ML20032A166
| ML20032A166 | |
| Person / Time | |
|---|---|
| Site: | West Valley Demonstration Project |
| Issue date: | 10/20/1981 |
| From: | Edgar G MORGAN, LEWIS & BOCKIUS, NUCLEAR FUEL SERVICES, INC. |
| To: | U.S. COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT |
| Shared Package | |
| ML20032A162 | List: |
| References | |
| NUDOCS 8110280391 | |
| Download: ML20032A166 (27) | |
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11 T 22 P1:45 Nuclear Fuel Services, Inc.,
)
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) 00CMETING & SERVICE Petitioner, 3
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)
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Nuclear Regulatory Commission,
)
)
Respondent.
)
)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR A STAY OF ORDER PENDING REVIEW George L. Edgar Thomas A. Schmutz Howard T. Weir 1800 M Street, N.W.
Washington, D.C.
20036 (202) 872-5000 OF COUNSEL:
Orris S. Heistand 1800 M Street, N.W.
Washington, D.C.
20036 (202) 872-5160 MORGAN, LEWIS & BOCKIUS 1800 M Street, N.W.
Washington, D.C.
20036 (202) 872-5000 8110280391 811020 PDR ADOCK 05000201 0
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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Nuclear Fuel Services, Inc.,
)
)
Petitioner,
)
)
v.
)
No.
)
Nuclear Regulatory Commission,
)
)
Respondent.
)
)
CERTIFICATE REQUIRED BY RULE 8(c) 0F THE GENERAL RULES OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA The undersigned counsel of record for Nuclear Fuel Services, Inc., certifies that the following listed parties appeared below:
United States Department of Energy New York State Energy Research and Development Authority Nuclear Fuels Services, Inc. which is a wholly owned subsidiary of Getty 011 Co.
Subsidiaries and affiliates of Getty 011 Co. are:
Getty Petroleum Company Mediterranean (Algeria) Oil Company Getty Petroleum Ireland, Limited Getty Pipe Line Company Getty Pipeline, Inc.
Chase Transportation Company Chisholm Pipeline Company Osage Pipe Line Company Texas-New Mexico Pipe Line Company Getty Refining and Marketing Company Chase Terminal Company Getty Fleet Corporation Getty Pipe Company Mohawk Crude Purchasing Company Mohawk Petroleum Corporation, Inc.
Petroman, Inc.
Getty Reserve Oil, Inc.
Basin Petroleum North Sea Corp.
Basin Petroleum Turkey Corp.
RVO Petroleum Co.
Getty Rice Ranch Estates, Inc.
Getty Synthetic Fuels, Inc.
Grande Properties, Inc.
Hilbouty Alaska Oil Company I
7 3
Hawkeye Chemical Company Heulva Pyrites, Inc.
Iberian Petroleum, Ltd.
Minnehoma Corporation Minnehoma Cotton, Inc.
Minnehoma Development, Inc.
Minnehoma Land and Farming Company Mitsubishi Oil Company, Limited Norske Getty Exploration Nuclear Fuel Services, Inc.
Pacific Western Oil Corporation Reserve Oil and Gas Company RVO Insurance, Ltd.
Seville Metals Corporation Skelly Leasing Company Vanply, Inc.
Vancouver Plywood Co., Inc.
Vanply of Liberia, Inc.
Skelly 011 Company Tide Water Oil Company (India), Limited Tidewater Oil Company Walfish Miaing Company Yong-Nam Chemical Company, Ltd.
Getty Oil (Guatemala), Inc.
Getty Oil, (Ivory Coast), Inc.
Getty Oil, (Morocco), Inc.
Getty Oil, (Mossel Bay), Ltd.
Getty Oil, (Peru), Inc.
Getty Oil, (Sakala), Inc.
Getty Oil (Sharj ah), Inc.
Crescent Petroleum Company Getty Oil (Sumatra), Inc.
Getty Oil (Tomori), Inc.
Getty 011 (Trinidad and Tobago), Inc.
Getty 011 (Walvis Bay), Ltd.
Getty 011 Company Foundation Getty 011 Company of Spain S.A.
Getty Oil Development Company, Ltd.
Getty Oil Drilling Company Getty Oil International (Antilles) N.V.
Getty Oil International (Argentina), Inc.
Getty Oil International (Bolivia), Inc.
Getty Oil International (Caribbean) N.V.
-Getty 011 International (Congo), Inc.
Getty Oil International (Equatorial Guinea), Inc.
Getty Oil International (Ghana), Inc.
Getty Oil International (Guatemala), Inc.
Getty Oil International (Indonesia), Inc.
Getty Oil International (Ireland), Ltd.
9
a
. Getty Oil:1nternational (Mauritania), Inc.
Getty Oil International (Nine), Inc.
Getty Oil International (Orient), Inc.
Getty Oil International (Red Sea), Inc.
Getty 011 International ~(Sinai), Inc.
Getty Oil International (Somalia), Ltd.
Getty 011 International (Soain) S.A.
Getty Oil International (Ten), Inc.
Getty Oil International.(Three), Inc.
Getty Oil International (Vietnam) Inc.
Getty Oil International Exploration Company Getty Oil Operations Company Western Crude Oil, Inc.
Banner, Inc.
Say Transe,rt Corporation Butte Pipe Line Company Gibson Holdings, Ltd.
Gibson Petroleum Ltd.
North Slope Gas Transmission Corporation North Slope Pipe Line Corporation Northern Tier Pipeline Company Pontotoc Oil Company Uinta Pipeline Corporation l
Wascana Pipe Line, Inc.
Wascana Pipe Line, Inc.
1 Wesco Gas Services, Inc.
Wesco International, Inc.
4 Easco, S.A.
Dieter Pohlmann & Co. GmbH.
i Easco, B.V.
Easco, GmbH.
Easco International, Sarl.
~
Easco Marine, Ltd.
Easco Petroleum, Ltd.
Easco, S.r.l.
j Wesco GmbH.
Wesco Petroleum, Ltd.
+
j Wesco Pipe Line Company Plains Pipe Line Company West Shore Corporation i
Western Crude Terminals, Inc.
Western Gravities, Inc.
Wyanot. Pipe Line Company Arbuckle. Pipe Line Company Associated Oil Company Canadian Reserve Oil and Gas Ltd.
Chembond Corporation Chembond of British Columbia Ltd.
Colombian Reserve Oil and Gas Company 1
Entertainment and Sports Programming Network, Inc.
ERC Management Corporation m
8 1
. Employers Reinsurance Corporation American Defender Life Insurance Company ADL Financial Services, Inc.
ADL Investment Company, Inc.
American Travel Corporation Wallace Butts Insurance Agency, Inc.
Centinnial Life Insurance Company F.I.C. and Associntes, Inc.
First Administration Dervice Company,. Enc.
Hanover Financial Corporation Hanover Sales Corporation First Excess and Reinsurance Corporation First Systems Corporation FORM Foreign Reinsurance Management AG National Fidelity Life Insurance Corporation Toplis and Harding, Inc.
First Fidelity Equity Corporation FFEC-Five, Inc.
FFEC-Four, Inc.
FFEC-Six, Inc.
FFEC-Two, Inc.
Getcom, Inc.
Getty 'sian Oil Company Getty Capital Corporation Getty Chemical Corgany Chemplex Company Chemplex Construction Corporation Getty Crude Gathering, Inc.
Getty International, Inc.
Getty Iran Ltd.
Iricon Agency Ltd.
Getty Marina Corporation Getty Maritime, Inc.
Getty Marine Services Ltd.
Getty Methanol Corporation Getty Mineral Resources Company Plateau Mining Company Getty Minerals Company, Limited Getty Mines, Limited Energy Fuels Corporation Getty Mining (Chile), Inc.
Cetty Mining (Ireland), Ltd.
Getty Mining Northwest, Limited Getty Mining (Philippines), Inc.
Getty Mining (Portugal), Inc.
Getty Mining Pty. Ltd.
Getty Oil (Angola), Limited Getty Oil (Britain) Limited Getty Oil Exploration (U.K.), Limited
. Getty Oil (Canadian Operations), Ltd.
Cetty Canadian Metals, Ltd, Getty 011 (Canada), Ltd.
~
Gett', lil ('.ongo), Inc.
George. L. Edgar
~
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TABLE OF CONTENTS Page TABLE OF AUTHORITIES.
STATEMENT OF FACTS A.
Background
B.
West Valley Demonstration Project Act ARGUMENT I.
NFS MEETS Ti!E APPLICABLE TEST FOR A STAY PENDING REVIEW A.
NFS has Demonstrated a Likelihood of Success on the Merits B.
NRC's Action will Cause NFS Irreparable Harm if Injunctive Relief is not Granted.
C.
The Injury to NFS Outweighs the Harm to The NRC.
D.
The Public Interest Lies in Permitting NFS a Hearing on the Amendment to License No. CSF-1 CONCLUSION
TABLE OF AUTHORITIES I
Cases Page
- Accardi v. Shaughnessy, 347 U.S. 260 (1954)
Billiteri v. United States Bd. of Parole, 541 F.2d 938 (2nd Cir. 1976)
Caswell v. Califano, 435 F.Supp. 127, (D. Me. 1977), aff'd, 583 F.2d 9 (1st Cir. 1978)
Dean Milk Co. v.
City of Madison, 340 U.S.
349 (1951)
Fahey v. Mallonee, 332 U.S. 245 (1947)
General Electric Co. v. Seamans. 340 F.Supp. 636 (D.D.C. 1972)
Pacific Molasses Co. v. F.T.C., 356 F.2d 386 (bth Cir. 1966)
Ryan v. Shea, 525 F.2d 268 (10th Cir. 1975)
Service v.
Dulles, 354 U.S. 363 (1959)
United States ex rel McLennan v. Wilbur, 283 U.S. 414 (1931)
Virginia Petroleum Jobbers Asso. v.
F.P.C.,
104 App. D.C.
106, 259 F.2d 921 (D.C. Cir. 1958) ydrginia Sunshine Alliance v. Hendrie, 477 F.Supp. 68 (D.D.C. 1979)
Washington Metropolitan Area Transit Commission v.
Holiday Tours, Inc., 182 App. D.C. 220, 559 F.2d 841 (D.C. Cir. 1977)
Cases or authorities chiefly relied upon are marked by asterisks.
4
. ' Administrative Decisions Consumers Power Co. (Midland),.CLI-73-38, 6 A.E.C. 1082 (1973).
Licensees Authorized to Possess _or Transport Strategic Quantities of Special Nuclear Material, (LI-77-3), 5 N.R.C. 16 (1977)
I Statutes.
4 West Valley Demonstration Project'Act, Pub.L.96-368 (1980) 28 U.S.C. 5 1361
. Regulations f
- 10 C.F.R. S 2.204 (1980) 4 Cases or authorities chiefly relied upon are marked by
.sterisks.
l IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Nuclear; Fuel Services, Inc.,
)
)
Petitioner,
)
)
I
)
No.
v.
)
Nuclear Regulatory Commission, et al.
)
)
Respondent.
)
)
MEMORANDUM IN SUPPORT OF APPELLANT'S MOTION FOR A STAY OF ORDER PENDING REVIEW In this appeal Nuclear Fuel Services, Inc. ("NFS") challenges the actions of the Nuclear Regulatory Commission ("NRC") in per-mitting a proposed amendment to NFS's license to operate a nuclear fuel reprocessing facility to take effect without first providing NFS a hearing as specifically required by the NRC's own regulations.
10 C.F.R. 5 2.20'. (1980) imposes a mandatory, non-discretionary dur.y upon the NRC to grant the opportunity for a hearing to a licensee on any amendment which modifies its license, and to postpone the effectiveness of any such amendment pending comple-tion of such hearings as the licensee may request.
Although NFS has requested a hearing, the NRC, in blatant violation of its regulations has ignored NFS's request.
As will be explained more fully, the net effect of the NRC's inaction is to place NFS in an impossible dilemma.
NFS cannot relinquish its rights and responsibilities as licensee, as the proposed amendment provides, without incurring a
. l substantial risk of violating its existing license, and the Atomic Energy Act.
More importantly NFS must confront this dilemma without having the prior hearing on the license amendment which is guaranteed by 10 C.F.R. 5 2.204. Because the NRC has chosen to treat the proposed amendment as immediately effective, absent the issuance of a stay by this Court, NFS will have irretrievably lost its right to a prior hearing.
The NRC's adamant refusal to hold a prior hearing as re-quired by NRC's own regulation is particularly egregious in light of this court's decision in Sholly v. N.R.C., 651 F.2/
780 (D.C. Cir. 1981). 1/
In that decision this Court construing the language of Section 189(a) of the Atomic Energy Act held that the NRC must always hold a hearing prior to issuance of an order amending a license.
Here, the NRC has refused to grant a hearing ou the face of a clear and unambiguous regula-tion which it promulgated and which specifically provides for a prior hearing.
The NRC should not be permitted to act with impunity in ignoring its own procedural rules and regulations.
Accordingly, for the reasons which follow, NFS requests this Court to issue a stay of the effectiveness of the proposed amendment to NFS's license pending review by this Court.
1/
NFS understands that the Supreme Court has recently issued a writ of certiorari in Sholly.
NFS does not rely on Sholly for its right to a prior hearing but instead relies exclusively on 10 C.F.R. $ 2.204 (1980).
o
. REFERENCES TO PARTIES AND RULINGS This appeal challenges the Order of the United States Nuclear Regulatory Commission in amending NFS's ope;3 ting license without observance of the procedures reauited by 10 G
C. F. P.. 5 2.204.
The Order was issued by the NRC on September 30, 1981 and is identified as Nuclear Fuel Services, Inc.
and New York State Energy Research and Development Authority (Western New York Nuclear Service Center) Issuance of Amend-ment to Facility License No. CSF1, Docket No. 50201.
A copy of the Order and Amendment are included in the Appendix to this Memorandum.
2/
The following were parties in the proceeding before the NRC:
New York State Energy Research and Development Authority Two Rockefeller Plaza Albany, New York 12223 United States Department of Energy 1000 Independence Avenue, S.W.
Washington, D.C.
20587 ISSUES PRESENTED FOR REVIEW Whether the Order of the NRC amending operating License CSF-1 should be stayed pending review by this Court.
3/
2/
See Appendix at A.
3/
Although there are no related actions in other courts as defined by Rule 8(b) of the Rules of this Court, there are two actions pending in the United States District Court for the Western District of New York, which impact on this case and are described herein.
L
e 0 STATEMENT OF THE CASE A.
Background
In 1963 the New York State Office of Atomic Development, predecessor in interest to the New York State Energy Research and Development Authority (both hereinafter referred to as "the Authority" or "NYERDA") acquired in the name of the State a site near West Valley, New York, known as the Western New York Nuclear Service Centr- (" Center").
The Authority assumed jurisdiction over the Center in order to develop facilities for receiving spent nuclear fuel and for storing radioactive wastes and to lease a portion of the Center to accommodate a privately owned and operated facility for the reprocessing of spent nuclear fuel.
After seeking expressions of interest from industry, the Authority determined that Nuclear Fuel Services, Inc. was qualified to construct and operate a spent nuclear fuel reprocessing plant, and to manage and operate a fuel receiving facility, as well as facilities for the storage of high and low level nuclear waste, for the Authority at the Center.
On May 15, 1963, the Authority and NFS entered into a Lease and a Waste Storage Agreement.
Pursuant to these agreements, NFS was responsible during the term of the lease for the operation of the leased premises and for the construction, operation and maintenance of the facilities to be
. constructed thereon.
The parties' various agreements con-templated that at the expiration of the lease, on December 31, 1980, NFS wruld surrender the facilities to the Authority and NFS would have no further duties or responsibilities.
Sections 3.04 of the Waste Storage Agreement, for example, provided in pertinent part:
Upon any cancellation or termination of the lease, and in any event at the end of the Initial Term unless the Authority and NFS shall otherwise agree, NFS will surrender, and the Authority will assume, full responsibility for perpetual operation, surveillance, maintenance, replacement, and insurance of the then existing High Level Storage facilities provided that such surrender and assumption shall not be or become effective until such time as all licenses permits, consents and approvals of the AEC and all other governmental instrumentalities having jurisdiction required in connection with such surrender and assumption of responsibility shall have been i
obtained.
Similar clauses were included in 6.04(c) of the Waste Storage Agreement regarding low level stcrage facilities and 3(a) of the Letter Agreement regarding the Plant Storage Facility.
In 1966, upon application of NFS and the Authority, the United States Atomic Energy Commission (now Nuclear Regulatory Commission) [both Commissions will be referred to as the "NRC"]
issued Provisional Operating License No. CSF-1 to the Authority and NFS as joint licensees authorizing NFS to possess radio-active materials and to operate the Plant, Fuel Receiving Facility, High Level Storage Facility and Plant Storage Facility, and authorizing the Authority to own the radioactive premises and facilities at the Center.
The terms of the License state, in part, that "(n)otwith-standing any expiration, modification, cancellation or termination
. of the contractual arrangements between NFS and (NYERDA),
NFS shall, so long as this license shall be in force with respect to NFS, be responsible for assuring that the provisions of this license'and Commission regulations for protection of health and safety from radiation hazards are observed with respect to the facility and materials covered by the license."
Thus, until such time as NFS's existing license is terminat d, NFS has a continuing obligation to ensure the safety of the Center.
The reprocessing plant was shut down by NFS in 1972 in accordance with a modif cation program approved by the Authority.
NFS began the modification program by decontaminating part of the plant disconnecting and removing some old equipment, and otherwise making arrangements for the installation of new equip-much of which had already been purchased or constructed by
- ment, NFS.
In 1973, the NRC instructed NFS to discontinue the modifi-cation program pending review and isr-uance of a construction permit by the NRC.
NFS promptly applied for the necessary NRC construction permit.
As a result of regulatory changes, the construction permit was never issued, the moficiation program could not be completed, and the plan has never resumed operation.
In December, 1977 the NRC published an order which, in addition to terminating further consideration of NFS' application for a con-struction permit, effectively prohibited commercial reprocessing in the United States.
The State licensed Low Level Storage facilities were closed in 1975.
Since 1975, NFS has been per-forming essentially caretaker functions at the Center.
On April 29, 1976 NFS notified the Authority in writing that NFS intended to surrender to the Authority the full
responsibility for the perpetual operation, surveillance, maintenance, replacement and insurance of the High Level Storage Facilities, Low Level Storage Facilities and Plant Storage Facilit The Authority. responded to NFS' notice by insisting that NFS would remain responsible for such facilities until such time as all necessary licenses, permits, consents and approvals of regulatory authorities relating to such surrender had been obtained by the Authority.
Subsequently, on December 15, 1977, NFS notified the Authority in writing that NFS would not exercise its option to renew the Lease at the expiration of the initial term, but would allow the Lease to expire on December 31, 1980.
NFS further urged the Authority to take timely action to obtain the license amendments or licenses necessary for NFS to surrender and the Authority to accept the Leased Premises, Leased Facilities and Lessee's Improvements (the entire site) pursuant to Article 26 and 27 of the Lease no later than December 31, 1980.
Despite its obligation to seek and obtain the necessary licenses, permits, consents and approvals required for NFS to surrender the leased premises and storage facilities, the Authority has failed to apply for or take any other action to obtain such license amendments or licenses from NRC.
NFS's lease expired on December 31, 1980.
NFS, however, is prevented by NRC regulations as well as its operating license from vacating the Center.
B.
West Valley Demonstration Proj ect Act On October 1, 1980, the West Valley Demonstration Project Act, Pub. L.96-368 ("Act"), was enacted.
The purpose of the
e g 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, The Authority and DOE entered into a Cooperative. Agreement to implement the demonstration project.
NFS was not a party to that Agreement.
Pursuant to the Cooperative Agreement, the Authority granted exclusive use and possession of the Center to DOE for the duration of the Proj ect, which is expected to last for more than fifteen years.
A necessary precondition to the lawful trans-fer of the Center to the Authority or DOE is a valid amendment to NFS's license issued by NRC permitting NFS to transfer the facilities to either the Authority or to DOE.
Rather than seek such an amendment, on August 14, 1981 the Authority joined by DOE applied for an amendment to the Authority's and NFS's license, without NFS's approval or consent, which would authorize the temporary transfer of the' facility to DOE, and merely suspend certain of NFS's rights and responsibil-ities under the license.
At the same time the proposed amendment requires NFS to retain an ill-defined set of residual responsibili-ties.
NRC advised NFS of the proposed amendment by letter on August 26, 1981 and requested NFS's position.
On September 11, 1981, NFS responded to the license amend-ment application and opposed the issuance of the amendment on the grounds, inter alia, that the proposed amendment would violate
. the terms of the Lease and Waste Storage Agreement between NFS and the Authority and would expose NFS to continuing liability under its NRC license without any authority to carry out its responsibilities as licensee.
NFS also advised the NRC that should NRC issue the proposed amendment, NFS would oppose in accordance with 10 C.F.R. $ 2.204. 4/
The NRC notified NFS by letter dated September 30, 1981 that the amendment was " authorized" and that NFS could request a hearing in accordance with Section 189(a) of-the Atomic Energy Act of 1954 as amended. 5/
The notice failed to advise NFS that pursuant to 10 C.F.R.
$ 2.204 (1980), NFS had the unequivocal right to a hearing prior to the amendment taking effect.
Section 2.204 provides:
$2.204 Order for modification of license.
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 expira-tion 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 hearing.
When the Commission finds that the public health, safety, or interest so requires, the order may be made effective immediately.
The Commission made no finding that public health, safety or interest required the amensiment to become effective immediately.
On October 6, 1981, NFS submir.ted to the NRC a proposed amendment to License No. CSF-1 which provided for the termination 4/
See Appendix at B 5/
see Appendix at A.
f o of NFS's rights and responsibilities under its operating license upon DOE assuming exclusive possession and control of the facil-ity.
6/ Because NRC failed to act on its proposed amendment, on October 13, 1981, NFS submitted to the NRC a request for a hearing pursuant to 10 C.F.R. 5 2.204 and a motion requesting the ment of the effectiveness of the proposed license amendment until such a hearing could be held.
7/ Despite repeated requests by NFS, the NRC has not yet acted on either of these requests.
8/
Concurrent with the activities at the NRC, both NFS and the Authority initiated civil actions in United States District Court fer the Western District of New York.
As part of its action, the Authority has sought an order, based on its contracts with NFS, to compel NFS to transfer the facility to DOE and to vacate the facility.
Such a transfer can take place only if the NRC issues a valid order amending 1:FS's license permitting such a transfer.
Although no legally effective NRC order has as yet been issued, and no hearing has been held on the proposed amendment, the District Court for the Western District of New York, relying on the NRC's notice of September 30, 1981, issued an order on October 16, 1981, requiring NFS to transfer the facilities to DOS by noon, October 20, 1981.
9/
6/
See Appendix at C.
7/
See Appendix at D and E.
8/
See Appendix at F and G.
9/
See Appendix at H.
, I.
NSF MEETS THE APPLICABLE TEST FOR A STAY PENDING REVIEW In this Circuit, it is well established that the following factors are to be taken into account in deciding an application for atay pending review.
(1) a substantial likelihead that petitioner will prevail on the merits; (2) a substantial threat that petitioner will suffer irreparable harm if such relief is not granted; (3) that other parties to the proceeding would not be substantially harmed if injunctive relief were granted; (4) that the granting of injunctive relief will not har i
I the public interest.
Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977);
Virginia Petroleum Jobbers Asso. v.
F.P.C., 259 F.2d 921 (D.C.
Cir. 1958).
Once these factors have been examined by the Court they must be balanced to determine the proper equitable result.
Washington Metropolitan Area Transit, supra at 843-844; Virginia Sunshine Alliance v. Hendrie, 477 F.Supp. 68, 70 (D.D.C. 1979).
As will be discussc d more fully below, the application of these factors to the facts of this case demonstrate that a stay pending review is fully warranted.
A.
There is a Substantial Likelihood That NFS Will Prevail on the Merits The NRC regulations governing the amendment of licenses clearly and unequivocally provide for a hearing upon request
. i prior to permitting a proposed license amendment to take effect.
Section,2.204 of the NRC's regulations provides:
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 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 hearing.
When the Commission finds that the public health, safety, or interest so requires, the order may be made effective-ly immediately.
10 C.F.R. 6 2.204 (1980).
Under the clear language of this regulation, a licensee may demand a hearing as of right prior to the issuance of any amendment modifying its license.
Once such a request is made, the amendment can become effective only after such a hearing is held and an order issued by the NRC.
The NRC may act in a summary fashion without awaiting either the expiration of the 20 day period or the conclusion of a request-ed hearing if the " Commission finds that the public health, safety, or interest so requires.
This exception, however, only obtains in circumstances which are in the nature of an emergency and which compel the exercise of NRC's summary authority to protect the public's health. safety cr interest.
- Moreover, the use of such summary action "is a heavy responsibility to be exercised with disinterestedness and restraint.
Fahey
- v. Mallonee, 332 U.S. 245, 253-54 (1947).
The NRC has long
. recognized the drastic nature of summary action.
In Consumers
/
Power Co. (Midland), CLI-73-38, 6 A.E.C. 1082, 1083 (1973), the Commission stated:
It has always been recognized that summary administrative action substantially curtail-ing existing rights is a drastic procedure.
Similarly, in Licensees Authorized to Possess ajt Transport Strategic Quantities of Special Nuclear Material, (LI-77-3) 5 N.R.C. 16, 20 (1977), the NRC again noted the drastic nature of emergency action, and stated that "available information must demonstrate the need for emergency action and the insufficiency of less drastic measures."
C.F. Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951).
In this case, NFS timely requested a hearing on the proposed amendment modifying its license pursuant to 10 C.F.R. 5 2.204.
The NRC, however, has chosen to ignore that request as well as the time limits imposed by 10 C.F.R. 5 2.204 and permitted the proposed license amendment to take effect immediately.
In taking this summary action, the NRC made no finding that the public health, safety or interest demanded summary action.
Indeed, the NRC staff made a finding that the proposed amendment involved "no significant hazards consideration," which is the polar opposite of an emergency finding.
Thus, under the plain and unambiguous language of 10 C.F.R. $ 2.204 NFS has a clear right to a hearing on the proposed amendment to its license prior to the issuance of such amendment by the NRC.
j As a federal agency, the NRC must adhere to its own regula-tions.
Its failure to do so is in violation of due process.
Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); Service v.
Dulles, 354 U.S. 363 (1957).
As the United States Court of Appeals for the Fifth Circuit stated in Pacific Molasses Co. v.
FTC, 356 F.2d 386, 389-90 (5th Cir. 1966):
When an administrative agency promulgates rules to govern its proceedings, these rules must be scrupulously observed.
See Service v. Dulles, (1957), 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed. 2d 1403.
This is so even when the defined procedures are '.
. generous beyond the requirements that bind such agency.
Vitarelli v. Seaton, 2d 1012 (Justice Frankfurther dissenting).
For once an agency exercises its discretion and creates the procedural rules under which it desires to have its actions judged, it denies itself the right to violate these rules.
United States, ex rel. Accardi v.
Shaughnessy, (1954), 347 U.S. 260, 74 S.Ct.
499, 98 L.Ed. 681.
Here, the NRC in promulgating Section 2.204 denied itself the right to violate that regulation and act in a summary fashion.
Section 2.204 pr4' ides NFS a right to a hearing on any proposed amendment modifying its license and imposes a corresponding duty on the NRC to convene such a hearing.
The NRC's duty in this case is " ministerial and the obligation to act is preemptory and plainly defined."
United States ex rel McLennan v. Wilbur, 283 U.S. 414, 420 (1931).
B.
Absent the Issuance of a Stay NFS Will Suffer Irreparable Injury By acting in a summary fashion and in patent violation of its own rules of procedure, the NRC has deprived NFS of its right to a hearing prior to the issuance of an amendment to its license.
15 -
NFS has no administrative remedies available and absent the issuance of a writ of mandamus, NFS will have irretrievably lost its right to such prior hearing. 10/
Under similar circumstances, courts have enjoined agency action where federal agencies have failed to hold required hearings and no administrative remedies were available.
In Ryan v. Shea, 525 F.2d 268 (10th Cir. 1975), the Tenth Circuit upheld a district court order directing the continued payment of Supplemental Security Income benefits until a prior hearing was held regarding eligibility. In that case the Social Security Administrativn attempted to withhold payments without providing prior notice and an opportunity to be heard to the benefit recipients.
In finding that the recipients had no other available adequate remedy the court found that the recipients' only recourse would be to demand the evidentiary to which they are entitled after the termination of benefits, and whether they were eventually granted benefits, or finally denied benefits sought, in either event they would have lost their right to a determination as to whether they are entitled to a continuation of their presumptive benefits until afforded an evi-dentiary hearing prior to termination thereof.
(Emphasis in original).
See also, Caswell v. Califano, 435 F.Supp. 127 (D. Me. 1977), aff'd, 583 F.2d 9 (1st Cir. 1978).
In this case, regardless of whether NFS is ultimately successful in contesting the proposed amendment, the NRC in giving effect to the proposed amendment, has deprived NFS of its right to a prior hearing.
10/ NFS has made a number of requests to the NRC that it postpone tee effectiveness of the proposed amendment pending a hearing.
The l
NRC has ignored those requests.
See Appendix at F and G.
i-
16 -
NRC's failure to hold such a hearing has consequences far beyond the immediate impact of the license amendment.
NFS had previously entered into various agreements with the New York Energy, Research and Development Authority in which NFS agreed to surrender and the Authority agreed to accept the various facilities at the West Valley Center upon the expiration of those Agreements on December 31, 1980.
A necessary precondition to the transfer of those facilities was a valid order from the NRC modifying NFS's license to permit su-5 1 transfer.
NFS assumed, based on the clear language of 10 C.F.R.
! 2.204 that it would have the oppor-tunity to be heard regarding any proposed amendment modifying its license prior to the issuance of the amendment.
By issuing the proposed amendment in a summary fashion, the NRC not only unlawfully deprived NFS of its right to a prior hearing but also satisfied the precondition to the transfer of the various facilities at the Center, thus giving immediate effect to the license amendment and drastically altering the status gu2 11/ As a result of the NRC's unlawful action, the Federal District Court for the Western District of New York on October 16, 1981, issued an order requiring NFS to transfer the facilities to DOE and vacate the Center by midnight, October 19, 1981.
Once that transfer is complete, and NFS has vacated the Center and relinquished control to DOE, NFS will have no means 11/ NRC was well aware of the impact of its order in the ongoing Tftigation in New York as evidenced by the NRC staff report attached to the proposed amendment.
. of fulfilling its responsibilities as licensee but will none-theless be liable for the fulfillment of those responsibilities.
Aside from the risks' posed by the loss of control of the Center, NFS, cannot as a practical matter reassume control should the amendment to its license ultimately be revoked by the NRC after a subsequent hearing.
Upon vacating the premises, NFS will be forced to terminate the employment of its staff and thus will not have sufficient personnel to continue as operator of the facility at some later date.
Thus, the net result of the NRC's summary action will be the permanent forfeiture of NFS's right to a prior hearing.
Plainly, the absolute deprivation of such a right rises to the level of irreparable injury.
See Ryan v. Shea, supra; Caswell v. Califano, supra.
C.
The Injury to NFS Outweights the Harm to the NRC The NRC can hardly be heard to argue that a failure to abide by its own regulations and grant NFS a right to a hearing on the proposed amendment of License Mo. CSF-1 will cause it any harm.
Indeed, a stay in this case will do no more than preserve the status quo pending review by this Court.
NFS on the other hand, has shown that the deprivation of its right to a prior hearing on that amendment will cause it irreparable harm.
D.
The Public Interest Lies in Permitting NFS a Hearing on the Amendment to License No. CSF-1 In no conceivable manner will the public interest be disserved if NRC is required to abide by its own regulations and grant NFS a hearing prior to effectuating the amendment to License No.
. CSF-1.
The Amendment itself is devoid of any reasons why it must be made effective upon issuance.
On the other hand, the public does have a very significant interest in having federal agencies adhere to their own regulations.
Presumably, such regulations are promulgated in order to permit the agency to best discharge their functions.
In arbitrarily ignoring such regulations, an agency, such as NRC here, betrays that function and acts in direct opposition to the public interest.
See General Electric Co. v. Seamans, 340 F.Supp. 636, 641 (D.D.C. 1972)
(public interest requires issuance of preliminary injunction to ensure Air Force complies with its own regulations).
CONCLUSION Accordingly for the foregoing reasons, NFS respectfully requests the Court to stay the effectiveness of NRC's Order amending License No. CSF-1 pending review by this Court.
Respectfully submitted, s
Geor L. Ed ar Thomas A. Schmutz Howard T. Weir 1800 M Street, N.W.
Washington, D.C.
20036 (202) 872-5000 OF COUNSEL:
Orris S. Heistand 1800 M Street, N.W.
Washington, D.C.
20036 (202) 872-5160 MORGAN, LEWIS & BOCKIUS 1800 M Street, N.W.
Washington, D.C.
20036 (202) 872-5000
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
-)
Nuclear Fuel Services, Inc.,
)
)
Petitioner,
)
)
No.
v.
)
)
U.S.' Nuclear Regulatory Commission, et. al.
)
)
Respondent.
)_
)
APPENDIX Description Notice and Order Amending A
License No. CSF-1 dated September 30, 1981 Letter from Nuclear Fuel Services, Inc.,
B opposing application for Amendment NFS Application for Amendment dated C
October 6, 1981 Licensee's Request for Hearing D
Motion for Order Postponing Effectiveness E
of License Amendment Letter to NRC Commissioners dated F
October 13, 1981 Letter to NRC Commissioners G
dated October 19, 1981 Court Memorandum and Order of H
United States District Court for The Western District of New York i
UlitD STATES p
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NUCLEAR ner.Ut ATORY COMMIS!!ON p
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p waswaa,nion. c. c. was APPENDIX A TrR3fFfillOfP?
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2 0 SEP 1981 Ei ~
jJ OCT 2 1981 j
I Docket No. 50-201
.. EL......il.0..l...b u;Ls J
RALPH W. DEUSTER e
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Nuclear Fuel Services, Inc.
t ATTW: Mr. Ralph W. Deuster, President j
6000 Executive Boulevard, Suite 600 Change No. 31 q
Rockville HD 20852 Facility License No. CSF-1 Gentlemen:
I This is an amendment iChange No. 31) to facility License No. CSF-1, together
{
with a copy of a notice, concerning this amendment, which has been submitted
-I for publication in the Federal Register. This ament'.nt is issued in 6
response to the application ffled on August 19, 1981, by the New York State 1
Energy Researth and Developent Authority, joi.ted by the U.S. Department of
-~
Energy.
k in accordance with paragraph C(2) of new Condition 7. of the amended I
4 license, we propose to appropriately amend Indemnity Agreement B-29 as of i
the time of the transfer of the facility to the Department of Energy. We anticipate execution of an amendnent to the indemnity agreement at that time.
g y
l Accordingly,' pursuant to 10 CFR 550.91 new Condition 7. to the license, as l
shown in enclosure 1, is authorized.
l J
l In acting upon'the request for an amendment, we have carefully considered 1
the vieys expressed in your letters of September 11, 1981 and September 25, 1
1981. Uou mv, of como, rapst 3 bring with resr*ct tn t"h !ctir, in t
accordance with Section 189a. of the Atomic Energy Act of 1954, as amended.
i sincerely, p
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Lelanti C. Rouse, Chief I
Advanced Fuel and Spent Fuel Licensing Branch
}
Division of Fuel Cycle and I
Haterial Safety 1
Office of Nucicar Material Safety r
9 and Safeguards j
Enclosures:
1.
New License Condition 7.
0 1-2.
Federal ister Notice
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3.
Safety Eva uation
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cc: Mr. James Larocca, NYSERDA
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- 7..The hfcensees, as their respectlye interests under this license ah, may transfer the facility to the United States Department of En:rgy
('90E*) in accordance with the West Valley Demonstration Project Act-(" Project Act'), Pub. L. No.96-368, subjtet to 'the following conditions:
DOE shall assume exclusive pos:;ession of the facility and shall A.
continue in possession until such time as thedicensees, as their respective interests under this license appear, reacquire the facility.
B.
(1) cemencing.on th.e date of transfer of the facility to DOI, and continuing until DDE surrenders possession thereof:
Neither licensee shall be authorized to possess, use, or e.
operate, or be respansible for maintenance, surveillance, or safeguarding of the facility 'under this license; and to the extent that either licensee retains any right, title, or interest in any property located at the factitty or any interest or responsibility under this license, it is not authorized to take or per::it, and shall not take or permit, any action which in DO~'s judpent say inhibit or prevent DOE fro: taking any action under the Ato: sic Energy Act or the Project Act:
(i) to carry out its activities pursuant to the Project Act; (11) to guard against the loss or diversion of a.ny special nuclear r.aterial located at the facility; (iii) to prevent any use of or disposition of any special nuclear material located at the facility which DDE may determine to be inimical to the cocoon defense and security; or (iv) to protect health or minimize danger to life or property.
b.
Neither licensee shall have further responsibility under l
subparagraph 5 (L) or (C) of this license to develop, raintain, or submit records or reports pertaining to events occurring or conditions prevailing at the facility during the time the facility is in DOE's possession:
(2) Cocraenting en the date of transfer of the facility, the technical specifications referented in subparagraph 5(A) of this license, and the conditions contained in the amendaent H
to this license for special nuclear materfels safeguards, shall be held in abeyance.
1 C.
(1) DOE w,ill contract with a person'or persons to perform services for the benefit of the United States, subject to the direction and 30 SEP13y I'
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supervision of DOE, such centractsal activity to include the conduct of the West Valley De:mnstration Pruject (" Project") and such other services as may be needed in connection with the transferred facility from the tir-e of the transfer and for so long thereafter as such facility is in the possession of DOE, and DOE will enter into agreements of indesnification with such person or-persons in accordance with section 170d. of the Atmic Energy Act.
(2) Effective as of the time of transfer of the facility to D3E, and until DOE surrenders possession of the facility, Indennity Agreement No. B-29 shall be suspended.
50ch suspension shall be evidenced by an imendwnt to said Indee.nity Agree::ent which provides that the agreement shall not include the period of suspension described in the preceding sentence, and that the suspension shall not affect any obilgation of the parties to the. agreement with respect to arty 1
nuclear incident occurring prior to the suspension.
D.
Except as provided in subparagraphs (A), (B), and (C) of this paragraph 7, the responsibilities of the:licenstes under this Q
I ifcense, as their respective interests under this license appear, shall continue in effect, provided that neither licensee is authorized to take or permit, and shall not take or pemit (to the extent it has
~
legal authority to do so) any other person to tde, any action which in DOE's judpent may inhibit or prevent 00E from taking any action underj the Atmic Energy Act or the Project Act:
(1) to carry out its activities pursuant to the Project Act; (2) to guard against the loss or diversion of'any special nuclear caterial located at the facility; (3) to prevent any use of or disposttion of any special nuclear material located at the facility which DDE may 6ctercine to-be inimical to the etason defense and security; or t
to protect health or minimize danger to life or property, (4)
!I E.
The licensees, as their respective interests under this license appear, shall:
(1) reacquire and possess the facility upon co:pletion of the Project, in accordance with such technical specifications and subject to such other provisions as the Conission finds necessary and proper under the Atomic Energy Act and Comission regulations; and (2) sake timely submissions to the Comission, in anticipation of cocpletion of the Project, as cay be required by the Comission to determine such technical specifications and other provisions.
l 30SEp931
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7590-01
..,i f...hM, U.\\'ITED STATE 5 NUCLEAR REGULATORY C0" MISSION
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DOCKET NO. 50-201
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.s WUCLEAR FUEL SERVICES, INC. AND
-:3 NEV YORK STATE EWERGY RESEARCH AND DEVELOPMENT AUTHORITY
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(WESTERN HEW YORK KUCLEAR SERY1CE CENTER)
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b ISSUANCE Of APIND." INT TO
.v; FACILITY LICENSE NO. CSF:1
. :. 7..2 e.-
Nuclear Fuel Services, Inc. and New York State Energy Research and
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De.elo; cent Authority (as successor to the New 1'ork State Ato:ic and Spa:e 34
... [iji Development Authority) hold Provisional Operating License No. CSF-1. The
{q p : i,G'd f,f ~[ h, license, issued under section 104b. of the Atomic Energy Act, authorizes.
operation of a spent nuclear fuel reprocessing and radioactiv'e waste disposal facility at the Western New York Kuclear StrVice Center in West Yelley, New York (the Center).
Under the West Valley Demonstration Pro. ject Act, Pub. t.95-368, (the
~
9 Vest Valley Act), the Department of Energy has been authorized to carry out
~
a high level radioactive waste manageoent dedonstration pro.ieet at the Center for the purpose of demonstrating solidification techniques which can be used for preparing high level liquid radioactive waste for disposal.
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p g ;o w o z.1 '6 T-
.g-On August 19, 1931 the Cornission received an application for acentent 1
of facility License No. CSF-1 to authorize transfer of the facility to the Depart::ent of Energy. As provided by the West Valley Act, the application was
~
sutwitted b'y the New York State Energy Research and Developent Authority, joined by the Department of Energy.
Notice of receipt of the application was published in the FEDERAL REGISTER on Septeeber 2,1981 (46 FR 44110),
In accordance with 10 CFR 52.106, notice is hereby given that the Cornission has today issued an anenchent to License Ra. csF-1 authorizing the co-licensees, as their respective interests under the license appear. to transfer t.
facility to the Departant of Energy in accordance with the West Valley Act.
The Ccmission has determined that the application for the amendsent ecoplies with the requiremnts of the Atcznic Energy Act and the regulations of the Consission (10 CFR Chapter I). The Comission has determined that this AMndment irvalves nol gnificant hazards consideration. Copies of the amendaent to the li' cense t
end the ARC staff's safety evaluation are available for otblic inspection at the Comission's Public Document Roos,1717 H $treet, W.W,, Washington, D.C. and at the Local Public Document Rooms maintained at the Buffalo and Erie County Public U
Library, Lafayette Square, Buffalo, New Yort; and the Town of Concord Public 4
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Library, 23 North Buffalo Street, Springville, New York.
Dated at Silver Spring, Maryland, this.8C dayofIF
+, 1981 FOR THE NUCLEAR REGULATORY COMMISSION
/
o Leland C. Rouse, Chief Advanced Fuel and Spent Fuel Licensing Branch
. Division of Fuel Cycle and Katerial Safety J
)
U.S. NUCLEAR PlGULATSY cwt E
SIEETY EVALUATIDW REPO?.T
~ ~ ~
RELATED TO NENDMEKT NO. 31 TD FACILITY DPEP.ATING lCENSE CSF-1 DIVISION DF FUEL CYCLE MD MATERIAL SAFETY 9
SEPTEMBER 1981 I.
FIND!NG OF NO S!GyIFICMT HAZARDS CONSIDERATIDW Introduction The West Yalley De=anstration Project Act of 1980 (the Ac't), Public Law No.96-363, authorized the Department of Er.ergy to carry out a high-level liquid nuclear waste canage=ent project at the Western New York Nuclear Service Center (the Center) in West Valley, New York. In accordance with Section 2(b)(4)(A) of the Act, the State of New Yort "will make aya11able to the Secretary (of the Department of Energy) the facilities of the Center and the high level radioactive waste at the Center which are necessary fcr
- t. e co=pletion of the project."
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]
In addition, the Department of Energy and the State of New York were mquired
,l
[Sec. 2(b)(4)(D)] to submit an application jointly for a licensing amendsent-
-as soon as possible with the Nuclear Regulatory Co:nission providing for the 4
deconstration'.
On August 14, 1981 the Energy Research and Develop ent Authority (ERDA) of the State of New Yort, joined by the U.S. Department of Energy (DOE), submitted an application for amend =ent of Facility License No. CSF-1 to provide for the West Valley Deconstration Project Act at the Western New York Nuclear Settf ce Center.
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~ Censiderition of Criteria As provided by 10 CFR 5 50.91, the U.S. Nuclear Regulatory Coxiission (the.
Coanission) detemines, before acting thereon, whether a preposed ar.end'ent to a facility license involves a significant hazards consideration.
In r.aking this detemination, it is appropriate to consider whether operation of the facility would (1) involve a significant increase in the probability of consequences of an accident previously evaluated, (2) create the possibility of an accident of a type different frco'any tvaluated previously, or (3) involve a significant reduction in a vargin of safety. If the Cc-rission reaches a negative conclusion on all criteria set forth in (1),(2), and (3) above, the proposed anendant e.ay be considered to involve
' no significant hazards consideraticn.
It shcuid be noted, first, that the proposed a:endsent would authorize transfer of the facility, but not operation of the facility by DOI (which is execpt from licensing). Therefore, there is no need to evaluate the hazards associated with operation during the period when,the facility is in DOE's possession and control. This conclusion is consistent with'the provisions in Section 2(c) of the Act that Comission review with respect l
to the project shall not ini;lude fortcal licensing procedures under the l
Attoic Energy Act.
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3-Each of the three criteria above may first be considered in relation to the period when the facility is in the possession of 00E, During that time, the licensees are not authorized to take any, action under the license.
All activities vill be conducted by 00E.
Since no activities will be taken under the authority gruted by the license, no type of. accident could occur as a result of licensed activities. Therefore, with respect to the period of license suspension during which DDE will be in possession of the facility, all three of the above criteria are cet and the proposed l amendment may be considered to involve no significant hazards consideration.
Upen resu=ption of activities under the license, following ccopletion of the pro.iect by the Department of Energy in conforzance with the Act, the cost important safety-related aspect at the site, the continued care of the liquid high-level waste, will no longer exist. As set forth in the Act in Sec, tion 2(a),
the high-level waste will have been solidified in containers suitable for pemanent disposal and transported to a Federal repository for perr.anent disposal. At least parts of the facility will have been decontaminated and decccraissioned by the Departt.ent of Energy.
.Again censidering the criteria stated above, (1) there will be a decrease in the probability or consequences of the accidents previously evaluated (there will be no possibility for an accident involving liquid high-level waste), (2) there will be no possibility of creating a type of accident different from those presently evaluated because the project facilities will have been decontaminated and deccenisskoned, and (M the margins of safety would have been increased, rather than reduced, since the liquid high-level waste would no longer require canagement.
,e.*
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- I 1
Therefore, upon resumption of the license the three criteria are met and the proposed eenL5ent say be considered to involve no significant hazards consideration.
The staff also. has considered Paragraph 7.E.(2) of the license amencbent, which states that 'the licensees, as their respe:tive interests under this license appear, shall...
'i2) make timely submissions to the Ctecission, in anticipati. a of the completion of the prcject, as may be required by the comission to deter =ine such technical specifications and their provisions."
Ey this provision the staff has assured that prior t'o the reacquisition of the site all safety concerns will have been considered and properly evaluated for the protection of the health and safety of the public.
Conclusions Based on the above discussion, the staff has concluded that the issuance of kaend.>ent No. 31 to Facility License No. CSF-1 involves no significant t
hazards consideration.
II. FORTHER FINDING 5 In.accordance with 10 CFR 550.91, the staff further concludes that
]
the issuance of the license amencbent will not be inimical to the cocmon j
~
i defense and security or to the health and safety of the public.
In arriving l
at this conclusion, the staff has taken into consideration, in addition to the evaluation above, the ifcense cenhent provision which expressly
.'i 1
constrains the Itcensee from taking any actions which in DOE's judgment may e
inhibit or prevent DDE. from discharging safety and security responsibility.
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.. In acccrdance with 10 CFR ! 51.5(d)(4), no environ: ental report, environ-ental impact appraisal or assesscent, negative declaration or finding of 1
no signficant impact or enviro cental impact statement is required with respect to the issuance of the license a::end ent.
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O,. -
APPENDIX B
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Nuclear Fuel Services, Inc. 6000 Executive Boulevard, Suite 600, Rockville, Maryland
- 20B52 b e-up[j" J A Subsidiary of Geuy Oil Company (3017770 5510 Rafph W. Deuster PREUDtN1 Septemebr 11,1981 Richard E. Cunningham, Director Division of Fuel Cycle and Material Safety Office of Nuclear Material Safety and Safeguards United States Nuclear Regulatory Commission Washington, D. C. 20555
Dear Mr. Cunningham:
In response to your letter of August 26, 1981, I must advise you that Nuclear 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 approval 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 a!!ow NRC properly to insure public health and safety during the West Valley Dernonstration Project (Project) and af ter Project completion.
The proposed amendment leaves NFS subject to unknown and unspecified l
obligations under the terms of its license.
NFS, as the licensed operator, is responsible for insuring that NRC regulations,,cotecting health and safety are l
observed.
While the amendment would turn over exclusive possession of the f acility and premises to DOE, it would not reliese NFS of its health and safety responsibilities 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.
l Furthermore, the proposed amendment provides no protection to NFS for the consequences of DOE's Project activities. The amendment would expose NFS to unknown legal responsibilities and obligations if DOE modifies the facilities, if it p (' b O P-g p12I@U
Nue'e.97 Fuel Services, Inc.
Richard E. Cunningham September II,19F.1 Page Two causes damage or destruction for which NFS may be respor,sible to ERDA or third parties, or if it creates a different nsclear waste problem for which NFS may be made responsible to eliminate af ter DOE departs.
The relationship between DOE and NFS, which would exist under the proposed 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 compietion. The proposed amendment, paragraphs 7.B(1)a and 7.C, suggests potential interest or responsibility of NFS under the license, but permits no action to fulfill those responsibilities unless DOE approves. This leaves NFS in the enacceptable position of having continuing responsibility under the NRC license without any authority to carry out that responsibility.
ERDA apparently desires NFS to surrender possession of the West Valley U) to DOE in order to implement the Project. However,if NFS did transfer its site interests to DOE, NFS not only would be unable ti> fuifill its responsibilities under the license but also would breach the.erms of its agreements with ERDA.
Under the terms of the Lease and Waste Storage Agreement between NFS and ERDA, NFS is ob!qated to surrender possession of the West Valley site only to ERDA. If NFS were to surrender the site to DOE without prior acceptance by ERDA, NFS would violate the terms of the agreement and materially and adversely affect its contractual rights, which are the subject of lawsuits initiated by NFS and ERDA. Consequently, NFS has advised ERDA that NFS will not consent to Dsc i
possession anf control of the site unless a7d until ERDA has executed the proper written acceptance of the site or the question has been resolved in legal i
proceedings.
i l
(1) The term " site" as used in inis letter includes the premises, facilities and waste.
1
o Nuclear FueJ dervices, Inc.
Richard E. Cunningham September 11,1981 Page Three The complete termination of NFS' NRC license would have no effect on ERDA's contractual rights. In fact, NFS has informed ERDA that, if desired, NFS is prepared to stipulate that the complete termination of NFS' license would not prejudice or constitute a waiver of any claim against NFS for failure to comply with the terms of the Lease and Waste Storage Agreement.
ERDA is refusing to accept site turnover from NFS or to agree to the termination of NFS' license.
Regardless of the dubious propriety of ERDA's position, it hardly justifies the unprecedented temporary suspension of NFS' operating license. By granting such a suspension, NRC would be supporting ERDA's intransigence and create a confusing situation involving unspecified and divided responsibility.
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, however, will be &:chnically unable to do so, even assuming that it now has any residual interest.
P
{
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 NFS 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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Nuclear Fuel Services, Inc.
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 DO?. 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, anu to terminate NFS' license. The NRC approval could be contingent upon ERDA immediately transferring all of its interests to DOE for the duration of the Project. There may be other methods of transfer, which the parties may wish to consider, but whatever method is chnsen, 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,
=
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4 Ralph W. Deuster President RWD:jnw cc: Jarnes L. Larocca, Chairman New York State ERDA Warren E. Bergholz, Jr., Esquire Office of the General Counsel, DOE Orris S. Hiestand, Esquire Morgan, Lewis ac Bockius L
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Nuclear Fuel Services, Inc. 6000 Executive Boulevard, Suite 600, Rockville, Maryland a 20852
(
A Subsidiary of Getty Oil Company
'301 770 5510 APPENDIX C Ralph W. Deuster October 6, 1981
= t s.oc o Mr. John G. Davis Director Office of Nuclear Material Safety and Safeguards U. S. N rlea_ Regulatory Corrission Washington, D. C. 20555
Dear Mr. Davis:
With this letter, Nuclear Fuel services, Inc. (NTS) sub:rits to the Com-mission an application for amend ent of License No. CSF-1. 'Ihis anendrent, in conjunction with Amend ent 31 issued on Septe ber 30, 1981, is required in order that the Department of Energy (ECE) and the NEw York State Energy Resear6 and Develoirent Au*hority (NYERDA) may carry out the conditions of Sectic n 2'b) (4) (A) of the West Valley Denonstration Project Act, Pub. L.96-368 (1980).
'L5u.s amend:ent terminates all rights and responsibilities of NES under Licerse No. CSF-1 and transfers to NYERDA all residual rights hnd responsi-bilities of the licensees upon cxrpletion of the West Valley Demonstration Project. All other information required by the Ccmrission for amendment of an operating licerse is contained in the previous sub:rissions of the licensees under Docket No. 50-201.
'Ihe requested amendment which adds a Paragraph 8 to the license, is as follcws:
I 8.
tbtwithstanding any other provisions of this license, all rights and responsibilities of the licensee, Nuclear Fuel Services, Inc. (NFS), unde r License No. CSF-1 are terminated upon DOE assu: ring exclusive possession and control of the facility. Upon DOE's assucption of exclusive possession and control of the facility as provided in Paragraph 7 above, all refences to
' licensee', ' licensees', ' licensees under this license, as their respective l
interests under this license amear', or ' licensees, as their respective interests under this license appear', shall thereafter refer er lusively to l
the New York State Energy Research and Develotment Authority.
l l
I uncbrstand that NYERDA is prepared to join in this application in con-nection with a settlement between NFS and NYERDA of their mtractual disputes, provided that any such concurrence by NYERDA may be withdI A 1, without prejudice, l
i g(,; P 6 0 ~
M Sc noo33
Nuclear Fuel Services, Inc. Octooer 6,1981 in the event no settlerr't is reached, and provided further that the amerb nent is issued sinultaneously with the signing of the settlenent agreement.
If any additional inforration is required, please let ne knw.
Sincerely, U
Y^'e $
aalph w. Deuster President i
1 1
]
APPENDIX D DMICATE ORIGINAL UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIONERS
~
)
In the Matter of
)
)
NUCLEAR FUEL SERVICES, INC.
)
)
and
)
Docket No. 50-201
)
Provisional Operating NEW YORK STATE E CY RESEARCH )
License No. CSF-1
)
AND DEVELOPMENT AUTHORITY
)
(Western New York Nuclear
)
Service Center)
)
)
LICENSEE'S REQUEST FOR HEARING to Section 189(a) of the Atomic Energy Act of 1954 Pursuant (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 Nuclear Fuel Services is co-holder with NYERDA of 1.
Provisional Operating License No. CSF-1, issued by the Atomic Energy Commission to NFS and the New York State Atomic and z)uf h U 1\\tol9)(f?
}
i 'j l
space Development Authority (the predecessor in interest 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 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 assumed all rights and responsibilities of ASDA under the license.
On October 1, 1980, the West Valley Demonstration 2.
Project Act, Pub. L.96-368 ("Act") was enacted.
The purpose of the Act was to authorize DOE to carry out a high-level demonstration project at the liquid nuclear waste management West Valley facility.
The Act, Section 2(b)(4)sA), provides
"(t)he State (of New York) will make available to the that the facilities of the Center and the high Secretary (of DOE) the Center, which are necessary for level radioactive waste at completion of the project."
On October 1, 1980, NYERDA and l
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 NRC advised NFS of the proposed amend-demonstration project.
- =
(
f :
i i
f ment by letter on August 26, 1981 and requested NFS' position.
1 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.
B.
INTEREST OF THE L,ICENSEE 5.
Pursuant to Section 189(a) of the _tomic 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 Consission shall grant f
a hearing upon request 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
[
. 1 rights under Section 189(a) of the Atomic Energy Act."
Fublic Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438, 439 (1980).
Thc two-pronged test for standing requires that a person must allege an interest " 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 definabic rights and responsi-bilities under the license and the Act which are obviously affected by eny action of the agency which modifies those rights and responsibilities.
I 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 heelth, safety, or interest.
In this case, the NRC staff made no such finding before the issuance of the amendment.
Indeed, the 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-!<FS should transfer its license rights to the Department of Energy, it cannot rely upon the amendment without considerable risk.
If the Commission is s
3
---m-y
e 1 e
f later proven to be without the necessary authority to issue such an amendment or that the amendment violates the Act, NFS f
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 It must be emphasized that the determination of NFS' rights ones.
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.
10.
This dilemma has in similar cases led the Supreme 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, l
ri NRC 1, 4-5 (1977).
There is a need to clear the air concerning l
l the preposed amendment.
The inevitable prospect of adverse con-sequences to NFS establishes an ample basis for declaratory relief at the earl,iest possible time.
In short, NFS l
will incur injury in fact and it is entitled to a declara-l tion of its rights and responsibilities under the license.
l
i
. f 1
I C.
ISSUES FOR HEARING NFS alleges the following matters of fact and law each and requests the opportunity for hearing to contest of these matters:
11.
The tr ansfer 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...".
(Emphasis added.)
By definition, DOE cannot have exclusive responsibility for health and safety matters, while NFS There-simultaneously retains responsibilities as a licensee.
to the extent that it attempts to effectuate DOE's exempt
- fore, the amendment violates the applicable NRC regulation.
- status,
~
t
. i l
1 12.
The transfer violates the Atomic Energy 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. $5841(f), transfers "all the licensing and related 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.
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 action 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.
TLe amendment will result in NRC's abrogation of its regulatory authority over its licensee to another agency in violation of the Energy Reorganization Act.
9-13.
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" will not inhibit DOE's actions.
Thus, compliance by NFS depends upon foreknowledge of DOE's judgment - an impossibly vague standard.
DOE's unbridled discretion with regard to any action by NFS under License No. CSF-1, coupled with NFS' residual responsibilities under the license, places NFS in the doubly confounding position of bcing 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, NRC cannot be excused from that obligation.
Although NRC requires, as a condition of transfer to DOE, that DOE enter into agreements of indemnification wich its contractor, it is not clear that such DOE agreements would provide indemnity protection to NFS.
The standard DOE indemnity agreement
0 7
I expressly excludes " liability arising out of, or in con-f 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
" licensed facility".
NFS faces a potential gap in coverage.
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 cnd 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 Secretary the facilities of the Center and the high level radiocctive waste at the Center which are l
necessary for the completion of the project."
Since NYERDA and NFS are joint holders of the lit e, the only way fer the State, through NYERDA, to transfer the facilities is for NYERDA to first accept surrendar of NFS' rights as licensee.
If NYERDA is unable to transfer all rights to operate the facility, then l
the conditions set by the Demonstration Project Act cannot be ret.
In that case, neither of the parties to the project agree-l
- DOE or NYERDA - has the authority to make such a transfer, ment 1
i
7 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.
Respo.ctfully Submitted,
/
)~s
., x - a ~
.1 Orris S. Hiestand Attorney for Nuclear Fuel Services, Inc.
October 13, 1981 l
l l
l l
l l
l l
l 1
UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION
)
In the Matter of
)
)
l NUCLEAR FUEL SERVICES, INC.
)
)
and
)
Docket No. 50-201
)
Provisional Operating NEW YORK STATE ENERGY RESEARCH
)
License No. CSF-1 AND DEVELOPMENT AUTHORITY
)
(Western New York Nuclear
)
Service Center)
)
)
AFFIDAVIT OF RALPH W. DEUSTER I.
I, Ralph W. Deuster, am president of Nuclear Fuel Services, Inc., with a business address of 6000 Execu-tive Boulevard, Suite 600, Rockville, Maryland, 20852.
2.
I am daly 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 sF District of Columbia :
Sworn to and subscribed before me this 7 ct, day 1
of G eCa
, 1981.
wn _ s e}.,L t -
- -o f
Notary Public My Comm!alon Expires June 14,1933 l
L UNITED STATES OF AMERICA NUCLEAR RECULATORY COMMISSION In the Mat'er of
)
t
)
Docket No. 50-201 NUCLEAR FUEL SERVICES, Inc.
)
Provisional Operating
)
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 Uashir:gton, D.C.
20555 Washington, D.C.
20555 Leonard Beckuit, Jr., Esq.
Thomas M. Roberts, Commissioner General Counsel U.S. Nuclear Regulatory U.S. Nucler.r Regulatory Commission Commiss.on Washington, D.C.
20555 4
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 I
Washington, D.C.
20587 Commission Washington, D.C.
2'J555 l
L.
..I Docket $ng 6 Serv'ce Section Samuel J. Chilk Office of the Secretary Secretary of the Commission U.S.
r:uclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 (original 'and three copies)
>-w _ _l 0.
S.' Hiestand Attozney for Nuclear Fuel Services, Inc.
2 Dated: October 13, 1981 l
l l
APPENDIX E DllPLICATE ORIG!NAL UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIONERS In the Matter of
)
)
NUCLEAR FUEL SERVICES, INC.
)
)
and
)
Docket No. 50-201
)
Provisional Operating NEW YORK STATE ENERGY RESEARCH
)
License No. CSF-1 AND DEVELOPMENT AUTHORITY
)
(Western New York Nuclear
)
Service Center)
)
)
MOTION FOR ORDER POSTPONING THE EFFECTIVENESS OF LICENSE AMENDMENT Nuclear Fuel Services, Inc., (NFS), co-holdet-with the New York State Energy Research and Development Authorits (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.L 5 2.204.
In support of this motion, NFS states the following.
A.
BACKGROUND 1.
Nuclear Fuel Services is co-holder with NYERDA of Provisional Operating License No. CSF-1, issued bJ the Atomic Energy Commission to NFS and the New York State Atomic and f
Quf? O qnoisorz3
o Space Development Authority (the predecessor in interest 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 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 assumed all rights and responsibilities of ASDA under the license.
2.
On October 1, 1980, the West Valley Demonstration Proj ect Act, Pub. L.96-368 ("Act") was enacted.
The purpose of the Act was to authorize DOE r 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 an application to the Nuclear Regulatory Commission (NRC) for an amendment 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 proposed amend-u
. ment by letter on August 26, 1981 and requested NFS' position.
NFS res.ponded 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.
NFS has today filed a request for a hearing in con-nection with this amendment.
B.
RIGHT TO PRIOR HEARING 5.
10 C.F.R. 5 2.204 states:
The Commission may modify a license by issuing an amendment on notice to the licensee that he may demand p hearing with respect to all or any Fart 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 hearing.
When the Commission finds that the public health, 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
4 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 compel exercise of NRC's summary authority to protect the public's
- /
In this case, the NRC staff health, safety, or interest.
made no such finding before the issuance of the amendment.
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 en operating license upon determination by the Commission that the amendment involves
- /
Consumers Power Company '(Midland Plant, Units 1 and 2),
- / A federal agency must adhere to its own regulations, and Accardi v.
its failure to do so is a violation of due process.
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) l
5-
"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 hcaring 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 make it immediately effective flies in the face of the plain language of 10 C.F.R. 5 2.204.
8.
NFS has today filed a Request fer dearing in connection j
with the amendment to its license.
For the foregoing ceasons, 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 i
the conclusion of hearings.
Respectfully submitted, 1
h, n,--
d Or s 8. Hiestand Attorney for Nuclear Fuel Services, Inc.
October 13, 1981
- /
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.W. 3882 (May 26, 1981).
i l
1
..... ~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
Docket No. 50-201 UUCLEAR FUEL SERVICES, Inc.
)
Provisional Operating
)
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 Wa shing'.on, 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.
l General Counsel Richard E. Cunningham, III New York State Energy Research I
Director, Division of Fuel Cycle and Defelopment Authority and Material Safety U.S. Nuclear Regulatory Two Rockefeller Plaza Albany, New York 7'223 Commission Washington, D.C.
20555 Guy H. Cunningham, III, Esq.
Warren E. Bergholz, Jr., Esq.
Director and Chief Counsel l
l Office of General Counsel Office the Executive Legal l
Director l
U.S. Department of Energy U.S. Nuclear Regulatcry 1000 Independence Avenue, S.W.
l Washington, D.C.
20587 Commiss#.in Washington, D.C.
20555 i
l I
L
Docketing 6 Service Section Samuel J. Chilk Office of the Secretary Secretary of the Commission
?J. S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commissi?n Washington, D.C.
20555 Washington, D.C.
20555 (original and three copies) l [
~-
1
- 0. S Hiestand Atto ey for Nuclear Fuel Services, Inc.
Dated: October 13, 1981 1
_~9-
w APPENDIX F 6
M O RG AN. L EWIS E. BO CKlU S Couwsttons At L Los AsocLes g
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,=
N r w Y::,R,
m m., u, oas was aiw ot ou, o.c. 2 o o s o l
Pangs It6E#aDet:42025 872 + SOCO October 13, 1981 The Honorable Nunzio J. 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 The Honorable Thomas M. Roberts Commissioner Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission
-((jr Washington, D.C.
20555 Washington, D.C.
205 em The Hcnorable Victor Gilinsky s3r yg c '~. < r.
e Commissioner
,y.
o U.S. Nuclear Regulatory 27
$, gg y j 9
Commission T.
73 \\
e i~
Washington, D.C.
20355 g'
9 Qc. s *%lr ze
- i:'{
4'.
s Y
Dear Cornissioners :
~'
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 h'.gh-level liquid waste management demonstration project.
The amend-ment in question would allow NFS ani 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, C
bud' E 6 E 11015% 79
MORGAN,l EWIS & BOCKlUS Conmissioners October 13, 1981 Page Two The amendment in question was issued by the NRC Staff on. September 30, 1981, and made immediately rffective by the NRC Staff on the basis of a "no significant hazards" finding.
10 C.F.R. 5 2.204 imposes a mandatory, non-discretionary duty upon the Commission to grant the oppor-tunity for hearing to a licensee on any amwriment which modifies its license, and to postpone the effectiveness of any such amendment pending. completion of any such hearings 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, 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 F2 fore 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 Proj ect Act.
However, if the District Court orders NFS to effectuate the transfer to DDE, 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 be illegal.
Moreover, NFS must confron.t this dilemma with-out having the prior hearing on the license amendment which is guaranteed by 10 C.F.R.
$ 2.204.
Once the transfer is effectuated, the amendment has an ir. mediate effect, and NFS will have forever lost its ri ht to a prior hearing.
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Commissioners f.
October 13, 1981 Page Three There is only one set of 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. facility.
If the Commission were to i ssue that amendment, NFS could withdraw both its Motion for Postponement of Eft'ectiveness and its Request for Hearing.
Because of the immediacy of its dilemma, NFS must request 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 irretreivably denied NFS its right 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,
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l Atto'rney for Nuclear Fuel Services, Inc.
cc:
Service List
APPENDIX G M O RGAN, LEWlO Tk OOCKlUO C o W N S iL o m s AT i. AW LOS ANGELES PNigAscgew 4 N tw Ya m a I s o c M Sta r tT, N.W.
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,,,g, Taw o.isuaoa erasooo October 19, 1981 G2cnct L. EcoAm C.% Dioece sacas 47s sias The Honorable Nunzio J. Palladino The Honorable John F. Ahearne Chairnan Comissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Comission Washington, D.C.
20555 Washington, D.C.
20555 The Honorable Peter Bradford The Honorable Thomas M. Roberts Commissioner Comis sioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Comission Washington, D.C.
20555 Washington, D.C.
20555 1
The Honorable Victor Gilinsky Comissioner U.S. Nuclear Regulatory Comis sion Washington, D.C.
20555
Dear Commissioners:
On October 13, 1981, Nuclear Fuel Services, Inc., ("NFS")
filed a Request for Hearing and a Motion for an Order Postponing the Effectiveness of Amendment (Change 3'. to License CSF-1) until a hearing on the amendment was concluded as required by 1.0 C.F.R. 5 2.204.
In requesting postponement, NFS also advised the Commission that due to ongoing litigation in the United States for the Western District of New York, it was impera-Court District the Commission act on the Request and Motion as expedi-tive that tiously as possible.
On October 16, 1981, the District Court in New York issued an Order (copy attached) requiring NFS to transfer the Western New York Nuclear Service Center to the Department of The Court Order Energy as permitted by the proposed amendment.
takes effect at midnight, October 19, 1981.
If NFS is required to transfer the facility and vacate the Center, NFS will have irretrievably lost its right to a prior hearing as specifically provided in 10 C.F.R. 5 2.204.
NFS therefore requests that the Ccumission immediately act on NFS's Motion to Postpone the Effectiveness of the License Amendment and stay the effective:ess of that amendment until a hearing is concluded pursuant to 10 C.F.R. 5 2.204 Alternatively, NFS would agree to a stay for a shorter period of time during which the Commission further reviews NFS's Request for Hearing.
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MORGAN, Lewis & Cocasua U.S. Nuclear Regulatory Commission October 19, 1981 Page Two Due to +e urgency of this matter, and in light of the effective da e of the District Court Order, NFS respectfully requests that the Commission issue an order postponing or staying the effectiveness of the license amendment no later than 4: 30 p.m.,
October 19, 1981.
If no order is issued by that time, NFS will be forced, however reluctantly, to seek the assistance of the federal courts.
For your convenience, we have prepared a proposed order for the NRC's consideration postponing the effectiveness of the license amendment for : two week period.
Should the Commission issue such an crder or decida not to issue such an order, we would appreciate being notified as soon as possible.
The undersigned can be reached by telephone at (202) 872-5121.
Respectfally submitted,
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George
. Edgar Attorney for Nuclear Fuel Services, Inc.
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APPENDIX H UNITED STATES DISTRICT COURT WFSTERN DISTRICT OF NEW YORK NEW YORK STATE ENERGY RESEARCH CIV-81-18E AND DEVELOPMENT AUTHORITY, Plaintiff, MEMORANDUM
-vs-and EUCLEAR FUEL SERVICES, INC.;
GETTY OIL COMPANY, ORDER Defendants Plaintiff New York State Energy Research and Devel-opment Authority ("NYSERDA") has moved for partial summary judgment requiring defendant Nuclear Fuel Services, Inc.
' ( "liF S " ) to vacate the site of the Western New York Nuclear Service Center ("the Center"), which NYSERDA owns, and to turn the same over to the possession of the United States 1
Department of Energy ("the DOE").
1 Under the West Valley Demonstration Project Act
("the Project Act"), Pub.L.96-368, 94 Stat. 1347 (1050),
the DOE is authorized to carry out a high-level liq id nuclear waste management demonstration project at the Center.
The public need for the Project Act is defined in H. R. Rep. No. 1100, Part 2, 92d Cong., 2d Sess. 13-14 (1980), which cites the Nuclear Regulatory Commission's determination that, because cf the danger of leakagt, storage of liquid high-level nuclear wastes in tanks pre-sents a hazard to the public health and safety.
Accord-ingly, the Proje'et Act, in section 2(a) thereof, directs the Secretary of Energy, among other things, to solidify these wastes at the Center and tt develop containers suitable for permanent disposal of the solidified wastes.
Section 2(b)(4) of the Project Act directs the Secretary to enter into a cooperative agreem'ent with New York State under which the State will n.ake the relevant portions of the Center available to the Secretary for the accomplish-ment of the purposes of the Project Act.
Such a Coopera-tive Agreement has been executed between the DOE and NYSERDA, and the DOE stands ready to take over the Center from NFS. Plaintiff's Notice of Motion for Partial Sum-g g of.
mary Judgment, Affidavit of Carmine J. Clemente.
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. NYSERDA's Complaint in this diversity-jurisdiction action states 32 "causes of action" against NFS, alleging various breaches and defaults of NFS under the parties' Lease anE Waste Storage Agreements relating to NFS's pos-session and use of the Center, and requests monetary dam-ages, declaratory and injunctive relief, and states also a general request B* specific performance of the agreements and the usual request for "other, further and different relief as may b' just and proper" (Complaint, p.52).
Al-2, though defendants have objected that the instant motion does not seek a judgment as to any of plaintiff's 32 specific "causes of action," there is no reason not to consider the relief requested as within the latter-mentioned two prayers for relief.
Defendants' objections as to the asserted inconsistency of the instant request for relief and plain-riff's other requests for relief are, of course, untenable under Fed.R.Civ.P. rule 8 (a) which permits demands for alternative and i.nconsistent forms of relief.
The gravamen of NYSERDA's motion is that NFS has no right to resist NYSERDA's demand that NFS turn the Center l
Defendant G try 011 Company ("Getty"), full owner l
of NFS, was not moved against in the instant motion be-cause, plaintiff says, Getty is not in possession of the Center. Nonetheless, Getty, arguing that it is a proper party to this motion inasmuch as plaintiff's Co= plaint seeks to hold Getty jointly and severally liable for NFS's obligations, submitted a memorandum and presented arguments orally at the hearing of this matter.
Plaintiff has appar-l ently acquiesced in Getty's presentations which, in any case, do not differ materially from those of NT3.
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. over to the DOE, NYSERDA having terminated NFS's Lease,
effective Decamber 30, 19 'O due to NFS 's alleged breaches and default.
minder, and alternatively because the Lease terminated a rding to its terms on December 31, 1980 and was not renewed.
Defendants object (1) that there are material issues of fact as to whether UFS was in default under the Lease so as to justify NYSERDA's affirmative termination of the Lease, precluding summary judgment; (2) that the Lease and Waste Storage Agreements' require NFS to surrender the Center only to NYSERDA, so that there is lacking a legal basis for plaintiff's requested relief; (3) that compelling NFS to 3
surrender the relevant part of the Center to the DOE would 3
Not involved in the present motion is that portion of the Center wherein are buried low-level nuclear wastes, which is not sffected by the Project Act and which is operated pur-suant to state, not federal, licenses.
Defends.ts' contention that nothing in the Lease authorizes NFS to turn over the rest of the Center while retaining the low-level waste storag'e area has little merit.
NFS is presently prevented from abandoning the low-le vel f acility by a summary abatement order of the New York State Department of Environmental Conservatien.
To propose that this legal stricture, while it exists, gives NFS the rftht to retain possession of the ent!.re Center is absurd.
Nor is a different result required by se. tion 6.04(c)(iv) of the Waste Storage Agreement, which provides that NFS will sur-render the low-level facilities to NYSERDI on the effective date of a surrender of the high-level facilities pursuant te Article 3 of the Waste Storage Agreement.
Leaving aside the question of whe her UFS's turning over the high-level area to DOE actually cor.stitutes a surrent.sr under Article 3, which is the subject of a pending motion it. a companion act..on (CIV-81-683) and is not determined on this motion, the pro-vision in section 6.04(c)(iv) is clearly annulled by the sum-mary ab tement order and by section 12.05 of the Waste Stor-age Agreement, requiring NFS's compliance with all legal requirements.
Section 13.01 of the Waste Storage Agreement makes separable any provisions of the agreement to the ex -
tent that they shall be unenforceable, as section 6.04(c)(;v) is in view of the summary abatement order.
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prevent NFS from obtaining specific performance of the sur-render and acceptance clauses of the Lease and Waste Storage Agreements for the period of the DOE's occupancy (variously estimated at between 10 and 20 years); (4) that, if NFS has further obligations and liabilities respecting the Center as contended by NYSERDA in this litigation, NFS is entitled to a present determination of their nature and extent and an opportunity to satisfy them; and (4 that the September 30, 1981 amendment to the Nuclear Regulatory Commission ("the NRC") license, permitting NFS and NYSERDA to transfer the Center to the DOE, is invalid and NFS cannot for that reason 4
e act thereon.
1 The first of these objections is well-taken but has no effect on plaintiff's contention that the lease period has terminated.
Defendants do not deny that the Lease termi-natef by its own terms December 31, 1980 and was not renewed.
Consecuently, NYSERDA as owner of the. enter. clearly has a present right as a matter of state property law to direct its disposition, absent countervailing legal requirements.
Liberty Ind. Park Corp. v. Protective Pka. Corp., 71 Misc.2d i
116, 335 NYS2d 333 (Kings Co. 1972), aff'd, AD?d 351 NYS2d 944 (2d Dep't 1974).
One apparent limitation on this right is that pursuant to the NRC license, under which NYSERDA and NFS are co-licensees, NYSERDA is authorized only to own and let out the Center for nuclear waste facility 3
. purposes, and not to actually possess the Center.
This by itself does not prevent NYSERDA from passing its inherent possessory interest directly from NFS into the hands of the DOE.
Defendants urge, however, that the provisions of the Lease and Waste Storage Agreements do prevent such an ex-change of possession of the Center.
Section 26.01 of the Lease provides that "[1]essee, upon any expiration or earlier termination of this Lease, will peaceably vacate, yield up and surrender to the Authority the Leased Premises."
(Emphasis added.)
Section 3.04 of the Waste Storage Agree-ment provides that:
"[U]pon any cancellation or termination of the Lease, *** NFS will surrender, and the Authority will assume, full responsibility for perpetual operation, surveillance, main-tenance, replacement and insurance of the then existing High Level Storage Facilities provided that such surrender and assumption shall not be or become eficctive until such time as all licenses, permits, consents and approvals of (the NRC) and all other govern-mental instrumentalities having jurisdiction required in connection with such surrender and assumption of responsibility shall have been obtained.
Such assumption of respon-sibility by the Authority, the primary pur-cose of which will be to provide adecuately i
for the protection of the health and safety of the puolic, shalf not relieve NFS of its 6Eligation to pay ***."
(Emphasis added.)
on defendants' view of these provis' ions, they create a right in NFS to have NYSERDA and only NYSERDA take physical possession of the Center from NFS upon termination of the
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. Lease.
There can be no question that the plain language of these provisions recognizes NYSERDA's right to receive physical possession from NFS, Except for the bare language of these provisions, defendants have indicated nothing in either the words or underlying intention of che parties' agreements which invites the conclusion that this possessory right of NYSERDA cannot be exercised by directing that possession be passed to another entity otherwise legally authorized to physically possess the Center, srch as the DOE.
The question of the " responsibility for perpetual' opera-tien," etc., of the Center, which is the focus of section 3.04 of the Waste Storage Agreement, is not in issue on the present motion.
In any case, NFS's interest as protected by section 3.04 cannot reasonably be construed as having only NYSERDA assume responsibility.
It is more reasonable to conclude that NFS's interest is in passing responsibility from itse'1f to some other entity.
Without adjudicating the issue of the locus of responsibility, it is to be noted that by section 3.02 (b) (ii) of the Cooperative Agreement between NYSERDA and the DOE, the latter assumes responsibility for protecting thn publ1c health and safety in regard to the project premises for the duration of the project.
No reason has been suggested why NYSERDA, having obtained the necessary governmental permission, cannot delegate its responsibility to this extent.
A decision whether NFS retains residual
1 1
7-4 responsibilities or wil), upon completion of the project, reassume responsibility as the word is used.in section 3.04 of the Waste Storage. Agreement is not required at this time, l
the issue *of right to physical possession being entirely severable from responsibility issues.
Any possible argument that the parties intended that the language of section 26.01 of the Lease create an un-I assignable or non-transferable right in NYSERDA to take physical possession of the premises is greatly undermined by section 31.01 of the Lease, which empowers NYSERDA *at any
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time" and without NFS's consent to " convey or otherwise 1
l d'ispose of [the Center) to any government or political subdivision thereof or to any governmental agency, authority or other instrumentfJity or to any other public body," such I
transferee thereafter to be the substituted lessor, "with the same force and effect as the Authority."
This preserva-tion of NYSERDA's right of alienation suggests that the parties intended that as much as possible within the con-l straints of governmental regulation and consistent with i
considerations of the public health and safety, ordinary principles of property law would govern their relationship.
I It is clear that under common law principles a proprietor ordinarily hr.s the right to direct a tenant whose lease has i
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expired to surrender his or her property to whomever the proprietor may choose to appoint and, if it is impossible to peaceably effect such a transfer, to vindicate that right in l
8-the courts.
See, Liberty Ind. Park v. Protective Pkg. Corp.,
suora.
l Therefore it must be concluded that the words of Lease section 26.01 -
"[1)essee *** will *** surrender to the Authority" -- were not intended to bind the parties by their precise terms.
The obvious purposes of scetion 26.01 are to (1) place constraints upon NFS as to the condition that the premises must be in for a valid surrender to be made and (2) guarantee to NFS that it would not be forever responsible for the ha::ardous wastes at the Center by giving NFS a right to require NYSERDA to resume possession when a proper sur-render is made.
These purposes.do not conflict with and hence do not abrogate NYSERDA's common law right to pos-session and to direc,t the transfer of the premises to the DOE.
NFS complains, however, that if the requested order is granted NFS will be injured and prejudiced by being unable for the period'of DOE's occupancy to correct. alleged defi-ciencies in the premises so as to make a valid surrender to 4
NYSERDA and be relieved of its affirmative duties under the Lease sn3 Waste Storage Agreements.
NFS has cited no auth-ority for the proposition that a tenant has a right to hold over until it cures defaults under its lease agreement, and 4
NFS has offered to agree to NYSERDA's acceptance of the subject premises.with a reservation of any claims for mone-tary damages against NFS. While NYSERDA's rejectiot, of this offer in favor of the continuance of NFS's contractual com-mitment to surrender all facilities in good order may seem inflexible, NYSERDA's legal proprietary right.4 are not affected thereby.
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the law of New York is*apparently to the contrary.
- See, First Nat. Stores v. Yellowstone Shop. Ctr., 21 N.Y.2d 630, 637-38, 290 NYS2d 723, 725 (1968) (courts may not grant lessee a. grace period in which to cure default under lease).
Defendants have not established that the survival of NFS's af firmative duties under the Lease for 10 - 20 years was so far beyond the contemplation of the parties at the making of the Lease that it should not be countenanced, and in any case the question is not squarely presented at this time.
Lne only question here is as to NYSERDA's right to assert its possessory interest in the manner chosen, against which NFS's interest in being clear of affirmative duties cannot prevail.
Similarly, NFS,has not established that it has a legal right to a present determination of its duties under the Lease, and an opportunity to perform them.
Finally, although this court may be required to defer to the primary jurisdiction of the NRC and the Unitsd States Court of Appeals where the validity of a regulation of the NRC is challenged and is directly in issue, the validity of such regulat2ons must in other cases be presumed.
Defend-ants point to no authority for the novel proposition that district courts must act as if an administrative regulation is invalid during the pendency of a collateral challenge to l
such regulation, for the probable reason that none exists.
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As it appears that there exist no unresolved issues of fact material to plaintiff's request for partial summary judgment with an accompanying order directing defendant NFS to vacate the portion of the Center subject to the West Valley Demonstration Project Act and to turn.the same over to the Department of Energy, plaintiff's motion for partial summary judgment is hereby ORDERED granted, and defendant Nuclear Fuel Services, Inc. is hereby ORDERED to vacate the subject premises and to yield the same forthwith to the Department of Enercy.
Dated:
Buffalo, N. Y.
i October /
1981 i
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