ML20065B020
| ML20065B020 | |
| Person / Time | |
|---|---|
| Site: | West Valley Demonstration Project |
| Issue date: | 09/09/1982 |
| From: | Bross I AFFILIATION NOT ASSIGNED |
| To: | |
| References | |
| ISSUANCES-OLA, NUDOCS 8209140216 | |
| Download: ML20065B020 (7) | |
Text
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.p DOCHETED USNRC .
UNITED STATES OF AMERICA ,
NUCLEAR REGULATORY COMMISSIO gg gg BEFORE THE ATOMIC SAFETY AND LICENSING BOARD CFFICE OF SECRETAF3
.DOCHETitiG & SERVICC In the Matter of )
)
NUCLEAR FUEL SERVICES, INC. )
)
AND ) Docket No. 50-201 OLA
)
NEW YORK STATE ENERGY RESEARCH )
AND DEVELOPMENT AUTHORITY )
(Western New York Nuclear )
Service Center) ) .
The material in the ruling of John G. Davis dated August 23, 1982, particularly in section G (Denial of Public Review) can be read as an admission that I was denied due process by the NRC handling of Change No. 32 (and so was the Sierra Club) .
The motivation for the actions of the NRC staff in the handling of Change No. 32 and for the subsequent NRC rulings is made clear in the statement on page 22 with ref.erence to the action of the staff in issuing Change No. 32 nine working days after receipt of the application:
"Indeed, had this action not been taken, the commencement
! of the demonstration project could have been' set back indefinitely."
Earlier it is stated:
"Further, it appeared to the staff that issuance of Change No. 32 could avoid further delay in the transfer of the facility to DOE."
The staff considered that it had a charge to expedite by any means possible the transfer of the facility to DOE in accordance with the Commission decision on Change No. 31 which " emphasized that the 8209140216 820909 PDR ADOCK 05000201 350
solidification program at West Valley should not be delayed." With this -
top priority given to implementing the-transfer of West Valley to a sister federal agency, other responsibilities such as the provision of due process, following NRC regulations, or protecting the public health and safety got short shrift.
The failure to provide public notice and the denial of public review are part of the effort to bypass mandatory NRC procedures to accomplish the transfer to DOE. As noted on page 20, public notice was required if a "significant hazards consideration" was involved. At this time, in Dock'et No. 50-201, there was extensive material to support my request for a hearing on Change No. 31, a hearing specifically on the "significant hazards consideration" issue. As NRC admits, "The new application could properly have been characterized as having the same objective as the earlier one", so the evidence of hazard to the health and safety of Western New Yorkers applied to Change No. 32 as well as Change No. 31. Since this was an issue before the administrative judges, a Staff Safety Evaluation Report which was hastily prepared and did not consider the facts that had been previously submitted by me to Docket No. 50-201 OLA is questionable on both substantive and procedural grounds.
Alleged statements in the staff report which " explained why the requested amendment did not involve a significant hazards" provide only a lame after-the-fact excuse for the failure of NRC to give the mandatory
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public notice on Change No. 32.
In an effort to cover up its malfeasance, NRC does not stop short of outright falsification of the historical record. Thus it l
l l
asserts that "Over the next three months, neither the Sierra Club nor any other member of the public gave any indication of any interest in the subject matter of the application." Unless NRC considers me a non-person, it has simply ignored what is in the record for Docket No. 50-201 OLA, including a specific request for a public hearing on Change No.
- 32. The argument that "Under these circumstances, bearing in mind the absence of response to the earlier announcement in the Federal Register, it was entirely reasonable to take action without further notice" is a flawed alibi for NRC's failure to follow mandatory procedures for public notice.
Consequently, the claim on the ruling of August 23, 1982 that "the issuance of Change No. 32 is in all respects in accordance with applicable laws and regulations" is patently false.
There are two theories that can account for the peculiar circumstances in the August 23 ruling. One is a conspiracy theory _and the other is a miracle theory.
The action of the staff in issuing Change 32 nine working days after- the receipt of the application--in an agency that takes six months to dot an "i"--might have been a miracle. On the other hand it might have been the result of secret discussions involving NRC, DOE, and Senator Patrick Moynihan (who has claimed credit in his campaign litera-ture for brokering this arrangemont) .
To judge the relative likelihood of the miracle and conspiracy theories, it is necessary to outline the scenario for the latter:
e e -4 The West Valley Act, the circumstances leading up to the -
issuance of Change No. 32, the August 23, 1982 rulings, are all in the name of "public health". But if "public health" is really the issue, why has NRC consistently refused to permit a public hearing on this matter and why did it take secret and hasty action to evade the mandatory public notice that could have led to such a hearing? This action is hardly consistent with an interest in protecting the public health, but it makes sense if the purpose is to protect the health of the nuclear industry.
DOE, NRC, and Senator Moynihan have a public record of great solicitude for the health of the nuclear industry but poor public records of actions to protect the public health. Hence the conspiracy scenario would be the following. The West valley Act, the scheme originally set up by Senator Moynihan to bail out the nuclear industry from another waste disposal fiasco was coming apart because of NSF intransigence.
This bail-out of the nuclear industry at the expense of U.S. and New j York State taxpayers was rescued by Change No. 32. The conspirators could not afford to have a public hearing where the facts might come out, so NRC procedures and due process were dispensed with. The August l
23, 1982 rulings are a post-hoc rationalization of the the conspiratorial decisions and there really isn't a 9-day-miracle.
l If the conspiratorial theory seems more likely than the miracle theory, then it follows that it will be impossible to get due process or to protect the health and' safety of the citizens of Western New York within the NRC quasi-judicial system since NRC is a party to the conspiracy
against the public health. The only hope, then, is for-the federal .
courts to take jurisdiction in this matter since constitutional issues of civil rights and due process are involved in this denial of a public hearing on Change No. 32.
Respectfully submitted,
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[rwin D.J. Bro &, 'Fh.D.
DATED: September 9,1982 1
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DOCMETED USHRC.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE 0F SECRETAs .-
BEFORE THE ATOMIC SAFETY AND LICENSING0 ggg tg ERVICf.
In the Matter of )
)
NUCLEAR FUEL SERVICES, INC. )
)
AND ) Docket No. 50-201 OLA
)
NEW YORK STATE ENERGY RESEARCH )
AND DEVELOPMENT AUTHORITY )
(Western New York Nuclear )
Service Center) ) .
CERTIFICATE OF SERVICE I hereby certify that the foregoing has been served as of this date by first class mail, postage prepaid, to the following:
Lawrence Brenner, Chairman Philip H. Gitlen, Esquire Administrative Judge Whiteman, Osterman & Hanna Atomic Safety and Licensing Board 99 Washington Avenue U.S. Nuclear Regulatory Commission Albany, N.Y. 12210 Washington, D.C. 20555 Dr. Jerry Harbour Orris S. Hiestand, Esquire Administrative Judge Morgan, Lewis & Bockius Atomic Safety and Licensing Board 1800 M Street, N.W.
U.S. Nuclear Regulatory Commission Washington, D.C. 20036 Washington, D.C. 20555 Mr. Peter A. Morris Warren E. Bergholz, Jr., Esquire 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 Carmine J. Clemente, Esquire James R. Wolf General Counsel Counsel for NRC Staff New York State Energy Rdsearch Office of the Executive Legal and Development Authority Director Two Rockefeller Plaza U.S. Nuclear Regulatory Commission Albany, N.Y. 12223 Washington, D.C. 20555
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- 1 Docketing and Service Section Atomic Safety and Licensing .
Office of the Secretary Appeal Panel ,
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Atomic Safety and Licensing Board Panel Dr. Marvin Resnikoff U.S. Nuclear Regulatory Commission Technical Consultant Washington, D.C. 20555 Sierra Club Radioactive Waste Campaign 78 Elmwood Avenue Buffalo, New York 14201 f-f A dir.'N N .' "
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I Bross, Ph-D.
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DATED: September 9, 1982 /
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