ML20038B564
| ML20038B564 | |
| Person / Time | |
|---|---|
| Site: | West Valley Demonstration Project |
| Issue date: | 11/19/1981 |
| From: | Rubin L DIEBOLD & MILLONZI, NEW YORK, STATE OF |
| To: | U.S. COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT |
| References | |
| 81-2114, NUDOCS 8112080403 | |
| Download: ML20038B564 (9) | |
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Th.7 ; .s a pr- comiir : pursuant to 28 U.F.C. S2344 fet re/iew o' an
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the United States !!aci c a r Ec uiatory Cc=ission issuing an
. e-d-n-t te an coerating license for a nuclear fuel reprocessing and
.igh-le - 1 ra d ic-- tive este disperal facility. Pursuant te 29 U.S.C.
24- r nu'a 15 M) of the Fcdaral Pule Of Apnellcte Procedure, the !!ew
.crk S t . .e Ener r- Ra sc a r c:- and Develop-'ent i.uthority ("Authcritf") moves e r len- to intervene as a Respondent in this proceeding, on the grounds
- at (!' the Authcrity was a party to the acency proceeding belcw and is tuthor:r.nd hv statute to appear an of richt as a party in this proceeding; 9503 s
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cnd (2) the Autharity is a corporation whose interests are affected by the agency action in questien in this proceeding.
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The Authority is a public benefit corporation and body politic cf the state of :;e.: York, organized pursuant to Title 9 of the New York State Public Authorities Law, 501850 ej sec. mcKinney, 1931). The Authority and the Petitioner, Nuclear Fuel Services, Inc. ("NFS"), are co-licensees under Provisional Operating License No. CSF-1 (" License") originally issued by the United States Atomic Energy Co ::'iscion to NFS and the New York State Atonic ard Space Developrent Authority (the Authority's predecessor) on April 19, 1966. Under the License, NFS is authorized to operate a spent nuclear fuel reprocessing and radicactive waste disposal facility and possess nuclear material at the Western New York Nuclear Service Center
'" Center"' in West Valley, New York. The Authority is licensed only to own
'he Center and to pemit NFS to conduct its authoriced activities under the
'icense.
The Center has not been operated for reprocessing spent nuclear fuel sinca Ir~2. There Tro, however, apprcximataly 600,00') gallons of high-level licuid radioactive wastes, as well as other high-level radioac" ire wastes, present at the Center canerated during the operation r.nd naintenance of the licensed facility and otherwise. The West Valley N onstr..;ic". Trc:ect 1.c (" Project Act"), Nb . L 96-369, was enacted on 7: der 1, 19 0 . W der tr e Tro cct 7.c t the 'Jnited States Department of Energy '"DCE") was authorized and directed to carry cut a high-level nuclear waste nanagement demonstration project (the "Dar.onstration Project") at the center. Section 2 (b) (4) ( A) of the Project Act provides:
The Secretary chall enter into a cocperative agreenent uth the State in accordince with the Federal Grant
). . and Oc0 perative Agreement Act of 1977 under which the State shall carry out the following:
(A) The State will make available to the Secretary the facilities of the Center and the hich level radicactive waste at the Center which are necessary for the completion of the project. The facilition and the caste shall ha nado available without the transfer of title and for such period as may be required for cenpletion of the pro]ect.
Tursuant to the Project Act, the Authority and the DCE entered into a Cooperative Agreement, effective October 1, 1980, which provided, among Other things, for the transfer of pcssession and responsibility for the Center te DOE cn or befero October 1, 1981.
Section 2 (b) (4) (D) of the Project Act directs DCE and the State to 4 submit jointly "an application for a licensing amendment es soon as pessible with the Iuclear Ecgulatory Commissicn providing for the denenstration." On August 14, 1961, the Authority submitted an application to the : RC -- as permitted by paragraph 4 (A) of thi License and as directed by Section 2 (b) (4) (D) of the Project Act -- for an amendment to the License authoricing the terccrary transfer of the Center to DOE for the purpose of ir.nienent nc. the Cerenstration Pro">ect and su s.n endine. the licensees' chligati ns and rights under the License for the duratien of the Dencnctration Prcject. In accordance with Section 2 (b) (4 ) (D) of the Troject 'ct, CCE joined in subnission of the application to the ::RC.
Cn Septe.ter 30, I?^1, the ';RC issued an anendment to the License (Change :;o . 31, nereinafter the " License Anendment") under which, inter alia, the Authority and 'FS were authorized (but not required) to transfer the Center to DOE for implementation of the Denonstration Project and both the Authcrity's and ';F5's rights and obligations under the license were
y sus, rended frer the tine the CCE takes possession of the Center until cennletion cf the Project.*
Ly letter dated Octrber 13, 1981, NFS suSmitted to th^ NEC a notion for an order postponing the effectiveness of the License Amendment and a recuest for a hearing with regard to that License Anendment. On Cetober 20, 1981, NFS filed the instant petition for review of the NRC's issuance of the License Anendment, together with an enercency notion for stay
.condinc review.**
On Novenher 6, 1981, the NFC denied NFS's October 13 notion for an order postponing the effectiveness of the License Amendnent, but granted NFS's request for a hearing.
INTERESTS OF THE AUTHORITY
- n this preceeding brought pursuant to 28 U.S.C. 52344, NFS seeks revie., of the 'FC's September 30, 1981 action issuing the License Anendrent. Tha Isuthority was a party to the proceeding below bcfere the
-: E C . In fact, the 7.uthority applied for the License Anendment, in order to allow it and NFS to transfer the licensed facility to DOE to carry out the Derenstratien Project. DOE is ready and waiting to assune possession of the Center for that purnose. If in this proceeding the Court should enjoin, set aside, or suspend the License Amendnent, which the NEC issued Although, for reasons not naterial here, DOE . ras not prepared to take possession of the Center on October 1, 1991, it has been so prepared n.; 5:s teer waiting te take possessicn since Cctcher 15, 1931. NFS, hcwo ec r , refuses te vacate the Center voluntarily. On October 16, 1991, the ~.ited States Distr;ct Ccurt for the F:ertern District cf New York 4ce"o# an crder granting the Authority's notion, in a pending proceeding (Civ No. 81-1SE), for partial sunnary judgnent recuiring NFS to vacate the MFC licensed facility. That order was stayed by the United States Court of Apocals for the Second Circuit on Oc:cber 20, 1981, pending ex.cedited an.= cal .
- Later cn October 20 and again en Cctober 21, 1991, Orris S. Heistand, E s c. . , and George L. Edgar, Esc.., counsel for NFS, each separately represented to counsel for the A ehority that "FS had notified the Court of its withdrawal of its energency notion for stay pending review.
upon the Authority's application, the licensees would no lenger be i
authori:cd to transfer the Center to DCE to carry out the Project and DOE would be further delayed in taking possession of the Center as it has cc =itted to the Authority in the Cooperative Agreement. Clearly, therefore, the NRC's issuance of the Licence Amendment affects the Authority's interests and any action by this Court enjoining, setting aside, or suspending the issuance of the License Amendment would also necessarily sffect the interests of the Authority.
GROUNDS FOR INT!.:RVENTION Assuning, arcuendo,, for the purpose of this motion that the ORC's issuance of the License Amendment is an agency order subject to the ,
jurisdiction of the Court under 28 U.S.C. S2342(4) and that the instant notition for review was properly brought pursuant to 28 U.S.C. 52344, then:
...any party in interest in the proceeding before the agency whose interests will be affected if an order of the agency is or is not enjoined, set aside, or suspended, nay appear as (a party] thereto of [its) own motion and as of right, and be represented by counsel in any proceeding to review the order. Ccenunities, associations, corporations, firnc, and individuals, whose interests are affected by the crder of the agcncy, may intervene in any proceeding to review the order.
26 U.S.C. 02348. As a party below that applied for and obtained the License Anendrent that NFS challenges here, whose interests will be affected as stated above if the NFC's action is enjcined, set aside, or suspended, the Authority is therefore entitled under 28 U.S.C. 52348 to appear as of right as a party to this proceeding. In any event, since.the Authority is a corporation which was a party below and whose interests are affected by the NFC's issuance of the License Arendment, the Authority should be permitted to intervene in this proceeding as a Recpondent pursuant to the third sentence of 28 U.S.C. 52348.
CONCLUSION For the reasons set forth above, the Court chould grant the Authority's motion to intervene as a party Respondent in this proceeding.
Counsel for the Authority has advised Mr. Shelden Trubatch, Esq.,
Ccunnel for the NEC, and Mr. Georce L. Edgar, Esq., counsel for NFS, of the Authority's intent to file this motion and they have stated that they do not cppese it.
Respectfully submitted, car <1INE J. CLEMENTE General Counsel HOWARD A. JACK First Deputy Counsel New York State Energy Research and Development Authority
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Two Rockefeller Plaza Albeny, "ew York 12223 (518) 4 5-6251
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L.CNARD J. RUBIN Jiebold & Millonti 1920 '. Street, N.U.
Washington, D.C. 20036 (202) 463-6600 D;-TED :
..r.shington, D.C., Noverher 19, 1981.
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PROD. *M)-w DCLKETED mHK UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 111 NO 23 P5:13
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- f. G uriG & SERVICE Nuclear Fuel Services, Inc. ) ERANCH
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Petitioner, )
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Nuclear Regulatory Commission, )
) No. 81-2114 Respondent. )
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New York State Energy Research and- )
Development Authority, )
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, Applicant for )
Intervention )
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, CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Motion of New York State Energy Research and Development Authority to Inter-Vene As of Rights were served on the following parties this 19th day of November, 1981, in the following manner:
By Hand:
Leonard Bickwit, Jr., Esq.
General Counsel U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C. 20555 Sheldon Trubatch, Esq.
Office'of the General Counsel U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C. 20555 ,
George L. Edgar, Esq.
Orris S. Heistand, Esq.
Morgan, Lewis & Dockus 1800 M Street, N.W.
Washington, D.C. 20036
By First-Class Mail, Postage Prepaid:
Nunzio J. Palladino, Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Peter Bradford, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Richard E. Cunningham III Director, Divisicn of Fuel Cycle and Material Safety U.S. Nuclear Regulatory Commis11on Washington, D.C. 20555 Warren E. Bergholz, Jr., Esq.
Office of General Counsel U.S. Department of Energy 1000 Independence Avenue, S.W.
Washington, D.C. 20587 Victor Gilinsky, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 John F. Ahearne, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Thomas M. Roberts, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Clarence T. Kipps, Jr., Esq.
Miller & Chevalier, Chartered 1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006 Guy H. Cunninghar III, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Ccmmission Washington,, D .'C . 20555 James R. Wolf, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555
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u Samuel J. Chilk Secretary of the Commission ,
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 I l
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LEONARD J. RUBIN Attorney for i New York State Energy Research and Development Authority
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