ML040760958

Response of Nancy Burton to the 2/13/2004 Letter of David Lewis That Advised the Secretary That the Burton Petition to Intervene Was Premature

ML040760958
Person / Time
Site:	Millstone
Issue date:	03/01/2004
From:	Burton N Connecticut Coalition Against Millstone
To:	Annette Vietti-Cook NRC/SECY
Julian E
References
50-336, 50-423
Download: ML040760958 (3)

Text

NANCY B URTON ATTORNEY A T LAW 147 CROSS HIGHWAY REDDING RIDGE, CONNECTICUT 06876 TELEPHONE (203) 938-3952 RECEIVED FAX (203) 838-3168 USNRC EMAIL: nancyburtonssq@aol.com March 1, 2004 (10:30AM)

OFFICE OF SECRETARY March 1, 2004 RULEMAKINGS AND ADJUDICATIONS STAFF Office of the Secretary U.S. Nuclear Regulatory Commission Washington DC 20555-0001 Attention: Rulemakings and Adjudications Staff Re: Millstone Nuclear Power Station, Units 2 and 3 License Renewal Application Dominion Nuclear Connecticut, Inc.

Docket Nos. 50-336 and 50-423

Dear Sirs:

I respond to the letter of Attorney David R. Lewis of February 13, 2004 concerning the Connecticut Coalition Against Millstone Petition to Intervene and Request for Hearing (Petition) with regard to the application of Dominion Nuclear Connecticut, Inc. (Dominion) to obtain renewal of the operating licenses for Millstone Units 2 and 3.

On behalf of Dominion, Mr. Lewis asserts that the Coalitions Petition was filed prematurely in advance of a Federal Register notice and that the Coalition should not be permitted to participate in proceedings concerning the Millstone relicensing application except pursuant to the new 10 CFR Part 2 rules.

We disagree.

3y way of factual background, Dominion formally submitted its application to the U.S. Nuclear Regulatory Commission (NRC) on January 22, 2004. By letters dated February 5, 2004, the NRC notified the Waterford (CT) Public Library and the Three Rivers Community College in Norwich (CT) that it was thereupon submitting to each respective facility a copy of the application as it had been filed with the NRC in Docket Nos. 50-336 and 50-423.

On February 6, 2004, the NRC posted on its official website a notice that the NRC would hold a public meeting in Waterford on February 17, 2004 regarding the license renewal application.

On February 8, 2004 or earlier, the NRC posted notice on its official website of the pendency of the Millstone license renewal application.

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On February 12, 2004, the Coalition submitted its Petition to Intervene and Request for Hearing to the NRCs Office of the Secretary with a copy to the licensee. The Office of the Secretary emailed notice of its acknowledgment of the filing on February 12, 2004.

On February 17, 2004, representatives of the NRC, including two representatives from the Office of the General Counsel, conducted a public meeting regarding the Millstone license renewal application in Waterford, as scheduled. During such meeting, NRC representatives stated that the NRC was not legally required to conduct a hearing on the application in the absence of a formal request for a hearing.

It is clear from an examination of the old and hew rules, and a review of pertinent materials made available by the NRC on its website and in the Federal Register, that the Petition must be docketed and considered by the NRC under the old rules.

The NRCs website postings provide pertinent guidance. On or before February 16, 2004, the NRC posted on its official website a chart entitled Applicability of Old and New 10 CFR Part 2 to NRC Proceedings. Such chart posits various scenarios of potential events occurring with regard to license applications and interventions and it assigns applicability of old versus new rules. The ninth scenario is particularly apt. It posits the following potential events:

Application submitted and docketed by NRC before February 13, 2004; notice of docketing and opportunity for hearing published on NRC web site before February 13, 2004, but not in Federal Register; hearing requesthntervention petition received after February 13, 2004. [Emphasis added.]

Pursuant to these parameters, it is clear from NRCs own interpretation of the rules that the Coalitions Petition proceedings must be condilcted pursuant to the old 10 CFR Part 2 rules.

There is no question but that the application was submitted on January 22, 2004, well before February 13, 2004. The NRC received the application for Dockets 50-336 and 50-423 and on February 5, 2004 it officially forwarded copies to the Waterford Public Library and Three Rivers Community College. The NRC publicly announced receipt of the application at least as early as February 6, 2004. Within six days of its receipt of actual notice of the pendency of the application, on February 12, 2004, the Coalition filed its Petition to Intervene and Request for Hearing. The Coalition filed its petition prior to the rule change.

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Under the NRCs own guidance, notice of opportunity for hearing as posted on the NRC website or in the Federal Register provides a triggering event which may be a factor in determining the applicability of the old versus the new rule.

Yet, it is noteworthy that the new rule, 10 CFR §2.309(b)(4)(ii), provides that a petition to intervene and request for hearing are timely filed if filed within ([Slixty (60) days after the requestor [Petitioner] receives actual notice of a pending application . . . regardless of whether or not a notice appears on the NRC website or in the Federal Register.

The key parameters here are (a) the date of Dominions application (January 22, 2004) and (b) the date of the Coalitions intervention (February 12, 2004).

Both critical events occurred prior to the effective date of the new rule, February 13, 2004. Since no hearing is required, and thus no notice of hearing is required, and the intervention was filed within 60 days of the Coalitions actual notice of the pendency of the application, the Coalitions petition must be processed under the old rule.

I thank you for your assistance.

Very truly yours, cc: David R. Lewis, Esq.

Lillian Cuoco, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel 3