ML20031E130
| ML20031E130 | |
| Person / Time | |
|---|---|
| Site: | West Valley Demonstration Project |
| Issue date: | 10/13/1981 |
| From: | Hiestand O MORGAN, LEWIS & BOCKIUS, NUCLEAR FUEL SERVICES, INC. |
| To: | NRC COMMISSION (OCM) |
| References | |
| 19787, NUDOCS 8110150123 | |
| Download: ML20031E130 (7) | |
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NUCLEAR REGULATORY COMMISSION e-pe 6 BEFORE THE COMMISSIONERS S
D to In the Matter of
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NUCLEAR FUE1 SERVICES, INC.
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and
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Docket No. 50-201
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Provisional Operatin NEW YORK STATE ENERGY RESEARCH
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License No. CSF-e A
AND DEVELOPMENT AUTHORITY
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(Western New York Nuclear
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Service Center)
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l;.( % d ISS A MOTION FOR ORDER POSTPONING THE EFFECTIVENES N
OF LICENSE AMENDMENT g
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Nuclear Fuel Services, Inc., (NFS), cc-holder with the New York State Energy Research and Development Authority (NYERDA) of License No. CSF-1, hereby moves for an order postponing the effectiveness of the license amendment (Change No. 31) issued by the NRC Staff September 30, 1981 until NFS has had the opportunity for a hearing on the matter as required by 10 C.F.R.
$ 2.204.
In support of this motion, NFS states the following.
A.
BACKGROUND 1.
Nuclear Fuel Sv.evices is co-holder with NYERDA of Provisional Operating License No. CSF-1, iss u by the Atomic Energy Commission to NFS and the New York State Atomic and 8110150123 811013 hi$1 PDR ADOCK 05000201 0
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Space Development Authority (the predecessor in int.urest of NYERDA) on April 19, 1966.
The license authorizes operation of a spent nuclear fuel reprocessing and radio-active waste disposal facility at West Valley, New York.
NFS was li;ensed 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 assumed 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 1
West Valley facility.
The Act, Section 2(b)(4)(A), provides P
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 Canter, which are necessary for completion of the project."
On October 1, 1980, NYERDA and DOE entered into a Cooperetive Agreement tc implement the demonstration project.
NFS was not a party to that Agreement.
3.
On August 14, 1981, NYERDA, joined by DOE, submitted an application to the Nuclear Regulatory Commission (NRC) for an e.mendment to License No. CSF-1 to authorize temporary transfer of the facility to DOE in order to conduct the demonstration project.
NRC advised NFS of the propased amend-
. c ment by letter on August 26, 1981 and requested NFS' cosition.
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-pursuant 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.
FFS has today filed a request for a hearing in con-nection with this amendment.
B.
RIGHT TO PRIOR HEARING 5.
10 C.F.R.
f 2.204 states:
i The Commission may modify a license by issuing an amendment on notice to the licensee that he may demand a hearing with respect to all or any part of the amendment within twenty (20) days from the date of the notice or such longer period as the notice may provide.
The amendment will become effective on the expiration of the period during which the licensee may demand a hearing, or, in the event that he demands a hearing, on the date specified in an order made following the 1 taring.
When the Commission finds that the public nealth, safety, or interest so requires, the order may be made effective immediately.
6.
10 C.F.R. 5 2.204 places a mandatory and non-discretionary duty on the Commission to provide the licensee f
. i with an opportunity for a hearing before amending his license.
There is but one exception to this rule.
If the 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 ccmpel exercise of NRC's summary authority to prntect the public's
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health, safety, or interest. -
In this case the NRC staff made no such finding before the issuance of the arendment.
Indeed, the NRC staff made a finding of no significant hazards considerations, which is the polar opposite of emergency findings.
Thus, having failed to make the appropriate findings, the Commission is bound to the mandatory, non-discretionary duty imposed by its own regulations.
The amendment cannot be ef-fective until NFS is afforded its absolute right to a hearing.--/
7.
The NRC staff may well argue that Section 189(a) of the Atomic Energy Act of 1954 allows it to dispense with a hearing with regard to an amendment to an operating license upon determination by the Commission that the amendment involves i
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Consumers Power Company (Midland Plant, Units 1 and 2),
- / A federal agency must adhere to its own regulations, and
_its failure to do so is a violation of due proceis.
Accardi v.
Shaughnessy, 347 U.S. 260, 268 (1954); service v.
Dulles, 354 U.S.
363 (1967); Kelly v. Railroad Retirement Board, 625 F.2d 486, 492 (3d Cir. 1980)
y "no significant hazards consideration."
While the language of that statute is not free from unambiguity
/ in regard to the rights of interested third parties, it cannot be interpreted to deny a licensee his absolute right to the prior hearing man-dated by 10 C.F.R. 5 2.204.
The NRC staff has not and cannot point to sound authority which limits this absolute right of the licensee.
The action in question modifies NFS' license, and the mere labeling of the action as an " amendment" so as to r..ake it immediately effective flies in the face of the plain language of 10 C.F.R.
S 2.204.
8.
NFS has today filed a Request for Hearing in connection with the amendment to its license.
For the fo.agoing reasons, NFS requests that the Commission carry out its mandatory non-discretionary duties to: 1) grant that request, and 2) issue an order postponing the effectiveness of the amendment until the conclusion of hearings.
Respectfully submitted, e
n,,A. 'ed Orris t. Hiestand
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Attorney for Nuclear Fuel Services, Inc.
October 13, 1981
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As evidenced by the varying interpretations presented In Sholly v. United States Nuclear Regulatory Comm'n, 651 F.2d 780 (D.C. Cir. 1980), cert. granted sub. nom., United States Nuclear Regulatory Comm'n v. Sholly, 49 U.S.L.WT 3B82 (May 26, 1981).
I UN11ED STATES OF AMERICA NUCLEAR REGULATORY COSU4ISSION 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 Uashington, 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. Clemr.nte, Esq.
j Richard E. Cunningham, III General Counse3.
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. Cunnir.gham, TII, Esq.
I 1rren 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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2-is Docketing 6 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)
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m O. S.\\ liiestand Attohey for Nuclear Fuel Services, Inc.
Dated: October 13, 1981