ML20236F535
| ML20236F535 | |
| Person / Time | |
|---|---|
| Site: | Yankee Rowe |
| Issue date: | 06/27/1998 |
| From: | Katz D CITIZENS AWARENESS NETWORK |
| To: | |
| Shared Package | |
| ML20236F517 | List: |
| References | |
| 98-736-01-LA, 98-736-1-LA, LA, NUDOCS 9807020200 | |
| Download: ML20236F535 (10) | |
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2 i-DOCKETED USHRC UNITED STATES OF AMERICA
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16 3 30 P3 :45 4
l NUCLEAR REGULATORY COMMISSION Before the l
ATOMIC SAFETY AND LICCENSING BOAR 0pFFICE QqKy/aY RULB1..e.~ vjJD ADJUDICAU4S STAFF in the Matter of
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Docket No. 50-029-LA
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ASLBP No. 98-736-01-LA l
YANKEE ATOMIC ELECTRIC COMPANY: )
June 27,1998
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(Yankee Nuclear Power Station)
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1 CITl7. ENS AWARENESS NETWORK'S. INC.
BRIEF ON APPEAL OF LSLBP 98-736-01 Pursuant to 10 C.F.R. S 2.714a, Citizens Awareness Network, Inc. (CAN), hereby appeals ASLBP 98 736-01 (June 12,1998), in which the Atomic Safety and Licensing Board's denied CAN's request for a hearing and petition to intervene in the above captioned proceeding regarding Yankee Atomic Electric Company's (YAEC) License Termination Plan (LTP) for the Yankee Rowe Nuclear Power Station.
I FACTUAL BACKGROUND '
l A. Petition to Intervene On January 281998, pursuant to the Staft's finding of"No Significant Hazard",
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the Commission published a notice of opportunity under 10 C.F.R. S 2.103 in respect to E
the approval of the License Termination Plan (LTP) for the Yankee Nuclear Power
' Station (YNPS) submitted by Yankee Atomic Electric Company (YAEC). 62 Fed. Reg.
4 4300,4327. On February 26,1998, CAN submitted a petition Jo intervene and a series of concerns challenging the Staft's finding due to violations of NRC regulations, federal
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L law, and previously unanalyzed safety issues. CAN submitted two affidavits i
demonstrating that it had standing to intervene on behalf of our members, who would be injured by YAEC's decommissioning and site release activities. One affidavit was by a representative member, Debby Katz. The other was by an expert nuclear engineer, David Lochbaum.
CAN's expert aflidavit. dealt with serious questions concerning the adequacy of-YAEC's LTP, and supporting CAN's challenging YAEC's failure to comply with NEPA and AEC requirements with respect to the choice ofirradiated fuel storage, the LTP's failure to monitor and redress the effects of YAEC's contamination of the human environment, the LTP's lack of adequate environmental assessments for the development I
of an Independent Spent Fuel Storage Installation (ISFSI), the LTP's failure to address
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potential for accidents in the loading of experimental monitored retrievable storage cask, j
J and the LTP's lack of adequate controls or assurances that YAEC would meet the 15 millirem /yr requirement for the Yankee Rowe site B. ASLB-98-736-01 On June 12,1998, the Licensing Board issued a Memorandum and Order ASLBP # 90-736-01-LA, denying CAN standing to intervene and ruling that CAN's concerns were not relevant, significant, or beyond outside the scope of the proceeding.
- 11. Argument As discussed below the Licensing Board erred in denying CAN standing.
CAN believes it has met the basic standing requirements under which a petitioner L
must demonstrate that:(1) it has suffered or will suffer a distinct and palpable harm that j
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constitutes injury-in-fact within the zone ofinterests arguably protected by the governing
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l statute, (2) the injury is fairly traceable to the challenged action,: and (3) the injury is I
likely to be redressed by a favorable decision. CAN has also shown that it has
_ organizational standing by providing a proper amdavit by an individual member who can l
j fulfill the necessary elements of standing and has authorized the organization to represent -
his or her interests.
CAN provided the Panel with an amdavit of a CAN member who resides within t
six miles of Yankee Rowe, and lives within areas of the emuent d". charges from Yankee Rowe. Thus CAN's representative member will receive inadvertent air-borne releases from any accident at the Yankee Rowe site. CAN's representative member asserts that l
she regularly works and recreates in the area, and uses local area roads, that may be employed by trucks canying waste away from the Yankee Rowe facility, CAN's i-representative member also expresses concern in her amdavit about the impacts of i
Yankee Rowe's activities under the LTP, and also activities attendant on the creation of 1
i an ISFSI. Potential mishaps would adversely afTect the safety and health of her and her l
L family and the local environment, and CAN's amant stated that she authorizes CAN to represent her interests in this proceeding.
l-As discussed in the amdavit of CAN's member, her health and safety and quality oflife would be adversely affected by the unsafe or inadequate decommissioning of i
. Yankee Rowe under the proposed LTP; she lives with her family and travels in the close proximity to YRNPS. CAN's affiant would like to be able to use the Deerfield River and 1
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5 the environs in Rowe in proximity to the Yankee Rowe site. Her family would like to swim in the Deerfield River, but do not do so because of their concem about the radioactive waste releases from Yankee Rowe and the contaminated portions of the river
'(both ofTsite and on) that could affect her and her children. Finally, CAN's atTiant is concerned about the impacts of an accident at Yankee Rowe during implementation of the LTP. YAEC's proposal to use dry cask storage ofirradiated fuel poses a risk of a cask drop accident and melt down, with potentially severe offsite consequences, as supponed by the afridavit of David Lochbaum.
CAN's concems, supported by its representative member's affidavit relate to the health and safety, and to the health of the local environment, Thus, they fall within the
" zone ofinterest" protected by the Atomic Energy Act and the National Environmental Policy Act (NEPA). This was acknowledged in the Panel's decision. ASLB Decision at Il-15.
CAN contends that the ASLB erred in failing to find that CAN has standing.
Decommissioning of atomic power reactors constitutes a major federal action, therefore requiring NEPA compliance. CAN v. NRC 59F. 3d 284,294-95 (1995) The NRC staff violated the National Environmental Policy Act by failing to prepare a supplemental EIS for the LTP for Yankee Rowe.
CAN was granted standing in a previous proceeding on the Yankee Rowe decommissioning. (Memorandum and Order,, ASLB No.96-713 DCOM (Marchl, 1996). There the Panel stated "We conclude CAN.... Established.... their standing to intervene and seek relief with respect to alleged health and safety or environmental
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injuries that will be visited upon their members who reside and engage in various activities in the area near to, but outside of, the Yankee Rowe facility. Given that some.
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even if minor. oublic exposures can be anticipated from the decommissioning...we do i-l j
not find ourselves 'in a position at this threshold stane to rule out as a matter of certainty the existence of a reasonable possibility' that decommissioning might have an adverse impact to those, such as petitioner's members, who live or recreate in such proximity to the facility, or use local waste transportation routes. Viruinia Electric and Power Co.
(North Anna Nuclear Power Station, Units I and 2) ASLAB-522,9 NRC 54,56 (1979)."'
l CAN's concerns have not decreased since the last ASLB proceeding. CAN's
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I concerns remain intact. The ASLB Panel states in this case that the petitioner appears to -
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i base injury-in-fact argument primarily on the notion that CAN's representative member l
will be harmed by the storage ofirradiated fuel on site. ASLB Memorandum and Order at t
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CAN is also concerned about proposed high level waste storage under the LTP. In CAN's representative member's affidavit, concerns are raised about the contamination of the site, decommissioning activities, contamination and clean up of the Deerfield River.
CAN contends that the Panel incorrectly treats these matters as previously adjudicated j
rather than dealing with the hearing offered under 10 C.F.R. 50.82 (the new rule). If the j
Panel is right the offer of a hearing is a fake. CAN contends the Commission intended that a hearing be offered, and that under the new rule, decommissioning plan approval is 1
not a license. Ifit were a license, then all interested persons should be offered a hearing in the process of approving the PSDAR.
' ASLAB No. %713-01 DCOM. 3/l/%.p 11
7 The ASLB's opinion repeatedly states that spent fuel s'.orage issues are beyond the scope of the proceeding. ASLAB Memorandum and Order at 12,15. CAN raised the issue of the storage of Greater Than Class C (GTCC) waste because the GTCC waste is still NRC"s responsibility not the responsibility of the DOE. Clean up of this waste and the waste itself are the responsibility of the licensee and the NRC. CAN argues that as long as GTCC waste remains in the fuel pool, what happens in pool (including loss of coolant accidents, fuel handling accidents, water chemistry related accidents) is the NRC's responsibility, if, as CAN contends, the NRC retains responsibility of the GTCC, then any and all accidents related to the continued storage of such waste in the fuel pool j
are NRC 's responsibility and therefore part of LTP and site remediation plan. If an accident in fuel handling occurs at an opera'.ing reactor, the DOE is not called in to 2
investigate or take responsibility (Millstone Fines No.97-180, DER # Event Number-32423 ). The NRC has responsibility for such in operating licensee's actions. While 3
the process of decommissioning under an operating license continues, NRC remains responsible for any and all accidents that occur with the storage of both GTCC waste and irradiated fuel. It is a relevant, supporting fact that, YAEC's LTP makes numerous references to the storage and disposition of GTCC waste.
The ASLB's Memorandum and Order repeatedly state that issues related to spent fuel storage are not germane to the proceeding. ASLB Memorandum and Order 15,15.
Nuclear Regulatory Commission, Office of Public Affairs, No. 98-79, May 21,1998, 2
U.S. Nuclear Regulatory Commission, Operations Center, Daily Event Report Facility: Seabrook Region:
3 1 [ Notification Date: 05/31/97 l l Unit [1] [ ] l Event Date 05/31/ Event Time: 11:30[EDT]i NRC Notified By: Freeman
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The Panel also states that ALARA issues do not pertain. Ilowever CAN argues that l.
ALARA do pertain to the LTP. As CAN had not yet submitted contentions, the ALARA issues pertaining to workers, it had not been raised. CAN did raise concerns that allowing YAEC to decommission the spent fuel pool under a pan 50 license, avoids the health and i
safety requirements of part 72 (as well as the $283,000/ year in license fees to pay for adequate oversight and inspection!).
L in the last YAEC intervention, the ASLB Panel addressed both these issues. The l
ASLB stated "As the staff point out, YAEC's use of dry cask storage is subject to the requirements of 10 C.F.R. Part 72.....This would include the provisions of 10 C.F.R. S 72.40 as they relate to the licensing of an independent spent fuel storage installation
. (ISFSI)..... Thus, when and if YAEC chooses to close its Spent Fuel Pit and move to dry l-cask storage, the choice must undergo an agency approval process that provides for L
among other things, consideration of whether there is compliance with ALARA y
'. objectives and a public hearing opportunity regarding the ISFSI application. Sgg.C.F.R.
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- Section 72.44(d),72.4;: gg. php_ Sacramento Municnal Utility District (Rancho Seco Nuclear Generating Station), LBP-03-23, 38 NRC 200,246 (1993)(given pendency of 1
L separate proceeding regarding ISFSI, contention asserting decommissioning plan 1
L environmental assessment inadequate because oflack of analysis for ISFSI emissions not i
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admissible)."
If this proceeding is not germane to these issues, then what proceeding will afford CAN its'due process rights guaranteed under AEA? By NRC permitting YAEC to create i
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l an ISFSI under a part 50 license, NRC eviscerates CAN's hearing rights and the environmental requirements of Part 72.. Concerns raised by CAN in this proceeding and in our previous proceeding in the Yankee Rowe decommissioning (in which the ASLB Panel ruled that the issues CAN raised concerning irradiated fuel handling, storage, and creation of an ISFS1 would be addressed under Part 72 when the issues were ripe) are now denied by the Panel. CAN argues that this is a violation of AEA, NEPA, and NRC L
regulations under part 72.
l The ASLB in addressing CAN's concerns about site release criteria 13-1,13-16, l
do not address CAN's concerns. YAEC's decommissioning plan approval and site release criteria standards were set prior to the adoption of the new NRC decommissioning rule. NRC and YAEC repeatedly assert that the licensee would meet 1
i the 15 millirem /yr criteria not the 25 millirem /yr criteria adopted by NRC. NRC should j
require YAEC to adhere to the pre-1996 new rule standard (15 millirem /yr as l
committed to by NRC staff and YAEC). As far as CAN understands, YAEC did not request NRC to allow the licensee to meet the lower standard, codified after the approval 1
of the Yankee Rowe decommissioning plan.
C. Summary Additionalissues l
CAN contends that this proceeding is one of precedential importance to the NRC and the citizens of the country. The NRC's new decommissioning rules under 10 C.F.R. 50.82 eliminate any public participation in the first part of decommissioning, yet appear to provide a hearing at the License Termination Plan stage. Is thisjust a deception to ASt.B, Memorandum and Order, ASt.BP 96-713-01-DCOM, at 30 3l March 1,1996,, pp 30-31 d
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10 fool Congress by making it look like the NRC is compiying with 42 USC 2239? CAN -
contends that the NRC intended that this section of 50.82 be interpreted broadly. The ASLB Panel did not bother to examine the clain lancuace of 50.82, which ofTers a hearing on the LTP. Instead the LSAB used the statement of consideration of the I
rulemaking first. This is not the right way to interpret a rule. Also, it leads to a contradiction of the intent of Congress in 42 USC 2239. So, CAN argues that the l
Commission must reverse the ASLB Panel's incorrect interpretation of 50.82.
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Conclusion:
l For the foregoing reasons oflaw, regulations, and fact, the Commission should l
overturn the Panel's decision and grant CAN standing to go forward and file contentions.
1 Respectfully Submitted, L&6/aC i
Deborah B Katz, pro se for404 Box 3023 Charlemont, MA 01339 413-339-5781
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UNITED STATES OF AMERICA 00CKETED NUCLEAR REGULATORY COMMISSION USNRC Before the ATOMIC SAFETY AND LICCENSING BOARD 98 JUN 30 P3 :45 OFF0! ;
5Fr R J "iY In the Matter of
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Docket No. 5
'LA9 - @D
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ASLBP No.
d.Old'lS EIAFF YANKEE ATOMIC ELECTRIC COMPANY
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(Yankee Nuclear Power Station)
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Certificate of Service I, Deborah Katz, pro se representative of the Citizens Awareness Network Inc., do hereby cettify under penalty of perjury that copies of the within documents have on this day FG ofM998, been served pursuant to 10 CFR 2.701 upon the following persons:
James P. Gleason. Chairman Thomas D. Murphy Atomic Safety and Licensing Board Panel
. Atomic Safety and Licensing Board Panel U.S.N.R.C.
U.S.N.R.C.
Washington, DC 20555 Washington, DC 20555 Dr. Thomas Ellman Thomas G. Dignan, Jr. And Roben K. Gad til 704 Davidson Street Ropes & Gray Raleigh, North Carolina One international Place Boston, MA 02110 2624 Jonathan M. Block, Attorney for Mr. Adam Laipson, Chainnan NIiCNP Franklin Regional Planning Board PO Box 566 425 Main Street Putney, Vermont Greenfield, MA 01301 Ann B. Hodgdon, and Martin L. Zobler OfficeofCommission Appellate Adjudication Office of the General Counsel U.S. Nuclear Regulatory Commission U.S. N.R.C.
Washington, DC 20555 Washington, DC 20555 Office of the Secretary Adjudications File Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Panel U.S. NRC USNRC Washington, DC 20555 Washington, DC 20555 D.B. Katz, oro s'e for CAg i
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