ML20198A199
| ML20198A199 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 05/15/1986 |
| From: | Christenbury E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| CON-#286-189 OL, NUDOCS 8605200363 | |
| Download: ML20198A199 (7) | |
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! MEMORANDUM FOR: Samuel J. Chilk, Secretary T %ftb g/ hI !
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Victor J. Stello , Jr.for Nb, *
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FROM: Edward S. Christenbury Director & Chief Counsel, Hearing Division Office of the Executive Legal Director
SUBJECT:
REQUEST FOR HEARING IN CONNECTION WITH APPLI-CATION FOR EXEMPTION FROM 10 C.F.R. Part 50, APPENDIX E, SECTION IV.F.1 FOR SiiEARON HARRIS FACILITY On March 4, 1986, the Applicant, Carolina Power a Light requested from the Director, NRR, an exemption from the requirement of Section IV.F.1 of Appendix E to 10 C.F.R. Part 50, to perform a full-participation emergency exercise "within one year before the issuance of the first operating license for full power and prior to operation above 5% of rated power..." By the attached letter, addressed to the Director, NRR, which appears to be dated April 3,1986 on the last page, Mr. Wells Eddleman " petitioned to intervene" in this matter and otherwise commented adversely on the Applicant's exemption request. Mr. Eddleman is an Intervenor in the currently pending Shearon Harris operating license proceeding; however, Mr. Eddleman asserts that the exemption request is outside the licensing hearing. lie asserts that he has a right under Section 189(a) of the Atomic Energy Act to a hearing on the exemption request. On April 22, 1986, the Applicant in a response addressed to the Director, NRR, responded to Mr. Eddleman's request. The Applicant agrees with Mr.
Eddleman that the exemption request is not a matter pending in connection l
with the ongoing operating license proceeding, but argues that
- Mr. Eddleman's petition should be denied. ,
i Since Mr. Eddleman claims a right to a hearing on this matter under Section l
189(a) and both Mr. Eddleman and me Applicant agree that this is a matter j not covered by the currently pending operating license proceeding, Mr. Eddleman's request is transmitted to you in accordance with the l provisions of your memorandum of October 27, 1981 to William J. Dircks
- entitled " Staff Referral of Hearing Requests to the Commission".
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8605200363 860515 0 Edward S. Christenbu l DR ADOCK 0500 Director & Chief Counsel l Hearing Division a
! Office of the Executive Legal l Director Attachment 60 t
neAAo saatcaan -
812 Toncov st. .
Durham, ND 27701-315? #~ '
' 3.IV.1986 V
. Ph (919) 688-0076 rec o I L~ 0 Office of Nuclear Reactor Regulation DSNBC Washington DC 20555
Dear Harold Denton,
This is in reference to Carolina Power & Light's letter to you of 4 March, 1986, Serial NLS-86-053, requesting an exemption from the emergency preparedness exercise requirements of lo C.F.R. 50, Appendix E,Section IV.F.1 to e onduct a full-participation emergency preparedness exercise within one year prior to issuance of the first operatingg l
License for full power and prior to operation above 5 percent of rated power, for the Shearon Harris Nuclear Power Plant ("EArris" or. SENPP).
i First, the delay in ooeration of Harris is entirely due to c'&L's
! actic- ir delaying the clant, which evidently stemed from tan-nntimistf ee
, scheduling and inability to conply with N*C requirements in a timely I manner. CP&L cannot claim that anything but their own failures and
! errors caused the delay.
Second, granting this exemption would violate my, and the general 6 nublic's, right to a hearing under section 189(a) of the Atomic Energy Act, 42 USC 2239(a), which provides "...in any nroceeding under this
- chapter for the granting, suspending, revoking or amending of any license ... and in any nroceeding for the issuance or modification of rules and reguH tions dealing w.ith the activities of licensees ...
the Commission shall grant a hearing upon the request of any verson whose interest may be affected by the proceeding and shall admit
.. any such person as a party to the troceeding.* Since this exemption request is outside the licensing hearing procedures of the,NRC, I hereby petition to intervene in this matter, which is effectively -
an amendment to the operating license application by request to remove a requirement of the NRC. ' Die regulations governing the tining of full participation tests of emergency response clans are in vlace, and Applicants (CP&L for SHNPP) should not be allowed to change the regulations by this end-run, which .ls illegal as a way to avoid a hearing. My interest is that I both live and work withih 30 miles of SHNPP and spend time in the EPZ while conducting my energy and environ-
@ mental consulting work as well; these interests are more fully set forth l
[j !;
in my petition to intervene in the Harris OL proceeding, Ekt 50-400, Feb.1982, which is incorporated by reference hereing to establish
, i my meeting the requirements to intervene under 10 CFR part 2, e.g. 2.714.
8 5 My interest in the proceeding it to rebut the false or misleading gg assertions of CP&L .tk with regard to this license amendment by request j
N for exemption, and to wrotect the public haalth and safety, includine my own and that of others dear to me. I assert further that the NRC j has no rigM to grant this exemption on any economic ground since the :
g Atomic Entr;;y Act under thich the NRC operates requires NRC to put ja.u. health and uafety first, and to authorisation .is in that act to r exemotions on grounds of cost.
Moreover, FEMA has not shankadmand formall evaluated the corrections
~
f[8' or corrective actions proposed for problems identified during the 1985 emergency n1anning exercise at SHNPP. FEMA officials have stated they co.:1d not evaluate the implementation of pronosed corrective act ions uhtil the next full-participation exercise (5-87) (2-11-66 confe?'enee call in NRC Dkt. 50-1500; aee wells adoleman's Response to summar aisnesition-on Contentions EPX-2,and 8, 2-18-86 at pp 2-3J. Besides, the*ye is no NRC
)
i finding that the Plans are adequate, and none can be made without l FEMA findings which cannot be made without another full-particinttion I
' exercise. (Sut even if NRC's ASLB annroves the plan, the arguments in '
the first sentence of this paragraph, last page, remain valid and I stand on them).
CP&L's claimed " justification" for this exenption is anecious or wron6 in its aspect also. First, issuance of an operating license (10 CPR 50.57) is premised on co,pliance with the regulations. So by avoiding conpliance with a regulation, that's a substantial amendment to the operating license. Moreover, the request doep po,t meet part (a) 9 of 10 CPR 50.12 -- the requirement that there be no1 hazard. It doesn't say small hazard or minimal hazard, it says ("No"l? azard. There is a hazard in 2 senses, first that FEKA has not evaluate formally the " fixes" l of deficiencies found by PEFR and others (including State of NC evaluators' during the past exercise, and second, there is no assurance the ability to resnond is maintained, for nuclear emergencies, beyond one year.
The rule so prenises, i.e. that the lenghh of time for which it can be i
assumed that the exercise remains a vutid measure of emergency response for nuclear accidents is at most one year. yMfv,J FtglspHitenky'
~l Moreover, CP&& admits it is still working [on g 3 improvement --
"with the goal of having them ready for NRC inspection in June 1986".
The NRC's mandate in the atomic energy act to put safet means that CP&L cannot claim any hazard is a "due" hazardas(ydistinct first from the " undue hazard" of 10 CPR 50.12(a)).
NRC may not base its decision on activities CP&L and others will
& pronose to undertake (Exemption request p.2) either, because those have not happened and vannot be assumed to be successful. For exanole, in CP&L's training of teachers, it was rectorted that CP&L reeresentatives told Wake County teachers they would never have to imulement the
, emergency plan (i.e. that no accident that serious would hanpen, appears to be the th=ust of the reported remaktrks). Moreover, only
' the "c'onpleted portions" of emergency plan training were found :a te by NRC. If training is not complete, how can the personnel be y for a nuclear emergency?????
Radiological workshops (Exemption request, page 3) are also not evidently As noted conplete, above, sothethere is stillactions corrective a lackby of the training State (CP&L buaies them in the end of the last paragraph on part b of Dage 3 of their exenption request) cannot be formally reviewed and evaluated by FEMA for effectiveness until the next full-participation test.
Much of the training in part (c) on page 3 has also not taken niace.
The planned exercises of Lee County and CP&L (bottom of nage h) have also not yet taken place, auparently, and it is not clear how many, (or for CP&L drills, if any) offsite emergency resnonse eersonnel will participate. The drills in parts (h' ind (i), p.5, seem non-nuclear.
Hardship or costs: CP&L assumes the oublic interest is reducing their l costs, but the increased cost is due to CP&L's own error in scheduling the original full-participation exercise and being unable to complete their nuclear clant in time Moveover, the dollar costs mentioned are not that large, and NRC may not put costs above safety even if the costs were much larger (the costs not being large compared to the cost of nuclea delays created by CP&L, for example, which vrobably run over $500,000 3
. day). The reliff recuested is NOT tenporary (criterion (v), p.6) since the requirement only occurs nrior to licensing. The exenntion is there-fore permanent unless CP&L flubs itt again and has to have a 3d exercise.
Criter$ on (71) n.7 is CP&L's silliest argument, I think. If the second exercise reveals new flaws, that isn't redundant at all, and is litigable under UCS v. NRC. If it reveals the same or sin 11ar flaws, it pgapgugppgegpivg action failed and this is also litigable, not because it a but because the dorrection failed. '
ear.*ng on flaws found in theh and CP&L me mo amm cu o /UCS v. NRC requires
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< Wells Edd eman g'/
.,, )[ 812 Yancey St.
Duham NC 27701-3152 xc: NRC Docketing and Service, 3x
, .r.. r-m Richard E. . Jones, VP & head of legal dept, CP&L Box 1551 Raleigh NC 27602 ;
Tom Saxter, counsel for CP&L Shaw, Pittman Potts & Trowbridge 1800 M St NW X Washingtoh DC 20036
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? CD&L 6, Ca,olina Power & Light Company 8" 5 APR 0 21986 I^
," b5 Dr. J. Nelson Grace, Regional Administrator l United States Nuclear Regulatory Commission Suite 2900 101 Marietta Street, NW Atlanta, GA 30303 SHEARON HARRIS NUCLEAR POWER PLANT UNIT NO.1 - DOCKET NO. 50-400 EMERGENCY PREPAREDNESS EXERCISE
Dear Dr. Grace:
Carolina Power & Light Company (CP&L) has scheduled an emergency preparedness
& exercise for the Shearon Harris Nuclear Power Plant (SHNPP) for June 14,1986. In
~ accordance with the schedule established via letter dated October 11,1984 from Mr. R. C. Lewis to Mr. E. E. Utley, this letter provides the scope of the June exercise and the objectives to be fulfilled.
By letter dated March 4,1986 (NLS-86-053 from Mr. A. B. Cutter to Mr. H. R. Denton),
c' CP&L requested an exemption from the requirement in 10CFR50, Appendix E, Section IV.F.1, to perform a full-participatton exercise "within one year prior to issuance of the first operatmg license for full power and prior to operation above five percent of rated power . . ." Assuming that this exem be a small-scale exercise and satisfies CP&ption L's commitment will beingranted, the4,1986 the March June exercise will exemption request to perform such an exercise in 1986.
i The exercise will consist of a simulated accident at SHNPP which could escalate to a m, general emergency and will involve planned response and recovery actions to include:
emergency classification, notification of off-site organizations and plant personnel, actions to correct the emergency conditions, initiation of accident assessment, and protective actions as necessary to cope with the accident. The small-scale exercise will simulate an emergency,that results in off-site radiological releases. Response by off-site agencies will be simulated.
The objectives of this exercise are to demonstrates (1) the adequacy of the SHNPP t
Emergency Plan and its implementing procedures, (2) the familiarity of CP&L's emergency organization personnel with the plant plan and procedures, (3) adequacy and effectiveness of the plant emergency facilities,(4) the effectiveness and proper l
l 411 Fayettewlle street
- P. o. som t$st e Maieign. N C. 27602
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Dr. 3. Nalson Grtca NLS-86-115/Page 2
'. @..J. procedure of notifying Federal, state, and local government personnel, (5) the capability to produce public information releases, (6) first aid procedures, (7) timely and effective assessment of radiological releases and (8) preparation of reports, messages, and records. ;
3 je nifu you have any questions on this subject, please contact us. ,.
Yours very truly, -
' l ~;?'sC(C R. A. Watson Vice President
.# . .g. . Harris Nuclear Project
_ RAW /JDK/pgp (36533DK) 3 cc: Mr. B. C. Buckley (NRC) Mr. Wells Eddleman
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Mr. G. F. Maxwell (NRC-SHNPP) Mr. John D. Runkle
.. pWtr.'H.R.'Denton OdRC) Dr. Richard D. Wilson is.. 5, Mr. Travis Payne (KUDZU) Mr. G. O. Bright (ASLB) 1..
M- Mr. Daniel F. Read (CHANGE /ELP) Dr. 3. H. Carpenter (ASLB)
Wake County Public Library Mr. 3. L. Kelley (ASLB) t
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April 22, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE DIRECTOR, OFFICE OF NUCLEAR REACTOR REGULATION In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY )
and NORTH CAROLINA EASTERN ) Docket No. 50-400 MUNICIPAL POWER AGENCY ) (10 C.F.R. S 2.206)
)
(Shearon Harris Nuclear Power )
Plant) )
RESPONSE BY CAROLINA POWER & LIGHT CO".PANY AND NORTH CAROLINA EASTERN MUNICIPAL POWER AGENCY TO WELLS EDDLEMAN'S REQUEST FOR
. HEARING ON EMERGENCY PREPAREDNESS EXERCISE EXEMPTION REQUEST I. Introduction Carolina Power & Light Company ("CP&L") and North Carolina Eastern Municipal Power Agency are the holders of Construction Permit No. CPPR-158 for, and applicants for a license to oper-ate, the Shearon Harris Nuclear Power Plant ("SENPP" or
" Harris Plant"). By letter of March 4, 1986 (NLS-86-053) to Mr. Harold R. Denton, Director, Office of Nuclear Reactor Reg-ulation, CP&L requested an exemption from the requirement, in section IV.F.1 of Appendix E to 10 C.F.R. Part 50, to perform a full-participation emergency exercise "within 1 year befora the issuance of the first operating license for full power and 4
prior to operation above 5% of rated power..." for the SENPP.1/
1/ The attachment to the March 4, 1986 CP&L letter is cited hereafter as the " Request".
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In a letter to Mr. Denton dated April 3, 1986, Mr. Wells Eddleman of Durham, North Carolina, comments on the Request,
. and petitions to intervene "in this matter."2/ CP&L and North Carolina Eastern Municipal Power Agency hereby reply to Mr.
Eddleman's letter. For the reasons set forth below, we contend that the Eddleman letter constitutes a request for action under 10 C.F.R. $ 2.206, and that under standards applicable to such petitions it should be denied.3/ Further, the Staff's conside-ration of the exemption request should not be delayed by Mr.
Eddleman's letter, which may be considered as comment on the request. We also respond below to those comments.
. II. The Eddleman Letter Constitutes a Request Under 10 C.F.R. 6 2.206 to Initiate a Proceeding Mr. Eddleman argues that granting the exemption request would violate his and the public's right to a hearing under the Atomic Energy Act, and states that "[s]ince this exemption re-quest is outside the licensing hearing procedures of the NRC, I hereby petition to intervene in this matter...". Petition at 2/ Mr. Eddleman's letter is cited hereafter as the " Peti-tion".
3/ Although licensees are not required to respond to section 2.206 petitions in the absence of a formal request pursuant to 10 C.F.R. $ 50.54(f) or section 182 of the Atomic Energy Act, licensees may respond to such petitions at their own volition.
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
DD-84-16, 20 N.R.C. 161, 163 n.1 (1984).
- 1. Fairly read, Mr. Eddleman's letter seeks the initiation of a proceeding to address his opposition to the subject exemption request. While Mr. Eddleman does not cite 10 C.F.R. $ 2.206, this regulation provides the only formal mechanism for consid-ering the Eddleman letter.4/
Mr. Eddleman is correct that the exemption request is before the Staff and is not an issue in the ongoing adjudica-tory proceeding on the SHNPP operating license application.5/
The function of deciding exemption requests from 10 C.F.R. Part 50 regulations has been delegated by the Commission to the Director of Nuclear Reactor Regulation, and not to adjudicatory boards. Southern California Edision Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-77-35, 5 N.R.C. 1290 (1977); see also 50 Fed. Reg. 50764 (Dec. 12, 1985) ("Traditi-onally, this authority [to grant exemptions from the regula-tions in Part 50] has been delegated by the Commission to its 4/ The Staff could, as well, simply elect to treat the letter as comment on the exemption request since, as discussed below, there clearly is no right to a hearing on the request.
5/ Mr. Eddleman is an intervenor pro se in that proceeding.
The presiding Atomic Safety and Licensing Board has issued three partial initial decisions. See Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-85-5, 21 N.R.C.
410 (1985); LBP-85-28, 22 N.R.C. 232 (1985); LBP-85-49, 22 N.R.C. 899 (1985). Each of these decisions has been appealed to the Atomic Safety and Licensing Appeal Board. The Licensing Board expects to issue a final initial decision in the near fu-ture. Order (Concerning Emergency Planning Exercise Conten-tions), dated March 19, 1986.
4
4 staff which determines whether exemptions are needed and justi-fled."). Further, as the Commission has stated:
At an operating license hearing, a board
- passes only on issues put in contest. The decision as to all other matters which need to be addressed prior to issuance of the license is the responsibility of the Com-mission and Staff outside of the adjudica-tory context.
. ' Louisiana Power & Light Co. (Waterford Steam Electric Station,
)
Unit 3), CLI-86-1, 23 N.R.C. 1, 7 n.5 (1986).6/ Since the sub-i stance of the exemption request is not a contested issue, the operating license adjudicatory proceeding is not the proper forum in which to consider the exemption request.7/
! 6/ Boards may only examine issues not placed-into controversy by the parties where it is determined that a serious safety, environmental, or common defense and security matter exists.
See 10 C.F.R. $2.760a; Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24, 14 N.R.C. 614, 615 (1981); Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2), CLI-86-7, 23 N.R.C.
, slip op. ~ at 3 n.1 ( April 18, 1986).
! 7/ The Commission, as a matter of discretion, has referred exemption requests to licensing boards. See Long Island l Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
CLI-84-8, 19 N.R.C. 1154 (1984); Carolina Power & Light Co.
(Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4),
! CLI-74-9, 7 A.E.C. 197, 198 (1974). In those cases, however,
- the exemption request went to the heart of matters already l before the licensing board. See Cleveland Electric
- Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
LBP-85-33, 22 N.R.C. 442, 446 (1985). (The NRC Staff urged
, ,this distinction upon the Perry licensing board. See, in Dock-i et Nos. 50-440, 441, "NRC Response in Opposition to OCRE Motion to Reopen the Record and Admit Contention on Partial Exemption
- to Appendix J" at 15 n.11 (July 24, 1985).) Here, the basis i
(Continued next page) $
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f In denying a motion to reopen the record in an operating license proceeding, prior to license issuance, the Appeal Board observed:
A party that wishes to raise health, safety or environmental issues but is unable to*do so in a pending adjudication may file a re-quest with the Director of Nuclear Reactor Regulation under 10 C.F.R. 5 2.206 asking the Director to institute a proceeding to address those issues. ,
Union Electric Co. (Callaway Plant, Unit 1), ALAB-750, 18 N.R.C. 1205, 1217 n.39 (1983), as modified, ALAB-750A, 18 N.R.C. 1218 (1983). Thus, while he does not cite l 10 C.F.R. 5 2.206, Mr. Eddleman has lodged his Petition with
-- the appropriate forum within the NRC.g/
(Continued)
, for the exemption request from this schedular requirement, and the standards of 10 C.F.R. 5 50.12(a) by which it will be
. judged, are not related to any contested issue. (Contentions alleging substant1ve planning deficiencies from the results of
- the May 17-18, 1985 full-participation exercise for the SHNPP ,
have been decided in applicants' favor. See Licensing Board j Order of March 19, 1986, supra; LBP-85-49, supra, 22 N.R.C. at 908-14. The admission of some exercise contentions in the l operating license proceeding does not place in contest (i.e.,
i give the Licensing Board jurisdiction over) other aspects of the exercise or other exercise-related NRC requirements. These remain for Staff findings on the license application.) Indeed, ;
the fact,that'the off-site plans (with the exception of one contention still pending) and the 1985 exercise withstood the
! close scrutiny of the Licensing Board supports CP&L's assertion l that the adequate state of off-site emergency preparedness will be maintained until the 1987 exercise. .
@/ The fact that Mr. Eddleman's request to institute a pro-ceeding does not cite 10 C.F.R. 1 2.206 is not significant.
(Continued next page)
-E-
III. Standards for Deciding Whether a Show Cause Proceeding Should be Initiated Section 2.206 of the Commission's regulations provides a mechanism whereby members of the public may request initiation of an enforcement' action to modify, suspend, or revoke a license, or for such other action as may be proper. It also vests authority in the director of the appropriate NRC office to decide whether to institute an enforcement action by the is-suance of a show cause order. The only criterion set forth in the rule itself for judging the sufficiency of a petition is the requirement that "[t]he requests shall specify the action requested and set forth the facts that constitute the basis for the request." See 10 C.F.R. $ 2.206(a).
The apparent reason for the absence of a more specific standard in the regulation is that the decision to institute an enforcement action is not an adjudicative one, but rather is a matter of " prosecutorial" discretion. See Consolidated Edison Company of New York, Inc. (Indian Point Units 1, 2, and 3),
(Continued) ,
Indeed, the Staff has treated under section 2.206 submissions which do not even request the initiation of a proceeding. See, e.g., Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), DD-84-3, 19 N.R.C. 480, 481 n.1 (1984);
Boston Edison Co. (Pilgrim Nuclear Station), DD-82-4, 15 N.R.C. 1359, 1360 n.4 (1982).
4 9
CLI-75-8, 2 N.R.C. 173, 175 (1975). Nevertheless, the Commis-sion has in previous decisions provided guidance delimiting the exercise of this discretion.
In Indian Point, supra, the Commission affirmed a Direc-tor's decision denying a 2.206 petition. In so doing, the Com-mission stated that "[the Director] correctly understood that a show cause order would have been required had he reached the conclusion that substantial health or safety issues had been raised." The Commission also stated that "...a mere dispute over factual issues does not suffice" as a basis for issuance of such an order. Indian Point, supra, CLI-75-8, 2 N.R.C. at 176 (1975).9/ This standard has been acknowledged in dicta by the D.C. and Seventh Circuits. Lorion v. NRC, 712 F.2d 1472, 1475 (D.C. Cir. 1983), rev'd on other grounds sub nom., Florida Power & Light Co. v. Lorion, 105 S. Ct. 1598 (1985), on remand sub nom., Lorion v. NRC, No. 82-1132, slip op. at 6'7 (D.C.
Cir. March 18, 1986); Rockford League of Women Voters v. NRC, 674 F.2d 1218, 1222 (7th Cir. 1982).
The Commission has reiterated the " substantial health and safety issues" standard in Northern Indiana Public Service Co.
9/ The directors have followed the " substantial health and safety issues" test. See, e.g., Philadelphia Electric Co.
(Limerick Generating Station, Units 1 and 2), DD-85-11, 22 N.R.C. 149, 152 (1985); Washington Public Power Supply System (WPPSS Nuclear Project No. 2),. DD-84-7, 19 N.R.C. 899, 923 (1984).
4
-7
l (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 N.R.C. 429, f
433 (1978), aff'd, Porter County Chapter v. NRC, 606 F.2d 1363 (D.C. Cir. 1979). In that case, the Commission also rejected a claim that the Director erred in failing to permit petitioner to comment on, respond to, or cross-examine the views of the NRC Staff:
[The Director] is not required to accord presumptive validity to every assertion of fact, irrespective of its degree of sub-stantiation, or to convene an adjudicatory proceeding in order to determine whether an adjudicatory proceeding is warranted.
Rather, his role at this preliminary stage is to obtain and assess the information he believes necessary to make that determina-tion. Provided he does not abuse his dis-cretion, he is free to rely on a variety of sources of information, including staff analyses of generic issues, documents issued by other agencies, and the comments of licensees on the factual allegations.
Id. at 432-33.
IV. Issuance of a Show Cause -
Order is Not Warranted A threshold basis for denying Mr. Eddleman's petition is that he has no cognizable interest in the exemption request.10/
Mr. Eddleman resides and works well outside the plume exposure pathway EPZ for the Harris Plant.11/ See Petition at 1. The 10/ Mr. Eddleman's assertions that he repr'sents e the public are without foundation. Mr. Eddleman speaks only for himself in his petition.
11/ The vague assertion that Mr. Eddleman " spends time" in the EPZ in connection with his " consulting work" is unsupported.
(Continued next page)
requirement from which an exemption is sought involves the scheduling of a full-participation exercise to test emergency
. response measures principally for the plume exposure pathway EPZ. The fact that Mr. Eddleman qualified as an intervenor in the operating license proceeding is not determinative here.12/
There is no reasonable basis upon which to conclude that some-one in Durham, North Carolina, thirty miles from the Harris Plant, has a health and safety interest under the Atomic Energy Act which could be affected if the next exercise for the plume EPZ takes place in February, 1987 instead of in 1986.
If the Staff nevertheless entertains the Petition, it should conclude that the initiation of a proceeding to consider Mr. Eddleman's comments is unwarranted. The Petition clearly does not raise substantial health and safety issues, with req-uisite factual basis. The Petition also reflects an erroneous interpretation of the law.
Mr. Eddleman appears to argue that section 189 of the Atomic Energy Act confers a right to a hearing on his (Continued)
In any event, an occasional visit to the EPZ is insufficient to establish interest in the exemption request.
12/ The finding, pursuant to 10 C.E.R. 5 2.714, that Mr.
Eddleman h.as an interest which could be affected by the grant
'of the operating license application, does not establish his interest in each and every regulatory actiod the NRC might take with respect to the SENPP.
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petition.13/ Petition at 1. He is incorrect. The Atomic Energy Act contains no provision for a hearing when no proceed-ing has been initiated under section 189a. Consideration of a section 2.206 petition in the first instance is not in itself a proceeding "for the granting, suspending, revoking or amending of any license...". 42 U.S.C. $ 2239(a). The Directors have repeatedly held that there is no right to a hearing on a sec-tion 2.206 petition, which does not involve a proceeding under section 189 of the Atomic Energy Act. See, e.g., Commonwealth Edison Co. (Shipment of Irradiated Nuclear Fuel from West Val-ley, N.Y.), DD-83-14, 18 N.R.C. 726, 728 n.1 (1983); Georgia l Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 and 2),
DD-81-12, 14 N.R.C. 265, 266 n.2 (1981); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), DD-79-22, 10 N.R.C. 728, 731 (1979). See also Illinois v. NRC, 591 F.2d 12, 14 (7th Cir. 1979).
Mr. Eddleman also asserts "that the NRC has no right to grant this exemption on any economic ground since the Atomic Energy Act under which the NRC operates requires NRC to put 13/ Mr. Eddleman sought and obtained from the NRC his section 189 hdaring on the proceeding to consider issuing an operating license. The exemption request clearly does not en-tail a proceeding to issue or modify a rule or regulation. See Petition at 1. The Commission regulation pursuant to which the exemption request was filed does not provide an independent op-portunity for hearing on such a request. See 10 C.F.R. 5 50.12(a).
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health and safety first, and no authorization is in that act for exemptions on grounds of cost". Petition at 1. First, the finding of "special circumstances" required to grant an exemp-tion may be based upon any one of the factors enumerated in 10 C.F.R. I 50.12(a)(2)(i)-(v). The instant exemption request addresses three of those (ii, iii and v), as well as factor vi.
Second, Mr. Eddleman simply is challenging 10 C.F.R.
$ 50.12(a)(2)(iii), which provides for consideration of costs.
I The Director is not authorized to pass upon the validity of Commission regulations. In any case, when it adopted the cur-rent version of section 50.12, the Commission responded to a similar statutory argument advanced by the Union of Concerned Scientists:
The Commission believes that judicial prec-edent and long-standing Commission practice confirm that, within the confines of carry-ing out its paramount responsibility to protect public health and safety, it may consider economic factors in its decision
- - making. The Commission's regulatory man-
! date is couched in terms of " adequate pro-l tection of the public health and safety,"
i 42 U.S.C. 2232. The courts have held that i absolute safety or zero risk is not re-quired, and have interpreted the Atomic En-
! ergy Act to confer considerable discretion on the Commission to determine what level of p"rotection is adequate. Consequently,
- the basic standard is inherently broad and general, rather than precise. As long as a Commission decision adheres to the primary l " adequate protection" standard, the deci-
! sion can legitimately take into account cost considerations.
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1 50 Fed. Reg. 50764, 50767 (Dec. 12, 1985).
Mr. Eddleman's other comments are no more substantial.
For example, he advances the opinion that the need for the ex-emption is attributable to "too optimistic scheduling" by CP&L.
Petition at 1. While the plant schedule has changed since the May, 1985 full-participation exercise, this experience is not unique to the Harris Plant. In addition, it was necessary for CP&L to schedule the exercise sufficiently far in advance of the anticipated licensing date to accommodate hearings and min-imize unnecessary licensing delays. Request at 7. Hindsight shows that CP&L was prudent in anticipating that the exercise would be contested in the operating license proceeding. Fol-lowing the issuance of FEMA's exercise report, and four months after the exercise, Mr. Eddleman filed twelve proposed conten-tions based on the exercise. Six months after the exercise, two of those were admitted by *.he Licensing Board for discovery and adjudication. While CP&L's motions for summary disposi-tion, supported by the Staff and FEMA, were recently granted by the Licensing Board, that action took place ten months after the exercise. See Licensing Board Order (Concerning Emergency Planning Exercise Contentions), March 19, 1986. In spite of CP&L's best efforts to expedite the litigation at every stage, the original licensing schedule woul,d have been jeopardized had any of the contentions gone to hearing.
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Mr. Eddleman questionr,CP&L's assertion that the requested exemption will not pose an undue risk 14/ to the public health and safety. See 10 C.F.R. 5 50.12(a)(1); Petition at 2; Re-quest at 1. In arguing that there is some risk involved, Mr.
Eddleman implies that any risk is unacceptable. This position miscontrues the " undue risk" standard. In adopting this provi-sion, the Commission stated that the Staff will evaluate an ex-emption request to determine "whether adequate protection of the public health 7 and safety would be maintained if the exemp-tion were grantedI" 50 Fed. Reg. 50761, 50768 (Dec. 12, 1985).
i This safety standard represents the statu-tory requirements of section 182 of the
. Atomic Energy Act for " adequate protection to the health and safety of the public."
42 U.S.C. 2232.
Id. To meet this standard, CP&L cited FEMA's conclusion from the May, 1985 SENPP exercise that "the state and local emergen-cy plans are adequate and capable of being implemented and the exercise demonstrated that,off-site preparedness is ade-quate...".15/ CP&L also identified the extensive activities 14/ Mr. Eddleman refers incorrectly to the word " hazard,"
which does not appear in 10 C.F.R. 5 50.12(a)(1).
15/ Only off-site preparedness should be at issue here. CP&L has scheduled an annual exercise, which will test the en-site plan pursuant to Appendix E, 5 IV.F.2, for June 14, 1986 (i.e.,
prior to licensing). Request at 5; letter NLS-86-115, R. A.
Watson (CP&L) to J. Nelson Grace (NRC), April 2, 1986. Never-theless, Mr. Eddleman refers to three on-site inspector follow-up items (and mischaracterizes them as " improvement items"). Petition at 2; Request at 2. 3
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which have been and will be undertaken to maintain the state of
- emergency preparedness until the next exercise, which would be 3
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, conducted pursuant to i IV.F.3 of Appendix E. 16/ Request at 2-5.
Mr. Eddleman advances two alleged risks associated with the exemption request. First, he asserts that there is a risk t
- because FEMA has not formally evaluated the corrective actions proposed for deficiencies revealed by the May, 1985 exercise.
Petition.at 2. Mr. Eddleman's comments would leave the impres-sion that the 1985 exercise demonstrated the need for a remedi-al exercise (see Appendix E, 5 IV.F.4) prior to licensing the
- Harris Plant. Mr. Eddleman here simply ignores the fact that 1
] the exercise revealed no " fundamental flaw" in off-site emer-gency preparedness, and that FEMA made the overall " reasonable J
assurance" finding called for by 10 C.F.R. 5 50.47(a)(1) and (2). If the plant were ready and the Licensing Board's final initial decision were issued, the SENPP could be licensed now on the basis of this finding. No Category A deficiencies were
! . identified during the exercise. As to the minor, or Category B, deficiencies identified, FEMA points out that they
}
t, 16/ The period for which the " undue risk" standard must be applied is the limited one from when the SHNPP exceeds five percent of rated power until the February, 1987 exercise, which will include full-participation by the counties, and support
- from the State of North Carolina.
i
did not detract from the overall capability demonstrated by the State of North Carolina and Wake, Chatham, Harnett, and Lee Counties to protect the health and safety of the public in the event of a ra-diological emergency. *** [ FEMA Region IV] will assure completion by the State of the necessary corrective actions.17/
Mr. Eddleman points to no requirement that FEMA publish a "for-mal" evaluation of corrective actions where the deficiencies to be addressed are minor.lg/
It is also significant that Mr. Eddleman points to no rea-son to suspect that the state of emergency preparedness will deteriorate prior to the next off-site exercise. In this re-gard, it is important to recognize that because of the number of nuclear power plants which affect it, the State of North Carolina and its involved agencies are very experienced in nuclear emergency response, and have exercised their plans and 17/ Memorandum for Edward L. Jordan (NRC), from Richard W.
Krimm (FEMA), August 7, 1985, Interim Findings on Offsite Ra-diological Emergency Response (RER) Plans and Preparedness for the Shearon Harris Nuclear Power Station, attached to Board No-tification No.85-078 (Aug. 21, 1985).
Ig/ Mr. Eddleman asserts that in a telephone conference on February 11, 1986, " FEMA officials . . . stated they could not evaluate the implementation of proposed corrective actions until the next full-participation exercise (5-87)." Petition at 1. This may be true as to the actual implementation and verification of effectiveness, but FEMA is well aware of the corrective actions being undertaken. The State submitted to FEMA Region IV a written description of those actions and a schedule for completion, on November 26, 198,5. FEMA has not questioned the sufficiency of those proposals, and is in commu-nication with State officials on the status of implementation.
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procedures repea.tedly.19/
Second, Mr. Eddleman claims there is a risk because some of the activities CP&L cites which maintain the already ade-quate state of off-site emergency preparedness are not complet-ed at this time. Petition at 2. Mr. Eddleman simply misunder-stands the requirements for off-site emergency preparedness.
The plans themselves have been approved in FEMA's interim find-ings, and the exercise was a success.20/ The NRC makes pre-dictive findings on the adequacy of off-site emergency pre-paredness, which does not become a requirement until a reactor exceeds five percent of rated power. See 10 C.F.R. 5 50.47(d);
50 Fed. Reg. 19323 (1985); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 N.R.C. 681, 710 (1985); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 17 N.R.C. 819, 834-35 (1984); Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 N.R.C. 1076, 1103 (1983). Thus, the fact that training is in progress and exercises are sched-uled, as will be the case throughout the operating life of the SHNPP according to approved plans, does not represent a risk.21/ ,
19/ For example, since the May, 1985 SHNPP exercise, the State has participated in exercises for the McGuire, Brunswick and Catawba plants.
20/ See n. 17, supra.
4 21/ Furthermore, while the matter is not relevant to the ex-emption request, CP&L rejects Mr. Eddleman's reported hearsay (Continued next page)
V. Conclusion
. For all of the foregoing reasons, the Petition should be denied. It clearly does not raise substantial health and safe-ty issues warranting the initiation of a proceeding. Mr.
Eddleman has not set forth any facts which show that the exemp-tion request does not meet the requirements of 10 C.F.R.
$ 50.12(a), and his comments can be categorized as simple dis-agreement with CP&L regarding the appropriateness of the exemp-tion. See Limerick, supra, DD-85-ll. 22 N.R.C. at 153-54 (1985).
Neither should the mere lodging of the Petition delay timely Staff action on the Request. If the Staff crinnot issue a formal section 2.206 decision promptly, then prior to such a decision it should nevertheless proceed to act on the exemption request and consider the Eddleman letter as corumentJ22/ Mr.
(Continued) that CP&L told Wake County teachers they would never have to
. implement the emergency plan. See Petition at 2. The trainers advise the teachers that it is unlikely the plan will have to be implemented, but emphasize the importance of the training so teachers will know what to do if implementation occurs.
22/ "The lead time required to plan for a full-scale exercise and the need to commit the resources of CP&L, FEMA, NRC, and numerous state and local agencies make it imperative that this issue be resolved expeditiously." Request transmittal letter, p.2. While we understand that an exemption *irom this regula-tion is unnecessary in the absence of a full power license, we ask the Staff to document the results of its review of this matter prior to licensing -- just as it hrs done in safety ^
evaluation reports which document whether or not the applica-tion is acceptable for licehsing.
Eddleman has attempted no showing that he is entitled to imme-diately effective, temporary relief. See 10 C.F.R. 5 2.202(f).
Respectfully submitted, Thomas A. Baxter, P.C.
Delissa A. Ridgway SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1090 Richard E. Jones Dale E. Hollar CAROLINA FOWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-8161 Counsel for Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency l
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CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Response by Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency to Wells Eddleman's Request for Hearing on Emergency Preparedness Exercise Exemption Request" were served by deposit in the United States mail, first class, post-age prepaid, this 22nd day of April, 1986, to the following:
Mr. Harold R. Denton, Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Wells Eddleman 812 Yancey Street Durham, North Carolina 27701 A.L%
Thomas A. Baxter, P.C.
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SHAw, PITTMAN, PoTTs & TROWBRIDGE A PARTNtasMap or poortseioNAL CompoMATIoNs 1600 M STRECT. N. W.
WASHINGTON, D. C. 20036 Tettcopite sacas saa-soes a saa-seos TELtx
.so-aee3 ssMAWLAW WsHI CAstt SMAwtAW" MEMORANDUM y tLZo,,t THOMAS A. BAXTER P.C. saoas saa-ioso
SUBJECT:
Distribution of " Response by Carolina' Power & Light Company and North Carolina Eastern Municipal Power Agency to Wells Eddleman's Request for Hearing on Emergency Preparedness Exercise Exemption Request" DATE: April 23, 1986 So that you can make any additional distribution that is
, appropriate, be advised that copies of the referenced document have been sent to the following:
By mail, April 22 Those listed on the certificate of Service By messenger, April 23 Maryland National Bank Building Joseph Scinto iCharles A. Barth.
Janice E. Moore Phillps Building Lester S. Rubenstein (c/o Buckley)
B. C. Buckley East West / West Towers Building David B. Matthews Gerald E. Simonds FEMA, Washington, D.C.
Joseph Flynn By mail, April 23 ,
FEMA, Region IV John Heard Steven Rochlis NRC Region II J. Nelson Grace Bradley W. Jones N.C. Division Emergency Management Joseph F. Myers
.