ML042230326

Brief for the Federal Respondents, 8/6/04

ML042230326
Person / Time
Site:	Millstone
Issue date:	08/06/2004
From:	Fehst G NRC/OGC
To:	Mackechnie R US Federal Judiciary, Court of Appeals, 2nd Circuit
Fehst G (301) 415-1614
References
04-0109
Download: ML042230326 (61)

Text

REQ ,e UNITED STATES 0 ANUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-001 OFFICE OF THE Ags ,20 GENERAL COUNSEL August 6, 2004 Roseann B. MacKechnie, Clerk United States Court of Appeals for the Second Circuit 40 Foley Square New York, New York 10007 RE: Connecticut Coalition Against Millstone v. NRC, Case No. 04-0109

Dear Ms. MacKechnie:

Enclosed you will find the original and nine copies of the brief for the Federal respondent in the above-captioned case. Please date stamp the enclosed copy of this letter to indicate date of receipt, and return the copy to me in the enclosed envelope, postage pre-paid, at your convenience.

Respectfully, Geraldine R. Fehst Attorney (301) 415-1614 (voice)

(301) 415-3200 (fax)

GRF@ NRC.GOV (Internet)

Enclosure:

As stated cc: Service List

IN THE UNrrED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT CONNECTICUT COALITION AGAINST MILLSTONE, Petitioner, V.

U.S NUCLEAR REGULATORY COMMISSION; and the UNITED STATES OF AMERICA Federal Respondents, and DOMINION NUCLEAR CONNECTICUT, INC.,

Intervenor ON A PETITION FOR REVIEW OF A FINAL DECISION OF THE U.S. NUCLEAR REGULATORY COMMISSION BRIEF FOR THE FEDERAL RESPONDENTS THOMAS L SANSONE=TI KAREN D. CYR Assistant Attorney General General Counsel JOHN F. CORDES, JR.

Greer S. Goldman Solicitor Elizabeth Ann Peterson Attorneys E. LEO SLAGGIE Appellate Section Deputy Solicitor Environment and Natural Resources Division Geraldine R Fehst U.S. Department of Justice Attorney P.O. Box 23795 Office of the General Counsel Washington, D.C. 20026-3795 U.S. Nuclear Regulatory Conmmission (202) 514-3888 Washington, D.C. 20555 (301) 415-1614 August 6, 2004

TABLE OF CONTENTS TABLE OF CONTENTS. .......................................... 1 TABLE OF AUTHORITIES ...................

JURISDICTIONAL STATEMENT ............. . LU1 QUESTION PRESENTED .................... ...................

STATEMENT OF TIE CASE ................. ...................

A. Nature of the Case ................. ...................

B. Statutory and Regulatory Framework ... ........ . . . ............. ..

1. Standingand Contentions in NRC Hearings ..........

2. NRC's "Alternative Source Term" Regulation .........

C. Statement of Facts .................. ,..................

1. Alternative Source Term ........ ,..................

2. Dominion's License Amendment Al ,pplication Using The Alternative Source Term ........ .................. . 10

3. CCAM's Petition To Intervene . . . .................. .14

4. Licensing Board Proceedings .... .................. .14

5. The Commission Decisions. .20 STANDARD OF REVIEW .................... .25 i

SUMMARY

OF ARGUMENT ..................................... 27 ARGUMENT .................................................. 29 A. The Commission's Denial of CCAM's Petition To Intervene in Dominion's License Amendment Proceeding Was Grounded in NRC's Strict Pleading Standards ......................... 29

1. CCAM's Contention Lacked A Basis Sufficient to Demonstrate A Genuine Dispute On a MaterialIssue. ...... ......... 31

2. CCAM May Not Challenge NRC Regulations In A License Amendment Proceeding............................. 37 B. Long-Standing Defense-In-Depth Measures Are Being Applied To This Amendment Request. ............................... 39 CONCLUSION ................................................. 45 ii

TABLE OF AUTHORITIES FEDERAL CASES U.S. Supreme Court Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) .............................. 26 Second Circuit Court of Appeals Center ForReproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002). ............................................... 36 Gully v. National Credit Union Administration Board, 341 F.3d 155 (2d Cir. 2003) ................ ............................... 26 In Re New Times Securities Services, Inc.,

371 F.3d 68 (2d Cir. 2004) ............... ................................ 26 Riverkeeper Inc. v. Collins, 359 F.3d 156 (2d Cir. 2004) .................................. 26 Rockland County v. NRC, 709 F.2d 766 (2d Cir. 1983),

cert. denied, 464 U.S. 993 (1983) ........................... .................... 26 D.C. Circuit Court of Appeals Tribune Co. v. FCC, 133 F.3d 61 (D.C. Cir. 1998) ..................................... 38,39 Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990) ............ 30 iii

NRC Adjudicatory Decisions Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2);

Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373 (2002) ..................................................... 33 Duke Energy Corp. (Oconee Nuclear Station, Units 1,2, and 3),

CLI-99-11, 49 NRC 328 ............... 30,37,38 STATUTES Administrative Procedure Act 5.U.S.C. §706(2)(A) .................... 26 Atomic Energy Act 42 U.S.C. 2239(b) ..................... 1 42 U.S.C. §2239, (a)(1)(A) ..................... 4 Hobbes Act 28 U.S.C. §2342(4) ..................... 1 28 U.S.C. §2344 ..................... 1 FEDERAL REGULATIONS 10 C.F.R. §2.206 .................... 28,45 10 C.F.R. §2.714 .................... 5, 13, 16, 18,26,30 10 C.F.R. §2.714(b) .................... 3, 16,27 iv

10 C.F.R. §2.714(d) ................... 3,16,27 10 C.F.R. §2.714(b)(1) ................... 4,30 10 C.F.R. §2.714(b)(2) ................... 5,6,29,33 10 C.F.R. §2.714(b)(2)(i) ................... 5,31 10 C.F.R. §2.714(b)(2)(ii) ................... 5,31,32 10 C.F.R. §2.714(b)(2)(iii) ................... 5,31 10 C.F.R. §2.714 (d)(2)(i) .................... 6 10 C.F.R. §2.714 (d)(2)(ii) .................... 6 10 C.F.R. §2.758 ................... 6,28,38 10 C.F.R. §2.758(a) ................... 31 10 C.F.R. §2.802 Subpart H ...................24,28,38,45 10 C.F.R. §50.36 ................... 18,19 10 C.F.R. §50.67 ................... 6,11,12,13,18,34,38,45 10 C.F.R. §50.67(b) .................... 8 10 C.F.R. §50.67(b)(2) ................... 8,18,19 10 C.F.R. §50.67(b)(2)(i), (ii) ................... 20,34 10 C.F.R. 54(x) ................... 44 10 C.F.R. §100.3 .................... 7 v

FEDERAL REGISTER NOTICES Biweekly Notice; Applications and Amendments to Facility OperatingLicenses Involving No Significant Hazards Considerations, 67 Fed. Reg. 68728 (Nov. 12, 2002) ............................... 12, 13,32,33 Final Rule: Changes To Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004) ................................................. 5 Reactor Site CriteriaIncluding Seismic and EarthquakeEngineering Criteriafor Nuclear Power Plants, 61 Fed. Reg. 65157 (Dec. 11, 1996) ......... 8 Rules of Protectionfor Domestic Licencing Procedures- ProceduralChanges in the HearingProcess, 54 Fed. Reg. 33168 (Aug. 11, 1989) .... 30, 33, 37 Use of Alternative Source Terms At OperatingReactors, 64 Fed. Reg. 71990 (Dec. 23, 1999) ...................................... 8,9, 10 OTHER DOCUMENTS NUREG-0800, Standard Review Plan, Radiological ConsequenceAnalyses Using Alternative Source Terms ................... ...................... 40 Regulatory Guide 1.183, Alternative RadiologicalSource Terms For EvaluatingDesign Basis Accidents At Nuclear Power Reactors, Uuly 2000) ............. ............................. 11, 17, 20, 34, 41 Federal Rules of Civil Procedure .......................................... 30 Statement of Policy on Conduct or Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998) ......................................... 33 Technical Information Document 14844 ........................... 9-10 vi

JURISDICTIONAL STATEMENT This petition for review challenges a final order at the U.S.

Nuclear Regulatory Commission ("NRC") in a reactor license amendment proceeding. Petitioner filed a timely suit in this Court, as required by the Hobbes Act and the Atomic Energy Act; See 28 U.S.C. § 2344; 42 U.S.C.

§2239(b). This Court has jurisdiction to decide the case pursuant to 28 U.S.C. §2342(4).

QUESTION PRESENTED Whether, in a proceeding on an application for a license amendment, the Nuclear Regulatory Commission acted within its discretion in denying a petition to intervene on the ground that the petitioner's sole contention opposing the amendment lacked specificity and support and failed to meet the Commission's strict pleading requirements.

STATEMENT OF THE CASE A. Nature of the Case On September 26,2002, Dominion Nuclear Connecticut, Inc.

("Dominion" or "Licensee") asked the NRC to amend its current operating license for the Millstone Power Station, Unit 2 ("Millstone") by changing certain license conditions, known as technical specifications. (A A171).

Among other things, the amendment would allow Dominion to keep a containment equipment hatch open under administrative controls during the movement of irradiated fuel assemblies inside Millstone's containment structure, so long as the hatch is capable of closure within 30 minutes of a fuel handling accident. UA A177). Dominion's application showed that in the event of such an accident, with containment penetrations left open after the accident, radiation doses would remain well below limits set by NRC regulation and guidance. GA A13-A14).

Upon receipt of Dominion's application, the NRC published notice of an opportunity for members of the public to intervene and seek an agency hearing. GA A10, A13). The Connecticut Coalition Against Millstone

("CAM") and the STAR Foundation ("STAR") sought a hearing before the Commission. JA A15). Shortly thereafter, the Commission established an Atomic Safety and Licensing Board ("Licensing Board" or "Board") to hear the proceeding. GA A3). The Licensing Board found that CAM had standing to participate in the proceeding, based on a declaration from a CAM member who lived within two miles of the plant and could be 2

exposed to "increased radiological emissions," but that STAR did not have standing. UA A66).

Subsequently, CAM filed a single unelaborated contention. It said that the Millstone amendment would lead to a "significant increase" in "radiological effluents." (JA A71-A73). It offered no supporting facts or expert opinion to amplify its "significant increase" allegation.

A few months later, the Licensing Board issued a decision dismissing CAM's contention, finding that CAM's unspecific concerns about increased effluents, while sufficient for standing, failed to satisfy the Commission's pleading regulations requiring a detailed explanation of petitioner's claims.

See 10 C.F.R. §2.714(b), (d) UA A141-A146).

On appeal, the Commission affirmed. UA A157-A160). The Commission agreed with the Board that CCAM's "highly generalized concerns" failed to support an arguable issue for a hearing under the Commission's "strict pleading rule" and terminated the proceeding.

(JA A143, A160).

Upon CCAM's motion for reconsideration, the Commission again denied petitioner's request for a hearing, finding that no new evidence or 3

arguments had been presented to warrant a reversal of its earlier decision that CCAM failed to satisfy NRC's pleading rules. JA A168-A170). This lawsuit followed.

The proposed license amendment has not yet issued; it is still under review by NRC staff.

B. Statutory and Regulatory Framework

1. Standing and Contentions in NRC Hearings Pursuant to Section 189a of the Atomic Energy Act ("AEA"), 42 U.S.C. §2239(a)(1)(A), when the Commission acts to amend an operating license of a nuclear power reactor, it must "grant [an opportunity for] a hearing" to "any person whose interest may be affected by the proceeding" and "admit that person as a party to the proceeding." Id. In addition to requiring hearing petitioners to intervene and establish an AEA "interest" equivalent to "standing," NRC regulations require that a potential intervenor must, as a separate matter, file a "supplement" to the intervention petition demonstrating at least one admissible "contention,"

that is, an issue to litigate. See 10 C.F.R. §2.714(b)(1).'

1 We speak here of the NRC rules applicable to this case. Recently, the Commission recodified and modified a number of its procedural 4

Section 2.714(b)(2) sets out the requirements for a valid contention. It provides that each contention must consist of "a specific statement of the issue of law or fact to be raised or controverted" and must be accompanied by supporting information:

(i) A brief explanation of the bases of the contention; (ii) A concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing, together with the references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion; (iii) Sufficient information (which may include information pursuant to paragraphs (b)(2)(i) and (ii) of this section) to show that a genuine dispute exists with the applicant on a material issue of law or fact. This showing must include references to the specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief.

regulations. See FinalRule: Changes To Adjudicatory Process,69 Fed. Reg. 2182 (Jan. 14, 2004). This new rule changed the numbering, but not the substance, of section 2.714.

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Section 2.714(d)(2)(i) states that admission of a contention may be denied if the contention and supporting material fail to satisfy the requirements of

§2.714(b)(2). Section 2.714(d)(2)(ii) states that contention may also be found to be inadmissible if the contention "if proven, would be of no consequence in the proceeding because it would not entitle petitioner to relief." In addition, a contention in an adjudication may not "attack" any "rule or regulation of the Commission." 10 C.F.R. §2.758.

1. NRC's "Alternative Source Term" Regulation A Commission regulation, 10 C.F.R. §50.67, sets out criteria that licensees must meet when they seek to revise the current "source term" used in their analysis of potential accident consequences. The "source term" essentially characterizes the type, amount, and timing of potential radioactive releases from a nuclear power reactor. (See "1. Alternative Source Term" discussion infra under Statement of Facts). Section 50.67 provides a regulatory basis for operating reactors to use an alternative source term in their accident analyses.

Under section 50.67(b)(2), an applicant's analysis of a proposed license amendment must show, "with reasonable assurance," that under the 6

amendment so-called "design basis accidents" 2 would not result in radioactive releases above specified low levels:

1. An individual located at any point on the boundary of the exclusion area ("EAB") 3 for any 2-hour period following the onset of the postulated fission product release, would not receive a radiation dose in excess of 0.25 Sv(25 rem) total effective dose equivalent ("TEDE").

2. An individual located at any point on the outer boundary of the low population zone ("LPZ"),4 who is exposed to the radioactive cloud resulting from the postulated fission product release (during the entire period of its passage),

2 A design basis accident is not intended to be an actual sequence of events. It is a hypothetical occurrence used to evaluate the performance of the nuclear facility's engineered safety features.

3 The EAB is an exclusion area surrounding the immediate vicinity of a plant. The area provides a high degree of protection to the public from a number of possible plant accidents. The licensee is required by regulation to have the authority to control all activities within the exclusion area, including removal of persons and property from the area. Residences are generally proscribed. See 10 C.F.R. §100.3, "Reactor Site Criteria,"

for the definition of "Exclusion Area".

4 The LPZ, which surrounds the EAB (see footnote 3 supra), contains residences. The LPZ is sized so that with the total number and distribution of residents, there is a reasonable probability that appropriate protective actions can be taken in the event of an accident. Id., for the definition of "Low Population Zone."

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would not receive a radiation dose in excess of 0.25 Sv (25 rem) total effective dose equivalent ("TEDE"). 5 C. Statement of Facts

1. Alternative Source Term An accident at a nuclear power plant may release radioactive nuclear fission products, which may, in turn, result in radiation doses to plant personnel and to persons outside facility boundaries. The NRC regulates nuclear plant designs and operating procedures in part by setting limits on doses that would result from postulated unlikely but credible accidents called "design basis accidents."

6Under the alternative source term's section 50.67(b) criteria, limits are stated in terms of total effective dose equivalent, or TEDE. The TEDE measurement assesses the impact of all relevant nuclides upon all body organs. See final rule establishing the alternative source term, Use of Alternative Source Terms at OperatingReactors, 64 Fed. Reg. 71990, 71993 (Dec. 23, 1999)("Final Rule"). TEDE replaces the whole body/thyroid method used in the original design basis for operating reactors, the terms of which provided for two different doses, one to the whole body and the other to the thyroid. Id. The TEDE limits are at 25 rem for the exclusion area and low population areas affecting the public. With the whole body/thyroid method, limits are at 25 rem whole body, 300 rem thyroid.

The Commission set the TEDE limit at 25 rem because that limit was thought to be "essentially the same level of risk" as the whole body/thyroid method. 61 Fed. Reg. 65157,65160, Reactor Site Criteria Including Seismic and EarthquakeEngineeringCriteriaforNuclear Power Plants, (Dec. 11, 1996).

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The doses predicted from a design basis accident depend on the calculated fission product release from a damaged reactor core into the reactor containment, a release called the "source term." "Source terms" and their regulatory role were explained in detail in the alternative source term rulemaking. See 64 Fed. Reg. at 71992-71993 (Dec. 23, 1999). Briefly, the source term is "characterized by the composition and magnitude of the radioactive material, the chemical and physical properties of the material, and the timing of the release from the reactor core." Id. at 71991. Design basis accidents that do not involve releases from the reactor core- fuel-handling accidents, for example - are evaluated with source terms that are fractions of the reactor accident source term. Many regulatory requirements rest on the radiological consequences of postulated design basis accidents.

Thus the analyses performed with the alternative source term establish design requirements for such things as accident mitigation features, equipment qualification, control room operator radiation doses, and post-accident vital area access doses. Id.

For many years the "traditional" source term approved by the NRC was based on a 1962 document, Technical Information Document (TID) 9

14844. Major research efforts after the 1979 Three Mile Island accident led to "significant advances . . . in understanding the timing, magnitude, and chemical form of fission product releases ... ." Id. Based on these advances, the NRC developed revised "alternative" source terms - that is, alternative to TID 14844 - that give a more realistic description of radioactive releases from design basis accidents. Calculations using the highly conservative TID-14844 source term may have overestimated the dose consequence of these accidents, leading in turn to unnecessarily conservative requirements for safety-related equipment and procedures.

Accordingly, "[t]he NRC concluded that some licensees may wish to use an alternative source term in analyses to support operational flexibility and cost-beneficial licensing actions... ." Id. at 71992.

2. Dominion's License Amendment Application Using The Alternative Source Term Dominion applied for changes to technical specifications that would modify requirements for reactor containment closure and ventilation of the spent fuel pool area while irradiated fuel assemblies are being moved. (IA A171, A13-A14). Dominion supported its application with alternative source term dose calculations for fuel-handling design basis accidents. The 10

Commission noted the necessary condition for such an amendment to be acceptable:

The Licensee must demonstrate that use of the alternative source term and any associated proposed modifications will not result in accident conditions exceeding the criteria specified in section 50.67.

JA A156, JA125). According to Dominion's re-analysis of the design basis fuel handling accident using the alternative source term, submitted in support of the requested license amendment, Millstone would be in compliance with radiation limits set by section 50.67 and the more conservative limit established by an NRC Regulatory Guide with doors to the containment open the entire time of the postulated accident. UA A172).6 "Additional guidance for applicants seeking license amendments based on a re-analysis of design basis fuel handling accidents using section 50.67's accident source term can be found in Regulatory Guide 1.183 "Alternative Radiological Source Terms for Evaluating Design Basis Accidents At Nuclear Power Reactors," Uuly 2000)("Regulatory Guide").

The more conservative Regulatory Guide establishes acceptance criteria of 6.3 rem for the EAB and LPZ. See footnotes 3 and 4 supra for definitions of EAB and LPZ; See also Regulatory Guide 1.183-20, Table 6.

The practice of NRC staff has been to establish more restrictive criteria for events having higher probability of occurrence than that of the maximum credible accident, which section 50.67 criteria address. The design basis fuel handling accident is thought to have a higher probability of occurrence, thus the Regulatory Guide provides that 25% of the 25 rem established by section 50.67 be applied to the fuel handling accident under the alternative source term. The alternative source term limit of 25 rem "is 11

Nevertheless, as a defense-in-depth measure, Dominion submitted administrative controls and operating procedures regarding containment closure in the event of a fuel handling accident. (JA A176-A177; JA A114-A115).

The NRC gave public notice of Dominion's license amendment application in the FederalRegister. UA A10, A13). The notice stated that Dominion's proposed changes to the technical specifications would modify requirements regarding containment closure and spent fuel pool area ventilation during the movement of irradiated fuel assemblies in both the containment and spent fuel areas.7 Specifically, the changes would allow not intended to imply that this value constitutes an acceptable limit for emergency doses to the public under accident conditions. Rather, this ...

25-rem TEDE value (see TEDE discussion at footnote 5 supra) has been stated ... .as a reference value, which can be used in the evaluation of proposed design basis changes with respect to potential reactor accidents of exceedingly low probability of occurrence and low risk of public exposure to radiation." See Footnote 2,10 C.F.R. §50.67.

7The proposed amendment would change the following technical specifications: 3.3.3.1, "Monitoring Instrumentation, Radiation Monitoring;" 3.3.4, "Instrumentation, Containment Purge Valve Isolation Signal;" 3.7.6.1, "Plant Systems, Control Room Emergency Ventilation System;" 3.9.4 "Refueling Operations, Containment Penetrations;" 3.9.8.1, "Refueling Operations, Shutdown Cooling and Coolant Circulation-High 12

the equipment door and personnel air lock door to be open under administrative controls during refueling, capable of closure within 30 minutes in the event of a fuel handling accident. JA A176-A177). (Under the unamended license, the personnel air lock door may be open during refueling operations but must be capable of closure within 10 minutes.)

JA A236, A 140). The notice stated that Millstone would meet the radiation dose limits set by NRC regulation at section 50.67 and by regulatory guidance at both measured outer boundaries affecting the public and in Millstone's control room even if the containment openings were never closed. (JA A14).

The notice also advised persons whose interest would be affected by the amendments to "consult a current copy of 10 C.F.R. §2.714," which set forth in detail the regulatory standards a petitioner must meet to establish standing in a proceeding and to establish an admissible contention. (JA A10-All). In addition, the notice itself set forth the requirements a Water Level;" 3.9.8.2, "Refueling Operations, Shutdown Cooling and Coolant Circulation-Low Water Level;" and 3.9.15, "Refueling Operations, Storage Pool Area Ventilation System." (JA A13, A14).

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petitioner must meet to achieve standing and to achieve an admissible contention. (JA A10-All).

3. CCAM's Petition To Intervene CCAM and the STAR Foundation ("STAR") sought a hearing before the Commission. CCAM's petition was based on an attached declaration from a CCAM member who lived within two miles of the plant. This CCAM member claimed health consequences from "relax[ed] existing standards of radiological protection for workers and the public. . .increased radiological emissions above current levels. . .[and an increase in] routine emissions... ."8 UA A65-A66). STAR's petition was based on a declaration from an individual living 23 miles from the plant. (JA A65-A66).

4. Licensing Board Proceedings After Dominion and NRC staff presented written arguments to the Licensing Board opposing CCAM's petition to intervene and request for a hearing, the Board ruled that STAR lacked standing but that CCAM had made a sufficient showing of injury-in-fact to the CCAM member who lived within two miles of Millstone. UA65-A66).

8 The declarant, Joseph Basaade, died on August 16,2003. GA A150).

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The Board held that "even minor radiological exposures resulting from a proposed licensee activity can be enough to create the requisite injury-in-fact." (JA A66). The Board agreed with petitioners that with containment penetrations left open in the event of a fuel handling accident, it "seem[s] self-evident ... .there is a greater likelihood of a release of radioactivity that might have an impact on a person who lives near the plant... .[and that] common sense indicates that more radioactivity is going to escape the containment than if the doors were closed." (JA A65).

Parenthetically, the Board reshaped CCAM's petition to clarify that Dominion's license amendment involved a question of radiation releases resulting from a design basis fuel handling accident and did not affect routine radiological releases during normal fuel movements, as CCAM's petition had asserted. (A A65).

Having found standing, the Board set deadlines for CCAM to supplement its petition with contentions detailing its specific concerns so that the Board could decide what issues were suitable for a hearing. UA A67). In its ruling, the Board noted that NRC's standards governing admission of contentions were strict. Quoting extensively from NRC 15

regulations at 10 C.F.R. §2.714 governing the admission of contentions, the Board noted that the NRC's standards require that contentions contain a specific statement of the issue; a brief explanation of the factual or legal basis for the contention that "goes beyond mere allegation and speculation;" a statement of the alleged facts or expert opinion (or both) supporting the contention; and enough information to show that "a genuine dispute" exists "on a materialissue of law or fact," including reference to specific portions of the applicationthe petitioner disputes with "supporting reasonforeach dispute" and identification of any relevant missing information and supporting reasons for that belief." GA A67-A68)(italics in text). The Board also told the petitioner that failure to comply with any of the contention requirements found in NRC regulations at 10 C.F.R. §2.714(b) and (d) were "grounds for dismissing the contention." JA A67).

Subsequently, CCAM filed just one contention. It stated:

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. 9 9 CCAM's "Significant Hazards Consideration" claim was eliminated as an issue in this litigation during a later oral argument. QA A97-A99).

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(IA A73). CCAM did not submit factual material or expert opinion regarding the quantitative value of the asserted "significant increase" or resultant doses to the public.

At an oral argument before the Licensing Board, the Board asked Dominion to provide calculations showing the exact change in radiation dose that would result to members of the public under its design basis accident re-analysis using the alternative source term (measured in TEDE, see pages 7 to 8 supra). (JA A 255-A258, A336).

Dominion submitted the requested calculations to the Board a few weeks later. (JA A117). The calculated dose consequences, comparing four cases of a postulated design basis fuel handling accident inside containment at Millstone using the alternative source term, showed that members of the public would receive an increase of radiation exposure in the event of a design basis accident. But the doses were well below the 25 rem set by regulation and well below the conservative 6.3 rem limit set by the Regulatory Guide."0 (A A121-A122).

10The application analysis using alternative source term, assuming no credit for closure of any containment doors during the release of radiation after a fuel handling accident and a conservative estimate of 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> of 17

After reviewing the calculations, as well as the oral and written arguments, the Licensing Board concluded that CCAM had failed to provide enough detail to support an admissible contention. The Board found:

... although Petitioner CCAM raised a concern that was sufficient to demonstrate standing in this proceeding ... it has not presented any specific issue, supported by a basis stated with reasonable specificity, to show that a genuine dispute exists with regard to whether the application at issue meets the requirements of 10 C.F.R. §50.67(b)(2), or whether the proposed changes in technical specifications are appropriate in light of the requirements of either section 50.67 or the rule on technical specifications, 10 C.F.R. §50.36. Nor, we find, has the Petitioner, under the contention requirements of 10 C.F.R.

§2.714, specifically or directly challenged or controverted any particular part of the application with regard to any legal or factual issue that would make a difference in the outcome of this proceeding, such that it could be entitled to any relief in the proceeding.

UA 142-A143).

The Board explained that its earlier ruling on standing did not make CCAM's contention admissible under the "considerably more stringent" standards for admissibility of contentions. UA A143-A144). The Board fuel decay prior to fuel handling, showed a release of 1.132 rem at the EAB and 0.1485 rem at the LPZ. (See pages 6 to 7 supra and footnotes 3 and 4 supra for discussion of EAB and LPZ. JA A121, see Example 4)).

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said CCAM's fact-based contention "failed to fulfill with sufficient basis or specificity" the requirement to show a genuine issue of law or fact. UA A144) "Mere allegation that increases in offsite releases or increased probability of consequences of an accident will be 'significant' is not enough to demonstrate such a genuine issue," the Board said. (JA A144).

The Board cited CCAM for failing to offer any showing that Dominion did not meet the requirements of section 50.67(b)(2) or section 50.36 governing technical specifications. (JA A144). Summing up, the Board said, .. . although an 'obvious potential for offsite consequences' may be sufficient to show standing, it is not in itself sufficient to support an admissible contention." (JA A144).

Moving on, the Board said that CCAM failed both "explicitly

[and] ... implicitly" to challenge the specific dose calculations using the alternative source term provided by Dominion in its application and amplified in its June 20 submission to the Board. (JA A144). These calculations show "some increase," the Board said, but also "show values that are well below" doses allowed by regulation and regulatory guides.

(JA A144). "According to these calculations," the Board said, "any 19

increases in doses are a very small fraction of the [fuel handling accident]

dose of 6.3 rem (the acceptance criterion in Regulatory Guide 1.183) and an even smaller fraction of the 25 rem TEDE limit prescribed under 10 C.F.R.

§50.67(b)(2)(i), (ii)." GA A144).

Although Dominion did not address "in any significant manner" whether "operational advantages to having free access to containment during fuel handling justified the small calculated increases in public dose," the Board said, CCAM never challenged the proposed dose increases or the operational changes "in a sufficiently specific manner so as to raise a genuine dispute of material fact or law that could lead to any relief in this proceeding." GA A145). The Board dismissed CCAM's contention and terminated the proceeding. GA A145-A146).

5. The Commission Decisions The Commission affirmed the Licensing Board decision, finding that CCAM's appeal merely repeated "the same claims it made before the Board. . . [without] explain[ing] why the Licensing Board decision was wrong." GA A157). The Commission said CCAM's appeal continued to rely "entirely on general and speculative statements about an alleged 20

'significant increase in the amounts of radiological safety' that would have an 'adverse impact' on the public health and safety... [whilel never providling] the necessary alleged facts or expert opinion to support its claim." (A A157).

CCAM's burden was to show how Dominion's application was deficient, the Commission said, but it "never challenges any of

[Dominion's] accident analyses, dose calculations, or its conclusion that postulated radiological releases from a fuel handling accident would not exceed applicable limits even without closing containment penetrations."

(JA A159). Agreeing with the Board, the Commission said CCAM failed to demonstrate any "specific knowledge or understanding of" Dominion's accident analysis, and its contention failed to address the standards for the alternative source term rule or the NRC regulation governing technical specifications. UA A158).

Instead, the Commission said, CCAM attempted once again to resurrect the Licensing Board ruling on standing. "A threshold finding of standing does not render contentions admissible," the Commission said.

21

JA A158). Contentions must "allege, with some basis, that the licensee's application is deficient. This CCAM did not do." (JA A158).

The Commission noted that CCAM's initial objection to the license amendment centered on the licensee's request to keep the equipment hatch open during refueling operations, but CCAM "entirely ignores" the conclusion of Dominion's fuel handling accident analysis that offsite doses to the public "do not come close" to exceeding regulatory limits "even if containment penetrationsare left openfor two hours during an accident." (italics in text). UA A158).

Dominion's fuel handling accident analysis concluded that doors need not be closed at all to meet regulatory limits, the Commission noted, adding that CCAM "provides no basis for questioning that conclusion."

(JA A158-A159). The Commission said that "[alt no point ... did CCAM provide any expert opinion or other factual basis suggesting that

[Dominion's] accident analyses are inaccurate or apply the wrong criteria."

(IA A159). Commission rules governing admissibility of contentions require more than "bald or conclusory allegations," the Commission said.

22

-JA A159). Contentions alleging a deficient application "must identify 'each

_ failure and the supporting reasons for the petitioner's belief."' GA A159).

The Commission said that while CCAM has charged - and Dominion has acknowledged - that the proposed change would result in "some increase in projected doses" in the event of a fuel handling accident, CCAM never provided any analysis of its own to show how a "significant" radiological release would occur. (JA A159).

_ At bottom, the Commission said, Dominion's design basis accident analysis shows, both in its original application and its confirming supplementary calculations, that while there is an increase in offsite dose consequences, that increase remains well below regulatory and guidance limits and "is not significant." (JA A159). "Nothing CCAM provided in this proceeding suggests otherwise," the Commission concluded. GA A159).

But CCAM opposes any radiation increases, whether within regulatory limits or not, the Commission found, noting the following colloquy before the Licensing Board:

ADMIN. JUDGE COLE: Your objection is to any additional dose associated with this operation, this proposed operation.

23

MS. BURTON: Any additional dose that could be ... that could be obviated if the requirements in the technical specifications were maintained.

ADMIN. JUDGE COLE: So it makes no difference that the doses

[under the proposed technical specifications] are less than the applicable regulatory limits. It's the increase that you're objecting to.

MS. BURTON: It's the increase and it's the removal of a barrier that logic dictates should [sic] be removed.

UA A159).

CCAM's argument, the Commission concluded, "amounts to a collateral attack on NRC regulations governing public doses at operating nuclear plants ... [which] is impermissible," the Commission said. UA A159). "Petitioners may not seek an adjudicatory hearing 'to attack generic NRC requirements or regulations, or to express generalized grievances about NRC policies." GA A159)."

The Commission thus affirmed the Licensing Board ruling, concluding that CCAM's "highly generalized concerns do not amount to a litigable 'contention' under our strict pleading rule." JA A160).

"The procedure for seeking a change to an NRC regulation is a petition for rulemaking under 10 C.F.R. §2.802, Subpart H.

24

CCAM asked the Commission to reconsider its decision, relying primarily on the Board's ruling on standing and asserting again that Dominion's proposed changes would "eliminat[e] the requirement that the licensee maintain the operability of doors to containment during fuel handling accidents [which] unnecessarily exposes the public to peril." JA A166).

In denying CCAM's request for reconsideration, the Commission cited CCAM for "inappropriately" persisting in its suggestion "that a Licensing Board finding of standing to intervene equates to an admissible contention." UA A169). The Commission also said CCAM was in error in stating that the license amendment would relieve Dominion of its obligation to maintain the capacity to close the personnel air lock door and the equipment door during a design basis fuel handling accident. Finally, the Commission said CCAM had failed to address any factual or legal error in the Commission's earlier decision. (JA A169-A170).

STANDARD OF REVIEW This Court must determine whether the Commission action affirming the Licensing Board's decision dismissing CCAM's petition to intervene in 25

the Dominion license amendment proceeding was, in the terms of the Administrative Procedure Act ("APA"), "arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.

§706(2)(A); see Rockland County v. NRC, 709 F.2d 766, 776 (2d Cir. 1983),

cert. denied, 464 U.S. 993 (1983). The APA's section 706(2)(A) standard of review is "narrow" and "highly deferential" to agency decisions. Id.

(citations omitted). See also Gully v. Nat'l Credit Union AdministrationBoard, 341 F.3d 155, 162 (2d Cir. 2003). The NRC, not the courts, "must decide the difficult questions concerning nuclear power safety." Riverkeeper Inc. v.

Collins, 359 F.3d 156, 171 (2d Cir. 2004).

In part, this case involves application of the NRC's contention pleading rule, 10 C.F.R. §2.714. An agency's interpretation of its own regulations must be given "controlling weight unless it is plainly erroneous or inconsistent with the regulation." In Re New Times Securities Services, Inc., 371 F.3d 68, 87 (2d Cir. 2004), quoting Bowles v. Seminole Rock

& Sand Co., 325 U.S. 410,414 (1945).

26

SUMMARY

OF ARGUMENT This case presents the straightforward question whether CCAM failed to satisfy the NRC's strict pleading requirements under 10 C.F.R.

§2.714(b) and (d) when it denied CCAM's petition to intervene in a proceeding on Dominion's application for a license amendment. CCAM failed in its single contention to demonstrate a genuine dispute on a material issue, as required by NRC pleading requirements. The contention alleged, without any factual evidence or expert opinion or law for support, that Dominion's proposal to keep containment penetrations open during fuel handling operations would cause a "significant increase in the amounts of radiological effluents" to the public in the event of a fuel handling accident. In the context of the amendment proceeding, an increase in radioactive effluent would be "significant" if and only if the increase exceeded NRC regulatory limits, contrary to Dominion's showing in its license amendment application. CCAM made no allegation that Dominion's calculations were inaccurate, provided no calculations of its own to substantiate its "significant increase" claims, proffered no expert opinion to counter Dominion's findings, and made no argument that the 27

proposed amendment failed to meet the standards set by NRC regulation and guidance. As a result, the Commission acted reasonably when it affirmed the Licensing Board decision rejecting CCAM's request to intervene in Dominion's license amendment proceeding.

At the heart of CCAM's objection to the proposed change is the organization's basic opposition to any change that would cause an increase in radiation dose to the public, even one that falls far below regulatory limits. But as the Commission found, CCAM's contention - asserting, in effect, that the regulations provide insufficient protection to the public -

must fail as an impermissible "collateral attack" on NRC regulations.

Under long-standing Commission procedures, CCAM may not use a licensing hearing as a forum to challenge an NRC regulation, see 10 C.F.R.

§2.758. CCAM's recourse for its grievance is a petition for rulemaking pursuant to 10 C.F.R. §2.802, or use of the NRC public petitioning process under 10 C.F.R. §2.206 to request Commission consideration and response to its safety concerns.

Finally, CCAM submitted numerous claims asserting the Commission acted unreasonably in the Dominion proceeding. None of the 28

claims supported CCAM's sole contention or demonstrated an understanding of NRC regulations, guidance, or procedures, or even an understanding of the very license amendment it was challenging. The Commission reasonably rejected CCAM's arguments.

ARGUMENT THE NUCLEAR REGULATORY COMMISSION LAWFULLY AND REASONABLY DENIED CCAM'S PETITION TO INTERVENE AS UNSUPPORTED BY A SPECIFIC AND DETAILED CONTENTION CCAM's single contention was patently deficient under Commission rules governing the admissibility of contentions and fatally flawed as an impermissible collateral attack on NRC regulations. The Commission did not abuse its discretion when it affirmed the Licensing Board decision dismissing CCAM's contention.

A. The Commission's Denial Of CCAM's Petition To Intervene In Dominion's License Amendment Proceeding Was Grounded In NRC's Strict Pleading Standards Under NRC rules governing the admissibility of contentions, litigable contentions require specificity and detail. See 10 C.F.R. §2.714(b)(2). The current language of NRC's regulations at §2.714(b)(2) is the result of a 1989 29

amendment that "perceptibly heightens the pleading standard" and is, by design, strict. This strictness has been judicially affirmed. Union of Concerned Scientists v. NRC, 920 F.2d 50,52-53 (D.C. Cir. 1990). NRC rules do not permit the type of generalized "notice pleading" that might survive a Rule 12(b) motion in Federal courts under the Federal Rule of Civil Procedure. See Rules of PracticeforDomestic Licensing Procedures-Procedural Changes in the HearingProcess, 54 Fed. Reg. 33168 (August 11, 1989); Duke Energy Corp. (Oconee Nuclear Station, Units 1,2, and 3), CLI-99-11, 49 NRC 328,338. (1999).12 Under NRC's strict intervention rule, 10 C.F.R. §2.714, once a petitioner has shown a redressable injury within the scope of the Atomic Energy Act to justify a finding of standing as a party in the case, the petitioner must then, as a separate matter, submit at least one admissible "contention," that is, an issue to litigate. See 10 C.F.R. §2.714(b)(1). To be 12 In Oconee, the Commission explained that its "strict contention rule serves multiple interests," including "focusling] the hearing process on real disputes," putting all parties "on notice of ... specific grievances" and ensuring that "full adjudicatory hearings" are "triggered" only by parties "able to proffer at least some minimal factual and legal support of their contentions." 49 NRC at 334.

30

admissible, a contention must be supported by a "brief explanation" of its "bases," 10 C.F.R. §2.714(b)(2)(i), and must include a "concise statement of the alleged facts or expert opinion" supporting the contention and on which the petitioner intends to rely, 10 C.F.R. §2.714(b)(2)(ii); a contention must also include [sufficient information. . . to show that a genuine dispute exists with the applicant on a material issue of law or fact."

10 C.F.R. §2.714(b)(2)(iii). A contention may not challenge an NRC regulation. 10 C.F.R. §2.758(a).

1. CCAM's Contention Lacked A Basis Sufficient To DemonstrateA Genuine Dispute On A Material Issue The contention CCAM asserted before the Board was a simple but unexplained claim that Dominion 's proposed amendment may result in a "significant increase" in radioactive emissions:

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.

(JA A130). On its face, this might have been a litigable contention, had CCAM offered to support it with factual evidence or expert opinion elaborating on "significant increase." In the context of the amendment 31

proceeding, an increase in radioactive effluent would be "significant" if and only if the increase exceeded NRC regulatory limits (contrary to Dominion's showing). But CCAM offered no supporting material to explain or even define the alleged "significant increase." CCAM's bare, unsupported words do not present a "genuine dispute ... on a material issue . . ." and do not meet the NRC's stringent regulatory requirements for admission. The contention thus was properly dismissed. 10 C.F.R.

§2.714(b)(2)(ii).

CCAM's brief in this Court points to Dominion's license amendment as published in the FederalRegister, and argues that if the equipment hatch is left open during fuel movements and a fuel handling accident occurs, "there is a greater likelihood of release of radioactivity that might have an impact on those who live nearby the site ... [and] more radioactivity will escape the containment than if the door were closed" . . . "entail[ing] an increased potential for offsite consequences." Pet. Br. 15-16. But CCAM did not submit to the Board any factual material or expert opinion regarding the quantitative value of this "increased potential for offsite consequences." The contention put forth no challenge to Dominion's 32

showing that offsite radiation doses from a design basis accident would remain within NRC regulatory limits. CCAM proffered no expert opinion or other evidence that this showing was wrong. In the absence of any basis for claiming the license amendments were in violation of NRC regulation, the contention failed to raise a material issue. It fell far short of NRC specificity rules and failed to demonstrate CCAM deserved a hearing or would contribute to a hearing. 13 13 CCAM was made aware of the NRC's strict pleading standards because they were stated in detail both in the FederalRegister notice announcing Dominion's amendment request, (JA A10-All), and in the Licensing Board ruling on standing GA A56). In its ruling on standing, the Board quoted the rule itself, directed CCAM to consult the Statement of Considerations for the final 1989 rule amendments tightening contention requirements, the Commission's Statement of Policy on Conduct or Adjudicatory Proceedings,CLI-98-12, 48 NRC 18 (1998), and a recent Commission recent decision on the admissibility of contentions, Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373 (2002). UA A67-69).

Quoting McGuire, the Board told CCAM that the Commission's standard for admitting contentions was "strict by design" and "toughened ... in 1989 because in prior years 'licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation."' GA A65). Despite this tutorial, CCAM presented only a short and conclusory statement that failed to meet the essential requirement for "a specific statement of the issue" it wished to litigate and that it identify "sufficient information ... to show that a genuine dispute exists."

See 10 C.F.R. §2.714(b)(2).

33

Dominion's dose calculations using the alternative source term were provided in its application, discussed at the oral arguments, and submitted in greater detail to the Licensing Board on June 20 at Board request. Those calculations showed "some increase in projected doses," but also that they are a "very small fraction" of 6.3 rem, the fuel handling dose acceptance criterion in Regulatory Guide 1.183,14 and "an even smaller fraction" of the 25 rem dose limit set by §50.67(b)(2)(i) and (b)(2)(ii). Potential doses to members of the public at the outer exclusion area or low population zone were "well under" regulatory limits. (See definition of exclusion area and low population zone in footnotes 3 and 4 supra). UA A144).

As the Commission pointed out, CCAM alleges a lowering of safety resulting from this increase but "does not provide a specific basis for establishing this, sufficient to demonstrate a genuine dispute on a material issue."(JA A144)(emphasis added). Based on CCAM's extremely general contention, unsupported by any factual basis or expert opinion to dispute the results of Dominion's calculation, the parties to any hearing would be uncertain about what issues to prepare for and litigate at a hearing.

14 See pages 7 to 8 supra and footnote 5 supra for discussion of section 50.67 requirements.

34

In affirming the Licensing Board, the Commission stated that CCAM should have provided "expert opinion or otherfactual basis"'5 (emphasis added) showing where Dominion's accident analyses "are inaccurate or apply the wrong criteria" - in other words, provide something tangible to make and support an argument that the proposed change in Dominion's procedures could violate NRC's regulations. CCAM did not come close to meeting this burden.

CCAM's brief seems to miss this point. In Commission practice, it is not enough for a contention simply to make a conclusory assertion that dose increases would be "significant." Unless CCAM alleged, with factual or expert backing, that the increased doses exceeded regulatory limits, the increases could not be understood as "significant" and thus a reason for denying Dominion's license amendment application. Missing this point, CCAM only selectively quotes phrases from the first part of a sentence in the Licensing Board decision that says dose calculations provided on June 20 by Dominion "show some increase in projected doses". (Pet. Br. 10).

'sContrary to CCAM's assertion that the Commission "principally faulted CCAM for not producing an expert witness", Pet. Br 19, the Commission would have given equal weight to "either an expert opinion or otherfactual basis" that met the pleading standards. (JA A159).

35

CCAM neglects to finish the sentence, which concludes "but [Dominion's June 20 calculationslalso show values that are well below allowed public exposures." UA A144)(emphasis added). Not once in its brief does CCAM acknowledge that Dominion's dose calculations fall well below limits set by regulation and the even more conservative regulatory guidance.

At bottom, CCAM's argument to this Court is still another attempt to rehabilitate its "standing-equals-admissible-contention" argument.

Pet. Br. 17-18.16 CCAM persists in this argument, even though the Licensing Board later rejected CCAM's contention because it did not meet the "considerably more stringent" requirement for admitting contentions, UA A143); even though the Commission stated without qualification that

"[a] threshold finding of standing does not render contentions admissible,"

UA A158); even though the Commission told CCAM when it denied its motion for reconsideration that it "inappropriately persists in suggesting that a Board finding of standing to intervene equates to an admissible contention," (JA A169); and even though on appeal to this Court CCAM

'61n judicial proceedings, of course, it is commonplace that plaintiffs with standing do not necessarily have a cognizable merits case. See, e.g.,

Center For Reproductive Law and Policy v. Bush, 304 F.3d 183, 186, 196-97 (2d Cir. 2002). Commission practice is the same.

36

presents no new case law, no new facts, and no expert opinion to support its position.

In fact, CCAM's bald allegations present precisely the kind of situation that NRC's 1989 amendments to its contention rule were designed to protect against, where "licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation ... where, before the amendments, admitted intervenors "often had negligible knowledge of nuclear power issues and, in fact, no direct case to present, but instead attempted to unearth a case through cross-examination." Oconee, 49 NRC at 334.

The bottom line here is that Commission rules and practice reasonably and fairly demand more of CCAM than it provided. It was CCAM's burden to show that its contention - backed with sufficient law, fact, or expert opinion - raised a material issue that warranted further exploration at a hearing. CCAM failed to meet its burden.

2. CCAM May Not Challenge NRC Regulations In A License Amendment Proceeding.

37

Throughout proceedings before the Commission and now in its brief to this Court, CCAM has essentially argued that any change that causes an increase in radiation dose to the public - even if it falls well within regulatory limits - is unacceptable. UA A220). CCAM's argument must fail as it amounts to an impermissible "collateral attack" on NRC regulations.

UA A159). The operable regulatory standardsthat apply to the applicant's license amendment request are the accident dose criteria in 10 C.F.R.

§50.67. Dominion showed it would meet 10 C.F.R. §50.67 even if the doors remained open during the design basis accident. CCAM never attempted to argue that the proposed amendments did not meet the regulations.

CCAM's contention in effect was that the regulations provide insufficient protection. Under long-standing Commission practice, CCAM may bring such an argument before the Commission in a petition for rulemaking pursuant to 10 C.F.R. §2.802, but CCAM may not use a licensing hearing to attack an NRC regulation. See 10 C.F.R. §2.758;17 Oconee, 49 NRC at 334 (1999). "(I)t is hornbook administrative law that an 17 Section 2.758 allows a hearing petition to seek special Commission permission to litigate a claim notwithstanding an apparently controlling regulation. CCAM did not seek such permission.

38

agency need not - indeed, should not -- entertain a challenge to a regulation in an adjudication or a licensing proceeding." Tribune Co. v.

FCC, 133 F.3d 61, 68 (D.C.Cir. 1998). The Commission followed that principle here when it rejected CCAM's effort to argue, in effect, the inadequacy of NRC's accident dose criteria. UA A159).

Because CCAM offered no support for its "significant increase" contention apart from an argument that any increase is "significant" - in effect an attack on NRC regulation -- the Commission properly found the contention inadmissible under the NRC's pleading requirements.

B. Long-Standing Defense-In-Depth Measures Are Being Applied To This Amendment Request.

The license amendment has not issued yet; the NRC staff is continuing its review of all the changes proposed in Dominion's application. See footnote 7 supra. The only legal issue in this case is whether the Commission properly rejected CCAM's lone contention. For the reasons given here, the Commission acted properly and denied intervention. Other claims in CCAM's brief that the Commission acted unreasonably in the Dominion proceeding are not relevant here because 39

they were not submitted to support CCAM's sole contention, but in any case they are readily refuted.

CCAM argues that the Board accepted uncritically Dominion's proposed changes as "safe," Pet. Br. 11; that the Commission "relied entirely on computer calculations provided by Dominion," Pet. Br. 19-20, to determine radiation doses to the public; and that the proposed changes involve "a significant reduction in a margin of safety." Pet. Br. 12. The facts and record argue otherwise.

Contrary to CCAM's suggestion, the NRC has not relied entirely on Dominion's calculations. As part of its review of Dominion's proposal, NRC staff must perform independent calculations to confirm Dominion's analysis results and the conclusions drawn from those results. See NUREG-0800, Standard Review Plan, Chapter 15.0.1, Radiological ConsequenceAnalyses Using Alternative Source Terms. ("Standard Review Plan"). The Standard Review Plan, which provides instructions to the NRC staff for the performance of reviews on license amendment applications involving the alternative source term, establishes, in part, the scope and nature of the review to be performed for each radiological 40

analysis described in the applicant's submittal. This includes reviews of the applicant's models, assumptions, and parameters, as well as guidance for the performance of independent calculations by the NRC staff. The NRC staff's review is documented in the safety evaluation report that will accompany the issuance of an approved license amendment.

At the oral presentation before the Licensing Board, despite a wide-ranging discussion of other issues, the Board persistently returned its focus to its issue of highest concern: the effect the proposed changes under the alternative source term would have on radiation dose to the public.

(JA A238-A258; A331-A332; A336-A337).

For the sake of comparison, the Board ordered the licensee to provide additional calculations to illustrate the increase in radiation dose to the public compared to a fuel handling accident under the unamended procedure, using the TEDE computation method. JA A258); see TEDE discussion at pages 7 to 8 supra. The increase was not large, and in any event, as the Commission decision noted, the estimated dose to the public under the change proposed was still "well under the Regulatory Guide 1.183 criterion." UA A159). Under Dominion's calculations, the design 41

basis accident analysis assumed all released radioactive material escaped to the environment over a two-hour period with the doors open the whole time. Even with the equipment door open, limits set by regulation and guidance would not be exceeded. Nevertheless, Dominion proffered a number of operating procedures, or administrative controls, as qualifications on the proposed changes to provide defense-in-depth provisions. (JA A176-A177)

For example, designated personnel would be available to close containment penetrations in the event of a fuel handling accident; procedural controls would ensure cables or hoses passing through containment openings could be quickly removed; a closure plan would be in place for each containment opening, with designated personnel responsible for closing that opening; and estimates would be made of time for closure. (JA A176-A177).

As the Commission decision indicates UA A160), CCAM's arguments demonstrate that "it did not understand the nature of the amendment."

That apparently remains so. CCAM persists in asserting that Dominion wants to substitute "unsubmitted and unreviewed administrative 42

controls," Pet. Br.16, for current door closure requirements. But Dominion's amendment request simply sought licensee discretion to forgo closing the door in circumstances where closure "would represent a significant radiological hazard to the personnel involved." (JA A177). The NRC staff already noticed and remedied any concerns about this by requesting additional information from Dominion about its operating procedures (administrative controls) that must be in place to invoke this worker protection clause. Dominion submitted details about these controls in response to the staff's Request For Additional Information ("RAI") in advance of the oral presentation before the Licensing Board. (JA A110). In addition to pointing to administrative controls described in its license amendment application at attachment 2, (JA 176-A177), Dominion's submittal also laid out the conditions that must occur before the worker protection provision could be invoked:

... on implementation, the Shift Manager, with assistance from Health Physics personnel, will assess localized radiological conditions to determine if a significant radiological hazard exists to onsite personnel due to an unexpected condition. This determination would be based upon not exceeding the emergency worker dose limit considering measured dose rates from local area radiation monitoring equipment or portable 43

instrumentation and estimates of the stay times that would be necessary to complete the activity.

QA A114-A115).

CCAM's criticism of the administrative controls ignores Dominion's pre-existing authority under NRC regulations to keep containment penetrations open beyond time periods authorized in license conditions and technical specifications if emergency conditions so require. CCAM was made aware of this regulatory provision, 10 C.F.R. §50.54(x), because it was cited and discussed at the oral conference before the Board.

UA A284). 1 8 The Commission, of course, is not so concerned with regulatory pleading compliance that it turns a deaf ear to safety concerns.

Commission policy and procedures are demonstrably to the contrary.

'110 C.F.R. 54(x) provides:

A licensee may take reasonable action that departs from a license condition or a technical specification

... in an emergency when this action is immediately needed to protect the public health and safety and no action consistent with license conditions and technical specifications that can provide adequate or equivalent protection is immediately apparent.

44

The Commission's technical staff reviews every license application thoroughly, whether there is a hearing request or not. In addition, CCAM's failure to state a contention suitable for Licensing Board litigation does not deprive CCAM itself of future access to the Commission on safety grievances. The Commission maintains a process under 10 C.F.R. §2.206 to consider and respond to safety concerns. CCAM also remains free to petition the Commission for rulemaking if CCAM believes the agency's accident dose criteria in 10 C.F.R. §50.67 are inadequate.

See 10 C.F.R. §2.802.

45

CONCLUSION For the foregoing reasons, the petition for review should be denied.

Respectfully Submitted, THOMAS L. SANSONETTI KAREN D. CYR Assistant Attorney General General Counsel I6 <

GREER S. GOLDMAN 0 F. CORDES, JR.

ELIZABETH ANN PETERSON Solicitor Attorneys Appellate Section Environment and Natural E. LEO SLAGGIE Resources Division Deputy Solicitor Department of Justice P.O. Box 23795 Washington D.C. 20026-3795 GERALDINE R. FEHST (202) 514-3888 Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dated: Aug. 6,2004 (301) 415-1614 46

CERTIFICATE OF COMPLIANCE UNDER FRAP 32(a)(7)(C)

I hereby certify that the number of words in the Brief for the Federal Respondents, excluding the Table of Contents and Table of Authorities, is 8,773, as counted by the Corel WORDPERFECT 8 program.

Respectfully submitted, Ae.7 _

"Geraldine R. Fehst Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Dated: August 6, 2004

CERTIFICATE OF SERVICE I certify that on August 6, 2004, copies of the foregoing Brief for the Federal Respondents were served by mail, postage prepaid, upon the following counsel:

Nancy Burton, Esq.

147 Cross Highway Redding Ridge, Ct. 06876 David A. Repka, Esq.

Adam J. Herman, Esq.

Winston & Strawn LLP 1400 L Street, N.W.

Washington, DC 20005 Lillian M. Cuoco, Esq.

Dominion Resources Services, Inc.

Millstone Power Station Rope Ferry Road Waterford, Ct. 06385 Geraldine R. Fehst Attorney

REGULATORY ADDENDUM Regulations 10 C.F.R. §50.67 ................................ A-1 to A-2 10 C.F.R. §2.714(b), (d) .......................... A-3 to A-4

CODE OF FEDERAL REGULATIONS TITLE 10--ENERGY CHAPTER I--NUCLEAR REGULATORY COMMISSION PART 50-DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES ISSUANCE, LIMITATIONS, AND CONDITIONS OF LICENSES AND CONSTRUCTION PERMITS

§50.67 Accident source term.

(a) Applicability. The requirements of this section apply to all holders of operating licenses issued prior to January 10,1997, and holders of renewed licenses under part 54 of this chapter whose initial operating license was issued prior to January 10, 1997, who seek to revise the current accident source term used in their design basis radiological analyses.

(b) Requirements.

(1) A licensee who seeks to revise its current accident source term in design basis radiological consequence analyses shall apply for a license amendment under §50.90. The application shall contain an evaluation of the consequences of applicable design basis accidents' previously analyzed in the safety analysis report.

'The fission product release assumed for these calculations should be based upon a major accident, hypothesized for purposes of design analyses or postulated from considerations of possible accidental events, that would result in potential hazards not exceeded by those from any accident considered credible. Such accidents have generally been assumed to result in substantial meltdown of the core with subsequent release of appreciable quantities of fission products.

A-l

(2) The NRC may issue the amendment only if the applicant's analysis demonstrates with reasonable assurance that:

(i) An individual located at any point on the boundary of the exclusion area for any 2-hour period following the onset of the postulated fission product release, would not receive a radiation dose in excess of 0.25 Sv (25 rem) 2 total effective dose equivalent (TEDE).

(ii) An individual located at any point on the outer boundary of the low population zone, who is exposed to the radioactive cloud resulting from the postulated fission product release (during the entire period of its passage), would not receive a radiation dose in excess of 0.25 Sv (25 rem) total effective dose equivalent (TEDE).

(iii) Adequate radiation protection is provided to permit access to and occupancy of the control room under accident conditions without personnel receiving radiation exposures in excess of 0.05 Sv (5 rem) total effective dose equivalent (TEDE) for the duration of the accident.

2 The use of 0.25 Sv (25 rem) TEDE is not intended to imply that this value constitutes an acceptable limit for emergency doses to the public under accident conditions. Rather, this 0.25 Sv (25 rem) TEDE value has been stated in this section as a reference value, which can be used in the evaluation of proposed design basis changes with respect to potential reactor accidents of exceedingly low probability of occurrence and low risk of public exposure to radiation.

A-2

CODE OF FEDERAL REGULATIONS TITLE 10-ENERGY CHAPTER I-NUCLEAR REGULATORY COMMISSION PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS SUBPART G-RULES OF GENERAL APPLICABILITY

§2.714 Intervention.

(a)(1).. any person whose interest may be affected by a proceeding and who desires to participate as a party shall file a written petition for leave to intervene (b)(1). . . the petitioner shall file a supplement to his or her petition to intervene that must include a list of the contentions which petitioner seeks to have litigated in the hearing. A petitioner who fails to file a supplement that satisfies the requirements of paragraph (b)(2) of this section with respect to at least one contention will not be permitted to participate as a party.

(b)(2) Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide

- the following information with respect to each contention:

(i) A brief explanation of the bases of the contention.

(ii) A concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing, together with references to A-3

those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion.

(iii) Sufficient information (which may include information pursuant to paragraphs (b)(2) (i) and (ii) of this section) to show that a genuine dispute exists with the applicant on a material issue of law or fact.

This showing must include references to the specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief.

(d) The Commission, the presiding officer, or the Atomic Safety and Licensing Board designated to rule on petitions to intervene and/or requests for hearing shall . . . in ruling on-(d)(2) The admissibility of a contention, refuse to admit a contention if:

(i) The contention and supporting material fail to satisfy the requirements of paragraph (b)(2) of this section; or (ii) The contention, if proven, would be of no consequence in the proceeding because it would not entitle petitioner to relief.

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