ML20212M804
| ML20212M804 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 03/10/1987 |
| From: | Grimsley D NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | Murphy S NUCLEAR INFORMATION & RESOURCE SERVICE |
| Shared Package | |
| ML20212M806 | List: |
| References | |
| FOIA-87-19 NUDOCS 8703120205 | |
| Download: ML20212M804 (7) | |
Text
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U.S. NUCLEAR REGULATORY COMMISSION mac poia neousst mweanese f.
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a Fod /J pasconsptvet i RESPONSE TO FREEDOM OF "*^'
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INFORMATION ACT (FOIA) REQUEST +'
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[ PART 1.-RECOnOS KELEMD OR NOT LOCATf D ISee checked bonest No agency records subsect to the request have been located.
No addetonal agency recorde subsect to the request have been located.
Agency recorde subrect to the request that are identWed in Appendia are seready evadable for pubhc inspection and copytog in the NRC Puble Document Roun, 1717 H Street, N W., Woohington, DC.
Agency recorde subrect to the request that are identifed in Appendie __8 are beeng made evadable for pubhc inspection and copying in the NRC PutWic Document Roorn,1717 H Street, N W., WuNngton, DC. In a folder under thee FOIA number and requester name.
The renproprotary versen of the proposalia) that you agreed to accept in a telephone conversaten swth a member of my staff is now bemo made eveeable for pubhc inspecten end cow et the NRC Pubhc Document Room,1717 H Street, N W , WesNngton, DC e in a folder under tNo FOIA number and requester name, inclosed .e information on how you may obtain access to and the charges for copyeg records placed in the NRC Public Document Room.1717 H Street, N W., Weehegion, DC.
Agency recorde subsect to the request are enclosed Any apphcable charge for copies of the recorde provided and payment procedures are noted in the commenta section.
Recorde subrect to the request have been referred to another Fedesel egencytoel for revow and direct toeponse to you.
, in vow of NRC's response to tNo request, no further ocean is boeg taken on oppeal letter dated PART ll A-INFORMATION WITHHELD FROM PUBLIC DISCLOSURE f 1
Certac information nn the requested recorde is bemg withheid from public declosure pursuant to the FotA esemptene described in and for the reesono stated in Part fl. esc.
tione S. C. end D. Any released portene of the documente for wNch on#y part of the record is beme withheld are being made evadeble for putdie inepecten and copying in l the NRC Pubhc Document Room,1717 H $1reet, N W WasNngton, DC, in a folder under tNo FotA number and requester name.
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MIEEDOM OF INFORMATION ACT RESPONSE F0lO NUM8t]lSi Mf * / h Daft-PART QS- APPLICAalt FOIA ENEMPTIONS Recorde es bject to the request that are desenbod in the enclosed Append ces _h _ are being withheld in their entirety or in part under FOIA Esemptione end for the roseons set forth below pursuant to 5 U.S.C. 552tb) and 10 CFR 9 Sle) of NRC Regulatione.
- 1. The wthheld informaten is property clawted pursuant to taecutive Order 12358 ttxtMPTON 11
- 2. The wthheld informaten relates soiety to the internal personnel rules and procedures of NRC. ItXtMPTON 2)
- 2. The withheld informaton le specif caily emernpted l'om putdic declosure by statute ind6C3ted (tXtMPT@N 3)
Section 141146 of the Atome Energy Act which prohitute the dectaeure of Reetncted Data-or Formerfy Restricted Data 142 U.S C. 21612186L Secten 147 of the Atomic Energy Act whch prohituts the est.losure of Unclasswfed Safeguards Informaten 142 U S C. 2167L
- 4. The wthheld informaten a a trade secret et commercial ist fmancet eformaton that is bewig withheld for the reason (s) inecated. ItxtMPTION di The 6nformaten le conensced to to confidential buemess fotopretaryl Information.
The information is conesdered es be propretary informaten pursuant to 10 CFR 2 790tdH11.
The information was outwnstted and rue ved m confusence from a foregn source pursuent to 10 CFR 2 790tdH2L
- 6. The withheid informaten consets of intenegeacv or entraegency recorde that are not evedable through escovery durmg litigsten Deciosure of predecisional informaten would tend to inhetat the open sad frank eachange of useas essentel to the deliberative process Where records are withheld in their entwety, the facte are mentncetdy intertwned with the predecessonal eformeten. There eieo are no reeegnefdv esgregeble factual portene because the reieses of the facts would permet an indrect triquiry into tne predeceenal protees of the egency, itAtMPilON li
- 6. The wthheld informaton is esen,ted from ,sublic decicoure because its esclosure would result in a cleady unweerented invesen of perseast pervecy itxtMPTION 6)
- 7. The wthheld informaten conente of mvestigatory recordo compeed for le* enforcement purposes and is temg withheld for the reasontel inecated. ItxtMPfl0N 7p Deulosure would interfere enh en enforcement proceedmg tocause it could reveel the scope, dwocten, and focue of enforcement eHorts and thus could posetwy allow them to take acten to shield potential wrongdomg or a violation of NRC requwemente from investgators (ExtMPTION 71 AH Doctosure would senetitute en uneensated invnen of personal prNacy itxtMPTCN 7tCH The informaten conents of neawe of indariduals and othee informaten the esciosure of which would re,,as identeties of conodontel sov,ces itxtM* TON 7100 PART ff C-DENylNO Of flCIALS Purewnt to 10 Cf M 9 9 and toe 9 tlof the U S Nucieer Requistory Commesen regulatene. se has teen determeed that the eformaten withheid e esempt from producten er eulosu e, r and that he producten er esclueure e cer*ary to be putdie inte'est The persone roeponsibia for the denial are those offi(sale wtontifed telow as denyeg eMoele and the Detector, Deveson of lilulee and Records. Orfice of Admmetration for any densate that may be appeated to the Enocueve Director for Operatene isoot 6dNylNG Of flCIAL Tif Li,0f fict Atcom0$ O(Natu APPtLLAf 6 Of fiCIAL eL
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I PART _Il D- APPt AL__ftJOHtt l The densel by sech denying officialidentefod in Peri ll.C may be appealed to the Appettate Officielidentified in that section Any such appeal mur be M i weitang end must be made methan 3 deve of tec of this fesponse. Appeate muel be addretted se appropriate to the Isecutive Detector for Operatior e of to i
of the Commenon.U S Pfucteer ulatory Commiscon, Washington, OC 2rJ%6, and should cleerty etsto on the envelope end 6n tho letter the that SecretaryAppeel R le en from en truens FotA Oecieinn.
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1 April 22, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE DIRECTOR, OFFICE OF NUCLEAR REACTOR REGULATION In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY ),
and NORTH CAROLINA EASTERN ) Docket No. 50-400 MUNICIPAL POWER AGENCY ) (10 C.F.R. $ 2.206)
)
(Shearon Harris Nuclear Power )
Plant) )
RESPONSE BY CAROLINA POWER & LIGHT COMPANY AND NORTH CAROLINA EASTERN MUNICIPAL POWER AGENCY TO WELLS EDDLEMAN'S REQUEST FOR HEARING ON EMERGENCY PREPAREDNESS EXERCISE EXEMPTION REQUEST
- 1. Introduction Carolina Power & Light Company ("CP&L") and North Carolina
\
Eastern Municipal Power Agency are the holders of Construction Permit No. CPPR-158 for, and applicants for a license to oper-ate, the Shearon Harris Nuclear Power Plant ("SHNPP" or
" Harris Plant"). By letter of March 4, 1986 (NLS-86-053) to Mr. Harold R. Denton, Director, Office of Nuclear Reactor Reg-ulation, CP&L requested an exemption from the requirement, in section IV.F.1 of Appendix E to 10 C.F.R. Part 50, to perform a full-participation emergency exercise "within 1 year before the
, issuance of the first operating license for full power and prior to operation above 5% of rated power..." for the SHNPP.1/
1/ The att:achment to the March 4, 1986 CP&L letter is cited fiereaf ter as the " Request".
YNSh N f'r
D In a letter to Mr. Denton dated April 3, 1986, Mr. Wells Eddleman of Durham, North Carolina, comments on the Request, and petitions to intervene "in this matter."2/ CP&L and North Carolina Eastern Municipal Power Agency hereby reply to Mr.
Eddleman's letter. For the reasons set forth below, we contend that the Eddleman letter constitutes a request for action under 10 C.F.R. $ 2.206, and that under standards applicable to such petitions it should be denied.3/ Further, the Staff's conside-ration of the exemption request should not be delayed by Mr.
Eddleman's letter, which may be considered as comment on the request. We also respond below to those comments.
II. The Eddleman Letter Constitutes a Request Under 10 C.F.R. I 2.206 to Initiate a Proceeding Mr. Eddleman argues that granting the exemption request would violate his and the public's right to a hearing under the Atomic Energy Act, and states that "[s]ince this exemption re-quest is outside the licensing hearing procedures of the NRC, I hereby petition to intervene in this matter. . .". Petition at 2/ Mr. Eddleman's letter is cited hereafter as the " Peti-tion".
3/ Although licensees are not required to respond to section 2.206 petitions in the absence of a formal request pursuant to 10 C.F.R. I 50.54(f) or section 182 of the Atomic Energy Act, licensees may respond to such petitions at their own volition.
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
DD-84-16, 20 N.R.C. 161, 163 n.1 (1984).
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- 1. Fairly read, Mr.'Eddleman's letter seeks the initiation of a proceeding to address his opposition to the subject exemption request. While Mr. Eddleman does not cite 10 C.F.R. I 2.206,.
4 this regulation provides the only formal mechanism for consid-
! ering the Eddleman letter.4/
Mr. Eddleman is correct that the exemption request is before the Staff and is not an issue in the ongoing adjudica-tory proceeding on the SHNPP operating license application.5/
The function of deciding exemption requests from 10 C.F.R. Part 50 regulations has been delegated by the Commission to the Director of Nuclear Reactor Regulation, and not to adjudicatory boards. Southern California Edision Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-77-35, 5 N.R.C. 1290
- (1977); see also 50 Fed. Reg. 50764 (Dec. 12, 1985) ("Traditi-onally, this authority [to grant exemptions from the.regula-tions in Part 50] has been delegated by the Commission to its
- 4/ The Staff could, as well, simply elect to treat the letter as comment on the exemption request since, as discussed below, there clearly is~no right to a hearing on the request.
i 5/ Mr. Eddleman is an intervenor pro se in that proceeding. !
The presiding Atomic Safety and Licensing Board has issued
~
, three partial initial decisions. See Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-85-5, 21 N.R.C.
j 410 (1985); LBP-85-28, 22 N.R.C. 232 (1985); LBP-85-49, 22 J N.R.C. 899 (1985). Each of these decisions has been appealed to the Atomic Safety and Licensing Appeal Board. The Licensing
, Board expects to issue a final initial decision in the near fu-I ture. Order (Concerning Emergency Planning Exercise Conten-l tions), dated March 19, 1986.
i J
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staff which determines whether exemptions are needed and justi-fled."). Further, as the Commission has stated:
At an operating license hearing, a board passes only on issues put in contest. The.
decision as to all other matters which need to be addressed prior to issuance of the license is the responsibility of the Com-mission and Staff outside of the adjudica-tory conter.t.
Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3 ), CLI-86-1, 23 N.R.C. 1, 7 n.5 (1986).6/ Since the sub-stance of the exemption request is not a contested issue, the 4 operating license adjudicatory proceeding is not the proper forum in which to consider the exemption request.7/
T 5
6/ Boards may only examine issues not placed into controversy by the parties where it is determined that a serious safety, environmental, or common defense and security " matter exists.
See 10 C.F.R. $2.760a; Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24, 14 N.R.C. 614, 615 (1981); Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2), CLI-86-7, 23 N.R.C.
, slip op. at 3 n.1 (April 18, 1986).
7/ The Commission, as a matter of discretion, has referred exemption requests to licensing boards. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
CLI-84-8, 19 N.R.C. 1154 (1984); Carolina Power & Light Co.
(Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4),
CLI-74-9, 7 A.E.C. 197, 198 (1974). In those cases, however, the exemption request went to the heart of matters already before the licensing board. See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
LBP-85-33, 22 N.R.C. 442, 446 (1985). (The NRC Staff urged this distinction upon the Perry licensing board. See, in Dock-et Nos. 50-440, 441, "NRC Response in Opposition to OCRE Motion i to Reopen the Record and Admit Contention on Partial Exemption to Appendix J" at 15 n.11 (July 24, 1985).) Here, the basis (Continued next page)
. _ l
. i 1
Ihdenyingamotiontoreopentherecordinanoperating' ~
m s license proceeding, prior to license issuance, the Appeal Board l
) observed: -
I A party'that wishes to raise health,' safety or environmental issues but.is unable to do so in a=pending adjudication may file a re-quest.with the Director of Nuclear Reactor Regulation under 10.C.F.R. 5 2.206 asking the Director to institute a proceeding to address those issues.
- Union Electric Co. (Callaway Plant, Unit 1), ALAB-750, i
!' 18 N.R.C. 1205, 1217 n.39 (1983), as modified, ALAB-750A, i
18 N.R.C.'1218 (1983). Thus, while he does not cite r
i 10 C.F.R. $ 2.206, Mr. Eddleman has lodged his Petition with the appropriate forum within the NRC.8/
(Continued) t for the exemptien request from this schedular requirement, and the standards of 10 C.F.R. $ 50.12(a) by which it will be judged, are not related to any contested issue. (Contentions alleging substantive planning deficiencies from the results of
- the May 17-18, 1985 full-participation exercise for the SHNPP have been decided in applicants' favor. See Licensing Board i Order of March 19, 1986, supra; LBP-85-49, supra, 22 N.R.C. at j 908-14. The admission of some exercise contentions in the
! operating license proceeding does not place in contest (i.e.,
j give the Licensing Board jurisdiction over) other aspects of i the exercise or other exercise-related NRC requirements. These i remain for Staff findings on the license application.) Indeed,
! the fact that the off-site plans (with the exception of one contention still pending) and the 1985 exercise withstood the !
j close scrutiny of the Licensing Board supports CP&L's assertion !
that the adequate state of off-site emergency preparedness will be maintained until the 1987 exercise, t
8/ The fact that Mr. Eddleman's request to institute a pro-caeding does not cite 10 C.F.R. I 2.206 is not significant.
- (Continued next page) i
- i I
i
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s I
III. Standards for Deciding Whether a Show Cause Proceeding Should be Initiated Section 2.206 of the Commission's regulations provides a mechanism whereby members of the public may request initiation
. of an enforcement action to modify, suspend, or revoke-a license, or for such other action as may be proper. It also j vests authority in the director of the appropriate NRC office to decide whether to institute an enforcement action by the is-suance of a show cause order. The only criterion set forth in the rule itself for judging the sufficiency of'a petition is the requirement that "[t]he requests shall specify the action requested and set forth the facts that constitute the basis for the request." See 10 C.F.R. I 2.206(a).
The apparent reason for the absence of a more specific F standard in the regulation is that the decision to institute an enforcement action is not an adjudicative one, but rather is a
, matter of " prosecutorial" discretion. See Consolidated Edison Company of New York, Inc. (Indian Point Units 1, 2, and 3),
(Continued)
Indeed, the Staff has treated under section 2.206 submissions which do not even request the initiation of a proceeding. See, e.g., Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), DD-84-3, 19 N.R.C. 480, 481 n.1 (1984);
4 Boston Edison Co. (Pilgrim Nuclear Station), DD-82-4, l 15 N.R.C. 1359, 1360 n.4 (1982).
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CLI-75-8, 2 N.R.C. 173, 175 (1975). Nevertheless, the Commis-sion has in_ previous decisions provided guidance delimiting the exercise of this discretion.
In Indian Point, supra, the Commission affirmed a Direc-tor's decision denying a 2.206 petition. In so doing, the Com-mission stated that "[the Director) correctly understood that a-show cause order would have been required had he reached the conclusion that substantial health or safety issues had been raised." The Commission also stated that "...a mere dispute over factual issues does not suffice" as a basis for issuance of such an order. Indian Point, supra, CLI-75-8, 2 N.R.C. at 176 (1975).9/ This standard has been acknowledged in dicta by the D.C. and Seventh Circuits. Lorion v. NRC, 712 F.2d 1472.,
1475 (D.C. Cir. 1983), rev'd on other grounds sub nom., Florida Power & Light Co. v. Lorion, 105 S. Ct. 1598 (1985), on remand sub nom., Lorion v. NRC, No. 82-1132, slip op. at 6-7 (D.C.
Cir. March 18, 1986); Rockford League of Women Vo*ers v. NRC, 674 F.2d 1218, 1222 (7th Cir. 1982).
The Commission has reiterated the " substantial health and safety issues" standard in Northern Indiana Public Service Co.
9/ The directors have followed the " substantial health and safety issues" test. See, e.g., Philadelphia Electric Co.
(Limerick Generating Station, Units 1 and 2), DD-85-11, 22 N.R.C. 149, 152 (1985); Washington Public Power Supply System (WPPSS Nuclear Project No. 2), DD-84-7, 19 N.R.C. 899, 923 (1984).
(Bailly Generating Station, Nuclear-1), CLI-78-7, 7 N.R.C. 429, 433 (1978), aff'd, Porter County Chapter v. liRC, 606 F.2d 1363 (D.C. Cir. 1979). In that case, the Commission also rejected a claim that the Director erred in failing to permit petitioner to comment on, respond to, or cross-examine the views of the NRC Staff:
[The Director] is not required to accord presumptive validity to every assertion of fact, irrespective of its degree of sub-stantiation, or to convene an adjudicatory proceeding in order to determine whether an adjudicatory proceeding is warranted.
Rather, his role at this preliminary stage is to obtain and assess the information he believes necessary to make that determina-
, tion. Provided he does not abuse his dis-cretion, he is free to rely on a variety of sources of information, including staff analyses of generic issues, documents issued by other agencies, and the comments i-of licensees on the factual allegations.
Id. at 432-33.
IV. Issuance of a Show Cause Order is Not Warranted A threshold basis for denying Mr. Eddleman's petition is that he has no cognizable interest in the exemption request.10/
Mr. Eddleman resides and works well outside the plume exposure pathway EPZ for the Harris Plant.11/ See Petition at 1. The a
10/ Mr. Eddleman's assertions that hs represents the public are without foundation. Mr. Eddleman speaks only for himself in his petition.
11/ The vague assertion that Mr. Eddleman " spends time" in the EPZ in connection with his " consulting work" is unsupported.
(Continued next page)
requirement from which an exemption is sought involves the scheduling of a full-participation exercise to test emergency response measures principally for the plume exposure pathway EPZ. The fact that Mr. Eddleman qualified as an intervenor in the operating license proceeding is.not determinative here.12/
There is no reasonable basis upon which to conclude that some-one in Durham, North Carolina, thirty miles from the Harris Plant, has a health and safety interest under the At'omic Energy Act which could be affected if the next exercise for the plume EPZ takes place in February, 1987 instead of in 1986.
If the Staff nevertheless entertains the Petition, it should conclude that the initiation of a proceeding to consider Mr. Eddleman's comments is unwarranted. The Petition clearly does not raise substantial health and safety issues, with req-uisite factual basis. The Petition also reflects an erroneous interpretation of the law.
Mr. Eddleman appears to argue that section 189 of the Atomic Energy Act confers a right to a hearing on his (Continued)
In any event, an occasional visit to the EPZ is insufficient to establish interest in the exemption request.
12/ The finding, pursuant to 10 C.F.R. $ 2.714, that Mr.
Eddleman has an interest which could be affected by the grant of the operating license application, does not establish his interest in each and every regulatory action the NRC might take i with respect to the SHNPP.
petition.13/ Petition at 1. He is incorrect. The Atomic Energy Act contains no provision for a hearing when no proceed-ing has been initiated under section 189a. Consideration of a section 2.206 petition in the first instance is not in itself a.
proceeding "for the granting, suspending, revoking or amending of any license...". 42 U.S.C. $ 2239(a). The Directors have repeatedly held that there is no right to a hearing on a sec-tion 2.206 petition, which does not involve a proceeding under section 189 of the Atomic Energy Act. See, e.g., Commonwealth Edison Co. (Shipment of Irradiated Nuclear Fuel from West Val-ley, N.Y.), DD-83-14, 18 N.R.C. 726, 728 n.1 (1983); Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 and 2),
DD-81-12, 14 N.R.C. 265, 266 n.2 (1991); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), DD-79-22, 10 N.R.C. 728, 731 (1979). See also Illinois v. NRC, 591 F.2d 12, 14 (7th Cir. 1979).
Mr. Eddleman also asserts "that the NRC has no 'right to grant this exemption on any economic ground since the Atomic Energy Act under which the NRC operates requires NRC to put 13/ Mr. Eddleman sought and obtained from the NRC his
! section 189 hearing on the proceeding to consider issuing an j operating license. The exemption request clearly does not en-l tail a proceeding to issue or modify a rule or regulation. See Petition at 1. The Commission regulation pursuant to which the exemption request was filed does not provide an independent op-portunity for hearing on such a request. See 10 C.F.R. 5 50.12(a).
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. _ . . - _ - . = - _ _ _ - . _ . . . . . _ . . . _ ,
health and safety first, and no authorization is in that act for exemptions on grounds of cost". Petition at 1. First, the finding of "special circumstances" required to grant an exemp-tion may.be based upon any one of the factors enumerated in 10 C.F.R. 5 50.12(a)(2)(i)-(v). The instant exemption request addresses three of those (ii, iii and v), as well as factor vi.
Second, Mr. Eddleman simply is challenging 10 C.F.R. 5 50.12(a)(2)(iii), which provides for consideration of costs.
The Director is not authorized to pass upon the validity of Commission regulations. In any case, when it adopted the cur-rent version of section 50.12, the Commission responded to a
, similar statutory argument advanced by the Union of Concerned Scientists:
A The Commission believes that judicial prec-edent and long-standing Commission practice confirm that, within the confines of carry-ing out its paramount responsibility to protect public health and safety, it may consider economic factors in its decision making. The Commission's regulatory man-date is couched in terms of " adequate pro-tection of the public health and safety,"
42 U.S.C. 2232. The courts have held that 4
absolute safety or zero risk is not re-quired, and have interpreted the Atomic En-ergy Act to confer considerable discretion on the Commission to determine what level of protection is adequate. Consequently, the basic standard is in'terently broad and general, rather than precise. As long as a Commission decision adheres to the primary
" adequate protection" standard, the deci-sion can legitimately take into account cost considerations.
l ,
1 i
1 1
l 50 Fed. Reg. 50764, 50767 (Dec. 12, 1985).
l Mr. Eddleman's other comments are no more substantial.
For. example, he advances the opinion that the need for the.ex-emption is attributable to "too optimistic scheduling" by CP&L.
Petition at 1. While the plant schedule has changed since the May, 1985 full-participation exercise, this experience is not unique to the Harris Plant. In addition, it was necessary for CP&L to_ schedule the exercise sufficiently far in advance of the anticipated licensing date to accommodate hearings and min-imize unnecessary licensing delays. Request at 7. Hindsight shows that CP&L was prudent in anticipating that the exercise would be contested in the operating license proceeding. Fol-lowing the issuance of FEMA's exercise report, and four months j after the exercise, Mr. Eddleman filed twelve proposed conten-~
tions based on the exercise. Six months after the exercise, two of those were admitted by the Licensing Board for discovery
, and adjudication. While CP&L's motions for summary disposi-tion, supported by the Staff and FEMA, were recently granted by the Licensing Board, that action took place ten months after the exercise. See Licensing Board Order (Concerning Emergency Planning Exercise Contentions), March 19, 1986. In spite of CP&L's best efforts to expedite the litigation at every stage, the original licensing schedule would have been jeopardized had any of the contentions gone to hearing.
12-r--- nm-r-m-- ,,,e,-v.r- sng, ,w-r- , , -we,--,,--,.,-,,-ne,,-- .--------n-. - --- .
, - - - , , - - - - ,,~r---e--,, - - - v-----,- ,--,--e_--, - - - , , , _
Mr. Eddleman questions CP&L's assertion that the requested exemption will not pose an undue risk 14/ to the public health and safety. See 10 C.F.R. $ 50.12(a)(1); Petition at 2; Re -
quest at 1. In arguing that.there is some risk invcived, Mr.
Eddleman implies that any risk is unacceptable. This position
- miscontruet'.the " undue risk" standard. In adopting this provi-sion, the Commission stated that the Staff will evaluate an ex-emption request to determine "whether adequate protection of the public health and safety would be maintained if the exemp-tion were granted." 50 Fed. Reg. 50764, 50768 (Dec. 12, 1985).
- This safety standard represents the statu-tory requirements of section 182 of the Atomic Energy Act for " adequate protection to the health and safety of the public."
42 U.S.C. 2232.
Id. To meet this standard, CP&L cited FEMA's conclusion from the May, 1985 SHNPP exercise that "the state and local emergen-cy plans are adequate and capable of being implemented and the exercise demonstrated that off-site preparedness is ade-quate...".15/ CP&L also identified the extensive activities 14/ Mr. Eddleman refers incorrectly to the word " hazard,"
, which does not appear in 10 C.F.R. $ 50.12(a)(1).
15/ Only off-site preparedness should be at issue here. CP&L
- has scheduled an annual exercise, which will test the on-site I- plan pursuant to Appendix E, i IV.F.2, for June 14, 1986 (i.e.,
prior to licensing). Request at 5; letter NLS-86-115, R. A.
I Watson (CP&L) to J. Nelson Grace (NRC), April 2, 1986. Never-theless, Mr. Eddleman refers to three on-site inspector follow-up items (and mischaracterizes them as " improvement items"). Petition at 2; Request at 2.
\
n-----. - - - - -----,.- -.- ,. ,,- _ ,- .
4 which have been~and will be undertaken to maintain the state of emergency preparedness until the next exercise, which would be 4
conducted pursuant to.5 IV.F.3 of Appendix E. 16/ Request at 2-5.
Mr. Eddleman advances two alleged risks associated with 4
the exemption request. First, he asserts that there is a risk because FEMA has.not formally evaluated the corrective actions proposed for deficiencies revealed by the May, 1985' exercise.
Petition at 2. Mr. Eddleman's comments would leave the impres-sion that the 1985 exercise demonstrated the need for a remedi-4 al exercise (see Appendix E, 5 IV.F.4) prior to licensing the Harris Plant. Mr. Eddleman here simply ignores the fact that j the exercise revealed no " fundamental flaw" in off-site emer-gency preparedness, and that FEMA made the overall " reasonable assurance" finding called for by 10 C.F.R. 5 50.47(a)(1) and (2). If the plant were ready and the Licensing Board's final initial decision were issued, the SHNPP could be licensed now 4 on the basis of this finding. No Category A deficiencies were identified during the exercise. As to the minor, or Category i B, deficiencies identified, FEMA points out that they lj5s / The period for which the " undue risk" standard must be -
applied is the limited one from when the SHNPP exceeds five percent of rated power until the Febru'ary, 1987 exercise, which will include full-participation by the counties, and support !
from the State of North Carolina.
- 14-
- - ~ - p ,eng-,-r-, ->---,-~--~~,..en.._v,,..n,. n.- , . - - -----~-,--..,,.w--,,,r-,,n----r-,---,,--~~m- --, - - _ - - - , - . . . , , - . - . . . - - , - - , , - -
-. - . --- . = . . . . _ - . - ._.
did not detract ~from the overall capability
-demonstrated by.the State of North. Carolina and Wake, Chatham, Harnett, and Lee Counties to protect the health and safety of the public in the event of a ra-diological emergency. *** [ FEMA Region
, IV) will assure completion.by the State of the necessary corrective actions.17/ '
Mr. Eddleman points to rus requirement that FEMA publish a "for-i mal" evaluation of corrective actions where the deficiencies to be addressed are minor.18/
It is also significant that Mr. Eddleman points to no rea-son to suspect that the state of emergency preparedness will deteriorate prior to the next off-site exercise. In this re-gard, it is important to recognize that because of the number of nuclear power plants which affect it, the State of North Carolina and its involved agencies are very experienced in nuclear emergency response, and have exercised their plans and t
j[L/ Memorandum for Edward L. Jordan (NRC), from Richard W.
1 Krimm (FEMA), August 7, 1985, Interim Findings on Offsite Ra-diological Emergency Response (RER) Plans and Preparedness for the Shearon Harris Nuclear Power Station, attached to Board No-tification No.85-078 (Aug. 21, 1985).
18/ Mr. Eddleman asserts that in a telephone conference on i February 11, 1986, " FEMA officials . . . stated they could not evaluate the implementation of proposed corrective actions until the next full-participation exercise (5-87)." Petition i
at 1. This may be true as to the actual implementation and j verification of effectiveness, but FEMA is well aware of the i corrective actions being undertaken. The State submitted to
-FEMA Region IV a written description of those actions and a schedule for completion, on November 26, 1985. FEMA has not questioned the sufficiency of those proposals, and is in commu-nication with State officials on the status of implementation.
4 i
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- _ - - _ - - - . . , - . . _ _ _ _ . . - _ - , ~ . , _ . - _ _ _ _ , . _ . _ _ _ _ __ ____ _ . , . - - . _ _ _ _ - - _ _ - , , _ _ _ - . ~ . - . _
. - - . . =~ -. . . - .
procedures repeatedly.19/
-Second, Mr. Eddleman claims there is a risk because some of the activities CP&L cites which maintain the already ade-quate state of off-site emergency preparedness are not complet-ed at this time. Petition at 2. Mr. Eddleman simply misunder-i stands the requirements for off-site emergency preparedness.
The. plans themselves have been approved in FEMA's interim find-ings, and the exercise was a success.2_0/ The NRC makes pre-dictive findings on the adequacy of off-site emergency pre-paredness, which does not become a requirement until a reactor exceeds five percent of rated power. See 10 C.F.R. 5 50.47(d);
50 Fed. Reg. 19323 (1985); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 N.R.C. 681, 710 (1985); Pacific Gas and Electric Co. (Diablo Canyon Nuclear
. Power Plant, Units 1 and 2), ALAB-781, 17 N.R.C. 819, 834-35 (1984); Louisiana Power & Light Co. (Waterford Steam Electric i
Station, Unit 3 ), ALAB-732, 17 N.R.C. 1076, 1103 (1983). Thus, the fact that training is in progress and exercises are sched-uled, as will be the case throughout the operating life of the SHNPP according to approved plans, does not represent a risk.21/
i 19/ For example, since the May, 1985 SHNPP exercise, the State ,
i has participated in exercises for the McGuire, Brunswick and l Catawba plants, i
i 20/ See n. 17, supra.
21/ Furthermore, while the matter is not relevant to the ex-eiEption request, CP&L rejects Mr. Eddleman's reported hearsay 3
, (Continued next page)
~
4 V. Conclusion t-For all of the foregoing reasons, the Petition.should be denied. It clearly does not raise substantial health and safe-Mr.
~
l ty issues warranting the initiation of a proceeding.
Eddleman has not set forth any facts which show that the exemp -
I'
- tion request does not meet the requirements of 10 C.F.R.
l 50.12(a), and his comments can be categorized as simple dis-agreement with CP&L regarding the appropriateness of the exemp-I tion. See Limerick, supra, DD-85-11, 22 N.R.C. at 153-54 (1985).
- Neither should the mere lodging of the Petition delay 2
timely Staff action on the Request. If the Staff cannot. issue i
e a formal section 2.206 decision promptly, then prior to such a
. decision it should nevertheless proceed to act on the exemption request and consider the Eddleman letter as comment.22/ Mr.
(Continued) '
I that CP&L told Wake County teachers they would never have to '
implement the emergency plan. See Petition at 2. The trainers j advise the teachers that it is unlikely the plan will have to
- be implemented, but emphasize the importance of the training so j teachers will know what to do if implementation occurs.
t
- 22/ "The lead time required to plan for a full-scale exercise
- and the need to commit the resources of CP&L, FEMA, NRC, and numerous state and local agencies make it imperative that this issue be resolved expeditiously." Request transmittal letter, p.2. While we understand that an exemption from this regula-tion is unnecessary in the absence of a full power license, we ask the Staff to document the results of its review of this matter prior to licensing -- just as it has done in safety evaluation reports which document whether or not the applica-tion is acceptable for licensing.
l
- }
1.
Eddleman has attempted no showing that he is entitled to imme-diately effective, temporary relief. See 10 C.F.R. I 2.202(f).
Respectfully submitted, Thomas A. Baxter, P.C.
Delissa A. Ridgway SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1090 Richard E. Jones Dale E. Hollar CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-8161 Counsel for Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency
s.. ,
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Response by Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency to Wells Eddleman's Request for Hearing on Emergency Preparedness Exercise Exemption Request" were served by deposit in the United States mail, first class, post-age prepaid, this 22nd day of April, 1986, to the following:
i Mr. Harold R. Denton, Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Wells Eddleman 812 Yancey Street Durham, North Carolina 27701 1.
i L A.M Thomas A. Baxter, P.C.
f 4
i f
t I
___ - - . _ . . , . . - , . , . _ - _ , - _ , _ , . . , _ , _ _ , . _ _ _ . . , _ _ _ , . _ .._.,,___.____.._,,__,__,,_,,,m..____ . . . , . _ _ . _ , , _ _ _ , _ _ , , . _ , - _ _ _ _ , _ - . . . . , . , _ .
F' ' . .
i SHAw, PITTMAN, PoTTs & TROWBRIDGE a pant %taswie or poortssioNA6 CommonAvioNs ISCO M STRECT, N. W.
WASHINGTON, D. C. 20036 YtttComita sacas saa- oce 6 eaa-pos c
Tkx so aeos eswawgaw wswi CAe6e"s awtAwa MEMORANDUM ,c2. .
THOMAS A. SAxTER, P C.
sacas saa-coo
SUBJECT:
Distribution of " Response by Carolina Power & Light Company and North Carolina Eastern Municipal Power.
Agency to Wells Eddleman's Request for Hearing on Emergency Preparedness Exercise Exemption Request" DATE: April 23, 1996 a
So that you can make any additional distribution that is appropriate, be advised that copies of the referenced document have been sent to the following:
By mail, April 22 Those listed on the Certificate of Service By messenger, April 23 Maryland National Bank Building Joseph Scinto Charles A. Barth Janice E. Moore Phillps Building Lester S. Rubenstein (c/o Buckley)
B. C. Buckley East West / West Towers Building 3 David B. Matthews Gerald E. Simonds FEMA, Washington, D.C.
Joseph Flynn By mail, April 23 FEMA, Region IV John Heard Steven Rochlis Region II J. 1 son Grace Bradle -Jones N.C. Division Emergency Management Joseph F. Myers m k. -
A//
UNITED STATES NUCLEAR RECT'LA TORY COMM ISSION REFORE THE COMMISSION In the Matter of )
)
CAPOLINA POWER E LICHT COMPANY )
and NORTH CAPOLINA EASTERN 1 Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
1 (Shesron Harris Nuclear Power Plant) )
ATTORNEY GENERAL'S NOTION PECARDING APPLICANTS' REOtfEST FOR EXEMPTION FROM PORTION OF 10 C.F.R. PART 50, APPENDIX E, $ IV. F. I NOW COMES North Carolina Attorney General Lacy H. Thornburg, pursuant to G.S. 55 62-20 and 114-2, having previously inte rvened in these licensing proceedings and recuents of this Commission an inquiry into the current feasibility of Applicant-CP&L's request for an exemption from a portion of the reauirements of 10 CFR Part 50. In support thereof, the Attorney General shows the following:
- 1. The request at issue was initiated by CP&L's letter of March 4, 1986 to Harold Denton, Director of the Office of Nuclear Reactor ReQulation, requesting an exemption from the requirement that a full-scale emeroency preparedness exercise (hereafter
" Full Participation Exercise" or "FPE*) be conducted *within one year before the issuance of the operating license for full power and prior to operation above 5% of rated power of the first reactor...* 10 CFR Part 50, App. E, 5 IV. F.1,
- 2. Based on a review of CPEL's filings and announcements with respect to this issue, the Attorney General acrees with the h a , - ~ , , -
mem e app.
-f r e. .
owemption l
matter raised by the ie must be Applicants that the *almp e a full-participation exerc s such requiarly request...(isi.... whether is Drior to the next set conducted for Shearon HarrCP&L, the State and counties have eesponse to Cash /r<foleman scheduled esercise, which 1987.* IAcolleants for February 28, 10-14 86, p. 8J cue.ptton nequest, f April 3, 1986,sdells Eddleman scief on a st; CP&L's 3
By letter to fr. henton o i g on the exemption reoue 22, 1986.
petitioned for a hear n filing of April response was contained in a 4, CP&L asked that the NRC
- 4. In a letter of June 10,198esemption request s then on i n of the staff suspend considerat o ght resum ption of active the Company sou July 10, 1986, in consideration theroof. 1986 the NRC Staff responded By filing of July 24, n petition for a hearing.
5 to the April 3 Eddlema opposition letter to t his commission from Eddleman
(* CASH *)
- 6. A July 31,1986lternatives to Shearon Marris exemption and the Coalition for iAn for a hearing on the 28, again pressed the petit o was flied on Auoust CP&L's response in opposition request:
ion ordered Mr. Eddleman 1986. es. air .
~ -.
1,3 3-i Eddleman add CASH were directed to address, inter al ta, whether there are any material issues of fact regarding whether the standards of 10 Crm 50.12 (a)(1)s(2) for granting an exemption have been met. CP&L was directed to respond thereto af ter which the NRC Staf f was to file its response which was addit ionally to advise the Commission of its views regarding whether the exemption request should be granted.
- 8. The referenced filin1s were made on October 6 by Eddleman/ CASH, October 14 by CPsL and October 17 by the NRC Statf.
- 9. Upon review of the snumerated filings and of numerous other relevant materials, the Attorney General submits the following observations:
!a) CP&L's March, 1986 request (for an exemption from the portion of 10 CFR Part 50, App. E, 5 IV.r.l. which renuired that en FPC be conducted within a year prior to issuance of the full power licensel was apparently premised upon the Company's perception that it would otherwise be ready for commercial or full power operation prior to the esercise scheduled for February 1987, from which it followed that granting of the esemption would avoid a " delay
- in full power licensing.
th) Both CP&L and the NRC Sta f f in their filings rely heavily on the f act that an FPE will be conducted in February 1987 to support their position that the exemption should be granted.
3 4
(c) It is now october 28 and CPEL has just received a license to load fuel and test at up to 54 capacity. ,_,j (d) Upon information and belief, the Attorrey Ceneral suhaits that a period of time of approntmately sia months is deemed to he reasonably required from the date of fuel load /
licensing to the date of readiness for full bg power operation. C kf (e) only four months remain from today untti February 27, 1987, date of the next scheduled a FPC.
1 (f) The possibility of CPEL being otherwise ready for full power operation prior to the February scheduled FPE would thus seem to be highly unlikely at this point; it follows that the premise upon which CP&L's March request for an exemption was made has been rendered moot by the passage of time and the concomitant delays in construction.
(g) If it is correct that CP&L will not be at the point of readiness for full-power operation by February, 1987, then the reauest for exemption from the *1 year prior
- requirement is condered moot since CP&L will have conducted the February FPE prior to the issuance of any operating license. This would seem to render the present inquiry into hearing richts, chaswc3 in circumstances, etc.
a futile exercise.
- 10. Upon in qu iry , information and belief, the Attorney General submits that of four previous instances (in 1985) in which waivers of the *one-year prior" provision of the rule were J
allowed by the NRC, the applicant Companies were in positions to secure a fu11-power license within substantially shorter periods i
4
.O'
.g.
of time from point of last energency exercise (i.e., 12 1/2 months (Waterford), 15 months (Syron), 12 3/4 months (Formi 2),
4 and 12 1/3 months (Limerick)). sy contrast, it has already been 17 sonths since CP&L's May 1985 exerc!*e and the Company has just secured a fuel load licenses further, reasonably accurate determination of any full power readiness date has apoarently not been possible, but the likelihood of it belpo prior to February 27, 1987 appears, in all candor, to be remote.
- 11. The Attorney General, having previously espoused his positinn that the NRC should comply with its regulations and require an FPE within one year prior to full power operation of the plant, states that nothing included in or omitted from this pleading modifies that position.
WHEREFORE, without regard to the legal or factus1 issue s bearing on the requirements of a hearing on the exemption request, the Attorney General urges that this Commissions l
- 1. Inoutre of its staff and of CPst as to the probability of reediness for full power operation by or before rebruary 27, 1987 l 2. Consider and determine that, unless OPEL i
demonstrates a reasonable possibility of being ready for a full operating license by February 2
I l
.g.
27, 1907, the reevest for an eneseption is smoot and should be dismissed.
This the 28th day of October, 1984 Elespectfully subm1tted, LACY If. TMORMpilRC Attorney General
, }., j,8e. * * '.~ i . 1 '
Jo Anne Sanford Special Deputy Attorney General f' f I' s . . . . .
.."y w - {
Karen E. Long
- Assistant Attorney General M
DMITED STATES NtICLEAR REGULATOPY CfMMISSION PEFORE THE COMNISSION 1
in the Mgtter of I .
CAROLINA POWER & LIGHT COMPANY ) .
and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY ) '
)
(Sheiron Harris Nuclear Power Plant) )
CERTIFICATE OF SERvfCE I hereby certify that copies of ATTORNEY GENFRAL'S MOTION REGARDING APPLICANTS' REQUEST FOR EXEMPTION in the above-captioned proceeding have been served on the following by deposit in the United States mail first class, or by Zap Nail this 29th day of October, 1986:
Docketing and Service Section H. Joseph Flynn, Esc.
Office of the Secretary Regional Counsel, FEMA U.S. Nuclear Regulatory Comm. 500 C Street, SW Room 840 1717 N St. N.W. WashinQton, D. C. 20472 Wa shi ng to,, n. C. 20555 Atomic Safety & Licensing ad.
Harold Denton, Director U.S. Nuclear Requ14 tory Comm.
Of fice of Nuclear Pequlation Washington, D. C. 20555 U.S. Nuclear Pequlatory Comm.
Washington, D. C. 20555 Richard E. Jones, Esc.
Carolina Power & Light Co.
Charles R. Barth, Esq. 411 Fayetteville St. Na11 Janice E. Moore, Eso. Rale ig h , N. C. 27602 Office of General Counsel U.S. Nuclear Regulator Comm. Robert P. Gruber W4 sh ing ton, D. C. 20555 Public Staf f - NCUC Post Office nou 991 Thomas A. Baxter, Esq. Raleigh, N. C. 27602 John H. O'Neill, Jr., Esq.
Shaw, Pittman, Potts & Trowbridge Wells Eddleman 2300 N Street, N.W. 812 Yancey Street Washington, D. C. 20037 Durham, N. C. 27701 Readley W. Jones, Esq. Robert Eating, Esc.
Regional Counsel, USNPC Region !! CASH 101 Marietta St., NW Suite 2900 P . O. now 1329 Atlanta, Georgia 30323 Chapel Mill, N. C. 27514
. _ =
~
Steven P. Katz, CASM 604 Chapel Mill St.
Durbsm, N.'C. 27701 Steven Roch11s, Esq.
Recional Counset, FEMA Daniel F. Dead 1371 Peachtree street NE CHANCE t Att enta, Georgia 30309 P.O. nou 2151 mateigh, N. C. 27602 R ichard D. Idil son, M.D. Travis Payne, Eso.
729 Nunter Street P. O. Sou 12643 Apeu, N. C. 27502 Raleigh, M. C. 27605 Dr. Linda Little John Runkle, Esa cow. Waste Management 91dg. Conservation Counsel of M.C.
325 North Salisbury St. 307 Cranville Road paleigh, N. C. 27611 Chapel Mill, N. C. 27514 This the 28th day of October, 1986.
, i l
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- #v c l
'Itaren E. Long
- Assistant Attorney General
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