ML20040A053

Denies 811006 Application for Amend to Provisional OL CSF-1 W/O Prejudice.Ny State Energy R&D Authority No Longer Agrees to Amend.Issues of Law & Fact Involve Contract Const.Nrc Defers to Jurisdiction of District Court

ML20040A053
Person / Time
Site:	West Valley Demonstration Project
Issue date:	01/11/1982
From:	Cunningham R NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS)
To:	Deuster R NUCLEAR FUEL SERVICES, INC.
Shared Package
ML20040A050	List: ML20040A049 ML20040A053
References
NUDOCS 8201200266
Download: ML20040A053 (2)

Text

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ns stac UNITED STATES o

o, NUCLEAR REGULATORY COMMISSION 2

e WASHINGTON, D. C. 20555 i v>

JAN 1 : B02

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Docket No. 50-201 l

i Nuclear Fuel Services, Inc.

ATTN: Ralph W. Deuster, President 6000 Executive Boulevard, Suite 600 Rockville, Maryland 20852 l

Gentlemen:

i This is in reference to your application for an amendment to Provisional Operating License No. CSF-1, as set forth in your letter of October 6,1981.

Your letter stated your understanding that the New York State Energy Research and Development Authority (NYERDA) was prepared, subject to certain contingencies, to join in your application.

It now appears that NYERDA is not willing to join in your request at this time and, in fact, NYERDA opposes the grant of the requested amendment.

We enclose a copy of a letter from NYERDA, dated December 17, 1981, which sets forth its position.

In absence of agreement between NFS and NYERDA, we have determined that your application should be denied.

We are taking this action in order to avoid adjudication of issues of law and f act that are presently the subject of litigation in the District Court for the Western District of New York.

These issues involve matters of contract construction with respect to which we have no particular competence. Deferring to the jurisdiction of the court, we believe it appropriate for us to abstain from deciding these disputed issues.

As provided in Paragraph 4.A. of the license, the Comission will act upon an application and may issue an appropriate amendment reflecting future responsibilities in the event of any expiration, modification, cancellation or tennination of the contractual arrangement between NFS and NYERDA or any other change in the relationship between them. We believe the application should articulate precisely the character of the change in the relationship, including consideration of future responsibilities, and provide an explanation for the applicant's view that the requested amendment would be appropriate in the light of that change. Obviously, a final judicial determination i

of the respective rights of NFS and NYERDA would clarify the relationship between them so as to permit a more ready determination of the kinds of licensing action that would be appropriate.

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Nuclear Fuel Services, Inc. 'A t. -

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Accordingly, the Commission denies your application, but without prejudice to your right to resubmit a request for the same or similar relief at any time in the future.

Should you elect to make further application, we trust that you will take into account the considerations listed in the paragraph above.

You may demand a hearing on this action, pursuant to Section 189a. of the Atomic Energy Act of 1954, as amended, by filing a request for hearing within 20 days from the date of this letter.

FOR THE NUCLEAR REGULATORY COMMISSION f Y [ $ n==,

Richard E. Cunningham, Director Division of Fuel Cycle and Material Safety Office of Nuclear Material Safety and Safeguards j

Enclosure:

Ltr frm NYERDA dtd 12/17/81 cc: Mr. James Larocca, NYERDA 1

Mr. Carmine J. Clemente, NYERDA Mr. Warren E. Bergholz, Jr., DOE Mr. O. S. Heistand, Morgan, Lewis

& Bockius i

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DISTRIBUTION LIST L

Irvin D.J. Bross, Ph.D.

Lawrence Brenner, Chairman Administrative Judge Director of Biostatistics Atomic Safety and Licensing Board Roswell Park Memorial Institute U.S. Nuclear Regulatory Commission 666 Elm Street Washington, DC 20555 Buffalo, NY 14263 Dr. Jerry Harbour Orris S. Hiestand, Esq.

Administrative Judge Morgan, Lewis & Bockius Atomic Safety and Licensing Board 1800 M Street, N.W.

Washington, DC 20555 Washington, DC 20036 Mr. Peter A. Morris Docketing and Service Section Administrative Judge Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Cannine J. Clemente, Esq.

Board Panel General Counsel U.S. Nuclear Regulatory Commission New York State Energy Research

' Washington, DC 20555 and Development Authority Two Rockefeller Plaza Atomic Safety and Licensing Albany, New York 12223 Appeal Panel U.S. Nuclear Regulatory Commission Philip H. Gitlen, Esq.

Washington, DC 20555 Whiteman, Osterman & Hanna 99 Washington Avenue Albany, New York 12210 Warren E. Bergholz, Jr., Esq.

Office of the General Counsel U.S. Department of Energy 1000 Independence Avenue, S.W.

Washington, DC 20587

Now York stato Energy Research and DevelopmengeputhorIty s

Two Aockefeller Plaza. Albany, New York 122b$

(518)465 6251 TCg. g g

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December 17, '19'81-

' -: Cijgy Mr. Leland C. Rouse o

A Chief O

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Fuel Licensing Branch Division of Fuel Cycle and DEC 2 31981

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Office of Nuclear Material b

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Safety and Safeguards

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g U.S. Nuclear Regulatory 1,

mas Commission Y

Washington, D. C.

20555 s

g Re:

Provisional Operating License No. CSF-1

Dear Mr. Rouse:

I am writing in response to your recent letters and the

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Commission's notice of November 6,1981 concerning a proposed

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amendment of Provisional Operating License No. CSF-1 submitted by Nuclear Fuel Services, Inc.

NFS' proposed amendment would terminate NFS' license, shift all of NFS' interest, rights and responsibilities to this Authority, and make the Authority the sole holder of the license to operate the fuel reprocess-ing plant and related facilities at West Valley.

Your letters seek the Authority's position on the NFS-proposed amendment and also ask for our comments on a modified formulation of the amendment proposed by NFS, transmitted

.w.ith your December 8 letter.

Background

When the license was originally issued, neither the Atomic Energy Commission nor either of the If.censees intended that the Authority would ultimately be licensed to operate a nuclear fuel reprocessing plant.

As the Commission and NFS well know, the only Federal licensing responsibilities which were to be assumed by the Authority related to maintenance of the high-level storage facilities -- and 20061 n o: se u

4 then, only after NFS had either plhced those facilities in an agreed-upon proper condition or had tendered to the Authority funds sufficient to compensate for any deficiencies.

Matters related to NFS' contractual obligations, however, are currently the subject of litigation in the United States District Court for the Western District of New York.

Procedural Deficiencies As a preliminary procedural matter, NFS' two-page letter of October 6 falls far short of the requirements of the Commission's regulations for an application to terminate an operating license (see 10 C.F.R. Part 50).

For example, NFS' October 6 letter contains virtually none of the general information required by section 50.33, does not contain the decontamination plan required by section 50.82 or any environmental report on decontamination of the facility, and does not include the technical information required by section 50.34.

NFS' declaration that "[alll other information required by the Commission for amendment for an operating license is contained in the previcus submissions of the licensees under Docket No. 50-201" does not cure these defects.

Nowhere does NFS even hint where the relevant information may be found.

In contrast, section k

50.32 of the Commission's regulations permits incorporation by reference only when "such references are clear and specific."

s Because NFS' October 6 letter so fundamentally fails to meet the requirements for an application for termination of its operating license, the Commission should reject or dismiss the submission and refuse to consider it any further, without prejudice to resubmission of a proper application.

Request for Hearing By its October 6 proposal NFS seeks to force upon the Authority licensing responsibilities that the Commission, NFS, and the Authority never intended the Authority to have, which the Authority does not accept, and which are a part of the matters in litigation in the United States District Court for the Western District of New York.

If, despite the procedural deficiencies noted above, the

Commission determines to continuegto entertain NFS' October then as a " person whose interest (will] be 6 submission, affected," the Authority requests a hearing on the proposed license termination, pursuant to section 189(a) of the Atomic Energy Act, as smended, before any Commission action on the proposal.

Sincerely, 3

7 James L. Larocca Chairman All persons on the attached cc:

Certificate of Service.

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