ML20203N919

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Response Opposing Coalition for Alternatives to Shearon Harris/Eddleman 860731 Request for Hearing on Util Request for Exemption from Requirement to Conduct Full Participation Exercise.Certificate of Svc Encl
ML20203N919
Person / Time
Site: Harris Duke Energy icon.png
Issue date: 10/14/1986
From: Baxter T
CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
NRC COMMISSION (OCM)
References
CON-#486-1103 OL, NUDOCS 8610200114
Download: ML20203N919 (46)
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) /Cd3 00LKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION 16 00T 14 P5:06 BEFORE THE COMMISSION OFFICE CF Si. i:. i AWT 00CXETINa 4 ui FviCF.

In the Matter of ) ERMICH '

)

CAROLINA POWER & LIGHT COMPANY )

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

)

(Shearon Harris Nuclear Power ) I' Plant) )

APPLICANTS' RESPONSE TO CASH /EDDLEMAN BRIEF ON EXEMPTION REQUEST Thomas A. Baxter, P.C.

Delissa A. Ridgway SHAW, PITTMAN, POTTS & TROWBRIDGE Richard E. Jones Dale E. Hollar

. CAROLINA POWER & LIGHT COMPANY Counsel for Applicants October 14, 1986 hhd O 3 sos

O TABLE OF CONTENTS Pace I. Introduction.............................................. 1 II. Background............................................... 5 III. Summary.................................................. 7 IV. There Is No Independent Right To A Formal Hearing On An Exemption Request........................... 9 V. Applicants' Request Is Properly Considered Under 10 C.F.R. S 50.12.................................. 11 VI. Petitioners' Proposed Contentions Fail To Meet Requisite Standards For Consideration In A Hearing.................................................. 15 A. Criteria 5 50.12(a)(1) and S 50.12(a)(2)(ii)........ 17

1. Length of Time Since May 1985 Exercise......... 17
2. Alleged Deficiencies In The May 1985 Exercise....................................... 19
3. Alleged Plan Revisions, Changed Circumstances, and Events Since May 1985 Exercise.............................. 21
4. Public Confidence in Planning.................. 32
5. Demographic Changes............................ 33 B. Criterion 5 50.12(a)(2)(iii)........................ 34 C. Criterion 5 50.12(a)(2)(v).......................... 36 D Criterion 5 50.12(a)(2)(vi)......................... 37 VII. Conclusion............................................... 38

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6 October 14, 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) )

APPLICANTS' RESPONSE TO CASH /EDDLEMAN BRIEF ON EXEMPTION REQUEST I. Introduction By letter of March 4, 1986, to the Director of the Office of Nuclear Reactor Regulation, Mr. Harold Denton (" Exemption Re-quest"), CP&L requested an exemption from that part of 10 C.F.R. Part 50, Appendix E, 5 IV.F.1 which requires that the full par-ticipation 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 exemption request and sought a hearing on the issue. The NRC Staff forwarded Mr.

Eddleman's request for a hearing to the Commission for its consi-deration.1/

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

Christenbury (May 15, 1986); Memorandum for S. Chilk, From E. Christenbury (July 17, 1986).

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.2/ In its response, the Staff took the preliminary position that Applicants'~ exemption request should be granted. Staff Response to Eddleman Petition, at 7 n.5.

By letter to the Commissioners dated July 31, 1986 (" Joint Petition"), Mr. Eddleman reiterated his request for a hearing, l

joined this time by the Coalition for Alternatives to Shearon Harris (" CASH"). . Applicants responded to the Joint Petition as well, again concluding that there is no independent right to a hearing on the exemption request.3/ Further, Applicants noted that the sole issues raised in the hearing requests -- asserted

" deficiencies" in the May 1985 exercise and in the existing plans

-- had no nexus to the exemption request. In essence, Petition-ers sought to relitigate the May 1985 exercise. Further, any al-leged " deficiencies" in the plans which were not related to the 2/ See " Response by Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency To Wells Eddleman's Request for Hearing on Emergency Preparedness Exercise Ex-emption Request" (April 22, 1966) (" Applicants' Response to Eddleman Petition"); "NRC Staff Response To Wells Eddleman's Request For A Hearing On Applicants' Request For Exemption From the Requirement For an Emergency Preparedness Exercise" (July 24, 1986) (" Staff Response to Eddleman Petition").

3/ See " Applicants' Response To Joint CASH /Eddleman Petition For Hearing On Exemption Request" (August 28, 1986) ("Appli-cants' Response to Joint Petition").

t May 1985 exercise should have been timely raised before the Li-censing Board. Applicants therefore argued that, even if con-strued as a petition for admission of a late-filed contention in the operating license proceeding, the requests failed to raise an issue which would be cognizable in a hearing on the exemption re-quest and should be denied.

By Order dated September 12, 1986 (" Order"), the Commission noted its intention to reserve the question of hearing rights on the exemption request, and to first determine "whether there are any material issues of fact to litigate at a hearing." As the Commission noted:

If there are material issues of fact, then the Commission will decide whether a hearing should be held. If there are no material issues of fact, then no purpose would be served by initiating a hearing.

Order at 1. Accordingly, the Commission directed Mr. Eddleman and CASH to file a brief by September 29, 1986, addressing "whether there are any material issues of fact regarding whether the standards of 10 C.F.R. 50.12(a)(1) and (2) for granting an exemption have been met." The Commission further instructed Mr.

Eddleman and CASH to state "with reasonable specificity" the

" contentions" they seek to litigate, "the specific disputed mate-rial facts * *

  • for which they believe a hearing must be held,"

their position on any disputed issues, and the " factual basis" for their position. Order at 2-3.

Finally, the Commission required that the brief filed by Mr.

Eddleman and CASH explain why the issues raised "are material to a determination under 10 C.F.R. 50.12," and that it " set forth their rationale for believing an oral hearing is needed for a full and true discussion of the facts on these issues." The Com-mission noted its particular interest in "whether there have been any significant changes in the emergency plan since the last full-tr ale exercise was conducted, and whether any such changes 4

create material issues of fact regarding whether the standards of 10 C.F.R. 50.12(a)(1) and (2) are met." Similarly, the Commis-sion indicated its interest in "whether the steps taken subse-quent to the exercise to maintain an adequate level of prepared-ness create any material issues of fact regarding whether the standards of 10 C.F.R. 50.12 are met." Order at 3-4.

Pursuant to an extension of time granted by the Commission, the "Brief of Intervenor Wells Eddleman and Coalition For Alter-natives to Shearon Harris Pursuant To Order of The Commission Dated September 12, 1986" (" Joint Brief") was filed on October 6, 1986. In accordance with the Commission's directive, Applicants below "specifically respond to each issue raised by Mr. Eddleman and CASH" (Order at 3), supplementing and incorporating by refer-er.ce Applicants' Responses to the Eddleman Petition and the Joint Petition.

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II. Backcround In order to place in perspective the factual issues raised in the Joint Brief, it is important to recognize that the agen-cy's emergency preparedness review has not just begun.

Emergency response planning for Shearon Harris by CP&L, State and local agencies received close scrutiny in the operating license proceeding. Draft plans were made available early in 1984. The Atomic Safety and Licensing Board, confronted with

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over 200 proposed emergency planning contentions, admitted about 30 for discovery and has resolved all contested issues in favor of license issuance. The Atomic Safety and Licensing Appeal Board has affirmed those decisions -- except for the three emer-gency planning contentions (Eddleman 57-C-3, EPX-2 and EPX-8) re-solved in the Final Licensing Board Decision, now pending before the Appeal Board. See ALAB-843, 24 N.R.C. (Aug. 15, 1986),

l A full participation emergency preparedness exercise was I conducted for the Shearon Harris Nuclear Power Plant plume expo-sure pathway Emergency Planning Zone on May 17-18, 1985. The NRC 1

inspection team reported no violations or deviations, and charac-terized the exercise as " fully successful."4/ Similarly, FEMA concluded that the exercise demonstrated that "the state and i local emergency plans are adequate and capable of being l

4/ NRC Inspection Report No. 50-400/85-20 (June 5, 1985).

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implemented...".5/ The results of the exercise were litigated before the Licensing Board, which in March 1986 resolved the con-tentions in favor of Carolina Power & Light Company ("CP&L" or, with North Carolina Eastern Municipal Power Agency, "Appli-cants"), finding no evidence of a fundamental flaw.g/

The Federal Emergency Management Agency (FEMA) has reviewed the plans and preparedness:

On the basis of its review, FEMA finds that the State and local emergency plans are adequate and capable of being implemented, and the exercise demonstrated that offsite preparedness is adequate to provide reasonable assurance that appropriate measures can be taken to protect the health and safety of the public living in the vicinity of the Shearon Harris station in the event of a ra-diological emergency.7/

The Staff's conclusion is as follows:

On the basis of the staff's review of the appli-cants' radiological emergency plan, the evaluation of the full-participation exercise, and a review of FEMA's finding of State and local emergency plans and preparedness, the staff concludes that the state of onsite and offsite emergency pre-paredness at Shearon Harris provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.8/

1/ Memorandum, for E. Jordan (NRC) from R. Krimm (FEMA) (August 7, 1985) (transmitting FEMA Exercise Report).

s/ " Order (Concerning Emergency Planning Contentions)" (March 19, 1986); LBP-86-11, 23 N.R.C. 294, 397-407 (1986).

7/ NUREG-1038 (Safety Evaluation Report related to the opera-tion of Shearon Harris Nuclear Power Plant, Unit No. 1),

Supplement No. 3 (May 1986), at 13-2.

8/ Id. at 13-3.

III. Summary The Joint Brief begins not with a response to the Commis-sion's Order directing that material issues of fact warranting a hearing be identified, but instead with a host of legal argu-ments. It is argued that: the Commission lacks authority to I

grant exemptions; the requested exemption would constitute a license amendment; the exemption request should have been filed with the Board under 10 C.F.R. S 2.758 (which, it is argued, has

! accompanying hearing rights); if considered under 10 C.F.R. 5 50.12, the exemption request must, as a matter of law, be con-sidered in a hearing before the Licensing Board.

As shown below, these scatter-shot legal arguments are with-out merit. The exemption request was properly filed with the Di-1 rector of the office of Nuclear Reactor Regulation, as was the 1

operating license application it7 elf. Licensing boards at the operating license stage decide only matters placed into contro-versy by the parties. Intervenor Eddleman chose not to file con-tentions on the exemption request with the Licensing Board, but rather asserted an independent right to a hearing under section i

l 189(a) of the Atomic Energy Act, in a letter to the Director of 1

NRR. Thus, issues associated with the exemption request have I

never been raised with the Licensing Board.9/ There is no

9/ The Licensing Board was sent a copy of the March 4, 1986 ex-emption request. In its April 28, 1986 final decision, the (Continued Next Page) i

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r independent right to a hearing on an exemption request being con-sidered by the NRC Staff under 10 C.F.R. S 50.12.

The Joint Brief proceeds to identify a number of factual issues. The issues raised, however, reflect either an effort to re-litigate the 1985 exercise or to reopen the record to raise emergency planning contentions which could have been timely filed with the Licensing or Appeal Boards. The issues raised are ei-ther completely irrelevant to the exemption request, are not ma-terial to a determination under~10 C.F.R. 5 50.12, or do not otherwise warrant a hearing. In short, the Joint Brief fundamen-tally side-steps the simple matter raised by the exemption re-quest -- i.e., whether a full-participation exercise must be con-ducted for Shearon Harris prior to the next such regularly scheduled exercise, which CP&L, the State and counties have set for February 28, 1987 (Continued)

Licensing Board concluded that it has ". . . not determined that a serious safety, environmental, or common defense and security matter exists. See 10 C.F.R. 5 2.760a."

LBP-86-ll, 23 N.R.C. 294, 408 (1986).

'IV. There Is No Independent Right To A Formal _ Hearing On An Exemption Request In the Joint Brief, Petitioners _ persist in their argument --

advanced in_the Eddleman Petition'and the Joint Petition -- that section 189(a) of the Atomic Energy Act accords an independent right to a formal adjudicatory hearing on an exemption re-quest.10/ Joint Petition at 3-7. That statute' confers a right to a hearing in any proceeding "for the granting, suspending, revoking, or amending of any license * * * ." Citing Sholly,.

Mothers for Peace, and Brooks,ll/ Petitioners argue that an ex-emption is itself a license or a license amendment, and therefore must be subject to a formal hearing. But none of these cited cases involved a request for an exemption. Petitioners' reliance is therefore misplaced. Indeed, even though it was cited in Applicants' Response to the Joint Petition, Petitioners have ig-nored the sole case on point -- Duke Power Co. v. Nuclear Reculatory Commission, 770 F.2d 386, 389 (4th Cir. 1985).

10/_ _ Petitioners also contend that the commission lacks the au-thority to grant exemptions from its regulations. There is no merit to this position. See 50 Fed. Rec. 50764, 50766-67 (December 12, 1985), citina United States v. Allecheny -

l Ludlum Steel _ 406 U.S. 742 (1972), and Alabama Power Co. v.

Costle, 636 F.2d 323, 357 (D.C. Cir. 1979).

11/ Sholly v. Nuclear Reculatory Commission, 651 F.2d 780 (D.C.

Cir. 1980), vacated, 459 U.S. 1194 (1983); San Luis Obispo Mothers for Peace v. Nuclear Reculatory Commission, 751 F.2d 1287 (D.C. Cir. 1984), vacated in part and rehearino en banc oranted, 760 F.2d 1320 (1985), on rehearino, 789 F.2d 26 (1986); Brooks v. Atomic Eneroy Commission, 476 F.2d 924 (D.C. Cir. 1973).

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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 Requlatory Commission, 771 F.2d 720, 728-30 (3d Cir.

1985), cert, den. sub nom. Aamodt v. Nuclear Requlatory Commission, 106 S.Ct. 1460 (1986) (rejecting similar argument that conditions imposed by Commission in lifting order suspending TMI-l operations effectively constituted license amendments, entitling petitioners to a formal 5 189(a) hearing). In passing 4

on an exemption, the Commission engages in informal agency adju-dication. Duke Power Co., supra, 770 F.2d at 389.12/ In such cases, the Commission is " authorized to proceed on the basis of I an informal hearing in which it may consider written materials, including factual and legal statements, without holding a formal hearing with traditional trial-type procedures." Id.13/

I 12/ The Commission regulation pursuant to which the exemption request was filed does not provide an independent opportuni-ty for hearing on such a request. See 10 C.F.R. 5 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 agen- ,

j cies. ,See Staff Response to.Eddleman Petition at 4, incl.

n.l.

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

including factual and legal arguments -- on the exemption request. Presumably those comments will be considered in the disposition of the request.

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Nor does reliance on UCS v. Nuclear Regulatory Commission, 735 F.2d 1437 (D.C. Cir. 1984), support Petitioners' claim of an independent right to a hearing here beyond the pending operating license proceeding. The UCS case addressed what issues must be subject to hearing "once a hearing on a' licensing proceeding is begun." 735 F.2d at 1443. It did not confer hearing rights in-dependent of that proceeding. In any event, as discussed above, the May 1985 exercise was liticated in the Harris operating license proceeding. Thus, the right at issue in UCS -- the right to a hearing on the exercise results -- has already been exer-cised here.

Accordingly, Petitioners' claim of an independent right to a formal adjudicatory hearing on the exemption request lacks any legal basis and must be denied.

V. Applicants' Request Is Properly Considered Under 10 C.F.R. S 50.12 Relying upon WPPSS, Wolf Creek, Perry, and Shoreham,14/ Pe-titioners contend that an applicant's request for relief from an 14/ Washincton Public Power Supply System (WPPSS Nuclear Project Nos. 3 and 5), CLI-77-ll, 5 N.R.C. 719 (1977); Kansas Gas &

Electric Co. (Wolf Creek Nuclear Generating Station, Unit No. 1), ALAB-321, 3 N.R.C. 293 (1976); Lono Island Lichting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-8, 19 N.R.C. 1154 (1984); Cleveland Electric Illuminatino 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. , slip op.

at 64-67'(July 25, 1986).

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NRC regulation must be filed pursuant to 10 C.F.R. S 2.758, ex-cept in " exigent circumstances,"15/ when resort to 10 C.F.R.

S 50.12 may be had. According to Petitioners, because Applicants here have not attempted to demonstrate " exigent circumstances,"

relief can be granted only through a S 2.758 petition to waive the provision of Appendix E to 10 C.F.R. Part 50, which is at issue here. Joint Brief at 7-12. But the authorities which Pe-titioners cite have no relevance to the facts in this case.

The WPPSS and Wolf Creek decisions were rendered in con-struction permit proceedings, where a licensing board reviews uncontested as well as contested aspects of the application, and decides whether a permit should be issued. Both WPPSS and Wolf Creek involved requests for exemptions to permit certain con-

.struction activities while applications for Limited Work Authori-zations (which would authorize those activities) were still pend-ing before the respective licensing boards. As the Commission observed in WPPSS, Commission issuance of an exemption under such circumstances would effectively " displace the Board's function 15/ Petitioners appear to argue that an applicant for an exemp-tion must show " exigent circumstances" above and beyond the criteria of 10 C.F.R. S 50.12(a). This is incorrect. In its recent revision of the regulation on exemptions, the Commission codified in S 50.12(a) the factors which histori-cally had been considered in determining the presence of

" exigent circumstances." Thus, a demonstration which satisfies 10 C.F.R. S 50.12(a) now by definition satisfies the " exigent circumstances" test. See 50 Fed. Req. 50764-65 (December 12, 1985).

o prior to a final order of the Board." 5 N.R.C. at 722. But that is not the case here.

In an operating license proceeding, a board passes only on issues put into contest. All other matters to be addressed prior to issuance of the license are decided by the Commission and the Staff outside of the adjudicatory context.16/ 10 C.F.R. 5 2.760a; Louisiana Power & Licht Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 N.R.C. 1, 7 n. 5 (1986).

The Commission, as a matter of discretion, did refer an ex-emption request to the licensing board in the Shoreham operating license proceeding. As the Perry decision points out, the Shoreham case involved a request for an exemption which was di-rectly related to a contention being litigated before the Licens-ing Board. Perry, 22 N.R.C. at 446.

Petitioners concede that S 50.12 may be invoked over 5 2.758 where the exemption does not relate to a contention in the 16/ The function of passing on requests for exemptions from 10 C.F.R. Part 50 has been delegated by the Commission to the Director of Nuclear Reactor Regulation, and not to adjudica-tory boards. Sputhern 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. Req. 50764 (Dec. 12, 1985). Thus, the exemption request was properly filed with the Director of NRR. It was intervenor Eddleman who by-passed the Licensing Board and filed his March 4, 1986 re-quest with the Staff. The Joint Petition of July 31, 1986 again contended that the pending operating license proceed-ing was not the forum for its hearing request. Petitioners cannot now blame the NRC because the exemption request was never contested in the operating license proceeding.

4 licensing proceeding. See Joint Brief at 8-9, citing Perry.

That is precisely the situation presented here. First, Petition-ers ignore the fact that all contested emergency planning issues have been decided, and only one appeal (on siren' night-time noti-fication) has yet to be decided by the Appeal Board. Neverthe-less, Petitioners assert that "the exemption in question -- an exemption from the regulation requiring that emergency prepared-ness exercises be conducted prior to the issuance of an operating license -- was precisely the issue being litigated by interve-nors, and was the subject of intervenors' contentions in the '

emergency planning hearings." Joint Petition at 9. This is pat-ently false.

While more than 200 emergency planning contentions were pro-posed and more than 30 were litigated before the Harris Licensing Board, they addressed such subjects as protection factors of structures in the EPZ, whether emergency workers will respond in i

the event of an emergency, and the ability of sirens to awaken i

the public in the event of a night-time emergency. Even the con-i tentions litigated by Mr. Eddleman as a result of the May 1985 exercise dealt with the adequacy of communications equipment for emergency workers, and with the Emergency Broadcast System.ll/

j Not one of the contentions proposed or litigated related to the 12/ Mr. Eddleman did not appeal the Licensing Board's merits de-cisions on these contentions, i

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subject of this exemption request -- the timing of the full par-ticipation exercise.18/ Accordingly, Applicants' request is properly considered under 10 C.F.R. S 50.12.

Relying on Shoreham, Petitioners alternatively argue that, even under S 50.12, Applicants' exemption request must be subject I

to an adjudicatory hearing. Joint Brief at 11-12. But, as noted above, Shoreham is not applicable here. Rather, as in Perry, Applicants' exemption request is not related to a contention which is being or was litigated in the licensing proceeding, and therefore need not be adjudicated before the Licensing Board.

Thus, since there is no independent right to an adjudicatory hearing on an exemption (see section IV, supra), Petitioners have no legal entitlement to a hearing on Applicants' exemption re-quest.

VI. Petitioners' Proposed Contentions Fail To Meet Requisite Standards For Consideration In A Hearino Contrary to the Order of the Commission, Petitioners have failed to identify the specific " contentions" which they propose to litigate. See Order at 2. Applicants' analysis of Petition-ers' Brief has identified seven discrete allegations.

18/ A remedial exercise prior to licensing might have been re-quired if the intervenors had persuaded the Licensing Board that the May 1985 exercise revealed a fundamental flaw in planning. Intervenors had their opportunity and failed to make that case.

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Petitioners tie five of these allegations -- the length of time since the May 1985 exercise; asserted deficiencies identified through the May 1985 exercise; alleged plan revisions, changes in circumstances, and events since the exercise; alleged demographic changes; and asserted concerns about public confidence in and ed-ucation about planning -- to both 10 C.F.R. S 50.12(a)(1) (wheth-er an exemption will "present an undue risk") and 10 C.F.R.

S 50.12(a)(2)(ii) (whether application of the rule is necessary to achieve the purpose of the rule). In addition, Petitioners assert that Applicants have failed to show that compliance with the rule would result in " undue hardship." See 10 C.F.R.

S 50.12(a)(2)(iii). Finally, Petitioners allege that Applicants cannot show either that relief is temporary or that they have made " good faith efforts" to comply with the regulation. See 10 C.F.R. S 50.12(a)(2)(v).

To justify the exemption, Applicants need only satisfy one of the criteria in 5 50.12(a)(2) (in addition to S 50.12(a)(1)).

Thus, a hearing on Applicants' exemption request would serve no useful purpose unless Petitioners advance relevant contentions (with bases) which, if proven, would demonstrate either that (1) the exemption would "present an undue risk" or (2) that none of the S 50.12(a)(2) "special circumstances" are present in this case. As discussed below, Petitioners' Brief simply fails to raise a contention which would be cognizable in a hearing on Applicants' exemption request.

A. Criteria S 50.12(a)(1) and S 50.12(a)(2)(ii)

1. Length of Time Since May 1985 Exercise Petitioners contend that the exemption will present an

" undue risk" under S 50.12(a)(1) due to the length of time since the May 1985 exercise, and that the application of the regulation at issue is necessary here "to achieve the underlying purpose of the rule." Joint Brief at 16-17, 18-19. But Petitioners offer no factual bases for their assertions. According to the Commis-sion, the purpose of the one year requirement is to assure that

  • *
  • the licensee personnel who will be responsi-ble for the commercial operation of the facility will be present at the site, familiar with the plant and its environs, and trained to carry out the emergency plan. *** In addition, certain instrumentation to be relied on in emergencies may not be fully operational or calibrated. The safe-ty of the plant would be better served by an exer-cise utilizing those licensee personnel who would have to carry out emergency procedures 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. Req.

30233 (July 13, 1982).

In an attempt to support their argument that time alone war-rants rejection of the exemption request, Petitioners assert that Harris will not be ready to operate above 5% power "before late

! summer or fall of 1987." Joint Brief at 16-17. See also Joint Brief at 19. This is patent speculation. Indeed, barring un-foreseen circumstances, CP&L projects readiness for operations above 5% power six to eight weeks after fuel load. In any event, CP&L, the State, and the counties have scheduled another full participation exercise for February, 1987. Letter to H. Denton (NRC), from J. Dean (N.C. Department of Crime Control and Public 1 Safety) (September 29, 1986) (Attachment A hereto). Thus, the period of purported " risk" will be only that short time between commencement of operations above 5% power and the date of the ex-ercise in February, 1987.

As Petitioners note, full participation exercises are re-quired only once every two years for operating plants. See Joint Brief at 18-19. This two-year interval belies Petitioners' sug- '

gestion that emergency preparedness at Harris has been degraded by the mere passage of two years' time.

Moreover, since the rule deems biannual exercises sufficient to maintain an adequate level of emergency preparedness, Peti-tioners' conclusory attacks on the additional measures which as-l sure a continuing state of preparedness -- training and response i

to actual emergencies -- are gratuitous. See Joint Brief at 19-21. And, in any event, Petitioners have failed to even j acknowledge -- let alone attempt to discredit -- the annual exer-cise to be conducted later this month, which will include local

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participation. The exercise will include the following local ac-f tivities:

a. Mobilize appropriate local county staffs;
b. Activate local county emergency facilities;
c. Confirm adequacy of local county facilities;
d. Exercise command and control functions during emergency response;
e. Confirm adequacy of communications between facilities and organizations;
f. Exercise the alert notification procedures;
g. Exercise the capability for ambulance suppo'rt for con-4 taminated injured persons; and
h. Exercise the capability for hospital support for con-taminated injured persons.
See' Letter to H. Denton (NRC), from A. Cutter (CP&L) re
Emer-gency Preparedness Exercise Supplemental Information (May 2, 1986); Letter to H. Denton (NRC), from S. Zimmerman (CP&L) re:

Emergency Preparedness Exercise (July 10, 1986). Thus, there is j

l no legal or factual basis for Petitioners' allegations that the exemption will present an " undue risk" due to the passage of time since the May 1985 exercise. In fact, the period of " risk" in this case is uniquely short because of the passage of time, j 2. Alleced Deficiencies In The May 1985 Exercise I

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In a further attempt to support their arguments that the ex-emption will present an " undue risk" and that application of the i

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rule is necessary to achieve its underlying purpose, Petitioners assert that " serious defects" in the emergency plans were identi-fied as a result of the May 1985 exercise. Joint Brief at 14, 16, 25-31. Petitioners completely ignore the fact that the re-sults of that exercise were litigated before the Licensing Board, which found no evidence of a fundamental flaw. The Commission is not entertaining here a separate vehicle for appealing those findings.

Pe.titioners question the characterization of that exercise as " fully successful," as well as the observations that CP&L

" played very well" and that "the. training and commitment to emer-gency preparedness was obvious in this exercise." Further, Peti-tioners challenge Applicants' statement that FEMA found the state and local plans " adequate and capable of being implemented," and that "the exercise demonstrated that offsite preparedness is ade-quate." But those are the words of the NRC and FEMA, not the words of Applicants. Compare Joint Brief at 24-25 with NRC

! Inspection Report No. 50-400/85-20 (June 5, 1985) and Memorandum, I

for E. Jordan (NRC) from R. ~ Krimm (FEMA) (August 7, 1985).

Despite the glowing reviews of the exercise, Petitioners in-sist that the May 1985 exercise identified problems related to

" critical components" of the plans. Joint Brief at 25-31. But, as Applicants have previously noted, such allegations have no nexus to Applicants' exemption request. See Applicants' Response to Joint Petition, at 6-9. Petitioners would have had the same l

S complaints about the May 1985 exercise even if the plant had com-menced full power operation within one year of that exercise (obviating the need for the exemption). In effect, Petitioners seek to relitigate the May 1985 exercise. Such issues plainly are not cognizable in-this context.

3. Alleged Plan-Revisions, Changed Circumstances, 1

and Events Since May 1985 Exercise i

Petitioners next assert that a variety of alleged revisions to plans, changed circumstances, and events which have taken place since the May 1985 exercise preclude granting the exemp-tion. But, as discussed below, these assertions too are either unrelated _to the exemption, or lacking in basis, or both.

First, Petitioners point to the sounding of one of the emer-gency sirens within the Harris EPZ, which had been vandalized.

See generally " Applicants' Response to CASH's Show Cause Peti-tion" (August 15, 1986) at 16-22 (discussing incident). Noting that some citizens reported that they were not awakened by this single siren, Petitioners assert that the ability of sirens to awaken people indoors at night "must be resolved." Joint Brief at 33. But the efficacy of night-time notification was litigated exhaustively before the Harris Licensing Board, which expressly approved the adequacy of the public alert / notification system for the Harris EPZ. Specifically, the Licensing Board concluded that

-- under " worst case" conditions (e.g., summer night, when people m ._ ,n-, , -

are sleeping, with air conditioners on) -- approximately 98.5% of the people within five miles of the plant.would be warned within the first 15 minutes of an emergency (by sirens, tone alerts, and informal notification). The Licensing Board further found that more than 90% of those between five and ten miles from the plant would be warned within the same period (by sirens and informal notification). See LBP-86-11, 23 N.R.C. 294, 395-96 (1986)'.

Moreover, Petitioners cannot show that another full partici-pation exercise would provide. additional useful information about night-time notification, since there is no requirement that siren systems ever be tested at night, even during exercises. Indeed, where separate tests of the alert / notification system are con-ducted, the system need not be activated at all during an exer-cise.19/

19/ Petitioners also emphasize that law enforcement agencies and Harris plant personnel were initially unaware of the siren

~

activation when they were contacted by members of the public who had heard the vandalized siren. But Petitioners cannot demonstrate that the incident has any safety significance whatsoever. In a real emergency, CP&L would promptly notify

> offsite authorities, using dedicated phone lines, not the sirens. Those offsite authorities would in turn decide whether to sound the sirens by~ activating them remotely, from central locations in each of the four counties in the EPZ. Thus, in the event of an actual emergency, both onsite and offsite authorities would be fully apprised of the activation of the siren system. Because there'was no.emer-gency at the Harris Plant when the vandalized siren sounded, emergency procedures -- including " rumor control" procedures

-- were not implemented. Accordingly, this isolated inci-dent of vandalism can evidence no flaws in those procedures.

(Continued Next Page)

Further, Petitioners fail to explain how the issues they raise as a result of the vandalism incident (e.a., siren securi-ty) would be tested in a full participation exercise. See Joint Brief at 34. Nor can they do so. Because the siren vandalism issues are unrelated to the alleged need for another full partic-ipation exercise, they are therefore immaterial to the exemption.

(Continued)

Moreover, the regulatory scheme does not contemplate that the-public is to rely upon personal conversations with State and local authorities as the source'of information and instructions in an emergency. In compliance with NUREG-0654, everyone within the EPZ has been sent a calen-dar/ brochure which provides information related to a Harris emergency, including instructions for action upon hearing the sirens. Those instructions properly emphasize not that residents should call the plant or state and local author-ities, but rather that they should tune their TV or radio to the Emergency Broadcast System to determine whether there is an actual emergency and, if so, what protective actions are recommended.

In~any event, CP&L recognized that any siren activation raises concern among citizens near that siren. Therefore, despite the lack of safety significance, CP&L' committed to review and modify procedures (as needed) to assure that --

if a siren should accidentally sound in the future -- the Company when notified will in turn notify appropriate Com-pany, State and local personnel, as well as the news media, so that any public concern can be dispelled promptly. In addition, CP&L is working with appropriate State and local agencies, to assure that procedures are established so that those agencies notify CP&L promptly of any siren activation.

l See " Applicants' Response to CASH's Show Cause Petition" l (August 15, 1986), at 20. In short, the siren vandalism in-

'cident which Petitioners cite not only does not identify a

" fundamental flaw" in planning, it has no safety signifi-cance at all.

l l

I

Petitioners also express generalized concern about the noti-fication of hearing-impaired persons. Joint Brief at' 33. How-ever, they offer no basis for their unspecified conc' erns, and they fail to explain how a full participation exercise would.re-solve them. In any event, like the night-time notification issue, emergency notification of the hearing-impaired was also litigated -- and approved -- by the Licensing Board below. See

" Memorandum and Order (Ruling on Eleven Summary Disposition Mo-tions)" (February 27, 1985); " Applicants' Motion For Summary Dis-position of CHANGE 17"-(December 21, 1984).

Finally, Petitioners report alleged malfunctions in tone alert radios distributed within the first five miles of the EPZ.

Joint Brief at 34. The tone alert system too was litigated 9 before the Licensing. Board, which approved Applicants' comprehen-sive testing, maintenance and repair programs. See LBP-86-ll, 23 N.R.C. 294, 391-96 (1986). And Petitioners have failed to indi-cate what an exercise will test that is not already tested by the "self-test" features of the radios, and by the routine testing conducted weekly. See id. at 394. Certainly Petitioners have demonstrated no nexus between the exemption and the distribution l

l of tone alert radios in the remainder of the plume EPZ, which they urge. See Joint Brief at 34. Nor can they demonstrate such a nexus. Thus, like the rest of the public notification issues which Petitioners advance, the tone alert issues cited are imma-terial and simply would not be cognizable in a hearing on Applicants' exemption request.

Petitioners further argue that time, personnel changes, and modificat' ions in chain of command also require denial of the ex-emp t i,on . Joint Brief at 34-35. However, as discussed above, the regulations on exercise frequency are based on the Commission's informed judgment that preparedness will not be signifi'cantly de-graded by the mere passage of up to two years' time. Moreover, it is clear that the simple fact of personnel changes and modifi-cations in chain of command do not necessarily require a new ex-ercise.. If it were not so, exercises across the country would be required virtually continuously, to keep pace with such day-to-day activities as the post-election change of state and local of-ficials, promotions, retirements and the attrition and re-cruitment of emergency workers. Petitioners here have completely failed to demonstrate that the turnover.in key personnel has been so great or the changes in the chain of command so major as to rebut the regulatory presumption that preparednesc is adequately maintained for at least two years' time. In short, Petitioners' assertions are lacking in basis, and do not suggest a potential

" fundamental flaw" in preparedness.

Petitioners' single specific example of personnel changes and changes to the chain of command is "the transfer of responsi-bility for traffic control in Lee County, from the Police Chief to the Sheriff." Joint Brief at 34. But, it strains credulity to assert that either the Police Chief or the Sheriff would be unable to direct traffic control in an emergency, when it is so l

. =.

fundamental a part of everyday law enforcement activity. Cer-tainly a transfer of traffic control responsibility from one law enforcement agency in one county to another does not -- without more -- evidence a possible " fundamental flaw."

Moreover, contrary to the implication in the Joint Brief, responsibility for traffic control is not being transferred from one official who is familiar with the Harris plans to another who is not. Rather, the current plan reflects that the Police Chief has primary responsibility, while the Sheriff has secondary re-sponsibilit'y. See N.C. Plan,20/ Part 4, at 4-5. In'the upcoming revision to which Petitioners refer, those roles will be reversed -- to indicate that the Sheriff has primary responsibil-ity -- as demonstrated in the May 1985 exercise. See FEMA Exer-cise Report at 5, 27 (reflecting Sheriff's role in traffic con-trol, which is characterized as " outstanding"). Thus, Petitioners' broad allegations of personnel changes and changes in chain of command do not suggest the need for another full par-ticipation exercise, and -- even if true -- would not constitute a " fundamental flaw" in preparedness.

Petitioners next assert that Chatham County resources will not be available to warn and evacuate boaters and other visitors to the Jordan Lake recreation area in the event of an emergency 20/ " North Carolina Emergency Response Plan In Support of the Shearon Harris Nuclear Power Plant."

at Harris. According to Petitioners, this "[r]aises substantial issues of fact as to who or what agency will in fact provide" for the visitors to Jordan Lake, suggesting a " fundamental flaw" in planning. Joint Brief at 35.

Petitioners have greatly exaggerated Chatham County's role in radiological emergency response for the Jordan Lake area.

While the plan indicates that Chatham County is responsible to initiate and direct notification for Jordan Lake, this role is not unique to that area; rather, it is a County role for the en-tirety of its jurisdiction. In addition, the plan lists the County Sheriff's Department as a rc;ourcc for conducting notifi-cation and warning around the lake. But the Sheriff's Department is not the only -- or even the primary -- agency which would pro-vide emergency publ.ic notification to the Jordan Lake area. The North Carolina Wildlife Resources Commission has direction and control of emergency operations at Jordan Lake, with assistance provided by agencies such as the State Division of Forest Re-sources, the Jordan Lake Division of the Army Corps of Engineers, and the Division of Parks and Recreation ~-- all in addition to the Chatham County Sheriff's Department. See N.C. Plan, Annex G.

Indeed, a quick review of the plan indicates that the resources of the Sheriff's Department are but a small fraction of those available from the other agencies. Given the full complement of resources available to assist with notification and-evacuation of Jordan Lake, Petitioners' allegations simply do not suggest a

" fundamental flaw" in planning.

l i

l 1

1 Moreover, Petitioners have failed to identify a nexus be-tween the exercise and the exemption on the one hand, and their concerns about Jordan Lake on the other. Applicable federal guidance recognizes that the non-emergency use of certain types of public notification -- sirens and public address systems on speeding vehicles and aircraft, for example -- can be needlessly alarming and dangerous to the public. Accordingly, the use of such systems is generally only simulated for exercise purposes.

See FEMA-43, " Standard Guide For The Evaluation of Alert and No-tification Systems For Nuclear Power Plants" (September 1983), at N-3. Thus, it is not at all clear how another full participation exercise would address Petitioners' concern; certainly Petition-ers have failed to address the point. Accordingly, Petitioners' issues concerning Jordan Lake are immaterial and would not be cognizable in a hearing on Applicants' exemption request.

Petitioners further assert that " questions have arisen" con-cerning Chatham Hospital's ability to accept contaminated injured patients in the event of an emergency at Harris. Joint Brief at 37-38. While it is true that negotiations toward. arrangements with Chatham Hospital are ongoing, Petitioners are simply wrong in asserting that the plan presently relies upon Chatham Hospital for treatment of contaminated injured persons.21/ The emergency 21/ In the hearings before the Licensing Board, a radiologist who serves as a consultant to the United Nations Scientific (Continued Next Page) plan listing for Chatham Hospital states unequivocally:

Number of radiation patients which can be handled:

None N.C. Plan, Part 1, at 69. Because the plan does not rely on Chatham Hospital, and because FEMA has approved the plan (includ-ing the provisions for medical services), Petitioners' claims are baseless. See " FEMA Interim Findings Report" (June 12, 1985), at 16.

Petitioners also criticize North Carolina Memorial Hospi-tal's policy to accept only persons in need of in-patient treat-ment. Joint Brief at 38. But Petitioners have offered no reason why the hospital should expend its precious resources on members of the public who need only to be~ monitored and decontaminated.

Indeed, the hospital's policy is an eminently reasonable alloca-tion of resources, and is consistent with the NRC's regulatory guidance, which provides for separate, non-medical facilities for monitoring and decontamination of the general public. See NUREG-0654, Criterion J.12. Thus, contrary to Petitioners' as-sertions, the two hospital issues they raise do not suggest " fun-damental flaws" in the plan. Moreover, Petitioners again have (Continued)

Committee on the Effects of Atomic Radiation evaluated Chatham Hospital and found it capable of treating cases of severe radiation exposure for the first 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />. See

" Applicants' Motion For Summary Disposition of Eddleman 57-C-7" (January 2, 1985); " Memorandum and Order (Ruling on Eleven Summary Disposition Motions)" (February 27, 1985).

failed to explain how an exercise would facil'itate resolution of their concerns. Therefore, like the other issues raised, Peti-tioners' medical services contentions would not be cognizable in a hearing on Applicants' exemption request.

Petitioners also assert that certain-allegedly " key county employees" -- actually, shelter workers.-- have submitted affida-vits stating that they will participate in exercises, but will not respond in the event of an emergency at Harris. Joint Brief at 38-39. Clearly this concern would not be resolved by another full participation exercise; thus, it has no nexus to Applicants' exemption request, and would not be cognizable in a hearing on that request.

Moreover, the subject of human response to an emergency is one of the most litigated issues in NRC licensing hearings. NRC case law recognizes that, in actual emergencies, people conform to pro-social behavior patterns and assume their roles under the emergency plan, even where they have earlier asserted that they would not do so. See, e.g., Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-82-70, 16 N.R.C.

756, 825 (1982) (characterizing as " unreliable" people's state-ments about their likely behavior under stress while being inter-viewed under unstressed conditions); Consolidated Edison Co. of New York (Indian Point, Unit No. 2), LBP-83-68, 18 N.R.C. 811, 958 (1983) (in actual emergency, people behave in pro-social man-ner and in accord with roles under plan, despite earlier assertions to the contrary).

C Indeed, the responsiveness of emergency workers in the event of a Harris emergency was litigated before the Licensing Board here. The Licensing Board granted summary' disposition in favor of CP&L, based upon the historical record of emergency response in hundreds of natural and technological disasters across the country, as well as the testimony of State officials that North Carolina emergency workers (both paid and volunteer) are on record as performing their assigned functions in the face of im-minent~ life-threatening situations, such as tornados, hurricanes,

. forest fires and floods. See " Memorandum and Order (Ruling on Remaining Summary Disposition Motions)" (April 24, 1985); "Appli-cants' Motion For Summary Disposition of EPJ-3" (January 11, 1985). See also Tr. 7780-92 (evidentiary record on EPJ-4(b),

concerning emergency worker response); Indian Point, supra, 18 N.R.C. at 957-59 (relying on. FEMA testimony that past experience demonstrates that emergency workers fulfill their duties);

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-81-59, 14 N.R.C. 1211, 1487 (1981) (noting FEMA testimony that, based on previous disaster experience, emergency l workers can be expected to " perform their emergency functions re-i gardless of conflicting demands.") Thus, Petitioners' concerns l

about the responsiveness of some Chatham County public health l

workers do not suggest a " fundamental flaw" in the plan, nor could they be resolved through the conduct of a full participa-t l tion exercise. Accordingly, they are immaterial and would not be cognizable in a hearing on Applicants' exemption request.

1 I

i Finally, Petitioners argue that a second full participation exercise is necessary to test the Fuquay-Varina Rural Fire De-partment, which has recently replaced Apex Fire Department as an onsite fire service provider. Joint Brief at 41-42. However, there is ao requirement that all fire departments participate in all exercises; and the Holly Springs Fire Department, another onsite fire service provider, is the one which participated in the May 1985 exercise. Exercise Report at 6, 30. Contrary to the implication of Petitioners' argument, the Apex Fire Depart-ment did not participate in the May 1985 exercise. Thus, the change from the Apex Fire Department to the Fuquay-Varina Rural Fire Department has not occasioned a loss of exercise experience.

Accordingly, the underlying premise.of Petitioners' allegation is flawed, and their contention lacks both factual and legal basis.

4. Public Confidence In Planning Citing an informal opinion poll of local residents, and ac-cusing CP&L's President of misrepresenting the emergency plans for Harris, Petitioners assert that another full participation exercise of the plan is necessary to educate the public about the plan and to give them confidence in the plan. Joint Brief at 15, 16, 35-37. However, exercises are conducted not for the educa-tion of the public, but rather to test the emergency workers who would actually respond in the event of an emergency. Cf. 10 C.F.R. Part 50, Appendix E, S IV.F.1. Public education about

emergency response is provided by the emergency public in-formation brochure, distributed annually within the F.PZ, which clearly addresses evacuation as well as sheltering, and graphi-cally illustrates the potential need to take protective actions within a full 10 mile radius of the plant.

Moreover, the. Commission does not base its licensing deci-sions concerning emergency preparedness on "public confidence,"

but rather on FEMA Interim Findings. See 10 C.F.R.

S 50.47(a)(2). Petitioners have failed to explain why a lack of confidence in planning on the part of some members of the public would impede. emergency response or otherwise constitute a." fatal flaw" in emergency preparedness. Finally, i f the success of the May 1985 full participation exercise was not sufficient to give the public confidence in the emergency plan, Petitioners offer no reason why a second, equally successful full-participation exer-cise would do so. Accordingly, Petitioners' concern about public education and confidence in-the plan is not material and would not be cognizable in a hearing on Applicants' exe'mption request.

I I

5. Demographic Chances Relying upon a letter to the NRC'from the Attorney General of North Carolina, Petitioners contend that another full partici-

[

l pation exercise is necessary due to growth in the area and to ed-( ucate those who have recently moved into the area about the l

plans. Joint Brief at 15, 16, 35-37. However, as discussed

,----e- , , , y - -

y ,_.3-- - - , . , -

--.--w,..,~g.n._. - -- g e_--r-,w ---- m,

above, exercises are not training tools for the public. More-over, contrary to Petitioners' assertions, an exercise would not test the ability of local roads to carry the increased popula-tion. The Commission's regulations do not require public partic-ipation in exercises. See 10 C.F.R. Part 50, Appendix E, 5 IV.F.1. Certainly an exercise would not involve a mock evacua-tion of the general public, just to test the capacities of Routes 1 and 64 (as Petitioners seem to suggest). The alleged growth of the area is therefore immaterial to the asserted need for a sec-ond full participation exercise, and would not be a cognizable l issue in a hearing on Applicants' exemption request.

B. Criterion 5 50.12(a)(2)(iii)

Petitioners assert that Applicants have failed to satisfy criterion (iii) of 10 C.F.R. S 50.12(a)(2), which requires a showing that compliance with the regulation would result in undue hardship or other costs significantly in excess of those incurred by others similarly situated. In particular, Petitioners attack Applicants' position that a second full participation exercise prior to operation of Harris above 5% power would work a finan-cial hardship on CP&L and on state and local agencies. Joint Brief at 12-14, 21-23. Specifically, Petitioners allege:

[A]n exemption from a regulation based on a showing of financial hardship would be appropriate only where the generalized factual premise for the regulation was that compliance with the regulation would be relatively inexpensive and easy, and changes subsequent to the issuance of the l l l

I

regulation now make compliance expensive and dif-ficult fo'r this Applicant. No such changed cir-cumstance has either been alleged or exists.

Joint Brief at 13. To the contrary, Petitioners have apparently overlooked Applicants' observation that the Commission did not contemplate that more than one pre-licensing full participation exercise would have to be conducted for a given reactor when it adopted 10'C.F.R. Part 50, Appendix E, S IV.F.1. See Exemption Request, Attachment at 5. It is beyond cavil that the costs of a second exercise constitute " costs that are significantly in ex-cess of those contemplated when the regulation was adopted."22/

Petitioners further criticize Applicants for advocating the interests of the state and local governments, its partners in emergency planning. Joint Brief at 21-23. Citing his letter to the Commission advocating a second full participation exercise, Petitioners cloak the North Carolina Attorney General with the "public interest." But the Attorney General has no expertise in or responsibility for emergency planning. In contrast, the Sec-retary of the North Carolina Department of Crime Control and Pub-lic Safety -- which represents the Governor in emergency manage-ment matters -- recently wrote the Commission to express the Department's support for Applicants' exemption request. See Attachment A hereto. As noted in that letter, the Department of 22/ Additional costs associated with delay of plant operations could also be incurred if a second full participation exer-cise were determined to be litigable.

Crime Control and Public Safety includes the Division of Emergen-cy Management, which has primary responsibility.for the develop-ment and implementation of emergency plans for fixed nuclear fa-cilities in North Carolina.

Finally, Applicants recognize that the disposition of the exemption request will not be influenced by letter writing compaigns. It is nevertheless interesting to note that the ori-gins of the letters cited by Petitioners -- Durham, Carrboro, Chapel Hill and Orange County -- are all outside the Harris plume EPZ.

Petitioners' challenge to Applicants' showing of " undue hardship" is thus lacking in merit. Moreover, because the dif-ference between the position of Petitioners and Applicants is in essence an issue of law, an evidentiary hearing on the subject is unnecessary and would serve no useful purpose.

C. Criterion 5 50.12(a)(2)(v)

Asserting that Applicants have made no good faith effort to comply with the one year requirement, and that there can be no

" temporary" relief from that requirement, Petitioners also con-test Applicants' showing on 10 C.F.R. S 50.12(a)(2)(v). Peti-tioners' Brief at 23-24. In judging " good faith," with the bene-fit of hindsight, Petitioners look at the NRC Caseload Forecast Panel's projection one month after the exercise. Joint Brief at

23. But, to support the 1985 exercise, it was necessary to begin O

planning in January 1985. And, as late as the NRC's quarterly report to Congress for the third quarter 1985 ("Bevill Report"),

the.NRC reflected a fuel load date of March 1986. See Exemption Request, Attachment at 6.

Moreover, while Petitioners object to the characterization of the exemption as " temporary," it is equally misleading to con-sider it " permanent." Indeed, after the one-time exemption is used, Applicants will be in compliance with the regulations on exercise frequency for the operating life of the Harris plant'.

And, as discussed above, the period between commencement of oper-ations above 5% power and the next full participation exercise will be exceedingly short. .

D. Criterion S 50.12(a)(2)(vi)

While Petitioners contend generally that Applicants do not satisfy any of the exemption criteria (Joint Brief at 17), they have not challenged Applicants'. reliance on criterion (vi), which authorizes exemptions where "[t]here is present any other materi-al circumstance not considered when the regulation was adopted l

l for which it would'be in the public interest to grant an exemp-l tion." 10 C.F.R. S 50.12(a)(2)(vi). Accordingly, even assuming l

arquendo the litigability of Petitioners' allegations challenging I

l Applicants' showings of other "special circumstances," the Com-mission could grant the exemption based on criterion (vi) alone.

l Thus, after finding that Petitioners have failed to identify a l

litigable contention alleging " undue risk," the Commission could deny the hearing requests, relying on criterion (vi) to authorize the exemption.

VII. Conclusion While an exemption can never be granted if it would "present an undue risk" (5 50.12(a)(1)), an exemption can be granted based-on a demonstration of any one of the "special circumstances" set forth in S 50.12(a)(2)(i)-(iv). Thus, a hearing on Applicants' exemption request would serve no useful purpose unless Petition-ers advance relevant contentions (with bases) which, if proven, would demonstrate either that (1) the exemption would "presant an undue risk" or (2) that none of the "special circumstances" are present in this case. For all the foregoing reasons, the issues raised by Petitioners here do not meet that burden. The issues raised reflect either an effort to re-litigate the May 1985 exer-cise or to reopen the record to raise emergency planning conten-tions which could have been filed with the Licensing Board or tne i

Appeal Board on a timely basis. Further, the issues are either wholly irrelevant to the exemption request, are not material to a l

l l

T 1

determination under 10 C.F.R. S 50.12, or do not otherwise war-rant a hearing. Accordingly, the requests for hearing on Appli-cants' exemption request should be denied.

Respectfully submitted,

_= .

Thomas A. Baxter, P.C.

Delissa A. Ridgway SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.

Washington, D.C. 20037 (202) 663-8000 -

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: October 14, 1986 o

gr Attachm:nt A

[

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m:3.......e v .% .-

North Carolina Department of Crime Control and Public Safety Joseph W. Dean, Sctrerary James G. Manin, Governor September 29, 1986 Mr. Harold R. Denton, Director l

Office of Nuclear Reacter Regulation United States Nuclear Regulatory Commission Washington, D. C.

Dear Mr. Denton:

On March 4, 1986, Carolina Power & Light Company (CP&L) requested a license to operate the Shearon Harris Nuclear Power Plant. CP&L further requested that the U.

S..

Nuclear Regulatory Commission grant a schedular exemption E, S from the requirements in 10 CFR Part 50, Appendix that a IV.F.1. This regulation would require full-participation exercise of the Harris emergency plan "be conducted within 1 year before the issuance of the and prior to first operating license for full power operation above 5% of rated power."

The North Carolina Department of Crime Control schedular and Public Safety supports CP&L's request for a Emergency The Department's Division of exemption. primary' Management (DEM) is the State agency with j

responsibility for the development and implementation of emergency plans in support ofthe fixedinitial nucleardecision facilities. to The Division was involved in r,equest an exemption and has planned its exercise schedule accordingly. .

Management has worked The Division of Emergency closely with CP&L, the NRC, the Federal Emergency counties to

  • Management Agency, and the four affected for the Harris develop a comprehensive emergency plan emergency Plant. The Division has conducted numerous planning exercises for nuclear power plants since 1980 and has responded to many major non-nuclear emergencies (some of which have involved large-scale evacuations) in our 512 N. Salisbury Street e P. O. Box 27687 e Raleigh, Nonh Carolina 27611 7687 e (919) 733-2 An EqualOpportunity
  • Afinturive Aomn Fmplover j

e 4

- Mr. Harold R. Denton September 29, 1986 -

Page 2 In May 1985, the Division of Emergency Management State.

other organizations involved conducted a very and the successful exercise of the Harris Plant emergency plan.

Both the FEMA evaluation and the Division's own internal review confirmed an overall statethen, of readiness for offsite the Division has planning and response.' Since to local provided additional training and to other maintain assistance that state of emergency workers in order readiness. A partial exercise 1986,with and local participation a full participation is scheduled for October'28, The Department of exercise of scheduled for February 1987 represents the Crime Control and Public Safety, which Governor in this matter, is confident that the level of indeed, emergency preparedness has been maintained and, enhanced since the May 1985 exercise.

In view of these' considerations , the Department of Crime Control and Public Safety does not believe that yet another full-participation exercise prior to operation of '

the Harris Plant is necessary in light of the previous exercise, the one scheduled for October of this1987 year, and This full exercise scheduled- for February, the Department will cooperate fully with any action you think best. .

J With very best wishes, I am Sin'cerely, ,

W. I Joseph W. Dean JWD:ch e ,

4 October 14, 1986 ,

E UNITED STATES OF AMERICA Of3h[C '

NUCLEAR REGULATORY COMMISSION

'86 0CT 14 P5:07 BEFORE THE COMMISSION OFFILE u a ,nc n,,

DOCHEI!.NGf. 5 E R v!(,f~

BRAllCH 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' Response to CASH /Eddleman Brief on Exemption Request" were served this 14th day of October, 1986, by deposit in the U.S. mail, first class, postage prepaid, to all those listed on the attached Service List, except that the Office of the Secretary of the Commission has been served by hand.

l l

bb5 A. A ninen Delissi4. Ridigwag '

i

f UNITED STATES OF AMERICA NUCLEAR REGULATORY 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) )

SERVICE LIST. ,

l 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 Washington, D.C. 20555 James L. Kelley, Esquire Commissioner Frederick M. Bernthal Atomic Safety and Licensing Board i U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Mr. Glenn O. Bright Commissioner Kenneth M. Carr Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. James H. Carpenter Thomas S. Moore, Esquire Atomic Safety and Licensing Board Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Charles A. Barth, Esquire Dr. Richard D. Wilson Janice E. Moore, Esquire 729 Hunter Street Apex, North Carolina 27502 Of fice of the General Counsel 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 H. A. Cole, Jr., Esquire Atlanta, Georgia 30303 Special Deputy Attorney General Mr. Robert P. Gruber 200 New Bern Avenue Raleigh, North Carolina 27601 Executive Director Public Staff - NCUC Joseph Flynn, Esquire P. O. Box 29520 Raleigh, North Carolina 27262-0520 Federal Emergency Management Agency 500 C Street, S.W.,

John D. Runkle, Esquire Washington, D.C. 20740 Conservation Council of North Carolina 307 Granville Road Chapel Hill, North Carolina 27514 M. Travis Payne, Esquire Edelstein and Payne P.O. Box 12607 Raleigh, North Carolina 27605 Coalition for Alternatives to Shearon Harris (CASH) 604 W. Chapel Hill Street Durham, North Carolina 27701 .

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