ML20206J364

Response Opposing Conservation Council of North Carolina & W Eddleman 860609 Motion to Stay All Power Operations Per ASLB 860428 Final Decision.Motion Fails to Show Single Significant Safety Issue.W/Certificate of Svc

ML20206J364
Person / Time
Site:	Harris
Issue date:	06/24/1986
From:	Barth C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC COMMISSION (OCM)
References
CON-#286-689 OL, NUDOCS 8606270133
Download: ML20206J364 (8)

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UNITED STATES OF AMERICA ,

NUCLEAR REGULATORY COMMISSION ,

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BEFORE THE COMMISSION 4 ruxems rl Q M j.~ ~ ~ u L1 0C; "'~ ' ' py,f

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In the Matter of ) / T

~_-], c \f y at;ng .8-CAROLINA POWER AND LIGHT )

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

AGENCY )

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(Shearon Harris Nuclear Power Plant, )

Unit 1) )

NRC STAFF RESPONSE IN OPPOSITION TO MOTION OF CONSERVATION COUNCIL OF NORTH CAROLINA AND WELLS EDDLEMAN TO STAY ALL POWER OPERATIONS a

Charles A. Barth Counsel for NRC Staff l

June 24,1986 86g62'g y gg@l$$oof Po" S

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l UNITED STATES OF AMERICA (' I .

NUCLEAR REGULATORY COMMISSION 2 JCU S ^ :s" .37 J BEFORE THE COMMISSION 'U i_i . .d~

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In the Matter of )

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CAROLINA POWER AND LIGIIT )

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

AGENCY )

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(Shearon Harris Nuclear Power Plant, )

Unit 1) )

NRC STAFF RESPONSE IN OPPOSITION TO MOTION OF CONSERVATION COUNCIL OF NORTH CAROLINA AND WELLS EDDLEMAN TO STAY ALL POWER OPERATIONS I

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4 Charles A. Darth Counsel for NRC Staff June 24,1986

g\ M [f y, UNITED STATES OF AMERICA 1 NUCLEAR REGULATORY COMMISSIQkf v ibpr ~ -

BEFORE THE COMMISSION g os e.

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. ,kE In the Matter of ) 4 D

, CAROLINA POWER AND LIGHT

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" I iM[g COMPANY AND NORTH CAROLINA ) Docket No. 50-400 L EASTERN MUNICIPAL POWER )

AGENCY )

)

(Shearon Harris Nuclear Power Plant, )

Unit 1) )

NRC STAFF RESPONSE IN OPPOSITION TO MOTION OF CONSERVATION COUNCIL OF NORTH CAROLINA AND WELLS EDDLEMAN TO STAY ALL POWER OPERATIONS INTRODUCTION On June 9, 1986 Conservation Council of North Carolina (CCNC),

Joint Intervenors and Wells Eddleman, intervenors in this proceeding, pursuant to 10 C.F.R. I 2.764(f) moved the Commission to stay all power l

operations authorized by the " Final Licensing Board' Decision" dated April 28, 1986 in this proceeding. The NRC Staff's response in opposition follows:

. BACKGROUND The Licensing Board issued its fourth and " Final Licensing Board Decision" (Final PID) on April 28, 1986. That decision resolved the outstanding remaining admitted contentions, and authorized the Director of NRR to issue licenses for the operation of Ilarris.

l

l By a filing styled " Request To Continue Stay Indefinitely" dated June 9, 1986 Conservation Council of North Carolina (CCNC), Joint Intervenors b and Mr. Eddleman who was also a party to the motion to the Appeal Board for a stay, pursuant to 10 C.F.R. I 2.788, mEved the

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Commission to stay all authorizations for operation, including low power operation, until the Commission completes its immediate effectiveness review and has resolved the issues raised in CCNC and Eddleman's

" Comments on Immediate Effectiveness Review" dated June 9,1986.

DISCUSSION The " Final Licensing Board Decision" Order which is sought here to be stayed was issued on April 28, 1986. The Motion to the Commission to stay was dated June 9, 1986. 10 C.F.R. I 2.788, here applicable to staying operation up to 5% of rated power, requires that the application for a stay be filed within 10 days (plus 5 for mail) of service of the decision. Thus the motion to the Commission is some 37 days late. In their motion intervenors made no demonstration of good cause for being 37 days late. Upon this ground alone Intervenors' motion should be ilenied.

The Commission's criteria for a stay of operation up to 5 percent of rated power are set forth in 10 C.F.R. I 2.788(e)(1)-(4). The Motion by

. Intervenors makes no attempt to address the criteria of 10 C.F.R.

d 5 2.788(e)(1)-(4). In Philadelphia Electric Company (Limerick Generating {

, . I Station , Units 1 and 2), CLI-86-6, 23 NRC 130, 134 (1986), the Commission stated:

1 1/ The Motion is not signed on behalf of Joint Intervenors.

" . . . petitioners in their motion did not address

, the criteria for a stay set forth in 10 C.F.R.

I 2.788. In light of their failure to do so, summary denial of their request is appropriate."

See also in accord Limerick , supra, ALAB-814, 22 NRC 191, 193 n.1

) (1985). For failure to address the criteria in 10 C . F.R. I 2.788, the motion for a stay of operation up to 5% of rated power should be summarily denied.

The Commission's criteria for a stay of the immediate effectiveness of a Licensing Board's decision authorizing operation above 5% of rated power are set forth in 10 C.F.R. I 2.764(f)(1)(i). 2_/ The intervenors have completely failed to address this criteria. The rationale set forth in Limerick, supra, CLI-86-6 and ALAB-814, for summarily denying a motion for a stay where the proponent of the stay request does not address the requisite criteria it qually applicable here. Accordingly, that part of the i

motion which seeks a stay of operation above 5 percent of rated power should be summarily denied for failure to address the requisite criteria.

The Intervenors' Motion concludes " Support for this motion lies in l

our comments on Immediate Effectiveness Review and our proposed

findings and briefs. " This wholesale incorporation by reference of hundreds of pages from previously filed documents without any f

identification of what fact or argument its those documents relate to the l

current motion is unacceptable. This practice leaves uncertain exactly what is the basis for the ' motion and what eviaence or authorities Intervenors rely on to support their arguments, thus making inte!11 gent l

-2/ See Philadelphia Electric Company (Limerick Generating Station ,

Units 1 and 2) CLI-85-13, 22 NRC 1, 2.n.1 (1985).

1

response difficult and placing the other parties at an unfair disadvantage.

For this additional reason, the motion should not be entertained and should be summarily denied. Public Service-Electric and Gas Company,

) 6 et al. Hope Creek Generating Station, Units 1 and 2) ALAB-394, 5 NRC

. 769 (1977), and Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1 and 2) LPB-72-10, 3 NRC 200, 216 -(1976).

CONCLUSION 3

Intervenors' motion falls to address and make out a strong case of the stay criteria of 10 C.F.R. I 2.788 for operation up to 5% of rated power and the stay criteria of 10 C.F.R. I 2.764)f)(1)(1) for operation above 5% of rated power. The motion provides no factual support for the relief requested and impermissibly purports to incorporate by reference ,

hundreds of pages of documents filed by intervenors over the past four 1

and a half years. Further, the Intervenors' motion does not demonstrate I the existence of a single significant safety issue which could possibly provido a basis to stay the operation of the Harris facility.

For these reasons the motion of CCNC and Wells Eddleman for a stay of the operation of the Ilarris facility should be denied.

Respectfully submitted.

r o

Charles A. Da h Counsel for NRC Staff Dated at Bethesda, Maryland this day of June,1986

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

, In the Matter of )

)

CAROLINA POWER AND LIGHT )

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

AGENCY )

)

(Shearon Harris Nuclear Power Plant, )

Unit 1) )

4 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE IN OPPOSITION TO MOTION OF CONSERVATION COUNCIL OF NORTH CAROLINA AND WELLS EDDLEMAN TO STAY ALL POWER OPERATIONS" 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 Regulatory Commission's internal mail system, this 24th day of June,1986:

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 O. Bright

• Travis Payne, Esq.

Administrative Judge _

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

• Dr. Linda Little Administrative Judge Governor's Waste Management Building i 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 l P.O. Box 2151 307 Granville Rd.

Raleigh, NC 27602 Chapel Hill, NC 27514 l

Steven Rochlis, Esq. H. Joseph Flynn, Esq.

Regional Counsel Associate General Counsel FEMA Office of General Counsel 1371 Peachtree Street, N.E. FEMA Atlanta, GA 30309 500 C Street, S.W. Rm 840 Washington, DC 20472-

• Atomic Safety and Licensing Appeal Bradley W. Jones, Esq.

. Board Panel

• Regional Counsel, USNRC, Region 11 U.S. Nuclear Regulatory Commission 101 Marietta St. , N.W. Suite 2000 Washington, DC 20555 Atlanta, GA 30323 Robert P. Gruber 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 812 Yancy Street Panel

• Durham, NC 27701 U.S. Nuclear Regulatory Commission Washington, DC 20555 Richard E. Jones, Esq. H . A . Cole , Jr . , Esq .

Vice President and Senior Counsel Special Deputy Attorney General Carolina Power & Light Company P.O. Box 629 411 Fayetteville Street Mall Raleigh, NC 27601 Raleigh, NC 27602 Office of the General Counsel Samuel J. Chilk*

U.S. Nuclear Regulatory Commission Secretary of the Commission Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 M

Charles A. Barth 8 Counsel for NRC Staff n

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