ML20031E126
| ML20031E126 | |
| Person / Time | |
|---|---|
| Site: | West Valley Demonstration Project |
| Issue date: | 10/13/1981 |
| From: | Heistand O, Hiestand O MORGAN, LEWIS & BOCKIUS, NUCLEAR FUEL SERVICES, INC. |
| To: | NRC COMMISSION (OCM) |
| References | |
| 19787, NUDOCS 8110150117 | |
| Download: ML20031E126 (14) | |
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UNITED STATES OF AMERICA g
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BEFORE THE COMMISSIONERS u..
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I In the Matter of
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NUCLEAR FUEL SERVICES, INC.
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Docket No. 50-201
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Provisional Operating NEW YORK STATE ENERGY RESEARCH )
License No. CSF-1
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AND DEVELOPMENT AUTHORITY
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LICENSEE'S REQUEST FOR HEARING 4"b -
v Pursuant to Section 189(a) of the Atomic Energy Act of 1954 (AEA), 42 U.S.C.
f2239, as amended, Nuclear Fuel Services, Inc.
(NFS), co-holder with the New York State Energy Research and Devel-opment Authority (NYERDA) of License No. CSF-1, hereby requests a hearing in connection with the amendment (Change No. 31) to that license issued by the Nuclear Regulatory Commission on September 30, 1981.
A.
BACKGROUND 1.
Nuclear Fuel Services is co-holder with NYERDA of Provisional Operating License Nc. CSF-1, issued by the Atomic Energy Commission to NFS and the New York State Atomic and 6o9 9
8110150117 811013 68 i PDR ADOCK 0500C201 i
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t Space Development Authority (the predecessor in interest of NYERDA) on April 19, 19o6.
The license authorizes operation of a spent nuclear fuel reprocessing and radio-active waste disposal facility at West Valley, New York.
NFS was licensed to operate the facility and possess radio-active materials and waste.
The New York State Atomic and Space Development Authority (ASDA) was licensed as owner and lessor of the facility.
NYERDA has assum.d all rights and responsibilities of ASDA under the license.
2.
On October 1, 1980, the West Valley Demonstration Project Act, Pub. L.96-368 ("Act") was enacted.
The purpose of the Act was to authorize DOE to carry out a high-level liquid nuclear waste management demonstration project at the West Valley facility.
The Act, Section 2(b)(4)(A), provides that "(t)he State (of New York) will make available to the Secretary (of DOE) the facilities of the Center and the high level radioactive waste at the Center, which are necessary for completion of the project."
On October 1, 1980, NYERDA and DOE entered into a Cooperative Agreement to implement the demonstration project.
NFS was not a party to that Agreement.
3.
On August 14, 1981, NYERDA, joined by DOE, submitted for an application to the Nuclear Regulatory Commission (NRC) an amendment to License No. CSF-1 to authorize temporary transfer of the facility to DOE in order to conduct the demrnstration project.
NRC advised NFS of the proposed amend-
ment by letter en August 26, 1981 and requested NFS' position.
NFS responded by letter on September 11, 1981 opposing the issuance of the amendment as proposed by NYERDA.
4.
The NRC staff issued the amendment (Change No. 31) to License No. CSF-1 on September 30, 1981.
The amendment adds a seventh paragraph to the license, which authorizes the licensees to transfer temporarily the premises and facilities to DOE pursuanc to a number of conditions, including the requirement that the licensees, as their respective interests under the license appear, shall reacquire and possess the facility upon completion of the West Valley Demonstration Project.
B.
IFTEREST OF THE LICENSEE 5.
Pursuant to Section 189(a) of the Atomic Energy Act of 1954, 42 U.S.C. 52239, as amended, NFS requests a hearing be held on that amendment.
Section 189(a) of the AEA provides that "in any proceeding under this Act, for the granting, suspending, revoking or amending of any license...the Commission shall grant a hearing upon ree;cet of any person whose interest may be af-fected by the proceeding, and shall admit any such person as a party to such proceeding."
(Emphasis added.)
6.
"It is settled that the Commission will apply judicial concepts of standing to determine hearing and intervention
9 rights under Section 189(a) of the Atomic Energy Act."
Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438, 439 (1980).
The two-pronged test for standing requires that a person must allege an intercsr " arguably within the zone of interest" protected by the statute and that some injury affecting that person has occurred or probably will result from the action
- involved, i.e.,
an " injury in fact."
Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2) CLI-76-27, 4 NRC 610, 613 (1976).
7.
The " zone of interest" protected by the Act obviously includes licensees and license applicants.
It is beyond serious argument that those directly regulated under the Act are within the zone of interest protected by the Act.
By definition, a licensee under the Act has an interest in a license issued to it pursuant to the Act.
It has definable rights and responsi-bilities under the license and the Act which are obviously affected by any action of the agency which modifies those rights and responsibilities.
8.
The NRC's regulations explicitly recognize the special interest of a licensee under the Act.
NRC regulation 10 C.F.R.
5 2.204 gives the Commission authority to modify a license by issuing an amendment only after prior notice and opportunity for a hearing before the amendment becomes effective.
There is but one exception to this rule.
If Commission finds that the
public health, safety, or interest are affected, it may require that the amendment be made effective immediately.
This exception only obtains in circumstances which are in the nature of an emergency and which compel exercise of NRC's summary authority to protect the public's health, safety, or interest.
In this case, the NRC staff made no such finding before the issuance of the amendment.
Indeed, tre NRC staff made a finding of no significant hazards considerations, which is the polar opposite of emergency findings.
9.
NFS also meets the " injury in fact" requirement for standing.
The amendment clearly fixes new rights and responsibilities upon NFS in a manner which,as stated more fully in Paragraphs 11-15 below, will adversely affect its interests.
It is no answer that the amendment is permissive in nature.
Injury to NFS will inevitably result from the Hobson's choice which the amendment would impose upon NFS.
The NRC Staff maintains that it has authority to issue such an amendment. NFS contends that NRC does not have the necessary authority, and that the amendment is in violation of the Act.
In the ongoing litigation between NFS and NYERDA, NYERDA has sought emergency relief from a federal District Court to compel the transfer of the facility from NFS to DOE.
If NFS should transfer its license rights to the Department of Energy, it cannot rely upon the amendment without considerable risk.
If the Commission is
later proven to be without the necessary authority to issue such an amendm(nt or that the amendment violates the Act, NFS would then be placed in the awkward position of violating the Act, while being held to its own position that its transfer was unlawful.
At the same time, it would have relinouished its rights to correct past problems, or to guard against future ones.
It must be emphasized that the determination of NFS' rights and responsibilities under the license and NRC's authority to issue the amendment effectuating the transfer is properly NRC's duty.
Absent this determination, NFS faces an impossible dilemma.
l 10.
This dilemma has in similar cases led the Supreme l
Court and the NRC to recognize the need for declaratory relief to resolve the dilemma.
See, Abbott Laboratories v. Gardner, 387 U.S. 136-155 (1967) and Kansas Gas and Electric Company (Wolf Creek Nuclear Generating Station, Unit No. 1), CLI-77-1, 5 NRC 1, 4-5 (1977).
There is a need to clear the air concerning the proposed amendment.
The inevitable prospect of adverse con-sequences to NFS establishes an ample basis for declaratory relief at the earliest possible time.
In short, NFS will incur injury in fact and it is entitled to a declara-tion of its rights and responsibilities under the license.
C.
ISSUES FOR llEARING NFS alleges the following matters of fact and law and requests the opportunity for hearing to contest each of these matters:
11.
The transfer violates NRC regulations with respect to DOE's exempt status.
10 C.F.R.
5 50.11(b)(2) provides that an NRC license will not be required for the " construction or operation of a production or utilization facility for the Department (of Energy) at a United States government-owned or controlled site... [p]rovided that such activities are conducted by a prime contractor of the Department under a prime contract with the Department."
It is contemplated that this exemption will be in effect at the West Valley site, on the premise that DOE will control the site and have exclusive responsibility for public health and safety over matters relating to that facility.
The amendment, however, imposes residual obligations on NFS.
Paragraph 7D states that "[e]xcept as provided in subparagraphs (A), (B), and (C) of this paragraph 7, the responsibilities of the licensees, under this license...shall continue in effect...".
l (Emphasis added.)
By definition, DOE cannot have exclusive responsibility for health and safety matters, while NFS simultaneously retains responsibilities as a licensee.
There-fore, to the extent that it attempts to effectuate DOE's exempt status, the amendment violates the applicable NRC regulation.
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12.
The transfer violates the Atomic Energ Act and the Energy Reorganization Act of 1974 (ERA), by pro,
viding for the unlawful delegation by NRC of its regulatory powers over its licensee to DOE.
The ERA, Section 201(f),
42 U.S.C.
55841(f), transfers "all the licensing and related j
regulatory functions of the Atomic Energy Commission," to the Nuclear Regulatory Commission, with the exception of certain functions earmarked for the Energy Research and Development Administration.
The NRC's functions include "(p)rincipal licensing and regulation" of licensed facilities and review of the safety and safeguards of all such facilities.
42 U.S.C.
l 5844 (b).
The license amendment, however, abrogates NRC's responsibility since, as stated in paragraph 7D, the responsi-bilities of the NRC licensees "shall continue in effect, provided that neither licensee is authorized to take or permit... any actica which in DOE's judgment may inhibit or prevent DOE from taking any action under the Atomic Energy Act or the Project Act."
(Emphasis added.)
This means simply that NFS' conduct as a licensee will be governed by DOE's judgment.
It is scarcely arguable that NFS can be subject to DOE's regulatory jurisdiction.
Yet that is precisely the effect of the amendment.
The amendment will resule in NRC's abrogation of its regulatory autharity over its licensee to another agency in violation of the Energy Reorganization Act.
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13.
The transfer authorized by NRC violates the right of the licensee NFS to operate under a clearly defined or predictable regulatory standard.
The amendment restricts NFS' actions under the license to those "which in DOE's judgment" s
will not inhibit DOE'sTactions.
Thus, compliance by NFS depends upon foreknowledge of DOE's judgment - an impossibly vague standard.
DOE's unbr' idled discretion with regard to c
any actio'n by NFS under License No. CSF-1, coupled with NFS' residual res'ponsibilities under the license, places NFS in the
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doubly confounding position of being responsible for certain continuing obligations under its NRC license, while being held to the undefinable standard of avoiding any activities which in DOE's judgment would inhibit DOE's actions.
14.
NRC has no authority to suspend its Price-Anderson Indemnity Agreement with NFS.
The Amendment purports to suspend Indemnity Agreement No. B-29, while the West Valley site is in the possession of DOE.
Section 170 c. of the Atomic Energy Act of 1954, as amended, requires NRC to indemnify and hold NFS harmless.
So long as NFS is a licensee, l
NRC cannot be excused from that obligation.
Although NRC requires, as a condition of transfer to DOE, that DOE enter into agreements of indemnification with its contractor, it is not clear that such DOE agreements would provide indemnity protention to NFS.
The standard DOE indemnity agreement s
expressly excludes " liability arising out of, or in cun-nection with, any activity that is performed at a licensed facility, and that is covered by a [NRC] indemnity agreement authorized by Section 170.
(Emphasis added.)
Since the NRC amendment only suspends the license, it does not remove the West Valley site from the classification of a l
1
" licensed facility".
NFS faces a notential gap in coverage.
i Since there is no assurance that NFS has any coverage under a DOE indemnity agreement with its contractor (s), NFS could suffer severe financial risk and a nullification of its rights to protection under the Price-Anderson Act.
15.
The amendment conflicts with and violates the West Valley Demonstration Project Act, Pub. L.96-368.
Section 2(b)(4)(A) of that act provides that New York State "will make available to the Secretrzy the facilities of the Center and the high level radioactive waste at the Center which are necessary for the completion of the project."
Since NYERDA and NFS are joint holders of the license, the only way for the State, through NYERDA, to transfer the facilities is for NYERDA to g
first accept surrender of NFS' rights as licensee.
If NYERDA in unable to transfer all rights to operate the facility, then the conditions set by the Demonstration Project Act cannot be met.
In that case, neither of the parties to the project agree-ment - DOE or NYERDA - has the authority to make such a tr ansfer,
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nor can the NRC authorize the transfer 16.
For the foregoing reasons, NFS requests that it be granted a hearing in connection with the subject amendment.
Respectfully Submitted, i
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., v. v Orris S. Hiestand Attorney for Nuclear Fuel Services, Inc.
October 13, 1981
UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION I
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In the Matter of
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NUCLEAR FUEL SERVICES, INC.
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and
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Docket No. 50-201 l
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Provisional Operating NEW YORK STATE ENERGY RESEARCH
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License No. CSF-1 AND DEVELOPMENT AUTHORITY
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(Western New York Nuclear
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Service Center)
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AFFIDAVIT OF RALFH W. DEUSTER 1.
I, Palph W. Deuster, am president of Nuclear Fuel Services, Inc., with a business addrass of 6000 Execu-tive Boulevard, Suite 600, Rockville, Maryland, 20852.
2.
I am duly authorized to execute the foregoing request for hearing.
3.
The statements of fact made in this request for hearing are true and correct to the best of my knowledge and belief.
f city of Washington ss District of Columbia :
Sworn to and subscribed before me this 7 m day o f O m-1981.
w_
= s e}.,4.1 :
>-c Notary Public My Comminion Espires June 14, 1983
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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Docket No. 50-201 NUCLEAR FUEL SERVICES, Inc.
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Provisional Operating
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License No. CSF-1 CERTIFICATE OF SERVICE I hereby certify that the foregoing has been served as of this date by personal delivery or first class mail, postage prepaid, to the following:
Nunzio J. Palladino, Chairman Victor Gilinsky, Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Peter Bradford, Commissioner John F. Ahearne, Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Leonard Beckwit, Jr., Esq.
Thomas M. Roberts, Commissioner General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Carmine J. Clemente, Esq.
Richard E. Cunningham, III General Counsel Director, Division of Fuel Cycle New York State Energy Research and Material Safety and Development Authority U.S. Nuclear Regulatory Two Rockefeller Plaza Commission Albany, New York 12223 Washington, D.C.
20555 Guy H. Cunningham,'III, Esq.
Warren E. Bergholz, Jr., Esq.
Director and Chief Counsel Office of General Counsel Office the Executive Legal U.S. Department of Energy Director 1000 Independence Avenue, S.W.
U.S. Nuclear Regulatory Washington, D.C.
20587 Commission Washington, D.C.
20555
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Docketing & Service Section Samuel J. Chilk Office of the-Secretary Secretary of the Commission U.S.. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C 20555 (original and three copies)
"%.f O. S.i Hiestand Attorney for Nuclear Fuel Services, Inc.
Dated: October 13, 1981 t