ML20197C264

Comments on Immediate Effectiveness Issue.Issue Which Intervenors Placed in Controversy in Proceeding Carefully Examined by Aslb.Requests Opportunity to Be Heard If Commission Entertains Issuance of Stay.W/Certificate of Svc

ML20197C264
Person / Time
Site:	Harris
Issue date:	05/08/1986
From:	Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
References
CON-#286-126 OL, NUDOCS 8605130281
Download: ML20197C264 (9)

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BEFORE THE COMMISSION 3#en '

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In the Matter of )

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CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

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(Shearon Harris Nuclear Power ) .

Plant) ) I APPLICANTS' COMMENTS ON IMMEDIATE EFFECTIVENESS The Commission's Rules of Practice, at 10 C.F.R. 5 2.764(f)(2)(ii), provide that "[f}or operating license deci-sions other than those authorizing only fuel loading and low power testing . . . , the parties may file brief comments with the Commission pointing out matters which, in their view, per-tain to the immediate effectiveness issue."1/ Applicants Carolina Power & Light Company ("CP&L") and North Carolina Eastern Municipal Power Agency offer the following comments.

The Atomic Safety and Licensing Board's " Final Licensing Board Decision" resolves the remaining matters put into contro-versy by the parties to this operating license proceeding on the Shearon Harris Nuclear Power Plant ("SHNPP"). The l

1/ "To be considered, such comments must be received within 10 days of the Board decision." 10 C.F.R. 5 2.764(f)(2)(ii).

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Licensing Board has resolved all contested matters in favor of the Applicants, and has not determined that a serious safety, environmental, or common defense and security matter exists.

See 10 C.F.R. S 2.760a. The Licensing Board concluded as to the contentions addressed herein, that there is reasonable assurance that, if an operating license is subsequently granted for the Harris facility, the activ-ities authorized hereby can be conducted without endangering the health or safety of the public and that such activities will be conducted in compliance with applicable NRC regulations.

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-86-ll, 23 N.R.C. , slip op. at 186 (April 28, 1986). Consequently, the Licensing Board authorized the Direc-tor of Nuclear Reactor Regulation, upon making the other requi-site findings, to issue to Applicants a license to operate the SHNPP at full power. ! Id. at 186-87.

2/ On April 22, 1986 -- after the record in this case closed and only six days before the Final Licensing Board Decision issued -- two intervenors filed a late new contention based upon one former CP&L employee's allegation of inadequate worker radi'ological exposure record-keeping by CP&L. The Licensing Board has not yet ruled upon this proposed contention, but Applicants are confident that the Board will find the allega-tion to be without basis or safety significance, and to be inexcusably untimely.

In addition, the Licensing Board retained jurisdiction to entertain any future proposed contentions on employee ha-rassment which might be filed following distribution of a yet unavailable Office of Investigations report. The report will document an investigation, requested by the Licensing Board on March 13, 1985, into letters received from two former employees. LBP-86-ll, supra, slip op. at 185 n. 50. At the time the Board referred the letters to OI, a narrow contention alleging the harassment of one employee had been admitted for (Continued next page)

y In conducting its immediate effectiveness review, the Com-mission should be aware of significant aspects of the proceed-ing's history. The notice of opportunity for hearing on the application was issued on January 15, 1982, and this Licensing Board was empaneled on February 23, 1982. Intervenor partien who have participated under 10 C.F.R. 5 2.714 are: (1) Conser-vation Council of North Carolina; (2) Chapel Hill Anti-Nuclear Group Effort; (3) Kudzu Alliance; (4) Mr. Wells Eddleman; and, (5) Dr. Richard Wilson. The Attorney General of North Carolina entered the proceeding in mid-1985, and has participated, under the provisions of 10 C.F.R. S 2.715(c), in the adjudication of two intervenor contentions. !

In response to the original notice, the intervenors filed in 1982, according to the Licensing Board's count, 334 proposed contentions. See LBP-82-119A, 16 N.R.C. 2069, 2074 (1982).

Well over 200 additional, untimely proposed contentions have been filed since that time. We are aware of no other NRC pro-ceeding in which the intervenors have been so undiscriminating i

(Continued) adjudication. The admission of that contention subsequently was reconsidered, and the contention was dismissed. Memorandum and Order (Dismissing Contention Concerning Alleged Harassment t of Former Employee . . .), June 12, 1985. Consequently, employee harassment has not become a contested issue in this lengthy proceeding.

3/ Those are CCNC WB-3 (Drug Abuse During Construction) and Eddleman 57-C-3 (Nighttime Emergency Notification), both of which were resolved in the Final Licensing Board Decision.

n and have attempted literally to overwhelm the NRC's hearing process.4 / Nevertheless, over the past four years the Licens-ing Board has resourcefully and diligently resolved the issues raised, and has done so in a manner which has been fair to the intervenors,b! and yet consistent with the commission's goal that operating license hearings be completed by the time a nuclear plant is ready to operate.6/ See Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 N.R.C. 452 (1981).

The Licensing Board decided roughly 50 admitted conten-tions in Applicants' favor, following discovery, on motions for summary disposition. Some 20 contentions were decided follow-ing evidentiary hearings -- the first of which was held on June 14, 1984; and the last of which was held on March 5, 1986. The Final Licensing Board Decision was preceded by three partial initial decisions: LBP-85-5, 21 N.R.C. 410 (1985); LBP-85-28, 22 N.R.C. 232 (1985); and LBP-85-49, 22 N.R.C. 899 (1985).2!

4/ Roughly 1,300 documents (pleadings by the parties and is-suances of the Board) have been filed in this case to date.

The transcript of proceedings before the Licensing Board is nearly 11,000 pages in length (exclusive of 1,700 pages of in-serted direct testimony), reflecting 22 prehearing and other conferences, and 39 days of evidentiary hearings. Over 200 l

exhibits have been marked for identification and/or received in evidence, and over 100 witnesses have testified under oath before the Licensing Board.

5/ It is a tribute to the Licensing Board's fair management of this proceeding that no party has sought interlocutory ap-pellate review of a single Board ruling.

6/ CP&L estimates that it will be ready to load fuel at the SHNPP in late July, 1986.

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! 7/ Each of the three partial initial decisions presently is l under review by the Atomic Safety and Licensing Appeal Board.

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l In sum, the issues which the intervenors placed in contro-l versy in this proceeding have been carefully examined by the Licensing Board. The process has been fair, and the Board's decisions are of high quality. In conducting an immediate effectiveness review, the Commission applies the criteria in 10 C.F.R. S 2.764(f)(2)(i) to parties' comments to determine whether to stay the effectiveness of a licensing board's deci-sion. Philadelphia Electric Co. (Limerick Generating Station,

! The appli-Units 1 and 2), CLI-85-13, 22 N.R.C. 1, 2 (1985).

cation of none of those criteria warrants withholding immediate effectiveness of the Final Licensing Board Decision.9/ If the 8/ The criteria in section 2.764(f)(2)(i) are:

a. the gravity of the substantive issue;

b. the likelihcod that it was decided incorrectly below;

c. the degree to which correct resolution of the issue would be prejudiced by operation pending review; and

d. other relevant public interest factors.

9/ On April 30, 1986, the Secretary served a copy of an April 29, 1986 telegram to the Commissioners from William L. Cummings "for the Regional Steering Committee Coalition for Alternative to Shearon Harris." While the Coalition has not been a party to this proceeding, several of its members are intervenors here. The telegram, which asked the Commission to reconsider the Licensing Board decision, does not address any of the Board's decisions. The only reasonably identified issue as-serted is that " local government [is] taking steps to withdraw from completely inadequate evacuation plans." This statement is not true. The State of North Carolina, and local govern-ments in the plume exposure pathway Emergency Planning Zone for the SHNPP, have submitted emergency response plans to FEMA, which approved them in interim findings issued in August, 1985.

These government agencies participated fully in the successful pre-licensing exercise last year for the SHNPP, and the counties plan to participate partially in the annual exercise next month. In addition, local officials cooperated with CP&L in presenting to the Licensing Board evidence in response to (Continued next page)

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Commission entertains the issuance of a stay, Applicants hereby request an opportunity to be heard, as provided in 10 C.F.R.

S 2.764(f)(2)(ii).

Respectfully submitted, L A. Ar Thomas A. Baxter, P.C.

SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1090 Richard E. Jones Dale E. Hollar CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-8161 Counsel for Applicants Dated: May 8, 1986 (Continued) intervenor contentions. The Licensing Board has resolved all off-site emergency preparedness issues against the intervenors.

In sum, the plans have passed close scrutiny, and cooperation among CP&L, State, local and Federal agencies in off-site emer-gency planning for the SHNPP could hardly be better.

.b May 8, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Comments On Immediate Effectiveness" were served this 8th day of May, 1986, by deposit in the U.S. mail, first class, postage prepaid, and by hand delivery to the party identified with one asterisk on the attached Service List.

.. = .

Thomas A. Baxter, P.C.

i ^

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

- cnd NORTH CAROLINA EASTERN ) Docket No. 50-400 OL

, MUNICIPAL POWER AGENCY )

)

-(Shearon Harris Nuclear Power )

Plant) )

SERVICE LIST Nunzio J. Palladino Dr. Reginald L. Gotchy

, Chairman Atomic Safety and Licensing i

U.S. Nuclear Regulatory Commission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Thomas M. Roberts U.S. Nuclear Regulatory Commission Mr. Howard A. Wilber Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Commissioner James K. Asselstine U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 James L. Kelley, Esquire Commissioner Frederick M. Bernthal Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Commissioner Lando W. Zech, Jr. Mr. Glenn O. Bright U.S. Nuclear Regulatory. Commission Atomic Safety and Licensing Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission l-Washington, D.C. 20555 Thomas S. Moore, Esquire Chairman Dr. James H. Carpenter Atomic Safety and Licensing Atomic Safety and Licensing Board

! ' Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 i

F 6 Charles A. Barth, Esquire Dr. Richard D. Wilson Janice E. Moore, Esquire 729 Hunter Street Office of Executive Legal Director Apex, North Carolina 27502 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Wells Eddleman 812 Yancey Street Docketing and Service Section

• Durham, North Carolina 27701 Office of the Secretary U.S. Nuclear Regulatory Commission Richard E. Jones, Esquire Washington, D.C. 20555 Vice President and Senior Counsel Carolina Power & Light Company Mr. Daniel F. Read, President P.O. Box 1551 CHANGE Raleigh, North Carolina 27602 P.O. Box 2151 Raleigh, North Carolina 27602 Dr. Linda W. Little Governor's Waste Management Board Bradley W. Jones, Esquire 513 Albemarle Building U.S. Nuclear Regulatory Commission 325 North Salisbury Street Region II Raleigh, North Carolina 27611 101 Marrietta Street Atlanta, Georgia 30303 H. A. Cole, Jr., Esquire Special Deputy Attorney General Mr. Robert P. Gruber 200 New Bern Avenue Executive Director Raleigh, North Carolina 27601 Public Staff - NCUC P.O. Box 991 Joseph Flynn, Esquire Raleigh, North Carolina 27602 Federal Emergency Management Agency 500 C Street, S.W., Suite 480 John D. Runkle, Esquire Washington, D.C. 20740 Conservation Council of North Carolina Steven Rochlis, Esquire 307 Granville Road Regional Counsel Chapel Hill, North Carolina 27514 Federal Emergency Management Agency 1371 Peachtree Street, N.E.

M. Travis Payne, Esquire Atlanta, Georgia 30309 Edelstein and Payne P.O. Box 12607 Raleigh, North Carolina 27605