ML20206P664
| ML20206P664 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 06/25/1986 |
| From: | Barth C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#386-797 OL, NUDOCS 8607020189 | |
| Download: ML20206P664 (13) | |
Text
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J Q(l UNITED STATES OF AMERICA 00cgfD NUCLEAR REGULATORY COMMISSION USN c
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD.
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In the Matter of
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ogg, f CAROLINA POWER AND LIGHT
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50-400 Oli,Fr+,ie rb_ ' 4 r.,
COMPANY AND NORTII CAROLINA
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Docket No.
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EASTERN MUNICIPAL POWER
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AGENCY
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(Shearon Harris Nuclear Power Plant, )
Unit 1)
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NRC STAFF RESPONSE TO MOTION OF COALITION FOR ALTERNATIVES TO SHEARON HARRIS WELLS EDDLEMAN FOR A STAY OF THE IMMEDIATE EFFECTIVENSS OF THE FINAL LICENSING BOARD 4
Charles A. Barth Counsel for NRC Staff June 25,1986 8607020189 86062 PDR ADOCK 05000400 G
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UNITED STATES OF AMERICA to NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOA DM 27 C
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CAROLINA POWER AND LIGHT
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COMPANY AND NORTH CAROLINA
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Docket No.
50-400 OL '
EASTERN MUNICIPAL POWER
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AGENCY
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(Shearon Harris Nuclear Power Plant, )
Unit 1)
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NRC STAFF RESPONSE TO MOTION OF COALITION FOR ALTERNATIVES TO SHEARON HARRIS WELLS EDDLEMAN FOR A STAY OF THE IMMEDIATE EFFECTIVENSS OF THE FINAL LICENSING BOARD Charles A. Barth Counsel for NRC Staff June 25,1986
J 00cgfh0 UNITED STATES OF AMERICA USo NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING A Edh IlOARD
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C CAROLINA POWER AND LIGIIT
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COMPANY AND NORTH CAROLINA
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Docket No.
50-400 OL EASTERN MUNICIPAL POWER
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AGENCY
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(Shearon Harris Nuclear Power Plant, )
Unit 1)
)
NRC STAFF RESPONSE TO MOTION OF COALITION FOR ALTERNATIVES TO SHEARON HARRIS AND WELLS EDDLEMAN FOR A STAY OF THE IMMEDIATE EFFECTIVENESS OF THE FINAL LICENSING BOARD INTRODUCTION The Licensing Board issued its Final Licensing Board Decision (Final PID) in this proceeding on April 28, 1986.
Coalition For Alternatives To Shearon Harris (CASH), a stranger to this proceeding, and Wells Eddleman, an intervenor, filed an untitled document dated June 9, II which moves the Anpeal Board for a stay of the immediate 1986 effectiveness of the Final PID. 2,/
1/
Although the action is dated June 9, 1986, the envelope in which the Staff received the Motion is dated June 10, 1986.
The Staff has calculated its response time based on the postmark on the envelope.
-2/
Also on June 9,1986 CCNC and Mr. Eddleman moved the Commission to stay all power operations of the Ilarris facility.
" Request To Continue Stay Indefinitely" (June 9,1986).
- I DISCUSSION CASH is not a party-intervenor 3,/ in this proceeding and therefore has no standing to make motions to the Appeal Board. O CASH is not further addressed in this filing and Mr. Eddleman is considered as the sole proponent of the motion.
The Commission Rules of Practice,10 C.F.R. I 2.788, set forth the requirementa a movant must meet to be granted a stay of a decision by one of the Commission's adjudicatory boares.
In 10 C.F.R. I 2.788 (a),
the regulation explicitly provides that an application for a stay of the effectiveness of an agency action shall be filed within 10 days after service of the decision sought to be stayed.
The Licensing Board's
" Final Licensing Board Decision" was issued on April 28, 1986.
A motion for a stay, therefore, was required to be filed by May 13, 1986 (10 C.F.R. Il 2.788(a) and 2.710).
No extension of time was sought by movants pursuant to 10 C.F.R. I 2.711.
No good cause for filing late is set forth in the motion.
The Commission emphasized in its Statement of Policy on Conduct of Licensing Proceedings, 46 Fed. Reg. 28533 (May 27, 1981) that time requirements of the regulations must be met and that good cause must be provided for failing to keep time schedules.
No good 3/
On June 9,1986, CASH filed a " Petition For Leave To Intervene" as a party in these appellate proceedings.
That petition is now
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l pending before the Appeal Board.
4/
10 C.F.R.
I 2.788(a) specifically provides "...any pjart to the proceeding may File..." emphasis supplied.
See also, Philadelphia
~
Electric Company, (Limerick Generating Station, Units 1 and 2),
ALAB-808, 21 NRC 1595, 1598 n.1 (1985).
Indeed, in Virginia Electric and Power Company (North Anna Nuclear Power Station,
Units 1 and 2), ALAB-529, 9 NRC 153,158 n.1 (1979) the Appeal Board refused even to consider communications from a non-party.
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cause having been shown by movants for failing to file their motion for a stay within the time period specified in 10 C.F.R.
I 2.788, the motion should be denied.
Movants rely upon the May 27, 1986 resolution of the Chatham County North Carolina Board of Commissioners which "... rescinds all prior approvals of the Shearon Harris Emergency Response Plan...."
(copy attached) and the then unresolved matter of proffered contention 5_/ to show that they have satisfied the criteria of 10 C.F.R.
WB-4 I 2.788.
We address first the requirement of 5 2.788 that the movant demonstrate likelihood of prevailing on the merits. The function of the Licensing Board in an operating license proceeding is to resolve, upon an evidentiary record, matters placed in controversy, among the parties.
This the Harris licensing board has done.
Its Final Licensing Board Decision completes the Board's resolution of all admitted contentions.
Neither the Chatham County Resolution of May 27, 1986 nor the then non-resolution b of proffered contention WB -4 relate directly to any contention resolved in the Licensing Board's Final Licensing Board Decision, or indeed upon any admitted contention sponsored by any party to this proceeding.
It is true that contentions were raised by various of the Intervenors relating to emergency preparedness issues; some were rejected as not complying with the requirements of 10 C.F.R. I 2.715(b),
-5/
In its " Memorandum and Order (Rejecting Late Proposed Contention Concerning Alleged Falsification of Radiation Exposure Records)"
dated June 13, 1986 the Licensing Board in a detailed ruling denied admission of proffered cor.tention WB-4.
I 6/
The Board's Order of June 13, 1986 further cuts against Mr.
Eddleman's motion to stay.
I l
_4_
others were litigated.
However, none dealt with Chatham County's participation in the emergency plan.
Based upon issuance of the Licensing Board decision, the Staff currently is considering the issuance of an operating license authorizing fuel loading and/or low power operations up to 5% of the rated power.
The Staff previously made the 9
finding that the state of onsite emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
To date, the Staff has not changed its finding based on the resolution of Chatham County. The meaning and effect of the Chatham County Resolution are not clear upon its face.
The Chatham County Recolution does not state that the County will not participate with the state in the event of an emergency.
Nor have the County commiss'ioners identified to the NRC any " unresolved issues."
Accordingly, at this time all the requirement of 10 C.F.R. 5 50.47(d) have been met and the low power license may be issued.
Movants have not made any showing, as contrasted to the required strong showing, that they would prevail on the merits of any appeal of the Final Licensing Board Decision.
Most recently the Appeal Board dealt with a motion for a stay in Philadelphia Electric Company (Limerick Generating Station,
Unit 1),
ALAB-835, 23 NRC April 11, 1986 slip op.
There the Limerick Appeal Board emphasized the need for the movant to make a strong showing of irreparable damage if the stay is not granted. O Id., slip op, at 4-5.
Movants allege that the irreparable harm which would result from the absence of a stay, would be that the operating license would be granted and that "...the proceeding followed their [ sic] natural course, grave safety consequences would result where Chatham does not participate in the mandatory EMP. [ sic ]."
Motion at 3. It appears that the harm alleged is some generalized " grave safety consequences" if Chatham County does not participate in the emergency plan in the event of an accident.
However, no basis is provided for the belief that in the natural course of events, an accident or some other event requiring activation of the IIarris emergency plans will occur. Movant's argument is grounded on unsupported speculation.
It is well-established in Commission case law that speculation about a nuclear accident does not, as a matter of law, constitute the imminent, irreparable injury required for a stay.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-84-5, 19 NRC 953,964 (1984); Limerick, supra, ALAB-835, slip op, at 5.
Furthermore, there is no showing of irreparable harm to Mr. Eddleman personally if the stay is not granted.
Mr. Eddleman lives in Durham, North Carolina which is outside of the plume exposure pathway EPZ and which is also not in Chatham County.
Whatever the situation regarding emergency planning in Chatham County, i
l
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This is in accord with Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Unit 1), CLI-8 6-4, 23 NRC 113, 122 (1986) and Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), CLI-86-6, 23 NRC 130,134 (1986).
. h!r. Eddleman has failed to show any causal connection between his own health, safety and well being and the Chatham County Resolution.
51r. Eddleman has not, and cannot, establish that harm or injury, both certain and great, will befall him if the stay is not granted. 8,/
With regard to the second matter relied upon as a basis for a stay, proffered contention WB-4, the irreparable harm alleged is an apparent inability of his. Bliriello to obtain her complete radiation protection record from the Applicant which in turn is affecting her ability to obtain employment.
Biotion at 7.
No facts in support of these allegation are contained in the motion nor is any nexus shown between the issuance of a stay and these allegations concerning his. Bliriello.
In short, the movants argument is not understandable so that it can be responded to by the other parties.
Such argument is manifestly insufficient to support the issuance of a stay.
With regard to the third and fourth stay criteria (harm to other parties resulting from a grant of stay relief and public interest consideration), these favor denial of the stay request.
Certainly, grant of the stay will delay fuel load and online commercial power at great financial expense to Applicants and customers in their service area.
In the Staff's view the public interest lies in expeditious operation of the llarris unit without compromise to the health and safety of the population.
The motion, in its entirety, does not convincingly raise any issue of compromise of the public's health and safety.
8,/
See especially Limerick, supra, ALAB-835, slip op. at 5 and the cases cited there.
' CONCLUSION The motion does not satisfy the requirements of 10 C.F.R. I 2.788 for a stay of the Final Licensing Board Decision and should be denied.
Respectfully submitted,
[L 0
th Charles A. Barth h
Counsel for NRC Staff Dated at Bethesda, Maryland this 25th day of June,1986 l
1 i
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i A Resolution Concerning se the shearon -Harris :Ruclear Power Plant.
WHEREA5, the nuclear-power pleit accident on April 26 nr 1986 in Chernobyl USSR has aroused widespread. concern withkn i'
the United States and throughout the.world e6out the safety of nuclear power plants, and.
WHEREA5, thel e has surfaced within Chatham county s' widespread and intense opposition to..the nearly completed Shearon Harris Nuclear Power Plant constructed by Chroline.
,t Pewer and Light Company, and WHEREAS, there are subst.entini and. unresolved issues about the Chatham County evacuation plan, i
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NOW, THEREFORE SE IT RESOLVED that the Chatham County Board of Commissione,rs hereby rescir.da all prior approvals er the shenron Harris Emergency Resicase F1sn pending 4
further critiesi examinatio.n of the unresolved issues, This resolution shall be" effective upon adoptien.
This the 27th day of May, 1986.
M.A A m Earl D. Thompson l
Chatraen
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masel F. soone clerk to the Board
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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CAROLINA POWER AND LIGHT
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COMPANY AND NORTH CAROLINA
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Docket No.
50-400 OL EASTERN MUNICIPAL POWER
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AGENCY
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(Shearon Ifarris Nuclear Power Plant, )
Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO MOTION OF COALITION FOR ALTERNATIVES TO SilEARON HARRIS AND WELLS EDDLEMAN FOR A STAY OF TIIE IMMEDIATE EFFECTIVENESS OF Tile FINAL LICENSING BOARD" in the above-captioned proceeding have been served on the following by deposit in the United States mail first class, or (*) through deposit in the Nuclear Regulatory Coamission's internal mail system, this 25th day of June,1986:
James L. Kelley, Chairman
- Richard D. Wilson, M.D.
Administrative Judge 729 Hunter Street Atomic Safety and Licensing Board Apex, NC 27502 U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Glenn O. Bright
- Travis Payne, Esq.
Administrative Judge 723 W. Johnson Street Atomic Safety and Licensing Board P.O. Box 12643 U.S. Nuclear Regulatory Commission Raleigh, NC 27605 Washington, DC 20555 Dr. James H. Carpenter
- Dr. Linda Little Administrative Judge Governor's Waste Management Building Atomic Safety and Licensing Board 513 Albermarle Building U.S. Nuclear Regulatory Commission 325 North Salisbury Street Washington, DC 20555 Raleigh, NC 27611 Daniel F. Read John Runkle, Esq. Executive Coordinator CHANGE Conservation Counsel of North Carolina P.O. Box 2151 307 Granville Rd.
Raleigh, NC 27602 Chapel Hill, NC 27514 Steven Rochlis, Esq.
H. Joseph Flynn, Esq.
Regional Counsel Associate General Counsel FEMA Office of General Counsel 1371 Peachtree Street, N.E.
FEMA Atlanta, GA 30309 500 C Street, S.W. Rm 840 Washington, DC 20472 Atomic Safety and Licensing Appeal Bradley W. Jones, Esq.
Board Panel
- Regional Counsel, USNRC, Region II U.S. Nuclear Regulatory Commission 101 Marietta St., N.W. Suite 2900 Washington, DC 20555 Atlanta, GA 30323 Robert P. Gruber Executive Director Thomas A. Baxter, Esq.
Public Staff - NCUC John H. O'Neill, Jr., Esq.
P.O. Box 991 Shaw, Pittman, Potts & Trowbridge Raleigh, NC 27602 1800 M Street, N.W.
Washington, DC 20036 Wells Eddleman Atomic Safety and Licensing Board 812 Yancy Street Panel
- Durham, NC 27701 U.S. Nuclear Regulatory Commission Washington, DC 20555 Richard E. Jones, Esq.
II. A. Cole, Jr., Esq.
Vice President and Senior Counsel Special Deputy Attorney General Carolina Power & Light Company P.O. Box 629 411 Fayetteville Street Mall Raleigh, NC 27601 Raleigh, NC 27602 Steven P. Katz 604 W. Chapel 11111 Street Durham, N.C.
llih 9 ei Charles A. Barth b{Wl Counsel for NRC Staff
.