ML20033B326
| ML20033B326 | |
| Person / Time | |
|---|---|
| Site: | West Valley Demonstration Project |
| Issue date: | 11/27/1981 |
| From: | Klucsik J, Wolf J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OLA, NUDOCS 8112010248 | |
| Download: ML20033B326 (11) | |
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.q NoyggIO8/A 7 UNITED STATES OF AfiERICA 44 NUCLEAR REGULATORY COMMISSION
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g BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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NUCLEAR FUEL SERVICES INC.,
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AND
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Docket No. 50-201 OLA
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NEW YORK STATE ENERGY RESEARCH
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i iD DEVELOPMENT AUTHORITY
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(Western New York Nuclear Service
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Center)
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NRC STAFF RESPONSE TO REQllEST OF DR. IRWIN D.J. BROSS FOR HEARING The NRC staff subnits that the request for a hearing submitted by Dr. Irwin D.J. Bross should be denied for failure to identify any issta within the jurisdiction of the Board.
I.
INTRODUCTION In response to an application filed t'y the New York State Energy Research and Developnent Authority (NYSERDA), joined by the U.S.
Department of Energy (DOE), the NRC, on Sept. 30, 1981, issued Change No. 31 to License CSF-1. Among other things, Change No. 31 authorized -
NYSERDA and its colicensee, Nuclear Fuel Services. Inc. (NFS), as their interests under the license appear, to transfer the flestern New York Nuclear Service Center, a licensed production facility, to 00E for a limited time in accordance with the West Valley Denonstration Project Act (the West Valley Act), Pub.L.96-368.
Change No. 31 was effective upon issuance.
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Shortly thereafter, NFS requested a hearing in connection'with Change No. 31, pursuant to % 189(a) of the Atomic Energy Act of 1954 (AEA), 42 U.S.C. I 2239, as amended.
On October 16, 1981, Dr. Irwin D.J. Bross also requested a hearing on the license amendment.
On November 6,1981, the Commission ordered that an Atomic Safety and Licensing Board be established to conduct an adjudicatory hearing in accorda'nce with 10 CFR Part 2, Subpart G pursuant to the request of NFS, and to review Dr. Bross' request for a hearing. Consistent with the Commission's identification of these two independent responsibilities of the Board, the NRC staff is fili.1 with the Board, as separate documents, an answer to the NFS request and this response to the request of Dr. Bross.
At the outset, it is important to emphasize that the requests of NFS and Dr. Bross are entirely distinct. The issues raised by NFS relate to the authority of the Commission to authorize a transfer of the facility under the conditions set forth in Amendment No. 31 and the responsibilities of NFS as licensee after transfer of the facility to D0E. The NFS request does~
not address the activities to be carried out by DOE or any risk to the health and safety of the public that may result from DOE's conduct of the project.
By contrast, the request filed by Dr. Bross deals exclusively with his concern, "as a resident and a health bureaucrat," that DOE's activities "could endanger the health and safety of hundreds of thousa:1ds of Western New Yorkers." This request is not, in form, a request for leave to intervene, nor is there the slightest indication that Dr. Bross
. has any interest in the issues which NFS has sought to be adjudicated.E The NRC staff is therefore filing this statement not as a response to a petition for leave to intervene in the proceeding requested by NFS, but rather as a response to an entirely distinct request for hearing on the issuance of the license amendment. Under the order of the Commission, the Board is authorized to review Dr. Bross' request and enter appropriate orders.
For the reasons set forth below, the NRC staff believes that the conduct of fonnal proceedings on the issues raised by Dr. Bross would be contrary to the West Valley Act and that the request for hearing should therefore be denied because of lack of subject matter jurisdiction.
II. DISCUSSION Dr. Bross bases his hearing request on the proposition that the license at West Valley is being shifted to DOE for cleanup operations.
T If If t e request of Dr. Bross were treated as a motion for leave to intervene, the NRC staff would oppose-it for failure to satisfy the requirement that the petition set forth, with particularity, the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding, and the specific aspect or aspects of the subject matter of the proceeding as to which the petitioner wishes to intervene.
10 CFR 5 2.714(a)(2).
Setting aside the complete absence of any particular. showing of interest other than the vague assertion that Dr. Bross is "a resident and a health bureaucrat," the request points to no aspect of the subject matter of the proceeding as to which intervention is sought. The subject matter of the hearing requested by NFS relates to the conditions under which a transfer of a facility is to be authorized; Dr. Bross asserts no interest in the transfer, but is instead concerned about the subsequent use and possession of the facility by D0E.
Further, Dr. Bross fails to explain how a resolution of the issues raised by NFS--for example, changes in the subsequent responsibilities of NFS--would affect any of the interests which he asserts.
, i In so doing, Dr. Bross fundamentally misapprehends the nature of the license amendment.
Change No. 31 provides that "the licensees, as their respective interests under this license appear, may transfer the facility to the United T',ates Department of Energy (" DOE") in accordance with the West Valley Demonstration Project Act...." subject to several conditions not relevant to the present discussion.
The amendment embodied in Change No. 31 does not authorize transfer of the license to DOE, nor does it contemplate that any activities of DOE will be perfomed under License No. CSF-1 or any other license granted by NRC. On the contrary, Change No. 31 permits the licensees to transfer possession of the facility to DOE for the purposes of conducting the West Valley Demonstration Project.
What Dr. Bross requests is that the Comr&sion, in formal proceedings, determine whether the activities planned by DOE would endanger the public health, safety and the environment. His request states:
My concern is that misguided DGE efforts to clean up the 30,000 curies in Tank 8D2 could endanger the health and safety of hundreds of thousands of Western New Yorkers. DOE wants to remove the sludge [in the tank] by violent agitator action.
This is apt to cause a loss of containment accident that would be an environmental disaster.
These issues may not be addressed in NRC licensing proceedings.
The expres:: language of the West Valley Act, and the accompanying legislative history, demonstrate clearly that DOE's conduct of the project is not a proper subject of inquiry before this Board.
I
. TheWestVaileyi
- itself provides that:
review and consultation by the Commission... shall be conduc+r
'nfomally by the Commission and shall not include nor rm,2.re formal procedures or actions by tae Commission pursuant to the Atomic Energy Act of 1954, as amended, the Energ Reorganization Act of 1974, as amended, or any other law.
Discussion on the floor of the House of Representatives left no doubt that its version of the Act was not intended to change the nonregulatory relationship that would otherwise obtain between DOE and the Commission in the conduct of research, development and demonstration in nuclear energy.E Congressman McCormack stated flatly:
DOE is not subject to NRC control or licensing except for the two very limited instances... that is, the NRC would prescribe requirements for decontamination and decommissioning and may require certain safety reports. Other than these two instances, the NRC is in purely an advisory situation.
It is anticipated that NRC might need to amend its license on West Valley to take cognizance of the DOE involvement at the site, but that this would be purely an administrative technicality that would not affect the project.
126 Cong. Rec. H8765 (daily ed. Sept. 15,1980).
2]
Pub.L.96-368, 94 Stat. 1347, S 2(c). The Commission is required, however, to conduct an informal review and consultation with respect to the project pursuant ta arrangements with DOE.
Ibid. Such arrangements have been established by means of a Memorandum of Understanding effective Sept. 23, 1931. 46 Fed. Reg. 56960, Nov. 19, 1981.
3]
Certain DOE activities are subject to licensing by NRC, under Section 202 of the Energy Reorganization Act of 1974, 42 U.S.C. 5842. The activities authorized by the West Valley Act do not fall within the scope of Section 202. Also, it should be noted that "Nothing in this Act [the West Valley Act] shall be construed as affecting any applicable licensing requirement of the Atomic Energy Act of 1954 or the Energy Reorganization Act of 1974." Pub.L.96-368, 5 5(a).
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6-Congressman' Lundine echoed the point, stating that the-House bill 4
" clearly does not intend this project to be licensed by the Nuclear Regulatory Commission." 126 Cong. Rec. H8766 (Daily ed. Sept. 15,1980).
It was a Senate amendment which explicitly characterized the NRC consultation procedure as informal and which was finally enacted.
126 Cong. Rec. S12,762 (daily ed. Sept. 17,1980).
A further, more detailed, review of the legislative history is appended to this responsr as Attachment 1.
Granting' a hearing on the issues. raised by Dr. Bross would engage the Commission in precisely the kind of formal procedures and actions
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r that are specifically prohibited by the Act.
Irrespective of the merits of his concerns, any formal substantive inquiry would conflict with the statutory direction that DOE's conduct of the West Valley Demonstration Project is to be exempt from Commission licensing review.
l A' Licensing Board has only the jurisdiction and power which the
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Commission delegates to it. Commorwealth Edison Co.- (Carroll County Site), ALAB-601, 12 NRC 18, 24 (1980). A Licensing Board, however, has i
the power in the first instance to rule as to the scope of tits jurisdiction when it is challenged. Duke Power Co. (Perkins Nuclear Station, Units 1, 2 & 3) ALAB-591, 11 NRC 741, 742 (1980). DOE's conduct of the West Valley Demonstration Project-is statutorily exenpt from Commission licensing, and the Commission is without authority to review this conduct in fomal proceedings. The Commission cannot delegate to~its Licensing Board jurisdiction or power it lacks.
Dr. Bross' request for a hearing raises no issues other than those arising from DOE's conduct of the 7, -
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. Project. Because a delegation of jurisdiction to review the issues presented by the request is beyond the power of the Commission, this Board must rule 3
a that granting Dr. Bross' request for a hearing is beyond its jurisdiction.O III.
CONCLUSION For the foregoing reasons, the staff submits that" the Board must deny the request for hearing because of the lack of subject matter jurisdiction.
Respectfully submitted,
'f n-hn F. Klucsik
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Counsel for the NRC Staff 7
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/JaWsT. Wolf
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' Counsel for the NRC aff Dated at Bethesda, Maryland
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This.27 day of November,1981.
4)
Since the Staff is of the view that there is a clear jurisdictional bar to granting Dr. Bross' request for a hearing, we have not-addressed the content of his request. Should the Board determine, however, that it has jurisdiction, the Staff requests the opportunity to demonstrate, in a further pleading), that the request fails to meet the requirement of 10 CFR 9 2.714(a (2), in that it fails to set forth (1) any interest in the grant or denial of the license amendment; (2) how the petitioner's interest may be affected by the grant or denial of the amendment; (3) the specific aspect of the license amendment sought-to be litigated; and the req)uirement of 10 CFR S 2.714(d) in that it fails to demonstrate (1 any right under the Atomic Energy Act to be made a party to the -
licensing proceeding; (2) the nature and extent of the petitioner's property, financial or other interest in the licensing action; and (3) the possible effect of any order which may be entered in the licensing proceeding.
ATTACHMENT 1 The requirement that the Secretary join New Ycrk in applying to NRC for a license a.endment first appeared when the Senate considered S. 2443.
126 Cong. Rec. S tion would be made only if a license amendment would be necessary for th, plica The ac'ccm;anying report stated that such joint ap 6731 (June 12,1980).
e conduct of the project.
S. Rep. No.96-787, 95th Cong., 2d Sess. 7 (1980). Thus, at that time the Senate had not concluded that a license amendment was essential.
The bill also explicitly provided for application of the Atomic Energy Act (AEA) and Energy Reorganization Act (ERA) to all aspects of the project.
How-over, it is not clear whether the Senate intended this provision to impose new licensing requirements or merely require that existing law be applied.
Mhen the House considered H.R. 65'55, the Senate bill had been substant'ially redrafted by the Comittee on Interstate and Foreign Comerce.
The Bill no longer explicitly provided for application of the AEA and ERA to all aspects of the project, or for a joint license application.
It did require the Secretary to provide technical assistance to New York in obtaining a license amendment.
However, most importantly, the bit 1 contained new explicit consultation procedures consistent with earlier NRC 'recomendations.
Those recomendations explicitly excluded NRC licensing of DOE from the NRC proposed definition of consultation.
On the floor, Mr. McCormack, in comenting on H.R. 6855, stated that this con-sultation procedure, and consultation regarding decontamination and decomission '
ing, were the only areas of NRC regulation of E0E.
126 Cong. Rec. H 8765.
Mr. Lundine agreed that H.R. 6555 was not intended to provide for NRC licensing of the project.
Id. at H 7866. Mr. Dingell, in comenting on Mr. McCormack's statement, noted tiiat because West Valley is currently licensed, a license amendment would be necessary.
Id.
However, this statement is not inconsistent with Mr. McCormack's because Ne TYork's license would require amending indepen-dent of any licensee responsibilities on the part of DOE.
Mr. Ottinger observed that the bill did not contain a provision originally in the Interstate and Foreign Ccmerce Comittee's version which would have author-ized the NRC to terminate at any time any action by the Secretary.
He asked whether that provision had been dropped as unnecessary because the existing license would require an amendment. tir. Dingell agreed.
126 Cong. Rec. H 8768.
This does lend support to an argument that NRC review of a license amendment would entail review of all aspects of the project, and that issuance of the amendment could be conditioned such that NRC could terminate later actions of the Secretary.
However, such an argument would be contrary, to the statements of Messrs. McCormack and Lundine.
More importantly, adoption of this argument could render superfluous the. specific consultation procedures provided in the Act.
The bill went back to the Senate, which amended it by reinstating the, provision requiring the Secretary to join New York in applying for a license amendment and clarifying' the NRC's consultative role by explicitly characterizing it as infor-mal.
Senator Jackson stated that the recuirement that the Secretary join New York in applyin'g for a license amendment was intended to ensure protection of the Federal government's interest as supplier of 90 per cent of the project's
. costs.
126 Cong. Rec. S 12762.
Thus, the Sena e did not intend to make DOE a co-licensee by requiring the Secretary to foin Neo Ycrk in applying for a license amendment.
Moreover, the Senate's acendme.rt to explicitly characterize the NRC cor.sultation procedure as informal shows an intention not to treat DOE as a licensee.
The bill returned to the House and was passed without further amendment.
Before the vote, in response to a question from Mr. Lujan, Mr. Lundine explained that the amendment requiring the Secretary to j:in DOE in a license amendment applica-tion was intended to ensure DOE's agreement to the amendment.
126 Cong. Rec. H 9052.
Mr. Lujan found the provision desireable as explained.
Id. Mr. Dingell, on the other hand, in his extended rer, arks, expressed the view tnat the amendment put DOE in the position of a coli:ense.
Id. at H 9053.
However, as noted, this does not appear to have been the purpose of the Senate in adding the provision.
Moreover, because that statement was not nade on the floor of the House, there was no opportunity for other Congressmen to respond to that statement; and no othe-Congressman expressed similar views.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOAR 0 In the Matter of
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NUCLEAR FUEL SERVICES, INC.
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AND Docket No. 50-201 OLA NEW YORK STATE ENERfiY RESEARCH
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- AND DEVELOPMENT AUTPORITY
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(Western New York huclear
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Service Center)
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CERTIFICATE OF SER'/ ICE I.hereby certify that copies of NRC STAFF RESPONSE TO REQUEST OF -
DR. IRWIN D.J. BROSS FOR HEARING in the above-captioned proceeding have been served on the following by deposit in the United States-rail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 27th day of November,1981.
Lawrence Brenner, Chairman
- Carmine J. Clemente. Esq.
Administrative Judge General Counsel Atomic Safety and Licensing Board New York State Energy Research U.S. Nuclear Regulatory Commission and Development Authority Washington, D.C.
20555 Two Rockefeller Plaza Albany, New York 12223 Dr. Jerry Harbour
- Philip H. Gitlen, Esq.
Administrative Judge Whiteman, Osterman & Hanna Atomic Safety and Licensing Board.
99 Washington-Avenue U.S. Nuclear Regulatory Commission ~
Albany, New York 12210 Washington, D.C.
20555 Warren E. Bergholz, Jr., Esq.
Mr. Peter A.' Morris
- Office of the General Counsel Administrative Judge U.S. Department of Energy Atomic Safety and Licensing Board 1000 Independence Avenue, S.W.
U.S. Nuclear Regulatory Commission Washington, D.C.
20587 Washington, D.C.
20555 r
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.. Irvin D.J. Bross, Ph.D.
Docketing and Service Section
- Director of Biostatistics Office of the Secretary Roswell Park Memorial Institute U.S. Nuclear Regulatory Commission 666 Elm Street Washington, D.C.
20555 Buffalo, N.Y.
14263 Atomic Safety and Licensing Orris S. Hiestand. Esq.
Board Panel
- Morgan, Lewis & Bockius U.S. Nuclear Regulatory Commission 1800 M Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20036 Atomic Safety and Licensing Appeal Panel
- U.S. Nuclear Regulatory Commission Washington, D.C.
20555
~ohn F. Klucsik ounsel for NRC Staff i