ML20101F080
| ML20101F080 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 12/24/1984 |
| From: | Wetterhahn M CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#484-806 LBP-84-31, OL, NUDOCS 8412270015 | |
| Download: ML20101F080 (12) | |
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-4 00CKETED USMC UNITED STATES OF AMERICA
'84 FC 26 AJ1:09 NUCLEAR REGULATORY COMMISSION hf[-k C k.
Before the Commission e,
In the Matter of
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Philadelphia Electric Company
) ' Docket Nos. 50-352 d k
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50-353 0 '
.(Limerick Generating Station,.
)'
Units 1 and 2)
)
APPLICANT'S OPPOSITION TO LIMERICK ECOLOGY ACTION'S MOTION FOR STAY OF LBP-84-31 SUSPENSION OF LOW POWER FACILITY OPERATING LICENSE NPF-27, AND/OR PROHIBITION OF LOW-POWER TESTING Preliminary Statement i?
. On December 10, 1984, Limerick Ecology Action (" LEA") moved the Commission for an order " staying LBP-84-31, suspending the low-power operating license
[for Limerick Generating Station, Unit 1
(" Limerick")], or otherwise prohibiting low-power testing."O The sole
-ground for the relief sought is alleged arror by-the Atomic Safety and Licensing Board (" Licensing Board") in rejecting a contention related to the Commission's obligation under the National Environmental Policy Act of 1969 ("NEPA") to require the installation of safety systems not
.otherwise required by its safety regulations.
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Motion. for Stay of LBP-84-31, Suspension of Low-Power Facility Operating License NPF-27, and/or Prohibition of Low-Power Testing.
In Philadelphia Electric Company (Limerick. Generating Station, Units 1 and 2), " Order," slip op, at 2 n.1 (October 29, 1984)
(unpublished), the Appeal Board held that the criteria for a stay contained in 10 C.F.R. $2.788(e) apply to a motion to suspend an
-operating license.
8412270015 841224 3
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l tes In a,. motion which was served on November 16, 1984, LEA sought essentially the identical relief before the Atamic Safety and Litensing Appeal Board (" Appeal Board").
On November 23, 1984, the Appeal Board dismissed the motion stating that LEA's stay request was more than two months late and even if the motion were timely "it raises nothing that would warrant a change in our previous decision denying [other parties']
stay motions."S The instant request to the Commission was filed some 17 days after the dateoof the Appeal Board's denial of LEA's motion for a stay.
Applicant, Philadelphia Electric Company, opposes the relief sought as untimely and without merit.
Argument I.
LEA's Motion For Suspension of the Operating License is Late-Filed.
The Licensing Board's Second Partial Initial Decirion dated August 29, 1984 authorized the Director of Nuclear Reactor Regulation to issue a license permitting fuel load and low-power testing up to 5% of rated power for the Limerick Generating Station.S LEA recognized that this decision by the Licensing Board triggered its right to appeal the denial of the subject contention by filing a Notice of Appeal and subsequent brief.4/
As recognized by the Appeal Board, pursuant to 10 C.F.R.
2/
Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), Memorandum and Order (November 23, 1984) (unpublished)
(slip op, at 1, 3).
3/'
Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-84-31, 20 NRC 446, 599 (1984),
4/
See for example, LEA " Notice of Appeal" (September 3, 1984).
l
6 5 2. 7 88 (a).,.
a request for a stay must be filed within 10 days after service of a decision or action.5/
The Appeal Board found that the motion for suspension of low-power license was more than ' two months late.- It further noted that LEA failed to acknowledge the delay, and it made "no attempt whatsoever to explain the reason for it."6_/
In the instant motion, even after being admonished by the Appeal Board for its extreme lateness, as conpounded by the additional 17-day delay in seeking a stay before the Commission on essentially the same grounds, LEA does not even. attempt to address the reasons for its lateness let z
alone show good cause. LEA's notion should be denied as late.
II.
LEA Fails to Meet its Burden'of Persuasion for a Stay Pursuant to the Requirements of 10 C.F.R. 52.788.
Aside frem being late-filed, LEA's motion fails to meet the Com-mission's gyf tc~ia necessary to support the issuance of a stay.
In determining whether to grant or deny an application for a stay, the Commission is required, pursuan*
- 10 C.F.".
52.788;e', to considet:
(1) Wher'Ter the moving party nas made a strong showing that it is likely o prevail on the merits; (2) whether the' ~ party will be irreperably injured unless a stay is granted; (3) whether the grantit.. of a stay woulc harm 7
other parties, and 5f Limerick, supra, Memorandum and Order, slip op. at 1 (November'23, 1984).
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(4) where the public interest lies.7_/
As the moving party, LEA bears the burden of persuading the Commission M
g that it is entitled to the relief which it seeks.8/ This burden is even y
p greater where the Appeal Board summarily denied the motion on essential-ly the same grounds advanced before the Commission. As discussed below, it has failed to demonstrate it is entitled to the relief it seeks.
The first criterion regarding grant of a stay is whether the moving E
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party has made a strong showing that it is likely to prevail on the merits.
Where, as here, there is no showing of irreparable injury f
absent a sta;' and the other criteria do not support its issuance, on f
overwhelming showing of likelihood of success on the merits is required.9/ LEA has failed to meet its burden.
In an attempt to satisfy 5:
r this requirement, LEA merely incorporates its appellate brief and in conclusory manner states it has "made a
' strong showing' that it is n.
likely to prevail on the merits of its position."
LEA fails to even "i
1 y
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See generally Alabama Power Company (Joseph M.
Farley Nuclear Plant, Units 1 and 2), CLI-81-27, 14 NRC 795, 796-97 (1981);
Enviro'anental Radiation Protection Standards for Nuclear Power i
Operations, CLI-81-4, 13 NRC 298, 301 (1981); United States Department of Energy (Clinch River Breeder Reactor Plant),
g.
ALAB-721, 17 NRC 539, 543 (1982),
s-8_/
Farley, supra, CLI-81-27, 14 NRC at 797; Public Service Company of f
Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
~
~ALAB-493, 8 NRC 253, 270 (1978).
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Florida Power & Light Company (St. Lucie Nuclear Power Plant, Unit
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No. 2), ALAB-404, 5 NRC 1185, 1189 (1977).
10/ LEA Brief at 2.
This broad brush approach has been held to be f unfair to'a, party attempting to respond to a stay request.
Public 3
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Service Company'cf New Hampshire (Seabrook Station, Units 1 and 2),
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2 ALAB-356, 4.NRC 525, 540-41 (1976).
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inote that. its' appeal! relates to the alleged improper exclusion -_of a '
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contention.. Therefore, even fif -the contention were to be ultimately-Y indmitted,SLEA has failed to make any shoring whatsoever that it would prevail' ~ on < the -: merits.. of - the ' contention' if litigated.~11/
The : mere establishment.of._ possible E grounds. for appeal is not in and of itself sufficient to justify a stay.12/-
The second ' factor - regarding the grant or denial of a stay. is -
whether the party will be irreparably injured unless a stay is granted.
The irreparable injury - asserted is indeed an unusual one.
LEA' asserts sthat the failure of the environmental review for Limerick to consider
. design alternatives to mitigate the. risk of severe accidents' would result in some hypothetical increase in--risk to LEA's membership.
The
- alleged irreparable. injury-is' clearly remote - and speculative.
The
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11/ To the contrary, the Commission rejected a similar contention in the Hope Creek proceeding, where the intervenors claimed that NEPA required the Staff to amend the FES to discuss alternative.methode of -- protecting the facility from liquified : natural gas accidents
- that might occur.near the site.
Finding that the. probability'that
- such.. an accident could affect; the plant was. highly remote, the
- Appeal. Board dismissed the' argument as unfounded' stating:
~
The Supreme Court has emb' raced the doctrine,-
~first enunciated in Natural Resources Defense Council' v.
Morton, 458 F.2d 827, 837-38 (D.C.
Cir. 1972), that environmental impact-statements
- need not discuss the. environmental effects of-alternatives which are deemed only remote and speculative possibilities."
Vermont Yankee
. Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 551 (1978).
-Public Service Electric and Gas Ccmpan_y (Hope Creek Generating Station,-Units I and 2),.ALAB-518, 9 NRC 14, 38 (1979).
-M/ h Toledo Edison Company (Davis-Besse Nuclear Power Station, Units 1, 2 and 3),:ALAB-385, 5 NRC 621, 634 (1977).
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presidingfAtomic Safety..?andj Licensing' Board ; has' found the risk of-environmental,L including health. effects resulting from low probability,
- high-consequence accidents to b'e " clearly small" compared Lto the ~ risks I to which the environment and L the. population are 'o' herwise expose'.E t
d
-LEA.has not challenged this ifinding by the a Board on appeal.
LEA does not' allege-noncompliance'with any of.the Commission's-safety regulations which'the Comnission has found.to be adequate to protect the health and safety of;the public.14/
' LEA alle'ges' that' "the' practicability of backfitting such measures into the'.imerick design and the radiation' exposure of workers involved-
'in';the implementation of.such measures will all be adversely affected by-clow-power operation of the facility. which will contaminate plent. sys-tems."
However, LEA does notrdefine what backfitting measuret it is' contemplating no'r provide _ any basis for its assertion' that lor power
- operation of--the type permitted by the present 5% license "will contami-nate plant systems"U necessary to insta111 the undefined additional g
- systems. LEA had the opportunity to submit affidavits-in support of its motion',"as permitted by 10 C.F.R.- $2.788(b)(4), but did not do so.
i LEA argues that ' low power ' operation ~ may forever make unavailable
-c design : alternatives which could. substantially reduce the public risk.
13/.'. Limerick, supra. LBP-84-31, 20 NRC at 573.
j
' -14/- See for' example, Vermont Yankee Nuclear Power Corporation-(Vermr'nt j
Yankee Nuclear Power Station), ALAB-194, 7 AEC 431, 443-44 (1974).
, 15/ LEA.Brief at 3 (emphasis in original).
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Inasmuch,as'the Licensing Board has found.such risk to be already small, LEA has failed-to show'a basis for the assertion.17/ LEA has' failed to show how the grant of.a low-power license will cause even the potential
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for-a' severe accident.
Thus, an essential element in a requirement for is.? missing.18/
a-stay
- LEA has! failed to show that' it will be
' irreparably injured.'19/
As to the L third. factor, whether the granting of a stay would harm otherI narties, LEA alleges that the harm.to the Philadelphia Electric Company;,would w economic ; and thus should be excluded from cons'id-eration. The' cited case, Limerick, supra, ALAB-789, 20 NRC (slip
~
-op. at 5) (November 5, 1984), does not support this proposition. -There, the Appeal Board was discussing the fact'that economic concerns regard--
.ing rates-are not within the proper scope ~of issues to be litigated in
.NRCL proceedings.
It 'dces not follow that under the Commission's stay criteria such l matters are not properly included in the considerations.-
y /( It is important to note that. LEA's-other appealed matters relate to
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the aanner of disclosure of environmental impacts,mrather than to
.an assertion that the risk of plant operation was incorrectly stated.
18f Long Island Lighting Company (Jamesport Nuclear Power Station, l'aits 1 and 2), ALAB-481, L7 NRC 807, 808 (1978).
19). LEA's argument that the risk. of ' operation from Limerick exceeds that of any facility with the sole exception of Indian Point does not support its request.
Initially, Limerick meets all Commission
. safety requirements regarding operation.
The Board has found the risk'to be " clearly small." Limerick, supra, LBP-84-31, 20 NRC-at-513..
In : addition, 'as may be - seen by examination of the Final' 3
Environmental Impact Statement, the comparison of PRA results from 7
Limerick,with those of' other plants is not supportive of LEA's
. motion because the scope, methodology and assumptions of each PRA are so different and<because the~resulting associated uncertainties
-are so high.
L
'whensuch[,extraordinaryreliefissought by a party. While LEA claims it ' would be arbitrary - and capricious for the Commission to consider claims of economic harm to the utility caused by a licensing delay, it fails to provide any legal citation for this proposition.20/
To the contrary, this is a relevant factor inasmuch as the Applicant has shown itself entitled 'to the - license which it now possesses.
In ~ other -
Commission proceedings this economic. impact-to a - utility has been recognized as a factor in deciding whether a stay should be issued.b The actual economic harm which would result if the license were
. suspended, which is not denied by LEA to be real, must be compared to some speculative reduced outcome of some already low probability acci-dent'whose risk has been judged to be clearly small, which may occur in
.the future.
In fact, LEA admits that the issuance of an ultimate presumed.
I full-power and commercial license cannot be.
This-substantially. weakens LEA's already weak argument for the - requested relief.
With regard to the fourth factor, whether the requested stay would serve the public interest, LEA argues that the public interest is in avoiding undue risk and in permitting time to comprehensively consider risk mitigation. alternatives.E Applicant submits that the public 20/. LEA Motion, n.1 at 5.
21/. St. Lucie, supra, ALAB-404, 5 NRC at 1188; see also Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155 170-71 (1978).-
22/ LEA Brief at 5-6.
23/
Id. at 6.
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l interest is in allowing' continuation of the-operating license which was e
granted after.'a finding of. compliance with'~all NRC regul.ations because J
of the adverse. economic consequences should the license be stayed 1 or
' suspended. As with the third factor, LEA fails to show that effects on costs are not properly cognizable under this factor. Again, LEA' asserts as not speculative that : '.' contamination of plant ' systems : by low power testing,will make-design change backfitting more dangerous, more diffi-cult, and - more expensive, and may thus irrevocably 'shif t a close
- cost / benefit ratio-against risk reduction."
This assertion is without foundation in the ' record.
LEA. has - failed to make a showing under the fourth factor that the public. interest lies in the-grant of-the requested relief.
III. LEA Has Failed to Show That a License Suspension'is Warranted.
If considered as a request for a license suspension or suspension of. low-power testing, LEA's request lacks merit.
Initially, - LEA does not allege that there are _ any : activities which are being improperly conducted under the license nor does it allege changed circumstances since its issuance which warrant-any review of the license..To permit LEA to have this matter considered as.a request for a license suspension would be contrary to the Commission policy of not using such procedures as a vehicle for reconsideration of issues previously decided, or for
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avoiding an ~ existing forum in which they more logically should. be 24/ ?Id.~at 7.
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-. presented,25/ For these reasons, LEA's ' request. for license suspension
~ hould be rejected.
s Conclusion For the foregoing reasons, LEA's request for a stay and suspension of low-power -license and prohibition of low power testing should be
' denied.
Respectfully submitted,-
CONNER & WETTERHAHN, P.C.
Mark J. Wetterhahn
-Counsel for the Applicant
-December 24, 1984
-25/. Consolidated Edison Company of New York (Indian Point, Units 1, 2 and-3), CL1-10-8, 2 NRC 173, 177 (1975); Pacific Cas and' Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-81-6, 13 NRC 443, 446 (1981).
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-UNITED STATES OF AMERICA:
@C 2g NUCLEAR REGULATORY COMMISSION U :09
- crn, C0CA[ThCR(Tw In1the Matter of'
.)
-)
BRMC LPhiladelphia Electric' Company-
)
Docket Nos. 50-352
)
50-353 (Limerick Generating Station,:
)
Units'l andE2)
)
CERTIFICATE OF SERVICE I.hereby certify that copies of " Applicant's opposition to Limerick Ecology Action's Motion for Stay of LBP-84-31 Suspension of Low Power Facility Operating-License NPF-27, and/or Prohibition of Low-Power Testing" dated December 24, 1984 - in. the _ captioned matter have been served upon the following by deposit:in the United States mail this 24th day of-December, 1984::
Samuel J'.
Chilk, Secretary Lando W.
Zech, Jr.,
Office of the Secretary-Commissioner-U.S.' Nuclear Regulatory-U.S. Nuclear ~ Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Nunzio J'.
Palladino, Christine N. Kohl, Chairman Chairman-Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board
' Commission U.S. Nuclear-Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Thomas M.. Roberts,
-Commissioner Dr. Reginald L. Gotchy U.S. Nuclear Regulatory Atomic Safety and Licensing
-Commission Appeal Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission James.K. Asselstine, Washington, D.C.
20555 Commissioner:
U.S. Nuclear Regulatory Gary J. Edles Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U.S. Nuclear Regulatory Frederick M. Bernthal, Commission Commissioner' Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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Helen F._.Hoyt,-Esq.
Atomic Safety and Licensing Chairperson,
Appeal Panel Atomic ~ Safety and U.S. Nuclear Regulatory Licensing Board U.S.
. Commission Nuclear Regulatory Washington, D.C.
20555 Commission-i Washington,RD.C.
20555 Docketing and Service Section Office'of the Secretary
-Dr. Richard F. Cole U.S.ENuclear Regulatory.
Atomic Safety and Commission Licensing Board Washington, D.C.
20555 U.S. Nuclear Regulatory i-Commission Ann P. Hodgdon,.Esq.
Washington, D.C.
20555 Counsel for NRC Staff Office of the Executive Dr. Jerry Harbour Legal Director Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission Washington, D.C.
U.S. Nuclec.T Regulatory-20555 Commission.
I Washington, D.C.
20555
' Angus Love, Esq.
AtomicrSafety and Licensing.
107. East Main Street Board Panel Norristown, PA 19401 U.S. Nuclear Regulatory Commission Robert J. Sugarman, Esq.
Washington, D.C.-
20555' Sugarman, Denworth &
Hellegers Philadelphia Electric Company 16th Floor, Center Plaza
-ATTN:
Edward G. Bauer, Jr.
101 North Broad Street Vice President &
Philadelphia, PA 19107 General ~ Counsel 2301 Market Street Director, Pennsylvania Philadelphia, PA 19101 Emergency Management Agency Basement, Transportation.
Mr. Frank R.. Romano and Safety Building'
-61 Forest Avenue Harrisburg, PA 17120
' Ambler, Pennsylvania 19002 Martha W.
Bush, Esq.
1Mr. Robert L.' Anthony Kathryn S. Lewis, Esq.
Friends of the' Earth of City of Philadelphia the Delaware Valley Municipal Services Bldg.
'106 Vernon Lane, Box 186 15th and JFK Blvd.
Moylan, Pennsylvania 19065 Philadelphia, PA 19107
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Charles.W. Elliott, Esq.:
Spence W.
Perry, Esq.
325 N.'10th Street Associate General Counsel Easton, PA ~18042-Federal Emergency Management' Agency Phyllis Zitzer, Esq.
500 C Street, S.W., Rm. 840_
Limerick' Ecology Action Washington, DC -20472 P.O. Box 761 762 Queen Street.
Thomas Gerusky, Director Pottstown, PA 19464 Bureau of Radiation Protection Zori G. Ferkin, Esq.
Department of Environmental
-Assistant Counsel Resources Commonwealth of Pennsylvania' Sth Floor, Fulton Bank-Bldg.
Governor's Energy Council Third and Locust Streets-
'1625 N.
Front Street Harrisburg, PA 17120 Harrisburg,-PA' 17102 James Wiggins Jay M. Gutierrez, Esq. U.S.
Senior Resident Inspector Nuclear Regulatory-U.S. Nuclear Regulatory Commission Commission 631' Park Avenue P.
O. Box 47 King of Prussia, PA 19406 Sanatoga, PA 19464
' Timothy R.S. Campbell Mr. Ralph Hippert Director Pennsylvania Emergency Department of Emergency Management Agency Services B151 - Transportation 14 East Biddle Street Safety Building West Chester, PA 19380 Harrisburg, PA 17120 9
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MWrk J. Wetterhahn
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