ML20054M182
| ML20054M182 | |
| Person / Time | |
|---|---|
| Site: | West Valley Demonstration Project |
| Issue date: | 07/08/1982 |
| From: | Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Bross I AFFILIATION NOT ASSIGNED |
| References | |
| ALAB-679, ISSUANCES-OLA, NUDOCS 8207120069 | |
| Download: ML20054M182 (12) | |
Text
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e UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION
.j
'T b
j ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
l Thomas S.
Moore, Chairman ggg g p9pgZ Dr. W. Reed Johnson Gary J.
Edles i
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In the Matter of
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NUCLEAR FUEL SERVICES, INC.
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and UEW YORK STATE ENERGY
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RESEARCH AND DEVELOPMENT
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I AUTHORITY
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Docket No. 50-201 OLA
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(Western New York Nuclear
)
Service Center)
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Dr. Irwin D.J.
Bross, Buffalo, New York, pro se.
y Messrs. Carmine J.
Clemente and Howard A.
- Jack, Albany, New York, for licensee New York State Energy Research and Development Authority.
Messrs. George L.
Edgar and O.S.
- Hiestand, Washington, D.C.,
for licensee Nuclear Fuel Services, Inc.
Mr. Warren E.
Berghol z, Jr., Washington, D.C.,
j for amicus curiae United States Department of Energy.
1 Mr. James R.
Wolf for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER 4
July 8, 1982 (ALAB-679)
I.
Background
1 This case involves an appeal by Dr. Irwin D.
J.
Bross of a Licensing Board decision denying his request for a 8207120069 820708
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hearing on an amendment to the operating licen'e for the s
Western New York Nuclear Service Center.
Nuclear Fuel Services, Inc. (NPS) and the New York State Energy Research and Development Authority (the State) are co-licensees under a license issued in 1966 by the 1
i Atomic Energy Commission for the operation of a spent nuclear fuel reprocessing and radioactive waste disposal center in West Valley, New York.
In general, the State is licensed as owner and lessor of the site and NFS is licensed to operate the facility and possess radioactive materials and waste.
The co-licensees' rights and obligations vis-a-vis one another are set forth in a lease and other agreements. -1/
Reprocessing activities at West Valley were suspended in 1972 but substantial quantities of liquid high-level radioactive waste remained at the site.
By 1976 NFS had decided to withdraw from the reprocessing business and indicated its intention to turn over the facility to the State.
Pursuant to the license, however, NFS remained responsible for assuring that the terms of the license were observed until appropriate amendments reflecting the future responsibilities of the co-licensees were obtained.
Because of continuing disputes between the co-licensees, no such
_1/
The initial term of the lease between the State and NFS expired on December 31, 1980.
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amendments were sought and the high-level waste remained at West Valley.
The State turned to the Federal government for assistance.
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To assist the waste disposal effort, Congress in 1980 enacted the West Valley Demonstration Project Act, Pub.
L.
No.96-368, 94 Stat. 1347 (1980), authorizing the Department of Energy (DOE) to carry out a demonstration project involving solidification techniques.
To this end, the Act provides that the State will make &vailable to DOE the necessary facilities and high-level waste for completion of the project.
It further requires that the State and DOE i
jointly seek from the NRC a license amendment authorizing the transfer of the facilities.
Before undertaking the project, the Act requires DOE to develop a plan for-solidification, waste removal, and decontamination, and to i
l submit that plan to the NRC for review.
DOE must (i) l publish the plan in the Federal Register for public inspection, (ii) publish a notice of the receipt of the NRC's comments and make those comments available for public inspection, and, (iii) publish an explanation in the event DOE rejects any revisions the NRC might suggest.
Review of the plan "shall be conducted informally by the Commission
_2/
A brief history of the West Valley project is set out in Senate Report No.96-787, 96th Cong., 2d Sess.
(1980).
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4 and shall not include nor require formal procedures or actions by the Commission pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, or any other law." 3/
In addition, the statute requires DOE to hold public hearings in the vicinity of the center to inform the local residents about the project and entertain their comments.
Lastly, the Act requires DOE to prepare environmental impact analyses in accordance with the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C.
4321.
The instant case involves two license amendments designed to permit the transfer of control of the center to DOE and to resolve the outstanding disputes between the State and NFS.
The first amendment -- so-called Change 31
-- was jointly sought by the State and DOE to authorize the transfer of the West Valley facility to DOE, subject to certain conditions.
Under Change 31, DOE is to have exclusive possession until the licensees reacquire the facility at the completion of the project.
NFS objected to the amendment on the ground that it left NFS with residual responsibility under its portion of
_3/ West Valley Demonstration Project Act, supra, S2 (c).
T o
5 the license without any means of supervising DOE's activities during that agency's temporary administration of the facility.
The Commission issued the amendment. NFS thereafter requested a hearing on it and sought to postpone its effectiveness pending the hearing.
Dr. Irwin D.J.
Bross, Director of Biostatistics at the Roswell Park Memorial Institute, the appellant here, also sought a hearing on Change 31 to consider what he characterized as the " misguided DOE efforts to clean up the 30,000,000 curies in Tank 8D2 [that] could endanger the health and safety of hundreds of thousands of Western New Yorkers.
." --4/
The Commission refused to stay the effectiveness of Change 31 but ordered that a Licensing Board be established to conduct a hearing on NFS' contentions regarding the-amendment, and to rule on Dr. Bross' request.
In an attempt to resolve its disagreement with the State, NFS brought suit in federal court to compel the State to accept possession of the facility.
The State thereafter sued NFS in state court seeking to compel NFS to continue to maintain the low-level storage facilities that are unrelated to the DOE project.
TPe state court action was removed to the federal court and consolidated with NFS' suit.
At that
_4/
Letter of Irvin D.
J.
Bross to Sam Chilk (Oct. 16, 1981).
6 point, the State modified its position and requested partial summary judgment to require NFS to vacate the high-level waste portion to the facility to DOE.
On October 16, 1981, the court granted the State's motion for partial summary judgment and ordered NFS to vacate the high-level waste portion of the facility. -S/ The court specifically declined, however, to decide the issue of residual responsibility.
The court of appeals reversed and ordered all matters set for trial.
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i In the wake of the court decisions, NFS, with the support of the State, sought an additional amendment which would terminate NFS' responsibilities as a licensee.
After finding that the amendment -- so-called Change 32 --
involved no significant hazards, the Commission issued the amendment terminating NFS' responsibilities under the i
license upon (i) the State's acceptance of NFS' surrender of the facility, (ii) DOE's assumption of exclusive possession,
--5/
The State sought to evict NFS from the 158.8 acres on which the high level liquid wastes and reprocessing 3
j facilities are located; the State apparently wants NFS to retain possession of and responsibility for the low-level burial site that is unrelated to the DOE project.
_6/
New York State Energy Research and Development Agency v.
Nuclear Fuel Services, Inc., CIV-81-18E
('W.D.N.Y.
Oct. 16, 1981), rev'd No. 81-7736 (2d Cir. Dec.
8, 1981).
s j
7 and (iii) the arrival of the final settlement date I
terminating the pending litigation, now scheduled for early 1983.
DOE assumed exclusive possession of the facility on February 25, 1982.
1!
In view of the issuance of Change 32, NFS withdrew its earlier request for a hearing.
Dr. Bross, howc er, filed with the Licensing Board a request for a hearing in connection with Change 32, reiterating in summary form his claim earlier raised in connection with' Change 31 that DOE's conduct of the project will cause hazards. -8/
On April 30, 1982, the Licensing Board approved NFS' motion to withdraw its earlier hearing request and denied a
Dr. Bross' two requests.
LBP-82-36, 15 NRC With respect to the latter, it found that the two amendments were i
"related" within the meaning of 10 CFR 2. 717 (b) so that it could consider Dr. Bross' hearing request on Change 32 even though the Board had been explicitly empowered to review 7/
DOE's assumption of control was made effective pursuant to Change 31.
As noted above, Change 32, although issued, is not yet fully effective.
Until then, NFS remains a licensee.
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_8/
Dr. Bross' February 16, 1982 letter requesting a hearing states, in part: "Certainly the issues involving the public health and safety of the citizens of Western New York that I had previously raised before the Board apply with even more force to an amendment that would accelerate the onset of these documented j
hazards."
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8 only the request for a hearing on Change 31. 'After an analysis of the language and legislative history of the West Valley Act, the Board concluded that the statute precludes any NRC hearings such as those sought by Dr. Bross with respect to DOE's conduct of the project.
Id. at __ (slip opinion at 21).
Dr. Bross appeals the denial of his request for a hearing on Change 32. -9/
Although the arguments contained in his brief are far from clear, Dr. Bross accepts the denial of his hearing request on Change 31, i.e.
the Board's conclusion that the West Valley Act precludes the Commis-sion's formal evidentiary examination of DOE's waste solidi-fication activities.
He argues, nonetheless, that the Commission may examine Change 32 in a formal hearing because
_9/
Our decision is narrowly limited to the issue presented on appeal, i.e., whether Dr. Bross is entitled to a hearing with respect to_ Amendment 32.
For example, we assume, without deciding, that Changes 31 and 32 are "related" within the meaning of 10 CFR 2.717(b) so that the Licensing Board had jurisdiction to consider Dr.
Bross' hearing request on Change 32.
Similarly, we express no view on the question of whether the West Valley Act subjects DOE to any of the licensing provisions of the Atomic Energy Act.
See generally 10 CFR 50.11 (b).
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9 that change does not directly involve DOE as a principal.
l Because Change 32 by its terms merely resolves various matters between the co-licensees NFS and the State, but does not affect DOE directly, Dr. Bross contends that this amendment may be used as the vehicle for holding a hearing on issues involving the public health and safety, including the fitness of DOE to have control of what he describes as "a very tricky clean-up operation (much worse than TMI-2)." 10/
Failure to grant the requested hearing, I
Dr. Bross believes, deprives him and others in western New
-York of financial and health protection without due process.
l The State, NFS and the NRC staff, as well as the amicus i
l i
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l 10/
Appeal Brief of Dr. Bross (May 7, 1982) at 4.
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10 curiae DOE, support the Licensing Board's result. We affirm. 11/
II. Analysis We agree with the Licensing Board's conclusion that, in light of the West Valley Act which limits NRC review of DOE's plan to informal, consultative procedures, the
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DOE filed a motion to submit a brief as an amicus in accordance with 10 CFR 2.715(d).
We granted the motion but Dr. Bross asks us to reconsider.
He argues that DOE's interest is sufficiently direct to require it to participate as a full party.
We disagree.
" Amicus curiae," strictly translated from the Latin, means
" friend of the court," a definition intended to distinguish that kind of participant from the party advocate.
Such a participant assists the tribunal in resolving matters of general public import or insures a complete presentation of difficult issues so that a proper decision is reached.
Alexander v.
Hall, 64 F.R.D.
152, 155 (D.S.C. 1974).
We allow amicus.
participation where we believe it will assist our resolution of the issues and not prejudice the rights of the parties.
- See, e.g.,
Consumers Power Company (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312, note 2 (1981).
As a practical matter, however, there is no bright line between the role of an amicus and that of a traditional party.
Amici sometimes have some interest in the outcome of a case; often that interest borders on, or even overlaps, that of a party.
See generally, United States v. Barnett, 376 U.S.
- 681, 737-739 (1964) (Goldberg, J.,
dissenting); and New England Patriots Football Club, Inc. v. University of Colorado, 592 F.2d 1196 (1st Cir. 1979).
At times that interest may be such that the tribunal refuses to allow amicus participation.
Alexander v. Hall, supra.
This is not such a case.
Although DOE is plainly not a wholly disinterested party, Dr. Bross has not been prejudiced by DOE's participation and our substantive resolution of Dr. Bross' appeal makes DOE's participation as a full party unnecessary. In such circumstances, DOE's participation as an amicus is proper.
Upon reconsideration, we affirm our earlier ruling.
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11 Commission may not explore DOE's administration of the waste solidification project in a formal evidentiary hearing through review of Change 32 to which DOE is not a party.
We cannot, in other words, use indirect means to undertake the type of evidentiary examination that Dr. Bross agrees we cannot undertake directly.
This conclusion does not result in any deprivation of Dr. Bross' due process rights.
Congress has decided to substitute special procedures administered by DOE for the ordinary NRC hearing procedures in connection with the West Valley project. ---12/
DOE's brief indicates that Dr. Bross received a copy of its draft environmental impact statement, along with an announcement of the public hearing conducted by DOE and that, following the hearing, Dr. Bross submitted written comments that are currently under review by DOE.
His substantive health and safety concerns will thus be 12/
The House Commerce Committee noted that the legislation specifically required the DOE Secretary to hold public hearings in the vicinity of the Center to inform the residents of the area of the activities proposed and to receive their comments on the project.
The Committee explained that it expected that the Secretary "will afford interested members of the public every opportunity to participate in a meaningful manner at each stage of the process and that such public hearings will provide a useful forum for addressing public concerns."
It also indicated its expectation that DOE would fully comply with all NEPA requirements.
H.R.
No. 96-1100, Part 2, 96th Cong., 2d Sess. 19-20 (1980).
I e
I 12 evaluated.
Dr. Bross may seek judicial relief if he believes that DOE has failed to fulfill its responsibilities under NEPA or the West Valley Act.
The Licensing Board's order denying Dr. Bross' two hearing requests is affirmed.
It is so ORDERED.
FOR THE APPEAL BOARD
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___LJ
- A Barbara A. Tompkins
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Secretary to the Appeal Board
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