ML082550413
| ML082550413 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 09/11/2008 |
| From: | Fernandez A Florida Power & Light Co |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-250-OLA, 50-251-OLA, ASLBP 08-869-03-OLA-BD01, RAS 1116 | |
| Download: ML082550413 (12) | |
Text
September 11, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
Florida Power & Light Company ) Docket Nos. 50-250
) 50-251 (Turkey Point Units 3 and 4) )
FPLS ANSWER TO REQUEST FOR HEARING AND PETITION FOR LEAVE TO INTERVENE OF SAPORITO ENERGY CONSULTANTS INTRODUCTION Pursuant to 10 C.F.R. §2.309 (h), Florida Power & Light Company (FPL) hereby opposes the Request for Hearing and Leave to Intervene filed by Saporito Energy Consultants (SEC or Petitioner) on August 18, 2008, concerning a license amendment request submitted by FPL. See Request for Hearing and Leave to Intervene (Hearing Request). Petitioner has not demonstrated standing to intervene in this proceeding or identified any admissible contentions. Therefore, the Hearing Request must be denied.
BACKGROUND The instant petition arises out of an LAR submitted by FPL requesting the NRCs approval to delete notes regarding the inoperability of the Unit 4 and Unit 3 Rod Position Indication (RPI) system for certain control rods. See Letter from William Jefferson, Jr. to NRC, Administrative changes to Technical Specifications to Remove Notes Regarding the Inoperability of [RPI] for Control Rods F-8 (Unit 4) and M-6 (Unit 3) (Sept. 5, 2007)
(hereinafter LAR). In response to FPLs LAR, the NRC Staff issued a Notice of Consideration
of Issuance of Amendments to a Facility Operating Licenses, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing. See 73 Fed. Reg. 43,953, 43,956 (July 29, 2008). In the notice, the NRC provided an opportunity for persons that could be adversely affected by the license amendment to request a hearing within 60 days of the Notice.
Id. at 43,954. On August 18, 2008, Petitioner filed a timely Hearing Request. By Notice dated August 21, 2008, the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel established an Atomic Safety and Licensing Board (the Board) to preside over this proceeding.
DISCUSSION I. Standing A. Legal Requirements for Standing In order to obtain a hearing before the NRC, a petitioner must demonstrate its standing and file at least one admissible contention. See Atomic Energy Act §189a, 42 U.S.C. §2239 (a)
(Act or AEA) (stating In any proceeding under this Act, for the granting, suspending, or amending of any license . . ., the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.). To establish standing, the petitioner must comply with 10 C.F.R. § 2.309(d), which requires petitioners to plead the nature of the requestors/petitioners right under the Act to be made a party to the proceeding[,] . . . the nature and extent of [the petitioners] property, financial or other interest in the proceeding; and [t]he possible effect of any decision or order that may be issued in the proceeding on the [petitioners] interest. 10 C.F.R. § 2.309(d)(1).
2
In determining whether a petitioner has established the requisite interest, the Commission has traditionally applied contemporaneous judicial concepts of standing. See, e.g., Gulf States Utilities Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 47 (1994). The petitioner must establish; (a) that he personally has suffered or will suffer a distinct and palpable harm that constitutes injury in fact; (b) that the injury can fairly be traced to the challenged action; and (c) that the injury is likely to be redressed by a favorable decision in the proceeding. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 195 (1998)
(citing Steele Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998); Dellums v.
NRC, 863 F.2d 968, 971 (D.C. Cir. 1988)).
In NRC proceedings, a petitioner who suffers only economic injury unrelated to potential radiological or environmental effects lacks standing to challenge an agency action under NEPA or the AEA. See International Uranium (USA) (Receipt of Material from Tonawanda, New York), CLI-98-23, 48 NRC 259, 265 (1998). (The appropriate party to raise safety objections about a specific licensing action is the party who, because of the licensing, may face some radiological harm. . . . As such, it has long been [NRC practice] to reject standing for petitioners asserting a bare economic injury, unlinked to any radiological harm.) The injury must be concrete and particularized and actual or imminent, not conjectural or hypothetical. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). A petitioner must have a real stake in the outcome of the proceeding to establish injury in fact for standing; while this stake need not be a substantial one, it must be actual, direct or genuine. Houston Lighting and Power Co.
(South Texas Project, Units 1 and 2), LBP-7910, 9 NRC 439, 447-48 (1979), affd, ALAB-549, 9 NRC 644 (1979). A mere academic interest in the outcome of a proceeding or an interest in the litigation is insufficient to confer standing. Puget Sound Power & Light Co. (Skagit/Hanford 3
Nuclear Power Project, Units 1 and 2), LBP-82-74, 16 NRC 981, 983 (1982) (citing Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 422 (1976)). Similarly, an abstract, hypothetical injury is insufficient to establish standing to intervene. International Uranium Corp. (White Mesa Uranium Mill), CLI-98-6, 47 NRC 116, 117-18 (1998).
Lastly, in cases involving the construction or operation of a nuclear power reactor, the NRC created a presumption that persons having regular physical contacts within a 50-mile proximity of the reactor are assumed to have established the requisite injury, causation, and redressability elements of the judicial test for standing. See Florida Power & Light Co. (St.
Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329 (1989). However, in cases involving LARs the Commission has made clear that petitioners must (1) assert an injury tied to the effects of the proposed LAR, not simply a general objection to the proposed action; and (2) if the petitioner fails to show that the LAR increases the potential for offsite consequences, show a plausible chain of events that would result in offsite radiological consequences posing a distinct new harm to the petitioner. See Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 188, 191-92 (1999) (A petitioner cannot seek to obtain standing in a license amendment proceeding simply by enumerating the proposed license changes and alleging without substantiation that the changes will lead to offsite radiological consequences.).
B. Petitioner has Failed to Establish Standing As discussed above, in order to successfully request a hearing before the NRC, SEC must demonstrate that it has a real stake in the outcome of the proceeding. Lujan, 504 U.S. at 560.
As a petitioner, SEC must demonstrate that its interests are not hypothetical. See White Mesa 4
Uranium Mill, CLI-98-6, 47 NRC at 117-18. SEC, however, fails to demonstrate that the proposed action in any way will affect its interests. Aside from the bald assertions that it can be adversely affected by a radioactive release, SEC offers not a scintilla of evidence linking it to the area around Turkey Point. In fact, both of the addresses listed by SEC are in Jupiter, Florida, which is more than 100 miles from Turkey Point. Moreover, SEC complains that an accident at Turkey Point could forever compromise the environment where it does business. However, SEC fails to provide any rational link between some alleged accident and the proposed administrative changes to the facilitys technical specifications. Notably, SEC offers no insights as to the kind of accident that would impact it (more than 100 miles from Turkey Point) as a result of making minor administrative changes to two notes in technical specifications.
In the end, SECs injury claim is contrary to the Commissions application of judicial concepts of standing, which serves the purpose of assuring that parties aiming to participate in the Commissions proceedings have interests that are cognizable under the Atomic Energy Act.
The Commission, in discharging its responsibilities to protect the publics health and safety, allows persons to request a hearing only when they may face radiological harm. See Receipt of Material from Tonawanda, New York, CLI-98-23, 48 NRC at 265. In the instant case, SEC has failed to demonstrate that it could face any such harm. Therefore, SECs Hearing Request should be denied.
II. Contentions A. Contention Pleading Standards Beyond demonstrating that a petitioner has the required standing to participate in a hearing, a petitioner must provide at least one admissible contention in order to be admitted into an NRC proceeding. 10 C.F.R. §2.309(a). In order to be admissible, a contention must provide:
5
- a specific statement of the issue of law or fact to be raised or controverted;
- a brief explanation of the basis for the contention;
- a concise statement of the alleged facts or expert opinions supporting the contention together with references to specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and
- [s]ufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact, which showing must include references to specific portions of the application (including the applicants 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 petitioners belief.
10 C.F.R. §§ 2.309(f)(1)(i), (ii), (v) and (vi). Notably, if a petitioner fails to comply with any one of these requirements the contention is inadmissible. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155-56 (1991).
The standards governing admissibility of contentions were promulgated as an amendment to 10 C.F.R. § 2.714, now § 2.309. Final Rule, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (Aug. 11, 1989).
The rule was intended to raise the threshold for the admission of contentions. See Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 and 3), CLI-99-11, 49 N.R.C. 328, 334 (1999); Palo Verde, CLI-91-12, 34 N.R.C. at 155-56. 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.
Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 24, 54 N.R.C. 349, 358 (2001) (citation omitted). If any one [of the pleading standards] . . . is 6
not met, a contention must be rejected. Palo Verde, CLI-91-12, 34 N.R.C. at 155 (citation omitted). Moreover, licensing boards are not allowed to supply their own information or to overlook any faults with proposed contentions. Id.
The Commission raised the threshold for contention admissibility to eliminate lengthy hearing delays caused in the past by contentions that had been admitted which were unsupported and loosely defined. Oconee, CLI-99-11, 49 N.R.C. at 334. When it incorporated the contention pleading standards into the new Part 2 rules, the Commission reemphasized that [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 that the proceedings are effective and focused on real, concrete issues. 69 Fed. Reg. 2,182, 2,189-190 (Jan. 14, 2004).
B. SECs Contentions are Inadmissible SEC proposed three contentions in its Hearing Request. All of the contentions fail to meet the NRCs strict pleading requirements. The contentions merely reframe the 10 CFR § 50.91(a) standards as contentions and make bald assertions that the standards are not met. See Hearing Request at 2. Further, none of the contentions provide any basis or specificity for SECs assertions. Id. Additionally, the contentions are a challenge the NRCs proposed no significant hazards consideration findings. See id. It is well settled that such challenges cannot constitute a proper basis for requesting a hearing request. See Atomic Energy Act § 189.a(2)(A), 42 U.S.C. § 2239.a(2)(A); 10 CFR 50.58(b)(6) (The NSHC determination is subject only to the Commission discretion, on its own initiative, to review the determination.); Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-91-621, 33 N.R.C. 179, 183 (Commission regulation is very clear that a Licensing Board is without authority to review Staff's significant 7
hazards consideration determination. Staff's significant hazards consideration determination is beyond the scope of the hearing on the proposed amendment.). Consequently, even if the board were to find that SEC has standing in this proceeding, its request must be denied for failure to plead any admissible contentions.
Specifically, in Contention 1, while admitting that the proposed changes are administrative in nature, SEC alleges that the changes could directly or indirectly result in substantive changes to the Technical Specifications that preserve safety analysis assumption.
Id. Notwithstanding its assertion that the proposed change could compromise a so-called safety analysis assumption, SEC never provides which assumption it is referring to or how the proposed change would compromise the assumption. Further, SEC fails to reference any regulatory requirements that would mandate preservation of a so-called safety analysis assumption. In sum, Contention 1 fails to provide any specific fault with the proposed action; does not provide a basis for its allegations; is not supported by any alleged facts or expert opinions; and, does not demonstrate that there is a genuine dispute with FPL on an issue material to this proceeding. Therefore, Contention 1 is inadmissible.
In Contention 2, SEC alleges that the proposed actions create the probability of a new or different accident from any accident previously evaluated since the proposed amendments may change the physical plant or the modes of plant operation defined in the facility operating licenses. Id. As with Contention 1, SEC makes several claims that are baseless, unsupported and inconsistent with its own declaration that the proposed changes are administrative in nature. Compare id. (acknowledging the administrative nature of the changes) with id. (alleging without any basis that the LAR will change the modes of plant operation and the physical plant).
Akin to Contention 1, Contention 2 fails to provide any specific fault with the proposed action; 8
does not provide a basis for its allegations; is not supported by any alleged facts or expert opinions; and, does not demonstrate that there is a genuine dispute with FPL on an issue material to this proceeding. Therefore, Contention 2 is inadmissible.
Lastly, in Contention 3, SEC argues that the LAR creates a significant reduction in a margin of safety since the removal of the technical notes may reduce margins of safety. The tautology presented by SEC in Contention 3 is inadmissible. Again, the contention fails to provide any specific fault with the proposed action; does not provide a basis for its allegations; is not supported by any alleged facts or expert opinions; and, does not demonstrate that there is a genuine dispute with FPL on an issue material to this proceeding. Therefore, Contention 3 is inadmissible.
III. Conclusion For the reasons stated above, SECs Hearing Request should be denied.
Respectfully Submitted,
/signed (electronically) by/___________
Antonio Fernández FLORIDA POWER & LIGHT COMPANY Law Department 700 Universe Boulevard P.O. Box 14000 Juno Beach, FL 33408-0420 Phone: (561) 304-5288 Fax: (561) 691-7135 E-mail: antonio.fernandez@fpl.com Dated: September 11, 2008 9
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
Florida Power & Light Company ) Docket Nos. 50-250
) 50-251 (Turkey Point Units 3 and 4) )
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter. In accordance with 10 C.F.R. § 2.314(b), the following information is provided:
Name: Antonio Fernández Address: Florida Power & Light Company 700 Universe Blvd Mail Stop: LAW/JB Juno Beach, FL 33408 Telephone: (561) 304-5288 Fax Number: (561) 691-7135 E-mail Address: antonio.fernandez@fpl.com Admissions: Court of Appeals of Maryland Name of Party: Florida Power & Light Company Respectfully submitted,
/signed (electronically) by/___________
Antonio Fernández Counsel for Florida Power & Light Company September 11, 2008
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
Florida Power & Light Company ) Docket Nos. 50-250
) 50-251 (Turkey Point Units 3 and 4) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ANSWER TO REQUEST FOR HEARING AND PETITION FOR LEAVE TO INTERVENE and, NOTICE OF APPEARANCE for Antonio Fernández, dated September 11, 2008, have been served upon the following persons by the Electronic Information Exchange.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop: O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 William J. Froehlich, Chair Marcia Simon, Esq.
Administrative Judge E-mail: mjs5@nrc.gov E-mail: wjf12@nrc.gov Lloyd Subin, Esq.
E-mail: lbs3@nrc.gov Thomas S. Moore OGC Mail Center Administrative Judge E-mail: OGCMailCenter@nrc.gov E-mail: tsm2@nrc.gov Michael F. Kennedy Administrative Judge E-Mail: mfk2@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16C1 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 OCAA Mail Center Hearing Docket E-mail: ocaamail@nrc.gov E-mail: hearingdocket@nrc.gov
Saporito Energy Consultants Post Office Box 8413 Jupiter, Florida 33468-8413 Thomas Saporito E-mail: saporito3@gmail.com
/signed (electronically) by/_______
Antonio Fernández Dated at Juno Beach, Florida this 11th day of September 2008 2