ML20248D711

Response of Intervenor Limerick Ecology Action,Inc to Memorandum & Order of Commission Dtd 890726.* Commission Order Fails to Provide Intervenor Adequate Time for Response & Should Therefore Be Revoked.W/Certificate of Svc

ML20248D711
Person / Time
Site:	Limerick
Issue date:	08/02/1989
From:	Elliott C LIMERICK ECOLOGY ACTION, INC., POSWISTILO, ELLIOT & ELLIOT
To:	NRC COMMISSION (OCM)
References
CON-#389-8986 OL-2, NUDOCS 8908110117
Download: ML20248D711 (11)

Text

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UNITED STATES OF AMERICA

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NUCLEAR REGULATORY COMMISSION

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Before the Commission GFF u i

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E s t. M In the Matter of

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Docket Nos.

50-352_ g - [

PHILADELPHIA ELECTRIC CO.

)

50-353

)

(Linerick Generating Station,

)

Units 1 and 2)

)

)

)

RESPONSE OF INTERVENOR LIMERICK ECOLOGY ACTION, INC.

10 MEMORANDUM AND ORDER OF COMMISSION DATED JULY 26, 1989 Intervenor Limerick Ecology Action, Inc.

(" LEA") responds to i

the July 26, 1989 Memorandum and Order cf the Commission as I

follows:

4 I. The Commission '.s Order Falls, to Provide Intervenor Ad, ectuate Time and Oncortunity for A Response The Conmission's Order purports to require the parties, including

LEA, to analyse five complex factual issues /

l involving, inter alia, (1) the occupational exposure involved in installation of severe accident mitigation design alternatives despite the fact that the alternatives to be considered is in 1/ These five issues are set forth on page 6

of the Commission's Memorandum and Order.

They

include, just for

[

example, the " incremental environmental effect of generating non-nuclear replacement energy equiva12nt to one fuel cycle's energy l

production by Limerick Unit 2".

As we note more fully in the

text, the issuec posed are complex and involve highly controversial matters of dispute within the technical community.

1 8900110117 B$hra I

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A dispute; 2/

(2) the incremental environmental effecte from the risk of severe accidents of operation with no SAMPAs in place, when the quantification of such risk is an issue yet to be litigated in the course of the hearings on severe accident mitigation; (3) environmental-effects of non-nuclear energy production, which is a highly complex issue which cannot possibly be fairly analyzed and examined in the time period provided by the Commission for response; (4) dollar cost of delay in starting Unit 2,

when the financial information necessary to evaluate such delay has not been provided in this case, and is t

unavailable to intervenor at the present time; (5) whether SAMDA l

2/ Indeed, the Commission requests various " evaluations" in the face of its refusal to permit consideration of any SAMDAs other than those which the Appeal Board noted were supported by a particular NRC staff consultant. study. The impropriety of this limitation has now been exacerbated even further by a licensing board Memorandum and Order of July 18, 1989 (LBP-89-19) which refuses to allow to be litigated in this proceeding numerous other SAMDAs which supported by expert opinion, were ider'.ified to the licensing board prior to the Third Circuit appeaA, and which were even made part of the joint appendix before the Third Circuit ("the non-litigable SAMDAs").

Despite the refusal to allow these SAMDAs to be litigated, the licensing board states I

that " staff is expected to consider the SAMDA's approved (for litigation in the order], under its NEPA obligation, alocq with any subsecuent undatina to the studies that the. Appeal Board found orovided basis and.specid city for the contention.

Subsecuentiv developed information that further sanoorts or alters the studies is relevant and should be considered." LBP 19, slip op, at 8.

Are the " evaluations" requested by the July 26 Order to include consideration of the non-litigable SAMDAs which must be evaluated by the NRC Staff but which the commission has deemed oatside of the scope of this proceeding?

If not, the

" evaluations" will be inadequate and the failure to actually consider in the licensing issuance decisionmaking the non-litigable SAMDAs also violates NEPA.

If the evaluations will.

consider these non-litigable SAMDAs, then LEA has improperly been excluded from a meaningful opportunity to participate in the l

consideration of such SAMDAs in violation of NEPA.

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installation will be " foreclosed" by full power operation, when the scope of SAMDAs t) be considered is in dispute.

Despite the complexity of the factual issues

involved, despite the lack of available information necessary to provide an adequate response on these matters, despite the unavailability or LEA's consultant to address these matters 3/, despite the absence of any discovery on the issues in this case, and without any l

opportunity for

hearing, the Commission's order purports to l

require a response within four (4) business days.

Such an order is blatantly calculated to preclude an effective response by LEA.

Indeed, the order appears to be l

calculated to " build a record" in support of issuance of a full-power operating license for Limerick Unit 2 without adequate opportunity for LEA to prepare its views and to investigate the complex factual issues raised by the Commission's order. Indeed, as we urge more fully below, such an order is unfair and unlawful, deprives LEA of a meaningful opportunit; to be heard, and is a back-door attempt to avoid full National Environmental Policy Act consideration of the issues raised by the Order prior to full-power licensing in summarily treating them in the context of "immediate effectiveness" comments.

LEA cannot possibly respond meaningfully in the time period permitted by the Commission's Memorandum and Order; indeed, LEA 3/

At the time of the Commission's order and at this writing, LEA's primary consultant, Mr. Steven Sholly, has been in Cambridge, Massachusetts attending the Massachusetts Institute of Technology Individual Plant Evaluation Primer course.

He is not expected to return until August 1, 1989.

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'.believess it cannot, meaningfully _ respond to the issues raised-without-opportunity for discovery in this case, and ' time for

' investigation.4/

For'these reasons, the Commission must revo?e that ' portion. of the Memorandum and 'Ordert which purports to require

" comments" by August.

2,

1989, and LEA-afforded an opportunity to. conduct. discovery and obtain the necessary information'for a meaningfill-respon.=e.

II.

The Commission's order is Unlawful.Because it l.

Deprives LEA of an Opportunity for Hearing On L

Material' Factors Relied Upon By the Commission In Makina A Licensina Decision for Limerick i

Me Commission's Memorandum and Order make; clear that it considers the issues raised by its July. 26 Memorandum and Order to be material to its determination of whether to issue a full-power operating license to Limerick Unit 2.5/

Nevertheless, because of-the unlawful prior exclusion of the SAMDA issue from 4/ Obviously, LEA's position is qualitatively different from that of the z.;plicant or the-NRC staff. The applicant has in'its possession all of the information~ necessary to prepare a

response; the NRC staff may obtain it from the. applicant upon demand pursuant to itG regulatory powers.

LEA, however, must obtain the information through discovery.

No adequate opportunity has been afforded to conduct any discovery on the issues raised by the Commission's July 26 Order.

5/

See e.cr., Memorandum and Order, slip op. at 5 ("In order j

.to determine whether NEPA requires that the plant be kept out of operation until the completion of the litiga' tion, the Commission

'must determine...." and id. ("The Commission will evaluate this question in its immediate effectiveness review of the Limerick Unit 2' license".)

As the Court noted in Union of Concerned Scientis_ts v.

U.S.

Nuclear Reaulatory Commission, 735 F.2d 1437 (D.C.

Cir.

1984), section 189 of the Atomic Energy Act which statutorily affords the right to a

hearing "does not

]

differentiate between the ' authorization' and the ' issuance' of a license for purposes of guaranteeing a hearing on request". 735 F.2d at 1442.

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the proceeding,.the unlawful limitation on the scope of the litigation implied by the Commission and licensing board orders on the remanded SAMDA issue, and the Commission's can litigation conduct, there has been absolutely no opportunity for hearing on

~

the issues raised by the Commission's order in this proceeding.

There have been no hearings on these matters. There has been no discovery. There has been no opportunity to present evidence, or to cross-examine witnesses.

Indeed, the Commission's order requesting " evaluations" or " comments" does not even require that the information be provided under oath.

The opportunity to provide

" comments" is not the opportunity for hearina upon request that is required by section 189 of the Atomic Energy Act, 42 U.S.C.

Section 2239.

This failure to afford opportunity for formal hearings on these issues is unlawful and violates Section 189 of the Atomic Energy Act,

see, e.a.,

Un' ion of Concerned Scientists v.

U.S.

Nuclear Reculatory Commission,

suota, n.5, violates Commission regulations and rules of practice, violates the Administrative Procedure Act, and as we discuss below, also s

violates the National Environmental Policy Act.

III. The Commission's Order Violittes NEPA As we noted above, the Commission proposes to treat the complex issues raised in the Memorandum and Order in an extremely truncated, summary fashion without opportunity for hearing in the context of " comments" for immediate effectiveness review under the Atomic Energy Act.

But even worse, the issues which the 5

L

Commission proposes to resolve without hearing, or any other procedural safeguards, cr further opportunity for LEA participation are also NEPA

issues, which relate to the environmental effect of facility operation, environmental risk of operation with and without the implementation of severe accident mitigation alternatives, and cost / benefit analyses of operation and delay. 6/

The Commission again proposes to resolve these

issues, relating to NEPA and material to license issuance, prior to the full consideration which NEPA recuires and Drior to the conclusion of the hearinos contemplated by the remand mandate of the Third Circuit Court of Acceals.7/

The Commission's Memorandum and Order to the extent it purports to treat these issues prior to hearing, prior to the preparation of an amended or supplemental environmental impact statement, and without compliance with the requirements of NEPA and the Commission's own regulations implementing NEPA is unlawful and must be revoked.

6/ We note also in this context that the Third Circuit refused to find that Atemic Energy Act review of severe accident issues was the "functieaal equivulent" of NEPA requirements. See, Limerick Ecolouv sgjon.

Inc.

v.

U.S.

Nuclear Reculatory

_ Commission, 869 F.t; 719, 730, 731, n.10 (3d Cir. 1989) 7/ We deem it unnecessary to repeat here at length again, for the third time since the Third circuit's remand of these issues to the agency, the arguments we have previously raised in LEA's

" Opposition of Limerick Ecology

Action, Inc.

to

' Applicant's Motion for Clarification of the Commission's Delegation of Authority" and in Motion of Limerick Ecology Action, Inc. to Reconsider / Stay / Suspend / Revoke Order Authorizing

+

Issuance of Low-Power Operating License for Limerick Unit 2".

We adopt and incorporate those arguments here.

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III. The Commission's Ouestions Are Incomplet L 3

Thel Commission's July ' 2,-

1989 Memorandum and Order ' poses five' areas of inquiry.

We have already indicated why LEA cannot respond to those questions in the ' extremely abbreviated : time frame, provided,.and why the Commission's order is. otherwise unlawful.

But we also believe that the areas of inquiry posed are incomplete, and fail to establish an adequate basis for-interim licensing prior to NEPA compliance in any event.

For

example, the areas of inquiry fail.to take into consideration the socio-economic risks of severe accidents at Limerick..They further appear to contemplate a comparison of-the

" incremental environmental effects from the risk of severe accidents of' operation of Limerick Unit l" with the " incremental' environmental effect of ceneratina non-nuplear replacement' enerav". Memorandum and Order, slip op. at

6. While we believe that. raising such matters simply (and improperly) mixes apples and oranges, we also note.that it is. improper to consider the entire environmental effect of non-nuclear replacement energy I

production while only considering the risk of severe accidents at

(

Limerick.

If a comparisen is to be made, it should be on the I

basis of the environmental effect of the entire fuel cycle implied by Limerick operation for one ful cycle (e.g.,

f l

environmental effect of uranium mining for the Limerick core for j

L' one fuel cycle, effects of radon releases from uranium mill tail:'ngs, the environmental effects of low and high level radioactive waste

disposal, risks of transportation of 7

l l.

i u

radioactive materials relating to Limerick operation, etc.).

The areas of inquiry should also include whether there is a present negd for the generating capacity for Limerick for one fuel cycle.

For example, it is LEA's understanding that the Applicant proposes to shut down a

presently existing and operating non-nuclear facility, the "Cromby" generating station, and substitute Limerick capacity for Cromby capacity.

These factors should also be considered.

In addition, we deem it improper for the Commission to consider the cost cf delay in starting Limerick Unit 2.

The delay in licensing was occasioned by the conduct of the Applicant and the Commission in refusing consideration of SAMDAs until the j

Third Circuit so ordered. Any hardship or loss created by any delay resulting from this belated compliance with law cannot be considered for NEPA purposes.

IV. Conclusion For all of the foregoing

reasons, the Commission's Memorandum and Order of July 26, 1989 should be revoked.

POSWISTILO, ELLIOTT & ELLIOTT

' $~ " ' ' ~,,~ ) / Clg-

By:

Charles W.

Elliott 1101 Northampton Street Easton, PA.

18042 (215) 258-2374 9-8 l

i

-I

' nLVLiiT UNITED STATES OF AMERICA-M NUCLEAR REGULATORY COMMISSION u

- Commissiott E -2 P12:29~

Before-the Nuclear Reaulatory

.ao 00CM W ', ' */

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In;-the' Matter of

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). Docket Nos. 50-352 W

i Philadelphia Electric Company

).

50-353

. ~

)

(Limerick Generating Station,- )

. Units 1 and'2)-

.)

u 1.

c CERTIFICATE OF SERVICE The undersigned counsel certifies that'a'true and correct copy of." Response of-Intervenor Limerick' Ecology Action, Inc. to~

Memorandum and Order of Commission Dated July 26, 1989" has been served.this'Ist... day of August, 1989.by first class mail, postage prepaid,;-except where by. Federal Express. as marked with an asterisk,. on the foll'owing persons:

Thomas M.

Roberts, Commissioner Kenneth M.

Carr U. S.-

-Nuclear Regulatory Chairman Commission U.S.

Nuclear Regulatory Washington, D.C.

20555 Commission Washington,D.C. 20555 James R.-Curtiss

-Commissioner

• Samuel J.

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

Nuclear Regulatory Washington, D.C.

20555 Commission Washington, D.C.

20555 Kenneth C.

Rogers Commissioner Morton B. Margulies, Esq.

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

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

Washington, D.C.

20555 l

7(

3 a,

L Mr. Ralph Hippert-

,1 Frederick J. Shon Pennsylvania' Emergency Atomic Safety land s.

Board Panal Licensing-Management Agency.

.B151 - Transportation. Safety.

.U.S... Nuclear Regulatory fBuilding Commission-

~Harrisburg, PA.'17120 Washington,-D.C. 20555-Michae1~B. Hirsch, Esq.

p 'l' Atomic. Safety..and Licensing' Agency

'Dr. Jerry Harbour Federal' Emergency Management L

Bonrd Panel 500.C. Street, S.W.

U.S.

Nuclear Regulatory Room 840 h

Commissior:

Washington, D.C.

20472 i

Washington, D.C.

20555 e

' Theodore:G. Otto, Esq.

Department of Corrections Atomic Safety and Licensing Office of' Chief Counsel Board Panel-P.O.

Box 598 U.S.

Nuc1 ear' Regulatory

' Camp Hill, PA. 17011 Commission' Washington',, D.C.

20555 Docketing and Service-Section

• Joseph Rutberg, Esq.

U.S.

Nuclear Regulatory Ann,Hodgdon,..Esq.

Commission 4

Counsel for NRC Staff-Washington,D.C.- 20555

7.

Office of the General Counsel U.S.

Nuclear Regulatory Commission

• Mark J.Wetterhahn, Esq.

' +-

' + '

Washington,.D.C. 20555 Robert C.

Rader, Esq.

CONNER AND WETTERHAHN, P.C.

Atomic' Safety and Licensing 1747 Pennsylvania Ave., N.W.

i

. Appeal Panel Washington, D.C.

20006 U. S.- ' N u c l e a r:

Regulatory

' Commission.

David Stone

' Washington, D.C.. 20555 Limerick Ecology Action, Inc.

P.O. Box 761

-Edward J.

Cullen, Esq.

Pottstown, " PA.

19464 Philadelphia Electric Co.

'2301 Market Street Robert L. Anthony Philadelphia, PA. 19101 Box 186 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 Chairman Air

.and Water Pollution Patrol 61' Forest Avenue Ambler, PA. 19002 s

Robert J..Sugarman,. Esq.

101 N. Broad Street 16th_ Floor Philadelphia, PA.

19107 POSWISTILO, ELLIOTT & ELLIOTT Y fdb,5;'

,,. si.

Charles W.

Elliott 1101 Northampton Street Easton, PA. 18042 (215) 258-2374 4

t e

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