ML19210D170
| ML19210D170 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 11/05/1979 |
| From: | Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7911200614 | |
| Download: ML19210D170 (8) | |
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UNITED STATES OF AMERICA p
NUCLEAR REGULAIORY COMMISSION usnae
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NOV 7197933 BEFORE THE COMMISSION una cf tb Secretary Docketi;:g & Senice 17 Brwch In the Matter of
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NUCLEAR ENGINEERING COMPANY, INC.
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Docket No. 27-39
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(Sheffield, Illinois Low-Level
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Radioactive Waste Disposal Site)
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NRC STAFF'S RESPONSE TO NEC0'S SECOND SUPPLEMENT TO ITS MOTION FOR RECONSIDERATION NEC0 has again supplemented its motion for reconsideration of the Commission's Memorandum and Order of June 6,1979, and Notice of Hearing of the same date in this proceeding. S The Staff maintains that no valid ground is set forth for such reconsideration and that the supplement is not probative of any issue pertinent to the validity of the Commission's actions of June 6,1979.
The Commission Memorandum and Order affirmed the Director of the Office of Nuclear Material Safeguards and Safety's imediately effective show cause order of March 20, 1979, which set for hearing the following issue:
Whether NECO may unilaterally terminate License No.
13-10042-01 for activities at Sheffield.
SBy Order of October 23, 1979, the Commission accepted this motion to supplement, and granted the Staff 12 days to reply thereto if it wished.
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.i 2-It stated that NECO is ordered to show cause why it should not resume its respcnsibilities and obligations under that license. The Show Cause Order further provided that in view of the importance to the public health and safety of required monitoring and maintenance at the Sheffield site and NECO's willful acts in seeking to terminate its license without authorization, the Show Cause Order was made imediately effective requiring NECO to resume its responsibilities under the license until further order of the Commission.
As a predicate for this action, the Show Cause Order recited that NEC0 lacked authority to unilaterally terminate its license; that by letter of March 8, 1979 NEC0 had stated it was terminating its license and stopping all its activities at Sheffield; that under the terms of the license NEC0 was obligated to provide security, maintenance and monitoring of the site; and that NRC inspection had confirmed that NECO had stopped these activities. As legal basis for the Show Cause Order, and the finding that NECO could not unilaterally terminate its license and leave a site where it had buried low-level nuclear waste the Director cited sections 2(d), 53, 62, 81,161(b),183, and 184 of the Atomic Energy Act (42 U.S.C. 2012(d), 2073, 2092, 2111, 2201(b), 2233, and 2234) and the Commission's regulations (10 CFR 2.107, 30.34(e), 30.37(b), 30.41(c), 40.el(c),
and 70.42(c)).
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The Commission in its Memorandum and Order of June 6,1979, found that there was the requisite basis in the Director's order for understanding the grounds of his decision.
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. It stated the paramount consideration in the Comission's licensing actions is safety.
It pointed to the requirements on NECO in its license for providing security, maintenance and monitoring of the site, and how NEC0's action in seeking to unilaterally teminate its license and in abandoning the site ended these activities and could reasonably be expected to lead to off-site exposure of persons to radioactivity.
It recited the unrebutted evidence that NEC0 had abandoned the site; that tne security fence was in need of repair; that buried waste was exposed in sinknoles; and that NEC0 was not monitoring sumps and surface water runoff.
It further found that under Comission regulations and under general law, NEC0's conduct in purposefully leaving the Sheffield site and the possible consequences of that action provided the basis for an imediately effective order mandating that NEC0 return to the site until it could be detemined in hearing whether NECO could unilaterally terminate its obligations under its license. The Commission then set for hearing the issue--
whether NECO can unilaterally terminate License No.
13-10042-01' for activities at Sheffield without affirmative action by the Comission NEC0 now seeks to again supplement its motion for reconsideration of the Comission action affiming the immediate effectiveness order--by " newly discovered" documents which it claims show that the Comission formerly detemined that buried low-level radioactive waste is no longer " possessed."
It says that for this reason the Commission is estoppec' from pursuing this ; natter and this proceeding should be dismissed.
For the reasons set forth below, the Staff does not believe that the " newly discovered" evidence provides a legally sufficient basis for reconsideration by the Comissions df its order.previously entered'in this matter, or a basis for concluding that the Comission is estocoed from conducting further proceedings in this action.
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_4-First, it should be noted that the cited writings do not purport to set out Commission policy, but only thoughts and questions the Staff suggested in the preliminary consideration of a deep salt mine for the b'urial of waste.
I Next, the documents cited do not reflect any Staff or Commission policy providing that burying radioactive waste automatical}y relieves a licensee of possession or responsibility for that material.
Rather, the first document relied on by the Licensee, ~" Enclosure 1," only states that:
If the facility is a disposal facility, the above limit would apply to the wastes stored above ground.
Facility utilization plans and procedures for sealing tunnels may also have to be considered in determining when SNM is finally disposed of and no longer in the licensees possession.
If the facility is a retrievable storage facility, all material in storage (above and below ground) is considered to be in the licensee's possession.
plainly it is contemplated that a licensee may put ma?erial in a disposal facility and still have responsibility for that material. As the writing says--
plans and procedures may also have to be considered so that material put in the ground can be determined to be finally disposed of and no longer in the licensee's possession. Thus, this Staff. document concerning.the storage of waste in deep salt mines is not probative of ConTntssion poltey on whether NECO had responsibility for the waste it buried in the shallow trenchesJat.Sheffield.' U
/ The recognition in the paper that the impacts of storage and disposal may 2
be comparable, also shows no intent to relieve a licensee of its responsi-bilities merely because it buries radioactive material.
I3/3 1^,3 Similarly " Enclosure 2" is not probative of NEC0's duties under its license.
The Comission license to NECO as we have indicated in previous filings was granted on the knowledge that NEC0 had a 99-year lease for the land for the facility.
The arrangements between the State of Illinois (which does not have an NRC license for Sheffield) and NECO, is not probative of NEC0's duties to the NRC under NECO's NRC license. Moreover, the suggestion in the documents that the applicant provide a decommissioning plan and estimate of costs of decommissioning, shows that the applicant will bear responsibilities for the material and the site even after the material is buried.
Certainly the Staff questions quoted cannot be used to support any theory that NECO could escape responsibility by mailing back its license and abandoning the site.
On the basis of these documents NEC0 has argued that the Commission is estopped from trying to make NECO meet the responsibilities the Staff believes NEC0 has under its license and under the law.
As we have shown,the documents on which NEC0 precises its arguments do not support its assertions.
Moreover, there can be no estoppel against the government in this situation.
See Feaeral Crop Insurance Corp. v. Merrill, 332 U.S. 380, 384 (1947); Utah Power & Light Co. v. United States, 243 U.S. 389, 409 (1917). The law requires, as we have detailed and as here pertinent, that controlled material may not be transferred from ones control or abandoned. A license may not be disposed of without Commission approval.
The regulations of the Commission similarly continue responsibilities under a license until the Commission relieves the licensee of such responsibility.
Thus, as a matter of law there can be no estoppel against the Staff's action in seeking to have NECO abide by its license and the law.
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. For all of the above reasons, NEC0's supplemental filing provides no additional basis for the grant of its motion for reconsideration. Moreover, there can be no estopoel against the governnent to enforce' requirements imoosed by statute, regulation and license.
Respectfully submitted, Edwin J. Rei Counsel for' NRC Staff Dated at Bethesda, Maryland, 1 j/ 3
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this 5th day of November, 1979.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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BEFbRETHECOMMISSION In the Matter of NUCLEAR ENGINEERING COMPANY, INC.
Docket No. 27-39 (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site) )
CERTIFICATE OF $ERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO NECO'S SECOND SUPPLEMENT TO ITS MOTION FOR RECONSIDERATION" in the above-captioned proceeding have been served on the following by deposit in the United States fmail, first class, or, as indicated by an asterisk by deposit in the Nuclear Regulatory Commission internal mail system, this 5th day of November, 1979:
Alan S. Rosenthal, Esq., Chairman
- Dr. Linda W. Little Atomic Safety and Licensing Research Triangle Institute Appeal Board P. O. Box 12194 U.S. Nuclear Regulatory Commission Research Triangle Park, N.C.
27709 Washington, D.C.
20555 Dr. Forrest J. Remick Richard S. Salzman, Esq.*
305 E. Hamilton Avenue Atomic Safety and Licensing State College, Pennsylvania 16801 Appeal Board U.S. Nuclear Regulatory Commission Scott Madson, Esq.
Washington, D.C.
20555 Assistant State's Attorney 601 South Main Sti;et Dr. W. Reed Johnson
- Princeton, Illinois 61356 Atomic Safety and Licensing Appeal Board D. J. McRae Esq.
U.S. Nuclear Regulatory Commission 217 West Second Street Washington, D.C.
20555 Kewaunee, Illinois 61443 Andrew C. Goodhope, Esq.
Cornelius J. Hollerich, Esq.
3320 Estelle Terrace State's Attorney Wheaton, Maryland 20906 Bureau County Court House Princeton, Illinois 61356 A
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Dean Hansell, Esq.
Troy B. Conner, Jr., Esq.
Susan N. Sekuler, Esq.
Mark J. Wetterhahn, Esq.
State of Illinois Conner, Moore & Corber Environmental Control Division 1747 Pennsylvania Avenue, N.H.
188 West Randolph Street Suite 1050 Suite 2315 Washington, D.C.
20006 Chicago, Illinois 60601 Atomic Safety and Licensing Samuel J. Chilk
- Board Panel
- Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission
" Washington, D.C.
20555 Washington, DC 20555 Atomic Safety and L-l censing John M. Cannon, Esq.
Appeal Panel
- Mid-America Legal Foundation U.S. Nuclear Regulatcry Commission Suite 2245 Washington, D.C.
205i5 20 North Wacker Drive Chicago, Illinois 60606 Docketing and Service Saction*
Office of the Secretary Robert Russell, Esq.
U.S. Nuclear Regulatory tommission Johnson, Martin & Russell Washington, D.C.
20555 10 Park Avenue West Princeton, Illinois 61356 o
Edwin J. gis Counsel for NRC Staff 13/3
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