February 26, nor the several papers filed with the Commissioners.

A. Timeliness The intervention rule requires that non-timely filings not be considered without a determination that a balancing of the five familiar factors of the rule favors granting the petition.2 Despite Licensee's protestations, we accept Mr. Anthony's letter of January 30, 1986 as the pleading for measuring timeliness. Functionally the January 30 letter performs about as well as is required for the purpose of testing the threshold merits of the petitioning. It tells the Licensee and the NRC Staff that Mr. Anthony wants a hearing and gives the reasons why he does. With some effort it is understandable. Despite the informality 2

Section 2.714(a)(1):

(1) 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.

(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding, I

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.b of the proof-of-service notation, it is apparent that Licensee was put on notice of Mr. Anthony's intervention intentions on January 30.3 The January 30 letter was four days late. Mr. Anthony does not expressly acknowledge that he was late but alludes to a possible good cause justification by explaining that he could not have responded any earlier "since the NRC notice, 1/27/86, reached us only on 1/29/86."4 The sequence of events leading to Mr. Anthony's petition began when Licensee served a copy of its application for the amendment on Mr. Anthony at the time of its filing on December 18, 1985. The Notice of opportunity for a hearing was published on December 26, 1985, but the 3 It is not within the purview of the Licensing Board to ratify or reject the action of Mr. Clements, Chief of the Docketing and Service Branch, in declining to docket on January 30, the January 30 letter. However, Mr. Anthony's letter clairly did not meet the requirements of 10 CFR l 2.708. The fact that Mr. Clements specifically informed Mr. Anthony of the formal requirements for NRC intervention petitions did not come to the Board's attention until after we issued our Memorandum and Order of March 4,1986 in which a admonished Mr. Anthony about the poor form of his pleadings. Had we been aware of Mr. Clements' explanation to Mr. Anthony, nur March 4 statement would have been stronger. Mr. Anthony shoult regard this discussion as the third warning that he must comply with the NRC rules on filing documents.

4 The Federal Resister notice has a very substantial potential for confusing wou'lc -be petitioners. By its terms only the ifcensee is invited to file a request for a hearing. Any other person who wishes to participate in the proceeding as a party is invited only to file a petition for leave to intervene. Without a thorough grounding in Section 2.714, a reasonable interpretation may be that a petition to intervene may be filed only in a hearing requested by the licensee. However, in this case, it is apparent that Mr. Anthony was not mislead. His letter of January 30, 1986 ,

1 expressly requests a hearing.

l NRC Staff, through " inadvertence" did not then serve the Federal Register notice on Mr. Anthony. Mr. Anthony first learned of the Federal Register notice when the NRC Staff provided a copy of the notice in a letter of January 27, 1986 to Mr. Bauer of the Philadelphia Electric Company. The Staff's letter to Mr. Bauer with the notice was served on Mr. Anthony.

In a two-part argument Licensee insists that there is no good cause for the petition being tardy. First, Licensee argues that the application for amendment was, in fact, served upon Mr. Anthony. But, notice of the application for the amendment is not notice of the opportunity for a hearing on the amendment. In this respect the Board believes the Licensee is not being fair to Mr. Anthony. The appItcation for the amendment was itself apparently quite late. The request received a very prompt turn-around from the NRC. Within eight days, including the Christmas holiday, Licensee received a "no significant hazards determination" from the NRC Staff and the Staff's publication of the lengthy and complex notice of opportunity for hearing in the Federal Register.

Second, Licensee argues that the Federal Register notice itself served as full notice to Mr. Anthony. The Licensee is correct that publication in the Federal Register gives legal notice of federal business (licensee's Answer at 6-7), but Licensee acknowledges that Mr. Arthony was a long-time intervenor in the Limerick operating license proceeding. In fairness, Mr. Anthony should not have had to monitor the l Federal Register to learn about his opportunity to participate in tLis

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i I amendment proceeding especially when the notice was published so soon after the application. We believe that the Staff has taken the more responsible position on this issue. It does not oppose the petition on the basis of timeliness. The Staff implies that Mr. Anthony was entitled to receive a copy of the Federal Register notice when it was published. Staff Response at 3 n.1.

In any event, Mr. Anthony's petition was not very late and he acted very promptly when he did receive notice. The Board rules that Mr. Anthony has demonstrated good cause for the slightly late filing.

With good cause shown for late filing, Mr. Anthony has a light burden on the other four factors to be balanced for late-filed petitions. There are no other means by which his interest may be protected. This Board has no information about whether Mr. Anthony's participation would assist in developing a sound record. No other party will represent his interests.

The only factor which might weigh against granting the petition is the fifth. Since there will be no hearing if Mr. Anthony does not participate, his participation necessarily will broaden the issues. But since the amendment is already in force, his participation will not delay the proceeding. Any harm visited upon the (.fcensee by the lateness of the filing was obviated when the Connission issued the amendment without considering the petition. Balancing the five factors.

the Board concludes that the petition should not be denied on the grounds of tardiness.

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B. Petitioner's Interest. Standing, and Aspects of Intervention Section 2.714(a)(2) requires a petitioner to set forth his interest in the proceeding and to explain how that interest may be affected by the results of the proceeding. The rule also requires that the petitioner set out the " aspect or aspects" as to which he seeks to intervene. We turn first to the third of these considerations, because Mr. Anthony's interests in the proceeding are masured by the " aspects" of his petitioning.

The Federal Register notice offers a hearing on two aspects of the amendment. The first relates to any possible leakage from the containment in the event of a check-valve malfunction. Mr. Anthony's petition does not address this aspect. The second aspect alludes to an analyzed failure of an instrument line and states that the proposed change would not require a respective change in the Limerick Final Safety Analysis Report. Id. at 52874 Mr. Anthony's petition addresses the instrument-line aspect:

We are convinced that any extension of time for the tests required to determine the ability of the instrumentation lines to function properly would pose risks to our health and safety since these lines are essential to operator information and functioning in every aspect of the plant's operation and are a key link in the control of the nuclear process and absolutely essential to the safe shutdown of the plant in the event of any accident at the plant which could result in the release of radioactive poisons to the environment, thereby threatening us and the public.

Letter, January 30, 1986.

6 But next, Mr. Anthony slips into a digression. Citing a Torrey Pines Technology energy-line break analysis, Mr. Anthony states that it "is especially important for the [ instrument] lines to be checked" against accidental force and adjacent-line whipping. The NRC Staff pursues Mr. Anthony into his digression and accurately points cut that '

there is no nexus between the Torrey Pines analysis and the amendment to Limerick's operating license. Staff response at 6-7.

Mr. Anthony has satisfied the " aspects" requirement of the intervention rule. His discussion of his concern about instrument-line failure (quoted above) is directly responsive to an aspect of the amendment noticed in the Federal Register opportunity for hearing. His digression into adjacent-line whipping is in the nature of a contention.

It is premature, irrelevant and superfluous. However the discussion is not fatal to his petition.0 Licensee states that Mr. Anthony, who resides some twenty miles away from the plant, has no interest in the proceeding because he has alleged no " particularized harm" from the " minor and temporary change in schedule to delay certain tests required by the Plant's Technical Specifications rather than any change in design hardware or analysis."

5 Both the Licensee and the NRC Staff impute to Mr. Anthony an intent to litigate once again the safety of the Limerick design. This is not a fair reading of Mr. Anthony's petition. It is clear to the Board that he seeks to litigate exactly what he was invited to litigate by the Notice of Opportunity for a Hearing, i.e., the ability of the instrument lines to function during the extension of time for testing.

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.o Given the fact that Mr. Anthony seeks to intervene on instrument failure (not on check valve leakage), the Board does not understand why the twenty-mile distance between his residence and the plant would preclude a: cognizable interest in the proceeding. The probability of any ,

instrument-line failure during the time extension does not depend upon A the distance from Mr. Anthony's home to the plant. The consequence of any such failure appears to be about the same as in the traditional construction permit and operating license proceeding where a distance of about 50 miles has been thought to be within the area of interest for intervention.

Underlying the objections to the petition by the Staff and t.icensee is the implicit assumption that this matter before the Board involves a "no significant hazards consideration" factually as well as legally; therefore Mr. Anthony cannot be exposed to any harm giving him standing to intervene. This is an incorrect reading of Section 189 of the Act and the Notice of Opportunity for Hearing. The proposed detemination that the amendment involves a "no significant hazards consideration" is.

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- no way. forecloses the right of persons whose interest may be affected to test the matter on its merits. The Board concludes that Mr. Anthony's

> petition meets the threshold requirements for admission set out in f,/- Sectior 2.714.

C. Contentions However before the Board may admit Mr. Anthony as a party to the proceeding, he must advance at least one acceptable contention. He has

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already submitted a list of contentions.6 in our order of March 6,1986 we directed the Licensee and NRC Staff to be prepared to answer the contentions no later than 12:00 noon, March 17, 1986. Now that the Board has found that Mr. Anthony has standing to intervene, the Licensee and the Staff should file any answer to the contentions by that time.

Section 2.714(a)(3) provides to petitioners an opportunity to submit an amended petition or a supplement to petitions with contentions at any time up to 15 days prior to the first prehearing conference.

However, that time interval is not appropriate in this proceeding.

Accordingly the Board will afford to Mr. Anthony an opportunity only until March 20, 1986 to file by exprer,s mail any amendments or supplements to his petition. A prehearing conference will be convened on Thursday, March 27, 1986, beginning at 9:00 a.m. EST, at Old Customs Courtroom (Room 300), U. S. Custcms House, Second and Chestnut Streets, Philadelphia, Pennsylvania. All parties and Mr. Anthony or their respective counsel are directed to appear. The Licensee and NRC Staff may respond orally to any additional petitioning and contentions submitted by Mr. Anthony at the prehearing conference. The Board's order of March 4,1986 suspending pleadings is vacated.

6 The contentions were included in a pleading submitted to the Commission on February 15, 1986. The Secretary of the Commission referred these contentions to this Board. Letter, Chilk to Anthony, March 5, 1986.

Judges Linenberger and Cole were not available to participate in this action. Both approve the action.

FOR THE ATOMIC SAFETY AND LICENSING BOARD pW '

'Ivan W. Smith, Chairman ADMINISTRATIVE LAW JUDGE Bethesda, Maryland March 13, 1986 i

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