ML20217N665
| ML20217N665 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 10/21/1999 |
| From: | Repka D NORTHEAST NUCLEAR ENERGY CO., WINSTON & STRAWN |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#499-20930 LA-3, NUDOCS 9910290102 | |
| Download: ML20217N665 (13) | |
Text
{{#Wiki_filter:y , ..z 00CKETED USMRC October 21,1999 99 OCT 28 P4 :58 UNITED STATES OF AMERICA I NUCLEAR REGULATORY COMMISSION HL ADJ: BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l In the Matter of: )
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r Company Northeast Nuclear Ene'gy ) Docket No. 50-423-{LA 3 l
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(Millstone Nuclear Power Station, ) 3 Unit No. 3) ) NORTHEAST NUCLEAR ENERGY COMPANY'S ; ANSWER TO REQUEST FOR A HEARING AND PETITION TO INTERVENE I I. INTRODUCTION In accordance with 10 C.F.R. 2.714(c), Northeast Nuclear Energy Company
- ("NNECO"), licensee in the above-captioned matter, hereby files its answer to the request for hearing and petition for leave to intervene (" Petition") filed on October 6,19W, by the Connecticut Coalition Against Millstone ("CCAM") and the Long Island Coalition Against Millstone (" CAM") (hereinafter, " Petitioners" refers to CCAM and CAM). The Petition l
responds to the Notice of Opportunity for Hearing published in the Federal Register on September 7,1999 (64 Fed. Reg. 48672) (" Notice") concerning NNECO's proposed amendment to.the Millstone Unit 3 Facility Operating License No. NPF-49. As discussed below, the Petitioners have not satisfied the Commission's requirements for standing to intervene on this matter. Therefore, under 10 C.F.R. Q 2.714, the Petition should be denied. 9910290102 991C21 PDR ADOCK 05000423 Q PDR
Dj I l i II. BACKGROUND
' 'EA. The Anproval at Issue The license amendment request ("LAR") at issue, first submitted to the NRC on March 13,1999,' concerns a proposed increase in the capacity of the Unit 3 spent fuel storage i
pool ("SFSP"). Following the discharge of spent fuel assemblies into the SFSP during the next ; l
- refueling outage, currently _ scheduled for the first quarter of 2001, Unit 3 will no longer have the capability to perform a full core off-load. NNECO proposes additional high-density fuel storage racks., which will increase the SFSP. capacity.from 756 assemblies to 1,860 assemblies (an I
. increase of 1,104).2 - The proposed amendment would also change several Technical j Specifications ("TS") and TS Bases to support the installation of the new fuel storage racks and
= to specify administrative controls for storage of spent fuel in the SFSP.
. B. The NRC's Standing Reauirements The Petition must meet the NRC's well-established standing requirements. Under 10 C.F.R. Q 2.714(a)(2) (emphasis added) the Petition must:
set forth with particularity the interest of the petitioner in the proceeding, 1
.'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 t, the factors in paragraph (d)(1) of this section, j i
The Unit 3 SFSP currently contains 497 ' spent fuel assemblies; a full core contains 193 ; fuel assemblies. Therefore, assuming 84 spent fuel assemblies are discharged during the next refueling outage (im 84 spent fuel assemblies will remain in the SFSP following completion of the refueling), full core off-load capability would be lost for the following j operating cycle. The Notice and Petition incorrectly state that Unit 3 lost the capability for full core off-load following the last refueling outage, which ended in June 1999. 2
- The Unit 3 SFSP currently contains 21 spent fuel racks with a total storage capacity of 756 assemblies. The I AR proposes' to immediately add 14 high-density racks with a capacity of 1,023 assemblies. ' A'15th high-density rack, with a capacity of 81 assemblies, is analyzed as part of the LAR safety evaluation, but would not be immediately installed.
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y 7 ] i 1 and the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene. The Commission has ' determined that to satisfy the standing requirements of 10 C.F.R. Q 2.714, a petitioner must demonstrate that:
- 1. it has suffered a distinct and palpable harm that constitutes injury-in-fact within the zone ofinterest> arguably protected by the governing statute;
- 2. the injury can be fairly trt..d to the challenged action; and
- 3. the injury is likely to be redressed by a favorable decision. !
Yankee Atomic Electric Co. (Yankee Nuclear Power Statien), CLI-96-1,43 NRC 1,6 (1996). Seg' generally Georgia Institute of Technology (Georgia Tech Research Reactor), CLI-95-12,42 L NRC 111,115 (1995); Luian v. Defenders of Wildlife,112 S. Ct. 2130,2136 (1992); Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant), CLI-93-21,38 NRC 87,92. 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.1987). With regard to the standing of organizations that petition to intervene, such as CCAM and CAM, the Commission has held that the organization must demonstrate that the action will cause an injury-in-fact to either: (1) the organization's interests; or (2) the interests of its members. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-94-3,39 NRC
- 95,102 n.10 (1994). Where standing is based on an injury to the organization itself, the
- petitioner must demonstrate that its interests have been adversely affected, applying the same injury-in-fact standard as for an individual. Sacramento Municinal Utility District (Rancho Seco Nuclear Generating Station), LBP-92-23, 36 NRC 120,126 (1992). If standing is based on injury to an organization's members (so-called " representational standing"), the petitioner must
" identify at least one ofits members by name and address and demonstrate how that member m
may be affected ... and show (preferably by affidavit) that the group is authorized to request a hearing on behalf of that member." Northern States Power Co. (Independent Spent Fuel Storage Installation), LBD-96-22, 44 NRC 138,141 (1996). To derive standing from a member, the organization must demonstrate that the individual member has standing to participate, and has authorized the organization to represent his or her interests. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535,9 NRC 377,390-96 (1979). As will be discussed below, Petitioners have failed to meet the pleading requirements for an organizational petitioner.3 III. DISCUSSION A. Standing of the Organi7ations is Not Established The Petition is defective with respect to the standing of the two organizations. As recited in Yankee Atomic, there are two routes by which an organization can attempt to j demonstrate standing in an NRC hearing. First, it can assert injury to organizational interests and demonstrate tha these interests are protected by the Atomic Energy Act. Ess, eg, Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), ALAB-952,33 NRC l t 521,528-30(1991). Or, second, an organization can base standing on the interests ofindividuals that it represents. To derive standing from an individual, an organization must identify at least one member (by name and address) and provide some " concrete indication" that the member has ; i 3 ' It appears that the declaration of David A. Lochbaum, attached to the Petition, meets the limited requirement of 10 C.F.R. 2.714(a)(1) that a petition " set forth with particularity
... the specific aspect or aspects of the subject matter of the proceeding as to which i petitioner wishes to intervene." The declaration is not labeled as " proposed contentions" l and does not conform to the format for proposed contentions specified in 10 C.F.R.
} 2.714(b)(2). If either CCAM or CAM is found to have standing to intervene in this proceeding, NNECO would respond to any proposed contentions, on the issue of '
admissibility, pursuant to any schedule specified by the Licensing Board.
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authorized the organization to represent him or her in the proceeding. See, s,g., Vermont Yankee
. Nuclear Power Corn. (Vermont Yankee Nuclear Power Station), LBP-87-7,25 NRC 116,118 I (1987).? Here, Petitioners have not satisfied either approach.
First, Petitioners have not asserted any organizational interest at stake that would be threatened with injury by the approval at issue. Therefore, in this regard, the Petition is defective and'.does not demonstrate organizational standing. Second, Petitioners have not identified any member (by name and address) or provided a " concrete indication," by affidavit or any other means, that a member has authorized the organization to represent him or her in the I proceeding. CCAM claims that its " membership includes individuals and families, including families with young children, who'own property and reside in the immediate vicinity of the , Millstone Nuclear Power Generating Station in Waterford, Connecticut." Similarly, CAM claims that its " membership include < individuals and families, including families with small
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children, who own property and reside within the emergency evacuation zone of the Millstone Nuclear Pawer Generating Station." However, Petitioners have not identified any member of
. either organization or established that either organization is authorized to represent the interests of any such member.4
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In at least two previous cases involving Millstone Station, wherein petitioners were represented by the present Petitioners' counsel, affidavits were submitted to the licensing boards ' identifying. individual members of the organization and asserting that the organization was authorized to represent those members. Sec letter from Nancy Burton, Esq., to Office of the Secretary, U.S. Nuclear Regulatory Commission, forwarding affidavit of Joseph H. Besade (July 23,1998), In the Matter of Northeast Nuclear Energy Comnany (Millstone Nuclear Power Station,- Unit 3), ASLBP No. 98-743-03-LA (1998); and letter from Nancy Burton, Esq., to Office of the Secretary, U.S. Nuclear Regulatory Commission, forwarding affidavits of Susan Perry Luxton, Clarence O. Reynolds, and Joseph H. Besade (July 6,1998), In the Matter of Northeast Nuclear Energy Comnany (Millstone Nuclear Power Station, Unit 3), ASLBP No. 98-740-02-LA (1998). b.
3: 1 1 B. Offsite Harm is Not Demonstrated { 1 Even if the procedural deficiency were remedied, and members were identified, ) l the standing of CCAM, based in Mystic, Connecticut, and CAM, based on Long Island, is not j clear. In license amendment cases, where standing would be based on the nearby residence of individuals, 'the Commission has held that petitioners must allege a clear potential for offsite consequences resulting from that amendment. Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21,30 NRC 325, 329-30 (1989). Although the NRC has applied a 50-mile proximity standard for reactor operating license proceedings, it has also held that a more stringent proximity standard applies to proceedings involving license amendments l with less potential for off-site consequences. Sie, sg, Boston Edison Co. (Pilgrim Nuclear Power Station), LBP-85-24,22 NRC 97,98-99 (1985), aff'd on other grounds, ALAB-816,22 NRC 461 (1985) (43 miles inadequate for standing because risk is less for a spent fuel pool i l expansion). Rather than the 50-mile proximity used for reactor licensing proceedings, petitioners in SFSP expansion proceedings must demonstrate "close proximity." Virginia Electric and , Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522,9 NRC 54,56 (1979) (" zone of harm" is smaller for SFSP expansion procecom; than a reactor operating license proceeding). In North Anna, the At,mic Safety and Licensing Appeal Board found that Ib ~ petitioners "living little more than a stone's throw from the facility" meet the close proximity
' test. Id. at 56.5 The NRC has noted that " potential safety hazards associated with spent fuel pool expansions are not as large as those associated with the reactor operation because the purpose of
! the expansion is to allow longer term storage of aged spent fuel." 51 Fed. Reg. 7744, 7754 (1986). The ' Commission.has also granted exemptions from its regulations 'concerning the Emergency Planning Zone ("EPZ") for at least three shutdown nuclear facilities. These facilities no longer have operating nuclear reactors, and consequently, the primary source of radionuclides
- is the spent fuel stored in each unit's SFSP, Seg, sa,63 Fed. Reg. 53940 (1998) (Big Rock I Point); 63 Fed.' keg. 48768 (1998) (Maine' Yankee); and 63 Fed. Reg. 47331 (Connecticut 1 Yankee). These' actions reflect the low potential for offsite consequences posed by a spent fuel pool.
- Based upon the limited amount ofinformation provided by the Petitioners, none of the. individual members in either organization would appear to satisfy the "close proximity" test- for SFSP expansion proceedings. Petitioners have not demonstrated that any of their members reside .within "a stone's throw of the facility." According to the Petition, CCAM is based in Mystic, Connecticut,' which is approximately 11 miles from the Millstone site. CAM, based in Westhampton, New York, is approximately 42 miles from the site. Both of these 5
In several other proceedings involving SFSP issues, the NRC addressed the standing of petitioners ~who lived or worked within several miles of the facility. Sgs, eg, General Public Utilities Coro. (Oyster Creek Nuclear Generating Station), LBP-96-23,44 NRC 143,157-59 (1996) @etitioner working within one mile of the facility and another petitioner living within one half mile of the facility had established standing); and Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 1), LBP-88-10A,27 NRC 452, 455 (1988) (parties conceded standing of petitioner who resided within lo miles of the facility).
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a j I i distances are well beyond the site boundary and beyond the distances that in previous ) 1 proceedings were found to meet the "close proximity" test discussed above. The Petition does not address how the Petitioners would satisfy the "close proximity" test; rather, they appear to assume, mistakenly, that the 50-mile test for reactor operating license proceedings neces:,arily i applies to this proceeding. IV. CONCLUSIQH For reasons set forth above, Petitioners' request for a hearing and intervenor status does not satisfy the requirements of 10 C.F.R. 2.714. Accordingly, the Petition should be denied. I Respectfully submitted, bi David A. Repka i Donald P. Ferraro l WINSTON & STRAVvW 1400 L Street, N.W. Washington, D.C. 20005-3502 i l Lil.lian M. Cuoco l NORTHEAST UTILITIES SERVICE COMPANY 107 Selden Street Berlin, Connecticut 06037 ATTORNEYS FOR NORTHEAST NUCLEAR ENERGY COMPANY 1
' Dated in Washington, D.C.
this 21st day of October,1999 DOCKElED UNITED STATES OF AMERICA USHRC NUCLEAR REGULATORY COMMISSION og DCT 28 P4 58 BEFORE THE ATOMIC SAFETY AND LICENSING BOARIT In the Matter of: ) Off.. .
) Docket No. 50-42gA' aF Northeast Nuclear Energy Company )
)
(Millstone Nuclear Power Station, ) Unit No. 3) ) NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter. In accordance with 10 C.F.R. Q 2.713(b), the following information'is provided: Name: David A. Repka Address: Winston & Strawn 1400 L Street, N.W. Washington,'DC 20005 E-Mail: drepka@winston.com Telephone Number: (202)371-5726 Facsimile Number: (202) 371-5950 Admissions: District of Columbia Ccmt of Appeals
]
I Name of Party: Northeast Nuclear Energy Company 107 Selden Street Berlin, Connecticut 06037 k k ekt David A. Repka . Winston & Strawn Counsel for Northeast Nuclear Energy Company Dated at Washington, District of Columbia
. this 21st day of October,1999
00CKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: ) OFF
) Docket No. 50-423-Og~? f Northeast Nuclear Energy Company ) )
) l (Millstone Nuclear Power Station, ) {
Unit No. 3)
)
l NOTICE OF APPEARANCE Notice is hereby given that the undersigned attomey herewith enters an appearance in the captioned matter. In accordance with 10 C.F.R. Q 2.713(b), the following i information is provided: Name: Daaid P. Ferraro Address: Winston & Strawn ) 1400 L Street, N.W. ; Washington, DC 20005
]
E-Mail: dferraro@winston.com _ Telephone Number: (202)371-5838 I i
- l. Facsimile Number: (202) 371-5950 l
Admissions: Commonwealth of Massachusetts District of Columbia Court of Appeals Name ofParty: . Northeast Nuclear Energy Company
'107 Selden Street
- i. Berlin, Connecticut 06037
.D E* &
. Donald P. Ferraro Winston & Strawn Counsel for Northeast Nuclear Energy Company Dated at Washington, District of Columbia this 21st day of October,1999 l L
p < 2 1I 00CKETED UNITED STATES OF AMERICA USFRC NUCLEAR REGULATORY COMMISSION w
" OCT 28 P4 :58 1
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: ) OF0 ,
) Docket No. 50-423-OIgh >
-F Northeast Nuclear Energy Company )
.)
(Millstone Nuclear Power Station, ). 3 Unit No. 3) ) 1 1 NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the , captioned matter. In accordance with 10 C.F.R.
~
2.713(b), the following information is .{ provided: Name: Lillian .M. Cuoco Address: Senior Nuclear Counsel Northeast Utilities Service Company 107 Selden Street Berlin, Connecticut 06037 Telephone Mumber: (860) 665-3195 Facsimile Number: (860) 665-5504 E-Mail: cuocolm@nu.com
-Admissions: Court of Appeals for the State of New York District of Columbia Court of Appeals Superior Court of Connecticut Name of Party: Northeast Nuclear Energy Company 107 Selden Street Berlin, Connecticut 06037 Lillian M. Cuoco '
k 1 Senior Nuclear Counsel Northeast Utilities Service Company Counsel for Northeast Nuclear Energy Company Dated in Washington, D.C. this Gl* day of October,1999 - l l
- t. ,
7 y. 1
. Dtr,KET F_0 i UNITED STATES OF AMERICA USHRC NUCLEAR REGULATORY COMMISSION og CCT 28 P4 58 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Ofi In the Matter of: ) IM i:
) Docket No. 5d23-OLA Northeast Nuclear Energy Company )
)
(Millstone Nuclear Power Station, ) ) Unit No. 3) ) CERTIFICATE OF SERVICE 1 I hereby certify that copies of " NORTHEAST NUCLEAR ENERGY COMPANY'S ANSWER TO REQUEST FOR A HEARING AND PETITION TO INTERVENE" and a " NOTICE OF APPEARANCE" for David A. Repka, Lillian M. Cuoco, and Donald P. Ferraro in the above-captioned proceeding, have been served on the following 1 y deposit in the United States mail, first class, this 21st day of October,1999. In addition, for those parties marked by an asterisk (*), a courtesy copy has been provided this same day by e-mail. Nancy Burton, Esq. Dr. Richard F. Cole * ! 147 Cross Highway' Administrative Judge Redding Ridge, CT 06876 A.tomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Office of the Secretary Dr. Charles N. Kelber* U.S. Nuclear Regulatory Commission Administrative Judge Washington, DC 20555 Atomic Safety and Licensing Board Attn: Docketing and Service Section U.S. Nuclear Regulatory Commission (criginal + two copies) Washington, DC 20555-0001
. AdjudicatoryFile Charles Bechhoefer*
Atomic Safety and Licensing Board Panel Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
(L i Office of Commission Appellate Adjudication' Ann P. Hodgdon* U.S. Nuclear Regulatory Commission . Office of the General Counsel Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 l t k
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David A.Repka Winston & Strawn Counsel for Northeast Nuclear Energy Company 1 1 I l l}}