ML071350496
| ML071350496 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 05/07/2007 |
| From: | Lodge T Don't Waste Michigan, Nuclear Information & Resource Service (NIRS) |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-155-LT, 72-043-LT, RAS 13605 | |
| Download: ML071350496 (10) | |
Text
'Mt S J (0 DOCKETED USNRC May 8, 2007 (8:07am)
OFFICE OF SECRETARY UNITED STATES OF AMERICA RULEMAKINGS AND NUCLEAR REGULATORY COM4ISSION ADJUDICATIONS STAFF In the Matter of May 7, 2007 CONSUMERS ENERGY COMPANY Docket Nos.
50-155-LT &
72-043-LT (Big Rock Point ISFSI)
PETITION FOR RECONSIDERATION Now come Victor McManemy, Nuclear Information and Resource Service ("NIRS") and Don't Waste Michigan
("DWM"),
Petitioners herein, by and through counsel, and move the Commission to reconsider its April 26, 2007 Memorandum and Order denying Petitioners the status of intervenors and denying them a hearing on the license transfer from Consumers Power Company to Entergy Nuclear Palisades, LLC and Entergy Nuclear Operations, Inc.
Terry J.6Lodý (Ohio Sup. *Ct. #00)29271 316 N. Michigan St.,
Ste.
520
- Toledo, OH 43604 (419.)
255-7552 Fax (419) 255-8582 Counsel for Petitioners MEMORANDUM NRC regulations 10 CFR § 2.345 - authorize the Petitioners to seek reconsideration if they file their request within ten (10) days after the date of the relevant decision and "demonstrate a compelling circumstance, such as the existence of a clear and material error in emp l~e- =56 cý
-ip-
a decisiotnw -which-could hnt 'have beenf reasonably anticipated, which render's the decisi0oniiinvalid :i, By a-calendaring error on-his*spa-ari-, Petitidners' undersigned legal, counsel omitted to prepare and,-submit; a response in-reply to Consumers' Arnswer and <to *oppose dismissaI of the original petition.
Petitioners'z counsel was, itvolved' in consuming trial activity and-overlooked the paper copy delivery-of Consumers' Answer, which apparently-was not also electronically~filed.(in which case it would have~been.more readily noticed ýby Petitioners' counsel).1
- Moreover, al-though Michaeli-Keegan of Don't ýWaste: Michigan: is listed as having-been served a paper !copy of Consumer*s' Answer,-he did not.receive it in the ýmail!.
Finally, Kevin Kamps. of NIRS was in Australia the entire month of March, 2007 and unavailable, to.-act-in reply-to the Answer.;,
Even absent a response,to the Answer, the Commission was, clearly and materially erroneous-inbrendering the decision,-it made on the !'Request, for: Hearing and Petition to Intervene."
The Commission's denial of standing to Victor McNameny, who indisputably lives within 40,to 42 miles of Big Rock Pointý, reflects a shallow analysis qf, the facts alleged by Petitioners as well as the public record information available to the NRC about the ISFSI at Big Rock.
Finding that "[tihe potential radio-logical ri~sks ass.ociated with an ISFSI license transfer are even lower, because an ISFSI is essentially a passive structure rather than an operating, facility, and there therefore is less chance of widespread radioactive release," the Commission determines that McNameny doesn't live closely enough to be within the contemplated zone of harm.
A member of an organiza.tion-.jay base his or her, standing upon a showing that his or her residence is within the geographical, area that might be affected by an accidentai-release of -fission.products.
Fla. Power &-,Light Co.
(Turkey ?oint Nucler Generating Plant, Units 3 & 4),
LBP-01-06, 53-NRC 138,.:146, ý(2001), -.aff'd on other grounds, CLI-01-17; 54-.NRC..3 (2001).. This approach.'"presumes a petitioner *has standing to' intervene withoutc.the need specifically to plead injury, causation, and redressability if the petitioner lives within, or otherwise has frequent contacts with, the-zone ofrpossible.-harm from the nuclear; reactor.Or other sour-c fd.radidactivity.'I" Id-,*
This, rule' o*f.:thumb has ýbeen-applied to, license: renewal proceedings.'
Turk**'DPoint:>, LBP-01-06, 53K.NRC at 148-49.
In reactor liclens6 -renewa-'1das6st-
"thd distance from-the 'significant source of radioactivity 'th týi!: presumed. tb affet*t the Pdtitioners logically.
must bdth-t'amie!'50-mile 'ditance-ý.fhat`f6rms'the current basis for thME. proximit,.ý p*@egiip~tion Tr reactor. construction permit ard !initial operating license proceedings".
Id.
See Virginia Elec. and Power Co.
(North"Ann:Nu,6i1-"'r Powelr Statifi'ýrtUhitt i-&':-2),
ALAB-522, 9 NRC 54, 56 (1979)
("close p'roximity [to &facility] has always been deemed to be'enough, standiftg' alon4, to establish'the requisite inherest" to con fer st n ih' "g)"
In Georýi' -ýPower Co.
(Vogtle Ect-ric Generating Plant,- Units 1 and 2),'LBP-93-5 37 NRC 96 '(1993), -aff'd, CLI-93-16, 38 NRC 25 (1993),
the Conmmission was posed"the question of a license transfer, as it faces in:'the'present p ro6edihg. ' The NRC approved standing for a petitioner who live'd35 'miles fr6m the plant for one week per month.
The petition6r in "Vogtle -alleged that heý could _'suffer harm from.-the :transfer of bpe*rating,,authority. to a cbmpany'that, according to him, lacked the "character,,compe~tence, and integrity to< safely operate the Vogtle.pl.ant, and lacks. the: candor, truthfulness, and.-
willingness to abide by the regulatory-.-requirements necessary to operat.e a nuclear, facility."
CLI-93-16,,r38:NRC at 33.-That. petition-er also alleged that management had submitted material false statements to the -Commission in order to,obst.ruct an'NRC investigation.
Id.
,In the present matter, Petitioner Victor: McNameny lives about 40 to 42.milesin a straight line' from:. Big Rock. at. his residence and he livesthere for 52 weeks per year-.,-His -recreational. pursuits on Lake Michigan. take him much-closer to the, Big Rock:..-ie in the
-arme-,
months of theyear; several, times per year he. sails to. within 15 miles of. Big Rock. Point, and every few. years sails.to a.p-oint within a mile from Big Rock Point.
See "Supplemental Declaration of Victor McNameny" hereto attached.
Several times per year he stops at a park within one mile of the ISFSI facility for various activities described in his Supplemental Declaration.
Over-all,.,.McNameny has demonstrated more frequent and closer proximity to Big Rock than did the petitioner in Georgia-Power to the Vogtle plant-......-
At Big Rock, ninety-five per cent (95%)
of all.th*.i*o*-las-ting radioactivity generated at the reactor remains onsite 'in the form of irradiated nuclear fuel.'
If there were an F-16 jet plane crash into mDOE "Integrated Data Base for 1997,-"-O:Office of. Civili-ian Radioactive Waste Management, http://www.osti.gov/bridge/product.biblio.jsp?osti-id=574220 the Big Rock ISFSI..casks, 2 or an-e-art)hquake,, 3...or a terrorist attack,4 using. a TOW shoulder-fired missil~e5. -*any.ý.of -whi~ch
- has.been !officially accorded the pbtential to physicll-y1breach' dry storage ca~sks - and caused the escape of radioac-tiV6 ceSiuin 4in&the'course:;of a fire, the wind could 'well: carry-tadiation. fors 412'- mile's'.
An'd the waters of Lake Michigan and, Little Traverse Bar:-sim-ilarly 'could distribute radiation that far.
There is' little technical di~f~ference, from the standponht 'of physics, chemistry and paotential-envi:ronment-all and qpublic <he-alth damage, -betw~een. a zirconium firein dr-ained'storage pool and a.
spent. fuel, fire ca-us,ed-:by, overhet ating..ISFSI zirconium cladding-'in a dry storage c:akT'!.
-lrfr:esp.ective of:'-hok-!16ng spent fuel"rods are left iný,.'cas'ks t6 c6dl' the-ma' p0t1nt7ial heatý up"to th'e po'int of i hiti6n;'-eh-cih'e ýi
- e
- o'ssibillty '6i £i'r-6bnP6m fi re's' remain's long after
- 2A scenario "previously recognized' as possible' by thý6 Commissi6n-,
see Private Fuel Storage LLC, 72-22-ISFSI.
3Acknowledged in a Staff memorandum seeking "negative consent" in the "Modified Rulemaking Plan: 10 CFR 'art 72 -*,"-Geological-and Seismological Characteristics for Siting and Design of Dry Cask Independent Spent Fuel Storage Installati-ons'", *Secy-01-0178:,. 9/26/01.
4Judicially poticed for the NRC ;in San Luis-Obispo.Mothers for, Peace v.
Nuclear Regulatory Commission (Ninth Circuit, No.
03-74628, June 2, 2006),
F.3d __
5 "Armor Piercing Missile Perforates High-Level Radioactive Waste Storage/Transport Cask,"
http://www.nirs.org/factsheets/nirsfctshtdrycaskvulnerable.pdf 6Credibly postulated in Robust Storage of Spent Nuclear Fuel: A Neglected Issue of Homeland Security, Institute for Resource and Security Studies (2003),
hýIp://www.nukebusters.org/uploads/med~ia/ThompsonReport.pdf decommissioning; 7 long after the adjoining nuclear power plant has been dismantled.
The.possibility of 'a fuel fire is explicitly admitted in Consumers' review of the scenario of "self-sustaining oxidation of spent fue'l zirconium clad4ding"' found in its decommissioning plans. 8 If there were an attack on the cask 'storage facility at Big Rock where no radiation escaped, the sheer economic impacts on.the northwestern Michigan. tourism economy due to stigma effect would be tremendouls and would not necessarily distinguish between a spent fuel stor*age site and an operating nuclear power plant.
The. effects would only be worsened if. some, or a lot,.of radiation, escaped from a breach of the casks.
Petitioners remind the Commission that this:.license transfer proceeding is the first time that NIPS,
.DWM and MoNameny. have had occasion to demand consideration of the terrorism. thxeat, to the Big Rock casks since the 9/I1 commission.reported in...20:04.that nuclear facilities were targeted by Al Qaeda on September'Ir,' 2001.
It-is thus quite appropriate for, the Petitioners to be raising these concerns now, at this initial opportunity.
When it denied the present petiLion, the Commfssion failed to analyze the adversities of' earthquake, terrorism and plane wrecks together with certain Big Rock-specific troubles:
(1) the security 7NUREG-1738, Appendix 1A, pg AlA-5, available through NRC's ADAMS engine. Comments by Robert Alvarez, www.fpif.org/presentations/wrndOl/alvarez body.htinl 8Discussed in the Commission's October 7, 1998 grant of an exemption to Consumers from having to prepare an offsite emergency plan once the Big Rock reactor was closed and dismantled, see http://www.epa.gov/fedrgstr/EPA-GENERAL/1998/October/Day-07/`g26852.htm vulnerability of the casks (.i.e,, much of the former Big Rock. reactor installation site has been released for public use, likely as a public park, with greatly alteered* slecurity-requirements from those which formerly pertained when thie;-reactor existed nearby);
(2)
Entergy's poor security management track record9 ;and (3) the ongoing bankruptcy of~the parent Entergy electric utility comipany as a result of Hurricane Katrina's devastationl*f Entergy's-Gulf Coast rate base°0, which has left New Orieans subject to frequent blac-kouts and unreliable service... Entergy's corporate focusý is-di-stracted, and
.c~areful: mo-nitoring of the casks 'at Big Rock is-a costiy-. afterthlought in its otherwise lucrative purchase&deal.
It is within reasonable%
contemplation that this struggling corporation and/or its subsidi-ariesinight cut fiical and;staff ng LcDrners to deal with its unprec-den-ted finafttial problems'-;'
This. array of, chalhlenges should be respectedand investigated via a-,public adjudication :of the license transfer from ConSumier-s to Entergy 9A year after the 9/11 attacks, security guards at Indian Point -
an Entergy:bfacility... expressed majOdiconceriis abbut-being undersotfffed,-'.
insufficiently trained, under-equipped, misunderstanding of the rules of engagement, and underpaid to provide-ssecurity.. The situation, according. to this report, is even more dismal at decomissioned facilities. See report, "Nuclear Power PlantofSecurit.y: Voices-from Inside-the Fences,'" Project~on Government Oversight, http://pogo.org/p/environment/eo-702 0*Oi-nukepower.html#ExecSum The leaked interrfal Entergy Northeast report containing these conclusions is found at http://pogo.org/m/ep/ep-EntergyReport-020125.pdf 10Such that Entergy's Mississippi subsidiary received some $81 million in federal grant aid, http://www.boston.com/business/articles/2O06/l0/30/entergy-mississippi_getsfe deralgrant/
and its New Orleans parent corporation received $200 million in subsidized ratepayer assistance, http://www.lra.louisiana.gov/prl03006entergy.html.
Less Power, May Pay More,-" New York Times, http://www.'nytlimes.co6m/2006/07/22/us/22blackout.html?ex=13112208004en=45835691 d7996622&ei=5088&partner=rssnyt&emc=rss The facts of Enter*I's corporate financial status and the implications for the firm's consequent ability to secure and manage the Big Rock storage facility fall within the 10 CFR § 2.345 "compelling" threshold.
The Commission's trivialization of Entergy's financial problems and denial of an inquiry into the company's cur-rent management culture comprises a."clear-and material error" which incorrectly prompted the denial of standing and a hearing for the Petitioners.
The enumerated Entergy negatives should set off cautionary alerts and trigger closer NRC scrutiny, in the form of a public adjudicatory license transfer proceeding.
WHEREFORE, the Petitioners pýray th& 'Commission, rbeconsider its Aprilý 26, 2007 decision 'andt reverse the -s~ame-j and-'..fdkrther7 that it grant the Petitioners standing'to prodeed.
and set these mtt'ers forý hearing.
TeTry J.([odq(
Counsel for Petitoners UNITED STATES OF AMERICA.
NUCLEAR REGULATORY COMMISSION In the Matter of CONSUMERS ENERGY COMPANY (Big Rock Point ISFSI)
May 7, 2007 Docket Nos.
50-155-LT &
72-043-.LT SUPPLEMENTAL DECLARATION OF VICTOR MCNAMENY Now come Victor McManemy ("Declarant"),
who says as follows under the penalties of perjury:
- 1) Declarant makes this additional declaration to supplement the declaration-he gave,ýin, February 2P,07.in this proceedingt.
- 2)
Every few.',.years Declarant.sail shis boat very close to the Big Rock Point (Michigan) ISFSI site, to within less than a mile
- away, o-o.,r he Little Traverse Bay,,of Lake.M*ichigan.
Every year, he, sails several times within fifteen (15) miles of Big Rock Point on Little Traverse Bay.
- 3)
Several times per year Declarant travels by auto past the Big Rock Point site and stops at Elzinga Park, less than one (1) mile east of the current location of the Big Rock Point ISFSI, to collect drinking.wat~rf-hi6ofmanartesian-wel in-the park; to visit a monument to a B-52 crew IUht.crashed in.the-.-1960s just ten seconds' flight time short of the Big Rock reactor; and as well to hunt for Petoskey stones on the beach of Lake Michigan.
- 4) Further Declarant saith naught.
Is!
Victor McNameny Victor McNameny UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of CONSUMERS ENERGY COMPANY (Big Rock Point Plant)
))
)
)
)
Docket Nos.
50-155-LT 72-043-LT CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing PETITION FOR RECONSI-DERATION have been served upon the following persons by electronic mail this 7 th day of May,
- 2007, followed by deposit of paper copies in the U.S. mail, first class, or through NRC internal mail.
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Office of the Secretary ATTN: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: HEARINGbOCKET@nrc.gov)
Sam Behrends, Esq.
- LeBoeuf, Lamb, Greene & MacRae 1875 Connecticut Ave.,
NW, Suite 1200 Washington, DC 20009 E-mail: sbehrend@llqm.com Lawrence J.
Chandler, Esq.
Office of the General Counsel Mail Stop -
0-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ogclt@nrc.gov Douglas E.
- Levanway, Esq.
Wise, Carter, Child, and Caraway P.O.
Box 651
- Jackson, MS 39205 E-mail: del@wisecarter.com Terry k/. L goe" Counsel for Petitioners