ML20246P058

Answer by Philadelphia Electric Co to Request by Rl Anthony for Hearing & Admission as Intervenor.* Anthony Not Entitled to New Hearing on Emergency Plannning or Other Safety Issues & Request Should Be Denied.W/Certificate of Svc

ML20246P058
Person / Time
Site:	Limerick
Issue date:	07/07/1989
From:	Rader R CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	NRC COMMISSION (OCM)
References
CON-#389-8879 OL, NUDOCS 8907200101
Download: ML20246P058 (13)

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                                                              'Before th'e Commission       0"X: -        Rm -W '
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                       'In the Matter of                                         )'
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Philadelphia Electric _ Company -) Docket Nos. 50-352-OL

                                                                                 )               50-353-OL (Limerick Generating Station,                           )

Units 1 and 2) ) ANSWER-BY PHILADELPHIA ELECTRIC COMPANY TO_ REQUEST BY ROBERT L. ANTHONY FOR A HEARING AND ADMISSION AS AN'INTERVENOR

Background

Robert L; Anthony (Anthony) is a former intervenor in the operating license proceeding for the Limerick Generating Station (Limerick). He was admitted as an intervenor after the first prehearing conference in 1982,1/ and particip'ated

                      ~in the proceeding by litigating two safety contentions.                                 One contention postulated the rupture of of fsite . petroleum and natural gas pipelines and another challenged the adequacy of k

l 1/ See Philadelphia Electric Company (Limerick Generating l' Station, Units 1 and 2), LBP-82-_43A, 15 NRC 1423, 1440 (1982). Anthony petitioned to intervene on his own behalf as well as the Friends of the Earth in the Delaware Valley (FOE) and other individuals, all of whom were treated as a single intervenor desionated FOE. 8907200101 890707 PDR ADOCK 05000352 G PDRj g

1. I . offsite emergency planning to account for traffic congestion. ! l Each contention was decided against Anthony at the l hearing and on appeal.3/ The Commission declined to review those decisions 4/ and also denied a stay in each instance.5/ Anthony did not seek review of any of these decisions by the Court of Appeals. The original operating license proceeding for Limerick concluded on June 19, 1987 when the Commission I declined to review the final decision in that proceeding.6_/ This action rendered res judicata each of the matters which was or could have been litigated in t!; proceeding. Notwithstanding his failure to seek judicial review, Anthony filed on June 23, 1989 - some two years after the 2_/ See Limerick, LBP-84-31, 20 NRC 446, 464-93 (1984) (Second Partial Initial Decision), aff'd M relevant part, ALAB-819, 22 NRC 681 (1985); LBP-85-14, 21 NRC 1219, 1236-44, 1250-69 (1985) (Third Partial Initial Decision), aff'd _i_n relevant part, ALAB-836, 23 NRC 479 ) (1986). 3/ See note 2, supra. . l

                                                   ~4/   Limerick, CLI 3,    23 NRC 125, 126 (1986); Commission     j
                                                         " Order" (July 24, 1986).
                                                   ~5/   See      Limerick,   CLI-86-6,   23  NBC    130,   134  (1986);  l Commission " Order" (July 24, 1986).                            )1 6/    See Limerick, LBP-86-38, 24 NRC 731 (1986) (Supplement to Fourth Partial Initial Decision), aff'd, ALA3-863,           j 25 NRC 273 (1987). By Memorandum dated June 25, 1987, the Secretary informed the Boards and parties that the           ,

Commission declined review of ALAB-863 on June 19, 1987 l and that its decision was "the final agency order in i this operating license proceeding." I l l l l 1

t original licensing proceeding - a new request for a hearing on essentially the same traffic congestion contention and other new emergency planning contentions. In effect, Anthony is asking the Commission to piggyback his newly stated concerns on top of the remand issues, i.e., that he be " continued" as an intervenor in a subsequent proceeding resulting from the remand by the United States Court of Appeals in the Third Circuit on two issues utterly foreign to those raised by Anthony.7/ Although Anthony has not specified the particular safety contentions he wishes to litigate, he asks that the Commission delay fuel loading and operation of Limerick Unit 2 until "there has been a hearing on the safety of the plant and workable emergency plans have been approved and tested . . . . As the Commission is aware, the remaining issue on remand by the Court of Appeals pertains exclusively to the obligation of the NRC under the National Environmental Policy Act (NEPA) to consider certain design alternatives for the mitigation of severe accidents at Limerick.A The other remand issue, which has been settled by stipulation, gastioned whether the radiological emergency response plan 7/ See generally Limerick Ecology Action, Inc. v. NRC, 569 F.2d 713 (3d Cir. 1989). 8/ Anthony Request at 1 (June 23, 1989). l 9/ See Limerick, Commission " Order" at 1 (May 5, 1989).

    , ,             {

O. l' relating.;to the State Correctional Institution at.Graterford complies with NRC emergency planning standards that training be provided to bus and ambulance drivers who;may be called. upon to assist in.an evacuation of'Graterford.10/ Argument

                                                    .I. No Jurisdiction Exists to Reopen the-Record in Limerick on. Safety and' Emergency Planning Issues-As distinguished from its continuing role generally,-

the ' NRC 's formal adjudications are ' not open-ended. Thus, for Commission decisions subject to appeal under the Hobbs

                                    - Act, as'in the case of the Commission's final agency action on        Anthony's               contentions,                                                   the   Commission     retains jurisdiction for only 60 days to r e c o n s i d e r.. i t s actions.

The period ~ within which the Commission may reconsider. its decision runs concurrently with the '. period ' in which . an aggrieved party may seek judicial review under the Hobbs Act.N! Consequently, agency action.by'the NRC is final and

                                    ~

10/ See Limerick, Commission " Order at 1 (April 14, 1969). A Memorandum and Order generally approving the-stipulation and setting forth procedures for the dismissal of this contention was entered by the Licensing Board on June 2, 1969.. Limerick, LBP-89-14, 29 NRC (19 89"f . 11/ Florida Power and Light Company .(St. Lucie Nuclear-Power Plant, Unit 2), CLI-80-41, 12 NRC 650, 652 (1980). If & timely petition '2cr review were filed, the Commission would lose jurisdiction immediately. { See Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-85-14, 22 NRC D 177,.179 (1985). i _ mm.___..a ___-_m.6._em_ .mm_rm

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             -jurisdiction over the adjudicatory proceeding is terminated 60 days after the Commission declines to review any discrete issue. decided by the Appeal Board.12/

This means that the Commission lost jurisdiction over 1

             ' Anthony's contentions 60 days after it declined review of              J the Second. and Thiru PID,       respectively,   in   1986..  'Even-  .]

assuming that Commission jurisdiction over Anthony's

             -contentions continued until the entire record on unrelated contentions had been closed, Commission jurisdiction ceased 60 days after final agency action on June 19, 1987.                  .j Although.the Commission regained jurisdiction over two issues upon remand from the Court of Appeals,-it did so only to the extent necessary to resolve the remanded issues, just as a board regaine limited jurisdiction upon remand by the Commission. Under such circumstances, the jurisdiction over new and different issues exists only insofar as there is a
               " reasonable nexus,"EI'   i.e.,   "a rational and direct link"        I with issues explicitly within the renewed jurisdiction of the Commission or its boards.E!

1

              -12/  Diablo Canyon,     ALAB-782,    20 NRC   838,    841   (1984)

(collecting cases). 13/ See- generally Virginia Electric and Power Company  ; (North Anna Nuclear Tower Station, Units 1 and 2), -{ ALAB- 5 51, 9 NRC 704, 707 (1979). i 14/ St. Lucie, ALAB-579, 11 NRC 223, 226 (1980). The l Appeal Board thereafter stated that the lesson of these j decisions is that its consideration of an issue, (Footnote Continued) j l l

1 - 6-l~ l f. 1 Plainly, the two issues in the remand proceeding for Limerick, severe accident mitigation design alternatives (SAMDA's) and evacuation of Graterford inmates, bear no i discernible nexus nor any rational reutionship with the generalized concerns now raised by Anthony (i.e., the potential for traffic congestion in an evacuation of the general populace and life-saving instructions to onsite and offsite emergency personnel). Anthony did not join in the sponsorship of either the SAMDA or Graterford contention in the original NRC proceeding. Having failed to do so, he could not even have contested the exclusion of either contention from the hearing at that time.15/ He surely has no standing now to address either issue, or to create new issues not even peripherally related to the two issues properly before the Commission. Accordingly, the Commission has no jurisdiction to consider the issues now raised by Anthony, nor does Anthony have standing to participate in the remand issues.

                                     -(Footnotn Continued) followed     by   either       action     or    inaction   of   the Commission,     renders its determination, final agency action    on    that   issue.        As    such,   there   is   "no jurisdiction over a subsequent attempt to raise that n1.9.tt e r once again."    Louisiana Power & Light _ Company (Waterford Steam Electric Station, Unit 3), ALAB-792,               .

20 NRC 15R5, 1588 ( 19 8 /.- ) . ' 1_5) Carolina Power & Light Compary (Shearon Harris Nuclear Power Plant), ALAB-856, 24 NRC 802, 805 n.4 and accompanying text (1986).

V c II. Anthony Has'Neither Addressed Nor Met The Requirements for Reopening a Closed Proceeding and Admitting New, Late Contentions The potential for traffic congestion and its impact on the accuracy of evacuation time estimates for J.imerick appears to be the principal issue Anthony wishes to litigate in the remand hearing. He chooses to ignore, however, that the NRC has already conducted thorough hearings on this very contention which, along with other offsite emergency plan-ning issues, were decided against Anthony and others.1_6_/ As stated in the original notice of opportunity for hearing for Limerick,17/ the proceeding afforded interveners an opportunity to submit contentions related to both Limerick units. Each of the partial PID's leading to issuance of operating licenses likewise referred to both units. These findings are now res judicata. Even if the Commission had jurisdiction to reconsider its findings on traffic congestion in this proceeding, Anthony has failed to address, much less satisfy, the three criteria for reopening a closed record under 10 C.F.R. 5 2. 7 3 4 ( a ) ( 1.) - ( 3 ) . The Commission need not address these l criteria, however, because Anthony has failed to demonstrate by affidavit "the factual and/or technical bases" for his , l claim that the criteria for reopening have been l l I 16/ See note 2, supra. 17/ 46 Fed. Reg. 42557 (1981). l 4 I _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ - - _ _ _ - _ - d

7, p !lC "s: satisfied. W - . Anthony's unadorned allegations are not

                           "[a]ffidavits .-                  .   .'by competent individuals with knowledge

v. of the facts alleged,- or by experts in the disciplines appropriate to the issues. raised." D 1.

The burden of satisfying: reopening requirements is on the movant, who must establish at the outset, on the face of-his pleading, that such requirements have been met M The movant must carry a heavy burden which'cannot be met by bare allegations ' or the mere submission of new contentions.2_1,/ Rathur, the new material in support of a motion ' to reopen must exceed the particularity required for admitting con-tentions; it must be tantamount to evidence.- ! 1_8,/ 10 C.F.R. 52. 734 (b) . 19/ Id. 20/ Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), CLI-86-7, 23 NRC 233, 235 (1986). 2_1,/ Diablo Canyon, CLI-81-5, 13 NRC 361, 363 (1981).

                        ,22_/-      Indeed4 we note that Anthony has not even proposed                                                                                                                                                                                  .

particularized contentions with requisite bases and specificity. 10 C.F.R. 92.714(b). "(T]he filing of a a vague, unparticularized contention, followed by an endeavor to flesh.it out through discovery against the applicant or staff" is strictly impermissible. Duke Power Company (Catawba Nuclear Station, Units 1,and 2), A1AB- 6 8 7 , 16 NRC 460, 468 (1982), aff'd M relevant pt.rt, CLI-8 3 -19 ~, 17 NEC 1041 (1983). For this additional reason, Anthony's request cannot be granted. 23/ 3 10 C.F.R. $2.743(b); Waterford, CII-86-1, 23 NRC 1, 5 (1986). In this regard, it is noted that, at the hearings on his pipeline rupture and traffic congestion (Footnote Continued) l l l

a

i. 9.- )

i 1. i . J I l Anthony's bald assertions are therefore wholly insufficient, 1 l as r threshold ' matter, for the Commission even to consider j whether the three reopening criteria have been met., It is also obvious that Anthony has not met any of the three criteria for reopening.24/ First, there is no showing of any new, significant safety information which has been

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timely brought to the Commission's attention. The emergency planning issues raised by Anthony either were or could have been litigated in the original proceeding. Second, none of the issues involves a significant safety matter, as there has been no information contradicting the findings by the Commission as well as the Federal Emergency Management Agency that onsite and offsite emergency plans are adequate and reasonable assurance exists that they can be implemented.25/ Third, especially in light of the paucity of new evidence asserted, there has been no showing that a materially different result in emergency planning findings would be made if the matters raised by Anthony were considered. (Footnote Contiroed) contentions, Anthony offered no reliable expert 1 testimony to support his positions. In the first instance, the Board rejected the testimony of his q witness out of hand. Limerick, LBP-84-31, 20 NRC at l 467. In the second instance, his case rested solely on i the cross-examination of witnesses called by other j parties. Limerick, LBP-85-14, 21 NRC at 1234 n.31. 1 l M/ 10 C.F.R. 52.734 (a) (1)-(3) . 2_5,/ 10 C.F.R. 550.4 7 (a) (2) . 4

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4 With respect to those new issues (i.e., emergency response actions by onsite and of f site personnel) which had not been raised previously in the licensing proceeding, Anthony must also satisfy the requirements for untimely contentions under 10 C.F.R. 52. 714 (a) (1) (i)-(v) . 26 / As with the reopening requirements, Anthony has failed to address the five relevant factors and has certainly not satisfied them. As Anthony observes, he had a right to litigate these issues in the original proceeding,27/ assuming he satisfied NRC pleading standards; he simply chose not to do so. III. Anthony Is Not Entitled To A Stay Inasmuch as Anthony's intervenor status ceased with the Commission's loss of jurisdiction over those particular con-tentions he litigated, he now lacks standing as a party to seek a stay. Only a party to the proceeding may request a stay.28/ Even if the Commission were to consider Anthony's request for a stay, it should be summarily denied, as ) before, for failure to address the criteria for a stay set forth in 10 C.F.R. 52.788.29/ As with his earlier request, j Anthony has not so much as discussed the stay criteria, nor

                       .                                                                                                                              i 26/   See 10 C.F.R. S2.734(d); Diablo Canyon, CLI-82-39, 16 NRC 1712, 1714-15 (1932).

M/ See generally Union of Concerned Scientints v. NRC, 735 F.2d 1437 (D.C. Cir. 19d4). 1 g/ 10 C.F.R. 52.788(a). 1 29/ Limerick, CLI-86-6, 23 NRC 130, 134 (1986). l l

m~ _ . , .-- [. I has he " raised a significant safety issue."31/ Accordingly, the instant stay request should likewise be denied. Conclusion For the reasons discussed above, Anthony is not enti-tied to a new hearing on emergency planning or other safety issues. The Commission lacks jurisdiction to reinstate him as an intervenor and create new proceedings on his behalf. NRC jurisdiction over Anthony's contentions lapsed with the passage of time for appeal by Anthony under the Hobbs Act. In any event, Anthony has failed to meet the Commission's stringent requirements for reopening a closed record on litigated contentions as well as the separate standards for litigating new, late contentions. Accordingly, his requests for a hearing and stay should be denied. Respectfully submitted, CONNER & WETTERHAHN, P.C.

                                                 ~

s Troy E. Conner, Jr. Robert M. Rader Counsel for Applicant July 7, 1989 l 1 l 30/ Id. l

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                                                         '89 Ji 10 P7 :20 UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION.,

f0. I BRM;CH E In the Matter of )

                                                   ).

Philadelphia Electric Company ) . Docket Nos. 50-352-OL'

                                                   )                                    50-353-OL (Limerick Generating Station,          )

Units 1 and-2) ) CERTIFICATE OF SERVICE I hereby- certify. that copies of " Answer by Philadelphia Electric Company to Request by Robert L. Anthony for a Hearing'and Admission as an Intervenor" dated

          ' July 7,'1989 in the captioned. matter have been served upon the following by deposit in the United States mail this'7th                                 -
          -day of July, 1989:

Morton B. Margulies, Esq. Frederick J. Shon Atomic Safety and Atomic Safety and Licensing Licensing Board Panel Board Panel-U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry L. Kline Atomic Safety and Licensing Atomic Safety and Appeal Panel Licensing Board Panel U.S. Nuclear Regulatory U.S. Nuc2 ear Regulatory . Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Joseph Rutberg, Esq. Dr. Jerry Harbour Counsel for NRC Staff Atomic Safety and Office of the General Licensing Loard Panel. Counsel U.S. 8:2 clear Pegulatory U.S. Nuclear Regulatory Ccmmission Commission 4 Washington, D.C. 20555 Washington, D.C. 20555 j Atomic Safety and Licensing Edward J. Cullen, Esq. Board Panel Philadelphia Electric Company U.S. Nuclear Regulatory 2301 Market Street Commission Philadelphia, PA 19101 Washir.gton, D.C. 20555 I' L -___ _ _ - _ _ _ _ _ _ _ _ _ _ _

7 i Charles W. Elliott, Esq. Gregory E..Dunlap,.Esq.- H Poswistilo, Elliott & Elliott Deputy General Counsel Suite'201 Commonwealth of 1101 Northampton Street Pennsylvania Easton,-PA 18042 17th Floor Harristown II-333 Market Street-Mr. Ralph Hippert Harrisburg, PA 17101 i -Pennsylvania Emergency Management Agency Robert L. Anthony B151 . Transportation P. O. Box 186 Safety Building Moylan, PA 19065 Harrisburg, PA' 17120

                                                                                                                                                                                                . Samuel J. Chilk, Secretary Michael B. Hirsch, Esq.                                                                                                    U. S. Nuclear Regulatory Federal" Emergency                                                                                                                     Commission Management-Agency                                                                                                      Washington, D.C.              20555 500 C Street, S.W.

Room 840' Docketing and Service Washington, D.C. 20472 Section l U.S. Nuclear Regulatory Theodore G. Otto, Esq. Commission-L Department of Corrections Washington, D.C. 20555 L ' Office of Chief Counsel P. O. Box 598 Adjudicatory Fil s (2) Camp Hill, PA 17011 Atomic Safety and Licensing Board Panel Docket l Angus Love,.Esq. U.S. Nuclear Regulatory 107 East Main Street Commission Norristown, PA 19401 Washington, D.C. 20555 l l l l i 1 Robert M. Rade'r

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