ML20207C003
| ML20207C003 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 12/22/1986 |
| From: | Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1986 OL, NUDOCS 8612300008 | |
| Download: ML20207C003 (8) | |
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00fMETED December 12, NW UNITED ETATES OF AMERICA
+86 0CC 23 P3 :05 NUCLEAR REGULATORY COMMI88 ION DEFORE Tl!E ATOMIC SAFETY AND LICENSING BOARD' in the Matter of
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PH!f.ADrLPHIA ELECTRIC COMPANY )
Docket Nos. 50-352 - 6 /-
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50-353 (f.imerick Generating 8tation.
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Units 1 and 2)
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NHC UTAFF RFFPONSE TO DEL-At/ARE'S SifPPLEMENT TO PETITION TO REOPE!! AND ADMIT HE1'1 CONTENTION 1.
INTRODUCTION On Feptember 23, 1986, Del-Aware Unlimited filed before the Atomic Safety and Licensing floard (Licensing Roard) a " Motion To Reopen Pro-ceedinra For Further Consideration Of Environmental Impacts Of Proposed flut Not Yet Incurred Conntruction" (" Motion to Roopen").
In its motion.
Del-Aware stated that it requented reopening for further conalderation of impacts of the operation of the tiradshaw Heservoir, which is part of the proposed Supplemental Cooling Water System of the Limerick facility.
Its motion wns based on recent chargon to the propoint to construct the ren-crvoir, specifically the propoest to ret'uce the capacity from 70 million gallona to 25 million gallona.
On November 14,19f 6. the Licensing floard diamirned the motion for lack of jurisdiction over tic matter. M 1/
Pfemorandum and Order (Ruling On Dol-Awnrc's Motion To Reopen
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Proceedinga For Further Conalderation Of Environmental Impacta Of Proposed Hut Hot Yet Incurred Construction),
(unpublishod),
November 14, 1986.
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On Deeember 1,1984 Del-Aware filed a " Supplement To Petition To Roopen and Admit New Contention" (" Supplemental Motion"). I la its supplemental motion, Del-Aware seeks to expand the new contention prof-fored in its motion to reopen and to add a new unspeelfled contention or the basis of a number of documents on which it reHee fbr support.
Por the reasons discussed below, the Staff opposes Del-Aware's supplemental motion and urges the Nosed to dismiss it. Il
!!. BACK0 rot 1ND The history of Del-Aware's participation in the operating hoensing proceeding for the Limerick units in recited in the Lloonsine Posed's Mem-e*endum and Order of November 14, 1986, and is repeated here only to the extent necessary to provide context for the instant supplemental 2/
Del-Aware'n supplemental motion makes no mention of the Licensing Moerd's dismissal of its protion to reopen.
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The Licensee, philadelphia flectric Company, filed a response to
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Del-Aware's supplemental motion on December 18, 1984 with the Com-mission.
Although the Staff arrees with the Licensee that Del-Aware's supplemental motion does not clearly identify from which of the Commission's adjudicatory boards it seeks relief, the f taff believes that the styling of the motion as a supplement to a motion filed with the Licensing beard Indicates that it van Del-Aware's in-tention to file with the Licensin r Noard.
Since the Licensing Board has the authority in the firnt Instance to rule on the sco jurisdiction, Duke power Company (perkins Nuclear Station.pe of its U nits 1,
7 and 3), ALAD-591,11 NMC 741, 742 (1980), the Staff believen that here, as in perkins, the Licenalng floard should have the first op-portunity to~s fdr6s its jurisdiction over a motion that apparently seeks relief from the Licensing Board.
18ecause the Licensee filed its responso with the Commission with coplea to the Appeal and the Lleensing Board, the Staff in nimilarly providing courtesy copics of its response to the Commission and the Appeal Board.
motion.
In.its motion to reopen. Del-Aware sought reopening to litigate a contention it had previounty withdrawn pursuant to a stipulation among the parties to the phane of the proceeding that resulted in the First par-tlal Initial Decision (pID) b and two other contentions proposed by Del-Awaro and donfed by the Licensing Board, in its first plD, the Licensing floard found that, contrary to Dol-Awaro's contention, the operation of tho Supplemental Cooling Water Hyateri (FCWS) on the Delaware p.tver at point pleasant, pennsylvania would not have a significant advorac offect on the fish spocles of concern and that notao impacts from the pumping station could and should be miti-gated if, after afnrt-up of the HCWS, noine proved to be excesalvo.
On Dol-Aware's appent, the Appent 11ond auntained the Licenalng Board's findinga regarding the contentiona that woro litigated. 5,/
llowever, it hold that the Licensing Donrd had erred in rejecting two of Dol-Aware's contentiona concerning ndvorno offecta of the proposed SCF8 and roversed and remanded on those facuoa, b The Appeal lloard directed the Licensing * !! card to afford Dolnwnro an opportunity to filo contentions on the romandert lasuoa.
In an unpubilahort order of November 8,1984, the Licensing 11oard rejected Del-Awaro's proposed contentions on the romanded issues for lack of apoef ficity and bania.
On Del-Aware's appent, the Appont ponrd af-4/
philndolphia rloctric Company (Limorick Generating litetton, Ifnita 1
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and 2),1,111'-83-11,17 NitC 413 (1983).
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I'hllndelphin I-:lectric Company (1,lmorick Cenornting Station Unita 1
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and 2), ALAll-785, 20 NitC 848 at 87F-81, 885 (1084).
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Id., 20 NitC at 880-70.
. 3 firmed the. Licensing Board's action. U On February 22, 1985, the Commission declined review of ALAB-785 and on May 20, 1985, it declined revicu of ALAB-804.
In an order of November 14, 1986, the Licensing Board dismissed Del-Aware's September 23, 1986 motion to reopen, holding that when the Commission declined review of ALAB-785 and ALAB-804, those decisions became final agency action.
Having found that it it.cked the jurisdiction to consider Del-Aware's motion, the Licensing Board did not consider in its order of November 14, 1986, whether Del-Aware's motion satisited the requirements of 10 C.F.R. 5 2.734 for reopening the record.
III. DISCUSSION Del-Aware styles its filing of December 1,1986, a " supplement." As the Commission's rules do not provide for " supplements," the Staff con-siders it a separate motion.
However, no matter how it is considered, it is clear that the Licensing Board lacks the jurisdiction to consider the filing and must, therefore, dismiss it.
The same reasoning that compelled the Licensing Board's decision dismissing the earlier motion, which the instant motion purports to supplement, compels a similar action here.
At the time that the Licensing Board dismissed Del-Aware's earlier motion to l
reopen, there were no matters pending before the Commission's adjudica-l l
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Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-804, 21 NRC 587 (1985).
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tory Board,s involving the Supplemental Cooling Water System,
Del-Aware's motion and supplemental motion relate to the First PID, which concerned the Supplemental Cooling Water System.
In its motion to re-open, Del-Aware expressed a wish to litigate erosive effects of the operation of the Bradshaw Reservoir on the East Branch Perkfomen Creek and the availability of alternatives to the SCWS as proposed.
In its supplement, Del-Aware raises questions about the Bradshaw Reservoir, the Chernobyl accident,
Yoh security systems and the economic effects of I.imerick Unit 2 and " requests the Board to admit a new late-filed contention based on the studies eventuating from and confirming the concerns arising from the Chernobyl event, and the indictment and retention of Yoh [the firm providing security services under contract at Limerick], and directing the cancellation of Unit II, by denying an operating permit."
Del-Aware does not address the criteria for reopening found in 10 C.F.R. 6 2.734 nor does it address the criteria of 10 C.F.R.
I 2.714(a)(1) applicable to late-filed contentions; indeed, Del-Aware does not even state the new contention it seeks to have admitted.
There is nothing in Del-Aware's supplemental motion, whether it ir j
considered on its own or even if considered as incorporating the pre-viously filed motion to reopen, that would change the result reached in the Licensing Board's Order of November 14, 1986.
The decisions that Del-Aware seeks to reopen became final when the Commission declined to 8)
Two issues now pending before the Appeal Board concerning remand-ed emergency planning issues are not relevant to the instant motion.
. 1 take review, of ALAB-785 and ALAB-804; the Licensing Board, therefore, Iceks the jurisdiction to reopen them.
IV.
CONCLUSION For the reasons discussed, the Licensing Board should dismiss Del-Aware's supplemental motion.
Respectfully submitted,
, w \\. --\\. A
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Ann P. Hodgdon Counsel for NRC Staff Dated at Dethesda, Pfaryland this ??nd day of December,1986
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i CXMEin
' itior UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION N DEC 23 P3 :05 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD CFFlO DOCM m L n.;
In the Matter of
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FRANL"
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PHILADELPIIIA ELECTRIC COMPANY )
Docket Nos. 50-352
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50-353 (Limerick Generating Station,
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Units 1 and 2)
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CERTIFICATE OF SERVICR 1 hereby certify that copies of "NRC STAFF RESPONSE TO DEL-AWARE'S SUPPLEMENT TO PETITION TO REOPEN AND ADMIT NEW CONTENTION" in the above-captioned proceeding have been served on the following by deposit in the. United States mail, first class, or as indicated by an aster-isk through deposit in the Nuclear Regulatory Commission's internal mail system, this 22nd day of December,1986:
IIelen F. Hoyt, Chairperson (2)
Mr.
Edward G.
- Bauer, Jr.
Administrative Judge Vice President & General Counsel t
Atomic Safety and Licensing Board Panel Philadelphia Electric Company U.S. Nuclear Regulatory Commission 2301 Market Street Washington, D.C.
20555*
Philadelphia, PA 19101 Dr. Richard F. Cole Troy B.
- Conner, Jr.,
Esq.
Administrative Judge Mark J. Wetterhahn, Esq.
Atomic Safety and Licensing Board Panel Conner and Wetterhahn U.S. Nuclear Regulatory Commission 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20555*
Washington, D.C.
20006 Dr. Jerry Harbour Ms. Phyllis
- Zitzer, President Administrative Judge Ms. Maureen Mulligan Atomic Safety and Licensing Board Panel Limerick Ecology Action U.S. Nuclear Regulatory Commission 762 Queen Street Washington, D.C.
20555*
Pottstown, PA 19464 Mr. Frank R. Romano Charles E.
Rainey,
Jr.,
Esq.
Air and Water Pollution Patrol Chief Assistant City Solicitor 61 Forest Avenue Law Department, City of Philadelphia Ambler, PA 19002 One Reading Center 1101 Market Street, 5th Floor Philadelphia, PA 19107
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. j Thomas Gerusky, Director Barry M. Hartman Bureau of Radiation Protection Governor's Energy Council Dept. of Environmental Resources P.O. Box 8010 5th Floor, Fulton Bank Building 300 N. 2nd Street Third and Locust Streets Harrisburg, PA 17105 Harrisburg, PA 17120 Director Spence W. Perry, Esq.
Pennsylvania Emergency Management General Counsel Agency Federal Emergency Management Agency Basement, Transportation & Safety Room 840 Building 500 C Street, S.W.
Harrisburg, PA 17120 Washington, D.C.
20472 Robert L. Anthony Gene Kelly Friends of the Earth of the Senior Resident Inspector Delaware Valley U.S. Nuclear Regulatory Commission 103 Vernon Lane, Box 186 P.O. Box 47 Moylan, PA 19065 Sanatoga, PA 19464 Atomic Safety and Licensing Timothy R. S. Campbell, Director Board Panel Department of Emergency Services U.S. Nuclear Regulatory Commission 14 East Biddle Street Washington, D.C.
20555*
West Chester, PA 19380 Davis Wersan Atomic Safety and Licensing Appeal Consumer Advocate Board Panel Office of Attorney General U.S. Nuclear Regulatory Commission 1425 Strawberry Square Washington, D.C.
20555*
Harrisburg, PA 17120 Docketing and Service Section Jay Gutierrez Office of the Secretary Regional Counsel U.S. Nuclear Regulatory Commission USNRC, Region I Washington, D.C.
20555*
631 Park Avenue King of Prussia, PA 19406 Angus R. Love, Esq.
Montgomery County Legal Aid Theodore G. Otto, III 107 East Main Street Chief Counsel Norristown, PA 19401 Pennsylvania Dept. of Corrections P. O. Box 598 Camp Hill, PA 17011 UM D =-
Ann P. Hodgdon Counsel for NRC Staff
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