ML20031E082

Forwards Request for Hearing & Motion for Stay of Effectiveness of 810930 Amend.Commission Must Act Quickly to Assure Licensee Opportunity for Hearing Before Amend Becomes Effective on 811015

ML20031E082
Person / Time
Site:	West Valley Demonstration Project
Issue date:	10/13/1981
From:	Hiestand O MORGAN, LEWIS & BOCKIUS, NUCLEAR FUEL SERVICES, INC.
To:	Bradford P, Gilinsky V, Palladino N NRC COMMISSION (OCM)
Shared Package
ML20031E083	List: ML20031E082 ML20031E085
References
NUDOCS 8110150074
Download: ML20031E082 (3)

Text

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%7 October 13, 1981 The Honora

'ppnp Palladino The Honorable John F. Ahearne Chairman Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.

20555 Washington, D.C.

20555 The Honorable Peter Bradford Tre Honorable Thomas M. Roberts Commissioner Cotmnis sioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.

20555 Washington, D.C.

20555 The Honorable Victor Gilinsky Commissiener U.S. Nuclear Regulatory Commission Washington, D.C.

20555

Dear Commissioners:

Nuclear Fuel Services, Inc. (NFS), co-holder of Operating License CSF-1, this date has filed with the Nuclear Regulatory Commission the attached Request for Hearing and a Motion for an Order Postponing the Effectiveness of Amendment (Change 31) to License CSF-1 until NSF has had the opportunity for a hearing on the matter as required by 10 C.F.R. 5 2.204.

The Amendment in question purportedly implements the West Valley Demonstration Project Act.

Under the existing license the New York State Atomic and Space Development Authority and its successor in interest, the New York State Energy Research and Development Authority (NYERDA), were licensed as owner and lessor of the facility, while NFS was licensed as the operator.

The Demonstration Act contemplates that NYERDA will make the facility available to the Department of Energy (DOE) to carry out a high-level liquid waste management demonstration project.

The amend-ment in question would allow NFS and NYERDA to transfer the facility to DOE, but it would also merely suspend certain NFS rights and responsibilities under the license and require NFS to retain an ill-defined set of residual responsibilities, h

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MORGAN, Lewis 3. Bocnius Commissioners October 13, 1981 Page Two The amendment in question was issued by the NRC Staff on September 30, 1981, and made immediately effective by the NRC Staff on the basis of a "no significant hazards" finding.

10 C.F.R. S 2.204 imposes a mandatory, non-discretionary duty upon the Commission to grant the oppor-tu;;ity for hearing to a licensee on any amendment which modifies its license, and to postpone the effectiveness of any such amendment pending completion of any such hcarings as the licensee may request.

NFS understands that DOE will be in a position to accept transfer of the facility by October 15, 1981.

In ongoing litigation in the United States District Court for the Western District of New York between NYERDA and NFS concerning their respective rights and responsibilities under the West Valley Lease and Waste Storage Agreement, NYERDA has sought an order based on its contracts with NFS to compel NFS to transfer the facility to DOE.

The court is expected to act on or before October 15, 1981, a

and if it should grant an order which effectuates the transfer to DOE, then the subject NRC license amendment will be final and immediate in its effect upon NFS.

In that event, NFS will face an impossible dilemma, and an irretreivable loss of its absolute right to a hearing before the amendment is effective.

NFS' request for hearing contends that the amendment is illegal in numerous respects, and that NFS may not relinquish its rights and responsibilities as licensee without incurring a substantial risk of violating its existing license, the Atomic Energy Act, the Energy Reorganization Act, and the Demonstration Project Act.

However, if the District Court orders NFS to effectuate the transfer to DOE, NFS would be placed in the position of being forced to carry out actions which may later be determined to be illegal, and as to which NFS has already expressed its view that such actions would i

be illegal.

Moreover, NFS must confront this dilemma with-out having the prior hearing on the license amendment which is guaranteed by 10 C.F.R. 5 2.204.

Once the transfer is effectuated, the atundment has an immediate effect, and NFS will have forever lost its right to a prior hearing.

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MORGAN, Lewis 3. BoCKlUS Commissioners October 13, 1981 Page Three There is only one set t" circumstances in which NFS would not be forced to insist upon its right to a prior hearing.

On October 6, 1981, NFS submitted a proposed amendment to Operating License CSF-1 (copy attached), which would remove the legal questions raised by the subject amendment, Change No. 31, by automatically terminating NFS' rights and responsibilities under the license in the event of a DOE takeover of the l'acility.

If the Commission were to issue that amendment, NFS could withdraw both its Motion for Postponement of Effectiveness and its Request for Hearing.

Because of the immediacy of its dilemma, NFS must taquest that the Commission:

(1) act on its motion for an order postponing the effectiveness of the amendment; or (2) in the alternative, issue the license amendment requested by NFS on October 6, 1981, on or before close-of-business, Wednesday, October 14, 1981.

If the Commission fails to act by that time, the transfer will be effectuated and the Commission will have irretreivabl; denied NFS its right

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to prior hearing.

If the Commission requires more time, NFS would not object to a temporary suspension of the effective-ness of the Amendment (Change No. 31) by the Commission until the Commission has had the opportunity to consider this request.

Accordingly, NFS respectfully requests that the Commission act on the enclosed Request and Motion, or pro-posed Amendment by no later than the close of business on Wednesday, October 14, 1981.

Respectfully submitted, 5

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Atto*rney for Nuclear Fuel Services, Inc.

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