ML20215L177

Informs That 870904 Designation of ASLB on Request for Hearing by Fr Romano Lacks Legal Basis Due to Hearing Request Following Expiration Date

ML20215L177
Person / Time
Site:	Limerick
Issue date:	05/07/1987
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Cotter B Atomic Safety and Licensing Board Panel
Shared Package
ML20215L180	List: ML20215L177 ML20215L236
References
CON-#287-3359 OLA, NUDOCS 8705120126
Download: ML20215L177 (3)

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run , annue , unwi w B. Paul Cotter, Jr. , Chairman Atomic Safety and Licensing Board Panel United States Nuclear Regulatory Commission Washington, D.C. 20555 Re Memorandum from Samuel J. Chilk, Secretary, dated April 29, 1987 Regarding Request for Hearing by Frank R. Romano On Amendment of Limerick Operating Licenso

Dear Judge Cotter:

In a memorandum to you dated April 29, 1987, which we received on May 4, the Secretary forwarded a request by Frank R. Romano, on behalf of the Air and Water Pollution Patrol, which purported to requent a hearing on an application filed August 19, 1986 by Philadelphia Electric Company. The application sought an amendment of Facility Operating License NPF-39 for the Limerick Generatina Station. Mr. Romano submitted his petition on September 4, 1986.

The Commission nevertheless did not initiate any proceeding on the application until March 12, 1987 (52 Fed.

Reg. 7675, 7691) by notice of an opportunity for hearing and the propound determination that the amendment involves nc nignificant hazards consideration. Mr. Romano's petition of September 4, 1986 was thorofore not a legal requent for a hearing under the regulations and cannot constitute a legal basis for the appointment of a licencing board.

In his memorandum, the Secretary ntaten that Mr. Pomano was advined at the timo his petition wan cubmitted that t h ,'

petition was prematuro "but would be held" until the ftaff had completed itn review of the amendment application and publinhed an appropriato notice in the Federal Reginter. A copy of a lotter from Mr. Clementn, then Chief of the 870D120126 070507 4 PDR ADOCK 03000352 ~

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e o- D. Pcul Cottor, Jr.

May 7, 1987 Page 2 Docketing and Service Branch to Mr. Romano, dated September 10, 1986, is attached. It states in relevant part:

When the NRC Staff has reached a deci-sion on PECO's application of August 19, 1986, a notice will be published in the Federal Register informing interested persons of their hearing rights, and indicating the procedures for filing petitions. The Commission will not act on your request until that time.

The Office of the Secretary will hold your filing until the Staff has issued its Federal Register Notice. At that time we will formally forward the petition to the Chairman, Atomic Safety and Licensing Board Panel for appropri-ate action. However, in the interim, I will send a copy of your filing to the Office of Nuclear Reactor Regulation and to the ASLDP for their information.

In our view, the Office of the Secretary acted beyond its authority. There is no legal basis by which the Secretary can " hold" a premature hearing request in suspension on the theory that, at a later time, it will ripen into a valid request. There is no regulation and we are unaware of any Commission order by which the Secretary has been instructed to " hold" a request for hearing submitted in advance of the formal notico providing opportunity for hearing.

The requested amendment for Limerick is covered by the provisions of 10 C.F.R. 5 2.10 5 (a) ( 4) , which requires notice of the proposed action, and 10 C.F.R. 52.105(d), which provides thirty days from the date of notico for any inter-ested person af fected by the proceeding to file a request for a hearing or petition for leave to intervono if a hearing has already been requested. The more filing of an application for an amendment does not give rise to an opportunity for hearing. Inasmuch as Mr. Romano's petition t was sent prior to formal notico by publication of the proposed action and opportunity for hearing, it was a legal l nullity. Put differently, there was no proceeding pending l in which any request could be properly docketed. As stated in 10 C . F . R . 52.717, a " proceeding is deemed to commence l

when a notice of hearing or a notice of proposed action l pursuant to 52.105 is issued."

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e

. B. Pcul Cottor, Jr.

May 7, 1987

' Page 3 l

Further, the period within which any interested person could have requested a hearing on the amendment expired on April 13, 1987. Although notice of opportunity for hearing was given on March 12, 1987, Mr. Romano's premature petition was not forwarded to you until April 29, 1987.. To permit consideration of Mr. Romano's request at this time would have the effect of creating an opportunity for hearing well after the expiration of the period of legal notice.

Accordingly, there is no legal basis for designation of a licensing board on the request for hearing by Mr. Romano because no valid request is pending.

It is noted that a similar petition dated August 25, 1986 seeking a hearing on the same application was filed by Robert L. Anthony. The Secretary sent a similar letter dated August 28, 1986 to him. Copies are attached for your convenience. We have no indication that the Secretary forwarded Mr. Anthony's request to you as he did Mr.

Romano's.

Sincerely, W) '

Troy B./ Conner, Jr.

Counsel for Philadelphi Electric Company Enclosures cci William C. Parler, Erg.

Mr. Samuel J. Chilk Mr. Frank R. Romano Mr. Robert L. Anthony Document Control Desk

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