ML20245F716

Reply by Licensee Philadelphia Electric Co to Response of Intervenor Limerick Ecology Action,Inc to Memorandum & Order of Commission Dtd 890726.* Environ Benefits for Operating Unit 2 Outweigh Small Risk of Severe Accident

ML20245F716
Person / Time
Site:	Limerick
Issue date:	08/09/1989
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	NRC COMMISSION (OCM)
Shared Package
ML20245F692	List: ML20245F687 ML20245F716 ML20245F729 ML20245F751
References
OL-2, NUDOCS 8908150044
Download: ML20245F716 (10)

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CDCKETED UWC N

UNITED. STATES OF AMERICA P

NUCLEAR REGULATORY COMMISSION c r r.

Before the Commission buCrd (

p In the. Matter of

)

Docket No. 50-353-OL-2

)

Philadelphia Electric Company

)

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(Severe Accident l-(Limerick Generating Station,

)

Mitigation Design Unit 2)

)

Alternatives)

REPLY BY LICENSEE PHILADELPHIA ELECTRIC COMPANY TO RESPONSE OF INTERVENOR LIMERICK ECOLOGY ACTION, INO. TO MEMORANDUM AND ORDER OF COMMISSION DATED JULY 26, 1989

. Background

By Memorandum and Order dated July 26,

1989, the Nuclear Regulatory Commission

(" Commission" or "NRC")

invited.the parties to comment upon three areas as part of the. Commission's "immediate effectiveness" review for issuing a full-power operating license for the Limerick Generating Station Unit 2.

Those three areas bear upon the environmental costs and benefits of delaying the full-power

. operation of Limerick Unit 2 until the end of the first fuel cycle.

The Commission also solicited the parties' views and information pertinent to five specific questions concerning the feasibility and associated impacts of delaying installation of any potential severe accident mitigation design alternative ("SAMDA").

On August 1 and 2,

1989, each of the parties filed comments.

Both the NRC Staff and Licensee Philadelphia 8908150044 89M hh PDR ADOCK O PDR-O

Electric Company

(" Licensee") provided detailed information I

responsive to the environmental and financial consequences j

i of delaying installation of any SAMDA until the end of the first fuel cycle.

Intervenor Limerick Ecciogy Action, Inc.

(" LEA"),

however, provided no such information.

Essentially, it asserted that the Commission's delineation of the issues was inadequate, that more time was required for its response, and that the Commission could not lawfully issue a full-power license for Unit 2 until the pending SAMDA proceeding had been completed.

LEA's response mischaracterizes the nature of the licensing issue now before the Commission.

As in every other contested licensing case in which the Commission has conducted its "immediate effectiveness" review, a decision to issue a full-power operating license for Unit 2 would not be a determination on the merits of the SAMDA contention and would not prejudice or otherwise affect the outcome of the SAMDA litigation.

The Commission therefore acted properly to obtain all the information it could so as to achieve a

fair and reasonable

" balancing of the equities" regarding a

full-power license for Limerick Unit 2.

This non-merits review is the same as the courts have performed in permitting a federally licensed project to proceed in the face of judicially determined noncompliance with the National Environmental Policy Act of 1969

("NEPA"),

42 U.S.C.

S4321 et sg.

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Argument I.

No' Applicable Statute Requires An m

Adjudicatory Hearing On The Issue Of Whether A Full-Power Operating License May. Issue Prior to Completion Of'The SAMDA Proceeding N

LEA; appears.to have confused the factual merits of its contention (i.e.,

whether any of the SAMDAs pleaded with adequate basis' and specificity is cost beneficial) with the 1

far different, legal question of whether all of the equities, on balance, favor issuance of a full-power-license E-for Limerick - Unit 2 prior to completion of the hearing on

.its contention.

While LEA is entitled to a hearing on its

~ contention, neither the Third - Circui' 's decision nor the c

Commission's regulations require an adjudicatory hearing on theilegal issue.1/

Specifically, nothing in 10 C.F.R.

Part i

2 or Part 51 compels the Commission to afford an intervenor a formal hearing on the - legal presented here (whether the full power license may issue prior to the NRC's hearing on SAMDAs) or, for that matter, on am matter subsumed in the Commission's "immediate effectiveness" review.1/

i l_/

Thus, the Third Circuit imposed no hearing requirement -

on the issue of granting a full-power license for i

Limerick Unit 2

prior to completion of the SAMDA j

proceeding.

Instead, without mentioning the need. for any such hearing, the Third Circuit obviously assumed that a full-power operating license for Unit 2 either had been or would be issued.

Limerick Ecology Action, Inc.'v. NRC, 869 F.2d 719, 741 n.27 (3d Cir. 1989).

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Under 10 C.F.R. 52.764 (f) (2), the Commission's decision 2/

(Footnote Continued)

I 1______________

)

Accordingly, there is no legal requirement for formal hearings regarding the Commission's consideration of l

"immediate effectiveness."

And the NRC's "immediate effectiveness" provisions have been judicially apprcived,

notwithstanding arguments that the rule violated an intervenor's right to a formal adjudicatory hearing under the Administrative Procedure Act.S!

As the Fourth Circuit aptly stated in rejecting t Tims by interveners that they had been denied adequate notice and an opportunity to present arguments at an "immediate effectiveness" review:

The petitioners' position contains the assumption that the full panoply of procedural rights and projections pertinent to a full adjudicatory hearing attached to this immediate effectiveness review.

We find this assumption to be unwarranted.

The court in Oystershell Alliance v.

United States Nuclear Regulatory Commission, 800 F.2d 1201 (D.C. Cir. 1986) (per curiam), held that the Commission is within its discretion in providing in 10 C.F.R. 62.764 for an immediate effectiveness review of licensing board initial decisions through this informal review process parallel to the formal appeal proceedings.

We find its reasoning and (Footnote Continued) whether to stay authorization for issuance of an operating license involves no formal hearing.

At most, "the parties may file brief comments with the Commission pointing out matters which, in their view, pertain to the immediate effectiveness issue."

10 C.F.R.

S2.764 (f) (2) (ii).

The Commission may even dispense with its receipt of comments entirely by so advising the parties.

M.

3/

Eddleman v.

NRC, 825 F.2d 46 (4th Cir.

1987);

Distershell Alliance v.

NRC, 300 F.2d 1201 (D.C. Cir.

1986) (per curiam).

s.

conclusions persuacive.

Because the petitioners had no rights to notice and a

hearing under the Commission's immediate effectiveness review process:

the appellants' argument is without merit.4_/

Nor does NEPA itself impose any requirement for formal hearings in the Commission's "immediate effectiveness" decisions inasmuch as NEPA imposes no hearing requirement whatsoever.5_/

LEA's remaining arguments are merely a reiteration of its erroneous and wholly unsupported belief tha?

NEPA requires completion of the SAMDA hearing prior to issuance of an operating license for Limerick Unit 2.

Here

t. gain, LEA confuses the merits of its SAMDA contention with the

" balancing of the equities" which the Commission must perform separately.

,4_/

Eddleman, 825 F.2d at 48.

The authorities upon which LEA relies are simply inapposite.

For example, Union of Concerned Scientists v.

NRC, 735 F.2d 1437 (D.C.

Cir. 1984), interprets the right of an intervenor under Section 189 of the Atomic Energy Act, 42 U.S.C.

S2239, to a hearing on " merits" issues material to licensing, not the procedural issue of "immediately effectiveness."

Moreover, the " balancing of equities" regarding Limerick Unit 2 arises onder NEPA, not the l

Atomic Energy Act.

t 5/

Natural Resources Defense Council, Inc.

v.

NRC, 539 F.2d 824, 838 (2d Cir. 3976).

. e II.

The Commission's Solicitation Of Comments From The Parties Was A Proper Exercise Of Agency Discretion LEA's complaint of unfairness in the Commission's solicitation of comments from the parties is without merit.

l Despite LEA's complaint of time constraints, it is the very l

l premise of the "immediate effectiveness" rule that the Commission will have to act very promptly in order to avoid unnecessary and costly delays in licensing.6/

Both the NRC Staff and Licensee met the Commission's schedule and provided detailed substantive comments in each area.

If LEA needed more time, it could have requested it.1!

As the Third Circuit has held, there is no denial of 6/

See also Eddleman, 825 F.2d at 48.

It has been aptly l

stated that the NRC's licensing process " contemplates

.j that operating license proceedings generally will be completed before construction of the facility is finished in order to avoid unnecessary and costly delays in plant operation."

Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-811, 21 FRC 1622, 1627 (1985).

7/

We note that the three basic issues raised by the

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Commission at that time are substantially the same as those discussed at some length in its authorization for issuance of a 16w-power operating license for Limerick Unit 2.

See Limerick, CLI-89-10, 30 NRC (July 7, 1989).

Specifically, the Commission then considered (1) the incremental increase in occupational exposures which would result from postponing installation of a SAMDA until after power operations had begun; (2) the incremental increase of risk to the public that could arise from operation of the unit without SAMDAs; and (3) whether low-power operations would foreclose the I_d,. (slip op. at 7-13).

The adoption of any SAMDAs.

d (Footnote Continued)

_7_

q,

'due E process when. a ' party, accedes to a tight schedule.E/

And', though not required to do so, the Commission has also allowed a week to respond to each party's comments, offering

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' LEA 1 yet ' another ~ opportunity for substantive input.

The Commission even grunted LEA yet another week's time sua spontie' for its response.

The Supreme Court has held that the NRC.has considerable latitude in adopting agency procedures so.long. as minimum APA requirements have been met.E!

The NRC's "immediate effectiveness" rule does not violate any procedural right.EI Nor. is there any merit to LEA's excuse that its resources are small' compared to those of the NRC Staff and l

Licensee.

The Commission may note that LEA has litigated f

. numerous contentions chroughout the construction permit and-(Footnote Continued)

. Commission explicitly said that it "may request that the parties address additional questions" relating to full-power 12. cense issuance.

If. (slip op. at 14).

It is' also worth noting

that, in its motion for reconsideration and to stay, suspend or revoke issuance of the low-power license, LEA did not take issue with any of the Commission's cost / benefit findings for low-power authorization.

-8/

Limerick Ecology Action, 869 F.2d at 749 n.36.

We see no practical

. distinction between the Graterford inmates' voluntary stipulation to an accelerated hearing schedule in that case and the failure of LEA in the instant matter to request relief from what it later claimed to be an unreasonable deadline.

9/.

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S.

519, 548 (1978).

10/

See notes 3 and 4 and accompanying text, supra.

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. operating license stages for.

Limerick, that LEA is I

represented by-counsel and that it has retained a technical L

consultant (Steven Sholly of MHB Technical Associates) to iNaist. it in -the SAMDA proceeding.

In any ' event, the Commission.has consistently. ruled that alleged disparities in the'. resources of the parties is not a valid reason for.

delay in the : proceeding.N!

Also, it is scarcely. a valid legal objection that much of the requested information, such as occupational dose rate and financial hardships in delay, 4

lies more' within the knowledge of parties other than LEA.

Each: party has been free to contribute whatever it can.

In any event, LEA will'have had two weeks to review and reply to the coraments filed-by the NRC Staff and Licensee.

Finally,. LEA argues that the areas of. inquiry posed by the Commission's_ questions are inccmplete.

The simple answer is that. the Commission never restricted LEA from.

filing any comment it believes relevant to the Commission's determination.

Rather, the Commission posed five questions to obtain more information on the three categories of environmental impacts which the Commission deemed apparent to M.

The Commission did not dictate that the parties must agree with its formulation of the

issues, nor did it

-11/

Duke Power Company (Catawba Nuclear Station, Units 1

'and 2), CLI-83-19, 17 NRC 1041, 1048 (1983).

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. prohibit any ' party from submitting other information deemed

' relevant.N!:

Conclusion For the reasons discussed above and in PECO's i

previously filed pleadings and supporting documents,El the Commission should determine, upon a balancing of all of the

equities, that the environmental benefits of operat!ing Limerick Unit 2 for the first fuel cycle far outweigh the

..very small,. incremental risk of a severe accident at Unit 2

.12/

Regarding ' LEA's claim that the Commission should

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cons 1 der the environmental effect of the entire fuel cyc; 3

" implied by Limericx operation. for one fuel.

cycle"' (LEA Response at 7),

there.was no need - to revisit. earlier findings as to uranium fuel cycle impacts in the Final Environmental Statement for Limerick..See Limerick FES at S5.10.

PECO.' agrees with LEA, however,. that the present need for generating. capacity from Limerick Unit 2 for the-first fuel cycle is a proper area of inquiry and has therefore addressed this point in its response on August' 2,

1989 to Question 3.

Contrary to LEA's belief, however, Licensee intends to operate both units-of its Cromby Station (one coal-fired base load unit and one oil-fired peaking unit) well into the next

' century because of increased power demands.

This information has been reported to the Pennsylvania PUC in PECO's Integrated Resource Plan for 1989.

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See cenerally Motion for Clarification (June 5, 1989);

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Reply Memorandum in Support of Motion for Clarification (June 21, 1989); Answer by Licensee PECO to Motion of LEA'to Reconsider / Stay / Suspend / Revoke Order Authorizing Issuance of Low-Power License for Limerick Unit 2 (July 26, 1989).

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if1 installation Lof any _ potential SAMDA. < is-postponed until '

the'first. refueling outage.

' Respectfully. submitted, CONNER & WETTERHAHN, P.C.

. Troy B. Conner,' Jr.

Mark-J.:Wetterhahn-Counsel for Licensee August 9, 1989' k

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