ML20050C098

Answer Opposing Environ Law Project 820316 Motion to Postpone or Separate Proceeding or Other Relief.Motion Premature Since Project Not Admitted as Party.Certificate of Svc Encl

ML20050C098
Person / Time
Site:	Harris
Issue date:	03/31/1982
From:	Oneill J CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8204080134
Download: ML20050C098 (10)

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{ UNITED STATES OF AMERICA ,

'82 FR -1 N1 :02 6 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) .

)

CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL AND NORTH CAROLINA MUNICIPAL ) 50-401 OL POWER AGENCY NO. 3 )

)

(Shearon Harris Nuclear Power Plant, )

Units 1 and 2) )

APPLICANTS' ANSWER TO ENVIRONMENTAL LAW PROJECT'S MOTION TO POSTPONE OR '

SEPARATE PROCEEDING OR OTHER RELIEF On January 27, 1982, the Nuclear Regulatory Commission publi ed a Notice in the Federal Register of receipt of an appl /cationforfacilityoperatinglicensesfromCarolinaPower

& Light Company and North Carolina Municipal Power Agency No. 3 (fApplicants") for the Shearon Harris Nuclear Power Plant,

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, Units 1 and 2. The Commission's Notice indicated the savailability of Applicants' Environmental Report, that the I Commission would consider the issuance of facility operating licenses, and provided an opportunity for petitioners to I

request intervention in the proceeding and/or a hearing. 47 '

Fed. Reg. 3898 (January 27, 1982). Pursuant to the above l

Commission Notice, the Chief Administrative Law Judge, Atomic j l

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, Safety & Licensing Board Panel, established the Atomic Safety &

Licensing Board (" Board") in this proceeding to rule on petitions for leave to intervene and/or requests for hearing I and to preside over the proceeding in the event that a hearing is ordered. In the Notice establishing the Board, the scope of the proceed,ing was defined as Shearon Harris Nuclear Power Plant, Units 1 and 2, Construction Permit Nos. CPPR-1558 and CPPR-159. 47 Fed. Reg. 8705-06 (March 1, 1982). On February 17, 1982, the Environmental Law Project ("ELP") filed a petition for leave to intervene, as amended on March 1, 1982.

In a response dated March 3, 1982, Applicant's stated that ELP had sufficiently stated an interest in the proceeding to meet the initial requirements for intervention under Section 2.714 of the Commission's rules of practice. At this stage in the proceeding, Applicants await the submission of ELP's and other petitioners' contentions pursuant to Section 2.714(b) of the Commission's rules.

On March 16, 1982, ELP filed a " Motion to Postpone or Separate Proceeding or Other Relief". In its Motion ELP requests that the Board:

(1) recognize " consideration of an operating license at this time for Shearon Harris Unit No. 2 is premature, separate these two dockets pursuant to 10 C.F.R. 2.402, and postpone the proceedings for Unit No. 2 until such time as it appects likely that said power reactor will in fact be put into operation"; or in the alterna-tive (2) " postpone further proceedings in Docket 50-401, Shearon Harris Unit No. 2,

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l-until such time as comments on the PRM

[ proposed rulemaking submitted by Mr. Wells.

Eddleman (47 Fed. Reg. 4310)(January 29, 1982)] have been completed and analyzed and the NRC has taken action"; or in the alternative i (3) " grant such other relief, which may include conducting hearings on Unit No. 2 under the condition that such hearings may be reopened on motion by a party or intervenor after a certain period if the plant is not nearing completion, as may be appropriate to ensure a full and fair .

hearing on all issues of concern."

Since ELP has not yet been admitted as a party to the instant proceeding, its Motion is premature. The rules do not provide an opportunity for a petitioner for intervention to make a motion to the Board. This $ssue was raised by this 1

Board in its Order dated March 16, 1982. Nevertheless, because it would be helpful at this stage in the proceeding to have the scope of this proceeding clarified by the Board, we are responding to ELP's Motion at this time.1!

As part of its Motion, ELP requested that the Board take notice of a " list furnished by the NRC to the United States 1/ As noted by ELP, by letter dated December 18, 1981, from Carolina Power & Light Company to the NRC,' Applicants initially requested that only Unit 1 be considered for an operating j license. On further consideration, Applicants determined that i

it was more appropriate to follow long-standing NRC practice in considering the application of both Units 1 and 2 for an operating license at the same time.. The safety issues that might be raised are necessarily identical to-both Units and consideration of such issues in one proceeding avoids unneces-sary duplication of effort. Other issues, particularly potential environmental impacts, are more appropriately considered in the context of the total project.

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, Congress on or about March 13, 1982, which list contains the names of nineteen nuclear power plants under construct' ion that the NRC Staff predicted would be cancelled, which included Shearon Harris Unit No. 2." Applicants believe that the list referred to was contained in a memorandum for Commissioner Ahearne from William J. Dircks, Executive Director for Operations, dated March 8, 1982, which did include the Staff's estimates regarding nineteen additional cancellations or indefinite deferrals of nuclear power plants presently under construction, including Harris Unit 2. In a candid note with regard to the nineteen units, the Staff offered the following caveat: "Please recognize that this kind of information is based on conjecture, newspaper articles, conversations with -

financial houses, and hearsay rather than any official announcement from the applicant." Applicants believe that such unreliable information is not a basis for concluding that a particular plant will be cancelled. Applicants have no intention of cancelling Shearon Harris Unit 2.

Applicants oppose ELP's motion. This Board's jurisdiction is governed by the Commission's Notice of the application submitted by Applicants for both Harris Units 1 and 2. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976). A licens-ing board's actions can neither enlarge nor contract the jurisdiction conferred by'the Commission. Consumers Power i l

Company (Midland Plant, Units 1 and 2), ALAB-235, 8 AEC 645, '

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647 (1974). The relief requested by ELP to bifurcate the two l 1

dockets and to establish a separate proceeding for Unit 2's operating license is simply outside of the scope this Board's jurisdiction. ! See Carolina Power & Light Company (Shearon i

Harris Nuclear Power Plant, Units 1, 2, 3 and 4), ALAB-577, 11 i NRC-18 (1980).

ELP's alternative suggestion to postpone further pro-ceedings in Docket 50-401, Harris Unit 2, until such time as the NRC has taken action on the Eddleman proposed rulemaking is unsupportable.1! Nothing in the Commission's rules would permit or justify delaying the operatimg license proceeding for Harris Unit 2 pending the Commission's decision on a petition for proposed rulemaking. ELP has not provided cogent justifi-cation for a delay in the Unit 2 operating license proceeding.

2/ ELP cites 10 C.F.R. 2.402 as authority for the Board to take the action requested. Section 2.402 is applicable only to applications for standardized power plant designs at multiple sites submitted pursuant to 10 C.F.R. Part 50, Appendix N.

3/ Applicants note that the petitioner for prcposed rulemaking, Mr. Wells Eddleman, is also a petitioner for intervention in the Harris Proceeding. If it were possible to delay a operating license proceeding pending action by the Commission on any proposed rulemaking which might impact on the proceeding, as a matter of course petitions to intervene would be accompanied by contemporaneous petitions for proposed rulemaking. While Applicants are not suggesting that' Mr.

Eddleman and ELP are coordinating their efforts in this regard, it does point out the potential for abuse and why it would be inappropriate to hold up adjudicatory proceedings pending the outcome of proposed rulemaking proceedings.

ELP's proposal is in fact inconsistent with the nature of the Staff's review process and of the operating license proceeding. The Staff review at the operating license stage takes place regardless of whether or not there is a hearing.

1 There is a single Staff review for the two Units. The Advisory Committee 03 Reactor Safeguards undertakes a single review, regardless of whether it is a single-unit or multiple-unit plant. ItisentihelyappropriatethatreviewbyaLicensing Board take place on the same basis. As to the hearing itself, operating license hearings take place only upon the request of an interested person. These hearings are held only to resolve those issues appropriately raised (and appropriate sua sponte issues). The Licensing Board's role is not to undertake a de novo review of the application. Union of Concerned Scientists

v. AEC, 499 F.2d 1069 (D.C. Cir. 1974). The interval between in-service dates is irrelevant to the safety issues presented by the two unit application. It is important that contested safety issues applicable to both units be considered simultane-ously and as early as possible.

The only specific issue suggested by ELP as a issue which might well be impacted by changed conditions during the interval between completion of the two units was the issue of 1

"need for power" . However, this issue is not appropriately l raised in an operating license proceeding, in any event, as

( reflected in the recent Commission rule wh'ich excludes "need-for power" and " alternative energy source" issues in operating license proceedings. See 47. Fed. Reg. 19240 (March 26, 1982).

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,, ELP also argues for separate hearings for each Harris Unit '

because of the time lag between the initial operation of the two Units and the potential for new safety requirements and ,

design changes being developed and implemented during such period of time. While it is true that there will be a time difference between the in-service dates for the first and second Harris Unit, it does not follow that an additional license hearing should be mandated at this time. It has 'been the Commission's long-standing practice to afford a single opportunity for hearing with respect to multi-unit plants at the operating license stage. This practice dates back at least as far as the Federal Register Notice published in connection with the proposed issuance of operating licenses for Florida-Power & Light Company's Turkey Point Units 3 and 4, 36 Fed.

Reg. 20,906 (1971). If new issues were to arise during the interval between in-service dates of the two Harris Units, several mechanisms already exist for interested persons to seek their consideration. In cases where the hearing has not yet terminated or is before the Appeal Board for review (a situ-ation that could continue beyond the Unit 1 operating license issuance), the intervenor could file a motio.. to reopen. See e.g., Georgia Power Company s.tivin W. Vogtle Nuclear Plant Units 1 and 2), ALAB-291, 2 NRC 404 (1975); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),

ALAB-167, 6 AEC 1151 (1973). Even where the operating license proceeding is no longer pending, an interested person can file

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a request for an order to show cause. 10 C.F.R. 2.206. These two procedures provide, in effect, the relief requeste'd by ELP in its third alternative motion.

For all of the above reasons, Applicants respectfully request that the Board deny ELP's Motion.

Respectfully submitted, ti SHAW, PITT AN, TTS & TR . RIDGE

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By I f s Geokge F. TrowbridgdT F .C.

Tho'nas A. Baxter, P. :.

Jo H. O'Neill, Jr.

Counsel for Applicant 1800 M Street, N.W. .

Washington, D.C. 20036 Dated: March 31, 1982 l

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL AND NORTH CAROLINA MUNICIPAL ) 50-401 OL POWER AGENCY NO. 3 )

)

(Shearon Harris Nuclear Power Plant, )

• Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " Applicants' Answer To Environmental Law Project's Motion To Postpone Or Separate Proceeding Or Other Relief" were served this 31st' day of March, 1982, by deposit in the U.S. mail, first class, postage prepaid, upon the following:

James L. Kelley, Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Glenn O. Bright Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. James H. Carpenter Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Charles A. Barth, Esquire Stuart A. Treby, Esquire Marjorie Rothschild, Esquire Office of Executive Legal Dirt ator U.S. Nuclear Regulatory Commission Washington, D.C. 20555 1

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Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission

• Washington, D.C. 20555 Dr. Phyllis Lotchin 108 Bridle Run Chapel Hill, North Carolina 27514 Mr. Daniel F. Read 100-B Stinson Street Chspel Hill, North Carolina 27514 Mr. George Jackson, Secretary Environmental Law Project School of Law, 064-A University of North Carolina Chapel Hill, North Carolina 27514 Mr. Daniel F. Read, President Chapel Hill Anti-Nuclear Group Effort P.O. Box 524 Chapel Hill, North Carolina 27514 Mr. John Runkle ~

Conservation Council of North Carolina 307 Granville Road Chapel Hill, North Carolina 27514 M. Travis Payne, Esquire Edelstein and Payne P.O. Box 12643 Raleigh, North Carolina 27605 Dr. Richard D. Wilson 729 Hunter Street Apex, North Carolina 27502 Wells Eddleman 325 E. Trinity Avenue Durham, North Carolina 27701 Patricia T. Newman Slater E. Newman Citizens Against Nuclear Power 2309 Weymouth Court Raleigh, North Carolina 27612 1 l

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.h' J John H. O'Neill, ' Jp .

I Dated: March 31, 1982 e