ML20248K390
| ML20248K390 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 06/05/1998 |
| From: | Repka D NORTHEAST NUCLEAR ENERGY CO., WINSTON & STRAWN |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#298-19179 LA-2, NUDOCS 9806100100 | |
| Download: ML20248K390 (13) | |
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lf/ 7f DOCKETED USHRC June 5,1998
% JUN -8 P1 :16 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFRCE OF SF %!W RULEMtB L sko ADJUD!CAllO% diAFF BEFORE THE ATOMIC SAFETY AND LICENSING BOARD in the Matter of: )
) Docket No. 50-423-LA-2 Northeast Nuclear Energy Company )
)
(Millstone Nuclear Power Station, )
Unit No. 3) )
NORTHEAST NUCLEAR ENERGY COMPANY'S
. ANSWER TO REQUEST FOR A IIEARING AND PETITION TO INTERVENE:
SUMP PilMP StJESYSTEM APPROVAL I. INTRODUCTION In accordance with 10 C.F.R. Q 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 May 21,1998 by the Citizens Regulatory Commission (" CRC"). The Petition responds to a notice of proposed action, opportunity for hearing, and proposed "no significant hazards consideration" determination published in the Federal Register on April 22,1998 (63 Fed. Reg. 19964,19974) (" Notice").
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4 The Notice relates to a revision to the Millstone Unit 3 .'icensing basis proposed by NNECO by application of April 1,1998.1' CRC's Petition is virtually identical to a petition filed by CRC on April 23,1998, reque: ting a hearing on a separate NNECO amendment application.2' As discussed below, CRC in the current Petition has not satisfied the Commission's requirements for standing to intervene on this matter. Under 10 C.F.R. s 2.714, the Petition should be denied.
II. BACKGROUND A. Ihe Annmval at issue Millstone Unit 3 is located in Waterford, Connecticut. The unit has been shut down since March 1996 in order to address numerous regulatory and performance issues. Restart is contingent upon Commission approval. NNECO anticipates approval for restart of the unit shortly.
Throughout the duration of the shutdown period, NNECO has, among numerous improvement activities, been identifying and addressing various technical and regulatory issues and has been verifying adequacy of the plant configuration, operating procedures, and licensing basis documents --including the Unit 3 Updated Final Safety Analysis Report ("UFSAR"). As part of these reviews, NNECO has identified a problem related to groundwater inleakage presumed to be through the containment basemat liner. The current UFS.AR assumed that there would not be substantial inleakage due to a waterproof membrane that encases the containment substructure.
l' NNECO (M.L. Bowling, Jr.) Letter to NRC (Document Control Desk), B17141, " Proposed License Amendment RequestNESF Building Sump Pumping Subsystem (PLAR 3-98-2),"
Docket No. 50-423, April 1,1998 (" Application").
2' On May 22,1998 NNECO responded to that petition, related to a change in the licensing basis for the Recirculation Spray System to reflect a 1986 change in the operation of the system.
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However, NNECO has determined that in fact there can be groundwater inleakage, apparently due l
to degradation of the waterproof membrane.
As described in the Application, there are sumps located in the Engineered Safety Features ("ESF") building. Any groundwater inleakage that occurs is directed to these ESF building i
sumps. NNECO determined that if this water is not removed, it might eventually affect operation of the Recirculation Spray System ("RSS"). This condition was reported to the NRC in a Licensee Event Report.
To correct the problem, NNECO identified a design change involving installation ci' i
two safety-related, air-driven sump pumps in the ESF building sumps. In addition, NNECO developed a revision to the UFSAR to reflect the potential for groundwater inleakage and to describe the sump pumps. Pursuant to 10 C.F.R. Q 50.59, NNECO determined that these changes require NRC review and approval. Accordingly, by the Application dated April 1,1998, NNECO applied pursuant to 10 C.F.R. 50.90 for NRC approval of the changes. The approval at issue in the Notice is thus narrowly defined and focused on resolving one issue -- the potential that unabated groundwater inleakage to the ESF building sumps could affect operability of the RSS. j B. The NRC's Standing Requirements The Petition must meet the NRC's well-established standing requirements. Under 10 C.F.R. { 2.714(a)(1) the Petition must:
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. . . set forth with particularity the interest of the j petitioner in the proceeding, how that interest may be j affected by the results ofthe proceeding, 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 speci/lc 1 aspect or aspects of the subject matter of the j proceeding as to which petitioner wishes to intervene.
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10.C.F.R. Q 2.714(a)(2)(emphasis added).
The Commission, in Georgia _ Institute of Technology (Georgia Tech Research Reactor), CL1-95-12,42 NRC 111,115 (1995), summarized the established NRC. case law on .
applying the standing requirements of 10 C.F.R. @ 2.714(a)(2):
To determine whether a petitioner has alleged a sufficient interest to intervene, the Commission has long appliedjudicial concepts of standing. Cleveland Elec. Ithiminating Co. (Perry Nuclear Power Plant),
CL1-93-21, 38 NRC 87, 92 (1993) (PJ:IIy). For standing, the petitioner must allege a concrete and particularized injury that is fairly traceable to the challenged action ud likely to be redressed by a favorable decision. See generally Lujan v. Defenders of Wildlife,112 S. Ct. 2130,2136 (1992); Perry,38 NRC at 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). . . .
In addition, the Commission discussed (id.) the special standing requirements that apply to organizations such as CRC:
An organization may base its standing on either immediate or threatened injury to its organizational interests, or to the interests of identified members.
Warth v. Seldin. 422 U.S. 490,511 (1975); Houston Lighting & Power Co. (South Texas, Units 1 and 2),
ALAB-549,9 NRC 644,646-47 (1979). 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, CRC has not met these requirements. CRC has failed to meet the pleading requirements for an organizational petitioner, and has failed to demonstrate a particularized injury traceable to the narrow approval at issue in the Notice.
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111. DJSCIISSION A. Organi7ational Standing in Not Established The Petition is defective with respect to organizational standing. As recited in Georgia Tech, there are two routes by which an organization can attempt to demonstrate standing in an NRC hearing. First, it can assert injury to organizational interests, and demonstrate that these l
interests are protected by the Atomic Energy Act. See, e.g., Florida Power & I ight Co. (Turkey l
Point Nuclear Generating Plant, Units 3 and 4), ALAB-952,33 NRC 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 authorized the organization to represent him or her in the proceeding. Src, e.g., Verrnont Yankee Nuclear Power Corn, (Vermont Yankee Nuclear Power Station), LBP-87-7,25 NRC 116,118 (1987). The " concrete indication" should be provided " preferably by affidavit." Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-92-27,36 NRC 196,199 (1992).
Here CRC has failed in both regards. CRC has not asserted any organi7ational interest at stake that would be threatened with injury by the approval at issue. CRC appears to be seeking standing completely on the basis ofits members' individual interests (" members who reside with their young children within the five-mile priority emergency evacuation zone at the Millstone Station"). Setting aside whether nearby residence ofindividuals would be enough to establish 1
standing, the Petition is procedurally defective because CRC has neither identified any member with 1
nearby residence nor established that it is authorized to represent the interests of any such member, l
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l B. Earticulari7ed Harm is Not Demonstrated Even if the procedural deficiency could be ignored (and precedent firmly establishes that it cannot be), CRC has failed to demonstrate "with particularity" the interest that might be affected by the results of the proceeding. CRC essentially seems to rely again, as in its prior petition, I upon the nearby residence ofits unidentified members and young children, and a presumption that this would confer standing in an NRC adjudicatory proceeding. However, in a license amendment proceeding such as this one, the Commission requires a particularized showing of harm or injury that might result from the nmendment at issue. Where standing is based on nearby residence, 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). CRC has not even significantly updated its boilerplate petition to address the particulars of the approval at issue in the Notice. Thus, it has not shown any particularized harm traceable to the amendment at issue.
CRC's Petition is not at all focused on the approval at issue; it does not assert, much less demonstrate, any particularized offsite injury that could result from the new sump pumps, or even from groundwater inleakage. Rather, CRC's Petition can be characterized as a generalized assault on NNECO's present management skills and motives, NNECO's engineering competence, recent unrelated RSS modifications and operating experience as described in 'an attached press account, past operation of Millstone Unit 3 with an allegedly inoperable RSS, the " employee environment" at Millstone Station, and the compensation and alleged motives of NNECO's management. These issues are all outside the scope of this proceeding. If these are the " specific aspects of the subject matter of the proceeding as to which the petitioner wishes to intervene," as required under 10 C.F.R. Q 2.714(a)(1), they are all deficient. Standing cannot be premised on 6-
" aspects" that are not within the scope of the proceeding. Philadelphia Electric Co. (Limerick Generating Station, Unit 1), LBP-86-9,23 NRC 273,277 (1986). In a sense, CRC is merely asserting standing based upon nearby residence and an injury that would allegedly result from restart and operation ofMillstone Station generally, because of NNECO's alleged lack ofcompetence. This approach exceeds the scope of the approval at issue; CRC fails to demonstrate a particular harm that would result from this amendment.2' CRC primarily lists in its Petition past problems and alleged injuries purportedly caused by NNECO, but such injuries, even illegitimate, fail to establish standing to intervene in this license amendment proceeding. In City of Los Angeles v. Lyons, the Supreme Court held that a plaintiff lacked standing to sue for an injunction barring the use of chokeholds by police officers in Los Angeles. 461 U.S. 95 (1983). Although the plaintiff claimed to have been injured by police chokeholds in the past, the Court held that his past injuries did not give him standing to sue for prospective relief. In order to establish standing to sue for injunctive relief, the plaintiff would have had to show that the threat ofinjury to him from police chokehdds was both "real and immediate."
Id. at 124. According to the I.yons result, any injuries suffered by the CRC in the past would have no bearing on the group's current standing to intervene in the present license amendment proceeding.
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Regardless of whether CRC has suffered injuries from other actions taken by NNECO and the NRC, the invocation of those injuries in the petition to intervene is inappo:dte. Any injury i that is not traceable to the action at issue in the instant proceeding will not establish standing l to intervene in the license amendment process. In Northwest Airlines. Inc. v. FAA. the D.C.
Court of Appeals heard an airline's request to intervene in the FAA's decision on the re_ instatement of an alcoholic pilot. 795 F.2d 195 (D.C. Cir.1986). Because the agency's decision concemed only the individual pilot's reinstatement, "all that (could] be challenged in [that] litigation (was] the determination that [the specific pilot was] fit to fly."Id. at 202.
l The narrow subject matter of the Millstone license amendment decision similarly precludes i
the CRC from challenging any NRC decision other than the decision to allow or disallow installation of sump pumps.
9 The petition r must instead identify injuries likely to occur in the future from approval of the license amendment, in order to establish standing to intervene in the matter.
CRC does speculatively assart that a theoretical"[f]ailure of the RSS system could be catastrophic." However, the sump pump subsystem at issue is designed precisely to address and prevent an inoperable RSS. It is incumbent upon CRC to demonstrate, with particularity, how offsite consequences could result from the amendment. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1, LBP-91-23,33 NRC 430,437 (1991) (" members' generalized, 1
unsupported claims that the [ challenged action] 'also represents a threat to my personal radiological health and safety and to my real and personal property' do not meet the regulatory standard" for intervention); cf, Sequoyah Fuels Com. (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 a direct injury). In this case CFC has not met this burden." CRC has aniculated no set of circumstances following the design and licensing basis change that could result in an inoperable RSS or offsite injury.
The Supreme Court has underscored that standing requirements are not permissive; standing requires a distinct, affimlative showing by a would-be intervenor. A prospective intervenor must show not only that he or she is within the zone ofinterests protected by the statute involved, but also that he or she will suffer a palpable " legal wrong because of the challenged agency action or [be] ads ersely affected or aggrieved by that action within the meaning of a relevant statute." Lujan V. National Wildlife Fed'n: 497 U.S. 871,883 (1990). To show that one is adversely affected or aggrieved by agency action within the meaning of a relevant statute, one must provide specific facts showing the manner in which the agency action causes harm. Id. At 884-85. Making general or conclusory allegations of harm without detailing specific ngency acts causing harm is not enough to establish standing. Id. At 884-89.
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IV. CONCLUSION For reasons set forth above, CPC's 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.
Respectfully submitted.
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David A. Repka 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 Dated in Washington, D.C.
this 5th day of June,1998
UNITED STATES OF AMERICA -
00CKETED NUCLEAR REGULATORY COMMISSION USNRC-BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
% JUN -8 P1 :16 In the Matter of: ) OFFICE 0: SEC'L AR)
) . Docket No. 50-423-LAGJL E'd4% 40 Nonheast Nuclear Energy Company ) ADJUD: CAT 0NC FJAFF
)
(Millstone Nuclear Power Station, )
Unit No. 3) )
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. 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 Court of Appeals Name of Party: Nonheast Nuclear Energy Company 107 Selden Street Berlin, Connecticut 06037 dbk dl_c 5
bavid A. Repka Winston & Strawn Counsel for Northeast Nuclear Energy Company Dated at Washington, District of Columbia this 5th day of June,1998 1
UNITED STATES OF AMERICA 00CKETED NUCLEAR REGULATORY COMMISSION USNRC BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 98 y g pj ;jg In the Matter of: )
) Docket Fa. 50-423-h.k,h,h5' y f Northeast Nuclear Energy Company ) ADJUDC/' e . 2g
)
(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. { 2.713(b), the following infomiation is provided:
Name: Lillian M. Cuoco Address: Senior Nuclear Counsel Northeast Utilities Service Company 107 Selden Street Berlin, Connecticut 06037 E-Mail: cuocolm@nu.com Telephone Number: (860) 665-3195 Facsimile Number: (860) 665-5504 Admissions: Court of Appeals for the State of New York District of Columbia Court of Appeals Name of Party: Northeast Nuclear Energy Company 107 Selden Street Berlin, Connecticut 06037 be m kl u eto
! Lillian M. Cuoco Senior Nuclear Counsel l Northeast Utilities Service Company Counsel for Northeast Nuclear Energy Company l Dated at Berlin, Connecticut j this W day ofJune,1998 i
t
4 UNITED STATES OF AMERICA 00CKETED NUCLEAR REGULATORY COMMISSION USNRC l BEFORE THE ATOMIC SAFETY AND LICENSING BOARD % JLN -8 P1 :16 OFFICE 0 S;m --rn In the Matter of: ) RULS.m';h a .n .
) Docket No. 50-423-LAQJUO7; r t m, AFF Northeast Nuclear Energy Company )
)
(Millstone Nuclear Power Station, )
Unit No. 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of" NORTHEAST NUCLEAR ENERGY COMPANT"S ANSWER TO REQUEST FOR A HEARING AND PETITION TO INTERVENE: SUMP PUMP SUBSYSTEM APPROVAL," and a" NOTICE OF APPEARANCE" for David A. Repka and Lillian M. Cuoco in the above-captioned proceeding, have been served on the following by deposit in the United States mail, first class, this 5th day of June,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. Dr. Richard F. Cole
- 147 Cross Highway Administrative Judge Redding Ridge, CT 06876 Atomic 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: Rulemaking and Adjudications U.S. Nuclear Regulatory Commission (original + two copies)
Washington, DC 20555-0001 Adjudicatory File Thomas S. Moore
- 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
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! Office ofCommission Appellate Adjudication Richard G. Bachmann, Esq.*
l U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555
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l David A. Repka l Winston & Strawn I Counsel for Northeast Nuclear Energy Company I
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