ML20247L542
| ML20247L542 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 09/11/1989 |
| From: | Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#389-9171 OLA-4, NUDOCS 8909250005 | |
| Download: ML20247L542 (8) | |
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UNITED STATES OF. AMERICA NUCLEAR REGULATORY COMMISSION
'89 SEP 14 All :13 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD cu _
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In the Matter of VERMONT YANKEE NUCLEAR Docket No'. 50-271-OLA '
POWER CORPORATION (Construction Permit (VermontYankeeNuclearPower Station)
NRC STAFF RESPONSE TO THE STATE OF VERMONT'S PETITION FOR LEAVE TO INTERVENE I.
INTRODUCTION On July 26, 1989, the NRC published in the Federal Register a notice of consideration of issuance of amendment to the Vermont Yankee operating license and proposed no significant hazards consideration determination and opportunity for hearing. 54 Fed. Reg. 31120. The proposed amendment would extend the expiration date of the Operating license from Decem-ber 11, 2007 to March 21, 2012. The notice offered persons whose interest might be affected by the proposed action and who wished to participate as parties in a hearing an opportunity to file written petitions for leave to intervene by August 25, 1989.
On August 22, 1989, the State of Vermont filed a petition for leave to intervene pursuant to the Federal Register notice and the Commission's regulation, in 10 CFR i 2.714.
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... II. Discussion A.
'The Standards for Intervention 1.
The " Interest" Requirements of 10 C.F.R. 5 2.714 Section 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C.52239(a),providesthat:
In any proceeding under [the] Act, for the granting, suspending, revoking, or amending of any license... the Commission shall grant a hearing upon the request of any
' person whose interest may be affected by the proceeding, ard shall admit any such person as a party to such proceeding.
Section 2.714(a)(2) of the Commission's Rules of Practice, 10 C.F.R. 52.714(a)(2), requires'thatapetitiontointerveneinaCommission proceeding set forth with particularity:
(1) the interest of the petitioner in the proceeding; (2) how that interest may be affected by the results of the proceeding; and (3) the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.
In order for intervention to be granted, the petition must be found to satisfy these standards.
10C.F.R.I2.714(d).
In determining whether the requisite interest prescribed by both Section 189a of the Atomic Energy Act and Section 2.714 of the Commission's Rules of Practice is present, the Commission has held that contemporaneous judicial concepts of standing are contro111 rig. Portland General Electric Co.
(Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (198-76). Thus, there must be a showing (1) that I
the action being challenged could cause " injury-in-fact" to the person
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. seeking to intervene 1/ and (2) that such injury is arguably within the
" zone of interests" protected by the Atomic Energy Act 2/ or the National Environmental Policy Act. 3,/ Id. See also, Warth v. Seldin, 422 U.S. 490 (1975); Sierra Club v. Morton, 405 U.S. 727 (1972); Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153 (1970).
2.
The " Aspect" Requirements of 10 C.F.R. I 2.714 In addition to demonstrating " interest," a petitioner must set forth "the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene." 10 C.F.R. 52.714(a)(2).4/ There is little guidance in NRC case law concerning the 1/
" Abstract concerns" or a " mere academic interest" in the matter which
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are not accompanied by some real imoact on a p(Ten Applications for etitioner will not confer standing. See, Exxon Nuclear Company Low-Enriched Uranium Exports to EURATOM Member Nations), CLI-77-24, 6 NRC 525, 531 (1977); Pebble Springs, (CLI-77-27, supra, 4 NRC at 613.
Rather, the asserted harm must have some particular effect on a petitioner, Ten Applications, CLI-77-24, su)ra, and a petitioner must have some direct statke in the outcome of tie proceeding. See, Allied-General Nuclear Services (Barnwell Fuel Receiving and'~5torage Station, ALAB-328, 3 NRC 420, 422 (1976).
2/
42 U.S.C. 6 2011 et seq.
1 3/
42 U.S.C. 5 4321 et seq.
4/
10 C.F.R. s 2.714 also requires the petitioner to file"... a supplement to this petition to intervene which must include a list of the contentions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity." This section further provides:
"A petitioner who fails to file such a supplement which satisfies the requirements of this paragraph with respect to at least one contention will not be permitted to participate as a party." The NRC staff will respond to the contentions set forth in the supplement after its receipt.
Accordingly, nothing said here by the Staff regarding the petition's
" aspects" is intended to apply in any way to satisfaction of the 10 C.F.R. 5 2.714 contention requirements.
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~ meaning of " aspect" as the term is used in 10 C.F.R. 5 2.714; however, a petitioner may satisfy this requirement by identifying general potential effects of the licensing action or areas of concern which are within the scopeofmattersthatmaybeconsideredintheproceeding.El See, Virginia Electric Power Co. (North Anna Power Station, Units 1 and 2),
ALAB-146, 6 AEC 631, 633 (1973).
B.
The State of Vermont's Petition 1.
Interest and In. fury Regarding its interest, the State represents that the proposed extension has a potentially significant effect on the environment of the State of Vermont and on the health, welfare and safety of its people.
Petition at 1-2.
Further, the State represents that because the plant is located in Vermont any order permitting the requested amendment would have both a direct and an indirect effect on Vermont and its citizenry.
Petition at 2.
The Staff believes that the State has adequately set forth its interest and has shown how its interest might be affected by the outcome of the proceeding. Accordingly, the State has made the showing necessary to a finding that it has standing to intervene.
2.
Specific Aspects of the Subject Matter of the Proceeding The State has identified a number of aspects on which it wishes to intervene, some of which are arguably within the scope of the notice S/
The subject matter of the proceeding for purposes of identification
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of " aspects" relates to the question of public health and safety of the proposed action (issuance of the amendment) and not the procedural determination made by the Commission staff concerning whether of not the proposed action involves a "significant hazards consideration." See, 5148 fed. Reg. 7747 (March 6, 1986).
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. and, thus, of any proceeding that might be conducted pursuant to that i
notice. For example, increased risk from aging of equipment is arguably within the scope of the notice. See Petition at 2.
Accordingly, in the Staff's view, the State has identified at least one aspect on which it l
l wishes to participate.
C.
No Significant Hazard Consideration Determination In its petition, the State addresses the Staff's proposed determination of no significant hazards consideration at some length.
Petition at 2-8.
The State's discussion of this proposed determination will be considered by the Staff in reaching its final determination regarding no significant hazards consideration. However, a no significant hazards consideration determination is a procedural determination stemming from the "Sholly" amendments to $189a of the Atomic Energy Act, 42 U.S.C.
5 2239(a). After the NRC staff or the Commission has made such a determination, it may make effective a proposed license amendment prior to any hearing on the request. The determination itself is not subject to challenge in a license amendment proceeding:
No petition or other request for review of or hearing on the staff's significant hazards consideration will be entertained by the Commission. The staff's determination is final, subject only to the Commission's discretion, on its own initiative, to review the determination.
10 C.F.R. f 50.58(b)(6).
The issue of whether the proposed amendment does or does not involve a significant hazards consideration is not litigable in any hearing that might be held on the proposed amendment because, as the l
l Commission has observed, the finding is a procedural device whose only purpose is to determine the timing of the hearing (before or after l
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. issuance of the amendment). Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-86-12, 24 NRC 1, 6 n.3 (1986),
reversed in part on other grounds, San Luis Obispo Mothers for Peace v.
U.S. Nuclear Regulatory Commission, 799 F.2d 1268 (9th Cir. 1986).
III. CONCLUSION For the reasons discussed above, the Licensing Board should find that the State of Vermont has established its standing to intervene and has identified at least one aspect of the proposed amendment request in which it is interested.
Respectfully submitted, u
Ann P. Hodgdon Counsel for NRC Staff Dated at Rockville, Maryland this lith day of September,1989 I
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mi. r UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
.gg gp g g g BEFORE-THE ATOMIC SAFETY AND LICENSING BOARD CFT v In the Matter of 00mg
,s n VERMONT YANKEE NUCLEAR Docket No. 50-271-OLA - Y
. POWER CORPORATION (Construction Permit
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Recapture)
(Vermont Yankee Nuclear Power
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Station)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter.
In : accordance with 10 C.F.R. 5 2.713(b), the following information is. provided:
' Na me:
Ann P. Hodgdon A ddress:
U.S. Nuclear Regulatory Commission -
Office of General Counsel Washington, D.C. ' 20555 Telephone:
(301) 492-1587 A dmissions:
D.C. Court of Appeals Name of Party:
N R C Staff U.S. Nuclear Regulatory Commission Washington, DC 20555 Respectfully submitted Ann P. Hodgdon Counsel for N R C Staff Dated at Rockville, Maryland this lith day of September,1989 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'89 SEP 14 All:14 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD p,g Docru u,-
3h In the Matter of PC l
VERMONT YANKEE NUCLEAR DocketNo.50-271-OLA^f POWER CORPORATION (Construction Permit (VermontYankeeNuclearPower Station)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC Staff Response to the State of Vermont's Petition for Leave to Intervene" and " Notice of Appearance" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Comission's internal mail system, this lith day of September, 1989:
Robert M. Lazo, Chairman
- Jerry Harbour
- Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Washington, D.C.
20555 Frederick J. Shon*
James Volz, Esq.
Atomic Safety and Licensing Board Vermont Department of Public U.S. Nuclear Regulatory Comission Service Washington, D.C.
20555 120 State Street Montpelier, VT 05602 Atomic Safety and Licensing Board R.K. Gad. III, Esq.
Panel (1)*
Ropes and Gray U.S. Nuclear Regulatory Comission One International Place Washington, D.C.
20555 Boston, MA 02110 Docketing and Service Section*
Adjudicatory File
- Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington,, D.C. 20555 Washington, D.C.
20555 Atomic Safety and Licensing Appeal j
Panel (5) l U.S. Nuclear Regulatory Comission Washington, D.C. 20555 6
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Ann P. Hodgdon Counsel for NRC Staff J
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