ML072040085
| ML072040085 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 07/20/2007 |
| From: | Roth D NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| D E Roth, NRC/OGC, 301-415-2749 | |
| References | |
| 50-400-LR, ASLBP 07-855-02-LR, RAS 13902 | |
| Download: ML072040085 (8) | |
Text
July 20, 2007 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CAROLINA POWER & LIGHT CO.
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Docket No. 50-400-LR
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(Shearon Harris Nuclear Power Plant, Unit 1)
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ASLBP No. 07-855-02-LR-BD01 NRC STAFF RESPONSE TO AND OPPOSITION TO MOTION TO STAY THE PROCEEDINGS INTRODUCTION On July 18, 2007, North Carolina Waste Awareness Network (NCWARN) and Nuclear Information Resource Services (NIRS) (collectively Petitioners) made a motion at the pre-hearing conference during oral argument to stay the above captioned proceeding until the applicant comes into compliance with the National Fire Protection Association (NFPA) 805, "Performance-Based Standard for Fire Protection for Light Water Reactor Electric Generating Plants".1 The Atomic Safety and Licensing Board (Board) directed that any party could file by July 20, 2007, any case law or other authority on the issue of staying proceedings2.
On July 20, 2007, the Petitioners provided the motion in writing, (Petitioners Motion to Stay the Proceedings, July 20, 2007. (Motion)) wherein they requested, "the relicensing hearing as it pertains to the contention on fire protection be stayed until the Applicant brings the Shearon Harris NPP into compliance with the fire safety rules." Motion at 2.
Pursuant to the Board's direction, the NRC Staff hereby files this opposition to the 1 Transcript of Oral Argument at 183-184.
2 Id.
Motion, and also provides relevant NRC case law and authority.
BACKGROUND By letter dated November 16, 2006, Carolina Power & Light Company, doing business as Progress Energy Carolinas, Inc., a subsidiary of Progress Energy, Inc. (Applicant) submitted an application for renewal of Facility Operating License (FOL) No. NPF-63 for the Shearon Harris Nuclear Power Plant (HNP), Unit No. 1.3 The Petitioners filed a request for hearing and petition for leave to intervene, dated May 18, 2007.4 The applicant and the Staff filed answers opposing all proffered contentions,5 6 and the Petitioners filed a reply.7 Pursuant to the Board's Orders,8 oral arguments ware held on July 17, 2007. During those oral arguments, the Petitioners moved to stay the proceedings, and the Board provided that any party could file by July 20, 2007, any case law on the issue of staying the proceedings.9 On July 20, 2007, the Petitioners filed its motion.10 The NRC Staffs discussion is set forth below.
3 Letter from Cornelius J. Gannon, Jr., Vice President, Harris Nuclear Plant, Progress Energy Carolinas, Inc., to U.S. NRC (Nov. 14, 2006) (ML063350267) (Application Cover Letter); Harris Nuclear Plant License Renewal Application (Agencywide Documents Access and Management System (ADAMS)
Accession No. ML063350270); Applicants Environmental Report - Operating License Renewal Stage (ML063350276) (ADAMS Package ML063350262).
4 See Petition for Leave to Intervene and Request for a Hearing With Respect to Renewal of Facility Operating License No. NPF-63 by the North Carolina Waste Awareness and Reduction Network and the Nuclear Information and Resource Service, dated May 18, 2007 (Petition).
5 Carolina Power & Light Company's Answer to Petition for Leave to Intervene of NC WARN and NIRS, June 18, 2007 6 NRC Staff Response to Petition for Leave to Intervene and Request for a Hearing Filed by the North Carolina Waste Awareness and Reduction Network and the Nuclear Information and Resource Service, June 18, 2007. (Staff Answer) 7 Petitioners' Reply to Opposition of CPL and NRC Staff to Petition for Leave to Intervene and Request for a Hearing, June 25, 2007.
8 Order (Regarding Oral Argument and Limited Appearance Session), (June 13, 2007); Order (Regarding Oral Argument and Limited Appearance Session), (June 26, 2007); Order (Regarding Questions to Focus On in Oral Argument; Timing of Oral Argument) (June 29, 2007) 9 Tr. at 183-184.
10 Petitioners Motion to Stay the Proceedings, July 20, 2007. (Motion)
DISCUSSION I.
Legal Standards The Commission has a policy of prompt decisionmaking on contention admissibility in license renewal. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 568 (2005). The Commision stated, Apart from our policy of encouraging settlements, we have an equally important policy supporting prompt decisionmaking -- a policy that carries added weight in license renewal proceedings such as this one. We have expressed this "prompt decisionmaking" policy repeatedly and explicitly in our case law.
We have also expressed it less directly in 10 C.F.R. § 2.309(i).
That rule requires a board to rule on any petition to intervene and/or request for hearing within 45 days of receiving the answers and replies associated with that petition and/or request.
Id. (footnotes omitted).
The presiding officer "has the duty to conduct a fair and impartial hearing according to law, to take appropriate action to control the prehearing and hearing process, to avoid delay and to maintain order." 10 C.F.R. §2.319 (emphasis added). Furthermore, 10 C.F.R. § 2.309(i) states, "The presiding officer shall, within forty-five (45) days after the filing of answers and replies..., issue a decision on each request for hearing/petition to intervene, absent an extension from the Commission." 10 C.F.R. § 2.309(i). The Commission has stated that requirement for the Board to issue its decision within 45 days is unaffected by a de facto stay.11 The Commission's regulations at 10 C.F.R. Part 2 do not explicitly provide for a stay of issuance of an initial decision on a request for hearing/petition to intervene. See generally 10 C.F.R. Part 2. A "party" may, pursuant to 10 C.F.R. § 2.334, request a stay of the 11 Millstone, CLI-05-24, 62 NRC at 569 n.79. ("Even assuming arguendo that the settlement talks and the two Board membersinvolvement in the PFS proceeding amounted to an appropriate de facto stay of the Millstone proceeding, section 2.309(i) would still have required the board to issue its order [by the 45-day due date].")
effectiveness of a decision after a decision is issued. Unless otherwise ordered, the filing of a motion does not stay a proceeding or extend the time for the performance of any act. 10 C.F.R.
§ 2.323.
To determine whether to grant a stay of the effectiveness of a decision or action, the factors to be considered are: (1) whether the moving party has made a strong showing 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. 10 C.F.R.§ 2.334(e). The Commission has stated that these factors, even if not technically applicable to a particular request for a stay, simply restate commonplace principles of equity universally followed when judicial (or quasi-judicial) bodies consider stays or other forms of temporary injunctive relief. Entergy Nuclear Vermont Yankee, L.L.C, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-06-8, 63 NRC 235, 237 n.4 (2006). Irreparable harm is the most important of the four standards. Id. at 237. A party seeking a stay must show it faces imminent, irreparable harm that is both certain and great. Id.
Merely raising the specter of a nuclear accident does not demonstrate irreparable harm. Id.
at 237-238.
A person is admitted as a party only after the presiding officer determines that the requestor/petitioner has standing and has proposed at least one admissible contention.
10 C.F.R. § 2.309(a). A person who has not proffered an admissible contention, and has not been admitted as a party in a license renewal proceeding, is not a party. See Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-13, 65 NRC 211, 215 (2007). A non-party has no right to move for a stay. See Id. at 214. (finding that a non-party to license renewal proceedings, whose contentions had been rejected, had no right to request that final decisions be stayed pending resolution of rulemaking).
II.
Petitioners' Motion Should Be Denied The motion to stay the license renewal proceeding should be denied because 1) the Petitioners are not parties and therefore have no right to request a stay; 2) the regulations do not provide for a stay on the initial decision, 3) the Petitioners' Motion does not meet tests in 10 C.F.R.§ 2.334(e) for obtaining a stay, 4) Commission Policy does not support a stay; and
- 5) the Board does not have permission from the Commission to extend the time requirements of 10 C.F.R. § 2.309(i).
The Board has not ruled on the Petitioners' request to participate as a party, so the Petitioners are not parties. As the Commission pointed out in Vermont Yankee, the rights of the non-party do not include requesting a stay. See Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-13, 65 NRC 211, 214 (2007).
The Commission's regulations governing hearing requests, petitions to intervene, requirements for standing, and contentions do not provide for a stay of a ruling for a request to intervene under 10 C.F.R. § 2.309. Although motions may be made pursuant to 10 C.F.R.
§ 2.323, such a motion would require a person to be a party, so, as previously discussed, Petitioners cannot move pursuant to 10 C.F.R. § 2.323.
Even if the Petitioners' were parties, their Motion does not meet the tests of 10 C.F.R.
§ 2.334 to obtain a stay.12 The Motion filed on July 20, 2007, did not make a strong showing of a the likelihood of success on the merits. No irreparable harm absent a stay was suggested.
The Motion did not address where the public interest lies. Accordingly, the Motion cannot support a stay pursuant to 10 C.F.R. § 2.334 criteria as applied by the Commission to stays 12 The Petitioner's oral motion did not address any of the factors in 10 C.F.R. § 2.334. Tr. at 183-185.
generally in Vermont Yankee.
Moreover, the Petitions' basis for a stay is to allow Shearon Harris to comply with its current operating license obligations. See Motion 1-2. However, current compliance is outside of the scope of license renewal. 10 C.F.R. § 54.30(b).
A stay of the proceeding would go directly against Commission policy stated in Millstone.
The Petitioner's Motion did not provide any cases or legal authority in support of a change in this policy.
The Commission has not provided an extension, pursuant to 10 C.F.R. § 2.309(i), for the time to issue a decision. Even if the Motion is granted, the decision on contentions must still be issued within the 45-day period specified by 10 C.F.R. § 2.309(i).
CONCLUSION For the reasons discussed above, the Petitioners' Motion to stay the proceeding should be denied.
Respectfully submitted,
/RA/
David E. Roth Counsel for NRC Staff Dated at Rockville, Maryland This 20th day of July, 2007
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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CAROLINA POWER & LIGHT CO. )
Docket No. 50-400-LR
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(Shearon Harris Nuclear Power Plant,
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Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFF RESPONSE TO AND OPPOSITION TO MOTION TO STAY THE PROCEEDINGS have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system (as indicated by a double asterisk), or by deposit in the U.S. Postal Service (as indicated by an asterisk) this 20th day of July, 2007:
Ann Marshall Young, Chair**
Administrative Judge Atomic Safety and Licensing Board Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: AMY@nrc.gov Peter S. Lam**
Administrative Judge Atomic Safety and Licensing Board Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: PSL@nrc.gov Alice Mignerey**
Administrative Judge Atomic Safety and Licensing Board Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: mignerey@mail.umd.edu E-mail: ACM3@nrc.gov Atomic Safety and Licensing Board Panel**
U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, DC 20555 (Hardcopy only)
Office of Commission Appellate Adjudication**
U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Washington, DC 20555 E-mail: OCAAMAIL@nrc.gov Office of the Secretary**
Attn: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Washington, DC 20555 E-mail: HEARINGDOCKET@nrc.gov John D. Runkle, Esq.*
Attorney at Law P.O. Box 3793 Chapel Hill, NC 27515 E-mail: jrunkle@mindspring.com John H. O=Neill, Jr., Esq.*
Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037 E-mail: John.ONeill@pillsburylaw.com Debra Wolf, Law Clerk Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: daw1@nrc.gov Dated at Rockville, Maryland this 20th day of July 2007
/RA/
David R. Roth Counsel for the NRC Staff