ML19257C514
| ML19257C514 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 01/22/1980 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | EMVNECO |
| References | |
| NUDOCS 8001290285 | |
| Download: ML19257C514 (8) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
..,-x COMMISSIONERS:
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John F. Ahearne, Chairman Victor Gilinsky p
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Richard T. Kennedy
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e Joseph M. Hendrie p
Peter A. Bradford' t
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g In the Matter of
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NUCLEAR ENGINEERING COMPANY, INC.
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Docket No. 27-39
)
(Sheffield, Illinois Low-Level
)
Radioactive Wast'e Disposal Site)
)
)
MEMORANDUM AND ORDER This proceeding involves the low-level radioactive waste disposal facility operated by Nuclear Engineering Company, Inc. (NECO) near Sheffield, Illinois.
On March 20, 1979, the Director, Nuclear Materials Safety and Safeguards (NMSS),
issued an immediately effective Order to Show Cause requiring NECO to resume its responsibilities and obligations under the license for the Sheffield site.
In response, on March 22, 1979, NECO moved the Commission, as the only tribunal with jurisdiction to consider the Director's Order, for emergency ~ action to stay the immediate effectiveness of that Order. Subsequently, on June 6,1979, we issued (1) a Memorandum and Order (Order) which sustained the immediate effec-tiveness of the Director's Order; and (2) a Notice of Hearing (Notice) which directed the Atomic Safety and Licensing Board (Board)' originally convened to consider NEC0's license renewal application to consider and decide whether NECO could unilaterally terminate its license for activities at Sheffield without affirmative action by the Commission.
The Notice and Order fully discuss the 1840 342 8001290
2 events leading to their issuance, and except as is necessary to our discussion herein, we will not recapitulate what is said there.
On June 18,1979, NEC0 moved for reconsideration and clarification of the Commission's Order and Notice.
NEC0 contends that the Order and Notice appear to prejudge the issues now pending before the Board.
In particular NEC0 alleges tFat our decision appears to decide or significantly color the issue of NRC jurisdiction over NECO.
NEC0 also contends that the Commission's Order, as well as the Director's Order to Show Cause, are factually in error because they fail to identify any specific threat to the public health and safety.
The NRC staff and the State of Illinois both oppose NEC0's motioii. The NRC staff contends that our Order decided only those issues necessary for ruling on NECO's motion for emergency action filed on March 22, 1979.
In staff's view, because NEC0 sought our decision on the immediate effectiveness of the Director's Order, NECO cannot be heard now to complain that the Order will influence the remainder of this proceeding.
Staff also contends that the Commission had adequate facts on which to find a danger to public health and safety. The State of Illinois presents essentially the same arguments.
Subsequently, on July 19,1979, NEC0 filed a supplement to its motion for reconsideration to present a staff memorandum released by the NRC pursuant to NEC0's request under the Freedom of Information Act.
In that memorandum, Mr. L.B. Higginbotham of the Office of Insepction and Enforcement (IE) recom-mended against the issuance of a proposed show cause order which would have supplemented the Director's Order by directing NECO to show cause why it should not pump radioactive water from certain trenches at the Sheffield site. This proposed order was never issued.
Mr. Higginbotham's opinion was based on his belief that (1) the urder was unenforceable, (2) the health and safety co1cerns 1840 543
3 regarding the radioactive water were uncertain, (3) the order did not require action not already included in the Director's order af March 20, and (4) NFSS, as the licensing office, should order the action.
NECO contends that Mr. Higginbotham's opinion regarding the radioactive water demonstrates that there was no immediate threat to public health and safety which would justify the Director's immediately effective order of March 20.
Consequeatly, NEC0 believes that we should rescind that Order.
Staff contends that NEC0's supplemental motion and the Higginbotham memo-randum do not provide a basis for reconsideration of our Order and Notice.
Staff argues that the memorandum presents only one NRC employee's thoughts essentially on the legally proper bases for a show cause order which was intended to supplement the Director's Order. Moreover, staff notes that in our Order of June 6,1979, we held as a matter of law that potential threats to public health and safety could provide a basis for an immediately effective show cause order.
Finally, staff asserts that the Director's Order was supported by the facts.
On October 19,1979, NEC0 filed a second supplement to its motion for reconsideration to present a staff memorandum regarding a request by the State of Kansas for NRC assistance with a licensing review of a proposed low-level waste repository.
NECO contends that this memorandum demonstrates that the staff considers properly buried waste to be no longer possessed and that a licensee would discharge any responsibility for decommissioning a waste facility by paying into a perpetual care fund. NECO claims that it relied on this policy and, thus, the Commission is now estopped from asserting that NEC0 pos-sesses the radioactive waste buried at Sheffield. Accordingly, NECO believes that the Commission must rescind the Director's Order to Show Cause, because it 1840 344
4 was premised on NEC0's possession of the waste buried at Sheffield, and that the proceeding must be dismissed.
Staff contends that NEC0's additional submission does not provide a legally sufficient basis for Commission reconsideration of the Order of June 6,1979, or a basis for concluding that tne Commission is estopped from conducting further proceedings regarding the Sheffield site.
In staff's view, the memorandum is a statement of preliminary staff thoughts on proposed deep salt mine burial of low-level waste, but does not purport to set out Commission policy on the issue of possession.
Moreover, Staff believes that the document does not support NEC0's contention that a licensee has no further responsibility for material once it is placed in a disposal facility.
Finally, staff argues that there can be no estoppel against the United States in this situation.
At the outset, we note that NEC0 requested the Commission to consider the immediate effectiveness of the Director's Order to Show Cause and to redefine the issues pending before the Licensing Board. The Comnission followed its usual procedures for considering motions before it and the parties extensively briefed the issue of immediate effectiveness.
In view of NEC0's request, the parties' responses, and the relation of immediate effective-ness to health and safety, we decided that issue.
Under these circumstances, NECO cannot now be heard to complain that the Commission, following the require-ments of the Administrative Procedure Act and its own regulations, issued a reasoned decision on the very issue NEC0 presented to us.
NEC0 acknowledges that our Order explicitly disclaimed any intention to reach a decision on the merits of the issues pending before the Licensing Board, and that the Order is limi*ed to the immediate effectiveness of the 1840 345
5 Director's Order.
flonetheless, NECO now contends that the Board will consider itself " bound to follow the Commission's apparent conclusions."
(Emphasis supplied) (Pet. Mot, at 7.) NECO offers no reasons to explain why the Board will so selectively read cur opinion.
This unsupported and apparently unique claim of " structural" bias does not appear to us to raise a cognizable due process issue, or to otherwise support the allegation that our decision prejudged the issues before the Board.
Thus, we find no reason to clarify our Order of June 6,1979.
It is well-established that our adjudication of preliminary issues in a proceeding does not disqualify us from late: considerirg an appeal on the merits of that proceeding.
NLRB v. Donnelly Garment Co., 330 U.S. 219, 236-237 (1977). This principle applies even if our decision could be construed as implying that we reached tentative views on the issues yet to be resolved.
FTC v. Cement Institute, 333 U.S. 683, 701 (1948). The expression of such tentative views in the course of our exercise of administrative responsibilities does not overcome the presumption that administrators are assumed to be people of conscience and intellectual discipline, capable of judging a particular controversy fairly on its merits. E. Withrow v. Larkin, 421 U.S. 35, 47 (1975). Thus, the Commission is not disqualified by virtue of its preliminary opinion from subsequently reconsidering the same issues on the fuller record which would result from an adversary proceeding.
NEC0 would find prejudgment in the attenuated situation in which an independent Licensing Board will make findings after a full adversary proceeding before it.
NEC0's contention will not pass muster.
First, if, as NECO contends, the Board is bound to our apparent conclusions, it is certainly bound to our explicit disclaimer that our opinion was not addressed to the merits of the 1840 346
6 issues pending before it.
Second, even if the apparent conclusions of our opinion are as claimed by NECO, we must assume that the Board members are also intellectually disciplined and capable of judging the issues fairly on the basis of the full record they will develop.
NEC0 has made no showing that the Board is not " capable of judgir.g a particular controversy fairly on the basis of its own circumstances." United States v. Morgan, 313 U.S. 409, 421 (1941),
C_f.,
f Porter County Chapter of the Izaak Walton League of America, Inc. v. Nuclear Regulatory Commission, Nos. 78-1556, 78-1559, 78-1560 and 78-1561 (D.C. Cir.
decided September 6,1979).
Slip op. at 16.
Third, NEC0's arguments are based on its view of the Commission's apparent conclusions. There is no need to elaborate on the proposition that NEC0's perception of our conclusions will not necessarily be shared by the Licensing Board. The other pleadings filed with us in this proceeding do not perceive such " apparent" conclusions.
Finally, NEC0's contention is clearly premature because the Licensing Board has not, as yet, issued an opinion. Thus, we must dismiss as unfounded speculation NEC0's argurrent that our Order of June 6 will improperly affect the Board's resolution of the issues pending before it.
Lest NECO or the Licensing Board labor under any misconception about this matter, we take this occasion to affirm that our June 6 Memorandum and Order addressed only NEC0's request to take emergency action to rescind a Director's order and to stay the immediate effectiveness of that order and was issued for that purpose only.
Based on information available at that preliminary stage of the proceeding, we upheld the immediate effectiveness of the Director's order, and declined to take the course which NEC0 requested. We found that the Director's Order should remain in effect "at least until the issues have been resolved by a Licensing Board." Complementing this holding, we stated 1840 547
7 that we were making no determination of the merits of the issues in the show cause proceeding.
In light of all this, it would be futile for the parties or the Licensing Board to scrutinize our June 6 Memorandum and Order in an attempt to discover a determination or significant " coloration" of those issues.
NEC0 has also moved us to reconsider our Order of June 6.
NECO's argume..cs in support of reconsideration are similar to arguments it previously presented.
Moreover, NEC0's motion presents no basis for our reconsideration of arguments made to and considered by us in reaching our initial decision.
Thus, there is nothing in that motion which would warrant our reconsideration of the Order of June 6.
Wisconsin Electric Power Company, (Point Beach Nuclear Plant, Unit No.
- 2) 4 AEC 678 (1971), Pacific Gas and Electric Company, (Diablo Canyon Nuclear Power Plant, Unit No. 2), ALAB-30, 4 AEC 685 (1971).
NECO's first supplemental motion and the Higginbotham memorandum also do not provide an adequate basis for reconsideration.
NECO has not demonstrated that the particular matter discussed in the memorandum detracts from the circumstances addressed by the Director's Show Cause Order. That Order was corcerned with the totality of conditions at the Sheffield site, not just the pumping of water from certain trenches. Marcover, our investigation into the Director's exercise of discretion focused on the information known by him or which could have been obtained by him prior to his decision.
- Clearly, the Director could not have abused his discretion by failing to consider an opinion which became available only after he made his decision.
Thus, we do not find that Mr. Higginbotham's personal views on a later proposed order require us to rescind the Director's Order of March 20.
1840 348
8 NECO's second supplement and the staff memorandum on which it is based also do not affect the result we reach today. Our Order of June 6,1979, explicitly noted that we were not passing on NECO's legal theories. The question of whether NECO possesses radioactive material buried at Sheffield is just such a merits
,ue.
As such, it is now pending before the Licensing Board. Accordingly, NECO is free to present its evidence and arguments to the Licensing Board at the proper time.
For all of the above reasons, NEC0's motion of June 18. 1979, and the supplements to that motion, dated voly 19, 1979, and October 19,1979 are denied.
It is so ORDERED.
For the Commisdon
?*L een f
SAMUEL J. CHILK Secretary of tht Commission Dated at Washington, D.C.
this 22nd day of January
,1980.
1840 349
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