ML20205M600

Order Denying Rl Anthony Motion for Stay of Effectiveness of 851218 Applications for License Amends Under Which Unit Currently Operating.Served on 860414

ML20205M600
Person / Time
Site:	Limerick
Issue date:	04/11/1986
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP), Atomic Safety and Licensing Board Panel
To:	ANTHONY, R.L.
References
CON-#286-761 0LA-OLA-2, ALAB-835, LA-OLA-2, NUDOCS 8604150324
Download: ML20205M600 (6)

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UNITED STATES OF AMERICA 00CKETED NUCLEAR REGULATORY COMMISSION USNRC ATOMIC SAFETY AND LICENSING APPEAL BOARD T6 APR 14 A10:28 Administrative Judges:

rer - ' -

Thomas S. Moore, Chairman Apfts"s11, 'd 986!

Dr. Reginald L. Gotchy ( ALAB-8 35:) h Howard A. Wilber

) sp.gyEO APR141986 In the Matter of )

)

PHILADELPHIA ELECTRIC COMPANY ) Docket No. 50-352-OLA-1

) (Check Valve)

(Limerick Generating Station, ) Docket No. 50-352-OLA-2 Unit 1) ) (Containment Isolation)

)

MEMORANDUM AND ORDER We have before us the motion of Robert L. Anthony for a stay of the effectiveness of two license amendments under which Unit 1 of the Limerick Generating Station is currently operating. For the reasons set out below, the motion is denied.

On December 18, 1985, the licensee, Philadelphia Electric Company (PECo) applied for two amendments to its operating license for Limerick. Amendment No. 1 sought a one-time-only extension of the interval between surveillance tests of the excess flow check valves in certain instrumentation lines. Such tests normally must be performed at least every 18 months and only when the plant is shut down. Under the requested amendment, the surveillance would be performed during a scheduled shutdown beginning no later than May 26, 1986 -- a date some 96 days 8604150324 DR 860411 ADOCK 05000352 1, PDR V 3

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beyond the originally designated time for the testing. PECo sought the extension to allow continued operation of the plant until the time other more extensive surveillance testing would be performed, and for which the plant already would be shut down.1 Amendment No. 2 sought a similar extension for the testing of primary containment isolation valves.

Notices of opportunity for hearing were published fo!r each amendment in the Federal Register on December 26 and December 30, 1985, respectively. In the notices, the Commission stated that it had made proposed determinations that both amendments involve "no significant hazards." The notices also indicated that the proposed determination would t

become final absent a timely hearing request. As noted above, the amendments have been issued and the plant is currently operating pursuant to that authority.

Mr. Anthony filed an intesvention petition after the deadline for such submissions given in the notices, and then petitioned the Licensing Board for an immediate stay of the operation of the plant, pending Board action on the intervention request. In a prehdaring conference held March 27, 1986, the Licensing Board denied the stay, claiming a s

I 50 Fed. Reg. 52,874 (1985).

50 Fed. Reg. 53,226, 53,235 (1985).

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3 lack of jurisdictien.3 Thereupon, on April 1, Mr. Anthony filed a meager one-page motion for a stay with us. On April 2, he sought to supplement his motion with his earlier filed March 24 motion to the Licensing Board.4 Although Mr.

Anthony's procedures are a bit unorthodox, we will consider both filings together.

Because the instant motion is easily resolved on the merits, we are denying the application for a stay without 3

Tr. 8-11.

4 In a decision dated April 4, 1986, the Licensing Board designated to rule on the intervention petitions of Mr. Anthony and a second petitioner terminated the intervention proceeding. It ruled that Mr. Anthony's petition on Amendment No. 1, which the Board had conditionally granted in LBP-86-6A, 23 NRC (1986), should not have been admitted in the first place and that Mr.

Anthony had failed to proffer any admissible contentions.

As to Amendment Fo. 2, the Licensing Board denied Mr.

Anthony's petition for being untimely. The second intervention petition on Amendment No. I was denied because it failed to raise any issue within the scope of the proceeding. See LBP-86-9, 23 NRC , (1986). In that same decision, the Licensing Board also reaffirmed its oral ruling denying Mr. Anthony's motion for a stay. Id. at __.

We note that throughout his involvement with the Limerick proceedings Mr. Anthony has often failed to prepare his filings in accordance with the Commission's Rules of Practice, 10 C.F.R. Part 2. He has been warned about this on numerous occasions. See, e.g., LBP-86-6A, 23 NRC at __

n.3; ALAB-778, 20 NRC 42, 46 n.4 (1984); Appeal Board Operating License Proceeding Order of Aug. 5, 1985 (unpublished) at 2-3. In the future, should his filings with us related to these license amendments fail to conform to the regulations, they either will not be docketed (and no leave to refile will be granted), or will be summarily denied for failure to conform to the rules.

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4 awaiting replies from the licensee and the NRC staff. Thus, 4

we do not address the potentially significant question raised by the Licensing Board concerning its jurisdiction to stay these license amendments.6 In his motion, Mr. Anthony states that he seeks a stay from us pursuant to 10 C.P.R. S 2.788. Whether requesting a stay under that section or one under our broader authority as the Commission's delegate under 10 C.F.R. S 2.785, a movant must show that it is entitled to this equitable relief based on an analysis of four factors:

(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; i

(3) Whether the granting of a stay would harm other parties; and (4) Where the public interest lies.

As we have stated before, the second factor, irreparable injury, is often the most important in 6

Although we do not reach this issue, we question the Licensing Board's conclusion regarding its jurisdiction because its purported reasoning is so cryptic.

See Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 272 (1974), reh'g denied, ALAB-227, 8 AEC 416 (1974), rev'd on other grounds, Porter County Chapter of the Izaak Walton League v. AEC, 515 F.2d 513 (7th Cir. 1975), rev'd and remanded, 423 U.S. 12 (1975).

5 determining if a stay is warranted.8 Mr. Anthony's

" analysis" of this element, however, amounts to nothing more than his own ipse dixit that "[s]kipping the valve tests makes [the] probability [of a nuclear accident at Limerick]

imminent." He offers no foundation or substantiation for his belief. Such argument is manifestly insufficient to support the issuance of a stay. As the Commission has observed, "[i]t is well-established that speculation about a nuclear accident does not, as a matter of law, constitute the imminent, irreparable injury required for [a stay] . "10 Further, we have recently concluded that "[a] party moving for a stay is required to demonstrate that the injury claimed is 'both certain and great.'"11 Thus, it is apparent that Mr. Anthony has failed to show that he will suffer irreparable harm if not granted a stay. Similarly, he offers no concrete indication of why the staff's "no O

Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-789, 20 NRC 1443, 1446 (1984).

9 Motion by R.L. Anthony / FOE to ASLB for an Immediate Stay on the Operation of Limerick #1 Reactor Pending the Outcome of Hearings on Amendment #1 & 2 (March 24, 1986) at 3.

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-84-5, 19 NRC 953, 964 (1984).

11 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 747 (1985).

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significant hazards" determination is erroneous, and thus fails to show a likelihood of success on the merits.

Additionally, Mr. Anthony offers little more on the third and fourth stay criteria (harm to other parties resulting from a grant of stay relief and public interest considerations) that would provide a basis for a decision in his favor. The motion is, therefore, denied.

It is so ORDERED.

FOR THE APPEAL BOARD CIL 4 O .. '-w\

C. gan Shoemaker Secretary to the Appeal Board