ML20195H394

NRC Staff Response Re Yaec Board Notification (Withdrawal of Application) & Motion to Terminate Proceeding & Dismiss Appeal.* Commission Should Hold Abeyance Any Action on Yaec Motion to Dismiss Appeal.With Certificate of Svc

ML20195H394
Person / Time
Site:	Yankee Rowe
Issue date:	06/15/1999
From:	Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#299-20535 LA, NUDOCS 9906170029
Download: ML20195H394 (7)

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ADJUD 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 RESPONSE CONCERNING YANKEE ATOMIC ELECTRIC COMPANY'S

" BOARD NOTIFICATION (WITHDRAWAL OF APPLICATION) AND i MOTION TO TERMINATE PROCEEDING AND DISMISS APPEAL" l INTRODUCTION i On May 26,1999, Yankee Atomic Electric Company (Yankee) filed with the Commission

" Board Notification (Withdrawal of Application) and Motion to Terminate Proceeding and Dismiss Appeal." In its filing, Yankee 1) notified the Board of Yankee's withdrawal of its application for l

l l an operating license amendment approving its License Termination Plan (LTP)~; 2) moved, pursuant to 10 C.F.R. f 2.107(a), for termination of the proceeding; and 3) suggested that the Commission should dismiss Yankee's pending appeal of LBP-99-14, the memorandum and order of March 17, i

1999,in which the Licensing Board admitted four contentions and admitted New England Coalition on Nuclear Pollution (NECNP) and Citizens Advisory Network (CAN) as consolidated intervenors.

' On June 5,1999, New England Coalition on Nuclear Pollution (NECNP) filed with the Commission " Motion in Support of Yankee Atomic Electric Company's Motion for Dismissal of 9906170029 990615 7 PDR ADOCK 05000029  ;

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Appeal," by which NECNP supported ' Yankee's motion to dismiss the appeal but asked'the Commission to' dismiss the appeal with prejudice.

On' June 7,1999, NECNP filed wkh the' Licensing Board on behalf of the consolidated intervenors an " Opposition to Yankee Atomic Electric Company's Motion to Terminate, and Proposed Form of Order for Expenses, Fees, and Responses to Discovery." 'Also on June 7,1999, Yankee filed with 'the Commission " Yankee's Response to Intervenors" Motion in Support of *

[ Yankee's] Motion for Dismissal of Appeal."'

On June 14,1999, the Atomic Safety and Licensing Board issued a " Memorandum and Order

' (Requesting Replies to NECNP Response to Termination Motion)." The NRC staff addresses these matters below.

BACKGROUND On October 23,1998, the Commission issued CLI-98-21, in which it reversed, in part, LBP-98-12 and determined, among other things, that NECNP and CAN had standing to intervene

'in a proceeding concerning the application of Yankee Atomic Electric Company (Yankee) for an amendment to its operating license approving its License Termination Plan (LTP), submitted by Yankee on May l'5,1997, and revised December 18,1997. On January 26-27,1999, a reconstituted Licensing Board conducted a prehearing conference to consider contentions filed by NECNP and CAN. On March 17,1999, the Licensing Board issued LBP-99-14, in which it admitted four contentions and admitted NECNP and CAN as consolidated intervenors.

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On March 29,1999, Yankee filed for reconsideration of the admission of one of the four contentions. NECNP and CAN filed separate responses opposing Yankee's reconsideration motion'

, and the NRC staff fileil a response supporting it.2 On April 22,1999, the Licensing Board issued a " Memorandum and Order Denying Motion for Reconsideration of Contention 4." I On April'1,1999, Yankee filed an appeal of LBP-99-14. NECNP and CAN opposed

. Yankee's appeal, while the Staff supported it.' -

On April 6,1999, the Licensing Board issued a Notice of Hearing.

On May 13,1999, Yankee notifie'dthe Board ofits determination to modify its LTP so as to employ "MARSSIM" (Multi Agency Radiation Survey and Site Investigation Manual,"

NUREG-1575) in lieu of the NUREG/CR-5849 methodology on which the LTP Yankee has now withdrawn is based. Subsequently, on May 26, 1999, Yankee filed its " Board Notification (Withdrawal of Application) and Motion to Terminate Proceeding and Dismiss Appeal."'

8 NECNP's Opposition to Yankee Atomic's Motion to Reconsideration [ sic] Part of

. Prehearing Conference Order, April 9,1999; Citizen's Awareness Network,Inc. Reply to Yankee Atomic Electric Co.'s Objection to and Motion for Reconsideration of Portion of Prehearing Conference Order, April 9,1999.

2 NRC Staff Response to Yankee Atomic's Objection to and Motion for Reconsideration of a Portion of Prehearing Conference Order, April 9,1999. .

3 NECNP's Reply to Yankee Atomic's Appeal of LBP-99-14, April 16,1999; Citizens Awareness Network,Inc. Reply to Yankee Atomic Electric Co.'s Appeal of Prehearing Conference Order. April 16,1999; NRC Staff Response in Support of Yankee Atomic Electric Co.'s Appeal of LBP-99-14, April 16,1999, d

On April 1,1999, the NRC staffissued its Environmental Assessment (EA) on Yankee's proposed License Termination Plan and on May 17,1999, NECNP submitted late-liled contentions

= based on the stcff's EA. No responses were filed to the late-filed contentions because of YJee's (continued...)

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DISCUSSION Although addressed to the Commission, it is unclear from which forum Yankee is seeking relief. On the one hand, it appears to seek relief from the Licensing Board, especially in Paragraph 2, where it addresses termination pursuant to 10 C.F.R. 9 2.107. On the other hand, however, in Paragraph 3, Yankee requests that the Commission dismiss the appeal, it having been mooted by the withdrawal of Yankee's application for approval ofits LTP.

Before the.NRC staff's response to Yankee's motion was due to be filed with the Commission, the Licensing Board issued a Memorandum and Order (Requesting Replies to NECNP Response to Termination Motion), in which the Licensing Board requested responses to the consolidated intervenors' Opposition to Yankee Atomic Electric Company's (YAEC's) Motion to Terminate," filed with the Licensing Board June 7,1999. I Although the Commission could on its own decide all matters pertaining to termination raised by the consolidated intervenors in their " Opposition," including the imposition of conditions, (see, e.g., Louisiana Energy Services, LP. (Claibome Enrichment Center), CLI-98-5,47 NRC 113

' (1998)), unless directed by the Commission to do otherwise, the Staff plans to file its response to the consolidated intervenors' " Opposition" with the Licensing Board according to the schedule the Board has established in its " Memorandum and Order." l l

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'(... continued) decision to withdraw the LTP and request the proceeding be terminated.

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f Also, the Commission could act on Yankee's request to the Commission to dismiss the 5

appeal (and vacate LBP-99-14, the unreviewed decision admitting contentions); see LES, supra.

' However, under the circumstances it would seem more appropriate for the Commission to hold Yankee's request to dismiss f he appeal in abeyance, pending Licensing Board action on the motion to terminate.

CONCLUSION For the reasons discussed above, the Commission should hold in abeyance any action on 3 I

Yankee's motion' to dismiss its appeal pending the Licensing Board's action on the motion to )

terminate.

Respectfully submitted,

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l Ann P. Hodgdon Counsel for NRC Staff Dated at Rockville, Maryland this 15th day of June 1999 l

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8 NECNP's filing of June 5,1999, urges the Commission to grant Yankee's motion to dismiss. the appeal of LBP-99-14 but to attach prejudice to the dismissal. Yankee's response of June 7,1999, opposes dismissal of the appeal with prejudice.

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DOCKETED UNITED STATES OF AMERICA USHRC NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION oft In the Matter of )

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dib jp YANKEE ATOMIC ELECTRIC COMPANY ) Docket No. 50-029-LA

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(Yankee Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies c'f "NRC STAFF RESPONSE CONCERNING YANKEE ATOMIC ELECTRIC COMPANY'S " BOARD NOTIFICATION (WITHDRAWAL OF  !

APPLICATION) AND MOTION TO TERMINATE PROCEEDING AND DISMISS APPEAL"" )

in the above-captioned proceeding have been served on the following through deposit in the l Nuclear Regulatory Commission's internal mail system or, as indicated by an asterisk, by first- '

class mail this 15th day of June,1999:

i Charles Bechhoefer, Chairman Dr. Thomas S. Elleman*

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T 3-F-23 704 Davidson Street l U.S. Nuclear Regulatory Commission Raleigh, NC 27609 '

Washington, DC 20555 Thomas D. Murphy Thomas G. Dignan, Jr.* I Administrative Judge R. K. Gad,III Atomic Safety and Licensing Board Counsel for Licensee l Mail Stop T 3-F-23 Ropes & Gray >

U.S. Nuclear Regulatory Commission One International Plaza Washington, DC 20555 Boston, MA 02110

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,g, Samuel H. Lovejoy* Jonathan M. Block, Esq.*

- Franklin Regional Council of Governments New England Coalition on Nuclear 425 Main Street - Pollution, Inc.

Greenfield, MA 01301 Main Street P.O. Box 566 Putney, Vermont 05346-0566 Atomic Safety and Licensing Board Deborah B. Katz, President * )

Panel - Citizens Awareness Network,Inc.

Mail Stop T 3-F-23 P.O. Box 3023 U.S. Nuclear Regulatory Commission Charlemont, MA 91339-3023

' Washington, DC 20555 l

' Adjudicatory File (2) Office of the Commission Appellate

' Atomic Safety and Licensing Board . Adjudication l Mail Stop T 3-F-23 Mail Stop 016-C-1

l. U.S. Nuclear Regulatory Commission . U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 l

, Office of the Secretary (16)

, _ ATTN: Rulemaking and l . Adjudications Staff Mail Stop 016-C-1 U.S. Nuclear Regulatory Commission Washington, DC 20555 i

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boe on Ann P. Hodgdon Counsel for NRC Staff '

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