ML20214A716
| ML20214A716 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 11/12/1986 |
| From: | Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Cotter B, Kline J, Leubke E Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1532 SC, NUDOCS 8611200207 | |
| Download: ML20214A716 (4) | |
Text
. p 4 Ttt0MBER .-
f.
PROD. & UTIL FAC.c
/ 3og UNITED STATES
- 8 o NUCLEAR REGULATORY COMMISSION g :: E WASHINGTON, D. C. 20555 00
%,...../
- 86 NOV 17 P3 :16 November 12, 1986 0FFl. u a E. Paul Cotter, Esq. , Chairman Jerry R. Kline $7a Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board S U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Emmeth A. Leubke Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 In the Matter of U.S. ECOLOGY, INC.
(Sheffield, Illinois Low-Level Radioactive Waste Disposal Site)
Docket No. 29-39
Dear Administrative Judges:
On November 10, 1986, the Staff filed its response in opposition to U.S.
Ecology's motion for summary disposition. Inadvertently, we attached an out-of-date service list. In order to avoid any confusion we are re-serving the pleading to the correct service list. We have informed counsel for U.S.
Ecology and the State of Illinois of this procedure.
We are sorry for any inconvenience we may have caused to the parties.
Undersigned counsel's notice of appearance is also attached to the pleading being re-served today.
Sincerely, m , ok Ann P. Hodgdon i
Counsel for NRC Staff Ofdce of the General Counsel
Enclosure:
As stated cc w/ enclosure: Service List l
8611200207 861112 PDR ADOCK O2700039 C)
C PDR
LNITED SIWIES OF AAERICA NOCIIAR REWIAIMY CIMilSSIm BEIGE TIE ATWIC SAFEIY AND LICHiSING BOARD In the hhtter of )
)
U.S. BOCIOGY, INC. ) Docket No. 27-39
)
(Sheffield, Illinois Low-Level )
Radioactive Waste Disposal Site) )
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter. In accordance with 6 2.713(b),
10 C.F.R. , Part 2, the following information is provided:
Name: Ann P. Hodgdon Address: U.S. Nuclear Regulatory Ca mission Office of the General Counsel Washington, D.C. 20555 Telephone Number: (301) 492-8655 Admissions: D.C. Court of Appeals Names of Party NRC Staff
, Respectfully sutmitted, I
1
% ob ~
l Ann P. Ilodgdon Counsel for NBC Staff Q Dated at Bethesda, libryland this 12th day of Novanber,1985 l
l
November 10, 1986 UNITED STATES OF AMERICA NUCLEAR RECULATORY COMMISSION BEFORE THE ATOMm SAFETY AND LICENSING BOARD In the Matter of )
)
U.S. ECOLOGY, INC. ) Docket No. 27-39
)
(Sheffield, Illinois Low-Level )
Radioactive Waste Disposal Site) )
I NRC STAFF'S RESPONSE IN OPPOSITION TO
! U.S. ECOLOGY'S MOTION FOR
SUMMARY
DISPOSITION I. INTRODUCTION On October 14, 1986, U.S. Ecology, Inc ("USE") filed a motion for summary disposition on two issues of law raised in the proceeding on the NRC staff's immediately effective show cause order by which the Staff l required USE II to resume its responsibilities and obligations under its license at the Sheffield site. In its motion, USE asks the Licensing Board to find that it does not possess the source, byproduct and special nuclear material buried at the Shefficld site and that it had the right to unilater-ally terminate its license for activities at Sheffield without affirmative ac-tion by the Commission. For the reasons discussed below, the NRC staff disagrees with USE's interpretation of the law regarding possession and license termination and, therefore, opposes USE's motion.
-1/ In its response the Staff refers to the licensee as U.S. Ecology
("USE") or Nuclear Engineering Company ("NECO"). The original licensee for the site was California Nuclear. Prior to the events that gave rise to this proceeding, California Nuclear was acquired by Nuclear Engineering Company ("NECO") . Subsequently, NECO changed it name to U.S. Ecology. See " Order Changing Name of Licensee . . ." (February 25, 1981).
01 ->ns y
- 4(l ( ( C.-M doc
- O II. BACKGROUND This proceeding grew out of an earlier proceeding conducted on the application of U.S. Ecology, then known as Nuclear Engineering Company l
("NECO") , to expand its low-level radioactive waste disposal site near Sheffield, Illinois. 2_/ The presiding Atomic Safety and Licensing Board granted a number of petitions for intervention on NECO's application. 3,/
On March 8, 1979, NFCO informed the NRC that it was withdrawing its application for license renewal and site expansion and that it had termi-noted its license. b On March 20, 1979, the 1;RC staff issued an immediately effective order to show cause. The order required NECO to resume its responsi-bilities 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 menorandum and order sustaining the immediate effectiveness of the Staff's show cause order and referring the issue raised, whether NECO could unilaterally terminate its Ifeense, to the Licensing Board presiding over the proceeding on the license renewal and site expansion application.
Nuclear Engineering Company (Sheffield , Illinois Low-Level Radwaste Waste Disposal Site), CLI-79-6, 9 NRC 673 (1979).
2_/ See 42 Fed. Reg. 61522 (December 5,1977).
-3/ " Order Disposing of Petitions to Intervene" (March 1,1978); " Order Granting Petition to Intervene" (April 3,1978) and " Order Granting Further Request for Leave to Intervene" (June 20, 1978).
l
~4/ " Notice to Atomic Safety and Licensing Board of Withdrawal of Appli-cation and Termination of License for Activities at Sheffield" (March 8,1979).
l
I Following a special prehearing conference, the Licensing Board is-sued an order in which it identified the three issues raised in the notice of hearing 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 Comn'ssion.
- 3. If NECO cannot terminate its license without affirmative action by the Commission, what conditions, if any, are appropriate to impose in order to protect the public health and safety as w as the environment before NECO may quit the site. pl Following a number of continuances granted by the Licenning Board at the bebcat of the parties to accommodate their attempt to reach a set-tlement agreement , the Board conducted a prehearing conference on August 19, 1986 during which it set a schedule for filing and responding to a summary disposition motion on the two legal issues identified by the Board: (1) whether USE possessed the material buried at Sheffield; and (2) whether USE had the right to terminate its license unilaterally without
- affirmetive action by the NRC. 0- USE filed its motion on October 14, 1986, pursuant to the amended schedule ordered by the Board. O 5_/ "Prehearing Conference Order and Order Setting Time for Discovery" at 2 (September 9, 1980). The Licensing Board had dismissed NECO's site expansion application in a " Memorandum and Order Rul-ing on Motions to Withdraw Application and Dismiss Proceeding" (May 3,1979).
6/ " Memorandum and Order" at 6-7 (August 22, 1986).
l 7/ " Order" (September 24, 1986).
l 1
III. DISCESSI(N A. U.S. Ecology possesses the low level radioactive waste buried at its Sheffield site.
U.S. Ecology argues that the Commission's " policy as authoritatively expressed has always been that buried waste is not possessed." Motion at 8-22. Contrary to USE's characterization, the issue of whether buried waste is possessed is not a policy matter but a matter of law. And the law, as discussed below, establishes that USE possesses the buried waste at its Sheffield site until the Commission relieves it of that responsibility.
USE relies on a memorandum from Michael J. Bell, Chief, Low-Level Waste Branch, to Edwin J. Reis, Assistant Chief Hearing Counsel, as support for its argument that the buried waste at the Sheffield site is not in its possession. The memorandum, which communicated Mr. Bell's views to counsel during the development of the Staff's response to a NECO plead-ing, expresses his disagreement with counsel's interpretation of the Atom-ic Energy Act of 1954, as amended, 42 U.S.C. 5 2011 et seq. (AEA), as it applies to buried nuclear materials. However, Mr. Bell's responsibility at that time was in the technical area related to the regulation of low lev-el waste and not in the interpretation of the law regarding this area of regulation. In the area of his responsibility and expertise, Mr. Bell had concluded in 1!179 that the burkd material at Sheffield might constitute a radioactive harard to the hchlth and safety of the public. 8_/ Mr. Bell's views, however, did not provide the basis for the position taken by the Staff in this proceeding. Rather, the Staff's views were reflected at that
-8/ See Affidavit attached to "NRC Staff's Response to Licensee's Motion for Emergency Action" (April 2,1979).
time in the Staff's Reply to Applicant's Motion to Dismiss the Proceedings, filed March 20, 1979. The Staff continues to subscribe to the views ex-pressed there.
The AEA and the Commission's regulations provide ample legal sup-port for the Staff's conclusion that USE possesses the waste buried at Sheffleld.
- 1. The Atomic Energy Act l
Under the AEA, nuclear materials, whether special nuclear ma-terial, source material removed from its place of deposit in nature or byproduct material, E must be under NRC license, unless subject to agreement state licensing. 1_g/ AEA ff 53, 57, 62, 81, 42 U.S.C.
Il 2073, 2077, 2092, 2111. No State or other person may receive, pos-secs or transfer such material without a Commission license. S See 1
Rochester Gas and Electric Corp. (Sterling Power Project Nuclear Unit Ho.1), AI.AD-507, 8 NRC 551 (1978). Although under the AEA the Com-mission may exempt certain uses, quantities or users of special nuclear material or byproduct material from license requireinents, the Commission must first make a finding that the exemption of such quantities, uses or users of the material would not constitute an unreasonable risk to the l health and safety of the public or be inimical to the common defense and l
l security . AEA Section 57(d) and Section 81, 42 U.S.C. If 2077(d) l l
-9/ These termo ere defined in AEA Section lle, z and aa, 42 U.S.C.
Il 2014e, z and an.
-10/ Illinois, where the subject facility is located, is not at this time an agreement state under AEA I 274, 42 U.S.C. 2021 (see also 10 C.F.R. Part 150).
-11/ " Person" is defined to include the states. AEA 5 11(S), 42 U.S.C.
I 2014(s).
a
. and 211I. Quantities of source material that in the opinion of the Commission are unimportant are also exempt from licensing. AEA Section 62, 42 U.S.C. Il 2092; 10 C.F.R. I 40.13. Thus, under the applicable provisions of the Act, all receipt, possession or transfer of material must be in accordance with the authority contained in an NRC
) license or regulations, unless an exemption has been granted by the Com-4 l mission. Those in possession of such material must observe Commission regulatione, license conditions and orders to protect the public health and safety. Failure to follow regulations, license conditions or orders, or to be in possession of nuclear material or to transfer such material without the requisite authority, subjects one to enforcement proceedings and po-tential civil and criminal penalties. AEA Sections 228, 232, 234, 42 U.S.C. II 2278, 2280, 2282.
- 2. The Commission's Regulations The NRC regulations implementing the sbove provisions of the AEA similarly provide that no person may receive, possess, use or transfer nuclear material without a license. See 10 C.F.R. II 30.3, 40.3, 61.3 1_3/ and 70.3. No license for possession of such materials or right under such license may "be transferred , assigned or in any manner i
-12/ 'fPerson" is defined to include State and local governments, j 10 C.F.R. Il 30.4, 40.4, 61.2 and 70.4.
l 13/ 10 C.F.R. Part 61 was promulgated December 27, 1982, 47 Fed. Reg. 57463. Its applicability to licenses for waste disposal facilities in effect on the effective date of the rule, January 26,1983, "will be determined on a case-by-case basis and implemented through terms and conditions of the license or by orders issued by the Commis-sion . " 10 C.F.E. I 61.1(a). USE's license was in effect on the
! cffective date of Part 61. Thus, the provisions of Part 61 are not applicable to USE's license for activities at the Sheffield site unless imposed by order or license condition. No such action has been taken by the NRC with regard to this license.
J
l l
disposed of, either voluntarily or involuntarily, directly or indirectly" without approval of the Commission. 10 C.F.R. II 30.34(b), 40.46, 61.24 and 70.36. Although no specific license is needed for the ownership of such material, (See, 10 C.F.R. II 31.9, 40.21 and 70.20), possession of <
licensed material mey not be transferred except to authorized persons where the transferor verifies the transferee has a specific license to pos-sess the material. 10 C.F.R. II 30.41(c), 40.51(c), 70.42(c); Rochester Gas & Electric Co. , supra; Nuclear Advisors, Inc. , 2 AEC 196 (1962), 2 AFC 254 (1963).
- 3. Effect of Burial On the Need for a License Under the foregoing provisions of law and the implementing regulations, USE required and continues to require a license for the ma-
- terial buried at Sheffield until it no longer possesses the material or is
! otherwise relieved of responsibility for the material by the NRC. USE argues that it is not responsible for the material buried on the land it leased from the State of Illinois on its theory that as a matter of Commis-sion policy buried waste is not possessed. b Motion at 8. However, to be relieved of responsibility for the buried waste at the Sheffield site, USE would require a Commission exemption which the Commission has the authority to grant "upon a finding that it will not constitute an unreason-able risk to the common defense or security and to health and safety of the public." AEA 5 81; see also, AEA 55 57(d) and 62. USE has not been able to point to any Commission regulation or Commission finding
- exempting from lleensing persons in possession of licensed material re-l l -14/ USE's Sheffield facility is sited on land owned by the State of Illi-l nois. The 99-year lease agreement entered into in 1966 is attached to USE's motion as part of Exhibit 36.
l
. ~
ceived from others as waste and buried in the quantities involved here.
Nor has the Commission found that the quantity or use or the possession by USE of the amounto and kinds of licensed byproduct, source and spe-cial nuclear material authorized to be buried on site would not constitute an unreasonable risk to public health and safety in the absence of contin-ued monitoring and control. Under the statutory scheme of the AEA and the Commission's regulations, the material at USE's Sheffield site must be under license. It is immaterial that it has been buried. The material USE accepted for burial was under license and there has been no Commis-sion action to remove it from the requirements of the regulations or oth-erwise to relieve USE of its rceponsibilities.
The regulations under which operations at Sheffield were con-ducted required persons who intended to dispose of waste by burial to epply for and receive a Commission license. 10 C.F.R I 20.302 b The
-15/ The Commission's regulation in 10 C.F.R. I 20.302 dates to November 17, 1960, 25 Fed. Reg. 10914. On January 18, 1961, the Commission amended Section 20.302 by adding the following statement at the end of the section:
The Commission will not approve any application for a license to receive licensed material from other persons for disposal on land not owned by the Federal govern-ment or by a state government.
26 Fed. Reg. 352 (January 18, 1961).
On December 4,1971, the Commission noticed in the Federal Register that:
- 1. Section 20.302 of 10 C.F.R. Part 20 is amended by designating all but the final sentence as paragraph (a); the final sentence as paragraph (b); and add-ing a new paragraph (c) to read as follows:
- c. The Commission will not approve any applica-tion for a lleense for disposal of licensed mate-(FOOTNOTE CONTINUED ON NEXT PAGE)
regulations required specification of the quantities and types of material to be buried, analysis of the site and provision of procedures for the minimization of the risk of unexpected or hazardous exposure. 10 C.F.R.
I 20.302(a). Other applicable regulations required USE to monitor the waste after burial, keep records of the waste buried and the results of the monitoring, and report any excess radiation coming from the buried waste or theft of the buried waste. See, 10 C.F.R. Il 20.401-409.
These requirements are inconsistent with and negate the idea that once the waste is buried it is of no regulatory consequence.
Thus, a licensec which engages in commercial waste burial does not lose responsibility for the land it has leased or the waste it has buried on that land under the Atomic Energy Act or the regulations of this Commis-sion. It is for the NRC, not the licensee, to determine when that re-sponsibility ends.
l
- 4. AEC General Counsel Hennessey's Memorandum USE also offers in support of its argument that it does not pos-sess the low level waste buried at Sheffield a memorandum dated July 7, 1064, to Harold Price , Director of Regulations, AEC, from Joseph l
Ilennessey, the AEC's General Counsel. USE correctly identifies the gen-l eral subject of the memorandum, the licensing and regulatory authority of i
! (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) rial at sea unless the applicant shows that sea l disposal offers less harm to man or the envi-ronment then other practical alternative meth-ods of disposal.
36 Fed. Reg. 23138 (December 4,1971).
On December 27, 1962, the Commission moved paragraph (b) to Part G1 where an altered version appears as I 61.14, 10 C.F.R. I 24.301(c) relcting to ocean disposal became 10 C.F.R. I 20.302(b).
an agreement State over special nuclear material, where the agreement state licensee, which operates a land burial ground, does not have within its possession at any one time sufficient material to form a critical mass but where the cumulative amount buried in the ground is sufficient to form a critical mass. $ Mr. Hennessey states that it is his opinion that special nuclear material disposed of by land burial is not possessed or used within the meaning of 10 C.F.R. I 150.11(b). He concludes that only unburied material need be counted in determining whether the opera-tor possesses an amount sufficient to form a critical mass.
Although USE reads Mr. Hennessey's memorandum to mean that buried material is not possessed, the memorandum addresses not posses-sion per se but whether Part 150 limits on critical mass for jurisdictional purposes are applicab!c '.o buried material. Mr. Hennessey's conclusion is that they are not. This is consistent with the Commission's oft-stated observation that criticality concerns do not extend to material that is properly buried pursuant to license conditions.
The Commission's regulatiens in Part 01 are explicit on this matter. They state:
Depending upon the nature of the wastes to be disposed of, and the design and proposed operation of the land
- disposal facility, additional information may be requested by the Commission including the following
(b) Safety information concerning criticality,
, if appropriate.
(1) Any application to receive and pos-sess special nuclear material in quantities that would be subject to the requirements of 8 70.24, " Criticality occident require-ments" of Part 70 of this chapter shall demonstrate how the requirements of that
-16/ Mr. IIennessy's memorandum is attached to USE's motion as Exhibit 2 and is discussed at 11-13 of the motion.
section will be met, unless the applicant requests an exemption pursuant to I 70.24(d). In determining whether re-ceipt and nossession would be subject to the requirements of I 70.24, the applicant shall not consider the quantity of special nuclear material that hes been disposed of.
(Emphasis added).
10 C.F.R. F 61.16(b)(1). The Staff agrees with USE that Part 150 limi-tations govern the amount of unburied SNM an Agreement State licensee may possess at a given time; however, the Staff does not agree that bur-fed material is not possessed. USE's conclusion is not compelled by Part 150, nor is it compelled by General Counsel Hennessey's interpreta-tion of Part 150, an interpretation v'hich is valid today and entirely con-sistent with Part 61.
The Staff's rcading is supported by the Statement of Consider-ation published on the Commission's amendment of 10 C.F.R. I 150.11(b) on September 22, 1965, 31 Fed. Reg. 15145. The Commission stated, Even though the total quantity of special nuclear material which a person is enthorized to possess or use within an agreement state may be sufficient to form a critical mass, no problems of accidental criticality are presented so long as the quantity of material possessed and used at any separate location at any one time is insufficient to form a critical mass.
Thus, the concern of the IIennessey memorandum is shown to be bcsed on criticality considerations and not on whether buried waste is possessed.
- 5. 10 C.F.R. I 20.302 USE argues that the AEC/NRC did not distinguish between dis-posal at sea and burial at AEC-designated sites or at leased sites owned by the State or federal government under Section 20.302(b), and that land burial like sea disposal was considered safe, permanent and final.
j Motion at 16. USE's argumert is not well-taken. Had the AEC been as convinced of the safety and finality of land disposal as USE now argues
that it was, there would have been no need to limit land disposal of ra-dioactive waste to sites owned by agencies of the Federal or state govern-ments. Further, in relying on the AEC's thinking that sea disposal was safe and permanent, USE ignores the current regulation in 10 C.F.R.
I 20.302(b) setting limitations on ocean disposal and the Statement of Consideration accompanying the promulgation of the rule that is now
$ 20.302(b). On December 4, 1971 (36 Fed. Reg. 23138), the Commission stated:
With respect to the dumping of radioactive waste, the CEC report [ Ocean Dumping: A National Policy a Report to the President prepared by the Council on Environmen-tal Quality, October 1970] made the following findings and recommendations:
The current policy of prohibiting ocean dump-ing of high-level radioactive wastes should be continued. Low-level liquid discharges to the ocean from vessels and land-based nuclear facilities are, and should continue to be con-trolled by Federal regulations and international standards. The adequacy of such standards should be continually reviewed. Ocean dump-ing of other radioactive wastes should be pro-hibited. In a very few cases, there may be no alternative offering less harm to man or the environment. in these cases ocean disposal should be allowed only when the lack of alter-natives has been demonstrated. Planning of activities which will result in production of radioactive wastes should include provisions to avoid ocean disposal.
The Atomic Energy Commission's policy since 1960 is con-sistent with the policy expressed in the CEQ report.
The AEC has not permitted ocean disposal of high-level radioactive waste. The release of low-level liquid efflu-ents to the ocean from vessels and land-based nuclear facilities, such as nuclear power plants, is subject to Federal controls and continually reviewed.
The Atomic Energy Commission's existing policy to phase t out sea disposal which is consistent with the spirit of l the CEO report, the alternative means available for dis-posal of radioactive waste, and the lack of impact on the nuclear industry of discontinuance of sea disposal of
radioactive waste provide the basis for the amendment to 10 C.F.R. Part 20. The adoption of this rule change does not mean that the Commission considers sea disposal of radioactive waste an unsafe practice. Rather, it ap-plies to licensee operations a policy which already exists for the AEC's own operations and is consistent with the CEQ's recommendations with respect to sea disposal of radioactive waste. The provisions of 5 20.302 do not presently, and will not under this amendment, apply to low levels of radioactive material in liquid effluents re-leased from nuclear facilities in accordance with other provisions of the Commission's regulations.
Under the amendment to Part 20 set forth below, the Atomic Energy Commission would consider, on a case-by-case basis , applications for disposal of radioactive waste at sea. The applicant would be required to show that sea disposal offers less harm to man or the environ-ment than other practical alternative methods of disposal.
- 6. 10 C.F.R. I 20.304 USE argues that the Commission's Statement of Consideration on the deletion of 10 C.F.R. I 20.304 supports its argument that buried ma-a terial is not possessed. See Motion at 21-22. USE seems to think that because the Commission stated that the deletion of Section 20.304 would -
not require any action concerning material already buried under the present provisionc of 5 20.304, the Commission viewed material buried under I 20.304 as not possessed. However, USE's conclusion is not cor-rect. Only persons holding a specific license were authorized to bury material under the general license of I 20.304. Therefore, it was the specific license that affected the licensee's authorization to possess, not 5 20.304. The Staff has never taken the position that burial under the general license of I 20.304 relieved the burier of his license obligations under the specific license that he held.
- 7. The Illinois Radioactive Wastes Act and USE's Lease USE cites Section 6 of the Illinois Radioactive Wastes Act,111.
Ann. Stat, S.H. A. ch, Illi, t 230 (Smith !!urd 1980), the provisions of I
l
which were incorporated in the Sheffield lease, for the proposition that it is Illinois not USE that possesses the wastes buried at Sheffield. EI However, Section 6, like Dr. Yoder's letter interpreting it, E concerns ownership, not possession. The Appeal Board's decision in Sterling, su-pra, makes clear that ownership and possession are not synonymous.
USE states thct neither the Staff nor the State can seriously maintain that NECO (USE) remained in possession of waste whose legal title passed to the State even prior to burial. Sections 31.9, 40.21 and 70.20 of the Commit tlon's regulations state that one may receive title to and own byproduct, source and special nuclear material without regard to quantity with only a general license. However, a specific licensee is required to 17/ Section 6 of the Illinois Radioactive Wastes Act reads as follows:
It is recognized by the General Assembly that any site used for the concentration and storage of ra-dioactive waste material will represent a continuing and perpetual responsibility in the interests of the public health, safety and general welfare, and that the same must ultimately be reposed in a sovereign government without regard for the existence or non-existence of any particular agency, instrumen-tality, department, division or officer thereof. In all instances lands , buildings and grounds which are to be designated as sites for the concentration and storage of radioactive waste materials shall be sequired in fee simple absolute and dedicated in perpetuity to such purpose. All rights, title and interest in, of and to any radioactive waste materi-als accepted by the Department of Public Health for permanent storage at such facilities , shall upon acceptance become the property of the State and shall be in all respects administered, controlled, and disposed of, including transfer by sale, lease, loan or otherwise, by the Department of Public Health in the name of the State.
The Staff has provided a copy of thh Act for the Board's convenience, l
g/ Dr. Yoder's letter is attached to USE's motion as Exhibit 21.
acquire, deliver, receive, possess, use, transfer, import or export spe-cial nuclear material. See, Sterling, ALAB-507, supra. Thus, the Staff does in fact maintain that even if Illinois owns the material buried at Sheffield as USE contends, it does not possess it as it lacks a specific license. EI B. U.S. Ecology has not terminated and may not unilaterally terminate its license; its license continues in force pending Cmmission action on USE's applicatfon.
U.S. Ecology states that it terminated its License No. 13-10042-01 for activitics at Sheffield by notification to the NRC dated March 8,1979.
It argues that the Staff's position that USE did not have the right to terminate unilaterally by notification without affirmative action on the part of the NRC is not supported by any provision of the AEA, applicable NRC regulations or the terms of the license itself. Motion at 30-31. USE states that until after flarch 8,1979, the date on which it sought to ter-minate, termination was assumed by AEC/NRC if the agency did not hear from a licensee regarding renewal. It also suggests that the Staff is at-tempting to apply the requirements of Part 61 to the termination of USE's Sheffield license despite Part 61's pest-dating USE's " termination." Mo-tion at 31-33. However, even though Part 61 is applicable by its terms on a case-by-case basis to licenses in effect on the date that Part 61 be-came effective, January 26, 1986, the Staff has not attempted to impose the terms of that Part on USE but rather limited its enforcement case against USE to the fifteen conditions filed by the Staff with the Board in July, 1980. USE states that the AEC/NRC allowed licenses to terminate
-19/ Tbc Staff does not maintain that the question of ownership may not be significant in the contractual relationship between Illinois and USE. Ilowever, that matter is beyond the scope of the two issues identified by the Board as amenable to summary disposition.
when the persons who Ield them failed to contact the agency concerning renewal. See, Motion at 31. Although USE is correct regarding the con-ditions under which the Commission permitted some licensees to terminate, USE has ignored the fact that even prior to USE's Plarch 8,1979 action, the Commission had launched an effort to identify former licensees whose sites might threaten the public health and safety.
- 1. NRC's Effort Regarding Terminated Source Material Licenses The URC's effort regarding terminated source material licenses is reflected in a letter of October 15, 1976 from the NRC's Executive Di-rector for Operations, Lee V. Gossick to Monte Canfield, Director of the Energy rind Minerals Division , U.S. General Accounting Office.
Mr. Gossick states:
It is the current NRC practice, and it was the practice of the AEC Regulatory staff previously, to evaluate each licensed activity at the time of license expiration or ter-mination to determine whether decontamination of facili-ties crd equipmerit by the licensee and close-out inspection by the Regulatory staff was necessary.
These determinations were based on the type, form and amount of material authorized , and the nature of the activity conducted. For example , activities involving scaled sources of radioactivity or short half-life radioac-tive materials, where there was little possibility of a contamination problem, were not of concern in this re-gard. However, attention was directed to those activi-ties which involved the processing or use of radioactive material in unsealed form where it was likely that con-tamination of equipment and facilities could occur.
l As you point out in your letter, the documentation for determining that facilities were decontaminated (up to the early '60's) was not as complete as we now require.
(Emphasis added).
The NRC contracted with the Oak Ridge National I.aboratory (ORNL) to evaluate terminated source material licenses from NRC's docket files with respect to potential for residual radiological health problems.
l
__ - . _ = - - . . . - - _ - . - - . . - . _ _
- i. i ORNL evaluated some 8,275 docket files in the course of this effort, i which is described in NUREC/r'9-1016 (January,1980).
A number of former licensees whose licenses had terminated volunteered to clean up the sites where they had conducted their licensed l activities. See, e.g. letter of June 10, 1981, from E. R. Brigham, Presi-
, dent Amax Environmental Services, Inc. to William Crow, NMSS, NRC, which is attached to this response. In addition, at 1 cast one of the let-ters to former licensees reveals that applications for termination were not i
totally foreign to the NFC prior to March 8, 1979. In a letter to the Cotter Corporation concerning the Latty Avenue Site where it had con-i ducted licensed activities, Richard Cunningham, Acting Director, Division of Fuel Cycle and Material Safety, NMSS NRC, stated:
t As you are aware, the NRC conducted a radiation survey at the Latty Avenue Site in Hazelwood, Missouri, where Cotter Corporation previously stored and processed i source material under Source Material License No.
I SUB-1022. Our survey has raised a serious question as j to whether statements Cotter Corporation made in its
- application for termination of its license, with regard to i contamination levels and removal of all licensable materi- L
! als, were correct and, hence, whether the Commission's
! action terminating your license was founded on accurate j representations by you.
i
- Tbc Commission has requested that the Energy Research
- and Development Administration perform a more detailed i survey of this site. At the conclusion of this survey I and an evaluatlo
- required action. gthereof, you will be advised of any j Thus, it is clear not only that information was required of licensees ap-I plying to terminate but also that the NRC asserts continuing authority j over former licensees whose license terminations may have been based on i
! incorrect information. USE is mistaken in representing that it was its i
2_0 0 / The letter is attached to this response.
f i
-__-_._---...---m,, _ _ _ _ , -m. ,- , , .. ._..,,__,_-__.m -.m. , , - - - - . - , . . - . - - _ - . ..,.---,.-_-m- - - - -
. attempt 'to terminate its license unilaterally that resulted in a whole new regime regarding terminations. The record cited above reflects the Com-mission's growing awareness and growing concern regarding license termi-nations. Further, it demonstrates that the effort was well underway before UFE notified the NRC on March 8,1979, that it was terminating its license.
- 2. USE's License for its llanford Facility UFE states that NECO received a letter from R. Dale Smith, Chief, Low-Level Waste Licensing Branch, regarding its license for its Hanford , Vashington facility, b Motion at 34. USE relles on a statement made there, "If we do not receive your renewal application by June 29, 1979, we will assume you do not wish to renew this part of the present License 13-10042-01," for the proposition that even after the evento of March 8,1979, the Staff acknowledged that " continuation of the license and disposal activities at llanford was at the option of the licens-ec." Id. Ilowever, the letter does not relate to disposal activities but to receipt and possession of scaled packages of source, byproduct, and SNM in non-Agreement States. Thc Staff's statement that it would assume USE did not wish to review its license if a renewal application 'vas not re-ceived by a specified date referred only to these non-disposal activities.
i
- 3. The Commission's Regulations Concerning Termination I
USE etates that it was not until after NECO's termination notiff-cation on March 8,1979, that the Commission adopted specific changes in Parts 30, 40 and 70 to require a materials lleense to " notify the f
Commission in writing when the licensee decides to permanently discon-31/1 The letter is attached to USE's motion as Exhibit 23.
j
-,,,___r-, , . - , - , , _ , _ . _ . - . _
_ = . .
. 1 tinue all activities involving ciaterials authorized under the license." Mo-tion at 31. USE's statement is in part correct; the regulations in 10 C.F.R. Il 30.34(f), 40.41(f) and 70.32(h) were adopted on March 22, i
1979 and became effective June 5,1970. 44 Fed. Reg. 17479. 13cwever, the proposed amendment was published for comment on July 27, 1978 (43 Fed. Reg. 32431), almost a year before the events of March 8, 1979.
More importantly, that regulation is no longer in force but has been su-perseded by 10 C.F.R. $$ 30.36, 40,42 and 70.38, published July 15, i 10P3 (48 Fed. Reg. 32324). In the Statement of Consideration of the adoption of 10 C.F.R. II 30.36, 40.42 cnd 70.38, the Commission stated:
- Previously, the Commission's reFulations required licens-ees under 10 C.F.R. Parts 30, 40 and 70 to notify the i
Commission in writing when the licensee decided to ter-2 minate operations. The requirement is contained in the final rule. Licensees were not required by regulation to describe the disposition of nuclect materials authorized under the license or to characterire radiological condi-tions at the time of license termination. The Commission has requested information concerning disposition of nu-clear materials and decontamination on an individual-case-basis. Information concerning residual radioactive j contamination has been requested only where it was sus-pected of being a problem. The rule is necessary to establish clear procedures for termination of licenses and to establish a more coherent regulatory framework. It will enable the Con. mission to determine that there is no significant risk to public health and safety before a 11-censee's responsibility for nuclear materials is terminated. ...
The rulo requires each licensee who does not apply for l license renown 1 to submit approprieto information concerning the disposal of licensed nuclear materials and on the absence or presence of residual radioactive con-tamination. If radioactive levels are suitable for release, the Commission will notify the licensee, in writing, that the license is terminated. If significant residual radioac-tive contamination is detected, the license continues in force, beyond the expiration date if necessary, with respect to possession of and responsibility for the resid-ual radioactive contamination. The licensee must contin-uc decontamination and control of contaminated areas J until radiation levels are suitable for release and the i Commission notifies the licensee, in writing, that the license is terminated. In addition , the licensee must 1
-- ~ . _ _ - , , . . _ . _..._ _ _ _ _ . _ . . . _ _ . _ . _ - _ _ _ . . . _ _ . _ _ _ __
submit a plan for decontamination and a final radiation survey report.
In answer to a comment concerning the applicability of the rule to licensees who had submitted requests for decommissioning or termina-tion prior to the promulgation of the rule, the Commission responded:
These amendments will codify procedures that are cur-rently being used on an individual-case-basis. This rule does not significantly alter existing procedures. ...
The provisions of the rule are applicable to any licensee who decides to terminate a license after [the effective date of the rule, July 15, 1983).
The Staff believes that because the rule does not alter c:dsting procedures, it is applicable to USE and that it was the Commission's in-tention in promulgating the rule to include licensees like USE in its applicability.
Without regard to whether or not USE sought license renewal, it has the materials and must have a license for them under the law until relieved of that responsibility by the NRC. USE cannot terminate its license by withdrawing its application for renewal, as it would then be in possession of the materials in violation of law. This Licensing Board could not sanction such n violation in the exercise of its discretion under 10 C.F.R. I 2.107(a). Before any license withdrawal, steps must be tak-en to assure that the public health and safety are protected. Such actions might include the approval of a transferee to receive the material or possibly the exemption of the material upon a finding that there can be no " credible possible contamination of the ground, water or air." Walker Trucking Co.,1 AEC 068 (1961); see also Industrial Waste Disposal Corp.
1 AEC 399, 401 (1960). Ilowever, absent such a determination USE re-mains responsible for the waste it has buried and must have a license.
USE cannot unilaterally find itself to be in compliance with the license and therefore of itself conclude that there is no threat to the public health and safety in its abandonment of the Sheffield site. It is the responsibility of the NRC to determine if license conditions and regu-lations are met and whether a license may be terminated. USE's renunci-ation of its lease with Illinois cannot affect its obligations regarding the material buried under its license. The Commission's regulations provide that a license for nuclear materials may not be " transferred, assigned or in any manner disposed of, either voluntarily or involuntarily, directly or indirectly" except with the approval of the Commission. 10 C.F.R.
Il 30.34(b), 40.46 and 70.36. No material may be transferred unless the transferor first verifles that the transferee has a license or other Federal authority permitting it to receive the material. 10 C.F.R. 55 30.41(c),
40.51(c), 50.42(c); Nuclear Advisors Inc. , supra. No State or other person can receive or possess riaterials vrfthout authorization of the Com-mission. 10 C.F.R. 55 30.3, 40.3 and 70.3. USE's purported transfer of the buried materials to Illinois by renunciation of the lease does not re-licyc it of possession or responsibility for the meterial. Illinois is not a licensed recipient of the materials, and thus;USE cannot transfer the ma-terials or responsibility for the materials to the State.
The foregoing does not mean that USE is bound forever to its NRC license. What it does mean is that suitable arrangements must be made, subject ,to NRC approval, for termination of the license on findings that such action and the conditions would be consistent with the public health and safety. This could be done, among other ways, by transfer of the material to another NRC licensee, such as a state, should it be licensed, or by granting an exemption on a finding that the site, after
)
proper treatment, may hold the buried materials without any undue risk to the health and safety of the public. AEA il 57, 62 and 81.
USE argues that Section 9(b) of the APA was intended as a sideld for the regulated and not as a sword for the regulator. Motion at 35-46. Ilowever, the Staff need not and does not rely on Section 9(b) for its argument thet USE is responsible for the material buried at Sheffield, and therefore, does not address USE's argument in which it relies on cases decided under the A.P. A. The Staff's position is based on health and safety considerations and is, thus, distinguishchle from the A.P. A. line of cases relied on by USE. As discussed above, the Staff's bacis for asserting that USE has a continuing responsibility for the site does not rest on its timely application to renew.
IV. CONCLUSION For the reasons discussed, the Licensing Board should find that USE possesses the material buried at Sheffield and that it lacks the right to terminate its license unilaterally without affirmative action by the NRC.
The Licensing Board should deny U.S. Ecology's motion.
Respectfu1ly submitted, W .
O Ann P. Hodgdon Counsel for NRC Staff Dated at Bethesda,l.1aryland this 10th day of November,1986
l l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DEFORE Tile A"'OMIC SAFETY AND LICENSING BOARD In the Matter of )
)
U.S. ECOLOGY, INC. ) Docket No. 27-39
)
(Sheffield, Illinois Low-Level )
Radioactive Uaste Disposal Site) )
NRC STAFF'S RESPONSE TO USE'S STATEMENT OF MATERIAL FACTS AS TO WHICII THERE IS NO GENUINE ISSUE TO BE HEARD In its Statement of Material Facts as to Which There Is No Genuine Issue to Be Heard, U.S. Ecology (USF) stated that the position it argues in its motion is based on Commission policy and that, accordingly, the only material fact on which it seeks a Licensing Board determination is the authenticity of its supporting documents , Exhibits 1 through 65.
The NRC staff does not contest the authenticity of any NRC docu-ments offered as exhibits.
Respectful 1y suhnitted, j M ,
' k l Ann P. Hoogtfon Cotmsel for 13E Staff T'ated at Bethesda, Maryland this 10th day of Novmber,1986 i
j - >>J)
( ( { }0 I 9( bD
- e STATE OF IILINOIS .
DEPARDEI 0F FUBLIC HiMLTH Division of Sanitary Dgineering RADICACTIVE WASTES ACT An Act to authcrize the Director of Public Health to purchase, lease, accept or acquire suitable sitee for the concentration and storage of radioactive wastes, to provide for cupervision cf the operation of such ,
sites and to authorize,the Department of Public Hmith to prepare end to !
enforce reg 11ations pertaining to the use and operation of such sites. Ap- !
proved I.ucust 16, 1963.
Be it enacted by the Peop3m of the State of T114nois, repreemteh in the Gmeral Assembly:
Section 1. The Dirwetor af Public Health is authorized to acquire by private purdiase, acceptance, or by condecnation under tim; B::inent Domain Act, eny and all lands, bui1rtings and grourris W1ere radioactive by-preducts and wastes produced by industrial, medical, a5ricultural, sof.entific or other organizations can be concetrated, stored or otherwise dispoded in a manner censistent with the public health and eafety.
Section 2. Tim Director of Public Health may accept, receive and l receiptbr moneys or lands, buildings and grounds for and in behalf of the State, given by the Federal Gorertinent urrier my federal law to the State or by any other public or private agecy, for the acquisition or operation of a site or sites for the concentration and. storage of radioactive wastes. Such furxis recetved by the Director pursuant to this soction shall be deposited with the State Treasurer and held and disbursed by him in aco:rrdance with "An Act in relation to the reestpt, custody, and disbursement of nonqr allotted by the Uhited States of 1.merica or any agmey thereof for use in this State",
approved July 3,1939,. as amended. Provided that such moneys or lands, build-ings, and grounds shall be used only for the purposes for which they are cat-tributed.
Section 3 The Director af Public Health mar lease such lands, build-ings and Srcunds as it may acquire urrier the provisio:n of this Act to a private fim or firms for the purpcoe.cf-operatin6 a site or sites for the conc <ritration and storage of radioactive wastes or for such other parpose not contrary to p2e public interests.
Section 4. The operation of any and all sites acqpired for the con-centration and storage of radioactive wastes sinll be urrier the direct supar-vision of the Department of Public Health g sin 11 be in accord 5nc~e~wfth ~
s' 1
Itadioactive llastes Act (August 16,1%3) Page 2 regulations emicated and enforced by tho Departemt to protect the public health and sa 7 Sectim 5. The Director of Public Esalth is authdrized to enter into contracts as he may deem necessary for carrying cut the provisions of this Act.
Section 6. 4t is recognized by the Geeral Assably that any site used for the concentration and storage of radicactive waste material will represent a continuing and perpetual responsibility in the interests of the public hsalth, safety and general welfare, and that the sans must ultimately be reposed in a sovereign government without regard for the existece or nor>
existence of any particular agecy, instrumentality, department, division or officer thereof. In all instances Innds, buildings and grounds which are to be designated as sites for the concentration and storage of radioactive waste .
materials shall be acquired in fee simple absolute and dedicated in perpetuity to such purpose. All rights, title and interest in, of and to any radicactive mate natorials accepted by the Departamt af Public Health for pamanent storage at such facilities, shall upon acceptance become the propetty of the State and shall be in all respects adninistered, controlled, and disposed of, including transfer by sale, lease, loan or otherwise, by the De;nrtnant of Public Health in the name of the State.
I t
e
/
1 I
^~~ ~' ,. -
f* % NUCLEAR REGUL.ATORY COMMrsstort WASHIN *. TEN, C. C. 20553 - l El y C 3- I
>=
- l..,
%+ ,,, .
j OCT 151976 L.......
."" Mr. Monte Canfield, Jr.
~.T Director d.i Energy and Minerals Division-a; United States General Accounting Office Washington, D. C. 20548 b
Dear Mr. Canfield:
[.55 This refers to your letter of September 17, 1976, to Chair =an Rowden -
5 concerning your survey of Federal Programs for disposition of obsolete d2 and unused nuclear facilities. Our reply, of course, will be concerned E: only with those activities which are subject to licensing by NRC or its 2- predecessor AEC.
, z..'
- r:
It is the current NRC' practice, and'it was. the practice of the AEC
[." ' Regulatory staff previously, to evaluate each licensed activity at the '.' '
E" time of license expira, tion or termination to determine whether decon-L- tamination of facilities and equipment by the licensee and close-cut inspection by the Regulatory staff was necessary. These detem4 nations were based on the type, fem and a=ount of material aufhorized, and the nature of the activity conducted. For example, activities involving E,. sealed sources of radioactivity or short. half-life rydioactive materials, 6:/ where there was little possibility of a contamination problem, were not
~~" of concern in this regard. However, attention was directed to those
- 2- activities which involved the processing or use of radioactive material E.. in unsealed form where it was 'likely that contamination of equipment .
((( and facilities could occur.
- As you point out in your letter, the docu=entation for dete mining E::
-r that facilities were decontaminated (up to the early '60's) was.not E:: as complete as we now require.
Jh Nevertheless,, we believe that there are no residual contamination E.'. problems of significance from a public health and safety standpoint 9" at sites that were operated pursuant to AEC or NRC licenses. ,
..h..
m..
a,
{l-. ?,
= . . . .
.e.e**
l5:. . ,
p I
F
4 '1 . ,, ,
[.%4 . *.: ' .['
3 ., # .'* *- .
p-
%,Q .;. * , t .O
'g.j*. * ..
os , -- * - 2-r; d' Mr. Monte Canficid, Jr.
E
$y1.. :, -
V. .
G.:y.4; I:I ~
iij,_.{e ,
However, we plan to reexamine our files of licenses teminated prior to 1965, of which there are a considerable nu:nber, ever the next =cicrsi ...
. . ".L.t, e
'~!~
[ months to determine health and safety problem if there might existare any licensed at a for;ter casesactivity.
whereWea significant p will take appropriate action as necessary.
.h.i..f s . -i ' .
We will keep you informed of t}ie results of this exam ination.
,,2 .
&?'* ,
Sincerely, Ir ?,.' ., . 6
..t ;. .
6 . (3;gned) Lee V. Cetti: !-
/S,*,'y;~
72 . ' ., Lee V. Gossick
~
.'Y; ; Executive Director for Operations
$[f.? i.
G G
yegygg, L - h c z) g 3 5 5 ENVIRONMENTAL SERVICES, INC. 2-)-
0 % 3 ~... .. A SUBSIDIARY OF AMAX INC.
- {
Ac6cn Compl) -[ .
June 10, 1981
-; , p %'s --
S . .c i- P .I a; 0 r-U.S. Nuclear Regulatory ' Commission 9 ..[;t..bh Nuclear Materials Safety 8 q., c i c I., * ;
W i , - -
and Safeguards b.
7920 Norfolk Avenue $ $ b 0gyo" -
N Bethesda, MD 20014 09
- JOL -11
~
f 4
- l Attention: Mr. William Crow 4 5-
- psY d' .
Gentlemen: Cv
/ -
y Enclosed is an Application for Source Material Lice M, submitted on behalf of AMAX Inc. As discussed with U representatives of the Materials Safety and Safeguards. Division at a meeting in the Bethesda, Maryland office on March 29, 1981, this is an application for a license for interim safp storage of low-level radioactive contaminated soil located at a site owned by AMAX Inc. near Parkersburg, West Virginia.
The application for interim safe storage license is being made by AMAX Inc. as part of an on-going voluntary effort to clean-up the Parkersburg site .- By applying for the interim safe storage license, AMAX does not waive any right t;,o contest the
- jurisdiction of the Nuclear Regulatory Commission to require the l decontamination or clean-up of the Parkersburg site. In this regard, AMAX reserves the right to withdraw the enclosed application if it elects to do so at some future time.
Most of the information requested on the application form is inapplicable or is not suited to the Parkersburg situation. We I
have enclosed copies of the Stabilization Plan prepared by AMAX 1
and its consultants for consolidating and stabilizing the low-level radioactive contaminated soil at the Parkersburg site.
We believe that the Stabilization Plan contains the information necessary to issue the license for interim safe storage and should be reviewed as part of the Application for Source Material License.
l AMAX is interested in obta!aing the license for interim safe I
storage as soon as possible in order to perform the work described in the Stabilization Plan during this construction season.. AMAX uould need to obtain the license or authorization to proceed with construction no later than September 1, 1981 in order to complete the stabilization work at the Parkersburg site in 1981. It is our understanding that the environmental assessment report required for issuance of this license can be completed and the authori-zation for construction can be given by the NRC prior to September 1, 1981.
19355*
osfZ#elfBwhn01ctca@fmmf82 K@@MgM@_
r o
? .
AMAX is designated continuing its efforts to have the Parkersburg site as a remedial action site under the " Residual Radioactive Material Con ~ trol Act" that has been prepared by the Department . of Energy. This legislation would, authorize, the Secretary of the Department of Energy to designate remedial action sites containing residual radioactive material and reimburse the-owner for the designated actual cost of remedial ' action undertaken at a site. In addition, this legislation would authorize the Secretary to . acquire a designated remedial action site used for the disposal and control of residual radioactive material.
The status of this legislation is uncertain; however, it is hoped that -the Residual introduced Radioactive in Congress Ma terial. . Control Act will be this year and ena'cted before Congress adjourns in 1982.
I hope that the Application for Source Material license, the accompanying Stabilization Plan, and other information previously submitted to the Nuclear Regulatory Commission provides you all of the information necessary to grant a lisence to AMAX for interim safe storage of residual radioactive material at the site near Parkersburg, West Virginia. If you have any questions regarding this matter or desire further information, please contact me or Peter Keppler or Jim Kerrigan of my staff.
- Yours very truly, E. R. i ham President ERB:PK:mpa
t- C , C :
_ DISTRIBUTION:
Docket No. 40-8035 NMSS:R/F FCPF:R/F WTCrow FCPF:IRC L 1 2 1977 f ouse J8 Martin 40-8035 RECunningham 508-1022 ELD, JLieberman I&E, GHSmith IE HQ (2)
POR -
Cotter Corporation LPOR ATTN: Mr. David P. Marcott SH0 -
Executive Vice President P. O. Box 356 .
Golden, Colorado 30401 Gentlemen:
As you are aware, the URC conducted a radiation survey at the Latty
- Avenue Sito in Hazelwood, Missouri, where Cotter Corporation previously stored and processed source naterial under Source Material License No. SUB-1022. Our survey has raised a serious question as to whether statements Cotter Corporation made in its application for termination of its license, with regard to contamination levels and emoval of all licensable materials, were correct and, hence, whether the Commission'.s by you.terminating your license was founded on accurate representations action 2 The Connission has requested that the Energy Research and Develo;=ent Administration perform a more detailed survey of this site. At the conclusion of this survey and an evaluation thereof, you will be advised of any required action.
Should you have any questions regarding this matter, please contact Mr. it. T. Crow of my staff {301-427-4103).
Sincerely,
' Original Sign &d Syf Richard E. Cunn!ntham Richard E. Cunningham Acting Director Division of Fuel Cycle and Material Safety cc: See attached list l
i
( (
D_ISTRIBUTION:
. Docket No. 40-8035 NMSS:R/F FCPF:R/F A ' . :177 WTCrow g Rouse JBMartin RECunningham DOCKET NO.: 40-8035 h' h LICBISEE: Cotter Corporation " (}
kR .
FACILITY: LattyAvenueSite,Hazelwood,MissouYiOR SHO SUSJECT:
LElTER TO COTTER CORPORATION RELATED TO NRC AND ERDA RADIATION SURVEYS AT THE LATTY AVENUE SITE
_ Background On November 13, 1974, in response to an application from Cotter Corporation.
l dated May 10, 1974 Source Material License No. SUB-1022 was terminated.
The application was accompanied by a radiation survey and a certificate indicating that all source material had been or would be disposed of in accordance with applicable regulations (copy attached). Region III of Inspection and Enforcement, by phone, stated they had no objection to the termination of this license; this was documented by a note to file" (copy attached). .
In response to a letter dated June 2,1976, from the M4s'souri Department g of Natural Resources regarding sare newspaper articles containing allega-tions concerning the inproper disposal of uranium ore residues, Region III initiated an investigation. Although the allegations by the state were i
related to the disposal of residues by off-site land burial, Regicn III
!- included the Latty Avenue site :n their investigation. A preliminary radiation survey at the Lattj Avenue site indicated levels of radiation exceeding the criteria establis.%d by HRC for decontamination of land areas prior to release for unrutricted use.
_0tscussion In June of 1977, at the request of HRC, ERDA (0PJ'L) started a detailed radiation survey of the Latty Avenue site to detemine the magnitude and extent of contamination. Althougn this survey is still in the early l stages, ERDA has found a drum that was partially hidden in a remote corner of the field that contains licensable quantities of natorial and indications that radon concentrations in some of the buildings may be above currently accepted limits.
i Because of this, a meeting was heldamong ELD, I&E, and NMSS staff members on June'30, 1977; and it was decided to send the orrece >
evansee s >
oave h NRC FORM 51a (9.74 Name man O===aa=**=-*=======aa***ee****-***e**
l.. _
( .
2 attached letter to Cotter Corporation alerting them to a possible problen and affording them the opportunity to investigate possible remedial actions prior to any enforcement actions by tiRC.
0.-! inM 3!_ ::d by W. T. Crow Fuel Processing & Fabrication Branch Division of Fuel Cycle and Material Safety i@Ei
, 7/7/77
. .. . e FCPF p y p*
........ WTCrow:ng
. .u
- 7/// /77 NRC FORM sin 89.744 Nat as n,4n 4 ,, , _ __
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SA"ETY AND LICENSING BOARD In the Matter of )
)
US ECOLOGY, INC. ) Docket No. 27-39
)
(Sheffield, Illinois Low-Level )
Radioactive Waste Disposal Site) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE IN OPPOSITION TO U.S. ECOLOGY'S MOTION FOR
SUMMARY
DISPOSITION", "NRC STAFF'S RESPONSE TO USE' STATEMENT OF MATERIAL FACTS AS TO WHICII TIIERE IS NO GENUINE ISSUE TO BE HEARD" and " NOTICE OF APPEARANCE" (for Ann P. Hodgdon) in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 12th day of November, 1986:
B. Paul Cotter, Esq. , Chairman James R. May, Esq.
Administrative Judge State's Attorney Atomic Safety and Licensing Board Bureau County Court House U.S. Nuclear Regulatory Commission Princeton, IL 61350 Washington , D.C. 20555*
Jerry R. Kline Henry L. Henderson, Esq.
Administrative Judge Asst. Attorney General Atomic Safety and Licensing Board Environmental Control Division U.S. Nuclear Regulatory Commission 13th Floor Washington, D.C. 20555* 100 West Randolph Street Chicago, IL 60601 Dr. Emmeth A. Leubke Administrative Judge Atomic Safety and Licensing Board l
U.S. Nuclear Regulatory Commission John M. Cannon, Esq.
Washington, D.C. 20555* Mid-America Legal Foundation Suite 842 Docketing and Service Section 20 North Wncker Drive Office of the Secretary Chicago, IL 60606 U.S. Nuclear Regulatory Commission Washington, D.C. 20555*
l l
D. J. McRae, Esq. Robert Russell, Esq.
217 West Second Street Johnson, Martin & Russell I*cwaunee, IL 61443 10 Park Avenue West Princeton, IL 61356 Pfark J. Wetterhahn, Esq. f.fr. Charles F. Eason, Esq.
Robert Rader, Esq. American Ecology, Inc.
Conner and Wetterhahn Director for Governmental Affairs 1747 Pennsylvania Avenue, N.W. 1501 Wilson Boulevard Suite 1050 Suite 900 Washington, D.C. 20006 Arlington, Virginia 22209 R. Lee Armbruster, Esq. Atomic Safety and Licensing General Counsel Board Panel U. S. Ecology, Inc. U.S. Nuclear Regulatory Commission P.O. Box 7246 Washington, D.C. 20555*
I < isville, KY 40207 Terry Lash Atomic Safety and Licensing Director, Dept. of Nuclear Safety Appeal Board 1035 Outer Park Drive U.S. Nuclear Regulatory Commission Springfield, IL 62704 Washington, D.C. 20555*
Chief Legal Counsel Susan B. Harmon, Esq.
Department of Nuclear Safety Burke , osselman and Weaver 1035 Outer Park Drive Xerox Centre - 55 West ffonroe Springfield, IL 62704 Chicago, IL 60603 Pfarc Bernabei, Esq.
State's Attorney Office of the State's Attorney Bureau County Courthouse Princeton, IL 61356 W ,
O A Ann P Hodgdon Onunsel for l'RC Staff