ML20032B094
| ML20032B094 | |
| Person / Time | |
|---|---|
| Site: | West Valley Demonstration Project |
| Issue date: | 10/30/1981 |
| From: | Edgar G NUCLEAR FUEL SERVICES, INC. |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8111040417 | |
| Download: ML20032B094 (8) | |
Text
,10/30/81 DOCMETED UtXRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 31 00T 30 P456 BEFORE THE COMMISSIONERS OFFICE OF SECRETAF) 00CXETING & EfiVfC{
In the Matter of SRANCH
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NUCLEAR FUEL SERVICES, INC.
Docket No. 50-201 and Provisional Operating License No. CSF-1 NEW YORK STATE ENERGY AUTHORITY
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AND DEVELOPMENT AUTGORITY tO (Western New York Nuclear p
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REPLY OF NUCLEAR FUEL SERVICES, INC.
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TO RESPONSE OF NRC STAFF IN OPPOSITION D g'
10 NFS MOTION FOR ORDER POSTPONING Pf, l s
THE EFFECTIVENESS OF LICENSE AMENDMENT r$
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In opposing the request of Nuclear Fuel Services, Inc. ("NFS") for an order postponing the effectiveness of the proposed amendment (Change No. 31) to its license (License Nc. CSF-1), the Nuclear Regulatory Commission staif rely on two arguments -- (1) that 10 C.F.R. 52.204 is not applicable to the license amendment and (2) even if 10 C.F.R.
$2.204 were applicable, there are adeqaate grounds for a determination that the public interest requires that such an amendment be made effective immediately.
As will be discussed below, both of these arguments are untenable.
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10 C.F.R.
$2.204 Does Apply The reasoning which the NRC staff advances to argue that the clear language of 10 C.F.R. 52.204 does not apply is the same as that presented by the New York State Energy Research and Development Authority's (NYERDA) in its reply of October 15, 1981, i.e.,
that 10 C.F.R. 52.204 does not apply when a joint licensee and a third party apply for a license amendment which significantly modifies the rights and responsibilities of the other joint licensee.
The infirmity of that argument was pointed out in NFS' October 19, 1981 response to NYERDA's reply and need not be stated at length again herein.
The NRC staff's argument flies in the face of the unambiguous language of 10 C.F.R. 52.204:
The Commission may modify a license by issuing an amendment on notice to the licensee that he may demand a hearing with respect to all or any part of the amendment within twenty (20) days from the date of the notice or such longer period as the notice may provide.
The amendment will become effective on the expiration of the period during which the licensee may demand a hearing or, in the event that he demands a hearing, on the date specified in an order made following the hearing.
When the Commission finds that the public health, safety, or interest so requires, the order may be made effective immediately.
Nowhere in that language may be found the meaning which the NRC staff now asserts.
Section 2.204 applies whenever "any person" or the NRC staff seeks to modify a license. 1/
To accept the staff's contention that only Subpart A of Part 2 applies would require the Commission to accept the proposition that if a co-licensee requests a license modification if: may be granted no matter what impace it might have on the other license holder.
As the staff so aptly pointed out "Subpart A.
is concerned with the granting of authority to licensees at their request,"
while Subpart B deals with the imposition of license modifications "upon licensees, which, understandably, they do not request."
(emphasis added).
NRC Staff Response at 3.
This is exactly the situation in this case.
NFS has not requested such a modification.
It therefore should be provided its rights to a prior hearinF 'tnder 10 C.F.R. 52.204 before the amendment takes effect.
l The Public Interest Would Not Be Served By Denying NFS Its Rights The NRC staff contends that to allow
'S its guaranteed right to a prior hearing would be contrary to the public interest because Congress has authorized the
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" Person," as defined by 10 C.F.R. 52.4(o) includes inter alia "any individual, corpcration, firm.
other than the Commission or the Department It does not exclude licensees.
l Department of Energy to carry out the West Valley Demonstration Project and any delay "could prevent implementation of the Congressional mandate."
NRC Staff Response at 4.
The staff, however, fails entitely to support that assertion.
The NRC may act in a summary fashion without awaiting either the expiration of the 20 day period or the conclusion of a yequested 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 or 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 or Transport Strategic Quantities of Special Nuclear Material,(CLI-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 insuf-
ficiency of less drastic measures." Cf. Dean Milk Co. v.
City of Madison, 340 U.S. 349 (1951).
This is hardly the case at West Valley, where NFS is carrying out its duties as licensee in a safe.and efficient manner and will continue to do so for so long as it has that responsibility.
In point of fact, the public interest would be ill-served by the Commission denying one of its licensees a right clearly guaranteed by Commission regulation.
A federal agency must adhere to its own regulations, and its failure to do so is a violation of due process.
Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); Service v. Dulles, 354 U.S. 363 (1967); Kelly v.
Railroad Retirement Board, 625 F.2d 486, 492 (3rd Cir. 1980).
The public interest, as well as the interest of licensee;,
is better served by an agency scrictly and fairly applying its regulations, as those regulations are written.
Further, for the reasons given in its Request for Hearing, NFS has serious doubts about the legality of the transfer contemplated by the license amendment.
It would seem that the public interest would be served by having these issues resolved prior to the amendment and transfer becoming effective.
It does little good for the staff to argue that the amendment is merely permissive rather than mandatory in nature.
The District Court for the Western District of New York on October 16, 1981, relying upon the validity of the amendment, ordered 4..
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(stayed by the 2nd Circuit until November 16, 1981) NFS to vacate the West Valley Site.
Hence, the practical effset of the amendment is to require NFS to relinquish i.o righte under the license.
If the amendment is proven to be invalid in subsequent NRC hearings, substantial unter:aincy would exist as to the operational responsibility and the regulatory authority under the license.
Such a situation clearly is not in the public interest.
Conclusien Accordingly, for the reasons Ptated above as well as these ccutained in its Request for Hearing, NFS respectfully requests that a hearing on the proposed amend-ment be convened without further delay.
Respectfully submitted, eor L. E Attorney for uclear Fuel Services, Inc.
DATE:
October 30, 1981 L
UNITED STATES OF AMERICA NUCLEAR REGLATORY COMMISSION In the Matter of
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Docket No. 50-201 NUCLEAR FUEL SERVICES, INC.
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Provisional Operating
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License No. CSF-1 CERTIFICATE OF SERVICE I hereby certify that the foregoing has been served as of this date by personal delivery or first class mail, postage prepaid, to the following:
Nunzio J. Palladino, Chairr-r Victor Gilinsky, Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington,.D.C.
20555 Washington, D.C.
20555 Peter Bradford, Cummissioner John F. Ahearne, Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Leonard Beckwit, Jr., Esq.
Thomas M. Roberts, Commissioner General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555
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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 of the Executive Legal U.S. Department of Energy Director 1000 Independence Avenue, S.W.
U.S. Nuclear Regulatory Washignton, D.C.
20587 Commission Washington, D.C.
20555
Docketing & Service Section Samuel J. Chilk Office of the Secretary Secretary of the Comission U.S. Nuclear Regulatory U.S. Nuclear Regulatory Comission Comis sion Washington, D.C 20555 Washington, D.C.
20555 (original and three copies)
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George L. Tdgar V
Attorney for Nuclea uel Services, Inc.
DATED:
October 30, 1981 I
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