ML082880540

2008/10/14-LB Memorandum and Order (Denying Request for Hearing) (LBP-08-20)

ML082880540
Person / Time
Site:	Seabrook
Issue date:	10/14/2008
From:	Elleman T S, Froehlich W J, Hawkens E R Atomic Safety and Licensing Board Panel
To:	Florida Power & Light Energy Seabrook, Saporito Energy Consultants
SECY RAS
References
50-443-LA, ASLBP 08-872-02-LA-BD01, LDP-08-20, RAS 1315
Download: ML082880540 (7)

Text

LBP-08-20

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

William J. Froehlich, Chairman E. Roy Hawkens Thomas S. Elleman In the Matter of FPL Energy Seabrook, LLC Seabrook Station, Unit 1

(License Amendment Request)

Docket No. 50-443-LA ASLBP No. 08-872-02-LA-BD01

October 14, 2008 MEMORANDUM AND ORDER (Denying Request for Hearing)

Before the Licensing Board is a request for hearing 1 filed by Saporito Energy Consultants by and through its President, Thomas Saporito (Petitioner or SEC).

2 This docket concerns a February 8, 2008 license amendment request (LAR) proposing a revision to the technical specifications filed by FPL Energy Seabrook, LLC (FPL or Applicant) for Seabrook

1 This is the fourth of a recent series of hearing requests by this Petitioner that consist of unsupported allegations. See, e.g., Request for Hearing and Leave to Intervene (Aug. 20, 2008) (regarding Point Beach License Amendment); Request for Hearing and Leave to Intervene (Aug. 18, 2008) (regarding Turkey Point License Amendment); Request for Hearing and Leave to Intervene (July 2, 2008) (regarding St. Lucie confirmatory order). This is also the third of those four proceedings in which this Petitioner has improperly attempted to supplement its initial contentions in its reply. See Petitioner's Response to Answers by the Nuclear Regulatory Commission Staff and by the Florida Power and Light Company (Sept. 20, 2008)

(Point Beach); Petitioner's Response to Answers by the Nuclear Regulatory Commission Staff and by the Florida Power and Light Company (Sept. 16, 2008) (Turkey Point).

2 Request for Hearing and Leave to Intervene (August 29, 2008) [hereinafter SEC Request].

Station, Unit 1, in Rockingham County, New Hampshire. For the reasons discussed below, we deny SEC's hearing request. First, as in its recent pleadings in other cases (supra note 1), SEC fails to show that it has standing. Specifically, SEC has not identified any harm, much less any harm to itself, that would result if the Applicant's LAR is approved, nor has SEC shown how, should the LAR be rejected, any asserted injury would be remedied. Even if SEC had standing, its proffered contentions challenge the proposed license amendments as failing to meet the various parts of the 10 C.F.R. § 50.92(c) standard for significant hazards consideration determinations.

3 As such, the contentions are not appropriate for review by this Licensing Board under 10 C.F.R. § 50.58(b)(6), which provides that "[n]o petition or other request for review of or hearing on the staff's significant hazards consideration determination will be entertained by the Commission. The staff's determination is final, subject only to the Commission's discretion, on its own initiative, to review the determination." In short, SEC's impermissible attempt to challenge the Staff's significant hazards consideration determination in derogation of section 50.58(b)(6) provides an independent basis for rejecting the hearing request.

4 3 Contention 1 asserts that the proposed amendment "increases the probability or consequences of an accident previously evaluated," Contention 2 asserts that the proposed amendment "creates the possibility of a new or different accident from any accident previously evaluated," and Contention 3 asserts that the amendment "involves a significant reduction in a margin of safety." SEC Request at 3-4. These contentions quote almost verbatim the language of 10 C.F.R. § 50.92(c)(1)-(3).

4 See also 15 Fed. Reg. 7744, 7759 (Mar. 6, 1986) ("[T]he Commission has modified § 50.58(b)(6) to state that only it on its own initiative may review the staff's final no significant hazards consideration determination"); Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-07, 53 NRC 113, 117-18 (2001) (rejecting "petition for review and request for immediate suspension and stay of the NRC staff's no significant hazards determination and issuance of license amendment for Harris spent fuel pool expansion" under 10 C.F.R.

§ 50.58(b)(6)); Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), LBP-98-24, 48 NRC 219, 222-23 (1998) ("The Licensing Board has no jurisdiction to consider an intervention petition seeking to challenge a Staff's final no significant hazards consideration determination.").

Additionally, SEC's hearing request may be rejected on the alternative ground that it fails to satisfy the contention admissibility requirements set forth in 10 C.F.R. § 2.309(f)(1), all of which must be met for a contention to be admissible.

5 Specifically, the Petitioner has failed to provide a brief explanation of the basis for its contentions, 6 provide supporting facts or expert opinion, 7 or raise a genuine dispute of material fact or law with the Applicant.

8 On October 3, 2008, FPL moved (1) to strike SEC's reply for improperly raising new arguments, and (2) to certify to the Commission the question of whether to impose sanctions on SEC for abusing the administrative process.

9 SEC opposes FPL's motion.

10 Although we believe that FPL supports its motion to strike with compelling arguments, we decline to grant the requested relief, because our conclusions that SEC lacks standing and impermissibly seeks to challenge the Staff's significant hazards consideration determination mandate the rejection of the hearing request, thereby rendering FPL's motion to strike moot. We likewise decline to grant FPL's request to certify. NRC regulations permit "[a]ny person whose interest may be affected by a proceeding and who desires to participate as a party [to] . . . file a written request for hearing and a specification of the contentions which the person seeks to have litigated in the hearing.'"

11 The Commission and the licensing board have imposed sanctions against a party

5 Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991).

6 10 C.F.R. § 2.309(f)(1)(ii). Instead, the Petitioner's proffered contentions merely challenge the Staff's significant hazards consideration determinations. SEC Request at 3-4.

7 10 C.F.R. § 2.309(f)(1)(v).

8 Id. 2.309(f)(1)(vi).

9 FPL's Motion to Strike Saporito's Reply and For Sanctions (Oct. 3, 2008).

10 Petitioners' Opposition to FPL Energy Seabrook, LLC's Motion to Strike Saporito's Reply and for Sanctions (Oct. 4, 2008).

11 10 C.F.R. § 2.309(a).

seeking to file a written request for hearing only when that party "has not followed established Commission procedures."

12 Here, although we find on the merits that SEC lacks standing, impermissibly seeks to challenge the Staff's significant hazards consideration determination, and fails to proffer an admissible contention, we are reluctant to conclude at this juncture that SEC has transgressed Commission procedures to such an extent that sanctions ought to be imposed. A meritless petition warrants denial, not sanctions. The Petitioner should be aware, however, that repeated filings of meritless petitions may result in their summary denial, and repeated violations of Commission procedures may give rise to sanctions. In sum, as the licensing boards found in Turkey Point 13 and Point Beach

, 14 we find that the Petitioner (1) fails to demonstrate standing as required by 10 C.F.R. § 2.309(d), (2) impermissibly attempts to challenge the Staff's significant hazards consideration in derogation of 10 C.F.R. 50.58(b)(6), and (3) fails to proffer an admissible contention as required by 10 C.F.R.

§ 2.309(f). For each of these reasons, we deny the hearing request and terminate this proceeding. For the foregoing reasons it is on this 9th day of October 2008, ORDERED that: 1. The hearing request of Saporito Energy Consultants by and through its President, Thomas Saporito regarding FPL's February 8, 2008 license amendment request is denied. 2. FPL's motion to strike SEC's reply and to certify its question to the Commission regarding the imposition of sanctions against Mr. Saporito is denied.

12 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-06-04, 63 NRC 32, 38 (2006). See also Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-07-28, 66 NRC 275, 275 (2007).

13 Florida Power & Light Co. (Turkey Point Nuclear Plant, Units 3 and 4), LBP-08-18, 68 NRC __ (slip op.) (Oct. 9, 2008).

14 Florida Power & Light Co. (Point Beach Nuclear Plant, Unit 1), LBP-08-19, 68 NRC __ (slip op.) (Oct. 9, 2008).

3. In accordance with the provisions of 10 C.F.R. § 2.311, any appeal to the Commission from this Memorandum and Order must be taken within ten (10) days after it is served.

THE ATOMIC SAFETY AND LICENSING BOARD 15

/RA/ William J. Froehlich, Chairman ADMINISTRATIVE JUDGE

/RA/

E. Roy Hawkens ADMINISTRATIVE JUDGE

/RA/ Thomas S. Elleman ADMINISTRATIVE JUDGE

Rockville, Maryland October 14, 2008

15 A copy of this Memorandum and Order was sent this date by the Agency's E-Filing System to: (1) Counsel for the NRC Staff; (2) Counsel for FPL; and (3) Thomas Saporito.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

FPL ENERGY SEABROOK, LLC ) Docket No. 50-443-LA (Seabrook Station, Unit 1) )

) (License Amendment) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (DENYING REQUEST FOR HEARING) (LBP-08-20), dated October 14, 2008, have been served upon the following persons by the Electronic Information Exchange.

U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel

Mail Stop: T-3F23 Washington, DC 20555-0001

William J. Froehlich, Chair Administrative Judge E-mail: wjf1@nrc.gov

E. Roy Hawkens

Administrative Judge E-mail: erh@nrc.gov

Thomas S. Elleman

Administrative Judge

E-mail: tse@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel

Mail Stop: O-15D21 Washington, DC 20555-0001

Jessica Bielecki, Esq.

E-mail: jab2@nrc.gov Lloyd Subin, Esq.

E-mail: lbs3@nrc.gov Brian Newell, Paralegal

E-Mail: bpn1@nrc.gov OGC Mail Center E-mail: OGCMailCenter@nrc.gov U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O-16C1 Washington, DC 20555-0001

OCAA Mail Center E-mail: ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O-16C1 Washington, DC 20555-0001

Hearing Docket E-mail: hearingdocket@nrc.gov

Docket No. 50-443-LA LB MEMORANDUM AND ORDER (DENYING REQUEST FOR HEARING) (LBP-08-20) 2 FPL Energy Seabrook, LLC

700 Universe Boulevard P. O. Box 14000 Juno Beach, FL 33408-0420 Mitchell Ross, Esq.

E-mail: mitch.ross@fpl.com Antonio Fernandez, Esq.

E-mail: antonio.fernandez@fpl.com FPL Energy Seabrook, LLC 801 Pennsylvania Avenue, N.W.

Suite 220 Washington, DC 20004 Steven C. Hamrick, Esq.

E-mail: steven.hamrick@fpl.com Saporito Energy Consultants Post Office Box 8413 Jupiter, FL 33468-8413

Thomas Saporito, President E-mail: saporito3@gmail.com

[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the Commission

Dated at Rockville, Maryland

This 14 th day of October 2008