ML20236R922

Northeast Nuclear Energy Co Supplemental Answer Re Standing Issues (Recirculation Spray Sys Matter).* Citizens Regulatory Commission Petition Should Be Dismissed. W/Certificate of Svc

ML20236R922
Person / Time
Site:	Millstone
Issue date:	07/20/1998
From:	Repka D NORTHEAST NUCLEAR ENERGY CO., WINSTON & STRAWN
To:	Atomic Safety and Licensing Board Panel
References
CON-#398-19338 LA, NUDOCS 9807240023
Download: ML20236R922 (9)

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f hd S 00CKETED l USNRbly 20,1998 l - UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSIg i

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BEFORE THE ATOMIC S AFETY AND 1.ICENSING BOARD in the Matter of )

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Northeast Nuclear Energy Company ) Docket No. 50423-LA i

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(Millstone Nuclear Power Station, )

Unit No. 3) )

NORTHEAST NUCLEAR ENERGY COMPANY'S SUPPLEMENTAL ANSWER REGARDING STANDING ISSUES (RFCIRCITI ATION SPRAY SYSTEM MATTER)

I. INTRODIJCTION In accordance with the Order of *he Atomic Safety and Licensing Board (" Licensing Board") issued on June 15,1998, Northeast Nuclear Energy Company ("NNECO") hereby files its partial reply to the Supplement to Intervention Petition (" Supplemented Petition") filed on July 6, i-1998, by the Citizens Regulatory Commission (" CRC"). This partial reply addresses only issues related to CRC's standing to intervene in this matter. NNECO will reply to CRC's proposed

" contention.," in accordance with the schedule established by the Licensing Board's June 15th Order.

.he Supplemented Petition supplements CRC's initial petition of April 23,1998.l' CRC is seebg a formal hearing, and intervenor status, with respect to NNECO's operating license er.sendment application related to one aspect of the operation of the Millstone Unit 3 Recirculation l'

CRC's petition responds to the Notice of Opportunity for Hearing published in the Federal Register on March 25,1998, (63 Fed. Reg.14487) (" Notice").

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Spray System ("RSS"). NNECO responded to CRC's initial petition on May 22,1998 ("NNECO's Response") and opposed CRC's petition for lack of a demonstration of standing to intervene.

Notwi thstanding the information provided in the Supplemented Petition, NNECO continues to  !

believe that CRC has failed to der::onstrate its standing on this matter. Under 10 C.F.R. #2.714,  !

CRC's request for a hearing and intervenor status should be denied.

II. DISCtISSION l A. Organi7ational Standing The Supplemented Petition addresses the issue of CRC's organizational standing raised in NNECO's Response by providing affidavits from three members who l' ave authorized CRC to represent their interests in this proceeding. The copies of the affidavits provided to NNECO are  !

not signed. Assuming that CRC has provided signed originals to the Licensing Board, or that it can i produce signed copies, the procedural defect in the initial petition with respect to CRC's l organizational standing would be cured. CRC, however, would still need to show that the individual members on whom they rely for standing indeed have standing as individuals with respect to this matter. Georgia Institute of Technology (Georgia Tech Research P.cactor), CLI-95-12,42 NRC 111, 115 (1995).

B. Particulars 7ed Harm As discussed in NNECO's Response, to establish the standing ofindividual members, a petitioner must allege a concrete and particularized injury that is fairly traceable to the challenged action and likely to be redressed by a favorable decision. Georgia Tech: CLI-95-12,42 NRC at 115; see also Lupa v Deidnders of Wildlife,112 S. Ct. 2130,2136 (1992). CRC in the Supplemented Petition has still failed to demonstrate with particularity the individual interests that might be

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affected b; .he results of this proceeding. CRC has failed to mee. its burden ofshowing offsite harm that could result from the amendment at issue.

The tnembers identified by CRC allege that they live from 2 to 5 miles from the Millstone Station. They are relying upon nearby residence as their basis for asserting an injury that could flow from the license amendment at issue in this proccaling. All three members assert in their affidavits that "[a]pproval of such amendment, without adequate and appropriate testing, will have l

he effect of reducing safety margins at Millstone and will impact me should an accident result from the reduced safety margins." However,in addressing standing in license amendment cases where standing is to be based on nearby residence, the Commission has held that "[a]bsent situations involving such obvious potential for offsite consequences, a petitioner must allege some speci/lc

' injury infact ' that will resultfrom the action taken. .. " Elorida Power & 1 ight Co (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21,30 NRC 325,329-30 (1989)(emphasis added).2' With respect to the current amendment, there is neither an obvious potential for offsite consequences (i.e., akin to an operating license application or an amendment application related to a major facility

( alteration) nor an allegation of a specific iniury in fact associated with the RSS amendment.

As discussed in NNECO's Response, the approval in this case relates to a change that i

has been in place since 1986. The current amendment involving a licensing basis change (i.e.,

documentation update) relates to a specific change in the way the RSS would be utilized, or aligned, l

l during he recirculation phases of postulated design basis accident mitigation. NNECO's l'

Compare Northeast Nuclear Energy Co. (Millstone Nu,; lear Power Station, Unit 2), LBP 28,36 NRC 202,212-213 (1992).

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! amendment application demonstrates that from NNECO's perspective the change was acceptable.1' l

l Among other things, NNECO concluded that:

. . . the modified [RSS] alignment delivered sufficient flow to meet the long term cooling requirements after a LOCA, and the results of the containment analysis show that tl1e design basis of maintaining l subatmospheric containment pressure was unchanged.

Application, Attachment 3, at pages 3-4.

In addition, as explained in the Application, the operational modification did not i

1 eliminate direct injection from emergency operating procedures. It was recognized that cold-leg injection might be warranted in certain cases, and therefore provisions were maintained for direct cold-leg injection "as a contingency action, should one be required." Id. at page 2.

A:; with CRC's initial petition, neither the Supplemented Petition nor the included affidavits focus on these facts. CRC and its members assert a reduction in a " safety margin" that purportedly would result from the amendment (Affidavits, at paragraph 10). But it is not apparent  !

what reduction or margin of safety is or co11d be involved. Ci Seouoyah Fueis rom. (Gore, i s

Oklahoma Site), CL1-94-12, 40 NRC 64, 72-74 (1994) (focusing on whether alleged injury is

" concrete and particularized" and whether there is a " realistic threat" cf a direct injury).

l Accordingly, in this case CRC has not met its burden of demonstrating its standing.

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C. Nexus t.o Amendment NNECO doe, not address here the admissibility of CRC's proposed conte:itions.

(That issue will be addressed fully in NNECO's forthcoming response to the contentions.)

l' NNECO's amendment application is dated March 3,1998 See NNECO (M.L. 90wiing, Jr.)  ;

Letter to NRC (Document Control Desk), B17041," Proposed License Amendment Request

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// Recirculation Sprey Sy tem Direct Injection Change (PLAR 3-98-1)," Docket 50-423, March 3,1998 ("Applica .on"). I 4

Nonetheless, the proposed contentions might be offered as an assertion of particularized harm to support CRC's standing. Accordingly, NNECO responds here to the proposed contentions in that sense. The proposed contentions are completely insufficient as a basis for standing, because they iack any nexus to the amendment at issue in the Federal Register Notice giving rise to this proceeding.

CRC's entire Supplemented Petition is built around two proposed contentions, both of which assen the need for testing of the Millstone Unit 3 RSS in light of several modifications that have been made to the system. CRC in Proposed Contention I alleges "a physical reduction of the l flow within the system by half, modifications of piping, [and] a reduct:on in the number of spray ring holes . . . ." Supplemental Petition, at page 1. An alleged reduction in flow is also the premise for the similar Proposed Contention II. The problem with CRC's petition, however, is that none of

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l these referenced RSS modifications relates to the March 3,1998, NNECO amendment application.

CRC refers (Supplemental Petition, at page 2) to a February 16,1998, NNECO submittal to the NRC Staff and lists eighteen RSS modifications made prior to the 1996 Millstone  !

Unit 3 shutdown. However, these are not the modifications at issue in * .. Application or the Federal Register Notice. The February 16,1998, NNECO submittal, by its terms, provided information to the NRC Staff on the Unit 3 RSS configuration, including an " integrated safety analysis" of modifications to the system since the issuance of the NRC Safety Evaluation Report. This included asses:ments pursuant to 10 C.F.R. 50.59. As described in the submittal, one of the modifications reviewed -- the 1986 modification related to RSS direct injection - involved an unreviewed safety NNECO (M.L. Bowling, Jr.) letter to NRC (Document Control Desk), B17050, " Response l to Notice Request for Information on the Recirculation Spray System," Docket 50-423, i February 16,1998.

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question. Accordingly, that particular modification was submitted to the N ' RC Staff for review and approval in the March 3,1998, amendment application and became the subject of the Notice. The February 16, 1998, submittal, and the RSS modifications described there that do not involve unreviewed safety questions, are not subject to the NRC hearing process and are outside the scope of this proceeding.

Therefore, to the extent that these proposed contentions represent " specific aspects" of the proceeding wlich CRC wishes to contest, or to the extent they form the basis for alleged injuries that would confer standing in this prnceeding, they are insufficient. To establish injury in fact and standing, a petitioner must establish that (a) he or she will suffer a " distinct and palpable" harm; (b) the injury can fairly be traced to the challenged action; and (c) the injury is likely to be  !

redressed by a favorable decision in the proceeding. I.ujan,112 S.Ct at 2136. Here, CRC, by I focusing on the February 16,1998, submittal rather than the March 3,1%8, amendment application, and by casting its net so widely over the entire RSS rather than the one licensing basis change at issue, has failed on all three points.

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III. CONCLIISION For the reasons set forth above, CRC's request for a hearing and intervenor status does not satisfy the requirements of 10 C.F.R. Q 2.714. Accordingly, CRC's petition should be cismissed.

I Respectfully submitted, tit k .g n k David A. Repka T  % j WINSTON & STRAWN l 1400 L Street, N.W.  !

Washington, D.C. 20005-3502 (202) 371-5726 Lillian M. Cuoco NORTHEAST UTILITIES SERVICE COMPANY 107 Selden Street  !

Berlin, Connecticut 06037 ATTORNEYS FOR NORTHEAST NUCLEAR ENERGY COMPANY I l

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Dated in Washington, D.C.

this 20th day of July,1998 7

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'4 00CKETED USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

% JUL 22 P2 34 BEFORE THE ATOMIC SAFETY AND I ICENSING RnARD . .

cn u n,.. . . -

- l , vy n RULE W J ADJUDiC/ W @AF bi r In the Matter of )

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Northeast Nuclear Energy Company ) Docket No. 50-423-LA

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' (Milistone Nuclear Power Station, )

Unit No. 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of" NORTHEAST NUCLEAR ENERGY COMPANY'S SUPPLEMENTAL ANSWER REGARDING STANDING ISSUES (RECIRCULATION SPRAY

- SYSTEM MATTER),"in the above-captioned proceeding, have been served on the following by deposit in the United States mail, first class, this 20th day of July,1998. In addition, for those parties marked by an asterisk (*), a courtesy copy has been provided this same day by e-mail.

Nancy Burton, Esq. Thomas S. Moore

• 147 Cross Highway Chairman 1 Redding Ridge, CT 06876 Atomic Safety and Licensing Board  !

U.S. Nuclear Regulatory Commission i 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: Rulemaking and Adjudications U.S. Nuclear Regulatory Commission (original + two copies) Washington, DC 20555-0001 Adjudicatory File Dr. Richard F. Cole

• j Atomic Safety and Licensing Board Panel Administrative Judge l U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board  !

Washington, DC 20555 U.S. Nuclear Regulatory Commi.csion  ;

Washington, DC 20555-0001-l j

! Office of Commission Appellate Adjudication Richard G. Bachmann, Esq.*

U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 1 m\ W N David A. Repka ~\

Winston & Strawn Counsel for Northeast Nuclear Energy Company 2