ML20216F133

Answer to Petition to Intervene & Request for Hearing of Franklin Regional Planning Board.* Planning Board Ltr Should Be Denied in Entirety for Lack of Standing & Denied in Part as Listed.W/Certificate of Svc

ML20216F133
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-#198-18874 LA, LTP, NUDOCS 9803180270
Download: ML20216F133 (5)

Text

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/h7f DOCKET NUMBER PROD. & UTIL FAC.

g DOCKETED 1 USNRC United States of America before the 16 MAR 16 P3 :48 Nuclear Regulatory Commission OFFICE OF SECT RULEM.%:A .s 3 w

ADJUDIOMONS STAFF In the Matter of I

Docket No. 50-029-LTP YANKEE ATOMIC ELECTRIC COMPANY j (Yankee Nuclear Power Station) 1 ANSWER TO PETITION TO INTERVENE AND REQUEST FOR HEARING OF FRANKLIN REGIONAL PLANNING BOARD On January 28, 1998, the Commission published a notice of opportunity for hearing under 10 C.F.R. 5 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 27,1998, " Franklin Regional Planning Board" mailed a letter addressed to the Secretary of the Commission and the Office of General Counsel, with a copy to counsel for Yankee Atomic Electric Company ("YAEC"). This letter (the " Planning Board 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 letter as follows:

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

The Planning Board Letter does not demonstrate standing to intervene on the part of the Planning Board as an organization (nor does the Planning Board claim to have ever j acquired organizational standing in any prior proceeding). Likewise, the Planning j l

Board Letter does not contain the information, and is not accompanied by the

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instruments, necessary to demonstrate that the Planning Board may exercise standing on behalf of one or more of its members. Virginia Electric & Power Co. (North Anna l

9803100270 980311 PDR ADOCK 05000029 G PDR _

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Nuclear Power Station,' Units 1 and 2), ALAB-536,9 NRC 402,404 (1979); Detroit p Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-791, 9 NRC 73, 77 (1979), Consequently, any request in the Planning Board Letter for leave to intervene and for a hearing must be denied. ,

l (The Planning Board letter does not specifically address 10 C.F.R. $ 2.715(c), nor does it demonstrate that the Planning Board, described only as "a broad-based coalition l l comprised of a representative from the Selectboard and Planning Board of each'of the twenty-six (26) towns of Franklin County, eighteen (18) at large members living within

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the County, and the members of the Franklin Regional Council of Governments l Executive Committee," is a municipal government representative within the meaning l of 5 2.715(c). In Massachusetts, the Board of Selectmen is an elected collegial group  !

' having certain powers with respect to the collection of taxes, the appointment of town I

officers, and the like,2 and the Planning Board exercises certain functions with respect-I to the approval of plans for the subdivision of land.2 There is no indication in the

! Planning Board Letter either that the Planning Board has any governmental function of its own, or that it has been authorized to speak for any other governmental agency.

See Public Service Company ofNew Hampshire (Seabrook Station, Units 1 and 2), ALAB-862, 25 NRC 144,146 (1987).5 Therefore, there is no basis in the Planning Board Letter for the Commission to approve $ 2.715(c) status for the Planning Board l (assuming such status has been requested).)  ;

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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 I l

'G. L. (1996'ed.) ch. 41, $$ 20 et seg.

! 'G. L. (1996 ed.) ch. 41,55 81K et seg.

5 Affirming a Licensing Board order ruling that "(Section 2.715(c)] contemplates that a government

j. unit of a State, county, municipality or agency will be provided a forum for expression of concerns." l

- (Emphasis in onginal.) Whether a petitioner for 5 2.715 status has the legal authority to speak for a state  !

or municipal government body is a question of state law. Under Massachusetts law, the county of I Franklin County was abolished as a municipal corporation by St.1996, ch.151,5 567, effective July 1, 1997. The Franklin Regional Council of Governments was created to perform certain functions, and the Franklin Planning Board appears to have merely an advisory function to the Council. Id.

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the proceeding as to which petitioner wishes to intervene." The Planning Board Letter l 1

appears to have identified the following " aspects" that do not constitute a pan of the i

" subject matter of [this] proceeding:"

a.- ' Fun, ding. The Planning Board requests funding from the Commission in the j amount of $100,000 " forthwith." The Commission is not empowered to- j fund prospective or actual intervenors. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), CLI-80-19,11 NRC 700,702-03 (1980);

NuclearRegulatory Commission (Financial Assistance to Panicipants in Com- I mission Proceedings), CLI-76-23,4 NRC 494 (1976).  ;

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b. Conduct of the Public Meeting. The conduct by the Staff of the pubhc j 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). l

c. Dismantlement. YAEC has an approved Decommissioning Plan for the

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dismantlement of YNPS. YankeeAtomicElectric Co. (Yankee Nuclear Power Station), LBP-96-18,44 NRC 86 (1996), rev'd denied, Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-9,44 NRC 112 (1996). The LTP is not application by YAEC for any additional authority for the dismantlement of YNPS, and issues relating to dismantlement are therefore not within the scope of any LTP proceeding.

d. Spent Fuel Storage. The LTP is not application by YAEC for any addi-tional author.ity 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 3

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. S 72.210.

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

$ 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 the Planning Board 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 Planning Board 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 the Planning Board desires to intervene.

Res ectfully submitted, N

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Thomas G. D,gnan, i Jr.

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

'"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 t

to the Commission's discretion, on its own initiative, to review the determination."

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00CKEIED

1. 1. eue n

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'+ t, CERTIFIdATE OF SERVICEl l I, Robert K. Gad m, one of the attorneys for Yankee Atomic Electric Compan%doMAR lt P3 :48 l hereby certify that on March 11,1998, I served the within pleading in this matter by United States Mail 6< 11 d~ ;aA:~^d 'y E :L . . -.- ~:-..) as follows: g .

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O_u . . H.y Shirley Ann Jackson, Chairman Kenneth C. Rogers, Commissi ,fM 'D U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission AFF l Washington, D.C. 20555 Washington, D.C. 20555 l

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 i 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 i 425 Main Street New England Coalition on Nuclear Pollu-L 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 l

Suite 404 washington, D.C. 20555 Washington, D.C. FAX: 301-415-3725 Phone: 202-328-0002 Fax: 202-462-2183 l

Office of Commission Appellate Adjudica- Office of the Secretary )

tion .

U. S. Nuclear Regulatory Commission l U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 g 15-1672

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R. K. Gad m

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