ML20141D781

Response Opposing Licensee 860319 Motion for Directed Certification of ASLB 860313 Memorandum & Order Granting Rl Anthony Petition for Leave to Intervene.W/Certificate of Svc

ML20141D781
Person / Time
Site:	Limerick
Issue date:	04/03/1986
From:	Rutberg J, Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#286-650 OLA, NUDOCS 8604080271
Download: ML20141D781 (14)

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00CMETED UNITED STATES OF AMERICA USNPC NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSINGMPhNt4BdN.Il3 0

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PHILADELPHIA ELECTRIC COMPANY ) Docket No. 50-352 OLA-1

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.(Limerick Generating Station, )

Unit 1) )

RESPONSE OF NRC STAFF IN OPPOSITION TO LICENSEE'S MOTION FOR DIRECTED CERTIFICATION OF LICENSING BOARD'S MEMORANDUM AND ORDER GRANTING ROBERT L. ANTHONY'S PETITION FOR LEAVE TO INTERVENE Benjamin H. Vogler Counsel for NRC Staff Joseph Rutberg Assistant Chief Hearing Counsel April 3,1986

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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

. BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

PIIILADELPIIIA ELECTRIC COMPANY ) Docket No. 50-352 OLA-1

) (Check Valves)

(Limerick Generating Station. )

Unit 1) )

RESPONSE OF NRC STAFF IN OPPOSITION TO LICENSEE'S MOTION FOR DIRECTED CERTIFICATION OF LICENSING BOARD'S MEMORANDUM AND ORDER GRANTING ROBERT L. ANTIIONY'S PETITION FOR LEAVE TO INTERVENE Benjamin H. Vogler Counsel for NRC Staff Joseph Rutberg Assistant Chief Hearing Counsel 4

April 3,1986

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

. BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

. In the Matter of )

)

PIIILADELPIIIA ELECTitIC COMPANY ) Docket No. 50-352 OLA-1

) (Check Valves)

(Limerick Generating Station. )

Unit 1) )

RESPONSE OF NRC STAFF IN OPPOSITION TO LICENSEE'S MOTION FOR DIRECTED CERTIFICATION OF LICENSING BOARD'S MEMORANDUM AND ORDER GRANTING ROBERT L. ANTHONY'S PETITION FOR LEAVE TO INTERVENE I. INTRODUCTION On March 13, 1986, the Atomic Safety and Licensing Board (Licens-ing Board) designated to rule on requests for hearings and petitions for leave to intervene in connection with Philadelphia Electric Ccmpany's (PECo) first amendment request, determined that the petition for leave to intervene of Mr. Robert L. Anthony met the threshold requirements for admission set out in 10 C.F.R. S 2."14 and scheduled a prehearing con-ference for March 27, 1986 in Philadelphia, Pennsylvania. E IIowever, the Licensing Board ruled that before Mr. Anthony may be admitted as a party to the proceeding, he must advance at least one acceptable conten-tion . Memorandum at 10. On March 19, 1986, the Philadelphia Electric Company (Licensee) filed its request for directed certification of the above Memorandum and Order of the Licensing Board seeking a determi-nation that the Licensing Board abused its discretion in permitting 1/ Philadelphia Electric Company (Limerick Generating Station, Unit 1)

Memorandum and Order, slip of, at 10. (March 13,1986)

31r. Anthony's late intervention. For the reasons set forth below the NRC staff (Staff) opposes the Licensee's motion.

II. BACKGROUND On December 18, 1985, the Licensee, in a letter to the NRC, re-quested an amendment to its Limerick Unit 1 operating license.1*/ The Licensee requested, on a one-time-only basis, approval for temporarily extending certain surveillance requirements in the Technical Specifica-tions. The surve%mee is to be performed nominally every 18 months.

For flexibility purposes there is a built in 25 percent extension allowed by the Technical Specifications. The requested change would extend the 18 month surveillance interval by fourteen weeks beyond the period per-mitted by the Technical Specifications including the 25 percent built in extension. The extension would permit the Licensee to delay performing the testing of certain check valves until a maintenance and surveillance outage which is scheduled to begin on or before May 26, 1986. 3/ The surveillance can be done only when the plant is in a shut down condition.

See, Safety Evaluation , Support Amendment No. 1 (February 6, 1986) at 2.

The NRC staff after a review of the Licensee's request determined that the condition of the valves in question would not change significantly during the short extension period and concluded that:

2_/ Letter dated December 18, 1985 from Eugene J. Bradley to Ilarold R.

Denton .

3_/ During a prehearing conference on March 27, 1986, the Licensee advised that the maintenance and surveillance outage could take place as early as the beginning of May,1986.

(1) there is reasonable assurance that the health and safety of the public will not be endangered by operation in the pro-posed manner, and (2) such activities will be conducted in compliance with the Commission's regulations and the issuance of this amendment will not be inimical to the common defense and security nor to the health and safety of the public.

Safety Evaluation, Support Amendment No.1, Facility Operat-ing License No. NPF-39, Philadelphia Electric Company (Lim-crick Generating Station , Unit No. 1) at 3, (February 6, 1986).

A notice of the Staff's proposed determinations that there was no significant hazard posed by the requested amendment and that interested parties had an opportunity to comment and request a hearing by January 26, 1986 was published in the Federal Register on December 26, 1985.1 On January 30, 1986 5_/ and February 5,1986, Mr. Anthony filed requests for a hearing and petitions to intervene in this matter. Subse-quently, on February 15, 1986, Mr. Anthony filed a document containing, inter alia, eleven contentions concerning amendment number one to the Limerick license. In a Memorandum and Order, dated March 6,1986, the Licensing Board directed the Licensee and the Staff to be prepared to have in the hands of the Licensing Board no later than 12:00 noon, Mon-day, March 17, 1986, their respective responses to Mr. Anthony's conten-tions in the event the petition to intervene was provisionally granted. -

On March 13, the Licensing Board advised the Licensee and the Staff that 4/ 50 Fed. Reg. 52874 (December 26, 1985).

-5/ By letter dated February 6,1986, William L. Clements, Chief, Dock-eting and Service Branch, returned Mr. Anthony's January 30 peti-tion because the NRC's Office of the General Counsel had determined that the petition failed to conform to the requirements for pleadings found in the NRC's regulations, ilowever, the Licensing Board took into consideration both of Mr. Anthony's petitions in concluding that Mr. Anthony had met the threshold requirements for intervention.

6/ Id_. slip oj. at 2, March 6,1986.

Mr. Anthony's petition to intervene had been provisionally granted and that responses to his contentions were due as previously directed. 7/

The Licensing Board also advised that a prehearing conference would be

. convened in Philadelphia on March 27 to consider any additional petit!cns that might be filed, Mr. Anthony's contentions and any additional or amended contentions. 8_/ - In its Memorandum and Order provisionally granting Mr. Anthony's petition, the Licensing Board found that although the petition had been filed some four days af ter the deadline set forth in the Federal Register, due to the circumstances in this matter it should not be rejected as untimely. 9/ The Licensing Board also found that, while good cause was not specifically addressed by Mr. Anthony, he had established good cause for his late filing and that a balancing of the oth-er four factors as found in 10 C.F.R. S 2.714(a) for consideration of late-filed petitions were favorable to Mr. Anthony. -10/ Finally, the Licensing Board found that Mr. Anthony had satisfied the aspects re-quirement for intervention through his allegations concerning the possible failure of an instrumentation line. S On March 19, 1986, the Licensee filed its motion for directed certification.

7_/ Memorandum and Order, slip op. at 11, March 13,1986.

8/ Id.

l - 9/ Memorandum and Order, slip of. at 7, March 6,1986.

10/ Id. at 7.

11/ Id. at 8-10.

l l

4

III. DISCUSSION A. Standards for Directed Certification The Commission's regulations provide the Appeal Board with the au-thority to direct the certification of questions initially raised before a Licensing Board without awaiting the final decision in a proceeding.

10 C.F.R. SS 2.718(i); 2.785(b)(i). E The Appeal Board has set forth the principles that it will follow in determining whether in a particular situation it will exercise its au thority . E The standard that has developed is that the moving party must demonstrate that the decision eithe.* (a) threatens the moving party with immediate and serious irrepa-rable harm, not capable of being rectified on later appeal, or (b) affects the basic structure of the proceeding in a pervasive and unusual manner.

In setting this standard, the Appeal Board has also made it clear that its directed certification authority will be exercised sparingly and only under the most compelling circumstances. E In addressing the question of whether directed certification should be granted in connection with the admission of contentions, the Appeal Board has indicated that it is reluctant to interject itself at the contention

-12/ See, Public Service Company of New IIampshire (Seabrook Station, UiiIts 1 and 2), ALAB-271,1 NRC 478, 482-83 (1975).

13_/ Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-4u5, 5 NRC 1190 (1970).

-14/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant , Units 1 and 2), ALAD-504, 8 NRC-406, 410 (1978); Arizona Public Service Company (Palo Verde Nuclear Generating Station ,

Units 2 and 3), ALAB-742,18 NRC 380, 383 (1983).

stage of the proceeding through the use of directed certification. E Furthermore, while interlocutory appeals are generally disfavored, 10 C.F.R. S 2.714a provides that an order granting or denying interven-tion may be appealed, as an exception to 10 C.F.R. S 2.730(f). E The Appeal Board will not direct certification merely because it is alleged that the Licensing Board has made an erroneous ruling which has the effect of expanding the hearing or introducing a new subject matter. 17 / In denying directed certification the Appeal Board stated in Perry that:

In each instance, a party sought directed certification of a ruling that was assertedly in conflict with Commission case law , policy, or regulation and that effectively expanded the scope or length of a licensing proceeding. We denied direct-ed certification, however, finding no pervasive or unusual effect on the basic structure of each proceeding. In sum, a licensing board may well be in error but, unless it is shown that the error fundamentally alters the very shape of the ongoing adjudication, appellate review must await the issuance of a " final" Licensing Board decision. Id. at 1113.

Finally, the Appeal Board has also made it quite clear that in ad-dressing a motion for directed certification it expects the parties to have at least some discussion of the petitioner's claim of the Licensing Board's error. E H/ Duke Power Company (Catawba Nuclear Station , Units 1 and 2),

ALAB-768,19 NRC 988, 992 (1984).

16/ Accordingly, once the Licensing Board rules on Mr. Anthony's pro-posed contentions, it would be permissible for the aggrieved party to seek appellate consideration of that decision.

-17/ Cleveland Electric Illuminating (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675,15 NRC 1105,1113 (1982).

18/ Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-734,18 NRC 11,14 n.4 (1983).

B. Licensee Has Not Demonstrated That The Subject Of The Request For Directed Certification Is Appropriate For Appellate Review

. In its Motion, Licensee sets forth a number of arguments in support of its position that this matter is ripe for directed certification. Mo'c.an j

- 1 at 2-3. The essence of the Licensee's position is that the determination by the Licensing Board to consider Mr. Anthony's late filed petition was incorrect. This determination, according to the Licensee, was based on an incorrect application of the regulations and appropriate case law and has the effect of causing the Licensee immediate and serious irreparable harm which, as a practical matter, will not be alleviated by later appeal.

Furthermore, because the Licensing Board's decision may result in a hearing that would not otherwise be held, the licensee contends that the decision will affect the basic structure of the proceeding in a pervasive manner. Motion at 21-26.

Accordingly, the Appeal Board must determine whether the errors allegedly made by the Licensing Board are so fundamental that there is in fact irreparable harm to the Licensee that cannot await the appellate process in 10 C.F.R. S 2.714a and whether the proceeding is pervasively affected by the Licensing Board's rulings. The Staff believes that the Licensee has not established it will suffer irreparable harm and that any errors made by the Licensing Board are correctable by the regular

! appellate process. The extraordinary relief of directed certification is not warranted.

The alleged errors revolve around the willingness of the Licensing Board to address Mr. Anthony's petition rather than to dismiss the petition without further consideration because it was filed late. A Licensing Board's determination to consider a pleading filed late will not be overturned unless in reaching its conclusion to consider such a

document the Licensing Board abuses its discretion. b In this case, the Licensing Board, acting well within its discretion, determined that Mr. Anthony established that he made an effort to file his petition expeditiously, once he received the January 28, 1986 letter from the Staff to Mr. Bauer enclosing a copy of the Federal Register notice.

Mr. Anthony explained the circumstances surrounding his late filing and the Staff cannct conclude that the Licensing Board abused its discretion in accepting his arguments as justification for the late filin g. This situation is quite different from the recently decided Pilgrim case referred to by the Licensee. 20/ -

In that case, the intervenor made no reference to the fact that it had fDed late and did not address the five factors set forth in 10 C . F . R . S 2.714(a). ALAB-816 at 464. In the present sit uation , while Mr. Anthony did not explicitly address the lateness factors, the Licensing Board determined that Mr. Anthony explained the circumstances surrounding the receipt of the notice of the amendment and that his explanation satisfied the good cause criteria.all L The Licensing Board, having determined that good cause had been established for the late filing, addressed the other factors in 10 C.F.R.

S 2.714(a). As noted earlier, Mr. Anthony did not explicitly address the

~

19/ Florida Power and Light Company (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-420, 6 NRC 8 (1977), affirmed , C LI-7 8- 12, 7 NRC 939 (1978).

20/ Boston Edison Company (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461 (1985).

21/ The Staff does not mean to suggest that the time limits set forth in the Federal Register Notice are to be ignored with impunity. Clear-ly, the time limits are to be strictly adhered to unless the criteria set fortn in 10 C.F.R. S 2.714(a) are met. in this case, the Li-censing Board has determined that the criteria have been met.

_g-remaining lateness factors; however, the Licensing Board, based on its analysis of Mr. Anthony's pleadings as a whole weighed the other factors and found them favorable to Mr. Anthony. f"2/ -

The Appeal Board has made it clear that even where it might not be in complete agreement with a Licensing Board's analysis of each discrete lateness factor, there would have to be a situation where the judgement was " patently inconsistent" with prevailing case law before there would be any consideration of di-rected certification. 2"3/

The Licensee argues that if the Appeal Board does not direct certifi-cation at this time it will suffer irreparable harm and that the decision of the Licensing Board will affect the proceeding in a pervasive and unusual manner. Motion at 23. The Staff does not agree. The amendment that is the subject of this proceeding has been granted b snd the Limerick facility will operate during any proceeding that may res ult from Mr. Anthony's petition to intervene. The only potential irreparable harm referred to by the Licensee is derived from the desire of the Licensing Board to conclude this matter prior to May 26, 1986. b As long as the Limerick facility continues to operate during any proceeding the Staff 2,2 2 / The Staff does not believe that it was error for the Licensing Board to consider Mr. Anthony's rejected pleading with his acceptable pleading, since it was attached to his February 5,198G pleading and was referenced therein.

-23/ Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 NRC 1105 (1982); St. Lucie, supra.

2_4 4 / 50 Fed. Reg. 52874.

-25/ The latest date that the plant is scheduled to be shut down for nor-mal repair and maintenance. See, fn. 3, supra.

does not believe that the Licensee has established that it will suffer any harm.

Moreover, it is true that, but for the decision of the Licensing

. Board to ultimately determine that Mr. Anthony has a valid contention, there would be no proceeding at this time in connection with this amendment. However, the Licensing Board has not yet determined that at least one valid contention has been submitted and until it issues its ruling with regard to proposed contentions, it is premature to consider the impact of a hearing. Once the Licensing Board determines whether a hearing is warranted, it will then be appropriate to consider those issues on appeal pursuant to 10 C.F.R. S 2.714a.

IV. CONCLUSION For the reasons set forth above, the Staff opposes the Licensee's request for directed certification.

Respectfully sulinitted, hc/

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Denjamin II. Vogler Counsel for NRC Staff WCJ k O'

! O V.

j Joseph Rutberg Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 3rd day of April,1986 m

,- - - - , - - , , ,, --a-

m DOCKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 86 APR -4 ml 55

. BEFORE THE ATOMIC SAFETY AND LICENSING ' BOARD

. In the Matter of ) OFFICE 00CKETg OF R[

)

PHILADELPHIA ELECTRIC COMPANY ) Docket No. 50-352 OLA-1

) (Check Valves)

(Limerick Generating Station. )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " RESPONSE OF NRC STAFF IN OPPOSITION TO LICENSEE'S MOTION FOR DIRECTED CERTIFICATION OF LICENSING BOARD'S MEMORANDUM AND ORDER GRANTING ROBERT L.

ANTHONY'S PETITION FOR LEAVE TO INTERVENE" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, or as indicated by a double asterisk by hand-delivery, this 3rd day of April,1986:

Ivan W. Smith, Chairman (2) Mr. Edward G. Bauer, Jr.

Administrative Judge Vice President & General Counsel Atomic Safety and Licensing Board Philadelphia Electric Company U.S. Nuclear Regulatory Commission 2301 Market Street Washington, D.C. 20555** Philadelphia, PA 19101 Dr. Richard F. Cole Troy B. Conner, Jr., Esq.

Administrative Judge Mark J. Wetterhahn, Esq.

Atomic Safety and Licensing Board Conner and Wetterhahn U.S. Nuclear Regulatory Commission 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20555** Washington, D.C. 20006 Mr. Gustave A. Linenberger, Jr. Mr. Marvin 1. Lewis Administrative Judge 6504 Bradford Terrace Atomic Safety and Licensing Board Philadelphia, PA 19149 U.S. Nuclear Regulatory Commission Washington, D.C. 20555** Joseph II. White. III 15 Ardmore Avenue

. Mr. Frank R. Romano Ardmore, PA 19003 Air and Water Pollution Patrol 61 Forest Avenue Ms. Phyllis Zitzer, President

- Ambler, PA 19002 Ms. Maureen Mulligan Limerick Ecology Action Kathryn S. Lewis, Esq. 762 Queen Street 1500 Municipal Services Bldg. Pottstown, PA 19464 15th and JFK Blvd.

Philadelphia, PA 19107

Thomas Gerusky, Director Barry M. Hartman Dureau of Radiation Protection Governor's Energy Council Dept. of Environmental Resources P.O. Box 8010 5th Floor, Fulton Bank Building 300 N. 2nd Street Third and Locust Streets llarrisburg, PA 17105 Harrisburg, PA 17120

, Spence W. Perry, Esq.

Director Associate General Counsel Pennsylvania Emergency Management Federal Emergency Management Agency Agency, Room 840 Basement, Transportation & Safety 500 C Street, S.W.

Building Washington, D.C. 20472 Harrisburg, PA 17120 Robert J. Sugarman, Esq.

Robert L. Anthony Sugarman, Denworth a llellegers Friends of the Earth of the 16th Floor Center Plaza Delaware Valley 101 North Broad Street 103 Vernon Lane, Box 186 Philadelphia, PA 19107 Moylan, PA 19065 James Wiggins Angus R. Love, Esq. Senior Resident Inspector Montgomery County Legal Aid U.S. Nuclear Regulatory Commission 107 East Main Street P.O. Box 47 Norristown, PA 19401 Sanatoga, PA 19464 Charles W. Elliott, Esq. Atomic Safety and Licensing Drose & Poswistilo Board Panel 325 N.10 Street U.S. Nuclear Regulatory Commission Easton, PA 18042 Washington, D.C. 20555*

David Wersan Atomic Safety syd Licensing Appeal Consumer Advocate Board Panel @)

Office of Attorney General U.S. Nuclear Regulatory Commission 1425 Strawberry Square Washington, D.C. 20555' IIarrisburg, PA 17120 Docketing and Service Section Jay Gutierrez Office of the Secretary Regional Counsel U.S. Nuclear Regulatory Commission USNRC, Region 1 Washington, D.C. 20555' 631 Park Avenue King of Prussia, PA 19406* Gregory Minor MilB Technical Associates Steven P. Hershey, Esq. 1723 IIamilton Avenue Community Legal Services, Inc. San Jose, CA 95125 5219 Chestnut Street Philadelphia, PA 19139 Timothy R. S. Campbell, Director Department of Emergency Services 14 East Biddle Street

. West Chester, PA 19380

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Benjamin H. Vogler Counsel for NRC Staff