ML20153G577

Motion Opposing Rl Anthony 860212 Motion for Stay of Amend to License NPF-39.Request Untimely,Fails to Disprove NSHC or Prove Threat of Personal Harm

ML20153G577
Person / Time
Site:	Limerick
Issue date:	02/25/1986
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	NRC COMMISSION (OCM)
Shared Package
ML20153G581	List: ML20153G577 ML20153G596
References
CON-#186-228 OLA, NUDOCS 8602280352
Download: ML20153G577 (11)

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DOCKETED USNHC UNITED STATES OF MERICA NUCLEAR REGUIA'IORY CGWSSION

'86 FEB 27 Pl?:55 Before the Comtission CFFICL y ..

In the Matter of ) 00CKETpu2 1 6

} ORANcn Philadelphia Electric Carpany ) Docket No. 50-352-OLA

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(Limerick Generating Station, )

Unit 1) )

LICENSEE'S ANSWER IN OPPOSITION 'IO REQUEST BY ROBERT L. ANTHONY FOR A STAY Preliminary Statenent This matter concerns a late-filed petition by Robert L. Anthony for leave to intervene and for a hearing with respect to the proposed issuance of an amendment to the operating license of Limerick Generating Station, Unit 1 (" Limerick"). After public notice in the Federal Register on Decarber 26, 1985, the NRC Staff prepared a written safety evaluation and otherwise fulfilled the requirements of 10 C.F.R. SS50.91 and 51.92 pricr to granting the requested amendnent " effective 1mnedi-ately" on February 6, 1986.

On January 30, 1986, Mr. Anthony filed his petition seeking inter-vention and requesting a hearir.g, which the Secretary rejected for noncorpliance with the rules. Mr. Anthony filed an amended petition dated February 5, 1986, which the Secretary referred to the Atanic Safety and Licensing Ecard Panel. An Order was entered on Februvy 12, 1986 establishing an Atmic Safety and Licensing Board (" Licensing Board") to rule upon p?titicns for leave to intervene and/or requests 8602280352 860225 PDR ADOCK 05000352 G PDR m

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.s for hearing and to preside over the prMing in the event that a hearing is ordered.

In furtherance of his petition, Mr. Anthony filed another paper dated February 12, 1986, which asked the Cmmission "to suspend the effectiveness of the amendment until a hearing and a decision based on the hearing." Licensee Philadelphia Electric Ccupany (" Licensee")

opposes the application by Mr. Anthony for a stay.1/

Preliminarily, Licensee believes that only the C.mmission possesses authority to overturn the inmediate effectiveness of the amendment at issue. The Cm mission's reculations governing license amendments do not provide for the grant of a stay by the licensing board subsequently designated to rule upon hearing requests after the Camission, by its Staff, has determined that the proposed amendment involves "no signifi-cant hazards consideration." Therefore, the matter of the stay request, as distinct frmi the substantive challenge to the amendment, is properly before the Camission and is not within the delegation of authority noted in the Order establishing the Licensing Board to preside over the instant amendment proceeding.

On the merits of the stay request, Mr. Anthony has wholly failed to satisfy applicable stay criteria. His petition should therefore be sumarily denied.

1/ In its Answer filed February 19, 1986, Licensee opposed Mr.

Anthony 5s petition for leave to intervene and for a hearing.

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Argument I. Mr. Anthony's ReqJest for a Stay of the Effectiveness of the Amendment Should Have Been Sought Before the Cmmission During the 'Itirty-Day Cmment Period.

Petitioner's request for a stay of the license amendment granted by the Camission to be " effective in-liately" appears to raise a novel issue. Licensee is unaware of any other instance in which such an amendment has been granted and a petitioner has sought a stay frm the Ccmnission or the licensing board designated to rule upon intervention petitions and to preside over any subsequent hearing in the proceeding.

Accordingly, it is nccessary at the outset to examine whether the camission has delegated stay authority to licensing boards in license amend =cnt proccodings.

The grant of a stay would overturn the decision of the NRC Staff, acting as the delegate of the Cmmission under 10 C.F.R. 550.91, in determining that the license amendment involves no significant hazards consideration and should be made effective in=vii,tely. If such authority has not been delegated to adjudicatory boards, the Cmmission nust decide Mr. Anthony's stay request because the licensing board appointed to rule on the petition by Mr. Anthony to intervene lacks jurisdiction to do so.2/

2/ The Appeal Board recently sumarized this fundamental principle in the Catawba proceeding as follows:

Adjudicatory boards do not have plenary subject matter jurisdiction in Ca mission proceedings. Under the Atmic Energy Act, the Nuclear Regulatory Cmmission is enpowered to administer the licensing provisions of the Act (Footnote Continued)

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Under its regulations, the Comnission has taken a fundamentally different approach with regard to a stay of a board's adjudicatory decision and a stay of an operating license iniumlient issued by the Staff as its delegate. Under 10 C.F.R. S2.788, a party to a proceeding may obtain a stay of a decision or action by the presiding officer or the Atanic Safety and Licensing Appeal Board by meeting the four stated  ;

criteria. For operating license amendments, however, a different procedure has been established for determining whether or not licensing action will be imediately effective.

khenever a license amendment is requested, the NBC is required by its regulations to publish in the Federal Register a notice of the propoced licence amendment, including the Staff's proposed determination as to whether the request involves "no significant hazards consid-eration." The notice must provide a 30-day coment period. ! Following the 30-day carment period, the Staff makes its final determination as to "no significant hazards consideration" if a hearing is requested.4/

(Footnote Continued) and use licensing boards "to conduct such hearings as the Cannission may direct." 'Ihe boards, therefore, are delegates of the Cmmission and, as such, they may exercise authority over only those matters that the Comnission cmmits to them. The various hearing notices are the means by which the Camission identifies the subject matters of the hearings and delegates to the boards the authority to conduct proceedings.

Duke Power Carpany (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790 (1985) (footnotes unitted) .

3f See 10 C.F.R. 550.91(a) (2) .

1 4/ 10 C.F.R. SS50.91(a) (3) and 50.92(c) .

1 Once the Staff finds that it involves no significant hazards consideration, the Staff may issue the amendment, effective inmediately, even if a hearing is requested. S e regulations state:

, Where the Ca mission makes a final determina-tion that no significant hazards consideration is involved and that the amendment should be issued, the amendment will be effective upon issuance, even if adverse public cmments have been received and even if an interested person meeting the provisions for intervention called for in $2.714 has filed a request for a hearing.

The Cmmission need hold any required hearing only after it issues an amendment, unless it determines that a significant hazards consid-eration is involved.5_/

Accordingly, the Camission has fashioned its license amendment rule such that any requests to delay effectiveness of a requested amend-ment are to be directed to the Camission (i.e., the Staff as its delegate) during the 30-day cmment period. %e Statments of Consid-eration underlying the rule make this clear. As the Cmmission ex-plained in rulemaking, "new 550.91 would permit the Cmmission to make an amendment imediately effective in advance of the holding and cm-pletion of any required hearing where it has determined that no signifi-cuthazardsconsiderationisinvolved."O Thus, the rulemaking history amplifies the rule's explicit state-ment that it is the Cmmission, rather than any subsequently appointed board, which decides whether the requested amendment should be made

-5/ 10 C.F.R. 550.91(a) (4) . The Cm mission's new procedures were authorized by Congress in Section 12 of Pub. L.97-415, 96 Stat.

2073 (1983), which amended Section 189a of the Atmic Energy Act, 42 U.S.C. 52239 (a) .

6/ 48 Fed. Reg. 14873,14876 (April 6,1983) (enphasis added) .

4==<14ately effective. That decision is to be made on the basis of public cmments, the licensee's analysis and the Staff's safety eval-

-uation. The Camission enphasized this critical aspect of procedure in adopting the rule:

If it receives a hearing request during the cmment period and the Cmmission has decided that ~ no significant hazards consideration is involved, it would prepare a " final determina-tion" on that issue, make the requisite safety and public health findings, and proceed to issue the amendment. The hearing request would be treated the same way as in previous Cmmission practice, that is, by providing any requisite hearing after the an _r&=nt has been issued. As explained before, the legislation [ Pub. L.97-414 (1982)] permits the Cm mission to make an anmuumit inmediately effective, notwithstanding the pendency before it of a request for a hearing frce any person (even one that meets the provisions for intervention in 52.714), in advance of the holding and completion of any required hearing, where it has determined that no significant hazards consideration is in-volved. The Camission wishes to state in this regard that any question about its staff's determinations on the issue of significant versus no significant hazards consideration that may be raised in any hearing on the amendment will not stay the effective date of the amend-nent.7)

Therefore, whatever authority licensing boards may exercise pursu-ant to 10 C.F.R. S2.788 in other proceedings, the Cmmission has de-termined that the decision of the Staff in license amendment actions as to in=v14 ate effectiveness shall not be subject to challenge in proceed-ings initiated by a petitioner's request for a hearing.8_/

7/ Id. (enphasis addcd) .

8] If a licensing board should determine sua sconte or on the basis of (Footnote Continued)

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II. Mr. Anthony Has Waived His Plght to Carment on the Imediate Effectiveness of the Amendment.

Once it is clear that the procedures defined under 10 C.F.R. 550.91 provide the exclusive means for an interested person to seek a delay in the "inmediate effectiveness" of a license amendment, it follows that arry such request by Mr. Anthony in this instarm should have been made to the ccanission within the 30-day ccament period afforded the public prior to issuance of the amendment. Obviously, the Ccmnission has discretion to change the "inmediate effectiveness" of a license amend- >

ment if there were sane identifiable threat to the public health or safety.E Absent a capelling demonstration of potential harm to the public, hmaver, the Ca mission should not entertain requests for deferred effectiveness once the public cmment period provided by regulation has expired. E In short, Mr. Anthony has waived his right to seek a stay of the inmediate effectiveness of the license EminuAr.nt issued for Limerick within the prescribed 30-day cmment period. The Cmmission should not expand the privilege afforded Mr. Anthony and other members of the public under its regulations by considering late requests to defer the amendment's effectiveness.

(Footnote Continued) a petitioner's proof that the amendment poses a threat to the public health and safety, it would, of course, prmptly notify the Ccanission either informally or by way of existing certification or referral procedures.

-9/ Cf. 10 C.F.R. 92.202 (f) ; Nuclear Engineering Ccmpany, Inc.

T5heffield, Illinois, Iow-Ievel Badioactive Waste Disposal Site),

i CLI-79-6, 9 NPC 673, 677-78 (1979) .

_1_0f 0 By analogy, the Ccmaission considers cmments fran the parties (Footnote Continued)

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l II. Mr. Anthony Has Not Satisfied Applicable l Stay Criteria.

Should the Ccmnission review the request on the merits, Mr. Anthony has not satisfied the traditional criteria for obtaining a stay.

Prelirtinarily, Mr. Anthony has net even addressed applicable stay criteria in any meaningful way.11/ As the Appeal Board held in the operating license proceeding for Limerick, a party's request for a stay should be sumnarily denied where the movant has not even addressed the staycriteria.E Certainly, Mr. Anthony's perfunctory statements in his most recent subnittal, dated February 15, 1986, do not address the stay criteria in any meaningful way. He claims that he is likely to prevail on the merits because the 18-month surveillance testing requirement for excess flow check valves was written into the Technical Specifications and any amendment of that schedule necessarily " gambles" with cafety. This is (Footnote Continued) prior to determining whether the decision of a licensing board authorizing issuance of an operating license should be made imnediately effective. 10 C.F.R. S2.764 (f) (2) (ii) .

--11/ For the reasons discussed above, a request to stay the innediate effectiveness of a license amendment is not covered by the provisions of 10 C.F.R. 52.788 governing requests to stay actions by presiding officers and the Appeal Board. It is irrelevant, however, whether the Ccumission applies the criteria under 10 C.F.R. 52.788(e) by analogy or the traditional criteria used by the federal courts, for example, in Virginia Petroleum Jobbers Association v. Federal Power Ccumission, 259 F.2d 921, 925 (D.C.

Cir. 1958). The two sets of criteria are basically the same.

Public Service Ccmpany of Indiana, Inc. (Marble -Hill Nuclear Ge.nerating Station, Units 1 and 2), AIAB-437, 6 NBC 630, 631-32 (1977).

M/ Philadelphia Electric Ccmpany (Limerick Generating Station, Units 1 and 2) , AIAB Order (August 1,1985) .

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an obvious exanple of circular logic. On that basis, no license amend-ment could ever be granted by the NRC.

Mr. Anthony's claim of irreparable injury, which he cites as "a possible breakdown" of see unidentified wwent or system "because of the neglect of these tests," is wholly conclusionary and without factual basis.EI As to the harm to Licensee in granting a stay, Mr. Anthony erroneously asserts that Licensee was unable to creplete the surveil-lance testing as scheduled because of neglect. '1his ignores the facts stated in the application for the amerdient and as found by the NRC Staff in its written safety evaluation.14/ Mr. Anthony's claims as to the "public interest" merely recite his unsupported allegations.

M/ Anthony Request for a Hearing and Petition for Ieave to Intervene and Petition for Stay of Operation at 3 (February 15, 1986).

14,/ In the application, Licensee explained the situation as follows:

The long time associated with obtaining the full power license led to the need for this extension. A normal schedule for low power testing, startup testing and 100-hour full power warranty run would not have resulted in a requirement to extend the testing interval. All low power (less than 5% thermal power) testing was empleted prior to late April, 1985.

Circumstances beyond Licensee's control delayed the issuance of the full power license until August, 1985. During this period of time, the unit was maintained in a 48-hour standby condition to dernonstrate its availability for operation. This action precluded testing the excess flow check valves.

Application for Amendment of Facility Operating License NPF-39 at 2 (Decenber 18, 1985). 'Ihe Staff agreed with this analysis, noting:

"Since the Limerick Unit 1 plant has been through an extended startup program schedule, which included relatively little startup testing program activity frm about April to early August 1985, the (Footnote Continued) 3 E

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Thus, Mr. Anthony's stay request and petition for intervention incorporated by reference do not demonstrate entitlement to a stay under the four stay criteria. The Appeal Board's reasons for denial of a stay requested by Mr. Anthony in the operating license proceeding are equally applicable here. It stated:

Anthony / FOE have therefore failed to make the required strong showing that they are likely to prevail on the merits of their appeal. . . . It is not enough sinply to state confidence or an expectation of success before this or any other forum. . . . Intervenors' arguments on the other three stay factors are similarly gener-alized and unconvincing. Especially insofar as irreparable harm - often the factor accorded the greatest weight -

is concern, a party nust reasonably denonstrate, not merely allege, such h:. .m.H/

Similarly, the Ccanission denied Mr. Anthony's request for a stay of the low-power license for Limerick, holding:

The request falls far short of the criteria set forth within 10 CFR S2.788(e) for granting a stay. FOE's bases amount to no more than conclusory assertions which do not equate to a strong showing that it is likely to prevail on the merits, do not establish that it will suffer irreparable harm if no stay is granted, and do not elucidate where the public interest lies.M/

(Footnote Continued) scheduled surveillance tests fall in a period of what would otherwise be a continuation of first fuel cycle power operations."

Safety Evaluation by the Office of Nuclear Peactor Pegulation, Support Amendment No.1 to Facility Operating License No. NPF-39 at 1 (February 6,1986) .

15/ Limerick, supra, ALAB-814, 22 NFC 191,196 (1985) .

16/ Limerick, supra, Ccanission Order (Decerober 20, 1984) (slip op. at

2) , aff'q, AIAB-789, 20 NFC 1443 (1984) .

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l4 s Mr. Anthony's showing in the instant case is extranely weak. He has demonstrated no defect in the NBC's determination that the requested wierdient involves "no significant hazards consideration," as defined in the regulations and analyzed in the Staff's safety evaluation and the Licensee's application for the amendment. For the same reason, Mr.

Anthony has dernonstrated no threat of harm to him personally, nuch less any irreparable threat of harm. He has totally ignored the fact that any interim shutdown of Limerick to perform the tests which are the subject of the license amendment would necessarily inflict substantial econanic harm upon Licensee and its custmers and would therefore be contrary to the public interest.

Conclusion For the reasons discussed above, Mr. Anthony's request for a stay should be denied.

Respectfully subnitted, CONNER & WETTERHAHN, P.C.

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Tro' . nner, Jr.

Robert . Rader Counsel for the Licensee February 25, 1986 i