ML050610296

NRC Staff Answer Opposing the Petition for Late Intervention of the County of Suffolk of the State of New York

ML050610296
Person / Time
Site:	Millstone
Issue date:	02/28/2005
From:	Poole B NRC/OGC
To:	Atomic Safety and Licensing Board Panel
Poole BD 301-415-1556
References
ASLBP 05-837-01-LR
Download: ML050610296 (19)

Text

1 See Petition for Late Intervention of the County of Suffolk of the State of New York, dated February 1, 2005 (Petition).

2 See Dominion Nuclear Connecticut, Inc., Millstone Power Station, Units 2 and 3; Notice (continued...)

February 28, 2005 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

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DOMINION NUCLEAR CONNECTICUT, INC.

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Docket Nos. 50-336, 50-423

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(Millstone Power Station, Units 2 & 3)

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ASLBP No. 05-837-01-LR NRC STAFF ANSWER OPPOSING THE PETITION FOR LATE INTERVENTION OF THE COUNTY OF SUFFOLK OF THE STATE OF NEW YORK INTRODUCTION Pursuant to 10 C.F.R. § 2.309(h)(1), the staff of the Nuclear Regulatory Commission (Staff) herein responds to the late-filed intervention petition of the County of Suffolk (County).1 As discussed below, the County has not demonstrated good cause for its late filing, and a balancing of the other factors specified in 10 C.F.R. § 2.309(c) does not support the grant of the petition. Furthermore, the Petition does not set forth a valid contention. Accordingly, the Staff opposes the Petition and recommends that it be denied.

BACKGROUND By letter dated January 20, 2004, Dominion Nuclear Connecticut, Inc. (DNC) submitted applications to renew Operating License Numbers DPR-65 and NPF-49 for Millstone Power Station, Units 2 and 3, for an additional 20 years. The current operating licenses for Millstone, Units 2 and 3, expire on July 31, 2015, and November 25, 2025, respectively. On March 12, 2004, the NRC published in the Federal Register a notice of acceptance for docketing and opportunity for a hearing regarding the license renewal applications.2 In the notice, and in accordance with 2(...continued) of Acceptance for Docketing of the Applications and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. DR-65 and NPF-49 for an Additional 20-Year Period, 69 Fed. Reg. 11,897 (Mar. 12, 2004).

3 See Motion to Intervene of the County of Suffolk of the State of New York, dated December 17, 2004 (Motion).

4 See Letter from A. Vietti-Cook to C. Malafi dated December 27, 2004.

regulations, the NRC established a sixty-day period for interested persons to file petitions to intervene and requests for hearing, such that timely petitions were due to be filed by May 11, 2004

- more than nine months ago. See 10 C.F.R. § 2.309(b). The notice specified:

Nontimely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the petition, request and/or contentions should be granted based on a balancing of the factors specified in 10 C.F.R. § 2.309(a)(1)(i)-(viii).

Id. at 11,898. Approximately seven months after the date specified to file intervention petitions, the County filed a Motion to Intervene.3 Subsequently, on December 27, 2004, the Secretary of the Commission rejected the Countys Motion for failure to address the late-filing factors set forth in 10 C.F.R. § 2.309(c)(1).4 The Secretary noted in her letter that the County could file a petition for late intervention up to the time that the NRC made a final decision either to grant or deny DNCs license renewal request. Thereafter, on February 1, 2005, the County filed the instant Petition.

DISCUSSION A.

The Petition Does Not Meet the Standards Governing Late Filing.

As discussed above, the Commissions notice of opportunity for hearing, published in the Federal Register in March 2004, provides that any person whose interest may be affected by this proceeding and who wishes to participate as a party must file its request within 60 days of the publication of the notice - or by May 11, 2004. Notwithstanding this requirement, the Countys 5 Although these regulations were revised recently (see Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004)), they incorporate the substance of the Commissions long-standing late-filed contention requirements. Compare 10 C.F.R. § 2.309(c) and (f)(2), with 10 C.F.R. § 2.714(a)(1)(i)-(v) and (b)(2) (2004); see also 69 Fed. Reg. at 2221.

Petition was not filed until more than nine months after the notice was published. This request is untimely in the extreme.

The Commissions regulations require that a late petitioner must demonstrate that its request should be granted, based upon a balancing of the factors specified in 10 C.F.R. § 2.309(c)(1). That regulation provides, in pertinent part:

(i)

Good cause, if any, for the failure to file on time; (ii)

The nature of the requestor's/petitioner's right under the

[Atomic Energy] Act to be made a party to the proceeding; (iii)

The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; (iv)

The possible effect of any order that may be entered in the proceeding on the requestor's/petitioner's interest; (v)

The availability of other means whereby the requestor's/petitioner's interest will be protected; (vi)

The extent to which the requestor's/petitioner's interests will be represented by existing parties; (vii)

The extent to which the requestor's/petitioner's participation will broaden the issues or delay the proceeding; and (viii)

The extent to which the requestor's/petitioner's participation may reasonably be expected to assist in developing a sound record.

10 C.F.R. § 2.309(c).5 Petitioners seeking admission of late petitions bear the burden of showing that a balancing of these factors weighs in favor of admittance. Baltimore Gas & Elec. Co.

(Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 347 (1998) (noting that the Commission has summarily dismissed petitioners who failed to address the factors for a late-filed petition). The first factor, whether good cause exists for the failure to file on time, is entitled to the most weight. State of New Jersey (Department of Law and Public Safety),

CLI-93-25, 83 NRC 289, 296 (1993). In this regard, the petitioner must show not only why it did not file in the time provided in the notice of opportunity for hearing, but also why it did not file as soon as possible thereafter. Id. at 295. Where no showing of good cause for the lateness is tendered, petitioners demonstration on the other factors must be particularly strong.

Texas Utils. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 73 (1992) (quoting Duke Power Co. (Perkins Nuclear Station, Units 1, 2, & 3), ALAB-431, 6 NRC 460, 462 (1977)). The fifth and sixth factors, the availability of other means to protect the petitioners interest and the ability of other parties to represent the petitioners interest, are less important than the other factors, and are therefore entitled to less weight. See id. at 74.

A balancing of these factors, as applicable to the Countys Petition, demonstrates that it should be denied. The Petition must be denied because it is late without good cause. In this regard, the County states:

Upon information and belief, the County received no official notice of the subject license renewal proceedings. Publication [of] notice in the Federal Register was insufficient to put the County on notice to allow meaningful participation in the hearing.

Upon information and belief, actual notice of the license renewal proceedings was not received until well after the deadline for timely intervention had expired. Upon information and belief, since the County was out-of-state (albeit within 10 miles of the Millstone facility), the County did not receive actual notice timely through articles/notices published in local Connecticut media or by the State of Connecticut.

Petition at 5. These justifications are insufficient. The Federal Register Act expressly provides that publication of a notice in the Federal Register constitutes notice to all persons residing within the States of the Union. 44 U.S.C. § 1508; Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 & 2), ALAB-292, 2 NRC 631, 646-647, n.18 (1975); Florida Power & Light Co.

(Turkey Point Nuclear Generating Station, Units 3 & 4), LBP-79-21, 10 NRC 183, 192 (1979) 6 See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4, LBP-01-6, 53 NRC 138, 146 (2001), affd on other grounds, CLI-01-17, 54 NRC 3 (2001)

(reaffirming the applicability of the proximity presumption in license renewal proceedings. Under the proximity presumption, the NRC recognizes a presumption that persons who live, work or otherwise have contact within the area around the reactor have standing to intervene if they live within close proximity of the facility (e.g., 50 miles)). In this vein, local government entities may have standing to intervene because they are in a position analogous to that of an individual living or working within a few miles of the plant. Power Authority of the State of New York (James FitzPatrick Nuclear Power Plant; Indian Point, Unit 3), CLI-00-22, 52 NRC 266, 294-95 (2000).

(citing Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947), which held that publication in the Federal Register gives legal notice to all citizens). Therefore, ignorance of the publication of the Federal Register notice does not constitute good cause for a belated hearing request.

Consolidated Edison Co. of New York (Indian Point, Unit No. 2), LBP-82-1, 15 NRC 37, 40 (1982).

Moreover, a Federal Register notice constitutes actual notice to all persons, whether or not the notice is actually seen. Jersey Central Power & Light Co. (Oyster Creek Nuclear Generating Station, LBP-77-58, 5 NRC 500, 506 n.4 (1977) (citing 44 U.S.C. § 1508). Furthermore, the County did not state when it received actual notice, and failed to make any showing as to whether its filing was made as soon as possible after actual notice was received. The County has, therefore, not established good cause for late filing.

A balancing of the other factors specified in 10 C.F.R. § 2.309(c)(1) does not support the grant of the Petition. Factors (ii) and (iii) (the nature of the petitioners (ii) right to be made a party to the proceeding, and (iii) property, financial, or other interest in the proceeding) weigh in favor of the County. The Staff does not oppose the Countys standing to intervene in this matter, based on its representations that (1) portions of Suffolk County - Fishers Island and Plum Island - are within the 10-mile plume exposure pathway emergency planning zone; and (2) that much of the remainder of Suffolk County is located within 50 miles of Millstone Power Station. Petition at 2.6 Factor (iv) weighs in the Countys favor, as any order that may be entered with respect to its 7 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3),

LBP-04-15, 60 NRC 81 (2004) (denying two motions for stay and petition for leave to intervene and request for hearing filed by Connecticut Coalition Against Millstone (CCAM)); Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), LBP-04-22, 60 NRC 379 (2004)(denying CCAMs motion for reconsideration and request for leave to amend petition); Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC __ (slip op.

Dec. 8, 2004) (affirming the Licensing Boards orders, denying CCAMs appeals, and terminating the proceeding).

8 The County states that this information includes updated information about population, tourist attractions or other congested areas, roadways and traffic, health care providers, police and rescue services, farms and farm products produced in the County, drinking water data and any other information which would be necessary to address health and safety needs of residents or to tailor an evacuation plan to the Countys unique geography and circumstances. Petition at 4-5.

Petition will affect its interest. Factors (v) and (vi) weigh in favor of the County, as no other participant has been admitted in this proceeding.

However, factor (vii) weighs against the County. The grant of the Petition at this late stage of the proceeding could indeed result in a broadening of the issues and/or substantial delay.

One petitioner filed a timely intervention petition, and all of the issues associated with that petition have long since been resolved and the proceeding terminated.7 The contentions raised by the County are new and were not brought before the Licensing Board in a timely fashion. The Petition, in essence, would re-commence a closed case. Accordingly, this factor should be viewed as weighing against the grant of the petition.

Finally, factor (viii) also weighs against the County, because the Petition fails to satisfy Commission requirements that it show with particularity the precise issues the petitioner plans to address, and that it identify its potential witnesses, and summarize their proposed testimony.

State of New Jersey, CLI-93-25, 38 NRC at 296; Comanche Peak, CLI-92-12, 36 NRC at 74.

Rather, the County states generally that it will provide updated data and information to assist the Commission in developing a sound record. Petition at 4.8 The discussion provided is not specific enough to weigh this factor in favor of granting the Petition.

9 As discussed above, the Staff does not challenge the Countys standing in this proceeding.

In sum, good cause has not been shown for the lateness of the County Petition and, on balance, the Staff does not find that the seven additional factors weigh strongly in favor of the County. For these reasons, the Petition should be denied.

B.

The Countys Petition Fails for Lack of a Valid Contention.

Even if the Countys late-filed Petition were found to satisfy the standards for late filing under Section 2.309(c), the County has nonetheless failed to submit an adequate Petition,9 because it has failed to proffer an admissible contention.

1.

Legal Standards Governing the Admission of Contentions To gain admission to a proceeding as a party, a petitioner must submit at least one admissible contention that meets the requirements of 10 C.F.R. § 2.309(f). 10 C.F.R. § 2.309(a).

This regulation requires a petitioner to:

(i) provide a specific statement of the issue of law or fact to be raised or controverted; (ii) provide a brief explanation of the basis for the contention; (iii) demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) provide a concise statement of the alleged facts or expert opinions which support the requestor's/petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and 10 Although the Commission recently revised its Rules of Practice at 10 C.F.R. Part 2, the provisions of § 2.309 incorporate the longstanding contention support requirements of former

§ 2.714 - no contention will be admitted for litigation in any NRC adjudicatory proceeding unless these requirements are met. 69 Fed. Reg. at 2221.

(vi) provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to 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.

10 C.F.R. § 2.309(f)(1).10 The Commission has emphasized that its rules on contention admissibility establish an evidentiary threshold more demanding than a mere pleading requirement and are strict by design. Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), pet. for reconsideration denied, CLI-02-1, 55 NRC 1 (2002). Failure to comply with any of these requirements is grounds for dismissing a contention. See Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation),

CLI-99-10, 49 NRC 318, 325 (1999).

The contentions should refer to the specific documents or other sources of which the petitioner is aware and upon which he or she intends to rely in establishing the validity of the contentions. Millstone, CLI-01-24, 54 NRC at 358, citing Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 & 3), CLI-99-11, 49 NRC 328, 333 (1999). The petitioner must submit more than bald or conclusory allegation[s] of a dispute with the applicant. Id.

Furthermore, the scope of a license renewal proceeding is limited, in both the safety and environmental contexts. Review of safety issues is limited to a review of the plant structures and components that will require an aging management review for the period of extended operation and the plants systems, structures and components that are subject to an evaluation of time-limited 11 That section states, in pertinent part: A request for hearing or petition for leave to (continued...)

aging analyses. Millstone, LBP-04-15, 60 NRC at 90, affd, CLI-04-36, 60 NRC __ (slip op.

Dec. 8, 2004); Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-26, 56 NRC 358, 363-64 (2002)(citations omitted)(emphasis in original);

Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-14, 48 NRC 39, 41 (1998). See 10 C.F.R. §§ 54.21(a) and (c); 54.4.

The scope of the environmental review is limited in accordance with 10 C.F.R. §§ 51.71(d) and 51.95(c). Turkey Point, CLI-01-17, 54 NRC at 11-13. As reflected in Turkey Point, consideration of environmental issues in the context of license renewal proceedings is specifically limited by NRC regulations in 10 C.F.R. Part 51 and by the NRCs Generic Environmental Impact Statement (GEIS) for License Renewal of Nuclear Plants (NUREG-1437). A number of environmental issues potentially relevant to license renewal are classified in 10 C.F.R. Part 51, Subpart A, Appendix B as Category 1" issues, which means that the Commission resolved the[se]

issues generically for all plants and those issues are not subject to further evaluation in any license renewal proceeding. Turkey Point, LBP-01-17, 53 NRC at 152-53. The remaining issues in Appendix B designated as Category 2" issues must be addressed by the Applicant in its environmental report, and in the NRCs supplemental environmental impact statement for the facility at issue pursuant to Sections 51.71(d) and 51.95(c). Id.

2.

The County Has Not Set Forth a Valid Contention.

As an initial matter, in its Petition, the County states that it will elaborate upon the basis for this petition in its formal submission of contentions, and that it reserves the right to expand upon and supplement the contentions submitted herein. Petition at 6. However, it is clear that, under the NRCs recently-revised rules of practice, proposed contentions are to be filed as part of the initial request for hearing and petition for leave to intervene. See 10 C.F.R. § 2.309(f)(1).11 11(...continued) intervene must set forth with particularity the contentions sought to be raised.

Furthermore, as stated in 10 C.F.R. § 2.309(f)(2) (emphasis added), Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to the petitioner. As discussed herein, once the time for filing an intervention petition has passed, the Commissions regulations provide that non-timely filings may be considered only upon a determination by the Licensing Board that the late-filing criteria in 10 C.F.R. § 2.309(f)(i)-(iii) are met. Under these criteria, new or amended contentions may be admissible depending, among other things, on the previous unavailability of the information upon which the new or amended contentions are based. However, the County has no right to supplement its already late contentions without also satisfying the late filing rules with respect to any subsequent filing.

In any event, as discussed below, none of the Countys three proffered contentions, all of which relate to emergency planning issues, constitutes an admissible contention in a license renewal proceeding.

a.

Inadequate Evacuation Plan for Areas in Suffolk County within the Ten (10)

Mile Emergency Zone and Non-Compliance with Federal Regulations Regarding Such Plans In its first contention (County Contention A), the County contends that [t]he Millstone Evacuation Plan which exists for the 10-mile emergency zone is seriously flawed. Petition at 6.

The crux of County Contention A is that Dominion is not in compliance with NUREG-0654, Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants (November 1980), in various respects. Specifically, the County argues:

Millstones evacuation time estimates (ETEs) for Fishers Island and Plum Island, prepared 12 The County appears to be relying on a report prepared by James Lee Witt Associates, LLC, Review of Emergency Preparedness of Areas Adjacent to Indian Point and Millstone (Witt Report). See Petition at 9.

by Earth Tech in a 1997 study not specifically cited by the County,12 used outdated population information from 1990, and outdated roadway and operational data.

Petition at 7.

The possibility of shadow evacuations in Connecticut and from the Southold area was not considered in the Earth Tech study. Id. at 8.

A transportation or coordination plan with the State and local emergency preparedness officials for Fishers Island evacuation was not included in the Earth Tech study. Id.

There was no plan for Plum Island evacuees brought to Orient Point. Id.

The time used by the Earth Tech study for emergency warnings to diffuse throughout a population was not justified, was not consistent with accepted diffusion rates and could have artificially reduced the overall ETEs. Id.

Within and beyond the 10-mile emergency zone, there is a likelihood of significant unnecessary evacuation. Id.

In addition, citing the Witt Report, the County states that the Millstone Emergency plan is out of compliance with many parts of the federal regulations. Specifically, in contravention of NUREG-0654,Section II.J.10.m, the Millstone Plan failed to provide the basis for choosing protective action recommendations. Id. In addition, contrary to NUREG-0654,Section II.H.7., the Millstone Plan failed to discuss installation of off-site radiological monitoring equipment in the vicinity of the nuclear facility.

This contention is inadmissible because it is outside the scope of the proceeding, is not material to the findings the NRC must make to support the action that is involved in the proceeding; and does not set forth a specific factual or legal basis. See 10 C.F.R. § 2.309(f)(1)(iii)-vi).

13 Evacuation is considered in the development of onsite and offsite emergency response plans. See 10 C.F.R. § 50.47(b)(10).

14 See also 10 C.F.R. § 50.47(a)(1), which specifically provides that [n]o finding under this section is necessary for issuance of a renewed nuclear power reactor operating license.

In addition, an argument that a guidance document has not been complied with is insufficient to form the basis of a contention.

First, the Commission has previously held that emergency planning issues do not come within the NRCs safety review at the license renewal stage because they are already the focus of ongoing regulatory processes. Turkey Point, CLI-01-17, 54 NRC at 10. In this regard, the Commission has stated:

The Commission has various regulations establishing standards for emergency plans. See 10 C.F.R. §§ 50.47, 50.54(s)-(u); Appendix E to Part 50. These requirements are independent of license renewal and will continue to apply during the renewal term. They include provisions to ensure that the licensees emergency plan remains adequate and continues to meet sixteen performance objectives.

Through mandated periodic reviews and emergency drills, The Commission ensures that existing plans are adequate throughout the life of any plant even in the fact of changing demographics, and other site-related factors... [D]rills, performance criteria, and independent evaluations provide a process to ensure continued adequacy of emergency preparedness. 56 Fed. Reg. at 64,966.

Emergency planning, therefore, is one of the safety issues that need not be re-examined within the context of license renewal.

Turkey Point, CLI-01-17, 54 NRC at 9 (emphasis added). Issues pertaining to the effectiveness of evacuation plans are part of emergency planning,13 and, therefore, do not fall within the scope of a license renewal proceeding.14 See also Millstone, LBP-04-15, 60 NRC at 96-97. Nowhere in the contention does the County raise an issue related to the detrimental effects of aging, and therefore, the proposed contention falls outside of the scope of the proceeding. See McGuire, CLI-02-26, 56 NRC at 363-64.

Furthermore, County Contention A does not set forth the requisite specific factual or legal basis. The Commissions regulations require a detailed, fact-based showing that a genuine 15 Further, the Countys statements of the sources on which it intends to rely fall far short of the requirements set forth in 10 C.F.R. § 2.309(f)(1)(v). For each proposed contention, including County Contention A, the County states that it intends to rely upon records and documents maintained by various government agencies. See Petition at 14. A simple reference to a large number of documents does not provide a sufficient basis for a contention. Duke Cogema Stone

& Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-01-35, 54 NRC 403, 465 (2001), citing Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2),

CLI-98-25, 48 NRC 325, 348 (1998). At a minimum, the petitioner is obliged to clearly reference and then summarize the information relied upon. Id. In addition, as basis for all of its proposed contentions, the County states that it intends to rely upon such additional sources and documents as are a matter of public record and as may be disclosed in discovery in these proceedings.

Petition at 14. It is well established that a petitioner may not obtain discovery to assist it in framing contentions. See Calvert Cliffs, CLI-98-25, 48 NRC at 351 (and cases cited therein).

dispute of law or fact exists. See McGuire, CLI-02-14, 55 NRC at 289. A contention alleging that an application is deficient must identify each failure and the supporting reasons for the petitioners belief. See Millstone, CLI-03-14, 58 NRC at 216 (To trigger an adjudicatory hearing, a petitioner must do more than submit bald or conclusory allegations of a dispute with the applicant).

The County in no way challenges the license renewal application with specificity, but rather makes a number of statements, without supporting reasons for its beliefs, regarding insufficient ETEs in use at the facility currently, and other emergency planning problems.15 These blanket assertions, not associated with the license renewal application, fail to provide the requisite specificity for admissibility of this contention.

In addition, at bottom, the County argues that DNC is not in compliance with NUREG-0654.

This does not raise a litigable issue, because an assertion of noncompliance with a regulatory guide is an insufficient basis for a contention. Staff regulatory guides are not regulations and do not have the force of regulations. An applicant is free to rely on a regulatory guide, but may take alternative approaches to meet applicable legal requirements. See Curators of the Univ. of Mo.,

CLI-95-8, 41 NRC 386, 397 (1995). Therefore, the assertion in County Contention A of failure to comply with a regulatory guide is, without more, inadequate to meet NRC contention pleading requirements. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-91-35, 34 NRC 163, 179 (1991). For these reasons, County Contention A is inadmissible.

b.

The Town of Southold and the County Have Unique Characteristics Which Should Be Considered in an Evacuation/Emergency Plan Pursuant to 10 C.F.R. § 50.47.

In its second contention (County Contention B), noting that there is no evacuation and/or emergency plan in place for the Town of Southold or other areas of Suffolk County beyond the 10-mile emergency protection zone, the County argues that, pursuant to 10 C.F.R. § 50.47, local conditions require the expansion of evacuation plans to include the Town of Southold and other areas of Suffolk County potentially affected by a radiological emergency or threat.

Petition at 10-12. Specifically, the County states:

Populations in tourist areas may swell as much as ten times during high tourist seasons, and there is only [one] major roadway (Route 25) to use for an evacuation. In addition, persons may evacuate on their own volition even without official directions to evacuate.

Route 25 is already extremely congested and travel is extremely slow during peak tourist times. Petition at 10-11.

Upon information and belief, wind and weather conditions may contribute to both the size of a plume and the difficulty of an evaluation. Id. at 11.

Suffolk County has a significant percentage of residents who are foreign-born, do not speak English, or do not speak English very well. Id.

As is the case for County Contention A, this contention is inadmissible because it is outside the scope of the proceeding, is not material to the findings the NRC must make to support the action that is involved in the proceeding; and does not set forth a specific factual or legal basis.

See 10 C.F.R. § 2.309(f)(1)(iii)-(vi).

As discussed above, it is well settled that emergency planning issues are outside the scope of a license renewal proceeding. As stated by the Licensing Board with respect to the earlier petition filed with respect to these license renewal applications:

The Commission has stated that because the agencys ongoing regulatory process ensures that existing emergency plans are adequate throughout the life of any facility, notwithstanding changing demographics and other site-related factors, [e]mergency planning

... is one of the safety issues that need not be re-examined within the context of license renewal. See Florida Power and Light Co.

(Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 9 (2001).

Millstone, LBP-04-15, 60 NRC at 96-97; Millstone, LBP-04-22, 60 NRC 379 (denying CCAMs motion for reconsideration and request for leave to amend petition), affd, Millstone, CLI-04-36, 60 NRC __ (slip op. Dec. 8, 2004). In addition, here again, the County fails to raise an issue related to the detrimental effects of aging, and therefore the proposed contention falls outside the scope of the proceeding. See McGuire, CLI-02-26, 56 NRC at 363-64. Finally, the County again completely fails to demonstrate that a genuine dispute exists with the applicant on a material issue of law or fact. To do so, the County must include references to specific portions of the license renewal application that it disputes and the supporting reasons for each dispute, or, if the County believes that the license renewal application lacks information on a relevant matter as required by law, it would have had to identify each failure and the supporting reasons for its belief.

See 10 C.F.R. § 2.309(f)(1)(vi). The County simply does not take issue with anything in - or purportedly left out of - the license renewal application. Accordingly, this contention must fail.

c.

Off-site Evacuation Plans and Other Emergency Plans Maintained by the Millstone Facility Fail to Protect the People of Suffolk County.

The Countys third contention (County Contention C), at bottom, appears to be a general statement of dissatisfaction with the current emergency plans in place at Millstone. The County states the proposition that the plans do not include a realistic consideration of spontaneous evacuation, the unique consequences of a terrorist attack or the unique characteristics of Suffolk County. Petition at 12. Moreover, the County restates its position that the plans are outdated and incomplete. Id. For the reasons discussed above with respect to County Contentions A and B, this contention also fails.

Emergency planning issues are not within the scope of the safety review at the license renewal stage, because they are already the focus of ongoing regulatory processes. Therefore, the Countys concerns, set forth in Contention C, are beyond the scope of this proceeding.

In addition, in County Contention C, the County continues to make bald or conclusory allegations with no specific legal or factual basis that is even remotely related to the license renewal application. Accordingly, this contention should not be admitted.

CONCLUSION Because it has failed to satisfy the criteria for late filing, and because it has failed to set forth an admissible contention, as discussed above, the County Petition should be denied.

Respectfully submitted,

/RA/

Brooke D. Poole Counsel for NRC Staff Dated at Rockville, Maryland this 28th day of February 2005

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

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DOMINION NUCLEAR CONNECTICUT, INC.

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Docket Nos. 50-336, 50-423

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(Millstone Power Station, Units 2 & 3)

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ASLBP No. 05-837-01-LR NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter in accordance with 10 C.F.R. § 2.314(b).

Name:

Brooke D. Poole Address:

U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O-15D21 Washington, D.C. 20555-0001 Telephone Number:

(301) 415-1556 Fax Number:

(301) 415-3725 E-mail Address:

bdp@nrc.gov Admissions:

Court of Appeals of Maryland District of Columbia Court of Appeals Name of Party:

NRC Staff Respectfully submitted,

/RA/

Brooke D. Poole Counsel for NRC Staff Dated at Rockville, Maryland this 28th day of February, 2005

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

)

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DOMINION NUCLEAR CONNECTICUT, INC.

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Docket Nos. 50-336, 50-423

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(Millstone Power Station, Units 2 & 3)

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ASLBP No. 05-837-01-LR CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFF ANSWER OPPOSING THE PETITION FOR LATE INTERVENTION OF THE COUNTY OF SUFFOLK OF THE STATE OF NEW YORK and the NOTICE OF APPEARANCE OF BROOKE D. POOLE in the captioned proceeding have been served on the following through electronic mail and with copies by deposit in the NRCs internal mail system, or through electronic mail with copies by deposit in the U.S. Postal Service as indicated by an asterisk, this 28th day of February, 2005:

Michael C. Farrar, Chief Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: mcf@nrc.gov Alan S. Rosenthal, Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: axr@nrc.gov Peter S. Lam, Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: psl@nrc.gov Office of the Secretary ATTN: Rulemaking and Adjudications Staff Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: HEARINGDOCKET@nrc.gov Office of Commission Appellate Adjudication Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Lillian M. Cuoco, Esq.*

Senior Nuclear Counsel Millstone Power Station Building 475/5 Rope Ferry Road (Route 156)

Waterford, CT 06385 E-mail: Lillian_Cuoco@dom.com David R. Lewis, Esq.*

Matias F. Travieso-Diaz, Esq.*

Timothy J.V. Walsh, Esq.*

Shaw Pittman, LLP 2300 N St., NW Washington, DC 20037-1128 E-mail: david.lewis@shawpittman.com matias.travieso-diaz@shawpittman.com timothy.walsh@shawpittman.com Christine Malafi*

Suffolk County Attorney H. Lee Dennison Building, 6th Floor P.O. Box 6100 100 Veterans Memorial Highway Hauppage, NY 11788 E-mail:

Christine.Malafi@suffolkcountyny.gov

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Brooke D. Poole Counsel for NRC Staff