ML20126M881
| ML20126M881 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 06/19/1987 |
| From: | Jenny Murray NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Thompson H NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| Shared Package | |
| ML20126L908 | List: |
| References | |
| FOIA-92-71 NUDOCS 9301110132 | |
| Download: ML20126M881 (1) | |
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' [s %' UNITED STATES f 3y ' 'g NUCLEAR REGULATORY COMMISSION
- l W ASHINGToN, o. C. 20555
%y / MN19may MEMORANDUM TO: Hugh L. Thompson, Director Office of Nuclear Material Safety and Safeguards Harold S. Denton, Director Office of Governmental and Public Affairs FROM: James P. Murray Deputy General Counsel
SUBJECT:
APPEAL BOARD DECISION TERMINATING THE SHEFFIELD ENFORCEMENT PROCEEDING Cn June 16, 1987, the Appeal Board in US Ecology, Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site) b = oed ALAB-866 (attached). In its Memorandum and Order, the Appeal Board vacated two Licensing Board decisions before the Appeal Board on US Ecology's appeal and terminated the proceeding on the show cause order that the Director of NMSS had-issued on March 20,1979. The Appeal Board's action was taken after full consideration of the views of the parties . to the proceeding, US Ecology, the State of Illinois and the NRC Staff, regarding the appropriate course of action for the Appeal Board to take in the circumstances of the Commission and the State of Illinois having executed an agreement by which , among other thing s ,
regulatory authority over the Sheffield site was transferred from the Commission to the State effective June 1,1987.
The Appeal Board s tated that Jt understood from the Staff's motion -- in which the Staff sought the vacation and termination that was granted in ALAB-866 -- that the Staff would shortly withdraw its March 20,1979 show cause order directed to US Ecology. Ann Hodgdon, OGC counsel in the matter, will be in touch with your Staff regarding the withdrawal of the order.
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D
,- ' ames P. Murray
Attachment:
As stated cc: Victor Stello 'w/ attachment A. Bert Davis, Administrator, Region lil, w/ attachment t
, MESTER92-71 PDR i t lbsA
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- y w 87J854 UNITED STATES OT: AMERICA
. NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Aaministrative Judges: ,,
Alan S. Rosenthal, Chairman June 16, 1987 Thomas S. Moore ( ALAB-866) howard A. Wilber
)
In the Matter of )
)
US ECOLOGY, INC. ) Docket No. 27-39 SC .-
)
(Sheffield, Illinois Low-Level )
Radioactive Waste Disposal Site))
)
Mark J. Wetterhahn, Robert M. Rader, and Nils N.
Nichols, Washington, D.C., for-US Ecology, Inc.
9 Neil F. Hartigan, Henry L. Henderson, H.-Alfred-Ryan, Gabriel M. Rodriguez, and Diane Rosenfeld Lopata, Chicago, Illinois, for the State of Illinois.
Ann P. Bodqdon and Robert M. Weisman . for the Nuclear Regulatory Commission-staff.
MEMORANDUM AND ORDER This show-cause, proceeding __ involving-the=Sheffield,.
Illinois Low-Level Radioactive Waste Disposal SiteLis-before ,
us on the appeal of US Ecology, Inc., from.two Licensing' Board memoranda and orders. Last. month, the Nuclear:
Regulatory Commission and the State of Illinois executed an ,
2 agreement -whereby, es no. party to:the proceeding disputes, e
1
-See LBP-87-5, 25-NRC (February. 20, 1987) ; March ,
10, 1987 memorandum and order-(unpublished).
- 2. .
Reg. 22,864.(1987).
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I regulatory jurisdiction over the Sheffield site was transferred from the Commission to the State effective June 1, 1987.3 On full consideration of the views of US Ecology, Illinois, and the NRC staf f respecting the appropriate course in these circumstances, we vacate the two orders subject to the appeal and terninate the proceeding. United States v. Munsingvear, Inc., 340 U.S. 36, 39-41 (1950).4 In 3
In a February 20, 1987 written submission, US Ecology had requested the Commission to exclude Shef field from the scope of its then-proposed agreement with Illinois pending the completion of the show-cause proceeding at bar. See Comments of US Ecology, Inc. to the Nuclear Regulatory Commission on the Notice of Proposed Agreement with the State or Illinois for the Assumption of Certain of the Commission's Regulatory Authority Pursuant to Section 274 of the Atomic Energy Act. In recent filings with us, US Ecology explicitly acknowledges that the Commission rejected that request. See US Ecology's Motion to Vacate the Order
- to Show Cause of March 20, 1979 and All Resulting Adjudicatory Orders (May 20, 1987) at 3 n.6; US Ecology's Answer to NRC Staf f Motion to Terminate Proceedings on Appeal and to Vacate Licensing Board's Decisions (June 2, 1987) at 2. Illinois and the NRC staff likewise have af firmatively represented to us that the agreement extends to Sheffield. See State of Illinois' Objections to Motions to Vacate Show Cause Order and Board Decisions (June 12, 1987) at 1-3; NRC Staf f Motion to Terminate Proceeding on Appeal and to Vacate Licensing Board's Decisions, etc. (May 28, 1987) (hereaf ter "NRC Staf f Motion") at 5.
4 It suffices to observe that there is no merit to Illinois's position that its agreement with the NRC strips us of jurisdiction to take any action other than to terminate the NRC show-cause proceeding. Illinois insists that, although the agreement brought that proceeding to an end, the orders rendered in it by the Licensing Board retain their vitality. This is said to be so because, according to Illinois, the agreement simply transferred the authority to' review those orders from us to its Department of Nuclear (Footnote Continued)
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3 this' connection, it is our understanding that, in light of
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the agreement, the staff has vithd: ten, or shortly will ,
withdraw, its March 20, 1979 show-cause order directed to US Ecology.5 (Footnote Continued)
Safety. But Illinois has pointed to no agreement provision or other authority (and we have found none) that might possibly serve to support that proposition. More
- particularly, the agreement does not suggest that the Commission intended to clothe a state agency with the power to affirm, to reverse, or to modify orders issued by an NRC adjudicatory tribunal in a now-closed proceeding that had been instituted by the NRC and conducted under its Rules of Practice and other regulatory provisions. In the absence of a clear statement of such a seemingly novel purpose, one is not to be inferred. Accordingly, inasmuch as the agreement manifestly has the effect of depriving US Ecology of its pre-existing ability to obtain review within the NRC of the Licensing Board's orders, operative effect must be removed from those in proceeding orders whichas anwere they incident of the termination of the rendered. As Munsingwear teaches, this-objective vacating the orders. can be accomplished by simply It does not necessarily follow that Illinois is precluded from utilizing for any purposes the fruits of the NRC proceeding or from resching the same result arrived at by the Licensing Board. Those are questions we neither need nor do consider here. Our action in vacating the challenged orders below means merely that Illinois cannot rely on them as representing the conclusions of this agency on the matters in controversy. Rather, by reason of the NRC-Illinois agreement that brought about the termination of the show-cause proceeding while the orders remained on '
appeal, the NRC must.be taken as having no current (or future) position on those matters. ,
b See NRC Staff Motion at 10.
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