ML19282A076
| ML19282A076 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 04/02/1979 |
| From: | Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7905100248 | |
| Download: ML19282A076 (26) | |
Text
,
NIJC PUBLIC DOE'DJENT ROOM D
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2
BEFORE THE COMMISSION 4
AN
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9 g4 sw In the Matter of
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NUCLEAR ENGINEERING COMPANY, INC.
)
Docket No. 27-39
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(Sheffield, Illinois Low-Level
)
Radioactive Waste Disposal Site)
)
NRC STAFF'S RESPONSE TO LICENSEE'S MOTIC1 FOR EMERGENCY ACTION STATEMENT On March 8,1979 the Nuclear Engineering Company (NECO), which holds Nuclear Regulatory Commission (NRC) License No. 13-10042-01, notified the NRC that effective that date it was terminating its license for all activities at its Sheffield, Illinois Low-Level Radioactive Waste Disposal Site.U In response to this action by NECO, William J. Dircks, the Director of the Office of Nuclear Material Safety and Safeguards (NMSS) issued an Order to Show Cause on March 20, 1979, requiring NECO to show cause why it should not resume its responsibilities and obligations under its license to operate the Sheffield, Illinois site.
Order at 4.-
U ee Licensee's Notice to Atomic Safety and Licensing Board of SWithdrawal of Application and Termination of License for Activities at Sheffield.
- Previously, on March 9,1979, the Director of the Office of Nuclear Material Safety and Safeguards had notified NEC0 that NEC0 lacked the authority to terminate unilaterally its license and directed NECO to take all necessary action to assure that the health and safety of the public were adequately protected at the site.
Telegram from William J. Dircks to James N. Neel (March 9,1979).
7.f.
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Specifically, the Order stated that NEC0's license for receipt and possession of nuclear materials at Sheffield carried with it the obligation to act with respect to those materials in a safe and responsible manner in accordance with its license, and that until such time as the Commission verified that those activities had been properly conducted, all responsibilities required by the license remained in fo rce.
Id. at 3.
The Order further stated that in view of the impor-tance to the public health and safety of the required monitoring and maintenance of the Sheffield site and the wi11 fulness of NEC0's unauthorized "tennination" of its license, the Order was being made effective immediately.
Id. at 4.
In reply to the Show Cause Order NECO has now filed an emergency motion with the Comission requesting:
(i) that the issues raised by the Show Cause Order be referred for resolution to the Licensing Board now considering NEC0's application for renewal of its present license, and (ii) that the present Show Cause Order be rescinded.
Motion at 4.
In support of its motion, the NEC0 states first, that though it does not believe that the present Licensing Board possesses jurisdiction under its current charter "to consider the issue involving [NEC0's license] termination" (H., at 3), it nonetheless believes that the matter can be most efficiently handled by the Licensing Board now in existence (H. at 4), and that the issues should be transferred to it for consideration and resolution.3_/ Second, Y
- The Licensing Board heard oral argument on March 27, 1979, on several related issues, including whether the Licensee's withdrawal of its application for renewal of its license should be permitted.
NEC0 argues that the present Order should be rescinded in that it " fails to meet the criteria established by the Commission in [its]
decisions, particularly as they relate to the issuance of an order effec-tive imediately."
Id. at 9.
Specifically, NECO asserts that "the Order to Show Cause does not allege that NEC0 has failed to comply with applicable NRC regulations or procedures in the burial of low-level radioactive material at the Sheffield site."
Id. at 9.
In the present matter, the NRC Staff concurs in that part of the Licensee's motion which seeks to consolidate the proceedings and opposes that part of the motion which seeks to vacate the immediate effectiveness of the Show Cause Order.
DISCUSSION I.
Jurisdiction of the Licensing Board.
In the present action the NRC Staff does not concur in the conclu-sion of the Licensee that the Licensing Board now considering this case does not have jurisdiction over the issues presented by its notice of withdrawal of its application for license renewal.
To the contrary, it is the position of the Staff that under the express language of 10 CFR s2.107, such withdrawal can occur on1y "on such tenns as the presiding officer may prescribe," and thus the Board clearly has jurisdiction to resolve the withdrawal issue.
See, Boston Edison Co. (Pilgrim Nuclear Company); LBP-74-62, 8 AEC 324, 326-327 (1974).
Indeed, the Licensee in submitting an order to terminate the proceeding to the Licensing Board,
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recognized that Board's jurisdiction under 10 CFR 52.107.
- Further, Section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c),
provides that where a timely renewal application is made a license "does not expire until the application has been finally determined by the agency."
The regulations of the Commission are similar.1/ Under AEA 98186 and 187, 42 U.S.C. 692236, 2237, all licenses issued by the Commission are subject to amendment or revision.
See Fort Pierce Utilities Authority v.
United States and NRC, 5th Cir'. No. 77-1925, slip opinion, March 23, 1979.
The Board can thus properly condition the existing license under the terms of the Commission regulations to incorporate such requirements and conditions as it--
... deems appropriate or necessary in order to:
(2) Protect health or to minimize danger to life or property. _5_/
The conditions which may be applied under this regulation and the statute are, of course, ones to protect the public health and safety.
Under the Atomic Energy Act, consideration of "the public safety is the first, last and permanent consideration of any decision.
" power Reactor Development Corp., 1 AEC 128, 136 (1959), quoted with approval in power Reactor Co. v.
Electricians, 367 U.S. 396, 402 (1961).
The Conmission further emphasized 4/
-- 10 CFR 2.109, 30.37, 40.43, 70.33.
The Applicant here has operated 10 of the 11 years that the Sheffield disposal site existed under its timely renewal application.
After receiving those benefits applicant seeks to withdraw the application, and say the Commission may not condition such conduct with obligations set out in the AEA to protect the public health, safety and interest.
5_/10 CFR 30.34(e), 40.41(3), 70.32(b).
c,;.;
- in Power Reactor that it "regards the importance of public safety so highly that it does not lose jurisdiction of this subject even after a license has been issued, at any stage in the course of construction, or, for that matter, even after a facility is in operation." See also Fort Pierce Utilitics Authority v. United States and NRC, supra; Consumers Power Co. (Midland Plant Units 1 and 2), ALAB-315, 3 NRC 101,103-104 (1973).
The burden of proof rests on the Licensee in the existing proceeding before the Licensing Board to establish that the order presently sought by it to terminate that proceeding--is consistent with the public safety and the obligations under the Atomic Energy Act.
10 CFR B2.732. E/
Thus, the Licensing Board has jurisdiction to consider all issues involving termination of the existing license including such terms and E/ n Consumers Power, supra at pp. 105-108, it was emphasized that I
burden of showing an order should not be conditioned to protect the public health and safety and minimize dangers always rests with a licensee, even after a license is issued.
Cf. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct.1197 (1978).
. conditions which should be prescribed to protect the public health and safety, and minimize danger to life and property in allowing the withdrawal of the subject application. 27 See also 10 CFR 82.717(b).
2/ n County of Sullivan v. CAB, 436 F.2d 1096 (2d Cir.1961), the court I
ruled that 5 U.S.C. 558(c) did not serve to extend a license past the termination date sought in that renewal, even where there was no final agency determination.
The Court ruled that the authority sought in the timely renewal expired, and there was nothing to which the applicant might be held.
The Court did not deal with the right to withdraw an application for an unlimited license renewal, particularly where the public interest would weigh against such a withdrawal.
It stated supra at p. 1099:
It may well be, although we do not decide the point, that when the holder of a certificate limited in time applies for a renewal for a fixed period, a literal application of the final sentence of 89(b) of the APA and the public interest considerations mentioned by Mr. Justice Burton [in Pan-Atlantic Steamship v. Atlantic Coast Line, infra] would prevent his withdrawing the application or ceasing service before the stipulated date except on authorization granted pursuant to 8401(g) or (j).
But it would be stretching the language of the last sentence of 89(b) outside its reasonable meaning or intended purpose to give it the effect of prolonging through an indefinite period of administrative inaction the authorization of an unwilling licensee beyond the fixed period for which he has sought renewal.
[footnoteomitted]
See Bankers Life & Casualty Co. v. Callaway, 530 F.2d 625, 633-4 (5th Cir. 1976), where the Court also indicated that 5 U.S.C. 558(c) cannot be used by an applicant to escape responsibilities.
See also Pan-Atlantic Steamship Corp. v. Atlantic Coast Line R.R., 353 U.S.
436, 77 S.Ct. 999 (1957) including dissenting opinion.
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However, we do believe that there is merit to the suggestion that no useful purpose is served by having two hearings - one on NEC0's requested license withdrawal and one on the Show Cause Order - which will, of necessity, be duplicative in their consideration of the facts and law controlling this case.$ Thus, for this reason, the NRC Staff does not oppose the Licensee's motion seeking to consolidate these issues for hearing, and suggests to the Commission that in the interest of judicial economy the issues presently being considered by the Licensing Board and the issues presented by the Show Cause Order should be consolidated and resolved by the Licensing Board currently pending in the captioned matter.
II.
Propriety of the Immediately Effective Show Cause Order.
The remainder of the NEC0's motion - that the Order to Show Cause be rescinded - is without merit, and the Staff strongly inter-poses its objection to this action in that such is not warranted under the law or the facts of this case.
A.
Background
The issuance of the immediately effective Show Cause Order was within the discretion of the Director of Nuclear Safety and Safeguards.
10 CFR 2.202(f)provides:
- _fNEC0 has demanded an evidentiary hearing on The Order To Show Cause 8
pursuant to 10 CFR 92.202.
See Answer of Nuclear Engineering Company, Inc. to Order to Show Cause and Demand for Hearing dated March 23, 1979.
- (f) When the Director of Nuclear Reactor Regulation, Director of Nuclear Material Safety and Safeguards, Director, Office of Inspection and Enforcement, as appropriate, finds that the public health, safety, or interest so requires or that the violation is willful, the order to show cause may provide, for stated reasons, that the proposed action be temporarily effective pending further action.
After NEC0 gave notice that it was terminating all operations at the Sheffield waste disposal site, the Director of Nuclear Material Safety and Safeguards sent the subject show cause order stating in part:
... In view of the importance to the public health and safety of the required monitoring and maintenance of the Sheffield site and the will-fulness of NEC0's unauthorized " termination" of its license this Order is made effective s
immediately (i.e., NECU shall resume its responsibilities under the license immediately) and will continue in force pending further order of the Commission.
In the present case, although only one of the factors listed need be shown, all of the above prerequisites for the immediate effectiveness of the order are present:
- The public health and safety requires the order.
- The public interest requires the order.
- The Licensee's violations are willful.
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Under the Atomic Energy Act of 1954, and the Commission regulations, nuclear materials must, with certain exceptions not here relevant, be under license.
Atomic Energy Act 5553, 57, 62, 61, 42 U.S.C. 52073, 2077, 2092, 2111.
Thus no controlled nuclear material may be received, possessed or transferred by a person or a State unless it is done in accord with authority given in a Commission license.
10 CFR 30.3, 40.3 and 70.3.
Moreover, no license for possession of material or any right thereunder may "be transferred, assigned or in any manner disposed of, either voluntarily or involuntarily, directly or indirectly" without Commission approval.
AEA E1183,184, 42 U.S.C. 2233, 2234; 10 CFR 30.34(b), 40.46; 70.36, cf. Rochester Gas and Electric Co. (Sterling Power Project, Unit No.1), ALAB-507, 8 NRC 551, 554-5 (1978).
NEC0 had the nuclear material here involved, and had a license for it.
It still has that material, and the license.
It can transfer neither the material nor the license.
Illinois does not have a license to receive the material.
NECO cannot just abandon the material, but must keep it under license until the Commission makes findings exempting that material from regulatory control and terminating the license.
See 42 U.S.C. 6657(d),
62, 81, 42 U.S.C. 552077(d), 2092, 2111.
The regulations of the Commission and NEC0's license each required that the material not be left without constant surveillance outside of areas
. controlled by the licensee, that the material be monitored, and that security be maintained over the material under license. See 10 CFR 5520.3(14), 20.207, 20.301, 20.302, 20.401-20.409.E As indicated in the Show Cause Order, NEC0's letter of March 8,1979, stating that it had abandoned the Sheffield nuclear water disposal site--was notice that it was not exercising the dominion over the nuclear material it had responsibility for under the Atomic Energy Act or performing the monitoring or providing the security required by the regulations.
The attached affidavit of Dr. Michael J. Bell details some of the condition that have been found at the Sheffield Low Level Radioactive Waste Disposal Site since NEC0 announced its intention of abandoning the site on March 8,1978.
These conditions included:
- Lack of site security and a need to repair the security fence.
- Sink holes in burial trench area extending up to 10 feet in depth.
- Exposed waste containers in the sink holes.
3 mendment No.11 of January 6,1977 to NEC0's license No. 13-10042-01, A
requires that operations at the Sheffield site be conducted in accord with a submission of November 4,1976, referencing NEC0's Radiological Control and Safety Manual and NEC0's Site Operations Manual for Low-Level Rad-Waste Disposal at Sheffield, Illinois.
Section 5, 7 and 9 of the first manual, and sections 4, 5, 8 and Procedure SI-002 of the second manual, among others, put obligations on NEC0 in regard to monitoring and security.
. - Measurements of 400 mr/hr in one sinkho'e next to an exposed waste container.
- Water in sumps in trenches in excess of maximum permissible concentrations for unrestricted areas.
In addition, Dr. Bell there outlines several pathways for the exposure of individuals to radiation in ~ excess of NRC limits.
These included pathways through the air, through the runoff of surface water and through the groundwater, and to persons that might enter the site if it was not secured.
In addition, Dr. Bell averred that radionuclides will migrate offsite in excess of the limits of 10 CFR Part 20 if corrective actions are not taken.
C.
The Violations Were Willful.
Under the law a willful violation is a volitional act which causes a violati :n of law. There is no need for an intent to violate the law, but only to do the act. As stated in Goodman v. Benson, 286 F.2d 893, 900 (7th Cir.1971):
x
. Petitiener urges his denial of trading privileges amounted to a suspension of a license, and that section 9(b) of the Administrative Procedure Act, 5 U.S.C. A. 51008(b), was violated. We do not reach that question for the same section excludes cases of wilfulness. We hold the petitioner's conduct was wilful within the meaning of section 9(b) of the Administrative Procedure Act. We think it clear that if a person 1) intentionally does an act which is prohibited,--irrespective of evil motive or reliance on erroneous advice, or 2). acts with careless disregard of statutory requirements, the violation is wilful.
Eastern Produce Co. v.
Benson, 3 Cir., 278 F.2d 606, 609.
See also Capitol Packing Co. v. United States, 350 F.2d 67, 78-79 (10th Cir.1965); KWK Radio Inc. v. F.C.C., 337 F.2d 540 (D.C. Cir.
1964), cert, denied 380 U.S. 910.
NEC0 voluntarily sent the letter of March 8, 1979, wherein it stated:
You are further notified that effective at 10:01 AM EST, March 8, 1979, NECO terminated its license for all activities at Sheffield for which any license authority from the Commission is required.
At that time all radioactive materials subject to license will have been removed from the site....
For your information, we are also this day terminating the lease with the owner of the site,the State of Illinois.
As pointed out in the show cause order, and in NEC0's instant motion there is waste buried in shallow trenches on the site. The regulations and NEC0's license requires the monitoring of that buried material, security of the site and maintenance of the trenches "f..
- where the material. is buried.
Moreover, the Atomic Energy Act provides that dominion and responsibility for nuclear material cannot be surrounded or transferred to another absent Commission findings that it would not constitute an undue risk to the health and Thfety of the public or be inimicable to the common defense and security.
See provision of the AEA cited above.
Plainly, the Director of Nuclear Material had reasonable basis to believe there was a " willful violation",
and grounds for an immediately effective order under 10 CFR 62.202(f).
D.
The Public Health, Safety or Interest Supports The Immediately Effective Order.
52.202(f) provides that orders to show cause may be immediately effective when the Director of Nuclear Material Safety and Safeguards,
" finds that the public health, safety or interest so requires..."
These words are taken from Section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), governing cases where licenses may be suspended or revoked immediately, without prior notice. There are no requirements in the regulations or in any law that there be an immediate danger to the public safety before an immediately effective order can issue.
Nor do the Commission's precedents indicate that such a standard exists.
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, Supreme Court cases similarly hold that there need be no immediate danger to the public health, safety or interest before an agency can take action to protect what it views as protection of the public health, safety or interest.
See e_.2.:
F.P.C. v. Tennessee Gas Co.,
371 U.S.145,150, 83 S.Ct. 211, (1962) (order setting rates before conclusion of hearing); Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599, 70 S.Ct. 870, 873 (1950) (order siezing an " innocuous" vitamin preparation for mislabling prior to hearing); Farley v. Mallonee, 332 U.S. 245, 253, 67 S. Ct.1552,1556 (1947) (order appointing bank conservator before hearing).
Certainly the Commission has at least the power to deal with radioactive materials as other agencies have to deal with more benign matters.
See Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-315, supra at 109.
Further, the Commission in earlier proceedings involving the Midland plant emphasized that " potential latent" conditions can be an "immediate threat" to the public because such conditions raight rc;' be subject to easy correction in the future.
Consumers Power Co.(Midland Plant, Units 1 & 2), CLI-74-3, 7 AEC 7, 10-12 (1974).
That case involved possible improper construction which could have later been ripped out of the facility and redone.
In addition, the facility might have been denied an operating license.
In either event, the licensee argued, there was no present threat to the public
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, health and safety. The Commissio$ said, "This blinks the realities of the situation." It continued (at p.11).
The licensee's argument gives insufficient recognition to the fact that cadweld deficiencies represent potential latent defects in the structure housing the reactor.
The licensee would have us regard the Midland site at the present time as little more than a hole in the ground with unassembled materials.
Viewed thus in isolation, there is no "immediate threat." Viewed realistically in context, however, deficient cad-welding presents an immediate threat because of this stage of construction is the only one at which such deficiencies can be detected.
It is noted that in the Midland case there was no nuclear material on site.
No material that could enter the environment. The plant was a long way from completion.
Yet the basis of an immediately effective show cause order based on the public health and safety was found to be properly issued.
Here there are radionuclides on site.
Dr. Bell, in the attached affidavit, after reviewing conditions at the Sheffield site concludes:
7.
The presence of exposed waste presents several pathways for exposure of individual to radiation in excess of NRC limits:
(1) radioactive material from a leaking package or soil contaminated by such leakage may be transported as particulate matter and be inhaled by NEC0 personnel on the adjacent site.
(2) The presence of defects in the trench cap would allow surface water to enter the burial trenches and leach radioactive materials from the wastes.
Such water may be released to the environment by transport over the surface of the site, if the trenches accumulate a sufficient quantity of water to overflow, or through the groundwater pathway by subsurface migration.
e.
' (3) An intruder who entered the site through
'the damaged security fence could be over-exposed by the uncovered waste.
8.
In my affidavit of November 29, 1978 I stated that wastes already buried on the licensed 20 acre s'te do not represent an imminent threat to public health and safety. The bases for this statement were, in part, that concentrations of radionuclides
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in leachates had not yet exceeded the limits of 10 CFR Part 20, and that trenches did not have standing water to soak the wastes. These two conditions have now occurred, and NRC concludes that it is likely that radioactive materials will migrate offsite in excess of the limits of 10 CFR Part 20 if corrective actions are not taken.
This threat is substantially more immediate than that posed in the Midland proceeding.
Here we have material in the ground.
It can enter pathways that end offsite. Although the problems may be viewed as " potential" or " latent," the threat of nuclides in excess of those permitted by regulations to migrate to offsite unrestricted areas is immediate.
Taking action when the licensee is long gone is not as appropriate as having the licensee to correct the threat now.
See Midland, ALAB-315, at p.108.
Even leaving aside considerations of " willfulness" or "public health and safety" it is plain that the "public interest" alone gives basis for the immediately effective show cause order.
Ewing v. Mytinger & Casselberry, Inc., supra; FPC v. Tennessee Gas Co.,
supra. In these cases, as in New England Air Express, Inc. v. CAB, 194 F.2d 894 (D.C. Cir.1952), it was nothing but a purported violation
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. of economic regulations which allowed an immediately effective order.
The order is much more justified in the public interest here, where the licensee seeks to walk away from a site where it has buried radioactive waste.
The cases NECO cites to support its claim that the Director of NMSS abused his discretion in issuing and making the show cause order immediately effective do not support its argument. We have already detailed that the Consumer's Power case amply supports the issuance of the order here involved, as tne threat inherent in that case where such an order was sustained by the Cormiission was not nearly as pressing as the one involved here.
Both Consolidated Edison of New York, Inc. (Indian Point, Units 1, 2 and 3), CLI-75-8, 2 NRC 173 (1975), and Nuclear Regulatory Commission (Licensees Authorized to Possess or Transport Strategic Quantities of Special Nuclear Materials),
CLI-77-3, 5 NRC 16 (1977), involved situations in which the issue was whether discretion had been abused in refusing to issuc orders to show cause. The present case involves a challenge to the issuance and immediate effectiveness of such an order. The facts of neither of the cited cases show that the order here, where NECO abandoned a nuclear disposal site was improper.
Here the Licensee was clearly told that it was ordered back on the site because it had, as it admitted, abandoned the site and was not performing the requisite monitoring of f_
possible migrating nuclides or perfonning the necessary site security.
The basis of the action was, clearly stated, and those facts premised on the Licensee's volitional abandonment of the site supported the order.b g
Thus whether we look at the statute, regulation, or the precedents of the Comission, ample basis exists for the immediately effective show cause order.
CONCLUSION Thus, for the foregoing reasons, the NRC Staff urges that the Comission:
(i) consolidate the issues presented by the present Show Cause Order with the pending hearing on NEC0's requested license withdrawal, and (ii) deny NEC0's request that the Show Cause Order be rescinded.
Respectfully submitted, Dated at Bethesda, Maryland, E
this 2nd day of April,1979.
o e for RC Staff E The Licensee has also cited the hearing examiners opinion in X-Ray Engineering Co.,1 AEC 466, 478 (1960), where a materials-license' was revoked for failure to meet the Commission's regulation.
It is apparently cited for the proposition that an immediate danger, in contrast to a threat, to the public health and safety need be found before an "immediately effective" order can be issued.
Certainly Consumers Power Co., CLI-74-3, supra, is contrary.
Moreover, the examiner's opinion unaccountably reads the fact that such orders may be issued for willful violations or in the public interest out of the regulation.
In any event, this part of the opinion seems to be directed to a need for specificity in the charges.
Here the Order to Show Cause plainly details the Licensee's purported surrender of its license aid its refusal to per form his obligations thereunder and under the Comission's regulations.
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- k UNITED 5TATES NUCLEAR REGULATORY COMMISSION y
WASHINGTON, D. C. 20555
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April 2, 1979 Mr. Samuel J. Chilk, Secretary Office of the Secretary of the Comission U.S. Nuclear Regulatory Comission Washington, D.C.
20555 In the Matter of Nuclear Engineering Company, Inc.
(Sheffield, Illinois Low-Level Radioactive Waste Disposal Site)
Docket No. 27-39
Dear Mr. Chilk:
It is noted that the affidavit of Dr. Michael J. Bell submitted herewith is not signed.
Dr. Bell prepared the affidavit but did not have an opportunity to sign it before he was called out of town on an emergency.
He intends to sign the affidavit on his return, and we will file attested to copies at that time.
Sincerely, Edwin J.
is Assist Chief Hearing Counsel
Enclosure:
As Stated cc:
(w/ enclosure)
Cornelius J. Hollerich, Esq.
Alan S. Rosenthal, Esq.
Dean Hansell, Esq.
Richard S. Salzman, Esq.
Susan N. Sekuler, Esq.
Dr. W. Reed Johnson John M. Cannon, Esq.
Andrew C. Goodhope, Esq.
Robert Russell, Esq.
Dr. Lir.da W. Little Troy B. Conner, Jr., Esq.
Dr. Forrest J. Remick Mark J. Wetterhahn, Esq.
Scott Madson, Esq.
Atomic Safety and Licensing D. J. McRae, Esq.
Board Panel Docketing and Service Section Atomic Safety and Licensing Appeal Panel
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s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE~THE COMMISSION In the Matter of
)
)
NUCLEAR ENGINEERING COMPANY, INC.
)
Docket No. 27-39
)
(Sheffield, Illinois Low-Level
)
Radioactive Waste Disposal site)
)
AFFIDAVIT OF MICHAEL J.~ BELL Michael J. Bell, being first duly sworn, deposes and says:
1.
I am Chief of the Low-Level Waste Branch of the Division of Waste Management of the Nuclear Regulatory Commission (NRC). The statements made herein are based upon my knowledge, and information available to me in my official capacity.
2.
Through my official duties I have become acquainted with the licensing actions, health and safety determinations, environmental procedures, and administrative proceedings undertaken by the Nuclear Regulatory Commission in its regulation of the low-level waste burial facility operated by Nuclear Engineering Company, Inc. (NECO) near the town of Sheffield, Illinois. These statements supplement my earlier affadavits of March 31, 1978, November 29, 1978 and January 15, 1979.
3.
On March 9 and March 16, 1979, inspectors from NRC's Region III office visited the Sheffield site. The inspectors found that the x
]-;-]
. security fence was in need of repair, that the licensee was not providing site security, that the burial trench area contained sink-holes at several locations, and that the licensee had not been monitoring sumps in burial trenches and surface water runoff, as required by the license.
In the sinkholes in Trench 23, the inspectors observed buried waste that had become exposed.
4.
On March 8, 9,16 and 22 an inspector from the Illinois Department of Public Health (IDPH) visited the burial site. This inspector also observed that the fence was in need of repair, observed sinkholes in Trenches 7,14A and 23 and observed exposed waste containers.
External dose rate measurements on one 55 gallon drum that was exposed were measured to be 400 mr/hr. The inspector also noted that the sinkholes were becoming larger with time and that the site conditions were deteriorating.
5.
On March 19, 1979 I visited the site accompanied by K. Dragonette, Office of Nuclear Material Safety and Safeguards (NMSS),
J. M. Cutchin, IV, Office of the Executive Legal Director (ELD), and A. B. Davis, Office of Inspection and Enforcement (IE), Region III.
We observed sinkholes in Trenches 23, 24 and 25C, and erosion of slopes in several areas of the site.
Sinkholes in Trenches 23 and 24 were approximately five and ten feet deep, respectively.
We were not able to inspect the sinkhole in the area of Trenches 7 and 14A because extremely muddy conditions made the way impassable.
. 6.
On March 26, 1979, I was informed that inspectors from NRC and IDPH had detected water in sumps in Trenches 14A and 25C and that the concentration of radioactive materials in the water was in excess of maximum permissible concentrations (MPC) for release to unrestricted areas.
In particular, I was informed that the concentration of strontium 90 in trench leachate in Trench 25C was 25 to 30 times MPC.
Trench 25C is adjacent to the eastern site boundary and is in an area of the site underlain by sand lenses which continue offsite onto NECO owned property.
7.
The presence of exposed waste presents several pathways for exposure of individuals to radiation in excess of NRC limits:
(1) radioactive material from a leaking package or soil contaminated by such leakage may be transported as particulate matter and be inhaled by NECO personnel on the adjacent site.
(2) The presence of defects in the trench cap would allow surface water to enter the burial trenches and leach radioactive materials from the wastes.
Such water may be released to the environment by transport over the surface of the site, if the trenches accumulate a sufficient quantity of water to overflow, or through the groundwater pathway by subsurface migration, (3) An intruder who entered the site through the damaged security fence could be overexposed by the uncovered waste.
e 8.
In my affadavit of November 29, 1978 I stated that wastes already buried on the licensed 20 acre site do not represent an imminent threat to public health and safety.
The bases for this statement were, in T
part, that concentrations of radionuclides in leachates had not yet excerded the limits of 10 CFR Part 20, and that trenches did not
.u..uing water to soak the wastes.
These two conditions have now occurred, and NRC concludes that it,is likely that radioactive materials will migrate offsite in excess of the limits of 10 CFR Part 20 if corrective actions are not taken.
9.
On March 27, 1979, the Bureau County Court ordered NEC0, in part, to repair and maintain the security fence, to repair and maintain the security fence, to repair and maintain trench caps, and to pump all trenches dry, except Trench 18, and to collect and hold the water pumped from the trenches until directed otherwise or until an agreed upon disposal method is determined.
These actions, when completed, will alleviate any imminent hazard to public health and safety.
However, the site, in its present conditior., will require permanent corrective measures to prevent recurrence of the situation.
MICHAEL J. BELL, Chief T Low-Level Waste Branch U.S. Nuclear Regulatory Commission
/
COUNTY OF MONTG0MERY
)
)
STATE OF MARYLAND
)
Subscribed and Sworn to before me this the th day of NOTARY PUBLIC My Commission expires
- ' i'!.'
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'BEFORE THE COMMISSION In the Matter of NUCLEAR ENGINEERING COMPANY, INC.
)
Docket No. 27-39 (Sheffield, Illinois Low-Level Radioacti/e Waste Disposal Site) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO LICENSEE'S MOTION FOR EMERGENCY ACTION"~and " AFFIDAVIT OF MICHAEL J. BELL" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an a,sterisk by deposit in the Nuclear Regulatory Commission int'ernal mail system, this 2nd day of April,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 Street 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 20905 Bureau County Court House Princeton, Illinois 61356 t
s
2-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
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Washington, DC 20555 Atomic Safety and Licensing John M. Cannon, Esq.
Appeal Panel
- Mid-America Legal Foundation U.S. Nuclear Regulatory Commission Suite 2245 Washington, D.C.
20555 20 North Wacker Drive Chicago, Illinois 60606 Docketing and Service Section*
Office of the Secretary Robert Russell, Esq.
U.S. Nuclear Regulatory Commission Johnson, Martin & Russell Washington, D.C.
20555 10 Park Avenue West Princeton, Illinois 61356 J
wt
~/ W EdwinJ.Rejs Counsel for NRC Staff 9
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