ML20038A412
| ML20038A412 | |
| Person / Time | |
|---|---|
| Issue date: | 09/04/1980 |
| From: | Fitzgerald NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436, TASK-CA, TASK-SE SECY-A-80-128, NUDOCS 8110290455 | |
| Download: ML20038A412 (22) | |
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l UNIYED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 SECY-A-80-128 September 4, 1980
_. COMMISSIONER ACTION The Commissioners For:
James A. Fitzgerald From:
Assistant General Counsel REVIEW OF ALAB-606 (IN THE MATTER OF NUCLEAR Sub j e c t_ :
ENGINEERING COMPANY, INC.)
Sheffield, Illinois, Low-Level Radioactive Facility:
Waste Disposal Site Petitions None received and none expected.
for Review:
Review Tine Expires:
September 17, 1980.
To inform the Commission of an Appeal L'
Purcose:
Board decision which, in our opinion, This decision concerns the low-level radioactive Discussion:
waste disposal site operated by Nuclear Engineering Company, Inc. (NECO).
On March 8, 4
1979, NECO withdrew its earlier application fcr site expansion and license renewal; and by Order of May 3,197 9, the Licensing Board dismissed so much of NECC's application as pertained to expansion cf the site. 1/
Subsequently, intervenor Chicago Section, American Nuclear Society (Chicago Section),
challenged the Licensing Board's order, contending that the National Environmental Policy Act (NEPA) requires the NRC to prepare an Environmental Impact Statement (EIS) on the dismissal and to consider the alternatives to termination of site expansion.
The NRC j
staff and intervenor State of Illinois opposed
/
to withdraw its application for license 1/
NECC's request renewal is the subject of continuing ad'udication.
CONTACT:
Information in th # 0 d E defeled heldcn 1. Trubatch, OGC in 3CCCidance With the Trep'",.a !n!0rmiton "w
i Act, excmpt;ong y
- = ~
r M
2
. ~.
the Chicago Section's. appeal on the principal bases that it was untimely and lacked merit.
NECO did not file a brief.
The Appeal-Board.
found that the Chicago Section's delayed appeal resulted from its failure to realize the Licensing Board's dismissal order that was immediately appealable.
However, it dismissed Chicago Section's appeal on the merits finding that the Licensing Board's termination of NECO's expansion application was a ministerial federal action which did not require either an EIS or the considera-tion of alternatives.
Dr. Johnson, in a concurring opinion, stated that NEPA requires the consideration of waste disposa1' alter-natives because NRC requirements prompted NECO to withdraw its expansion application.
In our view, the Appeal Board's decision was correct and should not be reviewed by the Commission.
The issue of the timeliness of the Chicago Section's appeal apparently arose from its failure to appreciate that the Licensing Board's Order of May 3,1979, was final for the purposes of appealability-because that crder disposed of a major segment of the pending proceeding.
On January 14, 1980, the Chicago Section moved the Licensing Board te declare its May 3,1979 Order final; and on May 7, 1980, in an Order responding to a different motion by the Chicago Section, the Licensing Board also noted that under established-Commission practice the May 3, 1979, Order was final.
Chicago Section thereupon appealed.
The Appeal Board noted that time limits regarding appeals established by the Rules of Practice are not jurisdictional.
In the absence of any claim by the parties that they would suffer prejudice by consideration of.
the merits of this question at this time and its belief that the Chicago Section's lateness was occasioned by mistake and not by lack of diligence, tne Appeal Board elected not to
,$1smiss this appeal on timeliness grounds.
4 3
The Chicago Section's argument regarding compliance with NEPA is based on its con-tention that dismissal of the expansion application will prevent the further burial of low-level waste at Sheffield'and will result in significant environmental impacts from the transportation of these wastes to other burial sites.
The Appeal Board agreed that dismissal of the expansion application would have the effect of_ foreclosing the further burial of waste at the Sheffield site, but noted that this situation was not the result of Federal action but rather of the lack of capacity at the existing site, NECO's withdrawal of its expansion appli-cation, and the Commission's lack of au-thority to require a licensee to expand its facilities.
Accordingly, the Appeal Board found that the Licensing Beard's approval of NECO's withdrawal was a purely ministeral act for which NEPA did not require the NRC to prepare an EIS. [In our view,
/
61.5 El
)
NECO also centended that the Comnission had an independent responsibility under NEFA to.
censider alternatives to NECO's proposed withdrawal.
The Appeal Board held that once NECO exercised its right to withdraw its expansion application, a proposed expansion was,no longer pending before the NRC and, thus, there was no reason for the Commission
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Chicago Section also contended that inherent in NECO's 1969 license is the expectation that it would be permitted reason-able expansions under 1969 standards.
sy.0
1
' j 4
4 ff.[
to consider alternatives,
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Dr. Johnson, in a concurring opinion, main-tained that the staff should have considered l
the consequences of its imposition of require-ments which impaired the economic feasibility of the proposed site expansion and were partially responsible for NECO's decision to withdraw its application.
He suggested that i
the Commission assure that in the future staff will make such assessments. [We believe g-that
/
67.5 Recommmendation:
rgera/cd.
a~.
ld
[J. mes A. F ssistant General Counsel
Attachment:
ALAB-606 Commissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Wednesday, September 17, 1980.
Commission Staff Office comments, if any, should be submitted to the Comissioners NLT September 11, 1980, with an information copy to the If the paper is of such a nature that'it Office of the Secretary.
requires additional time for analytical review and coment, the Comissioners and the Secretariat should be apprised of when 'coments may be expected.
DISTRIBUTION Comissioners Comission Staff Offices Secretariat i
ld h^uW
~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4
ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S.
Rosenthal, Chairman Richard S. Salzman Dr. W.
Reed Johnson L
)
In the Matter of
)
)
NUCLEAR ENGINEERING COMPANY, INC.
)
Docket No. 27-39
)
(Sheffield, Illinois, Low-Level
)
Radioactive Waste Disposal Site)
)
)
Mr. John M. Cannon and Ms. Susan W. Wanat, Chicago, Illinois, for the appellant, Chicago Section, American Nuclear Society.
Attorney General of the State of Illinois William J.
Scott and Assistant Attorneys General Susan N.
Sekuler and Mary Jo Murray, Chicago, Illinois, for the intervenor, State of Illinois.
Mr. Roy P. Lessy for the Nuclear Regulatory Commission staf f.
DECISION August 12, 1980 (ALAB-606)
I Several years ago, the Nuclear Engineering Company (NECO) filed an application for renewal and amendment of its existing license to operate a low-level radioactive waste burial site
near Sheffield, Illinois.
The sought amendment would have, allowed the applicant to increase the size of the inter alia, P
In the wake of a number site from 20.45 acres to 188.45 acres.
of successful petitions for leave to intervene and requests for a hearing, a notice of hearing was issued by the Licensing Board in March 1978.
A year later, on March 8, 1979, the applicant notified the Board that it had just informed the Director of the Commission's Office of Nuclear Material Safety and Safeguards (NMSS) that it was withdrawing its application for license renewal and site expansion.
The applicant further indicated that it was termi-nating immediately "its license for. activities at Shef field".
Ltice was a proposed order dismissing the ad-Attached to the r:
judicatory prc eeding.
the Treating the notice as a motion under 10 CFR 2.730, Board called for responses from the other parties.
On March 20, 1979, the NRC staff filed its answer.
Although acquiescing in the abandonment of the application insofar as it sought ap-the staff regis-proval of an expansion of the Shef field site, tered its objection to the applicant's " attempt to withdraw the license application for the 20-acres where waste is already According to the staff, the applicant had a continuing buried".
responsibility under the terms of its existing license and NRC
s
_ 3 _.
regulations to safeguard properly the buried waste and that responsibility could not be shed by seeking to terminate the license renewal proceeding. 1/
In line with this position, on the same day the NMSS Director issued an immediately effec-tive show cause order directing the applicant to resume its Thereafter, on responsibilities under the existing license.
April 10, 1979 (following oral argument on the matter on 1
March 27), the staf f submitted to the Board a list of proposed conditions precedent to the dismissal of the proceeding.
On May 3, 1979, the Licensing Board entered an unpublished order in which it dismissed so much of the application as per-tained to the expansion of the site.
The Board declined, how-ever, either to permit the applicant to withdraw its applica-In tion for license renewal or to dismiss the proceeding.
this connection, the Board pointed out that both the staf f's request that conditions be imposed upon such dismissal and the related show cause order would require evidentiary heari.ngs.
(One month later, on June 6, the Commission ordered a hearing on the show cause order before the same Licensing Board.)
1/
The staff's view was subsequently endorsed in a March 24, 1979 filing by the intervenor, State of Illinois.
No endeavor was made to appeal from any portion of the May 3 order.
On January 24, 1980, however, intervenor Chicago Section, American Nuclear Society, moved the Licensing Board "to declare as final" that portion of the May 3 order "termi-nating application for site expansion at the Shef field * *
- site if said Order did, as a practical matter, finally dispose of that portion of the case".
On May 7, the Board entered an unpublished order in which it dealt principally with another motion which had been filed by the Chicago Section. l/
At the end of that order, the Board took note of the January 24 motion and responded to it as follows:
The May 3, 1979 ruling granting Applicant's motion to withdraw its application to expand the Shef field site was indeed final as of that date as f ar as this board was concerned, since it disposed of a major segment of the case.
However, it is for the Appeal Board or the Commission to decide whether to hear an appeal.
See Toledo Edison Company, et al.
(Davis-Besse) and Cleveland Electric Illum-inatinc Company, et al. (Perry Units 1 and 2),
ALAB-300, 2 NRC 752, 758 (1975).
Consequently, Chicago Section's motion to declare as final the board's May 3, 1979 de-cision and order is granted to the extent stated above.
Founding its right to do so upon the May 7, 1980 order, the Chicago Section now seeks to challenge the May 3,1979 order.
_2 /
See fn.
3, infra.
its ef fect was to terminate all future operations I
Reasoning that at the Sheffield site, the Chicago Section claims that the 1979 order had to be preceded by an environmental impact statement and the consideration of alternatives to such termination Both the staf f and the intervenor State of Illinois oppose the that it is untimely;- / and appeal on the principal grounds (1) that it lacks merit.- /
For its part, NECO did not file a 5
(2) brief.
II we are confronted with the question of the At the outset, Both Ill2nois and the staf f mai..tain t ime '. ?ess of the appeal.
1979, the Chicago Section had moved the On August 24,
_3/
Licensing Board for an order compelling the staff "to environmental impact statement" and "to file a draft study, develop and describe alternatives to suspension That motion had been de-of operations at Sheffield".The ground assigned war that nied on December 3, 1979.
(1) that the Board had no authority to require either the staf f prepare an environmental impact statement prior to a ruling on the motion to withdraw the appli-cation or (2) that the-applicant or anyone else operate the burial site " simply because it may be an environ-On December 21, mentally preferable course of action".
1979, the Chicago Section sought to have that ruling The May 7, reconsidered or certified to the Commission.
1980 order denied that relief.
Illinois moved to strike the Chicago On May 27, 1980, Section's exception to the May 1979 order as untimely.
4/
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By order of May 30, we directed that the timeliness question be briefed by the parties along with the mer-its of the appeal.
This was done.
Although those parties also raise other points in urg-
_/
5 ing af firmance, we. need not and do not reach them.
s
. 9 insof ar as it dismissed that portion of the NECO applica-th a t,
tion as pertained to expansion of the burial site, the May 1979 order was final and subject to appeal within ten days under the Chicago Section asserts that 10 CFR 2.762.
In response, that order was wholly interlocutory and did not achieve any degree of finality for appellate purposes until the issuance of the May 19 80 order. 6 /
It presses this assertion in the f ace of the Licensing Board's observation in the May 1980 order that it deemed the partial dismissal of the NECO application to have constituted final action at the time taken because "it disposed of a major segment of the case".
See p.
4, supra.- /
6 In addition, the Chicago Section argues that the May 1979
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order was not appealable under 10 CFR 2.762 because it did not qualify as an " initial decision".
That argument obvicusly proves too much.
Nothing in the May 1980 order converted the May 1979 order into an initial decision.
if the latter order was not subject to appeal when
- Thus, rendered because not an initial decision, it still is non-appealable.
We need not pursue the matter any further, however, because the Chicago Section's premise is incor-i.e., under Commission practice, an appeal may be rect; taken f rom final orders of the Licensing Board whether or not embodied in an initial decision.
- See, e.g.,
Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-76-1, 3 NRC 73, 74 (1976), Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-122, 6 AEC 322 (1973): Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit No. 1), ALAB-331, 3 NRC 771, 774 (1976).
See also, discussion at p.
7, infra.
In the circumstances, we need not decide what would have 7/
been the operative effect of that order had the Licensing
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Board reached a dif ferent conclusion therein respecting the time at which its prior order had acquired finality.
s In light of our 1975 decision in the Davis-Besse antitrust proceeding, b/ the Board below was cicarly correct in this ap-praisal of the situation.
There, we were called upon to deter-mine the appealability as a matter of right of certain discovery rulings made below.
Concluding that the answer turned upon whether the rulings amounted to a " final decision", we held The test of " finality" for appeal purposes be-fore this agency (as in the courts) is essen-tially a practical one.
As a general matter, a licensing board's action is final for appel-late purposes where it either disposes of at least a major segment of the case or terminates a party's right to participate: rulings which do neither are interlocutory.
2 NRC at 758 (footnotes omitted).
It cannot, of course, be seri-ously disputed that the portion of the May 1979 order here under attack did (as the Board below noted) dispose of a very major segment of the present proceeding. b/
Nor did the Board leave room for the slightest doubt that that order represented its ul-timate word on the subject of the proposed expansion of the burial site.
8/
Toledo Edison Co. (Davis-Besse Nuclear Power Station),
ALAB-300, 2 NRC 752.
As seen, p.
4, supra, the Board was quite aware of that decision.
Indeed, in its argument on the merits, the Chicago Sec-9/
tion not merely recognizes but appears to emphasize that fact.
See pp.
9-10, infra.
I i
. i i
III l
Although the time limits established by the Rules of Practice with regard to appeals from Licensing Board decisions and orders are not jurisdictional, our general policy has been to enforce See Iowa Electric Light & Power Co. (Duane Arnold
.them strictly.
Energy Center), ALAB-108, 6 AEC 195 (1973).
Without implying an alteration in that policy, we nevertheless lay to one side the Giving Chicago Sec-untimeliness of the appeal in this instance.
tion the benefit of all reasonable doubt, it appears that the lateness likely was not occasioned by a lack of diligence but, stemmed f rom an unfortunate misapprehension respecting
- rather, the immediate appealability of the portion of the May 1979 order Granted, had Davis-Besse, ALAB-300, supra, been in question.
consulted, Chicago Section would (or at least should) have de-We see no compelling necessity, tected the error in its thinking.
the heavy penalty of appeal dismissal for the however, to visit In this failure of its counsel to have uncovered that decision.
connection, none of the other parties to the proceeding has as-serted that it would be materially prejudiced by our considera-tion of the merits of the May 1979 order at this late-date.
1 i
Accordingly, we shall now move on to examine the Chicago Section's claim that the portion of NECO's application which sought authorization to expand the Shef field burial site could
s 9
not be dismissed without the prior preparation of an environ-mental impact statement and the evaluation of alternatives.
That examination compels the conclusion that the claim is in-substantial.
As previously mentioned, central to the Chicago 1.
Section's position is its premise that, unless the Shef field burial site is enlarged, " operations" at that site will have been "ef fectively te rminated".
By this, we understand the Chicago Section to have in mind that the existing site will.
- Thus, not acc:mmodate any further low-level nuclear wastes.
absent site expansion, "the Shef field operation [is] converted from an active low-level nuclear waste disposal site to a col-
~
lection and distribution center where such waste is assembled and shipped to other licensed disposal facilities" in far-removed areas of the United States.SS!
From this premise, the Chicago Section proceeds to the conclusion 11/
hat the dismissal of NECO's application (to t
the extent it sought authorization to expand the burial site) i constituted a " major rederal action significantly affecting the quality of the human environment" within the meaning of 10/
Br. pp. 3-4.
11/
Id. at pp. 4-6.
)
s Section 102 (2) (C) of the National Environmental Policy Act, 42 U.S.C. 4 332 (2) (C).
That action is said to be "the abandon-ment" of the Sheffield " project".
Accordingly, we are told, the preparation of an environmental impact statement was a condition precedent to the dismissal.-
There is a fundamental difficulty with this thesis.
2.
The Chicago Section has gone astray in its characterization The of the nature and ef fect of the Licensing Board's action.
May 1979 order did not, of course, allow NECO to " abandon" the To the con-20.45 acre burial site currently under license.
trary, the Board expressly denied NECO's motion to withdraw
- Moreover, its application for renewal of its existing license.
whe ther (and, if so, on what conditions) NECO will be allowed to abjure further responsibility for the licensed site remains to be adjudicated.
as matters now stand, no additional It well may be that, low-level radioactive wastes will or could be stored at Shef-such wastes therefore will have to be transported field and that to alternate, distant burial sites.
But whatever environmental consequences may flow from that reality are not attributable to Federal action within the contemplation-of NEPA.
Although l
the Chicago Section does not say so explicitly, it seemingly assumes that this Commission has the statutory authority to i
s 11 -
compel UECO to expand its burial site and then to receive and store additional waste materials.
We know of no such authority and Chicago Section has pointed to none.ll/
As we see it, in this respect NECO is in a no different position than an electric utility in possession of an operating license for a single-unit nuclear power facility.
Surely, it could not be prevented from r
withdrawing an application for a permit to construct a second unit unless and until the alternatives to building that unit the substitution for it of a fossil-fuel plant) had re-(e.g.,
ceived a NEPA assessment.
In view of these considerations, Chicago Section's heavy 337 F. Supp.
relianceb1! upon City of New York v. United States, 150 (E.D.N.Y. 1972), is misplaced.
That case involved the grant by the Interstate Commerce Commission of the application of a terminal railroad for permission to abandon its entire existing line in the New York City area.
Such permission was of the required by reason of the provision of Section 1(18)
Interstate Commerce Act, 49 U.S.C. 1 (16 ), to the effect that no rail carrier subject to that Act "shall abandon all or any 12/
We do not mean to suggest that the Commission may not compel one of its licensees to take additional steps
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where necessary to protect the public health and safety from the direct consequences of licensed operations.
that the The Chicago Section does not claim, of course, expansion of the burial site might be such a step.
13/
Br. pp. 7-8.
s portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the [ICC) a certificate that the present or future public convenience and necessity permit of such abandonment".
It was in this context the court held the approval of the abandonment application that f
to be a major Federal action subject to NEPA's commands (and, in-the ICC did not contend otherwise).14/
We need add only that
- deed, there is nothing in the City of New York opinion which even re-motely saggests that the court would have similarly viewed an ICC order which had done no more than to allow a railroad to exercise its right to withdraw an application seeking authoriza-tion to expand its existing facilities.15/
1 all that the Licensing Board did was to allow NECO In sum, to pull back the portion of its application which looked to the receipt of authorization to engage voluntarily in activities (i.e., the storage of radioactive wastes on an additional 168 t
acres) which at present it is not licensed to undertake.
This Commission could not have forced NECO to seek such authorization
)
4 14/
See 337 T. Supp. at 158-59.
)
Suffice it to say that none of the other judicial deci-15/
)
sions cited by the Chicago Section involved a situation even remotely analogous to that in the case before us.
l i
I i
s (let alone to conduct such activities) ; hence, it cannot insist that NECO prosecute that portion of the application any further.
Far from being a major Federal action depending for its validity upon the results of a prior NEPA appraisal of its consequences, the May 1979 order thus was essentially ministerial in character.
It accorded relief which could be withheld from NECO neither as a legal nor as a practical matter, irrespective of how the Chicago Section or anyone else might regard the desirability of an expansion of the Shef field site to permit further waste storage thereon.
Consequently, no environmental impact state-ment was required.
NAACP v. Wilmington Medical Center, Inc.,
436 F. Supp. 1194, 1202 (D. Del. 1977), affirmed, 584 F.2d 619 (3rd Cir. 1978).16/
dismissed that portion of the NECO applica-Insofar as it authorization to expand the Shef field burial tion which sought it also follows that there is no 16/
For these rease merit to Chicago Jection's further argument (Br. p. 8) even if the preparation of an environmental im-
- that, the Commission has statement was not necessary, pact violated its statutory obligation to " study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves un-resolved conflicts concerning alternative uses of available resources".
Section 102 (2) (E) of NEPA, 42 4 332 (2) (E).
Once NECO had elected (as was its U.S.C. to withdraw its request for authorization to right) expand the burial site, there was no longer a proposal for such expansion before the agency.
3 E/
site, the Licensing Board's May 3, 1979 order is affirmed.
It is so ORDERED.
FOR THE APPEAL BOARD O. A~msdu
\\
C. Je Q Bishop Secretary to the Appeal Board The concurring opinion of Dr. Johnson follows, pp. 15-16, infra.
Needless to say, nothing we have said in this opinion im-plies any belief as to NECO's continuing obligations with 17/
That matter is regard to the previously-licensed site.
not now before us.
Concurring Opinion of Dr. Johnson:
I agree that granting NECO's motion to withdraw its applica-tion for permission to expand the Sheffield site was not a major Federal action for NEPA purposes, and for this reason I join in the Board's opinion.
In doing so, however, I must record my be-While the deci-lief that this outcome has disturbing elements.
sion of NECO to withdraw its application was voluntary in a strict is room to conclude that this step was at least legal sense, there indirectly a result of NRC staf f actions. b!
The record of this f
proceeding indicates that NECO's decision was prompted in part by the imposition of requirements by the NRC staff wliich seriously impaired the economic feasibility of the proposed site expansion.
It is axiomatic that the NRC must adopt and impose those criteria for the siting and operation of low level waste disposal facilities which are necessary to assure reasonable protection of the public health and safety.
But that process cannot be dealt Radioactive waste products will continue with in the abstract.
to be generated in Illinois.
If they cannot be interred at an alternative is that they be trucked elsewhere for Sheffield, disposal.
That, too, is hazardous.
Obviously then, both li-censing and not licensing Sheffield's expansion have consequences 1/
See for instance the letter of James N. Neel (President of NECO) to William J. Dircks (Director of the Office
~~
dated Decem-of Nuclear Material Safety and Safeguards),
ber 27, 1978.
f
-v w
u--
for the public health and safety.
The choice cannot be avoided.
If the requirements for siting and operating waste disposal f a-cilities are so stringent as to rule out the economical opera-tion of such facilities, this simply forces selection of alter-native waste disposal methods with their attendant hazards and environmental impacts.
3 I am not able to say what waste disposal alternative would be preferable.
But NEPA compels such considerations to be taken into account.
It is apparent on this record, however, that no thoughtful assessment was made by the staff respecting the con-sequences of the requirements it imposed on NECO.
This is a manifestly serious omission and it deserves the Commission's attention and corrective action for future cases.
My colleagues have authorized me to state that they are in general agreement with the views expressed in the first two paragraphs of the foregoing opinion.
They are not prepared, however, to go so far as to say that it is apparent on the record before us that the staf f f ailed to make a thoughtful assessment of the consequences of the requirements it imposed on NECO's site expansion proposal.
In their judgment, the most that can be said is that the record does not affirmatively es-tablish that such an assessment was made.
...