ML20054F268
| ML20054F268 | |
| Person / Time | |
|---|---|
| Site: | West Valley Demonstration Project |
| Issue date: | 06/07/1982 |
| From: | Cunningham R NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | Larocca J NEW YORK, STATE OF |
| References | |
| NUDOCS 8206150451 | |
| Download: ML20054F268 (2) | |
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Mr. James Larocca, Chairman RBoyl e 2
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h Albany, NY 12223 Gentlemen:
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(.o to I have enclosed with this letter 1) a copy of the response received from Nuclear Fuel Services concerning their views regarding the statements and arguments of the Sierra Club on Change No. 32 to Provisional Facility Operating License 110. CSF-1, and 2) a copy of a letter to the Sierra Club which enclosed copies of the views of both co-licensees.
Following the receipt of any additional information, if any, from the Sierra Club we will act upon their request within a reasonable time and ddVise each party of our decision.
Sincerely, Original signed by Richard E. Cunningham Richard E. Cunningham, Director Division of Fuel Cycle and l'aterial Safety Office of Nuclear Material Safety and Safeguards
Enclosures:
1.
Copy of response fron NFS 2.
Copy of a letter to the Sierra Club 8206150451 820607 PDR ADOCK 05000201 0
- PLEASE SEE PREVIOUS CONCURRENCE COPY FOR PRIOR CONCURRENCES.
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Docket 50-201 JRoth, Region I NMSS r/f LCRouse FCAF r/f ATClark Docket lio. 50-201
'PDR FBrown (LA)
LPDR (2)
WTing Project M-32 JGDavis DMausshardt riew York State Ene \\qy Research and RECunningham Developnent Author (ty DRChapell tir. Janes Larc a Chairman ATTU:
Agency Guilding No. 2, apire State Plaza RBoyle Albany, HY 12223 JWol f Lenticaen:
I have ericlosed with this lett
- 1) a copy of the response received froa Nuclear Fuel Services concernint their vicus regarding the statements and arguacnts of the $1erra Club on C ange ho. 32 to Provisior.a1 Facility Operating License ho. CSF-1, and 2 a copy of a letter to the Sierra Club which enclosed copies of the views both co-licensees.
Following the receipt of any additiona infornation, if any, from the Sierra Club we will act upon their requ st within a reasonable tiac and advise each party of our decision.
Sir.::t oly, Richard E. Cunninghan, Director Division of uel Cycle and ibterial S fety Office of 14uc par !!aterial Safety anc Safeguard
Enclosures:
1.
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Re:
Sierra Club's Petition' for a Show Cause Order to Rescind Chanze No. 32 to License No. CSF-1.
Dear Mr. Cunningham:
Nuclear Fuel Services, Inc. (NFS) hereby responds m
to your letter of April 27, 1982 requesting NFS's comments on the March 26, 1952 petition of the Sierra Club for a sh'ou -
cause proceeding to rescind Change No. 32 to License No.
CSF-1.
From your letter, NFS understands that the Commis-sion is treating the petition as a request for reconsidera-tion rather than as a recuest for a show cause notice.
Straary Change No. 32 was issued in accordance with MRC regulatory procedures af ter the Comcission determined that it would involve no significant hazards.
The Sierra Club has alleged no viola: ions of any regulatory requiremen:s for which an order to show cause could be issued against NFS pursuant to 10 C.F.R. 5 2.202.
The Club's contention that important issues remain to be resolved are unsubstantiated-and patently incorrect.
NFS, therefore, submits that since the Sierra Club has presented no legitimate reason why Change No. 32 should be rescinded, its reque,st. whether considered a request for a show cause proceeding or for reconsideration of the Commission's issuance of Change No. 32, must be denied.
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MORGAN, Lewis E. SOCKlUS Richard:E. Cunninghan May 24,1982 Page 2
Background
Nuclear Fuel Services, Inc. and the New York State Energy Research and Development Authority (NYSERDA) are joint licensees under NRC Provisional Operating License CSF-1.
The license, issued ~ April 19, 1966, authorizes NYSERDA to own the West _ Valley, New York facilities used for the reprocessing of spent nuclear fuel, and the storage and disposal of radioactive wastes, and authorizes NFS to operate those facilities.
On October 1, 1980, the West Vallay Demonstration Project Act, Pub. L.96-368
(" Act"), was enact ed.
The pur-pose of the Act was to authorize the Department of Energy
(" DOE") to carry out a high level liquid nuclear waste management deconstration project at West-Valley.
The Act, Section 2(b)(4)(A), provides that "(t)he State (of New York) will make available to the Secretary (of DOE) the facilities of the Center and the high level radioactive waste at the Center, which are necessary for completion of the project" (hereinaf ter "the West Valley facilities").
Section 2(a)(5) of the Act provides that DOE shall decontacinate cnd decom-cission the facilities in accordance with such recuirements as the Ceamission cay prescribe, and Section 2(c) directs that DOE shall consult with the Commission and suheir plans and safety reports to the Cornission for review and cocment.
NYSERDA and DOE entered into a Cooperative Agree-ment, ef fective October 1, 1980, to i=plement the demonstra-l tion project.
Pursuant to the Cooperative Agreenent, NYSERDA agreed to 3 rant exclusive use and possession of the West Valley facilities to DOE for the duration of the Proj e ct, which is expected to last for acre than fifteen years.
The Agreement further provides that upon proj ect completion, NYSERDA will accept surrender of the decon-tarinated and decocaissioned f acilities fror' DOE.
A necessary precondition to the lawful transfer of the NRC licensed facilities and radioactive materials to DOE was a valid amendment to License CSF-1 pernicting such a transfer.
Pursuant to an apolication by NYSIRDA, joined by DOE, on Septe=ber 30, 1931, the Cocaission issued a license atendeent, Change No. 31, to License CSF-1.
Change No. 31 authorized NFS and NYSERDA, as thepr interests appeared, to transfer exclusive possession of the West Valley facilities 4
MORGAN. Ltwis 2. BoCKlUS Richard E. Cunningham May 24, 1982 Page 3 to DOE, subject to certain conditions, in order to implement the West Valley Demonstration Project Act.
NFS opposed the issuance of that license amendment wi thout NFS as licensee having the opportunity for a prior hearing, as authorized by NRC regulations.
Although Change No. 31 was, on its face, per=issive, NFS was concerned that the Change could become mandatory if a court order forced NFS to vacate the West Valley facilities. If In that event, NFS would have been faced with undefined legal.and economic consequences.
NFS, therefore, filed with the NRC Concissioners a Motion to Postpone the Ef fectiveness of the License Amendment and a Request for Hearing. 2f By Order dated November 6, 1981, the NRC Cocaissioners denied NFS's Motion, and directed the Chaircan of the Atomic Safety and Licensing Board (ASL3) to establish a Licensing Board to conduct a hearing pursuant to NFS's request.
On October 16, 1981, NYSERDA obtained a partial su::ary judgcent from the U.S.
District Court for the Western District of New York requiri~ng HFS to vacate the West Valley facilities.
This Order was subsequently stayed and later reversed by the U.S. Court of Appeals for the Second Circuit.
In remanding the case, the Court directed the District Court to act promptly to resolve the litigation.
-1/
At that time NYSERDA and NFS were involved in active litigation in the U.S. Di s t ric t Court for the Western District of New York concerning their contractual rights and responsibilities with regard to the West Valley facilities.
-2/
NFS also filed a cecition with the U.S.
Court of Appeals for the Dist-rict of Colu=bia Circuit question-ing the validity of Change No. 31 because of the canner in which it was issued.
This petition was withdrawn on February 11, 1982, after the pa'rties had reached agree-cent on the ter:s of their Se::lement Agreement.
MonoAN, Lewis E. Bocsius Richard E. Cunningham May 24, 1982 7
Page 4 Under an order from the District Court to confer with a Magistrate regarding resolution of their differences,
NYSERDA and NFS negotiated a Settlement Agreement, Stipula-tion, and Order (Settle:ent Order) to be subcitted to the Court.
As a part of their negotiated agreenent, on February 1, 1982, NFS, joined by NYSERDA, submitted to the Commission an application to acend License No. CSF-1 3/ co provide for teroination of NFS' responsibilities as a T'icensee effective on the occurrence of three conditions:
- 1) acceptance of surrender of the West Valley facilities by NYSERDA, 2) assumption of exclusive possessinn by DOE, and 3) occurrence of the " Settlement Date" specified in a settlement agreement and order. 4/
On February 11, 1982, the Concission issued Change No. li2, which provided that NFS'.s responsibilities and authority under the License would be terminated when the three conditions had been met.
In accordance with the procedures agreed to by NFS and NYSERDA pursuant to the terms of the proposed Settlement Order, on February.11, 1982, NFS notified the Licensing Board that NFS was withdrawing its Request for Hearing on Change No. 31. 5/
That settlement Order was approved by the District Court on February 19, 1982.
By the tercs of
-3/
NFS had previously subritted a proposed amendment to License No. CSF-1 on October 6, 1981.
That amendment would have autocatically terminated NFS as a licensee unen DOE assuming exclusive possession and control of the West Valley f acilities.
The Coccission, in a letter dated January 11, 1982, denied, without prej u-dice, that application because NYSERDA and NFS had not e
agreed on its teras,
-4/
The proposed Settle =ent Order provided that c e rtain provisions would become effective and binding on the parties if, within one year from the date the Court approved the Agreement, or such additional period as the parties actually. agreed to,.certain ev.ents had occurred.
5/
The Licensing Board granted NES's withdrawal of request for hearing in an order dated' April 30, 1982.
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MORGAN, LEWIS 5. 80CKlUS Richard E. Cunningham May 24, 1982 Page 5 that Order, NFS was obligated, inter alia, to request the Commission "to dismiss the pending -proceedings initiated by NFS relating to Change No. 31 to License No.
CSF-1, without prejudice to the initiation of further pro-ceedings if the Settlement Date does not occur within one year.
By letter agreement dated February 18, 1982, NYSERDA and NFS agreed that NFS would trans f er the West -
Valley facilities to DOE as soon.as DOE was ready to accept possession, and, effective on such transfer, NYSERDA accepted surrender of the facilities.
DOE assumed exclusive possession on February 25, 1982.
Thus, two of the condi-tions necessary for Change No. 32 to be implemented have occurred.
Standards for Issuance of a Show Cause Order.
NFS agrees with the Staff's deternination that t h'e Sierra Club petition does not meet the standards for a show cause order.
Under 10 C.F.R. S 2.202 an order to show cause shall "[a]llege the violations with which the licensee is charged, or the potential hazardous conditions or other facts deemed to be sufficient ground for the proposed action."
10 C.F.R. 5 2.206 allows any person to request the Director of Nuclear Material Safety and Safeguards to issue such an order provided that the request "shall specify the action requested and set forth the facts that constitute the basis for the request."
Thus, a request for a show cause order must meet a certain factual threshold before it need be considered b'v the Director of Nuclear Material Safety and Safeguards.
The Director is required to make an "i'nquiry appt.opriate to the facts as asserted."
Consolidated Edison Cocoany of New York (Indian Point, Units 1, 2, and 3), CLI-75-8, 2 NRC 173, 175 (1975).
"[H]e is not required to accord presumptive valid-ity to every assertion of fact, irrespective of its degree of substantiation.
Northern Indiana Public Service Co=canv (3ailey Generat!E5 Station, Nuclear-1), C L'I - 7 3 - 7, 7 NRC 629, 432 (1973).
" General allegacions that a particular action is n~eeded or certain objectives should be met are,
MORGAN, Lewis & BOCKlUS Richard E. Cunningham May 24, 1982
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Page 6 insufficient to provide an adequate basis for without more, relief under iO C.F.R. 5 2.206."
Metrooolitan Edison Connany (Three Mile Island Nuclear Station, Units 1 and 2),
DD-80-14, 11 NRC 581, 582 (1980).
The Sierra Club petition fails to ceet the factual threshold standard.
As will be discussed more completely below, all of its allegations are based on conjecture, with-out any factual predicate.
The Club's request for a show cause order is completely without. factual basis and there-fore does not satisfy the requirements of 10 C.F.R. S 2.206.
Furthermore, even if the Sierra Club had supported its allegations with some ' actual basis, S 2.206 is an icproper vehicle for the Club's request for a show cause order.
The purpose of a show cause order is to investigate license violations and hatardous conditions at a particular facility.
The Club's request can be fairly characterized as an allegation of license violations or hazardous not conditions at the West Valley facilities but rather as a challenge to the propriety of the Cc= mission's action.in issuing Change No. 32.
Such an allegation of improper Cocrission dect-sion=aking is beyond the purview of 9 2.206.
10 C.F.R.
S 2.206 =ay not be used "as a vehicle for reconsideration of is sues previ ously decided...."
Indian Point, suora, 2 NRC at 177; Marble Hill, suora, 10 NRC at o15, n.3.
Thus, as the Cortission has done, the Sierra Club's letter should be treated as a request for reconsideration of the Commission action issuing Change No. 32 rather than a request for a show cause order.
Since the Sierra CI.ub's contentions fail to support either type of request, however, the outcoce in either case should be the same.
w Soecific Sierra Club A11etations Tinine of Chance No. 32.
The Sierra Club ques-tions whether the Co==ission should have issued a license acendment which allows NF.S to be terninated as a titular
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licensee before DOE departs the West Valley sir.e at theThe ccapletion of the West Valley Demonstration Project.
Club see=s to be asserting that the Commission acted i= properly in issuing Change No. 72; however, the Club
MoacAN, LEWIS 5. BOCK!US Richard E. Cunningham May 24, 1982 Page 7 presents no reasons w[hy issuance of this change befor'e project termination was improper.
Furthermore, the Club asserts no license violation nor hazardous condition relat-ing to Change No. 32 which would nandate issuance of a show cause order.
It is'important to. keep in mind the status of UFS, NYSERDA and DOE as they relate to the West Valley facili-ties.
DOE now has exclusive possession of the facilities and is actively carrying out the~ West Valley Demonstration Proj ect.
When it co=pletes that project, DOE must turn the West Valley facilities over to NYSERDA, which will be obli-gated both under NRC License No. CSF-1, Changes No. 31 and surrender of the 32, and its agreement with DOE to accept West Vallev f acilities from DOE and to take the actions necessary to obtain any additional license amendments required by the Cocaission.
Under the provisions of Change No. 31, NYSERDA may reaccuire control from DOE only in accordance with technical specifications which the Commission deems nec'essary and DOE will remain in control of the West Valley proper.
f acilities until the Commission is satisfied that, if an NRC license is still required, NYSERDA meets the criteria neces-to cossess the facilities and to carry out any residual sary health and safety activities required at West Valley.
NFS, on the other hand, does not have the legal f
capability to resuae possession of the West Valley facili-ties.
Change No. 31 excludes NFS from possession of the NF.C-licensed West Valley facilities for the duration of the DOE project.
Furthernore, upon acceptance of surrender of l
the West Valley facilities by NYSERDA cn February 25, 1981, NFS' right to possession of the facilities ended.
j It also should be noted that in order to icolement the DOE project, DOE's contractor hired the NFS employees at West Valley and acquired (through NYSERDA) the equipnent used by NFS at the site.
Since the project arrangements assure continuity of legal and technical control of the facilities by DOE and NYSERDA, there is no reason why the Commisaion should have waited for project co=pletion before establishing the condi-tions f or removing NFS as a licensee.
If, af ter DOE proj ect
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MORGAN, Lewis 5. Bocx Us i
Richard E. Cunninghaa May 2L, 1982 Fage 3
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cocpletion, NYSERDA is required by, the Comaission 'to satisfy sore technical standards before reacquiring the facilities, the fact that NFS was still a licensee would in no way affect the ability of NYSERDA, or any other organization, to meet those standards.
Thus, the Commission properly found that Change No. 32 would entail no significant hazard consideration.
Tec'.nical and Financial Oualifications of NYSERDA.
The Sierra Cluo asserts that SYSERDA's :inancial anc technical qualifications nust be considered at a hearing before Change No. 32 beco=es effective.
Again, the Club presents no facts to substantiate this assertion, which seems to allege Coa-nission impropriety in issuing the license amendaent rather than violations by a licensee or existence of hazardous conditions.
The Sierra Club fails to identify any statutory or regulatory requirement for a hearing prior to the issuance of the license anendment in question.
This is understand-able since the acendment was issued in complete cc pliance uich applicable NRC regulations.
The Director of Nuclear Ma:erial Safety and Safeguards issued the anendnent pursuant to ;0 C.F.R.
5 50.91.
No: ice of issuance was published in the Federal Register in accordance with 10 C.F.R. 5 2.106.
No crior notice was re:uired because the Concission found tha': the acendment involved no significant hazards consid r-acions.
Thus, it is unclear upon what grounds :he Sierra Club bases its contention.
The Sierra Club also questions the Connission's conclusion that NYSERDA, as an agency of the State of New York, possesses sufficient institutional stabili:y and financial resources for any post-proj ect activities.
Agafn,-
however, the Club presents absolutely no grounds for ques-tioning the abili:y of NYSERDA to fulfill its con:ractual and license conat:ments.
NFS notes that the Waste Storage Agreenent between NFS and NYSERDA, entered into in 1963, con:e:placed that NFS =ight turn over the high-level liquid was:e to NYSERDA during-.the period of operation of the West Valley facilities, and in any event would do so upon expira-tien of tha: Agree =ent on December 3.1, 1980.
NFS subaits that in issuing License No. CSF-1 phe Commission (then AEC) considered and recognized : hat NYSERDA had a long-ters
MORGAM, Lewis & BOCKlUS Richard E. Cunningham May 24, 1982 Page 9 responsibility for the West Valley ~ facilities, and.had the capability to obtain the necessary financial and technical qualifications to possess the. West Valley facilities after-It completion or termination of its arrangements with. NFS.
is premature at-this time to reconsider NYSERDA's capability to obtain the necessary technical and financial qualifica-tions to assume responsibility for. these f acilities at some future time after completion'of the DOE project..
Even if the propriety 6f 'the Commission's action in issuing the amendment based on its conclusions as to NYSERDA's financial qualifications were an appropriate reason for requesting a show cause order under S 2.206, the Sierra Club has certainly failed to allege any. facts which
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would call the decision into question.
Unevaluated Safety Ouestiens: Possible License Violations.
The Sierra Club has utterly failed to present any factual basis for its " belief" that solid wastes were buried i= pro-The Sierra Club's perly in the NRC-licensed burial ground.the geology of the burial ground position seems to be thata survey by the New York State Geologi-is unclear and that cal Survey "may help clarify the geology...if the work is scientifically-based and done with integrity."
However, if the survey is done improperly because of "the biases of the New York State Geologic Survey," further surveys would be One nust assume that either the Sierra Club necessary.
fulfill believes the New York State Geologic Survey will not its lawful responsibilities or that the ' Sierra Club is hedging its bets in case the survey results do not agree with the Club's preconceptions.
a person requesting a show cause In any event, demonstrate "how the requested actions will 2
order aust Three Mile Island, suora, satisfy his particular concerns."
11 NRC at 582.
It is not enough to allege t' hat some proble=s may exist.
The person requesting a show cause order under S 2.206 must demonstrate "the nexus" between the Public Service alleged problems and the action requested.
(Marble Hill Nuclear. Generating Co= cane of Indiana. Inc c, Starton, Units 1 and 2), DD-79-17, 10 NRC 613, 615 (1979).
The Sierra Club has clearly failed to demonstrate Even if the Cluh's unsupported allegations such a nexus.
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,1 MORGAN LEWIS T. 80CKlUS Richard E. Cunninghan May 24, 1982
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4 were t rue, the issuance of Change No. '32 has no inpact on the health and safety issuer of such a situation.
After the conditions in Change No. 32 are met, NYSERDA will still be a licensee.
If prior license violations are detected at sone S'
future date, the Coc=ission will have a licensee to, turn to fj for correction of the situation.
Thus, release of NFS.as licensee would not affect any recedial activities at the Wes: Valley site necessary for public health and safety.
License Transfer / Termination.
The Sierra Club contends that the Commission 10 properly characterized Change No. 32 as a license amendment issued pursuant to 10 C.F.R.
S 50.91.
The Club asserts that it should have been categorized as a license transfer under S 50.80 and, further, that the condi-tions for license termination under ! 50.82 htve not been ccaplied with.
Again, the Si erra Club dogs' not allege a license violatien or hazardous condition which would appro-.
priately be the subject of a shew cause order.
Agiin, also, the allegations are incorrect.
License No. CSF-1 is not being transferred to a new licensee so as to fall within the provisions of 10 C.F.R. S 50.80.
Rather the roles of^:he already approved licensees are being redefined, as provi,ded for by the terns of the license.
License No.- CSF-1, paragraph 4.A, conte:-
plates that the Commission nay issue.an" amendment to the license at any time, because of changes in the rela:Lonships be: ween NFS and NYSERDA, to reflect "the future responsi-bili:ies of NFS and (NYSERDA] with respect to' satisfying Cc::ission regulatory recuirements.
Either li.censee may reques: the amendment.
a Change No. 31 substantially alt ert d then original.
roles of the co-licensees by authorizing transfer of exc142-
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sive possession of the Wes: Valley facilitier, by restrice-ing the authority and the obligations of the co-licensees,
and by directing that on ec=pletion of the DOE project they~
would, "as their in: crest aay appear." =ake a timely applica c
tion to the Concission for authority:to possess and use the f acili t y.
Change No. 32 merely recognizes tha't, once NFS surrendered and NYSERDA accep:ed the Res: Valley facilities, and the other conditions of Change Up. 32 have been net, NYSERDA has the sole obliga: ion. co/ apply for and be respon-sible for any license requiremen:s imposed by Commission
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i Richard E. Cunningham
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Pa'ge 11, with re'spect to possession and uselof the West Valley
' facLlities.
Thus, the licensees,_under the terms of their license, ap,propriately requested a license amendment and the Commission appropriately approved such an amendment pursuant p
to,5 50.91.
1 j
10 C.F.R. 5 50.82. applies to voluntary surrender t
- of a license coupled with dismantling of the facility by the' 1
Licensee.
By its terms 5 50.82 is inapproariate for the situation at West Valley where DOE was authorized and directed by Congress to decontaminate and decommission the i
West Valley f acilities, NYSERDA, as owner of the facilities,
i contracted to give exclusive possession to DOE, and NFS has J
no control or authority over those activities.
5 50.82, of course, does not limit the Commission's authority to terni-i nate a license but rather sets criteria and guidelines for q
1, such actions when the Com=ission determines that certain
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disposal and dismantling procedures by the licensee are necessary to protect public health and safety.
In this 4
instance, DOE, under the West Valley Act, has the responsi-bility for disposal and dismantling of the Vest Valley facilities in accordance with Commission. requirements.
4 Danaerous Licensing Precedents.
The Sierra Club's argument DOE to take possession of and decommission the allowin!acilities relieves the licensees of decommis-that Vallev West sioning re'sponsibilities is completely irrelevant.-
DOE's deccmmissioning activities carry out the Congressional nan-4 dite established in the West Valley Demonstration Proj ect I
l
- Ac t.
The Sierra Club seems to fear that Change No. 32 will somehow open a floodgate of DOE intervention in the i
deccomissioning of nuclear facilities which will relieve ^
licensees of their decommissioning responsibilities.
It is l
impossible to imagine DOE assuming deconmissioning responsi-bility for any privately owned nuclear facilities without l
being directed to do so by law.
If the Sierra Club feels l
that such a law would be ill-conceived then the place to challenge it, if and when it would ever be considered, is In any case the decommissioning of-the before Congress.
Valley f acilities is not a "very bad precedent", but West rather a unique situation which Congress decided to deal
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4 with in a particular way.
MORGAN,Ltuns & BoCKlUS Richard E. Cunningha:
May 24, 1982 Page 12 Public Interest Not Served.
This contention is a conclusion based on the contentions discussed above and, for the rea-Simply stated, the sons already stated, is incorrect.to no valid public health or safety Sierra Club can point interest which would be served if Change No. 32 were Furthermore, the Commission validly issued rescinded.
If Change No. 32 in accordance with Commission regulations.
the Sierra Club believes that these regulations are invalid, this petition to the Director. is an inappropriate method to chsllenge them.
Incrocer Notice.
The Sierra Club's contention that it was entitled to prior notice of Change No. 32 because it was a party to an earlier construction permit proceeding is entirely without = erit.
That proceeding was terminated in 1977 at the direction of the Co==ission, see, Mixed oxide Fuels, CLI-77-33, 6 NRC 861, 862 (1977).
sierra.cluo claims served with the order carninating the pro -
enat it was not ceeding.
Even if true, this does not change the fact that the proceeding was terninated.
In any case, the Sierra Club certainly had the opportunity to comment on the renoval of NFS as licensee long before Change No. 32 was issued.
NFS proposed a on October 6, 1981 which would have ter=i-license amendaent nated NFS as licensee !ctediately upon DOE assuming posses-Valley facilities.
Notice of the proposed sion of the West acendment was published in the Federal Register on November 1981 and copies of the proposal were =ade available for 13, public inspection in the West Valley area.
F r whatever reason, the Sierra Club chose not to concent on the proposal.
over 4 conths af ter it first had the opoortu-
- Now, on re: oval of NFS from License No. CSF-1,'
nity to comment the Sierra Club has belatedly conjured.up a' number of allowing such recoval.
In the alleged reasons for not
=eanti=e, however, NFS has substantially changed its post-tion under the assumption that it could be re=cved from the license before DOE proie.ct completion.
While the Sierra Club has suffered no orejudice bv the issuance of Change No. 32, for che Cornissich to now m
reconsider Change No. 32 would be' extremely prejudicial to l
MORGAN, LEVnS & BOCKluS s
Richard E. Cunningham May 24, 1982 Page 13 NFS since-this amendment was relied upon by NFS in ' agreeing to the court-approved Settlement Order with NYSERDA, in withdrawing its request for a hearing on Chrage No. 31, and in voluntarily transferring exclusive possession to DOE.
Commission acceptance of the specific conditions in Change No. 32 for termination of NFS' responsibilities as a Commis-sion licensee was a necessary prerequisite for those NFS actions.
Had the Commission. questioned the application for Change No. 32, or had anyone raised a question about termi-nation of NFS as licensee before.' project completion, NFS would have insisted on caintaining the status quo at the West Valley facilities until those questions were resolved.
Conclusion NFS submits that the Sierra Club has failed to advance any facts as required by 10 C.F.R. 5 2.206, which' would warrant a show cause order.
In fact, the issues presented by the Club, questicning the propriety of the Commission's action in issuing Change No. 32, are not even properly raised under 10 C.F.R. S 2.202.
Therefore, the Commission acted appropriately in not considering the Sierra Club's letter as a valid petition for a show cause order.
Furthermore, the Sierra Club has presented no valid grounds to justify Commission reconsideration of Change No. 32.
The amendment was properly issued in accord-ance with valid Commission regulations.
No public health, safety, or interest issues have been presented which would be alleviated by rescission of Change No. 32.
Therefore, it would be entirely inappropriate for the Commission to recon-sider the issuance of this valid license amendment.
Sincerely
&llaz wg 61
/
- 0. S. Hiestand Attorney for Nuclear
-Fuel Services, Inc.
muicu ainesa vc n.cnica NUCLEAR REGULATORY C0c1ISSION '
In :he Matter of
)
Docket No. 50-201
)
Provisional Operating NUC_IAR FUEL SERVICES, INC.
)
License No. CSF-1 CERTIFICATE OF SERVICE I hereby certify tha: the foregoin5 has been servad as of this date by personal delivery or first class mail, postage prepaid, to the following:
I Richard E. Cunningha=, Director Neil J. New=an, Escuire Di-ision of Fuel Cycle and Material Safety Nuclear Fuel Services, Inc.
Office of Nuclear Ma:erial Safety and 6000 Executive Boulevard Safeguards Rockville, Maryland 20852 U.S. Nuclear Regulatory Co==ission Washing:en, D.C.
20555 Warren E. Berghair, Jr. Esquire Office of General Counsel Lawrence Brenner, Chairman U.S. Depar:=ent of Energy Ad #nistra:ive Judge 1000 Independence Avenue, S.W.
A:::ic Safety and Licensing Board Washington, D.C.
20587 U.S. Nuclear Regulatory Co==ission Washington, D.C.
20555 Sierra Club Attn.: Dr. Marvin Resnikoff-Dr. Jerry Harbour 78 El= wood-Avenue AF 'nistrative Judge Buffalo, New York 14201 A:rmic Safe:y and Licensing Board U.S. Nuclear Regula: cry Co==ission Counsel for NRC Staff Usshington, D.C.
20555 Office of :he Executive Legal Director Mr. Pe:er A. Morris U.S. Nuclear Regulatory Administrative Judge Co==ission Atr=i: Safety and Licensing Board Washing:ca, D.C.
20555 U.S. Nuclear Regulatory Co==ission Washington, D.C.
20555 Docketing and Service Section Office of :he Secretarv Carrine J.
Cle ente, Esquire U.S. Nuclear Regula:or,f Co==issi General Counset Washing:ca, D.C.
20555 New Y:rk State Energy Research Inf Development Authority Atomic Safety and Licedsing Boa:
Two Rockefeller Plaza Panel -
Alh any, N.Y.
12223 U.S.
Nuclear Regul2:ory Cc==issi t
Washing:en, D.C.
20555 Philip H. Gi:len, Esquire White an, Os:er:an & Hanna A cnic Safety and Licensing
- Appeal Panel.
99 "ashington Avenue Albany, NY 12210 U.S. Nuclear Regulatory Coc=issi Washing:cn, D.C.
20555 4
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- N D n. _ _, : v..,
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,ca, OrrisjS. Hies:an:
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s A :orney for Nuclear Fuel Services l
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. _ _ _ _ _ _. _.,., ~. _. _ _ _ -.. _,,
4 jq UNITED STATES E
( ' )g NUCLEAR REGULATORY COMMISSION g,g l
WASHINGTON, D. C. 20555 N;*v/
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Docket No. 50-201 JUN 4 1982 Sierra Club ATTN: Dr. Marvin Resnikoff Technical Consultant 78 Elmwood Avenue Buffalo, New York 14201 Gentl emen:
This letter is ir reference to your letter, dated March 26, 1982, concerning the issuance of Change No. 32 to Provisional Facility Operating License No. CSF-1. As stated in my letter to you, dated April 26, 1982, we have determined that your letter constituted a request for reconsideration of the issuance of Change No. 32.
In connection with your request I requested the views of the co-licensees.
I have enclosed a copy of the responses of each co-licensee with this letter for your information and consideration.
If, upon your consideration of the enclosed infonnation, you have any additional information you wish to provide, please do so within fifteen days of the date of this letter.
Sincerely, 17 Ad ohn G. Davis, Director Office of Nuclear Material Safety and Safeguards
Enclosures:
1.
Response from NFS 2.
Response from NYSERDA t
yewca f s