ML20205F413
| ML20205F413 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 08/14/1986 |
| From: | Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#386-344 OL, NUDOCS 8608190196 | |
| Download: ML20205F413 (13) | |
Text
-=
'J e
{
G CD Auhbgkg4 1986 01:04 k.h G= S:;,.,.
UNITEDSTATESOFAMERICAf7!'/,;,G.ij NUCLEAR REGULATORY COMMISSION'("
' 1 '.
BEFORE THE COMMISSION 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)
)
APPLICANTS' ANSWER IN OPPOSITION TO PETITION FOR REVIEW OF APPEAL BOARD JULY ll, 1986 MEMORANDUM AND ORDER I.
Introduction On July 30, 1986, Mr. Steven P. Katz, a member of an organi-zation entitled Coalition for Alternatives to Shearon Harris
(" CASH"), filed a " Petition for Commission Review Pursuant to 10 CFR 2.786" (hereafter the " Review Petition") of a decision by the Atomic Safety and Licensing Appeal Board in this operating license proceeding.
Mr. Katz purports to have filed the Review Petition in part on behalf of CASH, Calvin Ragan et al., and Patricia Miriello, none of whom are parties to this case, and in part on behalf of CASH and Mr. Wells Eddleman, who is an interve-j nor pro se.
Pursuant to 10 C.F.R. S 2.786(b)(3), Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency
(" Applicants") file this answer in opposition to the Review Petition.
i 4
8608190196 860814 PDR ADOCK 05000400
.L_
l G
(
1 II.
The Decision of Which Review is Sought The decision of which review is sought is a Memorandum and Order issued by the Appeal Board on July 11, 1986 (hereafter
" Memorandum and Order").
In the Memorandum and Order, the Appeal Board resolved -- and devoted distinct sections of its memorandum to -- two separate requests for relief.
The Review Petition, however, repeatedly fails to distinguish these decisions or to identify the decision to which much of the argument in the Review Petition is addressed.
First, the Appeal Board denied the " Petition for Leave to Intervene" filed by CASH on June 9, 1986.1!
The Appeal Board (rather than the Atomic Safety and Licensing Board) ruled upon the intervention petition, which was more than four years late,2/
because when it was filed the record was closed and, as the Ap-peal Board stated, "(alll operating license proceedings before the Licensing Board pertaining to the Shearon Harris facility have been completed...".
Memorandum and Order at 2.
Noting that CASH did not participate in the proceedings before the Licensing Board and that CASH disavowed any interest to reopen the record 1/
The petition was opposed by Applicants and the NRC Staff.
See Applicants' Response to CASH's Petition for Leave to Inter-vene (June 24, 1986); NRC Staff Response in Opposition to Peti-tion by Coalition for Alternatives to Shearon Harris for Leave to Intervene (June 30, 1986).
2/
The Commission's notice of opportunity for hearing on the Shearon Harris operating license application provided that all requests for hearing and petitions to intervene must be filed by February 26, 1982.
47 Fed. Reg. 3898 (1982). -. _... _
t t
to raise any new contentions,1!'the Appeal Board denied the intervention petition apparently aimed at appellate-level partic-ipation.S!
The Appeal Board held that one may not appeal matters 4
in which one did not participate below, and that an appeal (other 4
than from the denial of intervention) may only be taken by a i
party to the proceeding.
Memorandum and Order at 2-3.
Second, the Appeal Board denied what it determined to be a
" joint motion for a stay of the license authorization for the Shearon Harris facility filed by CASH and Wells Eddleman."
Memo-randum and Order at 1.
The underlying pleading, dated June 9, 1986, bore no title other than "Before the Atomic Safety and Li-l censing Appeals Board."
The opening line indicates that it is a motion to stay the immediate effectiveness of the Final Licensing I
Board Decision, although the criteria of both 10 C.P.R.
55 2.764(f)(2) and 2.788 are discussed.
Because it had denied
]
the CASH petition to intervene, the Appeal Board treated the stay motion as being sponsored solely by intervenor Eddleman.E!
l 3/
Petition for Leave to Intervene, at 4 (June 9, 1986).
In i
contrast, the Review Petition to a great extent is devoted to matters which have not been in contest in the proceeding.
4/
At this point, the appellate process itself is well along.
The Appeal Board has completed its review of environmental issues and affirmed the Licensing Board.
See ALAB-837, 23 N.R.C.
525 (1986).
Briefing has been completed on appeals from two other Licensing Board partial initial decisions (LBP-85-28, 22 N.R.C.
232 (1985); LBP-85-49, 22 N.R.C. 899 (1985)) and from the Final Licensing Board Decision (LBP-86-ll, 23 N.R.C. 294 (1986)).
5/
The NRC Staff filed an opposition to the stay motion. See NRC Staff Response to Motion of Coalition for Alternatives to i
l (Continued next page) i I
1 Id. at 3-4.
The Appeal Board found the Eddleman stay motion to be based on two matters:
the May 27, 1986 Chatham County resolu-tion on emergency response planning; and the Miriello allega-tions.
The Appeal Board found that the Chatham County basis for the stay request no longer existed because of a subsequently adopted County resolution.
Id. at 4-5.
As to the Miriello alle-gations, the Appeal Board found that Mr. Eddleman had not made the four-factor demonstration for relief required by 10 C.F.R. 5 2.788(e).
In particular, irreparable injury was not demon-strated, and there was no showing that Mr. Eddleman was likely to prevail on the merits.6/
Id. at 5-7.
(Continued)
Shearon Harris and Wells Eddleman for a Stay of the Immediate Effectiveness of the Final Licensing Board (Decision] (June 25, 1986).
Applicants informed the Appeal Board that they considered the filing of a response to be premature, and not appropriate unless and until CASH was granted status as a party to the pro-ceeding.
See Applicants' Response to CASH's Petition for Leave to Intervene, at 2 n.1 (June 24, 1986).
The addition of Mr.
Eddleman's name to the pleading, which was signed on his behalf by a non-lawyer member of CASH, is a questionable basis upon which to entertain the motion.
See 10 C.F.R. 55 2.708(c),
2.713(b).
(CASH apparently believes it may participate in this NRC proceeding, even though it is not a party, by the simple ex-pedient of typing in and signing Mr. Eddleman's name to every document filed by a CASH representative.)
In addition, Mr.
Eddleman, along with the Conservation Council of North Carolina
("CCNC"), separately filed with the Commission on June 9, 1986 a
" Request to Continue Stay Indefinitely" and " Comments on Immedi-ate Effectiveness Review of Final Licensing Board Decision."
6/
Indeed, the Miriello allegations were the subject of a late-filed proposed contention which, in a ruling issued shortly after the Eddleman stay request was filed, the Licensing Board declined to admit as a contested issue.
See Licensing Board unpublished Memorandum and Order (Rejecting Late Proposed Contention Concern-ing Alleged Falsification of Radiation Exposure Records),
June 13, 1986.
This decision was not appealed.
i --
~%
III.
Matters Raised in the Review Petition Were Not Previously Raised Before the Appeal Board The Review Petition does not contain a statement (including record citation) where the matters of fact or law raised in the petition for review were previously raised before the Appeal Board and, if they were not, why they could not have been raised.
See 10 C.F.R.
S 2.786(b)(2)(ii).
CASH complains here for the first time of a Licensing Board ruling granting summary disposition of an environmental conten-tion jointly sponsored by four intervenors.
Review Petition at 3-4; LBP-84-15, 19 N.R.C.
837, 838 (1984).
This matter was not raised in the June 9, 1986 intervention petition or stay request before the Appeal Board.
Moreover, the parties to the proceeding did not appeal the ruling,1/ and the Appeal Board's sua sponte review revealed no errors requiring correction.
ALAB-837, 23 N.R.C.
525, 549 (1986).
Similarly, CASH raises here for the first time the evacua-tion of the Jordan Lake area.
Review Petition at 6-7.
This issue was not raised by CASH or Mr. Eddleman before the Appeal a
I j
Board, and was not a. matter in controversy before the Licensing Board.8/
f 7/
The intervenors sponsoring the contention were Mr. Eddleman, CCNC, the Kudzu Alliance, and Chapel Hill Anti-Nuclear Group Effort -- all of whom now are members or sponsors of CASH.
See Attachments 1 and 2 to Applicants' Response to CASH's Petition for Leave to Intervene (June 24, 1986).
8/
CCNC proposed Contention 3, which addressed this issue, was not admitted for adjudication.
LBP-84-29B, 20 N.R.C.
389, 418-19 (1984).
CCNC did not appeal this Licensing Board ruling.,
m b
Neither did CASH present in its intervention petition before the Appeal Board the ludicrous argument that "[m]any CASH members were either underage or not residence [ sic] of this state when.
. notice was given" of the opportunity in 1982 to inter-vene in the operating license proceeding.E!
Review Petition at 7.
Other matters in the Review Petition arguably have arisen since June 9, 1986.
See e.g.,
Review Petition at 4 (Chatham County resolution of July 7), 5-6 (alleged siren system fail-ures).1S!
Yet, CASH does not explain why these new issues were not brought to the Appeal Board's attention promptly, if they are relevant to the intervention petition or the stay request, or why they are appropriately raised in the first instance in a petition for review.
IV.
The Appeal Board's Decisions are Correct The Review Petition is to contain "[a] concise statement why in the petitioner's view the decision or action is erroneous."
10 C.F.R. S 2.786(b)(2)(iii).
Here, CASH fails to satisfy this requirement because it did not attempt to explain wny the Appeal 9/
CASH does not claim that all of its members were out-of-state or children; neither does it explain why its members (some of whom did intervene) did not seek to participate between February, 1982, and June, 1986.
The presence of the plant and the existence of this proceeding have been widely known in the area.
10/
Both of these issues are raised as well in CASH's July 2, 1986 " Request for Institution of Proceedings Pursuant to 10 CFR 2.206," to the Director of Nuclear Reactor Regulation. J
i f
=
I s
Board's reasoning is erroneous.
See Philadelphia Electric Co.
(Limerick Generating Station, Units 1 and 2), CLI-86-5, 23 N.R.C.
l 125, 126 (1986).
The Review Petition essentially just rehearses 1
all of the concerns which CASH would like to raise at this point -- as if the four and one-half year, heavily contested operating license proceeding had not taken place and the Commis-sion were just embarking upon a proceeding to consider the appli-cation.11/
The Appeal Board's July 11, 1986 Memorandum and Order is mentioned only in passing.
While in Applicants' view the Appeal Board need not have de-cidad the stay request, its ruling on the merits clearly is cor-rect.1 !
CASH is not a party and therefore has no standing to seek a stay of any Licensing Board or Appeal Board actions in this operating license proceeding.
Mr. Eddleman may no longer rely on the Miriello allegations as the basis for a stay.13/
11/
While the CASH intervention petition clearly disclaimed any Intent to inject new issues, CASH repeatedly attempts to do so in its Review Petition and stay requests.
It is also unclear to Applicants why Mr. Eddleman -- who has been active throughout the proceeding and is a member of CASH -- joins in CASH pleadings to this agency which assert that the parties below inadequately pur-sued the issues.
12/
As to the Appeal Board's denial of the stay request, a peti-tion for review is not even the proper vehicle for seeking relief from the Commission.
Rather, an aggrieved party is to apply to the Commission for a stay under 10 C.F.R. S 2.788.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),
CLI-78-1, 7 N.R.C. 1, 30 n.44 (1978), aff'd sub nom. New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir.
1978); Metropolitan Edison Co. (Three Mile Island Nuclear Sta-tion, Unit No. 2), CLI-78-3, 7 N.R.C.
307, 308 n.2 (1978).
13/
See also the CCNC and Eddleman " Comments on Immediate Effec-tIveness Review of Final Licensing Board Decision," at 7 (June 9, (Continued next page) l 7
t
1 o
s Review Petition at 6.
The Licensing Board, on June 13, 1986, re-jected proposed Contention WB-4 on these matters, raised by CCNC and Mr. Eddleman, and neither party appealed from that decision.
Neither does the Chatham County resolution of July 7, 1986 pro-vide any basis for a stay.11/
The fact that the County has de-cided to improve its plan does not call into question the plan's previous approval by the Federal Emergency Management Agency, the NRC Staff,1E! and the Licensing Board (as to contested matters).
The County did not find, as CASH and Mr. Eddleman state, that the current plan is inadequate.
Review Petition at 4.
In fact, the County " endorses the emergency plan jointly developed with Wake, Lee and Harnett Counties and the State of North Carolina."
In addition, the Appeal Board could have rejected Mr. Eddleman's stay request out of hand because it was nearly one month late, no extension of time was sought, and no cause for the late filing was set forth in the motion.
See 10 C.F.R.
(Continued) 1986).
CASH raises these claims once more in its July 2, 1906 show cause petition.
14/
A copy of the resolution was transmitted to Chairman Zech by letter of July 7, 1986, from Chairman Earl D. Thompson of the Chatham County Board of Commissioners.
A copy was also attached to Supplement to Applicants' Response to CCNC and Eddleman Re-quest to Continue Stay Indefinitely, filed with the Commission on July 8, 1986.
15/
NUREG-1038 (Safety Evaluation Report related to the opera-tion of Shearon Harris Nuclear Power Plant, Unit No. 1), Supple-ment No. 3 (May 1986), at 13-2, 3.
s 5 2.788(a) (the Final Licensing Board Decision was served on April 28, 1986).16/
The Appeal Board's denial of the CASH intervention petition is also correct.
Beyond the cogent reasoning the Appeal Board presented in the Memorandum and Order of July 11, 1986, Appli-cants note that the only " contention" advanced by CASH was an appellate-level assertion that the existing intervenors did not adequately represent its interests in the proceeding to date.
Beyond the fact that CASH gives no explanation for the tardiness of this realization, CASH fails to report that it is a coalition created in part by the same organizations and individuals who have participated in the proceeding for over four years as inter-venors.
To claim a deficiency in the actions of these same in-tervenors is no more than a sham.
Even if CASH were not in part an off-spring of current par-ties to the case, the formation of a new organization alone can-not justify late intervention.
If newly acquired standing (or organizational ex-istence) were sufficient of itself to justify per-mitting belated intervention, the necessary conse-quences would be that the parties to the proceeding would never be determined with certain-ty until the final curtain fell.
Assuredly, no adjudicatory process could be conducted in an or-dorly and expeditious manner if subjected to such a handicap.
Carolina Power & Light Co.. (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 N.R.C.
122, 124 (1979).
16/
In contrast, Mr. Eddleman (and CCNC) sought and obtained from the Comm.ssion an extension of time to file immediate effec-tiveness comments. - _ _ _..
\\
V.
Commission Review Should Not be Exercised r
The Review Petition does not raise an important procedural issue or an important question of public policy, and it does not involve an important matter that could significantly affect the environment, or the public health and safety.
See 10 C.F.R. 5 2.786(b)(4)(1).
The concluded public hearing process on the Harris facility was lengthy, thorough, and complete.
The eleventh-hour issues raised by CASH either have already been con-sidered or are clearly insubstantial.
In addition, the Review Petition relies upon matters which could have been but were not raised before the Appeal Board.
See 10 C.F.R. 5 2.786(b)(4)(iii).
Finally, it is apparent that the Appeal Board decisions of which review is sought are correct.
For all of the foregoing reasons, the petition for review should be denied.
Respectfully submitted, Thomas A.
- Baxter, P.C.
SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D. C.
20036 (202) 822-1090 Richard E. Jones Dale E. Hollar CAROLINA POWER & LIGHT COMPANY P. O. Box 1551 Raleigh, North Carolina 27602 (919) 836-8161 counsel for Applicants Dated:
August 14, 1986 '
..f..s..,.....,~/........,...J.<.....
.....,.c
August 14, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
CAROLINA POWER E LIGHT COMPANY
)
and NORTH CAROLINA EASTERN
)
Docket No. 50-400 OL MUNICIPAL POWER AGENCY
)
)
(Shearon Harris Nuclear Power
)
Plant)
)
CERTIFICATE OF SERVICE 4
I hereby certify that copies of " Applicants' Answer In Oppo-sition to Petition For Review of Appeal Board July 11, 1986 Memo-randum and Order" were served this 14th day of August, 1986, by deposit in the U.S. mail, first class, postage prepaid, to the other parties on the attached Service List.
N Thomas A.
- Baxter, P.C.
}
I
b 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 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)
)
SERVICE LIST Chairman Lando W.
Zech, Jr.
Dr. Reginald L. Gotchy U.S.
Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Commissioner Thomas M. Roberts Mr. Howard A. Wilber U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U.S. Nuclear Regulatory Commission Commissioner JTmes K. Asselstine U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 James L.
Kelley, Esquire Commissioner Frederick M. Bernthal Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Mr. Glenn O.
Bright Thomas S. Moors, Esquire Atomic Safety and Licensing Board Chairman U.S. Nuclear Regulatory Commissier Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U.S. Nuclear Regulatory Commission Dr. James H. Carpenter Washington, D.C.
20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commissio:
Washington, D.C.
20555
a Charles A. Barth, Esquire Dr. Richard D. Wilson 729 Hunter Street Janice E. Moors, Esquira Of fice of the General Counsel Apex, North Carolina 27502 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Wells Eddleman 812 Yancey Street Docketing and Service Section Durham, North Carolina 27701 Office of the Secretary Richard E. Jones, Esquire U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Vice President and Senior Counsel Carolina Power & Light Company Mr. Daniel F. Read, President P.O. Box 1551 Raleigh, North Carolina 27602 CHANGE P.O. Box 2151 Raleigh, North Carolina 27602 Dr. Linda W.
Little Governor's Waste Management Board Bradley W. Jones, Esquire 513 Albemarle Building U.S. Nuclear Regulatory Commission 325 North Salisbury Street Raleigh, North Carolina 27611 Region II 101 Marrietta Street H. A. Cole, Jr., Esquire Atlanta, Georgia 30303 Special Deputy Attorney General 200 New Bern Avenue Mr. Robert P. Gruber Raleigh, North Carolina 27601 Executive Director Public Staff - NCUC Joseph Flynn, Esquire P. O. Box 29520 Federal Emergency Management Agenci Raleigh, North Carolina 27262-0520 500 C Street, S.W.,
John D. Runkle, Esquire Washington, D.C.
20740 Conservation Council of North Carolina 307 Granville Road Chapel Hill, North Carolina 27514 M. Travis Payne, Esquire Edelstein and Payne P.O. Box 12607 Raleigh, North Carolina 27605 Coalition for Alternatives to Shearon Harris (CASH) 604 W. Chapel Hill Street Durham, North Carolina 27701
.. -_ _ _ - - -,. __ - -