ML20137Q497

Responds to Mi Lewis Request to Lift or Retract Cp.Petition for Relief Under Section 2.206 Should Be Denied.Puc of PA Recommended Decision Only Basis for Petition

ML20137Q497
Person / Time
Site:	Limerick
Issue date:	09/18/1985
From:	Conner T CONNER & WETTERHAHN
To:	Harold Denton Office of Nuclear Reactor Regulation
References
NUDOCS 8509200186
Download: ML20137Q497 (4)

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THOY B. CONN EN.J M. WAMIIINGTON. D. C. 20000 MAKK J. WETTEHHANN ROB E RT M. MAD E N DOUO_LAS M. OL5ON J ESSICA H. I.AVERTY

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NOBERT H. PUBL September 18, 1985 120215;t3-3 Moo BEENHAND O. BECHHOEFEH CAHLE ADDMRMW ATOM LAW Mr. Harold R. Denton Director, Office of Nuclear Reactor Regulation 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

Dear Mr. Denton:

This responds to the undated letter from Mr. Marvin I.

Lewis on behalf of " Citizen Action in the Northeast" (sic),

which we initially obtained from the NRC's Public Document Room. Mr. Lewis requests that the Director " lift or retract" the construction permit for the Limerick Generating Station, Unit 2. By letter dated August 30, 1985, you advised Mr. Lewis that his request would be treated as a petition under 10 C.F.R. 52.206. Notice of the NRC's receipt of the request was subsequently given in the Federal Register. See 50 Fed. Reg. 36934 (September 10, 1985). As discussed below, there is no basis for this relief and the petition should be denied.

The only basis cited by Mr. Lewis in his petition is the Recommended Decision of the Administrative Law Judge of the Pennsylvania Public Utility Commission in the proceeding regarding Limerick Unit 2, Docket No. I-840381 (July 12, 1985). The scope of that proceeding before the Pennsylvania PUC was whether financing for Limerick Unit 2 would " imperil the company's continued vitality." See Section 1903(a) of the Public Utility Code, 66 Pa. C.S.A. S1903(a).

Mr. Lewis relies upon portions of the decision, now being reviewed by the PUC Commissioners, regarding the economic viability of Limerick Unit 2. Mr. Lewis asserts that those unreviewed findings should be the basis for action by the NRC in " retracting" the construction permit for Unit 2.

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ADOCM 05000353 PDR 502l qo

- - Mr. Harold R. ' Dsnton -

Ssptember 18, 1985 Page 2 y

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The_ Recommended Decision of the PUC administrative law

i judge constitutes no basis for action by the NRC to revoke, j suspend or modify the construction permit for Unit 2. In an j earlier aspect-of the hearing proceeding, the Appeal Board i rejected much the same argument by Del-Aware Unlimited, l Inc.,' holding:

+

Moreover, Del-Aware would have us act

{ on the basis of rulings of other federal i and state entities concerned with various aspects of Limerick and the  ;

[ Point Pleasant Diversion] project. ,

Apart from the facts that,- in many

! instances, these rulings are not final ,

j and that overall the situation is rather 1 j dynamic, we must decide only the federal-1 questions before us, without being

, unduly influenced by the decisions of j others with differing concerns and responsibilities.

Philadelphia Electric' Company (Limerick Generating Station, j Units 1 and 2), ALAB-785, 20 NRC.848, 884-85 (1984).

f In this instance,-exceptions to the Recommended Deci- ,

sion of the administrative law judge have been filed and the j Recommended Decision is under review by the full Commission. r i Consequently, final agency action by the PUC has not yet l occurred. Additionally, as the Director stated in rejecting j the first of Del-Aware's petitions for relief under Section '

2.206, further appeals are available to'the Company even if the PUC Commissioners should adopt the Recommended Decision.

, Limerick, supra, DD-82-13, 16 NRC 2115, 2130 (1982). '

i Accordingly, the Recommended Decision.of the PUC administra-

! tive law judge provides no basis for legal action by. the '

NRC.

i Further, the matters raised by Mr. Lewis are beyond the statutory jurisdiction of the NRC. As the Appeal Board held  :'

in denying a stay of the issuance of the. low-power license i for Unit 1, "the economic concerns noted by~[ Friends of the

{ Earth) in this connection . .. . 'are not within the~ proper scope of issues litigated ~ 'in NRC proceedings. The -i Commission has just recently reaf firmed its long-held view that a nuclear plant's possible.effect on rates, the utili-i ty's solvency, and the like is best raised before state

! economic regulatory - agencies. " Limerick, supra, ALAB-789, l 20 NRC 1443, 1447 (1984). The Appeal Board restated this

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Mr. Harold R. Danton Septembsr 18, 1985 Page 3 principle in denying a stay of the Third Partial Initial Decision in the Limerick proceeding:

Rate issues and the like are not cogni-zable under the Atomic Energy Act, which is concerned with protection of the public health and safety from radio-logical hazards. State utility com-missions, and in some instances the Federal Energy Regulatory Commission, exercise economic regulatory jurisdic-tion.

Limerick, supra, ALAB-808, 21 NRC 1595, 1603 (1985).

The Licensing Board denied a similar motion to bring this issue into the licensing proceeding on behalf of Citizens Action in the Northeast only a year ago. In a Memorandum and Order dated August 22, 1984, the Licensing Board rejected Mr. Lewis' motion to admit a new contention, finding that his " generalized assertions that the Applicant has or may in the future have some ' rate base' difficulties are manifestly insufficient." Limerick, supra, " Memorandum and Order Denying Motions of CANE and CEPA to Admit or Certify Financial Qualifications Contentions" (August 22, 1984) (slip op, at 2) . The Licensing Board added: "The fact that a utility may encounter some financial difficulties, or that a state ratemaking body would deny some of the return being sought by the utility, would not be a sufficient basis for waiving the regulations precluding litigation of financial qualifications in operating license cases." (Id. at 3).

Accordingly, Mr. Lewis is seeking to use Section 2.206 procedures as a means to circumvent decisions of the Appeal Board and Licensing Board rejecting its attempt and those of other intervenors to raise this issue. This contravenes the rule "now firmly established that the remedy afforded by 10 CFR 2.206 should not be used as a means to reopen issues previously adjudicated." Limerick, supra, DD-85-11, 22 NRC (July 29, 1985) (slip op. at 36). Mr. Lewis has simply confused consideratic of environmental costs and benefits under 10 C.F.R. Part 51 with economic costs, which, as discussed above, are excluded from consideration under the NRC's rules.

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1 - - Mr. Harold R. Danton September 18, 1985 Page 4 J ,

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Accordingly, the -petition for relief under Section 2.206 should be denied. t i Sincerely, Tro onner, Jr.

Counsel for Philadelphia Electric Company i TBC/dlf j cc: Eugene J. Bradley, Esq.  ;

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