ML031050628
| ML031050628 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 04/14/2003 |
| From: | Cordes J, Kovacs K, Mullins C, Slaggie E NRC/OGC, US Dept of Justice, Environment & Natural Resources Div |
| To: | US Federal Judiciary, Court of Appeals, 2nd Circuit |
| References | |
| Case 03-4372 | |
| Download: ML031050628 (37) | |
Text
IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT CONNECTICUT COALITION AGAINST MILLSTONE, )
Petitioner, )
V. ) Case No. 03-4372 UNITED STATES OF AMERICA and UNITED STATES )
NUCLEAR REGULATORY COMMISSION, )
Respondents, )
and DOMINION NUCLEAR CONNECTICUT, )
Intervenor. )
)
FEDERAL RESPONDENTS' MOTION TO DISMISS The Connecticut Coalition Against Millstone has filed this case challenging a decision by the U.S. Nuclear Regulatory Commission, CLI-02-22, 56 NRC 213, issued on November 21, 2002.1 A copy of the decision is attached as Exhibit 1. Connecticut Coalition has invoked this Court's jurisdiction under the Administrative Orders Review Act, 28 U.S.C. §2341, et sea.,
commonly known as the Hobbs Act. However, as we point out below, the challenge is fatally flawed in that (1) it was filed more than 60 days after the decision that it challenges, and (2) it does not challenge a "final agency action. Moreover, Connecticut Coalition cannot "amend" its petition to designate a later "finar order for which a petition would be timely. Accordingly, the petition for review should be dismissed.
I. Factual Background.
A. The Administrative Case.
The Millstone Power Station is a 3-unit nuclear power plant operated by Dominion Nuclear Connecticut under NRC license and located near New London, Connecticut. Dominion 1 Decisions of the Commission are designated by the prefix "CLI" while decisions of the NRC's Atomic Safety and Licensing Board are designated by the prefix "LBP."
Nuclear has ceased operations at Unit No. 1 and is in the process of decommissioning it, but Units 2 and 3 are still in operation. In March, 1999, Northeast Utilities, the previous Millstone licensee, submitted an application for an amendment to the Millstone Unit 3 license. 2 If granted, the amendment would allow the storage of more spent fuel by allowing the licensee to install additional racks to hold spent fuel elements in a previously empty area of the spent fuel pool. Connecticut Coalition filed a request for a hearing and, together with the Long Island Coalition Against Millstone (which Is not participating in this case), submitted eleven proposed ucontentionsw or claims to contest the application.
The Commission referred the application and the hearing request to the NRC's Atomic Safety and Licensing Board, which conducted a hearing on the application under the NRC's statutorily-mandated procedures for proceedings to expand spent fuel pools. See generally 42 U.S.C. §10101, et sea., 10 C.F.R. Part 2, Subpart K. The Licensing Board admitted both organizations as a "joint" party to the proceeding and admitted three contentions to be litigated.
See LBP-00-02, 51 NRC 25 (Feb. 9, 2000). The three contentions, numbered 4, 5, and 6 in Connecticut Coalition's submission, all dealt with the means by which the licensee would prevent criticality accidents in the re-configured spent fuel pool. See LBP-00-02, 51 NRC at 32-
- 41. After written submissions and oral argument, the Licensing Board issued a Memorandum and Order that resolved Contention 5 by adopting an agreed-upon license condition, rejected the other two admitted contentions (Contentions 4 and 6), and terminated the proceeding. See LBP-00-26, 52 NRC 181 (Oct. 26, 2000). Connecticut Coalition immediately sought Commission review of the Licensing Board's rejection of the other two admitted contentions.
Under the Atomic Energy Act, the NRC may issue an amendment on an immediately effective basis, subject to the possibility of its being withdrawn in a subsequent administrative 2On March 31, 2001, Dominion Nuclear Connecticut purchased the Millstone facility from Northeast Utilities, the prior owner and licensee.
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hearing, if the NRC makes a finding that the amendment involves "no significant hazards considerations." See 42 U.S.C. §2239(a). See also 10 C.F.R. §§50.91 and 50.92. The NRC Staff Issued a "proposed" finding of no significant hazards considerations when it announced the application for the amendment and the opportunity for members of the public to request a hearing. See 64 Fed. Reg. 48672 (Sept. 7, 1999). On November 28,2000, after the Licensing Board had terminated the proceeding but during the Commission's review, the NRC Staff made a finding that the amendment involved no significant hazards considerations and then issued the amendment. See 65 Fed. Reg. 75736 (Dec. 4, 2000). Thus, the Millstone operators were immediately able to implement the amendment, subject to the possibility that the Commission might grant a petition for review, reverse the Licensing Board, and revoke the amendment.
While Commission review of the two rejected contentions was proceeding, Connecticut Coalition filed a Motion to Reopen Contention 4 that eventually led to the Commission decision at issue in this case. The Motion to Reopen was based upon the discovery that two fuel rods had been missing from the Millstone Unit No. 1 spent fuel pool since approximately 1980. This information, according to the Connecticut Coalition, raised a question whether the licensee had sufficient administrative controls to keep track of the spent fuel rods that would be stored at Millstone Unit No. 3. The Commission referred the Motion to Reopen to the Licensing Board for further proceedings. See CLI-00-25, 52 NRC 355 (Dec. 21, 2000).
The Licensing Board initially denied the Motion to Reopen. But after reconsidering its decision, it reopened the proceeding with regard to Contention 4 and conducted a hearing with written submissions and an oral argument. Ultimately, the Licensing Board denied Connecticut Coalition's request for a full-scale evidentiary hearing on the newly discovered administrative 3
controls Issue. See LBP-02-16, 56 NRC 83 (Aug. 8, 2002). The Commission decision under review In this case, CLI-02-22, affirmed that Licensing Board decision.3 See Exhibit 1, supra.
However, CLI-02-22 was not the "finar decision in the Millstone proceeding. On November 1, 2001, while the Licensing Board was reviewing the administrative controls issue in the "reopened" proceeding, Connecticut Coalition submitted a new contention under the NRC's rules for "late-filed" contentions. The new contention alleged that In light of the attacks of September 11, 2001, the National Environmental Policy Act (UNEPAK) required the NRC to prepare an Environmental Impact Statement ("EIS") discussing the risks and consequences of terrorism affecting the Millstone spent fuel pool and specifically weighing the costs of a possible terrorist attack against the alternatives to spent fuel pool expansion such as dry cask storage.
The Licensing Board ruled that the contention was inadmissible under the Commission's regulations that prohibit litigation on issues arising out of "attacks and destructive acts by enemies of the United States" or "defense activities." See LBP-02-05, 55 NRC 131, 142-45 (Jan. 24, 2002), citing 10 C.F.R. §50.13. But the Uicensing Board referred the decision to the Commission for further consideration. See LBP-02-05, 55 NRC at 145-46. The Corn-mission grouped that referral together with three other cases that raised the same or similar issues and considered it separately from the administrative controls issue, a fact that the Commission noted in CLI-02-22. See CLI-02-22, 56 NRC at 221, n. 17.
On December 18, 2002, the Commission issued a decision in each of the four cases that raised the issue of the possible impacts of terrorism. In each case, the Commission held that NEPA did not require the Commission to prepare an EIS to consider terrorism issues. One 3 While the Licensing Board was considering the Motion to Reopen based upon the new claim, the Commission reviewed the Licensing Board's rejection of the original Contention 4 based upon the record to that date. Subsequently, the Commission denied both the petition for review of the Board's decision on the original Contention 4, see CLI-01-03, 53 NRC 22 (Jan. 17, 2001), and a separate petition for review of the Board's dismissal of Contention 6. See CLI 10, 53 NRC 353 (May 10, 2001). Those decisions are not at issue in this case.
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of those four decisions was CLI-02-27, 56 NRC 367, which affirmed the Licensing Board's rejection of Connecticut Coalition's contention on NEPA and terrorism. A copy of that decision is attached as Exhibit 2. That decision was the last order in the Millstone Unit No. 3 spent fuel pool expansion proceeding. Prior to CLI-02-27, the possibility existed that the Commission could reverse the Licensing Board and deny the requested amendment; thus there was no "final order" in the proceeding until the issuance of CLI-02-27.
B. Procedural History of This Case.
The Commission issued CLI-02-22 on November 21, 2002. On December 23,2002, Connecticut Coalition mailed a "Notice of Appeal' to the parties to the Unit 3 spent fuel pool proceeding, stating It uherewith serves notice of appeal to the United States Court of Appeals for the Second Circuit of the final decision of the United States Nuclear Regulatory Commission issued on November 21, 2002 denying its petition for an evidentiary hearing and terminating the proceedings." A copy of this "Notice" is attached as Exhibit 3. The NRC replied that it would "take no action on the Notice ... We are aware of no statute or rule that authorizes such a filing." A copy of the Reply is attached as Exhibit 4. To our knowledge, Connecticut Coalition did not file the "Notice" with this Court and did not file a petition for review at that time.
On February 18, 2003, 60 days after the issuance of CLI-02-27, but 87 days after the issuance of CLI-02-22, Connecticut Coalition filed this petition for review challenging CLI-02-22, the decision referenced in the "Notice" of December 23, 2002. However, the petition did not seek review of CLI-02-27, the final order in the Millstone administrative proceeding.
Subsequently, on February 27, 2003, the Connecticut Coalition filed a 'Pre-Argument Statement" with this Court in which the Coalition indicated that not only did it seek review of CLI-02-22, but also of CLI-02-01, a Commission decision in a completely unrelated proceeding involving a different license amendment that affected both Units 2 and 3 at the Millstone facility.
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The Commission Issued CLI-02-01, 55 NRC 1, on January 30, 2002, denying reconsideration of a 2001 order terminating the earlier Millstone proceeding. A copy of the February 27, 2003 Pre-Argument Statement Is attached as Exhibit 5. A copy of CLI-02-01 is attached as Exhibit 6.
- 11. APPLICABLE LAW.
The Hobbs Act gives this Court jurisdiction over "all final orders of the [NRC] made reviewable by Section 2239 of title 42." 28 U.S.C. §2342(4) (emphasis added). Section 2239(b)(1) of Title 42 provides for judicial review of u[a]ny final order entered in any proceeding of a kind specified in" Section 2239(a). Section 2239(a), in tum, provides authority for the Commission to issue orders in 'any proceeding under [the Atomic Energy Act] for the granting, suspending, revoking, or amending of any license .. .." (Emphasis added). The Hobbs Act also provides that "[a]ny party aggrieved by the final order may, within 60 days of its entry, file a petition to review in the court of appeals where venue lies." 28 U.S.C. §2344. A party must "designate the ... order or part thereof to be reviewed." Fed. R. App. P. 15(a).
Ill. ARGUMENT.
A. The Petition For Review Is Untimely.
The Connecticut Coalition filed the instant Hobbs Act petition on February 18, 2003. On its face, the petition challenges a Commission decision issued on November 21, 2002, 87 days before the petition for review was filed. Petitions for review of agency decisions filed under the Hobbs Act must be filed within 60 days of the decision challenged by the petition. 28 U.S.C.
§2344; Natural Resources Defense Council (UNRDC") v. NRC, 666 F.2d 595, 601-02 (D.C. Cir.
1981); New York v. United States, 568 F.2d 887, 892 (2d Cir. 1977). This requirement is jurisdictional. New York v. United States, suDra. Here, the petition for review Is 27 days late.
Thus, even if the petition challenged a "finar order, which as we show below it does not, the petition should be dismissed as impermissibly out of time.
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B. The Petition Does Not Challenge A "Finar Aaencv Action.
A Hobbs Act petition must also challenge a "finar agency decision. 28 U.S.C. §2342(4);
28 U.S.C. §2344. Here, the petition for review challenges CLI-02-22, which was not the Commission's final action on the Connecticut Coalition's challenge to Dominion Nuclear's license amendment request. Instead, CLI-02-22 was merely one more interlocutory decision resolving one of Connecticut Coalition's myriad challenges. The final decision, which Connecticut Coalition has not challenged, is CLI-02-27. Because the petition does not challenge a "finar agency action, this Court has an alternative ground on which to dismiss it.
A final decision is one that "imposes an obligation, denies a right, or fixes some legal relationship, usually at the consummation of an administrative proceeding." Honicker v. NRC, 590 F.2d 1207, 1209 (D.C. Cir. 1978), cert. denied, 441 U.S. 906 (1979). Accord: Dickenson v.
Zech, 846 F.2d 369, 371 (61 Cir. 1988). Thus, In the context of NRC decisions, courts have held that a "final" decision is one that completes or ends a proceeding of the type specified in 42 U.S.C. §2239(a), i.e., a decision that concludes a license or license amendment proceeding.
See, em., City of Benton v. NRC, 136 F.3d 824, 825 (D.C. Cir. 1998) (Der curiam) ("In a licensing proceeding, it is the order granting or denying the license that is ordinarily the final order."); Natural Resources Defense Council v. NRC, 680 F.2d 810, 815 (D.C. Cir. 1982)
("Strictly interpreted, then, a final order in the adjudicatory proceedings in this case would be a decision on the license amendments challenged by NRDC."); Citizens for a Safe Environment v.
AEC, 489 F.2d 1018, 1021 (3d Cir. 1974) ("Viewed in this light a final order in a licensing proceeding under [42 U.S.C.] §2239(a) would be an order granting or denying a license.");
Thermal Ecoloav Must Be Preserved v. AEC, 433 F.2d 524 (D.C. Cir. 1970) (Der curiam) (A Court will not review interlocutory orders of the Commission until it can review the agency's action on the license application).
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Here, the Commission had two separate petitions pending before it in late 2002, either of which could have resulted in the Commission's issuing an order that would reverse the Licensing Board's decision and withdraw the license amendment. First, the Commission resolved the "administrative controls" contention, which it had earlier remanded to the Licensing Board to hear on a Motion to Reopen. That decision was CLI-02-22, issued on November 21, 2002. But that decision did not end the proceeding or grant any Trightse to Dominion Nuclear, i.e., It did not remove the threat of having the amendment withdrawn, because the Commission still had Connecticut Coalition's late-filed contention dealing with NEPA and terrorism pending before it. It was not until the Commission issued CLI-02-27 on December 18, 2002 resolving that separate issue that there was a "final" order in the license amendment proceeding.
As the D.C. Circuit noted in Thermal Ecology, an uaggrieved party" obtains review of various interlocutory decisions by challenging the final order granting or denying the contested application. 433 F.2d at 526. In this case, that would be the Commission order granting or denying Dominion Nuclear's application for a license amendment authorizing the expansion of the spent fuel pool's capacity at Millstone Unit No. 3. But the Millstone application did not receive 'final" Commission approval until the issuance of CLI-02-27 on December 18, 2002.
Thus, CLI-02-22 can only be characterized as an 'interim" or "interlocutory" Commission Order, not a 'final" Order.
Quite simply, the proper course of action would have been for Connecticut Coalition to have challenged both CLI-02-27 and CLI-02-22, perhaps specifying that it was challenging CLI-02-27 only as a prerequisite to challenging CLI-02-22 (if it did not wish to challenge CLI-02-27 specifically). But Connecticut Coalition did not do so, and because the petition for review does not challenge a final order, it should be dismissed.
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C. Connecticut Coalition Cannot Substitute CLI-02-27 For CLI-02-22 In The Petition.
As we noted above, Connecticut Coalition filed its petition for review on the 60' day after the issuance of CLI-02-27, the "finar decision In the Millstone proceeding. However, the petition for review does not name that decision as one of the agency decisions challenged by this petition. Connecticut Coalition cannot now substitute the second decision, for which the petition is timely, for the decision named in the petition, for which the petition is not timely.
The D.C. Circuit recently reached that conclusion when reviewing a similar petition for review in City of Benton v. NRC, 136 F.3d 824 (D.C. Cir. 1998) (er curiam), which we cited above. In that case, several municipal utilities challenged two requested license amendments in proceedings before the Commission. On May 30, 1995, the NRC issued a preliminary order that was a prerequisite for issuing one of the requested amendments. Then on June 8, 1995, the NRC issued two orders granting the amendments. The utilities filed a petition for review, under the Hobbs Act, which named only the May 30 Order as the NRC Order to be reviewed, although the utilities' docketing statement cites both the May 30 Order and one of the June 8 Orders as Orders under review and contains one of the June 8 Orders as an attachmient. See generally City of Benton, 136 F.3d at 825.
The NRC argued that the petition did not challenge a "final" order. The utilities argued that although they may have named the wrong order in the petition, neither the NRC nor the licensee who requested the amendment "was prejudiced because both knew that [the utilities]
were challenging the order issuing the license." 136 F.3d at 825.
The Court of Appeals dismissed the petition. 'Whichever order [the utilities] intended to ask this Court to review, it named the wrong order in its petition. Fed. R. App. P. 15(a) requires that [the] petition be dismissed for failing properly to designate the order to be challenged." 136 F.3d at 826 (emphasis in original) (citations omitted).
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Here, Connecticut Coalition has filed a petition that names only CLI-02-22 as the NRC Order to be reviewed. Moreover, all of the steps it has taken since the conclusion of the NRC's proceedings have been consistent with a decision to challenge CLI-02-22 instead of CLI-02-27, i.e., the December 23, 2002 "Notice of Appeal," the February 18, 2003 Petition for Review, and the February 27 "Pre-Argument Statement." Thus, Connecticut Coalition cannot now argue that it really intended to challenge CLI-02-27. And even if it could, that argument cannot prevent this Court from dismissing the petition. City of Benton v. NRC, supra.
It is true that Connecticut Coalition included CLI-02-01, which was a "finar order In a license amendment proceeding, in the Pre-Argument Statement as a decision for review in this case. However, Connecticut Coalition did not challenge that decision In the Petition for Review.
Moreover, that decision was issued on January 30, 2002, well over a year before the filing of the petition for review; thus, it is clearly outside the 60-day jurisdictional period of the Hobbs Act. Furthermore, that decision was issued in an entirely different administrative proceeding, albeit a proceeding involving two of the Millstone reactors, and Connecticut Coalition has not given any explanation of why inclusion of that decision is appropriate in the discussion of this case. Thus, inclusion of that decision in this case cannot cure the defects in Connecticut Coalition's petition for review.
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CONCLUSION For the foregoing reasons, this Court should dismiss the petition for review.
Respectfully submitted, THOMAS L. SANSONETTI KAREN D. CYR Assistant Attorney G eral General Counsel KAHRYK E. KOVACS A N.'F dORDES, JR.
Attorney C(Slici or Appellate Section Environment and Natural Resources Division E. LEO S GI U.S. Department of Justice Deputy or itor P.O. Box 23795 Washington, D.C. 20026-3795 (202) 514-4010 (voice)
CHARLES E, IILLINS Senior Attmy Office of the G neral Counsel U.S. Nuclear #egulatory Commi ssion Washington, D.C. 20555 (301) 415-1606 (voice)
(301) 415-3200 (fax)
DATED: April 14, 2003.
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Exhibit 1 Cite as 56 NRC 213 (2002) CU 02-22 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Richard A. Meserve, Chairman Greta Joy Dicus
- Nils J. Diaz Edward MeGaffigan, Jr.
Jeffrey S. Merrileld In the Matter of Docket No. 50-423-LA-3 (Facilty Operating License No. NPF-49)
DOMINION NUCLEAR CONNECTICUT, INC.
- (Millstone Power Station, Unit 3) November 21, 2002 In this license amendment proceeding to increase the storage capacity of the spent fuel pool at the Millstone Unit 3 reactor through the use of high-density storage racks, the Commission grants review and affirms the Board's order denying the Intervenors' request for a 10 C.F.R. Part 2, Subpart K evidentiary hearing on a reopened contention.
- RULES OF PRAC1TCE: APPELLATE REVIEW REGULATIONS: INTERPRETATION (10 CF.R. PART 2, SUBPART K)
Review of final decisions of the licensing board in a Subpart K proceeding is governed by 10 C.F.R. § 2.786. As Subpart K has no review provisions of its own, the Subpart G rule is applicable by virtue of 10 C.F.R. § 2.1117.
213
RULES OF PRACTICE: HEARING PROCEDURES FOR SPENT Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI-FUEL POOL EXPANSION PROCEEDINGS 01-3. 53 NRC 22, 26.(200I). Thus, to go forward after the parties' written REGULATIONS: INTERPRETATION (10 C.F.R. PART 2, submissions and oral argument, there must be specific factual controversies, and SUBPART K) additional documentary evidence or live testimony must be necessary for the board to decide those facts, and the facts in question must require resolution for The criteria for the board to designate issues for an adjudicatory hearing after the board to decide the case.
the parties' written submissions and oral argument in a Subpart K proceeding are set out in IOC.F.R. §2.1115.
REGULATIONS: INTERPRETATION (10 C.F.R. PART 2, SUBPART K)
RULES OF PRACTICE: APPELLATE REVIEW LICENSING BOARDS: AUTHORITY; RESOLUTION OF ISSUES A petition for review of a final board decision must contain concise statements of why the decision is erroneous and why the Commission should exercise review. Subpart K "authorizes the board to resolve disputed facts based on the See IO C.F.R. § 2.786(b)(2)(iii)-(iv). evidentiary record made in the abbreviated hearing, without convening a full evidentiary hearing, if the board can do so with 'sufficient accuracy."' Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CL141-1O1, 53 NRC RULES OF PRACTICE: APPELLATE REVIEW 370.385 (2001). In short, Subpart K (which implementsthe NuclearWaste Policy The Commission may grant review when there is a substantial question with Act, 42 U.S.C. §§ 10131 et seq.) "contemplatels) merits rulings by licensing regard to one or more of the following considerations: boards based on the parties' written submissions and oral arguments, except where a board expressly finds that 'accuracy' demands a fiul-scale evidentiary (i) A finding of material fact is clearly ermneous or In conflict with a finding as to the hearing." Id.
same fat in a different proceeding:
(ii) A necessary legal conclusion Iswithout governing precedent or Isa depaoture from or contrary to established law-, REGULATIONS: INTERPRETATION (10 C.F.R. PART 2, (ii;) A substantial and Impontant question of law. policy or discretion has been raised: SUBPART K)
(iv) The conduct of the proceeding involved aprejudicial procedural eror or (v) Any other consideration which the Commission may deem to be in the public interest. RULES OF PRACTICE: HEARING PROCEDURES FOR SPENT 1` FUEL POOL EXPANSION PROCEEDINGS 1O C.F.R. § 2.786(bX4)(i)-(v). See also Advanced Medical Systems, Inc. (One Unsupported factual allegations are inadequate to produce a controversy that Factory Row, Geneva, Ohio 44041), CLI-93-8, 37 NRC 181, 184 (1993).
requires a Subpart K evidentiary bearing. See Millstone, CLI-01-3, 53 NRC at 27.
REGULATIONS: INTERPRETATION (10 CF.R. PART 2, REGULATIONS: INTERPRETATION (10 CF.R. PART 2; SUBPART K)
SUBPART K)
RULES OF PRACTICE: HEARING PROCEDURES FOR SPENT RULES OF PRACTICE: HEARING PROCEDURES FOR SPENT FUEL POOL EXPANSION PROCEEDINGS FUEL POOL EXPANSION PROCEEDINGS Section 2.1115 of 10 C.F.R. describes a two-part test to determine whether a
'The proponent of a contention must supply, at the written submission and contention in a Subpart K proceeding warrants a full evidentiary hearing:
oral argument stages of a Subpart K proceeding, all of the facts upon which it (1)There must bea genuine and substantial dispute of fad which can only be resolved with intends to rely at the formal evidentiary hearing. should one prove necessary."
sufficient curacy by the Introduction of evidence ian adjudicatory hearing and (2) the ShearonHarris,CLI-01-1 1, 53 NRC at 388.
decision of the Commission is likely to depend In whole or in part on the resolution of that, dispue 214 215
REGULATIONS: INTERPRETATION (10 C.F.R. PART 2, RULES OF PRACTICE: CONTENTIONS (SCOPE); REOPENING OF SUBPART K) PROCEEDINGS RULES OF PRACTICE: APPELLATE REVIEW When CCAM/CAM sought to reopen Contention 4, they raised the Licensee's In a Subpart K proceeding, the Commission "generally will defer to our alleged discovery violation regarding notification about the missing fuel rods, licensing boards' judgment on when they will benefit from hearing live testimony but the Board excluded this matter when it set the boundaries for the reopened and from direct questioning of experts or other witnesses." Shearon Harris, proceeding. Thus, the discovery violation was not properly within the reopened CLI-0I-1 1, 53 NRC at 386. proceeding.
RULES OF PRACTICE: COMMISSION REVIEW OF LICENSING RULES OF PRACTICE: CONTENTIONS (SCOPE)
BOARD DECISIONS; BURDEN OF PROOF During the course of the Subpart K oral argument, the Intervenors shifted ADJUDICATORY PROCEEDINGS: the focus of the reporting issue from the alleged discovery violation to an SCOPE alleged failure to report the loss of the fuel rods to the NRC Staff and the The Board accurately defined the scope of the current inquiry to bea comparison Board. But CCAMICAM had never mentioned this in their contention or in the of the circumstances and practices at the time of the loss at Millstone I with reconsideration motion. The Board certainly did not admit it. As we reiterated the current circumstances and practices at Millstone 3 to determine whether just recently, "[tihe NRC's 'longstanding practice requires adjudicatory boards Millstone 3 is vulnerable to a similar loss now. As the Board held, the record here to adhere to the terms of admitted contentions' in order to give opposing parties amply shows the dissimilarities in procedures and practices in the two settings. See 'advance notice of claims and a reasonable opportunity to rebut them."' Private LBP-02-16, 56 NRC 83,90-93 (2002). Dominion and the NRC Staff supplied the Fuel Storage, LLC. (Independent Spent Fuel Storage Installation), CLI-02-20, Board the information it needed to make the relevant determination. CCAM/CAM 56 NRC 147, 157 (2002), quoting Louisiana Energy Services, LP. (Claiborne merely complained in the most general terms. Given the disparity in evidence, Enrichment Center), CLI-98-3, 47 NRC 77, 105 (1998).
Dominion easily met its burden of proof regarding reopened Contention 4.
RULES OF PRACTICE: HEARING PROCEDURES FOR SPENT REGULATIONS: INTERPRETATION (10 C.F.R. PART 2, FUEL POOL EXPANSION PROCEEDINGS SUBPART K)
I REGULATIONS: INTERPRETATION (10 C.F.R. PART 2, RULES OF PRACTICE: REOPENING OF PROCEEDINGS; BURDEN SUBPART K)
OF PROOF; BURDEN OF GOING FORWARD LICENSING BOARDS: AUTHORITY To reopen the proceeding, the Intervenors bear the burden of establishing that the criteria of 10 C.F.R. § 2.734 are met. Thereafter, to move on to a further RULES OF PRACTICE: CONTENTIONS (SCOPE)
Subpart K evidentiary hearing, the Intervenors' written submission and oral The advance notice policy regarding contentions is particularly important in a argument had to meet the criteria described in 10 C.F.R. § 2.1115. However, after Subpart K proceeding, as the parties must submit their evidentiary case 15 days the Intervenors met their threshold burden, the ultimate burden of proof rested prior to the oral argument. Strict adherence to the 10 C.F.R. § 2.1113 procedure with the proponent of the license amendment. Dominion amply met that burden is necessary to prevent one party from ambushing another with last-second new here. Of course, it is not possible for a licensee to provide proof that uncertain theories or claims. It was impermissible, in short, for CCAM/CAM to litigate a future events could never occur. See Millstone, CLI-01-3, 53 NRC at 27. "failure to report" claim that they had not raised in their contention. That claim was not properly before the Board in the reopened proceeding. As a result, the Board should not have entertained discussion of it during oral argument.
216 217
RULES OF PRACTICE: CONTENTIONS criticality accident in the spent fuel pool. 2 The Board summariz1d and restated Contention 4 as follows:
We place strict limits on "character" contentions; specifically, they must relate directly to the proposed licensing action. See Dominion Nuclear Connecticut. Undue and Unnecessary Risk to Woroer and Public Health and Safety Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC The new set of administrative controls trades reliance on physical protection for adinistradve 349, 365-67 (2001), reconsideration denied, CLI-02-1, 55 NRC 1 (2002), and controls to an extent that poses an undue and unnecessary risk of a criticality accident, references cited therein. In the instant case, CCAM/CAM attempt to insert a pmsticularly due to the fact that the licensee has a history of not being able to adhere to "character" issue into a license amendment proceeding raising chiefly technical administrative controls with respect, Inter all. to spent fuel pool configuon.2 matters. The Board recognized that CCAMICAM did not establish the required link between past behavior and the licensing action contested in this case. In After oral argument pursuant to 10 C.F.R. Part 2, Subpart IK the Board found particular, CCAMICAM fail to explain how NNECO's reporting delay, if indeed that "NNECO has demonstrated that it can adhere to administrative controls, there was one, bears on the ability of a new licensee, Dominion Nuclear, to with adequate safety margin and defense-in-depth, without posing an undue or Implement administrative criticality controls that the NRC Staff and the Board unnecessary risk to plant workers or the public." In reaching this conclusion, have found fully protective of the public health and safety. the Board pointed to several factors: the conservatively estimated error rate for fuel assembly misplacement; safety margins maintained by rack reactivity requirements; the use of soluble boron to add defense-in-depth; and additional MEMORANDUM AND ORDER margin introduced by conservative assumptions In criticality calculations. 5 We denied CCAM/CAM's petition for review of the Board's fact finding on This reactor license amendment proceeding arises from Northeast Nuclear Contention 4 because we found the Board's conclusion "well grounded in the Energy Company's ("NNECO") request, dated March 19, 1999, to increase the extensive original record." 6 storage capacity of the spent fuel pool at the Millstone Unit 3 ("Millstone 3") While their petition for review was pending, CCAM/CAM filed a motion reactor through the use of high-density storage racks.' On August 8, 2002. the to reopen the record based on recent reports of two fuel rods missing (since Licensing Board denied the request of the Intervenors, Connecticut Coalition approximately 1980) at another NNECO reactor at the Millstone site, Millstone Against Millstone and Long Island Coalition Against Millstone (collectively, Unit I ("Millstone 1"). CCAM/CAM also alleged a discovery violation by "CCAM/CAM"), for an evidentiary hearing on a reopened contention and terminated the proceeding. CCAMICAM petitioned the Commission for review. 21b other admitted cotnis also Invled criiclit concerns lbe pattes reovd CotnionS, dealin We grant review but affirm the Board's decision. We give our reasons below. with the su.v illince schedule for soluble bon in the spe fuel pool by ageed-u icensle conditi.
subsequenydopted by the Bo& See No ast Natear Eergy C. (Millstone Nucler Powe Stati. Unit 3).
LBP.0.26. 52 NRC Itl. 201 (2000). Aler olaguent, e Bo ened CCAMICAM rs t for afurther evidentiawy herwing an Cotention 6.which questioned dte Licensees ability to take credit Ineriticality calculations I, BACKGROUND for enrichment. burnup. and dcay time limts. See i&*t 202.14. On petition for eview. te Cominission solicited briefs rom the parties Inthis cse and inasimilar ongoing proceeding. See o hemNucetrFEmgCAL (Millstone I Nucka Power Stati. Unit 3).1 C1013.53 NRC 22(2001). Ultimaely, theCC in a oved e Board's On March 19, 1999, NNECO submitted a license amendment application decision on de puely lgl qwion ried InContenon 6.3S. CL-4l-l0, 53 NRC 353 (1).
3 to increase the capacity of its Millstone 3 spent fuel pool from 756 to 1860 I LBP4C02.51 NRC 25.34(20MM) 4 LBP40L26. 52 NRC at 200.
fuel assemblies. CCAM/CAM filed a joint petition to intervene, followed by 'See £d 6
a supplemental petition containing eleven proposed contentions. The Board CL1-013. 53 NRC t 26. CCA-WAM prvd no prbaid evidence rgan hin factor and expressly admitted three contentions, including Contention 4, the sole contention at is- aepted NNECO's criticality calculations. which showed that criticality would not occuir Inth spent fuel pod even with concurent miplacemn of sever fuel assemblies and substantial dilution of the soluble boron. See £ at sue here. Contention 4 challenged use of "administrative controls" to prevent a 27. To demonstrate that an evidentiary hewing Iswarranted, aparty m suppot factual allegations with experts or douet NNCO pred spei ts. CCAMAM. however. made only general legatio insufocslent to if an evidentiary heaing under Subpart KS. Se £t T reaorcore at Millstel.a boiling wat eactc id of 5O f aemb ies Tlhue d y rom which the missing fuel rods were emoe contained 49 such reds. Other fuel ssemblies at Millstone I contained either 49 or 64 Fuel rods. Al Millstone 3. a pressurized water reactor. the core consists of rm fuel asebnMies. each containing 264 individual fuel ods See "NRC Staff Brief and Summary of Relevant Fct Data and Arguments I On Much 31. 2001. DomInion Nuclear Co anecticut.
Inec,becan te Licensee wnd MI ti hIe In this ' upon Whlich the Staff P es To Rely at Oral Argument on Contenion 4 In the Reoed P -eeding" Wi matlet anscheod Affidavit or Antone C Ceme. Cerne Affidavit 19 (Mar. 1 ,2002) ("C'me Atfldat-).
218 219 I
NNECO in not updating prior discovery responses to include information on the reopened Contention 4 and terminated the proceeding.' 3 In Its denial order, the missing fuel rods. We referred the motion to reopen to the Board. Board described the circumstances surrounding the loss of the two fuel rods CCAMICAM's motion had two prongs. First, they alleged that, had the Board and contrasted fuel handling procedures now used at Millstone 3 with those been aware that NNECO could not account for two fuel rods, it would have been used at Millstone I at the time the loss occurred.'4 The Board concluded that unable to make its fact finding that NNECO has demonstrated that it can adhere the deficiency at Millstone I was a result of unusual circumstances; that the to administrative controls with an adequate safety margin. Second, CCAM/CAM missing rods are unlikely to cause a public health or safety problem; that the stated that NNECO had a duty to amend its prior discovery response on the current Millstone 3 program adequately implements the requirements for locating question of fuel handling mishaps at Millstone Station. The Board initially denied spent fuel bundles properly; and that CCAMICAM had not demonstrated "any the CCAMICAM motion.' The Board held that, despite the missing fuel rods, its significant factual disputes of a type that would warrant an evidentiary hearing."'I conclusion-that, following restart of Millstone 3, NNECO had demonstrated the The Board viewed NNECO's alleged failure to timely report the missing fuel rods ability to carry out administrative controls adequately - did not change. Further, as "mere confusion as to what had occurred" and as "information. . . peripheral the Board ruled that the Licensee did not have an obligation to update discovery at best to the Licensee's ability or willingness to carry out ... administrative after the Board's decision in LBPL026, which was issued on October 26, 2000, controls adequately." "6 because NNECO "apparently did not become aware of the missing fuel rods until CCAM/CAM again petitioned for Commission review.'"
November2000."'
CCAM/CAM sought reconsideration. They asserted that the adjudicatory record was incomplete regarding the missing rods, that it was likely that the II. DISCUSSION Licensee was aware of the missing rods during discovery, and that there was no sworn testimony on this point. Upon reconsideration, the Board found that A. Governing Legal Standards most of CCAMICAM's claims, including their discovery claim, lacked merit Review of final decisions of the Board in a Subpart K proceeding is gov and did not require reopening the record. But the Board expressed concern that by 10 C.F.R. §2.786."8 The criteria for the Board to designate issues for an NNECO's loss of the fuel rods "could credibly be attributable to a failure of the adjudicatory hearing after the parties' written submissions and oral argument am administrative controls governing accountability for fuel rods [at Millstone 1.."'° The Board decided to inquire whether any "failure" of administrative controls set out in 10 C.F.R. § 2.1115. We outline these standards below in order to provide a framework for evaluating the CCAM/CAM petition for review.
at Millstone I "could carry over" to implementing administrative controls at Millstone 3." The Board therefore reopened the record on Contention 4, but limited its inquiry to the commonality of administrative controls at Millstone I 1. 10 C.F.R. 52.786 and Millstone 3:
A petition for review of a final board decision must contain concise statements IWle find it appmopt ate to grant CCAMCAM's motion tort econsideration ... to the extent of why the decision is erroneous and why the Commission should exerci it bears upon both the adequacy of administrative controls at the Millstone-3 [spent fuel pooll review." The Commission may grant review when there is a substantial questi ard DNCs ability or willingness to implement such controls successfully. The scope of this I with regard to one or more of the following considerations:
recderni L limited to the procedures or controls for manargement of the [spent fuel pools) andtheir modes of executio that may be cotmon to Millsione-I and Millstone.3.12 After a second round of written submissions and oral argument by the parties, the Board denied CCAM/CAM's request for a further evidentiary hearing on I3Se 4 LUP-02o16. 56 NRC 83(20)
See atS3392.
"Sre U t.97.98.
- See CU-01-3, 53 NRC et 29a UIP-1-1. 53 NRC 7n (=Jl ' 6 see i&at 95.
ee LBP-01-1. 53 NRC at 0O. 17Dwing tepenaencyof die pryoeedpi CCAmCAM offere aIatlb.iienmcohiio Te 8ew ndfakL eAll~y, diem Ad"whidmn NN13C0 d B8ad mejrd d ecemienin. bt iefened ha nsrmg die Con.
e fd distcoveed dhe possiblity "at dredis wee mibifg InSeptmber 2000. See LBP . 55 NRC 131(20M we 10 acepted die refal, wich u nd C i conadd See CLI-02-5, 55 NRC 161 (2002)
LDP-0lI7. 53 NRC 395.4067 (2001).
II t1&403 ASIS an bpt Gefo Isnopicabe by vIna of 10 CP.R.
'99 &t1I7 tm Se10 C.PR. I 2.736(b2XZli)-h) 220 221 t
(I) A finding of material fact Isclearly erroneous or In conflict with a finding as to the same fact in adifferent proceeding: live testimony must be necessary for the Board to decide those facts, and the facts (ii) A necessary legal conclusion is without governing precedent or is adeparture from or in question must require resolution for the Board to decide the case.
contrary to established law; As we held last year, Subpart K "authorizes the board to resolve disputed (iii) A substantial and important question of law, policy or discretion has been raised; facts based on the evidentiary record made in the abbreviated hearing, without (iv) The conduct of the proceeding involved a prejudicial procedural error; or convening a full evidentiary hearing, if the board can do so with 'sufficient (v) Anyotherconsideration which the Comnmission may deem tobe in the public interest.20 accuracy.' "25 In short, Subpart K (which implements the Nuclear Waste Policy Act, 42 U.S.C. §§ 10131 et seq.) "contemplatels) merits rulings by li-CCAM/CAM's petition nominally invokes a combination of the first and third censing boards based on the parties' written submissions and oral arguments, considerations. CCAM/CAM first assert that the Board has decided a substantial except where a board expressly finds that 'accuracy' demands a full-scale evi-and important question of law, policy, and discretion erroneously and that the dentiary hearing."26 Unsupported factual allegations are inadequate to produce decision "has potential to perpetuate much mischief, not just in terms of the a controversy.27 "The proponent of a contention must supply, at the written present licensee but in all future adjudications." 2' But the essence of the petition submission and oral argument stages of a Subpart K proceeding, all of the facts is CCAM/CAM's assertion, under the "clearly erroneous" ground, that the Board upon which it intends to rely at the formal evidentiary hearing, should one prove improperly found the absence of significant factual disputes of a type that would necessary."'
warrant a Subpart K evidentiary hearing. We ordinarily do not review fact-specific Before evaluating whether the Board correctly applied the law to the facts, we Board decisions, absent obvious error.22 Here, though, we have decided to review turn now to a description of the facts, issues, and arguments that were - or were the Board decision so that we can offer clarification of the parties' roles in a not - before the Board when it made its decision.
Subpart K adjudicatory proceeding, and set out our own reasons, in addition to the Board's, for why CCAM/CAM's reopened Contention 4 lacks merit.23 B. Informatlon Before the Board
- 2. 10 CF.R. §2.1115 In its written presentation, Dominion Nuclear Connecticut (which replaced NNECO as Licensee in 2001) submitted abundant information in the form of a As we explained carlierin this proceeding, 10C.F.R. § 2.1115 describes a two-summary, exhibits, and sworn testimony consisting of affidavits of a supervisor part test to determine whether a contention in a Subpart K proceeding warrants a full evidentiary hearing: from the reactor engineering team at Millstone 3, the supervisor for nuclear operations and support for Millstone 3, and an outside expert panel. These (I) There must be a genuine and substantial dispute or fact which can only be resolved with witnesses relied on the report of the Fuel Rod Accountability Project (FRAP sufficient accuracy by the introduction of evidence In an adjudicatory hearing: and (2) the Report), which was an investigation NNECO undertook regarding the loss of decision of the Commission Islikely to depend in whole or in part on the resolution of that the two fuel rods, and a root-cause analysis of the FRAP report. The NRC dispute. Staff provided a written summary, along with affidavits of several experienced scientists and engineers, including NRC's senior resident inspector at Millstone 3, Thus, to go forward after the parties' written submissions and oral argument, there Antone Ceme. I must be specific factual controversies, and additional documentary evidence or These submissions described in detail the extensive investigation of the loss of the two fuel rods; the likely modes of disposition of the rods; the differences in fuel handling procedures used at Millstone I at the time of the loss and at Millstone 3 2010 C.P.R. J2.7UWbX4Xi)(v). See .so Aired Melkl Sysems. I-c (One Factory Row. Geneva. Ohio 44041). CLI-93-9. 37 NRC 181. 14 (1993). today; and the two most recent (and successful) refuelings at Millstone 3. This 21Peition for Review at 6.9 (Aug. 23.2002). information directly addressed the question the Board defined when it reopened 22Camrtnait Pow &rLight Ca. (Sheon Haris Nuclear Power Plw). CLI-01.-1, 53 NRC 370. 382 (2001).
Off d sub RaM Orange COUgY v Nuclear RegalatmY Ceission. Docket No. 011073 and 01.1246. unpublished the adjudicatory proceeding: i.e., whether there is any commonality between fuel decision (D C. CM. Sept. 19. 2002). For reasons st forth In Section n C.2 of this Order. die Board ' Factual efror hi described in note 9. nm, Isinunte wnal.
3See 1o C-P.R. 12.7"6(bX4Xv) (Coninisn may grant review for "ay other cornIderaon" i deem hi 2sShnm narris. CLI.01.1 1, 53 NRC at 35.
"the public iterest see teea y Safty Ugh Cop (Bloonrg SiteDeconta on ad a se Renewa 26,m Denials).
24 CLI.92-13. 36 NRC 79, 5-86 (1992). 2 1CI-01-3.53 NRC at 26. 7See MHirro. CLI-01-3.53 NRC at 27.
IshearonHarrds. a] 01l 1,.53 NRC at33 222 223
handling procedures at the time of the accountability failure at Unit I and the than what CCAM/CAM did before the Board was what they did not do. They present methods in use at Millstone 3.29 cited no specific deficiencies in Millstone 3 procedures, and they provided no CCAM/CAM, in their written submission, did not adequately controvert any factual basis to suggest that Millstone 3's current procedures for accounting and of the Dominion-Staff information on the commonality issue; indeed, they failed control of special nuclear material remotely resemble the procedures in place at to dispute most of the information at all. Instead, they stressed a perceived Millstone I in 1980, when Millstone's former operator lost track of the two fuel problem in discovery during this adjudication - a topic the Board had not rods.
included in its reconsideration order - and in informing the Board about the loss of the two fuel rods. The latter topic was not even within the scope of CCAM/CAM's original contention or its motions to reopen and reconsider. C. Analysis of the Board's Decision CCAM/CAM continued to assert that NNECO had an obligation to inrorm them of Against this backdrop, the Board found that the procedures used at Millstone 3 the missing rods immediately by updating one of NNECO's discovery responses "are sufficient to preclude, with high reliability, an accidental criticality in the in this proceeding. The sole declaration CCAMICAM provided was given by one [spent fuel poolh." 34 A further evidentiary hearing is not necessary for us to of its members, a former employee of NNECO,' who provided neither technical uphold this conclusion. The Commission "generally will defer to our licensing expertise nor relevant eyewitness observations. CCAM/CAM also submitted four boards' judgment on when they will benefit from hearing live testimony and from other items: an NRC inspection report; a report, entitled "Failure to Report direct questioning of experts or other witnesses." 3 3 Missing or Lost Radioactive Fuel Rods in a Timely Manner," prepared by NRC's Office of Investigations; a newspaper article; and a licensee event report regarding Millstone 2.30 None addressed the commonality issue. 1. Loss of the Fuel Rods CCAM/CAM formally acknowledged that the Board had limited the scope of the reopened proceeding to the commonality issue. 3' They nonetheless dwelt on In their petition for Commission review, CCAM/CAM continue to emphasize NNECO's allegedly untimely disclosure of the missing fuel rods to CCAM/CAM, the loss of the fuel rods, per se, and the timing of NNECO's reporting of the loss.
the Board, and the NRC Staff - issues far outside the scope the Board had They apparently believe that the loss of the rods "speaks for itself' and would established. have the Commission deny Dominion's license amendment on a ground akin to At the Subpart K oral argument, CCAM/CAM strayed even further from the the tort doctrine of res ipsa loqultur; i.e., they ask us to infer negligence and/or -
limited subject of the reopened proceeding. 32 They concentrated nearly exclusive- poor safety culture and/or wrongdoing because the occurrence of the loss would V ly on what they considered the "pervasive issue," the "culture" at Millstone, 33 not happen in the ordinary course of events without the fault of the Licensee; an issue not comprehended within the reopened Contention 4. More important The Board found the loss itself sufficient to reopen the proceedings. Indeed, the t Board stated that the one matter giving support to the Intervenors' motion for reconsideration was "the loss of the fuel rods itself and the failure of DNC thus 29 As noted, arm the Board summarized te circumstances asurounding the loss or the two fuel rods and the far, after more than 4 months' search, to have located the rods or accounted for differences between adninistrtive controls at Millstone I and Millstone 3 In its teen decision. See LBP-02-16.
56 NRC at 33-92. The Boad baed It narrative on the voluminous arfdavits, other documes, and arguments their disposition." 3 ' Although the loss of the fuel rods at Millstone I may warrant submintted by Dominion and the NRC Staff. We seeno need to elaborate here on the Bond's dscription and a hard look at the Millstone 3 situation, we will not rescind the Millstone3 license conclusions.
"Osee"Conectcut Coalition Agadst Mistone and Long Island coalition Against Millsone Detailed written amendment on this basis alone."7 Summary Pursuant to 10 CFR Section 2.1113" (Mar. 1. 2002).
The obligation of CCAM/CAM did not end with the reopening of this 32 See so at 2.3. proceeding. Without presenting probative technical evidence of their own, they As an examnpe. CCAMMAM's attorney at the beglwwihg of her presentation outined the dt questions she planned to address:
When does the energy level taken to create a paper mountain in these proceedings equal the energy tha Isbeing given off and will be In the ruture from two missing high level radioactive spent ruel rods. and Is 3' LBP02.l6,6NRCa93.
them a point when that energy level will be equal to the energy being emitted by these spent fuel rods, And Is thee a point under law that will make It all right at that point, if the rods we never found? .... The -m Harlk MLO-l l1.53 NRCat 336 3
secon question is, of couse, where
. e the rods? .... And the third question is, why wasn't the fact or MLBP-0I17. 53 NRC at 407. The Bord rn theproceedingspecificallyb ef e the missing rods disclosed during the earlier portion of these prding when we wentdtough a raser di nforation Aegrding the relationship, if any, between cm en opadon at Millsne Unit 3 Intensive time-limIted discovery process? and the crfws lading to the misplacement or onsor the two fuel rod fron MillIsone Unit 1.
7 Trascript of Heaing at 706-09 (Apr. 2, 2002) ('lr.")- The NRC Staff issuedthe eq d license amendment on Novewber 28, 2000, ar C0tfng dat the 33See Tr. at 723: see also, g., Tr. at 730,736.740.744.,526, 3837,339. aendment posed "no sicant hazards consIderations" under 10 C.F.R. 150.92. So 65 Fed. Reg. 75,736 (Dec. 4,200 224 225
have tried to stretch a 20-some-year-old loss at a different reactor (indeed, a 2. RepoetWng the Loss *
- S different kind of reactor)," tinder different ownership, into a justification for denying a spent fuel expansion amendment at the Millstone 3 unit today. As the As to the timeliness of NNECO's reporting the loss of the fuel rods, the Board held, the record here amply shows the dissimilarities in procedures and Board described this issue as "peripheral at best to the Licensee's ability or practices in the two settings." willingness to carry out [spent fuel pool] administrative controls adequately." 43 Some examples of the differences between Millstone I (in 1980) and When CCAMICAM sought to reopen Contention 4, they raised the Licensee's Millstone 3 (today) are: (I) procedures to implement reactivity limits atMillstone 3 alleged discovery violation regarding notification about the missing fuel rods, include dual review of the determination that an assembly meets the limits; (2) but the Board excluded this matter when it set the boundaries for the reopened comprehensive special nuclear material accounting procedures at Millstone 3 proceeding." Thus, the discovery violation was not properly within the reopened cover both fuel assemblies and fuel rods (unlike the older Millstone 1, which proceeding.
had no procedure for individual rods); (3) fuel location at Millstone 3 is tracked During the course of the Subpart K oral argument, the Intervenors shifted on both a paper card file and a computer-based system called "Shuffleworks," the focus of the reporting issue from the alleged discovery violation to an which was not used at Millstone I when the loss occurred; (4) individual fuel rods alleged failure to report the loss of the fuel rods to the NRC Staff and the at Millstone 3 are controlled in a fuel storage box, which is placed in a basket and Board. But CCAM/CAM had never mentioned this in their contention or in the stored in the same manner as a fuel assembly; and (5) Millstone 3, a pressurized reconsideration motion. The Board certainly did not admit it As we reiterated water reactor, does not have local power range monitors, the devices for which just recently, "[tlhe NRC's 'longstanding practice requires adjudicatory boards the missing rods at Millstone I are believed to have been mistaken when they to adhere to the terms of admitted contentions' in order to give opposing parties were removed from the spent fuel poolAV This list is by no means exhaustive. We 'advance notice of claims and a reasonable opportunity to rebut them."' 4 ' This also note that the Millstone 3 license amendment deals with the storage of fuel policy is particularly important in a Subpart K proceeding, as the parties must assemblies, while the Millstone I event involved fuel rods. submit their evidentiary case 15 days prior to the oral argument. This submission The Board accurately defined the scope of the current inquiry to be a includes:
comparison of the circumstances and practices at the time of the loss at Millstone I with the current circumstances and practices at Millstone 3 to determine a detailed written summary of all the facts, daa, and arguments which e Inon to te partyh t at such time and on which the party proposa to rely at the oral argument either to support or to,,
whether Millstone 3 is vulnerable to a similar loss now.4' Dominion and the refute the existence or a gemine and substmanl dispute of fact. Each party shl also submit, NRC Staff supplied the Board the information it needed to make the relevant all supporting fects and data in the form of sworn written testimony or odher sworn written .
determination. CCAMICAM merely complained in the most general terms. Given submission .... Only facts ad data In dte form of sworn written testimony or oher worn the disparity in evidence, Dominion easily met its burden of proof regarding written submission may be relied on by the paties during oal argument. a ad the preiding -
reopened Contention 4.42 officer shall consider those facts and data only If they ae submitted Inthat form.
Strict adherence to this procedure is necessary to prevent one party from 3' Millstoe I Isa boiling wate reactor, while Millstone 3 is apressuuized water reactor. See note 7. ambushing another with last-second new theories or claims. It was impermissible,
-"SeeLIP-02-16. 56 NRC f 90-93. in short, for CCAMICAM to litigate a "failure-to-report" claim that they had not 40See "Summary of Pacts. Data ad Artgome on Whkh Dominion Nuclear Connecdcut Win Rely at dte Reopened Proeeding Subpart K Oral Argument" at 9-21 (Mar. 1 2O02).
raised in their contention. That claim was not properly before the Board in the 4 reopened proceeding.,"
Antoe Crme inspected ad supervised other NRC Inspecto during Milstone 3refelactivities in May-June 1999. nd InFebrary-March 2001. He stated Ot dte entire bod of administrative controls employed In the refueling operations dtt I have Iispected contains both the procedural specificity ard the redundaney necessary to prechlde aslngle human enuor fri presenting a challenge to ncklr sfty at Millstone Unit 3.
43 Ceame Afridsvit¶14. LP-02.16 M MNRC a 9.
42 To reopen the proceeding. the Intervenors bear the buiden of establishing th the crheria of 10 CA.R. 12.734 "The alleged discovery violation did not preJudie CCAMCAM. They became awe of de mining rods. the awemet. 7lieeafter, to move on to a further evidentiary hearing, the inteWrvnors, ine nsion and oral proceeding wa rope. ard CCAMICAM had every opportuity to gue its point of view coth Import of die arg nt had to meet the criteria decibedi InO1C-F.R. 1 2.1115. Hower aftdie theinrvenors m their theshomd missing Millstone I fuel frodfor m fuel hardling and e at Millstone 3.
burden, the uimate birien of prof etd with thepoponeit of die licen amendment Dominion amply met 45 P irwrs Fel Stmwag. LLC (Indepenlent Spent Fuel Storage Installation). ati02.21. 56 NRC 147. 157 ht burden he. Of c*ure it is not possible ro Licensee to provide proof that uncertain fatue events could woccur See CUl-0l*3, 53 NRC at 27. For a futler discussIon o the Bond's troe in rewsing fad questions in (2002). quofits btais-a EaerryStevkes LP. (claibone Fualchent Caent. CU-9813.47 "RC 77,10 (199 Subpart K proceedHg, see Shearon Harris. CLI-O.1 1, 53 NRC at 393-36 46IOC.F.R. 12.1113.
47 a rslt de Bedouldnot he neraied diuionofk duingolme 226 227
In any event, as the Board held, the "failure to inform" issue is "peripheral" Similarly, In the instant case, CCAM/CAM attempt to insert a "'character" to the main question raised by CCAMWCAM's Contention 4-i.e., the reliability Issue into a license amendment proceeding raising chiefly technical matters.
of administrative controls for criticality control in the Millstone 3 spent fuel Here, as in the prior Millstone case, the Board recognized that CCAM/CAM did pool. 4' As CCAM/CAM sees the case, the failure-to-report issue is a subset of not establish the required link between past behavior and the licensing action a key "culture" or character issue that lies at "the heart" of Contention 4.4" contested in this case. In particular, CCAM/CAM fail to explain how NNECO's CCAM/CAM also contend that the Board erred in considering the alleged reporting delay, if indeed there was one, bears on the ability of a new licensee.
failure to report in isolation, apart from NNECO's "dismal history of admitted Dominion Nuclear, to implement administrative criticality controls that the NRC criminal conduct and flagrant violation of its license and federal requirements Staff and the Board have found fully protective of the public health and safety.
governing operations of nuclear power plants.""0 Further, they maintain that the Board failed to consider NNECO's retaliatory employment practices and fostering a work environment that was not safety-conscious.-" But it is not self- m. CONCLUSION evident why allegations concerning NNECO's past behavior relate to the proper implementation of Dominion's current license. And CCAMICAM have certainly For the foregoing reasons, the Commission grants review and affirms LBP-offered no evidence on the links, if any, between past acts and the amendment. 02-16.
In another recent Millstone case, we addressed the "character" issue and the IT IS SO ORDERED.
part it plays in NRC adjudications.5 2 There, we noted the strict limits that we place on such contentions; specifically, we said they must relate directly to the proposed For the Commission licensing action." In that case, CCAM and another petitioner had raised the events leading to NNECO's guilty plea and conviction in the mid-1990s, but made no ANNETrE L VIETTI-COOK attempt to demonstrate how these past events had a direct bearing on the specific Secretary of the Commission license amendments then before a different licensing board. We concluded that
"'tiheresimply has been no link established between the individuals or direct Dated at Rockville, Maryland, management responsible for falsifying reactor operator examination results years this 21st day of November 2002.
ago, at issue in the NNECO conviction, and Millstone's effluent monitoring program or the managers currently responsible for overseeing it."- 4 We stated that we expect character issues to be "directly germane to the challenged licensing action." 5 '
'See LBPI-0216.56 NRC t 95. Wts Isnot to ay that the alleged reporting delay is inmigpificn The NRCs Ofrice of Investiptions conducted athorough inquiry into whether thee w any deliberate effort to delay Seprting the loss to the NRC The investigation is descmibed in s written repoIt that CCAMICAM attached as an exhibit to seitoy written ma ry. he Offlce of In tigations "did not substnatiae that either the Yet: or row pessonn/onmrciors deiberatly delayed poply epot ote NRC dhat two fuel iodmnswere uncounied riniSng/st" from the Millstone I spent fuel pol. Office of Investigations Repoat on Case No. 1-2001.M7.
"Millstone Nuclear Power Stati. Unit 1: Failure to Report Mising or Lst Radicwtive Pued Rods In al inely Manner" at I (Sept. 28.2001).
49Petion for Review at 9.
" Id. at 7.
51 CCAMICAM. however did not offer any swom ltetimony or document pertaining to the character Ise In their written sunmnwy Inthe eopened prding nor did they develop the Isnue adequately during their initial presentatio reglarding Contention 4. See note 6 asp and LBP-0026. 52 NRC at 1W91 197.200 CU-l1-3. 53 NRC at 25-27.
'2 See .t m MaelSer Comwc&K Inae(Millste Nuclear Power Stao. Units 2 and 3). CLI-01.24, 54 NRC 349,365-67 (2001) recmsderu denied CL42. 55 NRC 1(2002). and refere ied therei "See C1-0o-24.54 NRC at 366
'4 ad.
33 14 at367.
228 229 I
Exhibit 2 nuclear facilities, including reactors.21 We expect further improvements as our internal comprehensive review moves forward. Cite as 56 NRC 367 (2002) CU.02-27 UNITED STATES OF AMERICA III. CONCLUSION NUCLEAR REGULATORY COMMISSION We decline in this proceeding to consider NIRS's AEA- and NEPA-related contentions regarding terrorist threats to the McGuire and Catawba plants, and COMMISSIONERS:
we therefore direct the Board to reject those contentions. !
Richard A. Meserve, Chairman Greta Joy Dlcus For the Commissions Nils J. Diaz Edward MeGaffigan, Jr.
ANNETTE L VIETTI-COOK Jeffrey S. Merrifield Secretary of the Commission Dated at Rockville, Maryland, In the Matter of Docket No. 5O423.LA-3 this 18th day of December 2002.
DOMINION NUCLEAR CONNECTICUT, INC.
(Millstone Nuclear Power Station, Unit 3) December 18, 2002 In this license amendment proceeding to increase the storage capacity of the spent fuel pool at the Millstone Unit No. 3 reactor through the use of high-density storage racks, the Commission affirms the Board's decision to reject the Intervenors' contention that the NRC needs to prepare an environmental impact statement discussing the risks and consequences of terrorism affecting the Millstone spent fuel pool.
TERRORISM NEPA NEPA imposes no legal duty on the NRC to consider intentional malevolent acts, such as those directed at the United States on September 11, 2001, in conjunction with the license amendment to expand spent fuel pool storage capacity at Millstone Unit 3. See PrivateFuelStorage. LLC (Independent Spent Fuel Storage Installation), CLI-02-2S, 56 NRC 340 (2002); accordDuke Energy Corp. (McGuire Nuclear Station, Units I and 2; Catawba Nuclear Station, Units 25skprM i rwls,>~6¢ CU--2, 56 NRC at 34345. I and 2), CLI-02-26, 56 NRC 358 (2002); and Duke Cogema Stone & Webster Cfo s ro p t ram the afrmtation of this Order. If he ha beeu pesem the would have appoued IL (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-24, 56 NRC 335 (2002). "mhe possibility of a terrorist attack .. . is speculative and simply 366
too far removed from the natural or expected consequences of agency action to the costs of an "accident"' against the cost of alternatives such as dry cask require a study under NEPA." PrivateFuelStorage, CLI-02-25, 56 NRC at 349. storage. The Licensing Board found the contention procedurally valid, but found it inadmissible, pursuant to 10 C.F.R. §50.13.2 The Board referred to SAFEGUARDS AND SECURITY INFORMATION the Commission its ruling on the question of section 50.13's applicability.' We accepted the Board's referral, pursuant to 10 C.F.R. § 2.730(f) and established a NEPA briefing schedule. 4 We asked the parties to address all issues, except the procedural The NRC cannot make publicly available the kind of information necessary issue, that they determine are relevant to admissibility of the terrorism contention for a more than superficial NEPA review of the possible impacts of terrorism on and specifically to answer the question, "What is an agency's responsibility under a licensee's facility. See Private FuelStorage, CLI-02-25, 56 NRC at 354-57. NEPA [the National Environmental Policy Act, 42 U.S.C. §§4321 et seq.] to consider intentional malevolent acts, such as those directed at the United States on September 11, 2001?"'
NUCLEAR WASTE POLICY ACT DNC and the NRC Staff filed briefs that maintained that the NRC has Congress has recognized the need for and encouraged high-density spent fuel no responsibility to consider intentional malevolent acts under NEPA, and storage at reactor sites. See Nuclear Waste Policy Act, 42 U.S.C. §§ 10131 et seq. CCAMICAM filed a brief stating the opposite view.6 For the reasons stated below, we affirm the Board's rejection of CCAMICAM's terrorism contention, though for reasons different from those offered by the Board.'
TERRORISM NEPA L BACKGROUND NEPA is not the- right vehicle for considering the impact of terrorism. Our post-September 11th generic analysis of safeguards and security issues already On March 19, 1999, the Licensee filed an application for a license amendment includes reevaluation of interim spent fuel storage at power reactor sites. The to increase the storage capacity of its spent fuel pool from 756 assemblies to 1860 Millstone 3 license amendment does not entail any technological challenges that warrant immediate site-specific treatment before our Staff concludes its t
assessment of security at all nuclear facilities we license or completes any generic See Cormyccut Coalition Against Millstoe and Long Island Coalition Against Mitoe's Motion To Reopen die Record and Request for Admission ofLate-Filed Envirrnmental Conantion, daed Nor. 1.2001. at 7.
rulemaking proceeding precipitated by the recent terrorist attacks. 2S, ,LPg_5. 55 NRC 131(2002). Section 50.13 povids, in effcs tnucewpowe eactricene need not defend against ataca by "enemnis of the United Stat" ld. at 145.
4 see CLI-02-5. 55 NRC 161 (2002).
MEMORANDUM AND ORDER 5 The Commission simultaneously agreed to review terisn c n s and posed dds tame question In dvee odier cases. See Prate Fuel Storage, LLC (Independent Spet Fuel Storage Install stion), LBP-01 37, 54 NRC 476 (2001) (denying admission of teat contention and rerering issue to the Commission), rerral accepted This proceeding arises from an application by Dominion Nuclear Connecticut, CLI-02-3. 55 NRC 155 (2002) Duke Exergy Corp. (McGuire Nuclear Station. Units I and 2; Catawbe Nuclear Station. Units I and 2). LBP-02-4. 55 NRC 49 (2002) (certifying terim missue to the Commission). cerifkation Inc. ("DNC" or "Licensee") for a license amendment to increase the storage acceptepe CLI42-4 55 NRC 164(2002) and Duke Cogwt Stow & Webster(Savannah River Mixed Oxide Fuel capacity, of Millstone Unit No. 3 spent fuel pool. On November 1, 2002, Fabrication Facility). LBP-01-35. 54 NRC 403 (2001). reconsieraton denie4 unpSheished Memorandum and Order (Jan16 2002). pettonor Cofmssuio reviewAd gru d p. Cal-02-4. 55 NRC 158 (2002) We decide the Intervenors, the Connecticut Coalition Against Millstone ("CCAM") thes casstoday.
and the Long Island Coalition Against Millstone ("CAM") (collectively, The Nuclear Energy stating taInte ets amligned with those of te Applicant, fled a ef.
along with a quest that we consider it asaomiu curiae. We grant the request "CCAMICAM"), filed a proposed new contention that maintained that, in ano several other jecent Board decisions have relied on 10 C.F.R. 150.13 to reject tsansm contentions.
light of the September 11, 2001 terrorist attacks, the NRC now needs to See LBP.02-5. 55 NRC at 142-45; Private FuelStorage. LBP-01.37. 54 NRC t 486: Tennener Valy Authoriy (Sequoysh Nuclear Plat. Units I and 2; Watts B r Nuclear Plant. Unit I). LBP-02-14. 56 NRC 15. 33.34 (2002) prepare an environmental impact statement discussing the risks and consequences The provision trew out of a policy Judgment by the Atomic Energy Commission that itwas ow nations "settled of terrorism affecting the Millstone spent fuel pool and specifically weighing tradtion" to "loof Ito themnlitay" for defense against enemy ttacks. ad tat I was "imacb " to expect a "civilian sy" to provide the necessary defense. See Siegel .AEC, 400 F.2d 778, 7M2 (D.C. Cir. 1963).
Since our decisions today res on general principles regarding the scope of NEPA, we do not reach the application of section 50.13 as applied to the terrorism contentions that wre raised inthese cases. Inor view, a we have explated, NEPA does not require a tetrorism review.
368 369
assemblies.' The original design basis of the spent fuel pool at Millstone Unit 3 IL DISCUSSION AND CONCLUSION was 2169 assemblies; however, the current licensing basis for the plant is 756 assemblies. For the reasons we stated today in Private Fuel Storage, we find that NEPA Of the contentions CCAMICAM originally raised in this proceeding, the Board imposes no legal duty on the NRC to consider intentional malevolent acts, such admitted three: Contention 4, relating to the risk of criticality accidents because as thbse directed at the United States on September 11, 2001, in conjunction with of the Licensee's alleged history of not being able to adhere to administrative the license amendment to expand spent fuel pool storage capacity at Millstone controls (i.e., human oversight or monitoring of physical systems); Contention 5, ,Unit 3.1" As we said in Private FuelStorage, "the possibility of a terrorist attack contesting a technical specification amendment regarding surveillance of boron ... is speculative and simply too far removed from the natural or expected concentration in the spent fuel pool; and Contention 6, relating to the legal consequences of agency action to require a study under NEPA.""6 Moreover, the question whether General Design Criterion 62 allows the use of administrative NRC cannot make publicly available the kind of information necessary for a more controls to prevent criticality in the spent fuel pool. To resolve Contention 5, the than superficial NEPA review.17 Board adopted an agreed-upon license condition. The Board denied an evidentiary Our conclusion comports with the practical realities of spent fuel storage, hearing as to Contentions 4 and 6,' and CCAM/CAM petitioned the Commission which has been occurring at Millstone for nearly two decades and will continue, for review of the decision. On the original record, we denied review of the factual regardless of our decision today."' Congress has recognized the need for and issues surrounding Contention 4, accepted review of the legal question involved encouraged high-density spent fuel storage at reactor sites."' Further, all that in Contention 6,10 and ultimately denied CCAM/CAM the relief they requested." we decide today is that NEPA is not the right vehicle for-considering the During the pendency of the appeal, CCAM/CAM filed a motion for impact of terrorism. Our post-September 11th generic analysis of safeguards reconsideration of the Board's decision regarding Contention 4. We remanded the and security issues"' already includes reevaluation of interim spent fuel storage motion to the Board, which, on reconsideration, granted the motion and reopened at power reactor sites. The Millstone 3 license amendment does not entail any the proceeding for the limited purpose of considering the effect, if any, the loss of technological challenges that warrant immediate site-specific treatment before two fuel rods at Millstone Unit 1 might have on the issues raised in Contention 4.12 our Staff concludes its assessment of security at all nuclear facilities we license or The Board ultimately denied CCAMICAM's request for an evidentiary hearing completes any generic rulemaking proceeding precipitated by the recent terrorist and terminated the proceeding." attacks.
CCAMWCAM raised the terrorism contention in the reopened proceeding.
CCAM/CAM asserted that changed circumstances - i.e., the terrorist attacks on
- the World Trade Center and the Pentagon - demonstrate that severe fuel pool "accidents" caused by acts of malevolence or insanity are reasonably foreseeable and must be addressed in an EIS. The Board rejected the contention on the authority of 10 C.F.R. § 50.13 and referred its ruling to the Commission."
Tse Licesee at die lime of filng die alicam wa NOrdet Nuclear Enen Conymny. On March 31. 2001.
DNC becme de Licensee and paty iniacre Inais meur due to a license transer.
9SeNornhat 0
No~wFEneror Ce& (Millmtne NuclearPowerStati. Unit 3). LBPO0-26. 52 NRC III (2000)
' te CU-01.3. 53 NRC 22 (2001 The Commission recogized thattde GDC 62 issue also affected dhe " l See PdmeFurlu tovge. LLC (Independnt Spent Fel Slage A m). CL.02.25. 56 NRC340(20) fuel pod expana. lEcne I t pioceein for tde Shearon Harns clear power planZ therefore. we invited nccon DPue Energy Corp. (McGuire Nuclear Staion. Units I and 2 Catawba Nuclear Sato.. Units I id 2).
de Shernie Hais putie, Carolina Power & Ughit copany and the orang coy Board or con m to CLI42-26.56 NRC 358 (2002). Duke Cogle. Ssu & Weter(Savnah RirMixed Oxid Ful Faib n file micuscCuriaebrefs. Facility). CL-02-24. 56 NRC 335 (2002).
11 6 SC!041 l(53 NRC 353(2001). ' Private Fuel Stosta, CUI02-25. 56 NRC at 349.
l25&e CLU-25. 52 NRC 355(2000). 7S5e i& at 354-57.
13 L33P452-16. NRC 53 (20021). re Couia upheld LBP-02.16 an November 21. 2002. See 'Ca MccGuir CLi-o2-26, 56 NRC at 365.
CL 02-22. 56 NRC 213(202). "Sre NuclearWaste policy Act. 42 U.S.C If10131 at seq.
4 See note 2 usq and accompanyin *&t 20See Prdame FuelStorage. CU12-25. 56 NRC at 343.45.
370 371
Exhibit 3 S
rz I
. . S a' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .I-.
In the Matter of Docket No. 50-423-LA-3 f ,,
DOMINION NUCLEAR CONNNECTICUT, INC.
Millstone Nuclear Power Station, Unit No. 3; Facility Operating License:
NPF-49) DECEMBER 23, 2002 NOTICE OF APPEAL Tho Connecticut Coalition Against Millstone herewith series notice of appeal to the United States Court of Appeals for the Second Circuit of the final decision of the United States Nuclear Regulatory Commission issued on November 21, 2002 denying its petition for an evidentiary hearing and terminating the proceedings.
CONNECTICUT COALITION AGAINST MILLSTONE By:
Nancy,@rton, Esq.
147 q~fss Highway -
Reddtfig Ridge CT 06876 Tel. 203-938-3952 Fed. Bar No. 10836
.1
- I.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of -Docket No. 50-423-LAA3
,DOMINION NUCLEAR CONNNECTICUT, INC.
Millstone Nuclear Power Station, Unit No. 3; FacilIty Operating License:
NPF.49) : DECEMBER 23,2002 CERTIFICATION This Isto certify that a copy of the foregoing was mailed on December 23, 2002 to the following via U.S. Mali, postage pre-paid, to the following:
Office of the Secretary U.S. Nuclear Regulatory Commission Washington DC 20555 David Repka, Esq.
- Winston & Strawn 1400 L Streeet NW Washington DC 20005 tillian M. Cuoco, Esq.
Dominion Nuclear Connecticut, Inc.
Millstone Nuclear Power Station Rope Ferry Road Waterford CT 063B5 Ann P. Hodgdon, Esq.
Office of the General Counsel U.S. Nuclear Regulatory Commission Washington DC 20555 Office of Appellate Adjudication U.S. Nuclear Regulatory Commission Washington DC 10555
- Exhibit 4 0 a'° UNITED STATES -
o NUCLEAR REGULATORY COMMISSION WASHINGTON. D.C. 20555-001 OFFICE OF THE GENERAL COUNSEL January 14, 2003 Nancy Burton, Esq.
147 Cross Highway Reading Ridge, CT 06876 Re: In the Matter of Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), Docket No. 90-423-LA-3
Dear Ms. Burton:
I recently received a copy of a document, entitled "Notice of Appeal," that you sent to our Office of the Secretary in connection with the above-captioned case. The document Is dated December 23, 2002. The document states that it Mserves notice of appeal to the United States Court of Appeals for the Second Circuit of the final decision of the United States Nuclear Regulatory Commission issued on November 21, 2002 denying [a] petition for an evidentiary hearing and terminating the proceedings."
Our office will take no action on the Notice of Appeal you sent to the Commission. We are aware of no statute or rule that authorizes filing such a document.
Sincerely, nF. Cordes (olicitor cc: service list
Exhibit 5 Form C-A (for Agency Cases)
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
° APPLICATION FOR ENFORCEMENT E PETITION FOR REVIEW PRE-ARGUMENT STATEM ENT SENOTICEON REVERSE PLEASETYPEORPRINT. ATTACH ADDITIONAL PAGES IFNECESSARY.
NAMEOFAGENCY: X,5 N ieteav RJdolWh COa-.v4 3' / 4-/
AGENCY DOCKETNO:. Yan 50 TITLEINFULL: Guecvf CHoi, 4 IIchb4L . £Z>L tl 4 ORDER NUMBER: C.
APPROXIMATE NO. OF PAGES IN RECORD:
L; - O a .. I DATE ENTERED. 1/1- / ,0 1;1J..
As L L NO. OF EXHIBITS: _- 4__
JURISDICTION OF COURT OF APPEALS: Zf3 SC Ze !r ROME USCA HAS THIS MATTER BEEN BEFORE THIS COURT PREVIOUSLY? 0 Yes Jp No IFYES STATE CASE NAME E.- . CITATION- I DOCKET NO.:
ATTORREV(Fm 0vrt5E 4j5
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FACTS UPON WHICH VENUE IS BASED. P eW4;olpev CLvrl Ll'rede.&-. ic LOC-Awf- b&4r NATURE OF ORDER ON WHICH REVIEW OR ENFORCEMENT IS SOUGHT: fXhAA 0 r4W teY IWh;o pmeeed; o
,i. ADMINISTRATIVE REGULATIONIRULEMAKING 0 BENEFITS REVIEW 0 UNFAIR LABOR PRACTICE o ROUTES HEALTH & SAFETY _ EMPLOYER COMMUNICATIONS _ IMMIGRATION COMMERCE _ UNION TARIFFS OTHER. (SPECIFY)
CONCISE DESCRIPTION OF PROCEEDINGS BELOW AND ORDER TO BE REVIEWED WHICH RELIEF IS SOUGHT). f o ?AGl- + i 4 e OR ENFORCED (NOTE THOSE PARTS OF THE ORDER FROM oud "Ao%1Qo%eA e4.Se ISSUES PROPOSEDO BE RAISE ON PETITION ORAPFILICATIONI-p ca A.. 9 o.t. *- -L-- J L- .-
RELIEFSOUGHT: Wr4Ac o56vrIu. 1 TO YOUR KNOWfLEDGEl IS THEROAN ASE NOW TO BE BROUGHT BEFORE THIS COURT OR ANY OTHER COURT OR ADMINISTRATIVE AGENCY WHICH:
(A) ARISES FROM SUBSTANTIALLY THE SAME CASE OR CONTROVERSY AS THIS APPEAL? 0 YES5 NO (B) INVOLVES AN ISSUE SUBSTANTLALLY THE SAME, SIMILAR. OR REATED TO AN ISSUE INTHIS APPEAL? 0 YE2NO (IF YES, STATE WHETHER -A OR -BEOR BOTH AND PROVIDE DOCKET: CASE NAME COURT OR AGENCY: CrTATION: NUMBER:_ _
FOR PETITIONER OR APPLICANT:
. I-NAME U.FLA II aNR ITI NAME OF OUNSEL OF RECORD TELEPHONE (c"(l'.Ax.- - 1A.
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Exhibit 6 I
Che asZ5 NRC 1 (2002) CU-02-1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Richard A. Meserve, Chairman Greta Joy Dlcus Nils J. DIaz Edward McGafflgan, Jr.
Jeffrey S. Merrifleld In the Matter of Docket Nos. 50-336-LA 50423-LA DOMINION NUCLEAR CONNECTICUT, INC.
(Millstone Nuclear Power Station, Units 2 and 3) January 30,2002 The Commission denies a petition for reconsideration of a Commission Memorandum and Order finding the Petitioners' sole contention inadmissible.
RULES OF PRACrICE: RECONSIDERATION PETITIONS Reconsideration petitions must establish an error in a Commission decision, based upon an elaboration or refinement of an argument already made, an overlooked controlling decision or principle of law, or a factual clarification.
Petitions for reconsideration should not be used merely to re-argue matters that the Commission already has considered but rejected.
REGULATIONS: INTERPRETATION (10 C.F.R. J5036)
,The test for whether a particular set of safety requirements needs to be retained in the technical specifications is not whether one can conceive of a hypothetical scenario of potential injury, no matter the likelihood of harm or degree of I
I relative significance. Instead, the Commission's policy is to reserve technical specifications for the most significantsafety requirements. that they must or should remain in technical specifications. it goes without saying that virtually all requirements involving the monitoring of instruments at nuclear power facilities have some connection to safety, but many such safety MEMORANDUM AND ORDER requirements can be followed and enforced adequately by means of licensee-controlled documents. The test for whether a particular set of safety requirements needs to be retained in the technical specifications is not whether one can The Commission has before it a petition filed by the Connecticut Coalition conceive of a hypothetical scenario of potential injury, no matter the likelihood Against Millstone and the STAR ("Standing for Truth About Radiation") of harm or degree of relative significance. Instead, the Commission's policy is Foundation seeking reconsideration of the Commission's decision in to reserve CLI-01-24, technical specifications for the most significant safety requirements.
54 NRC 349 (2001).; Both Dominion Nuclear Connecticut, Inc. ("DNC"), To that and effect, applicable Commission regulations outline the types of safety the NRC Staff oppose the petition. We deny the petition. items that must remain in the technical specifications. See 10 C.F.R. §§ S0.3 6 ,50.36a.'
As DNC correctly points out, "reconsideration petitions must establish an In short, to argue that particular safety requirements are "legally required" error in a Commission decision, based upon an elaboration or refinement of to remain in technical specifications, it is not enough simply to allege an argument already made, an overlooked controlling decision or principle that they of bear some relation to safety; of course, by their very nature all "safety"-based law, or a factual clarification."' See, eg., Central Electric Power Cooperative, requirements will. The Petitioners needed to show why the monitoring Inc. (Virgil C. Summer Nuclear Station, Unit '1), CLI-81-26, 14 NRC procedures 787, for routine, low-level, radioactive effluent at issue in this proceeding 790 (1981); cf., Private Fuel Storage, LLC. (Independent Spent Fuel fall among' Storage those most critical safety issues that ought to be retained in technical specifications.
Installation), LBP 17,48 NRC 69,73-74 (1998). Petitions for reconsideration should not be used merely to "re-argue matters that the Commission already They must provide some basis for concluding that there is a significant
[has) likelihood to considered" but rejected. See AdvancedMedicalSystems, Inc. (One Factory -not just a theoretical possibility-that safety at Millstone will be Row, adversely' impacted if the procedures are not kept in the technical specifications. They Geneva, Ohio 44041), CLI-93-24,38 NRC 187, 188 (1993); see also Long never .
Island did so. Their petition for reconsideration now simply reiterates various Lijhting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-88-3, 28 earlier-:
NRC 1, claims, ignoring the Commission's analysis and disposition of them. Indeed, 3-4 (1988), NuclearEngineering Co. (Sheffield, Illinois Low-Level Radioactive the' Petitioners even repeat misconceptions about these license amendments Waste Disposal Site), CLI-80-1, 11 NRC 1, 5-6 (1980). which the Here, the Petitioners' reconsideration petition repeats the same Commission highlighted and corrected in its decision. See CLI-01-24, 54 claims NRC at the Commission rejected in CLI-01-24, which found their sole contention 355 & n.6,364 (regarding "setpoints").
inadmissible. The Petitioners' argument is that the radiological effluent monitoring The Petitioners also argue that the Commission's decision fails to "address procedures at issue in this proceeding "are legally required to remain in Millstone realities," including "Millstone's notoriety as a leading Technical emitter of Specifications." See Petition for Reconsideration of CLI-01-24 (12/17/01) radionuclides into the environment." See Petition at 8. They attach an at 6. unsigned Exactly as before, the Petitioners claim that if these procedures are removed and apparently incomplete statement by Dr. Christopher Busby, dated from March 26, the technical specifications, it is conceivable that: (I) a monitoring requirement 2001. Dr. Busby believes that methods commonly used for calculating allowable might be changed; (2) "something" might "fail," as in "a relatively radiological doses are incorrect, and that as a result, "reactors are licensed to minor release radioisotopes on the basis of erroneous models for radiation accidental or other failure of equipment"; (3) instrument surveillance risk'which may significantly understate their true risk." Dr. Busby's views, though, "somehow .., become unduly lax"; and (4) this reduced surveillance largely may "fail reflect a generic objection to commercial nuclear power and to the Commission's to pick up a release." Id. Again, they rely upon a statement by the Licensee's I,! regulations on dose limits, issues beyond the scope of these license amendments.
counsel that such a scenario "could not be categorically discounted." Id.
at 7. His views amount to an impermissible attack on our reactor safety regulations.
Yet, as the Commission addressed in greater detail in CLI-01-24, simply See 10 C.F.R. § 2.758. While Dr. Busby claims that "Millstone is particularly because monitoring procedures ultimately bear upon safety does not mean dirty," he provides no data indicating any current or ongoing problem with violations of effluent release limits at Millstone. Much of Dr. Busby's - and the Petitioners'-references to Millstone's "notoriety" appear based upon I DNCs Ropnu in OPPsiW to CawneU C03Sido Apit Millston historical Reconide m of C.U1-24 (u nd STAR F ation Pleition for events from several years ago which have not been linked to Millstone's
- 2. 2002) a 4. current 2
- a
. /
management or radiological effluent program, and therefore do not relate directly Cite as 55 NRC, (2,02) CU-02-2 to these discrete license amendments ,/ ,,
In sum, the Petitioners have not pointed to any factual or legal error in UNITED STATES 0*AMERICA CLI-01-24. Accordingly, we deny their petition for reconsideration. NUCLEAR REGULATORY COMMISSION CONCLUSION COMMIZONERS:
/ p,,, /
For the reasons given in this Decision, the Petitioners' petition for reconsideration of CLI-01-24 is denied. Rlchard:A. Meserve, Chaimvan, IT IS SO ORDERED. /Greta Joy Dlcus /
a,/' Nils J. Diaz j For the Commission i Edward McGaffigan, Jr.
/' Jeffrey S. Merrifield ANNETTE L. VIETTI-COOK / 4/
Secretary of the Commission In the Matter of / Docket No. i0-03Q fML Dated at Rockville, Maryland, DUKE COGEdAA STONE & // /
this 30th day of January 2002. WEBSTEA //
(Savanna6 River MIxed Oxide Fuif Fabrlfcatlon Facility) J/uaryar 30,2002 .>.
An this proceeding to aufhorize construction of a mix oxide ("MOX") fuel ibrication facility, theetommission denies the moti of Georgians Again jiuclear Energy to rec6i4sider CLI-01-28, 54 NRC 3 (2001), which deni a
' petition to suspend twproceeding based on the te *stattacks of Septem 1, 2001. /
RULES OF PIfACFICE RECONSIDM TION MOTIONS Recons tion motions "are an o0 rtunity to request co tion of [an) error byhz ining an argument, or by pdinting out a factual mi prehension or a controfllhg decision or law that wa~,serlooked. New argumejits are improper."
4 Privo FuelStorage, LLC (Indoendent Spent Fuel Sto Installation), CLI-0051, 52 NRC 261, 264 (2000) (affirming Licensing oard's holding); id.,
- P-98.17, 48 NRC 69, 73 4 (1998). See also Geo 'a Power Co. (Vogtle 2In a foomoe. dte Pletkiers also refer vaguely to te testimnly of Mr. Cfannce Reynolk. which took place in lectric Generating Plant, nits I and 2), LBP-94 1, 40 NRC 137, 13940 an unreed state m prceeding on March 12,2001.The Petitionen. however, did not provide the testimony, and (1994). GANE has not d onstrated any factual or gal errr in CLI-01-28 that dte Commission has no basis to coilode "t it has any relevance to the requsted license amendments. Moreover, the testimony of Mt. Reynolds ould have been raised or sumited at te time of the Petitkiness earlier appeal and therefore is untimely and inappeopdate is a basis for reconsidezaion. See SA ddrnto Mu ff4WUdtlij Dutrict warrants our reconsid ton of the order. /
(RnhoSmeoNoc G erlagStaion), CL-93-12, 37NRC 355(1993).
4 S
IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT CONNECTICUT COALITION AGAINST MILLSTONE, ICONNECTICUT COALITION AGAINST MILLSTONE, )
Petitioner,
)
)
V.
)
) Case No. 03-4372 UNITED STATES OF AMERICA and UNITED STATES )
NUCLEAR REGULATORY COMMISSION, )
Respondents,
)
and )
)
DOMINION NUCLEAR CONNECTICUT,
)
Intervenor.
)
)
I hereby certify under penalty of perjury that the FEDERAL RESPONDENTS' MOTION TO DISMISS was served by placing copies of the same in the United States Mail, postage prepaid, addressed to:
Nancy Burton, Esq.
147 Cross Highway Redding Ridge, Connecticut 06876 David A. Repka, Esq.
Winston & Strawn 1400 L. Street, N.W.
Washington, D.C. 20015-3052
- CHARLIE Senior Attom
. ~INS Office of the eneral Counsel U.S. Nuclear Regulatory Commission (301) 415-1606 (301) 415-3200 (fax).
Dated: April 14,2003.