ML083190530
| ML083190530 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 11/06/2008 |
| From: | Burton N Connecticut Coalition Against Millstone |
| To: | Atomic Safety and Licensing Board Panel |
| SECY/RAS | |
| References | |
| 50-423-OLA, ASLBP 826-01-OLA-BD01, RAS P-23 | |
| Download: ML083190530 (10) | |
Text
P-.."-S P~-i-*DOCKETED USNRC November 6, 2008 (3:54pm)
UNITED STATES OF AMERICA OFFICE OF SECRETARY RULEMAKINGS AND NUCLEAR REGULATORY COMMISSION ADJUDICATIONS STAFF In the Matter of Docket No. 50-423-OLA Dominion Nuclear Connecticut, Inc. ASLBP No. 862-01-OLA-BDO1 (Millstone Nuclear Power Station, Unit 3) November 6, 2008 NOTICE OF APPEAL The petitioners, Connecticut Coalition Against Millstone and Nancy Burton (collectively, "petitioners" or "CCAM"), herewith serve Notice of Appeal1 upon the United States Nuclear Regulatory Commission ("NRC") from the decision of the Atomic Safety and Licensing Board Panel ("Panel") dated October 27, 2008 denying their motions to file new and amended contentions. 10 C.F.R. §2.311. In conjunction herewith, the petitioners seek a waiver of the NRC's E-filing requirements of this document insofar as they presently lack computer capability to achieve E-filing functionality.
Procedural Background On July 13, 2007, the applicant, Dominion Nuclear Connecticut, Inc. ("Dominion"),
owner and operator of the Millstone Nuclear Power Station ("Millstone"), filed a request for an amendment to the NRC Operating License NPF-49 for Millstone Unit 3. The License Amendment Request ("LAR") requested approval for a 7+ per cent power uprate for Millstone Nuclear Power Station Unit 3 ("Millstone Unit 3"). The LAR would 1 The petitioners incorporate herein by reference their Petition to Intervene and Request for Hearing with accompanying Declarations; their response to NRC Staff and Dominion Answers and their objection to Dominion's Motion to Strike.
2 The petitioners incorporate by reference herein the motions which are the subject of this appeal.
01 03
increase Unit 3's authorized core power level from 3411 megawatts thermal (Mwt) to 3650 Mwt and make changes to Technical Specifications.
The petitioners filed a Petition to Intervene and Request for Hearing with nine (9) contentions dated March 17, 2008 with supporting declarations of their qualified experts, nuclear safety engineer Arnold Gundersen (formerly employed at Millstone Unit 3 in a supervisory capacity) and Ernest J. Sternglass, Ph.D., professor emeritus of the University of Pittsburgh School of Medicine and eminent authority on the health risks of exposure to low-level radiation.
Dominion and NRC Staff filed answers to the petition on April 11, 2008 opposing the petition. The petitioners filed their reply on April 22, 2008.
By Memorandum and Order issued on June 4, 2008 (LBP-08-09)("Panel Order"), the Panel granted CCAM standing but denied all the proffered contentions. CCAM timely appealed the decision to the NRC on June 16, 2008. The Commission denied the appeal by memorandum and Order, CLI-08-17 dated August 13, 2008 and affirmed the Panel's decision.
While CCAM's appeal remained pending before the Commission, the petitioners filed motions on July 18, 2008 and July 31, 2008 seeking to amend their original petition to intervene with new contentions based on newly discovered information. More particularly, such new information was disclosed by Dominion for the first time during proceedings on the proposed Millstone Unit 3 uprate conducted by the NRC's Advisory Committee on Reactor Safeguards held in Rockville, Maryland, on July 8, 2008, proceedings attended by Mr. Gundersen and petitioner Nancy Burton.
Dominion and the NRC staff filed answers in opposition to the July 31, 2008 motion 2
on August 8, 2008 and August 11, 2008, respectively.
On August 11, 2008, the Secretary of the Commission referred the July 31, 2008 motion and any further pleadings related to the motion to the Panel.
On August 7, 2008, while the petitioners' appeal was pending before the Commission, the petitioners filed a revised motion before the Panel seeking leave to file new and/or amended contentions based on receipt of new information.
On August 12, 2008, the NRC issued the requested amendment to Dominion.
On August 13, 2008, the Commission denied the petitioners' appeal.
On August 14, 2008, the Panel requested the parties to file briefs on the issue of whether the record needed to be reopened to accept new or amended contentions.
Dominion, the NRC staff and the petitioners filed briefs.
On August 27, the petitioners filed two new contentions supported by the expert declaration of nuclear engineer Arnold Gundersen together with a request for leave to file the said contentions.
By the present order on appeal, the Panel denied the petitioners' motions to file new or amended contentions on October 27, 2008.
Argument The Panel Order denying the petitioners' motions to file new or amended contentions is in clear error.
It is a fundamental tenet of administrative law that the record in an administrative proceeding does not close until a final judgment is rendered by the administrative agency.
When the petitioners filed their motions concerning new and amended contentions 3
based on new information disclosed by Dominion on July 8, 2008, no final judgment had entered in this administrative proceeding.
On August 11, 2008, the Secretary of the Commission issued the following order
("Secretary's Order"):
Pursuant to my authority under 10 C.F.R. § 2.346(i), the "Connecticut Coalition Against Millstone and Nancy Burton Motion for Leave to File Their 'Motion for Leave to File New and/or Amended Contentions Based on Receipt of New Information' Dated July 18, 2006, Nunc Pro Tunc, and for Continuing Waiver of Electronic Filing," is referred to the Board for any action it deems appropriate.
Any further pleadings related to this motion should be directed to the Board.
In this case, the petitioners' three pending motions to file new and/or amended contentions, and the Secretary's Order were all filed prior to August 13, 2008, the date when the Commission affirmed the Panel's decision in LBP-08-09 and denied the petitioners' appeal. CLI-08-17, 67 NRC , (slip op. at 18)(August 13, 2008).
Ordinarily, the Commission's issuance of a decision denying an appeal from an ASLB Panel's decision would constitute the "final judgment" for appeal purposes, assuming no further pleadings directed to the judgment have been filed.
However, by referring the petitioners' motion to the ASLB Panel "for any action it deems appropriate," the Commission Secretary acted to keep the record open notwithstanding the Commission's denial of the petitioners' appeal.3 Thus, the final judgment in this matter by which the record will be closed was ordered held in abeyance by virtue of the Secretary's order; therefore, the ASLB Panel
' The petitioners are of the view that the Commission's denial of their appeal given the pendency of the matter before the ASLB Panel by its own Secretary's order was premature.
4
was empowered and authorized to consider the petitioners' motions.
If this were not the case, a petitioner would be unable to submit admissible contentions as expressly allowed by 10 C.F.R. § 2.309(f)(2), which does not distinguish between cases where contentions are admitted rather than cases where there are no admitted contentions.
Clearly, the Commission's regulations contemplate an opportunity to file new or amended contentions provided that the circumstances under §2.309(f)(2) have been met.
The clear and explicit language of 10 C.F.R. § 2.309(f)(2)
... contentions may be amended or new contentions filed after the initial filing only with leave of the presiding officer upon a showing that (i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the new or amended contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.
makes clear that new or amended contentions meeting the criteria of 10 C.F.R. § 2.309(f)(2) must be allowed.
Furthermore, it is clear that the petitioners fulfilled the requirements of 10 C.F.R. § 2.309(f)(2):
(i) The information upon which the amended or new contention is based was not previously available; 5
As stated, the new information was disclosed by Dominion for the first time on July 8, 2008.
(ii) The information upon which the new or amended contention is based is materially different than information previously available; and The information upon which the new or amended contention is based is materially different from the information provided by Dominion in its application, as demonstrated by the very transcript of the July 8, 2008 ACRS proceeding as quoted verbatim in the petitioners' August 7, 2008 revised motion.
(iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.
The petitioners requested leave to submit their new and amended contentions within 30 days of publication on the NRC website of the transcript of the ACRS proceedings. It is the petitioners' understanding that in recent adjudicatory proceedings involving the Vermont Yankee Nuclear Power Station the NRC has approved of a 30-day period of time as a "timely" submission pursuant to this subsection.
If a licensing process is ongoing, the record has by definition not yet been closed; hence, there is no need for a 10 C.F.R. § 2.326 motion to reopen which only applies to cases in which a hearing has been held and the evidentiary record has been closed ("§ 2.326(a) A motion to reopen a closed record to consider additional evidence.. .
In this case, moreover, because the licensing process was ongoing when the petitioners filed their motions concerning new and amended contentions based on new information, a motion to reopen was not required and would not have been appropriate.
6
In its Memorandum and Order which is the subject of this appeal, the Panel faults the petitioners for allegedly not addressing the criteria for new or amended contentions pursuant to 10 C.F.R. §2.309(f)(2). 4 Yet, the petitioners did so at page 2 of their August 7, 2008 revised motion.
Moreover, without citing to legal authority, the Panel has burdened the petitioners with having to meet the requirements of an inapplicable motion to reopen (10 C.F.R.
§2.326) as well as demonstrate contention admissibility (10 C.F.R. §2.309(f)91)(i)-(vi) prior to filing new contentions. The regulations as written do not require that a petitioner do so.
The interpretation given by the Panel to the regulations cited is erroneous; the Panel misconstrues the regulations, which specifically allow for filing of new contentions based on newly discovered evidence which is material, and impermissibly barred the petitioners from filing meritorious new contentions.
In rejecting the petitioners' August 27, 2008 hot leg/cold leg contention, the Panel is simply incorrect in asserting that the information said to be "new" by petitioners' expert is in fact "not new." The petitioners' filing clearly exposes with specificity how the proffered information is "new" and how it materially differs from the information set forth in the application.
The Panel's Memorandum and Order emphasizes that the petitioners were constrained to offer their new contentions by means of filing a motion to reopen.
Once again, the interpretation of the Commission's regulations is incorrect. A record 4 Memorandum and Order at page 9.
7
of evidence is created at a hearing. Here, the petitioners have been denied a hearing.
The petitioners are therefore not "parties." The Commission itself has ruled that "a person cannot seek to reopen the record unless that person first becomes a party to the proceeding." Texas Utils. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-92-12, 36 NRC 62.
In conclusion, the Panel's decision, while citing to the Commission's regulations, gravely misinterprets the regulations to exclude the petitioners' contentions from being considered on their merits.
The Panel's decisionmaking has been unreasonable and in clear error.
Therefore, the Commission should grant this appeal, reverse the Panel's order and remand the matter for proceedings on the merits of the petitioners' worthy claims.
Respectfully Submitted, CONNECTICUT COALITION AGAINST MILLSTONE NANCY BURTON Nancy OurtoP 147 Cro s-ighway Redding Ridge CT 06876 Tel. 203-938-3952 8
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of Docket No. 50-423-OLA Dominion Nuclear Connecticut, Inc. ASLBP No. 862-01-OLA-BDO1 (Millstone Nuclear Power Station, Unit.3) November 6, 2008 CERTIFICATE OF SERVICE I certify that copies of the "CONNECTICUT COALITION AGAINST MILLSTONE AND NANCY BURTON NOTICE OF APPEAL" was transmitted on November 8, 2008 by email and by U.S. Mail, First Class, postage pre-paid to the individuals and offices as indicated below:
Office of the Secretary Office of Commission Appellate Attn: Rulemaking and Adjudications'Staff Adjudication U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: 0-16G4 Mail Stop: 0-16G4 Washington DC 20555-0001 Washington DC 20555-0001 HearingDocket@nrc.gov OCAAMAIL@nrc.gov Secy@nrc.gov (Original + 2 copies)
Administrative Judge William J. Froelich, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington DC 20555-0001 wjfl @nrc.gov Administrative Judge Administrative Judge Dr. Paul B. Abramson Dr. Michael F. Kennedy Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Mail Stop - T-3 F23 Panel U.S. Nuclear Regulatory Commission Mail Stop T-3 F23 Washington DC 20555-0001 U.S. Nuclear Regulatory Commission pba@nrc.gov Washington DC 20555-0001 mfk2@nrc.gov 9
Lillian Cuoco, Esq.
Dominion Resources Services, Inc.
Lloyd Subin, Esq. 120 Tredegar Street, RS-2 David Roth, Esq. Richmond VA 23219 Office of the General Counsel Lillian.Cuoco@dom.com U.S. Nuclear Regulatory Commission Washington DC 20555 OGCMailCenter@nrc.gov lbs@nrc.gov david.roth@nrc.gov David Lewis, Esq.
Stefanie Nelson, Esq.
Matias Travieso-Diaz, Esq.
Pillsbury Winthrop Shaw Pittman LLP Maria Webb, Paralegal 2300 N Street NW Washington DC 20037-1122 david.lewis@pillsburylaw.com stefanie.nelson@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com maria.webb@pillsburylaw.com
[Signed in Origina Nancy Burton 147 Cross Highway Redding Ridge CT 06876 NancyBurtonCT@aol.com 10