ML20214K004

Response Opposing Anthony/Friends of the Earth 860729 Petition for Review of ALAB-840 Re Denial of Request to Reopen Record on Offsite Emergency Planning.W/Certificate of Svc

ML20214K004
Person / Time
Site:	Limerick
Issue date:	08/13/1986
From:	Vogler B NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#386-322, CON-*386-322 ALAB-840, OL, NUDOCS 8608150267
Download: ML20214K004 (11)

Text

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00CNETED USNRC UNITED STATES OF AMERICA .. .

NUCLEAR REGULATORY COMMISSIONE AW 14 A10:15 BEFORE THE COffMISSION ,

DCCKi.i.f; , > , g,

, In the Matter of )

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PIIILADELPIIIA ELECTRIC COMPAliY ) Docket Nos. 50-352 r)

) 50-353 '

(Limerick Generating Station, )

Units 1 and 2) )

RESPONSE OF TI!E IIRC STAFF IN OPPOSITION TO ANTHONY / FOE PLTITIOli FOR REVIEW OF ALAB-840 i

o Benjamin II. Vogler l Senior Supervisory Trial Attorney l

l August 13, 1986 k

B600150267 060013 PDR ADOCK 05000352 G PDR t

00CKETED USNRC UNITED STATES OF A?.! ERICA 55 A!E 14 A10:15

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NUCLEAR REGULATORY COMMISSION ---

BEFORE THE COMMISSION CE fhggT f hI,0;"[

qt-t In the F. fatter of ) ~

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PIIILADELPIIIA ELECTRIC COMPANY ) Docket Nos. 50-352

) 50-353 (Liracrick Generating Station, )

Units 1 and 2) )

RESPONSE OF TIIE liRC STAFF IN OPPOSITION TO ANTHONY / FOE PETITIOli FOR REVIEW OF ALAB-840 l

Benjwnin II. VogIer

, Senior Supervisory Trial Attorney l August 13, 1986

00CKETED USNRC

'86 A0514 A10:15 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF SEWTc 00CKE.TI.90 SP V BEFORE TIIE COMMISSION N In the Matter of )

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PIIILADELPilIA ELECTRIC COMPANY ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) -

)

RESPONSE OF TILE NRC STAFF IN OPPOSITION TO ANTIIONY/ FOE PETITION FOR REVIEW OF ALAB-840 I. INTRODUCTION On July 29, 1986, Robert L. Anthony on behalf of himself and Friends of the Earth in the Delaware Valley (collectively FOE) filed a "Po-tition for Review by the Commission of ALAB-840 .... (Petition),

wherein the Appeal Board denied FOE's request to reopen the record on offsite emergency planning and for disqualification and sanctions against Licensee's legal counsel.1 For the reasons set forth below, the NRC staff (Staff) opposes the FOE petition and urges that it be denied.

II. BACKGROUND

- The offsite emergency planning hearings in the Limerick proceeding were conducted from November 19, 1984 through January 29, 1985. On Mr.y 2, 1985 the Licensing Board issued its Third Partial Initial Decision (PID) and resolved all of the offsite emergency planning issues in favor

-1/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-840, (July 18,1986).

I of the Licensee, Philadelphia Electric Co. (PECo) , 2/ except for those issues raised by the Graterford Inmates. -

Intervenors FOE and Limerick Ecology Action (LEA) appealed the Licensing Board's Third PID and on May 7, 1986, the Appeal Board issued ALAB-836 in which it re-l solved the offsite emergency planning issues on appeal in favor of the )

Licensee with the exception of a remand for further action on the limited issue of school bus driver availability in two school districts. O Subsequently, the Licensing Board issued its Fourth PID ruling on issues raised by the Graterford Innates. 5_/ An appeal of this decision is currently pending before the Appeal Board.

In April 1986, the Washington Legal Foundation published a legal monograph entitled "Offsite Emergency Planning For Nuclear Power Plants:

A Case of Government Gridlock" 6_/ by Robert M. Rader. U By memorandum dated June 2, 1986, William L. Clements, Chief, Docketing and Service Branch, served on the Boards and the parties to the l 2/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LDP-85-14, 21 NRC 1210 (1985).

3/ The emergency plans for the Graterford prison are the subject of a separate proceeding and do not appear to be part of the Anthony / FOE petition.

j 4/ Philadelphia Electric Company (Limerick Generating Stations, Units 1 l . and 2), ALAD-836, 23 NRC (May 7,1986).

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-S/

Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-85-25, 22 F"C 101 (1985).

l 6_/ Washington Legal Foundation, Critical Legal Issues, Working Paper Series - No. 4, April 1986.

7/ 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.

Shoreham, Seabrook and Limerick proceedings a copy of Mr. Rader's article. 8,/ In the memorandum, Bir. Clements stated that the Office of the General Counsel had determined that the article falls within the ex parte provisions of 10 C.F.R. I 2.780 and, pursuant to the Commission's rules, copics were being served on the Boards and the parties to those proceedings.

On June 25, 1986 FOE filed a motion requesting the Appeal Board and the Commission to, inter alla, reopen the record on Limerick offsite emergency planning, to impose sactions against the Licensee and the law firm of Conner & Wetterhahn and to disqualify filr. Rader and Conner &

Uetterhahn from future perticipation in the Limerick proceeding. The Appeal Board on July 18,1980 in ALAB-840 denied FOE's motion. The Appeal Board stated that it need not determine whether the Rader article was, in fact, an ex parte communication as the Commission's explicit rem-edy, found in 10 C.F.R. I 2.780(b), i.e., the placement of the written e3 parte communication in the public document room and service by the Secretary on the " communicator" and all the parties involved in the pro-ceeding, had already been accomplished by Mr. Clements on June 2. Slip op. at 7-8.

The Appeal Board found that FOE failed to support, in any way, its

. generalized allegations of improper or unethical conduct by Licensee's counsel and that the submission of the Rader article, although an inten-tional act, hardly provides a basis for a finding of " contemptuous con-

-8/ The 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.

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duct . " g . at 10. The Appeal Board found that FOE's generrJized complaints also failed to establish grounds for reopening the record on offsite emergency planning. M. The Appeal Board noted that FOE had not provided a single example of how its decisionmaking process might have been compromised by the Rader article, noting that its decision in ALAB-836 was rendered before the Appeal Board was aware of the Rader I article. M . at 11-12. Based upon the above, the Appeal Board denied the FOE motion to reopen end for disqualification of Licensee's counsel.

l "T. DISCUSSION Although the Commission has the discretion to review any decision of its subordinate board's, a petition for Commission revieu "will not ordi-narily be granted" unless important safety , environmental, procedural, common defense , antitrust or public policy issues are implicated.

10 C.F.R. f 2.786(b)(4) . The Staff has considered the issues raised by FOE and believes that, when measured against the standards set forth in 10 C.F.R. I 2.786, they do not warrant the exercise of the Commission's discretion to grant review.

In its present petition, FOE asserts that the Appeal Board erred in denying its motion for sanctions and disqualification of Licensee's counsel and in rejecting its motion to reopen the record based on the ex parte submission of Mr. Rader. The Staff will address these two issues in turn below.

A. Motion for Sanctions / Disqualifications FO3 argues that Mr. Rader and the law firm of Conner a Wetterhahn, that has been representing PECo throughout this proceeding, should be disqualified from further participation in this proceeding. The

only support for this argument is the article that was written by Mr. Rader and discussed above. In its petition to the Commission FOE asserts that the Rader article was furnished to the Appeal Board before its decision of May 8,1986 (ALAB-830). This statement is clearly incon-sistent with the Appeal Board's statement in ALAB-840 where it noted:

Anthony /FOR have not provided a single example of how ALAB-836 and our decisionmaking process were or might have been compromised by the WLF Working Paper. Nor could they: our decision was rendered on May 7,1986, before any member of this Board saw or was aware of the WLF Working Paper. See supra note 1. Further evidence belying any suggestion of improper influence on our decision or benefit to PECo is found in that portion of ALAB-836 reversing and remanding the issue of school bus driver availability; the WLF Worldng Paper would eliminate this " human response" issue entirely from consideration in NRC proceedings. Compare ALAB-836, 23 NRC at 515-20 (slip opinion at 62-73), with WLF Working Paper at 52-55. ALAB-840, slip op, at 11-12 (emphasis added).

FOE's suggestion that fir. Rader's views on offsite emergency plan-ning improperly influenced the Licensing and Appeal Boards also misses the riark. In commenting on this aspect of FOE's petition the Appeal Board noted:

Anthony / FOE also imply that -- apart from the actual submis-sion of the WLF Working Paper to the Commission -- there is some independent impropriety in the fact that PECo's counsel, Mr. Rader, has expressed views critical of NRC regulation.

But this is no more improper (or surprising) than is the fact that intervenor public interest groups -- such as Friends of the Earth -- frequently express equally critical views of the

. agency in their publications. ALAB-840, slip op. at 10, fn.9.

. With regard to the Licensing Board, FOE has not explained how Mr. Rader's article, published and distributed well over a year after the emergency planning hearings were completed and almost a year after the issuance of the Third PID, could have affected the hearings and the Li-censing Board's deliberations. There simply is no evidence to support

FOE's claims of impropriety and undue influence and the Staff submits that the Appeal Board was correct in denying FOE's request for sanctions

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and disqualification of Licensee's counsel. In addition, FOE in its petition )

has not raised any important question of law, fact or policy that would warrant Commission review of its petition.

l D. Motion to Reopen Although FOE's petition to the Commission requests the reopening of )

the record on offsite emergency plans, it fails, in its one page petition, to address the standards for reopening a record. El The Appeal Board declined to consider FOE's motion to reopen stating that:

The rationale for our c'ccision here makes it unnecessary for us to decide (1) whether the usual criteria for reopening a record also apply wher; taint on the decisionmaking process (as opposed to a deficiency or discrepancy in the evidentiary record) is alleged, and (2) if so, whether those criteria have been satisfied. See 10 C.F.R. I 2.734, 51 Fed. Reg.19,535, 19,539 (1986). ALAB-840, slip op. at 12, fn.10.

As peinted out above, FOE does not address any of the standards for reopening a record, and has not made any effort to show that the 9/ 10 C.F.R. I 2.734(a)(1)-(3) states in relevant part that:

(a) A motion to reopen a closed record to consider ad-ditional evidence will not be granted unless the following criteria are satisfied:

I .

(1) The motion must be timely, except that an exceptionally 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 environrr. ental issue.

(3) The motion must demonstrate that a materially different result would be or would have been likely (FOOTNOTE CONTINUED ON NEXT PAGE) l l

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Appeal Board's conclusions with respect to the issue of reopening the record are erroneous. 10 C.F.R. 5 2.786(b)(iii). Accordingly, FOE has not raised any issue warranting Commission review of the Appeal Board's

- findings of this aspect of its petition. N IV. CONCLUSION For the reasons discussed above, the Commission should deny FOE's petition for review.

j Respectfully submitted, Wey0 nk .

a7 2

Denjamin II. Vogler Senior Supervisory Trial Attorney Dated at Bethesda, Maryland this 13th day of August,1986 (FOOTMOTE CONTINUED FROM PREVIOUS PAGE) had the newly proffered evidence been considered initially.

-10/ In a previous Limericle opinion, the Commission noted that FOE had failed to address the criteria for a stay as set forth in the Commis-l sion's rules and therefore, summary denial of FOE's request was appropriate. Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), CLI-86-06, slip op, at 6 (March 21,1986).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMP 1ISSION BEFORE TIIE COMMISSION In the Matter of )

)

PIIILADELPIIIA ELECTRIC COMPANY ) Docket Nos. 50-35::

) 50-353 (Limerick Cenerating Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copics of " RESPONSE OF THE NRC STAFF IN OPPO-SITION TO ANTHONY / FOE PETITION FOR REVIEt/ OF ALAB-840" 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 asterisk through deposit in the Nuclear Regulatory Commission's internal mail sys-tem, this 13th day of August,1986:

Samuel J. Chilk Angus R. Love. Esq.

Office of the Secretary Montgomery County Legal Aid U.S. Nuclear Regulatory Commission 107 East Main Street Washington, D.C. 20555* Norristown, PA 19401 Helen F. IIoyt, 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 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.

, tlashington, D.C. 20555* Washington, D.C. 20006 l

Dr. Jerry liarbour Ms. Phyllis Zitzer, President

- Administrative Judge Ms. Maureen Mulligan Atomic Safety and Licensing Board Panel Limerick Ecology Action U.S. Nuclear Regulatory Comm.'ssion 762 Queen Street Washington, D.C. 20555* Pottstown, PA 19464 fir. Frank R. Romano Kathryn S. Lewis, Esq.

Air and Water Pollution Patrol 1500 Municipal Services Bldg.

61 Forest Avenue 15th and JFK Blvd.

Ambler, PA 19002 Philadelphia, PA 19107

1 Thomas Gerusky, Director Barry M. Hartman Bureau of Radiation Protection Governor's Energy Council 1 Dept. of Environmental Resources P.O. Box 8010 '

Sth Floor, Fulton Bank Building 300 N. 2nd Street Third and Locust Streets Harrisburg, PA 17105 Harrisburg, PA 17120

- Spence W. Perry, Esq.

Director General Counsel Pennsylvania Emergency Management Federal Emergency Management Agency Agency Room 840 Besement, Transportation & Safety 500 C Street, S.W.

Building Washington, D.C. 20472 Harrinburg, PA 17120 l

P.obert 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 i Moylan, PA 19065 Sanatoga, PA 19464 I 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 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*

1425 Strawberry Square Ilarrisburg, PA 17120 Docketing and Service Section Office of the Secretary Jay Gutierrez U.S. Nuclear Regulatory Commission Regional Counsel Washington, D.C. 20555*

USNRC, Region I 631 Park Avenue King of Prussia, PA 1940G Theodore G. Otto, III

. Chief Counsel Pennsylvania Dept. of Corrections P. O. Box 508 l

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- Camp Hill, PA 17011 Benjamin H. Vogler Senior Supervisory Trial Attorney