ML20010H635

Advises That Nuclear Fuel Svcs,Inc Will Oppose NRC Issuance of Proposed Amend to License CSF-1.Amend Would Be Detrimental to Legal & Economic Interests

ML20010H635
Person / Time
Site:	West Valley Demonstration Project
Issue date:	09/11/1981
From:	Deuster R NUCLEAR FUEL SERVICES, INC.
To:	Cunningham R NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS)
References
19638, NUDOCS 8109280698
Download: ML20010H635 (4)

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Dear Mr. Cunningham:

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In response to your letter of August 26, 1981, I g/ou that Nuclear 4 s Fuel Services, Inc. (NFS) will oppose, in accordance with 10 CFR Section 2.204, the issuance by NRC of the proposed amendment to Provisional Operating License No.

CSF-1, submitted by the New York State Energy Research and Development Authority (ERDA) and joined by the United States Department of Energy (DOE).

NFS, as the NRC licensed operator of the Western New York Nuclear Services Center, believes that NRC appreval of the proposed amendment, requiring temporary suspension of NFS' license, would be detrimental to its legal and economic interests. Furthermore, it is questionable whether the proposed amendment would allt w NRC properly to insure public health and safety during the West Valley Demonstration Project (Project) and af ter Project completion.

The propowd arr.endment leaves NFS subject to unknown and unspecified obligations undeb the terms of its license. NFS, as the licensed operator, is responsible for Msuring that NRC regulations protecting health and safety are observed. While the amendment would tura over exclusive pcssession of the facility and premises to DOE, it would not relieve NFS of its health and safety respon.sibilities under NRC regulations. Since the amendment would only temporarily suspend rather than terminate its license, NFS would continue to have an undefined responsibility under the license for health and safety at the center, both during and subsequent to the Project.

Furthermore, the proposed amendment provides no protection to NFS for the consequences of DOE's Project activities. The amendment would expose NFS to unknown lept responsibilities and obligations if DOE modifies the facilities, if it 8109280698 8i0911 ' ,( r.L pn- y PDR ADOCK 05000201 P PDR l g ,1, (;$

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.a, L causes damage. or' destruction for which NFS may be responsible to ERDA or third '

. , parties, or if:lt creates' a different nuclear waste problem for which NFS may be

'made responsible to eliminate after DOE departs.

The relationship between bOE and NFS, which wou1d exist under the proposed 7 : amendment, is also unclear. DOE has no responsibility to NFS. NFS would have no right. to be consulted and'no' authority to object to any DOE actions affecting

~ health and safety or altering potential NFS obligations, either during the Project or

~ af ter Project completion. :The proposed amendment, paragraphs 7.B(1)a and 7.C, suggests potential interest or responsibility 'of NFS under the license, but permits a no action to fulfill those responsib'lities unless DOE approves. This leaves NFS in Oc . the unacceptable position of having continuing responsioility under the NRC license hjg , ,

without any authority to carry out.that responsibility. - '

51RDA)oparently desires NFS to, surrender possession of the West Valley

' site III to' DOE in order to implement the Project. However, if NFS did transfer its Linterests to DOE, NFS not only.would be unable to fulfill its resnonsibilities under

. .the license but also would breach the terms of its agreements Xth ERDA.

, Under the terms of the i. ease and Waste Storage Agreement between NFS and fV ERDA, NFS is' obligated to surrender possession of the West Valley site only to

'ERDA. If NFS were to surrender the site to DOE without prior acceptance by 4

ERDAi NFS would violate the terms of the agreement and materially arc adversely

- affect its contractual rights, which are the subject of lawsuitt initiated by NFS and

' ERD A. ; Consequently,' NFS has advised NDA that NFS will not consent to DOE k ,

possessionLand control of the site unie s and until ERDA has executed the proper I Lwritten cacceptance of the site or the question has been resolved in legal  !

proceedings. . .

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(1)/The' term'" site" as used in this lette; includes the premises, facilities and

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Richard E. Ciar.ingham; f Septernberbl,1981; i Page Three a.

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The complete' termin.ttion of NFS' NRC license would have no effect on EP.DA's contractual rights. b fact, NFS has informed ERDA that, if desired, NFS is prepared to stipulate that the omplete termination of NFS' license would not prejudice or constitute a waiver of ai;y claim'agair:st NFS for failure to comply 4

with the terms of the i.eue and Waste Storage Agreement.

ERDA is refusing to accept site turnover from NFS or to agree to the

>- termint. tion of NFS' license. Regardles , of the dubious propriety of ERDA's

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position, it hardly justifies the unprecodented temporary suspension of NFS' operating license. : By granting such a suspension, NRC would be supporting ERDA's f intransigence and create a confusing situation involving unspecified and divided responsib!!!ty._.

Such divided responsibility for the facility, including the responsibility for public health and safety, would exist throughout the Project's lifetime. Upon completion of the ' Project, the ability to insure public health and safety would become even more acute. The proposed amendment, paragraph 7.D, would require that NFS and ERDA reassume their respective interests under the license upon surrender of the site by DOE. NFS, howeve:, will be technically unable to do so, even assuming that it now has any residual Interest.

The DOE contractor, selected to conduct the Project, intends to hire all of the 'on-site -NFS personnel _ When this takes place, NFS will lose its technical capability to comply with NRC regulations or orders regarding health and safety.

In addition, NFS will have no capability to reacquire operational control of the site on completion or termination of the Project. 'It will be financially and logistically infeasible for. NES. to attempt to maintain the necessary technical capabilities during the indefinite duration of the Project or to restructure such a capability at an indefinite future time to satisfy an indefinite future requirement.

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Richard E. Cunningham September 11,1981 Page Four-For these reasons, NFS cannot provide the NRC with any representation that it can or will be able to carry out any future licensee responsibilities at the site.

ERDA is seeking the transfer and it should be ERDA that provides appropriate representations and assurances to NRC that the transfer of possession to DOE is proper and that ERDA is prepared to carry out any actions required by NRC. Since ERDA has already made similar representations to DOE concerning assumption of site responsibility upon Project completion, it would be doing no more than reiterating that commitment to another Federal agency.

The logical method for initiating the Project would be for NRC to approve NFS' transfer ' of its site interests to ERDA, as called for in the ERDA/NFS agreements, and to terminate NFS' license. The NRC approval could be contingent upon ERDA immediately transferring all of its interests to DOC for the duration of the Project. There may be other methods of transfer, which the parties may wish

- to consider, but whatever method is chosen, NFS must insist that its NRC license be terminated before exclusive possession and control of the West Valley site can be assumed by DOE.

Sincerely,

{ bO. W Ralph W. Deuster President RWD:jnw

_cc: ~ James L. Larocca, Chairman New York State ERDA Warren E. Bergholz, Jr., Esquire Office of the General Counsel, DOE Orris S 'iiestand, Esquire

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