ML20212R686
| ML20212R686 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 01/27/1987 |
| From: | Baxter T CAROLINA POWER & LIGHT CO., NORTH CAROLINA MUNICIPAL POWER AGENCIES, SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#187-2349 OL, NUDOCS 8702030044 | |
| Download: ML20212R686 (9) | |
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C0CKETED l
January 27, 1987'9*C
'87 J0129 A11 :16 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION pFi:
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
{
CAROLINA POWER & LIGHT COMPANY
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and NORTH CAROLINA EASTERN
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Docket No. 50-400 OL MUNICIPAL POWER AGENCY
)
)
(Shearon Harris Nuclear Power
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Plant)
)
I
(
LICENSEES' ANSWER TO CCNC/EDDLEMAN MOTION FOR A STAY On January 12, 1987, the Conservation Council of North Carolina (CCNC), Wells Eddleman, and the Coalition for Alterna-tives to Shearon Harris (CASH)1! filed with the Atomic Safety and Licensing Appeal Board a ".
. Motion to Stay Effectiveness of Licensing of Shearon Harris Nuclear Power Plant."
Licensees Carolina Power & Light Company and North Carolina Eastern Munici-pal Power Agency submit this answer in opposition to the motion.
1/
Since the Appeal Board denied CASH's petition for leave to intervene, CASH is not a proper party to seek a stay of any deci-sion in this operating license proceeding.
Appeal Board Memoran-dum and Order (unpublished) at 3-4 (July 11, 1986), review declined, Commission Order (unpublished) (Sept. 12, 1986).
Ac-cordingly, the motion is treated as filed by CCNC and Mr.
Eddleman.
If attorneys Epting and Rose are to represent CCNC and Mr. Eddleman, they should file written notices of appearance pur-suant to 10 C.F.R. 5 2.713(b).
8702030044 870127
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I.
Identification of the Relief Requested by the Movants The stay motion filed by CCNC and Mr. Eddleman is a model of confusion.
The movants are unclear and inconsistent in identi-fying the action or decision which they seek to have stayed.
The title of the motion indicates that a stay is sought of the
" effectiveness of licensing of Shearon Harris Nuclear Power Plant."2/
The opening paragraph requests a stay, pursuant to 10 C.F.R. 5 2.788, of the final Licensing and Appeals Board decision issued.
on December 31, 1986."3/ Motion at 1.
The last Appeal Board decision, ALAB-856, 24 N.R.C.
(Dec. 31, 1986), affirms the Partial Initial Decision on Safety Conten-tions, LBP-85-28, 22 N.R.C. 232 (1985).
In the concluding " Sum-mary," Movants seek a stay of the licensing of the Harris Plant "for an indefinite time," and in particular:
(1) until Movants have been provided with information showing the completion and results of the Staff's investigation of the allegations of the 2.206 l
Petition; l
j 2/
As authorized by the Commission's immediate effectiveness decision, CLI-87-1, 25 N.R.C.
(Jan. 9, 1987), the Director of Nuclear Reactor Regulation issued a full power license for the Harris Plant on January 12, 1987.
See 52 Fed. Reg. 1991 (Jan.
16, 1987).
3/
No Licensing Board decision issued on December 31, 1986.
The Final Licensing Board Decision issued on April 28, 1986.
LBP-86-11, 23 N.R.C.
294 (1986), aff'd, ALAB-852, 24 N.R.C.
l (Oct. 31, 1986).
The Appeal Board's affirming decision became l
final agency action on December 10, 1986.
See Memorandum for l
Board and Parties, from Secretary of the Commission, December 12, 1986.
In addition, the Appeal Board already has denied Mr.
Eddleman's motion to stay the Final Licensing Board Decision.
See Memorandum and Order (unpublished) (July ll, 1986), supra n.l. i
e (2) until Movants have been provided a reasonable opportunity to prepare and present their response thereto to the Appeal Board and/or the Commission; (3) until the conclusion of low power testing of the SHNPP; and (4) until after the Applicants have con-ducted a full scale exercise of the SHNPP ERP in compliance with the pro-visions of the rule requiring such an exercise within one year prior to operation of the SHNPP at greater than five percent of rated power.
Motion at 10.
II.
This Stay Motion is Not Authorized by Section 2.788 The purpose of seeking a stay of a decision is to preserve the status quo pending appeal.
Parties are authorized to apply for a stay of an Appeal Board decision or action pending the filing of and a decision on a petition for review to the Com-mission.
See 10 C.F.R. 5 2.788(a).
Nowhere in their stay re-quest do Movants indicate that they intend to petition the Com-mission for review of ALAB-856.A!
Indeed, the time in which'to do so expired on January 20, 1987.
See 10 C.F.R. 5 2.786(b)(1).
A stay of ALAB-856 for any reason other than to seek Commission review of that decision is not authorized by 10 i.
4/
On January 23, 1987, Licensees received a copy of a " Joint Petition for Review," filed by Mr. Eddleman, CASH and CCNC with the United States Court of Appeals for the Fourth Circuit.
The Petition seeks review of, inter alia, the four published Appeal i
l Board decisions in the operating license proceeding, plus ALAB-490, 8 N.R.C.
234 (1978) from the construction permit pro-l ceeding.. - -.
C.F.R. 5 2.788.
See Portland General Electric Co. (Trojan Nuclear Plant), ALAB-524, 9 N.R.C. 65, 68-69 (1979).
Section 2.788(e)(1) requires consideration of whether the applicant for a stay has made a strong showing that it is like-ly to prevail on the merits of its appeal.
The issues addressed by the Appeal Board in ALAB-856 include:
management capability; thermoluminescent dosimeter accuracy; environmental qualification of electrical equipment; and containment con-crete.
Nowhere in their stay request do Movants even mention these issues, let alone demonstrate that the Appeal Board's de-terminations are likely to be reversed by the Commission.E/
I In fact, the stay motion does not address matters decided by the Licensing or Appeal Boards, or even matters that were adjudicated in the operating license proceeding., Rather, the Movants complain about:
(1) the Commission's decision, CLI-86-24, 24 N.R.C.
(Dec. 5, 1986), denying the request of CASH and Mr. Eddleman for a hearing on Licensees' request for l
an exemption from the schedular requirement of section IV.F.1 of Appendix E to 10 C.F.R. Part 50; (2) the decision of the Di-rector, NRR, to grant the exemption; (3) the pendency of an l
5/
In any case, a stay of the Appeal Board's decision in ALAB-856 would not result in a stay or suspension of the operat-ing license for the Harris Plant.
The Commission has already de-cided to make the underlying Licensing Board decision, LBP-85-28, 22 N.R.C.
232 (1985), effective while the agency's appellate pro-cess proceeds to conclusion.
CLI-87-1, 25 N.R.C.
slip op.
at 2 (Jan. 9, 1987).
Under the Commission's regulations, the Li-censing Board's decision, if made effective by the Commission, is l
the only adjudicatory basis required for issuance of the license by the Director, NRR.
See 10 C.F.R.
SS 2.760a, 2.764(f).
l l l l
l
P October 17, 1986 petition filed with the Director, NRR, under 10 C.F.R. 5 2.206; and (4) the meeting and decision associated with the Commission's immediate effectiveness review.
The Appeal Board simply lacks jurisdiction to rule on these complaints.
Matters raised beyond the scope of a pro-ceeding are not appropriate grounds for seeking the stay of a Licensing or Appeal Board decision.
See Trojan, supra, ALAB-524, 9 N.R.C. at 70 (1979).
Naturally, the Appeal Board has no authority to stay actions of the Commission.
It is not within our province to pass judg-ment, for stay purposes or otherwise, upon the correctness of Commission rulings.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-810, 21 N.R.C.
1616, 1619 (1985).
Similarly, under the Commission's regulations, actions of the Director, NRR, on petitions filed under 10 C.F.R. 5 2.206 are not subject to Ap-peal Board review.
Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-466, 7 N.R.C.
457, 458 (1978); 10 l
C.F.R.
5 2.206(c).
In essence, the Movants ask the Appeal Board to recon-sider, or to stay, the Commission's Order on immediate effec-tiveness, CLI-87-1, where the Commission addressed each of these extra-adjudicatory matters.
This the Appeal Board may not do, under 10 C.F.R.
S 2.788, or any other Commission reg-ulation.
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i l 1 l
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4 Accordingly, the motion for stay filed by Mr. Eddleman and CCNC should be denied summarily.5!
Respectfully submitted, e..==..
Thomas A.
- Baxter, P.C.
SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, D.C.
20037 (202) 663-8090 Richard E. Jones Dale E.
Hollar CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-6517 Counsel for Licensees Dated:
January 27, 1987 i
l 6/
If the Appeal Board nevertheless considers it appropriate to address the four factors of 10 C.F.R. 5 2.788(e), it need go no further than the most important second factor, "whether the party will be irreparably injured unless a stay is granted."
"[A]
party moving for a stay is required to demonstrate that the inju-ry claimed is 'both certain and great.'"
Philadelphia Electric Co. (Limerick Generating Station, Unit 1), ALAB-835, 23 N.R.C.
267, 271 (1986), quoting Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 N.R.C.
743, 747 (1985).
Here, Movants claim without elaboration or basis, risk of " irreparable harm of potentially destructive mag-nitude" because of " unresolved material issues of law and fact."
Motion at 9.
This bare-bones assertion clearly is unavailing in the face of the Commission's findings which underlie issuance of the operating license.
8 January 27, 1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 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 " Licensees' Answer to I
CCNC/Eddleman Motion for a Stay" were served this 27th day of l
January, 1987, by deposit in the U.S. mail, first class, postage prepaid, to the parties on the attached Service List.
L tl. L L Thomas A.
- Baxter, P.C.
6 OC( F1iC NP UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 Ja 29 A11 :16 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD.
DGCM T..
E n. ! '
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
Thomas S. Moore, Esquire Dr. James H. Carpenter Chairman Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Charles A. Barth, Esquire Janice E. Moore, Esquire Mr. Howard A. Wilber Office of the General Counsel Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Docketing and Service Section Office of the Secretary James L. Kelley, Esquire U.S. Nuclear Regulatory Chairman Commission Atomic Safety and Licensing Bo#ard Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Mr. Daniel F. Read, President Washington, D.C.
20555 CHANGE P.O. Box 2151 Mr. Glenn O. Bright Raleigh, North Carolina 27602 Atomic Safety and Licensing Board j
U.S. Nuclear Regulatory John D. Runkle, Esquire Commission Conservation Council of Washington, D.C.
20555 North Carolina 307 Granville Road Chapel Hill, North Carolina 27514 Dr. Richard D. Wilson l
729 Hunter Street Apex, North Carolina 27502 1
1
4 M. Travis Payne, Esquire Edelstein and Payne P.O. Box 12607 Raleigh, North Carolina 27605 Richard E. Jones, Esquire Vice President and Senior Counsel Carolina Power & Light company P.O. Box 1551 Raleigh, North Carolina 27602 Mr. Robert P. Gruber Executive Director Public Staff - NCUC P.O. Box 29520 Raleigh, North Carolina 27262-0520 H. A. Cole, Jr., Esquire Special Deputy Attorney General 200 New Bern Avenue Raleigh, North Carolina 27601 Joseph Flynn, Esquire Federal Emergency Management Agency 500 C Street, S.W.
Washington, D.C.
20740 Dr. Linda W.
Little Governor's Waste Management Board 513 Albemarle Building 325 North Salisbury Street Raleigh, North Carolina 27611 Mr. Wells Eddleman 812 Yancey Street Durham, North Carolina 27701 Robert Epting, Esquire T
Coalition for Alternatives to Shearon Harris 214 West Rosemary Street Chapel Hill, North Carolina 27514 Stacy L.
Rose, Esquire Coalition for Alternatives to Shearon Harris 237 McCauley Street Chapel Hill, North Carolina 27514 2 1
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