ML071790530

2007/06/28-Commission Memorandum and Order (CLI-07-21)

ML071790530
Person / Time
Site:	Big Rock Point  File:Consumers Energy icon.png
Issue date:	06/28/2007
From:	Annette Vietti-Cook NRC/SECY
To:
SECY RAS
References
50-155-LT, 72-043-LT, CLI-07-21, RAS 13810
Download: ML071790530 (8)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED 06/28/07 COMMISSIONERS SERVED 06/28/07 Dale E. Klein, Chairman Edward McGaffigan, Jr.

Jeffrey S. Merrifield Gregory B. Jaczko Peter B. Lyons

________________________________________

)

In the Matter of )

)

CONSUMERS ENERGY COMPANY ) Docket Nos. 50-155-LT &

) 72-043-LT (Big Rock Point ISFSI) )

_________________________________________)

CLI-07-21 MEMORANDUM AND ORDER On April 26, 2007, we issued a Memorandum and Order (CLI-07-19, 65 NRC __) finding that the three petitioners to intervene (Mr. Victor McManemy, Nuclear Information and Resource Service, and Dont Waste Michigan, collectively Petitioners) had failed to demonstrate individual or representative standing based on Mr. McManemys proximity to the Big Rock Point Independent Spent Fuel Storage Installation (ISFSI).1 Based on that finding, we denied their joint Petition to Intervene and terminated this adjudicatory proceeding regarding an application to transfer the NRC license for the ISFSI. On May 7, 2007, Petitioners submitted a Petition for Reconsideration of CLI-07-19, rearguing (in greater detail) that they have standing based on Mr. McManemys proximity to the ISFSI.2 1

Petitioners based their claims of standing solely on this ground. See Request for Hearing and Petition to Intervene at 1-2 (Feb. 20, 2007).

2 In their Petition for Reconsideration, Petitioners also seek to explain their failure to file a Reply Brief earlier in this proceeding and complain of our silence on the merits of their contentions. Petition for Reconsideration at 2, 6-7. We base todays decision solely on (continued...)

To succeed, a petition for reconsideration must demonstrate a compelling circumstance, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid.3 The Petition for Reconsideration does not satisfy this rigorous standard. We therefore deny it.

I. BACKGROUND In CLI-07-19, we found insufficient Mr. McManemys claim of residence within 50 miles of the Big Rock Point ISFSI. We pointed out that [w]e have required far closer proximity in . . .

license transfer cases for reactor operating licenses, and that we determine on a case-by-case basis whether the proximity presumption should apply, considering the obvious potential for offsite [radiological] consequences, or lack thereof, from the application at issue, and specifically taking into account the nature of the proposed action and the significance of the radioactive source.4 We then explained that, because an ISFSI is essentially a passive structure, the radiological risk from the transfer of its license is even lower than that from the transfer of a nuclear power plants operating license.5 From this, we concluded that Mr.

McManemys 50-mile proximity assertion did not qualify him for standing.

In their Petition for Reconsideration, Petitioners argue that, in license renewal adjudications, our agency has regularly granted standing to individuals residing, working or 2

(...continued)

Petitioners failure to demonstrate standing and therefore need not reach these other unrelated matters.

3 10 C.F.R. § 2.345(b). See also Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-06-27, 64 NRC 399, 400-01 (2006).

4 CLI-07-19, 65 NRC at __, slip op. at 3, quoting Exelon Generation Co. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-05-26, 62 NRC 577, 580-81 (2005).

5 CLI-07-19, 65 NRC at __, slip op. at 4.

engaging in recreation within 50 miles of the facility seeking license renewal,6 and that in one license transfer proceeding, we granted standing to a petitioner living within 35 miles of the licensed facility.7 Based on these precedents, they assert that we should have accorded standing to Mr. McManemy (and, through him, to Nuclear Information and Resource Service, and Dont Waste Michigan), because he lives about 40 to 42 miles . . . from Big Rock [Point],8 sails within 15 miles of it several times per year and within one mile of it every few years, and stops at a park within one mile of it several times a year to (among other things) collect water from an artesian well.9 In support, Petitioners submit a Supplemental Declaration from Mr.

McManemy, largely to the above effect.10 II. DISCUSSION Petitioners seeking reconsideration of a Commission order must satisfy a high standard:

the Commissions alleged error must be clear, petitioners argument must be new, and petitioners must not previously have been able to make that argument.

Petitioners here originally claimed only that their member, Mr. McManemy, lived within 50 miles of the Big Rock Point site. In CLI-07-19, we explained why this bare allegation did not suffice for standing to challenge transferring the license for the Big Rock Point ISFSI - which as we explained in CLI-07-19 is a passive structure whose potential to harm Mr. McManemy 50 6

Petition for Reconsideration at 3.

7 Id., citing Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2),

LBP-93-5, 37 NRC 96, affd, CLI-93-16, 38 NRC 25 (1993).

8 Petition for Reconsideration at 4. Petitioners also assert that any breach of the ISFSIs dry storage casks could release radioactive cesium which either wind or water could carry 42 miles. Id. at 5.

9 Id. at 4; Supplemental Declaration of Victor McManemy (May 7, 2007), appended to Petition for Reconsideration.

10 Supplemental Declaration of Victor McManemy.

miles away is hardly self-evident.11 On reconsideration, Petitioners have submitted a fresh declaration that, for the first time, specifies the distance from the ISFSI that Mr. McManemy resides (42 miles) and points to closer distances (1-15 miles) that he occasionally traverses.

This information comes too late. A petitioner cannot satisfy our standing requirement by offering a vague claim of 50-mile proximity in an initial petition and later using a petition for reconsideration to fill in gaps with more specific information that was available all along.12 Even were we to entertain Petitioners belated effort to substantiate their standing, we would not find their new information persuasive. Petitioners cite our 1993 Vogtle license transfer decision, where we allowed petitioners living within 35 miles of a reactor to challenge a license transfer. But Vogtle, like the various license renewal decisions Petitioners cite, involved an operating reactor, not simply an ISFSI. The difference in potential risk between a reactor and an ISFSI justifies treating the present case differently.13 We have, moreover, always treated Vogtle as an unusual, special case:

The petitioner in Vogtle alleged that he could suffer harm from the transfer of operating authority to a company that, according to him, lacked the character, competence, and integrity to safely operate the Vogtle plant, and lacks the candor, truthfulness, and willingness to abide by the regulatory requirements 11 CLI-07-19, 65 NRC at __, slip op. at 4. Cf. Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 191 (1999) (citations omitted), petition for review denied, Dienethal v. NRC, 203 F.3d 52 (D.C. Cir. 2000):

[G]iven the shutdown and defueled status of the units, the license amendments do not on their face present any obvious potential of offsite radiological consequences. . . . Because neither reactor will ever operate again, the scope of activities at the plant has been greatly reduced. . . . Accordingly the spectrum of accidents and events that remain credible is significantly reduced.

12 See generally 10 C.F.R. § 2.345(b) (A petition for reconsideration must demonstrate a compelling circumstance, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid (emphasis added)).

13 See Private Fuel Storage, LLC, CLI-01-22, 54 NRC 255, 265 (2001) (ISFSI failure would not pose nearly the same radioactive consequences as a reactor failure).

necessary to operate a nuclear facility. CLI-93-16, 38 NRC at 33. The petitioner also alleged that management had submitted material false statements to the Commission in order to obstruct an NRC investigation. Id. Those unusual circumstances are not present here.14 The current case contains no allegations similar to those in Vogtle. Post-Vogtle, our grants of standing based on a facilitys proximity to a petitioners residence have not approached the 40-42 miles separating Mr. McManemys house from the Big Rock Point ISFSI.

Indeed, the longest specific distance for which we have granted proximity-based standing in a post-Vogtle license transfer case is 6-61/2 miles.15 By contrast, we have denied proximity-based standing in license transfer proceedings to petitioners within 5-10 miles,16 12 miles,17 and 40 miles from licensed facilities.18 All these proceedings involved active, operating reactors. Thus, we deny the requested proximity-based standing claim in this case resting on a residence within 42 miles of an ISFSI or on occasional sailing trips within 15 miles.

This leaves only the question whether Mr. McManemys sporadic visits (sailing every few years and walking several times a year) to within about a mile of the ISFSI might qualify him for proximity-based standing. NRC licensing boards and the Commission itself have recognized proximity standing at such close distances where a petitioner frequently engages in substantial business and related activities in the vicinity of the facility,19 engages in normal, everyday 14 Peach Bottom, CLI-05-26, 62 NRC at 583 n.27 (emphasis added).

15 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),

CLI-00-20, 52 NRC 151, 163-64 (2000).

16 Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Units 1, 2, and 3),

CLI-00-18, 52 NRC 129, 132-33 (2000).

17 AmerGen Energy Co. (Three Mile Island Nuclear Station, Unit 1), CLI-05-25, 62 NRC 572, 576 (2005).

18 Peach Bottom, CLI-05-26, 62 NRC at 582.

19 Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), LBP-82-4, (continued...)

activities in the vicinity,20 has regular21 and frequent contacts22 in an area near a licensed facility, or otherwise has visits of a length and nature showing an ongoing connection and presence.23 Conversely, the agency has denied proximity-based standing where contact has been limited to mere occasional trips to areas located close to reactors.24 Mr. McManemys trips (sailing and walking) fall within this latter category of contacts.

19

(...continued) 15 NRC 199, 204 n.7 (1982) (emphases added).

20 Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 226 (1974) (emphasis added). See also Maine Yankee, LBP-82-4, 15 NRC at 204.

21 Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2; Watts Bar Nuclear Plant, Unit 1), LBP-02-14, 56 NRC 15, 26 (2002) (emphasis added) (frequency must reflect regular interaction with the zone of harm, not merely occasional contact).

22 Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 75 & n.22 (1994) (emphasis added). See also Sequoyah Nuclear Plant, LBP-02-14, 56 NRC at 26; Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-6, 53 NRC 138, 146, 148 (2001), affd on other grounds, CLI-01-17, 54 NRC 3 (2001).

23 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26, 32 (1998), petition for review docketed, No. 05-1419 (D.C. Cir. Nov. 7, 2005). See also Private Fuel Storage, CLI-99-10, 49 NRC 318, 324 (1999).

24 Sequoyah Nuclear Plant, LBP-02-14, 56 NRC at 26 (emphasis added). See also Washington Public Power Supply System (WPPSS Nuclear Project No. 2), LBP-79-7, 9 NRC 330, 338 (1979).

III. CONCLUSION For the reasons above, we deny Petitioners Petition for Reconsideration.

IT IS SO ORDERED.

For the Commission

/RA/

________________________

Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 28th day of June, 2007.

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

) Docket Nos. 50-155-LT CONSUMERS ENERGY COMPANY ) 72-043-LT

)

(Big Rock Point Plant) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-07-21) have been served upon the following persons by electronic mail this date, followed by deposit of paper copies in the U.S. mail, first class, or through NRC internal mail.

Office of Commission Appellate Lawrence J. Chandler, Esq.

Adjudication Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop - O-15 D21 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: ocaamail@nrc.gov Washington, DC 20555-0001 E-mail: ogclt@nrc.gov Terry J. Lodge, Esq. Douglas E. Levanway, Esq.

316 N. Michigan St., Suite. 520 Wise, Carter, Child, and Caraway Toledo, OH 43604 P.O. Box 651 E-mail: tjlodge50@yahoo.com Jackson, MS 39205 E-mail: del@wisecarter.com Sam Behrends, Esq. Kevin Kamps LeBoeuf, Lamb, Greene & MacRae 6930 Carroll Ave., Suite 340 1875 Connecticut Ave., NW, Suite 1200 Takoma Park, MD 20912 Washington, DC 20009 E-mail: kevin@nirs.org E-mail: sbehrend@llgm.com Michael Keegan Victor McManemy P.O. Box 331 7786 Peninsula Drive Monroe, MI 48161 Traverse City, MI 49686 E-mail: mkeeganj@comcast.net

[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 28th day of June 2007