ML20212M702

Order Directing Parties to Make Effort to Settle All Issues by Negotiation.Due to Length of Time That Proceeding Pending,Aslb Intends to Move Expeditiously to Hearing in Dec.Served on 860826

ML20212M702
Person / Time
Site:	02700039
Issue date:	08/22/1986
From:	Cotter B, Kline J, Luebke E Atomic Safety and Licensing Board Panel
To:	ILLINOIS, STATE OF, NRC OFFICE OF THE GENERAL COUNSEL (OGC), U.S. ECOLOGY, INC. (FORMERLY NUCLEAR ENGINEERING
References
CON-#386-487 78-374-01-OT, 78-374-1-OT, SC, NUDOCS 8608270061
Download: ML20212M702 (8)

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's DOCKETLE USNPC UNITED STATES OF AMERICA NUCLEAR REGULATORY C0lHISSION ATOMIC SAFETY AND LICENSING BOARD OFFICE OF itut iAn <

Before Administrative Judges: DOCKETgAJENVICI.

r. erry'R klin N bb26IN Dr. Enmeth A. Luebke

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In the Matter of: Docket No. 27-39 SC U.S. EC0 LOGY, INC. ) ASLBP No. 78-374-01 OT (Sheffield,IllinoisLow-Level Radioactive Waste Disposal Site) August 22, 1986 MEMORANDUM AND ORDER On August 19, 1986 a prehearing conference was held to receive reports on the status of settlement negotiations in the captioned proceeding and to schedule motions and a hearing if necessary.

Settlement negotiations have been conducted among the parties for some five years. This Memorandum and Order, based on that prehearing conference and the history of this proceeding recited below, establishes a schedule for resolving the issues in this proceeding.

History of the Case In August 1968, the Nuclear Engineering Company, Inc. (NECO) filed an application to renew its license to operate a low level radioactive Dobk $N 9 hb0 bL

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N waste disposal site near Sheffield, Illinois. Since the filing was apparently then enough under Comission regulations to continue the licensee's obligations and responsibilities, no formal proceeding was instituted for almost ten years. In March 1978 a licensing board was established to consider the renewal application. Nine months later, Nuclear Engineering moved to suspend the proceeding. After the parties filed responses, the Board, by order issued March 7,1979, scheduled oral argument on the motion.

The next day,. March 8, NECO took two actions which ultimately led to this proceeding. First, the licensee filed a " Notice ... of Withdrawal of Application and Termination of License for Activities at Sheffield". Second, the licensee notified the Director, Nuclear Materials Safety and Safeguards, that as of that day NEC0 was withdrawing its application to renew its license and expand the Sheffield site and that it was unilaterally tenninating its license for all activities there.

The Director promptly (March 9,1979) denied Nuclear Engineering's authority to unilaterally terminate and directed it to take all actions necessary to protect the public health and safety in connection with the site. Following the licensee's denial of the Director's authority, the Director issued a show cause order which the licensee appealed to the Commission. On June 6,1979, the Comission sustained the show cause

'i order and issued a Notice of Hearing which directed the Licensing Board to consider NEC0's authority to terminate its license unilaterally.

Since then, the Sheffield site has been closed, and licensee's corporate successor, U.S. Ecology, Inc., has agreed with the Commission to remain on the sitel acting as if it were an NRC licensee while it litigated its legal position. U.S. Ecology also performs site monitoring and maintenance work under Illinois State Court order.

Following a period of discovery after remand, the NRC Staff submitted 15 conditions for site closure to the Board. Following substantial negotiations, U.S. Ecology submitted its settlement proposal two years later. Substantial progress was made in resolving the technical and administrative matters at issue. A joint filing by the parties dated November 15, 1983 reported agreement in principle on 11 of 14 technical conditions as between U.S. Ecology and the NRC Staff and that additional progress was being made on the three remaining technical conditions. The 15th condition, long-term institutional arrangements, was under discussion between U.S. Ecology and the State of Illinois, and i

I As a part of its license renewal application, the licensee sought to expand the site from 20.45 acres to 188.45 acres. The portion of the application concerning site expansion was dismissed by the Licensing Board in an unpublished Order issued May 3,1979. That dismissal was affirmed by the Appeal Board. Nuclear Engineering Co. , Inc. ,12 NRC 156 (1980).

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4 considerable progress appeared to have been made. However, the parties did report difficulty in agreeing on the necessary financial arrangements for continuing custody and monitoring of the site. Joint Report on the Status of the Settlement Negotiations, dated November 15, 1983.

The Report also noted the parties' hope that the site could be transferred to the Secretary of Energy under section 151 of the Nuclear Waste Policy Act of 1982, 2 U.S.C. 9 10171 (1983). However, implementing regulations were not immediately forthcoming, and it now appears that the. terms and conditions necessary to transfer custody to the Department of Energy are ;uch that neither Illinois nor li.S. Ecology are willing *,o accede to them.2 Tr. 76-79.

In the " Fourth Joint Report on the Status of Settlement Negotiations" dated April 24, 1986, the parties reported that final DOE regulations were still pending and that Illinois and U.S. Ecology had resumed discussions to resolve the remaining issues. However, as a precaution, the parties requested that a prehe.aring conference be scheduled in July. After resolving schedule conflicts, the August 19, 2

An additional cause of delay in this proceeding has been the change in certain Illinois officials as well as counsel for the state and the NRC Staff over the years.

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1986 prehearing conference was held to discuss the status of the attempt at a negotiated settlement and other scheduling matters.3 Scheduling Settlement Agreement Substantial progress in recent negotiations between Illinois and U.S. Ecology were reported at the prehearing conference. Tr. 13-21. As a result of prehearing conference discussions (Tr. 21-22, 25, 28-29, 32-39), the following schedule was agreed upon for reaching a negotiated settlement of the case:

1. August 30, 1986 - Illinois completes technical staff meeting.

2. September 6, 1986 - Illinois completes legal staff meeting on draft settlement agreement.

3. September 13, 1986 - NRC Staff receives draft settlement 3

0ne additional factor bears on this proceeding. For almost a year the State of Illinois has been conducting informal discussions with the NRC Staff concerning establishment of agreement state status. Illinois intends to apply formally for such status in mid to late September 1986, and could enter into such an agreement with the Nuclear Regulatory Comissior, in January 1987. Tr. 9, 31-32, 47-51.

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agreement from the parties.

4. September 27, 1986 - NRC Staff responds to draft settlement agreement.

5. October 7-9, 1986 - All parties meet to discuss and seek to resolve any remaining issues in the draft settlement agreement.

6. October 18, 1986 - Formal response of the parties to NRC staff comments on draft settlement agreement.

7. November 18, 1986 - Final settlement agreement signed by the parties is received by the Board, or the Board receives notice that all or a part of the issues cannot be settled and c hearing is required.

The foregoing dates are set as extremes. Any step that can be completed earlier should be in order to expedite the process.

Summary Disposition The parties also discussed summary disposition of certain issues proposed in the Board's memorandum and order of August 1,1986. Tr.

51-59,63). The Board finds that the following issues are appropriate for resolution by summary disposition:

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1. Whether the Applicant " possesses" the source, byproduct, or special nuclear material at the Sheffield site.

2. Whether U.S. Ecology can unilaterally terminate License No.

13-10042-01 for activities at Sheffield without affirmative action by the Commission.

The schedule for filing sumary disposition motions as discussed at the prehearing conference is modified to facilitate the settlement effort, as follows:

1. September 29, 1986 - U.S. Ecology, Inc. files sumary disposition motion

2. October 27, 1986 - NRC Staff and State of Illinois file responses l

l The Board will make every effort to issue its decision within three weeks of receipt of the last filings.

The Board hereby renews its directive to the parties to make every effort to settle all (or as many as possible) of the issues in this proceeding by negotiation. If a negotiated settlement does not resolve all the issues, in light of the substantial length of time that this

! proceeding has been pending and the substantial number of studies which

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'4 have been completed and documents which have been exchanged, the Board intends to move expeditiously to hearing in the month of December.

THE ATOMIC SAFETY AND LICENSING BOARD I

B. Paul Cotter, Jr., Chairman ADMINISTRATIVE JUDGE f

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Jerry R. Kline V ADMINISTRATIVE JU E hs Emmeth A. Luebke ADMINISTRATIVE JUDGE Dated in Bethesda, Maryland, this 22nd day of August, 1986 Judge Kline was not available to sign the order but concurs in its contents.

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