ML20198T152

Answer in Opposition to Rl Anthony/Friends of the Earth in Delaware Valley 860523 Petition for Review of ALAB-836 & Stay of Util Operation.W/Certificate of Svc

ML20198T152
Person / Time
Site:	Limerick
Issue date:	06/09/1986
From:	Hodgdon A NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC COMMISSION (OCM)
References
CON-#286-506 ALAB-836, OL, NUDOCS 8606110346
Download: ML20198T152 (14)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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. PIIILADELPIIIA ELECTRIC COMPANY ) L

) 50-353' (Limerick Generating Station, )

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l NRC STAFF ANSWER IN OPPOSITION TO ANTIIONY/ FOE PETITION FOR REVIEW OF ALAB-836 AND FOR A STAY Ann P. Hodgdon Counsel for NRC Staff f .

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NUCLEAR REGULATORY COMMISSION .f.;

BEFORE THE COMMISSION '

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PillLADELPillA ELECTRIC COMPANY ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

L NRC STAFF ANSWER IN OPPOSITION TO ANTIIONY/ FOE PETITION FOR REVIEW OF ALAB-836 AND FOR A STAY Ann P. Hodgdon Counsel for NRC Staff June 9,1986

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UNITED STATES OF AMERICA .- o$0  :,

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In the Matter of )

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PHILADELPIIIA ELECTRIC COMPANY ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

NIic STAFF ANSWER IN OPPOSITION TO ANTIIONY/ FOE PETITION FOR REVIEW OF ALAB-83G AND FOR A STAY I. INTRODUCTION On May 23, 1986, Robert L. Anthony / Friends of the Earth in the Delauure Valley (Anthony / FOE) filed a petition pursuant to 10 C . F . R .

S 2.78G requesting that the Commission take review of ALAB-836 II and stay operation of the Limerick facility pending a decision on remand of the issues that Anthony / FOE allege the Appeal Board decided erroneous-ly. In ALAB-836, the Appeal Board decided all appeals from the Licens-ing Board's Third Partial Initial Decision S in favor of the Licensee except for the issue of the availability of an adequate number of bus drivers to evacuate students in two school districts. In addition, the Appeal Board imp.osed a license condition requiring the verification of the establishment of additional traffic control measures in the area of Route 100 and the Downingtown interchange of the Pennsylvania Turn-

-1/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC (May 7,1986).

il Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-85-14, 21 NRC 1219 (1985).

pike. Anthony / FOE assert that the Appeal Board erred in affirming LDP-85-14 to the extent that it found that the Valley Forge Park / King of Prussia area and the Marsh Creek State Park /Exton area need not be in-cluded in the plume exposure pathway emergency planning zone (EPZ).

For the reasons discussed below, the NRC staff opposes Anthony / FOE's petition and urges that it be denied.

11. BACKGROUND Anthony / FOE's petition for review relates to their Contention 1, which was combined for litigation with Limerick Ecology Action's (LEA)

Contention 24. The contention reads as follows:

There is no assurance that plans for evacuation of the ten milo radius will not be impeded by traffic congestion in the vicinity of Marsh Creek State Park, Exton area (involving Route 100) and Valley Forge Park, King of Prussia area.

These areas should either be included in the Emergency Plan-ning Zone or adequate plans for traffic control and direction should be made to avoid adverse effects on EPZ evacuation.

In ALAB-836, the Appeal Board noted that the Licensing Board in LBP-85-14 had provided for additional traffic controls in the Valley Forge / King of Prussia area in the form of a license condition requiring the Director of Nuclear Reactor Regulation (NRR) to verify plans to im-plement such traffic controls before authorizing operation of the Limerick plant above 5 percent power. ALAB-836 at 19, 17. The Appeal Board further noted that the Staff had subsequently informed the Licensing Board that 17 additional control points had been designated. Id. Thus, the Appeal Board concluded that the contention had been satisfied as it related to the Valley Forge Park / King of Prussia area. ALAB-836 at 17.

Ilowever, the Appeal Board agreed with LEA and Anthony / FOE that the

testimony of the Staff's witness , Dr. Urbanik, established a need for more traffic controls in the Route 100 corridor near Marsh Creek State Park and Exton. The Appeal Board, therefore, directed the Licensee to establish traffic control measures in the area of Route 100 and the Downingtown interchange of the Pennsylvania Turnpike in its emergency plans with the Director of Nuclear Reactor Regulation to verify the com-pletion of the action. ALAD-836 at 24-26. Because the necessity for including park areas in the EPZ was offered as an alternative to e.ddition-al traffic controls, the Appeal Board held that the contention had been satisfied by the license condition and that, therefore, LEA and Anthony / FOE's arguments regarding the inclusion of the parks within the EPZ were moot. ALAU-836 at 27.

The Appeal Board did not limit its consideration of the Licensing Board's treatment of LEA Contention 24/ FOE Contention 1 to the traffic control alternative; rather, it addressed at length the issue of the scope of the EPZ, noting that the Commission's regulations (10 CFR S 50.47(c)(2)) provide that, generally, the plume exposure pathway EPZ for nuclear power plants shall consist of an area about 10 miles in radius and that the Limerick EPZ had been defined by state and local planning officials in accordance with S 50.47(c)(2). ALAB-836 at 26-27. The Ap-peal Board noted that LEA / FOE had not shown that the experts erred in defining the EPZ or what would have been accomplished by inclusion of the parks. ALAB-836 at 27-28.

III. DISCUSSION ,

Although the Commission has the discretion to review a decision of its subordinate boards, a petition for Commission review "will not j

ordinarily be granted" unless important environmental, safety, procedur-al, common defense, antitrust or public policy issues are involved.

10 C.F.R. S 2.786(b)(4). No such issues at a raised in Anthony / FOE's petition .

A. Anthony / FOE's petition Anthony / FOE's petition cites four areas in which they assert the Appeal Board erred: (1) in failing to find that the King of Prussia / Valley Forge Park and Marsh Creek Park /Exton areas should be included in the EPZ; (2) in failing to reverse the Licensing Board on the issue of the evacuation time estimate (ETE), which Anthony / FOE assert should include the effect of through traffic; (3) in sustaining the Licens-ing Board's consolidation of Anthony / FOE's presentation with that of LEA and imposition of time limits on cross-examination; and (4) in delegating the issue of traffic control points to the Staff and thus denying interve-nors the opportunity to challenge the Staff's resolution of the matter.

Tbc Staff does not believe that any of Anthony / FOE's allegations of Ap-peal Board error merit Commission review.

1. The Appeal Board correctly decided that imposition of a license condition requiring traffic control points satisfied the contention and mooted the alternative concern.

Contention LEA 24/ FOE 1 is stated in the alternative, i.e., either the EPZ should be expanded to include certain park areas or adequate planning for additional traffic control and direction should be undertaken.

llaving prevailed on the necessity for further traffic control and direc-tion , Anthony / FOE now seek a Commission ruling that the Appeal Board erred in not reversing the Licensing Board's conclusion that the park areas in contention need not be included in the EPZ.

The position that Anthony / FOE now argue to the Commission is de-void of both merit and logic. The Appeal Board's ruling that Anthony /

FO E's arguments regarding inclusion of park areas in the EPZ are moot is clearly correct. Moreover, the Appeal Board did not limit its consideration of the contention to the alternative that was satisfied.

Rather, the Appeal Board discussed the Commission's regulations in 10 CFli 5 50.47(c)(2) and concluded that LEA / FOE had not shown that the experts had erred in defining the EPZ or what would have been ac-complished by inclusion of the park areas in contention. ALAB-836 at

'i-2 8. See discussion supra at 2-4. Accordingly, the Appeal Board's ruling in this regard was correct and no Commission review of this issue is required.

j 2. The Appeal Board correctly denied Anthony / FOE's attempt to l

raise for the first time on appeal the matter of through traffic.

Anthony / FOE state that because the Staff's witness, Dr. Urbanik, mentioned through traffic in his testimony, the Appeal Board was in error in refusing to allow Anthony / FOE to raise the matter on appeal because they had not raised it before the Licensing Board. Anthony / FOE appar-ently misunderstand the Appeal Board's statement that their argument concerning the need for control of through traffic in areas other than those specified in the contention and litigated before the Licensing Board "cannot be properly raised for the first time on appeal." ALAB-836 at 24 n.28. Dr. Urbanik's mere mention in his testimony of through traffic did not in itself raise the matter as an issue before the Licensing Board.

The Appeal Board's ruling was that an appeal,on this matter did not lie because Anthony / FOE had not raised it as an issue before the Licensing

D onrd . Thus, Anthony / FOE's argument to the Commission misses the mark and fails to establish that the Appeal Board erred on this issue.

3. The Appeal Board correctly sustained the Licensing Board's consolidation of LEA / FOE presentations and limitation of cross-examination Anthony / FOE allege that the Licensing Board abused the judicial process by consolidsting Anthony / FOE's presentation with that of LEA and that their complaints about the matter were not, as characterized by the Appeal Board, "g eneralized . " However, Anthony / FOE's argument to the Commission adds nothing to their complaints to the Appeal Board, in re-sponse to which the Appeal Board noted that consolidation of parties is explicitly authorized by 10 C .F . R . 2. 715a and that Anthony / FOE had made no showing that they were prejudiced by the consolidation of their presentation with that of LEA. See, ALAB-836 at 33. Anthony / FOE have failed to explain why the Commission should review the Appeal Board's treatment of this issue.

In addressing Anthony / FOE's allegation that it was error to sustain the Licensing Board's time limitation on cross-examination , the Appeal Board appropriately cited to 10 C.F.R. S 2.718, regarding a licensing board's obligation to " regulate the course of the hearing"; 10 C . F . R .

S li.743(c), regarding a licensing board's obligation to admit only evidence that is relevant , material, reliable and not unduly repetitious ; and 10 C.F.R. S 2.757(c) and (d), regarding a licensing board's responsibili-ty to prevent argumentative, repetitious or cumulative cross-examination and to impose such time limitations on arguments as it determines appro-priate. ALAB-836 at 33-34. The Appeal Board. opined that the imposition of time restrictions on witness examination is clearly among the necessary tools an NRC adjudicatory board possesses to regulate the course of a

hearing provided, of course, that such imposition does not result in prej-udice to any party. Id. This is clearly a reasonable interpretation of

. relevant Commission regulations regarding the conduct of hearings and Anthony / FOE have made no showing that the Licensing Board abused its discretion in exercising this authority.

The Appeal Board further noted that Anthony / FOE had failed to es-tablish actual prejudice by, for example, describing the outcome-determi-native testimony that was allegedly precluded by time restrictions.

ALAB-836 at 35. Anthony / FOE now at gue to the Commission that Dr. Urbanik's testimony on the relationship of through traffic on the turnpike to through traffic on the other main evacuation routes was cut off by the Licensing Board's imposition of time limits. Whatever may be the merit of Anthony / FOE's claim concerning the testimony they hoped to elicit from Dr. Urbanik - and the Staff can perceive none - it was not argued to the Appeal Board and, tnerefore, may not now be argued to the Commission. 10 C.F.R. S 2.786(4)(111),

4. The Appeal Board acted correctly in sustaining the Licensing Board's imposition of a license condition that left to the Staff the resolution of the matter of additional traffic points.

Anthony / FOE challenge the Appeal Board's sustaining of the Licens-ing Board's imposition of a license condition leaving to the Staff the reso-lution of the matter of additional traffic control points. However, the

. Commission has long recognized the appropriateness of such delegation if

" employed sparingly and only in clear cases". Consolidated Edison Com-pany of New York (Indian Point Station , Unit No. 2), CLI-74-23, 7 AEC 947, 952 (1974). Here, the Appeal Board Torrectly applied the Com-mission's guidance in upholding the Licensing Board's delegation to the Staff. Specifically, the Appeal Board correctly concluded that:

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1 In Waterford, we explained that findings in the emergen-cy planning area are essentially predictive in nature:

an emergency plan need not be final in every detail, just sufficiently developed to permit the " reasonable assur-ance" finding required by the Commission's regulations, 10 C.F.R. S 50.47(a)(1). Consequently, in some in-stances post-hearing verification by the staff of emer-

. gency planning measures is not an improper delegation or decisionmaking authority to the staff.

In Waterford, for instance, we concluded that post-hearing verification by the staff of the installation and testing of the siren warning system, completion of letters of agreement for vehicles and drivers, and certain de-tails concerning the communication system for the Emer-gency Support Organization was proper. Each of these items is essentially a detail relating to the implementation of the emergency plan, rather than a basic ingredient of the plan itself. . . . The same can be said here about the plans for greater traffic control in the Valley Forge /l ing of Prussia area. Traffic control is achieved by the stationing of Pennsylvania State Police or local law enforcement personnel at designated locations (usual-ly intersections) to restrict access to certain roads or to direct traffic more safely and expeditiously through an area. ETE at 7-1, 7-7. Thus, the Licensing Board did not err in authorizing the staff to verify the designation of additional traffic control points. ALAB-836 at 21-22 (footnotes omitted).

Anthony / FOE have not presented a basis for Commission review of this matter.

B. Anthony / FOE's stay request Anthony / FOE request that the Commission stay operation of Limerick pending the outcome of the remanded proceedings that Anthony / FOE ar-gue are necessary to assure a new and workable emergency plan.

Al-though Anthony / FOE have addressed the Commission'c criteria for stays

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found in 10 C.F.R. S 2.788(e) 3_/ , their showing does not support the grant of a stay.

1. Likelihood of prevailing on the merits. Anthony / FOE state that they have pointed to flaws in the Appeal Board and Licensing Board deci-sions that make the plans unworkable. However, for the reasons discussed above, Anthony / FOE have failed to identify any issues on which they are likely to prevail.

2. Whether the party will be irreparably injured absent the grant of a stay. Anthony / FOE state that they will be forced to move if Limer-ick operates, thus suffering irreparable injury. The Appeal Board in ALAB-789 b rejected this very argument, stating that an individual's decision to move away from a vicinity of a nuclear plant is necessarily a personal one. 20 NRC at 1447. Anthony / FOE's decisions about their future residence does not constitute the irreparable harm contemplated by the Commission's stay regulations.

3. Whether the grant of stay will harm other parties.

Anthony / FOE argue that the Licensee's shareholders should be liable for any loss of investment. They ignore the fact that Philadelphia Electric holds a Commission license entitling it 'to undertake the activities author-ized by the license unless the public health, interest or safety requires that these activities be suspended. Consumers Power Company (Midland 3/ The four factors to be considered under S 2.788(e) are: 1) whether the movant has made a strong showing that it is likely to prevail on the merits; 2) whether the party will be irreparably injured unless a stay is granted ; 3) whether the granting of a stay will harm the other parties; and 4) where the public interest lies.

~4/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-789, 20 NRC 1443 (1984).

Plant, 1 and 2), CLI-73-38, 6 AEC 1082,1083 (1973). These rights and privileges cannot be dismissed merely by characterizing the injury that Licensee's shareholders would suffer if the stay were granted as merely

" economic . " Anthony / FOE have failed to demonstrate that other parties to this proceeding (specifically, Licensee) will not be harmed by the grant of a stay.

4. %here the public interest lies. Anthony / FOE argue that eco-nomic harm to ratepayers will occur if Limerick is not kept out of the rate base. Anthony / FOE have argued this point previously and the Appeal Doard has rejected it. The Appeal Board in ALAB-789 noted:

The Commission has just recently reaffirmed its long-held view that a nuclear plant's possible effect on rates, the utility's solvency, and the like is best raised before state economic regulatory agencies. Public Service Co.

of New Hampshire (Seabrook Station, Unit 2), CLI-84-6, 19 NRC 975 (1984). . . 20 NRC at 1447.

Anthony / FOE have not established that the public interest supports their efforts to disturb the decisions below.

IV. CONCLUSION As discussed above, Anthony / FOE have failed to show that ALAB-836 raises any important question of law or Commission policy. Accordingly, the Commission should deny Anthony / FOE's petition for review and re-quest for a stay of operation.

Respectfully subnitted, j W .

Ann P. Ilodgdon Counsel for NRC Staff Dated at Bethesda, Maryland this 9th day of June, 1986

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

PillLADELPillA ELECTRIC COMPANY ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER IN OPPOSITION TO ANTIIONY/ FOE PETITION FOR REVIEW OF ALAB-836 AND FOR A STAY" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an aster-isk through deposit in the Nuclear Regulatory Commission's internal mail system, this 9th day of June,1986:

Samuel J. Chilk William C. Parler Office of the Secretary General Counsel U.S. Nuclear Regulatory Commission Office of the General Counsel Washington , D.C. 20555* U.S. Nuclear Regulatory Commission Washington, D.C. 20555*

Helen F. Hoyt, Chairperson (2) Mr. Edward G. Bauer, Jr.

Administrative Judge Vice President & General Counsel Atomic Safety and Licensing Board Panel Philadelphia Electric Company U.S. Nuclear Regulatory Commission 2301 Market Street Washington , D.C. 20555* Philadelphia, PA 19101 Dr. Richard F. Cole Troy B. Conner, Jr., Esq.

Administrative Judge Mark J. Wetterhahn, Esq.

Atomic Safety and Licensing Board Panel Conner and Wetterhahn U.S. Nuclear Regulatory Commission 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20555* Washington, D.C. 20006 Dr. Jerry liarbour Ms. Phyllis Zitzer, President Administrative Judge Ms. Maureen Mulligan Atomic Safety and Licensing Board Panel Limerick Ecology Action U.S. Nuclear Regulatory Commission 762 Queen Street Washington, D.C. 20555* Pottstown, PA 19464

)

Mr. Frank R. Romano Kathryn S. Lewis, Esq.

Air and Water Pollution Patrol 1500 Municipal Services Bldg.

61 Forest Avenue 15th and JFK Blvd.

Ambler, PA 19002 Philadelphia, PA 19107 Thomas Gerusky, Director Barry M. Hartman Bureau of Radiation Protection Governor's Energy Council Dept. of Environmental Resources P.O. Box 8010 5th Floor, Fulton Bank Building 300 N. 2nd Street Third and Locust Streets Harrisburg, PA 17105 Harrisburg, PA 17120 Spence W. Perry, Esq.

Director Associate General Counsel Pennsylvania Emergency Management Federal Emergency Management Agency Agency Room 840 Basement, Transportation & Safety 500 C Street, S.W.

Building Washington , D.C. 20472 fiarrisburg, PA 17120 Robert L. Anthony Gene Kelly Friends of the Earth of the Senior Resident inspector Delaware Valley U.S. Nuclear Regulatory Commission 103 Vernon Lane, Box 186 P.O. Box 47 Moylan, PA 19065 Sanatoga, PA 19464 Atomic Safety and Licensing Timothy R. S. Campbell, Director Board Panel Department of Emergency Services U.S. Nuclear Regulatory Commission 14 East Biddle Street Washington, D.C. 20555* West Chester, PA 19380 Atomic Safety and Licensing David Wersan Appeal Board Panel (8)

Consumer Advocate U.S. Nuclear Regulatory Commission Office of Attorney General Washington , D.C. 20555*

1425 Strawberry Square llarrisburg, PA 171:'O Docketing and Service Section Office of the Secretary Jay Gutierrez U.S. Nuclear Regulatory Commission Regional Counsel Washington, D.C. 20555*

USNRC, Region 1 631 Park Avenue Angus R. Love, Esq.

King of Prussia, PA 19406 Montgomery County Legal Aid 107 East Main Street Norristown, PA 19401 Iw O e c)V Ann P. Hodgdon Counsel for NRC Staf i