ML20217N158

Reply of New England Coalition on Nuclear Pollution,Inc to Yankee Atomic Electric Co & NRC Staff Answers to Amended Petition.* Petitioners to Proceeding Have Standing to Go Forward W/Submission of Contentions.W/Certificate of Svc

ML20217N158
Person / Time
Site:	Yankee Rowe
Issue date:	04/28/1998
From:	Block J NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
References
CON-#298-19024 98-736-01-LA, 98-736-1-LA, LA, NUDOCS 9805050242
Download: ML20217N158 (16)

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! USNRC  !

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION W NAY -4 P3 :23 l Before the l ATOMIC SAFETY AND LICENSING BOARIpFFiCE CF SECHsARY Administrative Judges: RULEMs:1 13 c.lo ADJUDICAI0NS STAFF James P. Gleason, Chairman  !

Thomas D. Murphy i l Dr. Thomas S. Elleman l

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l In the matter of Docket No. 50-029-LA i YANKEE ATOMIC ELECTRIC COMPANY ASLBP No. 98-736-01-LA (Yankee Nuclear Power Station) April 28,1998 REPLY OF NEW ENGLAND COALITION ON NUCLEAR P_QLLUTION. INC.. TO YANKEE ATOMIC ELECTRIC COMPANY'S AND THE NRC STAFF'S ANSWERS TO AMENDED PETITIONS i

I. INTRODUCTION.

New England Coalition on Nuclear Pollution, Inc.(NECNP), a petitioner in the above captioned matter, replies to licensee Yankee Atomic Electric Company's (YAEC) and the Nuclear Regulatory 1 Commission Staff's (NRC Staff) answers to amended petitions to  !

intervene in the proceeding on the approval of YAEC's license l

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l termination plan (LTP) for the Yankee Nuclear Power Station in l

Rowe, Massachusetts (Yankee Rowe).'

i II. BACKGROUND FACTS.

l NECNP re-alleges and hereby incorporates by reference the l

facts as set forth in its amended petition, and accepts, for the purpose of this Reply, the NRC Staff's allegation of facts in its Answer under the heading " Background." NRC Staff's Answer at 2-3 (April 17, 1998). NECNP hereby controverts any other facts anathema to its i

claim of standing or asserted aspects of the proceeding as may be

alleged by the NRC Staff and YAEC.

III. NEITHER YAEC NOR THE NRC STAFF PROVIDE GROUNDS TO UNDERCUT PETITIONERS' STANDING IN THIS MATTER.

-YAEC and the NRC staff unavailingly argue that petitioners have not established standing to appear before the Panel in this proceeding. Based upon the nature and subject matter of the

' NECNP interprets the Panel's Order (March 25, 1998) directing petitioners to file amended petitions as having placed this matter in the following posture: initial filings of the NRC Staff and YAEC responding to the original petitions were premature. Subsequent NRC Staff (April 14,17, and 20,1998) and YAEC (April 13, 1998) filings 'in response" to the amended petitions should be viewed as " Answers" to the petitioners.

NEC'NP therefore adopts this convention herein, referring to the respective

'tesponses" as NRC Staff's Answer (April 14, 17, 20, 1998) and YAEC's Answer (April 13, 1998).

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! 3 l proceeding, and the failure of either the NRC Staff or YAEC to ,

l provide this Panel with any law or evidence refuting NECNP's (or )

l any other petitioner's) claim of standing in this matter, NECNP below l

illustrates why the arguments fail to undercut petitioners' standing to go forward and submit contentions in this proceeding.

YAEC argues that the LTP plan approval / disapproval process at 1 issue here is, rather than a continuation of the approval process for l

decommissioning, a' distinct '1icense amendment" proceeding. This argument is offered to persuade this Panel to apply a higher threshold test for standing than applied in the Decommissioning Plan approval

' process (under which 'inere" proximity was a sufficient basis for l

standing in the same representative organizations). YAEC urges that  !

this distinction is somehow upheld by cases it cites only generally in  ;

support of its position. YAEC's Answer at 4-6, 21-23. The only discussion of YAEC's theory contained in the cited Memorandum and Order of Chairman Jackson is a refutation of a similar argument offered by YAEC to deny petitioners even the offer of a hearing in the original Yankee Rowe decommissioning plan matter. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-95-14 at 6-7, 42 NRC 130 at (1995). Likewise, YAEC's assertion that its

theory that approval of the decommissioning plan constitutes a license encompassing any subsequent NRC requirements for additional l approval is not supported by CAN v. NRC, 59 F.3d 284 (1st Cir.

1995), generally or 'otherwise, id. at 295-296. In fact, the Court found troubling what it viewed as the illegal expansion of the licensing basis which was involved in permitting the commencement of decommissioning at Yankee Rowe prior to NRC Commission approval of a decommissioning plan following a 10 CFR Part 2, subpart G-type hearing. Id.

Quite the contrary to YAEC's position, there is good reason to believe that failure to conduct such proceedings in this instance, where NRC regulations and Notice purport to offer the same, would constitute a violation of 42 U.S.C. 2239 and the holding of CAN v.

NRC. No less a violation would occur were the Panel to accept the l

NRC Staff's and YAEC's arguments excluding consideration of hazards and potential harms to individuals, property, and the human and natural environment due to the LTP insofar as it deals (as required by NRC regulations) with the disposition of irradiated fuel remaining on site. If such considerations--which are clearly part of

- those the NRC Staff's undertook before recommending approval of

5 the plan, 63 FR 4308, 4328, and required under NRC regulations at 10 CFR ) 50.92 and 72.218--are excluded from any consideration in a proceeding such as the one at issue, there would never be a basis for standing in such proceedings, as the LTP approval process comes after 'the major decommissioning is over. Such an interpretation L would make the offer of a hearing under 10 CFR 50.82 a chimera, i

l By its very nature under 10 CFR 50.82 and 72.218, the LTP approval process deals - with the disposition of irradiated fuel l remaining on site. This is a key concern remaining for the NRC (and,

rightly, persons living in the vicinity of Yankee Rowe) even after much of the decommissioning work is over. It is perfectly reasonable that the NRC requires an additional tier of approval which is based, in pertinent part, on the adequacy and sufficiency of the licensee's plan site remediation, the degree of radioactive contamination to remain on site at license termination, and the licensee's plan for dealing with the irradiated fuel and other Greater Than Class 'C' Waste remaining on site. There are other legitimate questions to ask, but, for the purposes of interpreting the plain language of the l

regulations and notices at issue here, the level and extent of i

remaining radioactive contamination on site and the disposal of i

6 irradiated fuel and GTCC waste frame the issues for consideration and provides the underpinning for the very real dangers to person,

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property, and environment which petitioners have referred to in their amended petitions and attached supporting declarations.2 l

2 In this regard, we ask the Panel to carefully review the Declaration of

! David Lochbaum, nuclear safety engineer for the Union of Concerned Scientists. Neither YAEC nor the NRC Staff have chosen to place'any i properly qualified opinion before this Panel to counter Mr. Lochbaum's

! expert evidence and opinion. Additionally, NECNP asks the Panel to note,

! again, that Mr. Lochbaum based his professional opinion of the dangers to l nearby residents upon an inspection of .the LTP, decommissioning plan /FSAR, and other NRC documents. It is the absence of adequate plans in these documents for dealing with the issues Mr. Lochbaum raises which l

lead to his conclusions concerning'the dangers to persons living in the vicinity of Yankee Rowe. See generally, Declaration of David Lochbaum, attached as Exhibit 'B' to NECNP's Amended Petition (April 6, i998).

, YAEC also states, incorrectly, that Mr. Lochbaum has not opined as to the l credibility of a release of radiation during the activities conducted under the LTP. 'YAEC's Answer at 20, n.29, (i). This is not the case, as perusal of the Declaration will reveal to almost anyone.

YAEC challenges NECNP's declarant's expertise to judge that his property's value would be diminished in the event of an accident with serious off-site consequences or failure to affect final site remediation. Id.

at (ii). We ask the Panel to take notice of the commcnly accepted view that a person such as Mr. van Itallie, unless proven otherwise, is competent to know the value and extent of what he owns and to understand its potential

and actual increase and diminution in value. YAEC has neither alleged nor offered any evidence that Mr. van Itallie does not own his property, is incompetent, or living beyond the distance alleged in Mr. van Itallie's l Declaration. As YAEC suggests that a diminution in the value of Mr. van Itallie's property has, logically, already occurred due to existing on-site storage of radioactive waste, it is quite logical to impute further diminution l in the value of his property were any one of Mr. Lochbaum's postulated accidents to occur.

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7 A. Petitioners' standing remains uncontroverted.

The essence of the NRC Staff's and YAEC's arguments against standing for NECNP and CAN hinge upon the exclusion of the consideration of storage and management of irradiated fuel under the LTP. NRC Staff's Answer to NECNP at 5-6, NRC Staff's Answer to CAN at 5-6, YAEC's Answer at 17-23, 23-24 . In fact, the NRC Staff even goes so far as to concede standing to NECNP and CAN under the Atomic Energy Act and the National Environmental Policy Act. NRC Staff Answer to NECNP at 5, NRC Staff Answer to CAN at 5.

Allegedly, the proceeding before this Panel is the approval or disapproval of YAEC's license termination plan. 63 FR 4308-4330 (January 28,1998). In pertinent part, the core matters in the decision i

to approve or disapprove the LTP are this Panel's determination as to i

l whether: '

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1. 'ID]ecommissioning and fuel storage ac tivities described in the License ~ Termination Plan are consistent with those in the j approved Decommissioning Plan."Id. at 4328; t 2. 'IS]ystems,' structures, or components that could initiate or be required to enitigate the consequences of an accident are

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affected by the proposed change in any way not previously evaluated in the approved Decommissioning Plan. Id.

3. The LTP creates 'the possibility of a new or different kind of accident from any accident previously evaluated."Id.

l 4. "All decommissioning and fuel storage activities described in the License Termination Plan are consistent with those in the approved Decommissioning Plan."Id.

5. Any changes proposed in the LTP 'hffect plant systems, structures, or components in any way not previously evaluated in the approved Decommissioning plan" and whether any ' hew or different failure modes will be created." Id.

6. The LTP involves "a significant reduction in a margin of safe ty." Id.

The LTP must also meet NRC regulatory requirements. In pertinent part, NRC regulations require in an application for j termination of the reactor operating license under Q 50.82 that the licensee submit a description of how spent fuel stored under the general license will be removed from the reactor site.10 CFR 72.218.

l A plan for management and removal of the spent fuel is also required under 10 CFR 50.54(bb). The LTP must include a site

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characterization, identification of the remaining dismantlement

activities, plans for site remediation, detailed plans for the final radiation survey, a description of the end use of the site, if restricted, an updated site-specific estimate of remaining decommissioning costs, 1

and a supplement to the environmental report, pursuant to { 51.53, describing any new information or significant environmental change associated with the licensee's proposed termination activities.10 CFR 50.82 (a)(9)(ii) (A) -(G).

YAEC and the NRC Staff's arguments that the issue of disposition of the irradiated fuel is beyond the scope of. this proceeding is not supported by the regulatory requirements cited above. Moreover, the conclusion is, as argued above, completely inconsistent with the subject matter of the NRC Staff's examination of the LTP under the no significant hazards consideration. If YAEC and the NRC staff are correct about the narrow scope of the LTP approval process and the exclusion of the issue of disposition of Greater Than Class 'C' Waste and irradiated fuel, why did the NRC Staff conduct a no significant hazards determination? Why did YAEC need to apply for approval if the LTP7 In fact, if, as YAEC argues, everything is already included in the 1icense" granted by approving 1

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the Decommissioning Plan, why did it bother to take any actions at l all?

I In fine, LTP approval is required, as'was decommissioning plan approval, within .the compass of a regulatory scheme allegedly designed to comply (at a minimum) with the Atomic Energy ~ Act (AEA), Nuclear Waste Policy Act, and National Environmental Policy Act (NEPA). Not only have the. petitioners shown that they have standing to participate in this proceeding under the AEA and the NEPA, they have predicated their standing arguments upon proximity to the nuclear reactor site, real dangers remaining in the implementation of the LTP, inadequacies in the existing i FSAR/ decommissioning plan, and properly supporting declarations of representative individual members and an expert in nuclear engineering safety.

Finally, the Franklin County Regional Council of Governments planning department--curiously so adamantly attacked by both YAEC and the NRC . Staff--has demonstrated that it has standing as a governmental entity. 10 CFR 2.715(c). The fact that the Planning Department is a legitimate governmental entity is attested to by the very letter the NRC Staff proffers to question the Department's right 1 i

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- to petition for a hearing.3 YAEC's argument that the Department does l

not deserve a hearing because it has ' confessed' to not having filed a petition is too absurd to credit as a serious argument--it is, on its face, a suggestion contemptuous of this Panel's Order directing any interested persons to amend their petitions. Order (March 25, 1998).

l The Planning Department represents, as it told the Panel,26 towns of 1

the county in which Yankee Rowe is situated. The NRC Staff's and j YAEC's attempts to demean the filings of a party without legal representation and of limited financial resources is the kind of insult to even the lowest standards of due process of law which this Panel l

should soundly rebuke.

l The Department has made some errors in its filings, but it has been honest with the Panel and the parties. Plainly, if there is to be a proceeding, representation of the interests of the 26 towns is something to encourage rather than deny. Mr. Laipson's initial filings on behalf of the Department show that, as a planning agency, l

l ' It is an opened and interesting question as to who or what pronipted Mr.

Councilman to write to Panel Chairman Gleason. Likewise, as neither the Panel nor Mr. Councilman provided a copy of the letter at issue to NECNP or CAN, _.it is also an interesting question as to how the NRC Staff attorney's came into possession of it. On information and belief, the letter was not publicly available on April 14, 1998, the date that the NRC Staff filed its Answer to the Franklin Regional Council of Governments Planning Department's Petition to Intervene.

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12 they have reasonable concerns about the final remediation of the Yankee Rowe site. Moreover, their concerns are well within the aspects of the proceeding recognized by all other petitioners. Finally, as planners for their county with the personnel resources of State and county government available to them, the Franklin County Regional Council of Governments Planning Department has a legitimate and-significant contribution to make to this proceeding, along with NECNP and CAN.

IV. NEITHER YAEC NOR THE NRC STAFF PROVIDE GROUNDS TO UNDERCUT PETITIONERS' IDENTIFIED ASPECTS OF THE PROCEEDING IN WHICH PETITIONERS WOULD INTERVENE.

NECNP asks the Panel to carefully examine the filings placed before them. No legal or evidentiary bases have been provided to undercut any of the aspects of the proceeding which petitioners have identified as those in which they would intervene. Petitioners have properly and reasonably identified subject matters relating to the LTP. The adequacy, sufficiency, accuracy, and competence of the LTP is at issue in this proceeding. This proposition is supported by NRC regulations as well as the NRC's Staff's own inquiry into the LTP. Compare 63 FR 4308, 4328 (January 28,1998) and 10 CFR 50.82, 72.218.

13 The NRC Staff's determination, pursuant to 10 CFR 50.92, that the LTP involves no significant hazards may not be appealed to the Commissioners. In fact, the ' proposed" determination, absent intervention by the Commissioners, provides YAEC with the basis to begin implementation of the LTP pending the outcome of this proceeding. The offer of a hearing contained in the Federal Register notice of January 28, 1998, would be a fraud upon the public, and patent violation of Section 189 of the Atomic Energy Act, 42 U.S.C.

2239, were NRC regulations to bar interested persons from challenging these findings in the post hoc hearing process. That this is a fact may be readily ascertained by review of the congressional documentation of the history of the so-called Sholly Amendments to the Atomic Energy Act.

NECNP and other petitioners have provided the Panel and parties with a blueprint for examining the LTP. Any more than a cursory reading of the " aspects" proffered by NECNP, the Franklin Regional Council of Governments Planning Department, and CAN, readily reveals that the identified aspects are germane.to any rational examination of the LTP. Everything YAEC has proposed in the LTP is open to inspection to see if it in fact meets the requirements of

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l NRC regulations and federal laws. Moreover, unless the Panel  !

accepts the NRC Staff's and YAEC's arguments that the LTP approval is a narrow, administrative process which does not involve issues associated with continued irradiated fuel storage and management, any like-based objections by the NRC Staff and YAEC to identified aspects must also fall.

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The Panel is confronted with the proverbial " fish or cut-bait" l

situation: if the parties have standing based upon the dangers involved in the proposed methods of continued storage and management of irradiated fuel, they most certainly have an interest in seeing that any aspects of the LTP dealing with (or failing to deal with) such issues is fair grounds for intervention.' NECNP contends that the alternative to this proposition is an unacceptable violation of federal statute and NRC regulations promulgated under that statute.

See generally, 42 U.S.C. 2239; 10 CFR 50.82, 72.218; 63 FR 4308, 4328 (setting forth procedures and subject matter which l

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• Of course if the Panel chooses to accept the NRC Staff's and YAEC's I argume.a o, it such issues are outside the scope of the proceeding and, henci- o r. . form the basis of any harm which confers standing or

, rov .- a legitimate aspect of the proceeding in which to intervene, the pie'.. r.n of the patent violation of Section 189 of the Atomic Energy Act, ,

42 ;'.S.C. 2239, and facial violations of 10 CFR 50.82 and 72.218, comes i to the fore.

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.e g 15 j include, in pertinent part, irradiated fuel storage issues). Hence, petitioners' identified aspects form a reasonable basis for the subject l matters of intervention as they are consistent with the subject matters of the NRC Staff's evaluation of the LTP and the requirements under 10 CFR 50.82 and 72.218.

V. CONCLUSION.

For the foregoing reasons, pursuant to applicable federal law and NRC regulations, petitioners to this proceeding have standing to j go forward with the submission of contentions concerning the aspects of the proceeding identified in the amended petitions.

l l Respectfully submitted:

1 n.,,,rA k M fonathan M. Block

. Attorney for NECNP I

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i DOCKETED  !

USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 116 MAY -4 P3 :23 Before the  !

ATOMIC SAFETY AND LICENSING BOARD OFFICE CF SECh , ARY RULEA%K.!NGG AND l In the matter of ) ASLBPNo.9Mr0EtF MAFF ,

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

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(Yankee Nuclear Power Station) )

CERTIFICATE OF SERVICE I, Jonathan M. Block, counsel for New England Coalition on Nuclear Pollution, hereby certify that on this 28th day of April,1998, the documents listed in the cover letter to the Office of the Secretary have been served pursuant to 10 C.F.R. 2.701 upon the following:

! James P. Gleason, Chairman Thomas D. Murphy Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel  ;

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comnussion  :

Washington, D.C. 20555 Washington, D.C. 20555  :

Dr. Thomas S. Elleman Adjudications File (2 copies) 704 Davidson Street Atomic Safety and Licensing Board l Raleigh, NC 27609 U.S. Nucleu Regulatory Commission Washington, D.C. 20555 Office of the Secretary (original + 2 copies) Ann P. Hodgdon and Marian L. Zobler Rule = Wags and Adjudications Staff Office of General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission ,

Washington, D.C. 20555 Washington, D.C. 20555 3 I

Thomas G. Dignan, Jr. and Robert K. Gad III Adam Laipson, Chairman Ropes & Gray Franklin Regional Planning Commission l One International Place 425 Main Street Boston, MA 02110-2624 Greenfield, MA 01301 Debby Katz, President Office of Commission Appellate Adjudication i Citizens Awareness Noork,Inc. U.S. Nuclear Regulatos) Commission P.O. Box 3023 Washington, D.C. 20555 Charlemont, MA 01339-3023 Wh W I

/ Jonathan M. Block