ML20204B616
| ML20204B616 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 03/18/1987 |
| From: | Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#187-2867 SC, NUDOCS 8703250111 | |
| Download: ML20204B616 (8) | |
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1 00CKETED USNiiC '
March 18,1987 -
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF IEUETMy BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARfCMETg}f r Fh In the Matter of )
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U.S. ECOLOGY, INC. . ) Docket No. 27-39 -O
)
(Sheffleid, Illinois Low-Level )
Radioactive Waste Disposal Site) )
s NRC STAFF'S RESPONSE IN OPPOSITION TO U.S. ECOLOGY'S MOTION TO MODIFY TIIE TIME FOR FILING BRIEFS IN OPPOSITION TO THE APPEAL OF U.S. ECOLOGY I. INTRODUCTION On March 16, 1987, U.S. Ecology filed a notice of appeal and sup-porting brief from the Atomic Safety and Licensing Board's " Memorandum and Order (Ruling on Motions for Summary Disposition)", February 20, 1987, and a " Memorandum and Order (Clarifying Finality of Decision),"
March 10,1987. The Order of February 20, 1987, decided ~ two legal is-sues determined by the Licensing Board to be raised in the Director of Nuclear Materials Safety and Safeguards' enforcement order of March 20,
- 1979, against U.S. Ecology. Also on March 16, 1987, U.S. Ecology filed a " Motion to Modify the Time for Filing Briefs in Opposition to the Appeal ,
by U.S. Ecology, Inc. of the Final Decision and Statement of Related Considerations." In its motion, U.S. Ecology asks the Appeal Board to modify the time for filing opposing briefs, so that the briefs of the State of Illinois and the NRC staff would be due within two weeks rather than, as contemplated by the Commission's regulations in 10 C.F.R. I 2.762, in the case of the State of Illinois, thirty days after the period has expired for the filing and service of the brief of all appellants, and, in the case 8703250111 870318 ADOCK O270
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s 4 of the Staff, forty days after the period has expired for the filing and service of the brief of all appellants. ,
For the reasons discussed below, the NRC staff opposes U.S. Ecolo-gy's motion and urges the Appeal Board to deny it.
A. The NRC Staff and the State of Illinois are not the final arbiter of the issues on which U.S. Ecology requested a hearing.
U.S. Ecology indicates that an appeal is imperative because of the Licensing Board's " unexpected reconsideration of the merits." Motion at
- 2. According to U.S. Ecology, the Licensing Board's unexpected i reconsideration of the merits leaves U.S. Ecology's adversaries, the NRC staff and Illinois, to decide the ultimate issue for which U.S. Ecology demanded a hearing, whether U.S. Ecology can terminate its license for Sheffield activities. Motion at 2. However, contrary to U.S. Ecology's representations, the Licensing Board's Memorandum and Order of February 20, 1987, decided that U.S. Ecology has a continuing respon-sibility under its license for radioactive waste material buried at the i
Sheffield site and that U.S. Ecology cannot unilaterally terminate its license without affirmative action by the Commission. Memorandum and Order, at 23 and 27. Thus, the Licensing Board did not leave the Staff as the arbiter of the very matter the Commission asked the Board to adjudicate. See, Motion at 2.
B. This Appeal Board should follow the precedent of Kress Creek.
U.S. Ecology states that a different panel of the Appeal Board in Kress Creek considered its possible loss of jurisdiction attendant upon Illinois becoming an agreement state and declined to proceed. Motion at 3. U.S. Ecology further states that it does not presume that the Ap-peal Board in Sheffield will automatically follow the Appeal Board in Kress i
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Creek. Id. The Staff suggests that Kress Creek is instructive and that there is no reason why this Appeal Board's action should be different from that of the Appeal Board in Kress Creek. In Kress Creek, after a Licensing Board decision favoring Kerr-McGee, the Staff appealed. The Appeal Board postponed oral argument and decided to hold the proceeding in abeyance after Staff counsel informed the Appeal Board that the State of Illinois had formally requested the Commission to relinquish regulatory authority over the material at issue in the proceeding. Memorandum and Order, November 13, 1986, at 2. On Kerr-McGee's motion for an expedited decision on the Staff's appeal, the Appeal Board announced its determination to continue holding the matter in abeyance. Memorandum and Order, November 13, 1986, at 2-3. Kerr-McGee argued there, as U.S. Ecology argues here, that the Appeal Board's determination to hold the matter in abeyance while the agreement state status was being resolved was in effect allowing a party, the Staff, to assume the mantle of judge with respect to the resolution of the matters at issue. See Memorandum and Order of November 13, 1986, at 3. The Appeal Board correctly perceived that Kerr-McGee's due process argument was really directed to the NRC's proposed agreement with Illinois, a matter in which the Appeal Board played no role. Memorandum and Order of Novem-ber 13, 1986, at 4. The Staff submits that U.S. Ecology's argument is also with the proposed agreement with Illinois and that, having filed comments , U.S. Ecology's case against Illinois' becoming an agreement state is appropriately before the Commission.
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Kerr-McGee argued before the Appeal Board, as U.S. Ecology does here, that the uncertainty of the timing of the Illinois agreement demand-ed that the Appeal Board proceed with dispatch. The Appeal Board re-garded that very uncertainty as requiring it to refrain from plunging into Kress Creek and muddying the water further. Memorandum and Order of November 13, 1986, at 9. Pere, U.S. Ecology argues that slippages in agreement state status favor expedition. However, the Staff does not see why the timing of the Illinois agreement should impact the handling of U.S. Ecology's appeal. It certainly should not provide a basis for expediting the appeal process. If the Appeal Board determines to proceed with . this appeal, it should proceed in the usual course contemplated by the Commission's regulations in 10 C.F.R. I 2.762.
C. The Commission's decisions concerning the show cause order that gave rise to this proceeding do not provide support for U.S. Ecology's request.
U.S. Ecolotry argues that the Commission gave U.S. Ecology its ex-press assurance that U.S. Ecology would have an opportunity to seek Commission review on the legal issues that have now been decided. Mo-tion at 4. Ilowever, it is clear from the passage from the Commission's ;
opinion to which U.S. Ecology cites, Nuclear Engineering Company Inc.
(Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-79-6, 9 NBC 673, 679 (1979), where the Commission stated, "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," that the Commission's intention was not different from its usual practice in these matters. Also, contrary to U.S. Ecology's representation, the Commission's decision in CLI-79-6 did not uphold the order to show cause
4 g but merely upheld the immediate effectiveness of that order. In Nuclear Engineering Company, Inc. (Sheffield, Illinois Low-Level
- Radioactive Waste Disposal Site), CLI-80-1, 11 NRC 1, the Commission stated, "NECO acknowledges that our order [in CLI-79-6] explicitly dis-claimed any intention to reach a decision on the merits of the issues pending before the Licensing Board and that the Order is limited to the immediate effectiveness of the Director's Order.... Lest NECO or the Licensing Doard labor under any misconception about this matter, we take this occasion to affirm that our June 6 Memorandun. and Order addressed only NECO's request to take emergency action to rescind a Director's Or-der and stay the immediate effectiveness of that Order and was issued for that purpose only." 11 NRC at 4-5. In any case, the Commission's remarks regarding its ultimate review of any Licensing Board action on the show cause order did not constitute a promise to U.S. Ecology but were rather occasioned by U.S. Ecology's suggestion that the
[ Commission's adjudication of the preliminary issue of the immediate effectiveness of the order precluded a later Commission review on the i merits of any decision that mirtht be rendered. The Commission held that its preliminary participation did not disqualify it from considering an i
l appeal on the merits of the proceeding. Id_.
l U.S. Ecology could have sought expedition at any time during the eight years that this proceeding has been ongoing. However, it did not.
It should not now be allowed to dictate to the Appeal Board the timing of this appeal.
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III. CONCLUSION s- As discussed above, U.S. Ecology has not shown any reason to depart from the normal appeal process. Accordingly, the Staff believes the Appeal Board should deny U.S. EcoloFy's motion.
Respectfully submitted, M , D d Ann P. Hodgdon Counsel for NRC Staff Dated at Bethesda, Maryland this 18th day of March,1987 l
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4 00CKETED USNRC l UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION 77 MAR 23 P3:03 l BEFORE THE ATOMIC SAFETY AND LICENSING .BOARI)FFICE Of htTAH 00CKETmG & SERvlCE BRANCH In the Matter of )
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U.S. ECOLOGY, INC. ) Docket No. 27-39
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(Sheffield,' Illinois Low-Level )
Radioactive Waste Disposal Site) )
I hereby certify that copies of "NRC STAFF'S RESPONSE IN OPPOSITION TO U.S. ECOLOGY'S MOTION TO MODIFY THE TIME FOR FILING BRIEFS IN OPPOSITION TO THP APPEAL OF U.S. ECOLOGY" 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 asterisk through deposit in the Nuclear Regulatory Commission's internal mail sys-tem, or as indicated by a double asterisk by hand-delivery, this 18th day of March,1987:
D. Paul Cotter, Esq. , Chairman James R. May, Esq.
Administrative Judge State's Attorney Atomic Safety and Licensing Board Bureau County Court House U.S. Nuclear Regulatory Commission Princeton, IL 61356 Washington, D.C. 20555 "
Jerry R. Kline Henry L. Henderson, Esq.
l Administrative Judge Asst. Attorney General i Atomic Safety and Licensing Board Environmental Control Division l U.S. Nuclear Regulatory Commission 13th Floor Washington, D.C. 20555 " 100 West Randolph Street Chicago, IL 60601
- Dr. ~ Emmeth A. Leubke John M. Cannon, Esq.
l Administrative Judge Mid-America Legal Foundation Atomic Safety and Licensing Board Suite 842 U.S. Nuclear Regulatory Commission 20 North Wacker Drive Washington, D.C. 20555 " Chicago, IL 60606 Docketing and Service Section Robert Russell, Esq.
l Office of the Secretary Johnson, Martin a Russell l U.S. Nuclear Regulatory Commission 10 Park Avenue West Washington, D.C. 20555* Princeton, IL 61356 l
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D. J. McRae, Esq. Susan B. Harmon, Esq.
217 West Second Street Burke, Bosselman and Weaver Kewaunee, IL 61443 Xerox Centre - 55 West Monroe Chicago, IL 60603 Mark J. Wetterhahn, Esq. Mr. Charles F. Eason, Esq.
Robert Rader, Esq. American Ecology, Inc.
Conner and Wetterhahn Director for Governmental Affairs 1747 Pennsylvania Avenue, N.W. 1700 N. Moore Street Suite 1050 Suite 1925 Washington, D.C. 20006 Arlington, Virginia 22209 R. Lee Armbruster, Esq. Atomic Safety and Licensing General Counsel Board Panel U.S. Ecology, Inc. U.S. Nuclear Regulatory Commission P. O. Box 7246 Washington, D.C. 20555**
Louisville, KY 40207 Aton.iic Safety and Licensing Terry Lash Appeal Board Panel Director, Dept. of Nuclear Safety U.S. Nuclear Regulatory Commission 1035 Outer Park Drive Washington, D.C. 20555** Springfield, IL 62704 Chief Legal Counsel Marc Bernabel, Esq.
Department of Nuclear Safety State's Attorney 1035 Outer Park Drive Office of the State's Attorney Springfield, IL 62704 Bureau County Courthouse Princeton, IL 61356 s (
Ann P. Hodgdoh f' Counsel for NRC Staff ( N t
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