ML20248M057

NRC Staff Response to Citizens Regulatory Commission Petition to Intervene.* Citizens Regulatory Commission Failed to Establish Standing to Intervene & Petition Should Be Denied.W/Certificate of Svc

ML20248M057
Person / Time
Site:	Millstone
Issue date:	06/10/1998
From:	Bachmann R NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#298-19183 LA-2, NUDOCS 9806120303
Download: ML20248M057 (9)

Text

.f l9/0 DOCKETED June 46,.TM8 UNITED STATES OF /.MERICA

% JUN 10 P4 :04 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOAR @FFICE 0: SEO L, ~R}&

RULEP.% 3 a J l In the Matter of )

)

NORTHEAST NUCLEAR ENERGY COMPANY ) Docket No. 50-423-LA-2 l )

l (Millstone Nuclear Power Station, )

Unit No. 3) )

l NRC STAFF'S RESPONSE TO CITIZENS REGULATORY' L COMMISSION'S PETITION TO INTERVENE l

INTRODUCTION Pursuant to 10 C.F.R. l 2.714(c), the staff of the Nuclear Regulatory Commission (Staff) hereby responds to the May 21,1998 petition for leave to intervene filed by the Citizens Regulatory Commission (CRC).8 For the reasons set forth below, the Staff submits that CRC has not demonstrated its standing to intervene in this matter, as required by 10 C.F.R. l 2.714; accordingly, its petition for leave to intervene should be denied.

BACKGROUND On April 1,1998, Northeast Nuclear Energy Company (NNECO) submitted a request for a r.

I license amendment pursuant to 10 C.F.R. i 50.90 for Millstone Nuclear Power Station, Unit No. 3.

On ~ April 22,1998, the NRC published a Notice ofConsideration of/ssuance ofAmendments to Facility Operating Licenses, ProposedNo Sigmpcant Hazards Consideration Determination, and Opportunityfor a Hearing. 63 Fed. Reg. 19964-19966,19974-19975.

8 Citizens Regulatory Commission Petition for Leave to Intervene (Petition).

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, The Notice provided a description of the amendment request:

. The proposed revision to the Millstone Unit 3 licensing basis would add a new sump pump subsystem to address groundwater inleakage through the containment basemat.

63 Fed. Reg.19974.

i The Notice further provided that by May 22,1998: l l

any person whose interest may be affected by this proceeding and who wishes to j participate as a party in the proceeding must file a written request for a hearing and l a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's ' Rules of Practice for Domestic Licensing Proceedings' in 10 C.F.R. Part 2. ,

~ Id. at 19965.

As stated above, on May 21,1998, CRC filed its Petition with the Commission. On June 1, 1998, an Atomic Safety and Licensing Board (Board) was established to preside over the proceeding.

For the reasons set forth below, CRC has not met the standing requirements of 10 C.F.R. I 2.714.

l CRC's Petition should, therefore, be denied.

DISCUSSION

'A. Legal Requirements for Intervention.

Any person or entity who requests a hearing or seeks to intervene in a Commission

. proceeding must demonstrate that it has standing to do so. Section 189a(1) of the Atomic Energy

- Act of1954, as amended,42 U.S.C. I 2239(a)(the Act or AEA), provides:

In any proceeding under this Act, for the granting, suspending, or l amending of any license . . ., the Commission shall grant a hearing upon the request ofanyper.at whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding."

Id; emphasis added.

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. The Commission's regulations in 10 C.F.R. Q 2.714(a)(2) provide that a petition to intervene, inter alia, "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 pennitted to intervene, with panicular reference to the factors set forth in [l 2.714(d)(1)]."

Pursuant to 10 C.F.R. Q 2.714(d)(1), in ruling on a petition for leave to intervene or a request for hearing, the presiding officer or Licensing Board is to consider:

l (i) The nature of the petitioner's right under the Act to be made a

! party to the proceeding.

l (ii) The nature and extent of the petitioner's property, financial, or otherinterest in the proceeding.

(iii) The possible effect of any order that may be entered in the proceeding on the petitioner's interest.

Finally, a petition for leave to intervene must set forth "the specific aspect or aspects of the subject matter of the proceeding as to which the petitioner wishes to intervene." 10 C.F.R. 6 2.714(a)(2).

l An " aspect" is broader than a " contention" but narrower than a general reference to the Commission's operating statutes. Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-78-27, 8 NRC 275,278 (1978). A Board lacksjurisdiction to consider an intervention petition in which the l

aspect of the proposed intervention is not within the scope of the proceeding. Philadelphia Electric Co. (Limerick Generating Station, Unit 1), LBP-86-9,23 NRC 273,277 (1986).

1 In determining whether a petitioner has established the requisite interest, the Commission applies contemporaneousjudicial concepts of standing. GulfStates Utihties Co. (River Bend Station, f

l- Unit 1), CLI-94-10,40 NRC 43,47 (1994). In order to establish standing, a petitioner must show that the proposed action will cause " injury in fact" to the petitioner's interest and that the injury is 1

-4 arguably within the " zone ofinterests" protected by the statutes governing the proceeding. Id In Commission proceedings, the injury must fall within the zone ofinterests sought to be protected by the AEA or the National Environmental Policy Act. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-2,21 NRC 282,316 (1985). The alleged interest must be concrete and particularized, fairly traceable to the challenged action, and likely to be redressed by a favorable decision. Gcorgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), CLI-93-16, 38 NRC 25,32 (1993) citing Lujan v. Defenders of Wildhfe, 504 U.S. 555 (1992). To establish injuryin fact and standing, the petitioner must establish (a) that he personally has sufered or will suKer a " distinct )

and palpable" harm that constitutes injury in fact; (b) that the injury can fairly be traced to the challenged action; and (c) that the injury is likely to be redressed by a favorable decision in the proceeding. Dellums v. NRC,863 F.2d %8,971 (D.C. Cir.1988); Vogtle, supra,38 NRC at 32; Babcock and Wilcox (Apollo, PA Fuel Fabrication Facility), LBP-93-4, 37 NRC 72, 81 (1993). A determination that the injury is fairly traceable to the challenged action does not depend "on whether the cause of the injury flows directly from the challenged action, but whether the chain of causation is plausible." Sequoyah Fuels Corp. (Gore, Oklahoma Site), CLI-94-12,40 NRC 64,75 (1994).

Finally, it must be likely, rather than speculative, that a favorable decision will redress the injury.

Lujan v. Defenders of Wildhfe, 504 U.S. 555, 561; (l992); Sequoyah Fuels, 40 NRC at 71-72.

In order for an organization to establish standing, it must either demonstrate standing in its own right or claim standing through one or more individual members who have standing. See Georgia 1nstitute of Technology (Georgia Tech Research Reactor), CLI-95-12,42 NRC 111,115 (1995). Thus, an organization may meet the injury in fact test either (1) by showing an efect upon its organizationalinterests, or (2) by showing that at least one ofits membe. .ould suKer injury as L_ _ _ - - - - _ _ _ - - _ - - - - _ - - - - - - _ _ - - - _ _ _ - - - - - _ _ - - - - -

. a result of the challenged action, sufficient to confer upon it " derivative" or " representational" standing. Houston Lighting andPower Co. (South Texas Project Units 1 and 2), ALAB-549, 9 NRC 644, 646-47 (1979), affg LBP-79-10, 9 NRC 439, 447-48 (1979). An organization seeking to intervene in its own right must demonstrate a palpable injury in fact to its organizational interests that is within the zone ofinterests protected by the Atomic Energy Act or the National Environmental ,

Policy Act, Florida Power andLight Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

ALAB-952,33 NRC 521,528-30 (1991). Where the organization relies upon the interests ofits l

members to confer standing upon it, the organization must show that at least one member who would possess standing in his individual capacity has authorized the organization to represent him. Georgia Institute of Technology, 42 NRC at 115; Houston Lighting andPower Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535,9 NRC 377,393-94,396 (1979). {

l B. CRC Has Failed to Establish Standing to Intervene CRC has failed to establish its standing to intervene in this proceeding in that (1) it has not identified members of CRC who have authorized CRC to represent them;2 (2)it has not shown an

" injury in fact" to its interests or an interest ofits members that is fairly traceable to the license amendment request; (3)it has not set forth any aspect of the proposed intervention that is within the scope of the proceeding.

With regard to its members, CRC merely states that it " includes members who reside with their young children within the five-mile priority emergency evacuation zone of the Millstone Station." Petition at 1. This statement is totally insufficient to fulfill the requirement ofidentifying a member with individual standing who has authorized CRC to represent him.

2 It does not appear that CRC is asserting organizational standing.

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f* Second, CRC has not even alleged, much less shown, an injury in fact that would be caused by the issuance of the amendment. This amendment, if approved, will change the Millstone Unit 3 licensing basis to include a new sump pump subsystem to address groundwater inleakage through the containment basemat. The basis for NNECO's license amendment request is 10 CFR 50.59(c), which requires an application for a license amendment to be submitted for, inter alia, a change in the facility as described in the safety analysis report when the change involves an unreviewed safety question as l defined in 10 CFR 50.59(a)(2). As stated in NNECO's April 1,1998 license amendment request, a Millstone Unit 3 configuration management program review revealed that inleakage of groundwater i has the potential to flood engineered safety features (ESP) building sumps if the existing nonsafety-related sump pumps fail to operate. If the sumps are not pumped out, the groundwater could

! cventually affect both trains of the meirculation' spray system (RSS).3 In the past, the Millstone Unit l

3 licensing basis credited a waterproof membrane, which is encased in the containment substructure, to protect the structure from the effects of groundwater inleakage. However, degradation of the l waterproofmembrane has been detected, allowing groundwater inleakage. To address the issue of

. groundwater inleakage, two safety-related, air-driven sump pumps were installed in the sumps.

Section 50.59(a)(1) permits such a change without prior Commission approval unless the change involves an unreviewed safety question. NNECO determined that the change involved an unreviewed safety question and submitted the license amendment request at issue.

As noted in the Federal Register notice, the amendment is a " proposed revision to the Millstone Unit 3 licensing basis." 63 Fed. Reg. at 19974. In other words, the amendment would permit NNECO to revise its FSAR to include a new sump pump subsystem to address groundwater 3 The RSS system is part of the Millstone Unit 3 emergency core cooling system.

'. inleakage through the containment basemat. CRC has made no showing of an injury to it or any of its members as a result of this revision to the FSAR.

Finally, CRC has not set forth any aspects of the subject matter of the proceeding which are within the scope ofthe proceeding. CRC states nineteen " objections" to the requested amendment.

Petition at 2-5. Assuming these " objections" were meant to be considered as Espects, none of them are within the scope of this proceeding, i.e., whether NNECO may amend the Millstone Unit 3 license in order to revise the FSAR to address the new sump pump subsystem.

CONCLUSION I CRC has failed to establish its standing to intervene in this proceeding by not identifying members of CRC who have authorized CRC to represent them; by not showing an " injury in fact" to its interests or an interest ofits membersi and by not setting forth any aspect of the proposed intervention that is within the scope of the proceeding. Therefore, CRC's Petition should be denied.

respectfully submitted, M /

Richard G. B Counsel for C Staff Dated at Rockville, Maryland this 10th day ofJune 1998 L---___-_------___------_---_-_------------_--------_ -- . - - - - - - - - - - _ -

DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION

'96 JUN 10 P4.05 BEFORE THE ATOMIC SAFETY AND LICENSING 3,OARD 9

In the Matter of ) O g {7] gi

) ADJUDr C JJTAFF NORTHEAST NUCLEAR ENERGY COMPANY ) Docket No. 50-423-LA-2

)

. (Millstone Nuclear Power Station, )

Unit No. 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the "NRC STAFF'S RESPONSE TO CITIZENS REGULATORY

. COMMISSION'S PETITION TO INTERVENE"in the above-captioned proceeding have been served on the following through deposit in the Nuclear Regulatmy Commission's internal mail system, or by deposit in the United States mail, first class. as indicated by an asterisk this 10th day of June,1998:

Thomas S. Moore, Chairman Dr. Richard F. Cole Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. Charles N. Kelber Office of the Secretary Atomic Safety and Licensing Board Panel ATTN: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Adjudicatory File (2) Atomic Safety and Licensing Board Panel l Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission i L

U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555

Lillian M. Cuoco, Esq.* Nancy Burton, Esq.*

! Northeast Utilities Service Company 147 Cross Highway P.O. Box 270 Redding Ridge, CT 06876 l Hartford, CT 06141 L

Office of Commission Appellate David A. Repka, Esq.*

Adjudication Winston & Strawn Mail Stop O-16G15 1400 L Street, N.W.

U.S. Nuclear Regulatory Commission Washington, DC 20005 Washington, DC 20555

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/MIErian L. Zobler Counsel for NRC

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