[Federal Register Volume 60, Number 210 (Tuesday, October 31, 1995)]
[Notices]
[Pages 55384-55388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26937]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 40-8027]
Sequoyah Fuels Corporation; Issuance of Director's Decision Under
10 CFR Part 2.206
I. Introduction
Notice is hereby given that the Director, Office of Nuclear
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission
(NRC) has issued a Director's Decision under 10 CFR 2.206 regarding the
Sequoyah Fuels Facility in response to a petition received from Ms.
Diane Curran (Petitioner), dated March 14, 1995, on behalf of the
Native Americans for a Clean Environment. (NACE) The petition also
considered a subsequent letter from Petitioner dated March 31, 1995.
The petition was referred to the staff for consideration pursuant
to 10 CFR 2.206 of the Commission's regulations. For the reasons stated
in the enclosed ``Director's Decision under 10 CFR 2.206,'' items 1, 3,
and 4 of the Petition have been denied, and item 2 is moot.
Native Americans for a Clean Environment (NACE) submitted to the
Nuclear Regulatory Commission (NRC), a ``Petition for an Order
Requiring Sequoyah Fuels Corporation to File a Final Site
Characterization Plan (SCP) and for an Order to Obtain a License
Amendment'' (Petition) dated March 11, 1995. NACE requested NRC to take
action with respect to the Sequoyah Fuels Corporation (SFC or Licensee)
pursuant to 10 CFR 2.206. The Petitioner requests that NRC:
(1) Reverse the NRC staff's decision to permit SFC to proceed with
site characterization without submitting a final Site Characterization
Plan (SCP), by issuing an Order or a Confirmatory Action Letter
obliging SFC to submit a final SCP by a date certain;
(2) Obtain a copy of the Environmental Protection Agency's (EPA)
title search or perform a title search of all property used in
connection with the SFC license, in order to clarify the identity and
ownership of all property subject to NRC License No. SUB-1010;
(3) Issue an order forbidding SFC, Sequoyah Fuels International
Corporation, Sequoyah Holding Corporation, or any other associated
corporation that holds title to property under NRC License No. SUB-1010
from transferring any interest in any of its property before SFC
applies for and receives a license amendment authorizing transfer; and
(4) Before issuing any such license amendment, find reasonable
assurance that any entity acquiring an interest in the SFC property
fully understands the nature of the liabilities and responsibilities it
is undertaking for cleanup and long-term care of the site and that it
has the financial capability to carry out those responsibilities.
The Petition alleges the following bases for its requests:
(1) The NRC staff illegally and improperly excused SFC from its
obligation to submit a final SCP;
(2) SFC is presenting a ``Trust Indenture'' to several towns and
the county of Sequoyah for the creation of an industrial park;
(3) Neither SFC's letter to Mr. Main (Secretary of Commerce,
Oklahoma Department of Commerce), the Fact Sheet, nor the Trust
Agreement, itself, refers to the fact that SFC has been ordered by NRC
and EPA to characterize the extent of the contamination in the 1,400
acres that surround the 85-acre processing area, the focus of site
characterization and remediation efforts; nor do those documents refer
to the other sources of potential contamination, consisting of
groundwater migration from the admittedly contaminated processing area,
effluent streams and ditches, and the Carlisle School (located on the
land proposed for an industrial park, and used by SFC as a laboratory);
(4) The Trust Indenture depicts the 1,400 acres of land subject to
NRC License No. SUB-1010 as the candidate area for the industrial park;
SFC has made conflicting representations regarding the size of the
``facility'' or ``site'' to NRC and in the Trust Indenture. SFC
responded to the Petition by a letter dated March 29, 1995, and
requests that the Petition be denied in all respects.
By letter dated March 31, 1995, NACE supplemented its Petition.
NACE states that SFC is conducting site characterization by utilizing
the EPA Facility Investigation Workplan (FIW), which was prepared for
the EPA pursuant to requirements of the Resource Conservation and
Recovery Act (RCRA). Petitioner asserts that by relying on the FIW to
conduct site characterization, SFC has neither understood nor
implemented NRC staff criticisms of the draft SCP. Petitioner asserts
that NRC should require SFC to submit a written final SCP because the
FIE does not:
(1) Resolve NRC comments related to site hydrogeology and vertical
and lateral contamination;
(2) Resolve NRC sample density concerns; or
(3) Provide for characterization of the DUF4 processing,
decorative pond, and parking lot areas.
By letter dated May 10, 1995, the Director, Office of Nuclear
Material Safety and Safeguards acknowledged receipt of the Petition,
and informed the Petitioner that the Petition would be evaluated under
10 CFR 2.206 of the Commission's regulations.
I have completed my evaluation of the matters raised by the
Petitioner and have determined that, for the reasons stated below, the
Petition is denied in part, was satisfied in part, and NRC regulations
address the Petitioner's concerns related to the requests for issuance
of orders related to transfer of property.
II. Background
From 1970 until July 6, 1993, SFC operated a uranium conversion
facility at a site located in Gore, Oklahoma, under the authority of
NRC License No. SUB-1010, issued pursuant to 10 CFR Part 40. The main
process was the conversion of uranium oxide (yellowcake) to uranium
hexafluoride. A second process, initiated in 1987, consisted of the
conversion of depleted uranium hexafluoride to uranium tetrafluoride,
the first step in producing depleted uranium metal.
After the discovery of contaminated soil surrounding structures
used by SFC for its licensed activities, NRC staff issued an order
suspending SFC's authorization to operate its conversion facilities.
See ``Order Modifying License (Effective Immediately) and Demand for
Information,'' EA 91-067 (October 3, 1991). After studies by SFC,
operational and organizational changes by SFC, extensive NRC
inspections, and several public meetings, NRC, on April 16, 1992,
lifted the order suspending the SFC license and authorized SFC to
resume operation of its conversion facility.
[[Page 55385]]
In November 1992, SFC (and subsequently in writing) informed NRC
that operation of its main process for the conversion of uranium oxide
(yellowcake) to uranium hexafluoride was permanently terminated and
that the second process, the conversion of depleted uranium
hexafluoride to uranium tetrafluoride, would be terminated by July
1993. SFC formally notified NRC of its intentions to terminate all
conversion processes and seek license termination in accordance with 10
CFR 40.42(e), in a letter dated February 16, 1993. In addition, a
proposed plan to address decommissioning issues related to the SFC
facility, entitled ``Preliminary Plan for Completion of Decommissioning
(PPCD),'' was enclosed in its letter of February 16, 1993.
By letter dated March 23, 1993, NRC staff notified SFC that its 10
CFR 40.42(e) notification had been accepted, and that activities at the
site should be limited to those related to decommissioning. By letter
dated July 7, 1993, SFC notified NRC staff that SFC had ceased all
operational licensed activities. Since that time, SFC has restricted
its activities to disposal of contaminated material and planning for
decommissioning.
On August 4, 1993, SFC and EPA Region VI signed an Administrative
Order on Consent (AOC), establishing a schedule for compliance with
Section 3008(h) of the Solid Waste Disposal Act, as amended by the
RCRA, as further amended by the Hazardous and Solid Waste Amendments of
1984, 42 USC 6928(h). The AOC required SFC to perform a number of tasks
aimed at monitoring site conditions, site characterization, corrective
measures, and financial assurance. A key element of the AOC is the RCRA
Facility Investigation (RFI) Workplan. The RFI Workplan data needs
closely parallel those of an NRC SCP. For SFC's site, both the RFI
Workplan and the SCP involve characterization of much of the same
property. The major difference between the RFI Workplan and the SCP
rests only on the constituents that are analyzed (nonradioactive
materials for EPA and radioactive materials for NRC).
Common to both plans is the characterization of the soil, bedrock,
and groundwater underlying the site. SFC agreed to drill a series of
wells to the next lower water-bearing strata to better define the
geology underlying the site and to sample for contamination. These
wells are in addition to the 100 wells previously install by SFC at the
site. Whether or not the deeper wells planned by SFC to address EPA
concerns will also satisfy NRC concerns related to the vertical extent
of radiological contamination will have to await the evaluation of
sample analyses.
To avoid unnecessary duplicative regulatory actions, EPA and NRC
drafted a site-specific Memorandum of Understanding (MOU). Under the
terms of this MOU, EPA and NRC will exchange pertinent documents, keep
each other informed of planned actions, and, to the extent possible,
coordinate major characterization and remediation tasks on similar
schedules. The MOU was signed by EPA on September 21, 1995, and by NRC
on September 25, 1995.
SFC submitted to EPA a draft RFI Workplan in January 1994. EPA
reviewed the draft RFI Workplan and provided SFC comments in a letter
dated August 25, 1994. Based on the comments provided by EPA, SFC made
changes to the draft RFI Workplan and a final Workplan was approved by
EPA in December 1994. In accordance with the requirements of the AOC,
SFC must submit a final RFI Report to EPA by December 1995.
SFC submitted a draft SCP to NRC in January 1994. Interested
persons, including EPA, the United States Geological Survey (USGS), and
NACE reviewed the draft SCP and provided comments to NRC. Consistent
with the staff's commitment to NACE, in a letter from J.H. Austin (NRC)
to D. Curran (NACE), dated December 9, 1993, to keep NACE involved in
the review process, the NACE comments were discussed with
representatives of NACE, NRC and SFC in a May 31, 1994, meeting.
NRC staff performed an extensive review of the draft SCP and of all
the comments regarding the draft SCP. Where appropriate, NRC staff
factored those comments into NRC staff's comments, which were
transmitted to SFC by letter dated November 3, 1994. The essence of NRC
staff's comments was that SFC must do substantially more sampling than
proposed in the draft SCP. Additional sampling is necessary to reliably
identify the types and extent of contamination on and around the SFC
site. NRC staff requested that SFC address the staff's comments, or
provide the basis for not making changes to the SCP.
In its November 1994 quarterly report to EPA, required by the AOC,
SFC raised concerns related to possible duplication of SFC's
decontamination and decommissioning efforts that could result in
unnecessarily increased costs.
In January and February 1995, NRC staff engaged in technical
discussions with SFC regarding the November 3, 1994, comments of the
staff concerning the draft SCP. The discussions covered a broad range
of issues related to site characterization and scheduling.
By letter dated February 5, 1995, the Director, Division of Waste
Management, Office of Nuclear Material Safety and Safeguards, confirmed
NRC staff's understanding of SFC's verbal commitment, by telephone in
early February 1995, to use NRC staff's comments of November 3, 1994,
during site characterization and in SFC's preparation of its Site
Characterization Report (SCR). Furthermore, NRC agreed with SFC that
the schedule for the SCR should parallel that for the RFI Report, in
order to minimize possible redundancy and associated costs, and to
facilitate the effective utilization of SFC resources. Accordingly, NRC
gave SFC a due date of January 15, 1996, for submission of a draft SCR.
The staff also reminded SFC that NRC may establish legally binding
requirements, if necessary, to ensure timely and effective remediation
of Site Decommissioning Management Plan (SDMP) sites. The SFC facility
is an SDMP site. In its March 29, 1995, response to the Petition, SFC
again committed to address the NRC's comments on the SCP during conduct
of the site characterization effort. SFC confirmed its understanding of
the staff's November 3, 1994, comments by a letter dated June 2, 1995,
in which SFC again committed to incorporate those staff comments into
its SCR.
III. Discussion
A. Petitioner Requests That NRC Staff Reverse Its Decision To Permit
SFC To Proceed With Site Characterization Without Submitting a Revised
SCP, by Issuing an Order or Confirmatory Action Letter Requiring SFC To
Submit a Written Final SCP
Petitioner contends that by not requiring SFC to submit a written
final SCP, NRC staff illegally and improperly excused SFC from its
obligations in violation of the:
(a) Timeliness in Decommissioning Rule;
(b) NRC's ``Action Plan to Ensure Timely Cleanup of Site
Decommissioning Management Plan Sites'' (Action Plan), 57 Fed. Reg.
13389 (April 16, 1992);
(c) NRC's December 29, 1992, Demand for Information to SFC;
(d) MOU between NRC and EPA; and
(e) NRC's commitments to Petitioner in a letter dated December 9,
1993, that SFC would be required to demonstrate how it would sample all
potentially contaminated areas as part of the SCP.
NRC staff weighed the potential benefits, and the increased costs
of and
[[Page 55386]]
delays in decommissioning, of requesting SFC to revise its draft SCP in
accordance with NRC staff comments, which SFC understood and had
already agreed to incorporate into the site characterization process
and SCR. NRC staff concluded that the objectives of site
characterization could be met, and data appropriate to support a
proposed decommissioning alternative could be produced, if NRC staff's
comments were implemented during site characterization. NRC staff's
action was intended to avoid potentially costly delays in
decommissioning and to prevent duplication of regulatory actions, based
on work already underway as a part of the EPA-approved RFI Workplan.
Additionally, the staff's action was consistent with agency efforts
to streamline the Site Decommissioning Management Plan (SDMP)
regulatory review process.1 The SFC site is an SDMP site. This
streamlining involves, among other things, discontinuance of NRC staff
review of SCPs and SCRs prior to the submittal of decommissioning
plans. Site characterization information will be considered by NRC
staff in its review of decommissioning plans. NRC regulations do not
require the submission of SCPs or SCRs, but do require site
characterization data to be submitted with the decommissioning plan.
See 10 CFR 40.42(f)(4)(i). Streamlining the SDMP process is consistent
with NRC regulations.
\1\ On May 19, 1995, the NRC staff briefed the Commission on
SDMP Policy and Program issues, including the staff's implementation
of streamlining. 10 CFR 40.42(f)(4)(i). Streamlining the SDMP
process is consistent with NRC regulations.
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Streamlining promotes a more coordinated and focused review of the
licensee's characterization information and place greater emphasis on
issues that affect the selection and implementation of a
decommissioning approach.
Contrary to Petitioner's assertion, NRC staff's action was
consistent with the Timeliness in Decommissioning rule. Those
amendments to NRC regulations establish specific time periods for
submission of a decommissioning plan and completion of decommissioning,
and were intended to reduce potential risk to public health and the
environment at facilities after licensed activities have ceased. See
``Timeliness in Decommissioning of Materials Facilities,'' 59 Fed. Reg.
36026 (July 15, 1994). The staff's February 5, 1995, letter allowed SFC
to proceed with site characterization on the condition that SFC include
in its SCR the staff's November 3, 1994, comments regarding the draft
SCP. The staff determined that inclusion of those comments would
produce adequate site characterization and would reduce delay. Although
site characterization and the data derived during site characterization
are necessary inputs to a decommissioning plan, 2 SCPs and SCRs
are not expressly required by NRC regulations. The staff did not
release SFC from the ``timeliness'' rule or from the requirement to
submit a decommissioning plan. See 10 CFR 40.42(f)(1). The staff's
action reduced potential delays in site characterization and
decommissioning, and cannot be considered to have contributed to any
delay in SFC's decommissioning the SFC site.
\2\ The licensee's decommissioning plan must include a
description of the site, buildings, and outside areas affected by
licensed activities. 10 CFR 40.42(f)(4)(i).
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Contrary to being in violation of the NRC's Action Plan, NRC
staff's February 5, 1995, letter to SFC was consistent with the plan.
The Action Plan was intended to encourage compliance with NRC
timeliness in decommissioning regulations. The Action Plan is not
itself a rule and contains no enforceable standards. The Action Plan
refers to submittal of an SCP, but does not require NRC approval. The
Action Plan encourages licensees to enter into early consultation with
NRC staff regarding site characterization and decommissioning issues.
Such consultation is intended to address site-specific conditions to
ensure that site characterization is appropriately planned and
conducted, and of sufficient depth to support a selected
decommissioning option. Consistent with the Action Plan, NRC staff
engaged in site-specific technical discussions with SFC regarding not
only NRC's comments on the draft SCP, but also the comments of NACE,
the USGS and EPA. See Section II, supra. The NRC staff's February 5,
1995, letter to SFC was consistent with the Action Plan, and cannot be
considered to have contributed to any delay in compliance with
timeliness requirements for decommissioning, for the same reasons that
the staff's action was consistent with the Timeliness in
Decommissioning Rule.
Petitioner does not explain, nor is it apparent how, the NRC
staff's February 5, 1995, letter contravened the December 29, 1992,
Demand for Information (DFI) to SFC. As Petitioner notes, the February
13, 1993, Preliminary Plan for Decommissioning, submitted by SFC in
response to the DFI, commits SFC to submission of an SCP to NRC and to
implementation of the SCP by early 1994. The staff in its February 5,
1995, letter did not delay the submission or implementation of the SCP.
To the contrary, the staff permitted SFC to proceed expeditiously with
an SCP which NRC had reviewed and considers adequate, as long as the
staff's November 3, 1994, comments are incorporated, which SFC has
undertaken to do.
Contrary to Petitioner's assertion, NRC staff's action in its
letter of February 5, 1995, did not violate the (then draft) MOU
between NRC and EPA. The then draft MOU, as well as the final MOU,
state that NRC will ensure that SFC develops and implements an SCP,
which NRC staff has done. Moreover, in the spirit of the EPA and NRC
site-specific MOU, NRC and EPA have worked together to avoid
unnecessary duplicative regulatory actions and their attendant costs.
Specifically, after consultation with the EPA, NRC staff agreed in its
February 5, 1995, letter to SFC's request that the schedule for site
characterization and submission of the SCR should parallel that of the
EPA RFI Workplan. The development of the EPA MOU and NRC MOU was a
major consideration in NRC staff's action allowing SFC to proceed with
site characterization and to incorporate NRC staff's comments in the
SCR, rather than to require submission of yet another version of the
SCP.
Contrary to the Petitioner's assertions, NRC staff's action by its
letter of February 5, 1995, did not violate NRC's commitments to
Petitioner, made in a letter dated December 9, 1993, that SFC would be
required to demonstrate how it would sample all potentially
contaminated areas as part of the SCP. The December 9, 1993, letter
also stated that NACE's concerns would be addressed during NRC staff's
review of the SCP.
NRC staff met these commitments to NACE. NACE reviewed the SFC
draft SCP and provided comments to NRC staff. NACE's comments were
discussed in a meeting on May 31, 1994, with representatives from NACE,
NRC, and SFC. All applicable NACE comments were incorporated into NRC
staff's comments and transmitted to SFC by letter dated November 3,
1994. SFC verbally committed, by telephone in early February 1995, to
use NRC staff's comments of November 3, 1994, during site
characterization and in SFC's preparation of its SCR. SFC confirmed its
understanding of the staff's November 3, 1994, comments by a letter
dated June 2, 1995, in which SFC again committed to incorporate those
staff comments into its SCR. Accordingly,
[[Page 55387]]
contrary to Petitioner's assertion, there is no basis to conclude that
NACE's concerns will not in fact be addressed. Moreover, NRC remains
committed to ensuring that SFC conduct a complete and accurate
characterization of all radiological contamination on the SFC site and
on property affected by SFC's licensed activities, through reviews of
SFC's SCR and a subsequent decommissioning plan.
By letter dated March 31, 1995, NACE supplemented its Petition.
NACE states that SFC is conducting site characterization by utilizing
the RCRA Facility Investigation Workplan. Petitioner asserts that by
relying on the EPA Workplan to conduct site characterization, SFC has
neither understood nor implemented NRC staff criticisms of the draft
SCP. Petitioner asserts that NRC should require SFC to submit a written
final SCP because the EPA Workplan does not:
(1) Resolve NRC comments related to site hydrogeology and vertical
and lateral contamination;
(2) Resolve NRC sample density concerns; or
(3) Provide for characterization of the DUF4 processing,
decorative pond, and parking lot areas.
As explained above, NRC staff concluded after a series of
discussions with SFC, that SFC does understand the staff's November 3,
1994, comments regarding the draft SCP. Moreover, SFC has committed
itself to incorporating those staff comments during site
characterization and in the SCR. In addition, NRC staff concludes,
after review of the EPA-approved RFI Workplan, that:
(a) The approved RFI Workplan adequately addresses NRC comments
regarding questions of hydrogeology and the vertical and lateral extent
of contamination;
(b) The RFI Workplan, draft SCP, and the SFC commitment to
incorporate NRC staff's comments on the draft SCP into site
characterization activities will together ensure adequate sampling for
site characterization; and
(c) The SCP, provides for adequate characterization of the
DUF4 processing area (Unit 29), the decorative pond (Unit 26), and
parking lot (Unit 31) (see Figure 2 of the SCP).
NRC staff has neither violated, nor excused SFC from complying
with, any NRC regulatory requirements, the MOU between NRC and EPA, any
NRC staff commitments to Petitioners, or the December 29, 1992, DFI to
SFC. Petitioner has raised no health and safety concern arising from
NRC staff's action by letter of February 5, 1995, permitting SFC to
address and implement the staff's November 3, 1994, comments during
site characterization and in the SCR. Additionally, the staff's action
was consistent with agency efforts to streamline the SDMP review
process. Furthermore, to require submission of a written final SCP
would unnecessarily delay decommissioning of the SFC site and unduly
raise the costs of decommissioning.
In view of the above, there is no basis to require SFC to submit a
written final SCP.
B. Petitioner Requests That NRC Obtain From EPA a Copy of Its Title
Search or Perform a Title Search of all Property Used in Connection
With the SFC License
By letter dated April 20, 1995, Mark W. Potts (EPA Region VI),
provided to Lance Hughes, on behalf of NACE, a copy of a document
entitled ``Preliminary Property Search Document; Sequoyah Fuels
Corporation; Gore, Oklahoma.'' The document is dated July 26, 1994, and
was prepared by PRC Environmental Management, Inc. for EPA. The
document identifies SFC as the sole owner of the 85-acre process area
of the Sequoyah Fuels facility and the approximately 2,100 acres of
land surrounding the facility. A copy of this report has been placed in
the SFC licensing docket and is available through either NRC's Public
Document Room (PDR) at 2120 L St. NW., Washington, DC 20037, or the
local PDR (LPDR) at the Stanley Tubbs Memorial Library, 101 E.
Cherokee, Sallisaw, OK 21801.
Petitioner has identified no inconsistencies between the Trust
Indenture and any representations to NRC regarding the size of the
``facility'' or ``site''. The land subject NRC license SUB-1010 is
principally the 85-acre site along with any adjacent lands that have
been affected by licensed activities.\3\ The copy of a ``Trust
Indenture'' submitted by Petitioners neither describes the SFC facility
or site, nor does it describe any lands subject to the Trust
Indenture.\4\ Article V merely identifies the Trust Estate as all
property coming into the possession of the trustees pursuant to the
Trust Indenture. The enclosure to a letter dated August 18, 1994, from
John Ellis, President, SFC, to the Oklahoma Department of Commerce,
both of which were attached to the Petition, describes the proposed
industrial park as a site of 1,430 acres on the east bank of the Kerr-
McClelland Waterway. Clearly the proposed industrial park surrounds or
includes, in part, the SFC site, but is not identified by the Trust
Indenture as all or part of the property subject to NRC License No.
SUB-1010.
\3\ Licensed activities do not include raffinate spreading
because the treated raffinate is released for unrestricted use prior
to spreading. However, if NRC determined that treated raffinate
spreading significantly affected adjacent lands, then NRC would
consider the need for additional characterization and remediation.
\4\ SFC denies having contributed any corporate resources to
drafting or developing the proposed Trust Indenture or in
circulating it to local communities, but states that it has openly
pursued development of an industrial park with local and state
officials to replace jobs lost as a result of closing the SFC plant.
SFC states that a local community group, SAFEST, has been working on
the Trust Indenture with the Sequoyah County Commission. See Letter
of John H. Ellis, President, SFC, dated March 29, 1995, to James M.
Taylor, Executive Director for Operations, NRC.
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Petitioners have not raised a safety concern regarding the identity
and ownership of lands subject to NRC License No. SUB-1010. Moreover,
because EPA provided a copy of its title search the Petitioner's
request has been satisfied.
C. Petitioner Requests That, Before Permitting Transfer of Land Subject
to License No. SUB-1010, NRC Find Reasonable Assurance That Any Entity
Acquiring an Interest in the SFC Property Fully Understands the Nature
of the Liabilities and Responsibilities It Is Undertaking for Cleanup
and Long-term Care of the Site and That It Has the Financial Capability
to Carry Out Those Responsibilities
NRC regulations at 10 CFR 40.42(c)(2) and 40.42(d), and License
Condition No. 14 of NRC License No. SUB-1010, require that any real
property subject to the License or affected by licensed activities must
be remediated by SFC in accordance with an approved decommissioning
plan, such that the property is suitable for release in accordance with
NRC requirements. This means that SFC may not transfer nor release, by
sale or any other means, property subject to NRC License No. SUB-1010,
or property affected by SFC's licensed activities, until SFC remediates
such property and SFC demonstrates that the property meets NRC criteria
for release.
It is not apparent from the NACE Petition, and no information has
come to the attention of NRC staff to indicate, that there has been a
transfer of any real property subject to or affected by activities
conducted pursuant to NRC License No. SUB-1010. It does appear that
several local governmental authorities, including Sequoyah County and
the cities of Gore, Vian and Webbers Falls, have entered into an
agreement to participate in the proposed Trust Indenture.
[[Page 55388]]
In its response to the Petition, SFC committed to inform NRC of any
proposal SFC receives for transfer of property adjacent to the
industrial area, before SFC acts on any such proposal. SFC also states
that at some future time, SFC may dispose of real property unaffected
by licensed operations at the SFC facility, and would do so only after
notifying NRC. In the case of affected areas, SFC states that it will
dispose of such property that has been released by NRC, after SFC
demonstrates that appropriate criteria have been met.
Before real property used in connection with or affected by
activities conducted pursuant to NRC License No. SUB-1010 could be
transferred to a person without authority to engage in NRC-licensed
activities, that property must be decommissioned to meet the criteria
for release for unrestricted use. See 10 CFR 40.4 and 40.42, and
License SUB-1010, Condition 14. Since the proposed Trust Indenture
would involve the transfer of land for the purposes of an industrial
park, it appears that the potential transferees have no plan to engage
in NRC-licensed activities. Thus, the decommissioning criteria for
release of such property would be for unrestricted use.\5\ If SFC were
to decommission property used in connection with its licensed
activities to meet NRC criteria for release for unrestricted use, the
transferee would assume no obligation to remediate or to engage in
long-term care of such property, and NRC would have no regulatory
authority over the transfer of or the transferees of such property.
\5\ The Commission is currently evaluating proposed changes to
the rules governing release criteria. See ``Radiological Criteria
for Decommissioning,'' 59 Fed. Reg. 43200 (August 22, 2994). SFC
will have to comply with all NRC requirements for release to
unlicensed individuals under any revised rules.
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If property used in connection with activities conducted pursuant
to NRC License No. SUB-1010 were transferred to a person who seeks
authority to engage in NRC-licensed activities, including
decommissioning activities such as remediation or long-term care, SFC
would be required to obtain written permission from NRC prior to the
transfer. See 10 CFR 40.46. At that time, it would be appropriate for
NRC to ensure that the transferee is capable of meeting NRC
requirements for decommissioning and all other applicable licensing
requirements and the transferee must obtain an NRC license. In view of
the above, Petitioners concerns about the potential transfer of
property to the Trust and state, and potential transferees of such
property, are adequately addressed by applicable regulations.
D. Petitioner Requests That NRC Staff Issue an Order Forbidding SFC,
Sequoyah Fuels International Corporation, Sequoyah Holding Corporation,
or Any Other Associated Corporation That Holds Title to Property
Subject to NRC License No. SUB-1010, From Transferring Any Interest in
Such Property Before SFC Applies for and Receives a License Amendment
Authorizing Such a Transfer
As explained above, SFC owns the land subject to NRC License No.
SUB-1010. Before SFC may transfer or release any property used in
connection with, or affected by, its licensed activity to a person not
authorized to engage in NRC-licensed activity, that property must be
remediated in accordance with an approved decommissioning plan to meet
NRC criteria for release for unrestricted use. See Section III.C,
supra. There is no NRC requirement that a licensee obtain NRC
permission to transfer property which has been remediated to meet NRC's
criteria for release for unrestricted use.
If SFC were to transfer property subject to the license or affected
by licensed activity to persons for the purpose of engaging in licensed
activity, 10 CFR 40.46 requires that SFC obtain written permission from
NRC before transferring such property and the transferees must obtain
an NRC license. Petitioners, however, have provided no evidence that
such a transfer is contemplated or imminent.
Petitioners have raised no safety concern regarding a potential
transfer of property used in connection with or affected by activities
pursuant to NRC License No. SUB-1010, or potential transferees of such
property. See Section III.C., supra. Moreover, since protection of the
public health and safety, in the event of a transfer of such property
to the proposed Trust Indenture, is already accomplished by NRC
regulations, there is no justification to issue the requested order.
IV. Conclusion
The institution of proceedings pursuant to 10 CFR 2.202 is
appropriate only where substantial health and safety issues have been
raised. See Consolidated Edison Company of New York (Indian Point,
Units 1, 2, and 3), CLI-75-8, 2 NRC 173, 175-176 (1975); Washington
Public Power Supply Systems (WPPSS Nuclear Project No. 2), DD-84-7, 19
NRC 899 (1984). This is the standard I have applied to determine
whether the action requested by Petitioner is warranted. For the
reasons given above, Petitioner's request that SFC ordered to submit a
written final SCP by a date certain is denied. Petitioner's request
that NRC perform a title search of property subject to NRC License No.
SUB-1010 was satisfied. Action on Petitioner's request for an order
forbidding the transfer of any interest in land subject to NRC License
No. SUB-1010 before SFC applies for and receives a license amendment
permitting such transfers is unnecessary because applicable regulations
address Petitioners concerns. Likewise, Petitioner's request that,
before granting such a license amendment application, NRC ensure that
potential purchasers of property be subject to NRC License No. SUB-1010
to fully be apprised of their obligations for site remediation and
long-term care and that NRC ensure such potential purchasers are
financially qualified to do so, is unnecessary because applicable
regulations address Petitioner's concerns.
As provided by 10 CFR 2.206(c), a copy of this Decision will be
filed with the Secretary of the Commission for the Commission's review.
The Decision will become the final action of the Commission 25 days
after issuance, unless the Commission on its own motion institutes
review of the Decision within that time.
Dated at Rockville, Maryland, this 23 day of October, 1995.
For the Nuclear Regulatory Commission.
Carl J. Paperiello,
Director, Office of Nuclear Material Safety and Safeguards.
[FR Doc. 95-26937 Filed 10-30-95; 8:45 am]
BILLING CODE 7590-01-P
