ML20212P183

Memorandum & Order (Clarifying Finalty of Decision).* Us Ecology,Inc 870309 Motion That Board Clarify 870220 Memorandum & Order Denying Us Ecology,Inc Motion for Summary Disposition Granted & Proceeding Dismissed.Served on 870312

ML20212P183
Person / Time
Site:	02700039
Issue date:	03/10/1987
From:	Cotter B, Kline J, Luebke E Atomic Safety and Licensing Board Panel
To:	U.S. ECOLOGY, INC. (FORMERLY NUCLEAR ENGINEERING
References
CON-#187-2776 78-374-01-OT, 78-374-1-OT, LBP-87-5, SC, NUDOCS 8703160017
Download: ML20212P183 (6)

Text

-

Hy*

c.

DOCKETED USHRC .

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 IMR 11 P3 N7 ATOMIC SAFETY AND LICENSING BOARD CFFICE OF SEL6Gid .'

Before Administrative Judges: $[Aifcf B. Paul Cotter, Jr. , Chairman Dr. Jerry R. Kline Dr. Emmeth A. Luebke SERVED MAR 121987 In the Matter of: . Docket No. 27-39 SC

)

U.S. ECOLOGY, INC. ) ASLBP No. 78-374-01 OT

)

(Sheffield,IllinoisLow-Level )

Radioactive Waste Disposal Site) ) March 10, 1987 )

)

MEMORANDUM AND ORDER m (Clarifying Finality of Decision)

In a March 9, 1987 conference call among the parties to this proceeding, licensee U.S. Ecology, Inc. orally moved: (1) that the hearing of any remaining issues in this proceeding be postponed indefinitely; and (2) that the Board cl.arify, for purposes of appeal, the degree of finality of its February 20, 1987 Memorandum and Order denying U.S. Ecology's motion for summary disposition ("the decision").

In The Matter of U.S. Ecology, Inc., 25 NRC (LBP-87-5,1987).

Certain holdings in the decision, which addressed the obligations of the holder of a license to bury low level radioactive waste, addressed questions of first impression.

g31%k h2 [

C J S6 2-

\

l

l.

In support of its motion, U.S. Ecology stated that the parties were i quite close to settlement of the radiological waste site issues and were

. still negotiating settlement of issues concerning an adjacent chemical disposal site. U.S. Ecology is scheduled to go to trial in the Illinois state court on issues concerning the chemical site on March 30, 1987.

In addition, U.S. Ecology has asked the Commission to retain jurisdiction over the Sheffield radiological waste site issues when Illinois becomes an agreement state. That transfer is currently scheduled to become effective in mid-April 1987, a substantial slip since the originally scheduled effective date of July 1986. NRC Staff opposes that retention of jurisdiction, and the Commission has not yet .

ruled on the matter.

Illinois affirmatively supported U.S. Ecology's motion, stating that it was ready to sign the agreement concerning the Sheffield radiological site and would meet with U.S. Ecology on March 10, 1987 concerning the remaining chemical site issues. Illinois further stated its belief that the Board's February 20, 1987 decision effectively resolved all issues in the case by holding that U.S. Ecology was bound by the requirements of 10 CFR, Part 61, in stabilizing and closing the Sheffield site. Illinois supports U.S. Ecology's objective of obtaining appellate review of the Board's decision.

- _ ,b The NRC Staff stated that it did not object to U.S. Ecology's j motion. It suggested that a Board order could effect the postponement and appeal results sought.

The Board's February 20, 1987 decision ruled specifically on motions addressing two of three issues the Board had established as controlling in the case. The Board held that a private company licensed by the Nuclear Regulatory Commission to operate a low level waste disposal site at Sheffield, Illinois, could not unilaterally terminate that license without Conrnission approval, that the licensee's responsibility for nuclear waste did not tenninate with its burial, and that specific license language "was intended to bind U.S. Ecology to the site stabilization and closure requirements ultimately set out in [10 CFR] Pact 61." Ibid., Slip Opinion at 26.

The third issue remaining to be addressed is as follows:

If [U.S. Ecology] cannot terminate its license without affirmative action by the Commission, what cceditions, if any, are appropriate to impose in order to protect the public health and safety as well as the environment before [U.S. Ecology] may quit the site.

In The Matter of U.S. Ecology, Inc., Docket No. 27-39 SC, Memorandum dated August 1, 1986 (unptblished), fn. p. 2. On reflection, we agree with Illinois that, in essence, the third issue was resolved by the February 20, 1987 decision holding U.S. Ecology bound by 10 CFR, I

(

Part 61. That regulation spells out the criteria for determining what k needs to be done to stabilize and close the Sheffield site. The actual

, steps taken are normally reviewed and evaluated by the NRC Staff without the need for an adjudicatory board's involvement, a circumstance that certainly seems to describe the present posture of the parties to this proceeding as a result of our decision on sumary disposition.

Because we have held that site closure conditions at least as stringent as those required by Part 61 may be imposed for Sheffield, the issues raised by the show' cause order that gave rise to this case effectively have been decided. The sole question referred to this Board .-

by the Comission in its June 6,1979 Notice of Hearing, namely, whether [U.S. Ecology] can unilaterally terminate License No.

13-10042-01 for activities at Sheffield without affirmative action by the Comission has been answered in the negative.

The process for effecting stabilization and closure is now governed by Part 61. See, for example, 10 CFR 61.28 and 61.31 (1986).

Therefore, the subject matter of this case is in a new procedural posture. The specific terms and conditions of stabilization and closure are to be worked out through normal staff review not involving adjudication. Adjudication would only become necessary in the

3

k. ' 0 event of a dispu'te arising under the new (to this licensee) Part 611

_ procedures.. Accordingly, we hold that all issues in this nroceeding

,=

• have been resolved and that this proceeding is concluded.

Pursuant to 10 CFR 2.760 of the Commission's Rules of Practice, the Board's February 20, 1987 decision shall become effective immediately.

It will constitute the final decision of the Commission thirty (30) days from the date of its' issuance unless an appeal is taken in accordance with 10 CFR 2.762 or the Commission directs otherwise. See also 10 CFR 2.785'and 2.786 (1986). Any party may take an appeal from this decision by filing a Notice of Appeal within ten (10) days after service

of this decision. Each appellant must file a brief supporting its position on appeal within thirty (30) days after filing its Notice of Appeal [ forty (40) days if the Staff is the appellant]. Within thirty (30) days after the period has expired for the filing and service of the briefs of all appellants [ forty (40) days in the case of the Staff], a party who is not an appellant may file a brief in support of or in opposition to the appeal of any other party. A responding party shall file a single, responsive brief only, regardless of the number of

appellants' briefs filed. See 10 CFR 2.762 (1986). In view of the I

[ imminence of agreement state status for Illinois, a more abbreviated

- schedule may be desirable.

l

-<v < <,__-,, --- , , -c.r,_...,_m-,, , ,y-,-.. , , - ,, ._

0 ORDER

_j For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 10th day of March 1987, ORDERED

~

1. That U.S. Ecology's motion to clarify the finality of decision is granted;

2. That U.S. Ecology's motion to defer hearing is denied as moot; and

3. That, all issues having been resolved by this Board's

. Memorandum and Order of February 20, 1987, the proceeding is dismissed.

THE ATOMIC SAFETY AND LICENSING BOARD

/ ff' af B. Pdul Cotter, Jrt,/ Chairman ADMINISTRATIVE JUDGE h

gr. Jerry' R. Kline ADMINISTRATIVE JUDGE

/ ./t[ /l

'pyDr.EmmethA.Lueyke'

ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland, this 10th day of March, 1987.

• Dr. Luebke was unavailable to sign this Order but concurs in the result.

l

, - - - - .- - - - , _ , . . , , - - - , , . > - - - , - -- ,-