ML20211D733

NRC Staff Response to Petition to Intervene Filed by State of Vt.* Petition Satisfies Standing & Aspect Requirements of 10CFR2.714 Re Util Application to Amend License to Increase Storage Capacity of Spent Fuel Pool

ML20211D733
Person / Time
Site:	Vermont Yankee
Issue date:	02/18/1987
From:	Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20211D721	List: ML20211D717 ML20211D733 ML20211D759
References
OLA, NUDOCS 8702240110
Download: ML20211D733 (7)

Text

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DOCKETED UPl? C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 87 FEB 20 m:27 BEFORE TIIE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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Vermont Yankee Nuclear Power ) Docket No. 50-271-OLA Power Corporation )

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(Vermont Yankee Nuclear Power )

Station)

NRC STAFF RESPONSE TO PETITION TO INTERVENE FILED BY THE STATE OF VERMONT I. INTRODUCTION On December 31, 1986, the Nuclear Regulatory Commission published in the Federal Register (51 Fed. Reg. 47,324) a notice entitled, " Vermont Yankee Nuclear Power Corp.; Consideration of Issuance of Amendment to Facility Operating License and Proposed No Significant Ilarards Consider-ation Determination sw> Opportunity for Hearing." The notice concerned Vermont Yankee Nuclear Power Corporation's (the Licensee) April 26, 1986 application for an amendment to its operating license for the Vermont Yankee Nuclear Power Station, located in Vernon, Vermont. The pro-posed amendment would revise the Vermont Yankee Technical Specifica-tions to authorize the Licensee to increase the storage capacity of the spent fuel pool from 2000 fuel assemblies to 2870 assemblies.

The notice also stated that on June 18, 1986, the Commission had issued a Bi-weekly Notice of Applications and Amendments to Operating Licenses Involving No Significant Hazards Considerations (51 Fed. Reg.

22,226), which included notice concerning the proposed amendment of the 8702240110 870218 PDR ADOCK 05000274 g PDR

. Vermont Yankee license. The notice of June 18, 1986 included the Com-5 mission's proposed determination that the requested amendment involved no significant ha::ards considerations, offered an opportunity for comments en the Commission's proposed determination and offered an opportunity for the Licensee to request a hearing on the amendment and for persons whose interest might be affected to petition for leave to intervene. It failed, however, to provide the notice required by the Commission's regu-lation implementing Section 134 of the Nuclear Waste Policy Act of 1982, i.e. 10 C.F.R. 5 2.1107. Section 2.1107 requires that the notice of pro-posed action published in the Federal Register concerning an appifcation for an amendment to allow expansion of spent fuel pool storage capacity identify the availability of hybrid hearing procedures. The Commission's notice of December 31, 1986 supplied the information regarding hybrid hearing procedures required by 10 C.F.R. I 2.1107 and stated that any person whose interest might be affected and who wished to invoke the hybrid hearing procedures should file a written petition for leave to intervene.

On January 29, 1987, the State of Vermont filed a " Petition to Inter-vene" (petition). The NRC staff's response to the State's petition is set forth below.

II. DISCUSSION The State of Vermont requests a hybrid hearing. The requirements of 10 C.F.R. I 2.714 are applicable to hybrid hearings. 10 C.F.R.

l I 2.1107. Only parties may request the hybrid procedures. However, l

j Vermont's request is pursuant to the Commission's renotice of

. December 31, 1986, limiting timely petitions to those seeking to invoke the hybrid procedures.

A. The Standards for Intervention

1. The " Interest" Requirements of 10 C.F.R. I 2.714 Section 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C. I 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 reauest of i

any person whose interest may be affected by the pro-ceeding, 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.

S 2.714(a)(2), requires that a petition to intervene in a Commission 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 Atomic Safety and Licensing Board designated to rule on petitions to intervene and/or requests for hearing must find that the petition satisfies these standards.1#

~1/ Intervention may also be granted as a matter of discretion to a peti-

tioner who is not entitled to intervention as a matter of right if the l petitioner can show that the Commission's specific criteria weigh in l

favor of discretionary intervention. See, Portland General Electric j Company (Pebble Springs Muclear Plant, Units 1 and 2), CLI 76-27, 4 NRC 610, 616 (1976). Since the State of Vermont has not ad-(FOOTNOTE CONTINUED ON NEXT PAGE) i

In determining whether the requisite interest prescribed by both Section 189a of the Atomic Energy Act and Section 2.714 of the Com-mission's Rules of Practice is present, the Commission has held that con-temporaneous 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 (1970). Thus, there must be a showing (1) that the action being challenged could cause " injury-in-fact" to the i person seeking to intervene 2,/ and (2) that such injury is arguably within the " zone of interests" protected by the Atomic Energy Act 3,/ of the National Environmental Policy Act. O Id. See also, Warth v. Seldin, 422 U.S. 490 (1975); Sierra Club v. Morton, 405 U.S. 727 (1972);

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

150, 153 (1970).

(FOOTNOTE CONTINUED FPM PREVIOUS PAGE dressed these criteria , which is its burden (Nuclear Engineering Company (Sheffield. Illinois, Low-Level Radiation Waste Disposal Site), ALAB-473, 7 NRC 737, 745 (1978)), discretionary intervention will not be discussed further.

-2/ " Abstract concerns" or a " mere academic interest" in the matter which are not accompanied by some real impact on a petitioner will not confer standing. See, Exxon Nuclear Company (Ten Applications for Low-Enriched Uranium Exports to EURATOM Member Nations),

CL1 77-24, 6 NRC 525, 531 (1977); Pebble Springs, CLI-76-27, su-pra, 4 NRC at 613. Rather the asserted harm must have some paf-ticular effect on a petitioner, Ten Applications, CLI-77-24, su ra, and a petitioner must have some direct stake in the outcome o te proceeding. See Allied-General Nuclear Services (Barnwell Fuel Re-ceiving and Eage Station), ALAB-328, 3 NRC 420, 422 (1976).

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

4/ 42 U.S.C. I 4321 et seq.

. 2. The " Aspect" Requirements of 10 C.F.R. I 2.714

In addition to demonstrating " interest", a petitioner must set forth "the specific aspect or aspects of the subject matter of the proceed-ing as to which petitioner wishes to intervene." 10 C.F.R.

5/

, 5 2.714(a)(2). While there is little guidance in NRC case law concerning the meaning of " aspect" as the term is used in 10 C.F.R.

I 2.714, it appears that 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. 6_/ See, Virginia Electric and Fower Co. (North Anna Power Station , Units 1 and 2), A LAD-146, 6 AEC 631, 633 (1973);

Ffetropolitan Edison Co. (Three F.lile Island Nuclear Station, Unit 1), Li-censing Board " Memorandum and Order Ruling on Petitions and Setting Special Prehearing Conference", dated September 21, 1979, slip op. at 6 (unpublished Order).

-5/ 10 C.F.R. I 2.714 also recuires the petitioner to file ". . . a sup-plement to his petition to intervene which must include a list of the l contentions which petitioner seeks to have litigated in the matter, I and the bases for each contention set forth with reasonable specific-ity." This section further provides: "A petitioner who fails to file such a supplement which satisfies the requirements of this paragraph l with respect to at least one contention will not be permitted to par-l ticipate as a party." The NRC staff will respond to the contentions set forth in the supplements after their receipt. Accordingly, noth-ing said here by the Staff regarding the petition's " aspects" is in-tended to apply in any way to satisfaction of the 10 C.F.R. 5 2.714 contention requirements.

-6/ The subject matter of the proceeding for purposes of identification of

" aspects" relates to the question of public health and safety of the l proposed action (issuance of the amendment) and not the procedural determination made by the Commission staff concerning whether or

not the proposed action involves a "significant hazards considera-tion . " See, 5148 Fed. Reg. 7747 (March 6,1986).

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. B. The State of Vermont's Petition

1. Interest and Standing The State of Vermont states that it has a clear responsibility to insure that the health, welfare and safety of its people is not compro-mised by an improvident granting of the proposed license amendment.

Petition at 2. It further states that an increase in storage capacity of the spent fuel pool and the subsequent filling of that capacity could cre-ate increased risk to the public in the event of an accident involving the pool. Petition at 2-3. Thus, the Staff believes that the State has ade-quately 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 of Vermont has identified eight aspects on which it wishes to intervene. At least one of the aspects that the State identifies, "cuestions concerning the extent to which increased spent fuel storage would exacerbate the effect of a severe accident," (Petition at 4) is with-in 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 l State of Vermont has properly identified at least one aspect on which it wishes to participate.

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. III. CONCLUSION As discussed above, the NRC staff believes that the State of Ver-mont's petition satisfles the standing and " aspect" requirements of I 2.714.

Respectfully suhnitted, w \ NOc cT U Ann P. Hodgdon CotniseI for NRC Staff Dated at Bethesda, Maryland this 18th day of February,1987 I

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