ML12118A471
| ML12118A471 | |
| Person / Time | |
|---|---|
| Site: | Millstone, Kewaunee, Surry, North Anna, EA-12050, EA-12051 |
| Issue date: | 04/27/2012 |
| From: | Cuoco L M, Lewis D R, Markus S L Dominion, Dominion Resources Services, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 22335, ASLBP 12-918-01-EA-BD01, EA-12-050, EA-12-051, FOIA/PA-2013-0030, FOIA/PA-2013-0139 | |
| Download: ML12118A471 (10) | |
Text
April 27, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
In the Matter of )
) Docket No. EA-12-051 All Power Reactor Licensees and Holders )
Of Construction Permits in Active or ) ASLBP No. 12-918-01-EA Deferred Status )
DOMINION'S ANSWER OPPOSI NG REQUESTS FOR HEARING I. INTRODUCTION Virginia Electric and Power Company (dba Dominion Virginia Power), Dominion Nuclear Connecticut, Inc., and Dominion Energy Kewaunee, Inc. (collectively, "Dominion"), as the licensees for the North Anna, Surry, Millston e, and Kewaunee power stations, hereby answer the requests ("Requests") submitted by Pilgrim Watch (PW) 1 and Beyond Nuclear (BN) 2 (collectively, "Petitioners") seek ing a hearing on the Order to Modify Licenses with Regard to Reliable Spent Fuel Pool Instrumentation is sued by the Commission on March 12, 2012 (the "Order").3 The BN Request purports to adopt without any modificati on the substantive arguments advanced in the PW Request. As discussed below, the Requests should be denied because (1) Petitioners are seeking to raise issues outside of the scope of any proceeding related
1 Pilgrim Watch Request for Hearing Regarding Insufficiency of Order Modifying Licenses with Regard to Spent [sic] Reliable Spent Fuel Pool Instrumentation (Apr. 2, 2012) ("PW Request"), as supplemented by the Pilgrim Watch Supplement to Request for Hearing Regarding Insufficiency of Order Modifying Licenses with Regard to Spent [sic] Reliable Spent Fuel Pool Instrumentation (Apr. 12, 2012).
2 Beyond Nuclear 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 (Apr. 3, 2012) ("BN Request").
3 Consistent with 10 C.F.R. § 2.309(h)(1), this Answer to both the PW Request and the BN Request is filed within 25 days of their service. Because the BN Request adopts the PW Request and accompanying exhibits verbatim, Dominion is providing this consolidated response to both parties' submissions.
2 to the Order, (2) Petitioners do not have standing, and (3) Petitioners have not identified any admissible contention.
4 II. BACKGROUND On March 12, 2012, the Commission issued an Order immediately modifying the licenses of all licensees, including Dominion, who are pow er reactor licensees or construction permit holders, to require provisions for reliab le spent fuel pool indications. See 77 Fed. Reg. 16,082 (Mar. 19, 2012). The Order imposes a series of requirements to "provide a greater capability" with respect to "a reliable means of remotely monitoring wide-range spent fuel pool levels to support effective prioritization of event mitigation and recovery actions in the event of a beyond-design-basis external event." Id.
at 16,084.
5 The Order states that "[i]n accordance with 10 CFR 2.202, the licensee or CP holder must, and any other person adversely affected by this Order may, submit an answer to this Order, and may request a hearing on this Or der, within twenty (20) days of the date of this Order." Id.
at 16,085. "If a person other than the Licensee or CP holder requests a hearing, that person shall set forth with particularity the manner in which hi s interest is adversely affected by this Order and shall address the criteria se t forth in 10 CFR 2.309(d)." Id.
at 16,086. If a hearing on the Order is held, "the issue to be considered at su ch hearing shall be whet her this Order should be sustained." Id. at 16,085 (emphasis added).
4 In addition to these deficiencies, the BN Request was untimely filed on April 3, 2012. The Order, issued on and dated March 12, 2012, required any hearing request to be filed within 20 days of the date of the Order. By these terms, the deadline for filing a hearing request was April 2, 2012. Although BN submits that "the Final Order and package did not become a public document until March 14, 2012" (BN Request at 2), BN does not deny that it in fact received the Order on March 12, 2012. The Order was distributed on the Commission's electronic distribution list (listserve) for multiple dockets on March 12, 2012, including EA-12-051. Mr. Paul Gunter of BN is shown among the EA-12-051 docket distribution list recipients of the Order as it was emailed by Commission staff on March 12, 2012. Thus, BN would have actually received the Order on March 12, 2012.
5 The specific requirements, as applicable to licensees and construction permit holders identified in Attachment 1 to the Order, are set forth in Attachments 2 and 3 to the Order. 77 Fed. Reg. at 16,084.
3 III. DISCUSSION A. The Requests Should Be Denied Because They Seek a Hearing on Issues Outside the Scope of the Proceeding The Requests should be denied be cause the issues they seek to raise are outside the scope of the proceeding. The Requests as sert that the Order "is insuffici ent to protect public health and safety and must be supplemented with a requireme nt 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 to the pool placed in dry casks." PW Request at 5. Moreover, the Requests contend that "[t]he Order's focus simply on spent fuel pool instrumentation fail s to address the real problem." Id.
at 3. As discussed above, the NRC has explicitly limited the scope of this proceeding to the question of whether the Orde r should be sustained, a nd Petitioners' Requests go far beyond this narrow question.
It has long been recognized that the Commission has authority under the Atomic Energy Act to limit the scope of a hearing on an enforcement order to the issue of whether the order should be sustained. See Bellotti v. NRC , 725 F.2d 1380, 1381-82 (D.C. Cir. 1983); Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power St ation), CLI-04-05, 59 N.R.C. 52, 56 (2004). Clearly, Petitioners' attempt to turn this proceeding into a hearing on whether the "NRC's assumptions about U.S. operator's capability to mitigate an accident at Pilgrim NPP, or similar reactors, are unrealistically optimistic" (PW Request at 11), as well as an "operator's ability to carry out mitigative measures . . . in an accident environment" (id.
), is precisely the type of "interminable, free-ra nging" expansion that would deluge the Commission and hamper its ability to impose focused compensatory measures. Bellotti , 725 F.2d at 1381. If successful, Petitioners would turn this focused regulatory proceeding into exactly the type of "amorphous 4 public extravaganzas" that Bellotti eschews. Id.
at 1382-83. Thus, the issues which Petitioners seek to litigate are not appropriate matters for this proceeding.
Rather than addressing the que stion of whether the Order sh ould be sustained, Petitioners attack the factual assumptions on which the Order is based and seek to supplement the Order with additional requirements. PW Request at 11. However, as the Commission has affirmed, "Bellotti . . . holds that NRC hearing petitioners may not seek additional measures going beyond the terms of the enforcement order trigge ring the hearing request." Maine Yankee , CLI-04-05, 59 N.R.C. at 58 (footnote omitted); see also Sequoyah Fuels Corp. (UF 6 Production Facility), CLI-86-19, 24 N.R.C. 508, 513-14 (1986). Similarly, a request to litigate the factual predicate of an order "is exactly the type of attempt to expand the scope of an enforcement proceeding that the narrowly drawn order in this instance is intended to and properl y does preclude." Sequoyah , CLI-86-19, 24 N.R.C. at 513. Since Petitioners no where challenge whether the Order should be sustained, which is the only question within the scope of this proceed ing, their request for a hearing must be denied.
B. The Requests Should Be Denied Because Petitioners Lack Standing The Requests must also be denied because Petitioners have not demonstrated their standing to challenge the Order. A petitioner such as PW or BN is not affected when its only injury stems from the absence of additional measures in an enforcement order.
In order to be a party to an enforcement proceeding, 6 a petitioner must demonstrate that it "has an interest that may be affected by the pr oceeding, i.e., it has standing to participate."
Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-94-12, 40 N.R.C. 64, 71 (1994). To
6 Although the Order did not arise out of any violation, the NRC characterizes orders to modify licenses as enforcement orders under 10 C.F.R. § 2.202. See 77 Fed. Reg. at 16,084 (citing 10 C.F.R. § 2.202).
5 demonstrate standing, "a petitioner must (1) allege an injury in fact that is (2) fairly traceable to the challenged action and (3) is likely to be redressed by a favorable decision." Id.
at 71-72. Orders modifying a license require an "added dimension" to the standing analysis, as articulated in Bellotti , supra. Detroit Edison Co. (Fermi Power Plant Independent Spent Fuel Storage Installation), LBP 20, 70 N.R.C. 565, 575 (2009), aff'd , CLI-10-03, 71 N.R.C. 49 (2010). Bellotti holds that, where the NRC has limited the scope of the proceeding to the question of whether an orde r should be sustained (see 725 F.2d at 1382 & n.2), it has "preclud[ed] from intervention persons . . . who do not object to the Order but might seek further corrective measures." Bellotti , 725 F.2d at 1382 n.2. Thus, in such a context, "a petitioner cannot obtain a hearing by simply suggesting that the order should be strengthened in some way. Rather, a petitioner must show that he would be better off in the absence of any order at all."
Fermi, LBP-09-20, 70 N.R.C. at 575. Here, Petitioners have made no such showing. The injuries alleged by PW and BN are not fairly traceable to the Order or redressable in this proceeding. Petitioners' concerns with the sufficiency of the Order modifyi ng facility licenses lie outside the scope of the opportunity for hearing on the Order where, as here, the issue sp ecified for hearing is only "whether this Order should be sustained." 77 Fed. Reg. at 16,085. In essence, by asserting that they may be harmed by the failure of the content of the Order, i.e., the insufficiency of the requirements, Petitioners are asserting a claim that is not redressable in this proceeding. In the same vein, Petitioners are suffering no injury that is fairly traceable to the Order. Petitioners certainly are not injured by the added safety measures imposed by the Order. Rather, whatever purported injury that Petitioners believe they are suffe ring can only relate to the alleged need for measures outside the scope of this limited proceeding. If Petitioners wish to seek more stringent measures or contest 6 the implementation of the Order, then the pr oper vehicle is a petiti on under 10 C.F.R. §2.206.
See Bellotti , 725 F.2d at 1382. Finally, Petitioners have made no showing of individualized interest with respect to Dominion's plants. PW submits that many of its members live in the vicinity of the Pilgrim Nuclear Power Station, but makes no attempt to a ddress standing to challenge the Order as it applies to any other plant. PW Request at 2. BN alleges 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 who feel that their health and safety is adversely impacted by EA-12-050 [sic] as currently written . . . ." BN Re quest at 1-2. BN fails to identify any specific members as required by 10 C.F.R. § 2.309(d). Furthe r, these vague referen ces to the distance of unspecified individuals to uns pecified plants are inadequa te to support standing, as the "proximity presumption" is inapplicable in cases involving enforcement orders. See Nuclear Fuel Services, Inc. (Special Nuclear Facility), LB P-07-16, 66 N.R.C. 277, 293-94 (2007).
Accordingly, Petitioners have failed to demonstrate their standi ng to challenge the Order, and certainly have made no showing whatsoever of a ny cognizable interest in its application to any of Dominion's units.
C. The Requests Should Be Denied Because Petitioners Identify No Admissible Contention Finally, the Requests should be denied because Petitioners identify no contention meeting the admissibility standards in 10 C.F.R. § 2.309(f)(1). Because the sufficiency of the Order is beyond the scope of this proceeding, the sole contention raised by Petitioners fails to satisfy 10 C.F.R. § 2.309(f)(1)(iii) or (iv). Further, even if the sufficiency of the Order were within the scope of the proceeding, which it is not, the contention would still be inadmissible under 10 7 C.F.R. § 2.309(f)(1)(v)-(vi), because of a lack of requisite support demonstrating the existence of a genuine dispute. The contention raised in the PW Request appears focused on operating boiling water reactors (indeed, PW captions its request as pertaining to "Operating Boiling Water Licensees"), not pressurized water reactors like Dominion's operating units.
7 Indeed, the documents on which PW appears to rely are in large measure pleadings in the Pilgrim license renewal proceeding. PW Request at 4-5. Further, those documents have already been considered by the Commission, and none of them warranted any relief. The Comm onwealth of Massachusetts' 2005 hearing request/rulemaking petition (see PW Request at 4) and the 2005 National Academy of Sciences Report (see PW Request at 12-15) were carefully considered by the Commission in its decision denying the Commonwealth's request for rulemaking to require analysis of measures to further mitigate spent fuel pool accident risk in license renewal proceedings. 73 Fed. Reg. 46,204 (Aug.
8, 2008), aff'd , New York v. NRC, 589 F.3d 551 (2d Cir. 2009) (per curiam). The June 1, 2011 Report by Gordon Thompson (see PW Request at 4, 8-10) was considered by the Licensing Board in the Pilgrim license renewal proceeding, which found inter alia that the Thompson Report did not raise any significant new information and was too speculative to demonstrate a genuine dispute in that proceeding. Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-11-35, 74 N.R.C. __, s lip op. at 65-66 (Nov. 28, 2011), aff'd , CLI-12-06, 75 N.R.C.__, slip op. at 19-26 (Mar. 8, 2012). Since none of these documents which PW now seeks to recycle previously raised a significant or material concern, it is hard to fathom how they can now demonstrate any insufficiency in the Order.
7 The only boiling water reactor owned by Dominion is the permanently shut-down, defueled Millstone Unit 1. Because it is no longer licensed to operate, that unit is not subject to the Order.
8 More importantly, neither Request makes any effort to relate any of this information to Dominion's units. The Requests make no showi ng that Dominion's nuclear units present any unacceptable risk. Accordingly, even if the sufficiency of the Order were within the scope of the proceeding (which it is not), the Requests provide no basis for challenging the sufficiency of the Order as applied to Dominion's units (or indeed to a ny other reactor).
IV. CONCLUSION For all of the above stated reas ons, the Requests should be denied. Respectfully submitted,
/Signed electronically by David R. Lewis/
__________________________________
David R. Lewis Stephen L. Markus Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW
Washington, DC 20037-1122
Tel. (202) 663-8474 Email: david.lewis@pillsburylaw.com
Lillian M. Cuoco
Senior Counsel Dominion Resources Services, Inc.
120 Tredegar Street, RS-2 Richmond, VA 23219
Tel.(804) 819-2684 Email: lillian.cuoco@dom.com
Counsel for Dominion
Dated: April 27, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
) Docket No. EA-12-051 All Power Reactor Licensees and Holders )
Of Construction Permits in Active or ) ASLBP No. 12-918-01-EA-BD01 Deferred Status ) CERTIFICATE OF SERVICE I hereby certify that a copy of "Dominion' s Answer Opposing Requests for Hearing,"
dated April 27, 2012, was provided to the Electronic Information Exchange for service on the individuals listed below, th is 27th day of April, 2012.
Secretary Att'n: Rulemakings and Adjudications Staff
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
hearingdocket@nrc.gov Office of Commission Appellate Adjudication
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAMAIL@nrc.gov Administrative Judge Alan S. Rosenthal, Chair Atomic Safety and Licensing Board
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Email: alan.rosenthal@nrc.gov;
Rsnthl@verizon.net
Administrative Judge E. Roy Hawkens Atomic Safety and Licensing Board
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Email: roy.hawkens@nrc.gov
Administrative Judge Dr. Anthony J. Baratta Atomic Safety and Licensing Board
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Email: anthony.baratta@nrc.gov Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ogcmailcenter@nrc.gov
2 Ms. Mary Lampert 148 Washington Street
Duxbury, MA 02332 mary.lampert@comcast.net Paul Gunter Beyond Nuclear
6930 Carroll Avenue, Suite 400 Takoma Park, MD 20912 E-mail: paul@beyondnuclear.com
/Signed electronically by/
David R. Lewis