ML050750290

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 &3). Reply and Supporting Documents

ML050750290
Person / Time
Site:	Millstone
Issue date:	03/10/2005
From:	Kohn J Suffolk County, NY
To:	NRC/SECY/RAS
Giitter RL
References
RAS 9547
Download: ML050750290 (27)

Text

kS 954 COUNTY OF SUFFOLK DOCKETED USNRC March 14, 2005 (7:35am)

OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF---

STEVE LEVY SUFFOLK COUNTY EXECUTIVE CHRISTINE MALAFI DEPARTMENT OF LAW COUNTY ATTORNEY ADDRESS ALL COMMUNICATIONS March 10, 2005 IN THlIS MATTER TO:

Office of the Secretary U.S. Nuclear Regulatory Commission Sixteenth Floor, One White Flint North 11555 Rockville Pike Rockvillc, MD 20852 Attn: Rulemakings and Adjudication Staff Re: Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Units 2 &3)

Docket Nos.: 50-336 & 50423 Reply and Supporting Documents Honorable Sir/Madam:

Please accept for filing the enclosed Reply and Supporting Documents, submitted on behalf of the County of Suffolk, State of New York. An original and two copies are enclosed. The Affidavit of Service is attached at the back of the Reply.

Thank you for your attention to this matter.

Very truly yours, CHRISTINE MALAFI Suffolk County Attorney

• By:) Jennifer B. Kohn, Assistant County Attorney cc: Office of the Commission Appellate Adjudication, U.S.N.R.C.

Office of the Secretary Rulemakings & Adjudication Staff U.S.N.R.C.

David R. Lewvis, Esq., Shaw Pittman LLP Lillian M. Cuoco, Esq., Millstone Nuclear Power Station Catherine L. Marco, Esq.. Office of the General Counsel Margaret Bupp. Esq.. Office of the General Counsel II}:UNLAWU\B[K\Li-iiution 1 3\rnillstone - cover letter Reply 3-1 04)5.doc

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LOCATION MAILING ADDRESS H LEE DENNISON BLDG. P.O. BOX 6100 (631) 853-4049 I00 VETERANS MEMORIAL HIGHWAY + HAUPPAUGE. NY 11788-0099 + TELECOPIER (631) 853-5169 V

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before teie Atomic Safety and Licensing Board In the matter of:

DOMINION NUCLEAR CONNECTICUT, INC.

(Millstone Nuclear Power Station, Units 2 and 3)

REPLY Docket Nos. 50-336, 50-423 Introduction This reply is submitted in support of the Petition for Late Intervention of the County of Suffolk of the State of Newv York. The Nuclear Regulatory Commission's regulations require that consideration of a petition for late intervention is based upon a balancing of the eight (8) factors specified in 10 C.F.R. §2.309(c)(1). The NRC Staff Answer Opposing the Petition for Late Intervention of the County of Suffolk of the State of Newv York, dated February 28, 2005 (Hereinafter, "Staff Answer") admits that the County has satisfied five (5) of the eight (8) factors.

Standing; Nature Of Tle Countv's Riglit To Be Mlade A Party: Nature Of Tile Countv's Interest The factors in §2.309(c)(1) related to standing include the nature of the petitioner's right to be made a party and the petitioner's property, financial or other interest in the proceeding'. These factors weigh heavily in favor of the County. The NRC Staff also concludes that these twvo factors support the County's request. Staff Answer at 6. For this reason, the Staff does not oppose the County's standing to

' 10 C.F.R. §§2.309(c)(ii) and (iii).

P age 2 intervene in this matter. 1(1. It is indisputable that most, if not all of the County lies within the Millstone 10 and 50-mile emergency planning zones, that the County would be a primary provider and coordinator of emergency and public health services in the event of an emergency and also that many Suffolk County residents, xvorkers and or tourists would be affected by an emergency.

Furthennore, in license renewal proceedings, there is a "proximity presumption."

Persons nwcho live, work or otherwise have contact with the area around the reactor have standing to intervene; a local government entity may similarly be granted standing based on proximity. Pois'er Awzhioriiy of the Slite of Newv Yo*k (Jlames Fitzpatrick N/clealr PoirerPlaw: Indian Point, Unit 3), CLI 00-22, 52 NRC 266, 294-5, 2000 NRC LEXIS 134 (N.R.C. 2000) (Organizations alleging safety and health impacts upon members who live five and one-half (5 /2) miles from Power Plant, as well as employees at the Plant, ere held to have standing; 2 Flolidla Poller & Light Co. (Turkey Point Aluc/ear-Gener-ating Station. Units 3&4), 10 N.R.C. 183, 1979 NRC LEXIS 52, (ASLB 1979)

(Residence within 15 miles from the Generating Station and allegations of health hazard and recreational impairment were sufficient to grant standing; petition for intervention, filed more than one (1) year after expiration of the intervention period, was granted.) In addition, the Appeal Board has held, as follows, that residence within 16 miles is sufficient to establish the interest of a petitioner wvho raises safety questions:

The Appeal Board said that "close proximity has always been deemed to be enough, standing alone, to establish the requisite interest," and "the question of whether

[Petitioner's] concerns are justified must be left for 2 'Tlle James Fit:panrickdecision cites to J'eri-mont Yankee. CLI-0O-20, 52 NRC at _. slip op. at 4-5; Oyster Creek, CLI-00-6, 51 NRC at 202-03; Mlonticello, CLI-00-14, 52 NRC at 47, three cases in which organizations were granted standing based on members who lived or were quite active close to the site.

Page 3 consideration when the merits of the controversy are reached."

Tinrkey' Point, III., 1979 NRC LEXIS at *16, quoting Virginia Electric Polver Comipanlly (Norith Anna Powler Station. Units I and( 2), ALAB-146, 6 AEC 631, 634 (1973).

Likewise, tile County's close proximity to Millstone, supports its claim of standing and the County's claims should be detennined on the merits. The NRC Staff has also concluded that the proximity presumption applies to the County's standing. Staff Answer at 6.

Moreover, no party has disputed that the County is charged by law with protecting the health and safety of the people of Suffolk County. The County has an interest in this licensing proceeding by virtue of such responsibilities. In James Fitzpatrick, supra, the N.R.C. granted intervention status to two local school districts and participant status to the County3 where the facility was located, reasoning that there wvas a benefit to participation by interested local governments:

As we indicated in Nine Mile Point, CLI-99-30. 50 NRC at 344, "the Commission has long recognized the benefits of participation in our proceedings by representatives of interested states, counties, municipalities, etc."

52 N.R.C. 266, 2000 NRC LEXIS 134 at *25.

Also, 42 U.S.C. §2239(a)(1) provides that:

In any proceeding under this Act [42 USCS §§ 2011 et seq.], for the granting, suspending, revoking, or amending of any license or construction permit, ... 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. (Emphasis added.)

I li FitLpatrick, the County did not seek intervention status.

Page 4 The County certainly has an interest that would be affected by the proceeding.

The breadth and strength of the County's interest is distinguishable from that of Connecticut Coaltion against Millstonc ("CCAM"), a citizen's group, wvhose petition to intervene wvas recently denied. The NRC has recognized that a County's interest is broader than that of private individuals. Nuclear Fuel Services, Inc. (IVWest Valley Reprocessing Plant), C.L.I. 75-4, 1 N.R.C. 273, 1975 NRC LEXIS 107 at *6 (N.R.C.

1975). Thus, the factors listed in §2.309(c)(1)(ii) and (iii) are compelling reasons why the County's petition for late intervention should be granted.

Protection Of Public Health And Safetv In Suffolk Countv;/Otlher leaans Wherebv Thle Counts's Interest Could Be Represented/ Whether The Interest WVill Be Represented Bv The Other Parties As the N.R.C. Staff admits, the factors specified in 10 C.F.R. §2.309(c)(1) (v) and (vi) are satisfied by the County's papers. Staff Answver at 8. The County has demonstrated that there are no other parties and other means whereby the County's interest in protecting public health, safety and the environment wvill be protected. The real parties in interest here are the citizens who deserve to be protected, should an emergency arise. Suffolk County and its elected officials represent these people, who deserve a hearing, and who are not represented by any existing parties.

No intervenors have been admitted to this proceeding - the only parties are the license applicant and the NRC staff. The County's interest in this matter is protecting the public health and safety of its residents. This interest cannot adequately be represented by the NRC staff or the applicant. It has been held that:

The annals of NRC adjudications reflect that the position taken by staff on a specific safety or environmental issue

Page 5 (in the fulfillment of its role as the protector of the general public interest) often is at odds with the views espoused by an intervenor seeking to vindicate either its personal interest or its independent perception respecting where the public interest lies. Indeed, it was doubtless in recognition of the potential for such divergence that the Congress elected to provide hearing rights to private citizens and organizations in Section 189 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2239.

Clev'eland1 Electric IlluinatinigConmpany (PeriyNuclear Poweir Plant. Units I & 2), 18 N.R.C. 1404, 1983 NRC LEXIS 2 at *7 (N.R.C. 1983).

In IVest Vallely suipra. I N.R.C. 273, the Commission granted a County's petition for late intervention, recognizing the importance of allowing representation by County government based on its broad interests. See also, Chairman Rosenthal's Dissent in Long Islancl Lighlting Comipany (J'amesportNuclear Power Station, Units I ancd2), 2 NRC 631, 1979 NRC LEXIS 29, *34 (A.S.L.App. Bd. 1975), wvihere, in discussing West Valley, the Dissent noted that to have excluded the County from that proceeding:

would have had the effect of leaving those citizens without representation by their own local government oln matters at the very heart of the Atomic Energy Act.

Similarly, in the instant matter, the County is the representative of the people of Suffolk County and its concerns regarding public health and safety go to the core reason for regulation of nuclear power plants. In, short, as the NRC Staff concluded,4 there are no other means whereby the County's interest wvill be protected and no other parties to represent that interest.

4 Staff Answer at _.

Page 6 Possible Effect of anv Order The NRC Staff also admitted that the criteria specified in 10 C.F.R.

§2.309(c)(1)(iv), the possible effect of any order on the petitioner's interest, is satisfied by the County's application. NRC Staff Answer at 6-7. This factor is related to whether the NRC, Atomic Safety and Licensing Board, as the administrative tribunal, has the ability and jurisdiction to grant relief to the County. The County's requested relief is denial of the license renewal until adequate consideration of the issues raised, and the NRC absolutely has the authority to grant this relief.

Tile Dominion Answer contends that an order denying the application for renewal would not affect the County's interest, because the renewal does not impact Millstone's current licensing. Nonetheless, an order denying the renewal until the deficiencies are corrected would have a great impact on future public health and safety (and would, perhaps, push the applicant to examine the issue now during the current license period).

Thus, the County's interest would be affected by an order. Note that Dominion's position does not address the merits of the risks and safety issues raised by the County, or offer to correct the deficiencies now during the current license period. Dominion seeks to continue operation through the license renewal periods with a deficient plan.

Good Cause/Pr-ejudice to the Applicant One of the listed factors in 10 C.F.R. §2.309(c)(1) is that the petitioner should show good cause for the failure to file on time. The County contends that good cause for late intervention has been demonstrated in its papers.' Upon information and belief, the

Page 7 N.R.C. and the license applicant gave no actual notice to the County. Upon infomiation and belief, any petition based oln the actual notice received would have been untimely.

The parties have asserted that Federal Register notice is deemed to be constructive notice. Although Federal Register notice may be sufficient in some instances, there are many other instances where Federal Register notice is deemed to be insufficient by law (which exception is recognized by 44 U.S.C. §1508). Modern concepts of due process often require actual notice. For example, under N.R.C. regulations, certain parties are entitled to actual notice of these proceedings; this requirement is a recognition that constructive notice is not effective as actual notice in many instances. Suffolk County is a neighboring municipality within the 10 and 50-mile emergency zones. That fact alone is a mitigating factor and a reason why its lateness should be excused, particularly where no license expiration or interruption of electric service is imminent.

Furthernmore, "good cause" is only one of the factors cited in 10 C.F.R.

§2.309(c)(1). Even if, arguendo, good cause has not been shown, a late petition to intervene mav nevertheless be granted upon a strong showing of the other factors required for late filing. M'aine Yankee Atomic Powi'er Comiipany (Maine Yainikee Atomic Power Conmpan)), 58 N..R.C. 372, 2003 NRC LEXIS 204 at *12 (AS..L.B. Panel 2003),

Staff Answer at 5. In other wvords, while good cause is a factor to be considered, its absence is not fatal. In Pacific Gas Andl Electric Co. (Diablo Cani'onz Nuclear Power Planit, Units I and 2), 37 N.R.C. 433, 1993 NRC LEXIS 22, *3 (ASLB 1993), the Atomic Safety and Licensing Board held that:

Absent good cause, a petitioner must make a stronger showing on the other factors in order to have a contention accepted. But the good cause factor is not to be given

P a-C S controlling weight; all of them must be considered.

Indeed, in applying these factors, a Licensing Board has "broad discretion in the circumstances of individual cases."

(Footnotes omitted. Emphasis added.)

(Quoting Duke 'uiwie-r Co. (C('auiba Aluclectr- Station, Units I andI 2), CLI-83-19, 17 N.R.C. 1041 (1982)).

This is a wvell-established doctrine. In Vest alley, supra, 1975 NRC LEXIS at

• 4, the N.R.C. held that a Board has broad discretion in deternining whether a non-timely intervention petition should be granted; in exercising that discretion the Board should look not only to the reason for the tardiness, but, also to the other factors listed in the relevant regulation. In Wrest VZ(alley, Petitioner Erie County's application for late intervention wvas granted, even though no good cause for lateness had been showvn; the application was nine (9) months late.

Furthermore, In JamlesLsowr NVuclear. supra. 2 NRC 63 1, the Dissent by Chairman Rosenthal, concluded that in considering a late intervention petition and deciding the "good cause" question, tile Atomic Safety and Licensing Appeal Board may not confine itself to a consideration of whether the petitioner has advanced an adequate excuse for being late. According to then-Chainnan Rosenthal, even if the lateness is entirely unjustified, the Board must nonetheless look at the other factors spelled out in the regulation (citing West Valley, stepra, and referencing Virgiia Electric and Poiser Co.

(North Anna Station, Units I and 2), NRCI-75-9 395 (September 18, 1975). Otherwise, there wvould be no point to spelling out the other factors in the regulation. Chairman Rosenthal stated that:

[I]n passing upon a late petition, wve are under a Commission-imposed duty to take into account "[t]he

Page 9 nature of the petitioner's right under the [Atomic Energy]

Act to be made a party to the proceeding." ... supra. The message which this command imparts to me is that a late petition is entitled to some greater measure of solicitude if its sponsors have a clearly cognizable interest than if the claim of standing rests upon a much shakier foundation.

The West Valle' petition was that of a county, seeking to advance its asserted (clearly cognizable) interest in the protection of the health and safety of the citizens of tile county. To have excluded it from the proceeding would have had the effect of leaving those citizens without representation by their own local government on matters at the very heart of the Atomic Energy Act. ... When that case was before us, I repeatedly emphasized this consideration in support of my minority view that, notwithstanding the lack of a good excuse for the tardiness, the petition should have been granted on the basis of the four Section 2.714(a) factors. NRCI-75/3 at 217, 219-22, 225. And the Commission appears to have rested its own determination to allow intervention -- made "with some reluctance" -- in part upon the fact that the petitioner county was representing governmental interests "presumably broader" than those of the private intervenors in the case. NRCI-75/4R at 275. But for that fact, the Commission very possibly would have reached a quite different result.

1975 NRC LEXIS at *35.

While one possible reason for application of a good cause requirement is administrative efficiency, one of the Congressional purposes for regulation of nuclear facilities is protection of public health and safety. Congress made protection of public health and safety an express purpose of the laws providing for development and use of nuclear energy. 42 U.S.C. §2012(d) and (e), 42 U.S.C. §2013(d). Furthermore, Congress expressly found that the necessity for protection from interstate damage from operation of nuclear facilities placed these facilities within interstate commerce. 42 U.S.C. §2012(f0.

These purposes far outweigh the need for expediting the instant license renewal

Page 10 proceeding, especially where, as here, the licenses to be renewed do not even expire for 10 and 20 years, respectively.

Chairman Rosenthal's Dissent, in Juniespori- Nuclewr, at Note 16, stated that:

In unm-nistakeable tenls, the Act gives effect to the legislative concern that the public health and safety not be endangered by the operation of neclear facilities. See e.g.

Section 104d., 42 U.S.C. 2134(d).

Nowhere in the answering papers submitted by either Dominion or the NRC Staff, is there a detailed discussion of the merits of the public safety issues raised by the County.

The goal of the licensing proceeding is to protect public safety, as well as facilitate license applications. This factor, wvhen balanced against the County's lack of timeliness, supports the County's application for late intervention.

Delav in the Proceeding: The extent to which the reluestor's/pctitioner's participation will broaden the issues or delay the proceeding.

The extent to whvhich the petitioner's participation will inappropriately broaden the issues or delay the proceeding, a criteria listed in 10 C.F.R. §2.309(c)(1)(vii), is related to the requirement of timeliness. This factor seeks to address prejudice to the parties.

No party will be prejudiced by a delay to give due consideration to public safety.

The applicant will most certainly not experience prejudice or hann. The license renewal application for Millstone is premature to begin with, since the current operating licenses do not expire for periods of 10 and 20 years, until July 2015 for Unit 2 and November 2025 for Unit 3. No renewal is necessary until those licenses expire ten (10) and talenty (20) years from no%, respectively. There would be no unfairness to the

Page I I applicant to extend the license renewal process to consider important hlealth and safety issues.

Furthermore, According to the schedule on the Nuclear Regulatory Commission site, a Final Commission decision on this license renewal is not expected until 7/22/06.

Surely the schedule would include time to consider important health and safety issues, with no interruption in electric service.

Dominion argues that these issues should not be considered because consideration Wvould cost Dominion resources (i.e. money). This is not a valid reason to deny the County's Petition. Also, as to use of Commission resources, those resources should be dedicated to protecting public health and safety as required by the statute, in addition to expediting the proceeding on Dominion's behalf.

Moreover, these issues should be considered and the problems rectified whether or not the County intervenes in the proceeding. Suffolk County will use all means at its disposal to have this correction of deficiencies occur. Thus, the cost to Dominion and any cost to the N.R.C. will be a factor regardless of whether this petition is granted.

The United States Court of Appeals, Tenth Circuit, has held that:

The requirement of timeliness is not a tool of retribution to punish the tardy would-be intervenor, but rather a guard against prejudicial the original parties by the failure to apply sooner.

Utah Association of Counties v. Clinton, 255 F.3d 1246, 1250 (IO1 h Cir. 2001), quoting Sierra Club v. Espy, 18 F.3d at 1205. Similar reasoning should be applied here, where there would be absolutely no prejudice to the license applicant.

Page 12 Broadeninp,of the Issues It has also been suggested that granting the County intervenor status would inappropriately broaden the issues, because the issues raised are new. If 10 C.F.R.

§2.309(c)(1)((vii) were always interpreted in the negative way that Dominion suggests, no potential intervenor that raises valid newv contentions would ever be granted intervention status. The County is raising valid contentions and should be granted a hearing. The issue here is not just whether the proceeding would be delayed, but whether there Would be undue delay and broadening of the issues. In view of the circumstances, which include the importance of public health and safety, as well as the timetable for expiration of the current licenses, the County's petition should be granted.

Dominion also suggests that the County's intervenor status and contentions should be rejected because the intervenor status of Connecticut Coalition Against Millstone wvas rejected. As shown herein, the County's interest is broader and more substantial than Millstone, and its contentions are different. The County represents all of the residents and visitors in the County, and, in addition, the County is a primary coordinator and provider of emergency services. These two intervention applications are distinguishable and the County's Petition should be granted.

Development of a Sound Record The last factor to be considered on a petition for late intervention is whether the petitioner's participation may reasonably be expected to assist in developing a sound record. 10 C.F.R. §2.309(c)(1)(viii). The County's Petition meets the criteria, because the Petition shows that the County may reasonably be expected to assist in developing a

Page 13 sound record. The County identifies issues to be raised with particularity. For example, the County's documents raises issues related to evacuation and other emergency issues, citing specific regulations wvhich have not been complied with and other deficiencies in the emergency plans. These specific issues are not discussed in detail in Dominion's papers. Attached hereto are additional comments provided by Suffolk County Executive Steve Levy concerning tile Generic Environmental Impact Statement prepared for the Millstone license renewal. These comments amplify the County's concerns.

Thle County's Petition is supported by specific citations to expert reports and opinions. For example, the Petition cites to reports authored by James Lee Witt, Associates, LLC, prepared on behalf of the Newv York State Power Authority. ' Mr. Witt, the Chairman and CEO, is the former Director of the Federal Emergency Management Agency, and is undoubtedly an expert on emergency response generally and on the subject of Millstone radiological emergency plans. The County also cites to a report responding to tile Witt report, prepared by FEMA. 6 Moreover, the County cites to testimony by Jim Wells, Director, Natural Resources and Environment, wvhich testimony wvas contained in a U.S. General Accounting Office report..7 5James Lee Witt Associates, LLC, Review of Emergency PreparednessofAreas Adjacent to IndianPoint and Millstone.

('FEAM1.4 Reviews of le State andl Counrty RadiologicalEmergency Response Plansfortie hndian Point Energed CeLnrrL anad Commnnents on the RFP Program,Planning anldl Evercise Issues Raisedbya Others, February 21, 2003, Attachment B, Section 2, General FEMA/RAC Comments on the Draft NY State Report.

7"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, p.4 .

Page 14 The County also cltes to its own experts, including Joseph Williams, Commissioner of Suffolk County Fire, Rescue and Emergency Services and Alexander M. Santino, head of the County's Office of Pollution Control. The County's papers are specific, detailed and supported by expert testimony and reports.

The County has many other experts at its disposal relative to the questions at hand, by virtue of its governmental functions. The County has providers of police, emergency and rescue services, health services, physicians, scientists, engineers, transportation experts and planners. The County conducts extensive environmental testing and ground and drinking water monitoring. The County is uniquely qualified to provide updated information about population, tourist attractions, roadways, health care providers, police services, farms and farm products, drinking water data and other information to address the health and safety needs of residents.

In IMest Vutlley, sipra, I N.R.C. 273, the Commission granted intervention status to a County. On the question of developing a sound record, the Commission noted that while the record was inconclusive, the County had conducted air and water quality monitoring activities and was committed to conducting technical studies. Partly on this basis, the County was admitted as an intervenor. Similarly, in the present matter, the County has many pertinent documents in its files and experts who would testify on the relevant questions. The County's Petition specifically referenced the County's role in drinking and ground water quality monitoring. These capabilities are sufficient to support the County's ability to assist in developing a sound record.

Furthermore, in Periy Ntcle-,; sipra, 18 N.R.C. 1404, it was held that an intervenor which has demonstrated its ability to contribute to the development of the

Page 15 record on a particular contention need not also promise to provide expert witnesses or outline their testimony. For example, in Pert)', it was sufficient that the proposed intervenor introduced evidence suggestive of a problem. The decision noted that the there was a divergence of opinion which the intervenor could help develop. In the present matter, the County's ability to provide the proffered evidence is indisputable, and similarly, there is a divergence of opinion.

Simply put, the instant Petition should be granted to amplify the safety issues and protect the people of Suffolk County. The Atomic Safety and Licensing Board should recognize that the County has raised valid contentions and has presented sufficient expert documentation for this stage of the proceedings. The County's allegations wvere specific, not conclusory, and the Petition for Late Intervention should be granted.

The Countv raised admissible contentions This issue has already been discussed by the County in its Petition. Briefly, 10 CFR §50.47(a)(1), "Emergency Plans" (in the section on "Domestic Licensing of Production and Utilization Facilities, Standards for Licenses and Construction Permits")

provides that:

... no initial operating license for a nuclear power reactor will be issued unless a finding is made by the NRC that there is a reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.

Furthermore, the same regulation provides that no such finding is necessary for issuance of a renewed nuclear power reactor operating license. Under the cited regulation, the license renewal process assumes that the current licensing basis of currently operating plants provides an acceptable level of safety, With the possible

Page 16 exception of the detrimental effects of aging on certain systems and components and possibly a few other issues.

The evidence presented by Suffolk County shows that under Millstone's current emergency and eVacuation plans, there can be no reasonable assurance that adequate protective measures will be taken in the event of a radiological emergency. Thus, this assumption is an inadequate basis for the current license renewal proceeding. The County's assertion is particularly true wvlhere, as here, the renewed licenses for Millstone Units 2 and 3 will not expire until 2035 and 2045.

The "assumption" provided by 10 CFR §50.47(a)(1) has clearly been shown to be invalid and has been rebutted by the County's papers. No contrary evidence has been raised by the opposing party.

Although under 10 C.F.R. §50.47(a)(1), the issue of off-site emergency plans are usually considered in the context of initial licensing proceedings, the N.R.C. is authorized to grant an exception to the application of a specified Commission rule or regulation, based on1special circumstances with respect to the subject matter of the proceeding. 10 C.F.R. §2.335(b) provides that.

The sole ground for petition of waiver or exception is that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or a provision of it) would not serve the purposes for which the rule or regulation was adopted.

Id. The goal of 10 C.F.R. §50.47(a)(1) is to provide for public safety during a radiological emergency, while expediting license renewal proceedings by excluding specific issues relating to emergency planning The proceedings are to be expedited based upon an assumption that safety is provided. Minimization of harn to the public

Page 17 fiom radiation may be inferred from satisfaction of the sixteen emergency planning standards contained in 10 C.F.R. §50.47(b) and other relevant agency criteria.

Commnon wealth of Alassachuselts v. United States Nuclear Regulatoy Comnmission, 924 F.2d 311 (D.C. Cir. 1991). The assumption of safety is based on compliance with the regulations. The County's papers show that these standards have not been met. The expected population growth (pemlianent and seasonal) and the other factors documented in the County's papers constitute special circumstances; these circumstances eliminate any assumption that public safety x'ill be protected with the existing outdated plans.

These special circumstances are sufficient for a waiver of 10 C.F.R. §50.47(a)(1), insofar as it pertains to when the off-site emergency issues may be considered.

An Affidavit submitted pursuant to 10 C.F.R. §2.335(b) is attached. This Affidavit identifies the aspects of the proceeding for which the waiver is requested and shows wvhy the nile does not serve the purposes for which tile regulation was adopted.

The affidavit states with particularity the special circumstances alleged to justify the waiver or exception requested.

Furthermore, the County has asserted that the 10-mile emergency planning zone should be extended under the particular circumstances presented here. Under 10 CFR

§50.47(c)(2), the ten ( 10) mile regulatory boundary for the emergency protection zone is only a guideline - the exact size and configuration is to be determined in relation to local factors such as demography, topography, land characteristics and access routes. The ten mile zone should be expanded for purposes of emergency planning. No waiver is needed for this purpose, insofar as the regulation already allowvs for adjustments of the zone boundaries due to local circumstances.

Page 18 Conclusion WHEREFORE, in the interests of justice, public health and safety, Petitioner County of Suffolk requests that it be permitted to intervene in the above-captioned proceeding and that it be granted a hearing and opportunity to raise the issues stated in the Petition. More specifically, tile County of Suffolk requests that:

1) Pursuant to 10 CFR §50.47, an evacuation/emergency plan be funded and prepared for the Town of Southold and other relevant areas of Suffolk County;

2) Thle existing emergency/evacuation plans be updated by the Applicant to include current information.

3) That increased coordination between the Applicant and the County of Suffolk be required on a continuing basis.

DATED: Hauppauge, New York March 10, 2005 Respectfully submitted, CHRISTINE MALAFI Suffolk County Attorney Attorneyfor Petitioner 100 Veterans Memorial Highway Hauppauge, New York 11788 (631) 853-4049 B y:

Qssistant County ipnniferb:

Kohn Attorney Millstone Reply Pet. Late Intervention 3-3-05

UNITED STATES OF AMERICA NUCLEAR REGULATORY COIVIMMISSION Berore the Atomic Safety and Licensing Board In the matter of:

DOMINION NUCLEAR CONNECTICUT, INC.

(Millstone Nuclear Power Station, Units 2 and 3)

AFFIDAVIT Docket Nos. 50-336, 50-423 STATE OF NEW YORK )

ss.:

COUNTY OF SUFFOLK )

Jennifer B. Kolhn, being duly sworn, deposes and says that:

1. I am an Assistant County Attorney in the Office of Christine Malafi, Suffolk County Attorney, who represents the Petitioner County of Suffolk, State of New York, in this proceeding. I am admitted to practice in the State of New York.

2. I am familiar with the facts and circumstances in the instant matter based on review of records and filed maintained by the County of Suffolk, discussions with my client and reports made available to the County.

3. This Affidavit is submitted in support of the Petition for Late Intervention and in support of the County's request for a waiver/exception pursuant to 10 C.F.R. §10 C.F.R.

§2.335(b). The County seeks a waiver of 10 C.F.R. §50.47(a)(1), which states that:

(a)(l) Except as provided in paragraph (d) of this section, no initial operating license for a nuclear power reactor will be issued unless a finding is made by the NRC that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.

No finding uider this section is necessary for issuance of a renewed nuclear power reactor operating license.

A wvaiver or exception to the last sentence, in boldface, is sought.

4. The goal of 10 C.F.R. §50.47(a)(1) is to protect the public from radiation, while expediting license renewal proceedings. The proceedings are to be expedited based upon an assumption that safety is provided based on the current license and operating procedures.

5. Minimization of harnl to the public from radiation is inferred from satisfaction of the sixteen emergency planning standards contained in 10 C.F.R. §50.47(b) and other relevant agency criteria. Comninionwealtlh of Afssaclhusetts v. United States ANclear Regulatoiy Comnmiission, 924 F.2d 311 (D.C. Cir. 1991). Thus, the assumption of safety is based on1compliance with the emergency planning regulations.

6. The County's papers show that these standards have not been met. The current and expected population growth in permanent residents, the lack of a sufficient road network to carry persons in the event of an evacuation, and other reasons why the current emergency plans are inadequate are documented in the County's Petition for Late Intervention. The County's Petition also contains documentation concerning outdated infornation in the current Millstone emergency plans and other deficiencies thereof. The County's papers demonstrate that the standards in 10 C.F.R. §50.47 have not been met under the current license. For a more detailed discussion thereof, please refer to the Petition.

7. The deficiencies in the current emergency plans constitute special circumstances.

These circumstances eliminate any assumption that public safety will be protected with the existing outdated plans.

S. Renewal of the Millstone Operating Units 2 and 3 licenses without consideration of these issues will only exacerbate any deficiencies and substantially prolong the applicant's ability to operate without adequate assurance of public safety. The population of Suffolk County will increase, not decrease, thereby making evacuation even more difficult.

9. These special circumstances are sufficient for a waiver of 10 C.F.R. §50.47(a)(1),

insofar as it pertains to when the off-site emergency issues may be considered. The purpose of the rule - protection of public safety - will not be served if the issues raised by Suffolk County are not considered prior to license renewal.

Wherefore, it is respectfully requested that:

I) A waiver of 10 C.F.R. §50.47(a)( 1) be granted, pursuant to 10 C.F.R.

§50.47(a)(1); and

2) The relief requested by the Petition for Late Intervention be granted.

ENNIFER B. KOHN Sworn to before me this 10th )

day of March, 2005. )

Not4P Public j Not2 s6~or

COUNTY OF SUFFOLK OFFICE OF TIHE COUNTY EXECUTIVE Steve Leov COUNTY EXECUTIVE Kevin S. L.aw MkiChuJ. Decring ChkiDeputy C(ounty lxecutiv e Director of Ensironicntnil AllTirs February 23, 2005 Chief, Rules Review and Directives Branch U.S. Nuclear Regulatory Commission Mail Stop T-6 D59 Washington, D.C. 20555-0001 Re: Millstone Power Station, Units 2 and 3, NUREG-1437, Supplement 22

Dear Chief:

A draft supplemental impact statement (SEIS) has been submitted to the Nuclear Regulatory Commission (NRC) by Dominion Nuclear Connecticut, Incorporated concerning the application to renew the operating license for Millstone Power Station, Units 2 and 3 for an additional 20 years. The County of Suffolk finds the document overly narrow in scope, and lacking detail with regard to the issues of concern to the 1.4 million residents of our county. It appears that public notifications to areas in Suffolk County within the 10 and 50 mile emergency planning zones

%vere neglected; that there is no need to rush operating license renewal for the plants decades prior to their license expiration; and, that radiological emergency evacuation plans for Suffolk County were not addressed.

I was dismayed that a public hearing was not held in Suffolk County concerning the renewal application and that the Commission failed to contact local municipalities and environmental groups on eastern Long Island (Supplement 22, Appendix D, Organizations Contacted). An analysis of major points of view concerning significant problems and objections raised by federal, state or local agencies is required by 10 CFR 51.71 in a draft environmental impact statement. In accordance with NRC policy regarding public involvement in reactor license renewal and as Suffolk County residents may be adversely affected by the renewal, we request that a public hearing be held in Suffolk County where the NRC and Dominion can respond to these issues.

Suffolk County views the applications to renew Millstone's operating licenses as premature at this time. The current operating licenses do not expire for periods of 10 and 20 years, until July 2015 for Unit 2 and November 2025 for Unit 3. With the advance of science in the next two decades, it is likely that alternative cleaner energy sources and/or conservation will negate the need for license renewal for outmoded and hazardous nuclear generating plants. It is clearly self-serving for the Commission to conclude that environmental impacts for future generating and conservation alternatives would be greater than those operating Millstone (Supplement 22, pages xix and 8-51). The NRC Fact Sheet on Reactor License Renewtal states that the license renewal I1. LEE DENNISON BUILDING

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2 procedure is expected to take no more than 30 months. Why then is there a push to renew operating licenses decades before it is necessary to perforr such a review?

Suffolk County is an important stakeholder in the application to renew the operating licenses because the plants are located within 10 miles NNE of the tip of Orient Point and seven miles WNW of Fishers Island in Suffolk County. Fishers Island and a portion of the Plum Island Animal Disease Laboratory, nowv operated by the Department of Homeland Security, are located within the Millstone Power Station's primary 10 mile Emergency Planning Zone (EPZ). In the event of an emergency, Fishers Island's residents are to be evacuated to either Newv London or Stonington Harbor and be bused north to Windham, CT. What is the fate of researchers and operations at Plumn Island in the event of a severe accident at Millstone?

A 50-mile Ingestion Planning Zone is identified in the State of Connecticut's Radiological Emergency Plan in tile event that a nuclear plant release is carried beyond 10 miles. This EPZ encompasses virtually all of Suffolk County east of the William Floyd Parkway in Brookhaven Towvnship. Although ingestion suggests an assessment of food and drinking water, a release carried southward to Suffolk County is likely require additional public protective actions, up to and including evacuation. This had been deemed infeasible during the public discourse concerning the Shoreham nuclear plant due to the lack of adequate transportation infrastructure.

Since that era, no new major east-west transportation facilities have been constructed, and there has been a significant increase in the population of eastern Suffolk County. Evacuation of eastern Suffolk County remains an infeasible scenario, a fact we consider to be a major factor impeding renewval of Millstone's operating licenses.

NRC regulations limit commercial power reactor licenses to 40 years, but also permit such licenses to be renewed where appropriate. In the case of Millstone, however, renewal for 20 years is not an appropriate public policy decision. The NRC recognizes that some structures and components of nuclear plants may have been engineered on the basis of an expected 40-year service life. Suffolk County is not reassured by the assumption made by the NRC in NUREG-1437, Vol.1, section 5.3.1.

"1 assessing the impact onl tile environmenifroom postulated accidents dluring the license reneuwal periol, the assuniption hGals been made that the license renewal process vill ensure that (aging effects onl the plant are controlled and that tile probability of ally radioactiv'ereleasesfr-omi accidents ivill not increaseover the license reneitvalperiod."

This does not appear to be a credible position in light of Dominion's statement (Supplement 22, page xviii) that it "did not identifj' ally major plant refurbishmnent activities or inodijications as necessary to support tile continued operatioll of Afillstonefor the license reneiwal period. " The couinty has difficulty reconciling the two positions that, 1) the NRC will "control" the effects of an aging plant forty years into the future, and yet 2) Dominion foresees no major maintenance activity as necessary for safe operation through the year 2045.

Otlier significant issues that are not adequately addressed in the SEIS include:

• The cumulative impact of routine operations to aquatic resources, although recognized as significant for winter flounder (Supplement 22, page 4-56), are not adequately addressed or mitigated by the SEIS.

In the event of a severe accident at Millstone the probability of weighted consequences of a release to groundwater is stated to be small (Supplement 22, page 5-4). However, there is a potential for radioactive fallout directly onto the surface water bodies that serve as the IL.LEEDENNISON BUILDING

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3 Fishers Island water supply. Radiological monitoring and the provision of an alternative public water supply for these Suffolk County residents are not addressed in the document.

• Dominion estimates that the dose to the population within 50 miles of the Millstone site from severe accidents to be betxveen 12.8 and 17.4 person-rem. What is the expected dose to county residents living on Fishers Island and the North Fork that are in considerably closer proximity and wvhat health risks are posed by this exposure?

Thank you for the opportunity to comment oln this proposal and we look forward to hearing your response at a forumn held in Suffolk County.

Sincerely, Steve Levy Suffolk County Executive Cc: Diane Screnci, Public Affairs Officer, United States Nuclear Regulatory Commission, 475 Allendale Road, King of Prussia. Pennsylvania 19406-1415 Kevin Law, Chief Deputy County Executive and General Counsel Paul Sabatino II, Chief Deputy County Executive Christine Malafi, County Attorney Lynne Bizzarro, Deputy County Attorney Michael Deering, Director of Environmental Affairs Brian Harper, M.D. Commissioner, Department of Health Vito Minei, Director, Division of Environmental Quality ILLEEDENNISONBIUILDING

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STATE OF NEW YORK )

)SS:

COUNTY OF SUFFOLK )

The undersigned, being duly sworn, deposes and says: she is over the age of 18 years and associated with the Suffolk County Attorney. That on the 10 ih day of March, 2005 she served the within REPLY and AFFIDAVIT upon those set forth herein by depositing a true copy thereof enclosed in a post-paid properly addressed wrapper in an official depository under the exclusive care and custody of the United States Postal Service wvithin the State of Newv York.

Kathleen A. Dolce Sworn to before me this I Oth day of March, 2005 Notary Public KIRK R.CRONK Notary Public, State Of NWYork No.01 CR6096040 Qualified In Suffolk County rCommission Expires July 21, 2-0 °

Office of the Secretary U.S. Nuclear Regulatory Commission Sixteenth Floor, One White Flint North, 11555 Rockville Pike Rockville, MD 20852 Attention: Rulemakings and Adjudications Staff Office of the Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 David R. Lewis, Esq.

Shaw Pittman LLP 2300 N Street NW Washington, DC 20037-1128 Lillian M. Cuoco, Esq.

Millstone Nuclear Power Station Building 475/5 Rope Ferry Road Waterford, CT 06385 Catherine L. Marco, Esq.

Office of tie General Counsel Mail Stop 0-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Margaret Bupp, Esq.

Office of the General Counsel Mail Stop 0-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 II:munuilav/klnd!litigationi/khlnlnlUSA NRCINfillstone allidavit of service reply 3-10-05