ML20113A693

Forwards Util Comments Re 841121 Del-Aware Unlimited,Inc Request for Action Per 10CFR2.206 Concerning Supplemental Cooling Water for Facility.Request Should Be Denied

ML20113A693
Person / Time
Site:	Limerick
Issue date:	01/15/1985
From:	Conner T CONNER & WETTERHAHN
To:	Harold Denton Office of Nuclear Reactor Regulation
References
NUDOCS 8501210188
Download: ML20113A693 (11)

Text

. LAW OFFICES CONNER & WETTERII AIIN, P.C.

17 4 7 P EN N SYINAN I A AV EN U E. N. W.

. T'EY B. CO N N E R. J R. WASIt!NOTON D. C. 20000

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• mat anaesttso BW D. C Mr. Harold R. Denton Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washir.gton, 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:

In response to the letter to you from Robert J.

Sugarman, Esq. on behalf of Del-Aware Unlimited, Inc., dated November 21, 1984, which requests relief pursuant to 10 C.F.R. 52.206 and " Request for Action Under 10 C.F.R. S2.206 Regarding Supplemental Cooling Water for the Limerick Facility," 50 Fed. Reg. , I am hereby submitting

" Comments of Philadelphia Electric Company on Del-Aware's Request Under 10 C.F.R. 52.206." For the reasons stated more fully therein, the matters raised by Del-Aware are merely repetitious of previous requests for relief denied by the Director and in any event inappropriate under Section 2.206. Further, the matters discussed by Del-Aware fail to raise any significant environmental concern which warrants relief. Accordingly, the relief requested by Del-Aware should be denied.

Sincerely, b

Troy B. Conner, Jr.

cc: Eugene J. Bradley, Esq.

Robert J. Sugarman, Esq.

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P COMMENTS OF PHILADELPHIA ELECTRIC COMPANY ON -

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

- 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 pertinent 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 il will be during the Third Quarter of 1985, if an interim supply of supplemental cooling water _is available by May 1985. This represents a revision of two to five ' months from the previous . estimate - of the earliest commercial. operation date- and .will result in'an increase in the total cost-  !

of Limerick Unit #1 of'approximatelyl$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 Limerick Generating Station. Petitioner requests the Commission Staff to " require.that PECO-provide to the Commission a full disclosure of'its intended sources,

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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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Del-Aware before the Director and before the adjudicatory boards of the Commission. Del-Aware presents absolutely nothing new which would require the institution of a pro-ceeding pursuant to 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 and current status of this matter have been discussed.1! In particular, both the Director and the adjudicatory boards have. discussed 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 application.

" In accordance with the Commission's . regulations under 10 C.F.R. Section 1.101, 'it ' is the responsibility of the

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1/ See [ Cite] ALAB-785, 20 NRC 848 (1984), aff'q in pertinent part, LBP-83-11, 17 NRC 413 (1983);

LBP-74-44, 7 AEC.1098 (1974) , . af f'd in pertinent part, ALAB-262, 1 NRC 163 (1975); DD-84-13, 19 NRC 1137

( 19 '3 4 ) .

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 that an 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 of 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 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

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

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

b bte nOdiEcs "E to Ne Eoknt Plea" sank VNob NMbs problematical:

In my Decision, I determined that action on the part of NRC would be appropriate 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 construction permit. In my Decision, I further noted that PECO's current actions appear clearly directed at 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 water 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 nature. There is nothing in your letter which would cause me to reconsider this question.3/

2_/ DD-84-13, 19 NRC at 1141.

3/ Letter from Harold R. Centon, Director, Office of Nuclear Reactor Regulation to Robert J. Sugarman, Esq.

at 1-2 (June 29, 1984) (footnote omitted).

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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 I 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 1

alternatives to the river follower method must be examined.

The Board held:

What Del-Aware is secking, 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 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 ns and the parties promptly. . Tennessee Valley

- Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3) , ALAB-677,

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15 NRC 1387, 1391-94 (1982). And, as the Licensing Board correctly.- 7 obcerved, 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 .

e June 1, 1983 (unpublished), at 9

, n.3. The parties would also have o 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-778, 20 NRC 42, 48 (1984).

t it Thus, the Appeal Board placed the obligation upon PECO,

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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 7-1 t . . .

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~ . committed to the use of water - for :the Limerick Generating - - H Station as~ discussed in.the application.and asl. extensively-

litigated over. the l a s t d e c a d e , a n d i.: M r . Paquette's . letter -

1 does ' not represent any - deviation.

The . letter : merely .re -

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flects- a; change .in the' ' commercial- operation..date~;of Limerick. It also reflects the-: reality .that : sus _tained' .

_ 1 power,operat, ion'duringlthe summer months-may not be~possible

7 swithoutia' supplemental source of water.

.PECO's: stated' intention to ~ pursue" .-completion - of : the gi ,

, Point. Pleasant: ? project..~as the -sourceof;' supplementary

, - r. ' cooling, water,for Limerick was the.'very; basis of'theirecent-N

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4 decision by the Court of Common Pleas of Bucks County in 1- ~~

ruling that Neshaminy Water Resources Authority and Bucks County 'would . be required to take all necessary actions to completie the project.O 'In that decision, the Court granted PECO's~ request for specific ' performance of the contract

.between.PECO and NWRA to require it'"immediately.to recom-mence and complete construction of the Point Pleasant pumping station and the combined transmission main" and similarly ordered Bucks County "to do all things which are L 'necessary to implement and comply with its contractual 4

obligations so that the - construction and completion of the Point Pleasant pumping station and the combined transmission "5/

. main may be completed . . . .

In securing specific

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performance of the contract, PECO successfully argued that 4

-any attempt to obtain other sources of supplemental cooling;

-water for Limerick .would be frought with . uncertainty and

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would1 jeopardize the commercial operation of the : facility.

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(On this point, the . Court: emphatically - sustained ;PECO's position, stating:-

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2' -As a prerequisite "to the : issuance of-

an: -operating license by ? the .[ Nuclear]

' Regulatory Commission - (NRC) , .the succes .

sor to the~ Atomic Energy Commission

'(AEC),: the. licensing _ body- ' for - the '

w operation of Limerick, an . extensive; ienvironmental. impact study had been done J

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iDaniel J. Sullivan,Tet al.'v. County of-~ Bucks,'et al'.,

No.- 84-8358 ,(Pa. Ct. ' Common Pleas) . (January 3, 1985).

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-Id. tat 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 scarces. They have been swimming in tnese turbulent waters for

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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 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, 3 8_ . Additionally, the Court noted that Eere 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-there'is "no evidence to indicate that either DER, DRBC oro the United . States Corps of- Engineers , will authori::e -

withdrawal 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.

c.

parties must be prevented from using 10 C.F.R. 2.206 proce-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 1.73, 177 (1975); Pacific Gas and Electric Company -(Diablo Canyon Nuclear Power Plant, Units 1 and 2) , CLI-81-6, 13 NRC 443 (1981). See also Texas Utilities Generating Company

- (Comanche Peak Steam Electric Station, Unita 1 and 2) ,

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

Moreover, 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. For the sake of brevity, Applicant incorporates its previous discussed in-Section III of its Comments on Del-Aware's Request Under 10 C.F.R. 52.206, transmitted by letters dated December 29, 1983 at 12-14 and August 21, 1984 at 10.

For these reasons, Del-Aware has failed to demonstrate that a proceeding should be instituted pursuant.to Sections

' 2.202 an'd 2.206 of the Commission's Rules of Practice.

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