ML050660125

Dominion Nuclear Connecticut'S Answer to the Petition for Late Intervention of the County of Suffolk

ML050660125
Person / Time
Site:	Millstone
Issue date:	02/28/2005
From:	Doris Lewis Dominion Nuclear Connecticut, ShawPittman, LLP
To:	Atomic Safety and Licensing Board Panel
Giitter R
References
50-336-LR, 50-423-LR, ASLBP 05-837-01-LR, RAS 9444
Download: ML050660125 (30)

Text

DOCKETED USNRC February 28, 2005 (10:40am)

UNITED STATES OF AMERICA OFFICE OF SECRETARY NUCLEAR REGULATORY COMMISSION ADJUDICATIONS STAFF February 28, 2005 Before the Atomic Safety and Licensing Board In the Matter of )

)

Dominion Nuclear Connecticut, Inc. ) Docket Nos. 50-336 - LR

) 50423 - LR (Millstone Nuclear Power Station, )

Units 2 and 3) )

)

DOMINION NUCLEAR CONNECTICUT'S ANSWER TO THE PETITION FOR LATE INTERVENTION OF THE COUNTY OF SUFFOLK Pursuant to 10 C.F.R. § 2.309(h)(1), Dominion Nuclear Connecticut, Inc. ("Dominion")

files this response in opposition to the "Petition for Late Intervention of the County of Suffolk of the State of New York" filed by Suffolk County (the "County") on February 1, 2005

("Petition").' The Atomic Safety and Licensing Board ("Board") should reject the County's Petition for at least three different reasons. 2 First, the County has no good cause for its late request to intervene, and the criteria for determining whether to entertain an untimely petition to intervene overwhelmingly weigh against accepting the Petition. Second, the Petition must be rejected because the emergency plan-related contentions it seeks to raise have already been ruled by the Commission to be outside the scope of the Millstone Units 2 and 3 ("Millstone") license While the Petition is dated January 28, 2005, the cover letter under which it was submitted indicates that it was filed on February 1, 2005. The Petition was first received by Dominion by electronic transmission on February 2,2005.

2 There is also a substantial argument that the Petition should be rejected because the Commission has already terminatedthe Millstone license renewal adjudicatory proceeding. Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC__ ("CLI-04-36'), slip op. at 1, 15. Thus, there is no basis under the regulations for the institution of yet another such proceeding with respect to Dominion's application.

Te lvo, 4e = SSC 3 '1

renewal proceeding. Thus, the attempt by the County to raise such contentions is contrary to the "law of the case" and amounts to no more than an impermissible attack on Commission regulations. Finally, none of the contentions proffered by the County meet the requirements for admissibility in NRC proceedings.

1. BACKGROUND On March 12, 2004, the NRC Staff published in the Federal Register a notice that it had accepted for docketing Dominion's license renewal applications for Millstone Units 2 and 3.3 In that same announcement, the Staff provided official notice of the opportunity for seeking an 4

adjudicatory hearing on the license renewal applications. The Notice stated that any person whose interest might be affected by the license renewals and who wished to participate as a party to a licensing proceeding must file a written request for a hearing and intervention petition within sixty days of the date of publication of the Notice in the Federal Register, or May I 1, 2004.5 One petitioner, the Connecticut Coalition Against Millstone ("CCAM"), sought intervenor status and requested a hearing in which to challenge the renewal of the Millstone licenses. 6 Afier the establishment of an Atomic Safety and Licensing Board and a series of motions and other filings, the Board denied CCAM's petition to intervene for failure to raise a litigable contention.7 On December 8, 2004, the Commission denied CCAM's appeal from the 3 Dominion Nuclear Connecticut, Inc., Millstone Power Station, Units 2 and 3; Notice of Acceptance for Docketing of the Applications and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. DPR-65 and NPF-49 for an Additional 20-Year Period, 69 Fed. Reg. 11,897 (Mar. 12, 2004)

("Notice").

4 id.

5 Id.

6 Petition to Intervene and Request for Hearing (Mar. 22, 2004) ("CCAM Petition").

7 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), LBP-04-15, 60 NRC 81 (July 28, 2004).

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Board's decision rejecting its petition to intervene, and terminated the license renewal proceeding.8 On December 17, 2004, more than nine months afier the Notice was published and over seven months beyond the deadline set in the Notice for filing petitions to intervene, the County filed its first petition for intervention and request for a hearing. 9 By letter dated December 27, 2004, the Secretary of the Commission rejected sua sponte the County's filing for failing to address the late-filing factors set forth in 10 C.F.R. § 2.309(c).10 The Secretary's letter stated that the County might file a petition for late intervention up to the time the NRC Staff issues a final decision on the license renewal application."1 On February l,2005, now over eight months late, the County filed its current Petition.

II. THE CRITERIA FOR DETERMINING WHETHER TO ENTERTAIN AN NONTIMELY PETITION TO INTERVENE OVERWHELMINGLY WEIGH AGAINST ACCEPTANCE OF THE COUNTY'S PETITION The Board should reject the County's Petition for failure to meet the criteria for the consideration of nontimely petitions to intervene. Commission regulation requires that eight factors be balanced to determine whether a nontimely petition for intervention should be granted:

Nontimely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer or the Atomic Safety and Licensing Board designated to rule on the request and/or petition and contentions that the request and/or petition should be granted and/or the contentions should be admitted based upon a balancing of the 8 CLI-04-36, slip op. at 1, 15.

9 Motion to Intervene of the County of Suffolk of the State of New York (Dec. 17, 2004).

° Letter from Annette Vietti-Cook, Secretary of the Commission, Nuclear Regulatory Commission, to Christine Malafi, Esq., County Attorney, County of Suffolk, New York (Dec. 27,2004) (ADAMS Accession No. ML043630023P).

1 Id.

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following factors to the extent that they apply to the particular nontimely filing:

(i) Good cause, if any, for the failure to file on time; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; (iv) The possible effect of any order that may be entered in the proceeding on the requestor's/petitioner's interest; (v) The availability of other means whereby the requestor's/petitioner's interest will be protected; (vi) The extent to which the requestor's/petitioner's interests will be represented by existing parties; (vii) The extent to which the requestor's/petitioner's participation will broaden the issues or delay the proceeding; and (viii) The extent to which the requestor's/petitioner's participation may reasonably be expected to assist in developing a sound record.

10 C.F.R. § 2.309 (c)(1). An evaluation of the Petition against these factors weighs overwhelmingly in favor of its rejection. First and foremost, the County has provided no valid justification for the considerable untimeliness of its intervention request.12 Granting the Petition would necessarily delay the licensing proceeding, because the proceeding has been terminated.

The County also has no interest that can be protected in this license renewal proceeding, since the interest it seeks to represent - protection of its citizens against emergency preparedness deficiencies - is outside the scope of a license renewal proceeding. Finally, the County has 12 Indeed, the original petition io intervene filed by the County on December 17,2004 offered absolutely no explanation why it was filed seven months late. The Petition undertakes to address the factors relevant to late petitions to intervene only because the County was directed to do so when its original petition was dismissed by the Secretary of the Commission.

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failed to demonstrate that would contribute to the development of a sound record. Therefore, there is absolutely no reason why the Petition should be entertained.

A. Factor (i): Good cause, if any, for the failure to file on time The County has failed to provide any reasonable explanation, let alone good cause, for its nontimely filing. As a result, this most important factor strongly urges that the Petition be denied.

Commission case law places most importance on whether the petitioner has demonstrated sufficient good cause for the untimely filing.' 3 Indeed, failure to demonstrate good cause requires the petitioner to make a "compelling" showing with respect to the other factors.14 The good cause for lateness factor should acquire even greater importance in this case, since the County was so late in filing an intervention petition that it missed the opportunity to participate in the then ongoing licensing proceeding.

The County claims that it has good cause because it never received "official notice" of the license renewal proceedings To support its claim, the County asserts that "[p]ublication notice in the Federal Register was insufficient to put the County on notice to allow meaningful participation in the hearing" and argues that the County should not be precluded from participating in a hearing based on a "technicality."16 The County's claims are clearly without merit. It is beyond argument that, under federal statutes, United States Supreme Court authority, and Commission case law, upon publication of a 3 PrivateFuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-02, 51 NRC 77, 79 (2000).

14 Texas UtilitiesElec. Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-04, 37 NRC 156, 165 (1993).

15 Petition at 5.

16 Id.

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notice of opportunity for a hearing in the Federal Register such notice "shall be deemed to have been given to all persons residing within the States of the Union and the District of Columbia...." Failure to read the Federal Register will not excuse a nontimelypetition to intervene. 1 8 Thus, good cause for a nontimely intervention petition cannot exist where a party merely asserts that the official notice provided in the Federal Register was insufficient.' 9 The County has failed to allege any specific deficiency with the Federal Register notice, thus it is subject to the "constructive notice" that is attributed to all United States residents upon publication in the Federal Register. Indeed, under the circumstances, the County's alleged lack of notice "is more appropriately attributed to a lack of diligent inquiry ... than it is to a lack of accessibility of the Federal Register." 20 Nor is the notice by publication in the Federal Register a mere "technicality."

Commission regulations require that notice of a proposed license amendment be published in the Federal Register so that affected parties can seek the institution of hearings that otherwise would not be held.2 ' The Commission's notice requirements adequately ensure that interested parties have an opportunity to seek participation in the proceedings.22 Because filing intervention petitions in response to such notice is the means provided by the Commission for parties to assert 17 44 U.S.C. § 1508;Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380,384-85 (1947);Long IslandLighting Company (Jamnesport Nuclear Power Station, Units I and 2), ALAB-292, 2 NRC 631, 647 n. 18 (1975).

It See Tennessee Valley Authoriry (Browns Ferry Units I and 2), ALAB-341, 4 NRC 95, 95-96 (1976); Florida Powerand Light (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-5, 31 NRC 73, 79 (1980),

affd, ALAB-950, 933-34 (1978).

19 FloridaPowerandLight Co. (Turkey Point Nuclear Generating Station, Units 3 and 4), 1ONRC 183, 191-92 (1979) (citing Jamesport and Fed. Crop Ins. Corp.).

20 Houston Lighting andPower Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-574, 11 NRC 7, 11 (1980). Indeed, if the County is as vitally interested in the Millstone license renewal proceeding as it claims, one would have expected it to assiduously search the Federal Register for notices of proposed NRC action relating to the renewal.

21 10 C.F.R. § 2.105.

22 Louisiana Energy Sertices, L.P. (Claiborne Enrichment Center), CLI-98-5,47 NRC 113, 114 n. 1 (1998).

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their hearing rights, such notice miust be attended to, and its provisions observed, by interested parties.

The County also asserts "on information and belief' that "actual notice of the license renewal proceedings was not received until well after the deadline for timely intervention had expired." 2 3 The County alleges "[u]pon information and belief' that, being a County of the State of New York, it did not receive any announcements published in the Connecticut media regarding the opportunity for a hearing on the license renewal. 2 4 Such a claim, even if true, also fails to provide the County with good cause for its late intervention attempt. Lack of coverage in news media is no excuse for a nontimely filing.2 5 Moreover, contrary to its protestations of lack of notice of the proposed license renewal action, the County certainly had actual notice of the Millstone license renewal efforts in June 2004 - six months before it filed its Petition - because on June 28, 2004 the Suffolk County Legislature passed a resolution noting that "Millstone Nuclear Power Plant, Units 2 and 3, has requested the Nuclear Regulatory Commission (NRC) to extend their operating license for an additional 20 years" and authorizing the engagement of special counsel to "prosecute an action, such as filing an amicus curiae brief or a motion to intervene" in order to "prevent this license from being renewed." 26 Even if the proposed license renewal only became known to the County in June 2004, the County failed to act promptly on that news and did not file its current petition to intervene until seven months later, in February 2005. It is well established that intervenors 23 Petition at 5.

24 Id.

25 See Browns Feny, supra, ALAB-341, 4 NRC at 96.

26 Procedural Motion No. 3-2004, Authorizing Legal Action To Prevent The License Extension For Millstone 2 and 3 (The County of Suffolk of the State of New York, June 28, 2004), Attachment I hereto.

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who wish to raise nontimely contentions must do so promptly upon learning the information that gives rise to the contention. 27 Nowhere does the County provide any justification for its failure to act promptly in June, and its failure to explain its delay of at least seven months precludes it from claiming any good cause for the untimely filing. 2 8 In short, this most important factor weighs fully against granting the County's Petition.2 9 B. Factors (ii), (iii) and (iv): The nature and extent of the petitioner's right under the Act to be made a party to the proceeding; the nature and extent of the petitioner's property, financial, or other interest in the proceeding; the possible effect of any order that may be entered in the proceeding on the petitioner's interest Factors (ii) through (iv) in 10 C.F.R. § 2.309(c)(1) are amenable to a common analysis and will be discussed together. Nontimely petitions for intervention must state (1) the nature of the petitioner's right under the Atomic Energy Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's interest in the proceeding; and (3) the possible effects of any order entered in the proceeding on petitioner's interest. These three factors essentially restate the 27 See, e.g., Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235,255 (1996); Power Authority ofthe State ofNew York, et. al. (James A. Fitzpatrick Nuce]ar Power Plant; Indian Point, Unit 3), LBP-01-04, 53 NRC 121, 127 (2001).

28 Westinghouse Elec. Corp. (Nuclear Fuel Export License for Czech Republic - Temelin Nuclear Power Plants),

CLI-94-7, 39 NRC 322, 329 (1994). Again, had the County sought to intervene in the license renewal proceeding in June 2004 it would have encountered a "live" proceeding and would have been able to make its case for potential intervention therein.

29 Nor could the County's late filing be justified by new information becoming available in recent months. The main documents on which the County relies to support its proposed contentions, "FEMA Reviews of the State and County Radiological Emergency Response Plans for the Indian Point Energey Center and Comments on the RFP Program, Planning and Exercise Issues Raised by Others, February 21, 2003"; "Review of Emergency Preparedness at Areas Adjacent to Indian Point and Millstone - James Lee Witt Associates, LLC, 2003"; and "Nuclear Regulation, Emergency Preparedness Issues at the Indian Point 2 Nuclear Power Plant," Highlights of GAO-03-58, Testimony by Jim Wells, Director, Natural Resources and Environment, before the Subcommittee on National Security, Emerging Threats and International Relations, Committee on Government Reform, House of Representatives, expected delivery date March 10, 2003," were all issued about two years ago. Therefore, there is nothing in the County's Petition that could not have been asserted in May 2004, when hearing requests were due in this proceeding.

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standing requirements for timely intervention petitions.30 The Commission's general standing requirements provide that a local governmental body that wishes to be a party in a proceeding for a facility located within its boundaries need not address the standing requirements.31 Millstone is not located in the County of Suffolk; therefore, the County must address the factors in 10 C.F.R.

§ 2.309(c)(1)(ii)-(iv).

The County asserts two bases for its right to be made a party. First,it points to the fact that parts of the County are located within Millstone's I 0-mile plume exposure pathway emergency planning zone, and the remainder falls within the 50-mile ingestion exposure pathway emergency planning zone. 32 Second, the County asserts its general proximity to the plant.3 3 To demonstrate the nature and extent of its interest in the proceeding, the County relies on its emergency coordination responsibilities and its duty to protect the health and welfare of its citizens in the event of a radiological emergency at Millstone. 3 4 As for the possible effect of any order that might be entered, the County seeks denial of the license renewal application until its concerns over Millstone's emergency plan are addressed. 3 5 The bases alleged by the County to address nontimely filing factors (ii) through (iv) are clearly inadequate. They all relate to the County's interest in, and desire to litigate, alleged deficiencies in Millstone's emergency response plan. However, Commission regulations 30 See 10 C.F.R. § 2.309(d)(1)(ii).

" 10 C.F.R. § 2.309(d)(2).

32 Petition at 2.

33 Id.

,4 Id. at 2-3.

35 Id.at16.

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preclude consideration of emergency plans in license renewal proceedings, 3 6 and the Commission has explicitly ruled that emergency planning issues are beyond the scope of the Millstone license renewal proceeding. 37 With respect to what effect an order that could be entered in this proceeding would have on the County's interest, the clear answer is none, for an order denying the application for license renewal would in no way impact Millstone's current licensing basis, and consequently, any alleged deficiencies in its emergency plan. Therefore, the County has failed to demonstrate that it has any right to participate as a party, to allege any interest relevant to the proceeding, or to show how an order that could be entered with respect to license renewal would redress its concerns.

C. Factor (v): The availability of other means whereby the petitioner's interest will be protected Despite the County's claim to the contrary, 38 it has other means to pursue its concerns over the alleged deficiencies in Millstone's emergency plan than seeking to intervene in the license renewal proceeding. The County may file a request to institute a proceeding to modify, suspend, or revoke Millstone's operating license in light of the alleged deficiencies in its emergency plan.3 9 While this factor is accorded less weight under Commission precedent, 40 the availability of other means for the County to seek redress of its concerns requires the Board to weigh this factor against granting the County's Petition.

36 10 C.F.R. § 50.47(a)(1).

37 CUI-04-36, slip op. at 8-9, citing FloridaPowerandLight Co. (Turkey Point, Units 3 and 4), CLI-1-17, 54 NRC 3, 9-10 (2001).

38 Petition at 4.

39 See 10 C.F.R. § 2.206.

40 ComanchePeak, supra, 37 NRC at 165.

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D. Factor (vi): The extent to which the petitioner's interest will be represented by existing parties.

The County correctly states that there are no existing parties that would represent the County's interests - in fact, there are no remaining parties, and not even an ongoing proceeding. 4 1 This factor, which is accorded less weight than others, 4 2 weighs in favor of granting the County's petition. 43 E. Factor (vii): The extent to which the petitioner's participation will broaden the issues or delay the proceeding The County asserts that "[i]nasmuch as no final decision has been rendered, County of Suffolk's participation as an intervenor will not delay these proceedings. There is no prejudice to any party."" That is assuredly not the case. Acceptance of the County's Petition would undoubtedly broaden the issues (as none are under litigation at this time) and cause delay, and this highly important factor'45 should weigh heavily against granting the Petition. The Commission affirmed the Board's decision to reject several contentions proposed by CCAM, and terminated the Millstone license renewal proceeding. Reaching that result took over eight months since the filing of CCAM's petition to intervene. If the County's Petition were granted, its consideration might require a comparable period of time to determine whether any of the County's proffered contentions was admissible. Such a process would thus introduce a significant delay, not to speak of the expenditure of considerable resources by Dominion, the 4' Petition at 4.

42 Comanche Peak-, 37 NRC at 165.

43 Dominion Nuclear Connecticut, Inc. (MillstoneNuclear Power Station, Unit 3), LBP-02-5, 55 NRC 131, 141 (2002).

44 Petition at 5.

45 Long IslandLightingCo. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387,402 (1983).

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Staff, the Board and the Commission. This important factor, therefore, weighs heavily against 46 granting the County's Petition.

F. Factor (viii): The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record Commission case law also places substantial importance on whether a nontimely petitioner's participation in the proceeding will assist in the development of a sound record.4 7 Indeed, this factor "assumes yet greater importance in cases ... in which the grant or denial of the petition will also decide whether there is to be any adjudicatory hearing." 48 For this factor to weigh in favor of granting a nontimely petition, the petitioner must precisely specify the issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony. 4 9 The County devotes only six lines to discussing this factor and makes no attempt to describe in any detail how its participation would help develop a sound record (assuming, contrary to fact, that the contentions it seeks to raise are within the scope of a license renewal proceeding).

The County also fails to identify any potential witnesses and, consequently, provides no summary of proposed testimony. With respect to evidence on which it intends to rely, the County merely provides a general list of references that includes (1) the Millstone license renewal application; (2) non-specific documents maintained by federal, state, and local agencies; (3) unidentified documents that might be disclosed in discovery, (4) non-specific "information" possessed by the County relevant to the proceeding; and (5) a general reference to other sources 46 MississippiPower & Light Co (Grand Gulf Nuclear Station Units I and 2), ALAB-704, 16 NRC 1725, 1730 (1982).

47 ComanchePeak, 37 NRC at 165 (1993).

48 id. at 166.

49Id. at 165.

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discussed in the Petition. 50 The County's failure identify experts, summarize their proposed testimony, and point to the documents it intends to produce and rely on requires the analysis of this factor to weigh against granting the Petition.

Thus, virtually all factors used in evaluating nontimely intervention petitions -

particularly good cause, potential for delay, availability of other means to pursue its emergency planning concerns, and ability to assist in the development of a sound record - counsel against admitting the County's petition. Therefore, the Commission must conclude that the balancing of relevant factors weighs heavily against admitting the Petition.

111. THE ISSUES RAISED BY THE COUNTY ARE BEYOND THE SCOPE OF A LICENSE RENEWAL PROCEEDING Another independent, and wholly sufficient, reason for rejecting the Petition is that the contentions it seeks to raise are outside the scope of the issues that can be considered in a license renewal proceeding. Indeed, the County's Petition amounts to nothing more than an impermissible attack on the Commission's regulations.

The regulations limit the scope of license renewal proceedings to consideration of the effects age-related equipment degradation during the extended license period and to compliance with National Environmental Policy Act requiremnents.5 ' The County's proposed contentions seek to raise issues regarding alleged deficiencies in Millstone's emergency plan.5 2 The Commission has already rejected CCAM's attempt to litigate a contention that raised emergency planning 50 Petition at 14.

" 1OC.F.R.§54.29;seealso69Fed.Reg. 11,897-98.

52 See Petition at 6-14.

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concerns as beyond the permissible scope of the Millstone license renewal proceeding. 5 3 Therefore, the issue is the "law of the case" in this proceeding and the County may not seek to raise it again, absent a convincing demonstration that the Commission's ruling was wrong or would work injustice. 54 No such a demonstration has been made here, and none is possible since the Commission's ruling was based on a direct reading of the regulations. For Commission regulations expressly exclude consideration of emergency plans in license renewal proceedings.

10 C.F.R. § 50.47 on Emergency Plans states in relevant part: "(a)(1)... No finding under this section is necessary for issuance of a renewed nuclear power reactor operating license." Thus, the County's attempt to raise emergency plan-related issues in the Millstone license renewal proceeding must be rejected as an impermissible attack on the Commission's regulations. 5 5 Accordingly, the Board must reject the Petition as being outside the scope of the Millstone license renewal proceeding.

IV. THE "CONTENTIONS" RAISED IN THE PETITION FAIL TO SATISFY COMMISSION REQUIREMENTS FOR ADMISSIBILITY One last reason why the Petition must be rejected outright is that it fails to comply with the Commission requirements for the formulation of litigable contentions. For each admissible contention, a petition to intervene must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; 53 CLI-04-36, slip op. at 8-9 (Dec. 8,2004) (citing TurkeyPoint, CLI-01-17, 54 NRC at 9).

54 PublicSen'ice Co. ofindiana (Marble Hill Nuclear Generating Station, Units I and 2), ALAB493, 8 NRC 253, 259-60 (1978).

55 See 10 C.F.R. § 2.335(a); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207,218 (2003); Duke Energy Corp. (Oconee Nuclear Station, Units 1,2 and 3), CLI-99-11,49 NRC 328, 334 (1999).

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(iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestor's/petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and (vi) Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.

This information must include references to specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief.

10 C.F.R. § 2.309(f)(1). The failure of a proposed contention to comply with any one of these requirements is grounds for its dismissal. 69 Fed. Reg. 2,182, 2,221 (Jan. 14, 2004); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999); Arizona PublicService Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155-56 (1991).56 56 The pleading requirements on proposed contentions are both strict and necessary. The Commission has stated that the "contention rule is strict by design," having been "toughened . . . in 1989 because in prior years

'licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation."' DominionNuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-O-24, 54 NRC 349, 358 (2001) (citation omitted). The Commission has explained that a "strict contention rule" serves multiple purposes, which include putting other parties on notice of the specific grievances and assuring that full adjudicatory hearings are triggered only by those able to proffer at least some minimal factual and legal foundation in support of their contentions. Oconee, CLI 11, 49 NRC at 334. By raising the threshold for admission of contentions, the NRC intended to obviate lengthy hearing delays caused in the past by poorly defined or supported contentions. Id. As the Commission reiterated in incorporating these same standards into the newly revised Part 2 rules, "[t]he threshold standard is necessary to ensure that hearings cover only genuine and pertinent issues of concern and that issues are framed and supported concisely enough at the outset to ensure 15

A cursory examination of the three "contentions" propounded by the County shows that neither meet any of the requirements for admissibility. Each of the three "contentions" is but a rambling set of allegations without any specific statement of the issues of law or fact being asserted or controverted; there is no "brief explanation" of the basis for each contention; no demonstration is made that the emergency planning issues being raised are within the scope of the license renewal proceeding (and, as discussed above, no such demonstration is possible);

there is no showing of how the emergency planning issues being raised are material to the findings the NRC must make to support approval of the license renewal applications; 57 nor is there a showing that a genuine dispute exists with Dominion on a material issue of law or fact, with "references to specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes." Thus, the three "contentions" propounded by the County are so ill framed that they do not even begin to comply with the regulations and must be rejected.

There is no need to discuss the substance of the allegations in the County's proposed "contentions" in any detail. Suffice it to mention that the Petition is based upon fundamental errors and misconceptions that invalidate the County's claims. For example, most of the emergency plan deficiencies that the County alleges are in areas that are part of the offsite emergency response plans of the State of New York, Suffolk County itself, or certain municipalities within the County. As such, their oversight is within the purview of the Federal Emergency Management Agency ("FEMA"), see 44 C.F.R. § 350.4, and allegations of that the proceedings are effective and focused on real, concrete issues." 69 Fed. Reg. 2,182, 2,189-90 (Jan. 14, 2004).

57 Nor could there be any such demonstration, since no emergency planning findings need to be made in order to approve a license renewal application. 10 C.F.R. § 50.47(a)(1).

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deficiencies in those plans must be raised in the first instance with FEMA, not the NRC, see 10 C.F.R. § 50.47(a)(2) and 44 C.F.R. § 350.13. Accordingly, asserting such alleged deficiencies does not raise a "material issue of law or fact" in a license renewal proceeding.

Other claims are simply inconsistent with the regulations and the regulatory guidance.

For example, the County asserts that there is no evacuation and/or emergency plan in place for the Town of Southland or other areas of Suffolk County beyond the 10-mile emergency protection zone. Petition at 10. Yet, the regulations and guidance by the NRC and FEMA do not require the preparation of such plans for population centers outside the 10-mile plume exposure pathway emergency planning zone. 58 Another demonstrably erroneous assumption made by the County is that the emergency response plans for Millstone are based on an outdated 1997 Evacuation Time Estimate ("ETE")

that does not take into consideration the data developed in the 2000 Census. Petition at 7. In fact, the current ETE for Millstone was prepared in 2002 and is based on 2000 Census data. See .

Because of these and other errors and misconceptions, the "contentions" alleged by the County are inadequate in form and content, and fail to raise issues that would warrant adjudication in a licensing proceeding. Accordingly, the Petition must be rejected for failure to assert any litigable contentions.

8 10 C.F.R. § 50.47(c)(2); NUREG 0654/FEMA-REP-1 (Rev. 1), CriteriaforPreparation andEvaluation of RadiologicalEmergency Response PlansandPreparednessin Support ofAMuclear PowerPlantsat 11-]2. If for some reason it were deemed necessary to develop emergency response plans for those population centers, it would be the responsibility of the State (in this case, New York), the County (here, Suffolk County) and the locality (e.g., the Town of Southland) to develop them.

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V. CONCLUSION For the reasons set forth above, Dominion requests that the Board reject the County's Petition.

Respectfully submitted, David R. Lewis Matias Travieso-Diaz Timothy J. V. Walsh SHAW PITTMAN LLP 2300 N Street, N.W.

Washington, DC 20037-1128 Tel. (202) 663-8474 Lillian M. Cuoco Senior Counsel Dominion Resources Services, Inc.

Rope Ferry Road Waterford, CT 06385 Tel. (860) 444-5316 Dated: February 28, 2004 Counsel for Dominion Nuclear Connecticut, Inc.

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AMAIVQC., I Introduced by Legislators Schneiderrnan &Caracciolo Laid on the Table: 6/22/04 PROCEDURAL MOTION NO. 3-2004, AUTHORIZING LEGAL ACTION TO PREVENT THE LICENSE EXTENSION FOR MILLSTONE 2 AND 3 WHEREAS, Millstone Nuclear Power Plant, Units 2 and 3, has requested the Nuclear Regulatory Commission (NRC) to extend their operating license for an additional 20 years: and WHEREAS, the Millstone Nuclear Power Plant, although located in Waterford, Connecticut, includes the areas of Fishers Island and Plum Island In their evacuation plan because they are located within the 10 mile radius requirement; and WHEREAS, due to the close proximity, the east end of Long Island would also be affected should a nuclear accident or disaster occur; and WHEREAS, to protect the safety and well-being of the residents of Suffolk County, the County of Suffolk should institute legal action to prevent this license from being renewed; now, therefore, be It 1st RESOLVED, that the County Legislature shall, pursuant to Section 16-1(C) of the SUFFOLK COUNTY CHARTER retain such special counsel as shall be necessary to prosecute an action, such as filing an amicus curiae brief or a motion to Intervene, said counsel to be selected by the County Legislature, as recommended by the Economic Development, Higher Education and Energy Committee of the Suffolk County Legislature after a thorough interview process Involving at least three (3) qualified law firms from Long Island, the contract for which shall then be executed by the Presiding Officer of the County Legislature and the funds therefore shall be expended from the County Legislature's Budget Review Office Fees for Services non-employees appropriation account (001-Leg-1025-4560) in an amount not to exceed $25,000.00 without the further approval of this Legislature.

DATED: ADOPTED 6128/04 EFFECTIVE IMMEDIATELY PURSUANT TO SECTION 2-15(A) OF THE SUFFOLK COUNTY CHARTER s:Ares~motion-millstone

4A-ck:.srVnCA Z FRI 03:03 PM EMERGENCY PLANNING FAX NO. 860 440 2104 P. 02 I

Evacuation Time Estimates for the Millstone Power Station Plume Exposure Pathway Emergency Planning Zone J':vparadfior:

DIominion Nuclear Waterford, Connecticut Preparedby:

F.arth Tech, Inc.

196 Balker Avenue Concord, MA 01742 Dccember 2002

FEB-18-2005 FRI 03:03 PM EMERGENCY PLANNING FAX NO. 860 440 2104 P. 03 TABLE OF CONTENTS Page

1. ITRODUCnaON 1.1 1.1 General 1-1 12 Site Location and Energency Planning Zone (EPZ) 1-2 1.3 Reception Centers 1-2

2. METHODOLOGY AND ASSUMPTIONS 2-1 2.1 Sources of Data and General Assumptions 2-1 2.2 Summnary of Methodology 2-3 2.3 Conditions Modeled 2-5

3. POPULATION AND VEHICLE DEMAND ESTIMATION 3-1 3.1 Permanent Residents 3-1 3.1.1 Auto-Owning Pernianent Population 3-2 3.12 Transport-Dependent Permanent Population 3-3 3.2 Seasonal Rcsidents 3-3

,, 3.3 Transient Population 3.3 3A Special Facilities Population 3.4 3.4.1 Medical, Nursing Care and Correctional Facilities *34 343A2 Schools and Day Care 3.4 3.5 Emergency Response Planning Area Population Totals 3-8

4. EVACUATION ROADWAY NETWORK 4-I 4.1 Nctwork Definition 4-1 4.2 Evacuation Route Descriptions 4.2 4.3 Characterizing the Evacuation Network 4-2

5. EV'ACUATION TIMF, ESTIMATE METHODOLOGY 5-1 5.1 Evacuation Analysis Cases 5-1 5.2 Initial Notification 5-l 5.3 Transportation Dependent Population 5-2 5.4 Fvacuation Preparation Times and Departure Distributions 5-2 5.4.1 Permanent and Seasonal Population 5-2 5.4.2 Transient Population 5-3 5.4.3 Special Facilities 5.3 5.5 Evacuation Simulation 5-4 5.5.1 General Structure 5-4 5.5.2 Dynamic Route Selection 5-5 5.5.3 The Priority Treatment 5-5 5.5.4 Capacity Calculations 5-6 of Cowerits Talik of Conients Page 1 Mdlstonc .ETE 2002 Tahle Poge I Millstonc ETE 2002

FEB-18-2005 FRI 03:04 PM EKERGENCY PLANNINGF FAX NO. 860 440 2104 P. 04 I

TABLE OF CONTENTS (CONrD)

G. ANALYSIS OF EVACUATION TIMES 6-1 I. 6.1 6.2 Evacuation Time Estimate Summary All Conditions 6-l 6-2 6.3 Winter Day 6-3 6.4 WinterNight 64 6.5 Summer Weekend 64 6.6 1~ Special Evcnts 6.6.1 Summer Music FeStiVal 6-5 6-5 6.6.2 Sailfest 6-5 6.63 Waterford Day 6-6 Ij 6.7 Fishers Island and Plum Island 6.7.1 Fishers Island 6-6 6-6 1ii 6.7.2 Plum Island 6-7

7. TRAFFIC CONTROL AND EVACUATION CONFIRMATION 7-1 I, 7.1 7.2 General Evacuation Confirmation 7-1 7-l 73 Evacuation Access Control Locations 7-1 7.4 Evacuation Traffic Management Locations and Otiher Potential Mitigaiing MeasurCs 7-2 1 APPENDICES I. Appendix A Transient and Spocial Facility Population Data Appcndix 13 Roadway Network Listing and Capacities from Ne(Vnc2 I.

LIST OF FIGURES Figure l-l I.ocation Map - Millstone Power Station 1-3 I.

i, Figure 5-1 NotificationiPrcparatlonlMobilization Time Distributions Millstone Power Station 5-8 I.

Cont.uts a.! C Tobic of Pnge Ii Mills goic ETE 2002 TOWl onfents Pageli Afillsione ETE 2002 I

FEB-18-2005 FRI 03:04 PM EMERGENCY PLANNING FAX NO. 860 440 2104 P. 05 LIST OF TABLES I. Page Table 1-1 Municipalities Partially or Entirely Witbin the Millstone EPZ 1-4 I Table 1-2 Millstone EPZ Reception Canter 14

'rabrc 3-1 Permanent Population Distribution within the Millstone EPZ 3-2 Table 3-2 Seasonal Population Distribution within the Millstone EPZ 3-5 I. lTable 3.3 Special Facilities Population Distribution Within the Millstone EPZ 3.6 I., Table 3-4 Milstonc EPZ Population Suminary 3-7 I. Tablo 4-I Millstone EPZ Primary Evacuation Routes By Municipality 4-3 Table 6-1 Evacuation Time Estimate Summary for Millstone Nuclear Power Station 6-1 Table 6-2 Evacuation TIm Estimate Swumary for Miltstone EPZ Sub-Aras 6-Table 7-1 Recommended Traffic Control Managemenl Locations 7-5 I.

1I I.

I.

Po5e Afill.s tone ETE 2002 Thblc of I'ruble ofContents Conwots PaOC iii Hii Mill1one ETE 2002

FEB-18-2005 FRI 03:04 PM EMERGENCY PLANNING FAX NO. 860 440 2104 P. 06 EXFCUTIVE

SUMMARY

I This report documents the results and methodology of Evacuation Timc Estimates (ETE) prepared by Earth Tech for the Millstone Power Station in Waterford, Connecticut. This study supersedes the ETE study completed by Artlh Tech in 1997.

The study reflects the current definitions of the Emergency Planning Zone and Emergency Response Planning Zones ("Zones'). This study was performed using I NctVac2, a dynamic model developed specifically for performing MTE studies.

The NetVac2 model accounts for road and Intersection capacity, -.ariablc vehicle loading rates, and the geographic distribution of vehicles entering the network. The model also accounts for reduced travel speeds due to traffic congestion and queuing

! at intersections. Tle model simulates driver behavior in congested traffic by dynamically assigning evacuation routes based on downstream queuing.

The road network used in the evacuation simulations consisted of designated evacuation routes plus Any additional roadways needed to accurately simulate conditions during an evacuation. Roadway capacities were calculated by the NctVac2 model in accordance with the methodology in the Highway Capacity 1I, Manual, based on actual road and intersection data collected in the field in 1992 and 2002. Existing traffic controls were assumed to be in place and operating, except at locations where traffic management personnel were necessary to override existing controls to improve traffic flow. Evacuees were gecncrally assumed to proceed out of the Emergency Planning Zone (EPZ) by the most direct route and make their way to reception centers after leaving the EPZ.

rraffic control measures were also used in determining evacuation times out of the lF EPZ. Existing traffic controls were assumed to be in place and operating, except at locations where traffic management personnel were necessary to override existing controls to improve traffic flow. In addition, it was assumed that the Connecticut l Department of Public Safety's Millstone Station Traffic Management Plan would be implemented to control access into the EPZ and to expedite the flow of'traffic out of l the EPZ.

The sector-basod evacuation process reflects the currcnt 6-Zone planning process.

The 6 Zones (A, B, C, D, E and F) are based roughly on the 2-mile, 5-mile and 10-mile rings and direction sectors used in the past, but also rely on geographic (town) boundaries. The 2000 U.S. Census block data was allocated to the 6 Zones and to individual entry nodes.

The Connecticut Office of E.mergcncy Managemcnt, town offices and the State of Connecticut web site provided updates for school populations. Other transient and special facilities populations were modified using Information collected from state, Excccurivc Siminary Page a- I Millsronc ETE 2002

FEB-18-2005 FRI 03:05 PM EMERGENCY PLANING FAX NO. 860 440 2104 P. 07 county and local agencies and organizations, Internet searches and telephone surveys.

Thc resident population of the Millstone EPZ is estimated at 120,337 permanent residents and 9,548 seasonal residents. The number of seasonal residents was estimated using 2000 U.S. Census housing data, assuming the same number of people per seasonal housing unit as for the permanent resident population.

Thc transient population, which Includes large workplaces, recreational facilities and hotels/motels was estimated at 47,753 persons for a winter weekday, 22,291 persons for a winter weeknight and 37,122 persons for a summer weekend. The special facilities population, which rcpresents schools, nursing homes and hospitals, was estimated at 38,273 persons for a winter weekday, 12,506 persons for a winter weeknight and 8,833 persons for a summer weekend. These population estimates include intrinsic double counting, as many persons in the transient and special facility populations arc also included In the permanent and seasonal resident counts. Thus, evacuation times using these population figures, are considered conservative.

Vehicle demand for the resident population was estimated assuming that one vehicle per household would be used. Thc number of households for both permanent and seasonal residents was estimated using town-level 2000 CcAsus population and housing data to determine an average number of persons per household for the each town. Values ranged from a low of 2.09 for Fishers Island to a high of 2.87 for East Lyme. Vehicle demand for the transient population was estimated using vehicle occupancy factors ranging from 1.0 person per vehicle for the workforce population to 3.0 persons per vehicle for the recreational area population. Vehicle demand for the special facilities population was based on a bus occupancy of 52 persons, Iwo persons per ambulance for non-ambulatory persons and one vehicle per person for facility staff lEvacuation times were estimated for evacuation of the entire EPZ and for planned combinations of the Zones, for winter weekday, winter weeknight, and summer wcckcnd cases under both fair and adverse weather conditions. Zone F, Fishers Island, New York, was addressed separately in the ETE analysis. This population evacuates from the EPZ via ferry to a location outside or the EPZ, and does not interact with traffic inside the remaining five zones. Evacuation times for evacuation or the full EPZ for the winter weekday case were 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> 31 minutes (391 minutes) under fair weather conditions and 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> 47 ninutes (527 minutes) under adverse weather conditions. For the winter wecknight case the evacuation times were 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> 17 minutes and 5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> 58 minutes under fair and adverse weather conditions, respectively. For the summer weekend cases, evacuation times were 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> 25 minutes and .5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> 27 minutes for fair and adverse weather conditions, respectively. These limes trc shorter than the corresponding evacuation time eslimates from the previous (1997) study, despite an overall increase in population in MiIIsona ETI .?OO?

Ex'cufiv? Sunnciy Ercutive Suininaty PagetFS.2 Pate ES2 Afillstonc ETF 7002

FEB-18-2005 FRI 03:05 PH EMERGENCY PLUMING FFAX NO. 860 440 2104 P. 08 I' the EPZ. T1c shorter time estimates reflect differences in the geographic distribution of population and the addition of several alternativc routes to the roadway network.

I. Evacuation times for sub-aeas were generally only slightly shorter than the time cstimates for the entirc EPZ. For Zone A, the nominal 2-mile zone closest to the I: plant, however, Winter Day evacuation times were 90 minutes shorter than times for the entire PPZ.

I..

I Millstone ETE 200?

Summory Exe..i'iivc Summory Ex.ecutivo Poge FS-3 Pngi, FS-3 jiltsione FEM 2002

February 22, 2005 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMI0ISSION Before the Commission In the Matter of )

) Docket Nos. 50-336-LR Dominion Nuclear Connecticut, Inc. ) 50423-LR

)

(Millstone Nuclear Power Station, )

Units 2 and 3) )

NOTICE OF APPEARANCE The undersigned, being an attorney at law in good standing admitted to practice before the courts of the District of Columbia, and various federal courts, hereby enters his appearance as counsel on behalf of Applicant Dominion Nuclear Connecticut, Inc. in any proceeding related to the above-captioned matter. Mr. Travieso-Diaz requests that he be served by e-mail with all papers henceforth served by e-mail in this proceeding.

Respectfully submitted, Matias F. Travieso-Diaz SHAW PITTMAN, LLP 2300 N Street, N.W.

Washington, DC 20037-1128 telephone: (202) 663-8142 facsimile: (202) 663-8007 e-mail: matias.travieso-diazeshawpittman.com Dated: February 22,2005

February 22, 2005 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

) Docket Nos. 50-336-LR Dominion Nuclear Connecticut, Inc. ) 50423-LR

)

(Millstone Nuclear Power Station, )

Units 2 and 3) )

NOT]CE OF APPEARANCE The undersigned, being an attorney at law in good standing admitted to practice before the courts of the Commonwealth of Virginia, hereby enters his appearance as counsel on behalf of Dominion Nuclear Connecticut, Inc. in any proceeding related to the above-captioned matter. Mr. Walsh requests that he be served by e-mail with all papers henceforth served by e-mail in this proceeding.

Re ectfully submitted, Timnothy Jy V~4Ah SHAW P17iMAN, LLP 2300 N Street, N.W.

Washington, DC 20037-1128 telephone: (202) 663-8455 facsimile: (202) 663-8007 e-mail: timothy.walsheshawpittrnan.com Dated: February 22, 2005

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

) Docket Nos. 50-336-LR Dominion Nuclear Connecticut, Inc. ) 50A23-LR

)

(Millstone Nuclear Power Station, )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of "Dominion Nuclear Connecticut's Answer to the Petition for Late Intervention of the County of Suffolk," Notice of Appearance of Matias Travieso-Diaz, and Notice of Appearance of Timothy Walsh, were served on the persons listed below by deposit in the U.S. Mail, first class, postage prepaid, and where indicated by an asterisk by electronic mail, this 28th day of February, 2005.

• Secretary Office of Commission Appellate Att'n: Rulemakings and Adjudications Staff Adjudication Mail Stop 0-16 CI Mail Stop 0-16 Cl U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 secyenrc.gov, hearingdocketenrc.gov

• Administrative Judge *Administrative Judge Michael C. Farrar, Esq., Chair Alan S. Rosenthal, Esq.

Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 MCF~nrc.gov RSNTHL~comcast.net, src2@nrc.gov 19

• Administrative Judge *Christine Malafi, Esq.

Dr. Peter S. Lam Suffolk County Attorney Atomic Safety and Licensing Board H. Lee Denison Building Mail Stop T-3 F23 100 Veterans Memorial Highway U.S. Nuclear Regulatory Commission Hauppage, New York 11787 Washington, D.C. 20555-0001 Christine.Malafi~suffolkcountyny.gov psl~nrc.gov

• Catherine L. Marco, Esq.

Brooke D. Poole, Esq.

Office of the General Counsel Mail Stop 0-15 D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 clm~nrc.gov, bdpgnrc.gov David R. Lewis 20