ML20203M002

Response Opposing Coalition for Alternatives to Shearon Harris/Eddleman 860731 Joint Petition for Hearing on Exemption Request Re Full Participation Emergency Preparedness Exercise.W/Certificate of Svc

ML20203M002
Person / Time
Site:	Harris
Issue date:	08/28/1986
From:	Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC COMMISSION (OCM)
References
CON-#386-515 OL, NUDOCS 8609020135
Download: ML20203M002 (13)

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o 00LKliED USNRC August 28, 1986 16 RE 29 P4 :28 UNITED STATES OF AMERICA NUCLEARREGULATORYCOMMISSIOqfFi 0C j ~!'

BRANCH 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) )

APPLICANTS' RESPONSE TO JOINT CASH /EDDLEMAN PETITION FOR HEARING ON EXEMPTION REQUEST I. Introduction A full participation emergency preparedness exercise was conducted for the Shearon Harris Nuclear Power Plant plume expo-sure pathway Emergency Planning Zone on May 17-18, 1985. The NRC inspection team reported no violations or deviations, and charac-terized the exercise as " fully successful."1/ Similarly, FEMA concluded that the exercise demonstrated that "the state and local emergency plans are adequate and capable of being imple-mented..."2/ The results of the axercise were litigated before 1/ NRC Inspection Report No. 50-400/85-20 (June 5, 1985).

2/ Memorandum, for E. Jordan (NRC) from R. Krimm (FEMA) (August 7, 1985) (transmitting FEMA report on exercise).

DR hO 5 86082s G K 05000400 PDR

F, the Atomic Safety and Licensing Board, which in March 1986 re-solved the contentions in favor of Carolina Power & Light Company

("CP&L" or, with North. Carolina Eastern Municipal Power Agency,

" Applicants"), finding no evidence of a fundamental flaw.3/

By letter of March 4, 1986, to the Director of the Office of Nuclear Reactor Regulation, Mr. Harold Denton, CP&L requested an exemption from that part of 10 C.F.R. Part 50, Appendix E,

$ IV.F.1 which requires that the full participation exercise be conducted within one year of issuance of the full power license and prior to operation above 5% of rated power. In a letter to Mr. Denton dated April 3, 1986 ("Eddleman Petition"), Mr. Wells Eddleman commented on the hearing requests and sought a heating on the issue. The NRC Staff forwarded Mr. Eddleman's request for a hearing to the Commission for its consideration.4/

Applicants and the NRC Staff responded to the Eddleman Peti-tion, both concluding that Mr. Eddleman is not entitled to a hearing on the exemption request.5/ The Eddleman Petition is 3/ " Order (Concerning Emergency Planning Contentions)" (March 19, 1986); LBP-86-11, 23 N.R.C. 294, 397-407 (1986).

4/ See Memorandum for S. Chilk, Through V. Stello, From E.

Christenbury (May 15, 1986); Memorandum for S. Chilk, From E.

Christenbury (July 17, 1986).

5/ See " Response By Carolina' Power & Light Company and North Carolina Eastern Municipal Power Agency To Wells Eddleman's Re-quest for Hearing on Emergency Preparedness Exercise Exemption Request" (April 22, 1986) (" Applicants' Response"); "NRC Staff Response To Wells Eddleman's Request For A Hearing On Applicants' Request For Exemption From the Requirement For an Emergency Pre-paredness Exercise" (July 24, 1986) (" Staff Response").

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presently pending before the Commission.s/

By letter to the Commissioners dated July 31, 1986 (the

" Joint Petition"), Mr. Eddleman and the Coalition for Alterna-  ;

tives to Shearon Harris (" CASH") jointly petition for a hearing on the exemption request.7/ Applicants herein respond to the Joint Petition, supplementing and incorporating by reference Applicants' Response to the Eddleman Petition.

For the reasons set forth below, Applicants agree with the Staff that there is no independent right to a formal adjudicatory hearing on an exemption request. See Staff Response at 3-5.

Applicants further concur in the Staff's view that the successful May 1985 full participation exercise should be considered the

" exercise of record," which serves as the basis for licensing ac-tion, with any subsequent exercise deemed confirmatory. Under this construction, the pending exemption request does not concern i

a requirement for initial licensing; thus, no hearing rights s/ The NRC Staff has taken a preliminary position that Appli-cants' exemption request should be granted. See Staff Response at 7 n.5.

7/ Ar. Eddleman, who is a member of CASH but not an attorney, signed the filing with the Commission twice -- once on his own behalf, and once for Mr. Steven Katz, whom Applicants believe also to be a member of CASH but not an attorney. While the Joint Petition is purportedly filed on behalf of a number of individ-uals in addition to CASH and Mr. Eddleman (i.e., Calvin Ragan et al.), under Commission regulations Messrs. Eddleman and Katz have no authority to represent the other individuals. See 10 C.E.R.

$ 2.713(1); Consolidated Edison ':o. of New York (Indian Point, Unit No. 2), LBP-82-25, 15 N.R.C. 715, 726 (1982).

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attach to the exemption request.g/ See Staff Response at 6-8.

In addition, Applicants present an alternative basis for denial of the hearing requests. As discussed :iore fully below, even if construed as a late-filed contention in the operating license proceeding, the Joint Petition fails to raise an issue which would be cognizable in a hearing on Applicants' exemption re-quest. Accordingly, the Commission should deny the requests for a hearing on the exemption, resting its decision on both the rea-soning advanced by the Staff and Applicants' alternative set forth herein.

II. There Is No Independent Right To A Formal Hearing On An Exemption Request Like the Eddleman Petition, the Joint Petition asserts that section 189(a) of the Atomic Energy Act accords an independent right to a formal adjudicatory hearing on an exemption request.

That statute provides for a right to a hearing in any proceeding "for the granting, suspending, revoking, or amending of any license...." 42 U.L.C. $ 2239(a). Citing Sholly, Deukmejian, and Brooks,9/ Petitioners argue that an exemption is itself a g/ Nor would an opportunity for hearing be associated with any confirmatory exercise.

9/ Sholly v. Nuc' lear Regulatory Commission, 651 F.2d 780 (D.C.

Cir. 1980), vacated, 459 U.S. 1194 (1983); San Luis Obispo Moth-ers for Peace v. Nuclear Regulatory Commission, 751 F.2d 1287 (D.C. Circuit 1984), vacated in part and rehearing en banc (Continued Next Page)

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license or'a license amendment, and therefore must be subject to a formal hearing. There is no merit to this trgument.

Section 189(a) of the Atomic Energy Act is to be construed narrowly and not to confer hearing rights where they have not been expressly granted. See Three Mile Island Alert, Inc. v.

Nuclear Regulatory ' Commission, 771 F.2d 720, 728-30 (3d Cir.

1985), cert. den. sub nom. Aamodt v. Nuclear Regulatory i Commission, 106 S.Ct. 1460 (1986) (rejecting similar argument that conditions imposed by Commission in lifting order suspending TMI-1 operations effectively constituted license amendments, entitling petitioners to a formal 9 189(a) hearing). In passing on an exemption, the Commission engages in informal agency adju-dication. Duke Power Co. v. Nuclear Regulatory Commission, 770 F..d 2 386, 389 (4th Cir. 1985).10/ In such cases, the Commission is " authorized to proceed on the basis of an informal hearing in which it may consider written materials, including factual and (Continued) granted, 760 F.2d 1320 (D.C. Cir. 1985), on rehearing, 789 F.2d 26 (D.C. Cir. 1986) (which Petitioners refer to as Deukmejian);

Brooks v. Atomic Energy Commission, 476 F.2d 924 (D.C. Cir.

1973).

4 10/ The Commission regulation pursuant to which the exemption i request was filed does not provide an independent opportunity for l

hearing on such a request. See 10 C.F.R. E 50.12(a). Further, it has been longstanding Commission policy and practice that no mandatory hearing rights attach to the granting or denial of an exemption. The Commission's policy and practice is consistent with that of other federal agencies. See Staff Response at 4, incl. n.1.

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? O legal statements; without holding a formal hearing with traditi-ona) trial-type procedures." Id.11/ Accordingly, Petitioners' claim of an independent right to a formal adjudicatory hearing on the exemption request lacks any legal basis and must be rejected.

III. Petitioners' Concerns Fail To Meet The Standards For Consideration In The Operating License Proceeding The Commission need not limit the basis for its decision to the statutory argument advanced by Petitioners. Although both Mr. Eddleman and CASH expressly disavow any intent to contest the exemption request in the pending section 189(a) proceeding,12/

11/ Here, both Mr. Eddleman and CASH have filed comments --

including factual and legal arguments -- on the exemption re-quest. Presumably those comments will be considered in the dis-position of the request.

12/ See, e.g., " Memorandum and Order" (Appeal Board July 11, 1986) at 2 (rejecting CASH petition to intervene in OL proceed-ing, noting that CASH professes no intent to raise new conten-tions, but only to participate in appellate process); Eddleman Petition (asserting right to hearing "outside the licensing hear-ing procedures of the NRC"); Joint Petition (contending that in-stant hearing request "cannot be handled in that [OL] proceed-ing").

Like the Eddleman Petition, the Joint Petition criticizes Applicants for filing their exemption request with the NRC Staff rather than the Licensing Board. Joint Petition at 2. However, as discussed more fully at pages 3 to 4 of Applicants' Response to the Eddleman Petition, the function of passing on requests for exemptions from 10 C.F.R. Part 50 has been delegatd by the Com-mission to the Director of Nuclear Reactor Regulation, and not to adjudicatory boards. Southern California Edison 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). In an operating license hearing, a board passes only on issues put into (Continued Next Page)

their requests for a hearing could most charitably be construed as a petition for admission of a late-filed contention in the operating license proceeding. Even so, their requests fail to meet the requisite standards. Indeed, because Petitioners' re-quests do not raise an issue which would be cognizable in a hear-ing on the exemption request, the Commission need not reach ei-ther the criteria for reopening the record or the "five factors" test for admissibility of a late-filed contention -- both of which would be applicable here.13/

(Continued)

contest. All other matters tc be addressed prior to issuance of the license are decided by the Commission and the Staff outside of the adjudicatory context. Louisiana Power & Light Co.

(Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 N.R.C. 1, 7 n.5 (1986). Thus, Applicants' exemption request was properly lodged with the NRC Staff. See generally, Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-85-33, 22 N.R.C. 442 (1985), aff'd, ALAB-841, 24 N.R.C. (July 25, 1986) (slip op. at 64-67).

In the' operating license proceeding, Mr. Eddleman has pro-posed hundreds of contentions, including untimely ones. Thus, he is well aware of the procedure for contesting issues in the case.

Mr. Eddleman decided not to attempt to place the substance of the exemption request before the Licensing Board as a proposed con-tention, even though the Licensing Board had not disposed of the ,

proceeding at the time the Eddleman Petition was filed with the Staff.

13/ See,-e.g., Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 N.R.C. 1, 4-5 (1986);

Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-831, 23 N.R.C. 62, 64 (1986); 10 C.F.R.

, 9 2.714(a)(1)(i) - (v).

The Joint Petition simply fails to raise a contention which would be cognizable in a hearing on Applicants' request. The proper focus of any hearing on Applicants' request would be the substance of the exemption -- the timing of the full participa-tion exercise. According to the Commission, the purpose of the one year requirement is to assure that

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• the licensee personnel who will be re-sponsible for the commercial operation of the facility will be present at the site, famil-iar with the plant and its environs, and trained to ca'rry out the emergency plan. *** In. addition, certain instrumen-tation to be relied on in emergencies may not be fully operational or calibrated. The safety of the plant would be better served by an exercise utilizing those licensee person-nel who would have to carry out emergency procedurec once the plant is licensed for commercial operation.

Union of Concerned Scientists, DPRM-83-1, 17 N.R.C. 719, 723-24 (1983). However, Petitioners do not appear to dispute that the May 1985 full participation exercise fulfilled the purpose of the one year requirement -- i.e., that "the operating and management staff of the plant -- who are central figures in an exercise --

[were) in place and trained for an emergency." 47 Fed. Reg. 30233 (July 13, 1982).

Fairly read, the Joint Petition asserts that a second full-participation exercise should be required prior co licensing "in light of the numerous deficiencies the public has found in the present emergency plans, and the concerns of participants in

b the exercise of 1985 that the exercise did not show the plan would work, that they were not clear on what to do, and did not know clearly what their responsibilities were, and were inade-quately trained." Joint Petition at 2. This contention has no nexus to Applicants' exemption request. Petitioners would have had the same complaint about the May 1985 exercise even if the plant had commenced full power operation within one year of the May 1985 exercise (obviating the need for the exemption). Ir. es-sence, Petitioners seek to relitigate the May 1985 full partici-pation exercise. And any alleged " deficiencies" in the Emergency Plan which were not related to the May 1985 exercise should have been timely raised before the Licensing Board. Such issues plainly are not cognizable in this procedural context. Accord-ingly, the hearing requests must be denied.

IV. Conclusion Contrary to Petitioners' assertions, there is no independent right to a formal adjudicatory hearing on an exemption request.

Further, as the Staff points out, the successful May 1985 full participation exercise should be considered the basis for licens-ing, with any subsequent exercise deemed confirmatory. Thus, the pending exemption request does not concern a requirement for ini-tial licensing, and no hearing rights attach. Alternatively, the Joint Petition could be construed as a petition to file a late contention on the exemption in the operating license proceeding.

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e Even so, the Joint Petition fails to raise an issue which would be cognizable in a hearing on the exemption request.

For all of the foregoing reasons, Applicants respectfully request that the Commission act swiftly to adopt both the posi-tion of the NRC Staff and the alternative reasoning advanced by Applicants, denying the Joint Petition as well as the Eddleman Petition.14/

Respectfully submitted, s,- = , .

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. Hollhr CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-8161 Counsel for Applicants Dated: august 28, 1986 14/ See Letter to Commissioners from E. Utley (CP&L), dated August 1, 1986 (requesting expeditious and definitive Commission disposition of request for hearing on exemption).

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UNITED STATES OF AMERICA DO K TED NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION OFFICE OF SEtnt. !AkV In the Matter of ) 00CKEi g jEtr/lCf.

)

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 hereoy certify that copies of " Applicants' Response to Joint CASH /Eddleman Petition For Hearing on Exemption Request" were served this 28th day of August, 1986, by deposit in the U.S.

mail, first class, postage prepaid, to all those listed on the attached Service List.

Delissa A. ~$. h'_d&&

KidghafJ U a

• n. .- . . . , . . , , , --- , - ,, . - - , - _ - . - _ , , , _ - _ . , . _ . - - -

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

)

)

CAROLINA POWER & LIGHT COMPANY and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL J- MUNICIPAL PO*4ER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

SERVICE LIST Chairman Lando W. Zech, Jr. Dr. Reginald L. Gotchy U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Thomas M. Roberts Mr. Howard A. Wilber U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board Commissioner James K. Asselstine U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i

l Washington, D.C. 20555 James L. Kelley, Esquire i

! Commissioner Frederick M. Bernthal Atomic Safety and Licensing Board '

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 20555 Washington, D.C. 20555 i Washington, D.C.

1. • """ * # I Commissioner Kenneth Carr ^ Y "

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission

Washington, D.C. 20555 Washington, D.C. 20555 j Thomas S. Moore, Esquire Dr. James H. Carpenter

^ * # ' Y "" *'

A om Safety and Licensin9 U.S. Nuclear Regulatory Commission 8 "' *

• U.S. N c car Regulatory Commission Washington, D.C. 20555 l

l

Charles A. Barth, Esquire Dr. Richard D. Wilson Janica E. Moore, Esquire 729 Hunter Street Of fice of the General Counsel 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. Road, 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 Caroline. 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 29520 Joseph Flynn, Esquire

> Raleigh, North Carolina 27262 Federal Emergency Management Agenc l 500 C Street, S.W.,

John D. Runkle, Esquire Washington, D.C. 20740 Conservation Council of i North Carolina 307 Granville Road Chapel Hill, North Carolina 27514 M. Travis Payne, Esquire l

Edelstein and Payne P.O. Box 12607 Raleigh, North Carolina 27605 Coalition for Alternatives to Shearon Harris (CASH) 237 McCauley Street Chapel Hill, North Carolina 27514 , l I

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