ML20197D986

NRC Staff Response to State of VT & Commonwealth of Ma Petition to Intervene.* States Have Established Standing to Intervene & Have Identified Aspect of Proposed Amend Request.Certificate of Svc Encl

ML20197D986
Person / Time
Site:	Vermont Yankee
Issue date:	05/20/1988
From:	Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#288-6416 OLA-2, NUDOCS 8806080048
Download: ML20197D986 (9)

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4 00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 88 MAY 24 Pl2:20 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFI'.i Li 'i JJ : -v 00CEig ^;UwI In the Matter of Docket No. 50-271-OLA-2 VERMONT YANKEE NUCLEAR ) (Testing Requirements for POWER CORPORATION ECCS and SLC Systems)

(VermontYankeeNuclearPower )

Station) ) May 20, 1988 NRC STAFF RESPONSE TO STATE OF VERMONT AND COMMONWEALTH OF MASSACHUSETTS' PETITIONS TO INTERVENE I. INTRODUCTION On January 26, 1988, the Nuclear Regulatory Commission published in the Federal Register a notice of opportunity for prior hearing on a pro-posed amendment to revise the Technical Specifications in the Vermont Yankee Nuclear Power Station's license relating to the testing of the remainino train (s) of the Emergency Core Cooling (ECCS) and Standby Liquid Control (SLC)systemswheneveronetrainhasacomponentoutofservice.

53 Fed. Reg. 2114.

On February 25, 1988, the State of Vermont filed a "Petition of the State of Vermont for Leave to Intervene." Also on February 25, 1988, the Commonwealth of Massachusetts filed a "Request for a Hearing and Petition p

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O to Intervene with Respect to Vermont Yankee's Request to Eliminate Certain ECCsandSLCsTestingRequirements."II As discue. sed below, the NRC staff believes that the State and the Commonwealth have set forth an interest and have identified at least one aspect of the proceeding on which they wish to p3rticipate. 10 C.F.R. 62.714(a)(2). Therefore, in the Staff's view, the State and the Common-wealth have satisfied the standards for intervention and should be granted party status after submission of a contention fou'nd to be admissible.

II. BACKGROUND The NRC staff pursued a settlement agreement with the State of Ver-mont. Both the instant amendment request and an amendment request tFat is before another licensing baard and that concerns logic system functional testing were addressed in settlement discussions. As a result of the discussions, the State of Vermont decided to withdraw its request for a hearing on the logic system functional testing matter. Howaver, the State has decided to pursue its intervention on the matter before this Board, testino requirements for the ECCS and SLCS.

s III. DISCUSSION A. The Standards for Intervention

1. The "Interest" Requirements of 10 C.F.R. $ 2.714

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-1/ The NRC staff sought and was granted extensions of time in which to file its response in order to accomodate settlement discussions.

See, Memorandum and Order (Further Extension of Time) May 16, 1988, granting Staff's motion to extend the time for filing a response until May 20, 1988.

Section 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C. $ 2239(a), provides that:

In any proceeding under [the] Act, for the granting, suspending, revoking, 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.

Section 2.714(a)(2) of the Commission's Rules of Practice,10 C.F.R. 9 2.714(a)(2), requires that a petition to interv.ene in a Comission pro-ceeding set forth with particularity:

(1) the interest of the petitioner in the proceeding:

(2) how that interest may be affected by the results of the proceeding; and (3) the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.

In order for intervention to be granted, the petition must be found to satisfy these standards. 10C.F.R.%2.714(d).

In determining whether the requisite interest prescribed by both Section 189a of the Atomic Energy Act and Section 2.714 of the Comis-sion's Rules of Practice is present, the Commission has held that contem-poraneous judicial concepts of standing are controlling. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2),

CLI-76-27, 4 NRC 610, 613-14 (1976). Thus, there must be a showing (1) that the action being challenged could cause "injury-in-fact" to the

person seeking to intervene 2/ and (2) that such injury is arguably within the "zone of interests" protected by the Atomic Energy Act3_/ or the National Environmental Policy Act. 4/ I_d . See also, Warth v. Seldin, 422U.S.490(1975); Sierra Club v. Morton, 405 U.S. 727 (1972);

Association of Data Processing Service Oraanizations v. Camp, 397 U.S.

150,153(1970),

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2. The "Aspect" Requirements of 10 C.F.R. 6 2.714 In addition to demonstrating "interest,'" a petitioner must set ,

forth "the specific aspect or aspects of the sub,iect matter of the pro-  !

ceeding as to which petitioner wishes to intervene." 10 C.F.R. 6 2.714(a)(2). 5/ There is little guidance in NRC case law concerning the t

'-2/ "Abstract concerns" or a "mere academic interest" in the matter which are not acccmpanied by some real impact on a petitioner will not t confer standing. See Exxon Nuclear Company (Ten Applications for '

Low-Enriched Uranium Exports to EUPATOM Member Nations), CLI-77-24, 6 NRC 525, 531 (1977); Pebble Springs, CLI-77-27, supra, 4 NRC at 613.

Rather, the asserted harm must have some particular effect on a peti-tioner, Ten Applications, CLI-77-24, supra, and a petitioner must have some direct stake in the outcome of the proceeding. See, Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 422 (1976).

3/ 42 U.S.C. 5 2011 et seq.

t 4/ 42 U.S.C. 6 4321 et setq.

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-5/ 10 C.F.R. 6 2.714 also requires the petitioner to file ". . . a sup-plement to his petition to intervene which must include a list of the .

contentions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specific-ity." This section further provides: "A petitioner who fails to t file such a supplenet which satisfies the requirements of this para- 1 graph with respect to at least one contention will not be permitted to participate as a party." The NRC staff will respond to the con-tentions set forth in the supplements after their receipt. Accord-  ;

ingly, nothing said here by the Staff regarding the "aspects" of the .

State and the Commonwealth's petitions is intended to apply in any  :

way to satisfaction of the 10 C.F.R. 5 2.714 contention requirements. ,

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meaning of "aspect" as the term is used in 10 C.F.R. 6 2.714; however, a petitioner may satisfy this requirement by identifying general potential effects of the licensing action or areas of concern which are within the scope of matters that may be considered in the proceeding. See, Virginia Electric Power Co. (North Anna Power Station, Units 1 and 2), A!.AB-146, 6 AEC 631, 633 (1973).

B. The State of Vermont's Petition

1. Interest and Injury Regarding its interest, the State of Vermont cites its responsi-bility to ensure that the health, welfare and safety of the people of Verment is not compromised. Petition at 2. Vermont states that issuance of the amendment could result in a significant increase in risk to Ver-mont's citizens if State health, safety and environmental concerns are not addressed. Id.

The Staff believes that the State has adequately set forth its interest and has shown how its interest might be affected by the outcome of the proceeding. Accordingly, the State has made the showing necessary to a finding that it has standing to intervene.

2. Specific Aspects of the Subject Matter of the Proceeding

' The State has identified a number of aspects on which it wishes to intervene. At least one of those aspects, questions con erning whether the proposed reduction in testing will in any way compromise the reliabil-ity of the safety systems installed in the Vermen; Yankee plant, is within the scope of the notice and, thus, of any proceeding that might be con-ducted pursuant to that notice. Accordingly, in the Staff's view, the

State has properly identified st least one aspect on which it wishes to pa-ticipate.

C. The Commonwealth oi Massachusetts' Petition

1. Interest and Injury Regarding its interest, the Commonwealth of Massachusetts states i that several Massachusetts communities are located within ten miles of the Vermont Yankee site and a larne portion of the Commonwealth lies within fifty miles of the site. Petition at 1. With re' gard to injury, the Com-monwealth states that because of the proximity of the site, the health and safety of Massachusetts citizens could be affected by any proceeding re-lated to this amendment request. Id.

The Staf# believes that the Commonwealth has made an adequate showing of its interest and of how that interest might be affected, i.e.

injury. Accordingly, the Canmonwealth has made the showing necessary to a finding that it has standing to intervene.

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2. Specific Aspects of the Sebject Matter of the Proceeding The Commonwealth states that the aspects on which it wishes to participate concern the increased risks to public health and safety at-tending the elimination of the present requirements to test the remaining trains ofsthe emergency core cooling and standby liquid control systems when one train has a component out of service. Petition at 2. The Ccm-monwealth states that such an elimination of testing when necessary redun-dancy is, by definition, lacking raises substantial safety issues which are particularly significant for the Vermont Yankee Nuclear Power Station because of the age of the plant and the fact that it is very vulnerable to i

containment failure in the event of certain accidents. Id. The aspect 4

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s that the Commonwealth has identified is within the scope of the notice and, thus, of any proceeding that might be conducted pursuant to the no-tice. Accordingly, in the Staff's view, the Commonwealth has properly identified at least one aspect on which it wishes to participate.

IV. CONCLUSION For the reasons discussed, the Licensing Board should find that both the State of Vermont and the Commonwealth of Mass'achusetts have estab-lished standing to intervene and have identified at least one aspect of  ;

the proposed amendment request in which they are interested.

Respectfully submitted, m .

D h Ann P. Hodgdon Counsel for NRC Staff ,

1 Dated at Rockville, Maryland this 20th day of May, 1988

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.- 00LKHfD U$NFC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '88 - MY 24 PI2 :20

/ BEFORE THE ATOMIC SAFETY AND LICENSING BOARD h0Ckib..[NNibl-BRANCH In the Matter of Docket No. 50-271-OLA-2 VERMONT YANKEE NUCLEAR (Testing Requirements for POWER CORPORATION ECCS and SLC Systems)

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(Vermont Yankee Nuclear Power )

Station) ) May 20, 1988 CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO STATE OF VERMONT AND COMMONWEALTH OF MASSACHUSETTS' PIT!TIONS TO INTERVENE" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail sys-tem, this 20th day of May, 1988:

Charles Bechhoefer, Esq. Mr. Glenn 0. Bright Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Poard '

U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, D.C. 20555* Washington, D.C. 20555*

Dr. James H. Carpenter George B. Dean, Esq.

Administrative Judge Ascistant Attorney Gereral Atomic Safety and Licensing Board Nuclear Safety Unit U.S. Nuclear Regulatory Commission Department of the Attorney General Washingto'n, D.C. 20555* One Ashburton Place Boston, MA 02108 Atomic Safety and Licensing Jay Gutierrez Board Panel Regional Counsel U.S. Nuclear Pegulatory Comission USNRC, Region I Washington, D.C. 20555 475 Allendale Road King of Prussia, PA 19406*

l David J. Mullett, Esq. R. K. Gad, III Special Assistant Attorney General Ropes and Gray Vermont Depart, of Public Service 225 Franklin Street 120 State Street Boston, MA 02110 Montpelier, VT 05602

+ l Atomic Safety and Licensing Appeal Docketing and Service Section Board Panel Office of the Secretary

'U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comission  :

Washington, D.C. 20555* Washington, D.C. 20555*

• Adjudicatory File Atomic Safety and Licensing Board Panel Docket U.S. Nuclear Regulatory Commission Washington, D.C. 20555*

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And P. Hodgdon V Counsel for NRC Staff r