ML20203L560
| ML20203L560 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 04/28/1986 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20203L563 | List: |
| References | |
| CON-#286-959 OLA-OLA-2, NUDOCS 8605010301 | |
| Download: ML20203L560 (35) | |
Text
e i i A}U i
00CKETED US4Pc UNITED STATES OF AMERICA NUCLEAR REGULMORY C0tHISSI Before the Atcmic Safety and Licensing
'1hcmias S. Moore, Clui hfh\\
Dr. Reginald L. Gotchy 6dic,,'
Howard A. Wilber In the Matter of
)
) Docket No. 50-352 Philadelphia Electric Ccupany
)
(Check Valve) otA[oL4-4
) Docket No. 50-352M (Limerick Generating Station,
)
(Containment Isolation)
Unit 1)
) April 28, 1986 LICENSEE'S BRIEF IN ANSWER 'IO TIE APPEAL BY ROBERT L. ANIHONY FRCH THE "MENORANDUM AhD ORDER DDNING AND DISMISSING PETITIONS EUR LEAVE 'IO INI'ERVENE AND TERMINATING PROCEEDING" Troy B. Conner Jr.
Mark J. Wetterhahn Robert M. Rader Conner & Wetterhahn, P.C.
Suite 1050 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Counsel for the Licensee Philadelphia Electric Ccepany Of Counsel:
Edward G. Bauer, Jr.
Eugene J. Bradley 2301 Market Street Philadelphia, PA 19101 i
8605010301 860428 PDR ADOCK 05000352 Q
PDR TSo3 l
TABLE OF CINIDTIS 1
Preliminary Statement.
2 Factual Background 10 Arginent I.
Mr. Anthony's Late Petitions Failed to Address and Did Not Meet the Five Mandatory Lateness Criteria..........
10 II. Mr. Anthony Did Not Satisfy the " Interest" Requirements for Intervention and Therefore Lacked Standing to Intervene 12 III. Mr. Anthony Failed to State a Single Admissible Contention in Either Petition 20 Conclusion 28
_i_
e.
D TABLE OF CITATIONS NPC Issuances Page Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), AIAB-328, 3 NPC 420 (1976) 20 Boston Edison Ccmpany (Pilgrim Nuclear Power Station), LBP-85-24, 22 NIC 97 (1985), aff'd, AIAB-816, 22 NPC 461 (1985) 16 Ccmnonwealth Edison Ccmpany (Zion Station, Units 1 and 2), AIAB-616,12 NBC 419 (1980) 24,25 Duke Power Capany (Catawba Nuclear Station, Units 1 and 2), AIAB-825, 22 NPC 785 (1985) 23 Houston Lighting and Power Ccmpany (Allens Creek Nuclear Generating Station, Unit 1),
AIAB-535, 9 NBC 377 (1979) 20 Icnq Island Lighting Ccmpany (Shoreham Nuclear Power Station, Unit 1), AIAB-832, 23 NPC (March 26,1986) 11 Mississippi Power & Light Ccmpany (Grand Gulf Nuclear Station, Unit 1), LBP-84-19,19 NPC 1412 (1984) 10 Mississippi Power & Licht Ccmpany (Grand Gulf Nuclear Station, Units 1 and 2), AIAB-704,16 NBC 1725 (1982) 11 Nuclear Engineering Conpany, Inc. (Sheffield, Illinois low-Level Radioactive Waste Disposal Site), AIAB-473, 7 NBC 737 (1978) 20 Philadelphia Electric Ccmpany (Limerick Generating Station, Unit 1), ALAB-835, 23 NPC (April 11, 1986) 1 ALAB-833, 23 NPC (April 4, 1986) 7 LBP-86-9, 23 NBC (April 4, 1986) passim "Establishnent of Atcmic Safety and Licensing Board" (March 13, 1986) 7, 22 "Mernorandum and Order Consolidating Proceedings and Setting Schedule for Identification of Issues" (March 14, 1986) 7 Page
" Memorandum and Order Ruling on Robert L.
Anthony's Petition for Imave to Intervene" 4,5,10,13,14 (March 13, 1986)
" Establishment of Atanic Safety and Licensing Board" (February 12, 1986) 5,22 Portland General Electric Ccmpany (Trojan Nuclear Plant), AIAB-534, 9 NRC 287 (1979) 23 Public Service Catpany of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2),
AIAB-316, 3 NRC 167 (1976) 23 Transnuclear, Inc., CLI-77-24, 6 NRC 525 (1977) 19 Virginia Electric and Power Ccapany (North Anna Nuclear Power Station, Units 1 and 2), AIAB-522, 9 NBC 54 (1979) 16 Westinghouse Electric Corp. (Export to Scuth Korea), CLI-80-30,12 NRC 253 (1980) 19,20 Wisconsin Electric Power Carpany (Point Beach Nuclear Plant, Units 1 and 2), AIAB-739,18 NRC 23,24 335 (1983)
Statutes Atcmic Energy Act of 1954, 42 U.S.C. S2239(a),
as amended Section 12, Pub. L.97-415, 96 Stat. 2073 983) 25 Federal Register Act, 44 U.S.C. S1508..........
11 Regulations
)
10 C.F.R. 52.105(d) 11 10 C.F.R. 52.708 4
10 C.F.R. 52.714 4,11 10 C.F.R. 52.714a(a) 1 10 C.F.R. 52.714 (a) (2) 12 10 C.F.R. 52.714(b) 28
- 111 -
r a
P_ age _
12 10 C.F.R. 52.714 (d) 10 C.F.R. 52.718 (i) 7 10 C.F.R. S2.785(b) (1) 7 10 C.F.R. 550.91(a) (4) 25 10 C.F.R. 550.92 3
Miscellaneous 48 Fed. Reg.14873 (April 6,1983) 26 50 Fed. Reg. 52874 (Deceber 26, 1985) 3,4 50 Fed. Reg. 53226 (Dec.uaxr 30, 1985) 6 51 Fed. Reg.1051 (January 9,1986) 6 Safety Evaluation by the Office of Nuclear Reactor Regulation [to] Support Ntrnber No.
1 to Facility Operating License No. N?F-39, Philadelphia Electric Conpany, Limerick Generating Station Unit 1, Docket No. 50-352 (February 6,1986) 3 letter frm Walter R. Butler, Division of BWR Licensing, NBC to Edward G. Bauer, Jr.,
Vice President and General Counsel, Philadelphia Electric Conpany (February 6, 1986) 4 Letter frm Eugene J. Bradley, Associate General Counsel, Philadelphia Electric Cmpany to Harold R. Denton, Director, Office of Nuclear Reactor Regulation, NRC (Decerrber 18, 1985) 3,5
- iv -
t UNITED STATES OF AMERICA NUCLEAR REGUIA'IORY CCM4ISSION Before the Atmic Safety and Licensing Appeal Board In the Matter of
)
) Docket No. 50-352-OIA-1 Philadelphia Electric Cm pany
) (Check Valve)
) Docket No. 50-352-OIA-2 (Limerick Generating Station,
) (Containment Isolation)
Unit 1)
) April 28, 1986 LICENSEE'S BRIEF IN ANSWER 'IO 'IEE APPEAL BY POBERP L. AN'niCNY FROM 'IEE "MEM3RANDUM AND OFDER DENYDG AND DISMISSRIG PETITIONS FOR LEAVE 'IO INTERVENE AND TERMINATING PROCEEDING" Preliminary Statment Petitioner Robert L. Anthony has appealed a final decision by the presiding Atmic Safety and Licensing Board
(" Licensing Board" or
" Board"), dated April 4,1986, in the captioned consolidated proceeding.
The decision denied Mr. Anthony's petitions for intervention in two license amendrent cases, which the Board thereby terminated.1I Pursuant to 10 C.F.R. S2.714a (a), Licensee Philadelphia Electric Capany ("Li-censee") opposes Mr. Anthony's appeal and requests that the Atmic Safety and Licensing Appeal Board (" Appeal Board") affirm the decision below.S
-1/
Philadelphia Electric Cmpany (Lifnerick Generating Station, Unit
- 1), LBP-86-9, 23 NBC (April 4,1986) (hereinafter "Merrorandum and Order Denying Petitions to Intervene").
2_/
'Ihe reasons why no stay should be granted were articulated by the Appeal Board in its recent denial of Mr. Anthony's previous motion.
- Limerick, supra, AIAB-835, 23 NPC (April 11, 1986).
Accordingly, no argument is demed appropriate because the renewed motion raises nothing new or different frm its predecessor.
- 0 As discussed below, the consolidated proceeding arose fran Amend-ment No. I and Amendment No. 2 to the operating license for the Limerick Generating Station, Unit 1
(" Limerick"), which were challenged by Mr.
Anthony in separate intervention petitions.
As to the petition chal-lenging Amendment No. 1, the Licensing Board initially determined that Mr. Anthony had met the threshold requirements for intervention by satisfying the criteria for late petitions and demonstrating an adequate interest.
'Ihereafter, the Board held that Mr. Anthony had failed to plead an admissible centention with respect to Amendment No. 1 and also reversed its earlier holding that Mr. Anthony had demonstrated an adequate interest for intervention.
In the same decision, the Board also held that Mr. Anthony had failed to meet the lateness criteria relative to his petition to intervene in the proceeding on Amendment No.
2.
Licensee agrees that Mr. Anthony's petitions were correctly denied for the reasons assigned by the Board.
As further grounds, Licensee subnits that the Board's findings as to the lack of any interest suffi-cient for intervention (petition related to Amendment tb.1) and late-ness (petition related to Amendment No. 2) apply with equal force to both petitions in the consolidated proceedings.
Accordingly, the decision of the Licensing Board should be affirmed.
Factual Background This appeal involves two intervention petitions.
The first is a late petition for leave to intervene and for a hearing filed by Pobert L. Anthony with respect to the proposed issuance of Amendment No.1 to the operating license for Limerick.
On Decanber 18, 1985, Licensee subnitted an application which requested the NPC to issue an amendment
to its operating license for Limerick Unit I revising the Technical Specifications to allow a one-time-only extension of 14 weeks for the testing of excess flow check valves in certain instrumentation lines.3_/
21s routine testing is required by the Technical Specifications to be performed every 18 months and necessitates a plant shutdown of approxi-mately two weeks.A#
As shown on the application's certificate of service, Mr. Anthony and other parties to the NBC operating license proceeding were served.
Pursuant to the regulations, the NBC published notice in the Federal Pagister on Decerber 26, 1985 of its proposed detemination that the requested amendment involves no significant hazards consideration and stated that the NBC was seeking public omments on its proposed detemination.
We notice provided that, by January 26, 1986, "any person whose interest tray be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written petition 3/
The application discussed the need and technical basis for the requested amendment and also provided information regarding the determination on "significant hazards consideration" to be made by the Ca mission pursuant to 10 C.F.R. 550.92.
The Licensee concluded that the proposed temporary amendment of the schedule for tests specified in the application did not present a significant hazards consideration under Section 50.92.
See generally letter frm Eugene J. Bradley, Associate General Counsel, Philadelphia Electric Cmpany to Harold R. Denton, Director, Office of Nuclear Peactor Pegulation, NPC (December 18, 1985) (enclosing Application for Amendment of Facility Operating License NPF-39).
See also 50 Fed. Reg. 52874 (Decmber 26, 1985).
4/
See Safety Evaluation by the Office of Nuclear Peactor Pegulation
[to] Support Amendment No. 1 to Facility Operating License No.
NPF-39, Philadelphia Electric Cmpany, Limerick Generating Station Unit 1, Docket No. 50-352 at p.1 (February 6,1986).
_4_
for leave to intervene."El As custmary, the notice also stated that untimely petitions to intervene would not be entertained absent a favorable determination based upon a balancing of the factors for admitting late contentions.
'Ihe NBC granted the proposed amendment on February 6, 1986, authorizing the testing to be perfonned during a scheduled outage to begin on or before May 26,1986.5 By letter dated February 6, 1986, the Chief, Docketing and Service Branch, hT, confirmed his earlier telephone conversation in which Mr.
Anthony was inforned that the office of the General Counsel had reviewed and rejected his January 30th petition because of its nonempliance with the rules.
Accordingly, the NRC expressly declined to docket Mr.
Anthony's nonconfonning petition.1!
On February 5, 1986, Mr. Anthony filed an amendment to his petition.
-5/
50 Fed. Beg. 52874, 52875 (Dec eber 26, 1985).
As the Licensing Board observed, the notice was inartfully worded because it did not explicitly include the right of a petitioner to request a hearing.
As the Board also noted, however, "it is apparent that Mr. Anthony was not mislead [ sic]" because he in fact requested a hearing.
Limerick, supra, " Memorandum and Order Ruling on Anthony Petition" at 5 n.4 (March 13, 1986). Thus, there is no question as to the adequacy of Federal Register notice.
6/
See letter fran Walter R. Butler, Division of BWR Licensing, NPC to Edward G.
- Bauer, Jr.,
Vice President and General Counsel, Philadelphia Electric Cmpany (February 6, 1986).
The license amendment was supported by a written safety evaluation which was also attached.
7/
According to his letter, the docketing officer cited violations of (1) the formal requirments for documents under 10 C.F.R. S2.708; (2) the requirements for a certificate of service under 10 C.F.R. 52.712; and (3) the requirements for a petition to intervene under 10 C.F.R.
S2.714.
After Mr. Anthony said that he would file an amendment to his petition, the docketing officer, without having seen the amendment, stated that he would refer it to the Atanic Safety and Licensing Board Panel for consideration when received.
By Order dated February 12, 1986, the Chairman of the Atmic Safety and Licensing Board Panel appointed a licensing board to rule upon petitions for leave to intervene and/or requests for hearing with respect to Amendment No. 1, and to preside over the proceeding if a hearing were ordered.E Both the Licensee and NBC Staff opposed Mr.
Anthony's petition to intervene. After preliminary procedural rulings, the Licensing Board held "that Mr. Anthony's petition meets the thresh-old requirernents for admission set out in Section 2.714."1 The Board directed the filing of answers to contentions proposed by Mr. Anthony and scheduled a prehearing conference for March 27,1986.E On February 26, 1986, Mr. Anthony filed a second late petition to intervene and request for a hearing with respect to the proposed issu-ance of Amendment No. 2 for Limerick.
In an application for a license amendment and exmption to Part 50, Appendix J, filed Decernber 18, 1985,EI Licensee sought an amerxinent which would revise Technical Specifications 4.6.1.2.d and g for Unit 1 and an exernption to allow a once-only extension of tire to satisfy local leak rate testing 8_/
Limerick, supra, "Establishnent of Atcznic Safety and Licensing Board" (February 12, 1986).
9_/
"Mernorandum and Order Ruling on Anthony Petition" at 10 (March 13, 1986).
10/ Id. at 11.
11/ The application provided the necessary information regarding the determination on "significant hazards consideration" to be made by the Ccmnission, as r aviously discussed in note 3, supra.
See l
generally letter #
.a Eugene J. Bradley, Associate General Counsel, Philadelphia C.ectric Ccmpany, to Harold R.
Denton, Director, Office of Nuclear Peactor Pegulation, NBC (Decmber 18, 1985).
requirements on certain primary contairnent isolation valves. Under the-proposed amenchent, the surveillance testing also would be performed during the plant shutdown beginning no later than May 26, 1986.
As with Amendment No. 1, the NBC Staff published a proposed deter-minath on Amendment No. 2 that it involved "no significant hazards consideration" in the Federal Register.
'Ihe notice in the Federal Register, published Decerter 30, 1985, as with Amendment No. 1 contained the custcnary statement that "any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding nust file a written petition for leave to intervene" within the prescribed time. E Accordingly, the last day fcr filing a timely petition to intervene and request a hearing on Amendment No. 2 was January 29, 1986.
Mr.
Anthony's petition, filed almost four weeks later, did not address the five criteria for accepting late-filed petitions and did not even acknowledge its lateness.
Both the NBC Staff and Licensee opposed Mr.
Anthony's late petition on Amendment No. 2.
The Licensing Board's threshold rulings on Mr. Anthony's inter-vention regarding Amendment No.1 did not apply to Amendment No. 2.
On March 13,1986, the same Board was appointed to rule on petitions for leave to intervene and/or request for hearings regarding Amendment No. 2
-12/ See 50 Fed. Reg. 53226, 53227 (Decanber 30, 1985).
The notice erroneously stated the filing deadline as February 3,1986.
This error resulted frcn miscalculation of the actual publication dato and was rectified by a subsequent notice which correctly stated the deadline as January 29, 1986.
See 51 Fed. Peg. 1051 (January 9, 1986).
and to preside over any such proceeding.1_3,/
On the next day, the Licensing Board entered an order consolidating the proceedings on I
Amendment No. I and Airardient No. 2, scheduled a prehearing conference, and identified issues for argunent at the prehearing conference.EI on March 19, 1986, License sought interlocutory review, pursuant to 10 C.F.R. 552.718 (i) and 2.785(b) (1), of the Board's preliminary ruling that Mr. Anthony's petition on Amendment No. I had met threshold plead-ing requirements.
The Appeal Board denied the motion in a Mernorandum and Order, dated April 4,1986, ruling that "[t]he notion is premature because the Licensing Board's March 13, 1986 ruling did not have the effect of admitting Mr. Anthony as a party to the proceeding."E The
]
scheduled prehearing conference before the Licensing Board therefore went forward on March 27, 1986. At that time, the Licensing Board heard argunent on Mr. Anthony's proposed contentions.
On April 4, 1986, the Licensing Board issued its decision dismiss-ing and denying Mr. Anthony's petitions for leave to intervene and terminating the consolidated proceedings.
'1he Board admitted to sme confusion in its initial understanding of the scope of Amendment No.1, Mr. Anthony's petition and his proposed contentions.
At first, the Board " inferred, erroneously... that there were two discrete safety i
M/ Limerick, supra, " Establishment of Atcmic Safety and Licensing Board" (March 13, 1986).
M / Limerick, supra, "Mernorandum and Order Consolidating Proceedings and Setting Schedule for Identification of Issues" (March 14, j
1986).
1_5/ Limerick, supra, ALAB-833, 23 NFC (April 4,1986) (slip op. at 5
5-6).
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aspects to Amendment No.1:
(1) leakage through primary contairunent via the instrinnent-lines or their excess-flow check valves and (2) instru ment-line failure as a consequence of a failure of their excess-flow check valves."E As a result of the presentation by the NBC Staff and the Licensee at the prehearing conference, however, the Board reached I
the correct understanding "that the only issue considered in AnwA==it No. I was the effect of the delay in the surveillance and testing of the 1
instrtunent-line, excess-flow check valves; not on the instrument lines themselves."El Inasmuch as Mr. Anthony conceded that each of his proposed con-tentions regarding Au&delt No. I related to instrument line fail-
- ure,
/
the Board necessarily concluded that none of his contentions 18 4
related to " leakage through primary containment."19/
'1his inexorably led the Board to rule that "none of Mr. Anthony's contentions on Amend-ment No.1 are within the scope of the notice of hearing."E I
i i
4 16/ Limerick,
- supra,
" Memorandum and Order Denying Petitions to Intervene" at 4 (April 4,1986).
i 17/ Id. at 7.
As the Board further stated:
"None of the analyses Frformed in connection with Amendment No.
I relates to instrument-line failure except as a demand upon check valves." M.
at 8.
j a
e 18/
Id. at 5-6.
I 19/ Id. at 4.
J 20/ Id. at 8.
The Board noted that if Mr. Anthony had petitioned to
'Etervene on " leakage through the containment" issues, the Board "would have found that his residence, twenty miles from the Limerick Station, is too far for 'any injury in fact' to him as a consequence of any leakage through the small orifices into i
secondary contairunent."
M. at 5.
The Board also found Mr.
Anthony's contentions to lack bases. M.at8.
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With regard to Amencknent No. 2, the Board did not find it necessary to reach the admissibility of proposed contentions because it determined that Mr. Anthony's late petition did not, on balance, meet the starrlard for acceptance. 'Ihe Board found that Mr. Anthony had not denonstrated
" good cause" for his late petition filed February 26, 1986 because of in-hand receipt of the Federal Pegister notice of proposed action on Amendment No. 2 almost a month earlier.E The Board also weighed the fifth factor, delaying the proceeding, against Mr. Anthony because
"[r]equiring Licensee to go to hearing, when in fact it may be entitled as a matter of law to have an invalid petition dismissed, would be a harm unwarranted in the present situation."2_2/
The Board weighed the five factors on balance and denied intervention on the ground of tardi-ness.EI The Board therefore dismissed Mr. Anthony's two petitions and terminatedtheproceeding.b On April 12, 1986, Mr. Anthony appealed.
21/ Limerick,
- supra, "Msorandtzn and Order Denying Petitions to Intervene" at 11 (April 4,1986).
Id.
at 12.
Unable to
" conclude either way whether his
-22/
-participation in any proceeding might reasonably be expected to assist in developing a sound record," the Board held the third factor to be neutral.
Id. at 11.
It weighed the second and fourth
~
factors, protection and representation of Mr. Anthony's interests by other means or parties, in Mr. Anthony's favor.
23/ Id. at 12.
,2_4 / The Board did not have to decide whether the anticipated plant shutdown before any hearing and decision would have mooted Mr.
Anthony's petitions. As an Appendix to its decision, the Licensing Board noted that "[slooner or later,... a Licensing Board will be faced with the decision as to whether it must conduct a hearing on mooted matters under the Sholly amendrient.
Prior guidance irom the Appeal Board or the Ccamission may save either an unnecessary hearing or remand for a hearing." Limerick, supra, "Mmorandtsn and (Footnote Continued)
^.
Argunent I.
Mr. Anthony's Late Petitions Failed to Address and Did Not Meet the Five Mandatory Iateness criteria.
The Licensity Board's decision dismissing Mr. Anthony's petition on Amendment No. I was preceded by a Mernorandun and Order, issued March 13, 1986, which found that Mr. Anthony had met the threshold requirernents for intervention.E Specifically, the Board ruled that Mr. Anthony had, on balance, met the standards for admitting late petition #'6/ and that Mr. Anthony had set forth a litigable " interest" in the proceed-ing.EI Although the Board ultimately dismissed Mr. Anthony's petition on Amendment No.1 for lack of a valid contention, Licensee subnits that the dismissal should also be affirmed by this Board because of Mr.
Anthony's failure to meet the threshold requirements for inter-vention.E (Footnote Continued)
Order Denying Petitions to Intervene" (April 4,1986) (Appendix).
It noted that another Licensing Board had answered this question in the affirmative.
Mississippi Power & Light Ca@any (Grand Gulf Nuclear Station Unit 1), LBP-84-19, 19 NBC 1412 (1984).
In this proceeding, counsel for the Licensee informed the Licensing Board at the prehearing conference en March 27, 1986 that the plant shutdcwn might occur as early as the first of May (Tr.144). The Licensee agrees that until Comtission guidance is provided on the mootness question, the problun will continue to arise.
M/ Limerick, supra, " Memorandum and Order Ruling on Anthony Petition" (March 13,1986).
26/ Id. at 7.
27/ Id. at 10.
2_8/ As the Appeal Board recently ruled in Shoreham, an appellee "may 8
defend its favorable result on any ground that is supported by the record," including a claim of error which would not otherwise have (Footnote Continued)
As a matter of precedent for future license anendment cases, it is particularly inportant to establish that the time limits for seeking intervention and hearing are those established by the Federal Register Act, 44 U.S.C.
51508, and the Comission's regulations in 10 C.F.R. 52.105(d), as well as to reaffirm this Board's decisions that a proper showing pursuant to 10 C.F.R. S2.714 nust be made to justify g late intervention.E The record and Licensee's arguments on the issues of notice and late intervention have already been thoroughly briefed in Licensee's motion to the Appeal Board for directed certification. To avoid unnec-essary repetition, Licensee hereby incorporates its argument on lateness as if fully stated herein. E The Licensing Board's denial of Mr. Anthony's petition related to Amendment No. 2 for lateness supports denial of the petition related to Amendment No. 1.
In fact, the ciretnstances of the two petitions are virtually indistinguishable.
'Ihe only difference is the degree of untinelir.ess, which is irrelevant to whether " good cause" for g lateness has been shown.El The Licensing Board correctly denied (Footnote Ccntinued) been aplable.
Iong Island Lighting Ccmpany (Shoreham Nuclear Power Station, Unit 1), Abe-832, 23 NBC (March 26, 1986)
(slip op. at 6).
29/ See, e.g., Grand Gulf, supra, AIle-704,16 NBC 1725 (1982).
30/ See
" Licensee's Motion for Directed Certification of the
'43:crandum and Order Ruling on Pobert L. Anthony's Petition for leave to Intervene'" at 7-21 (March 19,1986). A copy is attached for the convenience of the Appeal Board.
3 / Degree of lateness is factored into the fifth criterion in (Footnoto Continued)
- s intervention on Amendment No. 2 for lateness because only the second and fourth factors (which are entitled to less consideration) weighed in Mr.
Anthony's favor.EI Although it reached the right conclusion, the Board seriously erred in holding that the third factor, a destonstrated ability to contribute to the record, was " neutral" just because "there will be no record, sound or otherwise, on Amendment tb. 2 unless Mr. Anthony assists in developing it."E II. Mr. Anthony Did Not Satisfy the " Interest" Requirements for Intervention and Therefore Lacked Standing to Intervene.
The lack of any interest by Mr. Anthony sufficient to justify his intervention is an additional ground for affirming the decision below.
It, too, involves a threshold determination which makes it unnecessary to consider the denial of Mr. Anthcny's contentions.
Under the Ccmission's Rules of Practice, a petition to intervene in a licensing proceeding may be granted only if the requirements of 10 C.F.R. 552.714 (a) (2) and (d) have been satisfied.
These prercquisites are set forth below:
(rootnote Continued) considering whether adntission of a late petitioner would delay the proceeding.
3_2/ For the reasons discussed in Licensee's incorporated brief, 2
however, the second and fourth factors should not have been weighed in Mr. Anthony's favor.
33/ Limerick,
- supra, "Memorandtmu and Order Denying Petitions to
-~
Intervene" at 11 (April 4,
1986).
Tne Poard's standard inpermissibly shifted Mr.
Anthony's affirmati e burden to demonstrate empliance with the lateness factors to the other parties. More important, the possibility that there wid be "no remrd, sound or otherwise," sinply ignores the well-established Grand Gulf standard discussed in Licensee's eerlier brief at page 20.
(a) (2)
We petition shall set forth with partim1arity the interest of the petitioner in the prwing, how that interest may be affected by the results of the proceeding, including the reasons why petitioner should be permitted to intervene, with particular reference to the factors in paragraph (d) of this sectic, and the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.
(d) We Ccanission, the presiding officer or the atcmic safety and licensing board designated to rule on petitions to intervene and/or requests for hearing shall, in ruling on a petition for leave to intervene, consider the fcilowing factors, among other thinJs:
(1) The nature of the petitioner's right under the Act to be made a party to the proceeding.
(2) @e nature and extent of the petitioner's
- property, finmcial, or other interest in the proceeding.
(3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest.
Initially, the Licensing Board misunderstood (as it later acknowl-edged), the precise nature of Amendment No.1, which led to an errone-ously expansive view of the " interests" which might be affected by the grant of the amendment. Specifically, the Board's conclusion that "the twenty-mile distance between [Mr. Anthony's] residence and the plant would (not] preclude a cognizable interest in the proceeding"NI was based on the faulty prenise that the alleged interest involved "[tlhe consecuence of (an instrument line] failure."El
@e Board ruled the 34/ Limerick, supra, "Merrorandum and Order maling on Anthony Petition" at 10 (March 13,1986).
35/ Id. (ertphasis in original).
14 _
radiological consequences of such an accident "to be about the same as in the traditional construction permit and operating license proceeding
.... 36/
With an enhanced understanding of Amendment No.1, the Board later reversed itself on the basic, but faulty, pranise described above.
In dismissing Mr. Anthony's petition, it held:
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 instrunent lines thernselves.
Instrunent lines are relevant s
because their failure may demand the actuation of the associated checi valves.
Instrument-line, excess-flow check valves wttich might fail during the extension of time until the surveillance and testing would not cause a failure of instrunent lines. None of the analyses performed in connection with Amend-cent No. I relates to instrunent-line failure except as a demand upon check valvea.
'Ihe rather vague statement in the notice of opp 3rtunity for hearing to the effect that failure of the instrument line is an analyzed event in the FSAR nay pertain to the relative role of instrument lines vis-a-vis the check-valve failure.37/
In an earlier portion of the same decision, the Board referred to its earlier finding that Mr. Anthony possessed an adequate " interest" for intervention, based upon the possibility of an instrument line failure, again noting that the consequence of such a failure might be the same "as in a traditional operating license or construction permit proceeding."El 4
36/ Id.
E/ Limerick, supra,
" Memorandum and Order Denying Petitions to Intervene" at 7-8 (April 4,1986) (atphasis added).
38/ Id. at 5.
i
,. f Amed, however, with its newly gained understanding that the prMing on Amendment No. I was limited to the consequences of " leak-age through the containment via the instrment-lines or their ex-cess-flow check valves,"El the Board acknowledged that a different result should have been reached as to Mr. Anthony's interest in the pr M _ing.
Thus the Licensing Board stated that if it had correctly understood the scope of the proceeding and the nature of the petition at the time it ruled on r.he threshold requirenents, "we would have found t
l that [Mr. Anthony's] residence, 20 miles frm the Limerick Station, is i
too far for 'any injury in fact' to him as a consequence of any leakage t
through the small orifices into secondary containment."SI The Licensing Board's analysis that Mr. Anthony had not shown the requisite interest to intervene in the proceeding on Airmidient No. 1 j
applies with equal force to the proceeding on Amenchnent No. 2 and is j
supported by precedent.
In the Pilgrim operating license amenchnent i
proceeding, the Licensing Board denied a late petition for leave to intervene because the petitioner lacked standing under the rules as i
j applied to amendment proceedings. The Board held This case concerns a request for a license amendment and it is not controlled by the same standing considerations that govern standing when an operating license is sought.
Whatever the risk to the surrounding ccumunity fra a reactor and its associated fuel pool, the risk frm the fuel pool i
I i
39/ Id.
s l
40/ Id. The Board therefore vacated its earlier decision conditionally granting Mr. Anthony's petition for leave to intervene (id. at 13),
but did not expressly state that it. was denying the petitTon, inter alia, on the ground that Mr. Anthony lacked a proper interest in the proceeding.
i l
alone is less and the distance of residence frm the pool for which standing wculd be appropriate would, accordingly, be less.
Consequently, we do not consider residence 43 miles frm this plant to be adequate for standing. We need not decide how close residence might be before standing would be estab-lished.41/
In affirming that decision in Pilgrim, the Appeal Board expressly left open the question of "whether either [ petitioner's] place of residence or his consunption of focd products originating in the vicini-ty of the facility serves to clothe [him] with the requisite mantle of standing to challenge the proposed wendment to the Pilgrim operating license."E Licensee subnits that the Pilgrim rationale and outcme are con-trolling here. Mr. Anthony resides in Moylan, Pennsylvania, which lies sme 20 miles southeast of the Limerick plant.
In his petition to intervene with regard to Amendment No. 1, Mr. Anthony did not address 41/ Boston Edison Cmpany (Pilgrim Nuclear Power Station), LBP-85-24, 22 hr 97, 99 (1985), aff'd, AIAB-816, 22 NBC 461 (1985) (emphasis in original). The Board added that it knew of "no scenario under which radiation attributable to the fuel pool ' would affect a residence 43 miles distant frm the fuel pool; and petitioner has not informed us of any such scenario." Id.
42/ Pilgrim, supra, AIAB-816, 22 hTC at 465.
Although it noted one particular precedent on standing, the Appeal Board in Pilgrim did not cite its prior holding in Virginia Electric and Power Cap 3ny (North Anna Nuclear Power Station, Units 1 and 2), AIN3-522, 9 NFC 54 (1979).
In that case, the Appeal Board reversed the denial of standing to petitioners in a license amendment proceeding to enable expansion of the spent fuel pool capacity for Units 1 and 2 of the North Anna plant.
It is uncertain whether the Appeal Board in Pilgrim believed that its earlier North Anna holding was distinguishable or should be reconsidered when its opinion would not constitute dictum.
The Licensing Board similarly noted uncertainty in the applicability of the North Arma decision.
See
- Limerick, supra, "Memorands and Order Denying Petitions to Intervene" at 5 n.1 (April 4,1986).
the " interest" requirenent.
'Ihe only assertion of any " interest" that can be gleaned frm his petition is a general interest shared by the public in the safe operation of the plant, to wit:
We are convinced that any extention (sic] of time for the tests required to determine the ability of the instrunentation lines to function properly would pose risks to our health and safety since these lines are essential to operator information and functioning in every aspect of the plant's operation and are a key link in the control of the nuclear process and absolutely essential to the safe shut-down of the plant in the event of any accident at the plant which could result in the release of radioactive poisons to the enviroment, thereby threatening us and the public. 9/
Similarly, the only purported " interest" in Amenchnent No. 2 assert-ed by Mr. Anthony is as follows:
We believe that we are entitled as effected [ sic]
residents and PECo ratepayers (1) to be admitted as a party to the proceedings, and that (2) as property owners and workers in the area of the Limerick plant we have family and financial interests in the proceedings, and (3) if this amencinent were issued, there would be severe repercussions for us through the threat of radioactive poisoning frm a possible radiological accident, the necessity to sell our property and seek sployment outside the Pero area, and the a::ccmpanying financial and social disruption of our lives.M/
Nothing in these self-serving, unsupported allegations states how Mr. Anthony, as one who resides, owns property or works 20 miles distant frm the Limerick plant, will suffer any injury or otherwise be affected by a short extension of the time within which Licensee will test certain M/ " Anthony Petition" (January 30, 1986).
4_4_/ " Petition by Anthony for a Hearing and Icave to Intervene" (February 26, 1986).
r' excess flow check valves or conduct local leak rate testing on certain primary contalment isolation valves.
Nothing asserted by Mr. Anthony states any connection between the grant of Amendment Nos. 1 and 2 and the alleged " threat of radioactive poisoning frm a possible radio-logical accident."SI The mere recitation that an accident is possible does not hoso facto create any interest on the part of Mr. Anthony which might be potentially affected.
Absent a specified nexus between the an=rde.nts and his putative interest, Mr. Anthony has failed to dmon-
, strate the nature of his interest and how it might be affected by the
.uteme of this proceeding.5/
Put differently, nothing alleged by Mr. Anthony shows any person-alized grievance which gives him standing under the Ccanission's regu-lations and precedents.
As the Ccmnission has st sted, sme " injury in fact" to the petitioner himself, and not a generalized grievance or interest shared by a large class of the public, is necessary for stand-ing. In Transnuclear, Inc., CLI-77-24, 6 NBC 525 (1977), the Ccanission held as follows in deciding that petitioners lacked standing to request q' '
a hearing:
i Any right the Petitioner may have to demand a hearing in the present proceeding nust be based upon e
45/
Id. -
/
g/ Mr. Anthony attempts to establish an interest by ascerting that the extansion " constitutes a high risk... since the safe operation of the reacter cannot be assured without these tests having been successfully cx)ncluded."
Id.
Apparently, Mr. Anthony is arguing that any schedular exmptTon autmatically constitutes a safety hazard.
Such reasoning is logically deficient because, on that
- basis, the NRC could never grant a schedular amendment or exemption.
'Ihis allegation does not create any interest on the part of Mr. Anthony.
l r
I
19 -
Section 189 of the Atmic Energy Act of 1954, as amended, 42 U.S.C. 2239. h t section provides that a hearing m st be granted, on the request of persons who can denonstrate an " interest [which] may be affected by the proceeding." Under the most recent Supreme Court decisions on standing, a party seeking relief mst " allege see threatened or actual injury resulting frm the putatively illegal action before a federal court may assume jurisdiction."
Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973), Warth
- v. Seldin, 422 U.S.
490, 499 (1975), see Simon v.
Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976).
One focus of the " injury in fact" test is the concept that a claim will not normally be entertained if the " asserted harm is a 'gener-alized grievance' shared in substantially equal measure by all or a large class of citizens...."
Warth v.
Seldin, 422 U.S.
at 499.
hs, even if there is a generalized asserted harm, the Petition-ers mst still show a distinct and palpable harm to them.
Id.
at 501. See United States v. Students Challenging Regulatory Action Procedures (SCRAP),
412 U.S. 669 (1973).E/
'lhe Cmmission reviewed and reaffirmed these requirements for standing in rejecting intervention petitions in Westinghouse Electric e
Corp. (Export to South Korea), CLI-80-30,12 NRC 253 (1980).
It again eiphasized the inportance of stating sme " injury in fact" to the petitioner himself as a basis for establishing the requisite personal interest in the proceeding, h Camission held:
In developing the " injury in fact" requirment, the Court has -held that an organization's mere interest in a probim, "no matter how long-standing the interest and no mtter how qualified the orga-nization is in evaluating the proble," is not sufficient for standing to obtain judicial review.
Sierra Club v. Morton, 405 US 727, 739 (1972). W organization seeking relief m st allege that it will suffer see threatened or actual injury resulting 47/ 6 NRC at 530-31 (enphasis added).
While the cited proceeding was for consideration of export license applications, the Cm mission did not distinguish the standing requirernents frm those applications in other proceedings, including reactor applications.
---w
,gn-
,s v.,
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fran the agency action.
Linda R.S. v. Richard D.,
410 US 614, 617 (1973); Warth v. Seldin, 422 US 490, 499 (1975).
Simon v.
Eastern Kentucky Welfare Rights Organization, 426 US 26, 40 (1976), made clear that "an organization's abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury, required by article III."48/
Contrary to these requirements, Mr. Anthony has shown no threatened or actual injury in fact fran the issuance of Amendment Nos. I and 2.
His petition states only an abstract, generalized concern for safety indistinguishable fran the concern of the general public and is there-fore insufficient for standing.
III. Mr. Anthony Failed to State a Single Admissible Contention in Either Petition.
As discussed, the Licensing Board initially misunderstood the nature of Amendment No. 1 and, consequently, the scope of the notice of opportunity for hearing issued by the Camission.
At the prehearing conference, however, the Board obtained clarification fran the NBC Staff and Licensee as to the limited nature of Amendment No.1, which it then correctly understood not to entail any incremental risk associated with instrument line failure "except as a demand upon check valves." E
-48/ 12 NBC at 258.
See also Nuclear Engineering Cm pany, Inc.
(Sheffield, Illinois, Im-Ievel Radioactive Waste Disposal Site),
AIAB-473, 7 NBC 737, 739-43 (1978) ; Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), AIAB-328, 3 NBC 420 (1976).
The Appeal Board has ruled that organizational standing "is wholly derivative in character."
Houston Lighting and Power Catpany (Allens Creek Nuclear Generating Station, Unit
- 1),
ALAB-535, 9 NRC 377, 390 (1979).
Therefore, precedents on organizational standing apply equally to individuals.
49/ Limerick,
- supra,
" Memorandum and Order Denying Petitions to Intervene" at 8 (April 4,1986).
Accordingly, the Board correctly sought clarification frca Mr.
Anthony as to whether his contentions related solely to the consequences of instrument line failure.
If so, they were beyond the scope of the pr M ing.
In response, Mr. Anthony stated at the prehearing confer-ence "that each of his contentions relate to instrument-line failure" and attarpt to " predict the broad operational consequences of instru-ment-line failure."E Given this unanbiguous statement by Mr. Anthony, the Licensing Board was led inexorably to the conclusion that "none of Mr. Anthony's contentions on Amendment No. I are within the scope of the notice of hearing." EI On appeal, Mr. Anthony does not challenge the Board's reasoning.
Instead, he argues that he should have been able to pursue contentions related to the consequence of instrument line failure. For exanple, Mr.
Anthony asserts:
[V]alve failures in the instrumentation lines can precipitate other failures and the end result could be a loss of ability to shut down the plant in an emergency which could bring on breaches of contain-ment and radioactive releases to the ccatunity.3/
'1he deficiency in Mr. Anthony's argument is his inability to allege, with adequate specificity and bases, any mechanism by which failure of a check valve could result in instrument line failure and the postulated consps of such failure.
In short, Mr. Anthony has never refuted the position of the NFC Staff and Licensee, adopted by the Licensing 50/ Id. at 6.
51/ Id. at 8.
52/ " Anthony Appeal" at 2 (April 12,1986).
l
Board, that the only consequence of an excess flow check valve failure 4
would be " leakage through the small orifices into secondary contain-ment. 53/
'Ihus, the Licensing Board properly rejected the attenpt by Mr.
4 3
Antlxmy to litigate issues not enempassed by the notice of hearing.
The proceeding below presented only very narrow questions relating to L
f I
the validity of Amendment Nos. 1 and 2 to the Limerick operating li-cense. Under the governing notices of opportunity for a hearing and the I
delegation of authority to the Licensing Board,54/
the consolidated proceedings cannot be a basis for litigating safety and environmental issues which were reviewed by the NRC Staff prior to the issuance of an l
53/ "Memorands and Order Denying Petitions to Intervene" at 5 (April 4, 1986).
54/ See Philadelphia Electric Conpany (Docket No.
50-352-OIA),
"EstablislYnent of Atmic Safety and Licensing Board" (February 12, 1986). The Order stated:
'Ihis Board is being established pursuant to a notice published by the Cmmission on Deceber 26, 1985 in the Federal Register (50 F.R.
52874) entitled, " Consideration of Issuance of Amendment to Facility Operating License and Proposed No Significant Hazards Consideration Determination and Opportunity for Hearing."
'Ihe amendment would revise the Technical Specifications to allow a one-time-only extension of time to satisfy a limited i
nist)er of testing requirenents for the excess flow check valves in certain instrunentation lines which nust be performed every 18 months and which require a plant shutdown, i-A similarly worded order was entered with regard to Amendment No.
i 2.
Philadelphia Electric Capany (Docket No.
50-352-OIA-2),
" Establishment of Atmic Safety and Licensing Board" (March 13, 1986).
3 I
l l
operating license and which were or could have been litigated in the operating license proceeding for Limerick.55/
This point was driven home cogently by the Appeal Board in a license amndment proceeding for the Point Beach facility.N The anendment permitted the licensee to repair degraded steam generator tubes by sleeving than rather than plugging the tubes and ramving them fran service.
'Ihe intervenor proposed a contention concerning the effects of steam generator tube failures during accident and normal cperating conditions.
The Appeal Ecard affirmed the Licensing Board's denial of the contention and its ruling that " absent a showing that sleevina would lead to tube failures, the issm of the consequences of 55/ As the Appeal Board stated in the Catawba proceeding:
Adjudicatory boards do not have plenary subject matter jurisdiction in Ccanission proceedings.
Under the Atanic Energy Act, the Nuclear Pegulatory Ccmnission is supowered to administer the licensing provisions of the Act and use licensing boards "to conduct such hearings as the Ccmnission may direct."
The
- boards, therefore, are delegates of the Ccanission and, as such, they may exercise authority over only those matters that the Ccmnission ccmnits to then. The various hearing notices are the mans by which the Ccmnission 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),
AIAB-825, 22 NBC 785, 790 (1985) (footnotes anitted).
See also Portland General Electric CaTpany (Trojan Nuclear Plant), ALAB-534, 9 NPC 287, 289-90 n.6 (1979); Public Service Carpany of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2),
AIAB-316, 3 NFC 167,170-71 (1976).
56,/ Wisconsin Electric Power Carpany (Point Beach htclear Plant, Units 1 and 2), AIAB-739,18 NPC 335 (1983).
steam generator tube failure was not relevant to [the] amendment pro-ceeding."EI The Appeal Board explained as follows:
In a license amendment proceeding, a licensing board has only limited jurisdiction. 'Ihe board may 4
admit a party's issues for hearing only insofar as those issues are within the scope of matters outlined in the Ccunission's notice of hearing on the licensing action.
Here, the notice of hearing stated [that]
the proceeding would concern the repair of steam generator tubes by sleeving and the operation of the Point Beach plant with sleeved tubes. 'Ihus [intervenor] had to put forth a cogni-zable claim that sme element of the sleeving process gives rise to an enhanced likelihood of tube rupture and the allegedly concanitant consequences.
[Intervenor] was aware it had to make this yet it failed to provide any link showing demonstrating that sleeving may lead, or be related, to tube failures.58/
r Similarly, in a proceeding regarding enlargement of the spent fuel pool storage capacity for the Zion plant, the Appeal Board ruled that the Licensing Board had correctly excluded testimony as to alleged inadequacies in the emergency plan entirely urzelated to expansion of the spent fuel pool.59/
The Appeal Board stated that the Licensing Board "was not empowered to reconsider whether the Zion facility should have been licensed to operate in the first instance, or whether the i
57/ Id. at 339 (emphasis added).
M/ Id. (citations mitted) (footnotes cxnitted).
59/ Ccemonwealth Edison Cortpany (Zion Station, Units 1 and 2),
AIAB-616,12 NBC 419 (1980).
I e
~. _
emergency plan approved in conjunction with that license was generally in need of revision."$I For the same reasons, the Licensing Board below properly denied each of Mr. Anthony's proposed contentions which sought, in essence, to reopen the operating license proceeding to litigate safety issues such as reactor design and accident analysis for Limerick.
'Ihose matters were beyond the scope of the notice of opportunity for hearing.
While the Licensing Board correctly excluded issues beyond the scope of the proceeding, it may have created sme confusion by misstat-ing, in Licensee's view, the standard by which the license amendments were to be evaluated. The Board stated that "the issue under the notice of hearing is whether the 'no significant hazards consideration' deter-mination is correct" and that "an allegation of any significant decrease in the margin of safety flowing fran a 'no significant hazards consid-eration' amendment would be a fairly litigable issue notwithstanding the continuing validity of the FSAR."61/ Licensee disagrees. Under Section 189a(2) (A) of the Atanic Energy Act, 42 U.S.C. S2239(a) (2) (A), as well as the Cmmission's regulations in 10 C.F.R. 550.91(a) (4),62/ a finding of "no significant safety hazards consideration" only serves to define 1
the timing of a hearing in relation to the issuan of the requested 60/ Id. at 426.
g/ Limerick,
- supra, "Mernorandun and Order Denying Petitions to Intervene" at 6-7 (April 4,1986).
i M/ The Ccunission'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 Atanic Energy Act, 42 U.S.C. S2239(a).
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amendment.
If the NRC makes a final determination that no significant hazards consideration is involved, it can issue the amendment, effective iMutely, even if a hearing has been requested.
Otherwise, issuing the amendment mist await the outcme of the hearing.
The Statements of Consideration underlying the rule make it clear that the purpose and effect of a "no significant hazards consideration" finding is limited to the innediate effectiveness of an amendment prior to a hearing.
As the Ccmmission explained in rulmaking, "new 550.91 would permit the Ccrmission to make an amendment inmediately effective in advance of the holding and ccrpletion of any required hearing where it has determined that no significant hazards consideration is in-volved."SI The Ccmnission sphasized that the new rule " permits the Ccanission to make an amendment inmediately effective, notwithstanding the pendency before it of a recuest for a hearing frcm any person (even one that meets the provisions for intervention in S2.714), in advance of the holding and cmpletion of any required hearing, where it has de-termined that no significant hazards consideration is involved."64/
If a petitioner is entitled to a hearing, whether the NRC has made a "no significant hazards consideration" determination is irrelevant as to hearing issues.
Issuance of the amendment, like the operating license itself, would depend upon a showing by the licensee that it has met all statutory and regulatory requirements, e.g., that the amendnent presents no undue risk to the public health and safety.
Accordingly, j
i g/ 48 Fed. Reg. 14873,14876 (April 6,1983) (enphasis added).
64/ Id.
(sphasis added).
Mr. Anthony errs in asserting that the Licensing Board " side stepped its responsibility to rule on the hazards issue." 65/
The Board also correctly ruled that all of Mr. Anthony's con-tentions lacked eJequate bases.66/ Here again, Mr. Anthony has made no contrary showing on appeal.
Instead, he sinply asserts that he "can find no support for [the Licensing Board's] conclusion that extention
[ sic] of the time for testing the valves wxild not increase the risk of weakness in valves and their connections to instrument lines being overlooked by the skipping of surveillance."EI The thrust of his argument appears to be that " surges in reactor pressure and tmperature
... will cause both (excess flow check valves and associated instru-fail."68/
No basis was demonstrated below for this ment lines] to assertion and, in any event, such contentions clearly exceeded the scope of the proceeding.
Under Mr. Anthony's scenario, the consequences of the postulated accident result frm ternperature and pressure changes in unspecified lines, not frm any failure of an excess flow check valve during the period covered by Amendment No. 1.
In short, Mr. Anthony's 6_5/ " Anthony Appeal" at 3 (April 12,1986).
g / Limerick, supra, "Mmorandum and Order Denying Petitions to Intervene" at 8 (April 4,1986).
H/ " Anthony Appeal" at 3 (April 12,1986).
6_8/ Id. Mr. Anthony adds that the issue, as he has framed it, is "that Torces frm the reactor operating on both valves and lines could bring on the failure of both."
Id. at 4.
Licensee finds no portion of the record in which Mr. Anthony raised an issue of such reactor " surges" or " forces." No basis for the claim is cited on appeal.
I i
l
contentions are invalid as beyond the scope of the proceeding under the Point Beach decision and lack requisite specificity and bases.69/
Conclusion For the reasons discussed above, the Licensing Board properly denied Mr. Anthony's petitions for leave to intervene on Amendment Nos.
1 and 2.
'Ihe Appeal Board should affirm this action because Mr.
Anthony's petitions did not meet the Ccmnission's requirements for late intervention and a showing of an " interest" in the proceeding. Further, both petitions were deficient because Mr. Anthony failed to plead a single valid contention within the scope of the proceeding with adequate specificity and bases.
Respectfully subnitted, CONNER & hTITERHAHN, P.C.
I e
m Troy nner, Jr.
Mark J. Wetterhahn Robert M. Rader Counsel for the Licensee April 28, 1986 69/ 'Ihe Licensing Board did not find it necessary to reach the merits l
of Mr. Anthony's proposed contentions on Amendment No. 2 because it denied his petition for lateness. Limerick, supra, " Memorandum and Order Denying Petitions to Intervene" at 12 (April 4,
1986).
Nonetheless, the same deficiencies discussed above also inhere in Mr. Anthony's proposed contentions on Amendment No. 2.
'Ihey lack adequate specificity and bases as required by 10 C.F.R. 52.714(b).
For exanple, many of the contentions sinply state Mr. Anthony's
" disagreement with findings by NRC."
- See, e.g.,
"Supplanent to Anthony Contentions" at 3 (March 19,1986_). Elsewhere, Mr. Anthony cites technical documents without an explanation or rationale sufficient to support any connection to Amendment No. 2.
Id. at 6.
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-0 UNITED STATES OF AMERICP NUCLEAR REGULATORY COMMISSION In the Matter of
)
) Docket No. 50-352-OLA-1 Philadelphia Electric Company
) (Check Valve)
) Docket No. 50-352-OLA-2 (Limerick Generating Station,
) (Containment Isolation)
Unit 1)
)
April 28, 1986 CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Brief in Answer to the Appeal by Robert L. Anthony from the 'Memoran-dum and Order Denying and Dismissing Petitions for Leave to Intervene and Terminating Proceeding,'" dated April 28, 1986 in the captioned matter have been served upon the following by deposit in the United States mail this 28th day of April, 1986:
Thomas S. Moore, Chairman Ivan W. Smith, Chairman Atomic Safety and Licensing Atomic Safety and Appeal Board Licensing Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr. Reginald L. Gotchy Dr. Richard F. Cole Atomic Safety and Licensing Atomic Safety and Appeal Board Licensing Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Mr. Howard A. Wilber Mr. G.A. Linenberger, Jr.
Atomic Safety and Licensing Atomic Safety and Appeal Board Licensing Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 t
r Docketing and Service James Wiggins Section Senior Resident Inspector U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 P.O. Box 47 Sanatoga, PA 19464 Benjamin H. Vogler, Jr.
Counsel for NRC Staff Mr. Frank R. Romano Office of the Executive 61 Forest Avenue Legal Director Ambler, PA 19002 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Board Panel
.U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Philadelphia Electric Company ATTN:
Edward G.
Bauer, Jr.
Vice President &
General Counsel 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 V
Robert M.
Rader