ML20101F961
| ML20101F961 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 06/18/1992 |
| From: | Macevoy J NORTHEAST NUCLEAR ENERGY CO., WINSTON & STRAWN |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#292-13026 OLA, NUDOCS 9206250232 | |
| Download: ML20101F961 (18) | |
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. LM ll P UNITED STATES OF AMERICA "M NUCLEAR REGULATORY COMMISSION BEFORE THE NUCLEAR REGULATORY COMMISSION 92 JN 19 P3 :15
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In the Matter of bd'
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NORTHEAST NUCLEAR ENERGY CO. Docket No. 50-336 ' S N (Millstone Nuclear Power Station, Unit No. 2)
LICENSEE NORTHEAST NUCLEAR ENERGY COMPANY'S ANSWER TO REQUEST FOR HEARING AND PETITION TO INTERVENE BY M.J. PRAY In accordance with 10 C.F.R. S 2.714(c), Northeast Nuclear Energy Company ("NNECO"), licensee in the captioned matter, hereby files its answer to a request for hearing and petition to intervene in response to a notice of Opportunity for Hearing published in the Federal Register on April 28, 1992 (57 Fed. Reg.
17,934) regarding a proposed license amendment. Petitioner, Michael J. Pray, filed a nontimely request for a hearing and petition for intervention. The petition also seeks an environmental impact study under the National Environmental Policy Act. Contrary to the instructions at 57 Fed. Reg. 17,935, the petition was not sent to NNECO's counsel.1/
Petitioner does not meet the requirements for entitling r=Litioner to a hearing and intervention, as set forth in the notice and 10 C.F.R. S 2.714. Moreover, the petition is late without good cause. Therefore, NNECO requests that the request for a hearing and petition to intervene be denied.
1/ The petition was forwarded to NNECO's counsel by the NRC on June 11, 1992.
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4 II. BACKGROUND On April 16, 1992, NNECO proposed a Technical Specification amendment to govern its use of the spent fuel pool at Millstone Unit No. 2 (" Unit 2"). This amendment will modify the existing two-region spent fuel pool design to a three-region configuration.
On April 28, 1992, the Staff proposed a determination that the amendment request involves "no significant hazards consideration,"
and (consistent with 10 C.F.R. SS 2.105 and 50.91) published a notice of Opportunity for Hearing.2/ The notice required that written requests for hearing and petitions for leave to intervene in accordance with 10 C.F.R. S 2.714 be filed by May 28, 1992.
The notice also stated that:
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for hearing will not be entertained absent a determination by the Commission . . . that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714 (a) (1) (1)-(v) and 2.714(d).
57 Fed. Reg. at 17,935.
In response to the notice, Petitioner filed with the Commission, by letter postmarked June 3, 1992, a request for a hearing-and petition to intervene with the Commission. On June 4, 1992, the Staff made all appropriate findings, including a final 2/ " Northeast Nuclear Energy Co.; Consideration of Issuance of Amendment to Facility Operating License, Proposed No
-Significant Hazards Consideration Determination, and Opportunity for Hearing," 57 Fed. Reg. 17,934 (1992).
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-4 "no significant hazards consideration" finding and issued the requested Technical Specification amendment in accordance with 10 C.F.R. S 50.91(a) (4) .U NNECO is filing this Answer to the request for hearing and petition to intervene pursuant to 10 C.F.R. S 2.714(c), which provides that a party to a proceeding may file an answer to a petition to intervene within ten days after service. Petitioner served his document on the NRC by U.S. Mail postmarked June 3, 1992. The NRC provided NNECO with a copy on June 11. If the document had been served on NNECO by mail on June 3, 10 C.F.R.
S 2.710 would have provided NNECO with five days in addition to 4 the ten days provided by 10 C.F.R. S 2. 714 (c) to answer the petition. Thus, a timely response to service on June 3 would have been June 18, 1992, but ten days from actual receipt is June 22, 1992.
s 1/ " Safety Evaluation by the Office of Nuclear Reactor Regulation Related to Amendment No. 158.to Facility Operating License No. DPR-65, Northeast Nuclear Energy Company, Et A1. Millstone Nuclear Power Station, Unit No. 2 Docket No. 50-336," June 4, 1992, ("SER") at 5-6.
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III. DISCUSSION A. The General Recuirements of 10 C.F.R. E 2.714 The published notice of opportunity for hearing requires that "any person whose interest may be affected by this proceeding and who wishes to participate as a party in the procf W11ng must file a written request for a hearing and a petition for leave to intervene . . . in accordance with 10 CFR Part 2." 57 Fed. Reg.
17,934. Pursuant to 10 C.F.R. S 2.714(a):
(1) Any person whose interest may be affected by a proceeding and who desires to participate as a party shall file a written petition for leave to intervene.
(2) The petition shall set forth with
. particularity the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding, including the reasons why petitioner should be permitted to intervene, with particular -
reference to the factors in paragraph (d)(1) of this section, and the specific aspect or aspects of the subject of the proceeding as to which petitioner wishes to intervene.
Pursuant to 10 C.F.R. S 2. 714 (d) (1) , a-petition for leave to intervene must address the following factors:
(1) The nature of the petitioner's right under the Act to be made a party to the proceeding.
(2) The nature and extent of the petitioner's property, financial, or other interest in the proceeding.
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(3) The possible effect of.any order that may be entered in the proceeding on the petitioner's interest.
i These factors govern a petitioner's standing to intervene.
The NRC applies contemporaneous judicial concepts of standing to determine whether a petitioner has sufficient interest in a proceeding to be entitled to intervene as a matter of right.
Public Service Comoany of New Hamoshire (Seabrook Station, Unit
- 1) , CLI-91-14, 34 NRC 261, 266 (1991); Florida Powei & Licht Comoany (Turkey Point Nuclear Generating Plant, Units 3 and 4),
CLI-91-13, 34 NRC 155, 187 (1991). "These concepts require a showing that (a) the action will cause ' injury in fact,' and (b) the injury is arguably within the ' zone of interests' protected by the statute governed by the proceeding." getrooolitan Edison Comoany, et al. (Three Mile Island Nuclear Station, Unit No. 1),
CLI-83-25, 18 NRC 327, 332 (1983). The NRC has periodically reaffirmed those requirements for intervention, more recently, for example, in Sacramento Municioal Utility District-(Rancho Seco Nuclear senerating Station), CLI-92-2, 35 NRC 47, 56 (1994).
As the Licensing Board f n The Cleveland Electric Illuminating Comoany (Perry Nuclear Power Plant, Unit No. 1), LBP-92-4, 35 NRC (March 18, 1992), slip op. at 12, discussed these standards, they require that:
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[T]he asserted injury must be " distinct and palpable"lU and "particular (and)' concrete,"11/ 2 opp,oac.t to being
"' conjectural . . . (,) hypothetica: ' "N or
" abstract."III . . . Additionally, taire must be a causal nexus between the asserted injury and the challenged action.
30 Warth v. Seldin, 422 U.S. 490, 501 (1975).
3L United States v. Richardson, 418 U.S. 166, 177 32 (1974).
Los Anaeles v. Lyons, 461 U.S. 95, 102 (1983).
33 Sinon v. Eastern Kv. Welfare Richts Ora., 426 U.S.
[26] at 40.
B. Proximity of Residence to the Plant is an Inadequate Basis for Standina in an Operatina License Amendmer_t Proceedina This proceeding is a license amendment oroceedina within the meaning o'. Atomic Energy Act 5 189a(1) (42 U. S.C.
S 2239(a)(1)) .
While a petitioner's residence within fifty miles-of a power reactor may support a finding of standing in an operating license proceeding, Philadelchia Electric Comoany (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1433-35 (1982),
standing to intervene in a license amendment proceeding requires a more particularized showing of harm or injury and does not parmit the petitioner to rest on the mere presumption that residence within fifty miles of the reactor creates standing.
As the Commi .' noted in the St. Lucie proceeding on an ,;
exemption which was nott;ed for opportunity for a hearing, cases conferring standing based on a specific distance from the plant
" involved the construction or operation of the reactor itself, with clear implications for the offsite environment, or major alterations to the facility with a clear potential for offsite
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consequences."--Florida Power & Licht Comoany (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329 (1989).
The Commission contrasted such cases with those involving minor license amendments such as the one here: " Absent situations involving such obvious potential for cffsita consequences, a petitioner must alleae some specific 'iniurv in fact' that will result from the action taken , . . .
145 at 329-30 emphasis added). Licensing boards have consistently interpreted this opinion to eliminate the presumption of standing based on residence within fifty miles of the plant in license amendment cases such as this. For example, tLe Licensing Board in Shoreham heldt The Commission does not allow the (fifty nile) presumption to be applied to all license amendments. It only does so in those instances involving an obvious potential for offsite consequences. Those include applications for construction permits, operating licenses or significant amendments thereto such as the expansion of the capacity of a epent fuel pool. Those cases involve the operation of the reactor itself, or major alterations to the facility with a clear potential for offsite consequences. Absent situations with obvious potential for offsite consequences, a petitioner must allege some speci2ic injury in fact that will result from the action taken.
Lona Island Lichtina Comoany (Shoreham Nuclear Power Station, Unit 1), LBP-91-7, 33 NRC 179, 186 (1991). In other words, because a petitioner in an operating license amendment proceeding such as this is not entitled-to rely upon the presumption of standing in an operating license case, he is obliged to demonstrate compliance 7
with the three-fold requirements under 10 C.F.R. S 2.714(d) to demonstrate his interest in the proceeding.
The commission's adjudicatory boards have applied this principle in a number of proceedings involving operating license amendments for changes to spent fuel pool operations. In Vircinia Electric & Power comoany (North Anna Power Station, Units 1 and 2), ALAB-790, 20 NRC 1450 (1984), the Appeal Board upheld the denial of a request for hearing and intervention regarding an amendment to expand the capacity of the North Anna spent fuel pool to accommodate the receipt of assemblies from a sister plant. The Appeal Board held that the petition it rejected was not based upon "a particularized claim that the modification of the North Anna spent fuel pool might pose a health and safety risk to (the intervenor's) members or have a significant environmental impact."
Idi at 1453. Without regard to the residence of any of the petitioning organization's members, the Appeal Board simply observed that the proposed amendment entailed no "significant safety or environmental implications," such that "the undertaking of the [ spent fuel pool) modification at this time perforce could occasion no harm to the organization or its members." Idx at 14S'4.
In a later case involving a license amendment to change the permissible maximum K,gg of the fuel pool from 0.90 to 0.95, the Licensing Board held that:
This_ case concerns a request for a license amendment and is not controlled by the same standing considerations 8
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that govern standing when an operating license is sought. Whatever the risk to the surrounding community from a reactor and its associated fuel pool, the risk from the fuel pool alone is less and the distance of residence from the pool for which standing would be appropriate would, accordingly, be less. Consequently, we do not consider residence 43 miles from this plant to be adequate for standing.
Hoston Edison Company (Pilgrim Nuclear Power Station), LBP-85-24, 22 NRC 97, 99 (1985), aff'd on other arounds, ALAB-816, 22 NRC 461 (1985). Thus, the risk of harm or injury necessary to support a finding of standing is a function of the potential consequences associated with the new activity licensed by the amendment. The Board applied a two-tiered approach for determining standing to challenge a fuel pool amendment: Is there an accident scenario involving the fuel pool that could affect the petitioner? If so, would the proposed amendment arguably increase the risk to the petitioner? Under this approach, if either answer were in the negative, the petitioner lacks sufficient interest in the proceeding to confer standing.
In the Perry amendment proceeding noted above, the Licensing Board similarly denied a petition to intervene because "the
-instant licensing action has no effect on any of the petitioner's asserted interests in preserving her life, health, livelihood, property or the environment. . . . [I]njury to individuals living in reasonable proximity to a plant must be based on a showing of
'a clear potential for offsite consequences' resulting from the challenged action." Perry, LBP-92-4, slip op. at 15-16 (March 18, 1992) (citing St. Lucie, CLI-89-21, 30 NRC at 379.) The 9
petitioner in that case lived within 15 miles of the nuclear power plant.
C. Standina for Orcanizatiana An organization may establish standing to participate either aus an organization or as a representative of one or more members.
Houston Lichtina & Power Comoany (Allens Creek, Unit 1), ALAB-535, 9 NRC 377 (1979). ESA also Vermont Yankee Nuclear Power Corooration (Vermont Yankee Nuclear Power Station), LBP-87-7, 25 NRC 116, 118 (1987). In general, to establish organizational standing, the petitioner must demonstrate that the organization itself or its members will be injured, and that the injury is not a generalized grievance shared by all or a large class of citizens. Vermont Yankee at 118.
To establish standing as the representative of members who themselves have an interest in the proceeding, the petitioner must, among other things, identify the member (s) having the interest and must provide concrete evidence (such as an affidavit) that the member (s) wishes to be represented by the organization.
Idz Also, the organization must demonstrate that it has authorized a particular representative to represent the organization in the proceeding. Georaia Power Comoany (Vogtle Electric Generating Plant, Units 1 and 2), LBP-90-29, 3 2 NRC 8 9, 92 (1990).
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D. Requirements of 10 C.F.R. S 2.714 Rocardina Nontimely Petitions As noted above, the published notice and regulations are clear that a nontimely petition will not be entertained absent a determination that the request should be granted based on a balancing of the factors of 10 C.F.R. SS 2.714 (a) (1) (1)-(v) and 2.714(d). The factors of section 2.714(d) have been listed above.
The f actors of section 2.714 (a) (1) (1)-(v) ara: !
(1) Good cause, if any, for failuru to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
A late petition to intervene which does not even discuss these criteria must be denied. Duke Power Comoany (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-615, 12 NRC 350 (1980).
Good cause for lateness is the most important factor and, where good cause is lacking, a petition must make a compelling showing on the-other factors. Lona Island Lichtina comoany (Shoreham Nuclear Power Station, Unit 1) , ALAB-743, 18 NRC 387, 397-(1983)
(citing Detroit Edison comoany (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1765 (1982)). Moreover, a 11
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petitioner has a duty to confrent the five lateness factors in his or her petition; the petitioner cannot wait until the licensee or Staff raises lateness as grounds for denying the petition. E9.AtAD Edison comoany (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461, 460 (1985).
E. Petitioner Does Not Meet the Egauirements for standina to Interveng An application of the above-stated principles regarding interest to Petitioner's letter requesting a hearing and petitioning to intervene demonstrates that the request and petition should be denied. Petitioner has not demonstrated an interust in the proceeding sufficient to be granted intervenor status.
Petitioner does not set forth with particularity his interest in the proceeding, how that interest may be affected by the results of the proceeding, and the reasons why he should be permitted to intervene. Therefore, the Commission cannot affirmatively find such interest to exist. Moreover, such an interest may not, for the reasons discussed above, be inferred merely from the distance to Petitioner's residence from Unit 2, which is approximately 4.4 miles.5/
As shown by the Commission's precedents, mere proximity to Millstone Unit 2 is insufficient interest to confer standing.
First,-there is no causal nexus between any asserted injury and A/ This estimated distance is based on the address on Petitioner's letter.
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the license amendment at issue. Even though some postulated design basis fuel pool scenarios could expose a person over 4 miles from Unit 2 to radioactive releases from the fuel pool that could exceed 10 C.P.R. Part 20 limits for normal operations,Il Petitioner has not alleged that the instant amendment could increase the risk of injury from these postulated scenarios.
Petitioner has alleged in his letter that "a spent fuel pool accident resulting in the release of radioacti[vi]ty to the air" would contaminate his family's source of drinking water, "would make it difficult to find uncontaminated food or soil," and would affect the value of his. property. However, Petitioner has not shown a nexus between these alleged injuries and the instant amendment.
In its "no significant hazards consideration" determination, the NRC Staff concluded that the Technical Specification amendment in question would not result in (1) a reduction in the margin of safety, (2) the possibility of a new or different kind of accident or (3) a significant increase in the probability or consequences of an accident previously evaluated.Il This reflects that the amendment simply imposes additional restrictions on the use of the Unit 2 spent fuel pool. While this analysis in not binding on Petitioner, it puts in perspective his complete failure to assert 1/ Based on NNECO's calculations, the postulated fuel handling and cask drop accidents would be the most severe fuel pool accidents. _(See Unit 2 FSAR section 14.7.4.3.1 and Table 14.7.4=1.)
1/ SER at 5-6.
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any harm or injury which could result from the Technical Specification change-issued in the amendment. Thus, even though accident scenarios exist which could affect a resident at a distance of about 4 miles from Unit 2, Petitioner has alleged no way that the proposed license amendment increases his risk from such hypothetical accidents.
For the reason that' Petitioner's claim to standing derives solely from his proximity to Unit 2, and that the amendment in question does not change the risk to Petitioner from the operation of Millstone Unit 2 as already licensed, Petitioner does not have standing to intervene.
F. Petitioner Has Not Justified The Grantina of His Nontimely Petition May 28, 1992, is the date cited in the notico for a timely i
l request for a hearing and petition to intervene. 57 Fed. Reg.
17,934. To meet this date, Petitioner should have mailed his i
i l
request no later than May 28. Egg 10 C.F.R..S 2.701(c). In fact,
! Petitioner mailed his request on June 3, 1992, in which case the l
balancing test of 10 C.F.R. S 2.714 (a) (1) comes into play.
Petitioner has made no showing of good cause for failure to file on time, nor has Petitioner even discussed the five lateness factors. Therefore, Petitioner has not met the requirements of ,
the notice as set forth in 10 C.F.R. S 2.714 (a) (1) and the casa law discussed above, and should not be permitted to intervene.
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G. Petitioner Is Not Represented by an Oraanization i
In his letter, Petitioner states that he is a member of the Co-operative Citizen's Monitoring Network ("CCMN"), and that he has authorized the CCMN to represent him. However, CCNM has not requested a hearing nor has it petitioned to intervene. (M.E. 6 Marucci, coordinator for CCMN, requested a hearing and petitioned to intervene as an individual, not as a repres.intative of CCMN, by letter dated May 28, 1992.) Thus, although Petitioner's letter could be considered authorization for CCMN to represent him, it does not constitute a request for hearing and petition by CCMN as an organization. Therefore, Petitioner's request e. ! petition may not be considered a request for a hearing by CCMN.
H. The Commission Need Not Reach Petitioner's Recuest For An Environmental Assessment '
Petitioner's letter requests that "an environmental impact study be completed to examine the effects of high-level waste storage in the pools at Millstone." The NRC has already addressed -
this issue and has determined that, "[p]ursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared in connection with the issuance of the amendment." NNECO concurs with the NRC's determination. Inasmuch as no contentions have yet been filed (Eng 10 C. F.R 5 2 e 714 (b' NNECO reservos its argument on the point until an appropriate contention has been filed. Because Petitioner lacks standing and 15
-his petition'is late,_there will be no occasion for filing of contentions,-therefore, the Commission need_not address this
- issue.
IV. - CONCT,USION l l
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~l This license amendment merely increases restrictions on the I use-of the spent fuel pool;and--does not result in new accidents, increased risk to Petitioner or increased consequences of accidents. Bscause of'.-the restrictive nature of this amendment,
' l the risk to Petitioner from postulated design basis fw.1 pool accident scenarios will not be affected.
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Petitioner has not demonstrated sufficient interest to confer- .
standing to intervene as'a party, nor has Petitioner demonstrated that the CCMN,'of which he is a member, has requested a hearing or petitioned to intervene as an-organization.- Further, Petitioner's request is nontimely and no good cause for lateness has been
- given.- In fact, Petitioner.has not_ addressed, much less met, the
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Lfive factors-for a late petition. Therefore, Petitioner's request for a hearingLand--petition to intervene should be denied.
NORTHEAST NUCLEAR ENERGY CO. .
. bli N cholas S. R g ds WINSTON~& STRAWN, June.18, 1992 ATTORNEYS FOR NORTHEAST NUCLEAR
' ENERGY COMPANY 16 c
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- wEL UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE NUCLEAR REGUIATORY COMMISSION i n n ' '_ ,
'In the Matter of ' '" !
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NORTHEAST NUCLEAR ENERGY CO. Docket No. 50-336 (Millstone Nuclear Power Station, Unit No. 2)
C,',3TIFICATE OF_ SERVICE I hereby certify that copies of " Northeast Nuclear Energy Company Answer to Request for Hearing and Petition to Intervene by M.J. Pray," dated June 18, 1992, have been served on this 18th day of June, 1992, as follows:
Secretary of the Commission By first class mail U.S. Nuclear Regulatory Commission Original plus 2 copies Washington, D.C. 20555 Attention: Chief, Docketing and Service Section B. Paul Cotter, Jr. By first clast mail Chief Adninistrative Judge 1 copy Atomic Safety and Licensing Board Panel
-U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of the General Counsel By first class mail U.S. Nuclear Regulatory Commission 1 copy Washington, D.C. 20555 Richard M. Kacich By first class nail Northeast Utilities 1 copy P.O._ Box 270 Hartford, Connecticut 06101 Michael J. Pray By first class mail 87 Blinman Street 1 copy New London, CT 06320
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l Gerald Garfield, Esq. By first class mail 1
Day, Berry & Howard- I copy City Place Hartford, CT 06103-3499 2
NORTHEAST NUCLEAR ENERGY CO.
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i WINSTON & STRAWN, June 18, 1992 ATTORNEYS FOR NORTHEAST NUCLEAR ENERGY CO.
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