ML20214R368

Response Opposing Coalition for Alternatives to Shearon Harris/Eddleman Request for 2-wk Extension to Respond to Commission 860912 Order Re Exemption from Requirements of 10CFR50,App E.W/Certificate of Svc

ML20214R368
Person / Time
Site:	Harris
Issue date:	09/23/1986
From:	Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC COMMISSION (OCM)
References
CON-#386-812 OL, NUDOCS 8609290154
Download: ML20214R368 (9)

Text

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September 23, 198g0u c ED

'86 SEP 23 P1 :05 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CFFICE ! , '

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w BEFORE THE COMMISSION In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

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

)

(Shearon Harris Nuclear Power )

Plant) )

APPLICANTS'-ANSWER IN OPPOSITION TO THE CASH /EDDLEMAN REQUEST FOR AN EXTENSION OF TIME IN WHICH TO RESPOND TO THE COMMISSION'S ORDER OF SEPTEMBER 12, 1986 In an Order issued September 12, 1986, the Commission re-quested intervenor Eddleman and the Coalition for Alternatives to Shearon Harris to file a written brief, addressing matters iden-tified in the Order, in support of their requests for a hearing on Applicants' request for an exemption from the requirement --

in S IV.F.1 of Appendix E to 10 C.F.R. Part 50 -- that a full-scale emergency preparedness exercise be conducted "within 1 year before the issuance of the first operating license for full power and prior to operation above 5% of rated power. . . . The brief is to be served on Carolina Power & Light Company and the NRC Staff by express mail and to be in the hands of the Secretary of the Commission by 5:00 p.m., September 29, 1986.

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Today, only six days before the CASH /Eddleman brief is due, Applicants received by regular mail a copy of " Coalition for Alternatives to Shearon Harris & Wells Eddleman's Request for an Extension of Time in Which to Respond to the Commission's Order of September 12, 1986."1! CASH and Mr. Eddleman seek a two-week extension to "the week of October 13th" to file their brief.

Applicants would be harmed by the requested extension of time and vigorously oppose it. As explained in the attached let-ter of August 1, 1986, to the Commission from Mr. E.E. Utley, CP&L Senior Executive Vice President, a prompt Commission deci-sion is needed so that CP&L and off-site emergency response orga-nizations can plan definitively for Harris Plant exercises and avoid potential delay in the full power operation of the plant.

The two-week extension would exacerbate an already threatening and untenable schedule situation.

The extension request should be denied as well because CASH and Mr. Eddleman have not demonstrated good cause for the relief sought. Applicants' exemption request was filed on March 4, 1986. Over six months later, Mr. Eddleman and CASH indicate that they must now undertake an tnalysis of 10 C.F.R. S 50.12 and

" novel issues of law" in order to file their brief.2/ This 1/ While the request was served upon the Commission by express mail, no attempt was made by CASH or Mr. Eddleman to notify the most affected party -- Applicants -- that the request had been filed.

2/ Mr. Eddleman filed a hearing request on April 3, 1986. CASH and Mr. Eddleman jointly filed a hearing request on July 31, 1985.

O candid admission simply confirms Applicants' argument that the hearing requests have not sought to raise issues relevant to the exemption,E! and that the Commission could well have denied the requests outright on that basis.

CASH and Mr. Eddleman also cite "the substantial time limi-tations which our Washington attorneys are under." No attorneys have entered an appearance for CASH or Mr. Eddleman. This cryp-tic reference to unspecified time conflicts for unidentified law-yers cannot serve as a basis for an extension request.

Fairness and equity require that the Commission proceed to a prompt decision on the schedule it has established. The cavalier effort to delay this decision on obviously frivolous grounds should not be countenanced. Applicants urge the Commission to deny the requested extention of time.

Respectfully submitted, Thomas A. Baxter, P.C.

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 Applicants 3/ See Applicants' Response to Joint CASH /Eddleman Petition for Hearing on Exemption Request, August 28, 1986.

4 CP&L CO Carolina Power & Light Company SERIAL: NLS-86-291 AUG 01 1986 E. E. UTLEY s.n.or E1.cunv. vice n. o.m Pow r supply and Erigee.nng & Constructen Chairman Lando W. Zech, Jr.

Commissioner Thomas M. Roberts Commissioner James K. Asselstine Commissioner Frederick M. Bernthal U. 5. Nuclear Regulatory Commission Washington, DC 20555 SHEARON HARRIS NUCLEAR POWER PLANT UNIT NO.1 - DOCKET NO. 50-400 LETTER TO HAROLD R. DENTON FROM WELLS EDDLEMAN, CONCERNING HEARING ON EXEMPTION REQUEST (APRIL 3,1986).

Dear Mr. Chairman and Commissioners:

A full-participation emergency preparedness exercise was conducted for the Shearon Harris Nuclear Power Plant plume exposure pathway Emergency Planning Zone on May 17-18,1985. The NRC inspection team reported no violations or deviations, and characterized the exercise as " fully successful"(Reference 1). Similarly, FEMA found that the exercise demonstrated that "the state and local emergency plans are adequate and capable of being implemented . . ."(Reference 2). The results of the exercise were litigated before the Atomic Safety and Licensing Board, which in March 1986 resolved the contentions in Carolina Power & Light Company's (CP&L) favor, finding no evidence of a fundamental flaw (Reference 3).

On March 4,1986, because of a delay in the plant schedule, CP&L requested an exemption from the requirement in 10 CFR Part 50, Appendix E, SIV.F.1, to perform the full-participation emergency preparedness exercise "within one year prior to issuance of the first operating license for full power and prior to operation above five percent of rated power . . ." for the Harris plant (Reference 4). By letter dated April 3,1986, Mr.

Wells Eddleman sought a hearing on CP&L's exemption request (Reference 5). Carolina Power & Light Company and the NRC Staff have responded to the hearing request, both concluding that Mr. Eddleman is not entitled to a hearing on the exemption request (Reference 6 and 7).

Mr. Eddleman's request for a hearing is presently pending before the Commission (Reference 8 and 9). For the reasons discussed below, CP&L respectfully requests expedited Commission disposition of the hearing request.

While CP&L's exemption request is pending before the Staff and Mr. Eddleman's hearing request is pending before the Commission, it is presently uncertain whether a second full-participation exercise will be required as a precondition for licensing. Although the NRC Staff has taken a preliminary position that CP&L's request for an exemption should be granted (Reference 7, p. 7, note 5), the ultimate decision on the exemption would be 411 Fayettevate street

• P o Bon 1551

• Aaseign. N C 27602

4

,. NLS-86-291/ Page 2 lef t to an NRC adjudicatory board if the Commission were to grant Mr. Eddleman's request for a hearing. The longer Commission action on the hearing request is deferred, the greater the potential impact on plant schedule.

Even if the Commission were to order a board empaneled as early as the beginning of September, it is unlikely that a board decision on the exemption could be issued before November, given the potential requirement to engage in discovery, prepare testimony, conduct an evidentiary hearing, file proposed findings of fact and conclusions of law, and render a decision. If the board were to deny the exemption, still more time would be required. Exercise objectives and scenarios must be submitted to FEMA well in advance of an exercise - 75 days and 45 days, respectively. In addition, time would be required to coordinate the schedules of the various Federal, State, and local agencies that would have a role in a full-participation exercise. Finally, the FEMA exercise report typically does not issue for a matter of months after an exercise. For example, the FEMA report on the May 1985 Harris full-participation exercise was not released until more than three months after that exercise. Thus, with fuel load presently projected as early as September 1986, even prompt Commission action, if the hearing request is granted, would jeopardize full-power licensing and operation above five percent power.

Other equitable considerations also favor expeditious and definitive Commission action.

When Section IV.F.1 was adopted, the NRC did not contemplate that the results of the pre-licensing exercise would be the subject of adjudication before a licensing board.

Indeed, the Commission adopted a regulation in 1982 which expressly barred such litigation (Reference 10). However, in Union of Concerned Scientists vs. NRC,735 F.2d 1437 (D. C. Circuit 1984), the U. S. Court of Appeals for the D. C. Circuit vacated the 1982 regulation. The UCS ruling, which was unanticipated when the one-year rule was promulgated, traps NICC' applicants in a " Catch-22" situation. Applicants now must schedule full participation exercises sufficiently far in advance of the anticipated licensing date to accommodate evidentiary hearings on the results of the exercise (Reference 11). But, by scheduling exercises early enough to accommodate anticipated litigation, applicants run a considerable risk of falling outside the one-year window.

Thus, the effect of the UCS decision is to make compliance with the one-year requirement - which already necessitated foreknowledge in licensing predictions -

almost impossible if there are contested issues arising out of the exercise. The situation will be exacerbated if the applicants who need relief from this regulatory " Catch 22" will have their exemption requests subject to opportunity for hearing. Accordingly, fairness dictates that the Commission act promptly to prevent unnecessary delay in this case, and in the event hearings are required, to provide timely guidance to other applicants similarly situated.

Carolina Power & Light Company respectfully requests that the Commission act swif tly to deny Mr. Eddleman's hearing request.

Yours very truly, Original Signed BT E. E. UTLET E. E. Utley EEU/crs (40355RZ) cc: Mr. C. E. Ader Mr. 3. Austin Mr. D. F. Humenansky Mr. 3. F. Meyers

i NLS-86-291/ Page 3

References:

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

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

(transmitting FEMA Exercise Report).

(3) " Order (Concerning Emergency Planning Contentions)"(March 19,1986); " Final Licensing Board Decision," LBP-86-11,23 NRC (April 28,1986) (slip op. at 168-83).

(4) Letter, A. B. Cutter (CP&L) to H. R. Denton (NRC)(March 4,1986).

(5) Letter, W. Eddleman to H. R. Denton (NRC)(April 3,1986).

(6) " 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).

(7) "NRC Staff Response To Wells Eddleman's Request for a Hearing on Applicants' Request for Exemption from the Requirement for an Emergency Preparedness Exercise"(July 24,1986)(" Staff Response").

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

(9) Memorandum for S. Chilk, from E. Christenbury (July 17, 1986).

(10) 47 Federal Register 30232 (July 13,1982).

(11) NRC I&E Information Notice 85-41, Scheduling of Pre-Licensing Emergency Preparedness Exercises (May 24,1984)(encouraging applicants to schedule early exercises in light of UC5 case).

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DOLKETED Sept $$$br23, 1986 16 SB' 23 P4 :25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIS g {Ef[ g gg,,f"]

BRANDi BEFORE THE COMMISSION In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

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

)

(Shearon Harris Nuclear Power )

Plant) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Answer in Oppo-sition to CASH /Eddleman Request for an Extension of Time in Which to Respond to the Commission's Order of September 12, 1986" were served this 23rd day of September, 1986, by hand delivery to the parties identified with one asterisk, and by deposit in the U.S.

mail, first class, postage prepaid, to the other parties on the attached Service List.

Thomas A. Baxter, P.C.

1 i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

)

In the Matter of '

)

)

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

)

(Shearon Harris Nuclear Power )

Plant) )

SERVICE LIST

• Chairman Lando W. Zech, Jr. Dr. Reginald L. Gotchy U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Commissioner Thomas M. Roberts Mr. Howard A. Wilber U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 I Appeal Board U.S. Nuclear Regulatory' Commission l

• Commissioner James K. Asselstine Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 James L. Kelley, Esquire

• Commissioner Frederick M. Bernthal Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 20555 Washington, D.C. 20555 Washington, D.C.

Mr. Glenn O. Bright

• Commissioner Kenneth M. Carr Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissio:

Washington, D.C. 20555 Washington, D.C. 20555 Dr. James H. Carpenter Thomas S. Moore, Esquire Atomic Safety and Licensing Board l Chairman U.S. Nuclear Regulatory Commissio Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

i Dr. Richard D. Wilson

• Charles A. Barth, Esquire 729 Hunter Street Janice E. Moore, Esquire Apex, North Carolina 27502 Of fice of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Wells Eddleman 812 Yancey Street Durham, North Carolina 27701 Docketing and Service Section Office of the Secretary Richard E. Jones, Esquire U.S. Nuclear Regulatory Commission Vice President and Senior Counsel Washington, D.C. 20555 Carolina Power & Light Company P.O. Box 1551 Mr. Daniel F. Read, President Raleigh, North Carolina 27602 CHANGE P.O. Box 2151 Dr. Linda W. Little Raleigh, North Carolina 27602 Governor's Waste Management Board 513 Albemarle Building Bradley W. Jones, Esquire 325 North Salisbury Street U.S. Nuclear Regulatory Commission Region II Raleigh, North Carolina 27611 101 Marrietta Street H. A. Cole, Jr., Esquire Atlanta, Georgia 30303 Special Deputy Attorney General Mr. Robert P. Gruber 200 New Bern Avenue Raleigh, North Carolina 27601 Executive Director Public Staff - NCUC Joseph Flynn, Esquire P. O. Box 29520 Federal Emergency Management Agenci Raleigh, North Carolina 27262-0520 S.W.,

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

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