ML20214C914

Answer Opposing 860130 late-filed Petition for Leave to Intervene & Request for Hearing by Rl Anthony.Certificate of Svc Encl

ML20214C914
Person / Time
Site:	Limerick
Issue date:	02/19/1986
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
CON-#186-141 OLA, NUDOCS 8602210325
Download: ML20214C914 (16)

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00CKETED USNRC UNITED STATES OF AMERIQ NUCLEAR REGULATORY COMMI!PNIdKB 20 P2 :16 Before the Atomic Safety and LimppgingeBoard DOCMf.i Nu a duo t: f.

In the Matter of ) ONANCH

)

Philadelphia Electric Company ) Docket No. 50-352-OLA

)

(Limerick Generating Station, )

Unit 1) )

LICENSEE'S ANSWER IN OPPOSITION TO LATE-FILED PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING BY ROBERT L. ANTHONY Preliminary Statement On January 30, 1986, petitioner Robert L. Anthony filed a late request for leave to intervene and for a hearing with respect to the proposed issuance of an amendment to Facility Operating License No. NPF-39. The license was issued to Philadelphia Electric Company (" Licensee") for the operation of its Limerick Generating Station, Unit 1 (" Limerick").1 The proposed amendment, which is temporary and schedular in nature, was requested by application dated December 18, 1985 to the Nuclear Regulatory Commission ("NRC" or "Commis-sion"), which sought an extension of the allowable interval 1/ Although Mr. Anthony lists Friends of the Earth (" FOE")

as a co-petitioner, he has not attempted to meet any of the requirements under the Commission's rules and precedents regarding participation by organizations.

Accordingly, we shall refer to Mr. Anthony as the petitioner.

8602210325 860219

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for testing certain reactor instrumentation line excess flow check valves.2/

By letter dated February 6, 1986, the Chief, Docketing and Service Branch, NRC, confirmed an earlier telephone conversation in which Mr. Anthony was informed that the Office of the General Counsel had reviewed and rejected his petition for noncompliance with (1) the formal requirements for documents under 10 C.F.R. 52.708; (2) the requirements for a certificate of service under 10 C.F.R. S2.712; and (3) the requirements for a petition to intervene under 10 C.F.R.

S2.714. Accordingly, the NRC did not docket Mr. Anthony's nonconforming petition. Rather, after Mr. Anthony said that he would file an amendment to his petition, the docketing officer stated that he would refer the amendment to the Atomic Safety and Licensing Board Panel for consideration when received.

On February 5, 1986, Mr. Anthony filed an amendment to his petition by deposit in the mail. The amendment contin-ues to fall short of compliance with the formal requirements for documents under 10 C.F.R. 52.708. Further, the 2/ The NRC granted the proposed amendment as attached to a letter dated February 6, 1986, authorizing the teating to be performed during a scheduled outage to begin on or before May 26, 1986. Letter from Walter R. Butler, Division of BWR Licensing, NRC to Edward G. Barer, Jr.,

Vice President and General Counsel, Philadelphia Electric Company (February 6, 1986). The license amendment was supported by a written safety evaluation which was also attached.

requirements for a certificate of service by a lay individu-al under 10 C.F.R. S2. 712 (e) (3) have not been met because the purported certification was not made under oath. Most significantly, the amendment does not cure the deficiencies in the original petition as to requirements under 10 C.F.R.

S2.714 for intervention.

Although Licensee has received no notice from the Docketing and Service Branch that it had referred the

" amended petition" to the Licensing Board, we were so advised orally by the Office of the General Counsel.

Mr. Anthony received notice of the proposed Commission action on the Licensee's request for a license amendment by publication in the Federal Register. He also had actual notice by receipt of a copy of the request (served December 18, 1985) as a party in the operating license proceeding for Limerick. Mr. Anthony failed to seek leave to intervene prior to expiration of the 30-day period permitted by the Federal Register notice and has failed to demonstrate any good cause for lateness. He has ignored the five criteria under 10 C.F.R. S2.714 (a) (1) (i)-(v) for admitting late petitions. Further, Mr. Anthony lacks standing to contest issuance of the amendment because it would not affect any cognizable legal interest he asserts. Put differently, the amended petition does not meet the Commission's requirements for intervention under 10 C.F.R. S2'.714 (a) (2) and (d) regarding Mr. Anthony's alleged interest in this proceeding.

Accordingly, his petition should be dismissed.

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4 Argument I. The Petition Shcald be Dismissed as Untimely By letter dated December 18, 1985, Licensee submitted an application which requested the NRC to issue an amendment to its operating license for Limerick Unit 1 to revise the Technical Specifications to allow a one-time-only extension of 14 weeks to meet a limited number of testing requirements for the excess flow check valves in certain instrumentation lines. This routine testing required by the Technical Specifications must be performed every 18 months and neces-sit:ltes a plant shutdown.1 i The Application for Amendment discussed the need and technical basis for the requested amendment and also provid-ed information regarding the determination on "significant hazards consideration" to be made by the Commission pursuant to 10 C.F.R. S50.92. On the basis of that information, the Licensee concluded that the proposed temporary amendment of the schedule for tests specified in the application did not constitute a significant hazards consideration under Section 50.92. As shown on the certificate of service attached to 3/ Letter from Eugene J. Bradley, Associate General Counsel, Philadelphia Electric Company to Harold R.

Denton, Director, Of fice of Nuclear Reactor Regulation, NRC (December 18, 1985) (enclosing Application for Amendment of Facility Operating License NPF-39). See also 50 Fed. Peg. 52874 (December 26, 1985).

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the Application for Amendment, Mr. Anthony and other parties to the NRC proceeding were duly served.A!

On December 26, 1985, the NRC published notice in the Federal Register of its proposed determination that the amendment request involves no significant hazards consid-eration and noted that the NRC was seeking public comments on its proposed determination. The notice provided that, by January 26, 1986, "any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written petition for leave to intervene." As is customary, the notice also stated that nontimely petitions to intervene would not be entertained absent a favorable determination based upon a balancing of the factors for admitting late contentions.

Under the regulations 5 and the Federal Register notice, January 26, 1986 was the final day for filing any petition seeking leave to intervene and a hearing with regard to the Application for Amendment. The petition filed 4/ FOE is a party to the operating license proceeding for Limerick. Mr. Anthony is its designated representative. See Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2) ,

LBP-82-43A, 15 NRC 1423, 1440 (1982).

5/ 50 Fed. Reg. 52874, 52875 (December 26, 1985).

6/ See 10 C.F.R. S2.105(d).

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by Mr. Anthony on January 30, 19861/ ,

is therefore untimely.

Mr. Anthony's purported justification, receipt of an NRC document dated January 27, 1986 noting the Federal Register notice, is without merit. Mr. Anthony had actual notice of the Application for Amendment by receipt of a copy served by Licensee on December 18, 1985. He has filed many similar

" petitions" before the Commission and must be held account-able for knowing that deadlines for filings must be met.

Moreover, the law is that publication in the Federal Register gives full notice to all persons who might later seek to intervene:

The law required that the Nuclear Regulatory Commission publish once in i the Federal Register notice of its intention to act on an application for an amendment to an operating license (The Atomic Energy Act of 1954, as

! amended, Sec. 189). The Appeal Board j- noted, in Jamesport, that "The Federal

! Register Act expressly provides that i such publication constitutes notice to

'all persons residing within the States of the Union.' 44 U.S.C. 1508." Long Island Lighting Company (Jamesport Nuclear Power Station, Units 1 and 2) [,)

ALAB-292, 2 NRC 631 (1975). Moreover, many years ago the U.S. Supreme Court

ruled that publication in the Federal

Register gives legal notice to all i citizens (Federal Crop Insurance Corp. v a

Merrill, 332 US 380-388, 1947).8/

7/ We note that the envelope containing the copy served upon Licensee's counsel is postmarked January 31, 1986.

8/ Florida Power and Light Company (Turkey Point Nuclear

+

Generating Station, Units 3 and 4) , LBP-79-21, 10 NRC 183, 192 (1979). See also Maine Yankee Atomic Power (Footnote Continued)

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, The Appeal Board recently reiterated this very point in a case on all fours with Mr. Anthony's petition, which

involved an amendment to the operating license for the Pilgrim reactor. Like Mr. Anthony, who participated at great length as an intervenor in the Limerick proceeding,

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the petitioner in Pilgrim was a long-time intervenor in NRC cases. Nonetheless, he ignored the deadline for timely intervention given in a Federal Register notice. The

petitioner there did not contest the finding that his peti-tion, filed eight days late, was untimely.E The Appeal i

l Board affirmed, rejecting petitioner's claim that he should j have been granted a second opportunity to explain his 1

lateness after the issue had been raised by the Licensee's and NRC Staff's answers to his petition.10/

Equally important, the Appeal Board held that "given

[ petitioner's] failure even to address the section 2.714(a)

{ lateness factors, his intervention petition was correctly i

denied because it was untimely." b It ruled that "the

(Footnote Continued)

Company (Maine Yankee Atomic Power Station) , LBP-82-4,

. 15 NRC 199, 201 (1982); New England Power & Light I Company (NEP, Units 1 and 2) , LBP-78-18, 7 NRC 932, 933-34 (1978).

9/ Boston Edison Company (Pilgrim Nuclear Power Station) ,

LBP-85-24, 22 NPC 97, aff'd, ALAB-816, 22 NRC 461 (1985).

0 1_0) Pilgrim, supra, ALAB-816, 22 NRC at 466-68.

11/ Id. at 465-66.

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burden of persuasion on the lateness factors is on the tardy petitioner and that, in order to discharge that burden, the petitioner must come to grips with those factors in the petition itself."E! Like Mr. Anthony in the instant proceeding, the petitioner in Pilgrim was "by no means a newcomer to NRC licensing proceedings"E and, given his experience, " fully apprehended the reach of the affirmative obligation imposed upon the petitioner who appears on the scene after the prescribed deadline has passed."EI As recently as last month, the Appeal Board had occasion to remind Mr. Anthony of that " affirmative obligation,"E but he has nonetheless failed to address the lateness criteria here.

Also on point is the holding in Seabrook dismissing a late -filed petition by a knowledgeable intervenor in the operating license proceeding. Citing an argument by peti-tioner which " betrayed his understanding of such legal requirement as notice (in the Federal Register],"E the Licensing Board held:

12/ Id. at 466.

l 13/ Id. at 467.

14/ Id. at 468.

M/ Limerick, supra, ALAB-828, 23 NRC (January 16, l 1986) (slip op. at 10-16).

16/ Public Service Company of New Hampshire (Seabrook (Footnote Continued)

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This appears to be the statement of one well versed in nuclear matters appearing in the Federal Register. Thus, Peti-tioner apparently was well qualified to locate notice of hearings in the Federal Register . . . . The Board has elected to address this argument to make it clear to others in this proceeding who do not understand that ignorance of Federal Register notice is no justifica-tion for permitting late intervention or justification for ignoring the matters set forth in Federal Register notices pertaining to this proceeding.H/

Moreover, Mr. Anthony's original petition was not accepted by the NRC for filing. Because it was never docketed, it failed to toll the time for filing a petition to intervene.E! The Office of the Secretary had no author-ity to donate additional time to Mr. Anthony in violation of the Rules of Practice. In any event, the amended petition was not filed until more than one week after the deadline for timely petitions. Like the original petition, it fails to justify its lateness.19/ Accordingly, Mr. Anthony's (Footnote Continued)

Station, Units 1 and 2) , Docket Nos. 50-443-OL and 50-444-OL, " Order" (November 15, 1983) (slip op. at 4-5).

17/ Id. at 5.

18/ See 10 C.F.R. 52.709.

M/ As discussed above, Mr. Anthony is a veteran of NRC proceedings and should be fully conversant with the requirements of the Commission's regulations. He has been repeatedly admonished on the importance of complying with the Commission's procedural rules for filing documents, including a specific warning that future filings not in conformance with the Rules of (Footnote Continued)

petition is late without " good cause" for lateness and fails to discuss, much less satisfy on balance, the five factors for admitting late petitions. His petition should therefore be dismissed.

II . - Petitioner has Not Satisfied the Require-

ments of 10 C.F.R. 52. 714 (a) ( 2) and (d) i and Lacks Standing to Intervene.

Under the Commission's Rules of Practice, a petition to intervene in a licensing proceeding may be granted only if the requirements of 10 C.F.R. SS2. 714 (a) (2) and (d) have been satisfied. These prerequisites are set forth below:

(a) (2) The petition shall set forth with particularity the interest of the petitioner in the proceeding, how that i interest may be affected by the results i of the proceeding, including the reasons

why petitioner should be permitted to j intervene, with particular reference to  !

i the factors in paragraph (d) of this i

section, and the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.

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. (d) The Commission, the presiding ,

l officer or the atomic safety and licens-

• ing board designated to rule on pe-

titions to intervene and/or requests for hearing shall, in ruling on a petition i for leave to intervene, consider the following factors, among other things

(1) The nature of the petitioner's right under the Act to be made a party to the proceeding.

J (Footnote Continued)

Practice "will be subject to summary rejection."

, Limerick, supra, ALAB Order (August 5, 1985) (slip op.

at 3) . Therefore, Mr. Anthony can hardly contend that

, he had no reason to believe that his original petition i met filing requirements.

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(2) The nature and extent of the petitioner's property, financial, or other interest in the proceeding.

(3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest.

However liberally these requirements might be inter-preted in a plenary operating license case, a much more specific showing must be made in a case involving only a temporary schedular change for compliance with plant Techni-cal Specifications. In the Pilgrim operating license amendment proceeding, the Licensing Board denied a late petition for leave to intervene because the petitioner lacked standing under the stricter standard applicable to amendment proceedings. The Board held:

This case concerns a request for a license amendment and it is not con-trolled by the same standing consid-erations that govern standing when an operating license is sought. Whatever the risk to the surrounding corrr. unity from a reactor and its associated fuel pool, the risk from the fuel pool alone is less than the distance of residence from the pool for which standing would be appropriate would, accordingly, be less. Consequently, we do not consider residence 43 miles from this plant to be adequate for standing. We need not decide how close residence might be before standing would be established.M/

2_0_/ Pilgrim, supra, LBP-85-24, 22 NRC 97, 99 (1985)

(emphasis in original). The Board added that it knew of "no scenario under which radiation attributable to the fuel pool would affect a residence 43 miles distant from the fuel pool; and petitioner has not informed us of any such scenario." M.

In affirming that decision in Pilgrim, the Appeal Board expressly left open the question of "whether either (peti-tioner's] place of residence or his consumption of food products originating in the vicinity of the facility serves to clothe [ petitioner] with the requisite mantle of standing to challenge the proposed amendment to the Pilgrim operating license."2_1,/

Licensee submits that the Pilgrim rationale and outcome are controlling here. Mr. Anthony resides in Moylan, Pennsylvania, which lies some 20 miles southeast of the 1

Limerick plant. The only purported " interest" in the proposed amendment asserted by Mr. Anthony is as follows:

We are convinced that any extention

[ sic] of time for the tests required to determine the ability of the instrumen-tation lines to function properly would pose risks to our health and safety

. since these lines are essential to operator information and functioning in every aspect of the plant's operation and are a key link in the control of the nuclear process and absolutely essential to the safe shutdown of the plant in the M/ Pilgrim, supra, ALAB-816, 22 NRC at 465. Although it noted one particular precedent on standing which it deemed relevant, the Appeal Board in Pilgrim did not cite its prior holding in Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and

2) , ALAB-522, 9 NPC 54 (1979). In that case, the Appeal Board reversed the denial of standing to petitioners in a license amendment proceeding to enable expansion of the spent fuel pool ca r acity for Units 1 and 2 of the North Anna plant. It is uncertain whether the Appeal Board in Pilgrim believed that its earlier North Anna holding was distinguishable or should be reconsidered when its opinion would not constitute l dictum.

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s event of any accident at the plant which could result in the release of radioac-tive poisons to the environment, thereby threatening us and the public.M/

In essence, Mr. Anthony is impermissibly seeking to relitigate the safety of the Limerick design. Obviously, such safety contentions should have been raised long ago.

Mr. Anthony had an opportunity pursuant to the notice of opportunity for hearing in the operating license proceeding in 1981 to challenge any aspect of the application relating to the Limerick reactor design or construction,2_3,/ includ-ing accident analysis of a postulated instrument line pipe break.EI As opposed to alleged harm which would result from his hypothetical pipe whip loss of all instrumentation lines, Mr. Anthony has alleged no particularized harm which would befall him as a consequence of delaying certain testing for 1 4 w e e k s . 2_5,/ The limited amendment at issue relates solely M/ Anthony Petition at 1 (January 30, 1986).

3 2_3,/ See 46 Fed. Reg. 42557 (August 21, 1981).

M/ See FSAR S15.6.2. See also FSAR S3.6 (protection against dynamic ef fects associated with the postulated rupture of piping).

25/ Similarly, Mr. Anthony's amendment to his petition fails to particularize any such harm, but rather challenges the overall safety of the Limerick reactor.

Thus, he only alleges generally in his amendment that

, granting the exemption " adds a further risk to safe operation" and that "[i]n case of an accident and radioactive emissions my life could be threatened."

(Footnote Continued)

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s to-a minor and temporary change in schedule to delay certain tests required by the plant's Technical Specifications rather than any change in design, hardware or analysis. Mr.

Anthony-has therefore demonstrated no legal interest in the temporary amendment of the operating license for Limerick Unit 1 sought by Licensee.

Conclusion For the reasons discussed above, Mr. Anthony's petition for leave to intervene and for a hearing should be denied.

Respectfully submitted, CONNER & WETTERHAHN, P.C.

Troy B. Conner, Jr.

Robert M. Rader Counsel for Licensee February 19, 1986 (Footnote Continued)

Amendment to Anthony Petition (February 5, 1986). In fact, Mr. Anthony acknowledges that, even under his assumptions, it is only the putative " threat" of the exemption grant "added to many other unsafe aspects of the plant itself and its operation" which could cause him any injury. Id. (emphasis added).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

Philadelphia Electric Company ) Docket No. 50-352-OLA

)

(Limerick Generating Station, )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Answer in Opposition to Late-Filed Petition for Leave to Intervene and Request for Hearing by Robert L. Anthony," dated February 19, 1986 in the captioned matter have been served upon the following by deposit in the United States mail this 19th day of February, 1986:

Mr. Ivan W. Smith, Chairman Atomic Safety and Atomic Safety and Licensing Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Docketing and Service Dr. Richard F. Cole Section Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Pegulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Ann P. Hodgdon, Esq.

Counsel'for NRC Staff Mr. Gustave A. Linenberger, Jr. Office of the Executive Atomic Safety and Licensing Legal Director Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

9-Atomic Safety and Licensing James Wiggins Board Panel Senior Resident Inspector U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 P.O. Box 47 Sanatoga, PA 19464 Philadelphia Electric Company ATTN: Edward G. Bauer, Jr.

Vice President &

General Counsel 2301 Market Street Philadelphia, PA 19101 Mr. Robert L. Anthony Friends of the Earth in the Delaware Valley 106 Vernon Lane, Box 186 Moylan, PA 19065 Jay M. Gutierrez, Esq.

U.S. Nuclear Regulatory Commission 631 Park Avenue King of Prussia, PA 19406 Afn CJ Robert M. Rader