ML20214N115
| ML20214N115 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 05/28/1987 |
| From: | Hodgdon A, Robert Weisman NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#287-3543 SC, NUDOCS 8706020069 | |
| Download: ML20214N115 (16) | |
Text
_ _ - ___________________________________________ -__
JM3 May 28, 1987
- DOC ME TEC' USNPC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 fiAY 29 P3
- 39 BEFORE THE ATOMIC SAFETY AND LICENSING APPEALrAOARD ,
UOLnt ips .._ a ar ar D Rl. N )'
In the Matter of )
)
US ECOLOGY, INC. ) Docket No. 27-39 SC
)
(Sheffield, Illinois Low-Level )
Radioective Waste Disposal Site) )
NRC STAFF MOTION TO TERMINATE PROCEEDING ON APPEAL AND TO VACATE LICENSING BOARD'S DECISIONS; NRC STAFF RESPONSE 'rO US ECOLOGY'S MOTION TO VACATE I. INTRODUCTION On May 13, 1987, the Commission approved a proposed agreement with the State of Illinois whereby the Commission would relinquish and Illinois would assume certain regulatory authority pursuant to Section 274 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. I 2021. O The regulatory authority to be assumed by Illinois includes jurisdiction over low level radioactive waste disposal. US Ecology's low level radioactive waste disposal site , located near Sheffield, Illinois, is the subject of an NRC enforcement proceeding, initiated by a show cause order issued March 20, 1979. The Atomic Safety and Licensing Board l
l
-1/ Memorandum dated May 13, 1987 from Samuel J. Chilk to Harold R.
Denton and Victor Stello , Jr.,
Subject:
SECY-87-104-Proposed Agreement Between The State Of Illinois And U.S. Nuclear Regulatory Commission Pursuant To Section 274 Of The Atomic Energy Act Of 1954, As Amended (hereafter, "Chilk Memorandum",
copy attached).
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8706000069 870528 PDR C
ADOCK O2700039 PDR h]
decisions of February 20 and March 10, 1987, - are before the Atomic Safety and Licensing Appeal Board pursuant to US Ecology's appeal, filed March 16,1987. ;
On May 14, 1987, the NRC Staff filed a motion to hold further briefing on US Ecology's appeal in abeyance in light of the Commission's action on May 13, 1987, and the proposed June 1,1987 effective date of the Agreement. U In an Order of May 18, 1987, the Appeal Board granted the Staff's request and indicated that a Staff motion to terminate 1
should be filed within ten days of the execution of the Agreement. On May 14,1987, the Chairman executed the Agreement on behalf of the NRC and on May 18, 1987, the Governor executed it on behalf of the State.
On May 20,1987, US Ecology filed a " Motion to Vacate the Order to Show Cause of March 20, 1979 and Resulting Adjudicatory Orders."
et This constitutes the Staff's response to the Appeal Board's Order of May 18, 1987 and to US Fcology's Motion of May 20, 1987. For the reasons discussed, the NRC Staff urges the Appeal Board to terminate the proceeding and to vacate the Licensing Board's decisions of February 20, 1987 and March 10, 1987. However, the Staff opposes US Ecology's request to vacate decisions other than those that are the subject of the instant appeal. As discussed below , the Staff will I
2/
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Memorandum and Order (Ruling on Motions for Summary Disposition),
February 20, 1987; Memorandum and Order (Clarifying Finality of Decision), March 10, 1987.
-3/ NRC Staff Motion to liold in Abeyance Further Briefing of the Appeal in This Proceeding (May 14, 1987).
s
. withdraw its show cause order of March 20, 1979 and, therefore, vacation of that order is unnecessary.
I II. BACKGROUND j The facts, insofar as they are relevant to this motion and to the Staff's response to US Ecology's motion, are as follows:
This proceeding grew out of an earlier proceeding conducted on the application of US Ecology, then known as Nuclear Engineering Company (NECO), to expand its low-level radioactive waste disposal site near Sheffield, Illinois. O On March 8,1979, NECO informed the NRC that it l
was withdrawing its application for license renewal and site expansion and that it had terminated its license. 5,/
On March 20, 1979, the NRC staff issued an immediately effective order to show cause. The order required NECO to resume its responsibilities 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 license, to the Licensing Board presiding over the proceeding on the ifcense renewal and site expansion. Nuclear Engineering Company (Sheffield. Illinois Low-Level Radioactive Waste Disposal Site), CLI-79-6, 9 NRC 673 (1979).
4/ See 42 Fed. Reg. 61522 (December 5,1977).
-5/ " Notice to Atomic Safety and Licensing Board of Withdrawal of Application and Termination of License for Activities at Sheffield" (March 8,1979).
. Following a number of continuances granted by the Licensing Board at the behest of the parties to accommodate their attempt to reach a settlement agreement, the Board conducted a prehearing conference on August 10, 1986 during which it set a schedule for filing and responding to summary disposition motions on the two legal issues identified by the Board: (1) whether US Ecology possessed the material buried at j Sheffield; and (2) whether it had the right to terminate its license l unilaterally without affirmative action by the NRC. 6_/ US Ecology filed its motion on October 14, 1986, pursuant to the amended schedule ordered by the Board.1I The State of Illinois, an intervenor in the proceeding, ,
1 and the NRC Staff filed responses in opposition to US Ecology's motion on l November 10, 1986. b l
[ On February 20, 1987, the Licensing Board denied US Ecology's I
n'otion for summary disposition and on March 10, 1987, it held, in response to a motion made by US Ecology in a telephone conference call of March 9, 1987, that its memorandum and order deciding the summary l
- disposition issue was final for purposes of appeal.
On Murch 16, 1987, US Ecology filed its notice of appeal and its brief.
6/ " Memorandum and Order" at 6-7 (August 22, 1986).
7/ " Order" (September 24, 1986).
8/
"NRC Staff's Response in Opposition to US Ecology's Motion for Summary Disposition," November 10,1986; " Motion by the People of the State of Illinois for Summary Disposition," November 10, 1986.
III. DISCUSSION A. Jurisdiction Section 5 274b of the Atomic Energy Act of 1954, as amended, U authorizes the Commission to enter into an agreement with the Governor of any State providing for discontinuance of the regulatory authority of the Commission with respect to any one or more of the following categories of materials within the State, namely 5 11e(1) byproduct material, I 11e(2) byproduct material (uranium and thorium mills and mill tailings), source material, and special nuclear material in quantities not sufficient to form a critical mass. Under the provisions of the Low-Level Radioactive Waste Policy Act, as amended, 42 U.S.C. I 2021b et s_eq. ,
and the Commission's Policy Statement on " Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption thereof by States through Agreement," as amended (46 Fed. Reg. 7540, January 23, 1981, 46 Fed. Reg. 36969, July 16, 1981; and Fed. Reg.
33376, July 21, 1983), States may also enter into an agreement to regulate the disposal of low-level radioactive waste. The Commission has executed an agreement with the Governor of Illinois to relinquish, among other categories, regulatory authority over low-level radioactive waste disposal in Illinois, b When the agreement takes effect on June 1,1987, it will i terminate the Commission's regulatory authority over the Sheffield site 4
and the Commission's jurisdiction to enforce the show cause order of 9/ 42 U.S.C. I 2021b (1982).
i ~
10/ See Chilk Memorandum, supra, n.1; 52 Fed. Reg. 2,309 et sec. ~
TIT 87). ,
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l March 20, 1979. -- 1II In these circumstances, the Appeal Board should terminate thi,s proceeding.
B. Vacation of the Licensing Board's Decisions With the Commission's discontinuance of regulatory authority, the Appeal Board will lose the jurisdiction to review the two decisions that US Ecology has appealed. Thus, the Licensing Board's decisions will not have appellate review. Accordingly, consistent with Commission policy calling for vacation of unreviewed Licensing Board decisions that have become moot while on appeal, the vacation of the Licensing Board's memoranda and orders of February 20 and March 10, 1987 is appropriate.
Two lines of cases support the Staff's motion to vacate the decisions that are before the Appeal Board. The Appeal Board has consistently l
vacated Licensing Board decisions mooted before the Appeal Board '
rendered a decision on appeal. See, e
- j. , Rochester Gas and Electric l Corp. (Sterling Power Project Nuclear Unit No. 1), ALAB-596, 11 I N.R.C. 867 (1980); United States Department of Energy, Project Management Corp., Tennessee Valley Authority (Clinch River Breeder Reactor Plant) ALAB-755,18 N.R.C.1337 (1983). In Sterling, Rochester
- Gas and Electric Corporation (the Applicant) asked the Appeal Board to I
11/ The agreement with Illinois contemplates the assumption by Illinois not only of regulatory authority but also of NRC licenses themselves.
US Ecology's license is currently in force because US Ecology's predecessor. NECO, filed a timely application to renew.
Subsequently, NECO sought to withdraw the renewal application.
However, the Licensing Board denied NECO's motion to withdraw its application to renew its license. Memorandum and Order (Ruling on Motiona to Withdraw Application and Dismiss Proceeding), May 3, 1979. Therefore, US Ecology's license for Sheffield continues in effect and may be assumed by Illinois as contemplated by the agreement.
. " terminate all proceedings in this docket." E The Appeal Board granted the applicant's request, and, in order to prevent the Applicant from retaining a construction permit based on an unreviewed initial decision, also vacated the initial decision, which authorized the issuance of a construction permit for the Sterling facility.1_3/
In vacating the initial decision, the Appeal Board followed a line.of i
cases in the Federal courts concerning vacation of unreviewed lower
! courts decisions. The Munsingwear El case established the rule that an appeals court should vacate a trial court decision when a controversy has become moot while on appeal. According to the Supreme Court:
)
l That procedure [ vacation) clears the path for future reliti-gation of the issues between the parties and eliminates a judgment, review of which was prevented through happen-stance. When that procedure is followed, the rights of all parties are preserved; none is prejudiced by a decision which in the statutory scheme was only preliminary. El M/ Sterling,11 N.R.C. at 868.
13/ Id.
14/ United States v. Munsingwear. Inc., 340 U.S. 36 (1950).
15/ Id. at 40. In Munsingwear, the United States failed to request vacation of a District Court decision that had become moot while on appeal. In later litigation arising out of the same facts, Munsingwcar asked the courts to hold the earlier decision res judicata. The Supreme Court held the earlier decision res judicata but stated that the Department of Justice should have moved to vacate the earlier decision when it became moot and that the Court of Appeals should have granted such a motion to vacate in order to avoid the problem that occurred.
The instant case presents a similar situation: US Ecology has appealed two Licensing Board decisions, the first denying summary disposition on two legal issues raised by the show cause order of March 20,1979, and the second declaring the order denying summary disposition to be final for purposes of appeal. US Ecology argues in its motion that the decisions if allowed to stand might have some precedential, res judicata, or collateral estoppel effect in proceedings that might be brought against it in Illinois state courts. US Ecology Motion at 7. US Ecology argues that it would thus he prejudiced by unreviewed decisions. Id. , at 8.
The Staff does not believe that Illinois will be able to apply the Licensing Board's decisions as res judicata or collateral estoppel against US Ecology in the State courts. In order to une an NRC adjudication as res judicata or collateral estoppel,1111ncis would have to prove, at least, ,,
that the NRC had rendered a final judgment on the merits. I6,/ -
Because the Appeal Board (and the Commission, should the losing party seek Comraission review) will not complete a review on the merits of the issues raised by US Ecology's appeal before the NRC loses jurisdiction, El Illinois will not obtain a final judgment on the merits. US Ecology, therefore, will not be prejudiced in the Illinois state courts by 16/ See e.g., Ballweg v. City of Springfield, 114 Ill 2d 107, 499 N.E.2c . 1373 (111. 1986); See generally, Parklane Hosiery Co.
- v. Shore. 439 U.S. 322 (197DT (describing the policy underlying offensive collateral estoppel); Blonder-Tongue Laboratories Inc. v.
University of Illinois Foundation, 402 U.S. 313 (1971) (analyzing collateral estoppel within the historic context of patent law).
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17/ The Commission would review the Appeal Board's decision to terminate this proceeding and either vacate or not vacate the Initial Decisions to determine if the Appeal Board erred in its decision.
unreviewed Licensing Board decisions. The Appeal Board should vacate l the Licensing Board's decisions in this case not to avoid prejudice to US Ecology in the Illinois courts, but to avoid prejudice to the Staff and other parties who will participate in future proceedings before NRC tribunals.
If the decisions are left standing, litigants may rely on them in future NRC proceedings. While there are cases that suggest that unreviewed, uncontested Licensing Board decisions do not have precedential value , EI other cases suggest future litigants may nevertheless rely on this Licensing Board's decisions. In the Prairfo Island canc, the Appeal Board vacated a Licensing Board decision because of its " potential precedential significance [.]" E The Appeal Board in Shearon Harris EI recognized that "[t]here is a reasonable probability that, if permitted to stand , the remedy chosen by this Licensing Board will be invoked by future construction permit boards entertaining similar [ questions) . In order to avoid the potential for reliance in future proceedings upon unreviewed Licensing Board
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18/ See Arizona Public Service Co. (Palo Verde Nuclear Generating lifiition Units 1, 2, and 3), ALAB-713,17 N.R.C. 83 (1983); Duke Power Co. (Cherokee Nuclear Station Units 1, 2, and 3), ALAB-482, 7 N.R.C. 979 (1979).
19/ In that proceeding, the Licensing Board imposed a condition on Northern States Power, (NSP), but NSP had already complied with the condition before the Appeal Board made its decision. Because NSP's compliance with the condition had rendered any appeal moot, the Appeal Board vacated the initial decision to preclude the unreviewed Licensing Board decision from having any precedential effect.
20/ Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4) ALAB-577,11 N.R.C.18 (1980).
- decisions, the Appeal Board should vacate the Licensing Board's decisions in this case. ,
Therefore, while the Staff disagrees with US Ecology's reasoning in support of vacation of unreviewed decisions, the Staff agrees that they should be vacated.
However, US Ecology has gone too far in asking that all adjudicatory orders and decisions in this proceeding that are related to the show cause order be vacated. US Ecology Motion at 3, 6. Although US Ecology asserts that unreviewed rulings of the Licensing Board could unfairly prejudice the disposition of the same matters in any proceedings regarding Sheffield that may be brought by the State (Id. at 3 n.5) as shown above such unreviewed rulings would not be entitled to res judicata or collateral estoppel effect. The Staff, therefore, opposes, as unnecessary, the vacation of such rulings or decisions.
The Commission's decision upholding the immediate effectiveness of the show cause order, CL1-79-6, 9 NRC 673 (1979), supra, is final agency action that has been effective for some eight years. Final agency actions are not reached by Munsingwear, which applies to unreviewed decisions of trial courts (or, in this case, lleensing boards).
Additionally, it would be inappropriate to consider vacation of CL1-79-6 because the decision addresses generic issues having significance beyond this proceeding. 2,1/
Since the NRC will relinquish regulatory authority over US Ecology with respect to the Shefficld license on June 1, 1987, the Staff will withdraw the March 20, 1979 show cause order. As noted above, n.12, 21/ Public Service Company of Oklahoma, (Black Fox Station, Units 1 and 2), ALAD-723,17 N.R.C. 555 (1983).
. the Sheffield license continues in effect and will be assumed by the State.
The license requires US Ecology to maintain the site in such a manner as
- to continue to protect the public health and safety. In view of the Staff's withdrawal of the show cause order, vacation is unnecessary.
III. CONCLUSION
- Because the NRC will lose jurisdiction over US Ecology with respect 1
to the Sheffield license on June 1, 1987, the Appeal Board should terminate all proceedings in this docket. Consistent with the l Commission's policy regarding vacation of unreviewed Licensing Board decisions in moot cases, the Appeal Board should also vacate the Licensing Board decisions on appeal in this case and, to that extent, grant US Ecology's Motion. The Appeal Board should deny US Ecology's motion in all other respects. !
Respectfull submitted,
) % . W '
Ann P. Hodgdon Counsel for NRC Staff M , d(kihtuuM
- Robert M. Weisman i Counsel for'NRC Staff Dated at Bethesda, Maryland this 28th day of May,1987 4
)
e
. /g**en,*), UNITE 0 5 MTES j' ,,, >' NUCLE AR SEGut.ATORY COMMISSION i'
- - 'I naswmstoss oc rows-s .!
S.,,,.[ ~
May 13. 1987 OFictortwa
$(CAETARY MEMORANDUM FOR: Harold R.'Denton3 Director '
Of fice of. Governmental and Public Affairs Victor Stallo,; Jr. , Executive Director r for Operations FROMs samueliJ. Chilk, Secreta ,
SUBJECTS- SECY+87-l'04 - PROPOSED A REEMENT BETWEEN THE STATE Or ILLINOIS AN U.S.. NUCLEAR REGULATORY COMMISSION PURSUANT TO l
SECTION 274 OF THE ATOMIC. ENERGY. ACT OF 1954, at AMENDED ' i The Commission
- with chairman Zech and Commissioners Anselstine, Bernthal and Carr agreeing, has approved thee l staff's proposed Agreement between the State of Illinois and , t j
the NRC pursuant to Section 274b of the Atomic Energy Act, ,
as amended. i i i Commissioner.Berntha14 approves the Agreement between the' State of 1111nois andothe Commission.' In his judgment, hoyever, a11' materials and contaminated areas which ;have resulted from operations of the Westichicago Rare Earths.
Facility would more. properly be classified as " byproduct material" under $11e(2) 'of the i Atomic Energyi Act.- As suche commissioneri Bernthalibelieves e that urisdiction for thesei materials jahd contaminated arena sho ld ' remain with the .
Commission until:such time as the St,te of Illinois elects -
to seek eauthority for all jbyproducti natorial.
In Addition,' the Commission **, with Chairman Zech andi Consnissioners Bernthal and Carr agreeing has approved the staf f's proposed Order to i Allied
- Chemical, as modified by commissioner Carr, placing its conversion plant underi continued NRC regulatory authority. }
~u.s .,
- 2. ,
Agreement docuanent to
. The .staf f is requested to transtait thethe iChairatan .and the O signatures, respectively.(GPA) , ($ECY SUSPENSE: . 5/15/87)
Copies: .
Chairmato tech Convaissioner i Asselstine i Conaninsioner iBernthal -
Comunissioner icarr OGC H Streets ,
OPA-l l
I I
i
'a Comttisoioner < Roberts did not , participate .
- Cow immioner Assaistine aisapprovedathe Order.
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i l UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION BEFOR$ THE ATOMIC SAFETY AND LICENSING APPEAL BOARD in the Matter of )
l )
US ECOLOGY, INC. Docket No. 27-39
)
)
(Sheffield, Illinois Low-Level )
Radioactive Waste Disposal Site) )
NOTICE OF APPEARANCE '
Notico is hereby given that the undersigned attorney enters an appearance in the above-captioned matter. In accordance with 6 2.713(b),
i 10 C.F.R., Pstt 2, the following information is provided:
l l
Name Robert M. Weisman Address: U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C. 20555 Telephone Number: (301) 492-7267 Admissions: Supreme Court of Oklahoma l Name of Party NRC Staff Respectfully submitted, YYl,4 4 nk)vaw\
Robert M Welsman Counsel for NRC Staff Dated at Bethesda, Maryland this 28th day of May,1987 i
1D E N ,
LW:
UNITED STATES OF AMERICA 87 MAY 29 P3 :39 NUCLEAR REGULATORY COMMISSION BEFOftE TIIE ATOMIC SAFETY AND LICENSING APPIfft.:DOARDI In pm-In the Matter of )
)
US ECOLOGY, INC. ) Docket No. 27-39 SC
)
(Sheffield, Illinois Low-Level )
Radioactive Waste Disposal Site) )
CERTIFICATE OF SERVICE
! hereby certify that copies of "NRC STAFF MOTION TO TERMINATE PRO-CEEDING ON APPEAL AND TO VACATE LICENSING DOARD'S DECISIONS:
NRC GTAFF RESPONSE TO US ECOLOGY'S MOTION TO VACATE" and
" NOTICE OF APPEARANCE" of Robert M. Weisman in the above-captioned proceeding have been served on the following by deposit in the United States mall, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mall system, this 28th dcy of May,1067:
D. Paul Cotter, Esq., Chairman James R. May, Esq.
Administrative Judge State's Attorney Atomic Safety and Licensing Board Dureau County Court flouse U.S. Nuclear Regulatory Commission Princeton, IL 61356 Washington, D.C. 20555*
Jerry R. Kline llenry L. Ilenderson, Esq.
Administrative Judge Asst. Attorney General Atomic Safety and Licensing Daard Environmental Control Division U.S. Nuclear Regulatory Commission 13th Floor Washington, D.C. 20555* 100 West Randolph Street Chicago, IL 60601 Dr. Emmoth A. Leubke John M. Cannon, Esq.
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 60600 Docketing and Service Section Robert Russell, Esq.
Office of the Secretary Johnson, Martin & Russell U.S. Nuclear Regulatory Commission 10 Park Avenue West Washington, D.C. 20555* Princeton, IL 61356 D. J. McRae. Esq. Susan D. Ilarmon, Esq.
217 West Second Street Burke, Dosselman and Weaver Kewauneo, IL 61443 Xerox Centro - 55 West Monroe Chicago, IL 60603
- [ Mark J. Wetterhahn, Esq. Mr. Charles F. Eason, Esq.
j Robert Rader, Esq. American Ecology, Inc.
- Conner and Wetterhahn Director for Governmental Affairs 1747 Pennsylvanta 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 l U.S. Nuclear Regulatory Commission i
U.S. Ecology, Inc.
l P. O. Box 7246 Washington, D.C. 20555*
Louisville, KY 40207 Atomic Safety and Licensing Terry Lash Appal Board Panel Director, Dept. of Nuclear Safety U.S. Nuclear Regulatory Commission 1035 Outer Park Drive Washington, D.C. 20555* Springfield, IL 62704 j Chief Legal Counsel Marc Bernabel Esq.
t 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 l m . D 8[ W
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Ann' P. Iodgdon Counsel for NRC Staff g
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