ML20205C256
| ML20205C256 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 08/08/1986 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#386-273 ALAB-840, OL, NUDOCS 8608120292 | |
| Download: ML20205C256 (8) | |
Text
t. 3'l3 U
,TED UNITED STATES OF AMERICA E 11 P3 57 12X1 EAR REGUIRIORY COM4ISSION OFFIC= *--
GOCKLTIhu, 'M IM,
~
Sg;g,y;('
Before the Ccmnission 6D O!
In the Matter of
)
)
Philadelphia Electric Ccmpany
)
Docket Nos. 50-352
)
50-35 Cb (Limerick Generating Station,
)
Units 1 and 2)
)
LICENSEE'S OPPOSITION 'IO FRIENDS OF THE EAR 1E'S PETITION FOR REVIEW OF ALAB-840 On July 28,
- 1986, intervenor Friends of the Earth
("EDE")
petitioned the Comission for review of ALAB-840, issued July 18, 1986.N Pursuant to 10 C.F.R. 52.786 (b) (3), Licensee Philadelphia Electric Ccmpany (" Licensee") opposes EDE's request on the grounds that EDE has failed to show any error in ALAB-840 which has prejudiced EDE in any way. Nonetheless, as discussed below, the Ccumission should vacate ALAB-840.
While Licensee disagrees with nuch of ALAB-840,2/ the Appeal Board correctly denied the relief sought by EDE. 50E's arguments as to an ex parte ccrmunication are frivolous.
Indeed, it is very difficult to 1/
Philadelphia Electric Ccmpany (Limerick Generating Station, Units 1 and 2), ALAB-840, 24 NPC (July 18,1986).
2]
Licensee has already discussed these substantive points in its brief filed with the Ccmnission.
See generally Licensee's Answer i
to Petition by EDE to Peopen the Record and Request for Sanctions (filed July 9,1986).
860812O292 860808 PDR ADOCK 05000352 PDR G
M
n i b
cupaherd, even at this stage, exactly what grounds ME asserts as a basis for relief.
The sinple, uncc'ntradicted facts are these.
First, no member of
~
the Appeal Board below received a copy of'the subject legal monograph I
alleged by NE to constitute an g parte comunication until June 2, f
1986,E well after the Appeal Board had issued the decision of concern to FOE on May 7, 1986.4/
second, copies of the legal moncgraph were served upon the boards ard parties in this proceeding by the NRC's Docketing and Service Branch, not by Licensee, its counsel or s ee other outside source.
Hence, Licensee's counsel did not at any time "ccsmunicate" with the Appeal Board in this proceeding, g parte or l
otherwise, by furnishing any member of the Appeal Board a copy of the j
monograph.5/ Under these circumstances, no basis whatsoever existed for any charge of an g parte conmunication, nuch less a ccumunication which could have influenced the outcome of AIIE-836.
The only other matter which warrants ccament on ALAB-940 is the Appeal Board's finding of jurisdiction to review ME's claims,6/
3/
AIAB-840 at 2 n.1.
4 4/
See Limerick, supra, AIAB-836, 23 NRC 479 (1986).
i 5/
'Ihe Chairman of the Atcznic Safety and Licensing Appeal Panel, but not any member of the Limerick board, was sent a copy by the publisher. See AIAB-840 at 2 n.l.
6/
Licensee did not " presume [] away" the Appeal Board's jurisdiction, as stated by the Appeal Board.
AIAB-840 at 4.
At the time ME filed its motion, the Appeal Board had appellate jurisdiction over emergency planning for the State Correctional Institution at Graterford and, following action _ by the Licensing Board on the 1
remanded issue in AIAB-836, will have jurisdiction over the remand (Footnote Continued) l 1
4
,_.. _ __,~.
L.
notwithstanding the passage of jurisdiction fr m the Appeal Board to the Cmmission upon the issuance of AIAB-836 and the filing of petitions for review.E The basis of the Appeal Board's finding of jurisdiction was as follows:
Where a question has been raised about the integrity of the decisionmaking process, the decisionmaker necessarily retains residual power to address such matter when requested, notwithstanding that jurisdiction over the underlying substantive claitrs th mselves now lies elsewhere.8/
The Appeal Board's statement is unsupported by any NRC regulation or precedent recognizing any such " residual power" which creates dual jurisdiction.9 Indeed, under this theory, the Licensing Board as well (Footnote Continued) issue.
As the Appeal Board stated, "[nlone of these remaining matters is the subject of an Anthony /ME contention."
- d. at 4 n.3.
Nor was either of these matters the subject of the instant motion to reopen by ME.
Therefore, because ME had filed its motion with the Cmmission as well as the Appeal Board, Licensee followed what it believed to be the custmary rule in an unbroken line of NRC precedents that jurisdiction as to a particular matter cannot be shared by two different tribunals at the same time. See note 9, infra. Accordingly, Licensee addressed its pleading to the Carrmission as the tribunal within the NRC which undoubtedly had jurisdiction to consider FOE's motion to reopen. The Appeal Board nembers were, of course, each served a copy.
7/
As the Appeal Board noted, its jurisdiction over the offsite emergency planning issues raised by ME " passed to the Cmmission with the issuance of AIAB-836 and the subsequent filing of petitions for review of that decision."
_Id. at 4.
8/
Id.
9]
The Appeal Board in this very proceeding, in fact, previcusly examined the passage of jurisdiction fran the Licensing Board to the Appeal Board.
It noted that, by its holding, "the possibility of dual jurisdiction over the same issues is foreclosed."
Limerick, supra, ALAB-726, 17 NRC 755, 758 (1983).
See also Metropolitan Edison Cmpany (Three Mile Island Nuclear Station, Unit No.1), ALAB-699,16 NRC 1324 (1982).
h
L.
would share jurisdiction.El The only judicial precedent it cites is actually to the contrary.11/ Applied to NBC cases, the Appeal Board's i
holding means that the Ccmnission could assert jurisdiction over cases in the Courts of Appeals whenever the " integrity" of its administrative processes were " questioned."El In short, Licensee sees no basis for the Appeal Board's assertion of jurisdiction over a portion of EDE's motion to reopen which is now being considered by the Ccmnission.
Nor was there any point to its i
10/ Notwithstanding that the. Licensing Board's decision was rendered more than a year ago, EDE asked the Ccmnission and Appeal Board, inter alia, to " declare the hearings on Limerick offsite emergency planning discredited and prejudiced." EVE Petition to Reopen at 1 (June 24, 1986).
See Limerick, supra, LBP-85-14, 21 NBC 1219 (1985).
Yet, the Appeal Board's theory would vest the Licensing i
Board with jurisdiction to decide this claim had EVE chosen to present it.
-11/ In Massachusetts Bay Telecasters, Inc. v. EDC, 261 F.2d 55, 67 (D.C. Cir. 1958), mod. on other grounds, - 295 F.2d 131, cert.
denied, 366 U.S. 918 (1961E the United States Court of Appeals for the District of Columbia remanded the~ case to the FCC for its determination of petitioner's claims of improper influence.
The ECC did not assert jurisdiction to decide the claim of improper influence while the case was pending before the Court of Appeals.
Rather, it awaited the outccme of that claim before the reviewing tribunal, including appropriate instructions on remand to decide the matter.
p/ In Diablo Canyon, the Ccunission expressly disavowed such authority, observing that it "should not, withcut judicial approval, reconsider a decision after the filing of a petition for l
judicial review." Pacific Gas and Electric Ccmpany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-85-14, 22 NBC 177, 179 (1985). It is noted that the Appeal Board in Marble Hill decided a question of law on which a petition for judicial review had been I
filed only after the Court of Appeals acceded to the request by the petitioner and stayed its briefing schedule until thirty days -
l following ccmpletion of administrative review.
Public Service Ccmpany of Indiana, Inc. (Marble Hill Nuclear Generating Station, l
Units 1 and 2), ALAB-493, 8 NBC 253, 259 (1978).
t i-l l
l
i 5-l review since the Appeal Board received the monograph only fran an NBC docketing officer after its decision on the merits. Therefore, although f
the Cmmission need not review AIAB-840 on the merits, it should vacate that decision as an unwarranted and unnecessary exercise of authority.
Respectfully subnitted, CONNER & WETIERHAHN, P.C.
m Troy D.
a r, Jr.
Mark J. Wetterhahn August 8, 1986 i
y 9
---,e--
--y
\\
DOCKETED USNRC UNITED STATES OF AMERICA 16 AU311 P3 37 NUCLEAR REGULATORY COMMISSION OFFICE 0r SEcr.:pvicr~
7Any In the Matter of
)
00CKETING A SE
)
BRANCH Philadelphia Electric Company
)
Docket Nos. 50-352
)
50-353 (Limerick Generating Station,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Opposition to Friends of the Earth's Petition for Review of ALAB-840" dated August 8,
1986 in the captioned matter have been served upon the following by deposit in the United States mail this 8th day of August, 1986:
Samuel J. Chilk, Secretary Christine N. Kohl, Chairman Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Lando W.
Zech, Jr.
Chairman U.S. Nuclear Dr. Reginald L. Gotchy Regulatory Atomic Safety and Licensing Commission Washington, Appeal Board D.C.
20555 U.S. Nuclear Regulatory Commission Thomas M.
- Roberts, Washington, D.C.
20555 Commissioner U.S. Nuclear Regulatory Gary J.
Edles Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U.S. Nuclear Regulatory James K. Asselstine, Commission Commissioner Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Frederick M. Bernthal, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C.
20555
\\.
Helen F. Hoyt, Esq.
Atomic Safety and Licensing Chairperson Appeal Panel Atomic Safety and U.S. Nuclear Regulatory Licensing Board U.S.
Commission Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Docketing and Service Section-Office of the Secretary Dr. Richard F. Cole U.S. Nuclear Regulatory Atomic Safety and Commission Licensing Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Benjamin H. Vogler, Esq.
Washington, D.C.
20555 Counsel for NRC Staff Office of the General Dr. Jerry Harbour Counsel Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Angus Love, Esq.
107 East Main Street Atomic Safety.and Licensing Norristown, PA 19401 Board Panel U.S. Nuclear Regulatory Robert J.
Sugarman, Esq.
Commission Sugarman & Hellegers Washington, D.C.
20555 16th Floor, Center Plaza 101 North Broad Street Philadelphia Electric Company Philadelphia, PA 19107 ATTN:
Edward G. Bauer, Jr.
Vice President &
Director, Pennsylvania General Counsel Emergency Management Agency 2301 Market Street Basement, Transportation 1
Philadelphia, PA 19101 and Safety Building Harrisburg, PA 17120 Mr. Frank R.
Romano 61 Forest Avenue Kathryn S. Lewis, Esq. City of Ambler, Pennsylvania 19002 Philadelphia Municipal Services Bldg. 15th and JFK Mr. Robert L. Anthony Blvd. Philadelphia, PA 19107 Friends of the Earth of the Delaware Valley 106 Vernon Lane., Box 186 Moylan, Pennsylvania 19065
i
. 4 Charles W. Elliott, Esq.
Spence W. Perry, Esq.
325 N.
10th Street General Counsel Easton, PA 18042 Federal Emergency Management Agency Maureen Mulligan 500 C Street, S.W.,
Rm. 840 Limerick Ecology Action Washington, DC 20472 P.O. Box 761 762 Queen Street Thomas Gerusky, Director Pottstown, PA 19464 Bureau of Radiation Protection Mark Goodwin, Esq.
Department of Environmental Philadelphia Emergency Resources Management Agency 5th Floor, Fulton Bank Bldg.
P.
O. Box 3321 Third and Locust Streets Harrisburg, PA 17105-3321 Harrisburg, PA 17120 Jay M. Gutierrez, Esq.
James Wiggins U.S. Nuclear Regulatory Senior Resident Inspector Commission U.S. Nuclear Regulatory 631 Park Avenue Commission King of Prussia, PA 19406 P. O. Box 47 Sanatoga, PA 19464 Timothy R.S.
Campbell Director Mr. Ralph Hippert Department of Emergency Pennsylvania Emergency Services Management Agency 14 East Biddle Street B151 - Transportation West Chester, PA 19380 Safecy Building Harrisburg, PA 17120 Theodore G. Otto, Esq.
Department of Corrections Office of Chief Counsel P.O. Box 598 Lisburn Road Camp Hill, PA 17011 1*
Nils N.
Nichols s