ML20207J828

Response Opposing W Eddleman 860403 Request for Hearing on Util Request for Exemption from Emergency Preparedness Exercise Requirement.W/Certificate of Svc

ML20207J828
Person / Time
Site:	Harris
Issue date:	07/24/1986
From:	Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC COMMISSION (OCM)
References
CON-#386-120 OL, NUDOCS 8607290268
Download: ML20207J828 (12)

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00LKETED USNRC i.

UNITED STATES OF AMERICA W JA. 25 N1:09 NUCLEAR REGULATORY COMMISSION OFFICE OF Ef t!ARy BEFORE THE COMMISSION 00CKETING A SE8vicf.

BRANCH In the f.Intter of )

)

CAROLINA POWER AND LIGIIT )

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

AGENCY )

)

(Shenron Harris IIuclear Power Plant, )

Unit 1) )

NRC STAFF RESPONSE TO Y! ELLS EDDLEMAN'S REQUEST FOR A HEARING ON APPLICANTS' REQUEST FOR EXEF!PTION FROM TIIE REQUIRE?!ENT FOR AN EMERGENCY PREPAREDNESS EXERCISE Janice E. Moore

• Counsel for NRC Staff July 24, 1980 8607290268 860724 0 DR ADOCK 0500

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DOLMETEP USNHC 16 JA. 25 N1iO9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF SEstlAHY 00CKETING & SERVICL BRANCH BEFORE THE COMMISSION In the Matter of )

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CAROLINA POWER AND LIGHT )

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

AGENCY )

)

(Shearon Harris NucIcar Power Plant, )

Unit 1) )

NRC STAFF RESPONSE TO WELLS EDDLEMAN'S REOUEST FOR A HEARING ON APPLICANTS' REQUEST FOR EXEP!PTION FROM TIIE REQUIREPIENT FOR AN EMERGENCY PREPAREDNESS EXERCISE Janice E. Moore Counsel for NRC Staff July 24, 1980

e 07/24/86 i- UNITED STATES OF AMERICA NUCLEAR REGULATORY COMP.HSSION BEFORE THE COf! MISSION In the Matter of )

)

CAROLINA POWER AND LIGHT )

CCMPANY AND HORTH CAROLINA ) Docket No. 50-400 OL EASTERN MUNICIPAL POWER )

AGENCY )

)

(Shearon Harris Nuclear Power Plant, )

Unit 1) )

NRC STAFF RESPONSE TO WELLS EDDLEMAN'S REQUEST FOR A HEARING ON APPLICANTS' REQUEST FOR EXEMPTION FROM THE REQUIREMENT FOR AN EMERGENCY PREPAREDNESS EXERCISE I. INTRODUCTION By letter dated April 3,1986, Wells Eddleman requested a hearing on the Application of Carolina Power and Light Company and North Carolina Eastern Municipal Power Agency (Applicants) for an exemption from the requirements of 10 C.F.R. Part 50, Appendix E, 5 IV.F.1 pertaining to the need for a full participation emergency preparedness exercise within one year before the issuance of a full power license , and prior to exceeding 5% of rated power. Letter to Harold R. Denton from Wells Eddleman [ hereinafter Eddleman Letter] . For the reasons set forth below , the Staff opposes Mr. Eddleman's request for a hearing on the Applicants' exemption request.

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- II. BACKGROUND On f. lay 17-18, 1985, Applicants conducted a full participation This emergency preparedness exercise at the Shearon Harris facility.

exercise was conducted to satisfy the requirement for a full participation exercise within one year before the issuance of a full power operating license contained in 10 C.F.R. Part 50, Appendix E, 5 IV.F.1 of the Commission's regulations. At that time Applicants estin ated that they would load fuel in March of 1986. Applicants experienced a slip in their scheduled fuel load date and are now estimating fuel load for no earlier than late August or early September 1986. Applicants will be ready for full power operation and will need appropriate authorization at a still later date . This means that they will not have conducted a full participation exercise within one year before the issuance of a full power license and prior to exceeding 5% of rated power.

March 4, 1986, Applicants filed for exemption from the On requirement in 10 C .F.R. Part 50, Appendix E, 5 IV.F.1. Letter to Harold R. Denton , Director. Office of Nuclear Reactor Regulation from A.B. Cutter, Vice President , Nuclear Engineering and Licensing, Carolina Power and Light Company (March 4,1986) [ hereinafter Exemption Request] . In their Exemption Request Applicants addressed the criteria in exemption requests .

10 C.F.R. 5 50.12 for the consideration of Mr. Eddleman requested a hearing on the Exemption Request. Eddleman Letter at 1. The Staff forwarded Mr. Eddleman's request for a hearing to the Commission for its consideration. Memorandum for Samuel J.

Chilk , Secretary, Through Victor J. Stello, Jr. , Executive Director for Operations , From Edward S. Christenbury, Director and Chief Counsel, 15, 1986).

IIearing Division, Office of the Executive Legal Director (f fay

t Subsequently, Applicants requested in a June 10, 1986 letter that the NRC Staff hold in abeyance active review of the Exemption Request and the request for a hearing on the Exemption Request. This informa-

, tion was transmitted to the Commission for its consideration. Memorandum for Samuel J. Chilk, Secretary, through Victor J. Stello, Jr., Executive Director for Operations, from Edward S. Christenbury, Director and Chief Counsel, IIearing Division, Office of the Executive Legal Director (June 16, 1980) . Finally, Applicants requested in a July 10, 1986 letter that the NRC Staff resume active review of the request for exemption.

This information was transmitted to the Commission. Memorandum for Samuel J. Chilk , Secretary, from Edward S. Christenbury, Assistant General Counsel for IIearings (July 17, 1986).

Applicants responded to Mr. Eddleman's request as though it were a petition filed pursuant to 10 C.F.R. I 2.206, and contended that the henring request should not be granted. " Response by Carolina Power and 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).

W. DISCUSSION In his letter Mr. Eddleman argues that the grant of this exemption without a hearing would violate his and the public's right to a hearing under Section 189(a) of the Atomic Energy Act of 1954 as amended, He appears to (AEA) 42 U.S.C. section 2239. Eddleman Letter at 1.

4 base this argument on his view that this exemption would be akin to an amendment of the license application. Id. Further, he argues that since

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the issuadee of a license is premised on compliance with the regulations, the avoidance of compliance with the regulations would be a substantial amendment to the license. Id. at 2. For these reasons, Mr. Eddleman argues an action granting an exemption would require a hearing under Section 189(a) of AEA. Id. at 1.

-The Staff does not agree with Mr. Eddleman's arguments. The exemption provision in 10 C.F.R 5 50.12(a) is the Commission's mechanism for providing relief from a particular regulation in those cases where no undue risk to the public would result , and where it would not be equitable or in the public interest to require literal adherence to a specific regulation. It has been longstanding Commission policy and practice that no mandatory hearing rights attach to an action concerning the denial or grant of an exemption.1 Rather, under Section 189(a) of the AEA, in order to establish that there is a right to a hearing on an exemption , the proponent of the hearing request must show that the request is part of either 1) "a proceeding for the granting, suspending, revoking, or amending of any license" 2_/ or 2) "a proceeding for the issuance or modification of rules or regulations dealing with the activities of licensees." With regard to the latter alternative, as emphasized in the Commission's rulemaking to aHow for the use of the exceptions to notice 1/ The Commission's policy and practice is consistent with that of other federal agencies. See e_. g_. Coppenbarger v. Federal Aviation Administration, 558 F.F838 (1977) .

Department of Energy, Project Management United States Corporation, Tennessee Valley Authority (Clinch River Breeder

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Reactor Plant), CLI-82-23,16 NRC 412, 421 (1982).

i 0 contained in the Administrative Procedure Act, and commbt rulemaking this provision of Section 189(a) of the AEA applies only to those situations where a Commission rulemaking specifically amends reactor licenses , as opposed to those situations where a regulation, although applicable to reactor Ifcensees, does not affect the actual content of 50 Fed. Reg. 13006, 13008, April 2, 1985. Thus, it is the license.

incumbent upon Mr. Eddleman to show that the exemption request in ques-i j tion mcets one of these alternatives in order for the Commission to grant his request for a hearing on the Exemption Request. Mr. Eddleman has not made such showing. The exemption under consideration affects no existing license or authorization; it is needed and would become operative if Applicant in fact meets its currentl'y projected schedule for full powcr operation or otherwise is ready for such operation before another full participation exercise is conducted. Accordingly, the exemption, considered alone , does not involve a proceeding for which hearing rights are accorded by Section 189(a) of the AEA.

3/ The amendment to 10 C.F.R. I 2.804 responded to the holding of the l Court of Appeals for the District of Columbia Circuit in Union of Concerned Scientists v. Fuclear Regulatory Commission, 711 I'.2d 370

- (D.C. Cir . 1983). In that case the Court reviewed a Commission

!. rulemaking which amended all operating licenses by suspending indefinitely the deadline for completion of environmental qualification of electrical equipment. The Court found the rulemaking defective i

since the Commission had failed to provide notice and opportunity for comment before promulgation of the interim rule which was the subject of the case. Id. at 379. The Court pointed out that this interim rule plainly constituted a proceeding for the amendment of a license under Section 189, since it excised from all operating licenses a completion date placed into reactor licenses by means of a Commission order. Id. at 380. The Commission has interpreted the Court's holding narrowly, confining it to those rulemakings which I specifically amend licenses. 50 Fed. Reg. 13006 (April 2, 1985).

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J lt is~also necessary to consider the effect of the Exemption Request on the current on-going " proceeding" for the issuance of an operating Ilcense and to determine whether such effect raises hearing rights. The 8 IV.F, regulation in question here, 10 C . F. R . Part 50 Appendix E, could be interpreted to require that an exercise be conducted within one year of issuance of the power license and that the determination as to whether to grant a full power operating license be based on that exercise. In such a situation, since that exercise would be material to licensing, the decision of the Court of Appeal for the District of Columbia Circuit in U.C.S. vs. NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert.

denied , 105 S. Ct. 815 (1985) would require that an opportunity for a hearing be provided with respect to that exercise.

Ilowever, there is an alternative interpretation of Appendix E, 6IV.F which takes into account the practicalities of the licensing process. Given the time necessary to conduct an exercise, to receive FEB1A's findings on the exercise , and to litigate the results of the exercise, it is quite possible, as has occurred in this case, for more than a year to elapse between the first exercise and the issuance of a full

, power license. In such cases it is possible to interpret Appendix E. IV.F to 10 C.F.R. Part 50 as calling for an exercise within one year of issuance of the full power license, but that the purpose of such exercise is to provide confirmation that emergency preparedness as demonstrated by the " exercise of record" -- the exercise thoroughly evaluated by the RACs and FEf.fA and considered in the hearing -- has not deteriorated.

Under such an interpretation, the exercise on which the operating license determination is based need not be the exercise conducted within one year s

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of issuan e of the full power license but rather on an exercise of record, provided that there is confirmation closer to full power licensing that the preparedness reflected by the exercise and remedial actions taken, if necessary, has not deteriorated. The method for such confirmation called for by Appendix E, I IV.T is an exercise conducted within one year of full power licensing. In this case the licensing basis for the facility would be the exercise of record with the exercise conducted within one year of the full power license considered only if such exercise demon-strated sigtificant deterioration in emergency preparedness. O Under this interpretation if an applicant is able to demonstrate the maintenance of an adequate level of emergency preparedness by means other than a full scale exercise, that applicant could, as applicants have done here, ask for an exemption from regulation. O Since this exemption request would not concern a requirement necessary for initial licensing there is no right to a hearing concerning it. It is this interpretation of the regulation in question which the Staff suggests that the Commission adopt under the circumstances of this case. I!ere, there was a successful 1

complete full-scale exercise in which FEMA noted no major deficiencies.

Intervenors were given ample opportunity to submit contentions and

- litigate the results of the exercise, which they did. Therefore, they have had the opportunity to litigate the exercise which will be the basis

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This is similar to the effect of the two-year exercises required during the life of an operating license, which principally act as confirmation of preparedness.

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The Staff has had Applicants' exemption request under active review. The Staff's current, preliminary view is that the exemption should be granted.

for the -' issuance of the Harris license, and the holding of U.C.S. vs. NRC has been satisfied. Thus, Mr. Eddleman should not be granted a hearing as to Applicants' Exemption Request as a matter of right . In addition, Mr. Eddleman has not made a showing that he could contribute to developing a record on whether this exemption should be granted in any substantial way. Therefore, he should not be granted a hearing as a matter of discretion.

IV. CONCLUSIOli For the reasons set forth above, the Staff concludes that Mr. Eddleman is not entitled to a hearing on Applicants' Exemption Ecquest as a matter of law or discretion.

Respectfully submitted,

'3GLL-GI:9L. A/\ (TTD Janice E. Moore Counsel for NRC Staff Dated at Bethesda, Maryland this 24th day of .Tuly,1986 i

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DOCKETED USNRC i- UNITED STATES OF AMERICA W E 25 21 :09 NUCLEAR REGULATORY COMMISSION BEFORE TIIE COMMISSION OFFICE OF SECitTARY 00CKETING A SE SV!Cf.

BRANCH In the Matter of )

. )

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CAROLINA POWER AND LIGHT )

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

• EASTERN MUNICIPAL POWER )

AGENCY )

)

(Shearon Harris Nuclear Power Plant, )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO WELLS EDDLEMAN'S REQUEST FOR A HEARING ON APPLICANTS' REQUEST FOR EXEMPTION FROM THE RFQUIREMENT FOR AN EMEROFNCY PREPARED-NESS EXERCISE" 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 systen, this 24th day of July,1986:

James L. Kelley, Chairman

• Richard D. Wilson, M.D.

Administrative Judge 729 Hunter Street Atomic Safety and Licensing Board Apex, NC 27500 U.S. Nuclear Regulatory Commission 1"eshington, 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 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 CIIANGE Conservation Counsel of North Carolina P.O. Box 2151 307 Granville Rd.

Raleigh, NC 27602 Chapel Hill, NC 27514

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

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

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Atomic Safety and Licensing Appecl 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 Executive Director Thomas A. Baxter, Esq.

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

P.O. Box 991 Shaw, Pittman, Potts & Trowbridge Raleigh, FC 27002 1800 M Street, N.W.

Washington, DC 20036 UcIls Eddlenan Atomic Safety and Licensing Board 812 Yancy Street Panel

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

Vice President and Senior Counsel Special Deputy Attorney General Cerolina Power a Light Company P.O. Box 679 411 Fayctteville Street Mall Raleigh, NC 27601 Raleigh, Im 27G02 Samuel J. Chilk*

hillian C. Parler* Secretary of the Commission General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555

O MMY, nub

. Janice E. Moore Counsel for NRC Staff i

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