ML20138R102
| ML20138R102 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 12/23/1985 |
| From: | Eddleman W EDDLEMAN, W. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#485-616 82-468-01-OL, 82-468-1-OL, OL, NUDOCS 8512300383 | |
| Download: ML20138R102 (4) | |
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. 8 UNITED STATES OF AMERICA 1985 P3 Decenbey:,ry NUCLEAR BEGULATORY COMMISSION BEFORE THE ATOMIC S FETY AND LICENSING BOARD 27 N0;34 Glenn O. Bri Dr. James H.ght co -
Carpenter 00 chb;h g M yi James L. Kelley, Chairman o.
s
)
h.
In the Matter of 3
Docket 50 400 OL CAROLINA POWER AND LIGHT CO. et al.
)
(Shearon Harris Nuclear Power Plant,
)
Unit 1)
)
ASLBP No. 82-h68-01
)
OL Wells Eddleman'S Resnonse on Contention 57-C-7 (Contaminated Injured Persons)
In response to the Licensing Board's order of December 9, and an extension of time fron December 20 (Friday) to today to respond, Wells Eddleman hereby responds to the Board's questions and re other pertinent matters (cf. Order at pn P 3).
Question 1.
The contention should be admitted, but not as draf ted since the GUARD v. NRC decision snecifies it better.
Question 2.
The contention should. read, "The plan, except for a list of hospitals', does not nrovide medical treatment of for contaminated injured persons as required by NRC and other annlicaRble rules, e.g.10 CFR 50.h7(b)(12), GUARD v. NRC (753 F.2d 111414 (1985).
Ogg The plan does not provide for traini.ng or protection from contamination
- Ngo.
" O for emergency personnel transporting these victims to medical treatment.
nn There may well be more early radiation injuries and contaminated 95 injured persons than the plan or existing medical treatment arrangements 04 l
for contaminated injured persons can handle.
All these nroblems need EE l
ma.o to be solved in order to assure effective protective action for contamina-ted injured people and protection from spreac injured persons requiring medical treatment.}ing contamination via l
03
l
~ Question 3 The Commission's statenent of nolicy does not require Boards to act as it says they "may" ("Interin Guidance, 50 FR 20893) or "could"(ibid at 20894, at least twice).
The GUARD v. NRC decision'means that Contention 57-C-7 is litigable. As will be addressed further below, the " statement of policy" on the GUA9D v. NRC decision is evidently an attempt to avoid that decision, and ahould have no force because (1) the fact of nonconnliance with the rules is litigable and
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must be resolved before licensing,10 CFR 50.57(a)(1), ete; (2) the NRC's former interpretation was invalid all the time it was in effect, and without that illegal interpretation of 10 CFR 50.47(b)(12), the contention would have been litigated in all its aspects, if adnitted (and since the part that was denied was barred by the Conmission's interpretation of the rule, it is fair to assume it would have been admitted absent that decision in San Onofre); (3) there was no notice and comment on the Commission's Statement of Policy, which attempts to do (or encourage ' Boards to do, though the Commission evidently dare not order Waem to, a significant fact) what the Court of Appeals in GUARD v. NRC barred the Commission fron doing, namely, to vitiate 10 CPR 50 4A7(b)(12).
Once an issue is accepted for hearing (57-C-7 was, except for the major part barred by the Cor71ssion's illegal s
action which the Appeals Court reversed in GUARD V. NRC), it cannot be avoided by action in which the affected parties are not allowed notice and somment, or the Administrative Procedure Act is violated.
To turn to the sub-questions, (a) Of course discovery is required.
This is a litigable contention, and any lateness is due to dilatory action by the Nuclear Regulatory Commission and others, not to any delays by me.
I filed for admission of the contention under the GUARD V. NRC decision promptly, on 1 March 1985 I believe I also renewed my motion at a later date.
To limit discovery now is fundanentally unfair, es ecially since the' Harris niant h.....
is nsw boing dalcyed yot cgai n (CP&L Board of Directors action on 12/18/85.
CP&L Counsel Hollar informs me that a letter will go out to the Board and parties concerning this delay.).
(b)Eae Atomic Energy Act, Section 189(a), requires a hearing on any issue that is a material factor bearing on a licensing decision and raised by the requester of the hearing.
42 USCA 2239(a),
Union of Concerned Scientists v. NRC, 735 F.2d 1h37 (198h).
Adequacy of arrangements to treat contaninated injured persons is not determinable solely by a (single) test or inspection, and does not qualify for exemption from hearing under Section 189(a) of the Atomic Energy Act, 42 USCA 2239(a).
UCS v. NRC at 1h37, lhh2-3,1kh5-8.
If a claim raises genuine issues of material fact, sunnary disnosition may not be done, and a hearing is required.
Cf. UCS at ikh8, citing Westinghouse, North Anna, and Siegel (citations omitted).
Resolving this contention is not an 'on the spot decision by a qualified inspector" (UCS at ikh9, fn 23 and language citing the A torney t
General's report on the APA revision 5 USC 554(a)(3).
This exemption "does not encompass all decisions which are based on evidence derived from tests or inspections" (even if any tests or inspections of ability of medical facilities to treat contaminated injured persons from a Harris accident had been done, which they evidently have not),
UCS at 1449.
Moreover, facts are needed to resolve this contention, and if it were to survive summary disnosition it would be clear that more than affidavits are required to resolve its material issues of fact.
Without discovery, those naterial issues of fact may not even be a
uncovered.
Obviously, resolution by affidavit would violate the right to a hearing (unless summary disnosition motion (s) succeeded) and lack of discovery would be extreme urejudice to the earty (e.g. me) trying to fend off summary disposition by affidavit.
-4 i
As to the Commission's position that a commitment to full eempliance with whatever the Commission decides, would be OK for supporting a license, this is not the ease.
Yne Commission cannot, without notice anicomment, establish a binding precedent.
It cannot i
assept a promise as dispositive of a material issue in deciding whether er not to license a power plant (UCS v. NRC, supra, lh37:
When statute calls for hearing in adjudication, hearing is presumptively governed by "'on the record" procedures of 5 USCA $$4,556,557.
Eroeptions don't apply.
Ibid.)
This is true even for " predictive"
.s M
emergency plan findings.
UCS at 1$1, n.5, mmd See at ihS.
forces Hearing at NRC is required by 42 USCA 2239 then The Commission, if a hearing is granted, mus(a). 5 USC 553(b)ide aghearing.
a generally prov opportunity for submission and challenge of evidence as to any and all e
issues of material fact.
UCS at IM4; cases cited there, at ihM,1M5.
The hearing procedure is mandatory where there are issues of material d
fact (Cf. NRC rules, 10 CPR 2.749).
The Public's right to participate in the hearings does not unduly limit the NRC's "' wide discretion to g
structure its lisensing hearings in the interest of speed and effieiency" UCS at 1 4 8, ef. 1 M 7.
If a party's claim survives summary d isposition, e
y expedited procedures may be used (ibid,1$8) but a hearing may not be denied on the basis of time pressure.
UCS at 1 497-8.
n E
A Another UCS v. NRC ease shows that the Commission cannot c
change its rules without notice and comment.
UCS v. NRC 711 F.2d 370, j
383.382, citing NRC's own rules, 10 CPR 2.804 and 2.80$(a): "When the e
o Commission proposes to adoot, amend, or receal a regulation it will cause to be published am * * * (t)he manner and time within which interested members of the nublie may comment"' (Court's emphasis);
'"fhe Commission will afford interested persons an opportunity to participate in rulemaking * *
- in the manner stated in the notice"'
which contains the proposed rulemaking.57-(ibid, Court's emnhasis ).
For the above reasons, Contention C-7 as revised abould be admitted at once and discovery begun immediate y, alloping hearingddleman if summary disposition fails or is not filed p ggg Wells
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