ML20147B994

Comments Opposing Petition of Commonwealth of PA to Intervene & to Request Hearing in Proceeding on Proposed Amends to Ols.Util Concurs W/Nrc That Amends Raise Nshc. Certificate of Svc Encl

ML20147B994
Person / Time
Site:	Peach Bottom
Issue date:	02/08/1988
From:	Irwin D HUNTON & WILLIAMS, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	NRC COMMISSION (OCM)
Shared Package
ML20147B981	List: ML20147B975 ML20147B994
References
NUDOCS 8803020283
Download: ML20147B994 (23)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION h the Matter of )

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?HILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-277, 50-278

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(Peach Bottom Atomic Power Station. )

Units 2 and 3) )

PHILADELPHIA ELECTRIC COMPANY'S ANSWER TO COMMONWEALTH OF PENNSYLVANIA'S PETITION TO INTERVENE IN PROCEEDING ON PROPOSED AMENDMENTS TO PEACH BOTTOM FACILITY OPERATING LICENSES i l

Philadelphia Elect ric Company (hereinaf ter "PE") hereby opposes the petition of the Commonwealth of Pennsylvania (hereinaf ter "Commonwealth"NI to intervene and to request a hearing in the proceeding on proposed amendments to PE's Facility Op .

erating Licenses for the Peach Bottom Atomic Power Station. PE also responds to the Commonwealth's comments on the Staff's proposed finding that PE's amendments raise l no significant hazards considerations; PE confirms that the Staff's finding is correct and that the amendments should be made permanently effective.2/

e 1/ Commonwealth of Pennsylvania's Petition to Intervene Request for Hearing and Comments Oppc.dng No Significant Hazarde Consideration, January 22,1988 (hereinaf-ter ': Petition").

2/ Under the Commission's regulations, the Commonwealth is not entitled to a hearing on the Staff's proposed no significant hazards consideration determination.

10 CFR S 50.58(b)(6)(1936). Written comments on the Staff's proposed finding should be filed with the Commission Staff. _Se_e 52 Fed. Reg. at 48,596 at col. 3 (December 23, 1986). Accordingly, PE is also lodging a copy of this response to the Commonwealth's comments with the Commission's Rules and Procedures Bianch.

0803020283 800210 DR ADOCK 05 7

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The purpose of the instant proceeding is to determine whether PE should be per-mitted to amend technical specifications regarding organization and administration at its Peach Bottom facility. PE does not dispute that the Commonwealth has, as Darens patriae, a legally cognizable interect in protecting the health and safety of the citizens of Pennsylvania. S_ee Petition at 7. What PE does dispute is that the Commonwealth has demonstrated, as it must as a putative intervenor proceeding under 10 CFR S 2.714, that that interest may be adversely affected by the Commission's proposed action in this instance. To the extent that the Commonwealth seeks to raise issues affecting the potential safety of operation of the Peach Bottom plant, those issues do not fall within the scope of the issues presented by the technical specithation modifications being sought. Indeed, the Commonwealth's current Petition seeks te raise issues of the same sweeping scope as were presented by an earlier November 20,1W7 petition which was denied.E Thus, the Commonwealth's legally cognizable interests are not affected by the action currently contemplated: final approval of various technical specification amendments which relate only to organizational structure.

I. BACKGROUND On March 31,1987 the Commission issued an Order shutting down Peach Bottom and requiring PE to provide a detailed and comprehensive plan prior to restart for as-suring that Peach Bottom Units 2 and 3 would operate safety and comply with all Com-mission requirements. 52 Fed. Reg.11,386 (April 8,1987). PE identified four causes of 3/ See letter, Samuel J. Chilk (NRC) to Morey M. Myers (Commonwealth of Pennsylvania), January 13,1988.

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declining performance at the plant.M On November 25, 1987, PE submitted its Plan for Restart of Peach Bottom Atomic Power Station,Section I, Corporate Action (hereinaf ter "Plan for Restart" or "Plan"), the first part of a comprehensive plan for assuring the safe operation of Peach Bottom Units 2 and 3.Section I describes only the corporate organizational corrective actions, addressing the fourth root cause. The remainder of PE's Plan for Restart, containing the Site Action Section of the Plan and addressing the first three root causes identifiert by PE, is scheduled to be submitted to the Commission shortly.

By letter dated November 19,1987 PE submitted an application to mod!'y tech-nical specifications regarding organization and administration for the Peach 8)ttom Station. These amendments are intended to reflect the organizational chareas de-scribed in Section I of PE's Plan for Restart. The proposed amendments to the '.achni-cal specifications for the Peach BotMm facility operating license crver we following four areas:

. Corporate Organizational Structure, includiq rep! ace" ment of the offices of Senior Vice President-Nut.iar Power, Vice President-Electric Production Managet-Nuclear Production, and Superintendent-Quality Assur ance Division, with officas for a Senior Vice President-Nuclear with four Vice Presidents and a General y These causes were identificd as (1) lack of adequate personal leadership and management skills on the part of senlot management at the plant; (2) failure of the Company to initiate timely licensed operator replacement training programs; (3) f ailure of the station culture, which had its roots in fossil and pre-TMI operations, to adapt to changing nuclear requirements; and (4) fa!!ure of corporate management to recognize the developing severity of problems at Peach Bottom and to take sufficient corrective actions. _See Plan for Restart of Peach Bottom Atomic Power Station,Section I, Corpo-rate Action, at 1 (November 25,1987).

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Manager for Nuclear Quality Assurance reporting to him (two of the new Vice Presidents would be located at the Limedek and Peach Bottom plant sites to estab-lish an oncite corporate presence);

2. Plant Staff Organizational Structure, including expan-sic.: of positions to include a number of new positions at both the Manager and Superintendent levels

3. Plant Operations Review Committee membership changes, including expansion of the membership of the Committee and replacement of the Manager-Nuclear Plant with the Superintendent-Operations as Chairman of the Committee; and

4. Administrative Changes, including miscellaneous tech-nical and conforming changes.

Em 52 Fed. Reg. 48,593-95 (December 23,1987).

On December 18,1987, the Commission issued to PE a temporary waiver of com-pliance concerning deviations from the relevant organizational structures described in.

Section 6 of the existing facility technical specifications pending completion of Staff review of PE's proposed amendments. By the same letter, the Commission permitted PE to implement its proposed amendments subject to final approval. Letter, Steven A.

Varga (NRC) to Edward G. Bauer, Jr. (PE), Deceniber 18,1987.

On December 23, 1987, the Commission published notice of the Staff's proposed no significant hazards consideration determination on PE's proposed technical specifi-cation ameada.ents and Notice of Opportunity for Hearing. 52 Fed. Reg. 48,593 (December 23,1987). The Commission's Notice also solicited comments on the Staff's proposed no significant hazards consideration determination. Ld. at 48,596; see 10 CFR S 50.91. The Commonwealth filed the instant petition for leave to intervene and re-quect for a hearing on January 22,1988.EI

!/ The Commonwealth had previously filed a petition for hearing and request to in-tervene, dated November 20, 1987, alleging the same types of !ssues and many of the (footnote continued) i U

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l H. DISCUSSION The Commonwealth's petition is essentially in three parts: first, the Cc:ranon-wealth seeks leave to intervene in the proceeding; second, the Comatonwealth requests a hearing under 10 CFR S 2.714; finally, the Commonwealth submits comments on the Commission's proposed no significant hazards consideration determination, asserting that PE's proposed amendments raise significant safety issues.

PE's answer to the Commonwealth's petition is in two parts. First, PE will show that the Commonwealth is not entitled to intervene because it has not shown that the action proposed by the Commission may adversely affect the Commonwealth's legally cognizable interests as required by 5 2.714(a)(2) and (d). The principal reason is that the issues it seeks to raise are outside the scope of PE's proposed technical specifica-tion amendments. Second, PE will confirm that the Staff's proposed no significant haz-ards consideration finding is correct and that the amendments should be made perma-

, nently effective.

(footnote continued) same specific facts as the current petition. The Commission rejected that petition by letter dated January 13, 1988 from Samuel J. Chilk, Secretary of the Commission, to Morey E. Myers (General Counsel, Commonwealth of Pennsylvania), in that letter, the Commission noted that the Commonwealth could seek to raise such issues under S 2.206 of the Commission's regulations.

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A. The Commonwealth's Petition for Intervention and Request for Hearing Should Be Denied Because It Has Not Shown Rat its Legally Cornirship laterests Are Affected by the Proposed Amendments The Commission's regulations on intervention,10 CFR S 2.714, require any would-be intervenor to file a timely petition to intervene with particular reference to three factors: (1) the nature of the petitioner's right to be made a party to the pro-ceeding under the Atomic Energy Act; (2) the nature and extent of the petitioner's property, financial or other interest in tM proceeding, and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interes. 10 CFR S 2.714(d). Inis regulatory provision is recited in the Notice of Opportunity for Hearing in this proceeding. 52 Fod. Reg. at 48,592 col .3.

.is indicated above, PE does not dispute that the Commonwealth of Pennsylvania has a general ir.ierest, as parens patriae, in the safety of operation at the Peach Bot-tom Station. What PE dots, dispute is tha.: the Commonwealth has raised issues properly within the scope of the current proceeding, that are within the zone of its interest or that its interest would be adversely affected by the Commission's proposed order in this proceeding. Those issues, discussed in detail in the Notice of Opportunity for Hearing, 52 Fed. Reg. at 48,590-92, are restricted to a narrow scope affecting PE's corporate or-ganization and the Peach Bottom plant organization. Resolution of these issues is not. -

and is not represented as being, sufficient to permit the Peach Bottom plant to restart.

l The Commonwealth's petition seeks to raise a much broader scope of issues than j is actuall,posed by the proposed amendments. As a result, the Commonwealth fails to l

satisf/ the second and third tests for intervention: a demonstration of its legally i

. cognizable interest in the proceeding itself, and a demonstration of how that interest would be adversely affected if the proposed action were taken. For this reason, the re-quested intervention and hearing must be denied.5/

The Commonwealth seeks to intervene in this proceeding to raise a number of is-sues. It alleges, without supporting affidavits or other discussion, that the technical specification amendments themselves are "inadequate." Petition at 7.I However, it also raises essentially the same broad range of issues which it presented, and which were rejected as untimely, in its November 20, 1987 petition. In their petition the Commonwealth had sought a hearing for the following purposes:

To assure that the eventual changes comprehensively address the deficiencies in operation, to assure that those changes re-flect the views of the Commonwealth and all parties con-cerned, and to assure public confidence in any resumption of operations . . .

g/ That is not to say that the issues sought to be raised now by the Commonwealth may not become proper at some future point in the Commission's proceedings preceding restart of Peach Bottom, when the remaining, still-to-be-submitted aspects of PE's Plan for Restart are evaluated by the Commission. Nor is it to concede that the Common-wealth's desire for a hearing will necessarily be properly asserted then; it all depends on the issues presented. It is merely to say that the issues raised by this Commission no-tice in this portion of the restart proceeding do not affect the interests sought to be protected by the Commonwealth.

I/ The Commonwealth alleges that the technical specification amendments are "in-adequate" for the following reasons: they do not contain all of the changes proposed in the Plan; they do not describe the function, responsibilities or qualifications of the in-dependent safety evaluation group (ISEG); they do not provide the ISEG access to the plant heirarchy; they contain no provisions to limit working hours; they do not give the Commission authority to oversee transfer of personnel from Peach Bottom to Limerick; and they do not describe the minimum qualifications for personnel. Petition at 7-10.

However, these issues are not within the scope of issues raised by the proposed amend-ments.

. Commonwealth of Pennsylvania'3 Petition for Hearing at 2 (November 20,1987).II in its current Petition the Commonwealth requests a hearing on essentially the same is-sues, asserting that "[t]he material factors in this proceeding . . . include the analysis of the root causes of Peach Bottom's difficulties and the appropriateness of each of the proposed responses." Petition at 10. The Commonwealth thus seeks to raise issues well outside the scope of the instant proceeding.

Under the Commission's regulations, a party seeking to intervene in a proceeding must set forth "with particularity" its interest in the proceeding, how that interest may be affected by the results of the proceeding, and the specific aspect or aspects of the 1/ In its November 20,1987 petition for a hearing, the Commonwealth provided the following further elaboration on the issues it felt should be addressed in a hearing:

1. The scope of management reorganization and personnel changes necessary to ensure that poor performance and complacency are not tolerated;

2. The plant operating procedures and disciplinary rules neces-sary to ensure that plant operators and support personnel adhere to NRC rules and procedures:

3. The changes in employee hiring, evaluations, and review practices necessary to address the drug abuse problems; The hiring of additional qualified personnel to insure suffi-4.

cient staffing at all nuclear plants operated by PECO; and

5. The adequacy of the final submission by PECO in response to the March 31,1987 suspension order.

The hearing should also address any other concerns uncovered by the NRC or raised by the Petitioner or any other in-terested parties.

Commonwealth of Pennsylvania's Petition for Hearing at 6-7 (November 20,1937).

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. subject matter of the proceeding as to which the petitioner wishes to intervene.

10 CFR S 2.714(a)(2). In describing how its interest may be affected by the results of the proceeding, the petitioner must provide sufficient detail to allow the Commission to determine, among other things, the possible offect of any order entered in the pro-ceeding on the petitioner's interest. 10 CFR S 2.714(d)(3); see BPI v. Atomic Enern Commission,502 F.2d 424 (D.C. Cir.1974).

The scope of a proceeding, i.e., the range of issues posed by proposed Commis-sion action, is defined by the Commission and described in the Commission's notice of opportunity for hearing. _See 42 USC S 2241(a)(1980); Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-249, 8 AEC 980, 987 (1974); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),

ALAB-316,3 NRC 167,170 (1976).

In the present proceedir.g on PE's proposed amendments, the Commission has ap-propriately defined the scope of the proceeding to the narrow scope of the proposed amendments. First, the Commission has carefully described the proposed amendments.

52 Fed. Reg. at 48,593-95. Second, the notice reiterates the requirement of 10 CFR S 2.714(d)(3) that the petitioner should indicate how the order will affect its interest.

Id. at 48,597 col.1. Finally, the notice provides that "(clontentions shall be limited to matters within the scope of the amendment under consideration." Ld. at col. 2. Thus, this proceeding is appropriately limited to the question of whether the facts support the Commission's proposed Order to implement the technical specification amend-ments,i.e., whether the amendments themselves pose threats to public health and safe-ty. _See Wisconsin Electric Power Co. (Point Beach Nuclear Plant. Units 1 and 2),

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LBP-82-88,16 NRC 1335,1342 (1982) aff'd ALAB-739,18 NRC 335 (1983); Philadelphia Electric Co. (Limerick Generating Station, Unit 1), LBP-86-9. 23 NRC 273, 275-77 (1986);.cf. Boston Edison Co. (Pilgrim Nuclear Power Station), CLI-82-16,16 NRC 44,45 (1982) ("The Commission may limit the issues in enforcement proceedings to whether the facts as stated in the order are true and whether the remedy selected is supported by those f acts."k The Commonwealth's Petition for intervention f ails to raise any issues which are within the scope of the p oceeding on PE's proposed license amendments. First, a num-bar of the Commonwealth's allegations have nothing to do with organizational and ad-ministrative restructuring. Work-hour limitations, for example, are not related to PE's organizational structure. See Petition at 7-8. The function, responsibilities, or qualifi-cations of ISEGs also are not related to corporate or plant organization. g at 8. Nei -

ther is the authority of the Commission to oversee the transfer of personnel between the Peach Bottom and Limerick facilities related to organizational restructuring. M. at 2/ The Commonwealth alleges that the adequacy of PE's entire Plan for Restart is properly within the scope of the hearing by virtue of the following language in the Commission's notice of opportunity for hearing:

The information in the Plan has been considered by the staff to be supplementary to the licensee's application for amend-ment.

52 Fed. Reg, at 48,593 col. 3. _S_ee_ Petition at 10-11. The Commonwealth's assertion is at odds with the express limitations placed on the hearing by the Notice. A hearing on PE's entire Plan would render meaningless the Commission's express direction that con-tentions should be limited to matters "within the scope of the amendment under consid-eration." Id. at 48.597 col. 2. The reference in the Commission's notice on which the Commonwealth relles refers only to Section I of PE's Plan and merely indicates that the technical specification amendments are intended to reflect Section I of the Plan.

9 ii.s the Commonwealth cannot rely on these allegations to intervene in this pro-coeding on PE's prJposed technical specification amendments.

Indeed, the Commonwealth's allegations concerning PE's proposed amendments fall at a more basic level. The Commonwealth may not simply allege that the proposed amendments do not go far enough; it must allege with specificity that the proposed changes themselves would raise safety concerns. See Wisconsin Electric Power Co.

(Point Beach Nuclear Plant, Units 1 and 2), LBP-82-88,16 NRC 1335,1342 (1982) aff'd ALAB-739,18 NRC 335 (1983). The Commonwealth makes no such allegations;it only argues that the proposed changes are "inadequate," 1.e., that they do not go f ar enough toward protecting public safety. Petition at 7. Inasmuch as the proposed amendments alone do not purport to fully meet the Commission's conditions for restart of Peach Bottom, the Commonwealth falls to show that the proposed amendments raise issues which adversely affect its legally cognizable interests.

The Commonwealth's petition to test the "adequacy" of PE's proposed amend-ments is nearly the same as the petition which the Commission denied in Boston Edison

% (Pilgrim Nuclear Power Station) CLI-86-16,16 NRC 44 (1982) aff'd sub nom. _

Bellotti v. United States Nuclear Regulatory Commission, 725 F.2d 1380 (D.C. Cir.

1983). In that case, the Commission had ordered Boston Edison (BECO) to develop a plan for the reappraisal and improvement of utility management functions at its Pil-i grim nuclear facility. The Attorney General of the Commonwealth of Massachusetts petitioned to intervene, asserting the following concerns:

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(1) Without participating in the review of BECO's proposed corrective actions, the public can have no assurance

- that continued operation of the f acility will not jeopar-dize their health and safety . . .;

(2) If the NRC requires the wrong, or insufficient changes in BECO's management systems and controls, an exist-ing threat to public health and safety will continue; (3) If NRC falls to require timely management changes this threat will continue: and (4) If BECO falls to properly implement necessary man-agement changes this threat will continue indefinitely.

16 NRC at 46.

Citing the requirements for intervention under 10 CFR S 2.714, the Commission denied the Attorney General's petition to intervene. The Commission wrote:

These concerns are beyond the scope of the proceed- ,

ing. The Attorney General does not oppose the issuance of the Order nor does he raise in his petition or brief any sugges-tion that it is unsupported by the f acts it sets forth.

16 NRC at 46.

On appeal, the Court of Appeals for the District of Columbia upheld the Com-r Elon's decision. The court first affirmed that the Commission has exclusive authori- ,

ty to define the scope of its own proceedings. Such authority is necessary, the court i noted, to avoid "virtually interminable, free-ranging investigations." 725 F.2d at 1381.

The court then held that the Massachusetts Attorney General's petition did not raise is-sues within the scope of the proceeding as defined by the Commission. The court wrote i

that the Attorney General's petition 'vould result in a hearing virtually as lengthy and l wide-ranging as if intervenors were allowed to specify the relevant issues themselves."

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g. at 1382.EI Clearly, granting the Commonwealth of Pennsylvania's instant petition for intervention and a hearing would create exactly that kind of "amorphous" proceed-ing which the Bellotti court sought to avoid. 725 F.2d at 1382.UI B. The Commonwealth Falls to Show That the Staff Erred in its Prnanand No Slanificant Hazards Considerations Determination As the second part of its petition, the Commonwealth submits "comments" on the Staff's proposed no significant hazards consideration determination in which it ar-gues that the Staff's proposed finding is incorrect under the criterion of 10 CFR S 50.92(c).O Petition at 12-20: see 52 Fed. Reg. at 48,595-96.

In its proposed finding, the Staff concludes that the proposed amendments do not involve significant hazards considerations under any of the three criteria of 10 CFR S 50.92(c). The Staff finds that the proposed changes are directed at bringing about M/ The Court of Appeals noted, however, that the Attorney General could pursue consideration of Massachusetts' broader concerns under 5 2.206 of the Commission's regulations. 725 F.2d at 1383. The Commission has done likewise here in its January 13 letter.

M/ The Commonwealth argues that its right to intervene is supported by Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.1984). Petition at 10. In that case, the court held that the Commission may not remove issues which are material to the licensing decision from the adjudicatory process. In the present proceeding, the Commission is not excluding issues which are material to the licensing proceeding; in-stead, the Commission is exercising its authority to determine which issues are in fact material. See Bellotti, 725 F.2d 1380 (D.C. Cir.1983). Thus Union of Concerned Scientists offers no support for the Commonwealth's petition for intervention.

M/ Such comments do not give rise to hearing rights. See 10 CFR S150.58(b)(6). The determination of no significant hazards considerations is one that can only be made by the NRC Staff or the Commission and cannot be challenged in a licensing proceeding.

See Vermont Yankee Nuclear Power Co. (Vermont Yankee Nuclear Power Station),

LBP-87-17,25 NRC 838, 843-44, afI'd and rev'd in p_a.rt, a A1.AB-869,26 NRC 13 (1987).

f improvements which will provide further control of and reduce the probability or con-sequences of accidents previously evaluated; that the changes do not involve any physi-cal modification in plant hardware, plant design or plant systems operation that would create the possibility of a new or different kind of accident from any accident previ-ously evaluated; and that since the changes are directed at providing improved features and safety enhancements, they do not involve a significant reduction in the margin of safety. _Sgg 52 Fed. Reg. at 48,595-96. The following discussion of the Commonwealth's comments confirms that the Staff's proposed determination is correct and that the amendments should be made permanently etfective.

Under the Commission's regulations, proposed amendments to a facility op-erating license may be made immediately effective if a determination is made that the amendments do not pose significant hazards considerations.10 CFR S 50.91(aX4). Such-amendments may be made immediately effective even if adverse pubtle comments have been received and even if an interested party qualifying for intervention under 5 2.714 has filed a request for a hearing. Id.

Section 50.92(c) of the Commission's regulations contains the standards for de-termining whether proposed amendments involve significant hazards considerations.

An amendment involves no significant hazards consideration if it would not:

(1) Involve a significant increase in the probability or con-aequences of an accident previously evaluated; or (2) Create the possibility of a new or different kind of accident f rom any accident previously evaluated; or (3) Involve a significant reduction in a margin of safety.

10 CFR S 50.92(c).

The Commonwealth asserts that the proper focus under S 50.92 "should not be on the proposed solution, i.e., the amendment, but on the problems giving rise to the need for a solution." Petition at }3. The Commonwealth makes three arguments in support of this view: first, that the legislative history of SS 50.91 and 50.92 "points to a focus on the problem not the proposed wlution," M.; second, that no significant hazards con-sideration determinations should only be made in the case of "routine" amendments, id.

at 14; and third, that the Commission has expressly indicated that no significan*, haz-ards consideration determinations are not appropriate for amendments like the ones proposed by PE, M. at 14-15. These arguments are erroneous, as shown below.

1. The IAgislative History of the Commission's Regulations Does Not State or Imply That the Focus Under S 50.92(c) Should Be the Reason for the Amendment Rather Than the Amendment itself The Commonwealth argues that the legislative history of the so-called Sholly Amendments to the Atomic Energy Act of 1954EI "points to a focus on the problem nct the proposed solution." Petition at 13. The Commonwealth bases its argument on the statement in the Conference Report to the effect that the Staff should not pre-judge the merits of a proposed amendment in determining whether it raises significant hazards considerations.M/

M/ Pub. L. No.97-415, 96 Stat. 2067, 42 USC S 2239 (1980 and 1987 Supp.).

14/ PE's ability to evaluate the Commonwealth's argument on this point is impaired by the fact that the quotation of the Conference Report upon which it relles (bottom of page 13 of its Petition) does not exist at the indicated citation or elsewhere in the ref-erenced document, to the best of PE's research.

s The Commonwealth clearly errs in its reading of the legislative history. The Conference Committee's comments are intended to indicate that the Staff should not make no significant hazards consideration determinations on amendments for which it may have questions concerning safety implications. According to the Committee:

These standards should be capable of being applied with ease and certainly, (sic) and should ensure that the NRC staff does not resolve doubtful or borderline cases with a finding of no significant hazards consideration.

1982 U.S. Code Cong & Ad. News at 3607. The legislative history clearly does not sug-gest that the Staff should open its consideration to factors serving as the basis for the proposed amendment.El Indeed, the language of the regulation itself provides that "the proposed amendment" should be evaluated under the three enumerated criteria.

S 50.92(c). Thus, the Staff is not required to consider issues other than those which are necessary to determine whether the proposed technical specification amendments raise significant hazards considerations.

2. PE's Proposed Amendments are Sufficiently "Routine" to Qualify for No Significant Hazartti Consideration _

The Commonwealth also argues that PE's proposed amendments are not suffi-ciently "routine" to qualify for consideration under the Commission's no significant haz-ards regulations. The Commonwealth relles on the Commission's statement in the preamble to the regulations that M/ The legislative history does say, however, that a State may not veto a proposed no significant hazards consideration determination, may not claim a right to a hearing before the amendment becomes effective, and may not insist upon a postponement of the Commission's determination or issuance of the amendment. 1982 U.S. Code Cong.

& Ad. News at 3609.

since most requested Ucense amendments involving no signifi-cant hazard consideration are routine in nature, prior hearing on such amendments could result in unwarranted disruption or delay in the operations of nuclear plants and could impose regulatory burdens upon it and the nuclear industry that are not related to significant safety matters.

48 Fed. Reg. 14,864,14,866 col.1 (April 6,1983). The Commonwealth asserts that

"(c]hanges motivated by breakdowns in operations that lead to immediate shutdown because they present 'immediate safety hazards' are hardly routine," Petition at 14, and therefore the Staff erred in concluding that PE's proposed amendments involve no sig-nificant hazard considerations.

The Commonwealth's argument is unavailing for several reasons. First, the Commission's guidance reflects an expectation that that which should be "routine" is the proposed amendment itself and not the circumstances out of which the amendment arose. Thus, whether or not the circumstances underlying PE's amendments are "rou-tine" is irrelevant to the question presently before the Commission: whether PE's pro-posed amendments themselves raise significant hazards considerations.

Second, it is clear that PE's amendments are in fact "routine." Similar proposed changes have been found by the Staff to involve no significant hazards consideration determinations. See, el, 52 Fed. Reg. at 39,576 (October 22,1987)(proposed finding of no significant hazards on amendments to technical specifications for organizational structure at Cleveland Eltetric illuminating Company's Perry nuclear facility). In its letter of December 18, 1987, the Commission allowed PE to implement its proposed changes immediately in order to minimize potential uncertainty about licensee person-nel and organizational assignments at both Peach Bottom and Limerick. The clear

' implication of the Staff's temporary approval of PE's amendments is that they are not extraordinary and do not raise safety considerations.

Finally, assuming arrvendo that the pending amendments were not routine, the regulatory guidance cited by the Commonwealth does not present a bar to their consid-eration under SS 50.91 and 50.92. The Commission's language merely says that "mgg requested license amendments involving no significant haurd considerations are rou-tine in nature" (emphasis added). Thus, a non-routine amendment which does not raise significant safety lasues may still be considered under the regulations. The Common-wealth fails in any part of its petition or comments to show that PE's amendments themselves raise significant safety issues. Thus, the regulatory language etted by the Commonwealth cannot be read to show that the Staff erred in its proposed determina-tion that PE's amendments involve no significant haurds consideration.

3. A No Significant Hazarti Consideration Determination Is Not Procluded By Other Lanruare In the Commission's Rerulations The Commonwealth argues that PE's proposed amendments fall within the ambit of those amendments which the Commission has said are considered likely to involve a significant haurds consideration. Petition at 14-15. Speci!!cally, the Commonwealth argues that PE's amendments would pose the same level of significant haurds ad

[a] change in plant operation designed to improve safety but which, due to other factors, in fact allows plant operation with safety margins significantly reduced from those believed to have been present when the license was issued.

51 Fed. Reg. at 7751 col.1.

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The Commtentan's _ description above is plainly inapposite to PE's ' proposed amendments. While PE's proposed amendments are designed to improve safety, they will not allow or lead to plant operation at reduced safety levels. In fact, approval of -

PE's proposed amendments will not lead automatically to restart of the Peach Bottom facility. The Staff has said it will not allow restart until it is satisfied that adequate safety standards are achieved.III Thus, PE's proposed amendments concerning man-agement reorganization will not themselves allow operation with significantly reduced safety margins and thus are not, as the Commonwealth contends, amerkiments that are considered likely to involve a significant hazards consideration.

4. The rammanwealth Fails to Rebut the Cammimminn's Proposed Finengs That PE's Amendments involve No Slenificant Hazare Considerations In addition to the above arguments on the appropriate scope of the Staff's review of a no significant hazards consideration determination, the Commonwealth contends that PE's proposed amendments raise significant hazards considerations under each of the three criteria of $ 50.92(c). Petition at 15. In fact, its arguments go only to the first two of the three criteriaNI and are unsubstantiated by any affidavits, expert in-formation or citations to any material not already before the Commission when it re-

.jected the Commonwealth's earlier petition. As shown below, the Commonwealth f ails 11/ Those Staff inquiries will focus on, among other things, the forthcoming portions of PE's Plan which will address the first three root causes already identified by PE.

These are inquiries in addition to that whleh is the focus of the pending amendments.

H/_ Without explanation, the Commonwealth falls to explain or illustrate its asser-tion that PE's amendments raise significant hazards considerations under the third cri-terion of 5 50.92(e).

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to rebut the Commission's propeced finding that PE's proposed amendments raise no sig-nificant hazards considerations.

The Commonwealth asserts that unless PE's proposed amendments themselves entirely make up for the problems discovered at Peach Bottom, operation under the amendments will involve significant increases in the probability or consequences of an accident previously evaluated. Petition at 16. According to the Commonwealth:

Even if the Commission therefore believes that the proposed amendments are probably adequate, at least significant safety issues are involved, and a hearing is required prior to issuance of the license amendments.

Id. a( 17.

The Commonwealth's reasoning is again based on an incorrect assumption con-cerning the scope of the hearing on PE's proposed amendments and the status of PE's amendment requests. PE does not expect approval of these amendments alone to clear the way for restart of the Peach Bottom facility. Furthermore, the relevant question under S 50.92(cX1) is not whether proposed amendments are made in the context of sig-nificant safety issues but rather whether the amendments themselves are likely to in-volve a significant increase in the probability or consequences of an accident previously evaluated. By f alling to address, much less meet, this standard, the Commonwealth has failed to show that PE's proposed amendments raise a significant hazard consideration under S 50.92(cX1).

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The Commonwealth also asserts, apparently in an ettempt to satisfy 3 50.92(cM2) justifiably, that operation under PE's proposed amendments would create the possibility of a new or cifl'erent kind of accident from any accident previously evaluated. Specif1-cally, the Commonwealth crgues that "design basis" accidents are evaluated presuming sound management. "When management deteriorates and, in partleular, when miscon-duet may go uncovered, new kinds of accidents become possible." Petition at 17.

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The Commonwealth's argument again presumes that the entire range of issua*.on PE's proposed plan to restart the Peach Bottom faellity are relevant to the question of whether PE's proposed amendments on management changes involve significant hazards considerations. In fact, the only relevant question is whether the improvements in management organization proposed by PE would create the possibility of a new or dif-forent kind of accident from any accident previously evaluated. PE's proposed amend .

ments do not alter the plant physically or procedurally; they merely create an organiza-tional framework of sound management whleh the Commonwealth acknowledges is presumed in the evaluation of "design basis" accidents. Thus, these amendments do not create the possibility of a new or different kind of accident from any accident previ-ously evaluated.

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.. CONCLUSION For the reasons given above, Philadelphia Electric hereby requests that the Commonwealth's petition for intervention and a hearing on PE's proposed amendments should be denied. However, the Commonwealth's comments fail to show that the pro-posed amendments involve significant hazards considerations, the Commission should promptly make the amendments permanently effective.

Respectfully submitted.

! sW N ~

Geor'ge C. Freeman, Jr.

Donald P. Irwin Counsel for Philadelphia Electric Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 Of Counsel:

William T. Coleman, Jr., Esq.

John H. Beisner, Esq.

O'Melveny & Myers 555 - 13th Street, N.W.

Washington, D.C. 20004 Eugene J. Bradley, Esq.

Philadelphia Electric Company 2301 Market Street Philadelphia, PA 19101 DATED: February 8,1988

February 8,1988 l

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CERTIFICATE OF SERVICE

! hereby certify that copies of PHILADELPHIA ELECTRIC COMPANY'S ANSWER TO COMMONWEALTH OF PENNSYLVANIA'S PETITION TO INTERVENE IN PROCEED-ING ON PROPOSED AMENDMENTS TO PEACH BOTTOM FACILITY OPERATING LICENSE were served this date upon the following by first-class mall, postage prepaid.

Lando W. Zech, Jr., Chairman Commissioner Kenneth C. Rogers U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W. 1717 H Street, N.W.

Washington, DC 20555 Washington, DC 20555 Commissioner Thomas M. Roberts Secretary of the Commission U.S. Nuclear Regulatory Commission Attention Docketing and Service 1717 H Street, N.W. Section Washington, DC 20555 U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Commissioner Frederick M. Bernthal Washington, D.C. 20555 U.S. Nuclear Regulatory Commission 1717 H Street, N.W. Morey M. Myers Esq.

Washington, DC 20555 General Counsel Commonwealth of Pennsylvania Commissioner Kenneth M. Carr Offlee of General Counsel U.S. Nuclear Regulatory Commission P.O. Box 11775 1717 H Street, N.W. Harrisburg, PA 17108 Washington, DC 20555 1

Donald P. !rwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: February 8,1988 i

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