ML20126F232

Answer Opposing Conservation Council of North Carolina 850524 Motion to Stay Proceedings on Contention WB-3 Re Drug Use at Facility Until Drug Charges Against Persons Arrested on 850110 Resolved.Certificate of Svc Encl

ML20126F232
Person / Time
Site:	Harris
Issue date:	06/06/1985
From:	Barth C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#285-443 OL, NUDOCS 8506170407
Download: ML20126F232 (11)

Text

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'es June 6, 1985 i.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD E ED In the Matter of NYN]C u

CAROLINA POWER AND LIGHT COMPANY AND .. . ._

NORTH CAROLINA EASTERN MUNICIPAL Docket Nos. 50-400 OL '85 JW 13 P4:44 POWER AGENCY 50-401 OL (ShearonHarrisNuclearPowerPlant, F f0CQ**Cg,]Q-Units 1and2) ) guncy NRC STAFF ANSWER IN OPPOSITION TO CONSERVATION COUNCIL OF NORTH CAROLINA'S MOTION TO STAY PROCEEDINGS ON CONTENTION WB-3 (DRUG USE)

I. INTRODUCTION By filing dated May 24, 1985 Conservation Council of North Carolina (CCNC) has moved to stay all proceedings on Contention WB-3 relating to drug use at the Harris site until drug use charges against persons arrested at the Harris site on or about January 10, 1985 have been resolved. The Staff opposes CCNC's request for a stay on the ground that the criteria for the grant of such a stay are not met.

II. BACKGROUND The Raleigh News and Observer on January 11, 1985 published an article which stated that six workers at the Harris site had been arrested on drug charges. Citing this newspaper article, Mr. Runkle on behalf of CCNC, proffered the following contention:

WB-3 Drug and alcohol use at the Harris Plant is widespread (see the attached newspaper article for details and basis).

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Construction workers under the influence of drugs are less able to follow proper procedures and tech specs for the installation of electrical systems, pipefitting, and other safety-related work. Applicants' management has failed to control drug use during the construction and further, has failed to reins)ect all safety-related work done by known drug abusers. Request For Admission of New Contention WB-3 (Drug Abuse During Construction), January 18,1985.]

The Staff -- I/

by filing dated February 7,1985 and the Applicants 2/ by

' f.iling dated February 6,1985 opposed admission of the contention upon _

the basis that the five factors of 10 C.F.R. 5 2.714(a)(1) required to be considered for late filed contentions weighed against admission of the contention and that both basis and specificity were lacking. In an order 1/ ated d March 13, 1985 the Licensing Board admitted the contention, deleting the reference to alcohol. The parties have served interroga-toriesuponeachother.S/ Applicants and CCNC have responded to each

-1/ NRC Staff Response in Opposition to Conservation Council of North Carolina's Motion to Admit Proffered Contention WB-3 Regarding Drug Use.

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-2/ Applicants' Rasponse to CCNC's Re m ?t for Admission of New Contention WB-3 (Drug Use During tot truction).

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Memorandum Generators, Drugand Use Order (Rulins .'.,

and Harassment t ,intions at the Concern'ing)

Harris Site . Diesel 4/ NRC Staff Interrogatories to Conservation Council of North Carolina Regarding Contention WB-3, April 24, 1985; Discovery Requests to Applicants on Contention WB-3 (Drug Abuse During Construction),

May 1, 1985; Applicants' Interrogatories and Request for Production of Documents to Intervenor Conservation Council of North Carolina (Contention WB-3), May 1, 1985.

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..: .others interrogatories. E Discovery is now closed. Issue has been joined and Contention WB-3 is now ripe for summary disposition or trial.

At.this-juncture, with the contention ready to be resolved by an evidentiary hearing, CCNC has moved to stay the proceedings on this' drug use contention luntil charges against persons arrested on January 10, 1985'on the Harris' site have been resolved. The Staff opposes the

. motion.

III. DISCUSSION A. Legal Standards The Commission's legal standards for a stay of a proceeding are set forth in 10 C.F.R. 9 2.788(e) which reads as follows:

(e) In determining whether to grant or deny an application I for a stay, the Commission, Atomic Safety and Licensing Appeal Board,- or presiding officer will consider:

(1) Whether the moving party has made a strong showing L that it is likely.to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties; and (4) Where the public interest lies.

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Applicants' Answers to Conservation Council's Discovery Requests to Applicants on Contention WB-3 (Drug Abuse During Construction),

May 20, 1985; Conservation Council's Answers to Applicants' Discovery Requests on Contention WB-3, May 24,1985.

_.__________.____m- _ . _

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, l These standards have been rigidly applied since their adoption. E 10 C.F.R. 6 2.788(d) . requires that this answer address the matters of 92.788(b)(1)-(4). These generally are framed for a stay of a particular action pending appeal, a situation not here present. 6 2.788(b)(1)-the action which is. sought to be stayed is the operating license administra-tive proceeding insofar as it relates to the drug use contention, WB-3.

The ground asserted for stay seems to be that CCNC wants a sheriff's department major and the charged persons to testify. This seems unrelated to whether the plant is built safely and whether applicants' have an adequate drug information, detection and prevention plan.

9 2.788(3) and (4) relate to appeals and are not addressed here. CCNC's application for a stay did not directly address the i 2.788(b)(1)-(4) considerations except to identify that they wanted the proceeding itself stayed.

The title to 6 2.788 and subpart (a) are in terms of staying a decision or action pending appeal. The motion of CCNC now before this Board is not for a stay of an action or decision pending appeal. The present 10 C.F.R. Q 2.788 criteria for a stay are those enumerated in Virginia Jobbers Ass'n v. FPC, 295 F.2d 921, 925 (D.C. Cir.1958) and first applied by the Appeal Board in Allied-General Nuclear Services

-6/ Most recently, see Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2), ALAB-794, 20 NRC 1630, 1632-1633 (1984);

Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1),

CLI-84-21, 20 NRC 1437, 1440 (1984); Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-789, 20 NRC 1443, 1446 (1984); and Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No.1), CLI-84-17,- 20 NRC 801, 803 (1984).

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.- (Barnwell Facility), ALAB-296, 2 NRC 671, 677-78 (1975) (Barnwell). 7/

i In B_arnwell Intervenors requested a stay of the Licensing Board j proceedings, not of a Licensing Board decision or action. In Midland ALAB-395, cited supra fn. 7, the Appeal Board required consideration of the four factors of Q 2.788(e) in a situation where a stay was requested of proceedings pending before a Licensing Board, not where a stay was sought pending appeal of a decision. Thus it is clear that CCNC's motion must be analyzed against the stay criteria set forth in 10 C.F.R. 5 2.788(e).

A second legal principle involved in CCNC's motion is to be found in Wisconsin Electric Power Company (Koshkonong Nuclear Plant, Units 1 and 2), CLI-74-45, 8 AEC 928, 929 (1974) where the Conunission stated as a general rule that its administrative proceedings were to proceed while other state and local proceedings were underway.

B. CCNC's Motion The argument of CCNC which accompanies their May 24, 1985 motion does not address the criteria of 10 C.F.R. 6 2.788(e), nor does it even feign to do so.

There is nothing new in this record or in CCNC's filing of May 24, 1985 that would indicate that CCNC might prevail upon the merits if a 7/ See Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-395, 5 NRC 772, 778-79 (1977) and the Statement of Considerations that accompanied publication of 10 C.F.R. 5 2.788 in the Federal Register, 42 Fed. Reg. 22128, May 2, 1977. Q 2.788 is, in fact, a codification of the Appeal Board's Barnwell decision.

stay were granted. The newspaper article attached to proffered WB-3 stated that six persons were arrested upon drug charges. The newspaper does not address the capability of the arrested persons correctly to perform their assigned tasks, whether those tasks involve safety-related work, and whether Applicants re-inspected work performed by the arrested persons. In fact, thus far, CCNC has demonstrated no merit at all to its contention. The total and sole basis supporting the admitted contention is the Raleigh News and Observer January 11, 1985 article attached to the proffered contention. 8_/ Having no case except for a newspaper clipping9 /

it seems highly improbable that CCNC can carry its contention to victory, especially such parts as the allegation that the Applicants have failed to reinspect safety-related work done by known drug users.

There is no showing that CCNC will be irreparably injured if the stay is denied. Nor can the Staff conjure how such possible injury could occur.

The stay could prolong this proceeding for some time. Granting the stay could delay issuance of the operating license.

The public interest lies in expeditiously concluding this operating license proceeding. The Commission has articulated its policy that licensing reviews and hearings should be completed prior to completion of 8_/ See CCNC Answer 4(b) to Applicants' Interrogatories cited supra.

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In Illinois Power Company (Clinton Power Station, Unit Nos. I and 2), ALAB-340, 4 NRC 27, 31 (1976) the Appeal Board found that newspaper clippings were relevant and material evidence. There there was other evidence. Here the newspaper clipping is CCNC's entire case.

j construction. El Granting the motion for a stay would delay the fuel load date for Harris which is now set for March 11, 1986.

The Staff's review of the stay criteria set forth in 10 C.F.R. 6 2.788 ' discloses that all criteria weigh against granting the motion.

Prosecution or non-prosecution of those persons arrested on January 11, 1985 upon drug charges is (1) a matter independent of and not relevant to NRC's concern under the Atomic Energy Act which is the safe construction and operation of Harris and (2) a state and local matter which may and should proceed to resolution independent of NRC's licensing proceeding, see Koshkonong, CLI-74-45 cited supra.

There are two further considerations that should be factored into resolution of CCNC's motion. First, the motion attempts to raise matters not relevant or material to the issue before this Licensing Board.

Contention WB-3 raises two issues: (a) whether there is an adequate drug education and detection program at Harris and (b) whether Applicants adequately reinspected safety related work performed by known drug users.

Resolution of the criminal charges against those arrested for drug use in January 1985 has no bearing upon the issues raised by Contention WB-3.

Issue has been joined and now is the time for CCNC to put forth its substantive case, either in opposition to a motion for summary disposi-tion or at trial. Either CCNC has a case to support its Contention WB-3 or its doesn't. Now is the time to find out. Ultimate disposition of 10/ Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8,

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13 NRC 452 (1981).

the drug use charges is not relevant to the issues before this Licensing Board.

IV. CONCLUSION For all of the above reasons, the Licensing Board should deny CCNC's motion to stay the proceedings on Contention WB-3 until final resolution of the criminal charges placed against those persons arrested at the Harris site in January 1985 for drug use.

Respectfully submitted, B

Counsel for NRC Staff Dated at Bethesda, Maryland this 6th day of June,1985

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 00LKETED USNRC In the Matter of )

CAROLINA POWER AND LIGHT COMPANY AND NORTH CAROLINA EASTERN MUNICIPAL ) Docket Nos. 50-400 OL 1Mi JUN 13 P4:44 POWER AGENCY' 50-401 OL OFFICE OF SECRETAF-00CKElmG & SERVid (Shearon Harris Nuclear Power Plant. BRAtlCH Units 1 and 2)

I hereby certify that copies of "NRC STAFF ANSWER IN OPPOSITION TO CONSERVATION COUNCIL OF NORTH CAROLINA'S MOTION TO STAY PROCEEDINGS ON CONTENTION WB-3 (DRUG USE)" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or deposit in the Nuclear Regulatory Commission's internal mail system (*), this 6th day of June,1985:

' 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 .

Mr. Glenn 0. Bright

• Travis Payne, Esq.

Administrative Judge 723 W. Johnson Street Atomic Safety and Licensing Board P.O. Box 12643 U.S. Nuclear Regulatory Commission Raleigh, NC 27605 Washington, DC 20555 Dr. James H. Carpenter

• Dr. Linda Little Administrative Judge Governor's Waste Management Building Atomic Safety and Licensing Board 513 Albermarle Building U.S. Nuclear Regulatory Commission 325 North Salisbury Street Washington, DC 20555 Raleigh, NC 27611 Daniel F. Read John Runkle, Esq. Executive Coordinator CHANGE Conservation Counsel of North Carolina P.O. Box 2151 307 Granville Rd.

Raleigh, NC 27602 Chapel Hill, NC 27514 l Steven Rochlis Spence W. Perry, Esq. l Regional Counsel Associate General Counsel FEMA Office of General Counsel 1371 Peachtree Street, N.E. FEMA Atlanta, GA 30309 500 C Street, SW Rm 840 Washington, DC 20472 l

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'.- Atomic Safety and Licensing Appeal Bradley W. Jones, Esq.

Board Panel

• Regional Counsel, USNRC, Region II U.S. Nuclear Regulatory Commission 101 Marietta St., N.W. Suite 2900 Washington, DC 20555 Atlanta, GA 30323 Robert P. Gruber George Trowbridge, Esq.

Executive Director Thomas A. Baxter, Esq.

Public Staff - NCUC John H. O'Neill, Jr., Esq. '

P.O. Box 991 Shaw, Pittman, Potts & Trowbridge

.Raleigh, NC 27602 1800 M Street, N.W.

Washington, DC 20036 Wells Eddleman Atomic Safety and Licensing Board 718-A'Iredell Street Panel

• Durham, NC 27701 U.S. Nuclear Regulatory Commission Washington, DC 20555 Richard E. Jones, Esq. Dr. Harry Foreman, Alternate Associate General Counsel Administrative Judge Carolina Power & Light Company P.O. Box 395 Mayo P.O. Box 1551 University of Minnesota Raleigh, NC 27602 Minneapolis, MN 55455 Robert Guild, Esq.

Counsel for Contention 41-G 21351 Devine Street Columbia, SC 29201 Charles A. Barth Counsel for NRC Staff