ML20041E460
| ML20041E460 | |
| Person / Time | |
|---|---|
| Site: | West Valley Demonstration Project |
| Issue date: | 03/08/1982 |
| From: | Wolf J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19248B702 | List: |
| References | |
| ISSUANCES-OLA, NUDOCS 8203100558 | |
| Download: ML20041E460 (23) | |
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s x-UNITED STATES OF A!1 ERICA ff
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/J EEFORE THE AT0tilC SAFETY AND LICE!! SING BOARD f}
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\\M'hjs _-7 In the Matter of
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NUCLEAR FUEL SERVICES INC.,
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Docket No. 50-201 OLA
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NEW YORK STATE ENERGY RESEARCH A!;D DEVELOPMENT AUTHORITY (WesternNewYorkNuclearServiceCenter)
ANSWER OF NRC STAFF TO LICENSING BOARD ORDERS DIRECTING FILING 0F FURTHER INFORMATION AND DIRECTING THE SUBMISSION OF POSITIONS ON THE EFFECT OF LICENSE CHANGE NO. 32 The NRC Staff hereby files its answers to the questions contained in the Atomic Safety and Licensing Board's Memorandum and Order Directing the Filing of Further Information and Issues, dated December 31, 1981,
("1981 Order") as modified by the Board's Memorandum and Order Directing the Submission of Positions on the Effect of License Change No. 32, dated February 19,1982("1982 Order").
I.
PRELIMINARY STATElENT CONCERNING CHANGE NO. 32 The NRC Staff transmitted Change No. 32 to the Board by letter dated l
l February 12, 1982. The letter of transmittal stated that "the amendment is not an issue before the Board." The 1982 Order indicates that the i
Board does not know what the Staff means by thi's language. Accordingly, before responding to the specific questions of the Board, the Staff will discuss generally its views with respect to the relation of Change i
No. 32 to the subject matter of this proceeding.
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A.
The Subject fiatter of This Proceedino We start out with the question: what is the subject tatter of this proceeding? Our response will consider, first, the issues presented by the petition of Nuclear Fuel Services, Inc. (HFS) and, second, the issues presented by the request for hearing filed by Dr. Irwin D.J. Bross.
1.
The NFS Petition On August 14, 1981, the New York State Energy Research and Development Authority (the Authority), joined by the U.S. Department of Energy, submitted to NRC an application for amendment of License No. CSF-1. This application was filed in accordance with Section 2(b)(4) of the West Valley Demonstration Project Act, Pub.L.96-368 (the West Valley Act).
In response to this application, the URC Staff issued an amendment (Change No. 31) to License CSF-1 on September 30, 1981. This amendment authorized NFS and the Authority, as their respective interests under the license appear, to transfer the West Valley facility to the Department of Energy in accordance with the West Valley Act.
On October 13, 1981, NFS filed a request for hearing with respect to the conditions of the license amendment.
Simultaneously, NFS filed with the Commission a motion for an order postponing the effective-ness of the license amendment. The motion was predicated upon an asserted right to a prior hearing.
The Commission's Order and Notice of Hearing, dated November 6, 1981, CLI 81-29,14 NRC 940, rejected NFS' argument that it was entitled to a prior hearing on the license amendment; however, the
Commission directed the Chairman of the Atomic Safety and Licensing Board Pcnel "to establish a Licensing Board to conduct an adjudicatory hearing in accordance with 10 CFR Part 2, SLbpart G pursuant to the request of NFS."
The subject matter of this proceeding, therefore, concerns those issues raised by the NFS request for hearing.
In its request for hearing and in its response to this Board's 1981 Order, NFS identified several issues, which we paraphrase as follows:
(A) DOE's Exempt Status.
Is the continuing obligation of a licensee, during the period when a facility is in the possession of DOE, inconsistent with the section of NRC regulations that provides that an NRC license is not required for operation of a facility controlled by a DOE contractor?
(B) Unlawful Delegation. Does the amendment unlawfully delegate to the Department of Energy NRC's regulatory authority over its licensees?
(C) Vagueness.
Does the amendment violate the right of licensees to operate under a clearly defined or predictable regulatory standard?
i (D) Price-Anderson Suspension. May a Price-Anderson indemnity agreement be suspended while a facility license remains in l
effect? May an. indemnification contr,act be modified by unilateral action by NRC?
(E) West Valley Act. May NRC authorize a transfer of the West Valley facility that is not conditioned upon the Authority's acceptance of NFS' rights as licensee?
-4 2.
Dr. Bross' Petition l
In a letter dated October 16, 1981, Dr. Bross requested an "immediate hearing" on Change No. 31, stating: "My concern here is that misguided DOE efforts to clean up the 30,000,000 curies in Tank SD2 could endanger the health and safety of hundreds of thousands of Western New Yorkers."
Dr. Bross cited his status "as a resident and health bureaucrat" as a basis for his concerns.
As contrasted with the Commission's action granting NFS' request for hearing, its order of November 6, 1981 merely directed that a Licensirc Board " review Dr. Bross' request for hearing." >The subject matter of this proceeding, as it relates to the petition af Dr. Bross, therefore, is whether a hearing should be granted with resrect to the efforts of the Department of Energy to clean up Tank 8D2.
It is important to observe that the Board is not authorized to consider whether a hearing on safety issues was required prior to the transfer of the facility to the Departnent cf Energy. This issue was foreclosed by the Ccamission's express finding that "it is in the public interest to make this license amendment immediately effective."
If Dr. Bross was dissatisfied with this determination and wished to have it set aside, he should have presented his objections not to this Board, but rather to the Court of Appeals, by the timely filing of a petition for review.
B.
Change No. 32 On February 1, 1982, NFS requested a further amendment to License No. CSF-1 that would terminate the authority and responsibility of NFS
,.. c under the license upon the occurrence of certain events. A supporting letter dated February 9,1982, was filed by the Authority. The Depart-ri;cnt of Energy, by letter of February 10, 1982, advised NRC that it had no objection to the issuance of the rsluested amendment. On February 11,
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1982, the NRC Staff issued an amendnent, substantially as requested by NFS, which provides for terr. nation of the authority and responsibility cf NFS, effective upon (1) acceptance and surrender of the facility by the Authority from NFS, (2) DOE's assumption of exclusive possession of the facility, and (3) the Settlement Date of a Settlement Agreement in pending civil actions.1/
In short, Change No. 32 relates to the conditions under which, pursuant to Paragraph 4. A. of License No. CSF-1, the future responsi-bilities of NFS and the Authority vis-a-vis one another would be modi-fied with respect to satisfying NRC regulatory requirements. The amendment appropriately reflects changes that have been agreed to by the co-licensees in connection with the termination of their contractual agreements.
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NFS had filed an earlier application (dated October 7,1981) for license amendment that would terminate its authority and respon-sibility under the license. The NRC Staff denied this application on January 11, 1982 so as to avoid adjudication of issues of law and fact that were the subject of litigation in the District Court for the llestern District of New York. The application of February 1, 1982 did not present this issue inasmuch a's termination of the authority and responsibility of NFS under the license would not be effective until the Settlement Date of a Settlement Agreement in the civil litigation. Moreover, the second application, with minor modifications, was acceptable to both of the co-licensees (and the Department of Energy).
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C.
The Relaticn of Change Nc. 32 to the Subject Matter of This Proceeding 1.
With respect to the NFS request for hearing.
Change No. 32 is unrelated to the subject matter presented by the NFS request for hearing.
Issuance of Change No. 32 does not by itself diminish the jurisdiction of the Board to examine the terms and condi-tions which were added to the license by Change No. 31.
NFS is still a licensee and will continue to be a licensee until the Settlement Date that is referred to in the amended license.
NFS has now withdrawn its request for a hearing. However, if NFS had decided to pursue its claims, and if the arguments of NFS were found to be meritorious, it would still be entitled to relief notwithstanding issuance of Change No. 32.
Change No. 32:
(A) Does not modify the continuing licensee obligation during the period when the facility is in the possession of DOE.
(B) Does not modify the authority of the Department of Energy with respect to the licensees.
(C) Does not modify the regulatory standard under which the licensees are required to operate.
(D) Does not modify the suspension of the Price-Anderson indemnity agreement or the manner in which such suspension is made effective.
(E) Does not modify the terms and conditions under which the West Valley facility may be transferred to'the Department of Energy.
More generally, Change No. 32 leaves the provisions related to transfer of the facility er.tirely as they were when the Board assumed jurisdiction.
The NRC Staff was asked to consider an entirely different subject matter
, and, as discussed in more detail below, it acted properly in dcing so.
2.
With respect to D_r. Bross' recuest for hearing It is equally apparent that Change No. 32 is unrelated to the safety issues raised by Dr. Bross. His petition is not concerned with the relationship between NFS and the Authority.
Rather, Dr. Bross is concerned with the activities of DOE, and these activities were not affected by the collateral modification of the respective rights and obligations of the co-licensees under Change No. 32. While issuance of Change No. 32 may have paved the way for a transfer of the facility, it should be remembered that the authority to trankfer was granted by Change No. 31, which was immediately effective. Change No. 32 did not modify this authority in any way. The right to challenge the Commission's action with respect to the immediate effectiveness of Change No. 31 remains as it was -- i.e., a matter reviewable exclusively in the courts and not before this Board.
However, notwithstanding issuance of Change No. 32, the safety issues presented by the request of Dr. Bross remain before the Board, l
The NRC Staff believes Dr. Bross' request for a hearing should be denied, for the reasons stated in the answers set out below.
l D.
Jurisdiction Under NRC Rules of Practice i
The NRC Staff may consider and act upon an application for license i
l amendment while a proceeding is pending before a licensing board. This authority to " issue an order and take any otherwise proper administrative action with respect to a licensee who is a party to a pending proceeding"
. is expressly stated in f!RC regulations.
10 CFR 5 2.717(b). Nevertheless, an order "related to the subject matter of th'e pending proceeding may be modified by the [Coard) as apprcpriate for the purpose of the proceed-ing."
Ibid.
Because the actions taken by the NRC Staff are not "related to the subject matter of the pending proceeding," they may not be modified.
The question of the respective jurisdiction of the Staff and a licensing board has arisen in several cases. The discussion in Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Station),
LBP-79-24, 10 NRC 226, 229-230 (1979), provides a framework for analysis:
... On the one extreme, an activity may be so closely related to the subject matter of a proceeding, as in the Diablo Canyon proceeding, that any Staff order may nonnally not be issued (or, if issued, must be stayed pending resolution to [ sic] the contested issue). At the other extreme, a particular subject may be so far removed from a pending proceeding that its consideration is inappropriate - such as the antitrust issues sought to be raised in the Marble Hill safety and environmental proceeding. Finally, there are matters with respect to which independent Staff action is entirely appropriate but which bear enough relationship to the subject matter of a pending proceeding that review by the Licensing Board in that proceeding is appropriate.
(citations omitted) (emphasis in original).
The present situation is clearly distinguishable from the Diablo Canyons example, in which consideration of a materials license authorizing delivery and storage of fuel assemblies was found to be
" integral" to the consideration of an operating license and, hence, the licensing board's assertion of jurisdiction was found to be proper.
Under the circumstances presented, both the materials license and the
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Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2).
CL1-76-1, 3 NRC 73, 74 n. 1 (1976).
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9 f acility operating license raised conmon questions affecting the health ar.d safety of the public. These included, in particular, the conse-quences of an earthquake in the vicinity of the site and risks to the public from potential incidents of sabotaSe.
Similarly, in Consolidated Edison Company of New York, Inc. (Indian Point Station, Units 1, 2, and 3), ALAB-357, 4 NRC 542 (1976), the licensing board had jurisdiction to consider, in a special proceeding pertaining to seismic issues, a condition in previously issued operating licenses that directly concerned operation of a seismic monitoring network. By contrast, the two license amendments in the present case invo{ve no common factual or legal issues.
Nor is this a case like Zimmer, supra, in which review by the licensing board, after independent Staff action, is appropriate.
Zimmer was another operating license proceeding in which an intervenor sought to have a licensing board review the Staff's issuance of a Part 70 license to receive unirradiated fuel. Such a materials license, as previously noted by the Commission in Diablo Canyon, is integral to the consideration of an operating license, as the operating license (if and when issued) includes authority to transport and store fuel.
Thus, even though the contentions in the two proceedings are not shown to be so closely related as in Diablo Canyon, the licensing board would have jurisdiction.
In
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See, Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units Nos. I and 2), ALAB-334, 3 NRC 809, 820-828 (1976).
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fact, in Zimmer, there appear to have been contenticns that would have a t' earing upon the operating license as well as the Part 70 Itcense -- such istoes as the applicant's financial qualifications and the security of fuel shipnents and the storage facility.
It is the view of the NRC Staff that the flarble HillSI proceeding is most nearly analogous.
In that case, antitrust issues were found to have no relationship to a proceeding convened to consider the radiological health, safety, and environmental aspects of an application. The Atomic Safety and Licensing Appeal Board took notice of the Commission's established practice of convening separate boards to consider antitrust matters apart from health and safety matters and, also, the different expertise needed to decide issues in the two distinct areas of inquiry.
These factors are concededly not present in the instant case. Never-l theless, in our view (for the reasons discussed in Part I.C., above) the issues relevant to the termination of NFS's authority are so far removed from those involved in the transfer of the facility that they are not "related" within the meaning of 10 CFR 6 2.717(b).
The Atomic Safety and Licensing Appeal Board has " stress [ed] that NRC adjudicatory tribunals are precluded from entertaining issues which do not come within the reach of the matters which both have been placed and remain before them for decision." Portland General Electric Company (Trojan Nuclear Plant), ALAB-524, 9 NRC 65, 70 n. 9 (1979), citing 4/
Public Service Co of Indiana, Inc. (fiarble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167 (1976).
Fublic Service Company of New Hampshire (Seabrook Station, Units 1 and 2),ALAB-513,8!!RC694(1978). The Appeal Board repeated this theme even more strcngly in a subsequent ruling in which it characterized 11arble Hill as a " holding of general applicability."
The intervenors endeavored to raise issues manifestly beyond the bounds of the issues identified in the notice of hearing which triggered this special proceeding. The Licensing Board concluded (8 NRC at 745), that it lacked the jurisdiction so to expand the scope of proceeding, citing as authority [ Marble Hill]. The fiarble Hill decision clearly supports that conclusion; it squarely holds that a licensing board does not have the power to explore matters beyond those which are embraced by the notice of hearing for the particular proceeding. Contrary to the intervenors' sugges-tions, this was a holding of general applicability; i.e., it was not restricted to the precise situation presented in Marble Hill (where an attempt had been made to inject anti-trust issues into a proceeding which had been covened to consider solely safety and environmental questions).
portland Ger.eral Electric Company (Trojan Nuclear Plant), ALAB-534, 9 fRC 287, 289-290 n. 6 (1979). Because the organizational and adminis-trative concerns addressed by Change No. 32 are " manifestly beyond the bounds" of the safety issues raised by Dr. Bross, exploration of such concerns by the Board would be unwarranted.
E.
The Relief Sought by NFS As noted at the beginning of this discussion, the Staff wishes to respond to the Board's statement that it does not know the meaning of the Staff's indication that Change No. 32 "is not an issue before the Board."
The factual and legal basis for the Staff's pos'ition is set out above.
Before concluding, however, we should respectfully note our disagreement with the Board's comment that Change No. 32 " accords the very i
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relief sou5ht by llFS in this proceeding."
It is true that flFS indicated, ir its October 13, 1981 letter to the Cornissien, that it wculd withdraw its request for hearing if a pending applicaticn for license amendment, terminating the responsibility of NFS under the license, were granted.
Such an acendment was not the relief requested in a hearing, but a collateral matter which had properly been addressed to the attention of the Director of the Office of Nuclear Material Safety and Safeguards.
In any event, this amendment application was denied by the NRC Staff on January 11, 1982.
The issuance of Change No. 32 neither grants NFS the relief which it sought nor deprives NFS of stan ing to seek a resolution before this Board of the issues raised in its request for hearing.
II. IIRC STAFF RESPONSE TO QUESTIONS The NRC Staff submits the following responses to the questions presented by the Board.
QUESTION 1.
What is the present status and projected schedule of the litigation between NFS and NYSERDA before the United States District Court (W.D.N.Y.) and between NFS and the NRC before the United States CourtofAppeals(D.C. Circuit)? Include the same information for any other currently pending actions before the Courts or other government agencies which may be relevant to the proceeding before this Board.
Include, for each currentl'y pending proceeding,' a brief summary of the l
issues involved and a list of the parties, and explain tibether the pro-cecding before this Board could be rendered moot by the other proceedings.
Response 1.
Pursuant to the 1982 Order, the NRC Staff limits its response to a reply to the answers of the other participants.
The NRC Staff agrees with the answers of NFS and the Authority concerning the status of litigation. Since the answers were filed, a Settlement Agreement, Stipulation, and Order was entered in the litigation in the Western District of New York on February 19, 1982 and an Order dismissing the NFS petition for review of the Commission's order issuing Change No. 31 was entered by the Court of Appeals for the District of Columbia Circuit on February 19, 1982.
(Acopyofthelatter order is attached to this submission.)
With respect to the mootness issue, the NRC Staff agrees that the orders entered in the actions referred to above do not, by themselves, moot this proceeding.
See also Response 3.
QUESTION 2.
What is the relationship to this proceeding of the NRC license amendment proposed by NFS on October 6, 1981, which is the i
subject of the December 10, 1981 letter to the Commission from 0. S.
Hiestand, Counsel for NFS?
(NFS is requested to provide a copy of that amendment application to the Board). What is th'e current status of the NFS application for amendment? To what extent is jurisdiction over the NFS application for amendment properly before this Board as a necessary
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part of the consideration of the requests for hearing delegated to the Coard by the Comission's order of !!over.ter 6,1981?
Response 2.
The f;RC Staff concurs in the Authority's response to Question 2.
A further elaboration of the flRC Staff's position on this issue is set out in the Preliminary Statement.
The Staff, for the reasons expressed in the Preliminary Statement, believes that it would not be appropriate for the changes proposed by NFS on October 6,1981 to be considered by the Board as part of its deliberations.
QUESTION 3.
Set forth the issues, with reasonable specificity and basis (See 10 CFR 6 2.714), which the participants seek to litigate in this proceeding.
For each issue, indicate whether it is solely a legal issue or whether the presentation of evidence is necessary or desirable (and if so, set forth the nature of the evidence which the participant would adduce).
In addition, for each issue, the proponent shall indicate the aexus of the issue to the licease amendment (change no. 31) issued by the f;RCStaff[footnoteomitted].
Response 3.
The NRC Staff believes that, by virtue of the withdrawal of request for hearing filed by NFS, none of the issues raised by NFS remain to be litigated in this proceeding.
The issue which Dr. Bross seeks to litigate concerns the nature of the operations to be' carried out by the Department of Energy and the adequacy of the measures to be taken by the Department in protecting the
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- c. health and safety of the public. Because the !!RC Staff believes, in view of the West Valley Act, that the Commission (and the Ecard) lack juris-e diction to consider these matters in formal proceeding--it submits that 4
the issue presented by Dr. Bross may not be litigated in this proceeding.5/
While the Staff is of the opinion that resolution of the jurisdictional question will allow this proceeding to be terminated, it notes briefly some additional legal questions that would need to be addressed if the Board were to concluse that the Commission is free to review formally the safety issues raised by Dr. Bross. These include:
1.
Whether the Commission's order, insofar as it relates to the request for hearing filed by Dr. Bross, initiates an adjudication within the meaning of 10 CFR 6 2.700. The Commission did not grant Dr. Bross' request for hearing, but verely authorized a Board to " review" it.
If the Board determines that the West Valley Act does not bar consideration of the safety issues, there may still be no adjudication unless a notice of hearing vesting a Board with jurisdiction is issued.
Houston Lighting and Power Company (South Texas Project,UnitNos.Iand2),ALAB-381,5NRC582,592(1977).
In this regard, it should be recalled that licensing boards, pursuant to section 191a. of the Atomic Energy Act, 42 U.S.C. 2241, may.only conduct "such h, earings.as the Commission may direct."
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The basis for this position is explained in the NRC Staff Response to Request of Dr. Irwin D.J. Bross for Hearing, filed November 27, 1981.
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.p 2.
Whether, in the absence of a finding by the Conmission that a formal adjudicatory hearing is required in the public interest, such a hearing nay be obtained by an interested person with o
respect to a facility licensing action which has been found to e
involve no significant hazards consideration.
3.
Whether the transfer of the facility to the Department of Energy so affects the remedies that the Commission can provide as to require denial of the request for hearing.
Each of the foregoing issues presents solely legal issues and no presentation of evidence beyond the record already before the Board is necessary or desirable.
The NRC Staff further notes that it concurs in the Authority's response to Question 3.
_00EST10N 4 Is this Board precluded from inquiry into DOE's conduct of the West Valley Demonstration Project where such inquiry is not for the purpose of regulating or licensing DOE's activities, but rather is incidental to 5 determination of the present and future rights and responsibilities of NFS and/or NYSERDA?
Response 4.
UnderSection2(c)oftheWestValleyDemons,trationProject Act, the Commission (and this Board) are preclu'ded from any " formal" inquiry into DOE's conduct of the West Valley Demonstration Project for any purpose whatever.
The future rights and responsibilities of the nw
- 17 licensees, as their interests may appear, may be the subject of further licensing action (and pessible hearing) wher, said licensees reacquire the facility upon completion of the Project, as provided in Paragraph 7 E. of the license. The technical specifications and other provisions deemed necessary and proper at that time will, of course, have to tahe into account the results of DOE's activities. The Commission will also have an influence upon those activities - and hence the future rights and responsibilities of the licensees - by virtue of its authority to pre-scribe requirements for decontamination and decommissioning (under Section 2(a)(5) of the West Valley Act) and its review and consultation role as set out in Section 2(c) of the West Valley Act.
The considerations that led Congress to proscribe formal Commission review during the course of the project apply with even greater force in the context of determining the present and future rights and responsi-bilities of NFS and/or the Authority.
For if, as Dr. Bross proposed, the inquiry were to be undertaken prior to the transfer of the facility, the result would be to delay the Department of Energy from beginning its work.
As the Commission noted in its order, "the solidification program at West Valley... should not be delayed." But even assuming that an inquiry into DOE's conduct could be undertaken in connection with a deter-mination of the licensees' rights and responsibilities, the only parties having standing to request such examination would be the licensees themselves and neither of them has seen fit to 'do so.
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CUESTION 5.
Would a prehearing conference be useful, as suggested by the Staff, after the respcnses to this order are filed? Are there issues i.hich should be briefed in advance of a prehearing ccnference?
F.esponse 5.
In view of the NFS withdrawal of request for hearing, the NRC Staff nc longer believes that a prehearing conference would be useful.
QUESTION 6.
In general terms, and in light of the above answers, what schedule for further actions in this proceeding do the parties con-template?
Response 6.
The NRC Staff concurs in the course of action set out in the Authority's response to this question.
Additionally, if the Board does allow Dr. Bross a further opportunity to brief the question of whether, in the light of Section 2(c) of the West Valley Act, the Conraission has jurisdiction to hold a hearing on DGE's activit'es, the NRC Staff requests three weeks for filing a response to Dr. Bross' brief.
QUESTION 7.
The NRC Staff, and any other participant wishing to state l
l its views, shall explain why and to what extent change no. 32 "is not an issue before the Board." The explanation by the Staff shall include whether Dr. Bross' request for hearing, as ampl'ified by his further filings, should be considered as being directed to change no. 32 in
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- addition to change no. 31 and/or evaluated against the circumstances altered by change no. 32.
Response 7.
This question is considered at length in the Preliminary Statement above.
Since the Staff considers Change No. 32 not to be "related," the request for hearing filed by Dr. Bross should be con-sidered as directed solely to Change No. 31. There appears to be no change of circumstances resulting from Change No. 32 that is relevant to the jurisdictional issue that arises under Section 2(c) of the West Valley Act.
QUESTION 8.
Dr. Bross and the Staff (to the extent not included in the response to the previous paragraph), and any other participant wishing to do so, shall explain whether and to what extent the issues sought to be litigated by Dr. Bross are affected by Change No. 32.
Response 8.
The issue sought to be litigated by Dr. Bross concerns the safety of prospective activities of the Department of Energy.
This question is entirely unaffected by,the issuance of Change No. 32, which deals with the respective rights and obligations of NFS and the Authority.
QUESTION 9.
The NRC Staff shall explain whether the terms of the Memorandum of Understanding between NRC and DOE'on the "Inplementation of the West Valley Demonstration Project Act of 1980," dated September 23, 1981 (46 Fed. Reg. 56960, November 19,1981) were approved or ratified by
. action of the Commission or whether the hRC Staff officals who executed the agreement did so under general or specific delegations of authority from the Ccamissior.. What weight does the Staff, or any cther i
participant, believe the Board should place on the terms of the Venorandum of Understandirg in deciding matters before us?
Response 9.
The tiemorandum of Understanding was executed by John G.
Davis, Director, Office of Nuclear Material Safety and Safeguards, pursuant to a specific delegation of authority from the Executive i
Director for Operations, dated September 23, 1981. A copy of the instrument of delegation is attached to this submission.
By memorandum dated September 11, 1981, the Executive Director for Operations provided a copy of the Memorandum of Understanding to the Commissioners and advised them that, "I intend to provide a delegation of authority to John G. Davis, Director of the Office of Nuclear Material Safety and Safeguards, to sign the MOU on behalf of NRC."
No member of the Commission took exception to the execution of the Memorandum of Understanding as proposed by the Executive Director for Operations.
The authority of the Executive Director for Operations is set out in the NRC Manual in Chapter NRC-0103 (1981). The authority includes il specific responsibility for executing, with certain exceptions not here relevant, " contracts, agreements, or interagency actions."
Redelegation is specifically pe.rmitted. NRC-0103-04.
The Memorandum of Understanding acknowledges that NRC's " review and censultation shall be conducted informally and, in accordance with the Act, shall not be subject to the formal Commission proceedings or actions required by law for licensed activities." This statement, though essen-tially restating a provision of the West Valley Act, is a further indication of Commission intention that the activities of the Department of Energy not be reviewed by this or any other licensing board.
In other respects, the Nemorandum of Understanding appears to the Staff to have little bearing upon the resolution of the issues before the Board.
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QUESTION 10.
NFS, the Staff, and any other participant wishing to comment, shall discuss whether the " Withdrawal of Request for Hearing" filed by NFS on February 11 was intended to be filed directly before the Commission as a fait accompli, with no further action by the Commission or the Board, and if so whether this is proper. See 10 CFR 6 2.717.
What, if any, procedural effect would an approved withdrawal of the request for hearing by hFS have on the request for hearing by Dr. Bross?
Response 10.
The NRC Staff believes that the NFS " Withdrawal of Request for Hearing" should be treated as an NFS motion to dismiss the proceeding insofar as it relates to the issues presented by the NFS request for hearing. Accordingly, it would be appropriate for the Board to dispose of it by written order and on notice to all parties.
10 CFR 5 2.730.
Cf., The Toledo Edison Company (Davis-Besse Pow'er Station, Units 2 and 3), ALAB-622, 12 NRC 667 (1980).
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- The I;RC Staff has consistently maintained that the requests for hearing filed by fiFS and by Dr. Bross are entirely separate. We have argued, further, that Dr. Bross should not be regarded as 6 petitioner for intervention in the hearing requested by NFS and we have suggested that his request for hearing fails to meet the requirements for intervention set out in 10 CFR 6 2.714. See,flRC Staff Response to Request of Dr. Irwin D.J. Bross for Hearing. Accordingly, the Staff believes that dismissal of the NFS request for hearing would have no procedural effect upon Dr. Bross. The merits of granting him a hearing on the issues which he seeks to litigate are the same whether or not the arguments presented by NFS have been disposed of.
III.
OTHER MATTERS The 1981 Order requests each party to file a list of documents involving the Center filed by it since September 1981. Such a list of documents filed by the NRC Staff is attached to this submission. The Staff understands that the only substantive document filed by the Office of the General Counsel ir the Court of Appeals was the administrative record of Change No. 31.
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Responding to footnote 5 of the 1982 Order, the Staff advises the Board that, to the best of its knowledge, neither the draft letter to I
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Congressman Dingell, nor any other similar letters dealing with whether DOE should be a licensee, were sent by the Commission to Cor.gressman Dingell or other congressmen or senators.
Respectfully submitted, abs R. Wolf i
aunsel for NRC 5 ff Attachments:
1.
Order of the United States Court of Appeals.
2.
Memorandum from William J.
Dircks to John G. Davis,
" Delegation of Authority."
3.
Correspondence with respect to implementation of the WVDPA.
Dated at Bethesda, Maryland this 8th day of March, 1982 4
e l
4
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