ML20151W648

Petitioners Response to 980902 Show Cause Order of Aslb.* Proceeding Re 980818 Petition Should Be Dismissed,Per 10CFR50.58(b)(6).Petitioner Entitled to Hearing on Merits of License Amend Granted to Licensee.With Certificate of Svc

ML20151W648
Person / Time
Site:	Zion  File:ZionSolutions icon.png
Issue date:	09/10/1998
From:	Kohn S AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA, NATIONAL WHISTLEBLOWER CENTER
To:	Atomic Safety and Licensing Board Panel
References
CON-#398-19511 98-750-06-LA, 98-750-6-LA, LA-2, NUDOCS 9809160059
Download: ML20151W648 (6)

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00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'98 SEP 14 P12:24 ATOMIC SAFETY AND LICENSING BOARD Bef w Administrative Judges: OFH

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Thomas S. Moore, Chairman ACL i.

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Dr. Jerry R. Kline Frederick J. Shon

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In the Matter of ) Docket Nos. 50-295/304-LA

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COMMONWEALTH EDISON COMPANY ) ASLBP No. 98-750-06-L A

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(Zion Nuclear Power Station, )

Units I and 2) ) September 10.1998

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PETITIONER'S RESPONSE TO THE SEPTEMBER 2.1998 SHOW CAUSE ORDER QE T!!EA.S1,I}

On September 2,1998 this Board issued a "show cause" order concerning the petition to intervene filed by the petitioners on August i8,1998. The Board's Order stated:

The Petitioners shall show cause why their August 18,1998 petition should not be dismissed as precluded by the Commission's regulations,10 C F.R. s 50 58(b){6).

Order issued in ASLBP No. 98-750-06-LA (September 2,1998).

Petitioners Committee for Safety at Plant Zion, Mr. Randy Robarge and Mr. Edwin Dienethal hereby file there response to the show cause order.

RFSPONSE i

L PROCEDURAL BACKGROUND On August 12,1998 the U.S. Nuclear Regulatory Commission published a "Hiweekly Notice in the Federal Register. In its introductory paragraph, this Notice stated as thhom 1

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This provision grants the Commission the authority to issue and make immediately l effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.

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63 Federal Reoister No.155, p. 43200 (August 12,1998).

i This portion of the Federal RegisteJ: notice applies to the "No Significant Hazards" determination issued for Plant Zion and is the subject matter of the instant petition to intervene This provision restates the law which gives the " Commission the authority" to " issue and make immediately effective" the proposed amendments to Plant Zion's operating license Itafa restates the law which provides the Commission the authority to take this action "notwithstandmg the pendency before the Commission of a request for a hearing." Again, this aspect of the Eederal Reaider notice unquestionably applies to the current action. In this case, hir. Dienethal, one ot' i the petitioners in this case, also applied for a hearing on the underlying license amendments and the "No Significant Hazards" determination was issued while that request for a hearing was l

pending.

Thus, the Federal Register notice referenced the Commission's legal authority to take certain action in regard to the "No Significant Hazards" matter. Thereaf ter, on pages 4r i< i of the Federal RegistcI notice, the Commission issued a public notice ofits determination on the "No Significant Hazards" determination related to the Zion facility. Specifically, on page 4 U 16 the Commission gave" Notice ofIssuance of Amendments to Facility Operating Licenses" and thereafter printed specific references to each plant in which the Commission had issued the amendments based on the "No Significant Hazards" determination. The reference to Commonwealth Edison's application was contained on the following page of the register. EL p.

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l 43217.

In reference to the Commonwealth Edison amendments, the Commission stated as follows in the Federal Register:

During the period since publication of the last biweekly notice, the .Conunissina b:n b '

the following amendments. The Commission has determined ihr each of these i

amendments that the application complies with the standards and requirements of the l Atomic Energy Act .

1 hL p. 43216 (emphasis added). l l

The Petitioners in this case filed their request for a hearing within thirty days of the l publication of the Commission's action in the Federal Reuister.

H. ARGUMENT l

This case concems the legal significance of the August 12,1998 Federal Reuister notice wherein the Commission publicly published its determination to issue the proposed amendments to the Zion nuclear facility pursuant to a "No Significant Hazards" determination. Thus, the issue in this proceeding concems the rights of the various parties when the " Commission" issues an amendment following a "No Significant Hazards" determination The Applicant and the NRC Staff have pointed this Board to the regulanon ap; canny . -

10 C.F.R. 50.58(b)(6). This regulation is of general application to all"No Significant Ha/ards" detenninations issued by NRC " staff' and discusses petitions for review of the " staffs determination." However, this regulation is not controlling in this case.

This proceeding concerns an amendment to a Class 104 license issued under 10 C F.R s

. 50.21(b). The NRC has special regulations related to "No Significant Hazards" determinations related to this sub-class of NRC licenses. As a matter ofinterpreting the NRC regulations, 3

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t regulations of specific application { regulations which specifically apply to Class 104 licenses issued under 10 C.F.R. @ 50.21(b)) would apply in this case.

The NRC has published regulations which specifically relate to the issuance of"No Significant Hazards" determinations concerning Class 104 licenses issued pursuant to 10 C.F R 4 50.21. This rule is found at 10 C F.R. f 2.105. This rule concerns a parties right to a hearing when a " hearing is not required by the Act or this chapter." 10 C.F.R. s 2.105(a). In such circumstances, the NRC has an exception to the general rule that no hearings are permitted on l

matters related to "No Significant Hazards" determinations. If such a determination is made in a l proceeding related to a Class 104 license issued under 10 C.F.R. s 50 21(b), a hearing is allow ed on that determination.10 C.F.R. 2.105(a)(4)(i). These rules are fully consistent with the

! relevant provisions of the Atomic Energy Act,42 U.S.C.. { 2239(a)(2)(A).

1 The controlling regulation states as follows:

If the Commission determines under Q 50.58 of this chapter that the amendment invoh es i

no significant hazards consideration, though it will provide notice of opportunity for a hearing pursuant to this section, it may make the amendment immediately efrective and grant a hearing thereafter . .

10 C.F.R. { 2.105(a)(4)(i).

In this case the " Commission" made the determination referenced in 10 C.F.R. s 2.105(aX4Xi)in its August 12'h Federal Register notice. In that notice the NRC specifically reported to the general public nat the " Commission has determined" thai the amendment i was requested by Commonwealth Edison and which is at issue in this case, could be granted prwr to granting the hearing on the petition for intervention filed by Mr. Dienethal. Once the Commission made this determination, in accordance with the above-referenced regulation. the 2

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petitioners in this case had the right to petition for a " hearing" on the Commission's ruling have such a hearing after the issuance of the amendment.

Thus, the petitioners have the right to a hearing on the "No Smniticant t h<m A" determination made by the Commission and published to the general public on Angmt 12. locs i

10 C.F.R. 2.105(a)(4Xi). They also have the right to " meaningful" participation in NRC i proceedings related to the granting of the amendment under the "Solly Amendment" process, including the right to a " hearing after the license amendment takes effect." Senate Rep No 97-113, p.14,1982 U.S. Code Cong. & Admin. News 3592,3598."

Consequently, this proceeding should not be dismissed pursuant to 10 C.F.R. Q 50.58(bX6). Instead, Petitioners' are entitled to a hearing on the merits of the license amendment provisionally granted to Commonwealth Edison under the Solly Amendment process and are entitled to a hearing on all matters directly or indirectly related to the merits of the determination published by the Commission in the August 12,1998 l ederaLRegister notice rebted to the h ,

nu.%r facility.

CONCLUSION For the foregoing reasons, Petitioner's August 18,1998 petition should not be dismissed.

i fully dbm~ tied, Steph M. on KOHN, KOIIN & COLAPINTO, .C.

3233 P Street, N.W.

Washington, D.C. 20007 l 202-342-6980 (phone)

' 202-342-6980 (fax)

Attorney for Petitioners 340/nshshowcause 5

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7-7 00CKETEO UNITED STATES OF AMERICA USHRC NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING BOA.W SEP 14 P12 :2  ;

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In the Matter of )

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OFgf I'F "[

ADJUdC/m TAFF COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-295/304 LA

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(Zion Nuclear Power Station, Unit 1 and 2) ) ASLBP No. 98-750-06-LA

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CERTIFICATE OF SERVICE I l

I HEREBY CERTIFY that a copy of the foregoing was served by first class mail, postage prepaid, and by facsimile transmission (where indicated), on this 10th day of September,1998,  !

upon:

l l Office of Commission Appellate Frederic J. Shon Adjudication i

! Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel l Washington, D.C. 20555 Mail Stop- T-3 F23 U.S. Nuclear Regulatory Commission l

Washington, D.C. 20555 Jerry R. Kline David W. Jenkins, Senior Counsel Adminimtrative Judge Robert E. Helfrich, Senior Counsel Atomic Safety and Licensing Board Panel Commonwealth Edison Company Mail Stop - T-3 F23 Law Department Room 1535 l U.S. Nuclear Regulatory Commission 125 South Clark Street Washington, D.C. 20555 PO Box 767 l Chicago, IL 60603 l

Also served via Fax No. 312-394-3456 Sherwin E. Turk Thomas S. Moore, Chairman Office of the General Counsel Atomic Safety and Licensing Board Panel Mail Stop 15 B18 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatosy Commission Washington, D.C. 20555 Washington, D.C. 20555 Also served Fax No. 301-415- 25 Also served via Fax No. 301-415-5599

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by

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Stephen M. Kohn i

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