ML033220223
| ML033220223 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 11/17/2003 |
| From: | Laura Zaccari NRC/OGC |
| To: | NRC/OCM |
| Byrdsong A T | |
| References | |
| +adjud/rulemjr200506, 50-336-OLA-2, ASLBP 03-808-02-OLA, RAS 7059 | |
| Download: ML033220223 (10) | |
Text
RAS 7059 DOCKETED 11/18/03 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
DOMINION NUCLEAR ) Docket No. 50-336-OLA-2 CONNECTICUT, INC. )
)
(Millstone Power Station, Unit 2) )
NRC STAFFS RESPONSE IN OPPOSITION TO PETITIONERS MOTION FOR RECONSIDERATION Laura C. Zaccari Counsel for NRC Staff November 17, 2003
November 17, 2003 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
DOMINION NUCLEAR ) Docket No. 50-336-OLA-2 CONNECTICUT, INC. )
)
(Millstone Power Station, Unit 2) )
NRC STAFFS RESPONSE IN OPPOSITION TO PETITIONERS MOTION FOR RECONSIDERATION INTRODUCTION On November 3, 2003, Connecticut Coalition Against Millstone (CCAM or Petitioner) filed a Motion for Reconsideration (Motion) of the Commissions Memorandum and Order, CLI-03-14, issued on October 23, 2003 (affirming LBP-03-12). For the reasons set forth below, the NRC staff (Staff) opposes the motion and urges the Commission to deny it.
BACKGROUND On August 18, 2003, the Atomic Safety and Licensing Board (Board) issued a Memorandum and Order (LBP-03-12, NRC ), which denied CCAMs request for hearing.
The Board determined the sole CCAM contention to be insufficient to warrant a hearing, and terminated the proceeding. CCAM filed its Notice of Appeal and Brief in Support of Notice of Appeal on August 28, 2003.
The Commission issued its Memorandum and Order affirming the Boards decision on October 23, 2003 (CLI-03-14, NRC ). CCAM filed a Motion for Reconsideration on November 3, 2003.
CCAM has failed to state any basis upon which the Commission could conclude that reconsideration is warranted; therefore, the Staff submits that the Commission should deny CCAMs motion.
ARGUMENT I. Legal Standards Governing Petitions for Reconsideration A petition for reconsideration 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. Dominion Nuclear Connecticut (Millstone Nuclear Power Station, Units 2 and 3), CLI-02-1, 55 NRC 1, 2 (2002) (quoting Central Electric Power Cooperative Inc. (Virgil C. Summer Nuclear Station, Unit 1), CLI-81-26, 14 NRC 787 (1981)).
A petition for reconsideration should not be used merely to re-argue matters that the Commission already [has] considered but rejected. Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-93-24, 38 NRC 187, 188 (1993). Furthermore, a motion for reconsideration will be denied where the arguments presented are not in reality an elaboration upon, or refinement of, arguments previously advanced, but instead an entirely new thesis.
Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-418, 6 NRC 1, 2 (1977); Central Electric Power Cooperative Inc. (Virgil C. Summer Nuclear Station, Unit 1),
CLI-81-26, 14 NRC 787, 790 (1981).
II. Petitioner Has Failed to Establish an Error in the Commission Decision Petitioner has failed to point out any error of law or fact that would warrant reconsideration by the Commission. CCAM merely reiterates the same argument it made when appealing the decision of the Licensing Board: that common sense dictates that if the containment doors are open during a fuel handling accident, more radiation could escape to the environment.1 1
The license amendment sought by Dominion Nuclear Connecticut, Inc. allows (continued...)
Motion at 2, 3. Moreover, in doing so, CCAM repeatedly re-characterizes its contention.
In previous pleadings, as well as in the present motion, CCAM challenges the licensees application to maintain the doors to containment under administrative control.2 See Supplemented Petition and Contention at 4-5; Brief in Support of Notice of Appeal at 2; Motion at 2. In addition, in its present motion, CCAM for the first time raises the issue of the operability of containment doors and calls it the gravamen of its contention. Motion at 2-3. Thus, CCAM appears to be altering its contention. The motion thus fails to rise to the standard required for reconsideration by the Commission.
CCAM is no stranger to the NRC hearing process, in particular, standards for seeking reconsideration. Previously, CCAM filed a motion for reconsideration of the Commissions decision in CLI-01-24 (See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-02-1, 55 NRC 1 (2002)). In that case, CCAM also proffered a lone contention in opposition to a license amendment. The Licensing Boards rejection of the contention was affirmed by the Commission. In rejecting CCAMs motion for reconsideration in that case (as it should have), the Commission noted, Their petition for reconsideration simply reiterates various earlier claims, ignoring the Commissions analysis and disposition of them. Indeed, the Petitioners even repeat misconceptions about these license amendments which the Commission highlighted and corrected in its decision. Id. at 3.
1
(...continued) changes to the technical specifications which would allow containment penetrations to remain open (under administrative control) during fuel handling. This change is based on use of an alternative source term.
2 CCAMs proposed contention was as follows: The amendment involves the potential of significant increase in the amounts of radiological effluents that may be released offsite and thus the amendment involves an adverse impact on the public health and safety and does involve a Significant Hazards Consideration.
In the case at hand, CCAM has repeated its errors of the previous case, while failing to indicate how the Commission may have erred in this instance. Its argument supporting reconsideration merely repeats the common sense mantra that has previously been rejected by both the Board and the Commission.3 Indeed, CCAM continues to re-characterize and misunderstand the very nature of the license amendment that the Commission explained in great detail in its decision. See CLI-03-14 slip op. at 1-7. CCAM claims that the operability of the doors to containment . . . forms the gravamen of the contention submitted by CCAM, namely, that eliminating the requirement that the licensee maintain the operability of doors to containment during fuel handling accidents unnecessarily exposes the public to peril and should be disallowed.
Motion at 3 (emphasis in original). The operability of the doors to containment has nothing to do with the amendment sought by the licensee. The license amendment does not alter the requirement that the containment doors remain operable. Rather the amendment allows for administrative control of the doors during fuel handling and this requirement will continue in effect whether or not the amendment request is granted. Moreover, Petitioners contention as proposed did not challenge the operability of containment doors. If CCAM is now contending that operability of containment penetrations is at issue, the request for reconsideration must be rejected as a new thesis. See Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B),
ALAB-418, 6 NRC 1, 2 (1977). If the motion simply continues to re-iterate the same arguments, albeit incorrectly, that the Commission has previously rejected, the motion must also be denied.
See Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-93-24, 38 NRC 187, 188 (1993).
3 If CCAM is putting forward a new contention, the Commission must still reject the petition for reconsideration. See Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-418, 6 NRC 1, 2 (1977).
Finally, at no point in its motion does CCAM indicate that the Commission overlooked controlling legal authority, or failed to consider the facts presented. CCAM continues to rely on the Boards statements regarding standing that if containment penetrations are left open, it would seem self-evident that in the event of an accident there is a greater likelihood of a release of radioactivity that might have an impact on a person who lives near the plant. Motion at 2. CCAM dismisses the notion that any sort of expert opinion is required because the Board acknowledged its position as a matter of common sense. This position fails to account for the fact that both the Board and Commission made clear that the standards for admissible contentions are considerably more stringent than those for standing. See CLI-03-14, slip op. at 11-12; LBP-03-12, slip op. at 21.
CCAMs Motion for Reconsideration does not raise a single error of law or fact and in no way indicates that the Commission should reconsider its holding in CLI-03-14. Furthermore, CCAMs characterization of its own contention is either careless or an overt attempt to introduce a new theory after the Commission has gone to great lengths to explain the proposed licensee action. In either case, CCAM has failed to provide any basis whatsoever for a determination that reconsideration is appropriate, and the Commission should deny the motion.
CONCLUSION For the reasons set forth above, the Commission should deny CCAMs motion for reconsideration of the Commissions Memorandum and Order of October 23, 2003.
Respectfully submitted,
/RA/
Laura C. Zaccari Counsel for NRC Staff Dated at Rockville, Maryland this 17th day of November, 2003
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
DOMINION NUCLEAR ) Docket No. 50-336-OLA-2 CONNECTICUT, INC. )
)
(Millstone Power Station, Unit No. 2) )
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter. In accordance with 10 C.F.R. § 2.713(b), the following information is provided:
Name: Laura C. Zaccari Address: Office of the General Counsel, 0-15D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Telephone Number: (301) 415-3897 Fax Number: (301) 415-3725 E-mail Address: lcz@nrc.gov Admissions: Virginia Name of Party: NRC Staff Respectfully submitted,
/RA/
Laura C. Zaccari Counsel for NRC Staff Dated at Rockville, Maryland this 17th day of November 2003
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
DOMINION NUCLEAR ) Docket No. 50-336-OLA-2 CONNECTICUT, INC. )
)
(Millstone Power Station, Unit No. 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFFS RESPONSE IN OPPOSITION TO PETITIONERS MOTION FOR RECONSIDERATION and NOTICE OF APPEARANCE for Laura C. Zaccari in the above-captioned proceeding have been served on the following through deposit in the Nuclear Regulatory Commissions internal mail system or, as indicated by an asterisk, by first class mail this 17th day of November, 2003. Additional e-mail service has been made this same day as shown below.
Ann Marshall Young, Chair Office of the Secretary Administrative Judge ATTN: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Mail Stop: O 16C-1 Mail Stop: T 3F-23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, DC 20555 (E-mail copy to HEARINGDOCKET@nrc.gov)
(E-mail copy to AMY@nrc.gov)
Office of the Commission Appellate Dr. Richard F. Cole Adjudication Administrative Judge Mail Stop: O 16C-1 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T 3F-23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission Washington, DC 20555 (E-mail copy to RFC1@nrc.gov) Lillian M. Cuoco, Esq.*
Dominion Nuclear Connecticut, Inc.
Millstone Power Station Dr. Thomas S. Elleman* Building 475/5 Administrative Judge Rope Ferry Road (Route 156) 5207 Creedmoor Road #101 Waterford, Connecticut 06385 Raleigh, NC 27612 (E-mail copy to Lillian_Cuoco@dom.com.)
(E-mail copy to elleman@eos.ncsu.edu)
Nancy Burton, Esq.
- David A. Repka, Esq.*
147 Cross Highway Brooke D. Poole, Esq.
Redding Ridge, CT 06876 Winston & Strawn LLP (E-mail copy to nancyburtonesq@aol.com.) 1400 L. Street N.W.
Washington, D.C. 20005-3502 Atomic Safety and Licensing Board Panel (E-mail copy to drepka@winston.com. and Mail Stop: T 3F-23 BPoole@winston.com.)
U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001
/RA/
Laura C. Zaccari Counsel for NRC Staff