ML20141N182

Response Opposing Rl Anthony & Friends of the Earth 860212 Request for Stay of Effectiveness of Issuance of Amend 1 to License.Certificate of Svc Encl

ML20141N182
Person / Time
Site:	Limerick
Issue date:	02/27/1986
From:	Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC COMMISSION (OCM)
References
CON-#186-253 OLA, NUDOCS 8603040456
Download: ML20141N182 (13)

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UNITED STATES OF AMERICA UNC NUCLEAR REGULATORY COMMISSION BEFORE TIIE COMMISSION '86 FEB 28 TJ0:56 Lir' In the Matter of ) 0;ci

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PillLADELPIIIA ELECTRIC COMPANY ) Docket Nos. 50-352

) OLA (Limerick Generating Station, )

Unit 1) )

RESPONSE OF NRC STAFF IN OPPOSITION TO REQUEST FOR A STAY BY ANTIIONY/ FOE REGARDING ISSUANCE OF LICENSEE'S AMENDMENT Benjamin 11. Vogler Counsel for NRC Staff February 27, 1986 st;PiB82R81!88ljp o

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

. BEFORE TIIE COMMISSION I

In the Matter of )

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PIIILADELPIIIA ELECTRIC COMPANY ) Docket Nos. 50-352

)

(Limerick Generating Station, )

Unit 1) )

RESPONSE OF NRC STAFF IN OPPOSITION TO REQUEST FOR A STAY BY ANTIlONY/ FOE REG ARDING ISSUANCE OF LICENSEE'S AMENDMENT Benjamin II. Vogler Counsel for NRC Staff February 27, 1986

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION in the Matter of )

)

PillLADELPillA ELECTRIC COMPANY ) Docket Nos. 50-352

)

(Limerick Generating Station, )

Unit 1) )

RESPONSE OF NRC STAFF IN OPPOSITION TO REQUEST FOR A STAY BY ANTHONY / FOE REG ARDING ISSUANCE OF LICENSEE'S AMENDMENT I. INTRODUCTION On February 12, 1986, R . L. Anthony / Friends of the Earth in the 1)cInware Valley (collectively " FOE") filed with the Commission a request for c stay of the effectiveness of amendment number one issued by the NRC staff (Staff) to the Philadelphia Electric Company (Licensee) on February 6, 1986. For the reasons set forth below the NRC staff opposes FOE's request for a stay and urges that it be denied.

II. BACKGROUND On December 18, 1985, the Licensee, in a letter to the NRC, request-ed an amendment to its Limerick Unit 1 operating license. The Licensee requested permission, on a one-time-only basis, to temporarily extend the surveillance requirements of certain valves which under the Technical Specifications must be inspected nominally every 18 months; this surveil-lance can only be performed when the plant is shutdown. The change would extend the 18 month surveillance interval by fourteen weeks beyond

the maximum 25 percent extension allowed by the Technical Specifications.

l This amendment would permit the Licensee to delay performing the testing

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until a maintenance and surveillance outage which is scheduled to begin on or before May 26, 1986.

l 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. Specifically, the Staff concluded that:

The safety related aspects of extending this surveillance in-terval on a one time basis for about three months are insig-nificant for the following reasons. (1) Flow through the valves or from the lines in which they are located will be limited by the small line size and the provision of flow re-stricting orifices to further reduce potential flow rates, (2) Any leakage from these lines outside of primary contain-ment would be contained in the secondary containment and processed by the standby gas treatment system. The analy-sis of such an event has already been performed and is in-cluded in the Final Safety Analysis Report in Section 15.G.2.

As indicated in the FSAR there would likely be a variety of indicators to the operator of a failed instrument line thus alerting plant staff to the need to isolate the line by use of other manual valves in the line. The staff has previously reached the conclusion in section 15.6 of the SER that the Limerick instrument line design is acceptable . (3) The li-censee has examined the records of the initial flow testing performed on these valves and found that all valves were tested successf ully. The licensec further states that, based on available data, the valves are believed to be highly reli-able in performing their function of checking flow. The staff concludes that the condition of the valves is not expected to change significantly during the short extension period.

Based on the above, the NRC staff concludes that extension of the interval for the surveillance testing by 14 weeks on a one-time only basis is acceptable because the increased sur-veillance interval does not significantly increase the possibill-

. ty that a undetected failure will occur in the instrumentation line excess flow check valves covered by this Technical Spec-ification . Safety Evaluation, Support Amendment No.1, Fa-cility Operating Licenne No. NPF-39, Philadelphia Electric Company, (Limerick Generatin g S tation , Unit No.1), at 2, (February 6,1986.)

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On January 30, 1986, FOE filed a petition to intervene in this matter in connection with the Licensee's request for an amendment, 1 and on February 5,

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1986, supplernented that request with an amended petition.

The NRC staff has opposed FOE's petition in a pleading filed before the Licensing Board on February 25, 1986. On February 10, 1986, FOE, after receiving notice of the issuance of Licensee's amendment number one, filed its present one page request for a stay, and in that pleading incorporated by reference its two previous petitions to intervene in this matter. On February 15, 1986, FOE filed yet another pleading containing eleven " con-ter. tion s . " At the end of this pleading FOE renewed its request for a stay. Petition at 3 (February 15, 1986). E# For the reasons that follow, the NEC staff opposes FOE's request for a stay.

Ill. DISCUSSION A. The Standards For A Stav The traditional requirements for determining whether to grant or deny a stay are contained in 10 C.F.R. 5 2.788(e). Specifically, that regulation provides that:

1/ By letter dated February 6, 1980, William L. Clements, Chief, NRC Docketing and Service Branch confirmed an earlier telephone conver-sation with FOE and returned FOE's petition and advised that the N R C's Office of General Counsel had determined that its petition failed to conform to the requirements for such pleadings as contained in the N R C's regulations . Accordingly, Mr. Clements stated that FOE's petition would not be docketed, but noted that when a con-forming petition from FOE was received it would be docketed.

2/ While the Staff will address in the present pleading FOE's request for a stay included in its February 15, 1986 pleading, it will reserve discussion of the " contentions" set forth in that pleading until such time as they are considered by the Licensing Board.

l In determining whether to grant or deny an application for a i

stay, the Commission, Atomic Safety and Licensing Appeal

! Doard, or presiding officer will consider:

l (1) Whether the moving party has made a strong show-l ing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless

a stay is granted; 1

(3) Whether the granting of a stay would harm other j parties; and (4) Where the public interest lies.

Addressing these factors, the Appeal Board has noted:

The burden of persuasion on these factorc rests on the mov-ing party. While no single factor is dispositive, the most crucial is whether irreparable injury will be incurred by the novant absent a stay . To meet the standard of making a strong showing that it is likely to prevail on the merits of its i appeal, the movant must do more than merely establish possi-ble grounds for appeal. In addition, an " overwhelming show-ing of likelihood of success on the merits" is necessary to obtain a stay where the showing on the other three factors is w eak . Alabama Power Company (Joseph M. Farley Nuclear Plan t , Units 1 and 2), C L I 2 7, 14 NRC 795, 797 (1981)

(footnotes omitted) ; see also, Public Service Company of Indiana, Inc. (Marble 11111 Nuclear Generating Station, Units 1 l

Eiid~D , ALAB-437, 6 NRC 630, G32 (1977); Philadelphia l Electric Company (Limerick Generating Station , Units 1 and ;), ALAH-789, 20 NRC 1443,1446, (1984).

B. Evaluation of FOE's Request in its present pleadings, FOE has failed to address in any meaningful manner the specific requirements of the 10 C.F.R. S 2.788(e). Ilowever, the Staff will nonetheless address FOE's limited assertions in support of its request for a stay in light of the four standards.

1. Likelihood of Prevailing on the Merits With respect to the first criterion, FOE simply alleges that it will prevail on the merits because th a tests were included in the Technical

Specifications to assure reactor operation would not pose a hazard and to go beyond the specifications would pose such a hazard. FOE pleading, at 3, (I'ebruary 15, 1986). This single statement constitutes the total of FOE's discussion of this factor, and as such is insufficient to support the requested stay. The Staff, in its review of the amendment, has expressly concluded "that extension of the interval for the surveillance testing by 14 weeks on a one-time basis is acceptable because the increased surveillance interval does not significantly increase the possibility that a undetected failure will occur in the instrumentation line excess flow check valves cov-ered by the Technical Specification." Safety Evaluation, Support Amend-ment No. 1, Facility Operating License No. NPF-39, supra , at 2.

(February 6, 1986). Moreover , the Staff has determined that "the condition of the valves is not expected to change significantly during the short extension period" . Id. FOE makes no effort to address the reasonableness of the Staff's conclusion on the safety significance of the amendment and its empty assertion to the contrary is neither helpful nor persuasive and does not establish a reasonable likelihood that it will subsequently prevail on the merits.

2. Whether the Party Will Be Injured Unless A Stay Is Granted The second factor - irreparable injury - is the most important of the four stay criteria. (See, Westinghouse Electric Corporation (Exports to the Philippines), CLI-80-14, 11 NRC 631, 662 (1980)). Although FOE makes no effort to specifically address this factor, it does allege in its amended petition that in case of an accident (brought on by the one-time fourteen week schedular amendment) Mr. Anthony's life could be threat-ened. Amended Petition (February 5, 1986). FOE further asserts that:

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. .. our life could be threatened as a consequence of postponing the tests on inetrumentatien lines. That threat added to many other unsafe aspects cf the plant

, itself and its operation could force my wife and me to sell cur property and seek employment and a place to live outside the PECo area with accompanying financial and social loss, if we stay where we are we will also be hit with successive rate hikes like the present 28S one to pay for Limerick, FOE, Amended Petition (February 5, 1986).

This expression of concern is simply without merit and clearly centrary to Staff's conclusion supporting the issuance cf this amendment. See, Safety Evahmtion , supra, at 2.

In addition, the issue of econo:nic losses - teing forced to me.e from the Limerick area or being subject to oppress ive rate hikes - has been rair,ed by FOE in previous . stay requests and has been previously rejec ted . Over two years ago, the Appeal Board addressed this same con-cern and concluded that:

. . . With respect to the economic concerns noted by FOE in titis connection, they are not within the proper scope of issues litigated in NRC proceedings. The Com-mission has just recently reaffirmed its long-held view that a nuclear phnt's possible effect on rates, the utili-t y's solvency, and the like is best raised bcfore atate economic regulatory agencies. Public Service Co. of New ilam tire (Seabrook Station, U nit 2), CLI-84-0, 19 ER[tTI . ...

FOE has therefore failed to show that it is likely to pre-vail on the merits of its appeal and that it will be irrep-arably harmed unless the low power license is lif ted .

Nor has it shown that such action is within the public interest. Philadelphia Electric Company (Limerick Gener-ating Station, Units 1 and 2), ALAD-789, 20 N11C 14(3 (1984).

FOE's concerns, however well intended or sincerely felt, ncnetheless do not satisfy the required factor of irreparable injury.

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. 3. Whether the G, ranting of the Stay Will liarm Other Parties

- FOC's petitions are not persuasive with respect to its argument of harm to other parties. Only in its February 15, 1986 pleading doen FOE address the issue of harm to other partics and then only to say that pECo had ample opportunity to complete the tests and any loss that results from the delay should be PECo's responalbility. Petition at 3, (February 15, 1986). The Licensee, for its part, asserts that without granting the or.e time fourteen week amendment the Licensee would have to shut the plant down to perform the required tests. Application for Amendment of Facility Operating License NPF-39, at 2, (December 18, I

100B). In lir.ht of the fact that the Staff has concluded that there are no significant 6,afety aspects to this amendment. the shutting down of the i facility is not warranted, at this time. Moreover, a stay at this juncture could adversely impact the Licensee's power operations.

4. Where the Public Interest L_les FOE makes no meaningful attempt to address the issue of public interest. It simply asserts that the public interest lies above nli else l

in insuring safety, health and lives. Petition at 3, (February 15, 1086).

I j While no party contests the need to protect the health and safety of the pubi te , the proposed amendment simply does not pose a threat to the pubile .

In addition, FOE providen no support for the conclusion that it has net all of the criteris of 10 C.F.II 6 2.788(e) other than its empty assertion tr.ot:

. .. we have fulfilled the criteria for a stay with the specific statement of our vital interests and the threats to cur financial interests, safety and health in our

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submissions of 1/30/86 and 2/5/76. (sic) (emphasis added),

t FOE's blithe statement that it has fulfilled the criteria for a stay because of statements made in its submissions is incorrect. The present request falls far short of the criteria set forth in 10 C.F.R. $ 2.788(c) for grant- f frig a stay. Its bases amount to no more than conclusory assertions which do not equate to a strong showing that it is likely to prevail on the mer-its, do not establish that it will suffer irreparable harm if no stay is granted, and do not elucidate where the public interest lies. Previously, the Commission denied a request for a stay filed by FOE, in which it con-cluded that FOE failed to adequately address the stay criteria. Philadel-phia Electric Company, s3 ol. at 2, (December 20, 1984). In the Staff's view, FOE has again failed to meet the Commission's requirements in its present petition for a stay.

IV . CONCLUSION Based on the foregoing, FOE has failed to satisfy the requirements for the issuance of a atay under 10 C.F.R. $ 2.788(e) and its request should be denied.

Rospectfully sutnitted, -

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-lC. -. 2 jamin II. Vogler Counsel for M C Staff Dated at Dethesda, Maryland this 27th day of February, 1986

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00CKETED U%RC

, UNITED STATES OF AMERICA NI; CLEAR REGULATOltY COMMISSION 86 FEB 28 A10:56 DEFORE~ THE COMMISSION

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In the Matter of )

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PillLADEL?lllA ELECTRIC COXPANY ) Docket Nos. 50-352

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(Limerick Generating Station. ) ,

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copics of "RESPOT S E OF NRC STAFF IN OPPOSITIOli TO REQUEST FOP. A STAY DY ANTHONY / FOE REGARDING ISSU ANCE OF LIC ENf3 EE'E AMENDMEN7" in the above-captioned l>roceeding have been servea on the following by deposit in the United States ranil, first clacs, or ns indicated by an asterisk through deposit in the Gucionr Regulktory Commission'e internal mail system, thia 27th day of Febeunr", tM G.

Samuel J. Chilk 11erzel H. E. Plaino, Esq.

Office cJ the Sc.'rota;y General Councol U.S. Nuclear Regulatory Ccimmissian Offico of the General Counsel Washington , D,C. 20535* U.S. Nuehar 'negulatcry Commission hashingtort , D.C. 20555*

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

Adelinistrative Judge Vice President & General Counsel Atomie Safety and Licensing Donrd Philadelphia Electric Company U.S. Nuclosr Pegulatory Conr11sejon 2301 Merket Street Washington, D.C. 00555' Philadelphia, P A 19101 Dr. Richard F. Cole Troy B, Conner, Jr., Esq.

Administrativo Judgc Park J. Wetterhnhn, Esq.

Atomic Safety and Liennsing Board Cormer and Wetterhahn U.S. Nuclear llegulatory Co;nmission 1747 Pennnylvania Avenue, N.W. .

Unhington, D.C. 20555' Washington, D.C. 20006 Mr. Gustave A. Linenberger, Jr. Mr. Marvin I, Lewis AdmJnistrative Judge 6504 Dranford Terrace Atomic Safety and Licensing Board Philadelphia, PA 19149 U.S. Nuclear Regulatory Commiselon Washington, D.C. 2 0Z5

• Joseph II. White, lll 15 Ardmore Asentm Mr. Frank R. Romtno Ardmore, P A 19003 Air and Yater Pcitution Patrot 61 Forest Avenue Ambler, PA 19002

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Ms. Phyllis Zitzer, President Kathryn S. Lewis, Esq.

J . Ms. Maureen Mulligan - 1500 Municipal Services Bldg.

Limerick Ecology Actica '

15th and JFK Blvd. i j . 76% Cueen Stroci- Philadelphia, PA 19107

• Pottstown, P A 19464 ,

i Thomas Gerusky, Director Barry M. Hartman

Bureau of Radiation Protection Governor's Energy Ccuncil l Dept. of Environmental Resourees P.O. Box- 8010 5 Sth floe;, Fulton Dank Duilding 300 N. 2nd Street ,

Third nnd Locust Streete liarrisburg, PA 17105 i lierrisburg, PA 17120 i j Spence W. Perry, Esq. *

! Director Asscciate General Counsel l Pennsylvr.nia Emerpmey #nnagener.t Federel Emergency Management j Agency Agency, Room 840 t

Dasement, Trcusporteuon & Safety 509 C Street, S.W. "

Building Washington, D.C. 20472 i Harriebur6, P A 17120 +

l Robert J. Sugarman. Esq.

l Ecbert L. Anthony Sugarms,n, Denworth : t.11ellegers  ;

j Friends of the Earth of the 16th Floor Center Plade  :

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Dolae;are VaUey 101 North Broad St?cet s

103 Vernon Loue, Bo,x 130 Philaaelphia, PA 19107 j Noylan, PA 19065 #

! James Wiggins '

) ringus !! . Love, Esq. Senior Eceident inspector

• Montgomery County Legal Aid U.S. Nuclear Rcghtgtory Commission '

107 rast Main Street P.O. Box 47

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Norristnwn, P A 13401 Sanaloga, PA 19464

Charles V, Elliott, Esq. Atomic Safety and Licensing [

l 13 rose 1 Postvistilo Board Panel '

325 N. to Street U.S. Nuckar Regulatory Commission

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Easton, PA 38042 Washington, D.C. 2056P David Worsen Atomic Safety and Licensing Appeal  !

Consuner Advocate Doard Panel (8)

Office of Attorney Ger. oral U.S. Nuclear Hegulatory Commisalon '

L 125 Strawl>erry Square Washington; D .C. 20555*

Harrisburg, P A 27120 ,

Docketing and Service Section '

Jay Gutierre: Office of the Secretrity l Regional Counsel

• U.S. Nuclear Regulatory Commiss!or USNRC, Region I Washington, D.C, 20555' 031 Park Avenue + '

King of Prunsta, PAf 13400 Gregory Ninor MlID Technical Associates .

Steven P. liershey Esq. 1723 Hamilton Avenue Community Legial Sersicos, Inc., San Jose, C A 95125 l 5219 Chestnut Street Philadelphia, P A 19139 '

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'iimothy A. S. Cs.mpoc11, Director Department of Emergene/ Services 14 East Diddle Street

- West Chester, PA 19380

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) 6 9/ r Benjamin II. Vogler Counsel for NRC Staff

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