ML19289G153
| ML19289G153 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 06/06/1979 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| NUDOCS 7906270186 | |
| Download: ML19289G153 (9) | |
Text
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In the Matter NUCLEAR ENGINEERING COMPANY, INC.
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Docket No. 27-39 (Sheffield, Illinois Low-Level Waste
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Radioactive Waste Disposal Site)
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MEMORANDUM AND ORDER The Nuclear Engineering Company, Inc. (NEC0), a materials licensee under License No. 13-10042-01, operates the low-level radioactive waste disposal site near Sheffield, Illinois.
NECO filed a timely application for license renewal in August,1968, and its license has been continued in effect pending final Commission action.
A Licensing Board was established to consider NEC0's application.
43 Fed. Reg. 9892 (March 10,1978).
On Decem-ber 27, 1978, NEC0 moved the Licensing Board to suspend further proceedings concerning its application.
After hearing from the parties, the Licensing Board, in its order of March 7,1979, scheduled oral argument for March E7, 1979, to consider NEC0's motion.
On March 8,1979, NEC0 filed a " Notice to Atomic Safety and Licensing Board of Withdrawal of Application and Termina-tion of License for Activities at Sheffield."
In response the Licensing Board on March 13, 1979, issued an Amended Order Setting Oral Argument in which it treated NEC0's notice as a motion pursuant to 10 CFR 2.730, and expanded the scope of hearing to include NEC0's motion and any answers thereto.
On March 8,1979, NEC0 also notified the Director, Nuclear Materials Safety and Safeguards (NMSS), that as of that date it was (1) withdrawing its pending application to renew its license and expand the Sheffield site, and A//9' 2.
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2 (2) was unilaterally terminating its license for all activities at the Sheffield site.
The Director, NMSS, informed NECO cn March 9,1979, that it could not unilaterally terminate its Sheffield license, and directed NECO to take all necessary cction to assure public health and safety at the site.
NEC0 responded on March 14, 1979, stating that, in its view, NRC lacked authority to hold NECO to its materials license because NECO had discharged its license respon-sibilities and that the Sheffield site presented no danger to public health and safety.
On March 20, 1979, the Director, NMSS, ordered NECO to show cause why it should not resume its responsibilities under its license for the Sheffield site, and required NECO to resume its responsibilities immediately.
The Director based his order on NEC0's obligation to act in a safe and responsible manner with respect to its license for receipt and possession of nuclear materials at the Sheffield site.
These obligations include maintenance of site security and trenches in which the low-level radioactive material is buried. The Director explained that under the Commission's regulatory scheme no licensee can terminate its obligations and responsibilities under an NRC license except under terms and conditions established by the Commission, and that sucn termination must be preceded by appropriate Commission review to assure protection of public health and safety.
Furthermore, he pointed out j
that licensees could not transfer materials to a third party, such as the State of Illinois which owns the site, without prior Commission approval.
NECO's general failure to hold in force terms and conditions of its license were confirmed by two on-site visits on March 9, and 16 by inspectors from the Commission's Office of Inspection and Enforcement (Region III).
The f8
3 show cause order also gave NECO twenty days to request a hearing to consider the issues involved.
On March 22,1979, NEC0 moved for emergency action by the Commission to stay the immediate effectiveness of the Director's show cause order, and to delegate the Commission's review functions in this matter to the Licensing Board now considering NEC0's withdrawal of its application to renew and expand its Sheffield license.
NEC0 sought prompt action on its motion because it wanted its objections to the show cause order to be considered by the Licensing Board at the oral argument scheduled for March 27, 1979.
Under the Commission's rules, unless the Secretary prescribed other time periods, the response times to NECO's motion were twenty days for the NRC staff and fifteen days for the State of Illinois.
Both participants informed us they could not reply by March 27, 1979.
In view of this circumstance, and the unique nature of the issues raised by NEC0's motion, we did not shorten the participants' response times.
On March 23,1979, NEC0 filed Answer of Nuclear Engineering Company, Inc.
to Order to Show Cause and Demand for Hearing pursuant to 10 CFR 2.202(b).
All participants agree that resolution of the issues raised by the show cause order would be most expeditiously and efficiently handled by the Licensing Board now in existence.
Pursuant to 10 CFR 202(c) we are today issu.ag a separate Notice of Hearing directing the Licensing Board to consider the issue of NEC0's unilateral termination of its license.
2 4
NECO contends that the immediate effectiveness of the Director's o. der 1/
does not satisfy the Commission criteria for determining that the Director acted within his discreticn because the order did not allege that NEC0's withdrawal created an immediate threat to public health and safety.
The NRC staff and the State of Illinois oppose NEC0's request tnat we vacate the immediate effectiveness of the show cause order because it was based on the need to preserve public health and safety.
The reasons stated by the Director in his order provide the requisite basis for understanding his decision. As he noted, the fundamental principle guiding all Commission licensing actions is the paramount consideration of public safety.
This principle pervades the regulatory scheme established by the Atomic Energy Act and requires all persons to act with respect to nuclear materials in a manner which does not constitute a threat to public health and If Consolidated Edison Company of New York, (Indian Point, Units 1, 2, and 3), CLI 75-8, 2 NRC 173, 175 (1975).
That decision sets out five points of inquiry relevant to determining whether the Director has abused his discretion in the issuance of an order to show cause:
(1) whether the statement of reasons given permits rational understanding of the basis for his decision; (2) whether the Director has correctly understood governing law, regulations, and policy; (3) whether all necessary factors have been considered, and extraneous factors excluded, from the decision; (4) whether inquiry appropriate to the facts asserted has been made; and (5) whether the Director's decision is demonstrably untenable on the basis of all information available to him.
In this case, we have also applied these criteria to the issue of the immediate effectiveness of the Director's order because that issue is inextricably intertwined with the Director's decision to issue the order.
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5 safety.
For Sheffield, NECO developed a set of procedures for protecting public health and safety.
These were incorporated by reference into the Sheffield license.
These procedures included provision of a perimeter fence and guard patrol, maintenance of burial trenches, and ongoing environmental monitoring.
The public health and safety reasons for these procedures are explained in several of NEC0's filings with the NRC in support of its license application.
NEC0 recognized that unauthorized access could lead to exposure to radioactivity or unauthorized removal of radioactive material; that defects in trench caps would allow surface water to entar the burial trenches, become contaminated with radioactive materials, and migrate off-site exposing the public; and that soil contaminated with radioactive materials from leaking packages could be blown about and inhaled by NEC0 personnel on its adjacent site.
In spite of these well-known possible consequences, NECO unilaterally terminated all Sheffield activities on March 8, 1979.
NRC inspectors visited the site on March 9, and 16, and confirmed NEC0's general failure to holo ~in force its license terms and conditions.
In our view, the Director's reasons and NEC0's understanding of their implications provided it with a sufficient basis for understanding the order.
The Director's authority to issue an immediately effective order is contained in 10 CFR 2.202(f).
That regulation provides that an order may be imediately effective if:
the public health, safety or interest so requires, or the Licensee's violations are willful.
We believe that all of the prerequisites for an immediately effective order are present.
6 As we have discussed above, NECO's refusal to maintain and monitor the Sheffield site could reasonably be expected to lead to off-site migration of radioactive materials which could expose the public.
The Commission has previously found that latent conditions which may cause harm in the future are a sufficient basis for issuing an immediately effective show cause order where the consequences might not be subject to correction in the future.
Consumer Power Co. (Midland Plants, Units 1&2), CLI-74-3, 7 AEC 10-12 (1974).
Consequently, the possibility of off-site migration, its potential for adverse impact on the public, and the impossibility of recalling such material once it escapes off-site support the Director's finding that public health and safety required an immediately effective order.
Public interest in an orderly licensing process also supported the Director's decision.
Courts have found that purported violations of agency regulations support an immediately effective order even where no adverse public health consequences are threatened.
Ewing v. Mytinger and Casselberry, Inc., 339 U.S. 594 (1950).
Here, the Director was concerned with possible violations of health and safety regulations which could reasonably be expected to have adverse public consequences.
Under these circumstances, the Director reasonably concluded that NECO's unilateral action required an immediate response to ensure that license termination would be preceded by appropriate Commission review.
Consequently, we believe that the public interest justi-fied an immediately effective order which simply required NEC0 to resume safety-related on-site activities.
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7 There is also no question that the licensee acted willfully by its uni-lateral action.
On March 9, the Director informed NEC0 that in his opinion the license could not be unilaterally terminated.
In spite of this opinion, NECO on March 14 reiterated its determination to unilaterally terminate all license obligations.
Such proposeful action by NEC0 supports the Director's finding of willfulness.
Air Transport Associates v. Civil Aeronautics Board 199 F.2d 181,186 (D.C. Cir.1952), cert denied, 344 U.S. 922 (1953), H.
United States v. Illinois Central R.Co., 303 U.S. 239, 242-243 (1938).
In civil proceedings, action taken by a licensee in the belief that it was legal does not preclude a finding of willfulness.
Cargill, Inc. v. Hardin, 452 F.2d 1154 (8th Cir.1971). Thus, NECO's belief that it had no further obliga-tion under the license does not invalidate the Director's finding of willful-ness.
NEC0's mere assertion that it could unilaterally terminate its license presents significant questions of law and policy beyond the of the Direc-tor to decide in the context of the need for action to protect public health and safety.
NEC0's novel legal theories have not been subject to scrutiny by any independent tribunal.
Thus, even though at this time we offer no opinions on NEC0's legal theories, we find that the Director was justified in believing that NEC0's license was still in force, and that NECO's unilateral termination of its obligations under that license constituted willful violation supporting an immediately effective order.
The Director's decision to issue an immediately effective order was made after two NRC inspection visits to the Sheffield facility.
These visits con-firmed NEC0's general failure to hold in force the terms and conditions of its
8 license.
The inspectors found that the security fence was in need of repair, that the licensee was not providing security, that the burial trench area con-tained sinkholes at several locations, that NEC0 had not been monitoring sumps in burial trenches and surface water runoff, and that buried waste had been exposed in some sinkholes.
Consequently, we find that all necessary factors have been considered and inquiry appropriate to the facts asserted had been made.
In view of the foregoing discussion, we find that the Director's decision was not demonstrably untenable on the basis of all the information available to him.
Consequently, we find that the Director acted well within his discretion in issuing an immediately effective show cause order.
Furthermore, we also find that these same reasons require that the order remain in effect at least until the issues have been resolved by T Licensing Board.
Of course, at this time we make no determination on the merits of the issues in the show cause proceeding.
If the decision on any of those issues should come before us for review, we will at that time reach our conclusions on the basis of the record then before us.
We note in passing that we are not alone in finding that conditions at the Sheffield site are such as to render reasonable a requirement that NECO immediately resume responsibility for that site.
An Illinois Circuit Court found that preliminary injunctive relief requiring NECO to resume site maintenance activi-ties was clearly justified, necessary, and appropriate.~2/Even though that Ceut's criteria for enjoining NEC0 were somewhat different, it is clear that the basic factor motivating that Court was the same concern with public health and safety which motivated the Director to issue an immediately effective show cause order.
2/
People of the State of Illinois v. Teledyne Ind, et al., No. 78-MR-25 (Ill.
Cir. Ct. for the 13th Cir., filed March 27,1979).
9 It is so ORDERED.
For the Commission 4
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w/
SAMUELJ.CHJLK Secretary of the Commission Dated at Washington, D.
C.,
this sixth day of June,1979
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