ML20215E669
| ML20215E669 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 12/16/1986 |
| From: | Rader R CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#486-1933 OL, NUDOCS 8612230064 | |
| Download: ML20215E669 (10) | |
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USNPC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l'86 DEC 17 P2 :40 Before the Commission
. GFFiCF rJ It u in In the Matter of
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Philadelphia Electric Company
)~ Docket Nos. 50-352 - 04
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50-353-64 (Limerick Generating Station,-
)
Units 1 and 2)
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-LICENSEE'S RESPONSE TO DEL-AWARE UNLIMITED, INC.'S SUPPLEMENT TO REOPEN AND ADMIT NEW CONTENTION On September 23,
- 1986, Del-Aware Unlimited, Inc.
[
(" Del-Aware") filed a motion to reopen the operating license
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proceeding for the Limerick Generating Station (" Limerick")
to litigate a new contention as to the impacts of operating the Bradshaw Reservoir.M In a Memorandum and Order issued November 14, 1986, the presiding Atomic Safety and Licensing Board
(" Licensing Board") dismissed the petition for lack of jurisdiction.2_/
No appeal was taken from that order and the time for appeal has expired.
-1/
The Bradshaw Reservoir is a component of the Point Pleasant diversion project which will provide supplementary cooling water for Limerick from the Delaware River by means of an intake and pump station on the
- Delaware, the reservoir and associated transmission mains.
See generally Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-83-11, 17 NRC 413 (1983), aff'd in part, ALAB-785, 20 NRC 848 (1984).
2/
Prior to entry of its Memorandum and Order of November (Footnote Continued) 8612230064 861216 PDR ADOCK 05000352 6d3 Q
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On December 1, 1986, Del-Aware filed a document enti-tied " Supplement to Petition to Reopen and Admit New Con-tention."$!
In this document, Del-Aware does not even acknowledge that the Licensing Board dismissed its petition to reopen in the Memorandum and Order of November 14, 1986, much less explain the significance of its supplement in that context.
The purpose of this newly filed document is unclear at best.
In the caption, it is not addressed to any particular tribunal or officer within the Commission.
To confuse matters further, the caption in the supplement's attached certificate of service refers to the Atomic Safety and Licensing Appeal Board.
Further, the document refers to "the original petition" filed on September 9,
1986, whereas the petition dismissed by the Licensing Board was filed on September 23, 1986.
The (Footnote Continued) 14, 1986 dismissing Del-Aware's petition to reopen, the Licensing Board had completed all matters pending before it in the operating license proceeding.
The final contested matter before the Licensing Board was resolved in favor of the Licensee in its " Supplement to the Fourth Partial Initial Decision Relatina to the Remanded Contention Regarding Manpower Mobilization at the State Correctional Institution at Graterford,"
issued November 10, 1986.
3/
As explained below, it is unclear to whom Del-Aware's pleading is directed.
Accordingly, PECO is also serving the Atomic Safety and Licensing Appeal Board, the Atomic Safety and Licensing Board, their individual members, and the service list with this response.
See Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), " Order" (November 18, 1986).
e-T document also includes a parenthetical reference in the caption to 10 C.F.R.
S 2.206, but Licensee's counsel is unaware of any petition for relief under that provision which has been recently filed by Del-Aware or which is pending at this time.
l l
Licensee also notes that its copy of the supplement as well as the certificate of service were unsigned.
- Further, c
service of the document, even if in accordance with the unsigned certificate, did not include all the parties to the proceeding.
Licensee believes that Del-Aware's significant noncompliance with the Commission's Rules of Practice is unacceptable and particularly inexcusable inasmuch as Del-Aware has been represented by counsel since the initiation of this proceeding in 1981.
We bring these matters to the attention of the Commission in this response because the Licensing Board has already declared that it lacks jurisdiction over Del-Aware's motion to reopen and the time has since expired for Del-Aware to seek reconsideration or the Licensing Board's analysis of its own jurisdiction.O It is questionable whether the Appeal Board has jurisdiction over Del-Aware's supplement because Del-Aware did not appeal the dismissal of its petition to reopen.
In 4/
See Philadelphia Electric Company (Limerick Generating
~
Station, Units 1 and 2), ALAB-726, 17 NRC 755 (1983).
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reviewing an initial
- decision, the Appeal Board has jurisdiction to conduct a sua sponte review of matters not,
raised by the parties which involve a
serious
- safety, environmental, or common defense and security matter.5!
But it is less clear that this authority, which extends to the Commission's delegation of review of initial decisions,5I also includes review of orders denying a motion to reopen 1/
or a
final order denying all of a
party's proposed contentions.8_/
Therefore, Licensee has filed this response with the Commission as the entity most likely to have jurisdiction.
Whoever has jurisdiction, the most recent " supplement" should also be dismissed.
- First, the Licensing Board's analysis of jurisdiction correctly shows that the matters which Del-Aware wishes to pursue relate to the First PID in this proceeding, which became final agency action when the Commission declined to review the two decisions of the Appeal Board reviewing the First PID and the related remand 5/
10 C.F.R. S2.785 (b) (2).
1/
10 C.F.R. S2.785(a).
7/
10 C.F.R. S2.734.
8/
10 C.F.R.
S2.714a.
Whereas the Appeal Board's delegated authority under S2.785 expressly includes sua sponte jurisdiction to review matters not appealed by the parties, Section 2.714a expressly authorizes the Appeal Board to hear appeals, but without any mention of sua sponte jurisdiction.
. C order.1/
Where a petition for review in the United States Court of Appeals is not
- filed, the Commission's own jurisdiction in an adjudicatory proceeding-to reconsider or reopen ' final agency action is co-extensive with the 60-day period in which a party may have filed a petition for judicial review.EI Thus, even the Commission itself lacks jurisdiction in an adjudicatory proceeding to reevaluate environmental impacts associated with the operation of-the Bradshaw Reservoir.
Even assuming that somewhere within the Commission there exists jurisdiction over the new matters raised by Del-Aware, Del-Aware did not appeal the dismissal of its originally filed petition and cannot now pursue the matter simply by filing a " supplement."1_1_/
Moreover, the numerous 9/
- Limerick, supra, ALAB-785, 20 NRC 848 (1984) and
~
ALAB-804, 21 NRC 587 (1985).
M/
Florida Power and Light Company (St.
Lucie Nuclear Power
- Plant, Unit
- 2),
CLI-80-41, 12 NRC
- 650, 652 (1980).
For the same reason, the Commission lacks jurisdiction to reconsider its actions upon the filing of a
petition for judicial
- review, absent express authorization by the Court of Appeals.
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-85-14, 22 NRC 177, 179 (1985).
--11/
It is noted that Del-Aware raises additional matters for the first time in its supplement, such as the security system for Limerick and the accident at Chernobyl.
Del-Aware did not raise these matters before the Licensing Board.
In any event, the same jurisdictional analysis would apply inasmuch as the only matters pending before the Appeal Board
- and, ultimately, the Commission relate to reasonable (Footnote Continued)
+
- 6 -
(
Lin
.its filing require its procedural irregularities
' dismissal ~.
- Finally, Del-Aware has yet to
- address, much less-satisfy, the criteria for reopening under.10 C.F.R. 52.734
.and admission-of a
new contention under 10 C.F.R. 52.714 (a) (1).NI In the interest ' of -avoiding unnecessary duplication, Licensee respectfully refers the Commission to (Footnote Continued) assurance of an adequate number of bus drivers to implement two school district emergency plans for Limerick and an adequate means to notify off-duty guards at' the' State Correctional Institution at Graterford in the event of an emergency.
M/
Although a previous. contention regarding the Bradshaw Reservoir had been
- admitted, it pertained to allegations of a
" substantial risk of groundwater contamination and hydraulic saturation due to seepage from the Bradshaw Reservoir and the transmission mains."
Limerick, supra, LBP-82-43A, 15 NRC 1423, 1486 (1982).
By contrast, Del-Aware's petition filed on September 23, 1986 and the instant supplement relate to different environmental considerations and new safety allegations.
Because Del-Aware seeks the admission of a new contention rather than to reopen the record on its old contention, it must meet both the standards for reopening and admitting a
late-filed contention.
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-82-39, 16 NRC 1712, 1714-15 (1982).
The same standard applies to Del-Aware's newly raised issues of plant security and the implications of the Chernobyl accident.
. 4 its brief filed with the Licensing Board on the merits of the petition.E Respectfully submitted, CONNER & WETTERHAHN, P.C.
Troy B. Conner, Jr.
Robert M. Rader Nils N. Nichols December 16, 1986 a
-13/
See Licensee's Answer to Motion to Reopen by Del-Aware Unlimited, Inc. (October 6, 1986).
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DXXEilD U3NPc UNITED STATES OF AMERICA
~ NUCLEAR REGULATORY COMMISSION 16 DEC 17 P2 :40 In the Matter of
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CFrwi c? 2 < r as y
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00CrETu 1.;revtu Philadelphia Electric Company
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Docket Nos. 50-36,2g,
)
50-353 (Limerick Generating Station,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response to Del-Aware Unlimited, Inc.'s Supplement to Reopen and Admit New Contention," dated December 16, 1986 in the captioned j
matter have been served upon the following by deposit in the United States mail this 16th day of December, 1986:
Samuel J. Chilk, Secretary Kenneth Carr, Commissioner Office of the Secretary U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Christine N. Kohl, Chairman Lando W.
Zech, Jr.
Atomic Safety and Licensing Chairman U.S. Nuclear Appeal Board Regulatory U.S. Nuclear Regulatory Commission Washington, Commission D.C.
20555 Washington, D.C.
20555 Thomas M.
- Roberts, Howard A. Wilber Commissioner Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 James K. Asselstine, Commissioner Gary J. Edles U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board 4
Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Frederick M. Bernthal, Washington, D.C.
20555 Commissioner U.S. Nuclear Regulatory Commission Washington, D.C.
20555
,--.~.,_.._..__._.-_._.m
J A 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 Philadelphia, PA 19101 and Safety Building Harrisburg, PA 17120 Mr. Frank R.
Romano 61 Forest Avenue Kathryn S. Lewis, Esq.
Ambler, Pennsylvania 19002 City of Philadelphia Municipal Services Bldg.
Mr. Robert L. Anthony 15th and JFK Blvd.
Friends of the Earth of Philadelphia, PA 19107 the Delaware Valley 106 Vernon Lane, Box 186 Moylan, Pennsylvania 19065 i
)
I 1 fI Charles W. Elliott, Esq.
Spence W. Perry, Esq.
325 N.
10th Street General Counsel s
Easton, PA 18042 Federal Emergency x
Management Agency Maureen Mulligan 500 C Street, S. W., ' Iun. 840M 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, pax 17120 g
N4 Jay M. Gutierrez, Esq.
Gene Kelly-U.S. Nuclear Regulatory Senior Resident Inspector.
J Commission U.S. Nuclear Regulatory 631 Park Avenue Commission King of Prussia, PA 19406 P. O. Box 47 Sanatoga, PA 19464 L
Timothy R.S. Campbell l
Director Mr. Ralph Hippert
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Department of Emergency Pennsylvania Emergency Services Management Agency 14 East Biddle Street B151 - Transportation West Chester, PA 19380 Safety Building U
Harrisburg, PA 17120 Theodore G. Otto, Esq.
Department of Corrections i
Office of Chief Counsel P.O. Box 598 Lisburn Road Camp Hill, PA 17011 T
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Robert M.
Rdder~
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