ML20197J962

Response Opposing Reopening of Record to Accept late-filed Contention WB-4 Proferred by W Eddleman & Conservation Council of North Carolina Re Systematic Falsification of Radiation Exposure Records.Certificate of Svc Encl

ML20197J962
Person / Time
Site:	Harris
Issue date:	05/13/1986
From:	Barth C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:
References
CON-#286-190 OL, NUDOCS 8605200220
Download: ML20197J962 (14)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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BEFORE TIIE ATOPIIC SAFETY AND LICENSING DOARD ] @*.y ..;

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In the f.latter of )

) 'N s2 CAROLINA POWER AND LIGIIT )

COMPANY AND NORTH CAROLINA ) Docket No. 50-400 OL EASTERN f.fUNICIPAL POWER )

AGENCY )

)

(Shearon Harris Nuclear Power Plant, )

Unit 1) )

NRC STAFF RESPONSE IF OPPOSITION TO REOPENING TFE RECORD AND ACCEPTING A CONTENTION PROFFERED BY WELLS EDDLEMAN AND CCNC BASED UPON AF APRIL 3,1986 AFFIDAVIT OF PATTY S. MIRIELLO I. INTRODUCTION IIcarings on all admitted contentions in this Operating License proceeding were concluded on March 5,1986. On April 2ll, 1986, over a month after termination of the hearings, CCNC and Wells Eddleman proffered a new contention that radiation exposure records at Applicant's Brunswick and Robinson nuclear stations have been systematically falsified. The Staff's opposition to admission of this late contention folfows.

II. DISCUSSION A. NRC Standards Applicable To The Proffered Contention In order for Intervenors' proffered contention relating to the Patty S. Miriello Affidavit to be admitted as a matter in controversy in this proceeding, it must satisfy three standards. First, the contention must sctisfy the Commission's requirement that the basis for the contention be 8605200220 860513 PDR ADOCK 05000400 0 PDR

set forth with reasonable specificity. 10 CFR I 2.714(b). Second, since it is a late filed contention, under the Commission's decision in Duke Power Company et al. (Catawba Nuclear Station , Units 1 and 2),

C LI-P,3-19 , 17 NRC 1041 (1983), balancing of the five factors of 10 CFR I 2.714(a) mu st favor admission of the contention. Third , since the henring record has now been completed, the proffered contention must satisfy the Commission's criteria for reopening the record, most recently discussed in Cleveland Electric Illuminating Company et al. (Perry Nuclear Power Plant, Units 1 and 2), CLI-86-7, 23 NRC (April 18,1986) Slip Op.

In order for the proposed contention to be found admissible, it must fall within the scope of the issues set forth in the Notice of Hearing initiating the Proceeding, O and comply with the requirements of 10 CFR I 2.714(b) and applicable Commission case law . Northern States Power Co. (Prairio Island Nuclear Generating Plant, Units Nos. I and 2),

A L A B-107, G AEC 188, 194 (1973), aff'd BPI v.

Atomic Energy Commission, 502 F.2d 424, 429 (D.C. Cir. 1974);

Duquesne Light Co. (Peaver Valley Power Station , Unit No. 1),

1 ALAB-109, 6 AEC 242, 245 (1973). Under 10 CFR I 2.714(b) a petitioner for intervention in a Commission licensing proceeding must file a supplement to its petition:

. . . [w]hich must include a list of the contentions which petitioner seeks to have litigated in the matter, Public Service Co. of Indiana, Inc. (f.larble I!ill Nuclear Generating

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Station, Units 1 and 2), A LA B-316, 3 NRC 167, 170 (1976). See also, Commonwealth Edison Company (Carroll County Site),

A L A B-601, 12 NRC 18, 24 (1980); Portland General Electric Co.

(Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-290, n. 6 (1979).

and basis for each contention set forth with reasonable specificity.

The purpose of the basis requirements of 10 CFR I 2.714 are (1) to assure that the contention in question raises a matter appropriate for litigation in a particular proceeding, b (2) to establish a sufficient foundation for the contention to warrant further inquiry into the subject matter addressed by the assertion and, (3) to put the other parties suffi-ciently on notice "... so that they will know at least generally what they will heve to defend against or oppose." Peach Bottom, supra at 20.

From the standpoint of basis, it is unnecessary for the petition to detail the evidence which will be offered in support of each contention.

f.11ssissippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and

'? ) , A L A P-130, 6 AEC 423, 426 (1973). Furthermore, in examining the contentions and the bases therefor, a licensing board should not reach the merits of the contentions. Houston Lighting and Power Company

( Allens creek Nuclear Generating Station,~ Unit 1), ALAB-590, 11 NRC 2/ A contention must be rejected where:

(a) it constitutes an attack on applicable statutory requirements; (b) it challenges the basic structure of the Commission's regulatory process or is an attack on the regulations; (c) it is nothing more than a generalization regarding the intervenor's views of what applicable policies ougrht to be; (d) it seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or (c) it seeks to raise an issue which is not concrete or litigable.

Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units if and 3). ALAB-216, 8 AEC 13, 20-21 (1974).

542, 548 (1980); Duke Power Co. (Amendment to Materials License SNM-1773 - Transportation of Spent Fuel From Oconee Nuclear Station for Storage at .McGuire Nuclear Station). A L AB-528, 9 NRC 146,151 (1979);

Peach Bottom, supra, at 20; Grand Gulf, supra at 426.

As the Appeal Board instructed in Alabama Power Company (Joseph I M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 216-217 (1974), in assessing the acceptability of a contention as a basis for granting intervention:

[T]he intervention board's task is to determine, from a scrutiny of what appears within the four corners of the contention as stated, whether (1) the requisite specificity exists; (2) there has been an adequate delineation of the basis for the contention; and (3) the issue sought to be raised is cognizable in an individual licensing proceeding. (Footnotes omitted)

Thir cpplies equally to a contention proffered by an intervenor as well as by a petitioner to intervene. If a contention meets these criteria, the contention provides a foundation for admission " irrespective of whether resort to extrinsic evidence might establish the contention to be insubstantial." 3,/ The question of the contention's substance is for later resolution - either by way of R 2.749 summary disposition prior to the evidentiary hearing or in the initial decision following the conclusion of such a hearing. Farley , supra, 7 AEC at 217. Thus, it is incumbent upon l'!r. Eddleman and CCNC to set forth their proffered Contention

-3/ Farley, supra, at 217. In addition, the proposed contention should refer to and address relevant documentation, available in the public domain , which is relevant to the Harris plant and the proffered contention. See, Cleveland Electric Illuminating Company, et al.

(Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 N P.C 175, 181-184 (1981).

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h'B-4 and the bases therefore with sufficient detail and specificity to demonstrate that the issue they purport to raise is admissible.

On June 30, 1983 the Commission, reviewing ALAB-687,16 NRC 460 (1982), issued its decision in Duke Power Company et al. (Catawba Nuclear. Station, Units 1 and 2), CLI-83-10,17 NRC 1041 (1983). This decision considered the standards to be applied to contentions premised upon information contained in licensing-related documents not required to be prepared early enough so as to enable an intervenor to frame contentions in a timely manner in accord v'ith the provisions of 10 C.F.R.

I 2.714(b). In Catawba the Commission determined that it is reasonable to cpply the late-filing criteria in 10 CFR I 2.714(a)(1) and 'the Appeal Board's three-part test for good cause O ot contentions that are filed late liccause they depend solely on information contained in institutionally unavailable licensing-related documents. 5_/ Id. at 1045. Further, the Commicsfon determined that the institutional unavailability of a licensing-related document does not establish good cause for filing a contention late if information was otherwise available cerly enough to provide the basis for timely filing of that contention. 6_/ ., at 1048.

17 NRC 1045. See also ALAB-687,16 HIIC 460, 469 (1982).

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The Commission believes that the five factors together are permitted by Section 180c cf the Act and are reasonable procedural require-ments for determining whether to admit contentions that are filed late because they rely solely on information contained in licensing-related documents that ~ were not required to be prepared or submitted early enough to provide a' basis for the timely formulation of contentions.

Id. at 1045,1050.

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The Commission set out in its decision the fundamental principles upon which it bases its conclusion that Intervenors are required diligently to uncover and apply all publicly available information to the prompt formulation of contentions. M. at 1048-1050.

Although the Patty S. Miriello Affidavit is not a licensing-related document, the rationale of the Commission's decision and analysis applies here.  !

The factors which must be balanced in judging the admissibility of a late-filed contention are:

(i) Good cause, if any for failure to file on time.

(ii) The availability of other means whereby the petitioner's interest will be protected.

(iii) The extent to which the petitioner's participation may reasonnbly be expected to assist in developing a sound record.

(iv) The extent to which the petitioner's interest will be represented by existing parties.

(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.

10 C. F. R. I 2.714(a)(1) .

With respect to the good cause factor the Comrrission adopted the Appeal Dor.rd's test to determine whether good cause exists for late filing of a Contention. Catawba, supra , 17 NRC at 1045. Under that test good l

l cause exists if a contention: 1) is wholly dependent upon the content of a particular dccument ; 2) could not therefore he advanced with any degree of specificity (if at all) in advance of the public availability of that document; and 3) is tendered with the requisite degree of promptness once the docuraent comes into existence and is accessible for public exariination. d. at 1n43-1044. The Appeal Board has recently discussed the showing necessary to cause the third factor to weigh in favor of the admission of a late petitioner for leave to intervene.

Washington Public Power Supply System, et al. (WPPSS Nuclear Project No. 3), ALAB-747, 18 Ni1C, 1167 (1983). In WPPSS the Appeal Board

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reasserted a standard it had set forth in Mississippi Power & Light Co.

(Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982).. As the Appeal Board stated:

Almost a year ago, we observed that, because of the importance of the third factor, "[w] hen a petitioner addresses this criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses ,

and summarize their proposed testimony.

WPPSS, supra, 18 NPC at 1177. This standard is instructive in deternining whether an intervenor has satisfied the third factor with  !

respect to a late-filed contention.

The Commission has recently reemphasized the importance of closely following the criteria when considering late-filed contentions.

Commonwealth Edison Company (Braidwood Station, Units 1 and 2),

CLI-86-08, 23 NRC , ( April 24,1986) Slip. Op.

The Commission again restated and reemphasized the importance of following appropriate criteria when considering reopening the record.

Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), CLI-86-07, 23 NRC ( April 10, 1986) Slip Op. at 2 states:

"The standards for reopening a closed record require consideration of three factors: (1) whether the motion to reopen is timely; (2) whether the information raiser a significant safety (or environmental) concern; and (3) the motion must demonstrate that a materfally different result would be or would have been likely had the newly proffered evidence been considered intitially. See, e.g. , Metropolitan Edison Co. (Three Mile Island Nuclear Station , Unit 1), CLI-85-2, 21 NRC 282, 311 (1985)."

It is against these standards that proffered Contention Y'B-4 must be analyzed.

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D. The Contention WD-4, The Standards, And The Miriello Affidavit Standards for Admissible Contentions The text of the proffered contention appears on page 1 of the CCNC/Eddleman filing. O The gravamen of the contention is in its first sentence - the radiation protection programs at Brunswick and Robinson are ineffective which for unspecified reasons calls. into question the ability to properly operate the Harris facility. Even assuming for purposes of this argument that the information provided to Ms. Miriello by CP&L concerning her exposure at Brunswick was incorrect, Intervenors do not make any connection between such information and the future operation of Harris or the radiation protection program at Harris. 8,/

Intervenors' statement " Radiation exposure records have been systemati-cally falsified. . ." is without any factual basis.

Intervenors simply make no reasonable connection between an error in informution provided to Ms. Miriello relating to Brunswick and future operation of I!arris. b In addition the contention alleges that the Robinson radiation protection program is deficient . However, Ms. Miriello's affidavit does 7/ " Request By CCMC And Wells Eddleman For Admission of New Contention WB-4 (Falsification of Exposure Record)," April 22, 1986.

8/ See Peach Bottom cited supra in footnote 2.

9/ Indeed the error in the August 20, 1985 letter was caught and corrected by CP&L which sent a corrected letter dated September 9, 1985 to Ms. Miriello. (Copy Attached)

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,- , not allege .a defect or mistake at Robinson. Accordingly, the radiation health physics program at Robinson does not enter into consideration of WB-4.

Standards for I. ate-Filed Contention ,

Recognizing that this is a late-filed contention , the intervenors purport to address the five factors of 10 C.F.R. I 2.714(a).

(i) Good Cause For Failure To File On Time Intervenors state as good cause "...we have not had the specific basis with which to formulate a contention. The affidavit by Ms. Miriello and the facts contained within it. . . .did not reach us until early last

[ April 13-10] week." This is not correct.

On January 1, 1986, Ms. Miriello wrote a letter to Chairman Kelley setting forth a number of allegations. Iter letter requested confiden-tiality . The Chairman , pursuant to 10 C. F. R. I 2.780(b), served that letter upon the undersigned staff counsel, Mr. Runkle, counsel for CCNC for whom Ms. Miriello has previously appeared as a witness , and Mr. Baxter, counsel for Applicants. Ms. Miriello's Affidavit of April 3, 1986 provides specific details of her January 1, 1986 allegations of overt negligence in health physics practices at the Brunswick nuclear plant.

On January 21, 1986, Mr. Runkle made a filing protesting the Chairman's service of the January 1,1986 Miriello Ictter, b Item number 3 on page

-10/ " Exception And Objections To Order Dated January 10,1986" dated and served January 21, 1986. On January 20, 1986, the preceding day, Mr. Runkle wrote to each NRC Commissioner and enclosed his January 21,1986 finng.

3 makes it quite clear that fir. Runkle was aware that Ms. Miriello alleged

" questionable practices relating to health physics." Thus, it appears that CCNC . knew or should have known in January 1986 that Ms. Miriello was alleging inadequate health physics practices at Brunswick and yet did nothing until approximately 3 months later, after the hearing record had i

been completed. There is no good cause for Intervenors failing to file such a contention based on Ms. Miriello's assertions much earlier.

(ii) Intervenors' Interest CCNC's anr1 f.!r. Eddleman's have shown no interest in the Harris proceeding which is adversely affected by the information in the Piiriello l affidevit or in the proffered contention.

(iii) Developing A Sound Record There is no basis for concluding that further participation by PJs. Piiriello or Intervenors in this proceeding will assist in developing a sound record on the contention proffered.

(iv) Intervercrs' Interest Protected By Other Parties Other parties are not expected to protect interest of Intervenors in this proceeding. The NRC Staff, of course, has an ongoing regulatory I

and inspection program to assure compliance with Commission regulations.

r (v) Delaying The Proceeding Reopening the record now to admit Contention WB-4 would delay the proceeding.

Balancing the criteria for late-filed contentions does not favor admission of WD-4.

Standard for Reopening With respect to the criteria for reopening the record, the Intervenors again failed to satisfy applicable Commission standards.

As sct out above in the discussion of good cause, Contention WB-4 is untimely without good cause for such untimeliness. Contention WB-4 raises no significant safety or environmental concerns at Harris or in the Harris application for an operating license; and indeed, does not make any reasonable connection between the events enmplained of and the Harris proceeding. Lastly, Intervenors have offered no basis for concluding that if Contention WB-4 were admitted the Licensing Board would recommend that an ope *ating license not be issued. They have totally failed to satisfy the Commission's requirements for reopening the record as set forth in Perry, CLI-86-7 cited supra.

CONCLUSION For all of the above reasons, the Staff recommends that proferred Contention WB-4 not be admitted in this proceading.

Respectfully submitted,

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t. Charles A. Barth Counsel for NRC S aff Dated at Bethesda, Maryland this 13th day of May,1986

r CarolinaPoweriLightCompany S!!!C Route 1, 8er 127 BesBill,porthCarolina27562 85/09/10 PAff!5IIRIELLO SocialSecurityla P.O.BOI28071 208-46-0985 RALEIG8 BC27611 SUBJt:f:RadiaticatiposurefereinationReport

DearIS.IIRIELLO:

ThisistoinforeyouoftheresultsofradiationsPosuresonitoringduring youresployHnt/VisitatCarolinaPover&LightCompanyfros 85/02/25to85/08/10.

EIftRIALIIP05092 DATA Period CP&L Dese(ree) free to Location Ibole body Skin Bands fut toploysent/ visit 85/02/25 85/08/30 Brunsvict Plant 6.029 0.033 EarrisE&ECenter RobinsonPlant BarrisPlant 0.000 0.000 CP&Lfotals 0.029 0.033 LatestQuarter 85/06/29 85/08/30 aronsvick Plant 0.029 0.033 Barris!&fCenter RobinsonPlant HarrisPlant 0.000 0.000 CP&Lfatals 0.029 0.033 Latestfear 85/01/01 85/08/30 Brunswict Plant 0.029 0.033 Barristi! Center RobinsonPlant HarrisPlant 0.000 0.000 CP&Lfotals 0.029 0.033 IIftRIALIIPOSUltDATA following is the sost recent body count data, taken on 85/08/0508:45:

Buclide Organ Ianocuries t of IP!3 Icelide Organ Ianocuries i of IFBB fotaliIFBB .0 ThisreportisfurnishedtoyouundertheprovisionofthefuelearRegulatoryCoseission regulation 10CTR 19. You shonld preserve this report for further reference. Future esployerssayrequirethisinforeation.

Verytrulyyours, Copies to ( ) Individual ,)f t

()IRC v{j VL &^hj'

()8E&EC 5.I.Croslin I fechnicalSpecialist HealthPhysics

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

. )

CAROLINA POWER AND LIGHT )

COMPANY AND NORTH CAROLINA ) Docket No. 50-400 OL EASTERN MUNICIPAL POWER )

AGENCY )

)

(Shearon Harris Nuclear Power Plant, )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE IN OPPOSITION TO REOPENIFG TIIE RECORD AND ACCEPTING A CONTENTION PROFFERED BY FELLS EDDLEMAN AND CCNC BASED UPON AN APRIL 3,1986 AFFIDAVIT OF PATTY S. MIRIELLO" in the above-captioned proceeding have been served on the following by deposit in the United States mail first class, or (*) through deposit in the Nuclear Regulatory Commission's internal mail system, this 13th day of May , 1986 :

James L. Kelley, Chairman

• Richard D. Wilson, M.D.

Administrative Judge 729 Hunter Street Atomic Safety and Licensing Board Apex, NC 27502 U.S. !!uclear Regulatory Commission Washington, DC 20555 Mr. Glenn O. Bright

• Travis Payne, Esq.

Ac'ministrative Judge 723 W. Johnson Street Ato'mie Safety and Licensing Board P.O. Box 12643 U.S. Nuclear Regulatory Commissien Raleigh , NC 27605 Washington, DC 20555 Dr. James 11. Carpenter

• Dr. Linda Little Administrative Judge Governor's Waste Management Building Atomic Safety and Licensing Board 513 Albermarle Building U.S. Nuclear Regulatory Commission 325 North Salisbury Street Washington, DC 20555 Raleigh, NC 27611 Daniel F. Read John Runkle, Esq. Executive Coordinator CIIANGE Conservation Counsel of North Carolina P.O. Box 2151 307 Granville Rd.

Raleigh, NC 27602 Chapel Hill, NC 27514

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Steven Rochlt.s, Esq. H. Joseph Flynn, Esq.

Regional Counsel Associate General Counsel FEMA Office of General Counsel 1371 Peachtree Street, N.E. FEMA Atlanta, GA 30300 . 500 C Street, S.W. Rm 840 Washington, DC 20472 Atomic Safety and Licensing Appeal Bradley W. Jones, Esq.

Board Pancl* Regional Counsel, USNRC, Region II U.S. Nuclear Regulatory Commission 101 Marietta St. , N.W. Suite 2900 Washington, DC 20555 Atlanta, GA 30323 Robert P. Gruber Executive Director Thomas A. Baxter, Esq.

Public Staff - NCUC John H. O'Neill, Jr. , Esq .

P.O. Box 001 Shaw, Pittman, Potts & Trowbridge Raleigh, NC 27002 1800 M Street, N.W.

Washington, DC 20036 Wells Eddlemen Atomic Safety and Licensing Board s .2 Yancy Street Panel

• Durham, NC 27701 U.S. Nuclear Regulatory Commission Washington, DC 20555 Itichard E. Jones, Esq. H . A. Cole , Jr. , Esq.

Vice President and Senior Counsel Special Deputy Attorney General Carolina Power & Light Company P.O. Box 629 411 Fayetteville Street Mall Raleigh, NC 27601 Raleigh, NC ?7602

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'[ u peary S Mizunn Counse for NRC Staff

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