ML20216D457
| ML20216D457 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 06/22/1987 |
| From: | Cole R, Morris P, Wolfe S Atomic Safety and Licensing Board Panel |
| To: | Anthony R, Romano F AIR AND WATER POLLUTION PATROL, ANTHONY, R.L., PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| References | |
| CON-#287-3864 87-550-03-LA, 87-550-3-LA, OLA, NUDOCS 8706300529 | |
| Download: ML20216D457 (8) | |
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{{#Wiki_filter:~ m ' 3 gg/ . c. 1 00tEETE0 Us a -{ UNITED STATES 0F AMERICA. NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD'. L Before Administrative Judges { q; Sheldon J. Wolfe, Chainnan - Dr. Richard F. Cole i Dr.': Peter A. Morris SERVED JUN 2 31987 1 In the Matter of Docket No. 50-352-OLA ) (TSIodine)._ PHILADELPHIA' ELECTRIC' COMPANY' (ASLBPNo. 87-550-03-LA) (Limerick Generating-Station, Unit 1). ) . June 22,.1987 1' ) MEMORANDUM AND ORDER' MEMORANDUM i I. Background - ) On August 19,1986,. the Licensee filed an application requesting-1 that.the Limerick Technical Specifications -(TS) for its Limerick Generation Station, Unit 1, be amended to incorporate.the revised l reporting requirements set forth in Generic Letter No. 85-19' dated September 27, 1985, wherein it was stated that the NRC Staff had determined that the reporting requirements for iodine spiking could be; reduced from a short term-report (Special Report'or Licensee Event Report) to an item which is to be included in the Annual Report.. On. j 4 l J l 8706300529 870622 DR ADOCK 0500 2 ])5W
e 'l - August 25, 1986,- Mr. Robert L. Anthony submitted to the Secretary of the.. Comission a Petition For Leave To Intervene And For A Hearing On PECO's Application For An Amendment Of License NPF-39 Dated August 19, 1986. On September 4,1986, asserting that he was Chairman, Air and Water Pollution Patrol (AWPP), Mr. Frank R. Romano also submitted a Petition For Hearing And leave To Intervene Opposing Applicant's Application For - Amendment... A copy of each petition was served on the. Licensee.. In, identical-letters to Mr. Anthony of August 28, 1986 and to Mr. Romano of: September.10, 1986, the Docketing and Service Branch advised.that the filings were premature, that the Office of the Secretary would hold these filings until the Staff had issued its Federal Register Notice, and that, at the time of this issuance, the filings of the petitioners would be forwarded for appropriate action to the' Chairman of the Atomic l Safety and Licensing Board Panel. On March 12, 1987, the Comission published a notice captioned' " Consideration of Issuance Of Amendment To Facility. Operating License j And Proposed No Significant Hazards Consideration Determination And Opportunity For Hearing." The Notice stated that requests. for a hearing and petitions for leave to intervene had to be filed by April 13, 1987, and that the Staff proposed to determine that the. application for amendment involved no significant hazard consideration. 52 Fed. Reg. 7675, 7691, 7693. i j
f 4 On April 29, 1987, the Comission's Secretary furwarded. l Mr. Romano's petition on behalf'of AWPP to the Chief Administrative-v .y . Judge,7 ASLBP' for appropriate action. On May 20, 1987, after this Board _ i had been established on May 7, 1987, the Commission's Secretary i forwarded Mr. ' Anthony's petition to us for appropriate action. On May 20, the Licensee filed an Answer opposing AWPP's petition and on May 22 filed an Answer opposing Mr.. Anthony's petitione J Our Order of May 22,1987(unpublished),insubstancenoted'that l Licensee's Argument I was identically presented in each of its opposing answers. Accordingly, we requested that the two petitioners and the~ Staff. file responses only to Argument I, and that, if we rejected a Argument I, we would thereafter request that they address Licensee's Argument II. 4 ( 1 Our Order stated that Argument I urges that each petition is not a. valid request for a hearing in' response to the' notice published in the Federal Register, and that Argument II argues-that each petitioner has not met the requirement for representational ~ standing.
's 9 I .1 On June 2, AWPP filed its response.2 On June 8, Mr.' Anthony filed his response and'on June 16, the-Staff filed its response.4 3 II. Discussion Citing various regulations, the Licensee argues in Argument I that - the.right-to a hearing can be invoked only after due notice in the-Federal' Register, that there is no regulation'or known Commission order or policy which authorizes the. Conmission's~ Secretary to hold in. abeyance requests for a hearing submitted in' advance of a-formal notice - providing opportunity for hearing, and that, absent delegation of any' enumerated powers which suggest that he had discretion to retain and 2. AWPP responded that it did not understand what the Board meant in using the verb " urges" because that word was not-sufficiently descriptive and that.thus it was impossible for AWPPito properly respond. Had AWPP.taken the time to consult a dictionary, it would-have learned that the meaning is to insist, plead or allege. 3 Mr. Anthony failed to comply w'ith 10 C.F.R. 52.708(d)l.in not filing the original of his response and two conformed copies with,the. Docketing and Service Branch. While he served three copies upon the Board, contrary to 10 C.F.R. 62.701(b). he did not certify that he had served a copy of his response to all those identified on the current service list. Further,=the Board will not forward a submission to the Staff -- the Staff, like anyone else on. the, service list, should be served directly. This one time, at the.. request of the Board, the Docketing and Service Branch has. served a copy of Mr. Anthony's response to all 'on the service list. 4 The Staff utilized a service list from a former Limerick case. Fortunately, those who are active in the instant case were named.in the fonner Limerick case service list and thus were served. Care-should be taken to use the correct serviceLlist.. 1 4
. t'. s. y ,? reactivate the invalid. petitions, the Secretary should have denied the requests.. Accor fingly, the Licensee urges that the two petitions should be dismissed because they are not valid requests for a hearing in . response to the notice published in the. Federal Register. Moreover, the . Licensee contends that this Board lacks jurisdiction or authority.to l expand the notice of opportunity for hearing to encompass retroactively; the pmnaturely filed petitions. We.heve been ~ persuaded by the Staff's thorough, well-considered j response, and' accordingly we reject Argument I. We conclude that the Secretary acted within the scope of his authority and did not abuse his j l 5 discretion. In the first place, he did not contravene 52.702 because 1 he did not accept the. petitions for filing and proc'eed to set up and f maintain a docket inassauch as, per $2.717,'a proceeding is deemed to commence when'e notice of hearing or a notice-of prtiposed action-N pursuant to 92.R15' is issued. Moreover, 52.702 does not mandate that he-reject petitions for filing if a proceeding has not commence >Ldnd.~does q 5 Sectfon 2.702 provides: The Secretary will maintain a docket' for each proceeding i subject to this part, commencing with the issuance ofothe-initial notice of hearing, notice of consideration of issuance i of facility operating license or'other proposed action specified in 52.105, or order to show cause. The. Secretary will maintain all files land records, including the transcripts of testimony and exhibits and all papers, correspondence,- decisions and orders filed or issued, L' s .s I b ..t W
s .e 4 . 1 not preclude him from. holding in abeyance such petitions until he.has j 6 the authority to accept them. Second, 52.709 reflects that the Secretary may reject for filing a document if it does not meet the i formal requirements,(such as for the size of the paper and for j double-spacing) of 92.708. Thus; he is granted the discretion whether ] to. accept or reject documents for filing, and if he does not reject a document.for filing, 52.709.does not require that.he~ docket the document i nor'does it preclude' him from docketing it under the appropriate i circcostances. Third,.62.772(i)7 does not limit the Secretary's discretion in accepting or rejecting documents for filing. Even assuming that in some manner the requests for hearing do not comply with j j 1 0 Sectior 2.709 providesr A document which fails to conform to the requirements of 62.708 may be refused acceptance for filing and may.be I returned with an indication of the reason for nonacceptance. Any matter so tendered but not accepted for filing shall not be entered on the Comission's docket. 7 Section 2.772 provides in pertinent part: When briefs, motions or other papers listed herein are sub:nitted to the Comission itself, as opposed to officers who have been delegated authority to act for the Comission, the ' Secretary or the Assistant Secretary are authorized-to: (i) Deny a request for hearings, where the. request fails. to comply with the Comission's pleading requirements set forth in this Part, and' fails to set forth an arguable basis-I for further proceedings. s -m--
yz: 7 l ?t -) 9 % s. ') y I h. ' 3 i j 7 s (' / y the Commission's. pleading requimments and do o t set forth an c.rgukble basis for further proceedings, 92.772(f) does not require that he' reject them, and, as the Staff. points cut nthe Secretary usually leaves such .w< deteminations to the presiding licensing board. Fourth,asdiscu$ sed 3 above,. since the Secretary acted prrmerly and well within the scope of his authority and did not abuse his e,cretion, we need not reach and decide the. Licensee's argument that this Board lacks the jurisdiction or / \\ authority to expand the notice of hyportunity for hearing <to encomAu ( retroactively the two instant petitionse Finally, we deem disingenuous. o the Licensce's argument that our approval of the Secretary's actions would prejudice its legal rights. The, Licensee was. served with copies of the two petitions as wellas with copie.s of the. Secretary's letters. to the petitioners dated respectively Augnt.28I and: September 10, 1986. Had it objected in a timely manrer and beut successful, thezpatitioners ), could have resubmitted their petitions within thcl(Ariod set t; orth:in 's s s b ,e the Commission's notica - i.e., by April 13, 1087. To rule in the Licenice's favor, wouM be to severely prejudice the fights of the t petitioners, who had relied upon the Secretary's representation,;and would denigrate the administrative as well as the adjudicatory process. '~ .g ,4 ORDER ) b 3. ArguestIinLicensee'sAnswersofMay20andMa[22,1987i's rejected. i t I f 1 .t a a b' L. ~, g. )lJ d .s
6 - 2L By ' July' 7,.;.1987;- AWPP sha11 file:its responsecto.. Argument II. n set forth in Licensee's Answer of May,20,1987, and, by the same date, Mr. Anthony shall file his response to Argument II set forth in Licensee's-Answer. of May 22, 1987. By July 13, 1987, the Staff shall respond to Argument II set forth in the Licensee's two Answers. THE ATOMIC SAFETY AND LICENSING BOARD j- $htMd Sheldon J. Wa[tTe, Chaihnan ADMI TIVF JUDGE Dr. Richard F. Cole ADMINISTRATIVE JUDGE 8. 3 1 Dr. Peter A. Morris ADMINISTRATIVE JUDGE 1' Dated at.Bethesda,: Maryland this 22nd. day of June,.1987.}}