ML20216F030

Answer to Petition to Intervene & Request for Hearing of Citizen Awareness Network,Inc.* Citizen Awareness Network, Inc Should Be Denied in Entirety for Lack of Standing & Denied in Part as Listed.W/Certificate of Svc

ML20216F030
Person / Time
Site:	Yankee Rowe
Issue date:	03/11/1998
From:	Gad R ROPES & GRAY, YANKEE ATOMIC ELECTRIC CO.
To:	NRC COMMISSION (OCM)
References
CON-#198-18873 LA, LTP, NUDOCS 9803180226
Download: ML20216F030 (4)

Text

o >

DOCKETNUMBER

/ffM PfiCD. & UTIL FAC80 9Y l

00CKETED United States of America USNRC before the Nuclear Regulatory Commission  % MAR 16 P3 :47 OFFG or sco; f ay HULEwn .:a)

In the Matter.of ADJUOiCAME. STAFF YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station) 1 1

ANSWER TO PETITION TO INTERVENE AND REQUEST FOR HEARING OF CITIZENS AWARENESS NETWORK, INC.

On January 28, 1998, the Commission published a notice of opportunity for hearing under 10 C.F.R. $ 2.105 in respect of the approval of the License Termination Plan ("LTP") for Yankee Nuclear Power Station ("YNPS") submitted by Yankee Atomic Electric Company ("YAEC"). 63 Fed. Reg. 4300, 4327. Under date of February 26, 1998, Citizens Awareness Network, Inc. ("CAN") mailed a letter addressed to the Chairman of the Commission, the Commissioners, and other Commission personnel, with a copy to counsel for Yankee Atomic Electric Company

("YAEC"). This letter (the "CAN Letter") purports to request the granting of a hearing on the LTP, which is presently before the Staff for approval under 10 C.F.R. 5 50.82(a)(10). To the extent that it might be considered a request for a hearing and petition for leave to intervene under 10 C.F.R. $ 2.714, YAEC responds to the CAN Letter as follows:

1. Standing. The Commission's rules for standing to intervene are well defined.

The CAN Letter does not demonstrate standing to intervene on the pan of CAN as an organization (nor does CAN claim to have ever acquired c,rganizational standing in any prior proceeding). Likewise, the CAN Letter does not contain the information, and is not accompanied by the instruments, necessary to demonstrate that CAN may l

exercise standing on behalf of one or more of its members. Virginia Electric & Power I Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-536,9 NRC 402,404 l

(1979); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 9803180226 980311 PDR ADOCK 05000029 0 PDR DSO3

n ,

l l l l NRC 73, 77 (1979). Consequently, any request in the CAN Letter for leave to l mtervene and for a hearing must be denied.'

l  ;

2. Aspects of the Proceeding. Under 10 C.F.R. $ 2.714(a)(2), a petitioner for l leave to intervene must identify "the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene." The CAN Letter appears to have identified the following " aspects" that do not constitute a pan of the " subject

matter of [this] proceeding

"

a. Conduct of the Public Meeting. The conduct by the Staff of the public meeting is not an issue litigable in an adjudicatory licensing proceeding.

Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3),

ALAB-812,22 NRC 5, 56 (1985), quoting Pacific Gas and Electric Co. (Diablo )

Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728,17 NRC 777,807, review declined, CLI-83-32,18 NRC 1309 -(1983).

b. Spent Fuel Storage. The LTP is not application by YAEC for any addi-tional authority for the storage of spent fuel at YNPS. YAEC already possesses authority under its Part 50 license for storage in the spent fuel pool.

Likewise, the stated concerns about the storage of spent fuel in dry casks under either YAEC's existing authority perforce 10 C.F.R. $ 72.210 or under authority for which YAEC may someday in the future apply is not within the scope of the LTP proceeding.2 Nor is the LTP approval an appropriate proceeding by which to complain about the provisions of 10 C.F.R. 5 72.210.

'It is sometimes the practice of the Commission and its Boards to allow oversight in standing documentation to be cured after objection has been lodged. However, Yankee respectfully submits that CAN is not a novice in this area, and it is therefore not entitled to a relaxation of the Commission's well-known (and well known to CAN) Rules of Practice.

2The CAN Letter (at 6) contains this statement:

"Moreover, the (License Termination) Plan plainly violates the letter and spirit of Part 72 by allowing the licensee to build and operate an ISFSI under a Pan i 50 license."

(Emphasis added.) As a matter of law, this assertion is false, for whatever Yankee is " allowed" to do under Part 50,it is " allowed

• perforce the promulgation by this Commission of the Part 50 regulations, l

not perforce approval of the LTP.

i i

l c. "No Significant Hazards" Considerations. Whether or not a "no signi-ficant hazards" finding should be made under 10 C.F.R. 5 50.91(a)(2) is not a topic litigable in an adjudicatory license amendment proceeding.10 C.F.R. 5 50.58(b)(6).) "There is no right to appeal the 'no significant hazards determination' itself to the licensing boards or any other body within the agency."^ Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-89-15,29 NRC 493 (1989), citing Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-86-12, 24 NRC 1,4 (1986), rev'd in part on other grounds, San Luis Obispo Mothers for Peace v. NRC,799 F.2d 1268 (9th Cir.1986).

3. Contentions. As CAN has not yet submitted any contentions, no response as to whether any admissible contentions have been proffered can be made.

WHEREFORE YAEC says that, insofar as it constitutes a petition for leave to intervene and request for a hearing, the CAN Letter should be denied in its entirety for lack of standing and denied in part insofar as it has identified non-litigable subjects in respect of which CAN desires to intervene.

= Res ectfully submitted,

( . .

Thomas G. D' nan, fr.

• R. K. Gad m Ropes & Gray One International Place Boston, Massachusetts 02110 (617) 951-7000 Dated: March 11,1998.

5"No petition or other request for review of or hearing on the staff's significant hazards consideration determination will be entertained by the Commission. The staff's determination is final, subject only to the Commission's discretion, on its own initiative, to review the determination."

DOCKETED f f f* 11 M A w

.v R s ' ? w _ i

[

< i CERTIFICATE OF $ERVICEj) sf -

I, Robert K. Gad m, one of the attorneys for Yankee Atomic Electric Comli$1y,lGR 16 i '3:47 hereby certify that on March 11,1998, I served the within pleading in this matter by United States Mail @ - J', '. . ' "- d. 'cy L,.. 1 ...... ~~ c.) as follows: _ , _ .

,e-6RY i0Wkh)

O!N $D Shirley Ann Jackson, Chairman Kenneth C. Rogers, Commi U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory C :TAFF washington, D.C. 20555 Washington, D.C. 20555 Greta J. Dicus, Commissioner Dr. Nils Diaz, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Edward McGaffigan, Jr., Commissioner Jonathan M. Block, Esquire U.S. Nuclear Regulatory Commission Main Street Washington, D.C. 20555 Post Office Box 566 Putney, Vermont 05346 FAX: 802-387-2667 Mr. Adam Laipson, Chairman Mr. James L. Perkins Franklin Regional Planning Board President of the Board 425 Main Street New England Coalition on Nuclear Pollu-Greenfield, Massachusets 01301 tion, Inc.

Post Office Box 545 Brattleboro, Vermont 05302 Mr. Paul Gunter Anne B. Hodgdon, Esquire Nuclear Information and Resource Service Office of the General Counsel 142416th St., NW U. S. Nuclear Regulatory Commission Suite 404 Washington, D.C. 20555 Washington, D.C. FAX: 301-415-3725 Phone: 202-328-0002 Fax: 202-462-2183 Office of Commission Appellate Adjudica- Office of the Secretary tion U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washin n, D.C. 20555 Washington, D.C. 20555 X: 30 72

>L L

t

):',.

R. K. Gad m //

4