ML20154R526

Answer Opposing Fr Romano 860319 Late Filed Suppl in Response to Notice of Opportunity to Request Hearing on Proposed Amend 1 to License NPF-39.Romano Failed to Plead Admissible Contention.Certificate of Svc Encl

ML20154R526
Person / Time
Site:	Limerick
Issue date:	03/26/1986
From:	Wetterhahn M CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20154R519	List: ML20154R515 ML20154R526
References
OLA-OLA-2, NUDOCS 8603310044
Download: ML20154R526 (12)

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Y 00CMETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'86 NAR 28 All N1 Before the Atomic Safety and Licensing Board GFFitE Cr -

In the Matter of ) 00Cr1T m m , , , ,

) Docket No. 50-352-OLA DEE Philadelphia Electric Company ) (Check Valve)

) Docket No. 50-352-OLA-2 (Limerick Generating Station, ) (Containment Isolation) i Unit 1) ) March 26, 1986 LICENSEE'S ANSWER TO MARCH 19, 1986 SUPPLEMENT FILED BY INTERVENOR FRANK R. ROMANO Preliminary Statement This matter concerns the late-filed petition of Frank R. Romano 1! in response to the notice of opportunity to request a hearing on proposed Amendment No. 1 of the operating license for the Limerick Generating Station, Unit 1 (" Limerick") . - The NRC Staff issued the requested amend-ment on February 6, 1986.

1/ Mr. Romano purported to file on behalf of the Air and Water Pollution Patrol ("AWPP"), but did not identify AWPP's interest in the proceeding or state that he had been authorized by the organization to represent it and i

its members. Under these circumstances this Board has ruled that it would "[ view] the petitioning as an individual effort." Philadelphia Electric Company (Limerick Generating Station, Unit 1) (Check Valve),

" Memorandum and Order Ruling on Robert L. Anthony's Petition for Leave to Intervene" (March 13, 1986) (slip op. at 3 n.1).

_2,/ 50 Fed. Reg. 52874 (December 26, 1985).

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Although the notice in the Federal Register stated that a timely request for intervention must be filed by January 26, 1986, Mr. Romano did not file his petition until Febru-ary 24, 1986. Both the Licensee and NRC Staff opposed his late admission for failure to satisfy or even discuss the lateness criteria and for lack of standing.S On March 13, 1986, the presiding Atomic Safety and Licensing Board (" Licensing Board" or " Board") issued a Memorandum and Order conditionally admitting another peti-tioner, Robert L. Anthony, as an intervenor in the proceed-ing regarding Amendment No. l.A! The Board subsequently ordered the consolidation of the two proceedings on Amend-ment No. 1 and Amendment No. 2 and scheduled a prehearing conference for March 27, 1986.EI The Board directed Mr. Romano "to file [his] con-tentions and any admitted contention and supplement to [his]

petition (check-valve matter) by March 20, 1986 by express 3/ See " Licensee's Answer in Opposition to Late-Filed l Petition for Leave to Intervene and Request for Hearing by Frank R. Romano" (March 11, 1986); " Response of NRC Staff in Opposition to Petition and Request for a Hearing by the Air and Water Pollution Patrol Regarding Licensee's Amendment Request No. 1" (March 17, 1986).

4_/ Limerick (Check Valve), supra, " Memorandum and Order Ruling on Robert L. Anthony's Petition for Leave to Intervene" (March 13, 1986).

5/ Limerick (Check Valve) (Containment Isolation), supra,

" Memorandum and Order Consolidating Proceedings and Setting Schedule for Identification of Issues" (March 14, 1986).

f mail."b! The Board stated that the NRC Staff and the Licensee would be afforded an opportunity at the prehearing conference to address Mr. Romano's contentions and any amended petition or supplement to his petition.7/ For the reasons discussed below, Licensee opposes the contentions proposed by Mr. Romano on the grounds that they lack the requisite specificity and bases, fail to state any litigable issue and exceed the scope of this proceeding.

Argument In answer to the contentions proposed by Mr. Anthony in the proceeding on Amendment No. 1, Licensee r.h! J initial observations of general applicability regarding the admis-sibility of contentions. Specifically, Licensee noted that I

i the scope of the proceeding is narrowly limited to questions relating to the validity of Amendment No. I and could not be a basis for litigating safety and environmental. issues which were or could have been litigated in the operating license proceeding for Limerick; that the petitioner had had ample advance notice to prepare contentions, especially consider-ing the brevity of the record; and that the proposed con-tentions were so completely lacking in technical specificity 6/ Id. at 5.

7/ Id. at 6. We assume that the Board did not intend to preclude Licensee or the Staff from filing a written response on an expedited basis if either chose to do so.

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I' that it was impossible to understand their substance or determine the regulation or other requirement with which Licensee allegedly had failed to comply.

As discussed below, the same points apply with equal force to Mr. Romano's request to participate in the proceed-ing and his proposed contentions. Licensee therefore respectively refers the Board to its earlier answer as if fully incorporated herein.U With these basic principles as background, Licensee now addresses what Mr. Romano has submitted as proposed " contentions."

The first point which is obvious about Mr. Romano's pleading is that it does not, in fact, contain any proposed contentions. Instead, it is a rambling dissertation on welds, concrete placement and a variety of other subjects, which never once even mentions excess flow check valves or the extension until May 26, 1986 granted by the NRC for the testing of certain excess flow check valves on reactor instrumentation lines. Inasmuch as Mr. Romano has failed to propose g contention, his petition must be denied outright.

8/ " Licensee's Answer to Contentions Proposed by ,

Intervenor Robert L. Anthony" at 2-10 (March 17, 1986). '

Licensee also concurs in the objections raised by the NRC Staff in opposing Mr. Anthony's contentions, which it filed on March 17, 1986, and which are likewise applicable here.

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Y As stated in the incorporated precedents, this Board is not obliged to sort through this patently irrelevant material in order to formulate a contention on Mr. Romano's behalf, particularly given his past experience in intervention and his presumed familiarity with 10 C.F.R.

52.714(b). To do so would be an abuse of discretion.

In any event, nothing asserted by Mr. Romano provides the slightest basis for litigating the validity of Amendment No. I to the Limerick operating license. The thrust of Mr.

Romano's discussion is to question the adequacy of certain welds as discussed in a 1976 inspection report. These matters were fully litigated and found to be without merit at the operating license stage.E! Clearly, Mr. Romano is i

attempting to exceed the scope of this proceeding and relitigate an issue on which he nas already lost before the Licensing Board, the Appeal Boa d, and the Commissioners.

Similarly, Mr. Romano's desire to litigate alleged safety implications of IE Report 50-352/86-02 wholly fails to establish any basis for challenging the extension of time to test certain excess flow check valves. Moreover, this 9/ Limerick, supra, LBP-84-31, 20 NRC 446, 509-13 (1984),

vacated in part on other grounds, ALAB-819, 22 NRC 681, 722-30 (1985). Mr. Romano did not appeal ALAB-819, and i the Commission determined that it would not review the  !

decision on the basis of requests by other parties. I Limerick, supra, CLI-86-05, 23 NRC (March 20, 1986). Mr. Romano's contention included the specific inspection report he now cites. See, e.g., Tr. 11966 (May 31, 1984) (copy attached) .

d was also part of Mr. Romano's earlier case. The Appeal Board affirmed the Licensing Board's exclusion of Mr.

Romano's " poor concrete placement"E issue as follows:

The only other articulated issue that AWPP repeatedly tried to raise (includ-ing here on appeal) concerns certain defects in concrete placement at the site. But as the Licensing Board noted, AWPP's representative had raised this identical issue several years earlier in

, a petition to the NRC's Director of Nuclear Reactor Regulation, The matter was thoroughly investigated, and the staff was ultimately satisfied with -

PECo's resolution of the problem.

DD-79-16, 10 NRC 609, 610-11 (1979).

When pressed by the Board, AWPP was unable to provide any new information concerning possible concrete defects; it simply expressed its belief that the matter had not been fully corrected.

See Tr. 4883-94, 4911-12. In these circumstances, the Board's admission of a contention limited in scope to welding matters was fully justified. See Tr.

4610-14, 4912-19.11/

Mr. Romano's attempt to raise this issue anew is likewise improper, beyond the scope of this proceeding and without any basis.

Finally, Mr. Romano cites the number of Licensee Event Reports (LER's) filed by Licensee for Limerick. Here again, Mr. Romano fails to specify'any particular concern raised by an LER which pertains to the amendment at issue. In any event, LER's are not in and of themselves indicative of any  !

1_0f Romano Supplement at 2 (March 19, 1986).

M/ Limerick, supra, ALAB-819, 22 NRC at 726.

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particular safety problem which would form the basis of a proper contention. When Mr. Romano, along with Mr. Anthony, petitioned for relief under 10 C.F.R. S2.206 on the basis of LER's which had been submitted to the NRC, the Director of 4 the Office of Nuclear Reactor Regulation found "that the number and types of LERs from Limerick do not justify the relief requested but rather are consistent with a new plant startup and of a conservative threshold by the Licensee for reporting." Like the other matters which Mr. Romano seeks to raise, this issue is totally lacking in basis or specificity, lies beyond the scope of the proceeding and is res judicata by virtue of an earlier decision.

I Conclusion For the reasons discussed above, the matters discussed by Mr. Romano do not even constitute a proposed contention, d

let alone provide requisite specificity and bases under 10 C.F.R. S2.714(b). Further, each of those matters exceeds the limited scope of this proceeding and attempts to raise issues barred by res j udi,cata . In addition to the other

-12/ Limerick, supra, DD-85-11, 22 NRC 149, 167 (1985). The Commission decided on September 12, 1985 that it would not review this decision, thereby making it final agency action.

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defects in his petition, inasmuch as Mr. Romano has failed to plead a single admissible contention, his petition should be dismissed.EI Respectfully submitted, CONNER & WETTERHAHN, P.C.

Troy B. Conner, Jr.

Mark J. Wetterhahn Robert M. Rader Counsel for Licensee March 26, 1986 l

13/ See 10 C.F.R. 52. 714 (b) ; Duquesne Light Company (Beaver 1 Valley Power Station, Unit 2) , LBP-84-6, 19 NRC 393,  !

395, 430 (1984).

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,'i t CI. T ., ..',Clit..tTORY COMN!5510N l

In :he esatter d PHILADELPHIA ELECTEIC CCMPANY Docket No. 5Q-35 2 (Li.merick Generating S tation, 50-353 Uni ts 1 s 2) i Location: Philadelphia,' Pa. Pages:

11,902-11,995 Date Thursday, May 31, 1984 T AiLOE ASSOCIATIS

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ge 9-3 that through an affidavit, they had to come up with a i

2 letter admittin'g that they did not inspect all the welds, 3

both accessible and inaccessible.

4 And on that basis, I see no reason why we should, j 5 in their effort to reconciliate the whole situation, that 6

we accept everything they state as credible and that there

7 are no material gaps in what they say.

8 I feel there are -- as it relates to the 760601 8

affair, there are extensive material gaps because 1

Mr. Corcoran admitted that this Mr. Ferretti did not have 11 his initials on this weld, on this weld which was 12 discovered. Now how many other welds -- and this is a very 13 important question that has to be answered -- how many other 14 welds did Mr. Ferretti check off as being final verification 15 of a proper weld that was never inspected?

16 For Mr. Corcoran to say that, "We know he has 17 inspected other welds, and he is a good inspector," that 18 in itself does not explain away why he did not -- he had 19 procedures. He knew he had to initial his welds. He 20 didn't do that. He stated that the welds were properly 21 performed, and then found to be very deficient. I think this 22 again is another example with those statements that we did 23 all this, and then when the time came up to prove it, they I 24

-nn la n ' e n rmra i* and had to admit they didn't. IIere 's a 25

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000KETED U%NRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION E6 NAR 28 An :41 In the Matter of ) 0FFICE .

) Docket No. 50-3 52-(9SMETINUN. ,y~/

Philadelphia Electric Company ) (Check Valve) BRANCH

) Docket No. 50-352-OLA-2 (Limerick Generating Station, ) (Containment Isolation)

Unit 1) ) March 19, 1986 CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Answer to Contention Supplements Proposed by Intervenor Robert L.

Anthony on Amendment No. 1 and Contentions Proposed on Amendment No. 2" and " Licensee's Answer to Contentions Proposed by Intervenor Frank R. Romano," dated March 26, 1986 in the captioned matter have been served upon the following by deposit in the United States mail this 26th day of March, 1986:

• Mr . Ivan W. Smith, Chairman Atcmic Safety and Atcmic Safety and Licensing Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Docketing and Service

• Dr . Richard F. Cole Section Atomic Safety and Licensing U.S. Nuclear Regulatory l Board Panel Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555

• Benjamin H. Vogler, Esq.

Counsel for NRC Staff

• Mr . Gustave A. Linenberger, Jr. Office of the Executive Atomic Safety and Licensing Legal Director Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

• Hand Delivery on March 26, 1986

~ 2-Atomic Safety and Licensing James Wiggins Board Panel Senior Resident Inspector U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 P.O. Box 47 Sanatoga, PA 19464 Philadelphia Electric Company ATTN: Edward G. Bauer, Jr. *

• Mr . Frank R. Romano Vice President & 61 Forest Avenue General Counsel Ambler, PA 19002 2301 Market Street Philadelphia, PA 19101

• Mr . Robert L. Anthony Friends of the Earth in the Delaware Valley 106 Vernon Lane, Box 186 Moylan, PA 19065 Jay M. Gutierrez, Esq.

U.S. Nuclear Regulatory Commission 631 Park Avenue King of Prussia, PA 19406

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0-tf MhfR J. Wetterhahn

• • Hand Delivery on March 27, 1986