ML19247A491
| ML19247A491 | |
| Person / Time | |
|---|---|
| Issue date: | 05/04/1979 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19247A490 | List: |
| References | |
| REF-10CFR9.7 SECY-A-79-042, SECY-A-79-42, NUDOCS 7908010039 | |
| Download: ML19247A491 (4) | |
Text
UNITED STATES NUCLEAR REGULATORY COf.tMIS$10N ADJUDICATORY CONSENT CALENDAR ITEM SECY-A-79 42 May 4,1979 For:
The Commissioners From-Leonard Bickwit, Jr.
General Counsel 3iUCLEAR ENGINEERING COMPANY, I;;C.
Sub3e" -
(Sheffield, Illinois Low-Level Radioactive Disposal Site) License No. 13-10042-01; SHC'd CAUSE ORDER.
To obtain Commission approval of a '4e.'c-Furcose:
randum and Order sustaining the immedia e effectiveness of a Staff Order to Show Cause under 10 CFR 2.202 and a Notice of Hearing on that Order.
Discussion:
On March 20, 1979, the Director, NMSS issued an immediately effective order to licensee Nuclear Engineering Company, Inc. (NECO), to show cause why it should not resume its responsibilities for the Sheffield, Illinois low-level waste dis-posal site.1/
The basis of the Di~ rector's acticn lay in NECO's unilateral announce-ment of termination of its license and abandonment of the Sheffield site on Mar 2h 3, 1979 On March 22, 1979, NECO moved the Com-mission to take emergency action 2/ to (1) stay the immediate effectiveness of the order because it failed to allege an immediate health hazard, (2) rescind the 1/
The evenca leading up to che issuance of the order were outlined in our March 29, memo to you on this subj ect.
2/
The request for emergency action was baced on NECO's desire to have the Order considered at the March 27, proceeding before the Licensing Scard considering the This withdrawal of NECO's license reneual application.
date could not be met because both the State of Illinois and the NRC staff informed us they needed time to respond.
Contact:
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2 ordor because it cited no authority preventing NECO from aurrendering its licenst, and (3) refer the natter to the Licensing Bosrd considering NECO's motion to withdraw its license renewal application.
Both the NRC Staff and the State of Illinois opposed NECO's motion to stay the immediate effectiveness of the order, and to rescind it, but con-curred in the referral of the issues in the order to the existing Licensing Board.
On March 23, 1979, NECo answered the Director's order by (1) admitting it had unilaterally terminated its license, (2) acaerting that inspection of the Sheffield site revealed no condition posing an immediate threat to public health and safety, (3) denying its license termina-tion violated any provision of its licence, the Atomic Energy Act, or the Commission's rules and regulations, (4) denying any further responsibility for the Sheffield site, and (5) demanding a hearing.
10 CFR 2.202(c) provides that, in the event a licensee demands a hearing regard-ing ar order to show cause, " tile Comm;3-sion will issue an order designating the time and place of hearing."
Attachment A is a draft Notice of Hearing for the Secretary to issue on your behalf.
That notice directs the existing Licensing Board tc consider whether NECO may uni-laterally terminate Licence No. 13-10042-01 for activities Et Sheffield.
That portion of NECO's motion which asks that the Director's immcdiately effective order be rescinded, however, should be decided now by the Commission.
The participaats have briefed the issue of the order's immediate effectiveness, and the Commission is in a position to assess 493 314
3 it on the basis of the " abuse of discre-tion" criteria agalnst which Directore' decisions on show cause orders are regu-larly evaluated 3/
Moreover, because the "immedi. ate effectiveness" now imposes health and safety requirements on NECO, we do not recommend referring consiuera-tion of this matter to a Lf.ensing Board which w1?1 require time to schedule a hearing.
Attachment B is a draft Memorandum and Order sustaining the immediate effective -
ness of the Director's ordir and refusing to rescind it.
In our vieu, ana:ysis of the situation in terms of the " abuse of discretion" criteria shows that the Director acted well within his discretion.
Immediate action was clearly required to assure the prevention of adverse impacts on public health and safety which could result from NECO's abandonment of the 3heffield site.
Immediate effective-ness of the Director's order was also supported by NECO's willful termination of all license obligations.
1" CFP 2.202(f'.
Preservation of an orderly licensing process required the Director to respond immediately to NECO's unilateral action.
The details of our evaluation are set out in the attached Memorandum and Or der.
Recommendation:
Authorize the Secretary to issue Attach-ments A and B.
R
_o &1_% }.
Leonard Bickwit, Jr.
General Counsel Attachmentc-A.
Notice of Hearing B. Memorandum and Order 3/
Consolidated Ediscn Company of New York, (Indiant Point, Units 1 2, and 3), CLI-75-o, 2 NRC 173, 175 (1975).
498 315
4_
Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Wednesday, May 16, 1979.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Muy 10, 1979, with an information copy to the Office of the Secretary.
If the paper is of such a natura that it requires additional time for analytical review and comment, the Commissioners and the Secret'riat should be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of May 21, 1979.
Please refer to the appropriata Weekly Commission Schedule, when published, for a specific date and time.
DISTRIBUTION Commissioners Commission Staff Offices Secretariat 498 316