ML20113H661

Resubmits Comments,Correcting Typos,Of Philadelphia Electric Co on Del-Aware Request,To Reflect Publication of Request for Action Under 10CFR2.206 Re Supplemental Cooling Water for Facilities

ML20113H661
Person / Time
Site:	Limerick
Issue date:	01/22/1985
From:	Conner T CONNER & WETTERHAHN
To:	Harold Denton Office of Nuclear Reactor Regulation
References
NUDOCS 8501250250
Download: ML20113H661 (11)

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LAW OFFICES CONNER 6e WETTERII AIIN, P.C.

17 4 7 P E N N S Y LVA N I A AV EN U E. N. W.

TO;Y B. ':O N N E R J R. WASIIINGTON D. C. 20000

, M ARK J. W ETTERH AHN h0LAS X OLSON

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'ZST ADMITTED IN D, C.

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:

On January 15, 1985, we submitted " Comments of Philadelphia Electric Company Del-Aware's Request Under 10 C.F.R. Section 2.206." I am resubmitting that document to reflect publication of the " Request for Action Under 10 C.F.R. Section 2.206 Regarding. Supplemental Cooling Water for the Limerick Facility" at 50 Fed. Reg. 1650 (1985) and to allow correction of minor typographical errors.

Sincerely, Troy B. Conner, Jr.

cc: Eugene J. Bradley, Esq.

Robert J. Sugarman, Esq.

8501250250 850122 DR ADOCK 05000352 PDR I

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-COMMENTS OF PHILADELPHIA ELECTRIC COMPANY ON i ;. DEL-AWARE'S REQUEST UNDER 10 C.F.R. Section 2.206

< By letter dated November 21, 1984, Del-Aware Unlimited, Inc. (" Del-Aware") submitted "a renewed and amended and

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updated. petition under Section 2.206." The sole basis for

the request is a letter from J.F. Paquette, Jr., Vice President Finance and Accounting, Philadelphia Electric Company, ~to ' Jerry Rich, Secretary, Pennsylvania Public

- Utility Commission, dated' October 30, 1984. That letter in pertiinent.part states:

Low Power Licensing of Unit #1

occasioned a new review of the remaining steps to achieve commercial . operation.

As a result we now . estimate that the earliest date _ for ~ commercial operation of Limerick Unit-91 will be during the Third Quarter of 1985, if an interim supply-ofc supplemental cooling water is available'by'May 1985. . This-represents a 1 revision-- of two .to five .-months from the previous estimate ~f o the earliest l commercial operation _date and will result'in an increase in.the. total cost of Limerick Unit 141 of approximately $30-million per month'.

Del-Aware interprets this as a decision by. PECO .to utilize an' identified interim. source of supplemental cooling water for- the-l Limerick Generating ' Station. Petitioner requests.the Commission Staff;to," require-that PECO provide- -

' to.the Commission.a' full disclesure of its intended sources, and the environmental consequences.thereof,, prior to issuing

. . the'. full ' commercial ~ license."~ The relief ~ requested . by Del-Aware-is essentially the same as previously requested by.

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k Del-Aware - before the ~ Director and before the adjudicatory

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• boards of the: Commission. Del-Aware presents absolutely nothingl new which would require the institution of a pro-ceeding pursuantcto 10 C.F.R. Section 2.206.

.There is no need to redocument the history of the NRC's consideration of. supplemental cooling water supplies for the-Limerick Generating Station. In both the Director's De-

_cisions and numerous decisions by the presiding Atomic-Safety'and Licensing Board and Appeal Board, the background i and current status of this matter have been discussed.M In particular, both the Director and the adjudicatory boards havendis' cussed the actions that PECO as the Applicant in the proceeding,must take should it change its plans and modify

, .its pending proposal to rely on . a source of supplementary cooling water. other than the Delaware River via the river-follower method. There is' absolutely no reason to institute a proceeding- in order .to inform the : Company that .it must inform the NRC that'it has selected a' source.of supplemental

water,; : interim ' or . otherwise, other than described in the L

s application.

In accordance with the Commission's regulations under 10 C.F.R. E Section 2 .~1 0 1 , it is: the responsibility of : the-

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1[ l See - ALAB-785, ' 20 NRC 848' '(1984), aff'g in pertinent art, LBP-83-11, ' 17 NRC 413 (1983); LBP-74-44, 7 AEC (1974), af f'd ' in pertinent part, ALAB-262,.1-NRC-

163 .(1975) ; DD-84-13, 19 NRC 1137 (1984).

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, og applicant for a license to prepare and submit its applica-

'-tion ~'as-prescribed by the applicable rules and regulations.

' Nowhere in Section 2.201 or elsewhere in the regulations is the NRC - authorized to require an applicant to utilize one

-particular source of' supplemental cooling water as opposed to another.

The Director has previously addressed the possibility

- thatLan alternative to the Point Pleasant. diversion might be required. In its April 25, 1984 Decision, the Director

- rejected Del-Aware's claim that actions by Bucks County

' seeking to terminate the project require immediate consid-

. eration of another alternative. The Director stated:

The information provided by.

Petitioners . indicates no lessening iof-the resolve--of PECO to go' forward with the Point Pleasant Diversion Project.

Indeed, PECO has availed itself of its legal remedies to ' ensure . that ;the PPD Project '.will go -forward as : currently configured. .Should the Point - Pleasant Diversion Project ultimately fail, and should PECO'then identify an alternative proposal to supply supplemental cooling _

water to the Limerick n Facility, action by . the - NRC would then be. appropriate.

Such an alternative ' would have to. be reviewed 'in the same . fashion as the Point Pleasant Diversion . Project- was examined by this agency. prior to issuance of- a. construction ' permit.

However, far from proposing an

. alternative -to the. Point. Pleasant Diversion . Project, PECO's current actions ~ appear- clearly ~ directed .at-ensuring- -that. the PPD Project goes

' forward. Concerns that- the Point Pleasant Diversion Project may not be

, completed .and, consequently, that alternative sources of cooling water may be ~ required = for : the Limerick Facility are premature and speculative . at this

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rg time. I-decline._to commit this agency's resources to -examine such questions, given their speculative nature, at this time.2/;

y More 'recently, ithe Director restated. the Staff's position ~in response:to Del-Aware's letter of May- 23,-1984.

The: Director's response correctly. states the need to consid-l er ~a lternatives to the Point Pleasant diversion remains problematical:

In my Decision,LI determined that action

- .on the part of NRC would. be appropriate

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to review alternatives to the currently proposed supplemental cooling . water system if the _ current proposal should

-for some reason fail and if PECO should then identify an alternative proposal to supply supplemental cooling - water. for the Limerick facility. . I noted that any alternative. would then have to be reviewed in the same. fashion as the original- proposal was examined by. the agency. prior -to the. issuance of a 2 construction-permit. In my Decision, I f, 'further unoted-- that PECO's current actions . ' appear. . clearly- directed- _' a t -

insuring completion _of the- presently proposed- supplemental cooling water system- and that- concerns 'that- the project may_ not_ _ be : complete and-consequently-that alternative sources of

. cooling Swater may _be required for the Limerick-facility are thus premature and

, speculative.- On-this_ basis, I-declined to commit the ' agency's resources- to examine such questions . "given-- their speculative l nature.. There-is nothing in-your - letter which would cause me to N reconsider this question.3/

2f . DD 13, c19 NRC _ at.1141.

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3/- Letter, from Harold R. Denton, ~ Director, _ Office of Nuclear. Reactor Regulation to Robert J. Sugarman, Esq.

-at 1 (June ~ 29, 1984): (footnote-omitted).

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e In its September 10, 1984 letter to Mr. Sugarman, counsel for Del-Aware, the Director again declined to institute a proceeding to consider alternatives to the Point

-Pleasant project. In this regard, the Director stated:

The basic licensing function of the Commission is to review project pro-posals submitted by an applicant. I have noted this in earlier. correspon-dence. In this matter, .the Point Pleasant Diversion Project was submitted for review by PECo at both the con-struction permit and operating license stage of the proceeding. To the extent a submitted proposal is no longer viable, an applicant may submit an alternative for the Commission's consid-eration. In this context, the actions you request are inappropriate.

The-Licensing Board has similarly rejected contentions relating to alternatives to Point Pleasant for the same reasons discussed by the Staff as quoted above. In the

. interest - of brevity, we direct your attention to the dis-cussion of the Licensing Board's action in " Comments of

. Philadelphia Electric Company on Del-Aware's Request Under 10 C.F.R. 2.206," [page] transmitted by letter dated Decem-ber 29, 1983 at 9, and " Comments of Philadelphia Electric Company on Del-Aware's~ Request Under 2.206," transmitted by letter dated August 21, 1984 at.9.

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

.the Atomic - Safety and Licensing Appeal -Board rejected the.

same. argument Del-Aware advances here, i.e., that L'

alternatives-to the river follower method must be examined.

The. Board held:

What Del-Aware is seeking, in fact, is an order directing PECo to abandon Unit 2 and to rely on a source of supplementary cooling water for the remaining Unit 1 other than the Delaware River via the river-follower method.

But we have no legal basis here- for making 'such an order. There is no question - that PECo - has some formidable obstacles to surmount if it is to operate both Limerick Units 1 and 2 in the manner currently proposed. Whether PEco.will change its plans to effect an easier resolution of the problems confronting it is a matter for PECo's management, and possibly its sharehold-ers, to decide. But the fact is we now have before us PECo's application for a

license to operate two units, using the

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river-follower method to. supplement the plant's cooling. water system. We have previously approved the river-follower method in ALAB-262, _ supra. The purpose of this proceeding, in that regard, is consideration of the impacts of any subsequent changes relating to that supplementary cooling system. Except

-the two matters that we have determined should have been, but were not, litigat-ed,*.we agree with the Licensing Board's conclusion that the impacts of the subsequent changes are not significant.

-In the absence of a finding .to .the contrary, we are without the legal.

predicate to dictate ' to PECo that it

-must. pursue other-options.**

• Viz., _ Del-Aware's contentions on

-salinity and the impacts on the Point Pleasant -Historic District.

~See pp. 866-70, 874-76, supra.

• • Of. course, if PECo does change _its plans and modify its pending application accordingly, it is

-obliged to notify- us and the

. parties promptly. Tennessee valley u

Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), ALAB-677, 15 NRC 1387, 1391-94 (1982). And, as the Licensing Board correctly observed, in such circumstance the Commission "would have to reconsid-er its previous assessment of environmental impacts in light of changes proposed by'PECo." Licens-ing Board Memorandum and Order of June- 1, 1983 (unpublished), at 9 n.3. The parties would also have to be afforded an opportunity to challenge any newly amended, significant portion of the applica-tion. See Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2) , ALAB-77 8, 20 NRC 42, 48 (1984).

Thus, the_ Appeal' Board placed the obligation upon PECO, as the Applicant, to notify the Commission ~should its plans

regarding the operation of Limerick- Generating Station change. PECO certainly recognizes its obligation to-inform the Commission and will do so should the circumstances dictate. -However, Philadelphia Electric Company remains committed to the'use of water for- the Limerick Generating

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-Station as discussed in the application and as extensively litigated . over the last decade -and Mr. Paquette's letter does not- represent 'any- deviation. The' letter merely ' re-flects' a cha'nge in- the commercial operation date of Limerick. .It also~ reflects the reality _that sustained power operation- during' the summer months may not be possible without a'. supplemental source of' water.

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PECO's stated intention to pursue completion of the

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Point Pleasant project- as the -source of supplementary cooling water for Limerick was the very basis of the recent

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' decision ' by the Court of Common Ple'as f of Buck's County in b 1 ruling - that - Neshaminy Water Resources Authority and Bucks y

gpi-'- " County .-would be.. requirec. to itake all necessary actions to-b f' complete the project.4/ In that decision, the Court granted

, PECO's ' request for specific performance 'of the . contract

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.between~PECO.and NWRA to require it "immediately to recom-mence and ' complete. construction of the- Point Pleasant pumpin'g station- and - the combined - transmission main" and

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similarly ordered Bucks. County "to do all things which are

.necessary; to- implement and comply with its contractual

' obligations-so_that the? construction and completion of .the 1 Point-Pleasant' pumping station and the combined transmission Kmain may :be- completed . . . . "E! In securing specific p'erformance of - the " contract, PECO successfully argued' that-

- ~.any attempt to obtain-other.' sources of supplemental cooling

~ L water - for Limerick twould f be. frought with uncertainty and 4

'wosld jeopardize the--commercial operation of the facility.

_Oni this: _ point, ~the Court' emphatically sustainedL PECO's

_ position, stating:.

As a prerequisite to-thefissuance-of~

an operating. license by the . [ Nuclear]

Regulatory Commission -(NRC) , _ the succes--

sor ~ to 'the Atomic ~ Energy Commission.

1(AEC), the- licensing ' body for the o operation 1'of .- Limerick , an -extensive ,

4  ; environmental'impactostudy had been done

'. ,1 cc:t  ; 4 /- iDaniel-J. Sullivan, et al, y, County of. Bucks, et al.,.

([' No. 84-8358.(Pa. Ct. Comr 8 Pleas) -(January 3, 1985).

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5/- .'Id. at.46.

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with respect to the Point Pleasant project as a. source of supplementary cooling water. If some alternative application were to-be made by PECO for some other source, it is likely that a new environmental impact study.would be required. An environmental study requires and consumes a great - deal of time, effort and money.

The regulatory permitting process is a

'long and tortuous one. This fact alone is probably the best argument for holding that neither PECO nor NP/NW are anyway remiss in their obligations for

-failure to seek and attempt to secure alternative sources. They have been swimming in these turbulent waters for so long that.no one can blame them for refusing to take another plunge.6/

'Accordingly, the very principle consistently espoused by the Director and.the Adjudicatory Boards of the NRC in rejecting i

Del-Aware's. argument has also'been sustained by the Court of Common Pleas of Bucks County in Pennsylvania.

Having raised identical matters before the Licensing Board and Appeal Board, Del-Aware cannot circumvent the hearing and appeal processes by allegations under 2.206. As

' the Commission held in - Indian Point and Diablo Canyon, 6/ Id. at 19, .38. . Additionally, the Court noted that there is "no assurance that PECO will'be able to obtain an. alternative source of supplemental-cooling water in the absence of the Point Pleasant- project" because therelis "no evidence to indicate that either. DER, DRBC or the United States Corps of Engineers will authorize withdraw-,1. of water'from Blue Marsh' Reservoir in Berks County or a relaxation of the regulatory restriction on PECO's . withdrawal' of water from the Schuylkill River when the water. temperature exceeds 59 degrees Fahrenheit." Id. at 20.

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parties must be prevented from using 10 C.F.R. 2.206 proce -

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3: dures as a vehicle for reconsideration of issues ~previously

- ' decided. Consolidated Edison of New York, Inc. (Indian

-' Point, = Unit Nos. 1, 2 and 3) , CLI-75-8, 2 NRC 173, 177 (1975) ;- Pacific- Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , CLI-81-6, 13 NRC 443 s

T (1981f. See also Texas Utilities Generating Company (Comanche Peak . Steam Electric Station, Units- 1 and 2) ,

DD-83-11,.18 NRC 293, 295 (1983).

--JMoreover, -Del-Aware is collaterally estopped from attacking the previous rulings by the Director which, as

. explained, decided in Applicant's favor the issue which Del-Aware seeks. to raise here again. Fo r .the sake of brevity,- . Applicant- incorporates- its previous argument l discussed i n - S e c t i o n '. I I I of its . Comments on Del-Aware's

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! Request Under.10 C.F.R.;S2.206, transmitted by letters dated

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. December- 29,.1983 at.12-14:and August- 21,'1984 at 10.

For these reasons,-' Del-Aware has failed to demonstrate that aLproceeding should be instituted pursuant to Sections

--2.202 and-2.206 of the Commission's Rules of Practice.

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