ML20199D591
| ML20199D591 | |
| Person / Time | |
|---|---|
| Issue date: | 12/19/1997 |
| From: | Reamer C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Ferraro D AFFILIATION NOT ASSIGNED |
| Shared Package | |
| ML20199D099 | List: |
| References | |
| FOIA-97-496 NUDOCS 9801300246 | |
| Download: ML20199D591 (4) | |
Text
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NUCLEAR REGULATORY COMMISSION
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WASHINGTON. D C. 20656-0001 December 19,1997 OFFICE oF THE cENERAL counsel Donald P. Ferraro, Esq.
Egan & Associates, P.C.
2300 N Street, N.W.
Washington, D.C. 20037
Dear Mr. Ferraro:
This is in response to your letter dated October 27,1997, regarding questions concerning the Nuclear Regulatory Commission's (NRC's) Final Staff Technical Position (STP), entitled
' Disposition of Cesium-137 Contaminated Emission Control Dust and Other incident-Related Material."
At the outset, we note that the Commission's regulations authorize the General Counsel to issue formal, written interpretations which are recognized as binding on the Commission.
However, the General Counsel exercises this authority very sparingly and only in instances involving major policy or legal questions. Accordingly, any views or information in this letter do not constitute a formalinterpretation. We also note the recent petition on behalf of Waste Control Specialists, LLC, requesting the State of Texas to adopt rules in response to and in accordance with the STP We therefore trust that you will understand that nothing in this letter should be interpreted as a comment on any aspect of the petition. Further, it is our intention that this letter not affect the State's consideration of, or its authority to respond to, any issue raised by the petition, as the State deems appropriate.
Your letter poses several questions regarding the implementation of the STP, and we have tried to address each question below. 'f, despite our efforts, we fail to respond speifically with respect to some aspect of your letter, our silence should not be taken as an indication that we either agree or disagree with your position in that regard.
First, you state that the STP is " permissive," in that it leaves the decision of whether the Cesium-137 ("7Cs) contaminated emission control dust is classified as " radioactive waste" up to the appropriate state regulatory authorities. The STP addresses the management of" incident-related material" which includes the emission control du:t as well as related cleanup materials and downstream recycle process streams containing "7Cs. As discussed in the response to comments in the Federal Reaister notice on the final STP (62 FR 131176,13195), the use of the term ' incident-related material" was based not on legal considerations but, rather, on the best way to characterize the waste in a technical position whose principal purpose was to demonstrate, through a conservative assessment, the minimal radiological significance of appropriate disposal of the materialin accordance with the STP. The STP is a non-binding technical document to be used as a framework by NRC staff for the review and approval of requests by NRC licensees to dispose of licensed material in an unlicensed facility in accordance with NRC regulations at 10 CFR 20.2002. As set forth below, the STP recognizes that other authorizing parties must be consulted and all necessary approvals must be obtained, including those of the appropriate State regulatory authorities and the disposal facility operator.
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However, the STP does not address whether Texas or Agreement States have the authority to decide whether to classify "'Cs contaminated emission control dust as radioactive waste.
Consequently, the STP does not suggest how Texas should implement its authority, as an Agreement State, to regulate the disposal of radioactive waste or to classify incident related materialin accordance with Texas law.
With respect to whether Texas may implement the guidance in the STP, the STP includes the following discussion (62 FR 13177):
It should be noted that additional acceptance requirements, beyond those covered in this NRC positioa for disposal of "'Cs-contaminated incident related waste at a Subtitle C RCRA-permitted disposal facility, may be established by:
(1) an Agreement State; (2) the permit conditions or policies of the RCRA-permitted disposal facility; (3) the regulatory requirements of the RCRA disposal facility's permitting agency; or (4) other authorized parties, inriuding State and local governments. These requirements may be more stringent than those covered in the guidance described in this technical position. The licens"d entity transferring the "'Cs contaminated incident related materials must consult with these parties, and obtain all necessary approvals, in addition to those of NRC and/or appropriate Agreement States, for the transfers defined in this technical position. Nothing in this position shall be or is intended to be construed as a waiver of any RCRA permit condition or term, of any State or local statute or regulation, or of any Federal RCRA regulation. The position applies to both hazardous and non-hazardous incident-related waste as specifically defined. In addition, the conditions established in this position pertain to NRC staff and licensee actions. Therefore, in those instances where an Agreement State is the sole regulatory authority for the radioactive material, the Agreement State has the option of using this guidance in reviewing requests for the disposal of the material.
Your letter also raises the question of whether Texas can grant approval for the disposal of
"'Cs conts,minated emission control dust by rule or exemption, with the disposal approval being granted to the RCRA permittee rather than to the NRC or Agreement State licensee.
Although it does not dictate how (or whether) an Agreement State, such as Texas, must implement the guidance, the STP envisions that incident related material would, at least initially, be in the possession of an NRC or Agreement State licensee (i.e., the steel company or its service contractor) who would need the specific authorization of the regulatory authority (i.e.,
licensing action by NRC or an Agreement State, as appropriate) to transfer the material to the RCRA-permitted disposal facility (62 ER 13177). Further, the STP envisions that the regulatory authority would grant the authorization based on the licensee's fulfillment of certain conditions including treatment, storage and transfer of the materialin compliance with a radiation protection program that meets the requirements of 10 CFR 20.1101 (62 FR 13178,13179).
Thus, it is not clear to us from your letter whether the STP could be implemented as envisioned, if the licensee initially in posses,, ion is not authorized to transfer the material for disposal, and if the unlicensed Subtitle C facility operator is responsible for fulfillment of the conditions in the STP.
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3 The last question raised in your letter is whether there is any problem with Texas applying a one-curie limit on a per disposal cell basis. The technical assessment supporting the STP did not evaluate the one-curie iimit on a per disposal cell basis. Rather, the assessment evaluated only a one-curie limit at the entire facility,- The STP discusses the reasons for this constraint (e.g.,62 FR 13179 n.7). If NRC wished to approve disposal of incident-related material under the STP using a one-curie limit per disposal cell, it would need to supplement the technical basis for the STP to show that the impacts of such disposal were acceptable. However, because such a supplemental evaluation has not been done, we are not in a position to be able.
to comraent on the appropriateness of applying the one-curie limit on a per disposal cell basis.
We trust that we have addressed the questions posed by your letter in the foregoing discussion.
Sincerely OVi,V C. William Reamer Senior Attorney
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Aasen.Tsaas 7s7431sp 0 13) 4 4 7111 Radshes Cameret pl3) DHass Decesnher 22,1997 Michsel L. Woodward Hance, Scarborough, Woodward & Weisbart 111Congssa Avenue, Suite 800 Austin. Texas 78701 l
Dear Mr. Woodward:
This is to inform you of our intent to pursus rule develops.wn C
ill radiosenve sad hasardous waste at steel company siass. TM Buruun of Radiation Contro be using the U.S. NurJast Regulatory Camerusmon final staff technical position n of casium-137 contaminased emission control dust and other incid basis for our chhat.
The BRC plans to presers r JraA mis for discussion m the Regulamry Comnutise of Health (TBH) et ths asuninae meeting irt February,1998 Returer. Aner a 30 day coissamme period, the draft final rule is schak1174 to on May 15,199s for approval to publish as a Saal rule.
We will be glad to provide you with copies of the dra cratliff@bret tdh. state.tx.us.
- Sincerth, 74.h-
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'A November 14,.1997 MEMORANDUM TO:
Robert A. Nelson, Chief Low-Level Waste and Regulatory issues Section Low Level Waste and Decommissioning Projects Branch Division of Waste Management Office of Nuclear Material Safety and Safeguards FROM:
James E. Kennedy, Senior Project Manager [0riginal signed by]
Low-Level Waste and Regulatory issues Section Low-Level Waste and Decommissioning Projects Branch Division of Waste Managemeni Office of Nuclear Material Safety and Safeguards
SUBJECT:
REPORT OF MEETING WITH WASTE CONTROL SPECIALISTS, LLC On October 6,1997, U S. Nuclear Regulatory Commission staff met with representatives of Waste Control Specialists, LLC, (WCS), to discuss NRC's branch technical position on disposal of cesium contaminated baghouse dust. A report of this meeting is attached.
Attachment:
As stated CONTACT:
' James E. Kennedy (301)-415-6668 TlCKET NO.: NONE DISTRIBUTION:
Central File LLDP r/f JGreeves MFederline KStablein JHolonich NMSS r/f DWW MBell m' PLohaus SSalomon LBell THarris TCJohnson JHickey PUBLIC DOrlando Note A draft of this report was given to Egan and Associates for review. They had no comments.
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November 14. 1997 MEMORANDUM TO:
Robert A. Nelson, Chief Low-Level Waste and Regulatory 7
issues Section Low Level Waste anc Decommissioning Projects Branch Division of Waste Management Office of Nuclear Material Safeiy and Safegu6rds
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James E. Kennedy, Senior Project p r
Low-Level Waste and Regulatory issues Section Low-Level Waste and DecommissionJng Projects Branch Division of Waste Management Office of Nuciear Material Safety and Safeguards
SUBJECT:
REPORT OF MEETING WITH WASTE CONTROL SPECIALISTS, LLC On October 6,1997, U.S. Nuclear Regulatory Commission staff met with representatives of Waste Control Specialists, LLC, (WCS), to discuss NRC's branch technical position on disposal of cesium contaminated baghouse dust. A report of this meeting is attached.
Attachment:
As stated CONTACT:
James E. Kennedy (301)-415-6668
]
4 MEETING REPORT l
9 ate:
October 6,1997
)
i Time:
2:30 PM l
Pla:e:
U.S. NRC, Two White Fhnt North, Rockville, MD, Room T 8 C 1
Purpose:
To discuss NRC's Branch Technical Position on Baghouse Dust Contaminated with Cs *,
Attendees:
See Attachment 1 BEkQLQuut Representatives of WCS requested a mee'ing with the NRC staff to discuss the staff's Branch Technical Position on Cesium Contaminated Baghouse Dust. This Technical Position permits, under certain conditions, disposal of such dust in RCRA permitted disposal facihties. WCS currently has a RCRA permit for disposal of hazardous wastes, Qimulil0D:
1, A WCS representative reviewed the company's progress in obtaining regulatory approvals for haAardous and radioactive waste treatment, storage, and disposal, WCS currently has l
a permit for disposal of Resource Conservation and Recovery Act and Toxic Substances Control Act waste, issued by the Texas Department of Health; a permit for the disposal of certain concentrations of naturally occurnng radioactivewaste, issued by the Texas Natural Resources ConservationCommission, and a permit pending for the treatment, processing and storage of low level radioactive and mixed waste.
2.
Mr. Egan, representing WCS, reviewed the recent decision by the U.S. District Court for the -
t Northern District of Texas to issue a preliminary injunction that orders the Department of Energy to not deny any WCS bid or contract for DOE low-level or mixed radioactive wastes on certain grounds specified in the injunction. Mr. Egan provided a copy of the Court's Preliminary injunction to the staff (See Attachment 2).
3.
WCS is exploring #sposal of cesium centaminated baghouse dust at its facihty, in accordance with the provisions in the s'.aff branch technical position. One of the issues concerns the State of Texas law that requires that all LLW be disposed of in the deposal facihty being developed by the Texas Low-Level Radioactive Waste Disposal Authority.
Mr. Egan noted that the Authority has stated that it does not plan to dispose of muted waste at its facility, so WCS interest in this material does not intrude into Texas plans under the Low level Radioactive Wasta olicy Amendments Act. Two approaches for addressing c
this issue with the Texas law are possible-the first is for the Texas Department of Health to exempt this material from the Tenc requirement that it be disposed of in the Authority facihty, The second is that Texas promulgate a rule that such material need not be disposed of in the Authority disposalfacihty. WCS noted that one considerationin the first approach is NRC's views on whether such material (called " incident related material"In the Attachment
2 BTP) can be exempted from the definition of LLW, As noted below, WCS will consider sending a letter to NRC asking for NRC's views on whether Texas can exempt these materials from the definition of LLW.
4.
Nick Orlando of NRC staff revieweo some of the key provisions of the BTP on baghouse dust.
- 5.
WCS also discussedits considerationof disposalof PCB contaminated paint from nuclear power plants that are undergoing decommissioning. This paint is considered to be a mNed waste. WCS believes that such waste may be analogous to baghouse dust in that it may be suitable for disposalin e,1CRA permitted facili*y, ano asked NRC staffif a s'-ff position on such disposaicould be developed. NRC staff indicated that a formal requew. would have to be submitted and NRC would consider such a request based on the mesits.
Acil0DE:
As noted in item 3, WCS will consider sending a letter io NRC asking for NRC views on whether the State of Texas can exempt
- incident related materiar covered by the Baghouse Dust Branch Technical Position from its definition of low level radioactive waste. " Incident related materiar is defined in the BTP.
Attachments:
1 Meeting Attendees
- 2. Preliminary injunction dated October 3,1997,
- issued by the U.S. District Ccurt, Northern District of Texas (provided by Waste Ocntrol Specialists) hN-
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i MEETING ATTENDEES Datu; ')C N v
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IN THE UNITED STATES Di$TRICT COURT FOR THE NORTHERN Dl3IMICl' OF TIiXA5 WICHtTA PALLS OlVISION WASTE CONTROL SPECIALISTS, il C
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Plaintiff,
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UNITED STATES DEPARn4ENT
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0F ENERGY, ALVIN L ALM,
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Civil Action No. 7 97CV 202 X Assistant Secretary for Environmental
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Management, and MARY ANNE
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i SULLNAN, Deputy General Counsei
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for Environmerit utid Civdian
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Nuclear Defense Progtems,
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Defendants.
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PftEt iMIN ARY INJ12NCTIQN ins cause came before the Court on Plaint #s application for a preliminary 4
injunction in ts F tst Amendec Comptaint. filed pursuant to Rule 65 of the Federal Hu e; of Civil Prr ecure uit August 29 '997. The Court has considered such Amended Complaint. ma Affirtavit of Kenneth N Eigham acd Veri'ication of First Amenced Complant, the Affidavit of Elayne Copage, tiie Brief in Suoport of Plaint #5 " si-Amencea Comp aint Defendants' Respomw iri Oppositico to Pfarntiffs Application for Preilminary inaunction and Bnef in supped tharanf Plaintes opposition to Defendants' Motion to Dismiss and Response in Oppesation to Plaintiffs Application for Preliminary in, unction, and the evidence, testimony and arguments of counset offered at the hearirig on Soolember 30,1997. Having done so, the Coud entes the find'nce anti nrsiar Ant for.h emana e.
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. ire mnnd questtannt nf law and fact Mie 7W/ Mo.Marfe.Aly C.n mad, /nc _ Bfl4 F ' d 1253
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1256 (5th Cir.1989)
Accord.ngly, many o' the findings and conclusions might be categorized under ettner neading Additional teasens for the Court's f ndir0g anti rnndutions warn statori on the record at the evidertlar, siearing. The placti#s presented two expert witnesses whom the Coun found to oe highly c'ertible Toge'fier they have seventy plus years of espeileriw in this field 'he maprity of this experience is neerlaar a0ancy regulatory awperience They were subjected to cross examination. In contrast, the defendant produced og witnesses and introducea only one exhib.t on a tungential point. In slioil. tiew Pioliitiffs evidence was uncoctroverted, i
Findings Of Fact 1.
I'laint# Waste Control Spcelatesta LLC ("WCS").o ocoking to compoto for
- ontracts with Defendant Department of Energy (" DOE") for disposal of DOE radioactive wastas ancfor mned tow 4evel radioactive wastes generated as a result of U0ti's efforts to clean up sites used for neuonal defense programs, To this end, WC6 has spent millions of dol.ars to develop a disposal site in Andrews County, Texas 2.
DOE bas issued e Reque,st for Proposols ("RFP") covering certain radioactive waste disposal services in association vnth its cleanup of DOE's Fernald nuclear site in Ohio (the "Femeld RFP') and WCS submitted a bid in response to this massa. %
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t RFP. The RFP required that a succes3ful bidder shall have a l necessary licenses or permits" wilnin twenty seven (27) nonths of tiiw date of contract award, and that tne successful bidder shall N ke tilla to DOF wastes received for dispoemt.
3 WCS has submitted a proposa' dated December 20,1996, to DOE whereby DOC itself, or some qualifiwd entity actog on DOC's benalt, would at rio cost to UOE review the suitability of WCS' Andrews County este if the nita is founo safe and environmentally sound, WCS woLtd then be able to compete effectively for DDE l
radioactivo and oned tudiumctive waste disposal contracts.
DOE rejected WUb' prooosal. and subsequent variations nn it, by letters dated May 5,1997, and September t7.1997 ine rejecton was premised on ttle DOE contention that WCS must, but has not and carnot, obtari a state or Nuclw Regulatoiy Conenission ("NRC") license for low level rad oactive waste disposal 4
The Couri finds, and Defendants do not dispute, that WCS' December 2C, 1990 proposal can be lawfully implenented However, the Defendants counsel argued w thout any evidenen. in va@ie. abstract and evasNe language, that the adoption of such proposal presented ' complex
- policy issues that have not yet been resolved by the DOE even though the propusul was made in woamber,1990. The Vetendants contend, dpp& rent y. that until such " policy IM9:leS" ar* %Cived, WCS is not a que'iflee bidder for DOE low level end mixed radioactive wastes No assurance:.. made as to how or when such iss es mil bu resolved The Court was unabte, in questiontng counsel, to determine even thn raturn of the issues presented The Defendants did not appoor at the hearing 1
personally and no evidence was offered bearing upon such issues.
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8172227463; est 2 5-An award of a DOE contract for disposal of radioactive wastes from the DOE Fernata facitety is imminent, and without the injunction herein granted WCS will likely De desqualtfled from the bidding process on the basis that it lar'a a Inw-lavel radioactive waste disposalilCense from the State of Texas, that it lacks an NRC license. or that its bid j
i teeks to aller the provisions of the ('ernald RFP relat#ve to tetiv, in fact, a reasonable deduction fro n the evidence and from the defendants' brief is that the % it in' and that the Fernalo s to is a "dore deel* absent this inpnction compelling fait consideration and competiteen. Other DOE radiooctivo waste esposal contracts may be awarded or RPPS Illued during the pendency of this adion and, without the preliminary injunction. hs.ein granted WCS w,ll be Lnable to compete effectively for them. Once they are gone they are gone. The Court finda that Plaintdf will suffer irreparable si.jusy unless the preliminary inpiction herein ordered is issued, 11.
Concluelona of t.aw 6
The Court has jurisda.sion over the subeci matter of this proceeding pursuant s
to 28 U.S.C. $ 1331 The Statu uf Texas, where the disposal factisty of WCS is located, will not issue a iicense to a private company for the disposel of km lovol or mmed radioact ve wastes, Texas Health and Safety Code, $ 401,203, but recogness that no license is required to d spose of DOE low hyvel wx#cr mtxed radioactive waste. Plaintiff s Exhtoit 34 (a letter dated December 13. 1996, frorn the Teres Natural Resource Consorvction Commisskm to WCS) asau +.
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The existence of n state or NHC llCense is neither a necessary prereQu'31te ant a sufficient asis for the rocoipt by a DOE contractor of DOE low level or mixed radioactive westes for disposal at a private site. Atomic Energy Act of 1954, as amended
("AEA"). 991is,110a(2) and 161b,42 U S.C $5 2014s,2140s, and 2201b. Federallaw has pre-empted this sub,ect matter of radiological health and safety, Pocifle Gas i Electric l
Co v. State Fnerov Rauwreen Conserv. and Devolm Comm'.D 461 U.S 190.103 S.Ct l't t 3 ( 1963), Stkwood v. Kerr4tcLiee Coro,464 U.S. 238,104 S.Ct. 615 (1983). cection l
274 of the AEA. (42 tl S C $ 7071), does not relinquish to a state any federal AEA power l
.o iconse DOE low level radioactive waste d,sposal contractors. Thus, neither the arant not the refusal of a sta:e low-level racloactive waste disposalI; cense can constitute the basis for the qualification er the disqualification of a DOE oontractor to dispose of DOC lowdevel or mixed radioactive wastes at a private site A.though the AEA recuires "pwrsons" to obtain a license from NRC (or from a state if sucn authority has been formally I
delegateo by the NRC in tha state) as a precondition to the disposal of low-Icycl racioactive wastes, Sections 110a(2) and 11s of the AEA (42 U.S.C. $$ 2140a(2) and 2014s) exempt. so as not to irnpoos the government's own actions, the activibes of DOE and its twtresers fror, this regylrement. The contractor exernption in Scotlon 110e(2) is statutorly grantvi to contradors operating "under contrad with and for the scoount of the Commission? The exemption in Section iis is statutorily granted to the "Commisson" itself. A privahn contractor of the Commission performing 00C 'owevel or mixed radoactive weste disposai tunc'. ions at a prkate site on DOE's behan would be acting Nith and for the account of the Commission? 1he term " Commission" as us6d in these ra-H' if i '4!V MTm!
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- 3 '2 crovisions is det ned in the AEA to be the " Atomic Energy Commiss on? 42 U.S.C 9 20t 4(r). The Atcmic Energy Commissior was abolished in 1974 and its functions were transferreo to the NRC and the Energy Research and Development Acministration. Sit Pub. l.. No 93-438, Secs 104 anc 201,88 Stat.1233. In 1977. Congress terminated the Energy Research and Dove'opment Administration and llatisferred its functions to the newly created 00E San Pub. L No. 95 91. Socs 301(a) and 703,91 Stat. 565 As a result, the reference to" Commission"in Section i10a(2) of the AEA must be read to refer to the DOE Acc.stdingly, DOE's apparent disqua'ific,ationi ur WCS' Femald bla, and its rejection of tne WCS' December 20 proposal, on the ground that WCR <Wn not oossess -
(or cannot legally obtain) a Texas or NRC license, is arbitrary, capricous, an abuse of discretnn, and unta*ful. The Court is compelfed to agree with Pfuint ffs expens that DOE's stated reasons for disqualification are indeed ' bogus '
9.
The court fudner finds that WCS is, and at all times has been. witting and able to take title spon recoipt of 00E westes, pursuant to ttu tunna of the Fernato RFP, ano WCS' Femaid bid did not seek or purport to alter or vary the terms rotative to title of tne HFP Accordingly,00E's apparent contemplated denial of Plaintiffs Fernald bid, or the ground that WCG will not taAe title tu tiiv wntes covered Dy in's JOE's RFP Is aroitrary, capricious, an abuse of discetion, and unlawful.
10.
To obta.n a preliminary injunction, a party must show (A) a substantial likeinood of cuccoes on the merits; (D) a substantial llevat of irreparable injury if the inunction is not granted; (C) that the threatened injury to the movant out.wei0hs the 3
threatened injury to the nonmovent, and (D) that the granting of a preliminary injunction e n. %..
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- 7;'2 w>ti t'ot disserve the puohc interest. Cherokee Pump & Equip. Inc. v. Aurora Pumo. 38 F 3d 246 749 ( Ath Cir,1994), CJoef Authonty of Florida v. Collaway. 409 l'.2d 007. 572
($th Cir.1974) 11 The first factor, a showing of a substarlial likatibood of success on the ments. does not rectoire that the enovant prove his case. LahedrVams v. Teylor,932 F.2d 1103,1009 n.11 (5th Cir.1991) R is enough that the movant has raised questions going 1
l 1v tiie envrits so suostar'tlal as to make them falf ground for litigation and thus for more l
del.berMe irwest.getion. Cho v. Itco, loc., 782 F.Supp.1183,1185 (E.D. Tex 1991). The Couri concJudes that Plaintiff has satisfied the recuisita shoMng of substantial likelinood of successi eri the merits 12.
The wono factor is a si.cstritlat threat of irreparable injury if the injunction is not granted An inpry is irreparable if it cannot be undone inrcugh monetary remed,es Spievel v C4y o/ Houston, 636 F 2d 997 1001 (5th Cir.1951) To show irreparrb!e injury if tne tnrecerwt action is not erNolned, a party must show a sign,ficar threat of injury from e
the impend;ng acton. that the irijury is imminent, and that money oamages would not 'ully repair the harm. Numand. Inc. v. Avram A. Jacobso<t, M.D, P. A.,604 F 2d 1393,1394 (6th Cir 1986) The Court ccn udes that Pla6ntiffs have demonstrated a substantial threat of irreparable opry if a preliminary injunctionis not granted. Agaln, once these and future centracts atu gone, they are gone.
13 The third factor reqires a balancing of intorocts. The Defendants have not shc%n by arty canvincAng evidence that any significant harm or injury will be t orne by the United States or by the Dwfwoderits as a result or the issuance of the preliminary injunction mas..n f
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00t. ctfECA,.L ; 10 3 97 $: N c; 21478r8346 o 6173227463; 48.'2 here n granted Tne Coud finds that the Defendents will suffer no harm from the issuance of the prelimincry injunction here n ordered or, altematively, only minianal hwm The efrect of ne injunction ell allow lawful competitio9 where a monopoly or virtual monnpoly now exists The Cosit finds that tryury to the Plaintiff, described above, in the event injunctive relief is not granted cloorl outweigho any demoge to Defendents from the irjuncdve rvleef
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14.
t he fourth ta: tor regu res that tre pubtle interest be considered. The Court finds that the publ,c interost supporto the issuance of the preliminary injunction herein ordered DOE has not demonstrated that any procurements will be stopped, disrupted. or otherese bandered, that any pending RFPs will havt.. be altered or reissued, or that any site cleanups will be harmed or delayod. Indeed, DOE presented no evidence wteatsuwvut on these issues, and the Court condudes this is because they cannot. The " ell necessary peneuts or iconses" and ' title' provisions of the Fernald RFP do not require or justify the disrlualification of WCS as a bidder, and do not need to be changed by DOC to proceed with the procorem nt The public nterest in avoidino excessive costs usually associated with a monopoly and in insuring that its public otic als act in accordance with law will be ativanced by the issuance of such preliminary injunction. See No66ylobby, Inc. v. Cty of Dalias, 767 F Supp 801 (N.D Tex.1991, affd 970 F.2d (5th Cir 1992).
15.
Accorongry, the Court finds that the Plaintiff has c:6arly carned the burden of persuasion relative to all four of the followir.g factora, to wit: (A) there is e substantial likel' hood of suotees on the merits of its clam, (B) irreparable inbry will be suffered by the i
Plend unless tr's tryuncnon is issued, (C) the threatened iriury to Plaintiff outweighs any umaan e e
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809 (5:h Cr 1989). Considering on balance. each of these factors, they collectively favor granting the injunctive relief herein ordered. Picker Internabonal, Inc. v. Blanton, 756 F Supp. 971 (N.D. Tox.1000),
16 The decision to grant or deny a preliminary intunction lies w6 thin the sound dtscretoon of the distnct court. OSC Communications Corporate v. DGI Technotones, lne., at F 3d 697 (Stn Cir.1006). Cuch a grant is the exception rather titen tlin sulw M.ssassspot Power & Light Co. v. Unded Gas P.oe Lire Co.,760 F.2d 613 (5tn Ctr.1985).
lit.
Injuncuve Rollef Tre Court believes it is the litcants' r60ht to know the Court's raarnns fnr ac. finn it I
takes Without intending to be harsh cr vitriolic, the court infrequently feels CEmpelled to l
make observatiers regarding the facts before it. See. e g., DSC Communicd#uns Cotu v DGl Tect.1 ologies. loc. 898 F.Supp.1183,1103 (N.D Tex.1995). This is such a eMa because the evicence presented at neanng so clearly shows that something is amiss at the Department of Energy. The DOE's reasons given in argument for its' pusition n orauy do not pass the 'straioht face' test (can this argument be mode with a straiohl face?) It is no wondet tiet tw term *mderstatement' was used when Counsel for DOE was asked if they wero *under a lot of heat on this." Defense counsel candidly used that term to describe the situeben. As of now there e a virtual monopoly in hidding for tha off. site disposal et UUh low level and rnized radioactive weste yet there is at best an app 3 rent saams e e
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2 fack of interest at DOE n allomng other irterested parties to Compete for the award of sucti contracts, WCS characterizes the cuoltacts issued and to be issued as Deing "one of the.argest nondefense taxpayer expenditures in () S hintnry, exceeding for exernple, the cost of the federal savings and !oan balloJt."
See Plaintiffs Brief in Support of Pla ntifra Appilcation For Prefirmnary injunction, p.2. Tn!s evaluat6on may or may not be accurate. The experts indicated that *we are ta:ki..g Bill Gates type monay
- I From the recera d is unclear if the Court is deal ng with a sin of the head or a sin of the heart. It may be a ce6e of grubs isswiipeterwz, or it may be someth6ng far Worst.
In any event, it is clear that for some unknown reannn the Defendants have titlie interest in allowing WCS to compete in the current bidding process in accordance with the forego,ty findings of fact amid cunclusions of law, the court fieds that the Plaint #f is entitled, until further order of the Court and pendino further beanng of tnis cause, to a preliminary injunction against the Defendants as set forth below.
. Accrxcingiy, et is OrtDERED, ADJUDGCD and DCCRCED that during the peteduncy of these proceedings the Defendants their respective agents, amployees, ar'd attorneys, as well as t.ll persons in active concert or participation with the Defendants who receive octuel notroe of this Order ard its contents by personal wwiview us (Abstwnie, be, and they are hereby, ENJOINED from canying any WCS bid or conirect for 006 low level or rnized f acioactive waste disposal services on the ground (s) thet: (1) WCS is not or car not be licenced by Toxes for the disposal of Movel radioactive us inutwd wastus, (ii) WCS is not licensed by the NRC for the disposal of low. level radioactive or mhred wastes: or (iii) WC S P
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s' i 12 has imposed or sought to alter the provisions of the Fernald RFP relattve to t> tie to the wo>te> wbjm;t thereto it is further ORDERED. ADJUDGED and DECREFD that inn fora 0aino provisions of this inJUDCtCn shall not cause orjustify the reissuance Of any currently outstanding RFP and the Odercants, their respective agents, employees, and attorneys, as well as all persons in me.fiva enneart or participation with the Defendants wtio receive actual notice of this order and its contents by personal service or otherwise be, and they are hereby, ENJOINED from any such rwissuance.
It as further ORDERED that Platitiff shall po:,t an in. unction bond in cash or by a corporate surely quahfying under the local Rules of the court, in the sum of $10,000 00.
fur veyenent of such costs and damages as may be incurTec by the Defendants in the event that the Defardants havn been wrongfully on,oinot Cuch bond shall be filed with the Clerk of the Court, it is further ORDERCD, ADJUDGED and DECREED that a copy of tnis Order shall be served soon the Defencants by wcvn, upon rin attorneys in this proceecing, or any d nem by any person. over the age of eighteen (18) years and not a party to this action, act.ng onder the supervisen of Plaint #s aimaieys Such swvice is hereby deemed to be good and suffic.innt nervice The Defendants and their counsel are ORDERED to make all carties wtio could be effected by this Order awarn of its existence and its centents.
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The prelitninary inpncton rerein ordered shall not become eMoctive until the bond nerein above required has been feed and approved by the Court Plaints # may post a cash
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I 1
3 s) signea tnis ony of ocioner,1997.
MW JOE KENDALL UNITED STATES DISTRICT JUDGE i
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September 2. 1997 MEMORANDUM FOR:
John W.N. Hickey. Chief M
Low level Waste and Decommissioning Projects Branch-Division of Waste Management i
Office of Nuclear Material Safety
- and Safeguards -
FROM:
Robert A. Nelson. Chief [ Original signed by)
Low level Waste and Regulatory e
issues Section Low Level Waste and Decommissioning Projects Branch Division of Waste Management Office of Nuclear Material Safety and Safeguards
SUBJECT:
REPORT OF MEETING WITH WASTE CONTROL SPECIALISTS. LLC.
On August 14. 1997. U.S. Nuclear Regulatory Commission staff met with representatives of Waste Control Specialists. LLC. (WCS) to discuss regulatory oversight of a proposed disposal facility to be owned and operated by WCS for the purpose of disposing of low-level radioactive waste and mixed waste generated by the U.S. Department of Energy.
A report of this meeting is attached.
Attachment:
As stated I
CONTACTi Robert A. Nelson (301) 415-7298-TICKET: N/A-DISTRIBUTION: w/all att:
Central File-LLDP r/f NMSS r/f PUBLIC w/o att B:
JGreeves MFederline MBell KStablein BReamer PLohaus LBell TCJohnson JKennedy THarris
-EBrummett -56% nee To recotve a copy of this document in small box on *0FCC line enter:
'C' = Copy without attachment / enclosure: "E" =
Copy tsith attachment / enclosure: *N' = No copy
')
Path & File Name:-C:\\WP51\\ DOCS \\WCS MTG.RPT h
0FC -
LLDW2 f/
LLDPw /8 OGCs W[,
NAME RNeNon JHbdey BR$$mek I
DATE 6 //7/97 f/#/97-C / *)d97 3
. OFFICIAL RECORD COPY-ACNW: YES NO X
Category:
Proprietary or CF Only
-lG YES
-NO X
'YES NO.
X Delete file after_ distribution:
Yes No X Mb% DOO?
lP-
)