ML20236N878

NRC Staff Response to Franklin Regional Planning Board Appeal of LBP-98-12.* Commission Should Deny Franklin Regional Planning Board Appeal & Should Affirm Licensing Board Decision in LBP-98-12.W/Certificate of Svc

ML20236N878
Person / Time
Site:	Yankee Rowe
Issue date:	07/14/1998
From:	Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#398-19314 LA, LBP-98-12, NUDOCS 9807160035
Download: ML20236N878 (12)

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00CKETED USNRC UNITED STATES OF AMERICA  % JUL 15 Pb:13 NUCLEAR REGULATORY COMMISSION 7

BEFORE THE COMMISSION O{;[;j.,f >J p ,

ADJUL ' c .~ l 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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NRC STAFF'S RESPONSE TO FRANKLIN REGIONAL PLANNING BOARD'S APPEAL OF LBP-98-12 l

I l Ann P.Hodgdon Counsel for NRC Staff i

July 14,1998 9807160035 980714 i PDR ADOCK 05000029 i PDR O Dh u-----------_--_---_-----

July 14,1998 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 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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NRC STAFF'S RESPONSE TO FRANKT IN REGIONAL PLANNING BOARD'S APPEAL OF LBP-98-12 INTRODUCTION On June 29,1998, Franklin Regional Planning Board (FRPB) filed an appeal from the Atomic Safety and Licensing Board's " Memorandum and Order (Decision on Standing),"

LBP-98-12, dated June 12,1998. Pursuant to 10 C.F.R. I 2.714 a (a), the staff of the Nuclear Regulatory Commission (Staff) files this response. As discussed below, the Staff opposes FRBP's appeal and urges the Commission to deny it and to affirm the Licensing Board's decision in LBP-98-12.

BACKGROUND On January 28,1998, the Commission published a notice of opportunity for a hearmg concerning Yankee Atomic Electric Company's License Termination Plan -(LTP) for its Yankee l

Nuclear Power Station (YNPS). Biweekly Notice: Applications and Amendments to Facility l

Operating Licenses InvoMng No Sigmpcant Hazards Considerations, Yankee Atomic Electric

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. Company, Docket No.50-029, Yankee Nuclear Power Station, Franklin County, Massachusetts, 63 Fed. Reg. 4308-09, 4328 (1998).

On February 27,1998, FRPB wrote a letter to the Commission's Secretary, in which FRPB requested a hearing. On March 6,1998, the Secretary referred FRPB's request, along with three other letter requests, to the Atomic Safety and Licensing Board Panel's Chief Administratiw Judge for appropriate action. On March 9,1998, the Panel's Chief Administrative Judge j

estab ished a Licensing Board to rule on the referred requests for hearing. 63 Fed. Reg. 13077 (1998).

On March 11, 1998, Yankee Atomic Electric Company (YAEC) filed its " Answer to Petition to Intervene and Request for Hearing of Franklin Regional Planning Board"; on March 16,1998, the NRC Staff filed its " Response to Requests for Hearing."

On March 25,1998, the Licensing Board issued a Memorandum and Order authorizing amended petitions to intervene and on April 6,1998, FRPB filed such an amended petition,

" Amendment to Franklin Regional Planning Board's Request for Hearing." YAEC filed a response on April 13,1998, " Response of Yankee Atomic Electric Company to Amendments to i

Petition to Intervene," and, on April 20,1998, the Staff filed its response, "NRC Staff's Response I to Amendment to Franklin Regional Planning Board's Request for Hearing."

On June 12,1998, the Licensing Board issued its Memorandum and Order (Decision on  !

! Standing), LBP-98-12, Yankee Atomic Electric Co. (Yankee Nuclear Power Station),47 NRC On June 29,1998, FRPB filed its appeal.

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! c' DISCUSSION l

In its brief on appeal, FRPB argues that the Licensing Board erred in denying it standing.

l Brief at 1. A licensing board's detennination regarding standing is entitled to substantial deference absent an error of law or an abuse of discretion. International Uranium (USA) Corp, l

(White Mesa Uranium Mill, Alternate Feed Material), CLI-98-6,47 NRC 11,118 (1998) citing Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12, l 42 NRC 111,116 (1995). ' The Licensing Board neither committed an error of law nor abused its l discretion in LBP-98-12. The Commission should, therefore, deny FRPB's appeal and affirm

- LBP-98-12.

In its decision, the Licensing Board considered FRPB's arguments regarding organizational l and representationalstanding, its participation under 10 C.F.R. I 2.715(c) of the Commission's l

! regulations and " discretionary standing." With regard to organizational standing, the Board

! concluded that FRPB had not established that its purported organizational interests (planning for l the district within its mandate to protect public health and safety) would be adversely affected by l

I the acceptance of the License Termination Plan. LBP 98-12, slip op. at 17. The Board found 1~

FRPB's allegations regarding harm to its interests from the proposed s.ction to be far from l

l particularized and to be offsite concerns tied to the plant's past operation and current i

decommissioning, both activities that are already licensed and not within the scope of the proceeding. Id.

With regard to representationalstanding, the Board found that FRPirs affiant, Daniel B.

' Hammoch, had not demonstrated that he had suffered or would suffer harm from the proposed i- a

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action likely to be redressed by a favorable decision. LBP 98-12 at 19. Thus, FRPB had riot l

l shown that it had standing on a representational basis. Id.

With regard to participation under 10 C.F.R. I 2.715(c), the Board pointed out, among other things, that the provision is applicable to participation by a person not a party. In light of the failure of New England Coalition on Nuclear Pollution (NECNP) and Citizens Awareness Network (CAN) to demonstrate their standing under 10 C.F.R. I 2.714 to cause a hearing to be held, the Board concluded that there would be no proceeding in which FRPB could participate l

pursuant to i 2.715(c). LBP 98-12 at 20. l With regard to " discretionary standing," the Board, applying the standards set forth in

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Portland GeneralElectric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27,4 NRC 610, 616 (1976), found that FRPB had not shown that it could make a valuable contributionto the decision-making process and that, with regard to the other factors in the Pebble Springs test, l

FRPB had not provided sufficient information to allow for a conclusion regarding those factors.

LBP-98-12 at 22-23. Thus, the Board denied FRPB's request for " discretionary intervention."

Id. .

l On appeal, FRPB points to five instances of what it regards as Licensing Board error with respect' to the Board's disposition of FRPB's standing claims. Contrary to FRPB's assertions, none of the Board actions of which FRPB complains constitutes reversible error on the Board's part in regard to FRPB's standing claims.

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1. It was not error for the Board to consider the letter of March 26,1998 of Brad C.

Councilman, Chair of the Franklin Regional Council of Governmerds, to Judye Glaamn.

FRPB states that the Board erred in accepting and giving weight to the unsolicited correspondence of Brad C. Councilman, Chair of the Franklin Regional Council of Governmens (FRCOG), dated March 28,1998, to Judge James P. Gleason. Brief at 1. FRPB states that the ASLB erred in considering the letter's representations as a basis to deny the FRPB pandne as an organization and a government entity. Brief at 2. With regard to organizational standing, FRPB is simply mistaken. The Licensing Board treats that matter at pages 16-17 of its decision.

Nowhere in those pages does it refer to Chairman Councilman's letter. The Board treats representatiomi standing at pages 17-18 of LBP-98-12 and, similarly, nowhere in its discussion of this matter does the Licensing Board refer to Chairman Councilman's letter.

1 The Licensing Board does reference Chairman Councilman's letter in the context of

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discussing FRPB's participation pursuant to 10 C.F.R. I 2.715(c). The Board states: l l

Even assuming the FRCG [ Franklin Regional Council of Governments) could be considered a section 2.715(c) government entity, we do not find  ;

the affidavit attached to the FRPB Petition to be a delegation of authority to the FRPB to represent the interest of the Franklin Regional Council of Governments. The Licensing Board received a letter, dated March 26,1998 from Brad C. Councilman, Chair, Franklin Regional Council of Governments, which informed the Board that the FRPB is an advisory board and is not acting l on behalf of the Council of Governments. Such a delegation of authority would require a clear and convincing showing that the delegation was legal l and within the power of the delegating authority to delegate. No such showing has been made and accordingly the Board denies standing under this provision of the regulations. LBP-98-12 at 20.

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In the Board's analysis, FRPB, being an advisory body, could not on its own satisfy 10 C.F.R.

I 2.715(c) standards for participation and could represent the Council of Governments only if clearly authorized to do so, which, according to Chairman Councilman, it was not.

The Board's finding that no other petitioner had standing to cause a hearing to be held 1

l assured that there would be no participation under 10 C.F.R. I 2.715(c). Although FRPB's l argument regarding Chairman Councilman'sletter is far from clear, FRPB concedes the letter's L

l accuracy. Given FRPB's concession regarding the accuracy of the letter, it is difficult to see how the Board's reliance on the letter could be error. .

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2. It was not error for the Licensing Board to reiect immuthnrind niandings.

l FRPB states that it was error for the Board not to consider the Conditional Motions that l

were filed or to have at least corddered the FBPB's pleading that confirmed its initial filings as to its role in properly representing the Franklin County region in this matter. Brief at 2.  !

Contrary to FRPB's argument, the Licensing Board had no obligation to consider the  !

barrage of unauthorized replies and motions filed in this proceeding. Petitioners were permitted l by the Board to file amended petitions to intervene, all of the petitioners having failed to conform to the clear directions in the Federal Register notice providing that "By February 27,1998 . . .

any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding, must file a written request for a hearing and a petition for leave to intervene." 63 Fed. Reg. 4308. (Emphasis added.)

L Thus, although the Licensing Board might well have denied petitioners' requests for a hearing for failure to file the petitions to intervene required by the Notice, the Licensing Board v

authorized the filing of amendments to the initial filings. Other than responses to those filings, L

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s' l ;. 7 all subsequent filings were without leave of the Board and were, as the Board noted in LBP-98-12, l not provided for in the Conunission's Rules of Practice. LBP 98-12 at 3 4. In light of the above, l the Board did not either abuse its discretion or commit an error of law by not considering  !

l l unauthorized filings.

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3. The Licensing Board did not err in characterizing FRPB's representations regarding its role.

FRPB complains that the Licensing Board improperly cites FRPB's role as only j

" promoting" public health, safety and welfare, but that its role includes " protecting" these values.

Brief at 3.

Contrary to FRPB's characterizationof the Board's treatment of its organizationalstanding  ;

i claims, the Board quotes from FRPB's amended petition regarding FRPB's role: that FRPB's l

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purpose and objective "shall be to promote and protect public health, safety and welfare. . ."

LBP-98-12 at 16. (Emphasis added.) The Board notes that FRPB represents that its purpose l

! mandates that it " protect" not only the people and property at the Yankee Rowe site, but also the l

peoples and property within the ten mile evacuation zone. Id. The Board further quotes from l

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l FRPB's amended petition as stating that FRPB'is mandated by law to promote economic development while " protecting" the country's natural and cultural resources. Id. The Board l l  !

concludes, however, that FRPB does not explain how its responsibilities are interests within the  ;

Atomic Energy Act or the National EnvironmentalPolicy Act and how its organizationalinteress l

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i (planning _for the district within its mandate to protect the public health and safety) would be adversely affected by the acceptance of the LTP. LBP-98-12 at 17. FRPB may not like the Licensing Board's Decision on Standing. However, as noted above,;the Board did not focus on

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FRPB's promotion role at the expense of ignoring FRPB's protection role. The Board's characterization of FRPB's role is consistent with FRPB's representations in its pleadings regarding its role. The Board did not commit error in its consideration of this matter.

4. FRPB may not apoeal the Board's denial of sinnding to NECNP and CAN.

FRPB argues that it was " shortchanged" in that in denying NECNP and CAN's standing the Board prevented FRPB's participationpursuam to 10 C.F.R. I 2.715(c). Brief at 4. FRPB J should not be heard to complain of alleged errors that have no direct effect on its interests.

5. It was not error for the Licensing Board to dismiss FRPB's complaints concerning iDadequacy of the public meeting notice. ,

FRPB states that the Licensing Board erred in not addressing the adequacy of the public meeting notices and the Licensee's failure to provide documentation for the Public Document Rooms in a timely manner. Brief at 4. The Licensing Board did address this matter. The Board correctly characterizes such concerns as outside the jurisdiction of the Board, citing Public Service Co. ofIndiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB 316, 3 NRC 167 (1976) for the propositionthat licensing boards are delegates of the Commission and exercise only those powers which the Commission has given them. LBP 98-12 at 3. The Board l further notes that any requests for redress should be addressed to the Commission. The Board's disposition of this matter is correct and consistent with NRC practice.

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ls 9 CONCLUSION For the reasons discussed, the Conunission should deny Franklin Regional Planning l Board's appeal and should affum the Licensing Board's decision in LBP 98-12.

1 Respectfully submitted, vta. YaA k.mu AnnP. Hodgdon Counsel for NRC Staff Dated at Rockville, Maryland this 14th day of July,1998 i

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' DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION .

W JUL 15 Pl2:13 BEFORE THE C01041SSION l OFFC cf Erm pc i In the Matter of ) [ h g: j yhF 4

) 1 YANKEE ATOMIC ELECTRIC COMPANY ) DocketNo. 50-029-LA l

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(Yankee Nuclear Power Plant) , )

CERTIFICATE OF SERVICE 4

I hereby certify that copies of "NRC STAFF'S RESPONSE TO FRANKLIN REGIONAL PLANNING BOARD'S APPEAL OF LBP-98-12" in the above captioned proceedinghave l been served on the following through deposit in the Nuclear Regulatory Commission's l internalmail system,or by deposit in the United States mail, first class, as indicated by an i asterisk this 14th day of July,1998:

James P. Gleason, Chairman Thomas D. Murphy l Administrative Judge Administrative Judge i 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 Comminion U.S. Nuclear Regulatory Commission !

Washington, DC 20555 Washington, DC 20555 )

i Adjudicatory File (2) .

Dr. Thomas S. Elleman*

Atomic Safety and Liceming Board Administrative Judge i Mail Stop T 3-F-23 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 704 Davidson Street Washington, DC 20555 Raleigh, NC 27609 l

Office of the Commission Appellate Office of the Secretary Adjudication ATTN: Rulemaking and Mail Stop: O 16-C-1 Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: O 16-C-1 Washington, DC 20555 U.S. NuclearRegulatoryCommissim Washington, DC 20555

l- i i* Atomic Safety and Licensing Board Adam Laipson, Chairman

• l Pr.nel 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.* l New England Coalition on Nuclear - R. K. Gad, III  !

Pollution, Inc. Counsel for Licensee j Main Street Ropes & Gray  ;

P.O. Box 566 One International Plaza l Putney, Vermont 05346-0566 Boston, MA 02110 Deborah B. Katz, President

• Diane Curran l Citizens Awareness Network,Inc. Harmon, Curran, Spielberg P.O. Box 3023 & Eisenberg, LLP Charlemont, MA 01339-3023 New England Coalition on Nuclear Pollution, Inc.

2001 "S" Street, NW, Suite 430 Washington, DC 20009 j, O I i aAL ,

On c;cmu Ann P. Hodgdon y Counsel for NRC Staff l

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