ML20153F387
| ML20153F387 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 09/25/1998 |
| From: | Repka D NORTHEAST UTILITIES, WINSTON & STRAWN |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#398-19568 LA-2, NUDOCS 9809290095 | |
| Download: ML20153F387 (13) | |
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00CKETED USHRC i September 25,1998 !
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% SEP 28 A7 :54 l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFRCE wJ' .By ,
RUL&Fu'* '.tsD
. i ADJUD D i~N MFF l
. BFFORF THF COMMISSsON In the Matter of )
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Northeast Nuclear Energy Company ) Docket No. 50-423-LA-2
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(Millstone Nuclear Power Station, )
Unit No. 3) )
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NORTHEAST NUCLEAR ENERGY COMPANi"S BRIFF IN OPPOSITION TO APPFAL RF STANDING I. INTRODU'l(ION By Notice of Appeal dated September 11,1996, ibe Litizens Regulatory Commission
(" CRC") appealed the Memorandum and Order (Resolving Standing Issues), LBP-98-22, of the
- Atomic Safety and Licensing Board (" Licensing Board") of September 2,1998. Pursuant to 10 C.F.R. { 2.714(a), Northeast Nuclear Energy Company ("NNECO") herein responds in opposition to the appeal. The Licensing Board correctly ruled that CRC tiid not meet the requirements of 10 C.F.R. { 2.714(a)(2) and did not demonstrate a concrete harm traceable to the license amendment that is the subject of this proceeding. The Licensing Board correctly denied CRC's petition.
9809290095 980925 f PDR ADOCK 050004231 0 PDR A. -1
t II. BACKGROUND A. F acts This proceeding relates to NNECO's License Amendment Request of April 1,1998 i
. for Millstone Unit 3. The relevant facts regarding the License Amendment Request at issue are recited in the Licensing Board's Memorandum and Order:
. . . the Millstone containment substructure is encased within a waterproof rubber membrane that is connected to sumps located in the building housing the Engineered Safety Features ("ESF"). The original plant design relied upon the waterproof membrane to ,
ensure that groundwater inleakage was minimal and would not impact safety-related structures and components. Millstone, therefore, had only nonsafety-related sump pumps to pump groundwater from the sumps in the ESF building. As nonsafety-related equipment, the sump pumps were not powered from the emergency busses and were not accessible to plant personnel during a design basis loss of coolant accident. Thus, the pumps could not be assumed to be available for mitigating such a design basis accident. l According to the amendment application, a recent restart review revealed that the waterproof membrane has degraded allowing groundwater inleakage. The :
leakage has the potential to flood the ESF building sump,if the existing nonsafety-related sump pumps fail to operate. Further, if the sumps are not pumped out, the groundwater leakage eventually could affect '
both trains _ of the (Recirculation Spray System
("RSS")]. In' a filing providing supplemental '
information to the amendment application,' the
' Applicant indicates that RSS pump operability could be affected in 138 days from ESF building sump i
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overflow. Because the existing nonsafety-related sump pumps cannot be credited to operate during accident and' post-accident conditions, the Applicant has installed. two independent, safety-related, air driven sump pumps in the ESF building to eliminate the potential for groundwater inleakage that could affect the RSS pumps. Each air driven motor pump is 2-y ymi y - ng --
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powered by a portable nonsafety-related air compressor using permanent connections located outside the ESF building so the connections are accessible during post accident conditions. The compressors are housed in designmd locations, maintained and periodically tested to ensure their availability, and will be connected subsequent to an accident when sump pump operation is required. The l current license amendment seeks to revise the l Millstone Unit 3 licensing basis to add to the existing sump pump system this new sump pump subsystem in i the Final Safety Analysis Report. l l
LBP-98-22, slip op. at 2-4.
B. Proceediny Relow CRC filed its first request for hearing and petition to intervene with respect to this License Amendment Request on May 21,1998. At the time, the Commission's requirements with respect to intervention petitions were abundantly available and clear to the petitioner -- including in 10 C.F.R. 2.714(a)(2) and in the April 22,1998 Federal Register Notice offering an opportunity for hearing on NNECO's application." CRC would need to:
.. set forth with particularity the interest of the petitioner in the proceeding, how that interest may be affected by the results oftheproceeding, 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 rrr'ter of the proceeding as to which petitioner wishes to intervene.
10 C.F.R. { 2.714(a)(2)(emphasis added).
CRC, in basing its organizational standing on the standing ofits members, would need in its showing to establish for one ofits members:
With respect to the h.tter, the instructions regarding intervention petitions were published at 63 Fed. Reg.19964, col. 2; the application itself was noticed at 63 Fed. Reg.19974.
. . . a concrete and particularized injury that is fairly traceable to the challenged action and likely to be redressed by a favorable decision. See generally Lujan v. Defenders of Wildlife,112 S. Ct. 2130,2136 (1992); Perry,38 NRC ct 92. Injury may be actual or threatened. Kelly v. Selin,42 F.3d 1501,1508 (6th Cir.1995); Wilderness Soc'y v. Griles,824 F.2d 4,11 (D.C. Cir.1907). . .
Georgia Instimte of Technology (Georgia Tech Research Reactor), CLI-95-12,42 NRC 111,115 (1995).
CRC's first petition was unequivocally deficient. The petition was a " cut and paste" version of an earlier petition addressing a separate and unrelated license amendment application.#
CRC did not assert, much less demon.;trate, any particularized harm that could result from the new safety-related sump pumps, or even from the groundwater inleakage those sump pumps address.
CRC's petition instead was a generalized assault on NNECO's management skills and motives, engineering competence, other recent RSS modifications and operating experience as described in a press account,F the " employee environment" at Millstone Station, and the compensation and alleged motives ofNNECO's management. From the filing it was clear to NNECO that CRC's issue was not the sump pump approval, but rather restart of Millstone Unit 3 (which in April 1998, was approaching and was a matter before the Commission). NNECO responded to the intervention CRC's earlier request for hearing and petition for leave to intervene was filed on April 23, 1998. That petition related to a proposed change in the licensing basis for the Recirculation Spray System. NNECO's amendment application on that matter was fiied March 3,1998.
That proposed amendment would update the licensing basis to reflect a 1986 change in the operation of the RSS, eliminating direct injection from the RSS pumps to the Reactor Coolant System during recirculation phases ofpost-accident operation. That matter remains pending before an Atomic Safety and Licensing Board.
The modifications and experience obliquely described by CRC in the petitior, did not relate to either the sump pump issue or the 1986 licensing basis change that is the subject of the separate amendment application described in footnote 2.
1 l petition on June 5,1998, pointing out the defects in the petition quite plainly, and requesting that the petition be denied.# The NRC Staff did the same on June 10,1998.*
On June 16,1998, the Licensing Board issued a Memorandum and Order allowing CRC an opportunity to amend its intervention petition -- both with respect to the standing inadequacies and to propose contentions. In effect, CRC now had until July 7,1998, to adequately demonstrate standing and meet requirements clearly described in the April 22,1998 Federal Register Notice.
CRC filed a supplement to its intervention petition on July 7,1998, and this supplemental petition was still deficient. CRC provided what was purported to be an " affidavit addressed to the standing of CRC" and asserted the importance of the RSS, but in fact CRC did not otherwise attempt to address either the requirements of 10 C.F.R. Q 2.714(a)(2) or the sump pump subsystem. The affidavit was from a member of CRC who lives near Millstone Station. The affidavit - much like the original petition -- was a boilerplate affidavit borrowed from a filing in the separate license amendment matter related to operation of the RSS. CRC, for standing, relied upon the standing ofits member. In the affidavit, the member in turn relied upon no more than proximity of residence to Millstone, and the potential for offsite consequences due to "an accident at Millstone." There was no nexus drawn to NNECO's License Amendment Request.
" Northeast Nuclear Energy Company's Answer to Request for Hearing and Petition to Intervene: Sump Pump Subsystem Approval," June 5,1998.
"NRC Staff's Response to Citizens Regulatory Commission's Petition to Intervene," June 10,1998.
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1 NNECO again responded to this supplemental petition on July 21,1998,# pointing i out CRC's failure to meet the futidamental NRC pleading requirements related to standing. The i
NRC Staff did likewise on the same date." As ultimately observed by the Licensing Board in its Memorandum and Order, neither CRC nor the affiant addressed the sump pump subsystem at issue in this proceeding, alleged how the sump pump subsystem (credited for post-accident operation) could lead to an accident at Millstone, or how "the installation of the new safety-related sump pump I subsystem fails to address or improperly addresses the problem of groundwater inleakage and how I
that deficiency will lead to offsite consequences." LBP-98-22, slip op. at 11. l CRC now claims error and, on appeal, attempts to argue that it has standing on this matter. CRC's attempt is both too late and too little. l Ill. ARGUMENT l
A. CRC Has Failed in Two Previous Opportunities To Establish Standing I As recited above, CRC has had two opportunities to establish standing in this case -- i to allege, with particularity, how offsite consequences could result from the sump pump subsystem at issue in this amendment proceeding.
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In two opportunities, CRC has failed. CRC filed a boilerplate petition in the first l 1
instance, and a boilerplate affidavit in the second. Lacking any focus whatsoever on the issues i
germane to the sump pump subsystem amendment, CRC's filings were inadequate. The Licensing
" Northeast Nuclear Energy apany's Supplemental Answer Regarding Standi' <, Issues (Sump Pump Subsystem i r . al)," July 21,1998.
"NRC Staff's Response to CRC Supplement to Intervention Petition Addressing Standing,"
July 21,1998.
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i Board correctly ruled on this basis, and there is no reason for the Commission to consider the matter any further.-
These two CRC filings, in their most favorable light, seek standing based upon no
- more than the nearby residence ofone member of CRC. However, the Commission has previously held that in a license amendment case nearby residence alone is insufficient to establish standing; I petitioners must allege a clear potential for offsite consequences resulting from the amendment. S.ee Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21,30 NRC 325,
- 329-30 (1989): cf Sequoyah Fuels Corn. (Gore, Oklahoma Site), CLI-94-12,40 NRC 64,72-74 (1994) (focusing on whether alleged injury is " concrete and particularized" and whether there is a
" realistic threat" of direct injury). CRC merely repeated verbiage from its earlier petition and affidavit in anotherproceeding aimed generally at Millstone management and the RSS. CRC never ;
plausibly articulated how the sump pump subsystem would cause offsite harm, or even how it would be inadequate to redress the problem that gave rise to the design change at issue.
. With two bites at the proverbial apple already eaten, an appeal is not the time for CRC to attempt to establish its standing. Both well-established law and good policy dictate that this matter end here. See, eg, Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC , slip op. at 2 (July 28,1998) ("The Commission enphasizes its expectation that the
[ licensing] boards will enforce adherence to the hearing procedures set forth in the Commission's i-Rules of Practice in 10 C.F.R. Part 2 . .").
L B. Collateral Estoppel and Res .ludicata Have No ReleYaDee To Standing In This Case
- In the separate proceeding mentioned above involving a change to operation of the RSS during the recirculation phases of post-accident operation, the presiding Licensing Board has found that CRC has standing to intervene LBP-98-20,48 NRC (August 25,1998). On appeal
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4 with respect to the present sump pump matter, CRC argues that the Licensing Board is bound by the doctrines of collateral estoppel and resjudicata, and as such must find that CRC has standing to intervene.
This theory does not hold. NNECO has applied for two distinctly different license amendments. While both mvolve in some way the RSS, the two amendments involve two very different design changes. There were two different FederalRegister Notices offering two different
' opportunities for hearing, and there are now two different licensing proceedings. CRC's obligation L with respect to standing was to . 'w how its interests might be affected in each :ase, how it could suffer an offsite harm traceable to the particular amendment in each case, and how that harm could be redressed in the particular proceeding. Quivira Mining Co. (Ambrosia Lake Facility, Grants, New l
-Mexico), CLI-98-11,48 NRC __(slip op at 5)(July 17,1998).
E Neither collateral estoppel nor resjudicata would apply under these circumst'nces.
For resjudicata to apply, there must be, in two proceedings, identical ennees ornetion; for colla.
estoppel to apply, there must be, in two proceedings, identical issues. See, g, Parkinne' Hosierv t
Co. v Shore, 439 U.S. 322, 326 at 5 (1979).5' With respect to NNECO's two amendment
? applications, there is not an identical cause of action - the license amendments are clearly different and the remedies requested by CRC are accordingly different. And, in the two applications, there is not an identical issue with respect to standing -- rather, the facts differ and CRC must show in each
- case:a particularized harm from the specific amendment proposed by NNECO in that case.
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8' See also Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP-79-27, 10 NRC 563,565-866 (1979).
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Boilerplate recitations by CRC do not satisfy the standing requirements precisely because the facts of the approvals are so very different.*
C. CRC's Allegations on Appeal Are Still Off Point and Unsatisfactorv CRC, in its appeal brief, argues that the Licensing Board's decision is " arbitrary," that the license amendment (presumably, CRC means the safety-related sump pump subsystem) is "a band-aid approach to a serious safety issue," and that CRC's members'must have standing because they live at " ground zero." By this argument, CRC essentially shifts its argument from the previous focus on NNECO's management and competence, and the history of the RSS generally, to groundwater inleakage and the membrane encasing the containment substructure. However, even if one were willing to view this as a very tardy attempt to show CRC's standing, it is still inadequate.
In the end, CRC is still relying upon nearby residence of one member to establish its organizational standing. Historically, the Commission has been willing to presume the potential for injury to nearby residents in cases involving the construction or operation of the reactor itself, because there is a clear potential for offsite consequences. But the Commission has contrasted cases that involve minor license amendments such as the present one: " Absent situations involving such obvious potential for offsite consequences, apetitioner must allege some specific injury infact that will result from the action taken . . . ." St. Lucie, CLI-89-21,30 NRC at 329-30 (emphasis added).
l In light of this precedent, the Licensing Board correctly found that:
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- At a bare minimum, CRC must show how the
- installation of the new safety-related sump pump subsystem fails to address or improperly addresses the problem of groundwater inleakage and how that For a concise description of the approval involved in the other license amendment proceeding, see " Northeast Nuclear Energy Company's Answer to Request for Hearing and Petition to Intervene," filed on Docket 50-423-LA, on May 22,1998, at 2-3.
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1 deficiency will lead to offsite consequences. CRC's intervention filings make no such showing. '
LBP-98-22, slip op. at 11.
l CRC's focus iri the appeal brief on groundwater mieakage and the degraded l membrane may state a problem, but CRC still does not establish any potential for offsite injury traceable to either, or to the amendment at issue. NNECO has acknowledged that the membrane is degraded, that there is groundwater inleakage, and that unabated groundwater inleakage .may eventually affect the RSS. However, the safety related sump pump subsystem at issue is designed precisely to address andprevent an inoperable RSS during long-term post-accident operation."
Likewise, the licensing basis document change included with the amendment application is intended to show the inleakage issue, the volume of water involved, and how it is addressed. The mere fact of groundwater inleakage dees not equate to a " realistic threat" of offr,ite injury traceable to this amendment or redressable in this proceeding.* It is still incumbent upon CRC to demonstrate, with particularity, how offsite consequences could result. CRC must show a plausible chain of events from the inleakage problems, through the safety-related sump pumps, to poter.tial offsite consequences. CRC did not do so in its pleadings below, and has not done so on appeal.
8 CRC, in passing, calls the sump pump subsystem a " band aid" on the problem of groundwater inleakage. This is, however, never explamed. No problem allegedly created by the groundwater other than that addressed by the sump pump subsystem is ever described.
8 As the Licensing Board correctly noted, if one takes no credit for either the pre-existing non-safety related sump pumps or the new safety-related sump pumps, RSS pump operability would not be affected until 138 days from ESF building sump ovt.rflow (which would hypothetically occur in the hours following the accident). Moreover, the safety-related sump pump subsystem itselfincludes two pumps, either of which is capable of protecting both RSS pumps. Moreover, the air compressors that support the sump pump subsystem are accessible and can be serviced or replaced to assure long term operation.
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IV. CONCLUSION CRC's appeal should be denied. The Commission in its recent policy statement made its expectations clear. The Licensing Board considered CRC's serial filings, considered the relevant .I information, and did not err. The Licensing Board correctly concluded that CRC did not satisfy the requirements of 10 C.F.R. @ 2.714(a)(2), and that CRC lacks sufficient interest to intervene in this
- license amendment proceeding.
Respectfully submitted,
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David A. Repka . \
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WINSTON & STRAWN -4 1400 L Street, N.W.
Washington, D.C. 20005-3502 (202) 371-5726 Lillian M. Cuoco NORTHEAST UTILITIES SERVICE COMPANY 107 Selden Street i Berlin, Connecticut 06037 ATTORNEYS FOR NORTHEAST NUCLEAR ENERGY COMPANY Dated in Washington, D.C.
this 25th day of September,1998
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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION D0 D g
BEFORE THE COMMISSION '98 SEP 28 A7 :54 In the Matter of OFFK't .> *- m
) RULEw e D i6 'y
) ADJUDD.f mJ Si,N:F Northeast Nuclear Energy Company ) Docket No. 50-423-LA-2
)
(Millstone Nuclear Power Station, )
Unit No. 3) ) i CERTIFICATE OF SERylCE '
1 I hereby certify that copies of" NORTHEAST NUCLEAR ENERGY COMPANY'S l
BRIEF IN OPPOSITION TO APPEAL RE: STANDING ISSUES," in the above-captioned ;
proceeding, have been served on the following by deposit in the United States mail, first class, or I as indicated by an asterisk (*) by hand delivery service, or as marked by two asterisks (**), by ovemight delivery, this 25th day of September,1998. For those parties marked by a diamond (O), l a courtesy copy has also been provided this same day by e-mail. l Chairman Shirley Ann Jackson
- Thomas S. Moore 0 U.S. Nuclear Regulatory Commission Chairman ;
One White Flint North Atomic Safety and Licensing Board i 11555 Rockville P;ke U.S. Nuclear Regulatory Commission I Rockville, Maryland 20852-2738 Washington, DC 20555-0001 Commissioner Nils J. Diaz* Dr. Charles N. Kelbero U.S. Nuclear Regulatory Commission Administrative Judge On White Flint North Atomic Safety and Licensing Board 1IL.>5 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, Maryland 20852-2738 Washington, DC 20555 0001 Commissioner Edward McGaffigan, Jr.* Dr. Richard F. Cole 0 U.S. Nuclear Regulatory Commission Administrative Judge One White Flint North ~ Atomic Safety and Licensing Bond
- 11555 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, Maryland 20852-2738 Washington, DC 20555-0001 :
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- 1. .l l
, . 1 Nancy Burton, Esq.*
- Office of the Secretary
- 147 Cross Highway U.S. Nuclear Regulatory Commission Redding Ridge, CT 06876 l One White Flint North 11555 Rockville Pike i Rockville, Maryland 20852-2738 i
"~ (original + two copies)
Attn: Rulemaking and Adjudications Adjudicatory File _
Office ofCommission Appellate Adjudication *
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S; Nuclear Regulatory Commission One White Flint North
- Washington, DC 20555 11555 Rockville Pike Rockville, Maryland 20852-2738 Richard G. Bachmann, Esq.*0 ~ !
Office of the General Counsel U.S Nuclear Regulatory Commission One Whi e Flint North 11555 Rockville Pike Rockville, Maryland 20852-2738
- h. k Sk David A. Repka i Winston & Strawn Counsel for Northeast Nuclear Energy Company 4
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