[Federal Register Volume 64, Number 64 (Monday, April 5, 1999)]
[Notices]
[Pages 16504-16508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8315]
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NUCLEAR REGULATORY COMMISSION
Issuance of Directors Decision Under 10 CFR 2.206
Notice is hereby given that by petition dated October 15, 1998, the
Natural Resources Defense Council (NRDC) has requested that the U.S.
Nuclear Regulatory Commission (NRC) exert authority to ensure that the
U.S. Army Corps of Engineers' (the Corps) handling of radioactive
materials in connection with the Formerly Utilized Sites Remedial
Action Program (FUSRAP) is effected in accord with properly issued
license and all other applicable requirements. As NRDC notes in its
petition, FUSRAP began in 1974 as a program of the U.S. Department of
Energy (DOE), and that DOE had identified a total of 46 sites for
cleanup under FUSRAP. By 1997, cleanup of 25 of these sites had been
completed. There are currently 21 sites still in need of remediation.
In October 1997, Congress transferred funding for FUSRAP from DOE to
the Corps. NRDC believes that the Corps should obtain an NRC license to
conduct activities under FUSRAP. At this time, the NRC has not required
the Corps to obtain a license.
The request has been referred to the Director of the Office of
Nuclear Material Safety and Safeguards. A copy of the petition was sent
to DOE and the Corps, and DOE and the Corps were given the opportunity
to comment.
By letter dated November 30, 1998, NRC acknowledged receipt of the
October 15, 1998, Petition.
The Director, Office of Nuclear Materials Safety and Safeguards,
has determined that the request should be denied for the reasons stated
in the ``Director's Decision Under 10 CFR 2.206'' (DD-99-07), the
complete text of which follows this notice and which is available for
public inspection in the Commission's Public Document Room, the Gelman
Building, located at 2120 L Street, N.W, Washington D.C. 20555, and is
also available on the NRC Electronic Bulletin Board at (800) 952-9676.
A copy of this Decision has been filed with the Secretary of the
Commission for the Commission's review in accordance with 10 CFR
2.206(c) of the Commission's regulations. As provided by this
regulation, this Decision will constitute the final action of the
Commission 25 days after the date of issuance unless the Commission, on
its own motion, institutes review of the Decision within that time.
Dated at Rockville, Maryland, this 26 day of March 1999.
For the Nuclear Regulatory Commission.
Carl J. Paperiello,
Director, Office of Nuclear Material Safety and Safeguards.
Director's Decision Under 10 CFR Sec. 2.206
I. Introduction
On October 15, 1998, Thomas B. Cochran, Ph.D., Director, Nuclear
Program, Natural Resources Defense Council (NRDC) and James Sottile,
IV, Caplin & Drysdale, Chartered, filed a petition on behalf of NRDC
(the ``petitioner'') addressed to L. Joseph Callan, Executive Director
for Operations, U.S. Nuclear Regulatory Commission (NRC). The petition
requests that NRC exert authority to ensure that the Corps of
Engineers' handling of radioactive materials in connection with the
Formerly Utilized Sites Remedial Action Program (FUSRAP) is effected in
accord with a properly issued license and all other applicable
requirements.
II. Background
During the 1940s, 1950s, and 1960s, the Manhattan Engineer District
and the Atomic Energy Commission performed work at a number of sites
throughout the United States as part of the nation's early atomic
energy program. Although many of the sites were cleaned up under
guidelines in effect at the time, residual contamination remains at
many of the sites today. The contaminants at these sites involved
primarily low levels of uranium, thorium, and radium, with their
associated decay products. The U.S. Department of Energy (DOE) began
FUSRAP in 1974 to study these sites and take appropriate cleanup
action. By 1997, DOE had identified 46 sites in the program and had
completed remediation at 25 sites with some ongoing operation,
maintenance, and monitoring being undertaken by DOE. Remedial action
was planned, underway, or pending final closeout at the remaining 21
sites.
On October 13, 1997, Congress passed the 1998 Energy and Water
Development Appropriations Act,1 which transferred
administration of FUSRAP to the U.S. Army Corps of
[[Page 16505]]
Engineers (the Corps or USACE) and appropriated $140,000,000 to the
Corps for the completion of FUSRAP activities. The language in the law
reads as follows:
\1\ Energy and Water Development Appropriations Act, 1998, Pub.
L. No. 105-62, 111 Stat. 1326 (1997)
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For the expenses necessary to administer and execute the
Formerly Utilized Sites Remedial Action Program to clean up
contaminated sites throughout the United States where work was
performed as part of the nation's early atomic energy program,
$140,000,000, to remain available until expended: Provided, that the
unexpended balances of prior appropriations provided for these
activities in this Act or any previous Energy and Water Development
Appropriations Act may be transferred to and merged with this
appropriation account, and thereafter, may be accounted for as one
fund for the same time period as originally enacted.2
\2\ Id.
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The legislative history behind this provision offers little
guidance regarding the details of the Corps' new involvement. The
Conference Committee report states that ``(t)he conferees have agreed
to transfer the Formerly Utilized Sites Remedial Action Program
(FUSRAP) to the Corps of Engineers, and funding for this program is
contained in Title I of the bill.'' 3 The House
Appropriations Committee report indicates that this change stems from
concerns over the cost of the FUSRAP program under DOE. The Committee
report concludes that ``(c)learly, the problem must be in the contract
management and contract administration function performed by the
Department of Energy and the management and operating contractors who
actually subcontract for most of the cleanup work.'' 4
Finally, citing the Corps' efforts under the Formerly Used Defense
Sites (FUDS) program, the report indicates that there are significant
cost and schedule efficiencies to be gained by ``. . . having the Corps
of Engineers manage the Department of Energy's FUSRAP program as
well.'' 5
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\3\ H.R. Conf. Rep. No. 271, 105th Cong., 1st Sess., 85 (1997).
\4\ H.R. Rep. No. 190, 105th Sess., 99 (1997).
\5\ Id.
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Given the lack of guidance in the legislative history, two members
of Congress sought to clarify the law's intent through subsequent
correspondence. In a November 6, 1997, letter to Energy Secretary
Federico Pena and Defense Secretary William Cohen, Senator Pete
Domenici and Representative Joseph McDade indicated, among other
things, that:
Transfer of the FUSRAP program to the U.S. Army Corps of
Engineers makes management, oversight, programming and budgeting,
technical investigations, designs, administration, and other such
activities directly associated with the execution of remediation
work at the currently eligible sites a responsibility of the Corps
of Engineers. It should be emphasized that basic underlying
authorities for the program remain unaltered and the responsibility
of DOE [emphasis added].
The Energy and Water Development Appropriations Act for fiscal year
1999 (FY99), P.L. 105-245, continued the Corps' involvement as the
implementing agency for the FUSRAP. In particular, the 1999 Act
provided that response actions by the United States Army Corps of
Engineers under FUSRAP shall be subject to the administrative,
procedural, and regulatory provisions of the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) (42
U.S.C. 9601 et seq.), and the National Oil and Hazardous Substances
Pollution Contingency Plan, 40 CFR, Chapter 1, Part 300. In addition,
the 1999 Act provided that, ``* * * except as stated herein, these
provisions do not alter, curtail or limit the authorities, functions or
responsibilities of other agencies under the Atomic Energy Act (42
U.S.C. 2011 et seq.) * * *'' 6
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\6\ Pub. L. No. 105-245, Title I.
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To date, NRC has not regulated activities conducted under FUSRAP,
including those activities conducted by the Corps since the transfer of
the program. The petitioner, however, believes that NRC should regulate
the Corps' FUSRAP activities, arguing that the Appropriations Act did
not purport to transfer authority over FUSRAP to the Corps. As such,
according to the petitioner, the Corps may not legally administer the
program absent proper oversight because, unlike DOE and (in most cases)
DOE contractors, the Corps is not exempt from the licensing
requirements of the Atomic Energy Act (see 42 U.S.C. 2014(s)). The
petitioner further indicates that DOE has publicly stated that it
cannot extend its licensing exemption for private contractors to the
Corps and that DOE has no regulatory authority over the Corps for the
latter's FUSRAP activities. The petitioner concludes that ``* * * the
Corps does not have the legal authority to run FUSRAP without first
obtaining a license from the NRC.''
In support of its position, the petitioner notes that the
institutional mission of the Corps is not focused on the safety and
security of the nation's nuclear activities. In addition, NRC's failure
to regulate the Corps' FUSRAP activities is claimed to be inconsistent
with the intent of the laws governing the utilization and cleanup of
nuclear materials. Finally, the petitioner adds that, with very few
exceptions, Congress intended that no person should be permitted to
handle nuclear materials except in accordance with a license issued by
NRC.
In a November 30, 1998, letter NRC informed the petitioner that the
petition had been received and was currently under review. On the same
date, NRC forwarded the petition to the DOE and the Corps for their
comment. In a January 12, 1999, letter, the Chief Counsel for the
Corps, Robert M. Andersen, responded to NRC's request. DOE responded to
NRC's request in a January 14, 1999, letter from William J. Dennison,
Assistant General Counsel for Environment.
The Corps' Response
In its response, the Corps states that it is not required to obtain
a license from NRC for its FUSRAP activities. The Corps' response
emphasizes that Congress directed the Corps to conduct its FUSRAP
activities pursuant to the CERCLA.7 The Corps' principal
argument is that no NRC license is required because of the federal
permit waiver for on-site removal or remedial actions in Sec. 121(e)(1)
of CERCLA. The Corps also believes that the AEA exempts FUSRAP activity
from NRC licensing. In its opinion, ``Congress intended for USACE to
fill the shoes of the AEC successor agency responsible for FUSRAP
cleanup, that is DOE, an agency not considered a ``person'' subject to
licensing under the AEA.'' The Corps further posits that, in
transferring the FUSRAP program, Congress expressed no intent that the
agency obtain an NRC license for that activity and, instead, sought a
seamless transition ``unimpeded by procedural requirements outside of
CERCLA.''
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\7\ 42 USC 9601 et seq.
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Nevertheless, the Corps commits to meeting the substantive
requirements of both the Atomic Energy Act (AEA) and CERCLA. It
acknowledges that NRC license requirements may apply to portions of
FUSRAP response actions conducted off-site, beyond the scope of the
permit waiver. The letter concludes by acknowledging that the
substantive provisions of NRC regulations are applicable or relevant
and appropriate requirements (ARARs) for many FUSRAP response actions
under CERCLA and, as such, the Corps will look ``... to NRC for
guidance in interpreting and implementing these requirements on the
sites.''
DOE's Response
DOE's response differs in several respects from that of the Corps.
On the
[[Page 16506]]
matter of DOE's continued involvement with FUSRAP and oversight of the
Corps, the Department ``respectfully disagrees'' with the Corps.
According to its submittal, DOE is not authorized to regulate the
Corps' FUSRAP activities and cannot transfer its AEA authorities to the
Corps. In the Department's view, ``(t)he transfer legislation did not
make the Corps a DOE contractor, or otherwise subject the Corps'
activities to the control or direction of DOE.'' The letter also
indicates that DOE and the Corps are currently developing a memorandum
of understanding (MOU) to clarify their respective roles and
responsibilities as a result of the legislative transfer. Nevertheless,
DOE believes that, with the exception of a few ``administrative
issues,'' there are no remaining issues between the two agencies that
should affect NRC's disposition of the NRDC petition. The letter
concludes that NRC should ``evaluate the licensability of the Corps'
activities in the same manner as it would evaluate the activities of
any other `person' within the meaning of the Atomic Energy Act.'' DOE
defers to NRC on this question. The letter does not contain a DOE
position concerning the viability of the Corps' CERCLA argument.
III. Discussion
The NRC staff has completed its evaluation of the petitioner's
requests and the responses from the Corps of Engineers and the
Department of Energy. For the reasons discussed below, the NRC denies
the petitioner's request insofar as it calls on NRC to require the
Corps to obtain a license for activities conducted at FUSRAP sites.
CERCLA Permit Waiver
Pursuant to Sec. 121(e)(1) of CERCLA, ``(n)o Federal, State, or
local permit shall be required for the portion of any removal or
remedial action conducted entirely onsite, where such remedial action
is selected and carried out in compliance with this section.''
8 This provision waives any NRC license requirements that
would apply to the Corps' activities at FUSRAP sites conducted pursuant
to CERCLA.
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\8\ See also, 10 CFR 300.400(e).
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The Corps argues that, because Congress specifically subjected
FUSRAP sites to the provisions of CERCLA in the 1999 Act, section
121(e)(1) applies to Corps' response actions at FUSRAP sites. In
developing regulations for the implementation of CERCLA, the
Environmental Protection Agency (EPA) addressed the Sec. 121(e)(1)
waiver provision for federal agency CERCLA response actions in
Sec. 300.400(e) of the National Contingency Plan (NCP). That provision
states, in pertinent part:
``Permit requirements. (1) No federal, state, or local permits
are required for on-site response actions conducted pursuant to
CERCLA sections 104, 106, 120, 121, or 122. The term on-site means
the areal extent of contamination and all suitable areas in very
close proximity to the contamination necessary for implementation of
response actions.'' 9
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\9\ 40 CFR 300.400(e)(1).
In the preamble of the final rule which proposed this section, EPA
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provided:
Proposed Sec. 300.400(e)(1) states that the permit waiver
applies to all on-site actions conducted pursuant to CERCLA sections
104, 106, or 122; in effect, this covers all CERCLA removal and
remedial actions (all ``response'' actions). However, a number of
other federal agencies have inquired as to whether this language
would reach response actions conducted pursuant to CERCLA sections
121 and 120. In response, EPA has made a non substantive
clarification of the applicability of the permit waiver in CERCLA
section 121(e)(1) to include on-site response actions conducted
pursuant to CERCLA sections 120 and 121. . . . The addition of
CERCLA section 120 simply recognizes that the permit waiver applies
to federal facility cleanups conducted pursuant to CERCLA section
120(e), which are also selected and carried out in compliance with
CERCLA section 121.10
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\10\ 55 FR 8666, 8689 (1990) (``National Oil and Hazardous
Substances Pollution Contingency Plan; Final Rule) (emphasis added).
This change echoed EPA's intentions stated in the proposed rule:
``EPA proposes to state that on-site permits are not required for
response actions taken by EPA, other federal agencies, States, or
private parties pursuant to CERCLA sections 104, 106, or 122.'' 53
Fed. Reg. 51394, 51406 (1988) (``National Oil and Hazardous
Substances Pollution Contingency Plan; Proposed Rule) (emphasis
added).
Section 121(e)(1) applies to federal agencies such as the Corps in
this case. The Corps may take the role of ``lead agency'' in a CERCLA
cleanup action. The NCP defines ``lead agency'' as ``the agency that
provides the OSC/RPM to plan and implement response actions under the
NCP. EPA, the USCG, another federal agency, or a state * * * may be the
lead agency for a response action.'' 11 The NCP also states
that ``Federal agencies listed in Sec. 300.175 have duties established
by statute, executive order, or Presidential directive which may apply
to federal response actions following, or in prevention of, the
discharge of oil or release of a hazardous substance, pollutant, or
contaminant.'' 12 The Corps, a branch of the U.S. Department
of Defense, is among the agencies listed.13 In the case of
the FUSRAP program, Congress specifically designated the Corps as the
``lead agency'' in passing the 1999 Appropriations Act.14
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\11\ 40 CFR 300.5 (emphasis added). The definition goes on to
state, ``The federal agency maintains its lead agency
responsibilities whether the remedy is selected by the federal
agency for non-NPL sites or by EPA and the federal agency or by EPA
alone under CERCLA section 120.''
\12\ 40 CFR 300.170.
\13\ See 40 CFR 300.175(b)(4)(i).
\14\ Pub. L. No. 105-245, Title I.
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As the Corps acknowledges in its letter, the permit waiver in
Sec. 121(e)(1) has been rarely addressed in the courts. In support of
its position, the Corps does cite McClellan Ecological Seepage
Situation (MESS) v. Cheney, a case which held that a Resource
Conservation and Recovery Act (RCRA) permit was not required when
activities which might otherwise require a RCRA permit took place at a
site only as part of a CERCLA removal or remedial action.15
In McClellan, MESS, a citizens' group, filed suit against the Secretary
of Defense, with regard to cleanup actions being taken at McClellan Air
Force Base, under RCRA and certain state laws. MESS claimed, inter
alia, that McClellan was required to obtain a RCRA permit for the
management of certain hazardous wastes on the base. The court held that
an RCRA permit was not required, because the remedial activities were
taken pursuant to CERCLA. The court relied on Sec. 121(e)(1), stating,
``Section 121(e) expressly provides that the activity does not have to
be separately permitted.'' 16
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\15\ 763 F. Supp. 431 (E.D. Cal. 1989). This holding was later
vacated on the basis of subject matter jurisdiction. See McClellan
Ecological Seepage Situation (MESS) v. Perry, 47 F.3d 325 (9th Cir.
1995).
\16\ 763 F. Supp. 431, at 435. The court went on to note in
dicta that where there has been treatment that requires a RCRA
permit which is not associated with a remedial or removal action
under CERCLA, such a permit would be required. Id.
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The Corps also cites United States v. City of Denver to uphold this
interpretation of Sec. 121(e)(1).17 In that case, the court
held that CERCLA preempted a zoning ordinance which was in actual
conflict with EPA's remedial order. The court stated, ``[T]o hold that
Congress intended that non-uniform and potentially conflicting zoning
laws could override CERCLA remedies would fly in the face of Congress's
[sic] goal of effecting prompt cleanups of the literally thousands of
hazardous waste sites across the country.'' 18
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\17\ 100 F.3d 1509 (10th Cir. 1996).
\18\ Id. at 1513. The Corps cited Ohio v. USEPA, 997 F.2d 1520
(D.C. Cir. 1993) in support of its Sec. 121(e)(1) position. NRC
would note that the case upholds a number of provisions in EPA's
1990 revision of the NCP, including Sec. 121(e)(1). However, the
court's discussion centers on EPA's definition of the term
``onsite,'' and does not discuss the exemption provision, as a
whole, in detail.
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[[Page 16507]]
In passing the 1998 and 1999 Appropriations Acts, Congress gave no
indication that it intended to suspend the waiver provision in
Sec. 121(e)(1) of CERCLA in the context of the Corps' FUSRAP
activities. The 1999 Act does say: ``Provided further, That, except as
stated herein, these provisions do not alter, curtail or limit the
authorities, functions or responsibilities of other agencies under the
Atomic Energy Act (42 U.S.C. 2011 et seq.) * * * '' In its letter, DOE
points to this language to support its argument that the Appropriations
Act does not create any authority for it to regulate the Corps. In
doing so, DOE interprets the term ``provisions'' as referring to the
provisions of the Appropriations Act and not the provisions of CERCLA.
The NRC staff agrees with DOE on this point. While the language appears
to indicate that the transfer of the program to the Corps does not
alter the extent of DOE and perhaps NRC authority under the AEA, there
is no specific indication that the language is intended to direct NRC
to regulate the Corps' administration of the FUSRAP program. In
particular, there is no evidence that in including this phrase,
Congress intended to limit the application of the Sec. 121(e)(1) permit
waiver to the Corps' FUSRAP activities. In fact, nowhere in the reports
for either the 1998 or 1999 Acts or in the text of the laws themselves
did Congress give any hint that it intended NRC to regulate the Corps
in its administration of the FUSRAP program. Instead, the inclusion of
the specific reference to CERCLA suggests that Congress intended NRC to
continue to refrain from regulating activities under the FUSRAP program
even after DOE's role was reduced or discontinued.
As DOE states in its letter, the Corps has ``consistently expressed
the view that its authorities under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) * * * '' are
sufficient for the Corps' administration of the FUSRAP program. By the
time the 1999 Appropriations Act was passed, the Corps' administration
of the FUSRAP program under CERCLA was a matter of public record
19 and NRC had not taken any steps to require the Corps to
obtain a license from NRC. If Congress had intended NRC to regulate the
Corps' activities at FUSRAP sites, it is likely that it would have
specifically directed NRC to do so in passing the 1999 Appropriations
Act.
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\19\ See, e.g., Letter from Albert J. Genetti, Jr., U.S. Army
Deputy Commander, U.S. Army Corps of Engineers, to Mr. Thomas B.
Cochran and Ms. Barbara A. Finamore, Natural Resources Defense
Council, May 20, 1998.
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We note, however, that the waiver in Sec. 121(e)(1) does not apply
to off-site activities. To the extent that NRC and U.S. Department of
Transportation (DOT) requirements apply to the transportation, transfer
and disposal of Atomic Energy Act material taken off of FUSRAP sites,
the Corps has committed to following applicable requirements, including
those for transfer under the AEA, shipment under the Hazardous
Materials Transportation Act, 49 U.S.C. 5101, and NRC manifest
requirements (e.g., 10 CFR Sec. 20.2006).20
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\20\ While the Corps will be following NRC's requirements in
this area, it is unlikely that any specific NRC license requirements
would apply to shipments from FUSRAP sites. However, the staff will
request that the Corps contact NRC if it plans to ship material that
does not meet one of the exemptions for a specific license in NRC
regulations. See, e.g., 10 C.F.R. Sec. 71.10.
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NRC Authority Under UMTRCA
Many FUSRAP sites contain material over which NRC would have no
regulatory jurisdiction regardless of whether the Corps is the lead
agency in implementing the program and regardless of whether response
actions by the Corps under the program are subject to CERCLA. In
particular, of the 21 sites at which remediation has not yet been
completed, 12 sites contain residual material resulting from activities
that were not licensed by NRC at the time the Uranium Mill Tailings Act
of 1978 (UMTRCA) became effective or at any time thereafter. As defined
by the UMTRCA, NRC does not have authority to regulate cleanup of
covered residual material resulting from an activity that was not so
licensed.
The language of section 83 of the Atomic Energy Act (42 U.S.C.
2113(a)), was added to that Act by UMTRCA. Section 83 a. requires NRC
to impose certain terms and conditions relating to cleanup with respect
to any ``license issued or renewed after the effective date'' of
section 83 for covered activities, and also imposes such terms or
conditions on any such ``license in effect on the date of enactment''
of the section. No such responsibility was imposed upon NRC with
respect to activities that were not under NRC license before the date
of the enactment of section 83, if they were not licensed thereafter.
Prior to the enactment of UMTRCA, neither the AEC nor the NRC had
statutory jurisdiction over residual material resulting from the
processing of ore for source material. This position was taken by the
AEC after careful legal analysis, and was subsequently adopted by the
NRC when it succeeded to the AEC's regulatory functions. Though NRC
exercised some control over such material in connection with licensed
processing of ore for source material, it did not exercise jurisdiction
at inactive sites where no license was in effect. UMTRCA was enacted
because the Congress recognized that NRC did not have jurisdiction over
radioactive residuals resulting from the extraction of uranium or
thorium from ore processed for its source material content at inactive
sites. This is evidenced by the floor remarks regarding the amended
version of H.R. 13650, the bill that was enacted as UMTRCA. Senator
Hart explained:
Although the NRC licenses active uranium mining and milling
activities, existing law does not permit the Commission to regulate
the disposal of mill tailings once milling and mining operations
cease and the operating license expires. It is that authority to
regulate tailings after milling operations cease, that we propose be
given to the NRC.21
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\21\ 124 Cong. Rec. S18,748 (October 13, 1978).
Because the residual material at many FUSRAP sites was generated in
activities that were not licensed when UMTRCA was enacted, or
thereafter, NRC today has no basis to assert any regulatory authority
over handling of the residuals at those sites.
The NRC staff notes that many of the remaining sites (i.e., sites
containing materials other than mill tailings) also raise some
significant jurisdictional questions in their own right. For instance,
a few of the sites may still be in legal possession of DOE even though
the Corps is conducting clean up at the site under FUSRAP. While the
issue of possession appears to be a matter of continuing discussion
between the Corps and DOE, it is highly unlikely that NRC would have
authority to require a license for cleanup activities conducted at a
site which continues to be a DOE-owned or controlled site. In addition,
the concentration of radioactive material at some of the remaining
sites may not be sufficient to trigger NRC license requirements. While
NRC does not have information sufficient to reach a final conclusion
for specific sites, it is the NRC staff's understanding that some of
these sites may contain only ``unimportant quantities'' of source
material as defined under 10 CFR Sec. 40.13(a). If this is the case,
the amount of material at these sites would not be sufficient to
implicate NRC license requirements. Given the limitations of NRC
jurisdiction under UMTRCA, the potential DOE ownership issues, and the
possibility that several sites may
[[Page 16508]]
contain ``unimportant quantities'' of source material, it is likely
that the number of FUSRAP sites over which NRC may have jurisdiction
would be very small even absent the CERCLA permit waiver.
The Corps' Authority Under the Appropriations Act
In its response, the Corps states that the AEA also exempts FUSRAP
activity from NRC licensing because Congress intended the Corps to fill
the shoes of DOE, an agency exempt from NRC regulatory requirements
under most circumstances. DOE disagrees with this characterization,
claiming that, for the most part, it has no role in the FUSRAP program
at this time (regulatory, contractual, or otherwise). As such, in DOE's
view, the Corps cannot rely on any exemption in the AEA to avoid
regulation by NRC. Nevertheless, DOE acknowledges that the transfer to
the Corps did not completely eliminate the Department's involvement
with FUSRAP. While the issues have yet to be resolved, DOE may have
responsibility for inventory reporting of government-owned FUSRAP sites
to the General Services Administration and may be required to conduct
post-cleanup monitoring at some sites after the Corps' clean up
activities cease.
DOE and the Corps are working on an MOU to address their
disagreements regarding the nature of the transfer of the FUSRAP
program and their respective responsibilities under the program. Until
the disagreement has been resolved, either by the agencies or by
further direction from Congress, the NRC staff need not reach a
conclusion on the matter. Nevertheless, in view of the clear
applicability of CERCLA Sec. 121(e)(1) to the Corps' activity at FUSRAP
sites, the staff does not believe that it would be appropriate to
require the Corps to obtain an NRC license for its activity at FUSRAP
sites.
IV. Conclusion
In sum, Congress has given NRC no clear directive to oversee
USACE's ongoing effort under CERCLA to complete the FUSRAP cleanup
project. Indeed, Congress has provided NRC no money and no personnel to
undertake an oversight role. In addition, Congress has made it clear
that the Corps is to undertake FUSRAP cleanup pursuant to CERCLA which
waives permit requirements for onsite activities. In these
circumstances, we are disinclined to read our statutory authority
expansively, and to commit scarce NRC resources, to establish and
maintain a regulatory program in an area where, under Congressional
direction, a sister federal agency already is at work and has committed
itself to following appropriate safety and environmental standards.
Accordingly, I deny the petition insofar as it requests NRC to
impose licensing and other regulatory requirements on the Corps for
that agency's handling of radioactive material at FUSRAP sites. Both
the permit waiver provision of CERCLA and the ambiguity regarding DOE's
role in the program lead me to the conclusion that NRC should not
inject itself into the FUSRAP program at this time. Absent specific
direction from Congress to the contrary, NRC will continue to refrain
from regulating the Corps in its clean up activities at FUSRAP sites.
As provided by 10 C.F.R. Sec. 2.206, 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 26th day of March 1999.
For the Nuclear Regulatory Commission.
Carl J. Paperiello,
Director, Office of Nuclear Material Safety and Safeguards.
[FR Doc. 99-8315 Filed 4-2-99; 8:45 am]
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