ML20127B815
| ML20127B815 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 06/26/1984 |
| From: | Fonner R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Higginbotham L NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| Shared Package | |
| ML20126L908 | List: |
| References | |
| FOIA-92-71 NUDOCS 8407090053 | |
| Download: ML20127B815 (4) | |
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,o,, UNITED STATES
- o NUCLEAR REGULATORY COMMISSION i #
E wAssiNotoN. o. c. 20sss t JUN 2 61384
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MEtiORANDUM FOR: Leo B. Higginbotham, Chief Low-Level Waste Licensing Branch Office of the Nuclear Material Safety and Safeguards FPC'h Robert L. Fonner, Deputy Director Regulations Division Office of the Executive Legal Director
SUBJECT:
Transfer of Sheffield, Illinois, low-level waste disposal site to Department of Energy pursuant to Section 151 of the Nuclear Waste Policy Act.
In your menorandum of flay 17, 1984, you requested a legal opinion on several questions pertaining to the potential transfer of the Sheffield, Illinois, low-level waste disposal site to the Department of Energy pursuant to Section 151 of the Nuclear Waste Policy Act of 1982 (Pub. L.97-425, 96 Stat 2201, 2244;42U.S.C.10101,10171).
Your questions and our answers follow:
"1. Could the Nuclear Regulatory Comission or Staff make the findings in 151(b) on an ad hoc basis absent formal rulemaking?"
Answer: The Commission or Staff (if the function were to be delegated to the Staff) could make the findings on a case-by-case basis. Section 151(b) does not require a rulemaking procedure for making the determinations, nor for establishing any special criteria for making the determinations. Under Section 151(b) the NRC is not functioning in a licensing or regulatory proceeding, but as an adjunct to the consideration of an application for transfer submitted to the Secretary of Energy.
- 2. Can the phrase "at no cost to the Federal Government" be reasonably interpreted to mean "no cost given reasonably foreseeable circumstances?"
Answer: The view in OELD is that Section 151(b)(1)(B) refers to the costs of transfer. The provision reads, "(B) such title and custody will be transferred to the Secretary without cost to the Federal Government" (emphasis supplied). Transfer costs nonnally associated
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2 with transfer of. real property would include costs of title search, settlement, title insurance (if any), legal fees, Federal, State and local transfer taxes, discharge of liens, etc.. It should also, in this case, be held to mean that the United States will not pay any anount to the owner or lessee of the property for its real property value, or for any personal property accompanying the real property.
In the absence of an adequate legislative history to explicate the relationships between parts of a statute, the rule is to construe the statute in a manner that best resolves its inconsistencies and gives meaning to all its parts. Sutherland, Statutory Construction, 55 46.05, 46.06 (3rd Edition).
Accordingly, we do not construe Section 151(b)(1)(B) as referring to costs of future surveillance, monitoring, and maintenance of the transferred site. The financial aspect of long term custody is, rather, part of the determination made under Section 151(b)(1)(A), which requires the licensee to be in compliance with Section 151(a). Section151(a) covers two situations, first, financing for decomissioning and closure (5151(a)(1)) and financing for long turn maintenance and monitoring
( F, 151(a)(2)),orboth. It is necessary, in order to give meaning to Section 151(a)(2) in the context of a transfer to the Secretary of Energy, to give a narrow reading to Section 151(b)(1)(B). If the latter were all encompassing, the reference to " subsection (a)" in Section 151(b)(1)(A) would be meaningless. .
"(3) Could site closure requirements be interpreted as meaning
" implementation of specific technical requirements for site closure or financial assurance necessary for implementation at some future date after site transfer to DOE"?
Answer: We believe that the suggested interpretation is a reasonable one. ThereferenceinSection151(b)(1)(A)tocompliancewith
" subsection (a)" (i.e. $ 151(a)) includes compliance with the financial requirements determined by the Comission to be necessary, "to permit completion of . . . decontamination, decomissioning, site closure, and reclamation of sites, structures, and equipment used." (5151(a)(1)).
Thus, if the licensee, under Comission requirements, provides funds that permit completion of the physical aspects of site decomissioning and closure by DOE, the Comission could make the detemination under Section151(b)(1)(A). The licensee, being in compliance with 5 151(a),
would have met the requirements of the Comission.
"4.
In ELD's required of NRCopinion pursuant whotoin151(b the ag)ency
?" should make the determinations
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- Answer: The. question of who should make the detenninations-is-one of policy. The statute says the Comission makes- the determinations,
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but there is no bar'to a delegation of the authority. ' We see the following options:
(1) The Comission makes the determinations. If there is no delegation, the Cocinission itself must make the determinations. OELD has no views to express on the merits of the Commission retaining this authority to itself.
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(2) The Comission could delegate the function-(i) to the Staff or (11) to the Atomic Safety and Licensing Board. Of these two alternatives OELD would recomend' delegation to the Staff.
Although the licensing Board has before it a proceeding based upon a.
NRC order, the issues involved in the proceeding do not encompass the matter of transfer of the site to the United States. Therefore, the-determinations under Section-151(b) are not within the scope of the hearing. It must be recognized, however, that effecting a transfer under Section 151(b) would constitute an effective settlement of the adjudication.- Since the conditions of settlement will need to be..
reviewed by the Board, the Board will, perforce, review the 1_
determinations made by the Staff. !
However', review of the determinations is a matter of a different-order than the making of them. . As long as the detenninations- have a legal.
.and factual basis and are not arbitrary or capricious, Board review should not upset them.
A final question raised in your memorandum asks about the necessity of. preparing an environmental-impact statement for closure of the Sheffield site under new 10 CFR Part 51.- In our opinion new 10 CFR Part 51: does not mandate on -EIS for -
the closure of Sheffield.10 CFR 51.20(b)(11)and-(12)-require on EIS only in ,
case of issuance.or renewal of a license under. Part 61,-issuancetof an amendment a under ' .rt 61 for closure, for transfer.to ' site owner-for institutional control, or for termination of the license at the end of the: institutional control period -
l (see 49 Fed. Reg. 9384, March 12. 1984). 10CFR61.1(a)statesthat.the..
- requirements of Part 61.will be applied to sites-under license on its effective-L date only on a case-by-case basis.and only through tenns and conditions imposed' in the license or:by Comission order. Sheffield was not licensed under 10 CFR l:
L Part 61, no requirements of Part 61 have been imposed upon the Sheffield site, ,
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,y and the closure of Sheffield is not pursuant to an amendment issued under-10 CFR Part 61. The'refore, the closure of the Sheffield-site is not subject to the mandatory EIS requirements of 10 CFR 51.20(b).
However,'10 CFR 51.21 does apply, and requires the preparation of an environmental assessment (there is no categorical exclusion covering closure of a waste disposal site). The environmental assessment must meet the requirements of 10 CFR 51.30, and serves as the basis for determining whether the proposed action warrants a full EIS or a finding of no significant impact (see 10 CFR 51.31).
d wh Robert L. Fonner, Deputy Director Regulations Division Office of the Executive Legal Director DISTRIBUTION RLFonner WJ0lmstead OELD R/F OELD S/F Regs R/F Central File FC :0 ELD pt
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