ML20244B200

Package of Documents Including 9NRC673(1979),25NRC410(1987) & 25NRC897(1987) Re Sheffield,Il Low Level Radwaste Disposal Site & Chem-Nuclear Sys,Inc,Midwest Facility

ML20244B200
Person / Time
Site:	02700039, 03018618
Issue date:	06/06/1979
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
Shared Package
ML20244B192	List: IA-89-125, Package of Documents Including 9NRC673(1979),25NRC410(1987) & 25NRC897(1987) Re Sheffield,Il Low Level Radwaste Disposal Site & Chem-Nuclear Sys,Inc,Midwest Facility ML20244B190 ML20244B200
References
FOIA-89-125 ALAB-866, CLI-79-6, DD-87-8, SC, NUDOCS 8904190058
Download: ML20244B200 (17)

Text

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- Cite as9. NRC 673 (1979):riu4;;9 'tCLk7S4 ' .

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UNITED STATES OF AMERICA . ..fr $

NUCLEAR REGULATORY COMMISSION .. .mai yA. bd

a. vr eus, a  :

. *. " o .,q p3 j L COMMISSIONERS:

Joseph M. Hendrie, Chairman t>

Victor Gilinsky I alehard T. Kennedy l

Peter A Bredford John F. Ahearne

.. In the Matter of i

Docket No. 27-39 NUCLEAR ENGINEERING COMPANY,1NC.

E l' (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site) June 6,1979 S The Commission finds that the Director, NMSS, acted well within his discretion in issuing an immediately effective show-cause order and that the

' order should remain in effect until the issues leading to the order have been resolved by a Licensing Board. The Commission also issues a separate Notice

- of Hearina directing the Licensing Board to consider whether the licensee

. . :w may unilaterally terminate its license.

[l*KE

.jg NRC: ADJUDICATORY RESPONSIBILITIES The fundamental principle guiding all Commission licensing actions is -

, . # the paramount consideration of public safety. This principle pervades the regulatory scheme established by the Atomic Energy Act and requires all-gy persons to act with respect to nuclear materials in a manner which does not N threaten the public health and safety.

RULES OF PRACTICE: SHOW CAUSE PROCEEDING ji

,h I ' The Director, NMSS, may issue an immediately effective order if the 6; public health, safety or interest requires or if the Licensee's violations are ,

7 willful.10 CFR 2.202 (f). -

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RULES OF PRACTICE: SIIOW CAUSE PROCEEDING l

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~ ~ . _ . Latent conditions which may cause harm in the future are a sufficient

--i~~ basis for issuing an immediately effective show-cause order when the.

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- consequences might not be correctable in the future. Consumers Power I Jg -

Company (Midland Plants Units 1 and 2), CLI 74-3,7 AEC 10-12 (1974).

.. RULES OF PR ACTICE: SIIOW CAUSE PROCEEDING "W5M..'~ .

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• Courts have found that purported violations of agency regulations sup-

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port an immediately effective order even where no adverse public health y .za z m.g

~ ~ "=" l consequences are threatened. Ewing v Mytinger and Casselberry, Inc., 339 ~

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U.S. 594 (1950). Where the Director, NMSS, was concerned with possible -

-; - P % . violations of health and safety regulations which could reasonably be ex-

Pb - yr pected to have adverse pub?ic consequences, the Director, NMSS, could is-15G m .c-.g.n. - - sue an immediately effective order.

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RULES OF PRACTICE: S!!OW CAUSE PROCEEDING 3+, ' Min v .:n

_m' __c In civil proceedings, action taken by a licensee in the belief that it was legal does not preclude a finding of willfulness. CargI//, Inc. v Hardin,

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452 F. 2d 1154 (8th Cir.1971).

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MEMORANDUM AND ORDER WN.d  ;

The Nuclear Engineering Company, Inc. (NECO), a materials licensee

.:T~.Z~11 under License No.1310N2-01, operates the low-level radioactive waste M~s_d;',1,1 .. .

disposal site near Sheffield, Illinois. NECO filed a timely application for C5.$1r license renewalin August,1968, and its license has been continued in effect dF$g;;%.. . pending final Commission action.10 CFR 2.109. A Licensing Board we.s N/D ' established to consider NECO's application. 43 Fed. Reg 9892 (March 10,

, %YE% 1978). On December 27, 1978, NECO moved the Licensing Board to f

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~'y g @ g ;E.;M suspend further proceedings concerning its application. After hearing from the parties, the Licensing Board, in its order of March 7,1979, scheduled

. '. v - c' ora! argument for March 27,1979, to consider NECO's motion. On March a 8,1979 NECO filed a " Notice to Atomic Safety and Licensing Board of W'ithdrawal of Application and Termination of License for Activities at

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~ ri Sheffield." In response the Licensing Board on March 13,1979, issued an Amended Order Setting Oral Argument in which it treated NECO's notice ,

g[kh as a motien pursuant to 10 CFR 2.730, and expanded the scope of hearing

-_,j,h,~ ~ ~g@g to include NECO's motion and any answers thereto.

M-On March 8,1979, NECO also oc.tified the Director, Nuclear Materials l

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/l t ,,m-t a_ - _ z Safety and Safeguards (NMSS), that as of that date it was (1) withdrawing its [,-7-n.

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pending application to renew its license and expand the Sheffield site, and  ;' ~

(2) was unilaterally terminating its license for all activities at the Sheffield > 4 y; . ' .h'. .cT., t >

site. The Director, NMSS, informed NECO on March 9,1979, that it could

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unilaterally terminate its Sheffield license, and directed NECO to take all f " / .[ ' ',

necessary action to assure public health and safety at the site. NECO t NMlQg L -

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responded on March 14,1979, stating that, in its view, NRC lacked authority to hold NECO to its materials license because NECO had discharged its

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wjgggg license responsibilities and tht the Sheffield site presented no danger to public health and safety,

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w On March 20,1979, the Disctor, NMSS, ordered NECO to show cause why it should not resumeits responsibilities under its license for the Sheffield l

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site, and required NECO to resume its responsibilities immediately. The Director based his order on NECO's obligation to act in a safe and responsl.

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' ble manner with respect to its license for receipt and possession of nuclear E materials at the Sheffield site. These obligations include maintenance of site  : 1.05NN@ .;

security and trenches inwhich the low. level radioactive material is buried.

The Director explained that under the Commission's regulatory scheme no [ .,g licensee can terminate its obligations and responsibilities under an NRC  %. .--

license except under terms and conditions established by the Commission, i T

and that such termination must be preceded by appropriate Commission -

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" ' "S g review to assure protection of public health and safety. Furthermore, he y3 m*:Tyt 7q$'t?.3",w pointed out that licensees could not transfer materials to a third party, such as the State of Illinois which owns the site, without prior Commission ap- w ,.-

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proval. '

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NECO's general failure to hold in force terms and conditions of its Ty% h .$, i license were confirmed by two on-site visits ou March 9, and 16 by inspectors 2 --

frorn the Commission's Office of Inspection and Enforcement (Region 111). t

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~-4 Ar NI The show-cause order also gave NECO 20 days to request a hearing to consider the issues involved. ,; , @8%

j$yg On March 22,1979, NECO moved for emergency action by the Com-

• I m y .wy y' mission to stay the immediate effectiveness of the Director's show cause order, and to delegate the Commission's review functions in this matter to

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the Licensing Board now considering NECO's withdrawal ofits application .

. ... J ~" ? ---- O to renew and expand its Sheffield license. NECO sought prompt action on its motion because it wanted its objections to the show-cause order to be ll 33NMW85M_"

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considered by the Licensing Board at the oral argument scheduled for March 27,1979. '7 [_ M *a-c~B f"f

~c e w +e .:t Under the Commission's rules, unless the Secretary prescribed other time periods, the response times to NECO's motion were 20 days for the

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NRC staff and 15 days for the State of Illinois. Both participants informed ;i .. % ,,_ ,-. M a2

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e a q us they could not reply by March 27,1979. In view of this circumstance,'and ' l

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the unique nature of the issues raised by NECO's motion, we did not shorten :

i ?pfa- W.~ ' the participants' response times. -

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On March 23,1979, NECO filed Answer of Nuclear Engineering Com.

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pany, Inc. to Order to Show.Cause and Demand for Hearing pursuant to I

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10 CFR 2.202(b). All participants agree tha't resoletion 'of the issues raised ' ._

,y .:.= h ,r . 1 by the show cause order would be most expeditiously and efficiently handled ; a

-. by the Licensing Board now in existence. Pursuant to 10 CFR 202(c) we are _

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today issuing a separate Notice of Hearing directing the Licensing Beard to consider the issue of NECO's unilateral termination ofits license. -

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-- NECO contends that the immediate effectiveness of the Director's order

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• does not satisfy the Commission criteria' for determining that the Director --- l

{," M O IM D I- L acted within his discretion because the order did not allege that NECO's _ ,- j

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withdrawal created an immediate threat to public health and safety. The NRC- 1 -,

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staff and the State of Illinois oppose NECO's request that we vacate the n +m.-~~~ _.

immediate effectiveness of the show-catise order because it was based on the

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need to preserve public health and safety.

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The reasons stated by the Director in his order provide the requisite t

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"" [ basis for understanding his decision, As he noted, the fundamental principle ~ ~~

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guiding a!! Commission licensing actions is the paramount consideration of

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.m . " . . . -. public safety. This principle pervades the regulatory scheme established by m+ %,a6 , .

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the Atomic Energy Act and requires all persons to act with respect to nuclear materials in a manner which does not constitute a threat to public health pp.;;,. *?

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' Con.solidated Edi. son Company of New York, (Indian Point, (Jnits 1,2, and 3), CLI 75-8,2 NRC 173,175 (1975).

- gg;,gpfgg;,' That decision sets out five points of inquiry relevant to determining whether the Directh has abused his discretion in the issuance of an order to show.cause: 'I

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(1) whether the statement of reasons given permits rational urvlerstanding of the basis for EC

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~~ M fifyip p.f (2) whether the Director has correctly understood governing law, regulations, and policy; "wwggy7,1 (3) whether all necessary factors have been considered, and extrar cous factors excluded,

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g' frorn the decision; (4) . whether inquiry appropriate to the facts asserted has been made; and -

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{ ,up g ] (5) whether the Director's decision is demonstrably untenable on the basis of allinforma.

tion available to him.

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, iG In this case, we have also applied these criteria to the issue of the immediate effectiveness

__. uni -j of the Directors order because that issue is inextricably intertwined with the Director's decision m, 4,, toissue the order,

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and safety. For Sheffield, NECO developed a set of procedures for protect- n

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- ing public health and safety. These were incorporated by reference into the Sheffield license. These procedures included provision of a perimeter fence -

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and guard patrol, maintenance of burial trenches, and ongoing environ- . . ,.

G E mental monitoring. The public health and safety reasons for these pro- f.

cedures are explained in several of NECO's filings with the NRC in sup- - -<+ ~

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l port of its license application. NECO recognized that unauthorized access j could lead to exposure to radioactivity or unauthorized removal of radio-

m, active material; that defects in trench caps would allow surface water to enter a 3384NSUW.A l

the burial trenches, become contaminated with radioactive materials, and t 1 Tf!N$X&. '

' migrate off-site exposing the public; and that soil contaminated with radio-  ! IWMW jdid -

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j active materials from leaking packages could be blown about and inhaled 2" by NECO personnel on its adjacent site. In spite of these well-known pos- 2 E G M C D ~ E f. Z sible consequences, NECO unilaterally termineled all Sheffield activities on 9 M M YA E.f$Y E l

March 8,1979. NRC inspectors visited the site on March 9, and 16, and confirmed NECO's general failure to hold in force its license terms and ,.

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conditions. In our view, the Director's reasons and NECO's understanding 2

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of their implications provided it with a sufficient basis for understanding '

E*NONME the order.

- , . . - g The Director's authority to issue an immediately effective order is con-tained in 10 CFR 2.202(f). That regulation provides that an order may be {d1g;%  % ff g% ~c.ow; '

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immediately effectiveif:

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• The public health, safety or interest so requires, or

• the Licensee's violations are willful. @ NEd T M me.. .a 4 .

We believe that all of the prerequisites for an immediately effective order \' ,,. . JMI[;j%

are present.

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w As we have discussed above, NECO's refusal to maintain and monitor .

the Sheffield site could reasonably be expected to lead to off-site migration GF 5 2$$.t of radioactive materials which could expose the public. The Commission fMyE Sh'5f4 has previously found that latent conditions which may cause harm in the , ,

• 9 '

MM $D-future are a sufficient basis for issuing an immediately effective show-cause E us > .

order where the consequences might not be subject to correction in the i i . a r=N" future. Consumer Power Company (Midland Plants, Units I and 2), CLl-b 4mk%[ mmh 8N8 -

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74-3,7 AEC 10-12 (1974). Consequently, the possibility of off-site migration, its potential for adverse impact on the public, and the impossibility of re- .

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!d O YM;_3E calling such material once it escapes off site support the Director's finding 'E --# a .t,

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_.;.;7 that public health and safety requir ed an immediately effective order.

Public interest in an orderly licensing process also supported the Di-

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rector's decision. Courts have found that purported violations of agency [#k "ZQ.' - -

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regulations support an immediately effective order even where no adverse public health consequences are threatened. Ewing v. Afytinger and Cassel-  :

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be expected to have adverse public consequences. Under these circumstances, ..

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the Director reasonably concluded that NECO's unilateral action required '

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interest justified an immediately effective order which simply required C.521 i 6 = ==L ;

NECO to resume safety related on site activities. . ,

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There is also no question that the licensee acted willfully biits unilateral <

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license could not be unilaterally terminated. In spite of this opinion, NECO on March 14 reiterated its determination to unilate' rally terrrmate alllicense F%.wW "

- '- I obligations. Such proposeful action by NECO supports the Director's find. "

....-.-m mg of willfulness Air Transport Associates v. Civil Aeronautics Board 199 .

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- .. F.2d 181,186 (D.C. Cir.1952), cert, denled, 344 U.S. 922 (1953), Cf. Unite'd -

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States v. Illinoir Central R. Co., 303 U.S. 239,242 243 (1938). In civil pro-

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ccedings, action taken by a licensee in the belief that it was legal does not

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preclude a finding of willfulness. Cargill, Inc. v. Hardin, 452 F.2d 1154 (8th bT g~ g

'pfg Cir.1971). Thus, NECO's belief that it had no further obligation under l

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the license does not invalidate the Director's finding of willfulness.

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NECO's mere assertion that'it could unilaterally terminate its license .

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presents significant questions oflaw and policy beyond the scope of the Di.

E.  ;! rector to decide in the context of the need for action to protect public health '

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opinions on NECO's legal theories, we find that the Director was justified GF3,9'~ in believing that NECO's license was still in force, and that NECO's uni.

5:M.~.-$ih-ry .-~ lateral termination of its obligations under that license constituted willful 3h'MN ;. '

violation supporting an immediately effective order, The Director's decision to issue an immediately effective order was ylS-Wh.. made after two NRC inspection visits to the Sheffield facility. These visits 44;:dM3Mg.g _ , confirmed NECO's general failure to hold in force the terms and conditions -

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of its license. The inspectors found that the security fence was in need of r. e- ,

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pair, that the licensee was not providing security, that the burial trench area contained sinkholes at several locations, that NECO had not been.

- ;;;;;pt-dfr; monitoring sumps in burial trenches and surface water runoff, and that

' 53:ds:-h buried waste had been exposed in some sinkholes. Consequently, we find C..'Z..G.~~W

- _ 9. that all necessary factors have been considered and inquiry appropriate to

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.1 M96 the facts asserted had been made. .

In view of the foregoing discussion, we find that the Director's decision KJ# gfrdii was not demonstrably untenable on the basis of all the information available 5;E*ff6;MMsg to him. Consequently, we find that the Director acted well within his discre.

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tion in issuing an immediately effective show-cause order. Furthermore, we  !

• aho find that these same reasons require that the order remain in effect at ( , '

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.! least until the issues have been resolved by a Licensing Board. Of course, -

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q: at this time we make no determination on the merits of the issues in the ' '

T show-cause proceeding. If the decision on any of those issues should come '" ~ ~' W sd N

before us for review, we will at that time reach our conclusions on the basis - rmM;f.*e' %

N of the record then before us. *.

We note in passing that we are not alone in finding that conditions at the  : 1 ., , ,,. .

• Sheffield site are such as to render reasonable a requirement that NECO

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immediately resume responsibility for that site. An Illinois Circuit Court t m .wsdw<,y,ipy.,;

.,, m g g g a y.g requiring to resume site q foun at pre mmary njunctive re mamtenance activities was clearly justified, necessary, and appropriate.2 ,,  :-n.L-W. g g g g '

l .h, -%.,~.CC.b L .a G Even though thLt Court's criteria for en'oining NECO were somewhat dif- 6 T. .N. c.M2_ f,@_.Y.. .P.S.'.-

ferent, it is clear that the basic factor motivating that Court was the same - .

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an immediately cffective show cause order. ~

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% . . -s.w It is so ORDERED. d iC,7Q 5,KiM 4'hrr.ged .

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For the Commission

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! Samuel J. Chilk  : v:.h42.".,?,;0.

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Secretary of the Commission {

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Dated at Washington, D.C., m ^:::

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th.is6th day of June,1979 . - . ~ - - - .

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Cite as 25 NRC 410 (1987) DD-87 8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS Robert M. Bernero, Acting Director

In the Matter of Docket No. 3018618 CHEM NUCLEAR SYSTEMS,INC.

(Midwost Faellity) April 30,1987 ,

l l

The Acting Director of the Office of Nuclear Material Safety and Safeguards l denies a petition filed by Mrs. Gisela Topolski of Joliet, Illinois, requesting the l

suspension of the license of Chem Nuclear Systems, Inc. Petitioner's request appeared to be based on allegations that (1) the Licersee failed to disclose to local authorities its real intent to use a supercompactor; (2) the Licensee failed to make environmental studies which would have revealed a number of problems l with the operation of the supercompactor in what Petitioner Jecms to be an unsuitable residential area: (3) the Licensee's change of name to Chem-Nuclear Systems, Inc., did not change its chameter and that its character is indicated by the conduct of its majority stockholder, Waste Management, Inc., which (a) left thirty-seven states with leaking landfill sites and (b) failed to train its ,

employees; (4) the Licensee's technology and equipment is from the 1950s; and (5) employees who report violations lose their jobs. ,-

1 RULES OF PRACTICE: SIIOW CAUSE PROCEEDING .

Where a petitioner has not provided the factual basis for his request with.

the speciScity required by 10 C.P.R. 6 2.206, action need not be taken on the request.

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' DIRECTOR'S DECISION UNDER 10 C.F.R. f 2.206 7

INTRODUCTION l

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By two substantially identical letters dated February 4,1987, Mrs. Gisela Topolski of Joliet, Illinois, petitioned the Director, Office of Nuclear Material 0 Safety and Safeguards, pursuant to 10 C.F.R. 9 2.206, to suspend the license of Chem-Nuclear Systems, Inc. (Chem Nuclear or Licensee).

t Petitioner's request appears to be based on allegations that (1) the Licensee failed to disclose to local authorities its real intent to use a supercompactor; (2) the Licensee failed to make environmental studies which would have revealed a number of problems with the operation of the supercompactor in what Petitioner deems to be an unsuitable residential area in Channahon, Illinois; (3) the -

Licensee's change of name to Chem-Nuclear Systems, Inc., did not change its character and that its character is indicated by the conduct of its majority stockholder, Waste Management, Inc., which (a) left thirty seven states with j leaking landfill sites and (b) failed to train its employees; (4) the Licensee's technology and equipment is from the 1950s; and (5) employees who report violations lose their jobs.

For the reasons discussed below, I have decided that Petitioner's request should be denied.

DISCUSSION

' NRC License No. 39-23004-03 authorizes Chem Nuclear Syster's, Inc., to possess byproduct material incident to the decontamination, service, and repair

• of shipping casks, vehicles, trailers, and equipment at its Midwest Facility near Channahon, L11nois. On June 20, 1986, Chem-Nuclear applied for an amendment to its license to authorize the receipt, temporary storage, and supercompaction of radioactive waste in 52 or 55 gallon drums incident to transfer to a licensed disposal facility. On December 9,1986, the NRC issued an amendment authorizing the receipt and temporary storage of radioactive waste incident to transfer to a licensed disposal facility.The license contains a condition

, that the supercompaction of waste is not authorized until Chem Nuclear submits additional information to and receives express approval from the NRC.

Petitioner's first allegation is that Chem-Nuclear, under false pretenses, failed to disclose in its initial contacts with local authorities its real intent to use a supercompactor at the Midwest Facility. There are no specific requirements under NRC regulations that Chem-Nuclear notify local authorities regarding its intent to use a supercompactor. Nevenheless, in connection with Chem.

Nuclear's application for use of the supercompactor, the NRC asked the Licensee l 411 i

C _- __ _ ___

j to contact authorities such as the local police and fire departments to discuss qualifications of personnel and equipment for handling potential incidents at the facility that could involve radioactive materials, and the Licensee has done l so. Moreover, the NRC has required Chem Nuclear to submit a preemergency i response plan in connection with the use of the supercompactor which requires I

specific coordination, training, and practice drills with the local police and fire departments. The NRC Staff has concluded that the Licensee has now adequately i notified local authorities of its planned use of the facility. In sum, there is no specific NRC requirement that the Licensee inform the local authorities

, regarding its intent to use a supercompactor, the Licensee nevertheless has now informed the local authorities of its intent, and the Stsff concludes that no further action is appropriate.

i Petitioner's second allegation is that Chem-Nuclear failed to make environ-

, mental studies which would have revealed a number of problems with the op-

, eration of a supercompactor in an " unsuitable" residential area where there are

! shallow wells and the zoning is incorrect.8

{ The Midwest Facility of Chem-Nuclear is located in a small industrial area approximately 1 mile from the village of Channahon, Illinois. The NRC Staff has l

, considered the locadon of the proposed use of the supercompactor and has con-cluded that operation of the supercompactor facility will not have a significant effect on public health and safety. " Nuclear Regulatory Commission [ Docket No. 030-18618), Chem Nuclear Systems, Inc., Midwest Facility, Channahon, Illinois, Environmental Assessment and Finding of No Significant Impact"(En-

, vironmental Assessment).

j No environmental assessment was prepared for the December 9,1986 licens-ing action because, without the supercompactor, receipt and storage brokerage operations meet the criteria covered by a categorical exclusion pursuant to 10 C.F.R. 5 51.22(c)(14)(xii). Ilowever, in connection with the application for use

• of the supercompactor, the Staff has completed an Environmental Assessment in g accordance with the provisions of 10 C.F.R. 5 51.21. 'Ihe major areas addressed sj in the Environmental Assessment include environmentalimpacts, radiation doses j{

l to workers, and potential for radiological exposure to transport workers and to L members of the general public. On the basis of the Environmental Assessment, I l

the Staff has concluded that the supercompaction operation will not have a sig-nificant effect on the quality of the human environment. Notice of issuance of the Environmental Assessment has been published in the Federal Regfrter. 52 Fed. Reg.13,546 (Apr. 23,1987).

As to the Petitioner's allegations concerning shallow wells, NRC's contacts with state authorities revealed the following: (1) there is one water well on the 4

1 We understand that the sonmg d the prgerty is being htigated. Zoning d the propeny whars licensees opeW8 l is a maner for local authoniia.

' l i 412 I

---

._------___-------_--___x--------------_----

)

i Cherrt-Nuclear site and several wells within h mile of the facility that traverse ,

a dqpth of about 30-40 feet below the ground surface, (2) the ground water may l be as close as within 10 feet of the ground surface, and (3) the predominant geology is sand and gravel to a depth of 40 50 feet. (Illinois State Geological Survey and Illinois State Water Sttrvey.)

' In order to ensure that the use of the supercompactor does not result in any significant environmental impact on ground water, the NRC has determined that Chem Nuclear's license will be limited to the receipt, storage, and supercom-paction of dry waste containing no transuranic or special nuclear radioactive material, except as incidental to the receipt, storage, and supercompaction of 1 byproduct radioactive material, nis will limit the potential effect on surround-ing ground water to only that arising from the generation of small amounts of liquid during the compaction process, nis liquid will be fully contained within the compaction cell area and no floor drains will be allowed in the compaction cell area.

Additional:y, the NRC has required Chem-Nuclear to install a foam fire sup.

pression system and liquid collection system for the supercompactor facility and to coordinate the use of the foam fire suppression system with the Channahon, Illinois Fire Department when responding to a potential fire encompassing ra-

). dioactive waste in drums stored outside the facility.8

In conclusion, an Environmental Assessment has been prepared, arid it is the r

NRC's intent to limit Chem-Nuclear's license respecting use of a supercom-pxtor in order to preclude adverse effects on ground water. De NRC Staff r has determined that operation of the supercompactor will not have a significant

• effect on the public health and safety.

.. Petitioner's third allegation is that the Licensee's change of name to Chem-Nuclear Systenu, Inc., did not change its character and that its character is i indicated b/ the conduct of a corporate predecessor, Waste Management, Inc.,

which left > neral states with leaking landfill sites, and which inadequately trains

[ its persceael.

Waste Management, Inc., acquired Ch:m-Nuclear Systems, Inc., in 1982.

Since that time the NRC has issued four (4) licenses to Chem Nuclear for the

' use of radioxtive materials. There is no history of significant violations under any of these active licenses which would indicate that Chem-Nuclear poses a threat to the public health and safety sufficient to warrant suspension of a license g

as requested by the Petitioner. In fact, there has been only one minor violation relating to the location of required records.

Notwithstanding Petitioner's general allegations of past leakage problems experienced by Waste Management, Inc., the Petitioner has not presented specific 2The suft bebeves that the potential for this type cr are is negligible in view of the beense requsrer,ers to stars wasis only in secure, steel dmrns.

1. 413

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I 1

information to demonstrate that the operation of the supercompactor at the Midwest Facility would be conducted improperly. Petitioner has not shown that Waste Managem,:nt, Inc.'s alleged record is related to Licensee's performance under its NRC license. Where a petitioner has not provided the factual basis for a request with the specificity required by 10 C.F.R. 6 2.206, action need not be taken on the request. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), DD-8511,22 NRC 149,154 (1985).

Moreover, the Staff notes that the alleged problems experienced by Waste Management, Inc., appear te stem from leakage of hazardous chemicals from the land disposal of hazardous waste. Since Chem-Nuclear's NRC license authorizes storage and waste processing, not disposal or burial, of radioactive waste at the i Midwest Facility, land disposal problems similar to those allegedly experienced i by Waste Management, Inc., at other sites do not indicate that such problems i are likely to occur at the Midwest Facility.

2 "Ihe NRC has carefully reviewed.the training for the Chem Nuclear staff '

f who will be responsible for overseeing the NRC-licensed program at the Midwest Facility, and concludes that it is adequate. 'Ihe Petitioner has not provided information that indicates that members of the Chem Nuclear staff are untrustworthy or otherwise unqualified to handle the supercompxtion program.

In conclusion, the Staff has reviewed Chem-Nuclear's history of violations under its licenses issued since 1982, when Waste Management, Inc., acquired Chem-Nuclear, and has found no basis for suspension ofits license. Moreover, the Staff has carefully reviewed Chem-Nuclear's training for its Staff overseeing its supercompactor program and concluded that it is adequate. Pctitioner has failed to provide the factual basis for her request with adequate specificity, and it is the Staff's conclusion that there is no reason to believe Chem-Nuclear will not perform its activities in compliance with its license.

Petitioner's fourth allegation is that Chem Nuclear's technology and equip-ment is not from the 1980s, but from the 1950s. Pettioner has failed to identify any piece of equipment or technology that is allegedly outrnoded, relying in-stead on a general allegation unsupported by a single fact. Petitioner has failed to provide any factual basis for suspension, much less a factual basis with the specificity required by 10 C.F.R. 6 2.206, so no action on her request is re-quired. Limerick, supra, 22 NRC at 154.

Independent of Petitioner's allegation, however, in the process of issuing the -

December 9,1986 amendment to Chem-Nuclear, the NRC carefully reviewed the Licensee's radiation protection procedures, radiation detection equipment, t inventory systems, fire and security protection systems, and supercompactor de-vice. In all these areas, Chem Nuclear meets all applicable NRC regulations and requirements. Moreover, the fire protection systems have been inspected by the l Chhnnahon, Illinois Fire Department, and Chem-Nuclear has incorporated the Fire Department staff's suggestions for making the system meet carrent industry 414 x s

standards. Further, some of the radiation detection instruments, the supercom-pactor, and the computer system for tracking inventory have been developed only in the last few years. Finally, the NRC Region III staff recently inspected ,

the facility and determined that all safety systems function as designed. Spe-cial tests were conducted with nonradioactive drum compaction and all systems functioned normally. In sum, the Staff has no basis to conclude that Chem-Nuclear's equipment and technology fails to meet regulatory requirements by reason of obsolescence.

Petitioner's fifth allegation is that employees who report violations lose

1. their jobs. The Petitioner has not presented specific information to support her allegation that employees who report violations lose their jobs. She supplies l

neither the names nor positions of any such employees, nor the dates nor genera circumstances surrounding her allegation that employees have been fired for 3eporting violations. Where a petitioner has not provided the factual basis for her request with the specificity required by 92.206, action need not be taken on

{

the request. Limerick apra,22 NRC at 154. '

' During recent inspections of the facility, when Licensee's employees were b asked by NRC inspectors what they would do if they saw violations of NRC requirements, none indicated any reluctance to report safety violations to his f or her management or the NRC. In fact, they are trained to report such viola- '

tions.The NRC has not received any other allegations regarding Chem Nuclear's l terminating employees for reporting violations. The Staff has concluded, absent j

l' any specific information to the contrary, that employees are not reluctant to q; report safety violations.

l f,I 6 CONCLUSION I

For the reasons discussed above, I have concluded that no adequate basis l f '

exists for suspending the license of Chem-Nuclear Systems, Inc. Accordingly, ,

the Petitioner's request for action pursuant to $ 2.206 is denied.

7; As provided in 10 C.F.R. 9 2.206(c), a copy of this Decision will be filed with the Secretary for the Commission's review and the Decision will constitute j t

I t 415

a l

i 4 the final action of the Commission 25 days after the date of issuance, unless the Commission on its own institutes review of this Decision within that time.

Robert M. Bernero, Acting Director Office of Nuclear Material Safety and Safeguards l Dated at Silver Spring, Maryland, this 30th day of April 1987.

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Cite as 25 NRC 897 (1987) ALAB 866 I m v ~ c- l

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

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g i Alan S. Rosenthal, Chairman mww. -ma g^'*" ' .k -- -

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J M M,a'"w:fr,.::m.n WX in the Matter of Docket No. 27 39-SC . ne r;

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US ECOLOGY,INC. g ~w~ -~ 411;a.c.w;;m.u gm-tm ap ..-  : sa.-

(Sheffloid,lillnois Low. Level 1

Radioactive Waste Disposal Site) June 16,1987 fi $$$ 919MD 'EJkM*M 7w f .Am=.w.uk.,;i.M6eq=.-= sm On the appeal of the licensee from two Licensing Board memoranda and 7 mggj ;_;,.f*$

orders in this snow cause proceeding involving the Sheffield, Illinois Low Level . + -- P *m.q~M'*

-t-cn Af l' Radioactive Waste Disposal Site, the Appeal Board vacates the two orders and r ..'.

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I terminates the proceeding upon the representation of the parties that regulatory $ M " ' # M., = Mm m ..

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i jurisdiction over the site has been transferred from the Commission to the State.

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9 RULES OF PRACTICE: MOOTNESS (LOSS OF JURISDICTION) ' ** E J;. @ ~ a".'s m i

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Where a licensing board order under appeal is mooted by the loss of agency 2. y g jurisdiction over the subject matter prior to the completion of appellate review,

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the Appeal Board may vacate the order. United States v. Munsingwear, Inc., i * #' * " # h.a.-

340 U.S. 36,39-41 (1950). " - - " " "

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APPEARANCES k_

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Mark J. Wetterbahn, Robert M. Rader, and Nils N. Nichols, Washington, ~

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driguez, and Diane Rosenfeld Lopata sChicago, Illinois, for the State of Illinois. __

sd.nu=.: - S r :m Ann P. Hodgdon and Robert M. Weisman for the Nuclear Regulatory 1

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'Ihis show-cause proceeding involving the Sheffield, Illinois Low Level

.443-'-- '7 Me**fc::::- .". n r Radioactive Waste Disposal Site is before us on the appeal of US Ecology, MZL ..;  ; Inc., from two Licensing Board memoranda and orders.8 last month, the Jam m Nuclear Regulatory Commission and the State of Illinois executed an agreement2

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_. .. whereby, as no party to the proceeding disputes, regulatory jurisdiction over the Sheffield site was transferred from the Commission to the State effective June

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• 1,1987.5 On full consideration of the views of US Ecology, Illinois, and the

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NRC staff respecting the appropriate course in these circumstances, we wcate

.-d,'.' F - - the two orders subject to the appeal and terminate the proceeding. Unfred States

-M, " - v, Munsingwear, Inc., 340 U.S. 36, 39-41 (1950).* In this connection,it is our "v*

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-y , .- . - 83u 12P 87 5. 25 NRC 98 (1987); Mardi 10,1987 mernorandum and order (mpubbsbed).

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2 344 52 Fed. Reg 22,864 (1967)

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I la e Febevary 20,1987 wnum submission, US Ecology had requested the Commission to esclude Shef6 eld e C*'i,C .N".3 . tran tha sc<pe of iu thm-proposed agreernent with Dhnois pendmg es ceptenen of the show cause proceeding

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at bar. See Comrnenu of US Ecology. Inc., to the Nucleu Regulatmy Ccrnmission a the Nance et Nposed y*d ,,,,.

g.. .:.," Q.i.t :, .. Agreernent wie the Siste of Ilhnois for es Asswnp6cn of Certain of the Cornmi.saim's Regulatory Authonsy

- C Y:' Puamu to Secncn 274 of the Atede Energy Act In recmt alings with ts,Us Ecology capheidy adtnowledges

• ihet the Commasim njected that request. See US Ecology's Moden to Vacate the order to show Cause of Masch

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$ YMO e 20,1979, and AD Resulting Adjudicatory Orden (May 20,1987) at 3 a6; Us Ecology's Answer to NRC Staff pc4MTTI - - mene,s= e*- - -

Mouan toTerminais Proceedess on Appral and to Yusts IJansing Board's Decisima (June 2,1987) si 2.11hnois and the NRC start hkewiss have af5smatively scpresented to us that the egnemeru catends to Shetneld. ses suis of 11hnois' Objecticos to Madons to Vacats Show Cause Order and Board Decisions (June 12,1987) at 1 s;NRC i

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., **=; ~~~ % 2 n "NRC Stas Motion") as 5.

• • ""***'"'"",Z h suf5ces to observe that there is no snent to Blinois's position that iu agreement wie the NRC stnes as

,. 4, m.mL of jurisdiction to take any action raher than to ternGate the NRC show.cause proceeding bois insisu that, g-Mil, ',TM'.- ahhough the agreanent trought that proceedeg to an end, the wrden andere1 in it by the 1) sensing Board estain their viuliry. 'Dtis is said to be so because, accordmg to hois, the agreement sirnply transfermd the stahanty

_ n>rmre. e - to review these orden from us to su Deputrnant of Nuclear Safety. Bus Chnois has pointed to ao agreement

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/.M,i pn ict;F < provision or other authority (and we have found rume) that might p<esibly serve io support that pnpositia More 7 partculady, the agreemers does not sugacet that the Canmission intended to clothe a state agascy wah the power j 1NF *&**.::~---' !L'.y.'

• to arnim, to revene, w to modify orden issued by an NRC adjudicatory tribmal in a now-closed proceedeg that

_ C16W.fi .:#1,'. - - had been instituted by the NRC and cmducted teder iu Rules of Pracues and other regulainy provisions. In the absence of a clear sutarnet et such a secrningly novel purpose, one is net to be interred. Acsordegly, inasmuch g-'j~'M --

E as the agreerners marufendy has the e6ect or dapnving US Ecology of hs preetisung abihty to obum review "jQ '~* within the NRC d the ticensing Board's orders, operative effect rnust be renoved Isorn ihase orders as an incidars

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of the terminauen of the procesdes in which they were rendered. As Afanagwear teaches,this objecuve can be accomplished by simply vacating the orders.

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will withdraw, its March 20,1979 show.cause order directed to US Ecology.s r  % ' fpg @  ; j fh 3 It is so ORDERED.

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. FOR THE APPEAL BOARD e" CL .

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