ML20032A140
| ML20032A140 | |
| Person / Time | |
|---|---|
| Site: | West Valley Demonstration Project |
| Issue date: | 10/26/1981 |
| From: | Wolf J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8110280359 | |
| Download: ML20032A140 (8) | |
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION
$l OCi 2 71981-31 BEFORE THE COMMISSION
" "c"ffcIE" In the Matter of
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4'fQi \\D NUCLEAR FUEL SERVICES, INC.
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Docket No. 50-201
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Provisional Operating NEW 10RK 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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RESPONSE OF NRC STAFF IN OPPOSITION TO NFS MOTION FOR ORDER POSTPONING THE EFFECTIVENESS OF LICENSE AMENDMENT James R. Wo1f Counsel for NRC Staff 1
October 26, 1981 DESIGNATED ORIOUfAU Oortified By h'/
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0-o UNITED STATES OF AMERICA NUCliAR REGULATORY COMMISSION BEFORE THE C0KMISS10N In the Matter of
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NUCLCAR FUEL SERVICES,INC.
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and Docket No. 50-201 i
Provisional Operating NEW YORK STATE ENERGY RESEARCH License No. CSF-1 AND DEVELOPMENT AUTHORITY (Western New York Nuclear
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Service Center)
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RESPONSE OF NRC STAFF IN OPPOSITION TO NFS MOTION FOR ORDER POSTPONING THE EFFECTIVENESS OF LICENSE AMENDMENT I.
INTRODUCTION Nuclear Fuel Services, Inc. (NFS) has submitted to tne Commission its motion for an order postponing the effectiveness of an amendment (Change No. 31) to License No. CSF-1. NFS claims that under 10 C.F.R. 92.204, it is entitled 4
to a hearing prior to such amendment's becoming effective.
The NRC staff opposes the grant of this motion on the grounds that (1) 10 C.F.R. 92.204 is not applicable to the license amendment and (2) even if 10 C.F.R. 92.204 were applicable, there are adequate grounds for a determination that the public interest requires that such amendment be made effective immediately.
II. DISCUSSION A.
10 C.F.R. 62.204 Does Not Apply On August 14, 1981, the Energy Research and Development Authority (ERDA) of the State of New York, joined by the U.S. Department of Energy, submitted to NRC an application for amendment of License No. CSF-1. ERDA and NFS are co-
1 2-licensees under that license. The application for amendment made specific reference to subparagraph 4(A) of the license, pursuant to which either licensee was afforded the right, in the event of any change in the rela-tionship between them, to apply to the Canmission for an appropriate amend-ment reflecting their future responsibilities with respect to satisfying Commission regulatory requirenents.
The procedures for amendment of a license at the request of a licensee are set forth in 10 C.F.R. Part 2, Subpart A. 10 C.F.R. 92.100. These procedures were followed. A notice of proposed amendment to a fa:flity license is re-quired to be published only if the amendment involves a significant hazards consideration. The staff determined that the proposed amendment involved no significant hazards consideration. After review, the amendment was issued, authorizing the co-licensees, as their respective interests under the license appear, to transfer the facility to the Department of Energy. There is no right to a prior hearing on an amendment that involves no significant hazards consideration.
NFS argues that 10 C.F.R. 52.204 af fords an opportunity for a hearing prior to license amendment unless the public health, safety, or interest requires the amendment to be made effective immediately. But this is correct only if i
the issuance of the license amendrent requested by ERDA is governed by Subpart B of Part 2.
It is not. On the basis of a superficial examinction of 10 C.F.R. 5 2.200(a), one could, ty lifting phrases out of context, argue that Subpart B applies. But the context of the entire Subpart B makes it clear that the person requesting action thereunder would w-Wy
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be someone other than the licenses. Subpart B prescribes the procedures to deal with the imposition of restrictions upon licensees, which, understandably, they do not request, but which are initiated by the staff or upon a request by any person. Subpart A, on the other hand, is concerned with the granting of authority to licensees at their request. This is the way in which the staff has consistently applied these Subparts over the years. Here there is a request for a license amendment by a licensee for additional authority. The license amendment was not an enforcement action.
It requires nothing of the licensee or any other person.
It orders neither the doing nor tha refraining from doinc of anything. The staff acted upon the application in the manner provided for such cases by the regulations.
Since 10 C.F.R. 92.204 is not applicable NFS's motion for a stay until 92.204 has been complied with should be d;.ined.
B.
The Public Interest Requires that the Amendment Be Made Immediately Effective If 10 C.F.R. 92.204 is deemed to apply to the license amendment, NFS would be entitled to a prior hearing unless the Cor51ssion finds that the public health, safety, or inte, rest requirc-s that its provisions be made effective immediately. Although no such determination has been made, because that section does not apply in these circumstances, the staff believes that there are adequate, and even compelling, grounds that would support such a detennination.
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Immediate effectiveness in this case is warranted by considerations of the public interest. This public interest is reflected in the West Valley Demonstration Project Act, Pub.L.96-368, under which the Department of Enenjy "shall carry out" a high level radioactive waste management demon-stration project. The Department is now prepared to initiate this project, but cannot do so until the facility is transferred to it in accordance with law.
Issuance of the license amendnent, effective immediately, would author-ize the transfer and thereby enable the demonstration project to begin.
Delay in issuance o' an amendment, or delav in its becoming effective, would be contrary to the public interest because it could prevent implementation of the Congrassional mandate.
The interests of affected persons (such as NFS) may be considered, but in this case they do not outwaigh the public interest in making the license amendment immediately effective.
This is not a case whs.re the issuance of the amendment imposes any duty or burden upon a licensee. On the contrary, the license amendment is entirely remissive, setting forth the conditions upon which the licensees, as their respective interests under the license l
appear, "may transfer" the facility to i;he Department of Energy.
It may be that NFS would be indirectly affected by the issuance of the amendment be-cause of the provisions of contractual arrangements between the co-licensees and the application of local rules of property law. These issues can be heard in a different fortsn, and in fact they are being heard in federal court. New York State Energy Research and Development Authority v. Nuclear Fuel Services, Inc., CIV-81-18E (W.D.N.Y. ).
Such collateral effects, however, are remote from the Commission's proper scope of concern. They do
not outweigh the public interest that would be served by the Commission's completion of all those steps which it cea and must take before the West Valley Demonstration Project may proceed as mandated by the Congress in Pub. L.96-368.
Although state law issues between the co-licensees may have a bearing upon the' transfer of the facility, as NFS appears to believe, it is nevertheless in the public interest that the license amendment be immediately effective.
For, in the absence of such action by the Commission, thcre issues might not be ripe for judicial consideration and implementation of the demonstration project might be indefinitely delayed. Because the amendment is permissive and because its issuance leaves NFS in a position to protect its asserted l
interests in a court having jurisdiction over the subject matter, NFS is not being prejudiced as a matter of law.
As the license amendment has no coercive effect and exposes NFS to absolutely no sanctions, a basis for postponing its effectiveness is hard to perceive.
See Abbott Laboratories v. Gardner, 387 U.S.136,154 (1967). Any collateral consequences that may flow from the issuance of the amendment are subject to adjudication in court. The results of such adjudication are not con-trolled by. or even affected by, the NRC administrative action. Compare Columbia Broadcas ting System v. U.S., 316 U.S. 407, 425 (1942). Where the public interest in acting promptly outweighs the individual's interest in having a prior opportunity to be heard, such prompt administrative action is permissible. Union of Concerned Scientists v. Atomic Energy Commission, 499 F.2d 1069,1081 (D.C. Cir.1974).
In this case, the public interest
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If 10 C.F.R.52.204 is applicable, the effectiveness of the amendment should not be deferred until a hearing has been held.
III.
CONCLUSION For the reasons stated above, the NRC staff opposes the NFS motion for an order postponing the effectiveness of the amendment (Change iio. 31) to License No. CSF-1.
Respectfull
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ames R. Wolf Counsel for NRC taff Dated at Bethesda, Maryland this 26th day of October 1981'
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Y UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSk'N BEFORE THE COMMISSION 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
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Provisional Operating NEW YORK STATE ENERGY RESEARCH
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License No. CSF-1 AND DEVELOPMENT AUfHORITY
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(Western New York Nuclear
)
Service Center)
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CERTIFICATF 0F SERVICE I hereby certify that copies of RESPONSE OF NRC STAFF TO NUCLEAR FUEL SERVICES REQUEST FOR A HEARING and RESPONSE OF NRC STAFF'IN OPPOSITION TO NFS MOTION FOR ORDER POSTP0NING THE EFFECTIVENESS OF LICENSE AMENDMENT in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail systen, this 26th day of October,1981.
Samuel J. Chilk
- Carmine J. Clemente, Esq.
Secretary of the Commission General Counsel U.S. Nuclear Regulatory Commission New York State Energy Research Washington, D.C.
20555 and Development Authority Two Rockefeller Plaza Albany, New York 12223 Leonard Bickwit, General Counsel
- U.S. Nuclear Regulatory Commission Philip H. Gitlen, Esq.
Washington, D.C.
20555 Whiteman Osterman & Hanna 99 Washington Avenue Docketing and Service Section
- Albany, New York 12210 Office of the Secretary U.S. Nuclear Regulatory Commission Warren E. Bergholz, Jr., Esq.
Wash'agton, D.C.
20555 Office of the General Counsel U.S. Department of Energy Orris S. Hiestand, Esq'.
1900 Independence Avente, S.W.
Morgun, Lewis & Bockius Washington, D 20587 1800 M Street, N.W.
Vashington, D.C.
20036
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JN bh QWis R. Wolf
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[ounsel for NRC. Staff
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