ML20203L503
| ML20203L503 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 04/28/1986 |
| From: | Rutberg J, Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#286-958 OLA-OLA-2, NUDOCS 8605010282 | |
| Download: ML20203L503 (28) | |
Text
9 UNITED STATES OF AMERICA [9hfD NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APkAIl%()&RQ I l21 In the Matter of - ) Ohkb$6
) Docket No. 50-3f4',m PHILADELPHIA ELECTRIC COMPANY ) (Check Valves) dL A OL A ->
(Limerick Generating Station, ) Docket No. 50-352 Ot*=f-Unit 1) ) (Containment Isolation) . .
RESPONSE OF TIIE NRC STAFF IN OPPOSITION TO TIIE APPEAL OF ROBERT L. ANTHONY FROM THE DENIAL OF HIS PETITION TO INTERVENE, REQUEST FOR A STAY AND TERMINATION OF THIS CONSOLIDATED PROCEEDING Benjamin H. Vogler Counsel for NRC Staff Joseph Rutberg Assistant Chief Hearing Counsel April 28,1986 8605010282 860428 PDR ADOCK 05000352 Q PDR bb
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UNITED STATES OF AMERICA yh D NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL OASHy)p 9 .-
) hlr s In the Matt.er of - -
) Docket No. 50-352 OUdd;[/'"& ,
PHILADELPHIA ELECTRIC COMPANY ) (Check Valves)
)
(Linerick Generating Station, ) Docket No. 50-352 OLA-2 Unit 1) ) (Containment Isolation)
RESPONSE OF TIIE NRC STAFF IN OPPOSITION TO TIIE APPEAL OF ROBERT L. ANTHONY FROM THE DENIAL OF HIS PETITION TO INTERVENE, REQUEST FOR A STAY AND TERMINATION OF THIS CONSOLIDATED PROCEEDING Benjamin H. Vogler Counsel for NRC Staff
~
Joseph Rutberg Assistant Chief Hearing Counsel April 28,1986
TABLE OF CINIINIE W '
I. I N11GUCT I CE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. BACEGRCIED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. D I SCUS S I CN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. Standards for Intervention ................................ 6 B. Anthony's Petition to Intervene and Request for a Hearing in Operat ing License Amendnent No. 1 . . . . . . . . . . . . 8
- 1. Petition to Intervene .................................. 8 2 . Con t en t i ons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
- 3. No Signi ficant Fazards Considerat ion . . . . . . . . . . . . . . . . . . . 14 C. Anthony's Petition to Intervene and Request for a Hearing in Operat ing License Amendnent No. 2 . . . . . . . . . . . . . . . 16 I V . CWC71'S I m . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 m
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TABLE OF AUIKRITIES CASES Pag
- Associatic ta Processing Service Organizations, Inc. v.
- v. Canp , 35. IV 153 (1970)...................................... 7 Sierra Club 3 , 405 U.S. 727 (1972)............................. 7 Warth v. Seldin, 422 U.S. 490 (1975)................................... 7 AININISIRATIVE DECISIOiS Allied-General Nuclear Services, et al. (Barnwell Ebel Receiving and Storage St at ion) , AIAB-32 8, 3W4 20 (1976) . . . . . . . . . . . . . . . . . . . . . . . 8 Detroit Edison Conpany (Enrico Femi Atanic Power Plant , Unit 2),
AIAB-7 0 7 , 16 KRC 17 6 0 ( 19 8 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 0 In the Matter of Ten Applications for Iow-Enriched Uraniun Exports to EL'RATU ? f1m1ber Nat ions , CLI-77-24, 6 NRC 525 (197 7 ) . . . . . . . . . . . . . . . . . 7,8 Mississippi Power a Light Conpany (Grand Gulf Nuclear Station, Units 1 and 2 ) , AIAB-7 0 4 , 16 NRC 17 2 5 ( 19 8 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,2 0 Philadelphia Electric Conpany (Limerick Generating Station, Unit 1),
B.bnorandun and Order , AIAB-835, (Apri l 11, 1986) . . . . . . . . . . . . . . . . . . . . . . . 5 Philadelphia Electric Conpany (Limerick Generating Station, Unit 1)
Memorandun and Order Denying and Disnissing Petitions for Leave to 1,5,14 Intervene and Teminat ing Proceeding, IBP-86-9, (April 4, 1986) . . . . . . . . 15,19,20 Philadelphia Electric Cmpany (Limerick Generating Station, Unit 1)
Memorandun and Order, slip op., (March 13, 1986)....................... 4.5,9,10 Portland General Electric Conpany, et al. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976)... ................. 6,7 l
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South Carolina Electric and Gas Conpany (Virgit C. Sunner, Unit 1),
AIAB- 6 4 2 , 13 NRC 8 81 ( 19 81 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 0
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Wisconsin Electric Power Cmpany (Point Beach Nuclear Plant, Units I and 2 ) , AIAB- 7 3 9, 18 NRC 3 3 5 ( 19 7 9 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,12
N Atmic Energy Act , Sect ion 189a , 42 U.S.C. S 2239(a) . . . . . . . . . . . . . . . . . . . 6 At ani c Energy Ac t , 4 2 U. S .C. S 2 011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3 Na tional Environnental Pol icy Act , 42 U.S.C. S 4321. . . . . . . . . . . . . . . . . . . . 7 REGULATICNS 10 C.F.h. S 2.714(a)(1).............................................. 17,18,19,20,21 10 C.F.R. S 2.714(a)(2).............................................. 6 MISCELLANBOUS
" Final Procedures and Standards of No Significant Hazards Considerations," 51 Fed. Reg. 7744, effective May 5, 1986............ 15,16 Scfety Eva1un1 ion, Support Amendment No.1, Faei1ity Operating License No. NPF-39, Philadelphia Electric Canpany, (Limerick Generating Station, Unit No. 1), (February 6, 1986).................. 3 Nuclear Regulatory Carmission, Bi-Weekly Notice; Application and Amenchents to Operating Licenses involving No Significant Hazards Considerations; Correction, 51 Fed. Reg. 1051 (January 9, 1986)...... 4 Philadelphia Electric Ccapany (Limerick Generating Station, Unit 1)
Montganery County, Pennsylvania, Notice of Anendment Request, 50 Fed. Reg. 53235 (Decenber 30, 1985)............................... 4 Philadelphia Electric Caupany (Limerick Generating Station, Unit 1)
Consideration of Issuance of Anendment to Facility Operating License and Proposed No Significant Hazards Consideration Detennination and Opportun.ity for Hearing, 50 Fed. Reg. 52874 (Decenber 26, 1985)...... 3,8 6
l fEO UNITED STATES OF A'JERICA ,dpp 29
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NUCLEAR REGULATORY COMMISSION f/Cf pI **Eh 9 f BEFORE THE ATOMIC SAFETY BRER,jd AND LICENSI In the Matter of )
) Docket No. 50-352 OLA-1 PHILADELPHIA ELECTRIC COMPANY ) (Check Valves)
)
(Limerick Generating Station, ) Docket No. 50-352 OLA-2 Unit 1) ) (Containment Isolation)
RESPONSE OF THE NRC STAFF IN OPPOSITION TO THE APPEAL OF ROBERT L. ANTHONY FROM THE DENIAL OF HIS PETITION TO INTERVENE, REQUEST FOR A STAY AND TERMINATION OF THIS CONSOLIDATED PROCEEDING
- 1. INTRODUCTION On April 13, 1986 Robert L. Anthony ( Anthony) filed a brief in sup-port of his appeal 1 from the Atomic Safety and Licensing Board's (Licensing Board) denial of his petition to intervene and his request for a s tay. Antliony also appealed the termination of this amendment proceeding. U For the reasons that follow the NRC staff (Staff) opposes Anthony's appeal and urges that it be denied.
1 J_/ On April 19, 1986 Anthony in response to instructions from the Ap-peal Board filed a " Notice of Appeal of Licensing Board's Order of Valve Test 4/4/86 Dismissing our Petition to Intervene in Amendments #1 and #2."
2/ Philadelphia Electric Company (Limerick Generating Station, Unit 1)
Memorandum and Order Denying and Dismissing Petitions for Leave to Intervene and Terminating Proceeding. LBP-86-9, ( April 4, t
1986).
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II. BACI; GROUND
.- On December 18, 1985, the Licensee requested two amendments to its _
Limerick Unit 1 - operating license. With regard to amendment number one (OLA-1), the Licensee requested permission, on a one-time-only ba-sis, to temporarily extend the surveillance requirements of certain valves which under the Technical Specifications must be inspected nominally ev-ery 18 months; this surveillance can be performed only when the plant is shut down. The change would extend the 18 month surveillance interval by fourteen weeks beyond the maximum 25 percent extension a' <ed by the Technical Specifications. The amendment would permit the Licensee to delay performing the testing until a maintenance and surveillance outage which is scheduled to begin on or before May 26, 1986. 3_/
The NRC staff, after a review of the Licensee's request, determined that the condition of the valves in question would not change significantly during the short extension period. Specifically, the Staff concluded that:
The safety related aspects of extending this surveillance in-terval on a one time basis for about three months are insig-(1) Flow through the nificant valves or forfrom
, thethe following lines inreasons..
which they are located will be limited by the small line size and the provision of flow re-stricting orifices to further reduce potential flow rates, (2)~Any leakage from these lines outside of primary contain-ment would be contained in the secondary containment and processed by the standby gas treatment system. The analy-
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sis of such an event has already been performed and is in-cluded in the Final Safety Analysis Report in Section 15.6.2.
As indicated in the FSAR there would likely be a variety of indicators to the operator of a failed instrument line thus 3] At the prehearing conference on March 27, 1986 counsel for the Li-censee advised the Licensing Board that the maintenance and sur-veillance outage could take place as early as the beginning of May , 1986.
alerting plant staff to the need to isolate the line by use of other manual valves in the line. The staff has previously reached the conclusion in section 15.6 of the SER that the Limerick instrument line design is acceptable. (3) The 11-
- censee has examined the records of the initial flow testing performed ' on these valves and found that all valves were f tested successfully. Tne licensee further states that, based on available data, the valves are believed to be highly reli-able in performing their function of checking flow. The staff concludes that the condition of the valves is not expected to change significantly during the short extension period.
Based on the above, the NRC staff concludes that extension of the interval for the surveillance testing by 14 weeks on a one-time only basis is acceptable because the increased sur-veillance interval does not significantly increase the possibili-ty that an undetected failure will occur in the instrumentation line excess flow check valves covered by this Technical Spec-ification. Safety Evaluation, Support Amendment No.1, Fa-cility Operating License No. NPF-39, Philadelphia Electric Corr pany, (Limerick Generating Station , Unit No . 1) , at 2, (February 6,1986).
A notice of the Staff's proposed determination that there was no sig-nificant hazards consideration posed by the requested amendment and that interested parties had an opportunity to comment on the proposed deter-mination and request a hearing on the application by January 26, 1986 was published in the Federal Register on December 26, 1985. O On i
January 30, 1986 and February 5, 1986, Anthony filed requests for a hearing, petitions to intervene with respect to amendment one and a re-quest for a stay. Subsequently, on February 15, 1986, Anthony filed a document containing, inter alia, eleven contentions concerning amendment 4/ 50 Fed. Reg. 52874 (December 26, 1985).
number one to the Limerick license and renewed his request for a stay.
Staff opposed Anthony's petition to Intervene and his contentions. -
The Licensee's second amendment request (OLA-2), involved a one-2
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time-only e ttension to satisfy local leak rate testing requirements on cer-tain primary containment isolation valves . The notice of the Staff's proposed determinations that there was no significant hazards consideration posed by the second amendment request and that interested parties had an opportunity to comment and request a hearing by January 30, 1986 was published in the Federal Register on December 30, 1985. 6_/ On March 14, the Licensing Board was designated to rule on petitions to intervene and requests for a hearing with respect to OLA-2 and, on that same date, entered an Order consolidating the OLA-1 and OLA-2 proceedings.1 1
In a Memorandum and Order dated March 13, 1986 the Licensing Board found that Anthony's petition to intervene with respect to OLA-1 met the threshold requirements of 10 C.F.R. S 2.714, that he had estab-lished standing to intervene, b and that Anthony had satisfied the 5/ See, Response of NRC Staff in Opposition to Petition to Intervene
- and Request for a Hearing , February 25, 1986, and Response of NRC Staff to Anthony's Proposed Contentions, March 17, 1986.
6_/ 50 Fed. Reg. 53235 (December 30, 1985). This notice erroneously stated the deadline as February 3, 1986. A subsequent notice cor-rectly stated the deadline as January 30, 1986; see, 51 Fed.
Reg.1051 (January 9,1986).
7/ Memorandum and Order, March 14, 1986.
8/ Memorandum and Order, slip op. at 10-11, March 13,1986.
" aspects" requirement of the intervention rule. S However, the Licensing Board went on to state that before it could admit Anthony as a party to the amendment proceeding he must advance at least one accept- 3 able contention.l10/
The Licensing Board convened a prehearing conference in Philadel-phia , Pennsylvania on March 27, 1986 S to consider, inter alia, the petitions to intervene, the contentions filed and petitioner's request for a stay. At the prehearing conference, the Licensing Board discussed An-thony's motion for a stay and denied it. Tr. at 8-10. On April 4,1985 the Licensing Board set forth in writing its reasons for dismissing Antho-ny's request for a stay, his petitions to intervene in OLA-1 and OLA-2, his contentions on OLA-1 and terminating the proceeding. E In the interim, on April 1, 1986, Mr. Anthony filed a motion with the Atomic Safety and Licensing Appeal Board (Appeal Board) for direct-ed certification asking the Appeal Board to reverse the " verbal" order of the Licensing Board regarding his stay request. On April 11, 1986 the Appeal Board denied Anthony's motion. N Mr. Anthony's appeal from the Licensing Board's memorandum and order of April 4,1986 was filed on
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9/ Id. at 8-9.
10/ Id. at 10.
. HI Philadelphia Electric Company (Limerick Generating Station, Unit 1,)
! Memorandum and Order, slip2o ., (March 13, 1986) ,
12/ Memorandum and Order, slip op. April 4,1986.
13/ Memorandum and Order, ALAB-835, April 11,1986.
April 13 and at its conclusion includes still another stay request.
For the reasons set forth below the Staff opposes Anthony's appeal.
III. DISCUSSION A. The Standards for Intervention Section 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C. S 2239(a), provides that:
In any proceeding under [the] Act , for the granting, sus-pendin g , revoking , or amending of any license . . . the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.
10 C.F.R. Section 2.714(a)(2) of the Commission's Rules of Practice, re-quires that a petition to intervene in a Commission proceeding set forth with particularity:
(1) the interest of the petitioner in the proceeding; (2) how that interest may be affected by the results of the proceeding; and
- 3) the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.
In order for intervention to be granted, the Atomic Safety and Licensing Board desiCnated to rule on petitions to intervene and/or requests for hearing must find that the petition satisfies these standards, b
_14 / In view of ALAB-835, the Staff does not address Anthony's renewed request for a stay raised in this appeal, since no additional support for a stay is presented.
15/ Intervention may also be granted as a matter of discretion to some petitioners who are not entitled to intervention as a matter of right if the petitioner can show that the Commission's specific criteria (FOOTNOTE CONTINUED ON NEXT PAGE)
_7_
In determining whether the requisite interest prescribed by both Section 189a of the Atomic Energy Act and Section 2.714 of the Commis-sion's Rules of . Practice is present, the Commission has held that contem-i poraneous judicial concepts of standing are controlling. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (1976). Thus, there must be a showing (1) that the riction being challenged could cause " injury-in-fact" to the person seeking to intervene and (2) that such injury is arguably within the " zone of interests" protected by the Atomic Energy Act b or the National Environmental Policy Act. b See also Warth v. Seldin, 422 U.S. 490 (1975); Sierra Club v. Morton, 405 U.S. 727 (1972); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970).
" Abstract concerns" or a " mere academic interest" in the matter which are not accompanied by some real impact on a petitioner will not confer standing . See, In the Matter of Ten Applications for Low-En riched Uranium Exports to EURATOM Member Natiens_, CLI-77-24, 6 NRC 525, 531 (1977.); Pebble Springs, CLI-76-27, 4 NRC at 613, supra. Rath-(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) weigh in favor of discretionary intervention. See Portland General Electric Com pany , et al. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976). Since, as described below , the NRC staff believes Anthony failed to satisfy any of the above criteria, it has nothing to add that would be helpful in creat-ing a sound record in this proceeding. Id. Therefore, the NRC staff need not discuss discretionary interveiition further.
16/ 42 U.S.C. S 2011 et seq..
17/ 42 U.S.C. S 4321 et seq.
er, the asserted harm must have some particular effect on a petitioner, j Ten Applications, CLI-77-24, supra, and a petitioner must have some di-
. rect stake in the outcome of the proceeding.
See Allied-General Nuclear Services, et al. - (Barnwell Fuel Receiving and Storage Station),
ALAB-328, 3 NRC 420, 422 (1976).
B. Anthony's Petition to Intervene and Request for a llearing in Operating License klenchent No.1
- 1. Petition to Intervene The amendment at issue extends the surviellance interval for certain excess flow check valves in certain instrument lines for a period of 14 weeks beyond the maximum period permitted by the Technical Speci-fications . The interval for these valves is 18 months with an extension permitted by the Technical Specifications of 25 percent. As part of the Federal Register Notice of the proposed amendment, the Staff stated in its discussion of the basis for the Staff's "no significant hazards considera-tions" determination:
The consequences of leakage from an instrumentation line are minimal since the one quarter inch orifice inside con-tainment limits flow, and the majority of the line outside of primary containment is only three-eights inch in diam-eter. The lines protected by the check valves are also located within the reactor enclosure which is served by the standby gas treatment system so that any release from the line would be filtered and monitored. The failure of an instrument line is an analyzed event in the Final Safety Analysis Report and no aspect of the pro-
- gosed change to the Technical Specifications would require a change in the safety analysis. 50 Fed. R_e_g . 52874 (December 24, 1985) (emphasis added.)
In its March 13, 1986 Memorandum and Order, the Licensing Board inferred that the Federal Register notice offered a hearing on two aspects of OLA-1, the first related to leakage from the containment due to a check-valve malfunction and the second aspect related to an analyzed
failure of an instrument line. The Licensing Board initially held that Anthony's discussion of his concern about instrument line failure was di-
. rectly responsive to an aspect of the amendment noticed in the Federal .
r Register and thus Anthony had satisfied the " aspects" requirement of tne intervention rule.18/ However, at the prehearing conference Robert E.
Martin, NRC staff Project Manager for the Limerick Units, in response to questions from the Licensing Board concerning the scope of the OLA-1 amendment made it clear that the failure of the instrument lines was not a consideration in connection with OLA-1. Mr. Martin advised:
With respect to failure of the instrumentation line itself, the bounding scenario there would be if you have a fail-ure of the instrumentation line due to some cause, com-bined with a failure of the check valve to perform its function and shut off the flow of fluid, that would be your bounding scenario.
That was analyzed with respect to its consequences, the response of the plant systems and so forth in the Final Safety Analysis Report and reported in Section 15.6.
The Staff reviewed that analysis and presented its find-ings in the Safety Evaluation Report. This was in Au-gust of 1983.
In a lesser accident scenario than that, such as if you fail the instrumentation line but the check valve works, the consequences would be significantly less than that.
That is what we were refarring to when we pointed out in our Federal Register wice on page 52874, I believe it is, the third column there, the top of the third column, wherein we said:
"The failure of an instrument line is an analyzed event in the Final Safety Analysis Report, and no 4 aspect of the proposed change in the technical specifications would require a change in the safety analyses ."
18/ Memorandum and Order at 8-9, March 13,1986.
We also referred to the same subject in our safety evalu-ation on page two, page two of our safety evaluation accompanying the issuance of amendment number one, wherein we stated, after having discussed the bounding
. analysis, we stated: ,
"The analysis of such an event has already been performed and is included in the FSAR in Appendix Two. . ."
and so forth and so on. Tr. at 77-78.
In its April 4 Memorandum an 1 Order, the Licensing Board, acknowledged that it may have misperceived the scope of the requested amendment when it indicated that there were two discrete safety aspects in OLA-1, b and went on to state:
Apparently the Licensee and the Staff were also trying to explain to the Board that instrument-line failure qua instrument-line failure is not an issue in the proceeding on Amendment No.1. We have since revisited the appli-cation for Amendment No.1; the Staff's Safety Evalua-tion in support of Amendment No.1; pertinent parts of the Limerick FSAR; and the explanations by Mr. Martin of the NRC Staff at the prehearing conference. We now understand that the only issue considered in Amendment No. I was the effect of the delay in the surveillance and testing of the instrument-line, excess-flow check valves; not on the instrument lines themselves. Instrument lines are relevant because their failure may demand the actua-tion of the associated check valves . Instrument-line ,
excess-flow check valves which might fail during the extension of time until the surveillance and testing would not cause a failure of instrument lines . None of the analyses performed in connection with Amendment No.1 relates to instrument-line failure except as a demand upon check valves. Memorandum and Order at 7-8. (empha-sis added, footnotes omitted).
At the prehearing conference the Licensing Board pursued with Anthony the nature of the concerns he was attempting to raise in the proceeding. In response to this inquiry, Anthony stated that his inter-19/ See, Memorandum and Order, at 8-10, March 13,1986.
ests concerned the broad operational consequences of instrument line fail-ure. Tr. at 43, 55. Assessing Anthony's issues in light of its revised
- understanding pf the scope of the amendment at issue, the Licensing 3 Board concluded:
Accordingly, none of Mr. Anthony's contentions on Amendment No. I are within the scope of the notice of hearing. Nor do they have bases. Nor is the aspect of his proposed intervention as set out in his petition for leave to intervene within the scope of the proceeding.
Therefore, the Board does not have jurisdiction to con-sider Mr. Anthony's petition or his contentions on Amendment No.1. Memorandum and Order at 8.
The Staff agrees with the Licensing Board's conclusions concerning An-thony's petition to intervene and his contentions. Anthony attempts to raise issues relating directly to questions concerning the failure of the instrument lines and has not linked such issues to the scope of the amendment at issue -- the extension of the surveillance interval for cer-te.in excess flow check valves in these lines. The Licensing Board's con-clusions in this regard are in conformity with the Appeal Board's decision in Point Bench90/ L where it stated:
In a license amendment proceeding, a licensing board has only limited jurisdiction. The board may admit a party's issues for hearing only insofar as those issues are within the scope of matters outlined in the Commission's notice of hearing on the licensing action . Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 267, 289 n.6 (1979); Public Service of Indiana (Marble 11111 Nuclear Generating S tation , Units 1 and 2),
ALAD-316, 3 NRC 167,170 (1976).
-20/ Wisconsin Electric Power Company (Point Beach Nuclear Plant ,
Units 1 and 2), ALAB-739,18 NRC 335 (1979).
Decade [the intervenor] was aware it had to make this showing, yet it failed to provide any link demonstrating that sleeving may lead, or be related to tube failures.
. Absent a demonstration that sleeving would contribute to steam ' generator tube failure, the Licensing Board did not have to consider the probabilities and consequences etc. ALAB-739, at 339-340.
In the present proceeding, Anthony has made no effort to link the amendment to those issues he attempts to raise involving instrument line 9
1/ The Staff also noted in its response to Anthony's petition failures.
to intervene and request for a hearing that in Staff's view it was clear that Anthony was attempting to litigate once again the safety aspects of Limerick and advised that the time to litigate the safety design aspects of the pipes in question has passed. S A review of Anthony's appeal brief establishes that Anthony is still pursuing matters that are clearly not within the scope of OLA-1. At pages 2, 3, 4 of his appeal brief Anthony again conjures up a scenario that the skipping of the valve tests for approximately 96 days makes the probability of a severe accident at Limerick imminent. Anthony alleges that this would result because forces from within the reactor could bring about failure of the check valves and the instrument lines resulting in the l insbility to shut the plant down in an emergency. Anthony Appeal Brief at 2 and 4. Anthony again offers no foundation or basis for these allega-l 21/ 1 See, Response of NRC Staff in Opposition to Petition To Intervene and Request for a Hearing By Anthony / FOE, at 6, February 25, 1986. ,
22/ Id.
?
tions . IIis reference to pipe whip (M. at 2) was discussed at length by the Staff in its response to his petition to intervene wherein the Staff -
- noted that there is no nexus between the pipe whip issue and OLA-1 and, 3 4
further, the pipe. whip issue was resolved as stated in Supplement No. 4, SER at S 3.6.2. (May 1985).
Nevertheless, Anthony continues to pursue his view that the one-time-only time extension will cause a serious accident at Limerick.
Such an argument without any basis is manifestly insufficient to aupport his petition to intervene even if the allegations were germane to the scope of OLA-1. There simply is no evidence to support his bare allegations.
. Moreover, Anthony makes no effort to challenge the Staff's findings re-garding the impact of OLA-1. The Staff has repeatedly pointed out that the bounding consequences of the combined failure of an instrument line and the failure of the excess flow check valve is a matter addressed and i found acceptable in the FSAR. See; pp. 2-3, supra. In view thereof,
! Staff submits the Licensing Board was correct in denying Anthony's peti-
! tion to intervene.
- 2. Contentions Mr. Anthony submitted a total of twenty-nine contentions in All of his contentions were commented upon and connection with OLA-1.
opposed by the Licensee and the Staff and reviewed by the Licensing Board . IIis first eleven contentions were submitted on February 15, and
}
I were responded to in writing by the Licensee and the Staff. His second set of contentions, numbers twelve through twenty-nine, were submitted on March 19. In addition to the new contentions, Anthony also supple-mented several of his original contentions. The Staff objected to all of
_ _ , _ , _ - _ _ _ . , . - _ . _. - . , . . r--- ,---.--,-.-.-.-m - - - - ,
Anthony's additional and supplemental contentions. Because Anthony failed to serve the Staff with his additional and supplemental contentions,
- the Licensing Board permitted the Staff to respond to them orally on the record at .the prehearing conference. At the pr9 hearing conference, the Staff furnished its comments to each of Anthony's supplemental and addi-tional contentions and answered questions from the Licensing Board.
Anthony was then permitted to respond to Staff's comments and questions from the Licensing Board. Anthony was also permitted to question Robert E. Martin , NRC staff's Project Manager for the Limerick Units.
Tr. at 81. In Staff's view, Anthony's contentions have been thoroughly reviewed by the Licensing Board. The NRC staff objected to all of An-thony's contentions because each lacked an adequate basis to support the contention and with regard to a number of contentions, also lacked speci-ficity. As noted earlier, the Licensing Board, on April 4, 1986, denied all of Anthony's contentions for a lack of basis and because they were beyond the scope of OLA-1. 2"3/
The Staff agrees and submits the Licensing Board was correct in dismissing Anthony's contentions for lack of bases and being beyond the scope of OLA-1,
- 3. No Significant Hazards Consideration l
As pr.rt of his appeal, Anthony suggests that in the event that
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there is a hearing the Appeal Board should consider the correctness of l
the Str.ff's determination that Amendment No. I did not involve a signifi-
! cant hazards consideration. For support of this proposition Anthony re-l lies upon a biatement made by the Licensing Board that. "
. . . an 2_3 3 / Memorandum and Order at 8, April 4,1986.
allegation of any significant decrease in the margin of safety flowing from a 'no significant hazard consideration' amendment would be a fairly
. litiga ble . . . " . 24 / In addition to Anthony's references, the Licensing ;
Board also stated . . . that the issue under the notice of hearing is whether the 'no significant hazard consideration' determination is correct." 25/
The Staff does not agree that in the event a hearing is held in connection with an amendment that the subject of the proceeding would be the correctness of the Staff's "no significant hazards consideration" determination. 2G/ The purpose of any hearing would be to consider the health and safety and environmental consequences of the proposed amend-ment and to determine whether any different action should have been tak-en by the Staff with regard to the amendment. The hcaring would not be for the purpose of considering whether the Staff was correct in its "no 4 significant hazard consideration" determination.
The Commission made it clear that there was no intrinsic safety significance to the "no significant hazards consideration" finding by
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stating : -
In short, the no "significant hazards consideration" standard is a procedural standard which governs wheth-er an opportunity for a prior hearing must be provided 24/ Memorandum and Order, at 6, April 4,190G.
25/ Id.
26/ Memorandum and Order at 6-7, April 4,1986.
- . - - - . . m -
before action is taken b the Commission . . 51
- Fed. Reg. 7,744 at 7,746. f yj Thus, while the Staff agrees with the Licensing Board that the safe-ty subs'tance of Petitioner's assertions concerning any significant decrease a in the margin of safety flowing from the amendment could be a fairly liti-gable issue if, they otherwise satisfied the standards of basis, specificity and relevance, since it would bear upon the ultimate question of whether as a result of the amendment at issue, the facility can be operated in confermance with Commission regulations and without endangering public health and safety. However, the Staff does not agree that the issue pre-sented by the Notice of Hearing is whether the "no significant hazards consideration" is correct. 28/-
However, as pointed out above, Mr. Anthony did not link his concerns about instrument line failures to the amendment at issue -- an extension of the surveillance interval for instrument line excess flow check valves.
C. Anthony's Petition to Intervene and Request for a Hearing in Operating License Amendnent No. 2 The Licensing Board determined that Anthony's petition to intervene and request for -a hearing in connection with OLA-2 was not timel'/ and l
2_7 / On March 6,1986, the Commission published its " Final Procedures and Standards of No Significant Hazards Considerations", 51 Fed.
Reg. 7744, effective May 5,1986.
---28/ See, 48 Fed. Reg. 14873 at 14876. This is clarified further in the Final Rule, effective May 5,1986. See, new Section 50.58(b)(6) and explanation therein, 51 Fed. Reg. 775T.
I t
L
therefore the factors set forth in 10 C.F.R. 5 2.714(a) concerning late filed intervention petitions must be weighed b Memorandum ind Order
- at 10. The Licensing Board deterr. lined that in considering the factors the 2 balance weighed -in favor of denying Anthony's petition on the grounds of lcteness. M.at12.
Although the notice of opportunity for a hearing on Amendment No. 2, which was published on December 30, 1985, set February 3, 198G as the date for requests for hearing and petitions for leave to intervene to be filed, a subsequent Federal Register notice corrected the date to January 30, 1986, (see, fn. 4, su pra .) , Anthony did not file his re-sponse to the notice until February 26, 1986. In his response to the notice, Anthony did not address the late filing factors set forth in 10 C.F.R. S 2.714(a)(1). Mr. Anthony asserts that the late filing factors were not addressed because he did not consider that his response to the notice was late. Brief at 4. However, even if considered late, Anthony 29/ 10 C.F.R. S 2.714(a)(1) provides that with respect to untimely fil-ings, the following five factors should be balanced:
(1) go'o d-cause, if any, for failure to file on time; (2) the availability of other means whereby the petitioner's interest will be protected; (3) the extent to which the petitioner's participa-tion may be reasonably expected to assist in developing a sound record;
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(4) the extent to which the petitioner's interest will be represented by existing parties; and (5) the extent to which the petitioner's participa-tion will broaden the issues or delay the proceeding.
believes that the factors set forth in 10 C.F.R. S 2.714(a)(1) weigh in favor of considering his petition on the merits. The Staff agrees with
, the Licensing Board that a balancing of the lateness factors weigh against ,
r Anthony, hith regard to the first factor, good cause, the Licensing Beard found that Anthony had not established good cause for the late filing.
"'he Licensing Board rejected Anthony's representation that he believed that he had thirty days from the time that he received a copy of the let-ter dated January 27, 1980 sent to Mr. Edward G. Bauer, Jr., Vice Pres-ident, Philadelphia Electric Company from the Staff enclosing a copy of the notice. E Anthony presents no basis for this representation. The notice for Amendment No. 2 set January 30, 1986 as the date to file a timely response. The Notice stated that any request filed after that time would be considered late. 50 Fed. Reg. 53226-53227. The fact that the Staff provided Anthony and the service list with a copy of the notice did not operate to extend the deadlines set forth in the notice. in fact, An-thony recognized the time constraints set forth in the notice and filed his response to Amendment No. I soon after receipt of Staff's letter to Mr. Bauer, b However, his response to the notice for Amendment o 30/ This letter was sent to the Limerick service list.
31_/ The Staff did not argue that Mr. Anthony's response to the notice for Amendment No. I should be rejected because it was untimely but addressed the petition on the merits. Because the petition was only a few days late and due to the circumstances surrounding the distri-bution of the notice, the Staff addressed the petition without raising the lateness factor. Response of NRC Staff in Opposition to Petition to Intervene and Request for a Hearing by Anthony / FOE regarding Licensee's Amendment Request, at 3 fn.1.
No.2 was filed more than twenty days after receipt of the letter to Mr. Bauer and failed to address the late filing factors set forth in
. 10 C.F.R. 5 2.714(a)(1), which is fatal to the granting of his petition. ,
In discussing the other four factors the Licensing Board found that there are no other means to protect Anthony's interest and that no other party will represent his interest. Tlius, these two factors were found by the Licensing Board to weigh in Anthony's favor. The Staff does not disagree with these conclusions by the Licensing Board.
The Licensing Board was unable to determine whether Anthony's participation would assist in developing a sound record and found this factor to be neutral. EI The Staff does not believe that Anthony has established that he will make a contribution to the development of a sound record. As a late filing petitioner he must affirmatively demonstrate that he has special expertise which would aid in the development of a sound record and should provide with as much particularity as possible the pre-cise issues he plans to cover, identify prospective witnesses, and summa-rize their proposed testimony in order to prevail on this factor. b In this case Anthony has not met his burden.
On the last factor, whether the participation of Anthony would broaden the issues or delay the proceeding, the Licensing Board found that this weighs against Anthony. The acceptance of Anthony's petition would obviously broaden the scope of the proceeding due to the fact that 32/ Memorandum and Order at 11, April 4,1986.
31/ Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704,16 NRC 1725,1730 (1982).
without his intervention there would be no hearing. The Licensing Board determined that this factor weighed against Anthony. Anthony agrees
- that his participation will broaden the issues in the pecceeding but as-
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serts that therc has been no harm to PECo up until now and that it is essential for there to be a record developed for Amendment No. 2. Peti-tion at 4. In view of the fact that Anthony acknowledges that his re-quest for a hearing will broaden the issues, this factor should be weighed against him.
In balancing the five factors, the Staff believes that the balance weighs against considering Anthony's non -timely filing. Two factors weigh in Anthony's favor, the second and the fourth, the second dealing with other means to protect Anthony's interest and the fourth with other parties representing his interest. The Appeal Board has observed that these two factors are to be accorded relatively less weight than the other three factors in 10 C.F.R. 5 2.714(a)(1). South Carolina Electric and Gas Co.,(Virgil C. Summer Nuclear Plant , Unit 1), ALAB-642, 13 NRC 801, 895 (1981); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1767 (1982);
Mississippi Power and Light Co. (Grand Gulf Nuclear Station , Units 1 and 2), ALAB-704, 16 NRC 1725, 1730-31 (1982). The other factors to be considered in connection with a nontimely filing weigh against consid-eration of Anthony's late filing and thus, the Licensing Board was correct in concluding that Anthony has failed to demonstrate " good cause" and has failed to sustain the heavy burden on the other fa ctors. " b 34/ Memorandum and Order at 11, April 4,1986
Accordingly, the balance of the five factors set forth in 10 C.F.R .
S 2.714(a)(1) weigh against consideration of Anthony's request for a hearing and pet'ition to intervene with regard to Amendment No. 2. e IV. CONCLUSION For the reasons set forth above, the Staff opposes Anthony's appeal and urges that it be denied.
Respectfully sutmitted,
. qd b~'i~Th"/L-t Benjamin 11. Vogler #
Counsel for NRC Staff I
d eph tberk a stant Chief IIear ing Counsel Dated at Bethesda, Maryland this 28th day of April, 1986 O
A
UNITED STATES OF AMERICA
, NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
+ . j In the Matter of- )
) Docket No. 50-352 OLA-1 PillLADELPillA ELECTRIC COMPANY ) (Check Valves)
)
(Limerick Generating Station, ) Docket No. 50-352 OLA-2 Unit 1) ) (Containment Isolation)
CERTIFICATE OF SERVICE I hereby certify that copies of " RESPONSE OF THE NRC STAFF IN OPPO-SITION TO TIIE APPEAL OF ROBEET L. ANTHONY FROM THE DENIAL OF HIS PETITION TO INTERVENE, REQUEST FOR A STAY AND TERMI-NATION OF THIS CONSOLIDATED PROCEEDING" 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 asterisk through deposit in the Nuclear Regulatory Commisr. ion's internal mail system, this 28th day of April, 1986:
Ivan W. Smith, Chairman (2) Mr. Edward G. Bauer, Jr.
Administrative Judge Vice President & General Counsel Atomic Safety and Licensing Board 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 Conner and Wetterhahn U.S. Nuclear Regulatory Commission 1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20555* Washington, D.C. 20006 Mr. Gustave A. Linenberger, Jr. Kathryn S. Lewis, Esq.
l Administrative Judge 1500 Municipal Services Bldg.
o Atomic Safety and Licensing Board 15th and JFK Blvd.
U.S. Nuclear Regulatory Commission Philadelphia, PA 19107 Washington, D.C. 20555*
Mr. Frank R. Romano Ms. Phyllis Zitzer, President Air and Water Pollution Patrol Ms. Maureen Mulligan 61 Forest Avenue Limerick Ecology Action Ambler, PA 19002 762 Queen Street Pottstown, PA 19464 l
Thomas Gerusky, Director Barry M. Hartman a Bureau of Radiation Protection Governor's Energy Council Dept. of Environmental Resources P.O. Box 8010 5th Floor, Fulto,n Bank Building 300 N. 2nd Street
Spence W. Perry, Esq.
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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 Harrisburg, PA 17120 Jay Gutierrez Robert L. Anthony Regional Counsel Friends of the Earth of the USNRC, Region I Delaware Valley 631 Park Avenue 103 Vernon Lane, Box 186 King of Prussia, PA 19406*
Moylan, PA 19065 i Timothy R. S. Cam pbell, Director Gene Kelly Department of Emergency Services Senior Resident Inspector 14 East Biddle Street U.S. Nuclear Regulatory Commission West Chester, PA 19380 P.O. Box 47 Sanatoga, PA 19464 Docketing and Service Section Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington, D.C. 20555*
U.S. Nuclear Regulatory Commission Washington, D.C. 20555* Atomic Safety and Licensing Appeal Board Panel (8)
David Warsan U.S. Nuclear Regulatory Commission Consumer Advocate Washington, D.C. 20555*
- Office of Attornep General 1425 Strawberry Square liarrisburg, PA 17120 Angus R. Love, Esq.
Montgomery County Legal Aid 107 East Main Street Norristown, PA 19401
@fy-- _lP i, Benjamin H. Vogler Counsel for NRC Staff I
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