ML052500193
| ML052500193 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 08/31/2005 |
| From: | Bauser M Nuclear Energy Institute |
| To: | NRC/OCM |
| Giitter R | |
| References | |
| 50-336-LR, 50-423-LR, ASLBP 05-837-01-LR, CLI-05-18, RAS 10416 | |
| Download: ML052500193 (9) | |
Text
I ;. ?'s tlegal,>f DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION August 31, 2005 (10:36am)
OFFICE OF SECRETARY RULEMAKINGS AND BEFORE THE COMMISSION ADJUDICATIONS STAFF
)
In the Matter of )
) Docket Nos. 50-336-LR DOMINION NUCLEAR ) 50-423-LR CONNECTICUT, INC. )
(Millstone Nuclear Power Station, )
Units 2 and 3) )
REPLY OF AMICUS CURIAE NUCLEAR ENERGY INSTITUTE OPPOSING "SUFFOLK COUNTY'S REPLY BRIEF IN FURTHER SUPPORT OF PETITION FOR LATE INTERVENTION, IN RESPONSE TO COMMISSION MEMORANDUM AND ORDER CLI-05-18" On August 4, 2005, the Nuclear Regulatory Commission ("NRC" or "Commission") accepted certification from the Atomic Safety and Licensing Board
("Licensing Board") in the above-captioned proceeding of the question of "whether to grant Suffolk County's request for an exemption from (or waiver of) 10 C.F.R. 50.47(a)(1) (which provides that emergency planning issues are not germane to license renewal determinations)."' The certification stemmed from a late petition to intervene filed by Suffolk County, New York ("the County"), in this previously-terminated license renewal proceeding for applicant Dominion Nuclear Connecticut, Inc.'s Millstone Nuclear Power Station, Units 2 and 3.
1 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-18, 62 NRC (Aug. 4, 2005 slip op. at 1) ("Commission Order").
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The Nuclear Energy Institute ("NEI") has previously sought leave to file a concurrently-submitted brief amicus curiae with the Commission on the certified question. 2 Legal counsel for applicant Dominion and for the NRC Staff have informed NEI counsel that the applicant and the NRC Staff do not oppose NEI's motion for leave to file an amicus brief, and, to date, the Commission has not denied NEI's motion. On August 25, 2005, Suffolk County filed a "Reply Brief in Further Support of Petition for Late Intervention, in Response to Commission Memorandum and Order CLI-05-18" ("Reply"). In that Reply, the County stated, inter alia, that it did not consent to the filing of NEI's brief amicus curiae in this proceeding, and that NEI's brief "provides no new useful information or arguments which are germane to this proceeding." (Reply, at 5, n. 8). NEI hereby responds to the County's Reply on these specific points, treating it as a response in opposition to NEI's August 18 Motion. 3 NEI disagrees with the County's characterization of NEI's amicus brief.
Contrary to the County's assertions, each section of NEI's amicus brief contains 2 See the 'Motion of the Nuclear Energy Institute for Leave to File Brief as Amicus Curiaein Opposition to Suffolk County's Request for an Exemption or Waiver of 10 C.F.R. § 50.47(a)(1)"
("Motion"), the "Brief of Amicus Curiae Nuclear Energy Institute Opposing Suffolk County's Request for an Exemption from or Waiver of 10 C.F.R. § 50.47(a)(1)" ("NEI Brief'), and the "Notice of Appearance" of Michael A. Bauser, all dated and filed August 18, 2005. Although the Commission will also address three additional questions raised by the Licensing Board's "Memorandum and Order (Concerning Belated Intervention Petition)," LBP-05-16, 62 NRC _ (July 20, 2005 slip op.),
NEI's amicus brief addresses only the certified question.
3 On p. 5, n. 8 of the Reply, the County also states that, contrary to NEI's statement in its Motion that the County had not yet indicated whether or not it opposed grant thereof, 'NEI's counsel was well aware, based on personal communications with Christine Malafi, the County refused to consent to the filing.'" NEI counsel had but one telephone conversation with Ms. Malafi. Based on that discussion, he understood that - wvhile the County did not support the NEI Brief - either Ms. Malafi or another County representative would respond to him concerning whether NEI could indicate in its Motion that the County did not oppose grant thereof. No one from the County ever communicated further with NEI following this initial (and only) telephone discussion.
2
useful information and argument that is directly relevant to the certified question -
and, therefore, directly relevant to this license renewal proceeding.
Section II.A. of the NEI Brief (at pp. 2-8) focuses on the regulatory history of the NRC's license renewal rule, with emphasis on its explicit exclusion of emergency planning ("EP") considerations. We also highlight the Commission's carefully reasoned rationale for precluding consideration of emergency planning issues in the context of license renewal. In this regard, the County's selective reading of this section of NEI's amicus brief as emphasizing the role of "predictability and stability in the license renewal process" as a matter of pure "convenience" misconstrues the discussion. Rather, NEI shows that, particularly when considered against this legal and regulatory backdrop, Suffolk County has clearly failed to provide any viable basis for its requested exemption from 10 C.F.R. § 50.47(a)(1) requirements.
Section II.B. of the NEI Brief (at pp. 8-9) proposes that the County's request to inject emergency planning issues into license renewal proceedings is more appropriately addressed by an NRC rulemaking (assuming arguendothat such a request is appropriate for consideration at all).Section II.C. of the NEI Brief (at pp.
9-11) demonstrates that important national policy considerations argue against disrupting the NRC's license renewal process, as Suffolk County's exemption/waiver request would do. While the County dismisses such concerns as "irrelevant," the discussion in NEI's brief shows that granting the County's late intervention petition could well have legal, regulatory and practical consequences that transcend this particular license renewal proceeding. In sum, all of the arguments in NEI's amicus 3
brief are clearly relevant to this proceeding, and may appropriately be raised by an amricus.
Moreover, the County's citation to Jones v. Roper, 311 F.3d 923 (8th Cir. 2002)
(Reply, at 5) does nothing to advance the County's argument that NEI should be denied the opportunity to file its amicus brief in this proceeding. In that case, the U.S. Court of Appeals for the 8th Circuit affirmed the District Court's denial of the petitioner's writ of habeas corpus and related mot'ion to vacate the denial of his petition. The appellate court also denied leave for the government of Austria to file a brief amicus curiae (apparently based on the fact that the petitioner was married to an Austrian citizen). Notably, the court stated that: "In the ordinary case, we should grant without hesitation such a motion for leave to file a brief amicus curiae." 311 F.3d at 927. However, the court of appeals denied the motion because it was filed only two days before the petitioner's scheduled execution, despite being based on arguments advanced by Austria in a clemency request to the governor of Missouri more than a month earlier, and also because the arguments that the amicus wished to advance were no different than those advanced by the petitioner.
Id.
In sum, Jones v. Roper is totally inapposite to the precept for which the County cites the case in its Reply. NEI's proposed amicus brief is timely, and the County has not argued otherwise. NEI's proposed brief contains "useful information ... germane to this proceeding," as discussed above, and does not merely mirror the arguments made in the parties' briefs. Accordingly, this 4
.. I precedent provides no valid basis for excluding NEI's proffered amicus brief in this license renewal proceeding, and should therefore be discounted.
Moreover, NEI submits that its amicus brief will complement the briefs filed by the parties, particularly because NEI offers a unique perspective concerning the certified question. Also, NEI, as the representative of all commercial nuclear licensees, in addition to applicant Dominion, has a clear and direct interest in that question given its longstanding involvement in NRC license renewal and emergency planning matters. NEI's participation as amicus curiaewill not prejudice or unduly burden any other party, and the County has not shown otherwise.
For the foregoing reasons, NEI submits that Suffolk County's opposition to NEI's motion to file an amicus brief in this proceeding, as set forth in the County's Reply, should be discounted. NEI respectfully asks the Commission to accept its 5
brief amicus curiae, and requests that the Commission consider the important emergency planning and license renewal issues affecting the U.S. reactor industry as discussed therein.
Respectfully submitted, Ellen C. Ginsberg Michael A. Bauser Anne W. Cottingham Nuclear Energy Institute 1776 I Street, NW, Suite 400 Washington, DC 20006 (202) 739-8000 (tel.)
(202) 785-4019 (fax)
Dated: August 31, 2005 6
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
) Docket Nos. 50-336-LR DOMINION NUCLEAR ) 50-423-LR CONNECTICUT, INC.
(Millstone Nuclear Power Station, )
Units 2 and 3) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of the "Reply of Amicus Curiae Nuclear Energy Institute Opposing 'Suffolk County's Reply Brief in Further Support of Petition for Late Intervention, in Response to Commission Memorandum and Order CLI 18,"' dated August 31, 2005, were served on the persons listed below by deposit in the U.S. Mail, first class, postage prepaid, this 31st day of August, 2005. Additional service by electronic mail (as indicated by *), was made this same day.
Chairman Nils J. Diaz Secretary*
U.S. Nuclear Regulatory Commission Rulemakings and Adjudications Mail Stop 0-16 C1 Staff I Washington, DC 20555-0001 Mail Stop 0-16 C1 U.S. Nuclear Regulatory Commission Commissioner Jeffrey S. Merrifield Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: secv~nrc.gov, Mail Stop 0-16 C1 hearingdocket~nrc.gov Washington, DC 20555-0001 Commissioner Gregory B. Jaczko U.S. Nuclear Regulatory Commission Mail Stop 0-16 C1 Washington, DC 20555-0001
0;f Administrative Judge* Lillian M. Cuoco, Esq.*
Michael C. Farrar, Chairman Senior Nuclear Counsel Atomic Safety and Licensing Board Dominion Resources Services, Inc.
Mail Stop: T-3F23 Rope Ferry Road U.S. Nuclear Regulatory Commission Waterford, CT 06385 Washington, DC 20555-0001 E-mail: Lilliancuoco~don.com E-mail: MCF@nrc.gov Commissioner Peter B. Lyons Administrative Judge* U.S. Nuclear Regulatory Commission Dr. Peter S. Lam Mail Stop 0-16 C1 Atomic Safety and Licensing Board Washington, DC 20555-0001 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Office of Commission Appellate Washington, DC 20555-0001 Adjudication E-mail: PSL@nrc.wov Mail Stop 0-16 C1 U.S. Nuclear Regulatory Commission Brooke D. Poole, Esq.* Washington, DC 20555-0001 Office of the General Counsel Mail Stop: 0-15 D21 Administrative Judge*
U.S. Nuclear Regulatory Commission Alan S. Rosenthal Washington, DC 20555-0001 Atomic Safety and Licensing Board E-mail: BDP(nrc.zov Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission David R. Lewis, Esq.* Washington, DC 20555-0001 Matias F. Travieso-Diaz, Esq.* E-mail: rsnthl~comcast.net Timothy J. V. Walsh, Esq.*
Pillsbury Winthrop Shaw Pittman, LLP Christine Malafi, Esq.*
2300 N Street, NW Jennifer Kohn, Esq.*
Washington, DC 20037-1128 Suffolk County Attorney E-mail: david.lewis~pillsburvlaw.com H. Lee Denison Building Matias.travieso-diazgpillsburvlaw.com 100 Veterans Memorial Highway Timothv.walsh~pillsburvlaw.com Hauppage, NY 11787 E-mail:
Christine.Malafi@suffolkcountvnv.gov, Jennifer.Kohn~suffolkcountvnv. gov August 31, 2005 Mi aev A. Bauser 2
NU c l E A R E 11E R GY I HS T I T UT E Michael A.Bauser Deputy General Counsel 202.739.8144 202.533.0231 mab(nei.org August 31, 2005 Secretary Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop 0-1 C1 Washington, DC 20555-0001 Re: In the Matter of DOMINION NUCLEAR CONNECTICUT, INC.
(Millstone Nuclear Power Station, Units 2 and 3)
Docket Nos. 50-336-LR and 50-423-LR
Dear Ms. Vietti-Cook:
Enclosed please find for filing the original and two copies of the "Reply of Amicus CutriaeNuclear Energy Institute Opposing 'Suffolk County's Reply Brief in Further Support of Petition for Late Intervention, in Response to Commission Memorandum and Order CLI-05-18,"' dated August 31, 2005. Distribution has been made as indicated in the enclosed Certificate of Service.
Sincerely, Enclosures I - -- I -, FEE I i V.'! '.0L1TE.1) 15FIIiI
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