ML040760961

Letter of David Lewis Objecting to the 3/1/2004 Burton Letter and Emphasizing That the Burton Petition to Intervene Was Still Premature

ML040760961
Person / Time
Site:	Millstone
Issue date:	03/04/2004
From:	Doris Lewis ShawPittman, LLP
To:	Annette Vietti-Cook NRC/SECY
Julian E
References
50-336, 50-423
Download: ML040760961 (2)

Text

ShawPittman LLP 1 ~

A Limited Liabilily Paltnership liicludn@ Professional Corporations D LEWIS D A ~ R.

202.663.8474 David.Lewk@shawpittrnan.com March 4,2004 RECEIVED L ISNRC, Secretary March 4, 2004 (3:30PM)

U.S. Nuclear Regulatory Commission OFFICE OF SECRETARY Washington, D.C. 20555-0001 RULEMAKINGSAND Attn: Rulemakings and Adjudications Staff ADJUDICATIONS STAFF In the Matter of Dominion Nuclear Connecticut, Inc.

(Millstone Power Station, Units 2 and 3)

Docket Nos. 50-336 and 50-423

Dear Ms. Vietti-Cook:

On February 12,2004, the Connecticut Coalition Against Millstone (CCAM) filed a Petition to Intervene and Request for Hearing with regard to the renewal of the operating licenses held by Dominion Nuclear Connecticut, Inc. (DNC) for the Millstone Power Station, Units 2 and 3. By letter dated February 13,2004, DNC observed that CCAMs petition was premature since the application for renewal of the Millstone operating licenses is still undergoing an acceptance review by the NRC staff and has not yet been docketed.

CCAM now asserts, in a letter dated March 1 ,2004 to the Office of the Secretary (CCAM Letter), that because CCAM filed its petition prior to recent changes to 10 C.F.R. Part 2, the Coalition Petition proceedings must be conducted pursuant to the old 10 CFR Part 2 rules. CCAM Letter at 2. This assertion is without merit. The new Part 2 rules apply to proceedings noticed on or after the effective date of the new rules, unless otherwise directed by the Commission. 69 Fed. Reg. 2,182 (2004). The date of CCAMs premature hearing request is therefore irrelevant. Moreover, the notice that initiates a proceeding is a notice of proposed action under 10 C.F.R. 6 2.105 (or a notice of hearing under 10 C.F.R. 0 2.104 when a hearing is mandatory). See 10 C.F.R. 6 2.318(a) (A proceeding commences when notice of hearing or notice of proposed action under 0 2.105 is issued.).

Washington, DC Northern Virginia New York Los Angeles 2300 N Street, NW Washington, DC 20037-1128 202.663.8000 Fax: 202.663.8007 www.shawpittman.com London

Secretary US.Nuclear Regulatory Commission March 4,2004 Page 2 A notice of proposed action is required for any reactor operating license, must provide an opportunity for hearing, and must be issued as soon as practicable after the application is docketed. 10 C.F.R. 5 2.105(a)(10). Consistent with these regulations, the scenarios in the NRCs guidance on the Applicability of Old and New 10 CFR Part 2 to NRC Proceedings all depend on when the notice of docketing and opportunity for hearing is issued. See http://www.nrc.gov/what-we-do/regulatory/adjudicatory/applicability-of-old-new-pa~2.html.

CCAMs identifies the ninth scenario in the NRCs guidance as particularly apt.

That scenario describes a proceeding where a notice of docketing and opportunity for hearing is published on the NRC web site before February 13,2004. With respect to the Millstone license renewal applications, a notice of docketing and opportunity for hearing has not been published.

Finally, CCAM states that new 10 C.F.R. 5 2.309(b)(4)(ii) provides that a hearing request is timely if filed within sixty days after the requestor receives actual notice of a pending application. CCAM Letter at 3. It is remarkable that CCAM suddenly relies on the new rules after arguing their inapplicability. In any event, 10 C.F.R. 5 2.309@)(4)(ii) does not allow CCAM to request a hearing on a license renewal application before the sufficiency review is completed. 10 C.F.R. 8 2.309(b)(4) applies only in a proceeding for which a notice of agency action is not published. As previously discussed, a reactor license renewal proceeding commences with the issuance of a notice of proposed action, after the sufficiency review is completed and the application is docketed.

CCAMs intervention request remains premature and without effect. CCAMs views regarding the applicability of the new rules, which apparently prompted the premature intervention request, are simply wrong.

Respectfully submitted, David R. Lewis Counsel for Dominion Nuclear Connecticut, Inc.

cc: Nancy Burton