ML12118A468
| ML12118A468 | |
| Person / Time | |
|---|---|
| Site: | Point Beach, Seabrook, Duane Arnold, EA-12050, EA-12051 |
| Issue date: | 04/27/2012 |
| From: | Hamrick S Florida Power & Light Co, NextEra Energy Duane Arnold, Point Beach, NextEra Energy Seabrook |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 22333, ASLBP 12-918-01-EA-BD01, EA-12-050, EA-12-051 | |
| Download: ML12118A468 (9) | |
Text
April 27, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
In the Matters of )
) Docket Nos. EA-12-050
ALL POWER REACTOR LICENSEES ) EA-12-051 AND HOLDERS OF CONSTRUCTION )
PERMITS IN ACTIVE OR DEFERRED ) ASLBP No. 12-918-01-EA-BD01 STATUS )
)
and )
)
ALL OPERATING BOILING WATER )
REACTOR LICENSEES WITH MARK I )
AND MARK II CONTAINMENTS )
Answer of Florida Power & Light Co mpany, NextEra Energy Seabrook, LLC, NextEra Energy Point Beach, LLC, and NextEra Energy Duane Arnold, LLC Opposing the Requests for Hearing of Pilgrim Watch and Beyond Nuclear on EA-12-050 With Regard to Reliable Hardened Containment Vents and EA-12-051 With Regard to Reliable Spe nt Fuel Pool Instrumentation On March 12, 2012, the Nuclear Regulatory Commission ("NRC") issued an "Order Modifying Licenses with Regard to Reliable Spent Fuel Pool Instrumentation" ("SFP Order") to all reactor licensees and an "Order Modifying Licenses with Regard to Reliable Hardened Containment Vents" ("BWR Order") to all operating boiling water reactor ("BWR") licensees with Mark I and Mark II containments. The Orders specified that any person adversely affected by the Orders may request a hearing within 20 days. On April 2, 2012, Pilgrim Watch filed a "Request for Hearing Regarding Insufficiency of Order Modifying Licenses with Regard to Spent [
sic] Reliable Spent Fuel Pool Instrumentation" ("Pilgrim Watch SFP Petition") and a "Request for Hear ing Regarding Insufficiency of Order Modifying Licenses with Regard to Reliable Hardened 2Containment Vents" ("Pilgrim Watch BWR Petition"). One day late, on April 3, 2012, Beyond Nuclear filed a "Pleading to Co-Petition in the Matter of Pilgrim Watch Request for Hearing Regarding Insufficiency of Order Modifying Licenses with Regard to Spent Fuel Pool Modifications" and a "Pleading to Co-Petition in the Matter of Pilgrim Watch Request for Hearing Regarding Insufficiency of Order Modifying Licenses with Regard to Reliable Hardened Containment Vents." On April 18, 2012, this Atomic Safety and Licensing Board was established and the two proceedings were consolidated. Florida Power & Light Company ("
FPL"), NextEra Energy Seabrook, LLC, NextEra Energy Point Beach, LLC, and NextEra Energy Duane Arnold, LLC (collectively "NextEra")
1 hereby submit this joint answer opposing the hearing requests because Pilgrim Watch and Beyond Nuclear (collectively "Petitioners") have failed to demonstrate standing and have failed to proffer a contention that is within the scope of this proceeding.
2 10 C.F.R. §§ 2.309(d), (f)(1)(iii). I. Both Hearing Requests Must Be Denied Both requests should be denied under longstanding Commission case law implementing Bellotti v. NRC. 725 F.2d 1380 (D.C. Cir. 1983), aff'g Boston Edison Co.
(Pilgrim Nuclear Power Station), CLI-82-16, 16 NRC 44 (1982). Under Bellotti , petitioners may not obtain hearings to challenge NRC Staff enforcement orders as too weak or otherwise insufficient. Alaska Dep't of Transportation & Public Facilities (ADOT), CLI-04-26, 60 NRC 399, 404 (2004).
See also Maine Yankee Atomic Power
1 NextEra files this answer on behalf of St. Lucie Nuclear Power Plant Units 1 and 2 and Turkey Point Nuclear Plant Units 3 and 4 in Florida, Seabrook Station Unit 1 in New Hampshire, Point Beach Nuclear Plant Units 1 and 2 in Wisconsin, and the Duane Arnold Energy Center ("DAEC") in Iowa. DAEC is a BWR with a Mark I containment design. It is the only NextEra facility subject to the BWR Order.
2 None of the NextEra licensees were served with the hearing requests. Nonetheless, NextEra is filing this Answer to preserve its rights.
3 Co. (Maine Yankee Atomic Power Station), CLI-04-5, 59 NRC 52, 57 (2004);
Detroit Edison Co. (Fermi Power Plant Independent Spent Fuel Storage Installation), CLI-10-3, 71 NRC __ (2010) (slip op. at 5). The contention set forth in the Pilgrim Watch SFP Petition specifically alleges that the NRC's SFP Order is "insufficient" and calls for the imposition of further measures, namely low-density used fuel storage and the required removal of used fuel assemblies more than five years old. The contentions set forth in the Pilgrim Watch BWR Petition also allege that the BWR Order is "insufficient" and call for the imposition of further measures, namely requirements for vent filtration and rupture disc actuation. Accordingly, both hearing requests must be rejected under Bellotti. The NRC limits the scope of challenges to its enforcement orders to the issue of whether the order should be sustained. See, e.g., BWR Order at 9; SFP Order at 11 ("If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained.") The Bellotti court upheld this limitation. 725 F.2d at 1381. Thus, for an enforcement order, "the threshold question, intertwined with both standing and contention admissibility issues, is whether the hearing request is within the scope of the proceeding outlined in the enforcement order itself, i.e., whether the [Order] should be sustained."
3 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-04-23, 60 NRC 154, 157 (2004). Therefore, the only matters at issue in this proceeding are the measures described in the Orders that are intended to improve plant safety. Id. at 157-58. And those issues within the scope of the proceeding may be challenged "only if they amount to matters that oppose the issuance of the order as
3 Under 10 C.F.R. § 2.309(a), a licensing board may only grant a hearing if the "requestor/petitioner has standing under the provisions of paragraph (d) of this section and has proposed at least one admissible contention that meets the requirements of paragraph (f) of this section."
4unwarranted, so as to require relaxation, or affirmatively detrimental to the public health and safety, so as to require rescission (as opposed to supplementation)."
Id. at 158. A. Petitioners Have Not Demonstrated Standing Neither petition attempts to demonstrate standing to challenge the Order as applied to any particular NextEra plant. Ho wever, the captions of both the Pilgrim Watch and Beyond Nuclear Petitions demonstrate an inte nt to address all reactors covered by the Orders. Pilgrim Watch limits its standing argument to the proximity of a member to the Pilgrim Nuclear Power Station in Plymouth, Massachusetts. Pilgrim Watch SFP Petition at 1-2; Pilgrim Watch BWR Petition at 1-2. By contrast, Beyond Nucl ear asserts, without any support, that it "has members who live, work and recreate within the 50-mile Emergency Planning Zone for nuclear power plants with spent fuel pools subject to EA-12-051" and of "all General Electric Mark I and Mark II [BWRs] subject to EA-12-050." Beyond Nuclear SFP Petition at 1; Beyond Nuclear BWR Petition at 1. But proximity alone is not sufficient to demonstrate standing in an enforcement case.
4 Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), LBP-08-14, 68 NRC 279, 290 (2008) (citing ADOT, CLI-04-26, 60 NRC at 406). Instead, as explained below, petitioners must allege a harm resulting from the measures mandated by the Order. Because the scope of the proceeding is limited to the corrective measures addressed in the order, to demonstrate standing, Petitioners must "show how the corrective measures would cause them [] harm." Davis-Besse, CLI-04-23, 60 NRC at 158. Further, Petitioners must provide factual support for their assertion that their claimed injury is redressable, "that is, that they would be better off if the order were
4 Even if the NRC's proximity presumption applied to enforcement cases, Beyond Nuclear's bald assertion that it has members who live within 50 miles, without providing names or supporting affidavits, is clearly insufficient to demonstrate standing.
5vacated."
Fermi, CLI-10-3, 71 NRC __ (slip op. at 5). Here, by focusing on the insufficiency of the ordered measures, Petitioners fail to show any harm resulting from those measures and so fail to establish standing. B. Petitioners Have Not Proffered an Admissible Contention By the same token, by focusing on issues outside the scope of the proceeding, Petitioners show that their contentions are not admissible.
See 10 C.F.R. § 2.309(f)(1)(iii) (contentions must be within the scope of the proceeding). Petitioners argue that the SFP Order is "insufficient to protect public, health, safety and property because it lacks a requirement for licensees to re-equip their spent fuel pools to low-density, open-frame design and storage of assemblies 5 years removed from the reactor core placed in dry casks." Pilgrim Watch SFP Petition at 1 (emphasis added). Similarly, Petitioners argue that the BWR Order is "insufficient to protect public, health, safety and property because it lacks a requirement for licensees to install filters in the direct torus vents (DTV)" and that it is also "insufficient to protect public, health, safety and property because it does not require the hardened DTV to be passively actuated by means of a rupture disc, so that neither water nor electrical supply is needed and operator intervention is not necessary to actuate the system."
5 Pilgrim Watch BWR Petition at 3 (emphases added). These challenges are outside of the scope of this proceeding, which is limited to whether the measures mandated in the Order should be upheld.
Davis-Besse , CLI-04-23, 60 NRC at 157. Therefore, these contentions are not admissible. 10 C.F.R.
§ 2.309(f)(1)(iii).
5 Moreover, Pilgrim Watch claims that its contentions "seek[] compliance with NEPA," the purpose of which is to ensure that federal decisions "protect, restore and enhance the environment."
See e.g. SFP Petition at 3. But the mere invocation of NEPA does not broaden the scope of this proceeding, as set forth in the Orders themselves - "whether this Order should be sustained."
6C. The Beyond Nuclear Hearing Requests Are Impermissibly Late Beyond Nuclear filed its hearing request one day late, on April 3, 2012. Instead of filing a motion to for leave to file an out-of-time hearing request, Beyond Nuclear simply argued that, while the Orders were dated March 12, they were not made publicly available until March 14 and so "in all fairness" NRC should accept a pleading provided within 20 days of the Orders being publicly released on ADAMS. Beyond Nuclear BWR Petition at 2-3. Of course, the proper course of action would have been to file a motion and to seek that relief before the hearing request was due. In the alternative, Beyond Nuclear could have addressed the criteria for nontimely contentions in 10 C.F.R.§ 2.309(c). In addition to demonstrating good cause for failing to file on time (§2.309(c)(1)(i)), Beyond Nuclear should also have addressed the extent to which its interests will be represented by existing parties (§2.309(c)(1)(iv)). Because Beyond Nuclear simply seeks to join in Pilgrim Watc h's existing contentions, it is plain that its interests on those contentions could be represented by Pilgrim Watch. In any event, Beyond Nuclear's argument is unavailing because the contents of the Orders were not secret. The NRC Staff provided draft versions of the Orders to the Commission for its consideration in SECY-12-0025, "Proposed Orders and Requests for Information in Response to Lessons Learned from Japan's March 11, 2011, Great Tohoku Earthquake and Tsunami," which was dated February 17, 2012 and was released publicly in ADAMS on February 22, 2012. ADAMS Accession No. ML12039A111. The Commission approved the issuance of the Orders, with specific identified revisions, in SRM-SECY-12-0025, "Staff Requirements-SECY-12-0025-Proposed Orders and Requests for Information in Response to Lessons Learned from Japan's March 11, 2011, 7Great Tohoku Earthquake and Tsunami," whic h was dated March 9, 2012 and was also released publicly in ADAMS on March 9, 2012. ADAMS Accession No. ML120690347.
Beyond Nuclear's claims that the contents of the Order were unknown until March 14, 2012 is simply incorrect.
II. Conclusion Both Petitioners have failed to establish standing and have failed to proffer an admissible contention within the scope of the proceeding. Therefore, their requests for hearing must be denied. Respectfully Submitted,
/Signed (electronically) by Steven Hamrick/
Mitchell S. Ross Florida Power & Light Company
700 Universe Blvd.
Juno Beach, Florida 33408
Telephone: 561-691-7126 Facsimile: 561-691-7135 E-mail: mitch.ross@fpl.com Steven C. Hamrick Florida Power & Light Company 801 Pennsylvania Avenue, N.W. Suite 220
Washington, DC 20004
Telephone: 202-349-3496 Facsimile: 202-347-7076 E-mail: steven.hamrick@fpl.com
Counsel for:
Florida Power & Light Company
NextEra Energy Seabrook, LLC NextEra Energy Point Beach, LLC
NextEra Energy Duane Arnold, LLC
April 27, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
In the Matter of )
) Docket Nos. EA-12-050
ALL POWER REACTOR LICENSEES ) EA-12-051 AND HOLDERS OF CONSTRUCTION )
PERMITS IN ACTIVE OR DEFERRED ) ASLBP No. 12-918-01-EA-BD01 STATUS )
)
ALL OPERATING BOILING WATER )
REACTOR LICENSEES WITH MARK I )
AND MARK II CONTAINMENTS )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "Answer of Florida Power & Light Company, NextEra Energy Seabrook, LLC, NextEra Energy Point Beach, LLC, and NextEra Energy Duane Arnold, LLC Opposing the Requests for Hearing of Pilgrim Watch and Beyond Nuclear on EA-12-050 With Regard to Reliable Hardened Containment Vents and EA-12-051 With Regard to Reliable Spent Fuel Pool Instrumentation" were provided to the Electronic Information Exchange for service to those individuals listed below and others on the service list in this proceeding, this 27th day of April, 2012. Administrative Judge Alan S. Rosenthal, Esq.
Atomic Safety and Licensing Board
Mail Stop T-3 F23
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
Administrative Judge E. Roy Hawkens, Esq.
Atomic Safety and Licensing Board
Mail Stop T-3 F23
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
2Administrative Judge Dr. Anthony J. Baratta Atomic Safety and Licensing Board
Mail Stop T-3 F23
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
Secretary Att'n: Rulemakings and Adjudications Staff
Mail Stop O-16 C1
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
Office of Commission Appellate Adjudication Mail Stop O-16 C1
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
Carrie Safford, Esq.
Christopher Hair, Esq.
Mauri Lemoncelli, Esq.
Catherine Scott, Esq.
Brian Newell, Paralegal Lauren Woodall, Paralegal
Office of the General Counsel
Mail Stop O-15 D21
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
Mary Lampert Pilgrim Watch, Director 148 Washington Street
Duxbury, MA 02332 Paul Gunter, Director Reactor Oversight Project
6930 Carroll Avenue Suite 400 Takoma Park, MD 20912
Paul M. Bessette, Esq.
Stephen J. Burdick, Esq.
Morgan, Lewis & Bockius, LLP 1111 Pennsylvania, Ave. N.W.
Washington, D.C. 20004
Jennifer Mansh, Esq. Amy C. Roma, Esq.
Ruth M. Porter, Esq.
Hogan Lovells, US LLP Columbia Square 555 Thirteenth Street, NW
Washington, D.C. 20004
/Signed (electronically) by Steven Hamrick/
Steven Hamrick