ML20214T251
| ML20214T251 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 12/05/1986 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | EDDLEMAN, W. |
| References | |
| CON-#486-1788 CLI-86-24, OL, NUDOCS 8612080535 | |
| Download: ML20214T251 (19) | |
Text
17ff UNITED 5TATES OF AMERICA t '!
NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Lando W. Zech, Jr., Chairman i,Fr i.
f Thomas M. Roberts 00cc i
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James K. Asselstine Frederick M. Bernthal Kenneth M. Carr In the Matter of 3EUVED OCC "'iI90b CAROLINA POWER & LIGHT COMPANY and NORTH CAROLINA EASTERN Docket No. 50-400 OL MUNICIPAL POWER AGENCY (Shearon Harris Nuclear Power Plant)
MEMORANDUM AND ORDER CLI-86 24 The Commission has before it a request for a hearing on an exemption request. Finding no material issues of fact that would warrant a hearing, the Commission denies the hearing request.
I.
Backaround The Coninission's regulations require a full participation emergency preparedness exercise "within 1 year before the issuance of the first operating license for full power and prior to operation above 5% of rated 861208053') 861205 PDR ADOCK 05000400 0
POR
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power of the first reactor...."
10 C.F.R. Part 50, App. E, 6 IV.F.1.1 Applicant Carolina Power & Light (CP&L), projecting fuel load in March 1986, conducted a full participation exercise on May 17-18, 1985.
Applicant did not meet its projected schedule for fuel load. Since CP&L did not have another full participation exercise planned for 1986, on March 4, 1986 CP&L requested an exemption from the emergency preparedness exercise requiremencs of App. E, 6 IV.F.1.
On April 3,1986, Wells Eddleman, intervenor in the on-going Shearon I
horris operating license proceeding, requested a hearing on this exemption reque t.
While Eddleman's request was pending, CP&L on June 10, 1986 asked the NRC to suspend consideration of the exemption request. On July 10, 1986, CF8L asked for resumed consideration of its request. The NRC staff on July 24, 1986 filed an opposition to the Eddleman request for a bearing.
On August 5,1986, Eddleman, joined this time by the Coalition for Alternatives to Shearon Harris (CASH), again requested a hearing on the exemption request. CP&L filed a motion in opposition on August 28, 1986.
IA " full participation" exercise is defined as meaning:
[A]ppropriate offsite local and State authorities and licensee l
personnel physically and actively take part in testing their integrated capability to adequately access and respond to an accident at a commercial nuclear power plant.
" Full participation" includes testing the major observable portions of the onsite and offsite emergency plans and mobilization of State, local and licensee personnel and other resources in sufficient numbers to verify the capability to respond to the accident scenario.
10 C.F.R. Part 50, App. E at n.4.
3 On September 12, 1986, the Comission requested briefs on whether there were any material issues of fact regarding whether the exemption l
request should be granted. The Comission explained that it had decided to l
determine whether there were any material issues of fact warranting a hearing before it decided whether the Atomic Energy Act granted interested i
persons any hearing rights on the exemption request.
1 Eddleman and CASH (" petitioners") submitted their brief on October 6, 1986.2 As pertinent to the issues addressed in this order, they argued that the exemption request requires a full evidentiary hearing under i
Section 189a of the Atomic Energy Act, that deficiencies in the May 1985 exercise raise material issues of fact regarding whether necessary improvements have been made and the plan is now feasible, and that occurrences subsequent to the May 1985 exercise raise material issues of fact and compel rejection of the exemption request.3 1
2The Comission in its September 12 order reserved whether CASH's l
hearing request was tirrely, and whether CASH, which did not intervene in the operating license proceeding, would have any rights to participate in any hearing.
In view of the Comission's decision that there are no material issues of fact warranting a hearing, and in view of the fact that l
CASH and Eddleman filed a joint brief, the Comission need not reach those questions.
3 Somecommentre!ardingtheresponsiveressofpetitioners'briefisin The Comissio 's September 12 order directed Eddleman and CASH to order.
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" indicate what contentions they seek to litigate, what the specific l
disputed material facts are for which they believe a hearing must be held, what position they take on such issues, and the factual basis for such position." The order further stated they should " explain why these issues l
are material to a determination under 10 C.F.R. 50.12," and " set forth their rationale for believing an oral hearing is needed for a full and true discussion of the facts on these issues." The Comission by requesting this Information intended to resolve whether petitioners had raised any (FootnoteContinued) l
4 CP&L and the NRC staff opposed the hearing request. Both argued that petitioners had failed to raise any material issue of fact regarding l
whether the exemption request should be granted.
II. Regulatory Background And The Exemption Request The Comission's regulations set up two requirements for the grant of an exemption. First,theexemptionmustbe"(a)uthorizedbylaw,...not present an undue risk to the public health and safety... and (be) consistent with the comon defense and security." 10C.F.R.50.12(a)(1).
Second, there must be a "special circumstance" as defined in 10 C.F.R.
50.12(a)(2).
(Footnote Continued) litigable contentions.
Petitioners' brief is somewhat less than responsive to the Comission's order. For instance, petitioners have failed to identify the contentions they seek to litigate, or to set forth any rationale for believing an oral hearing is needed for a full and true discussion of the factual issues they raise.
The Comission in another proceeding was also faced with such nonresponsive pleadings. The Comission in that case stated that it would "not tolerate such clear disregard for its orders in the future....
[N]onresponsive pleadings may be rejected, and parties which consistently ignore Comission directives may be found to be in default. Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1982)." Motropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),CLL-85-2,21NRC282,Z86-87(1985). The Comission does not intend to have to repeat this warning. When the Comission specifies issues it wishes to have addressed It expects those issues to be briefed.
In the present case, the failings in petitioners' brief alone could serve as a basis for denying their hearing request. Nonetheless, the Comission has considered their arguments regarding whether there are any material issues of fact warranting a hearing.
5 Applicants in their March 4, 1986 exemption request maintained that the criteria of 10 C.F.R. 50.12 are met. They argued that four of the categories of special circumstances ((11), (iii), (v), and (vi)) are present.
The NRC staff has concluded that the exeroption requirements are met in the present case. See " Safety Evaluation In Support Of Granting An Exemption Request For An Exemption From Section IV.F.1. of Appendix E to 10 C.F.R. 50, Shearon Harris Nuclear Power Plant" ("SER").
In particular, staff found that the following factors support the granting of the requested exemptions:
1.
The conduct of a full participation emergency preparedness exercise in May, 1985 where the staff identified no significant deficiencies in onsite preparedness and leading to a favorable FEMA finding on offsite preparedness on August 7, 1985.
2.
Full participation by the State of North Carolina in the exercise at Catawba in February 1986 and the planned full participation by the State in the scheduled exercise at SHNPP [Shearon Harris Nuclear Power Plant) in February 1987.
l 3.
The participatici. of local response organizations in a partial participation exercise at SHNPP in October 1986 and the invol'ement of these organizations, with the I
assistance o' the licensee, in an ongoing training and development program.
SER at 3, Staff con:1uded that granting the exemption is authorized by law, will not present an undue risk to public health and safety, and is consistent with the comon defense and security. With regard to the requirement for a "special circumstance," staff found that application of the regulation "1 not necessary to achieve the underlying purpose of the rule" under 10 C.I R. 50.12(a)(2)(ii).
Id.
Staff explained that the
" underlying purpos i" of the rule is "to ensure that adequate emergency
6 response capability exists at the time of licensing." Id. at 1. Based on the available information, staff concluded that this purpose is met without another full participation exercise.4 III. Analysis
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A.
Whether Section 189a Creates Hearing Rights Even if Section 189a of the Atomic Energy Act required an adjudicatory hearing on this exemption request, as petitioners assert, threshold procedural requirements for institution of a hearing would still have to be met. See, e.g., BPI v. Atomic Energy Connission, 502 F.2d 424 (D.C. Cir.
1974). Since adjudicatory hearings are intended only for the resolution of l
l 4Before the merits of petitioners' arguments are addressed, there is one other preliminary matter that warrants discussion. There is a full participation exercise scheduled at Shearon Harris for February 27, 1987.
On October 29, 1986, the North Carolina Attorney General's office requested that the Comission determine the probability of readiness before February 27 for full power operation at Shearon Harris. The Attorney General argued that, unless there is a reasonable probability that CP&L will be ready for a full power license by February 27, the request for an exemption is mcot.
The NRC staff responded to this motion on November 17, 1986. The staff stated its view that CP&L would be ready to exceed 5% of rated power in January 1987.
l The Connission in this order is not addressing the merits of the exemption request, including whether the requested relief is necessary.
l Unless there is a hearing on the requeet, the NRC staff has the authority l
to grant or deny the request. However, the Comission notes in this regard that even if the plant were not ready to exceed 5% power until February 27, the mere fact that an exercise is scheduled for February 27 does not mean that the results of that exercise will be available.'n February 27.
FEMA and the NRC staff must thereafter evaluate the exercise, a process that could take several weeks.
7 disputed issues of material fact, Costle v. Pacific Legal Foundation, 445 U.S.198,214(1980), one such procedural requirement is that a person seekin; a hearing must tender sufficient infonnation to establish that there are material issues of fact warranting a hearing. Petitioners have failed to meet this threshold requirement, and therefore the Connission need not address whether Section 189a gives interested persons hearing rights on the exemption request at issue here, either within the operating license proceeding or as a separate matter.5 5Petitioners raise numerous other issues that can be addressed sunnarily. First, petitioners contend that the Commission does not have the legal authority to grant exemptions. There is no merit to this contention. See 50 Fed. Reg. 50764, 50766-67 (Dec. 12 1985), citing United States v. Allegheny-Ludlum Steel, 406 U.S. 742 1972),andAlabama Power Co. v. Castle, 636 F.2d 323, 357 (D.C. Cir.1979.
Petitioners next argue that this exemption is related to an issue in the operating license proceeding and should be addressed under 10 C.F.R.
2.758, not 10 C.F.R. 50.12. Contrary to petitioners' assertion, this exemption request -- regarding whether another full participation exercise must be held prior to licensing -- is not directly related to a contention in the operating license proceeding. Moreover,10 C.F.R. 2.758 and 50.12 offer alternative methods for seeking waivers or exemptions from the Consission's regulations. Which is more appropriate depends on the circumstances of each case, and there is no requirement that CP&L proceed under 10 C.F.R. 2.758 here. See, e.g., Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant VIIits 1 and 2), LBP-85-33, 22 NRC 442 (1985),
aff'd, ALA8-841, 24 NRC (1986). The earlier Connission decisions indicating that 50.12 was only to be used in emergency situations were issued before the revisions to 50.12. See50 Fed. Reg.50764(Dec.12, 1985).
Petitioners further maintain that CP&L has not met the criteria for l
1ssuance of an exemption, and that the exemption request should be denied solely because of the lapse of time since the May 1985 exercise.
Petitioners' arguments in this regard are beyond the scope of this order, which addresses only whether to institute a hearing on this request. See n.4 supra.
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8 B.
Whether There Are Any Material Issues Of Fact The issue here is not, as a cursory reading of petitioners' brief might indicate, solely whether there are any material issues of fact regarding whether emergency preparedness is adequate. Rather, as explained in the Comission's September 12 order, the issue is whether there are any material issues of fact regarding whether the standards of 10 CFR 50.12 are met. Hence, even if petitioners did raise a material issue of fact regarding emergency preparedness,6 they would still have to show how that issue was material to a determination under 10 C.F.R. 50.12.7
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The NRC staff proposes to grant the exemption by finding that the requirementsof10C.F.R.50.12(a)(1)and(a)(2)(ii)aremet. Therefore, to demonstrate that a hearing is warranted, petitioners must raise a material is',ue of fact regarding either one of those two sections, i.e., petitioners mustraiseamaterialissueoffactregardingwhether(1)theexemptionis
"(a)uthorized by law, will not present an undue risk to the public health OThe Comission in its September 12 order stated that to the extent relevant it would consider allegations of deficiencies in emergency preparedness only where the basis for the allegation, if shonn to be true, would demonstate a " fundamental flaw" in preparedness. See, _e.g_., L_ona IslandLightingCo.(ShorehamNuclearPowerStation Unit 1), CLI-86T-I, 23 NRC 577,)58L (1986); Carolina Power A Light Co. (,Shearon Power Plant, LBP-85-49, 22 NRC 899, 908-10 (1965), aff'd, ALAB-843, 24 NRC (1986).
l l
The Comission in this Order resolves all of petitioners' claims l
without relying on the "fundame'tal flaw" stan# rd.
7For instance, issues concerning matters that would not be tested in a full participation exercise would be irrelevant to the exemption request at issue here.
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and safety, and (is) consistent with the conson defense and security,"
10 C.F.R. 50.12(a)(1), or (2) "(a)pplication of the regulation in the particular circumstances... is not necessary to achieve the underlying purpose of the rule." 10C.F.R.50.12(a)(2)(11).
Petitioners make essentially the same arguments for both sections.
With regard to whether the exemption will present an undue risk to public health and safety, petitioners maintain that "the Plan that now exists is not the Plan that was tested." Pet. Br. at 14 Petitioners argue that the May 1985 exercise demonstrated " serious defects" in the plan, and substantial modifications have been made subsequent to the exercise.
Petitioners claim that without a full participation exercise there can be no reasonable assurance that the defects have been corrected, or the modifications implemented. Petitioners also argue that significant population growth and a lack of public confidence require a full participation exercise to show that there is no undue risk to public health and safety.
With regard to whether application of the regulation is necessary to achieve the underlying purpose of the rule, petitioners maintain that the purpose of the requirement for a full participation exercise within one year before issuance of a full power license "is to establish reasonable assurance that the emergency plan in place can and will be implemented."
Pet. Br. at 17.8 Petitioners maintain that the regulation requires that 8The Conmission agrees with the thrust of petitioners' statenent of the purpose of the regulation. The Connission's regulations require that (FootnoteContinued) l
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" readiness ar.d training actually exist within one year before operation above five percent power," id., but that the May 1985 exercise fails to establish such assurances. Hence, petitioners conclude, an exemption would defeat the purpose of the regulation. Petitioners, to support this argument, cite the same factual arguments regarding preparedness as discussed above, i.e., they cite defects in the May 1985 exercise, modifications subsequent to the exercise, population growth, and a lack of public confidence.9 In sum, petitioners maintain that defects in preparedness pose an undue risk to public health and safety and demonstrate that the underlying (FootnoteContinued) there be " reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency."
10 C.F.R.
50.47(a). The exercise requirements are designed to assist in ensuring that this standard is met. Hence the underlying purpose of the requirement for a full participation exercise within one year of license issuance is to help ensure that emergency preparedness is adequate at the time of licensing the facility to ascend above 5% of reted power.
The Comission has recently issued a Notice of Proposed Rulemaking which would change the one-year requirement to a two-year requirement.
51 Fed. Reg.43369(Dec.2,1986). The Comission in that Notice explained that it had determined in an earlier rulemaking that biennial exercises by state and local governments were adequate for plants with operating licenses, and that there was no reason to have a biennial post-license exercise requirement and an annual pre-itcense requirement. The Consnission explained that the only requirement regarding the timing of a pre-license exercise should be that the participants be in place and trained so that the exercise is meaningful.
J.d,. at 43369-70.
9Petitioners also claim that applicant is suggesting that less than a full participation exercise can substitute for a full participation exercise. Applicant is using a partial exercise and other measures to show that it is continuing to maintain an adequate level of preparedness. As noted by the NRC staff, subsequent to May 1985 " additional training has been provided, fire drills have been conducted... and other activities connenced that convince the Staff that the Fay 1985 level of response capability has been maintained." Staf f Dr. at 9.
11 purpose of the regulation cannot be met without another exercise. Below we discuss each of petitioners' alleged defects. For the sake of simplicity, we will divide petitioners' claims into two categories, those based on the May 1985 exercise and those based on events subsequent to the May 1985 exercise. The issue in each case is whether the alleged defect raises a material issue of fact regarding whether the exemption should be granted, a.
The May 1985 Exercise 4
Petitioners to support their argument that the May 1985 exercise raises material issues of fact rely on various deficiencies noted in the FEMA and State evaluation reports. However, they ignore the fact that these individual critici".ms did not affect the overall conclusion that emergency planning was adequate. The overall FEMA findings on the Shearon Harris exercise were that:
The State and local emergency plans are adequate and capable of being implemented, and the exercise demonstrated that offsite i
preparedness is adequate to provide reasonable assurance that appropriate measures can be taken to protect the health and safety of the pubile living in the vicinity of the Shearon Harris Nuclear Power Station in the event of a radiological emergency.
LBP-86-11, 22 NRC 899, 910 (1985) (quoting Memorandum from R. Krimm. FEMA, toe. Jordan,NRCat2(Aug.7,1985)).
The purpose of reviews of exercise results was explained by the Consiission in the Shoreham proceeding as follows:
I l
Staff review of exercise results is consistent with the predictive nature of emergency planning, and is restricted to determining if the exercise revealed any deficiencies which preclude a fint11ng of reasonable assurance that protective rieasures can and will be taken, i.e., fundamental flaws in the plan.
I 12 Lone Island Lightine Co. (Shoreham Nuclear Power Station, Unit 1),
l CLI-86-11,23NRC577,581(1986). Even though the results of the May 1985 exercise show some problems, they do not show a flaw in planning or implemtntation that would require another exercise prior to issuance of a full power license. Rather, the May 1985 exercise showed that both planning and implementation were adequate to meet the regulatory I
requirements. Petitioners have failed to expir.in how the deficiencies they cite raise a material issue of fact regarding whether the exemption should l
bc granted, given t1at FEMA's overall conclusions were favorable.10 Moreover, peti *.ioners' allegations lack nexus to the exemption request j
in the sense that petitioners would have had the same complaints even if the plant had comenced full power operation within one year of the j
exercise, thus obviating any need for the exemption.
In sum, petitioners reliance on the May 1985 exercise to raise a material issue of fact regarding the exemption request is misplaced.
10!n fact, Eddleman filed twelve contentions alleging deficiencies in l
l the 1985 exercise with the Licensing Board. The Licensing Board rejected seven of those contentions because they alleged " minor, ad hoc, correctable l
problems...." L8P-85-49,22NRC899,911(1985).
It rejected two because they mischaracterized the documents on which they were based and failed to show any deficiencies.
It rejected one contention alleging problems with the siren system because the system had not yet been installed, and because the problems, if there, appeared correctable.
Id. at 913. Finally, the Licensing Board granted sumary disposition on Die remaining two contentions. LBP-86-11,23NRC294,398-407(1986). The Appeal Board l
affirmed the Licensing Board's decisions. ALAB-843, 24 NRC (1986);
ALAB-852, 24 NRC (1986).
l
13 b.
Events Subsequent To The May 1985 Exercise Petitioners list eight events subsequent to the May 1985 exercise which, in their view, raise material issues of fact regarding whether granting the exemption would create an undue risk to public health and safety and would defeat the underlying purpose of the regulation. We will discuss each in turn.
Petitioners first argue that one or more warning sirens were inadvertently set off in the early morning hours in the summer of 1986, that many citizens nearby did not hear the sirens and were not awakened, and that persons who did hear the sirens and call the authorities were unable to determine what the sirens meant. Petitioners also state that tone alert radios distributed to persons living within the five mile zone
" reportedly have malfunctioned." Pet. Br. at 34.
Applicant and the NRC staff point out that the inadvertent sounding of the alam was due to vandalism, and did not provide a true test of the emergency system. This inadvertent sounding was fully addressed in a decision by the Director, NRR, denying a 10 CFR 2.206 petition by Eddleman and CASH. 00-86-15, 24 NRC (Oct.15,1986). Moreover, the adequacy of night time public alert / notification systems at Shearon Harris -- including the use of tone alert radios -- was litigated and found adequate by the Licensing and Appeal Boards. LBP-86 11, 23 NRC 294, 364 el seg. (1986),
aff'd, ALAB-852, 24 NRC,,,,(1986).
Petitioners have offered no reason to believe that the act of vandalism provided a true test of the siren system, and their claim that tone alert radios " reportedly" malfunctioned is vague and unsupported.
b 14 Moreover, another full participation exercise -- which would not require a test of the notification system at night -- is not even relevant to these Concerns.
Petitioners next argue that the lapse of time since the May 1985 exercise, personnel changes, modifications in the chain of comand, and the I
need for retraining raise material issues of fact. Petitioners' bare assertions are insufficient to demonstrate a flaw in preparedness.
Personnel changes, modifications in the chain of consaand, and the need for continual training are all a constant part of caergency preparedness.
Neither the passage of twenty-one' months until the next scheduled full participation exercise nor bare' allegations that changes have occurred, without more, raise material issues of fact regarding the exemption I
request. Here applicant has taken numerous steps to ensure that preparedness after the May 1985 exercise remains adequate. See, e.o., SER, s
( ).
supra, at 2.
Petitioners have not raised any material issues of fact y',.
regarding the adequacy of those measures.
3 Petitioners' single example of a speciffe change is the transfer of,
responsibility for traffic control in Lee County from the Police Chief to s
l the Sheriff. By itself this switch does not raise a material issue of fact. Applicant points out that this change does no more than reverse primary and secondary responsbility, and petitioners have advanced no evidence to show'that the Sheriff will be unable to fulfill the primary responsibility.
Indeed, the SherMf's ' participation,in traffic control in the May 1985 exe'rcise demonstrates' his capabilities in that role. Hence petitionershavefai$edtoraiseamaterialissueoffactregardingthe exemption.
u I
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s 15 Petitioners' third argument concerns responsibility for evacuation and management of the Jordan Lake recreational area. Petitioners state that the Chairman of the Board of Comissioners, Chatham County, has stated that the County will take no responsibility for the Jordan Lake recreational area, and that these statements contradict the provisions under the plan.
Petitioners have made no attempt to draw a nexus between their concerns and i
i the exemption request, and their allegation fails to raise a material issue i
of fact. First, such alleged statements, without more, are insufficient to raise a material issue of fact regarding whether Chatham County will
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fulfill its responsibilities. Second,.even if Chatham County took no responsibility for the Jordan Lake recreational area, as petitioners
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assert, applicant points out that there would still be a large complement of other available resources. For instance, the North Carolina Wildlife l
Resources Comission has direction and control of emergency operations at Jordan Lake, with assistance provided by the State Division of Forest Resources, the Jordan Lake Division of the Amy Corps of Engineers, and the
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Division of Parks and Recreation. Petitioners have not suggested why another exercise is needed in view of the complement of available resources.
Petitioners' fourth argument is that public statements by the l
President, CP&L, contradict provisions of the emergency plan, and require another full participation exercise to avoid confusion and to reassure the public. The two alleged statements are that (1) in a worst case discharge, evacuated residents would be able to return the day after the accident, and (2) in the event of a radiological discharge, persons living more than two miles from the site might be safe.
t
^o 16 Again, petitioners fail to explain how these alleged statements, even if made, relate to the exemption request at issue here.
Exercises are not conducted for the education of the public, but to test the emergency workers who would actually respond in the event of an emergency. Moreover, petitioners have failed to explain how a lack of confidence in the emergency plan among some members of the public, if true, would constitute a flaw in planning that would be tested by another exercise.
In fact, it 1
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is not apparent why another exercise, if successful, would achieve any more public confidence than the exercise already held.
"etitioners' fifth argument concerns revisions in the plan after the i
May 1985 exercise regarding what hospitals and medical facilities would be
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available to provide decontamination and medical services. Petitioners assert that questions have arisen regarding whether binding commitments with Chatham Hospital have been reached, and whether North Carolina Memorial Hospital is willing to participate to the extent required by the plan, since it is willing to treat only persons in need of in-patient l
l treatment.
Applicant responds to this argument by stating that negotiations toward arrangements with Chatham Hospital are ongoing, and by noting that the existing plan does not rely on Chatham Hospital for the treatment of contaminated persons. Since the existing plan does not rely on Chatham Hospital, questions regarding the commitments by Chatham Hospital are i
irrelevant to whether the exemption request should be granted. With regard to North Carolina Memorial Hospital, that hospital's policy is consistent with the NRC's regulatory guidance, which provides for separate, non-medical facilities for monitoring and decontamination of the general
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17 public. See NUREG-0654, Criterion J.12. The Hospital's policy seems to be a reasonable allocation of resources, and certainly does not suggest a flaw in the plan, or raise a question regarding the exemption request at issue here.
Petitioners' sixth argument relies on affidavits of county employees subsequent to the May 1985 exercise which state that they will participate in exercises, but not in actual emergencies. Again, petitioners fail to draw a nexus between their allegation and the exemption request at issue.
Holding another exercise in which these workers will participate is irrelevant to the question raised by petitioners, which is whether they would participate in an actual emergency.
Petitioners' seventh argument is based on the growth in population in 1
and near the Emergency Planning Zone since May 1985.
Petitioners appear to be arguing that a full participation exercise is necessary to educate and assure those who have moved into the area since the May 1985 exercise, and to determine whether the major roadways can handle the current population in the event of an evacuation. As stated supra, exercises are j
not training tools for the public. The Commission's regulations do not require public participation in exercises, see 10 C.F.R. Part 50, App. E, 5 IV.F.1, and the exercises do not test the adequacy of the roadway systems. Thus again petitioners have failed to establish any linkage between their concerns and the exemption request.
Finally, petitioners maintain that subsequent to May 1985 the on-site fire service provider (Apex Fire Department) has withdrawn and been replaced by another fire service provider (Fuquay-Varina Rural Fire Department). Petitioners assert that the replacement fire service company
18
)
l must be tested through an exercise. However, there is no requirement that all fire departments participate in all exercises.
Indeed, CP&L points out that in the present case it was the Holly Springs Fire Department, another onsite fire service provider, which participated in the May 1985 exercise, and that the Apex Fire Department did not even participate in that exercise. Thus the change from the Apex Fire Department to the i
Fuquay-Varina Rural Fire Department has not occasioned a loss of exercise experience.
Petitioners do not identify which significant facts are in dispute, the basis for any such facts, nor what it is that the
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Fuquay-Varina Rural Fire Department cannot do and why it cannot perform its assigned function. The Consnission therefore concludes that there are no material issues of fact presented here regarding this exemption request.11 III. Sunenary Petitioners have failed to raise any material issue of fact regarding whether this exemption request should be granted. Rather, they have raised j
concerns without any supporting factual basis, minor problems, and issues that are unrelated to the exemption request at issue here.
In the absence i
of a material issue of fact, the Consnission concludes that there would be 11Petitioners also argue that the State's efforts to evacuate Bogue Banks in anticipation of Hurricane Charlie were inadequate, and that this demonstrates that a full participation exercise for Shearon Harris is required. Petitioners have failed to show any connection between the State's efforts regarding Hurricane Charlie and preparedness at Shearon Harris.
4 19 no purpose in initiating a hearing on the exemption request. Accordingly, the request for a hearing is denied.
Comissioner Asselstine was not available to participate in this Order.
It is so ORDERED.
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// JOHN C. MOYLE 1.*
g ActingC5ecretary of the Comission
+....
Dated at Washington, D.C.
this d b day of b a d r, 1986.
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