ML20237F089
| ML20237F089 | |
| Person / Time | |
|---|---|
| Site: | Zion File:ZionSolutions icon.png |
| Issue date: | 08/31/1998 |
| From: | Jenkins D COMMONWEALTH EDISON CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#398-19479 98-744-04-LA, 98-744-4-LA, LA-2, NUDOCS 9809020044 | |
| Download: ML20237F089 (13) | |
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L /fV7f DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION y gp q g 2 BEFORE THE ATOMIC SAFETY AND LICENSING BOMG, O.s "SU '
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In the Matter of
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Docket Nos. 50-295/304-LA-L-
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COMMONWEALTH EDISON COMPANY
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ASLBP No. 98-744-04-LA
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(Zion Nuclear Power Station,
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Units 1 and 2)
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08/31/98
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COMMONWEALTH EDISON COMPANY'S RESPONSE TO PETITION TO INTERVENE AND INITIAL STATEMENT OF CONTENTIONS AND REOUEST FOR STAY L
INTRODUCTION AND
SUMMARY
OF ARGUMENT
"' On August 18,1998, the Committee for Safety at Plant Zion ("CSPZ"), Mr.
Randy Robarge, and Mr. Edwin D. Dienethal (collectively, " Petitioners") filed with the Commission a " Petition to Intervene and Initial Statement of Contentions and Request for Stay" (" Petition"). Petitioners request review of a No Significant Hazards Consideration determination made by the NRC Staffin connection with license amendments that have already been issued and implemented at the Zion Nuclear Power Station. Petition at 2. In addition, the Petition seeks a stay "concerning the implementation of the [No Significant Hazards Consideration) Finding." Petition at 2. In filing their Petition, Petitioners purport to rely on an August 12,1998, FederalRegister notice, which they erroneously claim l
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"provided an opportunity for persons with interest in the Finding to file a petition for leave to intervene on or before September 11, 1998." Petition at 1.'
It is Comed's understanding that the Commission has referred the Petition to the already established Atomic Safety and Licensing Board panel for disposition.
. As set forth in more detail below, the Petition must be dismissed by the Board on several independent grounds. First, NRC regulations specifically provide that "No petition or other request for review of or hearing on the Staffs significant hazards consideration determination will be entertained by the Commission." 10 CFR 50.58 (b)(6). The relief f
requested by Petitioners is thus directly prohibited by Commission regulations as well as I
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firmly established Commission administrative decisions.
j Second, Petitioners were notified of the Staffs proposed No Significant Hazards Consideration determination through a May 6,1998, FederalRegister notice, but elected not to submit public comments witidn the prescribed 30-day time period as directed by the FederalRegister notice. See 63 Fed. Reg. 25101, March 6' 1998.2 No good cause for this failure to submit timely comments has been shown.
Third, although Petitioners request the extraordinary relief of a " stay concerning the implementation of the [No Significant Hazards Consideration] Finding," (Petition at 2) the Board is withoutjurisdiction to grant this request and none of the requirements for such a stay have been met. In particular, Petitioners have not shown that they are likely to prevail on the merits, nor have they shown irreparable harm if a stay is not granted.
Accordingly, the request for a stay must be denied.
l As discussed in Section II below, the August 12,1998. FederalRegister notice did D91 imite intervention or comment with respect to the Zion license amendments or the NRC Staffs No Significant Hazards Consideration determination.
It was in response to this same May 6,1998, Notice that Petitioner Dienethal filed a Petition to latervene in the Licec= A mendment proceedmg on June 4,1998, relying in part on material from a Department of Labor case % which Mr. Robarge was a party. Petitioners Dienett i.w! Robarge represent that they are co<iirectors of Petitioner CSPZ. Petition at 2.
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Moreover, the request for a stay is moot -- the license amendments have already been issued and implemented at Zion Station. There is no pending action to be stayed.
The law is clear that issuance of a stay in such circumstances is inappropriate and in this
. case a stay would involve legal, administrative, and practical difficulties that would make it
- unworkable.
. For all of the above reasons, the Petition and request for stay are improper and must be dismissed.
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' STATEMENT OF FACTS Commonwealth Edison Company (" Comed") decided to permanently shut down the Zion Nuclear Power Station in January 1998. On March 30,1998, the company applied for license amendments to make the Technical Specifications more consistent with the plant's shutdown condition. These license amendments: (1) restore the Zion Custom Technical Specifications and the associated license conditions that had been replaced by.
I the Improved Technical Specifications $; (2) change certain management titles and i
responsibilities to reflect the permanently shut down condition of the plant; (3) allow the use of Certified Fuel Handlers in lieu oflicensed operators (because the plant will no longer operate); (4) modify shift crew compositions to reflect the non-operational status; and (5) eliminate verbiage that implies the units are operational. These changes make the license more consistent with the reality that Zion is shut down and will no longer operate.
On May 6,1998, a notice was published in the FederalRegister, informing the public that the NRC had received the license amendment application and that the NRC Staff proposed to find that the amendments involved no signi6 cant hazards. See 63 Fed.
8 De Improved Technical Specifications (ITS) for Zion haw newr been implemented. The ITS for Zion were issued in late 1997 when the plant was shutdown and were required to be implemented prior to Unit 2 reaching Operational Mode 4 (hot shutdown). Because the Zion units haw been permanently shut down and defueled, Mode 4 has not and will not be entered. Accordingly, ewn absent these license amendments, the ITS were not required to go into effect and the Custom Technical Specifications remainedin place.
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Reg. 25101, 25105-25107. Among other things, the Staff based this proposed
- determination on the grounds that, with the plant ' ermanently shutdown and defueled, the p
spectrum of accidents and events that remain credible is significantly reduced and that the -
, proposed amendments do not affect the probability or consequences of any accidents that i
do remain credible.
The May 6,1998, notice invited public comment on the proposed No Significant.
i Hazards Consideration detennination, noted that those comments must be filed within 30 i
I days of the notice, and provided directions on how conunents should be submitted. The May 6,1998, notice also invited interested persons w n equest a hearing on the license amendments, also within 30 days, and provided instructions on how to file a Petition to Intervene for a hearing. The notice specifically mentioned that if "the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment." 63 Fed. Reg. at 25102.
On June 4,1998, Petitioner Dienethal submitted a petition for leave to intervene in the license amendment application. However, Petitioner Dienethal did not submit any comments on the proposed No Significant Hazards Consideration determination at that time. On June 17,1998, a Federal Register Notice was published noting the establishment of an Atomic Safety and Licensing Board to address Mr. Dienethal's Petition. Neither of the other Petitioners submitted comments or sought to intervene.
On July I and July 8,1998, Comed and the NRC Staff, respectively, filed motions to dismiss Petitioner Dienethal's Petition on the ground that Petitioner had failed to
~ demonstrate standing to intervene in the Zion license amendment proceeding. In particular, both Comed and the NRC Staffnoted that Petitioner Dienethat had not i
described any particular harm or injury that would result from implementation of the license amendments. On July 10,1998, the Board directed Petitioner Dienethal to fde an 4
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Amended Petition, along with any proposed contentions, by July 22,1998 (subsequently extended to July 31,1998).
Petitioner Dienethal's Amended Petition, along with nineteen proposed contentions, was filed on July 31,1998. On August 18,1998, Comed and the NRC Staff each filed responses to the Amended Petition, noting that Petitioner Dienethat still had not established a basis for standing. _ A Board ruling on whether Petitioner Dienethal has standing is pending.
On July 24,1998, the NRC issued the Zion License Amendments and directed that the license amendments be implemented within 30 days. l Over the next several weeks, f
1 Comed proceeded to implement the license amendments, including document and
. procedure changes, termination of Operators Licenses, and replacement of the licensed operator training program with a Certified Fuel Handler training program.
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On August 12,1998, a notice was published in the FederalRegister announcing j
that the license amendments had been issued. See 63 Fed. Reg. 43200,43217. This notice simply informed the public that issuance of the license amendments had been completed and noted that no comments had been received from the public concerning the proposed No Significant Hazards Consideration determination. Id. Contrary to Petitioners' representations, the August 12,1998, FederalRegi. ster notice did nqi include any invitation to intervene in any matter related to the Zion Station.'
On a biweekly basis, the NRC issues FederalRegister notices that desenbe the No Significant Hazards Consideration determinations that the NRC Staff proposes to make. The biweekly notice also lists the No Significant Hmrds Consideration determinations that were presiously noticed and have
~ become final. On May 6,1998, the Staff properly issued a FederalRegister notice indicating that i:
proposed to find no significant hazards for the Zion license amendments. Sec 63 Fed. Reg. 25101,25105.
In the May 6 notice, the NRC Staffimited "public comment on this proposed determination" and prmided instmetions on how those public comments should be submitted. 63 Fed. Reg. 25101.
Petitioners did not submit any comments on the proposed No Significant Hazards Consideration determination in response to the May 6 notice. On August 12,1998, another biweekly FederalRegister notice was issued, which notified the public that the Zion license amendments desenbed in the May 6 notice had been issued. See 63 Fed. Reg. 43200,43217. The August 12 biwtekly notice imited public comment on othg proposed No Significant Hazards Consideration determinations, but not on the already issued No Significant Hazards Consideration determination for Zion Station. Petitioners have apparently imsread, and have certainly mischaracterized, this FederalRegister notice. In addition, contrary to 1-L Petitioners' assertions, nowhere in either the May 6 or August 12 FederalRegister notices was there any 5
On August 18,1998, Petitioners filed the instant Petition to Intervene and Initial Statement of Contentions and Request for Stay. Petitioners are Edwin Dienethal, who f
previously sought leave to intervene before the Board, CSPZ and Randy Robarge. CSPZ i
and Mr. Robarge did not seek to intervene in the license amendment proceeding and have not provided any basis for late filing. The Petition also reiterates the nineteen f
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" contentions" previously proposed by Mr. Dienethal before the Board.'
I In sum, the instant Petition was not filed within the time periods specified by NRC regulations and the applicable FederalRegister notices. It attempts to create a review of the No Significant Hazards Consideration determination that is both prohibited by NRC i
l regulations and is parallel to, and duplicative of, the already ongoing Board proceeding.
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In addition, two of the three Petitioners, CSPZ and Randy Robarge, made no attempt to
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intervene or comment on these license amendments before now and have not provided any showing of good cause for late filing. Finally, the Petitioners did not seek this " stay" concerning the No Significant Hazards Consideration determination until August 18, 1998, several weeks after the license amendments were issued and implemented, even
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though the May 6,1998, FederalRegister notice specifically noted that any comments on that determination would have to be received within 30 days (by June 5,1998) in order to be considered. Petitioners' claim that the August 12,1998 FederalRegister notice
" invited" intervention mischaracterizes that notice and is incorrect.
invitation for " intervention" with respect to the No Significant Hazards Consideration determination.
Indeed, such " intervention" is expressly prohibited by 10 CFR l 50.58 (b)(6).
8 Each of these nineteen contentions has been modified to add a request for a stay and, in some cases, to provide additional detail. However, the " Statements" of the contentions provided in the Petition are identical to those previously advanced by Mr. Dienethal 6
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I HL ARGUMENT 1
A.
Petitioners Attempt To Obtain Review Of The Staffs "No Significant Hazards Consideration" Determination Is Prohibited By The NRC's i
Regulations And Administrative Decisions I
NRC regulations expressly prohibit any petition or other request for review of a NRC Staff No Significant Hazards Consideration determination.10 CFR 50.58(b)(6) provides:
No petition or other request for review ofor hearing on the staffs significant hazards consideration determination will be entertained by the Comnission. _ The staffs determination is final, subject only to the j
Commission's discretion, on its own initiative, to review the determination.
Petitioners' filing clearly violates this unequivocal requirement. Accordingly, the Petition must be dismissed.
I Similarly, NRC administrative decisions have consistently held that 10 CFR Q 50.58(b)(6) is a jurisdictional bar to challenges to the Staffs No Significant Hazards i
l Consideration determinations and the immediate effectiveness of an amendment. See, e.g.,
j Vcrmon: Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station),
LBP-90-6,31 NRC 85,90-91 (1990); Florida Power and Light Comoany (Turkey Point Nuclear Generating Plant, Units 3 and 4) LBP-89-15,29 NRC 493,495-96 (1989);
Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station),
LBP-88-19,28 NRC 145,153-54 (1988). Thisjurisdictional bar forecloses any direct appeal regarding the merits of the Staff s No Significant Hazards Consideration determination. Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, Units 1 and 2) CLI-86-12,24 NRC 1,4 (1986), rev'd in part on other grounds, San Luis Obisbo Mothers for Peace v. NRC. 799 F.2d 1268 (9th Cir.1986). Similarly, petitioners "cannot... obtain indirect review (as Petitioners attempt to do here) through the guise of I
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l-an application for a stay of the Staff's finding." hl' In short, Petitioners' request to intersne and for a stay of the Staff's "no significant hazards consideration" determinr. tion is directly prohibited by NRC regulations and administrative decisions and thus must be L
summarily dismissed.'
I-l B. '
Even ifIt Were Not Prohibited Petie'--- s' Stav Reamt Must Be Denied As discussed above, Petitioners' stay request is a prohibited attempt to obtain review of a No Significant Hazards Consideration determination. Accordingly, the Board is without jurisdiction to entenain the stay request and is obligated to summarily deny it.
However, even if the Board had jurisdiction, the stay request fails to meet any of the four criteria necessary to support the granting of a stay. Moreover, because the license amendments have been issued and implemented, there exists no pending action that can be stayed and Petitioners' request is therefore moot.
1; The Reauest For Stav Does Not Meet The Commission's Requirements For.
Grantina A Stav The Commission examines stay requests under the same four criteria applied by the l
Federal courts in deciding whether to grant or deny a stay pending appeal. Public Service s
la Pacific Gas & Electric, the Commission exercised its inherent authority to resiew a Staff No Significant Hazards Consideration determination. The Commission performed this review on its own initiative because of"special circumstances" surrounding a license amendment authorizing the expansion i
of the Diablo Canyon nuclear plant's spent fuel pool. Those special circumstances included " Congress'
- special concerns about significant hazards considerations for spent fuel license amendments" in a spent fuel pool expansion and reracking case. Id. at n. 2. That Congressional concern had been specifically artscul.ited in the legislative history of the statutory amendments authorizing post issuance hearings for license amendments involving No Significant Hazards Considerations. Id. at n.2. No such "special' circumstances" exist in this case. In any event, pursuant to 10 CFR f 50.58(bX6), only the Commission itself may undertake discretionary review of a No Sigmficant Hazards Consideration determination, which it has not done in this case.
Petitioners claim to " reserve the right to amend" their Petition. Petition at 2. However, since the Petition is not authonzed under 10 CFR { 2.714, and is directly prohibited by 10 CFR l 50.58(b)(6), it must be summanly damssed Commission regulations clearly prohibit Petitions of this type, and certainly do not authonze amendments to such petitions.
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Company ofNew Hampshire (Seabrook Station, Units 1 and 2) CLI-90-03,31 NRC 219, 257 (1990), citing Virninia Petroleum Jobbers Association v Federal Power Commission, 259 F.2d 921,925 (D.C. Cir.1958). These four criteria are:
(1) whether the moving party has made a strong showing that it is likely to prevail on the merits.
(2) whether the party will be irreparably injured unless a stay is granted.
(3) whether the granting of a stay would harm other parties.
1 (4) where the public interest lies.
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/d at n. 59. See also 10 CFR { 2.788. It is the moving party's burden to demonstrate each of these factors and, while no one factor is dispositive, "the most crucial [ factor) is I
whether irreparable injury will be incurred by the movant absent a stay." Alabama Power Comoany (Joseph M. Farley Nuclear Power Plant Units I and 2), CLI-81-27,14 NRC 795, 797 (1981). See also Dataphase Systems. Inc. v. C L Systems,640 F.2d 109,114 n.
9 (8th Cir.1981). Despite this burden, Petitioners' stay request makes no attempt to demonstrate any of these factors. In fact, none of these factors are even mentioned in l
Petitioners' stay request. This deficiency alone is enough to compel dismissal of the request. See Bghpock and Wilcox (Apollo, Pennsylvania Fuel Fabrication Facility), LBP-92-31, 36 NRC 255,263; Cleveland Electric illuminating Comoany (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820,22 NRC 743,749 (1985).
l Consideration of these four factors will compel the Board to deny the request for a l
stay. First, Petitioners have no probability of success on the merits. Their attempt to
" intervene in the July 24,1998, No significant Hazards Consideration' finding reached by the NRC staff' (Petition at 2) is specifically prohibited by Commission regulations. As explained above, Petitioners have no right to request review of the Staffs No Significant Hazards Consideration determination. Their opportunity to file comments on the Staffs t
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- proposed finding was ignored and has since expired. Accordingly, because they are prohibited from seeking review of the "no significant hazards consideration" determination, there is no prospect that they could prevail on the merits of that review.
Petitioners therefore fail to meet the first factor.'
Second, the most crucial factor affecting whether a stay request will be granted is whether the moving party will suffer irreparable injury unless the stay is granted. Kerr-McGee Chemical Corporation (West Chicago Rare Earths Facility), ALAB-928,31 NRC t
263, 267 (1990). Petitioners' stay request alleges no such irreparable injury, nor could it.
The underlying license amendments simply make the Technical Specifications more consistent with the plant's permanently shut down condition. It is hardly likely that these amendments could cause petitioners any harm; as noted by the NRC Staffin its proposed
- No Significant Hazards Consideration determination, with the reactors shut down and
- defueled "the spectnam of accidents and events that remain credible is signi6cantly reduced" and "the proposed changes do not affect the probability or consequences of any accidents that do remain credible." 63 Fed. Reg. at 21507 (May 6,1998). Accordingly, Petitioners fail to satisfy the second factor.
Third, a stay should not be granted because Comed would suffer significant injury.
Because the Zion station has permanently ceased operations and the reactors have been defueled, the amendments allowed Zion to replace licensed operators with certified fuel To the extent that the Petition could be construed as seeking late inten ention pursuant to 10 CFR l
f 2.714(a)(i), it must be denied. Petitioner Dienethat already has a pending petition to inten'ene in the Zion license amendment proceeding. His petition was filed within the time provided by the May 6,1998 Federa/ Register notice Petitioners Robarge and CSPZ made no attempt to file comments or intenene within the time required by Commission regulations, though, in fact, they have been aware of the license amendments for some time. Mr. Robarge is discussed in Mr. Dienethat's earlier petition and described as a fact and expert witness y,hom Mr. Dienethal will use to prove his case. CSPZ is co directed by Mr.
Dienethat and Mr. Roberge. Petition at 2. Therefore, Petitioners can not show good cause for failure to file on time. In addition, as noted in previous filings before this Board, Petitioner Dienethat has not demonstrated monthat to intervene. See " Commonwealth Edison Company's Reply To Petitioner's Amended Petition To Intervene," dated August 18,1998, and "NRC Staff's Response To Amended Petition To Intervene Filed By Edwin D. Dienethat," dated August 18,1998. Petitioners CSPZ and Roberge also have failed to demonstrate any specific harm that occurs to them as a result of implementation of the license amendments and, therefore, also lack standing.
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l' handlers. As a result, the NRC Operators Licenses of the Zion' operators have been L
terminated and Zion no longer has licensed operators or a training program to license operators. INPO certification of the operator training program has also been withdrawn.
. IfZion was forced to use licensed operators instead of certified fuel handlers, Zion would have to reinstate a licensed operator training program and relicense an entire class of '
employees, which would require more than a year. Such a task would impose substantial expense and hardship on Comed.
Finally, there is an overriding public interest in denying the stay request.
Petitioners are attempting to subvert or simply ignore longstanding and clear Commission practice and regulations. Such efforts are " contrary to the public interest which mandates us... to complete license application proceedings within a reasonable time with due regard for the rights of the parties." Public Service Company of New Hamoshire,31 NRC l
at 260.
2.
Petitioner's Stav Request Is Moot And Should Be Dismiccad
' As described above, after receiving no comments on its proposed No Significant Hazards Consideration determination, the NRC staff made a final No Significant Hazards Consideration determination and on July 24,1998, issued the license amendments on an immediately effective basis and required Comed to implement the amendments within 30 days. In' compliance with this requirement, Comed has implemented the amendments.
I Therefore, as a practical matter, there exists nothing to stay. Where the action complained 1
ofin a stay request is already complete, there is nothing to stay and the request is moot..
Texas Utilities Electric Comoany (Comanche Peak Steam Electric Station, Unit 2), CLI-93-11,37 NRC 251,254 (1993). Such is the case here. The Technical Specifications have already been changed and implemented. Licensed operators have been replaced with i
certified fuel handlers, operators' licenses have been terminated, and the operator licensing program terminated. In sum, the actions that would be stayed have already occurred, and a stay (which can operate only prospectively) would grant Petitioners no relief.
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Petitioners' opponunity to request a stay, if such an opportunity ever existed, was before the amendments were issued. The instant stay request, coming after the amendments were issued by the NRC staff and implemented by Comed, is untimely.
Petitioners' " failure to submit a timely stay request is sufficient grounds, in and ofitself, to deny their petition." Babcock and Wilcox, 36 NRC at 262.
CONCLUSION For the reasons set forth above, Petitioners request to obtain review of the NRC stafi's "No Significant Hazards Consideration" determination is expressly prohibited by NRC regulations and administrative decisions. Accordingly, the petition must be denied.
Petitioners' request for a stay of the No Significant Hazards Consideration determination is similarly prohibited, does not meet the Commission's requirements for the granting of a stay, and is also moot. Therefore, the stay request must be denied.-
ectfully su l
(Y i
diand W. Jenkihs,($6 Coun 1 Roben E. Helfrich Sr. Coun el COMMONWEAL ON COMPANY Law Department, Room 1535 125 South Clark Street P.O. Box 767 Chicago, IL 60603 (31.?)394-4970 Philip E. Troy 6531 Chestnut Grove Lane DATED: 08/31/98 Charlotte, NC 28210 12
DOCKETED l
USNRC CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Response to Petiti n tokterheneNnitial
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Statement of Contentions and Request for Stay was served via posgrepaidfist-class ma ADJUDf:WF F7 by overnight express mail to those persons indicated by an asterisk [*]) on this 31st day of'FF 1998, on the following persons.
Thomas S. Moore, Chairman
- Office of the Secretary (original & 2 copies)*
Atomic Safety and Licensing Board Panel ATTN: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint Plaza, Mail Stop T-3 F23 One White Flint Plaza 11555 Rockville Pike 11555 Rockville Pike Rockville MD 20850 Rockville MD 20850 Dr. Jerry R. Kline*
Office ofCommission Appellate Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 One White Flint Plaza, Mail Stop T-3 F23 11555 Rockville Pike Adjudicatory File (2 copies)
Rockville MD 20850 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Dr. Frederick J. Shon*
Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Stephen M. Kohn, Esq.*
f One White Flint Plaza, Mail Stop T-3 F23 Michael D. Kohn, Esq.
11555 Rockville Pike David K. Colapinto, Esq.
Rockville MD 20850 Kohn, Kohn, & Colapinto, P.C.
3233 P Street, N.W.
Sherwin E. Turk, Esq.*
Washington D.C. 20007 Robert M. Weisman, Esq.*
U.S. Nuclear Regulatory Commission Office of the General Counsel i
One White Flint Plaza Mail Stop 15-B 18 f
11555 Rockville Pike i]
Rockville, MD 20850 BY:
A DKid W. Jenkins f
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l Senior Counsel COMMONWEAL ON COMPANY s
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