ML20235V113
| ML20235V113 | |
| Person / Time | |
|---|---|
| Issue date: | 12/22/1977 |
| From: | Kerr G NRC OFFICE OF STATE PROGRAMS (OSP) |
| To: | Bishop W NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| Shared Package | |
| ML20235U845 | List:
|
| References | |
| FOIA-87-235 NUDOCS 8707230059 | |
| Download: ML20235V113 (13) | |
Text
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'o UNITED STATT 5 8 ', ,.
4' NUCLE AR REGULATO4Y COMMICSION
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MEMORANDUM FOR: William ?. Bishop, Assistant Director for Waste Management, NMSS FROM: G. Wayne Kerr, Assistant Director 6 l
for State Agreements Program, SP '
SUBJECT:
DRAFT AGREEMENT BETWEEN KENTUCKY AND NECO 9
Per our discussions earlier this week and today with Mike ,
Bell and Paul Lohaus, attached is a copy of the draft !
agreement between Kentucky and NECO. My earlier conversation with Hardin revealed the agreement had not yet been signed.
I haven' t been able to get in touch with him today to c determine the current s tatus. Note Article VIII regarding i NRC's role. If we want to try to head that off, which I [
think we should, we should probably talk to McClure soon. i I could do that or we can escalate it to someone higher, r~
l i.e., Ryan, S. Meyers, Smith or even Hendrie. Let me know your thoughts.
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G. Wayne derr, Assistant Dil sctor /
for State Agreements Progratu Office of State Programs P
Enclosure l cc: R. Ryan, SP M. Bell, FCLLB ,
M. Malsch, ELD F. Swanberg, SAFER .
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1 AGREEMENT FOR THE SUSPENSION OF OPERATION OF TIIE MAXEY FLATS RADIOACTIVE WASTE DISPOSAL SITE
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THIS AGREEMENT, made and entered into this day of December, 1977, by and between the Commonwealth of Kentucky, )
1 J Department for Human Resources: Executive Department for Finance and l
Administration (hereinafter called " State") and Nuclear Engineering j Company, Inc. (Hereinaf ter called "NECO"), a corporation duly organized and existing under the laws of the State of California authorized to do business in the Commonwealth of KentucF f , having its registered office in Louisville, Kentucky and duly authorized to engage in the business of
.q receiving, possessing, processing, transporting, repackaging, using, storing and disposing of radioactive waste and materials.
WITNESSETH:
WHEREAS, NECO acquired certain real estate in the Maxey ;
Flats Area of Fleming County, Kentucky which was found to be geologically l
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l and hydrologically suitable for the establishment, operation and maintenance of a lo v-level radioactive waste disposal site; and l
WHERF.AS, it being required by law that the title to r.eal estate 1
l used for any such purpose be vested in a Sovereign government, NECO thereaf ter conveyed a part of said real estate (hereinafter referred to as the
" Site"), to State, whereupon, State and NECO entered into a Lease Agreement
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dated ah of January 21, 1963, pursuant to which the St.tc was subsequently leased to NECO for the purpose of operating a facility for the burial of
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- low-level radioactive waste; snd
'- WHEREAS, as required by law, NECO made application for and f was granted a license by State for the operatio : of the Site, which license, q
together with amendments and modifications subsequently, trom time to tirae, made thereto, remains in effectr WHEREAS, State acknowledges that NECO has during its operation of the Site, substantially conformed to and complied with all applicable i
laws, rules, regulations, agreements and licensing requirements and that l
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the Site presently constitutes no hazard to the publ*.c hec.lth and welfare and'/or to the environment; and, WHEREAS, it has been determined by the State and NT:CO that it I
1 would be in the public interest to expand existing scientific data to further f confirm the integrity of the geological and hydrological characterirties of
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the Site for the disposal and long +.erm containment of the. radioactive waste materials buried, or as may hereafter be buried there; and WHEREAS, it has been determined by State that such further studies ,
l and investigations of the Site as are needed for the aforetaid purposes can l
l be best conducted if radioactive waste disposal operations at the Site are I
suspended; and, I WHEREAS, State acknowledges that NECO stands ready to perform all of its obligations under the Lease, License and any and all other agreements with the State; and, J l
WIIEREAS, State is aware that the aforesaid suspensica will cause j
NECO significant financial hardship and that the suspension will effectively precidde NECO from any performance, NOW, THEllEFORE, for and in consideration of the premises and
.in order to centinue to preserve and promote the public health, safety and welfare and of the mutual covenants and stipulations hereinafter set forth, State and NECO do hereby agree, cach with tF : other, as follows:
- 1. Suspension of Lease Acreement: For the consideration afore-mentioned, and subject to the terms and conditions hereinafter stated, it .
is hereby agreed by and between the parties hereto that the Lease Agreement ,
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dated as of January 21, 1963, between State and NECO for the lease of the ;
1 Maxey Flats Rad!oactive Waste Disposal Site (the Site) in Fleming County, ]
1 Kentucky, and all rights, privileges and obligations of either party thereto, 1 i
except as provided herein, shall be and are hereby suspended for up to a period of two (2) calendar years commencing on the fifteenth day of December 1977, and extending through the fifteenth day of December 1979 It is acknowledged and agreed by NECO that suspension of said Lease Agreement and its rights and privileges thereunder shall not relieve it of any liability for the payment to the State of any sums due and unpaid as of the date j hereof, to the fund est&lished under Article VI of said Lease Agreement for the perpetual r.are and maintenance of the Site, for the period beginning July 19,1976 tiarough December 15, 1977, and State shall have and retain all rights provided under said Lease Agreement to verify the correctness of the amount cf any sum tendered by NECO in payment of any such sum as may be duc. State acknowledges and agrees that suspension of NECO's operation of the Site under this Agreement chall not be deemed to be the :
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" ceasing to do business for any other reason," as contemplated by I Aiticle VIII of the Lease Agreement dated ar of January 21,1963, nor as l
a "canec11ation" within the meaning of Article XIII of said Lease Agreement,
.nor shall this suspension be construed as a termination of any existing property rights. State acknowledges and agrees that NECO, its agents, leasces and/or authorized representatives shall be permitted to continue during the period of suspenr. ion any existing agricultural activitics as contemplated in Article XI of the aforesaid Lease Agreement. State and NECO further agree that in the event of NECO's re-entry and the reinstatement of the Lease and License that said Lease shall be amended to extend its terms for an additional twa (2) years' period.
a' II. Amendment of . Lie.ent e: State and NECO acknowledge and agree that during the period of suspension the State shall have sole responsibility for the operation and maintenance of the site and that NECO shall function pursuant to Article X hereof as an Agent of the State.. Therefore the parties hereto agree that during the period of suspene, ion of the Lease Agreement l I
dated as of January 21, 1963, as provided in Paragraph'I. , above, License No.16-NSF-1, as amended, issued to NECO by State for the ope ration.of the Site, shall be further amended to acknowledge that NECO's sole i
J responsibility under the amended license shall be to comply'and perform in accordance with the Maxey Flats Nuclear Disposal Plan as incorporated by l
reference hercin. The parties hereby agree that any further amendments, orders er directives affecting the aforesaid License No.16-NSF-1, amended as provided herein, shall be reflected by appropriate amendments to the i Plan and addenda to the Cost Reimbursement Contract.
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I lIII. Conduct of Studien and Invectications of the Site: During the period of suspension of the Lease Agreement, State shall institute and conduct such geological, hydrological and other environmental st"dics and
. investigations of the Site as may appear to be indicated and required in the 1.
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public interest: (1) to determine whether the Site is unsuitable for the long term containment of low-level radioactis.: waste so as to establish a hazard to the public health and welfare and the environment: (2) to explore the need, if any, for the improvement of monitoring, surveillance and maintenance techniques employed at the Site; and, (3) to develop additional plans and programs, if dictated, for the implementation of perpetual care and maintenance of the Site. In the conduct of such studies and investigations, the State acknowledges and agrees that during the period of suspension, the Site shall be maintained solely by the State in substantially the same physical L i
character so as to allow subsequent re-entry, occupancy and/or use by NECO according to the interests and purposes expressed in the Lease Agreement.
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IV. NECO Participation in Studies: NECO shall be kept informed of the progress, findings and conclusions of all studies and investigations of the Site made by the State and its contractors and shall have the rightto comment thereon prior to dissemination to interested State and Federal agencies and/or the general public. Further NECO shall be permitted upon concurrence by the State to participate in any ano all of the aforesaid studies and investigations of the Site. Nothing herein shall preclude NECO from l accepting funds from Agencies of the U. S. Government, . State Agencies or private organizations for making studies and investigations or improvements
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of the. Site provided that any such studies, investigations or improvements do not substantir.11y conflict or interfere with studies and investigations undertaken by the State. NECO shall at all times keep the State informed
, of the progress, findings and conclusions of any resulting studies and investigations or improvements it may undertake and the State shall havc the right to comment thereon.
V. Maintenance of Site Durine Period of Susoension: Recognizing that it is the ownca in fee simple of the Site, the State agrees that during the period that the Lease Agreement is suspended hereunder, the Site and all permanent improvements shall be maintained by the State in substantially the same condition as received on December 15, 1977, reasonable wear and tear excepted. . State shall provide fc,r fire, windstorm and extended coverage insurance through and in the amounts authorized under the State Fire and Tornado Insurance Fund of all building.a situate.d on the Site and in the event of loss, the proceeds thereof shall be used to repair or replace any buildings or other improvement covered by such insurance as may be economically reasonable and feasible. NECO shall be responsible for procuring insurance against loss or damage to its personal property at the Site, and for the rnaintenance of such public liability insuran:e at the Site in such amounts as the parties mutually agree to be necessar y for NECO's protection, any contrary provisions of the Lease Agreement notwith-standing, and for procuring any and all Nuclear Liability Insurance; with the cost of any and all of the aforestated insurance to be considered a proper item of expense te be included in other direct cost under the Cost Reimbursable Contract.
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! VI.. Release of NECO f rom Liability Durine Susnension of Leanc 'l A c re em ent : State agrecs that during the period of suspension, NECO shall
- be, to the extent of Stctc's authority to do so, absolved and released from any liability whatsoever arising or resulting from the conduct of any study or investigation or other activity occurring on the Site and not caused by or attributable directly to any act or neglect, error or omission, by NECO, i
its employees, agents or contractors as would otherwise, according to 1
the common law, constitute against it a cause of action for or result in it being held liabic to any person for ' damages.
VII. Water Manacement Procram - Release: State acknowledges 1
and agrees that NECO and its respective parent, subsidiary, and affiliated corporations past and present and each of them, as wel? as its and their respective directors, officers, agents, servants and emp:oyees, past and present and each of them shall be released from any and all obligations and liabilities now existing between the parties, which arise from the Plan of l Corrective Action and Schedule for Compliance and Escrow Agreement, as I amended, both dated November 13, 1972 and a subsequent Agreement dated March 19,1975, and any reference made thereto in the Li' cense (all hereinafter referred to as NECO:s Water Management Program), now and henceforth, and, it is further agreed:
(1.) That State shall have no further claim or right to any of the monies reserved, or any bond, relating to NECO's Water Management Program from the date of this Agreement; .
(2) That NECO shall have no further obligations to the State, nor to any surety, for payment of any monics or, for the reservation
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of any monics, for the purposes stated in NECO's Water i
Management Program; '
(3) That the parties agree to the release of all obligations and liabilities as set forth above incurred as of the dates of i their agreements on NECO's Water Management Program.
i That,in the event of re-er.try by NECO, as set forth hereinafter, the partice shall enter into negotiations for the establishment of a new agreement for the purposes of ensuring the conduct of NECO's Water Management Program.
VIII. Lone-term Containrrient of Low-level Radioactive Waste: (1)
The parties hereto acknowledge and agree that based upon the data now ava'ilable it is desirabic to obtain further information on the geology and
[q hydrology of the Site, Accordingly, the parties further covenant and agree that since their joint concern for the public health, safety and welfare is j
l their paramount concern and consideration, that if the U51ted States Nuclear Regulatory Commission determines from the data collected during the course i 1
of the studies and investigations of the Site to be conducted during the suspension period that the Site lacks long-term containment characteristics for burial of low-level radioactive waste which poses a present or future clear and convincing, non-correctable hazard to the public health and safety, then the Site after negotiations by and between the parties hereto shall be permanently closed and the State shall, in accordance with its statutory duties and contractual obligations, forthwith assume and exercise responsibility for the perpetual care and maintenan-of the Site and NECO shall have no 8-
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,r further responsibility or liability therefor. In the event the parties enter into a negotiated closure agreement, the State hereby agrees to j J
I the Site as NECO may hold purchase such additionalland which may adjoin
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f title to at the time of closure. The purchase price of the aforestated land k I
with improvements thereon, shall be the average of the values e stablished by an appraiser furnished by each party for topographically similar land, Furthe r, with improvements, as situated in Fleming and Rowan Counites. l I
j NECO shall receive full compensation for its permanent Icaschold improveme nts.
(2) If, however, at the expiration cf the suspension period as l
hereinbefore fixed, it has not been determined to the satisfaction of the Un.ited States Nuclear Regulatory Commission that the Site lacks long-term
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l containment characteristics for bur'ial of low-level radioactive waste which J poses a present or future clear and convincing non-correctable hazard to the public' health and safety, then NECO shall be entitled to re-enter upon, and take possession of the Site and resume operation of the Site in accordance with the terms of this Agreement, the Lease Agreement dated January 21, 1963, and appropriate licensing conditions as established in the public interest and for the protection of the public health and safety and the environment; it being understood that no public hearings are required regarding reinstatement.
IX. A c re e ments : State shall not allow, impair or contravene, through any agreement of whatever nature with any entity, the derogation of NECO's existing or future leasehold interests without first obtaining NECO's prior written agreement regarding same.
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l X. Cost Reimbursement Contract: During the period of suspension l of the Lease Agreement, State shall enter into a cost reimbursement contract
' with NECO for the conduc't of monitoring and surveillance activities, the on: going water management program and any and a!1 other such programs as provided in and required by the terms of the Cost Reimbursement Contract and the Maxey Flats Nuclear Disposal Facility Operations Suspension Plan attached hereto as Exhibit "A", and incorporated herein by reference, and such other programs as the parties determine to be necessary for the protection of the public health and safety. Such cost reimbursement contract shall l provide for reimbursement to NECO of its expenses, including but not limited to, the salaries and fringe benefits of its employees in the performance of the' services hereinabove mentioned; for electricity, telephone and other utility charges; and its other expenses for any other programs as might be mutually agreed to be undertaken by NECO for the protection of the public.
health and safety. .
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1 XI. Storage: State agrees that during the period of suspension I
NECO shall be permitted to utilize Site facilities for the commercial transfer and storage of empty containers and other related items. State further agrees that NECO shall be permitted to transfer and store on a secured. portion of
) the. Cite such trailers, containing empty casks, as NECO consi'ders necessary 1
1 l for its general business purposes not related to operations or studies at the Site during the period of suspension, provided that such trailer storage does l not substantially interfere with the course of Site operations or investigations .
to be carried out by the State and/or its agents.
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j l XII. Seve rabilit y: It is understood and agreed b'y the parties hereto l
that if any part, term, or provision cf this contract is held by the courts to 1
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. be Illegal or in conflict with any law of the State of Kentucky, the validity
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. .of the remaining portions or provisions herein shall not be affected, and j l
the rights and obligations of the parties shall be construed and enforced n s ]
if the contract did not contain the particular provision or part thereof hcid !
to be invalid.
XIII. Waive r: Any waiver by either party of the provisions of I
conditions of this Agreement shall not be construed or deemed to be a waiver I of a subsequent breach of the same provisions or conditions, unless such waiver be expressed in writing and signed by the party to be bound.
i XIV. Discute s : State and NECO hereby agree that any and all disputes concerning terms and conditions, or any liability, obligations, and/or representations appurtenant thereto shall be referred to a member of the
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American Arbitration Association who shall render a written decision within thirty (30) days from completion of presentations of arguments. All parties shall reserve their right to appeal any decision of the Arbitrator and/or any other grievance as provided by la-w.
XV. Headines: The provision headings appearing in this Agreement have been inserted for the sole purpose of convenience and ready reference.
They do not purport to, and shall not be deemed to, define, limit or extend the scope or intent of the provisions to which they portain.
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- XVI. Entire Acreement
- The terms and conditions of this Agreement embodies the entire Agreement of the parties. There are no promiscs, terms, conditions and/or obligations other than those contained herein; and these Agreements shall supersede all previous communications, representations oi-agreements, either written or verbal unless the aforesaid has been specifically l
incorporated by reference in this instrument and thus has become an integral j 1
part thereof. i In the event there are any conflicts between the provisions .
i contained in the Agreements and the documents incorporated by reference then the parties agree the other provisions contained herein shall be deemed l controlling.
IN WITNESS WHEREOF, the parties hereto, by and through their duly
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authorized officers, have subscribed their names in triplicate original copies as of the day and date first above written.
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