ML20099H768

Response to Intervenor Eddleman Motion for Reconsideration of Eddleman Contention 57-C-7.Ruling on Motion Should Be Deferred Pending Generic Commission Policy in Response to Guard Decision.Certificate of Svc Encl

ML20099H768
Person / Time
Site:	Harris
Issue date:	03/15/1985
From:	Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#185-113 OL, NUDOCS 8503190485
Download: ML20099H768 (9)

Text

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McKE TED UWC March 15, 1985

'85 KE 18 P3:38 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I[ff7hEfEB BRANCH BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of ) '

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CAROLINA POWER & LIGHT COMPANY )

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

) '

(Shearon Harris Nuclear Power )

Plant) )

APPLICANTS' RESPONSE TO INTERVENOR EDDLEMAN'S MOTION FOR RECONSIDERATION OF EDDLEMAN 57-C-7 -

I. Introduction i On March 1, 1985, intervenor Wells Eddleman filed a "Mo- i i

tion to Reconsider re Contention 57-C-7," noting the recent is-suance of the opinion of the U.S. Court of Appeals for the Dis-trict of Columbia Circuit in GUARD v. NRC, No. 84-1091 (D.C.

Cir. Feb. 12, 1985).1/ As Mr. Eddleman points out, the Court of Appeals there 1/ The mandate in the case has not yet issued. Pursuant to Rule 14 of the Rules of the U.S. Court of Appeals for the D.C. Circuit, "the Court will ordinarily include as a part of its disposition an instruction that the Clerk withhold issuance of the mandate until the expiration of the time for filing a petition for rehearing or a suggestion of the appropriateness of rehearing en banc and, if such petition or suggestion is timely filed, until seven days after dis-position thereof." The rule further provides that where (as here) "the United States, or an agency or officer l thereof, is a party, the time within which any party may l seek rehearing shall be 45 days after entry of judgment." l 8503190485 850315 gDR ADOCK 05000400 PDR

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• reject [ed] as irratio-nal the NRC's generic inter-pretation [in Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),

CLI-83-10, 17 N.R.C. 528 (1983)] of section 50.47(b)(12) with respect to members of the public ex-posed to dangerous levels of radiation.

Slip op. at 13. Observing that the Board here relied on the 4

Commission's San Onofre decision in ruling on the admissibility of Eddleman 57-C-7, Mr. Eddleman requests that the Board "re-consider and admit Contention 57-C-7 as originally drafted (or appropriately modified consistent with the Court of Appeals'

, decision)." Applicants respond herein to Mr. Eddleman's mo-tion. As set forth below, the Board should defer ruling on Mr. Eddleman's motion pending Commission guidance on the mat-ter, both for legal and policy reasons as well as practical considerations.

II. Argument In its San onofre decision, the Commission interpreted a i

specific section of its regulations, to define the scope of emergency planning for medical services for members of the gen-eral public. As both the Commission and the Court of Appeals observed in their respective opinions, "the interpretation of the regulation (550.47(b)(12)] involves a significant issue of policy that affects other plants and proceedings." 17 N.R.C.

at 530, quoted in GUARD, slip op. at 7. Accordingly, the Court's opinion

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• vacate [s] the disposi-tions on review that state or apply the generic inter-s pretation and remand [s]

[the] matter to the agency for further consideration consistent with [the]

opinion.

Slip op, at 13 (emphasis supplied). Where the Commission has interpreted its own regulations and made agency policy, it falls to the licensing boards to apply those interpretations and policy determinations in individual adjudicatory proceed-ings. As this Board has previously recognized, the Commis-sion's interpretations of its regulations are binding on its subsidiary tribunals. See, e.g., LBP-84-29B, 20 N.R.C. 389, 402 (1984). Cf. Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 N.R.C. 453, 465 (1982).

It is therefore appropriate for the Board here to defer action on Mr. Eddleman's motion pending further Commission policy guidance on the interpretation of 10 C.F.R. S 50.47(b)(12).2/

Moreover, there are compelling practical considerations which militate in favor of deferring action on Mr. Eddleman's motion. The post-GUARD interpretation of 10 C.F.R.

S 50.47(b)(12) is by no means a foregone conclusion. The Court of Appeals emphasized that its ruling I

2/ Counsel for Applicants are informed that the NRC Office of General Counsel is already preparing an " options paper" for the coramission in response to the GUARD decision. .

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• impose [s] no tight re-straint on the NRC's regula-tory authority. The Commis-sion, on remand, may concentrate on the SONGS record; it may revisit the question, not now before

[the Court] for review, of the scope of the section i-50.47(b)(12) phrase "contam-inated injured individuals";

it may describe genuine "ar- '

rangements" for medical ser-vices for dangerously ex-posed members of the general public; or it may pursue any other rational course.

Slip op. at 3-4. Thus, while the GUARD opinion makes it quite clear what the Commission may not do in interpreting 10 C.F.R.

S 50.47(b)(12), it is equally clear that the Court of Appeals has not defined what the Commission must do. Rather, the Court has allowed the Commission great latitude in interpreting the regulation in response to GUARD.

In light of the broad range of options open to the Commis-sion under the GUARD opinion, any licensing board ruling inter-preting 5 50.47(b)(12) now would be premature, and could be based on little more than speculation as to the action which the Commission will elect to take. Any such licensing board rulings would run a very real risk of conflict with the Commis- .,

sion's policy guidance, when it issues. Accordingly, deferral of ruling on Mr. Eddleman's motion is also appropriate in the interests of effici.ncy and avoidance of needless expenditures of time and resources by the Board and the parties.

III. Conclusion For the reasons stated, the Board should defer ruling on Mr. Eddleman's motion, pending generic Commission policy guid-ance in response to the GUARD decision. For the present, the Board should establish a schedule calling for submittal of in-tervenors' views3 / on the litigability of proposed contentions 3/ Applicants note that the Board discussed the Commission's San onofre decision in ruling on the admissibility of Mr. Eddleman's contentions (Eddleman-56, Eddleman-63, Eddleman 57-C-7, and Eddleman 57-C-8), as well as CHANGE-33. The Commission's decision was also discussed in " Applicants' Motion For Summary Disposition of Eddleman 57-C-7" (January 2, 1985).

within 20 days of issuance of the Commission guidance, with the responses of Applicants and the NRC Staff / FEMA due 10 days after service of the intervenors' submittals.1/

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

Delissa A. Ridgway SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Richard E. Jones Dale E. Hollar CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-7707 Counsel for Applicants Dated: March 15, 1985 4/ It is simply insufficient for Mr. Eddleman to ask the Board to " appropriately" modify Eddleman 57-C-7 "consis-tent with the Court of Appeals' decision." It is up to the intervenor -- not the licensing board -- to frame pro-posed contentions, and to supply the bases for them. This schedule will enable all parties to cast their arguments on the litigability of contentions (including the bases a therefor) with specific reference to the Commission's in-terpretation of the regulation, and will permit Applicants and the Staff to address intervenors' specific proposals.

COLKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '85 MN118 P3:38 0F SELEt.lAHV BEFORE THE ATOMIC SAFETY AND 00CKLICENSING BOA BRANCH 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' Response to.

Intervenor Eddleman's Motion for Reconsideration of Eddleman 57-C-7" were served this 15th day of March, 1985, by deposit in the U.S. mail, first class, postage prepaid, upon the parties listed on the attached Service List.

I ,

Thomas A. Baxter Dated: March 15, 1985 i

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i i  ;

r UNITED STATES OF AMERICA ,

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ,

In the Matter of )  !

)

CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL and NORTH CAROLINA EASTERN ) i MUNICIPAL POWER AGENCY )  !

) r (Shearon Harris Nuclear Power )  !

Plant) )

SERVICE LIST I James L. Kelley, Esquire John D. Runkle, Esquire Atomic Safety and Licensing Board Conservation Council of U.S. Nuclear Regulatory Commission North Carolina Washington, D.C. 20555 307 Granville Road Chapel Hill, North Carolina 275K Mr. Glenn O. Bright M. Travis Payne, Esquire Atomic Safety and Licensing Board Edelstein and Payne U.S. Nuclear Regulatory Commission P.O. Box 12607 Washington, D.C. 20555 Raleigh, North Carolina 27605 Dr. James H. Carpenter Dr. Richard D. Wilson Atomic Safety and Licensing Board 729 Hunter Street U.S. Nuclear Regulatory Commission Apex, North Carolina 27502 i

Washington, D.C. 20555 Charles A. Barth, Esquire Mr. Wells Eddleman Janice E. Moore, Esquire 718-A Iredell Street '

Office of Executive Legal Director Durham, North Carolina 27705 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Richard E. Jones, Esquire .

Office of the Secretary Vice President and Senior Counsel U.S. Nuclear Regulatory Commission Carolina Power s Light Company Washington, D.C. 20555 P.O. Box 1551 Raleigh, North Carolina 27602 r Mr. Daniel F. Read, President Dr. Linda W. Little CHANGE Governor's Waste Management Board P.O. Box 2151 513 Albemarle Building Raleigh, North Carolina 27602 325 North Salisbury Street Raleigh, North Carolina 27611

t Bradley W. Jcnco, E quiro U.S. Nuclear Regulatory Commission Region II 101 Marrietta Street Atlanta, Georgia 30303 Steven F. Crockett, Esquire Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Robert P. Grubar Executive Director Public Staff - NCUC P.O. Box 991 Raleigh, North Carolina 27602 Administrative Judge Harry Foreman Box 395 Mayo University of Minnesota Minneapolis, Minnesota 55455 ,

Spence W. Perry, Esquire Associate General Counsel FEMA 500 C Street, S.W., Suite 480 Washington, D.C. 20740 Steven Rochlis, Esquire Regional Counsel FEMA 1371 Peachtree Street, N.E.

Atlanta, Georgia 30309