ML20059B059

Responds to 931014 Order Which Suppl New Jersey Dept of Environ Protection & Energy 931008 Request & Petition. Believes That Request for Intervention by State Agency Should Be Favorably Considered

ML20059B059
Person / Time
Site:	Limerick, Shoreham  File:Long Island Lighting Company icon.png
Issue date:	10/20/1993
From:	Borden T NEW JERSEY, STATE OF
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
CON-#493-14394 MISC-93-01, MISC-93-1, NUDOCS 9310280015
Download: ML20059B059 (4)

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"*' Olutt Dr Netzt 3rreeg .a3 m m Y in sae, p. .a..,1,o ggnam DEPARTMENT OF LAW AND PUBUC SAFETY DMSION OF LAW xggggfx RICHARD J. HOOM88 JUSTTCg COMPLEX A88187 ANT' ATTORNEY OENERA CN 093 DIRECTOR TRENTON 00828 L609) 633-8109 Octoberh0,1993 '

Samuel J. Chilk Secretary of the Commission U.S. Nuolear Regulatory Commission Washington, D.C. 20,555 Attention: Docketing and Service Branch RE: In the Matter of State of New Jerday's Requests da'ted October 8, 1993 '

Docket No Misc. 93-01

Dear Secretary:

Please accept the following on behalf of the.New Jersey l Department of Environmental Protection and Energy ("NJDEPE") in response to your Order dated October 14, 1993. This submission supplements NJDEPE's October 8, is incorporated here' by reference.1993 In request and petition the Order,:you which requested responses to the following two issues:

1.

NJDEPE's Act ("AEA"),right to a hearing 42 U.S.C. g 2239 under the Atomic Energy Section 189 of the AEA mandates the granting o,f a hearing "upon the request of any person whose interest may be affected" during "any proceeding suspending, revoking, under this chapter, for the granting, or amending of any; license 4 or construction U.S.C. permit, 9 2239(a). or application to transfer; control. " 42  ;

In addition, the Nuclesr Regulatory Commission ("NRC") has adopted regulations at 10 C. F. R. 2.105 which provide adjudicatory interested parties with the right ,to request an hearing.

In the Order, hearing rights underyou requested the AEA as a response regarding the to both PECo and LIPA.

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! l October 20, 1993 Pagp 2 Although this submission addresses your question in separate soctions, NJDEPE does not waive its position in the October 8th request that NRC has violated NEPA by fragmenting the licensing and decision-making process in this matter.

(a) PEL'o's License Amendments '

The AEA at 42 U.S.C. 6 2239(a) clearly provides for the right to request a hearing on any license amendment. The NRC staff published on Opportunity for a Hearing on:PECO's license amendments to receive and possess LIPA's fuel on March $1, 1993. 58 Fed. R_eg. 16851. As described mor6 fuly in the October 8, 1993 request, the March 31, 1993 notice in the Federal Register stated that the fuel was; going to be transported by rail, thus NJDEPE's interests where not 'in jeopardy e + hat time. 58 Fed. Reg. 16867.

A m o's petition for intervention should : be granted;at this date because NJDEPE was only given notice by LIPA on August 9, 1993 that they had finally decided to transport the fuel along New Jersey's coastal zone. By that time, NRC staff had already issued the PEco license amendment. As discussed'in the October 8th petition, NJDEPE is requeeting a hearing on various materin1 issues involving noncomp3 f anc:e with NEPA dnd CZMA. Accordingly, this matter gives rise to a hearing riQht under the AEA.

(b) LIPA's General License Similarly, NJDEPE has requested a hearing regarding LIPA's general license to transport its fuel pursuant to 10 C.F.R., S 71.12. The AEA at 42 U.S.C. g 2239(a) clearly provides for the right to request a hearing on the granting of a license or the i amendment of a license. Since NRC's rules at 10 C.F.R. I 71.12(a) only allow the issuance of a general ;1icense to ,an l existing licensee, LIPA's general license should{ be consideged  ;

either a license amendment or e separate licenseJ Since '42 U.S.C. 0 2239(a) provides for the right to request a hearing on ,

l the granting or amending "any license," NJDEPE may request a hearing on a general. license.

As described more fully in the October 8, 1993 request, NJDEPE is requesti6g a hearing on various material issu'es involving noncompliance with NEPA and CZMA when NRC issued this general license for the subject shipments, C.F.R. 71.12(a) provides that a general licenseNRO's rule at 10 is issued where a certificate of compliance "has been issued by the NRC."

Similarly, 10 C.F.R. 71.12(d) provides that the general license

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October 20, 1.993 Page 3

" applies only when the package approval authorizes use of the package."

On August 19, 1993, NRC issued a " Certificate of Compliance for Radionotive Materials Packages' whtoh specifically addressed conditions for the use of the IF-300 cask for shipping the to PECo by barge. Since NRC never issbed a notice of Opportunity for a Hearing regarding lts approvellof the casks, NJDEPE maintains that this request is cloakly timely. Based on the above, NJDEPE has a hearing right under the AEA.

(c) LIPA's License to Transfer Special Nuclear Material Lastly, since 42 U.S.C. 9 2239(a) provides for the rihht to request a hearing on the granting or amendment of any license, NJDEPE is entitled to request a hehring on LIPA's license to transfer'its fuel. As described inithe October 8, 1993 request, NRC's rules provide that no person:"shall recedve title to, own, acquire, deliver, receive, possess, use, or transfer special ndclear material except as authorized in a license issued by the Commission." 10 C.F.R. 9: 70.3 (Emphasis added). See 10 C.F.R. 9 70.42. The AEA similarly provides for the issuance of licenses and specific license conditions for the transfer of speolal nuclear material. 42 U.S.C. 9 2073.

LIPA's nuolear fuel is characterized as "special nuclear material of low strategio significance" and, ' therefore, 'is covered by the NRC's licensing requirement. 10 C.F.R. 9 70.4.

As with LIPA's general license, NJDEPE maintains that this hearing request is clearly timely since NRC never issued' a notice of Opportunity for a Hearing on this matter.

2. Standards for Intervention NJDEPE's October 8th request set forth the showings and addressed the relevant standards for intervention required by 10 C.F.R. 9 2.714 this submission.,andHowever, these arguments will not be repeated,in recent developments ,

additional provido support for NJDEPE's request to intervene. The availability of other means to protect NJDEPE's interests (10 C_.F.R.  ;

9 2.714(a)(1)(ii)) has been curtailed since the October i

• The factor in 10 C.F.R. 9 2.714 is not relevant to this existing since request no hearing is being held and thus there are ho {

parties. '

To the extent LIPA and PECo are considered existing parties, NJDEPE's interests. NJDEPE maintains that they do not represent 1  !

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l October 20, 1993 Page 4 8th request. On October 12, 1993, Federal District Court Judge Garrett E. Brown dismissed NJDEPE's NEPA claims and granted summary judgement for the defendants on the CZMA claims. Judge Brown reasoned that he did not have jurisdiction to hear the NEPA claims; however, he did not even address the claims regarding CZMA noncompliance as to the NRC licenses.

Although NJDEPE is appealing this decision to the Third Circuit Court of Appeals, the availability of other means!to protect NJDEPE's interests has clearly been limited. NJDEP$'s interests can now best be protected if NRC adequately examines the environmental risks ascociated with the transfer, considers the alternative routes to transport the fuel, and enforces New Jercey's right to review activities for consistency under CZMA.

Lostly, NJDEPE maintains that this request for intervention by a state agency should be favorably considered.

When Congress amended the AEA hearing section at 42 U.S.C. S 2239(a)(2)( A), it specifically required NRC to consult with the State where e facility is located.

Although neither LIPA , or '

PECo are located in New Jersey, the ongoin'g campaign ,of shipments is taking place through New Jersey's waters and along its sensitive coastal zone. NRC's failure to properly consult with New Jersey when it issued various approvals for th$se shipments provides an additional reason that NJDEPE has good cause for intervention at this date.

Respectfully submitted, FRED DeVESA ACTING ATTORNEY GENERAL OF NEW JERSEY '

Attorney for NJDEPE By: J p- -

Thom(s A. dot @

Deputy Attorney General cc: Lawrence J. Chandler, Esq.

Lawrence C. Lanpher, Esq.

Robert Rader, Esq.

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