ML20247B764

Motion of Intervenor,Limerick Ecology Action Inc,To Reconsider/Stay/Suspend/Revoke Order Authorizing Issuance of Low Power OL for Limerick 2.* Consideration of Accident Mitigation Alternatives Imperative.Certificate of Svc Encl

ML20247B764
Person / Time
Site:	Limerick
Issue date:	07/13/1989
From:	Elliott C LIMERICK ECOLOGY ACTION, INC., POSWISTILO, ELLIOT & ELLIOT
To:	NRC COMMISSION (OCM)
References
CON-#389-8911 OL-2, NUDOCS 8907240200
Download: ML20247B764 (15)

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UNITED STATES OF AMERICA gggg NUCLEAR REGULATORY COMMISSION ygr Before the Nuclear Reculat>rv Commission

~89 JJL 17 P4 :42 In the Matter of

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Docket Nos. 50-352 Philadelphia Electric Company

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50-353

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(Limerick Generating Station,

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Units 1 and 2) )

)

MOTION OF INTERVENOR LIMERICK ECOLOGY ACTION, INC.

TO RECONSIDER / STAY / SUSPEND / REVOKE ORDER AUTHORIZING l

ISSUANCE OF LOW-POWER OPERATING LICENSE FOR LIMERICK UNIT 2 Intervenor Limerick Ecology

Action, Inc.

moves the Commission to reconsider, stay, suspend, or revoke its order of July 7, 1989 1/ authorizing the issuance of a low-power operating license for Limerick Generating Station, Unit 2,

and sets forth the following reasons in support thereof.

I.

The Commission's July 7, 1989 Order Was Erroneous As A Matter of Law In its July 7,

1989 Memorandum and Order justifying the issuance of a low power operating license for Limerick, the Commission:

(1) relied upon a 1985 licensing board authorization which predated the Third Circuit's decision in Limerick Ecoloav, Action. Inc.

v.

U.S.

Nuclear Reculatory Commission, E69 F.2d 719 (3d Cir. 1989) and (2) declined to grant the relief sought by the 1/ While the Order was issued on July 7, 1989, counsel for t

LEA still had not seen a copy of the order as of July 11, 1989.

When he was apprised on July 11, 1989 of the issuance of a low-power license through a routine automated computerized retrieval of news items relating to nuclear issues, he requested that NRC staff counsel telecopy a copy of the order to him.

LEA first received the order on that date.

8907240D00 890713 pD PDR ADOCK 05000352 0

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applicant in its alternative request for,an exemption from the -

requirements of 10 CFR. Part 51.2/

For the reasons set forth in our " Opposition of Limerick Ecology Action, Inc. to ' Applicant's Motion for Clarification of the Commission's Delegation of Authority And For Issuance Of.An Operating License,-

Or R

Alternatively, For An Exemption From. Any Procedural Requirement That A License For Limerick. Unit 2 Cannot Issue Until The Contention Remanded By The Third Circuit Is Resolved'"

(" LEA's.

Opposition"),3/ the continuing applicability of the requirements of NEPA, the Third Circuit remand, and the Commission's own I

regulations at 10 CFR Part 51 preclude any authorization of an l

operating license for Limerick Unit 2 at this time.

The Commission ignores these requirements, holding instead that a 1985 Atomic Safety and Licensing Board authorization to-the Director of Nuclear Reactor Regulation. for issuance of licenses for both units " remains unaltered and effective with 2/ "No exemption from any regulatory requirement is necessary for low power operation".

Memorandum and Order of July 7,

1989, slip op. at 13.

3/ We incorporate herein by reference thereto each of the arguments and reasons set forth in LEA's Opposition to. the Applicant's Motion.

We rely again upon each one of those arguments and reasons and urge the Commission to adopt them.

2

4 respect to low power testing".4/

Memorandum and order of Julv 7, 1989, slip op, at 13.

But that 1985 order predates, fails to consider in any way, and.is discredited by, the finding of the Third Circuit Court of Appeals in Limerick Ecoloav Action, supra, that the NRC violated the National Environmental Policy Act in licensing the Limerick facility.

In 'its

decision, the Third Circuit expressly concluded, inter alia, that "a decision with respect to [ severe accident mitigation alternatives]

could affect the final decision". Limerick Ecoloav Action, suora, 869 F.2d at 739; see i

also, id.,

at 738 ("it would seem, even on the Commission's own

terms, that a

failure to consider SAMDAs in the Limerick proceeding could affect the final decision, and therefore, that preclusion from consideration was an abuse of discretion").

The Commission may not, as it proposes, simply ignore the effect of this conclusion in its decision to issue a license for Limerick Unit 2 and rely wholly upon a 1985 authorization which i

4/ The authorization to which the Commission refers i

actually authorized issuance of full-power operating licenses

)

upon the Director of NRR making various requisite findings.

j While the Commission in this context refers only to the i

l authorization remaining " unaltered" and " effective" for low-power l

l testina, it articulates no reasoned basis for not concluding that i

the 1985 authorization is just as valid for full power operation.

1 If.the Commission intends to rely upon the 1985 authorization l

(issued without regard to the NEPA violation found by the Third Circuit Court of Appeals), it must recognize that such reliance implies that the 1985 authorization for full power operation is i

likewise

" unaltered" by the Third Circuit finding of NEPA violation.

We disagree.

The 1985 licensing authorization is indeed " altered" by the finding of NEPA violations, because the authorization was necessarily premised upon an erroneous conclusion that the requirements of NEPA were met.

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was erroneously premised upon purported' findings that the requirements of NEPA had been met. Under Commission case law, prior to issuing any license, the Director of Nuclear Reactor Regulation "must find that the Commission regulations, includina those imolementina NEPA have been satisfied". Pennsylvania Power and Licht Co.

(Susquehanna), ALAB-693, 16 NRC 952, 956 n.7 (1982). Those regulations have not been met. For example, the Commission's regulations at 10 CFR Part 51 require, inter alia, that "a

Commission decision on any action for which a final environmental impact statement has been prepared shall be accompanied by or include a concise public record of decision".

10 CFR Section 51.102(a).

Commission regulations require the record of decision to, inter alia,:

(1) identify all alternatives considered by the Commission in reaching the decision; (2) state that these alternatives were included in the range of alternatives discussed in the environmental impact statement; (3) state whether the Commission has taken all practicable measures within its jurisdiction to avoid or minimize environmental harm from the alternative selected, an if not, to explain why those measures were not adopted.

10 CFR Section 51.103.

-The Commission's decision to license Limerick Unit 2 --

whether based on a 1985 authorization erroneously founded upon incorrect conclusions that the NRC had complied with NEPA, or based on any other foundation -- completely fails to comply with 4

y these. requirements insofar.as they relate to-the consideration of l

. severe accident mitigation alternatives.

.Further, as we not'ed in LEA's Opposition, to authorize even low-power operation of a nuclear power reactor, the presiding q

officer at hearings on a license application is required to d

determine that the " requirements of' section 102 (2) (A) (C) and (E) of NEPA and the regulations in this subpart [A of Part 51] have been met. ".10 CFR Section 51.105 (a),. incorporated by reference in 51.106(a) and (b). See LEA's Opposition at:pp. 10.

If anything is clear in this proceeding, it is that NEPA's requirements have Dpl been met:

In sum,.by whatever route the NRC claims to have determined the environmental 1

impact of. Limerick, it has not succeeded, or attempted to' succeed, in convincing this Court that the procedural requirements of NEPA have been met.

869.F.2d at 731.5/

Indeed, put simply, in its order authorizing the issuance of a Unit 2 low power license' without first considering severe accident mitigation alternatives, the Commission persists in refusing to consider SAMDAs in its licensing decisions as ordered by the Third Circuit, and persists in refusing to comply with

.5/ It has been LEA's consistent position that to comply witn NEPA'and the Commission's regulations at Part 51, the Commission is required to prepare a supplemental or amended environmental statement which fully considers severe accident mitigation 4

alternatives, to circulate it for comment, to hold evidentiary I

hearings on the issue, and to fully consider severe accident mitigation alternatives at every stage of the decisionmaking process.

See, e.g.,

LEA Opposition, at pp 10-15.

5 1

1

L the requirements of the National Environmental Policy Act.6/

This action is errorieous as a matter of law.

II..The Third Circuit's Finding That The NRC Violated NEPA So Impairs the Validity of the Limerick Final Environmental Impact Statement That It Can No Longer Remain The Basis for Limerick Licenrina

)n In its Memorandum and Order, the Commission concludes that the " Third Circuit's decision regarding SAMDA consideration in no way impinges upon the validity of the existing FES as'it relates to low-power operation". Slip op. at p.6.

But the FES nowhere discusses the cost / benefit of low power operation, the risk of low-power operation as such, or the potential benefits of accident mitigation measures.

The Commission characterizes the FES as

" valid in all respects save one" (Memorandum and order, at p. 7) and concludes that the

" basic NEPA framework supporting ' Limerick facility operation remains in place". Id.

These conclusions are specious, i

and fly in the face of the Third Circuit's decision.

The requirement of NEPA to consider alternatives to the proposed action is no mere collateral or insignificant matter.

Instead, this requirement, which the Third Circuit found to have been violated by the NRC, is "the linchpin of the entire impact statement". Monroe County Conservation Council, inc.

v.

Volce, 6/ Indeed, the only

" consideration" of severe accident mitigation alternatives which has occurred in this proceeding is the convening of a prehearing conference in which the scope of the alternatives to be litigated has been discussed.

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472 F.2d 693, 697-8 (2d Cir. 1972).

Whether the facility as proposed by PECO enjoys an "overall" favorable cost-benefit ratio as the Commission claims is quite beside the point. The issue here is whether alternatives which might prove even better, to pose less health and financial risk, which might enjoy an more favorable cost-benefit ratio have been considered prior to acorovina operation of the facility as crocosed by PECO..

They have not been, and this failure violates NEPA, as the Court found.

Thus, the " basic NEPA framework" which the Commission claims still supports the issuance of a reactor operating license is missing its linchpin the consideration of alternatives mandated by the statute.

It is no wonder that the Court of Appeals stated that the NRC had not " succeeded, or attempted to

succeed, in convincing this Court that the procedural requirements of NEPA have been met".

Limerick Ecoloav Action,suora, at p.731, Thus, contrary to the Commission's July 7, 1989 Memorandum, the " basic NEPA framework" was never in place for Limerick license issuance.

III. The Requirements for a Stay / Suspension of Limerick Licensina Authorization While we urge the Commission to reconsider its July 7, 1989 Memorandum and Order, and believe it to be erroneous as a matter of law, LEA requests the Commission in the alternative to stay or suspend any authorization for licensing of Limerick Unit 2.

While the Commission has adopted the requirements of 7

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' k 'l Vircinia Petroleum Jobbers Association v.

Federal Power r

. Commission,. 2 59. F. 2d ' 9 21, 925 (D.C.

Cir. ' 1958) in' determining l ordinarily'whether to issue'a stay of a decision to authorize a nuclear reactor operating license,7/ that test is not applicable to a request for.a stay following a judicial remand.

Instead, the requirements for ' issuance of a. stay ' pending proceedings on remand are less stringent than those set forth in Vircinia Petroleum Jobbers, supra.

Public Service Co. of New Hamoshire (Seabrook Station, Units.1

,2 and 3 ), - CLI-77-8, 5'NRC 503 (1977). Where a ' litigant has prevailed - on a judicial appeal of an NRC decision and seeks a. suspension of the effectiveness of the NRC decision pending remand 8/, ' such a suspension is not-controlled by. the virainia Petroleum -Jobbers criteria

but, instead, is dependent upon a balancing of all relevant equitable.

considerations. Consumers Power Co.

(Midland Plant, Units 1 and 2),

ALAB-458, 7

NRC

155, 159-60 (1978)'.

Indeed, in such 7/ Under the virainia Petroleum Jobbers test (inapplicable here), the' balance of the following four factors.must favor the party seeking the stay:

(1) a strong likelihood of prevailing on the merits of the appeal; (2) irreparable harm to petit oner if a stay is not granted; (3) harm, if any, to other parties; (4) the public interest in grant or denial of a stay.

8/ This is the situation where, as here, the Commission's order purporting to authorize issuance of a license is in the wake of the decision of the Third Circuit Court of Appeals' finding that the Commission violated NEPA in its licensing decision.

8 1

s

-Q l circumstances, the "necative imoact' of the court 's decision olaces a heavy burden of Droof on' those ocoosino the stav". Ji_,

I at 7 NRC 160.

Thus, under Commission case law, LEA'is'under no burden ~of proof whatsoever to establish'its entitlement-to a stay. Instead,-

the Commission's decisions.' squarely. place the. burden of oroof

. upon the parties. opposing 'the stay. Nevertheless, we briefly discuss why the ' parties opposing a stay cannot. satisfy such a

" heavy' burden of-proof".

The. Commission's order' authorizes the operation and contamination of the Limerick nuclear reactor. facility as.

designed ' and proposed by Philadelphia Electric Co. without any consideration whatsoever of the severe accident mitigation alternatives which the Third Circuit has held-NEPA requires. This action ; by the commission constitutes immediate and irreparable harm to LEA and to the public.

NEPA is designed to influence the decision-

. making process; its aim is to make govern-mental officials notice environmental considerations and then take them into account. Thus, when a decision to which NEPA obligations attach is made without the in-formed environmental consideration that NEPA requires, the harm that NEPA intends to prevent has been suffered.

Commonwealth of Massachusetts v. Watt, 716 F.2 946, 952 (1st Cir.

1983)

The harm at stake is a harm to the environment, but the harm consists of the added risk to the 9

.m.

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a

. environment.that. takes place when. governmental' decisionmakers make up their minds without having.before'_them.an analysis...of the likely.

effects of their decision upon-the. environment..

-NEPA's. object.is to minimize that risk, the risk of, uninformed' choice [.]

Sierra Club et al.

v.' Marsh et al.,

872 F.2d 497, 1989 U.S.. App.

LEXIS.~4292 (1st Cir. March ~31, 1989).

Under

NEPA, the decisionmaker is required to consider

• environmental impact and alternatives.. t o. the proposed action 1

before acting, not after. 14 Under the circumst'ances.of this case, where the licensable activity has so far progressed /

without any consideration 9

whatsoever of severe accident mitigation alternatives as required by.NEPA,'the' harm which NEPA was intended to prevent is already occurring and can only worsen with operation and contamination of the reactor.

Indeed, the First Circuit's observations in Marsh and Watt acknowledge the practical effect of such actions:

9/

Since 1984, when the iss.ue was before the Atomic Safety and Licensing Board which unlawfully excluded the issue from the proceeding,.the construction of Limerick Unit 2 has progressed from approximately 30% complete to fully complete.

Already, the progression of activity without the consideration of SAMDAs that the law requires has grievously prejudiced consideration of these alternatives because the cost of implementation of such alternatives for fully constructed facilities is far greater than the cost for implementation at only partially completed reactor facilities.

See, e.g.,

NUREG/CR-4025,

" Design and Feasibility of Accident Mitigation Systems for Light Water Reactors", August 1985, pp.

3-26 to 3-77.

Low-power operation will not improve this situation -- it will only make it worse. To suggest, as does the Commission, that the illegality found by the Third Circuit is not relevant to low-power operation (Memorandum and Order of July 7, 1989, CLI-89-10, slip op. at 7,13) is simply incorrect.

10

~'

s Each of these-events represents a link in a chain of bureaucratic commitment that will become progressively harder to undo the longer it continues. Once large bureaucracies are committed to a course of action,. it isTdifficult to change that course -- even if.new, or more thorough,

_NEPA statements.are prepared and.the agency.is told to "redecide". It is this

' type of harm that plaintiffs seek to

' avoid and it is the presence.of this. type of harm that courts have said can merit an injunction in an appropriate case.

L Marsh, supra, quoting Watt, supra, 716 F.2d at.953.

1 Nothing in the NRC's conclusion that consideration of SAMDAs is not physically or economically foreclosed by interim operation l

(see Commission Memorandum and Order, CLI-89-10, slip op. at p.

12) minimizes this type of harm.

Further,_while the Commission's July 7 Order focuses on the allegedly "small" accident risk posed by interim operation, it nevertheless is a

risk that need not be endured without' consideration of mitigation alternatives. The Commission's own staff agrees that severe accident mitigation alternatives can not only reduce off-site consequences of' severe accidents, but can also reduce core damage and core melt frequency. See, e.g.,SECY-I 1

88-206, " Status of Mark I Containment Performance Evaluation",, Appendix I Mark I. Workshop Conclusions and Insights.

Thus, while the Commission focuses on the costs of delay, it fails to consider in any way the potential benefits of public health and economic risk reduction that could be obtained by mitigation consideration.

Consideration of mitigation prior to licensing is not only required by NEPA, but favors the public 11 i

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-4 interest as well.

IV. Conclusion For all of the above

reasons, LEA requests that the Commission reconsider, stay, suspend or revoke its July 7, 1989 Memorandum and Order.

POSWISTILO, ELLIOTT & ELLIOTT By:

Lx b bb +"$

Charles W.

Elliott 1101 Building Suite 201 1101 Northampton Street Easton, PA.

18042 (215) 258-2374 July 13, 1989 l

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UNITED STATES OF AMERICA' bCLKUD NUCLEAR REGULATORY COMMISSION W

Before the' Nuclear Reaulatory Commissiog g pg g

.In the Matter ofL

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Docket Nos. 50-3510CKEMU AL "Th N N" Philadelphia Electric Company

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50-353

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. Limerick Generating' Station,- ')

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(

Units 1 and 2).

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CERTIFICATE OF SERVICE The undersigned counsel. certifies that a true"and correct.

copy'of " Motion of Intervenor Limerick Ecology' Action,.Inc..to Reconsider / Stay / Suspend / Revoke Order Authorizing Issuance of Low-

' Power-Operating License-for Limerick Unit 2. has been served this

'14th day of !,~n !y, 1989 by first class' mail, postage prepaid on-the following persons:.

Thomas M.' Roberts,.

Commissioner Kenneth M. Carr U.S.-

Nuclear Regulatory-Chairman Commission U.S.

Nuclear Regulatory i

Washington,;D.C. 20555 Commission i

Washington,D.C. 20555.

James R. Curtiss Commissioner Samuel J.

Chilk U.S. Nuclear Regulatory Secretary Commission U.S.

Nucle'ar Regulatory Washington, D.C.

20555 Commission Office of the Secretary Kenneth C. Rogers Commissioner Morton B. Margulies, Esq.

U.S. Nuclear Regulatory Chairman, Atomic Safety and' Commission Licensing Board l

Washington,D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C.

20555 l

l n'

l Mr. Ralph Hippert Frederick J.

Shon Pennsylvania Emergency

{

Atomic Safety and Licensing Management Agency j

Board Panel B151 Transportation Safety l

U.S.

Nuclear Regulatory Building Commission

arrisburg, PA. 17120 i

Wantington, D.C.

20555 i

Michael B. Hirsch, Esq.

{

Dr. Jerry Harbour Federal Emergency Management Atomic Safety and Licensing Agency Board Panel 500 C.

Street, S.W.

l U.S. Nuclear Regulatory Room 840 Commission Washington, D.C.

20472 Washington, D.C.

20555 Theodore G.

Otto, Esq.

Department of Corrections Atomic Safety and Licensing Office of Chief Counsel j

Board Panel P.O.

Box 598 U.S.

Nuclear Regulatory Camp Hill, PA. 17011 Commission Washington, D.C.

20555 Docketing and Service Section U.S.

Nuclear Regulatory Joseph Rutberg, Esq.

Commission Ann Hodgdon, Esq.

Washington,D.C.

20555 Counsel for NRC Staff Office of the General Counsel U.S.

Nuclear Regulatory Mark J.Wetterhahn, Esq.

Commission Robert C.

Rader, Esq.

Washington, D.C.

20555 CONNER AND WETTEMIAHN, P.C.

1747 Pennsylvania Ave., N.W.

j Atomic Safety and Licensing Washington, D.C.

20006 l

Appeal Panel U.S.

Nuclear Regulatory David Stone Commission Limerick Ecology Action, Inc.

Washington, D.C.

20555 P.O.

Box 761 Pottstown, PA.

1944 Edward J.

Cullen, Esq.

Philadelphia Electric Co.

Robert L. Anthony 2301 Market Street Box 186 i

Philadelphia, PA. 19101 Moylan, PA. 19065 Gregory Dunlap, Esq.

Office of the General Counsel Commonwealth of Pennsylvania P.O.

Box 11775 Harrisburg, PA.

17108 Angus Love, Esq.

107 E. Main Street Norristown, PA.

19401

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Frank:R. Romano v

Chairman-Air..andi:. Water. ~ Pollution

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61. Forest' Avenue'"

' Ambler, PA.:19002>

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1 Robert:J. Sugarman, Esq.

.101; N. '. Broad. Street.

16th Floor-

. Philadelphia, PA.=-.19107' n

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Charles W..Elliott' 1

1101 Northampton. Street "I

Easton, PA. 18042 i

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