ML11223A443
| ML11223A443 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/11/2011 |
| From: | Shadis R Friends of the Coast, New England Coalition |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| Shared Package | |
| ML11223A442 | List: |
| References | |
| RAS 20733, 50-443-LR, ASLBP 10-906-02-LR-BD01, PRM-51-22 | |
| Download: ML11223A443 (9) | |
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August 11, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket No. 50-443-LR NextEra Energy Seabrook, LLC ASLBP No. 10-906-02-LR (Seabrook Nuclear Station, Unit 1)
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, Friends of the Coast and New England Coalition (collectively Intervenors or Friends/NEC ) hereby move to admit a new contention challenging the adequacy of the Seabrook Nuclear Station ,Unit 1, (Seabrook) License Renewal Application, Environmental Report, Rev. 2 (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 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 issues a renewed license for Seabrook. This motion is supported by a Certificate Required by 10 C.F.R. § 2.323(b).
II. BACKGROUND On October 21, 2010, Intervenors filed a petition to intervene in the License Renewal application (LRA) proceeding for Seabrook. On February 15, 2011, this Board found that Intervenors had established standing and admitted two of the intervenors contentions regarding aging management of safety related components and a narrowed version of one of Intervenors contentions regarding Severe Accident Mitigation Alternatives [analysis] (SAMA).
On February 25, 2011, the licensee appealed the Boards decision asking the Commission to reject all contentions and deny standing for all intervenors. The Commission has yet to render a decision.
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.
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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.
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 3
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.
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.
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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 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 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 have a right to participate in this proceeding because they have standing and have submitted an admissible contention. See 10 C.F.R. § 2.309, 42 U.S.C. § 2339(a)(1).
- 3. Nature of Intervenors Interest in the Proceeding.
Friends/NEC seeks to protect the property, health, safety, and lives members. Several affidavits of members living with the proximity of seabrook were submitted together with 5
Friends/NECs Petition for Leave to Intervene , October 21, 2010. Each Intervenor seeks to protect the health and safety of the general public 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 renewed license for Seabrook.. Moreover, as each of the members represented by Friends/NEC in this proceeding within fifty (50) miles of Seabrook , Intervenors 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).
- 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 6
before the renewed licence for Seabrook 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.
No other party can represent Intevenors interests in protecting the health, safety, and environment of themselves and their members. Intervenors are aware and acknowledge that Beyond Nuclear is filing a similar Motion in this proceeding and similar new contention. While the concerns raised by Friends/NEC and Beyond Nuclear 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. 1 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. Moreover, as a hearing date for Intervenors admitted contention has not yet been scheduled, admission of the new contention will not delay the hearing.
- 8. Extent to which Intervenors Will Assist in the Development of a Sound Record.
1 Moreover, Beyond Nuclear has not yet made any indication that it is willing and able to represent Intervenors interests. See Duke Power Co. (Amendment to Materials License SNM-1773 - Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146, 150 (1979) (finding that the fact that a successful petitioner has advanced a contention concededly akin to that of a late petitioner does not necessarily mean that the successful petitioner is both willing and able to represent the late petitioners interest.).
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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.
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.
III. CONCLUSION For the foregoing reasons, this Motion should be granted and the accompanying contention admitted.
IV. 10 CFR §2.323(b) CERTIFICATION Pro Se Representative for Friends/NEC hereby certifies that in conformance with 10 C.F.R. §2.323 (b) , Friends/NEC made a sincere attempt to obtain the consent of NextEra and NRC Staff to the filing of the attached Motion for Leave to File a New Contention and by extension the foregoing New Contention , but parties felt that they did not have sufficient information to judge the worth of the Contention . They make no comment on the administrative act of filing and reserve the right to file comment or opposition regarding the timing and/or content of the proposed contention.
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Respectfully submitted this 11th day of August 2011.
Electronically signed Raymond Shadis Raymond Shadis Pro se representative Friends of the Coast New England Coalition Post Office Box 98 Edgecomb, Maine 04556 207-882-7801 Shadis@prexar.com 9