ML20248M154

Memorandum & Order (Decision on Standing).* Denies Petitioners Request for NRC Approval of License Termination Plan Based on Board Review of Amended Petitions. W/Certificate of Svc.Served on 980612

ML20248M154
Person / Time
Site:	Yankee Rowe
Issue date:	06/12/1998
From:	Elleman T, Gleason J, Murphy T Atomic Safety and Licensing Board Panel
To:	AFFILIATION NOT ASSIGNED, CITIZENS AWARENESS NETWORK, NEW ENGLAND COALITION ON NUCLEAR POLLUTION
References
CON-#298-19197 98-736-01-LA, 98-736-1-LA, LA, LBP-98-12, NUDOCS 9806150092
Download: ML20248M154 (26)

Text

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~ ;q191 00CKETED USHRC LBP-98-12

% JUN 12 A10:58 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMQt,SplON , _ c-

' RUL u: ,'

ATOMIC SAFETY AND LICENSIN(8@OARD - ~ JF Before Administrative Judges:

James P. Gleason, Chairman Thomas D. Murphy Dr. Thomas S. Elleman SERVED DM 1219n in tr.o Matter of Docket No. 50-029-LA YANKEE ATOMIC ELECTRIC COMPANY ASLBP No. 98-736-01-LA (Yankee Nuclear Power Station) June 12,1998 MEMORANDUM AND ORDER (Decision on Standing)

The Board herein renders a decision on amended petitions for a hearing and intervention on Yankee Atomic Electric Company's (licensee) amendment application which requests Nuclear Regulatory Commission approval of its License Termination Plan (LTP).

Petitioners are the New England Coalition on Nuclear Pollution, Inc. (NECNP), the Citizens Awareness Network (CAN) and the Franklin Regional Planning Board (FRPB).' Based on the

'NECNP Amended Petition in Licensee Proceeding (April 6,1998); CAN Amended Petition to Intervene in Licensee Proceeding (April 6,1998); FRPB Amended Petition of Request for Hearing (April 6,1998). Another petitioner, the Nuclear Information and Resource Service, has withdrawn from the proceeding. Notification to AllParties Announcing Withdrawal (April 6,1998).

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Board's review of the amended petitions and opposing responses from the licensee and staff,2 we hold that none of the requestors meets the Agency's standards for admission and the l

l  ; petitions are consequently denied.

A termination plan from NRC's licensees is required to enable the Agency to make

' decisions onf (a) the adequacy of funds availab!a for final site release; (b) the radiation release criteria for license termination, and (c) the adequacy of the final survey to verify that the release criteria have been met. See 61 Fed. Reg. 39278,39288 (July 29,.1996). The LTP is required to be filed at least two years prior to terminating the license, it calls for the licenseo to produce:

(A) a site characterization; (B) identification of remaining dismantlement activities; (C) plans for

,. site remediation; (D) detailed plans for the final radiation survey; (E) a description of the end use of the site, if restricted; (F) an updated site-specific estimate of remaining decommissioning l- costs; and (G) a supplement to the environmental report describing any new information or significant environmental change associated with the proposed termination activities.10 C.F.R.

l 9 50.82(a)(9)(ii). Subsequent to the filing of the licensee's application, the Commission, pursuant to 10 C.F.R. 9 50.92, made a proposed determination that the amendment involves no significant hazards consideration This determination means that the proposed amendment  !

! would not (1) involve a significant increase in the probability or consequences of sn accident .

previously evaluated; (2) create the possibility of a new or different kind of accident from any l

. previously evaluated; or (3) involve a significant reduction in a margin of safety. )

l Inasmuch as there are similar allegations in the amended petitions of NECNP and CAN, j

' their submissions are' treated here together where appropriate. Both petitioners attempt to  ;

2 Licensee Response to Amendments of Petitions (April 13,1998); Staff Response to FRPB (April 14,1998); Staff Response to NECNP (April 17,1998); Staff Response to CAN (April 20,1998).

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A demonstrate their eligibility for standing througli representation and authorization of a member j j

of their organizations.8 These individuals claim injuries which are supported by the declaration of CAN's technical expert, David Lochbaum, a nuclear safety engineer with ine Unicn of

~ Concemed Scientists. Mr. Lochbaum states he has examined the LTP, the Final Safety Analysit Report (FSAR) for the facility and relevant NRC regulations, bulletins and information notices.d- In addition to the members' and the Lochbaum declarations conceming injuries, NECNP and CAfJ set forth numerous aspects of the proceeding on which petitioners seek to intervene. These are illuminated by descriptive allegations which appear to be similar in nature to contentions.-

NECNP and CAN register concems regarding several matters which, being outside the jurisdiction of the Board, cannot be considered here. Public Service Co. ofIndiana (Marble Hill

. Nuclear Generating Station, Units 1 & 2), ALAB-316,3 NRC 167 (1976). These involve the proposed NRC determination that the amendment request involves no significant hazards consideration and that allegedly, inadequate procedures were followed relating to a public l meeting required to be held to review the LTP. See CAN Amended Petition, pp. 2-6; NECNP )

l Amended Petition, pp. 3-7.' See also FRPB Amended Petition Request at 11-12. Redress for  !

i these matters, if requested, can only be obtained from the Commission.

In an Order of March 25,1998, the Board authorized amended petitions which were 4

submitted by each petitioner. Responses to those petitions were filed by the licensee and the staff. Subsequent to that date, a large number of unauthorized pleadings were filed in this 8NECNP Amended Petition, Ex. A: CAN Amended Petition, Ex. A.

'NECNP Amended Petition, Ex. B; CAN Amended Petition, Ex. B.

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proceeding without leave of the Board.5 These filings, which were not characterized as amendments to petitions, are not provided for in the Commission's rules of procedure. See 10 C.F.R. $ 2.714(a)(3). Not having been authorized by leave of the Board, such additional filings have not been considered in this decision. NRC adjudicative procedures do not permit an endless stream of pleadings to evolve. See /d.; see also 10 C.F.R. 2.730(c) (replies to petitions not permitted without leave of the presiding officer).

In view of lengthy submissions on " aspects" provided in both petitioners' submissions, we first set forth the Board's understanding of this procedural prerequisite of 10 C.F.R. 6 2.714 before addressing the Agency's standing requirements.

SCAN'S Reply to Staff's Answer to Amended Petition to Intervene; CAN'S Reply to YAEC's Answer to Amended Petition to Intervene (April 22,1998); Motion of YAEC to Strike Unauthorized FRPB Pleading & Conditional Motion for Leave to Reply Thereto (April 30,1998);

FRPB's Reply to YAEC & Staffs Answers to FRPB'S Amendment (April 28,1998); Reply of NECNP to YAEC & Staffs Answers to Amended Petitions (April 28,1998); Motion of YAEC to Strike Unauthorized NECNP Pleading & Conditional Motion for Leave to Reply Thereto (May 1, 1998); FRPB'S Conditional Motion for Leave to Reply & Motion to Strike YAEC's Unauthorized Motion to Strike (May 2,1998); CAN's Reply to Staffs Answer to Amended Petition to Intervene (May 4,1998); Motion of YAEC for Leave to Reply to New FRPB Evidence (May 5,1998);

Letter from Franklin Regional Council of Governments Support FRPB's Participation Before ASLB (May 7,1998); NECNP's Opposition to YAEC Motions to Strike & for Conditional Leave to Reply & a Proposed Order Relating to the Motions & Related issues Before ASLB (May 7, 1998); FRP3'S Conditional Reply & Support for NECNP's Opposition & Proposed Order &

Motion for Leave to Reply to YAEC's New Evidence Filing (May 11,1998); CAN's Support for NECNP's Opposition to YAEC's Motions to Strike & for Conditional Leave to Reply & a Proposed Order Relating to the Motions & Related issues Before ASLB (May 11,1998);

Answer of YAEC to NECNP and CAN Motions (May 12,1998); Staffs Response to YAEC Motions to Strike Unauthorized Pleadings (May 12,1998); Staffs Response to CAN'S Reply to Staffs Answer to Amended Petition to Intervene (May 19,1998); Staffs Notice That They Do Not Intend to File a Response to YAEC's Motion for Leave to Reply to FRPB's Evidence (May 20,1998); Staffs intention Not to File Responses to CAN's May 11 Support for NECNP's Opposition to YAEC's Motions to Strike & FRPB's May 11 Conditional Reply & Support for NECNP's Opposition and Proposed Order & Motion for Leave to Reply to YAEC's New Evidence Filing (May 21,1998).

Throughout NRC's history, and that of its predecessor agency, the Atomic Energy ,

Commission, adjudicative procedural rules have required requests for intervention to set forth l

l the specific aspect of the subject matter of the proceeding on which petitioners desired to - 1 intervene. Prior to 1978, such aspects were required to be supported by affidavits and include facts pertaining to the interests submitted and the basis for contentions connected to each ,

- aspect. A direct nexus existed then between aspects and contention. In 1978, changes in the i Agency's procedures opened the possibility of petitioners filing contentions with their bases 1

separately in a supplement filed prior to a first prehearing conference, and in 1989, changes inter alla required that petitions establish a foundation for each contention. The objective of this i requirement was to demonstrate that a material issue of law or fact existed between the applicant and intervenor. For some time then, there has been a separation between aspects and contentions leaving the aspect requirement only necessary to demonstrate that the areas l of the intervenor's interest are within the scope of the particular proceeding. It is not viewed as l a foundation for standing requirements. l To participate as a party in Commission proceedings, standing requirements based on

. judicial concepts call for a demonstration that the proposed action will cause an injury in fact to the petitioner's interests and that the injury is within the zone of interests protected by statute.

Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), CLI-85-2,21 NRC l 282,316 (1985). An organization may establish " organizational" or " representative" standing by demonstrating an injury to its organizational interests or injury to one of its members who has individual standing and has authorized the organization to represent his or her interest. See Geotpla Institute of Technology (Georgia Tech Research Reactor), CLI-95-12,42 NRC iii, l 115 (1995). An organization seeking to intervene in its own right must demonstrate a palpable E_=_______________ _____ _

injury-in-fact to its organizational interests that is within the scope of interests of the Atomic Energy Act or the National Environmental Policy Act. Florida Power and Light Co. (Turkey Point Nuclear generating Plant, Units 3 and 4), ALAB-952,33 NRC 521,528-530 (1991).e Where an organization seeks to establish its right to participate in the Agency's proceedings through a member who authorizes its representation, the injuries complained of must be particularized and capable of being redressed by a favorable decision. See Georgia Power Company (Vogtle Electric Generating Plant, Units 1 and 2), CLI-93-16, 38 NRC 25, 32 (1993).

Redressability is a required element in standing for it must be demonstrated that there is a likelihood of an injury being redressed if petitioner is to obtain the relief requested.

Westinghouse Electric Corporation (Nuclear Fuel Export License for Czech Republic-Temelin Nuclear Power Plants), CLl-94-7,39 NRC 322,331 (1994).

New Enaland Coalition on Nuclear Pollution. Inc. (NECNP)

The NECNP petition is supported by a declaration of an authorizing member, Jean-Claude Van Italie, who expresses a concern for his health and safety through "long term environmental effects of low-level radiation" and "the long term effects of an ineffectual cleanup

. . or an irradiated fuel accident" on his property value. Mr. Van Italie, who lives within six milm of the license 9's facility, also expresses a somewhat diffuse concem that the " final site condition projected under the LTP. . . satisfy the NRC's criteria for general release." See Declaration of Jean-Claude Van Italie at 1-3. The licensee and staff assert that the above

'The Franklin Regional Planning Board seeks intervention based on organizational standing even though it admits that it is a governmental entity. We disregard the implications of its governmental identity for the purposes of our analysis of its organizational standing.

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concems are not relevant to the LTP and, not being redressable by the proceeding, are outside l 1

its scope. We agree.

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- The Van Italie declaration raises several matters related to fuel management and issues connected to it which are activities previously licensed and considered in the licensee's decommissioning plan and approved therein. See Declaration of Jean-Claude Van Italie at 3-4. I L As the Commission noted in adopting the Agency's final rule on decommissioning, "[t]he existing rule, as well as the proposed rule, consider the storage and maintenance of spent fuel  :

as an operational consideration and provide separate part 50 requirements for this purpose."

61 Fed. Reg. 39278,39292 (July 29,1996). Infra at 11-12. The same is true for the claimed concem that the final site conditions " satisfy. . .NRC's criteria for general release" of the

. property. The licensee's LTP advises that the site release criteria comply with NRC's Site Decommissioning Management Action Plan of April 16,1992 (57 Fed. Reg.13389) and with i

-10 C.F.R. 9 20.1401(b). See LTP, Revision 1, A-7 (December 1997). Accordingly, there is -

nothing that can be redressed here on the petitioner's concem.

The NECNP petition alleges that Mr. Van Italie would suffer adverse consequences from

. the release of radiation due te the kinds of accidents described by its consultant expert, David

' A tochbaum. Our review of the Lochbaum declaration reaches a similar conclusion as the

- u, .1 ion expressed above conceming spent fuel matters. His declaration is concerned

exclusively with spent fuel management matters which, as indicated, is a subject beyond the  ;

scope of a proceeding considering a license termination plan. Accordingly, reliance on this  ;

. declaration provides no relief for petitioners on standing requirements.

1 We provide here some discursive comments on the lengthy outline and descriptive

" aspects" included in NECNP's petition. As indicated, supra, aspects are not evaluated in the  ;

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I consideration of alleged injuries to substantiate standing rights. However, in the absence of l case authority and in light of some possible confusion that may exist related to the procedural l changes over the years and their impact on the aspects requirement, we measure here whether l

NECNP's petition in this regard receives any substance on standing from the assertions in the  ;

i aspects. In doing so, we again reach a judgmer,t that the aspect allegations provide no l

l substantiation to verify claims that the LTP threatens injury to petitioner's interests. l l

In the outline aspects of a possible hearing on the LTP, both petitioners, NECNP and l CAN, submit a number of nonconclusory generalized statements on the validity or adequacy of the elements of the LTP which are not particularized to any claimed injury.7 Accordingly, they  ;

contribute nothing to substantiate the petitioner's claim for standing and need not be addressed further. However, the descriptive aspects submitted by petitioner, NECNP, provide allegations l regarding deficiencies in the LTP and have been judged by the Board as follow:

1. General deficiencies -There is no claim for injury founded here on broad statements that the LTP contains " vague and conditional language" and is " impervious to technical or practical assessment." See NECNP Amended Petition at 23.

2. Inadequacies in dealina with Hiah-Level Waste -Management of spent fuel is outside the domain of the LTP. See NECNP Amended Petition at 23-26.

3. jpadeauncies in dealina with environmental issues -There is no requirement in the i regulations for the LTP to comply with NEPA and since licensee notes in the LTP a compliance on environmental issues with its decommissioning plan, no injury can be supported by matters outside the scope of the proceeding. See NECNP Amended Petition at 26-28.

7NECNP Amended Petition at 18-23 (April 6,1998); CAN Amended Petition at 17-21 (April 6,1998)

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4. Licensee's trustworthiness to conduct accurate analvsis -Allegations of prior mistakes in conducting analytical surveys to reveal levels of contamination cannot be considered within the scope of the present proceeding or as a foundation for injury. See

' NECNP. Amended Petition at 28-31.

5. H=ards unanalyzed in the LTP -This aspect again treats of spent fuel pool management which is outsioe the scope of the proceeding. See NECNP Amended Petition at

32. -

6. !nadeaunte evaluation of likelv accidents -Same conclusion as above. See NECNP

, Amended Petition at 32-33.

17. No comoliance with ALARA cone'mina residual radiation -The premise of assertions Thers is that instead of the LTP's site release criterion of 15 mrem /yr for the Total Effective Dose

' Equivalent (TEDE) that might be received by the average member of the critical population group of persons exposed to residual contamination at the site, ALARA requires a worst case scenario in determining residual radioactivity which results in " doses many orders of magnitude above background." NRC's regulations do not require a worst case scenario and the licensee's response to CAN's Petition makes clear that they will be in compliance. See NECNP Amended Petition at 34; see also Licensee Response to Amendments to Petitions to intervene, pp. 25-29.

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8. LTP does not adequately define crucial terms -The regulatory requirement for the

.' . LTP is found in 10 C.F.R. 6 50.82 ard does not include a definition of license tennination. The -

l- 2 petitioner does not state how ti e lack of such a definition injures its interests. See NECNP Amended Petition at 35.

g. LTP lacks adeouate fundina assurance -This assertion lacks particularity and alleges no injury to'NECNP. See NECNP Amended Petition at 35.

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10. LTP's site characterization and final survey olan are inadeauate -There is no

. requirement for the LTP to investigate offsite landfills and accordingly, this concem is outside the scope of the proceeding. See NECNP Amended Petition at 35-36.

11. LTP's oronosed contamination samolina is inadanuate -This assertion also lacks particularity and provides no demonstration of harm to the petitioner. See NECNP Amended Petition at 36.

12. LTP has questionable ba=as for determining backaround radiation -The NRC's regulations provide that background radiation includes nuclear weapons-testing fallout and consequently no criticism can be levied-and no injury assumed-for its measurement by the licensee. See NECNP Amended Petition at 36; see also 10 C.F.R. $ 20.1003.

13. LTP inadequately addresses nossibie continuina contamination -The assertions -

concoming soil near the spent fuel (waste)' pit building and designation of non-impacted areas in the final survey plan allege no injury to the petitioner. See NECNP Amended Petition at 36-37.

Citizens Awareness Network (CAN)

. . CAN's member, Deborah B. Katz, has authorized CAN to represent her in this proceeding CAN Amended Petition at 8,9; Katz Declaration at 1.

Ms. Katz lives within six miles of YNPS and claims concems about the long-term

" environmental effects of low-level radiation; that the final site condition projected under the LTP g will satisfy the NRC's criteria for general release; that the LTP appears to permit release of the site for public use at levels much higher than the Commonwealth of Massachusetts standard of

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10 millirem' per year above background radiation levels; and that the LTP is vague about cleaning up the spent fuel pool and ion exchange pits. CAN is concemed about the migration of radioactive tritium into Sherman pond. See Katz Declaration at 2-5. CAN argues the threat .

to Ms. Katz is not speculative but is supported by Mr. Lochbaum's declaration. CAN Amended

. Petition at 12.

In the licensee and staff responses to NAECP and CAN's amended allegations, both

. parties argue that the petitioner's reliance on fuel management issues does not present a claim of a cognizable injury that will be adversely affected by the outcome of this proceeding.' The i

licensee claims it already has a license for the spent fuel pool under Part 50 and is not seeking an ISFSl under Part 72. it further contends that CAN's concern about not meeting the

-Commonwealth of Massachusetts' standards is misplaced and that the Board must observe the standards promulgated in 10 C.F.R. 9 20.1402. The licensee aI'so argues that the language used to describe tritium contamination in Sherman Pond neither claims injury in fact nor is adequate to demonstrate injury in fact. See Licensee Response at 18-24 and n.32.

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' The staff avers that although Ms. Katz's interests fall within the zone of interests i protected by the AEA and NEPA, those interests could not be affected by the outcome of this proceeding and thus do not constitute injury in fact. It confirms that the licensee is given a generallicense to store fuel under 10 C.F.R. 9 72.210 and expresses an uncertainty over what CAN means by being troubled by the notion that the final [ radiological) condition of the site will 8 Throughout this Memorandum and Order we use the units of radiation dose as used by the parties. To convert to SI units one millirem equals 0.01 milliSievert; one pR is assumed to equal : 0.01 pSv.

' Response of Yankee Atomic Electric Company to Amendments to Petitions to Intervene (April 13,1998); NRC Staffs Response to Citizens Awareness Network's Amended Petition to Intervene (April 20,1998).

meet the NRC criteria. The staff meets this challenge by saying that if she means that the licensee's performance in meeting the criteria or if she means that the criteria itself is inadequate, neither will be affected by the outcome of this proceeding. In the staff's opinion, similar to the licensee's, Ms. Katz has failed to establish an injury in fact. Staff Response at 3-6.

Ms. Katz also appears to base her injury-in-fact argument primarily on the notion that she will be harmed by the storage of spent fuel on the site or the threat of a potential irradiated spent fuel accident, the analysis of which has not been presented in the LTP. Ms. Katz's claim that spent fuel management is to be considered as part of the LTP submission does not agree with our understanding of the regulations.10 C. F. R. g 72.210 clearly provides for a general license for the storage of spent fuel in an independent spent fuel storage installation at power reactor sites authorized to possess or operate nuclear power reactors under Part 50. The Board finds nothing in 10 C. F. R. @ 50.82(a)(9)(ii) that requires a submission of information concerning spent fuel management in the LTP and no evidence that the management of spent fuelis a subject of this proceeding. Mr. Lochbaum's declaration provides expert opinion concerning spent fuel handling, storage and spent fuel related accidents. Since any injury claimed by CAN, like NECNP, originating with an accident from or activities with spent fuel can not be remedied by the denial of the license amendment sought in this proceeding, we can not l

. grant standing on the basis of any consequences from spent fuel management. We find that CAN's primary basis for standing does not meet the accepted test described above to demonstrate injury in fact.

In addition, CAN does not convince us that Ms. Katz will be affected, much less harmed  !

by long term residual contamination from the site. She offers no expert opinion in this area. j l

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i CAN provides no basis to convince us that Massachusetts law, providing for more stringent site release criteria than the NRC's, should prevail in this case. Nor does CAN's argument that the

_ projected radioactive contamination levels calculated by CAN to result in doses to the public of 43 or 87 millirem per year persuade us that CAN has demonstrated an injury in fact. CAN claims that licensee's site release criteria of 15 millirem per year (see LTP at 1-1,4-1, and A-7)

.will be exceeded by the radiation exposure rates also allowed by the site release criteria (LTP at A-7) of 5-10 pR per hour. Licensee's criteria state that the Total Effective Dose Equivalent -

(TEDE) is applied to the average member of the critical group. ' Our review of the Commission's

. Radiological Criteria for License Termination (62 Fed. Reg. 39058) confirms the licensee's and

- staff's view that it is not necessary to calculate the doses from the residual levels of radioactivity 4

i l in a site using worst case assumptions. CAN does not demonstrate that this should not be so i.

. nor provide us with a credible argument that the licensee will not meet the 15 millirem per year criteria regardless of the proposed average hourly or maximum dose rate limits of 5 and 10 pF.

i CAN's argument that licensee's site release may not be ALARA because ofinadequate soil I remediation and monitoring does not explain how the requirements in the LTP for soil and groundwater monitoring fail to meet standards or will harm Ms. Katz. LTP at A-30. We note

-that the criteria for site release in the LTP are well within the 10 C. F. R. 9 20.1402 NRC '

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regulatory standard of 25 ' millirem per year. 62 Fed. Reg. at 39088. As discussed above, NRC

decommissioning regulations do not require worst case assumptions in calculating release  !

l-L levels. CAN's purported injury from the site residual radioactivity appears hypothetical and

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, speculative relative to Ms. Katz.' CAN has not demonstrated that its postulated injury from the site release criteria is distinct and palpable, particular and concrete.

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b The 'descriptive aspects submitted by CAN, like those of NECNP, are also evaluated for any substantive support for petitioner's standing arguments. Although some of the specific '

aspects CAN proposes to litigate may be germane to the subject matter of this proceeding, we o

found none that rise to the level to justify injury in fact:

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1. Failure to maintain ALARA standards -CAN claims release criteria are not ALARA since the calculated doses could be between 43 and 87 millirem per year by assuming a family farmer would inhabit the area 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day,365 days per year. Although not stated, CAN appears to arrive at these values by using the LTP's additiona! site release criteria of 5 to 10 pR per hour. The standards for site release are 25,15 or 10 millirem / year (NRC, EPA or MA).

CAN Amended Petition at'22,23. We agree with the licensee and the staff that CAN has not i made a case that it is necessary to postulate an incredible worst case scenario in order to s

demonstrate that the licensee will not meet its required release limits of 15 millirem per year. It is also well established NRC law that a state does not have the power to set radiological standards for NRC nuclear power plant licensees, Long Island Lighting Co. (Shoreham Nuclear '.

Power Station, Unit 1), ALAB-818, 22 NRC 651, 662-664 (1985) [ federal govemment has i

exclusive jurisdiction with regard to radiological health and safety matters), citing Pacific Gas -]

and Electric Co. v. State Energy Resources Conservation & Development Comm'n, 461 U.S.

190,207-212 (1983). To the extent that this aspect challenges the release criteria, it is not germane to this proceeding. See CAN Amended Petition at 22-23. i

. 2. Soil remediation fioures are faultv and may not meet ALARA considerations -The staff points out that NRC regulations in 10 C. F. R. 9 20.1402 and 6 20.1003 only require

analysis of the critical group and it is not necessary to include all half million visitors a year to

- the Deerfield River Valley in the control group. C ' AN has not convinced us that a worst case m__m_E_____[___._-__._EE_... ___ _ _ . - . _ . _ _

analysis is required for determining if an activity is ALARA. This aspect is not germane. Nor

~ has CAN demonstrated that the prospective monitoring as outlined in the LTP (see LTP at A-29 to A-32) is inadequate. . See CAN Amended Petition at 23-25.

3. The site release olan does not adeauntelv describe olanned decommissioning ativities in violation of 10 C.F.R. 6 50.82 (bl The NRC should have created a EIS and reouired an ISFSI under oart 72. The staff is violatina NEPA and claims that the removal of the i scent fuel oool is cart of the decommissioning activities. CAN is also concemed that Greater i Than Class "C" waste will be stored on site as well as fuel. Again, the Board agrees with the

' licensee and staff that decommissioning activities and spent fuel storage activities are beyond the scope of what is required by 10 C. F. R. 9 50.82 (a) (9) to be submitted in a LTP. This f

aspect is not germane. See CAN Amended Petition at 25-26.

4. The LTP does not detail how the licensee olans to orotect the oublic from access to the ISFSI As discussed above, spent fuel management activities are not a germane aspect of this proceeding. See CAN Amended Petition at 27-28.

5. No cost comoarison is orovided between establishing an ISFSI and leavina the fuel in a fuel pool Same conclusion as above. See CAN Amended Petition at 28.

i 6,7 and 8. The staff violated NEPA by not writina an EIS for the cleanuo of the site and -

- to investigate documented and undocumented around water contamination: there has been

- illeaal movina and dumoina of radioactive fill on the site of a soill that took olace in the 1960's

- and an investigation needs to be oerformed about the disoersal of tritium and the extent of a j olume'of radioactive contamination under the site: claims that H-3 has not been studied in sediments Each of the petitioners aspects raise issues that can not be remedied by the LTP i

and are accordingly outside the scope of this proceeding. See CAN Amended Petition at 28-32.

T Franklin Reaional Plannira Board (FRPB)

The FRPB seeks standing on three bases: (1) organizational or representational; e (2) as an interested govemmental agency; and (3) discretionary. FRPB identifies itself as a

" broad based coalition." It states that it is one of three bodies that comprise the Franklin

- Regional Council of Governments, with the Executive Committee and the Council (the representative body) being the other two. According to the FRPB, "[a]Il three bodies shall jointly i have and may exercise any and all authority for regionalplanning as may be authorized by current and future federal and state laws." FRPB Amended Petition at 2. [ Emphasis supplied).

FRPB states, without citation, that its purpose and objective "shall be to promote and protect public health, safety and welfare and the natural and cultural resources of the Regional Planning' district." /d. According to FRPB, this "' purpose" mar, dates that the Board protect not -

only the people and property at the Yankee Rowe site, but also the people and property within the ten mile evacuation zone, the Deerfield River Basin, and the entire downwind population which could be affected by activity at the site. Id. at 3. FRPB also states that it is " mandated by i

law to promote economic development while protecting the county's natural and cultural resources."" /d. at 6. "Not only does the Board do long range economic planning but also -

- resource conservation, preservation and development as well." Id. at 7.

The Franklin Regional Planning Board's primary purpose appears to be solely related to regional planning. Without more, its " mandate" to " promote" the public health, safety and

. welfare and the natural and cultural resources appears to reflect a mandate to plan for the "The staff argues that as a general matter, broad economic interests with respect to economic injury to the general community are insufficient to establi h standing, citing Babcock and Wilcox (Apollo, Pennsylvania Fuel Fabrication Facility), LBP-93-4,37 NRC 72,78 n.6,94 n.64 (1993). We believe the staff's analysis is applicable here.

region's future with those objectives to guide its planning efforts. As the staff and the licensee point out, FRPB does not explain how its respon.ibilities are interests that are within the zones of interests protected by either the Atomic Energy Act or the National Environmental Policy Act.

Staff Response at 7; Licensee Response at 7. Moreover, there is no Lttempt to explain hos it meets the injury requirement for standing. FRPB has not established how its purported organizational interests (planning for the district within its mondate to protect the public health and safety) would be adversely affected by the acceptance of the LTP. Nor does it bilege that it would be inhibited from carrying out its planning activities. The FRPB's amended petition alleges that "if the site of the Yankee Nuclear Power Station is not decommissioned in a complete and proper fashion, the citizens of Franklin county can be impac+ed by radioactivity and radionuclides present in the air and water proximate to and in the area of the plant's operation." FRPB Amended Petition at 5. It also claims potential harm from the proximity of a nuclear site on its tourist : dad economic base. Id. at 6-7. But these allegations are far frem particularized and appear to be offsite concems which are tied to the plant's past operation and current demmmitsioning, both activities which are already licensed and are not within the scope of this proceeding. The staff and the licensee agree with this assessment. Staff R(sponse at 7; Licensee Response at 7-8 and n.8. It is the Board's judgement that FRPB has failed to establish standing based on injury to iis organizational interests.

An organization may also invoke representational standing by (1) identifying at least one of its mambers by name and address; (2) demonstrating how that member may be affected by the licensing action; aM (3) showing (preferably by aMidavit) that the organization is authorized I

to request a hearing on behalf of tiiat member. See Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-90-1,43 NRC 1,6 (1996). An organization must provide a

1 L.

description of the nature of the injury to the oerson. and demonstrate that the person to be represented has in fact authorized such representation. Houston Power and Light Co., ALAB-535,9 NRC at 390-396.

In this regard, FRPB submitted the affidavit of Daniel B. Hammock attached to its l amended' petition. The Affidavit states (1) that Mr. Hammock lives in Franklin County; (2) that i he has been involved in Franklin enunty govemment for eight years; (3) that he currently serves l as one of five members of the Executive Committee; and (4) that he declares that the FRPB is

' representing the interests of Franklin County on the " issues pertinent to the above-entitled

' matter" ano not Hammock's own interest. However, to establish standing, an organization seeking to intervene on behalf of the member must show that the individual member can fulfill all the standing elements. Yankee Atomic Electric Co., CLl 96-1,43 NRC at 6. Mr. Hammock must demonstrate that (1) he has suffered or will suffer a distinct and palpable injury that constitutes injury :n fact within the zone of interests arguably protected by the AEA or NEPA: (2) that the injury is' fairly traceable to the staff's action of accepting the LTP; and (3) that the injury is likely to be redressed by a favorable decision. None of which has been done.

Nor is Mr. Hammock automatically entitled to a presumption of standing based on his living in proxim.ity to the plant. Even if he lived and worked and had property interests within a 50 mile radius of the power plant, there is no presumption of standing because this amendment proceeding does not involve an obvious potential for offsite consequences. Florida Power and O Light Co. (St.- Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325,329-330

- (1989). Here, FRPB has failed to show the requisite elements to establish standing based on representationalinterests.

i

.. i t

L l In its Amended Petition, FRPB also alleges it has standing under 10 C.F.R. $ 2.715(c) because it is 'an interested County (body)." The cited provision of the Commission's regulations reads in pertinent part:

The presiding officer will afford representatives of an interested State, county,

- municipality, and/or agencies thereof, a reasonable opportunity to participate and to introduce evidence, interrogate witnesses, and advise the Commission without

. requiring the representative to take a position with respect to the issue.

As originally worded,10 C.F.R. $ 2.715(c)'only allowed participation by the representative of a state, but the provision has been amended to include counties and  !

l municipalities and " agencies thereof." 43 Fed. Reg. 17,798,17,800 (1978). While states, counties and municipalities are commonly recognized forms of representative govemment, the _.

. l' Commission, when it added the wording " agencies thereof," did not expound on their limitations.

However, it would be unprecedented to suggest that any and all governmental or quasi-govemmental entities could invoke the provision for participation in a proceeding. This Licensing Board is confident, even without such guidance, that the Commission did not intend 1

to allow participation by agencier that neither had standing on their own nor had legal ~1

- authorization from a recognized govemment with a sufficient interest in the proceeding.

The ability to participate in an NRC proceeding is offered only to " units of the govemment which . . . have an interest in the licensing proceeding." 43 Fed. Reg.17,798,

-17,800 (1978). The words " interest" and " interested" as they are used in 10 C.F.R. $ 2.714 and 10 C.F.R. $ 2.715 appear to be synonymous with the term " standing." See Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-7,25 NRC 116,118

('l987). Given jurisprudential standing requirements, it is appropriate to require a

[

representational govemment, or an agency thereof, to have a foundational element of directly representing the citizens of the area affected. Such representation is not validated by p 1 j

l

delegation to an advisory body, like the FRPB. To find otherwise would be to dismiss the

" interest" requirement out of 10 C.F.R. S 2.715.

Even assuming the FRCG could be considered a section 2.715(c) govemmental entity, we do not find the affidavit attached to the FRPB Amended 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 Govemments, which informed the Board that the FRPB is an advisory board and is net acting on behalf of the Council of Governments. Such a delegation of authority would require a clear and convincing showing that the delegation was legal and within the power of the delegating authority to delegate. No such showing has been made here and accordingly the Board denies standing under this provision of the regulations.

Finally, it is important to understand that this provision does not entif.le an interested government agency to standing or the right to convene a hearing. The provision is captioned

" Participation by a person not a party." The mere filing by an interested govemment agency to participate in an amandment application process is not cause for ordering a hearing. Northem States Power Co. (Tyrone Energy Park, Unit 1), CLl-80-36,12 NRC 523,527 (1980). The provision only allotvs oarticioation in a convened proceeding. This means that interested govemmental bodies can only participate where proceedings have already been authorized. In this instance, given the Board's findings that NECNP and CAN lack stanoing, no proceeding has been authorized.

The FRPB also seeks intervention in this proceeding based on " discretionary standing."

Although a petitioner may lack standing to intervena as a matter of right underjudicial standing concepts, he may be a+nitted to the proceeding in the Licerising Board's discretion. In

determining whether discretior,ary intervention should be permitted, the Commission has stated that the Licensing Board should be guided by the factors enunciated in Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLl-76-27,4 NRC 610,616 (1976).

Those factors include:

(a) Weighing in favor of allowing intervention (1) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.

(2) The nature and extent of the petitioner's property, financial, or other interest in the proceeding.

(3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest.

(b) Weighing against allowing intervention (4) The availability of other means whereby petitioner's intrest will be protected.

(5) The extent to which the petitioner's interest will be represented by existing parties.

(6) The extent to which petitioner's participation will inappropriately broaden or delay the proceeding.

The primary factor to be consida. 3d is the significance of the contribution that a pecaoner might make. Id. at 614-617. The need for a strong demonstration that the petitioner can make a valuable contribution to the decision making process is especially pressing where no petitioners have established standing as of right [as the situation exists here] and where, absent such a showing, no hearing would be held. See Tennessee Valley Authonty (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413,5 NRC 1418 (1977).

The burden of convincing the Licensing Board that a petitioner could make a valuable contribution lies with the petitioner. Nuclear Engineering Co., Inc. (Sheffield, Ill. Low-Level Radioactive Waste Disposal Site), ALAB-473,7 NRC 737,745 (1978). Considerations in determining the petitioner's ability to contribute to development of a sound record include:

(1) A peutioner's showing of significant ability to contribute on substantial issues of law or fact which will not be otherwise properly raised or presented; (2) The specificity of such ability to contribute to those issues; -

h (3) Justification of time spent on considering the issues; (4) The provision of additional testimony, particular expertise, or expert assistance; (5) Specialized education or pertinent experience.

Duke Power Co. (Catawba Nuclear station, Units 1 and 2), LBP-61-1,13 NRC 27, 33 (1981).

FRPB's petition is devoid of the necessary showing that it wou!d aid in the development of a sound record. It states that it has the " intent" to develop a strong record and that it is well versed in the " matters at stake" (FRPB Amended Petition at 4) bul FRPB fails to demonstrate its prowess to &velop meaningful issues. Instead, FRPB has requested the NRC to provide it with $100,000 for it to be able to intervene in this proceeding and further admits that it does not have the sbility to make a substantial contribution at the present time. /d. at 10. NRC does not possess authority to provide FRPB with these requested funds. FRPB also confuses the implications of the grant of discretionary intervention when it states that it is "not required by C.F.R. 9 2.715(c) 'to take a position with respect to the issue'", "and in this section of this filing, has no interest in taking any position" and furthermore, "wants and requested a full, fair and coen proceeding and not an adversarial one." /d.

As to the second and third factors to be considered [the nature and extent of property, financial or other interests in the proceeding and the possible effect any order might have on the petitioner's interest), the Commission has held that interests which do not establish a right to intervention because they are not within the " zone of interests" to be protected by the Commission should not be considered as positive factors for the purposes of granting discretionary intervention. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11,7 NRC 381,388, af/'d, ALAB-470,7 NRC 473 (1978). As stated before, FRPB claims that its purpose is planning for the protection of the health and welfare of the citizens of the

J .,

region and the conservation of its cultural and natural resources. FRPB Amended Petition at 4.

FRPB nas not provided, besides this broad and unspecific information, any argument or

'i nformation upon which a finding can be made that its interests are within the zone of interests protec*ed by the AEA or NEPA. We do not find that FRPB has sufficiently defined its interests to weigh the second or the third factors of the Commission's test for discretionary intervention in

~.its favor. Pursuant to the above, the Board finds that the Franklin Regional Planning Board has failed to demonstrate that it can or has a significant ability to contribute to the development of a

. strong record or that it has particular expertise or experience to comment on the License Termination Plan which is the focus of this proceeding. .Without this demonstration, discretionary intervention must be and is denied.

As a final comment the Board desires to emphasize that determinations of standing, adyerse to petitioners as is the esse here, should 'not be considered as reflecting unfavorably on any organization _ seeking participation in NRC adjudications. Standing requirements are siinply essential for the sole purpose of determining whether there is a legitimate role for adjudication in dealing with a particular grievance."

In accordance with the provisions of 10 C.F.R. f 2.714a this decision may be appealed to the Commission within 10 (ten) days after service of the Order.

L

" Westinghouse Electric Corporation, (Nuclear Export License for Czech Republic- l Temrfa Nuclear Power Piants), CLI-94-7,39 NRC 322,331 (1994).

i c______________ _ _ = _ .

e .

t THE ATOMIC SAFETY AND LICENSING BOARD

~- / , s =-=a s es P. Gleason (

DMINIST. IVE JUDGE

/

Thomas D. Murphy 23/~s/ (

~

T ADMINISTRATIVE JUDGE

/ ) l L k id.4H4dA ' /  ![C4vta e, '~

Thomas S. Elleman ADMINISTRATIVE JUDGE Rockville, Maryland June 12, 1998 s

~

i UNITED STATES OF AMERICA NUCLEAR REGULATORY f.0MMISSION

\

In the Matter of YANKEE ATOMIC ELECTRIC COMPANY Docket No.(s) 50-029-LA (Yankee Nuclear Power Station)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB M:.0 (LBP-98-12) DECISION...

have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requir:ments of 10 CFR Sec. 2.712.

Administrative Judge Office of Commission Appellate James P. Gleason, Chairman Adjudication- Atomic Safety and Licensing Board Panel ,

U.S. Nuclear Regulatory Comission Mail Stop - T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Administrative Judge Thomas D. Murphy Administrative Judge Atouic Safety and Licensing Board Panel Thomas S. E11eman Mail Stop - T-3 F23 704 Davidson Street U.S. Nuclear Regulatory Comission Raleigh, NC 27609 Washington, DC 20555 Ann P. Hodgdon, Esq.

Marian L. Zobler, Esq. Thomas Dignan, Esq.

Office of the General Counsel Ropes and Gray Mail Stop 15 818 One Internatior.a1 Place U.S. Nuclear Regulatory Commission Boston, MA 02110 Washington, DC 20555 l

Jonathan M. Block, Esq. James L. Perkins, President l Main Street New England Coalition on l P.O. Box 566 Nuclear Pollution l Putney, VT 05346 P.O. Box 545 i Brattleboro, VT 05302 I i

. _ _ _ . _-___________________________.______--_a

Docket No.(s)50-029-LA LB M&O (LBP-98-12) DECISION...

Adam Laipson Deborah B. Katz, President Franklin Regional Council Citizens Awareness Network, Inc.

of Governments P.O. Box 3023 425 Main St. Charlemont, MA 01339 Greenfield, MA 01301 Dated at Rockville, Md. this  :

12 day of June 1998 .

/'

Office /of the Secretary of the Commission I

. I