ML20237D336
| ML20237D336 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 08/25/1998 |
| From: | Cole R, Kelber C, Moore T Atomic Safety and Licensing Board Panel |
| To: | AFFILIATION NOT ASSIGNED |
| References | |
| CON-#398-19454 98-740-02-LA, 98-740-2-LA, LA, LBP-98-20, NUDOCS 9808260043 | |
| Download: ML20237D336 (16) | |
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LBIO T N E O UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
OFFic:;.
c idY RULE +
..>NO Thomas S. Moore, Chairman ADJUDiCou. 4, MAFF Dr. Richard F.
Cole Dr. Charles N.
Kelber l
SERVED AUG 2 519ya
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In the Matter of Docket No. 50-423-LA NORTHEAST NUCLEAR ENERGY COMPANY ASLBP No. 98-740-02-LA (Millstone Nuclear Power Station, Unit No. 3)
August 25, 1998 l
MEMORANDUM AND ORDER (Resolving Standing Issue)
Petitioner, Citizens Regulatory Commission
(" CRC"), seeks to intervene in this proceeding to oppose the license amendment request of the Applicant, Northeast Nuclear Energy Company, for u
its Millstone Unit No. 3.
As described in the Commission hearing notice, the amendment request "to the Millstone Unit 3 licensing basis would eliminate the requirement to have the recirculation spray system ["RSS"] directly inject into the reactor coolant l
l system following a design baais accident."
63 Fed. Reg. 14,482, 14,487 (1998).
According to the Applicant's no significant hazard consideration analysis set out in the hearing notice, the amendment involves the elimination of the direct injection flow l
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t path from the design basis of the system but involves no physical modifications to the system itself.
The analysis further states that operability of the affected valves within the direct injection alignments remains unchanged and these paths are still available for contingencies beyond the design basis.
Id.
The Applicant and the NRC Staff challenge the standing of CRC to intervene in the proceeding.
For the reasons set forth below, we find CRC has the requisite standing.
I.
Background
As explained in the Applicant's license amendment application, the need for the amendment arose from a recent restart review.
The review revealed that the change in the function of the RSS that is the subject of the instant amendment originally had been made in 1986 pursuant to 10 C.F.R.
S 50.59.
It found that the 1986 change modifying the system description in the Millstone Unit No. 3 Final Safety Analysis Report ("FSAR") to reflect the elimination of RSS direct injection into the reactor coolant system should not have been made without a license amendment because the change involved an unreviewed safety question.
Hence, the Applicant filed the license amendment application to correct its previous error.
The amendment application states that the RSS, along with the quench spray system, is designed to provide long-term cooling of the containment and the core after a design basis accident.
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- The original 1986 change was made because during pre-operational testing in 1985 excessive tube vibration in the RSS heat exchangers occurred during certain modes of operation.
The Applicant determined that excessive tube vibration could occur when heat exchanger flows exceeded 4600 gallons per minute.
Because its system analysis demonstrated that direct injection was not required for the recirculation phase to assure minimum flow for core cooling, the Applicant eliminated RSS direct injection thereby reducing RSS heat exchanger flow and tube vibration.
The Applicant also revised its emergency operating procedures to reflect the functional change in the RSS, although direct injection procedures were retained as a contingency action.
The amendment application safety assessment indicates that the 1986 change to the design basis to eliminate the direct injection function by the RSS was a significant modification of system operation that changed the RSS direct core cooling safety function from a redundant safety function to a contingent safety function in the event of failures of the primary injection flow paths.
The Applicant's evaluation concluded that the change was safe oecause its analysis verified that the modified alignment delivered sufficient flow to meet long-term cooling requirements after a loss of coolant accident and that the design basis of maintaining subatmospheric containment pressure was unchanged.
Further, the Applicant's evaluation found that the increase in
li-l l-probability of malfunction of equipment due to the increased use of operator actions was' acceptable.
'As set forth in the Petitioner's intervention petition, a supplemental petition, and several accompanying affidavits of its members, CRC is an organization of citizens residing in
-southeastern Connecticut that is concerned about the safety of 1
the Millstone Nuclear Power Station.
The organization includes families with young children such as those of affiants Clarence l
O. Reynolds and Susan Perry Luxton who live within the 5-mile priority. emergency evacuation zone of Millstone.
They both have authorized CRC'to represent them in this proceeding.
Another affiant who also has authorized the organization'to represent i
l
.him, Joseph H.
Besade, lives with his family within 2 miles of t
the Applicant's facility -- an area he states could be directly J
impacted by a Millstone accident with offsite consequences and an i
area where the Applicant is required to provide protective.
actions in the event of an accident.
l The CRC petition asserts that the instant license amendment l
application involves issues that are critical to the safe operation of Millstone Unit 3 and therefore directly impacts the health and safety of CRC members.
Specifically, CRC states that the RSS is a critical safety system and that its failure could be catastrophic.
It claims ~that for the past two years the Applicant has' regularly permitted the use of faulty calculations with respect to facility systems at Millstone and, in particular, j
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I l that the Applicant has employed inadequate procedures, methods, and analyses of safety systems.
CRC further asserts that the Applicant has long been aware of problems associated with the facility RSS and that the NRC has acknowledged that Millstone has been allowed to operate with an inoperable RSS.
According to CRC, the failure of the Applicant and the NRC to ensure complete operability of the RSS in the past has needlessly and recklessly jeopardized the health, safety, and welfare of CRC's members.
I CRC also claims that, in March 1998, when the Applicant tested another modification to the safety critical RSS, the test resulted in serious damage to the pump systems needed in the event of a loss of coolant accident because the modification was poorly designed and inadequately reviewed.
Finally, CRC asserts that for the past two years the Applicant has compromised safety at Millstone in the interest of schedule driven efforts to obtain restart approval and that the Applicant continues to harass and I
intimidate, and retaliate and discriminate against employees raising safety issues.
In light of all these circumstances, CRC claims that it has no confidence that the Applicant has properly and adequately analyzed the RSS at Millstone.
It asserts, therefore, that l
approval of the proposed license amendment will adversely impact l
the health and safety of CRC members.
In amplification of these claims, the affidavits of the CRC members accompanying the supplement to the intervention petition state that the proposed
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- license amendment involves untested modifications to the safety critical RSS and that approval of the amendment, without adequate and appropriate testing, will have the effect of reducing safety margins at Millstone.
Each of the affidavits concludes that the license amendment will impact them in the event an accident results from reduced safety margins.
II. Analysis Section 189a of the Atomic Energy Act provides, in pertinent part, that in any proceeding for the amending of a reactor license "the Commission shall grant a hearing upon the request.
- any person whose interest may be affected by the proceeding."
42 U.S.C S 2239 (a) (1) ( A).
The Commission's regulations, in turn, state that "(a]ny person whose interest may be affected by the proceeding shall file a written petition for leave to intervene."
10 C.F.R. S 2.714 (a) (1).
The regulations further provide that "[t]he petition shall set forth with particularity the interest of the petitioner in the proceeding, (and] how that interest may be affected by the results of the proceeding, including the reasons why petitioner should be permitted to
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intervene."
10 C.F.R.
S 2. 714 (a) ( 2 ).
In assessing whether a petitioner has set forth a sufficient " interest" to intervene in the licensing proceeding under the Atomic Energy Act and the i
agency's regulations, the Commission has for over two decades applied contemporaneous judicial concepts of standing.
Portland 1
1 General Electric Co. Pebble Springs Nuclear Plant, Units 1 and
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L______--_.
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Accord Ouivira Minina C2x (Ambrosia Lake Facility, Grants, New Mexico), CLI-98-11, 47 LNRC __, __-(slip op, at 4-5) (July 17, 1998).
As the Commission frequently has reiterated, "[t]o demonstrate standing, the petitioner must allege a concrete and particularized injury that is fairly traceable to the challenged action and is likely to be redressed by a favorable decision."
Cleveland Electric Illuminating Co. -(Perry Nuclear Power ~ Plant, Unit 1),JCLI-93-21, 38 NRC 87, 92 (1993).
' Additionally, "[t]his injury must be to an interest' arguably within the zone of
' interests protected by the governing statute," i.e.,'the Atomic
' Energy Act or the National Environmental Policy Act of 1969.
Id.
This same showing is necessary regardless of whether the petitioner is an individual or an organization seeking to intervene in its own right.
Georcia Institute of Technoloav (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12, 42 NRC 111, 115 (1995); Florida Power & Licht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), ALAB-952, 33 NRC 521, 529: (1991).
When an organization seeks to intervene as the
' authorized representative of its members, however, the organization must demonstrate that at least one of its members l
has' standing and has authorized the organization to represent him.
.The organization also must show that the interests it seeks to protect are germane to the purpose of the organization and that neither the claim asserted nor the relief sought requires l :-
a
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- the participation of an individual member in the proceeding.
Private Fuel Storace, L.L.C.
(Independent Spent Fuel Storage Installation), CLI-98-13, 47 NRC __, __ (slip op. at 4) (July 29, 1998).
In its intervention petition, CRC does not claim any harm to its organizational interests; rather, it seeks only to represent the interests of its members in challenging the license amendment.
The Applicant and.the Staff both argue, however, that CRC has failed to demonstrate the requisite standing of any of I
its individual members.
Although conceding that ceveral of its t
members have authorized the organization to represent them in this proceeding, the Applicant and the Staff claim that CRC has asserted no injury in fact to the interests of CRC members that is fairly traceable to the license amendment request.
Contrary to the arguments of the Applicant and the Staff, however, we find CRC's intervention filings satisfy threshold standing requirements.
Initially, we note that in evaluating CRC's standing to intervene, Commission precedent directs that we construe the petition in favor of the petitioner.
Georaia Tech, CLI-95-12, 42 NRC at 115.
Here, fairly read, CRC's intervention filings assert
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harm in the event of an accidental release of radioactive fission products 'to the health and safety of several CRC members and i
their families who reside in reasonably close proximity to the Millstone facility.
In the case of CRC member Joseph Besade, his affidavit states that he and his family live about two miles from I
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- the facility within the area that would be directly impacted by an accident with offsite consequences and where the Applicant is required to provide protective actions.
This assertion of injury to the health and safety of CRC members and their families is a sufficient allegation of harm to meet the injury in fact element of the test for standing.
See Perry, CLI-93-21, 38 NRC at 94-95.
CRC also adequately alleges that the harm to its members is fairly traceable to the license amendment at issue.
As the Commission has stated, "(s]uch a determination is not dependent on whether the cause of the injury flows directly from the challenged action, but whether the claim of causation is plausible."
Seouovah Fuels Corn. (Gore, Oklahoma Site), CLI 12, 40 NRC 64, 75 (1994).
In this regard, CRC states that the instant license amendment involves the RSS, a critical safety system, the failure of which could be catastrophic.
It claims, in effect, that implementation of the proposed license amendment changes to the RSS will reduce safety margins, thereby impacting the organization's members should an accident occur.2 CRC also i
asserts that the approval of these changes to the RSS, without first appropriately testing them, similarly impacts its members because of what CRC claims is the Applicant's past poor safety record involving the critical RSS.
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'The affidavits accompanying CRC's supplement to its intervention petition, all state that the license amendment will reduce safety margins at Millstone thereby impacting the affiants should an accident result from the reduced safety margins.
Because the RSS is itself an accident mitigation system, it is clear, in context, that the affiants are referring to a more severe accident resulting from the reduced safety margins.
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- ' -With respect to the other factors that govern standing, a
i decisich favorable to CRC that either denies the license amendment or, alternatively, requires appropriate testing as CRC apparently requests, would redress the' injury asserted by the organization on behalf of its members.
Similarly, the health and safety interest asserted by CRC in its intervention filings is the same health and safety interest underlying the Atomic Energy
- Act, so the assertion of harm-to the health and safety of CRC members is obviously'within the zone of interests protected by the NRC's governing statute.
At the same time, the health and
, safety' interests of the CRC members that the organization seeks to protect are germane to the purpose of CRC -- a citizens organization in the area of the Millstone-facility concerned i
about the safety of the Applicant's nuclear plants.
- Finally, CRC's participation in the proceeding as the representative of i
its members does not require any individual member also to i
participate in order for CRC to pursue its contentions or obtain f
relief.
Indeed, the Applicant and the Staff do not contest any i
of-these latter elements of the test for CRC's standing.
j In challenging CRC's. standing to intervene, the Applicant and the Staff rely, in part, on the decision in Florida Power &
Licht Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI L i
l 21, 30 NRC 325, 329-30 (1989), where the Commission discussed the i
presumption applicable in construction permit, operating license, and significant license amendment proceedings that residence near a nuclear power plant is enough to confer standing on a
2 petitioner.
In St. Lucie, the Commission held that "[a]bsent situations involving obvious potential for offsite consequences, a petitioner must allege some specific " injury in fact" that will result from the action taken."
30 NRC at 329-30.
According to the Applicant and the Staff, the instant license amendment presents no obvious potential for offsite consequences so CRC cannot rely on the residence of its members in close proximity to Millstone to establish standing.
Rather, they argue CRC must show a specific injury to its members resulting from the license amendment and CRC's intervention petition fails in this regard.
The arguments of the Applicant and the Staff put too fine a point on what is required of CRC to establish its standing to intervene as the representative of its members.
CRC asserts that the RSS, the subject of the license amendment, is a critical safety system.
That description is borne out by the Applicant's own safety assessment it. the license amendment application indicating that, after a design basis loss of coolant accident, the RSS functions to mitigate the accident by ensuring long-term cooling for the reactor core.
CRC also asserts that the failure of the RSS system could be catastrophic and it indicates that adoption of the amendment will have the effect of reducing safety margins to the system.
Again the Applicant's license application seemingly supports this claim, describing the change made by the instant amendment as a significant modification of system
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operation and one that increases the probability of malfunction l
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- of equipment due to the increased use of operator actions.
Certainly, in this light, the potential for offsite consequences from the instant amendment is at least on par with the removal of the' schedule for the withdrawal of reactor vessel material specimens from the technical specifications that the Commission in Perry found adequate to conclude that there was an obvious potential for offsite consequences.
CLI-93-21, 38 NRC at 95-96.
Hence, CRC properly may rely upon the proximity of its members to Millstone to establish its standing.
Moreover, even assuming the instant license amendment presented no obvious potential for offsite consequences, CRC's assertion of injury is adequate to confer standing.
As previously indicated, CRC asserts harm to the health and safety of its members from an accident with offsite consequences, i.e.,
the release of radiological fission products into the environment, because the CRC members live between 2 and 5 miles from Millstone.
This assertion of injury is the same harm I
l accepted by the Commission in the Perry license amendment proceeding as an adequate expression of the required underlying concrete injury in fact to which the petitioner's alleged procedural injury was linked in circumstances where the L
petitioner lived 15 miles from the facility.
CLI-93-21, 38 NRC at 94.
Our conclusion in this regard is not obviated by the Staff's additional arguments that the instant license amendment will result in no physical changes to the plant and that it will have
4 no effect on the operation of the facility because the functional change to the RSS actually was made-in 1986.
According to the Staff, the. instant amendment merely permits the Applicant to revise the FSAR so that it includes an analysis supporting the elimination of the RSS direct injection path of cooling water in the event of a loss of coolant accident.
This being so, the i
Staff argues CRC has made no showing of any injury to its members
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resulting from the revision of the FSAR.
As should be self-evident, however, the fact that the Applicant erred in 1986 in not applying for a license amendment for the change in the operational use.of the RSS cannot now be used to bootstrap the i
Staff's novel argument that the current amendment is merely an exercise in editing the FSAR.
Finally, as previously explained, CRC has adequately
. presented the causal link between the health and safety interests of its members and the instant amendment.
Construing the intervention filings most favorably for CnC, the gist of CRC's assertion is that the amendment modifies the design of the critical RSS safety system, the failure of which could be L
. catastrophic and, in the event of an accident, the change reduces safety margins thereby putting CRC members living near Millstone at' greater risk.
The causal chain asserted by CRC is more specific than the link accepted by the Commission in Perry where the intervention filings expressed petitioner's interest in the
" safe operation" of the facility due to petitioner's proximity to 4
the plant'and referred to the removal of " safety-significant"
1 t material from the operating license that could lead to radiological harm for those living near the plant.
Perry, CLI-93-21,- 38 NRC at 95.
III.
Conclusion Clearly, CRC is not required, as the Applicant and the Staff would have it, to detail.more precisely the exact mechanism for an accident at Millstone or the offsite consequences of such an accident.
Accordingly, we conclude that CRC has standing to intervene in this-license amendment proceeding.
It is so ORDERED.
l THE ATOMIC SAFETY AND 1
LICENSING BOARD M
W Tflomas S. Moore, Chairman Administrative Judge i
1 M
Dr. Richard F.
Cole Administrative Judge l
,4,
- /
Dr." Charles N. Kelber i
Administrative Judge Rockville, Maryland August 25, 1998 l
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I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of NORTHEAST NUCLEAR ENERGY COMPANY Docket No.(s) 50-423-LA (Millstone Nuclear Power Station, Unit No. 3) l CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB M&O-RESOLVING STAND'S ISSUE have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
l Administrative Judge Office of Commission Appellate Thomas S. Moore, Chairman Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 l
Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Administrative Judge Richard F. Cole Charles N. Kelber Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Richard G. Bachmann, Esq.
Marian L. Zobler, Esq.
Lillian M. Cuoco, Esq.
Office of the General Counsel Senior Nuclear Counsel Mail Stop 15 818 Northeast Utilities Service Company U.S. Nuclear Regulatory Commission P.O. Box 270
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Washington, DC 20555 Hartford, CT 06141 i
David A. Repka, Esq.
Winston & Strawn Nancy Burton, Esq.
1400 L Street, N.W.
147 Crocs Highway Washington, DC 20005 Redding Ridge, CT 06876 l
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Docket No.(s)50-423-LA LB M&O-RESOLVING STAND'G ISSUE Dated at Rockville, Md. this 25 day of August 1998 Office of the Secretary of the Eomission 1
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