ML18192C159

May 2, 2018 Letter from NYSERDA Regarding Conforming CSF-1 to Current Site Conditions

ML18192C159
Person / Time
Site:	West Valley Demonstration Project
Issue date:	05/02/2018
From:	Jeremy Dean State of NY, Energy Research & Development Authority
To:	John Tappert Division of Decommissioning, Uranium Recovery and Waste Programs
AMSnyder NMSS/DUWP/MDB 415.6822 T5D48
Shared Package
ML18192C158	List: ML18192C159 ML18192C160
References
Download: ML18192C159 (3)

Text

May 2, 2018 John Tappert Director, Division of Decommissioning, Uranium Recovery, and Waste Programs United States Nuclear Regulatory Commission Mail Stop T-8F05 Washington, DC 20555-0001 Via hard copy and electronic mail Re: West Valley, License CSF-1

Dear John:

On behalf of the New York State Energy Research and Development Authority (NYSERDA), I would like to request a pre-amendment meeting to discuss a few items related to the operating license in effect at the West Valley Nuclear Service Center, License CSF-1. In a conversation on March 21, I raised the possibility of updating the NYSERDAs West Valley operating license to bring it out of timely renewal and to better align it with current conditions on the site, ensuring that West Valley staff may perform basic site maintenance activities, like brush clearing, when needed. We understand that either a commitment to preparing, or the preparation of, a Part 20-compliant Radiation Protection Program will be needed. However, Amendments 31 and 32 to CSF-1 failed to explicitly transmit health and safety authority to NYSERDA such that NYSERDA has clear licensing authority to promulgate such a Program - it is NYSERDAs understanding that without an amendment transferring such authority, no actions subject to that authority may be taken. Recognizing that such an obligation would generally carry to any existing license holder, and that as such this may not be an orphaned responsibility after all, I wish to confirm whether the NRC believes NYSERDA to be responsible for health and safety obligations at the site, and to further discuss license amendments that may be needed to conform the licensing basis to current site conditions.

At this meeting, I would like to discuss the above-referenced question, as well as to outline two identified amendment pathways that we, along with our team of subject matter experts, have identified. There appear to be two options for updating/modifying license CSF-1 to reflect current and future conditions: (1) the existing Part 50 license could be retained and converted to a possession-only license (POL), with Parts 30 (byproduct material), 40 (source material) and 70 (special nuclear material) authorizations included as needed to reflect current conditions at the site, or (2) the existing Part 50 license could be converted to a strictly materials license (no Part 50 elements such as technical specifications) to cover byproduct material (Part 30), source material (Part 40) and special nuclear material (Part 70) as it may exist on the site.

On the health and safety question, a short summary of West Valleys licensing history as pertinent to these questions may aid in your review:

As you know, Nuclear Fuel Services, Inc. (NFS), a private enterprise, entered into a license with NYSERDAs predecessor, the Atomic Safety and Development Authority (ASDA) in 1966.

Paragraph 4.A of CSF-1, as approved, places health and safety obligations squarely with Nuclear Fuel Services, even through any contractual changes between ASDA and NSF: Notwithstanding any expiration, modification, cancellation or termination of the contractual arrangement between NFS and ASDA, NFS shall, so long as this license shall be in force with respect to NFS, be responsible for assuring that the provisions of this license and Commission regulations for protection of health and safety from radiation hazards are observed with respect to the facility and materials covered by the license.

Subsequent to passage of the West Valley Demonstration Act in 1980, two subsequent license amendments were granted, neither of which addressed Paragraph 4.A. On August 19, 1981, License Amendment 31 proposed new License Condition 7, whereby the United States Department of Energy (DOE) would assume exclusive possession of the facility and continue in possession until the licensees reacquire the facility. The NRC granted License Amendment 31 on September 30, 1981. On February 1, 1982, License Amendment 32 proposed that NSF and NYSERDA surrender the facility to DOE; the NRC granted this amendment on February 16, 1982 as amended slightly by NYSERDA, whereby NFSs responsibility under the license terminated, and all references in paragraph 7 to licensee now referred solely to NYSERDA.

Paragraph 4.A was untouched by this amendment as well, and no further amendments to License CSF-1 have been proposed since Amendment 32.

As such, it has been NYSERDAs view that Paragraph 4 A of the license was indeed orphaned with respect to the obligations of the licensees: insofar as it relates to a former licensee, and insofar as care was given in Amendments 31 and 32 to carefully specify which license obligations were to be turned over to NYSERDA, this plain reading of the license history would support the idea that no licensee (DOE is not a licensee here) currently holds health and safety authority at West Valley. However, an alternate reading, one whereby NYSERDA maintains health and safety authority because it is the only current licensee, also clearly needs to be considered and addressed, as any license holder is obligated to protect health and safety under 10 C.F.R. Part 50 generally.1 Put another way, can a licensee in the circumstances of this case (DOE implementing the WVDP Act) promulgate and ultimately implement a Radiation Protection Program that complies with Part 20 if it does not have health and safety authority explicitly written into its Part 50 operating license? The answer to this question may assist in determining the most expeditious path to a license reflecting current site conditions and needs.

1 It is important, however, not to overlook the DOE role under the WVDP Act and the current amended license.

Because of DOEs role and authority under the WVDP Act, as reflected in the amended license, and DOEs inherent health and safety authority under the Energy Reorganization Act, health and safety responsibility is not orphaned on the WVDP portion of the site as long as DOE is onsite implementing the WVDP Act directives.

We would look forward to a meeting as early as late May at the NRC if your schedule(s) would permit. We look forward to discussing the right next steps for NYSERDA to take in conforming its license to current conditions.

Thank you very much, Janice A. Dean Deputy Counsel CC via electronic mail:

Stephen Koenick (USNRC), Stephen.Koenick@nrc.gov Ray Powell (USNRC Region 1), Raymond.Powell@nrc.gov Amy Snyder (USNRC), Amy.Snyder@nrc.gov Mark Roberts (USNRC Region 1), Mark.Roberts@nrc.gov Tim Rice (NYSDEC), timothy.rice@dec.ny.gov Stephen Gavitt (NYSDOH), stephen.gavitt@health.ny.gov Bryan Bower (DOE-WV), bryan.bower@emcbc.doe.gov