ML20216J265

NRC Staff Response to New England Coalition on Nuclear Pollution Amended Petition to Intervene.* New England Coalition on Nuclear Pollution,Inc Amended Petition to Intervene Should Be Denied.W/Certificate of Svc

ML20216J265
Person / Time
Site:	Yankee Rowe
Issue date:	04/17/1998
From:	Hodgdon A, Marian Zobler NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#298-18958 LA, NUDOCS 9804210337
Download: ML20216J265 (9)

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UNITED STATES OF AMERICA ADJUDDm,Mi $a AFF NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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YANKEE ATOMIC ELECTRIC COMPANY ) Docket No. 50-029-LA

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(Yankee Nuclear Power Station) )

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l NRC STAFF'S RESPONSE TO NEW ENGLAND COALITION i ON NUCLEAR POLLUTION'S AMENDED PETITION TO INTERVENE INTRODUCTION L Pursuant to a " Memorandum and Order" of March 25,1998, issued by the Atomic Safety and Licensing Board (Board) designated in the above-captioned proceeding, the staff of the ' Nuclear 1

' Regulatory Commission (Staff) hereby responds to "New England Coalition on Nuclear Pollution, Inc.'s Amended Petition to Intervene in License Amendment Proceeding for the Yankee Nuclear l Power Station License Termination Plan"(Amended Petition). As discussed below, New England 1

J Ccalition on Nuclear Pollution, Inc. (NECNP) fails to establish standing to intervene in this i

proceeding; thus, its request for a hearing and petition for leave to intervene should be denied.

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l BACKGROUND l

l On May 15,1997, Yankee Atomic Electric Company (YAEC or Licensee) submitted a l

License Termination Plan (Plan) pursuant to 10 C.F.R. Q 50.82(a)(9) for its Yankee Nuclear Power Station (YNPS). On August 14, 1997, pursuant to 10 C.F.R. 50.82(a)(9)(iii), the Nuclear Regulatory Com. mission (Commission) published a notice of receipt of the Plan in the Federal Register. 62 Fed. Reg. 43559 (1997). On December 18,1997, YAEC submitted a request for a license amendment approving the Plan. On January 28,1998, the Commission published a Notice of Consideration ofIssuance of Amendment, Proposed No Significant Hazards Consideration, and Opportunity for a Hearing (Notice). Biweekly Notice; Applications and Amendments to Facility i Operating Licenses Involving No Significant Ha:ards Considerations, Yankee Atomic Electric Company, Docket No.50-029, Yankee Nuclear Power Station, Franklin County, Massachusetts.

i 63 Fed. Reg. 4308-09,4328 (1998).

I On February 24,1998, NECNP wrote the Secretary of the Commission a letter, requesting a hearing on the proposed amendment.' YAEC filed its " Answer to Petition to Intervene and Request for Hearing of New England Coalition on Nuclear Pollution,Inc." on March 11,1998, and on March 16,1998, the Staff filed its response. "NRC StalTs Response to Requests for Hearing" l

(Staffs Response). On March 25,1998, the Board issued an Order directing that any petitioner intendingto amend its petition should file such amendment within seven days of the receipt of the l Citizens Awareness Network (CAN), Nuclear Information and Resource Service (NIRS) and Franklin Regiont.: Phmning Board also wrote letters requesting a hearing on the proposed l amendment. See Letter to Shirley A. Jackson from Citizens Awareness Network, February 26, i 1998, (CAN Letter); Letter to the Office of the Secretary from Nuclear Information and Resource Service, Febmary 27,1998, (NIRS Letter) and Letter to the Office of the Secretary from Franklin Regional Planning Board, Februarv 27,1998 (FRPB Letter).

r Order. Order at 1. The Board further provided YAEC and the Staff with five days afler receipt of any amendmentto file a response. Id. at 2. On April 6,1998, in accordance with an extension of time granted by the Board on April 1,1998,2 NECNP filed its Amended Petition requesting that a hearing be granted on the License Termination Plan and petitioning for leave to intervene.

DISCUSSION ,

I A. NECNP Fails to Establish Standine to Intervene. l The Commission's regulations provide that a petition to intervene, inter alia, "shall set forth j with particularity the interest of the petitioner in the proceeding, [and] how that interest may be

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affected by the results of the proceeding, including the reasons why petitioner should be permitted to intervene, with particular reference to the factors set forth in (Q 2.714(d)(1)]."

10 C.F.R. s 2.714(a)(2). A petition for leave to intervene must also set forth "the specific aspect or aspects of the subject matter of the proceeding as to which the petitioner wishes to intervene." Id.

In determining whether a petitioner has established the requisite interest, the Commission applies judicial concepts of standing. Gulf States Utilitics Co. (River Bend Station Unit 1),

i CLI-94-10,40 NRC 43,47 (1994). In order to establish standing, a petitioner must show that the proposed action will cause " injury in fact" to the petitioner'sinterest and that the injury is arguably within the " zone of interests" protected by the Atomic Energy Act (AEA) or the National EnvironmentalPolicy Act (NEPA). Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 316 (1985). The alleged interest must be concrete and 2

" Motion for Extension of Filing Deadline As to All Parties and Petitioners," granted April 1,1998 (Motion).The Staff and Licensee were provided with a response time of eight days from receipt of any amendment. Motion; see also " Motion for Extension of Filing Deadline (s),"

granted March 31,1998.

particularized, fairly traceable to the challenged action, and likely to be redressed by a favorable decision. Georgia Power Company (Vogle Electric Generating Plant, Units 1 and 2), CLI-93-16, '

38 NRC 25,32 (1993) citing Lujan v. Defenders of Wildhfe, 504 U.S. 555 (l992). An organizatim may establish standing either by demonstrating an injury to its organizational interests or through one ofits members who has individual standing and has authorized the organization to represent his l l

or her interest. See GeorgiaInstitute ofTechnology (Georgia Tech Research Reactor), CL1-95-12, 42 NRC 111,115 (1995).

In its Amended Petition, NECNP seeks to establish representational standing on the basis of the declaration of one ofits members, Jean-Claude van Itallie, who has authorized NECNP to 1

represent his interests. Declaration of Jean-Claude van Itallie, Member of the New England  !

i l Coalition on Nuclear Pollution, Inc., Supporting Organizational Standing (van Itallie Declaration) l l

at 1, j 3. Mr. van Itallie, who lives within six miles of YNPS, states that, if the amendment were l granted, he would suffer adverse consequences due to the release of radiation from the site during the accidents described by David Lochbaum,NECNP's expert,in Mr. Lochbaum's declaration. See 1

NECNP Amendment at 12; van Itallie Declarationat 19. Mr. Lochbaum's concerns relate to heasy load drops in the spent fuel pit, loss ofcoolant in the spent fuel pit and the accidents that might ensue i

from such events. Declaration of David A. Lochbaum, Nuclear Safety Engineer, Union of Concerned Scientists,Concerning TecimicalIssues and Safety Matters Involved in the Approval of the Yankee Nuclear Power Station License Termination Plan (Lochbaum Declaration) at 3-5, j 8.

Mr. Lochbaum correctly notes that the Plan does not describe how irradiated fuel can or will be removed from the spent fuel pit. Id.

It appears that Mr. van Itallie's interests fall within the zone ofinterests protected by the AEA and NEPA. These interests,however, are not interests that could be affected by the outcome of this proceeding,and, thus, do not constitute injury in fact. The scope of this proceeding is limited j l

to whether the License Termination Plan should be approved. See Florida Powcr & Light Co (St. )

I Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21,30 NRC 325 (1989). Thus,any iaterest must be fairly traceable to the approval of the Plan and must be able to be favorably addressed by a decision in this proceeding. Interests that cannot be affected by the approval of the Plan are I

insufficient to provide standing in this proceeding. As discussed below, none of the interests expressed in the Amended Petition are fairly traceable to the approval of the Plan and cannot be addressed by a favorable decision. Thus, NECNP and its member tail to establishing standing.

YAEC'S authorization to move and otherwise manage spent fuel is not affected by the granting or denial of the proposed amendment, as YAEC'S Part 50 license gives it the authority to manage spent fuel and, in fact, gives it the authority under a general license to construct and operate )

an Independent Spent Fuel Storage Installation (ISFSI). See 10 C.F.R. @ 72.210. Thus, the granting or denial of the License Termination Plan will not affect YAEC's authority under Part 50 to manage ,

1 spent fuel. Accordingly, Mr. van Itallie's interest cannot be redressed by a favorable decisien, as l the proposed amendment does not concern the management of spent fuel.

Mr. van Itallie also identifies a concern about the long term effects an ineffectual cleanup of the Yankee Rowe site would have on the value of his property and states "[t] hat the final site condition projected under the License Termination Plan indeed satisfy the NRC's c-iteria for general release is of continuing concern to [him]." Van Itallie Declaration at 2. $16,8. It is difficult to understand how Mr. van Itallie and his representative, NECNP, would seek to protect this interest

in a hearing that might be held on the proposed amendment. YAEC states in its License Termination Plan that the site - specific release criteria presented in the Plan are consistent with the criteria identified in the NRC Site Decommissioning Management Plan (SDMP) Action Plan of April 16, 1992 (57 Fed. Reg.13389). License Termination Plan, Appendix A, A-7. YAEC, therefore, is in compliancewith 10 C.F.R. Q 20.1401(b). See id. It appears that Mr. van Itallie is not challenging j the criteria in the Plan, but is rather concemed about whether YAEC will in fact meet the criteria in the Plan. Since the scope of this proceeding is limited to whether the Plan should be approved, Mr. van Itallie has failed to identify an interest that could be affected by the outcome of this proceeding. Mr. van Itallie, therefore, fails to identify an injury in fact.

B. Aspects As noted above, the Commission'sregulationsin 10 C.F.R. @ 2.714(a)(2) require a petitioner i

for interventionto set forth the specific aspect (s)of the proceeding with respect to which he wishes to intervene. NECNP devotes some twenty pages of its Amended Petition to " aspects." See Amended Petition at 17-37. Under " Outline Aspects,"it reproduces the Table of Contents of the License Termination Plan and questions the adequacy of each item in that table. Amended Petition at 17-21. Under"B. Descriptive Aspects,"NECNP addresses"inadequaciesdealing with high-level J

waste remaining on site;" " inadequacies dealing with environmental issues;" "YAEC's trustworthiness to conduct accurate analyses;" " hazards unanalyzed in the LTP;" " inadequate evaluation of likely accidents;""ALARA compliance;""LTP does not adequately define crucial terms;"" financial /ece,omicaspects: lack of adequate funding assurance;"" site characterization and final survey plan inadequacies;"" inadequacies in LTP proposed contamination sampling;""LTP relies on questionable bases for determining background radiation;" and "LTP inadequately l

9 addresses possible continuing contamination." Amended Petition at 21-38. Several of these aspects concern management of spent fuel, which, as discussed above, is not part of the proposed action. ,

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Others would urge different criteria than those required by the Commission's regulations. For 1

example, NECNP states that YAEC makes reference to measuring cesium-137"with the disclaimer that cesium-137is by and large the result of nuclear weapons - testing fallout." Amended Petition  !

at 36. NECNP observes,"the fact that this measurement continues as a part of site characterization gives little confidence that area background levels. . . have been established to provide a benchmark against which to determine residual dose over background." Id. A look at the definitions in 10 C.F.R. 20.1003 clarifies this matter. " Background radiation" is defined as

"... radiation from cosmic sources; naturally occurring radioactive material, including radon (except as a decay product of source or special nuclear material); and global fallout as it exists in the l environment from the testing of nuclear explosive devices or from l

past nuclear accidents such as Chernobyl that contribute to background radiation and are not under the control of the licensee."

Id.

Thus " background radiation" is a defined term in Part 20, subpart E, and includes fallout.

I Some of these broad topics NECNP labels as aspects might arguably be appropriate aspects

! 1 of the proceeding. Assuming NECNP had established standing, however, NECNP would still need to provide at least one acceptable contention as required by 10 C.F.R. f 2.714(b).

a-CONCLUSION Although, arguably, NECNP may have identified an " aspect of the proposed action, as required by 10 C.F.R. 2.714(a)(2), NECNP has not shown that it might suffer injury-in-fact from the proposed action through injury to its member, Mr. van Itallie, if the license amendment is granted. Thus, NECNP has failed to show that it has standing to intervene in a hearing concerning the proposed action. _ Thus, its request for a hearing and petition for leave to intervene should be i

denied.- I Respectfully submitted, JW . Cece n

[ Ann P. Hodgdon y Counsel for NRC Staff 4

l Marian L. Zobler Counsel for NRC Sta.

. Dated at Rockville, Maryland this 17th day of April,1998 i

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DOCKETED UNITED STATES OF AMERICA USHRC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARE OFFC. .o -i@

In the Matter of ) ((:i[ [ ~- yfjp

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YANKEE ATOMIC ELECTRIC COMPANY ) Docket No. 50-029-LA

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(Yankee Nuclear Power Plant) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S AMENDED PETITION TO INTERVENE

in the above-captioned proceeding have been served on the following through deposit in the Nuclear Regulatory Commission's intemal mail system, or by deposit in the United States mail, first class, as indicated by an asterisk this 17th day of April,1998:

James P. Gleason, Chairman Thomas D. Murphy Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop: T 3-F-23 Mail Stop T 3-F-23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 l

Washington, DC 20555 ,

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Adjudicatory File (2) Dr. Thomas S. Elleman*

Atomic Safety and Licensing Board Atomic Safety and Licensing Board i Mail Stop T 3-F-23 70d Davidson Street I U.S. Nuclear Regulatory Commission Raleigh, NC 27609 Washington, DC 20555 Office of the Commission Appellate Office of the Secretary l Adjudication ATTN: Rulemaking and Mail Stop: 0 16-C-1 Adjudications Staff

'J.S. Nuclear Regulatory Commission Mail Stop: 0 16-C-1 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555

er Atomic Safety and Licensing Board Adam Laipson, Chairman

• Panel Franklin Regional Planning Board Mail Stop: T-3F23 425 Main Street U.S. Nuclear Regulatory Commission Greenfield, MA 01301 Washington, DC 20555 Jonathan M. Block, Esq.* Thomas G. Dignan, Jr.*

New England Coalition on Nuclear R. K. Gad, III Polldtion, Inc. Counsel for Licensee Main Street Ropes & Gray P.O. Box 566 One International Plaza Putney, Vermont 05346-0566 Boston, MA 02110 Deborah B. Katz, President

• Citizens Awareness Network, Inc.

P.O. Box 3023 Charlemont, MA 01339-3023

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h . oc i c CN l Ann P. Hodgdon -

Counsel for NRC Staff i