ML20049J710
| ML20049J710 | |
| Person / Time | |
|---|---|
| Site: | West Valley Demonstration Project |
| Issue date: | 03/08/1982 |
| From: | Jack H NEW YORK, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OLA, NUDOCS 8203190260 | |
| Download: ML20049J710 (11) | |
Text
,
a ..
tot, FETED
. w
'82 gg il PS 54 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATCMIC SAFETY AND LICENSING BOARD In the Matter of )
)
NUCLEAR FUEL SERVICES, INC. )
) Docket No. 50-201 OLA AND ) g JN
) y NEW YORK STATE ENERGY RESEARCl! )
'\
3 \
\
AND DEVELOPMENT AUTI!ORITY )
(Western New York Nuclear ) k p* *.; ,., d @f. '
Service Center) ) 7 Af4RJg7
[- ?%
RESPONSE OF Tile AUTilORITY TO LICENSING UUDI 5%tilR.m{; -
BOARD ORDER DIRECTING
- SUBMISSION OF POSITIONS j N ts This Response contains the New York State Energy Research and Development Authority's (" Authority") responses to certain questions contained in the Atomic Safety and Licensing Board's (" Board") February 19, 1982, Memorandum and Order Directing the Submission of Positions on t
the Effect of License Change No. 32 (" Order"). To put the Board's questions and the Authority's answers in perspective, the Authority will first explain the essential background of this proceeding.
BACKGROUND This proceeding flows from the August 14, 1981, application of the C3-(" DOE"), for an s
Authority, joined by the U.S. Department of Energy j amendment to License No. CSF-1 authorizing the two licensees--the / [
8203190260 820308 l PDR ADOCK 05000201 i
O PM
_2-Authority and Nuclear Fuel Services, Inc. ("NFS" ) --to transfer the J
licensed facility to DOE for the purpose of carrying out the West Valley Demonstration Project Act, Pub. L. No.96-368. On September 30, 1981, the Commission staff issued such an amendment (Change No. 31), effective immediately, pursuant to 10 CFR S2.106(1981) . Among other things, Change No. 31 suspended the respective authority and responsibilities of NFS and the Authority under the license during the DOE demonstration project, on certain conditions.
On the other hand, for its own purposes NFS wished to have its-license authority and responsibilities terminated. Failing in its f
i attempt to provide for termination by modification of the license amendment the Authority sought, on October 6, 1981, NFS submitted to the Commission--as a separate matter--a request for a license amendment terminating NFS's authority and responsibilities under the license effective upon transfer of the licensed facility to DOE pursuant to Change No. 1 3_1,. Thus, NFS's October 6, 1981, request for amendment presumed the validity and effectiveness of Change No. 31.
Only later--by letter and request dated October 13, 1981--did NFS acek a hearing on Change No. 31, challenging the conditions that would
, apply to NFS upon the transfer of the facility to DOE p?rmitted by
! Change No. 31. Nonetheless, NFS's request for hearing did not specify t
! the form of relief NFS sought with respect to Change No. 31s In 1
partic'clar, NFS's request for hearing did not itself ask for termination of NFS's authority and responsibility under the license. In fact, NFS's transmittal letter of October 13, 1981, to the Commission carefully distinguished between its October 6, 1981, request for license termination and its October 13, 1981, request for hearing on Change No.
I .
3-31 as two separate matters (albeit related in the sense that grantirg NFS's October 6th request for license termination, which presumed the effectiveness of Change No. 31, would necessarily moot NFS's request for hearing on Change No. 31).
As a matter entirely independent of both NFS's October 6th amendment request and NFS's October 13th request for hearing on Change No. 31, on October 16, 1981, Mr. Irwin D.J. Bross also requested a hearing related to Change No. 31. The Commission's staff has explained in detail the independence of NFS's and Mr. Bross' hearing requests: 1!
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 DOE. 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 thousands of Western New Yorkers."
This request is not, in form, a request for leave to intervene, nor is there the slightest indication that Dr.
BrosshasanyiperestintheissueswhichNFShassoughtto be adjudicated l
( 1/ If the request of Dr. Bross were treated as a motion for leave to intervene, the NRC staff would oppose it for failure l to satisfy the requirement that the petition set forth, with l- particularity, the interest of the petitioner in the l proceeding, how that interest may be affected by the results j of the proceedings, and the specific aspect or aspects of the subject matter of the proceeding as to which the petitioner wishes to intervene. 10 CFR S 2.714 (a) (2) . Setting aside the i complete absence of any particular showing of interest other l/ NRC Staff Responce to Request of Dr. Irwin D.J. Bross for Hearing 2-3 (November 27, 1981).
i
4-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 j and possession of the facility by DOE. 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.
On November 6, 1981, the Commission issued an order (CLI-81-29, 46 Fed. Reg. 56081 (Nov. 13, 1981)], which also treated NFS's and Mr.
Bross' requests for hearing as entirely separate matters. The Commission first directed the establishment of a Licensing Board "to i
conduct an adjudicatory hearing. . . pursuant to the request of NFS 1 (emphasis added) ." In addition, the Commission instructed the Board only "to review Dr. Bross' request for a hearing (emphasis added) ." 46 - l Fed. Reg. 56082. I To the best of the Authority's knowledge, Mr. Bross still has never l
sought to intervene with respect to, or indeed described any interest in 1
or nexus of his concerns with, the NFS request for hearing.
On January 11, 1982, the NRC staff denied without prejudice NFS's October 6, 1981, request for termination of license upon transfer of the
, facility to DOE pursuant to Change No. 31. On February 1, 1982 NFS filed a new request f'r license amendment very different from the one it 1
had requested on October 6, 1981. The February 1, 1982, request sought I to amend License No. CSF-1 to provide for termination of NFS's authority and responsibility under the license, effective only upon: (1) !
l acceptance of surrender of the facility by the Authority from NFS, (2) transfer of possession of the facility to DOE pursuant to the provisions 1
of Change No. 31, and (3) the Settlement Date of a settlement agreement I
1 among NFS, Getty Oil Company, and the Authority in litigation pending in the U.S. District Court for the Western District of New York. The Authority responded in support of such an amendment. On February 11, 1982, the NRC staff issued Change No. 32, comprising the requested 2
. amendment. /
Since then, the Authority has accepted surrender of the licensed facility from NFS, effective upon transfer of possession of the facility to DOE. On February 25, 1982, NFS voluntarily transferred exclusive possession of the facility to DOE pursuant to Change No. 31.
RESPONSES TO THE BOARD'S QUESTIONS QUESTION 7.
The NRC Staff, and any other participant wishing to state 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 amplified by his further filings, should be considered as being directed to Change No. 32 in addition to Change No. 31 and/or evaluated against the circumstances altered by Change No. 32.
2/ Note that the amendment NFS requested on February 1,1982, granted in the form of Change No. 32, differs fundamentally from the relief NFS i ,
had sought in this proceeding, as well as from the amendment NFS had sought by its letter of October 1, 1981. As noted above, in this l proceeding NFS has challenged the propriety of the conditions that would apply to NFS upon a transfer of the facility to DOE pursuant to Change No. 31. Although NFS presumably would have urged changing those conditions, in some unidentified way, it never requested any specific form of relief in this proceeding. In contrast, NFS's February 1, 1982, request specifically sought termination of NFS's i
authority and responsibility under the license, upon the occurrence I
of certain events. But the February 1st request, like NFS's October 6, 1981, request, presumed the effectiveness of Change No. 31 and, in addition, acquiesced in the conditions imposed upon NFS by Change.No.
i 31 upon transfer of the facility to DOE.
ANSWER 7.
Change No. 32 is not an issue before the Board because: (1) there are no issues to be decided by the Board with respect to NFS's request for hearing; and (2) it is irrelevant and immaterial to Mr. Bross' request for hearing which has been referred to the Board for review.
NFS has withdrawn its request for hearing. Moreover, by voluntarily transferring the licensed facility to DOE pursuant to Change No. 31, NFS has voluntarily accepted the effectiveness of Change No. 31 and the conditions in Change No. 31 that it had previously challenged. There are no longer any issues before the Board to hold a hearing upon or to adjudicate with respect to NFS's request for hearing; nor any participant seeking to prosecute any issues with respect to that request. The proceeding is completely moot with respect to NFS's request for hearing. Thus, the Authority believes that any further activity in this proceeding with respect to NFS's withdrawn request for hearing would be contrary to the public interest because it would needlessly expend the time and resources of the Board, the NRC staff, and all other participants. The proper action for the Board with respect to NFS's request for hearing would therefore be to formally
, terminate the proceeding on it by dismissal of the request.
Change No. 32 is irrelevant and immaterial to Mr. Bross' request for hearing on Change No. 31 because Change No. 32 affects only the authority and responsibility of NFS under the license. Mr. Bross has not raised any concerns or issues related to the authority or responsibility of NFS with respect to change No. 31. His concerns, instead, relate to the nature and extent of the Commission's authority
_7 over DOE, which Change No. 32 did not affect in any way._3/
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. 31.
ANSWER 8 The issues Mr. Bross socks to litigate have not been affected by Change No. 32. Mr. Bross' concerns are related only to DOE's conduct of the ' West valley Demonstration Project and the extent of Commission review and control of DOE's activities. Change No. 32 does not in any way affect how DOE will conduct the West Valley Demonstration Project or the extent of Commission review or control over DOE's conduct. Change No. 32 merely - provides for termination of NFS's authority and responsibility under the license in connection with a certain settlement of litigation involving NFS,'Getty Oil Company, and the Authority.
Since September 30, 1981, NFS has been authorized by Change No. 31' to transfer possession of the facility to DOE. The Authority does not-believe Mr. Bross has challenged the validity of the transfer authorization contained in Change No. 31. In any event, Change No. 32 does not affect the validity of Change No. 31, or the transfer that has-already occurred pursuant to Change No. 31. For these reasons, Change 3/ Mr. Bross' letter of February 16, 1982, to the Board requests a hearing on NFS's February 1, 1982, request for amendment that led to Change No. 32, but reflects a fundamental misunderstanding of the nature .and effect of Change No. 32, which are described here. In any event, the Authority understands that at this time Mr. Bross' request for hearing on Change No. 32 is before either the Commission or the NRC Staff, not the Board, because the Commission has not referred that request to an Atomic Safety and Licensing Board for any action.
No. 32 is entirely immaterial to Mr. Bross' request for hearing on Change No. 31.
QUESTION 9. ,
- The NRC Staff shall explain whether the terms of the Memorandum of Understanding between NRC and. DOE 'on the " Implementation of the West Valley Demonstration Project Act of 1980" dated September 23, 1981 (46 4
Fed. Peg. 56960, November 19, 1981) were approved or ratified by action of the Commission or whether the NRC Staff officials who executed the agreement did so under general or specific delegations of authority from the Commission. What weight does the Staff, or any other participant, believe the Board should place on the terms of the Memorandum of Unde.rstanding in deciding matters before us?
ANSWER 9.
The Authority believes that the Board should accept as conclusive 1
upon the Board the terms of the Memorandum of' Understanding. The Commission has embraced the Memorandum of Understanding as its own. The Commission order providing for a hearing on NFS's request for hearing states with respect to that Memorandum:
...[T]he (West-Valley Demonstration Project Act] required that by October 1, 1981, the Secretary (of Energy) and Commission shall have entered into an agreement for the Commission's j informal review and consultation of DOE's proposed activities 2 at the Center. This agreement has been implemented. [46 Fed.
Reg. 56082. Emphasis added.]
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 2.717. What, if any, procedural effect would an approved withdrawal of the request for hearing by NFS have on the request for hearing by Dr. Bross?
ANSWER 10.
The Authority has no knowledge of NFS's intention in this respect.
The Authority sees nothing in the Commission's regulations, however, that requires Commission or Board approval of any withdrawal of a request for hearing or provides for the Commission or the Board to
c
_9 impose any conditions upon withdrawal. Where the Commission intended to provide for approval of, or the ability to condition, withdrawal of a pleading, it has done so explicitly in its regulations. See 10 CFR j S2.107 (a) (1981) . The Authority concludes that a withdrawal of a request for hearing is not subject to Commission or Board approval or to the imposition of conditions by the Commission or the Board. Accordingly, since the proceeding is completely moot with respect to NFS's request for hearing, tha proper course of action for the Board is to dismiss, and terminate this proceeding insofar as it relates to, NFS's request for hearing.
Termination of the proceeding with respect to NFS's request for hearing will have no procedural effect on Mr. Bross' request for hearing. As explained above, Mr. Bross' request for hearing is entirely independent of and unrelated to the issues NFS has raised in its request i for hearing.
Respectfully submitted, NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY
, Carmine J. Clemente.
Gener 1 Counsel '
/
f s k '
Howard A. Jack First Deputy Counsel Dated: March 8, 1981 Albany, New York
r .
UNITED S'vATES OF AMERICA NUCLEAR REGULATORY CO!! MISSION In the Matter of )
)
NUCLEAR FUEL SERVICES, INC. )
)
'AND ) Docket No. 50-201 OLA
)
NEW YORK STATE ENERGY RESEARCH )
AND DEVELOPMENT AUTi!ORITY )
(Western New York Nuclear )
Service Center )
CERTIFICATE OF SERVICE I certify that copics of the above Response have been served as of this date by first class mail, postage prepaid, upon:
Lawrence Brenner, Chairman Warren E. Bergholz, Jr., Esq.
Administrative Judge Office of General Counsel Atomic Safety and Licensing Board U.S. Department of Energy U.S. Nuclear Regulatory Commission 1000 Independence Avenue, S.W.
Washington, D.C. 20555 Washington, D.C. 20587 Dr. Jerry liarbour Irwin D. J. Bross, Ph.D.
Administrative Judge Director of Biostatistics
, Atomic Safety and Licensing Board Rc3well Park Memorial Institute U.S. Nuclear Regulatory Comuission 666 Elm Street Washington, D.C. 20555 Buffalo, New York 14263 Mr., Peter A. Morris Counsel for NRC Staff Administrative Judge Office of the Executive Legal Atomic Safety and Licensing Board Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Orris S. Iliestand, Jr. , Esq. Docketing and Service Section Morgan, Lewis & Bockius Office of the Secretary 1800 M Street, N.W. U.S. Nuclear Regulatory Washington, D.C. 20036 Commission Washington, D.C. 20555
r .,
George L. Edgar, Esq. Atomic Safety and Licensing Morgan, Lewis & Bockius: Board Panel 1800 !! Street, N.W. U.S. Nuclear Regulatory Conan.
Washington, D.C. 20036 Washington, D.C. 20555 Frank K. Peterson, Esq. Atomic Satety and Licensing
!! organ, Lewis & Bockius Appeal, Panel 1800 M Street, N.W. U.S. Nuclear Regulatory Corza.
Washington, D.C. 20036 Washington, D.C.- 20555
/
^
./ .
._t-Howarcf A. Jack "
1 /
First Deputy Couns New York State En rgy.Research and Development Authority Dated: March 8, 1982 Albany, New York
.