ML20247B394

NRC Staff Response to Rl Anthony Request for Hearing & for Intervention.* Commission Should Deny Anthony Request Due to Anthony Interest Not within Scope of Remand.W/Certificate of Svc

ML20247B394
Person / Time
Site:	Limerick
Issue date:	07/13/1989
From:	Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#389-8898 OL, PLED-890713, NUDOCS 8907240108
Download: ML20247B394 (9)

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hff' ca: pro UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION *89 JJL 14 P1 :48 BEFORE THE COMMISSION -t _

In the Matter of )

PHILADELPHIA ELECTRIC COMPANY Docket Nos. 50-352-OL 50-353-0L (Limerick Generating Station Units 1 and 2)

NRC STAFF RESPONSE TO ROBERT L. ANTHONY'S REQUEST FOR A HEARING AND FOR INTERY:NTION t

l Ann P. Hodgdon I Counsel for NRC Staff l

July 13, 1989 l I

I 8907240108 890713 DR ADDCK 0500 2 3 507 i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

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PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352-OL 50-353-0L' (Limerick Generating Station Units 1 and 2)

NRC STAFF RESPONSE TO ROBERT L. ANTHONY'S REQUEST FOR A HEARING AND FOR INTERVENTION i

Ann F. Hodgdon Counsel for NRC Staff 1

July 13, 1989 I L----_------_-----_---- -

July 13, 1989 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

< In. the Matter of )

PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352-OL

) 50-353-OL (Limerick Generating Station )

Units 1 and 2) )

NRC STAFF RESPONSE TO ROBERT L. ANTHONY'S REQUEST FOR A HEARING AND FOR INTERVENTION I. INTRODUCTION On June 23, 1989, Robert L. Anthony filed a request for a hearing and an opportunity to participate as an intervenor on Philadelphia Electric Cnmpany's application for a license to operate the Limerick Generating Station, Unit 2. For the reasons discussed, the Commission.should deny Mr. Anthony's' request.

II. BACKGROUND Mr. Anthony states in his request that he only became aware of Philadelphia Electric Company's application to operate Unit 2 after seeing a copy of the Commission's order of June 8,1989, concerning Philadelphia Electric's request tnat the Commission clarify the status of Unit 2 with regard to the issuance of an operating license. Request at 1.

Mr. Anthony had, however, participated as an intervenor in the operating license proceedings for Units 1 an 2, representing himself and Friends of the tarth in the Delaware Va:1ey (F0E). See, Philadelphia Electric Company (L1merick Generating Station, Units 1 and 2), LSP-82-43A,15 NRC 1423, 1440 (1982). Mr. Anthony sought and was granted intervention and, b__________.__________________

[

L in fact, participated on two matters regarding safety and emergency planning in connection with the proposed operation of Units 1 and 2. He did not raise issues regarding severe accident mitigation design alterna-tives. Both of the contentions raised by Mr. Anthony /F0E were decided in favor of Philadelphia Electric Co. LBP-84-31, 23 NRC 446, 464-93 (1984)

(Second Partial Initial Decision), aff'd M relevant py t, ALAC-819, 22 NRC 681 (1985); LBP-85-14, 21 NRC 1219, 1236-44, 1250-69 (1985) (Third Partial Initial Decision), aff'd M relevant part, ALAB-836, 23 NRC 479 (1986). Mr. Anthony did not seek judicial review ot these decisions.

III. DISCUSSION A. Mr. Anthony's interest is not witnin the scope of the remana.

Although Mr. Anthony intervened in the proceedings leading to authorization of operation of Limerick Units 1 and 2, he was not a party to the appeal decided by the Third Circuit Court of Appeals in Limerick Ecology Action v. NRC, 869 F.2d (3rd Cir. 1989). It is also significant that he was not a sponsor of either of the two issues remanded by the

- ' Third Circuit Court of Appeals for further consideration by the Commission, the two remanded issues concern evacuation of Graterford prisoners and severe accident mitigation design alternatives (SAMDA's).

Mr. Anthony, in the instant request, is concerned about the emergency plan for Limerick. Request at 2-3. In his request, Mr. Anthony has shown no connection between the remanded issues and his concerns nor any other reason for the Commission to consider his request at this time. In short, he has shown no interest in this proceeding which could be affected by the outcome on the two narrow remanded issues.

[ m B.- Mr. Anthony's request does no: meet the Commission's requirements for reopening a closed record.

Viewed in its best light, Mr. Anthony's request might be treated as

<, a motion to' reopen the record. The Commission's regulations in 10 C.F.R.

. 9 2.734 set forth criteria to.be satisfied by persons seaking to reopen a closed record. Mr. Anthony's request does not even address, much less satisfy, any'of these criteria.

1. Mr. Anthony's request does not satisfy 10 C.F.R. G 2.734(a).

Section 2.734(a) states that a motion to reopen will not be granted unless it (1) is timely, (2) addresses a significant safety or

- environmental _ issue, (3) demonstrates that a materially different result would_have been likely had the newly proffered evidence been considered.

Mr.- Anthony's request might be timely if there were some nexus between it and the occasion for its filing, namely, documents related to the vemand of the SAMDA _ issue. ' However, Mr. Anthony's concerns center not on these issues but on matters that were litigated and decided against him and in favor of the Licensee and on which he did not seek judicial review. They

- focus on matters on which Mr. Anthony might have sought to reopen at any time: for the most part allegations concerning increased traffic congestion. Request at 2-3. Thus, Mr. Anthony's request is not timely.

Similarly, Mr. Anthony's request fails to address the criteria of 10 C.F.R. 5 2.734(a)(2) and (3), regarding the significant of the safety or environmental issue raised and the demonstration that consideration of the newly proffered evidence would likely have resulted in a different outcome. -Nor is it at all clear from the request that either of these two criteria would have been satisfied hao they been addressed, as Mr. Anthony's request focuses on a matter already litigated

without any suggestion of how his allegations relate to the decisions that leo to authorization of Limerick. operation.

2. Mr. Anthony has not accompanied his request with the required affidavits.

Section 2.734(b) requires that motions to reopen be accompanied by affidavits to show that the criteria of 10 C.F.R. 9 2.734(a) are satis-fied. Mr. Anthony has provided no such affidavits. Thus, Mr. Anthony has offered nothing to demonstrate that there is any basis for his request to reopen.

3. Mr. Anthony has not addressed the criteria for nontimely contentions.

Section 2.734(d) requires that a motion to reopen that relates to a contention not previously in controversy satisfy the requirements for nontimely contentions in 6 2.714(a)(1)(i) through (v). To the extent that Mr. Anthony is seeking to participate on SAMDA's, a matter not previously in controversy, his request must satisfy 6 2.73a(d). However, Mr. Anthony does not even address the criteria in 6 2.714(a)(1)(i) through (v), much less satisfy them. Further, Mr. Anthony has not submitted contentions but has merely indicated areas of concern.

C. Mr. Anthony lacks the standing to request a stay.

Lacking standing to participate as of right concerning the matters remanded by the Third Circuit Court of Appeals, Mr. Anthony also lacks the standing to seek a stay ot Limerick Unit 2 operation. Mr. Anthony states that he seeks a " freeze on fuel loading" or any operation of Unit 2.

Further, Mr. Anthony has not addressed the criteria for stays set furth in 10 C.F.R. 5 2.788. His request for a stay of Limerick Unit 2 opecation should be denied.

l L________---___----______________ _ _ _ _ _ _ _ _ _ _

IV. CONCLUSION For-the reasons discussed.above, the Commission should deny Mr.

Anthony's request.

Respectfully submitted, y -l t Lt'll i, 'T~ d ( lC _. JE f

Ann P. Hodgdon Counsel for NRC Staff Dated at Rockville, Maryland this 13th day of July, 1989.

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.m UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION.gg yg 34 p3 ;49 BEFORE THE COMMISSION s

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.d.1 DOCy 1 % -

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 "NRC STAFF RESPONSE TO ROBERT L.

ANTHONY'S REQUEST FOR A HEARING AND FOR INTERVENTION" in, the above-captioned proceeding have been served on the following by deposit in the

- United States mail, first class, or as indicated by an asterisk through

' deposit in the Nuclear Regulatory Commission's internal mail system, this 13th' day of July,1989:

Samuel J. Chilk (15)* David Stone Office of the Secretary Limerick Ecology Action, Inc.

U.S. Nuclear Regulatory Commission P.O. Box 761 Washington, D.C. 20555 Pottstown, PA .19464 Morton B. Margulies, Chairman

• Thomas M. Gerusky Administrative Judge Bureau of Radiation Protection Atomic Safety and Licensing . Dept. of Environmental Resources U.S. Nuclear Regulatory Commission Third and Locust Sts., 5th Floor

. Washington, D.C. 20555 Harrisburg, PA 17120 Dr. Jerry Harbour *

- Frederick J. Shon, Esq.

• Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Atomic Safety and Licensing Board Troy B. Conner, Jr., Esq. Panel * (1)

Conner & Wetterbahn, P.C. U.S. Nuclear Regulatory Commission 1747 Pennsylvania Avenue, N.W. Washington, D.C. 20555 Washington, D.C. 20006 Gregory Dunlap, Esq.

Charles E. Rainey, Jr., Esq. Deputy General Counsel Chief Deputy City Solicitor Office of General Counsel City of Philadelphia 333 Market Street, 17th Fir.

1 Reading Center, 5th Floor Harrisburg, PA 17120 Philadelphia', PA 19107

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1 David Wersan, Esq. Edward G. Bauer, Jr., Esq.

Assistant Consumer Advocate Vice President and General Counsel Office of Consumer Advocate Philadelphia Electric Company 1425 Strawberry Square 2301 Market Street Harrisburg, PA 17120 Philadelphia, PA 19101 Charles W. Elliott Atomic Safety and Licensing i

Poswistilo, Elliott & Elliott Appeal Board Panel * (8) 1101 Northampton Street U.S. Nuclear Regulatory Comrrission Suite 201 Washington, D.C. 20555 Easton, PA 18042 Adjudicatory File * (2)

Office of the Secretary

• Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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