ML20216F094

Answer to Petition to Intervene & Request for Hearing of Nuclear Info & Resource Svc.* Nirs Ltr Should Be Denied in Entirety for Lack of Standing & in Part for Listed Reason. W/Certificate of Svc

ML20216F094
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-#198-18876 LA, NUDOCS 9803180249
Download: ML20216F094 (4)

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esw.iurii rAc.5 h 4 4 DOCKETED USHRC United States of America before the w nm 16 P3:49 Nuclear Regulatory Commission OFFICF OF SECTUJW RULEhr AG AND ADJUDICATIONS STAFF In the Matter of YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station)

ANSWER TO PETITION TO INTERVENE AND REQUEST FOR HEARING OF NUCLEAR INFORMATION AND RESOURCE SERVICE On January 28, 1998, the Commission published a notice of opponunity 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 I February 27,1998, Nuclear Information and Resource Service ("NIRS") mailed a letter addressed to the Secretary of the Commission, with a copy to counsel for Yankee Atomic Electric Company ("YAEC"). This letter (the "NIRS 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. 5 2.714, YAEC responds to the NIRS Letter as follows:

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

The NIRS Letter does not demonstrate standing to intervene on the part of the NIRS as an organization (nor does NIRS claim to have ever acquired organizational standing in any prior proceeding). Likewise, the NIRS Letter does not contain the information, and is not accompanied by the instruments, necessary to demonstrate that NIRS may j 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 9803180249 980311 PDR ADOCK 05000029 0 PDR ,

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(1979); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),' LBP-79-1, 9 NRC 73, 77'(1979). Consequently, any request in the NIRS Letter for leave to intervene and for a hearing must be denied.

2. Aspects of the Proceeding. Under 10 C.F.R. $ 2.714(a)(2), a petitioner for 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 NIRS Letter, and the attachment to it (republishing certain comments purportedly e ubmitted by NIRS to the public meeting in January,1998), appears to have identified the following " aspects" that do not constitute a part 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 Pacffic 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 liame 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. Nor is the LTP approval an appropriate proceeding by which to complain about the provisions of 10 C.F.R. $ 72.210.

c. "No Significant Hazards" Considerations. Whether or not a "no signi-ficant hazards" finding should be made under 10 C.F.R. $ 50.91(a)(2) is not

'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 NIRS 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 NIRS) Rules of Practice. E.g., General Public Utility Nuclear Corp. ,

(Oyster Creek Nuclear Generating Station), LBP.%23,44 NRC 143 (1996).

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1 a topic litigable in an adjudicatory license amendment proceeding. 10 C.F.R.

$ 50.58(b)(6).2 "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 NIRS has not yet submitted any contentions, no response ]

as to whether any admissible contentions have been proffered can be made. j l

WHEREFORE YAEC says that, insofar as it constitutes a petition for leave to ]

intervene and request for a hearing, the NIRS . 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 NIRS desires to intervene. )

fully submitted,

. . I Thomas G. D' an,Jr.

R. K. Gad III -

Ropes & Gray One International Place Boston, Massachusetts 02110 (617) 951-7000 i

Datea. March 11,1998.

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

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l hereby certify that on March 11,1998, I served the within pleading in this matter by United

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States Mail ( . - 'n as follows: n rt! ~ - ~

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l Shirley Ann Jackson, Chairman Kenneth C. Rogers, Commiss U.S. Nuclear Regulatory Commt FAi.u N//7 ' MJD j 3] App l U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Greta J. Dieus, Commissioner Dr. Nils Diaz, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission l

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 Bond 425 Main Street New England Coalition on Nuclear Pollu- l Greenfield,'Massachusets 01301 tion, Inc.

Post Office Box 545 Brattleboro, Vermont 05302  ;

I 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 l Phone: 202-328 @ 02 Fax: 202-462-2183 Office of Commission Appellate Adjudica- l Office of the Secretary tion U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 15-1672

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R. K. Gad m i

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