ML20212D169
| ML20212D169 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 02/20/1987 |
| From: | Cotter B, Kline J, Luebke E Atomic Safety and Licensing Board Panel |
| To: | NRC OFFICE OF THE GENERAL COUNSEL (OGC), U.S. ECOLOGY, INC. (FORMERLY NUCLEAR ENGINEERING |
| References | |
| CON-#187-2613 78-374-01-OT, 78-374-1-OT, SC, NUDOCS 8703040074 | |
| Download: ML20212D169 (29) | |
Text
v b
, 's'2$/3 4..
UNITED STATES OF AMERICA b5fr[c NUCLEAR REGULATORY C0tWISSION ATOMIC SAFETY AND LICENSING BOARD '87 FEB 24 P1 :57 Before Administrative Judges: y , ,
j 00C0 1 + .
B. Paul Cotter, Jr. , Chainnan suu Dr. Jerry R. Kline Dr. Emeth A. Luebke SERVED FEB 24190
)
In the Matter of: ) Docket No. 27-39 SC
)
U.S. ECOLOGY, INC. ) ASLBP No. 78-374-01 OT (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site) ) February 20, 1987
)
MEMORANDUM AND ORDER (Ruling on Motions for Sumary Disposition)
These cross-motions for sumary disposition concern two issues of law fundamental to the outcome of this proceeding to determine responsibility for buried low level radioactive waste at a Bureau County, Illinois repository ("Sheffield") . The original license relating to the Sheffield repository was issued by the Nuclear Regulatory Comission (NRC) in 1964. The principal parties to the dispute are the licensee or applicant, U.S. Ecology, Inc. I the State of 1
The original license, granted to California Nuclear, Inc., on July 15, 1964 to transport waste, was amended to authorize burial at the Sheffield facility on December 2, 1966. Ill . Ex. 2. Two years later on March 25, 1968, the license was transferred to Nuclear Engineering Co.,
Inc., which subsequently changed its name to U.S. Ecology, Inc. Ill.
Ex. 2. Because the license transfer and name change have no bearing on the issues at hand the licensee during the entire period will be referred to as "U.S. Ecology."
304 g k [ 9 c
31
Illinois, and the Nuclear Regulatory Commission Staff.2 To decide the motions before us, we must determine the relative authority and responsibilities of the three parties.
The two issues to be decided herein have been framed as follows:
- 1. Whether the Applicant " possesses" the source, byproduct, or special nuclear material at the Sheffield site.
- 2. Whether Neco can unilaterally terminate License No.
13-10042-01 for activities at Sheffield without affirmative action by the Connission.
U.S. Ecology answers the first question in the negative and the second in the affirmative. The NRC Staff and the State take the contrary view.
The facts of the case are essentially undisputed.
I. HISTORY OF THE CASE In 1964 the NRC's predecessor, the Atomic Energy Commission, issued the license in question to U.S. Ecology's predecessor to receive, process and transport radioactive waste to authorized land burial sites for disposal. Illinois Ex. 2. Radioactive waste burial at Sheffield l
l 2
l The proceeding has had other parties, but all had withdrawn or became inactive by the time the motions at issue were filed.
l l
was authorized by Amendment No. 7 to the license in December 1966.
Burial activities were subject to the Act, implementing regulations entitled " Standards for Protection Against Radiation," 10 CFR Part 20 (1964), and "all other applicable, rules, regulations, orders of the Atomic Energy Commission now or hereaf ter in effect . . . ." Illinois Ex. 2 (Emphasis added).
Some three months prior to issuance of Amendment No. 7 in 1966, U.S. Ecology's predecessor had entered into a 99 year lease with the State of Illinois for 20 acres at the Sheffield site to be used for the burial activities to be authorized by the license amendment. Under Article IV of the lease, the corporation paid the state $50.00 per year as rent. Article V of the lease incorporated by reference "all requirements of the Atomic Energy Commission" and applicable Illinois laws and rules "as the same are promulgated and amended from time to time." Illinois Ex. 3, Lease (Emphasis added).
Article VII of the lease contained a clause which provided as follows:
Perpetual Maintenance Fund The Corporation understands that the storage and burial of radioactive waste requires [Eig] perpetual surveillance and maintenance, and so long as it occupies the premises, the Corporation will undertake all surveillance and maintenance as described in Exhibit "B" and as required by all applicable laws, regulations, or licensing for the
protection of the public health and safety. The Corporation further understands that if for any reason at any time the Corporation should default or fail to comply with the terms of its license, or for any reason withdraw from the premises, the State would be required to assume surveillance and maintenance obligations and pay the surveillance and maintenance costs.
The Corporation therefore covenants and agrees to pay to the State annually the sum of five cents for each cubic foot of radioactive waste for which burial or storage charges have been made during the preceeding (sic) year. In order for the State to determine the proper payments of the Corporation, the State shall have access to and a right to examine any directly pertinent books, documents, papers, accounts and records of the Corporation involving operation on the leased premises. Said right shall continue for three years after the termination of this Lease.
In 1968, some two years later, the license was transferred to U.S.
Ecology's predecessor in name which then filed an application to renew the license and expand the site which had begun to fill up. U.S.
Ecology continued its operations at Sheffield under NRC Staff supervision. In December, 1976, the State and U.S. Ecology's l
predecessor entered into an agreement that amended the existing lease agreement to increase the cubic foot perpetual maintenance fee.
l A Licensing Board was established in December 1977 to consider U.S.
l Ecology's application to renew the license and expand the site. 42 Fed.
Reg. 61522 (1977). Three months later, U.S. Ecology notified the Board, the State, and the NRC Director of Nuclear Materials and Safeguards that it was withdrawing its application to expand the site and terminating l
its license. The Director denied the licensee's authority to so act I
T unilaterally and ordered it to continue carrying out its obligations under the license to protect the public health and safety. On appeal the Commission sustained the Director's action and issued a Notice of Hearing directing that a Licensing Board resolve the conflicting claims of authority. U.S. Ecology, Inc., 9 NRC 673 (CLI-79-6, 1979); U.S.
Ecology Brief, p. 2.
Following a June 1980 prehearing conference, the Licensing Board specified three issues to be heard, the first two of which are the subject of these motions. U.S. Ecology, Inc., (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site, "Prehearing Conference Order and Order Setting Time for Discovery" (unpublished, September 9,1980).
Thereafter, the proceeding was effectively suspended at the request of the parties while they sought to complete studies necessary to fashioning an appropriate site specific remedy for the buried waste and to reach a negotiated resolution of the dispute. Although all activities at the site (other than maintenance) ceased in 1978, neither negotiated settlement effort had borne fruit by August 1986. At that time the Board ordered the parties, while continuing settlement negotiations, to address the two issues first described above by motions for summary disposition. All relevant filings were received by November 28, 1986.
I l
l l
l l
II. APPLICABLE LAW As enacted in 1954, the Atomic Energy Act did not expressly define
" nuclear waste" or address the issue of its ultimate disposition.
Rather, it classified nuclear materials into three general categories:
byproduct, source, and special nuclear. 42 U.S.C. Q 2014 (1984).
However, since all waste products fell in varying proportions into one or more of these categories, regulation of the possession and transfer of nuclear waste came within the purview of the Atomic Energy Commission.
Through the 1950's, waste disposal was accomplished primarily through " burial" at sea, or return of materials to AEC facilities--
principally the Oak Ridge National Laboratory. By the end of the decade, "large solid waste volumes and repeated requests for land burial services [had] become an increasing administrative and operational burden to Oak Ridge." Statement of H. L. Price, Hearings on Industrial Radioactive Waste Disposal, 86th Congress, 1st Session (1959) at p. 2514 U.S. Ecology Ex. 3; Illinois Ex. 1. In addition, the costs of sea disposal presented "a serious economic problem" for licensees on the east coast because of the long distances waste had to be transported in order to reach suitable ocean depths. Ibid. The need for accessible, regional land disposal sites was recognized. See U.S. Ecology, Ex. 4.
I M - ^ ~ - -
-*~y me a-----e
r Then in 1959, a proposal was made to authorize comnercial land burial. U.S. Ecology Ex. 7. One of the issues to be resolved was ownership of the sites. U.S. Ecology Ex. 7 at 12. Ultimately, land ownership for such sites was limited to state and Federal Governments.
10 C.F.R. 20.302(b) (1961). The first land burial license was issued to U.S. Ecology in 1961 for a site in Beatty, Nevada. U.S. Ecology Ex. 12.
In the republication of its regulations effective January 1,1961, the Commission's principal requirements for waste disposal appeared in 10 CFR SQ 20.301 t et seq. The disposal of limited quantities of waste by release into sewerage systems (Q 20.303) and by licensee burial in soil (520.304) was authorized generally. Disposal of greater quantities of material or disposal by methods not specifically authorized required an application for a license under 9 20.302. Applications were required to describe the material to be disposed of and the manner and conditions of disposal; to analyze and evaluate the site characteristics; and to define the procedures to be observed to minimize the risk of unexpected or hazardous exposures.
l In general, licensees were permitted by Section 20.301 of the regulations to dispose of licensed material only (a) by transfer to an authorized recipient; (b) by a method authorized generally; or (c) by a method authorized pursuant to 5 20.302. There is nothing in the history of the regulations to suggest that the Commission viewed any one of i
l i
L
these means as less final than any other with respect to the licensee carrying out the disposal.
Though it is clear that the movement toward land disposal of waste was impelled by economic rather than safety considerations (s.gg generally, U.S. Ecology Exs. 3 and 4), the Comission did recognize one significant distinction between the two methods: the need for long-term monitoring of land disposal sites. Prior to 1960, applications for comercial land disposal of waste had been denied " basically because of the inability of applicants to assume long-term maintenance and control of the burial site." U.S. Ecology Ex. 4, p. 7. As a solution to this problem, the Comission in 1961 amended 10 CFR 6 20.302 to preclude applications for waste disposal on privately owned land.
The brief Statement of Considerations accompanying the 1961 amendment indicates that the Comission drew a clear distinction between the comercial waste disposal operator and the disposal site owner. 26 Fed. Reg. 352 (1961). The former was expected, or at least suspected, j to eventually leave the scene; the latter, for public health and safety reasons could not be allowed to depart. It is difficult to see how the requirement for federal or state ownership of disposal sites could have been viewed as a solution to this problem unless the Comission anticipated government assumption of responsibility for site maintenance and monitoring after the withdrawal of the license. However, the l
i l
o
_g.
s conditions for that withdrawal were not expressly defined by regulation until the adoption of 10 CFR Part 61 over 20 years later.
On October 25, 1978, the Commission published an Advance Notice of Proposed Rulemaking concerned with the development of specific regulations to govern the disposal of low-level radioactive wastes. 43
. Fed. Reg. 49,811 (1978) Among the subjects covered was the establishment of procedures for the final closure of land disposal sites. A final rule incorporating what is now 10 CFR Part 61 was published on December 27, 1982, and took effect January 26, 1983. 47 Fed. Reg. 57,446 (1983). The applicability of the provisions of Part 61 to licenses in effect on that date was to be " determined ont a case-by-case basis." 10 C.F.R. 5 61.1(a) (1986). '
l III. THE POSSESSION ISSUE i
When the NRC licenses a private company to perform specific l
activities such as receipt, possession, transport, storage or disposal of low level radioactive waste, the Company incurs obligations to protect the public health and safety. Those obligations, described in the Atomic Energy Act and implementing regulations, are imposed primarily through the grant of the license to undertake the activities specified. Each license specifies with particularity the kinds and amounts of nuclear waste a private company may possess. U.S. Ecology argues that it is well established as a matter of law "that burial of l
o low level waste in accordance with license requirements finally disposes of the waste such that it is no longer ' possessed' by the licensee".
Brief, p. 4. Therefore, licensee concludes that it has no continuing obligation under its license to protect the public health and safety with respect to such waste. The crux of licensee's argument denying any remaining obligation with respect to waste buried at Sheffield is the meaning of the term " possess" in its license.
In support of its argument, licensee cites a 1979 memorandum from the Chief of the Low Level Waste Branch which disputed a draft legal position that buried waste continued to be " possessed" by this licensee.
The Branch Chief argued that the proposed legal position was at odds with historical practice and would create a conflict with the possession
! limits imposed on licensees since the possession limits did not include buried waste. Licensee further supports its position with a 1964 i
memorandum by the NRC General Counsel stating, inter alia:
... special nuclear material which has been disposed of by land burial is no longer " possessed or used" by the burial ground l
operator within the meaning of those terms as set forth in
! 5 150.11(b).
l U.S. Ecology Ex. 2 at 3. Section 150.11(b) dealt with the cumulative quantity of nuclear material that a licensee was permitted to possess.
The limitation on possession was intended as a control to prevent l
y .
pr it commercially licensed organizations from possessing enough nuclear material to form a critical mass.3 The General Counsel concluded:
Consequently, only those amounts of special nuclear material which are unburied need be taken into account in determining whether or not a burial ground operator is in possession of an amount
- sufficient to form a critical mass.
Licensee buttresses its argument by asserting that the Comission always considered sea burial of waste as final disposition and viewed land disposal in the same way. Licensee cites a 1959 letter from the Acting Chief of the Licensing Branch to U.S. Ecology stating that:
i When disposals are made at sea, and the material is no longer in your possession, you should reduce your physical possession inventory accordingly.
U.S. Ecology Ex. 5. Licensee concludes that "the Comission has always i
deemed ' possession' of licensed material to cease upon ' final disposal'"
by land burial or sea disposal. Brief, p. 20. Licensee cites other memoranda in support of its contention that burial of waste at sea terminated licensee possession and that the Comission always treated land and sea burial as equivalent. U.S. Ecology Exs. 7, 8, 9 and 10.
3 The regulations in 10 CFR Part 150 implement the authority granted the Comission by Section 274(b) of the Atomic Energy Act to transfer certain regulatory responsibilities to " agreement states".
Section 274(b)(4) provides that Comission authority may be discontinued in such states with respect to special nuclear materials "in quantities not sufficient to fonn a critical mass". 42 U.S.C. 5 2021 (1984).
, , - - , ,, --, - - - - - - ~ ~ - - ,- -,---w ,
U.S. Ecology asserts that the regulatory scheme further supports its position, citing 10 CFR Q 20.302, " Method for obtaining approval of proposed disposal procedures." Licensee argues that subsection (b),
concerning safety of disposal at sea, reflects the Commission view that disposal was permanent and final. Brief, 16-20. U.S. Ecology then points to the 1980 Statement of Considerations eliminating Section 20.304 permitting burial of small quantities of radioactive material.
Licensee quotes the Statement of Considerations that the deletion "would not require any action concerning material already buried under the present provisions of Q 20.304." 43 Fed. Reg. 56,677 (1978).
Additional documents are cited in support of the proposition that the amount of nuclear material that can be possessed by licensees is limited; thus the term " possess" applies only to stored materials, not buried materials. U.S. Ecology Exhibits 13, 16, 17, and 18.
U.S. Ecology also asserts that Illinois law and the Sheffield lease issued by the State further confirm U.S. Ecology's interpretation of
" possess". Section 6 of the Illinois Radioactive Wastes Act provides in part:
All rights, title and interest in, of and to any radioactive waste materials accepted by the Department of Nuclear Safety for permanent storage at such facilities, shall upon acceptance become the property of the state ... .
Ill. Ann. Stat. S.H.A. ch. 1111, 230.6 (Smith Hurd 1980). Licensee concludes that because the State must have title, U.S. Ecology could not
13-possess the buried material. Licensee finds corroboration of its argument that the State possesses buried waste in Article V, Section H, of the Sheffield lease. Section H incorporated the statutory language and provided that title to all waste transferred to the State when the waste arrived at the Sheffield receiving dock. Licensee argues that because the lease was reviewed and approved by the AEC, the AEC concurred in the view that the State took title to the waste even prior to burial. Thus, the argument goes, U.S. Ecology could not possess buried waste, the title to which passed to the State even before burial.
The State of Illinois strongly disagrees with licensee's position, basing its arguments on language in the 1966 License amendment authorizing U.S. Ecology to bury waste at the Sheffield site, the absence of an NRC license authorizing the State to " possess" the waste, the absence of any evidence that the state has " accepted" the waste pursuant to its Radioactive Wastes Act, and the argument that relocation of nuclear waste from storage to land burial does not terminate the licensee's possession under the Atomic Energy Act. Illinois Brief, 9-15.
The NRC Staff agrees with the State of Illinois. Staff argues that all nuclear materials including the waste in question must be under an l
j NRC license unless subject to an agreement state license, noting that Illinois is not at this time an agreement state under the Atomic Energy Act. Nor does the waste material in question fall under any exemption l
l l
-w ,-, - - - , - , , m--- -
7
from an NRC license. Consequently, the Staff argues that U.S. Ecology is the only licensee for the buried waste in question and thus is obligated to observe " Commission regulations, license conditions, and orders to protect the public health and safety ... " or be subject to enforcement proceedings and penalties. Staff also points to the regulatory scheme which prohibits transfer, assignment, or disposition of a license without approval of the Commission. Thus, Staff concludes that " possession of licensed material may not be transferred except to authorized persons ... ," citing 10 C.F.R. SS 30.41(c), 40.51(c),
70.42(c); Rochester Gas & Electric Co., 8 NRC 551 (ALAB-507, 1978); and Nuclear Advisors Inc., 2 AEC 196 (1962), 2 AEC 254 (1963). Staff Brief at 6-7.
Therefore, the Staff asserts that burial is immaterial because licensed waste remains the responsibility of the licensee until e
transferred in 4ccordance with law and regulations. Ultimately, Staff argues that only the NRC could determine when responsibility for licensed materials ends. Staff dismisses the memorandum of the Low Level Waste Branch Chief as without authority not only because the legal question was not within his purview, but also because, Staff avers, his position was contrary to the view of the Commission then and now.
In addition, Staff finds that the 1964 General Counsel's memorandum does not support U.S. Ecology's position because the memorandum did not address the possession issue but rather addressed the Part 150
limitation on critical mass. Staff argues that the General Counsel simply found that buried materials were not included in materials possessed for the purpose of Part 150 limits. The Staff finds its conclusion supported by both the Statement of Considerations and a 1965 amendment to Section 150.11(b) and the language in Section 61.16(b)(1).
Staff Brief, at 10-11.
Staff disputes U.S. Ecology's argument that land and sea burial are identical. Staff finds Comission treatment of land and sea burial different, pointing to an evolving policy described in part in the Statement of Considerations for Section 20.302(b). 36 Fed. Reg. 23138 (December 4,1971). That statement pointed to NRC concerns about ocean dumping and the need for continued NRC control and review. Staff also finds U.S. Ecology's Section 20.304 argument unfounded, asserting that the Staff has never taken the position that disposition under Section 20.304 relieved the licensee of its obligations under the license.
Staff Brief, p. 13.
Similarly, Staff distinguishes between ownership ano possession with respect to licensee's argument under the Illinois Radioactive Wastes Act. Staff renews its argument that a specific license is required to possess nuclear material, that Illinois does not have such a license, and, thus even if the State holds title to the material buried at Sheffied, it does not possess it because it does not have a specific license to do so. Staff Brief, pp.13-15.
IV. THE UNILATERAL TERMINATION ISSUE U.S. Ecology asserts that it had the right to unilaterally terminate its license primarily because that was its expectation at the time it entered into the operation of the Sheffield disposal sit?. The Comission, it asserts, had always accepted non-renewal as a sufficient indication of termination, and the agency had no regulations or other fixed procedures for the review, approval or conditioning of licensee withdrawals. Since neither the license itself nor any Comission regulations expressly precluded unilateral, unconditional termination, U.S. Ecology's assertion of that right was effective.
NRC Staff counters that the Comission had in fact begun to scrutinize terminated materials licenses well before U.S. Ecology's attempted termination of its license. The point of this, presumably, is.
to show that the licensee's expectation as to its "decomissioning" l
l obligations had, or should have changed. However, the only example i
given by the Staff of an actual application for termination of such a license pertains to a materials storage and processing facility, not a disposal site. Staff Brief, p. 17. Similarly, U.S. Ecology's example of apparent Comission acquiescence in a license expiration also l pertained only to non-disposal activities. U.S. Ecology Brief, p. 34; 1
Staff Brief, p. 18.
1
U.S. Ecology recognizes that its assertion of a right to unilateral termination of its license leaves an important question as to who should now be held responsible for long-term surveillance of the Sheffield site. It contends that that responsibility now devolves upon the State of Illinois because, essentially, that is the result that all of the parties contemplated when the site was established and the license originally issued.
U.S. Ecology notes the Commission's reluctance to license land disposal facilities prior to 1960 because of the inability of private applicants to give adequate assurance of long-term maintenance of disposal sites, and its amendment of its regulations to require that such facilities be established only on government land. U.S. Ecology Brief at 46-51. It points out that the Sheffield site was not approved until the Comission had received the requisite assurances from the State of Illinois that it would assume responsibility for long-term I maintenance and surveillance in the event of licensee's termination of l
j operations; and the existence of these assurances was repeatedly referred to in subsequent Comission documents pertaining to Sheffield.
Finally, U.S. Ecology cites its lease with Illinois which provided in part:
[I]f for any reason at any time the Corporation should default or fail to comply with the terms of its license, or for any reason withdraw from the premises, the State would be required to assume surveillance and maintenance obligations.
l l
-I8-U. S. Ecology Brief, p. 73; Illinois Ex. 3, Article VIII. Illinois points out that this lease provision is contained in an article dealing witn the establishement of a perpetual maintenance fund, the purpose of which was to assure the availability of funds to pay for long-term site maintenance in the event of the licensee's inability or refusal to do so. It is a sort of insurance policy, not, the State argues, an authorization for licensee abandonment of its responsibilities.
Illinois also denies that the expectations of the parties with respect to their mutual obligations concerning Sheffield were inalterably fixed from the outset. It notes that the express terms of the license render the licensee subject to "all other applicable rules, regulations, orders of the Atomic Energy Commission now or hereafter in effect." Illinois Ex. 2. Land disposal of radioactive waste was a new and potentially hazardous activity requiring regulatory flexibility to adapt requirements to evolving knowledge. Illinois Brief, p. 28. Thus, the licensee knew or should have known that changes in the conditions of its waste disposal operations were likely.
I i
Finally, the Staff argues that whether or not Illinois wants to assume responsibility for the Sheffield site, the licensee cannot unilaterally transfer that burden. To do so would, the Staff asserts, constitute either a transfer of a license or of licensed materials (the buried waste) to an unlicensed recipient in violation of Connission regulations. Staff Brief, p. 21.
l l
I
V. DECISION A. Possession Issue In its possession argument, U.S. Ecology relies on 10 CFR 5 150.11(b). The purpose of that section was to determine whether private organizations in an agreement state possessed a sufficient quantity of radioactive waste to form a critical mass. U.S.
Ecology attempts to use section 150.11(b) to terminate its obligations with respect to the waste activity it was licensed to perform. It is clear that both the General Counsel and the Chief of the Low Level Waste Branch were concerned with the critical mass issue. In essence they concluded that radioactive waste which had been separated from stored radioactive waste and disposed of in burial should not, as a practical matter, be included in the total quantity of radioactive waste at a given site for the purpose of determinina whether a critical mass was present. In that limited context, U.S. Ecology is correct in that it did not possess buried waste for the purposes of critical mass calculations.
However, it is equally clear that U.S. Ecology's responsibility for radioactive waste delivered to its Sheffield site did not terminate at the surface of the earth. Two principal facts buttress that conclusion.
The first is the language in the original license providing that i' was subject to "all other applicable rules, regulations, and orders ut .ae
-, . _ . . - -y y_ _ ,7._.m _,_ _ . - . . , , , _ _ - . . . _ _ , _ . . _ , . _ . , . _ _ . _ - , . . - _ . , - , , , , . , - . . , _ . , , . _ . - _ . . _ . . ..s, __.
Atomic Energy Commission now or hereafter in effect ... ." That language, which first appeared in the 1964 license, was repeated verbatim in the 1966 Amendment No. 7 authorizing burial activities and was, at the least, incorporated by reference in all subsequent amendments up until the time that U.S. Ecology announced its unilateral termination of the license in 1978. Thus U.S. Ecology and its predecessors were on notice from the outset and were reminded repeatedly with each license amendment that burial activities would be subject to any changes in the regulations. Consequently, the 1978 proposal to enact Part 61 establishing criteria for closing burial sites that took effect in January 1983 could not have been unanticipated. The better view is that the parties to the license (NRC and U.S. Ecology) expressly anticipated new regulatory requirements and provided for them in the license.
Secondly, Amendment No. 7, in addition to making burial activity subject to NRC rules, regulations, and orders contains specific provisions concerning how radioactive waste was to be buried. Ill.
Ex. 2, Amend. No. 7, paras. 11 and 12. Those burial specifications provided that buried packages of special nuclear material should be surrounded by "a minimum of 8 inches of earth in all directions from any other packagas containing nuclear material." Paragraph 12 of the Amendment discussed testing of water samples for concentrations of radioactive material "to determine whether or not the increase [in such concentrations] is due to the land burial operations" and directed the
licensee to notify the Director, Division of Licensing, within 30 days of any such finding. Those conditions were repeated ir. Amendment No. 8.
Amendnent No. 9 added two more provisions, one concerning trench excavations relative to the water table and another concerning mounds for the completed burial trenches. Amendment No. 10 authorized the burial of a steel bottle of tritium. Amendment No.11 dated January 6, 1977 restricted the burial of transuranic waste "in concentrations greater than 10 nanocuries per gram". Burial waste was subject to ongoing monitoring and maintenance, a responsibility U.S. Ecology anticipated in its application to expand the facility. See, e.g.,
Safety Analysis Report for Sheffield Low Level Radioactive Waste Disposal Facility, 11 3.4.2.4.1.D, 3.4.2.4.3.C., and 3.5.5. Clearly, burial activities were subject to the continuing addition of new 4
requirements.
A July 13, 1967 memorandum by the Materials License Division casts further light on the expectations of the parties concerning burial.
That memorandum provided at page 5 that "It is not expected that once 4
the packages are in the ground that they will maintain their integrity and will provide protection against loss of contents." Ill. Ex. 4.4 It 9
4 The pertinent portion of the Memorandum provided:
(Footnote Continued)
? .
is clear from the memorandum that burial operations were an ongoing activity which not only needed to be secured by the licensee by a 6-foot chain link fence topped with barbed wire, but also required ongoing maintenance of buried materials. It should be noted that that same memorandum provided that "The primary purpose of [ ownership of the site]
is to assure the necessary long-term control of such land in the event the licensee is unable, for any reason, to maintain the operation." We do not read that language to authorize the licensee to unilaterally abandon its obligation to the buried material. Rather, the language (Footnote Continued)
California Nuclear, Inc. [U.S. Ecology's predecessor] will bury packaged waste as received from customers or in packages prepared by the licensee. It is not expected that once the packages are in the ground that they will maintain their integrity and will provide protection against loss of contents. The packages containing radioactive wastes provide ease of handling and prevent spread of radioactive material during burial operations. Burial operations will be carried out in open pits or trenches. These trenches will be dug by standard earthmoving equipment so that they will be i approximately 300 to 500 feet long, 20 to 40 feet wide, and 20 to 25 feet deep. Backfilling operations will normally be conducted at j the end of each day's operations to minimize the dose rate to operating personnel and to minimize possible spread of contamination to the environment. Earth will be mounded over the top it.yer of packages in a trench so that there will be a minimum L
of 4 feet of earth at the center and 3 feet of earth at the edges.
The mounding provides a measure of protection against infiltration of water into the trench. Concrete monuments will be erected at each end of a filled trench. A metal plate will be placed on each monument which will specify the total activity of byproduct, source, and special nuclear material contained in the trench at the time of burial and the date on which the monuments were erected.
The burial area will be surrounded by a 6 foot cyclone-type fence topped with barbed wire to prevent unauthorized entry. The fenced area and buildings within the area will be locked at all times when work is not being performed.
23-contemplates the longer-term responsibility of the State, the duration of whose existence can clearly be anticipated to be considerably longer than the duration of the existence of a private enterprise.
The foregoing recitation of license terms and conditions and the nature of the licensee's burial activities clearly describes an ongoing and active responsibility for buried materials. That responsibility remains regardless of whether the possession argument were to be resolved in favor of U.S. Ecology, but the possession argument cannot be so resolved because the term as used in all the documents cited by U.S.
Ecology fundamentally relates to the long-established Comission policy against having a commercial entity, or for that matter a state, possess an amount of radioactive waste materials sufficient to form a critical mass without the appropriate NRC license.
Accordingly, we hold in answer to the first issue posed by these motions for summary disposition that U.S. Ecology, Inc. has a continuing responsibility under its license for radioactive waste materials buried at the Sheffield site and that the concept of " possession", as it l
relates to source, byproduct, or special nuclear material in this case, relates only to the 10 CFR 5150.11(b) critical mass limitation.
, - - ~ - - - - , , .- . p. . , . -- - - _ ., _ . _ . - - - - , , _ _ - -
B. Termination Issue A license is a grant by a governmental agency, in this instance the Nuclear Regulatory Comission, "of the right to engage in conduct that would be improper without such a grant." 4 Mezines, Stein, Gruff, Administative Law, Q 41.01(1985). That right carries with it specified o';11gations set out in the form of regulations, official guidance, and orders. It is clear from the Atomic Energy Act itself that both the grant and the termination of rights and obligations under a license was subject to the overriding concern for the public health and safety.
While it is clear with respect to materials licenses that the Commission's policies have been evolving over the life of the U.S.
Ecology license, it is equally clear that the Comission has never permitted a licensee to terminate its license unilaterally where continuing health and safety concerns remained. Thus, the examples cited by U.S. Ecology of the termination of a license to store and possess nuclear materials without further activity is inapposite to the situation presented by buried radioactive waste. In those instances, no threat to the public health and safety remained. The absence of regulations or fixed procedures for approval or conditioning of such license termination is not controlling because in those early years review and approval was conducted by the Staff in the ordinary course of business on a case by case basis. The NRC's focus during the period was primarily on opening, not closing, burial sites. However, it is
eminently clear that the medium in which the waste was being buried, land, was a complex of elements and factors constantly subject to change. Thus, NRC and U.S. Ecology were aware from the outset that buried waste would require not only ongoing monitoring but ultimately final stabilization in the ground consonant with current technology at the time of site closure. Clearly, the Commission did not and could not permit storage licensees to leave radioactive materials unattended and simply walk away.
Similarly, the record is also clear that a license was required before any " person" could obtain and retain custody of radioactive materials. We find compelling the argument of Illinois and the Staff that the State of Illinois has never been granted a license for any kind 1
of radioactive materials.
It is equally clear that the statutory scheme requiring state ownership of radioactive waste burial grounds was not intended to resolve near-tenn obligations to stabilize such sites, but rather was l intended to provide an ultimately responsible institution over hundreds of years after a burial site had been closed and the consnercial entity had departed. Thus, U.S. Ecology's argument that Illinois had title to radioactive waste from the time of its arrival at Sheffield is not persuasive. Although not saying so in so many words, the statutory i
scheme clearly distinguishes between title to, and custody of, l
l
1., .
o' radioactive waste. The obligations at issue in this dispute relate to custody, not to title.
Nor do we find that the Illinois statute or the lease language operated to make the State of Illinois a guarantor for U.S. Ecology's burial obligation under its. license with the Nuclear Regulatory Commission. At most the language might be thought to make Illinois an indemnitor with all of its rights against U.S. Ecology preserved.
Similarly, we do not find that the perpetual maintenance fund was intended to serve as a liquidated damages clause. The State's view of the purpose of the fund better fits the overall statutory scheme, namely, that the fund was intended to be used to defray perpetual maintenance costs after the terms and conditions of the site closure had been satisfied by the licensee. To conclude otherwise again would be to render the State a guarantor of U.S. Ecology's licensing obligations, a reading for which we can find no support.
Finally, we are persuaded that the license language itself in
- Amendment No. 7 subjecting U.S. Ecology to "all other applicable rules, regulations, orders of the Atomic Energy Comission now or hereafter in effect" was intended to bind U.S. Ecology to the site stabilization and closure requirements ultimately set out in Part 61. It was clear in the period of the late 1950's and early 1960's, when land burial was first authorized, that a new solution to one of the problems of a new
.m- - , - , _ - _
..-._.._-__m.__.____-.___ -
.~
technology was just beginning to be addressed. It is also clear that the solution would be of an evolutionary nature. Thus, the parties included language in the license that specifically contemplated future changes to regulations governing disposal of radioactive waste. Such language was congruent with the Federal Government's fundamental responsibility to protect the public health and safety.
Consequently, with respect to the second issue to be decided, we find no support for the proposition that U.S. Ecology can unilaterally terminate License No. 13-10012-1 for activities at Sheffield without affirmative action by the Commission, and we hold that U.S. Ecology cannot so terminate its license.
VI. NEED FOR HEARING The conclusions of this decision were communicated to all parties by telephone conference call on February 20, 1987. All parties indicated their belief that the board should now set for hearing the issue of the conditions to be imposed on U.S. Ecology for closure of the Sheffield site before it can terminate its License. March 24, 1987 was agreed to by all parties as the date for commencement of the hearing.
The board understands that settlement negotiations on the remaining issue are continuing and that the prospects for settlement seem favorable. While we encourage the parties to continue these negotiations we conclude that a schedule for hearing should be set to
T. *
,~
resolve the remaining issue if the negotiations for any reason do not succeed.
VI. ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is this 20th day of February,1987 ORDERED
- 1. That the Motion by U.S. Ecology, Inc. for Sumary Disposition is denied;
- 2. That the parties are directed to file prefiled testimony and proposed findings of fact and conclusions of law to be received by the Board and the parties on or before March 16, 1987; and
- 3. That the hearing in the captioned matter, preceded by a site visit on March 23, 1987, shall commence on March 24,1987 at a
time and place to be determined.
THE ATOMIC SAFETY AND LICENSING BOARD B. Pa'ul Cotter, Jr;Khairman ADMINISTRATIVE JUDGE A4AM Drj Jerry R1 Klind ADMINISTRATIVE JUDGE Dr. Enuneth A. Luebke ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland, this 20th day of February 1986.
l l
i l
-- - - - - -. -_. ._ . _-_