ML20080A576

Forwards Pennsylvania Public Util Commission Ruling on Exceptions,Issued on 840113 by Judge Kranzel Re Bradshaw Reservoir Pumphouse

ML20080A576
Person / Time
Site:	Limerick
Issue date:	02/01/1984
From:	Rader R CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Brenner L, Cole R, Morris P Atomic Safety and Licensing Board Panel
References
NUDOCS 8402060131
Download: ML20080A576 (8)

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LAW OFFICES COLKETED l)S.Wl' GONNER & WETTERHAHN, P.G.

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...,....,,.....c. BRANCH CARLE A DDR ERM; ATOM LAwf Lawrence Brenner, Esq. Dr. Richard F. Cole Atomic Safety and ~

Atomic Safety and Licensing Board Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Peter A. Morris Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 In the Matter of Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2)

Docket Nos. 50-352 and 50-353 Gentlemen:

Enclosed please find a copy of " Ruling on Exceptions" by Judge Kranzel in the Pennsylvania Public Utility Commission proceeding related to the Bradshaw Reservoir pumphouse.

Sincerely, f

Robert M. Rader Enclosure cc

Service List 8402060131 840201 i

PDR ADOCK 05000352 O pon Da

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3EFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION IN RE:

APPLICATION OF PHILADELPHIA ELECTRIC COMPANY , DOCKET NO. A-00103956 RULING ON EXCEPTIONS Applicant and Intervenors have each filed exceptioits to the Initial Deci-sion of the undersigned Administrative Law Judge. It is the opinion of the Administrative Law Judge that 1 exceptions taken by applicant and intervenors lacked merit and should be dismissed for the following reasons:

APPLICANT'S EXCEPTIONS Applicant's Exception Number 1 Applicant takes the position that the Initial Decision exceeds the scope of the Commission's authority under Section 619 of the Municipalities Planning Code for the reason that Section 619 applys only to building structures and not to total installation included in the building. It should be noted that applicant cites Commonwealth v. Delaware and liudson Railway Co., 19 Commw.

Ct. 59, 339 A.2d 155 (1975) where the Commonwealth Court held that under Sec-tion 619 that railroad tracks as well as transmissica lines are exempt frcm the local zoning restrictions but do not require, absent regulations, appli-cations for exemption because neither are buildings. Appileant fails ta un-derstand the basis of zoning laws which in Pennsylvania go beyond the mere structure of the building but also govern the use to which a building can be put Wilkinsburg-Penn Joint Water Authority v. Borough of Churchill, 417 Pa.

93, 207 A.2d 905 (1965). Further the case cited by applicant Application of Philadelphia Electric Company, 42 Pa. PUC 537, 539 (1966) predates the later

a case of Borough of Mocsic v. PUC, 59 Comew. Ct. 338, 429 A.2d 1237 (1981) which requires the PUC to concern itself with environmental issues under Article 1, $27 of the Pennsylvania Constitution.

Applicant in each of its arguments fails to consider the need of this Commission-io"eisure that the Limer k plant once in operation has an as-sured and uninterrupted supply of water which is necessary to the operation of the Limerick installation. Applicant's own witness Timothy Weston admit-ted that it would have been far better had the Limerick plant been situated in the estuary which would have insured an uninterrupted water supply and not had a potential adverse affect on water needs upstream. Applicant ad-mitted in its argument, entitled " Regulatory History of the Project" at page 5 of its documcat 1/ that when the Limerick generating nuclear station was first proposed, the principle source of all water contemplated for Limerick was to come f rom the Schuylkill River. Thus, this Commissiun in its need to protect the consumers must be very concerned about a potential defect in a proposed installation which comes before the Commi:sion. Admittedly, ap-plicant could have avoided coming before the Connission for approval of the pumping station, had applicant applied to the local zoning authorities and obtained their approval for the pumphouse. Once having chosen, however, to come before this Commission, the Commission cannot avert its eyes from any potential interruption of service which might be caused by tne applicant's decision making. Thus, regardless of whether the Administrative Law Judge was correct in limiting the number of pumps in order to test whether or not there is a probability of substantial flooding and erosion caused by the installation of 2 pumps, rather than the one pump permitted, the applicant's argument on jurisdiction lacks merit.

1/ Exceptions to PECO to the Initial Decision of the Administrative Law Judge, pp. 3-13

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Further, this Commission has previously held unequivocally, in the con-text quite similar to that at issue here, that the conscruction of a water facility under $619, requires and authorizes this Commission to consider the potential impacts of the operation of that facility. In Application of Philadelphia Suburban Water Company, 54 PUC 127 (1980) this Commission recog-nized that Article 1, $27, compells that the Commission examine the affect of the proposed construction of a water facility.

Therefore for all these reasons, this exception should be denied.

Applicant's Exception Number 2 Applicant's exception number 2 is similar to applicant's exception number 1 in that it attempts to deny jurisdiction on the part of the PUC regarding environmental issues despite the f act that Commonwealth Court in Borcuch of Moosic, supra upheld concurrent jurisdiction on the part of the Pa. PUC and sister agencies concerned with environmental matters such as the Department of Environmental Resources (DER). At the second level, applicant suggests that at least this Commission should invoke the principle of comity in this case and defer to the DRUC because of the technical 2xpertise which resides in DRBC which is a regional agency. As stated by the intervenors in their reply to Philadelphia Electric Company's exceptions, the DRBC has expressly conditioned its approvals on approvals by the Public Utility Commission.

Further the DRBC has never made fact findings on the impact of the diversion on the East Branch of the Perkiomen based on a record in which witnesses were allowed to be heard, and to be cross-examined as occurred in the instant ap-plication.

As indicated by the treatise Goodrich on Conflicts of Law, third edition, pp. 11-12 (1949) there must be something more than a need for courtesy to cause an equal jurisdiction to bow to the position of other jurisdictions.

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Ftrthermore, as stated previously, since the viability of the Limerick project is a first order priority of this Commission, nothing could be worse for the racepayers of this Commonwealth than to be faced with the possibility of a underutilized and expensive installation such as Limerick where the underuti-lizatian is caused by the failure of the utility to provide necessary back-up cooling water in the event of interruption due to environmental causes such as f Acading or erosion. Applicant also makes the argument that one pump may not be sufficient to supply Limerick in that one pump can only provide 22 cfs while Limerick need a minimum of 27.7 cfs to operate. Clearly, applicant can resolve this matter through the DRBC. In addition, it should be noted that applicant's witnesses Weston and Goodall testified that while they would be reluctant to provide water for Limerick from the Blue Marsh Reservoir, they would concur in permitting up to 20-25% of the available water to the Blue Marsh Reservoir to be utilized for Limerick if only one pump was approved.

Thus, there is no reason to suppose that DRBC or the DER would refuse to provide additional water from the Blue Marsh Reservoir to Limerick in the event that such supply was necessary in order for unit one to operate.

Therefore, for all these reasons, this exception should be denied.

Applicant's Exception Number 3 Applicant attacks the one pump limitation imposed by the Administrative Law Judge for the reason that applicant will be unable to comply with the DRBC requirement to maintain 27cfs in the East Branch to Buck Road which will result in applicants being unable to operate the supplemental cooling water system during periods of seasonal low flow, which runs from May through October. Secondly, 'he t applicant believes that the DRBC would not be forth-coming if applicant applied for alternative sources of water. Rather, appli-k cant believes that the record established that there is no possibility of flooding or erosion. As stated previously, applicant 's own witness, se who are deeply involved in the DER and DRBC acknowledge that they would sup-port applicant taking additional water from Blue Marsh Reservoir to main-tain the viability of Limerick 1. Therefore applicant's position on this point is groundless.

Therefore, for all these reasons, this exceptions should be denied.

Applicant's Exception Number 4 In applicant's exception number.4, applicant takes the position that even assuming arguendo that the Commission has jurisdiction to consider the environmental impacts on the East Branch, the Administrative Law Judge's finding that approval of the application may result in erosion or flooding of the East Branch is not supported by the record.

The Administrative Law Judge had the opportunity to observe the wit-nesses who testified before him. Further, it would have been heloful if every expert witness had not been so deeply involved in the controversy on behalf of the parties in this case. As a result of the lack of confidence i

in the witnesses ability to transcend their partisan interests, the Admini-strative Law Judge came to the conclusion that caution was necessary la evaluating the testimony of the " expert witnesses". Thus, the decision was made to limit the approval of the application to one cumo and allow a period of one year to determine whether or not flooding or erosion would occur.

Secondly, the Administrative Law Judge was convinced that the back-up system to ensure the viability of Limerick 1 was absolutely necessary. It is true that Mr. Steacy, app'licant's witness has strong professional credentials, however, to place such a burden on Mr. Steacy, who was required to testify as to a report prepared by the very company of which he is now an employee reduced Mr. Steacy's credibility. Further applicant could have produced 5-

i witnesses who carried out the original study but failed to do so. One must be reminded that it is applicant who has the burden of proof in this case and to some degreu the Administrative Law Judge found its proof wanting.

Therefore, for all these reasons, this exception should be denied.

INTERVENORS' EXCEPTIONS Intervenors Exception Number 1 Intervenors takes the position that the water in the Blue Marsh Reser-voir is adequate for two (2) units. A careful review of the testimony pro-vided on the record. leads the Administrative Law Judge to accept the posi-tion taken by applicant's witnesses Goodall and Weston that 25% of the Blue March Reservoir is at this time the maximum that should be permitted for use at Limerick. Further arguments regarding additional withdrawal f rom the Scuvikill River are speculative at.this time and not based on sufficient evidence.

Therefore, for all these reasons, this exception should be denied.

Intervenors Exception Number 2 While it is true that the City of Philadelphia indicated that it could be an appropriate cooperative partner in terms of back-up water supply to Limerick, it is the belief of the Administrative Law Judge that details of such a cooperative venture have not been sufficiently developed so as to be l

acted on in this proceeding. The position of the Administrative Law Judge at this time is that some water from the Delaware is necessary for operations at Limerick 1.

Therefore,.for all these reasons, this exception should be denied.

Intervenors Exception Number 3 Intervenors takes the position that even one pump to Bradshaw would ad-

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e versely affect the environment.

A review of the record causes the Administrative Law Judge to conclude that the testimouf cf intervenor's witnesses was insufficiently credible for the Administrative Law Judge to conclude that the environmental danger was so great as to iustify denial of any water sources from the Delaware for Limerick 1.

Therefore, for all these reasons, this exception should be denied.

ORDER AND NOW, to wit, thisj l3 day of January, 1984, upon consideration of the exceptions of Applicant, Philadelphia Electric Company and the Inter-venors, Del-Aware Unlimited, and the individuals Val Singstedt and Colleen Wells, to the Initial Decision by the undersigned in the above captioned matter, IT IS HEREBY ORDERED AND DECREED:

1. That the exceptions filed by Philadelphia Electric Company to the Initial Decision rendered is hereby denied.

2. That the exceptions filed by Del-Aware Unlimited and Val Singstedt and Colleen Wells to the Initial Decision rendered is hereby denied.

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ISADOR KRAdZEL #

Administrative Law Judge DATE: /J / ff-f - -- .

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