ML20213A009

NRC Staff Response to Intervenor Application for Stay of ALAB-856.* Motion Should Be Denied Since Coalition for Alternatives to Shearon Harris Lacks Standing to File Motion & 10CFR2.788 Criteria Not Met.Certificate of Svc Encl

ML20213A009
Person / Time
Site:	Harris
Issue date:	01/28/1987
From:	Johari Moore NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#187-2358 ALAB-856, OL, NUDOCS 8702030055
Download: ML20213A009 (13)

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UNITED STATES OF AMERICA 87 'W130 P4 :27 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL-BOARD In the Matter of )

)

CAROLINA POWER AND LIGHT COMPANY ) Docket No. 50-400-OL AND NORTH CAROLINA EASTERN )

MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power, )

Plant, Unit 1) )

NRC STAFF RESPONSE TO INTERVENORS' APPLICATION FOR A STAY OF ALAB-856 4

4 Janice E. Moore Counsel for NRC Staff January 28, 1987 8702030055 870128 I)so7 PDR ADOCK 05000400 C PDR

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

CAROLINA POWER AND LIGHT COMPANY ) Docket No. 50-400-OL AND NORTH CAROLINA EASTERN )

MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power, )

Plant, Unit 1) )

, NRC STAFF RESPONSE TO INTERVENORS' APPLICATION FOR A STAY OF ALAB-856 I. INTRODUCTION l On January 12, 1987, the Conservation Council of North Carolina ,

(CCNC), Wells Eddleman and the Coalition for Alternatives to Shearon Harris (CASH) filed an application for a stay of ALAB-856.

" Conservation Council of North Carolina, Wells Eddleman, Pro Se, and i Coalition For Alternatives to Shearon IIarris' Motion to Stay Effectiveness of Licensing of Shearon Harris Nuclear Power Plant" (January 10, 1987)

[ hereinafter Motion]. O For the reasons set forth below, the Staff of i

the Nuclear Regulatory Commission (Staff) opposes the Motion on the l

grounds that the Appeal Board lacks jurisdiction to consider the matters l

1/ Once again the Staff notes that CASH is not and never has been a

! party to the Shearon IIarris Operating License proceeding, i Therefore, CASH lacks the standing to file a stay motion pursuant to 10 C.F.R. I 2.788 of the Commission's regulations, since that section confers the right to apply for stays only on parties to the i proceeding in question, 10 C.F.R. I 2.788(a). In this response the Staff refers to the movants as Intervenors. This reference is i not, however, meant to include CASH. It is the Staff's position that the motion must be denied with respect to CASit since the organization lacks standing to file such a motion, i

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3 complained of in the motion and, even if the Appeal Board were to deter-mine that it had jurisdiction over the matters raised in the motion, that Intervenors have failed to meet the criteria for a stay set forth in 10 C.F.R S 2.788.

II. BACKGROUND On December 31, 1986, the Appeal Board issued its fourth decision in this operating license proceeding. Carolina Power and Light Company, 3 ej al. (Shearon Harris Nuclear Power Plant), ALAB-856, NRC (December 31, 1986). This decision affirmed the Licensing Board's f

second Partial Initial Decision which dealt with certain safety issues. 2_/

In three previous decisions the Appeal Board affirmed the Licensing l

f Board's decisions concerning the other contested issues in the proceeding. 3_/ One of the decisions which the Appeal Board previously j affirmed was the Licensing Board's Final Partial Initial Decision. This

! decision resolved the two remaining issues before the Licensing Board and l authorized the director of the Office of Nuclear Reactor Regulation to issue a full power operating license to Applicants. This final decision 2/

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The second Partial Initial Decision considered the issues of manage-ment capability, the use of thermoluminescent docimeters, environmental qualification of certain electrical equipment, and tho adequacy of some concrete placements in the IIarris containment.

Carolina Power and Light Company, et al. (Shearon Harris Nuclear Power Plant Units 1 and 2), LBP-85-R,72 NRC 232 (1985).

3/ et al. (Shearon Harris Nuclear Carolina Power ALAB-836, Power Plant), and Light Company, 23 NRC 5 fr tis 86): Carolina Power and Light Company, et al. (Shearon liarris Nuclear Power Plant ),

ALAB-843, 24 NRC ~(August 15, 1986): Carolina Power and Light Company, ~et al. (!Diearon Harris Nuclear Power Plant), ALAB-852, 24 NRC ([Tctober 31, 1986).

r was issued by the Licensing Board in April of 1986, and was affirmed by the Appeal Board in October of 1986. U On January 10, 1987, Intervenors moved the Appeal Board for a stay of the effectiveness of the Appeal Board's December 31, 1986 decision pursuant to 10 C.F.R. I 2.788 of the Commission's regulations.

Motion at 1. The grounds for the Stay are that Applicants have failed to comply with the emergency planning exercise regulations and are not entitled to an exemption, and that the Commission acted arbitrarily and capriciously in authorizing the full power license due to the pendency of issues raised in a petition filed pursuant to 10 C.F.R. I 2.206. Motion at 2, 6. As discussed below, these complaints are raised in the wrong forum since they are not within the jurisdiction of the Appeal Board to consider and do not relate to the decision, ALAB-856, of which the stay is sought. Furthermore, even if the Appeal Board were to determine that it had jurisdiction over the matters raised in Intervenors' Motion ,

Intervenors have not met the criteria for a stay in 10 C.F.R. I 2.788.

iff. DISCUSSION A. Statutory and Case Law Basis for Determining Appellate Jurisdiction The authority of the Appeal Board has been delegated to it by the Commission. 10 C.F.R. I 2.785. Section 2.785 delegates to the Appeal Board the authority to perform the review functions which would have 4/

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In affirming this decision, the Appeal Board did not, however, affirm the Licensing Board's authorization of issuance of the license since the Appeal Board was still considering the Licensing Board's Second Partial Initial Decision. ALAB-852, supra, slip op, at 28, noto 78.

.o been performed by the Commission under certain enumerated sections of the regulations. 10 C.F.R. I 2.785(a). The Commission has not delegated to the Appeal Board the authority to review Commission actions.

The Appeal Board also has the inherent authority to determine whether it has jurisdiction over a given matter in the first instance.

Philadelphia Electric Company (Limerick Generating Station , Units 1 and 2), ALAB-840, NRC (July 16, 1986); Duke Power Co.

(Perkins Nuclear Station, Units 1, 2 and 3), ALAB-591,11 NRC 741, 742 (1980).

In considering the instant motion it is necessary for the Appeal Board first to exercise its inherent authority to determine its jurisdiction before it reaches the questien of whether Intervenors have satisfied the stay criteria of 10 C.F.R. I 2.788. Ihile the motion purports to request a stay of the Appeal Board's decision in ALAD-856, a matter once which the Appeal Board clearly has authority, a detailed examination of the motion demonstrates that Intervenors do not claim that ALAB-856 was in any way erroneous. Rather, the complaints rals'ed by Intervenors center on actions taken by the Commission in its immediate effectiveness decision (Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant), CLI-87-1, NRC (January 9,1987)) and in its order concerning Intervenors' hearing request on Applicants' request for an exemption. Memorandum and Order, CLI-86-24 NRC (December 5, 1986). As discussed further below, the Appeal Board lacks the delegated authority to review Commission decisions and actions (see, g, e Long Island Lighting Company (Shorcham Nuclear Power Station, Unit 1), ALAB-810, 21 NRC

.o 1616, 1619 (1985)), and therefore it lacks the jurisdiction to consider Intervenors' complaints in determining whether the stay criteria have been satisfied.

In addition, Section 2.788 of the regulations only confers a right to request a stay upon a party to a proceeding who intends to file or who has filed a timely appeal of the decision which is sought to be stayed.

Portland General Electric Co. (Trojan Nuclear Plant), ALAB-524, 9 NRC 65, 68-69 (1979). Intervenors do not express their intention in the instant motion to file a petition for review of ALAB-856 with the Commission. The time for the filing of such a petition expired on January 20, 1987. As of the date of the filing of this response, the Staff is unaware of any petition for review having been filed with the Commis-sion by Intervenors. For these reasons the motion should be denied.

B. The Appeal Board Lacks the Jurisdiction to Review the Commission's Decisions Concerning The Applicants' Requested Exemption Interver. ors' first assertions of error concern the Commission's actions with respect to an exemption from the requirements of 10 C.F.R. Part 50, Appendix E of the Commission's regulations requested by I The exemption request was directed to Applicants in li! arch of 1986.

the Director of the Office of Nuclear Reactor Regulation as required by

10 C.F.R. 6 50.12. Intervenor Wells Eddleman set forth his views in opposition to the exemption request and requested a hearing on the i 5/

Letter from A. B. Cutter, CP&L to liarold R. Denton, Director, Office of Fuclear Reactor Regulation dated March 4,1986.

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l exemption request by letter to the Director of NRR, dated April 13, 1986.

This request was forwarded to the Commission for its consideration by the Staff. 6_/ Both the Applicants 1 and the Staff SI filed responses opposing Mr. Eddleman's hearing request. Mr. Eddleman reiterated his request for a hearing in a letter to the Commissioners dated July 13, 1986 in which he was joined by CASH. Applicants opposed this request for

hearing as well. S In an Order issued September 12, 1986, the Commission stated it had decided not to reach in its Order the question of

"whether under Section 189a of the Atomic Energy Act , Applicants' exemption request grants interested persons hearing rights". Order at

2. Rather, the Commission " decided first to determine whether there are any material issues of fact to litigate at a hearing". Id. The Commission l provided specific instructions with regard to the pleadings filed in response to its Order. Mr. Eddleman and CASH were to indicate "what contentions they seek to litigate, what the specific disputed material facts are for which they believe a hearing must be held, what position they i

take on such issues, and the factual basis for such position". Order at 6/

Memorandum for S. Chilk, through V. Stello, from E. Christenbury (May 15, 1986); Memorandum for S. Chilk, from E. Christenbury (July 17, 1986).

-7/ " 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" (April 22,1986).

! 8/ "NRC Staff Response to Wells Eddleman's Request for a Hearing on

! Applicants' Request for Exemption from the Requirement for an j Emergency Preparedness Exercise" (July 24, 1986).

-9/ " Applicants' Response to Joint CASH /Eddleman Petition for Hearing on Exemption Request" (August 28, 1986).

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4 2-3. They should also explain "why these issues are material to a determination under 10 C.F.R. I 50.12 and should set forth their rationale for believing an oral hearing is needed for a full and true discussion of the facts on these issues". Order at 3. The Staff and Applicants were instructed to "specifically respond to each issue raised by Mr. Eddleman and CASH". Id. In addition, the Staff was to advise the Commission of its views regarding whether the exemption request should be granted. Order at 2. After considering the parties' additional filings, the Commission denied the pending hearing requests on the grounds that no disputed material facts had been identified requiring a hearing to be held for resolution .of such facts.

Intervonors' complaints concerning this matter chslienge the Commission's denial of the hearing requests, challenge the appropriateness of the Applicants' use of 10 C.F.R. I 50.12 as the basis for their request, and challenges the Commission's right to delegate the authority to grant this exemption to the Staff. Motion at 2-6. None of the actions complained of by Intervenors were taken by the Appeal Board in ALAB-856. That decision was not in any way concerned with the exemption request. As discussed above, that decision dealt solely with safety issues. Rather, the Intervenors' assertions relate to alleged errors by the Commission. As the Appeal Board has noted in the past, such assertions are addressed to the wrong forum. Shoreham, supra, 21 NRC at 1619. "It is not within the [ Appeal Board's] province to pass judgment , for stay purposes or otherwise, upon the corrections of Commission rulings." Id. In sum, since the exemption was not an issue in the hearing on the application for an operating license, and since the actions complained of have been taken by the Commission, the Appeal

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Board lacks the jurisdiction to review the correctness of these actions in determining whether a stay should be granted.

C. The Appeal Board Lacks the Jurisdiction to Consider the Correctness of the Commission's Decision Concerning the Safety Significance of Issues Raised in a Pending Section 2.206 Petition Intervenors' next assertions of errcr concern the Commission's consideration of issues raised in a petition filed pursuant to Section 2.206 of the Commission's regulations by CASH and Wells Eddleman in October of 1986. Motion at 6-8. Intervenors appear to be complaining that since the Staff's investigation of the Section 2.206 issues was not yet complete and since the parties did not have the results of the investigation at the time of the public meeting on January 8,1987, the Commission's decision not to delay issuance of a full power license was not based on all of the information available to it. _Id .

The issues raised in the Section 2.206 petition were never raised in the operating license proceeding. The petition was filed with the Director of NRR. The Commission heard a presentation from the Staff at the l

public meeting on January 8,1987, and determined that the issues raised in the Section 2.206 petition did not have sufficient safety significance to I

justify delaying issuance of a full power license. CLI-87-1, supra, slip op. at 7. As noted above, if Intervenors are seeking to challenge this determination of the Commission, they are in the wrong forum.

l Shoreham, supra, 21 NRC at 1619.

The Director of NRR has not yet issued his decision concerning the

! Section 2.206 petition. Ilowever, the Staff notes that Section 2.206 does

! not provide for Appeal Board review of such decisions. Rather, they are l reviewed directly by the Commission, 10 C.F.R. I 2.206(c)(1), if the i

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Commission chooses to do so. Therefore, the Appeal Board would lack jurisdiction to review the Director's decision when it is issued unless specifically directed to do so by the Commission.

Once again, Intervenors are not attempting to challenge any of the components of ALAB-856. Rather, they are challenging the adequacy of the basis on which the Commission made its immediate effectiveness ruling. It is not within the delegated authority of the Appeal Board to review such Commission actions. Therefore, Intervenors' motion for a stay based on this complaint of error must be denied.

D. Even if the Appeal Board were to determine that it had jurisdiction over the matters raised in the motion, Intervenors have failed to meet the criteria for a stay set forth in 10 C.F.R. I 2.788 The four criteria which Intervenors must satisfy in order for a stay to be granted are set forth in 10 C.F.R. I 2.788(e) of the Commission's regulations. If the Intervenors fail to make an adequate showing with respect to the first two criteria, likelihood of success on the merits and irreparable injury, the two remaining criteria need not be considered. ,

Shoreham, supra, 21 NRC at 1620. As discussed below, Intervenors have failed to make an adequate showing with respect to these first two criteria.

Intervenors have not actually claimed that they would be likely to succeed on the merits of an appeal of ALAB-856. None of the errors they allege occurred relate in any way to that Appeal Board decision.

Therefore, Intervenors have not addressed the first criterion at all, let alone made the strong showing necessary to satisfy it.

With regard to irreparable injury, Intervenors merely state without elaboration that they would suffer the risk of serious harm because of

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certain outstanding material issues of fact and law. Motion at 9. Once l again, none of the a::tions they complain of relate to the decision which is the subject of this stay request. They also do not explain, as is required by this criterion, what concrete harm the members of the Public would suffer if the plant were to operate as authorised. See Shoreham, supra, 21 NRC at 1619. Thus, they have failed to satisfy the second stay criterion. In sum, since Intervenors' demonstrations with regard to these two stay criteria are inadequate, the remaining criteria should not be considered in any detail, and the motion should be denied even if the Appeal Board decides it has jurisdiction to consider it in the first instance.

IV. CONCLUSION For the reasons set forth above, the Staff concludes that the instant motion for a stay of ALAB-856 should be denied 1) as to CASH since that organization lacks standing to file such a motion and 2) as to the Intervenors Wells Eddleman and CCNC for lack of jurisdiction on the part of the Appeal Board to consider the matters set forth in the motion and even if the Appeal Board were to determine that it had jurisdiction over the matters raised in the motion, for failure by Intervenors to meet the criteria for a stay set forth in 10 C.F.R. 8 2.788.

Respectfully submitted.

T 3M@__. 6 Janice E. Moore Counsel for NRC Staff Dated at Bethesda, Maryland this 28th day of January,1987

f Sh UNITED STATES OF AMERICA 87 JAN 30 P4 :27 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAIf> BOARD n+-

uum %D In the Matter of )

)

CAROLINA POWER AND LIGHT COMPANY ) Docket No. 50-400-OL AND NORTH CAROLINA EASTERN )

MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power Plant, )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF R' ESPONSE TO INTERVENORS' APPLICATION FOR A STAY OF ALAB-856" 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 Regula-tory Commission's internal mail system, this 28th day of January,1987:

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 Travis Payne, Esq.

723 W. Johnson Street Mr. Glen O. Bright

• P.O. Box 12643 Administrative Judge Raleigh, NC 27605 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commissien Dr. Linda Little Washington, DC 20555 Governor's Waste Management Building 513 Albermarle Building Dr. James H. Carpenter

• 325 North Salisbury Street Administrative Judge Raleigh, NC 27611 Atomic Safety and Licensing Board U.S. Nuclear Regualtory Commission John Runkle, Esq.

Washington, DC 20555 Executive Coordinator Conservation Counsel of North Carolina Daniel F. Read 307 GranvfHe Road CHANGE Chapel 11111 NC 27514 P.O. Box 2151 Raleigh, NC 27602 Robert P. Gruber Executive Director Wells Eddleman Public Staff - NCUC 812 Yancy Street P.O. Box 991 Durham, NC 27701 Raleigh, NC 27602

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H. Joseph Flynn, Esq. Richard E. Jones, Esq.

Associate General Counsel Vice President and Senior Counsel Office of General Counsel Carolina Power a Light Company FEMA 411 Fayetteville Street Mall 500 C Street, S.W. , Rm. 840 Raleigh, NC 27602 Washington, DC 20472 Thomas A. Baxter, Esq.

Regional Counsel John H. O'Neill, Esq.

U.S. Nuclear Regulatory Commission Shaw, Pittman, Potts a Trowbridge Region Ill 2300 N Street, N.W.

101 Marietta St. , N.W. , Suite 2900 Washington, DC 20037 Atlanta, GA 30323 Atomic Safety and Licensing H. A. Cole , Jr. , Esq . Panel

• Special Deputy Attorney General U.S. Nuclear Regualtory Commission P.O. Box 629 Washington, DC 20555 Raleigh, NC 27601 Docketing and Service Section*

Atomic Safety and Licensing Appeal Office of the Secretary Board Panel

• U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 hY -

AY Janice E. Moore Counsel for NRC Staff

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