ML20207E241
| ML20207E241 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 07/15/1986 |
| From: | Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#386-019, CON-#386-19 OL, NUDOCS 8607220281 | |
| Download: ML20207E241 (11) | |
Text
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ED July 15,1986, g @860 UNITED STATES OF AMERICA 07-00Cff[7h5 SJctyj7,
NUCLEAR REGULATORY COMMISSION ik~ llld fQ V!cy-BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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PlilLADELPHIA ELECTRIC COMPANY
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Docket Nos. 50-350 /i j
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50-353 U L (Limerick Generating Station,
)
Units 1 and 2)
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RESPONSE OF THE NkC STAFF IN OPPOSITION TO ANTl!ONY/ FOE MOTION TO REOPEN THE RECORD ON OFFSITE EMERGENCY PLANNING I. INTRODUCTION On June 25, 1006 hobert L.
Anthony on behalf of himself and Friends of the Earth in the Delaware Valley (Anthony / FOE) filed a motion II seeking to reope'n the with the Commission and the Appeal Board record on offsite emergency planning and for sanctions and disqualifica-i tion of the Licensee's legal counsel, Robert M. Rader, Esq., and the firm of Conner & Wetterhahn.
For the reasons set forth below, the NRC staff (Staff) opI,cses the Anthony / FOE motion.
1/
Although the Appeal Board in ALAD-636 reviewed the bulk of the issues involving the adequacy of the offsite emergency plans for Limerick, it has retained jurisdiction over this matter because it has remanded an issue to the Licensing Dourd for further consideration.
See, Philadelphia Electric Company (Limerick Generating Station,
Uiiits 1 sad 2), ALAB-836, 23 NRC (May 7, 19EC).
It also has pending the Appeal of the GraterforDnmates of the Fourth Partial Initial Decision (PID).
Therefore, the Staff has filed this response with the Atomic Safety and Licensing Appeal Doard with a copy to the Commission.
See, eg., Louisiana Power & Light Company (Waterford Steam Electric Station, Unit 3),
ALAB-797, f.1 NRC 6 (1985).
8607220281 860715 PDR ADOCK 05000352 p
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II. BACKGROUND The offsite emergency planning hearings in the Limerick proceeding EI were conducted frori November 10, 1984 through January 29, 1985.
On 2. lay 2,1985 the Licensing Board issued its Third Partial Initial Deci-sion (PID) and resolved all of the offsite emergency planning issues in favor of the Licensee, Philadelphia Electric Co. (PECo), E except for those issues raised by the Graterford Inmates. Intervenors Anthony / FOE and Limerick Ecology Action (LEA) appealed the Licensing Board's Third PID and oral argument before the Appeal Board uns held on October 11, 1955.
As previously noted, the Appeal Board issued ALAB-836 on May 7, 1!s8G.
Subsequently, the Licensing Board issued its Fourth PID ruling on E
Issues concerning this issues raised by the Graterford Inmates.
decision are pending before the Appeal Board.
In April 1066, the hashington Legal Foundation published a legal racnograph entitled "Offsite Emergency Planning For Nuclear Power Plants:
1/
The emergency plans for the Graterford prison are the subject of a separate proceeding and are not involved in ALAB-836 and do not appear to be part of the Anthony / FOE petition.
~3/
Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-65-14, 21 NRC 1210 n305).
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Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-85-25, 22 NRC 101 (1985).
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, j 6_/
By A Case of Government G ridlock" by Robert M.
Rader.
memorandum dated June 2, 1986, William L.
Clements, Chief, Docketing and Service Branch, served on the Boards and the parties to the Shoreham, Seabrook and Limerick proceedings a copy of Mr. Rader's arti-
- cle, in the memorandum, Mr. Clements stated that the Office of the Gen-eral Counsel had determined that the article falls within the ex parte provisions of 10 C.F.R. 5 2.780 and therefore copies were being served on the Boards and the parties to those proceedings.
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On June 15, 1986 Anthony / FOE filed its motion requesting the Com-nission, inter alia, to reopen the record on Limerick offsite emergency planning, to impose sactions against the Licensee and the law firm of Conner Ketterhahn and to disqualify Mr. Rader and Conner
& Ketterhahn from future participation in the Limerick proceeding.
Mo-tion ct 4.
III. DISCUSSION A.
The Commission's Standards for Reopening a Record.
The Commission's Regulations were recently amended to codify and refine established NRC case law with respect to the standards for reopen-l l
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Wshington Legal Foundation, Critical Legal Issues, Working Paper Series - No. 4, April 1986.
Staff has been unable to determine the exact date of distribution by the Foundation of Mr. Rader's article or to whom it was originally distributed.
6/
Robert M.
Rader, Esq., is a partner in the Washington, D.C. law firm of Conner & Wetterhahn, P.C.
Mr. Rader has served as Coun-sel for the Licensee in this proceeding on various occasions including the offsite emergency planning issues.
. o ing a record.
51 Fed. Reg.19,535 (June 30,1986). U Specifically, the new regulation (10 C.F.R.
S 2.734(a)(1)-(3)) states in relevant part that:
(a) A motion to reopen a closed record to consider additional evidence will not be granted unless the following criteria are satisfied :
(1) The motion must be timely, except that an excep-tionally grave issue may be considered in the discretion of the presiding officer even if untimely presented.
(2) The motion must address a significant safety or environmental issue.
(5) The motion must demonstrate that a materially dif-ferent result would be or would have been likely had the newly proffered evidence been considered initially.
The Appeal Board has observed that "[alfter a decision has been rendered, a dissatisfied litigant who seeks to persuade us -- or any tri-bunal for that matter -- to reopen a record and reconsider 'because some new circumstances has arisen, some new trend has been observed or some new fact discovered,' has a difficult burden to bear."
Duke Power Co.
(Ct.tawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619, 620 (107G), see also, Kansas Gas and Electric Company (Wolf Creek Generat-ing Station, Unit No.1), ALAB-462, 7 NRC 320, (1978) and 51 Fed. Reg.
19,535, 19,550 (1S86). Further, a motion to reopen based on bare allega-tions cannot succeed; rather, the motion must be supported by "signifi-
~7/
The new regulation did not become effective until after Anthony / FOE filed its motion, however, it should be applied in considering Anthony / FOE's motion.
Potomac Electric Power Company (Douglas Point Nuclear Generating Station,
Units 1 and 2),
ALAB-218, 8 AEC 79, 82-83 (1974); Duke Power Company (Catawba Nuclear Sta-tion, Units 1 and 2), ALAB-813, 22 NRC 59, 86 (1985).
Reference to the new regulation in this instance will not change the outcome of this decision because it was designed to codify and refine existing case law.
cant new evidence."
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and E), CL1-81-5,13 NRC 361, 362-63 (1981).
Finally, it should be noted that in ruling on a motion to reopen, the Commission may take into account affidavits and other evidentiary material as if "uling on a motion for summary disposition, and the motion should not be granted "if the undisputed facts establish that the apparently significcnt... issue does not exist, has been resolved, or for some other reason will have no effect upon the outcome of the licensing pro-ecedin g. " Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973).
B.
Anthony /FCE Motion to Reopen.
Application of the foregoing principles to FOE's motion to reopen the record en offsite emergency planning demonstrates that the motion should be denied.
In this regard, the Staff addresses each of the relevant standards seriatim.
1.
Timeliness The memorandum from Mr. Clements forwarding Mr. Rader's article to the Boards and parties is dated June 2, 1986.
Anthony / FOE's motion is dated June 24, 1986 and signed June 25, 1986.
Thus, upon receiving a copy of Mr. Rader's article, Anthony / FOE appears to have proceeded in a timely fashion to prepare and submit its motion.
There-fore, the Staff believes that FOE's motion is timely filed.
2.
Sil;,nificant Safety or Environmental Issue.
The Anthony / FOE motion simply asserts that it meets the re-quirements of the second factor in that it addresses basic safety and en-vironmental issues.
Anthony / FOE asserts that workable emergency plans to protect the health and safety of the public are essential to protect the people and the condition and safety of the environment.
Motion at 2.
The Staff agrees that workable offsite emergency plans are essential ele-ments in the licensing of a nuclear facility.
However, Anthony / FOE has not pointed out how the article prepared by Mr. Rader and distributed to the Commission renders the present offsite emergency plans for Limerick unworkable or how it affects the safety of the facility.
Other than a mere recitation of some of the points contained in Mr. Kader's article, Anthony / FOE has failed to precent any material, probative evidence de-veloped in the article that would warrant the reopening of the emergency plannin;; phase of the Limerick hearing.
Furthermore, Anthony / FOE also fails to establish in any way, the specific relevance of the "new informa-tion" to the sole emergency planning issue it raised at the hearings, i.e.,
the inclusion of additional areas within the EPZ or in the alternative, the imposition of additional traffic controls in the Valley Forge Park area. b Therefore, Anthony / FOE have not satisfied this criterion for reopening a record.
3.
Likelihood of a Different Result The third standard that a movant seeking to reopen a proceed-ing must address is whether a materially different result would be or would have been likely had the newly proffered material been considered I
initially. -9/
As support for this criterion Anthony / FOE again simply 8_/
FOE Contention 1 - LEA Contention 24,
-9/
This standard was clarified by the Commission in issuing the new regulation by stating that, "[t]he inquiry should be, and has been, the likelihood that a different result will be reached if the informa-l tion is considered."
51 Fed. Reg. 19,535, 19,537 (1986).
Emphasis i
in to::t.
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assert that the results of the hearings and appeals would have been dif-ferent without the destructive tactics of PECo through its counsel.
Mo-tion at 2.
There is nothing contained in any of the material relied upon by Anthony / FOE that would remotely support this allegation.
This argu-ment ccinsists of nothing but bald assertiens.
As noted earlier, other than a mere recitation of some of the points contained in Mr. Rader's article, Anthony / FOE has again felled to provide any nexus'between the quoted remarks it sets forth in its motion and how the results of the hearings and appeals would have been different if this information had been considered at the hearing.
Therefore, Anthcny/ FOE have not met this criterion for reopening the record.
C.
Anthony / FOE Motion for Disqualification and Sanctions.
In sddition to requesting that the record be reopened, Anthony / FOE also rcquests that the law firm that has been representing PECo through-out this proceeding be disqualified from further participation.
The only support for this request is the article that was written by Mr. Rader and discussed above.
The disqualification of counsel is a very serious sanc-tion under any circumstance but, under the present situation the request for such action is unwarranted.
Nothing in the article suggests the type 10/
Furthermore, if of conduct warranting disqualification.
disqualification of counsel were apprcpriate for consideration under the 10/ See, e_g., Cincinnati Gas and Electric Company (William H. Zimmer FTu~ clear Power Station, Unit No.1), CL1-E0-36, 16 NRC 1512 (1982);
Consumers Power Company (Midland Plant,
Units 1 and 2),
ALAB-691, 16 NRC 897, 915-919 (1962); the Toledo Edison Company and the Cleveland Electrie Illuminating Company (Davis-Besse Nucle-ar Power Plant, Units 1 and ::), ALAD-332, 3 NRC 785 (ISTC).
present circumstances, the Commission's Rules provide a method for deal-ing with the issue.
10 C.F.R. S 2.713(c).
Anthony / FOE has not explained how Mr. Rader's article published cnd distributed well over a year after the offsite emergency planning hearings were completed and almost a year after the issuance of the third
- PID, could have affected the hearings and the Licensing Board's deliberations.
With regard to the Appeal Board, Anthony / FOE has again failed to explain how Mr. Rader's article, published after the submission of briefs and oral argument and distributed at approximately the same time ALAB-830 was issued, had any impact on the Appeal Boards deliber-ations.
In fact, Anthony / FOE neglect to point out that it prevailed be-fore the Licensing Board on its admitted combined contention LEA 14-Anthony / FOE 1, concerning traffic controls in the vicinity of Larsh Creek /Enton area and the Valley Forge State Park / King of Prussia EI ALAE-E36 at 17, 19, 24-28.
Accordingly, the Anthony / FOE area.
request for sanctions and disqualification should be denied as unwarrant-ed and unsupported by the evidence herein.
A M/ Despite having prevailed on its contention Anthony / FOE still ap-pealed the result.
See Petition of Anthony / FOE for Review of ALAB-836, (May 23, 1986).
See also, NRC Staff Response in Oppo-sition to Anthony / FOE Petition for Review of ALAB-83G.
(June 9, 1980).
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-S-IV. CONCLUSION Althotigh the Anthony / FOE motion is timely, it does not raise an issue of safety significance and consideration of the matters raised would not change the results reached by the Licensing Board in LBP-85-14 and the Appeal Board in ALAB-836.
Accordingly, the motion should be denied.
Respectfully subaitted, C
&nt s W
' njamin H. Vogler Senior Supervisory Trial Attorney Dated at Dethesda, Miryland this 15th day of July, 1980 4
6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFOkE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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PHILisDELPIII/, ELECTRIC COMPANY
)
Docket Nos. 50-352
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50-353 (Limerick Cenerating Station,
)
Units 1 and 2)
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CERTIFICATE OF SERVICE 1 hereby certify that copies of " RESPONSE OF THE NRC STAFF IN OPPOSITION TO ANTHONY / FOE MOTION TO REOPEN TliEE RECORD ON OFFSITE EMERGENCY PLAN-NING" in the above-captioned proceeding have been served on the following by de-posit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 15th day of July, 10SG:
Helen F. Hoyt, Chairperson (2)
Mr. Edward G.
Bauer, Jr.
Administrative Judge Vice President & General Counsel Atomic Safety and Licensing Board Panel Philadelphia Electric Company U.S. Nuclear llegulatory Commission 2301 Market Street Lashington, D.C.
20555*
Philadelphia, PA 19101 Dr. Ilichurd F. Cole Troy B.
- Conner, Jr.,
Esq.
Administrative Judge Mark J. Wetterhahn, Esq.
Atemic Safety and Licensing Board Panel Conner and Wetterhahn U.S. Nuclear Regulntory Commission 1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20555*
D.C.
2000C 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 19404 Mr. Frank R. Romano Kathryn S. Lewis, Esq.
Air and Water Pollution Patrol 1500 !Wunicipal Services Bldg.
61 Forest Avenue 15th and JFK Blvd.
Ambler, PA 19002 Philadelphia, PA 19107 Thomas Gerusky, Director Darry 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 17100
n Spence W. Perry, Esq.
Director Associate General Counsel Pennsylvania Emergency Management Federal Emergency Management Agency Agency Room 840 Dasement, Transportation & Safety 500 C Street, S.W.
Building Washington, D.C.
20472 Harrisburg, PA 171'20 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, FA 19065 Sanatoga, PA 19464 Atomic Safety and Licensing Timothy R. S. Campbell, Director Board Panel Department of Emergency Services U.S. Nuclear Ret;ulatory Commission 14 East Diddle Street Washington, D.C.
20555*
West
- Chester, PA 1935,0 Atomic Safety and Licensing Appeal David Wersan Board Panel (8)
Consumer Advocate U.S. Nuclear Regulatory Commission Office of Attorney General Washington, D.C.
20555*
1415 Strawberry Square Harrisburg, PA 17120 Docketing and Service Section Office of the Secretary Jay Cutlerrez U.S. Nuclear ReCulatory Commission Reglunal Counsel Washington, D.C.
20555*
UElsEC, Region I 631 Park Avenue King of Prussia, PA 19406 Angus R. Love, Esq.
Montgomerj County Legal Aid Theodore G. Otto, III 107 East Nain Street Chief Counsel Norristown, PA 10401 Pennsylvania Dept. of Corrections P. O. Box 5S8 Camp Hill, PA 17611
- FF/A Uegjamin H. Vogler/
Senior Supervisory Trial Attorney 1
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