ML20211K333
| ML20211K333 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 11/10/1986 |
| From: | Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20211K339 | List: |
| References | |
| CON-#486-1494 SC, NUDOCS 8611170132 | |
| Download: ML20211K333 (22) | |
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- . nNn November 10, 1986 UNITED STATES OF AMERICA '86 NOV 13 A11 :39 NUCLEAR RECULATORY COMMISSION OFFILE < -
00CFli m a i :sLT BEFORE THE ATOMm SAFETY AND LICENSING BOARD BTU hu" 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) )
NRC STAFF'S RESPONSE IN OPPOSITION TO U.S. ECOLOGY'S MOTION FOR
SUMMARY
DISPOSITION I. INTRODUCTION On Octohor 14, 1986, U.S. Ecology, Inc ("USE") filed a motion for summary disposition on two issues of law raised in the proceeding on the NRC staff's immediately effective show cause order by which the Staff required USE 1 to resume its responsibilities and obligations under its license at the Sheffield site. In its motion, USE asks the Licensing Board to find that it does not possess the source, byproduct and special nuclear material buried at the Shefficld site and that it had the right to unilater-ally terminate its license for activities at Sheffield without affirmative ac-tion by the Commission. For the reasons discussed below, the NRC staff l
disagrees with USE's interpretation of the law regarding possession and license termination and, therefore, opposes USE's motion.
-1/ In its response the Staff refers to the licensee as U.S. Ecology
("USE") or Nuclear Engineering Company ("NECO"). The original licensee for the site was California Nuclear. Prior to the events that gave rise to this proceeding, California Nuclear was acquired by I
Nuclear Engineering Company ("NECO") . Subsequently, NECO changed it name to U.S. Ecology. See " Order Changing Name of Licensee . . ." (February 25, 1981).
8611170132 861110 x PDR ADOCK O2700039 PDR O
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II. BACKGROUND This praceeding grew out of an earlier proceeding conducted on the application of U.S. Ecology, then known as Nuclear Engineering Company
("N ECO") , to expand its low-level radioactive waste disposal site near Sheffield, Illinois. S The presiding Atomic Safety and Licensing Board granted a number of petitions for intervention on NECO's application. II On March 8, 1979, NFCO informed the NRC that it was withdrawing its application for license renewal and site expansion and that it had termi-nated its license. U On March 20, 1979, the NRC staff issued an immediately effective order to show cause. The order required NECO to resume its responsi-bilities and obligations under License No. 13-10042-01 at its Sheffield site.
Upon NECO's request for a hearing on the order, the Commission issued a memorandum and order sustaining the immediate effectiveness of the Staff's show cause order and referring the issue raised, whether NECO could unilaterally terminate its ifcense, to the Licensing Board presiding over the proceeding on the license renewal and site expansion application.
Nuclear Engineering Company (Sheffield, Illinois Low-Level Radwaste Waste Disposal Site), CLI-79-6, 9 NRC 673 (1979).
2_/ See 42 Fed. Reg. 61522 (December 5,1977).
-3/ " Order Disposing of Petitions to Intervene" (March 1,1978); " Order Granting Petition to Intervene" (April 3,1978) and " Order Granting Further Request for Leave to Intervene" (June 20, 1978).
4/ " Notice to Atomic Safety and Licensing Board of Withdrawal of Appil-cation and Termination of License for Activities at Sheffield" (March 8,1979).
i9 i
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Following a special prehearing conference, the Licensing Board is-sued an order in which it identified the three issues raised in the notice of hearing as follows:
- 1. Whether the Applicant " possesses" the source, byproduct or special nuclear material at the Sheffield site.
- 2. Whether NECO can unilaterally terminate License No.
13-10042-01 for activities at Sheffield without affirmative action by the Comn'ssion.
- 3. If NECO cannot terminate its license without affirmative action by the Commission, what conditions, if any, are appropriate to impose in order to protect the public health and safety as w as the environment before NECO may quit the site. pl Following a number of continuances granted by the Licensing Board at the bebcst of the parties to accommodate their attempt to reach a set-tlement agreement , the Board conducted a prehearing conference on August 19, 1986 during which it set a schedule for filing and responding to a summary disposition motion on the two legal issues identified by the Board: (1) whether USE possessed the material buried at Sheffield; and (2) whether USE had the right to terminate its license unilaterally without affirmative action by the NRC. 6_/ USE filed its motion on October 14, 1986, pursuant to the amended schedule ordered by the Board. N 5_/ "Prehearing Conference Order and Order Setting Time for Discovery" at 2 (September 9, 1980). The Licensing Board had dismissed NECO's site expansion application in a " Memorandum and Order Rul-ing on Motions to Withdraw Application and Dismiss Proceeding" (May 3,1979).
Ej " Memorandum and Order" at 6-7 (August 22, 1986).
7/ " Order" (September 24, 1986).
io III. DISCIESICN A. U.S. Ecology possesses the low level radioactive waste buried at its Sheffield site.
U.S. Ecology argues that the Commission's " policy as authoritatively expressed has always been that buried waste is not possessed." Motion at 8-22. Contrary to USE's characterization, the issue of whether buried waste is possessed is not a policy matter but a matter of law. And the law, as discussed below, establishes that USE possesses the buried waste at its Sheffield site until the Commission relieves it of that responsibility.
USE relies on a memorandum from Michael J. Bell, Chief, Low-Level Waste Branch, to Edwin J. Reis, Assistant Chief Hearing Counsel, as support for its argument that the buried waste at the Sheffield site is not in its possession. The memorandum, which communicated Mr. Bell's views to counsel during the development of the Staff's response to a NECO plead-ing, expresses his disagreement with counsel's interpretation of the Atom-ic Energy Act of 1954, as amended, 42 U.S.C. 5 2011 et seq. (AEA), as it applies to buried nuclear materials. However, Mr. Bell's responsibility at that time was in the technical area related to the regulation of low lev-el waste and not in the interpretation of the law regarding this area of regulation. In the area of his responsibility and expertise, Mr. Bell had concluded in 1979 that the buried material at Sheffield might constitute a radioactive harard to the health and safety of the public. U Mr. Bell's views, however, did not provide the basis for the position taken by the Staff in this proceeding. Rather, the Staff's views were reflected at that
-8/
See Affidavit attached to "NRC Staff's Response to Licensee's Motion for Emergency Action" (April 2,1979).
time in 'the Staff's Reply to Applicant's Motion to Dismiss the Proceedings, filed March 20, 1979. The Staff continues to subscribe to the views ex-pressed there.
The AEA and the Commission's regulations provide ample legal sup-port for the Staff's conclusion that USE possesses the waste buried at Sheffield.
- 1. The Atomic Energy Act Under the AEA, nuclear materials, whether special nuclear ma-terial, source material removed from its place of deposit in nature or byproduct material, SI must be under NRC license, unless subject to agreement state licensing. E AEA ff 53, 57, 62, 81, 42 U.S.C.
El 2073, 2077, 2092, 2111. No State or other person may receive, pos-secs or transfer such material without a Commission license. S See Rochester Gas and Electric Corp. (Sterling Power Project Nuclear Unit lio.1), AI,AD-507, 8 NRO 551 (1978). Although under the AEA the Com-mission may exempt certain uses, quantities or users of special nuclear material or byproduct material from license requirements, the Commission must first make a finding that the exemption of such quantities, uses or users of the material would not constitute an unreasonable risk to the health and safety of the public or be inimical to the common defense and security. AEA Section 57(d) and Section 81, 42 U.S.C. 55 2077(d)
-9/ These terms are defined in AEA Section lle, z and aa, 42 U.S.C.
55 2014e, z and aa.
-10/ Illinois, where the subject facility is located, is not at this time an agreement state under AEA 5 274, 42 U.S.C. 2021 (see also 10 C.F.R. Part 150).
11/1 " Person" is defined to include the states. AEA 5 11(S), 42 U.S.C.
I 2014(s).
I
o and 2111. Quantities of source material that in the opinion of the Commission are unimportant are also exempt from licensing. AEA Section 62, 42 U.S.C. Il 2092; 10 C.F.R. I 40.13. Thus, under the applicable provisions of the Act, all receipt, possession or transfer of material must be in accordance with the authority contained in an NRC license or regulations, unless an exemption has been granted by the Com-mission. Those in possession of such material must observe Commission regulations, license conditions sad orders to protect the public health and safety. Failure to follow reguLtions, license conditions or orders, or to be in possession of nuclear material or to transfer such material without the requisite authority, subjects one to enforcement proceedings and po-tential civil and criminal penalties. AEA Sections 228, 232, 234, 42 U.S.C. Il 2278, 2280, 2282.
- 2. The Commission's Regulations The NRC regulations implementing the above provisions of the AEA similarly provide that no person NI may receive, possess, use or transfer nuclear material without a license. See 10 C.F.R. Il 30.3, 40.3, 61.3 N and 70.0. No license for possession of such materials or right under such license may "be transferred , assigned or in any manner
-12/ " Person" is defined to include State and local governments.
10 C.F.R. II 30.4, 40.4, 61.2 and 70.4.
-13/ 10 C.F.R. Part 61 was promulgated December 27, 1982, 47 Fed. Reg. 57463. Its applicability to licenses for waste disposal facilities in effect on the effective riate of the rule, January 26, 1983, "will be determined on a case-by-case basis and implemented through terms and conditions of the license or by orders issued by the Commis-sion . " 10 C.F.K. I 61.1(a). USE's license was in effect on the effective date of Part 61. Thus, the provisions of Part 61 are not applicable to USE's license for activities at the Sheffield site unless imposed by order or license condition. No such action has been taken by the NRC with regard to this license.
disposed of, either voluntarily or involuntarily, directly or indirectly" without approval of the Commission. 10 C.F.R. II 30.34(b), 40.46, 61.24 and 70.36. Although no specific license is needed for the ownership of such material, (See,10 C.F.R. II 31.9, 40.21 and 70.20), possession of licensed material may not be transferred except to authorized persons where the transferor verifies the transferee has a specific license to pos-sess the material. 10 C.F.R. Il 30.41(c), 40.51(c), 70.42(c); Pochester Gas & Electric Co. , supra; Nuclear Advisors, Inc. , 2 AEC 196 (1962), 2 AEC 254 (1963).
- 3. Effect of Burial On the Need for a License Under the foregoinpr provisions of law and the implementing regulations, USE required and continues to require a license for the ma-terial buried at Sheffield until it no longer possesses the material or is otherwise relieved of responsibility for the material by the NRC. USE crgues that it is not responsible for the material buried on the land it leased from the State of Illinois on its theory that as a matter of Commis-sion policy buried waste is not possessed. b Motion at 8. However, to be relieved of responsibility for the buried waste at the Sheffield site, l USE would require a Commission exemption which the Commission has the authority to grant "upon a finding that it will not constitute an unreason-abic risk to the common defense or security and to health and safety of
[
the public." AEA 5 81; see also, AEA 58 57(d) and 62. USE has not been able to point to any Commission regulation or Commission finding l exempting from licensing persons in possession of licensed material re-
-14/ USE's Sheffield facility is sited on land owned by the State of Illi-nois. The 99-year lease agreement entered into in 1966 is attached to USE's motion as part of Exhibit 36.
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ceived from others as waste and buried in the quantities involved here.
Nor has the Commission found that the quantity or use or the possession by USE of the amounto and kinds of licensed byproduct, source and spe-cini nuclear material authorized to be buried on site would not constitute an unrensonable risk to public health and safety in the absence of contin-ued monitoring and control. Under the statutory scheme of the AEA and the Commission's regulations, the material at USE's Sheffield site must be under license. It is immaterial that it has been buried. The material USE accepted for burial was under license and there has been no Commis-sion action to remove it from the requirements of the regulations or oth-erwise to relieve USE of its responsibilities.
The regulations under which operations at Sheffield were con-ducted required persons who intended to dispose of waste by burial to apply for and receive a Commission license. 10 C.F.R 5 20.302.15/ The
-15/ The Commission's regulation in 10 C.F.R. I 20.302 dates to November 17, 1960, 25 Fed. Eeg. 10914. On January 18, 1961, the Commission amended Section 20.302 by adding the following statement at the end of the section:
The Commission will not approve any application for a license to receive licensed material from other persons for disposal on land not owned by the Federal govern-ment or by a state government.
26 Fed. Reg. 352 (January 18, 1961).
On December 4,1971, the Commission noticed in the Federal Register that:
- 1. Section 20.302 of 10 C.F.R. Part 20 is amended by designating all but the final sentence as paragraph (a); the final sentence as paragraph (b); and add-ing a new paragraph (c) to read as follows:
- c. The Commission will not approve any applica-tion for a license for disposal of licensed mate-(FOOTNOTE CONTINUED ON NEXT PAGE)
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regulations r'equired specification of the quantities and types of material to be buried, analysis of the site and provision of procedures for the minimization of the risk of unexpected or hazardous exposure. 10 C.F.R.
I 20.302(a). Other applicable regulations required USE to monitor the waste after burial, keep records of the waste buried and the results of the monitoring, and report any excess radiation coming from the buried waste or theft of the buried waste. See, 10 C.F.R. 55 20.401-409.
These requirements are inconsistent with and negate the idea that once the waste is buried it is of no regulatory consequence.
Thus, a licensee which engages in commercial waste burial does not lose responsibility for the land it has leased or the waste it has buried on that land under the Atomic Energy Act or the regulations of this Commis-sion. It is for the NRC, not the licensee, to determine when that re-sponsibility ends.
- 4. AEC General Counsel Hennessey's Memorandum USE also offers in support of its argument that it does not pos-sess the low level waste buried at Sheffield a memorandum dated July 7, 1964, to Harold Price, Director of Regulations, AEC, from Joseph Hennessey, the AEC's General Counsel. USE correctly identifies the gen-eral subject of the memorandum, the Ifeensing and regulatory authority of (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) l rial at sea unless the applicant shows that sea disposal offers less harm to man or the envi-
, ronment then other practical alternative meth-l ods of disposal.
t 36 Fed. Reg. 23138 (December 4,1971).
On December 27, 1962, the Commission moved paragraph (b) to Part G1 where an altered version appears as 5 61.14, 10 C.F.R. I 24.301(c) relating to ocean disposal became 10 C.F.R. I 20.302(b).
an agre'ement State over spacial nuclear material, where the agreement state licensee, which operates a land burial ground, does not have within its possession at any one time sufficient material to form a critical mass but where the cumulative amount buried in the ground is sufficient to form a critical mass. E Mr. Hennessey states that it is his opinion that special nuclear material disposed of by land burial is not possessed or used within the meaning of 10 C.F.R. I 150.11(b). He concludes that only unburied material need be counted in determining whether the opera-
) tor possesses an amount sufficient to form a critical mass.
Although USE reads Mr. Hennessey's memorandum to mean that buried material is not possessed, the memorandum addresses not posses-sion per se but whether Part 150 limits on critical mass for jurisdictional purposes are applicable to buried material. Mr. Hennessey's conclusion is that they are not. This is consistent with the Commission's oft-stated observation that criticality concerns do not extend to material that is properly buried pursuant to license conditions.
The Commission's regulatiens in Part 61 are explicit on this matter. They state:
Depending upon the nature of the wastes to be disposed of, and the design and proposed operation of the land disposal facility, additional information may be requested by the Commission including the following:
(b) Safety information concerning criticality, if appropriate.
(1) Any application to receive and pos-sess special nuclear material in quantities that would be subject to the requirerlents of 9 70.24, " Criticality accident require-ments" of Part 70 of this chapter shall demonstrate how the requirements of that 16/ Mr. Hennessy's memorandum is attached to USE's motion as Exhibit 2 and is discussed at 11-13 of the motion.
i section will be met, unless the applicant requests an exemption pursuant to i 70.24(d). In determining whether re-ceipt and nossession would be subject to the requirements of I 70.24, the applicant shall not consider the quantity of special nuclear material that has been disposed of.
(Emphasis added),
10 C.F.R. I 61.16(b)(1) . The Staff agrees with USE that Part 150 limi-tations govern the amount of unburied SNM an Agreement State licensee may possess at a given time; however, the Staff does not agree that bur-fed material is not possessed. USE's conclusion is not compelled by Part 150, nor is it compelled by General Counsel Hennessey's interpreta-tion of Part 150, an interpretation v'hich is valid today and entirely con-sistent with Part 61.
The Staff's reading is supported by the Statement of Consider-ation published on the Commission's amendment of 10 C.F.R. I 150.11(b) on September 22, 1965, 31 Fed. Reg. 15145. The Commission stated, Even though the total quantity of special nuclear material which a person is suthorized to possess or use within an agreement state may be sufficient to form a critical mass, no problems of accidental criticality are presented so long as the quantity of material possessed and used at l
any separate location at any one time is insufficient to i form a critical mass.
Thus, the concern of the IIennessey memorandum is shown to be based on criticality considerations and not on whether buried waste is possessed.
l 5. 10 C.F.R. I 20.302 l
USE argues that the AEC/NRC did not distinguish between dis-posal at sea and burial at AEC-designated sites or at leased sites owned by the State or federal government under Section 20.302(b), and that land burial like sea disposal was considered safe, permanent and final.
Motion at 16. USE's argument is not well-taken. Had the AEC been as convinced of the safety and finality of land disposal as USE now argues
that it was, there would have been no need to limit land disposal of ra-dioactive waste to sites owned by agencies of the Federal or state govern-ments. Further, in relying on the AEC's thinking that sea disposal was safe and permanent, USE ignores the current regulation in 10 C.F.R.
I 20.302(b) setting limitations on ocean disposal and the Statement of Consideration accompanying the promulgation of the rule that is now 5 20.302(b). On December 4, 1971 (36 Fed. Reg. 23138), the Commission stated:
With respect to the dumping of radioactive waste, the CEQ report [ Ocean Dumping: A National Policy a Report to the President prepared by the Council on Environmen-tal Quality, October 1970] made the following findings and recommendations:
The current policy of prohibiting ocean dump-ing of high-level radioactive wastes should be continued . Low-level liquid discharges to the ocean from vessels and land-based nuclear facilities are, and should continue to be con-trolled by Federal regulations and international standards. The adequacy of such standards should be continually reviewed. Ocean dump-ing of other radioactive wastes should be pro-hibited. In a very few cases, there may be no alternative offering less harm to man or the
- environment. In these cases ocean disposal l should be allowed only when the lack of alter-
, natives has been demonstrated. Planning of l activities which will result in production of i radioactive wastes should include provisions to I avoid ocean disposal.
The Atomic Energy Commission's policy since 1960 is con-sistent with the policy expressed in the CEQ report.
The AEC has not permitted ocean disposal of high-level
! radioactive waste. The release of low-level liquid efflu-ents to the ocean from vessels and land-based nuclear facilities, such as nuclear power plants, is subject to Federal contmls and continually reviewed.
The Atomic Energy Commission's existing policy to phase out sea disposal which is consistent with the spirit of the CEO report, the alternative means available for dis-( posal of radioactive waste, and the lack of impact on the
- nuclear industry of discontinuance of sea disposal of
1 radioactive waste provide the basis for the amendment to 10 C.F.R. Part 20. The adoption of this rule change J does not mean that the Commission considers sea disposal of radioactive waste an unsafe practice. Rather, it ap-plies to licensee operations a policy which already exists for the AEC's own operations and is consistent with the CEQ's recommendations with respect to sea disposal of radioactive waste. The provisions of 5 20.302 do not presently, and will not under this amendment, apply to low levels of radioactive material in liquid effluents re-leased from nuclear facilities in accordance with other provisions of the Commission's regulations.
Under the amendment to Part 20 set forth below, the Atomic Energy Commission would consider, on a case-by-case basis, applications for disposal of radioactive waste at sea. The applicant would be required to show that sea disposal offers less harra to man or the environ-ment than other practical alternative methods of disposal.
- 6. 10 C.F.R. 5 20.304 USE argues that the Commission's Statement of Consideration on the deletion of 10 C.F.R. I 20.304 supports its argument that buried ma-terial is not possessed. See Motion at 21-22. USE seems to think that
, because the Commission stated that the deletion of Section 20.304 would '
not require any action concerning material already buried under the present provisione of 5 20.304, the Commission viewed material buried under f 20.304 as not possessed. However, USE's conclusion is not cor-rect. Only persons holding a specific license were authorized to bury material under the general license of f 20.304. Therefore, it was the specific license that affected the Ifeensee's authorization to possess, not 5 20.304. The Staff has never taken the position that burial under the general license of I 20.304 relieved the burier of his license obligations under the specific license that he held.
- 7. The Illinois Radioactive Wastes Act and USE's Lease USE cites Section 6 of the Illinois Radioactive Wastes Act,111.
1 Ann. Stat, S.H. A. ch, 11? i, 9 230 (Smith IIurd 1980), the provisions of
which w'ere incorporated in the Sheffield lease, for the proposition that it is Illinois not USE that possesses the wastes buried at Sheffield. EI Ilowever, Section 6, like Dr. Yoder's letter interpreting it, N concerns ownership, not possession. The Appeal Board's decision in Sterling, su-pra, makes clear that ownership and possession are not synonymous.
USE states thct neither the Staff nor the State can seriously maintain that NECO (USE) remained in possession of waste whose legal title passed to the State even prior to burial. Sections 31.9, 40.21 and 70.20 of the Commission's regulations state that one may receive title to and own byproduct, source and special nuclear meterial without regard to quantity with only a general license. However, a specific licensee is required to 1_7 / Section 6 of the Illinois Radioactive Wastes Act reads as follows:
It is recognized by the General Assembly that any site used for the concentration and storage of ra-dioactive waste material will represent a continuing and perpetual responsibility in the interests of the public health, safety and general welfare, and that the same must ultimately be reposed in a sovereign government without regard for the existence or non-existence of any particular agency, instrumen-tality, department, division or officer thereof. In all instances lands , buildings and grounds which are to be designated as sites for the concentration and storage of radioactive waste materials shall be acquired in fee simple absolute and dedicated in perpetuity to such purpose. All rights, title and l interest in, of and to any radioactive waste materi-als accepted by the Department of Public Health for permanent storage at such facilities, shall upon acceptance become the property of the State and I
shall be in all respects administered, controlled, l and disposed of, including transfer by sale, lease, l loan or otherwise, by the Department of Public l Health in the name of the State.
i The Staff has provided a copy of the Act for the Board's convenience, g/ Dr. Yoder's letter is attached to USE's motion as Exhibit 21.
acquire, deliver, receive, possess, use, transfer, import or export spe-cial nuclear material. See, Sterling, ALAB-507, supra. Thus, the Staff does in fact maintain that even if Illinois owns the material buried at Sheffield as USE contende, it does not possess it as it lacks a specific license.18I--
B. U.S. Ecology has not teminated and may not unilaterally teminate its license; its license continues in force pending Cmmission action on USE's applicatfon.
U.S. Ecology states that it terminated its License No. 13-10042-01 for activitics at Sheffield by notification to the NRC dated 1(larch 8,1979.
It argues that the Staff's position that USE did not have the right to terminate unilaterally by notification without affirmative action on the part of the NRC is not supported by any provision of the AEA, applicable NRC regulations or the terms of the license itself. Motion at 30-31. USE states that until after Flarch 8,1979, the date on which it sought to ter-minate, termination was assumed by AEC/NRC if the agency did not hear from a licensco regarding renewal. It also suggests that the Staff is at-tempting to apply the requirements of Part 61 to the termination of USE's Sheffield license despite Part Gl's pest-dating USE's " termination." Mo-tion at 31-33. However, even though Part 61 is applicable by its terms on a case-by-case basis to licenses in effect on the date that Part 61 be-came effective, January 26, 1986, the Staff has not attempted to impose the terms of that Part on USE but rather limited its enforcement case against USE to the fifteen conditions filed by the Staff with the Board in July, 1980. USE states that the AEC/NRC allowed licenses to terminate
-19/ The Staff does not maintain that the question of ownership may not be significant in the contractual relationship between Illinois and USE. However, that matter is beyond the scope of the two issues identified by the Board as amenable to summary disposition.
when the persons who held them failed to contact the agency concerning renewal. See, Motion at 31. Although USE is correct regarding the con-ditions under which the Commission permitted some licensees to terminate, USE has ignored the fact that even prior to USE's Plarch 8,1979 . action, the Commission had launched an effort to identify former licensees whose sites might threaten the public health and safety.
- 1. NRC's Effort Regarding Terminated Source Material Licenses The NRC's effort regarding terminated source material licenses is reflected in a letter of October 15, 1976 from the NRC's Executive Di-rector for Operations, Lee V. Gossick to Monte Canfield, Director of the Energy and Minerals Division , U.S. General Accounting Office.
Mr. Gossick states:
It is the current NRC practice, and it was the practice of the AEC Regulatory staff previously, to evaluate each licensed activity at the time of license expiration or ter-mination to determine whether decontamination of facili-ties and equipment by the licensee and close-out inspection by the Regulatory staff was necessary.
These determinations were based on the type, form and amount of material authorized , and the nature of the activity conducted. For example , activities involving scaled sources of radioactivity or short half-life radioac-tive materials, where there was little possibility of a contamination problem, were not of concern in this re-i gard. However, attention was directed to those activi-
- ties which involved the processing or use of radioactive l
material in unsealed form where it was likely that con-l tamination of equipment and facilities could occur.
i l
As you point out in your letter, the documentation for determining that facilities were decontaminated (up to the early '60's) was not as complete as we now require.
(Emphasis added).
l l The NRC contracted with the Oak Ridge National Laboratory (ORNL) to evaluate terminated source material licenses from NRC's docket files with respect to potential for residual radiological health problems.
ORNL cvaluated some 8,275 docket files in the course of this effort, which is described in NUREC/09-1016 (January,1980).
A number of former licensees whose licenses had terminated volunteered to clean up the sites where they had conducted their licensed activities. See, e.g. Ictter of June 10, 1981, from E. R. Brigham, Presi-dent Amax Environmental Services . Inc. to William Crow, NMSS, NRC, which is attached to this response. In addition, at least one of the let-ters to former licensees reveals that applications for termination were not totally foreign to the NFC prior to March 8, 1979. In a letter to the Cotter Corporation concerning the Latty Avenue Site where it had con-ducted licensed activities, Richard Cunningham, Acting Director, Division of Fuel Cycle and Material Safety, NMSS, NRC, stated:
As you are aware, the NRC conducted a radiation survey at the Latty Avenue Site in Hazelwood, Missouri, where Cotter Corporation previously stored and processed source material under Source Material License No.
S UB-1022. Our survey has raised a serious question as to whether statements Cotter Corporation made in its application for termination of its license, with regard to contamination levels and removal of all licensable materi-als, were correct and, hence, whether the Commission's action terminating your license was founded on accurate representations by you.
The Commission has requested that the Energy Research l and Development Administration perform a more detailed i survey of this site. At the conclusion of this survey and an evaluatio required action. gthereof, you will be advised of any
- Thus, it is clear not only that information was required of licensees ap-plying to terminate but also that the NRC asserts continuing authority 1
l over former licensees whose license terminations may have been based on incorrect information. USE is mistaken in representing that it was its I
20/ The letter is attached to this response.
attempt to terminate its license unilaterally that resulted in a whole new regime regarding terminations. The record cited above reflects the Com-mission's growing awareness and growing concern regarding license termi-nations. Further, it demonstrates that the effort was well underway before USE notified the NRC on March 8,1979, that it was terminating its license.
- 2. USE's License for its 11anford Facility USE states that NECO received a letter from R. Dale Smith, Chief, Low-Level Waste Licensing Branch, regarding its license for its IIanford , Washington facility. b Motion at 34. USE relies on a statement made there, "If we do not receive your renewal application by June 29, 1979, we will assume you do not wish to renew this part of the present License 13-10042-01," for the proposition that even after the events of March 8,1979, the Staff acknowledged that " continuation of the license and disposal activities at IIanford was at the option of the licens-ee." Id_. Ilowever, the letter does not relate to disposal activities but to receipt and possession of senied packages of source, byproduct, and SNM in non-Agreement States. Thc Staff's statement that it would assume USE
- did not wish to review its license if a renewal application was not re-ceived by a specified date referred only to these non-disposal activities.
! The Commission's Regulations Concerning Termination 3.
i USE states that it was not until after NECO's termination notif1-cation on March 8,1979, that the Commission adopted specific changes in Parts 30, 40 and 70 to require a materials license to " notify the Commission in writing when the licensee decides to permanently discon-l 2_1/
1 The letter is attached to USE's motion as Exhibit 23.
l l
tinue all activities involving materials authorized under the license." Mo-tion at 31. US E's statement is in part correct; the regulations in 10 C.F.R. II 30.34(f), 40.41(f) and 70.32(h) were adopted on March 22, i
1979 and became effective June 5,1979. 44 Fed. Reg.17479. Powever, the proposed amendment was published for comment on July 27, 1978 (43 Fed. Reg. 32431), almost a year before the events of March 8, 1979.
More importantly, that regulation is no longer in force but has been su-perseded by 10 C.F.R. El 30.36, 40,42 and 70.38, published July 15, IDP3 (48 Fed. Reg. 32324). In the Statement of Consideration of the adoption of 10 C.T.R. II 30.36, 40.42 and 70.38, the Commission stated:
Previously, the Commission's regulations required Ifeens-ces under 10 C.F.R. Parts 30, 40 and 70 to notify the Commission in w-iting when the licensee decided to ter-minate operations. The requirement is contained in the final rule. Licensees were not required by regulation to i describe the disposition of nuclear materials authorized
- under the license or to characterire radiological condi-tions at the time of license termination. The Commission has requested information concerning disposition of nu-clear materials and decontamination on an individual-case-basis. Information concerning residual radioactive contamination has been requested only where it was sus-pected of being a problem. The rule is necessary to establish clear procedures for termination of licenses and to establish a more coherent regulatory framework. It will enable the Con. mission to determine that there is no
! significant risk to public health and safety before a 11-censee's responsibility for nuclear materials is terminated. ...
The rule requires each licensee who does not apply for license renewal to submit appropriate information concerning the disposal of licensed nuclear materials and _
on the absence or presence of residual radioactive con-tamination. If radioactive levels are suitable for release, the Commission will notify the licensee, in writing, that the license is terminated. If significant residual radioac-tive contamination is detected, the license continues in force , beyond the expiration date if necessary, with respect to possession of and responsibility for the resid-ual radioactive contamination. The licensee must contin-uc decontamination and control of contaminated areas until radiation levels are suitable for release and the Commission notifies the licensee , in writing, that the license is terminated. In addition , the licensee must
i submit a plan for decontamination and a final radiation survey report.
In answer to a comment concerning the applicability of the rule to licensees who had submitted requests for decommissioning or termina-tion prior to the promulgation of the rule, the Commission responded:
These amendments will codify procedures that are cur-rently being used on an individual-case-basis. This rule does not significantly alter existing procedures. ...
The provisions of the rule are applicable to any licensee who decides to terminate a license after [the effective date of the rule, July 15, 1983).
The Staff believes that because the rule does not alter existing procedures, it is applicable to USE and that it was the Commission's in-tention in promulgating the rule to include licensees like USE in its applicability.
Without regard to whether or not USE sought license renewal, it has the materials and must have a license for them under the law until relieved of that responsibility by the NRC. USE cannot terminate its license by withdrawing its application for renewal, as it would then be in possession of the materials in violation, of law. This Licensing Board could not sanction such a violation in the exercise of its discretion under 10 C.F.R. I 2.107(a). Before any license withdraws!, steps must be tak-en to hssure that the public health and ERfety are protected. Such actions might include the approval of e .'/an. ' 3ree to receive the material or possibly tite exemption of the material upon a finding that there can be no " credible possible contamination of the ground, water or air." Walker Trucking Co. , 4 AEC 068 (1961); see also Industrial Waste Disposal Corp.
1 AEC 399, 401 (1960). However, abs,ent such a determination USE re-mains responsible for the waste it has buried and must have a license.
USE cannot unilaterally find itself to be in compliance with the license and therefore of itself conclude that there is no threat to the public health and safety in its abandonment of the Sheffield site. It is the responsibility of the NRC to determine if license conditions and regu-lations are met and whether a license may be terminated. USE's renunci-ation of its lease with Illinois cannot affect its obligations regarding the material buried under its license. The Commission's regulations provide that a license for nuclear materials may not be " transferred, assigned or in any manner disposed of, either voluntarily or involuntarily, directly or indirectly" except with the approval of the Commission. 10 C.F.R.
II 30.34(b), 40.46 and 70.36. No material may be transferred unless the transferor first verifles that the transferee has a license or other Federal authority permitting it to receive the material. 10 C.F.R. Il 30.41(c),
40.51(c), 50.42(c); Nuclear Advisors Inc. , supra. No State or other it ,
person can receive or possess riaterials without authorization of the Com-mission. 10 C.F.R. 55 30.3, 40.3 and 70.3. USE's purported transfer of the buried materials to Illinois by renunciation of the lease does not re-licyc it of possession or responsibility for the material. Illinois is not a licensed recipient of the materials, and thus USE cannot transfer the ma-
! terials or responsibility for the materials to the State.
The foregoing does not mean that USE is bound forever to its NRC license. What it does mean is that suitable arrangements must be made, subject to NRC approval, for termination of the license on findings that such action and the conditions would be consistent with the public health and safety. This could be done, among other ways, by transfer of the material to another NRC licensee, such as a state, should it be licensed, or by granting an exemption on a finding that the site, after i
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proper treatment, may hold the buried materials without any undue risk to the health and safety of the public. AEA il 57, 62 and 81.
USE argues that Section 9(b) of the APA was intended as a shield for the regulated and not as a sword for the regulator. Motion at 35-46. However, the Staff need not and does not rely on Section 9(b) for its argument that USE is responsible for the material buried at Sheffield, and therefore, does not address USE's argument in which it relies on cases decided under the A.P. A. The Staff's position is based on health and safety considerations and is, thus, distinguishable from the A.P. A. line of cases relied on by USE. As discussed above, the Staff's baris for asserting that USE has a continuing responsibility for the site does not rest on its timely application to renew.
IV. CONCLUSION Por the reasons discussed, the Licensing Board should find that USE possesses the material buried at Sheffield and that it lacks the right to terminate its license unilaterally without affirmative action by the NRC.
The Licensing Board should deny U.S. Ecology's motion.
Respectfu11y subnitted, p , o Ann P. Hodgdon Counsel for NRC Staff Dated at Bethesda, Maryland this 10th day of Novanber,1986