ML20203D689
| ML20203D689 | |
| Person / Time | |
|---|---|
| Issue date: | 02/25/1998 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Cordes J, Cyr K NRC OFFICE OF COMMISSION APPELLATE ADJUDICATION (OCAA), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| References | |
| REF-10CFR9.7 M980129B, SECY-98-005-C, SECY-98-005A-C, SECY-98-5-C, SECY-98-5A-C, NUDOCS 9802260118 | |
| Download: ML20203D689 (1) | |
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/% t UNITED STATES M NUCLEAR RECULATORY C*MMISSION 1
- WASHIN01oH,0 C. 2065ko005 IN RESPONSE, PLEASE k...../ stCRttARY February 25. 1998 REFER TO: M980219B MEMORANDUM TO: Karen D. Cyr General counsel John F. Cordes, Acting Director Office of Commission Appellate Adjudication i
FROM: John C. Hoyle
-@v
SUBJECT:
ST/ FF REQUIREMENTS: AFFIRMATION SESSION,2:50 P.M.,
THURSDAY, FEBRUARY 19,1998, COMMISSIONERS CONFERENCE ROOM, ONE WHITE FLINT NORTH, i
ROCKVILLE, MARYLAND (OPEN TO PUBLIC ATTENDANCE)
L SEC%98 005 and 005A - 2111 Centurv Technoloales. Inc Revised Draft Adiudicatorv Order 1) Declinino To Take Sua Soonte Review Of A Licensina Board s Anoroval Of A Settlement (LBP 981) And 2) Terminatina A Prottadina On Licensee's Challenae To Confirmatorv Order The Commission approved the attached order granting a January 20,1998 Motion for Termination filed by 21st Century Technobgles, Inc. and the NRC r:taff in an enforcement proceeding (in the Matter of 21st Centuries Technologies, Inc.; Docket Nos, 030 30266 &
03030266 CivP; License No. 42 23850 02E; EADS 170, Confirmatory Order). The order also indicated that the Commission would not undertake sua sponte review of the Licensing Board's approval of a settlement in this proceeding (LBP 981).
(The Secretary signed the order on February 19,1998.)
Attachment:
As stated cc Chairman Jackson Commissioner Dieus //
Commissioner Diaz ]
Commissioner McGaffigan '//
EDO CFO OCA OlG Office Directors, Regions, ACRS, ACNW, ASLBP (by E Mail)
PDR DCS y'- [ 6 /? M 9802260118 980225 fa.7 ' '""
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00CMEIED 1 UNITED STATES OF AMERICA UD"C NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
'98 FEB 19 P3 :13 Shirley Ann Jackson, Chairman On. i Greta J. Dieus R< ' '
Nils J. Diaz ADJLD 'l 4i F Edward McGaffigan, Jr.
In the Matter of l SERVED FEB 191996
)
21st CENTURY TECHNOLOGIES, INC. ) Docket Nos. 030 30266 & 030 30266 CivP
) License No. 42 23850-02E (Fort Worth, Texas) ) EA 96170, Confirmatory Order i
CLl 98 01 MEMORANDUM AND ORDER i
On January 20,1998, the NRC Staff and the Licensee, successor to Innovative Weaponry, Inc., which initiated this proceeding, filed a Joint Motion For Termination of this proceeding. For the reasons given below, we grant the Motion.
BACKGROUND On May 15,1996, tne Director of the NRC's Office of Enforcement issued a Notice of Violation and Proposed Imposition of Civil Penalty, and an immediately effective Confirmatory Order that modified 21st Century Technologies' license to require that l'a Licensee develop and implement certain wntten procedures, and develop, and sabmit for NRC approval, training and audit plans. The Confirmatory Order stated that the Licensee had committed to these actions at a predecisional enforcement conference and licensing meeting, and that the Licensee's attorney had agreed to the Order in a telephone call. 61 Fed. Reg. 25,694 95 (May 1
22,1996). The Order gave affected persons 91h!tt than the Licensee 20 days to request a
. p f)- Q 3 g _ _
4 heanng on the Order. On June 14,1996, the Licensee filed a request for a hearing on the Confirmatory Order, contending, among other things, that the Confirmatory Order
- amount [ed) to unjustifiable regulatory duress.*
On June 26,1996, the Commission issued an order that directed the Licensee to file the bases for its conte a, and to state whether the Licensee had in fact consented to the Confirmatory Order, and if so, why such consent should not have the legal effect of waiving the Licensee's hearing rights. In response to the Commission's order, the Licensee argued that the license conditions it had violated were ";.,elevant to public health and safety
- and 'therefore beyond the jurisdiction of the NRC to regulate." Licensee's September 30,1996, Response to i l Commission Order to Particular!ze Contentions, at 610. On October 15,1996, the NRC Staff f filed an Answer to the Licensee's Response, opposing the Licensee's request for a hearing, arguing, in part, that the Licensee had failed to show that the Confirmatory Order was not
- based on the protection of public health and safety, and citing our remark in Advanced Medical Sy1tems Inc.. CLl 94 6,39 NRC 285,312 (1994), that *[t]he Commission's safety regulations i and license conditions reflect the Commission's considered judgment as to what is required to protect the public."
On October 18,1996, the Staff issued an ' amendment
- that terminated the one license 4
and issued a new one. The new one contained a license condition that incorporated the substantive requiremente of the Confirmatory Order. On December 12,1996, the NRC Staff 1 filed a motion to terminate this proceeding on the grounds that the license issued on Oct>ber 18 contained the Confirmatery Order's substantive requirements on training, audits, and procedures, and that the challenge to the Confirmatory Order was therefore moot. The Licensee opposed the Staffs motion to terminate the proceeding.
At the same time that the Licensee had been challenging the Confirmatory Order, the Licensee had also been challenging the Staffs imposition of a civil penalty. The Licensee 2
< answered the May 15,1996, Notice of Violation and Proposed imposition of Civil P;nalty on October 1,1996. On April 10,1997, the Staff it tued an Order imposing Civil Monetary Penalty
- $2,500, having mitigated the proposed civil penalty by $5,000 in light of the fact that 'no adverse consequences to public health and safety actually occurred in this matter." Order imposing Civil Monetary Penalty, Appendix at 34 The Licensee asked for a hearing on the civil penalty, giving the same reasons for opposing the civil penalty that the Licensee had given for opposing the Confirmatory Order. A licensing board was established to hear the civil penalty proceeding. 62 Fed. Reg. 34,718 (June 27,1997).
In the proceeding on the civil penalty, the Staff and the Licensee succeeded in reaching a Joint Settlement Agreement, which provides, among other things, that the civil penalty will be reduced to $2,000, and that the Staff will make itself available to meet w;th the Licensee to discuss possible changes to the license 'to address the Licensee's needs ....' Joint Settlement Agreement at 3. On January 12,1998, the Board that had been established to rule on the Licensee's challenge to the civil penalty approved the settlement and terminated the proceeding on the civil penalty. 21st Centurv Technolooies. Inc., LBP 981,47 NRC THE JOINT MOTION TO TERMINATE On the basis of the settlement in the civil penalty proceeding, the Licensee asked on January 20,1998, that it be allowed to withdraw its request for a hearing on the Confirmatory Order. On the same day, the Licensee and the Staff filed their Joint Motion for termination of the proceeding on the Confirmatory Order. The Motion argues that the Licensee's withdrawal of its request for a hearing on the Confirmatory Order is good cause for termination of the proceeding. The Motion also notes that the requirements imposed by the Confirmatory Order will remain in effect if this proceeding is terminated.
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1 We agree with the parties that the settlement in the civil penalty proceeding, and the i Licensee's request to withdraw, are good cause for terminating this proceeding on the Confirmatory Order. The fundamentalissue in both proceedings was the same, namely, whether certain conditions in 21st Century T6chnologies' license were adequately justified on health and safety grounds. San Licensee's September 30,1996, Response to Commission Order to Particularize Contentions, at 6 7. See also the Licensing Board's September 24,1997, Prehearing Conference Order, st 2. Thus, an approved settlement in the one proceeding and termination of that proceeding would seem to call for an end to the other proceeding also.
Moreover, the Commission looks with favor upon settlements. Seouovah Fuels Coro., CLl 97-13,46 NRC 195,205 (1997). The Licensing Boarc'in the civil penalty proceeding, exercising authority under 10 C.F.R. $ 2.203, has concluded that the settlement is 'in full accord with the public interest ....' Een 21sLCenturv .echnoloales. Inc.. LBP.981,47 NRC (slip op. at 2)
(January 12,1998). We see no reason to disagree. For example, as the parties point out in their Joint Motion to us, the settlement does not lessen any of the safety requirements now applicable to the Licensee. M"eover, the terms of the settlement hold out the prospect that the i Staff and the Licensee will be able to reach mutually agreeable license terms. Therefore, we will not undertake sua soonta review of the Licensing Board's approval of the settlement.
Under these circumstances, to deny the parties' Joint Motion to terminate the proceeding on the Confirmatory Order could undermine a settlement judged to be in the public interest.
- CONCLUSION For the reasons given above, the parties' Joint Motion to Terminate the Confirmatory Order proceeding is hereby granted and the proceeding terminated, 4
, it is so ORDERED.
gu 0ps Hacq% ,
y ft, For the Commission, f ..I,
- ) [] ' o l e, Y R ?ll0i['ehh L
%# \ 'd' // JOHN C. HOYLE 4 q ,y *&* 5ecretary of the Commission Dated Rockville, Maryland this day of February,1998
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- i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
- l i
In the Matter of l 21ST CENTURY TECHNOLOGIES, INC. Docket No.(s) 30-30266-CIVP 3
(Order Imposing Civil Monetary l
Penalty)
CERTIFICATE OF SERVICE I hereby certify that copie*, of the foregoing COMM MEM0 & ORDER -- CL1-98-1 have been served upon the following persons by U.S. mail, first class, exces as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Admir.istrative Judge Office of Comission Appellate Thomas S. Moore, Chairman Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Commission
- Washington, DC 20555 Administrative Judge Administrative Judge Jerry R. Kline Lester S. Rubenstein l Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23
~
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Catherine L. Marco, Esq.
Ann P. Hodgdon, Esq.
Office of the General Counsel James R. Tourte11otte, Esq.
Mail Stop 15 B18 1200 N. Nash Street, Suite 1141 i U.S. Nuclear Regulatory Commission Arlington, VA 22209 Washington, DC 20555 4
9 Dated at Rockville, Md. this 19 day of February 1998 G u <.. r/. 59 Sim n Office of the Secretary of the Comission "
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
In the Matter of 1
INNOVATIVE WEAPONF.Y INCORPORATED Docket to.(s) 30-30266 (Albuquerque, New Mexico)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMM MEMO & ORDER -- CLI-98-1
-~ have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Office of Commission Appellate Catherine L. Marco, Esq.
Adjudication Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop 15 BIG Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Ellis W Merschoff, Administrator Region IV James R. Tourte11otte, Esq. U.S. Nuclear Regulatory Commission I200 N. Nash Street, Suite 1141 Harris Tower Arlington, VA 22209 611 Ryan Plaza Drive, Suite 400 Arlington, TX 76011 Dated at Rockville, Md. this 19 day of February 1998 WS St&w Office of the Secretary of the Commission 9
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