ML20247B615

Memorandum & Order.* Grants Commonwealth of PA Motion Requesting Order Confirming Commonwealth Withdrawal of Petition to Intervene & Proposed Contentions & Terminating Proceeding.W/Certificate of Svc.Served on 890720

ML20247B615
Person / Time
Site:	Peach Bottom
Issue date:	07/19/1989
From:	Cole R, Frye J Atomic Safety and Licensing Board Panel
To:	PENNSYLVANIA, COMMONWEALTH OF
References
CON-#389-8929 88-569-06-OLA, 88-569-6-OLA, OLA, NUDOCS 8907240162
Download: ML20247B615 (6)

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DOCKEIED UNITED STATES'OF' AMERICA.

NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges QU K ..

John H Frye, III, Chairman M g!, ,

Glenn O. Bright Richard F. Cole SERVED J[jl 2 0 1989 In the Matter of. )

) Docket Nos. 50-277-OLA Philadelphia Electric Company ) 50-278-OLA

)

(Peach Bottom Atomic Power ) ASLBP No. 88-569-06-OLA Station, Units 2 and 3) )

) July 19, 1989 MEMORANDUM AND ORDER (Terminating Proceeding)

On March 31, 1987, NRC Staff issued an order shutting down the Peach Bottom facility principally because of the inattentiveness of control room personnel. Philadelphia Electric Company (PECo) applied for a license amendment which would permit it to implement certain corrective actions in response to that order. This proceeding concerns the Commonwealth of Pennsylvania's request for a hearing on that

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application.

In an unpublished March 27, 1989, Memorandum and Order, we recited the history of this proceeding leading up to a i settlement agreement between PECo and the Joroonwealth which was then under Staff review. We observed there that:

1 In an [ unpublished] April 1, 1988, Order the Commission noted that the [ Commonwealth's petition) raised some issues which might not be within the 3

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scope of . the proceeding and opined that " ...the l Commonwealth's supplement to its petition wherein 0907240162 890719 1/

PDR ADOCK 05000277 60 o PDR

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2 its contentions and the specific bases for them are set forth [might] shed greater light'on whether the Commonwealth wishes to litigate any matters that fall within the scope of the amendments under consideration...". For this reason, the Commission directed that a Board be established to consider whether the petition should be granted.

We also noted that because of the ongoing settlement negotiations, although the Commonwealth filed contentions, no responses were filed and the issue of concern to the Commission was not joined. The Commonwealth and PECo reached an agreement settling their differences and submitted the agreement to Staff for its review.

In its monthly status report of June 30, Staff enclosed a copy of a letter from the Region I Administrator to PECo of June 27. In that letter, the A .ministrator confirmed the commitments made in the settlement, pledged Staff's support in the termination of the matters pending before this Board and the U.S. Court of Appeals for the Third Circuit, and noted that any changes to the plant procedures, FSAR, or Technical Specifications must be made in accord with NRC regulations.

The letter stated that the NRC Staff will not approve certain changes unless it determines that the change ". . .will maintain and not detract from the existing safe operation of Peach Bottom." The letter also stated that the Staff considers that it has full authority to "

. . . modify or release any or all provisions of the Agreement at any time..." should a conflict arise with NRC requirements.

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In an unopposed motion of June 29, the Commonwealth

... requests that the Board enter.an Order:

a. confirming the Commonwealth's withdrawal of its petition to intervene and its proposed contentions; and

b. terminating the proceeding.

In support of its motion, the Commonwealth cites Pacific Gas and Electric Co. (Humbolt Bay Power Plant), LBP-88-4,'27 NRC 236, 238-39 (1988); Portland ~ General Electric Co. (Trojan.

t Nuclear Power Plant), ALAB-796, 21 NRC 4, 5 (1985); Rochester-Gas and Electric Coro. (R.E. Ginna Nuclear Plant), LBP-84-34, 20 NRC 769, 770.(1984); Public' Service Electric and Gas Co.

(Hope Creek Generating Station), LBP-85-6A, 21 NRC 468 (1985) ;

s and Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), LBP-85-44, 22 NRC 816, 817 (1985).

The Commonwealth is correct that the cited cases stand for the ~ proposition that, once contentions are withdrawn, there is normally no reason to continue a proceeding. The Commonwealth overlooks, however, the fact that the proceeding should be dismissed only where no serious safety or environmental issue demands an independent Board inquiry.

ALAB-796; LBP-85-4, suora. Indeed, long standing Commission l

policy requires boards to review and resolve such issues on  !

the record rather than permitting less formal resolution of them elsewhere. _ Consolidated Edison Comoany of New Yor)q (Indian Point Nuclear Generating Station, Unit 3), CLI-74-20, 8 AEC 7, 8-9 (1974); Pennsylvania Power and Licht Co. et al.

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l (Susquehanna Steam Electric Station) 13 NRC 550 (1981)

(Concurring opinion of Mr. Salzman) ; 10 CFR S 2.760a. And the Commission has acted to prevent board review only where the issues were under active scrutiny by the Commission j itself. Cincinnati Grs and Electric Co. et al. (Wm. H. Zimmer Nuclear Power Station), CLI-82-20, 16 NRC 109 (1982).

On July 6, counsel for PEco furnished copies of the two agreements to us. We have reviewed them and find that the agreement concerning the provi~ ion of information to the Commonwealth by PEco does not appear to raise serious issues within the Commission's jurisdiction. The other agreement  :

concerns matters within the jurisdiction of the NRC. It i requires PECo to take certain actions which will require the review and approval of the NRC Staff. Indeed, this agreement recognizes this fact and recites that its interpretation and '

enforcement is exclusively within the Commission's jurisdiction. The Region I Administrator, in his June 27 I letter confirming the agreement has, as noted above, advised  !

the Commonwealth and PECo that Staff reserves its right to review and approve any changes called for by the agreement, as well as the right to modify or release any of its provisions. We would be most reluctant to permit an agreement ,

1 calling for a licensee to take actions of the cort called for i

here without recognizing the Commission's paramount l l

jurisdiction. That recognition is clearly set cut in both the i l

agreement and in Region I's June 27 letter. Consequently we I

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'5 conclude that the agreement raises : no serious issue'which warrants further inquiry.

The Commonwealth's motion is granted.

l It is so ORDERED L

Atomic. Safety and Licensing Board

~

Richard F. Cole ADMINISTRATIVE JUDGE Glenn O. Bright.*

ADMINISTRATIVE JUDGE hn H hye, III, Chairman A INISTRATIVE JUDGE Bethesda, MD July 19, 1989

• Judge Bright concurs in the result. He was unavailable to review and sign this Memorandum and Order.

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UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION In the Matter of I i

PHILADELPHIA ELECTRIC COMPANY l Dncket No.(s) 50-277/278-OLA i

(Peach' Bottom Atomic Power Station. I Units.2 and 3) I CERTIFICATE OF SERVICE I hereby certify that copies of the foregoino LB M60(TERMINATING PROCEEDIN8) have been served upon the followine persons by U.S. mail. first class, except 4 as otherwise.noted and in accordance with tho requirements of 10 CFR Sec. 2.712.

Administrative Judos Administrative Judae Glenn 0. Bricht Richard F. Cole

' Atom'. Satetv and Licensino Board Atomic Safety and Licensino Board =

U.S. Nuclear Reculatory Commission U.S. Nuclear Regulaterv Commission Washincton. DC' 20555 Washinoten. DC 20555 Administrative Judoe Ann P. Hodadon. Esc.

John H. Frve. III, Chairman Attorney Atomic Safety and Licensino Board Office tt s?9 General Counsel U.S. Nuclear Raoulatory Commission U. S. duclear Reculatory Commission Washington, DC 20555 Washington.. DC 20555 Donald P. Irwin. Esc.- William T. Coleman. Esc.

Attornev O'Melveny and Myers Hunton and Williams 555 13th Street. N.W.

707 East Main Street. P. O. Box 1535 Washinoton. DC 20004 Richmond., VA 23212 ll' Timothy D. Searchincer. Esc. Assistant Counsel Deputy Genera.1 Counsel Richard P. Mather. Esc.

Office of General Counsel Department of Environmental Resources Commonwealth of Pennsylvania Commonwealth of Pennsylvania 333 Market Street 505 Executive House. P.O. Box 2357

'Harrisburo. PA 17101 Harrisburo,. PA 17120 Euoene J. Bradley. Esc.

Philadelphia Electric Comoany l 2301 Market Street Philadelphia.. PA 19101 Dated at Rockville. Md. this

-20 day of July 1969 Office hf the Secretary of the Commission L ______ _ _ _ _ . - - . - - _ - - - - - - - - - - - - - - - -- - - - - - - - - - -- - -- - - - - - ' - - - "