ML11223A375
| ML11223A375 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/11/2011 |
| From: | Bogen D, Ehrenberg K, Gunter R Seacoast Anti-Pollution League, Sierra Club, New Hampshire Chapter, Beyond Nuclear |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| Shared Package | |
| ML11223A371 | List: |
| References | |
| RAS 20731, 50-443-LR, ASLBP 10-906-02-LR-BD01, PRM-51-20 | |
| Download: ML11223A375 (10) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD AND OFFICE OF THE SECRETARY In the Matter of )
)
NEXTERA ENERGY SEABROOK (LLC) )
[Also Known As FLORIDA POWER & LIGHT] )
)
SEABROOK NUCLEAR POWER PLANT ) DOCKET NO. 50-443-LR
)
Regarding the Renewal of Facility Operating License ) ASLBP No. 10-906-02-LR No-NFP-86 for a 20-Year Period )
__________________________________________ )
MOTION TO ADMIT NEW CONTENTION REGARDING THE SAFETY AND ENVIRONMENTAL IMPLICATIONS OF THE NUCLEAR REGULATORY COMMISSION TASK FORCE REPORT ON THE FUKUSHIMA DAI-ICHI ACCIDENT I. INTRODUCTION Pursuant to 10 C.F.R. § 2.309, Beyond Nuclear, Seacoast Anti-Pollution League and Sierra Club of New Hampshire (collectively Intervenors) hereby move to admit a new contention challenging the adequacy of the Seabrook Environmental Report (the ER) on the basis that it fails to address the extraordinary environmental and safety implications of the findings and recommendations raised by the Nuclear Regulatory Commissions Fukushima Task Force (the Task Force) in its report, Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights From the Fukushima Dai-ichi Accident (July 12, 2011)
(Task Force Report). Intervenors respectfully submit that admitting the new contention is necessary to ensure that the Nuclear Regulatory Commission (NRC or 1
the Commission) fulfills its non-discretionary duty under the National Environmental Policy Act (NEPA) to consider the new and significant information set forth in the Task Force Report before it relicenses the Seabrook nuclear power station.
This motion is supported by a Certificate Required by 10 C.F.R. § 2.323(b).
II. BACKGROUND On October 20, 2010, Intervenors filed a petition to intervene in the relicensing proceeding for Seabrook nuclear power plant. On February 15, 2011, this Board found that Intervenors had established standing and admitted Intervenors contentions for hearing. The licensing board decision and Order are now before the Commission under appeal filed by Next Era on February 25, 2011. A hearing date on that contention has not yet been scheduled. The petitioners are filing this motion and contention to meet the timeliness requirements for admitting a new contention based on new information.
III. DISCUSSION To be admitted for hearing, a new contention must satisfy the six general requirements set forth in 10 C.F.R. § 2.309(f)(1), and the timeliness requirements set forth in either 10 C.F.R. § 2.309(f)(2) (governing timely contentions) or 10 C.F.R. § 2.309(c) (governing non-timely contentions). As provided in the accompanying contention, each of the requirements set forth in 10 C.F.R. § 2.309(f)(1) is satisfied.
Furthermore, Intervenors maintain that this Motion and accompanying contention are timely, and the requirements of 10 C.F.R. § 2.309(f)(2) are also satisfied. In the event this Board determines that this Motion and the accompanying contention are not timely, however, Intervenors also maintain that the requirements of 10 C.F.R. § 2.309(c) are satisfied.
2
A. This Motion and the Accompanying Contention Satsify the Requirements for Admission of a Timely Contention Set Forth in 10 C.F.R. § 2.309(f)(2).
The NRC has adopted a three-part standard for assessing timeliness. See 10 C.F.R. § 2.309(f)(2). The Motion and accompanying contention are timely.
- 1. The Information Upon Which the Motion and Accompanying Contention are Based was not Previously Available.
The availability of material information is a significant factor in a Boards determination of whether a motion based on such information is timely filed. Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), LBP-85-19, 21 NRC 1707, 1723 (1985) (internal citations omitted). This Motion and the accompanying contention are based upon information contained within the Task Force Report, which was not released until July 12, 2011. Before issuance of the Task Force Report, the information material to the contention was simply unavailable.
- 2. The Information Upon Which the Motion and Accompanying Contention are Based is Materially Different than Information Previously Available.
Only five months ago, a nuclear accident occurred at the Fukushima Dai-ichi Nuclear Power Plant. In the wake of the accident, the Task Force was established and instructed by the NRC to provide:
A systematic and methodical review of [NRC] processes and regulations to determine whether the agency should make additional improvements to its regulatory system and to make recommendations to the Commission for its policy direction, in light of the accident at the Fukushima Dai-ichi Nuclear Power Plant.
3
Task Force Report at vii. In response to that directive, the Task Force made twelve overarching recommendations to strengthen the regulatory framework for protection against natural disasters, mitigation and emergency preparedness, and to improve the effectiveness of NRCs programs. Id. at viii. In these recommendations the Task Force, for the first time since the Three Mile Island accident occurred in 1979, fundamentally questioned the adequacy of the current level of safety provided by the NRCs program for nuclear reactor regulation.
In the ER, FPL assumes that compliance with existing NRC safety regulations is sufficient to ensure that the environmental impacts of accidents are acceptable. The information in the Task Force Report refutes this assumption and is materially different from the information upon which the ER is based. See attached contention and Declaration of Dr. Arjun Makhijani.
- 3. The Motion and Accompanying Contention are Timely Based on the Availability of the New Information.
Intervenors have submitted this Motion and accompanying contention in a timely fashion. The NRC customarily recognizes as timely contentions that are submitted within thirty (30) days of the occurrence of the triggering event. Shaw Areva MOX Services, Inc. (Mixed Oxide Fuel Fabrication Facility), LBP-08-10, 67 NRC 460, 493 (2008). The Task Force Report, upon which the contention is based, was published on July 12, 2001. Because they were filed within thirty (30) days of publication of the Task Force Report, this Motion and accompanying contention are timely.
4
B. The New Contention Satisfies the Standards For Non-Timely Contentions Set Forth in 10 C.F.R. § 2.309(c).
Pursuant to § 2.309(c), determination on any nontimely filing of a contention must be based on a balancing of eight factors, the most important of which is good cause, if any, for the failure to file on time. Crow Butte Res., Inc. (North Trend Expansion Project), LBP-08-6, 67 NRC 241 (2008). As set forth below, each of the factors favors admission of the accompanying contention.
- 1. Good Cause.
Good cause for the late filing is the first, and most important element of 10 C.F.R.
§ 2.309(c)(1). Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-02, 51 NRC 77, 79 (2000). Newly arising information has long been recognized as providing the requisite good cause. See Consumers Power Co.
(Midland Plant, Units 1 & 2), LBP-82-63, 16 NRC 571, 577 (1982), citing Indiana &
Michigan Elec. Co. (Donald C. Cook Nuclear Plant, Units 1 & 2), CLI-72-75, 5 AEC 13, 14 (1972). Thus, the NRC has previously found good cause where (1) a contention is based on new information and, therefore, could not have been presented earlier, and (2) the intervenor acted promptly after learning of the new information. Texas Utils. Elec.
Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 69-73 (1992).
As noted above, the information on which this Motion and accompanying contention are based is taken from the Task Force Report, which was issued on July 12, 2011 and analyzes NRC processes and regulations in light of the Fukushima accident, an event that occurred a mere five months ago. This Motion and 5
accompanying contention are being submitted less than thirty (30) days after issuance of the Task Force Report.
Accordingly, the Intervenors have good cause to submit this Motion and the accompanying contention now.
- 2. Nature of the Intervenors Right to be A Party to the Proceeding.
Intervenors are currently parties in the captioned Seabrook relicensing proceeding.
- 3. Nature of Intervenors Interest in the Proceeding.
The Intervenors seek to protect their members health, safety, and lives and the environment by ensuring that the NRC fulfills its non-discretionary duty under NEPA to consider the new and significant information set forth in the Task Force Report before it issues a Seabrook nuclear power plant. Moreover, as each of the members represented by Intervenors in this proceeding have an interest in this proceeding because of the obvious potential for offsite consequences to their own or their members health and safety. Diablo Canyon, 56 NRC at 426-27, citing Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-6, 53 NRC 138, 146, affd, CLI-01-17, 54 NRC 3 (2001).
6
- 4. Possible Effect of an Order on Intervenors Interest in the Proceeding.
As noted above, Intervenors interest in a safe, clean, and healthful environment would be served by the issuance of an order requiring the NRC to fulfill its non-discretionary duty under NEPA to consider new and significant information before making a licensing decision. See Silva v. Romney, 473 F.2d 287, 292 1st Cir. 1973).
Compliance with NEPA ensures that environmental issues are given full consideration in the ongoing programs and actions of the Federal Government. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371 n.14 (1989).
- 5. Availability of Other Means to Protect the Intervenors Interests.
With regard to this factor, the question is not whether other parties may protect Intervenors interests, but rather whether there are other means by which Intervenors may protect their own interests. Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 & 2), ALAB-292, 2 NRC 631 (1975). Quite simply, no other means exist. Only through this hearing do Intervenors have a right that is judicially enforceable to seek compliance by NRC with NEPA before the license renewal for Seabrook Unit 1 is issued, permitting these new reactors to operate and impose severe accident risks on Intervenors and the individuals they represent.
- 6. Extent the Intervenors Interests are Represented by Other Parties.
7
No other party can represent Intevenors interests in protecting the health, safety, and environment of themselves and their members. While the concerns raised by Intervenors and any other parties may be consolidated at some point in the future, such consolidation should not impact a determination as to whether Intervenors interests are currently represented by other parties. As of the date of this filing, no party can represent Intervenors interests.
- 7. Extent That Participation Will Broaden the Issues.
While Intervenors participation may broaden or delay the proceeding, this factor may not be relied upon to deny this Motion or exclude the contention because the NRC has a non-discretionary duty under NEPA to consider new and significant information that arises before it makes its licensing decision. Marsh, 490 U.S. at 373-4.
- 8. Extent to which Intervenors Will Assist in the Development of a Sound Record.
Intervenors will assist in the development of a sound record, as their contention is supported by the expert opinion of a highly qualified expert, Dr. Arjun Makhijani. See attached Makhijani Declaration. See also Pacific Gas & Elec. Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-08-01, 67 NRC 1, 6 (2008) (finding that, when assisted by experienced counsel and experts, participation of a petitioner may be reasonably expected to contribute to the development of a sound record). Furthermore, as a matter of law, NEPA requires consideration of the new and significant information set forth in the Task Force Report. See 10 C.F.R. § 51.92(a)(2).
A sound record cannot be developed without such consideration.
8
C. The New Contention Satisfies the Standards For Admission of Contentions Set Forth in 10 C.F.R. § 2.309(f)(1).
As discussed in the accompanying contention, the standards for admission of a contention set forth in 10 C.F.R. § 2.309(f)(1) are satisfied.
IV. CONCLUSION For the foregoing reasons, this Motion should be granted and the accompanying contention admitted.
Respectfully submitted this 11th day of August 2011.
/s/----------------------------
Paul Gunter Beyond Nuclear 6930 Carroll Avenue Suite 400 Takoma Park, MD 20912 Email: paul@beyondnuclear.org Tel. 301.270.2209 x3
/s/---------------------------
Doug Bogen Executive Director Seacoast Anti-Pollution League PO Box 1136 Portsmouth, NH 03802 E-mail: bogen@metrocast.net Tel: (603)431-5089
/s/--------------------------
Kurt Ehrenberg Sierra Club of New Hampshire 40 N. Main Street Concord, NH 03870 E-mail: kurtehrenberg@gmail.com Tel: 603.498.2275 August 11, 2011 9
CERTIFICATE REQUIRED BY 10 C.F.R. § 2.323(b)
I certify that on August 9, 2011, I contacted counsel for the applicant and the NRC Staff in an attempt to obtain their consent to this motion. The NextEra counsel replied that the applicant will oppose the motion. The counsel for the NRC staff stated that they did not have sufficient information to respond to the motion but would do so appropriately once the contention is filed. The State of Massachusetts replied that they do not oppose the motion.
/s/----------------------------
Paul Gunter Beyond Nuclear 6930 Carroll Avenue Suite 400 Takoma Park, MD 20912 paul@beyondnuclear.org Tel. 301 270 2209 x3 August 11, 2011 10