ML20101G286
| ML20101G286 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 06/11/1992 |
| From: | Reynolds N NORTHEAST NUCLEAR ENERGY CO. |
| To: | |
| Shared Package | |
| ML20101G275 | List: |
| References | |
| OLA, NUDOCS 9206250393 | |
| Download: ML20101G286 (12) | |
Text
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P UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i-][
BEFORE TliE NUCLEAR REGULATORY COMMISSIOl{ 92 JLR115 M1 :08 ,
In the Hatter of
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NORTHEAS'1 NUCLEAR ENERGY CO. Docket No. 50-33'6 (Hi11 stone Nuclear Power Station, Unit No. 2) .
LICENSEE NORTHEAST NUCLEAR ENERGY COMPANY'S REPLY TO REQUESTS FOR HEARING AND PETITIONS TO INTERVENE BY M.E. MARUCCI AND EARTHVISION. INC.
In accordance with 10 C.F.R. 5 2.714 (c), Northeast Nuc1 car Energy company ("NNECO"), hereby files its reply to two requests for a hearing and petitions to intervene subritted in response to an Opportunity for Hearir.g published in the Federal Register on April 28, 1992 (57 Ped. Reg. 17,934) regarding a proposed license amendment. Each of the two petitioners filed petitions requeuting a hearing; however, neither of the petitioners meets the standards set forth in Che notice or the requirements of 10 C.F.R.-S 2.714. Therefore, NNECO requests that the requests for a hearing and petitions to intervene be denied.
II. BACKGROUND On April 16, 1992, NNECO proposed a Technical Specification revision to_ govern-its use of the spent fuel pool at Millstone Unit No. 2 (" Unit 2"). On April 28, 1992, the Staff proposed to 3
determine that the amendment request involves no significant l 9206250393 920610 i PDR ADOCK 05000336 i o PDR
a hazards consideration, and (consistent with 10 C.F.R. SS 2.105 and 50.91) pMblished a notice of Opportunity for Hearing.1/ The notice required that written requests for hearing and petitions for leave to intervene in accordance with 10 C.F.R. 5 2.714 be filed by May 28, 1992.
In response to the notice, two persons filed individual reques*,s for a hearing and petitions to intervene with the Commisolon M.E. Marucci and Earthvisien, Inc. (by P.R.
Howicki). On June 4, 1992, the Staff made a final no significant hazards consideration finding and issued the requested Technical Specification amendment in accordance with 10 C.F.R.
S 50.91(a) (4) .
NucCO is filing this Response to the above-noted requests for hearing and petitions 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. Both petitioners served their documents on NNECO by U.S. Mall postmarked May-29, 1992. Service by mail automatically provides NNECO with an additional five days to respond under 10 C.F.R. 5 2.710. Thus, a timely response would be due June 15, 1992 (which accounts for the due date falling on a Saturday).
1/ " Northeast Nuclear Energy Co.; consideration of Issuance of Amendment to Facility Operating License, Propoled No Significant Hazards Consideration Determinatir , and t
opportunity for Hearing," 57 Fed. Reg. 17,934 (1992).
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r III. DISCUSSION l
A. The Requirementa of 10 C.F.R. 4 2.714 The notice of opportunity for hearing requires that "any person whose interest may be affected by this proceeding and who wishes to participato as a party in the proceeding 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. 5 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 r
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- f actors 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 s.,he 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 proconding.
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(3) The possible effect of any order that may be entered in the proceeding on the petitioner's interest.
These factors relate to a petitionor's standing to intervene. Judicial concepts of standing will be applied to datormine whether a petitioner has sufficient interest in a proceeding to be entitled to intervene as a matter of right.
"Those 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." Metropolitan Edison comoany. et al. (Three Mile Island Nuclear Station, Unit No. 1), CLI-83-25, 18 NRC 327, 332 (1983). According to the Licensing Board in The Cleveland Electric Illuminatina comoany (Perry Nuclear Power Plant, Unit No. 1), LDP-92-f. slip op. at 12 (March 18, 1992):
(T]he asppyksd injury must be " distinct and
- palpablenm and "particular (and) concrete,"lU as opposed to bein hypothetical,'"g "$orconjectural " abstract."
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Additionally, there must be a causal nexus between the asserted injury and the challenged action.
30 Warth v. Seldin, 422 U.S. 490, 501 (1975).
31 United States v. .Righardson, 418 U.S. 166, 177 32 (1974).
Los Ancelga v. Lvons, 461 U.S. 95, 102 (1983).
33 Simon v. Eastern Kv. Welfaro Richts oro., 426 U.S.
[26) at 40.
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B. Qgrarachic Proximity of Residence as a Bas 1D for Standing This proceeding is a license amendment procarding within the meaning of Atomic Energy Act S 189.a.(1) (42 U.S.C. S 2239).
While residence within fifty miles of a power reactor may support a finding of standing in a full-blown operating license proconding,U there is precedent in license amendment proceedings, where the effects of a hypothetical accident arising from the subject matter of the amendment are relatively small, for application of a shorter geographical distance for purposes of determining standing.
The Commission does not allow the (fifty mile) t presumption to be applied to all license amendments.
It only does so in those instancos involving an obvious potential for offsite consequences.
Lona Island Lichtina Comoany (Shoreham Nuclear Power Station, Unit 1), LDP-91-7, 33 NRC 179, 186 (1991).
Thus, in opo case involving a license amendment to change the permissible maximum K of the fuel pool from 0.90 to 0.95, ett the Licensing Board hold thatt this case concerns a request for a license amendment and is not controlled by the same standing considerations 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.
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2/ Philadelchia Electric Comoany (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1433-35 (1982).
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4 Boston Edison Comoany (pilgrim Nuclear Power Station), LDP 24, 22 NRC 97, 99 (1985), a f f 'd on _ other argunds, ALAB-816, 22 NRC 461 (1985). Thus, the geographic distance to support a finding of standing is a function of the potential consequences associated with the matter in issue.
The Board in Pilaria did not find it necessary to comment on how close a residence would need to be to the licensco's facility to confer standing in that matter. However, the Board did note that it was aware of no see Tric ' '/4 wculd result in exposure of a resident forty-three miles +{}rAC)* La oa-liction or radioactive releases from the fuel pool. Morevver, the Board noted that, if 1
such an accident scenario did exis., the proposed license amendment would not increase the risk to the petitioner from that accident. Thus, the Board applied a two-tiered approach to establishing a reasonable distance for determinina standing regarding 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 does not have sufficient interest in the proceeding to confer standing.
In another case, involving a request for hearing for a purely administrative licensing amendment, the Licensing Board denied a petition to intervene because "the instant licensing action has no effect on any of the petitioner's asserted 6
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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 offsito consequences' resulting from the challenged action." Supra, LBP-92-4, slip op. at 15-16 (March 18, 1992) (citing Florida Power & Licht Co. (St. Lucio Nuclear power Plant, Units 1 and 2), CLI-89-21, 30 HRC 325, 329 (1989).) !
The petitioner in this case lived within 15 miles of the nuclear power plant. Thn Commission in E.t. Lucie further required that
"(a)bsent situations involving such obvious potential for offsito consequences, a petitioner must allege some specific " injury in fact" that will result from the action taken . . . .
30 NRC at 329-30.
C. Standino for oroanizations An organization "could establish standing to participate either as an organization or as a representative of one or more members." Vermont Yankee Nuc12Ar 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 will be injured, and that the injury is not a generalized grievance shared by all or a large class of citizens. Ibid.
To establish standing as the representative of members who themselves have an interest in the proceeding, "(rjesidence of at 7
least one member in close proximity to a facility, standing alone, would establish such an interest." Ibid. However, the petitioner must 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. Ibid.
Also, the organization must demonstrate that it has authorized a particular representative to represent the organization in the proceeding. Georcia Power comoany (Vogtle Electric Gonorating Plants, Unita 1 and 2), LDP-90-29, 32 NRC 89, 92 (1990).
D. H.E. Marucci Does Not Moot the Reauirements for Standina to Intervene An application of the above-stated principles to M.E.
Marucci's letter serving as a request for a hearing and petition to intervene demonstrates that the request and petition should be denied. M.E. Marucci has not demonstrated an interest in the proceeding sufficient to be granted intervenor status.
M.E. Marucci's petition does not set forth with particularity her interest in the proceeding, how that interest may be affected by the results of the proceeding, and the reasons why she should be permitted to intervene. Therefore, M.E.
Marucci's interest and the nature of hos right to be made a party to the proceeding must be based on the distance of her residence from Unit 2 (approximately forty miles).1/
2/ Based on the address on M.E. Marucci's petition, NNECO estimates that she resides slightly more than forty, but less than forty-one, miles from Unit 2.
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NNECO maintains that M.E. Marucci resides too far away from Unit 2 to support a finding of standing. First, there is no causal nexus between any asserted injury and the license I
amendment at issue. No postulated design basis scenario would j
expose a person over forty miles from Unit 2 to radiation or radioactive releases from the fuel pool that would excoed the variability of background radiation.1/ Moreover, 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.1/ This reflects the fact that the 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.)
The total dose for these accidents is less than 1 millirem at 40 miles, which is less than the variability of background radiation and less than plausible normal operating release dose consequences allowed at the site boundary under 10 C.F.R. Part 20 and 10 C.F.R. Part 50 Appendix I. This dose was calculated by multiplying the Unit 2 FSAR accident doses by a ratio of X/Q for the FSAR accident dose (calculated by Regulatory Guide 1.145 methods at distances close to the plant) to a X/Q for the worst case meteorology with G stability (calculated using Regulatory Guide 1.111 methods at a distance of 40 miles). See the enclosed affidavit in support of these conclusions.
1/ "Safi'_y 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, at 5-6.
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amendment simply imposes additional restrictions on the use of the Unit 2 fuel pool. Thus, even if an accident scenario existed prior to the amendment which could affect a resident at a distance of 40 miles, the proposed license amendment would not l increase the risk to the resident from such an accident.
For the reasons that no design basis fuel pool accident scenario could affect M.E. Marucci at a distance forty miles from Unit 2, and that the amendment in question would not have an effect on the risk to M.E. Marucci from any accident, M.E.
Marucci does not have standing to intervene.
1 EARTHVISION, Inc., Does Not Meet the l
E.
Reouirements for Standina to Intervene An application of the above-stated principles to EARTHVISION's letter request for a hearing and petition to intervene demonstrates that the request and petition should be denied. EARTHVISION, as represented by P.R. Nowicki, has not demonstrated an interest in the proceeding sufficient to be granted intervenor status.
EARTHVISION's petition does not set forth with particularity its interest in the proceeding, how that interest may be affected by the results of the proceeding, and the reasons why EARTHVISION should be permitted to intervene. The petition merely requests a hearing as being "in the best interest of both Northeast Utilities gg Well gg the welfare of the citizens in this area. . . . "
Therefore, EARTHVISION's interest and the nature of 10
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its right to be made a party to the proceeding is based on the 6
distance of P.R. Nowicki's residence from Unit 2 (approximately forty miles).U NNEco maintains that P.R. Novicki resides too far away from Unit 2 to support a finding of standing. First, there is no causal nexus between any asserted injury and the license amendment at issue. As stated above, no postulated design basis scenario would expose a person over 40 miles distant from Unit 2 to radiation or radioactive releases from the spent fuel pool (
that would exceed the variability of background radiation. Also, as-stated-above, the NRC Staff's no significant hazards-consideration analysis for the instant amendment concludes that the amendment would not result in a reduced margin of safety, the .
possibility of a new or different accident or a significant increase in the probability or consequences of a previously evaluated accident. Thus, the proposed license amendment would not increase the risk to'P.R. Novicki from a fuel pool accident.
For these reasons, EARTHVISION does not have sufficient interest for standing to intervene.
- 1/ ' . Based on.the address on P.R. Nowicki's petition, NNECO estimates that she resides slightly more than forty, but less than forty-one, miles from Unit 2.
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IV. CONCLUSION This license amendment merely increases restrict!:iss on the 1 i
use of the spent fuel pool and does not result in new accidents or significant increased risk or consequences of accidents. The petitioners reside at too great a distance from Unit 2 to be affected by this amendment.
Neither letter, viewed as a request for hearing and petition to intervene, indicates that either petitioner has sufficient interest in this license amendment proceeding to confer standing to intervene as a party. Therefore, both requests for a hearing and petitions to intervene should be denied.
I NORTHEA T 1 CLEAR ENERGY CO.
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Nicho1#sj .
Rejnolds WINSTON\1 STRA N, June 11, 1992 ATTORNEM' FO ORTHEAST NUCLEAR ENERGY COMP 12